FEDERAL COURT OF AUSTRALIA

Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728

ORDERS

THE COURT ORDERS THAT:

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

But for any question of extinguishment of native title, are native title rights and interests (as defined in s 223 of the Native Title Act) held in the Overlap Area by:

(a)    members of the Yinhawangka Gobawarrah native title claim group under traditional laws and customs; and if so

(i)    by whom?;

Answer: Yes, but native title is held by members of the Yinhawangka Gobawarrah native title claim group as Yinhawangka people, under Yinhawangka traditional law and custom, and therefore other Yinhawangka people may also be native title holders in the part of the Overlap Area set out in (a)(ii) below.

(ii)    which part or parts of the Overlap Area?; and

Answer: In those parts north of the Ashburton River, and more likely than not in some sites or areas south of the Ashburton River but close to that river, but the Court makes no findings yet about which sites. Nor does the Court make findings yet about who holds native title in the Ashburton River itself, or the site Jabaguru (Jurruru site 12; Yinhawangka Gobawarrah site 29).

(iii)    what are those rights and interests?; and/or

Answer: They are the rights and interests set out in the Yinhawangka Part A and B determination: Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801.

(b)    members of the Jurruru native title claim groups under traditional laws and customs; and if so:

(i)    by whom?;

Answer: Yes, by those people falling within the description of the native title holders in the Jurruru Part A determination: Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939.

(ii)    which part or parts of the Overlap Area?; and

Answer: In those parts south of the Ashburton River, aside from any sites or areas south of the Ashburton River but close to that river which are, in accordance with the Court’s reasons held by the Yinhawangka people, although, the Court makes no findings yet about which sites. Nor does the Court make findings yet about who holds native title in the Ashburton River itself, or the site Jabaguru (Jurruru site 12; Yinhawangka Gobawarrah site 29).

(iii)    what are those rights and interests?

Answer: They are the rights and interests set out in the Jurruru Part A determination: Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939.

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    Today the Court has given answers to separate questions formulated by Barker J in February 2018. This is the culmination of a long and heavily contested dispute between two groups of people who have different language identities, but essentially observe a similar system of traditional law and custom and who, in fact, have been bound together by marriage and other close family relationships. At issue is a more-or-less triangular area of 3423 sq km in the Pilbara, sitting between land and waters held by the Jurruru People (to the west), the Yinhawangka People (to the east), and the Nharnuwangga People (to the south), through the middle of which runs the Ashburton River. The Jurruru People claim it is their country under traditional law and custom. On the other side of the dispute is a group of Yinhawangka people, who call themselves the Yinhawangka Gobawarrah, who have long asserted they hold a particular, distinct set of rights over this area to the broader Yinhawangka group.

2    The separate questions are:

But for any question of extinguishment of native title, are native title rights and interests (as defined in s 223 of the Native Title Act) held in the Overlap Area by:

(a)    members of the Yinhawangka Gobawarrah native title claim group under traditional laws and customs; and if so

(i)    by whom?;

(ii)    which part or parts of the Overlap Area?; and

(iii)    what are those rights and interests?; and/or

(b)    members of the Jurruru native title claim groups under traditional laws and customs; and if so:

(i)    by whom?;

(ii)    which part or parts of the Overlap Area?; and

(iii)    what are those rights and interests?

Summary

3    I have found that the Jurruru applicant has proven its case in relation to the area south of the Ashburton River, subject to the findings I summarise in the next two paragraphs. I have found the Yinhawangka Gobawarrah applicant has proven that the area north of the Ashburton River is Yinhawangka country and not Jurruru country. That finding is also subject to the findings I summarise in the next two paragraphs.

4    The Court has not accepted the Yinhawangka Gobawarrah applicant’s argument that the claim group as defined in the Yinhawangka Gobawarrah application is a native title holding group. It has accepted the contentions of the State and the Jurruru applicant that the group is not a “traditional” one; it is not a community which observes and adheres to a distinct system of traditional law and custom from other Yinhawangka People. Nor has it been proven that there is anything in traditional Yinhawangka law and custom which provides for the separate and distinct holding of native title by a sub-set or sub-group of Yinhawangka People who are descended from certain apical ancestors. Rather, the evidence establishes that Yinhawangka traditional law and custom allows for intramural allocation of responsibilities and interests in particular areas of country, based on a number of factors, including descent from certain ancestors, but also other matters such as birth and death on country. The Court has also found that Mabel Tommy, the person whose knowledge, accounts and narratives are the principal source of the arguments made on behalf of the Yinhawangka Gobawarrah applicant, identified clearly as a Yinhawangka person, and spoke of and described traditional law and custom about rights in land, and about what connected her to the land of her ancestors, which arose under the normative system of the Yinhawangka People. The same finding is made about Jambu Giggles and Muyit Smith.

5    The Court has accepted the Jurruru arguments about succession in relation to the southern part of the overlap area, and has found that the only Jurruru apical ancestor with descendants who identify as Jurruru, Kantitharra, is likely to have had some pre-sovereignty rights and interests in a small part of the western part of the overlap area, but not in the south, so that he and his descendants have succeeded to the land of other Jurruru people who did not, after sovereignty, survive as estate groups who could continue to maintain a connection to their country.

6    The Yinhawangka Gobawarrah applicant has succeeded in proving that two of their four nominated apical ancestors, Thurantajinha and Nijawarla, had rights and interests in the areas north of the Ashburton River in the overlap area. In addition, the Yinhawangka Gobawarrah applicant has succeeded in proving – principally but not exclusively through the accounts of Mabel Tommy, Jambu Giggles and Muyit Smith – that it is more likely than not that all of the area north of the Ashburton River was, at sovereignty, Yinhawangka country. Although it was a difficult issue to resolve, the Court accepted this contention over the evidence of Toby Smirke, being the principal witness for the Jurruru applicant. In relation to the northern area, it found there was insufficient evidence of connection through traditional law and custom for the Jurruru case to be proven; rather there was evidence of familiarity and presence by Toby Smirke and his family when they were working, which led to an intimate and deep knowledge of the country, but did not demonstrate that Jurruru traditional law and custom connected the Smirke family with this area; nor connected any other Jurruru people whose families have not survived.

7    The Court has found that the Ashburton River does not represent a hard boundary between the two native title holding groups, but does provide a geographical indicator of where one group’s country moves into the country of another group. It has found that the area of the river itself, and sites such as Jabaguru, are most likely to have been shared country. It is more likely than not that there are some sites south of the river, but close to it, which are held under Yinhawangka traditional law and custom.

8    The Court has no made specific findings about what these sites are, nor about how a boundary is to be identified for the purposes of making two determinations of native title in the overlap area, which is what the Court has found should occur. The Court expects the parties to negotiate and reach agreement on how this boundary is to be drawn. Failing such agreement after a reasonable period of time, there will need to be a further trial with further evidence and the Court will need to determine and draw the boundary for the parties. That is an outcome which should be avoided if at all practicable.

9    The parties did not spend a lot of time in evidence or submissions on the content of the native title rights and interests. On the basis of the evidence as it stands, and giving primary weight to the fact that there are existing determinations for the Jurruru People and for the Yinhawangka People, the Court finds that the content of the rights should be determined to be the same as the rights set out in the respective determinations. Whether these rights should be determined to be exclusive or non-exclusive was not a matter addressed in any detail by the evidence and submissions. Like the other outstanding matters, the Court expects the parties should be able to negotiate an outcome on this issue.

10    This dispute has existed now for decades, and sadly as in many other longstanding native title disputes, the generation of people with the closest, most direct and fulsome knowledge of facts most material to resolving the dispute are no longer alive, or are no longer well enough, to assist the Court. In this case, preservation evidence played a critical role, but some of the most important evidence was not fully tested. The records made in 1999 with the assistance of Mr Phillip Haydock have also been critical; yet the elders who spoke to Mr Haydock were no longer available to give evidence and so, again, their evidence could not be tested. These forensic difficulties do not absolve the Court from making findings, but they do make the task more difficult.

11    The parties, their experts and lay witnesses, and their legal representatives, also faced a difficult task. Although the Court makes findings accepting some evidence, and argument, and rejecting others, I accept that all concerned have done their best to assist the Court, for which the Court is grateful.

12    The Court also expresses its gratitude to Transcripts Australia for the care taken in the exercise of preparing the transcript of the on-country evidence, the expert evidence, and the parties’ closing submissions.

13    In Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [13] I said:

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    Those observations are equally apposite in this proceeding.

A note 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. 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. Where a person had both an Aboriginal and non-Aboriginal name, I have used the names as they appeared most frequently in the submissions and the evidence, particularly in those parties’ submissions which relied on that witness’ evidence. For example, the original members of the applicant in the Gobawarrah Minduarra Yinhawangka claim (WAD6173/98), and important persons to this proceeding, were Mabel Patterson (formerly Mabel Tommy) (Jirridinku), Limpet Giggles (Jambu), and Amy Smith (Muyit). I use the names Mabel Tommy, Jambu Giggles and Muyit Smith as this is how the parties, particularly the Yinhawangka Gobawarrah applicant, most often referred to them. With the apical ancestors, I have adopted a single name as they have customarily been identified. Further, one of the Yinhawangka Gobawarrah named applicants sadly passed away after judgment was reserved in this proceeding, and at the request of the Yinhawanga Gobawarrah applicant, I have referred to him as Mr E.G. in these reasons.

16    In terms of the spelling of other native title applications in the region, I have taken the spellings from the map that was provided to the Court and tendered by the parties. The spellings of the names in some of the applications varied from time to time and I have attempted to use the spellings as they appeared on the maps in whichever iteration of the claim history I am discussing.

17    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 Dr Pamela McGrath’s PhD was conferred after her 2001 field trip with members of the Jurruru claim group).

BACKGROUND

The history of native title applications over the overlap area, and the surrounding areas

18    In this section of my reasons I explain the three current native title applications in the overlap area, the applications which preceded them, and the native title determinations in the areas surrounding the overlap area. This context is important in understanding how the respective claims take the form they now do.

19    Two of the applications in the overlap area have been lodged by the Jurruru claim group, being:

(a)    the Jurruru #1 application (WAD537/2018, formerly WAD6007/2000), which was filed on 24 July 2000; and

(b)    the Jurruru #2 application (WAD538/2018, formerly WAD327/2012), which was filed on 22 November 2012 and seeks a native title determination over an area to the east of the Jurruru #1 application area, including a site called Jabaguru, which featured prominently in the evidence.

20    I refer to these as the “Jurruru claims” in these reasons.

21    The third application in the overlap area has been lodged by the Yinhawangka Gobawarrah claim group. The application was filed on 17 October 2016 (WAD490/2016). I refer to it as the “Yinhawangka Gobawarrah claim” in these reasons.

22    The following map depicts the boundaries of the Jurruru claims and the Yinhawangka Gobawarrah claim, and the overlap between those claims. Aside from a relatively small portion of land in the very north of the Yinhawangka Gobawarrah claim area, the overlap between the Yinhawangka Gobawarrah claim and the two Jurruru claims is complete. I shall refer to this area as the “overlap area” in these reasons. As I understand the parties’ cases, the claim of the Yinhawangka Gobawarrah People to the very small section in the north of the Yinhawangka Gobawarrah claim area stands or falls with the outcome of the separate question hearing. No separate evidence was advanced about this area. The map also depicts the native title determinations in the areas surrounding the Jurruru and Yinhawangka Gobawarrah claims.

23    The map shows that the following native title determinations lie adjacent to the overlap area:

(a)    the Jurruru People Part A determination, which lies to the west of the overlap area, being that part of the Jurruru #1 claim which was determined by consent in Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939. The remaining “Part B” of the Jurruru #1 claim falls within the overlap area in this proceeding;

(b)    the Yinhawangka People Part A and B determination, which lies to the north and east of the overlap area, being an area which was determined by consent in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801;

(c)    the Nharnuwangga determination, which lies to the south-east of the overlap area and was determined by consent to be country over which the Nharnuwangga, Wajarri and Ngarlawangga peoples are the native title holders: Smith on behalf of the Nharnuwangga, Wajarri and Ngarla People v State of Western Australia [2000] FCA 1249; 104 FCR 494; and

(d)    the Puutu Kunti Kurrama People and Pinikura People #1 and #2 determination, which lies to the north-west of the top corner of the overlap area and was determined by consent in Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2 [2015] FCA 940.

24    The historical native title claims related to the overlap area are described in the parties’ further amended statement of agreed facts and written submissions, and are largely uncontested.

25    The first relevant application was a combined native title application lodged with the National Native Title Tribunal on 4 June 1996 on behalf of the Innawonga, Banjima and Nyiyaparli peoples. I refer to it as the “IBN claim” in these reasons. The land and waters forming the subject-matter of the IBN claim ran from Cheela Plains station in the west, through Rocklea station, parts of Turee Creek station and across to Juna Downs station in the east, taking in part of the Hamersley Range. Broadly, it did not come south into Mininer station, nor into the overlap area. However, it included, and extended further east of, the area which would become the subject of the subsequent Yinhawangka Part A claim (which I describe at [37] below).

26    On 25 June 1997, the Gobawarrah Minduarra Yinhawangka application (WAD6173/98) was lodged with the NNTT. I refer to it in these reasons as the “GMY claim”. The individuals who constituted the applicant in the GMY claim are the family members of the present claimants in the Yinhawangka Gobawarrah claim. Their accounts of their traditional country are central to the Yinhawangka Gobawarrah claim.

27    The original GMY applicant comprised Jambu Giggles, Mabel Tommy and Muyit Smith. The GMY claim group consisted of descendants of two married Yinhawangka ancestors, Thurantajinha and Wilga. Thurantajinha and Wilga constitute one of the apical ancestor groups in the Yinhawangka Gobawarrah claim.

