FEDERAL COURT OF AUSTRALIA

Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899

ORDERS

THE COURT ORDERS THAT:

1.    The application by Andrew Starkey and Joylene Thomas on behalf of the Kokatha People is dismissed.

2.    The application by Michael Anderson, Anthony Clark, Mark McKenzie Snr, Deidre McKenzie, Beverly Patterson and Angelina Stuart on behalf of the Adnyamathanha People is dismissed.

3.    The application by Eric Paige, Lorraine Briscoe, Harry Dare, Jeanne Miller and Linda Dare on behalf of the Barngarla People is dismissed.

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

REASONS FOR JUDGMENT

MANSFIELD J:

INTRODUCTION

1    The Court has before it three overlapping applications for a determination of native title rights and interests pursuant to ss 13 and 61 of the Native Title Act 1993 (Cth) (the NTA), over the lands and waters of Lake Torrens in the mid-north of South Australia. The area claimed by each claim group in its application is identical. Hence, the overlap is complete.

2    The claim area is distinct. It concerns Australia’s second largest salt lake – Lake Torrens – and an island in that lake – Andamooka Island – which protrudes into the western side of the lake accessible by a causeway from the west. Lake Torrens does not routinely fill but on occasions (e.g. in 1931) it holds substantial fresh water for months which attracts an abundance of wildfowl and other fauna. That is the last recorded occasion when it held substantial water. Otherwise, and for the present hearings, it is a flat white salt lake with some flat areas running into adjacent lands and some rocky outcrops as the entry into the adjacent lands.

3    The surface of the claim area is accepted by all parties to be unsuited to long-term occupation, save for Andamooka Island. During the hearing a map of Lake Torrens entitled “Lake Torrens Overlap trial locations to be mentioned in evidence” was produced by the State (Exhibit S1). It is annexure A to these reasons. Another map, provided by the State by consent as an aide to the hearing and entitled “Lake Torrens Overlap Proceeding, Marc Thomas, Native Title Section, CSO, 19 August 2015” which depicts most of South Australia, including the claim area and the names of various places in the area surrounding Lake Torrens and referred to in the ethnography is annexure B.

4    The claim area is bounded by lands and waters in respect of which native title rights and interests have been determined or found to exist. To the west and contiguous with the western shore of Lake Torrens, the claim area abuts the area recognised as the native title lands of the Kokatha Uwankara People: Starkey v State of South Australia [2014] FCA 924 (Kokatha Part A). To the east and contiguous with the eastern shore of Lake Torrens, the claim area abuts the area recognised as the native title lands of the Adnyamathanha People: Adnyamathanha No 1 Native Title Claim Group v South Australia (No 2) [2009] FCA 359 (Adnyamathanha No 1). Separating the Kokatha Part A determination area from the Adnyamathanha No 1 determination area at the northern tip of Lake Torrens is a narrow strip of land (approximately 200 m wide at the shoreline) determined to be the southern part of the native title lands of the Arabana people: Doss v State of South Australia [2012] FCA 519. Separating the Kokatha Part A determination area from the Adnyamathanha No 1 determination area at the south-eastern part of Lake Torrens is approximately 6 km of shoreline which forms the northern part of lands determined to be the native title lands of the Barngarla People: Croft v State of South Australia (2016) 325 ALR 213; [2015] FCA 9 (Barngarla); Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Barngarla No 2).

5    The present applications for a determination of native title are:

(1)    Kokatha Native Title Claim (Part B), SAD 90 of 2009 (the Kokatha Application, made by the First Applicant); this claim is the remaining area of the application which supported the Kokatha Part A determination. The Part A area was heard and determined separately because it did not give rise to the confronting overlapping claims now being considered;

(2)    Adnyamathanha No. 5 Native Title Claim, SAD 277 of 2012 (the Adnyamathanha Application, made by the Second Applicant); and

(3)    Barngarla (Lake Torrens) Native Title Claim, SAD 175 of 2015 (the Barngarla Application, made by the Third Applicant).

6    As the parties did in the course of the hearing, the claim group in the Kokatha Application will be referred to as the Kokatha People; the claim group in the Adnyamathanha Application will be called the Adnyamathanha People (in part used interchangeably with the description of the Kuyani People, as the earlier ethnography refers to them in that way as the Adnyamathanha People whose “local” area was more to the western part of the other Adnyamathanha Lands); and the claim group in the Barngarla Application will be called the Barngarla People.

7    One consequence of the determinations made on areas surrounding Lake Torrens is that there are significant challenges to the relevance to certain of the anthropological evidence which was adduced, as it was said in part to be premised upon parts inconsistent with one or other of those determinations, in particular in Kokatha Part A. It is appropriate, therefore, to record in a little more detail the nature of those determinations.

8    The determination in Kokatha Part A recognised the Kokatha People as the holders of native title over that claim area, running extensively west from the western borders of Lake Torrens, subject to those parts of the claim area where other acts have extinguished native title, either wholly or in part (including, by agreement the areas the subject of the ODA agreement registered as an ILUA under the NTA, and as explained in [32]-[37] later in these reasons). The recognised and extensive native title rights recognised are non-exclusive, because of the other interests in the claim area as recorded. The other interests do not include interests of any Adnyamathanha or Barngarla People except as recognised in the ODA agreement and as noted the area of the ODA agreement is excluded from the claim area. It is well to the west of Lake Torrens. The prescribed body corporate under s 57(2) of the NTA is the Kokatha Aboriginal Corporation.

9    The determination in Adnyamathanha No 1 recognised the Adnyamathanha People as the holders of native title over three claim areas, including relevantly the areas immediately to the east of Lake Torrens. Again, the rights recognised are extensive, and subject to the areas where other acts have extinguished native title either wholly or partially. The rights are non-exclusive other than four areas where, by operation of s 47A of the NTA, the extinguishment is to be disregarded. These areas of exclusive native title rights are not directly relevant to the present issues. There are no other terms of that determination which are said to inform the resolution of the present issues.

10    The determination in Barngarla No 2 recognised the Barngarla People as the holders of native title over that claim area, including relevantly the areas immediately to the south of Lake Torrens. Again, the rights are extensive but by reason of other acts those rights have been extinguished either wholly or partially, so the rights are relevantly to the present issues non-exclusive. There are no other terms of that determination which would inform the resolution of the present issues.

11    Obviously, at sovereignty, the native title rights and interests so recognised would not have been extinguished either in whole or in part by the acts which have occurred subsequent to sovereignty.

12    While the named applicants who comprise each of the claimant groups are no longer identical to the applicants who were authorised by the claimant groups and in whose favour the determinations were made in Kokatha Part A, Adnyamathanha No 1 and Barngarla No 2, they identify as being part of the same societies as those recognised as the holders of native title rights and interests under the NTA in Kokatha Part A, Adnyamathanha No 1 and Barngarla, respectively. Nothing presently turns on those differences. However, for reasons which are addressed below, the precise composition of the three competing claim groups provokes certain observations about the extent of certain common ancestry.

13    It is also accepted that the Kokatha People (in Kokatha Part A referred to as the Kokatha Uwankara People) are an eastern group as part of the wider Western Desert society and that the Adnyamathanha People and the Barngarla People are part of the wider Lakes Group society.

14    Each of the First, Second and Third Applicants relies on findings made in Kokatha Part A, Adnyamathanha No 1 and Barngarla, respectively, and seeks the Court to adopt certain findings in those proceedings pursuant to s 86(1)(c) of the NTA. The Second Applicant also seeks to rely on findings in a related proceeding: Coulthard v State of South Australia [2014] FCA 124 (Coulthard). Those findings, and the extent to which they are relevant to the present claims, are outlined and addressed in further detail below.

15    On 10 December 2014 (as reviewed on 2 February 2015), orders were made for the Kokatha Application and the Adnyamathanha Application to be heard together, and programming orders were also made. On 8 July 2015, that order was extended to include the Barngarla Application after that belated application. It is observed that the Barngarla Application was made many years after the other two applications, and of course therefore was not made by any response to the notification of either of those claims under s 66 of the NTA. Those orders meant that all three claimant applications over Lake Torrens would be heard together, as appropriate having regard to s 67(1) of the NTA.

16    The only other active parties in these claims were the State of South Australia (the State) and two related mining companies, Kelaray Pty Ltd (Kelaray) and Straits Exploration (Australia) Pty Ltd (Straits), although as discussed below, on 22 March 2016 Straits notified the Court that it wished to cease to be a party to the proceedings and Kelaray made only limited written closing submissions on 29 February 2016, after participating in the evidentiary hearing.

HISTORY OF CLAIMS OVER LAKE TORRENS

17    Like many native title determination applications, the claims which have been made over Lake Torrens, and including Andamooka Island, have a protracted history.

18    In 1998, the three applicant groups (somewhat differently constituted, and described in one case as the Kuyani, whose descendants now call themselves Adnyamathanha), each made applications for a determination of native title which was geographically more extensive but included Lake Torrens in the lands and waters claimed:

(1)    Kokatha Native Title Claim – SAD 6013 of 1998 (the prior Kokatha claim);

(2)    Barngarla Native Title Claim – SAD 6011 of 1998 (the prior Barngarla claim); and

(3)    Kuyani People Native Title Claim – SAD 6004 of 1998 (the prior Kuyani claim).

19    The background and resolution of those original claims is described in some detail in Barngarla at [10] – [31]. That history, as recorded in Barngarla, is set out below to the extent that it affects the Lake Torrens area.

20    On 8 December 2003, the Court referred the prior Barngarla claim to the National Native Title Tribunal (NNTT) for mediation. Two broad main areas of overlap were the focus of its attention. The first area centred around the Lake Torrens area and concerned (at least initially) the prior Kokatha claim and the prior Kuyani claim. The second area centred around the Flinders Ranges National Park to the east of Lake Torrens and concerned two claims of the Adnyamathanha People (Adnyamathanha No 1 and Adnyamathanha No 2), as well as a native title claim made by the Nukunu People.

21    The NNTT sought to facilitate the State and the Aboriginal Legal Rights Movement (ALRM) (now South Australian Native Title Services or ‘SANTS’), as the relevant native title representative body for South Australia under the NTA, in attempting to resolve native title claims through a process known as the “State-Wide ILUA Process” (ILUA refers to the concept in the NTA of an Indigenous Land Use Agreement). The prior Kokatha claim, the prior Kuyani claim and the prior Barngarla claim (as well as the Adnyamathanha claims referred to) became a part of that process, and specifically a part of a strategy for resolution of overlapping native title claims called the “Central Western South Australia Mediation Strategy”. That Strategy, as far as those claims were concerned, was aimed at resolving the two Barngarla-Kokatha-Kuyani-Adnyamathanha overlaps referred to. It was conducted principally at Spear Creek, and is frequently referred to eponymously as the Spear Creek Mediation. The Spear Creek Mediation sought to address a number of other overlapping claims under the NTA at the same time.

1.    The Barngarla-Kokatha-Kuyani Overlap and the Arabana Overlap

22    On 30 June 2004, the NNTT recommended that its mediation cease to the extent that it concerned the overlap of the Barngarla-Kokatha-Kuyani claims (the first area of overlap referred to at [20]), and that that part of the claim be listed for hearing. The Spear Creek Mediation, and follow-up meetings, had been unsuccessful in resolving the groups’ differences. The State opposed that recommendation, saying that the more appropriate course was to persevere with the “State-Wide ILUA process”. On 22 July 2004, the Court adopted the NNTT recommendation and ordered that that overlap be removed from mediation.

23    However, on 13 October 2004, the Court ordered that the Kokatha-Barngarla overlap be referred back to mediation by the NNTT. That order was made because it had emerged that an in-principle agreement to share the area of the overlap might be able to be finalised.

24    On 27 January 2005, the prior Kuyani claim was struck out by Finn J: McKenzie v South Australia (2005) 214 ALR 214. A second Kuyani Native Title Claim briefly emerged in early 2006, only to be discontinued several months later: Kokatha People v State of South Australia [2007] FCA 1057 at [9] per Finn J.

25    By this time, the Kokatha-Barngarla overlap had been affected by a third claim by the Arabana People (SAD 6025 of 1998). On 15 April 2005, the Court referred the Arabana People Native Title Claim to mediation by the NNTT, limited to that part of the claim which overlapped with the prior Kokatha and prior Barngarla claims. The consequent negotiations were not successful.

26    On 8 September 2005, the Court ordered that that part of the prior Barngarla claim that overlapped with the prior Kokatha and Arabana People claim was to be dealt with in a separate “overlap proceeding”. At about that time, the NNTT reported that there was a clear willingness on the part of the Barngarla, Kokatha and Arabana claimants to resolve the overlaps.

27    On 1 July 2007, a resolution of the overlaps between the prior Barngarla claim and Arabana People Native Title Claim was reached. The prior Barngarla claim would withdraw the claim over the overlapping land area, as it did. The prior Barngarla claim is the claim which is the subject of the Barngarla No 2 determination. The Arabana People were also to withdraw the claim over the overlapping area in the northern part of Lake Torrens, as it did. The Arabana People claim led to the determination referred to above in their favour, abutting Lake Torrens for a short distance at its northern extreme.

2.    The Adnyamathanha-Barngarla Overlap

28    Meanwhile, the NNTT reported at the same time that progress was being made on the resolution of the Adnyamathanha-Barngarla overlap.

29    On 9 February 2006, the Court ordered that the ongoing NNTT mediation should focus on resolving overlaps between the prior Barngarla claim and the Adnyamathanha Peoples No 1 and No 2 Native Title Claims (SAD 6001 and 6002 of 1998 respectively). Negotiations between those groups had been on hold at the NNTT for several years, as the NNTT, ALRM and the State prioritised, inter alia, the Kokatha-Barngarla-Arabana Peoples overlap negotiations.

30    Through 2006 and 2007, the NNTT mediation of the prior Barngarla claim overlaps with the two Adnyamathanha Peoples Native Title Claims, now known collectively as the “Adnyamathanha Peoples Proceeding” continued. An agreement was reached in around December 2007, resulting in recognition of the Adnyamathanha over a substantial area in and around the Flinders Ranges and to the east of Lake Torrens: Adnyamathanha No 1.

31    In consequence of the above agreements with both the Adnyamathanha People and the Arabana Peoples, on 30 May 2008, a further amended application was filed by the Barngarla People reducing the prior Barngarla claim area to bring the claim area’s north-eastern boundary to the south-eastern border of Lake Torrens. Findings were made in favour of the Barngarla in respect of land and waters adjacent to the south-eastern part of Lake Torrens and further to the south in 2015 in Barngarla and effect was given to those findings, having regard to extinguishment in Barngarla No 2.

3.    The current proceedings

32    A further agreement was reached on 14 December 2008 at a meeting at the Standpipe Hotel, Port Augusta, between the Barngarla, Kokatha and Kuyani peoples to pursue jointly a claim over Lake Torrens and the area to its west. That claim, lodged as the Kokatha Uwankara Native Title Claim on 18 June 2009, is the original claimant application filed by the First Applicant in the present matter, that is the Kokatha Application but including both Parts A and B. It is convenient to call that application, including both Parts A and B, the Kokatha Uwankara Claim, to distinguish it from that claim as it later proceeded over those separate parts. On 5 April 2013, the Court made orders dividing the Kokatha claim into Part A and Part B. Part A consisted of the area west of Lake Torrens whilst Part B comprised the whole of Lake Torrens including Andamooka Island. As noted, Part A was resolved by the consent determination in Kokatha Part A. Part B was then renamed the Lake Torrens Overlap Proceedings, and in these reasons is referred to as to the Kokatha Application.

33    Those persons originally authorised to make the claim (then over Parts A and B) were Andrew Starkey, Lorraine Dare, Mark McKenzie and Joylene Thomas. Following the filing of the First Applicant’s amended claimant application the named applicants were Andrew Starkey and Joylene Thomas only, as reflected in Kokatha Part A. The First Applicant submits that Lorraine Dare is also a Barngarla person, that Mark McKenzie is also an Adnyamathanha Person and that Joylene Thomas and Andrew Starkey are Kokatha people. Further, it is said that Adnyamathanha claim group members Mick McKenzie, Mark McKenzie and Tony Clarke, and Barngarla claim group members Eric Paige, Beverly Patterson, Linda Dare and Patricia Dare were all present at the meeting to support the amended application and that Lee Brady (who was not present but who is an Adnyamathanha person) also wrote to Mr Linde at SANTS confirming his agreement to be part of the Kokatha Uwankara claim. Then, as now, the description of the claim group included Mark McKenzie, Tony Clark and Lee Brady who identify as Kuyani or Adnyamathanha people because of their “spiritual connection to and responsibility for specific sites in the determination area”, although it does not include their descendants.

34    On 8 November 2012, Mark McKenzie Senior, Anthony Clark, Angeline Stuart, Michael Anderson, Deidre McKenzie and Beverly Patterson on behalf of the Adnyamathanha People filed the present Adnyamathanha Application by the Second Applicant over Lake Torrens and Andamooka Island. They were also joined as respondents on behalf of the Adnyamathanha People to the Kokatha Uwankara claim. That was notwithstanding that the Kokatha Uwankara claim group formulation included Mark McKenzie, Tony Clark and Lee Brady, three individuals who identified as, or also identified as, Adnyamathanha and/or Kuyani: see affidavit of N Llewellyn-Jones of 25 August 2014.

35    In 2014, the State was exploring the resolution of Part A of the Kokatha Uwankara claim by consent. It was not then proposed that Mark McKenzie, Lee Brady, or Tony Clark should form part of the claimant group despite being included in the description of claim group in the Kokatha Uwankara claim. Ultimately, the named Adnyamathanha withdrew as respondents to Part A of that claim enabling the consent determination by Kokatha Part A to proceed.

36    The circumstances in which that occurred are set out in the affidavit of N Llewelyn-Jones of 25 August 2014. It records that the Adnyamathanha People had indicated that they have “traditional rights and interests” in that consent determination area, that is the area to the west of Lake Torrens, that they had provided material to the Federal Court of Australia on 1 July 2013 in support of that assertion, and that the claim group formulation for the Kokatha Uwankara claim included three Adnyamathanha/Kuyani individuals who were included into the Kokatha claim to represent those interests.

37    That affidavit further records that, the Kuyani Yartah Association, which comprises Adnyamathanha Persons, and one of the Kokatha associations, are party to a commercial agreement with BHP Billiton Pty Ltd regarding Olympic Dam (the ODA). The ODA was negotiated through 2004 to 2008; the signing ceremony was on 18 February 2008; and it became fully operational on 16 December 2009. The ODA Trust became operational in early 2010. Accordingly, the affidavit records that a commercial agreement, binding on members and/or associations of both parties, already existed subject to certain “implementation” phases. The last of the implementation phases was to be the completion of an ILUA which, it was said, needed to be finalised, in order properly to protect the Adnyamathanha/Kuyani interests under the ODA. Accordingly, it records that the Adnyamathanha and Kokatha had finalised an agreement which had the effect of guaranteeing the Kuyani interests under the ODA. In consideration of this, the Adnyamathanha had agreed to facilitate the Kokatha consent determination in the Part A area to the west of Lake Torrens.

38    As indicated, the named Adnyamathanha persons then withdrew as respondents, and Part A of the Kokatha Uwankara claim was resolved by the consent determination in Kokatha Part A.

39    Orders were then made on 10 December 2014 (as reviewed 2 February 2015) for Part B of the Kokatha Uwankara Application, as now described in these reasons the Kokatha Application, which had yet to be resolved and the Adnyamathanha Application to be heard together.

40    On 11 June 2015, a new claimant application was filed by the Barngarla (Lake Torrens) Native Title Claim, now described as the Barngarla Application. Three of the apical ancestors in the Barngarla Application, Andrew Davis, Percy Davis and Stanley Davis, are also named as apical ancestors in the Kokatha Application. A further order was made on 8 July 2015 that the applicant in the Barngarla Application be the Third Applicant in these proceedings. Those orders meant that all three claimant applications over Lake Torrens would be heard together pursuant to s 67(1) of the NTA.

41    The purpose of setting out this detailed history is not simply to describe the detailed history of the overlapping native title claims which are presently being considered in this matter. It is to record the numerous negotiation and mediation processes which each of the Applicants and the State have engaged in, and the attempts made by each of the parties, to resolve their overlapping claims through an ILUA process, a consent determination, or the formulation of a single claim over Lake Torrens.

42    The consequence is that the Court presently has before it three claimant applications which entirely overlap geographically.

43    Historically, in terms of the description of the native title holders in the three claimant applications (see also “Interrelated applicant groups” below) and, at least in some contemporary cases, that overlap is also in part cultural or genealogical. At this stage, it is also appropriate to record that, due to the description of the native title holders in each of the three claimant applications and the genealogical overlap between the claimant groups, if a finding were to be made in favour one of the applicant groups, that might not preclude the allocation intra-mural of particular responsibility for, or interest in, a particular area or areas of the determination area to a member of the claim group, even though that person is also a member of one or other or both of the other claim groups.

44    The three claimant applications, each as formulated, presents a claim for a determination being made in favour of one or other of the three Applicants to the exclusion of the others. That was the case presented by each of the Applicants in opening, and subject to certain admissions on the evidence and joint submissions made by the Second and Third Applicants in their oral, and supplementary, closing submissions.

45    At the outset the Court observed that the further the individual cases of the Applicants were advanced, the more there would be evidence directed also to showing that another Applicant, or Applicant group, did not have the native title rights which were asserted. There cannot be three sets of exclusive native title rights held by different groups. It also pointed out that it could not be assumed that the Court could find that there are joint or co-existing rights held by some differently defined group or society or community over Lake Torrens. That is not to suggest that the three claimant applications, or the manner in which the evidence evolved from the Applicants, was anything other than appropriate in the circumstances. It was to note the tension between the cases as presented, and the difficulty with respect to a future “joint proposal” such as the alternative proposition now made by the Second and Third Applicants (and at least in theory by the First Applicant) that the Court might exercise its power to find in favour of more than one Applicant, or some differently defined applicant, in respect of the same area. There is no reason why, depending on the evidence, the Court could not find in favour of one or more of the Applicants over a part or parts of Lake Torrens, but it is not evident that it could create a fourth group, not one of the Applicant groups, and determine that that different group held native title over Lake Torrens or parts of it.

46    The significance of the various alternative outcomes raised by the parties in final submissions is addressed further in the section of those reasons under the heading “The Law”.

47    As one counsel figuratively observed, three-handed poker got the name cut-throat poker.

THE HEARING

48    Certain aspects of the lay and expert evidence concerned knowledge of secret men’s matters including of particular ceremonies and stories. It is described as secret because (as the parties accept) certain evidence about the ceremonies and stories of initiated Aboriginal men are not to be disclosed to women. Orders were made in respect of gender restricted evidence led by the First and Second Applicants on various occasions during the hearing, varied as appropriate, under s 17(4) and s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth) and s 82(2) of the NTA, restricting those persons who may hear, or view the transcript of, that evidence.

49    I note that the cultural concerns which led to the orders restricting those persons who may hear or view the transcript evidence were generally agreed to be appropriate, and were accommodated by counsel without opposition. That is despite the substantial restricted evidence which was proposed to be, and was, led, and the associated and corresponding complexity of the hearing, including the decision by parties to brief additional counsel to accommodate those cultural concerns. The parties are to be commended for the sensible and sensitive way in which those concerns were recognised.

50    Orders were also made in respect of the extent to which senior counsel for the Third Applicant should be entitled to hear and to cross-examine gender restricted evidence given by one witness for the First Applicant, because that counsel is himself an Aboriginal man and is not of the Kokatha claim group or of the wider Western Desert cultural group: Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195. That, too, was accommodated by the engagement of other senior counsel for parts of the hearing.

51    Evidence was led and argument heard over 21 hearing days on the existence of native title in the claim area and on extinguishment between October 2015 and March 2016.

52    It was common ground as between the parties, that no expert proposed to give evidence directly to attack any finding of fact which is fundamental to or underlies any existing determination and that the focus of the experts’ reports was on who, if anyone, occupies or is entitled to native title rights over Lake Torrens. That is, as the Court expressed it in the course of the hearing, the parties accepted the primary findings of fact necessary to support the three determinations on the areas of land surrounding Lake Torrens (as outlined in Kokatha Part A, Adnyamathanha No 1 and Barngarla) and, of course, the three determinations in Kokatha Part A, Adnyamathanha No 1, and Barngarla No 2 handed down on 23 June 2016.

