FEDERAL COURT OF AUSTRALIA

CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204

THE COURT ORDERS THAT:

1.    The Court will hear from the parties as to the terms of the final orders to be made.

2.    If the State wishes to submit that any order other than an order dismissing the proceeding should be made, it shall file and serve a draft order and submissions in support on or before 26 March 2015.

3.    If any such submission is made by the State, the applicants have leave to file and serve responding submissions on or before 9 April 2015.

4.    In that event, the matter be listed for final hearing on 10 April 2015 at 9:15am.

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

THE COURT ORDERS THAT:

1.    The Court will hear from the parties as to the terms of the final orders to be made.

2.    If the State wishes to submit that any order other than an order dismissing the proceeding should be made, it shall file and serve a draft order and submissions in support on or before 26 March 2015.

3.    If any such submission is made by the State, the applicants have leave to file and serve responding submissions on or before 9 April 2015.

4.    In that event, the matter be listed for final hearing on 10 April 2015 at 9:15am.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

Nature of proceeding and issues

1    In these related proceedings, claimants, on behalf of a claim group comprising descendants of named ancestors and who identify themselves as Badimia people, apply, under the Native Title Act 1993 (Cth) (NTA), for a determination that they hold native title in relation to land and waters in the vicinity of Mount Magnet in the Murchison region of Western Australia (claim area).

2    Proceeding WAD 6123 of 1998 was the initial proceeding by which the claimants made their claim. Proceeding WAD 100 of 2012 (Badimia # 2 application) was the proceeding subsequently filed with a view to attracting the beneficial operation of s 47B NTA in respect of areas of unallocated Crown Land (UCL) within the claim area. The parties and the Court have treated the two proceedings as one and in these reasons for decision they are simply referred to as the proceeding.

3    Under s 225 NTA, in such a proceeding the Court is required to make a determination, “whether or not native title exists” in relation to the claim area and, if it does, to make a determination of:

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

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

(3)    the nature and extent of any other interests in relation to the claim area;

(4)    the relationship between the rights and interests in paras (b) and (c) (taking into account the effect of the NTA); and

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

4    Thus, before a determination can be made, the Court must determine whether native title exists and then, if it does, the extent to which it has been extinguished.

5    In relation to the question whether native title exists and, if so, who the persons or group of persons holding the native title are, and the nature and extent of the native title rights and interests concerned, s 223(1) NTA defines the expressions “native title” and “native title rights and interests” as being:

the communal, group or individual rights and interests of Aboriginal peoples … in relation to land or waters, where:

(a)     the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples …; and

(b)    the Aboriginal peoples …, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

6    Because of s 223(1)(b), issues going to the existence of native title are often referred to by the shorthand expression, connection issues.

7    Other issues, particularly those going to the nature and extent of native title rights and interests in light of executive and legislative acts that have occurred since sovereignty, are often referred to by the shorthand expression, extinguishment issues.

8    In this proceeding the claimants contend that they hold communal or group native title and, by the evidence they have led, have satisfied the s 223 requirements for proving that native title as defined exists.

9    The s 223 requirements for proving the existence of native title, and the reasons for them, have been explained by the High Court of Australia in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422, where the Court emphasised that, for native title to subsist today, claimants must, in effect, be able to demonstrate that they are the successor “society” to that which held native title at sovereignty and in each generation since then without “substantial interruption”.

10    Having regard to these requirements, the State, while accepting there was a group of Aboriginal people known as Badimia at the time of British sovereignty in Western Australia, expressly submits the claimants have failed to establish:

(1)    that the “society” of people in occupation of the claim area at sovereignty was Badimia; or

(2)    what the traditional laws and customs of that sovereignty society were for allocating rights in relation to the claim area; or

(3)    that traditional laws and customs have been continuously acknowledged and observed from sovereignty to the present day in the claim area; or

(4)    that, by or under traditional laws and customs which have continued to be acknowledged and observed in the claim area, the claimants have throughout the period maintained a connection to the claim area; or

(5)    that the particular rights and interests now claimed are possessed under traditional laws and customs presently acknowledged and observed in the claim area.

11    The other respondents (apart from Telstra Corporation Ltd) adopt the State’s position on these connections issues.

12    There may be a distinct question in some cases under the NTA as to whether the members of a claimant group are the “traditional owners”, to use a general expression, of the country they claim. In some circumstances, the group may be a recognised traditional group of Aboriginal people, but the question is whether, at sovereignty, their traditional country was the country they now claim, or lay elsewhere. For example, if a group migrated, subsequent to sovereignty, to the country they now claim, their claim will fail. See AB (deceased) (on behalf of the Ngarla people) v State of Western Australia (No 4) [2012] FCA 1268; (2012) 300 ALR 193.

13    In other circumstances, the migration question may arise in a different way. There may be no dispute that a particular group of Aboriginal people traditionally owned the claim area at sovereignty, but a question may arise as to whether all members of the claimant group can trace their ancestry to persons who were the traditional owners at sovereignty and so are able to be included as holders of native title in the determination that native title exists. In State of Western Australia v Graham on behalf of the Ngadju people [2013] FCAFC 143; (2013) 305 ALR 452 (Nadju FC), for example, it was held that persons descended from a particular claimed apical ancestor, who was found not to be one of the traditional owners at sovereignty, could not be determined to be part of the group which held native title.

14    In each example just given, it does not matter that the claimants and ancestors concerned may have or have had an historical connection with the claim area, that is to say, have lived in the claim area for a long time commencing at some point after sovereignty and be knowledgeable about the claim area from an indigenous perspective. Unless the Yorta Yorta requirements concerning society are satisfied, the Court is unable to determine that native title exists under the NTA.

15    In this proceeding, therefore, four key (although related and overlapping) connection issues arise, namely:

(1)    whether the claim area was Badimia country at sovereignty;

(2)    if so, whether the apical ancestors identified by the claimants were Badimia people;

(3)    if so, whether the native title rights and interests now claimed by the claimants can be said to be possessed under traditional laws and customs; and

(4)    if so, whether the claimants presently have a connection with the claim area by those traditional laws and customs.

16    If connection is made out by the claimants, extinguishment issues are raised by all respondents (including Telstra).

Connection issues – introduction

Inferences

17    What is clear from all the connection evidence received at the hearing of the claim is that, unlike some other reported native title claims, the European record pertaining to Aboriginal connection with the claim area is particularly limited and often quite generalised. This has the result that, in this proceeding, there is a question about what reasonable inferences may be drawn by the Court in respect of key issues from the evidence led at trial.

First contact

18    It is not in contest that the period of first contact between Aboriginal people and the agents of the British Crown, following the assertion of British sovereignty in Western Australia in 1829, occurred in the claim area around the 1850s. After contact, the pastoral industry was the first major settler industry established in the claim area, principally from the 1870s, followed, in the 1890s, by mining. There is no doubt that each of these industries had a serious impact on Aboriginal peoples in the general vicinity of the claim area, including the claim area, and on their traditional way of life.

Ethnographic material

19    There are very few early contemporary records about the Aboriginal people who occupied the claim area in these earlier times. The Assistant Colonial Surveyor, Robert Austin, provided a report in the 1850s. Daisy Bates collected some ethnographic material pertinent to this proceeding in the early 20th century. Norman Tindale, the noted ethnographer, undertook some research in relation to the claim area in the late 1930s and also in the 1960s. In the early 1930s, and again in the late 1930s or early 1940s, DS Davidson, an American anthropologist, also conducted ethnographic research. As will be seen below some of this material would appear to refer to Badimia people, although none provides a precise account of their culture or the location of their traditional country.

20    In the post-Second World War era, Dr Ruth Fink obtained data in the vicinity of the claim area for her PhD dissertation about “tribal distribution” in the Murchison. Some years later, in the early 1980s, married couple Richard Kingsford and Leone Dunn, conducted research in the broader area: Kingsford for his masters thesis on “Yamadyi Law”, and Dunn for her masters thesis on the Badimia language. Linguistic research was also carried out in this later era by WJ Oates and LF Oates, WH Douglas and N Thieberger.

Introduction to claimants’ evidence

21    There was a considerable body of evidence led from the Aboriginal witnesses at the hearing, over two tranches of Aboriginal evidence taken on country (in 2010 and 2012) which attested to their, and to their families’, identity as Badimia people and their connection with the claim area. In that regard, the historical association of the claimants and their old people of whom they gave evidence at the hearing is not in doubt. What is in issue, as noted above, is the traditional association of the claimants and their ancestors with the claim area.

22    As to present connections a number of claimants gave evidence of their own association with the claim area, which may be generally mentioned at this point.

23    Darryl Fogarty said that when he was young he went mustering at Averest (in the south-eastern part of the claim area) with his uncles Jim and Bill Clinch. Mr Fogarty said his uncles had always worked down around Mouroubra Station and Pindabunna Station because they always worked inside the Badimia boundary.

