Sampi v State of Western Australia [2005] FCA 777

FEDERAL COURT OF AUSTRALIA

NATIVE TITLE – native title determination application – recognition of native title – principles – Native Title Act 1993 (Cth) – statutory purpose – native title claim group – composite group – whether two distinct societies at sovereignty – continuity and evolutionary change post-sovereignty – native title rights and interests – clan and family estates – whether native title held by native title claim group or distinct estate groups – vacant estates – whether native title lost – connection – nature of relationship to land and waters – offshore rights – intertidal zone – reefs – extinguishment – operation of ss 47A and 47B of Native Title Act – occupy – previous exclusive possession acts – pearl oyster farm lease – whether commercial lease – whether lease for aquacultural purposes – whether extinguishment of ceremonial and subsistence rights by pearling legislation

Native Title Act 1993 (Cth)

Ward v Western Australia (2002) 213 CLR 1 cited

Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 cited

Commonwealth v Yarmirr (2001) 208 CLR 1 cited

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

Neowarra v Western Australia (No 1)(2003) 134 FCR 208 cited

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 cited

HG v The Queen (1999) 197 CLR 414 cited

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 cited

Gumana v Northern Territory of Australia [2005] FCA 50

Fejo v Northern Territory (1998) 195 CLR 96 cited

Wik Peoples v Queensland (1996) 187 CLR 1 cited

Western Australia v Commonwealth (1995) 183 CLR 373 cited

Yanner v Eaton (1999) 201 CLR 351 cited

R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 cited

De Rose v State of South Australia (No 2) [2005] FCAFC 110 cited

Ward v State of Western Australia (1998) 159 ALR 483 cited

Wandarang People v Northern Territory (2000) 104 FCR 380 cited

Hayes v Northern Territory (1999) 97 FCR 32 cited

Western Australia v Ward (2000) 170 ALR 159 cited

Passi on behalf of Mariam People v Queensland [2001] FCA 697 cited

Rubibi Community v Western Australia (2001) 112 FCR 409 cited

Daniel v Western Australia [2003] FCA 666 cited

Erubam Le (Darnley Islanders) (No 1) v State of Queensland (2003) 202 ALR 312 cited

PAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI AND JAWI PEOPLE v THE STATE OF WESTERN AUSTRALIA

WAD49 OF 1998

JIMMY EJAI AND OTHERS ON BEHALF OF THE BARDI AND JAWI PEOPLE v THE STATE OF WESTERN AUSTRALIA

WAD6001 OF 2004

FRENCH J

10 JUNE 2005

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD49 OF 1998

BETWEEN:	PAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE APPLICANTS
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS
JUDGE:	FRENCH J
DATE OF ORDER:	10 JUNE 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is amended pursuant to the applicants’ motion filed 27 February 2004 so far as it relates to the land and waters the subject of the application, the native title rights and interests claimed and the addition of Benedict Dilay to the list of apical ancestors.

2. The applicants are to file and serve a draft determination to give effect to these reasons within twenty eight (28) days.

3. The Kimberley Land Council, as representative of the applicants, is requested to indicate whether the applicants intend to have their native title held in trust and if so to:

(a) nominate in writing, given to the Court within twenty eight (28) days, or such further period as the Court may allow, a prescribed body corporate to be trustee of the native title;

(b) include with the nomination the written consent of the body corporate.

4. There is liberty to apply.

5. The application is listed for further directions on 11 July 2005 at 9.30am.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD6001 OF 2004

BETWEEN:	JIMMY EJAI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE APPLICANTS
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS
JUDGE:	FRENCH J
DATE OF ORDER:	10 JUNE 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

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

Index
Introduction Procedural History	[1] – [12] [13] – [36]
The land and waters covered by the application	[37] – [41]
The native title rights and interests claimed – Bardi Jawi No 1	[42] – [44]
Bardi Jawi No 2 – Brue Reef – The claimant group, the area under claim and the native title rights and interests claimed	[45] – [47]
Evidence of Aboriginal witnesses	[48] – [631]
(i) Frank Davey	[52] – [90]
(ii) Aubrey Tigan	[91] – [130]
(iii) Jimmy Ejai	[131] – [164]
(iv) Khaki Stumpagee	[165] – [191]
(v) Maryanne Doyle	[192] – [201]
(vi) Mercia Angus	[202] – [212]
(vii) Bernadette Angus	[213] – [244]
(viii) Laurel Angus	[245] – [251]
(ix) Madeleine Gregory	[252] – [258]
(x) M Coomerang (deceased)	[259] – [277]
(xi) J Rock (deceased)	[278] – [280]
(xii) Victor James	[281] – [294]
(xiii) Elizabeth Puertollano	[295] – [314]
(xiv) Paul Patrick Sampi	[315] – [356]
(xv) Rosie Bin Sali	[357] – [380]
(xvi) F Bin Sali (deceased)	[381] – [398]
(xvii) Khaki’s wife (deceased)	[399] – [401]
(xviii) D Davey Senior (deceased)	[402] – [452]
(xix) Irene Mary Davey	[453] – [469]
(xx) Charlie Coomerang	[470] – [472]
(xxi) H Angus (deceased)	[473] – [478]
(xxii) Barry Stumpagee	[479]
(xxiii) Leslie Stumpagee	[480]
(xxiv) Kevin Puertollano	[481] – [483]
(xxv) B Lauder (deceased)	[484] – [488]
(xxvi) Kevin George	[489] – [543]
(xxvii) Joe Sammat	[544] – [546]
(xxviii) Terry Sammat	[547] – [548]
(xxix) Eugenia George	[549] – [550]
(xxx) Vincent Angus	[551] – [588]
(xxxi) Joe Davey	[589] – [604]
(xxxii) David Wiggan	[605] – [608]
(xxxiii) Anna Phillips	[609] – [613]
(xxxiv) Esther Albert	[614]
(xxxv) Phillip Albert	[615] – [617]
(xxxvi) Aggie Ishmael	[618]
(xxxvii) Rosa Tigan	[619] – [631]
Gender restricted evidence from Aboriginal witnesses	[632] – [641]
Historical Evidence	[642] – [718]
Archaeological Evidence	[719] – [759]
Linguistic Evidence	[760] – [782]
Anthropological Evidence – approaches to admissibility and weight	[783] – [805]
Anthropological Evidence	[806] – [937]
Statutory Framework – recognition of native title under the Act	[938] – [947]
The recognition of native title	[948] – [964]
Issues for determination	[965] – [1128]
Issue 1- Whether Bardi and Jawi were one Aboriginal society acknowledging one set of traditional laws and customs at annexation	[967] – [1048]
Issue 2 – The identity of the native title holding group	[1049] – [1050]
Issue 3 – Whether there is a body of traditional law and custom which has been in existence since sovereignty	[1051] – 1055]
Issue 4 – What native title rights and interests are possessed under traditional law and customs	[1056] – [1074]
Issue 5 – Whether by their traditional laws and customs the applicants have a connection with the land and waters of the claim area	[1075] – [1079]
Issue 6 – Whether the rights and interests which exists under traditional law and custom are recognised by the common law of Australia	[1080] – [1081]
Issue 7 – What are the lands and waters in respect of which a native title determination can be made	[1082] – [1116]
Issue 8 – To what extent has native title been extinguished	[1117] – [1128]
The extinguishing effect of the grant of mainland interests	[1129] – [1150]
Conclusion	[1151] – [1152]

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD49 OF 1998

BETWEEN:

PAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE

APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS

RESPONDENTS

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD6001 OF 2004

BETWEEN:

JIMMY EJAI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE

APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS

RESPONDENTS

JUDGE:	FRENCH J
DATE:	10 JUNE 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 In 1995 the Bardi and Jawi people of the Dampier Peninsula and the islands of the Buccaneer Archipelago filed an application for a native title determination in the National Native Title Tribunal (the Tribunal). That application was subsequently referred to this Court for determination. The application has been the subject of two trials. The first, held in 2001, could not be completed because of the illness of the trial judge. The second trial was conducted in 2003 and took in the transcript of evidence and exhibits tendered at the first. Closing submissions were made in March 2004. As foreshadowed in the closing submissions a second application was filed to include the Brue Reef area which had not been included in the first application. Directions were made that the second application be determined at the same time as the first and on the basis of the evidence heard in the first application. However the second application had to go through a statutory process of notification before it could be determined. That process was completed in December 2004.

2 The case has proven to be procedurally complex and factually difficult.

3 The Bardi and Jawi people brought their application, which covered what they asserted was their traditional country, on the basis that although they were distinct but closely related groups they formed one society of native title holders for the purpose of a native title determination application.

4 For the reasons which I explain below, I was not able to be satisfied that they were one society at the time of the colonisation of Western Australia. The probability is that they were two distinct although closely related societies which held their own traditional territories under very similar bodies of traditional Law and custom. With the passage of the years since colonisation and the numerical superiority of the Bardi, the movement of Bardi people into the island areas to the north of the mainland and a substantial degree of intermarriage between Bardi and Jawi people together with a sharing of cultural ceremonies, they have reached the point where today, at least as between Bardi and Jawi in the claim area, they regard themselves as one people. In reaching that conclusion I am satisfied that the traditional Bardi society which existed at the time of colonisation has maintained the continuity of its existence, albeit increasingly Jawi people have come to form part of it. This has been aided by intermarriage.

5 The practical consequence is that I am prepared to make a native title determination in relation to the traditional territory of the Bardi which I hold to be the mainland Dampier Peninsula south to the vicinity of Barrambar at Pender Bay in the west and Cunningham Point on the east. Given that I am of the view that all of the applicants form part of contemporary Bardi society I am prepared to make a determination in favour of all of them as to the whole of the area to which I have referred. This is less the parts which have been excluded because of extinguishment of native title rights and interests by the grant of other interests. I do not extend that determination to the islands to the immediate north of the mainland as I am not satisfied that they were part of traditional Bardi territory at sovereignty.

6 As to the offshore areas I am satisfied that native title rights and interests subsist in the intertidal zone and associated reefs and nearby reefs which are exposed and were referred to in the evidence. I do not include among those the rock feature known as Lalariny. The definition of those offshore areas in the determination will require some assistance from the parties.

7 The determination that I will make is that the applicants hold the native title rights and interests as a group. In so determining I do not accept the submissions that native title rights and interests should only be determined on the basis of estate areas currently occupied. This reflects my view of the unitary character of the traditional law and custom under which the applicants’ native title rights and interests in the area of the proposed determination arise. The rights in the determination will include the right as against the whole world to the possession and occupation of the land component of the determination area. The lesser rights in the offshore areas are non-exclusive rights which generally reflect the terms of the proposed determination. The determination does not recognise any native title rights in Alarm Shoals or in Brue Reef. That is not to say that those two areas do not have great significance for Bardi and Jawi people. In the case of Alarm Shoals I conclude that the nature of the native title rights being asserted essentially involves a right to exclude people from entering that area. Such a right is not recognised by the common law in offshore areas. In relation to Brue Reef, while the evidence established its mythological significance, it did not establish that native title rights and interests devolved on the applicants under their traditional law and custom.

8 I have made some specific findings about extinguishment. I find that the benefit of ss 47A and 47B of the Native Title Act 1993 (Cth) (the Act) attaches to areas of Crown land in the mainland area which have been the subject of historic extinguishing events. I also hold that the benefit of ss 47A and 47B of the Act extends to the intertidal zone and that at the time the first application was made both the mainland and the intertidal zone could properly be said to have been occupied by the applicants.

9 I find that native title rights and interests have not been extinguished by the grant of expired pearl oyster farm leases. I hold that such leases fall within the definition of leases for aquacultural purposes under the Act and therefore are not previous exclusive possession acts of the State of Western Australia under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA). I also reject the submission, based upon pearling legislation, that the applicants are unable to invoke the provisions of s 211 of the Act to continue to enjoy their rights to the use of pearl shell for purely ceremonial purposes and the taking of oysters for subsistence in accordance with their traditional laws and customs.

10 The form of determination I propose will incorporate the following native title rights and interests:

(1) In relation to:

(a) unallocated Crown land where there are no prior inconsistent grants;

(b) unallocated Crown land where there were prior inconsistent grants to which s 47B applies;

the native title rights and interests of the Bardi/Jawi people are the rights of possession and occupation of the land as against the whole world including the following rights:

(a) the right to live on the land;

(b) the right to access, move about on and use the land;

(d) the right to engage in spiritual and cultural activities on the land;

(e) the right to access, use and take any of the resources of the land (including ochre) for food, shelter, medicine, fishing and trapping fish and weapons for hunting and otherwise for ceremonial, cultural and artistic purposes;

(f) the right to refuse, regulate and control the use and enjoyment by others of the land and its resources;

(g) the right to have access to and use the water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.

(2) In relation to the intertidal zone together with reefs within and adjacent to that zone and offshore reefs otherwise exposed and traditionally used by the Bardi/Jawi people together with the waters in their immediate vicinity the native title rights and interests are:

(a) the right to access, move about in and on and use and enjoy the zone, the reefs and the associated waters;

(b) the right to hunt and gather including for dugong and turtle;

(c) the right to access, use and take any of the resources thereof (including the water of the intertidal zone) for food, trapping fish, religious, spiritual, cultural, ceremonial and communal purposes.

11 The extinguishing interests and the interests to which native title rights and interests are subject are otherwise referred to in these reasons for judgment and will have to be provided for in the draft determination in accordance with the requirements of s 225 of the Act.

12 It will be necessary for the applicants to submit a draft determination to give effect to these reasons and I will give directions to enable that to be done. In order to reduce any dispute that may arise about the terms of the draft determination I recommend that the Tribunal be asked to facilitate agreement about the terms so far as that is achievable.

Procedural history

13 The long and complex history of these proceedings commenced with the lodgment of an application for a determination of native title at the Tribunal on 1 September 1995. The application was lodged in the name of the Bardi and Jawi People. It covered an area of over 5,500 square kilometres of land, seas and reefs in the North Dampier and King Sound regions of the Western Kimberley north east of Broome covering the northern part of Cape Leveque and bays and islands around it.

14 The application was lodged by Paul Sampi and a number of other named applicants, seven of whom have since died. The Bardi and Jawi native title claim group on whose behalf it was lodged was defined as the descendants of 38 named persons together with persons adopted by those descendants ‘in accordance with Bardi and Jawi traditions and customs’.

15 The application was accepted by the Tribunal and registered by it on 15 April 1996 in accordance with the provisions of the Act as it then stood. A process of public notification of the application followed and resulted in some 155 bodies and persons becoming parties to it. In the event, the principal protagonists were the State of Western Australia (the State), the Commonwealth of Australia (the Commonwealth), the Western Australian Fishing Industry Council (WAFIC) and Telstra.

16 Mediation of the application was attempted with an initial mediation conference convened by the Tribunal in October 1996. No resolution had been reached by 14 April 1998 and on that date the President of the Tribunal directed the Registrar, under s 74 of the Act, to lodge the application in the Federal Court.

17 On 24 August 1999, the Court ordered that the application be amended in accordance with a minute dated 18 August 1999.

18 The application was the subject of pre-trial case management and directions hearing over the following year. The matter was then transferred from the docket of Lee J to Beaumont J. On 10 November 2000, Beaumont J directed that the trial of the application commence in Broome in the first week of May 2001. In March and April 2001 the parties filed submissions in respect of gender restricted evidence and orders were made on 20 April 2001 allowing access to such evidence by male counsel subject to undertakings not to divulge it to any other person.

19 The trial commenced in Broome on 8 May 2001. After the opening by Mr McIntyre, who then appeared for the applicants, evidence was heard from various of the applicants and members of the native title claim group at a number of locations in the area the subject of the application. This evidence was heard on 8-10, 14-18 and 21 May 2001 and 18-22 and 25-29 June 2001. Evidence from expert witnesses and from the respondents’ witnesses was heard in Perth on 10-12 and 14-15 September 2001. The applicants closed their case on 15 September 2001. Beaumont J made orders on 18 September 2001 for the filing of written submissions on factual matters in October and November 2001. Oral submissions were heard in Perth on 13, 15 and 16 November 2001. Further written submissions were filed by the Commonwealth and WAFIC on 6 and 12 December 2001.

20 While some legal submissions were dealt with in oral argument, final submissions on the law were adjourned to a date to be fixed following the delivery of the judgment of the High Court in the Mirriuwung Gajerrongnative title determination application. The High Court delivered that judgment on 8 August 2002 – Ward v Western Australia (2002) 213 CLR 1. On 28 August 2002, Beaumont J made orders, which were amended on 9 December 2002, requiring the filing of submissions on the question of extinguishment and on the law relied upon in support of the application taking into account the judgment of the High Court in Ward. The hearing of final submissions was then listed for 4-6 February 2003. On 12 December 2002, the High Court delivered its decision in the Yorta Yorta case: Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.

21 On 30 January 2003, the applicants filed a motion seeking leave to reopen their case to take further evidence. The application for leave to reopen the case was made on the basis that the judgments of the High Court in Commonwealth v Yarmirr (2001) 208 CLR 1, Ward and particularly in Yorta Yorta, provided a more developed exposition of the matters which had to be proven in an application for a native title determination.

22 It was submitted to Beaumont J by senior counsel for the applicants, who was by then Mr Bell QC, that on the prior understanding of the law derived from Mabo v Queensland (No 2) (1992) 175 CLR 1 it had not seemed necessary to show that the society out of which the relevant body of laws and customs arose had continued to exist as a body united by its acknowledgement and observance of its traditional laws and customs since the assertion of sovereignty. Nor had it seemed necessary to show that the laws or customs in which those rights or interests found their origins must be laws or customs having a normative content and deriving therefore from a body of norms or a normative system which existed before sovereignty. Outlines of the proposed statements of evidence somewhat awkwardly designated ‘substances of evidence’ to be given by the witnesses whom it was sought to recall were submitted to his Honour.

23 Beaumont J found difficulty with the generality of the bases propounded by the applicants’ in support of their application to call further evidence. No attempt had been made to refer the outlines of evidence tendered back to evidence already given or omitted to be given. However his Honour took into account the age of witnesses proposed to be recalled. Each was a senior citizen. Already at that time several of the original applicants had died. His Honour said:

‘In my opinion, the only feasible way to manage the litigation at this stage is to take the evidence as ‘preservation’ evidence only at this point in the form of oral questions in chief and to allow cross examination. I will then hear submissions on what, if any, of this evidence should be allowed by way of re-opening. In saying this, I bear in mind the futility of my attempting, without the benefit of Counsels’ submissions, to ‘match up’ the information in the ‘substances’ against the evidence given, or not given, at the trial over a four week hearing.’

His Honour then stood the matter over to a date to be fixed for the purpose of giving directions required for the taking of the preservation evidence. In the event the hearing of the ‘preservation’ evidence was set down in Broome before Beaumont J in the period 30 June 2003-4 July 2003.

24 On 27 May 2003, the parties were advised by the Court that because of illness Beaumont J would no longer be able to continue as trial judge. Subsequently the application was transferred to my docket and a new trial constituted. Orders were made by consent on 24 June 2003 in the following terms:

‘1. There will be a new trial in these proceedings conducted in accordance with the following directions.

2. Subject to further order, the trial be listed for hearing during the period 30 June to 5 July 2003, or such further period as may be required, for the purpose of:

(a) adducing evidence (subject to objection) to the effect set out in the 13 substances of evidence as annexed to the affidavit of Krysti Justine Guest affirmed 1 April 2003 (Exhibit “KG1”); and

(b) conducting a Court view of the land and waters within the area the subject of the application.

3. By 23 June 2003 each Respondent is to file and serve notice of any part of any substance of evidence in respect of which the Respondent requires the witness’s (sic) evidence to be given orally.

4. Subject to further order, the evidence in the trial is to comprise:

(a) the transcript of evidence previously heard by Justice Beaumont;

(b) exhibits previously received in evidence by Justice Beaumont;

(c) evidence in chief to the effect set out in the substances of evidence referred to in order 2 above, and cross-examination and re-examination in respect thereof; and

(d) such further documents or materials as may be received in evidence.

5. The Court may also have regard to any part of the record of these proceedings, including:

(a) all transcript of proceedings;

(b) all documents filed in the proceedings; and

25 The new hearing was conducted in Broome from 30 June to 2 July 2003. The Court visited sites on the Dampier Peninsula and surrounding waters on 5 July 2003.

26 The applicants foreshadowed further amendment of the application by revision of the native title rights and interests claimed, reduction of the seaward boundary of the claim to 3 nautical miles except around Brue Reef and Alarm Shoals and extension of the claim area to cover the whole of Brue Reef. On 21 August 2003, I made directions requiring the applicants to file and serve any motion to amend with supporting affidavits and submissions by 12 September 2003. Directions were also made for the filing of submissions on the law and facts generally. The time limits were extended by a further order made on 24 September 2003.

27 The applicants filed a notice of motion on 23 October 2003 seeking leave to amend the application as it stood at 18 August 1999 as follows:

‘(a) To reduce the area of waters claimed to that area of waters that is not beyond the 3 nautical mile limit, with the exception of Alarm Shoals which will remain claimed in whole and Brue Reef for which the claim will not be reduced;

(b) Further in respect of Brue Reef, to include the whole of Brue Reef in the area claimed;

(c) To substitute for the rights and interests claimed in respect of the land and waters the rights and interests set out in the draft determination that is exhibit ‘’ (sic) to the affidavit of Krysti Guest dated 17 October 2003.’

28 Final submissions in respect of the application were heard on 2, 3 and 4 March 2004. A motion was filed on 27 February 2004, argument on which was heard at that time. This effectively widened the range of amendments sought by the earlier motion filed on 23 October 2003. The amendments sought were as follows:

‘(a) To reduce the area of waters claimed to that area of waters that is not beyond the 3 nautical mile limit with the exception of Alarm Shoals which will remain claimed in whole and Brue Reef for which the claim will be reduced to within the 12 nautical mile limit.

(b) Further in respect of Brue Reef, to include the whole of Brue Reef in the area claimed;

(d) To remove the name ‘Tom Wiggin’ from the named applicant list, being a deceased person;

(e) To include the apical ancestors of the Mayala Jawi not included in Schedule A;

as set out in the amendment application which is marked exhibit ‘KJG1’ to the affidavit of Krysti Justine Guest affirmed 27 February 2004.’

29 On the same day, a second native title determination application, referred to as Bardi Jawi No 2 was filed in the Court. Jimmy Ejai filed the application on behalf of the Bardi and Jawi People. The object of filing the new claim was to ensure that so much of Brue Reef as had been mistakenly excluded from the principal Bardi Jawi application was covered.

30 In the course of final submissions for the applicants, their senior counsel informed the Court of the lodgment of the new application and also predicted that there would be an application to amend the adjacent Mayala claim by contracting it to exclude any part of Brue Reef. Related to that contraction was the application for leave to include in the native title claim group Mayala people who are the descendants of the last three named persons in Schedule A of the amended application.

31 I reserved on the proposed amendments to the Bardi Jawi No 1 application set out in the motion of 27 February 2004. I now allow the amendment insofar as it contracts the area of land and waters covered by the application. The precise description of the area necessary to give effect to that aspect of the amendment includes geospatial references which were prepared by the National Native Title Tribunal and ultimately set out in Exhibit KGJ-1 to an affidavit of the Kimberley Land Council solicitor, Krysti Justine Guest, sworn 1 July 2004.

32 The proposed addition of a part of Brue Reef would have involved expansion of the existing application which is not permitted under the Act. This aspect of the amended motion is refused. The difficulty has been overcome by the lodgment of the Bardi Jawi No 2 application referred to above.

33 I will allow the amendments to the principal application in so far as it alters the native title rights and interests claimed which are set out in the next section of these reasons. The affidavit in support of the amendment to the application sworn by Krysti Guest, a solicitor at the Kimberley Land Council, indicates that she was instructed at meetings of the Bardi and Jawi claim group on 4 December 2003 and 17 February 2004 to lodge the amendment application. Affidavits were provided by six of the twelve named applicants in this regard. They were Paul Sampi, Dennis Davey, Jimmy Ejai, Rosie Bin Sali, Khaki Stumpagee and Mercia Angus. Of the remaining six named applicants four have died and two were suffering from dementia and lacked the necessary capacity to swear an affidavit. In my opinion the proposed amendments to the native title rights and interests seem to be aligned to the case now presented by the applicants and not to cause any unfair prejudice to the respondents.

34 As to the addition of the three Mayala apical ancestors which is also proposed, I do not consider that that amendment should be allowed. Reference to those ancestors might well have affected the conduct of the case. The amendment being disallowed on that basis it is unnecessary questions to authorisation in relation to it which were raised by the respondents. In any event, having regard to the conclusions I have reached about the relevant community of native title holders, I do not see any way in which the addition of those Jawi/Mayala ancestors could affect the outcome of the application.

35 On 7 April 2004, Nicholson J ordered that unless a respondent was to advise the District Registrar that it did not wish to be a respondent to the Bardi Jawi No 2 native title determination application all respondents to the primary application would be respondents to Bardi Jawi No 2. His Honour further ordered that the pleadings, evidence and submissions in the principal proceedings stand as pleadings, evidence and submissions in Bardi Jawi No 2 and that the latter application be determined concurrently with the former.

36 On 14 October 2004, I made orders in the Mayala claim reducing the claim area so as to exclude that part of Brue Reef which was included in Bardi Jawi No 2. The notification in respect of Bardi Jawi No 2 ended on 21 December 2004 and no additional parties sought joinder. For ease of reference the original application which initiated the present proceedings will be referred to as Bardi Jawi No 1.

The land and waters covered by the application

37 The land and waters for which the applicants seek a native title determination is described in the Register of Native Title Claims relevant to the original application as ‘... land, waters, water courses, reefs, seas and seabed in the Northern Dampier and King Sound Regions of the Western Kimberley – Lombadina and One Arm Point WA’.

38 The area is most conveniently described in its entirety by reference to the map attached to the Bardi and Jawi (No 1) application. The claim area encompasses land and waters in and around the Dampier Peninsula near King Sound north-east of Broome. It extends from a point below Perpendicular Head at its south-west corner, across the Dampier Peninsula to a point 3 nautical miles from the east coast of the Peninsula. The eastern boundary of the claim follows the 3 nautical mile limit north passing to the east of Sunday Island up to the northern most point of the area save for a discrete part of Brue Reef further to the north. The western boundary follows the 3 nautical mile limit north along the west coast of the Dampier Peninsula.

39 The southern boundary of the claim area runs in a straight line, east/west transecting the Dampier Peninsula and cutting the coastline on the east at Goodenough Bay in King Sound and on the west at a point to the west of Bell Point in Pender Bay. It then proceeds north into the centre of Pender Bay, then west again passing over the waters to the north of Perpendicular Head and Emirau Point to intersect with the 3 nautical mile mark. It does not include Perpendicular Head or Middle Lagoon. The land part of the southern boundary is roughly congruent with the northern boundary of Aboriginal Reserve 1834. Subject to internal exclusions, all of the Peninsula north of the southern boundary thus described is included in the claim. The seaward eastern boundary of the claim encompasses waters to the east of Cunningham Point, Deep Water Point and Willie Point. It includes Cygnet Bay and covers Sunday Island and associated islands in the Buccaneer Archipelago. On the western side, the claim boundary proceeds roughly in a north/easterly direction covering waters including Pender Bay, Packer Island and Thomas Bay.

40 The written description of the external boundaries of the application in Bardi Jawi No 1 was as set out in Schedule B of the amended application of August 1999 subject to its contraction by amendment to limit the offshore part of the claim to waters within three nautical miles of the coast. The description of the external boundaries of the land and waters now covered by the Bardi Jawi No 1 application is in the following terms:

‘Commencing at the intersection of the three nautical mile limit and native title determination application WAG6255/98 Mayala (WC98/39) at Latitude 16.130035ºS, and extending generally southerly coincidental with that native title determination application, passing through the following points:

Latitude Sº	Longitude Eº
16.166276	123.136837
16.311724	123.251283
16.333598	123.268504
16.466374	123.301283
16.599152	123.201283
16.748595	123.378165
16.782207	123.417948
16.794801	123.417959

Then west to a point on the northern boundary of Reserve 1834 at Longitude 123.140564ºE then generally westerly along the northern boundaries of that reserve to Longitude 122.663627ºE.

Then north to a point in Pender Bay at Latitude 16.751355ºS, then west to intersect the three nautical mile limit, then generally north-easterly along the three nautical mile limit to a southern boundary of Alarm Shoal at Latitude 16.322907ºS, then generally westerly and generally north-easterly along the boundaries of Alarm Shoal to again intersect the three nautical mile limit, passing through the following points:

Latitude Sº	Longitude Eº
16.322907	122.916127
16.324328	122.910444
16.323144	122.908550
16.320776	122.908550
16.318172	122.911155
16.315330	122.918732
16.315093	122.926072
16.315162	122.928403

Again generally north-easterly along the three nautical mile limit back to the commencement point.’

41 The area covered by Bardi Jawi No 2 is described broadly in the following terms:

‘ ... that part of Brue Reef that lies within the twelve nautical mile limit and falls east of a line defined by the following coordinate points:

Longitude Eº	Latitude Sº
123.034613	15.898597
123.136837	16.166376

Being a western boundary of native title determination application WG6255/98 Mayala (WC98/39).’

The native title rights and interests claimed – Bardi Jawi No 1

42 The native title rights and interests claimed in the Bardi Jawi No 1 application as amended at August 1999 comprised rights to the possession, occupation, use and enjoyment of the area as against the whole world. These were said in particular to comprise a number of specified rights relating to access, the control of access, the use and enjoyment of resources and the control thereof, the right to trade in resources and to receive a portion of resources taken by others and the right to maintain and protect places of importance under traditional laws, customs and practices. Also claimed was a right to maintain, protect and prevent the misuse of cultural knowledge. These claimed rights were subject to various exceptions relating to the effect of laws of the State and Commonwealth and interests created thereunder.

43 An amended draft determination filed on 23 October 2002 pursuant to orders made by Beaumont J on 28 August 2002 claimed different sets of native title rights and interests in relation to unallocated Crown land and land subject to ss 47A and 47B of the Act on the one hand and offshore waters, shoals and reefs on the other. In relation to unallocated Crown land and land subject to ss 47A and 47B the native title rights and interests said to be possessed by the applicants was ‘the entitlement as against the whole world to possession, occupation, use and enjoyment of the land and waters’. In relation to offshore waters, shoals and reefs native title rights and interests were set out in the draft determination at some length commencing with a right of non-exclusive possession, occupation, use and enjoyment. It is not necessary for present purposes to set out the full terms of the native title rights and interests claimed in the amended draft determination in relation to offshore waters, shoals and reefs.

44 Pursuant to the applicants’ motion filed on 27 February 2004, the principal application has been further amended to vary the native title rights and interests claimed. This was effected by a substitution of the existing Schedule E to the amended application with what amounted to a new Schedule E. The terms of the native title rights and interests claimed as set out in the now amended application are as follows:

‘1. In relation to the:

(a) UCL where no prior inconsistent grants;

(b) UCL where prior inconsistent grants to which s47B applies;

the native title rights and interests of the Bardi and Jawi people claimed are the rights of possession, occupation, use and enjoyment of the land as against the whole world including, without derogating from this general right, the following rights:

(i) the right to speak for and make decisions about the use and enjoyment of the land by themselves and others;

(ii) the right to live on the land;

(iii) the right to access, move about and use the land;

(iv) the right to hunt and gather on the land;

(v) the right to engage in spiritual and cultural activities on the land;

(vi) the right to access, use and take any of the resources of the land (including ochre) and to manufacture any object or thing from these resources and control the access of others to the land and its water and resources;

(vii) the right to refuse, regulate and control the use and enjoyment of others of the land and its resources;

(viii) the right to care for, maintain and protect the land, including its places of spiritual or cultural significance;

(ix) the right to access and use the water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.

(2) In relation to:

(a) waters, shoals and reefs seaward of the high water mark not beyond 3 nautical miles; and

(b) land in the intertidal zone;

the native title rights and interests claimed are:

(i) the right to access, move about in and on and use and enjoy the sea;

(ii) the right to hunt and gather in and on the sea, including for dugong and turtle;

(iii) the right to access, use and take any of the resources of the sea (including the water of the intertidal zone) and to manufacture any object or thing from those resources;

(iv) the right to care for, maintain and protect the sea, including its places of spiritual or cultural significant.

(3) In relation to Alarm Shoal the native title rights and interests claimed are:

(i) the right to access, move about in and on and use and enjoy the area for spiritual purposes;

(ii) the right to care for, maintain and protect the areas as a place of spiritual significance.

(4) In relation to that part of Brue Reef not beyond the twelve nautical mile limit (as specified in Schedule B) the native title rights and interests claimed are:

(i) the right to access, move about in and on and use and enjoy the area for cultural purposes;

(ii) the right to access, use and take any of the resources of the area and to manufacture any object or thing from these resource;

(iii) the right to care for, maintain and protect the areas as a place of cultural significance;

(iv) a right of seaward access by the most convenient route beginning in the vicinity of One Arm Point taking into account the natural direction and the extent of the currents in the sea.

Subject to the following:

(i) To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.

(ii) To the extent that the native title rights and interests claimed may relate to waters in an offshore place, those rights and interests are not to the exclusion of other rights and interests validly created by a law of the Commonwealth or the State of Western Australia or accorded under International Law in relation to the whole or any part of the offshore place.

(iii) The applicants do not make a claim to native title rights and interests which confer possession, occupation, use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in s23F of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision as mentioned in section 232E in relation to the act.

(iv) Paragraph (iii) above is subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which have been provided during the hearing.

(v) The applicants exclude from the claim any areas excluded in the original application and the application as previously amended.’

Bardi Jawi No 2 – Brue Reef - The claimant group, the area under claim and the native title rights and interests claimed

45 The Bardi Jawi No 2 application, W6001 of 2004, defined the relevant native title claim group as ‘the Bardi and Jawi People who hold in common the body of laws and customs concerning the land, reefs, sea bed and seas in the claim area’. Those people were defined as the descendants of some 40 named apical ancestors including the three Mayala/Jawi people whom it was sought to include in the No 1 application. They also covered persons adopted in accordance with Bardi and Jawi tradition and custom.

46 The area covered by the second application was described thus:

‘The external boundary of the claim is that part of Brue Reef that is within the twelve nautical mile limit and within the Mayala native title determination application WAG6255 of 1998 and not within the Bardi and Jawi native title determination application WAG49 of 1998.’

Geospatial references were said to be under preparation by the Tribunal and were to be supplied.

47 The native title rights and interests claimed are shortly expressed as the rights to:

(i) access, move about in and on and use and enjoy Brue Reef;

(ii) access, use and take any of the resources of Brue Reef and to manufacture any object or thing from those resources;

(iii) care for, maintain and protect the cultural significance of Brue Reef; and

(iv) a right of seaward access by the most convenient route beginning in the vicinity of One Arm Point taking into account the natural direction and the extent of the currents in the sea.

Subject to:

(i) to the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants;

(ii) to the extent that the native title rights and interests claimed relate to waters in an offshore place, those rights and interests are not claimed to the exclusion of other rights and interests validly created by a law of the Commonwealth or the State of Western Australia or accorded under international law in relation to the whole or any part of the offshore place.

Evidence of Aboriginal witnesses

48 A number of Aboriginal witnesses gave evidence at the trial before Beaumont J and at the second trial. Their testimony about their traditional laws and customs and their rights and responsibilities with respect to land and waters, deriving from them, is of the highest importance. All else is second order evidence. It is necessary therefore to review the evidence of the Aboriginal witnesses in some detail.

49 Statements of the substance of the evidence to be given by each of these witnesses were filed in Court in advance of the first trial. For the most part their evidence was led orally without the statements themselves being received. As Beaumont J observed on day six of the first trial, in discussion with counsel for the applicants, ‘... the purpose of the substance is to give the other side notice of what the evidence is’. Counsel agreed. At the second trial, statements of the substance of the evidence of thirteen witnesses were provided exhibited to an affidavit of a solicitor from the Kimberly Land Council, Ms Guest. The evidence of these witnesses was given on the basis that certain parts of their statements could be read into the record as evidence-in-chief adopted by them with oral evidence being read in the usual way for those parts in respect of which one or more of the respondents so required.

50 In reviewing the evidence of the Aboriginal witnesses it is convenient to follow the sequence in which they were called at the first trial. The evidence given by each of them at the second trial will be reviewed in that sequence.

51 A number of the witnesses are now deceased and are referred to by designations proposed by the Kimberley Land Council. The designations use each deceased person’s surname or the surname with their first initial. Khaki Stumpagee’s deceased wife is referred to as ‘Khaki’s wife’.

(i) Frank Davey

52 Frank Davey was born on 27 November 1949 on Sunday Island. He is a Bardi man. He gave evidence on days 4, 7, 12 and 21 of the first trial. His bush name is ‘Dibi’. It was a name given to him by his grandfather. He attended school on Sunday Island from age 5 to 11 or 12. He went through first stage initiation on Sunday Island, then went to High school at Derby for 2 years where he lived at an Aboriginal hostel. At the end of his first year he went through second stage initiation at Balgan in Cygnet Bay. After finishing school he returned to Cygnet Bay in 1965 or 1966 because there were ‘Bardi people living on Cygnet Bay’. By that time there was nobody on Sunday Island. The mission had closed down. He remained at Cygnet Bay for a time then returned to Derby where he lived for the next ten years.

53 In or about 1975 Mr Davey went to One Arm Point where an Aboriginal community was being established. He lived there for a couple of years then returned to Derby where he had a better chance of obtaining employment. He was newly married and had a child. He worked for the Kimberley Land Council for two years in the early 1980s as a field officer. Later he was employed by the Seaman Inquiry into Aboriginal land rights in Western Australia. In 1984 he felt he needed further education and went to Adelaide University. He stayed in Adelaide for two years and returned in 1986.

54 Mr Davey identified a location known as Gambarnan or Gambarnanbur as ‘the Daveys’ outstation’. The term ‘outstation’ refers to a location at which some form of built shelter is established to which people of the area go and stay from time to time. From about 1975 he went to Gambarnan every year even before it was established as an outstation. He and his family stayed on the beach nearby at a place called Gumbirriny.

55 Mr Davey identified photographs on a file of numbered photographs (Exhibit N). Photograph D15, taken about 3 years earlier, showed him with some old iron totems, for use in ilma which had been left at Sunday Island. Ilma is a generic term for a ceremonial dance, song or corroborree. Photograph D19 showed Mr Davey’s brother Mr D Davey (now deceased) holding painted ilma totems. They represented small waves that splash on the shore on a sandbar known as ‘alalgurda’. The photograph had been taken some years before. Photograph D17 showed Jason Angus and Russell Davey, also known as Wassi, using a plant root, ‘ilngamu’ to drug fish in the waters off Sunday Island. Jason and Angus were demonstrating the use of the plant in fishing. Mr Davey said:

‘What they do is keeping the fish- when tide’s going out, and everybody stands around a pool or a rock and they splash around and just keep the fish in there till the tide goes out.’

Photographs D49 to D58 inclusive (X-O) showed various aspects of initiation ceremonies involving, inter alia, the use of red ochre, pearl shell and boomerangs. There was a photograph of Mr Davey’s grandson with his first turtle catch. In Bardi culture children are taken by a father, uncle or grandfather and shown how to catch turtle on the reefs.

56 On day 4 of the trial Mr Davey explained to the Court a video film of an initiation ceremony recorded at One Arm Point in 1998 or 1999. (X- C) Asked whether it was a Jawi or a Bardi ceremony he said:

‘It’s a Bardi Jawi ceremony. It’s belong to both.’ (sic)

Boomerangs held by some participants had stripes painted on them. He said:

‘That’s – that’s how the Bardi and Jawi always painted their boomerangs. It’s been handed down again.’

57 Mr Davey described the initiation process shown as comprising three parts. A more elaborate exposition was given later in his evidence. The first part ‘before the boy becomes a man’ is ‘Anggwuuy’. The second or middle portion of the ceremony, not shown, is the initiation itself. The third part is the welcome back home of the initiate by the people after he has become a man. Before the initiation proper the boy to be initiated, or novice, is prepared. He is painted with black charcoal and oil. He is ‘lanyarr’ at this stage. The initiation itself being ‘sacred to just the men’ could not be shown on the video. After the initiation ‘the young man is painted with a red paint. It is like giving a 21 year old a key’.

58 The video showed old men and lanyarr dancing before other members of the group. Women welcomed the dancing men. Paul Sampi, one of the elders, was instructing the men. The pre-initiation ceremony was celebratory in nature:

‘People are sort of celebrating that these boys are going through initiation to become men so they just dancing and making these boys feel good inside, happy.’

The women were also shown dancing. Khaki Stumpagee was sitting and acting as the ‘main singer’. The novices were under the general supervision of older males who stood in the relationship of ‘jawul’ to the boys. This is a relationship like that of godfather and godson.

59 Novices may go through different stages of initiation ceremonial over a period of some years. The boy’s madja or godfather decides whether he ‘is ready to change’. The second stage of initiation is ‘jamanunggurr’. Upon its completion the lanyarr becomes ‘gambil’. His arms are painted. Later a feather is put on his head. His status becomes ‘rungurr’ and when given a carved pearl shell to wear he is designated ‘bungas’. The Bardi word for the carved pearl shell is ‘riji’. The next step is to apply the red ochre paint ‘bidimarr’. At this stage the initiate has acquired the right to marry. He is Ilburr. The tradition of painting the boys had been passed on from generation to generation. Of the antiquity of the ceremonial dance, Mr Davey said:

‘This is before my time, before I was even born this been happening, this type of dance ceremony. This was actually given to us by spiritual beings that were before us, given this law.’(sic)

60 The participants in the ceremonies shown on the video included Khaki Stumpagee and F Bin Sali. Mr Stumpagee is a Jawi man and F Bin Sali a Bardi man (now deceased). Patsy Ah Choo was ‘the boss woman’. She is a Bardi woman born on Sunday Island and one of Frank Davey’s cousins. Most of the men bore white markings applied by the use of a white ochre called ‘maangga’. It came from Gambarnan buru, a ‘buru’ or estate belonging to the Davey family in a regional aggregate of burus known as Ardiolon.

61 The boys wear shells known as ‘barrgay’. They are collected from sandbars at Juwun, in the Gambarnan area at One Arm Point. They were used in the initiation ceremonies when Mr Davey was a boy. He could not say where the red ochre came from. If anyone needed to get some red ochre ‘... they usually ask around the community where we’s got it and its shared around’.

62 Boomerangs and shields used for the boys are made by their ‘jawul’ and belong to them for the rest of their lives. The shields are made from cork trees and the boomerangs from ‘a special boomerang tree’ described by Mr Davey as ‘a pretty hard wattle sort of’ growing around the One Arm Point area. Mr Davey also pointed to a video of Charlie Coomerang making a hair belt from human hair. He had only ever seen such belts made in the same traditional way.

63 A later part of the ceremonies which took place three weeks after the first part was also shown. Initiates were welcomed home. The welcome took place at a ‘sacred area’ at Jologo Beach at One Arm Point. This part of the ceremony is called ‘Nguril’. The boys were shown seated in a clan or estate order depending upon where the person for whom they were jawul came from. The order of seating identified by Mr Davey was Baniol through to Adiol then to Gularrgon or Barinybarr. The Bardi people of the island, Inalabulu, were represented in the middle and the Olonggon people from Pender Bay. The Iwanyi or Sunday Island people between Adiol and Gularrgon were also there.

64 On days 12 (18 June 2001) and 21 (29 June 2001) of the first trial, Mr Davey gave evidence at various sites in the claim area. Most of the sites were assigned numbers for the purpose of these proceedings. The first site was ‘Inginyngur’. It is on the eastern side of the Dampier Peninsula inland from Malumbo Anchorage. Its name is descriptive of its very thick scrub. It is part of the Gambarnan buru of which the Davey family are the traditional owners. ‘[I]n the early days’ its thick scrub provided a shelter from south easterly winds and a hiding place from mounted police. The Borrgorron buru was south of Gambarnan. It belonged to the Wiggan family. North of Inginyngur was all Gambarnan buru. A tree at the site provided red berries known by the Bardi name Junguny. Some were bitter, others sweet. There are different tastes from different trees. Sometimes they can be soaked and put in hot sand or eaten raw.

65 Counsel for the Commonwealth asked when people used to camp in the area. Mr Davey couldn’t recall what year because Aboriginal people never put anything like that in writing. It wasn’t in his lifetime, it was even before his father’s time.

66 The next site was Julunan (No 31) to the north west of Inginyngur. It is also part of the Gambarnan buru. It is close to the boundary of the Adiol regional aggregate of burus. The Gambarnan location (as distinct from the buru of that name) lies to its south. Lirrimarr, another buru in the Gularrgon regional aggregate, lies north east.

67 There are the ruins of an outstation west of Julunan. It had been ‘given’ to a family called ‘Sesar’ by the Davey family sometime in the late 1980s. The Sesars who had wanted an outstation in the area had been told by the elders at One Arm Point to see the Daveys because they were the ‘owners of that country’. Mr Davey said:

‘So they came to see us and then our older brother that passed away actually okayed this bit of area.’

The Sesars stayed at the outstation for a year. They were in and out of Broome while trying to set up buildings there but eventually pulled out and had not been back for 4 or 5 years. It was no longer theirs as they had not done any work on it. The Sesar family are Island or Jawi people. They had to be instructed about the country. Mr Davey said:

‘Before they even built an outstation here, they have to go round – we have to show them all this area here, what they can do and what they cannot do, or any trees or whatever.’

68 Mr Davey was asked whether he could give the country to the Sesar family consistently with Bardi tradition. He said that if they were to come and ask the Daveys would say yes or no, it was really up to them. They respected the elderly Sesar people. One of them, a man called Jacob, had grown up with Mr Davey’s father. They had known him for a long time. Mr Davey’s father had grown up on Sunday Island. They knew the Sesar family pretty well. He said:

‘Its not that we give land to any Aboriginal people that come from anywhere. Its just the people that we know are the people that grew up with us, the Bardi and Jawi people.’

It remains Davey country: ‘Its still our country but its the block of land that’s there, they just live on it’.

69 The area around Julunan was burnt off. At that time of year the Aborigines would start to burn off tall grass. They would allow a couple of months after the wet and after south easterly winds started blowing so that the grass would dry off. They would burn off to let new shoots come on. The Davey family would have to be asked before anyone could burn off in the area. He was referred to other country which they had driven through which had been burnt off and asked whose responsibility it would be to burn off those areas. Mr Davey said it would be the Lirrimarr people on one side of the road and the Bulgin or Gularrgon people on the other.

70 From Julunan the boundary of the regional aggregate Adiol goes east to the sea. The Lirrimarr area or Barinybarr country lies to the north. Asked whether Gambarnan went west from the location, he said:

‘No, it doesn’t. Just go south of here and east.’

It went south as far as a marsh area.

71 The next location was Gumbirriny (site 34) on the coast at Cygnet Bay. Mr Davey gave his evidence standing on the beach. The location was important to his family. It is their country. It is the main area which his family used to visit and where they set up camp. During their school holidays they used to live on Sunday Island. He remembered when they came over to Gumbirriny with his mother and father and grandfather. He called his ‘grandfather’ by the name ‘Panj’. When he was a young boy he used to go around with him. His grandfather used to tell him stories about the country and about the Adiol people. Mr Davey knew him as his grandfather when his real grandfather died.

72 There was a bloodwood tree nearby. It is known as Ngangurr or Gurdka. The Daveys would not allow anyone to cut it because it is located at his grandfather’s camp. The tree is to be allowed to rot away itself. Nobody could cut bloodwoods in that country. He emphasised the importance of the bloodwood tree in his cross-examination. It was very old and very special. Other bloodwoods were important but he couldn’t talk about it because it was men’s business.

73 He talked about the beach. It was important. Before he was born, he was a raya that floated into the beach on a raft. His father had dreamt about him on the raft. The raft was a galwa made of a special mangrove timber. His sister had been a raya on the same raft. He was asked about the sand on the beach and how he would feel if somebody wanted to mine it for mineral sands. He said:

‘We wouldn’t allow it because this place is special to us.’

The Daveys always go to that place. They sit along the beach and drop a line in. They usually come every weekend. They are still trying to set up an outstation so they can keep an eye on the place. They look for wild honey. The flowers on the wattle tell them when it is time to start looking. They had another outstation east/south east of Gunbirriny.

74 There is another outstation called Injidon behind Parson Rocks to the north-west which was used by the McCarthy family. The Daveys had allowed them to put a shed up just for the weekend. However the McCarthys went ahead and put up an outstation and more buildings. The Daveys are still talking to them about it. They are not to extend any more houses because the country still belongs to the Daveys.

75 In cross-examination by the State, Mr Davey said that the people of the Adiol regional aggregate or clan are largely of the Davey family. There is another group but only one member of that group remains. The effect of his evidence was that there was only one person left in the Adiol clan apart from members of the Davey family. The Adiol region includes the Gambarnan buru. There used to be other places like that they had just come from and the Juwun marsh. These were all ‘Baaliburu’ for people along those areas. Baaliburu however refers to a camp. In re-examination Mr Davey identified Gunun as another location within Adiol.

76 The outstation site called Gambarnan (site 37) is part of the buru of the same name covering the area including sites already visited, namely Gumbirriny, Juwun and Juwarnan. Gambarnan has a couple of partially constructed buildings. The Daveys started building there in 1994. White ants attacked their structure so they gradually dismantled it and started putting up another building. They had ceased construction because of the wet season. Before those buildings there were only camp sites in the area. Mr Davey had been coming to the area since he was about 5 years old. Now he and others come nearly every day after work at One Arm Point and visit and sit around. The next buru to the south is Adiolon. Adiol and Adiolon are two different words. The clan name is Adiol, the location of the buru of Adiolon is at One Arm Point. There are houses there. Gambarnan buru is part of Adiol or Adiola.

77 Mr Davey next gave evidence at Ngarranggu (site 38). It is a source of fresh water. Mr Davey pointed to a rock and a hole beneath it where water could be got using bailer shells. He said:

‘This waterhole was found in a Dream by our ancestors, by our father’s father or maybe our great grandfather dreamt about this water.’

There is still water under the rock. Ngarranggu means ‘crab’. ‘Ngarrung’ is a crab burrow. Mud crabs live in holes and mud. Mr Davey pointed out a fish trap which was underwater and a tall mangrove on which people would stand at full tide and spear fish. The Bardi word for fish trap is ‘mayurr’. Gandarrgun is the name of the tree that they stand on. Jolor is the name of the mangrove.

78 Mr Davey identified more red berry Jungun trees. These were of the same kind as at Injinyngur. At another place nearby the Daveys used to come and sharpen their spears before going to spear fish off the mangrove. There are markings on the rock where their spears were sharpened.

79 Mr Davey then gave evidence at Gunundu (site 35) on the coast at a promontory between Curlew Bay and Malumbo Anchorage. Immediately to the north is the Gunundu fish trap or mayurr which was ‘built years ago by our ancestors’. The mayurr traps fish so that people can collect them at low tide. North-west of the fish trap is a sandbar called Balmal which is a source of shells for use in ceremonies including Anggwuy, Ululung and some ilma ceremonies. Shells from the sandbar and a shell necklace were tendered in evidence (X-Q). The sandbar is part of the buru and goes right up to the mouth of the Juwan Creek. A darker area of water to the north-east beyond the sandbar is a reef called Burruny. The reef belongs to the Davey family and is part of the Gambarnan buru. The Daveys could collect big corals or ‘illori’ from the reef. These were the Daveys’ barnman. This is a term for ‘something that we own and something that is part of us spiritually’. If the reef or the corals on it were to be damaged someone in the family would probably get sick. In cross-examination by the State Mr Davey said that in spring low tide leaves the reefs exposed right up to the channel. He accepted that the edge of the channel is the edge of the buru.

80 Asked how far offshore Gambarnan buru went, Mr Davey pointed north-east and said:

‘It goes way out to – you can see those islands where – they just this side of the island where there’s the blue area is. That’s how far it goes.’

There is a deep channel passage passing through One Arm Point named Iwalajalajala. This probably refers to Pearl Passage between One Arm Point and the Waterlow Islands. From where he was standing Mr Davey was able to identify a place called Lirrimarr (site 30) across the other side of Curlew Bay on Easton Point. He pointed to another channel called Albay. It is not clear whether that was a reference to the Pearl Passage or the Pancake Passage which runs roughly north east from Pearl Passage. Mr Davey has a dog Albay named after the channel. There is a site in the channel called Nimanungu which is a shark breeding ground. But his people do not fish for sharks:

‘... we don’t bother the sharks and the sharks don’t bother us, so we just leave them alone.’

Years ago before he was born, sharks were used to carry turtles back to land. The people used to swim out to sharks in the area when they swam out for the turtle catch during the turtle mating season which was called ‘marry turtle time’.

81 Mr Davey described a kind of fresh water stream that runs underground out to sea. Fresh water can be obtained from a soak in the intertidal zone. The Bardi word for this kind of water source is ‘umban’. He said:

‘Umban is where you get water where the tide comes over the land and there’s water and you dig for the – after the tide goes out, there’s water on the beach and you dig for that water. And that water flows from here, it connects to – under Jolongong beach right out to where that place called Gurrmgygalal straight out’

The location of this particular umban is namedGurrmgygalal and could be found at Injololon. The people used to get water there. The first water well was dug there before they settled on One Arm Point. This resource was part of the Daveys’ barnman as well.

82 The next site Birrngaliny (No 36) is located between Malumbo Anchorage and Curlew Bay. Mr Davey gave evidence there in company with his brother, D Davey Senior. He told the Court that white ochre could be obtained from under the sand at that place. He called it ‘managua’. Only the Davey family was entitled to ‘break it off’. If anyone outside the family were to take some ochre then ‘we get sick’. The ochre is used as a body paint mainly for ceremonial and related dancing purposes. D Davey Senior explained that the term ‘gamelid’ referred to those who were entitled to get the ochre although they could give it to other people:

‘Well gamelid is like us, all the Davey’s gamelid. Gargayin, we say Gargajin, is like you guys. You different people from different country.’

If an outsider were to take the ochre then raya or spirit children would visit his family with sickness. They would similarly afflict the interloper.

83 D Davey Senior also spoke of a category of person called ‘Jidar’. They are ‘like strangers come to the land’. But anything they look for will be ‘under cover for them because they Jidar or bad luck’. I take this to mean the country would conceal its riches from such strangers.

84 D Davey Senior explained the role of ingarda. Ingarda is a kind of spiritual being. The ingarda give the people ‘song in a dream’. They would come only if there were a problem. He named one, ‘Ngugaragarala’. Frank Davey named another, ‘Baygurrburu’. D Davey Senior said there were only two for the area:

‘... we recognise them as our grandfathers because they was – they from here that we call them like great great grandfather. They been here for centuries.’

D Davey Senior said ingarda were not human beings. They only made themselves visible to members of the family. They would appear to a selected family member in a dream to pass on a song.

85 The next site was Barrilang. It did not have a number. It was quite close to Birrngaliny. There is a creek of the same name south-east of it. Frank Davey explained that the area is used for dances. He recalled their last family gathering there when D Davey Senior’s son and his son and members of the family were dancing – a kind of dancing called ‘girrij’. A screen of tree branches is made. The men sit behind it. Other members of the family begin singing and the men behind the girrij come out dancing. The dance is done at night with a big fire. The last time they did the dance was two years earlier when boys came to the site to rehearse for National Aboriginal Islander Day Observance Committee week celebrations in Broome. Frank referred again to the ingarda who would bring, in a dream, songs and dances to be used at an Ilma. He also said that D Davey Senior’s dog Barrilang was named after the location.

86 The next location, still within Garnbarnan buru, was Nyinin which had no number. It is close to the coast at Malumbo Anchorage. It is south of the cluster of locations on the promontory there. Frank Davey described it as a law ground. There is a creek to the south. His eldest brother went through the law, that is, he underwent traditional initiation ceremonies, in the area. Mr Davey’s brother died in 2000. Before he died he wanted to establish a family graveyard or cemetery at Nyinin and wanted to be buried near his law ground. He and other family members are buried there. The oldest of the graves dates back to 1991. There are sea shells on top of the graves to recognise the peoples’ connection to the sea.

87 The next site was Lalanan further south-east and also on the Malumbo Anchorage (site 46). Here Mr Davey identified a line of rocks extending 300 metres out from some mangroves. The rocks, called ‘ilbi’, describe the boundary between the Gambarnanbur and Marraljin burus. The Marraljin buru belongs to the Williams family. Its senior member was Ann Williams (now deceased) who lived in Djarindjin. Mr Davey identified another mayurr fish trap in the vicinity made out of rocks arranged in a curving line. He described how the fish trap operates. It is still used. He said:

‘... a lot of people come here and most every day when the tide is out. The first – kids usually come here every morning or in the afternoon.’

A number of locations were visible from where he stood. These were Jalan to the east-north-east, a little of Sunday Island, Jayirri, Ungalgun (in a north-north-easterly direction) and Balral away out further to the north.

88 Mr Davey was asked in cross-examination by the State about the Marraljinanbur buru which he confirmed belongs to the Williams’ family. The eldest member Anna had a sister and children. The children took their entitlement to the buru through their mother. This was because there was no-one else to take it. Families in the area had helped construct the fish traps. Anna would not ask anything from those families when they wanted to take fish. Other people would ask permission of Anna and bring some fish to give to her from their catch.

89 On the evening of day 21, 29 June 2001, an ilma was performed for the Court at Jologo Beach. Frank Davey described it to the Court as a public corroborree created by his uncle, Billy Ah Choo deceased. The ilma was revealed to Uncle Billy in a dream by his uncle, the Bardi leader Little Wiggan. It was about Little Wiggan’s life, travels, exploits, death and activities after death.

90 There was no substantive challenge to the bulk of Mr Davey’s evidence. He was a witness of the truth as he knew it. I accept his account of the beliefs, traditions and customs and traditional laws of the people. In reviewing his evidence I have viewed the video (X-C) and photographs taken at the various sites about which he gave evidence and which were incorporated in the Court’s Hearing Diary prepared by the Court’s Remote Hearings Co-ordinator. The photographs in the Diary are not themselves in evidence but, pursuant to Order 4(c) of the orders made on 26 June 2003, I have regard to them to better understand the evidence that was given.

(ii) Aubrey Tigan

91 The next witness called was Aubrey Tigan. He describes himself as connected with both Bardi and Jawi people. He described his main country as around Mermaid Island, Long Island and Jalan. Although he commenced his evidence on day 4 with explanations of other videos which were taken into evidence, it is convenient to begin with the evidence he gave on day 7 of the first trial (15 May 2001).

92 Aubrey Tigan was born on Sunday Island to a Jawi father on 31 March 1945. His bush name is Galiwar. He knew his father only by the name Tigan. His paternal grandfather, like him, was called Galiwar. His father was Jawi. His father’s country was Jalawun which is ‘from Mayala way’. His mother was Minin, also known as Katie. Her father was Sidney Wiggan. He was a Jawi from Ulal, also known as High Island.

93 As a boy Aubrey Tigan lived on Sunday Island where he attended the UAM Mission School from about age 10. He stayed at school until he was about 13 or 14 years of age. His parents lived at the mission known as Ilon. When on holidays he used to visit his father’s country. His father took him there in a dugout canoe known as a barrawar. The barrawar was made from the cork tree (‘jalgirr’) or the paperbark tree (‘gamburr’). He commented that at that time ‘... there was more barrawarr than you can think of this time now’.

94 After leaving school Mr Tigan worked at the Mission for 6 months collecting trochus shells for 3 pounds a day. He then went to Derby where he worked in a cool drink factory for 6 months. From Derby he went to Broome and worked as a deckhand on a pearling lugger for a year. He then returned to Sunday Island. At that time the old lugger ‘Tinban’ was stuck in the mud. This was presumably the lugger on which he had his employment. He remembered the Sunday Island Mission closing down. He went there and saw the old people. They were ‘stranded there’. The children went to Derby for education. He stayed at Sunday Island for a couple of months. The old people were subsequently relocated to Lombadina.

95 Mr Tigan made mention of Dean Brown’s pearling operation which was 5 kilometres south of One Arm Point. The area has the Bardi name ‘Bulgin’. He worked at Cygnet Bay for Dean Brown for a time. He was married at Cygnet Bay at age 24. His wife Rosa is still living. Her traditional country is Garrambany which is inland of Catamaran Bay. There is also a location by that name (No 73). It is in Bardi country. Rosa Tigan takes her country from her grandparents. Her father was Martin Dougal. Mr Tigan would not name his wife’s mother. It is traditional law that he cannot mention his mother-in-law’s name. Nor can he speak to his mother-in-law. The Bardi word for mother-in-law is ‘Alur’. At the time of giving his evidence, Mr Tigan was living at One Arm Point where he has lived since the Aboriginal community was established there in 1973. He was involved in building work with the local people there.

96 He visited his father’s country while he was living at One Arm Point. It was around Mermaid Island although he was normally Yalumbur. It was to the east of Sunday Island close to the Mayala country. Mr Tigan had a motor boat and he would go there with his wife and children. He also visited his wife’s country. He had gurriniriny rights there which came to him through her. He could live there at any time. He could go fishing or gathering bush tucker if his wife accompanied him. His rights allow him to go on his wife’s country not as owner but as part of the family. His mother’s country, Ulal or High Island, is Jawi country. It is Mayala country, meaning Spinifex. He is able to go to that country and has rights in it.

97 Mr Tigan identified a number of islands in the vicinity of his mother’s country, High Island and his father’s country, Mermaid Island, as Jawi Islands. These were Long Island, Pascoe Island, Margaret Island, Sunday Island, Roe Island, West Roe Island, West Sunday Island, East Sunday Island, Poolngin Island and Ralral. Jalan (Tallon Island) and Jayirri (Jackson Island) are all Bardi. There is nobody left on Jalan. He did not want to comment on Bardi matters. The right people to talk for those islands were Bardi people. He was only speaking on behalf of the Jawi. Sunday Island is Jawi country together with Bulnginy and Ralral. Jimmy Ejai who had given evidence earlier could speak for Jalan and Jayirri. Nobody else could.

98 It was put to Mr Tigan that Jalan Island was Jawi once but had become Bardi because all the Jawi people had left. He said:

‘Well in those days they used to communicate .... more than what we can think of. ... All the tribes used to meet up together for ceremony-wise and marriage-wise, and etc you know.’

He was also asked whether any of the old people had said when he was a small boy that Jalan Island was Jawi. He replied ‘That’s all I know’. By that response he adhered to his previous answer about inter-communication. When pressed on the point, he said:

‘Well they used to talk about it, like what I said. They used to communicate more, with the Bardi as well, you know? It was all – then – intermarried then.’

He conceded that although Sunday Island was definitely Jawi it was not so clear whether Jalan Island was Bardi or Jawi.

99 Mr Tigan spoke of ‘lu’ or ocean currents, generally of a tidal nature. The Milamil lu runs between Jalan and Jayirri Islands. The Gardadin lu runs in the vicinity of Jalan, Bulnginy and Ralral. Iwanyunu lu goes around the ‘other side of Sunday Island’. It is necessary to pick the appropriate starting point and time or ‘numurr’ when using a current to cross to an island. Mr Tigan described it thus:

‘Whenever we went across a – cross over to another island, there’s a starting point. You cross with the numurr. It bit like driving the tide, then you see a red light, then green, then you drive. You get a lot of traffic. If you don’t go by numurr, you’re lost, in those days, and then you just scull and row with catamaran and barrawarr. It’s the starting point, numurr.’

100 Barnman are the animals or trees that protect a family. Mr Tigan said:

‘If there’s a tree standing there and someone cuts the tree and knock it down, somebody from that area like nimalj probably get sick.’

Barnman belong to families. The Tigan family has a barnman. Its barnman is gulil. That is the turtle. He said:

‘Well every family has barnman. Will go around with barnman and if you destroy something like what I said earlier, that can destroy the family as well.’

Other evidence indicated that barnman may also be inanimate such as a fresh water soak in the case of Mercia Angus.

101 ‘Raya’ are invisible little people whose spirits can be felt. Mr Tigan was a raya before he was born. Asked how he came to be born he said his father had seen a turtle passing by, speared the turtle and it was him. Describing the birth of his own children he said:

‘Yes, well, maybe you dream about a little raya or someone dream about the raya or even your close brother or cousin, they normally pass the raya on to you. If he’s single and you’re a married man, well, the raya automatically go to looking for mother. Them go – them find a mother, then that’s where the raya is.’

102 ‘Nimalj’ are the benefits conferred by jawul on their madja (godparents) such as the right to particular cuts of a dugong. They recognise the relationship between the jawul and madja and the benefit to the tribe that comes about from that relationship. Mr Tigan said:

‘Nimalj is – when you’re a little baby born, someone teach you as a godson. As you grow up, they gradually look after you, they’re responsible for you, and when you grow up, you look after them back again by spearing a turtle, then they get nimalj. Then I get jambal for nimalj. And if you get a dugong, they might get nilaranj, the best parts. They make the choice, not the mother and father. It’s the godparents who make that. That’s where the nimalj is and we carry that nimalj very strongly through the tribe.’

103 There are taboos about particular foods under Bardi and Jawi tradition. They relate to food which is a ‘barnman’ for a particular family. The Red Emperor fish is the subject of a more general restriction. There is a curse on the fish such that any young person who eats it will have prematurely grey hair. Red Emperor can be eaten by old people. The curse was imposed by an entity called Galalung at Julum on Middle Island. The story of Galalung and the Red Emperor prohibition was told by Jimmy Ejai in his evidence.

104 ‘Lululu’ is the life saving shark. When Mr Tigan was about 10 years of age he and his Uncle Albert and his eldest cousin went out to sea in a canoe which capsized. There was a strong westerly wind. They were trying to get back to shore but the current was rough. His uncle told him to swim in front and not look back. However he looked back and saw a big shark or lululu coming. But his uncle said, ‘Oh that’s my barnman. That came from my country’. Lululu also carried turtles up for consumption by the people.

105 Mr Tigan told a story about Brue Reef and an entity called Jul. In order to properly understand his evidence of this story I have had regard to par 14 of his substance of evidence even though that was not tendered. Jul lived at Brue Reef. He was the father of the Mungjanggid. They used to eat humans like cannibals. A man and his family drifted from Jalan Island onto Brue Reef. Julmust have been a Jarlgangur man because he knew that the man and his family were coming. When they arrived at Brue Reef he hid them under a ‘mili’. He then diverted the attention of his cannibalistic sons by pretending to be unwell and requiring them to go out on successive days to collect food. Eventually he put the man and his family into a catamaran canoe and sent them back to Jalan with the tide. Before doing so he performed a dance for them. The catamaran was referred to in Mr Tigan’s evidence as an ‘inbargunu’. The people returned to Jalan were Jawi people or ‘probably’ were Jawi people. They ‘probably must have come up for a day and may be a week to visit someone ...’. There was, he said, a bit of confusion here. He seemed to suggest a blending of Bardi and Jawi communities through intermarriage. This is borne out by other evidence referred to below about communication and intermarriage. Other witnesses who also told the story of Jul at Brue Reef were Jimmy Ejai and Khaki Stumpagee.

106 Mr Tigan said it had been his family’s hobby to fish at Sunday Island. The children would go out fishing with the elders who taught them the way to live according to their custom. They would use a fishing line or a spear or catch fish trapped in a stone fish trap or ayan. Its operation, which depends upon tidal movements, is as described by Frank Davey. He spoke also of nocturnal fishing which is called ‘unduk’. When there is a new moon and the tide is out it is possible to go into the Spinifex or get a paperbark, wind it up, light it up and walk around with the light. Fish swimming near the light are blinded and it is easy to collect them. The fish can also be caught by using ilnganu to drug them.

107 Mr Tigan spoke about marriage laws. He could not marry just anybody, only his ‘right skin’. He described categories of persons described as ‘jandu’ and ‘inara’. Brothers and sisters are jandu. A cousin, a grandmother’s sister or a grandfather’s brother or sister are jandu. Inara includes mother and aunt. Under Bardi and Jawi law it is not possible to marry brothers or sisters. Bardi and Jawi have the same marriage law.

108 Mayala people are a particular subgroup of the Jawi people. It is like saying a person from the Gold Coast is also a Queenslander. The Jawi people are Island people. It was put to him that there are other people on the mainland on the other side of King Sound also called Mayala. He said those people were ‘Mayala and Uggarang’. He accepted that what he was saying was that Mayala just means Jawi and nobody else. Mayala people are Jawi people. He said:

‘Well that’s what I said. You get someone from – Queenslander and he said he was from Queensland, but he is from Gold Coast. So I’m from WA. I’m from here. I’m not from Perth. So it’s – it’s the same as that.’

109 There are no people living on Caffarelli Island. Jawi people used to live there. Mostly Mayala people looked after the area. He would call the people who used to live on Caffarelli, Mayala people. He reiterated however that they were all Jawi.

110 Counsel for the Commonwealth put to Mr Tigan the following question:

‘In the rules that you live by, your traditional rules, is there any difference that you know of between the Bardi rules, laws and Jawi laws, or are they all exactly the same?’

He responded ‘All exactly the same’. He was asked whether as a young fellow he had ever been told by old people that Jawi law is a little bit different from Bardi law. He said:

‘No, not really. The most law was the same, like being – in the marriage then, they follow the same system as well. Put two together.’

111 In answer to questions from counsel for the WAFIC, Mr Tigan referred to Uggarang people and Umide people who live on the coast on the other side of King Sound. These people use the barrawar canoe. That comes mainly from the eastern side. They use the canoes around the waters of the islands. So too do the Mayala people. Asked whether there were other people who used those waters as well, he said it was mostly Mayala and the others. There was exchange between Uggarang and other people on the mainland. Things exchanged included canoes, boomerangs and spears.

112 On day 4 of the hearing a video of an initiation ceremony at Djarindjin (X-D) was shown. Mr Tigan described the language of the singing in the first part of the ceremony as Bardi. He was asked whether there are any separate Jawi songs. He said:

‘No. They all in one with Bardi.’

He had learnt about the ceremony on Sunday Island. He was taught about it by his ‘old people’. His jawul was a person called Wiggan. The ceremony he went through was held on Sunday Island, around Cocky’s camp. That place is also known as Nilgun.

113 One part of the film showed young initiates being welcomed. They were seated in a particular order. There was a place for Mayala in that order and a Mayala boy in the ceremony being filmed. The placement of the Mayala and the Jawi was the same. The Sunday Island people are Iwanyi people and take their place in the line-up accordingly. Iwanyi is the name of that island. Next in line is reserved for Inalabulu people from Jayirri (Jackson Island). Adiol follows next and then Gularrgon which covers the Sampis and most of the Ah Choos and a Mr Chaquebar. Gularrgon is on the north west side of the coast. He said in cross-examination that the seating order is a matter of customary law, albeit it identifies people by their origins. It may be noted from other evidence that the seating order reflects the country of the boys’ madjas or the godfathers to whom they are jawul. The songs at the ceremony were being sung in the Bardi language. There are no separate Jawi songs although there used to be in the old days.

114 The second video (X-E) showed a dugong being cut up by one of the Davey boys. He had first seen a dugong cut in that way by his ‘old grandparents’. They had taught him how to do it. There is a special process. Certain parts have to be given to the madja’s family. The dugong is always cut in the same way. The people can catch dugong whenever they want to get meat for the community. Maybe there are 10 dugongs a year caught by the whole community. The last time he caught one was two years previously. He named the various parts. The tripe – ngunbunbu is also known as niynjun. The head, back of the neck and upper body is designated bula. The lungs are called alarn. The heart is lian and the liver is gawir. A part next to the tail is called irrir. The tail is called jandal. Mr Tigan named other parts of the dugong by their Bardi names including nililjun, a piece of meat from the side of the head, nimala, the flipper and uludayny from the side of the flipper. Video footage of the hunting of the dugong showed hunting with a spear or harpoon called a jarrar. In the old days dugong had been hunted just with wooden spears and not harpoons. Asked if people went out into shallow water to chase dugong in, Mr Tigan said they were just hunted from a catamaran.

115 Mr Tigan was asked about the island of Julum and whether it belonged to any buru. He said it is normally connected to One Arm Point.

116 The third video Mr Tigan was shown had been produced by a film maker, Malcolm Douglas. It was called ‘Follow the Sun’. Some of the activities shown on the video included the collection of mud crab by people recognised by Mr Tigan as a Mr Thomas and his wife. They were doing their collection in and around Jayirri (Jackson Island). Somebody was shown lighting a bushfire to clear up old grass and help new grass to come back. This is something Mr Tigan has done himself. He identified a floating mangrove known as galwa used for making rafts. A barb made out of a wattle tree was shown being used in the construction of a galwa. It is called mundu which is a Bardi and Jawi word. He remembered 30 years earlier having been on a raft of the kind shown in the video and using it to hunt turtle and fish around Jackson Island with one of the Davey boys, Joseph. The video showed a turtle being cooked with hot stones placed inside it. Mr Tigan had done that himself a month previously.

117 Mr Tigan also gave evidence relating to the gunarn or ceremonial pearl shell, the design on the pearl shell called riji, the use of ilngamu to drug fish and the use of the bailer shell called guwir. A blue ringed octopus was shown in the video. Its Bardi name is mirinyjan. They do not eat that because it is poisonous. The part of the film upon which he had commented became Exhibit F.

118 In cross-examination by the Commonwealth there was discussion about the construction of the galwa or raft shown in the Douglas video. The piece of hardwood that kept the poles together was the barb. There was word for it – mundu which was both Bardi and Jawi. Asked how he knew the word was part of the Jawi language, Mr Tigan said:

‘Well, normally Jawi and Bardi used to meet together and normally just the one – maybe you just have a piece of Bardi you say, “give me this” or “I’ll make this”, you know.’

He does not speak Jawi. There are only a few of them and they normally speak Bardi. Whatever had been the position in the old days, nowadays Bardi and Jawi used the same words. The galwa shown on the video was the last galwa that had been made by people in the Bardi community in the 1970s. There had been another one made but it had been sent to a museum.

119 In further cross-examination he described the extent of Mayala country and accepted that it went ‘over to the mainland on the other side of the Sound’. Mayala and Jawi are connected very closely. They are really close relations. He did not think there were any Mayala people who would not say that they were Jawi. They normally say that they are Jawi.

120 Mr Tigan then gave evidence on day 10 of the first trial (18 May 2001) on a boat between Belayn Island, otherwise known as West Roe Island and Gandalayn Island. He identified a number of the islands and passages including Iwanyi (Sunday Island), Garrar (Mermaid Island), Munugurr (One Tree Island), High Island and Murnba. He identified the Laynji Passage, otherwise known as Jaybimilj. He pointed to the Meda Passage between two nearby islands which bore the Iwanyunu Lu. He characterised the Sunday Strait, known as Jindirribalgun, as a very rough place with rough current.

121 Mr Tigan gave evidence at the new trial on 30 June 2003 (day 31). He began by referring to the Bardi Jawi country as he called it shown on the map Exhibit AAI. The law for that country is anggwuy and ululung law. The law covering the middle area is Irrganj. The law is for Bardi and Jawi people. It says that only Bardi and Jawi people can speak for that country. If a person from another group such as a Nyangumarta person wanted to come into that country to go hunting or fishing or collecting bush tucker, such a person would have to get permission. The granting of permission is the function of the madjamadjin or boss man. If a person such as a Nyangumarta person came on to Bardi Jawi country without permission they would ‘... get into big strife’. If a person refused to leave after being directed to by a madjamadjin that person would be punished by ‘black fella law’. Similarly, Mr Tigan would not be able to go to Nyangumarta country without permission.

122 Mr Tigan explained the idea of the buru. ‘Buru’, he said, ‘is your home’. He is connected with his wife’s country which is Barlanganan buru. The word ‘gurrurriny’, mentioned above, names the spousal connection to land or rights transferred through marriage which relate to the country of the spouse. On his wife’s country he has the right to hunt, fish, cut boomerang and make spears. If other Bardi Jawi people want to go hunting or fishing there the law says they should first come and ask her permission. His wife would have the right to tell prospective visitors to leave.

123 In the middle of the peninsula is the area called Nimidiman. It is shown on the map Exhibit AAJ in light colouring. Bardi and Jawi people can enter the Nimidiman without asking one another permission. However only Bardi and Jawi people may enter there as of right. If a man from another group wants to go into that area he has to ask permission of the Bardi Jawi bosses, the madjamadjin. A failure to comply with the directions of the madjamadjin to leave would expose the trespasser to traditional punishment with a spear or boomerang.

124 Bardi and Jawi people fish in their sea country. Mr Tigan had seen Bardi people using the galwa or bielbiel. He had seen the late Mr Paddy with a bielbiel on the mainland at Djarindjin and had seen him use it. When he was a small boy his grandfather and other old people told him that the Baniol mob had bielbiel. The Baniol people come from the eastern side of the Dampier Land Peninsula. The wood for the bielbiel (as for galwa) is a floating mangrove wood. It used to be obtained from Maljin otherwise known as Disaster Bay. The word ‘barrawar’ refers to the dugout canoe. He had seen people using the barrawar. He referred to an Adiol man called ‘Punch’. Punch had his own barrawar at Sunday Island. So too did a man called Gingygul who was a gumbali or namesake of Mr Tigan’s from Gularrgon country. Mr Tigan had used a barrawar for fishing, for catching turtle and stingray and for hunting dugong. Some barrawar had been made at Sunday Island. Some were acquired by trading.

125 Mr Tigan spoke again of the order of seating at initiation ceremonies in accordance with the country of the person to whom the boy was a jawul. That is the boys are seated in accordance with the buru of their ‘godfathers’. He explained further the jawul relationship:

‘Jawul is more – you know to look after that boy the same as your own son, or more than your own son .... And then respect. Then when all the fellas what sitting here, the Bardi people, are giving the jawul – that’s bind the community together, Bardi and Jawi together.’

The jawul relationship binds the Bardi and Jawi community together:

‘... because you do some – from Gularrgon come into Baniol side, from Baniol go to Inalabul side, and that’s where the communication come in more strong in Bardi and Jawi ... That’s why we are one ... Because of the Law.’

The seating order comes from the law. Mr Tigan has about four jawul. When they go through the law and the ceremony line rirral they sit with him at the top in the Mayala position. Women can be jawul for boys and girls. If a woman is jawul for a boy her brother or husband puts that boy through the law. If a person is jawul to a girl he or she has responsibility for her like a godparent. The jawul asks who she is going to marry to see if that is right.

126 Mr Tigan added that all law bosses have responsibility to make sure the law grounds on their country are looked after, not interfered with and don’t have children playing on them.

127 Mr Tigan was taken through a number of paragraphs of the statement of the substance of his evidence dated 31 March 2003. These recounted a trip by motor vehicle in which he was accompanied, inter alia, by Ms Guest and Mr Wurm of the Kimberley Land Council and others and identified locations in the Barlanganan buru, the Garrambany buru and the Nimidiman area. The locations were marked on a map (Exhibit AAJ). The evidence he gave indicated a close knowledge of the country. It may be summarised as follows from his descriptions:

Location 1 – a point near the border of Nimidiman country and Barlanganan buru, directly north of Garrambany buru. He knew the location was near the boundary because Ngorrmid Marsh is close by and that Marsh is part of the Barlanganan buru.

Location 2 – a point on the Garrambany buru access road. It is about 1 kilometre from the Garrambany outstation and is approximately at the boundary between Garrambany buru and the Nimidiman. This is a boundary area. He was taught about it by his wife’s grandfather Mr Dougal, with whom he used to walk around that part of the country.

Location 3 – a point on the Nyilil Access Road North. North and north west of Location 3 is all Nimidiman country where the vegetation is all wanggay. When he was working at Cygnet Bay he would come down by boat to this area to visit old Rosalyn Coomerang and her son Lockie who were living there. He would camp there for 1 or 2 days and walk around with Mrs Coomerang who would teach him about the country.

Locations 4 and 5 - these 2 locations are close to each other on the Cape Leveque Road. To the west is Gulamanon where Patrick Sampi lives. To the east is the beginning of the Nimidiman country. The locations mark two different tracks crossing the Nimidiman country to the east coast. One track leads to the Ilum Marsh which is on the east coast. The Ilum track is marked by a large white gum tree near the site of the Cape Leveque Road. When the tide is out it is possible to walk along the Ilum Track straight over the intertidal zone to Cygnet Bay where Mr Tigan used to work. The second path leads to Ngarrmmid. This track was used to go to Cygnet Bay when the tide was full.

Location 7- this location is on the access road between Gulgaaman and the One Arm Point Road. It is approximately on the boundary between Gularrgon and the Nimidiman country. Mr Tigan used to visit this area often with his gaarra, his maternal uncle, the late Mr Paddy. Mr Paddy was a very senior Bardwi madja. He would go there to cut down irrigul trees to make boomerangs and jalgirr trees for making marga or ceremonial objects. Mr Paddy told him that this place was part of Nimidiman country.

Location 22- this location is on the Garramal/Deep Water Point Road. It is near the boundary between Garramal and Nimidiman country. Mr Tigan judged this by the change in trees. They had travelled from the east coast along the road and had passed galarriny or snake wood trees which are coastal. At Location 22 the country began to change to manawun and waanga wire trees. This signalled the beginning of the Nimidiman.

128 Mr Tigan was cross-examined about the Aboriginal group to which he belonged. He said he was Jawi. He said most of the Jawi speakers were gone. One of them who was not present was very sick. Reminded that he had previously told the Court that he was Mayala he said ‘well a part of me is Jawi as well’. Mayala people are Jawi people and that they have the same law as Bardi and other Jawi people. They have the same songs and dances. He denied that there used to be separate Jawi songs or separate Jawi words for the songs. He was pressed with the proposition that there were some songs in the old days sung in Jawi. He said:

‘Well, not much of the song what was sung, only my father took, when he being died he took them away.’

He said:

‘I haven’t got them songs now, I’m sorry.’

He confirmed that he did not have the Jawi songs now.

129 Mayala country is ‘Mermaid Island and Jalan country, Cone Bay’. His buru is outside the claim area. It is a Jawi buru named Yalwun.

130 Although he had previously said he could not speak for the Bardi people that was in relation to Jayirri. Asked whether he was now speaking for Bardi as well he said:

‘No I’m speaking for Bardi and Jawis – what my thing was, you probably wanted me to say these are Jawi Islands including Bardi; that was my thing so that’s why I said I don’t recall on it.’