53    Nonetheless, as briefly noted above, there were a number of objections to, and submissions which were made in respect of, both the oral and written evidence given by the experts.

54    Firstly, in respect of the expert evidence and despite the common ground about what was proposed, it was said that certain parts of the evidence were in fact an attack on findings in existing determinations. The evidence the subject of these objections was admitted into evidence to inform the extent to which there are native title rights in any one of the Applicants over Lake Torrens, and for any other legitimate purpose. This was done on the basis that the evidence would not be used to undermine an existing determination and that, in the event that it had no other relevant use, there would be no weight accorded to it. That ruling specified that it was for the party seeking to rely on that evidence to make appropriate submissions on its legitimate use, with the objecting party to have a right of reply. Those matters were then addressed further in the final submissions.

55    It was also said that certain parts of the expert reports are argumentative, hard to understand or not based on a proper foundation. In those circumstances, the evidence was received simply as a contention, again on the basis that final submissions would be made on its appropriate use, and with the objecting party accorded the right to respond. That is not an uncommon course to adopt, as it avoids a very extensive and time consuming analysis of, and rulings on, very long experts reports and then the steering of refined and complex courses in the evidence progress (as experience has shown) with great waste of time and little or no real benefit. The parties sensibly accepted that it was not necessary to go down that path.

56    Those issues are considered in more detail under the heading ‘Expert evidence’ below.

57    Similar submissions were also made in respect of certain lay evidence, to the extent that it was said to contradict the findings of the Court in Kokatha No 1, Adnyamathanha No 1 and Barngarla. That evidence was also received on the basis that no weight would be given to evidence that was inconsistent with those determinations.

58    There were 25 lay witnesses called by the Applicants over the hearing days from 26 October 2015 to 17 December 2015. A number of witnesses gave evidence “on country” on sites on Andamooka Island, or around the eastern border of Lake Torrens. Most witnesses gave evidence in Port Augusta or, in some cases, in Adelaide.

59    There were 11 lay witnesses called by the First Applicant. They were: Andrew Starkey, Robert Starkey, Michael Starkey, Glen Wingfield, Paul Strangways, Janice Wingfield, Sonya Gaston, Rebecca Bear Wingfield, Peter Mungkari, Kevin Dingaman and Professor Jon Willis. Professor Willis, the expert anthropologist engaged by the First Applicant, gave “lay” evidence separately from, and prior to, his evidence as an expert witness in accordance with orders made on 9 November 2015: Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195. That is because Willis, although not of indigenous extraction, is a person who has had a very long association with the Kokatha claim group and more generally people from the Western Desert country and is an initiated Pitjantjatjara Yankunytjatjara man. He was called as a “lay” witness in respect of both his actual experience of, and knowledge of, Western Desert cultural practices, along with other members of the Kokatha claim group, and as an expert anthropologist. It is not any disrespect that I shall recognise the professional status of each of the expert witnesses by using their respective professional titles when they are first referred to, but thereafter I will simply use the surname without repetition of the qualification.

60    During the course of evidence-in-chief, the First Applicant also tendered and relied on a series of restricted, and non-restricted photo plates, as well as a DVD entitled “Lake Torrens Overlap Proceeding 1st Applicant’s Footage Eucolo Creek”. It also tendered two extracts from a book by Dr D Tunbridge, “Artuni the Seven Sisters” and ‘The Woman who Murdered her Daughter’ extracted at page 16 and pages 128-129, respectively.

61    On country evidence, gender restricted in its entirety, was given by Andrew Starkey, Robert Starkey, Michael Starkey, Glen Wingfield, Paul Strangways, Peter Mungkari and Kevin Dingaman at Andamooka Island. The First Applicant also sought to rely on transcript of evidence given by Michael Starkey in proceedings in the Environmental Resources and Development Court of South Australia (the ERD Court) on 25 November 2010 in Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants (ERD 231 of 2010). In addition the First Applicant relied on a letter signed by Lee Brady, a lay witness called by the Second Applicant, to SANTS dated 28 November 2008 and a copy of exhibit S1, as marked by Lee Brady. Genealogies prepared by SANTS for the then named Kokatha Uwankara Native Title Claim (that is, to cover Parts A and B of the claim) dated February 2009 were also tendered.

62    There were 7 lay witnesses called by the Second Applicant. They were Lee Brady, Regina McKenzie, Michael McKenzie, Heather Stuart, Ken McKenzie, Jacqueline McKenzie and Beverly Patterson. On country evidence was given by Lee Brady, Regina McKenzie and Michael McKenzie at Andamooka Island; Regina McKenzie and Heather Stuart at Hookina Creek and Ken McKenzie, Jacqueline McKenzie and Beverly Patterson at Nilpena. Gender restricted evidence was given by Michael McKenzie, Lee Brady and briefly by Ken McKenzie. Genealogies for the Second Applicant dated 1985 and 2008 were also tendered.

63    During the course of evidence-in-chief, the Second Applicant also tendered and relied on a series of restricted, and non-restricted photos of parts of the claim area as identified by the lay witnesses.

64    There were 7 lay witnesses called by the Third Applicant. They were Eric Paige, Graham Richards, Amanda Richards, Rosalie Richards, Patricia Dare, Linda Dare and Harry Dare. Only one witness gave evidence as a non-Aboriginal person: Rosalie Richards. On country evidence was given by Eric Page at Andamooka Island. During the course of evidence-in-chief, the Third Applicant also tendered and relied on a series of restricted photos, those photographs marked as ‘restricted to men only’ were tendered on an unrestricted basis. There was no other gender restricted evidence led by the Third Applicant.

65    Apart from the oral evidence of the lay witnesses at the hearing, the Third Applicant also relied on transcripts of evidence given by Eric Paige on 4 December 2012, Rosalie Richards on 7 December 2012, Amanda Richards on 4 December 2012, Linda Dare on 28 November 2012 and 10 December 2012 together with the DVD of Linda Dare performing the seven sisters dance at Roxby Downs (received during the giving of evidence as recorded in that transcript) and Harold Charles (Harry) Dare on 3 December 2012, adduced in the Barngarla matter. The Third Applicant also relied on the affidavit of Linda Dare of 5 May 1999 and Leroy Richards (deceased) of 26 May 1999, as well as a witness statement of Eileen Wingfield, mother of Janice Wingfield, Sonya Gaston and Rebecca Bear Wingfield, of 4 November 2010 tendered in Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants in the ERD Court. In addition, the Third Applicant relied on a copy of exhibit S1 as marked by Graham Richards during his evidence-in-chief.

66    No lay witnesses were called by any party other than the Applicants.

67    The Court received the report of the conference of experts of 7 July 2015, and the report of the conference of experts of 10 and 11 September 2015. It received expert anthropological reports into evidence and heard oral evidence from the anthropologists Willis (called by the First Applicant), Mr Bob Ellis (called by the Second Applicant), Dr Deane Fergie, Dr Rod Lucas, Dr Paul Monaghan (called by the Third Applicant), Professor Peter Sutton (called by the State) and Dr Sullivan (called by Kelaray and Straits). Those reports were the report of Willis of 7 October 2015 (Willis Report), the report of Ellis of 27 September 2015, as revised on 15 December 2015 (Ellis Report) and the further report of Ellis of 15 December 2015 (Ellis Supplementary Report), the report of Fergie Lucas and Monaghan of 6 October 2015 (Fergie Lucas & Monaghan Report), in addition to a copy of exhibit S1, as marked by Fergie during the concurrent expert evidence, the report of Professor Sutton of 20 October 2015 (Sutton Report) and the supplementary report of Sutton of 15 December 2015 (Sutton Supplementary Report) and the report of Sullivan dated 16 October 2015 (Sullivan Report).

68    The Third Applicant accepted that it would not be appropriate for evidence on the same matter to be repeated by each of Fergie Lucas and Monaghan to bolster its case, and the oral evidence proceeded on the basis that those witnesses would each give specific and complementary oral evidence with respect to the various issues to be addressed, informed by which of those three experts was the more appropriate to address the particular issue.

69    The Sullivan Report was received on 17 December 2015. However, on 22 March 2016 the Court was notified that Sullivan would be unavailable to complete the concurrent anthropological oral evidence. That was related to the notification that Kelaray had terminated its retainer for legal representation for commercial reasons, and the application of counsel for Straits and Kelaray for leave not to appear further in the hearing. That application was granted and as noted above, Straits subsequently ceased to be a party. Mr Owler, a director of Kelaray was given leave to appear for Kelaray. Consequently on 29 February 2016 when the hearing of the concurrent anthropological evidence resumed, in the absence of Sullivan and in circumstances where no other party sought to compel his attendance but each wished to test his evidence by questions to be directed to him, the Court ruled that no weight would be placed on his report of 16 October 2015, or his previous evidence-in-chief, except to understand the purposes of the particular cross-examination which might otherwise be admissible. Kelaray accepted that that ruling was appropriate, also because there were often objections to the evidence of Sullivan which could no longer be usefully explored in his absence. It is not necessary to address that further in the circumstances.

70    The Court also received expert reports into evidence and heard oral evidence from the expert archaeologists Professor Neale Draper and Dr Greg Carver. Draper was called by the First Applicant and Carver was called by the Second Applicant. The First Applicant relied upon the expert archaeological reports of Draper of 7 September 2015 (Draper Report). The Second Applicant relied on the report of Carver of 5 October 2015 (Carver Report), in addition to a three page document with copied images of petroglyphs marked Plates X, Y and I prepared by Carver. The Court also received the Agreed Statement of Expert Issues: Archaeologists of 17 December 2015.

71    The Court also received the expert historical report of Mr Tom Gara of 19 October 2015 (Gara Report), tendered by the State. The report was received without any request for cross-examination.

72    The parties also tendered a number of expert historical, anthropological and archaeological reports which form the underlying ethnographic literature of the claim area. The earlier of these reports were first published in the late 1800s and then progressively through to the 1980s, 1990s and 2000s when a number of reports were prepared in relation to mining projects, or potential mining projects, and other work clearances and surveys.

73    The First Applicant tendered and relied on:

(1)    Kingsmill and Gason 1886, ‘No. 60. Beltana’, p 118 – 119,

(2)    Helms 1896, “Anthropology by Richard Helms 1896” pp 277-278 (pp 21-22 of the pdf document)

(3)    Tindale 1938-39, “Harvard and Adelaide Universities Anthropological Expedition Australia 1938 – 1939 Journal and notes by Norman B. Tindale”, P 36 Sketch map

(4)    Tindale 1940, “Results of the Harvard and Adelaide Universities of Anthropological Expedition Australia 1938 – 1939 Distribution of the Australian Aboriginal Tribes: A Field Survey”

(5)    Elkin, A.P. 1879-1939, “Aboriginal Men of High Degree,” Australian Publishing Co. [1945], Map, “Aboriginal Tribes of Australia”

(6)    Tindale 1974, “Aboriginal Tribes of Australia” p 213 (p 3 of the pdf document)

(7)    Austin Ellis and Hercus 1976, “‘Fruit of the Eyes’ Semantic Diffusion in the Lakes Languages of South Australia”, Map on p 67

(8)    Elkin 1976, Oceania 46(3) “R.H. Mathews: His Contribution to Aboriginal Studies” pp 217-219

(9)    Hagen and Martin 1983, “Report on Kokatha Interests in Sites and Land in Vicinity of the Olympic Dam Mining Project” Appendices 1, 4, 5, 6 and 7, Appendix 1 Women’s survey (p 114 of the pdf document

(10)    Mythological Tracks in the vicinity of the Olympic Dam Mining Venture – August 1983, Rod Hagen

(11)    Aboriginal Land Rights in Port Augusta – October 1983, J.M Jacobs (H51) pp 261, 262 (A3 map), 357, and 358 (reproduced into two A3 maps)

(12)    Report on Kokatha Interests in Sites and Land in the Vicinity of the Olympic Dam Mining Project – September 1983, R. Hagen and S. Martin. (E41) (pp 37 -39)

(13)    Fitzpatrick and Gara 1984, “Anthropological Survey of Extractive Mineral Leases on Birthday, Four Mile and Nantilla Creeks Near Port Augusta – A Report for the Kokatha People’s Committee” p 5 of the report (p 7 of the pdf document)

(14)    Fitzpatrick & Gara, “Anthropological Survey of extractive mineral leases on Birthday, Four Mile and Nantilla Creeks near Port Augusta – a report for the Kokatha People’s Committee” – October 1984

(15)    Berndt 1985, “Natural History of Eyre Peninsula” Chapter 10: Traditional Aborigines

(16)    Jacobs 1986, “Understanding the Limitations and Cultural Implications of Aboriginal Tribal Boundary Maps”, p 3, p 12 Map 3 (Field work 1981)

(17)    A. P. Elkin 1977, 1994, “Aboriginal Men of High Degree Initiation and Sorcery in the World’s Oldest Tradition”, Foreword page xv

(18)    Aziz Willis 1996, “Lake Torrens South: Work Area Clearance”

(19)    Connection Report – Myrtle Springs Station, Northern Flinders Ranges, South Australia – September 2000, B. Ellis. (E33) pp 2-3

(20)    Hugo 2003, “National Native Title Tribunal research report, North Lakes Region, South Australia” by Dr David Hugo October 2003

(21)    “Proposal for the Conduct of a Survey within EL 94/03 (now EL 3195) by Representatives of the Kuyani (SC 00/3) Native Title Claimant Group” dated 5 May 2004

(22)    Fitzpatrick and Wood 2005, “Work Area Clearance Andamooka Island Lake Torrens EL 3195 A Report to Straits Exploration (Australia) Pty Ltd and the Barngarla Native Title Claimants”

(23)    Fitzpatrick and Wood 2006, “Work Area Clearance Andamooka Island Lake Torrens EL 3195 A Report to Straits Exploration (Australia) Pty Ltd and the Barngarla Native Title Claimants”

(24)    De Gand October 2006, “Report on an Ethnographic Desktop Assessment and Consultation with Members of the Andamooka Land Council Aboriginal Corporation Regarding a Proposed Drilling Project at Lake Torrens in South Australia for Straits Exploration (Australia) Pty Ltd”, p 9

(25)    Draper, Morley and Damhuis December 2007 (ACHM), “Aboriginal Cultural heritage Survey of Potential Drill Sites and Access Tracks within the Straits Exploration (Australia) Pty Ltd Exploration Licence Area (EL3195), Andamooka Island, SA – Kokatha Report”

(26)    Draper, Sutherland and Williams May 2007 (ACHM), “Kokatha Native Title Claim (SAD 6013/1998) Expert Anthropology Report 2nd Draft, May 2007” (Vol 2 pdf p 25)

(27)    Document entitled “A report to Straits Exploration (Australia) Pty Ltd and the Barngarla Native Title Claimants” dated November 2007

(28)    Adnyamathanha Native Title Report Volume 2 – January 2008, Bob Ellis p 89

(29)    Letter signed by Mr L Brady to SA Native Title Services dated 28 November 2008

(30)    Kokatha Uwankara Authorisation Meeting, Attendance Record, 14 December 2008

(31)    Draper 2010 (ACHM), “Aboriginal Cultural heritage Significance of Lake Torrens, South Australia. Anthropological Report prepared for the Kokatha Uwankara Native Title Claim Group (SAD 90/2009)”

74    The Second Applicant tendered and relied on:

(1)    Kokatha People’s Committee Field Report #1 concerning a field survey undertake 8-10 October 1981 by D A Vachon

(2)    Southern Land Council Field Report – Roxby Downs Olympic Dam Site – November 12-13 1981 by D A Vachon

(3)    Hagen (1983) Aboriginal Sites of Significance - Interim Report to the Kokatha People’s Committee

(4)    Gara, T (1989) The Kokatha Heritage Survey

(5)    Fax letter from Andamooka Land Council to Straits Exploration (Australia) Pty Ltd dated 14 Sep 2007 and unsigned digital original of same

(6)    Pring, A & McLean, G (2014) Aboriginal People’s Points of View about Mining (draft) pp 1-3 only

(7)    BHP Billiton – draft EIS for Olympic Dam expansion – Appendix N8 “Ecological assessment of groundwater dependent ecosystems”

75    In relation to the history of the claims over Lake Torrens, the First Applicant also tendered two mediation progress reports by the NNTT dated 2 November 2007 and 12 December 2007, as well as two supplementary mediation progress reports, dated 9 December 2008 and 15 December 2008. An affidavit of Philip Teitzel, affirmed 13 July 2009, was also tendered. To an extent that material has been addressed in the ‘History of Claims over Lake Torrens’ section of these reasons.

76    Finally, the First Applicant tendered a Statement of Agreed Facts filed on 15 April 2015 (as between the First and Second Applicants and the State).

77    The Third Applicant tendered and relied on:

(1)    Research performed on 1850s historical sources identified in Gara (2015) comprising a 7 page table, and a map to which that document relates.

78    The State tendered and relied on:

(1)    Gara (1988) Report on fieldwork with the Kokatha People’s Committee at Coorlay Lagoon and Whisky Swamp; and

(2)    Attachment 8 of the report of 8 October 1985 authored by the Roxby Management Services, containing a map on p 5 depicting Kokatha country.

79    It also tendered an affidavit of William Watt sworn on 30 October 2015 and filed on 16 November 2016, including the attached exhibits. That affidavit related to the issues of extinguishment. Its contents were uncontentious.

80    Finally, oral submissions were made by each of the Applicants and the State over two days, 30 and 31 March 2016. The oral submissions were supplemented by written submissions by each of those parties, as well as by Kelaray, BHP Billiton Olympic Dam Corporation Pty Ltd (BHP) and Mr D Greenfield, the holder of two Pastoral Leases over the area of Andamooka Island.

81    Kelaray made written submissions which were largely confined to dealing with aspects of the claim of the First Applicant. They address the proper use and weight to be accorded to the determination in Kokatha Part A, the Statement of Agreed Facts (as agreed between the First and Second Applicant and the State) and the anthropological evidence (specifically the evidence either relied on and otherwise considered by the First Applicant in its submissions). Kelaray also made brief submissions in respect of the possibility of shared country.

82    The only other persons to make written submissions were BHP and Greenfield. Both Greenfield and BHP made separate, brief written submissions in respect of extinguishment, outlining that their respective interests were validly granted and are, themselves, valid. Otherwise, they adopted the submissions of the State of South Australia, in the case of BHP in relation to the effect of the grant of exploration tenements on native title, and in the case of Greenfield, in relation to the effect of the grant of the pastoral leases over Andamooka Island.

83    For completeness, I also record that OZ Minerals, OZM Carrapateena Pty Ltd and OZ Exploration Pty Ltd filed a notice submitting to any order of the Court in this proceeding on 18 March 2016.

84    All that material has been considered in the course of, and for the purposes of, this judgment although there may be no specific references to it where the issue raised has been addressed in much the same manner by one of the active parties during the hearing.

THE LAW

85    As has been observed in a number of decisions, the starting point for consideration of an application for a native title determination is the NTA: Western Australia v Ward (2002) 213 CLR 1 at [16] and [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ (Ward HC); Yorta Yorta v Victoria (2002) 214 CLR 422 at [32] per Gleeson CJ, Gummow and Hayne JJ (Yorta Yorta); and Commonwealth v Yarmirr (2001) 208 CLR 1 at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Although ss 223(1)(a) and (b) of the NTA are in large part based on Brennan J’s judgment in Mabo v Queensland (No 2) (1992) 175 CLR 1, it is the provisions of the NTA which establish the criteria for determining an application for a native title determination.

86    Section 225 of the NTA defines what is determined in an application for a native title determination.

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:

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

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

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

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

(5)    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.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

87    Section 223 of the NTA defines the expressions “native title” and “native title rights and interests”. Relevantly, s 223(1) provides:

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

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

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

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

88    For a determination of native title to succeed, all the elements in s 223(1) of the NTA must be “given effect”: Yorta Yorta at [33].

89    With respect to s 223(1), in Ward HC, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed at [17]:

…Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly the rights and interests consist “in relation to land or waters”. Thirdly, the rights and interests must have three characteristics: (a) they are rights and interests which are “possessed under the traditional laws acknowledged, and the traditional customs observed”, by the relevant peoples; (b) by those traditional laws and customs, the peoples “have a connection with” the land or waters in question; and (c) the rights and interests must be “recognised by the common law of Australia”.

90    In Barngarla, I sought to give effect to those requirements, expressed at [640] in the following terms.

The task of this Court is to ascertain under which (if any) laws acknowledged and customs observed by the present-day [Aboriginal] society do the claimants have rights and interests in the claimed land. Once ascertained, the Court must ask whether those laws and customs can be said to be “traditional laws” or “traditional customs”. The question of whether a particular aspect of [Aboriginal] society as it existed at sovereignty has been lost or retained is relevant only if that question helps determine whether the laws and customs of the present-day [Aboriginal] society can be said to be “traditional”. And the concept of traditional is one which should accommodate adaptation of those laws and customs with the evolution of the traditional [Aboriginal] society, if that is found to have occurred.

91    In making a determination of native title, the plurality in the High Court in Yorta Yorta recognised the importance of traditional rights and interests being established at or before sovereignty at [43]-[44]:

…It is important to recognise that the rights and interests concerned originate in a normative system, and to recognise some consequences that follow from the Crown's assertion of sovereignty. Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.

That is not to deny that the new legal order recognised then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be "significant adaptations". But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that 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.

92    The native title claimants have both an evidentiary and an ultimate onus of proof, subject to the issue of extinguishment: Western Australia v Ward (2000) 99 FCR 316; Daniel v Western Australia (2004) 208 ALR 51 (Daniel); Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 at [339].

93    As discussed in Yorta Yorta by the plurality at [80]:

It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.

94    Nonetheless, where there are gaps in the historical timeline to the date of the application for a determination of native title, the Court may draw inferences in favour of the claimants in respect of substantial maintenance of connection from sovereignty where there is a proper foundation to do so. That requires the Court to be satisfied that the claimants currently have a connection with the claim area through traditional laws and customs observed and acknowledged, and the evidence available provides some support for the inference of the presence of that connection in the past (traceable by various means such as observations at and after the time of first contact, ancestors, marriage, migration and incorporation and even tribal disputes and wars): De Rose v South Australia [2002] FCA 1342 at [570]. As O’Loughlin J there observed:

To place any higher burden of proof on the claimants, who have a wholly oral tradition that reaches back reliably no further than three or (in a few cases) four generations, would be manifestly oppressive.

95    Where evidence of Aboriginal presence at sovereignty is unavailable (as is commonly the case), such an inference is more readily drawn where there is a preponderance and weight of available evidence and in the absence of contradictory evidence: see e.g. Yarmirr v Northern Territory (1998) 82 FCR 533. Where it is appropriate to do so, weight should be accorded not only to physical use of the claim area but also to evidence of spiritual connection: e.g. see Griffiths v Northern Territory (2007) 165 FCR 391; [2007] FCAFC 178 (French, Branson and Sundberg JJ) at [127] where spiritual sanctions visited upon unauthorised entry supported a finding of exclusive possession.

96    On occasions, it is appropriate that the Court is assisted in by s 86(1)(c) of the NTA, which provides the Court with a discretionary power to adopt “any recommendation, finding, decision or judgment” from other proceedings as there specified, subject to s 82(1), that is subject to the rules of evidence, except to the extent that the Court otherwise orders. That is an aspect referred to in more detail later in these reasons.

97    Nonetheless, the Court must be satisfied that, the traditional rights and interests (once established) relate to the particular area under consideration. In Bennell v Western Australia (2006) 153 FCR 120, the trial judge considered and found in favour of the Noongar People, on the hearing of the separate question of whether native title existed in relation to land and waters in a portion of the claim area, that is the Perth metropolitan area. On appeal, the Full Court in Bodney v Bennell (2008) 167 FCR 84 held that it was not open to the trial judge to find the necessary connection in relation to the Perth metropolitan area from evidence concerning the much wider claim area and where there was no real evidence of connection in relation to the Perth metropolitan area. Relevantly, the Full Court found at [178]-[179] and [187].

