FEDERAL COURT OF AUSTRALIA

Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510

ORDERS

THE COURT ORDERS THAT:

1.    The questions reserved for consideration be answered as follows:

Question 1

Did Fred Jalwarta and/or his siblings; and or Bulugul and/or her siblings, possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of all or any of the other apical ancestors identified in the applicant’s Further Amended Form 1 dated 7 August 2018?

Answer

Yes, in that:

a)    Fred Jalwarta possessed rights and interests under traditional law and custom in the Purnululu Disputed Area;

b)    Fred Jalwarta’s brother Nelson possessed rights and interests under traditional law and custom in the Purnululu Disputed Area;

c)    Bulugul possessed rights and interests under traditional law and custom in the Purnululu Disputed Area;

d)    Bulugul’s sisters Wulmarriya and Flora Mayilba possessed rights and interests under traditional law and custom in the Purnululu Disputed Area;

e)    The apical ancestors referred to in a) – d) did not possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of the apical ancestors listed in f) below;

f)    The Court has found the following apical ancestors possessed rights and interests under traditional law and custom in the Purnululu Disputed Area:

a.    Jimmy Turrukpany;

b.    Girnyan;

c.    Kemintul;

d.    Mungamungagatsdil;

e.    Unnamed mother of Ruby Ngadayi and Jenny; and

f.    Walambal.

Question 2

Did Fred Jalwarta and/or his siblings; and or Bulugul and/or her siblings; and/or the apical ancestor identified as Nelson in the Gajangana Jaru Application possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of all or any of the other apical ancestors identified in the Purnululu Applicant’s Further Amended Form 1 dated 7 August 2018?

Answer

Yes, but only to the extent set out in the answer to Question 1 above.

Question 3

Do:

a. Lily Banks and her descendants; and/or

b. Bonnie Edwards and her descendants,

possess rights and interests under traditional law and custom in the Purnululu Disputed Area through:

i.    Paddy Jandiyarri Turner; or

ii.    Fred Jalwarta?

Answer

a)    As to Paddy Jandiyarri Turner, yes but only in respect of Bonnie Edwards and her descendants, and only on the basis of an adaptation of traditional law and custom to accommodate children with a non-Aboriginal father.

b)    As to Fred Jalwarta, yes.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION AND SUMMARY

1    The Court has answered three separate questions, stated across three proceedings pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), for the purpose of determining, in substance, who are the right people for country in the East Kimberley in Western Australia comprising the land and waters covered by the Purnululu National Park. I refer to this area as the “Purnululu Disputed Area”, or the “PDA”.

2    The dispute over who are the right people for the PDA has a long history, with disputes under the Native Title Act 1993 (Cth) extending back almost to its inception. Attempts at mediation, over many years, have failed. Therefore, and regrettably, it falls to the Court to make findings on evidence adduced before it, to resolve these disputes.

3    The separate questions have been through several iterations. Their form and content have developed as the parties’ positions were refined after the appointment of legal representation for the Gajangana Jaru applicant, the retention of Dr Brendan Corrigan as an expert for the Gajangana Jaru applicant, and in particular after the conduct of an experts’ conference by Judicial Registrar McGregor. The questions have continued to centre on who are the correct apical ancestors to be identified for the PDA and who has rights and interests under customary law.

4    On 29 March 2019, the Court ordered that the following question be decided separately in the Purnululu #1 and #2 claims:

Question 1: Did Fred Jalwarta and/or his siblings; and or Bulugul and/or her siblings, possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of all or any of the other apical ancestors identified in the applicant’s Further Amended Form 1 dated 7 August 2018?

5    By an order on the same day, the Court listed a similar separate question in the Gajangana Jaru claim:

Question 2: Did Fred Jalwarta and/or his siblings; and or Bulugul and/or her siblings; and/or the apical ancestor identified as Nelson in the Gajangana Jaru Application possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of all or any of the other apical ancestors identified in the Purnululu Applicant’s Further Amended Form 1 dated 7 August 2018?

6    Although both questions refer to the Purnululu applicant’s Form 1 being “dated” 7 August 2018, it was in fact lodged on that date, and subsequently amended and dated 27 August 2018. That discrepancy does not affect the resolution of the questions but should be noted. On 1 August 2019, the Court ordered that an additional separate question be determined in all three proceedings:

Question 3: Do:

a.    Lily Banks and her descendants; and/or

b.    Bonnie Edwards and her descendants,

possess rights and interests under traditional law and custom in the Purnululu Disputed Area through:

i.    Paddy Jandiyarri Turner; or

ii.    Fred Jalwarta?

7    In summary, I have accepted aspects of the cases presented by each native title applicant, but I have not accepted the whole of the case presented by either of them. It must be borne in mind that the findings I summarise below relate only to the PDA, and not to the entire geographical range of the Purnululu #1 and #2 applications.

8    I have accepted the Gajangana Jaru applicant’s case to the following extent:

(a)    Fred Jalwarta was a person who had rights and interests in the PDA under traditional law and custom;

(b)    Nelson was a brother of Jalwarta;

(c)    The siblings of Bulugul were (at least) Gagai, Flora Mayilba and Wulmarriya. There is not enough evidence to make a finding about Bungul;

(d)    Bulugul, Flora Mayilba and Wulmarriya had rights and interests in the PDA under traditional law and custom;

(e)    Durrukman was the father of Bulugul, Flora Mayilba, Gagai, and Wulmarriya; whether the biological father for all of them, or the father under customary law for some of them, it is not possible to say. Again, the evidence does not permit a positive finding about Bungul;

(f)    Some of the people I have described in these reasons as the “Purnululu PDA apicals” have been shown on the balance of probabilities not to have had rights and interests under traditional law and custom in the PDA, namely:

(i)    Unnamed father of Bulugul and Mayilba (although I accept Durrukman as their father is likely to have had rights);

(ii)    Davy Mardangin;

(iii)    Mulkparriya; and

(iv)    Unnamed father of Paddy Pirtawuny, Dickie Tooltany and Ngangamil;

(g)    The late contention by the Purnululu applicant that all the other Purnululu apical ancestors should be found to have rights and interest in the PDA was not a contention compatible with how the separate question proceeding was conducted and will not be considered.

(h)    Bonnie Edwards and her descendants acquired rights and interests in the PDA through her classificatory relationship with Paddy Jandiyarri Turner, because of an adaptation of customary law to accommodate children with non-Aboriginal fathers; and

(i)    Lily Banks and Bonnie Edwards and their descendants acquired rights and interests in the PDA through their maternal grandfather, Fred Jalwarta.

9    I have accepted the Purnululu applicant’s case to the following extent:

(a)    Jimmy Turrukpany and Durrukman were two different people rather than one person whose name was mistakenly recorded in these two ways at different times, but I have not found it has been proven that they were brothers;

(b)    Jimmy Turrukpany and Kemintul were in a marriage relationship;

(c)    Some of the people described in these reasons as the “Purnululu PDA apicals” have not been shown on the balance of probabilities to have been excluded from having had rights and interests under traditional law and custom in the PDA, namely:

(i)    Jimmy Turrukpany (subject to the outstanding issue of who is descended from him);

(ii)    Girnyan;

(iii)    Kemintul;

(iv)    Mungamungagatsdil;

(v)    Unnamed mother of Ruby Ngadayi and Jenny; and

(vi)    Walambal;

(d)    Mountain was a son of Kemintul and Jimmy Turrukpany, not Durrukman;

(e)    Bulugul and Flora Mayilba had rights and interests under traditional law and custom in the PDA, but their “unnamed father” does not, because I have found them to be part of a sibling set with Gagai and Wulmarriya and have found that the father of all those sisters is Durrukman;

(f)    Gagai did not have rights and interests under traditional law and custom in the PDA;

(g)    The PDA is not exclusively identified as Jaru country, rather it is an area shared between people who now, and for some time in the past, have generally (but not exclusively) been described by reference to the language identities of Kija, Jaru and Malngin; and

(h)    Lily Banks did not acquire rights and interests in the PDA through any classificatory relationship with Paddy Jandiyarri Turner.

10    There are a number of factual issues which remain to be resolved before the native title holding group for the PDA can be completely identified. One significant example is that it is now clear there have been multiple genealogies produced by Dr Redmond for the apical ancestors Jimmy Turrukpany and Durrukman, some versions of which are in evidence and some which are not.

11    Further, and critically, the method by which the Court’s findings can be implemented into a determination of native title will need to be addressed.

Matters to be emphasised

12    Determining the answers to the separate question has involved the parties, and now the Court, in a painstaking reconstruction of historical materials and historical accounts, all framed within a culture which operates on an oral tradition, and at a time when many knowledgeable elders have sadly passed away. It was no easy task for the parties, their experts and lay witnesses, nor for the Court. Although throughout these reasons I make findings accepting some evidence, and argument, and rejecting others, I accept that all concerned have done their best to assist the Court in this reconstruction, for which the Court is grateful.

13    As I explain below, the Court’s answers to the separate questions depend on reaching a view about what, on the evidence before it, are more likely than not to be the facts. That is what the civil standard “balance of probabilities” means. The Court does not decide what the “truth” is in any absolute sense. The Court is not in that sense the arbiter of history. The Court decides whether the party who must prove the necessary facts has shown the facts it contends for are more likely than not to have existed. In circumstances which involve the level of historical reconstruction that these separate questions do, that is not only all that is required; it is all that can reasonably be expected. This exercise is carried out on the basis of the evidence adduced, and inferences which can reasonably be drawn from that evidence. The Court must assess what, reasonably and rationally, can be made of the evidence before it. It does so from a more objective perspective than that brought by the parties, and for that reason, it may well see some evidence as persuasive although one party does not. Conversely, it may see other evidence as unpersuasive, although a party, its expert or the claim group members find that evidence persuasive. Even where the task is challenging, and the evidence pulls in different directions (as it does in many of the factual issues to be resolved in these separate questions), the Court’s function is to make a decision, and to decide if the party with the onus of proof has discharged it.

14    I emphasise that I have deliberately refrained from making any comprehensive findings about the areas within the PDA for which present descendants might be said to have primary responsibility. As these reasons will disclose, there are parts of the PDA which are associated with a high proportion of the apical ancestors identified by the parties, and there are large tracts of the PDA for which there is little or no evidence that any of the apical ancestors identified by the parties were connected to the land by traditional law and custom. These are matters beyond the separate questions, but may need to be resolved before any determination of native title can be made.

A note on spellings, words and descriptions used

15    In these reasons, I have adopted the practice of referring to all witnesses by their full name, although from time to time depending on context I will also refer to them by “Mr” and “Mrs” or “Miss” and their surnames, having checked with the parties about the witnesses’ preferences in this regard. For people who are referred to in the evidence but were not witnesses, especially people from previous generations, I have generally used the person’s first and second name on each occasion; for example, Minnie Lidia. With some of the ancestors, I have adopted a single name if that is how they have customarily been identified. For Fred Jalwarta, I have either used his full name or just “Jalwarta”. I have used the spelling “Jalwarta” as that is what appears in the separate question. There are other witnesses whose names I have shortened for ease of reference – for example, Topsy Dangai Banks I will often refer to as “Topsy Dangai”.

16    The evidence was naturally full of names of people, places, concepts, groups and words in language, to which a variety of spellings were given. In these reasons I have attempted to use the spelling used by a witness, or a source, if I am quoting or referring to that source. Otherwise, when referring to people, I have used the spellings used by the parties in their submissions if a common spelling is used, and if not I have tended to use the spelling used by Dr Redmond (eg Turrukpany and Durrukman), which is a reflection of my acceptance of his long and close involvement in a number of native title claims in the East Kimberley, and the content of his reports in terms of their focus, where appropriate, on how words should be spelled. Where there are differences even within Dr Redmond’s work, I have made a choice which I consider will make the reasons as accessible as possible, in terms of the reader understanding the person I am referring to. An example is Liddy/Edie Jalpart/Jarrabadjirl, to whom I refer as Liddy/Edie. I mean no disrespect at all to any person by the choices I have made.

17    Very sadly, there are two lay witnesses who passed away after making statements adduced in this proceeding. One of them also gave oral evidence. I have referred to them as Mrs D.M. and Mr B.D. Otherwise, the judgment retains the references to people as the evidence and argument of the parties referred to them, which did not involve any redaction or abbreviation. There were some communications from the Court in the weeks prior to judgment being delivered which, regretfully, may have encouraged the parties to suggest a tremendously wide level of redaction, or abbreviation, to the names of almost all Aboriginal people who featured in the evidence and who had passed away. The parties’ requests could not be accommodated because of the size of the judgment and the number of consequential changes, at a late stage, which would have been necessary. The scale of the request was unexpected and the Court apologises that it could not be accommodated. However, what appears in these reasons (with the exception of Mr B.D. and Mrs D.M.) is consistent with the parties’ own use of names in their evidence and argument, all of which was presented in open Court.

18    While I recognise that there are strong views amongst the Gajangana Jaru claimants that the PDA should not be called “Purnululu”, that is now the officially recognised name for the national park and therefore I have used it. When discussing evidence where witnesses or earlier sources use the term “Bungle Bungles”, I have used that term.

19    In terms of place names, where there are different spellings and a choice needed to be made, I have tended to use the spelling on the joint agreed site map, which was the principal map used in the proceedings.

20    Anthropologists and other experts are referred to by the title “Dr” where they are known to have been conferred with a PhD, regardless of whether it was conferred before or after creating the materials that are in evidence (eg Phyllis Kaberry’s PhD was conferred after the 1935 genealogies).