He was unable to point to any example of a person from any other Aboriginal group seeking permission to come onto Bardi and Jawi country nor had anyone ever asked him to come to Nimidiman country. He confirmed that there is a madjamadja for every buru. Bardi Jawi ceremony men are madjamadja for all of Bardi Jawi country.

(iii) Jimmy Ejai

131 Jimmy Ejai was born on 14 June 1932 on Sunday Island. His bush name is Muju. He gave brief evidence on day four about some portions of a video shown to the Court but not tendered. One section showed the anggwuy stage of an initiation ceremony. The other showed the use of a firestick, called an ina, to light a fire.

132 Mr Ejai gave his first substantive evidence on day 7. His memory had been affected by a stroke. He said he forgot things. He is Bardi on his father’s side and Jawi on his mother’s. His father was Ijay. His father’s father was Mandirr from Jayirri. He died before Mr Ejai grew up. So was his great-grandfather. Jayirri was the family island. It is a Bardi Island. His mother was Jinmanjunu. Her father was Galiwar from the Cone Bay area. He did not know the name of her father’s wife but she also came from Cone Bay. There is no real difference between mainland Bardi and island Bardi. The word ‘Inalabulu’ applied to Bardi, means ‘from island’.

133 Mr Ejai grew up on Iwanyi (Sunday Island) with his parents. He remembered going out on the mission boat collecting trochus shell and sea slugs. The trochus was given to the mission after each trip. His parents were paid in rations and clothes for their work. He often went to Jayun as a small boy travelling by galwa and barrawar. He was shown a piece of mangrove wood which he identified as being of the kind used to make galwa (X-K).

134 During the war Mr Ejai’s father took him to Derby where he remained until the end of the war. They took a boat back to Malumbo after the war and stayed at Lombadina. When the missionary returned to Iwanyi (Sunday Island), he and his family returned there also. Asked if he remained at Iwanyi until the mission closed, he said that it didn’t really close but only the old people remained. He subsequently went to Derby and then to Djarindjin and worked there. He did not remember how many years he was in Derby. He went back and forward between Derby and One Arm Point. There was no work at One Arm Point only old people. Every time he came back to One Arm Point there were no young people there, only older people. He said:

‘So we used to come back and visit them and give them something, bring something for them.’

He obtained employment on a boat fishing between the islands in King Sound. He used to come up to One Arm Point on and off. When he came to visit Jayirri he would go fishing. There were shelters or baali in which to stay there. People had made lots of baali. He worked for the Main Roads Department for 8 months on the construction of a road from Wyndham to Kununurra. He did not remember what year he finished that job. After it ended he went to Derby and then came back to live at One Arm Point. He had 3 wives. His first wife, a Bardi woman, had died. He married again and had 9 children by his second wife who came from Halls Creek. His current wife is his third. They have no children. She is a Bardi woman.

135 Mr Ejai explained the word ‘lu’ for ‘current’ in terms of the movement of the sea. He told the story about Brue Reef and the people from Jalan who drifted there and were protected by Julu (earlier referred to as Jul) from the cannibalistic Munjanggid people. The story was substantially the same as that told by Aubrey Tigan. The word ‘Munjanggid’ means ‘greedy’ or ‘whatever you’ve got they want it too’. On Mr Ejai’s account the Munjanggid people were not related to Jul or Julu. They were just there. The men who were rescued were Bardi. He did not know whether Julu was Bardi or Jawi. He had been to Brue Reef lots of times. In cross-examination by the Commonwealth he agreed that the men from Jalan who went to Brue Reef were caught in a lu. He also agreed that, according to the story, Brue Reef was an island at the time of the men’s rescue by Julu. Later, when Julu and the Munjanggid fought, the island sank. His evidence suggested that pandanus trees on Caffarelli Island represented some of the people of Brue Reef.

136 Mr Ejai explained the spirit beings ‘raya’ thus:

‘Raya, it’s Aborigine way of someone who’s there. You can feel it. It’s there when you walk around. When you go in your country, you can feel that it’s watching you, someone watching you, or bit of a noise, and when you walk around, it’s not there. It’s not there. When you hear noise, when you look, it’s not there, whatever. That’s the raya we say – we believe in that....’

137 Mr Ejai was shown a drawing of a turtle and gave the Bardi names for the different parts. The head is bula. The neck is buda. The two flippers are jambal. Ranman is the tail. The female turtle has got ranman. There is a special way to cut up a turtle according to Bardi custom. The turtle is cut through the neck and all the internal organs (‘guts’) taken out. The turtle is cleaned up and hot stones can be put inside and then the arms and the guts go back under the hot stone. The turtle diagram was received in evidence (X-11).

138 On day 8 Mr Ejai gave evidence on Julum (Middle Island) which he also described as his grandfather’s and father’s country. He was standing not far from the Ardiolon lu. There are old stone fish traps or ayan running off the shore. There were photographs of the Ardiolon lu and the fish traps in the Court Hearing Diary for day eight. He and his father used to get fish from them as did the other men. They used to go there when ‘half water was still there’. I interpret this to mean that they arrived while the tide was still going out. They would stand around up to their necks hitting the water to scare the fish going past. The fish would ‘run for cover’ but the men made the ayan into a sort of cave with stone. They would throw stones into the water to stop the fish leaving the ayan. They would stand there till the water ‘dried out’, ie until low tide and then collect the fish. Then they would collect the fish. He was taught to do this when he was a little boy. His father, family and other people took him there. Later in his evidence, Mr Ejai mentioned the use of the plant ilgamu to drug fish.

139 Mr Ejai pointed out a camping place under a tree on the island that they used when his father and other family members went there to fish. He told a story about Julum Island and the Red Emperor taboo. Galalung was the entity who forbade the people, other than old people, to eat Red Emperor. But the people at Julum wouldn’t listen. So he came down from Bulnginy, from Gawinungunu walked in the sea accompanied by fire. The people who had eaten the Red Emperor became hot. They ran into the water to cool down but it didn’t help. They came out of the water and tried to hide behind rocks and trees but to no avail. Galalung punished them. They were burned because they had eaten the forbidden fish. ‘Then he went back and go up again’. Mr Ejai pointed towards Bulnginy which he said is a hill or rock which climbs up into the clouds. Bulnginy is near Iwanyi (Sunday Island). He pointed to a fossilised footprint regarded as the footprint of Galalung. The law which Galalung made about the Red Emperor still binds his people today. People who visit Julum have to respect it. Galalung came from Iwanyi, a Jawi place but he came to a Bardi place. The language for the island is Bardi ‘but maybe Jawi too because he was there’.

140 Later on day 8, Mr Ejai gave evidence from the Court’s boat identifying Milimili Rock and a lu of that name. He had travelled across that current to Jalan and to Iwanyi. He pointed to Jalan from the boat. Before setting out to Julum it was necessary to wait until the tide turned. He had travelled in a dugout canoe and a catamaran or galwa. The last time he travelled on a galwa was in the 1940s or 1950s. He identified a beach to the west of the boat on the north side of Jayirri called Idulgun (site 21). The Ejais and the Lennards all used to live there together. It was a family beach. Other people used to live there with him when he was about 10 years old. His daughter’s grave is on the island about 3 kilometres inland. There is a law ground in the hills on Jayirri. There is a rock called Munggor which sits in the middle of the island.

141 Mr Ejai identified some rocks on the horizon called Jamungunulu. These are part of Anchor Shoal (X-J).

142 Earlier, when the boat was moving, Mr Ejai had identified an island called Biyana, part of the Waterlow Islands (X-J) to the south west of Jayirri (Jackson Island). There is a current between Biyana and Jayirri known as Biyananji. He also identified Ilngudou part of the Waterlow Islands and some rocks in the sea to the north of it called Narda.

143 Bulngurr (site 20) is on Jayirri. Mr Ejai told a story about an entity at that place called Jungalbil. Jungalbil lived there with his two wives. People used to see smoke from a fire at his humpy. But when they approached he would hide his firewood sticks and put out the fire. One day two giido, humans who later became birds known as Redbills, decided to hide nearby while Jungalbil went fishing so they could steal his firewood sticks. Jungalbil and his wives went fishing. The Redbills hid nearby. When Jungalbil came back from fishing he retrieved the firewood sticks and lit his fire. The Redbills were watching him through the grass. When the fire was lit they rushed up, grabbed the sticks and ran away. They turned into Redbill birds. Jungalbil turned into a falcon and gave chase. The Bardi word for falcon is ‘Jungalbil’. He chased the Redbills but he couldn’t catch them because Redbills are faster than falcons. So he came back and landed at the location to which Mr Ejai had pointed. Arrnganynamban is the place where Jungalbil’s second wife/bird can be seen, one rock sitting on another. Photographs taken on the boat at the time of this evidence show Biyana Island looking west. The other of Jungalbil’s wives is a large rock on that island. Jarroran Beach is in the foreground. There is an old shelter on the beach nearby. The rock which is Jungalbil is pictured on Jayirri at the site known as Bulngurr.

144 At Jalan Mr Ejai gave more evidence on the boat. He affirmed that Iwanyi (Sunday Island) is a Jawi island. Looking at Jalan Island which, he said is Bardi, he said there was a man’s grave in the rocks on a small beach on the island. Aboriginal people used to put dead persons inside caves or jirarr. They used to build stones and a hole and put them inside. The man entombed there was Jalanbur. When he died there were no men left whose fathers’ country was that island. Asked if anybody belonged to the island Mr Ejai said:

‘Well, my father used to be with two Jalanbur all the time. They were close cousins. They used to live in Jayirri and here together, but we got some people, here, related to them, I mean family. I saw them when this Land Council and Government came along, you know, talk about land, talk about country. They said, “No, don’t ask us, we not land people. It’s up to you,” they said. Well my father is cousin belong to Jalanbur.’

It was put to Mr Ejai in cross-examination by the Commonwealth that Jalan Island was a Jawi island from the old times. Mr Ejai had not heard that. Bardi went as far as Jalan because his father’s cousin, Harry, is Bardi and that is his country and they come together all the time in those island.

145 Mr Ejai pointed to Iwanyi and the islands of Bulginy (Poolngin Island) and Ralral (Salural Island) all of which he described as Jawi. The current called Lirruljun passes between them. A current called Gardadin passes on ‘the other side of Jalan’. There is fresh water on Jalan Island coming out of the sand from an ‘ulan umban’. ‘Ulan’ is water and ‘umban’ are Bardi words for water and ‘from the ground’.

146 Mr Ejai said that if a ship wanted to sail past Jayirri it could. If wanted to anchor next to Jayirri it could subject to informing him:

‘They can anchor and come and see, like me.’

Recreational fishers on the reef off Jayirri would not have to see Mr Ejai ‘... but if it’s business fishing, they really come and see us, you know’. Asked why, Mr Ejai said:

‘Because I’m of Jayirri. That’s my country, in Aborigine way we used to respect people, owner of that country in Aborigine side.’

Mr Ejai looks after Jalan Island. All the old people who were there before were gone. The island could belong to his children after him. He did not know however whether they would get to it.

147 Mr Ejai next gave evidence on day nineteen, which was 27 June 2001. The Court was sitting at Juljinabur, otherwise known as Brue Reef. Mr Ejai said of Brue Reef ‘that’s for everybody’ Bardi and Jawi. They are the ‘real people’ for it.

148 Mr Ejai again told the story of Jul and the munjanggid. There were some additional details. The men rescued by Jul had chased a turtle in the water at Jalan Island and had been carried away by the tide to Brue Reef. Stones on the reef indicated the munjanggid area. After Jul had saved the men by pushing them to Jalan in an inbargunu or catamaran, the munjanggid began fighting with Jul’s family. The Jul family swan to Chaffered Island. Mr Ejai pointed to a number of pandanus trees there and said ‘that’s them’. Both Bardi and Jawi people used to live on Chaffered Island. There was a mix of people there. He did not know of people from Chaffered Island using the reef. Bardi people knew the story of Jul and the manjanggid before the Jawi people. It was ‘long, long time ago’.

149 He also told the story of a man called Olorrgi who saw people fighting and went into the water at Swan Point and turned the seawater salt saying the words ‘gaaranju’ four times.

150 Mr Ejai was asked about very deep water called ‘jarrayn-jarrayn’. This is ‘outside in the sea’. Asked if it belonged to any people he said ‘... only jarrayn when it come married turtle time, we go out with the tide and come in with the tide. When we do that, we watching out for married turtle. That’s all.’ Asked who the ‘we’ was meant to be, he said:

‘All the Bardi mob, Jawi mob.’

151 Later that day Mr Ejai identified Juwarnan and Murrudulun, otherwise known as Twin Islands. Jawi people from Iwanyi go there for yams and bird eggs such as Garril, Nurdunju and Gul-gul. Jawi people used to go there because ‘you just go around straight down here with the tide and go back with the tide ... to Sunday Island.’ The older people who used to go there have died. There is still Mr Ejai himself and Khaki Stumpagee. Mr Ejai had been there many times. It was put to him that this is Jawi country. However he said:

‘No. But we together, Jawi and Bardi, and we go together in islands. We allow to go in each other’s island. And my mother is Jawi.’

152 The boat moved to another location identified as Maybinjun, a submerged sandbar. Mr Ejai’s cousin from Iwanyi was named after the sandbar because her raya came from there.

153 Mr Ejai pointed to Belayn Island and Garndalayn Island and a rock between them called Unburrgunbardi. He also pointed to a sandbar called Kumuriyngan. Jawi people are connected to Kumuriyngan. Belayn is a Jawi island and so is Maybinjun. In the old days people travelled there using galwa. He pointed to another island called Ulala (High Island) that belongs to Albert Lennard who was present on the boat.

154 He again referred to the concept of numurru. This term refers to the changing tides which at the change may take a person in one direction and then later bring them back. It seems to denote locations or times at which a person can take advantage of the turn of the tide. Ilarr is a numurru. Jingaljirrijirri is the name of botha numurru and a lu. He also identified a lu called Jurndanggun which is also a nurmurru. There is another lu called Gurirr, near Iwanyi. The lus had Jawi names. Some of them are in the Mayala area and there are Mayala names. It was put to him that it is a Mayala area and that some names he had been saying were Mayala. However he said that they were Jawi people.

155 Mr Ejai gave evidence at the second trial. Some was repetitious of that which had previously been given. He was directed initially to a map, (X-AAI), showing the islands and the Peninsula. He was asked whose country was shown. He said ‘that’s One Arm Point area. Bardi Jawi Area.’ The same was true of the islands. The sources of his information were, ‘Our old people ... and our own leaders’. The leaders are the older men or boss men. The law for all the Bardi and Jawi country is ‘ululung’. He also referred to the word ‘anggwuy’ in this context. The law says that only Bardi and Jawi can live in Bardi and Jawi country.

156 If anyone wants to go onto the Bardi and Jawi country to go fishing, hunting or camping or to get bush tucker they should first see the madjamadju, the leaders or owners of that place. If a person wanting to come upon Bardi Jawi country did not first go and see the madjamadjun the law says, ‘they’d be pushed out if they go – go where our things’. The term ‘marriuyn amboriny’ means a person from a long way. It covers members of Nyulnyul, Nyikini or some other tribe. It would also cover white men. If marriuyn amboriny did not seek the permission of the boss men to come on to the country the boss men would ‘get spear and drive them away’. If a Nyulnyul man were looking for food or water the law says ‘we should go and help him on food or water’ and then ask him to go. Mr Ejai had seen someone being speared. A man was speared ‘because he was belting his wife’.

157 The term ‘buru’ means ‘your country’. Mr Ejai’s buru is Jayirri. He is the boss for Jayirri. By the law he is required to look after it and to keep things in order. His father and grandfather were the boss men before him. If Bardi and Jawi people from another buru were to want to come to Jayirri and camp there or fish or gather some food, they would, under the law, come and see him first. If they were only go to stay for a few days or were hungry, they could stay. If they made ‘humbug’ he would chase them away.

158 Where law business is concerned ‘... then all Bardi Jawi is my country, law side. Men are responsible on law side all over. Otherwise, you are responsible for your own place. But on law side we are one’.There are law grounds in Adiolon at One Arm Point, Borrgun, Nyamagun and Jarrinyan. There are two law grounds on Jayirri and one at Pender Bay. There are other law grounds. All the older men, the madjamadjun, are responsible for looking after them. Although a particular individual might be responsible for a particular law ground if that person does the wrong thing then all the madjamadjun can intervene to ‘have meeting and help him’. All, it seems, have access to all law grounds.

159 In one part of his statement of evidence which was read into the record and affirmed without objection, Mr Ejai said:

‘Those law grounds come from our law. They are made by law. I was told that by old people. A law ground is inamunonjin. He gave us law ground, given law to look after it. It came from him. It makes us belong to the country. In other places there is nothing in the ground. But a law ground has man’s private business. On a law ground I feel happy. A wind blows through you. Everyone is smiling.’

Every law man is responsible for all law grounds and the law:

‘If there is a problem law-side, we make a meeting and all law man talk about it in the law ground. When you have fixed up the problem everybody feel happy, you can feel a wind go right through you.’

160 Speaking of the Nimidiman in the centre of the Peninsula, Mr Ejai said that Bardi Jawi fathers, mothers and children go there to get food, boomerangs, spears and sugar bags. No permission is necessary for Bardi Jawi to enter the Nimidiman because ‘that’s everyone’s place, families place, Bardi Jawi place.’ If he were inside the Nimidiman, coming close to a particular buru he would go and see the owner of that buru. For example, if close to Ngamangu he would see Mr Sampi. Members of other peoples like the Nyangumata mob do not have a right to enter the Nimidiman. They come from another country. They would be chased out if they did not agree to go. Other people who are hungry and looking for food will be given food. Then they can go. The same is true of white men.

161 Mr Ejai gave evidence about galwa and the bielbiel. Galwa is a Bardi word for light mangrove wood that floats high in the water. It is also used to describe the rafts made from that wood. Bielbiel is the Jawi word. But he said that Bardi and Jawi are one language. The differences are ‘just a little bit of pronouncing I think’. He had used a galwa for catching turtle and dugong and fish and for going from island to island in the Sunday Island area and between Twin Islands. He used the tides and the lu. He would go to the Twin Islands two or three times a year to get eggs and Aborigine potatoes and to kill turtle. He made a galwa with his uncle when he was a little boy and made his own when he grew up. Lots of Bardi people use galwas. The wood comes from the Dugong Bay area. The wood is not available on Iwanyi or One Arm Point. He also used the barrawarr or dugout canoe many times. They came from Mayala and were generally acquired by trading items such as boomerangs and shields.

162 Mr Ejai was asked about the word ‘Iwanyunu’ which describes a large area covering a number of islands. Although different families might have different areas inside Iwanyunu they were together. They were the Iwanyunu mob. Iwanyunu is a regional aggregate as are the mainland areas known as Gularrgon and Baniol. He agreed that there are ‘big areas and then there are these smaller areas inside and different families come from those areas.’

163 The pervasive presence of spirits on country was thrown up by a passage from Mr Ejai’s statement read into the record without objection and affirmed by him:

‘Whenever we are fishing, night-time, day-time – someone watching you. Spirit. If I’m not sure which way to go, I stop and think and my heart and mind will tell me which way is the safest. I’ve done that many times. That’s the spirit. Maybe our old people or inanunonjin. I used to get this feeling all the time. They’re around you all the time. Some spirits can go with you from one place to another. They can make you feel brave. Spirits are from particular parts of the country but sometimes one guides you all the way. They know all the country. When you die, your spirit goes amongst your old people, your own people.’

164 Mr Ejai was cross-examined at the second trial by the State on the question whether there is one Bardi and Jawi group united by a common law. Mr Ejai was asked whether there is an area that is Bardi people and an area for Jawi people. He said when he grew up there was Bardi and Jawi mixed all the time from when he was a little boy. Bardi and Jawi married into each other on Iwanyi all the time. That was where he had grown up. He grew up in his father’s country. His father was a Bardi man. His mother was Jawi. Iwanyi was his mother’s country. Her buru was Bilinybiliny. The burus on Sunday Island are Jawi. He takes his country from his father’s country. ‘In Bardi and Jawi side, we go on father’s side’.

(iv) Khaki Stumpagee

165 Khaki Stumpagee is a Jawi man who was born on Sunday Island in or about 1924. He was married to a Bardi woman (now deceased) whose maiden name was ‘Bin Sali’. His buru is Nilargunburu on Sunday Island. He lives at Nilagun outstation at Gurrangun on Sunday Island. He has nine children. His father was known as Gagi, also Januwanjan. His mother’s name was Polly or Ninya. His bush names are Jamaji and Nadarrbur. Mr Stumpagee’s evidence was not always easy to follow. This is no criticism of him. His English expression in areas concerning the description of traditional law and culture was not always able to convey what he wanted to say clearly and sequentially. He frankly recognised his own difficulty in this regard on more than one occasion in his evidence. Nevertheless, he was a powerful witness by virtue of his age and knowledge. I have no doubt that what he said was the truth so far as he knew it and could recall it.

166 On 16 July 1997, a video film was taken of Mr Stumpagee being interviewed on Sunday Island by Geoffrey Bagshaw, the consultant anthropologist with the Kimberley Land Council. Mr Bagshaw had known Mr Stumpagee for about three years. Because of his advanced age and ill health he regarded it as prudent to record as much information from him as he could on video. A transcript of the video was also prepared. On day 5 of the first trial the video and transcript of the interview were received as Exhibit G. Mr Stumpagee confirmed that he had undertaken the interview with Mr Bagshaw.

167 In the interview Mr Stumpagee began by talking about his birth place. He identified the place at which the interview was conducted as Gawurngun Point, otherwise Nilagun-ola. The area he was born in was part of Nilagun. On the north side of Sunday Island is another area called Bilinybiliny. On the east side is Umbinarr. The place they were sitting was Gurrgwarngun, part of Nilargun. The Nilargun area went as far as Gaygin Point. He indicated that it went inland to where they could see rocks on a hill.

168 The old mission was located at Ilon inside Nilargun. Ilon is a Jawi word. Sidney Hadley, who started the mission on Sunday Island, arrived there on a three masted schooner with a lot of sails. He did not see Hadley but thought his father must have seen him. Before Hadley came and started the mission the people who belonged in the area were all Jawi people. Explaining the relationship between Bardi and Jawi, Mr Stumpagee said:

‘Bardi is mainland, from Swan Point to One Arm Point. Now that’s the Bardi from One Arm Point up to Swan right up to Kooljaman, Cape Leveque they call it before. Right up to Pender Bay, past Lombadina, that’s a Bardi, what’s this place? Cunningham Point. They get Bardi. After from Bardi, Pender Bay side far as Pender Bay Bardi I’m sorry, Bardi’s Pender Bay, that side, Beagle Bay side, Nyulnyul. Not past Beagle Bay half way up this side, Bardi far as to Pender Bay.

169 Sunday Island is Jawi country. Ralral Island (Salural Island), Bulnginy (Poolngin Island) and Niwardinggun (Rees Island) are Jawi islands. These are all to the west of Sunday Island. People used to travel from Sunday Island using galwa. Another word for galwa is ‘bielbiel’. Galwa is a Bardi name. Bielbiel is a Jawi name. People used to go to Ralral on their galwa, leave them in a safe place and then wait until diver ducks in the area had gone to sleep. They would catch the ducks and strangle them. People could take up to eight or nine ducks this way.

170 The galwa is not a heavy raft. After a time Jawi people had to get galwa from elsewhere. I infer this is a reference to the scarcity of suitable woods on Sunday Island. People knew how to travel from Sunday Island to the mainland because they knew the lus. They would always go from Sunday Island at high water with the tide going to the Long Island side. They would follow the tide to Long Island and then to Mermaid. From Roe Island they would follow the tide but still rowing to get to the other side. His stepfather, Janguwanjun, had taught him about lu.

171 Some other islands in the area are Jawi because of the language used there. With respect to Ulala or High Island he said:

‘Well they’re been talking half of Jawi too and half, I don’t know.;

Asked whether it was still part of the Jawi area. He said:

‘Well look like it to me, Jawi side too, Long Island, Mermaid, Diji, Ulala. Well they’re been talking Jawi side too.’

He gave the same answers in cross-examination on day 21 of the trial.

172 The Bardi and Jawi languages are different, ‘but ah, like in, understand’. He understands Bardi and Jawi, ‘little bit’ If he were to talk Jawi young fellas couldn’t understand him. They only know Bardi. Asked why, he said there were no other Jawi men there. He doesn’t even talk his mother’s language, Wororra. His father’s language and that of his stepfather was Jawi. His grandfather and grandmother were all Jawi. He was different because his father got his mother from Robinson or Umbagai side of the mainland. But he was a Jawi man.

173 He was asked about the word ‘bur’. He said that buru means ‘place’. So Nilargunbur is a buru. A buru is ‘where we come from’. Bilinybiliny and Umbinarr, different areas on Sunday Island, are buru. He belonged to Nilagun bur from his father’s side. He was therefore following his father. His father’s father was Jawi also from Nilagun side. The people from Bilinybiliny and Umbinarr took from their own fathers. He is ‘gamelid’ for his island. A gamelid describes a person who belongs to a particular place.

174 Mr Stumpagee said Jawi people had one language. On Iwanyi only Jawi had been talking Jawi. Bardi came later. He said he spoke only for Iwanyi. He would not speak for Guaarngun Guwarngun. Buru also had the meaning of a big area, the whole lot of Sunday Island.

175 Asked whether he was the oldest Jawi person, Mr Stumpagee said:

‘Yeah, I’m the last man, lastest man, nobody else. Only young people, the Angus mob. But they don’t, they never went island, Sunday Island. They been in mission side, Lombardina mission all through, they been born there and they still inside. They, they told me already you are, we can talk for you uncle, they tell me, they call me uncle, Angus.’

176 The conversation returned to lu. Mr Stumpagee used to travel from Warnan to Sunday Island on galwa or bielbiel. The old people knew how to cross over to Sunday Island and the time at which to cross over having regard to the changing tides. In this context ‘numurru’ referred to the right time. It means ‘what time to go, cross over’. He also spoke of a whirlpool or ‘jididi’ which could sink even a big boat. When crossing from island to island care has to be taken because of the whirlpool.

177 Travellers between the islands could get fresh water from Unggalayan (Long Island). There is a soak or umban there called ‘Jalngarrar’. The soak is the sand and is covered at high tide. Bailer shells can be used to get the water out. People travelling in a galwa can get water from a place whether it was on Unggalayan (Long Island) or Karrar (Mermaid Island). They would fill up their bailer shell with water and go from island to island. They could keep it all the way.

178 People used to go hunting and fishing on galwa. Before Sydney Hadley arrived they knew nothing of fishing lines and hooks. They used wooden spears. They would sharpen the wood on two sides at one end and get fish that way. People would go fishing on the reefs. They would protect their feet by rubbing their soles on mundurrji, the leaves of a plant, to stop their feet getting cut on the reef. It would also protect them from getting ‘poked from that nail fish’. This was a reference to ‘stone fish’. This is Bardi law. People stung by stone fish can suffer for many hours. It might be that it could be stopped by a mabarn which is a ‘Doctor man, a magic sort of a man’. Mr Stumpagee himself was not a mabarn manbut his step-father and step-father’s brother were.

179 Mr Stumpagee talked about the use of ilngamu to drug fish. The ilngamu root is pounded with a white rock. It is poison for fish but the fish can still be cooked and eaten. He described the construction of the fish traps whose Jawi name is ayan-ayan. The basic principle of their operation relies upon fish going into the trap at high tide and being prevented from leaving at low tide.

180 Mr Stumpagee had hunted turtle and dugong. However he had used a ‘harpoon from gardiya’, a white man’s harpoon. The Jawi people had ceremonies relating to the turtle and the dugong. There was song every night during the season for married turtle. He used to listen to them when he was a boy. The season for turtle mating is in August. The ‘married turtle’ is undurd. He knew a song and sang it on the video. There is also a song for the dugong, which is known as odorr in Jawi language. In the old days, dugong had not been killed with harpoons. Men would line up in the shallow water, staying very quiet, and wait for the dugong to come. There might be seven men each side, guiding the dugong past into more shallow waters. Rocks were thrown into the water to scare the dugong back towards the men, who were ready and waiting to catch it and drown it by holding it under the water. A song is sung during the process of marking and cutting up the dugong which is done using either quartz rock or bailer shell. The song is sung to make the process easier. Asked about any Jawi songs or dances, he said Jawi people had dream Ilma on the Jawi side. Bardi also had dream Ilma.

181 Mr Stumpagee talked about the attitude of the missionaries to Aboriginal customary law. The missionaries told the people they couldn’t serve two masters, God and the other master who might be the devil. But that didn’t stop the law. The people took no notice of the missionaries:

‘They talk, well, cut out that, you can’t have two master but we can. We belong to law, we gotta keep going the law.’

182 Mr Stumpagee was referred to a sign about 400 or 500 metres away from where he was sitting during the course of the interview. The sign read, ‘Law Ground Do Not Enter’. He had put it up. There is a men’s law ground in the vicinity and also a women’s law ground. He referred to a secret ceremony, ‘ululung’. It is high peoples’ law, secret law. Speaking of the importance of the law for him, Mr Stumpagee said:

‘We can’t cut it out, we the Law side, Law is the best for us, we learn and we like it. We can’t, if we born and we have no Law well it’s different but we are Law, Law people old people and we are young people we know all that, tell how they then do the Law side anyway.’

183 Mr Stumpagee knew Brue Reef as Munjanggid Juljinabur. The second word means buru jina. Jul had seven sons. Jul was gamelid for Brue Reef. According to the story Jul had houses on the reef. Mr Stumpagee, with some variations in detail, told the story of Jul and the men who drifted onto the island and were protected by him from his sons. He was cross-examined by the Commonwealth about the Jul story. He said it was a Jawi story. He said that Brue Reef is ‘for everyone’. He did not stop anyone from going there although they would have to get permission from the right people such as fisheries. In re-examination he accepted that the owner of Brue Reef could stop people going there but ‘well we got to find the owner. Who’s the owner.’ He was not too sure.

184 He thought Sydney Hadley had started going to Brue Reef. He was asked if the people from Sunday Island found out about Brue Reef through Sidney Hadley’s visits there. His answer did not appear to relate to that question. He denied having previously told Mr Bagshaw that Juljinabur was for everyone, for gardiya, Umide, Jawi and Bardi. Only island people could get the shell (from the reef).

185 Mr Stumpagee gave further evidence on day 10 at Sunday Island at Guwarngun, near the Nilagun outstation. He mentioned various locations on the island. He spoke of Galalung as a man who wanted to get to heaven up Bulnginy hill but did not succeed. He spoke of his raya, and said that they came from Nilagun. He also mentioned a tide or current called iyuldurdin which belongs to Bundulbundul.

186 Mr Stumpagee identified a number of persons in Court as Jawi people and indicated their country including Bilinybiliny, Angari, Numunju, Lirringgi, Mermaid Island (Gararr) and Nerangabul.

187 On day 21 of the first trial (29 June 2001) Mr Stumpagee was cross-examined by the State. Iwanyi embraces the whole of Sunday Island and not just Nilagun. Nilagun is ‘when I sit. I have house there.’ It was his father and his grandfather’s country. By his law that is the right way to get country, through his father. Sunday Island is a Jawi island but different people from all over the place came there because of the gardiya (white man) at the old mission. Bardi came after. Although he had been talking in the Jawi language Mr Stumpagee said he ‘got Bardi language’.

188 Mr Stumpagee was asked about other islands in the area. Ulala is a Jawi word for High Island. The people for that island are all gone. The young people went to Mowanjum. Ulala looked like a Jawi island because ‘they been talking Jawi half to them’. Mermaid Island is known as Karrar. Long Island is Unggaliyan. Asked if that is a Jawi name Mr Stumpagee said:

‘Well, I can’t say it, but they had been talking Jawi too.’

There was nobody on Caffarelli Island, also known as Numunju.

189 It was put to Mr Stumpagee that Brue Reef was not far from Caffarelli Island. He answered:

‘... they anchor them there, they wait for weather, you know, till next morning. They go with boat.’

190 King Hall Island is known as Budij Ngaja, and Bedford Island is known as Garrandada. He said that West Roe Island (Belayn) and East Roe Island (Gandalyn) have names that ‘look like Jawi’s’, and that no one had been there lately except for his mother. Allora Island, known as Ngolorron, close to Sunday Island on the west, belongs to Jawi, as do Bulnginy and Ralral. He said that Jalan (Tallon Island) is ‘half Jawi’, that he gave it to Bardi, to the Ejai mob, saying it was like nimalj, and ‘I can’t have all the islands myself’:

‘I know it belong to them too, the Ejai mob, from that island too. Because his father been going all the time there too ... they been talking Jawi, that island. That Jalan (bumu). But they mixed up with Bardi too.’

191 Mr Stumpagee named as Mayala people Monty Wilfred, Charlie Coomerang and Adrian Isaac. Asked if they had any Mayala country, he said:

‘Well they belong to them, all them islands, anyway.’

Mayala country ‘ ... from Long Island, Mermaid, High Island’, ‘... All of them small islands, we call them Mayala whole lot, mainland had up to Cone Bay.’ Their language ‘looks like it that’s Jawi language’. He agreed that there is Mayala country on the mainland on the other side of King Sound. Sunday Island is not Mayala country.

(v) Maryanne Doyle

192 Maryanne Doyle is a Bardi woman. Her evidence was given on day 6 of the trial before Beaumont J on 14 May 2001.

193 Mrs Doyle was born in 1943 at the Lombadina Djarindjin Aboriginal Community, where she still lives. Her bush name is Maangit, which comes from her father’s uncle’s country. Her father is Benedict Dilay, and her grandfather’s name was Nubul. Their traditional country, which is also her country, was Mardnanburu. Her father’s country includes a small beach and a creek separating Garrambany from Galan or Undayi. At Undayi, there had been an outstation named ‘Undayi Dilay Aboriginal Corporation’ after her father.

194 Mrs Doyle’s mother was Lottie Williams and her country was Miligun. Mrs Doyle’s mother’s father was Martin Williams but she did not get to meet him. His country was also Miligun.

195 Mrs Doyle went to Lombadina Catholic School from age 6 to age 15 and then to his school in Derby for two years. After high school she moved back to Lombadina for a couple of years before getting married and moving to Geraldton. When she was living back at Lombadina she used to go home to her country at Mardnan. Mrs Doyle had five children, three boys and two girls and she lived in Geraldton while they were educated. She said, ‘my husband always used to send me here for, you know, funerals and things like that, and whenever we had the chance we’d take the kids back here and show them their traditional home’.

196 Mrs Doyle described her childhood visits to Mardnan and to Ngiling, which is her ‘goli’’ or paternal grandmother’s traditional country. Her goli or paternal grandmother’s name was Esther. Mrs Doyle would pick bush fruit and other food of which there were many different varieties all over the area. She learned the kinds of bush fruit to pick from her father and her grandparents.

197 Mrs Doyle spoke of her ability to move across the country covered by the claim area. She said she could not go into law grounds. If there were people at an outstation on a buru she would prefer not to go there without asking:

‘... that’s their buru sort of thing, and it’s not nice to go into someone’s area without – even though we are all related to each other, I’d prefer to ask somebody if me or my kids or my husband were going there. .... I wouldn’t just go in there, and the people won’t say anything to me for going there, but it’s, you know, just common courtesy.’

198 The carpet snake is her father’s barnman, passed on to her and her kids. If anyone were to kill a carpet snake it could affect her children very badly, especially her youngest son ‘because he lives here’. There is no other food that her traditional law forbids although she does not eat mullet. When her sister died she had a big feed of mullet and became very sick. The old people said she wasn’t allowed to eat it because it used to affect her sister in the same way. She said the only other fish that she will not eat is ‘Red Emperor which we don’t touch at all...’. Despite what she said about the absence of food taboos this abstinence this evidently flows from the traditional prohibition attributed to Galalung which Mr Ejai spoke of in his evidence.

199 During school holidays Mrs Doyle would go fishing with her aunties to Milagun. They travelled to Miligun on a ‘galwa’ made from mangrove timber. To stun the fish she used a mixture of ground up bush potato or barnjut with sand. The bush potato was rubbed on a rock to make a fine powder. Barnjut is used in rock pools on the beach in Djarindjin and at Bassum Point when the tide is out. She does not go fishing anywhere else herself. She was only talking about her own little area. Her aunty also taught her to use sea slugs to stun fish. They are cut up and mixed with sand and used in the same way as barnjut. People still use barnjut and sea slugs. She also uses the fish traps called ‘mayurr’. She has fished at night using paperbark torches known as ‘unduk’. Nowadays they use battery-operated torches. She also spoke of fishing for shellfish and oysters. For that it is necessary to wait until low tide when the reefs are clear.

200 Asked whether she knew anything about the spirit known as the ‘Jarlang’, she said ‘... my Jarlang lives in the tree and I got a big tree, that white tree that belongs to me’. She spoke of the five branches on the tree and related that to her five children. Speaking of raya, Mrs Doyle said:

‘They little people that, you know – it’s very hard to see them, you have to be a mabarn man or something to see them. But we know they’re there when we go to it, because we can feel their presence there; we can feel all the old people’s presence when they go to that special country of ours. We know that they are around us, but we can’t see them, but we can feel them.’

201 When asked about marriage rules, Mrs Doyle explained that a Bardi person can only marry his or her own jandu. They cannot marry people in the relationship of ‘’ inar or ‘inara’. She said ‘that’s the opposite to us’.

(vi) Mercia Angus

202 Mercia Angus (nee Williams) is a Bardi woman, born on 12 October 1930 near Djarindjin. Her bush name is Madarrwing. She was married to Peter Angus, a Jawi man who is now deceased. Her buru is Milagunbur in the Baniol regional aggregate. She lives at Djarindjin. Her father was Martin Williams, known as Lanangun. He belonged to the same buru. Her mother was Elizabeth. She was from Julbard as was her mother’s father, Irrigul.

203 Mercia Angus gave evidence on day 6 of the first trial at the Djarindjin school hall. Before going to school she lived in a ‘dormitory’ at a convent run by nuns at Lombadina. She used to go fishing all around Djarindjin and then over to Galan and to her country Miligun. She used to ‘go up with donkeys riding’ to Miligun. She went on foot to Galan and crossed over Galan to Nannygoat Island when going to Belayn. She used to go to Miligun with her eldest sister and her brother-in-law during school holidays. On the way they would collect bush tucker including tree roots which they dug up and cooked on coals.

204 After leaving school, Mrs Angus worked in the dormitory. She was married at Beagle Bay. Her husband was from Sunday Island. She was promised to him by his eldest brother. He took her to Sunday Island which was his traditional country. His mother came from Swan Point on the mainland. His father and his grandfather’s home was the whole of Sunday Island. Gurrnganggun, the ‘running water’, is a special place there. When the missionaries left Sunday Island Mrs Angus and her husband came back to Djarindjin. They lived on Djarindjin Hill. She had four children, two boys and two girls and one child who died. Her daughters are Bernadette Angus and Laurel Angus. There are two sons, Werner and Gerard Angus. When she visits Miligun Mrs Angus goes fishing and tries to get oysters and crabs. She has her own block at Miligun called Nyumwah, named after her grandfather.

205 Mrs Angus gave further evidence on day 13 (19 June 2001) at a gravesite at Miligunbur. A long, long time ago before she was born an old lady called Nimalod had been killed by two people at that block. Rocks mark where she was buried. The gravesite is part of Mrs Angus’ block in Miligun. Her block goes from where they were standing, to Juwan up to Miligun. She has a house on it. She referred to the Pindan country or Nimidiman between the location where she was giving evidence and Djarindjin and said it was available for anybody. There is plenty to eat in the bush. There are kangaroos. There is food in the trees. The Manawan tree is the source of ‘sugar bag’. You can eat the seeds from the tree.

206 The next place visited was Lamangun on the same day. When she was a child she and others used to run away from Lombadina mission and come up to Manynging-ngkurr or Nannygoat Island and stay there. At low tide it is possible to walk out to the island. The island and the sand beyond it belonged to her grandfather. They used to catch fish on the reef using barnjut and the mayurr. Others could fish there with permission from the family. Any stranger wanting to come and camp in the area would have to get permission from her and her family. She lived in the area in the 1980s and still camps there. The old people would walk down to the reef and fish on it. She said:

‘Yes. And when the tide was full, they used to use catamaran because turtle and fish and fishing there and come back and get turtle for us. Old people, they was doing that.’

The word for turtle is ‘gulil’. She still uses the reef:

‘Yes, we go down there for reef for oyster and everything.’

They would get oysters and clam shell and fishes at low tide, when the tide was ‘right out and dry’.

207 In cross-examination Mrs Angus named the buru at which they were located as Lamangun. She had applied for a living area there. Bayingun to the north was B Lauder’s country. To the south was Ngiling which is the Albert family’s buru. A Noongar called Danny Howard was squatting on her land at Jarrjang, a beach to the west. He had not asked. He just came and put himself there. Her sister’s grandchildren, the Bin Omars, who are part of her family, were staying with her. They have a Malay father. Their mother was Bardi. Mrs Angus’ daughter and her sister’s daughter stay with her. Her late husband’s country was Sunday Island where they had lived together. It was her children’s country. Their part was Bilinybiliny. All her children however would take her country after her. It was put to her that her country was not their father’s country. She accepted that the childrens’ country is Bilinybiliny but said, ‘But they stay here with me.’

208 Her grandfather’s land runs right up to Juwan and to Jarrjang. Miligun was one big country name for the area including Jarrjang.

209 Mrs Angus called the raya little fairies. She said ‘If you were asleep here and once you are asleep, then they will come – they will come and you’ll see all their little eyes peeping at you and pelting at you little stones and sticks.’

210 Mrs Angus gave evidence at Jarrjang. There is an umban in the sand about 20 metres from where she gave her evidence. It was important because her grandfather and ancestors lived on the land and took water from it. The soak would only be exposed at low tide. She still gets water from it. The way to get at the water is to take a small flat stone and rub the sand and then push the sand aside and rub it until the water comes out. If somebody uses a stick to try to get the water it will cause blistering on her body. The water is her barnman. She said:

‘If they cook it, then all the sea – well I’ve got the scratches and the sores, that’s the barnman for me, yes.’

211 Mrs Angus gave evidence at Mulunjun which she described as an old people’s camp. There is a rock there which no-one can sit on. It is a big flat rock. It as a kind of healing rock. When she gets sick she can sit on the side of the rock and lean and just rub it and then throw up and say ‘I’m feel sick and all that but I get up good and then I go back home’.

~~212~~ The Court and the witness had travelled to the site driving along Mulunjun Creek. Past the site in a south-westerly direction was Juwan, which is flat ground. On the other side of Juwan is the buru called Nyilil, or Nyilingbur, which is the Alberts’ block. Nyumway’s block is on Mrs Angus’ side of the creek. Mrs Angus said they were in Manynging-Ngukurr and ‘This is my country and my place’. She remembered coming there with her parents as a child. She said that Elephant Point and Nannygoat Island were part of Mangyging-Ngukurr too.

(vii) Bernadette Angus

213 Bernadette Angus was born at Beagle Bay on 27 January 1951. Her mother is Mercia Angus and her father, Peter Angus (now deceased). Her Aboriginal bush names are Ringarr, Mukuk and Lamangun. She has two daughters, Vanessa Angus, known as Jilawa and Antonia Rose Sampi known as Wobali and Bulam. Bernadette is both Bardi and Jawi. Her buru is Bilinybiliny, part of the Sunday Island or Iwanyun regional aggregate. Her late father had a special part of Sunday Island on the east side known as Gurrnganggun or ‘running water’.

214 Bernadette Angus gave her first evidence on day 6 (14 May 2001) at the Djarindjin school hall. As a young girl she had lived in Lombardina, Djarindjin where she went to school. She used to visit Iwanyi even before she started school. She would walk with her father from Djarindjin to Galan at Mardananburu. They would take a cutter to Iwanyi. This was a boat with one mast and sail. Her goli and her galu, that is her paternal grandmother and grandfather, lived on Iwanyi. She and her father used to visit them to check on them and have a couple of weeks with them. Iwanyi was her grandfather’s proper country. Her grandmother was from Swan Point or Barinybarr. Bernadette also went to Galan on the mission truck for picnics. The nuns and priests used to drive the children there for the day. She has a connection with Baniol from her grandfather’s ‘nyami’ side. As a young girl she also went to her mother’s country at Miligun. She would walk there from Djarindjin for fishing. She would look for bush food. They used to take school holidays at Miligun. She would stay overnight at little baali, ‘like little camps, you know make your own little bush camp’.

215 Bernadette used to go to Miligun all the time - ‘... all round this High Peninsula we used to go fishing and looking for bush food and all, camping everywhere round this coast, from Miligun to Lombardina Point, all round here, to Djarindjin and all.’ She has a place at Miligun. It is at Lamangun which is also her bush name. It is a three bedroom house with two sheds an ablution block, toilet, shower and generator. They have been there since 1997/1998. Before that it was just bush. They used to make baali out of bush materials when they wanted to go out there camping and fishing.

216 Bernadette finished school in or about 1966 at age 16 and then lived at Djarindjin. She has continued to live at Djarindjin from then on although she spent time with her cousin Maryanne for two years in Geraldton in 1970 and 1971. She is familiar with bush fruits and named a number of them, jungun, gabinj, gulm, gulay, mulinj, gurralgar, ngarda etc. She spoke of their preparation for eating. The fruit called gulm, for example, was heated in coals if the time is right. There are seasons for bush food. The season at the time of her evidence was winter time. All the other bush food was in the off season. The only thing they had at that time was gulm.

217 Bernadette would go line fishing in Miligun on her mother’s block and around Djarindjin. She would fish off the beaches and, when the tide went out, go round to the little island because there was a reef there. She would fish off the reef and also collect shells such as clam shells. She used the barnjut to catch fish. She described its preparation. Sea slugs could also be used. She could do that sort of fishing at Elephant Point near Nannygoat Island. Nannygoat Island could be accessed by walking across the sand at low tide.

218 Bernadette described, as Mercia Angus had done, how water could be obtained from the umban at Miligun. If a stick were used Mercia would get sick because the soak was her barnman. She was connected to that waterhole. If a stranger were to come and dig with a stick the water would not taste like fresh water. It would come out as murrgu or water which is salty water.

219 There is a tree in Miligun called dirrindirr. Its timber is ebony wood. Her parents used the wood to make jungurr, spears to catch fish. It made good little spears for fish.

220 Bernadette had been on a galwa with her parents in the 1950s. Her father took her ocean fishing. They went out Lombadina Djarindjin reef on the galwa. He used a spear and a fishing lineand caught dugong, turtle and fish. The spear he used was called a jarrar, the long spear used for hunting turtle and dugong.

221 In cross-examination by the State, Bernadette confirmed that she is Jawi. Her daughters have Jawi and Bardi bush names and she said that they are both ‘Bardi and Jawi, same with me’. Their buru is the same as Bernadette’s buru. Vanessa’s father is Yawuru from the Broome area and Antonia’s father is Badananarr, a Baniol tribe – she is ‘Jawi, Bardi and Baniol mix’. Their grandfather is from Guruma, on the mother’s side. Asked about speaking Jawi language, Bernadette said, ‘No, I didn’t – lost me, Jawi. I don’t talk, I didn’t speak Jawi, only Bardi’.

222 People other than Angus family members can go to Miligun if they asked permission first:

‘They should ask, like my mum, us mob we got a block there. Nowadays we respect one another, ask people if they – because most of the people get their outstations, even though we all countrymen and related and whatever, but we learn to respect and ask people if we can go fishing on their place, nice place, up a way. Anyone welcome to go to fishing in Miligun.’

If someone wanted permission to come to Miligun they would have to speak to her mother rather than her.

223 She explained why she is Bardi (as well as Jawi). Her mother is a Bardi and her grandmother was a Bardi from the mainland mob. She is Jawi from her father but he was from the Sunday Island Jawi mob. Khaki Stumpagee was related to her in a traditional way and she called him uncle. It was put to her that her main country came through her father so that her main country would be Iwanyi (Sunday Island). Nevertheless she classed herself both as Bardi and Jawi. Her father is Jawi and her mother is Bardi. Her father’s country is as important to her as her mother’s country.

224 Asked if there was a difference between the Bardi people’s country and the Jawi people’s country she said the Bardi people live on the mainland and Jawi people in the islands including Sunday Island. There are only a few islands other than Sunday Island where they live but she couldn’t remember their names. Jalan Island is a Jawi island. She did not know where Jayirri Island fitted in. She did not know anybody who could still speak any Jawi language. Khaki Stumpagee is a person that people looked up to for traditional information and stories.

225 Bernadette had never been to Brue Reef. Nor had she heard any story about men going out to Brue Reef. She had been taught to respect the reef because it was a man’s place. She spoke of Brue Reef as the main place where Jawi people collected trochus shell when she was a little girl. She remembers her father saying that they were going to Brue Reef to get some alngirr. All the elders from the Bardi and Jawi people could go to Brue Reef. When Khaki Stumpagee had said that anyone could go she thought he meant Bardi and Jawi, rather than the world at large. Aboriginal people from Caffarelli Island did not go to Brue Reef. She did not know any Aboriginal people other than Bardi and Jawi people who go to Brue Reef.

226 Bernadette gave further evidence on day 13 (19 June 2001) at Lamangun. She identified the bush root called Jungun. It can be eaten off the tree or roasted on coals. She identified a Gulm tree. It has a green berry called gulm. Another berry called gulnj came off a white tree.

227 Bernadette’s daughters did ‘not really’ take their country from their father. She said ‘they come on my side’and take their ningarlm country from her. That was because they were staying with her. They would be recognised as people of their father’s country but if they came on her side they would be alright. They are coastal Bardi. She takes her country now from her mother and not from her father because she stayed with her mother. Asked if that is the rule now, she said that she grew up in Lombadina Djarindjin and saw uncles and aunts go to Sunday Island. But her father is buried in her mother’s country and he was a long time with them. Her children had not been to Sunday Island. They don’t go there. Jawi country stops at Sunday Island. The different areas on the island such as Miligun and Bilinybiliny are not different peoples’ country. The whole island is one country. Her father told her about Sunday Island.

228 Bernadette gave evidence at the second trial. She said that the country shown on the map X- AAI, down to the southern boundary of the claim area, is Bardi Jawi country. It is ‘one big country’. The people are one people. Their law makes them one family. She knew this from her father, her grandfather and her parents and mother. They are still living today as one. They have the one law and share everything together and live the same lifestyle. She is not allowed to break the law. Nor are any other Bardi Jawi people allowed to break the law. She respects the law. She believes that other Bardi Jawi people respect the law. She tells the young people, her children and her nephews and nieces to respect older people and all the Bardi Jawi because they are one and also to respect the law. Like other witnesses at the second trial, she was noticeably more focussed on conveying the message of the unity of the Bardi and Jawi and their law than had been the case at the first trial.

229 Asked if she had any rights in Jawi country, she identified Bilinybiliny on Iwanyi. She also has rights in Bardi country at Miligun (site 83). Her rights in Jawi country come from her father and her paternal grandfather or galu. Her rights in the particular area of Bardi country came from her nyami, her maternal grandfather. There was nobody living at Bilinybiliny at the time she gave her evidence. She was responsible for it because it was her ‘family’s mob’. The things she can do on Bardi and Jawi country include looking for bush tucker, fishing, but not hunting only the men can go hunting. She goes out in the bush herself and gets bush fruits. These include munga, which is a bush yam.

230 Bernadette said that she has the right to give permission to other Bardi and Jawi people to come onto her buru. If anyone wants to come from Mardnan or some other buru to hunt at Miligun they have to speak to her mother first. If they say they just want to go fishing and hunting that will be all right. If people show disrespect or ‘humbug’ her mother can just tell them to go. If her mother needs help she can go to the next clan, the Baniol mob and the Bardi Jawi madjamadji. She can call on the whole of the Bardi Jawi people. If Bernadette wanted to go fishing or hunting in another buru, she would ask permission from the people of that buru. She could then fish and hunt for as long as the people were happy. There is a fish trap at Lamargan at Elephant Point. Other people are permitted to use the fish trap. They will show their catch and share it. Marriuyn amboriny, or outsiders, would need permission to come on to Bardi and Jawi country. This includes white people or gardiya. If a stranger sets up camp in the buru he or she will be told to go. In the old days if marriuyn amboriny came onto Bardi Jawi land the Bardi Jawi would fight with them.

231 The boundaries of the burus were in place a long time before Bernadette was born. They continue in place today. The Nimidiman, which she identified in X-AAJ as the area shaded in light green, is shared by all Bardi and Jawi people. Anyone from Bardi and Jawi can ‘walk happy ... what you want to do from there.’ So all Bardi and Jawi people can take bush fruits and can even spear animals in that area:

‘It’s like a free country for Bardi Jawi people and we walk happily there and we – we can just get whatever we want.’

No permission is necessary to go there unless going close to the boundaries of burus belonging to other people. Outsiders need permission from the Bardi Jawi people to enter Nimidiman. They can get this from a group on the ‘gateway’ buru like the Pender Bay mob: ‘If they don’t listen, well our elder – madjamadjin got to ... deal with them, you know’.

232 If a stranger such as a Yawuru man were seen cutting down trees in the Nimidiman she would talk to him and if he would not listen she would talk to the neighbours and the boss people. If the stranger did not leave, he would be in big trouble. The people would hunt him and fight them with sticks, boomerangs and spears:

‘We have the right to do this because we are defending our place, our country. That’s from that one law.’

No such incident has ever occurred but it is plain enough that it was offered as an example of the application of the law as Bernadette Angus propounded it.

233 Bernadette fishes off the coast with hand lines from the beach if the tide is in. When the tide is low she can go onto the reefs and collect anything that she wants. Fishing and collecting things from the sea is very important. It was done by people who lived a long time before her:

‘ ...we all live in that same lifestyle today.’

She fishes mainly at Miligun and in Djarindjin. Bardi and Jawi do not seek each other’s permission to go fishing at someone else’s buru.

234 When she was 12 or 13 Bernadette had seen her uncle, Mr Paddy (deceased) cut down mangrove wood at Baniol Point and make a gaalu (galwa). She used to go out with him and her father fishing for turtle and dugong and sometimes just for the ride. She went night fishing in the moonlight. The moonlight time is called ‘bingara’. She used to go out on the galwa even to Bilybilyjin Reef. The Baniol mob also had gaalu. Bardi Jawi people have been hunting turtle and dugong for a long time. She had been told stories by her old people about catching turtle and dugong.

235 Bernadette spoke of the role of women at the Anggwuy ceremony and the godparent-like responsibilities of the madja to jawul. The secrecy of the Ululung ceremony was recognised:

‘Our madja woman tell us what to do during Ululung. When it is finished in the morning, just get up, get our swags, and go by the same road you came. We are not to look around.’

Women are never allowed to go on a law ground. That is the law. Guardiya cannot build on a law ground.

236 Bernadette spoke of the empty burus such as Guljaman. They are part of Bardi and Jawi country. The Bardi and Jawi people speak for Guljaman. If anything is wrong, ‘you get a next door neighbour like Ngamagun, and the other side is Bulgin.’ Neighbouring burus are responsible for ensuring that the law ground in an empty buru is looked after. There is still something in the ground there even when there is no family in the buru:

‘Nature and our lawgrounds and peoples’ spirits walking, still walking in Guljaman today, each and every one of the Bardi and Jawi people.’

In cross-examination by the State Bernadette agreed that her galu’s country was Jawi and that her father was a madja. He was a Bardi Jawi madja. Her buru is Bilinybiliny and the people who speak for it are Bardi and Jawi mixed. She is Bardi through her mother and Jawi through her father and his father. The right way to get country is through the father and grandfather. People also have rights on the mother’s country:

‘In my law, right way to get my country through my father, grandfather. But if we – in our way, we haven’t – we all say that we got to go on out galu country. If we have a mother, we can get rights to have on our mother country. If they get a white man father, well they can’t own the land. They can go on their mother’s side. We say they are Bardi and Jawi descendants.’

She agreed that ‘... the really strong rights are galu’ – from the father’s father. Bernadette’s children had a Bardi father but they are Bardi and Jawi like her. They are Bardi from her because her mother is a Bardi. She does not know where their paternal grandfather’s country was or if it was Bardi.

237 Djarindjin is where she lives. She has, by her law, a right to speak for Djarindjin. But the elders, the madjamadjin, say who can come and who must go. She is a Bardi and Jawi woman. All the Bardi Jawi people are bosses of Djarindjin because they are all living there. The leaders are the madjamadjin, ‘but its a little community so we all share and live together as one’.

238 Bernadette and her mother have a right to say whether people can come to Miligun. They get that right through the law. There is no one left apart from her mother. If her mother dies it will be her responsibility as the eldest. Her brothers and sisters all share equally. Her brothers are Jawi men. Their galu countryis Bilinybiliny country in Iwanyi. She has no experience of strangers being told to leave Bardi Jawi country. Nor has she seen a Yawuru man cutting down trees in the Nimidiman. The last time she went into the Nimidiman to get bush food for her family was ‘... last year or early this year’. Iwanyi is ‘my country’ for Bernadette Angus. The whole of the Bardi Jawi is ‘our country because its from the one Law.’ She used to fish on other peoples’ burus when there were no outstations but when people ‘get their own place, we don’t go out there’. She named various outstations as follows:

1. Mardnan (the Anguses) and Jurrjang

2. Nyilin (the Alberts) on the King Sound Side

3. Chaquebors block

4. Chile Creek (Puertollanos)

5. Ngamagun (Paul Sampi)

6. Gulamanon (Patrick)

7. Garrambany (Madeleine Gregory and Coomerang)

8. Gambarnan (the Daveys)

9. Pender Bay and Judurd (Kevin George)

Bernadette had been fishing at Pender Bay when she was young but wouldn’t go there now although if she asked Kevin George he would not say no.

239 Cross-examined by counsel for the Commonwealth, Bernadette traversed her early history. It is not necessary to review that here. Her evidence substantially reflected that given at the earlier trial.

240 Bernadette had seen kangaroos in the Nimidiman country in the rainy season. They were scarce at the time of her evidence. There are also goannas and snakes. Bardi people eat snakes. However they prefer fish and goannas. She last ate goanna in 2002.

241 The old way of catching dugong in their resting pools is drowning them by blocking their noses. She never saw it done but had heard about it. She had seen turtles in pools.

242 There were no outstations on Bardi country on the mainland in 1972. From 1974-1975 and in the seventies and eighties the people were all involved in getting their blocks back. Before she went to Geraldton for a couple of years in 1970-1971 most Bardi people were at One Arm Point and Djarindjin. They took holidays on the little islands near One Arm Point and Iwanyi.

243 Bernadette remembered one occasion on which she had spoken to a gadiya fishing and exploring on the reef. She or those with her told him he should get permission in Djarindjin next time. They gave him the name of the person to contact. This was in 1984-1985.

244 Asked who had responsibility to look after Bilinybiliny she said that under the law it was her cousin’s brothers, her brothers because they are the men:

‘Under the law, to look after Bilinybiliny is on my cousin-brothers, on my brothers because they are the man and I don’t know – it’s – we all responsible for it because that’s our place and we all responsible. The main thing all the men, the boys.

...

They are all living mainland, see, we still in – grew up in Djarindjin and stayed in the mainland. They would be if they – they might be interested, but they don’t seem to be, they want to stay in one place.’

(viii) Laurel Angus

245 The eighth witness Mrs Laurel Angus commenced her evidence on day 6 (14 May 2001) of the first trial. She also gave brief evidence on day 13 (19 June 2001)

246 Laurel was born on 26 April 1965 on Iwanyi (Sunday Island) at Ilon (the mission site). Her mother is Mercia Angus or Madarrwing. Her father was Peter Angus (deceased) also known as Janggalid. Her bush name is Bijag. It comes from the sister of her grandfather (galu) who is Jawi. Her father’s country is Gurrnganggun (running water) which is in the Bilinybiliny buru. The Angus family comes from that area. Khaki Stumpagee was Laurel’s uncle through marriage. Her mother’s buru is Miligun in Baniol country. Her husband’s country is Unggaliyan (Long Island).

247 Laurel attended primary school at Djarindjin Lombadina. She went to Derby for high school. When she left school she returned to Djarindjin Lombadina where she has lived for most of her life. During school holidays her aunties would take her to Miligun. In the 1960s it was common for the old people to take the children to Miligun where they would fish, pick fruit and collect bark for medicine. When she lived with her husband they would take the old people back to Manynging, going fishing and looking at places.

248 When Laurel goes fishing at Miligun, she goes to the island (Mulumbayn) or the creeks. Fishing can be done from the reefs between Galan Island and Miligun. She often went fishing off shore on a boat with the teacher at the Lombadina school, Andrew, and his wife Wilma. He was the teacher in the early nineties. He is a Bardi from Djarindjin. She knew of the galwa as a raft made of mangrove wood. Her uncle Sandy Davey made a galwa in the 1960s in Djarindjin and as a child she would go raft fishing with him and her father.

249 Laurel spoke of her mother’s (Mercia) barnman which is the umban. If someone disturbs the water hole her mother will get sick.

250 Laurel was asked about the flowers and fruit that come out at different times of the year. She said the wattle trees would soon be in bloom. It was the end of the cold season or barrgan. She learned about bush foods and trees from the old people. She also spoke of the yam potato or barnjut used to drug fish.

251 Laurel did not know anything about Brue Reef because she was too young.

(ix) Madeleine Gregory

252 Madeleine Gregory gave evidence on day 6 (14 May 2001) and day 14 (20 June 2001)of the first trial. She was born on 4 November 1930 at Djarinjin Hill. Her father was Joseph Dougal also known as Dagul. He came from Garrambany buru. Her mother was Florrie Dougal also known as Banango. Her bush name is Gardingunjun, which comes from her father’s aunty. Her father and his father, Jurni, both had country in Garrambany. Her mother had country in Ngiling (Rumble Bay). As a child she often went with her parents to Galan and Garrambany on weekends and holidays. They would camp in a bough shed called a ‘baali’. In cross-examination Mrs Gregory said that she did not have the same mother as Victor James.

253 When Mrs Gregory was old enough she was put into the dormitory at Djarindjin. She finished school at 14 and obtained employment with the church looking after children. She went to Garrambany on the weekends. On the way she would stop and pick fruit like gabinj and gulay.

254 Mrs Gregory married in 1960 and after two years she and her husband moved to Broome and then to Wyndham. They returned to Djarindjin in the 1970s. They became bakers and lived in Djarindjin for about 20 years. They had houses built there for them. During the 20 years that she and her husband worked as bakers they would go to Garrambany. He helped with opening up a road to provide access to it. She had a shed, two solar pumps and a tank there which were put up in 1980. Then her husband became ill and she had to take him to Broome. They ended up in Broome. Before they went there they did as much as they could at Garrmabany.

255 Barnman is something that only the men have. When anyone becomes sick people ask whether somebody put some barnman into them. There was some uncertainty in her evidence at this point about whether a person has a barnman or whether the country has a barnman. She seemed to be saying in the end that ‘the country has a barnman’. It is clear from other evidence that women also claim to have barnman.

256 Mrs Gregory told a story which illustrates a connection between country and particular flora and fauna and well-being. When a woman is pregnant her husband is not supposed to use spears or tools like tomahawks because it might do damage to the unborn child. When her mother was pregnant with her eldest sister, her father was told not to go fishing, but he disregarded the warning. He went down to the beach at Garrambany and saw a huge ocean mullet. He couldn’t resist the temptation so he speared the fish ‘under the ribs’. When her eldest sister was born she had a scar on her body. Her father, by spearing the ocean mullet, was responsible for it. In effect, the injury to the mullet was reflected on the body of the unborn child. She said:

‘That’s what we believe in and we know and it’s been happening so far. So that’s why all of us, she and myself, and my brothers and their children – my brothers’ kids will carry it on and their sons will carry it on – the men.’

The mark, she said, would stay on their bodies when they are born. There is a Bardi word for the mark which is ‘bawurr’. Her family cannot eat the ocean mullet, for them it is‘amarad’. Victor James told a similar story about the spearing of a turtle during his wife’s first pregnancy (see below).

257 When Mrs Gregory was a child her father taught her to fish by breaking branches off a tree and using the branches to chase the fish into the shallows where they could be caught. He would build a rock trap and they would drive the fish into the area of the rocks before the tide went out. When the tide went out the fish would all be lying around. She explained the use of the barnjut plant. People would dig it, pick it up and keep it in a cool place. When the tide went out barnjut could be used in rock pools. Mrs Gregory identified photographs showing Bernadette Angus and herself digging ‘barnjut’ on the side of the road to Borlk. Another photograph showed her father and her brother and his two sons. One of the sons was holding a boomerang. The photograph shows the ‘bawurr’ cicatrices on her father’s chest, which he received when he became a man.

258 She was recalled to give evidence at Unday (site 77) on day 14 (20 June 2001). She identified M Coomerang (now deceased) as her sister, saying they had the same parents. She identified her country as Garrambany. It lay across a creek and a bay north of Unday.

(x) M Coomerang (deceased)

259 M Coomerang who was Madeleine Gregory’s sister gave evidence on day 6 (14 May 2001), day 14 (20 June 2001) and day 20 (28 June 2001) of the trial before Beaumont J (T360) and day 32 (1 July 2003) during the second trial.

260 M Coomerang was born on 4 March 1933. She took her bush name from her father’s mother (Polly). Her father was Joseph Dougal, known as Dagal. Her mother was Florie Dougal, known as Banango. Her buru was Garrambany in the regional aggregate Baniol. She was married to Locki Coomerang, a Jawi man who is now deceased.

261 As a child M Coomerang spent time at Djarindjin and at Garrambany. Her father travelled to Garrambany a lot for work so her parents took her with them. They would walk there. When travelling in Garrambany they stayed in ‘baali’ and lived on fish and dug water from the intertidal umban. She could not eat ocean mullet because it made her sick. She bore a mark caused by her father spearing a mullet when her mother was pregnant. She described ‘raya’ as little invisible people. There are many raya who stay in the caves in Garrambany. Sometimes at night she could see the little blue lights from the ‘raya’ who looked after her.

262 Strangers visiting Garrambany must get permission. She had seen strangers steal crabs and oysters. She told the story of Rosa Tigan’s son. He was running on the beach and was stung on the leg and couldn’t play basketball for a week. It was because she did not tell the raya who he was. Even though his mother was from Garrambany, his father was Jawi. Once the raya were told who he was, his leg improved. The raya need to be told when strangers go to Garrambany. She did not know if there was a Bardi word for stranger or what it is. A stranger was somebody she did not know. If strangers asked, she gave them permission to get gurirr and crab and fish.

263 M Coomerang had been to Ngiling (Rumble Bay) as it was her mother’s country. Ngiling belongs to the Albert family and anyone wanting to work there had to ask them. There was an outstation at Garrambany but she did not live there as she did not have a vehicle. There was no-one living there. There were people from Broome who worked at the outstation. She lived at Djarindjin.

264 Her husband died in 2000. He came from Unggaliyan (Long Island). He had never spoken to her about Brue Island or Brue Reef. She knew nothing about Brue Reef.

265 On day 14 M Coomerang and her sister Madeline Gregory gave evidence at Unday (site 77) at Catamaran Bay, west of Skeleton Point. She pointed north across the bay to her country Garrambany which is also her father’s country. Her father was born on the Bayangan beach. She went by her grandfather. Unday was not her buru. It belonged to the Galan (Mardnan) people (F and B Lauder). Garrambany was her country through her grandfather. Unday was not.

266 On day 20 M Coomerang gave evidence at Gulbun (site 125) at Deep Water Point northwest of Cunningham Point. Asked if she knew the area called Ngiling she said she knew Bandinarr (site 121) and Rambal which are part of Ngiling. She had a connection with the country because it was her mother’s country and her uncle’s country. The Albert family was connected to Ngiling through their father and grandfather. Members of the Albert family include Esther Albert, Phillip Albert, Andrew Albert, Bruce Albert, Stephen Albert, Ruthie Albert and Valerie Albert. Bandinaar is to the west on the other side of the bay and could not be seen from where she was giving her evidence.

267 M Coomerang’s evidence concluded at the Catholic Healing Centre in Broome on day 32 during the second trial. Of the differences between Bardi and Jawi she said:

‘they are the same but the language is a little bit different’.

She could understand Bardi language but not Jawi Language. The law and the ceremonies for Bardi and Jawi were the same. The Bardi Jawi can speak for the country including the islands right down to Dampier Peninsula. She did not know how far down the east coast the boundary of Bardi Jawi country went because she was Bardi not Jawi. Bardi country went down to Madarr in the Disaster Bay area from where the Coxes and the Manados come. Her grandmother’s sister was from Djarindjin and married a man from Madarr. The Coxes called M Coomerang aunty.

268 The law said that Garrambany was her country through her father and paternal grandfather (galu). Her maternal grandfather or nyami came from Nyilil. People could take country from their nyami side (their mother) if they had no father and the law says the rights are the same. The boss of a buru is the eldest. Vincent Angus could not say he was the boss for Garrambany. Garrambany’s boss was her sister Madeleine Gregory because she is the eldest. There was one law ground in Garrambany. The Bardi Jawi bosses were the bosses of all of the law grounds in Bardi Jawi country. The law said that people from Garrambany buru could use the land as they liked but those who were not from the buru must ask permission from herself or Madeleine Gregory to use the land. If strangers visiting the buru don’t ask for permission they would be told to leave. If they had asked for permission they could use the land for fishing and hunting but must then leave. In the old days if people didn’t leave when told, they would be forced to leave. Mercia Angus told M Coomerang the story of an Adiol person who went to Baniol country. The people from the buru did not want ‘him’ there and killed him.

269 M Coomerang identified on a map the area known as Pindan or Nimidiman. The law said that all Bardi Jawi people could hunt fish and gather food in the Nimidiman without permission. If a Bardi Jawi person went close to a buru on the edge of the Nimidiman that person would go and see the bosses of that buru because he or she was in someone else’s area. People other than Bardi Jawi, such as Nyulnyul people, must get permission from the madjamadjin. If they didn’t then any Bardi Jawi person could ask them to leave and if they refused to go the Bardi Jawi people would fight with them until they did.

270 M Coomerang went fishing at Djarindjin and Lombadina up to One Arm Pointand Garrambany. She used to go fishing there with her husband for turtle and stingray. They did not need permission to fish near Sunday Island because it is her husband’s country. If she went to Sunday Island now, she would get permission from Khaki Stumpagee. If she wanted to go fishing off the coast of Ngamagun (site 88) she would seek permission from Mr Sampi’s daughters. Bardi Jawi law said that she could not get permission from Mr Sampi because he was her in-law (jamnyal alur). Other Bardi Jawi people wishing to fish off the coast of Garrambany should get permission from her and her family. Strangers like a Nyikina person wishing to fish off the coast of Garrambany needed to ask permission but generally they would be told to go.

271 M Coomerang was taken through a number of paragraphs from the statement of the substance of her evidence. She said of the galwa:

‘I have seen Bardi people using galwa or gaalu. Anna Jacky’s father, old man Jacky was the main person for gaalu all the time and Mr Paddy’.

The galwa was used in the sea on the west coast and on the east coast. She remembered seeing old man Jacky and Mr Paddy pull the galwa onto the Djarindjin beach. When her people started to speak English the Bard on Sunday Island used ‘Bardi’ and ‘galwa’ instead of Bard and Gaalu. Bardi people have always hunted for turtle and dugong. When she was a child old man Jacky would go hunting on the sea and return with dugong or turtle on his galwa and cut them up on Djarindjin beach. He would then share the meat with her family and the Alberts because they were his jawul. There were rules for cutting dugong and turtle. The top part of the animal is cut and skinned then cut into different parts that are given names.

272 M Coomerang told how she became a boss woman while she was living at One Arm Point. A young boy named Albert Dougal was going through his law (ululung) but his boss woman became ill. The law said that a boy could not go through the ceremony without his boss woman. Some of the men remembered that she was the boy’s grandmother so they asked her and she couldn’t refuse. The men told her where to sit and told her about the law ground and her role in ululung which is kept a secret. During the anggwuy ceremony the women would face away from the bush and the boss woman would wait in the front. The boss women were responsible for ensuring that all the females were ready and didn’t make any noise. Then at the right time the boss woman would call out ‘your jawul is coming’. The women were then told what to do. The men sang and everyone danced until the singing stopped. A law woman felt happy during a ceremony as long as everything was done according to the law but it is a big responsibility.

273 Lawmen choose boss women from those with white hair. They know which of the women are trustworthy and can keep secrets. The law says that once a woman becomes a boss woman she keeps that role until she dies. A boss woman must not refuse to go where she is required; if she does she will get sick or get pains or aches. Boss women are respected because of the law. They are not permitted onto a law ground except when there is a ceremony. During a ceremony women and children sit separately to the men who are on the other side doing men’s business. She said:

‘The rule is from the law itself, from Galalung himself. If I went on a law ground at the wrong time, I would get into trouble from the law itself from the ground.’

M Coomerang said the law ground was very special and powerful. If she entered she would get sick. If a stranger wanted to build on the law ground the lawmen would try to stop it but if the stranger refused to stop he (gardiya) would get sick and die.

274 A jawul was similar to a godson and the godparents had their jawul for life. Anyone could become a jawul. The law about jawul brought the community closer because everyone could help each other. If law time were close and a boy did not have jawul then aunties and uncles were asked. Boys must have a woman jawul and a man jawul but they did not have to be married to each other. A jawul woman would feed and clothe her jawul. During the Anggwuy ceremony the jawul women would stand in a line so the jawul boy knew where to go. ‘The jawul men then does their business painting them up’.

275 M Coomerang spoke about her marriage outside the rules of ‘jandu’ and ‘inar’. She said:

‘Inar is mothers and uncles, nieces and nephews. I got married to an inar man Lockie. He should call me aunty. We broke the law. Nobody didn’t punish me because I had too many big brothers.’

There were consequences however:

‘But in law way, someone might have taken my mother to pay you back kill her. My cousin brother said to me that for your actions, your mother died. He was a jalngunggur, black man magic. So it controls your life. Inar and jarnd.’

276 Speaking of vacant countries or burus, M Coomerang said that under Bardi Jawi law if all the members of a buru have passed away that buru was owned by the Bardi Jawi people. An example was Guljaman. People other than Bardi Jawi who wanted to visit the vacant buru to fish or hunt must get permission from the bosses.

277 M Coomerang was taken through a number of supplementary paragraphs of her statement dated 27 June 2003. They gave an account of a road trip with Krysti Guest, BenWurm from the KLC and someother Bardi Jawi people on 3 June 2003. She told the staff to stop at two locations. The first, designated ‘Location 1’, was the track to the north of Garrambany. She identified the place as Nimidiman country close to Barlanganan buru which is close to Garrambany buru. She remembered walking to that part of the country as a child. The second location was along the Garrambany access road. M Coomerang’s old people had told her it was the boundary of Garrambany and the Nimidiman. She said that Nimidiman is also identified by ‘manawun’, which are woolly butt trees. Closer to the coast there are ‘lunjumard’ which are paperbark trees, ti-trees and ‘gidigid’ (Kimberley Heath). The Nimidiman also had a particular smell. During the same trip Aubrey Tigan identified the boundary between Nyilil and Nimidiman country. This was marked as Location 3 on the map. She agreed with him because she knew the area well as her mother was a Nyilil woman.

(xi) J Rock (deceased)

278 The next aboriginal witness called was Mr J Rock (now deceased). He commenced his evidence on day 6 (14 May 2002) of the trial before Beaumont J.

279 J Rock was born in 1922 at Lombadina. The name ‘Lombadina’ comes from the Bardi word Jarrinyan. His mother was born in Garramal country (Cunningham Point) on the south-east coast. The Bardi word for the area on the south east coast is Baniol. His country comes from his grandmother and his uncle Jack Eaton. Their country was Maljin. Mr Rock said that his whole family was from Baniol country. He said:

‘That is why we call it Baniol. They are the Baniol people. Make no different who are there, but they Maljin they came from Baniol, Garramal side’

280 On day 20 (28 June 2001) Mr Rock was recalled for the purpose of cross-examination by counsel for WAFIC. He was asked whether he was familiar with the areas to the south east of Cunningham Point. In reply Mr Rock said that the area, which includes Goodenough Bay, is Nimanburu where the corroboree starts. Nimanburu differs from Ululung country to the west of Baniol. All people living in the area follow the same law.

(xii) Victor James

281 Victor James is a Bardi man born at Lombadina on 26 August 1944. His bush name is Galawid. His father was Jimmy James, known as Daygan. His mother was Florrie. His brother, Moses, had a different father from Bidyadanga who ‘grew Moses up’. Moses followed his father in his country. Victor followed his father, Jimmy in his country. His country is Barrinybarr. He is married to Elaine Jones, known as Kurana who comes from Roebourne. They had eight children, one of whom is deceased. There are four boys, Edward, Andrew, Jeffery and Simon and three girls, Janine, Pamela and Camelia.

282 Mr James gave evidence at the first trial on day 6 (14 May 2001) at the Djarindjin school hall. He said he was born at Beagle Bay. His mother was living at Djarindjin. That is where he lived as a young boy. He went to school there. Before starting school, and while he was at school at Djarindjin, he would visit parts of the country including his father’s country Barinybarr. Barinybarr and Swan Point are his country also. Both his father and grandfather are deceased. He stayed at school until he turned 16 or 17. Then he got a job at Streeters and Male in Broome after which he worked on a pearl farm at Kuri Bay. He then went to Beagle Bay where he married.

283 When at school Mr James visited Barinybarr ‘maybe once a blue moon – month’. When working for Streeters at Kuri Bay he would come back on his holidays and visit Barinybarr. He was 21 when he was married and lived at Beagle Bay for about 10 years. He continued to come up to Barinybarr. If he could get a vehicle he was ‘up and down’. It was more or less every fortnight. When he went to Barinybarr he would camp on the beach and fish. He described Barinybarr as the most northerly country at the Swan Point end of the Peninsula. It used to be possible to walk to the island Gardiyn at low tide but the reef had been washed up by the current. He knew nothing about Brue Reef. His mother’s country was the Disaster Bay area, namely Ngiling Bay, south of Goodenough Bay. His mother is a different Florrie from Madeleine Gregory’s mother.

284 After living in Beagle Bay he came back to Djarindjin to live. His children were ‘big kids already’. He only had two still with him. From Djarindjin he would go to an outstation at Barinybarr with an ablution block, a bore, a tank and a little shed. It is very hard for him to get out there. He had an old Landrover. He knows the country. He spoke of old wells and the umban on the beach from which it is possible to get ‘half salt water’ – a ‘brackish sort of water’. There is a fish trap or mayurr straight down from the beach side, past Miligun on the left hand side. There is a long reef which is part of Barinybarr.

285 Mr James spoke of the raya. He said:

‘Raya is like something if maybe if I’m sleep under the tree or somewhere and there’s somebody watching, they could see, but you know, only just the one person will see it. It’s the raya, you know. If some other thing they call the raya with you, fish or something, and you can’t eat, well ...’.

286 He told a story, not unlike the story about the spearing of the ocean mullet by Mercia Angus’ husband when she was pregnant. When Mr James’ wife was pregnant with their first daughter, Pamela, she told him not to go out hunting fish or kangaroos or stingrays, for fear that something might happen to the little one. However he broke the rules and went turtle hunting and speared a turtle through both eyes with a harpoon. When his daughter was born she had two different coloured eyes. Turtles are still important for his family. But his daughter gets sick if he catches little turtles.

287 All of Victor James’ sons have been through the law. Each had a jawul man helping him. The relationship is such that if they catch a turtle the jawul has to give his ‘godfather’ the first piece. The Bardi word for the entitlement is nimalj.

288 Mr James had seen people out fishing in the old days on garlu. They are made from special trees from Disaster Bay or Goodenough Bay. The barrawar, is a canoe made out of a paperbark tree or cork tree, known as jalgirr. He had travelled in a paperbark barrawar from Iwanyi to Galan at Jayirri when he was very small. There was one out at Kambur. The barrawar canoes were used by Bardi people a long time ago in the old days. It is a Bardi thing. It was put to him that the barrawar came from the east side of King Sound from other people, not from the Bardi people. He maintained that the Bardi made their own.

289 The word ‘lululu’ is a word for the shark. He had heard lots of stories about sharks. The sharks so named seem to have benign attributes:

‘They say if you do have a problem with your raft or tiger sharks or something around, that thing would – or you capsize or something, the thing – that puts you on the back and take you to shore.’

290 Mr James learnt about bush fruits from Djarindjin right up to Barinybarr. He had obtained bush fruits himself. He named the gabiny, gurralja, junguny, gury and gulmamaya. He knew of the fish poison barnjut. It could only be got from Rumble Bay and around Borlk. The sea cucumber could also be used. It has to be smashed up and put under the rock in pools. He could eat any fish apart from Red Emperor and the poisonous blow fish or ngorr rrinj.

291 Mr James gave evidence again on day 16 (22 June 2001) at Barinybarr outstation which is close to Gadiman. Barinybarr ran from Gadiman ‘right up to the corner’. He said:

‘It’s sort of big place but we name this outstation out there – name’s Barinybarr.’

The corner he was talking about was Swan Point.

292 The buildings at the Barinybarr outstation were put up in the 1990s. First there was a shed, then an ablution block, then a tank and a bore. Before that he had a little shed and paperbark ‘things’ which he used when he came out camping. The paperbark hut he had since 1987 or 1988. He knew of a law ground in the area. He pointed north-west to indicate its location. It was ‘this side of Gadiman’. He was asked whether there were any other important Ngulungulu places in the area. He mentioned one next to Swan Point used for corroborees.

293 He is the gamelid for Barinybarr. The term ‘gamelid’ means the boss for the buru. His brother is also gamelid. He is the full blood. His name is Robert James. He is in Darwin. Brendan Chaquebor has connection to that country from his father’s side. He is also gamelid for that country. Victor’s son, Eddie James, is another gamelid. The State put to him that he was gamelid through his father. He said it came from his grandparents, from his grandfather and he took it from his father. His children took from him. His sons would pass that on to their children. Asked what happened with the daughters, he said:

‘Well, they with me but you know they only for – well, not for this thing, the law and that, you know.’

This latter theme was taken up by counsel for the Commonwealth who asked whether in Bardi law women became gamelid for the country. He said:

‘Oh yes. They – for their what’s a name – land, yes. Buru, yes.’