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

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

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

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

…

If his Honour was to find that native title existed in relation to land and waters of the Perth Metropolitan Area, it had to be proved that the laws and customs that related to that area had continued to be acknowledged and observed without substantial interruption and that connection likewise had been substantially maintained. Those inquiries necessitated a consideration and evaluation of the evidence (historical and contemporary) as it related to that area from sovereignty to the present: cf the approach to these questions by Mansfield J in Risk TJ 240 ALR 74 in relation to the Darwin Area.

98    That decision has particular resonance for the present issues. The necessary connection must be shown in relation to Lake Torrens, or parts of it, notwithstanding its harsh physical features. And, moreover, it will not readily be inferred on any of these three Applications from the existence of adjoining native title rights at sovereignty that such connection, and therefore such rights, extended naturally into Lake Torrens because that inference (without more) would apply equally to the Kokatha People from the west and to the Adnyamathanha (or Kuyani) People from the east, although perhaps not so strongly to the Barngarla People from the south, except to a limited extent into the southern part of Lake Torrens.

99    There is some authority for the proposition that, while the Court may only make one determination of native title per area, where different groups are found to hold native title, subsidiary determinations within the principal determination can be made: Daniel v Western Australia (2004) 208 ALR 51 (Daniel) at [4]-[7]. I shall shortly further consider that decision.

100    There are further provisions of the NTA which also have a particular significance to the present issues.

101    Where there are overlapping claims of native title, the NTA provides for applications over the same area to be dealt with in the same proceedings with only one determination of native title per area. Relevantly, ss 67 and 68 provide:

67    Overlapping native title determination applications

(1)    If 3 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications over the same area, they are dealt with in the same proceedings.

Splitting of application area

(2)    Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.

68    Only one determination of native title per area

(1)    If there is an approved determination of native title (the first determination) in relation to a particular area, the Federal Court must not:

(2)    conduct any proceeding relating to an application for another determination of native title; or

(3)    make any other determination of native title;

(4)    in relation to that area or to an area wholly within that area, except in the case of:

(5)    an application as mentioned in subsection 13(1) to revoke or vary the first determination; or

(6)    a review or appeal of the first determination.

Note:    Paragraph 13(1)(a) providers that no native title determination application can be made in relation to an area for which there is already an approved determination of native title.

102    The identification of potentially competing claimants is facilitated by s 66 which requires the Native Title Registrar to give notice containing details of the application to persons or bodies specified in s 66(3)(a), including any person which may be affected by a determination in relation to the application: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67 (Badimia) at [61]. As noted earlier, despite that notification of the Kokatha Application and the Adnyamathanha Application, the Barngarla Application was only made belatedly. There are no doubt good reasons for that.

103    It is clear enough that, consistently with those provisions, the Court on the present hearing could conclude that one or other of the Applicants has established native title over some part or parts of Lake Torrens. Indeed, as later noted the Third Applicant has acknowledged that the claim by the Barngarla People in relation to the northern part of Lake Torrens is not made out, so the primary determination sought is only to an area over the southern part of Lake Torrens. It is then accepted that the Second Applicant should be recognised as holding native title over the northern part of Lake Torrens. Although I have not mentioned there the First Applicant, one available conclusion would be that the Kokatha People hold native title over only part of Lake Torrens.

104    However, the Second and Third Applicants in final submissions put a further contention that, in respect of what might be described loosely as the middle third of Lake Torrens, that there should be a determination that each of the Adnyamathanha People and the Barngarla People together as one native title claim group have shared common rights. The proposed determination then describes the native title holders together as the Adnyamathanha People (as described on the Adnyamathanha Application) and the Barngarla People (as described on the Barngarla Application) with the same specified rights in the “Shared Area” to be exercised in accordance with the traditional laws and customs of the (collective) native title holders.

105    I have significant reservations that, on the three Applications before the Court, it would be either within power or alternatively appropriate, to make such a determination, having regard to s 67 and 68 of the NTA as well as other provisions in the NTA.

106    As noted there is some foundation for such an approach in Daniel.

107    Nicholson J earlier in Daniel v Western Australia [2003] FCA 666 had found that two groups of persons (Ngarluma and Yindjibarndi Peoples) held native title in the claim area. Their joint application had apparently been authorised by each group, as separate persons were nominated on behalf of each group to constitute the composite applicant: see at [41].

108    To put the conclusions into context, that primary decision concerned the hearing of three competing claims. The second and third applicants’ claims were unsuccessful: see at [501, [527] and [528]. The first applicant’s claim on behalf of the Ngarluma People and the Yindjibarndi People jointly succeeded to a limited degree: see at [510] and [525]-[526].

109    In the case of the applicants, said to comprise a composite group of Ngarluma and Yindjibarndi People, the primary judge at [338]-[339] concluded that it was not necessary to make a specific finding as the areas over which group, or subgroup, claimed native title were different. There was a consistent focus on the Ngarluma People’s claim area and the Yindjibarndi People’s claim area separately, concerning the native title rights and interests claimed: see at [93] and [118]-[129] and variously elsewhere in the reasons. It appears the areas or sub-areas were physically separated by a significant ridge of hills. After the reasons were published, the parties were given an opportunity to address the appropriate form of the determination.

110    The primary judge then, in Daniel, decided that, in the circumstances, there could be one determination which in effect comprised two subsidiary determinations separately for each of those groups of people: at [4]-[23]. Although there is reference to “separate and overlapping determinations”, it appears from the determination that that there was slight overlapping of the separate areas of the Ngarluma and Yindjibarndi claim areas in the area of the ridge of hills. There was one determination that the Ngarluma People held native title over part of the claim area, and the Yindjibarndi People held native title over a different part of the claim area: Daniel v State of Western Australia [2005] FCA 536. A reference to the attached map does show some overlap of the separately coloured hatched areas to depict the two areas of determination along the ridge of hills.

111    It does not appear to have been considered whether s 68 precluded the “subsidiary determinations” which, to some extent, overlapped. However, it is apparent in any event from the reasoning in Daniel that the critical step in the reasoning was addressing the determination area in the application, in two separate steps, namely by asking over what part of the claim area had native title been shown to exist so that there should be a determination; and separately addressing s 225(a)-(e).

112    In Daniel, Nicholson J said at [4]-[9]

[4]    In the draft determination attached to the July reasons it was proposed, as being consistent with the reasons, that the determination should provide as follows:

“8.    Non-exclusive native title rights and interests exist in relation to the Determination Area and are held by the Ngarluma and Yindjibarndi peoples as the common law holders of the native title rights and interests as follows:

•    Native title held by Ngarluma peoples is held in relation to the Ngarluma claim area (excluding the area of the sea beyond low water mark) or such lesser portion as may be referred to below in respect of any particular right and interest;

•    Native title held by Yindjibarndi peoples is held in relation to the Yindjibarndi claim area or such lesser portion as may be referred to below in respect of any particular right and interest.”

The first respondents submit that, in respect of the overlap area, the preferable conclusion on the Court’s reasoning is that two distinct native titles are held severally by the two groups rather than one native title held collectively by the two groups.

[5]    To consider this aspect it is necessary first to turn to the relevant provisions in the NTA. Section 94A of the NTA requires a determination to set out the details of the matters mentioned in s 225. Section 225 provides that 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’. It further provides that if it does exist there has to be a determination of, among other things, ‘who the persons, or each group of persons, holding the common or group rights comprising the native title are’. This supports the view that there should be a determination in relation to the determination area, which will include within it a determination of who holds common or group rights. There are thus two levels of determination: the principal determination being a determination of whether native title exists in relation to the particular area, and the subsidiary determinations being a determination of the matters set out in pars (a) – (e) of s 225. Where different groups are found to hold different native titles, necessarily there is a requirement for more than one subsidiary determination. Those paragraphs require determination of who holds native title and the nature and extent of the native title rights and interests. This statutory language accommodates variations in entitlement to rights between applicants and groups of applicants.

[6]    This is supported by reference to s 61 which provides that persons who may make application for native title are authorised persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Therefore, the application is directed to ‘the particular native title claimed’ even though not all the claimants claim the same rights. As the July reasons state at [60], the first applicants initially brought a claim that there was a single composite community known as the Ngarluma and Yindjibarndi peoples but subsequently abandoned that claim in favour of one that there were two groups, namely, the Ngarluma peoples and Yindjibarndi peoples holding rights comprising native title rights. The findings in the July reasons accepted that position subject to exclusions and issues of extinguishment and any other qualifications set out in the text of each finding.

[7]    A plain reading of ss 61, 223 and 225 supports the view that the determination should be approached on the basis that the Court should make a single principal determination in which subsidiary determinations are made on the issues raised in pars (a) – (e) of s 225. That approach may, in appropriate evidentiary circumstances, lead to a finding that different persons or groups of persons hold common or group rights comprising the native title. The statute requires the subsidiary determinations to be made in relation to each group: the focus is to be on the holder group rather than a geographical area (such as an overlap area). Importantly s 225 directs attention, in respect of a particular determination area, to who holds native title and to the nature and extent of the rights and interests so held. Looked at from the perspective of each group, the fact of overlap in a geographical area is relevant only to the extent of rights of each group and does not support the making of a determination in respect of a so-called overlap area of a determination of one native title held by two groups.

[8]    As has been already stated, that, however, does not mean that there should be two principal determinations. What the Court is required by s 225 is to make ‘a determination of native title’. That determination is required in subsidiary determinations to identify the persons or group of persons holding common or group rights comprising the native title. Each subsidiary determination may vary as to its terms depending on the findings of fact concerning the native title rights and interests held by each claimant group. Nevertheless, there will still be one principal determination in respect of the determination area.

[9]    This view is supported by the use of the description ‘the determination area’ as it appears in s 225(b) and s 225(c). That description is a reference to the particular area of land and waters in relation to which the claim was made and a determination is required; it does not require a focus only on the area where any native title is found to exist. Furthermore, the underlying rationale of ss 13, 67 and 68 of the NTA is that the issue of whether native title exists in any particular area is to be determined once only in respect of a determination area (i.e. in the one proceedings; subject to any revision application or appeal). For that reason the principal determination must relate to the determination area. Variations in native title holding by groups within the area are matters to be addressed in subsidiary determinations.

113    I do not, with respect, consider that that separation of the two steps is appropriate. Where there are, as here, competing applications over the same area, it is proper that – depending on the findings – there may be a determination of one application in favour of the applicant over part of the claim area, and a determination on another application in favour of the second applicant over a different part of the claim area, and each claim may be unsuccessful over part or all of the claim area, whether or not a separate claim, heard together, itself succeeds in part. But the step taken in reliance on s 61, in [6] of those reasons, is predicated upon a particular native title claim group making the claim by an applicant authorised by s 251B of the NTA. And that, in turn, enlivens the considerations in s 225(a)-(e). I consider the steps are an integrated process of the one inquiry.

114    It may be that the particular way in which that claim was made, as noted, diverted attention from the requirement of authorisation in the terms specified. It may be that there was no focus on the significance of the finding that “the native title claim group” was not found to be the group who brought the claim. It may be that s 225(a) does accommodate the recognition of more than one group of persons holding the common or group rights comprising the native title in certain circumstances.

115    The decision in Banjima People v State of Western Australia (2015) 231 FCA 456 (Banjima FC) appears to have proceeded on the basis that there can be only one native title group which holds the native title rights and interests over a particular section of country. The Full Court (Mansfield, Kenny, Rares, Jagot and Mortimer JJ) said at [54]:

Assume that the primary judge, as the State contended, had found shared rights in respect of a part of the Banjima claim area. On the basis of his other conclusions discussed in the context of grounds 1(a) and 1(c) above, it would necessarily be the case that Banjima rights and interests, at sovereignty, would be exclusive of all persons other than those who had the benefit of the shared rights and interests. The point the primary judge was making at [308], [312] and [691] was what the evidence did disclose was that the people who may have had the benefit of those shared rights did not continue to assert them. Accordingly, insofar as those shared rights are concerned, there had been no continuity of connection with the part of the land over which the (presumed) shared rights had been enjoyed at sovereignty. The primary judge was saying no more than that, in such a case, the remaining native title rights and interests, those of Banjima People, would be exclusive. There is no error in this reasoning. If there is no person who can presently assert the existence of continued shared rights in any part of Banjima country, then the Banjima People’s otherwise exclusive rights and interests in the whole of their country remain and can be asserted against the world. The State’s contention to the contrary wrongly assumes that if his Honour had found shared rights at sovereignty (which he did not) then the rights and interests of the Banjima People were not now exclusive as against any person. This is not the logical concomitant of the primary judge’s reasoning. Banjima rights and interests, on that assumption, would be subject only to the shared rights of the particular persons who held them. As the primary judge correctly said at [317]:

Whether or not other language groups — such as the Palyku or the Yindjibarndi — also had interests at sovereignty becomes irrelevant for present purposes. If there is no other group that presently asserts any such interests, either exclusively or on a shared basis, and the evidence shows that on the balance of probabilities the Banjima traditionally had rights and interests in that area, then there is no adequate basis to deny the claimants’ claim that the traditional boundaries of the Banjima extend to where they currently assert that they extend, for native title purposes.

116    That decision also informs the nature of the rulings now to be made on the contentious sections of the expert reports and other evidence. That is because it recognises that a favourable finding in an application for the recognition of native title does not necessarily mean that at an earlier point in time there may not have been other Indigenous people with some form of rights over that country but who no longer assert them. It also accommodates the recognition of different groups over different areas within a claim area if the circumstances (including the procedural circumstances) warrant that.

117    The procedural requirements are important.

118    In Commonwealth of Australia v Clifton [2007] FCAFC 190, the Full Court (Branson, Sundberg and Dowsett JJ) considered the question of whether the Federal Court may make a determination of native title in favour of a person who has not made a native title determination application under s 61 in relation to the area in question, but who is a respondent to such an application brought on behalf of a claimant group which does not include him. The Full Court affirmed that the Court did not have the power to do so. Relevantly, at [57] their Honours said:

Section 213(1) of the Act discloses a legislative intent that a determination of native title should only be made by the Court in accordance with the procedures set out in the Act. In our view, since the coming into force of the Native Title Amendment Act, those procedures require, as a minimum, that before any determination may be made that native title is held by a particular group, an application as mentioned in s 13(1) must be made under Part 3 of the Act by a person or persons authorised by that group in the manner required by s 61(1).

119    As noted, that judgment was further considered by the Full Court Badimia. The primary judge had made a determination that native title did not exist in response to a claimant application made on behalf of the Badimia People. The primary issue before the Full Court was whether the NTA, properly construed, authorised the making of a determination that native title does not exist in response to a claimant application. The Full Court concluded that it did. Importantly for present purposes, one of the reasons for doing so was the reliance on the decision in Clifton and the need for compliance with the particular procedures required by s 213(1). The plurality (North, Mansfield, Jagot and Mortimer JJ) at [41] said that Clifton recognised that, where there is more than one native title claim group seeking a determination over a particular claim area, each group must follow the procedures prescribed in the NTA, and referred specifically to authorisation, the making of an application, and the provision of the information specified by s 62.

120    In this matter, the proposed joint determination is not within the scope of either the Adnyamathanha Application nor the Barngarla Application. Although the two Applicants in those matters no doubt instructed their solicitors to present that proposal, there is no evidence – indeed no suggestion – that a combined claim group as asserted has authorised the making of such a claim. I do not know whether or not they would. If they were minded to do so, they might have been expected to have brought first such a claim rather than the competing claims presented. The history of claims concerning Lake Torrens provides no basis for being confident that such a claim has been, or would be, authorised by such a combined claim group. Unlike the circumstances in Daniel, there is no joint application.

121    In those circumstances, I do not consider it proper to proceed to consider making such a determination. It is therefore not necessary to fully explore the significance of the approach in Daniel or to consider whether, in the circumstances, the other procedural requirements for a claimant application under s 61 to result in a determination of that character have been, or should have been, complied with by the two separate applications.

122    There is, of course, much to be said for the alternative conclusion. That is a contention developed, in particular by the First Applicant, albeit to recognise common, rather than joint, rights, of more than one group in the same area of land or waters.

123    The steps in that contention are first, that s 225 of the NTA defines a "determination of native title" as a determination of whether or not native title exists in relation to a particular area of land or waters and, if it does exist, a determination of, inter alia:

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

124    In its terms, the NTA contemplates that the relevant native title may be held as either “common” or “group” rights by more than one group of persons.

125    By way of factual background, supporting the contention, it is then said that there have been a number of cases that have recognised that “Aboriginal society does not mark out boundaries to land in western style”: De Rose v South Australia [2002] FCA 1342 at [908] per O'Loughlin J. So much is almost self-evident. I remarked in Barngarla at [778] that Aboriginal cultural groupings are not and were never, political entities and so there was never any need for them to be geographically demarcated with the precision one expects of nation states. In Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [182], Barker J made the observation that, in some circumstances, particularly where the country of one group begins to run out and the country of another starts, there may well be a basis for concluding that both groups have rights and interests and in that sense “share” that area of country.

126    At a more interpretative level, it is pointed out that the NTA has as one of its main objects in s 3(a) “to provide for the recognition and protection of native title”: Yorta Yorta HC at [76] per Gleeson, Gummow and Hayne JJ.

127    However, even accepting that the NTA is clearly remedial and beneficial legislation and must be construed accordingly: Yarmirr at [124] per McHugh J, I do not consider that those submissions properly have regard to the particular procedural prescriptions in the NTA, and the authorities addressing them.

128    I have separately, and later, in these reasons explained why, on the evidence, I have not been able to conclude, as an alternative to the competing claims of the three Applicants, that Lake Torrens, excluding Andamooka Island, was a transitional zone where the rights and interests of Western Desert and Lakes Groups people co-existed at sovereignty, and that those rights and interests remain in existence today, so that there should be a determination that identifies the rights and interests of each of the groups involved over Lake Torrens or parts of it.

129    However, I should record at this point, that I am firmly of the view that no such accommodation would be consistent with the evidence of the Kokatha witnesses, in the practical sense of there being an acceptable and accommodating sharing of country in the manner suggested, and secondly (and perhaps even more firmly) in the procedural sense that any joint resolution of the three (or two: Barngarla and Adnyamathanha) Claim Groups to support such a claim of shared rights and interests would be supported.

THE (PARTLY EVOLVING) CLAIMS

130    During the course of the hearing following the lay evidence and the expert evidence, there was some refinement by the Applicants of their respective claims, and by the State in response. The position of the parties as presented during closing submissions, to the extent necessary, is outlined below.

(a)    The First Applicants claim

131    The description of the Kokatha People as the claim group contained in the Kokatha Application consists of those Aboriginal people who:

(1)    are the following named individuals (where living) and their biological descendants:

(a)    Alma Allen;

(b)    Arthur Baker;

(c)    Hilda Captain;

(d)    Susie Captain;

(e)    Andrew Davis;

(f)    Percy Davis;

(g)    Stanley Davis;

(h)    Ted Egan;

(i)    Micky Fatt;

(j)    Gladys Kite;

(k)    Ted Larkins;

(l)    Mick Reid;

(m)    George Reid;

(n)    William Smith;

(o)    Dick Thomas;

(p)    Edie Thomas;

(q)    George Turner;

(r)    Wild Mary;

(s)    Eileen Wingfield; and

(2)    are included as native title claimants because of their spiritual connection to and responsibility for specific sites in the determination area, being:

(a)    Lee Brady;

(b)    Tony Clark; and

(c)    Mark McKenzie.

132    The First Applicant claims that over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where s 238 and/or ss 47, 47A and 47B apply), members of the Kokatha People claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to their traditional laws and customs.

133    The First Applicant claims that over areas where a claim to exclusive possession cannot be recognised, the nature and extent of the native title rights and interests claimed in relation to the application area are the non-exclusive rights to use and enjoy the land and waters in accordance with traditional laws and customs being:

(1)    the right to access and move about the application area;

(2)    the right to hunt on the application area;

(3)    the right to fish on the application area

(4)    the right to gather and use the natural resources of the application area such as food, medicinal plants, wild tobacco, timber, stone and resin;

(5)    the right to use the natural water resources on the application area;

(6)    the right to live, to camp and to erect shelters on the application area;

(7)    the right to cook on the application area and to light fires for all purposes other than the clearances of vegetation;

(8)    the right to share or exchange subsistence or other traditional resources obtained from the application area;

(9)    the right to engage and participate in cultural activities on the application area including those relating to births and deaths;

(10)    the right to conduct ceremonies and to hold meetings on the applications area;

(11)    the right to teach on the application area the physical and spiritual attributes of locations and sites within the application area;

(12)    the right to maintain and protect sites and places of significance under traditional laws and customs on the application area;

(13)    the right to maintain, conserve and/or protect significant ceremonies, artworks, song cycles, narratives, beliefs or practices by preventing (by all reasonable lawful means) any activity occurring on the application area which may desecrate, damage, disturb or interfere with any such ceremony, artwork, song cycle, narrative, belief or practice;

(14)    the right to prevent (by all reasonable lawful means) any use or activity within the area which under traditional laws and customs is unauthorised or inappropriate in relation to significant locations, sites or objects within the area or ceremonies, artworks, song cycles, narratives, beliefs or practices carried out within the area;

(15)    the right to be accompanies on to the application area by those people who, though not members of the native title claim group, are:

(a)    spouses of members of the native title claim group,

(b)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the application area; or

(c)    people required by members of the native title claim group to assist in, observe, or record traditional activities on the application area.

134    The rights sought in (2)-(6) and (10) above, are traditional rights exercised in order to satisfy personal, domestic, or communal needs.

135    The Kokatha People say that they have demonstrated continued connection since sovereignty to the whole of the claim area. They claim exclusive rights to possession of the claim area.

136    They say that there is no evidence of any present day Adnyamathanha occupation or use of Andamooka Island, and the only evidence of any present day use of the surface of Lake Torrens by Adnyamathanha People relates to non-traditional uses only a short distance in from the Lake’s eastern shoreline and that the Adnyamathanha People have failed to establish the existence of any traditional Adnyamathanha People’s rights and interests in, or in the continuity of any relevant connection with, any part of the claim area.

137    Similarly, the Kokatha say that the Barngarla People have failed to establish the existence of any traditional Barngarla rights and interests in, or in the continuity of any relevant connection with, any part of the claim area.

(b)    The Second Applicants claim

138    The description of the claim group contained in the Adnyamathanha Application consists of those Aboriginal people who:

(1)    are the descendants (whether biologically or by adoption) of the apical ancestors:

(a)    Mt Serle Bob;

(b)    Polly, wife of Mt Serle Bob;

(c)    Quartpot Tommy;

(d)    Mt Serle Bob’s sister, wife of Quartpot Tommy;

(e)    Willy Austin Snr;

(f)    Nicholas Demell;

(g)    Emily McKenzie, wife of Nicholas Demell;

(h)    Sydney Ryan;

(i)    Mary, wife of Sydney Ryan;

(j)    the siblings of Angepena Billy or Mary;

(k)    Fanny, wife of Angepena Billy;

(l)    the siblings Sara Johnson, Matilda Johnson, Fred Johnson, Natalie Johnson, Jessie Johnson or Sydney Jackson;

(2)    who identify as Adnyamathanha; and

(3)    are recognised by other Adnyamathanha People under the relevant Adnyamathanha traditional laws and customs as having maintained an affiliation with, and continuing to hold native title rights and interests in, the claim area.