21    Phyllis Kaberry’s handwritten genealogies, five of which are in evidence, were relied on by Dr Redmond in his report and formed the basis for a number of his opinions. The parties also put her work to various uses in their final submissions. Her handwriting is extremely difficult to read and, at the request of the Court, the parties submitted an agreed typed version of these genealogies, which also note any disagreements between the parties about transcription. The agreed spellings of her genealogies did not always accord with Dr Redmond’s interpretation of her handwriting in his report; however, Dr Redmond was not challenged about this in cross-examination. Dr Redmond himself gave an explanation for some of the different spellings at p 15 of his report, referring to the earlier work of Dr Patrick McConvell:

While Dr McConvell’s recommended orthography has been followed as far as is practicable throughout this report, a wide variation in spellings has been employed since research commenced in this region in the late 1920s. The orthography used by previous authors have been retained in order to reserve the integrity of those original sources …

22    As I also noted in Dempsey on Behalf of the Bularnu, Waluwarra and Wangkayujuru People v Queensland (No 2) [2014] FCA 528; 317 ALR 432 at [16], lay witnesses (and indeed people whose accounts are recorded in earlier sources) frequently refer to areas by station names. The appropriate way to interpret how people used references to the pastoral station known as Turner Station features in this case, and I make some particular findings about that below. Otherwise, I recognise that for Aboriginal people who had to find ways to orient themselves in the post-settlement environment, including the role played by stations where Aboriginal people were forced to live and work, parts of the landscape (but not all of it) have become conceptualised by reference to station names. It is difficult to explore what is meant by such references and it appeared to be common ground that any such references were not to be understood as necessarily following the boundaries of station, but sometimes they may broadly have this meaning. Sometimes the references to a station may be a more general indicator of areas, and sometimes the reference may predominantly be to the area where a station homestead was located. When describing evidence, or accounts from historical sources, that refer to stations, I do so taking these matters in to account.

23    The transcript of the on-country evidence has been carefully prepared in terms of the use and spelling of the large number of group and language names used in this proceeding, and the Court is grateful to Transcripts Australia for the care taken in this exercise. The parties also agreed on any material corrections to the transcript, for which the Court is also grateful. Where there are occasional words that might appear to still be misspelled in the transcript, I have generally taken the correct spelling where it is obvious from other evidence. On rare occasions when this is not the case, I have retained the spelling as it appears in the transcript.

THE CLAIMS BEING CONSIDERED FOR THE PURPOSE OF THE SEPARATE QUESTIONS

24    In relation to claims of native title, the PDA has been the subject of contest since at least 1994.

25    It will be necessary to describe the history of claims in the PDA, but in terms of the current proceedings in which the separate questions have been stated, there are two applications for native title made on behalf of a group whose members predominately but not entirely identify as Kija people, Kija (sometimes spelt Gija) being a language identifier. All parties are agreed that language identification is not the appropriate basis for determining the right people for the county in the claim area(s), or in the PDA. Nevertheless, as these reasons will reveal, language identification has accompanied the rift over interests in the PDA, as it continues to do in other native title situations in the East Kimberley.

26    One of these two applications – the principal one – was lodged in 1994, the second more recently. The applicant in this claim calls itself the “Purnululu applicant”. The present lead member of the applicant is Shirley Drill. Mrs Drill was also a key witness.

27    On the other side of the debate is a group who identify themselves as Jaru speaking, and have called their application the Gajangana Jaru application. The lead applicant on this claim is Bonnie Edwards, who was a key witness for this claim, along with her elder sisters Lily Banks and Tanba Banks.

28    I have elected to maintain the descriptions the parties gave to each applicant – “the Purnululu applicant” and the “Gajangana Jaru applicant”. This is for consistency and does not reflect any view about the merits of the claims.

History of the claims

29    The Purnululu applicant lodged native title determination application WAD 536 of 2018 (formerly WAG 6007 of 1998) with the National Native Title Tribunal on 21 December 1994 and the claim was accepted for registration on 15 October 1999 (Purnululu #1 application). A small number of Aboriginal respondent parties were joined as part of the notification process between 3 April and 3 July 1995.

30    In the first formal indication of the dispute over the PDA, Tanba Banks lodged native title determination application WAG 6199 of 1998 with the NNTT on 16 September 1997 on behalf of “Banks and related families” (Jiddngarri claim). The Jiddngarri claim overlapped to a significant degree with the land the subject of the Purnululu #1 claim, but was not wholly coincident with it. It extended to areas further to the north, west and south of the PDA and included the area now determined to be held by the Jaru People: see the Court’s determination in Sturt on behalf of the Jaru Native Title Claim Group v State of Western Australia [2018] FCA 1923 (Jaru determination). The Jiddngarri claim form stated that the group represented by Tanba Banks claimed through her “father, grandfather and grandmother”. The parties accepted this was a reference to, respectively, Paddy Jandiyarri Turner, and his parents, Bulugul and Barmarlngana (or as Mrs Edwards’ evidence was, Gurunbu/Gurunbul). A point which has later relevance is that Mrs Edwards agreed in cross-examination that this was not a reference which identified Fred Jalwarta. As Gray J noted in Britten v State of Western Australia [2001] FCA 1256 at [7], the application was signed by a cross, rather than a signature, and his Honour inferred that Tanba Banks could not read or write.

31    On 16 June 1999, French J (as his Honour then was) ordered that the Purnululu application, together with the Jiddngarri application, be referred to the NNTT for mediation. Mediation was to initially address whether there was a reasonable prospect of resolution between the overlapping claimants.

32    On 15 September 1999, the Purnululu applicant filed an amended application in the Purnululu #1 claim. Amongst the amendments was a change to the claim group description to specifically exclude Tanba Banks from the Purnululu claim group. The application stated

If it is taken by this description of the claim group includes Tanba Banks, then by this paragraph it should be understood that she is excluded.

33    The reason for this change is not clear on the evidence, although there are some suggestions in the Purnululu applicant’s final submissions about the reasons. The timing of this amendment, with Tanba Banks as its target, a few years after the Jiddngarri claim was filed, suggests the amendment was a manifestation of the emerging divisions between the two groups and which have given rise to this proceeding. As I explain below, the divisions had manifested themselves clearly in 1992, although that is not to suggest there were no tensions before this time. The express exclusion of a person who was by that time an elder, and who it is now acknowledged was and always has been a person with rights and interests in the PDA under traditional law and custom, reflected the levels of antagonism which had developed by 1999.

34    In 2000, the Court’s records indicate there was a prospect of the Purnululu and Jiddngarri applications proceeding to trial, and draft programming orders were discussed. It appears little progress in the NNTT-convened mediation had been made, including due to uncertainty around the identity of the native title holders on whose behalf the Jiddngarri application had been brought.

35    In 2001, the Purnululu applicant sought to strike out the Jiddngarri claim by way of notice of motion filed on 2 February 2001. At this time, Jack Britten remained as the original lead member of applicant on the Purnululu #1 claim, and Shirley Drill was the second named member of the applicant. Mr Britten, a Kija man who spoke for Jarlarlu country, was the maternal grandson of Paddy Pirtawuny, whose unnamed father is one of the apical ancestors identified on the Purnululu claims. Mr Britten is related through his mother to several other claim group members who also gave evidence in proceeding, including Paul Butters, Sophia Mung, Mrs D.M., Eileen Bray and Johnathan Johnson Jnr.

36    In Britten, Gray J made a number of orders directed towards establishing the identity of persons claimed by Tanba Banks to hold native title rights and interests in the area relating to the Jiddngarri claim. His Honour noted that Mrs Banks appeared to have no legal assistance in preparing the Jiddngarri claim and the descriptions in the Jiddngarri claim made it difficult, if not impossible, to identify the persons who were claimed to be native title holders. It is also apparent from his Honour’s reasons (for example at [11]) that Bonnie Edwards was assisting Tanba Banks in this claim. At that stage, Mrs Edwards identified herself to the Court as communicating “on behalf of” the Mindi Mindi Aboriginal Corporation (MMAC). The role of that corporation in the PDA is a matter to which I return later in these reasons.

37    Dr Fiona Powell was appointed as a court expert for the purpose of the “identification, name or description of the persons claimed by Tanba Banks to be the holders of native title” in relation to the land covered by the Jiddngarri claim. His Honour found at [16] that it was

desirable to have separate identification of those who are claimed to be native title holders in respect of the overlapping area from those (if any) who are claimed to hold native title rights and interests in respect of the remainder of the land the subject of the Jiddngarri application.

38    The Court emphasised at [22]:

I do not intend that it should be any part of Dr Powell’s function to express a view as to the merits of the claim that any person holds native title rights and interests with respect to any land.

39    Dr Powell reported to the Court on 9 November 2001. Her report identified a little over 50 persons that comprised the group claimed by Tanba Banks to be native title holders in the Jiddngarri claim with respect to the land which overlapped the Purnululu #1 claim.

40    On 1 March 2002, Gray J ordered that those persons identified by Dr Powell become respondent parties to the Purnululu #1 claim, adjourned the Jiddngarri claim and dismissed the strike-out application: Britten v State of Western Australia (No 2) [2002] FCA 163. At [8]-[9], Gray J explained the purposes of the Court’s orders in this way:

The addition of those who are claimed to be native title holders of the overlapping area in the Jiddngarri application as parties to the Purnululu application cannot and will not pre-empt the determination of any issue. In particular, it will not amount to the expression of any opinion as to who are the native title holders, if any, in respect of the overlapping area. It will enable a proper determination to be made, because all competing interests will be represented in the one proceeding in relation to the overlapping area.

The purpose of adjourning the Jiddngarri application to a date to be fixed is simply to allow the issue of any determination of native title in the overlapping area to be dealt with in a single proceeding, in accordance with ss 67 and 68 of the Act. Because the Jiddngarri application also overlaps with another application for determination of native title, part of it will have to be dealt with in conjunction with that other application. It is therefore more convenient to adjourn the Jiddngarri application than it would be to adjourn the Purnululu application.

41    It is sobering to reflect that although his Honour identified the need in 2002 for a “single proceeding” to resolve the disputes between the groups, it was not until 16 years later that this occurred, through the separate question process.

42    As Gray J noted (at [13]), the Kimberley Land Council, acting for the Purnululu applicant, contended that the persons joined as respondents and identified by Dr Powell were also members of the Purnululu claim group. At [14], the Court recognised this as an issue but maintained this was the appropriate way to proceed in the short term.

43    It remains the case in the applications which are the subject of the separate questions that there is a degree of overlap in terms of membership of the respective claim groups. That fact reflects the family structures at work, the mixing and intermarriage of Jaru-identifying and Kija-identifying people in and around the area of the PDA, and the taking of rights through descent.

44    On 29 November 2002, Gray J made the following order in the Purnululu #1 claim:

If any of the persons added as respondents in the proceeding by the order made on 1 March 2002 does not file a notice of appearance in accordance with Order 9 rule 4 of the Federal Court Rules, or otherwise provide to the Court an address for service in accordance with Order 7 rule 6 of the Federal Court Rules, service of any document in the proceeding be effected on that respondent by sending a copy of the document by prepaid post addressed to the person:

care of Bonnie Edwards at Mindi Mindi Corporation, [address redacted]

45    No notices of appearance were filed in relation to the above order. As a result, Mrs Edwards’ address became the address for service for all of these respondents. On 26 June 2013, respondent party Mona Phillips filed a notice of change of address for service in the proceeding, so that her address for service was no longer through Mrs Edwards, and on 10 July 2013, 12 respondents – Sophia Stretch, Robert Stretch, Lorraine Stretch, Rasheed Malgil, Josie Farrer, Felicity Smith, Donna Malgil, Queenie Malgil, Rosie Stretch, Preston Malgil, Kay Malgil, and Evelyn Malgil – filed notices of change of address for service in the proceeding, so their addresses for service were no longer through Mrs Edwards.

46    As far as can be ascertained, there was then a period of some seven years where no significant steps were taken in either the Jiddngarri application or the Purnululu application. Between 2003 and 2009, the matters remained in mediation before the NNTT. Regional directions hearings were convened by French J, followed by Gilmour J, approximately twice a year with the NNTT requested to provide mediation updates ahead of each directions hearing.

47    Mediation reports during this period refer to ongoing conflict over traditional ownership of the Purnululu area, and the lack of anthropological work, for which resources remained unavailable. Further, resources were being devoted towards negotiations between the Purnululu Aboriginal Corporation and the State of Western Australia in relation to world heritage listing for the Purnululu National Park and the creation of a joint management arrangement. The absence of a comprehensive anthropological report was identified as detrimental to the prospect of mediation, as it was considered fundamental to resolving key matters of dispute between the two sets of claimants. However, the Court was informed that the funds necessary for such a report to be completed were not expected to become available for a number of years.

48    After a general call over of proceedings in the East Kimberley, and the Court having sought submissions from the parties, with none being filed, on 15 June 2009 the Court dismissed the Jiddngarri claim of its own motion under s 190F(6) of the Native Title Act: Banks v State of Western Australia [2009] FCA 703. At [13], Gilmour J noted that the applicant had not moved, or indicated any move, to amend the application following its failure twice to pass the registration test, and there did not appear to be any reason why the application should not be dismissed.

49    As a result of the joinder of all those covered by the Jiddngarri claim as respondents to the Purnululu #1 claim, however, the dispute remained before the Court in the form of a contest between the Purnululu applicant and the Aboriginal respondent parties.

50    The Purnululu #1 claim was first referred to a Registrar for case management on 14 December 2009 by Gilmour J; however, the matter then continued in mediation with the NNTT until 2012.

51    On 29 June 2012, Barker J ordered that a case management conference be convened for the purpose of ascertaining:

  a.    the issues remaining to be resolved;

  b.    the processes and timeframes for resolving those issues; and

c.    what, if any, further orders in relation to mediation might be considered by the Court.