28    The initial GMY Form 1 was prepared without legal assistance and included an approximation of the claim boundaries. The GMY claim area map was finalised in December 1997. Amended versions of the Form 1 were filed in 1997 and 1999, but the members of the applicant remained the same.

29    The GMY applicant subsequently obtained legal representation from the Pilbara Aboriginal Land Council, and later from the Yamatji Marlpa Barna Barba Maaja Aboriginal Corporation (which became the Yamatji Marlpa Aboriginal Corporation).

30    The GMY claim sat to the south of the IBN claim, taking in all of the overlap area, which included part of Ashburton Downs station, then running east over Mininer station, to the boundary with the (then) Ngarlawangga People’s claim to the east, and bordering the Nganawongka, Wadjari and Ngarla claim to the south.

31    The Innawonga application (WAD6285/1998) was lodged with the NNTT on 29 September 1998, and an amended Form 1 was filed on 16 June 1999. I refer to it in these reasons as the “Innawonga claim”. The applicant comprised Chubby Jones, Nicholas Cooke (the father of Brendon Cook, one of the Yinhawangka witnesses for the Jurruru applicant in this proceeding), Doris Limerick (the mother of Marlon Cooke, another of the Yinhawangka witnesses for the Jurruru applicants in this proceeding), Tadjee Limerick, Stuart Injie and Lola Young.

32    The individuals comprising the claim group in the Innawonga claim were descended from the Yinhawangka ancestors Minatangunha and/or Jardunha, being different ancestors to the apical ancestors referred to in the GMY claim.

33    The Innawonga claim covered land and waters entirely within the GMY claim, and was to the south of the IBN claim, largely over Mininer station, part of Ashburton Downs station and part of Turee Creek station. The Innawonga claim also covered part of the overlap area in this proceeding.

34    To recap, the Jurruru #1 application was filed in July 2000, and in its eastern part overlapped with the GMY claim, and in its north-eastern part overlapped with the Innawonga claim.

35    On 13 March 2001, an agreement was reached between the Innawonga and the Jurruru #1 applicants to amend the boundaries of both claims so as to remove the overlap between them. Those making the agreement for the Innawonga applicant were people who would later form part of the Yinhawangka claim group. As a result of this amendment, the Innawonga claim no longer covered any part of the overlap area. The 2001 boundary agreement is of some considerable relevance in these proceedings, and I deal with the evidence about it in more detail later in these reasons.

36    In 2010, the applicants in the GMY and Innawonga claims entered into an intra-Indigenous agreement for the purpose of combining the claims. This agreement was in evidence. The new combined claim did not include the overlap area, but it was this agreement which was implemented in the new Yinhawangka Part B application filed in 2010. By this time, the Banjima People also had their own separate native title application to the north-east of the overlap area, much of it covering Juna Downs station. In that sense, the IBN claimants had split into the Banjima People’s application, and the Yinhawangka People’s applications.

37    After the 2010 agreement, two Yinhawangka applications were filed:

(a)    the Yinhawangka Part B application (WAD216/2010), filed on 12 August 2010, which covered the area of the overlap between the Innawonga and GMY claims, and an eastern portion of the GMY claim which did not overlap with the Innawonga claim (I refer to it in these reasons as the “Yinhawangka Part B claim”); and

(b)    the Yinhawangka Part A application (WAD340/2010), filed on 11 November 2010, which covered an area to the north of the Yinhawangka Part B claim which was previously within the boundaries of the IBN claim (I refer to it in these reasons as the “Yinhawangka Part A claim”).

38    The GMY claim was then amended on 12 August 2010, pursuant to the agreement reached, to withdraw the claim over an area which was the subject of the Yinhawangka Part B claim. This meant the GMY claim then covered only the area which is now the overlap area in this proceeding. In September 2010, the Innawonga claim was combined with the Yinhawangka Part B claim, and the latter claim became the lead application.

39    The GMY claim was struck out on 30 June 2016, for reasons described at [29] of the parties’ amended agreed statement of facts:

On 30 June 2016 the GMY claim was struck out on the grounds that the claim was not authorised under s 84C of the [Native Title Act] and the GMY applicant had not complied with the orders in relation to the bringing of an application to amend the claim.

40    The Yinhawangka Gobawarrah claim was filed less than four months later, in October 2016. As I note above, it followed the boundary of the former GMY claim, and was brought on behalf of substantively the same claim group members.

41    The Yinhawangka Part A and Part B claims were determined in Jones. The Yinhawangka Part A and B determination referred to three groups of apical ancestors, who were not related to each other. The three groups of apical ancestors were:

(a)    Jardunha;

(b)    Minatangunha; and

(c)    Thurantajinha and Wilga.

42    Thurantajinha and Wilga are two of the apical ancestors in the Yinhawangka Gobawarrah claim, as they were on the GMY claim. There is no dispute that most if not all members of the Yinhawangka Gobawarrah claim group (and certainly those who were the key witnesses) are also members of the Yinhawangka native title holding group, and indeed Roy Tommy has been an active member of the Yinhawangka prescribed body corporate.

43    It is also common ground that the Yinhawangka families who are descended from the ancestors Minatangunha and Jardunha, the other two apical ancestor groups in the Yinhawangka Part A and B determination, do not claim rights in the overlap area and are not involved in the Yinhawangka Gobawarrah claim.

THE PARTIES’ CONTENTIONS IN SUMMARY

44    In the parties’ statement of facts and issues it was an agreed matter that significant European presence or settlement in the overlap area did not occur until approximately 1870 to 1880, despite the agreed date for British sovereignty in Western Australia being 1829. There were also statements to the effect that it was agreed there is a “Yinhawangka society” and a “Jurruru society”, each of which has existed since prior to 1829 and has continued to acknowledge and observe their respective traditional laws and customs.

45    In closing submissions, counsel framed this issue slightly differently. Both accepted that there was essentially one system of traditional law and custom across the Pilbara, and aspects such as men’s law were shared across groups. The following facts were agreed in the proceeding:

There are different kinds of Law, including Yindjibarndi (Bidara) Law, Desert Law, Banjima Law and Yinhawangka Law. Some Yinhawangka people go through one kind of Law, some go through another kind. But it’s all part of the same big Men’s Law for the country. The Lawmen mix and help each other in the meetings.

Law is shared in the Pilbara but some of the practices are different from place to place.

46    It was also accepted (including by the State) that there was one landholding system applied across the Pilbara region, said to be a system “characterised by descent and affiliation with a particular corporate entity (a local descent group) in relation to a particular tract of country within the broader group territory”: see AB on behalf of the Ngarla People v State of Western Australia (No 4) [2012] FCA 1268; 300 ALR 193 at [141].

47    Notwithstanding this, only the Yinhawangka Gobawarrah applicant rely upon a descent-based pathway of acquiring rights and interests in the overlap area. The Jurruru applicant relied on a “succession” concept for the overlap area, which had a descent aspect, and which I deal with in detail later in these reasons. This, the Jurruru applicant contends, is the same basis as native title was recognised in Smirke. For present purposes, the point is that, despite the way the agreed issues were expressed, as I understand it each of the Jurruru and the Yinhawangka Gobawarrah applicants rely on the same normative system, although they have separate, and distinct, native title determinations in their favour, the explanation for this appearing to be that the normative system recognises (through a post-sovereignty adaptation) native title being held at a language identity level. What they appear to contend is that there are two competing arguments about how this system applies to rights and interests in the overlap area, and to the maintenance of connection to the land and waters in the overlap area.

48    The Jurruru applicant’s primary case is that, at sovereignty, the overlap area contained “estate groups” associated with the Jurruru language. These estate groups all observed the same system of traditional law and custom. It contends that, post-sovereignty, these estate groups disappeared through “forced demographic change” and through traditional, albeit adapted, “processes of succession”, native title rights and interests are now held over the entirety of the overlap area by a “single communal language group”, being the Jurruru People. This, it contends, was also the case for the area now covered by the Jurruru Part A determination. In oral closing submissions, this was referred to by the State and adopted by the Jurruru applicant as the “devolution” from individual estate groups to the communal language group.

49    In closing submissions, and I infer reflecting at least one impression from the evidence as adduced, the Jurruru applicant accepted it was possible that, at sovereignty, there may have been estate groups in the overlap area north of the Ashburton River who identified as a “mix of both” Jurruru and Yinhawangka. The Jurruru applicant submitted that despite this feature the overlap area in its entirety has come to be regarded as Jurruru country through these processes of “succession”. This appears to reflect the Jurruru applicant’s “alternative” submission put at [22] of the joint statement of facts and issues filed before the hearing, to the effect that if (contrary to the Jurruru primary case) the overlap area (or part of it) belonged to members of both Yinhawangka and Jurruru societies at sovereignty (ie it was shared country) and some Yinhawangka people have maintained a connection to it, then any such Yinhawangka people have only “non-exclusive rights which may be exercised for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes)”. In other words, the Jurruru applicant did not concede that any possessory or ownership rights could be held by Yinhawangka people in the overlap area.

50    The Jurruru applicant made three principal submissions in relation to the Yinhawangka Gobawarrah claim:

(a)    the Yinhawangka Gobawarrah applicant has failed to prove that the four apical ancestors held inheritable rights and interests in estates that encompassed the whole of the overlap area;

(b)    the Yinhawangka Gobawarrah are not a “traditional group” capable of holding a separate native title to the overlap area under the traditional laws and customs of the Yinhawangka society, because Yinhawangka society only recognises a single communal native title over all of Yinhawangka country; and

(c)    the Yinhawangka Gobawarrah claim group do not have a connection to the overlap area under Yinhawangka traditional laws and customs because Yinhawangka society does not recognise their rights and interests in that area.

51    The Yinhawangka Gobawarrah applicant submits that the Yinhawangka Gobawarrah claim group hold native title in the whole of the overlap area under Yinhawangka traditional laws and customs (that is, by descent from apical ancestors who held rights in that area at effective sovereignty), but as a separate sub-group of Yinhawangka society. The Yinhawangka Gobawarrah applicant submits the content of those rights and interests are the same as in the adjoining Yinhawangka consent determination of Jones. It contends that such an approach – a subset of a larger native title holding group being recognised as holding native title in a separate area of land and waters – is what occurred in De Rose v South Australia (No 2) [2005] FCAFC 110; 145 FCR 290, and native title can be determined in the same way in relation to the overlap area.

52    The Yinhawangka Gobawarrah applicant submits that, at sovereignty, the overlap area fell within the respective estate areas of four Yinhawangka Gobawarrah apical ancestors, being Nijawarla, Gujarda, Thurantajinha and Wilga. There is a dispute between the parties whether Gujarda is a daughter of Thurantajinha or an apical ancestor in her own right. The Yinhawangka Gobawarrah applicant acknowledges that “the Yinhawangka local estate groups have substantially changed since sovereignty”, but submits that the Yinhawangka Gobawarrah claim group have inherited those estates as descendants of these ancestors and have continued to observe traditional Yinhawangka laws and customs across the overlap area.

53    In the alternative, the Yinhawangka Gobawarrah applicant submitted that whole of the overlap area is shared country between the Yinhawangka People and the Jurruru People. The Jurruru applicant did not agree with this contention, going only as far as the acceptance I have recorded at [49] above.

54    The State generally supported the position of the Jurruru applicant. It accepted the existence of native title in the overlap area and contended that there are greater difficulties with the Yinhawangka Gobawarrah applicant’s case.

55    The State submitted that, on the evidence, it seems “tolerably clear” that the estate groups located north of the Ashburton River in the overlap area contained both Jurruru and Yinhawangka people at sovereignty. However, the State says that the Yinhawangka Gobawarrah applicant’s account of what occurred post-sovereignty is an “anomaly” within the Pilbara region, while the Jurruru applicant’s account is “familiar and orthodox” and consistent with other native title determinations in the wider Pilbara region, including the adjacent Yinhawangka and Jurruru consent determinations.

56    The State further submitted that the Yinhawangka Gobawarrah applicant did not establish that the Yinhawangka Gobawarrah are a group capable of holding native title rights and interests under the traditional laws and customs of the Yinhawangka society, separately to the Yinhawangka People.

57    In the following sections, I describe some of the older people from whom preservation evidence had been taken in the past, as well as describing some of the other key older people relevant to determining the separate questions. I also describe the respective claim groups and the lay witnesses who gave oral evidence (not including preservation evidence, to which I refer separately). Much of the factual material in this section is taken from the agreed facts.

Jurruru applicant preservation evidence

58    The Jurruru applicant relied on witness statements from Toby Smirke dated 27 May 2013, Peggy Smirke dated 5 June 2013 and David Smirke dated 28 May 2013, all filed in the Jurruru proceedings. These witnesses gave evidence at the preservation of evidence hearing before Barker J on 23 July 2013. The Jurruru applicant relied on the transcripts and the Court’s video recording of the preservation evidence hearing.

Toby Smirke

59    Toby Smirke was born in 1944 on Jurruru country. He is a senior elder of the Jurruru People and is recognised under traditional Jurruru laws as being responsible for, and speaking for, Jurruru country. He has spent most of his life living or working in Jurruru country.

60    Mr Smirke’s bush name is “Gidja”, which is a Guruma word and was given to him by his mother. His skin is Milanga. His biological father was a white man, but he was reared up by his Aboriginal father, Jimmy Smirke, whom he treated as his “real” father. Jimmy Smirke treated Toby Smirke as a son and they were treated by all Jurruru people in that way, as other evidence reveals. He has two brothers (David Smirke and one who has passed away) and five sisters (Peggy Smirke, Linda Smirke, Lorraine Smirke and two who have passed away). He has four children from his first marriage, to Nancy Tommy: Ivan Smirke, Alloway Smirke, Nathaniel Smirke and Kieran Smirke.