24    More recently, Mr Fogarty said he went to Thundelarra Station camping with his wife. He said when he is driving past he will usually pull into Salt Creek (west of Paynes Find) and check to make sure everything is alright and that the spring is still working and clean it out. Salt Creek is a permanent water source, where wildlife gather and the Bimara (a Dreaming being) resides. Mr Fogarty said “[w]e do quite a lot out that way and it’s our home. We get bush tucker if there’s coglas, bowgarda beans, biymba, candy candy which are flat beans from the mulga tree..”. He used to always go around Warriedar Station too and camp.

25    Coral Brockman stated that now that she lives away from the Badimia claim area she returns often and particularly each Easter with her family. Ms Brockman said that when she was younger her mum insisted that she and the other young people visit Badimia country. Ms Brockman said that her mother did not give them a choice because her mother knew they were too young and silly but she made them come out and she taught them about their culture and their history. She stated that “since 1969 I’ve been coming out to Paynes Find and Goodingnow Station and also to visit Warrdagga [Hill]” with her family. She said Warrdagga is a significant spiritual site to Badimia people.

26    Ms Brockman gave evidence that Badimia country is where she and her family feel safe and can connect with their ancestors. Ms Brockman said she feels comfortable in Badimia country and it is important in building up their spirit. The more she goes to Badimia country the more the spirits become familiar with her and the more comfortable she feels. She wants her children to have that connection too.

27    Ms Brockman said she gets her rights to speak for country from her ancestors being born on the land, from her blood links to Badimia land.

28    Another person who has lived outside of the claim area for periods of time is Beverly Slater who is a member of the Clinch family. Ms Slater, who says she is Badimia through her family, currently lives between Perth and Perenjori. Ms Slater maintains that although Perenjori is not in the Badimia claim area it is traditional Badimia country.

29    Desmond (Des) Thompson gave evidence that when he was young he would go out bush with his mother, Rita Green (Mrs Thompson) (now deceased) and she would tell him the stories about when she was a child and where she had been. She taught him and his siblings how to catch kangaroo, find emu eggs and where to look for bush foods. Mrs Thompson used to take him to Mount Magnet to visit family, like CG (the late Ms C George), and later lived there with his uncle, Jack Merrick. Mr Thompson is married to Phyllis Bandy and has lived and worked in Mount Magnet off and on since 1958. Mr Thompson has worked on various pastoral stations in the claim area. He considers he is Badimia and that the claim area is Badimia country.

30    (The Court here notes that, in the case of recently, or relatively recently, deceased members of the claimant group the Court has endeavoured, with the assistance of the claimants’ legal representatives and in accordance with the custom of the group, to ensure that the deceased persons are appropriately referred to in this judgment. For example, the full name of CG – the late Ms C George – has not been used. In the case of persons who have been deceased for many years, the Court understands it is appropriate for it to refer to the names by which those persons were known when they were alive. For example, Rita Green (Mrs Thompson) and Joe Benjamin are referred to by their names.)

31    Ronald (Ron) Bandy gave evidence that his mother was Dorothy Little, a Badimia woman born at Wydgee Station, just south of Mount Magnet. He said his mother’s father, Tommy Little was born in the Paynes Find area, in Badimia country. Mr Bandy was born in Mount Magnet and his granddaughter and grandson live there. Mr Bandy said he “takes the boys out on our country to do what we all do on our country; go bush, hunt, cook up a feed here and there. I think they’re getting the swing of it”. Mr Bandy’s grandfather, Tommy Little and grandmother, Cissy brought him up, mostly around Wydgee Station.

32    Mr Bandy said that he was taught the Badimia side and lived on Badimia country so he followed his mother’s Badimia ways, not his father’s side. He gave evidence that people obtain knowledge about being Badimia from their parents and other old people. He maintained that if “your parents are from Badimia country then you should learn about the country from them and the other old people in your family”.

33    Mr Bandy said that since he first left school he has worked extensively on pastoral stations on Badimia country such as Yoweragabbie, Austin Downs, Windimurra, Challa and Meeline Stations. Mr Bandy said he also worked out toward the Sandstone area, Lake Mason, Youanmi, Yuinmery and Lake Barlee (which although outside the claim area he considered to be traditional Badimia country). When asked in cross-examination if he has a strong connection to Meeline Station because he spent more time there, Mr Bandy agreed. Mr Bandy said that recently he had moved to Wiluna for work and spends about three months a year in Badimia country. He said he would stay longer or live in Mount Magnet if he could get work.

34    Mr Bandy gave evidence that he has spent a lot of time around Windimurra, back to Lake Karan, and in the area down near Narndee Station. He stated “[l]ast year my kids and I went through a lot of that area around Windimurra, Paynes Find and Mount Gibson. I have six kids and two grandkids and we all went together. We travelled through Burnabinmah, Warriedar, Thundelarra on the way, we went through and had a look, we usually bring some of the Badimia kids from Perenjori too. It is important to take those Badimia kids out on country as much as we can and teach them about the country and ways of hunting, camping and preparing food”.

35    Ashley Bell gave evidence that he has lived continuously at Ninghan Station for the last 27 years. He said he has a strong connection with the southern portion of the claim area. Mr Bell was brought up on Ninghan Station when his parents were hired to work there. He said the family had to move to Wubin so he and his siblings could go to school. Wubin is not within the claim area but Mr Bell considers Wubin is also traditional Badimia country. When Mr Bell and his family lived in Wubin they always came back to the claim area to visit uncles, from his mother’s family, the Clinch family.

36    Mr Bell’s mother, Leah Bell, was born under a tree at Paynes Find and is the daughter of Ruth Clinch. Ms Bell also lives at Ninghan Station. Ruth Clinch was the daughter of Uanda, one of the two Aboriginal wives of Thomas Augustus Clinch, generally known as Gus Clinch, a European man who was the pastoral lessee of Goodingnow Station. Goodingnow Station is the adjoining station to Ninghan Station and within the claim area.

37    Mr Bell’s son, Drew, his partner and their two children also live on Ninghan Station. Mr Bell gave evidence to the effect that six generations, descended from Uanda, have maintained a continuing connection to the southern portion of the claim area.

38    Mr Bell gave evidence that he learned stories and was told about sites by his uncles and grandfathers, who used to take him out into the bush. He said “if I get a week off I go bush by myself or with my family”. Mr Bell said he regularly goes to Warriedar and Thundelarra Stations and checks sites, caves and goes hunting. When he was cross-examined, Mr Bell was asked what he does when he is at Mongers Lake in the south-west of the claim area. Mr Bell said that as well as doing his everyday work, he also checks sites, cleans waterholes and checks on the country in general. He teaches his son to do this.

39    Ollie George was born on Pullagaroo Station, in the claim area, in 1934 and currently lives in Mount Magnet with his children and grandchildren. Mr George gave evidence that his mother (Ms C George) was Badimia and she was born “out in the bush” on the land that is now Wynyangoo Station. Mr George said in cross-examination that he considered his mother’s mother, Rosie, was a Badimia person, because she was “living in this land”. Mr George said he was raised by Nugget Sport, and his wife Dinah, on Kirkalocka Station. When being cross-examined at Chewar Rockhole on Kirkalocka Station, Mr George said Nugget Sport was the “king for this area” and he and Dinah “spoke Badimia language”, as he, Mr George, still does.

40    Mr George also gave evidence that “I have lived on stations all over my Badimia country. When I was growing up I moved between Paynes Find and Yalgoo, living on stations south of Mount Magnet and on Narndee Station which is about seventy kilometres north-east of Paynes Find. We lived on Kirkalocka, Wydgee, Yoweragabbie, Thundelarra, Pindabunna and Wogarno Stations”. Mr George gave detailed evidence about the places he has camped at and worked on in the claim area.

41    Mr George stated that it is important to make sure the young ones go out with him so they get his knowledge before he passes away. He said he has taken his sons out to Bulgardoo, Goloway, Thugaru and the bardi site at Kirkalocka Station. He has showed them all the rockholes on Kirkalocka Station and on the west side of Wydgee Station, and the white cockatoos site on Kirkalocka Station.

Outline of Dr Choo’s evidence

42    Expert historical and anthropological evidence was also give at the hearing. The following expert reports of the historian, Dr Christine Choo, called by the claimants, were received into evidence:

    Applicants’ Expert Historian Report filed 11 May 2012 (Dr Choo’s first report).

    Applicants’ Expert Historian Further Report filed 27 August 2012 (Dr Choo’s further report).

    Applicants’ Expert Historian Supplementary Report filed 27 August 2012 (Dr Choo’s supplementary report).

43    Dr Choo holds a Masters of Philosophy (specialising in Australian studies) and a Doctorate of Philosophy (in history). She is an Honorary Research Fellow at the University of Western Australia. Her experience and expertise were not questioned in the proceeding. The respondents chose not to call evidence from an expert historian.

44    The range of sources consulted by Dr Choo in compiling her reports included:

    primary archival documents generated by the Western Australian Government and held by the State Records Office of Western Australia;

    files generated by the Aborigines Protection Board, the Aborigines Department and its successors and files of the police department relating to particular police stations;

    primary archival documents held in private archives including the Archives of the New Norcia Benedictine Community;

    primary archival documents held in the Commonwealth archives;

    secondary sources in the style of local and family histories;

    witness statements and transcripts of evidence given by Badimia claimants as preservation evidence in the litigation proceedings; and

    books and other publications written by individuals who may have lived or worked in and around the claim area, including personal reminiscences of early European settlers and prospectors.