He has three daughters who are gamelid for his country. He and his father and all of his children are bosses for that place. When pressed on that he said:

‘Well, you know – well, gamelid is more or less like the boss for that thing. Like if I go and my daughter is there, well more or less she’ll be – all gamelid people for there.’

His childrens’ children should be gamelid too. If his daughters marry somebody who is gamelid for another place, it would be up to them. If they marry then follow their husband, then they would not be gamelid any more in his buru. They would go to their husband’s side:

‘But it will be always here. Their buru will be here all the time, this place.’

Asked if there was a rule that you could choose between your mother or your father, he said ‘you go by the father’.

294 He gave some further brief evidence at Gadiman in which he identified Gadiman as part of Barinybarr. He had heard stories about the place but he got them from Rosie Bin Sali.

(xiii) Elizabeth Puertollano

295 Elizabeth Puertollano was born around 1920. Her bush names are Niliwil, Nilili and Daygan. She was born at Bulgin. She is a Bardi woman. Her father, a European pearler, Harry Hunter, died the year she was born. Her adopted or social father was Johnny (Jarni) Wanggal. Her mother, Francis, was known as Wobijarr. Her buru is Jilirrburu encompassing Chile Creek. It falls within the regional aggregate of Gularrgon. She was married to Stan Puertollano, a Yawuru man, now deceased. They had seven children, five boys and two girls. She lives at the outstation at Chile Creek, sometimes at Lombadina and sometimes in Broome.

296 Mrs Puertollano gave evidence on day 6 (14 May 2001) and day 13 (19 June 2001) of the first trial. She took the bush name Nilili from her parents. From ‘her father, her granny – grandmothers really’. It was her grandmother’s name. She did not know how she got the name Daygan. Her adoptive father, Jarni, was the one who ‘grew her up’. His country was Jilirr which is Chile Creek ‘this side of – side of Lombadina’. She pointed south from where she was giving evidence at the Djarindjin school hall. Her mother’s country was Marndud in the Barinybarr area. Her mother’s father was Jinerre. She thought he had country but didn’t know. She supposed it was around Barinybarr.

297 Mrs Puertollano spoke of her sister, Theresa, who was also brought up by ‘her social father’, Jarni. There is another sister, Kristy and a brother. Theresa and Kristy followed Jarni’s country. Asked by the State whether her children followed their Yawuru father for his country she said:

‘Well, they free to do what they want to do, whichever one.’

She followed Jarni for his country. Asked if that was the right way to take country, she said:

‘Yes, I think it’s the right way for me. I mean, yes. But if my children would rather live in their father’s country, well they’re free. I don’t stop.’)

Asked in re-examination whether any of her children follow their mother’s country, she said they were all trying to follow their mother’s country. Four of her daughters, Mary, Roma, Ann and Rowena were all living with her at the outstation. Mrs Puertollano is related to Mercia Angus. Mercia has a connection to the country. Her place is Julbad. Her father gave that part of the land to his two sisters, Mercia’s mother and another woman called Gudal.

298 Before she went to school at Lombadina Mrs Puertollano lived at Bulgin. There was a creek there called Hunters Creek or, in Bardi, Niim Creek. She thought she started school at around age 9, 10 or 11 and continued until age 14. She would sometimes go to Jilirr with her parents on the first Sunday of the month when the nuns were on retreat. She did not go that many times. Mainly they used to go to the closer places.

299 After leaving school Mrs Puertollano worked in the convent as a cook and later in the laundry. When she was working she wasn’t allowed to go anywhere. On Sundays the Sisters used to take her and others from the convent to Galani near Chile Creek. From there they would cross over the creek to pick fruits which were in season at the time. She then worked at the Derby Leprosarium with the sisters for a year. After the leprosarium closed in the 1940s, she worked as a cook in the Derby Hospital for about three years. She returned to Lombadina before she married and lived in the dormitory. She had entered the native convent at Beagle Bay in 1942. After she was married she and her husband lived in Broome for a while. Eventually she came back to live at Lombadina permanently. Perhaps not surprisingly, given her advanced age, Mrs Puertollano was not precise with the dates and sequences of these events. She is now living at Jilirr at Chile Creek. There are three houses there including a three-bedroom house. The families living there have their own houses. There are also some sheds around the place.

300 Mrs Puertollano gave evidence at Malarrgun (site 101). It is part of Jilirr which is Chile Creek. From Malarrgun to the corner of the sacred ground and out that way is all in the Chile Creek area. The women and children are not allowed on the sacred ground, only the men can go there. Asked how she knew about these places, she said that her parents had told her:

‘Well, in the custom of the Aboriginal people, all lawgrounds are forbidden who are women (sic) and that is where the boys become men and have their ceremonies. So, no women is allowed in any of those ceremonies.’

She said it was possible to dig along ti-trees in the area and get drinking water. She could point to only one well. It had a windmill pump.

301 Mrs Puertollano gave further evidence at Jilirr near the mouth of Chile Creek. The area in which she was standing was the ‘main area the real Chile Creek – Jilirr...’. It went right back to Malarrgun, to Bayargur and around to Julbad. Looking south along the beach she identified rocks in the distance as Janggurinyan (site 99). On the other side was Jarrbanmayi (site 102) and Lumard. There is marsh and some hills at Jarrbanmayi. There are trees and old camp fixtures from the old peoples’ times in the hills. There is also a waterhole. The leftovers from the camps are just little stumps of sticks which the people brought in from the wattle trees. There are pearl, oyster and cockle shells left by the people who had camped there. She pointed to an island called Lumadinarr. It is also known as Lombadina Point. Part of that island is Julbad. Bulginarr stands to the north-west of her location. Chile Creek has ‘something to do with Bulginarr’. She pointed to dark blue water offshore which she called jarrayn or deep water. She said that was part of the creek.

302 Pointing south Mrs Puertollano referred to an outstation at Lumard where the Chaquebors live (site 104). Their father comes from Bidyadanga. She let them use the area because they are relations. There was a reef called Jungarriyn offshore from where she was standing which belonged to the Dinka family who are part of her father’s community. The Dinka family now lives in Broome. The reef belonged to them because they were with her father and they lived at the same place as him. They all got on together. They were related to her father. The father Dinka was like a nephew of her father and his children now call her grandmother. They are Bardi people and they sometimes come out to the country. They haven’t got cars and it is hard for some people to come out. When they come they pick oysters and see the place. Mrs Puertollano was asked whether anybody looks after the reef when the Dinka family is absent. She said, ‘Yes, we look after it.’ She and her family also use it to pick oysters. But everybody knows that it is their rock.

303 Mrs Puertollano next gave evidence at Urlg (site 97). Some of her grandsons and her sister-in-law were present. There were some great grandchildren present as well. She pointed to Mardalon (site 96) and to Urlg Creek. Asked how far Jilirbur extended she pointed north-west to two stones and west to a tree. Her father’s water hole is in that locality. The tree she pointed to was an Idul or pandanus. Looking east-north-east she said Jilirbur didn’t go that far. It goes beyond the places where they would dig for water but the other side is Lamangun which is Basil Point. The burus on the other side of the creek in a north-north-easterly direction are Ilordon and Banggarr.

304 Mrs Puertollano spoke of fishing in Chile Creek and the use of barnjut when the tide was out and very low. Other modes of fishing included the use of a line and spears. She pointed to an iron-tipped spear. She spoke also of the mayurr or stone fish trap. There was one to the east. She described ayan fishing. People with spears would hit the water and chase fish into a corner in shallow water where they couldn’t fight any more. She had seen people fishing that way on the beaches, all over the place and anywhere they could do it.

305 Mrs Puertollano gave further evidence at Ngurdiny which is part of Jilirr. She did not know how long there had been buildings there. Jilirr goes inland to Malarrgun and out to Ngurdiny. It covers Julbard, Jarrbanmayi and Lombadina Point. Jilirrbur goes beyond Malarrgun. Cross-examined by the State, Mrs Puertollano said that Jilirrbur is part of the Gularrgon area. The area goes as far north as One Arm Point. The word Gularrgon refers to the people from the west. When the sun sets in the west, that’s gularr. When it rises in the east that is alang. Jarrinyan is part of Gularrgon. Mrs Puertollano gave a number of place names within Gularrgon. She mentioned One Arm Point, Ngamagun, Lirrimarr, Mardud and Barinybarr. Banggarr and Junggumugan are closer to Lombadina.

306 She was shown a photograph (X-R) exhibited to her statement of the substance of her evidence (which was not itself in evidence). She named a number of the people in the photograph. One was Yawu, who was related to Billy Chaquebor and to herself. She recognised an uncle, Baligi. Another, Gudbadu, was like a grandfather figure to her and to the Sibosado family. Another man in the picture was called Buga or Mandi. Gunguru was her mother’s sister’s husband. Sitting beside him was Jackie Bandangur. He was related to Anna Phillips. Standing next to him was Jabulu or Harry Lauder. He was related to Johnny Lauder. B Lauder was, at the time Mrs Puertollano gave her evidence, a living member of that family, although she has since died. Standing on a lower rock was Jimij who is an uncle of hers. On the far right was a man called Jinerrb, her mother’s father. Sitting among the boomerangs was Ginggul. She thought his children were deceased. In the picture there were shields, marrg and boomerangs used at corroboree times and spears.

307 Mrs Puertollano lives at the outstation with her sister-in-law and her daughter, Roma and Roma’s family. The Chaquebors live at the Lumard outstation. Judy Chaquebor was Judy James but she married a Chaquebor. Her country is Lirimarr. Mr Chaquebor’s country is Pender Bay. Biddy Chaquebor’s father was Jimmy. His country was Bidyadanga way.

308 Mrs Puertollano pointed to a tree with fruit, which she called arrangur. The wattle tree is wanggay, which is a Bardi name. The beans from the seeds of the wattle are eaten. She identified a tree called gulay. Another tree called gorgor has edible seeds. The nuts can be eaten when dried out from the inside. Jalgirr is the turpentine tree. It yields little green berries. When they ripen they go purple. She used to collect seeds, dry them up and crack them up with a stone and eat the nuts from the inside. Gamelun is a food also. She could not see any from where she was giving her evidence. Nialbon is ‘a little oniony kind of a thing that grows in the ground with straight leaves, sort of, or stems and people dig for it.’ Ngarga refers to a root which grows in the bush but mostly in rocky places. The word ngurrar refers to a little root vegetable along the edge of the marsh.

309 All people can go to the Nimidiman country beyond Malarrgun and the main road and hunt there. If people who weren’t Bardi went there they could hunt just like the Bardi people do if they don’t cause trouble. Nimidiman means ‘together this is our place.’ She told some stories, one about a grass hawk, Jungalbil. When people are fighting the hawk swoops down, gets a beak full of grass, flies up and makes fire and spreads it along in a line to stop the fighting. She said people can take sticks for spears and to build their huts and any fruit that is there can be taken from the trees. They can dig in the ground for roots. Kangaroos and lizards live there and they are a source of meat.

310 Mrs Puertollano told a story about two Bluebones or parrot fish which story became important in debate about the southern boundary of Bardi country. One of the fish was from Bardi country and the other from ‘Pender Bay side, Nyulnyul’. They had a fight. They fought around Pender Bay. The Pender Bay Bluebone got the best of the Bardi Bluebone and knocked its front teeth out. The Bardi Bluebone came back sick with its front teeth knocked out. As a result all the Bardi people took to following the Bluebone that had its teeth knocked out in the fight. They broke their teeth and got them knocked out just to show they cared. She has seen Bardi people with their front teeth knocked out.

311 Mrs Puertollano said that Jilirbur is her country and her father’s country. She calls it a bur. Her mother’s country is called Ningarlm. That is in Mardud. It could be her country. She was free to choose. She was asked whether anybody told her the ‘old rule’ governing how Bardi people got their country. She didn’t think there was any old rule. There was just the one. She said:

‘According to Aboriginal people, people knew where they come from, but if there’s a rule, then we had it only for the sacred places in different countries. But if there’s people, say from here now, I have had people here and there was a rule made up by my father for – that no-one is to walk that bush or this bush, then I must know it.’

She remembered that, as a girl, she had been told the rule was that Bardi boys and girls got their country from their father. She was not denying that this was still the rule. She said:

‘No, it’s not that way I’m telling you. If – yes, if this from the father’s country, because the mother’s country is what you call ningarlm, and what the father gives to the children in their country, that is bur. That’s their place. Bur is place.’

She had been told that it was dangerous for strangers to go into her father’s bur. Her father might do something to a stranger found on his country. Strangers coming from somewhere else who were not recognised would get into trouble. She said:

‘They killed a few.’

If friends or relations were coming they would send a message to say they were coming or would light a fire and send a smoke signal or something like that. She was told this by her father and mother among others.

312 Asked whether Bardi people bother with that anymore or whether they go into each bur as they like, she said:

‘Well, a lot of life has been changed now and if we still follow the tradition, we would have known if somebody lit a fire and told us someone had a turtle over at Banggarr, lit a fire there to send a smoke signal. We would have known. Then we’d go over there letting us know that there’s something there for us to eat or get ...’

She agreed that this didn’t happen any more.

313 She used to use the fish trap or mayurr on the other side of the creek in Urlg. Girls and boys from the dormitory used the same fish trap when the tides permitted. They didn’t ask anybody’s permission to use it. Earlier people might have. People not from the area who wanted to catch turtle at Jilirrbur did not have to ask anybody:

‘No, they can go any time in the sea and get the turtle when they share it with the people of the land.’

314 She spoke about the marriage rules. There are two rules. She didn’t know how to describe them in English. There are two classes of relationship, inar and jandu. The inar people must marry inar and the jandu people must marry jandu and they’ve got to know who they are. Marriage according to those rules is a ‘straight’ marriage. She didn’t marry straight. She didn’t know what her husband’s skin was. She didn’t think the young people today marry straight.

(xiv) Paul Patrick Sampi

315 Paul Sampi was born on 1 March 1932 at Djarindjin. His bush names are Janganbirr, Walli and Nurduganburu. He describes himself as a Bardi. His father was Patrick, known as Jambi. His mother was Amy Dougal, known as Bidur. She was from Lirrimar between Swan Point and Gambarma. His paternal grandfather is Nubul. His country and that of his children is Ngamagun. It is also known as Managun and Gulamanon. He has 8 children, 30 grandchildren and 7 great grandchildren. Some of his children live at Gambarnan and some have country at Barinybarr. One of his daughters is married to Victor James’ eldest son. Some of his grandchildren are at Garimbar. They have country at Garimbar because it is closer to their galu, Victor James.

316 In cross-examination by counsel for WAFIC Mr Sampi said he described himself as a Bardi man and would not described himself as a Jawi man. His father and his paternal grandfather were Bardi men. He rejected the proposition that in order times there were more differences between Bardi and Jawi people than there are today. He said:

‘There were no differences. The Law was the same from the very start, and it’s still the same.’

He did not know anybody who speaks a different Jawi language today. There were slight differences between the two. But Bardi and Jawi were always one and the same. The language and songs for anggwuy are sung in the Bardi language. Jawi had different songs for anggwuy in older times. The Jawi version of anggwuy was called mangali. Anggwuy is a Bardi name. In re-examination he said he had been listening to people speak language on his country ever since he was a kid. There is no difference between the way the Bardi and Jawi people speak their language.

317 Mr Sampi grew up in Djarindjin at Lombadina and went to school there. He left school at 13 during the Second World War. He ran away. He saw his parents walking across the marsh going to Beagle Bay and thought he would join them. He went back to Ngamagun to do fishing. When he was at school they would have a couple of weeks holidays and each family would go to its buru in the break. For the most part they would walk there. There was no transport. It is not very far from Djarindjin to Ngamagun. He used to carry his swag. Later he and his wife would carry the swag and food to Ngamagun and back. It would take about three or four hours. During the war he was in Broome. When Broome was bombed the police evacuated everybody. He thought he was at Beagle Bay for three or four months. He then returned to Lombadina.

318 Mr Sampi started work in 1947 after his father died. He left Lombadina in that year and went back to Broome. He worked for about a year at Jabali’s Farm, operated by Aubrey Davey. He then worked on pearling luggers with Streeters and Male and Alf Morgan. He left Broome in 1954. During his time in Broome he visited Ngamagun whenever he could for holidays and on weekends. He would go fishing there. He used spears and barnjut. He also used another fish poison called ilngam which comes from a small bush. It is smashed up and used with sand and put under rocks. I take that to mean that it is used in rock pools.

319 After leaving Broome Mr Sampi went to Sunday Island. He had been corresponding with a woman there for almost five years. He wanted to marry her. It was hard because he couldn’t just pick anybody to fall in love with. It was against the rules. Aborigines would be given a wife. If he wanted someone outside the rules, he would have to fight her father and uncles for her. Apparently he did this and married the woman he wanted. They stayed on Sunday Island for four or five years until about 1959. They had one child. He was on Sunday Island when the mission closed down. He looked after some old pensioners who were still there when the rest of the island’s people left for Derby. In the event he got the old people across from Sunday Island to Lombadina. There was a number of them. Some later went back to Sunday Island.

320 Mr Sampi stayed in Lombadina and worked as a truck driver. He helped his brother out with truck driving. During this time he would go to Ngamagun. He had transport and went as often as he could, especially on weekends. He went to One Arm Point when it was being developed in the late 1960s or early 1970s. He became involved in the building work there. Other people came back from Derby to settle at One Arm Point. Some would revisit Sunday Island to do a bit of fishing and camping. Others went to places like Barinybarr, Gambarnan and Galan.

321 Although he was a strong Catholic, Mr Sampi had gone through the traditional law. He was fairly grown up at the time he did. When he was growing up at Lombadina Djarindjin the Catholic church forbad the practice of the laws. Mr Bin Sali had tried to get away from Djarindjin to go to Sunday Island to go through the initiation ceremony. People at Sunday Island practiced their traditional law. It couldn’t be stopped. The ministers tried to stop it but because it was something that was given to the people it was part of them. They had to practice it. The law is practiced now at Lombadina. Every year about half a dozen or more kids go through the initiation ceremonies.

322 Ngamagun is sacred not only for Mr Sampi and his family but for the whole Bardi people. There are sites of significance there. The last time there were ceremonies at Ngamagun was probably four or five years ago. The last ceremony at Lombadina also went back five or six years. At One Arm Point there is a ceremony every year. Ngamagun has five or six buildings. Gulamanon is another outstation in the Ngamagun area which his brother Patrick Sampi has.

323 The Commonwealth asked Mr Sampi about his time at Sunday Island in the late 1950s. He said there were people living there all the time. It was put to him that Sunday Island is Jawi country. He said:

‘Yes. Bardi Jawi, yes. Jawi, yes. My grandmother’s a Jawi.’

He was asked whether it is Jawi or Bardi Jawi country. He said:

‘Well, Bardi and Jawi.’

The island is shared because there were a lot of Bardi and Jawi living there at the time. There is hardly anybody living there now except Angus and Khaki Stumpagee.

324 To his knowledge Sunday Island was Bardi and Jawi land even before the white people came. It was always ‘mixed up’. However Jayirri (Jackson Island) was Bardi. He wasn’t sure about Jaylan Island. Asked what makes country mixed up, he agreed that it is because there are Jawi and Bardi people living there. There are a few Jawi people living on the mainland including Mr Tigan whom he also described as a Mayala man. The mainland is mixed Bardi Jawi too. The language on the mainland is Bardi. The same is true of Sunday Island. Most of the Jawi language has gone. Before white people came the language on Sunday Island was Bardi and Jawi because they were all living together. There were a couple of Worrorra people living on Sunday Island when he was there, but they died.

325 Mr Sampi described the people from the east coast of King Sound as Baniol. The people on the other side of King Sound, the other side of Long Island on the mainland, were Mayala. There were Mayala people on Sunday Island when he was there. Alec Isaac was a Mayala person. He could not remember anybody from Broome or Derby on Sunday Island when he was living there. The word ‘Mayala’ as he explained in re-examination, refers to Spinifex grass. It is found on Iwanyi (Sunday Island) and Jayirri (Jackson Island).

326 Mr Sampi’s evidence on day 9 was given at One Arm Point hall. That evidence however concerned the presence of expert witnesses when relevant evidence was given.

327 Mr Sampi gave evidence at the Niligan outstation on day 10 (18 May 2001). He spoke about Jindirribalgun. That is the name for the Sunday Strait which Aubrey Tigan described in his evidence as having a very rough current. Mr Sampi’s parents had been the only survivors from a boat full of otherwise Chinese people collecting trochus shells. The boat had no motor and relied on the tides and wind for propulsion. It went through Jindirribalgun at the wrong time and went down with everybody on it save for his parents and a person from Jilan. His father was a bit of a ‘magic person’ so he swam from island to island until he got to Sunday Island where he was safe. The Bardi or Jawi word for magic person is jarlgangurr.

328 Mr Sampi gave evidence at Luduman on day 12 (18 June 2001). The name of the location Ludumanmeans a soak on the edge of the bush. It is in the Luduman buru. That is the country of his mother and her brothers. Buildings at the site had been constructed by Ian Ralph and one of his in-laws. There is a lot of water along the edge of the mangroves and down near the beach where the rocks are. It can be seen at low tide. It is not possible to get the water at high tide. He used the Bardi word umban to describe the soak.

329 The next buru south was Gambarnan. There were quite a few burus north of where they stood up to Swan Point. Burus to their north were Barinybarr and Gunun. Ian Ralph and a couple of others are living at Luduman.

330 Mr Sampi gave evidence at Yagay (site 110) which is part of Judurd on day 15 (21 June 2001). The Gurrbalgunburu finishes at the edge of a marsh to their south. He has no relationship to the Judurd area. However he has been there lots of times. He goes there mostly to hunt goanna and cattle.

331 His next evidence was at Judurd (site 108) looking across Pender Bay. He identified Widung (site 118) and Judurdungun (Bells Point). He said there was a buru called Imbalgun on the other side of Pender Bay which, he said, is still part of the Bardi claim. Old Mr Henry Bujun was from that country. There was more than one person named Bujun. Mr Sampi referred to a map (X-J) and pointed out the location of Imbalgun on it. The location was marked with a blue cross. He also pointed to Perpendicular Head on the chart as Bardi territory.

332 To the south of the Bardi are the Nyulnyul. Their country starts from Midalgun which is near Emeriau Point. Another place, Galagumeran was marked on the map with a square. It is near Widung Lagoon. Mr Sampi was ‘not too sure’ whose country Galagumeran country was. Asked if it were Bardi or Nyulnyul country he said:

‘Oh, well, I say it’s Bardi. Still Bardi.’

He also marked on the map the location of Borlk with a large ‘B’. There was a collection of lakes on the map on the south-east corner of the chart. He said they belonged to Nyulnyul. Mr Sampi was asked by the State to show on the map where he thinks Bardi country stops and Nyulnyul country starts. The line he showed runs from Imbalgun across to the west in a straight line and intersects with the coast. The point at which it intersects with the coast was marked with a ‘C’. The area to the north of the ‘C’ and the west of Imbalgun is Balanggun. It belongs to old Bujun. The Bujans have an outstation at Imbalgun. They are still the right people to speak for that country. He could not really speak for that country.

333 The Nyulnyul Bluebone in the story told earlier by Elizabeth Puertollano came from the ocean starting about Mangrove Point in Nyulnyul country. It moved around the west coast, past Perpendicular Point and past Bells Point into Pender Bay Creek. Then It saw the Bardi Bluebone. The Bardi Bluebone told the Nyulnyul Bluebone that it had no right to be there, so they had a fight.

334 The Commonwealth put to Mr Sampi that in the very old days Pender Bay was the boundary between the Bardi people and others. He said that was not the case. He had not spoken to the Nyulnyul people about the boundary. But he knew that this was the Bardi area. He did not know whether elders from the Bardi area had consulted the Nyulnyul people about where the boundary should be. Asked whether there were any natural features, hills or streams which would mark the boundary along the line which he had drawn running through Imbalgun, he referred to a lake or water hole. It was marked with an ‘L’ on the map (X-J).

335 The Commonwealth put to him that the Bluebone story was about the boundary between Nyulnyul and Bardi. It was put to him that the rocks representing the two Bluebones are the boundary and provide the rationale for the story. However Mr Sampi stood by the boundary which he had previously indicated. Imbalgun was definitely in Bardi country because the old fellows told him the boundary was. They told him it was the last Bardi place along the coast. Old man Bujun speaks Bardi and not Nyulnyul. That is the reason that he knows that the area at Perpendicular Head is Bardi. He referred to the two Bujuns, one known as Short Bujun and the other as Lefthand Bujun. Henry Bujun was born at Balanggun.

336 Mr Sampi gave evidence again on day 18 (26 June 2001) at Managun (site 88). The outstation there is called Ngamagun. Mr Sampi’s eldest daughter is named Jilaynbur after it. Jilayn is about seven kilometres north-west. It is mainly a water hole or umban. The outstation at Ngamagun has been there for about 10 years.

337 The outstation Gulamanon (site 89) is about two kilometres away from Ngamagun. Jilayn and Gulamanon are part of Ngamagun buru. Mr Sampi’s brother, Patrick, has the Gulamanon outstation. Other brothers Lenny and Bonnie have places in the area. Asked why different brothers have different outstations Mr Sampi said he wanted them to be living at different places because there are a lot of sacred sites significant, not only to the family, but the whole Bardi people. I infer that he was arguing that a geographical spread of the occupancy of the buru made supervision of sacred sites easier.

338 Mr Sampi gave evidence near the boundary area of Ngamagun buru. He identified bloodwood trees or gardka. They were about 500 metres from the road. He also identified Nimidiman which he said was shared with the people from the Garrambany area. The Nimidiman area was used to hunt for lizards, possums and goannas. There was fruit to be obtained from trees and honey. However there were certain bloodwood trees that would not be touched. In cross-examination by the State, Mr Sampi said the Nimidiman area would be shared with people from Garrambany and Lirrimarr, all those people on the eastern side of the Peninsula.

339 On day 19 (27 June 2001) Mr Sampi gave evidence at the One Arm Point hall. He spoke of Jalmbarn where they had stopped on the road the previous afternoon and turned back. Jalmbarn is part of Ngamagun. It is a very significant site. There are songs related to it but he would not sing them with women present. They were related to restricted evidence that he had given on the previous day. He described a hill and a white sandy area which was part of the sand dunes. He had been and camped there for often as had his parents and older generations. He identified site 90. He said there was a bidiny there which is a water source. The name for one of the bidinys was Gunbidorron (site 91). He also mentioned Urraljinarr. Jalgararrgun is an old well (site 92). It is also known as Gregory Well. The wells belong to Jalmbarn buru. There are reefs called Banggarr and Barrgalan in the vicinity of Jalmbarn. Barrgalan is to the south of Banggarr. Another place further south, still in Ngamagunbur, is Burumarr on the sand dunes. There are stories associated with it that cannot be spoken in front of women.

340 Lalariny is another offshore place which is part of Ngamagunbur. Jarrinyan is south of Ngamagunbur and is not part of it. He was asked by counsel for WAFIC if he could talk about Lalariny. He said he could not.

341 Mr Sampi gave evidence at the second trial. Parts of a statement of the substance of his evidence were read into the record without objection. He described the character of law grounds. He said that in Bardi and Jawi country there are law grounds in many places on both sides of the country including Sunday Island. There are no law grounds in the Nimidiman because women and children need to go onto that country to get wood and to hunt:

‘A law ground is where we practise our ceremonies. It’s different to other grounds. It’s sacred. There is spirit there. The land is alive. It is alive in a cultural sense. The Law grounds are from the Law itself, created by the Creation being, that fella. I know a Law ground is there because I was told it’s there. We are only allowed to do ceremony on a Law ground. A law ground gives me a right to be there. I feel happy, a deep sense of responsibility.’

‘All the law bosses’ have a responsibility to look after law grounds and sacred places to protect them from harm. Where there is a breach of the law ‘... all the bosses come together and talk about it’.

342 He gave an account of a trip by motor vehicle on 4 June 2003 up the Peninsula during which he had identified certain locations to staff from the Kimberley Land Council. The numbers of those locations and his comments about them follow.

Location 6 - along the Garrambany Access Road at approximately the boundary between Mr Sampi’s family country, Engamagun buru and the Nimidiman country. A white gum tree helped him to remember this boundary. Different types of trees grow in Nimidiman. At Location 6 the bloodwood trees, bilar, differ from those seen on the coast.

Location 7 - along the Access Road between Guljaman and the One Arm Point Road. This was at approximately the boundary between Gularrgon and the Nimidiman country. A large jalgirr tree marked the general boundary. This information was given to Mr Sampi by his ‘old people’.

Location 8 – this location was on the Cape Leveque Road near the boundary of Ngamagun buru and the Nimidiman country. The place is near the beginning of Jurrurrun Hill, sloping down towards the east coast to a place called Jurrurrun on the marsh near Garrambany buru. Mr Sampi’s country finishes at two ngal ngurru bloodwood trees. To the west of the road are ngulungul grounds inside the Ngamagun buru.

Location 20 - this location was visited on 12 June 2003. It is along the Gunyarlin access road. It is in Gunyarlin but close to Nimidiman country. Mr Sampi had travelled through this country when he was small with his family and they had taught him about it.

Location 21 - on the Gunyarlin access road in Nimidiman country near the boundary of Nyilil and Gunyarlin. Mr Sampi could tell the location from the vegetation. It is manawun country. There are lamanggumunga trees, which are white gum trees with oval shaped leaves seen only in the Nimidiman country in the southern Bardi mainland.

Location 22 – Garramal/Deep Water Point Road around the boundary between Garramal and Nimidiman country. Mr Sampi was familiar with the location because he has travelled the country through his life. His uncles and aunties are from Garramal. He would walk from Djarindjin to Garramal with the old people being taught about the country. He could also tell where he was from the change in the trees.

343 Mr Sampi was referred to the claim area on a map and described it as Bardi Jawi country. He said:

‘It’s all one country. Bardi and Jawi are one people.’

...

The Law makes them one.

...

They sing the same songs, sing the same dance, they do the same hunting, and they practise the same Laws.’

Speaking for country means looking after country, ‘You’re part of it. And you have a right for that country.’ The right to speak to country comes from the Man. The Man left everything to the people, the waterholes, trees, streams, birds, animals, sacred grounds, honey, kangaroos and the Law itself.

344 In order to protect the country the people are allowed to stop strangers from entering. Anybody who comes into that country has to get permission. Only Bardi Jawi can come to the country. Anybody else, Nyulnyul or Jabirr Jabirr or Karajarri have to ask permission from the elders. If a stranger comes onto country without permission, he is punished. He could be speared or pelted by sticks or boomerangs. If somebody came onto his country and he needed assistance he would ask all the bosses for help. Their responsibility is to come as asked. Marriuyn amboriny refers to strangers. The words arrang ngaanga refer to different languages. The fact that a person has a different language makes him a stranger. Permission to come onto country in the old times could be sought by making a smoke signal. Assistance to people from neighbouring tribes wanting food or water because they are hungry or starving would never be refused. The Nimidiman country, the light area in the middle of the map, is an area in which women and children may go to hunt and look for yam.‘Nimidiman’ means ‘all together’. Bardi Jawi do not need permission to go there from anyone. Mr Sampi was told this by his father and by his paternal grandfather. He cannot go to the islands without permission. He has to speak to the right person. The law says that the people can go fishing in their own areas. Permission is required to fish outside their area. If asked, the permission would be given.

345 Mr Sampi’s family fish for turtle, dugong, fish, shells, lees, abalone, clams and crabs. Fishing is very important for all Bardi people. Their main food sources are turtle, dugong and fish. He is too old himself to go fishing. His family use boats and handlines when they fish. Mr Sampi has hunted dugong and turtle all his life. He used to use a galwa which is a mangrove wood raft. Old Mr Paddy had the galwa. Another family, Jacky’s family, had another galwa. They used it to hunt turtle and dugong. Hunting for turtle and dugong from a boat involves spearing them. It is possible to catch a turtle by hand during the mating season:

‘The married turtles, which is in the summertime, when we call October November.’

Dugong are hard to catch. They are very fast. They can be pulled on to the galwa when caught. Bardi Jawi have been catching dugong and turtle, ‘ever since Creation...’

346 Mr Sampi was asked what law was practised by Kevin George and Jimmy Ejai and another old man who had recently died. He said in each case it was Bardi Jawi law. There is a word in his language inamunonjin which means ‘... from way back, long long time ago.’

347 Mr Sampi’s buru is Ngamagun. He and his family have the right to live on that buru and derive that right from the Law. His father and grandfather told him about it. They told him to protect it, to look after the Law and to see that no strangers come there. It is the most sacred area in the Peninsula. His buru is part of Bardi and Jawi country.

348 Asked about the relationships inara and jarndu and their importance to Bardi and Jawi people, Mr Sampi said:

‘Well, it’s – it’s really important, very important. You have the right to – marry – you got to – you got to marry the right person, you know? We can’t just marry any – any girl you see. We have to marry out jarndu. Jarndu has to marry jarndu. Inara has to marry inara.’

For a jarndu to marry an inara would be wrong. It would be like marrying an aunt or daughter or mother-in-law.

349 Mr Sampi pointed to the Guljaman buru on the map. All the people who used to live at Guljaman had died. He speaks for Guljaman because he is a next door neighbour. There are sites there and the dunes are protected under the law. The island of Jalan is also uninhabited. Some of its people have died, some are still alive. Mr Ejai now speaks for Jalan. Guljaman and Jalan are both part of Bardi and Jawi country. If people have passed away from a buru and there is nobody living there any more, it is still part of Bardi and Jawi country. He was asked whether there was ‘still anything in the ground’ there. He said:

‘Well, the Law’s still there.’

There are still sacred places. His obligation in respect of Guljaman is to protect the area. Mr Ejai has a similar obligation with respect to Jalan.

350 Counsel for the State asked Mr Sampi to give an example of something that he had done that amounted to looking after country. He said:

‘And I protect that in every way I can, by keeping people away from there, and see that no – you got tourists running up and down, you know, sometimes tourists gallivanting around the countryside. And I like to protect those areas, best I can.’

Mr Sampi could not explain all of what he was speaking about because some of it could only be explained to men. There is very special ground in the Ngamagun buru.

351 Mr Sampi had been to a ceremony on Sunday Island. Asked if he had done anything to look after or speak for the island, he said it was not his area. It was Khaki Stumpagee’s area. Nevertheless it was Bardi and Jawi country. Before Mr Stumpagee it was the Jawi peoples who spoke for Sunday Island.

352 He was asked about two sisters, Nyikina people who live at One Arm Point and if they had sought permission to live there. He said that they had lived all their lives at Sunday Island where they had been married. They were then part of the Bardi and Jawi people. Although they are Nyikina people they have the right to live at One Arm Point because their husbands are Bardi Jawi people. It is not clear here whether Mr Sampi was speaking of the husband of one of the sisters, or the husbands of both of them. If a Bardi and Jawi woman were to marry a Karajarri person, he would not have to ask permission to live in the Bardi area. Two of Mr Sampi’s daughters had married Karajarri people. One of his sons-in-law had died. He had lived at Ngamagun. He could come and live there.

353 Mayala people are Jawi people. Most of them live at One Arm Point. Their country is Mayala. That’s where they come from. It’s across the bay on the other side on the mainland. They used to speak Jawi.

354 The songs and dances of the Bardi and Jawi are done in the same language. Their songs and dances are different from those of the Nyulnyul and the Jabirr Jabirr. However the latter two groups have the same inara and jarndu. There is a Nyulnyul and a Jabirr Jabirr language. However Jabirr Jabirr and Nyulnyul are one and the same. There is a Bardi language and a Jawi language. The place names are Bardi names and the people all talk Bardi language. Not many speak Jawi any more. They used to, but they have all died. The name Iwanyi for Sunday Island is a Jawi word. The places in his buru in Ngamagun are Bardi names. The people who used to own Jalan, used to speak Jawi before.

355 Mr Sampi repeated is claim that there is a buru at Pender Bay. It includes the waters of the whole Bay. The area on the other side is Nyulnyul. That is a Nyulnyul buru. It starts at dry land. Nyulnyul people who want to fish in Pender Bay need to get permission. He identified Gurrbalgun at Pender Bay as the last Bardi buru to the south. Imbalgun is on the other side of the bay. He would class it as a Bardi area. The only language for the Imbalgun buru is Bardi. Asked if he knew the names of any places in Imbalgun buru he referred to Jududurrgan, which is a Bardi word. Cross-examined about Gurrabalgun Mr Sampi did seem to contend that it was Bardi by inference or argument rather than by knowledge. He said:

‘When I say it’s – it’s Bardi country because it’s right in – in the Bardi’s area.’

Mr Sampi knew a man called George Wurman. His mother and Mr Sampi’s mother are sisters. He died a long time ago. He was living at Djarindjin. His buru was Gurrbalgun at Pender Bay. Mr Sampi was not sure whether there were any Bardi Jawi living to the south of the southern boundary of the claim area.

356 The testimony turned to the currents between One Arm Point and Sunday Island. Mr Sampi referred to the lu called Milamil at One Arm Point and to another lu called Lirruljun.

(xv) Rosie Bin Sali

357 Rosi Bin Sali is a Bardi woman born on 25 April 1925 at Garningunjun. Her bush name is Marnung. Her father’s was Baligi. His buru was Mardud buru. She knew her father’s father, Jinerrb. Her mother’s name was Margind. She lives at Mardinan at the Galan outstation She was previously married to Bonny Angus, known as Barndangurr, a Jawi man now deceased. She subsequently married F Bin Sali who was a Bardi man (now deceased). She had seven children, H Angus (now deceased), Maureen Angus (Gidawanjun), Vincent Angus (Agimo), Agnes Angus (Nurdangur) and Tracey Bin Sali (Gurrbi). She also had daughters who have subsequently died. She gave evidence on days 7, 14, 16 and 20 of the first trial.

358 On the first day of her evidence, day 7, at One Arm Point hall, Mrs Bin Sali said she was born in Bulgin. This is within an area called Ngulunarda. She went to school at Lombadina when she was about 9 or 10 years of age and left when she was 16 or 17. After she left school she lived and worked at Lombadina for many years. She was about 24 when she married her first husband in about 1950. She married her second husband in 1967. Her first husband’s country is Bilinybiliny on Sunday Island. It is Bardi and Jawi country. Her husband was a Jawi man. Her boys H Angus and Vincent were living at Galan.

359 When first married Mrs Bin Sali lived in Lombadina. She visited the country around One Arm Point in later years. After she was married she used to go around ‘in Bulgin way’ where she was born. Her father had Bulgin and Mardud country. She used to visit Mardud as a young girl all the time during holidays from school. She would walk there every three or four weeks after she was married at Lombadina. She lived at One Arm Point from 1976 when construction of the settlement was underway. She would go to Mardud from One Arm Point for weekends. Mardud is in Gularrgon. Gularrgon means ‘he belongs to that part of the country’. It comes from Cape Leveque or Swan Point.

360 Mrs Bin Sali and her husband have a big block at Mardnan. There are about three buildings there which have been there for a couple of years. Before they were erected her family had shelters there. They used paperbark to make their own humpies. The word baali (used to refer to a shelter) means making ‘a little shade outside’.

361 At the time of giving her evidence she was living with her husband in Mardnan. That was her husband’s country. As his wife she had to be there. The Bardi word gurririny describes the connection with her husband’s country. Her mother, Margind, had country on the Swan Point side, at Barinybarr.

362 The children of her first marriage were Jawi from their father’s side. His country was Bilinybiliny, the country of all her children. Her daughter, Elsa, has children - Joseph, Rosanna, Rohanna, Joshua and Bernadette. They live variously at One Arm Point, Broome and Darwin. They all go by their mother’s side for country. That is because they don’t know where their father’s country is. If you don’t know where the father’s country is, you can take your mother’s country. Elsa’s country is Bilinybiliny. Another of her daughters, Maureen, has children, Colleen, Jason and Jasman. Colleen’s father was not a Bardi. She takes her mother’s country.

363 Mrs Bin Sali was recalled to give evidence on day 14 at the Mardnan outstation which is in her husband’s country. The area had been established as an outstation for 10 or 11 years. There was dugong meat hanging from a line. It was salted to prevent it getting ‘wasted’. Her parents and other old people had salted dugong. The salt is obtained from rocks. The Bardi word for dugong is odorr. The word for turtle is gulil. Mrs Bin Sali had been out on a dugong hunt. The dugong was killed with a harpoon. It was wrestled up and subdued with a couple of big sticks. When she went on the hunt she went in a dinghy. She had seen a galwa. Her brother made one in Bulgin Creek. She had never been on a galwa herself.

364 She spoke of the bush foods that could be eaten in the Pindan or Nimidiman area. She mentioned marrul‘ a little green one’ which hangs from a tree. This was presumably a reference to a berry. Jungun is a red fruit. Ingirr is seldom found. Gulmi is a black fruit which comes from a tree. Goorji is a little red fruit. Gamerun is a fruit that grows on a bush. The general sharing of the Nimidiman or Pindan area was restated. The things that could be obtained from the Pindan area included bush honey (munga). There are animals in the Pindan, including lizards , kangaroos (burru) and dingos (gurid).

365 She spoke about umban. ‘Umban is when you get water from the salt water.’ This reflected the usage of ‘umban’ to name a source of fresh water in the intertidal zone. Ungur is another water source. There used to be a time when water could be got from trees. However Mrs Bin Sali said:

‘This time we don’t bother about it. ... Because we can’t find it, you know.’

The tree was called a Ular tree. Principal water sources were ‘anywhere in bush’. Bidiny, is a word for water coming out of the ground and on the coast.

366 Mrs Bin Sali gave further evidence on day 16 (22 June 2001) at Juwinan (site 69) on the eastern side of Cape Leveque. She could not remember the name of the reef nearby. She was asked the name of some nearby islands. She mentioned Ambarrngani (Leveque Island). Between the Cape and the Island there is a rock. People used to sit on the rock and wait for turtle to come. Sometimes they would swim for it and grab the turtle. People would do that at Laliny time – the hot weather time and the time for married turtle. She referred to the lighthouse area (site 68) as Nimanungu. This is referred to on the location and site map as Nimanburrgun.

367 The country in which she was giving her evidence was Willy Judbur’s country. He was the last person. He had left the place. Mrs Bin Sali took it over for her brother. In cross-examination by the Commonwealth, she said that she looked after it now ‘because I’m the only one here – this part of the – I own this country from my ... yes. After my brother.’ She had to look after it because there was nobody else doing anything about that part of the country. She grew up there and it was part of her land. It was put to her that it was not her ‘real country’. She said:

‘No. But its my land from my people, from relative from Swan Point around over here.’

She was a Gularrgon person which was why she had to look after it.

368 At Guljaman (site 67) on the same day, Mrs Bin Sali pointed to a reef called Jihmulla, which is quite a way off shore. It is possible to walk to the reef when the tide is out. It is a good fishing place. Another fishing place is Mungurr. It is not owned by anyone and anyone can fish there if they want to. It is part of Guljamanburu. She pointed to shells and rocks on Guljaman Hill. The old people used to cook their turtle up there and so did she. She gave further evidence at Guljaman behind the hill. She liked to look at a particular tree because her son was born there. There were two trees, one with a light leaf and the other with a dark leaf. The dark leafed tree is called Gulnyji. Her son, Hamlet, was born there. He is also known as Danggan. A lot of people lived at Guljaman during the war. Many of them came from Sunday Island.

369 Mrs Bin Sali’s next evidence on day 16 was taken at Ngulungarda (site 65). This is around the bay to the north-east of Cape Leveque and a little inland. On the way the Court and the witness passed an outstation called Midlaun, which Mrs Bin Sali’s brother had set up. He died about five years previously. Midalun is in Mardudburu. There is a large Moreton Bay Fig at the site which has the Bardi name Albay. Mrs Bin Sali has lived there many times. She said, ‘This is my country. I was born on that marsh there.’ People called Hunter had a connection with the area. They had lived under the tree. They used to call the place Bulgin, which comes from Harry Hunter. He was a white man who had come from England. There is a cemetery about 100 metres from where they were sitting where Harry Hunter is buried. She pointed to a root hanging from the branches of the Albay tree which can be woven into something like hair and also made into beads.

370 There is a place to the east of Ngulungarda called Garndalayn where there is a waterhole or bidiny. She used that waterhole when living there. Everybody used that water. There was a Pandanus or Idul tree with some reddish orange nuts growing in the vicinity. The nuts are known as gaamba.

371 Mrs Bin Sali had a number of brothers but most of them have died. She has one surviving brother, her stepbrother Ernie Gregory. Her brother, the late Mr SandyPaddy, set up the Midalun outstation. In re-examination she agreed that Midalun is part of the Mardudburu.

372 Mrs Bin Sali was recalled shortly afterwards at BudnanyGirrgun, near the shoreline of Hunter Creek and a little inland of Ngulungarda. She was born in the centre of the marsh at which they were standing. She called the location ‘Ganinygunjin’ (site 64). Her birthplace was in an intertidal zone.

373 The next site at which Mrs Bin Sali gave evidence was Mardud (site 61). It was on a rise overlooking Hunter Creek or Bulgin Creek. She described it as her father’s country and her grandfather’s country and said that ‘we all belong to here’. She has been there very often herself and lived there with her parents in that place. After her father died, when she was five, she was taken to Djarindjin but still used to come back up to Mardud. She has camped there since that time. She camped there a couple of years earlier, on the side of the creek to the north-west where there were some pandanus trees. That was on the south-west bank at the mouth of Hunter Creek. There were fish to eat and oysters and crabs to be obtained from the water. She used to fish there with lines and used barnjut. Barnjut could be obtained from Borlk. There was an umban or a soak associated with the creek. The water was salty. However if it were dug up it would yield fresh water. She also spoke of Jarrayn-Jarrayn or deep water and said:

‘It belong to all the Bardi people. Want to passing through here they go through there...’

Jarrayn by itself refers to deep water. She said that the beach belongs to ‘we mob peoples’. It belonged to her as well. The name of the beach is Guda. There is a reef out from it, called Marnayny-Marnayny, which means reef. There is a site called Rarrmalinyan (site 25) to the north. There is a big well there. If they need water they dig it. It is a sort of bidiny. It is part of Mardudbur. Guda beach is also part of Mardudbur as is Guda Reef.

374 Gamelid for the country where she was standing were herself, her niece and her nephew. Eric Hunter had an outstation at Garrigunul (site 62) but does not belong to that country. It is Mrs Bin Sali’s place. However she asked Eric if he could look after the place for her because she had to move and follow her husband to Mardnan. Mrs Bin Sali’s mother’s country is Gadiman, which was to the east of the location at which she was then standing.

375 Although she has heard people talk about a raya she has none herself. Other people must have raya. People talk about their raya but, speaking for herself, she said ‘I don’t know’. She also referred to the term marryun amburiny as referring to people from other parts and not part of the Bardi and Jawi peoples. Basically they are people that she doesn’t know. People could ask to come on country at an office at One Arm Point. She was the only senior person for the country.

376 There was brief mention of the lululu or shark. The Luwardarny is the name for the sandbar across part of the mouth of the river.

377 Mrs Bin Sali gave evidence at Barrinybarr (site 27). That country is not part of Mardudbur. It is part of the Barinybarrburu. She gave evidence at Gadiman (site 26) and told a story about the place involving turtles and a shark and a sea eagle.

378 Mrs Bin Sali’s last evidence was given on day 20 (28 June 2001) at Gulbun. She had seen the place herself recently. Gulbun belongs to Anna Maria from this country. This was evidently a reference to Anna Phillips (now deceased). Mrs Bin Sali mentioned a number of names and places in her evidence. She spoke of Imbalgun at Bells Point on Pender Bay. Asked if any people belonged to it she said:

‘yes, they got a lot of people there living now.’

The Albert boys belong to Ngiling country. The people at Bells Point are Bardi. Asked why she was talking for her father’s country she said that it was because she knows everybody in that part of the country.

379 One area of importance in Mrs Bin Sali’s evidence related to the south-east boundary of the Bardi country. She spoke of Garramal which is a place at Cunningham Point and part of what is said to be Garramalburu. Asked to whom it belonged, she said:

‘Oh, the people all dead. No-one alive for that country.’

An old man called Lawrence was looking after it. Asked whether the people for Garramal were Nimanbur people, she said:

‘Only them lot of just kids over there.’

Before the Nimanbur people there were Bardi people. Mr J Rock had given Garramal to Alphonse bin Omar. She agreed however that Garramal was Jerome Monardo’s place and that he was a Nimanbur man. She claimed that Garrmal was Bardi country. She also said that following the coast around Cunningham Point to the south would lead to Nimanbur country.

380 In cross-examination by the State Mrs Bin Sali said she was the senior law woman for Bardi. Her daughter was going to be taking over. Other women would help her daughter. They included M Coomerang and Elaine James. Patsy Ah Choo was also mentioned.

(xvi) F Bin Sali (deceased)

381 Mr F Bin Sali (now deceased) was born on 25 December 1923 at Bidawun. His father was Locki Bin Sali, also known as Nimangananbur, who died in 1986. His father was the man who reared him and some of his father’s grandchildren. His country was Mardnan. His father’s father was Malayan but his father was brought up by a Bardi man. His mother was Mary, known as Lennie, a Jawi woman. His buru was Mardnan buru and he resided at Mardnan outstation at One Arm Point. He was married to Rosie, known as Marnung, formerly Rosie Angus. He had a daughter Tracey Bin Sali, also known as Gurrbi. He was a Bardi man. He gave evidence on days 7 and 14 of the first trial. His evidence on day 7 (15 May 2001) was given at the One Arm Point hall.

382 Mr F Bin Sali’s bush name was his grandfather’s name. He was born in Bidawun which is at Galan. The name Galan is a Bardi name. As a young boy he lived at Bidawun with his parents and his grandparents. When he reached school age he was taken to Lombadina. His parents moved to Lombadina at the same time. He stayed at school until he was 15. While a student he would walk back to Mardnan with his parents. On the way they would pick up bush fruit and things.

383 When he left school Mr Bin Sali went to Broome for about a year where he worked on the pearling boats. When the boat he worked on was laid up he would come back to Mardnan where he just fished and made camps and shades. When he went fishing he would go to Jurdun. That is Marlaring Point. He would fish in various ways using a line or spear or barnjut. He obtained the barnjut from Borlk on the Pender Bay side. He would also go fishing at Mardnan Point. At the time of giving evidence he had lived at One Arm Point for about two years.

384 He saw Bardi and Jawi country as mixed. His mother came from Ralral Island in the Jawi country. Sunday Island was Jawi mixed with Bardi. There were people on the island who were Bardi and Jawi, people from Bilinybiliny and all around there and Gularrgon. Jayirri or Jackson Island was an island for Bardi people. He did not know if it was mixed. He thought so. He thought it should be. Asked why he said it should be mixed, he said:

‘Well Bardi and Jawi was all together.’

They were all together as far as he could remember. He was asked by the Commonwealth whether, when he was young, old people told him that Bardi and Jawi were two different people. He said:

‘Yes, different ways, yes.’

He agreed that they had different ways. Asked about the situation today he said, ‘No, you haven’t got that much Jawi probably.’ He himself was mixed. His mother was Jawi and his father was Bardi. That is why he said he was mixed.

385 He had heard of Julinabur (Brue Reef) and knew of a story about Jul did not know much of that story. Somebody told it to him once but he couldn’t tell it because he didn’t know it properly.

386 On day 14 (20 June 2001), Mr Bin Sali gave evidence on the beach at Mardnan. To the north-east was a hill which he identified as Jangalal where his grandfather was born. There were trees on the hill and a camping area around them. He and his family used to camp there. He pointed to two upright sticks south-east about 50 metres from the location at which he was giving his evidence, saying ‘That’s where I put my things up before’. He had put the sticks up about 17 years before. Looking south-west beyond Mardnan he identified Bayangan. That was the Bayanganburu. It belonged to his cousins. He used the expression ‘cousin mob’. He pointed south-south-west in the direction of Miligun. The boundary between Miligun and Mardnan was a little creek which he pointed out. There was a camping area there.

387 At Jirrarmilong (or Skeleton Point) he gave his evidence on a rise just above the beach. He didn’t know much about it beyond the fact that it was there. He had been fishing there. There was a beach to the south-west of Jirrarmilong which he identified as Jangalal. When looking east there was a point which he named Jimaron. Each of these places which he named was his place. Looking seawards to the south-east he identified Kumbununggunan, a place which is part of Mardnan. There was rough sea there and whirlpools and swirling water. It was not a deep water place. Sometimes with spring tides the sandbank was exposed.

388 Marrgun, where he next gave evidence, was where his grandfather, Galiwu, had died. His skull was just over the hill in a north-east direction. That was how deceased people were interred in the old days. As he was giving evidence he and the Court were sitting under a baali erected by Percy Shadforth who was deceased. The place was visited by F Bin Sali and his grandchildren and everybody. The fishing and the hunting and the water was for everybody. It was part of his buru.

389 Gula (site 75) was the next place at which he gave evidence. He spoke of the Pindan or Nimidiman and said:

‘It’s a pindana call him.’

And further:

Pindana that means for everybody – place, you know, pindana.’

He seemed to be referring to its extent:

‘It goes right up this place you look where mangrove stop. I forgot his name.’

Then he remembered he was referring to Garrambany. He said:

‘You see right up to Miligun side.

...

Half/half right around in the middle. Bulngurru they call it.’

Pointing north he said:

‘That Bulngurru pindana they call him.’

He was referring to the Nimidiman. He then pointed out Miligun and Mardnan. Lombadina and Djarindjin were to the west.

390 Mr F Bin Sali had last been across the Pindan country a couple of years before. He couldn’t do it on foot because he had been in hospital. He used to walk across a long time ago, nearly two years past. There was plenty of bush tucker between Galan and Djarindjin. He identified berry and root bush tucker. He had been walking all around the bush with his parents and his grandfather. There was however nothing particularly special about the location at which they stopped.

391 Mr F Bin Sali’s evidence-in-chief resumed at Galan on the edge of a salt marsh. The area was named Galan by a named called Harry O’Grady. The Bardi name is Mardnan.

392 The Court next stopped on a road opposite a law ground. Mr Bin Sali pointed to the law ground. It was in a southerly direction. No women were allowed to go in there. There were Bardi words that described that prohibition – Urany arra arruliya ululung-gun-buru.

393 The next stop was at Bidawun (site 79). Mr Bin Sali pointed to a tree and said that that was where he was born. He explained about raya. The raya was ‘the little kid’. He had a raya. The raya came to him. It came to him from burrali. Mr Bin Sali was asked about his barnman. One of his barnman was the python. The Bardi name for the python was Miyalurr. There was another snake, a one-eyed snake, called Ulgudany. Mr Bin Sali’s raya came from the hill, Burrali. Before he was here as a man on country he was a snake.

394 Mr Bin Sali’s only one sister was Khaki’s wife (now deceased). Her country was Daan at Mardnan Point, part of Mardnan. She lived at One Arm Point. Her husband Khaki was his brother-in-law, and Khaki’s country is at Nilagun on Sunday Island. The word gurirriny means:

‘That’s gurirriny my wife well he come to my place that’s gurirriny, that’s me.’

Mardnan country is gurirriny for his wife. Mr Bin Sali had his mother’s country, Ningarlm, in his case Ralral Island. It is a Bardi island mixed with Jawi.

395 Cross-examined by counsel for the Commonwealth, Mr Bin Sali said that Jawi country starts from Ralral Iwanyi. When he was young the old people told him that Sunday Island was Bardi and Jawi mixed. Jayirri was also Bardi and Jawi mixed. The same was true of Jalan Island. Counsel for the Commonwealth endeavoured to press Mr Bin Sali with the proposition that Bardi and Jawi were distinct groups in the old days. The following exchange took place:

‘Mr Pettit: I want you to try and think about when you were young fella and the old people back then were telling you about Bardi country.

Freddy Bin Sali: Mm

Mr Pettit: Did they tell you that Sunday Island was Bardi and Jawi?

F Bin Sali: Yes. Yes, Bardi Jawi mix with all them grand – grandfathers, they were Jawi too.

Mr Pettit: What about a long long time ago. Was it Jawi or Bardi ...

F Bin Sali: Yes, Jawi.

Mr Pettit: Long time ago?

F Bin Sali: Yes.

Mr Pettit: And not Bardi?

F Bin Sali: No. Bardi was there and Jawi, mix you know after ...

Mr Pettit: Always mixed?

F Bin Sali: Yes,

Mr Pettit: You think they’ve always been mixed?

F Bin Sali: Yes.’

In re-examination he was referred to Inalangburu Bardi and spoke of ‘All the them Inalong mob’. He identified as part of the Inalang mob Albert Lennard and Jimmy Ejai. Their country was Jayirri (Jackson Island). Inalang means ‘... they stop in island country’.

396 Further evidence was taken at Linggan (site 80). Asked who it belonged to, F Bin Sali said ‘it belongs to everybody’. It was part of Mardnan. At Burrali (site 78) he stood pointing north-east to a rock hill called Burrali. There was good water under the rock. It was not an umban. It was ungur which meant under rock. The water was always there. Mr Bin Sali had named his dog, Burrali, after the site.

397 He talked about ochre. White ochre or maangga is at Ngulon (site 76). Maangga was used by the people to paint themselves for dancing. It came out white.

398 The final site was Unday (site 77). At Unday Mr Bin Sali said there was an ilma for Burrali but he could not sing it as his throat was no good. Unday was part of Mardnanbur. It belonged to Maryanne Doyle’s mob. Mr Bin Sali indicated generally the extent of Mardnanbur from where he was standing. At one stage he pointed to a tree which he said belonged to Maryanne Doyle. That was her barnman. He said:

‘You can’t skin it or something or break the branch or something like that.’

If somebody did that she would lose her hair and get sick.

(xvii) Khaki’s wife

399 Khaki’s wife (who is now deceased) was born in 1930 at Malumbu. Her father’s country is Mardnan which comes to him from his father, Nayp. She visited Mardnan with her father when she was a child. Her mother’s country was Ralral Bulnginy. When she was nine her father went to war so he took her to Lombadina for school where she stayed for four to six years. She then moved to Broome with Mr Stumpagee where they brought up their six children. She returned to Sunday Island and remained there for a short period of time and then moved to Derby where she lived from 1961 to 1971. In 1971 she returned to Nilagun in Guwarngin country on Sunday Island. There was no employment and they lived on fish and collected clamshells. They used spinifex to make small houses for shelter. The Bardi word for shelter was ‘baali’. In 1972 she moved to Jologong near the airport.

400 She was on Sunday Island when the mission closed. At the time there were Bardi, Jawi, Mayala, Mowanjum, Umide and Worrorra people on the Island. No Nyulnyul people had been on Sunday Island. She identified Sunday Island as Jawi. When asked about Jalan Island and Jayirri she said:

‘Jawi start from Ralral, Bulnginy, all island right up to Iwanyi. Right up to Iwanyi’.

401 She had heard of Brue Reef and knew of a story that Jul lived there with his children. She said that Jul had no relation to Bardi people. He might be Jawi or Ululung. When asked where Khaki Stumpagee was born she said Guwarngun at Nilagun on Sunday Island.

(xviii)D Davey Senior (deceased)

402 D Davey Senior (now deceased) was a Bardi man. His country was Ardiolon which he took from his paternal grandfather. He was born on Sunday Island. His father was Alfie Davey, known as Dargul. His father’s buru was Gunundu buru. His mother was Maggie Ah Choo. She was a Nyikina woman from Derby. He was married to Irene Hunter. They have five children, each of which has a bush name. He lived at One Arm Point. He gave evidence on days 7, 12, 19 and 21 of the first trial and days 31 and 33 of the second trial.

403 D Davey Senior was born on 21 September 1942. As a boy he lived at Sunday Island and went to school there. He finished school at age 16 and went to Derby looking for work. He stayed at Derby for 15 to 20 years. He used to come back to the Cape Leveque area during his holidays. When the mission closed down on Sunday Island and everybody started moving away he used to go to Cygnet Bay to the old Dean Brown place. He also went to Jayirri, Ralral and Iwanyi. His parents came to Derby in the sixties. They had to bring his young brothers and sisters there for school. They returned to the Cape Leveque/One Arm Point area in the seventies. He was back and forward during this time. He worked for Main Roads and the Public Works Department. He returned to One Arm Point in the 1980s and had been living there for about 20 years. At the time of his return projects had started which meant that people got housing from the government. He remembered Mr Drysdale who was in Bulnginy and went over to Sunday Island with other people. They came back after a month or so. They asked the government for funding but that was refused because the island was too isolated and there was no road or flying doctor access. D Davey Senior said:

‘So – so we told Drysdale and the Bardi people to come and settle in the mainland, around here, where they can have access to roads and things. That’s how it came about.’

Even when he had been at Derby, D Davey Senior said he didn’t leave the place altogether. He said:

‘We still had to visit the place, because of our lifestyle. We used to miss fish, turtle and things and every holidays when we had a chance we had to come – come and have holiday here.’

404 D Davey’s Senior brother had an outstation at Gambarnan.

405 D Davey Senior had participated in a lot of ceremonies. He was in an initiation ceremony at Sunday Island before he was married. Since he married he had taken part in many ceremonies and continued to do so. He spoke of the ceremonial or law grounds on the Peninsula. The persons responsible for those ceremonial places were ‘all the madjamadjin. All the bosses’. He had no duty to look after law grounds not in Ardiolon unless the madjamadjin from another area invited him. They were the bosses from that area. He did not take part in ceremonies in Derby because the people there were ‘a different tribe’. He said that he and others practised the traditional ceremony all the time. They had never even left it for a year.

406 D Davey Senior explained the relationship rules of jandu and inara. He said they were the only two skins that Bardi knew. Other tribes had five or six skins but Bardi and Jawi only had inara and jandu. You had to marry jandu. Not a close sister or brother. It must be a distant cousin or your grandmother’s family. He had married his jandu. Her country was Bulnginy.

407 He described the different areas of Bardi country. He named Inalabulu Bardi, Ardiol Bardi, Gularrgon Bardi, Olonggon Bardi, Banararr Bardi and Baniol Bardi. Gularrgon Bardi is right down the end in Beagle Bay. A general locations sketch map (X-M) which showed the sequence of regional aggregations and locations of which he was speaking was admitted by reference only to his evidence.

408 D Davey Senior spoke of raya which he described as ‘... like a fairy, you know spirit kids’. He said:

‘They choose their own person. They come from nowhere and just go to that person and he’s the only one got contact with that raya. They can save – save him from danger, protect him, they can let him know there’s a danger, and after a while, if that guy, that person – that bloke is a married guy and his raya want to come in the real world, conceive in – in his wife or in his sweetheart, or whatever you call it, his straight one, and he comes out in real life, if he get tired of being a raya.’

Rayas were connected with country and/or water. If you went to another person’s country you might pick up raya from there. Asked whether raya could select a man who was visiting a different country. D Davey Senior said:

‘Yes. He can go – if you go – well, for example, I went croc shooting with a boat and my – my first raya came to me on board, and from the other country, up north.’

The child would not be an owner of the country from which the raya came but the raya would have some sort of rights. People from the other place could give him rights to visit the area.

409 D Davey Senior also explained the term gurirriny which relates to rights acquired by marriage. His gurirriny was Bulgin because his wife came from there. Gurirriny worked in two directions, ‘It’s reverse, you know? Vice versa.’

410 The term nimalj referred to a personal right to keep parts of the turtle and the dugong and fruits of the bush. He received nimalj from his godsons or jawul. He explained the jawul relationship. He explained the riji as a pearl shell bearing a certain design. Riji had to be in one family. Each family had different riji designs. The riji stayed in the family line and passed on from generation to generation. It was used for chanting the name of young boys going through initiation ceremonies before they get the red ochre. The design on the riji would enable people to recognise which country the family bearing it comes from.

411 The word galwa came from the islands, from his mother’s side. He had seen a galwa but he could not build one. As a child he had been on one with his father. Everybody had a galwa but it was traded from the Mayala people. It might be traded for bush fruits or pearl shell but people he knew of who could build galwa included the Jalan ‘mob’, some from Galan at Mardnan. He had no galwa.

412 He spoke of the different coloured ochres used for ceremonial purposes and where they could be found. The only ochre he had in his country was white ochre, birrngaliny. He would give people white ochre if they asked for it. He had given white ochre to most of the One Arm Point people as long as they asked him. He told them where to pick it up. Nobody could dig up the ochre from Albay Island except himself.

413 D Davey Senior did a lot of fishing using spear guns and fishing lines. He also used to fish using the mayurr and unduk. Unduk involved going out at night with a lighted torch in the pools. He also referred to the fish drug ilngamu.

414 D Davey Senior gave evidence at Julbany (site 52) at the end of One Arm Point. He identified Gambarnan (site 37) to the north-west. He indicated the direction of Barinybarr which he said had a non-Aboriginal name of Nelly Point. He identified Bawurd and Gardiyn also known as Swan Island. He pointed west to smoke from Lalanan and further in Marraljinan. All of the area from Marraljinan back to where he was standing was part of Ardiolon. Looking north he identified a current called Iwalajalajala that is dangerous in the evening tide. There were a lot of whirlpools there. The current known as Iwalajal lu belongs to Ardiolon. He said it was really called Ardiolon lu. The sea country out past that lu belonged to Jayirriburu.

415 The next site was Jindirron (site 53). It was described as his father’s grandfather’s camp. He identified the location by reference to a crab apple tree or ilarr. It was a seasonal camp used in lalin time. That was the mating season for turtles. His father’s grandfather was called Bumba. The ilarr tree was a fruit tree. Its leaves were used in cooking turtle in the ground. Alternatively, baal or paperbark was used as it has a bigger leaf. The term baal was a shortened way of saying baali which referred to paperbark. Baali were bough sheds. It might also be referred to other things such as the hair belt with pearl shells. The meaning it conveyed depended on the context in which it was used.

416 D Davey Senior again identified Ardiolon lu. However the main purpose of visiting the site was to show where Bumba was buried in the rocks. Bumba, he said, had built a raft which was in the rocks.

417 D Davey Senior next gave evidence at Injololon (site 57) on the beach. There was a fresh water stream running through it which ended up in the ocean. Where it ended there were white caps and there was a hole. Pearlers from Broome sometimes got caught in the hole. There was no bottom to it. They would run out of life line and pipe and had to be brought up with the bends, paralysed because they had entered into a sacred area. The hole was about a kilometre offshore.

418 In cross-examination by the Commonwealth, D Davey Senior described the hole under the sea as ‘like a bottomless pit or something’. Asked how he knew the fresh water came out at that point, he said:

‘Well, it’s very hard for you to understand. It’s the spirit man, like you know witchdoctor. In their dream they go, visit there and see the well. They tell us, us ordinary people, there’s a well up, that line is going – like say like technologies, that where the oil runs in a stream. It’s like them, just like that.’

They never used the fresh water that came out in the ocean. The hole was a dangerous place for strangers. He and his brothers could go and dive there and nothing would happen to them. But the place did not recognise strangers:

‘... if you a stranger, if the land don’t recognise you, something happens to you.’

419 In cross-examination by counsel for WAFIC D Davey Senior said that the incidents involving the pearl divers were in the forties or fifties. The pearling boats would come from Broome through the passage between One Arm Point and Sunday Island. They were on their way to Cygnet Bay. About 30 or 40 of them used to anchor every morning and then go diving. They frequently went to Luggers Cove in Cygnet Bay. The boats would ‘camp’ there and in the morning leave. When the pearling boats went out again they would head back to Broome. They would do most of their diving around the Broome area and then in the four months before Christmas, August to November, they would come around to One Arm Point and then before November would go back.

420 D Davey Senior’s grandfather’s younger brother was buried in some rocks which he pointed out. That was where the Ardiolon boundary ended. He was pointing south to Baninggun (site 58). He described it as a sacred area in which only men were allowed. It was evidently used for initiation ceremonies. He said:

‘That’s all – that’s irrganj places there. After you have the play for them out there, when you have that anggwuy, then after we move down, they have initiation here and they camped here till the time for them to go out when they have that feast. Then after three or four weeks they go nguril from here.’

421 Speaking of the fresh water and the digging of a well to access it, D Davey Senior said that when he first came from Sunday Island to One Arm Point his father Muju had to come himself with another son, Mervyn, to dig the well:

‘If there was someone else, one of the other family from Mayala or Iwanyi or somewhere else, that well would have been dried, because he wouldn’t have been the right person to touch that area.’

This was a matter of Aboriginal belief and it happened all the time. The underground fresh water was his grandfather’s barnman.

422 D Davey Senior’s next evidence was given on day 12 (18 June 2001) at Juwan Marsh. It could also be called Juwarnan. The Gambarnan buru was to the north-west and the boundary marked by a creek called Juwanan Creek. Trees to the north-east about 100 metres from the site were identified as murnmulu. Old people used to collect their fruit which was like an olive. They would be buried in the marsh and after a couple of days would turn purple and were ready to eat. Other trees to the south-west were good for bush honey or munga. D Davey Senior said:

‘People used to walk along here, see the little bit hollow in there and then they used to cut it open without damaging the tree, they just split it open and then get the honey out.’

423 Counsel for the State asked D Davey Senior about the border of Ardiol buru. He said:

‘It starts from the creek to Baninggun.’

Where rocks come down to the beach where they were on the previous occasion is for Ardiol. That was the southern boundary for Ardiol. On the other side of the creek which bordered Gambarnanbur was part of Lirrimarr. In re-examination D Davey Senior said that when he was speaking about Ardiol he was talking about an area, a whole area. Gambarnanbur was part of Ardiol.

424 D Davey Senior’s next evidence was given on day 19 (27 June 2001) at Brue Reef. He explained the derivation of the name Juljinabur. It referred to fish but the old men believed that Jul was a human being. Juljinabur was a reference to Jul’s place. The reef was in very deep water, known as jarrayn-jarrayn. There was a song about jarrayn-jarrayn. The song was sung when losing sight of the land and going to the jarrayn outside, out in the big water. D Davey Senior sang a little in the language.

425 The main reason to go to Brue Reef in the boats was for angirr or trochus shell. It was not done very often but once in a while when more shells were needed they would go out there. The trochus shell was part of the peoples’ living. They used to pick it up and sell it to gardiyas (white people). The meat of the trochus is edible. The old people used to eat it and loved the meat. Nowadays the shells would be taken back home and boiled for a couple of hours. The meat would be knocked out. Some of the shells were polished. Some were sold raw to the markets.

426 D Davey Senior was asked about the ownership of the deep water:

‘Q. Now, that jarrayn-jarrayn that you spoke about before, does that belong to anybody?

A. Belong to no one.’

He explained that there was a song for jarrayn-jarrayn because:

‘... of that old bloke, that gave us the songs, that came back to Uncle Billy when – when he drifted out on the rock. That’s something should we come on later but he was lost. He drifted out here and he say it in his song, “I been – I been out in jarrayn-jarrayn”. That’s why – where he got his song.’

The person to whom the song in the story was given, was Billy Ah Choo. He passed the song on to D Davey Senior and his brothers. He explained in cross-examination that the person who had drifted out there was Little Wiggan. He was Uncle Billy’s nephew. The incident occurred 50 or 60 years ago.

427 In cross-examination by the Commonwealth he said that trochus shell could be found on the mainland near One Arm Point but it was now very scarce because too many people are selling it. However, when he was a very small boy he came out to Brue Reef on the mission boat. The old people used to give trochus shell to people connected with the mission. The missionaries used to bag the shell up and take it into Derby. They didn’t say what they were doing with it. He assumed they were selling it somewhere.

428 Later on the same day at Juwarnan D Davey Senior was recalled. He was asked about a place called Ngardnganarr on the north side of Brue Reef where a photograph had been taken earlier during the boat trip. He said that Ngardnganarr was a special place for the Munjanggid for fishing. It was like a lagoon. They used to bring the fish right up to the shallow water where they could catch them easily.

429 On day 21 (29 June 2001) D Davey Senior gave evidence at Jologo Beach. His evidence was given jointly with Frank Davey as a commentary on an ilma or public corroboree. The ilma was created by their uncle, Billy Ah Choo after it was revealed to him in a dream by his uncle, Little Wiggan. The ilma was about the life, travels, exploits, death and activities after death of Little Wiggan who was a Bardi leader. The first performance was a ‘bardak’ or warm up before the dance. It was presented as a song. It was about the deep water. A dance called ‘Ilma Garril’ was then performed. The garril was a reference to birds called turns. There followed another bardak called ‘Wiyarr’. Wiyarr was a reference to lightning flashes. The ilma that followed wiyarr was called Nawarnarda. When Little Wiggan was out in the ocean he could see the lightning and the building of the storm. It was raining a long way in the distance. He was on a galwa. The young men who performed Nawarnarda held totems representing rain clouds and lightning. They wore pearl shell as part of their costume. The Bardi word for that pearl shell was barlibun.

430 There followed a further bardak called Dambi-dambi. This was a reference to an umban or soak. When the raya brought Little Wiggan to Sunday Island they tried to give him water because he was thirsty but it was mixed with salt water so it was dambi-dambi because it was bitter. The ilma Ngarnan followed the bardak dambi-dambi. It was about how Little Wiggan being out to the sea for so long had some memory loss and didn’t know where he was going. The ilma represented him walking all over the place looking for his home. The dancer held a walking stick totem.

431 The next bardak was called jididi. It was about the whirlpool. The next ilma was nimananungu. It referred to a dangerous shark nesting place. The ilmas being held by the dancer represented the shark. Another bardak, Jindirribalgun, followed. That was about the whirlpool in Sunday Strait. The ilma after it was Naljurur. It depicted the breaking up of the galwu. Little Wiggan had been at sea for about 48 hours and the rope holding the raft together was getting loose. The raft was coming apart because they are made in two pieces. The totems used in this ilma also showed the two pieces of raft.

432 D Davey Senior next gave evidence on day 31 at the second trial (30 June 2003) at the Catholic Healing Centre in Broome. He was accompanied when giving his evidence by his wife and 2 sons, Jeffrey and Russell. Certain parts of the statement of the substance of his evidence were read into the record without objection. The review of his evidence that follows incorporates reference to the contents of that statement.

433 The Law bosses speak for the Law grounds. The top man was the caretaker of each particular place. His responsibility was to make sure no one went there. But that was everyone’s responsibility. On his country he was responsible for all the sacred places. If something went wrong with the Law grounds at Ngamagun he had to look into it. He had to know and talk to the boss men. The boss of a buru could not stop him from going and seeing if something was wrong in a Law ground in that bosses country. He would send word to him first, but that boss could not stop him from coming down. He would not be going to the outside area but to the Law ground. He said:

‘It’s everyone’s law. It’s the same with the sacred places. Every Law man has the right to go there.’

434 He used to go fishing in his country on Sunday Island way right up to the Mayala Jawi area. He fished for everything seasonally. This included bluebone, turtle, dugong, stingray, shellfish and anything he could eat. The same was true when he was little.

435 D Davey Senior’s grandparents didn’t have a galwa at One Arm Point but he saw galwa at Mardnan a long time ago when he was a little boy. There were galwa also at Baniol and Bulgin where the mangroves grow. He saw a galwa at Bulgin with old Mr Paddy who had made it himself. He saw his own father make a galwa on Sunday Island. He knew how to make one too. His father taught him.

436 He spoke again of the jarndu and inar relationships governing marriage. He added that jandu could not be jawul. His mother’s brother could be madja to his son. He could not himself be madja to his son. The madja had a responsibility to put the boys through the law. It was part of the madja’s responsibility to find a jarndu to paint the boy up. There was a very strong relationship between madja and jawul. If a madja passed away then his brothers would take over and they would be responsible for the boy. They would put him through the law and put him through marriage to make sure he doesn’t go wrong. Sons would help the madja if the madja were too old. Madja and jawul were very important to the tribe. When the sons had gone through law in the old days they would stay with their jawul. The madja was responsible but if you found a wife you would go back to your own country. When the jawul got the red ochre he left that house. He went back to his country. The jawul had rights from the law in the country where his madja was from. That was not broken down. It was still used in ceremony. The madja would sit with the jawul and was responsible for them.

437 D Davey Senior described a trip by motor vehicle on 11 June 2003 with officers of the Kimberley Land Council and three locations on that trip which was along the One Arm Point Road.

Location 17 - this was the boundary between Ardiol buru to the north and the shared country with the Cygnet Bay mob, the Banarra or eastern mob, to the south. The boundary is marked by rocks called gararrindi which act like a sign. D Davey Senior knew this from being taught about it by his old people.

Location 18 – this place was at the boundary between Ardiol buru to the north and the shared scrub country or burdany. There is a lot of shared bush tucker in the burdany. There is mayala (little goanna), fowl eggs and lizard eggs. It is also an important hiding place for the people from the surrounding buru from cyclones and bad weather and from people such as Daman (assassins from another tribe) and from the police.

Location 19 - this place represents the boundary between Gularrgon and the Banarra and the shared scrub. It is a different type of scrub to the previous location. It is called Bolonggon. It is used for food, shelter and hiding from different people.

438 D Davey Senior was referred to Exhibit AAI which showed all of the claim area from the Jawi Islands down to the southern boundary of the Peninsula in the Bardi area. He said it was Bardi Jawi country. It was one country. The Bardi Jawi people belonged to it. There was only one people. What made them one people was the law, intermarriage, language and culture. There had been much intermarriage between the Bardi and the Jawi. Their languages were similar, everybody understood each other. His sons had the right to live at One Arm Point and Ardiolon. They got that right by law from their grandparents, their grandfather and their father passed down through the generations. The law had been passed down to him. His grandparents and his father told him about it.

439 For a long time people from other burus could not come into his except with permission. It was a matter of his judgment because he was the boss. If a person respected D Davey Senior’s ways and laws and he was a good bloke, well he could stay as long as he liked. If a visitor were to do the wrong thing, then he would be ejected. If the visitor were a Bardi Jawi person he might just come into the buru but D Davey Senior said that if he didn’t know him he would go and ask him what he was doing there. If there were no good reason given, he might well ask him to leave. Ultimately if the man wouldn’t leave then he would be evicted in the traditional way with the help of all the Law men. The right way to ask permission to enter a buru in the old days was to light a fire signal and wait for an answer. Now there were phones to make the same inquiry. If he were going to Sunday Island then as a matter of respect he would notify Khaki Stumpagee first. He had been going to Sunday Island all his life and had never been told that he couldn’t go. Nevertheless he would let Mr Stumpagee know he was coming on to his buru. In the old days it wasit was just up to the person from the relevant country to deal with strangers. The person did not have to speak with other people about it. However they started speaking to other Law men about things when the white men came.

440 D Davey Senior talked about his buru at Ardiolon. He had to look after his law, his culture, his language and his buru and protect it from damage. He could hunt turtles, dugong or anything, shellfish, fish and stingray there. On the land country he could cut boomerangs, spears and make his house and gather food from bush tucker. Bush tucker was very important to his family. So was food from the sea. That was their main diet. It had been that way for generation after generation. He himself was too old to go fishing.

441 The different families and different clans spoke for the different burus in the Bardi and Jawi country. There were about eight clans in the area. Kevin George and his family spoke for the buru at Pender Bay. Mr Sampi spoke for the buru at Ngamagun. The individual burus were all part of Bardi Jawi country and made so by law, intermarriage, language and culture.

442 If anything were to happen in his Law ground at Ardiolon the ground itself was a powerful thing and would look after itself. If somebody had done the wrong thing an Aboriginal Law person had to be called in to look at what they have done. If called in early they might be able to fix things up. If it were discovered that something were wrong and he were absent and could not attend to it, then the other Law men could come on to his buru to look at the Law ground, ‘It’s their Law too. It’s everyone’s law.’ He would not be entitled to say no to them if it were a law matter.

443 D Davey Senior next talked about Nimidiman. Everyone used it. All the Bardi people, the Bardi Jawi people. It did not cover Yawuru or Nyungar. There were materials there for people to get food, boomerangs, shields and spears. It was not necessary to get permission from anyone in a buru to go to Nimidiman country unless approaching the boundary or border of a particular buru. In that event, the owners of the buru were informed of the approach to their boundary. The words ‘Marriuyn amboriny’ meant stranger and that term picked up Yawuru, Nyikina and waybal or white men. Such strangers, if they asked permission, could be given permission to go into Nimidiman country.

444 He spoke about Guljaman buru. There was a Law ground in the buru. But there were no Bardi Jawi families living there. The next door neighbours, like the Gularrgon and Ngamagun people, would speak for Guljaman. Their responsibility under the Law was to look after the Law grounds, the fishing place and the language. Their responsibility was to look after everything there.

445 The term Inabulu was not a reference to a buru. Inalabulu Bardi was another clan, it was the Ejai clan. Gularrgong was another clan and his wife came from there. That area was the Bulgin area right up to Guljaman. He accepted in cross-examination that Nyulnyul people used to have the same Law as Bardi and Jawi and lost the Law. Jabirr Jabirr did not have and never had the same Law. He did not know Goolarabooloo people. It was pointed out to him that One Arm Point was an Aboriginal Reserve. So that if anyone wanted to come and live there they would have to get permission because it is an Aboriginal Reserve. He referred to Jawi people as island people. He said:

‘We class them as island people. Mainland people are Bardi.’

Asked what happened to the Jawi people that had been on Sunday Island he said that they had all died.

446 There was further examination-in-chief by counsel for the applicants shortly after counsel for the Commonwealth began his cross-examination. This was done by leave to clarify the identity of D Davey Senior’s buru. He said that Ardiolon was his buru. He was asked whether there was a name for the bigger northern area past his buru. He said that that is the Ardiolon area. He was asked about the expression ‘Inalabulu’ and about burus in Inalabulu. He mentioned a number of names including Bulunguru, Mardadji and Ulgalgul and said:

‘When you say buru in our language, you guys saying buru is for that place where we claim. You can say buru when you go camping too. When we build a bough shed, no matter we’re not from there, we say that’s our buru.’

Inalabulu is all the islands. He was asked what burus there are in Ardiolon. He said Jirralgul, Galbarrnginy, Julbun, Injololon, Jirral. He was asked whether the buru Ardiolon is one of those. He said:

‘That’s all around.’

447 In further cross-examination by counsel for the Commonwealth D Davey Senior was asked what buru Anna Williams belonged to. Anna Williams belonged to Marraljinan. That was Ardiolon. She was not of the same family as D Davey Senior. Baniol also had buru in it. Baniol were different people. They had their own names. He didn’t know half of them.

448 Cross-examined by counsel for WAFIC, D Davey Senior said that the Nyulnyul people were trying to get their Law back and came up to the Bardi area for Law. They had different language. He could understand it ‘a little bit’. There was intermarriage between the Nyulnyul people and some Bardi people as well.

