Federal Court of Australia

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

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

This proceeding deals with overlapping native title applications by two groups over land and waters within the Purnululu National Park, in the East Kimberley region of Western Australia. The area is described in the Court’s reasons as the “Purnululu Disputed Area” or “PDA”. One group calls itself the Gajangana Jaru applicant, and the other calls itself the Purnululu applicant. One group primarily identifies as Jaru, and one as Kija, both of which are language identities. The two groups disagree about who are the right people for the PDA. The State agrees there is native title in the PDA and has generally supported the Purnululu applicant’s case.

This dispute has been going on for many years, since at least 1992, and attempts at mediation and negotiation have failed. To resolve this dispute, the parties agreed to what is called a “separate question” process. Questions were framed for the Court to answer. Those questions ask who are the correct apical ancestors for the PDA, and which people now have rights and interests under traditional law and custom in the PDA. The judgment given today answers these questions. This judgment is not a determination of native title, but it is a critical step along the way to a native title determination over the PDA.

The Court has had to assess a lot of evidence from claim group members, as well as historical accounts from elders and senior people who have sadly passed away. The parties also relied on various early written reports and accounts about the PDA and the apical ancestors, dating from about 1935 onwards, together with many other documents the parties wanted the Court to examine. There was also expert evidence from two anthropologists – Dr Corrigan and Dr Redmond. The Court has spent a long time looking at all that evidence, and considering the arguments put by the lawyers on behalf of the Gajangana Jaru applicant, the Purnululu applicant and the State. The Court accepts all the witnesses on both sides did their best to tell the Court what they knew, and what they didn’t know. The Court is grateful to them all, including for their hospitality on country and their willingness to show the Court around the PDA.

The Court must only look at the evidence put before it by the parties. It also has to think about which party has what is called the “burden of proof” or the “onus of proof”. Essentially that means which party must give the Court enough evidence to persuade it to accept what that party says are the correct facts. The Court must then decide which facts are more likely than not to be the correct facts. In a case like this one, the parties have tried to reconstruct what happened a long time ago, about ancestors who lived a long time ago, so the question of which party must persuade the Court can be quite important. That is because sometimes there just is not very much evidence any more, especially since a lot of elders have passed away. Or there are only bits of evidence, which makes the Court’s task a little like trying to put a puzzle together, with a lot of missing pieces. Sometimes the Court is asked to rely on records written down by white people, who were making lists of Aboriginal people for one reason or another, or who were studying them and might have written down which country people belonged to, and which families they belonged to. I have explained in these reasons why I do not generally think those records are very persuasive, and why, where possible, I prefer to rely upon what Aboriginal people themselves say, or what those elders who have passed away are recorded as saying. The Court also listens carefully to what the anthropologists have to say, and what their views are, but the Court does not always agree with them. The Court must then put all this material together and make a decision on the questions the Court has been asked. For some issues, there may not be enough evidence for the Court to be persuaded, and the Court may not be able to agree with one party’s version of the facts.

In this case, there are real tensions between some people in the two groups, and the Court could see the on-country hearing was stressful for many of them. However, everyone tried to be respectful, and the Court appreciated that effort. The evidence shows there have been bad feelings between the two groups since a split between them around 1992. The Court has decided this affected the evidence given by some witnesses. In particular, the Court has found it was this bad feeling which has led some members of the Purnululu claim group to refuse to recognise Bonnie Edwards and Lily Banks as having rights in the PDA.

The Court’s reasons for judgment explain why the Court has answered the separate questions as it has. The Court’s reasons are long, and they cover a large number of factual disputes raised by the parties. This summary cannot set them all out. Instead, it will summarise the main points decided by the Court. The main points are:

(1)    The Court has accepted only part of the Gajangana Jaru applicant’s arguments, and only part of the Purnululu applicant’s arguments. Neither group has been completely successful.

(2)    The Court has accepted that Fred Jalwarta was a person with rights and interests in the PDA under traditional law and custom, and should be an apical ancestor for the PDA. That means the Court has decided Lily Banks and Bonnie Edwards, and their descendants, have rights and interests in the PDA through their grandfather Fred Jalwarta.

(3)    The Court has decided that the Gajangana Jaru applicant has proven that Bonnie Edwards did acquire rights in the PDA through Paddy Jandiyarri Turner, but only in one specific way. That is because the Court has decided traditional law about “growing up” or “rearing up” a child was adapted after white settlement to allow children with a non-Aboriginal father to be incorporated and accepted into a family group with descent-based rights to country through a close male family member, such as the father of a sibling.