45    In addition to this research, Dr Choo was also provided with the Applicants’ Expert Anthropological Report prepared by Mr Michael Robinson filed 25 May 2011 (Mr Robinson’s first report) and the First Respondent’s Expert Anthropological Report prepared by Dr Ron Brunton filed 1 December 2011 (Dr Brunton’s first report).

46    Dr Choo stated in her first report that there is a singular lack of secondary sources regarding Badimia country and the Murchison region. The history of the region has not been seriously studied or documented in any other way except within the context and style of local and family histories written to commemorate anniversaries and events that are significant to the European settlers. As such, these documents are highly Eurocentric in content and approach. Dr Choo, however, placed some reliance on the book entitled, Drawn to Mt Magnet: Wannars, Dolly Pots, Shears (Shire of Mount Magnet, 1995) by Lorna Day and Karen Morrissey (Day and Morrissey), as many of their Aboriginal informants were related to the Badimia claimants.

47    In her first report Dr Choo detailed the explorers and surveyors who travelled either through, or close to, the Badimia claim area. Records of explorers who did not travel into the claim area provide evidence for Aboriginal occupation of Badimia land through inference, since Aboriginal people were observed in areas of the Murchison immediately to the north and to the west of the claim area. Dr Choo discussed the Assistant Surveyor Robert Austin’s encounters with Aboriginal peoples within the claim area in 1854, which were at times hostile.

48    Other expeditions that Dr Choo has recorded also provide evidence of Aboriginal occupation of the claim area. Most significantly she mentioned Government Surveyor HS King’s expedition in 1886, on which he renamed a number of places with European names, changing them to Aboriginal names.

49    Dr Choo stated that the settlement of Western Australia was aided by the cheap labour provided by Aboriginal people. She said the relationship between the Aboriginal population and the European settlers was relatively benign in the claim area and Badimia people were able to coexist with explorers, pastoralists and miners after European settlement of their country.

50    In her first report, Dr Choo did not express an opinion on whether the descendants of the claimed apical ancestors were Badimia people. Having given consideration to the evidence of the Aboriginal witnesses in the proceeding, however, Dr Choo ventured the opinion that those who claim that they are the descendants of the apical ancestors are Badimia people.

51    In the process of her research Dr Choo came to the view that the ancestors of the current claimants had lived and worked on pastoral stations within the claim area from the creation of the stations by European families. These families were amongst the first Europeans with whom the Badimia came into contact. She said Aboriginal peoples tended to resist leaving their own country, attempting instead to remain attached to particular stations and places to which they had strong familial or community connections. Pastoralists and their families too formed strong bonds with particular Aboriginal families who worked for them.

52    Dr Choo stated that the attachment that Aboriginal people had to their land was recognised by the Chief Protector of Aborigines in his annual report of 1905:

Each little tribe of natives so loves its own little district, and this love has been inherent in these races for such a long period that the old and crippled members of the tribe will hardly ever seek relief out of their district. They will die first; and to prevent such a wholesale cruelty, I see no way but to continue nearly all these relieving stations.

53    Dr Choo expressed the view that after the spread of pastoral stations through Badimia country the Aboriginal peoples of the area would attach themselves as shepherds and general hands to a station that adjoined their particular country. When not working they camped, hunted and gathered food as they had always done. Thus they were able to adapt their traditional way of life to their new environment.

54    Dr Choo could not find Department of Aboriginal Affairs records for all pastoral stations within the claim area. She was, however, able to find Department of Aboriginal Affairs records for many of the stations which, in her opinion, showed that the ancestors of the current Badimia claim group lived and worked on the stations.

55    Some station records provide an insight into the relationships between Aboriginal people and station owners in earlier times. Dr Choo said Kirkalocka Station was recorded as having a sympathetic station manager, Mr Fred Broad, in the first half of the 20th century, and three Aboriginal people, Nugget, Dinah and Emily are recorded as living there. (As noted above, Ollie George gave evidence that Nugget Sport and Dinah raised him on Kirkalocka Station and other stations south of Mount Magnet.)

56    Mr Broad fought to protect many Aboriginal people who were starving or had no clothing. Letters sent by him to the Department of Aboriginal Affairs (as it is currently known) requesting rations for “Lizzie” received the response from the Department that “Lizzie” be removed to Moore River Native Settlement, outside and well south of the claim area. Mr Broad wrote back to the Commissioner of Native Affairs stating:

These old native women have no wish to be transported out of their native country, and where a station is willing to supply food, it does not seem right to me that the Department would bear the cost of transport, and food whilst living at the mission, against the small cost of providing clothing, rugs, and allowing the old women to remain in their own district.

57    Nalbarra Station employed a number of Aboriginal people in the late 1800s and early 1900s but not much detail is known. All the work on the station was done by the Aboriginal people. There was a camp where 20 to 30 Aboriginal people lived on the property. The station supplied flour, tea, sugar, dresses for the women and clothes for the men.

58    Department of Aboriginal Affairs records indicate that there were eight Aboriginal people living there in the late 1950s, including the Fogarty family and Ollie George. In the early 1960s Audrey Bell, Tony Clinch and Robert Anderson were recorded as working there as seasonal workers. In the late 1960s Jones family members and Josephine Wheelock were recorded as working and living at the station.

59    Dr Choo noted that the first mention of the Little family in the claim area was in 1901 when a white man named Little was mentioned by Travelling Inspector GS Olivey to the Chief Protector of Aborigines. This man, James Chapman Little, was married to Polly, and his five children were mentioned. Mr Little’s daughter was listed as being at “Mr Clinch’s”.

60    Topsy Little, daughter of James Chapman Little and Polly, was later married to Mr J Green, a European man, who died young. She then married Arthur Fogarty and they lived in Paynes Find with their three children.

61    Daisy Little, Topsy’s younger sister, married Fred Hedlam and had five children. In the 1930s and 1940s, many Little family children attended the Paynes Find school. Dr Choo located records that indicate that, in the 1950s, the Little family were still living and working in the claim area.

62    The Fogarty family were described by Dr Choo as descendants of William Fogarty and Juumbi, whose son Arthur Fogarty, as just noted above, married Topsy Little. Dr Choo has located records that indicate that in the 1950s, the Fogarty family were living and working in the claim area.

63    Dr Choo noted that there are records of Ada Martin and James Martin living on Yoweragabbie Station during the 1940s. She noted Ada and James were the children of Fred Martin and Lily Little. Fred Martin, his wife and eight children were camped around Mount Magnet in 1941 and they were one of five Aboriginal families camping there. In 1949, Fred Martin wrote to the Secretary of the Australian Labor Party in Mount Magnet to complain about the treatment he had received at the hands of the local police. The police had required him to report when he entered the town of Mount Magnet, then a mining town, to get supplies.

64    In 1903, a police report recorded that, when patrolling Barron, Goodingnow and Ninghan Stations, five native dogs were destroyed that belonged to Carnamah Freddy, Topsy and Dinah who were employed at Ninghan Station. Dr Choo stated that the Carnamah family married into the Wheelock (aka Willock) family. Fred Carnamah married Mary Wheelock (Budi), the daughter of Edmund Wheelock and Topsy. She said William Wheelock, Mrs Thompson’s first husband, was recorded in Yalgoo in 1915, and was also known as “Munguddy”. He was approximately 23 years old. Josephine Wheelock worked at Edah Station in 1968. Dr Choo states that records indicate that the Carnamah family lived around Yalgoo in the 1940s and 1950s.

65    The George family and the Walsh family lived and worked on stations throughout the claim area. Dr Choo noted Ms C George provided data to Dr Kim Fleet who undertook research in the claim area. Ms C George was said to be close to 100 years old when she died in 2005. Dr Fleet was able to collect data from Ms C George (which Mr Robinson, the anthropologist called by the claimants, has utilised) in relation to the George family’s occupation of the claim area since first contact. Mr Robinson estimated that the George family apical ancestors, Bilygwi and Yilayajambin, were born in approximately 1869 in the claim area.

66    Dr Choo located documentation pertaining to Ninghan Billy, Ninghan Freddie and Walter Ninghan. She said brothers Joe and Bill Lawson were the sons of Ninghan Billy and Annie Benjamin. Joe Lawson was recorded as working at Ninghan Station in 1914. Dr Choo stated that many members of the Lawson family are recorded as living and working in the claim area and west to Yalgoo (said by claimants to be traditional Badimia country) from then through to the 1970s.

67    In September 1904, Police Constable McGuiness of Fields Find Police Station reported that he travelled to Goodingnow Station where the lessee, Gus Clinch, informed him that dingoes had attacked his sheep, and an old “native” named “Binder” claimed his dogs had killed three dingoes.