61    When Mr Smirke was young, his parents worked on Ashburton Downs station. He would travel to Kooline station for important law business meetings. In holidays he would travel around Jurruru country. He did not go to school, although his (white) biological father wanted him to, because his mother was afraid he would be taken away to Perth. When he was older, Mr Smirke first worked on Ashburton Downs station, Mt Vernon station and Wyloo station, mostly mustering and building and fixing buildings and equipment. He started work when he was about 12 years old.

62    In relation to his marriage to Nancy Tommy, Mr Smirke’s evidence was:

I know all the skin rules about traditional marriage. I learnt all those rules from the old people like old Kaoline Mick and my father and mother. They told me, ‘You don’t go with that wrong way woman’. That ‘right way’ stuff does not happen much anymore – it does not really fit with modern ways. But most people still know those rules and talk about them. And we pass that knowledge on to our children and grandchildren.

…

When we got married it was traditional Aboriginal way for Jurruru and Innawonga. This means that Nancy’s family and my family got together. People talked to us about how we were ‘straight’ for each other and not ‘wrong way’, and how that was a good thing.

63    In relation to his Jurruru language and identity, his evidence was:

The Jurruru language is the language of the Jurruru people and the Jurruru country. We usually use ‘word’ instead of ‘language’. It means the same thing but ‘word’ is Aboriginal English. I can understand Jurruru word but I can’t speak it very well. ...

Speaking language is very important to me, it is part of who I am. I wish I had learnt to speak Jurruru word.

64    Mr Smirke gave evidence that, when he was young, he “knew the proper old people who told [him] a lot about country”. His father and Kooline Mick, a Yinhawangka man who learned about Jurruru country from the old Jurruru people, taught him where Jurruru country ended and where other people’s country started. He learned about Jurruru culture, law and history from the old people who were living on Ashburton Downs station when he was growing up, even if they were not themselves Jurruru, because “they all knew about other groups’ law as well as their own”.

Peggy Smirke

65    As I have noted, Peggy Smirke is Toby Smirke’s sister. She does not know her date of birth but estimated in 2013 that she was around 60 years old. She was born on Jurruru country. Her father was Jimmy Smirke.

66    Mrs Smirke’s written evidence about her childhood was (at [20]-[23]):

My parents were real ‘bush people’. They lived in the bush most of their lives. They did not like town life. They spent most of their lives working on Jurruru country, on Ashburton Downs Station and Kooline Station.

I remember when my father worked on Ashburton Downs Station as a dogger and station worker. We were always travelling around with him, we did not live at the station much. Instead, we stayed out in the bush and camped and ate a lot of bush food. We would often eat emu or kangaroo.

When we were at the station we stayed at the black fella’s camp down by the Ashburton River. There were many old people living with us there. I remember Junki Smith (a Ngarla law man), and Mabel Tommy (Julie Walker’s mum – I can’t remember which group she belonged to), and Buddy Smith (another Ngarla law man and brother to Junki). (‘Ngarla’ is the name I use for the Ngarlawangga who are Jurruu’s neighbours. All Jurruru people call them this.)

Then welfare came and took us. I don’t know how old I was but I think I was only just a teenager. We were taken away because they said that we had been living in the bush too long. The welfare people said that we had to go to school.

67    Mrs Smirke left school when she was around 15 years old and went to work on Kooline station. Later she was “moved off the stations when equal pay came in”.

68    Mrs Smirke has three children: Richard Cox, Sherlene Cox and Stella Cox. They follow their father as Yinhawangka, which is “the old way”, but Mrs Smirke’s evidence is that they could follow her as Jurruru if they wanted to.

69    Growing up, she was raised by her parents and other old people, who told her about Jurruru country and being Jurruru. Mostly she learnt from her parents as she went with them all over the stations in Jurruru country. Her evidence was that she does not know as much about Jurruru country as her brothers, because she was taken away when she was young.

David Smirke

70    David Smirke was born in about 1955 at Ashburton Downs station. He passed away in 2016. His Aboriginal name was Aduwayi. He was a senior Jurruru law man. His skin was Milanga.

71    As I have noted, David Smirke was Toby Smirke’s brother and Jimmy Smirke’s son. He had two children, Anthony Smirke and Kelman Smirke, who were born on Midaroo station, which is not Jurruru country. Mr Smirke’s evidence was that his children are Jurruru, “because they are in [his] line”, although their mother was Banjima and “they can follow their mother’s side too”.

72    Like Toby Smirke, David Smirke grew up with his parents on Ashburton Downs station, travelling around when his parents were not working. His evidence was that, growing up, “[t]here weren’t just Jurruru people, it was like a jigsaw puzzle – different people around in that time – at Ashburton Downs Station and Kooline Station too”.

73    David Smirke did not go to school. His evidence was that his parents “hid [him] away in the bush” so that he would not be taken by the welfare. When he was around 10 or 11 years old, he got really sick and spent six months in hospital in Perth. After that, he spent time in Roebourne.

74    As an adult, he worked on Ashburton Downs station and later Kooline station. His father and other older people taught him about country and law. His evidence was:

I learnt about country mostly from my father – he would tell me the stories about country and show me places like the dalus, while we were travelling around.

Old Kooline Mick, he was an Innawonga man. He could talk Jurruru and he knew a lot about Jurruru country, so he told me a lot as well. He was also a relation to my father – some sort of uncle I think. I don’t know how he came to know so much about Jurruru country and law and culture, but he must have been around Jurruru country a long time to know so much. He was a very strict law man. He would take me around and tell me about Jurruru country.

There were some other old people at Ashburton Downs Station when I was very young who also told me a lot about country, but I can't remember their names now.

Yinhawangka and GMY preservation evidence

75    The Jurruru applicant and the Yinhawangka Gobawarrah applicant relied on preservation evidence from both the Yinhawangka Part A and Part B applications and the GMY application.

76    David Cox gave evidence on behalf of the Jurruru respondents at the on-country preservation evidence hearing in the GMY proceeding in 2016. He also gave preservation evidence in 2014 as part of the Yinhawangka Part A and Part B proceedings. The Jurruru applicant relies on David Cox’s witness statement dated 22 May 2014 and his oral evidence on 2 July 2014 at the Ballary Springs community, in the Yinhawangka Part A and Part B proceedings, and on his witness statement dated 22 April 2016 and his oral evidence on 16 and 17 May 2016 at the Wilugari community in the GMY proceeding.

77    Nancy Tommy gave evidence for the GMY applicant at the on-country preservation evidence hearing in the GMY proceeding. The Yinhawangka Gobawarrah applicant relies on Nancy Tommy’s witness statement dated 1 May 2016 and her oral evidence on 16 May 2016 at the Wilugari community in the GMY proceedings.

David Cox

78    David Cox was born in 1942 at Rocklea in Yinhawangka country, which is where he grew up. His Aboriginal name is Barndu. He is a Yinhawangka elder and his skin is Karimarra.

79    Mr Cox’s father was Frank Cox (Wiribungu) and his mother was Daisy Cox (Windi). Growing up, his parents worked at Rocklea station, and later Wyloo, Mt Stuart, Boolaloo and Nautarra stations. His parents owned horses and a wagon and were independent. As an adult, he worked on different stations in Pinikura country, Banjima country and Thalanjyi country. In the 1960s he moved to Onslow and helped set up the Bindi Bindi community.

80    Mr Cox conceded in cross-examination that he did not learn much about country from his father because he “left here when I was a kid”. He was taught about Yinhawangka country mostly by Stanley Dellaport, an elder variously described by different witnesses as a Yinhawangka, Guruma or Banjima man. Mr Cox’s written evidence was (at [62]):

I got the Yinhawangka law from other Yinhawangka people, from Stanley Dellaport, Jerry Hyland, Joe Injie, Joe Limerick and Cookie. Old Dellaport was a leading man in my teaching of Yinhawangka law, he taught me everything. Old Jerry Hyland, Tadgee Limerick’s dad, was a Ngarla but he knew a lot about Yinhawangka country because he travelled through that country a lot and he was a next door neighbour. Hyland was a cheeky man. What they taught me was all the Yinhawangka law. I know Yinhawangka country, and the special places and the songs. I know big ceremony songs for when we hold our ceremonies on Yinhawangka country. These are very old songs that have been handed down to us.

Nancy Tommy

81    Nancy Tommy is the elder sister of Roy Tommy, and she is also a member of the applicant in the Yinhawangka Gobawarrah claim. She was also formerly a member of the applicant in the GMY claim, and was married to Toby Smirke.

82    Mrs Tommy was born in 1951. She identifies as Yinhawangka. Her mother was Mabel Tommy and her biological father was Johnson Hicks, who identified as Guruma. Her skin is Purungu and her Aboriginal name is Bimbayurra (a name given to her by Nyimili Tommy).

83    Mrs Tommy knew Jimmy Smirke before she married his son, Toby Smirke, during the time they were both living near the homestead at Ashburton Downs. It is an agreed fact that Nancy “always recognised that Ashburton Downs homestead was [Jimmy’s] Jurruru country”. Jimmy Smirke later lived with Nancy and Toby at Kooline station, in Jurruru country. It is an agreed fact that they never lived together in the overlap area, and never talked together about sites in that area or who that area belonged to.

Other significant Yinhawangka Gobawarrah people

Mabel Tommy

84    Although Mrs Tommy was in no sense a witness in these proceedings, her presence through the Mr Haydock’s tapes recorded in 1999, and her prominence otherwise in the evidence, makes it appropriate to say a little bit more about her early on in these reasons.

85    Mrs Tommy was born in about 1926 in Guruma country to the north of the overlap area. Her Aboriginal name was Jirrirringu. Her mother was Maggie Bimba and her maternal grandmother was Kurta Kurta, who was born and died in Jabaguru. Her siblings were Jambu Giggles, Inji, Limerick, Muyit Smith and Kurnti.

86    Mrs Tommy identified as Yinhawangka and was a fluent Yinhawangka speaker. Her first husband was Nyimili Tommy.

87    Later, she was with Chunki Smith and then Algie Patterson. Her own children were Nancy Tommy, Roy Tommy, Julie Walker and Moira Tommy.

88    Mrs Tommy was a member of the applicant in the GMY claim and helped draw the boundaries of the claim. She knew a lot of old balgabi songs and was a traditional midwife under Yinhawangka law and custom. She was buried at Jabaguru in 2001. Her daughter Moira was also buried at Jabaguru in 2001. The fact that they were each buried at Jabaguru features in several aspects of the evidence.

Nyimili Tommy

89    As I have noted, Nyimili Tommy was Mabel Tommy’s first husband. His Aboriginal name was Bulkangari and he was also known as Ashburton Tommy. It is an agreed fact that he was a “big Law man” and “mabarn” man. It is also an agreed fact that his parents, Nijawarla and Gujarda, both had Yinhawangka ancestors.

90    David Cox’s evidence was:

I don’t know what mob he from. Might be Ngarla, you know? Because he talk Ngarla. Most of the time he’d talk Ngarla.

91    Nancy Tommy’s evidence was:

My old father (babu juju) is Nyimili Tommy also known as Ashburton Tommy. He is a Yinhawangka man. He only ever talked about himself as Yinhawangka. My mother was young when she got with him. She told me it was a traditional promised marriage – arranged by her grandmothers. She said the old people arranged for her to be with Nyimili Tommy to strengthen our Yinhawangka people’s connection to our land.

92    Mabel Tommy’s account in Mr Haydock’s 1999 tapes was:

He Yinhawangka. He born from Yinhawangka, he Yinhawangka in the mother way, he Yinhawangka in the father way.

93    Nyimili Tommy helped set up Mininer station and built the stockyard at Jabaguru. He was Roy Tommy’s “raising father”; Roy spent his early years with him at Ashburton Downs station, where Nyimili Tommy was working.

94    As an old man, Nyimili Tommy moved to Onslow, where he died.

Jambu Giggles

95    Jambu Giggles was one of the original members of the GMY applicant. His parents were Kalpi/Galby and Maggie Bimba, and his siblings included Mabel Tommy and Muyit Smith. He does not appear to have had children.

96    Jambu Giggles’ skin was panaka. He was a senior Yinhawangka man who went through the Law in the 1940s at Jigalong. It is an agreed fact that he was “high up in the Law”. He passed away in 2018, at nearly 100 years of age.

Muyit Smith

97    As I have noted, Muyit Smith was a sister of Jambu Giggles and Mabel Tommy, and her parents were Kalpi/Galby and Maggie Bimba. Her non-Aboriginal name was Amy, which was given to her at Rocklea station, where her mother worked as a cook.

98    Muyit Smith identified as Yinhawangka and was one of the original applicants in the GMY claim. She married a Guruma man called Jack Smith and had six children. Two of her children identify as Yinhawangka and the rest identify as Guruma.

The Jurruru claim group and the key Jurruru witnesses for the overlap dispute

99    The applicant in the Jurruru #1 claim originally comprised Toby Smirke, David Smirke, Peggy Smirke, Linda Smirke, Shirley Smirke and Lorraine Smirke. Subsequently an amended Form 1 was filed which altered the constitution of the applicant to Ivan Smirke, Shirleen Cox, Paula Smirke, Kellman Limerick and Nathaniel Tommy. After an amendment, the same people comprised the applicant for the Jurruru #2 claim.

100    After the hearing of the separate questions, an interlocutory application under s 66B of the Native Title Act 1993 (Cth) was made on 3 July 2020. The interlocutory application was not opposed by either the State or the Yinhawangka Gobawarrah applicant. On 1 October 2020, the Court made orders in both proceedings replacing the applicants with Ivan Smirke, Kellman Limerick and Alec Alexander: Smirke on behalf of the Jurruru People v State of Western Australia [2020] FCA 1410.