139    The Second Applicant claims that the nature and extent of the native title rights and interests held by all members of the native title claim group in relation to the claim area are rights to use, stay on and enjoy the land and waters of the claim area being:

(1)    the right to access and move about the claim area;

(2)    the right to hunt on the claim area where appropriate, and together and use the natural resources of the claim area such as food, plants, timber, resin, ochre and soil, where appropriate;

(3)    the right to cook and to light fires for cooking or as part of traversing the claim area;

(4)    the right to distribute, trade or exchange the natural resources of the claim area;

(5)    the right to conduct ceremonies and hold meetings on the claim area;

(6)    the right to teach on the claim area the physical and spiritual attributes of Lake Torrens and of locations and sites within the claim area;

(7)    the right to visit, maintain and preserve sites and places of cultural or spiritual significance to the Adnyamathanha People within the claim area including the lake surface, islands and mound springs;

(8)    the right to speak for and make decisions in relation to the claim area about the use and enjoyment of the claim area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Adnyamathanha People;

(9)    the right to be accompanied on to the claim area by those people who, though not Adnyamathanha People, are:

(a)    spouses of an Adnyamathanha Person;

(b)    or people required by traditional law and custom for the performances of ceremonies or cultural activities involving Lake Torrens or on the claim area;

(c)    or people who have rights in relation to Lake Torrens or the claim area according to the traditional laws and customs acknowledged by the Adnyamathanha People;

(d)    or people invited by the Adnyamathanha People to assist in, observe or record traditional activities on the claim area.

140    The rights and interests claimed in (1)-(9) above are for personal domestic and non-commercial communal use.

141    The Second Applicant says that they have demonstrated continued connection since effective settlement (and by inference, since sovereignty) to the whole of the claim area, or alternatively, substantially the whole of the claim area. They claim non-exclusive rights to access and move about; hunt; gather and use resources; cook and light fires; use water resources; distribution, exchange, etc, natural resources; conduct ceremonies and meetings engage in cultural activities; teach the attributes of the claim area; visit and maintain significant sites; speak for country; and be accompanied by certain people on the claim area.

142    The Second Applicant says that the Barngarla People are members of the same Lakes Society as the Adnyamathanha People and governed by the same laws. Families who identify as Adnya-Barngarla are amongst the Adnyamathanha people who are the traditional owners of the land the subject of Adnyamathanha No 1. They are encompassed in the description of the Adnyamathanha People claim group. Those persons also have interests in the claim area as Adnyamathanha people. To the extent that there is any distinct Barngarla People’s interest in the claim area, it is limited to a line south of Willochra Creek.

143    The Second Applicant submits that the Kokatha People’s claim should be dismissed. The evidence does not demonstrate traditional rights and interests in relation to the claim area, nor continuing connection, from sovereignty.

(c)    The Third Applicants claim

144    The description of the claim group contained in the Barngarla Application consists of the group of persons described as:

(1)    people who are related by means of the principle of descent to the following Barngarla (Lake Torrens) apical ancestors:

(a)    the siblings Percy Richards and Susie Richards;

(b)    Maudie Blade who is the mother of Phyllis Croft;

(c)    Georgie Glennie and Mary Glennie;

(d)    The siblings Bob Eyles and Harry Croft;

(e)    Arthur Davis (also known as King Arthur) and his sons Andrew Davis, Jack Davis, Stanley Davis and Percy Davis; and

(2)    who have a connection with the claim area in accordance with the traditional laws and customs of the Barngarla People native title claim group; and

(3)    who identify as a Barngarla (Lake Torrens) person and who are accepted by the Barngarla (Lake Torrens) People as a Barngarla (Lake Torrens) person.

145    In the Barngarla Application, the Third Applicant claims in its in relation to the whole of Lake Torrens, the non-exclusive right to use the land and waters in accordance with their traditional laws and customs being:

(1)    the right to use and enjoy the area;

(2)    the right to make decisions about the use and enjoyment of the area;

(3)    the right of access to the area;

(4)    the right to control the access of others to the area;

(5)    the right to use and enjoy resources of the area;

(6)    the right to control the use and enjoyment by others of the area; and

(7)    the right to maintain and protect places of importance under traditional laws, customs and practices in the area.

146    The Barngarla People submit that the traditional laws and customs of the Barngarla People and the Adnyamathanha People demonstrably relate to Lake Torrens and the traditional laws and customs of the Kokatha People do not. However, even if the Court finds that the Kokatha People possess or appear to possess rights and interests founded upon traditional laws and customs that relate to the claim area, the rights and interests asserted to be possessed by the Kokatha People at sovereignty cannot be made out on the evidence. More specifically, the Kokatha People’s assertion of possession of rights to possess the claim area to the exclusion of all others cannot be established.

147    The Third Applicant says that, the Barngarla People with the Adnyamathanha (Kuyani) People and other groups made up a cultural grouping which is referred to as the “Lakes Group”; that at sovereignty, the Barngarla People and the Kuyani People relevantly possessed tenurial rights in the claim area pursuant to their respective laws and customs; and the geographical extent of the Barngarla People’s rights and interests in relation to Lake Torrens is that identified in the “two brothers” story by Fergie and Lucas during expert evidence.

(d)    Joint submissions of the Second and Third Applicants

148    During the course of closing submissions, the Second Applicant and the Third Applicant filed and served a document entitled ‘Joint written submissions of the second and third applicants as to appropriate determinations’ (Joint Submissions) which concern the final position of the Second and Third Applicants including certain concessions which were made in respect of parts of Lake Torrens, in light of the evidence during the hearing. It presented broadly the terms of an alternative determination which, they said, was available to the Court on the facts.

149    Neither the Second nor the Third Applicant sought leave to amend their application to reflect the alternative determination which they said the Court could make. Indeed, as noted, it is not clear that the Second Applicant, who said its submission was on instructions from the management of the claim group, was duly authorised to do so and there was no proposal nor application made under s 84D(4) of the NTA for the Court to hear and determine either or both of the Adnyamathanha or Barngarla Applications to reach that alternative determination despite the apparent lack of authorisation, or to amend the Adnyamathanha Application under s 66C despite what may be a defect in authorisation if the claim is to be significantly revised.

150    It may be said that the Second and Third Applicants primarily seek the determination of native title rights and interests as outlined in each of their respective claimant applications, and that the Joint Submissions indicate concessions made by each of the Second and Third Applicants that the evidence is insufficient to demonstrate that a finding of non-exclusive native title rights and interests should be made in favour of either the Second or Third Applicant in respect of all of Lake Torrens.

151    The Joint Submissions contain three maps annexed to them which would require refinement if a determination of native title were to be made in the proposed terms. The three annexures are based on copies of exhibit S1, a map depicting Lake Torrens, which depict lines which divide Lake Torrens into two or three portions.

152    Annexure A depicts a line bisecting Lake Torrens into a northern and a southern portion. The line joins the outflow of Willochra Creek (on the east) and the outflow of the creek identified as South Gap – Barngarla gateway to Lake Torrens (on the west). The line is named the “McKenzie Line” in reference to the evidence given by Mick McKenzie, Regina McKenzie and Heather Stuart, each of whom are named as part of the Second Applicant.

153    Annexure B also depicts a line bisecting Lake Torrens into a northern and a southern portion. It runs slightly north of Nilpena (on the east) across the Lake to south of Andamooka township (on the west), so that Andamooka Island is placed within the southern portion of Lake Torrens. This line is named the “Fergie Line” in the evidence, in reference to the expert anthropological evidence of Fergie who described what is, in her opinion, the geographical extent of the Barngarla rights and interests in relation to Lake Torrens as identified in the “two brothers” story (the description the “Fergie Line” was not created by or endorsed by Fergie).

154    Annexure C depicts both the McKenzie Line and the Fergie Line on the same map, so that the Lake is divided into three parts: south of the McKenzie Line, between the McKenzie Line and the Fergie Line, and north of the Fergie Line.

155    The Second Applicant in any event acknowledges that the area south of the McKenzie Line was Barngarla country at sovereignty. It is accepted by the Adnyamathanha People that the Barngarla People have non-exclusive rights over that area. The corollary is that the Adnyamathanha People accept that their claim to native title rights over Lake Torrens south of the McKenzie Line will not succeed.

156    The Third Applicant acknowledges that the portion of the claim area north of the Fergie Line was and remains Adnyamathanha country – and submits that the present Adnyamathanha claim should succeed in relation to this portion of the claim area. The corollary is that the Barngarla People accept that their claim to native title rights over Lake Torrens north of the Fergie Line will not succeed.

157    The Second and Third Applicant jointly submit that, if either of their individual claims does not succeed in respect of the area between the McKenzie Line and the Fergie Line, they had over that area common rights at sovereignty as members of a larger cultural bloc (the Lakes Society) which was based on and followed like traditions and customs and accommodated each other. The appropriate determination then, would involve a description of both the Adnyamathanha People and the Barngarla People who together are the native title claim group and that the native title rights and interests to be recognised are:

(1)    the right to access and move about the Determination Area [that is, the middle part of Lake Torrens];

(2)    the right to live, to camp and to erect shelters there;

(3)    the right to hunt and fish there;

(4)    the right to gather and use the natural resources of the area such as food, plants, timber, resin, ochre and soil;

(5)    the right to right to cook and to light fires for cooking and camping purposes there;

(6)    the right to use the natural water resources of the area;

(7)    the right to distribute, trade or exchange the natural resources of the area;

(8)    the right to conduct ceremonies and hold meetings there;

(9)    the right to engage and participates in cultural activities on the area including those relating to births and deaths;

(10)    the right to carry out and maintain burials of deceased native title holders and of their ancestors within the area;

(11)    the right to visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders within the area;

(12)    the right to speak for and make decisions in relation to the area about its use and enjoyment by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders; and

(13)    the right to be accompanied on to the area by those people who, though not Native Title Holders, are

(a)    spouses of Native Title Holders; or

(b)    people required by traditional law and custom for the performances of ceremonies or cultural activities on the area; or

(c)    people who have rights in relation to the area according to the traditional laws and customs acknowledged by the Native Title Holders; or

(d)    people invited by Native Title Holders to assist in, observe, or record traditional activities on the area.

158    They say that the native title rights and interests listed in (1)-(13) above do not confer possession, occupation, use and enjoyment of Lake Torrens on the native title holders to the exclusion of others. The native title rights and interests are for personal, domestic and non-commercial communal use. The native title rights and interests are subject to and exercisable in accordance with the traditional laws and customs of the Native Title Holders.

159    For the reasons already given, I am not satisfied that such a proposal is a claim authorised by the larger claim group it is based on, so I do not propose to accede to it. I do not need to address the other potential procedural obstacles to such a claim succeeding having regard to s 213(1) of the NTA, or the evidence in the context of such a claim.

160    If only the Second Applicant’s claim or the Third Applicant’s claim is successful, each says the Court should make a determination in favour of one or other of them in respect of the area between the McKenzie Line and the Fergie Line.

(e)    The State of South Australia

161    The State of South Australia submits that:

(1)    no Applicant has established both the existence of native title rights at sovereignty and continued connection in the exercise of those rights for the purposes of s 223(1)(b) of the NTA, so that the three applications must be dismissed; and

(2)    on the alternative claims put by the Adnyamathanha People and the Barngarla People, the evidence is too uncertain and thus insufficient to enable the Court to make factual findings to the requisite degree of certainty to draw lines on Lake Torrens and within those lines and the external boundaries of Lake Torrens, so the result should be the dismissal of the applications in any event.

162    The grounds for the State’s submission in respect of each of the applications are different.

163    The State’s case with respect to the Kokatha People is that they were not connected to the claim area at sovereignty. In addition the spiritual connection evidence of contemporary witnesses does not emanate from sovereignty and thus is not “traditional” in the relevant sense.

164    The State’s case with respect to the Adnyamathanha People is that the connection they appear to have had at sovereignty over the northern portion of the claim area has not continued. In addition, the evidence of contemporary witnesses did not demonstrate contemporary connection to the claim area. In its submissions, the State also made submissions indicating that the genealogical and biographical links to Lake Torrens provided little evidence of either the apical or intermediate ancestors’ connection to the claim area prior to about 1920, and that only apical ancestor Nicholas Demell has any potential relationship to the claim area.

165    The State’s case with respect to the Barngarla People is similar to that regarding the Adnyamathanha People, in that any historical association with the southern portion of the claim area is not supported by the contemporary evidence.

166    The State says that, unsurprisingly given the nature of the claim area, the evidence of the lay witnesses indicated minimal physical use of Lake Torrens by all of the groups so that, on its own, it is not capable of satisfying the statutory requirements of the NTA. The primary evidence of each of the Applicants consists of mythological stories that are in some way related to the Lake supplemented with statements of minimal use (or deliberate non-use) of Lake Torrens.

THE ISSUES

167    It is not disputed that each of these native title claim groups satisfy the statutory test laid down in s 223(1) of the NTA. That is, each group acknowledges and observes a body of traditional laws and customs under which that group possesses rights and interests in and had a connection with, an area of land and waters. That has been the subject of the three determinations referred to earlier in these reasons.

168    The issue in this proceeding is whether all of, or any part of, the rights and interests possessed by any of the three groups, extend to and include all of, or any part of, Lake Torrens, including Andamooka Island, at sovereignty and have since been maintained and exercised by the successors to the relevant group or groups to the present time, albeit appropriately adapted, so as to satisfy s 223(1)(b) requiring the present connection to Lake Torrens (or a part or parts of it) under those traditional laws and customs. There is no issue concerning s 223(1)(c).

Statement of Agreed Facts

169    On 15 April 2015, before the Third Applicant’s claim was filed, the First and Second Applicants and the State (but not Kelaray or Straits), signed and filed a brief one page Statement of Agreed Facts (SAF), which was tendered as part of the proceedings. The agreed facts are:

Adnyamathanha

1.    The Adnyamathanha people, and its society, are as identified in the determinations of native title made by Federal Court of Australia in March 2009 and February 2014, and are a relevant society for the purposes of s 223 of the Native Title Act 1993.

2.    The Adnyamathanha comprise various traditionally closely related groups, including the Kuyani, Pirlatapa, Wailpi and Yadliyawara.

3.    The Adnyamathanha people acknowledge and observe traditional laws and customs in the Adnyamathanha people, which are rooted in those normative rules which existed prior to the assertion of sovereignty by the British Crown. Those traditional laws and customs have a continuous and unbroken existence from sovereignty until the present day, and satisfy the requirement for such traditional laws and customs in s 223 of the Native Title Act 1993.

4.    Key features of the Adnyamathanha society are the division of the Adnyamathanha people into two traditional matrilineal moieties, Matheri and Arraru; and belief in the Mura (in relation to areas covered by the determinations of native title made by the Federal Court of Australia in March 2009 and February 2014), for which the Adnyamathanha have responsibility.

Kokatha

5.    The Kokatha people are a recognisable group forming part of the wider Western Desert society.

6.    The Western Desert society has continued to exist from sovereignty through to the present day as a body united in and by its acknowledgement and observance of a body of traditional laws and customs under which the member of that society possess rights and interests in and have a connection with land and waters.

7.    The Kokatha people possess rights and interests in and have a connection with, the land and waters immediately to the west of the claim area under the traditional laws and customs of the Western Desert society which the Kokatha people continue to acknowledge and observe.

8.    The non-exclusive rights and interests possessed by the Kokatha people in relation to the land and waters immediately to the west of the claim area are as set out in paragraph 8 of the determination made by Allsop CJ in Starkey v State of South Australia [2014] FCA 924.

9.    The Kokatha people include the descendants of the named ancestors listed in paragraph 7(a) of the determination in Starkey v State of South Australia [2014] FCA 924.

170    In effect, the SAF is an acknowledgement of key findings which were made in the Kokatha Part A and Adnyamathanha No 1 determinations by each of the signatories. It was not said that the SAF should be treated other than as admissions by and as against those parties who signed the SAF. I have considered the SAF on that basis. In any event, I proceed generally on the basis that those “findings” are correct. They are, or flow from, the determinations referred to.

171    The use which may be made of the SAF was raised as an issue by the First Applicant and Kelaray. The First Applicant says that the anthropological evidence which the Second Applicant and the State have each chosen to call contain numerous assertions of fact or opinion, inconsistent with the SAF and with the determination and findings in Kokatha Part A. Those submissions are considered in respect of the expert anthropological evidence below. To the extent that evidence is sought to be led which is directly inconsistent with the necessary findings in Kokatha Part A, I have not accorded it any weight.

172    Kelaray submits that the First Applicant extrapolates from, and relies on the SAF as precluding any consideration of the unspecified but extensive range of matters that would necessarily have been the subject of findings if the determination made in Kokatha Part A had been the outcome of contested proceedings. In particular, Kelaray says that the SAF does not extend to assumptions concerning specific affiliations with specific places or cover the details that might be inferred for the making of a determination of native title.

173    A native title consent determination can only be made where the Court is satisfied that it would be appropriate to make a determination of native title rights and interest in the terms agreed by the parties: s 87 of the NTA. Allsop CJ reached that satisfaction in the terms expressed in Kokotha Part A.

174    I have carefully considered the reasons for judgment in Kokatha Part A, conscious that it is said by Kelaray that the First Applicant seeks to extend or to infer findings based upon, but not evident from, his Honour’s reasons. I will only need to further address Kelaray’s concern where it generates a real factual issue.

OBJECTIONS TO THE ANTHROPOLOGICAL EVIDENCE

175    As indicated, concurrent anthropological evidence was heard over a number of days during the hearing. Objections were raised in respect of all or part of the expert reports and evidence of each of the anthropologists and the above ruling was made in relation to the receipt of that evidence. During closing submissions, submissions were pressed by the respective parties to accord little, or no, weight to the evidence given by certain of the expert anthropologists.

176    It is now appropriate to consider those objections.

177    The First Applicant pressed its submissions in relation to the use which could be made of the expert anthropological evidence given by Sutton, and the other anthropologists except for Willis. Those objections are set out in some detail in the “First Applicant’s submissions on the potential for an abuse of process in the proposed expert and ethno-historical evidence” filed on 16 November 2016 and the “First Applicant’s objections to expert evidence” as filed on 24 November 2015.

178    In respect of Sutton, it was submitted that the factual premises that he had used to draw ultimate inferences or conclusions about Aboriginal interests in Lake Torrens and Andamooka Island, were wholly inconsistent with the determination in Kokatha Part A and with the factual findings that necessarily underpin that determination – that is, that the Kokatha have traditional rights and interests in the land to the west of Lake Torrens. Relevantly, the Sutton Report states:

My general position is that work-related family history has led to a Kukarta [sic] overlay on the pastoral leases [west of the Lake] over the top of what was and still remains Kuyani and Barngarla country. Their extension of these recently-based claims to the Lake itself, in a push that is totally exclusive of the native title rights and interests of any other group is a case of attempted annexation.

…

I have concluded from the evidence I have studied that the western limits of Kukarta [sic] country circa 1850 were in the vicinity of Mount Eba, Bon Bon, Kingoonya, Tarcoola and Coondambo. The country to the east of there, as far as about Parachilna on the eastern side of Lake Torrens, was Kuyani country.

…

[T]hat area [the area west of Lake Torrens] belonged to the Lakes society people at sovereignty, that they had retained their connection to the area until the present, and that the Kukarta [sic] established some kind of presence in the area west of the Lake after colonisation.

179    As such, the First Applicant submits that no weight can be given to any of the inferences, conclusions or opinions contained in either of Sutton’s reports.

180    The First Applicant makes similar objections to the expert evidence given by Ellis. It is said that Ellis concludes that, at sovereignty, Lake Torrens was within the territory of Lakes Group affiliated language groups, principally the Kuyani and that only post-European settlement did Kokatha People move eastwards from their traditional country, which lay well to the west, into Kuyani country on the western side of Lake Torrens. On this basis, the First Applicant says that the Ellis opinions in the Ellis Report and the Ellis Supplementary Report cannot be given any weight.

181    Similarly it is said that the Fergie Lucas & Monaghan Report, like the reports of Sutton and Ellis, proceed on the impermissible premise that the authors are not bound to accept the Kokatha Part A determination or the factual findings upon which that determination is based. On that basis, the First Applicant objects to all evidence contained in that report where that evidence contradicts the Kokatha Part A determination and the factual premises which underpin it.

182    In response, the State relied on and reproduced submissions made on 1 November 2015. It said that the parties may rely on ethno-historical evidence to establish a factual basis to ground the broader or ultimate assertion of connection to the Lake, provided that the evidence was limited to that confined purpose and could not, in any event, give rise to an ultimate finding of fact that controverts the ultimate findings of fact made in Kokatha Part A, Adnyamathanha No 1 or Barngarla (emphasis added).

183    The State submitted that the effect of a determination in rem precludes a party in another proceeding putting in issue the ultimate findings or ultimate facts determined in the in rem determination. It submitted that any evidence adduced for the purposes of identifying indigenous groups with a particular interest in an area at sovereignty can only be used for the purposes of identifying indigenous groups with native title in Lake Torrens at sovereignty, that is only for that confined or different purpose, but not so as to challenge any fact underlying an existing in rem determination.

184    That position was broadly supported by the Third Applicant in respect of the evidence of Fergie Lucas and Monaghan.

185    Consequently, the State said that it is permissible to adduce evidence in this proceeding which identified the Kuyani People as having been located on the north western area of land adjacent to Lake Torrens for the limited basis of establishing the Kuyani’s potential connection to the Lake. However, it is impermissible to adduce that same evidence for the purpose of contending, or otherwise controverting the finding in Kokatha Part A, that the Kokatha People were not in exclusive possession of the Kokatha Part A area. It is noted that, even if the Court found that there were shared rights in country at sovereignty, if the persons said to have the benefit of those “shared rights” no longer asserted those rights, then those with the remaining rights must be held to have held them exclusively from sovereignty: see Banjima FC at [48]-[55].

186    In my view, having regard to the approach of the Court in Banjima FC, a finding that at sovereignty more than one group, and particularly more than one of the Applicant groups, might have held some rights and interests in the land which has now been determined to be the land of the Kokatha, Adnyamathanha or Barngarla People respectively would not necessarily be inconsistent with the determinations in Kokatha Part A, Adnyamathanha No 1 or Barngarla. To the extent that the ethno-historical record supports a finding that at sovereignty any applicant group or groups were located on both the eastern and western side of Lake Torrens (or a portion of the eastern and western sides of Lake Torrens), that is said to identify the claim area (or a portion of it) as lying within the territory of that group.

187    Indeed, in their closing submissions, the First Applicant accepted that the Kuyani and Barngarla People, along with the Kokatha People, may have been present in some parts of the area west of the western shoreline of Lake Torrens prior to European settlement but that subsequently the Barngarla and Kuyani left those lands and ceased to have any continuing connection with that area. They accepted that such a factual scenario would be consistent with the determination and the findings in Kokatha Part A that only the Kokatha People now possess native title rights and interests in the land that is contiguous with the western shoreline of the Lake.

188    That acknowledgment is consistent with the evidence given by Willis. Willis accepted that, at effective sovereignty, in addition to the Kokatha, the Kuyani were clearly on the western side of the Lake. As noted above, he said that progressively through to the end of the 19th Century and the beginning of the 20th Century the Kokatha presence was growing at the same time that the Kuyani and the Barngarla presence was retreating and that by 1940 there were almost no Aboriginal people other than the Kokatha on the western side of the Lake.

189    However, I accept the contention of the First Applicant that certain aspects of the expert anthropological evidence referred to does not merely assert that there were shared rights as between the Kokatha and the Kuyani at sovereignty, but rather it asserts that native title rights and interests in the area immediately to the west of Lake Torrens at the time of sovereignty were held by only the Kuyani or the Barngarla, and it also says that at sovereignty most, if not all, Kokatha People resided or were widely thought to be associated in some way with country further to the west, and not with areas immediately to the west of Lake Torrens. From that premise, it is said that it is unlikely that the eastern border of Kokatha country extended west into Lake Torrens at the time of sovereignty, because the Kokatha People were not at sovereignty in the western side of Lake Torrens. In my view, such a premise is not consistent with the decision in Kokatha Part A.

190    The premises upon which expert opinion evidence is based are fundamental, as expert evidence “is only as helpful as the evidence and assumptions on which it is based”: Anikin v Sierrai (2004) 79 ALJR 452 at [28]. Consequently, to the extent that the expert anthropological views are premised upon the Kokatha People not having native title rights and interests in the area immediately to the west of Lake Torrens at sovereignty, I do not place weight on it. That is not to question the scholarship and integrity of any of the expert anthropologists. But, as a matter of record, the premise referred to is fundamental to the Kokatha Part A determination, and the Court must proceed on the basis of it. Nor is it to be critical in any way of those who supported the determination in Kokatha Part A. There was clearly an appropriate body of information, including expert anthropological information, which enabled the State with its responsibilities on behalf of the community to support that determination. Clearly, too, that information was sufficient to satisfy those other Aboriginal persons or groups who had become respondents to the then Kokatha Uwankara Claim to withdraw any objections they had to the determination in Kokatha Part A, that is to give recognition to the Kokatha People as the holders of the native title rights and interests over the area immediately to the west of Lake Torrens.