68    Dr Choo located the records for Ninghan Station and said they appear to show that Badimia people were using the traditional camping grounds and waterholes at least until the 1940s. The manager of Ninghan Station, Mr LC MacPherson, claimed that “some of these natives have made a nuisance of themselves by passing through and camping on wells where stock are watering”. As well as the Lawson family working on Ninghan Station in the 1940s to the 1960s, the Bandy family also worked there in the 1960s. Leah Bell has leased Ninghan Station since 1993 and she lives there with her son, grandson and great grandchildren.

69    Dr Choo detailed the Clinch family’s association with Goodingnow Station. The Goodingnow Station lease was held by Gus Clinch from 1904 and the family held the lease until the 1950s. Goodingnow is a significant place for the Clinch family as it is on the northern shores of Lake Moore (usually a dry lake) and close to other sites to the west which are places of special significance to the family. The archival records indicate that Goodingnow Station had an Aboriginal orientation because of Gus Clinch’s connection with the Aboriginal people among whom he lived. Dr Choo considered the station functioned as a bridge between a traditional Aboriginal lifestyle and European ways.

70    In Dr Choo’s first report she also outlined the early history and establishment of the local towns including Mount Magnet and Paynes Find, and the now deserted and defunct Lennonville and Boogardie. Paynes Find was still a thriving town in the 1930s. After the white families left in the 1940s the Aboriginal families remained, including the Clinch, Fogarty, Hedlam and Little families.

71    In April 1947, there was a protest at Mount Magnet where 17 Aboriginal people were arrested for loitering. They were protesting against the prohibition that forced Aboriginal people to leave town when ordered to by the local police. As noted above, in 1949 Fred Martin complained about having to report to the police when he entered the town for supplies. In June 1949, Mrs Arthur Clinch wrote to the Commissioner of Native Affairs “protesting against the actions of the local Police Constable at Mount Magnet who was preventing Aboriginal people from entering the town area even in daylight hours, which was against the spirit of the declaration of prohibition”. In 1954, the declaration of prohibition in Mount Magnet was lifted and Aboriginal people could move around freely.

72    Dr Choo stated that the decline in employment of Aboriginal people on pastoral stations, after the introduction of award wages with the Federal Pastoral Award, meant that many Aboriginal workers drifted into the towns from the 1970s.

73    Dr Choo said another reason that Badimia families moved to the towns was to provide their children with an education. The Fogarty, Little, Clinch and Martin families, she said, were sending their children to school in Paynes Find from at least the late 1920s. As noted above, in the 1940s many of the children at the Mount Magnet school were from the Little family.

74    This evidence confirms that the claimants and their ancestors have a long association with the claim area, including with pastoral stations in earlier times.

Outline of Mr Robinson’s evidence

75    Mr Robinson, an experienced anthropologist who has been called in other native title proceedings by both claimants and the State, was called by the claimants. As well as Mr Robinson’s first report to which reference has been made above, the claimants also tendered the Applicants’ Expert Anthropological Supplementary Report, filed 24 August 2012 (Mr Robinson’s supplementary report). Mr Robinson did not personally undertake specific fieldwork for his reports but, before being engaged to write those reports, he had already spent considerable time researching the Badimia claim for the Yamatji Marlpa Aboriginal Corporation from 2006. This included having Mr Mark Chambers conduct documentary research and fieldwork under his supervision.

76    A first tranche of Aboriginal evidence was taken in the proceeding in 2010, which Mr Robinson did not attend. Mr Robinson did attend, however, the second tranche of Aboriginal evidence in 2012.

77    Mr Robinson stated that research has been carried out on the Badimia claim over a 15 year period. During that time, a number of field notes have been compiled relating to senior members of the Badimia group who have now passed away, and who were people who were born and raised on the pastoral stations within the claim area.

78    Four reports were prepared for mediation with the State. Mr Robinson read and analysed them and referred to them in his two reports. Those four reports are as follows:

    a connection report written by Dr Fleet in 2001;

    a further connection report by Dr Fleet written as supplementary to her earlier report in 2003;

    an anthropological report written by Dr Katie Glaskin in 2006; and

    a report providing supplementary information and commentary written jointly by Mr  Chambers and Mr Robinson in 2007.

79    Mr Robinson also read and took account of the earliest ethnographic accounts available relating to the claim area. In particular, he looked at the work of Bates and Tindale, and for his supplementary report he examined the work of Kingsford, Dunn, Peter Randolph and Stephen Davis.

80    Mr Robinson stated that, accepting the qualifications and limitations of the data, the ethnographic data that he examined provided material that could be compared with the contemporary accounts of the claimants, mostly derived from field data of Dr Fleet and Mr Chambers and the evidence of the Badimia witnesses themselves. Based on this comparison, Mr Robinson was able to offer the view that Badimia society, as he defined it, has continued to exist since sovereignty and has remained united in its acknowledgement and observance of Badimia laws and customs.

81    Mr Robinson concludes that, although European settlement affected Badimia people’s ability to maintain a fully independent economic life and disturbed their traditional local organisation, there is still a group of people who identify as Badimia and possess a distinctive Badimia culture.

82    Mr Robinson’s evidence supports the claimants’ case that the Badimia people possess native title rights and interests throughout the whole of the claim area.

83    Mr Robinson took issue with Dr Brunton’s key conclusions.

Outline of Dr Brunton’s evidence

84    Dr Brunton, an anthropologist who has given expert evidence for respondents in previous native title proceedings, was called by the State. As well as Dr Brunton’s first report, to which reference has been made above, the State tendered the State’s Expert Anthropological Report by Dr Ron Brunton filed 24 August 2012 (Dr Brunton’s supplementary report). Both reports of Dr Brunton were responsive to Mr Robinson’s two reports. Dr Brunton did not have the benefit of carrying out any fieldwork in the claim area and appears to have had little experience working with Aboriginal peoples in the wider region. Unlike Mr Robinson, Dr Brunton did not attend any of the hearings at which the Aboriginal witnesses gave their evidence.

85    Dr Brunton agreed with Mr Robinson that the “ethnographic and ethno historical literature dealing with the [claim] area is limited and patchy”. Dr Brunton stressed that this is particularly so for the century following European settlement in the Murchison region up until the 1970s. Dr Brunton considered that Mr Robinson’s use of the material produced by Bates, Davidson, Fink, Douglas, Kingsford and Dunn was inadequate.

86    Dr Brunton’s first report argued that the claimants’ case, that one group of Badimia people occupied the claim area at sovereignty, is incorrect. He considered there were four separate groups according to the research he undertook. In Dr Brunton’s opinion, the group that occupied the north were the Wajarri, or a closely related group, the Widi occupied the south-western portion of the claim area, and either the Kalamaia, or an unknown group, occupied a portion of the south-east. Hence, Aboriginal peoples identifying as Badimia, or a similar name, traditionally occupied only a part of the eastern portion of the claim area.

87    In relation to discontinuity, Dr Brunton said that Badimia society no longer exists in a form that has its traditional roots in the society that existed at sovereignty. Instead, there is a new society composed of people of mixed origin, some of whom may or may not have had biological links to the Badimia apical ancestors and others who came to occupy pastoral stations after sovereignty.

88    Dr Brunton did consider, however, there was evidence that places apical ancestors Frances Bynder, Polly Little and Eva Renie in the claim area at the time of first contact/settlement but thinks that it is more likely that they were not Badimia women.

89    In cross-examination, Dr Brunton did accept that various beliefs and practices described by witnesses who said they were Badimia, are pre-sovereignty in origin. He also accepted that there is today a normative system under which Badimia people possess rights and interests in land, but he queries whether that system has been continuous since sovereignty and also “the extent to which that normative system is actually widely held”.

Expert anthropologists’ conference

90    Pursuant to an order of the Court, Mr Robinson and Dr Brunton attended a conference in Perth before a Deputy District Registrar, who produced for the use of the Court and the parties a document identifying those matters and issues in respect of which they were in agreement or disagreement and where the experts’ opinions differed, the reasons for their disagreement (joint report of the experts).

91    The joint report of the experts filed 14 May 2012 was tendered into evidence. The issues that the experts were asked to discuss at the expert conference were whether:

(1)    at the time of sovereignty, the claim area was occupied by the Badimia people who acknowledged and observed a common body of laws and customs under which they possessed rights and interests throughout the whole of the claim area;

(2)    the rights and interests possessed by the Badimia people in the claim area at sovereignty were likely to have included the rights and interests which are listed in the Applicants’ Statement of Facts Issues and Contentions filed 28 September 2010 (claimants’ SFIC);

(3)    since the time of sovereignty and through until today, the Badimia people have continued to exist as a body of persons who are united in and by their acknowledgment and observance of a common body of laws and customs which show continuity with the laws and customs which were likely to have been acknowledged and observed by their ancestors at the time of sovereignty;

(4)    although there have over time been changes to the laws and customs of the Badimia people, the Badimia people continue to possess the rights and interests listed in the claimants’ SFIC under laws and customs which find their origin in the laws and customs that existed at the time of sovereignty;

(5)    the apical ancestors identified in the claimants’ SFIC are the apical ancestors of the Badimia claimants and whether the data supports the conclusion that they were present in the Badimia claim area at or about the time of first European settlement;

(6)    it would be reasonable to infer that those apical ancestors are the descendants of Badimia people who were present in the claim area at the time of sovereignty; and

(7)    the Badimia people have maintained a connection to the claim area.