449 D Davey Senior gave additional evidence relating to Brue Reef, albeit it was subject to objection. This evidence was given on day 33 (2 July 2003). He was familiar with Brue Reef. It was Bardi Jawi country. The people had the right to go fishing there, to look after the reef, to collect shells and turtle and anything else they can collect. All of the people had that right. In the early days his people used to go and collect trochus and fish and whatever they could. There were a lot of stories about Brue Reef. Some parties had gone out there and seen a whale that was stranded on the island. It became a rock. At high tide the reef was not exposed. It was only exposed at low tide. Bardi and Jawi people had been using Brue Reef for the purposes he described ever since he could remember. On mission days when he was living on Sunday Island the men used to go with the mission boat just by sail to collect shell, turtle and fish for the people. Bardi and Jawi had responsibilities for Brue Reef. They were to look after the land and not let any marriuyn amboriny come in to damage the reef or collect shells. The stories associated with Brue Reef were told among Bardi Jawi children today. He regarded it as his responsibility to keep the story alive and to pass it on to his children. Brue Reef was not part of any buru. It can’t be part of a buru because it was a reef. All of the reef was included in Bardi Jawi country.

450 Under cross-examination by the State, he said that the stories about Brue Reef were Jawi stories. He used to go out there collecting shells two or three times a year. It would depend on the tide. Nowadays he would go in a dinghy with an outboard motor. He was referred to earlier evidence he had given about Brue Reef when he said:

‘We don’t do it very often but once in a while we go to Brue Reef.’

He suggested that there had been some difficulty with the question in English. If he had been asked in Bardi he might have given the right answer. He said he did not understand counsel’s language most of the time.

451 Counsel for the Commonwealth also cross-examined D Davey Senior who agreed that he went to Brue Reef to get the shells when he was a bit short of money and would sell the trochus shell to someone in Derby through the Bardi Corporation. His earliest memory of going to Brue Reef was for the same reason, namely to get trochus shells. That was a sailing trip from Sunday Island on a boat owned by the missionaries. Asked by counsel for WAFIC about the length of the trip on the mission boat he said that the boat had to go overnight to get to Brue Reef. It had to wait at Cafferelli, the nearest island. The first time he had gone out there was with the mission boat. When the tide went down there were little pools left on top of the reef and fish were trapped in them. He said he had been told by his old people that he has the right to fish at Brue Reef. The story he had earlier told about Jul and the men who drifted to Brue Reef from Jalan Island and got into trouble is the only story he knew about Brue Reef. He agreed that nobody sat in a line for Brue Reef at initiation ceremonies. He said, ‘it’s not a buru’. It is only a reef, a fishing area. Some of the people from the mission other than Bardi and Jawi people went on the mission boat to Brue Reef. He said they had to work for their living for the missionaries. He was asked if there was any particular person who had an interest in Brue Reef or was it all Bardi and all Jawi. He said it was all Bardi and all Jawi. He was asked if there was anyway that he could know at One Arm Point who was out at Brue Reef. He said he wouldn’t know.

452 In re-examination he was asked about the line in the anggwuy ceremony. He said that nobody sat in a place for the Nimidiman buru. He knew of only one island between the mainland and Brue Reef. That was Cafferelli.

(xix) Irene Mary Davey

453 Irene Mary Davey gave evidence on day 7 (15 May 2001) of the first trial and also day 32 (1 July 2003) during the second trial. The statement of the substance of her evidence was shown to her. It attached some 48 photographs. She said it accurately described what was in the photographs. It was admitted without objection (X-N). There was no cross-examination on her statement.

454 Mrs Davey was born in 1940 at Bulgin Creek and grew up on Sunday Island. She is married to Dennis Davey and they live at One Arm Point. Frank Davey is her brother-in-law. The photographs attached to her original statement of evidence showed people at the old mission site at Iwanyi (Sunday Island). There was a photograph of Aboriginal men in ceremonial dress with red paint taken at Lombadina. They were Roy Wigan, F Bin Sali, Sandy Paddy and Peter Angus (now deceased). They had red paint. Mr Angus was one of the bosses and the men were dressed for ceremony. There were a number of other photographs showing men in ceremonial dress with paint on their bodies.

455 Photograph D 13 shows Goolarabooloo people gathered for the first stage of the initiation ceremony when the boys are being prepared. This is called ‘ngaarb’. The Goolarabooloo were participating in the Bardi ceremonies as some of their boys were going through law. They were dressed quite differently from the way in which the Bardi and Jawi men dressed for ceremony. That is because they were a visiting group. There were photographs of traditional items, boomerangs and a shield and also of old corroboree totems left over at Sunday Island.

456 Photograph D 16 shows Jason Angus and Irene Davey’s son Wassi (Russell Davey) digging up roots of ilngamu for poisoning fish. It was taken at Biyana. Photograph D17 shows Jason Angus and Wassi putting the ilngamu into the water at Sunday Island, drugging the fish and showing students how it is done. Photograph D 18 shows Wassi catching a turtle by jumping into the water to grab it. This was how it was always done before there were harpoons.

457 Photograph D 20 shows D Davey Senior, Wassi and Louisa Thomas when Wassi got his red paint. Tommy Thomas was Wassi’s jawul and when he passed away his wife Louisa was still able to play a strong role. She could authorise him to go ahead and get the red paint.

458 Photograph D 21, taken in 1998, shows D Davey Senior, Irene Davey and Wesley Hunter. D Davey Senior and Irene Davey are jawul for Wesley. In the photograph Wesley is lawinjar bugngarn. Bugngarn is the stage just before receiving the red paint. Lawinjar bugngarn means that he is ‘in charge’.

459 Photograph D 27 shows Irene Davey’s son, Wassi, at the ilburr stage ‘wearing all the gear that you do at that stage’. There was also a photograph of Wassi with Khaki Stumpagee. Since Khaki’s brother died, Khaki took on the role of being jawul for Wassi.

460 Other photographs in similar vein demonstrated the currency of the traditional customs relating to initiation and ceremonial matters described in the evidence of the various witnesses.

461 On day 32 at the second trial, Mrs Davey began her evidence-in chief by identifying country on the map (X-AA1). She said that it was Bardi Jawi country with one law and one community. It had been Bardi Jawi country for as long as she could remember. The east coast boundary went right down to Pender Bay. Madarr is inside Bardi Jawi country.

462 Counsel began reading Mrs Davey’s statement into the record. The first paragraph was:

‘I learn about where Bardi and Jawi country because our law calls through the areas when the man are singing in ceremony. Four of my sons have been through law, so I learnt that, but I can’t say about it. That’s for the boss men. I’m not a boss women but I’m one of the elders. All women have a role supporting men during ceremony, but there are some things that a boss woman can perform that I can’t.’

463 The ‘rirral’ is a line which is prepared when the boys come out during anggwuy after the irrganj. This is the time of celebration. The Bardi Jawi boys sit in the ‘rirral’ line according to their clan or buru where their jawuls put them. They sit in the line of their madjas. The sequence of clans in the line, as described by Mrs Davey, is as follows:

Mayala Jawi

Iwanyun Jawi

Inalabulu Bardi

Ardiol Bardi

Banarra Bardi

Gularrgon Bardi

Olonggon Bardi

Baniol Bardi

The clans are associated with various burus. There could be different burus in an area associated with one group of people. An example is Gularrgon. So Bulgin is a buru for ‘pure Gularrgon people’. There are however other burus in the Gularrgon peoples’ area. Barinybarr is a buru for the Barinybarr people of the Gularrgon clan. Another such buru within Gularrgon is Guljaman.

464 The rules of the ceremony are handed down from generation to generation for all Bardi and Jawi people. All Bardi and Jawi people practice the Law. Outsiders can come and practice the Law but they do not become part of the community. When the Law in One Arm Point is happening a sign is put up at the Cygnet Bay turn off to warn people it is happening and no-one is allowed to come into One Arm Point. This keeps tourists and everybody out.

465 Asked what would happen if somebody wanted to build a big resort on Bardi and Jawi country, and what she could do about that, she said:

‘We have to talk to all the bosses or elders and the majamadjin.’

She said there were some places where people should not build. They would have to ask permission. The Bardi and Jawi elders could say yes or no depending upon where the people wanted to build.

466 Mrs Davey’s country is Bulgin from her father and grandfathers. There are special rules that apply to a child whose father is not Bardi Jawi but whose mother is. In this situation the right to the Bardi Jawi country comes from the mother’s father. A right to a child’s stepfather’s country also arises through the stepfather’s father. But Mrs Davey said it all depends on whether the Bardi Jawi clan accepts the child.

467 It all the families associated with a particular buru had passed away then:

‘The Bardi and Jawi people still can talk on that.’

Just because nobody was living on a buru it did not mean that Nyikina or Karajarri could come and live there. They could not. If a Bardi and Jawi person wanted to go and live there they could. They would just let all the other Bardi and Jawi people know that they were going to live in that area. There might be some discussion about that. Cross-examined by the Commonwealth on this point she said that any Bardi Jawi people could go and live in a vacant buru if it were liveable and if it were okay with the Bardi and Jawi clan. It would be necessary to talk to most of the elders, the old people who know the country and the next door neighbours. If it was okay they should be able to go there.

468 Mrs Davey was told by her grandfather and other old people that Nimidiman is everybody’s country and is for all the Bardi Jawi people for bush tucker and medicine. People from other countries must get permission to go there and if those people won’t leave then the Bardi Jawi contact the police to have them removed.

469 Mrs Davey goes fishing to Sunday Island by boat. She said when she was 14 she went on a boat with her father and uncle and they hunted dugong and turtles. That fishing trip was to Mermaid Island which she said is Jawi country.

(xx) Charlie Coomerang

470 Charlie Coomerang gave evidence on day 10 (15 May 2001) of the first trial in conjunction with H Angus (deceased). He was on the Court’s boat north-west of Iwanyi. He was asked whether he had any traditional country in the area. He said his mother’s country was Bulnginy and Ralral. He pointed north to Bulnginy and Ralral. Bulnginy is Poolngin Island. Ralral is Salural Island. Mr Angus identified two sets of rocks close by. The high rocks are called Niwardinggan (Rees Island) and others are called Mulmulnginy. Mr Angus identified Bulnginy as the main island where his grandmothers came from. As the boat passed between Bulnginy and Iwanyi he referred to Ralral and Bulnginy and Iwanyi as his country. Mr Angus referred to the main current going through Jindalarlbargan, the Sunday Strait. He would not give the name of the current but pointed to Mr Coomerang.

471 Mr Angus also referred to a small reef where he used to go with his grandmother and poison fish, using nguma (sea slugs). Near Bulnginy Island Mr Coomerang referred to a beach where there is running water, Gurrnganggun. The place is called Numunju.

472 Between Belayn and Garndalayn Islands Mr Coomerang identified a rock called Unburrgunbard. Belayn, known as West Roe Island, and Garndalayn as East Roe Island, were on either side of that rock.

(xxi ) H Angus (deceased)

473 H Angus (now deceased) gave his evidence with Charlie Coomerang. In addition to that already mentioned, he referred to the dangers of setting out in a boat when the tide was going out between the two islands, Bulnginy and Ralral. There is fresh water on Bulnginy where you can see a lot of trees. He and Charlie Coomerang pointed to a rocky outcrop on Bulnginy known as Jinyjinyjiny.

474 When the boat approached Bulnginy Island Mr Angus said that this was his area. He said it was Bilinybiliny which was all Jawi. He pointed to two beaches which he called Jungulalmarun and said when the tide goes out there is a hole there. Nobody could go near it only the people who belonged to the country. This, he said, was the Angus’ area right through. He got that country from his great, great, great, great grandfathers. He said:

‘From father to son, from father to son, from father to son.’

Asked whether there was water there, he referred to Gurrnganggun over a hill. He identified a big rock called Nyalgin under which people would sit and wait for ‘married turtle time’. That was the mating season. He said there is a song for that place for the married turtle mating season.

475 H Angus was examined again at the Nilagun outstation on Sunday Island. He went through the Law. He went through anggwuy and everything and finished his Law there. The anggwuy ground was identified by a white pole.

476 At Mardnan on day 14 (20 June 2001) he spoke of his relationship to F Bin Sali who was his father’s first cousin. He was his stepfather who married his mother when his father died ‘to keep us in the family’. He referred to photographs showing houses being built at Mardnan. There were sheds there which were referred to in the Bardi language as baali. The photographs were taken when boys, who were subsequently married and with children, were ‘only knee high’ (X-S). Two other photographs (X-T) taken at Mardnan were also tendered.

477 Mr Angus gave evidence at Jurdun. He was shown photographs of Jirrarmilong (X-U). He said these showed where oysters were when the tide went out. They were taken from a hill overlooking the old camp that they used when they first moved there.

478 H Angus’ final evidence-in-chief was given at Juwinan (site 69), which is located at the point of Cape Leveque on the west coast of the area. He pointed out babugun or yellow ochre on the rocks. He also found some stone flakes which are perfect for cutting meat or fish. He pointed to bidimarr or red ochre and maanga or white ochre in that area. There was a lot of white ochre in that vicinity especially in the old middens. There was ‘heaps’ of it along the edge and bottom of the cliff face.

(xxii) Barry Stumpagee

479 Barry Stumpagee was affirmed on day 10 (18 May 2001) during the first trial but did not give any evidence.

(xxiii) Leslie Stumpagee

480 Leslie Stumpagee is Khaki Stumpagee’s eldest son. He took the Court on a brief 10 minute tour of some sites surrounding Nilagun outstation on day 10 (18 May 2001). He pointed out the gravesites of his grandparents. The graves belonged to his father’s father who was named Gagi and his father’s mother who was named Polly. He pointed to a fence and said that the other side of the fence was men’s private ground. He identified a rock on a hillside. It is called Bulgun Hill. It is a place where old people go to sit when they are tired of sitting at the outstation. The rock is related to the story his father told about Galalung.

(xxiv) Kevin Puertollano

481 At the time of giving his evidence Kevin Puertollano was 49 years of age and employed by the Department of Aboriginal Affairs as a Regional Councillor for the Kullarri region, which covers the area from Sunday Island down to Bidyadanga south of Broome. He is also a Community Employment Development Program (CEDP) worker for Chile Creek. The CEDP program is provided by ATSIC for employment of Aboriginal people to work on different projects in the region.

482 Mr Puertollano gave evidence on day 13 (19 June 2001) during the first trial. On the way to one of the locations named Jiljr, he pointed to an outstation and fishing spot known as Ngurdiny. Ngurdiny has a ‘big’ relationship with the Chile Creek people as it is a hunting area and food source for them. His evidence-in-chief began at Urlg (site 97), south of Chile Head. He visits the area quite often for food sources and his mother walks to the area at least a dozen times a year.

483 In cross-examination by the State, Mr Puertollano said that his father is Yawuru and has country near Broome. When asked if he took his father’s country he said:

‘When I’m Broome, people know me as Irrdinjirr, so they know that I’m from that part of the country and they know I’ve got an attachment to that part of the country. When I’m up here, they know me as Jilirbur. They call me Jilirbur. That means that I come from Chile Creek area which is Jilirr.’

When pressed by counsel on whose country he followed, Mr Puertollano said that he had followed his mother’s country because his father died at a young age. He said that he still claimed country around Broome.

(xxv ) B Lauder (deceased)

484 Ms Lauder (now deceased) gave her evidence on day 14 (20 June 2001) at an outstation at Jurdun to the west of Skeleton point. Her brother Frank Williams lives at the outstation. It was built in the 1990s. She was born at Djarindjin on 1 July 1936 and was living there at the time of giving her evidence. Her bush name was given to her by the old people. It came from Mardnan otherwise known as Skeleton Point. Jurdun was her country through her father. His name was Harry Lauder. He had drowned when one of the luggers he was working on sank in Carnot Bay. Ms Lauder was one year old when he died. His bush name was Jabilu and his father was from Gambarnan. Ms Lauder’s mother Frances had the bush name Gubinggur and her country was Gambarnan. She identified Mardnan, Jurdun, Bayangan and Galan as different countries. Her parents both spoke Bardi. She said that ‘baniol’ means the tribe and the Baniol area goes from Jurdun to Miligun, Mardnan to Garrambany. F Bin Sali was Ms Lauder’s cousin from her mother’s side. Asked about language Ms Lauder said that she understood Bardi language but could only speak a little.

485 In cross-examination by the State, Ms Lauder said that Mardnan and Jurdun were places within Galan country. Gambarnan was Bardi country which belonged to the Davey family. Her brother Frank Williams’ biological father was a white man. Mr Williams’ country was Gambarnan through their mother. He had a connection to Mardnan country through Ms Lauder because he was her brother. Baniol was different to Bardi, it was a different tribe. In re-examination Ms Lauder said that her father was Baniol and spoke Bard. She said ‘we all Bardi language we talk’.

486 Ms Lauder visited the outstation often. There was lots of food to eat like oysters, crab, fish, cockles, and bush fruits called gulangi. She was familiar with bush fruit. The junguny tree provided red berries. When she went fishing she caught a range of fish like barambarr, gulan, gambarl and bidip (rock cod). There were reefs at Nimanan Point and Mardnan. The fish were caught from the beach using hand lines and barnjut (poison potato). When asked how she used the poison potato, Ms Lauder said:

‘Well, we get a rock with sand and lift it up and put it under the rocks and they got drunk. You know, they all come out from under the rock’.

When the tide went out it exposed a large reef. She would walk out on the reef off Nimanan Point to the north-east and also along the reef at Mardnan Point to the south-east.

487 ‘Gulay gabinj’ and ‘milmuk’ were types of bush medicine. Milamangarr and Bilalurru are medicine trees used for their fruit. Ms Lauder went hunting in the bush for burru (kangaroo) and Barni mayol (blue goanna) and mayal. The best time to hunt for mayol was during ula, which is the Bardi word for wet season.

488 Ms Lauder identified a ‘galwa’ or ‘galu’ as being a catamaran. She had been on one with her grandfather Benedict (Gardad). He would take her on rides to the islands to the north of Balanganan.

(xxvi) Kevin George

489 Kevin George, who has the bush name Bagajul, was born in Broome in 1952. He is a Bardi man. His father was Malay. His mother is Patricia George. His buru is Gurrbalgun, part of the regional aggregate of Olonggon. He has nine children. He is separated from Julia Baker and was subsequently married to Ruth Shadforth. Mr George gave evidence on days 15 and 20 of the first trial and day 31 of the second trial.

490 Mr George first gave evidence on day 15 (21 June 2001) at Burunggulun (site 116). This is roughly north-east of the south-east extremity of Pender Bay. There is a lake there which has been used by people from the area for water and for hunting different kinds of goannas and lizards called barni, mayol, gulaman,and jabarr. The words are Bardi words. There are also ducks in the area which can be caught. The lake is part of Gurrbalgunburu. Mr George said he would say that the lake would be part of Gurrbalgunburu because he had heard that from his grandfather and his uncles on his mother’s side. Other billabongs in Bardi country are Lambadajin, south of Burunggulun. To the north-west Judurd at Jambalangan there is a lake.

491 Mr George continued his evidence on the road to Barrambarr at a red ant hill which he called a jidinyin. The ant hills were used by people in the Bardi area as a form of medication for diarrhoea. They were used for women’s business in pregnancy or morning sickness. He pointed to a tree called mardurr or gabinj which was a source of medication and food. He said:

‘You can take the bark off it and boil the bark and the sap from it, they use to apply on sores, for scabs, skin irritations, for anything like that, for surface ailments. ‘

492 The next site was at Barrambarr itself on the sand dunes (site 115). This was on the northern side of Pender Bay. Beaumont J described it for the transcript as ‘... just above the shoreline overlooking Pender Bay’. Mr George pointed out a tree, the ilngam, whose roots are used to poison fish. He was not sure what it did, but it did make the fish ‘go cranky and come up to the surface of the water’. It could be dug out with hands or a sharper, stronger stick. A root stem was dug up and Mr George said that it would be crushed up and put into a container and brought into the water. It would be used in pools with a little bit of water. The less the volume of water the more effective it is. It is used in sea water mainly during the laliny season, around September, October.

493 The next site was on Barrambarr beach. Mr George said the important thing about the area is that Barrambarr is the name of a big Bluebone. He told the story of the two fighting Bluebones. He said;

‘Two of them had a fight there. One came from Beagle Bay area and he come in the wrong territory around here and the head Barrambarr from here, from Pender Bay, from Gurrbalgun, they had a fight between both of them. Before that fight, every Barrambarr had all their tooths, but today you will see after they’ve had that fight, they’ve lost their tooth. But we got rocks here which is Barrambarr today. Those are the two Barrambarr that fought.’

He indicated the rocks that were the two Bluebones about 100 metres off shore. Asked if the westerly rock is exposed when the tide is out he said that all the rocks are out of the water when the tide is right out. He was asked in re-examination how far he can walk once the tide is out. He said it is possible to walk straight across. There are small channels or small creeks, but they are easy to cross. I take that as a statement that it is possible to walk across Pender Bay at low tide.

494 The next location was about 500 metres east of Ulumbanggan on Pender Bay (site 114). Ulumbanggan is a place where water can be dug from the ground on the side of the beach. There is collectable water there and it is one of the main camping sites. There is another anggwuy place nearby, a law ground for the men from Ulumbanggan but it is in the sand dunes. The people would camp there a lot because they could get water from the ground during the dry season. There are fish traps or mayurr to the west made by formations of rocks that form the trap. It was not possible to access the traps on that day because of the high tide.

495 Borlk is south-east of where he was giving the evidence. Barnjut can be found there. Barnjut does the same job as the ilmganu. It is dug out, crushed and put into rock pools. All the fish get ‘cranky’. The fisherman then select the fish they want. Borlk is also a rich hunting ground for goannas. The old people had told Mr George that Borlk is within Gurrbalgunburu. He said:

‘They were still part of this mob, clan, yes. Like they used to roam from here, that’s food gathering and things like that.’

The people of the buru, that is of Gurrbalgunburu, are the Yumbis, the Georges and some of the Dougal families. The people who take their country through their father are the Yumbi mob. There is one alive. Her name is Hilda and she is in Derby with her husband. George Wurma is her garlu (grandfather).

496 Another place he mentioned, Galagumeran,was located on the other side of the mangroves. It is a water place and a gathering place for people. Mr George had been told by the old people that in the early days they used to move around from place to place. This was part of their ‘areas of migrating’ and ‘hunting’, it was a watering place. Imbalgunburu lay to the south-west on the other side of Widung and Galagumeran. Their language group is Nyulnyul.

497 The next site at which Mr George gave evidence was the Gurrbalgun outstation. He is connected to the area through his mother and his grandfather. His maternal grandfather was George Wurrma. Mr George’s name, Bagajul, came from another nyami of that name. He was given that name because his nyami or grandfather thought he was gumbali. Gumbali means having the same name. Nyami means your mother’s father. He looked at Aubrey Tigan who was present at the time and said that Aubrey has a connection to that country through Mr George’s cousin’s sister, that is Rosa. Mr Tigan is Rosa’s husband. Rosa was connected to the area through her mother and her grandfather. Her grandfather was Wurrma’s brother. His name was Jambrrial. Mr George explained that Olonggon Bard is the southern buru of the Bard area. It is the westerly southern buru to be precise. It is south or south-west of the Gurrbalgun area. It goes down to Imbalgun area and north to Julbard.

498 Mr George first came to the outstation with his grandfather and his mother over Christmas breaks in the fifties and sixties. At the time there was a windmill and a stockyard. They used to get their water from the windmill and camp down just over a hill which he pointed out in a southerly direction. They used mainly to go fishing when they went there when he was young. His grandfather used to just walk around and visit the place while we were in the camp. His mother did the cooking. Other people from Djarindjin came as well. Some of them were elders. His grandfather fished with gulajarrk and irrol. Mr George pointed to a number of spears on display under a tree at the outstation. They were mainly for hunting fish, small stingrays or crabs. People would climb on the trees from time to time and when the tide came in and went out they would spear the passing fish. He said there are bigger spears which he makes there for turtle and dugong. The bigger woods are obtained from the pindan outside Borlk on main roads or back towards Djarindjin. He picks out a spear, chops the right ones and makes a fire. The spears are straightened and rods put on them and tied up. He learnt those skills from his grandfather. George Wurrma was famous for making boomerangs. He used to give them away for trade and for presents. When people visited him he took it upon himself to give people what he was good at and what he had a lot of, namely boomerangs. They would give him their type of boomerangs which was their trade.

499 Galwa is a word for raft. The last time he saw a raft was 7 to 10 years ago. He has mucked around with them but never hunted on them. He has seen others hunting with them mainly when he went to Iwanyi. He has completed Law business. He is a young elder. The elders made him a young elder. He doesn’t miss out on any Law unless he is sick or something. Four or five of his sons have been through the Law. There is a grandchild yet to go through and a son who is still too young.

500 Mr George explained the term ‘lululu’. His first encounter with a lululu or shark was in the Beagle Bay area. On another occasion he saw one at Belayn Island. It was undurd or turtle-mating season and he was hunting. They could see this thing on the surface shining. They thought it was undurd so they went there but it wasn’t. It was just an ordinary turtle. The lululu was bearing it up in the water. The old bloke that was with him, Monty Wilfred, said that’s a lululu. Mr Wilfred told him that the shark was keeping the turtle up there for them.

501 Nimalj is something given from the people from the country. It may be fruit or a part of a turtle or part of a dugong. It is something that is given by a group of people or by an individual. Barnman is something that people have that protects them. It is a powerful, spiritual thing within them. He mentioned Red Emperor or gandiyun. Only elders can eat Red Emperor.

502 If anyone who is not a member of his family wants to come to his buru they normally ask by telephone. In the old times they would make signals with smoke indicating that they were approaching. He remembered seeing people use smoke signals. The last time he saw it was when he was expecting his uncle, Bill Yumbi, from Beagle Bay. He was supposed to be coming for a visit and to stay for a while at Djarindjin. He was coming with his wife and their little baby Hilda Yumbi. As they came they made fire at the different camps to let his grandfather, George Wurrma, know where they were. Hilda Yumbi was a little girl at the time. She is now about 40. So Mr George would seem to have been talking about events of roughly 30 years ago.

503 In cross-examination by the State, Mr George said that his mother was Bardi, but not his father. His grandfather was Bardi. It was put to him that because his mother was Bardi and not his father that he was on his mother’s country. He said the reason that he was on his mother’s country was because he has lived with her all of his life and he knew her more than he ever knew his father. His heart was always with his mother and her land.

504 Hilda Yumbi had a sister who became Roy Wiggan’s wife. She is deceased. Hilda is connected to Mr George’s country through her father and her grandfather. She has children who live in Broome and Derby. They come out to the country on holidays. It is their ningarlm country here at Gurrbalgun.

505 One of his grandfather’s brothers was Francis Xavier. He was like a grandfather to Mr George. He had some boys, Alphonse, nicknamed Robin, and Little Yumbi. Her brothers are no longer alive. However they did have children. Uncle Robin/Alphonse had Lila. And he brought up Damien and Kay Xavier. They are all still alive and live at One Arm Point save for Lila who was deceased. The children would now be between their 40s and their 50s. This would be their country through their father and their grandfather.

506 They could say what happens on the country because it is their buru. If anyone wants to talk about the area, they would still come and see Mr George because he was residing there. They have given him authority and have said to him ‘you’re looking after the country brother. They can come and see you.’ His authority is verbal and Aboriginal understanding. Asked is it is like nimalj he said:

‘I don’t know – I guess I got say in this place nearly as much as them sort of thing, but from father’s side, yes, they have got little bit more. Yes, I would say a little bit close like nimalj, yes.’

Mr George has a lease application in for where he lives. It is an application by a group of people of which he is the leader. They are just his family. The people at One Arm Point have given him the okay. It is not a problem with them. Hilda Yumbi told him to go ahead and do what he had to do. She said, ‘You’re looking after the country’.

507 At Yagay (site 110) Mr George referred to Jambalanan (site 112) where there is a waterhole or windmill. It is on the edge of a creek, a marsh area. It is all part of Gurrbalgunburu. He explained that Yagay was a watering place for people for travelling from this area. It was good for hunting for goannas and lizards. There were ducks at the lake there.

508 Mr George next gave evidence at Judurd (site 108) on the western side of the Peninsula and the northern extremity of Pender Bay. He said the place is in Judurd buru. It belongs to the Judurd people. Maangga or white ochre can be obtained there. It is, and always has been, and always will be, a watering place for the people. It has never seemed to run out of water. The water is bidiny. It is water coming out of the ground. He pointed out white rocky outcrops in the area which are a source of maangga. He identified a piece of rock as maangga (X-AB).

509 Ngambinan is about two kilometres to the south east (site 109). A reef called Manbur runs west from it. Mr George had been there to hunt for fish and turtle and for barrambarr and gambarl. Barrambarr is a fish which is a delicacy for people from his area. Fish can be obtained from rock pools in the reef. The word yindubuk refers to the manta ray. It is the protector of the Gurrbalgun area and Pender Bay.

510 There are two reefs to the north-west of Judurd. One is called Gandarr and is exposed at low tide. The other, Gulay, is not exposed at low tide although it can be seen from the surface. Judurd and Gulay belong to the Judurd people and Gulay people respectively. Gulay would also belong to the Judurd people. It was part of Judurdburu as far as he knows. Cross-examined by the State, Mr George said where they were standing was Judurdburu with which he has a connection. He uses the place. His grandfathers would have used the place. It belongs to Terry George. It is really for him to talk about it. He had been asked to talk about it and he was doing so. He went hunting in the area. He had obtained Terry George’s consent. Once he has permission he takes it forever until he is told he is not welcome any more.

511 Mr George gave further evidence on day 20 (28 June 2001) at Gulbun. He identified a photograph (X-Z) of Widung Lake at Bells Point. He said the Galagumeran area was around the Point. There are fish traps there. There was an ululung or Law place in the scrub in the Ganburr country. He pointed to vegetation in the centre of the photograph surrounded by sand. The general area is Imbalgun area, Imbalgunburu. It is still part of Bardi country, southern Bardi.

512 Mr George was shown an aerial photograph (X-AA) of the outstation, Gurrbalgun. He identified the two Barrambarr rocks in the photograph.

513 In cross-examination he said that Bobby Bowles, whose people are associated with Bells Point, is with the Mangurr group. He did not think he was Nyulnyul. He supposes Bowles’ family to be Bard. His mother’s side is Bard. He doesn’t know about his father’s side. There are no Nyulnyul people living in that area at Bells Point that he knows of. Nor did there use to be Nyulnyul people there that he knows of.

514 Mr George was cross-examined by the Commonwealth about previous evidence given by Terry and Joe Sammat concerning the boundary of the Bardi country and whether the southern side of Pender Bay was Bardi or not. He had not spoken to either of those witnesses about that evidence nor had he spoken to any elders about it. He was also cross-examined by counsel for WAFIC. He had earlier identified Imbalgunburu on the other side of Pender Bay and when first asked had said the people there were Nyulnyul. He remembered saying something similar like that but said it was a mistake. He denied that somebody else had told him what was the right thing before he rectified it. He was asked why he would say it is part of Nyulnyul if he knew all along it was part of Bardi. He said:

‘My answer to that is nerves, not sort of thinking correctly and I think maybe stressing because of this and that’s just an honest mistake.’

515 Mr George gave evidence at the second trial on day 31 (30 June 2003). A part of his statement of evidence was read into the record without objection. It began with the general statement that geographically Bardi and Jawi people are spread out on the country and on the mainland and through the islands but that what that keeps them together is their Law business. By the Law business he means anggwuy, Ululung and traditional custom ways. It is a communal thing. Because of the Law Bard and Jawi are all one people. As far as he knows this has always been the case.

516 The system of Law is pervasive in the sense it stretches out into all the persons’ life. It affects who he talks to and what he talks about. It occupies his mind. He never stops singing to himself wherever his travels take him. Law is a part of him, it is in his blood, it is in his system. He will never escape it, he doesn’t want to escape it. He loves the Law. He says it makes him feel strong, it connects him with his ancestors and makes him part of the link that is carrying on the traditions.

517 There is a ranking system for Law bosses. The madja have special responsibilities. There are laws about how madja are chosen. They are appointed by all madjamadjin after discussion among themselves. They are chosen in a Law ground ceremony because of their knowledge of Bard and Jawi Law and customs, leadership skills and the way they conduct themselves. Uju and Jamaji are the oldest madja. Because they are old they can’t do some things so they hand over day to day running to other madjamadjin including Paul Sampi, Joe Davey, D Davey Senior, Aubrey Tigan and Monty Wilfred. Mr George was asked as a young madja quite early in his forties. His nyami, his mother’s father from Gurrabalgun, was a big madja for the whole country.

518 He stated, as had other witnesses, that Law men are responsible for Law grounds and other ngulungl places in two different ways. All Law men are responsible for all Bard and Jawi law grounds and other ngulungl places. All Law men must protect all Law grounds and other ngulungl places. They must look after them and make sure only Law people are allowed on them and that people only go there at Law time. A Law man or a clan leader for a particular area has particular responsibilities for Law grounds and other ngulungl in their country. In Gurrabalgun he is the madja for that area. Once ceremonial business is finished on the country and all the other different madja have left, it is his responsibility physically to look after the Law ground there to make sure it is ready for the next ceremony and make sure the wrong people don’t enter the ground. He cannot stop another Law boss from coming and seeing what is happening on a Law ground in Gurrabalgun. It is right of him to come down and look out for Law business. If not, he is not carrying out his job as a madja. He was told from an early age where the law grounds are. Even if a Law ground is not being used, it is still a Law ground. That is the Law. If the wrong person goes on to a Law ground he breaks the law. As a consequence the ground itself will do damage to him or his family members very quickly.

519 Senior madja women who work closely with the madja men during Law time have their own responsibilities. The different responsibilities of the men and the women come from the beginning from the Law. All Bard and Jawi people know and respect the role and direction of madja women. There is a certain place where women and children can sit, especially during ngurril time when the boys are coming out. One of the responsibilities of the madja women is to tell the other women and children where to sit. As a boy he used to sit with women in the right place during anggwuy business.

520 Everyone is brought together through the Law and through jawul. The bonding that comes from having jawul keeps the community in harmony. There are rules about who can be jawul. Jawul must always be inarr to the young person. The jawul pay a role as a parent of the boy when the parent is away. The jawul have to sit in a special order.

521 There are special rules about who Bardi and Jawi people can marry. Jarnd can marry jarnd and inar can marry inar. The rule is part of Bardi and Jawi law. If people break that Law the parents from both sides have the right to take action and they still do. If an argument over marriage goes beyond the families concerned then it may be that the Law bosses will get involved.

522 Mr George then recounted a visit with staff of the Kimberley Land Council to various locations (X-AAJ) in the Peninsula as follows:

Location 9 - this location was on the Chile Creek access road or the Pender Bay back road. On the west side of the road were ngulungul places. On the other side was the beginning of the Nimidiman country. He knows that because he used to travel around the country with old people who would teach him about it.

Location 10 - this location was along the Lombard access road or the Pender Bay back road. Mr George stopped here because there was a law ground close by to the west. On the other side of the road was the beginning of Nimidiman country. He knows this because he is a madja and used to travel around the area with old people who taught him about the country. He used to come to this place to cut irrigul (boomerang trees).

Location 11 – this location was the corner of the Old Judd Road and the Pender Bay back road which was also the old stock route. One kilometre west of that location is the boundary between the Nimidiman country and the coastal burus of Julius and Jurdud, the Olonggon mob. When he was still at school Mr George would travel the stock route with his nyami on a donkey cart and would be taught about the country. He also knew from his old people telling him stories about travelling around the country for Law. He and his sons come to this Nimidiman country all the time to get trees to make jararr.

523 Mr George took another trip on 12 June 2003 and stopped at five different places.

Location 12 – this was along the Pender Bay back road. It was straight out from the traditional country of Julbud buru and Jurdud buru, but close to Jurdud. One kilometre westwards was the boundary between that country and the Nimidiman country. He used to walk around that part of the country on the Olonggon side with the old people. He would hear stories from the elders about what they did on country. You know you are in Nimidiman not only by the trees but by the sand and the ground. The coastal buru has mainly white sand while the inland country has thicker black soil and denser pindan.

Location 13- this was also along the Pender Bay back road. It is the beginning of the change between the marsh country of Jambaranan, which is part of Gurrbalgun buru and Nimidiman country, about one kilometre to the east. Mr George knows this from walking around with his nyami and other old Gurrbalgun people.

Location 14 - this was along one of the tracks on Gurrbalgun buru between Jambaranan and Burunggulun. Nimidiman country is about one kilometre to the north-east. It was possible to tell that the location was in coastal country because there was still white sand, although it was beginning to get mixed with black soil.

Location 15- this was along a Pender Bay access track. It is called Burunggulun. About 500 metres to the north is the boundary with Nimidiman country.

Location 16 - this was the boundary of the Beagle Bay Reserve and the Cape Leveque Road. It is roughly the border of Nimidiman country and Gurrbalgun buru. Mr George’s nyami told him this. People have freely walked around here collecting barnjut.

524 Mr George referred to Exhibit AAI showing the claim area. He was referred to the places marked on that map from the Jawi Islands in the north to the southern boundary of the Bardi country. He identified the area as Bardi Jawi. He said it is one country and the Bardi Jawi people belong to it. Asked what makes the people one he said:

‘Through our teaching the law, yes.’

He said their customs were the same too. They hunt the same type of food, eat the same type of food, make the same type of material, sing the same songs, dance the same dance, speak the same language.

525 His buru is Gurrbalgun. It is in the vicinity of Pender Bay. He has the right to speak for Gurrbalgun buru, by two means. One is from the clans of Gurrbalgun, and the other is through the laws and through the madjas. He found out through his nyami through his teachings when he was a young man that he would speak for Gurrbalgun. He got the right in another way from his clan members. His responsibility for Gurrbalgun, being a madja from there, is to look after the country and everything that is in it and to protect it on behalf of the clan. Speaking for country carries with it the right to let people come in and the right to refuse entry.

526 The buru to the south of Gurrbalgun is Imbalgun. Widung is there also, to the east of Imbalgun. He identified Borlk on Exhibit AAI at the edge of Nimidiman country. He pointed to where Imbalgun buru is south-west of locations 119, 117 and 118. There is a Law ground in the buru really close to Widung for ululung. He spoke of permitting people from other burus to hunt or fish in Gurrbalgun or use the waters of Pender Bay. It is common for other Bardi Jawi people to come down to his area to fish or hunt. When they arrive they announce what they want to do and for how long, if they want to camp. If they just want to come fishing or crabbing or hunting for gulil or odorr normally he wouldn’t refuse them. The practice of the other buru leaders would be the same. If he wanted to go to the Jawi Islands, for example Mermaid Island or Long Island, he always asked the people from there. He had never been refused. He said he thinks he has a sort of lifetime pass. If he gave permission to someone to come and hunt and fish and they didn’t do anything wrong and respect his country and behave themselves he thought he did not have the right to refuse permission because they hadn’t done anything to the country. It would be going against his traditional way and teaching to be turning people off the country when they hadn’t done anything wrong with it. He agreed with the proposition that the rule is generally followed by people when they move around Bardi and Jawi country.

527 His rights in respect of his own buru Gurrbalgun were to protect his country and look after everything that is in that country for the clan group in the buru. Everything that is in the sea that they use is still around in their country. He has the right to protect the Law grounds. He has the rights to get fruits and fish and hunt. He hunts for gulil, dugong, bunyman, ngarrung and arrli. Gulil is turtle, odorr is dugong, gulajarra is a spear. Bunyman is a cockle, like a shell. Ngarrung is a crab. Barnamb is the stingray.

528 The other members of his clan have the same rights of hunting, fishing, gathering fruit and the like. Yawuru or Nyikina or white man cannot come on to his country and hunt and fish without permission. They would have to approach him and ask. If they ask he could say yes or no. If somebody comes on to his country without permission he has the right to chase them away. His clan has the right to do that as well. If he gave an outsider, such as a Nyikina person, permission to come on to his country, his buru, he would be responsible for that person while in the country. There are spiritually dangerous places in his country. These are the Law grounds.

529 He identified the Nimidiman area in Exhibit AAJ as the yellow green part in the middle. All Bard and Jawi people have the right to use it. They do not have to ask permission to do so. They use materials from the area for making boomerangs and fighting sticks. They use the manawun for making jararr which is the hunting spear for turtle and dugong. There are some ochres there for paint for ceremonies. They can also get nunarr there which is honey from the trees. They can hunt snakes and lizards. The Nimidiman country does not belong to any particular buru. People can use the Nimidiman country to move around as they travel from one area or buru to the other. The people who have the collective right to speak for the Nimidiman are the madjas of Bardi Jawi. So if there were mining or something like that proposed for the Nimidiman, those who wanted to do that would have to speak to the Bardi Jawi madjis. If there were a proposal to do anything that might affect a Law ground, the Law bosses would just say no. No development, no interference, no disturbance.

530 Apart from Law grounds there are other places within individual burus which are of common interest. There are places where certain customary materials are available which are used in daily activities. Examples are the timbers that are used for boomerangs and spears. There are places where there are certain foods available and because of that are places of significance to the people. He named some of the important materials. The wood of the irrigul tree is used to make boomerangs. The wood of the manawun and wanggay trees are used to make spears for hunting dugong and turtle. There are jararr spears which can be made from the timbers of any of those trees. There are gulajarra spears which are made mainly from wanggayand wulurl. Clan groups from other burus might want to get some of those materials from Mr George’s country or his clan group’s country. He might go to Galan or Ngamagun and talk to the madjas in those places and ask to get a spear from one of those places. There are also things necessary for ceremonies that are got from the country.

531 The main foods for the people in Mr George’s buru are barnamb, gulil, odorr, and arrli. It is the same for other people on Bardi and Jawi country. The people are accustomed to those types of food. They can only get their food from the sea and on the land. Mr George has been hunting and fishing all around the coastline. In the area of the sea near his buru he does not need permission to do that. He had seen a couple of galwa being used at two different places. One was at Djarindjin. The other was at Iwanyi. He had seen a barrawar or dug out canoe used. One old person, Bindi, came and stayed with his grandfather one day. He used to leave his barrawar or dug out canoe at Galan. Mr George sometimes used to walk there with his nyami and he saw where Bindi kept his barrawar.

532 Mr George then discussed the empty burus, places in the country where Bardi and Jawi people used to live but don’t live at the moment. Dealing first with a case in which all the people of a particular buru had died out, he said the neighbouring people and the madjas would speak for the relevant country in that situation. If there were living descendants but nobody living in a particular buru then, according to Mr George:

‘We would always try and get in contact with the descendants.’

The mere fact that a person leaves his or her country and goes and lives in Broome or somewhere else does not mean the responsibility under the law to take care of the country ends. The responsibility continues forever.

533 Even though the occupants of a buru may have died there are still things in that country. Country has the spirits of the descendants which belong to the Bardi and Jawi tribe. The land is never lost. It will always be Bardi Jawi. Mr George said:

‘I know no other way of our teachings and that; we’ve never known for the land to be handed over or given to anybody, like any other people except for the Bard people to be looking after that buru, that country.’

There are no people living in the Guljaman buru in the traditional way anymore. But there are sacred places in Guljaman. All the Bardi and Jawi madjas are responsible for their safety. Paul Sampi has been looking at them on behalf of the madjas. There are other currently unoccupied burus. Jalan (Tallon Island) is an example. If a person from outside such as a Yawuru or Nyikina wanted to hunt or fish on an unoccupied buru he would have to approach the elders and the madjas.

534 There are Bardi people physically living on Bardi islands and the Bardi mainland and Jawi people living in the Jawi area. However, he said:

‘together we are one through our law.’

There is one teaching, one language and culturally all the activities are one. The language of that people is ‘more Bardi today’. They had spoken Jawi he understood but that phased out slowly. There might be one or two speaking it today. He said he did not know any Jawi words. The word bielbiel he understood to mean the same as galwa. Asked what language bielbiel came from, he said he was not certain, he had never asked that question. He was not certain if it were a Jawi word for galwa.

535 Asked if he knew any living Jawi people he said his understanding is that the Ejai mob, the Stumpagee mob, are. He has lived with those people and mixed with them. He said Bardi was spoken. He has no recollection of hearing the Jawi language spoken. In asking permission to go fishing around Mermaid Island and Long Island he asked Aubrey Tigan, Monty Wilfred and Adrian Isaac. He knows them as Bardi Jawi people from the one group. He understands Mr Stumpagee to be a Bardi Jawi person.

536 When he said he was speaking on behalf of a clan he meant the people of the buru, that is Gurrbalgun buru. He is a member of that clan group because he has blood ties through his nyami and his uncles and other nyami. Other members of the clan group derive their membership from the same blood relationship. Cross-examined by the Commonwealth he was asked about his blood ties that gave him rights in Gurrbalgun. They came from his mother’s side. He was born at Broome Hospital and went to school in Broome.

537 In relationship to the area of waters protected by the manta ray, he said they protect the entrance, all the seas in there and the creeks and rivers. They protect from Imbalgun to the outside of Jurdud. They protect from the Imbalgun side on the southern part of the map through to the nearest place on the northern part which is Jurdud.

538 In 1957 there was a big cyclone and his mother said to him and his nyamis said that he had better get out of there and go back to his country. By that he meant Djarindjin at the time. He was five years old then and his mother took him with her. He stayed at Lombadina mission until about 1966 when he was 14. Then he went to Perth where he stayed about eight years doing his schooling and an apprenticeship as a carpenter. He went back to Broome after that and worked in Broome and Derby and then went back on the country. He worked at Derby as a maintenance carpenter in the hospital. He stayed in Derby for about four years. After Derby he went to Beagle Bay and worked as a carpenter there. He worked at the mission. After Beagle Bay he worked at the Guljaman Resort and put up log cabins there. However he was living at One Arm Point at the time. This was about 1987/1988. After he finished working on the resort he worked for about 8 to 10 years as a maintenance carpenter at One Arm Point. That took him through to the mid 1990s. After One Arm Point he then went back to his country at Gurrbalgun.

539 He had previously been to Gurrbalgun when the opportunity arose and had lived there when he could. Asked what made him think it would be a good idea to go and reside in Gurrbalgan. He said it was always in his heart and in the back of his mind that he belonged to that country. When he went back to Gurrbalgan at that time his idea was to put up some buildings there, not just for himself but for his family. He has done that. When he went back to Gurrbalgan in or about 1997 there was nobody else living there. There was talk about native title among the Bardi Jawi people. He wasn’t involved at that time. He was doing work so he wasn’t much involved in ‘the politics about it.’ He rejected the suggestion that his decision to go and make some accommodation at Gurrbalgun had anything to do with the Bardi intention to have a native title claim. He was not asked by anybody to go and live at Gurrbalgun.

540 None of George Wurrma’s brothers are alive today. George Wurrma did have children. None of them are alive today. He knows Hilda Yumbi. She is the daughter of Bill Yumbi. Bill Yumbi’s father was Wambarag. Wambarag was the brother of Wurrma. Hilda does not have a brother by the name of Alphonse.

541 Mr George understood that it was part of the Bardi law that a person takes his country from his father. It was put to him that the right person for Gurrbalgun would be Bill Yumbi and his children. Mr George agreed that that could be said and that could be part of the Law. He was asked why it was that it was he that was speaking for that country and not the Yumbi people. He said one of the reasons he was speaking for the country was because his sister, Hilda, or cousin’s sister had married into Ngarinyin tribe and while she is there she has consented to him looking after the country. He said she is still saying that today which is part of the acceptance of the Bardi Jawi law. He agreed that under the old law of the Bardi the right person for the Gurrbalgun buru would be Bill Yumbi.

542 In re-examination, Mr George said that there had been a lot of intermarriage from people from the Jawi side and the Bardi side. They had been intermarrying ‘continuously over the years’.

543 In the anggwuy ceremony, the ‘young fellas’ sit in line. On the left they start off with the Jawi mob and the sequence that follows is Iwanyiun, Jayirri, then to the mainland, the Barrinybar mob, Guljaman mob, Ardiolon, Ngamagun, Baniol, Baniol lot, Gurrbalgun mob, right down to Nimanbur buru. Gurrbalgun is his buru in that line. When he puts a young man through the Law his jawul will sit in the Gurrbalgun position.

(xxvii) Joe Sammat

544 Joe Sammat was born in or about 1968. His father was Jubo Sammat, a Karajarri man born to a Karajarri woman. Joe’s mother was Ottillia George. He gave evidence at two sites on day 15 (21 June 2001) during the first trial. The first site was Judurd beach (site 108) atCape Borda on the west coast of the claim area. Mr Sammat said this was part of his country through his mother’s father, Indu. His father, Jubo Sammat, had told him to take his mother’s country because of his special bond with her. He regarded himself as having a traditional connection to the country. He goes fishing and hunting on the beach as often as he can.

545 Mr Sammat had lived with his parents in Broome until his father died in 1986 when he was aged 18. He had visited the area at Judurd outstation over the years. He had not gone through Bardi Jawi law. In cross-examination he said he moved to the outstation, where he had been living for about a year. He had been elected as chairperson for the outstation. He felt connected to the country and there was no one else. In re-examination he said no one had objected to his nomination.

546 Mr Sammat gave further evidence at the Judurd outstation (site 111) to the east of Judurd beach. He and his family had moved to the area in the early 1990’s because there was trouble with farms in the area. He would have preferred to be closer to the coast. He lives at the outstation with his brothers Norman and Leslie. His sisters and friends come to visit and his brother-in-law Peter drops off building materials but he has not built anything yet. Counsel for the commonwealth asked Mr Sammat to clarify how long he had been living in the area. He had been coming to the area four to five times a year since the 1990s and stayed for four or five weeks at a time. The outstation was moved a year ago when ATSIC provided ablution blocks.

(xxviii) Terry Sammat

547 Mr Terry Sammat gave evidence at Judurd beach on day 15 (21 June 2001) during the first trial. He is Joe Sammat’s older brother. Their father’s country was La Grange and their mother’s country Judurd through her father, Indu. He lived in Broome where he had lived all of his life although he frequently visited the Judurd area. In the preceding year he had visited the area approximately six times.

548 Mr Sammat said that the shoreline boundary of his mother’s country went right up along the north-westcoast but he was not sure how far. The north-east boundary goes along the plain which is near the lake – a water hole called Yagay. The south-east boundary goes out to a reef approximately a kilometre off shore. Asked whether he knew who were the people for the country on the other side of the reef, he said he did not know ‘much about that’. He did not know much about Bardi country because he grew up in Broome. Asked if he could identify the boundary of Bardi country on a map he said that he had told Bardi country went from Pender Bay north to the Peninsula. He was not exactly sure because he is a ‘young fellow’. His grandmother, who was a Nyulnyul woman, told him that the land to the south of Pender Bay belongs to the Nyulnyul people. His grandfather’s country was to the north of Pender Bay. He appeared to identify the waters of Pender Bay when referring to the southern extremity of the Bardi country.

(xxix) Eugenia George

549 Ms George gave her evidence on day 15 (21 June 2001) at Judurd outstation (site 111). She identified her family tree as accurately depicted in a document which was received in evidence and showed all members of the George family from Judurd (X-X).

550 Ms George was also shown three pages of photographs. On the first page (X-Y1) there were two photographs. The first of these were taken in Broome in the early 1970s. It showed her uncle Henry George, her grandmother Mary George (Jilu) who was a Nyulnyul woman and Paddy George (known as Indu by the Bardi people). The second photograph showing Ms George’s mother, Lucy, was taken in the mid 1970s. The second page of photographs (X-Y2) had three photographs on it. The first showed Bernard George, her grandfather’s brother. The second showed Eugenia and her aunt, Ottilia George and was taken in 1983. The third photograph on the second page of the exhibit is of Albert George outside a church in Broome in the 1970s. He was Paddy George’s son. He is shown in the family genealogies (X-X). The final page (X-Y3) has four photographs showing members of Eugenia’s family on one of their visits to Judurd beach in 1994.

(xxx) Vincent Angus

551 Vincent Angus was born in Lombadina. His mother Rosie is Bardi and his father, Bonnie, is Jawi. He describes himself as both Bardi and Jawi. He is originally of Iwanyi (Sunday Island) which was his father’s country. He also belongs to his mother’s country, Guljaman, which is located half way between Ngamagun and Swan Point. That is his ningarlm. His mother’s brother’s, old man Mr Paddy, brought him up. Mr Paddy was his madja and put him through Law as his jawul. Mr Paddy was a very senior Bardi Law man that travelled frequently between Lombadina and Bulgin.

552 Mr Angus gave evidence on day 16 (22 June 2001) of the first trial and day 32 (1 July 2003) of the second trial. At the first trial he gave brief evidence on the beach at Ngamagun (site 88) north of Thomas Bay on the east coast of the claim area. There he pointed south- west to Ngamagun creek and said it was 4 to 5 kilometres away.

553 He next gave evidence at Juwinan (site 69) on Cape Leveque. It is called Laliny. Old people would hunt there for mating turtles. The old people used to sit by rocks, which he pointed to, and sing while others would stand along the cliff face looking for turtles that came in with the tide. Rocks would be piled up and thrown at the turtles to bring them close to where the people where. To the north was a reef that went out to an island called Anbarrngani.

554 Mr Angus spent a lot of time in the area as a child. He grew up in Hunters Creek with his mother, aunty and uncle, Mr Paddy. He went with his uncle fishing for judany-judany (painted crays) using small octopus and driftwood found on the beach. They used to poke a hole in the octopus, which was secured to the wood with a piece of string and placed under a ledge. He said that the crays are afraid of octopus. Mr Angus pointed to a sandbar that connects the mainland to a small island. There are stone fish traps along the edge of the sandbar designed to trap fish when the tide goes out. These are mayirr fish traps.

555 When asked if there was anyone buried in the area Mr Angus said that they are called Nganyjin because the person is buried in a tree. He pointed in different directions to some of the burial locations. One was in bushland on the side of a hill; another was on the other side of a large rock. He said ‘they can’t go in there anymore’.

556 Mr Angus pointed north-east to two islands known as Juwarnan and Murrudulun (Twin Islands). He did not know if there were any people on these islands still living. He pointed east to Mardud which is his mother’s country. He is connected to that country through his mother.

557 The Court then travelled to three locations in the Guljaman area (site 67). The first was on sand dunes where Mr Angus pointed out dark stones used for cooking turtles by the ‘laalbu’ method. The hot stones are put into the turtle’s stomach while it is being cooked. The second location was an old camping area where there were turtle shells and oyster shells. The third location was higher on the sand dunes. There were turtle shells, camping areas, laalbu rocks, fish bones and oyster shells. The camping areas had been there since before his time.

558 Mr Angus gave evidence at the second trial on day 32 (1 July 2003). He was accompanied by his nieces Rohanna and Colleen Angus and his sister Tracey. His bush name is Ugamo. He was living at Mardnan at the time. He described himself as a tribal elder in charge of the Law. His statement listed several other tribal elders and the many clans including Baniol, Nimunburu and Adiol. The list of the elders and clans he named were as follows:

Elders:

Paul Sampi

Aubrey Tigan

Kevin George

Brendan Chaquebor

Frank Davey

Joe Davey

Adrian Isaac

Mr Isaac

Old man Stumpagee

Jimmy Ejai

Clans:

North coast

East coast

South coast

Baniol east

Gularrgon, west

Adiol, top north

Inalbulu, reef people, island people

Olonggon, Kevin’s mob, south-west

Nimunburu, south-east

He said:

‘The law said we need to go by north, south, east and west. They are different positions in the law. These places designate areas in law to where the clans sit. The law makes it like that. So in law, we know where our people come from. When we are singing, and the boys are sitting, we’re singing from north to south east, then north to south west. Singing where people come from’.

559 In cross-examination by WAFIC he said people from Nimunburu are not different to Bardi Jawi people. They are a Bardi Jawi clan. The Nimunburu people are a mixture of Bardi and Nyikina people. He knows some of the families from the clan including the Coxes and the Manados. Asked whether Nimunburu people refer to themselves as Nimunburu or Bardi he said:

‘They call it like, when Bardi people are friends with someone, they say Baniol, Gularrgon and Nimunburu and Ardiolon. They refer it that way to themself’.

560 During an initiation ceremony the jawul sits in the madja’s country. When he went through Law he sat in the middle because his madja was from Gularrgon, which is on the west coast. He said when he puts a jawul through Law, they sit either with Bilinybiliny buru in Iwanyi or with Baniol from the east coast.

561 Mr Angus explained the Law as it applies to a Yawuru man. If a Yawuru man wants to live in Bardi Jawi country he must get permission to go to through Jabirr Jabirr land and Nyulnyul land first. A Yawuru man wishing to live in Bardi Jawi country must go through the proper channels. He may be granted permission to visit and if he marries a Bardi Jawi woman he can remain and will have rights through his spouse called ‘gurrurriny’. A Yawuru man cannot be a boss in gurrurriny country. People are generally granted permission to be in the country for a certain period of time but must then go home.

562 Rights in the country come from the Law. The Law is learnt from the old people and from going through the Law and growing up in the area. Ceremonies take place on Law grounds on both sides of the coast. They have strong powers and those who mess with the law can become ill or die. Law bosses and tribal elders are responsible for protecting the Law grounds. One of these responsibilities is to ensure that during ceremonies the songs and boys are ok and the tribal elders are respected. An elder must get permission from all the other elders before opening a Law ground. Law grounds are out of bounds for women and men can only camp there at Law time. A Law boss may enter the Law grounds to ensure that everything is in order. There is one place at the Ululung and Anggwuy Law grounds where only painted people can go during ceremonies. If a Law boss is not protecting the Law grounds other Law bosses can question him because the Law needs to be protected. Law bosses have the right to go to a ceremony at any Law ground.

563 Mr Angus explained how he hunts for turtles. When he was younger he would go out on a dingy or a ‘gaalu’ but now he uses a boat. Once the boat is out far enough he turns the engine off and waits for a turtle to surface for air. A turtle surfaces only once every 20 minutes. He spears the turtle through its shell. His uncle Sandy used to spear the turtle though the neck. There is a rope attached to the spear that is used to drag the turtle back to the boat.

564 Mr Angus’s uncle taught him how to make a ‘gaalu’. The last time he saw one made was in 1985 at Bulgin. A ‘gaalu’ is made from gaalu trees that are like balsa wood. The trees are quite common especially at Bulgin and Madarr. The law says that the tree must be dug out from its roots, so a new tree can grow in its place. If a tree is cut down by an axe or chainsaw, the tree’s life and spirit is taken. Its roots grow back tangled making it impossible to use for gaalu. The bark is skinned from the tree while it is still fresh. Eight logs are used at the front and ten at the back. Two rafts are made. The smaller one goes to the front. Curly bark wattle is used as pins to hold the gaalu together. The pins are sharpened and burnt at the tip to harden and inserted at an angle. Eight little pins are used at the top of the gaalu for holding things and four large pins are used on the larger gaalu to nail down turtle and dugong. Paddles are generally made from the same wood as the gaalu but olive trees can also be used.

565 According to Bardi Jawi Law a jawul who goes through Law is taught by the madja (an older person). The madja can be from inside the family. Mr Angus said:

‘To have a jawul’ means to be responsible for that boy, for his upbringing. It’s a very important relationship, just like adopting a boy for yourself”

He has seven jawul and he is responsible for putting them all though Law. Terry Hunter and Andrew Albert are two of his jawul. They cannot marry without his permission. During a ceremony he gives people different tasks. A jawul’s jarndu paints him. If there is no brother-in-law who is jarndu, the jawul’s grandfather will paint him. Mr Angus makes his jawul’s boomerangs, shields, pearl shell and hair belt. The jawul’s parents assist with preparing the food.

566 In cross-examination by the State, Mr Angus said Mr Hunter is from Bardi country Barlanganan and Mr Albert is from Baniol. During the ceremony he can sit in either the Baniol or the Iwanyun areas but he prefers to sit with the Mardnan people in the Baniol area. Mr Angus said:

‘See, I didn’t know my own father properly. I didn’t grow up with him. I grew up with that old man, so I go where he tells me. He was the law boss too and the one who taught me everything’.

Asked whether he could sit in his mother’s country during ceremony, Mr Angus said that he already did because her country Gularrgon is in Baniol country. Women can also have jawul. Mr Angus helped his sister put her jawul through Law. When his older sister died he looked after her jawul and is responsible for them for life. If they make any mistakes then he is the first one there. His jawul can tell him if he makes any mistakes during Law.

567 Mr Angus identified the claim area on the map (X-AAI) and said it was Bardi and Jawi country, one country that belongs to one people, the Bardi and Jawi people. Asked what makes Bardi and Jawi one people, Mr Angus said:

‘Well, they’re all one in law, culture, hunt the same way, they look after the land the same way- everything…and look after their country the same way’.

568 Mr Angus pointed to the location of his buru Mardnan on a map. He said that the old man who had recently passed away was married to his mother and the boss man of Mardnan and will remain a boss man. The old man made Mr Angus the boss of Mardnan and he speaks for it. His obligations to Mardnan include looking after the country, ensuring that no one disturbs the land or enters without permission and continuing to do things the way he was taught.

569 His father was from Sunday Island and his mother was from Bulgin (site 63) in the Gularrgon area. Intermarriage between the Bardi and Jawi people has occurred since the beginning of time. Most of the mainland is known as Bardi and the islands around Sunday Island are Jawi. Nyulnyul is the neighbouring country to the south-west of Bardi Jawi country and the neighbouring country to the south-east is Nyikina.

570 Bardi Jawi country should be looked after and not disturbed by strangers. Fishing, hunting and gathering food such as kangaroos, lizards, turtle and dugong from the land and sea in Bardi Jawi country is allowed. He can hunt for as much food as he likes as long as it is not wasted. People who come from the Mardnan buru are free to stay. Mr Angus referred to himself as a manager of the Mardnan buru because he did not come from there. If a person from another buru wanted to live at Mardnan or build there, they must ask permission from his sister Tracey because she owns the place. If a person has lived on a buru for a long period of time and respected the Law and other families in the buru, there would be no reason to tell them to leave.

571 Mr Angus said if he wanted to live in another buru at Pender Bay, he would have to get permission. He would ask Kevin George because he is the one of the bosses. He spent time with Kevin in the dormitories when they were children. If Mr Angus moved to the buru he would have to respect the Law and help Kevin look after the land. If after a few years Kevin wanted him to leave Pender Bay the Law says it would be up to Kevin but he would need a very good reason. He identified Borlk on the map. It is Kevin George’s area. The Bardi clan known as the Olonggon people speaks for Borlk.

572 Mr Angus is responsible for caring for Bardi Jawi people who visit his buru because they are his guests. If the guests are other Bardi Jawi bosses, they will help look after and protect the Law grounds. If the guests are not bosses then Mr Angus is required to explain the areas where they are not permitted to go. If the guests were to hunt in the Law grounds they would get sick because the Law grounds are a very powerful place. The other Law bosses would regard him as having done the wrong thing.

573 Mr Angus was shown a map (X-AAJ) on which he identified the large area in the centre of the Peninsula as the Nimidiman. It means ‘free country for everyone…all Bardi Jawi people’. Bardi Jawi people can access the Nimidman without asking permission. Mr Angus goes there to collect spears, hunting, digging up yam and gathering bush fruit. There are no sacred places or Law grounds in the Nimidiman.

574 The words ‘marriuyn amboriny’ are Bardi Jawi for stranger. A stranger from another country such as Nyulnyul must ask permission from the nearest Bardi Jawi clan if he wants to enter the Nimidiman. If the stranger does not get permission he is trespassing. In the old times strangers would seek permission to enter the Nimidiman by lighting fires and sending smoke signals that could be seen. He said:

‘Until they come in view, you know, and the next people from that clan would see their fire or smoke, and they answer them back’.

575 The Bardi Jawi clans close to the south-east and south west boundary of Bardi Jawi are called ‘gate-keepers’. They walk back and forth along the boundary and check for empty campsites and tracks to see if strangers have entered Bardi Jawi country. Bardi Jawi people are obliged to help each other if there is a stranger looking for trouble (burliga). Strangers wanting to hunt and fish in the Mardnan buru should ask permission. If a Bardi Jawi person from another buru has been granted permission to come into his buru a long time ago, the Law says that there must be a good reason to stop them. He said:

‘...if they been coming there for years and years like visiting the old man or something like that for years, you know, well they got life long pass’.

576 Mr Angus gave more evidence about the gaalu or bielbiel. It is a raft made from balsawood. He has made a gaalu himself for hunting and fishing. Spears or line can be used from a gaalu. It is more suitable then a dinghy for catching large fish like bluebone or snapper because dinghies rock and make noises which frighten the fish. You can get much closer to turtles and dugong in a gaalu. When asked the correct way to dive off a gaalu when spearing fish, Mr Angus said:

‘you jump on side….so you push it sideways, but if you jump from the front it will push away back there. You’ve got a long way to swim…by that time the turtle will take off with that gaalu’.

He used to go hunting for turtles and fishing on a gaalu with the old man who passed away and his uncle Mr Paddy. They would not hunt for dugong because they are a small family and it would be a waste of meat. His uncle is Bardi from his mother’s side. The old man who passed away was Bardi from Mardnan. His mother Rosie Bin Sali has told stories about fishing from a gaalu with her sisters at Lombadina.

577 In cross-examination by counsel for the Commonwealth, Mr Angus said he saw Mr Paddy with a gaalu and also the old man who had passed away. He has not made a gaalu on his own but as a child he helped Mr Paddy make three of them. He would dig up the trees and help skin them. The timber came from Bilgin in Hunters Creek. Gaalu float very well but after a while they can get water logged depending on the type of tree used. The gaalu should not be left at the mooring place. They need to be brought up onto the shore to dry out. When counsel asked if the gaalu needed to be replaced after a while he said:

‘Well, you only use them one day, then bring it back and put it up again and it all dries out again. I’ve never known – this one I helped made with my uncle, it was all right’.

578 He also spoke of ‘lalin’, the turtle mating season also called ‘married turtle time’. It is the easiest time to hunt for turtles. The turtles float near the surface in pairs and drift along the ‘lu’ or ocean current. This makes them easier to catch. He said:

‘we creep right up to him, paddle right up to him close and when they turn, we spear them in the neck’

579 Mr Angus goes fishing when he can. Fishing and hunting for food is important to the Bardi Jawi people. He said:

‘Well, this place has been the source of life for all - you know, ever since. They’re living off that all their life’.

The Law says that he can fish anywhere around the Mardnan area. If he goes to another buru he must ask the people from that place. In the old days he would approach the camp and ask if he could fish. It is common for him to visit and fish with the other people at the same time. Each time he goes fishing in another buru he visits with the people first ‘because I treat their area the same as I want them to treat mine’.

580 Counsel for the State asked Mr Angus about fishing in other people’s burus. Mr Angus said he goes fishing quite often at Pender Bay. There are reefs and creeks in Pender Bay. When he goes to Pender Bay he asks Mr George where the best fishing spots are. He speaks with Mr George before he goes fishing at Pender Bay because it is the respectful thing to do. The two men grew up together and he likes to ‘know how he is going in life’. They often go fishing together on Mr George’s boat.

581 When Mr Angus goes fishing out Lombadina way, he speaks with his cousin Brendan. Generally they make plans two days before he plans to visit and then they all go fishing together. They go fishing around the creeks and reefs with spears. Mr Angus said that anyone can go fishing out at sea without asking permission.

582 He was asked in re-examination whether the Law says he needs to get permission to go hunting or fishing out to sea away from the bays. He said:

‘So you’ve got to – if you’re out there, sometimes if you get turtle or dugong out there, you’ve got to bring – sometimes you bring it to the nearest people that are there and share it with them, then they’ll feel better because, you know, you got it in their area. And seeing that you didn’t ask them, so you bring some back of them fish and you share it with them’.

If there were no catch, he would still ask to visit the buru and perhaps ask if he could stay the night. Sometimes if he gets permission before he goes out, he will ask if he can use the boat from the buru he is visiting. This saves him having to bring his boat around. The life time pass he referred to earlier also applies to fishing out in the open sea. But out of respect he likes to visit with the people from the buru first to let them know he is there.

583 Mr Angus identified Guljaman and Jalan as vacant burus where all of the people had passed away. Any descendents can speak for that land. The Law says that if there is an issue about a vacant buru, people from a neighbouring buru can make decisions. There are Law grounds at Guljaman. The Law ground never dies because the elder never dies. An elder cannot retire. A Nyikina family or a Yawuru would have to ask permission to live on a vacant buru.

584 Mr Angus looked after Joseph Roe, a Goolarabooloo man, evidently as a jawul. Bardi Jawi Law allows a madja to have a jawul from a tribe that is not Bardi Jawi. The sharing of the Law is possible because of intermarriage between Bardi Jawi people and people from other tribes. But even though the jawul is put through Bardi Jawi Law, it does not change the tribe or the country that he belong to. The Law for Goolarabooloo country is the same as for the northern area. Mr Roe is a senior Law man. Mr Angus will help Mr Roe with the Law if need be.

585 Mr Angus did not know his paternal father who was a Jawi man from Sunday Island. He was not familiar with his Jawi relatives until he was older. He was asked to identify Jawi Islands to the east towards Kings Sound. Those islands were also Bardi Jawi country. He said he was not sure if the islands closer to King Sound were Mayala. He was not sure because he grew up on the mainland. He could not tell the Court much about his own country, Sunday Island.

586 Mr Angus is familiar with some of the Jawi bosses including Mr Albert Lennard. The Inalabulu clan covers all the islands in Kings Sound. All the islands are Inabulu. When asked if that included Mermaid Island and Long Island he replied ‘that includes all the islands’. During ceremonies the Mayala people sit with the Inalabulu area. Mr Angus explained that because he grew up in Mardnan he sits in the Baniol area and not in the Inabulu area.

587 Mr Angus has full rights in Mardnan country. But his sister Tracey has more rights because of her father. His children have rights because the old man made a will requesting that all the family look after the country. He said:

‘Same as, you know, if you go to someone you – like Hancock or someone and they write out a will saying that their kids take over everything, well in Aboriginal law they do the same thing where they tell you you’re boss for this place because I do a will for you’.

According to the old man, Mr Angus’s children enjoy the same rights as his niece, his sister, Tracey’s daughter. Mr Angus will pass on those rights to his children. His children can claim Mardnan as their country. He cannot claim Mardnan as his country because he is Iwanyun not Baniol. He said:

‘See, I’m a Iwanyun and I can’t change the name and I’m Bardi, you know, on my mother’s side but I can’t call myself Baniol because I’m from Iwanyi’.

His children have full rights in Iwanyun country through his father. When asked if his children have ‘raya’, he replied ‘well, we don’t worry about that sort of thing’.

588 In re-examination Mr Angus was asked about the kind of rights he has in Mardnan country and said:

‘See now that I’m madja there, you know, I’m the law boss for that area too and everything, I look after all that lawground till the old man passed on and telling stories about them and everything’.

He did not know the name of the right that would allow him to stay in his mother’s country had he not been made boss man.

(xxxi) Joe Davey

589 Joe Davey was 63 years old at the time of the first trial and 65 at the time of the second. His bush name is Jarilgun. His area is Gambarnan around One Arm Point. He speaks for that country along with his brothers. The country is called Ardiol. He grew up on Sunday Island but spent a lot of time at Gambarnan visiting his grandfather. When the mission closed he left Sunday Island. After that he spent a lot of time in Derby working on a passenger boat that went there. He wanted to return to Sunday Island but did not have a boat and the government would not give him the money. His uncle gave him permission to move to One Arm Point, which he did. He has lived on the mainland for more than 30 years.

590 He first gave evidence on day nineteen (27 June 2001) of the first trial at Juljinabur (Brue Reef). He spoke of nguma (Bardi for trepang). The oil from trepang is used in fishing to smooth the ripples in rockpools, so providing clearer vision of what is in the pool. The edge of the trepang is cut off and the oil is spread around the rockpool. Mr Davey has used trepang for fishing in rockpools at One Arm Point but not at Juljinabar because the water is too shallow. His father and grandfather taught him this use of trepang. He has not seen anyone else use it this way at Juljinabar. While at Juljinabar he identified a large rock which he called Minim. He said the rock was given that name because a whale was beached there. It dried up and turned into the rock.

591 Mr Davey gave evidence at the second trial on 1 July 2003. His two sisters, Audrey and Margaret, accompanied him. He was shown a map of the claim area (X-AAI) and identified it as Bardi and Jawi country. The law for the country is Irrganj and Ululung. There is also Anggwuy. Those who can speak for the country are the madjamadjin from that area.

592 He discussed the way in which boys who have been brought back home after going through initiation in the bush are sat down in a line in the order of the buru of their madja. That is to say the jawul sit in the buru of their madja. He mentioned part of the order of those buru and named Mayala, Iwanyi, Inalabul, Ardiol and Barranbar. He is the madja for the jawul Little Eric who comes from Jayirri. Jimmy Ejai is the madja for Jayirri. However when Little Eric goes through the Law he sits in the area representing Joe Davey’s buru. Joe Davey himself was jawul to Jimmy Ejai. So when he went through the Law he sat in the position representing Jimmy Ejai’s buru, namely Jayirri. This is the Law. It was passed on for generations and has been used putting boys in their places. The Law ‘gives us power and brings us all together, Bardi and Jawi’.

593 Mr Davey talked about the how the Law prescribed who could come into his buru. At Law time everybody can come in everywhere. If it is not Law time they have to ask his permission. I take this to mean that access to the Law grounds is universal regardless of which buru they are located in. He went on to say:

‘If its not law, well they have to ask me permission to come round my area.’

594 The Law says that if a Bardi Jawi person from another buru wants to visit Gambarnan buru for hunting or fishing or to camp, that person would ask Mr Davey’s permission. There is no need to seek permission at Law time. If a boy from a different buru, for example Mr Angus’ buru, were seen in Gambarnan buru without permission Mr Davey would speak to Mr Angus and ask him to get the boy to leave. If the boy refused he would be punished. These rules are passed on from the generations to his grandfather, his father and to himself.

595 Mr Davey gave the same evidence about the Nimidiman area or Pindan as had been given by other witnesses who described that area. Any Bardi Jawi person was free to go into the Nimidiman to hunt for goanna or lizard or get bush tucker without having to ask permission. If they were going through a buru to get there they would have to ask permission. If people from outside Bardi and Jawi, such as Karajarn, Nyikina or Nyulnyul wanted to go in there hunting and camping or getting bush tucker, they would have to ask permission. If they didn’t ask permission the bosses, that is the Bardi and Jawi bosses the madjimadjin would have to get them out. There were questions about access by people other than Bardi and Jawi people to the Nimidiman. Like other witnesses on this issue, Mr Davey’s evidence was that an outsider would have to be permission. A Nyulnyul should ask Kevin George as he was the closest to him. If such a person wanted to go into Guljaman he should ask permission from the Sampis. The madjamadjin would be involved in the decision whether a Nyulnyul could go and camp at Guljaman.

596 He discussed burus which had become vacant, either because all of the relevant family had died out or because living descendants of the relevant families were no longer residing there. Outsiders, that is non-Bardi Jawi people, would still have to ask permission to go into an empty buru. They should ask the closest next door neighbour to the buru. In the case of the Guljaman buru which is unoccupied they should ask Mr Sampi. If people like Nyikina or Karajarn misbehaved and went running around in an empty buru going on to Law places, they would get sick and if they were found out then Bardi Jawi madjamadjin would stop them from going there. The Jalan buru is still Bardi and Jawi and is looked after. If anyone wanted to go there they should talk to Jimmy Ejai or Khaki Stumpagee. They were the closest people now living.

597 He talked about the galwa or bielbiel which he identified as a mangrove raft. The first of these was used by Jawi men. He had used a galwa. He used it with Monty Wilfred for hunting turtle. That was when they were 15 or 16. Galwas are easier for catching turtles than aluminium dinghies. His father used to own a galwa and so did his uncle. It appeared from his testimony that he thought galwas were not constructed in Bardi and Jawi country. He said:

‘Galwa came from other side. They used to go right up to that (Irrabawuma) area, that’s that place there.’

He also mentioned the barrawar dugout canoe which he had used when his grandfather was alive. He would take Mr Davey from island to island in a barrawar. He used it when growing up to chase turtle and dugong. This was in Jayirri. The barrawar came from the Mungulmuri area and Wotjalum on the other side of the King Sound Peninsula. They came into Bardi and Jawi country through trading. Bardi and Jawi would trade with the mob with ‘them mob from other side’. They would give them the pearl shell and boomerangs and shields in return for a barrawar. If he were to go fishing in a canoe on the sea, but close to Mardnan he would have to ask Vincent if he could come on that area. That was his buru. If Vincent wanted to come around in a dinghy off the coast of Gambarnan he would have to do the same. He would have to speak to Mr Davey or his brothers.

598 Mr Davey’s statement of substance of his evidence was read into the record in part in relation to Law grounds. There are many Law grounds and special places on the coast. It is possible to go there only when there is a ceremony. He has to look after Law grounds. He doesn’t want to see people moving around and walking on them. He tells them to go to follow the road. He warns them. He doesn’t want them to come to harm. If another boss isn’t looking after a Law ground someone must warn him if there is a problem. He speaks for that country with his elders. He has got to tell the other boss to look after the Law ground. That is his job because he is one of the elders. If Kevin George were to go to a sacred place in Mr Davey’s country he could not refuse him. He had to let him in because that was the Law. For any other reason he could say no. However on the Law side he must let the madjamadjin come to him. If a Law boss tried to stop other bosses from coming on to sacred places when they meet up for Law there would be talk about him.

599 Cross-examined by the State, Mr Davey confirmed that he was 16 when he left Sunday Island. He said that the people living there were a mix of Bardi and Jawi people. His grandmother was Jawi. His father’s first wife was a Jawi person, but his mother was not. He had learned names for places on Sunday Island when growing up. They were Jawi names. The names of the burus, Mayala and Iwanyi which he referred to when describing the order of seating at ceremonies for the jawul were Jawi names. He acknowledged that Nyulnyul people came to those ceremonies. There were Nyulnyul burus. They would sit in that line too. Nyulnyul would just bring their kids to learn the Law.

600 He described circumstances in which visitors such as Vincent Angus had asked permission or let him know that they wanted to come into his buru at Gambarnan. This had happened at the shop at One Arm People where people met each other. He had made arrangements with Vincent to go into his area for fishing. He would walk on the reefs looking for oysters and fish further out from the reef towards the sea for turtle. He would ask Vincent if he could fish beyond the reef if there was plenty of turtle. He had been hunting at Vincent Angus’ buru for dugong and turtle. He used to tell Vincent and an old man who had passed away that he was going to look for dugong around there. They would go hunting around the reef outside the buru. If going to Sunday Island he would ask Khaki Stumpagee. He would let him know that he was coming around there. He had never been ‘much’ at Kevin George’s buru. He has never been asked to leave somebody’s buru. There had never been a case in which Nyikina people were asked to get out of a buru. Nyikina never came around there.

601 Jalan and Guljaman were the only burus which he knew where nobody lives or all. The people have died out. The Jalan people were Bardi. The last of them was an old man called Harry and his brother. He thought they were Bardi people because they were talking Bardi and not Jawi. Kevin George would speak for Guljaman if somebody were in trouble there. He is a Mardnan. He can’t speak for Jalan. If there were a problem on Jalan he could come in as a madja. That is because he is a bossman in the Law.

602 In his examination-in-chief, Mr Davey said that there was only a slight difference between the Bardi and Jawi languages. It was still possible for Bardi to understand Jawi. Cross-examined by the Commonwealth, he said that the Jawi people belonged to Mermaid Island and Long Island. They spoke the same Jawi language on those islands as people spoke at Sunday Island although not exactly the same. Bardi people could understand that language.

603 Under Bardi Law each person has the country that his father had, but sometimes people go by or take their mother’s country. Vincent Angus had taken his mother’s country. His father’s country was Iwanyi. Mr Davey said it was not up to him to explain the reasons for that, that was a matter for Vincent and his family.

604 Mr Davey was questioned about the lu’s between Sunday Island and One Arm Point. He couldn’t recall their names. In re-examination he identified the lu Ilarras a lu that goes through the Nida Pass which I take to have been a reference to Meda Passage. The Ardiolon lu goes around Twin Islands at One Arm Point. Ambulanj is a lu passage not far from One Arm Point. Ambulanj and Tilabiyan are also lus. So too Jayirri and Milamil. He described Milamil as a ‘big lu’. It passes between Jalan and Jayirri. Gardadin is through Jalan and Iwanyi. Lirruljun is a little passage but a lu around Iwanyi. Jirrawanj is a lu in the Running Water area and Iwanyi. Gurir is a big lu that passes between Sunday Island and East Roe Island. Jurundangun is another lu in the Sunday Island area. Iwanyunu is a ‘big, big, big’ lu from Sunday Island to Roe Island. The Jawal is just like a whirlpool. It is at East Roe Island.

(xxxii) David Wiggan

605 David Wiggan was born in 1977 in Derby. His bush name is Jadbu. He gave brief evidence on day 20 (28 June 2001) at a site called Gulbun (No 125) otherwise known as Deep Water Point. He is married and has two children. His traditional country is Borgoron (Cygnet Bay) though his father and grandfather. He is familiar with Bawun (Shenton Bluff- site 59). He identified Ardnagun (site 60) on a map and said he is connected to that part of the country through his father who is deceased. His mother was Mayala. Her country was Unggalinyan (Long Island).

606 Mr Wiggan’s father taught him traditional Bardi ways as a child. He taught him how to hunt for dugong, turtle, stingrays and fish. It is easier to hunt for turtle during laliny when they are mating. Asked if he knew what barnman meant Mr Wiggan replied:

‘It meaning like something has something like you like gets a spirit kind of thing’

He explained ‘uluwa’ as waterspouts that hang off the edge of reefs, and which appear immediately before or soon after rain. The word ‘gararr’ is a spirit woman who comes to a man who is by himself and brings him good luck. They live deep in the mangroves on the islands.

607 In cross-examination by the State, Mr Wiggan said that he had been to his mother’s country. He did not know of a boundary between Mayala and Jawi country. When pressed by counsel, he said his father told him the boundary is the passage between Sunday Island and Long Island. Asked whether the Mayala people are the same as Jawi, he replied:

‘It’s the same like Jawi’.

608 In cross-examination by the Commonwealth. Mr Wiggan could not identify how far south his country went. His country goes north to One Arm Point to Jologo beach. At the time of giving his evidence, he lived at One Arm Point. He has lived there most of his life.