191    There was substantial accord between the expert anthropologists on a range of related facts. They all broadly accepted that:

(1)    at some time at or before sovereignty there was a large population of Kuyani or Barngarla People on the western side of Lake Torrens (and, I add, also Kokatha People – although not all the experts accepted that);

(2)    the historical record demonstrates a “migration” of Western Desert Peoples in the period up to the 1880s, coming from the north-west, into Mount Eba and other nearby locations and subsequently, more intensely into the area west of Lake Torrens; and that

(3)    by the 1940s Western Desert people had come to numerically predominate in the area west of Lake Torrens.

There is no reason not to place any weight on the collective position of the anthropologists on those matters.

192    Hence, the key differences between the experts in relation to the area to the west of Lake Torrens are principally twofold. The first is the times when the presence of the Kuyani or Barngarla People decreased in that area, and the times when the Kokatha People’s presence in that area increased. I have ruled that it is a determined fact that the Kokatha People occupied, and held native title rights in, the area immediately to the west of Lake Torrens at sovereignty. The second is the difference between the experts as to what the increased presence of the Kokatha People to the west of the Lake signified, that is was it representative of increased usage by the Kokatha People of lands and waters that were, and had always been, Kokatha country, or did it signify a case of migration by the Kokatha People into an area post sovereignty which had previously been Lakes Group country.

193    As any evidence or submissions in relation to migration must be considered in accordance with the determination in Kokatha Part A, that at least by sovereignty, the Kokatha People had rights and interests in that country, to the extent that the dates adopted by an expert or experts indicate that the Kokatha People annexed the land to the west of Lake Torrens only post-sovereignty, or are otherwise inconsistent with the findings in Kokatha Part A, no weight has been placed on that evidence. I have also considered the expert opinion evidence which relies in part on those dates, with particular caution. If the necessary premise for an expert opinion is not consistent with the determination in Kokatha Part A, the opinion itself cannot be given weight.

194    As the reasons below disclose, I have placed significant weight on the underlying ethnographic material, where that material is available either in its original form, or in the relevant expert reports where the contents of that material is described in detail by the anthropologists. I have had regard also to the other material tendered by the parties as well as the expert evidence given by the archaeologists and the evidence of the lay witnesses. That is in part because, in my view and understandably, the anthropologists tended to refer to or emphasise particular features of the ethnographic material relevant to their views (as the cross-examinations respectively sought to expose), and in part because the ethnographic material in relation to the Aboriginal relationships with Lake Torrens itself, as distinct from the adjacent land, was relatively sparse and/or quite general in nature. Where the interpretive analysis of the anthropologists did not lead them to a common view, I thought it would be useful to go back to the sources. I have of course taken into account what each of the anthropologists said about the weight which might be attached to each of the ethnographic materials in evidence (either directly or by its extensive content in one or other of the anthropological reports) and the reasons for that view.

195    I do not consider that particular sections of the expert reports should expressly be struck out. To do so would remove from any consideration the extent to which, if at all, any particular remaining section of that report might have been based in part on a premise which, for the reasons given, cannot be accepted. I have carefully considered whether, leaving the various reports as they stand, might have worked injustice to any particular party, either because it could not properly be understood or tested or in some other way. I have had the benefit, in the light of the general ruling made at an early part of the hearing, of the cross-examination and the submissions of each of the parties. In that light, I am confident that no party has been materially disadvantaged by adopting that ruling at the time. I am satisfied that the course of the hearing gave each party the opportunity to test potentially relevant opinion evidence, and to make submissions about the quality of that evidence or about the parts of the reports which might fall more accurately into the status of argument.

196    Before turning to that review of the material, I note the further specific objections in the evidence of Willis.

197    The Third Applicant submitted that the evidence of Willis should not be accorded any weight because of a combination of all, or some of, the following: that he (it is asserted) has very little direct knowledge of the claim area or the Kokatha People; that he acknowledged that his Report was deficient because he had not had the opportunity to devote such time to its preparation to “satisfactory absorb” (as he put it) the other expert reports and historical material; that he lacked the requisite independence, particularly because of his long relationship with the Western Desert People and culture; that the Willis Report lacks objectivity and is more akin to “assertion, submission and argument” of the type referred to by Allsop J in Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [676]-[677]; and that the Willis Report does not outline the basis/foundation for most of the opinions expressed therein.

198    Willis, as noted above, gave evidence in two capacities. As a person initiated into Western Desert society, it is inevitable that he would have a more intimate knowledge of the laws and customs of that society than others. I did not form the impression that, in describing him as a “Western Desert man” with the relevant culture and practices, he was other than completely honest. Of course, having that status, his evidence as an expert should be viewed with some caution because it is almost inevitable that his expert views would be disposed to reflect that personal foundation. That does not make his views inadmissible. I have taken them into account, but have borne in mind the need to be a little cautious about them for the reason given. It should be said that I did not discern that his evidence was other than provided to the Court to assist it in reaching the proper findings of fact. Nor did I think that his evidence generally about Western Desert society, or its traditional laws and customs, was inappropriately transposed to the Kokatha People (who, it is acknowledged, are part of the Western Desert Cultural Bloc). He accepted the possibility of nuanced variations from one group to another within that bloc, and did not assert his knowledge to be Kokatha specific. Those matters were capable of being, and were, explored in his cross-examination.

199    It may also be observed that Ellis has himself had a very long exposure to the Adnyamathanha traditional laws and customs. Like Willis, I also considered that his evidence was nevertheless careful, considered and objective.

200    I have referred earlier in these reasons to the potential overlap between evidence and submissions, in relation to the expert evidence. To a greater or lesser degree that was apparent in the course of the evidence and in the submissions themselves. I consider that, ultimately, the capacity of the parties through their counsel to “manage” those reports and the oral evidence, recognising and addressing appropriately the evidentiary components, and on the other hand recognising and addressing the argument components, meant that no party was disadvantaged by the line which was drawn by the approach adopted. Indeed, as all counsel acknowledged, sometimes the line between opinion and argument is hard to discern.

201    I do not consider that Willis’ evidence presented such different challenges, or was structured so unhelpfully, that counsel for the Third Applicant was unable to address it in a proper way as evidence (to the extent it clearly was) and to the extent that he said was more in the category of submissions to confront them.

202    I have also borne in mind the reservations which Willis himself made that he had not done as much work as ideally he would have liked in relation to the other experts reports and other extrinsic material, and including his reliance largely upon Draper’s analysis of the early historical and ethnographic material, especially in the light of my assessment of Draper’s own evidence. Where Willis has asserted that historical and ethnographic material, and geographical material, supports his own views, I have not assumed the validity of his assertions and so have not placed weight on those assertions as supporting his views. Where Willis has explained features of the Western Desert Society, on the other hand, I am satisfied that his own knowledge and experience amply qualifies him to have done so.

THE CLAIM AREA AT SOVEREIGNTY AND SUBSEQUENTLY

203    Much of the ethnographic evidence goes to the areas surrounding Lake Torrens and the early attempts made to record and map the areas of different Aboriginal groups. As indicated, Lake Torrens, with the exception of Andamooka Island, is not suitable for long term occupation and most, if not all, of the ethno-historic records concern research undertaken outside of the claim area.

204    In an important respect, moreover those must be viewed with caution in the present case. That is because it has been established in Kokatha Part A, Adnyamathanha No 1 and Barngarla that in the areas surrounding Lake Torrens the Kokatha People, the Adnyamathanha People and the Barngarla People, and in respect of a small stretch of land the Arabana People, held native title rights and interests at sovereignty and continue to do so. In any event, the early ethnography provides only indirect evidence from which the use of Lake Torrens may be inferred, as opposed to direct evidence of rights and interests being held and/or exercised in respect of the claim area itself.

205    The challenge which confronts the Court, in the light of those findings, is how the ethnography is capable of properly informing the “at sovereignty” position in the areas surrounding the Lake beyond the findings in Kokatha Part A, Adnyamathanha No 1 and Barngarla (and there is some dispute about what it does, in fact, demonstrate), especially where it may in part not be consistent with those findings. And then the further step must be addressed as to how that evidence may be properly used to inform findings in respect of Lake Torrens itself.

206    That issue is also directly related to the objections made to the opinion evidence given by the expert anthropologists, who analysed and relied on the historical and ethnographic record of the broader Lake Torrens region, to inform their opinions about the groups which occupied and/or held native title rights in the area surrounding Lake Torrens at sovereignty, and the group or groups which held native title rights in Lake Torrens itself at that time.

207    Each of the anthropologists accepted that it was most likely that Lake Torrens would have been subject to traditional rights and interests by an Aboriginal society, or societies, at sovereignty and that it is likely that members of country groups closest to Lake Torrens would likely have had stronger rights and interests in the nearby portions of the Lake, its islands and springs, than others. In that respect the anthropologists disagree with the views of Norman Tindale, who regarded salt lakes as unoccupied areas, as demonstrated by his 1974 mapping and explanatory statement.

208    The First Applicant, in reliance on Willis said that, while the historical and ethnographic record provides few insights about the Aboriginal presence in the area of Lake Torrens prior to the 1880s, and is sparse and often contradictory in detail prior to 1900, in general terms it consistently identifies the Kokatha as occupying the territory from Lake Torrens west towards Ooldea and north-west towards the Everard Ranges. That is, the record indicates the people who range from Lake Torrens west and north-west into the Western Desert region proper, and who are culturally and socially distinct from the non-Western Desert Aboriginal people of the Spencer Gulf and Flinders Ranges regions.

209    The Kokatha People submitted that the Kuyani People and the Barngarla People, along with the Kokatha People, may have been present in some parts of the area west of the western shoreline of Lake Torrens prior to European settlement, but subsequently the Barngarla People and the Kuyani People left those lands and ceased to have any continuing connection with that area. They said, correctly, that such a factual scenario would be consistent with the determination and the findings in Kokatha Part A that only the Kokatha People possess native title rights and interests in the land that is contiguous with the western shoreline of the Lake.

210    That is supported by the evidence given by Willis. He accepted that, at effective sovereignty, in addition to the Kokatha, the Kuyani were definitely on the western side of the Lake. He said that progressively through to the end of the 19th Century and the beginning of the 20th Century the Kokatha presence was growing at the same time that the Kuyani and the Barngarla presence was retreating and that by 1940 there were almost no Aboriginal people other than the Kokatha People on the western side of the Lake.

211    The Second Applicant said that the ethno-historic record strongly identifies the claim area as lying within the territory of Lakes groups (including Kuyani, Adnyamathanha, Walypi, Adna-Vangalla, and Barngarla Groups). Equally strongly, it is said not to identify the claim area as Kokatha country.

212    Similar propositions were advanced by the Third Applicant which submitted that the ethnography indicated that in former times the land around Lake Torrens (that is, on the eastern and western sides of the Lake) was owned by Lakes peoples – principally the Kuyani and Barngarla – and that Kokatha and other Western Desert peoples occupied country far to the west and northwest of Lake Torrens. Such findings are consistent with the expert evidence given by Sutton and the State’s submissions that the Adnyamathanha were associated with the northern half of Lake Torrens at effective sovereignty (that is, at the time of first European observations), but the Barngarla were associated with the southern portion of Lake Torrens at effective sovereignty and that the Kokatha were not connected to the claim area at effective sovereignty.

213    As indicated, due to the significant dispute in relation to the proper weight to be accorded to the expert anthropological evidence in assessing the claim area at sovereignty, the underlying ethnographic and linguistic material, the expert historical and archaeological evidence and, where appropriate, the lay evidence, have been considered extensively. That has been informed by the submissions of counsel on the weight to be accorded to those materials and the possible explanations given by the experts as to their quality or interpretation.

Historical and early ethnographic evidence

214    Although the claim area falls within the area of the original proclamation of the colony of New South Wales in 1788, it is agreed as between the parties that first contact in the area of Lake Torrens occurred, as suggested by the anthropologists in the Report of the First Conference of Experts, in about 1845 on the eastern side and about 1850 on the western side.

215    The Gara Report provides a general history of the claim area and its surrounds and of certain individuals known to be associated with it. It was received without cross-examination or demur. As its contents are broadly not contentious, it is not necessary to refer to it in detail except to provide a historical context for the anthropological evidence and the ethnography.

216    Lake Torrens was the subject of European discovery in 1840 when Edward Eyre reached its eastern shore. On the assumption it was part of a vast horseshoe-shaped salt lake blocking travel to the north, exploration of the area to the west of the Lake did not occur seriously until the mid-1850s when several explorers looked for grazing land. Two explorers, Oakden and Hulkes, explored about 70 miles north/north-west from Mount Arden (in the southern Flinders Ranges south of Lake Torrens but north-east of Port Augusta), to the vicinity of Oakden Hills (west of Lake Torrens below the Carrapateena Arm of the Lake and immediately to the west of what is now the Stuart Highway). They discovered good grazing country and met some local Aboriginal people who showed them two lakes, both containing “abundant and deep fresh water”. They also recorded many Aboriginal place names.

217    Pastoral stations started operating east of the Lake from the 1840s and west of the Lake from about 1859. In about 1860-1, John Bosworth established a station north of Pernatty Lagoon (west of Lake Torrens below the Carrapateena Arm of the Lake and immediately east of the Stuart Highway and the Oakden Hills vicinity). He recorded a difficult, two day crossing of the Lake with his sheep to his brother’s station on the western side. Another, unsuccessful, crossing may have been attempted by a pastoralist, Kingsmill, from east to west in about 1887 but there is some contradictory evidence on that. What is clear is the tendency of livestock to get bogged in the Lake’s surface. In March 1913, another pastoralist, Greenfield of South Gap, described how 20 tons of feed was delivered to him in 1882 in several trips over the Lake at a spot only about 4 miles across, to the north-west of Kallioota Station on the south-eastern side of the Lake. The teamsters involved believed that the bogginess was affected by the moon.

218    As indicated above, it is agreed between the experts that the historical record demonstrates a significant migration of Western Desert People in the period to the 1880s, coming from the northwest, into Mt Eba and other nearby locations and subsequently, into the area west of Lake Torrens. As Willis observes, considering the typically extensive areas within the range of Western Desert people, that does not demonstrate that the area to the west of Lake Torrens was other than Kokatha country at the time of settlement.

219    The following has predominantly been taken from summaries of the ethnography in the expert anthropological reports, and extracts of the sources provided in those reports and as tendered by the parties.

220    It is appropriate at this stage to record that in the case of much of the underlying historical and ethnographic evidence, and particularly where the ethnographic material relied on is described in detail by the anthropologists but has not itself been tendered by the parties, there are numerous references to pastoral stations and geographic locations in the areas surrounding the claim area, the locations of which in respect of Lake Torrens, are not routinely apparent on the face of those materials. Where possible, I have endeavoured to cross reference those locations with maps, including Annexures A and B to these reasons, a large and detailed 3x3m map of the claim area handed up as an aide by the Third Applicant which includes the northern Spencer Gulf to the south, Lake Gairdner to the west, Lake Eyre (South) to the north and the Flinders Ranges and Gammon Ranges National Parks to the east, and the maps of historical tenure documents annexed to the affidavit of William Watt of 30 October 2015.

Shurmann - 1844

221    In 1844, Reverend Shurmann, a Moravian missionary was based for a time at Port Lincoln. He published a vocabulary of the Parnkalla [Barngarla] language, in which appeared the following entry:

Kukata, national name of a north western tribe of natives, said to be very numerous and ferocious’.

222    Shurmann also contributed a chapter on the Port Lincoln Tribe to JD Woods’ compendium “The Native Tribes of South Australia”, in which he wrote:

The Aborigines inhabiting the Peninsula of Port Lincoln [Eyre Peninsula] are divided into several tribes, with two of whom the European settlers are in daily contact, namely, the Nauo and Parnkalla tribes. Besides these, three other tribes are mentioned by the natives as known to them:- the Nukunnus in the north-east, the Kukatas in the north-west, and the Ngannityiddis in the north, between the two last mentioned of whom a few have now and then visited the settlement.

223    There is a dispute as to what was intended by Shurmann by his description of the “Ngannityiddis”, which he placed in an undefined area “in the north” of the Eyre Peninsula (to the west to Lake Torrens). Willis, in reliance on a 1928 publication by Tindale, says that “Ngannityiddi” was another name for the Kokatha to the north as this is the Wirangu name given to the Kokatha Kadaitchi men (the “featherfoot” nocturnal killer). Sutton, in reliance on a 1974 publication by Tindale suggests that it was not simply a synonym for Kokatha and that if it were, Shurmann would not have distinguished them geographically. He says that the term used to refer to enemies as ‘featherfoot men’ or ‘those who sneak and kill by night’ and that variations of the term were cited by Tindale 1974 as referring to the “Kokata”, “Kujani” or “Kokata and Kujani”.

224    It is not necessary to decide what was intended by Shurmann in that passage. Whether the inhabitants “in the north” of the Eyre Peninsula referred to the “Kokata”, “Kujani” or “Kokata” and “Kujani”, that account does not specify that any group had rights and interests in Lake Torrens. It is also not inconsistent with the decision in Kokatha Part A that the area to the west of Lake Torrens is, and was at sovereignty, Kokatha country or the agreement by the expert anthropologists that the inhabitants to the west of Lake Torrens at sovereignty may have included Adnyamathanha People.

Oakden and Hulkes – 1851, 1857

225    In 1851, Oakden and Hulkes went on an expedition in the vicinity of the Oakden Hills, near Pernatty Lagoon on the south-west side of Lake Torrens. Hulkes reported to the Commissioner of Crown Lands in 1857 on this expedition. According to Hulkes, the Aboriginal people said that there were ten other lakes to the northwest of those he found near the Oakden Hills, and that ‘Ko-kat-tah is the designation which the aborigines apply to the district’.

226    Sutton observed that there are lakes north-west of Old Oakden Hills intermittently for a distance of 360 km and that the informants may have been speaking of people in the very far distance. The precise location which Hulkes and his informants sought to describe does not need to be determined. The report does not place the Kokatha People any further east than the western side of Lake Torrens, already determined to be Kokatha country in Kokatha Part A.

Taplin – 1879

227    In 1879, Reverend George Taplin produced a book on South Australian Aborigines. C Provis, a police corporal stationed at Streaky Bay, west of the Eyre Peninsula, was one of the sources for this book, with respect to the “Ku-ka-tha” clan. He placed their territory (from his perspective at Streaky Bay) as between Venus Bay, which is approximately 350 km south-west of the southern tip of Lake Torrens, and Point Brown further along the coast to the west, and inland to the Gawler Ranges, but with frequent movements further afield to Fowlers Bay in the west and Port Lincoln to the south-east.

228    The area considered in that account is a significant distance from the claim area. It does not support a claim for rights and interests in Lake Torrens at sovereignty or thereafter.

Babbage and Stuart - 1858

229    Commencing in 1858, Babbage and Stuart were involved in an expedition which travelled north from Port Augusta, past Pernatty Lagoon, as far north as the Turret Ranges to the north-west of Lake Torrens to its northern end, and west as far as Lake Younghusband (a little north of Lake Gairdner). On a subsequent journey northwards along the western side of Lake Torrens, Stuart recorded the native name “Wilaroo” for a salt lagoon and “Andamoka” for a “fine waterhole”. Babbage also made a further expedition north in October, on the western side of Lake Torrens via Emu Springs, Lake Campbell, Maerty, Curdlawidry and Winnamulla.

230    There was no evidence to suggest that Babbage and Stuart recorded the identity of the local people.

Giles – 1875

231    In April 1875, the explorer Ernest Giles travelled from Fowlers Bay, (approximately 550 km south-west of Lake Torrens on the coast), north-west to Ifould Lake and then to “Youldeh” [Ooldea], and then on a long journey eastwards, and around the northern end of Lake Torrens, to arrive on the eastern side of Lake Torrens in Beltana in the Flinders Ranges in April 1875. His party included “one old black fellow and two young ones” who described the area around Ifould Lake, as “Cockata” [Kokatha] country. One of his informants, Jimmy from Fowler’s Bay, described the chain of waters running east from Ooldea to Wynbring (approximately halfway between Ooldea and Kingoonya along the Trans Australia Railway and some 400 km to the west of Lake Torrens). However, the account does not suggest that any of the guides had knowledge of the country east of Wynbring, or the area surrounding Lake Torrens.

232    While Giles’s expedition did meet some “blackfellows and their lubras or wives” closer to Lake Torrens, including around Stuart Creek Station (between the northern tip of Lake Torrens and the southern part of Lake Eyre (South)), there is no information regarding their identities or country. In May 1875, Giles’ return expedition set out south to Port Augusta, and then northwards immediately to the west of Lake Torrens, before retracing the former route. There is no mention in the account regarding local Aboriginal people.

Curr – 1886-7

233    In 1886-7, EM Curr published a four volume study, “The Australian Race”, including a map of “Continental Australia” depicting Lake Torrens marked with numbers which referred to the tribes which were cross-referenced under such numbers in the body of the work. The western side of Lake Torrens is not attributed to any group. To the east of Lake Torrens is group ‘60’. This corresponds to a discussion by Curr under the heading “No. 60 Beltana” of his findings following correspondence with JW Kingsmill and S Gason who reported on the “Kooyiannie” and “Undyamootha”, respectively. Kingsmill reported that (see Curr, 1886:118):

“Koocatho” [i.e., Kokatha] were located “on the west of the “Kooyiannie” [i.e., Kuyani] of the Beltana area [Flinders Ranges]. The extent of country inhabited by the Kooyiannie Blacks is about 100 miles long by 50 wide, Beltana being situated in the south-eastern portion of it. The names of the neighbouring tribes are Koonarie on the north, a much more numerous tribe than this; the Burngala [Barngarla], on the south, now nearly extinct; the Keidnamutha [Adnyamathanha] on the east, a fierce and warlike tribe; and the Koocatho [Kokatha] on the west, of which very little is known. The Kooyiannie, or Beltana Blacks, number now about 50

234    While the correspondents did provide some of the earliest, direct local knowledge of the identities and locations of local Aboriginal people in the area, there has been some criticism about the reliability of this work, including by Willis who notes that Curr’s information is second-hand and its utility is limited in some respects by the quality and consistency of information provided by his correspondents. Allowing for those limitations, it does not provide any particular light on the occupation or use of Lake Torrens by any particular Aboriginal group.

East - 1889

235    In 1889, East published material on the Aboriginal tribes in South Australia. The Kokit-ta (Kokatha) are only briefly referred to. Their country is described as being west and north of the Gawler Ranges. The reliability of his information and sources is questioned by Willis in his Report. It does not advance my consideration as I start from the premise that the Kokatha People occupied the area immediately to the west of Lake Torrens at least by sovereignty.

Helms - 1896

236    Helms produced a paper in 1896, following the Elder Scientific Exploration in 1891 for which he was the naturalist. The paper was produced in part from his notes from the expedition, including groups which he had encountered which did not include the Kokatha, and with information from Billy Weaver, “an intelligent half-caste living at Warrina, but who was born at Port Lincoln”. He says that the “Kukatha joins the Adgjirigna [Antakirinja]”, and extends from Port Augusta in the north to Pooindie, near Port Lincoln, in the south-west.

237    The value of that paper is questioned by the anthropologists. Willis says that the Kokatha appear to have been conflated with the Barngarla and attributed to their territory. In 1981, Sutton suggested that it may have been intended to refer to “normal limits of visitation, not ‘country’ of primary right”, although it is not clear that that is the case.

238    In the circumstances, there is nothing in the paper of particular significance to the present issues.

Howitt and Siebert – 1891, 1898, 1904

239    In the late 1800s and early 1900s, AW Howitt entered into correspondence with Siebert, a Lutheran missionary who collected ethnographic and linguistic data from Aboriginal people and which led to the publication of tribal maps of South Australia. Those publications are considered and summarised in the Willis Report and the Fergie Lucas & Monaghan Report.