101    The apical ancestors in the Jurruru #1 and Jurruru #2 claims are named as Kantitharra and Punartu. There was some debate in the evidence whether or not they may have been brothers. Kantitharra is the Jurruru apical ancestor on which there was a focus in the evidence. Each of the members of the current Jurruru applicant, and indeed most if not all of the claim group members, are descendants of the apical ancestor Kantitharra through Jimmy Smirke, who was Kantitharra’s son, and Jimmy Smirke’s wife Alice Wilyardany. I have identified their children, including Toby and David Smirke, above. Peggy Smirke’s and David Smirke’s evidence was that another son, Rodney Smirke, was taken by welfare and never seen again.

102    Of the members of the current applicant:

(a)    Ivan Smirke is the son of Toby Smirke and Nancy Tommy;

(b)    Kellman Limerick is the son of David Smirke and Pauline Limerick; and

(c)    Alec Alexander is the son of Linda Smirke.

103    The Jurruru applicants relied on evidence from the following lay witnesses at the hearing of the separate question:

(a)    Ivan Smirke;

(b)    Marlon Cooke; and

(c)    Brendon Cook.

104    Although Kellman Limerick is a member of the Jurruru applicant, and part of the younger generation of the Jurruru People, and although he is mentioned quite frequently in the evidence (including by Dr McGrath), he did not give evidence. There is no explanation in the evidence about why this was so.

Ivan Smirke

105    Ivan Smirke was born in 1971 in Carnarvon, Western Australia. He identifies as Jurruru through his father, Toby Smirke. His mother, Nancy Tommy, is a member of the applicant in the Yinhawangka Gobawarrah claim.

106    Ivan Smirke grew up on Kooline station, which is within the Jurruru Part A determination area. He learned and spoke the Banjima language growing up, which was the main language spoken in the places he lived.

107    Mr Smirke’s skin is panaka, which is the same as his maternal grandmother, Mabel Tommy (Jirrirringu). Ivan Smirke used to spend time with his grandmother at the Waramboo outcamp on Yarraloola station, and also at the Bellary Aboriginal community near Tom Price.

108    Mr Smirke gave evidence that he went through the Yindjibarndi Law on Yindjibarndi country. When he went through the Law, his mother Nancy Tommy, maternal grandmother Mabel Tommy, Jambu Giggles, Muyit Smith and Gladys Walker (Muyit Smith’s daughter) were with him at the Law camp. Jambu Giggles joined Ivan Smirke at the men’s camp.

Marlon Cooke

109    Marlon Cooke was born in 1982 in Dampier, Western Australia, and grew up around Roebourne. He identifies as Yinhawangka and is a native title holder under the Yinhawangka Part A and B determination.

110    Mr Cooke’s mother, Doris Limerick, was Yinhawangka. His maternal grandfather, who Marlon never met, was known as Cookie, and was Yinhawangka. His maternal grandmother was Dora Dellaport, who was Guruma. Marlon Cooke’s father was a non-Aboriginal man. When he was 12 years old, Mr Cooke’s mother married Joseph Limerick, a Ngarlawangga/Yinhawangka man.

111    In his evidence, Mr Cooke described how on his grandmother’s side “you go back” to the ancestors common to both the Yinhawangka determination and the Yinhawangka Gobawarrah claim – Thurantajinha and Wilga. However, in his oral evidence he accepted that the main ancestor through whom he claims is Minatangunha.

112    Mr Cooke has been through the wardilba Law. Like Brendan Cook, Marlon Cooke gave evidence as a Yinhawangka person in support of the Jurruru claims.

Brendon Cook

113    Brendon Cook was born on 6 September 1966 in Onslow, Western Australia. He grew up around Onslow, Carnarvon, Wittenoom and Roebourne.

114    Mr Cook’s Aboriginal name is Bagadu. He identifies as Yinhawangka through his father, Nicholas Cook, who was a member of the applicant in the former Innawonga claim. Mr Cook’s mother, Joyce Drummond, is Malgana and Nanda, from further to the west. His six siblings all identify as Yinhawangka through their father.

115    Brendon Cook shares paternal grandparents with Marlon Cooke: Brendon’s paternal grandfather was known as Cookie or “Cookie Cutacross” and his paternal grandmother was Dora Dellaport. Both of his paternal grandparents lived and worked at Ashburton Downs station which covers a significant part of the overlap area, although the area around the homestead is just outside the overlap area to the west, on Jurruru country. Mr Cook’s father Nicholas also spent time on Ashburton station as a child, where Mr Cook’s evidence was that he would be looked after by Mabel Tommy.

The Yinhawangka Gobawarrah claim group and the key Yinhawangka Gobawarrah witnesses for the overlap dispute

116    The Yinhawangka Gobawarrah applicant comprises Roy Tommy, Nancy Tommy, Mr E.G. and Mary Mills. The members of the applicant are all descendants of the children of Maggie Bimba and Kalpi/Galby. Maggie Bimba was a daughter of Kurta Kurta, and through Kurta Kurta the granddaughter of the Yinhawangka Gobawarrah apical ancestors Thurantajinha and Wilga.

117    Nancy and Roy Tommy are both children of Mabel Tommy. Their Aboriginal father was Nyimili Tommy, who was the son of Gujarda and Nijawarla Johnny. Gujarda is another Yinhawangka Gobawarrah apical ancestor. Gujarda’s genealogy is disputed by the Jurruru applicant and the State.

118    Mary Mills is the daughter of Muyit Smith, another of Maggie Bimba and Kalpi/Galby’s daughters.

119    Mr E.G. is the son of Kurnti Kalbi, who was one of the sons of Maggie Bimba and Kalpi/Galby.

120    The Yinhawangka Gobawarrah applicant called the following lay witnesses at the hearing of the separate question:

(a)    Roy Tommy;

(b)    Julie Walker;

(c)    Donald Limerick;

(d)    Leon Galby; and

(e)    Kurston Tommy.

121    The Yinhawangka Gobawarrah applicant had initially proposed also to call Nancy Tommy. Mrs Tommy had given preservation evidence in 2016 as part of the GMY claim. During the course of the hearing, counsel for the Yinhawangka Gobawarrah applicant indicated it proposed to rely on Mrs Tommy’s evidence from that proceeding. Neither the Jurruru applicant nor the State objected to this course. The Court did hear some brief explanations of various plants found at Jabaguru from Mrs Tommy, with Julie Walker.

Roy Tommy

122    Roy Tommy was a key lay witness, and as I have explained also a member of the applicant for the Yinhawangka Part A and Part B applications. At the time of trial, he was employed as Senior Heritage Officer at the Yinhawangka Aboriginal Corporation.

123    Mr Tommy was born on 11 August 1959 in Roebourne. He identifies as both a Yinhawangka and Gobawarrah Yinhawangka man. His skin is Purungu, and his Aboriginal name is Pitithangu. His mother was Mabel Tommy and his “raising father” was Nyimili Tommy.

124    Roy Tommy spent his early years at Ashburton Downs station, with his mother, Mabel Tommy, Nyimili Tommy and his twin sister Julie. He went through the Law at Cane River in the 1980s.

Julie Walker

125    Julie Walker is the twin sister of Roy Tommy, and is also a member of the applicant in the Yinhawangka Gobawarrah claim. She is also a common law native title holder in the Yinhawangka Part A and B determination.

126    Mrs Walker identifies as both Yinhawangka and Yinhawangka Gobawarrah. Her Yinhawangka name is Walkyn, and that name was given to her by her maternal grandmother Maggie Bimba. Julie’s skin is Purungu, which is the same skin as her ancestor Wilga, who is classified as Ms Walker’s sister under the Yinhawangka kinship system.

127    Like her twin brother, Mrs Walker spent her early years, until age five, living at Ashburton Downs station. She went to school in Onslow, but during holidays she and Roy went back to Ashburton Downs and some other stations on neighbouring Ngarla country, depending on where her mother and father were working at the time. The family used to travel and camp back and forth along the Meekatharra Ashburton Downs road where it goes through the overlap area. She also spent some time living at Kooline station when she was around 14 or 15 years old, when she was looking after her sister Nancy’s son, Ivan Smirke. Under the Yinhawangka kinship system, Ivan Smirke calls Mrs Walker mum.

128    After being the first Aboriginal student to finish year 12 at Port Hedland, Mrs Walker moved to Perth to study at university and graduated with degrees in social work. She would return to the Pilbara for holidays, including to visit her mother Mabel Tommy who was then living with Algie Patterson, an old Robe River Guruma man. Julie Walker can speak some Yinhawangka words, and considers language an important part of her identity.

129    Mrs Walker recalls visiting sites in the area known as Jabaguru (the pool in the river, the nearby hill and the meeting camp area) with her mother when she was young. She has visited those sites many times, both with her mother and with her own children. She visits the area at least twice a year to maintain the grave sites there and to pay respect to the spirits of her ancestors.

Donald Limerick

130    Donald Limerick is a member of the Yinhawangka Gobawarrah claim group.

131    He was born on 11 September 1966 in Onslow. His father, Joe Limerick, was Yinhawangka. Joe’s mother was Maggie Bimba and his father was Kalpi/Galby. Thus, Joe Limerick was a sibling of Mabel Tommy.

132    Mr Limerick’s mother, Tadjee, is a Ngarla woman. He has three brothers.

133    Mr Limerick was raised at Koodarie station, near Onslow, where his mother and father worked. Like many others, he went to primary school in Onslow and then high school in Port Hedland. After he left school and married he worked at Yaraloola station, where he regularly visited his aunt Mabel Tommy, who was then living at the outcamp at Yaraloola with Algie Patterson. He moved around in those days to work on different stations. He then moved to Port Hedland and got married again. He lived there for about 11 years and then moved to Karratha with his third wife and ended up getting a job at West Angelas, where he works now.

134    Mr Limerick went through the Bidarra Law in 1984 at the Yindjibarndi Law Ground at Woodbrook, near Roebourne. He is involved in Law business in the Pilbara in places including Woodbrook, Cane River, Bellary, Wakkathuni, Jigalong and La Grange.

Leon Galby

135    Leon Galby is a member of the Yinhawangka Gobawarrah claim group.

136    Mr Galby was born on 17 May 1981 at Carnarvon. His mother is Lynette Galby, and his mother’s father was Kurnti Kalbi, who was another sibling of Mabel Tommy and Joe Limerick from their mother Maggie Bimba. His skin is karimara.

137    Leon Galby grew up around Carnarvon, Karratha, Onslow and Bellary. As a teenager, he lived with his uncle Mr E.G. at the Bellary community for a few years. Mr Galby’s classificatory grandfather (his maternal grandfather’s oldest brother) was Jambu Giggles, and his classificatory grandmother (his maternal grandfather’s oldest sister) was Mabel Tommy. They were both living at the Bellary community when he was living with Mr E.G.

138    Leon Galby went through the Bidarra law at Woodbrook in 1998.

139    Mr Galby assisted with the burial of Moira Tommy (Mabel’s daughter) at Jabaguru in 2001, along with his Uncle Mr E.G., and his Aunt Nancy Tommy’s sons Ivan, Halloway and Nathaniel.

Kurston Tommy

140    Kurston Tommy is a member of the Yinhawangka Gobawarrah claim group.

141    Kurston Tommy was born in 1978. His mother is Julie Walker. He has two brothers. His skin is banaka, which is the same skin as his grandmother, Mabel. His Aboriginal name, Kurumangu (which is also his totem, the goanna), was given to him by his old grandfather Algie Patterson, Mabel Tommy’s last husband. Kurston Tommy has ancestry from Halls Creek and the Noongars in south-west Western Australia on his father’s side, but he identifies as Yinhawangka, through his mother. He is married to a Thursday Island woman and he helps bring up her children.

142    When he was young, Kurston Tommy lived with his mother in Perth, and later in Onslow. He would visit his grandmother Mabel and Algie Patterson during the holidays at Algie’s country near Pannawonica. He has moved around quite a lot, but he did the last three years of his apprenticeship in Paraburdoo where Mabel and Moira Tommy were living at the time.

143    In 1999 or 2000, Mabel Tommy arranged for Kurston Tommy to go through the Bidarra Law (being the Yindjibarndi Law). Mr Tommy is able to participate in Law Business in places like Cane River, Bellary or Wakkathuni.

144    Kurston Tommy helped to prepare Mabel Tommy’s burial site at Jabaguru. He visits his ancestors’ graves in Jabaguru from time to time, as well as Mabel’s father’s grave (that is, Kalpi/Galby) near the Ashburton Downs homestead, on Jurruru country.

The family connections between the Smirke and Tommy families

145    The family relationships between the groups may well be apparent by this stage, but it is appropriate to emphasise them.

146    Nancy Tommy was married to Toby Smirke. They separated when their son Ivan Smirke was around ten years old.

147    The children of Nancy and Toby – Ivan Smirke, Halloway Smirke, Nathaniel Smirke and Kieran Smirke – have both Yinhawangka and Jurruru ancestry. Through their mother, they can claim a connection to Thurantajinha and Wilga. Ivan Smirke identifies as Jurruru. Halloway Smirke and Nathaniel Smirke identify as Jurruru through their father and Yinhawangka through their mother. Kieran Smirke started identifying as Yinhawangka after his mother, but has recently made it clear he wants to follow his Guruma grandmother’s side.