(xxxiii) Anna Phillips

609 Anna Phillips (now deceased) gave evidence on day 20 at Gulbun. She was born on 4 April 1935 at Lombadina Djarindjin. Her country was called Gunnyalin (site 124). It is located west of Gulbun. Maljin (Willie Point site 122) was her grandfather’s mother’s country. Her father Barnangurr was from Gunnyalin country, which includes Gulbun. Her mother Brandy Jacki was from Miligun country. Mrs Phillips’s grandfather’s name was Mandi.

610 In cross-examination by the State Mrs Phillips said that her husband Casper Phillips was from Barrgarrin country. Her father’s country was Gunnyalin in Maljinbur. She had 10 children. Most of them lived with her at Gunnyalin. Asked if her children should take their father’s country, she replied:

‘Well, I wouldn’t know. We try - I try to tell them to come and see people. He don’t want to come. It’s up to him. I not worrying about him. I’m worrying about myself’.

611 In cross-examination by WAFIC Mrs Phillips confirmed that Lambilambon and Gunnayarrlan are vacant burus between Maljinbur and Gulbun. Her brother was in charge of Gunnayarrlan but he died. Counsel then asked ‘there have been no people connected to this place for a long time?’ Mrs Phillips replied:

‘Yes. Well that’s true. We don’t - I never been here. This is the first time I’m here now. I’m further with my land over there, see’.

612 Mrs Phillips identified several photographs (X-AD). The first photograph (AP1) showed part of her place in Gunnyalin. It was a large shed built by her son and brother in-law. The next photograph (AP2) showed a smaller house where her daughter and her husband lived. The third photograph (AP3) showed the house that Mrs Phillips lived in with her grandchildren. The next photograph (AP4) was of the ablution block where the shower was. The fifth photograph (AP5) showed members of her family at the entry to Gunnyalin. Their mailbox was in the background. The sixth photograph (AP6) was a picture of the family mailbox, located at the entry to Gunnyalin. The next photograph (AP7) showed Mrs Philips pointing to a fishing spot in Gunnyalin. The eighth photograph (AP8) showed a Manban tree in Gunnyalin country. The red nuts on the top of the tree were called gaarb and are nice to eat. The ninth photograph (AP9) was of a fruit tree called gulay. The tenth photograph (AP10) was of another kind of fruit tree called gabinj. It could be found in the bushland on the way to Gunnyalin. The next photograph (AP11) showed Mrs Phillips pointing to another fruit tree called gulm. Its fruit was called ‘dorr dorr’. The twelfth photograph (AP12) showed Mrs Phillips and her grandson on the hill in Gunnyalin, holding a branch from a fruit tree called jalgir. The thirteenth photograph (AP13) showed one of Mrs Phillips’s grandsons. He was digging for barnjut. The next photograph (AP14) showed her grandson with barnjut root in his hands. Mrs Phillips said:

‘This is the one that poison the fish. You go to any places where you want to use this. This here, you get a waterhole, you rub this on the sand on a rock and you rub it in the sand and you get all that stuff, and you catch them up at the rock. Then you just walk away for a little while. When you come back you see all the fish are drunk.’

613 Mrs Phillips identified some leaves as gulju, which are barnjut leaves. The fifteenth photograph (AP15) showed her and her grandson by Gunnyalin road. Photograph AP16 showed two boys holding spears called ‘irrol’. The seventeenth photograph (AP17) showed part of Mrs Phillips’s arm pointing to little round fruit called ‘gamuluny’. The next photograph (AP18) showed the Gunnyalin reef and a rope in the boat that was used for fishing. In the following photograph (AP19) Mrs Phillips was pointing to Gunnyalin Island, which is part of Gunnyalin country through her father and grandmother. It was barely visible on the horizon because of the high tide. The next photograph (AP20) showed a large oyster from Gunnyalin. Another photograph (AP21) showed a camping ground in Gunnyalin. The next couple of photographs (AP22-24) showed the ‘albay’ tree and shells from the place in Gunnyalin where the old people used to camp. Photograph numbered AP25 showed an old bark tree. Mrs Phillips said:

‘Our grandmothers ... used to cut out a piece and they used to make like a cradle to put their little babies in ... and they used to take them to fishing and all that’

The last photograph (AP26) showed a tall anthill. In the early days pregnant women would eat from the anthill to help with morning sickness.

(xxxiv) Esther Albert

614 Mrs Albert gave evidence on day 20 (28 June 2001) at Gulbun. Her country is Ngililng. It comes from her father. His name was Jared Albert.

(xxxv) Phillip Albert

615 Mr Albert gave evidence on day 20 (28 June 2001) at Gulbun. His country is Ngililng. It comes from his father. His name was Phillip Albert Senior. His nickname was Pinka.

616 Mr Albert identified several photographs. The first (X- AE) showed his Aunty Clare at her block at Jalguny. The block is in Ngililng country. Ngililng is further north than Bardinarr and Malgin. It is in the next bay to the north of Bandinarr. He had visited the outstation recently. It is north of Gulbun. The second photograph (X-AF) showed a shed at Bardinarr. He had been there recently too and said it looked the same as the photograph. The last photograph (X-AG) showed a rocky part of Bandinar on the other side of the point. He identified the word ‘jalnguny’ as meaning oyster.

617 In cross-examination by the State, Mr Albert said he did not know his grandfather because he had died when his father was young.

(xxxvi) Aggie Ishmael

618 Aggie Ishmael gave evidence during the ‘ilma’ performances on the evening of day 21 (29 June 2001) on Jologo Beach. She said that the ilma was for Mr F Bin Sali’s brother-in-law, Mr Paddy, who was deceased. It represented the birds at Gularrgon country that dive for small fish. The following ilma ‘Gulali’ was about drifting rain from the west. Ilma ‘Rirral’ is about a storm cloud floating along the Gularrgon coast. The final ilma called ‘Gularrgon’ was about water and waves.

(xxxvii) Rosa Tigan

619 Rosa Tigan gave her evidence at the new trial on 1 July 2003 (day 32). Her bush name is Garjabag. The law says that Mrs Tigan belongs to Barlanganan buru. It is her country through her father and grandfather (galu). It is part of the Garrambany area.Garrambany is part of Bardi Jawi country. Mrs Tigan is also connected to her nyami’s country, Pender Bay. She lives at Barlanganan because she prefers to live in her galu’s country.

620 Mrs Tigan was taken through a number of the paragraphs of her statement evidence. During a ceremony her galu would explain the job of the women to her. When the men return from the bush for Anggwuy they sing a certain song. The boss women hears the song and makes sure that everyone is behaving and tells the women to look over at the men returning from the bush. Then all the grandmothers and aunties dance with leaves to welcome the men. The dance is learnt through observation. Everyone joins in like a party:

‘This jawul business, the people get their own boys, each and every one in different areas. When they come out of the bush in Anggwuy in ngurril time, it is the women’s duty to get them and sit them down in the jawul place in the special line. That line is called “rirral”.’

Members of the jawul’s family can help but it is generally the madja’s wife. The jawul eats a special meal and seated in the rirral. The madja and his sons then paint the jawul.

621 Only the boss women are permitted to speak at Ululung. During the ceremony the women face away from the men and are not allowed to be near them. The men sing all night and the boss women tell the other women when to dance. Women are not permitted to leave the ceremony. If they need anything they must ask the boss women. Every one continues to dance until dawn. When the ceremony is over the women walk away and are not permitted to look back.

622 Mrs Tigan explained that women may also have a jawul. Their jawul can be a sister or brother’s child. If the jawul is a girl, the woman gives support and helps with marriage. When a jawul returns from a hunt, he must give the madja the best cut, which is called ‘nimalj’. She said:

‘If my jawul asks for something, I must give it to him. You cant hide anything from your jawul. You look after him and he looks after you’.

Women are forbidden to enter the law ground unless there is a ceremony. Mrs Tigan said that she would get sick without a cure if she entered without permission.

623 Mrs Tigan and her husband are building an outstation in her country Barlanganan (No 72), which is part of Garrambany. Strangers are called ‘arrang amboriny’. Nyulnyul people are strangers. They are not allowed to live in her country. A stranger may be granted permission to hunt for a day but they must then leave. A white man wanting to build a development on Bardi Jawi country must get permission from the Bardi Jawi bosses.

624 Hunting for turtle or dugong is for men only. Her father and grandfather would go hunting on a galwa. Her grandfather was a Baniol Bard man. When he worked for a farmer named O’ Grady, he would use a galwa to hunt around the Galan area. In Djarindjin she has seen her uncle Paddy make galwa at Ngamagun.

625 Mrs Tigan identified the country of the claim area shown to her on a map (X-AAI) as Bardi Jawi country. When asked if they were one people or two, she said: ‘They’re one people. They are one people’. The Bardi Jawi people speak for Bardi Jawi country. They get together for ceremonies during law time. Both Bardi and Jawi go to all of the ceremonies. This has happened throughout her lifetime. The old madjamadjin taught her the ceremonies. Both Bardi and Jawi people participate in the ceremonies. They makes the people feel good and happy. The same ceremony, which involves dancing and singing, is repeated each Law time. Mrs Tigan learnt how to do the ceremonial dancing at One Arm Point because she participated in anggwuy. There are two stages to Bardi Jawi law. The first is anggwuy and the second is uluung. The uulung stage is for the men only.

626 Her daughter Cecilia and her niece Kathleen accompanied Mrs Tigan to the hearing. In cross-examination Mrs Tigan said that Cecilia is Jawi.

627 In cross-examination by the State, Mrs Tigan said Bardi Jawi Law says she should live in her galu’s country. She is a Bard woman and her husband’s country is Jawi. His galu’s country is Mayala country. She has never been to her husband’s island. The Law says that her husband should live in his galu country but Mr Tigan stays with her in her country because she prefers to live in her father’s country. She did not know whether women in the old days would live in their husband’s country. Bardi people can make decisions for the people on the Jawi islands but generally each people make decisions for their own buru.

628 Mrs Tigan is the boss and speaks for Barlanganan. The Law says she can hunt and fish from the land and build accommodation on the land. There are no Law grounds there. If a person from another buru such as Judurd wanted to come into Barlanganan country to hunt or fish, they must first go and see Mrs Tigan. She said that she would give permission as long as they ‘ask in a proper way’. When asked how long that permission would last for she replied:

‘Well, just – if they’re coming for a day, well, they have to come for a day and have to go back. They wouldn’t be able to stay any longer.’

If a visitor was not respecting the country and refused to leave, Mrs Tigan would get help from other bosses.

629 Mrs Tigan identified the Nimidiman country on a map (X-AAJ). A Bardi Jawi person does not need permission to use Nimidiman for hunting and gathering food. It has all kinds of bush food including fruit, yams, lizards and jabarr and gulaman. Strangers, arrang amboriny, must be granted permission by all of the Bardi Jawi people before they enter Nimidiman country. If they are found there without permission they are told to leave. If a stranger refuses to leave, they are forced out.

630 She goes fishing on the beach at Barlanganan. Fish are an important source of food for her family. She also fishes at Lombadina Gararr. When she goes there she lets the people there know. She has never been told not to fish at those other spots. She has never refused to let another Bardi Jawi person fish at Barlanganan.

631 Asked about the case of the deceased buru she said Guljaman is a vacant buru in Bardi Jawi country. All of its people are deceased but their spirits remain. The law says that all Bardi Jawi people are responsible for protecting a vacant buru. Bardi Jawi people from other burus would have to get permission to move to the vacant buru. The granting of permission is the responsibility of the madjamadjin.

Gender restricted evidence from Aboriginal witnesses

632 Evidence restricted to adult males only was taken on a number of occasions at the first trial on 25, 26, 28 and 29 June 2001 and at the second trial on 2 July 2003. I have read the transcript of that evidence. I also requested that the applicants prepare a statement which they would accept as suitable for general publication setting out the effect of the evidence from their perspective. Such a statement was prepared and I have had regard to it in my own overview of that effect of that evidence.

633 The evidence concerned the activities of 3 Creative Beings which were referred to in the statement as ‘No 1’, ‘No 2’ and ‘No 3’ rather than by their Aboriginal names. Each of the beings is associated with a particular ceremony practiced by Bardi and Jawi people. Number 1 is associated with the anggwuy ceremony, Number 2 with the irrganj ceremony and Number 3 with the ululung ceremony. The three ceremonies, like the Beings associated with them, are graduated each being more powerful than its predecessor.

634 Number 1 came from Jawi country and left behind in that country songs and rules associated with the anggwuy ceremony. There was some inconsistency on the question whether the ceremony and the law expressed within it was intended for Jawi people alone or for both Bardi and Jawi people. It may be noted that people from other groups can also participate in anggwuy and other Bardi and Jawi law ceremonies. One such example was the participation of the Goolarabooloo man Joseph Roe in law ceremonies. Such participation however does not confer any right to speak for Bardi and Jawi country. According to the evidence, at the time when Number 1 instituted the anggwuy ceremony Bardi and Jawi people were already living as one.

635 When Number 1 was conducting his ceremony one day, Number 2 came from the north around Uggrang country and took over from Number 1 in Jawi country. Number 2 took the Bardi and Jawi boys to Irrganj which is the name of a sacred place and also of the second ceremony. After the Number 2 ceremony finished, Number 3 took over for the ‘serious business’.

636 Number 2 travelled south along the eastern side of the Dampier Peninsula beyond the claim area then returned to Lajada Bay. He gave the people (including Bardi and Jawi) their language and the songs and law associated with the ceremony which he conducted. The evidence gave a description of the ceremony as performed today. Number 2 gave the people the relationship rules and how boys are to sit in the ceremony. He left them boomerangs, shellfish and whatever else could be taken. He also left them fire for cooking. Number 2 did not differentiate the various buru but divided the people into different regions called them Baniol people, Gularrgon people, Ardiol people and so on. The people from different burus within the Gularrgon region were described in the evidence as different ‘clans’ but nevertheless were said to be ‘Gularrgon right through as one in law’.

637 Evidence was given about how the men were seated in a particular order representing 7 different regions each of which replicated the particular seating arrangement during law ceremonies. The first division in the seating arrangement represents Myala, that is Unggaliyan, and the entire north-east region. The second division represents Iwany. The third division, Inalabul, represents the islands between Sunday Island and One Arm Point. The fourth division represents Ardiol which is the country from One Arm Point to Gambarnan. The fifth division, Gularrgon, covers Swan Point to Ngamagun. The sixth division represents Olonggon covering the country from Ngamagun to Pender Bay or Gurrbalgun country. The seventh division represents Baniol which covers Mardnan to ?? Bay.

638 Evidence was given to the effect the special seating arrangement during the ululung ceremony demonstrates that Olonggon in the south-western Baniol and the south-east operate like a gate which, when shut, ties the Bardi and Jawi together into one tribe.

639 Evidence was also given about how each jawul sits in the regional buru of his madja.

640 Number 3 gave the Bardi and Jawi the ululung ceremony. He came from Swan Point on the mainland and travelled south along the western coast to Wapuna in Karajarri country. The songs he sang were in Bardi and Jawi language but with special variations from country to country. He returned to Ngamagun where he remains today. There was conflicting evidence as to whether Number 3 also travelled to the islands where he left sacred trees and sacred sites, songs and sea currents. Number 3 created the sun, the moon and the stars and particular sacred objects. He buried some of these objects at Ngamagun and others he buried at a secret place in the sea. Number 3 also made the language, the songs and the sacred grounds, special trees for use in ceremony, drinking water umban, honey, kangaroos, birds, emus, wild turkey, goanna and trees to make spears, boomerangs and shields.

641 There was evidence about the way in which the ululung ceremony is performed, about how the initiate learns the laws for the stars, the islands, the sea currents, thunder and lightning and the animals and about how, under Bardi and Jawi law, a boy cannot look for a girlfriend or marry until he has been through ceremony and reached the point where he is painted with red ochre.

Historical evidence

642 The applicants relied upon historical evidence provided by Dr Fiona Skyring who prepared two reports received in evidence. The first was dated 20 October 2000 (X-AAT). The second was dated August 2001 (X-AU).

643 Recorded observations of Aboriginal people in the claim area go back to the mid seventeenth century. According to Dr Skyring’s first report, secondary accounts of the voyages of the Dutch explorer Abel Tasman indicated that in 1644 he landed at Roebuck and Carnot Bays on the coast of the Dampier Peninsula and observed Aboriginal people there.

644 William Dampier, the English maritime explorer, sailed the vessels Cygnet and Roebuck from the Philippines to England in 1687 and in the course of that voyage landed on the north west shore of King Sound at Cygnet Bay. He recorded observations of the Aborigines of the area including his often quoted description of them as ‘the miserablest people in the world’. He recorded that as they ran away from his anchored ship they called out the word ‘gurri’. This was said by the applicants’ linguist expert, Dr Metcalfe, to be consistent with the Bardi word ‘ngaari’ which refers to a malevolent spirit. The people whom Dampier saw at Cygnet Bay lived in groups of 20 to 30. They had no houses and, according to Dampier, no boats and no canoes. Dr Skyring however noted that later European explorers recorded the Aborigines use of rafts made from tree trunks.

645 Dampier observed the use of stone fish traps and that, at low tide, the people would seek cockles, mussels and periwinkles. Whether the catch was small or large:

‘... everyone has his part, the young and tender as well as the old and feeble.’

He saw little in the way of weaponry but some of the people had wooden swords and others a kind of lance. He described the sword as ‘a piece of Wood shaped somewhat like a Cutlass’. The lance was ‘a long straight Pole, sharp at one end and hardened afterwards by heat’. Dampier and his crew remained ashore at Cygnet Bay for about two months. The first landing was accidental due to his taking a route home from the Philippines which was south of the regular route and being forced by winds even further south.

646 In 1801 Nicholas Baudin led a French scientific expedition to survey the coastline of ‘New Holland’. His ships first made landfall at Cape Leeuwin on the south-west coast of Western Australia in May 1801 and then travelled north. When they arrived at the Dampier Peninsula about 50 kilometres north of the site of present day Broome, Baudin recorded in his journal:

‘Throughout the afternoon we saw a great number of fires all along the coast. But some of them were so large, that it seemed to us that they could not be where the natives were. They were probably conflagrations in some parts of the forest, for their (sic) was so much smoke that it blotted out the sky.’

He returned in 1803 with another schooner and made a further survey of the north west coast. However he made few landings. His main contribution to the knowledge of the coast was in its cartography.

647 In 1821 Captain Phillip King sailed the Bathurst along the coast of Australia from the Torres Strait to Cape Latouche Treville, south of Roebuck Bay. On 19 August 1821, he sighted Cape Leveque. As the vessel proceeded along the western coast of the Dampier Peninsula, no Aborigines were seen on any of the islands however there were many ‘large smokes’ on the horizon behind Cygnet Bay. Of the western coast of the Dampier Peninsula from Carnat Bay to Point Coulomb, he said:

‘The smokes of fires have been noticed at intervals every four or five miles along the shore, from which it may be inferred that this part of the coast is very populous.’

648 Dr Skyring concluded from the European maritime explorers’ accounts that Aboriginal people occupied the claim area before 1829. They exploited marine resources by the construction of tidal fish traps. They collected shellfish at low tide. They constructed wells to get access to fresh water. Dampier used such wells for his own resupply. According to Dampier’s record, the Aboriginal people at Cygnet Bay did not welcome his intrusions and on a number of occasions threatened the Europeans with spears. Abel Tasman had also received a hostile reception from Aboriginal men armed with spears. Dampier acknowledged that he and his men intruded on Aboriginal land and that by going ashore they had deterred the people from using some of their fishing places.

649 Dr Skyring sought to fit Dampier’s interaction with the indigenous people, including his own attempts to recruit their labour, into later patterns of exploitative European-Aboriginal contact. There is considerable space devoted, in her later report, to the history of exploitation of Aboriginal people especially by the pearling industry in the Kimberleys in the late 19^th century. There is a significant difference of perspective between her account of that history and the preliminary history provided by the State’s witness, Dr Neville Green. It is not the function of the Court in this case, to make normative judgments about such matters. That is not to say that the impact of colonising activities is not relevant to the continuity of Aboriginal connection with the country in the claim area.

650 Dr Skyring’s first report outlined the formal history of the colonisation of Western Australia. In April 1829 Captain Fremantle raised a British flag at the Swan River and claimed for the British Crown the remainder of the continent not included in the Colony of New South Wales. On 18 June 1829, James Stirling, the first Governor of the new colony, read a proclamation declaring the western part of the continent to be British territory and its inhabitants and colonists subject to the laws of England.

651 The proclamation made pursuant to Geo IVc 22, The Swan River Colony Act 1829, was in the following terms:

‘Whereas His Majesty having been pleased to command that a settlement should forthwith be formed within the territory of “Western Australia”, and whereas with a view of effecting that object an expedition having been prepared and sent forth, and in accordance with His Majesty’s pleasure the direction of the expedition and the Government of the proposed settlement having been confided to me, and whereas in pursuance of the premises possession of the territory having been taken, I do hereby make the same known to all persons whom it may concern, willing, and requesting them to duly regulate their conduct with reference to His Majesty’s authority, represented in me, as good and loyal subjects ought to do, and to obey all such legal commands and regulations, as I may from time to time see fit to enact, as they shall answer the contrary to their peril.’

For the purposes of recognition of native title the annexation of the colony may be taken to have been effected as at the date of the proclamation.

652 Dr Skyring’s report considered the history of the presence of Aboriginal people on and around the claim at the time of the establishment of the colony and/or the time of contact and their activities and response to the coming of non-indigenous people.

653 When the colony was established in 1829 there were no European settlements in the Kimberley. Phillip King had surveyed the north-west coast in 1829 but it was not visited again by Europeans until the late 1830s. Commander J. Lort Stokes, travelling on the HMS Beagle, was commissioned in 1837 by the Admiralty to explore parts of the north-west coast of ‘New Holland’ and also to survey the Bass and Torres Straits. At that time, as Stokes wrote, the north-west was the least known of the Australian shores.

654 Stokes’ account of his explorations included observations of the coast north of Roebuck Bay along the Dampier Peninsula coastline in January 1838. The coast seemed particularly populated between Roebuck and Beagle Bays. The smoke from native fires was constantly to be seen. In all cases these signs of human existence were confined to the neighbourhood of the sea – Stokes JL, Discoveries in Australia: with an account of the Coasts and Rivers explored and surveyed during the voyage of HMS Beagle in the years 1837-38-39-40-41-42-43 Vol 1 (1846) Facsimile edition 1969 pp 1-2.

655 A party from Stokes’ expedition went ashore at Point Swan to look for fresh water. As they approached the shore they were warned of the presence of Aboriginal people by a white ensign displayed on the ship. They saw the shore ‘thronged with savages’. They were brandishing spears and whirling arms round and round with ‘windmill-like velocity’. The party pulled to shore but did not venture inland for water. The next day they returned with more men and tools for digging a well. Again there was a strong force of Aboriginal men who watched them from a distance. On the third day when they were digging a well another group approached them. To warn them of the Europeans’ technological superiority, a rocket was fired from the ship. The Aborigines did not appear again for a few days. Subsequently, a small group of them came down on the beach. They were friendly in their manner. They were given presents of beads but received them ‘with an indifference almost amounting to apathy’. In early February 1838, Stokes went ashore again near Point Swan. He travelled inland for about 7 miles. He saw the effects of many fires.

656 As the Beagle journeyed south through islands east of Point Swan Stokes observed a ‘native raft’ which he described as follows:

‘It was formed of nine poles pegged together, and measured ten feet in length by four in breadth... All the pines were of the palm tree, a wood so light, that one man could carry the whole affair with great ease. By it there was a very crude double-bladed paddle.’

657 At Cygnet Bay Stokes and his crew found a skeleton whose bones were packed in a cylindrical pattern and shrouded in bark. Some Aboriginal men arrived and offered no resistance when he and his party removed the bones which became part of a collection at the museum of the Royal College of Surgeons. Stokes observed that the people he saw on the northern Dampier Peninsula each had an upper front tooth missing and that some of the men were circumcised. The people ‘resembled the natives previously seen at Point Swan’.

658 Dr Skyring next referred to an account by Frederick Panter of an expedition to search for pastoral lands along the Glenelg River in the Kimberley in 1864. Panter sailed along the west coast of the Dampier Peninsula in the schooner, New Perseverance. The vessel anchored close to Cape Borda on the northern part of what he called Dampier’s Land. Grass could be seen growing similar to that at Camden Harbour. Several times between Cape Borda and Roebuck Bay they sailed close into shore. The ‘natives’ were plentiful. Some of them came down to the beach.

659 Dr Skyring described the interaction between the pearling industry and Aboriginal people particularly in the early 1880s. The northward migration of pearlers from Cossack, near Roebourne, to Beagle Bay had a profound impact on the Aboriginal population. She referred to the historical record to show that many Aboriginal divers were kidnapped and forced to work on pearling luggers for rations of water and flour. The history which she recounts is one of exploitation, including kidnapping and slavery.

660 Until pearlers moved their operations into the area in the early 1880s the extent of contact between the Europeans and Aboriginal people in the claim area had been limited and sporadic. The impact of such contact as there was was negligible. There were no European settlements on the peninsula. Proposals to establish a government-funded settlement at Beagle Bay were rejected as a waste of money. Until the 1880s Aboriginal people in the claim area lived relatively unaffected by the expansion of European settlement in the south and along the north-west coast.

661 A ‘Preliminary History Report’ was prepared by Dr Neville Green on 15 November 2000 and tendered by the State (X-AAC) at the first trial. As described in its introduction, Dr Green’s preliminary report was intended to provide a general history of the claim area and a brief history of the Aboriginal experiences of the people within the claim area. Particular attention was given to the role of Christian missions, the influence these had as ‘attractors’, and the impact they may have had on traditional Aboriginal beliefs in the region. He did not examine pastoral history in any detail and did not go much beyond 1970. As Dr Green pointed out at the beginning of the report he had not researched all the primary and secondary sources and had made no real analysis of anthropological sources relating to Aboriginal people of the region.

662 Dr Green referred first to the accounts of early coastal exploration of northern Australian by Dampier in 1688, King in 1822 and Stokes in 1837. He cited a passage from King’s account of his observations while steering between two rocky islands off Cape Leveque on 9 February 1822:

‘On one of the sandy beaches at the back of the bay near Park Hillock, so called from its green appearances and being studded with trees, eight or ten natives were observed walking along the beach close to the low-water mark, probably in search of shell fish; some of them were children, and perhaps the others were women, except two or three who carried spears; a dog was trotting along the beach behind them.’

663 Allan Cunningham, a botanist travelling with King, landed near the northern tip of Goodenough Bay. King reported his observations:

‘The traces of natives, dogs, turtle bones, and broken shells were found strewed about; and several fireplaces were noticed that had very recently been used; a fresh water stream was running down the rocks into the sea, and at the back of the beach was a hollow, full of sweet water. Near the fireplaces Mr Roe picked up some stones, that had been chipped probably in the manufacture of their hatchets.’

Another member of King’s party, Baskerville, later reported:

‘The foot-marks of men and boys were evident on the sand below the high water mark, and the remains of fire-places, and where the natives have been manufacturing spears, were of recent date ... at one of the fire-places, they found a very large voluta, that seemed to have served the purpose of a water-vessel; it was fifteen inches long and ten inches in diameter.’

664 Under the heading ‘Land exploration’ Dr Green cited to Alexander Forrest’s expedition of 1879 from Beagle Bay. At that time there were pearling luggers in the Bay. Forrest chartered a small boat from the pearling masters to take him to the Lacepede Islands where he obtained some provisions from a Mr Wynn. Dr Green inferred that Europeans were in occupation both at Beagle Bay and nearby Lacepedes in 1879. In a report dated 19 April 1879, Forrest said that the expedition had met large numbers of Aborigines but had not been molested. About 50 or so would turn out daily at the Beagle Bay camp. They appeared to be very fond of flour and tobacco. Some of the Aborigines could speak some English, suggesting they had contact with the crew of the pearling luggers.

665 Before Forrest departed for Fitzroy River he and his party were invited to a corroboree given in their honour. During their stay at Beagle Bay the Aborigines kept them supplied with fish and crabs which they traded for goods. About 15 of the Beagle Bay Aboriginal men travelled with Forrest and his party for several days but it appeared that when they reached the limits of their traditional territory or legitimate access they disengaged themselves from the explorers.

666 Dr Green described the history of European-Aboriginal contact post-colonisation. It began with the pearling industry. His account of contact with that industry contrasted with the account given by Dr Skyring in her second report to which reference will be made below. He said that the employment of Aborigines in the pearling industry during the 19^th century ‘was strictly regulated by legislation’. He referred to the Pearl Shell Fisheries Regulation Acts of 1871 through to 1887. Aboriginal males engaged on pearling luggers had to be employed under signed and witnessed work agreements. These agreements were policed by the Inspector of Fisheries. The enforcement of the Acts was otherwise not discussed. Interaction with pearling removed people from their traditional homelands. Although pearling masters were legally bound to return divers to their home territory at the end of each season this did not always occur. Some who went diving died because of illness, shark attacks or misadventure. A cyclone which in 1887 destroyed 5 schooners and 30 luggers with the loss of between 200 and 300 divers and crew.

667 Before missionaries came to the Peninsula in 1884, Aboriginal people had established work and trade relationships with the pearling masters. As employees they would have been separated from their families, taken considerable distances from their home localities, brought into contact with other groups of Aborigines and exposed to Europeans for extended periods. The position changed when the Pearl Shell Fisheries Act was amended so that women and boys could not be employed on board pearling luggers although they continued to be used on the beach in shelling activities. Technology brought about further change with the development of diving apparatus for deeper water pearling. Few Aboriginal men were employed on the luggers. Asian crews were used more frequently. There were however ongoing concerns that lugger crews were enticing Aboriginal women and boys and girls into sexual relationships.

668 In the 1860s pastoral companies began operating in the southern Kimberley in the vicinity of the present day town of Broome. Alexander Forrest’s 1879 exploration was followed by major pastoral activity in the Kimberley. In 1883 Broome and Derby were proclaimed as towns. The development of the industry coincided with the discovery in 1884 of payable gold in the Halls Creek district. This attracted thousands of prospectors to the Kimberley and led to the proclamation of the town of Wyndham in 1886.

669 Dr Green noted that reports from police patrols in the area north of Broome contained occasional references to pastoral stations visited and Aborigines seen at those stations. However the names of the employees were rarely recorded. Weedong Station operated by Messrs Male and Bell was established in about 1906. According to EG Gibson in a 1951 thesis Henry James O’Grady leased an area of Cygnet Bay named ‘Mandarna Station’ in 1909. O’Grady’s occupation was confirmed in the Broome District police records. There is some evidence that Sydney Hadley who was the missionary to Sunday Island claimed that he and Harry Hunter in partnership had been leaseholders of all the land ‘hereabouts’ since 1884. The extent of these pastoral leases was not defined.

670 In February 1908 an Aborigines Inspector, Isdell, recorded 5 pastoral stations along the coast between Broome and Cygnet Bay. Three of these collectively employed on a permanent basis 18 males, 19 females and 6 boys under the age of 16. They also supported a further 13 people as ‘indigents’. However Dr Green observed that by about 1930 most of the land that may have formed earlier pastoral leases had become mission grants or reserve land for the use and benefit of Aborigines.

671 Dr Green also discussed police-Aboriginal relationships. The police files for west, central and east Kimberley document a violent period in Australian history which began soon after pastoralists and prospectors moved into the Kimberleys in the 1880s. A massacre of Aborigines near Cygnet Bay is referred to by Mary Durack, ‘The Rock and the Sand’, Constable London 1969 at 25-26. Dr Green suggested that this was most likely to have been the shooting of a number of Aborigines following the killing on 29 May 1985 of Captain Rickinson, Master of the schooner Pearl and ‘Chan’ Shenton. Later police reports indicated that at least 7 Aborigines were killed by police in incidents at various locations between Swan Point and on offshore islands in the course of patrol from 4 June to 5 July 1885. Gibson in his 1951 thesis wrote that one of his informants, Paddy, a Jawi man then aged 65, had ‘vivid memories of the occasions when the white punitive expedition shot many of his tribe in cold blood’.

672 Police records for the region allow researchers to identify coastal campsites and native wells and provided some indication of the number of Aborigines in the region. Dr Green indicated that police files he had seen did not contain any detailed information about traditional Aboriginal lifestyles.

673 A police patrol report from the 1880s referred to the murder of an Aboriginal man called Waligun or Cockagin. His body was found wrapped in paperbark and placed in a tree. Another report in 1898 by PC Zum Feld referred to a schooner the ‘Willie’ which had an all Aboriginal crew. Complaints of mistreatment of Aboriginal people, including rape and the supply of alcohol, were investigated and mentioned in his report. There was a report by PC Percy in 1899 of Aboriginal workers absconding from pearling luggers. The same report indicated that there had been a meeting of Sunday Island and Swan Point Aborigines at Swan Point. In 1903 two Aboriginal police assistants absconded at Beagle Bay. Constable Napier reported that they had returned to their own country at Gilgully Creek. One of the assistants named ‘Gunner’ had been too frightened to stay in the Beagle Bay area any longer believing that Beagle Bay Aborigines would bewitch or sing him to death.

674 There was ongoing concern about contact between Aborigines and pearling lugger crews involving both sexual liaisons and the supply of alcohol. Dr Green observed that when writing patrol reports constables did not always distinguish between Beagle Bay and Beagle Bay mission. It was therefore not clear whether the people referred to in those reports were under the ‘control’ of the mission or camping at the Bay. He regarded the distinction as important when attempting to determine at what point in history there was some identifiable shift from independent hunting and gathering towards a mission dependence. This observation seemed to embody an assumption that there was such a shift, an assumption challenged by Dr Skyring in her second report.

675 In February 1908 the Aborigines Inspector Isdell estimated that there were 400 Aborigines between Broome and Swan Point with the area from Cygnet Bay to Derby being occupied by about 80 Aborigines. However Dr Green points out that Isdell’s estimates are not supported by the camp to camp police patrols which suggest a population of closer to 300 people overall.

676 Dr Green outlined the contact history of Aborigines and the Christian missions in and near the claim area. A mission was started at Disaster Bay in March 1884 by Father Duncan McNab. Another mission was established at Beagle Bay in 1890 by Bishop Gibney with two French Trappist monks whom he brought there. Aborigines Inspector Charles Straker spent three days at the Beagle Bay mission in August 1893. He wrote an 8 page report to the Secretary of the Aboriginal Protection Board in which he described the Aborigines, the population and the spiritual teaching undertaken by the missionaries. At that time the mission had about 500 sheep, 90 cattle and 2 horses. Six Aboriginal men had signed 12 month work agreements and handled the stock and any other tasks required by the mission. Nine acres had been cleared for gardens. The spiritual program of the mission as explained to Straker was to ‘civilise and Christianise the natives’. Subsequently Beagle Bay became a receiving place for part Aboriginal children removed from their mothers pursuant to the Aborigines Act 1905.

677 In 1906 a mission station was established at Cygnet Bay under the supervision of Father Nicholas Emo. It received 9 pence per day, per person, from the government for each of the 20 to 25 Aborigines at the mission. The mission was on a 10 acre lease about 250 yards from the beach. The depot buildings were only about 200 yards from a freshwater well used by pearling luggers. Inspector Isdell, who visited the mission in 1908, observed 30 luggers and 2 schooners with 200 coloured men and 12 whites laid up from November to March less than 2 miles by water from the mission.

678 In 1908 Father Nicholas (as he is called in Dr Green’s reports) intended closing the Cygnet Bay mission to join a Catholic expedition to open a new mission on the Drysdale River, now Kalumburu. Some of the Cygnet Bay people did not want to go to Beagle Bay. Isdell wrote that ‘... they are of a different tribe and old enemies’. He intended to make an arrangement with Mr Harry Hunter at Boolgin, Cape Leveque to feed the rest. There were already about 100 Aborigines at Boolgin, many in the employ of Harry Hunter.

679 In 1892 the land which would comprise the Lombadina mission had been purchased by Bishop Gibney for 500 pounds. It covered 100,000 acres. The previous owners were Messrs. Hunter and Hadley. The Disaster Bay mission was abandoned in 1905 and the Puertollano family transferred to a property named Lumbingun near Lombadina which they operated by an arrangement with the church. Father Nicholas assumed control of the Lombadina mission in 1910 after returning from Kalumburu and continued in charge of it until his death in March 1915. The property then passed into the control of Thomas Puertollano. In 1916 it was purchased by a Broome resident for his brother, Father John Creagh, Pro Vicar Apostolic of the Kimberley District. The land was thereby returned to the control of the Catholic Church. When Father Nicholas left Cygnet Bay, Harry Hunter was appointed a protector of Aborigines and undertook to provide rations at Boolgin and at Disaster Bay in King Sound. In 1910 the ration depot was closed and stored rations were removed by police to Lombadina where the Catholic Church was intending to establish a new mission. When Hunter lost his contract, elderly and injured people at Boolgin transferred to Lombadina a few kilometres away.

680 The Sunday Island mission was the first protestant mission to be established in the west Kimberley. Sydney Hadley who founded it in 1899 had been engaged in pearling activities on the Kimberley coast since 1877. He kept the mission viable for the next 25 years by encouraging the islanders to collect trochus shell for export to France where it was cut and polished into buttons. EG Gibson who wrote his Masters thesis on the history of the island believed that it may previously have been Jawi territory. The Jawi population had diminished because of the punitive expeditions and the capture of the island’s Jawi women by pearling crew. Remaining Jawis were further reduced in numbers by introduced disease. As the intermarriage of Jawi and Bardi became common with the predominant language being Bardi according to Gibson ‘there was ultimately no other possible result than a fusion of the two elements with the infiltrated Bardi predominating’. According to Dr Green the available documents make no reference to Hadley attempting to destroy the traditional culture or to replace it with Christian beliefs.

681 An independent report on Sunday Island was compiled by the Derby Resident, Magistrate Dr Wace in 1904. The population at that time was between 80 and 90 persons. Some of them were camped on the other side of the island from the mission. Dr Wace reported that Aborigines living there were living ‘more under their natural conditions than at any pastoral station that I have seen on the mainland’. He observed that the men would hunt fish, get dugong and come and go as they wanted to. Hadley wanted the Protector of Aborigines to extend the boundaries of the mission to include nearby islands so there would be authority to exclude pearling boats. He was supported in this by Dr Wace. Dr Green’s report does not indicate that the boundaries of the mission reserve were extended. The mission’s total income for 1907 was just over 282 pounds. 111 pounds was derived from the sale of tortoise shell, pearl shell and freight cartage.

682 On a visit to Sunday Island mission in May 1908 Inspector Isdell reported:

‘There are really no natives belonging to Sunday or other islands, they all belong to the mainland, and they use the islands for hunting and fishing.’

In another report in 1908 he observed that the Aborigines would frequently travel from island to island in their catamarans or native canoes. The mission population was 110 of which 60 to 70 were fit for labour.

683 In 1910 Mr and Mrs Smith of the United Aborigines Mission (UAM) took over the management of the mission while Hadley was away in England. In 1911 Father Droste recorded a visit to Sunday Island and observed:

‘The missionary and his charges lived on fishing and sale of mother-of-pearl and turtle shells. The white man had lived with the islanders for 10 years, making their customs his own. Though he taught them to pray and sing, he otherwise placed no great demands on them of Christian faith and morals.’

The mission was transferred to the UAM on 30 December 1922. Dr Green observed that the aging Hadley exerted very little influence upon the Aboriginal population on Sunday Island. He did not interfere with traditional religion, culture and custom. His own behaviour was modified to accommodate local conditions.

684 The UAM which included adherents of the Baptist, Methodist and Church of Christ denominations, brought what Dr Green described as ‘some semblance of order’ and a radical shift in attitude which was opposed to many traditional Aboriginal customs. The missionaries of this era were committed to the saving of souls rather than the development of the community. This included the modification of certain Aboriginal customs regarded as ‘the work of the devil’. The United Aborigines Mission replaced traditional platform burials with underground burials. It opposed the traditional tooth avulsion. It disapproved of polygamy.

685 Three years later the UAM committee proposed closing the mission. In 1926 the Chief Protector of Aborigines, Mr Neville, suggested that the Sunday Island mission be transferred to the mainland. He commented on the poor economy offered by the island and proposed the transfer of its population to the north-east shore of King Sound. This was held in abeyance until 1932. The Sunday Island population was eventually transferred to a mainland location in 1935. A UAM request to retain access to Sunday Island as a depot for shellfishing purposes was approved.

686 Within a year the mainland mission experienced serious problems. Several deaths there triggered an exodus of people back to Sunday Island. The mainland mission known as Wotjulum was thought by the UAM missionaries to be the local name for the mission site. It was incorrectly named. By 1939 the Aboriginal population had left Wotjulum and it was eventually closed down. The government subsidy for Sunday Island ended and arrangements were made for the transfer of its Aboriginal population to Lombadina.

687 In the absence of missionaries the Sunday Island community managed its own affairs. Wiggan took charge of men’s meetings. Katie Wiggan and Maggie led women’s meetings and Tigon (Tigan) looked after day and Sunday schools. The missionaries returned in 1944. A report on Sunday Island in May 1945 by Inspector L O’Neill referred to a poverty stricken atmosphere about the mission which would be difficult if not impossible to dispel without a good deal of outside financial assistance. The only useful purpose of the mission was the distribution of rations to the Aborigines and a certain amount of schooling for the children and the issue of medicine for the sick, apart from the religious teaching of the missionaries.

688 Preston Walker, who worked as the missionary on Sunday Island in 1945 wrote, in a prayer letter to the UAM supporters in 1947, that despite 25 years of evangelical testimony there were still corroborees, outbursts of rage, fights and various taboos such as ‘men’s country’ which he said occupied half of the only decent piece of country on the island and which was barred to all women and children. Ruth Allen in a letter from Sunday Island in 1950 wrote:

‘These old men are the leaders of the tribe, and it is very hard to touch them. They have heard the Gospel many times, and still prefer ‘darkness rather than light’.’

UAM missionaries supervised expeditions on the lugger ‘Balfour’ to Brue Reef where trochus shell was collected at low tide. In 1949 this was the mission’s only source of income. However as plastic replaced shell in the manufacture of buttons trochus shell lost its value and the mission became increasingly dependent on government rants and donations.

689 Dean Brown, a master pearler, tried to establish a pearl shell industry in the area in 1957 and employed a number of Sunday Island people. The mission offered some employment but made no systematic effort to organise work. The mission population was 82 adults and 58 children.

690 Some families were persuaded to move to Derby as living conditions on the island deteriorated. The population peaked at 140 in 1954 and dropped to 81 in 1961. In 1962 the Sunday Island mission was closed and children of school age were placed in a hostel at Derby and enrolled at the local junior high school. Parents who wanted to be near their children also left Sunday Island and moved to Derby. Only traditionalists and pensioners were left until 1964 when the mission refused to transport supplies and the remaining people were evacuated to Derby.

691 In 1969 two elders, Bill Ah Choo and Tommy Thomas, took their families back to Sunday Island with the support of a former missionary, David Drysdale. However they realised it was no longer practical to live on the island and a vanguard of Bardi set up camp on the mainland at One Arm Point. In 1975 a housing program was commenced and a government school had a teacher taking classes in a bough shed on the beach. According to Dr Green many of the descendants of the Sunday Island Bardi today live at One Arm Point and at Lombadina Djarindjin in the south-west.

692 Dr Skyring prepared a Further History Report (X-AU) dated August 2001. She described the scope of the report at 5 thus:

‘In this supplementary report, I address the history of people in the Bardi and Jawi claim area from approximately the 1880s to the 1980s. This covers the period from the early and violent contact between Aboriginal people and the predominantly British-Australian pearling masters, to the era after 1969 when the Bardi and Jawi applicants returned to the areas they identified as their country and established the communities which exist to this day.’

693 In dealing with the history of pearling in the claim area she contested Dr Green’s interpretation of Aboriginal involvement in the industry. Although she did not say so in as many words, Dr Skyring effectively cast Dr Green’s account of Aboriginal interaction with the pearling industry as an anodyne narrative which did not pay sufficient regard to its violent and exploitative character. In the early years of the pearling industry on the Dampier Peninsula and in the later 19^th century, according to Dr Skyring, Aboriginal divers and crew were not employees in the accepted sense of the word. They were often kidnapped and forced to work under dangerous conditions. Some were killed in the process. The report of the Royal Commission on the Condition of Natives by Commissioner Roth in 1905 found that the contract system by which Aboriginal workers were ‘signed’ or indentured to pastoralists and pearlers for a particular time period was widely abused. The regulations designed to protect mostly illiterate Aboriginal workers in the north-west who had no or little fluency in English were ineffectual. Commissioner Roth said there was ‘nothing to prevent the greatest scoundrel unhung, European or Asiatic, putting under contract any black he pleases’. Dr Skyring contested Dr Green’s opinion that the pearling industry was ‘strictly regulated by legislation’. Protective aspects of the legislation were rarely enforced. Until new diving technology brought changes to the industry in the late 1880s pearling on the north-west coast of Western Australia was a virtually unchecked system of forced labour.

694 Dr Skyring went into considerable detail to support her thesis. She referred in particular to police reports. The detail of her references in this respect gave substantial support to her primary contention. However, in the end the Court is not assisted by the details of that history or the allocation of historical blame in deciding the issues which it has to determine.

695 Dr Skyring considered the history of missions and ration depots. She referred to the apparent assumption in Dr Green’s report that at some point in history there was an identifiable shift from independent hunting and gathering towards a mission dependence. She argued that such a shift was not supported by information on the historical record. For most of the twentieth century mission stations and ration depots in the claim area relied upon Aboriginal labour and the sale of sea resources traditionally gathered or hunted by Aboriginal people. This was particularly so on Sunday Island while Sydney Hadley was the missionary there. The food hunted and gathered by Aboriginal people in the Bardi and Jawi claim area was the basis of their diet and for some the only source of food. The Aborigines Department subsidised the institutions to a certain extent by paying for rations of very basic food, clothing and blankets but that none would have survived were it not for the sea resources and labour contributed by the Aboriginal people who had regular or intermittent contact with the missions.

696 Sydney Hadley was prepared to assist in taking people from Sunday Island to nearby islands. He accepted their continued reliance on bush food and sea resources. In 1902 he took some of the school children to nearby Roe Island which was ‘abundant in native fruit, yams, dugong and turtle’. Some of the school boys at Sunday Island wrote of how 10 men went out in a dinghy and caught a turtle and a dugong. In 1907 Hadley took some of the school children to Lascepede Islands where they caught a large green turtle which they brought back ‘with great delight to their parents and countrymen’. Mr Hadley gave evidence to the 1904 Roth Royal Commission about the food which he provided for Aborigines on Sunday Island. Dr Skyring observed that the food which was provided as payment for labour, would not have amounted to an adequate diet. It was reasonable to assume that the people relied on sea resources and bush food for essential proteins and vitamins.

697 In 1904 the resident magistrate of Derby Richard Wace visited Sunday Island. He opposed plans to send a white married couple to assist at the mission. It was no place for a white lady. He said:

‘It is not uncommon to see a boy plastered with blood from head to heals (sic), the subject of tribal rites – men & women all but for loin cloths unclad often.’

He described the Aborigines at Sunday Island as ‘living more under their natural conditions than at any pastoral station that I have seen on the mainland’.

698 In 1911 trochus was the main source of income for the island. It was sought by other missions or stations in the claim area. On Dr Skyring’s interpretation a pattern of dependence on Aboriginal labour appeared from the records of the Sunday Island mission and other white settlements in the area.

699 In 1922 Hadley left Sunday Island because of ill health. It was then taken over by the UAM. Dr Skyring agreed with Dr Green that the UAM was not as tolerant of Aboriginal culture as Mr Hadley had been. However, new missionaries did not disrupt the routine developed under Hadley. The mission continued to rely upon trochus and pearl shells collected by the Aboriginal people as its source of income.

700 1935 saw the relocation of the mission to Wotjulum on the mainland near Yampi Sound. Aboriginal people from Sunday Island who were relocated to Wotjulum returned to Sunday Island from Wotjulum which was abandoned in 1938.

701 In 1939 when Departmental Inspector McBeath reported on the operation of the Sunday Island mission he wrote that Aboriginal people traded the trochus for food at the mission store and that some of them had boats. Fishing and gathering from the surrounding reefs was their main source of food. There was not enough food to go around when the fish catch was poor and the people were poorly clothed.

702 Dr Skyring’s report suggested that without the work of Aboriginal people and their gathering and hunting of sea resources for trade and for food missions and other white settlements in the Bardi and Jawi claim area would have required substantial church or government assistance to survive. In some parts of the claim area during the twentieth century there was no ration distribution so that Aboriginal people had to rely entirely on what food they could hunt and gather and what resources they could trade.

703 In relation to the influence of the missions and depots generally, Dr Skyring argued that they did not attempt to suppress the traditional lives of their Aboriginal residents nor did they stop Aboriginal people from moving around for work, ceremony or food. The missionaries’ approach to Aboriginal culture was not always tolerant. However, for the most part, the missions and other white settlers in the claim area were unable to prevent people from continuing their traditional practices nor could they prevent them from living permanently away from what they referred to as ‘their country’.

704 An interesting extract from a report by Father Nicholas of Lombadina in 1911 stated:

‘The number of all the natives of the Camp in this Mission, varies from 60 to a hundred; (the most regular being abbout [sic] 70) owing as you may know, to the NOMADS [sic] tendency of the Tribes of the Kimberley, (better to say: of all Aboriginals of Australia). The experience giving them the knowledge of the differend [sic] epoques in the year in which their game, fruits or fish can be abundantly obtained in some places or Creeeks [sic] along the Coast; and also; the great attachment they have for what they call: “their Country”,it is said, the place of their Birth (which has to be frequently and religiously visited) are certainly two important factors to be considered in the instability or inconstancy in one place.’

705 There was interaction between Sunday Island and the mainland in the early twentieth century. There were marriages between Aboriginal men on the island and women on the mainland.

706 Police patrols reported a ceremonial gathering in 1906 at Carnot Bay just south of the claim area. It was attended by about 60 Aboriginal people. Further north police found ‘a great number of natives’ gathered from Beagle Bay, Pender Bay, Cygnet Bay and Cunningham Point. Police Constable Nelson burned all the camps. About a week later he reported people returning to the mission from the ceremonial gathering, but a month later wrote that Beagle Bay mission was inhabited only by old people ‘all others having gone to Pender Bay for Cobba Cobba’. There was another reference to a ceremonial gathering in a report to police by Father Nicholas at Lombadina mission in 1911.

707 Dr Skyring took issue with Dr Green’s citation of Isdell’s claim that Harry Hunter had a protective attitude to Aboriginal people at Bulgin and assisted them with food and clothing. She contended that the record suggests that Hunter was more violent than protective, lived with a considerable workforce of Aboriginal people, and relied on their labour. She went into some detail about Hunter’s activities. She referred to a police inquiry into allegations against him which was conducted in 1906 and disclosed that the Aboriginal people who worked for Hunter regarded the area as ‘their country’ but seemed to accept Hunter’s presence. Hunter described Bulgin as ‘the native name’ for the place. He died in 1919. The camp at Bulgin remained until at least World War II.

708 The Lombadina mission continued in spite of departmental funding cuts in the late 1920s or early 1930s. It continued to be supported by the Church. Its population varied between 55 and 200. There were regular proposals to amalgamate the Lombadina/Sunday Island missions. In 1931 the Chief Protector argued that Lombadina and Sunday Island persons were so nearly connected as to warrant their maintenance at Sunday Island. However a Broome police constable in the same year reported that:

‘As these natives belong to the country in the vicinity of Lombadina, I am of the opinion that if they were removed to any other mission they would not remain but return to Lombadina.’

709 The Lombadina mission was described by Mary Durack in the 1960s as being supportive of traditional Bardi ceremonial life. Apart from the missionaries themselves most of the people at Lombadina were ‘full-blood members of the Bard tribe’. Durack’s pamphlet on Lombadina contained pictures and text. A caption on the photograph of an Aboriginal man with cicatrice marks on his chest was in the following terms:

‘Dougall, an elder of his tribe, is typical of the first generation of Lombadina mission natives. A faithful Christian but proud of the traditions of his people, his broad features and strong physique are characteristic of the coastal tribes. By nature friendly and peace loving, the Bard people were always well disposed to the missionaries and they responded to Christian teaching.’

Durack Mary, Lombadina Mission Pamphlet, Battye Library c96 p 6

Another photograph of children dancing referred to children often joining in corroborees and learning the songs, dances and legends of the Bardi tribe. The pamphlet in which these photographs and captions appeared was evidently produced to commemorate the mission’s golden jubilee in 1961. The Foreword was written by Bishop Jobst, the Vicar Apostolic of the Kimberleys.

710 A school was opened at Sunday Island in the 1950s which was funded by the Education Department. In 1963 Aboriginal people went from Sunday Island to Derby following their children who were moved there after the Education Department closed the island’s school. The children were lodged in the UAM hostel at Derby. Aboriginal old age pensioners from the island were moved to Lombadina so they could visit the island as they desired. Some departmental officers were prepared to recognise the traditional connection of Aboriginal people to Sunday Island and to reflect that in departmental policy. Others saw it as an impediment to the assimilation of Aboriginal people in white society.

711 On 3 September 1968 a group of Sunday Islanders in Derby wrote to the Western Australian Minister for Native Welfare for assistance to return to the islands. The letter, signed by Khaki Stumpagee said, inter alia:

‘We the people of Sunday Island wish to return to our Native Homes as soon as possible and beg your Department to assist us. Ten years ago on the closing of the Sunday Island mission we were shifted to the Native Reserve at Derby. Our assimilation has only been to the worst of the white men’s ways drunkness, gambling, general lowering of moral laws. We believe that with financial assistance we should be self-supporting in a reasonably jobs (sic) fishing, oyster industry, trocus (sic) shell, sandal mineral development.’

Mr Stumpagee asked for several boats including a 35 foot boat and working capital for 10 months. The request was reiterated at a meeting of Sunday Island residents with Department of Native Welfare Superintendent Johnson in Derby in November 1968. However he was unsympathetic to the request and advised the Commissioner that the project proposed was not feasible without an amended plan.

712 In 1970 Bardi people had returned to Sunday Island. The former missionary David Drysdale who assisted their return administered a Bardi Group Fund at the ANZ Branch in Derby. By June 1971 there was a population of between 30 and 60 people on the island. Their only source of income was 9 old-age pensions and some child endowment payments. Some assistance was provided by the Commonwealth Office of Aboriginal Affairs in late 1971. The sum of $1,000 was made available to stock the community store. The Department of Native Welfare however was for the most part unwilling to commit money for the re-establishment of the community despite acknowledging that the situation in Derby was one of social tension.

713 There was some recognition in the early twentieth century of the existence of a Bardi Jawi tribal boundary. In a letter to the Chief Protector the Resident Magistrate, Dr Wace, said, inter alia:

‘Mr Hadley has written to you asking to have the Native Reserve at Sunday Island expanded to the tribal boundary. I would venture to urge this very strongly.’

The use of Hadley’s term ‘tribal boundary’ related to sea and island boundaries shown on a map referred to by Dr Wace. This showed Jawi territorial waters extending to the Sunday Strait and that they visited the islands of the Buccaneer Archipelago and Cascade Bay occasionally. The map showed the Bardi language area on the mainland adjacent to Sunday Island was ‘much visited by the Sunday Island blacks’. The term ‘visited’ seemed to be synonymous with hunting.

714 Dr Skyring’s further report discussed what she described as ‘tenure in the claim area 1908 to 1980’. That concerned the history of the creation of various reserves. It also referred to the formation of a Bardi Council and its agitation for a lease at One Arm Point. In 1972 the Bardi Council, through its solicitors, requested the Commissioner of Aboriginal Planning to include Sunday Island in the area of land to be leased. In the event, and following the establishment of the Aboriginal Lands Trust under the Aboriginal Affairs Planning Authority Act 1972 (WA) the Bardi Council’s request for land at One Arm Point was implemented. The Bardi Aborigines Association Inc was incorporated on 18 July 1973. The process of handing over land at One Arm Point to the Association took a further 2 years. A 99 year lease of the area including Sunday Island reserve as portion of reserve 20927 on the mainland was granted to the Bardi Association for a peppercorn rental in July 1975.

715 Members of the Bardi Council then sought to exert control over access to, and use of, its reserves. The Association pursued a policy of controlling non-Aboriginal access to its land and rejected government attempts to monitor and participate in access procedures. Bardi and Jawi people in the claim area continued to seek greater control over their traditional land for future generations as well as contemporary community.

716 In her conclusion Dr Skyring pointed to the refusal of Aboriginal people to be moved from what they identified as their country as a recurring theme in the history of the Bardi and Jawi claim area. The Aborigines Department and its successors had proposed repeatedly that the missions at Sunday Island and Lombadina be amalgamated. Those proposals were never fully implemented. When the Sunday Island population was moved to Wotjulum on the mainland at Yampi Sound in 1935 people immediately sought to return to their island home. Despite lacking resources and money to enable them to make the journey easily the exodus to Sunday Island was complete and the mission at Wotjulum abandoned by 1938. When children were removed by authorities to the UAM hostel in Derby in 1963, the parents followed but the people campaigned to return to their country. Senior leaders of the Bardi and Jawi community in Derby sought the assistance of the Department of Native Welfare in 1968 to return to what Tommy Thomas called their ‘Native Homes’. The Department did not provide assistance so people returned to Sunday Island and Malumbo Beach for the most part on their own resources. In the early days of the One Arm Point community in 1971 the population of up to 60 people subsisted by sharing 9 old-age pensions and some child endowment payments and income from the sale of shell. Their principal diet was seafood.

717 Dr Skyring’s expertise was not disputed. Her reports were received in evidence without objection. She was cross-examined but her cross-examination did not impact on the evidence which she had given. Her reports stood almost entirely unchallenged and I accept that they are a broadly accurate account of the historical events which they set out.

718 The historical evidence from Dr Skyring and Dr Green was broadly compatible. Dr Green’s report however was of a preliminary nature and some of his interpretations which were contested by Dr Skyring were based on a less substantial body of evidence than she was able to marshal. There are many events referred to in Dr Skyring’s report which were reported or recorded in the various documentary sources to which she referred. It is not necessary to determine as a matter of fact whether every such event occurred. It is sufficient to say that, based on my acceptance of the broad sweep of the history which she has recounted, it is possible to make the following findings of fact:

1. Aboriginal people occupied the claim area as early as the mid seventeenth century and continued to occupy the area at the time of annexation of the colony of Western Australia in 1829.

2. The people who occupied the claim area in 1829 from time to time displayed resistance to European incursion. (Stokes 1838)

3. The people who occupied the claim area in 1829 exploited marine resources. They used stone traps to catch fish. They collected shellfish in the intertidal zone and they also caught and ate turtle. They used water wells to get access to fresh water.

4. The people used fires.

5. The people carried wooden spears and used chipped stone tools.

6. Significant contact between Aborigines and Europeans in the claim area did not occur until the arrival of the pearling industry in the Kimberleys in the early 1880s. The relationship during the period of early contact was exploitative. Aborigines were effectively press-ganged to work as divers.

7. The people had campsites and wells throughout the claim area.

8. The people followed particular burial practices which included wrapping the deceased in paperbark and placing the body in or near a tree.

9. Following the arrival of missions in the 1890s people entered into a kind of symbiotic relationship with the missions. They obtained work from the missions and some food supplies. The missions came to be dependent upon their labour. Exposure to the teachings of the missions did not generally lead to rejection of traditional law and custom.

10. The people of the claim area have a strong continuing sense of association with traditional lands within that area which continued well into the 20^th century as indicated by the history of Sunday Island and the Sunday Island mission. An earlier indication of a sense of territorial affiliation appeared from the evidence relating to Alexander Forrest’s 1879 expedition. The strong sense of association continued until the present time as reflected in the activities of the Bardi Council and the Bardi Association.

The historical evidence referred to also supports the inference that the people who occupied the claim area at colonisation were, broadly speaking, the cultural and biological ancestors of the people who occupy it now. This conclusion allows for changing composition of the group effected by intermarriage which is dealt with elsewhere. As discussed in more detail later in these reasons it involves no finding about whether there was one or two Aboriginal societies in the claim area. That is an issue to be considered by reference to other evidence.

Archaeological evidence

719 The applicants relied upon archaeological evidence set out in a report prepared by Dr Moya Smith for the Kimberley Land Council and dated October 2000 (X-AV). Objections raised to particular paragraphs were conceded. An archaeological report of Dr Sue O’Connor (X-AW) was received in evidence on a similar basis. Dr Smith’s expertise is not under challenge. She has had extensive experience in the claim area. In 1980, while employed as a research officer with the Department of Aboriginal Sites, which was then part of the Western Australian Museum, she participated in a site survey of the Lombadina area. It was requested jointly by the Lombadina Council and the Ministry for Cultural Affairs. The survey led to the registration of some 30 archaeological sites and about 70 ethnographic sites. She focussed on identifying and documenting scatters of stone artefacts, shell and faunal remains which dominate the coastal strip fringing the Pindan. The work concentrated on sites in the vicinity of Cape Leveque. She spent a substantial amount of time talking to Bardi and Jawi women who were knowledgeable about the country and its resources.

720 In her overview Dr Smith said that the archaeological record of the southern Kimberley coastal area including the claim area, is dominated by surface and sub-surface scatters of shell which usually but not always include stone artefacts. In addition to this evidence of reliance on shellfish in the claim area there are stone circles identified by Bardi people as hut or shelter bases and stone-wall fishtraps. No rock shelters with occupation deposits and few deeply stratified shell middens had been located. She though it unlikely that many or any existed in the claim area. The work of Kim Akerman in 1975 suggested that there were three phases in artefact typology in the area, the earliest characterised by pebble choppers and undifferentiated flake tools, the second by pebble choppers, blades, points, flake scrapers, shell receptacles, occasional shell tools and ground edge axes and the third by shell chisels and knives, ground edge axes, utilised flakes, shell receptacles and small grindstones for shell tools. The third phase was thought to have encompassed the ‘contact period’ and included adoption of metal and glass for tools. Some of the shell mounds and scatters in the claim had small numbers of artefacts. They did not readily indicate patterns of changing stone artefact typology or technology, particularly as they remained undated.

721 The presence of people in the general south Kimberley region for up to 30,000 years suggested that people were likely to have been in the claim area for a similar period. The local geology prevented the development of large rock shelters which could act as catchments for occupational deposits. This fact, and the focus of initial dating on shell material in red dunes, may to some extent account for the absence of dates earlier than 2,060 years ago.

722 At a site near Lombadina fossilised human foot prints forming a line 6.5 metres long and facing approximately south had been observed. An eleventh footprint facing north-west was 5 metres north of these. They suggested adults, at least one, probably a man. At least 2 people walked in the line because of the disposition of the footprints. Their description is set out in Welch, David M ‘Fossilised human footprints on the coast of north Western Australia’, The Artefact 22:3-10. The footprints were dated by optical stimulated luminescence using grain samples from the beachrock in which they were made. The samples gave a weighted average age of 1,920_-⁺ 140 years. These were the oldest dated sites in the claim area. Until further sites were excavated and dated the archaeological sequence had to be considered preliminary. What was certain, in Dr Smith’s opinion, was that Aboriginal people had lived in the claim area for at least 2,000 years.

723 The Aboriginal Affairs Department sites register lists over 60 archaeological sites in the claim area variously defined as having artefacts, shell middens or shell scatters, engravings, fish traps, paintings, man-made structures, evidence of quarrying or the presence of grinding grooves and burials.

724 Dr Smith discussed archaeological sites in buru most familiar to her. No detailed analysis had been carried out on samples collected beyond simple species identification of the shells and rough counts of artefact and lithic types. There were limitations imposed by virtue of the archaeological sites being open and by the poor survival of organic material. Enduring materials such as shells and stones were a very small part of the materials used and consumed by Aboriginal people – Meehan, B Shell Bed to Shell Midden, Australian Institute of Aboriginal Studies Canberra.

725 Dr Smith referred to the Gooljiman buru, the area of which was set out in a sketch map shown in Figure 3 to her report. That figure also showed the archaeological sites which she identified. All of the sites were located within the coastal dunes. They had artefact and shell scatters identified during the 1980 survey. A restricted site, Linbingoon, as well as being of ritual significance, had archaeological material and several panels of engravings including marine motifs and other designs. At one of the sites, Kayeroon, the archaeological material included shellfish and stone artefacts which were mainly flakes of quartzite but included a hammerstone and charred heart stones. There were also turtle and dugong bones. The material extended along the entire beach zone culminating in a mounded hill overlooking the western end of the reefs and enclosed pool (Karlanoon and Malingin Reefs and Manara Pool). The Gooljaman campsite was ‘an extensive scatter of stone artefacts and shell extending for over 1 km’. The material included a basalt axehead, large basal grindstones still with upper grinders and syrinx shells. 60 to 80% of discarded artefacts were lumps or fragments of charred and thermally fractured stone, including hearth and cooking stones. The remainder were primary flakes, occasionally retouched flakes and blades and fewer than 10 core fragments. Retouched baler shell was also present.

726 In the Gnamagoon buru illustrated in Figure 4 to her report, Dr Smith examined 13 archaeological sites and recorded the location names where possible of a further 20 places. The archaeological material survived primarily in the coastal dune system. The sites included old-time and recently used campsites, fresh water sources, fishing spots, pools and a fishing rock, reefs and areas restricted to men only. The surface material in that buru conformed to phase two of the Akerman model reflecting the later of two pre-contact phases with the majority of artefacts being simple 3-12 cm long blades or points, some with marginal retouch.

727 Dr Smith examined middens in the buru including Lulud, Ilon or Illan, Goodagoon, Armanda, Noron, Nimlaroon and Djilon or Jilan. They had assemblages similar to Malilb which she had described in a paper published in 1987. In that case the majority of shells were dog cockles, small pearl oysters, little abalone and occasional examples of other reef species. The main differences in the assemblages lay in the ratio of reef to mangrove shellfish species. These could be correlated by their proximity to the relevant resource zone. Other archaeological features in addition to stone artefacts and shellfish debris which could be identified as pre-contact, included a burial at Nimlaroon, engraved slabs of rock (hatched line motifs) between Lulud and Malilb and freshwater soaks at Noron and Djilon. The skeleton at Nimlaroon which was eroding from the dune was excavated and later reburied in Pindergoon, which is a restricted access location to the north of the Gnamagoon salt flats. Lack of dental caries and dental wear consistent with pre-contact diet suggested that the burial had occurred pre-contact. The two central front teeth had been evulsed.

728 Dr Smith said that there is a sense in which the entire coastline bears archaeological witness to human presence, with scattered shell and stone at virtually every place she visited. The other most striking indications of human use and occupation of the claim area were stone circles identified as hut or shelter bases at Maara on the north side of Chile Creek and stone wall fish traps.

729 Nineteen fish traps had been recorded in the claim area. Trap types were visually distinguished from each other by details of their construction techniques, their shape and the position within the tidal range. All the traps comprised locally available stones and were functionally dependent upon local tidal movement. Fish feeding on advancing and high tides would be stranded behind walls or in enclosures which blocked natural drainage channels as the water receded. Stone lines across sandy substrate not necessarily connecting rocky outcrops were more common in the south near Bidyadanga. The northern traps were usually sections of walls linking natural rocky outcrops. Clusters of more than three to four traps appeared to be a southerly phenomenon. Solitary traps were more common around the northern end of the Dampierland Peninsula.

730 Dr Smith listed fish traps in the claim area. These occurred at the following locations:

1. Medlogoon

2. Emeriau Point

3. Imbalgun

4. Weedong Well

5. Orlg (Chile Creek)

6. Bungarr/Boolginara (Lombadina Beach)

7. Bulgin (Hunter Creek)

8. Mulagun

9. Joomonyoon

10. Gambanan

11. Lalanan

12. Galinagoon

13. Ardnogoon

14. Catamaran Bay

15. Nimanan

16. Jalalanga

17. Mangingoor (Elephant Point)

18. Jarjang

19. Nilil (Rumble Bay)

731 Aboriginal campsites with ‘traditional’ tools made of European materials such as metal and glass testify to the continuing use of pre-contact campsites in the post-contact period. People had continued to use the same campsites into the late 20^th century. It is, however, almost impossible to attribute precise chronological detail to what is interpreted as ongoing Aboriginal occupation and use of the claim area evidenced from the archaeological record. No exact dates can be ascribed to the features reflected by the use of materials such as glass, china and metal although they are clear indications of ongoing occupation and use during the historic period.

732 Artefacts made of post-contact material discarded on the site, traditional objects made and used in the early 20^th century testify to the continuing occupation of the claim area by Aboriginal people as well as ongoing traditional life. In this connection she referred to collections of post-contact materials and traditional objects made and used in the early 20^th century and held in the Anthropology Section of the Western Australian Museum.

733 The pre-contact archaeological record testified to people practising a maritime economy. The earliest dated indication of Aboriginal presence, the fossilised human footprints some 2,000 years old, traced at least two adults walking along the strand line in exactly the same manner as observed by King in 1822. From the middens which date between 1300 and 870 years ago, it was obvious that the foods people consumed were derived from the sea. The conditions of preservation did not favour the survival of anything apart from the shells of consumed shellfish, shell tools, stone tools and ochre. Organic materials had a tendency to disappear rapidly from locations. The behaviour of camp dogs which scavenge organic materials was ‘probably the key factor in the skewed representation of materials in campsites assemblages both before and after the contact period’.

734 Strands of evidence indicative of cultural continuity included the location of campsites and their likely relationship to seasonal factors, the types of shelters, the ongoing use and construction of fish traps and the wealth of knowledge about and continuing use of marine resources as primary and important foods. Dr Smith also referred to the identification of other resource zones for extracting raw materials such as favoured woods for tools, ochres for body paint and artefact decoration, stones for tools and the location of fresh water sources.

735 Campsites were located predominantly in locations along the entire coastal strip as evidenced by the archaeological record. Irrespective of where people lived permanently because of external intervention, when they had extended trips to country for resources there were repeated patterns in which sites were chosen as the most suitable locations. During the wettest parts of the wet season (December to January) people would camp in sheltered locations on the leeward side of dunes, sheltered on their other side by fringing mangroves or ‘jungle’, the vine thickets or pindan woodlands. Sites such as Ilon and Djilon afforded protection from inclement weather, but since they were within a kilometre or two of the ocean did not hinder access to target resources including turtle eggs or fish. As the weather became drier, but still hot and steamy, people moved to central saltwater locations which afforded easier access to the ocean and its resources but still offered shelter. This was the time when it was necessary to use fish traps like those on the north and east of the peninsula to supply food for large groups of people who would gather for ceremonies. During the March-May period, Iralbu, with low tides, the people focussed mostly on reefing as well as collecting abundant available fruit. By the end of the season they were camping on sites overlooking the ocean. When cold south-east winds began to blow people would move back to inland sites and further into the pindan.

736 Each of the seasonal adjustments required the construction and use of different types of shades or huts. There was no pre-contact evidence of hut types. The earliest reference appeared in Stokes’ descriptions from January 1838. The platform type of shade, which Stokes illustrated, was one which people continue to erect. When weather conditions required more shelter people constructed inverted ‘V’- shaped shelters (gidoon) with various forms of covering. Before European materials arrived these were covered with paperbark sheets. Mr Paddy and Esther Paddy had constructed and used one of these in 1981 at Jinganan, near Karrakatta Bay. It had been used in the cold season in July and August when they had been camping out keeping cattle away from a well. They would add a windbreak and use water from the soak at the foot of the hill where the shelter was. Dr Stokes referred to the speed at which such ephemeral constructions would disintegrate.

737 The only type of shelters able to be identified as pre-contact were the stone hut bases such as those at Maarra which were described by many people as ‘old-people’s’ huts or ‘from long-time ago’. A similar structure was excavated on High Cliffy Island slightly to the north of the claim area. A baler shell nearby was dated at 370 _-⁺ 50bp. Dr Smith said that this indicated that similar structures were in use in the general region before the establishment of the colony.

738 Some of the strongest evidence for continuity of practice in terms of resource exploitation, as well as continued occupation of particular areas, came from continued use of stone-wall fish traps. Fish traps have to be monitored. While none of the traps had been dated it was likely that those with sections very close to the bottom of the tidal range related to slightly lower sea level stands and were thus in part convincingly pre-contact, since it would be impossible to construct them under the present tidal regime. These were described by Dampier in any event, which placed them before 1829. Dr Smith noted that different traps were reputedly best for catching different species, and therefore most likely to have been used when targeting different fish. She set out descriptions of the traps with stories of or evidence for their post-contact use in the claim area.

739 Dr Smith referred to fishing activities and the use of fishing boomerangs and fishing spears and harpoons. Over the past 20 years there had been no occasion on which she had shared fishing trips without everyone bringing their fishing spears. Children and boys in particular, were encouraged to assist in making their own spears and to practice using them on any possible occasion. Their importance as an indication of connection to the sense of identity as ‘Salt Water People’ was reinforced by gifts of spears to family who went away from Bardi country.

740 Digging sticks are multipurpose tools. Digging is only one of their functions. Paperbark trays were used to hold cooked fish and shellfish but are rarely seen today. Containers of baler shell were commonly used as water containers, replaced today by plastic 20 litre containers, 2 litre cordial bottles or cooling jugs. Fragments of baler shell dishes, which could be used as scoops, were sometimes found on sites and newly washed ashore intact shells were frequently collected and found in many houses around the communities. Turtle shells were also used as containers.

741 She referred also to the nocturnal fishing torch. The fishing poisons were identified by reference to five distinct plants, a sea slug and a soft coral.

742 Boomerangs continue to be made particularly those used as clapping sticks or which are earned by young men after initiation. Dr Smith described distinctive Bardi boomerangs with groups of three stripes, often yellow ochre, across the boomerang’s width. Such were visible in a 1917 photograph of a group of men on Tyra Island. They continue to be made from a tree sharing the boomerang’s name, namely irrigil. Other forms of boomerang such as the olm or ceremonial boomerang and fishing boomerangs of wood are no longer routinely made. In 1983 Mr Paddy taught Dr Smith and several children who are now in their mid to late 20s how to make a wooden boomerang. Distinctively shaped shields with incised decoration also continue to be made using jalgir. They are among items which form part of the traditional weapons made in the Lombadina workshops comprising a shield, paired boomerangs and spears. The woods for all of these are collected in the pindan. People sometimes travel reasonable distances to find trees of suitable shape or dimensions.

743 The people no longer use stone or shell tools. Men and women carry the ubiquitous tomahawk, larger axes and a variety of chisels and sharpening stones.

744 With tanks and bore water supplying most of the peoples’ freshwater needs, only the older people kept up an active interest in maintaining the soaks which were once a mainstay of existence in the country. Dr Smith referred to soaks at campsites used by the Paddys. At Swan Point and Jarjang there were soaks manifesting as upswellings of water in small clusters of mangroves where fresh water was available intertidally. These had been fenced off to prevent cattle fouling them when there were people spending any time nearby.

745 The archaeological evidence of traditional occupation and use of the land claimed by the Bardi and Jawi was limited for the pre-contact period. Surviving shellfish and stone tools were slender records of what logically must have been a more complex existence. As Meehan had said ‘man does not live by shellfish alone’. Despite this the shellfish from the archaeological sites in the claim area were apparently those which continued to be important foods until the 1940s. The people with whom Dr Smith worked continued to know the best places for those shellfish and in discussing the content of middens easily identified the sources of particular species to the point of identifying differences in terebralia shell occupied by the gastropod itself as opposed to those reused by a mangrove dwelling hermit crab. Older women continued to collect shellfish and on reefing trips every year people had collected their particular favourites most commonly oysters. Mercia Angus had often made specific trips to her country on the east side of the peninsula to collect her favourite large oysters. Shellfish other than oysters were increasingly used as bait over the past 20 years rather than as foods in their own right. In Appendix 2 to her report, Dr Smith listed species which people had identified from middens. Asterisked species occurred most commonly on middens and were likely to have been the most frequently targeted food species. With Dr O’Connor, Dr Smith collected 50 specimens of each species to allow a comparison between their weights, and the dry weight of empty shells on the sample and on the middens. This allowed them to infer the food weight of the discarded midden material. Detailed knowledge of available shellfish species which many people continued to demonstrate spoke to a connection with both pre-contact and historic evidence of people’s use and occupation of the land.

746 Although people no longer used the stone or shell tools, they could identify the sources of the stone used. Two of the most important locations were Galan and the vicinity of Gadiman. The ethno-archaeological information collected over the past 20 years reflected a society with a well-evolved maritime economy adjusted to local resource availability. The observed behaviour of the people, in combination with the histories of land use according to seasons, the flowering and fruiting of plants, the behaviour of exploited animals and social imperatives such as ceremonial gatherings was entirely consistent with the distribution of archaeological sites and their content. The lifestyle and resource base which people still understood and partially exploited focussing particularly on such marine species as fish, turtle, dugong and stingray had changed little in terms of location and seasonal factors. The pre-contact skeleton with its evulsed teeth reflected a practice which, although waning through missionary influence, was still of some account in 1979 during Robinson’s fieldwork.

747 Wooden artefacts had been collected for institutions such as the Western Australian Museum. The Jackson photograph of 1917 connected Bardi people across the century through the artefacts enshrined in that image. They were similar to early examples in museum collections and continue to be manufactured for personal use and for each young man going through the various stages of initiation. The white paint worn for ceremony, the patterned shields, the long skinny spears, the hairbelts, the pearl shell and the triple-striped boomerangs connected the current men, their ancestors and descendants to their sense of self as Bardi people and to their country.

748 Dr Smith concluded:

‘On the basis of the similarity between behaviour which I have observed, or which is apparent from oral histories, early historic records and the accounts of other archaeologists, and what sort of material record this would leave, which is furthermore consistent with the existing archaeological record both before and after contact, it is the expert’s opinion that Bardi/Jawi people used and occupied the claim area prior to the establishment of the Swan River colony in 1829.’

749 A further archaeological report was provided by Dr Sue O’Connor. It was dated October 2000 (X-AW) and was received subject to objections which were conceded. Those parts of the report objected to were ruled through.

750 The report was based in part on archaeological field work carried out by Dr O’Connor in 1985 for her PhD. This involved work in the Buccaneer Archipelago. Members of the Lombadina and One Arm Point communities co-operated with her in the project. In her summary document described field work in the area between One Arm Point and Buccaneer Archipelago and within the Archipelago which she prepared at that time, Dr O’Connor wrote an opening statement which she said was still true. She said:

‘The islands of the Archipelago as well as all areas of the mainland that we visited were rich in old camping places. Virtually nowhere we landed did we move more than one hundred metres from the boat without finding a scatter of stone flakes, a collapsed windbreak or some other indication of how this area was used. The dates that have been received so far indicate continued use of this area for more than 24,000 years. Combined with the richness of the area, these old dates make this area of the Kimberley coast a very important place for understanding the way people used the land in the past.... The dates from these sites demonstrate the continuity of land use in this area.’

Although there was an abundance of scattered stone and shell artefacts no stratified or datable deposits were found in open locations in the claim area. Rock shelters do not occur in the geology of the islands.

751 Dr O’Connor’s research focussed on obtaining information about the changes through time in the pre-history of the wider region of the Archipelago. She therefore concentrated her detailed survey and reporting on islands with rock shelter formations such as Koolan Island, outside the claim area where she could obtain samples for radiocarbon dating. She did, however, carry out ethno-archaeological work with some of the claimants on islands within and adjacent to the claim area.

752 She posed a number of questions in her report. The first was whether there was an Aboriginal occupation of, and use of, the claim area before and at the time of the establishment of the colony of Western Australia in 1829 and the time depth of such occupation. Referring to archaeological evidence, Dr O’Connor observed that no detailed archaeological survey or excavation had been undertaken on the Sunday Island group or adjacent islands within the claim area. Isolated artefacts of stone and shell were seen during the course of her survey on Sunday Island but they had no potential for dating. She referred to dating of materials in a rock shelter on the western end of Koolan Island. Koolan Island was in use 24,000 years ago when it was part of high peninsula on the mainland overlooking the coastal plain. The sea came proximal to the site about 10,500 years ago. The site demonstrated continuous use of resources drawn from both land and sea after that time. Koolan Peninsula was cut off from the mainland by rising seas about 8,000 years ago and the island was formed. The dietary emphasis of Aboriginal occupants of the island was focussed on coastal and marine resources. High Cliffy Island is 8 to 10 kilometres from the mainland and has occupation dates of between 3,000 and 6,000 years before the present. Sites on High Cliffy Island contain a similar range of resources to those in the Koolan shelter. There is an even greater marine emphasis with large quantities of bone of turtle, dugong, seabirds and fish. This constitutes the earliest evidence for Aboriginal use of islands anywhere in Western Australia.

753 Dr O’Connor pointed out that Sunday Island and the adjacent islands in the claim area are ecologically similar to Koolan and High Cliffy Island. Sunday Island has larger areas of adjacent platform reef than Koolan Island and better sources of fresh water than High Cliffy Island. She offered the opinion that the occupation history of the islands in the claim area should therefore be similar in terms of the nature of exploitation and time depth to that of Koolan and High Cliffy Islands.

754 The questions which she next posed were whether the current Aboriginal archaeological and ethno-archaeological evidence showed a cultural continuity or whether there had been changes over time in the use and occupation of the land from earliest recorded Aboriginal presence to post-contact. Related to that was the question whether the archaeological evidence of traditional use and occupation of the claim area after 1829 was culturally consistent with its present use and occupation by Bardi and Jawi peoples.

755 Referring to her own fieldwork in the 1980s, Dr O’Connor said she had several times found abandoned hearths on Sunday Island strewn with bones, burnt sand and cooking sand. These had been identified by Khaki Stumpagee as turtle ovens. Some of the people with her caught a turtle which they butchered and cooked in that manner. They also collected and cooked turtle eggs when in the islands on the trip with her. They told her how the female turtle attempts to hide the real batch of eggs by making several holes. They used long spears with detachable metal harpoon heads to catch the turtle. They would jump from the bow of the dinghy plunging the harpoon into the turtle shell with the full weight of the body behind it. Two of her companions also went to catch dugong on a trip back to One Arm Point.