92    As to issue (1), Mr Robinson and Dr Brunton expressed their agreement to the extent that Dr Brunton said it was possible that some “eastern” Badimia, as he described them, were within the claim area at the time of sovereignty.

93    Mr Robinson stated that the starting point for this inquiry must be the claimant evidence. Mr Robinson noted that the transcript and statements of evidence from the preservation or early evidence identified the claim area as Badimia country and no other Aboriginal people have claimed it. Mr Robinson believed Kingsford’s thesis and the recent work of Davis support the claimants’ assertion that the claim area is Badimia country, and the views of Fink, Douglas and Tindale also lend support to the claimants’ evidence. By contrast, he said the material of Bates is slight and confused. In Mr Robinson’s opinion, Bates’ data lacks certainty and does not displace the claimants’ and other anthropological evidence.

94    Dr Brunton took a different approach and considered that he could not primarily rely on claimant evidence to establish the situation at sovereignty nor early contact. Dr Brunton stated that the occupation of the claim area by the Badimia people is open to question. By his evidence, the Court understood him to suggest that data collected within the last 30 years, a century after first contact and considerably more time since sovereignty, is too removed from the contact period to be relied on. Dr Brunton noted that Kingsford and other researchers, apart from Davis, did not find that territory identified with Badimia people encompassed all the claim area.

95    Dr Brunton was of the opinion that the findings of Bates indicate there were two separate groups with different laws and customs who had names that sounded like Badimia, comprising a western group near the coast and an eastern group to the east of the claim area. This is consistent with information obtained by Davidson as well as some recent Aboriginal accounts.

96    As to issue (2), the experts agreed that the rights and interests possessed by the Aboriginal people in the claim area at sovereignty were likely to have included the rights and interests which are listed in the claimants’ SFIC.

97    As to issue (3), the expert anthropologists could not agree. Mr Robinson referred to the claimants’ evidence that supports the existence of a continuing body of people who observe traditional laws and customs, albeit in a modified form. He stated that he had not seen anything in the literature that contradicts this view in a material way.

98    Dr Brunton’s opinion regarding issue (3) closely relates to the opinion held regarding issue (1) above. It was Dr Brunton’s opinion that there was neither a single body of people who could be identified as Badimia at sovereignty nor a single society within the boundaries of the claim area. He stated that there are degrees of uncertainty. He considered that there appear to be some traditional laws and customs currently acknowledged by the Badimia claimants. Dr Brunton considered that the issue is whether they are central or peripheral traditional laws and customs. The laws and customs necessary to maintain connection have not continued to be observed by the claimants.

99    As to issue (4), the experts could not agree. Mr Robinson was of the opinion, based on his experience and research, that the suite of rights listed in the claimants’ SFIC is consistent with other Aboriginal groups’ rights and that the rights have been possessed on a continuing basis since sovereignty. Mr Robinson considered that fishing is the exception, although he was prepared to accept that it might be possible to establish this right should further information or evidence come to light.

100    Dr Brunton stated that the Badimia claimants are accessing resources, as opposed to exercising rights and interests that stem from the laws and customs of the different societies that occupied the claim area at the time of sovereignty. Dr Brunton came to this conclusion based on the presence of Aboriginal people from other parts of Western Australia in the claim area. The presence of non-Badimia people utilising resources derives from the post-European settlement period. He also stated that there is no continuity of observance of traditional laws and customs and the contemporary claimant activity is not substantially different from resource usage by non-Aboriginal people.

101    As to issue (5), the experts partly agreed. Mr Robinson’s overall view was that the apical ancestors, identified in his report, are the ancestors of the Badimia people who were present in the claim area at the time of settlement.

102    Dr Brunton indicated that Polly Little, Eva Renie and possibly Francis Bynder were likely to have been present in the claim area at the time of settlement but did not concede that they were necessarily Badimia people. Dr Brunton stated that he can link the individuals identified by Tindale to contemporary claimants, but Tindale had identified them as “Widi” not Badimia. Dr Brunton questioned whether the reference to Widi is equivalent to Badimia.

103    As to issue (6), the experts partly agreed. Mr Robinson was of the opinion that a core group of Badimia people have remained in occupation of parts of the claim area in and around Mount Magnet. He stated that the claimants maintain cultural connection whether as residents or not and continue the transmission of knowledge to younger generations. This is done through kinship, undertaking responsibilities and the perpetuation of belief in the Bimara and other spiritual beings, in addition to regular visits to the claim area and the undertaking of cultural responsibilities.

104    Dr Brunton was of the opinion that some claimants can trace a physical connection back to European settlement. He stated that Kingsford’s information suggests that people who failed to maintain a physical connection with country in the claim area lost their rights. On the other hand, Dr Brunton did not believe that cultural connection had been maintained, in a significant sense, to the necessary degree.

105    The evidence of the anthropologists helps to frame consideration of the key connection issues.

106    At the trial, the anthropologists gave oral evidence concurrently and further explained their respective opinions. This evidence is referred to below in the course of considering the key issues.

Was the claim area Badimia country at sovereignty?

107    The evidence of members of the claimants given at the trial was that the claim area with which they and their ancestors are and were associated is traditional Badimia country. Their evidence was based on their understanding that they, and their ancestors, are and were Badimia people, and had grown up, especially in the pastoral era, on traditional Badimia country. Many of the witnesses considered that traditional Badimia country extended well beyond the claim area.

108    In Mr Robinson’s first report, having regard to earlier ethnography and his assessment of its weight, Mr Robinson concluded that the findings of his preferred early ethnographers were “broadly consistent with the location of Badimia people in the native title claim area and beyond at the time of sovereignty”.

109    In Dr Brunton’s first report, Dr Brunton agreed there was limited early data and that this factor, together with post-sovereignty movement by Aboriginal peoples as a result of European settlement, made it difficult to identify with precision the names and identities of the Aboriginal group or groups associated with the claim area at sovereignty. Dr Brunton was firmly of the opinion, however, that the early data showed there were a number of different tribes or language groups associated with different parts of the claim area at sovereignty, and he was critical of Mr Robinson’s first report for “aggregating” ethnographic sources together, without taking inconsistencies into account, in aid of concluding that the claim area was associated at sovereignty with Badimia people alone.

110    The anthropologists further considered the extent of country issue in their supplementary reports and in their joint report of the experts, and then gave concurrent evidence about it (as noted above) and were cross-examined on the topic at the hearing.

Claimants’ primary submissions

111    The claimants note and contend in respect of the evidence as follows:

(1)    The evidence of the Aboriginal witnesses strongly supports Mr Robinson’s conclusion that the claim area includes, but is not limited to, the traditional lands of the Badimia people at sovereignty.

(2)    In his first report, Mr Robinson used the term “tribe” to describe traditional sociolinguistic groups even though this term is not in favour currently in anthropological writings. He said he used the term “tribe” as it is used by Badimia people to refer to themselves. He noted that the term “language group” is a substitute but the Badimia do not have a strong belief in a language-land relationship although they have a strong belief that land is associated with the Badimia as a social entity and that it is people of Badimia identity who should “speak” to country.

(3)    Mr Robinson stated that the Badimia people use the term “tribe” in the broadest sense, to identify themselves as a group of kin having rights over a defined tract of country.

(4)    In first report, Dr Brunton critically stated that, until the 1960s anthropologists generally failed to realise the importance of distinguishing between those people who held transmissible “proprietary rights” in tracts of land, and those who lived on those tracts and used their resources. In that context, Dr Brunton discussed the anthropological use of the terms estate, range, clan and band.

(5)    Mr Robinson stated in his first report that the boundaries of the Badimia claim area are conservatively drawn in relation to previously published and unpublished sources and the evidence of Badimia people themselves. The most complete research is to be found in the works by the linguist Dunn and the anthropologist Kingsford who both positioned the Badimia in an area of land that includes the claim area. There is support in the literature for Badimia territory being much larger than the Badimia claim area, particularly toward the west and further south over Lake Moore. The evidence of Badimia witnesses was also supported by the neighbouring witnesses.

(6)    In Mr Robinson’s view, Bates’ data provides general support for the location of Badimia people in and near the claim area in the period between 1900 and 1910 and he stated that from that data it may be inferred that the Badimia resided in the claim area at the time of sovereignty. Bates’ documentation is not precise enough, however, to say what the boundaries of Badimia country may have been in 1900.

(7)    Dr Brunton’s first report concluded, based on Bates and Tindale, that at the time of sovereignty “proprietary rights and interests” in the claim area were held by more than one tribe or language group including the Widi, Kalamaia and the Wajarri. In addition, Dr Brunton considered that people identified by Bates as either “Baadeemaia” (in the west) and “Badimaia” (in the east) were different groups. Dr Brunton considered that it is possible that the people referred to by Bates as “Badimaia” already occupied a portion of the claim area in the east at sovereignty. Therefore, the “Badimaia” represented a fourth group. Mr Robinson dealt with the Wajarri, Widi, and Kalamaia/Kakara/Gagara/unknown group in his supplementary report.