240    In 1891, AW Howitt published a tribal boundary map of the area to the east of Lake Eyre, based on his previous field experience with an inland exploration expedition with Tolmer in 1859, and the rescue of King from the Burke and Wills expedition in the north-east in 1861. This map shows the Kuyani eastern boundary as a line between Lake Eyre and Lake Torrens, the “Yandiarunga Tribe” west of Lake Eyre and just to its south, and a separate, bounded but unnamed area in the south-west corner of the map in the vicinity of the claim area.

241    Howitt subsequently received a map showing the tribes of South Australia from Siebert in 1898 and the boundaries between them. Relevantly, that map depicts the Wirangu on the western side of Lake Torrens, the “Kujani” on the northeast side of Lake Torrens north to Lake Eyre South, and the “Parnkalla” on the eastern side of the Eyre Peninsula, northeast past Port Augusta to the south eastern side of Lake Torrens and abutting the “Kujani” on the north. The “Kukata” are shown in the northern half of Lake Gairdner northeast of the Stuart Range and ranging to the west as far as Fowler’s Bay.

242    In due course Howitt published an updated tribal map in 1904 in “The Native Tribes of South-east Australia: Victoria”, with the Wirangu on the western side of Lake Torrens and the Kokatha further west although Willis observed that in placing the Wirangu to the west of Lake Torrens, Howitt may have been confused in respect of the area between the Wirangu and the Kokatha.

243    The same year, Howitt and Siebert also jointly published a paper containing a map of Aboriginal regional legends, without boundary lines indicated. The map shows the Kuyani, Parnkalla and Kukata in approximately the same positions, with the Kukata placed to the north-west of a conjoined version of Lakes Gairdner, Everard and Hart, and south of the Stuart Range. However, there is no Wirangu or other group shown between Lake Gairdner and Lake Torrens.

244    While this may indicate some uncertainty as between the authors about the group immediately to the west of Lake Torrens, it does not clearly place any applicant group in that area and is not strong evidence of any applicant group having rights and interests in Lake Torrens by virtue of their proximity to the western shore of the Lake.

Mathews – 1900

245    In 1900, RH Mathews, a surveyor by profession, produced a map and paper with the aim of determining the boundaries of the country occupied by certain aggregates of tribes which he called ‘nations’ possessing the same divisional names and practicing similar initiatory rights. He relied on his own observations and inquiries in the field (particularly his travels as a licenced surveyor, said to be limited to south-eastern South Australia (Elkin, 1975)), an analysis of available literature, and correspondence with local, non-Aboriginal, informants including pastoralists, police and missionaries.

246    Relevantly, Mathews describes the ‘Parnkalla Nation’ as the largest nation in South Australia, which he divided into ten communities, three of which are ascribed to the areas around Lake Torrens and which are reflected in his map. The principal tribes for the community on the south of Lake Torrens and apparently stretching up towards the Lake and along its south-eastern shore include the Parnkalla; the principal tribes around the northern tip and north-eastern shore of Lake Torrens are the Kooyeeunna [an alternative name for Tindale’s Kujani or Kuyani]; and the western shores of Lake Torrens are ascribed to a community described as the “Hillary, Kakarru and Yallingarra”. The “Kookatha Nation” is to the west of the “Hillary, Kakarru and Yallingarra” community of the Parnkalla Nation. It encompasses all of Lake Gairdner and stretches west to the Ooldea Ranges, south-west to encompass Streaky Bay and Fowlers Bay, and north-west to the Stuart Ranges.

247    In respect of the western side of Lake Torrens, Mathews said:

Touching the Kooyeeunna about Red Lake, and extending thence southerly down the western side of Lake Torrens is occupied by the remnants of the Hillary, Kakkarurra, Yallingarra and other friendly tribes, meeting the northern limit of the Parnkalla [Barngarla] and Nauo

…

Lying to the west of the Parnkalla [Barngarla], Hillary, and Arrabuna Nations, the country is occupied by several tribes, including the Kookatha [Kokatha]…The Kookatha [Kokatha] tribe extends from the Stuart Range, taking in Lake Phillipson, Mr Eba Station, Wilgena Station, Mount Finke and Lake Bring.

248    Matthews’ work is acknowledged by Fergie Lucas and Monaghan to have inherent limitations in terms of the correspondents’ variable knowledge, interest, linguistic capacities and attitudes towards Aboriginal people. Nonetheless, it is described by them as ‘the first and best window we have onto Aboriginal territoriality in these parts of South Australia for the late nineteenth century’.

249    There was some debate about what was meant by the “Hillary, Kakkarurra and Yallingarra” tribes, and whether the peoples in this area were influenced by Lakes Society or Western Desert Society cultures. By way of example, Fergie Lucas and Monaghan suggested that, based on advice from TE Hogarth (one of Mathew’s informants), the male initiation sequence of groups in that area suggests a Lakes Society system. In contrast, Willis, in reliance on Howitt’s 1904 map and Tindale 1928, suggests that “Hillary” was intended to refer to the Wirangu People, and observes the contemporary association of Wirranga [Wirangu] and Kokatha People: see e.g. Draper notes of interviews with the Starkeys/Wright of 10 December 2006.

250    It is not necessary to consider those issues in any detail. I do not regard the map and paper as probative in any material way of any one of the applicant groups holding native title rights in the area immediately to the western side of Lake Torrens, or on Lake Torrens itself. Given the decision in Kokatha Part A, I am unable to ascribe any real significance to the reference to “the Hillary Kakkarurra, Yallingara … tribes” to the west of Lake Torrens if it excludes the Kokatha People.

Frazer – 1910

251    Sir James George Frazer was a Professor of Social Anthropology at the University of Liverpool and a Fellow of Trinity College, Cambridge. His 1910 publication, “Totemism and exogamy: A Treatise on certain early forms of superstition and society” included a map on the distribution of the Native Tribes of South Australia which appears to be based on Howitt’s 1904 map and which places the “Kukata”, “Kuyani”, “Wirangu” and “Parnkalla” in the same locations.

252    Similarly, it is not strong evidence of any applicant group having rights and interests in Lake Torrens by virtue of their proximity to the western shore of the Lake, or indeed to any of the shores of the Lake.

Fenner – 1936

253    In 1936, Fenner produced a paper following his participation in the Adelaide University’s tenth Anthropological Expedition to Central Australia during May 1934, including a map of tribal boundaries in northern South Australia and the route of the 1934 trip along the eastern side of Lake Torrens and further north to the east of Lake Eyre. The map places the Kujani to the north-east of Lake Torrens and the Kukata to the north-west. Lake Torrens is not clearly placed within the territory of any group.

Davidson – 1938

254    In 1938 DS Davidson, an Assistant Professor of Anthropology at the University of Pennsylvania, published “A Preliminary register of Australian tribes and hordes” and “An Ethnic map of Australia”. He listed the Kuyani and their location as follows:

KUYANI            T    KOONARIE, KOOTEEUNNA,

KUYANNI                KOOYIANNIE, KUJANI.

KWIANI                N. and E. of L. Torrens.

A. AJNYA-KUYANI        H    Foothills near Leigh’s Cr. S. to Beltana

B. WARTA-KUYANI        H    Borders of L. Torrens (1938a, page 77)

WARTA, PLAINS

255    I do not consider his material as advancing the present inquiry.

Elkin – 1930, 1938, 1944

256    Elkin collected field data concerning the locality of Aboriginal groups from senior Aboriginal informants in 1930. The notes which were extracted and summarised by Fergie Lucas and Monaghan in their Report support a Kuyani connection with the north-eastern side of Lake Torrens, south to around Nilpena Station, a Barngarla connection with the south-eastern side of Lake Torrens, and the Kokatha with areas to the west of the south-western side of Lake Torrens about Lake Phillipson, Lake Everard and Nilpena. That is broadly consistent with the findings of the Court in the three determinations referred to.

257    The First Applicant also relied on subsequent publications by Elkin. Over three years in the journal, Oceania, Elkin addressed the social organization of South Australian Aboriginal groups including the “Kwiani” (Kuyani). In 1938, Elkin noted the location of the Kwiani as:

The Wailpi (or Adnya-matana) of the Flinders Range, the Kwiani on their west, the Yadliaura on their east, and the Pankala (Bangala) on the south and west of Lake Torrens and the northern part of Eyre’s Peninsula

258    That description is reflected in Elkin’s 1938 map, which further designates a larger area which includes all of Lake Torrens and the area north of Lake Torrens to Lake Eyre, the Flinders Ranges, the Spencer Gulf and Lake Gairdner as sharing the same kinship system. There is no group specifically placed between Lake Torrens and Lake Gairdner. The “Kokata” are located south of the Stuart Ranges and west of Lake Gairdner in an area which is designated as having a different kinship system.

259    Elkin subsequently published a book in 1944 or 1945 entitled “Aboriginal men of high degree” including a map of Australia delineated to indicate circumcision and subincision practices. While it does not include any borders between the different groups, it broadly locates the Kokata to the west of Lake Torrens between Lake Torrens and Lake Gairdner, the Pankala to the south west of Lake Torrens and the Wailpi to the north-east of Lake Torrens.

260    It is not necessary to consider the varying descriptions of the areas around Lake Torrens in detail. They may be a reflection of the particular matters being considered by Elkin in those reports or they may also reflect the relative and agreed increase in the population of Kokatha People living in the area to the west of Lake Torrens by the 1940s. They do not indicate that the Kokatha presence extended eastwards into Lake Torrens.

Mountford - 1939, 1944

261    CP Mountford was a prolific recorder or Adnyamathanha culture, especially in the late 1930s and 1940s and certain of his journal writings are summarised and extracted by Fergie Lucas and Monaghan in their Report in respect of the Barngarla People. Relevantly, part of Mountford’s Nepabunna Journal, May 1939 at 79 provides support for Bangala [sic] tribal area including around Nilpena, Parachilna, Hookina, Callioota, Quorn, Willockra, Carrington and Port Augusta, to the south-east of Lake Torrens. They also refer to records made in September 1944 by Mountford during a trip to the Flinders Ranges which said:

The two Richards belonged to the Bangala [Barngarla] tribe, whose country extended northward to the Kweini [Kuyani] boundary, westward to Lake Torrens, eastwood to the foothills of the Flinders Range, and southward to Yadlamulka, although they said another Bangala people joined them and extended southward to Pt Augusta and Whyalla.

Tindale – 1938-9, 1940

262    Following the Harvard-Adelaide Universities expedition of 1938-39 Tindale produced a 1940 map and paper entitled “Distribution of Australian Aboriginal tribes: a field survey” in which he attempted “...to give a list of all established tribes, and, where possible, a concise account of the known boundaries and precis of natural tribal displacements that have occurred.”

263    Tindale worked with a number of people of Barngarla descent during the expedition. His journals, as extracted and summarised in the Fergie Lucas & Monaghan Report, include a description of the location of Aboriginal groups around Lake Torrens. One of his sketches, which depicts sub-groups of the Barngarla shows the area around Lake Torrens. “Kokata” country is shown joining the western edge of Lake Torrens just north of the Carrapateena Arm. A boundary between “Bangala” [Barngarla] and “Kokata” is indicated as bisecting Lake Gairdner and Island Lagoon before reaching Lake Torrens. “Bangala” are shown on the south-west side of Lake Torrens abutting a “Kokata” boundary north of Oakden Hills and Yeltacowie. The “Warta Bangala” are located on the south east side of Lake Torrens, seemingly abutting the “Kujani” [Kuyani]. “Kujani” country is shown surrounding northern Lake Torrens on both the east and west.

264    On June 1939, Tindale recorded an account of “Kokata” territory from Emma, a Kokata woman by her own description, whom Tindale estimated to be approximately 58 years of age, and sketched a map based on that description. This places the western boarder of Kokatha country as running along the western shore of Lake Torrens from just south of the northern tip of Lake Torrens south to the Carrapateena Arm, before heading west to bisect Lake Gairdner.

265    The published map following the Harvard-Adelaide Universities expedition shows Lake Torrens bisected just north of the Carrapateena Arm, with the areas surrounding the northern half of the Lake entirely within Kujani country and the areas surrounding the southern part of the Lake entirely within Pankala country. The portion of Tindale’s 1940 “tribal map” shows a third area attributed to the Kokata which borders Lake Torrens at the Carrapateena Arm only.

266    Tindale published the results of the Harvard-Adelaide Universities anthropological expedition in 1940, including the following descriptions:

Kokata, ‘Kukata

    Loc.: At Tarcoola, Pimba and McDou[g]all Peak; west to Ooldea, north to Stuart Range and Lake Phillipson (southward migratory movements were in progress before 1850. Earliest historic boundaries are indicated on map).

Alt.: Kukatha, Kukata, Kokatga, Koogatho, Kugarda, Koogurda, Koocatho, Kokit-ta, Kukataja, Maduwonga (Arabana term), Madutara, (Antakirinja term).

…

‘Kujani

    Loc.: From Parachilna north to Maree on west side of Flinders Range; around north end of Lake Torrens, west to Turret Range, north-east to Murnpeowie.

    Ref.: Kuyanni, Kwiani, Kwiana, Kooyiannie, Cooyiannie, Kooyeeunna, Kooteeunna, Koonarie.

267    The First Applicant observes that Tindale specifically excluded Lake Torrens from his description of Kuyani country, although it is not said that he assigned it to the Kokatha People or to any other group. In his consideration of Tindale, Sutton said that he was unable to locate any source for this particular opinion, and that Tindale was the only person ever to assert this view categorically. He said that it was completely unlikely that a feature such as Lake Torrens would be lacking in traditional owners under classical conditions. At least in respect of Lake Torrens, that was a view which was held by all of the expert anthropologists.

Capell – 1963

268    Tindale’s descriptions were supported by A Capell, a pioneer of Australian linguistics in his 1963 publication on the state of knowledge of Aboriginal languages. In his published Introduction, Capell noted that he relied heavily on Tindale’s 1940 map for the most accurate locations possible for the various languages’ and in describing the location of the “Gugada” and “Gujani” he relied on the exact description of Tindale’s “Kokata” and “Kujani”.

269    Tindale’s description, as relied on by Capell, does not support any particular applicant group having rights and interests in Lake Torrens itself.

Comment

270    The review of that material to this point does not point in any significant way to supporting any of the three Applicants’ claims.

271    If one starts with the premises of the three claim groups at settlement occupying the areas as determined (and so virtually all the areas around Lake Torrens), until the work of Mountford and Tindale in the late 1930s and early 1940s, the material does not focus on the “occupation” or the exercise of traditional laws and customs with respect to the area of Lake Torrens, including Andamooka Island, by any particular group of Aboriginal people.

272    Although, as noted, the terrain of Lake Torrens is a very harsh and confronting one, Sutton said (uncontroversially, according to the other expert anthropologists), that it was very unlikely that such a geographical feature would not attract or have Indigenous traditional owners under classical conditions. Nevertheless, the ethnographic observations to that time do not record any instance or observations indicating in any persuasive way who those traditional owners might have been.

273    If there is any relevant focus to be gained from that material, it is that the movement of the Kokatha People eastwards towards Lake Torrens (accepting that by settlement they were the traditional owners of the area immediately to the west of Lake Torrens) was an ongoing one.

274    There is some ethnographic material from the next decades which places the Barngarla People on the western side of Lake Torrens up to about the Carrapateena Arm, and the Kuyani People on the western side of Lake Torrens north of the Carrapateena Arm, including those adjacent parts of the Lake itself (Pratt 1967, Elkin 1976), although Elkin’s later work also places the Kokatha in that vicinity. To the extent that such material would exclude the Kokatha People as the traditional owners of the area to the west of Lake Torrens, both north and south of the Carrapateena Arm, it must be given no weight for the reasons already given.

275    The later ethnographic and related material, not surprisingly, has a focus on the mining exploration project then being developed and undertaken at Roxby Downs and in Olympic Dam, some distance to the west of Lake Torrens.

More Recent Ethnographic and Historical Material

Platt – 1967

276    J Platt, a linguist, completed field work in 1966 at Davenport, Port Augusta and Koonibba, followed by further field work at Andamooka, Port Lincoln and Port Augusta. In 1966 he worked with ten informants whom he subsequently described as being in their sixties, their seventies or as “elderly” (1977 publication). He is described by Sutton as an important authority in this case.

277    He describes Kokatha country as the same area as that shown on Tindale’s map, noting in his 1967 publication that:

Every Kukata who was questioned was well aware of the area in which his people had lived- Mt. Eba, Bon Bon, Pimba, Coober Pedy being mentioned.

278    Subsequently, in 1972 he added:

It would seem that the area occupied by the Gugada people, when first they came into contact with Europeans, centred on Mount Eba, and extended to Kingoonya, Tarcoola, Coober Pedy … and possibly as far as Ooldea.

279    He also refers to a 1966 map by Wurm, Hale and O’Grady. That map clearly places the northern half of Lake Torrens and its shores, including that Carrapateena Arm, within the borders of Kuyani country, and the southern part of the Lake and its shores within Pangkala country.

Elkin - 1976

280    In 1976, Elkin published a paper following careful study of Mathew’s informant correspondence, criticising certain of his findings in respect of intermarrying matrilineal moiety systems and in some cases the assumptions of the Lakes Society practices in the underlying research which (he says) led to mistakes regarding the Kokatha. It is not necessary to refer to that analysis in detail except in so far as it touches on the location of Indigenous groups.

281    Elkin observes that Robert Bruce of Coondambo pastoral station, on the north of Lake Gairdner, one of Mathew’s informants, called the tribe around Coondambo the “Geebera”. He says with reference to further correspondence to Mathew from AW Cocks of Wilgena Station 80 miles west of Coondambo and his own field notes made in 1930, that this was in error, as the term “Geebera, Gibera or Giberie was not a tribal name. It was the term for the cicatrice pattern on the backs of fully initiated men. The tribe was the Kukata (Kookata), which extended to Ooldea in the west and north almost to the Everard Range.”

282    In respect of the location of the Kokatha and the Wirangu, Elkin also cites an earlier paper he authored, AP Elkin “Kinship in South Australia” Oceania, Vol. X, 1939, No. 2 at 203, in which he said:

These two tribes were respectively north and south of a “line” from Ooldea to Lake Gairdner. The former extended north to the Stuart Range and somewhat indefinitely to the west (the Great Victoria Desert) and to the north-west (the Everard Range and beyond). Frequent migration in a southerly direction for decades made the tribal boundaries indefinite

283    Elkin also found that the correspondence from Mathew’s informants provided information in relation to the “drifting and migrating” of indigenous groups in the region.

The correspondence shows clearly that the Aboriginal groups in the districts occupied by the white man had already died out or were dying out and that their places were being taken by groups from the north and north-west. According to one of Robert Bruce’s Station Aborigines, the so-called Geeberas who drifted into Coondambo in 1880 and later, were part of a numerous tribe “running well back towards Western Australia”. JL Higgins with 40 years’ experience among the “coast” Black referred (September, 1899) to a small tribe “who came from southwest of the Musgrave Range, forced on to the coast for want of water during dry summers

…

Such migratory reaction to severe drought was obvious to me when in the Musgrave and Ooldea regions in 1930. Likewise. R. T. Maurice, writing (July 5, 1900) from Yalata, Fowler’s Bay, said that nearly all the “original” coast blacks had died out, and that the “present day (1900) ones” had come in from “the sand hill country hundreds of miles back”, from Boundary Dam and “say 100 miles” north and then east to Lake Phillipson. They could all speak the same language, but “the real original coast blacks” could not (July 7, 1900). On the other hand, the immigrant Aborigines used the coastal (Wirangu) talk, but if any of them visited their own country… they changed to their own language on entering that country, and appeared to be very proud of it.

…

Clearly, movement of Aboriginal groups from the Great Victoria Desert region and the ranges further north was in process since European settlement began, and indeed before that if the impression I received in 1930 be correct. Severe droughts and the hard nature of the whole region would have been the causal factors. Two main lines of movement are indicated: one from the Oodnadatta-Everard Range districts south via the Stuart Range and the west of Lakes Torrens and Gairdner to the Gawler Range and thence to the coast – the Wirangu migration followed by the Kukata.

284    While I accept that Elkin’s observation that in some cases the Kokatha appeared to fill any void created by the decline of other Aboriginal groups under pressure from colonial expansion, there is some suggestion that Elkin’s description of migratory movements is mistaken. Willis says that the influx of Kokatha into Coondambo commencing in 1880 was indicative of seasonal movement following traditional travel routes but that contemporary non-Aboriginal observers were relatively new to the region and had no comparative observations on which to interpret the nomadic, drought and wet season responsive movements of desert hunter-gatherers in patterns that might only repeat once a decade or even a generation (referencing Tindale 1940 and Cane’s 2006 review of Elkin’s 1930 data).

285    It is also appropriate to note that Elkin also referred to his experience in the Musgrave Ranges in 1930 when asking about a man’s djugur, Dreaming or his “big” ritual, Elkin said the men performing a groups’ cult totem:

… had migrated from the north and north-west and in performing their Djugur ritual, were sanctifying the land, the country to which they had come, and were lengthening the mythological path. They were “singing their song” in a strange land, and thereby making it “their” land

286    The process of “sanctifying the land” through ceremonies, was also described by Willis in his Report as being a component of the Western Desert cultural system that allowed for individual and family movements as required over time to adjust for demographic pressures in one of the most arid regions of the continent, and to lawfully extend the spatial application of custodianship of sites, country, and resources.

287    While that may provide context for the formation of borders of Kokatha country, the NTA only provides for the recognition of native title rights and interests that are found to have existed in a specific area at sovereignty. It does not recognise traditional post-sovereignty territorial expansion.

Kokatha People’s Committee - 1981

288    In July 1981 the Kokatha People’s Committee (KPC) authored a report which indicated that it was intended to be “an objective statement of the affairs of the Kokatha Committee up to the 2nd of July, 1981”. It describes the reason for the formation of the KPC as being to address then present mining operations and the risk of future mining operations in traditional land. It particularly records the KPCs concerns in relation to the mining exploration project being conducted around Roxby Downs – Olympic Dam. That area is said to have “always been regarded as being a place of particular religious significance to the Kokatha. We don’t talk about it very much. It is a place where our old people conducted very advanced initiations and ceremonies. It is a wilyaru ground.” Attached to that report, is a map showing in general terms the traditional area of the Kokatha People running along the western shore of Lake Torrens and stretching north west, including Andamooka township, Kingoonya, and Coober Pedy. It excludes all of Lake Torrens from Kokatha country.

Vachon – 1981

289    In October 1981, Dr D Vachon produced a report for the KPC in response to the KPCs concerns that the activities of Roxby Mining Services on its mining lease on Roxby Downs Station would result in the destruction of sites of cultural significance to the Kokatha people. Dr Vachon conducted a field survey with information from Max Thomas, Jeffery Brown and Richard Reid.

290    He recorded from them the extent of Kokatha country as being to the western shore of Lake Torrens.

291    He recorded several archaeological sites and 14 ethnographic sites in the Olympic Dam Area as having possible significance, none which were within the present claim area. He noted that none of these sites had been visited for cultural purposes for at least 20-25 years, and in summary under the heading “Assessment” he said:

The men who made up the field party were selected by the men themselves as being most knowledgable of the study area. In my opinion, unless other people can accompany us on a second trip, we will be forced to indicate to RMS archaeological only – places the KPC would want no mining on the basis of protecting a forgotten heritage.

    Mythological knowledge is worse than thin, it is non-existent among these informants. The men themselves know that others will need to be involved if the myths are to be re-learned.

Unlike these people who still retain their religious traditions, these men…

(1)    Sang no songs during the trip – a constant practice in the North-West, for instance. They admit they do not know them.

(2)    Know no Aboriginal place names.

(3)    …

(4)    identify wilyaru as the only “dreaming”. The term seems to be used in a generic fashion for any site.

Since the songs and place names are not known, there are no “ethnographic sites” to protect. Without the place names, it becomes almost impossible (but not entirely) to elicit information on the area from others.

    That is not to say that no-one knows the country. But unless a process of re-learning begins immediately, whatever knowledge of the area remains will be lost within the next few years.