52    On 2 August 2012, Barker J ordered that mediation in the NNTT cease and the matter be referred to a Deputy District Registrar for a case management conference, with a further directions hearing to be held in November 2012. At a case management hearing before the Registrar on 11 October 2012, it was not clear whether any connection material had been completed or commenced.

53    On 16 November 2012, Barker J ordered that the matter continue in case management. There were then a number of case management conferences before different Registrars. Ongoing delays to take steps to progress the claim were explained at various points as due to ongoing “intra-indigenous issues” and funding shortages.

54    In 2017 the KLC indicated that there was a further delay to the provision of connection materials for the Purnululu #1 claim, as the draft connection material prepared by one consultant was considered insufficient and Dr Tony Redmond was engaged to do additional field work and prepare a more suitable report.

55    Between January and July 2018, the case managing Registrar undertook to locate the contact information for the Aboriginal respondent parties for whom the Court did not have accurate contact information and to obtain an understanding of which of those respondents wished to remain as parties to the claim and participate in the future conduct of the proceeding. As part of this process attempts were made to reach all of those respondent parties through various means including: through Mrs Edwards, through the KLC (including placing a public notice on the KLC website and Facebook page), through a range of East Kimberley community organisations, through a public notice aired on a local radio station, through the channels available to the Shire of Halls Creek, through the Northern Land Council, as well as direct attempts to contact each respondent based on any available information about their contact details or whereabouts.

56    The Registrar advised the Court, by way of a report filed on 30 July 2018, that a number of respondents were since deceased and that despite best efforts, many of the remaining respondents were unable to be contacted. Others provided an updated address for service and some advised via telephone that they no longer wished to remain as respondents; however, attempts at further communication with those respondents were unsuccessful. Mrs Edwards advised that she should remain as the contact person for some, including the Lannigan family, while others “should be listed on other claims”. The only other written correspondence received from these respondents was from Mona Phillips who stated, by way of a statutory declaration dated 20 July 2018 and received by the Court on 27 July 2018, that she gave her “full approval for Bonnie Edwards to represent, speak and/or negotiate on behalf of me and my descendants in any Native Title claim for our traditional lands”.

57    On 6 August 2018, the Court made an order that Bonnie Edwards, Lily Banks, Tanba Banks and Mona Phillips were to remain as respondents and an order removing those 17 respondents who were understood to be deceased. The Court also made orders requiring that the remaining Aboriginal respondents indicate to the Court an address for service, or provide written correspondence stating their intention to remain respondents, within four weeks of service of the orders, with a failure to comply causing their removal as a party to the proceeding. Once this process took effect, only Tanba Banks, Lily Banks, Bonnie Edwards and Mona Phillips remained as Aboriginal respondents to the Purnululu #1 application.

58    The Purnululu #1 application was amended again on 7 August 2018. The claim group description was amended to remove the express exclusion of Tanba Banks and to add “the unnamed father of Bulugul and Mayilba” as an additional apical ancestor.

59    Mona Phillips is a descendant of Raymond Turner, a son of Bulugul, and therefore is within the Purnululu #1 claim group description as a descendant of the unnamed father of Bulugul and Flora Mayilba. She remains an Aboriginal respondent party to the Purnululu #1 claim, having elected to do so through the case management process which saw the remainder of the Aboriginal respondents removed as respondents. The parties disagreed about what position could be attributed to Mrs Phillips in relation to the competing claims. While Mrs Phillips was present for part of the hearing of the separate questions, she was not called to give evidence by either applicant. There is no admissible evidence about Mrs Phillips’ reasons for wishing to remain a respondent to the Purnululu #1 application, nor any admissible evidence about who she “supports”. The appropriate course in these circumstances is for no findings to be made, one way or another, about Mrs Phillips’ support, or lack of support, for either the Purnululu or Gajangana Jaru claims. Having not participated in the proceeding, but remaining a respondent, she will be bound by the outcome of the separate question hearing.

60    Following a court referral for legal assistance, Marina Georgiou of counsel commenced acting on a pro bono basis for Mrs Edwards (as a respondent) from April to September 2018. The Court records its gratitude to Ms Georgiou for the considerable assistance she provided to the Court (and no doubt to Mrs Edwards and those who supported her) in this early period. Mrs Edwards subsequently received funding for legal representation from the KLC to appear as a respondent to the Purnululu #1 application, and later received further funding for the Gajangana Jaru native title application. The Court acknowledges the appropriate and constructive role taken by the KLC to the recent developments in the dispute over the PDA. The funding of legal representation for the remaining Purnululu respondents and then for the Gajangana Jaru applicant has advanced the interests of the administration of justice, and enabled a full assessment in this separate question proceeding, of the core matters in dispute.

61    On 6 August 2018, and while Bonnie Edwards, Lily Banks, Tanba Banks and Mona Phillips remained as respondents to the Purnululu #1 application, the State filed a first draft minute of consent determination of native title for the Purnululu #1 application. This draft determination provided for a determination of native title in favour of the Purnululu applicant in those parts of the Purnululu #1 claim area where native title is capable of being recognised.

62    The Purnululu applicant suggested various refinements to the draft determination. Mrs Edwards opposed the draft determination, primarily on the basis that the proposed native title holders “do not, as a group or community, hold rights and interests” in what she then described as the “Karjanama Jaru Purnululu Overlap Area”.

63    A second application, proceeding WAD 401 of 2018, was filed by the Purnululu applicant on 6 September 2018 (Purnululu #2 application). This application is over three areas of unallocated Crown land within the Purnululu #1 application area, and seeks the benefit of s 47B of the Native Title Act. The Purnululu #2 application was consolidated with the Purnululu #1 application by order of the Court on 9 November 2018. Initially, it appeared that Tanba Banks, Lily Banks and Bonnie Edwards may have sought to become respondents to the Purnululu #2 application on the basis that they would assert rights and interests in that claim area. However, it subsequently became clear that, insofar as the Gajangana Jaru application comprises, as the Court understands it, the whole of the claim made on behalf of the Gajangana Jaru applicant, the Purnululu #2 application area is not the subject of any dispute, or overlapping claim, formally or informally.

64    On 9 November 2018, following a case management hearing with the parties, the Court made the following orders in the Purnululu and Purnululu #2 proceedings:

4.    Any overlapping native title determination application under s 61 of the Native Title Act 1993 (Cth) concerning the area claimed in applications WAD6007/1998 and WAD401/2018 is to be filed by 31 January 2019.

5.    In the event that no application is filed in accordance with order 4, no application under s 61 of the Native Title Act 1993 (Cth) concerning the area claimed in applications WAD6007/1998 and WAD401/2018 will be accepted for filing until the hearing and determination of the Separate Question.

65    The Gajangana Jaru applicant filed a claim on 7 February 2019 (WAD 65/2019) (Gajangana Jaru application). This claim relates to the land and waters of the PDA only. The Gajangana Jaru applicant submits that the Jiddngarri claim group, the original Aboriginal respondent parties to the Purnululu #1 application, and the Gajangana Jaru claim group are substantially the same group of people.

66    In closing oral submissions, counsel for the Purnululu applicant submitted that the separate questions were “designed merely to resolve matters that were a roadblock to the making of a consent determination”. The Gajangana Jaru applicant submitted this characterisation should be rejected in light of the above history of the claims. In substance it contends the claims’ history in relation to the PDA demonstrates there has been a longstanding debate about who are the right people for the PDA. I accept that submission. As these reasons will explain, the evidence about connection to the PDA at effective sovereignty is of variable probative value. While it is correct that the State has accepted that native title is likely to exist (subject to extinguishment) over the PDA, and in that sense has been content to work towards a consent determination, it has also consistently and properly maintained it is concerned to ensure the right people for the PDA are identified. On the basis of the material provided to it, it had previously accepted the right people were the members of the Purnululu claim group, and it has maintained that position at the conclusion of the separate question trial process.

67    However, in my opinion, what this separate question hearing has demonstrated is that there is a real question about which apical ancestors can be established by evidence to have been more likely than not to hold rights and interests under traditional law and custom in the PDA at effective sovereignty.

68    The three central protagonists in the competing application – Bonnie Edwards, Lily Banks and Tanba Banks – did not have ongoing legal representation until 2018, and it is that assistance which has been responsible for enabling them to formulate their claim with the detail required by the Native Title Act. Their application is not a “roadblock”: it is a seriously advanced claim, which deserves proper consideration. The persuasiveness of the Purnululu applicant’s case is not assisted by such a characterisation.

The two Purnululu applications

69    In evidence are three versions of the Form 1 for the Purnululu #1 application lodged by the Purnululu applicant. The original Form 1 was filed on 21 December 1994. The members of the applicant were listed as Raymond Wallaby, Jack Britten, Queenie McKenzie and Hector Chunda. Each of these original members of the Purnululu applicant is now deceased.

70    An amended Form 1 was then filed on 23 September 1999. The members of the applicant were changed to Jack Britten, Shirley Drill, Phyllis Gallagher, Bernard Stretch and Hector Chunda.

71    A further amended Form 1 was filed on 7 August 2018, pursuant to leave granted by the Court in orders dated 6 August 2018. This is the form of the application which is to be treated as before the Court for the purposes of the resolution of the separate questions. The Court’s orders also upheld a s 66B application filed by the Purnululu applicant to replace the then applicant with the following individuals:

(a)    Shirley Drill;

(b)    Bernard Stretch;

(c)    Timothy Mosquito;

(d)    Judith Butters;

(e)    Sophia Mung;

(f)    Benjamin Cross;

(g)    Roberta Daylight;

(h)    Lorraine Daylight;

(i)    Christine Farrer;

(j)    Queenie Malgil;

(k)    Cherylene Nocketta;

(l)    Pamela Alberts;

(m)    Darren Gore;

(n)    Coral Gore-Birch; and

(o)    Jeremy McGinty.

72    Paragraph 2 of Sch A of the further amended Form 1 lists the following apical ancestors for the Purnululu claim group:

(a)    Girnyan;

(b)    Jingkupal;

(c)    Unnamed father of Paddy Pirtawuny, Dickie Tooltany and Ngangamil;

(d)    Wulawalyan;

(e)    Kemintal;

(f)    Jimmy Turrukpany;

(g)    Davey Mardangin;

(h)    Nyitparriya;

(i)    Dina Ngowaya;

(j)    Unnamed father of Bulugal and Mayilba;

(k)    Unnamed mother of Junbaynngulu;

(l)    Jarnpayjirl;

(m)    Bilal;

(n)    Mungamungagatsdil;

(o)    Mulkparriya; and

(p)    Nyalwalapan.

73    As the Gajangana Jaru applicant submitted, there is some overlap between the apical ancestors identified in the Gajangana Jaru application and those in the Purnululu application.

74    The Purnululu applicant’s submissions focused on a subset of these apical ancestors contended to be “specifically connected to country” within the PDA. That subset is:

(a)    Girnyan;

(b)    Kemintul;

(c)    Jimmy Turrukpany;

(d)    Unnamed father of Bulugul and Mayilba;

(e)    Mungamungagatsdil;

(f)    Unnamed father of Paddy Pirtawuny, Dicky Tooltany and Nganggannil;

(g)    Mulkparriya; and

(h)    Davy Madarning/Mardangin.

75    Together I describe these people in these reasons as the “Purnululu PDA apicals”.

76    Further, the Purnululu applicant identified for the first time during the separate question hearing two additional apicals said to have rights and interests in the PDA, based on Dr Redmond’s opinion that he would add them after having heard and seen the evidence in the hearing of the separate question. Those ancestors are Walambal and the unnamed mother of Ruby Ngadayi and Jenny.

77    The native title claim group for the Purnululu #1 application is defined as those Aboriginal people who:

(a)    are descended from one or more of the people listed in para 2 of Sch A (being the apical ancestors listed in [72] above); or

(b)    are recognised by the descendants of the people listed in para 2 of Sch A as having rights and interests in the claim area under traditional law and custom.

78    The Purnululu #2 application was lodged on 6 September 2018. The named applicants in the Form 1 application are:

(a)    Shirley Drill;

(b)    Roberta Daylight;

(c)    Bernard Stretch;

(d)    Lorraine Daylight;

(e)    Cherylene Nocketta;

(f)    Christine Farrer;

(g)    Jeremy McGinty;

(h)    Queenie Malgil; and

(i)    Pamela Alberts.

79    The apical ancestors of the claim group in the Purnululu #2 application are the same as those ancestors referred to in the Purnululu #1 application. The native title claim group in the Purnululu #2 application is defined by reference to the same two pathways as the members of the Purnululu claim group: being through descent from one or more of the named apical ancestors, or recognition by those descendants.

80    The second pathway identified in both Purnululu applications – “recognition” – assumes some significance in the resolution of the separate questions, as I explain below.

81    The Purnululu #2 application is not registered on the Register of Native Title Claims. On 28 September 2018, a delegate of the Native Title Registrar found that the application did not satisfy all of the conditions in s 190B and s 190C of the Native Title Act and therefore did not accept the claim for registration. Specifically, the delegate found that the application did not meet the requirements of ss 190B(5), (6), (7), and 190C(3).

The claim by the Gajangana Jaru applicant

82    The Gajangana Jaru application was lodged on 5 February 2019. The Form 1 application lists the following four applicants:

(a)    Bonnie Edwards;

(b)    Tanba Banks;

(c)    Lily Banks; and

(d)    Douglas Lannigan.

83    The claim group is described as those persons who are descended (including by way of adoption) from the following apical ancestors:

(a)    Bulugul;

(b)    Gagai;

(c)    Mountain;

(d)    Wulmarriya;

(e)    Flora Mayilba;

(f)    Bungul;

(g)    Jalwarta; and

(h)    Nelson.