148    Dr McGrath, the Jurruru expert anthropologist in this proceeding, described the close familial connection between members of the Jurruru and Yinhawangka Gobawarrah claim groups in her expert report:

[T]he Jurruru people and members of the Yinhawangka Gobawarrah group are very close family; in fact, as close as you can get. The most senior elder of the Jurruru people, Toby Smirke, was at one time married to a senior elder of the Yinhawangka Gobawarrah group, Nancy Tommy. Toby and Nancy have four sons, whom variously identify as either Jurruru or Yinhawangka. Other members of the Jurruru people include the children of Toby Smirke’s siblings and other extended family members who share descent from Jurruru ancestors; other members of the Yinhawangka Gobawarrah people include the children of Nancy’s siblings and other extended family members who share descent from Yinhawangka ancestors.

The Cooke/Cook family

149    As I have stated, Marlon Cooke and Brendon Cook are Yinhawangka men who appeared as witnesses on behalf of the Jurruru applicant in this proceeding.

150    They are both second-generation descendants of Cookie Cutacross (who was Yinhawangka) and Dora Dellaport (who was Guruma). Dora Dellaport’s grandmother, Maybanba Millie, was the sister of Maggie Bimba (who was Mabel Tommy’s mother). The descendants of Dora Dellaport in the Cook or Cooke family, like members of the Tommy family, can trace their ancestry to Kurta Kurta, and then to Thurantajinha and Wilga.

The Limerick family

151    The Limerick family are close relatives of the Tommy family. Joe Limerick was Mabel Tommy’s brother. He had seven children and one of his sons, Donald Limerick, is a member of the Yinhawangka Gobawarrah claim group and appeared as a witness for the Yinhawangka Gobawarrah in this proceeding. One of Donald Limerick’s brothers, Joseph Limerick, married Doris Cooke (a daughter of Cookie Cutacross and Dora Dellaport). Joseph and Doris’s son is Marlon Cooke.

152    Through marriage, the Limerick family are also related to the Smirke family. Donald Limerick’s late sister, Pauline, was married to David Smirke. Pauline and David’s son, Kellman Limerick, is a member of the applicant in the Jurruru claims.

The Cox family

153    The Cox family are descendants of a Yinhawangka ancestor named Jarndunha. One of Jarndunha’s descendants is David Cox.

154    Through marriage, the Cox family are related to the Smirke family. David Cox’s brother, Gilbert Cox, was married to Peggy Smirke. Their daughter, Shirleen Cox, is a member of the applicants in the Jurruru #1 and #2 applications.

155    David Cox’s family have associated with the Tommy family in the past. His three children were occasionally fostered by Mabel Tommy during school holidays, when Mabel was living with Algie Patterson.

The Galby family

156    The Galby family are related through marriage to the Tommy family. Kalpi/Galby was Maggie Bimba’s husband, and together they were the parents of six children (from oldest to youngest): Jambu Giggles, Inji, Mabel Tommy, Joe Limerick, Muyit Smith and Kurnti Kalbi. Kalpi/Galby died at Ashburton Downs station and was buried at the station.

157    Kurnti Kalbi had two children: Mr E.G. and Lynette Galby. Lynette’s son, Leon, is a member of the Yinhawangka Gobawarrah claim group and appeared as a witness for the Yinhawangka Gobawarrah applicant in this proceeding.

OTHER EVIDENCE

158    Both applicants put a number of different categories of evidence before the Court during the oral hearing. This evidence was filed as part of a court book and supplementary court book prior to the on-country hearing. A further supplementary court book was filed in relation to the expert evidence hearing in December 2019. During the course of the separate question hearing, both the Yinhawangka Gobawarrah applicant and the Jurruru applicant raised objections to documents and parts of documents in these court books on several occasions, and the Court advised the parties that a final court book would need to be settled and filed prior to closing oral submissions. Most objections were resolved by agreement.

159    Having advised the Court that while the majority of the contents of the final court book were agreed, on 20 February 2020, the Yinhawangka Gobawarrah applicant and the Jurruru applicant filed written submissions in relation to the outstanding objections between them. Rulings were made on 21 February 2020 excluding several documents from the court book. A final version of the court book was filed on 24 February 2020 and marked as an exhibit in the proceeding. There are also three exhibits that were received during the course of the trial but not included in this final court book: a map of the overlap area, a map of the surrounding region and a photograph of a Yinhawangka shield.

160    After the closing submissions, the parties filed replacement versions of three court book items, as the former versions were missing pages that were subsequently referred to by the parties in closing submissions.

161    In considering all of the evidence, in particular the lay evidence (whether preservation evidence or given as part of the separate question hearing), I have taken into account the parties’ statements of cultural and customary concerns which was filed in this proceeding. That statement provides a guide, and a reminder, to the Court about some of the particular challenges and circumstances which arise in considering evidence given in native title proceedings. However, the document does not require the Court to make any particular findings about particular evidence, nor does it preclude it from making findings that particular evidence is not reliable or credible.

Documentary evidence

Relevant claim documents

162    The following documents were put to the Court to be admitted into evidence which related to other proceedings:

(a)    GMY Form 1 filed 25 June 1997;

(b)    GMY amended Form 1 filed 23 December 1997, including a NNTT file note;

(c)    Innawonga amended Form 1 filed 16 June 1999;

(d)    GMY amended Form 1 filed 30 August 1999; and

(e)    GMY amended Form 1 filed 3 August 2010.

Other documentary evidence

163    The following documents relating to the Jurruru claims are in evidence:

(a)    Genealogy of Jurruru preservation evidence witnesses prepared in 2013 (Jurruru preservation evidence Exhibit #2);

(b)    Book of photographs referred to in Jurruru preservation evidence prepared in 2013 (Jurruru preservation evidence MFI #3);

(c)    List of words used for Jurruru preservation evidence dated 11 June 2013 (Jurruru preservation evidence Exhibit #4); and

(d)    Photograph of a shield received during the course of the separate question proceeding marked as Exhibit #J1.

164    The following documents relating to the Yinhawangka Gobawarrah claim are in evidence:

(a)    Genealogy of Nancy Tommy’s mother’s side of the family (GMY preservation evidence Exhibit #7);

(b)    Genealogy flow chart of Nancy Tommy’s father’s side of the family (GMY preservation evidence Exhibit #8);

(c)    Photograph at Ngurlunana (Site No 75) of Minier Hill and Mt Elephant taken in January 2010, marked Annexure C (GMY preservation evidence Exhibit #13);

(d)    Indigenous Deed of Agreement between Innawonga Native Title Claimants and GMY Native Title Claimants undated from 2010 (GMY preservation evidence Exhibit #10);

(e)    Yinhawangka Gobawarrah photographs titled:

(i)    Limerick, wife and others;

(ii)    Mabel Tommy, Roy Tommy and children cooking emu;

(iii)    Marrabaya;

(iv)    Muyit making fighting stick;

(v)    Roy Tommy and grandson at grandfather’s grave;

(vi)    Mr E.G. at Wilugari Claypan taken in 2015;

(f)    A further book of undated Yinhawangka Gobawarrah photos;

(g)    Book of photographs compiled in 2016 (GMY preservation evidence hearing Exhibit #9); and

(h)    Abbreviated genealogies of Yinhawangka Gobawarrah apical ancestors Thurantajinha and Wilga, and Nijawarla and Gujarda dated July 2019.

Maps and site lists relied on by both parties

165    A number of maps and site lists relating to the overlap area are in evidence, including:

(a)    Map of original GMY claim area dated 13 May 2019;

(b)    Map of proposed Jurruru claim area dated 20 June 2000;

(c)    Maps and site lists tendered as exhibits during the Jurruru preservation evidence;

(d)    Maps and site lists tendered during Yinhawangka Part A and B preservation evidence;

(e)    Maps tendered during GMY preservation evidence;

(f)    Topographical maps of Yinhawangka determination area dated 9 May 2019;

(g)    Map of native title determinations surrounding the overlap area dated 10 May 2019 prepared by YMAC;

(h)    Maps prepared on behalf of the Yinhawangka Gobawarrah applicant:

(i)    Yinhawangka Gobawarrah map PB#1 – map showing Yinhawangka Gobawarrah and Jurruru sites dated 3 June 2019;

(ii)    Yinhawangka Gobawarrah map PB#2 – map showing Yinhawangka Gobawarrah sites dated 3 June 2019;

(iii)    Yinhawangka Gobawarrah map PB#3 – map showing Jurruru sites dated 3 June 2019;

(iv)    Yinhawangka Gobawarrah map PB#4 – regional map showing Yinhawangka Gobawarrah sites dated 3 June 2019;

(v)    Yinhawangka Gobawarrah map PB#5 – regional map showing earlier native title claims dated 3 June 2019;

(vi)    Yinhawangka Gobawarrah map PB#6 – regional map showing current claims and determinations;

(i)    Yinhawangka Gobawarrah site list correlating with the Yinhawangka Gobawarrah site maps above;

(j)    Map from the GMY amended Form 1 dated 26 November 1997;

(k)    Map of the overlap area with markings by witnesses, marked up as Exhibit #1 in this proceeding; and

(l)    Map of the wider region around and including the overlap area with markings by witnesses, marked as Exhibit #2 in this proceeding.

166    There was also an affidavit in evidence of Mr Ambrose Cummins, solicitor and director of Cross Country Native Title Services, dated 2 July 2019 regarding the preparation of these Yinhawangka Gobawarrah maps. Mr Cummins’ affidavit deposes that these maps were prepared by Paperbark Corporation Services based on Dr Daniel Vachon’s anthropological data, information provided by Mr Cummins relating to his research for the Yinhawangka Gobawarrah claim, and the map prepared by YMAC dated 1 October 2018 produced at p 276 of the expert overlap report of Dr McGrath. The consultant who prepared the maps advised Mr Cummins that, due to the method used to transcribe the Jurruru sites, these sites are only accurate to within 400 m.

Aide materials

167    The Yinhawangka Gobawarrah applicant tendered a list of the main people connected to the separate question proceeding, with short information on each about their family and claim group connections. It also tendered a short list of Yinhawangka words and their English translation.

Expert reports and other anthropological research documents

168    Prior to the commencement of the hearing of the separate question, it became apparent that there were pre-existing anthropological reports relevant, or potentially relevant, to the question of which people hold native title in the overlap area. The Jurruru applicant and the Yinhawangka Gobawarrah applicant, with the assistance of the State and the apparent concurrence of YMAC, reached agreement about the production and use of several of those pre-existing anthropological reports, many of which are now in evidence and are described below.

169    However, not all of the pre-existing anthropological reports were made available to both parties. The Jurruru applicant sought to obtain reports by Dr Anna Kenny and Dr Lee Sackett by way of subpoena addressed to YMAC. YMAC objected on the bases of legal professional privilege and without prejudice privilege, and an interlocutory hearing was held. YMAC ultimately did not maintain its objection to the production of this report by Dr Kenny and the Court overruled its objections to the production of Dr Sackett’s reports: see Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551. These reports are now in evidence and are described below. There remains however, one other report by Dr Kenny which was not tendered in evidence.

Dr McGrath’s report and research materials

170    Dr Pamela McGrath appeared as an expert witness, called by the Jurruru applicant. Amongst other qualifications, Dr McGrath holds a PhD in Interdisciplinary Cross-Cultural Research (Anthropology and History) in relation to the “ethnographic history of the settlement of the Western Desert in the [1950s]” from the Australian National University. She has also worked previously in the overlap area between 2000 and 2002 when she was employed as a Research Project Officer with the Pilbara Native Title Services where she undertook field work relating to the Jurruru claim. She has previously prepared a connection report for the Puutu Kunti Kurrama People and the Pinikura native title claim in the Pilbara region.

171    Dr McGrath’s report is dated 1 November 2018. She explains at [167]-[168] of her report that she was unable to undertake on-country field work due to heavy rains, and rather relied on interviews with Jurruru, Yinhawangka and Ngarlawangga people in June 2018 and her on-country fieldwork in the overlap area in 2001 undertaken in the course of her employment with the Pilbara Native Title Services. Only parts of her research and source materials are in evidence. They are:

(a)    Handwritten field notes from 15 November 2000 to 22 July 2001, including records of conversations with people significant to this proceeding such as Toby Smirke, Peggy Smirke, and Mabel Tommy, records of a “Jurruru/Innowonga boundary negotiation” on 13 March 2001, and the minutes of the “Jurruru Working Group” meeting on 22 July 2001.

(b)    Video recordings of Dr McGrath interviewing:

(i)    Toby Smirke on 14 March 2001 at the number nine crossing at Kooline station; and

(ii)    David Smirke, Dinny Tumbler, Slim Parker and Alloway Smirke on 12 March 2001 titled “Jurruru boundary interviews”; and

(c)    Handwritten field notes taken from interviews with Jurruru, Yinhawangka and Ngarlawangga people in June 2018.

172    Dr McGrath explains how she prepared her report:

During the course of my investigations for the Brief I undertook the following activities:

(a)    In-depth review of relevant published and unpublished documentary sources, including:

i.    Field notes, manuscripts, genealogies, maps, and audio recordings produced by anthropologists, linguists and other non-Aboriginal researchers and observers;

ii.    Peer-reviewed articles and books produced by anthropologists, linguists and other non-Aboriginal researchers and observers;

iii.    Published oral histories, biographies and autobiographies of Pilbara Aboriginal people;

iv.    Legal documents pertaining to Jurruru and Yinhawangka native title matters;

v.    Heritage survey reports and other unpublished reports relating to the Area of Interest;

(b)    Interviews and on-country visits with members of the Jurruru native title group and other Aboriginal people from the region with relevant knowledge of the Area of Interest, including with individuals who identify as Yinhawangka and Ngarlawangga people.