(8)    Dr Brunton considered that “the people of Mount Magnet and the area to its north were probably Wajarri or a closely related group”. Mr Robinson said there is no support for this opinion. Mr Robinson pointed to the draft of the dictionary currently being prepared for the Badimia language where it states that “Badimaya is closely related to Wajarri, the language of the Murchison and the speakers of Badimaya can generally understand much Wajarri”. Further, Wajarri man Lance Mongoo gave evidence about the boundaries between Wajarri and Badimia country.

(9)    Nhanhagardi elder, Clarence (Clarrie) Cameron, gave evidence about the country of the Wajarri and the Badimia and clearly described them as different areas. It is important to note that both Mr Mongoo and Mr Cameron have lived in Mount Magnet. They both learnt about Badimia country while living in the claim area before the commencement of the NTA.

(10)    Finally, as Dr Brunton conceded, the placement of the Wajarri in the northern portion of the claim area was not only inconsistent with the Aboriginal evidence, it was also inconsistent with some of the ethnography as, in particular, Tindale, Kingsford and Dunn all identified the northern portion of the claim area as Badimia country.

(11)    Mr Robinson concluded that there appears to be no support in Tindale’s own field data for an extension of Kalamaia territory so far west. Dr Brunton agreed with Mr Robinson that the genealogies taken by Tindale appear to relate to the area around Southern Cross and not the Lake Moore region. Mr Robinson could not find any support in the data collected by Tindale for the presence of the Kalamaia at Lake Moore or in the Paynes Find area.

(12)    Mr Robinson concluded that Tindale’s placement of the Kalamaia at Lake Moore is unsupported and that the sources he cited in fact support a presence there by the Badimia. In cross-examination, Dr Brunton agreed that Mr Robinson’s analysis of the Tindale data regarding the Kalamaia was convincing.

(13)    Mr Robinson believed that where Tindale had sound information from local informants his association of “tribes” with specific stretches of country is reasonably sound, but he also had a tendency, where material was absent or unreliable, to assign tribes to land on a speculative basis. The latter tendency is particularly noticeable in the Murchison where his data was weak.

(14)    Bates assigned much of the claim area to two groups: the “Wirdi Wonga” (Widi) in the west and the “Badimaia” (Badimia) in the east. There is, however, some significant evidence in Bates’ work to suggest that her Wirdi Wonga and Badimaia were one and the same people. On that basis, it is a reasonable inference to draw that in the first years of the 20th century the Badimia people occupied much of the claim area.

(15)    Tindale’s 1974 maps also placed the Widi group in an area in the south-west of the claim area. In the 1960s, when he was carrying out the research which led to his 1974 map, Tindale obtained information about the Badimia from three informants. Two of those informants, Crow Battle and William Hamlet, knew about the Badimia, but did not know a group called Widi. Tindale’s other informant, Maggie Bell, told Tindale that “Widi” country went north to Mount Magnet and that “we call ourselves Badimaya”. Dr Brunton in cross-examination agreed that the information given by Maggie Bell to Tindale included data that Paynes Find people speak “Badimaya” and that this was consistent with the data collected by Kingsford, Dunn and Stephen Davis in the 1980s. He accepted that a reasonable interpretation of what Maggie Bell said to Tindale is that Widi was simply another name for the Badimia. Indeed, it is the most likely interpretation of what she said. Dr Brunton also accepted that Tindale’s Wajarri informants considered the Badimia and the Widi to be the same people.

(16)    Mr Robinson did not consider that a group separate to the Badimia, called the Widi, existed in the past. This opinion is supported by the evidence of the Aboriginal witnesses. Mr Robinson stated that the claimants believe that the Widi claim is a construct for the purposes of native title.

(17)    Dr Brunton agreed that all the witnesses, including the Badimia neighbours, include the whole of the claim area within their accounts of Badimia territory. He also accepted that there is a considerable body of ethnography which pre-dates the NTA and which would support the conclusion that the Badimia and the Widi are one and the same people.

(18)    There are no overlapping claims over the claim area. It is submitted that the evidence of the neighbouring witnesses, Clarrie Cameron, Lance Mongoo, Darren Farmer and Kevan Davis as well as the lack of any overlapping claims is demonstrable evidence that the claim area is traditional Badimia country.

State’s submissions

112    On the question of the sovereignty boundaries of Badimia country, the State notes and submits as follows:

(1)    Bates produced written material and maps which identify the Aboriginal groups in and near the claim area as she recorded them in the period 1900-1912. Relevant parts of that material are in evidence.

(2)    Mr Robinson concluded simply that it “provides general support for the location of Badimia people in and near the claim area in the period 1900 to 1910”.

(3)    In his first report, Mr Robinson included Bates as one of the ethnographers upon whom he would place most weight. However, addressing the detailed account of Bates’ findings presented by Dr Brunton, Mr Robinson in his supplementary report expressed reservations about Bates’ work: that she did not spend much time in the area and that others (such as historian Bob Reece) have been critical of her. Most surprisingly, rather than maintaining the weight he had earlier placed on Bates, Mr Robinson now said while he did not dismiss all of Bates’ work he “would attach far less weight to Bates’ research” than Dr Brunton. The expressed reasons for this change of view were explored in cross-examination and were shown, with respect, to be insufficient to justify it.

(4)    Dr Brunton conducted a more thorough analysis of the Bates material and concluded that Bates ascribed the claim area to a number of different groups.

(5)    Relevantly, Bates identified a group she labelled “Baadeemaia” around Mingenew and Yandanooka. This group she identified as not using a male initiation rite and part of what she classified as the “Nor’west Nation”. They also lacked any section system. By contrast, Bates identified people she labelled “Badimaia” at Yuinmery, about 30 kilometres east of Sandstone. This group she identified as using a male initiation rite and part of what she classified as the “Central Areas Nation”. They had a four section system (Bates identified three different such systems operating in different parts of the claim area). One of Bates’ informants for the “Badimaia” was a “Badimaia” man called “Baueljara”, who (while at Rottnest Island) drew a map of his country, all of which was east of the claim area.

(6)    Bates’ map of the geographic distribution of tribes represents her written material in graphic form and is consistent with the written material in all relevant respects. It is an important piece of evidence in this proceeding.

(7)    The map shows the locations of the “Baadeemaia” and “Badimaia”, as well as other named groups between them and in other parts of the claim area. Importantly, as Dr Brunton identified, Bates’ map clearly places both the “Baadeemaia” and “Badimaia” outside the claim area. Mr Robinson did not accept that the triangular area on the map around Mingenew and Yandanooka was intended to depict the “Baadeemaia” location, saying it “simply means she’s found people at those locations who identify as Baadeemai”. This is despite the fact that Bates’ written material, compiled by Isobel White, ascribes the same area to that group (that is, the map and text are consistent). Mr Robinson is clearly in error in this respect.

(8)    The Bates material to which Mr Robinson was taken in cross-examination (and which was among the material relied upon by Dr Brunton in his reports) clearly indicates that the “Baadeemaia” and “Badimaia” were different groups in her view. For example, in his supplementary report Mr Robinson claimed that Dr Brunton was in error to state that the “Baadeemaia” were classified as part of Bates’ non-initiating rite “Nor-West Nation”, citing a sentence from White’s compilation of Bates’ work, which said that her “Nor’west Nation” included non-initiating tribes, and then opining that this implied that it therefore also included initiating tribes (and that the “Baadeemaia” would be one of those initiating tribes). However Mr Robinson unhelpfully omitted Bates’ next sentence, which made it clear that the tribes of the “Nor’west Nation” “come under one heading fundamentally in the absence of … [initiating]”. Other Bates notes, as well as the map which is exhibit 46, are also inconsistent with Mr Robinson’s opinion and confirm that it was Bates’ view that the “Baadeemaia” of the “Nor-West Nation” were a non-initiating tribe and, accordingly, different from the initiating “Badimaia” of the “Central Areas Nation”.

(9)    Contrary to Mr Robinson’s comments in his supplementary report, Dr Brunton did not seek to dismiss White’s volume or prefer Bates’ working notes over it on the basis that White’s volume was “an exception”. The “exception” identified by Dr Brunton merely referred to the spelling of “Badi-maia” in one place in that volume, not to the substance of the material (which supports Dr Brunton’s opinion).

(10)    Mr Robinson’s reluctance to accept that Bates identified the “Baadeemaia” as non-initiating is, with respect, most puzzling. His opinion in that respect is simply unsustainable.

(11)    Bates’ map ascribed the bulk of the claim area to “Wajjaree” and “Aggardee”, as well as “Wanmala” in the north-east and “Thowangoo” and “Batteega” in the south. The territories of different groups are marked with different colours and clear boundary lines. The “Wanmala” and “Wajjaree” boundaries, for example, can be seen converging at Mount Magnet. The map contains separate annotations for “Wadhari” north-east of Yalgoo and an “x” linked to “Wirdiwonga” south of Yalgoo.

(12)    Importantly, as Dr Brunton pointed out, Bates consistently in different documents attributed Mount Magnet and the vicinity as Wajarri country. She separately produced a map of areas of land between just north of Yalgoo and just west of Mount Magnet which she identified as sacred to the Wajarri people.