84    The Gajangana Jaru applicant contends that these apicals comprise two sets of siblings: Bulugul and her siblings Gagai, Mountain, Wulmarriya, Mayilba and Bungul; and Jalwarta and his sibling Nelson.

85    The Gajangana Jaru application is not registered on the Register of Native Title Claims. On 8 April 2019, a delegate of the Native Title Registrar found that the Gajangana Jaru application did not meet the requirements of ss 190B(2), (5)(b) and (c), (6), (7), and 190C(3) of the Native Title Act and therefore did not accept the claim for registration.

The difference between the claim areas for each of the applicants

86    The Gajangana Jaru application covers approximately 2,438 km2 and wholly covers the land and waters of the PDA. Its boundaries are wholly encompassed within the boundaries of the Purnululu #1 application. The PDA’s boundaries are generally consistent with the boundaries of the Purnululu National Park

87    The Purnululu #1 application covers a larger area than the Gajangana Jaru claim, approximately 4,573 km2. It encompasses the whole of the PDA and areas further to the north, north-west, west and south-west. As I have noted, the Purnululu #2 application relates to three areas of unallocated Crown land outside the PDA.

88    The following map, produced by the National Native Title Tribunal, depicts the boundaries of the three claims and the extent of their overlap. The green line marks the boundary of the Purnululu #1 application, the pink shading marks the Purnululu #2 application and the Gajangana Jaru application is shaded yellow; the yellow shading also marks out the PDA.

89    The answers to the separate questions and these reasons only deal with the PDA.

Adjoining native title determination areas

90    Much of the region surrounding the PDA is covered by native title determinations, all by consent, associated with Jaru or Kija languages or a mix of Kija and other languages and dialects. There is also one area of land to the south-west of the PDA that has yet to be determined but is subject to the Koongie-Elvire application (WAD 45 of 2019), which was accepted for registration on 15 November 1999.

The Jaru determination

91    The Jaru native title application area initially ran along the eastern boundary of the PDA along the Ord River and east until the Northern Territory border. The area immediately adjoining the PDA south of the Ord River, which forms part of the Ord River Regeneration Reserve managed by the Western Australian government (identified as “Reserve 28538”), was ultimately excluded from the Jaru determination by agreement of the parties and with no further claim by the Jaru People to be made over this area: see Sturt on behalf of the Jaru Claim Group at [7]. This reserve, along with the Purnululu National Park, formed part of the land resumed by the government in 1967 as part of the regeneration plan for the Ord River Catchment Area, which, as I explain below, included the resumption of the Ord River and Turner pastoral stations.

92    In Sturt, native title was determined to be held by “the Jaru People”. The native title holders are described in Sch 6(1) as those Aboriginal people who:

(a)    are related through filiation (meaning a series of parent-child relationships, including by adoption) to one of the Apical Ancestors who held rights and interests in one of the local estate countries comprising the Determination Area; or

(b)    are affiliated to an Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or

(c)    are recognised by the persons described above as:

(i) holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or

(ii) holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom.

93    The apical ancestors are listed in Sch 6(2) and include names which are also the subject of evidence and argument in this proceeding:

Budubal (mother of Biddie Gilidngali)

Durukman

Buggy Djimululun / Dzimululun (father of Fred Jalwarta)

Jimmy Turrukpany

94    The Jaru applicant comprised representatives from “a number of clan groups making up the Jaru people”. These included members from Bilinyana Jaru, Yudu (Kadyanana Jaru), Warl Jaru and Nynin Jaru. Bonnie Edwards was named as within the Nynin Jaru clan group: Sturt at [10]. The Jaru applicant was represented by the KLC. Dr Redmond was the anthropologist who conducted most of the research on this claim, and whose research was presented to the State as the basis for its assessment of the connection of the Jaru People to the determination area. A substantial part of his Jaru report is in evidence in this proceeding, although some of the report’s appendices are not.

95    The Court’s reasons in Sturt indicate Tanba Banks provided an affidavit in support of the application which set out some substantive evidence about Jaru traditional law and custom.

96    Mrs D.M.’s sons, Timothy and John Mosquito, provided a joint affidavit, and Timothy Mosquito and Ivan Turner also provided affidavits to the State in relation to connection to the Jaru determination area. Timothy Mosquito was one of the claim group members whose rights and interests in the determination area come through the apical ancestor Jingargi, who was added to the list of apical ancestors after the original Form 1 was filed and whose inclusion caused significant controversy and some division in the Jaru claim group. Bonnie Edwards, along with Barbara Sturt and other named applicants of the claim group, objected to Jingargi and his descendants being included in the claim and had filed an interlocutory application to vacate the consent determination on that basis. The application was ultimately dismissed.

97    As I noted at [38] of Sturt on behalf of the Jaru Claim Group, as part of the process towards a consent determination

the relevant parties agreed that the Jaru claim could be managed separately from the Purnululu claim, the latter having some particular challenges with competing views by claim group members, and some non-claim group member respondents, about who are the right people for Purnululu country, and where the boundaries of that country are.

98    The “Purnululu claim” is a reference to the Purnululu #1 application.

99    The organisation of rights and interests under the body of traditional law said to exist at the time of sovereignty was summarised at [65]-[66] of Sturt on behalf of the Jaru Claim Group:

Jaru People derive their rights and interests in Jaru country through local estate areas, which are their ngurra. Under traditional descent laws, one person may have rights and interests in more than one ngurra through different descent lines.

People may derive or acquire responsibility for ngurra in other ways, such as being born on that ngurra, or because a particular ngurra was the location of a spirit conception site (jarriny) for that person. In this situation however, the enduring and authoritative rights will generally come where there are also descent-based links to ngurra.

100    The role of language in Jaru society was explained at [76]-[77], by reference to the parties’ jointly agreed submissions:

Most of the country in the Determination Area is identified with the Jaru language. However, due to the boundaries with neighbouring groups, along the edges of the Determination Area there are ngurra where people may identify themselves by different language groupings, such as Gooniyandi (in the north-west), Kija (in the north), Walmajarri, Wanyjirra and Ngardi (in the south), Warlpiri (in the south-east), and Mirriwung and Malngin (in the northeast).

These language differences are accommodated within Jaru traditional law and custom. Indeed, there is a category of Dreaming Story in which an ancestral being carries languages and social identities across the landscape, including across the Determination Area. During these travels the being shapes and names places within the landscape until they encounter an obstacle which renders them immobile and unable to travel any further.

(Emphasis added.)

The Malarngowem determinations

101    Immediately to the north and the west of the PDA are the Malarngowem Part A determination (John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697) and Malarngowem Part B determination (Gordon on behalf of the Malarngowem Native Title Claim Group Part B v State of Western Australia [2020] FCA 1149).

102    The Malarngowem determination areas are located “predominantly or wholly within country generally identified with the Kija language”. The native title holders are described in Sch 6(1) as those Aboriginal people who:

(a)    are related through filiation (including by adoption) to one of the Malarngowem Apical Ancestors who held rights and interest in one of the local estate countries comprising the Determination Area; or

(b)    are affiliated to a Malarngowem Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or

(c)    are recognised by the persons described above as:

(i)    holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or

(ii)    holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom.

103    The apical ancestors are listed in Sch 6(2) and included the following names which are also the subject of evidence and argument in this proceeding, in relation to the Purnululu PDA apicals:

Davy Madarning / Mardangin

Jimmy Turrukpany

Nyidanguiny (Father of Dickie Gudangnyi Gali Durrdayny (Jungurra skin) / Tooltany, Paddy Pirtawuny / Bedowyng (Jungurra skin) & Ruby Nganngannil)

104    The apical ancestors Bilal, Dinah Ngowaya, Nyawalapan and Wulawulyan are also listed on both the Malarngowem determinations and the Purnululu claims; however, they did not form part of Purnululu PDA apicals subset. The reasons for the Malarngowem Part A determination at [13] note that “Durukman” was removed from the list of apical ancestors as part of changes that were “unanimously agreed by the Malarngowem claimants”. The reasons give no explanation for this removal, and nor did the evidence led on behalf of the Purnululu applicant.

105    Relevantly to the issues raised by the separate questions, in John on behalf of the Malarngowem Claim Group at [26], Banks-Smith J summarised connection to country in the following way:

(a)    The Malarngowem claimants derive rights and interests in the Determination Area under their system of traditional law and custom through descent to local estate area or taam countries.

(b)    Dr Redmond identifies that filiation (parent-child) relationships and descent (extended lines of filiative relationships) provides the major modality through which claimants assert rights and interests in the country associated with their forebears.

(c)    Dr Redmond notes that while the claim area is located predominantly or wholly within country generally identified with the Kija language, it also includes along the peripheries areas of land where members of neighbouring groupings may hold rights and interests but who may identify themselves principally as Bunuba and/or Gooniyandi, (in the west), Ngarinyin (in the north), Jaru (in the south), Mirriwung Gajerong (in the east) or as a mixture of those languages with Kija.

(d)    The Malarngowem claimants’ laws and customs require them to maintain and protect significant sites within the Determination Area including places imbued with spiritual or cosmological significance. Such places include birth and burial places of claimants’ forebears as well as important Ngarranggarni story sites, and law grounds of various kinds. It is common for important Ngarranggarni places to be associated with age and gender prohibitions which highlight the importance accorded to transmission of cultural knowledge and ongoing respect for the traditions held by the senior generation.

(e)    Shirley Drill in her affidavit demonstrates this by stating:

There are a lot of sacred sites and dreamings in the Area. You need to speak to Patrick Mung about them. We would tell the students where they can go and where they can’t go. If they go to the wrong area, bad things will happen to them. If you respect country, the country will respect you.

(Emphasis added.)

Other surrounding determinations

106    The following determinations are not immediately abutting the PDA but fall within the East Kimberley region. The country comprising the determination areas in each was said to be associated with the Kija language group, whether primarily or alongside other language or dialect groups. I have not set out the basis for inclusion of individuals in the claim group but I note that broadly in each determination the same three criteria are set out. I note also that only two of those criteria are present in the Purnululu applications, and in the Gajangana Jaru application – that is, there is no criterion equivalent to “affiliation” with an apical ancestor, and having a “spirit conception and/or birth sites in one of the local estate countries” in the determination areas.

The Yurriyangem Taam determination

107    Further west of the PDA is an area recognised in the Yurriyangem Taam determination: Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696.

108    The apical ancestors, 87 in total, are listed in Sch 6(2). Relevantly, this list includes “Nydanguiny (Father of Dickie Tooltany, Paddy Pirtawuny and Ruby Nganngannil)”. There are also three other apicals that overlap with the Purnululu claims but are not those contended to be specifically connected to the PDA; namely, Wulawalyan, Nyawalapan (spelt Nyalwalapan on the Purnululu applications) and Bilal. As the Court’s reasons note at [14], the list described in Sch 6(2) does not precisely align with the Form 1 as:

Additional apical ancestors were included and some were removed following further genealogical/anthropological research undertaken by the KLC and in consultation with the Yurriyangem Taam claimants.

109    Dr Redmond supplied an anthropological report as part of the connection material and ethnographic evidence supplied to the Court and the State. In Purdie on behalf of the Yurriyangem Taam Claim Group at [27], Banks-Smith J also notes the other language identifying groups which surround the determination area:

The Yurriyangem Taam claimants derive rights and interests in the Determination Area under their system of traditional law and custom through descent to local estate areas or taam countries. …

While the claim area is located predominantly or wholly within country generally identified with the Kija language, it also includes along the peripheries areas of land where members of neighbouring groupings may hold rights and interests, but who may identify themselves principally as Bunuba and/or Gooniyandi (in the west), Jaru (in the south) or as a mixture of those languages with Kija (Redmond Report).

The traditional laws and customs of the Yurriyangem Taam claimants provide for language difference of this type, including through a category of Dreaming Story in which an ancestral being carries languages and social identities across the landscape. During these travels the being shapes and names places within the landscape until they encounter an obstacle which renders them immobile and unable to travel any further (Redmond Report). …

The Ngarrawanji determinations

110    The Ngarrawanji Part A determination (Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655; 369 ALR 324) and the Ngarrawanji Part B determination (Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929) sit to the south-west of the PDA.

The Miriuwung-Gajerrong determinations

111    The Miriuwung-Gajerrong determination (Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; 134 FCR 16) and the Miriuwung-Gajerrong #4 determination (Ward v State of Western Australia [2006] FCA 1848) cover two larger areas of land to the north-west of the PDA. The Full Court noted at [5]:

Each of Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija is a group identified with a language or dialect. Membership of the groups is by descent from a person who is also identified with such language or dialect and country or by adoption by such a person, in accordance with traditional laws and customs.

The Goorring determination

112    The Goorring determination (Jessell on behalf of the Goorring Native Title Claimants v State of Western Australia [2018] FCA 2047) covers a small parcel of land to the north of the PDA. It was made in favour of:

The native title holders are those Aboriginal people of the Miriuwung, Kija and Wularr language or dialect and country the subject of the determination who hold in common the body of traditional law and customs governing the area the subject of the claim.

The relevance of surrounding determinations

113    The point of referring to these surrounding determinations is at least threefold. First, to demonstrate that although the separate questions, and the evidence adduced in order to answer them, might tend to suggest that geographical boundary lines can be drawn around rights and interests in the PDA, that is not the case, and individuals who are current descendants in either of the claim groups in these proceedings have connections, sometimes through the same apical ancestors, to surrounding country as well. Second, the surrounding determinations confirm the role played by language identity, for better or for worse. It cannot be ignored. Third, insofar as the same apical ancestors (such as Turrukpany, and Jalwarta, through his father) are identified in some of the surrounding determinations, this is a consideration to take into account, in my opinion, in resolving what are the appropriate answers to the separate questions, in terms of the location and breadth of likely areas of country for certain apical ancestors. As will become apparent later in these reasons, the Jaru determination has particular significance for some of the findings on the separate question.