173    Dr McGrath explains that she was not provided with anthropological research undertaken by Dr Kingsley Palmer and Dr Anna Kenny in relation to the Jurruru #1 native title application previously as “it is subject to without prejudice privilege”. She also states that, at “a very late stage in drafting of this report”, she received a collection of oral history recordings and related material taken by Philip Haydock in 1999 documenting the knowledge of Yinhawangka Gobawarrah elders Mabel Tommy, Muyit Smith and Jambu Giggles. These are what I describe in these reasons as the “Haydock materials”. Despite the limited time available, Dr McGrath stated that she had “been able to substantially review the material”.

174    The Yinhawangka Gobawarrah applicant contended that Dr McGrath does not provide an analysis of the Yinhawangka Gobawarrah ancestors and has “not attempted” to analysis the Yinhawangka Gobawarrah’s evidence. The Jurruru applicant, on the other hand, submitted that Dr McGrath was “quite properly not prepared to draw the inferences that Dr Palmer drew based on limited data” in relation to the Yinhawangka Gobawarrah ancestors, and was “similarly unwilling” to draw such inferences in relation to the Jurruru apicals Kantitharra and Punartu.

Dr Palmer’s reports and research materials

175    At a fairly late stage of the proceeding, after the on-country hearing, the Yinhawangka Gobawarrah applicant engaged Dr Kingsley Palmer. He produced an expert anthropological report dated October 2019. I will call this the “2019 Palmer report”. The unfortunate history of attempts to secure an anthropological expert for the Yinhawangka Gobawarrah after the departure of Dr Vachon (due to lack of funding) before his report was completed is set out in the subpoena ruling referred to above: see Tommy (No 2) at [4]-[7].

176    Dr Palmer was provided with the documents contained in the trial court book and supplementary court book, along with transcripts of the on-country evidence, Dr Kenny’s 2011 report and Dr Sackett’s 2010 reports referred to below. He explained his approach to this material and writing in his report at [22]:

My approach in tackling the task assigned to me was simple enough. I first gave consideration to the issues identified for me and decided how best they might be addressed from an anthropological point of view. I then read such materials as I felt were likely to be relevant and which I could peruse in the time available to me. I make further comment on the limitations imposed upon me in this regard in paragraph 23 to 29 below. I then drafted the report, addressing each issue and associated supplementary questions in turn. I next reviewed what I had written, making such corrections and amendments as I thought necessary. I provided the draft report to Cross Country Native Title Services on 23rd October 2019. On the evening of 27 October I was furnished with some comments relating to matters of fact, the evidentiary basis of opinions and typographic errors along with the identification of data included in the extensive materials already provided to me (see below) for my further consideration. I addressed these matters and delivered the final version of this report to the client on 30th October 2019.

177    Dr Palmer has conducted anthropological fieldwork in the Pilbara region since the early 1970s and produced expert reports in relation to four native title claims in the Pilbara: Jurruru, Banjima, Kariyarra and Yindjibarndi. In relation to the Jurruru claim, Dr Palmer prepared a connection report in 2007 for the Jurruru Part A determination. I will call that the “2007 Palmer Jurruru report”. He also prepared a report about the overlap between the Jurruru #1 claim and GMY claim in 2008, covering the overlap area in this proceeding between the Jurruru #1 claim and the Yinhawangka Gobawarrah claim. I will call that the “2008 Palmer overlap report”. These reports were provided to the State in support of the Jurruru People’s connection with the Jurruru Part A Determination area: Smirke at [14]. Both of these reports are also in evidence, as well as Dr Palmer’s consolidated field notes taken in relation to the Jurruru connection report between 2006 and 2007.

178    The Jurruru applicant cautioned against too much reliance on the 2007 Palmer Jurruru report and the 2008 Palmer overlap report. It contended the 2007 report did not consider the overlapping GMY claim, and the 2008 overlap report only considered information from some of the GMY people and not the broader Yinhawangka. The Jurruru applicant contends Dr Palmer has done only very limited work with Yinhawangka people.

179    The Jurruru applicant submitted that while Dr Palmer is an experienced and respected anthropologist, the Court should be cautious about relying on his opinion where it contradicts that of Dr McGrath’s due to the limitations apparent in his 2019 report, namely the limited nature of his brief and the limited time available to him to prepare, which limited the extent of the material he considered. It further contends that Dr Palmer’s opinions were “based on inference bordering on speculation” and challenged a number of aspects of his methodology, which I discuss below in more detail.

180    The Yinhawangka Gobawarrah applicant contended that Dr Palmer’s evidence should be considered in the context of his extensive experience in the Pilbara, in native title claims and as an anthropologist. It relies on all of the reports by Dr Palmer in evidence, where relevant.

Dr Vachon’s draft report

181    Dr Daniel Vachon was initially engaged as the Yinhawangka Gobawarrah applicant’s anthropological expert; however, due to difficulties faced by the Yinhawangka Gobawarrah applicant in securing funding, he was not funded to complete his report and accordingly he did not complete it.

182    Excerpts of his expert report were filed with the Court on 19 January 2019, including a draft site register, site map, and table of sites dated November 2018. Dr Vachon also attended the first experts’ conference with Dr McGrath prior to the on-country hearing; however, the outcomes of that conference are not in evidence.

183    The Yinhawangka Gobawarrah applicant does not rely on Dr Vachon’s report, other than to identify the sites he recorded, which were also relied on by Dr Palmer and Dr McGrath in their expert opinions. The Jurruru applicant contends that the report should be given no weight, as it is incomplete and the author was not called. The excerpts from Dr Vachon’s report were seldom referred to in evidence or submissions.

Mr Haydock’s 1999 research materials

184    In 1999, anthropologist Philip Haydock and a lawyer named Noel Olive conducted ethnographic research with Jambu Giggles, Mabel Tommy and Muyit Smith. The research was commissioned by the GMY claim group from funds received from a future act negotiation. This research included genealogies and video recordings of these senior people talking about (amongst other things) their connection to country, including in the overlap area. The audio component of the video recordings was transcribed by linguist Doug Marmion. The following materials from this research are in evidence:

(a)    Parts of video recordings and transcripts of Mr Haydock’s research from April 1999-October 1999 (referring to tapes 1-2, 4-9, 11-15, 17-20, GMYB1, GMYB4, GMYB5) that record statements from Mabel Tommy, Jambu Giggles and Muyit Smith at multiple sites;

(b)    Extracts of the above tapes and transcripts of cultural songs and stories;

(c)    Handwritten field notes of Mr Haydock from April 1999 to June 2000;

(d)    Typed field notebook notes prepared by Mr Haydock in 1999;

(e)    A table prepared by Mr Haydock in 1999 with GMY place names, locations and a short description about the type of place;

(f)    Handwritten genealogies prepared by Mr Haydock in 1999; and

(g)    A map of the sites recorded by Mr Haydock’s research, prepared by Dr Vachon.

185    Mr Ambrose Cummins, solicitor for the Yinhawangka Gobawarrah applicant, has filed an affidavit dated 22 November 2016, with the following annexures:

(a)    a compilation of extracts from the Haydock tapes of approximately 2 hours 45 minutes;

(b)    an accompanying table of information about the recordings and their related transcript; and

(c)    extracts of the transcript that correlate with the compilation of the tapes and the accompanying table.

186    The Yinhawangka Gobawarrah applicant also relied on a shorter compilation of extracts from the Haydock tapes of approximately 9 minutes, 45 seconds duration and an accompanying transcript.

187    Roy Tommy described purpose of funding Mr Haydock’s research in oral evidence:

We made a bit of agreement with a gold mine and we used most of our money just to do all the sort of recording and we spent quite a fair bit of money just making sure that mum record and my uncle and my little mum record our land, because we know that – and my – especially my mum knew that, you know, we needed to do this because we never know what happens, you know, down the future and making sure we recorded our land, our history, our songs, all our sacred sites, you know, all our important waterholes in a way it is so we can actually pass this knowledge onto – not only to us as their siblings or their sons and daughters, but also through to the next generation, so grandchildrens, you know, and their grandchildren, so we know in the future that they will – that knowledge is there for them.

188    At the time of the recordings, only the GMY claim existed over the overlap area and the Jurruru #1 claim was not filed until a year or so later.

189    Both Dr Palmer and Dr McGrath reviewed the Haydock materials and used the materials as part of the basis for their opinions in this proceeding. Dr McGrath referred to the recordings of Mabel Tommy in the Haydock materials as “incredible video evidence” and “remarkable”. In expert evidence, Dr Palmer said:

The strength of that material in my view is that Haydock was asking people what I call the right questions in terms of native title. He was asking people – he asked them lots of things obviously – but in these particular bits that I pulled out and hopefully now corrected more exactly so that my legal friends can trace the actual origin of the statements which is the subject of that errata document we were talking earlier on. The questions and the time, particularly with his primary informant, gave him access to information which probably isn’t available first hand any more simply because this was a woman who had lived and known people a long way back.

190    The Yinhawangka Gobawarrah applicant and the Jurruru applicant made substantial submissions about this material, which is dealt with in my reasons below from [367].

Dr Kenny’s draft Jurruru overlap report and field reports

191    Dr Anna Kenny was contracted by YMAC in late 2010 to conduct research into the overlap area because of the ongoing dispute. She conducted fieldwork with both the Jurruru and GMY claim groups, as well as Yinhawangka people who were not part of the GMY claim group.

192    Three reports prepared by Dr Kenny are in evidence (after the process to which I have referred above):

(a)    Jurruru field report from 31 October 2010 to 6 November 2010 prepared by Dr Kenny in February 2011 for her work with the Jurruru claimants and some Yinhawangka people in regards to the overlap area. Parts of this report are redacted by agreement.

(b)    GMY field report from 7 to 14 November 2010 prepared by Dr Kenny in February 2011, for her work with the GMY claimants in regards to the overlap area.

(c)    A report entitled “Confidential and without Prejudice. Draft Expert Report on Jurruru Overlap Area and Triangle Area” dated 27 May 2011. I will call this the “Kenny overlap report”.

193    At [5] of her overlap report, Dr Kenny explained that after conducting her research she formed a view about both groups and expressed it in a (further and apparently separate) confidential report to YMAC. In a turn of events which is disappointing, but consistent with previous attitudes about the Court seeing all expert opinions produced in relation to this overlap area, Dr Kenny’s further report is not in evidence, and as far as I am aware, has not been seen by Dr McGrath or Dr Palmer.

194    Rather, the purpose of Dr Kenny’s overlap report that is in evidence was to outline the rights and interests of the Jurruru People only, without accounts from the GMY claimants. Dr Kenny explained her brief at [4]:

The brief for this report asks to use my previous research with the Jurruru people and any other non-GMY claim members and not to use or refer to any material that records information from GMY members. I did not conduct any further research for this report. I worked on this additional report for two days.

(Emphasis added.)

195    She further stated at [5]:

The findings in this report, however, are based only on the evidence presented to me by Jurruru and non-GMY Yinhawangka people in interviews and a fieldtrip between the 31 October 2010 - 3 November 2010, reports by Dr Kingsley Palmer and Dr Lee Sackett and in-house YMAC materials prepared with respect to the subject areas that were made available to me for this inquiry and my general knowledge of and experience in Aboriginal Australia since 1991.

196    The Jurruru applicant relies on Dr Kenny’s report for its case. It submitted that

[w]hile it may be said that Dr Kenny did not consider the basis for the YG claim now put forward by Dr Palmer, it is apparent she was not presented with such a basis by the GMY, which supports the Jurruru submission that the YG claim is a recent construction.

197    Roy Tommy gave evidence that he had shown Dr Kenny the Haydock materials and had offered her a copy of the materials, but she was not interested or refused to receive it. Somewhat in contrast, Julie Walker’s evidence was that Dr Kenny invited the GMY claim group to submit any materials they would like her to consider, and they did not provide the Haydock materials. Her explanation was:

[T]here’s sensitive stuff on that material that you wouldn’t give to people without agreement, and we didn’t have a – I worked for a Wangka Maya language centre, and how we do things is that we have agreement to – before we release material to people … and binding them to a confidentiality and also to ensure that they don’t copy or use it for any other purpose. And we didn’t – I never got that agreement from here.

198    When asked whether the Yinhawangka Gobawarrah had asked for such an agreement, Julie Walker’s evidence was unclear.

MR WRIGHT: Right. But you didn’t ask her for that agreement?

JULIE WALKER: Pardon?

MR WRIGHT: Did you ask her for that agreement?

JULIE WALKER: Well, she didn’t ask for the ’99 tapes either – recordings either.

MR WRIGHT: Right. But she asked just for any material that you wanted to have her consider?

JULIE WALKER: Yes. Well, she asked for material for the – that we – we’d already shared with her, so we shared – like, my brother had given her access to the audio on – and she was with – she came to the house at Haddy’s house on Tom Price, and he was playing it to her.

MR WRIGHT: Yes.

JULIE WALKER: So, she had access to that, yes.

199    It is a fair inference in my opinion that, whatever the explanation, Dr Kenny did not have the opportunity to consider the Haydock materials in detail, unlike Dr McGrath and Dr Palmer.

Dr Sackett’s reports

200    Dr Lee Sackett’s reports were obtained by the Jurruru applicant by way of subpoena to YMAC and by orders of the Court in Tommy (No 2). The following reports were produced by YMAC and tendered by the Jurruru applicant:

(a)    Yinhawangka connection report dated 2010 prepared in relation to the former relating to the former Innawonga, GMY and Innawonga Bunjima native title claims. I will call this the “Sackett connection report”.

(b)    “Gobawarrah Minduarra Yinhawangka and Jurruru Claims to the Overlap Area and the Unoverlapped Jabagurra Area, Confidential Report to YMAC, Perth” dated 2010. This is a short supplementary report to the Yinhawangka connection report by Dr Sackett of only nine pages, which addresses the overlap area. I will call this the “Sackett overlap report”.