756 Dr O’Connor observed that the same range of dietary resources are found on open shell scatters on One Arm Point and on the islands in the claim area as appear in the older dated sites in the Koolan shelter and the High Cliffy shelter. Trochus have been collected for sale from historic times but are still sometimes eaten. The trochus was found in all the sites she excavated outside the claim area and was seen on eroding shell scatters at One Arm Point and at isolated finds on Sunday Island. Its place in the archaeological record attests to the role the shellfish species played in diet prior to commercial exploitation. On a reefing expedition with Khaki’s wife and Mercia Angus she observed them use short spears known as jungur to poke into holes in the coral and to prise off shellfish like the chiton.

757 Items of material culture found were next discussed. Dr O’Connor referred to a baler shell implement in the midden levels at the Koolan shelter. The implement had the edge ground in a way similar to tools described as hafted baler knives and adzes which had been recorded by Akerman on Dampierland. The knowledge of how to make these artefacts and what they were used for is still held by Bardi and Jawi elders. Khaki Stumpagee explained to her how such knives were made and hafted before metal became available. He showed her patches of rock with evidence of grinding used to sharpen the edges of the baler knives and later to grind down metal spearing harpoon heads.

758 Dr O’Connor’s conclusion was that while core preservation conditions and a strongly seasonal climate had mitigated against the preservation of ancient archaeological sites on islands within the claim area, the records from adjacent islands outside the claim area with good preservation conditions, namely rock shelters, indicated that occupation of the islands in the claim area would have antiquity of at least 6,000 years. The archaeological evidence for islands within the claim area however was sparse and undated. Such evidence as existed was consistent with their use by Bardi/Jawi people prior to the establishment of the colony of Western Australia.

759 I accept the evidence of Drs Smith and O’Connor in so far as it consisted of their direct observations. I also accept their conclusions. By way of summary the findings that emerge from that acceptance including the following:

1. Aboriginal people have certainly lived in the claim area for at least 2,000 years and probably up to 30,000.

2. The archaeological record of the use of land and waters, food obtainable from the marine environment, the distribution including seasonal distribution of campsites and the indicators of accumulated environmental knowledge, support the inference when considered together with the oral histories of the people, that the Bardi and Jawi people have occupied the claim area since before colonisation.

3. The Aboriginal people of the claim area have had a marine economy since before colonisation and contact with Europeans. They used campsites along the coast and caught, collected and consumed fish, shellfish, oysters, turtle and dugong. They used the intertidal zone for their fish traps and the collection of shellfish.

4. A cultural continuity since colonisation is reflected in the continuing use and maintenance of fish traps, the informed use of marine resources, the use of seasonally related campsites and the construction of shelters. It is also evidenced by the use of such artefacts as spears to catch fish and digging sticks. The ceremonial use of the triple-stripped boomerang, the fishing boomerang and the distinctively shaped shields with incised decorations all support that contention.

5. The findings do not however enable me to draw any conclusion about whether the Bardi and Jawi people were one society or two distinct but related societies at colonisation.

Linguistic Evidence

760 The applicants’ linguistic evidence was in the form of a report from Dr Christopher Metcalfe dated 13 November 2000 (X-AX). There was no cross-examination and the report was admitted subject only to one small objection.

761 A document entitled ‘A Preliminary Linguistic Report’ prepared by Dr Mark Clendon and dated January 2001 (X-AAD) was relied upon by the State. It took the form of a response to Dr Metcalf’s report.

762 Dr Metcalfe began with a brief outline of the Bardi and Jawi peoples and their languages in the literature. He referred to Dampier’s observations in 1688 and in particular his account of Aboriginal people, evidently in the claim area, running away from his vessel crying ‘gurry, gurry, speaking deeply in the Throat’. According to Dr Metcalfe this is revealing. Dampier would have, as would most Europeans from that day to this, great difficulty in pronouncing the sound ‘ng’ at the beginning of a word. The closest sound phonologically which occurs at the beginning of a word is ‘g’. The ‘ng’ sound is also produced at the back of the mouth cavity which probably led to his description of the people ‘speaking deeply in the Throat’.

763 Dr Metcalfe then made the assertion that what the people were crying out was ‘Ngarri, ngarri’. For both Bardi and Jawi ngarri is a commonly encountered feared and fickle spirit being. It is responsible for many of the misfortunes which befall the people of their communities. Dr Clendon, on the other hand, said that the extrapolation of ‘ngarri’ from Dampier’s ‘gurry’ is problematic. Word-initial velar nasals such as ‘ng’ were usually not heard by English listeners. The other problem with getting ‘ngarri’ from ‘gurry’ had to do with the first vowel. If Dampier’s ‘u’ represented a short central vowel as seemed most likely, it was hard to see how he could have mistaken this for the long back vowel of ‘ngarri’. Despite the fact that the short central open vowel receives similar orthographic treatment to the long back open vowel in Bardi they are quite distinct word vowels and were not usually confused in short words in positions of primary stress by English transcribers.

764 Dr Metcalfe set out early attempts to record the languages of Bardi and Jawi. WH Bird, who was a schoolteacher on Sunday Island for some time, produced materials of value in 1914 and 1915 especially in relation to the Jawi language. The original of his 96 page account of the vocabulary, expressions, sentences and answers to questions about culture and social structure of Aboriginal people on Sunday Island is held by the Museum of Western Australia. It is the fullest early account that there is of Jawi language and culture. He referred to a number of other writers in the field and said that the most recent comprehensive survey of the languages of the Kimberley region was written by Dr W McGregor under the title ‘Handbook of Kimberley Languages’.

765 The Bardi/Jawi languages are ‘agglutinative’. They verbally ‘glue’ or ‘affix’ dependent word parts onto stems. The stem usually carries the meaning of the word or expression. The word parts attached to the front of the stem are prefixes. Those attached after are suffixes. There are also infixes which are embedded within word parts. A number of these sets of affixes are complex in themselves.

766 Each verb can be characterised as a sentence-in-miniature. In a transitive sentence the subject is expressed by a prefix and the object by a suffix to the stem. So the word for ‘you are looking at them’ in Bardi is ‘min-j-al-a-nj-irr’. That declarative sentence is transferred into a question ‘are you looking at them’, it can be rendered ‘min-jal-ard-a-nj-irr’. Combinations of prefixes, suffixes and infixes lead to different meanings.

767 The use of pronouns both as free parts of speech and as affixes within an inflected verb is highly developed in Bardi and Jawi. In inflected verbs, which operate as sentences-in-miniature, the subject is expressed by a prefix derived from the free forms of the pronouns. The verb ‘to pick up’ uses the verb stem ‘andi’. The sentence ‘I pick up – present tense – them’ will be rendered ‘ngan-andi-nj-irr’. This means ‘I am picking them up’.

768 Time in Bardi and Jawi verbs is conveyed by two basic concepts, namely uncompleted action and completed action. There are two imperfect tenses, namely the present and the future. There are six perfect tenses. These are the immediate past, the near past, the middle past, the distant past, the indefinite past and the remote past.

769 The wealth of terms available to describe various facets of the tides exemplifies the relationship between the Bardi and Jawi people and the natural world. Intimate knowledge of the seasons and changes through the year of climate and processes in the natural world have also led to a richness of definition and description. Bardi concepts of the season are more complex than that of a simple wet-dry pattern. There are 6 seasons distinguished largely by wind and rainfall directions and intensity, the ripening of fruits and the appearance, disappearance and ‘fatness’ of fish and animals. So ‘mangal’ is the wet season, ‘Ngalandany’ is the end of the wet and literally means ‘no fruit’. ‘Iralbu’ is the period of big or king tides. This is significant because low tides are ideal for reefing. ‘Bargana’ is the cold season when people start to light night fires. ‘Djallalai’ is a short warming up season. ‘Lalin’, the build up to the wet season, is hot and humid.

770 Plants are important as seasonal indicators. The signs of the availability or optimal condition of other food resources reflect extensive knowledge of the plants of the peninsula. Examples include such sayings as ‘when gorrgorr fruits, turtle arrive’, ‘when marulal flowers, turtle go’, ... ‘urulbur is in flower, stingray are fat, and turtle eggs bilal flowers, dugong appear’. Known plant foods include fruits, seeds, roots, bulbs and corms, gum, nectar and other sweet substances and insect galls. There are many plants which are relied upon as medicines and used in dealing with rheumatism, aches, cuts, sores, itchy bites, sore teeth and gums.

771 The flora is of great importance to Bardi and Jawi people for food sources. The language evidences great knowledge of the environment and its application to the well-being of the Bardi and Jawi communities. Dr Metcalfe cited an extract from Paddy and Smith, E & S Paddy and M Smith (1987), ‘Boonja Bardak Korn: all trees are good for something’ Perth: WA Museum. The report set out a number of Bardi and botanical plant names according to use, part used and preparation which were contained in the Paddy and Smith writing.

772 Dr Metcalfe then turned to the particular Bardi and Jawi words which describe the relationship of the claim group and individuals of it to their country. He identified the four regional groupings and the names of the people within those regions:

(a) Olonggon

(b) Baniol

(d) Adiola

The Jawi community at Sunday Island are referred to as Inalabulu which means ‘island people’.

773 Dr Metcalfe was unable to estimate the age of Bardi and Jawi languages. He relied upon William Dampier’s account of his contact with Aboriginal groups and the inference that the word ‘gurry’ should have been transcribed as the word ‘ngarri’ to conclude that there was an unusual time depth to the recording of these Aboriginal languages.

774 Language change was mentioned. Many of the words of the ancient songs are not in current use. The differences are so profound that it can be assumed that language change must have occurred over many centuries and probably thousands of years. Bardi language maintenance programs are carried out in the school at One Arm Point which had been conducted there for many years. There has been a corresponding development of language learning courses, teaching materials and books in Bardi.

775 Dr Metcalfe referred to Djarindjin which he described as ‘quite different’ from One Arm Point. Although there has always been a significant section of Djarindjin population who are Bardi or part-Bardi there have also been people from other parts of the Dampier Peninsula and from further afield. Despite the different backgrounds of the population there is a program in the Bard language. Once a week a group of six, mainly women community members, teach a course in Bard to two of the four classes. There are also language and culture-based projects within the school program in the area from time to time.

776 Both Bardi and Jawi are prefixing, non-classifying’ languages. This distinguishes them, according to Capel’s map, from a number of other tribes. Both are members of the same family of languages of Nyulnyul. Dr Metcalfe said:

‘When comparing word lists from the languages of the Nyulnyulan family it becomes obvious that Bardi and Jawi are more closely related to each other than Bardi is to Nyulnyul. The cognate differences increase with the geographical distance between Bardi and Jawi and the other member languages of the family.’

777 Worms, speaking about the name of Sunday Island, had said it was inhabited by Jawi who were linguistically and anthropologically related to the Bardi. An instance of the relationship between the two languages was provided in the translation of a series of traditional stories. There were a number of Jawi words with Bardi equivalents. Dr Metcalfe referred to a story of Arriana, the Eagle-Hawk. A passage from the story showed differences in significant words but these were set in the main body of the story in which about 95% of the vocabulary is common both Bardi and Jawi.

778 Dr Metcalfe’s report was the subject of criticism by Dr Clendon. He observed however that the size of Sunday Island and other evidence, including evidence from Bagshaw, indicated that the number of people speaking Jawi as a first language was always quite small. It was far too small to support a separate and distinct semiotic code. On that basis he could reasonably infer that Jawi traditionally had dialect status with respect to Bardi, with its much greater geographical area and more numerous speakers. Considering the group status of Bardi/Jawi as against surrounding languages, Dr Clendon noted that Nyulnyul occurs to the south and Unggarrangu to the north-east. The Buccaneer Archipelago appears to be divided linguistically into a western zone adjacent to the tip of the Dampierland peninsula and an eastern zone adjacent to the north-western part of the Yampi Peninsula. The islands of the latter zone are collectively referred to as Mayala in Bardi and Jawi. Linguistically, if not socially, according to Dr Clendon, there was a clear discontinuity between Sunday Island in the west and Mayala in the east. The existence of such discontinuity in the south was not at all clear. He noted Dr Metcalfe’s claim that Bardi and Jawi are more closely related to each other than Bardi is to Nyulnyul and did not see sufficient evidence for this. Mr Bagshaw’s 1999 anthropological report had suggested that Bardi and Nyulnyul speaking people intermarried and that it was possible, if not likely, that linguistic as well as social distinctions in the region might be blurred.

779 Dr Clendon saw Dr Metcalfe’s section on linguistic indicators of connection with country as the most pertinent information and presenting the most compelling linguistic evidence in favour of the applicants’ case. The lists he referred to indicated not only that Bardi has a marine vocabulary but in the case of tides the Bardi speaking people had an ongoing association with the sea. It would be unlikely that people with a hunting and gathering economy would have had such a precise marine terminology unless they lived near the coast and depended upon it for sustenance. There was a very impressive body of evidence that Bardi speaking people have had an intimate association not only with the sea but with the sea in these particular regions and furthermore that the association has been a longstanding one. That impression was reinforced by the list of meteorological terms offered by Smith & Kalotas in 1985 and reproduced by Dr Metcalfe. They clearly refer to a tropical climate and locate Bardi speaking people in the tropical zone. The list of demographic and directional terms was very significant as it was indicative of speakers’ awareness of themselves as members of a larger group to which the particular settlement pattern applied. The list also indicated speakers’ awareness of the extent of the country in which the people who used the particular terminology live. The section on connection to country in his opinion was the most interesting part of Dr Metcalfe’s report and the one most likely to be of use to the applicants.

780 Dr Clendon obviously regarded Dr Metcalfe’s report as lacking substance in important respects. He criticised Dr Metcalfe’s methodology as relying far too heavily on unsubstantiated claims made by earlier writers. Typically Worms was quoted on p 18 with respect to linguistic and social closeness between the Jawi and the Bardi. But Dr Metcalfe did not point to any evidence to support his contention. Stylistically he regarded Dr Metcalfe’s report as too apt to subjective assertion.

781 In my opinion, what I can take from Dr Metcalfe’s report and Dr Clendon’s report is that the Bardi and Jawi language groups are closely related and that the Jawi language may be regarded as a dialect with respect to Bardi. This may be regarded as consistent with the proposition that Bardi and Jawi could be regarded as one society for the purposes of a native title determination. It is not however, as will emerge later in these reasons, conclusive of that proposition.

782 Certainly the evidence brings out the long-standing connection to country reflected in the detailed references in the languages to aspects of the environment. That detail is indicative of the accumulation of knowledge over a lengthy period of time. That aspect of the linguistic evidence supports, in my opinion, continuous connection of both Bardi and Jawi people with the country of the claim area since before 1829. It also supports the inference that the immediate offshore marine environment was an important element of their country.

Anthropological evidence – approaches to admissibility and weight

783 The applicants relied upon a number of reports prepared by Mr Geoffrey Bagshaw and Ms Katie Glaskin. No anthropological witnesses were called by the respondents. Mr Bagshaw is a consultant anthropologist. He holds a Bachelor of Arts (Honours) in Anthropology from the University of Adelaide which he received in 1977. He conducted extensive field work in Arnhem land for doctoral research between 1979 and 1982. Since 1982 he has worked as a consultant anthropologist and has undertaken field research in north-central and north-east Arnhem Land, Central Australia, the Katherine region of the Northern Territory, the west and south-east of South Australia and, since mid 1995, the south-west Kimberley.

784 Ms Glaskin was awarded a post graduate Diploma in Anthropology at the University of Western Australia in 1993. She was employed by the Kimberley Land Council as a land tenure officer in 1993 and 1994. She began doctoral research at the Australian National University in Canberra in 1996 and has undertaken various anthropological consultancies since that time. She has also undertaken field research in other areas of the north-west Kimberley and south-west Queensland. At the time of the litigation she was writing a doctoral thesis in the Department of Archaeology and Anthropology at the Australian National University.

785 The reports prepared and relied upon are as follows:

1. Anthropologists’ Report by G Bagshaw, February 1999 (X-AI)

2. Anthropologists’ Supplementary Report: Aspects of Bardi and Jawi Marine Tenure and Resource Usage, by G Bagshaw and K Glaskin, October 2000 (X-AJ)

3. Errata & Addenda dated 22 December 2000 to Anthropologists’ Reports of February 1999 and October 2000

4. Applicants’ Additional Anthropological Report concerning Distribution and Spatial Extent of Local Estates (BUR[U]) within the Bardi and Jawi Native Title Claim Area, G Bagshaw, February 2000 (X-AM)

5. Bardi and Jawi Supplementary Anthropology Report Parts 1, 2 & 3, G Bagshaw, August-September 2001 (X-AL)

786 There were extensive objections to various parts of the anthropological reports prepared. However in the Applicants’ Submission in Reply as Facts to be Found, filed in Court on 15 November 2001 as part of closing submissions, it was stated at [13]:

‘It is not proposed by the Applicants that they contest any of the objections to the admissibility of portions of the expert reports. The Applicants are content to rely upon the oral evidence as to the facts available and what was otherwise observable by the Court to support the expert opinions necessary to prove the case for the Applicants.’

Express reference was made to this concession in the oral submissions on the same day. There was quite extensive cross-examination of Mr Bagshaw and cross-examination of Ms Glaskin at the first trial.

787 In the written submissions made at the close of the first trial the applicants chose not to respond in detail to those submissions beyond some general propositions. They made the following points:

1. Mr Bagshaw, assisted by Ms Glaskin, had performed a task of formulating an anthropological analysis of traditional laws acknowledged and traditional customs observed by the Aboriginal people who by those laws and customs have a connection with the area the subject of the application.

2. The task was performed initially prior to the lodgment of the claim. It formed the basis for that lodgment and was built upon as a basis for the manner in which the evidence had been presented in support of the claim. It was made clear in those submissions that the applicants’ legal representatives had relied upon Mr Bagshaw’s analysis and his assistance in eliciting the evidence which he relied upon to support that analysis.

788 Mr Bagshaw and Ms Glaskin were the only anthropologists called in this case. They were closely associated with the preparation of the applicants’ claim. They were involved in collecting evidence by way of field work including interviews with members of the putative native title claim group. Their reports involve statements that Bardi and Jawi beliefs and customs based, for the most part, on what they were told by members of the group. They were based also upon the content of relevant literature by other investigators.

789 On 22 February 2001 Beaumont J directed that they identify the information upon which they had relied in forming the opinions expressed in their reports and the processes of reasoning which led to their opinions. In particular, they were asked to identify:

(a) information taken into account but not specifically mentioned;

(b) information rejected as unhelpful because it was unreliable or irrelevant.

790 The response from Mr Bagshaw in a letter dated 20 March 2001 was to the effect that he could not practically comply with the directions. He referred to various opinions which he had expressed in the report and said that they were based upon ‘a consideration and appraisal of the whole of the information gathered during the course of my fieldwork’. To respond to the direction would require identification of ‘hundreds if not thousands of individual items of information which either directly or indirectly informed the nine opinions referred to...’. It was ‘in practical terms impossible’.

791 He could not recall, he said, a particular glaring instance of rejecting any information as unreliable or irrelevant. He concluded his letter with the statement that he had ‘properly considered all information presented’ during the course of his fieldwork. He considered his report to be ‘a balanced appraisal and analysis’ of the information. The letter of Mr Bagshaw was adopted by Ms Glaskin. The response elicited comment particularly from the Commonwealth in the light of cross-examination which indicated that certain matters of information given to Mr Bagshaw had not seen the light of day in his report. In the event it did not go to the admissibility of his report. It was a matter for comment.

792 Aspects of the reports offered what might properly be called argumentative or taxonomical conclusions or inferences relevant to the claimed determination of native title. To call them such is not necessarily to denigrate them. The judgment of the Court in determining the application is in part evaluative. The Federal Court Rules recognise that there are aspects of so called expert testimony which are argumentative and can be treated as submission. Order 10 r 1(2)(j) provides:

‘Without prejudice to the generality of sub-rule (1) or (1A) the Court may –

...

(j) in proceedings in which a party seeks to rely on the opinion of a person involving a subject in which the person has specialist qualifications, direct that all or part of such opinion be received by way of submission in such manner and form as the Court may think fit, whether or not the opinion would be admissible as evidence.’

The rule of court was developed in part to respond to concerns about the way in which rules of evidence might lead to the exclusion of helpful economic testimony in competition law cases. Economic experts typically offer opinions about questions such as market definition relevant to the application of particular provisions of the Trade Practices Act 1974 (Cth). Such opinion is by way of characterisation of primary evidence and is essentially argumentative in character albeit the characterisation is informed by relevant expertise. An anthropologist, as in the present case, may offer an opinion on whether a particular group of people constitute a distinct or discrete society of persons. The nature of the taxonomical exercise is conceptually similar to that undertaken by the economist.

793 There is potentially some tension between the recognition that expert testimony may have the character of submission and the Practice Direction relating to expert witnesses which contemplates acceptance by the expert of a duty to the court in providing opinion evidence and which rejects the proposition that the expert is simply a ‘hired gun’ for the party who calls him or her. That tension and associated difficulty in the way of accepting expert testimony as evidence can arise where the opinion offered becomes advocacy for a particular outcome.

794 It should not be a matter for surprise that in gathering of information anthropologists dealing with the indigenous people who are their primary sources may develop a relationship of mutual trust with them. That may engender an expectation of support and advocacy for the peoples’ claims and perhaps some sense of obligation on the part of those gathering the information. This does not prevent the Court from receiving the evidence or entertaining the opinions advanced, but they will attract close scrutiny against the primary evidence available to the Court and other expert witnesses who are unencumbered by any recent history of affiliation with the people or involvement in their particular cause.

795 In this case criticisms were made that Mr Bagshaw had been selective in certain respects. Selectivity in the information invoked in aid of the case of the people for whom an anthropologist is called will detract from the credibility of that person’s testimony and the value accorded to the opinions offered whether they be treated as evidence or submission. The Court can recognise the reality of the relationship that may develop between an anthropologist and his or her clients and scrutinise the opinions accordingly. It will give greater credence to those anthropologists who show that they have used their best endeavours to offer the Court a picture of the group or society concerned that takes into account all factors relevant to the opinions being advanced. This includes factors which might indicate an adverse hypothesis. Inconsistency should not be glossed over or omitted. It may be expected that when accounts of traditional law and custom are given by a range of individuals to an anthropologist there will be variants of those accounts, differing levels of detail, incidences of forgetfulness or misunderstanding and inconsistency. All of these things are to be expected in the acquisition of information relating to oral traditions.

796 The Commonwealth in this case invites the Court to reject inferences of fact offered by Mr Bagshaw and Miss Glaskin which the Court could as readily draw on the basis that such inferences are not exceptions to the hearsay rule. The Court, it is said, should exercise its discretion under ss 135 and 136 of the Evidence Act 1995 (Cth) to restrict the use of hearsay evidence relied upon by the anthropologists which could have been given through lay witnesses. In any event it is said the Court should give little weight to the opinions not founded on evidence of lay witnesses or facts otherwise proven. Various specific objections were made by the Commonwealth together with an objection to such of the genealogies as were not supported by primary evidence.

797 The rules of evidence applicable to the receipt of expert evidence are to be found in the Commonwealth Evidence Act 1995. The opinion rule set out in s 76 is in the following terms:

‘Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.’

One of the exceptions to the rule is the case of expert evidence as set out in s 79:

‘If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.’

Also relevant is the hearsay rule in s 59, which provides:

‘(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.’

A relevant exception is to be found in s 74, which provides:

‘(1) The hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right.

...’

The discretion conferred on the Court by s 82 of the Act is also relevant in these proceedings:

‘Federal Court’s way of operating

Rules of Evidence

(1) The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

...’

798 The application of the provisions of the Evidence Act to anthropological expert evidence was discussed by Sundberg J in Neowarra v Western Australia (No 1) (2003) 134 FCR 208. His Honour referred to the common law ‘basis rule’ that to be admissible expert opinion must be based on facts proven by admissible means or on facts ‘sufficiently like’ the facts properly proven to be of value – Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64] per Heydon JA.

799 As Sundberg J observed the basis rule is not a feature of s 79 of the Evidence Act. The conditions in that section for non-application of the exclusionary rule contained in s 76 are that:

1. The person whose opinion is in question must have specialised knowledge.

2. The specialised knowledge must be based on the person’s training, study or experience.

3. The person’s opinion must be entirely or substantially based on that specialised knowledge.

There is ample authority, cited by his Honour, for the proposition that the basis rule is not mandated in respect of expert opinion. His Honour said, however, at [23]:

‘While the legislation does not incorporate a “basis rule”, an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the Court to determine whether the opinion is wholly or substantially based on the expert’s specialised knowledge which in turn is based on training, study or experience.’

He referred to HG v The Queen (1999) 197 CLR 414 at [39] per Gleeson CJ. On the basis of that authority and the statutory language his Honour concluded that it is not a condition of admissibility of an expert opinion that the assumed facts on which it is based are established by the evidence. If they are not then the weight to be accorded to the opinion may be reduced (at [27]). See also Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [87] per Weinberg and Dowsett JJ.

800 It may be as Selway J pointed out in Gumana v Northern Territory of Australia [2005] FCA 50 at [156] that the ‘expert’ opinion offered is not really opinion evidence at all. Anthropological evidence which results from significant fieldwork over a lengthy period may be the direct evidence of observations that the anthropologist has made. Similar evidence may be given by others such as the clients themselves or people such as teachers who have worked with them for a long period.

801 In the present case the bulk of the anthropological evidence appears to have been based upon information provided by Aboriginal persons to the anthropologists. It is supported by reference to other writers.

802 Evidence derived from what the anthropologist has been told may be based upon hearsay. To that extent it may be based upon facts not able to be proven by admissible evidence. This can be said to raise the ‘basis rule’ question again in so far as what is offered by the anthropologist is opinion evidence based upon such hearsay. If compliance with the basis rule is not a necessary condition for the admissibility of expert opinion evidence it follows that expert opinion evidence based upon hearsay is not thereby inadmissible. As Sundberg J said in Neowarra at [37]:

‘Because any common law basis rule has not been imported into s 79, so that at the stage of admissibility there is no requirement that the facts upon which the expert’s opinion has been formed be supported by admissible evidence, the fact that an expert’s opinion is based in whole or in part on a “fact” supported by hearsay, is not a ground upon which the opinion must be rejected. In any event, an expert’s opinion that is based on “facts” supported by hearsay is prima facie admissible under s 60.’

His Honour went on to observe that subject to the application of ss 135 and 136 of the Act which authorise the exclusion of evidence whose probative value is substantially outweighed by, inter alia, the danger of unfair prejudice to a party, hearsay material on which an expert’s opinion is based will qualify for admission as relevant to the basis on which the expert holds the opinion. If it qualifies, it can then be used as proof of the fact intended to be asserted. The weight to be accorded to it is a matter for the Court (at [38] per Sundberg J).

803 I am prepared to treat as admissible the reports prepared by Mr Bagshaw and Ms Glaskin notwithstanding the objections taken by the Commonwealth. In my opinion there is a sufficient quantity of direct evidence from Aboriginal witnesses to enable an assessment to be made of opinions offered on the basis of that kind of material even though there may be no detailed account of all the information on which Mr Bagshaw formed his conclusions. There are, in any event, significant practical obstacles in requiring the proof of every item of factual material upon which opinions of this kind are based. They are difficulties analogous to those which would be created by requiring that survey evidence be supported by proof of each of the answers given by all respondents to the survey. A number of the opinions offered by Mr Bagshaw and Ms Glaskin are best described as argumentative inferences upon which the Court will draw its own conclusions. However they do provide convenient points of reference in the midst of descriptive material to identify questions on which findings should be made. Where such conclusions are offered they are assessed against the evidence which the Court has heard and the Court’s own finding indicated.

804 On the question of weight Mr Bagshaw’s role as a person closely involved in the presentation of the applicants’ claim means that his opinions should be treated with a degree of caution. But as Selway J said (at [163]):

‘Evidence of opinion is not inadmissible merely because the person giving the opinion is not ‘independent’.’

Generally speaking, I accept the descriptive evidence given by Mr Bagshaw of Aboriginal law and custom and beliefs in the claim area. There is substantial support for his evidence in that respect from the testimony of the Aboriginal witnesses.

805 In respect of the genealogies I am satisfied that notwithstanding that they may have a hearsay character, they should be admitted. To the extent that the rules of evidence could prevent me from doing so, I would order, pursuant to s 82 of the Act, that they not apply to exclude them. I would not regard their admission as unfairly prejudicial. The question of their weight is another matter. This can be tested in part by the extent to which they are confirmed by direct evidence in the case from Aboriginal witnesses.

Anthropological evidence

806 It is convenient to outline the content of the Bagshaw and Glaskin reports, less those objections which were conceded.

807 Mr Bagshaw’s first report was based largely on 104 days of anthropological fieldwork conducted in the claim area and its surrounds between November 1994 and February 1999. He also relied upon literature research and archival study. The fieldwork was primarily conducted with the communities of One Arm Point, Lombadina and Djarindjin. He made field visits to a number of regional outstations, being Guwarngun, Ngamagun, Mardnan, Bulgin and Garramal. He undertook information gathering trips by boat to offshore locations. In July 1997 he traversed much of the Buccaneer Archipelago by boat. Most of his field research was conducted with the assistance of Ms Glaskin. She took detailed verbatim notes of many of the interviews he conducted with his Bardi and Jawi informants.

808 Mr Bagshaw described the claim area as ‘areas of non-freehold land and sea in and around the northern Dampier Peninsula and Buccaneer Archipelago regions of north-west Western Australia’. It encompasses land and seas within the traditional territorial domains of ‘two distinct, yet closely related, Aboriginal peoples’. These peoples refer to themselves and their respective traditional languages as Bardi or Bard and Jawi. Bardi territory includes the entirety of the northern Dampier Peninsula, the islands and submerged lands such as reefs, rocks, sand shells and seabed immediately adjacent to it and the surrounding sea and seabed. The remainder of the claim area, that is the islands, seas and submerged lands of the western Buccaneer Archipelago is locally regarded as Jawi territory. The neighbouring territorial domains include those of the Nyulnyul people to the south and south-west, the Nimanburr to the south-east and Ungarrangu to the east. Mr Bagshaw referred to ethnographic maps of the region compiled by previous researchers as broadly supporting the description of the general location and demarcation of Bardi and Jawi territories in the claim area. Appendix 1 incorporated reproductions of seven earlier ethnographic maps of the northern Dampier Peninsula-western Buccaneer Archipelago region (also reproduced in X-AO). Mr Bagshaw accepted these maps as showing, with varying degrees of accuracy, the general locations of traditional Bardi and Jawi territories. The first map was taken from the work of H Petri, published in 1938-40, the second, third and fourth maps from work by NB Tindale published in 1953 and 1974. The fifth and sixth maps were taken from the work of Michael Robinson, published in 1973 and the seventh map taken from the work of Smith & Kalotas, published in 1985. Full references to their work were set out in Appendix 1. Mr Bagshaw noted that a further unpublished map of the region was produced by AP Elkin in 1928. It took the form of a large pastoral map of the Kimberley Division dated 21 January 1915 with Elkin’s hand written annotations. It showed the locations of many Bardi sites on the Dampier Peninsula. Sunday Island was identified specifically as ‘Irwan’ with the notation ‘Djau lang’. The Jackson Island area was identified as ‘Lang. Mixed Djau and Bard’.

809 The eastern boundary of the native title claim area as it was when Mr Bagshaw’s report was prepared followed the mid line of King Sound. Although traditional Jawi territory extends well to the east of this line it was not incorporated in the claim as lodged. This was due to issues about native title claim representation at the time of his initial research in late 1994. According to Mr Bagshaw these issues were resolved between 1995 and 1998 and the remaining Jawi territorial interests not covered by the claim are represented in the context of the abutting Mayala region native title claim.

810 The southern boundary of the claim follows the line of the Beagle Bay Aboriginal Reserve boundary. Mr Bagshaw says that this decision was taken despite the fact that southern Bardi people maintain that their traditional interests extend some distance south of that line particularly in the area around Borlk, otherwise known as Kelk Creek.

811 He gave a brief physical description of the land which was not contested. The coast of the Dampier Peninsula includes areas of rock, reef, sandbanks, extensive sand beaches, tidal flats both saline and mud, mangroves, paperbark thickets, dunes, rock outcrops and low cliffs. The semi-arid peninsula hinterland is low-lying with thin, sandy soils that support a dominant cover of scrubby eucalypt and acacia woodland (bindana).

812 The islands of the western Buccaneer Archipelago are generally small and rocky and sparsely vegetated. Many are fringed with small beaches and stands of mangroves. Nearly all of them are surrounded by extensive partly exposed reef platforms. Most of the larger islands including Jayirri, Jaylan and Iwanyi contain permanent sources of fresh water.

813 The sea zone includes ocean waters to depths of about 60 metres, shallower more turbid waters in King Sound and permanently and tidally submerged lands comprising seabed, rock and coral reefs, rocks and shoals which lie beyond the littoral areas of the peninsula and the archipelagic islands. There are what he described as ‘huge semi-diurnal tidal movements’ (save for neap tides). These have a typical daily range in the claim area of 6 to 8 metres. The waters around the Buccaneer Archipelago are characterised by powerful tidal streams, backwater currents, standing waves and whirlpools.

814 On the coast there are permanent naturally occurring fresh water sources including tidally inundated springs, dune wells, spring-fed billabongs and certain species of trees. Most of the permanent fresh water sources are located on or close to the peninsula and island coast.

815 In discussing the identity of the native title claimant group Mr Bagshaw referred to them in his 1999 report as the Bardi or Bard and western Jawi people. He used the term ‘people’ to refer to the total aggregation of individuals identifying themselves and locally identified by others as either Bardi or western Jawi. The term ‘western Jawi’ he adopted as a term of ‘ethnographic convenience’ referring to Jawi persons whose principal territorial affiliations lie with lands and seas within the claim area. There are other Jawi people with similar affiliations to abutting territory in the east. The total numbers of Bardi and western Jawi at the time of his report respectively numbered about 950 and 70 persons. The designations Bardi and Jawi he called ‘self-referential socio-linguistic designations’. This means they are proper names used by the persons concerned to refer to themselves, whether collectively or individually, and to their respective traditional languages.

816 Although in his opinion the Bardi and Jawi regard themselves as peoples with distinct social, territorial and linguistic identities, they also view themselves as being closely linked by an extensive range of socio-cultural, economic and historical factors many of which are regionally specific.

817 Mr Bagshaw referred to ethnographic literature on the Bardi and to a lesser extent, Jawi peoples, which ranges from 1910 to 1998. He referred to a number of works and set out at Appendix 1 to his 1999 report a full list of them. He cited literature relating to the languages of the Bardi and Jawi. There are two views in the literature. The first is that Bardi and Jawi are related dialects. The other is that they are distinct but closely connected languages. One of those who expressed the second view characterised Bardi and Jawi as ‘prefixing and non-classifying languages of the ‘Dampier Land subgroup’ of languages’, A Capell, 1940 The Classification of Languages in North and North-West Australia Oceania 10 (4) at 404-33. CD Metcalfe, in 1975, also noted that Bardi is not an exclusively prefixing language and observed that Capell’s subgroup is virtually identical to the Nyulnyulan family of languages. W McGregor, in 1998, included in the category of the Nyulnyulan languages Bardi, Jawi, Nyulnyul, Jabirrjbirr, Nimanburru, Ngumbarl, Jukun, Nyikina, Warrwa and Yawuru.

818 According to Metcalfe; 1975, there were approximately 360 speakers of Bardi and about a dozen semi speakers of Jawi. Many young people who identify as Bardi speak at least some of the Bardi language. However only members of the older generation are fully fluent. Most Jawi people, including a handful of remaining semi speakers of Jawi, are either fully or partly proficient in Bardi. The decline of Jawi as a spoken language is primarily attributable to the overwhelming numerical and social dominance of Bardi people within Jawi territory during the Sunday Island mission period.

819 Bardi distinguish regional speech styles. People from the Pender Bay area speak ‘slow Bardi’. Others on the opposite side of Dampier Peninsula speak a faster ‘light Bardi’. ‘Heavy Bardi’ refers to a relatively slow speech style which sometimes incorporates Jawi loan words and stresses voice final vowels. Throughout the claim area slow Bardi speakers generally say ‘Bardau’ or ‘Bardu’ while light Bardi speakers say ‘Bard’.

820 There are ‘emic’ bases of identification as Bardi or Jawi. The term ‘emic’ refers to a perspective which is internal to the culture. Mr Bagshaw contended that differential identification as Bardi or Jawi is from an ‘emic’ viewpoint primarily based upon certain kinds of personal connection to a specific estate or bur within the relevant geographical region. The connection is essentially spiritual in nature. For Bardi and Jawi alike, personal connectedness to country is exclusively established through filiation whether biological or imputed (ie by adoption), to a person who is so related to the estate concerned. The most significant mode of filiation in respect of territory is patrifiliation with the offspring of a Bardi or Jawi man identifying and being identified by others with his or her father’s estate. Sometimes matrifilial relationships are considered sufficient to establish the requisite personal connection even though rights in a maternally derived estate are in some respects qualitatively different from those associated with a paternal estate.

821 Referring to genealogical data Mr Bagshaw offered the conclusion that Bardi and Jawi people constitute an often closely related (ie within the space of one or two generations) community of kin (galamurdu arrinj). There is a high historically sustained incidence of intermarriage between the two groups. They have geographical and socio-cultural proximity and their relative population size is such that there is every reason to believe that the Bardi and Jawi people comprised a regional community of kin long before the coming of the first Europeans.

822 Other social, cultural and historical relations are said directly to link the two peoples. Several regional ethnographers have noted the socio-cultural proximity of Bardi and Jawi. Elkin wrote in 1933:

‘[f]or all practical purposes the Djaui seem, nowadays at least, to be identical with the Bardi.’

AP Elkin, 1933, Totemism in North-Western Australia(the Kimberley Division) Part II Oceania at 3 (4) pp 435-81

823 Robinson also regarded the Bardi and Jawi as socially and culturally homogeneous for most purposes – M Robinson Change and Adjustment Among the Bardi of Sunday Island, North Western Australia, 1973 MA Dissertation, Perth: University of Western Australia. Mr Bagshaw contended that despite intensified interactions between Bardi and Jawi in the post contact era the structural features such as systems of kinship, social organisation and local organisation common to both societies are sufficiently fundamental that they may be reasonably assumed to have developed well before European contact.

824 The system of kinship and social organisation used by both Bardi and Jawi is common and regionally specific. Its major features, according to the literature to which he referred, include:

(a) four terminologically distinct grandparental kin categories.

(b) the terminological equivalence of parents and their respective cross and parallel cousins.

(d) a principle of preferred marriage for males to women who are genealogically distinct or unrelated.

Bardi and Jawi social organisation is also characterised by absence of socio-centric features such as sections, subsections and patrilineal moieties which occur in most other Kimberley societies, including their immediate neighbours. Kinship remains the fundamental idiom of social relatedness for Bardi and Jawi alike. Many traditional kin-specific codes of behaviour such as mother-in-law avoidance are still widely observed.

825 The basic units of local organisation among both Bardi and Jawi peoples are exogamous patrifilial groups, each identified with a specific mythologically inscribed estate known as a ‘bur’ or ‘buru’. The members of each of these aggregates are regarded as traditional owners of the estate with which they are identified and are often known collectively by the name of that estate. Important individual rights are also recognised in maternal estates known as ningarlm and spousal estates known as gurirriny. Each of the patrifilial groups is associated with one of several broad loose-knit regional groupings. In the Bardi domain the major groupings of this kind are Gularrgon (the west people) Ardiolon (the north people), Baniol (the east people), Alanggon (the south people) and Inalabul (the islanders). The designation Inalabul is also generally applied to Jawi people. Banararr, referring to a north-east region, also describes certain mainland Bardi estates. Specific Jawi regional groupings within the claim area are Iwanyun (referring to Sunday Island people) and Bulnginy-Yur/Ralralol (referring to Poolngin and Salural Islands people). These regional designations are primarily geographical rather than social or cultural descriptors.

826 The genealogies attached to the report were said to demonstrate a long and continuing history of intermarriage between Bardi and Jawi peoples. Flowing from such unions there are numerous native title claimants with kin-based connections to estates in both territorial domains. Individuals principally identify with their paternal estates and so also with their respective fathers’ broader socio-cultural identity as Bardi or Jawi. They also acknowledge close links to, and specific rights in, the estates to which they are connected through matrifilial links. Affinal relationships engender significant rights in spousal estates so there are many Bardi and Jawi individuals with additional rights in each others estates. Mr Bagshaw offered the historically sustained pattern of intermarriage as the principal empirical basis for characterisation of the Bardi and Jawi as a single community of kin. (emphasis added). Accepting that there was a sustained pattern of intermarriage the question whether there was one Bardi Jawi society falls for determination later in these reasons.

827 There is a common cosmology among the Bardi and Jawi which underpins social and territorial relations. It is articulated through and affirmed in various rituals jointly and regularly performed by both peoples. Foremost among the locally performed rituals are the male initiation ceremonies of anggwuy, irrganj and ululung. Central to Bardi and Jawi cosmology are supernatural beings known as inamunonjin. They are responsible for the creation of sites and environmental features and the introduction of socio-cultural forms, practices and technologies such as marriage, male initiation, food taboos, fire and so forth. Both Bardi and Jawi hold the belief that human beings typically enter the world as incarnations of pre-existent and generally estate specific spirit children known as ray or raya.

828 The traditional economies of Bardi and Jawi were said to be similar in many respects. Both are primarily geared to the exploitation of littoral and maritime resources and both incorporated specialised technologies. These include stone fish traps known as mayurr and ayan-ayan, wooden fish traps, vegetable poisons for fishing and sea-going mangrove-log rafts. Bardi and Jawi also made and still make significant ritual use of pearl shell pubic pendants called riiji if incised and guwarn if plain. They were and, to some extent, still are traded out of the region to distant hinterland peoples. Economic relations between the Bardi and Jawi were primarily characterised by trade in commodities such as pearl shell, hairbelts (baali), boomerangs (irrgil) and mangrove logs (julbu). Elkin observed in 1928:

‘[t]he inhabitants of the Sunday and Pulgin (ie Bulnginy) Islands, through their language, Djaui (ie Jawi) was different to the Bard (ie Bardi), appear to have been an outlier of that tribe, at least economically and ritually.’

The Bardi and Jawi exploit the same marine resources, namely fish, turtle, dugong, shellfish and trochus shell. There is considerable movement on the part of both peoples, particularly Bardi, between their respective territorial domains. Marine resources provide the bulk of locally derived foods for Bardi and Jawi.

829 Mr Bagshaw outlined post-contact historical interactions on Sunday Island. A Christian mission operated on Sunday Island between 1899 and 1964. It was originally established as a non-denominational mission by Sidney Hadley, a pastoralist and pearler. It was eventually run by the Australian Aborigines Mission and its organisational successor, UAM. The mission attracted a significant number of predominantly northern Bardi mainlanders from the outset. Most sought European commodities, especially comestibles and continued to live on the island for extended periods. They came to dominate the language and socio-cultural life of the relatively small local Jawi population. Despite that cultural and linguistic dominance, both peoples maintained close and fairly harmonious social relations throughout the mission period. Many Bardi individuals, including some of the present claimants, were born or raised on Sunday Island. Numbers of Bardi people died there and several members of the contemporary Bardi population have relatives buried near the former mission. A significant portion of the present northern Bardi population has strong personal and sentimental attachments to the Jawi territory of Sunday Island. This is born out by both the historical evidence and the evidence of the Aboriginal witnesses.

830 Chapter 4 of Mr Bagshaw’s 1999 report dealt with cultural connection to the claim area. His main focus was upon territory-specific cosmology and associated ritual.

831 According to Bardi and Jawi traditions their lands and seas and cultural forms and practices making up the body of their customary law were created and bequeathed via generations of human forebears by supernatural beings, inamunonjin, who had occupied and/or traversed the Dampier Peninsula-Buccaneer Archipelago region prior to direct human experience of the world. They shaped features of the physical environment and imbued them with their eternal numinal essence. They named sites and set the boundaries of traditional territories and introduced the religious resources such as songs, dances, designs, objects, myths and rituals through which their activities would continue to be celebrated and affirmed. They also instituted the basic rules of customs regulating the social order. Bardi and Jawi referred to the totality of these resources, rules and customs in Aboriginal English by the term ‘Law’.

832 Mr Bagshaw referred to what he called the ‘emic view of a supernaturally authored system of law as both valid and enduring’. He referred to comments from J Rock and Khaki Stumpagee who spoke of the persistence of traditional Bardi and Jawi law throughout the Sunday Island mission period. This was illustrated by Khaki Stumpagee’s statement in his video interview with Mr Bagshaw in 1997 in which he described the peoples’ rejection of attempts by the missionaries to get them to abandon the Law.

833 The linkage of traditional law to sites and areas where it was first introduced or developed by its supernatural authors was described. Some sites called ngulungul are exclusively restricted to initiated males because of the degree to which they are imbued with creative power and the cultural products of the supernatural authors of the Law. For Bardi and Jawi their country is not only viewed as the physical domain in which traditional law is enacted. The elements of the law together with the supernatural entities from whom such elements are believed to have issued are seen as intrinsic aspects of the country itself. Again he referred to what Khaki Stumpagee said in the video interview:

‘Law belonged to country. Sunday Island got the Law. Bardi, mainland, they got the Law [...] That’s our Law too.’

834 Specific supernatural culture heroes identified in ethnographic literature are Galalung, Mino, and two other male figures whose names are locally considered to be secret. Galalung is primarily associated with the Bardi and Jawi region although there is a being of the same name and attributes recorded among the Jabirr Jabirr. Other beings link the Bardi and Jawi people to the south. Their travels are locally interpreted as a basis for ritual relations between Bardi and Jawi and other Aboriginal peoples across much of the west Kimberley. Specific rituals associated with the travelling beings include anggwuy, irrganj and ululung.

835 Mr Bagshaw discussed the sequential ceremonies of anggwuy, irrganj and ululung, each of which relates to male initiation. Anggwuy is a publicly performed rite of passage in which male novices are festively inducted into the company of men. Irrganj is the gender restricted circumcision ritual itself, which includes the post-operative recovery period during which initiates are taught certain aspects of ritual law. Ululung is a gender restricted revelatory ceremony under which certain recently initiated males are exposed to and instructed in secret ritual esoteric. Participation in these ceremonies confers particular ritual status upon males. Mr Bagshaw listed the status designations in ascending order of seniority as:

Lanyarr (painted novice in anggwuy)

Balil (circumcised irrganj)

Judjur (ululung novice)

Jamanunggurr (completed first ululung)

Gambil (next member of same circumcision cohort completes ululung)

Rungurr (decorated with head feathers)

Bungan (decorated, wears a single incised pearl shell [riiji])

Ilburr (fully decorated, painted with red ochre [bidimarr])

He confirmed that Bardi and Jawi males may only marry after ilburr status.

836 A number of men and women are recognised by Bardi and Jawi peoples as senior ritual authorities, known as madja in the singular and madjamadjin in the plural. Their principal responsibilities include the organisation, oversight and leading of major ceremonies, the creation and maintenance of ritual sacra and the protection of sacred sites. He identified as regional madjamadjin, Paul Sampi, F Bin Sali, Roy Wiggan, Aubrey Tigan, another Wiggan (deceased), Jimmy Ejai, Joe Davey, D Davey (deceased), Frank Davey, Peter Hunter, Albert Lennard, Charles Coomerang, Lochie Coomerang, Monty Wilfred, Leslie Stumpagee, Barry Stumpagee, M Coomerang (deceased), Elaine James, Maureen Angus and Patsy Ah Choo.

837 Mr Bagshaw described the jawul relationship whereby an initiated man is charged with the care of a ritual novice. The former is known as madja relative to the jawul. He is approached to fill the role of guardian by friends or relatives of the jawul. The guardian is always of the opposite generational moiety to the ward. Jawul and madja enter into a life long relationship. The jawul is obliged to provide the madja with unconditional economic assistance upon request which may include, but not be limited to, the provision of game, money and store bought goods. One person may have numerous jawul at any one time.

838 In the final and publicly performed phase of the irriganj rite known as nguril each new jawul sits with his own madja in a particular spatial grouping reflecting the relative geographical location of the madja’s country and regional aggregate. Mr Bagshaw offered the opinion that this symbolic arrangement of individuals and estate regions is a powerful expression of traditional connection to country. Having regard to the evidence of the Aboriginal witnesses referred to earlier, I accept that that general conclusion is amply supported by the evidence.

839 The ilma is ‘a specific category of publicly performed songs which together with their associated dances and ritual emblems serve to emphasise Bardi and Jawi affinity with and connection to the physical environment’. The songs, dances and emblems are held to be of extraordinary or supernatural origin. Men are believed to obtain ilma in the course of dream visits to particular locations or to receive them from various supernatural beings who reveal the relevant details in dreams. Again, the evidence of the Aboriginal witnesses bears out this observation. Many ilma songs focus on aspects of the marine environment.

840 There is a class of traditional ‘increase’ songs relating to aspects of the physical environment. Elkin described such songs as specifically aimed at ‘increasing the available supply’ of certain species including turtle among the Bardi and Jawi and dugong among the Jawi. The northern Bardi in Swan Point share a turtle song with the Sunday Islanders. The people of the Buccaneer Islands have a dugong song. It belongs to the people of Sunday and Jackson Islands. The turtle song and the dugong song were referred to by Khaki Stumpagee in his 1997 video interview. It appears to be the case however that these traditional ‘increase’ customs are no longer regularly practised or invoked.

841 There is a range of customary food taboos observed by Bardi and Jawi. Some are directly related to ritual status. Others are based on age, gender, kinship status and country. There are disciplinary restraints imposed in the connection with the irrganj and ululung rites. Age and gender based food taboos include prohibitions on the consumption of mudcrab eggs by young girls and Red Emperor fish by all but old men. The evidence of the Aboriginal witnesses amply supports the existence of the taboo on the eating of Red Emperor imposed and enforced by Galalung.

842 Mr Bagshaw also described the story, told to him by Aboriginal people, of a battle involving the entity Lululu. Lululu had been provided by local people with the tough meat of male turtles caught in the enclosed waters of the Gadiman billabong which was then the only place where turtles existed. One day he was mistakenly given the sweet fatty meat of a female turtle and realised that he had been duped by his supposed benefactors. He opened the channel between the coast and Gadiman billabong forcing the turtles into what is now the sea. Those who deceived him were attacked with a variety of weapons, including spears, boomerangs, shields, charcoal and ashes and his own arms. These weapons effected analogical transformations in his enemies who became fish and other species such as the black tipped shark (hit on the back by charcoal), the small black fin shark, the shovel-nose shark (hit on the head by a shield), the hammer-head shark (hit on the head by a shield), the black boomerang shark (hit on the back by a boomerang), the spotted eagle ray (hit in the back by a spear), the coachwhip ray (also hit in the back by a spear), the spotted mangrove ray (hit in the back by ashes), the garfish (squeezed by arms) and the kangaroo (hit on the hands by a boomerang). Lululu eventually went to sea and changed into a giant shark while the people transformed followed him into the salt water. Jimmy Ejai had given another version of the story in which salt water was created by the seagull being, Olorrgi, near the end ofthe battle. The seagull said: ‘garanju, garanju, garanju’ which meant ‘turn into salt water’. The beach sand turned into salt water and all the species that live in salt water jumped in. I accept that this story exists as a Bardi story.

843 Certain foods or natural species are not eaten or utilised because their names are either homonyms or homophones of the personal names of individuals with whom strict avoidance relationships are maintained. For example, Vincent Angus does not eat honey because his deceased mother-in-law’s English name was Annie. Rosie Bin Sali Manung does not use runguman, a species of mangrove crab for fish bait because her deceased mother-in-law had the same Aboriginal name. The barnman are natural species and products associated with estate-specific totemic entities.

844 Mr Bagshaw made the general proposition that for Bardi and Jawi country is both the source and locus of personal spiritual identity. The people believe that the offspring of Bardi and Jawi men inhabit the phenomenal world as incarnations of pre-existent spirit beings called ray or raya. These are generally described as small and for the most part playful and invisible children of both sexes. They live in specific locations throughout Bardi and Jawi territory including waterholes, springs, trees and rocks on the land or in the sea. That conclusion is supported by the evidence of most of the Aboriginal witnesses and I accept it.

845 The cultural emphasis placed upon raya as estate-specific and paternally instantiated entities is such that most Bardi and Jawi people can claim a spiritual connection to, and identity with, their respective paternal estate. This cultural emphasis is consistent with, and conditioned by, the closely related principles of patrifilial estate inheritance and patrilocal residence. Again, I accept that as a broad proposition.

846 Raya can approach a man in a dream or buwarra, often having first manifested as a natural species encountered during hunting or fishing. If the person is an individual endowed with special spiritual powers and insight, raya may appear directly to him. In such encounters the man asks the raya what it wants of him. The spirit child answers that it has chosen the man to be its human father and asks where its mother-to-be is. The raya enters the body of the man’s wife and emerges ultimately in human form as a baby at the end of her pregnancy. This is supported by the ethnographic work of Elkin in 1928 and the evidence of the Aboriginal witnesses.

847 There are other estate-specific totemic entities called jarlnga. They take the form of natural species or features to ‘protect’ estate-affiliates from danger and to make their enemies sick. By way of example white pipe clay or maanga can adversely affect the affiliates of the estate in which it is found if deposits of it within the estate are exploited by others without the permission of estate affiliates. The term jarlnga also refers to an individual’s soul or spiritual core derived from or closely related estate-based jarlyna. Barnman is employed in much the same sense as jarlnga to connote estate-based totemic entities and the individual soul and its powers.

848 Mr Bagshaw spoke of the ‘large and extremely rich corpus of site-specific and environment-focused mythology’ possessed by Bardi and Jawi. Bardi and Jawi myths typically account for the supernatural creation of sites, natural features and/or species, the demarcation of territory and the introduction of technology, social institutions and behavioural norms. In trying to convey a sense of the content and meaning and territorial specificity of the mythology, Mr Bagshaw outlined some of the myths pertaining to Lululu the gigantic shark, variously described as a blue/grey, white or tiger shark. The ‘battle of Gadiman’ is geographically specific and highly didactic containing clear references to the mythical inscription of known country and to normative social values and practices. It specifically emphasises the importance of caring for the elderly and sharing food with countrymen on an unrestricted basis. Failure to meet such obligations is worthy of punishment. The general theme of obligation is also apparent in another Lululu myth in which the giant shark is characterised as the protector of mariners.

849 Mr Bagshaw set out his view of the land and sea tenure system of the Bardi and Jawi. He described it as ‘primarily based upon discrete local estates known as bur (alternatively pronounced as buru)’. Each buru has a proper name often derived from the name of a major site or area within it. The estate names are commonly extended to members of the patrifilial group or groups identified with the relevant territory. By way of example, ‘Nilagunbur’, refers to a particular Jawi estate on Iwanyi (Sunday Island) and also to the persons who belong to the patrifilial group which is associated with it. Estates typically consist of a constellation of named sites, most of which are located on or near the coast together with surrounding tracts of land and sea. Near-coast estate boundaries are defined by environmental features such as trees, creeks, rock, beaches and marine passages. The central interior of Bardi country and distant offshore areas generally lie outside specific estate boundaries. He described the land area of each buru as ‘typically quite small’. So Mardnanburwhich is near Skeleton Point is about 6 square kilometres. Jayirribur, which is centred on Jayirri (Jackson Island) is not more than 4.5 square kilometres. Offshore areas however, may be quite extensive. Tidally exposed areas which are directly connected with or immediately adjacent to island or mainland coasts are held to form part of the buru territory and so are regarded as components of the relevant onshore estates. The marine resources in such areas are traditionally considered as belonging to patrifiliates of the relevant buru and should therefore only be exploited with their consent.

850 There are named sites within Bardi and Jawi estates which usually include locations of mythological significance and camping places. Some mythological sites are exclusively restricted to initiated men. These are ngulungul. They include some offshore sites. Named natural features include hills, swamps, points, beaches, sand hills, tidal currents, reefs, offshore rocks and passages between islands. Map 3 attached to the report, focussing on the area in and around Jayirribur, illustrated the density of named sites and natural features generally found within Bardi and Jawi estates.

851 Specific names are also extended to distant offshore sites and features. An example is the naming of Brue Reef as Juljinabur. Brue Reef is accurately described in the report as a tidally-exposed coral reef and sand shoal located about 25 nautical miles north of Swan Point. Other examples of remote offshore features with specific names are the islands of Juwarnan (NW Twin Island) and Murrudulan (SE Twin Island) both of which were exploited for yams and seabird eggs by the raft-using Jawi. Indicative site-maps covering much of the claim area had previously been drawn up by Robinson and Smith in 1973 and 1993. There are listings of Bardi site names and locations by Worms in 1994 and Nekes and Worms in 1953. On the basis of his own experience in the region which had included several periods of direct and remote mapping, he estimated that genuinely comprehensive site-mapping of the entire region would take several months of concentrated work. In Table 1 in his report, Mr Bagshaw set out some 70 names of sites and natural features illustrated on map 3. Many of the names have been referred to in the oral evidence of the Aboriginal witnesses. They indicate the high density of Bardi and Jawi naming of the landscape of the claim area. There were previous studies of the number and distribution of buru. Elkin in 1928 said he was able to identify 42 buru although he listed only 40 territories in his unpublished field notebooks. Robinson, in 1973, recorded the names of 46 Bardi buru and 12 Jawi buru which he also characterised as patrilineal territories, local group sites and estates. Of these 14 Bardi buru and 8 Jawi buru were associated with living persons at the time of his field work. Three of his listed Jawi buru lay outside the present claim area.

852 Mr Bagshaw suggested that these earlier registers of Bardi and Jawi estates should be treated with some caution. Elkin and Robinson had inadvertently conflated the names of particular sites with those of broader estates which typically encompass numerous sites. Accepting that estate names are often derived from major site names, the failure of these ethnographers to consistently distinguish between the two categories had led them incorrectly to conclude that each of the names they recorded was associated with a distinct ‘patrilineal horde’ or ‘patrilineal descent group’. He gave some examples of this conflation. He maintained that Robinson had incorrectly identified at least two Bardi estates as Jawi. His informants had identified both Jayirri (Jackson Island) and Jalan (Tallon Island) as Inalabul Bardi, that is to say islander Bardi territory.

853 Mr Bagshaw’s Bardi and Jawi informants had identified a total of 24 estates or buru with living patrifiliates, whether through birth or paternal adoption. They included 20 Bardi and 4 Jawi buru. Additional estates with no surviving patrifiliates were also identified. The populations of the patrifilial groups associated with the former estates currently range from 1 to about 85. He listed in Table 2 in his report, the names of all extant Bardi and Jawi buru which he said were identified by his informants and set out their general locations on map 4. The Bardi estates represented in his lists were the following:

1. Garramalbur

2. Maljinbur

3. Ngililngbur

4. Miligunbur

5. Mardnanbur (also referred to as Bayanganbur)

6. Garrambanybur

7. Ardnagumbur (also referred to as Borrgorronbur)

8. Ardiolonbur

9. Jayirribur

10. Marraljinanbur

11. Gunundubur (also referred to as Gambarnanbur)

12. Ngarrinarrbur (also referred to as Lirimarrbur)

13. Barinybarrbur

14. Mardudbur

15. Ngamagunbur (also referred to as Gulamunonbur)

16. Jarrinyanbur

17. Jilirbur

18. Janggurrinyanbur

19. Ngambinanbur (also referred to as Jurdudbur)

20. Gurrbalgunbur

20A. Imbalgunbur (located in Bells Point on southern shore of Pender Bay)

Jawi

21. Gulnginybur

22. Biliny-bilinybur

23. Nilagunbur

24. Umbinarrbur

The list of buru so set out includes corrections made by the list of Errata and Addenda prepared by Mr Bagshaw in December 2000.

854 Bardi and Jawi primarily inherit country and associated rights in country by way of patrifiliation, a point which Mr Bagshaw said was consistently emphasised by all of his informants. This is brought out clearly in the oral evidence given by the Aboriginal witnesses. Through patrifiliation, whether the biological or social father is Bardi or Jawi, each individual becomes a member of an exogamic kin-aggregate or patrifilial group which is identified with, and responsible for a specific mythologically inscribed estate or buru and its associated religious resources. Bardi and Jawi frequently explain such identification in responsibility in terms of the belief that a man and his offspring are, in many cases at least, incarnations of estate-specific raya. Again, this is borne out by the oral evidence of the Aboriginal witnesses.

855 Individuals can become identified with, and responsible for, an estate through paternal adoption (andala) which amounts to an alternative culturally legitimated mode of patrifiliation. The offspring of the Bardi or Jawi woman and a non-Bardi or Jawi man may be raised by a Bardi or Jawi man thereby regarded as the child’s social father. Often the social father is the actual husband of the child’s mother. Elizabeth Puertollano is one example of paternal adoption. She was the daughter of the Bardi woman Wobijarr and the English beachcomber Harry Hunter. However, she was ‘grown up’ by Jarni, who was her mother’s Bardi husband. She considered herself and was regarded by others as a traditional owner of Jarni’s Jilirbur estate.

856 Most of the estates are owned by a single patrifilial group. Its adult members can readily trace their mutual genealogical connection. In some instance such as Mardnanbur, upper generational connections between individuals are uncertain or imputed. This is ultimately a consequence of time and the universe shallowness of genealogical memory and the comparative relational proximity of paternal forebears. Where relationships are uncertain, individual families identify with definite sites within the same buru while at the same time acknowledging the overall unity of the estate. In the case of Jayirribur two apparently unrelated patrifilial groups had members identifying different localities in the same buru.

857 Individual estate-affiliates are gamelid in respect of their estates. The term connotes intimate familiarity with country. A gamelid is a person who, together with his or her father, is from a particular country. It conveys the sense of an individual who is known to the country itself. So country, again consistently with the oral evidence of the Aboriginal witnesses, is conceived of as an active physical and metaphysical entity. Identification with a particular buru places the individuals so identified under particular obligations to ensure that their territory is not damaged, defiled or used in ways which are inconsistent with customary practice. This includes obtaining permission for proposed activities within the estate. If harmful activities occur there is a wide belief that physical harm or even death will befall estate-affiliates and perpetrators.

858 Nimalj rights refer to limited rights of access, residence and usufruct which estate-affiliates can grant in respect of their own buru to unrelated or distantly related persons. Mr Bagshaw interprets the word as meaning ‘authorised use’. So an individual may be granted nimalj to fish at a certain spot or to exploit particular fruit trees or ochre deposits. A person may also be given nimalj to reside in and/or exclude others who are not estate-affiliates from a particular locality within a buru. Unless voluntarily relinquished by the recipient nimalj rights are held on a permanent basis and may even be extended to bilateral descendents of the original holder.

859 Other derivative rights arise in relation to maternal estates, ningarlm and spousal estates, gurirriny. The holders of ningarlm and gurirriny rights are expected to defer to estate-affiliates who are identified with the estate through patrifiliation. They are expected to support them on estate related issues and to speak for and act on behalf of the estate’s physical and spiritual welfare. They may therefore assist in controlling access to and movement through a given buru. Matrifiliates will generally take precedence over spouses.

860 Discussing the differing scope and distribution of rights in country, Mr Bagshaw made the point, which was also well supported by the oral evidence of Aboriginal witnesses, that those who are estate-affiliates enjoy the greatest rights in a buru by virtue of their spiritual identification with estate-specific supernatural beings and other totemic entities. Persons related by means other than patrifiliation hold rights consonant with their culturally defined relational proximity to the estate-affiliates and to the religious resources of the estate itself. Mr Bagshaw advanced the proposition in this part of his report that it may reasonably be said that all persons with a recognised kin-base connection to an estate have at least some form of ownership interest in it. This underscores the inherently communal nature of Bardi and Jawi territorial ownership. A similar view was advanced by Verdon and Jorion in 1981 at a broader anthropological level identifying ‘ontological distance’ as a fundamental determinant of the ‘intensity’ of estate ownership. ‘Ontological’ distance refers to the relative degree of cultural and metaphysical identification with estate-specific supernatural beings and associated religious resources. It is a scale to measure a ‘gradient of rights of ownership’ stemming to a certain degree from occupancy and the use of the land surrounding the totems. Verdon and Jorion wrote:

‘[A]ll who exploit the land ‘own’ it, in the sense that they enjoy privileged access to it, but some own it more than others. Those who own it the most with respect to the criterion of occupancy are, at the same time, those ontologically closest to the [supernatural] ancestor[s] whose sites are located on that land, and who can therefore have claimed to occupy the land since its creation.’

Verdon N and Jorion P (1981) The Hordes of Discord: Australian Aboriginal Social Organisation Reconsidered Nan (NS) 16(1) pp 90-107

861 Mr Bagshaw considered the deceased estate or vacant buru. The membership of a particular local estate owning patrifilial group may become extinct. Factors leading to such extinctions are historically small populations, the failure of male patrifiliates to marry or produce offspring and/or the last surviving members of estate-owing groups being female. Specific examples of deceased estates are Jalanbur, Guljamanbur, Balangarnanbur and Lumardbur. Each is located within the Bardi territorial domain. Evidence which he had gathered, reflected in the oral evidence of the Aboriginal witnesses is that there are caretakers who exercise pro tem custodial responsibilities. These arrangements fall into the general category of ‘regencies’ or trusteeships exercising cultural oversight and control of territory formally belonging to deceased kin estates. Such regencies or trusteeships may be transitional stages along the path to estate succession proper. That is the incorporation of the deceased estate within the territory of a neighbouring buru. However, absent long-term reliable data, Mr Bagshaw was unable to make any more definitive statement on that matter.

862 In my opinion, the oral evidence of the Aboriginal witnesses clearly established on-going responsibility for vacant burus or deceased estates by people from neighbouring burus and in particular by lawmen or madjamadjin in respect of law grounds. It is not necessary for present purposes to determine whether those ongoing responsibilities foreshadowed some longer term process of incorporation into existing burus. The continuing responsibility, indicated by the oral evidence, exercised in respect of deceased or vacant burus supported the view that the estate rights fell within an overarching system of traditional law and custom defining the connection of the people to their land and waters.

863 Under the heading ‘Occupation and Exploitation’ in Part 6 of his 1999 report, Mr Bagshaw presented and discussed a range of data pertaining to past and present occupation and exploitation of the claim area by Bardi and Jawi people. He offered the opinion that the data firmly pointed to the conclusion that the area concerned had been continuously occupied and exploited by Bardi and Jawi over a period commencing well before the establishment of British sovereignty in Western Australia.

864 Most members of the current Bardi and Jawi population were born and grew up within the claim area usually at Lombadina mission, Sunday Island mission, Djarindjin or One Arm Point and most continue to live in the claim area. In 1998 when he prepared his report Lombadina/Djarindjin and One Arm Point were the largest local communities with populations of about 255 and 400 persons respectively. Extended family groups also lived for various periods in small outstations established on land of traditional significance. In 1994-95 there were some 15 outstation communities within the claim area.

865 Traditional resources used by the Bardi and Jawi throughout the area include fish, shellfish, crustaceans, turtle and dugong, bush foods and medicine, ochres and clay, fresh water and woods for weapons and cultural artefacts. Trochus, formerly gathered as a food source, has been commercially harvested for shell by Bardi and Jawi in the northern part of the claim area. These matters were generally borne out by the oral evidence of the Aboriginal witnesses and also supported in Mr Bagshaw’s report by the reference to other anthropological studies.

866 Introduced technology such as fishing lines and steel axes are used in contemporary fishing, hunting and foraging. However these things are still largely done according to customary practices. Food resources are still formally distributed among kin, known sacred sites are avoided and ritual food prohibitions are observed. Mr Bagshaw argued, that to the degree that these economic activities depend upon extensive culturally transmitted environmental knowledge, the continuing exploitation of traditional resources is the most obvious expression of long term physical and cultural association with the country. I accept that proposition about the words ‘cultural association with the country’.

867 There is what Mr Bagshaw called the ‘vast compendium’ of traditional environmental knowledge held by Bardi and Jawi people. Seasons, winds, animal habitats and behaviour, shark breeding behaviours, plant uses, water sources and topography and hydrography are included in what he designated as ‘foci of often minutely detailed observations and understandings’. Appendix 3 to the report attached a partial dictionary of Bardi and Jawi terms relating to the marine environment and its resources. It is not necessary for present purposes to reproduce that here. Many of the terms which appear in the Appendix were terms used by Aboriginal witnesses in their oral evidence.

868 Mr Bagshaw proposed the understanding and use of regional tidal currents as one of the most striking examples of Bardi and Jawi environmental knowledge. He characterised the offshore waters in the claim area, particularly in the Buccaneer Archipelago at the mouth of King Sound as ‘amongst the most treacherous coastal waters in Australia’. Tidal streams with velocities of up to 10 knots and countless whirlpools and tidal overfalls, present extreme hazards to navigation. He referred to the work of the early explorer, Phillip Parker-King published in 1827, Narrative of a Survey of Inter-Tropical and Western Coasts of Australia London: Murray cited in Hordern M, (1997), King of the Australian Coast: The Work of Phillip Parker-King in the Mermaid and Bathurst 1817-1822 Carlton South: The Miegunwah Press.

869 Bardi and Jawi adults, and men in particular, he said, know the locations, sets and relative strengths of all principal regional tidal currents referred to as lu and associated backwater currents, referred to as alngarda. All major currents are known by proper names. The word numurr refers to appropriate tidal conditions for sea travel, the locations at which such conditions are gauged and the actual tidal currents used to effect safe travel. Again, the oral evidence of the Aboriginal witnesses, supported the inference of an extensive awareness of the tidal currents which would necessarily have to be acquired in order to enable safe and effective use of the waters in the claim area where such currents occur. In the course of the second trial, the Court travelled by boat through the Buccaneer Archipelago and observed directly the surface indications of powerful currents.

870 A map of various named currents was annexed to the report. A number of the currents shown were objected to by WAFIC. Those numbered 10 to 15 however were not objected to. These were currents in the vicinity of Poolngin, Allora, West Roe Island and between West Roe Island and Mid Rock. The named tidal currents not objected to, set out in Table 4 of the report, were Jirrawanj, Gurirr, Ilarr, Jingaljirrirri, Jurundanggun and Unburrgunbard. It is not necessary for present purposes to identify each and every one of the named currents or lu forming part of Bardi and Jawi environmental knowledge. It is sufficient that from the evidence given by the Aboriginal witnesses associated with the islands, I find a comprehensive traditional knowledge on the part of the Islanders and northern mainland people, of currents in the waters around the islands to the north of the peninsula. In so saying I accept that the knowledge and use of those currents may have diminished to some degree over time. However there is still a substantial body of traditional knowledge in that regard.

871 Mr Bagshaw said that knowledge of the cultural geography of the country is a significant index of its long term occupation. Such knowledge includes site and/or area and estate names, site locations, estate boundaries and a familiarity with the ‘totemic landscape’. Much of this knowledge could only be acquired from generationally senior individuals and maintained in any depth through regular contact with the country to which it refers. In 1928 Elkin observed that it was striking to what a large extent each individual knows the country. There is a level of ‘fine-grain detail Bardi and Jawi continue to retain and display in respect of their cultural geography’. Site names, locations and associations as well as estate names and locations across the claim area remain very well known by most of the adult population, particularly in the northern part of the claim area. There is an especially strong awareness of the general locations of ritually restricted sites and the cultural requirements of persons other than initiated men to avoid them. Bush birth sites whether of forebears or contemporaries are also well known among the adult population along with locations from which personal names are often derived. The existence of a detailed body of knowledge of the cultural geography of the claim area is borne out by the oral evidence of the Aboriginal witnesses.

872 Physical evidence of long term occupation primarily consists of shell middens, former campsites, old burial sites, stone fish-traps and quarries. Shell middens, a matter of which Mr Bagshaw was able to make direct observations in the course of his field works, are found in many coastal and near coastal locations in the claim area. They are composed mainly of large quantities of mollusc material with additional shell and stone tool debris nearby. Such middens are situated in the sand dunes between Gregory Well and Ngamagun Creek. Their size and extent indicates lengthy Aboriginal occupation within the area and the importance of shellfish in the local diet. This is indicative of the economic significance of the littoral zone in pre and early post-contact times. The Bardi term for middens is gaanjimalin milamilonjun aamburiny jira which translates as ‘heaped shells/olden-time people/one’. This connects the features to the presence and features of earlier generations. Former campsites or barlabur exist in many locations along the peninsula and island coasts. They are generally located near coastal freshwater resources and many are still utilised today. Mr Bagshaw then referred to the work of other investigators who had recorded stone and shell artefacts in the Ngamagun area and identified early rock shelters and painting sites in the eastern Buccaneer Archipelago region. The archaeological evidence of Drs Smith and O’Connor support these observations and the conclusions drawn from them.

873 Burial sites reflected burial practices. The Bardi would traditionally place corpses in trees in the first stage of disposal of the dead. Seven to twelve months later the exposed bones were broken up, wrapped in paperbark and, where possible, deposited in caves. Bone depositories were located at Barringbarr (Swan Point), Jalan, Barninggun and Ninbolon on Sunday Island. Jawi tended to use rock graves or jirarr as an alternative to cave depositories. The corpse is placed under a rock ledge and enclosed by quantities of loose stone. One of these graves was photographed and recorded on Sunday Island.

874 Mr Bagshaw cited the extensive use of stone fish traps which is hardly a matter of controversy. North of the One Arm Point rubbish dump there is an extensive mayurr complex at Lalanan. At the time of Mr Bagshaw’s report it was still in use. Remnants of another type of stone fish-trap called ayan-ayan are also in the claim area. This generally incorporates an existing rock ledge from which a heaped stone ‘wing’ is constructed at an angle of about 30 degrees. Where the ‘wing’ joins the ledge, a small dammed area or pocket is made from rocks and mangrove logs. When the tide goes out, schools of fish enter the mouth of the trap. They are driven into the pocket by fisherman lobbing rocks behind them. Spears are prodded in the water to prevent the fish escaping. At low tide the fish are left stranded in the drained pocket. The remains of one such trap exists at Guwarngun on Sunday Island. A recent report by Dr Smith in 1997 recorded a total of 16 stone fish-traps including both mayurr and ayan-ayan types within the claim area. Traditionally each stone fish-trap or mayurr (the Bardi term) was constructed, operated and maintained by persons in whose buru it was located. People from neighbouring districts were usually invited to share in large catches.

875 Early historical records evidence continuity of Bardi and Jawi occupation and exploitation of the claim area over a period of more than three centuries. There is the extensive documentation of the period from the late 19^th century onwards. The records referred to by Mr Bagshaw were those of William Dampier, Phillip Parker King and John Lort Stokes. It is unnecessary for present purposes to review those references as they are covered in the historical evidence prepared by Drs Skyring and Green.

876 Bardi and Jawi subscribe to a ‘serial filiation construct’ with respect to patrifilial group continuity and inter-generational transmission of associated rights in country. This means a socially recognised relatedness to paternal forebears and the validity of membership within an estate-owning patrifilial group are expressly based upon and asserted through a culturally legitimated pattern of sequential or serial patrifilial relationships. In Mr Bagshaw’s assessment logical and temporal extension of the basic principle of patrifiliation enables Bardi and Jawi estate-affiliates to hold the view that in all cases other than those involving known deceased estates, they must necessarily be related to the first human owners of their respective buru through an unbroken sequence of patrifilial relationships. I accept that as a valid inference from the oral evidence of the Aboriginal witnesses.

877 Bardi and Jawi notions of relatedness to forebears and country are directly based upon and can be explained in terms of their metaphysical beliefs. Mr Bagshaw summarised the relevant belief:

‘(i) that the territories in question were mythologically inscribed for all time as Bardi and Jawi country by supernatural beings

(ii) that most (and certainly in traditional times, all) Bardi and Jawi people exist either as incarnations of localized (ie estate-specific) spirit-beings (ray), as reincarnations of deceased forebears who were spiritually identified with specific estates, or as incarnated spirit-doubles of living Bardi and Jawi individuals and

(iii) that all such incarnations are typically instantiated through the agency of estate-related human forebears (usually an individual’s genitor).’ (p 93)

878 There are various personal attributes interpreted by Bardi and Jawi as signs of relatedness to forebears and country. Two of the most important are names and birthmarks. Traditional personal names are often bestowed upon children. One of the most common forms of the practice is to name a child after a relative in the second ascending paternal or maternal generation. Examples are Paul Sampi known as Janganbirr and Elizabeth Puertollano known as Nilili. The chosen name can also refer to a particular site or environmental feature within the relevant estate. The cultural institution of the namesake or gumbali directly underscores and articulates the perceived continuity and enduring nature of identity between individual, estate and human ancestors. Birthmarks or lanbirr are interpreted as physical signs of connection to country and to ancestors. I accept those general propositions. They were exemplified by the oral evidence of Aboriginal witnesses that a man might spear game and find his next child born with a mark at the same place on his or her body as the game was speared.

879 Mr Bagshaw compiled genealogies recording the names of at least one Bardi or Jawi grandparent for each of the named native title claimants as well as for many other individuals. He attached a representative selection of these records to his report. Some of the eldest of the named claimants, such as Elizabeth Puertollano, Rosie Bin Sali and Khaki Stumpagee, all of whom were well over 70 years of age when he prepared his report, had significantly older biological siblings. The inclusion of their grandparents in their respective genealogies suggests that the relevant records probably cover a period of about 125 years. He proposed therefore that in some cases at least, current genealogical memory may be fairly presumed to stretch back to a time preceding sustained European contact in the region and the establishment of the first Christian missions at Goodenough Bay (1885), Beagle Bay (1890), Disaster Bay (1895), Sunday Island (1899), Cygnet Bay (1906) and Lombadina (1911). When this data is supplemented by that obtained by other anthropologists particularly Elkin in 1928, the period of recorded genealogical coverage for some Bardi and Jawi families extends considerably further back. Mr Bagshaw suggests that in all likelihood the extended coverage goes back to a date or dates well before the formal assumption of British sovereignty in Western Australia. He illustrated this with a reference to Elizabeth Puertollano’s genealogy.

880 Mr Bagshaw argued that the anthropological evidence for continuing Bardi and Jawi possession of their claim area in a manner consistent with their traditional laws and customs was quite strong. Ethnographic data supports the view that the lands and coastal waters of the claim lie within or close to traditional Bardi and/or Jawi territory. He referred to Elkin (1928), Tindale (1940 and 1974) and Robinson (1973). There is substantial ethnographic historical and material evidence of a long and continuing physical and cultural connection to the claim area. The nature of the connection is ‘demonstrably systematic, being regulated by traditional laws and expressed through a range of secular and ritual customary practices’. There are uniformly consistent statements of belief on the part of the claimants themselves in respect of territorial possession. He gave examples of supernaturally-authored territorial demarcation expressed in two Bardi myths related by Elizabeth Puertollano. One was the myth of two birds fighting for land. The other was the tale of fighting Bluebones. Contemporary Bardi and Jawi people view the claim area as territory which by virtue of mythological inscription and kin-based inheritance, has been exclusively owned, occupied and exploited by them since ancient times. I agree with that view which is supported by the overall impression created by the evidence of Aboriginal witnesses albeit it is subject to my conclusions about the posited existence of one combined Bardi/Jawi society.

881 There are protocols and sanctions which to some extent continue to characterise and inform, relations among and between Bardi and Jawi peoples. Distant or classificatory kin and expatriates are required to notify estate-affiliates of their intentions to visit and/or exploit a buru. This was most evidently the case in respect of visits by distant or classificatory kin outside the area of their own regional grouping. Such permission is rarely, if ever, withheld from other Bardi and Jawi people. This is not inconsistent with the principle of exclusive territorial possession. It is indicative of the fact that Bardi and Jawi consider that the right to be asked about country is a fundamental attribute and expression of territorial ownership. This is borne out by the repeated oral evidence given by Aboriginal witnesses on this point.

882 Bardi and Jawi people held the belief that unauthorised entry and sometimes the mere presence of strangers unfamiliar with the country and unrecognised by the country may compromise its metaphysical integrity. The concept of country as an active and potentially hostile agent, capable of rejecting and harming those unknown to it was apparent in a narrative related by Elizabeth Puertollano about people who went fishing in her area around Chile Creek when a snake came and ‘gave them a nudge’. Bardi and Jawi people believe that persons unfamiliar with country may cause and experience jidar, a kind of bad luck manifested in an ability to catch game, fish and the like. I agree that the characterisation of country in Bardi and Jawi mythology as an active and potentially hostile agent is borne out by the evidence of the Aboriginal witnesses.

883 Mr Bagshaw provided a supplementary report described in its title as dealing with aspects of Bardi and Jawi marine tenure and resource uses. This report was co-authored with Ms Glaskin and dated October 2000. It detailed additional ethnographical evidence and supporting literature relating to the offshore area of the claim.

884 Bagshaw and Glaskin considered the horizons of Bardi territory in par 2.1 of the supplementary report. Traditionally the Bardi people occupied northern Dampierland while Jawi people occupied the main islands of the Buccaneer Archipelago in King Sound namely Iwanyi (Sunday Island), Jalan (Tallon Island), Bulngin (Poolgnin Island), Ulala (High Island), Karrar (Mermaid Island) and Unggaliyan (Long Island). They referred to Robinson 1973 at 103. Bardi sea and island territory was generally considered to include all islands and passages up to and including Jayirri (Jackson Island). Jimmy Ejai contended that Bardi territory includes Jalan and Ralral. Khaki Stumpagee said that Jalan and Ralral lie within Jawi territory. The assertions of Bardi people that they have substantial rights by virtue of birth, kinship and/or residence in Jawi territory on and around Sunday Island were said to be directly linked to the historical development of the Sunday Island mission. I accept that the movement of the Bardi people to Sunday Island was closely related to the establishment of the mission.

885 Bagshaw and Glaskin found general agreement in the literature and among contemporary informants that Sunday Island and its immediate environs lie within traditional Jawi territory. They referred, inter alia, to the observations of Tindale in 1974 and Michael Robinson in his 1973 thesis. Tindale said that in the island-dotted northern half of King Sound, Buccaneer Archipelago and the Montgomery Group there were four peoples including the Jawi all of whom were dependent on rafts for gaining the great part of their substance. He described the Jawi of the Sunday Island group as completely island-based. Michael Robinson also referred to the Jawi as spread over the main islands of the Buccaneer Archipelago. He said that they shared links with the Yampi peninsula to the east of King Sound and stated that:

‘The people from this region have disappeared since European settlement, and information about them is meagre.’