    These men know that the situation is desperate, but have little confidence that the younger people share their enthusiasm. In truth, only Richard Ried (sic, Reid) and, maybe, Max Thomas are serious in re-learning their heritage. Both are willing to consider having white people who know anything teach them the country.

Tregenza and Hagen – 1983

292    In or around February 1983, Tregenza and Hagan produced a report for the KPC entitled “Sites of Importance to Aboriginal People within the Olympic Dam EIS Area” based on fieldwork they had conducted in January 1983, and informants who identified as Kokatha, Pitjantjatjara, Yankuntjatjara and Antakirinya.

293    That report concerns the land on the north-western side of Lake Torrens but does not directly concern the claim area.

294    Hagen recorded a number of sites associated with the mythology of the EIS area, which were said to be based on two major groups of mythic beings passing through the area. Firstly, the Wati Kalta (sleepy lizard) and Wati Angata (frill necked lizard) (Wilyaru), and secondly the Kunkarankara or “Seven Sisters”.

295    Under the heading “Kokatha or Kuyani” concerning the affiliation of Aboriginal groups with the Olympic Dam Area, Hagen writes:

The limited time available to me has made it impossible to arrive at an unchallengeable conclusion on the matter. It is however worth nothing that all Aboriginal people approached on the question agreed that Kokatha territory encompassed the entire EIS area. The eastern boundary of Kokatha territory was invariably given as the entire western shore of Lake Torrens.

Jacobs - 1983

296    In the early 1980s, Jacobs carried out field work in Port Augusta for a master’s degree in geography on the subject of the land rights movement in that town and region which led to her 1983 publication “Aboriginal Land Rights in Port Augusta”. Three of the maps in that publication were tendered by the First Applicant, they are:

(1)    Map 7:1 “Varying Individual Territory Concepts held by Adnjamathanha people”;

(2)    Map 8:1 “Territory Concepts held by a number of Kokatha individuals”; and

(3)    Map 8:2 “Kokatha Territory according to Collective Statements issued by the KPC”.

They represent the personal views of country of Adnyamathanha and Kokatha People by depicting a series of borders drawn over maps of South Australia which include Lake Torrens. A subsequent map of South Australia produced by Jacobs in 1986 apparently transposes those borders onto the same map as is discussed in the Sutton Report.

297    The individuals who gave their personal views of country in each of the maps are not listed by name, but are described broadly in terms of their occupation, the place or city in which they or their kin reside and approximate age.

298    There are five, broadly concentric, borders of country on map 7:1. Each of them is drawn to include Nepabunna and the Flinders Ranges, or part of it, as Adnyamathanha country. From the smallest area of land to the largest area of land which is designated as Adnyamathanha country, those borders are attributed to:

(1)    “Initiated man. Living in outstation camp, near Nepabunna”;

(2)    “Middle-aged female. Lived most of life away from Flinders in Children’s Home. Politically active. Kin at Nepabunna”;

(3)    “Chairman of Adnjamathanha Land Rights Group. Initiated man. Lives Port Augusta. Kin at Nepabunna”;

(4)    “Heritage Unit Ranger. Boundary follows course of populat/public mythology. Living Port Augusta. Kin at Nepabunna”; and

(5)    “Young man. Living Port Augusta. Kin at Nepabunna”.

299    There are also five borders on map 8:1. They are attributed to:

(1)    “Aged Pangala woman. Lives Whyalla. Participates in Kokatha Land Rights Action”;

(2)    “Initiated man. Chairman KPC [Kokatha Peoples Committee]. Prime KPC informant”;

(3)    “Aged Kokatha woman. Mother of KPC Chairman. Prime KPC informant”;

(4)    “Middle aged man. Born Gawler Ranges. Vice-Chairman KPC. Lived Koonibba”; and

(5)    “Young woman. Born Gawler Ranges. Taken away from parents, reared in Adelaide. Recently returned to Port Augusta”.

300    Map 8:2 depicts two borders drawn to encompass land on the west of Lake Torrens. It does not include a key, but I infer from the title of that map that the borders were drawn based on statements made by the KPC.

301    The First Applicant submits that the maps, which are based on information from Kokatha and Adnyamathanha informants, shows Kokatha country going along or into the western side of the Lake and Adnyamathanha country ending on the eastern side of the Lake. While each of the borders of country are drawn broadly and do not attempt to follow geographical features in detail, I accept that the borders drawn by Adnyamathanha people all encircle an area to the east of, or to the eastern border of, Lake Torrens and all of the borders drawn by Kokatha people encircle an area broadly to the west of Lake Torrens but in some cases include small parts of the side of Lake Torrens.

302    I have not placed substantial weight on this to determine the “at sovereignty” borders for a number of reasons. Firstly, this map was produced in the 1980s from contemporary, but not individually identifiable, sources and did not seek to establish tribal boundaries at sovereignty. Secondly, Sutton noted in his consideration of the joint map that the informants gave Jacobs place names and that it was Jacobs who drew the lines to enclose the places they described; and, as outlined in the Sutton Report, none of the twelve (or so) individuals included Lake Torrens per se in their countries in their interviews with Jacobs (Jane Jacobs personal communication May 2015). That was not contested during the hearing.

303    Thirdly, there are also substantial differences between the borders, and land, which are said to be Adnyamathanha country by different Adnyamathanha informants. That is illustrated by the differences in map 7:1 between border 1), which depicts a limited area within the Flinders Ranges some distance on the east from Lake Torrens stretching approximately 150 km from north to south, and border 3) which shows Adnyamathanha country extending east to the eastern shoreline of Lake Torrens, north to the northern most point of Lake Torrens, north-east to the south eastern part of Lake Eyre and south-east to include Lake Frome and the edge of the map, and south along the shoreline of Lake Torrens, continuing south to Whyalla, Port Pirie and the Spencer Gulf, and from there sloping north-east to the border with New South Wales and the edge of the map.

304    A similar observation may be made in respect of what is said to be Kokatha country. On map 8:1, border 3 encircles an area to the north of Lake Gairdner west to the northern half of Lake Torrens, border 4 does not place Kokatha country next to Lake Torrens but instead encompasses only the Gawler Ranges to the south-east of the Lake, and border 2 includes almost the entirety of both of these areas, indicating that Kokatha country is close to 500 km from east to west with the eastern side being the western shoreline of the Lake, the northern border being approximately 200 km north of Coober Pedy and the southern border encompassing northern parts of the Eyre Peninsula. All of the lines on the maps are in broad lines rather than apparently responsive to particular geographical features. I do not think they can be used other than for giving a general picture. In my view, that general picture so far as presently relevant is consistent with the determinations in Kokatha Part A and Adnyamathanha No 1, but does not advance the critical issues.

Hagen and Martin – 1983

305    The First Applicant also relied on the 1983 report by Hagen & Martin (1983), “Report on Kokatha interests in sites and land in the vicinity of the Olympic Dam Mining Project”. The cover page says the document is confidential, but it was not marked as confidential when received. It contains extracts from a transcript of an interview, apparently taken as part of a women’s survey. The date is recorded as 14 June 1983 and the names of 7 participants, including Max Thomas, whom I have taken to have been referred to as “M” in the transcript. He is interviewed by “J” whom I have taken to be Jean Aitken, although nothing turns on that.

306    The interview appears to have occurred at Phillips Ridge/Pine Ridge, which is south-west of Lake Torrens. During the interview, in response to the question “where does the Kokatha country finish – on the other side of Andamooka?”, Max Thomas replies “On the lake…Lake Torrens”.

307    Relevantly,

J    -    And where does the Kokatha country finish – on the other side of Andamooka?

M    -    On the lake

J    -    Lake Torrens?

M    -    Lake Torrens

J    -    Around the boundary edge of it?

M    -    That’s the boundary of the Kokatha people

308    The use of the word “on” does not designate a clear boundary. The First Applicant did not maintain that the boundary between Kokatha country and Adnyamathanha or Barngarla country bisected Lake Torrens. Indeed, such an interpretation would not be consistent with evidence given by the Kokatha witnesses. Nor do I understand that the “boundary edge” is referring to the eastern boundary. That is so different from what Hagen recorded in the Tregenza and Hagan report of the same year to the KPC that, if that were the suggestion, it would have prompted some follow up.

Hagen – August 1983

309    This is a restricted exhibit, so reference to it is oblique. It is entitled “Mythological Tracks in the Vicinity of the Olympic Dam Mining Venture”. It reports on Dreaming travels through a triangle “bounded loosely” by Lake Torrens in the east, and then to the west. I considered each of the myths referred to. There is no clear indication, with one exception, that the tracks concern an area to the east of the western boundaries of Lake Torrens. One myth concerns the creation of Lake Torrens, including “where the Kokatha and Kuyani meet”. It therefore records a mythological track which has Kokatha associations and concerns Lake Torrens itself.

Hagen – September 1983

310    This is also a restricted exhibit (although it is not clear why), being three pages of a Report by Hagen headed “Kokatha, Kuyani and Arabana Interests in the Olympic Dam Area: Results of the Current Field Survey”.

311    As with other material, it records that “invariably” the direct response to questions about the interests in land was that the western shore of Lake Torrens belonged to the Kokatha and the eastern shore was Kuyani. The focus of questions, in the context of the inquiry, was the Olympic Dam area. The range of informants included Adnyamathanha men, senior Yankuntjatjara men, and Aranda men. Reference is made in responses to the activities of Jack Davis, Dicky Thomas and Max Thomas. The informants included Richard Reid, John Stewart and Max Thomas.

312    There is nothing in that document to suggest that the Kokatha country extended eastwards into Lake Torrens from its western shores.

Berndt – 1964-1988

313    In 1964, Berndt published two maps in “The World of the First Australians” on the distribution of Aboriginal social organisation and kinship systems. They were reproduced unaltered in subsequent editions in 1977, 1981, 1985, and 1988, and were said to be based on the work of Radcliffe-Brown (1930-1) and Elkin (1938/54); etc. as well as, in some circumstances, their own data.

314    A dividing line is shown on the map to the west of Lake Torrens running through Kingoonya, Bon Bon and Mount Eba. To the west, it shows people with generation moieties, including the ‘Gogoda’ people, and to the east including all of Lake Torrens are matrilineal moiety societies, described by Sutton as Lakes societies.

315    Whilst that material cannot be useful to demonstrate a state of affairs inconsistent with the Kokatha Part A determination, it provides no support for the Kokatha claim extending over Lake Torrens itself.

Tunbridge – 1988

316    Tunbridge, a linguistics graduate from the Australian National University who worked with the Nepabunna community in the Flinders Ranges recording Adnyamathanha language wrote a book of stories entitled “Flinders Ranges Dreaming” concerning Adnyamathanha mythology and containing a section entitled “Boundaries” in 1988. She included the following description, as summarised in the 2003 report by the National Native Title Tribunal on the North Lake Torrens Region:

Kuyani country lay between the western edge of the Ranges and Lake Torrens, and north to Stuart Creek [No southern boundary is mentioned here, but on the basis of some comments, it can be put not far south of Parachilna, as on Tindale’s map.] (1988, page 147)

Gara – 1989

317    In 1989, T Gara was involved in the Kokatha Heritage Survey which was undertaken in association with the KPC. The results of that report are carefully outlined in the 2003 report by the National Native Title Tribunal on the North Lake Torrens Region which discusses Gara’s findings in relation to geographic areas described as “traditional Kokatha territory” by reference to historical sources as well as providing analysis of more contemporary sources. The original report was also tendered by the Second Applicant as Exhibit A12. It possibly contains material which is gender restricted. The following is taken from the NNTT report, which is an unrestricted exhibit, so that the non-public sections of Gara are not accidentally exposed. They accord with the Gara – 1989 “The Kokatha Heritage Survey”.

318    In respect of traditional and/or historical Kokatha country, Gara said at 1 and 4 (quoted at 24 and 25):

Kokatha traditionally occupied the vast expanse of sand dune country stretching westwards from Lake Torrens to the edge of the Nullabor Plain. The Kokatha People’s Committee today includes people from throughout the Kokatha lands, including the west coast, Gawler Ranges, Tarcoola, Kingoonya and Andamooka. However, being based in Port Augusta, the KPC’s principal focus of interest is the eastern portion of Kokatha territory, the country northwards from Port Augusta to Andamooka and westwards to the Gawler Ranges and Tarcoola.

…

Ooldea appears to have marked the western limit of the Kokatha; this important permanent soak traditionally belonged to the Kokatha but was shared with the Wirangu, Ngalea and other neighbouring tribes. (Bates 1921:76; Tindale 1974; 215). Kokatha territory extended eastwards to the Gawler Ranges, Lake Gairdner and the western side of Lake Torrens. (Provis 1879; Kingsmill 1886; Howitt 1904; Black 1920) and northwards to the Stuart Range, Lake Phillipson, Mt Eba and Mt Finke (Mathews 1900; Wood Jones 1925).

319    Gara noted that:

Historical and ethnographic accounts provide a general description of Kokatha territory but it is likely that tribal boundaries were never clearly delineated. As Berndt (1959) pointed out, boundaries were somewhat fluid throughout the Western Desert, a reflection both of the erratic nature of food and water resources in the region and the close kinship, ceremonial and religious links between neighbouring groups.

320    Gara, citing Tindale, stated that the “northern end of Lake Torrens and the western side of the lake as far south as Andamooka belonged to the Kyani”. And that the Hercus “1974 and 1975 maps show the area between Lake Gairdner and Lake Torrens as being Kuyani,” however, the Austin, Ellis and Hercus 1976 map was similar to Tindale’s 1974 map showing “the north-western side of Lake Torrens belonging to the Kuyani and the south-western side to the Desert people i.e the Kokatha” (as noted in the NNTT Report at 25).

321    Gara reported that the debate about Kokatha territory had intensified in the 1980s in the context of mining developments in the region. He referred to Sutton’s research and 1981 report that “questioned the applicability of the concept of tribal boundaries to the desert situation” and concluded only that the

[l]iterature suggests that four linguistic groups are associated with the wider region … These are the Kwiyani in the east, Kukata in the west, Arabana in the north and Parnkalla in the south.

322    Further references on location cited by Gara were Hagan and Martin (1983), as stating that the “…Roxby Downs area belonged exclusively to the Kokatha”, and Berndt (1983) Olympic Dam Project report as:

Tribal boundaries in the region were flexible, a reflection of the interaction between the Kokatha, Kuyani and Arabana in prehistoric times. He concluded that although areas to the north and north-east of Olympic Dam may have been areas of shared responsibility for the three groups, the Olympic Dam area itself traditionally belonged to the Kokatha.

323    In the Gara report (as summarised by the NNTT), Gara noted that “disputes” between Kokatha and some neighbours over territorial boundaries and the threat to Aboriginal sites by mining and other developments influenced the report’s focus on the country northwards from Port Augusta to Andamooka to establish the eastern boundary. He also mentioned that his instructions from the KPC and the committee’s contemporary interests led him to focus his research on particular geographic areas of “traditional Kokatha territory”.

324    I have separately considered the Gara survey. Its aims included the identification of sites of significance to the Kokatha people in traditional Kokatha territory. Its focus, through the KPC, was the eastern portion of Kokatha country. There was a focus on identifying the eastern boundary, prompted in part by disputes about its extent. It involved fieldwork with Kokatha elders and other Kokatha people between 1984 and 1988.

325    Section 5.2 entitled “Kokatha boundaries” reviews ethnographic material (much of which is referred to above) as well as the Kokatha informants who (it is said) “regard their eastern boundary as being the western side of Lake Torrens”. Those Kokatha informants included those who had worked in the Lake Torrens – Lake Gairdner area (at p 13). There is no reference to any significant site in or immediately adjacent to the western edge of Lake Torrens, including there being no reference to any significant site on Andamooka Island, although reference is made to sites somewhat west of there on Arcoona Plateau, and at or near Coorlay Swamps and Pernatty Lagoon and near Andamooka Homestead. It is noteworthy that those sites are recorded, because their relative proximity to the western side of Lake Torrens suggests that, if there were significant sites on or immediately adjacent to Lake Torrens, there is no reason why they would not have been identified.

326    Reference is also made (at p 12-13) of important Dreaming tracks and numerous “minor” tracks passing north-south “through the country west of Lake Torrens” with the observation that the Kokatha use these tracks “to define the eastern border of their land”. That section of the report notes that the KPC are reluctant to divulge information about ceremonial sites on the Arcoona Plateau unless they are threatened by mining activities, but that the KPC had a high priority to document mythological sites in the Lake Torrens – Andamooka area.

327    What of the more recent material?

Horton – 1994

328    The First Applicant also relies on a map in the “Encyclopaedia of Aboriginal Australia” edited by Horton in 1994, based on all published resources available at the time. It identifies Kokatha country abutting the western shoreline of Lake Torrens north form the Carrapateena arm, Kuyani country abutting most of the eastern shoreline of the Lake and Barngarla having country on both sides of the Lake south of the Carrapateena arm. The Encyclopaedia contains an entry for Kokatha as:

People of the Desert region west of Lake Torrens, neighbours of Antakarinja, Arabana, Kuyani, Banggarla, Wirangu, Ngalea, Nakakao and Yankuntjatjara.

329    The entry for the Kuyani is:

People of the Spencer region east of Lake Torrens, neighbours of the Dhirari, Dieri, Adnyamathanha, Banggarla, Kokatha and Arabana peoples.

330    The map also includes the disclaimers that the map is “not suitable for use in native title and other land claims” and “Boundaries are not intended to be exact”.

331    That material is consistent with the Kokatha Part A determination, but does not usefully inform the First Applicant’s claim over Lake Torrens.

Willis and Abdel-Azziz -1996

332    Willis and Abdel-Azziz were engaged to conduct a Work Area Clearance on a proposed exploration at Lake Torrens south, to determine if there are any sites of significance to Kokatha traditional owners in the vicinity of the proposed exploration. As the first access was on Lake Torrens Station (on the south eastern edge of the Lake), where it is suggested the proposed exploration drilling was to take place, I do not think that the presence of Kokatha people there, or their interest in that site, is of particular significance. The access appears to have been through land now recognised as held under either the Barngarla No 2 determination or the Adnyamathanha No 1 determination.

333    The second day of field work focused on areas on the western side of Lake Torrens. It is noted (at p 4) that a particular dreaming defined “the Kokatha country immediately to the west of Lake Torrens”.

334    That report identifies two important Tjukurpatjina (Dreaming) tracks that pass through Lake Torrens south: the Wati Wilyaru and the Seven Sisters. It records that the Lake is restricted men’s area (as also recognised by the women present). I have not here recorded the details of those two Dreaming tracks, and of a further Dreaming of the Wati Nyiru, as the details may be restricted.

335    In its open sections, the report says the Seven Sisters and the Wati Nyiru define the Kokatha country immediately to the west of Lake Torrens, but it is clear that the Dreamings of Wati Wilyaru and Wati Nyiru also relate to parts of the Lake itself.

336    For completeness, I record that the Fergie Lucas & Monaghan Report also considers and extracts various descriptions of Aboriginal areas on the eastern side of Lake Torrens in relation to this matter and in various other Adnyamathanha cases. That material has also been considered in the Ellis Report and the Ellis Supplementary Report.

337    The material since about 1980 also does not provide any sound basis, absent the interpretive “insights” (or contentions) of the experts about the traditional owners of Lake Torrens itself.

338    It is significant, in my view, that the KPC in 1981 depicted the Kokatha People’s traditional area as extending to the western side of Lake Torrens but not east into Lake Torrens itself, and the Kokatha informants to Vachon in 1981, and to Tregenza and Hagen in 1983, and to Gara between 1984 and 1988 presented the same picture.

339    Equally significant is Vachon’s assessment of the level of mythological knowledge of the Kokatha People in the area to the west of Lake Torrens at that time. I note that Tregenza and Hagen were given more detail of the Wati Kalta and Wati Angata mythic beings and the Kunkarankara dreaming stories passing through that region. He was given no suggestion that their passage or those stories was related to Lake Torrens.

340    Given the character of the Kokotha informants to Jacobs in 1983, at the same time as Tregenza and Hagen record that “[t]he eastern boundary of Kokatha territory was invariably given as the entire western shore of Lake Torrens”, I do not think much can be made by the Kokatha People of the loose maps drawn which show some extension of their country into some western areas of Lake Torrens for the reasons given.

Further comment

341    On that material, in my view, there is little to support the claims of the Kokatha People to be the sole traditional owners of Lake Torrens either at sovereignty or at any later time, at least up to the late 1980s, in the ethnographic material. I have considered that material both as it appears on its face, and with the insight which certain of the anthropological experts sought to attribute to it. Indeed, given the nature of the informants to certain of those ethnographers and to Gara as an historian it must be said that the material tends to show that, at least until the late 1980s, the Kokatha People themselves did not assert to those sources that their native title rights extended into Lake Torrens itself.

342    If the Kokatha People’s claim is to be made out, it must find its proof directly in the lay evidence, or the expert evidence itself (relevantly that of Willis) or from other evidence. It is certainly the case that the picture presented by the Willis-Azziz report in 1996 is a somewhat different one.

343    The same conclusion is indicated with respect to the Adnyamathanha People’s claim and the Barngarla People’s claim from that material. There is no cogent ethnographic material up to the late 1980s which attributes to either of them the occupation of Lake Torrens at all, or at least in any sense reflecting occupation or use of Lake Torrens in accordance with their traditional laws and customs. In each of their cases, there is some suggestion of such a relationship with Lake Torrens, partly by direct but minor references which – for the reasons given – I do not find at all persuasive. I do not think that material combined with the fact of their occupation of the eastern side of Lake Torrens, or parts of it, points to Lake Torrens being within their traditional country during the time of the observations recorded.

344    As I have said, I am unable to place any real weight upon the fact of adjacent occupation. The Kokatha Part A determination means that, at and from settlement, the Adnyamathanha and Barngarla Peoples were not the traditional owners of the land immediately to the west of Lake Torrens. That was and is the country of the Kokatha People. The fact that Adnyamathanha and Barngarla People, in the period from settlement may have been and been recorded on the western side of Lake Torrens over that period does not demonstrate or tend to demonstrate that they had at settlement, and have continued to have, any particular traditional relationship with Lake Torrens. In the light of the Kokatha Part A determination, their presence on that country (as clearly occurred from time to time) does not support the step of saying that their traditional country surrounded Lake Torrens and therefore Lake Torrens is and has been within their traditional country from settlement and since.

345    The ethnographic material then, if assessed on the basis of movement south and west from the northern and eastern boundaries of Lake Torrens for the Adnyamathanha People and if assessed on the basis of movement north and west from the southern boundary of Lake Torrens, does not provide evidence of their occupation and use of Lake Torrens so as to contribute towards a state of satisfaction that they, or either of them, were and are the traditional owners of Lake Torrens or particular parts of it at sovereignty or continuously since sovereignty

Place names and linguistic identity

346    During the hearing expert anthropological and/or linguistic evidence analysing historical records of Aboriginal place names was introduced. That analysis was primarily undertaken by Professor Sutton, described in detail in Appendix 1 to the Sutton Report and by Monaghan as outlined in the Fergie Lucas & Monaghan Report and in a subsequent report by Monaghan in relation to research performed on 1850s historical sources identified in Gara (2015). All of that material was primarily relied upon by the Third Applicant.