SUMMARY OF THE PARTIES’ CONTENTIONS

On Questions 1 and 2

The Gajangana Jaru applicant

114    The Gajangana Jaru applicant submits that Questions 1 and 2 should be answered in the affirmative. That is, it submits that (a) Jalwarta and his siblings, (b) Bulugul and her siblings and (c) Nelson each possessed rights and interests under traditional law and custom in the PDA to the exclusion of all or any of the other apical ancestors identified in the Purnululu applicant’s further amended Form 1 listed above.

115    Specifically, it submits that the evidence establishes that the following individuals had native title rights and interests in the PDA:

(a)    Jalwarta;

(b)    Jalwarta’s siblings:

(i)    Nelson;

(ii)    Dirmirra; and

(iii)    Gadbawu-ngana;

(c)    Bulugul;

(d)    Bulugul’s siblings:

(i)    Gagai;

(ii)    Bungul;

(iii)    Flora Mayilba (possible classificatory relationship);

(iv)    Wulmarriya; and

(v)    Mountain.

116    The Gajangana Jaru applicant submits that the evidence of its witnesses should be accepted to the effect that Jalwarta had rights and interests in all or part of the PDA associated with the Turner area through:

a.    filiative links to Jadbiya or another unnamed Gajangana Jaru mother who had rights and interests that area;

b.    filiative links to Dirril or another unnamed Malngin father connected to that area associated with the Malngin language (including the Mount Glass area);

c.    having the language identity for that country including the particular language identity Gajangana Jaru;

 d.    dwelling in that locality over a long period;

 e.    carrying the law for that area; and/or

f.    being associated with a dreaming/mythological presence in relation to that locality.

(Footnotes omitted.)

117    The Gajangana Jaru applicant contends that the facts relied on by the Purnululu applicant to contend that Jalwarta’s country is said by some to be in the Ringer Soak area (south-east of the PDA) are not inconsistent with the proposition that Jalwarta had traditional rights and interests in the PDA, because “[e]vidence that Jalwarta either worked, periodically lived at or visited Ringer Soak, proves only that he may have lived there at times”.

118    In relation to Bulugul and her siblings, the Gajangana Jaru applicant submits that they possessed rights and interests in the PDA through their father, Durrukman. It contends that Jimmy Turrukpany, a Purnululu apical ancestor, and Durrukman are the same person, and that the difference between the names is only a question of orthography.

119    The Gajangana Jaru applicant contends the PDA is Jaru and Malngin country and the Gajangana Jaru apical ancestors exercised their rights as Gajangana Jaru People and Malngin People. Specifically, it submits that the north-eastern part of the PDA and other areas generally east and north-east of the PDA is Malngin country, and that Bonnie Edwards and the descendants of Nelson and Yiliyarri have rights and interests in this area through Nelson and Jalwarta’s father Dirril, a Malngin man. The rest of the PDA, it submits, was and continues to be associated with the Jaru language and the Jaru People, and what it describes as the Gajangana Jaru People in particular.

120    The Gajangana Jaru apical ancestors are contended to have exercised their rights and interests in circumstances where no apical ancestors identified by the Purnululu applicant held rights and interests in the PDA. In particular, the Gajangana Jaru applicant contends:

i.    the evidence does not establish that the Unnamed Father of Paddy Pirtawuny, Dicky Tooltany and Nganggannil, Mulkparriya; and Davy Madarning had rights and interests in the PDA because they were from Jarlarlu, which does not extend into the PDA;

ii.    there is not sufficient evidence to establish that Girnyan, Kemintal and Mungamungagatsdil had rights in the PDA; and

iii.    other apical ancestors named in the Purnululu Claim are not said by the Purnululu Applicant to possess rights and interests in the PDA.

121    In the alternative (and briefly), the Gajangana Jaru applicant submits that if that Court finds that Jaru and Malngin people did not have rights and interests in the whole of the PDA to the exclusion of the Purnululu apical ancestors, then it would still be open to the Court to conclude that Jaru and Malngin people were connected to the whole of the PDA and entitled to a determination of native title in their favour. It submits that such a finding would be consistent with the determination in respect of the entitlement of Miriuwung people to native title in Ward on behalf of the Miriuwung and Gajerrong People v Western Australia [1998] FCA 1478; 159 ALR 483 at 546-7. It acknowledges that the ultimate form of such a determination may depend on the form of any new or amended claim or claims following determination of the separate questions. The object of this contention appears to be to invite the Court, in the alternative, to find that there are two native titles held over the PDA: one held by those descended from the Jaru-identified apicals; and another, separate native title held by Kija-identified apicals. Such a contention is outside the scope of the separate questions.

The Purnululu applicant

122    The Purnululu applicant submits that questions 1 and 2 should be answered in the negative. It submits that the Court should make the following findings of fact and that the questions should be answered on the basis of those findings:

(a)    Jalwarta did not possess rights and interests (hereinafter simply called rights) under traditional law and custom in the PDA;

(b)    Jalwarta’s siblings were at least Albert Manyeri, Edie Numara and Wingu Numara, but they did not possess rights under traditional law and custom in the PDA;

(c)    Bulugul possessed rights under traditional law and custom in the PDA in the Mindi Mindi area;

(d)    Bulugul’s sibling or step-sibling was Flora Mayilba Turner (Mayilba), and she too possessed rights under traditional law and custom in the same part of the PDA;

(e)    Nelson possessed rights under traditional law and custom in the PDA in the Mindi Mindi area.

123    The Purnululu applicant submits that Jalwarta’s country was in Gordon Downs/Ringer Soak area, south of the PDA.

124    Although the Purnululu applicant agrees that Nelson had rights and interests in the PDA, it submits Nelson was not a sibling of Jalwarta and that they had different country affiliations.

125    In relation to the Purnululu apical ancestors, and putting to one side its contention about the separate questions not giving rise to this issue at all, the Purnululu applicant’s primary submission is that it is not required to prove that its apical ancestors had rights and interests in the PDA because the Gajangana Jaru applicant bears the onus of establishing that they are excluded from the PDA. I address the debate between the parties about onus of proof later in these reasons. In the alternative, the Purnululu applicant contends that the evidence does establish that the Purnululu apical ancestors possessed rights and interests in the PDA.

The State

126    The State took a modest but helpful role in the on-country hearings, generally supporting the Purnululu applicant’s case. In written closing and reply submissions it adopted the submissions of the Purnululu applicant, albeit it made some additional and helpful submissions about the issues. I refer to the State’s specific submissions where necessary in these reasons.

127    The State also contended in closing submissions that the draft minute of consent determination of native title, filed on 6 August 2018 in the Purnululu #1 claim proceedings, continues to accurately reflect the native title holding group of the PDA subject to

the inclusion of the additional apicals identified in evidence and proposed by Dr Redmond, namely Walambal (mother of Judy Turner), the unnamed mother of Ruby Ngadayi (grandmother of Yiliyarri and Molly Gore), and the further amendment suggested by Dr Redmond to change the apical ancestor for Bulugul and Mayilba to be the unnamed mother rather than unnamed father.

(Footnotes omitted.)

On Question 3

The Gajangana Jaru applicant

128    The Gajangana Jaru applicant submits that Bonnie Edwards and Lily Banks and their descendants possess rights and interests under traditional law and custom in the whole of the PDA through their maternal grandfather, Fred Jalwarta, and, or alternatively, through their classificatory relationship with Tanba Banks’ biological father, Paddy Jandiyarri Turner.

129    In relation to Fred Jalwarta, the Gajangana Jaru applicant submits that the evidence of the three women should be accepted over the evidence of the Purnululu applicant witnesses and Dr Redmond. The three women’s evidence is that they know Jalwarta to be their grandfather and that they know him to have had a traditional connection to the PDA. The Gajangana Jaru applicant says the contrary evidence relies on inaccurate historical records and on discounting the evidence of the Gajangana Jaru witnesses. It is fair to say that an important component of the contentions of the Gajangana Jaru applicant was that the Court should assess, and if appropriate rely upon, the evidence of Aboriginal witnesses, in preference to the evidence of anthropologists, ethnographers or historians, and in preference to documentary sources.

130    In relation to Paddy Jandiyarri Turner, the Gajangana Jaru applicant contends that under traditional law and custom, individuals can, and Bonnie Edwards and Lily Banks do, take rights and interests through a classificatory relationship with a mother’s husband. Further, it submits that even if this were not the case at sovereignty, “there has been a permissible adaptation of those laws to provide for a child with a European father to acquire rights by filiation through close kinship relationships with their mother’s former husband”. This adaptation would apply to Mrs Edwards. It submits that those rights and interests do not need to be recognised (or accepted) by the wider group or community in order to exist.

131    Further and in the alternative, the Gajangana Jaru applicant submits that if the Court finds that Gagai was Bulugul’s sister and possessed rights and interests in the PDA, then Lily Banks possesses rights and interests through Gagai, who is her father’s mother.

The Purnululu applicant

132    The Purnululu applicant denies the Gajangana Jaru applicant’s contentions. There is no dispute that Jalwarta is the maternal grandfather of Bonnie Edwards and Lily Banks: this was a matter of common ground and the experts also agreed on this matter during the experts’ conference. However, as I have explained, the Purnululu applicant contends Jalwarta’s country was to the south-east of the PDA.

133    In relation to Paddy Jandiyarri Turner, the Purnululu applicant accepts that Tanba Banks and her descendants have rights in the PDA through Paddy Jandiyarri Turner because of a genealogical relationship back to Bulugul, a nominated apical on all claims. However, it denies that a classificatory relationship is a pathway by which Bonnie Edwards and Lily Banks could have acquired rights in the PDA under traditional law and custom. That is because even if such a classificatory relationship could confer rights (about which the Purnululu applicant’s submissions were somewhat indecisive), there must be recognition by the Purnululu claim group of that fact, and there is not.

134    The Purnululu applicant submits recognition is a requirement under traditional law and custom for the inclusion of any persons who are outside the core pathways of group membership; namely, descent and customary adoption. It accepts that for people within those “core” pathways, recognition by the group is not a superadded or superimposed requirement. While it accepted that there may be circumstances where a close classificatory kinship relationship in combination with other facts may lead to recognition of person as a part of a group and therefore as acquiring the rights and interests in land held by the person with whom they have a classificatory relationship, it submits that these circumstances are exceptional and do not exist in the case of Mrs Edwards and Mrs Banks. It contends that the Gajangana Jaru claims, both formal and informal, “do not have, and since 1992 have not had, acknowledgement and acceptance amongst the relevant community or jural public”. The question of who is the relevant “community” is assumed in this submission, but as I explain later in these reasons, I do not agree with that assumption.

135    The only other pathway the Purnululu applicant accepts would be available is customary adoption, and it contends there is no evidence of that occurring between Paddy Jandiyarri Turner and Bonnie Edwards and Lily Banks, or either of them.

The State

136    Aside from its general agreement with the case of the Purnululu applicant, the State submitted in relation to Paddy Jandiyarri Turner:

For Lily and Bonnie to establish that they have rights in the PDA through Paddy Turner, their mother’s first husband whom neither of them met, they must show that under the traditional law and custom of the PDA there is a rule or other process that allows for those rights to be accepted or recognised. …

It is clear from the authorities considered in the Purnululu Closing Submissions … that incorporation of people who are neither descended from an apical ancestor, nor adopted and grown up by a non-biological parent, requires community recognition and acceptance under traditional law and custom.

There is no current recognition by the Purnululu claimants that Lily Banks and Bonnie Edwards possess any rights and interests under traditional law and custom in the PDA through Paddy Jandiyarri Turner, and the Gajangana Jaru claimants’ denial since 1992 of Purnululu claimants’ rights and interests in the PDA has clearly halted the process of recognition that was underway at that time.

What would be needed, to reactivate the process for recognition is, in Dr Redmond’s view “sustained interaction of acknowledgement and participation with other groups holding rights and interests in country.”

(Footnotes omitted.)

EVIDENCE

137    In both the Purnululu claims, and the Gajangana Jaru claim, not all of those individuals who are listed as members of the applicant gave evidence. There was evidently considerable selection on who should give evidence, especially on the side of the Purnululu applicant, although there are no doubt a range of valid forensic and logistical reasons for the choices made. I draw no adverse inferences from that fact.

138    In this section I also set out the parties’ submissions, and make findings about, those lay witnesses whose evidence appeared particularly contentious. Where I do not refer to a witness’s reliability or credibility in this section, that is generally because I explain my assessment of their evidence in a later section about particular factual issues. As a general finding, I accept every single lay witness did her or his best to give a truthful account of her or his understanding of the matters they were asked about. During the on-country hearing, and during the expert evidence, I took contemporaneous notes of my impressions of the witnesses and of the evidence they gave, and I have relied on those notes, as well as a careful reflection about the parties’ submissions and the evidence to which those submissions refer, in making my findings.

The witnesses called by the Purnululu applicant

139    The Purnululu applicant relied on written and oral evidence from 14 lay witnesses, all of whom are claim group members. I have grouped them by reference to the apical ancestors through whom they claim, because that is of some significance in understanding the relationships between the Purnululu group and the Gajangana Jaru group.

140    Those who claim rights and interest in the PDA through Kemintul and Jimmy Turrukpany:

(a)    Shirley Drill;

(b)    Warren Drill;

(c)    Ricky Drill;

(d)    Josie Drill;

(e)    Kitty Nocketta;

(f)    Cherylene Nocketta; and

(g)    Jeremy McGinty.