Bagshaw and Glaskin disagreed with the proposition that people from the region had disappeared since European settlement. They accepted Robinson’s observation that Jawi had and continued to maintain territorial linkages with their traditional eastern neighbours. All of the groups mentioned traditionally inhabited and exploited various islands east of Sunday Strait and were collectively identified as ‘Mayalayun or Mayala’ people. Mayala refers to all of the islands on the eastern side of King Sound and so denotes a particular geographic district.

886 The report referred again to the term ‘jarrayn’ used primarily to refer to the ‘outside’ waters or the distant sea. The same term is also used to refer to deep inshore water were there is no reef. They relied upon Khaki Stumpagee’s observation that ‘jarrayn mean, like, water - deep side’. The compound term jarrayn-jarrayn connotes especially distant waters, that is the open ocean.

887 Bagshaw and Glaskin described the marine environment from the perspective of Bardi and Jawi peoples as ‘encultured space’. It was evidenced in the density of names accorded to islands, reefs, currents and other marine features within the claim area and its environs. They offered the opinion that such toponymic density is clearly indicative of long-term occupation. They quoted B Nietschmann:

‘Names acknowledge familiarity with places; names in high densities demonstrate long-term occupation of places ... History and tenure are confirmed by places named.’

B Neecham 1989 Traditional Sea Territories and Rights in Torres Strait in John Cordell (ed) A Sea of Small Boats, 1989: 60-93 Cultural Survival Inc: Cambridge, MA p 83

They set out in their report a list of island, reef, current and sand bank names as a clear indication of the degree of knowledge held by the Bardi and Jawi claimants about the claim area and its environs. I agree with their opinion that the density of indigenous names in the claim area is indicative of long occupation.

888 Bagshaw and Glaskin referred to Bardi and Jawi ‘emic’ interpretations of other marine features. Jindirrabalgun is the large tidal whirlpool located in the middle of the Sunday Strait. It is a feature ‘universally feared and respected’ because of its obvious physical hazards and mythological significance. That significance is known only to initiated men. Paul Seaman’s Aboriginal Land Inquiry reported that ‘the Dampierland women said that there were whirlpool sites in the sea and the women were concerned that people would become sick if they were not kept away’. They referred to the story concerning Paul Sampi’s late father, Patrick Jambi, who was travelling on a lugger pulled down by the force of the whirlpool. His father and a Jawi man, Gogoj, survived by taking hold of the mast and drifting with it. Paul’s father escaped because he was a ‘jarlgangurr’, a good doctor man’ - with magical abilities which enabled him to withstand the powers, physical and supernatural of the whirlpool.

889 The supplementary report referred to historical records which have already been canvassed in the historians’ reports. These included the observations of Dampier, King and Stokes. An additional reference was made to a visit by the explorer EJ Stuart and the photographer William J Jackson to King Sound with the Nor’West Scientific Expedition of Western Australia in 1917. At Sunday Island, with the permission of Mr Hadley, 4 Aborigines joined the expedition as sea navigators. Stuart recorded that the ‘natives’ on Sunday Island employed ‘catamarans’ to travel from Sunday Island to the mainland, such craft being constructed from ‘a number of white mangrove poles ... When these primitive boats are used in deep water the natives have to depend almost entirely upon the tides.’ Stuart EJ (1923) A Land of Opportunities: Being an Account of the Author’s Recent Expedition to Explore the Northern Territories of Australia, The Bodley Head Ltd, London at p 22.

890 Knowledge of ‘calendar’ plants involves awareness of ‘seasonal indicators and signals of the availability or optimal condition of other food resources’ and ‘reflect(s) extensive Bardi knowledge of the plants of the peninsula ...’. Smith M & A Kalotas (1985) Bardi Plants: An Annotated List of Plants and their use by the Bardi Aborigines of Dampierland, in North-Western Australia in Records Western Australian Museum 12 (3):317-359 at 322. The supplementary report set out a tabular comparison of information in relation to seasonal marine resource usage. It named the various seasons to which reference has been made earlier.

891 The pre and post-contact economies of the Bardi and Jawi peoples have consistently and primarily depended upon the exploitation of marine resources. This reliance was said to imply and be based on an extensive traditional knowledge of the marine environment and associated species. Much of what followed by reference to specific fish species was objected to and the objection conceded. However the authors observed, without any objection, that dugong and turtle constitute a vital component of Bardi and Jawi marine economy to the extent that there are numerous ritual songs associated with them and specific culturally prescribed ways in which they are butchered. Attachments to the report set out diagrams of traditional cuts of dugong meat. Reference was made to Jimmy Ejai who said that dugong used to be far more plentiful in the Bardi and Jawi region. Moonlight nights are the favourite time for hunting dugong. The moonlight is said to glint off their backs so rendering them visible. Traditional paperbark and Spinifex torches are used for all forms of night fishing including dugong fishing. These observations are all borne out by evidence of the Aboriginal witnesses.

892 Bardi and Jawi have long harvested trochus for its edible meat and from the early days of the Sunday Island mission harvested it commercially. The long term use of trochus is supported by the archaeological evidence to which reference was made earlier. As has already been recounted, the main financial support of the Sunday Island mission was derived from the collection and sale of trochus shell and other marine products. Until 1997 the One Arm Point community was the only Aboriginal community in Australia which held a licence to harvest trochus commercially. The licensing exemption was granted to Bardi Aboriginal Association Inc, also known as the One Arm Point Council. It was authorised by the Minister for Fisheries in 1983. The exemption specifically allowed for commercial exploitation of shell subject to its collector obtaining a commercial fishing licence to gather the trochus. The WA Fisheries Department in 1992 authorised the Lombadina community in a joint venture to sell trochus but on condition that some value was added to the shell before sale. A particular geographical zone was marked out for exclusive by the Bardi Corporation. The Lombadina community continues to harvest small amounts of trochus for local sale to tourists.

893 The mangrove log rafts known as galwa in the Bardi language and bielbiel in Jawi enabled Bardi and Jawi people to exploit the extraordinary tides of the King Sound region, to travel between the islands and to hunt dugong, fish and turtle. There was additional documentary material including a photograph taken by EJ Stuart and subsequently published by Tindale showing four Jawi women and two dogs on a double-ended raft riding the tide of Sunday Island. They also cited Akerman who distinguished the galwa from other double triangular rafts by the use of wooden pins to join its sections and who said that:

‘The Bardi and Jawi skillfully exploit the tides in many ways. The currents created by the ebb and flow are used as highways on the sea along which ... the Bardi used to float with the currents or they used a special raft for that kalwa which they would get from the Jawi.’

894 The mayurr (stone fish traps), the ayan-ayan (‘wind’ stone fish trap) and the jiwin (Bardi) or wirri (Jawi) (wooden pole fish trap) were again mentioned. Jimmy Ejai’s description of the winged ayan-ayan was cited along with Moya Smith’s identification of the five types of fish trap used by the Bardi and the locations of those fish traps. They also made reference to the fish poisons identified by Dr Smith and the range of methods used to catch fish and/or shellfish including lines, nets, spears, harpoons, digging sticks and fishing boomerangs.

895 Mr Bagshaw and Ms Glaskin then turned to Bardi mythology which commonly concerns features of the marine environment. Some of the myths are restricted to initiated men. Others are entirely public. The first to which they referred was the Brue Reef narrative: Juljinabur. This has already been referred to in the Aboriginal evidence. The second was the mythical shark narrative Lululu. Lululu is a giant shark locally regarded as the ‘boss of the sea’. It is benign. It is often identified with a gummy shark although some Bardi think it more likely to be a whale shark because of its huge size and behaviour – P Ruja (1988) Fishing for Culture: Toward an Aboriginal Theory of Marine Resources Used Among the Bardi Aborigines of One Arm Point, Western Australia, Unpublished PhD thesis, University of Durham. Myths associated with Lululu have been published in two books authored by Bardi people. One is David Wiggan’s Loolooloo and Margaliyn (1990) published by One Arm Point School. The other is S & E Paddy, Gadiman Jawal: the Gadiman Story, (1988) published by the Western Australian Museum. As Bagshaw and Glaskin wrote, both books are indicative of the public nature of the mythology associated with Lululu. The latter book concerns the activities of Lululu around Gadiman which is a site near Swan Point. It furnishes mythological accounts of the creation of many marine species.

896 The next mythical narrative referred to was that concerning the Red Emperor food taboo. The character Kalalong was described by Bagshaw and Glaskin as one of the principal Bardi and Jawi ‘culture heroes’ – see Worms EA, (1952) Djamar and his Relation to Other Culture Heroes; in Anthropos, Vol 47: 539-560. Bagshaw and Glaskin noted that the Red Emperor food taboo is still widely observed through the native title claim area. Another narrative to which they referred, which was objected to, was in fact covered in the indigenous evidence and that was the story of the Falcon and the two Red Bills. The next narrative referred to was a Bluebone story. It was told to Bagshaw and Glaskin by Jimmy Ejai.

897 According to the story some boys were sitting around near a cave. They collected some fish and left for their home. One of them however was asleep and was left behind. A bad spirit or evil being called ngaari came to the place to eat whatever might have been left over. He saw the sleeping boy and grabbed him pushing him on the cheek. He took him into the cave where his wife the imbargun was. He then said he was going to look for a rock knife to cut the boy. According to the story he then went to various places looking for rock for a knife. One place was Ngarringarra located between Swan Point and One Arm Point, another was Garramal, which is Cunningham Point and another was Maljini, on the other side of Pender Bay. There is a big cliff there with white stone. He was looking for the right knife. Every time he went out looking for stone he broke it, it was no good. Then he went to a big hill between Broome and Derby. While he was away the imbargun let the boy go but the boy still carried a mark on his cheek. The boy ran away until he got to Jalan. The people were there. They grabbed him and fixed up his cheek. Then they heard the ngaari coming for the boy, squealing aloud. They made a double ring around the boy.

898 All the men were outside with their spears and boomerangs and some had stone. They heard ngaari coming making his noise, ‘niaow, niaow’ from a long way away. He arrived and walked around. They dragged the boy from inside the ring and said this is your aarli, this is your meat, this is the one you looking for? The ngaari said karlbimba twice maybe more. This went on. They put the boy on one side. At one point the men said we are going to show him right now. They readied their spears and boomerangs and then killed him. Then they burned him and threw on firewood until only the bone was left. The remaining bones of ngaari were blue, like the bluebone fish.

899 Bagshaw and Glaskin discussed ritual ilma. The ilma as a genre of songs, dances and designs many of which pertain to the sea and associated features. Designs of ritual paraphernalia referred to as totems in Aboriginal English and used in marine ilma also relate to the sea. The ilma are believed to derive from ingarda who reveal the songs and accompanying dances and designs in dreams. They typically commemorate past events in people’s lives or describe aspects of the physical environment. The ilma referred to in this part of the report were widely known by Bardi and Jawi people and relate to features or events associated with the marine environment. In the opinion of Bagshaw and Glaskin they constitute an important expression of cultural attachment to the sea. I accept that opinion.

900 The first ilma referred to is the shark ilma, Nyilirrinianga. This concerns the late Jawi man, Left-Hand Stumpagee and his wife Liza who were travelling in a dinghy with Barry Stumpagee, Khaki’s son. When their vessel inadvertently drifted on to an offshore ngulungul site which is sacred and dangerous and accessible only to initiated men, Left-Hand told Liza and Barry to lie down and cover themselves so they would not see it. When they returned to shore they told people how they had drifted and where they had been. Subsequently Henry Wiggan (deceased) who was a jarlgangurr or doctor man with magical powers, had a dream in which the song came to him. He gave the song to his jawul the late Billy Ah Choo who later sang it at Henry’s funeral.

901 The jindirrabalgun ilma commemorates the seafaring adventures of the late Henry Wiggan. According to the narrative background to the song he set out from Belayn in his cutter, ‘Messenger’. The whirlpool snapped the mast of his vessel leaving him adrift but because he was a jarlgangurr he called on his own barnman, a giant turtle, to rescue him. The turtle came to his aid carrying the boat on his back to the shore.

902 The monkeyfish ilma is called gardaliny or jirrala. There are two kinds of monkey fish identified by Bardi and Jawi people. Gardaliny is the larger of the two. It yields a good quantity of meat. Jirrala is the smaller monkey fish which is not eaten. There is an ilma in which the smaller monkey fish is said to have been created for gardaliny. The ilma describes how jirrala was crying because gardaliny left him. It is a commentary about the observed behaviour of the species. The kingfish ilma, garril/nurdajun relates to the white and black kingfishers respectively. It concerns a light-hearted encounter between the two species far out to sea during a fog. The sea spout ilma, uluwa is about a sea spout or ‘a lady one with long hair’ according to Douglas Wiggan deceased.

903 The reef called Bibirurr had a song associated with it according to Khaki Stumpagee but the man holding this song, Peter Angus Janggalid, had died early in 1994.

904 Finally, on the subject of ritual, Bagshaw and Glaskin made reference to pearl shell items. The riji which are engraved pearl shells worn at bungarn, the penultimate stage of male initiation, is a notable example of such items. Riji and guwarn, which is unengraved pearl shell, are worn by bungarn initiates as waist-mounted front (riji) and rear (guwarn) pendants. Bardi and Jawi women may view riji designs but their specific meanings are restricted to the men. Bagshaw and Glaskin offered the view that the linkage between marine features and items such as the riji materially illustrate the metaphysical dimension of the cultural connection of Bardi and Jawi people with the sea.

905 The third document which was produced by Mr Bagshaw dated February 2001 was entitled ‘Distribution and Spatial Extent of Local Estates (Bur[u]) within the Bardi and Jawi Native Title Claim Area’ (X-AN). It began by repeating the observations in the report of February 1999 that the Bardi and Jawi system of land and sea tenure is primarily based upon discrete local estates known as bur or buru and that patrifiliation is the principal means by which individuals become identified with and responsible for a particular buru. Each buru has a proper name. Estates typically consist of a constellation of names sites mostly located on or near the coast together with surrounding tracts of land and sea.

906 Following further fieldwork in November 2000 Mr Bagshaw wished to add some further general observations to the remarks in his 1999 report. Many estates bear proper names derived from components, sites or areas but not all. In some cases the name refers only to the whole of the estate. Examples given were Gambarnanbur and Miligunbur. Many site names within the claim area in fact refer to localities rather than specific features, although the latter can also occur. The names of points, promontories, beaches, creeks and saline flats or marshes extend to include the proximate countryside. Reefs, sandbanks, exposed rocks and small islands bear highly specific names. Boundary markers for estates are environmental features such as tidal creeks, the outer margins of saline flats, rock outcrops, rock hills, dense scrub thickets, specific types of vegetation, especially the bloodwood tree, the outer margins of tidally exposed offshore reefs and marine passages. On the eastern mainland coast of the claim there is a discernable pattern of tidal creeks as estate demarcators.

907 Mainland estates generally don’t extend more than 4 to 5 kilometres inland. The basis of their patterning is primarily ecological. There are no permanent water sources in the hinterland of the northern Dampier peninsula save for a particular tree species, known as marralal and certain billabongs in the south-western part of the area. Water sources generally take the form of tidally-submerged catchments or coastal sand dune wells. Without the aid of introduced bore technology, year round survival in the arid Peninsula hinterland is said to be impossible.

908 As was abundantly clear from the testimony of the Aboriginal witnesses the central peninsula hinterland is a significant communally resource zone. As Mr Bagshaw points out it is important for hardwoods for ritual items, wild honey, wallabies and fish poison. The hinterland is also regularly crossed on established paths for ceremonial and social purposes. He said that the deep sea and the central hinterland are regarded as integral dimensions of the Bardi territorial domain. I accept that as to the central hinterland. It is not, in my opinion, made out in respect of the deep sea.

909 In the course of his fieldwork Mr Bagshaw said he was able to determine the onshore extent and principal boundary features of several local estates on the Peninsula with the assistance of senior Bardi men and women. He described the spatial extent of one such estate – Gambarnanbur. This buru falls within the regional aggregate known as Ardiolon. The buru is located on the north-east coast of the Dampier Peninsula. Mr Bagshaw said he visited and mapped its onshore component with Frank Davey. According to information supplied by Mr Davey the estate’s recognised onshore boundaries include the tidal Juwan Creek, a dense rough bush thicket known as Injinyngur to the south and some unnamed foreshore rocks to the east. The total onshore area of Gambarnanbur is about 6.5 square kilometres. Mr Bagshaw had recorded eight named sites within it.

910 In addition to the 24 burus which he listed in his February 1999 report, he said there was a further Bardi estate owning group in the extreme south-west of the claim area. This group is known as Imbalgunbur and is locally identified as Bardi. The question whether Imbalgunbur represents Bardi country was controversial. It went to the question whether the south-western boundary of Bardi country extended to the south side of Pender Bay. There was evidence that this was in fact Nyulnyul country into which Bardi had expanded. I do not rely upon Mr Bagshaw’s conclusions as evidence of the fact in this respect. For reasons which are set out later, I do not accept that the south-west boundary of Bardi country extends that far.

911 In addition to the four deceased estates which he had named in his earlier report, namely Jalanbur, Guljamanbur, Balangarnanbur, and Lumardbur, Mr Bagshaw now added Bilbarrgunbur and Jambanynginybur. All such territories are cared for by members of neighbouring estates and/or matrifilial descendants of the original landowners. A map was attached to Mr Bagshaw’s report showing the general locations of all recorded deceased estates.

912 Mr Bagshaw also prepared another supplementary report dated 4 September 2001 (X-AL). The report was divided into three parts. The first part set out his responses to criticisms of his earlier reports raised by Professor Basil Sanson in expert reports which were not put in evidence. Part 2 sought to elucidate certain matters of fact and interpretation arising from on country evidence given by the applicants in May and June of 2001. The third and final part of the report set out revisions to some of his earlier ‘submissions’ in the light of that evidence.

913 There is little to be gained by reviewing Mr Bagshaw’s responses to Professor Sanson’s criticisms. They are for the most part matters of argument and characterisation and responses to criticisms of methodology. Part 2 involves comment upon evidence which was given by the applicants in the course of the first trial. I do not propose to refer to that comment.

914 In s 2.6 of the supplementary report of September 2001, Mr Bagshaw referred to the southern extent of Bardi territory. He noted that the use of the term ‘boundary’ with its connotation of a precisely defined area could be misleading as the Bardi acknowledge no specific territorial or linguistic handover sites serving to delimit the traditional horizons of their territory on the Dampier Peninsula. He contended that the Bluebone rocks near the northern shore of Pender Bay did not constitute a formal hand over site per se. Rather they indicted the furthest extent to which the Nyul-Nyul fishtrespassed upon and within the territory of its Bardi counterpart. He also observed that far from constituting a permanent natural barrier, the waters of Pender Bay in the general vicinity of the Kelk Creek Inlet regularly dry to levels sufficient to allow people to walk across the Bay. As such the putative Imalgunbur at the southern extremity of Pender Bay is not a geographically isolated sliver of Bardi territory.

915 In relation to the south-east area he referred to Garramalburu located at Cunningham Point. He contended that his ‘field data’ suggested that the Garramalburu estate extended south at least as far as the Goodenough Bay area. In this respect he referred to the evidence of Rosie bin Sali about Garramalburu. He noted that the term Nimanbur, meaning flying fox, was interchangeably used with banioland bard and at times defined as a direct equivalent of those terms by some of his informants when describing people associated with the Cunningham Point-southern Goodenough Bay district. He argued that this suggested that the designation Nimanbur may, at least in certain circumstances, be employed as a sub-regional appellation for certain Bardi people, rather than denoting a socially and culturally distinct group in this immediate area.

916 In Part 3 of his report of September 2001, Mr Bagshaw amended his earlier view that Judurdburu was an extant estate. He accepted that it was clear from on-country evidence that the estate had no surviving patrifiliates and was principally cared for by first-descending generation matrifiliates. Also in the light of evidence given by Messrs. D Davey and Frank Davey, he accepted that Ardiolonburu had no surviving patrifiliates. In his opinion it was the subject of a process of traditional succession on the part of the Davey family.

917 Mr Bagshaw underwent prolonged cross-examination, indeed the most prolonged cross-examination of any of the witnesses in the case. He was cross-examined on his role as an advisor to the applicants’ legal representatives. It was put to him that Aboriginal people whose information he relied upon in preparing his report had a vested interest and might tend to ‘gild the lily’. It was also put to him that because of the need to maintain a good working relationship with his informants he would not have tested, by any form of cross-examination or ‘hard questioning’ what he was being told. He agreed that as a general proposition he would try to avoid hard questioning of his informants. This perhaps highlights the importance of testing anthropological opinions, to the extent they are based on information from Aboriginal people, against the evidence given by those people and/or others from the same group in Court.

918 Mr Bagshaw produced his 1999 report in successive drafts. The first was prepared after five weeks of fieldwork in 1995 and tested by reading it out to various of the applicants whom he had interviewed. He undertook more fieldwork and prepared a second draft which he also read to some of his informants. It was put to him by counsel for the Commonwealth that, by reading out his draft, he would inform the people listening to him of their traditional culture. By way of example it was put to him that a number of witnesses had said that they knew nothing about the story of Jul on Brue Reef. However his reading of the report to them would have informed them about that story. He agreed partly that there was a danger that people could become informed through the process of reading. He said that the final draft read to informants was read in November 1998. He had not been consistently going back and informing people of the stories he had been told.

919 Mr Bagshaw was cross-examined about the field books which he had produced and the fact that he was reluctant to see them produced to the respondents prior to the trial. He said that one of the reasons for his reluctance was that they contained gender specific information. The other reason was that much of the information was imparted to him in private. He thought of the field notes as akin to medical notes. In so saying he accepted that it was not a particularly good analogy. The relevant difference is that the field notes might implicate other members of the wider community.

920 He was asked about the video recording that he undertook with Khaki Stumpagee in July 1997. He had not questioned Mr Stumpagee from a set of notes. It was put to him that he did not ask Mr Stumpagee anything about boundaries. When Mr Stumpagee appeared to indicate that the galwu or raft were Jawi and not Bardi he had moved on to another topic.

921 He was referred to notes taken by Ms Glaskin in which Mr Stumpagee said of Juljinabur (Brue Reef) ‘that’s for anybody ... anybody belong there. It doesn’t matter. Gardiyas’. The latter is a reference to white people. It was put to him that in the context of a claim extending to Brue Reef it was a fairly important articulation of Jawi law by a senior law man. He responded that the context of the discussion was on who had rights to turtle. They were talking specifically about rights in hunting turtle. He said it was apparent from the surrounding notes that the context of his discussion with Mr Stumpagee at that time was concerned particularly with resource usage. It was put to him that he had invented the idea of resources in water. He denied that emphatically. I do not accept the hypothesis that Mr Stumpagee was concerned only with the question of turtles. The evidence as to Bardi and/or Jawi ownership of Brue Reef is not convincing.

922 The point of the interview being recorded was that it was intended to become evidence. It was not however evidence of everything that Mr Stumpagee might have to say which was of significance to the case. Its purpose was to provide evidence of things which Mr Bagshaw thought might be useful to the claim and as a record of his connection to that country for future generations of Jawi people. He had not included in the interview any discussion of the proposition that the resources of Brue Reef were ‘for the entire world’. The issue had been ownership of land and water not turtles. That’s why he did not include it.

923 He rejected the proposition that in the preparation of his interview with Mr Stumpagee he asked only those questions the answers to which he knew would be helpful to the case. Mr Bagshaw was cross-examined about the approach to the development of the claim exposed in discussions between himself and the applicants’ counsel. It was put to him, in effect, that he had set out a plan to make out the main arguments of the claim, to place an emphasis on the sea and to emphasise the interconnectedness of the Bardi and the Jawi people.

924 Mr Bagshaw was cross-examined about the southern boundary of the Bardi Jawi territory. On the basis of his research he believed that it is in the vicinity of Pender Bay. He believed that Imbalgunbur, as explained at length in his final report, is Bardi. He had visited that site with Bardi informants and noted that it had the same name, Bujun, as a now deceased male who was consistently acknowledged as a patrifiliate known to people from that country. Bunjun was universally identified as Bardi. Bardi estates are focussed on the coast. The waters in the general vicinity of Imbalgunbur would also recede at low tide and people can walk across the exposed seabed there. The transitional zone to Nyulnyul away from the coast in his opinion is in the vicinity of Widung Lake. He made that statement on the basis of what he had been told by living informants. He also had a mind to previous ethnographic descriptions. He reiterated that in his opinion the southern boundary of Bardi speaking country was south of the point at which Kelk Creek becomes Pender Bay. He was referred to a number of previous ethnographies. Tindale’s mapping showed the Bardi/Nyulnyul boundary at around Cape Borda north of Pender Bay. He said that Tindale had never visited Bardi country. Mr Bagshaw was then referred to a map from Michael Robinson’s master’s thesis of 1973 which was not clear about the precise point of the boundary. He accepted that another of Robinson’s maps supported the inference that Pender Bay was the boundary but that there was no actual line drawn.

925 Robinson’s report, which was eventually tendered, stated, inter alia:

‘Bardi traditionally occupied the northern tip of Dampierland, the crescent shaped area extending from the base drawn between Pender Bay and Goodenough Bay.’

The Robinson report referred to stories of a mythical creature which travelled north from Nyulnyul country till he reached Pender Bay. He rejected the inference that this mythology marked the start of the Bardi at Pender Bay.

926 He was then referred to an article published by Ernest Worms in 1944, Aboriginal Place Names in Kimberly Western Australia: An ethnological and mythological study. A passage was cited from the article in which the author wrote of Pender Bay:

‘It is the most northern bay of the four deep indentations of the Indian Ocean into the western coast of Dampierland, Pender Bay, Beagle Bay, Carnot Bay and Roebuck. It forms the boundary between the Bard in the north and the Nyulnyul in the south. Pender Bay may be crossed during low tide under the guidance of the natives.’

Mr Bagshaw was familiar with that work. He pointed out that Point Emeriau was shown as a Bardi location on the following page of the same article. It was put to him that this simply indicated the author was giving a Bardi word for a Nyulnyul location. Mr Bagshaw’s response was that the Nyulnyul would have had a name if it were Nyulnyul territory and particularly a prominent location. Point Emeriau is a significant cliff formation at the mouth of Pender Bay. A number of the ethnographers cited to him, none of whom had visited the specific area, drew the line in exactly the same place which would indicate that they were reproducing material from the literature. Although Mr Robinson had visited Lombadina, Lombadina was nowhere near Kelk Creek. In any event he had visited Lombadina specifically to obtain genealogies from Sunday Islanders as he stated in his thesis.

927 A submission to the Seaman Commission by Green and Turner in 1984, said to have been on behalf of the Bardi people, placed the boundary to the north of Pender Bay. However Mr Bagshaw noted that the map in question bore the legend ‘After Tindale 1974’ and should be regarded as essentially a reproduction of Tindale’s map.

928 Subsequently, Mr Bagshaw conceded that his earlier statement that what Worms had drawn in respect of a boundary starting at the mouth of Kelk Creek was inconsistent with Elkin’s drawing. He acknowledged, when being shown an Elkin map from a paper on totemism published in 1933, that Elkin’s depiction was consistent with Worms boundary.

929 It was then put to Mr Bagshaw that the overwhelming weight of previous ethnographic literature on the point of the south-western boundary of the Bardi was precisely at Pender Bay. He accepted that that was the weight of the previous literature. In his 1999 report he had said that ethnographic maps of the region compiled by previous researchers broadly supported the description of the general location and demarcation of Bardi and Jawi territory within the claim area. He pointed out in cross-examination that the distance between the mouth of Kelk Creek or Borlk at the head of Kelk Creek and the boundary of the Beagle Bay reserve was a matter of 4 or 5 kilometres. He pointed out that he had reproduced several ethnographic maps to make the proposition as transparent as possible by allowing the reader to ‘as it were’ judge for themselves and note ethnographic inconsistencies in the record. He also pointed out that his report was not a comprehensive all embracing review of previous literature. But unlike any of the previous ethnographers he had been at considerable pains to visit all of the locations personally with Bardi people.

930 Mr Bagshaw also pointed out that P Sibosado had an outstation south of the Beagle Bay boundary. P Sibosado had insisted that his outstation Borlk was Bardi country. He had made the point in subsequent reports about the nature of boundaries and the coastal focus of estates and shared hinterland. It was pedantic to insist on a point of difference relating to a 2 or 3 kilometre area. There was not a lineal demarcation. He accepted that there were shared ranges between Bardi and Nyulnyul in the area they were discussing just as there were shared ranges between adjacent Bardi buru further north on the Peninsula. He said:

‘The focus of trespass is on the coast.’

Shared tenure applied to the pindan and the deep sea.

931 The Bluebone story told by Elizabeth Puertollano did not indicate that the Barrambarr rocks was a boundary as such. They were embodiments or transformations of beings who fought over the issue of trespass at that location. The Nyulnyul Bluebones were driven from Bard territory. In my opinion, having regard to the Aboriginal evidence to which Mr Bagshaw referred and to his own direct investigations in the area concerned, I accept that the traditional Bardi territory ran further south than the southern boundary of the present claim area.

932 Mr Bagshaw was cross-examined about his evidence concerning the south-eastern extent of the Bardi country.

933 It was put to him on the basis of Tindale’s writings that the Nimanbur and the Bardi in more traditional times were very distinct persons. He denied this asserting that they shared a former social organisation which was unique to Bardi, Jawi and Nimanbur. He contended that the heart of Nimanbur territory is Lajadarr Bay which is considerably south of the claim area. In the vicinity of Goodenough Bay he maintained that there was interchangeable identification and that Bardi people regarded those in and around the Goodenough Bay district as Bardi. He said that in the region of Lajadarr Bay and south to Warwa country at the head of King Sound it was clear that the Nimanbur were a group with a separate identity. In the area around Goodenough Bay the terms Bardi and Nimanbur could legitimately have been used interchangeably in precontact times.

934 He was referred to his field notes of an interview with a Mr J Rock who had said that Bardi country was north of the beach at Cunningham Beach whereas Nimanbur was to the east and south of Cunningham Point. He accepted that Mr Rock had been telling him the most southerly extent of Bardi country was Cunningham Point. He said, however, that this was inconsistent with what Mr Rock said elsewhere as recorded in his field notes.

935 His final opinion was that for Bardi people the south-east boundary was in and around Lajadarr Bay, that is Disaster Bay.

936 In cross-examination by counsel for WAFIC Mr Bagshaw referred to Mr Rock as ‘senile’.

937 He maintained in cross-examination that the Madarr area is principally Bardi and that the people from that area, including Mr Rock himself who identify as either Bardi or Nimanbur, do so in the same way that Jawi people or Ungarangu people collectively identify as Mayala. He did not see the reference to Nimanbur in the area as indicating a culturally distinct group.

Statutory framework- recognition of native title under the Act

938 The Act,which was extensively amended in 1998, retains the Preamble which accompanied its original enactment. In that Preamble are set out ‘considerations taken into account by the Parliament of Australia in enacting the law ...’. Those considerations are drawn upon a large ethical canvas. It is larger by far than is necessary to serve the pragmatic requirements of an orderly interaction between the recognition of native title and the myriad laws and interests that have settled upon the land and waters of Australia since their progressive annexation by the British Crown.

939 The considerations to which Parliament had regard in 1993 include the acknowledgement of Aboriginal and Torres Strait Islander peoples as the original inhabitants of Australia, their uncompensated and involuntary dispossession and their comprehensive social disadvantage in Australian society. Australian popular support for the 1967 amendment to the Constitution to empower the Commonwealth to make laws for people ‘of the Aboriginal race’ and the adherence of Australia to international standards for the protection of universal human rights and fundamental freedoms are invoked. The Preamble also recites the holding by the High Court in Mabo: ‘that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands’.

940 The intention of ‘the people of Australia’ in enacting the Act is declared thus:

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

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

941 The need to provide for compensated validation of past acts which may have been invalid because of their effect on native title is acknowledged. The provisions of the Act regulating the doing of ‘future acts’ which might affect native title is supported by the statement that:

‘It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented.’

942 Even allowing for the extinguishing incidents, permanent and temporary, of the validation of past acts and the processes for the authorisation of future acts affecting native title, the Preamble stands as a continuing declaration of the moral foundation of the Act and informs its construction. It evidences an intention to recognise support and protect native title, rather than to confine it within nicely parsed verbal bonds. This view of the Preamble is supported by the first of the ‘main objects’ of the Act set out in s 3(a):

‘To provide for the recognition and protection of native title.’

943 The overview of the Act (s 4) says in s 4(1) that:

‘This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to this Act.’

So the legislature announces the Act as providing its own mechanism for the recognition of native title. So too in s 10:

‘Native title is recognised and protected in accordance with this Act.’

944 The Act extends, inter alia, to ‘... the coastal seas of Australia ... and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973 (Cth)’ (s 10).

945 The principal process for determination of native title for which the Act provides is by way of application to the Federal Court for a determination of native title in relation to an area for which there is no existing approved native title determination. The Federal Court is given, by s 81 of the Act, ‘jurisdiction to hear and determine applications filed in the Federal Court that relate to native title’. In the exercise of its jurisdiction the Court is ‘bound by the rules of evidence except to the extent that the Court otherwise orders’ (s 82(1)). When the Court makes a determination of native title it is required by s 94A to ‘set out details of the matters mentioned in section 225 (which defines determination of native title).’

946 Two key definitions in the Act are set out in ss 223 and 225. Section 223 defines ‘native title’ and ‘native title rights and interests’ thus:

‘(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

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

Subsections (3), (3A) and (4) are not material for present purposes.

947 The content of the determination of native title is defined in s 225:

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

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

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

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

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

Other provisions of the Act relating to the effects of prior extinguishment on pastoral lands or reserves occupied by native title applicants will be considered separately.

The recognition of native title

948 Lying at the heart of the common law of native title and the Act is the idea of recognition. It is embedded in a matrix of rules defining the circumstances in which recognition will be accorded to native title rights and interests and those in which it will be withheld or withdrawn. The idea of recognition operates in a realm of legal discourse. It may be seen as a kind of translation of aspects of an indigenous society’s relationship to land and waters into a set of rights and interests which exist under non-indigenous laws – see eg Mantziaris C and Martin D, Native Title Corporations (2000) Chapters 1 and 2. It may also be thought of as the metaphorical result of applying rules whereby rights and interests are defined at common law as having vested, at the time of annexation, in the members of an Aboriginal society by reason of its traditional laws and customs and the way in which they define its relationship to land and waters. It is not a ‘mere’ metaphor. Its choice reflects a desire to give effect legally to the human reality involved in the ordinary meaning of ‘recognition’.

949 The grant or refusal of recognition at common law or under the Act is not something which affects or modifies traditional laws and customs or the rights and interests to which in their own terms they may give rise. The ‘extinguishment’ of native title rights and interests occurs when recognition is not accorded or is withdrawn because of the exercise of non-indigenous sovereignty reflected in legislative or executive acts inconsistent with such recognition. It has nothing to say about the rights and interests which arise under traditional law and custom or the relationship which they reflect between an indigenous society and its country. ‘Extinguishment’ is in some respects a potentially misleading metaphor.

950 The distinction between the existence of native title under traditional law and custom and its recognition by the common law was made in Fejo v Northern Territory (1998) 195 CLR 96 (at 128):

‘Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.’

As Toohey J said in Wik Peoples v Queensland (1996) 187 CLR 1 that native title rights affected by inconsistent grants are (at 126):

‘... unenforceable at law and, in that sense, extinguished.’

The continuance of rights and interests under traditional law and custom in spite of non-recognition at common law means that those rights and interests may be taken into account and have a part to play in the definition of the connection with land or waters which a group of indigenous people have by virtue of their laws and customs.

951 The historical reality of an indigenous society in occupation of land at the time of colonisation is the starting point for present day claims for recognition of native title rights and interests. The determination of its composition, the rules by which that composition is defined, the content of its traditional laws and customs in relation to rights and interest in land and waters, the continuity and existence of that society and those laws and customs since colonisation, are all matters which can be the subject of evidence in native title proceedings. Such evidence can be given, most importantly, by members of the society themselves and also by historians, archaeologists, linguists and anthropologists. The common law and the Act establish the rules for determining whether native title rights and interests exist under non-indigenous law. These are the rules of recognition.

952 The basis for, and the rules governing, the recognition of native title rights and interests at common law are found in the decision of Mabo (No 2). The essential propositions to be extracted from that case, in summary, are as follows:

1. The colonisation of Australia by England did not extinguish rights and interests in land held by Aboriginal and Torres Strait Islander people according to their own law and custom.

2. The native title of Aboriginal and Torres Strait Islander people under their law and custom will be recognised by the common law of Australia and can be protected under that law.

3. When the Crown acquired each of the Australian colonies it acquired sovereignty over the land within them. In the exercise of that sovereignty native title could be extinguished by laws or executive grants that indicated a plain and clear intention to do so – eg grants of freehold title.

4. To secure the recognition of native title it is necessary to show that the Aboriginal or Torres Strait Islander group said to hold the native title:

(a) has a continuing connection with the land in question and the rights and interests in the land under Aboriginal or Torres Strait Islander traditional law and custom, as the case may be;

(b) continues to observe laws and customs which define the ownership of rights and interests in the land.

5. Under common law, native title has the following characteristics:

(a) it is communal in character although it may give rise to individual rights;

(b) it cannot be bought or sold but can be surrendered to the Crown;

(d) the traditional law and custom under which native title arises can change over time and in response to historical circumstances;

(e) native title is subject to existing valid laws and rights created under such laws.

953 The global effect of those propositions was succinctly stated in the joint judgment of six justices of the High Court in Western Australia v Commonwealth (1995) 183 CLR 373 (at 452-3):

‘Under the common law, as stated in Mabo (No 2), Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown’s (or a statutory authority’s) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title.’

954 The relationship between indigenous societies and their land and waters is holistic in character. In Yanner v Eaton (1999) 201 CLR 351, in the joint judgment of Gleeson CJ, Gaudron, Kirby and Hayne JJ, there was discussion of the idea of native title rights and interests as ‘a perception of socially constituted fact’ as well as ‘comprising various assortments of artificially defined jural right’ (at 373, [38]). Their Honours observed that (at 373, [38]):

‘... an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land.’

And (at 372-373, [37]):

‘...native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land.’

Their Honours quoted and adopted observations of Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 (at 358, [37]):

‘Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights...’

And the further statement by Brennan J that (at 358, [37]):

‘... [t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.’

The latter observation is well demonstrated, albeit intramurally in the present case, by reference to rights in country which are not limited to those acquired through patrifiliation but extend to rights which can be acquired through matrifiliation and marriage. There are also the global responsibilities of the madjamadjin for all law grounds including those on vacant burus. The observation is consistent with an acknowledgement of the communal nature of native title which is not to be lost sight of by an undue concentration on the fractal detail of intra-societal allocations of rights and interests or the modes of their enjoyment. Brennan J said in Mabo (No 2) (at 62):

‘A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands.’

His Honour went on to observe that the recognition of the rights and interests of a subgroup or an individual which are dependent on a communal native title is not prevented by the absence of a communal law which would determine any point in contest between rival claimants. It may be as a matter of custom that such points are to be settled by community consensus or in some other manner prescribed by custom.

955 Those observations underpinned the global character of the declaration made in Mabo (No 2) that the Merriam people were entitled ‘... as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’. Sections 223 and 225 of the Act require a fairly specific focus on the ‘rights and interests ... possessed under the traditional laws acknowledged and the traditional customs observed ...’ by the relevant peoples. A determination of native title requires identification of the persons or ‘group of persons’ holding the common or group rights comprising that native title. Given that terminology of paras (a) and (b) of the definition of ‘native title rights and interests in s 223 is taken from Mabo (No 2) it could hardly have been intended to undercut the fundamental principle of their communal character.

956 The statutory definition of ‘native title’ and ‘native title rights and interests’ has been the subject of consideration in a number of decisions of the High Court. In the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward , their Honours observed (at 85):

‘In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But 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. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by “connection” by those laws and customs.’

Their Honours found no need to express any view in that case on the nature of the ‘connection that must be shown to exist. In particular they found no need to express any view on when ‘a spiritual connection’ with the land would suffice.

957 In Yarmirr, Gleeson CJ, Gaudron, Gummow and Hayne JJ, in their joint judgment, spoke of the ‘rights and interests with which the Act deals’ (at 37, [9]). Referring to s 223(1) their Honours identified three necessary characteristics of such rights and interests:

1. They are possessed under the traditional laws acknowledged and the traditional custom observed by the people concerned.

2. The people by those laws and customs must have a ‘connection’ with the land or waters.

3. The rights and interests must be recognised by the common law of Australia.

958 An important observation made in the joint judgment was that no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests supported by some communally organised and enforced system of sanctions. Their Honours said (at 39, [16]):

‘The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community.’ (emphasis in original)

959 In Yorta Yorta , the statutory definitions of ‘native title rights and interests’ and ‘determination of native title’ were at the centre of the Court’s reasoning. A determination sought under the Act was said, in the joint judgment of Gleeson CJ, Gummow and Hayne JJ to be ‘... a creature of that Act, not the common law’ (440, [32]). Three characteristics of the native title rights and interests which may be the subject of a determination under the Act were stated somewhat more elaborately than in Yarmirr (440 at [33]-[35]):

1. They must be possessed under the traditional laws acknowledged and the traditional customs observed by the people concerned. That is they must find their source in traditional law and custom, not in the common law.

2. The rights and interests must have the characteristic that by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have ‘a connection with’ the land or waters. The source of the connection is traditional law and custom not the common law.

3. The rights and interests in relation to land must be recognised by the common law of Australia.

960 The traditional laws or customs through which indigenous rights and interests in relation to land or waters originate must have a ‘normative content’. The rights and interests must derive ‘from a body of norms or normative system – the body of norms or normative system that existed before sovereignty’ (Yorta Yorta at 441, [38]). The reference to ‘traditional laws acknowledged and traditional custom observed’ avoids any need to distinguish between law and custom or to engage in nice analysis of the difference between legal rules and moral obligations. There must nevertheless be some sort of ‘rules having normative content’ without which there may merely be observable behaviour patterns but no rights or interests in relation to land.

961 The rights and interests must originate in a normative system of traditional law and custom which existed at the time of colonisation or the acquisition of sovereignty by the Crown. Post sovereignty that system could not validly create new rights, duties or interests in the land or waters which were cognisable by the common law (Yorta Yorta at 443, [43]). Rights and interests may nevertheless be transmitted according to rules of transmission which existed at sovereignty. Traditional law and custom may undergo significant adaptation but (at Yorta Yorta at 444, [44]):

‘... the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.’

962 The joint judgment turned then to the consequences of these considerations for the application of pars (a) and (b) of the definition of native title rights and interests in s 223. Here the word ‘societies’ was used (Yorta Yorta at 444, [46]):

‘... the origin of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown.’

The relevant normative system must have had ‘a continuous existence and vitality since sovereignty’ (444, [47]). If there were an interregnum in the existence of the normative system the rights and interests which owed their existence to it would have ceased to exist and could not be revived (445, [47]).

963 Professor Honore was cited for the proposition that ‘all laws are laws of a society or group’- (445, [49]-[50]):

‘To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs.’

If the society ceases to exist so do the laws and customs which it observes. Relevantly to the present case their Honours observed that (446, [52]):

‘Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult.’

When a society that existed at sovereignty ceases to exist and its laws and customs are adopted post-sovereignty by some new society the rights and interests to which they give rise will not be rooted in post-sovereignty laws and customs (447, [55]):

‘... laws and customs and the society which acknowledges and observes them are inextricably interlinked.’

What this means is that the relevant inquiry in relation to native title rights and interests under s 223 requires consideration of the relationship between traditional laws and customs now acknowledged and observed and those which were acknowledged and observed before sovereignty. It must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist from sovereignty to the present date ‘... as a body united by its acknowledgment and observance of the laws and customs’ (457, [89]).

964 It is important to note that the continuity required is not some simplistic absolute. Change to or adaptation of traditional laws and customs or some interruption of the enjoyment or exercise of native title rights is not necessarily fatal to a native title claim (455, [83]). The mode of proof of continuity in traditional laws and customs and the society to which they relate involves consideration of the historical, archaeological, linguistic and anthropological evidence in the light of the direct testimony of Aboriginal witnesses. Reference may be made to genealogies to support an inference of continuity with the society that existed at the time of colonisation.

Issues for determination

965 In light of the preceding discussion of principle and the way the case was presented in final submission, the following broad issues fall for decision:

1. Whether there is an Aboriginal society within the claim area that has existed since the time of annexation.

2. Whether all or some of the members of the native title claim group are members of that society today.

3. Whether there is a body of traditional laws acknowledged by the members of that society and traditional customs observed by its members which have existed substantially uninterrupted since the time of annexation.

4. Whether the members of that society possess rights or interests under their traditional laws and customs and, if so, what those rights and interests are.

5. Whether by their traditional laws and customs the members of that society have a connection with the land and waters of the claim area.

6. Whether the rights and interests are recognised by the common law of Australia.

7. What are the boundaries of the land and waters in respect of which a determination can be made.

8. To what extent has native title been extinguished.

966 If the resolution of the above issues leads to a determination that there are native title rights and interests held by members of an Aboriginal society within the claim area, then by s 225 a determination of native title will require identification of the native title rights and interests, the persons holding them, the nature and extent of any other interests in the determination area and the relationship between the native title rights and interests and other interests. It will also be necessary to determine whether if there are native title rights and interests they confer possession, occupation, use and enjoyment of the land or waters on native title holders to the exclusion of all others.

Issue 1 – Whether Bardi and Jawi were one Aboriginal society acknowledging one set of traditional laws and customs at annexation

967 The first issue of substance agitated in closing submissions, and perhaps the most important issue in the case, was whether the Bardi and Jawi people, said to constitute the native title claim group, comprise a group in whose favour a determination of native title can be made. To apply the criterion enunciated in the joint judgment in Yorta Yorta that requires consideration of whether the members of the group are the members of a society which has existed from sovereignty to the present time as a body united by its acknowledgment of the laws and customs under which native title rights and interests claimed are said to be possessed. This, it should be noted, is not a case of the kind that fell for consideration in De Rose v State of South Australia (No 2)[2005] FCAFC 110 in which individual or small group rights were claimed on the basis of the laws and customs of a larger traditional ‘bloc’ which comprised the relevant society. In this case the application is made on behalf of the group said to constitute the society whose traditional laws and customs give rise to native title rights and interests.

968 There are two enquiries required by the principal question. The first is whether there is a society of the requisite kind in existence today. The second is whether that society can be said to have existed since sovereignty. The competing contentions gave the impression that the parties saw the issue as one whose resolution was a matter of logically simple, even if factually complex, inference from the evidence.

969 The word ‘society’ does not appear in ss 223 and 225 of the NTA. Its ordinary meaning, according to the relevant definition in the Shorter Oxford English Dictionary (5^th ed, 2002) is ‘a body of people forming a community or living under the same government.’ As used in Yorta Yorta it provides a designation of the kind of group of ‘aboriginal peoples’, who observe a set of laws and customs under which members of the group can be the subject of a determination that they hold, individually or in conjunction with others, rights comprising native title. The use of taxonomies of ‘societies’ by reference to social, scientific or jurisprudential criteria other than those emerging from the terms of ss 223 and 225 as interpreted in Yorta Yorta may import elements into their application which are not required by the language or by the common law which they incorporate by reference. They may restrict the beneficial application of the Act to a field narrower than that defined by its words. Such an approach is antithetical to its purposes made evident in the Preamble and the ‘Objects’ clause in s 3(a). Care should therefore be taken in the identification of ‘tribes’ or ‘societies’ so that such limiting criteria are not imported sub silentio into this aspect of the fact finding process.

970 Any finding of fact as to whether there is a relevant ‘society’ of Aboriginal peoples today capable of being the subject of a determination of native title is evaluative in character. The question could conceivably have more than one correct answer, although s 225 does seem to require identification of ‘the person or each group of persons’ who hold the common or group rights comprising the native title.

971 Cases that predated Yorta Yorta and dealt with single claims brought by multiple groups acting under one umbrella are not of great assistance here. In Ward v State of Western Australia (1998) 159 ALR 483, Lee J at first instance was considering an application by Miriuwung and Gajerrong groups which were adjacent territorially and shared economic and ceremonial links. These links had been reinforced as a result of the depletion of Gajerrong people post-colonisation. His Honour found that the Miriuwung and Gajerrong could be regarded as a composite community with shared interests. He said (at 542):

‘Being satisfied that there is a Miriuwung and Gajerrong community that has an ancestral connection with the Aboriginal community, or communities, which occupied the claim area at the time of the assertion of sovereignty in the State or the Territory, it follows that the communal title in respect of the claim area is the title of the Miriuwung and Gajerrong people.’

This finding did not address the question which Yorta Yorta now requires to be addressed, namely whether the Aboriginal society under whose laws and customs the native title determination is sought is a society which existed at the time of colonisation. Such an inquiry allows for the evolutionary development of traditional law and custom of the society and, no doubt, of its composition provided that it is able to be regarded as the same ‘community’ of people moving through history and governed by the same traditional laws and customs. This inquiry was not mandated by authority at the time of the first instance judgment in Ward. It was not affected by the appellate decisions in that case. I express no view whether the incorporation of Gajerrong into Miriuwung in that case would have constituted such a discontinuity in the nature of the Miriuwung community as to amount to the creation of a new society rather than the development of the old. Nor do I express any opinion whether in that case the territory occupied by the Gajerrong would properly have been regarded as land and waters incorporated into the country of the evolved Miriuwung society.

972 It was sufficient support for his Honour’s finding in Ward that there was an ancestral connection between the Miriuwung and Gajerrong community which existed at the time and the community or communities which existed at colonisation. In the light of Yorta Yorta it may be that ‘ancestral connection’ between a contemporary Aboriginal community and the relevant Aboriginal community at sovereignty would not be enough to establish the necessary societal continuity.

973 In Wandarang People v Northern Territory (2000) 104 FCR 380, which also predated Yorta Yorta, twelve groups of Aboriginal people made application in respect of land and waters associated with the Wandarang, Marra, Alawa and Ngalakan language groups on the basis that the claim area encompassed the whole or part of the traditional country of the several groups. There were no longer any individuals who spoke the Wandarang language and the rights and interests previously capable of identification as belonging to it had been absorbed by other neighbouring groups.

974 There were in that case identified traditional rules of succession between groups. Moreover the Northern Territory as first respondent accepted that the community of native title holders comprised the members of the twelve groups. The Northern Territory also accepted that the contemporary community of claimants was descended from the original inhabitants of the region in the sense that there was a ‘substantial degree of ancestral connection’ between them (410 at [65]). Again it may be noted that this is not a test which would seem to satisfy the requirement of societal continuity expounded in Yorta Yorta.

975 These cases are therefore of little assistance to the present application.

976 The applicants relied upon a number of matters as indicative of one Bardi and Jawi society in existence since sovereignty whose members today comprise the native title claim group:

1. the universally held belief, demonstrated by numerous Aboriginal witnesses, that the Bardi and Jawi people are one united by Law, intermarriage and culture;

2. the evidence of the traditional belief that the Bardi and Jawi have lived as one since creative beings first introduced their Law ceremonies;

3. the restricted evidence of Aboriginal witnesses about ceremonies conducted under Bardi and Jawi Law and the formal seating arrangements for these ceremonies demonstrating the perpetual unity of the Bardi and Jawi;

4. the description of the claim area by Aboriginal witnesses as ‘one country’;

5. the existence of shared land and sea country, notwithstanding internal holdings by buru and regional or clan-based aggregates;

6. the existence of a variety of constraints upon the right of a clan to exclude from a clan area people who are Bardi/Jawi but not of the clan.

The submissions then shifted ground into argument going to the proposition that the whole of Bardi/Jawi society holds the whole of the country in the claim area under a shared spiritual order despite the rights and responsibilities of particular families and clans for particular burus and regional aggregates.

977 Further submissions directly applicable to whether the Bardi and Jawi were relevantly one society invoked evidence of:

7. shared language;

8. shared culture – common customs as well as common traditional law. Examples of shared culture included the avoidance of the names of deceased persons, observance of avoidance relationships with in-laws, restrictions on the acquisition of knowledge by boys and women and on access to law grounds. The restriction of turtle and dugong hunting to men and special laws for cutting up and for the distribution of pieces of dugong and turtle were cited. Universal adherence to the authority of the madja-madjin and their modes of appointment were invoked. Reliance was also placed upon common beliefs in raya and in barnman.

Other aspects of the submissions related to the continuity and transmission of traditional law and custom and their contemporary vitality. These submissions however repeatedly used the term ‘Bardi Jawi people’ in a way which assumed the answer to the question whether there is and always was one such society.

978 The State’s submissions on this question began with the point that the applicants’ position had changed in the course of the extended trial process. At the first trial the opening address on behalf of the applicants had referred to ‘two distinct yet closely related Aboriginal groups who identify themselves by their traditional language names as the Bardi people and the Jawi people’. That address also identified the area of land and waters within the claim area traditionally occupied by Jawi people as ‘… the land, reefs, shoals and waters north-east of Hadley Passage through which the Gardinan tidal current flows and Juwarnan (north-west Twin islands) and Murrudulun (south-east Twin islands)’. The Bardi people were defined as connected through biological or imputed filiation ‘as having a connection with the land, reefs, shoals and waters within the claim area south-west of Hadley Passage through which the Gardinan tidal current flows’.

979 The State cited Mr Bagshaw’s 1999 report, map 2 of Appendix 1 to that report and his reference to the ‘traditional boundary between Bardi and Jawi territories’ and the self-perceptions of the applicants as having distinct identities as Bardi and Jawi people. He had cited in this connection Michael Robinson’s 1973 thesis reference to the occupation of well defined geographical territories by the two groups, the identification of each with a particular language and their use of the distinct group names Bardi and Jawi. The rationale for bringing a single regional claim rather than separate claims for the Bardi and Jawi was explained by Mr Bagshaw who referred to their close linkages through an extensive range of socio-cultural, economic and cultural factors, many of which are geographically specific. In a passage quoted by the State, he had said:

‘The nature, density and geographical specificity of these ties are in fact, such that many Bardi and Jawi believe that their respective territorial interests can and should be considered within the context of a single regional native title claim.’

The State submitted that the identification of a common body of normative laws and customs that the putative society traditionally observed cannot be an exhaustive test of what is the relevant society for the purpose of a native title determination. In some cases, groups who share the same laws and customs may disavow group identity. There will be different criteria to consider in different circumstances in establishing the identity of Aboriginal groupings. I accept that general approach, while not accepting that it authorises any restrictive taxonomy not imposed by the words of the Act itself. The relevant definition of society as already observed is a broad one. The judgment required of the Court invites consideration of a constellation of factors and the picture they yield of a group which can properly be recognised as the native title holders for the purposes of a determination under s 225. The observance of a common body of traditional laws and customs will be a powerful indicator of group identity by those who observe them. Parallelism associated with geographical proximity may not. The traditional assertion, internally and externally, of a group identity will be another indicator. But recognition of one group’s identity does not of itself deny the existence of a wider society of native title holders of which it is part. Family and clan identification are obvious examples. It may be that larger aggregations can also be regarded as societal subgroups despite identification based on dialect and territory provided that there are sufficient unifying factors to define a single wider society.

980 The State relied upon the following factors as denying the existence of one traditional Bardi/Jawi society. They were:

1. The existence of the names Bardi and Jawi as internal and external group referents.

2. The existence of distinct territories for Bardi and Jawi under a regional tenure recognising the division of each tribal territory of King Sound and the Dampier Peninsula into clan estates.

3. The existence of Bardi and Jawi people with distinct ecological zones, the Jawi being islanders and the Bardi mainlanders.

4. The distinctions between Bardi and Jawi languages.

The State also pointed out that while there are common elements defining a socio-cultural proximity between the two groups, the overall cosmology and links of ceremony also belong to neighbouring groups such as Nyulnyul and formerly Karrajarri.

981 The State discounted the Aboriginal testimony about societal unity at the second trial with the broad proposition that ‘ … in the absence of traditional methods of recording social history, Aboriginal historical memory is notoriously shallow infrequently extending beyond two generations’. The basis for this contention was not stated and I do not accept it as a global proposition which has any part to play in my decision. My assessment of the Aboriginal evidence is based upon ordinary processes of inference and assessment of probabilities and credibility that apply to the testimony of any witness.

982 The Commonwealth, like the State, contended that there were two societies at sovereignty, namely, the Bardi and Jawi. Within each society there were multiple groups which were clans, families and individuals such as spouses who held rights to particular country. All members of Bardi society held undifferentiated rights to the Pindan or Nimidiman country. The Commonwealth linked its submissions against the existence of a single Bardi/Jawi society to its submission that the clans and their burus defined the essential native title holding groups.

983 The Commonwealth argued against the applicants’ position that the Bardi and Jawi people comprise the proper native title holding group and that the rights of patriclans, lawmen and others are to be determined intramurally. This position, it was said, involved a ‘deliberate avoidance’ of the requirements of the Act. The Act, it was said, requires the Court to specify who has what rights under traditional law and custom and not to delegate that question to the applicants. The Commonwealth position so expressed risked conceptual confusion between native title rights and interests held in common by a particular society and their distribution and exercise according to elements of a unitary traditional law and/or custom which may be ambulatory and responsive to changing circumstances without affecting the integrity of its normative foundations.

984 The Commonwealth, like the State, referred to the way in which the applicants had initially presented their case speaking of Bardi and Jawi as ‘two distinct yet closely related groups’ who ‘maintain and acknowledge social, territorial and linguistic identities which are distinct from one another (although also linked in several ways)’. It cited anthropological evidence to like effect from Mr Bagshaw. It argued that references to community of kin by Aboriginal witnesses were acknowledged in cross-examination to be unrelated to land (ie title holding) groupings. Mr Khaki Stumpagee, it was said, had been insistent that Jawi and Bardi be separate in the claim. The native title holding was described by the anthropologists as primarily based on estates which were distinctly either Bardi or Jawi but never both. Ms Glaskin had doubted that a Bardi person who could become an estate holder in Jawi society.

985 The Commonwealth relied upon evidence by Aboriginal witnesses as indicative of distinctions between Bardi and Jawi in terms of the rights to go onto particular country. Rights and expectations flowing from matrifiliation, spousal connection or nimalj were not unique to Bardi and Jawi. They extended to the land of any tribe. Although there was evidence of intermarriage between Bardi and Jawi and co-residence in Sunday Island and later at Derby, this did not establish a single applicant group because similar links existed between Nimanbur and Baniol, Nyulnyul and Bardi and Jawi and Mayala. The only existence of sharing related to Sunday Island and Jackson Island. Elkin had observed sharing at Jackson Island which he regarded as a ‘stepping stone’ between two distinct groups. The Commonwealth also referred to anthropological observations of Bardi and Jawi as distinct tribes and cited Tindale, Elkin and Robinson. The linguist Capell had described Bardi and Jawi coalescence ‘as an accident of recent history’.

986 The Commonwealth then followed with submissions in answer to the applicants’ submissions insofar as they relied upon links between Bardi and Jawi, common law and custom, language, culture, marriage and the distribution of rights. It argued that present day attitudes of Bardi and Jawi support only a very weak inference that traditionally they were unified. The factors that unified Bardi and Jawi were the establishment of the Sunday Island venture of Sidney Hadley followed by his mission, the influx of Bardi and others to the traditional Jawi land, the subsequent decline in Jawi culture and language and Jawi numbers and the relocation of Bardi and Jawi first to Derby and then to One Arm Point in Bardi country. The asserted decline of the Jawi was also supported by reference to Elkin and Robinson and to Mr Bagshaw’s testimony as well as that of Aboriginal witnesses.

987 The intermarriage argument was met in part by a debating point that the term intermarriage assumes the existence of distinct groups. It was also met by the argument that the only inheritable rights were derived from the father under Bardi law. A similar system existed under Jawi law. These systems ensured the continuance of each group as a discrete tribe. Had the pre-colonisation intermarriage led to transmissible rights in the country of both parents then the coalescence of Bardi and Jawi would have occurred pre-contact which it did not.

988 WAFIC did not dispute the genuineness of the belief held by the Aboriginal witnesses that there is a composite Bardi/Jawi community nor the proposition that for certain contemporary purposes there may be such a community. This was not, however, sufficient to support a finding that the modern Bardi/Jawi community is a continuation of a society which existed at sovereignty. The question whether native title rights and interests are to be determined at a communal or an estate level was said to be a matter of fact according to facts which might differ from case to case.

989 WAFIC submitted that on all the evidence there were two separate but similar societies which have merged or are in the process of merging into one. Within each of these societies it argued, the primary landholding unit is the estate or buru. WAFIC’s submissions covered much the same ground as those of the State and the Commonwealth on the one society-two societies question beginning with reference to the opening address of the applicants.

990 WAFIC cited anthropological evidence from Mr Bagshaw and his identification of a boundary between Bardi and Jawi territory as well as the maps of early ethnographers to like effect. Each of the previous ethnographers, it was said, supported the general proposition that the Jawi occupied the Islands of King Sound with the possible exception of Jalan (Jackson Island) while the Bardi belonged to the mainland of the Dampier Peninsula. WAFIC also relied upon Mr Bagshaw’s evidence of distinct social and territorial identities emphasised and differentiated by the Bardi and Jawi. In his supplementary report (X-AL), Mr Bagshaw, responding to comments by Professor Basil Sansom, which were not themselves put in evidence, had set out how he dealt with the Jawi question in his previous reports. He had also identified different initial song cycle foci between Bardi and Jawi (X-A1, p 45, fn 14); identified Juljinabur or Brue Reef as a Jawi site (X-A1, p 50); described differences between Bardi and Jawi burial sites (X-A1, p 80); and territorial demarcation myths relating only to Bardi people (X-A1, p 10). There were also differently named pre-initiation rituals for Bardi and Jawi.

991 WAFIC relied upon evidence of Aubrey Tigan and Mr F Bin Sali to the effect that Jawi were different people with different ways in the old days. Khaki Stumpagee, Aubrey Tigan and H Angus gave evidence to the effect that Jawi people were still a separate and distinct people from Bardi people. In the first hearing a number of witnesses had identified themselves as one or the other. Even in the second trial, witnesses when pressed, identified themselves as Bardi or Jawi. And although they spoke of one country at the second trial the great majority referred to distinct Bardi and Jawi territories. Khaki Stumpagee was the most senior Jawi man. He identified boundaries between Bardi and Jawi country, linguistic differences and the previous existence of different Jawi songs. He was not called at the second trial.

992 WAFIC criticised the reliance placed, by the applicants, on evidence of shared law, intermarriage and similarities in language and customs. It identified like similarities and links with other groups such as existed between Jawi and Mayala, Bardi and Nyulnyul, Nyikina, Goolarabooloo and Uggarang. Jimmy Ejai’s evidence in cross-examination by the State was referred to at some length in this respect.

993 The fact that Bardi share their law with others cannot mean that they share their country with them. Intermarriage occurs across a number of filial groups. There was evidence of linguistic distinctions which meant the Bardi people could not understand Jawi although in this respect WAFIC cited only the evidence of M Coomerang. The avoidance rules relied upon and restrictions on knowledge are common to many Aboriginal groups in the region.

994 In the end it was WAFIC’s position that it was arguable, on the basis of the Yorta Yorta decision, that the claim made on behalf of the asserted Bardi and Jawi composite society should fail in its entirety because it is a ‘new society’ which has adopted laws and customs or country of the Jawi people. WAFIC accepted, however, that there was sufficient evidence to find that native title rights and interests exist in the claim area either as held by patrifiliation of burus and alternatively by two separate groups being the Bardi people and the Jawi people.

995 The applicants’ final submissions on this issue referred to evidence given at the second trial by Messrs. Sampi, Tigan, George, J and D Davey, Mr Ejai, Mr Angus and the witnesses Coomerang, R Tigan, I Davey and B Angus. It is however convenient to begin by reviewing evidence at the first trial which bears upon this question.

996 At the first trial Mr Frank Davey, when explaining the video of the initiation ceremony recorded at One Arm Point (X-C) was asked whether it was a Bardi or a Jawi ceremony. He said:

‘It’s a Bardi Jawi ceremony. Its belong to both.’ (sic)

And when he spoke of the triple-stripped boomerangs, he said:

‘That’s – that’s how the Bardi and Jawi always painted their boomerangs. It’s been handed down again.’

The participants in the ceremonies shown on the video included the Jawi elder, Khaki Stumpagee, and the Bardi man, F Bin Sali. The boss woman was Patsy Ah Choo, a Bardi woman born on the Jawi island known as Sunday Island.

997 When Aubrey Tigan was cross-examined by the Commonwealth at the first trial he was asked whether there was any difference between the Bardi rules or laws and Jawi laws. He said that they were all exactly the same. Significantly, he was also asked whether he had ever been told by ‘old people’ that Jawi law was a little different from Bardi law. He said that he had not. The law was mostly the same. And when he was asked, in respect of the initiation ceremony shown on the video, whether there were any separate Jawi songs he said there were not. They were all one with Bardi. Indeed he had learnt about the initiation ceremony on Sunday Island. He had been taught about it by his ‘old people’. It may be noted that he was born in 1945. ‘Old people’ for him might well have included people of his grandfather’s generation born at or before the turn of the century. It may have been the case that there were separate Jawi words. At the second trial he also placed emphasis on the jawul relationship as something which binds the Bardi and Jawi community together. He is a person who regards himself as Jawi.

998 When Mr Jimmy Ejai was speaking at the first trial about catching ‘married turtle’ in the deep water areas or jarrayn, he said:

‘We go out with the tide and come in with the tide. When we do that, we watching out for married turtle. That’s all.’

He was asked who the ‘we’ was meant to be and he said:

‘All the Bardi mob, Jawi mob.’

It was put to him that Twin Islands was Jawi country. He said:

‘No. But we together, Jawi and Bardi, and we go together in islands. We allow to go in each other’s island. And my mother is Jawi.’

Mr Ejai was born in 1932 on Sunday Island. He is Bardi on his father’s side and Jawi on his mother’s. He obviously kept close contact with the older people at One Arm Point. His view of the unity of Bardi and Jawi people under the law as emphasised at the second trial was not consistent with knowledge of a single society formed only within recent historical times by intermingling. I cannot however infer from his testimony that the position he described existed in 1829. There was moreover a tension between what he said in this respect and the evidence of Khaki Stumpagee, the oldest living Jawi witness.

999 Khaki Stumpagee spoke of the Jawi and Bardi people and their respective territories and of the similarities and differences in their languages. Some of his testimony about whether particular islands should be regarded as Jawi, did not suggest a clear-cut demarcation but rather a matter of judgment based on the language used in respect of those islands. This was particularly so in relation to Ulala or High Island. In discussing Sunday Island as a Jawi Island he observed that different people from all over the place came there because of the mission. And although he had been talking in the Jawi language, Mr Stumpagee said he ‘got Bardi language’. The process of intermingling to which he referred, evidenced on Sunday Island, in my opinion, could be regarded as a process of historical change leading to two distinct societies becoming one. It is also no doubt arguable that the so-called intermingling could be seen as indicative of the permeability of subgroup boundaries within what is and always was essentially one society. However the historical circumstances under which it occurred tend to make the first hypothesis more likely.

1000 Bernadette Angus who gave evidence at the first trial, is Jawi on her father and grandfather’s side and Bardi on her mother’s side. She said, at the first trial, that she classed herself as both Bardi and Jawi. Her father’s country was as important to her as her mother’s country. She identified the difference between Bardi country and Jawi country by reference to the mainland and the islands. Her daughters have both Jawi and Bardi bush names. They do not take either of those names from their father because he was Yawuru.

1001 It was put to Paul Sampi at the first trial that Sunday Island was Jawi country. He replied initially, ‘Yes. Bardi, Jawi, yes. Jawi, yes. My grandmother’s a Jawi.’ Asked again whether it was Bardi or Jawi, he said “Bardi and Jawi,” and that it had always been so, even before the white man came. It was always “mixed up”, that is there had been Jawi and Bardi people living there. The mainland was also mixed. He described Jayirri (Jackson Island) as Bardi, and expressed uncertainty about Jayalan. He distinguished between the Bardi and Jawi languages, saying that most of the Jawi language had gone. In referring to the distinction between Bardi and Nyulnyul country he spoke of Galaguneran and said ‘Oh well. I say its Bardi. Still Bardi’. This and the previous testimony referred to reflected a tendency to identify and distinguish between Bardi and Jawi country.

1002 Ms R Bin Sali was born on 25 April 1925. Her first husband was a Jawi man. Her second husband, F Bin Sali, was a Bardi man. Her country was Bilinybiliny on Sunday Island. She referred to that as Bardi and Jawi country. When she used the term ‘marryun amburiny’ she was referring to outsiders which she appeared to define as people who are not part of the Bardi and Jawi peoples. When F Bin Sali gave evidence, he was asked by counsel for the Commonwealth whether he saw a difference between Bardi country and Jawi country. He said they were mixed. His mother came from Ralral Island in Jawi country. Sunday Island was Jawi mixed with Bardi. Jayirri or Jackson Island was Bardi. He did not know whether it was mixed. He thought it should be. When he was asked why it should be he said that Bardi and Jawi ‘was altogether’. However when cross-examined by the Commonwealth he was asked whether as a young man old people had told him that Bardi and Jawi were two different people. He replied ‘yes, different ways, yes’. He was further cross-examined by the Commonwealth about this later during the first trial. He was asked whether Sunday Island had been Jawi or Bardi a long, long time ago. He said ‘yes’. However when it was put to him that it was not Bardi he said ‘no. Bardi was there and Jawi, mix you know after ...’. He was asked whether it was always mixed and he said ‘yes’.

1003 Khaki’s wife identified Sunday Island as Jawi even though, when the mission closed, there were Bardi and Jawi people there and also Mayala, Mowanjum, Umide and Worrorrapeople. She also identified certain other islands as Jawi, starting from Ralral, Bulginy, and all the islands right up to Iwanyi.

1004 D Davey Senior was a Bardi man who had nevertheless participated in an initiation ceremony at Sunday Island before he was married. He would not participate in ceremonies in Derby because the people there were of a different tribe. This statement implied a distinction between other tribes and his own, which distinction did not encompass and thereby exclude Jawi people. Mrs Irene Davey gave evidence at the first trial which distinguished between Goolarooboolooand Bardi or Jawi people participating in an initiation ceremony shown in a photograph to which she referred (X-E). The Goolarooboolooboys were dressed quite differently from the way in which the Bardi and Jawi boys were dressed.

1005 Mr H Angus at the first trial referred to Bulginy Island as within Bilinybiliny, which was all Jawi. Vincent Angus, born of a Bardi mother with a Jawi father described himself as both Bardi and Jawi and claimed connections to both his father’s and mother’s country.

1006 I have referred to aspects of the evidence given by Aboriginal witnesses at the first trial going to the connection between Bardi and Jawi people and the question whether they can be said to have comprised one society from the time of sovereignty. It is helpful to separate out the evidence at the first and second trials on the question because of the consciousness of the importance of the question apparent in the testimony of the Aboriginal witnesses at the second trial.

1007 At the second trial Aubrey Tigan spoke of the order of seating at the individual ceremonies by reference to the country of the jawul’s madja. The madja-jawul relationship binds the Bardi and Jawi community together – ‘that’s why we are one… because the law’. He denied, at one point, that there had been separate Jawi songs or separate Jawi words for the songs. He did however accept that there might have been Jawi songs which were lost since his father’s time:

‘I haven’t got them songs now, I’m sorry’.

He claimed an entitlement to speak for Bardi and Jawi, although on another occasion he said he could not speak for Jayirri because that was Bardi.

1008 Jimmy Ejai used the word Ululung to name the law for all Bardi and Jawi country. Bardi and Jawi could enter into Nimidiman without getting permission from anybody. He acknowledged the use of different words for the mangrove raft, ‘galwa’ the Bardi word and ‘bielbiel’ the Jawi word. Nevertheless he claimed Bardi and Jawi to be just one language, the difference being only in the pronunciation. In cross-examination Mr Ejai said that Bardi and Jawi people were mixed all the time from when he was a little boy. They married into each other all the time. His father was Bardi and his mother was Jawi.

1009 Bernadette Angus described the country shown in the map of the claim area as ‘one big country’, whose people are ‘one people’. She claimed rights in both Bardi and Jawi country. Her country was Jawi. Her father was a madja. He was a Bardi/Jawi madja. Her buru is Bilinybiliny and Bardi and Jawi people speak for it. The whole of Bardi Jawi is ‘one country because it is one law’.

1010 Coomerang, speaking of the differences between Bardi and Jawi, said that ‘They are the same, but the language is a little bit different’. While she could understand Bardi she did not know Jawi language. The Law and ceremonies were the same. The Bardi and Jawi bosses were the bosses of all the Law grounds in the Bardi and Jawi country.

1011 Paul Sampi rejected the proposition, put to him in cross-examination at the second trial, that in previous times there had been more differences between Bardi and Jawi people than there are today. The Law, he asserted, was the same from the very start and is still the same. The Law makes the people one. They sing the same songs, make the same dances, do the same hunting and practice the same Law. There were slight differences in language. In older times the Jawi did have different songs for the initiation ceremony. The Jawi name for the first ceremony is ‘mangali’. The Bardi word is ‘anggwuy’. The songs and dances of the Bardi and Jawi are done in the same language. They differ from those of the Nyulnyul and the Jabirr Jabirr. He accepted that there is a Bardi language and a Jawi language, and that not many speak Jawi any more. Those who used to have died. But the Law as practiced by Kevin George and Jimmy Ejai and another old man who had recently died was Bardi/Jawi law which was ‘inamunonjin’ or ‘from way back, a long time ago’.

1012 Mr D Davey Senior referred to the claim area as Bardi/Jawi country. The people were one because of their language, law, intermarriage and culture. There was much intermarriage and people understood each other. He did, however, refer to the Jawi as island people and the Bardi as mainland people. Irene Davey said that the claim area had been Bardi/Jawi country from as long as she could remember. The clan sequence in the placement of jawul at initiation ceremonies was described, ranging from Mayala Jawi to Baniol Bardi.

1013 Kevin George’s evidence at the second trial reiterated the proposition that because of the law, Bardi and Jawi people are one. Again he referred to the unity of culture – eating the same food, making the same materials, singing the same songs, dancing the same dances and speaking the same language. The language of the people however is ‘more Bardi today’. Jawi has slowly phased out. He did not know any Jawi words. He did not know if the word ‘bielbiel’ was the Jawi equivalent for ‘galwa’ or raft. He had no recollection of hearing Jawi spoken.

1014 Vincent Angus gave evidence at the second trial about the elders, the clans and their representation and seating arrangements at initiation ceremonies. He also characterised the claim area as Bardi and Jawi country. The people are one because of one law, one culture, and the way they look after the country and hunt. He said in cross-examination that there was only a slight difference between Bardi and Jawi languages and that it was still possible for Bardi to understand Jawi. The Jawi people he saw as belonging to Mermaid Island and Long Island. I take him not to have excluded Sunday Island by that testimony.

1015 Rosa Tigan repeated the claim of the unity of the Bardi and Jawi people. Both go to the ceremonies and this had happened through all her lifetime.

1016 Having read the testimony of the Aboriginal witnesses given at the first trial and having heard a number of witnesses at the second trial, I am satisfied that generally they gave evidence to the best of their ability setting out their understanding of the traditional laws, customs and beliefs of the Bardi and Jawi people. That there were differences in detail is hardly surprising. Within a single coherent system of traditional law and custom there may be differences of interpretation and different versions of particular stories told. An apposite analogy may be seen in the differences of view among those directly involved in the administration of the Australian legal system and commentary on it in connection with matters such as the interpretation of the common law and equity and even of the Constitution and statutes. There are sometimes debates about the origins and content of particular rules of judge-made law. And outside the very small population of persons involved in the administration of the law, there is, in the wider community, a range of awareness of the law from the well-informed to the profoundly ignorant. None of that detracts from the existence and validity of the legal rules by which our society is governed. In a system of law and custom transmitted by oral tradition these general propositions have even greater force.

1017 Having said that, it did seem to me at the hearing in June 2003 that the Aboriginal witnesses placed great emphasis upon the unity of the Bardi and Jawi people as one society and the one law. Some of their testimony seemed almost formulaic in that regard. By that time of course it was clear that the question whether there had been from the time of annexation, one society or two for the purpose of the recognition of native title rights and interests, was a matter of some importance. While the emphasis on that issue at the second trial might have responded to a perceived vulnerability in the applicants’ case, it does not mean that they are to be disbelieved in their statements about how they regard the current relationship between the two peoples albeit the one society proposition was put argumentatively on the basis of one law, one culture and one country. Their evidence, in my opinion, supports the view that the Bardi and Jawi people today see themselves essentially as one people united by common laws and customs. The contrary hypothesis would require treating the evidence of the Aboriginal witnesses as part of a wholesale co-ordinated fabrication about current beliefs which go to their cultural identity. Having read the evidence and heard their testimony I do not accept that that is a reasonable hypothesis. Nor is there any other basis upon which I could decline to accept their testimony in that regard. So, emphatic as it was, and to some degree formulaic and argumentative, I am satisfied that it represented the true state of mind of the witnesses who made those assertions and that generally the Bardi and Jawi people who have responsibility today for maintaining and communicating traditional laws and customs regard themselves as one people, united by one law. That of course leaves open the critical question whether the Court can conclude that there has been one such society which can be traced back to the time of colonisation. An alternative hypothesis is that there were two societies at annexation which have become one because of the absorption of the Jawi people into Bardi society. A third hypothesis is that there always were two societies one of which, the Jawi, has considerably diminished at least in the Sunday Island region and that of associated islands.

1018 The historical evidence supported continuity of Aboriginal occupation of the claim area from well before 1829. For the most part however, it did not assist in resolving the question of whether those who occupied the Dampier peninsula and those who occupied the islands to its north, including Sunday Island, could be regarded as one society. There were some tantalising references, such as Dr Green’s mention of a meeting of Sunday Island and Swan Point Aborigines in 1899, reported by PC Peny. Inspector Isdell reported in 1908 that there were really no Aborigines belonging to Sunday Island or the other islands. He said, ‘They all belong to the mainland and they use the islands for hunting and fishing.’ His concept of ‘belong’ is not further exposed by the evidence. Contrary to his impression is the report of the Derby Magistrate Wace, who in 1904 opposed plans to send a white married couple to Sunday Island because of the confronting aspects of traditional life there – ‘not uncommon to see a boy plastered with blood from head to heals (sic), the subject of tribal rites…’. Dr Wace also wrote to the Chief Protector, supporting Hadley’s request to have the native reserve of Sunday Island expanded to ‘the tribal boundary’. While this referred to Jawi territorial waters he also noted that the Bardi language area on the mainland adjacent to Sunday Island was much visited by the Sunday Island people.

1019 Preston Walker’s prayer letterof 1945 and Ruth Allen’s 1950 lament that the old men of the tribe still preferred ‘darkness rather than light’ are indicative of continuing associations with Sunday Island and the observance of traditional law and custom there. On the other hand, they are also consistent with EC Gibson’s 1950 thesis that Sunday Island was former Jawi country whose Jawi population was diminished because of punitive expeditions, the capture of Jawi women by pearling crews and the effects of introduced disease.

1020 The return of people from the mainland after the abandonment of Wotjulum Mission in 1938 is indicative of a continuing association with Sunday Island of Bardi and Jawi people. The notion of a ‘people’ of Sunday Island was reflected in Khaki Stumpagee’s 1968 letter to the Minister for Native Welfare.

1021 The historical evidence, in my opinion, supports an inference of continued observance of traditional laws and customs on Sunday Island, but leaves open the question of whether that observance was carried on by a Jawi society gradually overwhelmed by a distinct Bardi society which existed at the time of annexation.

1022 The archaeological evidence strongly supported continuous occupation of the claim area and the similar exploitation of marine resources throughout the area since well before annexation. There was a cultural continuity reflected in the continuing use and maintenance of fish traps, the informed use of marine resources and the use of seasonal campsites and the construction of shelters. It was also evidenced by the use of hunting and fishing artefacts and ceremonial boomerangs and shields. That evidence is consistent with the competing inferences of one society embracing Bardi and Jawi people, and two distinct but related societies one of which (the Jawi) was absorbed by the other (the Bardi) over a period of time.

1023 The linguistic evidence was of some importance to the question of one society or two. As the Applicants pointed out in their submissions, the State’s linguist, Dr Clendon concluded that the number of people speaking Jawi as a first language was always quite small, and far too small to support a separate semiotic code. He inferred that Jawi traditionally had dialect status with respect to Bardi. Differences in terminology such as ‘galwa’ and ‘bielbiel’ to describe traditional rafts could be explained ‘… by way of a dialectical-indexical function, that is as overt markers of distinctive group status’. Relevant analogies cited were the differences between Scottish English and Standard English, reflected in the Scottish use of ‘lad’, ‘lass’, and ‘bairn’, where the English would say ‘boy’, ‘girl’, and ‘baby’. These differences did not, as Dr Clendon observed, support the view that Scottish English is a distinct language. It will be apparent that the classification of a language as such is an exercise in taxonomy. While such classification may apply criteria agreed by linguists it is nevertheless a matter of classification. In my opinion, in light of the linguistic evidence and what the indigenous witnesses had to say on the matter, although there were differences between some of them, I can and do infer that the Bardi and Jawi peoples spoke closely related languages. The differences that existed may have been at the level of dialect variations for the purpose of linguistic classification.

1024 A number of previous ethnological studies were in evidence (X-AO and X-AP). It is helpful to refer to some aspects of those studies which might be thought to bear upon the first issue.

1025 WH Bird who had lived at Sunday Island for about four years, published an article in 1910 about the Jawi language as spoken by ‘... the natives of the Buccaneer Islands’– Some Remarks on the Grammatical Construction of the Chowie-Language as spoken by the Buccaneer Islanders, North-Western Australia (1910) 5 Anthropos 414. Of the Buccaneer Islanders he said:

‘The natives are Australian Aborigines and intermarry with the tribe on the mainland to the west.’

He then set out an explanation of the grammatical structure of the language although in doing so he made no comparison of it with the Bardi.