347    Sutton refers to 17 early place names in and around the area surrounding Lake Torrens on the west, north and south-east, many of which were recorded as early as 1858, two of them from 1851. They are:

(1)    Lake Pidleeomina (just north of L Torrens);

(2)    Curdlawidny Lagoon (100 km west of the northern end of L Torrens) (also Curdlawidry, Babbage 21 November 1858 to Commissioner of Crown Lands);

(3)    Collabidnya (E of Curdlawidny, Babbage 21 November 1858 to Commissioner of Crown Lands) (Gara 2015:12 has Cottabidnya);

(4)    Babnee Adnee (about 15 km SW of Yarra Wurta, west of N end of L Torrens; Babbage 3 December 1858 to Commissioner of Crown Lands);

(5)    Beradli (named by Aboriginal Jonah to Swinden and Sleep 1857; Register 12/10/1857 p 2);

(6)    Bumbeyadna (in Yarra Wurta area, NW area of L Torrens; Babbage 3 December 1858 to Commissioner of Crown Lands);

(7)    Boodnemunna (in Yarra Wurta area, NW area of L Torrens; Babbage 3 December 1858 to Commissioner of Crown Lands);

(8)    Kool-tah-bid-nah (obtained by Oakden & Hulkes in 1851; published Observer 27/3/1858, p 7);

(9)    Moodlampnie Hill (125 km WNW of the northern end of L Torrens);

(10)    Moondiepitchnie Water (125 km W of the northern part of L Torrens);

(11)    Nedlebutanyie (island in Island Lagoon W of Pernatty Lagoon);

(12)    Pid-lee-wir-rah [= Pidlee Wirra] (obtained by Oakden & Hulkes in 1851; published Observer 27/3/1858, p. 7);

(13)    Pidlee Wirra (west of L Torrens) (record dates from 1858, R.H. Babbage in the South Australian register 16/04/1858 p3) (Gara 2015:12 has Pidlawirra (Lake Campbell);

(14)    Woordlemmie (on W side of Pernatty Lagoon);

(15)    Wangamoodla Creek (west of southern part of L Torrens);

(16)    Yudnapinna Hill (SW of L Torrens);

(17)    Yadlamalka (just east of south L Torrens); and

(18)    Yudna Well (just east of middle L Torrens).

348    He says that the linguistic origins of each of those names are Kuyani, Barngarla or both, but not Kokatha and that it is likely that these place names were provided to explorers and colonists in the language of those who lived there at the time. In the northern part he says that the language would have been Kuyani and in the southern part, Barngarla.

349    The Fergie Lucas & Monaghan Report place name analysis involved consideration by them of approximately 800 placenames recorded on 1:250,000 series maps of areas contiguous to Lake Torrens, combined into a single map, and a series of diagnostic tests to indicate the likely source language of a particular name. Of these, only approximately 200 are identified as providing indicia that one or more of the applicant groups lived in the area around Lake Torrens at sovereignty.

350    The conclusion of that analysis was that, in the west the placename evidence indicates that there was no Kokatha connection to Lake Torrens before the area was explored or settled from the 1850s (practical sovereignty); and Kokatha placenames extended no further east than Mt Eba before the 1880s. In respect of the eastern side of Lake Torrens, they say that the evidence supports a view that Barngarla is the most likely source language in the south east of Lake Torrens and at least 40kms inland; Kuyani is the most likely source language for placenames at the top of the Lake, that there was a Barngarla Kuyani presence on the western part of the Lake and that this supports a deeper time depth of association with the Lake Torrens region by Lakes Societies.

351    Fergie Lucas and Monaghan concurred with Sutton (2014) that the placenames Carrapateena and Murdie Island, which were recorded in the 1850s, embed the earliest known and identifiable cultural associations to Lake Torrens. They say that these placenames are most likely Barngarla and possibly Kuyani. On similar grounds, Fergie Lucas and Monaghan attributed the place names Pernatty and Nilpena to the Barngarla and possibly to the Kuyani.

352    The Third Applicant also relied on the 1999 work by Hercus & Potezny and the 2006 publication by Mark Clendon. Hercus & Potezny listed the following placenames as having likely Barngarla derivations:

(1)    Manucowie Wells: composed of Barngarla manu, “back” (Schürmann 1844: 27) and kawi, “water”, hence ManuLkawi, “Back Water”, southeast of Bookaloo.[west of southernmost point of Lake Torrens];

(2)    Marachowie Spring: marrity’awi, “Cat Water”, from marrityi, “cat”, near Yadlamulka. [south east of Lake Torrens];

(3)    Yeltacowie: Barngarla yalta, “crack, fissure” (Schürmann 1844: 78) and kawi, “water”: hence YaltaLkawi, Crack (in rocks) Water, near the northernmost edge of Pernatty Lagoon. [west of southern Lake Torrens];

(4)    Willowie: may contain Barngarla wilu, “eagle” (Schürmann 1844: 72), hence Eagle Water’m Kuyani and Adnyamathanha have wildu “eagle”. [south east of Lake Torrens, east of northern Spencer Gulf];

(5)    Belcherowie Well: Paltyarr’awi, “Rat Water” from paltyarra, rat, near the Moalana Creek and close to the eastern edge of Lake Torrens south of the Carrapateena arm; and

(6)    Etowie Creek: Irt’awi, “Bird Water”, near the eastern side of Lake Torrens and Belcherowie Well.

353    Mark Clendon (2006) discuses two possible etymologies for the name Andamooka, including a Barngarla one suggesting that “Andamooka” as a Barngarla Yarnda-malka word, composed of yarnda “back” and malka “marks”, meaning “marks on the back”, referring to the Wilyaru initiation ritual in which parallel scars were carved on the backs of initiands.

354    There was very limited linguistic evidence relied upon which was said to be indicative of Kokatha place names in and around Lake Torrens. One of the only place names said to be derived from a Kokatha word, was the place name Pimba derived from “pinba”, native pine. However, there was evidence to suggest that that word was common to each of the Kokatha, Barngarla and Kuyani languages.

355    The First Applicant submitted that Kokatha place names may not have been recorded for cultural reasons. That is because there may be some sites that are so secret and dangerous that the name of the site will never be uttered outside of a ceremonial context by Western Desert men. That was supported by the lay evidence given by Kokatha People as to the laws and customs that follow from openly discussing culturally restricted evidence, one of which is that people are liable to physical assault and homicide. While that may explain the absence of recorded Kokatha place names in certain areas, it is not capable of positively supporting a Kokatha presence on the claim area. I have considered that explanation in the weight to be accorded to the historical place name evidence.

356    There was a significant dispute during the hearing about the weight which should be accorded to the linguistic evidence. That was in part because the First Applicant disputed that it was appropriate to characterise country as necessarily having a linguistic or language identity, and, even if it were appropriate to do so, it was said that the early linguistic reports were not recorded in such a way as to enable them to be relied on to accurately reflect the group, or groups, which held native title rights and interests in Lake Torrens at sovereignty.

357    The First Applicant’s submissions are supported by the evidence given by Willis. He says that the so-called principle that land has a linguistic identity is not one that he has heard expressed by Western Desert people in more than 30 years of field studies. However, Willis acknowledged that describing country as having a linguistic identity may be a general principle used by linguists specialising in Aboriginal culture. He says that, in Western Desert terms, places may have multiple names. Some places have no names at all. The Rock that we call Uluru is not called that by its traditional owners; Uluru is the name of one of the waterholes at the Rock and local people are just as likely to call the Rock Mutitjulu, after one of the other water holes there. They often refer to it in descriptive terms as Puli Wiru - Bald Rock – or simply as Puli, the Rock.

358    The importance of language to Aboriginal groups is outlined in the Fergie Lucas & Monaghan Report and the Sutton Report. The existence of that importance is also supported by Ellis. As a general principle, it is said in Aboriginal culture that the land itself has a linguistic identity based on the actions, talk or song of its originating Beings (Fergie Lucas & Monaghan Report) and that linguistic identity is a widespread principle held by Aboriginal people themselves, manifest in massive amounts of anthropological and linguistic reportage from across a large proportion of Australia (see e.g. Sutton Report, Sutton and Palmer (1980), Sutton (1991), Sutton (1997), Sutton (2003), Rumsey (1993), and Toohey J’s 1982 report as the Aboriginal Land Commissioner concerning the Malak Malak People).

359    Citing his 1978 publication, Sutton says:

In Aboriginal Australia, as far as I am aware, there is a universal distinction between the language one ‘owns’ by way of patrilineal descent, and other languages. Language is ritual property. People can use each others’ languages, as indeed they commonly do and on occasions must. A theory of linguistic communities which simply separates language knowers from language users will overlook in the Australian case a whole ideology – of great pragmatic importance – about language owners.

360    Sutton also cited numerous examples in Aboriginal myths of the foundations of language either by accounts of Dreamings who institute culture and allot languages to different groups of people or Dreamings which switch from one pre-existing language to another in their creative travel across a wide landscape, including Professor WEH Stanner (1953) and (1979), Yankunytjatjara elder Reggie Uluru in evidence before the Court in Jango, Spencer & Gillen (1899), Strehlow (1947), Strehlow (1965), Berndt (1951) and (1952), Berndt & Berndt (1970), (1988) and (1989), Davis & Prescott (1992), Robinson (1965), Crowley (1978), Williams (1986), Keen (1978) and (1978), Morphy (1989), Wilkins (1989), Reuther (1981), Stirling & Waite (1919), Hercus (1994), Merlan (1981), Merlan & Rumsey (1982), Rumsey (1993), Holmes (1992), Warner (1958), Piddington (1932), Trigger (1982) and (1987), Weiner (2015), Bowern (2012).

361    Sutton acknowledged that he was not aware of any source that reports a systematic mythology of language territory creation in the Western Desert. That would fit with the Western Desert being anomalous, as it is said to be in many other respects. However, he said that there is mythology relating to linguistic territories on the edges of the Western Desert.

362    His evidence on this topic was questioned by Willis. Willis says that a lot remains unclear in the data relied on by Fergie Lucas and Monaghan. From whom, and under what circumstances were these place names recorded (were the informants more likely to be Lakes Group language speakers than Western Desert language speakers)? Does their analysis take into account the orthographic capabilities of those recording the names – colonial world maps for more than a century recorded Peking and Bombay as legitimate renderings of their native names? Were the names recorded in situ, or at a remote location – that is, were the informants talking about distant or proximate places and country? Consequently, he says that the Fergie Lucas & Monaghan Report findings in relation to the language identity of country provide more of a commentary on colonial mapmaking practices than describing the linguistic identity of the country being mapped.

363    I do not accept that the comments of Willis reduce the significance of the linguistic evidence to little or nothing. Monaghan said that its significance depends on the pattern it discloses, and (as Sutton said apparently in more technically correct terms) a strong pattern increases the probability that the picture presented by the pattern is a correct one. Indeed, Willis did not dispute that.

364    The difficulty, in my view, with taking the linguistic evidence too far is the extent to which the pattern it is said to disclose is related more or less consistently to the western side of Lake Torrens (as well as to the areas to the south and north) in terms which point to a conclusion inconsistent with Kokatha Part A. To the extent that that picture therefore shows significant use of Barngarla words or word derivations, on the western side of Lake Torrens and appears to exclude any Kokatha presence, the evidence cannot be received to support the proposition that the presence of Barngarla People in those areas shows or tends to show that, at settlement, they were the traditional owners of all that land. If the pattern or patterns were confined to areas to the south, east or north of Lake Torrens, they may have some probative significance. But their significance must be taken from the pattern. The pattern can, and does, show significant Barngarla presence and probably significant Kuyani presence in the areas around Lake Torrens. That that was the state of affairs accepted by Willis in any event, and was the general effect of the evidence. Having regard to the decision in Kokatha Part A the pattern cannot show that that presence demonstrated that the Barngarla (or Kuyani) People had at, and therefore since, sovereignty native title rights and interests under their traditional laws and customs in the area west of the western boundary of Lake Torrens. Once that step is taken, it is hard to draw any inference from the linguistic analysis which informs the identification of the Aboriginal People who, by their traditional laws and customs, held native title rights and interests over Lake Torrens or part of it.

365    Indeed, given that evidentiary pattern of word use and word derivation in the area to the west of Lake Torrens, and the Kokatha Part A determination in respect of that area, the suggested explanation for the absence of Kokatha word usage and word derivation in place names in the area, namely that in Western Desert societies such word usage or word derivation is kept confidential, appears the more likely. If that step is taken, the pattern demonstrated by the linguistic evidence does not really advance the case of the Barngarla People (or the Adnyamathanha People) in any event.

366    Accordingly, for the reasons given, I did not find that evidence persuasive in support of any one or other of the competing claims over Lake Torrens itself.

ARCHAEOLOGICAL EVIDENCE

367    As indicated, Professor Draper and Mr Carver gave concurrent evidence on 17 December 2015, which focused on field work undertaken by Draper in the preparation of the Draper Report, and the weight which should be attributed to his findings.

368    The First Applicant tendered 4 reports of Draper. They are;

(1)    Draper Report: “Archaeological Report: Lake Torrens Overlap Proceedings SAD 90/2009: Kokatha Native Title Claimants” dated 7 September 2015;

(2)    “Kokatha Native Title Claim (SAD 6013/1998) Expert Anthropology Report 2nd Draft, May 2007” (Draper 2007 Draft Report);

(3)    Aboriginal Cultural Heritage Survey of Potential Dill Sites and Access Tracks within the Straits Exploration (Australia) Pty Ltd Exploration Licence Are (EL315), Andamooka Island, SA Kokatha Report” Draper, Morley and Damhuis December 2007 (ACH Draper 2007 Report); and

(4)    “Aboriginal Cultural Heritage Significance of Lake Torrens, South Australia”. Anthropological Report prepared for the Kokatha Uwankara Native Title Claim group (SAD90/2009) (ACH Draper 2010 Report).

369    The Draper 2007 Draft Report and the ACH Draper 2010 Report were relied upon only on the basis that they were referred to extensively by Draper in the Draper Report and were referred to in the reports of the anthropologists generally.

370    The ACH Draper 2007 Report and the ACH Draper 2010 Report were not admitted as evidence of archaeological opinion, but on the basis that they were relied upon by Draper in the Draper Report, and the reports of other witnesses referred to or relied upon those documents. Hence, they are only material to better understand and use those other reports.

371    The Second Applicant tendered the Carver Report, and a series of photographs and images to which Carver referred in the course of his evidence (given concurrently with Draper). Certain of those photographs contained restricted evidence.

372    It was agreed as between the archaeologists that there was archaeological evidence of Aboriginal people’s presence at the following sites:

(1)    Karlupunta (edge of Lake Torrens, southern side of the tip of the Carrapateena arm);

(2)    Bosworth Creek (edge of Lake Torrens, northern side of the tip of the Carrapateena arm);

(3)    Archie Bevis Dam Ochre Quarry (edge of Lake Torrens, western side of the tip of the Carrapateena arm);

(4)    Yeltacowie Stone Arrangement Site (south-west of Carrapateena arm of Lake Torrens, north-east of Pernatty Lagoon);

(5)    Yeltacowie waterhole and engraving site (south-west of Carrapateena arm of Lake Torrens, north-east of Pernatty Lagoon);

(6)    Andamooka Island;

(7)    No 5 Tank Campsite (Andamooka Island);

(8)    Crombie Ridge (Andamooka Island); and

(9)    Island Soak Campsites (Andamooka Island).

373    The issues to be addressed in relation to that material are principally:

(1)    whether there is any archaeological evidence of Aboriginal presence, occupation or use of Lake Torrens prior to 1788, and, or prior to about 1850;

(2)    if so, the nature, location and estimated date of that presence, occupation or use; and

(3)    whether the archaeological evidence permits inferences to be drawn or conclusions to be made about the identity of any Aboriginal persons, or groups who left or created that archaeological evidence, and so, whether the archaeological evidence permits inferences about the identity of Aboriginal persons or groups who occupied and used Lake Torrens (or parts of), before the commencement of European settlement and from sovereignty.

374    There was very limited common ground between the two experts on any of these issues. That was largely because it was Draper’s opinion that the fieldwork which he had undertaken and the artefacts collected could be used as an effective diagnostic tool to answer question (3) above whereas Carver said that it was not capable of being used for that purpose. There was a fundamentally different view about the use to which the material could properly be put.

375    Draper gave evidence that at almost all of the archaeological sites he inspected, there was at least one artefact which had clear evidence of antiquity, taking into account the amount of re-weathering and re-patination which is found on the working edges and flaked surfaces of artefacts. He conservatively estimated that those artefacts were several hundred years old, and that they were probably several thousands of years old.

376    He further said that the specific sites visited for this work indicate a pattern of men-only camping, workshop, quarrying and ceremonial sites clustered around the Carrapateena Arm of Lake Torrens and on Andamooka Island itself, and that the archaeological pattern is consistent with the broader Kokatha and Western Desert archaeological record. It was his opinion that the archaeological record supports the pre-sovereignty occupation and use of the western side of Lake Torrens and of Andamooka Island by Western Desert People.

377    While Carver accepted that the artefacts may have been there for that long, he disputed that a visual inspection of the artefacts was capable of definitively indicating the age of the artefacts, having regard to how protected they may have been from weathering, and the material composition of the artefact. He said that, even if the artefacts had been weathered on the surface (and had not been protected, that is covered by sand), it was still likely that they had been there for ‘a fairly long time’. However, he was not prepared to provide an estimate of the time, or to say that it had been there for more than 100 years or, by inference, since sovereignty or effective sovereignty.

378    Carver’s evidence further was that he had seen exactly the same sorts of archaeological arrangements on the eastern shores of Lake Torrens as the assemblages found on Andamooka Island and the same use of ochre palettes. He also described seeing exactly the same site tool assemblages in NSW, South Australia and the Kimberley, and the same artefacts, morphology and material throughout the Flinders Ranges. He described finding Pirri Points on the eastern side of the Lake, and in south-west Queensland, a significant distance from the claim area. He disputed that the artefacts necessarily indicated a men-only presence in the area.

379    The Second Applicant submitted therefore, relying on Carver’s evidence, that the archaeology was of no assistance, as the assemblages etc. observed on Andamooka Island could equally have been created by Kokatha People or Lakes Society People.

380    I have considered the evidence of both Draper and Carver carefully.

381    In my view, the evidence does show Aboriginal activity and use on and around the western shore of Lake Torrens and on Andamooka Island of considerable antiquity. I find that the artefacts observed, or very many of them, were present well before sovereignty.

382    I accept that, as Carver said, those artefacts or many of them may have been protected from weathering in various ways so that it is possible that they, or some of them – albeit “old” – are of relatively recent derivation of 100 years or more. However, I think it is unlikely that that is so consistently and with so many artefacts over a number of sites. Their relatively significant appearance is more probably of a much longer duration, notwithstanding the agnostic view of Carver. That that is more probably the case is confirmed by the generally agreed anthropological view that Lake Torrens, given its particular feature, is very likely to have attracted Aboriginal presence and use and to have been sourced to a Dreaming story by a classical Aboriginal society. Its age is also to a degree, more likely to have considerable antiquity because the ethnographic and historical observations from about the mid-1850s have not led to reports of any significant Aboriginal activity on, or use of, those areas. Of course, that may be the consequence simply of the absence of any consistent process of observation of those areas, at least until the 1930s or thereabouts. But, on balance, I infer that the extent of those observations would be likely to have led to some material sightings of, or reports of, such activities after the mid 1850s.

383    However, I do not take the second step in Draper’s process of reasoning, supporting the conclusion that the artefacts represent activities of, and use by, Western Desert people (by inference the Kokatha People) and quite likely including men-only ceremonial activities.

384    In my view, Draper’s evidence, albeit persuasively expressed, rises no higher than saying that the archaeological material, including that found on Andamooka Island, is consistent with Western Desert ceremonial practices. He did not say that it is inconsistent with any other Aboriginal society having generated those archaeological remnants, and in particular that they are not consistent with Lake Society occupation. Draper accepted that he had not undertaken a comparative study, and that his brief was specifically in relation to the Kokatha People and not the Adnyamathanha People.

385    So, in my view, the archaeological evidence shows that, at least on Andamooka Island (as well as on areas abutting the Western side of Lake Torrens and further to the west), there was probably an Aboriginal presence for a long time before settlement, and certainly prior to about the 1840s and 1850s. That material is consistent with it having been left by Aboriginal people from the Western Desert society. If it was people from the Western Desert society it was probably the Kokatha People. However, it is also consistent with having been left by other Aboriginal people, including people from the Lakes Society. Indeed, although Draper was not asked to, and did not, make any comparative study of the archaeological assemblages elsewhere, including on the eastern side of Lake Torrens, Carver was able to make that comparison. His evidence is that the assemblages observed are typical of deposits of Aboriginal people elsewhere in Australia, including those of the Adnyamathanha People. I was impressed by that evidence, having regard to his extensive experience.

386    That evidence confirms the anthropological evidence that it would be very surprising, given the remarkable features of Lake Torrens, if there were no pre-sovereignty Aboriginal society or societies which had firm cultural connections to Lake Torrens under traditional laws and customs. However, for the reasons given, I do not regard it as tending to add to the proof, more probably than not, that the archaeological materials show that the Kokatha engaged in the activities which they reveal and used the sites where they were carried out, rather than the Adnyamathanha (Kuyani) People or the Barngarla People.

The lay evidence

Interrelated applicant groups

387    One issue which arose during the hearing was the extent to which some of the lay witnesses identified with, or could trace their ancestry back to, more than one applicant group. That is in part because, as indicated, three of the apical ancestors in the Barngarla Application, Andrew Davis, Percy Davis and Stanley Davis, are also apical ancestors for the Kokatha Application.

388    Two of the key families which gave evidence for the First Applicant were the Starkey and Wingfield families, both of which trace their ancestry to Mary Bubada known as “Wild Mary”.

389    Wild Mary’s sister (or possibly half-sister), Annie Davis, had children with Arthur Davis known as “King Arthur” who is an apical ancestor for the Third Applicant. Their children, Andrew Davis, Percy Davis and Stanley Davis, are apical ancestors claimed by both the First and the Third Applicants.

390    Eric Page, who gave evidence on behalf of the Barngarla People, is the grandson of Andrew Davis. Members of the Dare family who also gave evidence on behalf of the Barngarla People, including Patricia Dare, Harry Dare and Linda Dare, are descendants of both Percy Davis, through his daughter Edna Davis, and Wild Mary, through her grandson Robert or Harry Dare. Each of them are listed in the genealogy tendered by the First Applicant.

391    The Richards family, including Amanda Richards and Graham Richards, who gave evidence for the Third Applicant, trace their ancestry to Andrew Richards and Grace Coulthard, daughter of Jack Coulthard and Alice McKenzie. Andrew Richards is the son of Barngarla apical ancestor Percy Richards. Grace Coulthard traces her ancestry to Adnyamathanha apical ancestors Mt Serle Bob, Polly, wife of Mt Serle Bob, and Fanny, wife of Angepena Billy. Amanda Richards and Leroy Richards both also identify or identified as Adnyamathanha. Graham Richards identifies as Adnya-Barngarla.

392    In respect of the Kokatha People, that was explained to some extent by Willis in his report as being part of that adaptability of Western Desert people to desert life. He said:

Part of that adaptation includes the traditional – and extreme – permeability of both marriage and ceremonial systems such that Western Desert people can legitimately acquire rights to land through participating in ceremony for that land, by marrying people who have existing rights to land, and even by producing children who by virtue of their conception and birth on that land have rights in it. Because man-making ceremonies and the marriage system (and thereby the possibilities for parenthood) are closely linked in Western Desert law and custom, early records of shared men’s ceremonies between the Kokatha and their Barngala or Kuyani neighbours are strong indicators that the Kokatha were engaged in strategic intermarriage with these groups at least from sovereignty, and likely for centuries before. Western Desert law and custom, geared as it is around arid zone survival at individual and group level, rewards cultural bower-birds, who collect exotic ceremonial experiences, as well as cultural cuckoos, who leave their eggs in the nests of other birds.

393    The overlapping geographical history and the relationships between the witnesses informs the lay evidence which was given, including the similarities and variations between the evidence given by different applicant groups and different families within those groups.

394    That was a particular feature of the evidence of traditional stories, where some witnesses were said to be have been told their stories by elders who knew those stories but who identified with another group, either in addition to their own group, or in some cases senior men and/or women who only identified with another group.

395    In addition some witnesses gave evidence that they had been initiated into the law in more than one group. Mick McKenzie and Lee Brady, who both gave evidence on behalf of the Adnyamathanha People, also described going through Western Desert law. Mick McKenzie is also a Western Desert-initiated wati who gave evidence of going through Western Desert law ceremonies. Lee Brady is also recognised as being a very senior Adnyamathanha person and a very senior Western Desert tjilpi with extensive knowledge of both Adnyamathanha and Western Desert law, including dealings with senior Kokatha men Robert Starkey and Mick Starkey.