141    Those who claim through Davy Mardangin:

(a)    Nancy Nodea.

142    Those who claim through the unnamed father of Bulugul and Flora Mayilba:

(a)    Mrs D.M. (who primarily claimed through this ancestor on her father’s (David Turner’s) side, but also claimed through other apicals on her mother’s side); and

(b)    Ivan Turner.

143    Those who claim through the unnamed father of Paddy Pirtawuny, Dicky Tooltany and Nganggannil:

(a)    Mrs D.M. said she could also claim through this apical ancestor on her mother’s (Judy Turner’s) side, saying “I can go both ways”;

(b)    Eileen Bray;

(c)    Sophia Mung;

(d)    Paul Butters; and

(e)    Johnathan Johnson Jnr.

144    Mrs D.M. also claimed through her mother Judy Turner to the ancestor Walambal.

145    The following witnesses also claimed through Mungamungagatsdil:

(a)    Sophia Mung;

(b)    Paul Butters; and

(c)    Johnathan Johnson Jnr.

146    The Purnululu applicant relied on written evidence from Mr B.D., who was not a claim group member. He was expected to give oral evidence at the on-country hearing, but was ultimately unable to do so due to ill-health, the circumstances of which are set out in the affidavit of Philip Ramsay affirmed on 26 August 2019, and which it is not necessary to set out in these reasons. There was no objection to his statement being tendered.

147    In addition, the Purnululu applicant adduced evidence of statements made by now deceased members of the Purnululu claim group; namely, the affidavit of Jack Britten and the video tape and partial transcript of Nancy Williams’ interview with Judy Turner.

A general finding about the Purnululu witnesses

148    The oral lay evidence was adduced on behalf of the Purnululu and Gajangana Jaru applicants in quite different ways. As I observed to counsel at several points during the on-country hearing, the Purnululu witnesses were being asked obviously leading questions in their evidence-in-chief. I accept it is appropriate to make allowances for the reticence of lay witnesses, challenges in listening to questions and answering questions in English, and for their reluctance in giving evidence at all in circumstances where there was a level of animosity between people who are related to one another. I have taken all such matters into account in assessing the reliability of the evidence given by all the lay witnesses.

149    However, there comes a point at which the extent of leading questions simply deprives the witnesses’ answers of much probative value at all. The evidence is in substance being given by the questioner. That is especially so when one takes account, as I consider it is appropriate to do, of the well-recognised feature of the evidence of many Aboriginal and Torres Strait Islander people that they may express “gratuitous concurrence” with what a questioner says: see my reasons in Wotton v State of Queensland (No 5) [2016] FCA 1457 at [931], and Dowsett J in Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 at [86].

150    As Sackville J noted in Jango v Northern Territory of Australia [2006] FCA 318 at [297]-[298], the phenomenon of “gratuitous concurrence” should not and cannot be used as a way of avoiding the consequences of evidence unfavourable to one party. There is a balance to be struck between, on the one hand, appreciating the challenges faced by some (but not all) Aboriginal and Torres Strait Islander people in giving evidence, taking into account cultural norms or tendencies in some witnesses, and on the other, the need for the Court to assess the reliability of such witnesses, for the same purposes it must assess the reliability of all witnesses in any proceeding where evidence is contested.

151    The point I wish to emphasise here is that, whatever the explanation be, there was a material portion of the evidence of several of the Purnululu witnesses where they were doing no more than agreeing with the propositions put by the questioner and did not appear to me to be demonstrating any active and independent recollection or knowledge about the subject matter of the evidence.

152    One example is the following exchange in Shirley Drill’s evidence-in-chief:

MR KEELY: What was his name? So father for Yilliyarri?

SHIRLEY DRILL: Forget his name, that old man.

MR KEELY: Let me see if this one’s right. Nelson?

SHIRLEY DRILL: Yes.

153    Another is the following:

MR KEELY: Yes. [Mrs D.M.], just want to ask you, first of all, the lady in the video: what’s that?

[Mrs D.M.]: That’s my mum.

MR KEELY: Your mum

[Mrs D.M.]: Yes.

MR KEELY: That’s your mum. Do you remember who the people who are asking the questions were?

[Mrs D.M.]: Was that – it was Ann and Neil I think.

MR KEELY: You think Ann and Neil.

[Mrs D.M.]: Yes.

154    That was clearly not the answer counsel was expecting. The next question was this:

MR KEELY: Right. If you don’t agree with this you say so but, that American lady: was that Nancy Williams?

MS GEORGIOU: Well, she’s just given evidence - - -

HER HONOUR: Well - - -

[Mrs D.M.]: Yes.

MS GEORGIOU: - - - of who she remembered it was.

HER HONOUR: - - - Mr Keely you can’t lead like that. She’s given an answer.

MR KEELY: Okay, well, we’ll – we’ll ask somebody else about it, your Honour.

155    A further example is the evidence of Paul Butters:

MS SHEEHAN: In your law, can people come out here without permission?

PAUL BUTTERS: Yeah, well, like we’re saying, we all travel around right out through the country. All the Kija people travel together. Or we bring our people or friends out whenever we want to.

MS SHEEHAN: So you’ve got the right to bring people here.

PAUL BUTTERS: Yeah.

MS SHEEHAN: But people who don’t speak for this country, are they allowed to bring people?

PAUL BUTTERS: Yeah, yeah.

MR McINTYRE: A leading question.

HER HONOUR: It was rather leading, Ms Sheehan.

156    A final example is the following evidence of Jeremy McGinty:

MR KEELY: So this was in the context of your ranger work; is that right?

JEREMY McGINTY: Yes. That’s me coming from my break.

MR KEELY: So you had come off a break.

JEREMY McGINTY: Yeah.

MR KEELY: And this was something that was said, you know, when you go back - - -

HER HONOUR: Mr Keely, I haven’t interrupted you before during this proceeding, but at the moment I would really like you not to lead as much, please.

MR KEELY: Certainly, your Honour. You tell the story your own way, please.

157    The evidence of Shirley Drill was submitted to be affected by this feature, but she is not the only witness. The Purnululu applicant responded that either the matters on which leading questions were asked were common ground, or the Gajangana Jaru applicant’s counsel conducted examination in chief in the same way, or no objection was taken. I do not accept those submissions. Having now reviewed the transcript, including the evidence-in-chief of Shirley Drill, it is apparent a significant proportion of her evidence-in-chief was adduced through leading questions. I made contemporaneous notes of this feature of her evidence, as I did of other Purnululu witnesses. It is not necessary to give further examples in these reasons, but any perusal of the transcript will reveal the number of times Mrs Drill, and other Purnululu witnesses, were simply able to answer “yes” as their evidence, indicating the substance of the evidence was in the question, not the answer. Further, I do not consider the Gajangana Jaru applicant’s evidence was as obviously affected by leading questions; that is also clear from a review of the transcript. However, there are parts of Lily Banks’ evidence to which I refer later in these reasons where in my opinion she was tending simply to agree with the questioner, without demonstrating any independent engagement with what she was being asked.

158    It has been necessary for me to reflect carefully on the evidence-in-chief of the Purnululu witnesses, taking this matter into account, but also recalling the matters to which I have referred above. In some circumstances, it has led me to place less reliance on aspects of their evidence-in-chief. In others, it has contributed to my general assessment of the particular witness, in terms of the depth or strength of their recollection or knowledge. In yet others, some of the answers to leading questions were of little consequence. It is a feature which cannot however be simply passed over. Contrary to the submissions of the Purnululu applicant, the absence of an objection is not the end of the matter: as I noted above, the extent of leading questions can simply deprive the answer of any real probative value because the evidence is given by the questioner. Even though leading questions are considered permissible in cross-examination, the same proposition can apply.

Shirley Drill

159    Shirley Drill is a Kija elder and one of the key witnesses in the hearings. She is a descendant of the apical ancestors Jimmy Turrukpany and Kemintul through her mother, Mona Springvale (or Wallaby) (known as Galjangarri in the Kija language), although this descent pathway is disputed by the Gajangana Jaru applicant. Mrs Drill’s evidence is that Mona Springvale was a daughter of the person known as Liddy/Edie, said by the Purnululu applicant to be the granddaughter of Jimmy Turrukpany and Kemintul.

160    Mrs Drill was around 70 years old at the time of the on-country evidence. She was married to Marshall Drill, a Kija man, and together they had nine children, three of whom gave evidence in this proceeding; namely, Ricky Drill, Josie Drill and Warren Drill. She is related (using that term in a non-Aboriginal way) to several other witnesses: she is the grandmother of Jeremy McGinty (who is Josie Drill’s son) and she is a cousin of Cherylene Nocketta and Kitty Nocketta (who are granddaughters of Shirley Drill’s mother’s sister, Dolly Marrkparriya). She is also related through marriage to Eileen Bray, whose mother’s older sister, Bessie, was married to her uncle Raymond Wallaby.

161    In evidence, Shirley Drill described her connection to the PDA through her mother’s side. Her explanation of how she came to feel responsible for looking after the country in the PDA centres on her “grandfather”, Mountain, and her uncle, Raymond Wallaby. In evidence-in-chief at Kawarre she said:

SHIRLEY DRILL: From my grandfather, my grandfather stay here and raised this place up.

MR KEELY: What was his name?

SHIRLEY DRILL: Mountain.

MR KEELY: When you have a bush name that comes from a particular place, how does that make you feel about that place?

SHIRLEY DRILL: Good.

MR KEELY: Can you tell us anything more?

SHIRLEY DRILL: Yes, it make me proud of my place, this is my Kija from my uncle and my grandfather.

162    The “uncle” Mrs Drill refers to is Raymond Wallaby.

163    There was evidence that Mrs Drill also identified a connection to country west of the PDA through her father, either around Springvale or Bedford Downs and that her attachments to the PDA were somewhat more recent. Dr Levitus, an anthropologist who worked in the region and whose work I discuss later in these reasons, said in a report in 2007:

It is uniformly stated by a range of informants that Ms Drill’s primary attachments to country are to the west of the Park, either at Springvale or Bedford Downs. A number identify her place as a range of hills called Darrajayn, and some specify the location of Billy Mack Spring. This is said to have been the country of her father, Paddy Springvale, or Yangkarnji. Travelling south along the Great Northern Highway, at the northern boundaries of Alice Downs and Springvale stations, the recently-deceased senior Jaru man [David Turner] directed my attention to a long north-south range visible to the west of the road, and identified that range as Ms Drill’s country. Ms Drill also has a substantial life-history connection to that area, having been born, grown up and attended school at Springvale, before later moving with her family to Alice Downs and Turner River stations. Paddy Bedford, the senior traditional owner for Bedford Downs, says that Ms Drill has rights at Muntuwurrji, old Bedford, but ‘she go uncle side now’ instead, referring to her link to the Bungles through her mother’s brother Raymond Wallaby.

164    As the Purnululu applicant fairly recognised in its closing submissions, there were times at which Mrs Drill was “begrudging” about acknowledging the rights and interests in the PDA of Tanba Banks, no doubt because of her core involvement in the Gajangana Jaru claim, and before that the Jindigarri claim. As I have noted earlier, the acrimony was such that despite it being factually incorrect, Tanba Banks was singled out and named in the Purnululu applicant claim group description as excluded. I accept that an assessment Mrs Drill’s evidence, like an assessment of Mrs Edwards’ evidence, and indeed the evidence of Tanba Banks and some of the other Purnululu witnesses needs to take account of the effect this acrimony has on what people are willing to admit, at least in a public forum such as a court proceeding. These matters also affected some witnesses’ demeanour: in Bonnie Edwards’ case, as I have found below, it tended to make her exaggerate and become belligerent. In Mrs Drill’s case she became less forthcoming, sometimes begrudging. Just as I have found with Bonnie Edwards, whether or not these matters affect the reliability of any key aspects of their evidence needs to be assessed in making findings about the particular evidence in issue, rather than making any global findings for or against reliability.

165    Overall, and despite the matters to which I have referred, I found Mrs Drill to be a genuine, serious and considered witness. Her responses during cross-examination were firm, and although it was clear there were times she was angry and upset about the subject matter of the cross-examination, taking into account the acrimony which exists, that is understandable and indeed reinforces that she was being honest in the way she presented to the Court.

166    It was clear to me that Mrs Drill knew the country of the PDA very well; it seemed to me she carried visual images in her mind as she gave her evidence. She was not the only witness to do this, but that was a strong impression I have of her evidence.

Josie Drill

167    Josie Drill is the third child of Shirley Drill and Marshall Drill, and therefore through her mother she is asserted to be a descendant of Turrukpany and Kemintul. Her first husband was a Kija man named Neil McGinty, with whom she had four children, including Jeremy McGinty, another witness.

Cherylene Nocketta

168    Cherylene Nocketta is also a descendant of Turrukpany and Kemintul through her jaja (mother’s mother), Dolly Marrkparriya, who the Purnululu applicant contends is Turrukpany and Kemintul’s granddaughter.

169    Miss Nocketta is the second child of Nora Nocketta and Daylight. Her older sister Kitty Nocketta also gave evidence.

170    I note here that the second husband of Miss Nocketta’s jaja (Dolly) was Paddy Junnga. Paddy Junnga was the brother of Topsy Dangai Banks, the mother of Tanba Banks, Lily Banks and Bonnie Edwards. Paddy Junnga and Topsy Dangai Banks were Fred Jalwarta’s children.

Ricky Drill

171    Ricky Drill is the fourth child of Shirley Drill and Marshall Drill and therefore also claimed to be a descendant of Turrukpany and Kemintul through his mother.