201    Dr Sackett had not previously undertaken field research in the Pilbara prior to embarking on his research for these reports; however, he did substantially review anthropological materials relating to the area and undertook field research, involving a mixture of interviews, participant observations, and country visits and site recordings in three blocks, from 5-16 November 2007, 12-23 May 2008 and 8-17 September 2008. He relied substantially on data from Yinhawangka Gobawarrah members Nancy Tommy, Roy Tommy, Gladys Walker and Jambu Giggles.

202    In the Sackett overlap report, Dr Sackett explained that his views were largely shaped through his work with Yinhawangka people and he “undertook no real research with Jurruru people except for some individuals, such as Halloway Smirke”. He also qualified his opinions by reference to “severe time constraints”, which he explained meant he had not been able to review other relevant materials, including his own field notes, “to the extent that I otherwise might have”.

203    The Yinhawangka Gobawarrah applicant contended in closing written submissions that, despite Dr Sackett’s reliance on Yinhawangka Gobawarrah claim members, there are a number of errors in Dr Sackett’s reports and that his conclusions should therefore be read critically. It submitted that Dr Sackett’s unfamiliarity with the overlap area, along with only 11 days of on-country field work, “contributed to some misconstruction of the data”, including misunderstandings of the geography of the overlap area and the identities of, and personal relationships between, the informants and upper generations. For example, it contends that Dr Sackett “appears to misconstrue references to ‘Ashburton Downs’ as meaning the entirety of the pastoral lease, rather than the homestead (Site 37) as it is commonly described”, and Dr Sackett “fails to realise” that Mabel Tommy was married to Nyimili Tommy when she was a teenager, which “leads him to the incorrect conclusion” that Mabel Tommy’s children Nancy, Roy and Julie Tommy were born prior to their marriage.

204    The Yinhawangka Gobawarrah applicant further submitted that Dr Sackett’s GMY and Jurruru overlap report should be given limited weight due to Dr Sackett’s “failure” to consider the 1999 Haydock materials, which it contends “calls into question the comprehensiveness of Dr Sackett’s report, his familiarity with the Overlap Area and the accuracy of his conclusions”. In particular, it submitted that Dr Sackett’s conclusions about Mabel Tommy and her influence over the GMY people must be read critically. For example, Dr Sackett concludes in his overlap report that GMY claimants accept that all the places named and mentioned by Mabel Tommy in the recordings “ipso facto must be in Yinhawangka country”.

Historical anthropological and ethnographic reports

205    There was limited material in this category. All parties accepted the paucity of historical ethnographic materials relating to this particular part of Western Australia.

Alfred Radcliffe-Brown

206    Alfred Radcliffe-Brown was an English social anthropologist who conducted field work with Aboriginal people in Australia with the assistance of Daisy Bates. During a journey through Western Australia in 1911, Mr Radcliffe-Brown collected information and published it in an article called “Three Tribes of Western Australia” in The Journal of the Royal Anthropological Institute of Great Britain and Ireland (Jan-June, 1913), parts of which are in evidence.

Dr Palmer’s 1979 West Angelas Project report

207    Dr Palmer prepared an anthropological report in December 1979 for the West Angelas mining project detailing the “likely impact of development on sites and places important to Aboriginal people living in the Pilbara region”, extracts of which are in evidence. This is the “fourth and final report” in a series that Dr Palmer prepared, concerned with anthropological matters rather than archaeological, and thereby focuses on “research into the relationship between people and the country in which they, or their forbears had (and continue to have) certain rights and obligations”.

Professor Tonkinson’s 1985 ethnographic research

208    Professor Robert Tonkinson conducted an “archaeological and ethnographic survey” for the Centre for Prehistory at the University of Western Australia in February 1985 in the Paraburdoo area. It was commissioned by Hamersley Iron Pty Ltd in connection with its planned extensions of the mining operations. Paraburdoo falls within the Yinhawangka determination area, to the north-east of the overlap area.

209    Professor Tonkinson explained the plan of the survey at p 92 of the report, which included:

1.    a check on available anthropological literature to ascertain the identity of the ‘tribal’ groups in the Paraburdoo and surrounding areas and any additional information of relevance to Aboriginal occupation of the area;

2.    ascertaining the likely location of the largest number of Aborigines with interest in the area concerned. Information from several different sources correctly identified the town of Onslow;

3.    a visit to Onslow with several interrelated goals in mind: … using Aboriginal sources, to identify all Aborigine who can claim an association with, and interests in, the Paraburdoo area and to interview as many of them as possible; to ascertain the bases for the claimed associations; to list as many sites in the survey area as possible, and collect relevant cultural information …

4.    with the assistance of the Aboriginal guides, to carry out the survey at Paraburdoo and identify all known sites within and surrounding the lease areas to be affected by the extension of mining activities.

210    His main informant was Stanley Dellaport, whom Professor Tonkinson described as appearing “to have the fullest knowledge of the Paraburdoo area among the Aborigines claiming it as their homeland” and who “members of the Onslow community” agreed was the most appropriate guide.

Experts’ conference and joint report

211    A conference of experts was convened by Judicial Registrar McGregor in Perth on 2 and 3 December 2019 pursuant to Court orders made on 29 August 2019. Dr Palmer and Dr McGrath attended and the experts each expressed opinions attributed to them as set out in the joint experts’ report of the conference in evidence. The experts agreed with a number of propositions, many of which form the basis of the parties’ agreed facts. Concurrent expert evidence was given by both experts shortly after, on the 5 and 6 December 2019.

General approach to the expert material

212    In contrast to the early ethnographic material, there is a considerable body of recent expert opinion about the overlap area, and about the surrounding Jurruru and Yinhawangka country. I have taken the parties’ submissions about the relative strengths and weaknesses of that material into account, including the fact that only Dr McGrath and Dr Palmer gave oral evidence. No criticisms were made of the expertise of any of the modern anthropologists, although there were criticisms of their methodology, or the scope of the materials on which they relied. Where relevant, I consider those maters below. However, both Dr Kenny and Dr Sackett are respected experts in their field, and I have found their reports helpful and reliable, in part because they each have different emphasis and focus. I have also found Professor Tonkinson’s work of assistance.

213    Regrettably, Dr Vachon’s considerable substantive work was not able to be taken into account. The funding and other decisions made about this meant a great deal of time, and financial and human resources were consumed without the intended objective of a completed admissible expert report being achieved. As this case and the Purnululu decision have demonstrated, it is important that Indigenous parties with claims which cannot be described as frivolous or vexatious have access to funded representation and if necessary, expert assistance, so that the administration of the Native Title Act operates fairly and equitably amongst different Indigenous groups. Under the Act, setting aside the flexibilities afforded to negotiated outcomes, the Court is the sole arbiter of the recognition of native title in any contested circumstance, recalling a determination of native title operates in rem, rather than only against the parties. The Court relies on the parties to provide all relevant materials, and therefore relies also on representative bodies performing their functions and discharging their responsibilities under the Act, so that the Court has – through the funded parties – the materials required to perform its function. Where negotiation has failed, it is not always wise for representative bodies to “pick a winner” in contested litigation and only fund that party. As the Court’s conclusions in both Purnululu, in other cases such as Murray on behalf of the Yilka Native Title Claim Group v State of Western Australia (No 5) [2016] FCA 752, and in this case demonstrate, in an adversarial context, answers may not be straightforward or one-sided.

SOME GENERAL FINDINGS

214    In this section I set out my findings on a number of more general matters which affect the resolution of the parties’ competing submissions on the separate question.

My approach to the witness evidence, the preservation evidence and the lay evidence drawn from earlier sources

215    I accept all witnesses who gave lay evidence on country in 2019 did their very best to assist the Court, and to explain their connection to country in the overlap area. Without wishing to be disrespectful, the view I formed during the on-country hearing was nevertheless that contemporary knowledge about the overlap area was not deep, nor was it sourced in having spent a lot of time at the sites people spoke about, with the exception of Jabaguru. That impression related to witnesses for both applicants. Some knowledge appeared to be more derived from maps than first-hand understanding of sites or geographical features, borne of regular time spent across the overlap area over longer periods of time. Some knowledge could only be expressed at the most general of levels, and witnesses were quite frank in admitting they did not know much more than the general – Ivan Smirke’s evidence had this feature on several occasions. Some of the knowledge appeared to have been learned from other sources, such as the Haydock materials. Some witnesses were given to broad generalisations which seemed to have little basis in their direct experience. My impression in this respect is in contrast to the content of the preservation evidence, and also in contrast to what was said by Mabel Tommy, Jambu Giggles and Muyit Smith on the Haydock tapes.

216    This feature of the evidence on both sides means the evidence with the higher probative value about connection to the overlap area lies in first, the preservation evidence, and second in secondary sources such as the Haydock materials. It resides in the generation above the present lay witnesses. Those people are of a generation where they knew their country first-hand, spent a lot of time on it, had lived experiences with their elders and were closer to the inheritance of the oral traditions. I say that without questioning the commitment of the present generation of native title claimants to their country, its recognition, preservation and protection.

217    In this section, I outline my approach to the evidence drawn from earlier sources, namely the Jurruru preservation evidence, the GMY preservation evidence, and the 1999 Haydock materials.

218    Impressions formed from a witness’ written word may be different to those formed once a witness has also been heard and seen. The Full Court in Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; 235 FCR 464 noted the importance of observing witnesses at [193]:

Sometimes, not until further explored, either in chief or cross-examination, or in reply, will the significance and weight to be accorded to a witness’s evidence become clearer. If the primary judge has been engaged in such a process, the primary judge obviously has an advantage over the appeal judge, who has only the transcript of what was said in the Court below from which to assess the quality and significance of the evidence and so the weight to be accorded it. All sorts of impressions may be drawn from a witness’ written word, when different impressions will almost inevitably be drawn from also seeing and hearing the witness talk about the matters the subject of their written word. That is why the trial process is so important and a trial judge’s task so exacting.

219    In this matter, the Court had no opportunity to observe the witnesses whose evidence it has found to be most reliable and informative, and the closest in time to accounts which reflect the position at or shortly after effective sovereignty. The video tapes and transcript (both of the preservation evidence and of Mabel Tommy, Jambu Giggle and Muyit Smith, as well as the affidavit material of some older generation witnesses) provide a reasonable, but not commensurate, substitute. While there was an opportunity for the preservation witnesses to be cross-examined, that was not undertaken in the precise context of the arguments as put on the separate question. Further, as I note elsewhere, the evidence of Toby Smirke, Peggy Smirke and David Smirke was not subject to cross-examination from the perspective of the interests of the GMY applicant, or the Yinhawangka Gobawarrah applicant. I also accept that there was no opportunity for Mabel Tommy, Jambu Giggles and Muyit Smith to be questioned, and this must be weighed in the assessment of what is said in the Haydock materials. The same observation applies to the older native title application affidavit deponents. On the other hand however, the three elders, and Mrs Tommy in particular, were giving their accounts in what might be seen as a less artificial setting, not directed by the structure of a particular native title claim.

220    The situation may be less than ideal, but the Court must do its best with the evidence it has, taking account of all the circumstances which may affect the reliability and weight of the variety of evidentiary sources before it.

Toby Smirke

221    Toby Smirke is the most senior living Jurruru witness. He was unable to give evidence in the separate question proceeding, but the Court has his witness statement, the transcript of his preservation evidence, and the video tapes of it. His evidence relates to sites across the Jurruru #1 application area; that is, it does not differentiate between the Jurruru Part A determination area and the overlap area.

222    The Jurruru applicant submitted that Toby Smirke was the “main witness” for the Jurruru claim group, and that he is “the most knowledgeable about Jurruru sites and Jurruru country”. It contended that he had learned about the boundaries of Jurruru country from his father, Jimmy Smirke, and from other senior men including Yinhawangka men.

223    I note that Toby Smirke was born in 1944, making him almost 20 years younger than Mabel Tommy.

224    The Yinhawangka Gobawarrah applicant did not make submissions about the reliability of Toby Smirke’s evidence, but contended he did not give evidence at locations in the overlap area specifically. The Jurruru applicant submitted that:

one location near the Beasley Pinnacles which is in the – where he gave the evidence was in the overlap area just – it’s about 800 metres within the overlap area near the western boundary of it, contrary to what’s said in our learned friend’s written opening. But consistently with our case that preservation evidence did not differentiate between the overlap area and what’s now the Jurruru determination area, so the preservation evidence was presented simply in relation to what was said to be the whole of Jurruru country.

225    It is clear from both his written evidence and the video tape of his evidence given at various sites that Toby Smirke knows the overlap area well indeed, and is speaking from his direct knowledge and lived experience in working in and around it, and being shown many different sites and places by his father Jimmy Smirke, and other elders – not necessarily Jurruru identifying people. His identification of boundaries to Jurruru country proceeded largely by reference to geographical features. At [80]-[86] of his statement he described the boundaries in this way:

Jurruru country starts from Hardey Junction (the most northerly point of the Jurruru claim) and then runs south following the top of the William Range (Nyamari [#77 D3]. Nyamari is a long range, like a train, that you can see from Kooline Station. Jurruru is responsible for the whole area.

The Thudgari People’s country is on the other side, on the south, while Jurruru talks for the northern side – that’s because on the northern side the water flows into the Ashburton, and on the southern side it flows into Glen Florrie Station, into the Wannery Creek. The Thudgari People have a pastoral lease called Ullawarra Station which comes into Jurruru country a bit. But that bit is still Jurruru country.