(4)    The Court has decided this is how Bonnie Edwards was treated, from the time she was born and through to the time she was an adult, at least right up until the split between the groups in 1992. There is evidence that people such as David Turner accepted her rights in the PDA this way, and the Court has found it is likely Thomas Yiliyarri also did. The Court has decided the 1992 split did not change anything so far as traditional law is concerned, even though some people felt strongly that Bonnie Edwards had not behaved properly.

(5)    The Court has decided that the Gajangana Jaru applicant has not proven that Lily Banks and her family have rights in the PDA through Paddy Jandiyarri Turner. That is because Lily Banks had an Aboriginal father and it was understood and recognised she could take rights to his country in the usual way.

(6)    The Court has decided the evidence shows that before white settlement the ancestors of Jaru, Malngin and Kija people all had country in the PDA. It was not country only for the ancestors of the Jaru people, or only for the ancestors of the Kija people. It was more mixed. Places like Blue Hole were traditionally meeting places between groups. The Court’s decision does not say which people currently can speak for particular areas inside the PDA. The group of native title holders will have to sort this out, in a way which is consistent with the Court’s reasons and findings.

These are the main decisions of the Court on the questions asked. Supporting these decisions are a large number of smaller decisions, which are called “findings”. The parties made a lot of factual arguments about who are the families of some of the apical ancestors, and which country the ancestors had rights in. These smaller decisions are steps along the way to the main decisions I have explained. I will summarise those smaller decisions here:

    That Fred Jalwarta and Nelson were likely to have been brothers;

    That Polly Raja was likely to have been a daughter of Fred Jalwarta;

    That Minnie Lidia has not been shown to be a daughter of Fred Jalwarta;

    That a man called Durrukman was the father of Bulugul, Flora Mayilba, Gagai and Wulmarriya, who were all sisters or half-sisters. There is not enough evidence for the Court to decide if Durrukman was also the father of Bungul;

    That the ancestors Bulugul, Flora Mayilba and Wulmarriya all had rights in the PDA;

    That the ancestors Durrukman and Jimmy Turrukpany were two different people but it has not been shown they were brothers;

    That the ancestors Kemintul and Jimmy Turrukpany were marriage partners, and their children included Liddy/Edie Jalpart/Jarrabadjirl and Mountain;

    The Court is persuaded that some apical ancestors the Purnululu applicant says have country in the PDA did not have rights for the PDA, although they had rights for country in other parts of the Purnululu claim area outside the PDA. These were the apical ancestors for Jarlarlu country, which the evidence shows ends at Blue Hole, and does not come into the PDA. Those ancestors are:

  unnamed father of Paddy Pirtawuny, Dickie Tooltany and Ngangamil; and

  Mulkparriya;

    The Court has also decided the evidence shows the country for the ancestor Davy Mardangin is outside the PDA, in other parts of the Purnululu claim area;

    The Court is persuaded the apical ancestors Kemintul, Jimmy Turrukpany, Girnyan, and Mungamungagatsdil all had rights in the PDA; and

    The Court is persuaded there should be two further apical ancestors for the PDA identified as:

   unnamed mother of Ruby Ngadayi and Jenny; and

   Walambal, the grandmother of Judy Turner.

The Court has noted in its reasons that there are several critical issues which still need to be sorted out before any determination of native title can be made. One issue is who are the correct descendants for the ancestors Jimmy Turrukpany and Durrukman. Another is whether there are any descendants from the Malngin people, since the parties agreed Malngin people had rights in the northern part of the PDA. The Court has decided the northern part of the PDA has not been proven to be the country of any of the parties’ apical ancestors, but this might be a matter which can be negotiated or agreed. A third important issue is how the current claims might need to be amended so that there is a native title determination over the PDA which implements the Court’s findings.

The last two paragraphs of the Court’s reasons for judgment should appear in this summary:

In this separate question proceeding, the Court has been required to make findings about people’s families, about their family relationships and histories, and about matters central to their lived experience and their sense of who they are: that is, their connection to country. Some might see this as the negative side of the native title system. It is certainly an invidious task for a Court.

Due to the passage of more than 25 years since the Native Title Act’s processes were first engaged about the PDA, parties and their legal representatives have had to prepare their cases without the presence of many senior people who had the most complete and direct knowledge of these matters. The evidentiary record is therefore less complete than it should have been. There can be nothing but regret it has taken this long. Despite the difficulties, the claimants, their witnesses and their legal representatives, the officers of the State and its legal representatives, and the KLC, have invested a tremendous amount of effort, resources and dedication into this separate question proceeding. The Court is grateful for all the assistance it has received.

The Court is ready and willing to continue to assist the parties in whatever way it can to bring the native title claims over the PDA to a final conclusion as soon as practicable.

MORTIMER J

22 OCTOBER 2020