(13)    Bates also analysed the different section systems described by her informants and produced a regional map, reproduced in Dr Brunton’s first report. Consistent with her other maps, it depicts the claim area as being divided between groups with different section systems. Although it does not depict the “Badimaia” at Sandstone, it again depicts the “Baadeemaia” at Mingenew and Yandanooka, outside the claim area.

(14)    In summary, the Bates material is substantial and consistent in its description of tribal, local and social organisation in the claim area.

(15)    Working in the 1930s, Davidson associated the “Bardimaia” with only a small part of the claim area, namely Paynes Find and south of Yalgoo, and with Mullewa, Mingenew and Three Springs. He identified a different group he named “Kandari” as occupying the Mount Magnet and Sandstone areas in the north and north-east of the claim area. As Dr Brunton pointed out, Bates identified a pool called “Kundari” in the area described by Davidson. Davidson’s description of “Kandari” also corresponds with the area ascribed by Bates to Wajarri in her 1913 paper.

(16)    Mr Robinson did not appear to have considered Davidson’s data closely, but said it was “too slight to reach a conclusion as important as this”. He did not consider there was a separate Kandari group, apparently on the simple basis that the name “Kandari” did not figure in other ethnographic literature.

(17)    Dr Brunton considered the data much more closely. He also noted, for example, that Davidson had identified a large number of “Kandari” words and that these bore a strong similarity to Wajarri words and a dissimilarity to Badimia words.

(18)    Davidson’s vocabulary cards are exhibit 42. It is unambiguous on their face that he understood “Kandari” to be a distinct linguistic or tribal group with a distinct territory, equivalent to other language groups such as “Injibandi”, “Bailgu”, “Widi” and “Bardimaia”.

(19)    Tindale’s 1940 map divided the claim area roughly equally between four groups: “Kela:Mai”, “Wardal”, “Waula” and “Widi”. The informants for that map included two people asserted to be ancestors of members of the claim group: Jimmy Little and Wally Walter. Both Mr Robinson and Dr Brunton agreed that “Wardal” may have been a directional term, rather than a group name.

(20)    On his 1974 map, Tindale retained similar boundaries, but replaced “Wardal” with “Barimaia”.

(21)    At both points, 1940 and 1974, Tindale ascribed most of the south and east of the claim area to “Kela:Mai” and “Kelamaia” respectively.

(22)    Dr Brunton expressed some reservations about Tindale’s conclusions and Mr Robinson said he placed even less weight on Tindale than Dr Brunton did.

(23)    Working in the 1950s, Fink identified the name “Badimia” with only about the western third of the claim area. When asked about this in cross-examination, Mr Robinson appeared to agree, but ultimately said (inaccurately and unhelpfully, in the State’s respectful submission) “she didn’t have a view” about tribal locations.

(24)    Fink reported that the “Widi tribe”, which originally inhabited the area south-east of Mullewa, had died out by the time she did her work in the region.

(25)    Fink’s informants included Rita Thompson (Mrs Thompson) and Joe Benjamin, both identified by the claimants as Badimia ancestors.

(26)    Douglas conducted linguistic research in the Murchison region in the 1960s, including Mullewa and Mount Magnet. His informants included Arthur Fogarty, the grandfather of Darryl and Gloria Fogarty.

(27)    Douglas identified two distinct dialects of the Murchison language: “Patimay” and “Witimay (wirdimai)”, associating the former with the area north-east of Mingenew and the latter with the area north of Paynes Find.

(28)    Randolph conducted research into the Warrdagga site near Lake Moore in 1977. His informants were Henry Samuels, Joe Benjamin and Jim Clinch, who are all said by the claimants to be Badimia people. Randolph noted that “discussion with the informants has yielded new information on the boundary of the Barimaia group” and he indicated that the boundary ran from Mullewa and Morawa to Berkshire Valley near Moora and north to Coodardy Station and Yalgoo. This area is mostly outside the claim area to the west. Randolph noted that there had been a modern “south-west displacement” of the boundaries but that this was consistent with a general trend in the region.

(29)    Kingsford and Dunn were a husband and wife team who worked in the region in the 1980s. Both identified “Badimaya” with locations mainly in the south-western quadrant of the claim area. They produced maps which cover much of the claim area but exclude the eastern area, including Wydgee Station, for example. Mr Robinson conceded that his first report was incorrect in stating that their maps covered the whole claim area.

(30)    Mr Robinson did not refer to the recent 1993 work of Davis in his first report. Dr Brunton indicated that he was surprised by that omission because Davis’ map came closest to matching the claimants’ account of Badimia boundaries.

(31)    Dr Brunton pointed out that Davis’ work was of no real assistance because it had been very much discredited by anthropologists and, in any event, was not intended as a pre-sovereignty account. The State agrees Davis’ work lacks credibility and notes that it has not featured in other native title decisions.

(32)    Mr Robinson appeared to place belated weight on Davis’ work in his supplementary report and oral evidence. In his supplementary report, Mr Robinson related a private conversation he said he had with Davis which Mr Robinson said bolstered his view that Davis’ map should be given weight. Apparently Davis told Mr Robinson the map was intended to show sovereignty boundaries. This contradicts the general understanding held by Davis’ anthropological peers of his work, for example, Peter Sutton pointed out that Davis’ map was “clearly not intended to be an antiquarian map, one that shows Aboriginal tribes and their territories where they were calculated to be at the time of colonisation. According to the Davis map itself it ‘records the actual knowledge of senior traditional custodians at the time of investigation’”.

(33)    The debate about Davis’ credibility was probably not definitively resolved in this proceeding but is, in any event, moot due his work’s contemporary focus and/or origins.

(34)    The claimants’ case in relation to this issue suffers, with respect, from being based on an erroneous conflation of (on the one hand) the attitude of some of the Badimia witnesses to the individuals who are involved in the present day Widi Mob native title determination application (WAD 6193 of 1998) and (on the other hand) the ethnographic evidence about Badimia and Widi in earlier times.

(35)    There is no doubt that some witnesses, when asked about the Widi Mob native title determination application, expressed the view that the Widi Mob claimants were really, or may potentially be, Badimia people. That may or may not be true. Others said that they had never heard of Widi until recently.

(36)    The State does not have any reason to dispute in this proceeding the apparent view of the witnesses that the Widi Mob native title determination application is spurious or that its members are really Badimia or not Widi. In fact, the State holds no view about whether or not there are today any people who may legitimately identify as Widi people.

(37)    However, that has no bearing at all on whether or not Widi and Badimia were, in earlier times, distinct groups.

(38)    The ethnographic evidence is entirely consistent with the proposition that, at sovereignty, there was a distinct language group identified as “Widi” or “Wirdi Wonga” or another homonym and that this group was distinct from Badimia. That was the view of the early researchers, Bates and Davidson. That was what Tindale recorded on both his 1940 and 1974 maps. It was what the linguist Douglas identified in the 1960s. Even Kingsford identified a distinct Widi territory, contrary to Mr Robinson’s evidence in his first report.

(39)    Most relevantly, Fink reported in 1958 in relation to the area south-east of Mullewa that “the original inhabitants (of the Widi tribe) have died out and the natives now to be found in the area have moved there in recent times from places further east”.

(40)    Although the claimants’ submissions seek to imply the contrary, Dr Brunton very clearly maintained in cross-examination his view that the ethnographic evidence, particularly of Bates, supported the inference that Widi and Badimia were distinct groups at sovereignty.

(41)    In the State’s submission, all of that evidence is consistent with the proposition that there was at sovereignty a distinct Widi group and that that group has over the course of the history of European settlement declined, so that as time progressed it became harder to discern and today it is non-existent. That is the clear pattern discernible in the ethnographic evidence (including either of the two competing interpretations of what Maggie Bell may have said to Tindale in the late 1960s).

(42)    In the face of that evidence, it would be an error for the Court to find, on the basis of contemporary opinion among Aboriginal people, that Badimia and Widi have always meant the same group. The claimants’ apparent case that, in any historical account, Widi can simply be read as Badimia has no firm basis in the evidence. It is an assumption, based on the contemporary composition of the Widi Mob native title determination application, contradicted by the ethnography.

(43)    Mr Robinson ultimately accepted that his opinion that the whole claim area was traditionally Badimia country involved aggregating all of the various ethnographic accounts together. If one did that, Mr Robinson’s somewhat modest conclusion was that the aggregated account “provides support” for that opinion.

(44)    In the State’s submission, such an approach is obviously flawed. One cannot create a legitimate single account of the territory of a traditional group by piecing together in a mosaic fashion parts of a series of accounts, each of which is inconsistent with the intended whole. In Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150 at [405]-[408], Sackville J criticised the same “cumulative approach” being taken to the question of the content of traditional law and custom in that case. The State submits that the Court must reach the same conclusion by analogy here.

(45)    In the State’s submission it is clear that there is no pre-native title era account which corresponds even remotely with the claimants’ assertion that the whole of the claim area was occupied by Badimia people at sovereignty. Instead, every account ascribes the claim area to three or four different groups. And every account places Badimia or similar groups either completely outside the claim area or in only part of it.