Then the boundary line heads south east to the Tabletop Hill [#13 Blue Billy Creek Unnamed Tabletop D4] and then down to Blue Billy Bore [D4]. From there it heads to the start of Gurdubaya [#44 F6] (the Godfrey Range) taking in the Irregully Creek and then heads up to the Kenneth Range and goes along the top of the Kenneth Range and across to Gunari [#41 I5] (Mt Boggola). Gunari [#41 I5] is Mount Boggolla and it's near the boundary with Ngarla.

At around the beginning of the western ends of the Godfrey and Kenneth Ranges, Thudgari country stops and Wadjarri country starts. Wadjarri People speak for the other side of the ranges and Jurruru speak for the northern side because the water runs off into the Ashburton River.

Somewhere around the south east end of the Godfrey Range [F6-G6] – that’s where Wadjarri country stops and Ngarla country starts. Ngarla and Jurruru boundary goes from there to Dalarang Pool [#23 I5] – Pingandy Creek [H6-I6] is Ngarla.

The boundary line then goes north west through Mininer Station, and across close to Ngurlunana [#75 I4] (Mt Elephant). Ngurlunana marks the boundary with Innawonga. Then the boundary line goes north west to a tabletop that is in the area of big open mulga flat [#21 G3]. The table top is about 3 or 4 kilometers north east of Charcoal [#20 G3]

Then it goes north west right to 29 bore, and continues north west to Barol [#8 F2] and on to Jila Spring [#55 F2]. Here it heads across the top of the dolomite range and to Walumuga Creek to Walumuga [#88 D1], which is an old camp, and from there to Hardey Junction [C1]. On the other side of the boundary along this bit is first Kurama country, and then that changes to Pinikura country as it goes west back to Hardey Junction.

226    Having watched the videos of his evidence, it is clear he was highly familiar with the geographical features of the area, and he was clear about which areas were inside Jurruru country and which were not. I accept Toby Smirke was faithfully relating what he understood he had been taught by his elders about Jurruru country and its extent, and that he knew the country he was describing from his own direct and lived experience over many decades.

227    One feature of his evidence which must be considered is that Toby Smirke was not cross-examined by anyone representing the GMY or Yinhawangka Gobawarrah claimants. His preservation evidence occurred in 2013, and was taken in the Jurruru applications. The only cross-examination was by the State, and it was brief and relatively supportive. It certainly did not attempt to put the case articulated by the GMY or Yinhawangka Gobawarrah claimants, which the State has never accepted. Thus, it would not be appropriate in my opinion to approach Mr Smirke’s evidence as if it had been tested on the matters now in issue in the separate question, and by a true contradictor. A contrast can be drawn, for example, with the evidence of David Cox in 2016, to which I refer below.

David Cox

228    David Cox gave preservation evidence in the GMY and the Yinhawangka Part A and Part B proceedings. The Jurruru applicant relies on David Cox’s evidence about the boundaries of Jurruru country. It contended that Mr Cox “is a very senior Yinhawangka elder, and a Law boss”, citing Donald Limerick’s evidence that Mr Cox is a “boss” who goes to Onslow to do Law.

229    The Yinhawangka Gobawarrah applicant contended that Mr Cox’s evidence is influenced by his own personal “animosity” toward Mabel Tommy and Jambu Giggles and a “general lack of interest in their knowledge and history” in the overlap area. It submitted that his animosity to Mrs Tommy and Jambu Giggles means that little weight can be given to his evidence.

230    Referring to David Cox by his Aboriginal name Barndu, the Yinhawangka Gobawarrah applicant submitted (in closing submissions at [88]-[89]):

In terms of the Overlap Area itself, Barndu feigns a lack of interest, stating that the country around Gobawarrah “not important for me. I wouldn’t go there”. It is submitted that if he was so disinterested he would not have sat in Court every day during the hearing in July 2019 nor would he call out at YG witnesses. He admitted he has a lack of knowledge of and interest in the Overlap Area, YG ancestors and their connection to country. He admitted that a lack of knowledge means that a person should not speak for that country yet did so regardless about the Overlap Area. It is submitted that his animosity to Mrs Tommy and Jambu Giggles means that little weight can be given to his evidence. …

It is submitted that Barndu, as a senior Yinhawangka man, has taken a personal position as to who exercises rights in Yinhawangka country. It seems because he did not consider the Gobawarrah area important and did not want to go there it was not important to any other Yinhawangka people.

231    David Cox was asked about Gobawarrah country in his GMY preservation evidence:

MR CUMMINS: Okay. Anyway, just going back to that question about the – the Gobawarrah and whose country it is, we've heard that that country from where the Gobawarrah junction is with the Seven Mile Creek – you know where I'm talking about there?

DAVID COX: Yes.

MR CUMMINS: And then the Gobawarrah junction with the Angelo River – it was called the Inddibiddi but you – you say that's different, but with the Angelo River, that section in between is – is Yinhawangka country and we've heard that old – old people, like Mabel Tommy, Bimba Maggie – we've heard that people like Jambu Giggles, Muyit, Inga – the mother of Stanley Dellaport - - -

DAVID COX: Mm.

MR CUMMINS: - - - and her sister, Jessie, Dinah Bimbirr, Nyimili Tommy – that they all said that that was – that that was Yinhawangka country, all along that river. So there’s a lot of old people there with a lot of knowledge; would you agree? That maybe they’re right? Maybe they got that right?

DAVID COX: No. I think they got that wrong.

MR CUMMINS: Okay. The - - -

DAVID COX: I wouldn’t go – I wouldn’t go there.

MR CUMMINS: You wouldn’t go there, no.

DAVID COX: No.

MR CUMMINS: No.

DAVID COX: I stop at Gobawarrah.

MR CUMMINS: Yes. Well, that’s not really your area, is it, there? Even - - -

DAVID COX: No, I wouldn’t go there.

MR CUMMINS: Even - - -

DAVID COX: I born here, in Rocklea, you know, country.

MR CUMMINS: Yes.

DAVID COX: I stop here.

MR CUMMINS: Yes.

DAVID COX: I wouldn't go there.

MR CUMMINS: That’s not all that – not really all that important to you, that country down there, is it?

DAVID COX: No - - -

MR CUMMINS: You've got other country - - -

DAVID COX: - - - not important to me.

MR CUMMINS: No.

DAVID COX: Might be for them; not me.

MR CUMMINS: Might be important for them but not for you.

DAVID COX: Yes.

232    He said he only speaks for his own country in Rocklea station:

DAVID COX: Look, you can’t go and talk for different people’s country.

MR CUMMINS: Yes.

DAVID COX: I don’t go and talk about his country.

MR CUMMINS: Yes.

DAVID COX: No. I talk about my own.

MR CUMMINS: Yes. Yes. So is it right – well, is it fair to say that, if you don’t have the knowledge of country and the connection to that country, you shouldn't speak for that country?

DAVID COX: True.

MR CUMMINS: Yes.

DAVID COX: Yes.

MR CUMMINS: And so – so – and I think you’ve talked about areas that you – you know, you speak for.

DAVID COX: Mm.

MR CUMMINS: Like – especially like - - -

DAVID COX: Mm.

MR CUMMINS: Where? Where would you say you speak for mainly?

DAVID COX: Oh, I speak for this country; my country. Where I born.

MR CUMMINS: Yes.

DAVID COX: And where I grew up. I speak for - - -

MR CUMMINS: Rocklea.

DAVID COX: Yes, not – not anywhere outside, after that – you know, Guruma side?

233    He agreed that his knowledge of country was better in the Yinhawangka Part A area, rather than the Part B area. That was because, he explained, of his connection to the Rocklea station area, which is located in the Part A area:

MR CUMMINS: Heading – heading towards the Ashburton River.

DAVID COX: Yes. Well, yes, I got a little bit of knowledge for there.

MR CUMMINS: A little bit of knowledge, yes.

DAVID COX: Yes.

MR CUMMINS: But not – not nearly as much as your knowledge up round Rocklea.

DAVID COX: No.

MR CUMMINS: Right. Because - - -

DAVID COX: I born in Rocklea, see? I grew up there.

234    Mr Cox continued to emphasise the restrictions on what he knew, and what he could talk about in areas that fell within the Yinhawangka Part B area. It was put to him that he did not have many places near the Gobawarrah area (that is, the Ashburton River) which were important to him. He said:

MR CUMMINS: So you can see here you’ve got a lot of places that are important that you’ve mentioned but, down here, not so much.

DAVID COX: No. I - - -

MR CUMMINS: And that's fine - - -

DAVID COX: Yes, but I don’t talk about that, because it’s not mine.

MR CUMMINS: That’s not your area - - -

DAVID COX: Yes.

MR CUMMINS: - - - down there.

DAVID COX: Yes.

MR CUMMINS: Okay.

DAVID COX: See, I don’t talk about somebody else’s country.

MR CUMMINS: But, just to be clear, I’m – I’m talking about - - -

DAVID COX: Yes.

MR CUMMINS: - - - the Yinhawangka claim area.

DAVID COX: Yes. Yes, I’ll talk about the Yinhawangka – inside.

MR CUMMINS: Yes.

DAVID COX: But not on that side.

235    He also gave evidence that he did not know about the West Angelas side of the Yinhawangka determination. His evidence was Yinhawangka country did not go that far and that he considered that Ngarla country. He also denied that Dalarang and Mt Elephant were in Yinhawangka country, despite both these places falling within the boundaries of the Yinhawangka determination area.

236    Quite significantly in my opinion, his evidence was that it was “wrong” that the site of Ngulunganga (Mt Elephant) is now identified as being in the Yinhawangka Part B determination area, rather than as Jurruru country:

MR CUMMINS: Okay. Yes. Alright. So have you talked to other Yinhawangka people about - - -

DAVID COX: What?

MR CUMMINS: - - - Mount Elephant? About – about Mount Elephant, whether it’s in Jurruru country or – or not?

DAVID COX: Yes. But most of the Yinhawangka don’t.

MR CUMMINS: And what do most of the Yinhawangka think - - -

DAVID COX: Well - - -

MR CUMMINS: - - - about where it is, which country it’s in?

DAVID COX: They know it – they think Jurruru country. Specially the older person like old Nicholas Cooke, but he’s not here.

237    Then, after being shown a map, with the location of Ngulunganga pointed out to him, Mr Cox gave the following evidence:

DAVID COX: Yes.

MR CUMMINS: Alright? And it shows Ngurlunana in the Yinhawangka Part B claim.

DAVID COX: No. That’s wrong. I don’t know who done that.

MR CUMMINS: When you say it’s wrong, do you mean that it – the map is wrong or do you mean that it’s - - -

DAVID COX: Yes, the – I think that map is wrong.

MR CUMMINS: Do you?

DAVID COX: Yes. Yes. Wonder who done that.

MR CUMMINS: Okay. So you’re sure - - -

DAVID COX: I - - -

MR CUMMINS: - - - that Mount Elephant is in the - - -

DAVID COX: Yes, it goes right alongside - - -

MR CUMMINS: - - - Jurruru - - -

DAVID COX: - - - of the Ashburton River. Not far from Manduarra.

MR CUMMINS: So it – if the – if Mount Elephant happens to be – if it is inside the Yinhawangka Part B claim area - - -

DAVID COX: No.

MR CUMMINS: - - - then - - -

DAVID COX: No.

MR CUMMINS: - - - then do you think that the Yinhawangka Part B claim area needs to be changed? Needs to be changed so that it’s not inside it?

DAVID COX: Yes. Yes.

238    The view expressed by Mr Cox in this evidence is consistent with what he told Dr Kenny in 2011, not long after the 2010 boundary agreement. At [14] of her 2011 overlap report, Dr Kenny records that Mr Cox:

maintains that Mt Elephant is Jurruru, as well as Mt Boggola and said that ‘We were told by the old people where country is. The old people told us. At that meeting [referred to by Ivan Smirke above] we agreed were boundaries are, it goes through that hill and Yinhawangka lies north’ and ‘What Toby says is true, Julie’s mother [Mabel Tommy] did not know’.

(Footnotes omitted.)

239    He was also asked about his relationship with Mabel Tommy. He said he did not mix with Mabel Tommy much but that he “grew up with old Muyit [Smith]”, and that Mabel Tommy “grew up somewhere else down that end. At Turee Creek somewhere”. He said he “had a lot of argument” with Mabel Tommy at the Bellary community during the 1990s. He had been shown the 1999 Haydock materials by a lawyer but he “didn’t want to hear it … Because it’s not true”.

240    Mr Cox agreed in cross-examination that Jiwarlangu, Kurta Kurta’s son, was “the top man” for Paraburdoo and Turee Creek:

MR CUMMINS: - - - how well – just tell me what did you know about him? How much – how well did you know him? Or did you know him?

DAVID COX: Yes, I knew him when – I seen him when he was a kid – when I was a kid.

MR CUMMINS: How old were – would he have been, do you think?

DAVID COX: Oh, gee, I - - -

MR CUMMINS: You know?

DAVID COX: No.

MR CUMMINS: Okay. Well, we’ve heard – we’ve heard that he was the – was the top man for the Thuriri, or the Turee Creek. He spoke for that country. He was the top man for that country, for the Thuree Creek – Turee Creek. What would - - -

DAVID COX: Turee?

MR CUMMINS: What would you say about that? That’s possible?

DAVID COX: Yes. Yes, but he wasn't - - -

MR CUMMINS: Is he - - -

DAVID COX: He was top man here.

MR CUMMINS: Yes. He was the top man.

DAVID COX: He - - -

MR CUMMINS: He was the top - - -

DAVID COX: He - - -

MR CUMMINS: - - - top lawman and - - -

DAVID COX: All across yes.

MR CUMMINS: Yes?

DAVID COX: Yes.

MR CUMMINS: So – and he had responsibilities to look after the Thuree Creek – Turee Creek?

DAVID COX: Oh, yes.

MR CUMMINS: Yes?

DAVID COX: Yes.