1026 In 1911, Mr Bird wrote another article entitled ‘Ethnographical Notes about the Buccaneer Islanders – North-Western Australia’ (1911) 6 Anthropos 174-178. He described the inhabitants of the Buccaneer Islands as ‘similar in type and language to those on the mainland to the westward’. He described initiation ceremonies marking the transition from boyhood to manhood. This description included elements which he had been told by the Island people should never be disclosed to an Aboriginal woman. It was only on this condition that he was allowed to see the ceremony. It is noted that the ceremony involved the boys being ‘... covered from head to foot in blood’, a description which reflects that set out in Dr Wace’s 1904 letter, referred to earlier.

1027 The Islanders creation story which Bird recounted involved a supreme spirit who lived among the people and taught them all their tribal laws. One of the stories involved the destruction of people by fire because, during a particular period of the initiation cycle, boys undergoing initiation contravened the prohibition on the consumption of fish. The similarities with the story of the Bardi people who ate Red Emperor and were killed by fire are immediately apparent.

1028 In another piece published in 1915, Bird set out a vocabulary of Jawi terms. He said that he had not much chance of studying the languages of the mainland tribes but found community links on the Fitzroy River and along the west coast as far as Broome and Port Hedland – A short vocabulary of the Chowie-Language of the Buccaneer Islanders (Sunday Islanders), North Western Australia (1915) 10 Anthropos 180-186.

1029 AP Elkin, writing in 1933 under the title ‘Totemism in North-Western Australia’ named ‘the tribe of Dampier Land’ as including ‘the Bardi in the northern corner of the peninsula above the Nyul-Nyul; and the Djaui on the inhabitable islands at the mouth of Kind Sound’. He added (at 437):

‘For all practicable purposes the Djaui seem, nowadays at least, to be identical with the Bardi. Many of the natives on Sunday Island, the only island now regularly inhabited, are Bardi from the mainland.’

Elkin referred to three months he spent in the countries of the Nyul-Nyul tribes in 1927-1928. He noted that the northern Bardi around Swan Point shared a turtle song with the Sunday Islanders calling on the turtle to come close so that it might be hit and turn over. There was no dugong song for the mainlanders although there was one for the Jawi (at 443):

‘... the people of the Buccaneer Islands who are more dependent on the sea for their livelihood than are the mainlanders, and who are more accustomed to the sea than the latter, have a dugong “song”. It belongs especially to the people of Sunday and Jackson Islands.’

1030 In another article published in 1935, Elkin described initiation in the Bardi tribe, north-west Australia. He began by observing that the Bardi tribe occupied ‘... the northern portion of Dampier Land Peninsula commencing from Pender Bay on the west and Cunningham Point on the King Sound side’. He referred to the presence of Bardi people on Sunday Island and said:

‘This island, one of the Buccaneer Archipelago, really belonged to the Irwundjun or Djaui-speaking tribe, but there were very few Djaui left and they mixed freely with the northern group of the Bardi; the members of the latter spent a lot of their time at the mission or working on their luggers.’

The Bardi, he observed, retained their kinship system and remained faithful to the dictates of ‘... the secret life with its rites, symbols and myths’.

1031 Ernest Worms writing on ‘Aboriginal Place Names in Kimberley, Western Australia’ (1934) spoke of ‘the most important and powerful supernatural being of the Nimanbor and Dyao’, the latter being a reference to the Jawi. He said that a Bardi man told him that Galalan came out of the ground and made the law. It came from Sunday Island, walked to the south and found a friend. Of Sunday Island, Worms said:

‘It is inhabited by Dyao, who are linguistically and anthropologically related to the Bad.’

1032 Michael Robinson wrote a Masters Thesis in 1973 entitled ‘Change and Adjustment Among the Bardi of Sunday Island, North-Western Australia’. It was frequently referred to in these proceedings. In his thesis Mr Robinson described the Kimberley region as a collection of ‘socio-cultural blocs’. He distinguished the suffixing language groups of the south from the prefixing groups of the north. Kinship organisation also delineated the region into areas using sections or sub-section systems, patrilineal moiety systems or systems of the Aluridja type employed by the Bardi and Jawi. He observed that in truth the boundaries between groups were not as rigid as such an outline might imply. There were differences in language but enough similarities to allow mutual intelligibility. In kinship there were similarities of terminology. Marriage regulations between neighbours were to some degree concordant so that inter-tribal marriages often occurred and adjustments could be made. Regionally there were a great many social and cultural features in common between the various tribal groups. The Bardi and Nyulnyul shared mythological associations with a common ‘culture hero’ said to have brought rituals concerned with circumcision and subincision to both the groups. The Bardi and the Jawi were linked through the myths of the law-giver Galalun.

1033 Robinson noted that although the boundaries of the Bardi and Jawi were reasonably distinct in terms of location of specific descent group sites, neither tribe formed an isolated or clearly defined social unit. Interaction was frequent with people from adjacent tribes.

1034 The Bardi and Jawi answered three of Elkin’s criteria for the definition of a tribe. They each occupied reasonably well-defined geographical regions, they each identified with a particular language and they each recognised a group name. In relation to the further criterion of distinct sets of customs, rites and beliefs there were enough similarities between the Bardi and Jawi to regard them as socially and culturally homogenous for most purposes.

1035 Genealogies showed a number of early Bardi/Jawi marriages dating at least to the very early years of European settlement. Robinson saw the similarity between Bardi and Jawi culture as a matter of major relevance. Both shared a similar cosmology and ritual and an identical kinship system apart from minor differences of terminology. They also had a like method of local organisation into named patrilineal descent groups and a common maritime economy. He observed that even in the matter of language there were many common features although these were not sufficient for mutual intelligibility.

1036 To speak of a tribal separation between Bardi and Jawi was to speak largely in a linguistic/territorial sense. He said that the term should be used as a conceptual aid rather than as an empirical descriptor. There was sufficient common ground between the groups to ensure reasonably harmonious adjustment when Bardi migrated to the mission at Sunday Island.

1037 In Aboriginal Tribes of Australia, UCLA Press (1974), Norman Tindale wrote (at 147):

‘In the island-dotted northern half of King Sound, the Buccaneer Archipelago, and the Montgomery group, there were four other peoples – the Jaudjibaia, Umede, Ongkarango, and Djaui – all of whom were dependent on rafts for gaining the greater part of their subsistence. Of these the Umede and Ongkarango were in part mainland based, and exploited some inland products; the Jaudjibaia and the Djaui of the Montgomery Islands and Sunday Island groups respectively were completely island based. While there was communication between adjoining seagoing tribespeople, there was little knowledge of or friendship between them and inlanders. Thus it was only in postcontact times, after dinghies were beginning to take the place of catamarans and travel to Derby became possible under white protection, that the Baada happened to discover that unused mandjilal poles were to be had in Goodenough Bay. They previously had not had sufficient common interest or contact with the Nimanburu to learn of this source of supply. This is perhaps an indication of the inviolate nature of tribal boundaries.’

Describing the Bardi under the designation ‘Baada’ he defined their location as ‘Cape Leveque Peninsula from Cape Borda in west to Cygnet Bay and Cunningham Point on east coast’. He identified five local groups who lived principally on sea products using sea-going rafts or light mangrove poles pegged together in visiting offshore reefs and mangrove-lined shores. The Jawi or Djaui he identified as being found on Sunday Island and the archipelago north to West Roe Island and west to Jackson Island. In modern times he said they claimed landing rights on the eastern coast of Dampier Peninsula between Cunningham Point and Swan Point. He called them ‘reef dwellers’ travelling from island to island on rafts of mangrove poles pegged together. The islands claimed and used ‘... are in part determined by the set of the profound tides upon which they depend for locomotion’.

1038 In 1979, Michael Robinson published a chapter entitled ‘Local Organisation and Kinship in Northern Dampierland’ in RM and CH Berndt (eds) Aborigines of the West: Their Past and Present, UWA Press (1979) at 186-196. He described his empirical focus as being on the Bardi of Northern Dampierland and to a lesser extent on the Jawi who had formerly occupied the islands of the Buccaneer Archipelago and King Sound. He observed that Bardi and Jawi social organisations seemed to have been identical. In that article he referred for convenience mainly to the Bardi although most empirical statements held equally true for the Jawi.

1039 In a submission in 1984 to the Seaman Aboriginal Land Rights Inquiry, N Green and S Turner on behalf of the Bardi Aborigines Association Inc and others, referred to the Nyulnyul, Juba-Juba, Nimanbur, Bardi and Jawi peoples. They incorporated in their submission the territorial boundaries shown on the Tindale maps which disclosed separate Bardi and Jawi tribal territories.

1040 Mr Bagshaw’s evidence, which has already been reviewed in some detail, stated that Bardi and Jawi regarded themselves as ‘peoples with distinct social, territorial and linguistic identities’ but that they also viewed themselves as ‘being closed linked by an extensive range of socio-cultural, economic and historical factors many of which are regionally specific’. He referred to the decline of Jawi as a spoken language primarily attributable to the overwhelming numerical and social dominance of Bardi people within Jawi territory during the Sunday Island mission period. There are, as he said, emic or internal cultural bases upon which Bardi and Jawi respectively identify themselves as such.

1041 The genealogical data, he suggested, and I accept, supported the conclusion that the Bardi and Jawi people constituted an often closely related community of kin. There is, and habitually there was, a high incidence of marriage between the two groups. He further contended that although there had been increased interaction between Bardi and Jawi post contact, the structural features of social organisation common to both were sufficiently fundamental that they might reasonably be assumed to have developed well before colonisation. The common features which he described in support of these contentions have been set out earlier in these reasons.

1042 The identification of an Aboriginal society which can be said to have existed at the time of colonisation and which continues to exist today, united by traditional laws and customs, under which it and/or its members can be said to hold native title rights and interests is no easy matter. So much was recognised in Yorta Yorta. The use of the term ‘society’ imports into the determination process a criterion of eligibility for the recognition of native title that is to be implied from the words of the Act and the common law in the way expounded in Yorta Yorta. It must not become a Trojan horse for the introduction of elements or criteria foreign to the requirements of the Act and the common law for the recognition of native title. The term should be applied in accordance with its ordinary meaning as ‘... body of people forming a community or living under the same government’. The relevant community must be a community which at the time of colonisation observed a body of laws and customs that continue in existence today. The continuity of the society and its laws and customs is subject to the qualification already observed allowing for the evolution of both providing that the essential continuity is maintained.

1043 In this case, in my opinion, the inferences that can be drawn about the characterisation of Bardi and Jawi communities at the time that the Crown acquired sovereignty are limited. They were, I think, at all material times, as Mr Bagshaw stated, distinct but closely related groups. Their members identified themselves as either Bardi or Jawi. I am prepared to infer that intermarriage between the groups was extensive and dated back to the time of sovereignty. The pattern of intermarriage indicated by the genealogies supports this inference. There were similar cosmologies and similar laws and customs defining the rights and responsibilities of clans and families with respect to particular burus. There were similar patterns of exploitation of marine resources although I consider that the Jawi relied to a much greater extent than Bardi on resources beyond the intertidal and reef zones and used rafts to a much greater extent for that purpose. There were common ceremonies in relation to initiations.

1044 I respect and accept the view of the Aboriginal witnesses who said that they are one people united by one law. I find that the contemporary practice of initiation ceremonies relies upon a common creation cosmology for both Bardi and Jawi which is reflected, inter alia, in the seating arrangements of those being initiated. But while I do not accept the State’s bald proposition of the ‘notoriously shallow’ memory associated with these oral traditions, I do not find that the oral evidence enables me to draw the inference which is sought on this issue. I am not persuaded that I can draw with confidence from the Aboriginal testimony the inference that there was one society of Bardi and Jawi at the time of colonisation. There is indeed sufficient in the evidence of some of the Aboriginal witnesses to which I have referred to indicate that the position of Jawi relative to Bardi has changed in living memory. There were differences and there was a distinct language even if for linguistic taxonomical purposes it could be called a dialect in recent times. The evidence of shared ceremonial is not, in my opinion, conclusive of the question. It is a consequence in part of geographical proximity and common mythologies which were not unusual in the region.

1045 The two groups occupied for the most part different territories, one mainland, the other archipelagic. They were recognised by early ethnographers as having distinct territories. Although the Bardi people went to Sunday Island in post sovereignty times there was no real indication, in my opinion, of any historical perception of Sunday Island as part of the country of a single society. It was historical circumstance and in particular the arrival of the mission that had an important part to play in those movements.

1046 The evidence does not allow me to infer that one society of Bardi and Jawi people occupied the claim area at sovereignty and were united by a single set of traditional laws and customs acknowledged and observed by that society today. Nor am I able to conclude that there was one such society which, in effect, communally held the land and waters of the claim area under such a body of law and custom, which was, in effect, the applicants’ case. In my opinion, however, the evidence does establish a society of Bardi people at the time of sovereignty which was able, under its traditional laws and customs, to receive into its membership at least, by a process of intermarriage, people from the Jawi community. The means by which those people and their children could acquire native title rights and interests as a consequence of such marriages have already been described in the evidence. They included primary interests acquired through patrifiliation and other interests acquired through marriage and matrifiliation. In that sense it may be said that the Bardi society contained rules of membership which allowed it to become and broadly be described today as a Bardi and Jawi society. So much being said, the land and waters which may be the subject of a native title determination in favour of the Bardi people could not extend beyond the land and waters which the Bardi society, as it existed at the time of sovereignty, held under the native title rights and interests conferred by its historical laws and customs. In so saying I note that there are no rules of succession identified which would allow consideration of the incorporation of Jawi traditional territories in the Bardi territory.

1047 The preceding conclusions do not involve a positive finding about the nature and membership of a distinct Jawi society at the time of sovereignty. In particular, I make no finding on whether Jawi society as at sovereignty would have been limited to the islands to the immediate north-west of Hadley Passage, including Sunday Island, or whether it extended into and incorporated the Mayala people who are also referred to in evidence as Jawi or Eastern Jawi. Having regard to the way in which the applicants’ case has been put and the evidence led in support of it, I do not consider that I can identify a distinct Jawi society, presently in existence, which acknowledges traditional laws and observes traditional customs under which native title rights and interests are possessed by its members. The necessary consequence of my findings would seem to be that such Jawi society as did exist in respect of the islands north-east of the Dampier Peninsula has been subsumed in Bardi society in the time that has elapsed since sovereignty. I accept that this may have been a process which was going to occur independently of the colonisation of Western Australia. Absent further argument or agreement, I am not prepared to make a separate determination in favour of surviving Jawi people in relation to Sunday Island or other islands within the claim area said to have comprised the traditional territory of the Jawi. As WAFIC pointed out in its closing submissions, the evidence indicates that a number of islands which were once part of Jawi territory no longer have any people with any traditional connection to them. These are the Twin Islands, Jalan, High Island, Allora and the Poolngin Islands. There was no evidence of any person having a traditional connection to the East or West Roe Islands. Jimmy Ejai’s evidence was to the effect that there used to be Jawi people for these islands who had died. It will be a matter for the parties to consider whether, in the light of my findings, it is open to me to make a separate determination in respect of surviving Jawi people.

1048 The determination I am prepared to make is a determination in favour of the native title claim group as defined in the amended application. This includes Jawi people who, in my opinion, form part of the contemporary Bardi society. Their inclusion in that society has not destroyed its continuity with the original Bardi society that existed at the time of colonisation of Western Australia. The process of inclusion by intermarriage was, in all probability, already in place at the time of sovereignty. It reflects, inter alia, that concordance of marriage regulation which is a feature of the region as Michael Robinson pointed out in his 1973 thesis. The Bardi society includes Jawi people who have intermarried with Bardi people and the descendants of people who are the products of Bardi and Jawi marriages. It will include people who are recognised as part of the Bardi community by adoption or otherwise in accordance with its traditional laws and customs.

Issue 2 – The identity of the native title holding group

1049 I am satisfied that the unity of the Bardi and Jawi people today represents an integration of Jawi people into Bardi society. The self-designation ‘Bardi/Jawi’ which was used by many of the witnesses is not inconsistent with that conclusion. That assimilation has not created a ‘composite society’. It is a process which had been going on through intermarriage and as a result of the numerical superiority of the Bardi for some considerable time. Indeed it was a process which was probably occurring, although perhaps to a lesser extent, at the time of sovereignty.

1050 It follows from the contemporary unity of Bardi and Jawi people, albeit as an expression of an evolving Bardi society, that all the members of the native title claim group are members of Bardi society for the purposes of a native title determination. The conclusions that I have reached adverse to the contention that there was a single Bardi and Jawi society at sovereignty affects only the area of land and waters that can be the subject of a determination. It does not affect the composition of the native title claim group which has the communal ownership of traditional Bardi territory. I accept that on this basis there may be Jawi people who are part of the Bardi community but hold no specific estate interests even though they share, as part of the whole community, in its native title rights and interests which it holds communally.

Issue 3 – Whether there is a body of traditional law and custom which has been in existence since sovereignty

1051 On the basis of the evidence already reviewed, I am satisfied that there is a body of traditional laws acknowledged by the members of Bardi society and traditional customs observed by its members which have existed, substantially uninterrupted, since the time of sovereignty.

1052 Bardi law and custom as described in the evidence and as summarised by Mr Bagshaw, relies upon the belief that Bardi lands and waters and the cultural forms and practices which make up the body of their customary law were created and bequeathed upon their ancestors by supernatural beings, the inamunonjin. These beings occupied and/or moved across the Dampier Peninsula region before direct human experience of the world. They shaped the physical environment and informed it with their spirits. They set the boundaries of traditional territories, named sites and introduced songs, dances, designs and objects together with myths and rituals. They set up the basic rules regulating the social order. The sum total of these rules, customs and resources is comprehended by the term ‘Law’. I accept that in this description Mr Bagshaw referred also to the Jawi people on the premise, which I do not accept, that they were one society from the time of sovereignty.

1053 The Law so understood, in my opinion, embodied the fundamental principle that the Bardi people as a community hold the traditional territory which is defined by the Law and is to be used and enjoyed in accordance with its rules.

1054 The Law, as explained in the evidence, supports a principle of communal ownership of the relevant land and waters. This is reinforced by the unifying role of the madjamadjin in relation to law grounds throughout the area. It is also reinforced by the common use of the Nimidiman or Pindan region, the conventions allowing access, subject to permission or invitation to particular estate areas and the rights and interests which could be acquired in respect of any estate or buru not only by the primary rule of patrifiliation but also through marriage and matrifiliation.

1055 The longevity of the traditional laws and customs and the inference of their continuity since the time of sovereignty is supported by their content together with the continuity of Aboriginal occupation of the area and the evidence of long term consistent forms of land use emerging from the archaeological evidence. I accept Mr Bagshaw’s observation that there is a ‘large and extremely rich corpus of site-specific and environment-focussed mythology’ embodied in the traditional law and custom. The density of named sites and natural features combined with the physical evidence of substantially consistent usage of marine resources going back to sovereignty in my opinion supports the inference that the laws and customs explained today by the Aboriginal witnesses whose evidence in this respect I have accepted, represents a body of law and custom which has continued substantially uninterrupted since that time.

Issue 4 – What native title rights and interests are possessed under traditional law and custom

1056 The first question arising out of the content of the native title rights and interests asserted in the amended application is whether or not there is a native title right of a communal character devolving upon the whole Bardi community to the occupation of the land and waters in the claim area. This is not a question of the precise boundaries of the area in which native title may subsist. It is rather whether native title subsists in the Bardi people in respect of the whole of their country or is limited to the families associated with particular estates.

1057 The applicants contended for a ‘one country’ native title. The area of the claim was described repeatedly by Aboriginal witnesses as ‘one country’. This was a reference not simply to the ‘one society’ question but also to the way in which the Law generated a unitary relationship between the people and their territory.

1058 As the applicants acknowledged, under traditional law and custom, the country is internally arranged into coastal estates or burus, clan areas or regional aggregates and the Nimidiman or Pindan which is shared middle country. Various of the witnesses referred to the burus as part of the country for which they could speak. Their rights and associated obligations evolved upon them under the Law. Different numbers of estates or burus have been variously identified by different observers over time. There are some burus identified by Mr Bagshaw, for which there are no living patrifiliates. There are some seven clan areas which are regional groupings or aggregates. These are reflected in the seating arrangements at initiation ceremonies which are required by the Law. The Nimidiman area makes up about 50% of the Peninsula country in the claim area. It is open to all Bardi people and available for the collection of bush foods, for hunting, collecting wood for turtle and dugong spears and for making ceremonial objects.

1059 The applicants pointed out in their submissions that their rights and interests spring from one communal source of authority namely the Law. The rights that individuals and families have in coastal burus are heavily qualified or restricted in favour of interests of the whole community. Examples are:

1. Rights in country which cannot be countermanded derived from mother, spouse, place of birth, jawul and other principles.

2. If a Law man wishes to enter a particular estate or clan area for Law business he cannot be excluded. Nor can he be prevented from entering to attend to the maintenance of sacred places on country.

3. When a person is given permission to hunt, fish or gather this cannot be withdrawn without good reason.

The applicants also pointed to the existence of the Nimidiman as plainly tribal territory from which no member of the community may be excluded. The existence of the Nimidiman and the rules relating to it are not consistent with the proposition that native title rights and interests reside in the clans.

1060 As to vacant or deceased estates or clan areas, these become the responsibility of neighbouring tribal members, non-resident clan members, relatives or other persons who have attachment to that area of country. Although clan members may die, the country never does, it lives on. It always remains Bardi country. The possibility, and indeed the likelihood, exists that over time a succession process would emerge although no clear succession rule, beyond the caretaker arrangements, was identified on the evidence.

1061 The clan connection with country is spiritual. The strength of attachment of clan members to a particular area may be of a different order to non-clan members. But those spiritual considerations, it was submitted, do not support the respondents’ arguments. The individual attachment of the clan member is an aspect of the shared spiritual order of the society. It is the law of that society which legitimises and sanctions the authority of the clan members subject to the constraints mentioned earlier. Moreover the clan areas are not very large and family areas even less so. What one clan can do on its country can vitally affect its neighbours. There are resources needed by the whole society located in the country of some clans only, such as ochre used in ceremony.

1062 In summary it was submitted for the applicants that the internal organisation of and distribution of rights and interests under the law essentially proved that there was one country not seven-twenty.

1063 The buru by buru approach favoured by the respondents was set out conveniently in the submissions of WAFIC. Their position was that the ethnographic material supported a finding that the Bardi and Jawi peoples are organised at least in relation to laws and traditions concerning their rights and interests in land on the basis of family groups with connection to a specific area of land being the buru. The evidence of the primary witnesses of the applicants was said to support the existence of a social system constituted by a number of family groups who express a particular connection to a specific area. The hearing of the on-country evidence at the first trial was based upon sequential visits to various burus and evidence about their existence and extent and their holders.

1064 The evidence for each buru was given by gamelid holders. The primary rights of ownership derived from patrilineal succession. Although rights or interests may be possessed by a Bardi person in his or her mother’s country or husband’s country, it was WAFIC’s submission that such rights are secondary and derivative from the rights of the gamelid. They are prevailed over by primary rights of ‘ownership’ of the ‘boss’. The concept of a ‘lifetime pass’ or a permission which it is difficult to revoke is a narrow right expressly conferred by the gamelid. It appears to have a limited focus on hunting and fishing. It can be withdrawn over concerns about the behaviour of the person to whom that ‘lifetime pass’ has been extended. As to the rights of Law men, WAFIC submitted that those rights may be greater than those exercised as at the date of sovereignty due to their growing centralisation. It accepted that the evidence does suggest that Law men have traditional rights to enter onto country for Law business. This however, did not detract from the submission that the primary landholding rights vest in the gamelid.

1065 Although the applicants had contended that Bardi/Jawi people have a traditional attachment to all their country even for areas for which other clans speak, the witnesses overwhelmingly emphasised their rights in their country and indicated that other areas were for other people to talk about. By way of example Mrs Tigan had not been to the galu country of her husband, Aubrey, and would not know much about it. Other witnesses were not sure of boundaries.

1066 WAFIC also referred to differences in evidence relating to each of the burus and the degree to which each buru could be said to accord with the traditional laws and customs in relation to the holding and transmission of rights in land. In Barrinybarr and Gununduburu there were exhibited many of the characteristics said to be part of the traditional law and custom in relation to burus and the transmission of country. Importantly the evidence showed the transmission of rights in land down an unbroken patrilineal line. In other parts of the claim area there was little or no evidence in relation to any existing buru of any observation of the traditional law and custom in relation to it. So specific areas such as Gulbun (Deep Water Point) and others do not have existing patrifiliates. In the majority of those areas, it was said, there is no, or no sufficient, evidence of succession.

1067 WAFIC also submitted that the evidence did not support a finding that Bardi/Jawi traditional law and custom provided for the holding of rights and interests in land or the passing of those rights and interests on a regional language group or community of kin basis. The submission advanced was that the evidence suggests there are some native title rights and interests existing in the claim area in relation to the onshore portion landward of the high water mark subject to extinguishing acts and legislation and regulations affecting the exercise of such rights.

1068 The rights and interests propounded by WAFIC in relation to existing burus would be defined by reference to surviving patrifiliates and those whom, as a matter of law and custom, may have rights derived from the patrifiliates. Those rights were:

(a) a right to live on the land;

(b) a right of access, to move about and use the land;

(d) the right to engage in spiritual and cultural activities on the land;

(e) the right to access, use and take any of the resources of the land for non-commercial purposes;

(f) the right to care for and maintain the land, including its places of spiritual or cultural significance; and

(g) the right to access and use the fresh water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.

All other rights and interests in relation to the offshore/onshore areas were disputed and, in particular, the claimed right to exclude others from the claim area.

1069 I have emphasised the WAFIC submissions because they probably represent the high point of the respondents’ positions generally. In my opinion, however, the considerations referred to by the applicants which were derived for the most part from the evidence of the Aboriginal witnesses, points strongly to the conclusion that the native title rights and interests of the Bardi people are held by the whole of that community in relation to the whole of their territory. The rights and interests of clan and family members are intramural distributions within that collective communal ownership. In my opinion the buru by buru mapping of native title rights and interests which is proposed involves a descent into fractal detail that is the antithesis of the policy of the legislation and the process of recognition which it seeks to advance. Primarily it is, in my opinion, at odds with the evidence. I am prepared to make a determination of native title rights and interests in the general form proposed by the applicants, albeit it will be limited to what I find to be the traditional territory of the Bardi society within the claim area.

1070 The applicants assert a right of exclusive possession of the land area under claim. They rely upon the evidence as to their use and occupation of it and the express evidence of exclusivity under traditional law and custom which was given at the second trial. That evidence, it was said, established that the applicants use and occupy the land for all the social, material and spiritual purposes of their lives and control the land in every respect.

1071 The applicants set out in their final submission a survey of the evidence from which exclusive possession could be inferred. This comprised testimony from a number of Aboriginal witnesses to the following effect:

1. The Bardi/Jawi speak for their country and this includes a right to exclude all others.

2. If non-Bardi/Jawi wish to enter the land, permission must be sought. The same rule applies to Bardi/Jawi who wish to go on to the land of others.

3. The traditional way of seeking permission was by way of smoke signal but there are modern ways now.

4. There are names for non-Bardi/Jawi, the most usual one being marriyun amburiny. The country can ‘sense’ strangers and they may come to harm from the country itself if they enter without permission.

5. The right to exclude is enforced by force if necessary. In traditional times it could mean death or at least severe physical punishment.

6. The senior Law men are responsible for giving or refusing permission and each must come to the aid of the other if assistance is needed.

7. The right to exclude non-Bardi/Jawi also applies to the middle country.

I accept that the evidence cited by the applicants was given by various of the Aboriginal witnesses and I accept also that it reflected their understanding of traditional law and custom in relation to the land on Dampier Peninsula in the claim area. The evidence referred to supports the inference that the Bardi community has, under its traditional law and custom, rights of possession and occupation of the land as against the whole world.

1072 The reference to ‘use and enjoyment’ in the context of exclusivity is, in my opinion, too widely stated and could pick up a variety of rights not contemplated by traditional law and custom. Use and enjoyment rights are, best defined more specifically. The right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation.

1073 In my opinion the following specific rights reflecting the terms of the amended application are supported by the evidence:

. the right to live on the land

. the right to access, move about on and use the land

. the right to hunt and gather on the land

. the right to engage in spiritual and cultural activities on the land

. the right to access, use and take any of the resources of the land (including ochre) for food, shelter, medicine, fishing and trapping fish and weapons for hunting and otherwise for ceremonial cultural and artistic purposes

. the right to refuse, regulate and control the use and enjoyment by others of the land and its resources

. the right to have access to and use the water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes

I do not consider that the claimed right to ‘care for, maintain and protect the land ...’ defines with any useful precision the nature of the entitlement which it confers or the activities which it would authorise. The right to access and use the resources of the land was expanded in the applicants’ submissions by reference to evidence in a way ultimately reflected in the above formulation.

1074 So far as offshore areas are concerned the extent of those areas which will be the subject of a determination is considered below. It is conceded that native title rights in relation to offshore areas including the intertidal zone are non-exclusive. The rights asserted by the applicants in their amended application are non-exclusive. Subject to the extent of the offshore areas covered by a native title determination in this case, the scope of the rights and interests in them is properly defined by the following:

. the right to access, move about in and on and use and enjoy the zone, the reefs and the associated waters;

. the right to hunt and gather including for dugong and turtle;

. the right to access, use and take any of the resources thereof (including the water of the intertidal zone) for food, trapping fish, religious, spiritual, cultural, ceremonial and communal purposes.

For reasons that are explained below, I am not prepared to make any determination in relation to Brue Reef or Alarm Shoals and therefore will not formulate native title rights and interests in relation to those areas.

Issue 5 – Whether by their traditional laws and customs the applicants have a connection with the land and waters of the claim area.

1075 The question whether the applicants, by their traditional laws and customs, have ‘a connection with the land and waters’ that are the subject of the application is a question required to be considered by s 223(1)(b). The meaning of the word ‘connection’ in this context has not been the subject of extensive judicial exposition.

1076 The Commonwealth submitted, on the basis of observations by Callinan J in Ward at [649] – [650],that a spiritual connection with land would not suffice. McHugh J agreed. However the majority in Ward did not express a view about the sufficiency of spiritual connection.

1077 It is important to bear in mind that where native title rights and interests are said to arise under traditional laws and customs the relevant connection of the applicants with their land or waters must be ‘by those laws and customs’. I take that to mean that the connection must be a relationship that exists by virtue of those laws and customs. This may be interpreted in more than one way. The connection may be constituted because of the authority conferred by traditional law and custom to enjoy and exercise the rights and interests which arise under it. On that construction the ‘connection’ requirement under s 223(1)(b) would mean little more than the requirement under s 223(1)(a) that the applicants have rights and interests in relation to the land or waters. It would render s 223(1)(b) largely redundant.

1078 The word ‘ connection’ could refer to a spiritual relationship which extends beyond mere rights and interests. That is to say it would indicate a relationship between people and their land and waters which is more than merely juridical. Such a construction would have the virtue of consistency with the widely recognised feature of indigenous association with country that is, as Brennan J said in Meneling Station (at 358), ‘primarily a spiritual affair rather than a bundle of rights’.

1079 The origin of the term ‘connection’ in the native title context however is to be found in the judgment of Brennan J in Mabo. One of the rules for the recognition of native title rights and interests there set down was that the group said to hold native title must show a continuing connection with the land in question. The emphasis of the collocation ‘continuing connection’ may have been on continuity rather than connection and intended to exclude the case where the land had been abandoned. Abandonment, which his Honour, elsewhere in the judgment, subsumed in the concept of extinguishment, is not a necessary consequence of physical absence which may be forced by colonising or other non-indigenous activities or circumstances. Physical presence is plainly relevant to connection in this sense but not necessary to establish it. The use of connection in the sense which emphasises continuity of association under traditional law and custom fits best with its origins in the Mabo judgment and has work to do in the definition of native title rights and interests. Approached in this way, the connection requirement involves the continuing internal and external assertion by the group of its traditional relationship to the country defined by its laws and customs and which may be expressed by its physical presence there or otherwise. Applying that construction to the present case, the evidence establishes the necessary connection at the communal level. This is so notwithstanding that particular estates may have fallen vacant or people moved around within the claim area to live in convenient centres. There was sufficient evidence of ongoing visitation and the assertion of the relevant relationship to country by Aboriginal witnesses to establish that the requisite connection of the Bardi people, as a whole, exists.

Issue 6 – Whether the rights and interests which exist under traditional law and custom are recognised by the common law of Australia

1080 Recognition, by the common law, of native title rights and interests arising under traditional law and custom, is a requirement of s 223(1)(c) of the Act. The Commonwealth submission summarised the principles underlying it as follows:

(a) Native title rights and interests will be ‘recognised’ for the purposes of s 223(1)(c) where an examination of them reveals no inconsistency between the rights claimed and the common law.

(b) Such inconsistency will arise where:

(i) the laws and customs are antithetical to fundamental tenets of the common law;

(ii) the rights and interests are incapable of enforcement by remedies known to the common law and equity;

(iii) where an inconsistent legislative or executive act has effected an extinguishment of native title rights and interests.

1081 The Commonwealth relied upon Yarmirr; Ward and Yorta Yorta. The Commonwealth also made the point, flowing from Yarmirr, that the common law will not recognise native title rights to exclusive possession of offshore areas below the high water mark. No exclusive rights are sought in relation to the offshore areas claimed. Subject to questions of extinguishment yet to be considered, I am satisfied that the native title rights and interests the subject of the proposed determination are recognised by the common law. Certain of the rights claimed in the amended application are, in my opinion, probably incapable of recognition by the common law because incapable of enforcement. These have been discussed earlier in these reasons.

Issue 7 – What are the lands and waters in respect of which a native title determination can be made

1082 I deal first with the land area under claim. For the reasons already advanced, none of the islands forming part of the traditional Jawi territory, ie to the east of Hadley Passage, will be the subject of the determination. This leaves the mainland area and islands adjacent to it which lie to the west of Hadley Passage.

1083 There was contention between the parties in respect of the southern boundaries of the claim area.

1084 In relation to the south-west extremity of the claim, the issue for determination is whether it extends to the south side of Pender Bay or stops at a point north of that area. The applicants and Mr Bagshaw argued that there is Bardi country on the south side of Pender Bay and that the present southern boundary of the claim area falls within and does not cover the full extent of Bardi country.

1085 The Commonwealth submitted that the pre-contact boundary on the west coast of the Dampier Peninsular was at Kelk Creek which runs into Pender Bay. It relied upon the following evidence:

1. Tindale’s informants said that Bardi country did not extend as far south as Pender Bay (X-AO).

2. Robinson specified Pender Bay as the boundary in 1979 (X-AO).

3. Green and Turner, acting for the Bardi and others, followed the Tindale maps (X-AO).

4. Elkin, in his 1933 map and in his 1935 paper, set the boundary at Pender Bay but not to the south of Pender Bay along the coast (X-AO).

5. Moya Smith in 1988 placed the boundary at Pender Bay (X-AO). She did the same subsequently in collaboration with Kalotas.

6. McGregor similarly identified Pender Bay, although his work was said by Mr Bagshaw not to be entirely reliable and disregard a proposition with which the Commonwealth agreed.

7. Worms in 1944 specified Pender Bay.

8. Neither Robinson nor Elkin identified any Bardi buru on the southern side of Pender Bay. Mr Bagshaw, late in proceedings, gave his opinion that land near Imbalgun was regarded as Bardi on account of ritual but did not say there was any burus south of Borlk.

9. The story of the two Bluebones was advanced by the applicants as a mythical enforcement of the boundary being at Pender Bay. Mrs Puertollano who gave evidence about that story was in no doubt that the story meant Pender Bay was the boundary. Mr Bagshaw, according to the Commonwealth, tried to resile from this story as indicative of a traditional boundary although only after claims in evidence by some of the applicants that Bardi country went further south.

10. There was no evidence or suggestion of succession, regency or annexation according to Bardi law.

11. Although Mr Bagshaw relied on Mr Sampi, Mr Sampi was not consistent and at one point said that the lakes near Borlk were Nyulnyul.

12. In the 2003 hearings Jimmy Ejai confirmed his understanding that Nyulnyul came from the south side of Pender Bay.

The Commonwealth also pointed to alleged deficiencies in Mr Bagshaw’s reasoning on this question. In so doing it was essentially engaged with argumentative opinion and it is not necessary to further consider that engagement here.

1086 As WAFIC pointed out in its submissions, Mr Kevin George identified the site of the bluebone fight, Barraban, as ‘... sort of close to the boundary’. Mrs Puertollano spoke of the Bluebones saying ‘one from Bard and another one from Pender Bay side Nyulnyul’.

1087 The applicants contended that the estates of Gurrbalgunbur and Imbalgunbur comprise part of traditional Bardi country and are located on the northern and southern banks respectively of Pender Bay. They referred to the territorial demarcation myth about the Bardi and Nyulnyul Bluebones which occurred at the place of the two rocks near the north bank of Pender Bay, ie at Barrambar. That is where the Nyulnyul figure was identified as trespassing into Bardi country.

1088 Imbalgunbur covers a coastal strip between the southern bank of Pender Bay and Widung Lake. There is said to be a restricted Law ground in Imbalgunbur which is part of an aggregate of areas forming part of a restricted traditional law associated with Bardi men. Evidence from Elizabeth Puertollano, Paul Sampi, R Bin Sali, Mr Bagshaw’s opinion and restricted evidence from Mr D Davey Senior, were said to support this. The applicants said there was substantial evidence supporting the continuing traditional connection in the area of Borlk, south of the southern boundary of the claim area.

1089 WAFIC offered a careful analysis of the evidence on the point. The Bluebones’ site Barrambar is on the north shore of Pender Bay. WAFIC referred to Mrs Puertollano’s evidence that one of the Bluebones was ‘from Pender Bay side, Nyulnyul’. Kevin George was asked whether Barrambar was a take-over place between Bardi and Nyulnyul. He said:

‘Not that I know that it is a real take over place, all I know this is sought of close to the boundary. He was coming over the boundary that Barrambar from that Nyulnyul side.’

He agreed that the errant bluebone ‘got on the wrong side’. Subsequently he said that the people from Imbalgunbur were Nyulnyul. Later that day he said he had made a mistake and that Imbalgunbur was part of Ollongon and Bardi.

1090 Paul Sampi said that Imbalganbur was Bardi and that Kevin George was wrong. WAFIC submitted that Mr Sampi’s evidence in relation to boundaries should be disregarded. It was said to contain significant inconsistencies particularly in relation to where the boundary and Nyulnyul traditional country were located. Initially he himself made an error in identifying the southern boundary of Bardi country. I interpolate that in cross-examination by the State on this issue there seems to have been some difficulty in the identification of the boundary on the map and possibly some confusion between questions relating to the origin of the Nyulnyul Bluebone and questions relating to the Nyulnyul Bardi boundary.

1091 Paul Sampi said that the Imbalgunburu was occupied by Henry Bujun, a Bardi man. On 28 June 2001, Kevin George said that Bobby Bowles was the right person for the Bell Point or Imbalgun area, and that he was Bardi on his mother’s side. WAFIC pointed out that the applicants did not call a family member of Henry Bujun or Bobby Bowles to give evidence about the area or about their affiliations. No evidence was given by persons living in the area as to whether they were descended from Mr Bujun. It was submitted that because of the uncertainty as to whether Mr Bujun was Bardi or identified with some other regional or tribal affiliation the references to his connection with Imbalgun should be disregarded by the Court.

1092 Mrs Bin Sali said in evidence that Nyulnyul were at Bells Point before Bardi came there. This fitted in with Mr Ejai’s evidence that Nyulnyul used to be on the south side of Pender Bay ‘around that way’.

1093 Mr Bagshaw on the last day of his testimony referred to a restricted Law ground at Imbalgun. This had not been previously mentioned as a basis for his views about the southern extremity of the Bardi territory.

1094 In my opinion the evidence relied upon by the applicants in relation to the south-western boundary is not sufficient to establish that it extends as far as they contend to the south side of Pender Bay. Evidence from some of the applicant witnesses suggests ambivalence about whether Bardi land traditionally went that far south. In my opinion it is more probable, having regard to the previous ethnographies and other matters referred to by the Commonwealth and WAFIC that any Bardi presence south of Pender Bay probably reflects post-contact expansion rather than traditional country. I would be prepared to find that the Bardi country extends as far south as the site referred to by Mr George and Mrs Puertollano. It will be necessary that any draft determination reflect that finding.

1095 The Commonwealth submitted that Bardi country did not extend further south on the east side than Cunningham Point. In support of that proposition it relied upon earlier ethnographies and submitted that the Court should follow the Tindale map on the basis that:

1. Tindale alone investigated and explored the anomaly that some ethnographers had identified south-eastern neighbours as Nyulnyul, while others had identified them as Nimanbur.

2. The Tindale map was endorsed by Green and Turner acting on behalf of the Bardi in their 1984 submission.

3. The Tindale map accorded with the weight of Aboriginal evidence.

1096 WAFIC contended that there was simply insufficient evidence to establish the Bardi claim with respect to the area in dispute. It argued that the evidence supported a conclusion of an expansive southerly movement of the Bardi people into the south-east corner at the expense of previous or existing neighbours who were the Nimanbur. WAFIC referred to Mrs Bin Sali’s evidence that Jerome Monardo, who belonged to Garramal, was a Nimanbur man but also a Bardi. However he was not called as a witness. Irene Davey at the second trial said that Madarr at Goodenough Bay was Bardi country. However Mr J Rock gave evidence that the east and south side of Cunningham Point and Goodenough Bay was Nimanbur. I have referred earlier in these reasons to evidence given by Mr Bagshaw on the question. WAFIC submitted, by reference to the Tindale maps, that when they were made Nimanbur had recently moved into the territory adjacent to the Bardi people and displaced Nyulnyul in so doing.

1097 The applicants submitted that ‘the appropriate conclusion’ was that Garramal-Madarr/Cunningham Point area was an area of shared interests between Bardi and Nimanbur. Khaki Stumpagee spoke of Cunningham Point as the southern extent of Bardi country. Mr J Rock said ‘Bardi country north beach of Cunningham Point, Nimanbur is East and South side’. Mrs Rosie Bin Sali said, inter alia, that Garramal was Jerome Monardo’s place and that he was a Nimanbur man.

1098 In my opinion the applicants have not established, on the balance of probabilities, that their traditional territory at sovereignty extended as far to the south-east as claimed. I am therefore prepared to make a determination that covers the land area as far south as Cunningham Point.

1099 The next land area issue relates to the islands immediately to the north of the Dampier Peninsula and to the south-west of Hadley Passage. The Commonwealth pointed out that Tindale showed all the islands including Jackson Island as Jawi which accords with the map by Dr Wace and the letter of Sidney Hadley (X-AO). Hadley told Commissioner Wroth in 1904 that the ‘Sunday Island natives’ did not claim the mainland but did claim some of the adjoining islands.

1100 According to Dr Skyring’s evidence, senior Jawi men, supported by the National Aboriginal Council, wrote of the islands belonging to the Jawi in 1982. The Commonwealth again relied on Green and Turner’s reliance upon Tindale in their 1984 submission. Robinson agreed with Tindale. Elkin thought Jackson Island was mixed and was a ‘stepping stone’ between Bardi and Jawi.

1101 The term ‘Inalabulu’ which is a word of Jawi origin means islanders. The Commonwealth submitted that Tallon Island was Jawi on all early accounts. Apart from Elkin who said that Jackson Island was mixed, all the earlier accounts concluded that Jackson Island was Jawi. The Commonwealth submitted that all the islands east of Swan Point were traditionally Jawi albeit the Jawi had lost their connection with them.

1102 WAFIC made submissions along similar lines. It also pointed to evidence by Aboriginal witnesses that originally all the islands were Jawi. Bernadette Angus said that ‘Bardi people live on the mainland and Jawi people in the islands, Sunday Island’. Asked if Jalan (Tallon Island) was Bardi or Jawi she said it was Jawi. As for Jayirri (Jackson Island) she said:

‘Jawi. Bardi, Jawi, I don’t know. Might be now – all I know on islands is Jawi.’

She said that the older people had told her the island was Jawi in the old days.

1103 Aubrey Tigan was not clear on whether Jalan was Bardi or Jawi. Khaki Stumpagee’s wife gave evidence that Jalan and Jackson Islands were Bardi and that the Jawi islands started from Ralral and Bulnginy up to Sunday Island. Paul Sampi said that all of the islands are mixed Bardi and Jawi. Mr F Bin Sali gave evidence to like effect. On the other hand Paul Sampi said that the old people from Jalan spoke Jawi.

1104 In my opinion the evidence does not allow me to infer that the islands to the immediate north of the mainland were Bardi country at the time of sovereignty. Indeed the degree of inconsistency in this respect suggest that they may well have been Jawi in earlier days. I will not include any of the islands to the north of the Dampier Peninsula in the determination.

1105 The next question that arises relates to the offshore areas. I am satisfied that the intertidal zones and associated reefs adjacent to the mainland Bardi country form part of that country and should be included in the determination. For reasons set out by the Commonwealth in gender restricted submissions, I do not include the rock feature known as Lalariny.

1106 The applicants, in submissions which referred globally to the Bardi and Jawi, asserted the right to use and enjoyment of the sea. The right they said was to be inferred from general evidence given as to:

1. hunting and fishing in the sea and the significance of this to the subsistence of the Bardi/Jawi;

2. the use of the sea and its currents to travel about;

3. the presence of places of spiritual significance in the sea.

Reliance was placed upon evidence of the use of the galwa or bielbiel rafts and the barrawar or dugout canoes. Reference was made to the evidence of Aubrey Tigan:

‘I have seen Bardi people using galwal or bielbiel. I’ve seen Sandy Paddy with beilbeil on the mainland, he had one at Djarindjin, I’ve seen him use it. He made it at Bulgin. When I was little and my grandfather and other old people were telling me stories, they told me that Baniol mob had beil beil. Old man George from Pender Bay, Kevin George’s nyami, he used to tell me the story of our history and he used to talk about turtle, then dugong and the sea, and about using beil beil all the time to get them. When I was small I remember asking my father why they called it Catamaran Bay, and he told me that it was the first time that gayar or white fella had seen an Aborigine on a beil beil. My old dad was a teacher so he had this knowledge.’

The applicants referred to several witnesses who made it clear that in their recent experience galwa or beilbeil were used by people on the Bardi mainland as well as on the Jawi islands. In this connection reference was made to the evidence of Mr D Davey, V Angus and J Ejai.

1107 The Commonwealth and WAFIC submitted that there was no evidence to justify native title rights and interests beyond the intertidal zone.

1108 In my opinion, the evidence as to use of the open sea beyond the intertidal zone was limited to use. It did not establish definable rights under traditional law and custom in relation to that use. In any event given that the applicants eschew any right to commercial fishing and given that any rights of use of the open sea could only be non-exclusive, the claimed right is somewhat tenuous. I am satisfied that Bardi country extends to the intertidal zone and associated reefs. It extends to exposed reefs identified by witnesses from the shoreline in the course of their evidence. It necessarily covers the waters in and around those features.

1109 I accept that there was evidence of the use of the rafts by Bardi people but the evidence of access to the sea on the western side of the claim area was scant. The evidence could support, in my opinion, more extensive use of waters to the north of the mainland in the region of the islands and knowledge of tidal currents. However given my findings about the position of the islands, I am not satisfied that the evidence is sufficient to support even there a finding of Bardi native title rights and interests in the waters beyond the low water mark and exposed reefs.

1110 In summary, the portion of the claim area for which a determination will be made is the Dampier Peninsula as far south as the Barrambar site on Pender Bay on the west side and Cunningham Point on the east. A southern boundary may be defined by a line joining them but I will entertain further submissions on that question. The area of the determination will also include the intertidal zone and exposed reefs adjacent to it or otherwise identified by witnesses in the course of their evidence together with the waters in and around those features.

1111 The next question is whether Alarm Shoals can be the subject of a determination of native title rights and interests. The rights and interests claimed in respect of this area were:

(i) the right to access, move about in and on and use and enjoy the area for spiritual purposes;

(ii) the right to care for, maintain and protect the area as a place of spiritual significance.

1112 Restricted evidence was given about Alarm Shoals by Mr Paul Sampi. It was given at both the first and second trials. It is not necessary to say anything about the content of that evidence for present purposes save to make one observation. The evidence was directed to the spiritual significance of the area and the necessity to keep people away from it. The right to care for and protect it referred to in the claim, was underpinned by evidence that was entirely directed to a need to exclude people from visiting it. It is clear, however, that no right to exclude other people from visiting Alarm Shoals would be recognised by the common law. The broadly framed right to care for and protect the area does not convey, in my opinion, any other right cognisable by the common law.

1113 On the evidence of Mr Sampi the non-exclusive right to go to the area and move about on it could only be incidental to a right to exclude or prevent others from crossing the area or visiting it. Given that the common law cannot recognise the true primary right being sought in this case, the ancillary right cannot be recognised.

1114 This leaves the question of Brue Reef. The applicants claimed that Brue Reef has a current mythological significance to Bardi and Jawi. The figures associated with the reef are said to be mythological figures recognised in the religious life of both Bardi and Jawi. The story associated with Brue Reef has already been set out in the evidence and does not need to be repeated here. Mr Bagshaw said that the thematic form and structure of the story:

‘Strongly point to it being a mythological expression which almost certainly predates the first period of sustained contact with Europeans in the Northern Dampier Peninsula-King Sound region. (ie circa mid-1810s).’

The applicants contended that the nature and content of the myth is that of a creation myth. In the Brue Reef story the reef was land with people living on it in grass huts. The huts have now been transformed into coral structures and the land submerges with the tides as does the rock, Minin, which adjoins the reef and which in mythology is a whale.

1115 The applicants argued that the fact that no ethnography prior to the current claim has mentioned Brue Reef is hardly conclusive. The story has been in existence since at least Hadley’s time in 1913. Ethnographers commenced their work generally about or after that time. The applicants contend the better explanation that ethnographers were simply not focussed upon such a matter and so it did not come up in their fact gathering. They also noted that Dr Wace’s map in X-AU Attachment B shows islands occasionally visited. Brue Reef is not an island and so it is not surprising that it is not shown. However the map does include Caffarelli Island which is not far from Brue Reef.

1116 In my opinion the fact of the existence of a mythological story about Brue Reef, whether or not it dates from pre-sovereignty time, does not establish native title rights and interests in relation to it under traditional laws and customs, whether they be the laws and customs of the Bardi people or those of the Jawi. There is force in the proposition that the content of the Brue Reef story is inconsistent with anyone having rights to it. The men who were rescued by Jul were men who had drifted there. They were sent safely back to their homes by Jul. This is hardly the foundation for an assertion that the Reef is part of traditional country. In my opinion, whether claimed by Bardi or Jawi or both, there is no basis disclosed on the evidence for the existence of native title rights and interests in Brue Reef. It follows from this also that the Bardi/Jawi No 2 application will be dismissed.

Issue 8 – to what extent has native title been extinguished

1117 The State set out in its final submissions, filed on 24 November 2003, a list of asserted current land tenures within the claim area. The existence of these tenures was not contested. I therefore find as a matter of fact the following interests held within the claim area:

Special leases granted under s 116 of the Land Act 1933

(a) Special Lease (‘SL’) 3116/10633 in Dampier Location 297 was granted to the Djarindjin Aboriginal Corporation for the special purpose of the use and benefit of Aboriginal Inhabitants for a term of fifty years commencing 1 July 1991.

(b) SL 3116/10656 in Dampier Location 290 was granted to the Pender Aboriginal Corporation for the special purposes of the use and benefit of Aboriginal Inhabitants for a term of fifty years commencing 1 October 1991.

Reserves

(c) Reserve 25106 (Area 1) for the use and benefit of Aboriginal inhabitants was originally set apart as a public reserve for native purposes on 5 September 1958. On 15 June 1973 the reserve was proclaimed to be reserved for persons of Aboriginal descent. By Order in Council dated 26 June 1973, pursuant to s 33 of the Land Act 1933-1971, it was vested in the Aboriginal Lands Trust for the designated purpose of ‘Use and Benefit of Aborigines’. On 17 May 1994, by Order in Council, the vesting of 26 June 1973 was revoked and by further Order in Council, pursuant to s 33 of the Land Act 1933-1971, Reserve 25106 was vested in the Aboriginal Lands Trust for the ‘Use and Benefit of Aboriginal Inhabitants’ with power to lease the whole or any portion thereof for any term.

(d) Reserve 20927 (Area 2) for the use and benefit of Aborigines was originally set apart as a public reserve for use of Aboriginals on 9 September 1932. The area and boundary of the reserve was variously amended on 24 February 1933, 10 March 1950, 29 June 1962, 10 June 1966, 29 March 1968, 24 November 1972. On 15 June 1973 the reserve was proclaimed to be reserved for persons of Aboriginal descent. By Order in Council dated 29 June 1973, pursuant to s 33 of the Land Act 1933-1971, Reserve 20927 was vested in the Aboriginal Lands Trust for the designated purpose of ‘Use and Benefit of Aborigines’. The area of the reserve was further amended on 14 March 1975. On 24 April 1980 part of the reserve was resumed for the purpose of a new road.

(e) Reserve 34257 (Area 6) for the conservation of flora and fauna was originally set apart as a public reserve for conservation of flora and fauna on 17 September 1976. By Order in Council dated 8 September 1976 it was originally vested in the Western Australian Wildlife Authority to be held in trust for the purpose of conservation of flora and fauna and, after intervening changes, it is once again so vested. By notice dated 4 June 1982 it was named ‘Swan Islands Nature Reserve’. The area of this reserve was previously vacant Crown land. By Order in Council dated 5 May 1989, having been designated a Class ‘A’ Reserve, under s 33 of the Land Act 1933 it was vested in and ordered to be held by the National Parks and Nature Conservation Authority in trust for the purpose of ‘Conservation of Flora and Fauna’.

(f) Reserve 38931 (Area 11) was originally set apart as a reserve for use and benefit of Aboriginals on 30 November 1984. By Order in Council dated 30 November 1984, pursuant to s 33 of the Land Act 1933-1971, it was vested in the Aboriginal Lands Trust in trust for the use and benefit of Aboriginal Inhabitants with power to lease the whole or any portion thereof for any term.

(g) Reserve 39002 (Area 12) was originally set apart as a reserve for hospital and allied purposes on 15 February 1985. By Order in Council dated 15 February 1985, pursuant to s 33 of the Land Act 1933-1971, it was vested in the Minister of Public Health in trust for the purpose of hospital and allied purposes.

(h) Reserve 41094 (Area 20) was originally set apart as a public reserve for camping on 18 October 1991. By Order in Council dated 18 October 1991, pursuant to s 33 of the Land Act 1933-1971, it was vested in the Shire of Broome for the purpose of camping.

1118 For the purposes of s 47A of the Act the State accepts that, at the date the application was made, one or more members of the native title claim group occupied the areas described in pars (a), (b), (c), (d) and (f).

1119 For the purposes of s 47B of the Act the State accepts that, at the date the application was made, one or more members of the native title claim group occupied those parts of the claim area which were Unallocated Crown Land shown as Areas 3, 4, 7, 8 (Dampier Location 289), 9, 14 (Dampier Location 211), 16, 18, 21 and 22 (Dampier Location 243). Area 21 shows areas of Unallocated Crown Land between ‘high water mark and mean high (sic) water mark’. As appears from the map spreadsheet for Area 21 the reference should have been to ‘mean low water mark’ not ‘mean high water mark’.

1120 In respect of historical land tenure, the Court makes the following findings:

Freehold title

(a) Apart from those areas which are excluded from the claim because there has been a grant of freehold over an area to which ss 47A or 47B can have no application, the following areas have been subject to previous grants of freehold:

(i) Reserve 38931 (Area 11) and Reserve 39002 (Area 12) were previously covered wholly by freehold certificate of title CT 1063/363 in Dampier Location 25 granted to the Pious Society of Missions Incorporated, as Crown Grant in Trust, registered under the Transfer of Land Act 1893 on 2 June 1939. Part of CT 1063/363 was cancelled on 16 July 1984, the balance being transferred to Her Majesty Elizabeth the Second (the Crown) to be held under CT 1670/882 until 30 November 1984 when that CT was cancelled.

Pastoral Leases

(b) The entire mainland and several islands of the claim area have been subject to pastoral leases, details of which follow:

(i) PL K913 (Areas 9 & 21) granted to Albert R De Launay and A Edgar for the period 1 July 1882 to 31 December 1893, application for which was approved on 6 October 1882 in accordance with the Land Regulations proclaimed 29 November 1880;

(ii) PL 5/26 (Areas 1 & 18) granted to MacKay Brothers for the period 1 January 1883 to 31 December 1893, application for which was approved on 3 February 1883 in accordance with the Land Regulations proclaimed 11 October 1882; PL 5/36 (Areas 3, 5, 8, 9, 20 & 21) granted to Edward Wilson for the period 1 January 1883 to 31 December 1893, application for which was approved on 13 June 1883 in accordance with the Land Regulations proclaimed 11 October 1882;

(iii) PL 5/40 (Areas 3, 4, 5, 21 & 22) granted to William Bryan and Henry Hilliard for the period 1 January 1883 to 31 December 1893, application for which was approved on 19 June 1883 in accordance with the Land Regulations proclaimed 11 October 1882;

(iv) PL 5/41 (Areas 2, 3, 4, 5, 7, 17 & 21) granted to Donald McDonald McKay for the period 1 January 1883 to 31 December 1893, application for which was approved on 19 June 1883 in accordance with the Land Regulations proclaimed 11 October 1882;

(v) PL 5/262 (Areas 9 & 21) granted to Bryan & Co for the period 1 July 1886 to 31 December 1893, application for which was approved on 1 November 1886 in accordance with the Land Regulations proclaimed 11 October 1882;

(vi) PL71/150 (Areas 2, 3, 5, 7, 17 & 21) granted to Sydney Hadley and Henry Hunter for the period 1 January 1888 to 31 December 1907, application for which was approved on 20 July 1888 in accordance with the Land Regulations proclaimed 2 March 1887;

(vii) PL 71/400 (Areas 1 & 18) granted to Henry Hunter for the period 1 January 1898 to 31 December 1907, application for which was approved on 7 November 1898 in accordance with the Land Regulations proclaimed 2 March 1887;

(viii) PL 71/401 (Areas 2, 5, 7, 17 & 21) granted to Henry Hunter for the period 1 January 1898 to 31 December 1907, application for which was approved on 7 November 1898 in accordance with the Land Regulations proclaimed 2 March 1887;

(ix) PL 98/124 (Area 18) granted to Montague Sydney Hadley for the period 1 January 1899 to 31 December 1928, application for which was approved on 22 March 1899 in accordance with the Land Act 1898 (WA);

(x) PL 98/321 (Areas 3, 4, 5, 21 & 22) granted to Henry Forster Shaw for the period 1 April 1901 to 31 December 1928, application for which was approved on 17 May 1901 in accordance with the Land Act 1898;

(xi) PL 98/370 (Areas 2, 3, 4, 5, 7, 17 & 21) granted to Henry Forster Shaw for the period 1 July 1902 to 31 December 1928, application for which was approved on 5 July 1902 in accordance with the Land Act 1898;

(xii) PL 98/375 (Areas 3, 4, 5, 8, 9, 10, 13, 14, 15, 16, 20 & 21) granted to Henry Hunter for the period 1 July 1902 to 31 December 1928, application for which was approved on 29 September 1902 in accordance with the Land Act 1898;

(xiii) PL 98/581 (Areas 3, 4, 5, 21 & 22) granted to Jenkins and Hunter for the period 1 July 1904 to 31 December 1928, application for which was approved on 7 September 1904 in accordance with the Land Act 1898;

(xiv) PL 98/645 (Areas 3, 5 & 21) granted to Thomas Puertollano for the period 1 October 1905 to 31 December 1928 in accordance with the Land Act 1898, and registered under the Transfer of Land Act 1900 on 26 May 1911;

(xv) PL 98/659 (Areas 2, 3, 4, 5, 7, 17 & 21) granted to A McLachlan for the period 1 April 1906 to 31 December 1928, application for which was approved on 4 April 1906 in accordance with the Land Act 1898;

(xvi) PL 98/754 (Areas 2, 3, 4, 5, 7, 17 & 21) granted to Chas Morrissey for the period 1 April 1907 to 31 December 1928, application for which was approved on 2 May 1907 in accordance with the Land Act 1898;

(xvii) PL 98/871 (Areas 3, 4, 5, 21 & 22) granted to Archie Hale for the period 1 April 1908 to 31 December 1928, application for which was approved on 24 April 1908 in accordance with the Land Act 1898;

(xviii) PL 98/897 (Areas 2, 5, 7, 17 & 21) granted to Harry O’Grady for the period 1 April 1909 to 31 December 1928, in accordance with the Land Act 1898, and registered under the Transfer of Land Act 1900 on 3 October 1910;

(xix) PL 98/1124 (Areas 2, 17 & 21) granted to Harry O’Grady for the period 1 April 1918 to 31 December 1928, in accordance with the Land Act 1898 and registered under the Transfer of Land Act Amendment Act 1909 on 7 August 1918;

(xx) PL 98/1215 (Areas 5, 7 & 21) granted to The Pious Society of Missions Incorporated for the period 1 April 1918 to 31 December 1948, in accordance with the Land Act 1898, and registered under the Transfer of Land Act Amendment Act 1909 on 14 January 1931;

(xxi) PL 98/1280 (Areas 3, 4, 5, 8, 9, 10, 13, 14, 15, 16, 20, 21 & 22) granted to The Perpetual Executors, Trustees and Agency Company (WA) Limited for the period 1 April 1918 to 31 December 1928, in accordance with the Land Act 1898, and registered under the Transfer of Land Act Amendment Act 1909 on 1 August 1924;

(xxii) PL 98/1922 (Areas 5, 7 & 21) granted to Thomas Puertollano for the period 1 October 1917 to 31 December 1928, in accordance with the Land Act 1898, and registered under the Transfer of Land Act Amendment Act 1909 on 17 April 1918;

(xxiii) PL 98/2176 (Areas 2, 17 & 21) granted to Frederick Albert Everett for the period 1 October 1928 to 31 December 1948, in accordance with the Land Act 1898, and registered under the Transfer of Land Act Amendment Act 1909 on 7 February 1929;

Special Leases

(c) The following Special Lease have previously been granted under s 152 of the Land Act 1898 over parts of the claim area:

(i) SL 152/440 (Areas 2, 17 & 21) granted to Henry Hunter for the purpose of ‘Boat Building’ for the period 1 July 1902 to 30 June 1903, application for which was approved on 1 September 1902;

(ii) SL 152/604 (Area 17) granted to The Madge Pearling Company for the purpose of ‘Boat repairing’ for the period 1 January 1904 to 31 December 1904, application for which was approved on 28 January 1904;

(iii) SL 152/844 (Areas 2, 4, 8, 10, 20 & 21) granted to Henry Hunter for the purpose of ‘Poultry Site’ for the period 1 October 1904 to 30 September 1908, application for which was approved on 1 October 1904;

(iv) SL 152/1466 (Area 18) granted to Harry O’Grady for the purpose of ‘Building Purposes’ for the period 1 January 1914 to 31 December 1918, application for which was approved on 112 March 1914;

(d) The following Special Leases granted pursuant to s 116 of the Land Act 1933 have previously been held over parts of the claim area:

(i) SL3116/3656 to Dampier Location 68 (Areas 2, 17 & 21) granted to Dean Murdoch Brown for the special purpose of ‘grazing in connection with a Pearl Culture Project’ for the period 1 July 1967 to 30 June 1972, and registered on 17 October 1967 in conformity with the Transfer of Land Act 1893;

(ii) SL 3116/5372 to Dampier Location 84 (Area 17) granted to Dean Murdoch Brown for the special purpose of ‘grazing on connection with a Pearl Culture Project’ for the period 1 January 1972 to 31 December 1981, and registered on 26 July 1973 in conformity with the Transfer of Land Act 1893;

(iii) SL 3116/8550 (Areas 4, 8, 10, 20 & 21) granted to The Roman Catholic Bishop of Broome for the special purpose of ‘Grazing’ for the period 1 January 1983 to 31 December 1987, and registered on 10 June 1983 in conformity with the Transfer of Land Act 1893;

(iv) SL 3116/9519 to Dampier Location 84 (Area 17) granted to Lyndon Mayfield Brown and Bruce Richard Brown for the special purpose of ‘Cultivation and Grazing support of Pearl Settlement’ for the period 10 March 1986 to 1 March 1996, and registered on 10 December 1986 in conformity with the Transfer of Land Act 1893;

(v) SL 3116/10471 to Dampier Location 243 (Area 22) granted to Loxwood Pty Ltd for the special purpose of ‘Oyster Nursery’ for the period 1 April 1990 to 31 March 1999, and registered on 6 January 1992 in conformity with the Transfer of Land Act 1893.

Reserves

(e) Reserve 1834 (Areas 4, 5, 9, 10, 13, 14, 15, 16 & 21) vested in Aboriginal Lands Trust WPL for the ‘Use of Aborigines’ was created on 17 June 1891;

(f) Reserve 20927 (Areas 17 & 21) vested in Aboriginal Lands Trust WPL for the ‘Use of Aborigines’ was created on 9 September 1932.

Other interests in the claim area

In addition to the interests referred to a number of pearling and aquaculture interests are held in the claim are. They are:

(a) Pearl Oyster Farm Leases issued under the Pearling Act 1990 (WA):

(i) on 1 January 1991 to BR and LM Brown at Catamaran Bay;

(ii) on 1 January 1994 to Blue Seas Pearling Company at Cygnet Bay;

and

(iii) on 1 January 1997 to JD and SJ Arrow at Pender Bay.

(b) Aquaculture Licences issued under the Fish Resources Management Act 1994 (WA);

(i) on 10 June 1999 to Wulgurding Aboriginal Corporation at Perpendicular Head;

(ii) on 10 June 1999 to Bardi Aborigines Association at One Arm Point;

(iii) on 10 June 1999 to Gumbarnun Aboriginal Corporation at Whimbrel Point;

(iv) on 10 June 1999 to Gudumul Aboriginal Corporation at Goodenough Bay;

(v) on 10 June 1999 to Nilagoon Aboriginal Corporation at Sunday Islands.

1121 In addition to these interests, there were fishing and pearling interests identified by the WAFIC and the Commonwealth which are also adopted by the State. The fishing interests identified by WAFIC are set out in Exhibit AAA which comprises a Notice to Admit Facts annexing a large number of documents evidencing the existence of various fishing licences and offshore leases. These comprise:

1. Fishing boat licences granted under the Fisheries Act 1905 (WA), the Fish Resources Management Act 1994 (WA) and the Fisheries Act 1952 (Cth). Licences to take fish and professional fishermens licences granted under the Fisheries Act 1905 (WA) are listed. So too are commercial fishing licences granted under the Fisheries Management Act 1994 (WA), Master Fisherman’s licences granted under the Fisheries Act 1952 and Certificates of Registration of Nets, Traps and Equipment to take Fish granted under that Act. WAFIC lists fishing permits granted under the Australian Fisheries Management Act 1991 (Cth). There are a number of pearl oyster farm leases which have historically been granted in relation to areas within the claim area under the Pearling Act 1990 (WA), exclusive licences granted under the Pearling Act 1912 (WA) and Aquaculture Licences granted over areas within the claim area under the Fish Resources Management Act 1994 (WA).

1122 It is not necessary to list all these interests for present purposes, particularly having regard to the findings in relation to offshore matters and the absence of any claim for commercial fishing rights on the part of the applicants.

1123 Pearl oyster farm leases granted within the claim area and listed by WAFIC are as follows:

Date of Grant	Lessee	Term
30/6/97 (Pender Bay)	JD & SJ Arrow	1/1/1997–31/12/2001
22/1/2001 (King Sound Deep Water Point)	Blue Seas Pearling Company	1/1/2001 – 31/12/2003
1/1/1994 Cygnet Bay A, Cygnet Bay B and Cygnet Bay C	Blue Seas Pearling Company	1/1/1994 – 31/12/2014
16/1/1992 Catamaran Bay A, Catamaran Bay B and Catamaran Bay C	BR & LM Brown	1/1/1991 – 31/12/2012
15/12/1993 Disaster Bay and Goodenough Bay	Roebuck Pearl Producers Pty Ltd	1/1/1994 – 31/12/1998
1/1/1991 Disaster Bay and Goodenough Bay	Roebuck Pearl Producers Pty Ltd	1/1/1991 – 31/12/1993

1124 The Commonwealth in its submission referred globally to leases, licences and permits issued pursuant to statutes set out in a schedule of legislation which was annexed to the submissions. It is not necessary for present purposes to reproduce that list here save to note that it includes the Fisheries Act 1952, the Fisheries Management Act 1991, the Pearl Fisheries Act 1952, the Pearl Fisheries Act 1953 and the Pearl Fisheries Act (No 2) 1953.

1125 Telstra and its predecessors have installed telecommunication facilities within the geographical area of the claim boundary. These include:

(a) the Leveque radio site;

(b) customary radio terminal;

(d) local distribution cabling.

1126 The Leveque radio site is a facility located on Dampier Location 297 in an area comprising four hectares. It consists of an 80 metre guide mast on a concrete base with guy wires extending from the mast to concrete guide blocks in three directions. The outer most guide blocks are 63 metres to 65 metres from the mast base. It also comprises two equipment buildings, solar arrays and a 1.8 metre high fence around the base of the mast. It was constructed in 1986 by the Australian Telecommunications Commission as part of the installation of the Broome Digital Radio Concentrator System. Telstra says that the construction of the facility was valid in so far as it affected native title.

1127 There are facilities throughout the claim area referred to as customer radio terminals which are installed on the premises of customers from time to time and provide a link between them and the national telecommunications network.

1128 Telstra also owns an underground optical fibre cable which runs through the claim area for approximately 70 kilometres. It has spurs to the Leveque radio site, to Lombardina Mission, Cape Leveque and Cygnet Bay. It was installed in 1996 under statutory powers conferred on Telstra pursuant to ss 129 and 131 of the Telecommunications Act 1991 (Cth). Telstra also owns other telecommunications cabling which is installed in the claim area. The cabling was installed under statutory powers conferred on Telstra and its predecessors from time to time by Commonwealth legislation.

The extinguishing effect of the grant of mainland interests

1129 The interests granted on the mainland which have been identified by the State are not in dispute. Nor is it disputed that native title has been extinguished totally in respect of the areas subject to Reserve 34257 (Area 6), Reserve 39002 (Area 12) and Reserve 41904 (Area 20) by virtue of the vesting of the areas under s 33 of the Land Act.

1130 The State accepts that for the purposes of s 47A of the Act one or more members of the native title claim group occupied the area covered by:

(a) Special Lease 3116/10633 (Dampier Location 297) granted to the Djarindjin Corporation.

(b) Special Lease 3116/10656 (Dampier Location 290) granted to the Pender Aboriginal Corporation.

(d) Reserve 20927 (Area 2) for the use and benefit of Aborigines vested in the Aboriginal Lands Trust; and

(e) Reserve 38931 (Area 11) for the use and benefit of Aboriginal inhabitants vested in the Aboriginal Lands Trust.

1131 The State has also accepted that s 47B of the Act applies to Areas 3, 4, 7 and 8 (Dampier Location 289), 9 and 14 (Dampier Location 211), 16, 18 and 21 (as to the part above mean high water mark) and 22 (Dampier Location 243). There is no contest between the State and the applicants as to the conclusion that were it not for the application of ss 47A and 47B respectively any native title in the areas identified would have been totally extinguished or partially extinguished in areas affected by historical pastoral leases. If despite the concession of the State, the Court is not satisfied as to ‘occupation’ by members of the native title claim group of the relevant area for the purposes of ss 47A and 47B then any extinguishing effect of historical tenures would need to be determined.

1132 In Hayes v Northern Territory (1999) 97 FCR 32 at 143, Olney J, referring to the word ‘occupy’ in s 47B said (at 144, [162]):

‘The occupation of land should be understood in the sense that the indigenous people have traditionally occupied land rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights. The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, have its customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.’

1133 In Western Australia v Ward (2000) 170 ALR 159 at [449], Beaumont and von Doussa JJ said:

‘We think a broad view should be taken of the word ‘occupy’ in the requirement in s 47A(1)(c) that one or more members of the native title claim group occupy the area. We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the land so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so.’

See also Passi on behalf of Meriam People v Queensland [2001] FCA 697 at [29] per Black CJ; Rubibi Community v Western Australia (2001) 112 FCR 409 at 450, [182] per Merkel J; Daniel v Western Australia [2003] FCA 666 per Nicholson J.

1134 Applying these authorities by reference to the findings I have already made about the communal ownership of the whole of the land the subject of the proposed determination, I am satisfied that at the time of the application it was occupied in the relevant sense by one or more members of the native title claim group. I am satisfied therefore that, in respect of the areas identified by the State, the requirements of ss 47A and 47B are met and prior extinguishment is able to be disregarded.

1135 WAFIC contended that so far as the intertidal zone affected by past grants of interest is concerned the concept of occupation, as explained in the cases cited above, is inapplicable. WAFIC submitted that the proper meaning of ‘occupation’ entails a notion of residency or permanency albeit that presence on the area may not be continuous. Rights and interests in the intertidal zone, because of the nature of the area must be mere usufructuary rights, rather than rights giving rise to any possibility of occupation in terms of residency or permanent use.

1136 I do not accept that the concept of ‘occupation’ in ss 47A or 47B is as narrow as WAFIC contends. The nature of the rights which can be recognised by the common law in the intertidal zone does not determine the question whether occupancy of the intertidal zone is possible in the relevant sense. In my opinion from the point of view of the Bardi people the intertidal zone is part of their country and perhaps the most important part because of the sustenance it has always provided to them. They exercise physical access to it and use it. I consider that occupation of the intertidal zone can occur if occupation is understood in the broad sense relevant to the kind of uses that indigenous people make of their land. In my opinion the intertidal zone in the determination area was occupied in the relevant sense at the time the application was made and that the provisions of ss 47A and 47B would apply to it.

1137 WAFIC also submitted that pearl oyster farm leases granted in the claim area prior to 23 December 1996 were prior exclusive possession acts for the purposes of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA). It submitted that such leases are granted for a commercial purpose, namely to carry on the cultivation of pearls for commercial purposes. It referred to evidence adduced at the first trial about the nature of pearl farm operations and the kind of infrastructure and investment necessary to support them.

1138 WAFIC contended that the pearl oyster farm leases were commercial leases and therefore previous exclusive possession acts within the meaning of s 23B of the Act which had the effect of extinguishing native title. However the definition of previous exclusive possession acts does not extend to commercial leases which are agricultural leases. The definition of ‘agricultural lease’ in s 247(2) of the Act includes a lease that permits the lessee to use the land or waters covered by the lease primarily for aquacultural purposes. Aquacultural purposes are not defined in the Act. Nor is the term to be read as importing statutory definitions in other legislation. The term ‘aquaculture’ seems to be of relatively recent vintage. The Second Edition of the Oxford English Dictionary refers to the systematic exploitation of the sea, marine husbandry or aqua-culture, albeit the reference is only a quotation from a usage in 1962. The Shorter Oxford English Dictionary defines ‘aquaculture’ as ‘the rearing of aquatic animals or the cultivation of aquatic plants for food’. There is no definition in the Macquarie Dictionary.

1139 The purpose of the agricultural and the aquacultural exceptions to the definition of prior exclusive possession acts, which includes commercial leases, should be borne in mind. Aquaculture, in the context of the definition of agricultural lease of which it is made part by s 247(2), should be read as widely as that definition. This supports a beneficial construction rather than a construction which would maximise the scope of extinguishment. On that basis aquaculture includes the use of waters for growing plants or marine animals including pearl oysters for the production of pearls. It is not to the point that there is a substantial infrastructure involved or that the operation is one to be protected against intruders. That is unaffected by the absence or otherwise of the permanent extinguishment of native title rights and interests. In my opinion the grant of a pearl oyster farm lease prior to 23 December 1996 is not a prior exclusive possession act under the Act and does not attract the extinguishing application of the Titles (Validation) and Native Title (Effect of Past Acts) Act.

1140 WAFIC then sought to make submissions about the pearl oyster farm leases which expired prior to 23 December 1996. The only relevant leases were those granted in Disaster Bay and Goodenough Bay which lies south of the proposed area of the determination. These are not relevant for present purposes.

1141 In respect of pearl oyster farm leases granted after 23 December 1996, WAFIC submitted, and I accept, that they prevail over any native title rights and interests to the extent of any inconsistency – s 44H of the Act.

1142 Special leases for pearling purposes granted in the past and now expired did cover areas including the intertidal zones. I have already held that ss 47A and 47B of the Act apply where such areas have reverted to unallocated Crown land.

1143 WAFIC then referred to the historical grant of exclusive licences under the Pearling Act 1912 (WA). There were some 15 of these licences granted to various parties between 1960 and 1979, all of which are now expired. WAFIC argued that the exclusive rights created by these licences were akin to leasehold rights. They related to specific areas of up to four square miles. They conferred upon the licensee the sole and exclusive right to plant, cultivate and propagate pearl oyster shell and to gather, collect and remove shells from the area specified (s 35). Their holders were entitled to remove persons from the areas of the licences (s 51). Penalties were imposed for interfering with pearling activities conducted under them. The grant of such licences, it was said, extinguishes native title to the waters covered by them to the extent of any inconsistency. This, it was said, included any commercial or subsistence rights to take pearl oysters or pearls from the areas covered. No question of the rights to use pearl shell for commercial purposes arises in this case. The applicants, however, do use pearl shell for ceremonial purposes and take oysters for food. I do not accept that such licences could be said to evidence an intention to extinguish established subsistence rights exercised by Aboriginal people of the claim area. They were not leases and were not designated as such.

1144 I accept that aquacultural licences granted over parts of the determination area under the Fish Resources Management Act 1994 (Cth) will prevail over any native title rights and interests to the extent of any inconsistency.

1145 Other interests were mentioned, both historical and current, which were said to be inconsistent with any exclusive rights to the use of the areas covered by them. But given that no exclusive rights are sought offshore, the submission is inapplicable.

1146 WAFIC then argued for global extinguishment of any native title rights to take pearl oysters or pearl shell for subsistence or ceremonial purposes. WAFIC relied in particular upon the legislative scheme established by the Pearling Act 1912 which was a consolidation of previous legislation and its successor, the Pearling Act 1990. The result for which they would contend is draconian. It is not one lightly to be arrived at. It is sufficient to say that having reviewed the analysis of fishing and pearling legislation offered by WAFIC, I accept the submission made by the applicants that the scheme of the legislation provides not for absolute prohibition but for licensing regimes. As the joint judgment in Yanner observed (at 373, [39]):

‘Section 211 of the [Native Title Act] provides that a law which “prohibits or restricts persons” from hunting or fishing “other than in accordance with a licence, permit or other instrument granted or issued to them under the law”, does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists. By doing so, the section necessarily assumes that a conditional prohibition of the kind described does not affect the existence of the native title rights and interests in relation to which the activity is pursued.’

1147 The legislative regimes described do not necessarily evidence, nor should there be imputed, an intention to exclude the enjoyment of ceremonial and subsistence usage of the kind which has been carried on by the Bardi people since the time of sovereignty in the claim area. I am not satisfied that the extinguishment contended for is made out. In the circumstances s 211 of the Act would apply to the preservation of such limited native title rights and interests in the context of contemporary legislation.

1148 Telstra submits that, in relation to the Leveque radio site native title has been extinguished as its construction was that of a ‘public work’ within the meaning of the Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act. It was constructed prior to 23 December 1996 and is a structure which is a fixture created by a statutory authority of the Commonwealth. The validity of the construction was not in issue. Notwithstanding the operation of s 47A of the Act asserted in respect of the construction by the applicants, Telstra relied upon the judgment of the Full Court in Erubam Le (Darnley Islanders) (No 1) v State of Queensland (2003) 202 ALR 312 for the proposition that s 47A(2) does not apply to require disregarding of extinguishment brought about by the construction or establishment of a public work prior to 23 December 1996. This is because the construction or establishment of a public work is not the ‘creation of any ... prior interest in relation to the area’ within the meaning of s 47A(2)(b) and 47B(2) – see Erubam Le at 331, [90].

1149 The decision of the Full Court in Erubam Le was the subject of a special leave application lodged on 12 November 2003 but that was discontinued on 7 May 2004. It applies to the present case. I will therefore exclude from the determination the site described thus:

‘The Leveque Radio Site, being a square shaped area of four hectares (200 metres x 200 metres), the right side corner points of which are located 138.59 metres from a station mark located at Longitude 122054’52.6 Latitude 16032’25 and the left side corner points of which are located 141.42 metres from the same station mark.’

1150 I accept that the determination should include in the statement of ‘other interests in the determination area’ reference to the interests of Telstra as formulated by Telstra in its submission filed 30 October 2003.

Conclusion

1151 For the reasons set out above I am prepared to make a determination of native title along the lines indicated in these reasons in favour of the applicants for the area of the Dampier Peninsula to the Bluebone Rocks in Pender Bay on the south-west side and Cunningham Point on the south-east side bounded otherwise to the south by a line joining those two points or such other line as may be agreed between the parties. The determination would extend to the intertidal zone and adjacent reefs exposed at low tide as well as other reefs in the area which are exposed and particularly those visible from the shore or from the intertidal zone. I will hear from the parties as to the way in which the determination should define the limits of such reefs. The parties may wish to prepare a list of the relevant reefs as the most accurate way of representing the area covered by the determination.

1152 The determination of native title rights and interests will be subject to the other interests which have been referred to and subject to the extinguishing acts which have been identified. The parties will have liberty to apply on the question whether any further determination should be made in respect of land lying within traditional Jawi territories.

I certify that the preceding one thousand one hundred and fifty two (1152) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 10 June 2005

Counsel for the Applicants:	K Bell QC, G Irving and K Guest

Solicitor for the Applicants:	Ian Irving, Kimberley Land Council

Counsel for the Commonwealth:	K Petitit SC and A Rorrison

Solicitor for the Commonwealth: Counsel for the State of Western Australia: Solicitor for the State of Western Australia: Counsel for the Western Australian Fishing Industry Council: Solicitor for the Western Australian Fishing Industry Council: Counsel for B & L Brown and Blue Seas Pearling Company: Solicitor for B & L Brown and Blue Seas Pearling Company:	Australian Government Solicitor R Webb and T Creewell State Crown Solicitor P Quinlan and K White Hunt & Humphry K White Hunt & Humphry

Date of Hearing:	30 June 2003, 1 and 2 July 2003, 2, 3 and 4 March 2004

Date of Judgment:	10 June 2005

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