172    In his written evidence, Mr Drill refers to Raymond Wallaby, his grandmother’s brother, as “grandfather”. He recounts that Raymond Wallaby arranged for him to go through the law at Warmun.

173    Mr Drill gave his evidence in a careful and measured way, and my firm impression was that he took the role he had in the trial, but also in the overall dispute about the PDA, seriously. The evidence he gave at Limestone Cave, the site of the “sacred objects” narrative, discussed, below, reflected the seriousness and respect he had for the place and for its significance. That area is not far from a men’s business area, and the way Mr Drill gave his evidence made it clear this was a serious matter for him. My impression is that he brought a strictness in his attitude to matters of law and custom, especially men’s business, which reflects his position within the Purnululu claim group members on these matters.

174    In cross-examination, the way he gave his evidence changed markedly. He looked away, looked down, and gave fairly non-responsive answers. I attribute that change to his hostility to the Gajangana Jaru claim. He refused in substance to give any positive evidence about Vincent Edwards, even on matters which should have been relatively non-controversial. I do not see that as affecting the reliability of any evidence he gave on key matters but rather as a reflection of the divisions that now exist.

Kitty Nocketta

175    Kitty Nocketta is the eldest child of Nora Nocketta and the older sister of Cherylene Nocketta. Her father was Willy Grant, also known as Daylight. Like her sister, she claimed to be a descendant of Turrukpany and Kemintul through her jaja Dolly Marrkparriya and she is related through marriage to Tanba Banks, Lily Banks and Bonnie Edwards through her jaja Dolly’s second husband, Paddy Junnga.

Sophia Mung

176    Sophia Mung is the daughter of Beryline Mung, and the granddaughter of George Mung Mung and Buttercup Mung. Through her grandparents she is a descendant of two apical ancestors: Mungamungagatsdil through her grandfather, and the unnamed father of Paddy Pirtawuny through her grandmother. Paddy Pirtawuny was the father of Buttercup Mung. Sophia Mung identified her country as Jarlarlu, and that is an identification to which I return later in these reasons.

177    Miss Mung is related to the Butters family through her grandmother, Buttercup Mung. Prior to marrying George Mung Mung, Buttercup had a son named Sam Butters, whose father, Sam Muggleton, was the white owner of the Frog Hollow Station. Members of the Butters and Mung families are members of the Purnululu claim group and both Paul Butters and Johnathan Johnson Jnr, who are, respectively, second and third generation descendants of Buttercup Mung, gave oral evidence.

178    Miss Mung teaches at the Purnululu School. Her evidence was given with confidence. There were a number of topics where she simply would not give answers in cross-examination, for example, the following cross-examination which was based on statements by Buttercup Mung (Miss Mung’s grandmother) to Dr Levitus in 2005:

MS GEORGIOU: And so if she said to you that Blue Hole was [Jaru] all around, would you listen to her?

SOPHIA MUNG: No.

MS GEORGIOU: You wouldn’t? Why [not]?

SOPHIA MUNG: Because she wouldn’t say that.

MS GEORGIOU: But if she did – just imagine if she said that to you, that she tells you that that was Jaru all around, would you listen to her?

SOPHIA MUNG: I don’t want to answer that one.

179    Again, the divisions between the groups can be seen in these kinds of answers. Miss Mung displayed determination not to assist the Gajangana Jaru applicant’s case in any way. Given the acrimony, I make no criticism of her for that: whether or not it means that aspects of her evidence should be rejected depends on how critical they are, and the context in which those particular aspects of her evidence arise.

Johnathan Johnson Jnr

180    Johnathan Johnson Jnr is the son of John Johnson and Sharon Butters. His maternal grandmother Jane Butters is the great granddaughter of Paddy Pirtawuny, whose unnamed father is an apical ancestor. His uncle, Paul Butters, also gave oral evidence in this proceeding. His aunt, Judy (Judith) Butters, is a member of the applicant in the Purnululu #1 claim. Mr Johnson Jnr also identified his country as Jarlarlu.

Nancy Nodea

181    Nancy Nodea is the daughter of Julie Nudai and Willie Cann. Through her parents, she is a descendant of two apical ancestors. Her father’s Aboriginal father was Junbaynngulu, whose unnamed mother is another Purnululu apical ancestor, although this apical did not form part of Purnululu PDA apicals subset. Her mother was the daughter of the apical ancestor Davy Mardangin. Her written evidence was:

My main country is Ngarrkuruny, which is the Osmond Range between Texas Downs and Kawarre in the north of the Park I got that country on Texas from my mum and dad. That was their country too.”

Warren Drill

182    Warren Drill is the eighth child of Shirley Drill and Marshall Drill. Like his siblings Josie and Ricky Drill, he said to be a descendant of Turrukpany and Kemintul. In his written and oral evidence, Mr Drill referred to Raymond Wallaby, his mother’s mother’s brother, as “grandfather”. In his written evidence he identifies the Bungle Bungles and Chinaman’s Garden (also known as “Yarrunga”) outside and to the south-west of the PDA and outside the larger Purnululu claim area altogether as the most important country for him and his siblings.

Paul Butters

183    Paul Butters is the son of Sam Butters and Jane Butters, and has eight siblings (one of whom is deceased). His older sister Judy (Judith) Butters is a member of the Purnululu applicant, but did not give evidence, although she was mentioned by other witnesses, notably Sophia Mung. Through his paternal grandmother, Buttercup, he is also descendant of the unnamed father of Paddy Pirtawuny.

184    As I have noted above, Mr Butters’ father Sam was the child of Buttercup and Sam Muggleton, a white station owner. Buttercup subsequently married George Mung Mung. In his written evidence, Mr Butters refers to George and Buttercup’s children, the Mung family, as “[his] close family also”.

185    Mr Butters worked as a ranger in the Purnululu National Park for around five years, and he currently sits on the World Heritage Advisory Committee for the park.

Mrs D.M.

186    Mrs D.M. was the daughter of David Turner, a Jaru man, and Judy Turner, a Kija woman. Through David Turner she was a descendant of the Purnululu apical ancestor identified as the “unnamed father of Bulugul and Mayilba”. David Turner was the son of Bulugul. Her father had two brothers: Paddy Jandiyarri Turner (Tanba Banks’s father) and Alec Turner. He also had another brother, Raymond Turner, who Mrs D.M. states in her written evidence had a kartiya (white) father. As I have noted earlier, Raymond Turner was the father of Mona Phillips.

187    Through her mother Judy Turner, Mrs D.M. was also a descendant of the Purnululu apical ancestor Dickie Tooltany, her mother’s father.

188    Mrs D.M. married Jock Mosquito in 1969 and together they had eight children. Their eldest child, Timothy Mosquito, is a member of the Purnululu applicant. While he did not give formal evidence, he did make some contributions during the site visits.

189    Mrs D.M. attended the hearing after having recently undergone cataract surgery and she was in visible pain and ill health while giving evidence. I accept this constrained both the content and the length of her evidence; however, the fact she attended to give evidence also demonstrated her commitment to contributing to the evidence for the Purnululu applicant. She passed away in May 2020.

190    My impression of Mrs D.M. was that she was a fairly traditional woman and quite reserved. However, her antagonism towards Mrs Edwards in particular was obvious, some of it stemming from Mrs Edwards’ mixed heritage. Mrs D.M. said this in re-examination:

MR KEELY: What do you say about Bonnie, does she have any rights through Bulugul or no?

[MRS D.M.]: She’s got no right but Old Tanba can be here he’s here because she’s from a white man’s father and she isn’t our grandmother. Bonnie, she’s using my grandmother, only Tanba.

(Transcription errors corrected as agreed between the parties.)

191    In examination in chief, the following passage also reflects her implacable position about Mrs Edwards:

MR KEELY: You know, [Mrs D.M.], do you that there’s a claim that Bonnie and her mob have put over the national park?

[MRS D.M.]: Yes.

MR KEELY: How does you and your family feel about that?

[MRS D.M.]: Feeling guilty about that.

MR KEELY: Why?

[MRS D.M.]: Using our crippled people and showing your country. He hardly have a stroke. My cousin brother didn’t hardly spoke.

MR KEELY: That’s Yilliyarri?

[MRS D.M.]: Yes.

MR KEELY: I can see you’re a bit steamed up about it. Is it just you, [Mrs D.M.]? What about the rest of your family?

[MRS D.M.]: Well, the rest of my families are really upset too.

MR KEELY: What do you say, [Mrs D.M.], about whether Bonnie comes in for the park or not? You’re shaking your head.

[MRS D.M.]: Yes.

MR KEELY: You need to say it, though, [Mrs D.M.], so that it gets recorded. Do you want me to - - -

[MRS D.M.]: Yes.

MR KEELY: Sorry?

[MRS D.M.]: It’s alright.

MR KEELY: What do you say – I’ll just ask that question again. What do you say about Bonnie having country inside the park?

[MRS D.M.]: That’s not right. It’s wrong.

192    The State submitted that Mrs D.M. was “a particularly compelling witness” in terms of reliability and credibility. It contends that she has “strong connections” to both the Gajangana Jaru witnesses and the Purnululu witnesses and is “a senior woman but ‘at the margins’ of the current dispute because her main country lies to the south” of the PDA. The features the State refers to can be accepted. However, her evidence was also obviously affected by animosity towards Mrs Edwards.

193    The question of Mrs D.M.’s evidence about what was on the video of Judy Turner is dealt with below in the section headed “The importance of the video interview of Judy Turner”.

Ivan Turner

194    Ivan Turner is the son of Allan Turner and Christine Wright. Through Allan Turner he is a descendant of the apical ancestor identified as the unnamed father of Flora Mayilba. Flora Mayilba was his paternal grandmother. It is an agreed fact that Flora Mayilba is a sister or half-sister of Bulugul.

195    In his written evidence, Mr Turner states that his grandmother Mayilba had another daughter, named Sheila Turner, who was the mother of James Churchill and his sisters. He also talks about his close relationship with David Turner, the son of his grandmother Mayilba’s sister, Bulugul. He says that Uncle David was his “main teacher” about country and culture. He refers to the children of David Turner and Sheila Turner as his “cousin brothers and sisters” and states he has “always been close” to the children of Sheila Turner and to David Turner’s daughter Mrs D.M.

Jeremy McGinty

196    Jeremy McGinty is the son of Josie Drill and Neil McGinty, and the grandson of Shirley Drill. He has three sisters.

197    Through his mother, Mr McGinty is said to be a descendant of Turrukpany and Kemintul through his maternal great grandmother, Mona Springvale.

198    In his written evidence, Mr McGinty states that he knows his grandmother Shirley Drill’s country around Kawarre “really well”, and that he often goes hunting on his grandmother’s country with younger men in his family, including Ricky Drill, Warren Drill and Johnathan Johnson Jnr. He did some ranger work in the Purnululu National Park for around a year.

199    Mr McGinty was not present when he was scheduled to give evidence, and had to be located and interposed later in the Purnululu applicant’s evidence. It was my impression he did not want to give evidence. I accept he feels an attachment to the PDA and considers it his country; however, he was somewhat hesitant and reserved, and he gave his evidence in a way that did not inspire confidence that he had a depth of knowledge about what he was describing.

Eileen Bray

200    Eileen Bray is the daughter of Dolly Bray, who shared her Aboriginal name with the apical ancestor Kemintul, and Kenny Bray, whose Aboriginal name was Puriyarriny. Her maternal grandmother, Christmas, was the sister of Buttercup Mung. Through her mother, Miss Bray is a descendant of the unnamed father of Paddy Pirtawuny, who was the father of Christmas and Buttercup.

201    Through Buttercup Mung, Miss Bray is related to the Mung and Butters families. She is also connected by marriage to the Wallaby family: her mother was the younger sister of Bessie, the wife of Raymond Wallaby. In her written evidence, Miss Bray refers to Raymond Wallaby as “Dad”.

Mr B.D.

202    As I have noted, the Purnululu applicant now only relies on written evidence from Mr B.D., who was not a member of either of the Purnululu and Purnululu #2 claim groups. Rather, he was a Wanjirra man whose country “is around Munpu and Jipilyuwuny”, which he described as “mainly on the Northern Territory side, east from Ord River Station and Linnekar Yard … near Kirkimbie Station”.

203    Mr B.D. knew David Turner (Mrs D.M.’s father), whom he identified in his written evidence as his “uncle”. His evidence was that the Bungle Bungle area country “belongs to Kija people” and that he had always heard from old people, like his father Duncan, that Bungle Bungle is Kija country. He states that he did not know Paddy Turner (which I infer is a reference to David Turner’s brother, Paddy Jandiyarri Turner).

Jack Britten

204    As I have explained, Jack Britten was the original leading named applicant in the Purnululu #1 claim. His affidavit, affirmed on 17 September 1999, was initially provided for the purposes of the registration test. Dr Redmond also refers to this affidavit in his expert report. There was no objection to his affidavit being read and relied on by the Purnululu applicant in the separate question hearing.

205    Mr Britten identified as a Kija and Jarlarlu man. He was given his surname from a kartiya (European) named Ted Britten, who married his mother. His mother is Liddy Dirrijirl, who is the sister of Buttercup Mung and Christmas, and one of the daughters of Paddy Pirtawuny. The unnamed father of Paddy Pirtawuny is one of the Purnululu apical ancestors.