(46)    It is not sufficient, with respect, for the claimants to merely submit in effect that all of the 20th century ethnographers were wrong and may be disregarded because the present day Aboriginal witnesses believe all of the claim area was Badimia country. That is the approach repeatedly urged upon the Court in the claimants’ submissions. Mr Robinson also approached the issue by giving primary consideration to the contemporary witness statements and transcript. Sackville J in Jango at [460] to [462] identified why that approach is unhelpful to the Court.

(47)    In any event, as has been noted above, Mr Robinson’s approach to the question has resulted in him being unable to express a definitive opinion on the issue.

(48)    Dr Brunton pointed out that earlier ethnographic information, obtained from people living much closer in time to the assertion of sovereignty, was more likely to capture the pre-sovereignty position. In his opinion, one cannot primarily rely on claimant evidence to establish the position at sovereignty or early contact. In the State’s submission, Dr Brunton’s approach mirrors, as well as being logically incontrovertible, the correct legal approach following Yorta Yorta and Jango.

(49)    The correctness of Dr Brunton’s approach is fortified by the unanimous expert evidence that there was a high degree of mobility of Aboriginal people in and out of, and within, the claim area from the very earliest days of European settlement and by the historical evidence going to the same question. All of that evidence demonstrates the very high likelihood of changes in boundaries since sovereignty.

(50)    The combination of the ethnographic and historical evidence raises a clear inference of change since sovereignty. This means that it is impermissible for the Court to infer from Aboriginal evidence that the present day claimants’ views about contemporary Badimia “society” are traditional. The relevant paragraphs of the claimants’ submissions must be rejected.

Claimants’ reply submissions

113    In reply, the claimants note and submit as follows:

(1)    The State submits that the body of ethnographic and other historical evidence before the Court “compels” the Court to find that at sovereignty, the claim area was occupied by a number of different groups only one of which was Badimia. This issue has been canvassed extensively in the expert anthropological evidence and the claimants refer the Court to the claimants’ submissions. Mr Robinson dealt with this issue at length in his supplementary report in particular, and in his oral evidence:

I’m still of the view that the - the weight of evidence, from the documentary record, from the ethnographic record, and from the witnesses, points to the whole of the claim area being within a wider Badimia territory, and that no other group had rights and interests there. And, I mean, I can - I’m in a position where we can go through each one of these sources in turn and - and analyse them, which I’ve done in my reports. But I’m not persuaded by Dr Brunton’s arguments on any of these topics that any group other than the Badimia were in occupation of the claim area - the claim area at sovereignty.

(2)    The State submits that Mr Robinson ultimately accepted that his opinion that the claim area was traditionally Badimia country involved “aggregating” all of the various ethnographic accounts together. The State contends that if one did that, Mr Robinson’s “somewhat modest conclusion” was that the aggregated account “provides support” for that opinion. The State cites Mr Robinson’s cross-examination in support of that submission and submits that such an approach is “obviously flawed”.

(3)    At the transcript references to which the State refers, Mr Robinson’s evidence was that if you look at all of the ethnographic sources as a whole, they all generally locate Badimia people “within the area that I would expect them to be at”. This led counsel for the State to suggest to Mr Robinson that what he meant “effectively” was “if you aggregate them together”, “you can add up to something which looks like your account”. Mr Robinson’s response was to agree with that proposition only “in a sense”.

(4)    Mr Robinson went on to explain that there were difficulties with each of the ethnographic sources but they are broadly consistent with, and certainly not “widely inconsistent with”, the conclusion which he draws from the claimants’ evidence about the extent of traditional Badimia country:

MR RANSON: I was simply trying to clarify the point I was making so that we could deal with the one similarity I’m dealing with which is that they all ascribe the area to different groups.

MR ROBINSON: No, well that’s the point I’m trying to make is that they don’t ascribe areas to groups at all. They’re very rough approximations; when Fink puts the word Badimia on a typed map, I don’t understand her to be drawing any boundaries around a cultural group called Badimia. She’s from the location and standpoint of the Wajarri who she was dealing with. You’re saying in this general direction are Badimia people. But I don’t think she intends that to be a representation of a traditional boundary. In that context, each one of these authorities you’ve led me to are drawing lines on maps or putting words on maps for a variety of reasons. I don’t think you can compare all these sources in the same way, except to say what I’ve said which is that they are broadly consistent with the conclusion I would draw from the claimant evidence, that this is the extent of traditional Badimia country. They’re not widely inconsistent with that.

(5)    What Mr Robinson is saying is that he has considered the claimants’ oral accounts and all of the relevant ethnography and, taken collectively, the ethnography is broadly consistent with the claimants’ accounts. That is not a “flawed” approach to determining the identity of the pre-sovereignty society.

Consideration

114    The claimants’ direct evidence generally supports what is alleged in the claimants’ SFIC and Minute of Proposed Amended Native Title Determination Claimant Application (Form 1) filed 1 August 2001 (claimants’ application or Form 1), namely, that the claim area is wholly within traditional Badimia country. The claimants’ evidence is also supported by the evidence of Aboriginal witnesses – namely Clarrie Cameron, a Nhanhagardi elder, and Lance Mongoo, a Wajarri man – who identify as belonging to Aboriginal language groups which consider themselves traditional neighbours of the Badimia.

115    The evidence given by the claimants and those other Aboriginal witnesses was primarily based on what they understood from what their now deceased elders had told them.

116    Claimant evidence on key issues must be given due weight in a proceeding such as this. Where, however, other evidence, including ethnographic data, challenges such evidence, all the evidence must be carefully weighed before a final verdict is reached on each issue, which will often only be arrived at by drawing inferences and on the balance of probabilities.

117    There is no issue here that the Aboriginal witnesses did not give their evidence truthfully or that they did not genuinely believe that they and their ancestors were Badimia people and that the claim area has always been Badimia country. A question arises whether it should be inferred, in light of European ethnographic data and other evidence, that their understanding about those things has been affected by post-sovereignty events, and whether the claimants have satisfied the Court that the claim area is traditional Badimia country.

118    The first question, however, is what this ethnographic data reveals.

119    In dealing with the ethnographic data, the Court, at least to some extent, is required to view it through a lens misted over by time. In that regard, the expert anthropological evidence is calculated to assist the Court to see the data more clearly.

120    Considering first the ethnographic research conducted soon after the Second World War, there is something of a gap between what the claimants now say and what Fink noted in the 1950s. The Court chooses to start here in the 1950s, as Fink’s works begin to reveal what researchers were observing in more modern times, a hundred years or so after the first contact between Aboriginal and European peoples. Armed with these observations, the Court considers the earlier data may more usefully be regarded.

121    Fink did her PhD research in the 1950s. She was based in Wajarri country in Mullewa. Her work was not focussed on the Badimia but they figure, at least incidentally, in her work. She was concerned to study the effects of assimilation policies on Aboriginal people. She met “town dwellers”, “fringe dwellers” and other Aboriginal people still on pastoral stations.

122    Fink produced two maps with her work. It is accepted all round that these maps do not purport to indicate “tribal” boundaries. On one map the Badimia are placed just south of Mullewa, and on the second, slightly east of there and south of Yalgoo. Both those locations are to the west of and outside the claim area.

123    Fink’s written notes also talk about country of the Badimia being south-east of the Mullewa-Cue railway line, although she did not define the eastern bounds other than to note:

Padimai/Yalgoo – Magnet – Paynes Find – Nyngan

Some pages later there is the statement:

Language Magnet to Cue bagumaia – people Bugalgora[?] all died out. From Magnet to Sandstone Ngalubalinggu called tribe Malia

124    On the face of those maps and research notes, Fink, in the 1950s, did not obviously associate the eastern parts of the claim area with Badimia country.

125    Thus, if one were to rely only on Fink’s maps as providing some reasonable indication of the extent of traditional Badimia country, then Badimia would be associated with some, perhaps a little more than the western third, but not all of the claim area as at sovereignty.

126    There are a number of assumptions or observations to be made about Fink’s work. The first, which has already been made, is that she was not focussed on an ethnography of the Badimia people and their “tribal” boundaries in her work. Secondly, the provenance of her Badimia data is not clear. Thirdly, a point that Mr Robinson made in cross-examination, Fink did not necessarily express any such view about the extent of Badimia country as is now attributed to her. That is to say, in the course of this native title hearing, it has been the anthropologists and counsel for the parties who have sought to ascribe views to earlier ethnographers, such as Fink, when that may or may not be appropriate. In other words, one may need to be cautious about attaching too much significance to data that was not collected with the express purpose of resolving an issue such as that now at hand.

127    In the circumstances, the Court considers Fink’s notes and the statements recorded by her may be said to be what they are. They are useful but not determinative of traditional country boundary issues. They raise questions about whether traditional Badimia country extended into the (roughly) eastern two-thirds of the claim area, including around Mount Magnet. They correlate with the Aboriginal witnesses’ direct evidence to the extent that they show that ethnographic research in the 1950s associated Badimia with a part of the claim area.