206    Paul Butters refers to Mr Britten in his written evidence as a leader and says that he “spoke for Jarlulu”. In his affidavit, Mr Britten states that his “country runs from north of Frog Hollow across to the Franklin [Frank River] and down to Blue Hole. From there, it follows the Ord River upstream to near Old Han Spring”. This latter location is recorded as being described by senior counsel for the Purnululu applicant in opening as “Old Hands Spring”. Mr Butters explained that “Hand Spring” is “behind” and to the west of Frog Hollow. On the site map it is shown as “Old Han Spring” and is shown to be on the boundary of Springvale Station, on the Ord River and well west of the Purnululu claim boundary. My understanding is that this area is just within the Yurriyangem Taam determination, although close to the border with Malarngowem Part B determination. Mr Britten’s affidavit states that he got this country from his maternal grandfather, Paddy Pirtawuny, and his maternal uncles (which I infer includes Nganggannil and Dickie Tooltany).

Judy Turner

207    During the course of the trial, the Purnululu applicant sought to tender a video of Judy Turner being interviewed by the anthropologist Nancy Williams. Although the Gajangana Jaru applicant had little notice of the existence of the video, or the reliance on it, ultimately no objection was made to its tender.

208    Judy Turner is the mother of Mrs D.M. She was married to David Turner. In the interview, she said that she was born “La Salt Pan. Salt Pan this way la Purnululu”. Judy Turner claimed the PDA as her home country or primary country. She was unsure of what year she was born but the Purnululu applicant submits that Judy Turner would have been born in about 1927. Judy Turner’s mother was Caroline (Juwurrijirl) and her maternal grandmother is Walambal. The Purnululu applicant contends Walambal would have been born in about 1902. Walambal’s marriage partner was Irragon Mung, a Jarlarlu person. His mother was the Purnululu apical ancestor Mungamungagatsdil.

209    Mrs Turner identified her mother Juwurrijirl’s language as Kija. When asked on the video about the language for Walambal, she replied: “Kija and Jaru sometimes [she] talk back to the people you know. Kija.” She also identified her mother’s father as Mung and said that his language was also Kija.

210    When asked about her husband David Turner’s language, she said on the tape: “Jaru and his mother Kija really”, adding that David Turner’s mother is in the cemetery at Turkey Creek. Mrs Turner then identified her husband’s mother as Topsy Bulugul. The parties agreed that Bulugul was David Turner’s mother. The Gajangana Jaru applicant disputes that Bulugul was Kija, and contends that it is generally agreed that Bulugul identified as Jaru.

The witnesses called by the Gajangana Jaru applicant

211    The Gajangana Jaru applicant relied on written and oral evidence from the following lay witnesses, who are all members of the Gajangana Jaru applicant:

(a)    Bonnie Edwards;

(b)    Lily Banks;

(c)    Vincent Edwards; and

(d)    Tanba Banks (who gave preservation evidence taken on 5 December 2018 in Halls Creek).

212    Douglas Lannigan, a member of the Gajangana Jaru applicant, did not give evidence. He is related to Bonnie Edwards, Lily Banks and Tanba Banks through their mother, Topsy. He is the grandson of Topsy’s sister, Polly Raja. The Gajangana Jaru applicant claims, and both the Purnululu applicant and the State dispute, that Polly Raja was Jalwarta’s daughter.

Bonnie Edwards

213    Bonnie Edwards describes herself as a Gajangana Jaru elder. She is the younger sister of Tanba Banks and Lily Banks. The three women have the same mother, Topsy Dangai Banks, but different fathers. Mrs Edwards’ father, Les Banks, was a white station worker. He married Topsy Dangai Banks in 1954. There is no dispute, as I have noted, that Topsy Dangai Banks was the daughter of Fred Jalwarta.

214    At various points – both during the trial and in submissions – the Purnululu applicant trenchantly attacked Mrs Edwards’ credibility, rather than simply her reliability, which would have been a more neutral submission. It questioned her motivation for bringing the Gajangana Jaru application. In closing written submissions, the Purnululu applicant submitted:

Bonnie’s evidence was at times argumentative and at times it was not responsive to the questions asked. Her own objectives appear to be to dominate what occurs in the Purnululu National Park (or PDA) from an Indigenous point of view; so much is clear from the role that she has assumed over three or four decades of being her family’s chief spokesperson, from the claims that she has made about herself (for example, that she is the main Aboriginal traditional owner of the Bungle Bungle) and from the exclusive nature of the GJ claim. …

At various times, Bonnie Edwards has made statements that are untrue, idiosyncratic, exaggerated, inconsistent with other things that she has said, illogical (and perhaps irrational) or plainly wrong. She has demonstrated a tendency to say whatever she thinks will advance her own interests.

(Footnotes omitted.)

215    The Purnululu applicant provides several examples of what it says demonstrates these tendencies of Mrs Edwards. In particular, the Purnululu applicant highlights Mrs Edwards’ “disavowal of Mayilba as an ancestor who had rights in the PDA and her evidence about the extent of Malngin country” as examples of inconsistencies in her evidence. The Purnululu applicant also submits that Mrs Edwards’ evidence about the extent to which Thomas Yiliyarri was able to show her and other members of her family around the PDA and to impart knowledge to them is not credible. I deal with this submission separately below.

216    The State also took issue with Mrs Edwards’ evidence. It submitted that, in addition to those examples set out by the Purnululu applicant in written closing submissions, the evidence given by Mrs Edwards about the information she contended Thomas Yiliyarri handed down to her at the Nyitparriya painting site was “difficult to accept”.

217    The Gajangana Jaru applicant submits that Mrs Edwards “was a reliable witness who told the truth, despite some inconsistencies”. It contends she gave detailed evidence about dreamtime stories and traditional law and custom, and that much of her knowledge came from senior elders Thomas Yiliyarri and Tanba Banks. In reply submissions, the Gajangana Jaru applicant submitted that the Purnululu applicant’s case “seem to require an extremely close reading of her evidence, with a mind to finding inconsistencies, rather than reading her evidence as a whole and taking into account her demeanour during the hearing”.

218    In response, the Purnululu applicant reiterated that it “does not accept that Bonnie was a witness of truth”. It contended:

Further, it is not necessary for Bonnie’s reliability to be specifically undermined on all issues. As is apparent from its submissions, the Purnululu Applicant says that Bonnie’s credibility and/or reliability have been undermined on numerous important issues with the result that her credibility and/or reliability are in doubt generally. Bonnie’s evidence should not be accepted in relation to controversial matters unless it is corroborated by reliable evidence from other sources.

Findings

219    At this point it is sufficient to make some general findings about Mrs Edwards’ evidence. These general findings inform some of the more specific findings I make on the material factual issues later in these reasons. In explaining my general findings, it is appropriate to give a little more detail about Mrs Edwards’ background.

220    Bonnie Edwards was born on Turner River Station at 8 Mile Yard near the Turner Station homestead around 1952. Thomas Yiliyarri’s daughter, Biddie, was born in the same place about 12 hours prior. Les Banks married Mrs Edwards’ mother Topsy “legally” in 1954, and Mrs Edwards’ evidence was that this is why she was not taken away by the welfare. At [9]-[10] of her statement, Mrs Edwards gives some evidence which in my opinion is relevant to how she sees herself, and how she is viewed by at least some members of the Purnululu claim group:

Even though my blood mother was a full blood I was a half caste and not part of the tribe – said to be white. Full-bloods didn’t accept me. I said I wanted to learn so I could be accepted. He (Les) let me go out on country with my Aboriginal family.

I was walking in the bush then at that outstation now with the old people. I lived in the Bungles until I was 9 years old then I had to go to school.

221    There is some challenge to the precise chronology given by Mrs Edwards, and it would seem that during cross-examination she accepted she may have come out to the park when she was three or four, and then moved all around the park, and the areas outside it, with her parents as her father was building cattle yards.

222    My overall impression from the evidence is that there may be many reasons why members of the Purnululu claim group are so antagonistic towards Mrs Edwards, some of which she may well have brought on herself. However, I do consider it is plausible that one reason for some of the hostility towards her is that her father was a white man, and she has married a white man. Several Purnululu lay witnesses said as much, or are recorded in other evidence as saying as much.

223    The segregation Mrs Edwards has experienced started as a child, as she deposed in her witness statement, in relation to when she went to school with her sister Lily:

Then I went to the white hostel in Halls Creek (for kids with white fathers). My sister Lily went to the Aboriginal hostel.

224    Her early life was affected by the fact her father was a white man. She describes this at [12] and [13]:

The white people shifted to Nicholson Station then in 1965. They took the cattle off Turner River station for the Ord scheme. Most of my family moved to Nicholson too. Mum was there until 1969.

In school holidays from Halls Creek I went to Nicholson then Bungles and Osmand yard in Osmand Range with the Nicholson station mob fishing. Yiliyarri was there and Jock Mosquito, and Mum. Tanba was at Flora with Robert.

225    Like many individuals who gave evidence, Mrs Edwards had her schooling cut short in around 1965:

After I left school at 13 years old, I was working at Nicholson polishing spoons for $8 per month.

226    Her mother Topsy Banks died when Mrs Edwards was about 17, in 1969. As the Purnululu applicant appeared to concede in its submissions, since Mrs Edwards was so young when her mother died, she was not able to gather from her mother as much knowledge about country, or her ancestors, as might otherwise have been the case.

227    I accept the Purnululu applicant’s submissions that there are a number of significant discrepancies between Mrs Edwards’ oral evidence and other evidence. As I understand it, many of the criticisms focus on Mrs Edwards’ oral evidence during the on-country hearing, contending it is not credible or reliable compared to her witness statement, or earlier statements, or other evidence, the unstated premise being that those other sources are more credible and reliable.

228    I accept that may well be the case, in the kinds of instances highlighted by the Purnululu applicant. It was my firm impression that Mrs Edwards was often not in her clearest frame of mind when she was giving her oral evidence. She was tense, and she was often upset. I find it was a highly stressful time for her, given the levels of antagonism towards her, which were obvious during the on-country hearing. In my opinion one way she dealt with this was to exaggerate – defensively, and to give answers without thinking them through very well. In her drive to defend the Gajangana Jaru claim, she was too keen to pounce back on the cross-examiner, and that in my opinion led her at times to make statements which were wrong. Her drive to defend herself and the claim in which she has been the principal moving party also meant that at times the content of her evidence extended to matters that it is unlikely to have been appropriate for her to be discussing. Her evidence at the Nyitparriya painting site is one example.

229    Another example of her exaggeration and defensiveness is some of her evidence about the extent to which Thomas Yiliyarri was able to accompany her to sites around the PDA which, as the Purnululu applicant submitted and as I find below, suggested an unlikely level of agility for an older man who had suffered a serious accident and was significantly disabled.

230    I accept that some of the Purnululu applicant’s criticisms did focus on previous written statements by Mrs Edwards, such as a 1986 letter she sent to the Western Australian government in which she stated:

I am the main Aboriginal traditional owner of Bungle Bungle.

231    It is correct that this particular letter does use that phrase. The letter annexed immediately before (dated just over six months’ earlier) it is differently worded. There, Mrs Edwards states that:

I am an Aboriginal Traditional owner of Bungle Bungle …

232    In relation to that letter, Mrs Edwards gave evidence that they were her words, but her husband Malcom Edwards typed it. While no doubt a statement such as the one criticised by the Purnululu applicant (“I am the main Traditional Owner…”) might be offensive and hurtful to many people (not only those in the Purnululu claim group), it is one line in a letter typed by another person over thirty years ago. I do not attach the weight to it that the Purnululu applicant invites me to. I do not see it as destructive of Mrs Edwards as a witness. It was poorly worded, and is obviously exaggerated.

233    I do not accept I should reject Mrs Edwards’ evidence, in its entirety, or generally as to critical issues, simply because of her approach during the on-country evidence, nor because of her confrontational approach in times before the separate question hearing. In relation to particular material facts, where her evidence was clearly exaggerated, or argumentative (which I accept it sometimes was) or plainly out of kilter with other sources or a number of other witnesses, I have placed little or no weight on it. However, I am also satisfied she gave some evidence which was of real relevance to the separate questions, was reliable, and should be accepted.

234    The Purnululu applicant essentially sought to demonise Mrs Edwards throughout the trial, including in final oral submissions. While I accept there are strong feelings amongst individuals, it was not appropriate for the level of antagonism to come through in final submissions. Further, many of these criticisms were left in a state where the apparent challenge to Mrs Edwards was not in fact one that was made to her while she was giving evidence – is it said she was lying? Deliberately lying? Intending to mislead the Court? That is where many of the criticisms tended to go, but there was no cross-examination of Mrs Edwards to this effect. Generally the cross-examination went no further than suggesting a factual matter was not true, or that Mrs Edwards was mistaken. At some points later in these reasons, I accept Mrs Edwards was mistaken, or that a factual matter she put forward should not be accepted. However, the Purnululu applicant travelled beyond this kind of criticism in its final submissions, and in my opinion its level of criticism should not be accepted, first, because it is not justified, and second, because Mrs Edwards was not confronted with the implications which are now put to the Court. The factual disputes on which the latter consideration becomes material are few in number, but there are some and I address them later in the reasons.

Lily Banks

235    Like Bonnie Edwards, Lily Banks is a granddaughter of Jalwarta through her mother Topsy Dangai Banks. She is also a descendent of the Gajangana Jaru apical ancestor Gagai through her biological father, Jack Johnson, who was Gagai’s son.

236    Lily Banks’ surname was changed to Banks after her mother married Bonnie Edwards’ father, Les Banks. Her evidence was that she called Les “uncle” or “dad”.

237    Of the three key witnesses for the Gajangana Jaru, it is Lily Banks’ evidence which I found the most persuasive and reliable at an overall level.

Findings

238    I accept Lily Banks appears by nature to be a quieter and less outgoing person than her two sisters. The way she gave her evidence reflected this. I accept the Gajangana Jaru submission that while in some cases her evidence was less detailed or differed somewhat to that of her sisters, “that shows that the evidence was her own”.

239    In closing oral submissions, senior counsel for the Gajangana Jaru applicant submitted: