FEDERAL COURT OF AUSTRALIA

Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496

ORDERS

THE COURT DECLARES THAT:

1.    Resolutions 5 and 6 passed by the Nyiyaparli common law holders at the meeting held on 2 December 2020 were not decisions made under Nyiyaparli traditional law and custom and are not effective to refuse recognition of the applicants as Nyiyaparli people.

THE COURT ORDERS THAT:

1.    The application otherwise be dismissed.

2.    The respondent pay 75% of the applicants’ costs of the proceeding, to be fixed by way of an agreed lump sum.

3.    If the parties cannot agree on an appropriate lump sum for the purposes of Order 2, the matter be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicants, Steven and Brendan Dhu, seek orders and declarations in relation to their membership of the Nyiyaparli People, as that group is defined in the determination of native title made by this Court in Stock on behalf of the Nyiyaparli People v State of Western Australia (No 5) [2018] FCA 1453 (Nyiyaparli determination). Their membership of the Nyiyaparli People is also said to have consequences for their eligibility to be entered on to the Register kept by the respondent Karlka Nyiyaparli Aboriginal Corporation RNTBC ICN 3649, and to become members of Karlka.

2    Karlka is the prescribed body corporate determined under s 56(2) of the Native Title Act 1993 (Cth) to hold the native title of the Nyiyaparli People on trust for the common law holders of that title. After a resolution of the common law holders in December 2020, the applicants were refused recognition as Nyiyaparli People, and refused membership of Karlka.

3    The applicants sought two alternative kinds of orders. First, declaratory relief about their status as members of the Nyiyaparli People. Second, orders requiring Karlka to add the details of the applicants to the Register of Nyiyaparli People under rule 5 of Karlka’s Rule Book, and a declaration that the applicants are eligible for membership of Karlka under rule 6 of the Rule Book.

4    The applicants’ counsel made this point in final oral submissions:

I think one of the difficulties this case throws up is that if – say, if the court were – if there were to be a finding that they were not Nyiyaparli people, or that the decision of the common law holders was to be accepted and that it – that those decisions established that they are not identified as Nyiyaparli people, then, really, Steven and Brendan Dhu and others, sort of, find themselves stranded, in a sense. They can’t be identified as Native Title holders through Banjima, and they wouldn’t be able to be identified as Native Title holders through Nyiyaparli ..... is no answer, in my submission, to say, “Well, go to Nganluma”, for the reasons I have just given. I mean, that’s no answer, to say that they’d be stranded, because – well, really, what you have is a situation where these – Steven and Brendan and their father, they have really, in a sense, made consistent claim for many, many, many years.

5    The substance of this submission has force, and it will be apparent from the reasons below that while the applicants are not entitled to the specific relief they seek, the Court considers it need not remain the case that they are “stranded”, and unable to take their place as native title holders through a line of descent from Ijiyangu, a named apical ancestor for the Nyiyaparli determination. The applicants are entitled to declaratory relief to remove any actual or perceived impediment to their future recognition as Nyiyaparli People, by making it clear the 2020 resolutions were ineffective.

AGREED FACTUAL BACKGROUND

6    In this section, I set out my findings on the factual background, which is not in dispute between the parties. Contested factual issues are dealt with separately later in my reasons.

7    The parties filed an agreed statement of facts, which was admissible pursuant to s 191 of the Evidence Act 1995 (Cth). In addition, the parties relied on a number of affidavits, and documents.

8    The applicants relied on the affidavits of:

(a)    Steven Dhu, affirmed on 16 April 2020;

(b)    Christina Stone, affirmed on 16 February 2021;

(c)    Alec McKay, affirmed 22 February 2021;

(d)    Kathleen Hicks, affirmed on 22 February 2021;

(e)    Kevin Banks-Smith, affirmed on 24 February 2021;

(f)    Colin Peterson, affirmed 5 May 2021;

(g)    Steven Dhu, affirmed 12 May 2021; and

(h)    Brendan Dhu, affirmed 14 June 2021.

9    Paragraph [33] of Ms Stone’s affidavit was not read, by agreement between the parties.

10    The respondent relied on the affidavits of:

(a)    Nicholas Preece, affirmed 18 May 2020;

(b)    Nicholas Preece, affirmed 29 January 2021;

(c)    David Stock, affirmed 14 May 2021;

(d)    Lindsay Yuline, affirmed 14 May 2021;

(e)    Leonard Stream, affirmed 21 May 2021; and

(f)    Keith Hall, affirmed 11 June 2021.

11    The respondent did not read paragraphs [17] and [20] of Mr Hall’s affidavit. Paragraphs [15], [26] and [27] were read but the respondent conceded they should be admissible only as statements of Mr Hall’s opinion and belief. In addition, the Court upheld an objection to the final two sentences of [44] of Mr Hall’s affidavit.

12    A document produced in discovery, being a table said to summarise certain distributions made to the applicants from a trust was the subjection of objection by the applicants. It was marked for identification but ultimately not tendered, and instead treated as part of Karlka’s submissions.

A brief chronology

13    It is agreed that the applicants are descended from an Aboriginal woman called Ijiyangu through their father as follows:

(a)    Their father’s father (maarli) was a man called Ned Dhu;

(b)    Ned’s mother (the applicants’ great-grandmother) was Susan Swan;

(c)    Susan Swan was Ijiyangu’s daughter.

Thus, Ijiyangu is the applicants’ great-great grandmother.

14    On 30 September 1998, two claims were filed on behalf of the Banjima People: the Innawonga Bunjima claim (IB claim) (WAD 6096 of 1998) and the Martidja Banjima/Martu Idja Banjima claim (MIB claim) (WAD 6278 of 1998). Around the same time, on 29 September 1998, the first application for a determination of native title in favour of the Nyiyaparli People (WAD 6280 of 1998) was also filed. The claims all concerned land in the central Pilbara region.

15    Around 1999 or 2000, the applicants joined the MIB claim group, relying on their connection to an apical ancestor named Ijiyangu. The English name she has been given was Daisy. In October 2010, a claim purporting to be on behalf of all Banjima people was filed. There was also a second MIB claim filed. The hearing conducted by Barker J, which ultimately resulted in the decision in Banjima People v State of Western Australia (No 2) [2013] FCA 868; 305 ALR 1, concerned all three claims. Before Barker J, the IB claimants and the MIB claimants initially filed different contentions, but ultimately the IB and MIB applications were combined: see Banjima (No 2) at [18].

16    On 28 August 2013, the Court gave judgment in Banjima (No 2). The Court found the claimants were entitled to a determination of native title under the Native Title Act and invited the claimants to file a minute of proposed determination. On 12 March 2014, the Court made the Banjima determination: Banjima People v State of Western Australia (No 3) [2014] FCA 201.

17    The decision in Banjima (No 2) is discussed further below, but for the purposes of this chronology what must be highlighted is the finding of Barker J that there was insufficient evidence for the Court to conclude the nominated apical ancestor Ijiyangu was a Banjima woman. His Honour found there was evidence which “pointed in the direction” of her being Nyiyaparli. Accordingly, Ijiyangu was not included as an apical ancestor on the Banjima determination. Both before and after the Banjima (No 2) decision, there was a series of disputes about the status of descendants of Ijiyangu as Banjima People and the entitlements of those descendants to monies flowing from the holding of Banjima native title. I describe these below.

18    On 26 September 2018, the Court made the Nyiyaparli determination by consent, on the basis of the 1998 application. Ijiyangu was listed as an apical ancestor on this determination. Nyiyaparli country is to the east of Banjima country. Palyku country is to the north. A map tendered in evidence showing these three determinations, and some of the key locations to which the evidence referred, is Annexure A to these reasons.

19    On 7 and 14 August 2019, the applicants and their father applied for membership of Karlka.

20    At a meeting held on 29 October 2019, the Karlka directors decided not to accept the applicants as members of Karlka. The directors did not accept that each of the applicants “identify as a Nyiyaparli person and are recognised by others as a Nyiyaparli person”, being one of the requirements in the Karlka Rule Book. This decision was reaffirmed at a further directors’ meeting in December 2019. In February 2020, the directors decided to refer the question of the applicants’ recognition as Nyiyaparli People to a meeting of the Nyiyaparli common law holders.

21    On 17 April 2020, the applicants and their father commenced this proceeding. The applicants’ father, Mr H Dhu, passed away in June 2020 and was removed as an applicant by order of the Court dated 15 June 2020.

22    On 2 December 2020, a Nyiyaparli native title holders’ meeting was held in Karratha (December 2020 meeting). A series of resolutions were passed, the effect of which was to refuse to recognise the applicants as Nyiyaparli People. That position was maintained at trial by Karlka, on its own behalf and on behalf of the Nyiyaparli People.

The applicants’ ancestor and her country

23    The applicants say Ijiyangu and her children were from Mulga Downs station. Their traditional country ran from Munjina to Martuyitha (Fortescue Marsh). Steven Dhu deposed that his maarli, Ned, told him that this was a shared area of country for Banjima and Nyiyaparli people. That evidence was not accepted by Karlka, and there was cross-examination of Steven and Brendan Dhu about where they placed Ijiyangu’s country, and where they placed their own country. However, and curiously given it is the RNTBC for the Nyiyaparli People, Karlka made no positive submissions about where Ijiyangu’s country was, if it was not where the applicants placed it.

24    It is an agreed fact that there are 7 descendants of Ijiyangu who are members of Karlka. They are all descended from one Peter Derschaw, who in turn was the grandson of Ivy Swan, the sister of Susan Swan. The parties each relied on this fact in different ways.

The Banjima determination and the exclusion of Ijiyangu

25    In evidence that was not challenged, Steven Dhu explained that, prior to the Banjima (No 2) decision, there was a proposal that in order to reflect the two underlying claims in Banjima (MIB and IB), two different trust structures should be created. Steven Dhu deposed:

Graham O’Dell, a lawyer at YMAC, told me it was proposed that all the descendants of Ijiyangu (Daisy) would be members of the Number 2 Trust. I disagreed with this proposal. At that stage I thought that all members of my family would get native title and that once this happened the MIB and IBN claim groups would be reflected in the trust structure. I maintained that my father, Brendan and I were connected to the MIB claim area through Ijiyangu (Daisy). This all went out the window when the Banjima decision came down.

26    As I understood Steven Dhu’s written and oral evidence, the underlying basis for his disagreement, and for the applicants initially joining the MIB claim, and then objecting to their proposed membership of the B2 trust, all stemmed from their understanding of where their country was located within the claim areas (that is, the country to which Ijiyangu was connected). In his first affidavit (at [34]) Steven Dhu identified this country as being the “Fortescue valley area and includes Karijini national park and those parts of Mulga Downs and Hooley stations in the Banjima determination area”. This area was covered by the MIB claim, which is why (he deposed) he and his brother and father joined that claim. He deposed:

When we joined the MIB claim I did not know whether Ijiyangu (Daisy) was included as an apical ancestor for the MIB claim group description. I later learned that she was not and that she was included as an apical ancestor for the IBN claim group description. Ijiyangu’s exclusion from the Banjima Determination created an obstacle for her descendants who identified as Banjima.

27    In Banjima (No 2) Ijiyangu is referred to as “Daisy Yijiyangu”. She was put forward by the claimants as an apical ancestor. Ijiyangu was not the only apical ancestor about whom there was debate in Banjima (No 2). However, Barker J acknowledged the challenges for his Honour’s fact finding at [572]:

Daisy Yijiyangu: Daisy produces a much more difficult case than either Sam Coffin or Whitehead, as there is not unanimity among the Aboriginal witnesses that she was Banjima, the archival external and independent data suggests she was not Banjima, and the anthropologists express doubt as to her Banjima identity.

28    At [573], Barker J found:

Not all of the Aboriginal evidence is supportive of the claim that Daisy was Banjima, although there is some powerful support within sections of the claim group for accepting that Daisy was a Banjima woman. Charles Smith, for example, gave evidence that his mother had told him about old Banjima people that she knew when she was young. He said, “[m]y mum told me that Yijiyangu (Daisy) was a Banjima woman from Mulga Downs”. It is important to note in this regard that Mr Smith’s mother, Mrs A Smith, is the oldest claimant in the Banjima native title claim group and has a deep genealogical knowledge. Similarly, Joyce Injie, an 84 year old Innawonga woman gave evidence that she knew Billy Swan (Daisy’s son) and that he was a Banjima man.

29    Consistently with what his Honour says in this paragraph, elsewhere in his Honour’s reasons he places considerable weight on the evidence of Mrs A Smith and Joyce Injie. At [574]-[575], Barker J describes the evidence of John Todd, whom he describes as a direct descendant of Ijiyangu and whose grandmother he identifies as Susie, the daughter of Ijiyangu. This would appear to be the same “Susie” from whom the applicants are descended and who in the evidence in this proceeding was identified as Susan Swan. However there was no evidence before the Court in this proceeding about the applicants’ connection to John Todd.

30    In this context, Barker J referred to the applicants’ grandfather, at [576]:

Another old person that John Todd spent time with as a child and as a young adult was Ned Dhu. Ned Dhu was the oldest child of Susie Dhu (nee Swan) and he was born and worked on Mulga Downs Station. Mr Todd gave evidence that Uncle Ned had a lot of knowledge of Banjima country. Uncle Ned learnt a lot from Ivy, another of Daisy’s children, when he was living at Derschaw’s Outcamp on Mulga Downs Station. Ned passed on knowledge about Banjima country to Mr Todd. He camped in the riverbeds on Mulga Downs and Cowra with Ned.

31    The “Ivy” in this passage would appear to be Ivy Swan, the grandmother of Peter Derschaw and the sister of Susan Swan: see [24] above.

32    There was also expert evidence about Ijiyangu before Barker J, to which his Honour refers. This is part of the anthropological report of Dr Palmer, recorded at [578]:

Dr Palmer noted that Daisy has many descendants that include members of descendants of the Swan, Dhu and Derschaw families. He received, he stated at [791], some “limited information” about Daisy from the Dhu and Derschaw families. He noted that some thought she was generally associated with Mulga Downs and that her son, Billy, was an important ritual leader there. Bill Dhu told him that he could remember his mother’s mother, Daisy, from when he was a young boy and that she spoke the Banjima language and used to travel from Mulga Downs to Roy Hill Station. She died at Roy Hill during one of those visits. He was also told that Daisy’s mother may have identified as Nyiyabarli, but details were not known by those with whom he spoke.

33    At [579], Barker J recorded this statement from Dr Palmer, which is of some significance in the present context:

Dr Palmer noted that members of the Dhu and Derschaw families were “adamant” as to the Banjima identity of Daisy, although others amongst the claim group had questioned this, stating that she may have been Nyiyabarli.

(Emphasis added.)

34    From [580] onwards, Barker J traces what appears to have been something of a development in the opinions of Dr Palmer, in part influenced by the views of other anthropologists, and then by the views of one particular informant, a woman identified as Bonny Tucker. The three anthropologists appeared to move from a position where they considered Ijiyangu’s mother was likely Nyiyaparli, and her father Banjima, to a position where they agreed there was “no certainty” about this matter. At [588], Barker J notes the opinions expressed by the three experts (Dr Palmer, Mr Robinson and Dr Vachon) in a joint experts’ report, where they speak of Ijiyangu’s “Banjima identity” which, as the following passages in Barker J’s reasons demonstrate, encompassed more than descent. The experts referred to the concept of the “jural public”, being, in Barker J’s words, Aboriginal people “who were generally in the area, not necessarily Banjima but able to speak with some authority”. Barker J noted the experts placed differing weight on the opinions of such people about Ijiyangu’s identity.

35    At [593]-[594], Barker J set out the competing views:

Dr Palmer said that the genealogical connection of a person to an area on its own is not sufficient in a customary system, in his view, for people to be recognised and actually having rights in country. There might be potential rights that could be realised. But in a cognatic system there is an exercise of choice which has to be made. Otherwise the system would not function as a normative system.

Mr Robinson agreed that genealogy is important and indeed fundamental. He added that it is fundamental in the sense that Aboriginal societies are based on kinship and “people’s interconnectedness through kinship”. These are societies where status is ascribed: “You become a member of the society as a result of who you’re descended from, not how you achieve it. Your achievements during life might add or take away some of those rights or restrict them in some ways, but the very fact of descent … fundamentally gives an individual certain rights which cannot be taken away.” So he placed more emphasis on genealogy than Dr Palmer would.

36    At [595]-[601], Barker J expressed his conclusions on the question:

For the Court it is a very difficult thing to have to decide at this distance of time from when Daisy was born and lived whether Daisy was a member of the Banjima language group, that is to say had Banjima ancestry. It is understandable that, as a woman who apparently lived on Mulga Downs station for many years, which I accept (as noted above) is part of traditional Banjima country, and may have spoken the Banjima language, she may have been considered by some, if not many, as a Banjima woman for general cultural purposes. Her children and their children may well have grown up mixing with Banjima people and considering Daisy’s identity was Banjima.

If one looks for independent ethnographic data to show that Daisy had any Banjima ancestry, however, the evidence is lacking. The data provided by Dr Vachon to Dr Palmer strongly suggests Daisy’s father was not Puurna, a Banjima man, as some in the group had previously thought. Rather, he was married to a “sister” of Daisy and was not the father to any of Daisy’s siblings. Neither of the anthropologists have doubted the veracity of this data and the Court also accepts it is proper to regard it as reliable.

There are some circumstances in which the lack of an independent ethnographic record supporting the inclusion of a claimed apical ancestor amongst the ancestors who may be taken to have possessed native title rights in the claim area at sovereignty may be of relatively little moment, and the evidence of claimants themselves concerning the reputation of a claimed apical ancestor will be determinative and lead to a finding that the claimed apical ancestor was indeed an ancestor for native title purposes – as indeed I have found above in the cases of Sam Coffin and Whitehead. In this particular instance, however, there is no clear agreement amongst members of the claim group themselves as to Daisy’s identity. There are those who emphasise Daisy’s Nyiyabarli ancestry and those who say she was Banjima.

The Court accepts that, for native title purposes, it is not enough that a community or segments of a community of Aboriginal people acknowledge a person as part of their group if that person does not also have a relevant ancestry within that group by their law and custom, as Mr Robinson and Dr Palmer explained in their evidence. It is not enough, if a person’s ancestry is in question, for example, merely to show that a person has lived for many years in the relevant claim area and been involved in the relevant community’s cultural activities, if there is some real doubt about their ancestral connection or traditional incorporation within that community. This is one of the difficult issues governing native title claim group membership.

Based on the evidence as a whole, the Court is unable to conclude, on the balance of probabilities, that Daisy had any relevant ancestral connection to the Banjima people. The tipping point in the weighing process is the serious doubt conveyed by the data provided by Dr Vachon to Dr Palmer, which has also plainly influenced the serious uncertainties about her ancestry expressed by the anthropologists.

What can be said, as indeed the anthropologists have concluded, is that there is a “possibility” that Daisy had Banjima connections. However, in the light of all the evidence, that possibility does not enable the Court to conclude, on the balance of probabilities, that she had a Banjima ancestry.

The Court must, therefore, conclude, for the purposes of the NTA and this proceeding, that Daisy Yijiyangu is not an apical ancestor as claimed in the application.

37    What should be emphasised from these passages is that the matter which troubled Barker J the most, and led to the finding his Honour made, was the “ancestry” of Ijiyangu. That is, there was insufficient evidence about the fact of her descent from (relevantly) a Banjima man. It would appear that both the anthropologists and the Court placed significant weight on what had been said by Bonny Tucker. I return to Mrs Tucker’s accounts below, because they were raised by the applicants.

38    The applicants have each deposed to the effect the Court’s decision had on them. Mr Steven Dhu stated:

I became aware in August 2013 of Barker J’s finding that Ijiyangu (Daisy) was not a Banjima person with the result that her descendants were not Banjima native title holders. I was very surprised by this finding. Based on what I had been told during my involvement in native title I believed she was a Banjima person.

The descendants of Ijiyangu (Daisy) disputed Barker J’s finding that she was not a Banjima person. My father, Brendan and I (and other descendants of Ijiyangu (Daisy) that I am aware of) thought that YMAC had not done its job properly. We were also concerned about our status under native title agreements and in relation to existing trusts through which benefits were distributed.

39    And Mr Brendan Dhu stated:

In 2013 I learned that the Federal Court did not accept that Ijiyangu (Daisy) was a Banjima Apical. This left me without the identity as a Pilbara common law holder that I had hoped for from that case.

40    Steven Dhu deposed there was no consultation with him, or his brother, about Ijiyangu, and they were not asked for any information they might have supplied about her ancestry. In a passage which was not challenged in cross-examination, Steven Dhu deposed:

Sometime around 2009 I had a conversation in Roebourne with Mr Ibrahim Kakay who I knew then to be a lawyer working for YMAC. I was working for the Ngarluma Aboriginal Corporation at the time. I was walking out of the Ngarluma office when I bumped into him. Mr Kakay told me that Ijiyangu (Daisy) had been put forward as a Banjima apical ancestor in support of the combined Banjima claim that YMAC were running in the Federal Court. He told me that he was involved in preparing evidence in support of that case and would make contact with me again to discuss my knowledge of Ijiyangu (Daisy). He asked me for the address of my father so he could take a statement from him. That was the last that I heard form Mr Kakay or YMAC about the trial. Neither I, nor my father, nor my brother Brendan nor any other immediate members of my family were called as witnesses to give evidence about Ijiyangu (Daisy) at the trial. I am not aware that any anthropologist came and spoke with us either. It was a passing conversation the significance of which I did not appreciate until Barker J handed his decision down in the Banjima native title claims.

(Typographical errors in original.)

41    The Banjima Native Title Aboriginal Corporation RNTBC (Banjima PBC) became the determined prescribed body corporate for the Banjima determination.

42    The Banjima determination defined the Banjima People in the following way:

The Banjima People are those Aboriginal persons who:

(a)    are descendants of one or more of the following apical ancestors:

(i)    Bob Tucker (Wirilimura);

(ii)    Gawi;

(iii)    Yinini (Arju);

(iv)    Sam Coffin;

(v)    George Marndu;

(vi)    Whitehead;

(vii)    Yidingganin;

(viii)    Maggie (Nyukayi);

(ix)    Yandikuji; and

(b)    recognise themselves as a Banjima person, and are recognised by others as a Banjima person.

The aftermath of Banjima (No 2)

43    After the decision in Banjima (No 2) in 2013, there were disputes about the position of Ijiyangu’s descendants in terms of their eligibility for benefits. There were eventually resolved through the Banjima Internal Settlement Deed in 2014.

44    The Banjima PBC and Yaramarri Banjima Corporation Limited are both parties to the Banjima Deed. Banjima PBC is a party on its own behalf and on behalf of the Banjima People. Yaramarri is a party to the Banjima Deed on its own behalf and on behalf of descendants of Ijiyangu, including the applicants in this proceeding.

45    The agreed facts are:

The Banjima Internal Settlement Deed provides, amongst other things:

a.    the Daisy Descendants will not appeal or seek to appeal the Banjima Decision, and will not seek to vary or revoke the Banjima Determination;

b.    the Banjima prescribed body corporate will provide a class of membership for all current and future descendants of Ijiyangu (Daisy) who will be entitled to attend meetings and receive benefits (amongst other rights);

c.    the parties will establish a benefits management structure (BMS) comprising the Banjima Charitable Trust, the Banjima Direct Benefits Trust (B1 Trust) and the Yaramarri Banjima Direct Benefits Trust (B2 Trust);

d.    descendants of Ijiyangu (Daisy) and Banjima people not entitled to be beneficiaries of the B1 Trust [but] are entitled to be members of the B2 Trust;

e.    the Applicants and their late father were named as Additional Beneficiaries for the B1 Trust and listed in Schedule 3 – List of Initial Beneficiaries of the B1 Trust who are Banjima People;

f.    the other descendants of Ijiyangu (Daisy) were to be beneficiaries of the B2 Trust; and

g.    the objects of the Charitable Trust were to be any charitable purpose which benefits a class of Aboriginal people that includes the Banjima people and the descendants of Ijiyangu (Daisy).

46    It is further agreed that in or about March 2015 the applicants applied for membership of the B1 Trust, and signed an agreement that enabled them to receive a distribution from a Sub Fund of the B1 Trust. Each of the applicants and their late father received payments from the B1 Trust in 2015, and in 2017 Mr Steven Dhu received a further payment.

47    There was some debate during the hearing about the amounts of the payments received, and how many were received. I do not consider the precise amounts are material to the issues in the proceeding, but there can be no debate on the evidence that Steven and Brendan Dhu received substantial payments from the B1 Trust during this period. The evidence does not disclose how, proportionally, the payments they received measured against the payments received by other group members.

48    As I explain below, in my opinion it is the case that some of the negativity towards the applicants from some Nyiyaparli common law holders appeared to stem from the substantial amounts of money the applicants had received from what might be called Banjima-related sources, on the basis they identified as Banjima people. Criticism and resentment of the applicants voluntarily taking large sums of money on the basis of being Banjima people, and yet now seeking to be included as Nyiyaparli People and asserting rights to receive benefits pursuant to that identification, was apparent. In my opinion, the evidence disclosed a sense from some Nyiyaparli people that the applicants are, to use a colloquial term, ‘double dipping’.

49    In late 2017 a dispute arose between the applicants and the trustee of the B1 Trust (Australian Executor Trustees Ltd) in relation to a distribution policy which had been introduced in August 2017. That distribution policy related to “individual non-IBN beneficiaries” of the trust, and included a change to the policy regarding “additional beneficiaries”, being the class that included the applicants and their father.

50    The policy stated that the additional beneficiaries would be eligible for a one-off payment of $10,000, and not be entitled to any further payments. The policy then stated:

The rationale behind these payments is that these beneficiaries have no connection to MIB Apical Ancestors and had little or no involvement within the MIB Community…

51    The applicants commenced a proceeding against the trustee in the Supreme Court of Western Australia, which was settled in 2019.

52    As part of the settlement, the agreed facts are that in June 2019, by a letter to the trustee, the applicants:

a.    requested [the trustee] to remove their names from the Register of B1 Banjima Beneficiaries;

b.    relinquished and disclaimed their position and any rights as Additional Beneficiaries of the B1 Trust; and

c.    advised that they had no objection to the removal of the Additional Beneficiary class from the B1 Trust.

53    It is agreed that the applicants remain eligible to receive payments under the Banjima Charitable Trust. It is also agreed that Brendan Dhu has in fact relied on this eligibility, and has made various applications for assistance to the Banjima Charitable Trust between August 2018 and October 2020, at least some of which I infer have been granted.

The Nyiyaparli determination

54    The Nyiyaparli determination was made on 26 September 2018. In a chronological sense, this consent determination was agreed to prior to the applicants relinquishing their interests in the B1 trust, but after the dispute about their entitlements as Banjima people under that trust had commenced. This Court ordered that Karlka shall hold the determined native title in trust for the Nyiyaparli common law holders pursuant to s 56(2)(b) of the Native Title Act. The determination defines the Nyiyaparli People, and therefore the common law holders of native title, in the following way (with my emphasis):

The Nyiyaparli People are those persons who:

(a)    are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyiyaparli People, one or more of the following persons:

(i)    Mintaramunya;

(ii)    Pitjirrpangu;

(iii)    Yirkanpangu (Jesse);

(iv)    Kitjiempa (Molly);

(v)    Mapa (Rosie);

(vi)    Iringkulayi (Billy Martin Moses);

(vii)    Parnkahanha (Toby Cadigan);

(viii)    Wirlpangunha (Rabbity-Bung);

(ix)    Wuruwurunha (Tommy Malana);

(x)    Ijiyangu (Daisy);

(xi)    Sibling set of Ivy, Solomon and Mildred; and

(xii)    Sibling set of Maynha and Itika,

or, though not descended from those persons, have been incorporated into the Nyiyaparli group in accordance with Nyiyaparli traditional laws and customs,

and

(b)    identify themselves as Nyiyaparli under traditional law and custom and are so identified by other Nyiyaparli People as Nyiyaparli;

and

(c)    have a connection with the land and waters of the Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyiyaparli People.

55    The definition thus incorporates the primary pathway of descent, coupled with mutual recognition (see Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70); and the existence of a traditional “connection” to the land and waters in the Nyiyaparli determination area.

56    Karlka’s Rule Book was registered by a delegate of the Registrar of Indigenous Corporations on 4 September 2018. The Rule Book uses the same definition for the Nyiyaparli People as that used in the Nyiyaparli determination.

How Ijiyangu came to be an apical on the Nyiyaparli determination

57    The description of the Nyiyaparli People extracted above from the determination differs from that included in the original Nyiyaparli native title applications in several respects. One difference is the inclusion of an additional three sets of apical ancestors, not listed in the Nyiyaparli applications. One of the additional apical ancestors was Ijiyangu.

58    This discrepancy appears to be a result of the long and complex procedural history of the determination, which included significant disagreement between groups within the Nyiyaparli People and adjacent and overlapping claims. That history is set out in the Court’s reasons in the Nyiyaparli determination itself from [44] to [49], and in Stock on behalf of the Nyiyaparli People v State of Western Australia (No 2) [2018] FCA 1091. The latter was an interlocutory decision by Barker J relating to the proposed joinder by a person within the Nyiyaparli claim group who objected to the inclusion of the additional ancestors. Although Barker J does not name the apical ancestors, or the families descended from them, I infer this included Ijiyangu.

59    It is appropriate to set out the history relating to Ijiyangu’s inclusion as an apical on the Nyiyaparli determination.

60    The claim group description was amended several times between the filing of the applications and the Nyiyaparli determination. As part of negotiations occurring between the Nyiyaparli applicant and the respondent parties in the early-mid 2010s, the Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the applicant commissioned further anthropological research to that which had already been undertaken. That research was done in the period of 2015 to 2017 by Mr Kim McCaul, and identified potential additional apical ancestors to be included in the description of native title holders. One of these apical ancestors was Ijiyangu. I note that this was a period of time after the Banjima decision, and Barker J’s conclusion about Ijiyangu.

61    In Stock on behalf of the Nyiyaparli People v State of Western Australia (No 3) [2018] FCA 1306, the Court dismissed an application of a Mr Phillip William Dhu to be joined as a party to the proceeding. This decision came a few months after the joinder decision in Stock (No 2). I infer that Mr Phillip Dhu is related to the applicants in this proceeding, and Karlka made a submission to that effect.

62    Mr Phillip Dhu contended that his interests would be affected if the Nyiyaparli determination were made with Ijiyangu as an apical ancestor. He referred to, but did not produce, an agreement which he had described as a “private commercial document”. He contended he, and people associated with him, would be deprived of payments that, in Barker J’s words “are otherwise due to the party called the ‘Banjima common law holders’”. One of the reasons Barker J dismissed his joinder application was because, without that document, it was difficult for the Court to see how Mr Phillip Dhu’s interests could be adversely affected if Ijiyangu was listed as an apical ancestor.

63    Barker J noted at [10] that:

It is not an application made by Mr Dhu in a representative capacity for other people, although it is reasonable to say that, in his affidavit and the affidavit of Ms Helen Cynthia Smith made 16 August 2018 and the affidavit of Peter Dodd made 16 August 2018, that Mr Dhu relies upon, he is endeavouring, in a broad sense, to indicate that there are other people, in a similar position to him, who would like, in effect, to be heard in relation to the adding of Daisy to the list of apical ancestors on the Nyiyaparli application. But be that as it may, the evidence before me also suggests, whilst Mr Dhu and those others would appear to be descendants of Daisy, that there are other descendants of Daisy in a similar position to them who do not actually take the same stance as Mr Dhu.

64    At [15], Barker J referred to Mr Phillip Dhu’s “key argument” that he and some of the others identify as Banjima People. Barker J recorded that Mr Phillip Dhu was proposing that there be an inquiry conducted by the National Native Title Tribunal to ascertain if, indeed, they were, or were not, Banjima People. Barker J then noted that the Court had decided this matter in the Banjima decision, by its finding that Ijiyangu was not a Banjima ancestor. Barker J then explained that “relatively recently” the Nyiyaparli group had decided to change the description of the claim group to add Ijiyangu, and then observed (at [17]) “but it is not as simple as that”, referring to the other two criteria for membership of the Nyiyaparli people, which I have set out at [54] above; namely mutual recognition and traditional connection to land and waters.

65    The qualifiers at (b) and (c) of the definition of Nyiyaparli People were also introduced into the description following Mr McCaul’s research. Barker J found at [48] of the Nyiyaparli determination that these qualifiers

provide a more accurate way of describing the proposed native title holders and are consistent with the traditional laws and customs of the Nyiyaparli People as disclosed in the connection materials.

66    One of the consequences of the introduction of the qualifiers is that, as Barker J noted at [20]-[21] of Stock (No 3):

If, as appears to be the case, Mr Dhu and others do not identify as Nyiyaparli People or do not want to identify as Nyiyaparli People, then they will not be within the claim group on the Nyiyaparli application, because they will not satisfy the description of native title holders that I have just referred to, especially in (b) and (c).

The simple fact that an apical ancestor of theirs is Daisy does not automatically mean that they are members of the Nyiyaparli claim group. They also have to identify as Nyiyaparli and have a connection under Nyiyaparli traditional law and custom to the area. They are steadfastly asserting in the submissions and the affidavits that they are Banjima People – and do not have Nyiyaparli connections, if I can put it that way.

67    Barker J refused Mr Phillip Dhu’s application to be joined as a party to the proceeding on the basis that his Honour was not satisfied that to do so was in the interests of justice. His Honour indicated that on the evidence before him there was nothing to suggest that the “automatic” result of Ijiyangu’s inclusion as a Nyiyaparli apical would “see the cessation of payments” under the Banjima agreement with Ijiyangu’s descendants. This finding was in part because of the additional qualifiers introduced to the definition of Nyiyaparli People, requiring self-identification as a Nyiyaparli person. At [32], Barker J described the concern of Mr Phillip Dhu in the following terms:

It is a concern that, as Ms Smith put it, the Banjima common law holders will point to the Nyiyaparli native title determination to exclude her and other Daisy descendants from benefitting under the charitable trust programs, and escalate what is now an (asserted) emerging trend of depriving of them of their fair, just and equitable rights and interests through the distributions of the Banjima charitable trust programs.

68    The denial of benefits, of course, is precisely what the evidence demonstrates came to pass in respect of the present applicants. However in Stock (No 3) Barker J framed this as more relevantly an issue for the Banjima trustees, and not a basis on which to join Mr Phillip Dhu to the Nyiyaparli determination.

69    The joinder application by Mr Phillip Dhu was made only a couple of months before the proposed date for the Nyiyaparli consent determination. Barker J’s decision in Stock (No 3) meant the Nyiyaparli determination could be made as proposed. The disputes about entitlements of the descendants of Ijiyangu to benefits under the Banjima trusts continued alongside these developments.

Karlka and its decision making

70    The chronology relating to the applicants’ interactions with Karlka is generally agreed. The applicants made written applications for membership of Karlka in August 2019, which were refused in accordance with r 6.13 of the Rule Book. The refusal was on the basis that Karlka was not satisfied that the applicants identify themselves as Nyiyaparli persons, or are so identified by other Nyiyaparli people. The applicants were notified of the refusal on 5 November 2019, and of their right to appeal under r 6.1.4 of the Rule Book. It is agreed that the applicants did not pursue an appeal.

Relevant Rule Book provisions

71    Rule 5 of the Rule Book requires that Karlka maintain a Register of Nyiyaparli People, which under r 5.2(e), is separate from the Register of Members of the Corporation. Rule 5.3 provides for the process by which the Register is to be updated:

5.3    Process for updating the Register

(a)    Subject to that person not already being included on the Register of Nyiyaparli People, should the Corporation become aware that a person claims to be a member of the Nyiyaparli People then the Corporation must as soon as reasonably practicable consider the claim and decide whether to include the person on the Register of Nyiyaparli People (whether or not the person applies directly to the Corporation to be recognised as a member of the Nyiyaparli People).

(b)    If a person ceases to be a Nyiyaparli Person (including because they are deceased) then the Corporation must as soon as reasonably practicable remove the person from the Register of Nyiyaparli People.

(c)    For the purposes of rules 5.2(a), 5.3(a) and 5.3(b), whether a person is or continues to be included on the Register of Nyiyaparli People will be determined by the Directors applying the following criteria. If there is any inconsistency, a criterion higher in the list prevails over one that is lower in the list. The Corporation:

(i)    must include a person on or remove a person from the current Register of Nyiyaparli People if a court of competent jurisdiction determines that the person is or is not (as the case may be) a Nyiyaparli Person;

(ii)    must include a person on or remove a person from the current Register of Nyiyaparli People if the Common Law Holders of Native Title in respect of a Nyiyaparli Determination or the members of the Native Title Claim Group in respect of the Native Title Claim make a decision in accordance with an Approved Process that the person is or is not (as the case may be) a Nyiyaparli Person; and

(iii)    may request and act upon the advice of:

(A)    the Representative Body for the Nyiyaparli Claim; or

(B)    the solicitor on the record for the Nyiyaparli Claim.

72    The “Approved Process” is defined in Schedule 1 of the Rule Book:

(a)    in the case of a decision by the Native Title Claim Group of a Nyiyaparli Claim, a traditional decision making process, or if there is no such process, then an agreed and adopted decision making process, by which the members of the Native Title Claim Group make decisions in relation to the Nyiyaparli Claim; and in the absence of any traditional or agreed and adopted decision making process of that kind, means the decision making process by which the members of the Native Title Claim Group authorised the making of the Nyiyaparli Claim; and

(b)    in the case of a decision by the Common Law Holders of the native title in respect of a Nyiyaparli Determination, a traditional decision making process, or if there is no such process, then an agreed and adopted decision making process, by which the Common Law Holders make a Native Title Decision.

73    Membership of Karlka is governed by r 6 of the Rule Book. Membership applications are decided under r 6.1.3, which provides a process and criteria by which the Directors of Karlka are to consider and decide to accept or reject the application. Rule 6.1.3 provides:

6.1.3    Deciding Membership applications

(a)    The Directors will consider and decide membership applications in accordance with this rule 6.1.3.

(b)    The Directors must take into account and are bound by:

(i)    the description of the Native Title Claim Group in the Nyiyaparli Claim from time from time;

(ii)    the description of the Native Title Holders in any relevant Nyiyaparli Determination; and

(iii)    any declaration or determination by a court of competent jurisdiction as to whether a person or class of persons is or is not a member of the Native Title Claim Group in respect of the Nyiyaparli Claim, or a Common Law Holder of Native Title in respect of a Nyiyaparli Determination.

(c)    The Directors may take into account any other information they consider to be relevant including:

(i)    the advice or opinion of an anthropologist; or

(ii)    whether or not the person’s name appears on the Register of Nyiyaparli People at the relevant time; or

(iii)    the advice of the Representative Body for the Nyiyaparli Claim; or

(iv)    the advice of the solicitor on the record for the Nyiyaparli Claim.

(d)    At the next meeting of the Directors following receipt of an application for membership that complies with the Rule Book, the Directors must consider the application and determine whether to accept or reject the application.

(e)    The Directors must not consider or accept a membership application that is not compliant with the Rule Book.

(f)    Membership applications will be considered and decided in the order in which they are received by the Corporation.

(g)    The Directors may refuse to accept a membership application even if the Applicant has applied in writing and complies with all the eligibility requirements.

(h)    If an application for membership is accepted, the Corporation must notify the Applicant in writing and add the Applicant’s name to the Register of Members within 14 days of the decision.

(i)    If an application for membership is rejected, the Corporation must notify the Applicant within 14 days of the decision and provide in writing:

(i)    reasons for the rejection; and

(ii)    a copy of rule 6.1.4 detailing the appeal process.

74    The evidence shows the directors’ decision in relation to the applicants was expressed in the following terms:

Pursuant to Rule 6.1.3 (i) of the KNAC Rulebook, the KNAC Board has refused your membership application because it is not satisfied that:

(a)    you identify as a Nyiyaparli person or are recognised by others a Nyiyaparli person.

The December 2020 meeting

75    There was then some correspondence between the applicants’ lawyer and Karlka’s lawyer about whether the applicants would take up the process set out in Karlka’s Rule Book for an appeal. For reasons that are not relevant to the resolution of the appeal, the applicants decided not to do so. Karlka’s eventual response was expressed in correspondence in the following terms:

In these circumstances the KNAC Board has considered its legal and cultural obligations and has decided to convene a meeting of the Nyiyaparli common law holders for the purpose of making a decision on whether your clients are Nyiyaparli People. Consideration of this issue is not a legal matter alone and must properly be put to the native title holding group of which your clients assert they are members. This is reflected in Rule 5.3(c)(ii) of the KNAC Rule Book which criteria the KNAC Board intends to apply to the question of whether or not your clients are Nyiyapar1i persons.

Your clients will each be invited to attend the meeting and may bring to the attention of the common law holders any matters they believe relevant to their status as Nyiyaparli persons.

Any proceedings commenced before this required process occurs would be premature and should your clients instruct you to take such steps, my client will seek to rely upon this correspondence in relation to the issue of costs.

76    This correspondence reflected a decision made by the Karlka Board on 25 February 2020. However, for a number of reasons, that meeting did not occur until 2 December 2020.

77    On 17 April 2020 the applicants commenced this proceeding. Some discussion occurred between the parties during this period, including a mediation on 14 October 2020, which was facilitated by the Court. After the mediation, on 26 October 2020, the applicants provided Karlka with a final version of a statement in support of their assertions for membership of Karlka, to be used at the planned common law holders meeting. Their lawyer indicated the applicants did not propose to attend the December meeting in person.

78    The statement was:

Steven and Brendan Dhu are Nyiyaparli People and would like to become members of KNAC. They are descendants of Ijiyangu (Daisy), a Nyiyaparli apical. The connection to Ijiyangu is through their father and their maarli Ned Dhu. Ned Dhu was the eldest of Susan Swan’s children. Susan Swan was the daughter of Ijiyanugu. Her brothers and sister were Billy Swan, Ivy Swan and Jackie Parker.

Ned Dhu grew up on country near or around the Martuyitha. He lived at Cowra outcamp and Weediana station. Waniba sister to Ijiyangu helped grow him up. When he was older Ned worked at Comet mine. He married Margaret Lockyer. Ned, Margaret and their children spent many years living at Marble Bar. Steven and Brendan’s grandmother, uncles and aunty, Margaret Dhu, Wally Dhu, Arnold Dhu, Victoria Dhu (Spuddy), Mark Dhu still lives there and Arnold works at the school.

79    The December 2020 common law holders’ meeting was held at the Red Earth Arts Precinct, Karratha, Western Australia. At the meeting, the statement prepared by the applicants was read out and displayed on a screen. The Nyiyaparli common law holders who voted (about half of the attendees) refused to recognise the applicants as Nyiyaparli people.

80    It is an agreed fact that that decision of the Nyiyaparli common law holders was made in accordance with r 5.3(c)(ii) of the Rule Book, including in accordance with the Approved Process set out in Schedule 1 of that Rule Book.

81    A significant part of the affidavit evidence describes what occurred at the meeting from the deponents’ varying perspectives. In general, the respondent emphasised evidence that the meeting proceeded as normal for meetings of the Nyiyaparli common law holders. The applicants emphasised the evidence of Ms Christina Stone that there was a significant disruption to the meeting in which a person was removed, and Ms Stone’s evidence that she felt intimidated and chose not to vote on the resolutions.

THE PARTIES’ ARGUMENTS IN SUMMARY

The applicants

82    Counsel emphasised that the challenge brought in these proceedings is not to the decision of the respondent’s board of directors about the applicants’ membership applications. The applicants accept there was an available appeal process, which they did not use (in contrast to the Derschaw family, whom I discuss later in these reasons). They are not therefore pursuing any challenge to their inability to become members of Karlka as a registered native title body corporate. As they submit, and Karlka did not dispute, Nyiyaparli common law holders do not have to be members of Karlka.

83    The challenge is to the function of the respondent, as a fiduciary to the common law holders, to maintain an accurate Register of Nyiyaparli People under r 5 of the its Rule Book. That Register, the applicants submit, must accurately reflect those people who are, by reason of the definition of Nyiyaparli People in the Nyiyaparli determination, entitled to be common law holders and therefore entitled to be on that Register.

84    What matters therefore, is the effect of the resolutions passed at the December 2020 meeting and the fact those resolutions precluded the applicants’ names being entered on the Register. The applicants submit the resolutions as proposed and passed are not compatible with the requirements in the Nyiyaparli determination. The resolutions were not carried out in accordance with traditional law and custom, either as to process or as to content of the resolutions. In part, the applicants’ submissions on this point appear to involve impugning r 5 itself, which they submit “cuts across” the definition of the common law holders in the Nyiyaparli determination. They do not however seek any relief in relation to r 5 itself.

85    As I understand them, the applicants’ contentions follow two alternative paths.

86    First, and as their principal contention, the applicants contend the Nyiyaparli common law holders were not, in law, able to use an “agreed and adopted decision-making process” (namely; a vote by majority show of hands) at their December 2020 meeting to decide to reject the applicants as Nyiyaparli people. The applicants contend the process of recognition had to be done in accordance with traditional Nyiyaparli law and custom.

87    In the alternative, if the applicants are wrong in their principal contention, they contend the common law holders’ decision is reviewable by this Court, and the decision is affected by error and has no legal effect. That is because the resolutions were passed on what the applicants describe in their submissions as “an incorrect factual footing”. Namely, that the Dhus were “of Banjima descent”, in some sense that is exclusive of them having and maintaining a Nyiyaparli identity. This is factually incorrect, the applicants submit. Since their descent from Ijiyangu is agreed, and the genealogical connections are explained in detail in the evidence, and since there are other members of Karlka who have the same descent line, and who are members of both Karlka and the Banjima PBC, the applicants’ exclusion cannot objectively be because of this fact. Their connection to country has always been a connection to Ijiyangu’s country.

88    Ijiyangu’s connection to country is said by the applicants to be central to this dispute. They relied on a number of different pieces of evidence to prove that her connection to country was to Nyiyaparli country. They rely on Bonny Tucker’s preservation evidence affidavit in the Nyiyaparli applications.

89    If the applicants succeed in impugning the decision of the common law holders to reject the applicants as Nyiyaparli People, the applicants then contend there are two options for the Court. The first is to order Karlka to convene a further meeting to consider whether the applicants are Nyiyaparli People. The applicants submit this has occurred, or a similar approach has been taken in Sandy v Yindjibarndi Aboriginal Corporation RNTBC (No 4) [2018] WASC 124; 126 ACSR 370. The second is for the Court to determine whether the applicants are Nyiyaparli People on the evidence before it. The applicants submit this has been done before, relying on Warrie (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803; 365 ALR 624, where Rares J made a decision whether or not three individuals were or were not Yindjibarndi People. The applicants submit a similar task was performed by McKerracher J in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752, and that indeed Banjima (No 2) itself had this effect, because of findings such as those about Ijiyangu.

90    The applicants submit the second option is preferable, because

in the circumstances Karlka or a meeting of common law holders “is unlikely to give the necessary measured consideration to the question in order to arrive at an informed and fair decision”: Aplin on behalf of the Waanyi Peoples v State of Queensland per Dowsett J at [269].

The traditional law and custom of identification of Nyiyaparli People

91    Counsel for the applicants drew attention to Bonny Tucker’s evidence given in the Nyiyaparli proceeding that:

They can follow a different group too and stay as Nyiyaparli. There is no rule that says you cannot be Nyiyaparli and Banjima.

92    Counsel also suggested that Mr David Stock is an example of a person who is associated with both Banjima and Nyiyaparli, in that Mr Stock is a member of the Banjima Elders group, and is also a member of Karlka. Mr Stock identified himself, in his affidavit filed in the Nyiyaparli proceeding, as “a Nyiyaparli elder. I am also a Banjima man, I can go both ways”. Counsel submitted that this is not an uncommon position, relying on the affidavit evidence of Kevin Banks-Smith affirmed 24 February 2021. Mr Banks-Smith annexes the member lists of Karlka, Banjima PBC and the Palyku Aboriginal Corporation, which the applicants contend demonstrate “substantial overlap”.

93    The applicants submitted that the evidence of Nyiyaparli elders is that while knowledge of Nyiyaparli country was an integral part of being a Nyiyaparli person, where “people don’t necessarily know where they’re from or their family or their country … elders can help out and teach them”. In this sense, lack of knowledge does not “exclude” a person from belonging to or having a connection with country or from identifying as Nyiyaparli. Further, in the applicants’ submission, this could not be so, because connection to country through descent is “inalienable”. In oral submissions, counsel for the applicants relied on Bonny Tucker’s and Mr Stock’s witness statements filed in the Nyiyaparli proceeding. He emphasised Mr Stock’s statements that:

It is the same culture way. You can’t throw away your country. It belongs to you.

94    And that:

You can’t take away that connection. People choose which way to follow –

95    The applicants submitted that this evidence constrained the second aspect of the mutual recognition limb; in other words constrained the circumstances in which recognition could be withheld by the Nyiyaparli People. In this sense, counsel for the applicants submitted that the decisions of the Nyiyaparli common law holders not to “recognise” the applicants as Nyiyaparli people were not made according to traditional law and custom. The inference was that there were non-traditional reasons at work, such as resentment about monies received and the like.

96    When asked how this submission could be reconciled with the definition of Nyiyaparli People in the Nyiyaparli determination, counsel submitted the mutual recognition aspect is conditioned on recognition being in accordance with the traditional law and custom of the Nyiyaparli People. Counsel submitted that evidence of the content of that traditional law and custom comes from the evidence of Mr Stock and Bonny Tucker. On the applicants’ account of that evidence, the traditional law and custom of how a person is to be identified as Nyiyaparli requires knowledge of and connection to country, but when people who may have been removed from country or otherwise denied that knowledge seek to reconnect, the door cannot “be permanently closed; … there’s a process to regain that connection”, including a willingness to learn from elders and elders’ obligations to pass on knowledge to such people. In contrast to a person who had been forcibly removed, or disconnected, from their country and who needed to “reconnect”, the applicants “lived for substantial periods on their country” and “always maintained a connection to that country”.

97    Counsel submitted that the appropriate process under traditional law and custom for deciding whether persons such as the applicants should be recognised as Nyiyaparli people was not a large meeting of common law holders, but consideration by a group of senior Nyiyaparli people. Counsel went on in oral submissions to emphasise that, while the minutes of the meeting record the presence of 215 people, the votes for each resolution are recorded as being around 100 people for and 0 against. The inference is that a large number of attendees abstained from voting, and their views on recognition of the applicants as Nyiyaparli remain unknown. Counsel submitted that the Court should “disregard” these resolutions and substitute its own determination on the question whether the applicants should properly be recognised as Nyiyaparli people.

Incorrect factual premise

98    Secondly and alternatively, the applicants contended that if the common law holders were able by majority show of hands not to recognise the applicants as Nyiyaparli people, resolutions 5 and 6 of the December 2020 meeting have no effect, because they were passed on an incorrect factual footing. The applicants submit that at the December 2020 meeting, “there was a general view that [the applicants] were of Banjima descent”, which counsel submitted “is just clearly wrong”. Counsel pointed to the minutes of the December 2020 meeting, which record the following:

There were some questions regarding the process and discussion throughout the group which concluded with the general view that both men were of Banjima descent.

99    Counsel emphasised that the issue in dispute in this proceeding had arisen because of Barker J’s finding that Ijiyangu was not a Banjima person. The applicants were following what they understood to be Ijiyangu’s country by participating in the MIB claim. As well being found by Barker J not to be a Banjima person, Ijiyangu has been found by this Court (in the Nyiyaparli determination) to be a Nyiyaparli person. Therefore, through Ijiyangu, the applicants do not have Banjima descent.

100    If the view attributed to people at the December 2020 meeting is understood as a reference to the applicants being descended from other Banjima ancestors (and not Ijiyangu), the applicants submit it is clear on the evidence that being “of Banjima descent”, or otherwise associated with Banjima, does not necessarily exclude a person from also being a Nyiyaparli person.

The respondent

101    Karlka framed this case as one about “the capacity and authority of a prescribed body corporate to determine its membership in accordance with the processes in its Rule Book”.

Nyiyaparli traditional law and custom

The applicants are not, or have not proven, they are Nyiyaparli people

102    The respondent contended that in effect the applicants seek to be identified as Nyiyaparli people on the basis of descent alone, without accepting or acknowledging that the mutual recognition requirement goes beyond recognition of descent. Karlka submitted that the applicants have not provided any evidence that they identify as Nyiyaparli in accordance with Nyiyaparli traditional law and custom. Relevantly, under traditional law and custom recognition as a Nyiyaparli person by other Nyiyaparli people

depends not only on descent but also on choices as to which group a person identifies with and the extent of their involvement with the group.

103    The respondent accepts that individuals may identify with and be recognised as belonging to more than one group. The respondent also accepts that decisions about whether a person is Nyiyaparli must be made in accordance with Nyiyaparli traditional law and custom, but contends that:

However, for the purposes of the membership of KNAC and entry on the Register of Nyiyaparli People, those decisions must also be made in accordance with the processes set out in the KNAC Rule Book.

104    Karlka submits the applicants are required to prove that they meet all the aspects of the definition of Nyiyaparli people set out in the Nyiyaparli determination (and extracted at [54] above). That definition requires, in addition to descent from a Nyiyaparli ancestor, mutual recognition and connection to the land and waters covered by the determination.

105    In oral submissions, senior counsel for the respondent submitted that the evidence provided by the applicants about connection to country was in large part about Ijiyangu’s connection to country rather than their own connection, and in fact mainly related to areas within the Banjima determination. Further, the applicants did not adduce evidence about “how they personally have a connection to the [Nyiyaparli] determination area in accordance with the traditional laws and customs of the Nyiyaparli people”. Senior counsel submitted that the evidence the applicants did put before the Court, that for example the applicants camped on Nyiyaparli country, is evidence of “an association” with the area only.

106    Any connection the applicants may have had with the Nyiyaparli People through Ijiyangu, the respondent contends, was broken by their, and their family’s, choice to identify as Banjima. The respondent submits that on the evidence this “break” may have occurred as early as with Ijiyangu’s daughter (the applicants’ great grandmother), Susan Swan. In its written submissions, Karlka contends that Susan Swan

did not continue to acknowledge and observe Nyiyaparli traditional law and custom and [was] not a part of the Nyiyaparli community. Suzie Swan, born in or about 1905, is described as having “married out” and not maintaining any known connections to local Aboriginal families (Banjima, Nyiyaparli or otherwise).

107    The phrase “married out” is attributed to an extract from the website “www.drbilldayanthropologist.com”, which appeared as annexure SD13 to Mr Steven Dhu’s first affidavit.

108    Referring to the evidence of Mr McCaul contained in a document entitled “Excerpts from Draft of Nyiyaparli Connection Report by Vachon and Pannell”, which was produced for the purposes of the Nyiyaparli determination, senior counsel for the respondents submitted:

[W]here there’s a need to activate some rights or some historical connection that might be there, what is required under traditional law and custom to be accepted is a re-establishing of links with the Nyiyaparli People, participating in Nyiyaparli social affairs, visiting and learning about Nyiyaparli country and sites, and by the applicants’ own evidence, none of these steps have been taken by the applicants. They have not taken any active steps to re-join any break in connection that may have occurred.

109    Karlka highlighted Brendan Dhu’s oral evidence that he could not name any significant Nyiyaparli sites in the Determination Area and submitted that the applicants have not attempted to learn about Nyiyaparli sites, by for example attending the meetings of the common law holders. The transcript reflects some confusion by the respondent’s counsel between the brother’s names in submissions, but it is clear that only Brendan Dhu was cross-examined on this matter. The respondents submitted that the applicants have not “activated” or “exercised” their connection to Nyiyaparli. While it may be open to people with descent connections to other groups to identify as “both ways”, the respondents submit that “what is important, indeed essential, is knowing both ways and following them”. That is not the case for the applicants, who have until recently only identified as Banjima. The respondents highlight that it is an agreed fact that the applicants have not attended any Nyiyaparli meetings, prior to or since making their membership applications.

The resolutions were made in accordance with traditional law and custom

110    Relying on the affidavit evidence of Mr Leonard Stream, Karlka submitted that the Nyiyaparli People do not have a traditional decision-making process, and instead used an agreed and adopted process to pass the resolutions as set out in the Rule Book. That the process is “agreed and adopted” does not mean, however, that the resolutions were made without regard to traditional law and custom. Counsel referred to Mr Stream’s evidence that:

We do not have a traditional decision making process we have to follow. We vote by show of hands on these types of decisions. We do discuss things the cultural way. The community listen to the senior people talk if they want to talk, and then we have our vote.

The resolutions were not made on the basis of an incorrect premise

111    Karlka submitted that it was clear from the materials sent out to common law holders ahead of the December 2020 meeting how the applicants claimed to be eligible for membership of the Nyiyaparli people. In particular, the statement by the applicants circulated with the meeting papers identified them as descendants of Ijiyangu.

112    The respondent submitted that accordingly the resolutions of the common law holders did not proceed upon any mistake of fact, but rather on the basis asserted by the applicants. As to the statement in the minutes of the meeting that there was a view among the attendees that the applicants “were of Banjima descent”, Karlka submitted:

(a)    It is an agreed fact that the applicants have until recently identified as Banjima;

(b)    It is true that the applicants are of Banjima descent through their father and grandfather, Ned, who the applicants themselves describe as Banjima men. The respondents emphasise Steven Dhu’s affidavit evidence that Ned Dhu spoke Banjima fluently, and submit that there is no evidence that the applicants’ father or grandfather asserted any connection to the Nyiyaparli determination area or spoke Nyiyaparli;

(c)    No inferences should be drawn from the use of the word “descent” in the minutes. The minutes are not a statement of reasons, but simply a record of the decisions made at the meeting.

113    The respondents also submit that on the affidavit evidence before the Court, the circumstances of and atmosphere at the meeting were “typical”, noting that while the affidavit evidence of Ms Christina Stone contradicts this, she is alone in her view. Counsel for the respondent submitted that regardless of whether the discussion at the meeting became heated, Mr Stream’s evidence was that:

The meeting went how all our meetings usually go.

RESOLUTION

114    In my opinion, the personal view expressed by Keith Hall in his affidavit at [25]-[26] informs consideration of the resolutions at the meeting and Karlka’s emphasis on mutual recognition and connection criteria:

You cannot just switch over who you identify as, that is not the proper way. Under law it does not work that way, that does not make you one of our people. I thought the court protected that in our determination.

115    He continued:

Now, because Nyiyaparli have native title and our trust has money they want to come over here and say they are Nyiyaparli.

116    The mixing of more traditional understandings with antagonism arising from contemporary issues like eligibility for financial benefits was a constant theme of the respondents’ evidence and its case.

117    On the applicants’ case, what they have sought to do is to follow their ancestor, and maintain a connection to the country of that ancestor. The workings of the native title system have shifted them from one native title group to another. The applicants’ counsel put it this way:

Since the late 1990s, they have consistently claimed connections to that area. They have consistently claimed to hold Native Title based on that connection to that area. In addition, a finding that the resolution of this meeting established they are no[t] Nyiyaparli, really, does in a profound way mean that they have no place. They have no place in this part of the Pilbara as Native Title holders, and that is part of what makes this case so important, your Honour.

118    These reasons disclose that in substance I accept the applicant’s case to this point.

119    While the perceived motivations of the applicants loomed large in the evidence on behalf of Karlka, it is not their motivations which are determinative of the question whether they are members of the Nyiyaparli people. On the other side of the debate, nor is it enough to point to a descent connection to an apical ancestor on the Nyiyaparli determination.

120    The question whether the applicants are, or should be accepted as, Nyiyaparli People depends on the satisfaction of the three criteria for group membership in Sch 7 of the Nyiyaparli determination.

121    The second of those criteria depends upon mutual recognition. As I explained in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647, the adjective “mutual” is critical. The recognition is by an individual of their membership of a particular group; and by that same group of the individual. The recognition must be granted or withheld “under” traditional law and custom – that is, consistently with how group membership has been determined traditionally, by law and custom passed down from one generation to another. There is no room for contemporary motivations to either prompt or withhold recognition of certain individuals. That would be a licence for the operation of an unprincipled system for the holding of native title, without any normative content.

122    One of the unique features of the present proceeding is that the applicants’ former identification as Banjima came through Ijiyangu, and their present identification as Nyiyaparli comes through Ijiyangu. Thus, this is not really a situation of an individual deciding to go “both ways” through different parents or grandparents, and therefore seeking to be a member of two different native title-holding groups. As I explain below, the applicants have been consistent in their singular identification of the ancestor they follow, and what they understand to be her country, and therefore their country. The claimed descent connection has always been to Ijiyangu. The applicants provided persuasive evidence about how that choice was made, which I accept. Rather than any attempt to “go both ways”, there has been a quest by the applicants (and other members of their family) to go one way; a quest for the acceptance of Ijiyangu and acceptance of their connection to her country. Their predicament arises from judicial findings, in both the Banjima and Nyiyaparli determinations. Nevertheless, both the Banjima and Nyiyaparli determinations represent part of the law that is to be applied in considering the applicants’ contentions about the resolutions at the December 2020 meeting, and the failure to enter the applicants on the Register of Nyiyaparli common law holders.

The Karlka Register

123    Rule 5 of the Karlka Rule Book concerns the Register of Nyiyaparli People and r 5.2 requires Karlka to maintain the Register. By r 5.2(a), the Register must contain the names of all Aboriginal persons who are over 18 years of age and “members of the Nyiyaparli People”. Rule 5.2(a) also requires Karlka to “regularly update” the Register. Rule 5.2(e) makes it clear, if it were not otherwise, that the Register is separate from the register of Karlka corporation members.

124    Under r 5.3(c), there are two methods by which the directors of Karlka will be required to either enter a person in the Register, or remove a person. I infer this rule is applicable after the Register has been created, with the original list of common law holders following a determination of native title. In other words, the rule is intended to operate on an existing register of common law holders. One method for entry on the Register is by reason of a determination of a court of competent jurisdiction (this Court being such a Court): r 5.3(c)(i). The second method is because of a decision by the common law holders “in accordance with an Approved Process” as set out at [72] above.

125    The applicants contend the December 2020 resolutions were not made under an “Approved Process” as defined, because there was a traditional decision-making process that the common law holders should have followed, rather than agreeing and adopting a majority vote by show of hands.

126    As I explain below, I reject the applicants’ contention that the voting by majority show of hands at the December 2020 meeting, as an agreed and adopted process for the purposes of the definition of “Approved Process” was erroneous or invalid. However, I agree with what I understood to be the applicants’ underlying contention: namely that the common law holders’ decision was not made “under traditional Nyiyaparli law and custom”, and that is what Sch 7 of the Nyiyaparli determination requires. The failure was not because of the voting process; it was because of what I find, on the evidence, were the likely factors which governed the approach taken by the common law holders, being contemporary factors.

The applicants’ identity and connection to country

My conclusions about the applicants’ evidence of their identity and connection

127    Having heard and seen them give evidence, albeit remotely, I accept the applicants’ evidence about how and why they have identified as Banjima people. I accept that they genuinely see it as culturally appropriate, and in accordance with traditional law and custom, for them now to identify as Nyiyaparli, because of what has happened through the Banjima and Nyiyaparli native title determinations about their ancestor Ijiyangu. I reject any suggestion, which may have been implicit in Karlka’s evidence and submissions, that they are simply chasing financial benefits. That was not my assessment of the applicants.

128    I accept the applicants are both Pilbara men who know and understand their family histories, and have a connection to the country associated with Ijiyangu, whom they genuinely regard as the correct ancestor for them to follow, for traditional reasons associated with their mother’s instructions to them. They are not, to use Mr Stock’s language that I extract below, people who were taken away, or moved away, and lost their connections with their families and their country. Their beliefs about their identity and their country come from following what they understand to be the traditional way of deciding which ancestor’s country they should follow – namely, by abiding by what their elders have told them, and have instructed them. Steven Dhu explained this in his 16 April 2020 affidavit at [36]:

My maarli Ned and his siblings alive at the time, and my father’s siblings decided to join the IBN claim. My siblings followed our mother and decided to join what was then the Ngarluma Yindjibarndi claim. When it came to decide what claim to join I asked my mother which way I should go. My mother told me and my brother Brendan to follow our father. That was sometime in 1999 or 2000 at around the time I was moving to Perth to study law. I did not pay much attention to native title before then.

(Emphasis added.)

129    The imperative to honour what their mother had told them was also apparent in their oral evidence. Steven Dhu said:

Because when I came to study law in around the native title time I asked my mother on the proper cultural protocols which way I was – what she wanted us to follow. She said, “You go the top end with your father, you and your” - - -

130    It is correct that Steven Dhu was then asked whether the reason he joined the MIB claim was because he was following his father as a Banjima man, and he agreed with this proposition. But he then made it clear a few questions later that what he meant by this was that he was following Ijiyangu for her country, and therefore his country. In other words, in the times of his father and grandfather, their identity as Banjima men came from the line from Ijiyangu as a Banjima ancestor. I accept that evidence. It was not suggested in cross-examination to either applicant that there was any other Banjima descent line which explained why their father and grandfather identified as Banjima.

131    Steven Dhu’s understanding, until the Banjima determination, was that Ijiyangu’s country was Banjima country and that Ned Dhu and that line of his family were Banjima people, through Ijiyangu. That is why, in my opinion, when he was asked in cross-examination whether any of his grandparents or his parents “taught you law and culture for Nyiyaparli”, he answered with a firm “no”. The ancestor his mother had told him to follow was, in his world view, a Banjima ancestor. He was, in his world view, Banjima. But after the Federal Court determination, he was not, for the purposes of native title law, Banjima.

132    That is why, as Steven Dhu explained in cross-examination:

So when did you start following your Nyiyaparli line, Mr Dhu?---From the moment I realised that we were going to – if we wanted native title and identity in central land – central Pilbara, I had to follow where my apical belongs, which is Nyiyaparli

133    In my opinion, in this evidence Mr Dhu is describing where he understands the Federal Court has found his ancestor “belongs” irrespective of the understanding he may have had prior to the Banjima and Nyiyaparli determinations.

134    It is entirely understandable that, with this context, Steven Dhu would depose, in light of his family’s lived experience in the Pilbara (at [64] of his first affidavit):

To be told that we can’t identify as Nyiyaparli people and aren’t recognised by other Nyiyaparli people that they have accepted into the Karla [Karlka] structure is culturally offensive and disrespectful to my deceased ancestors and the living members of my family.

135    In the face of cross-examination about whether Steven Dhu saw Ijiyangu as Banjima or Nyiyaparli, or changed his mind about this, in my opinion Steven Dhu remained consistent in his evidence:

I follow the country where she belonged to. She is the mummy for the country as Nyiyaparli Banjima. So if she goes that line now, I’m going where my sister is.

136    It is correct that, in cross-examination, when Mr Dhu was asked to identify Ijiyangu’s country, and therefore the country to which he had a connection under traditional law, he began with areas of land within the Banjima determination, at the eastern edge of the determination area. That is the country which both Bonny Tucker and David Stock describe as “mixed up” between Banjima, Nyiyaparli and Palyku. Although I note he also referred to Fortescue Marsh, which is largely within the Nyiyaparli determination area. I do not consider his oral evidence was inconsistent with [6] of his affidavit evidence, which I accept. Asking witnesses who know country by sight and experience to identify areas by maps can be a fraught process and in my opinion that partly explains some of the descriptions given by Mr Dhu in oral evidence.

137    However, this whole issue of which determination Ijiyangu “belonged” on, and to which determination area her country “belonged”, was of course the whole debate before Barker J in Banjima (No 2). The debate was resolved predominantly on anthropological evidence, and against the arguments of the Banjima applicant who had put forward Ijiyangu as one of the Banjima ancestors. Indeed, as Barker J described it at [341] of his Honour’s reasons:

there is evidently an unresolved dispute between members of the Nyiyabarli language group and some members of the Banjima group as to the eastward extent of Banjima country and the westward extent of Nyiyabarli country.

….

The organisation of the Gumala Association was at least in part a reflection of the fact that benefits should be shared between members of the two language groups. That view of shared country has also been put forward by other researchers. Dr Palmer considered the idea that some areas of country are shared is consistent with his view that the customary arrangements whereby rights to country were articulated provided for claims to multiple areas of country. Moreover, rights were unlikely to be exclusive to one lineage, but would be shared by a number of individuals or descent groups who together comprised the country group.

138    In response to the suggestion that his connection through Ijiyangu was “broken”, Steven Dhu understandably became offended:

Do you accept that your claim to connection to Daisy as Nyiyaparli, through those three generations, has been broken?---There’s three generations. When it’s shared country, as I just said, you can go either way. If you understand law and culture, when you come from shared country, you can go either way.

Yes. I’m going to suggest you – and I would like you to – what you say to this – that, yes, you can follow your parents either way and you might follow your grandparents either way, but going back to your great-great-grandmother as the line to be Nyiyaparli, I suggest that that isn’t traditional?---As a white woman, you’re telling me that? You want to come and tell me that .....

I’m asking you to explain why it is?---It is the way of law and culture that you follow the line that you choose to go down when you’re ready. So when a law meeting come or whatever, like you were asking about, I go there and identify.

Okay. So you can identify as Nyiyaparli back through to your great-great-grandmother, even though no other person in that line has identified that way? That’s what you’re saying?---Yes.

139    With respect to the cross-examiner, there was an unfairness in these questions. They were premised on the identification of the applicants’ paternal family members from a time before this Court declared that Ijiyangu was not a Banjima person. That finding by the Court was inconsistent with the views of many people, and inconsistent with the way the Banjima claim had been put on behalf of the claim group by the representative body YMAC, as well as inconsistent with the understanding and beliefs of the Dhu family. However, it was based on the evidence as assessed by the Court in Banjima (No 2), and became the law for native title purposes. None of these proceedings would have been brought, or would have been necessary, if that finding had gone the other way. Therefore, to question Steven Dhu as to the Banjima identity of his elders and ancestors is to question on a premise made false by a decision of this Court.

140    Contrary to the suggestion in cross-examination, I find there is nothing untoward, or indeed unusual about “going back to your great-great-grandmother as the line to be Nyiyaparli”. The evidence shows other families have done so, including the Derschaw family, and witnesses such as Christina Stone accept the applicants as Nyiyaparli. There is also, in my opinion, no evidence to support the proposition that to “go back” to that line is not “traditional”. Indeed, the evidence of Mr Stock and Mrs Tucker makes it clear there is no difficulty with doing what the applicants seek to do. In a context where the language or group label that people have come to use over generations to describe their identity is contradicted by a finding of this Court in a native title context, it is not appropriate to contend the identification is not “traditional”.

141    Brendan Dhu gave similar oral evidence about the imperative to follow Ijiyangu coming from what his mother had told him:

Did anyone tell you could also go your mother’s way: Ngarluma?---Yes.

Yes. And did other members of your family go Ngarluma way?---My siblings did, yes.

Except for Brendan?---Except for Steven.

Sorry. Except for Steven. My apologies. So when did you go Banjima way? What was the – when was it you decided to go Banjima way?---When we had a conversation with Mum and asked, “Which way should we go?” And she said, “Follow your father.”

So was this around about the time of the Banjima claims being made, all those land claims being made in the area?---This was the early days. Yes.

142    And a little later he gave further evidence on this topic:

Thank you. So you had a clear path to identify as Ngarluma through your mother and, I think, also through your father’s mother, Margaret. Who was your father’s mother?---Margaret Lockyer.

And she’s a Ngarluma woman as well?---Correct.

So there were two clear lines there for – is it the case that your other siblings decided to follow that line for Ngarluma?---No, it goes back to what I originally said in the terms where we asked our mum which lines to follow. And she said that we follow our dad.

Yes. You and Brendan - - -?---And - - -

- - - like your other siblings?---I’m Brendan. Steven is the one you’ve spoken - - -

Sorry, sorry, Mr Dhu?---No, that’s fine. That’s fine.

But your other siblings, they followed their mother’s line?---Correct.

143    And also:

… You could have followed your mother for Ngarluma like your other siblings. You could have done that after Daisy wasn’t accepted as an apical for Banjima. That would have given you a pathway for native title, wouldn’t it?---It could have. But the way I saw was because we had started a journey to follow my father’s side, that was the right way to go. Because we would follow the same scrutiny if we went back to Ngarluma. That we would be told, “No, you can’t come here because you haven’t followed this path.”

144    I accept Brendan Dhu’s evidence, as I accept Steven Dhu’s evidence, that it was their mother who told them they should follow their father’s line, and that in their family this meant following their father’s line back to Ijiyangu, and to Ijiyangu’s country. And further, that in their family until the Banjima (No 2) decision, this also meant identification as Banjima.

Contemporary factors

145    However, I also accept that the “public face” of their identification as Banjima men may have compromised them in the eyes of some, because of their conduct in relation to the Banjima Trusts, and in the Gumala Corporation. I make several findings in this regard.

146    First, on the evidence, some of which I have extracted elsewhere in these reasons, it is clear there is resentment amongst some Nyiyaparli People that the applicants have sought and accepted monies from the Banjima trusts, and then have changed their allegiance only after the resolution of their dispute with the Banjima trusts required them to do so. That was the thrust of one of the lines of cross-examination in this proceeding, understandably so. The evidence discloses there is a sense amongst some Nyiyaparli common law holders that the applicants are chasing money, and this motivation is attributed to their applications to join Karlka and be recognised as Nyiyaparli People.

147    Second, there is the continued identification of Steven Dhu, in particular, as a Banjima person in the performance of his role in the Gumala Corporation. It is common ground the Gumala Corporation comprises people from three language groups – Banjima, Innawonga and Nyiyaparli, and arose from a time when the IBN native title claim was on foot. As Barker J observed in Banjima (No 2) in one of the extracts I have quoted above, the organisation Gumala was at least in part a reflection a view of shared country between the three groups. Some other descendants of Ijiyangu – such as some members of the Derschaw family – while also members of Gumala, have identified as Nyiyaparli in their membership documents for Gumala. This was contended to be significant by Karlka.

148    Third, it is apparent that on the evidence there are some inconsistencies in the approach of Nyiyaparli people to the mutual recognition criterion in the Nyiyaparli determination. For example, Mr Hall gives evidence in his affidavit that “whatever the community decides, that is the end of it”. But it is also clear from his evidence, and other evidence, that people are sometimes placed on the Register as common law holders through Board decisions and the appeal process, without the matter going to a meeting of common law holders or of the “community”. That is what occurred in relation to the Derschaw family, also descendants of Ijiyangu.

The Derschaw family’s entry on the Karlka Register

149    Mr Hall describes the recognition of the Derschaw family, through Uncle Billie Doodie Derschaw, as “a respect thing, for him only”, while acknowledging that the family are also “on IBN” – namely, one of the corporations arising from and related to the Banjima determination – but, Mr Hall deposes, “as Nyiyaparli People”.

150    The minutes of the 2018 meeting where the Karlka Board considered the application of the Derschaw family are in evidence. A letter in support of the application relevantly stated:

Whilst we note, many descendants of Yidjiangu (Daisy) have taken a Banyjima identity, the descendants of Les Derschow (being those children and grandchildren of Peter Derschaw, Joan Groves and Dale McDonald) have always stood by our Nyiyaparli connection. We have also never followed Wunna Nyiyaparli in their claims. This has meant that we have not been afforded benefits of those who are on the Banyjima claim, nor have we been given acknowledgement under Karlka.

(Original emphasis.)

151    The Minutes show that Victor Parker, Keith Hall, Francis Bung, Deborah Drage and Charles Tucker were present in their capacity as directors. Raymond Drage and Lindsay Yuline were apologies. The following resolution was passed unanimously in relation to 10 individuals, named as Arthur Dhu, Debra Dhu, Ray Dhu, Ratehi Hirini, Rangi Hirini, Lisa Hirini, Jahna Cedar, Darren Derschaw, Dwaine Derschaw and Peter Derschaw.

The KNAC Board resolves to refuse the membership application of the above as the Board does not accept they identify as a Nyiyaparli person and are recognised by others as a Nyiyaparli person

152    It would appear from the letter of support extracted above that those individuals with the surname “Dhu” did not form part of the Derschaw family application.

153    The Derschaw family appealed this decision. In a letter in support of that appeal, they said:

We the above mentioned person/s dispute that we are not accepted by the Nyiyaparli community as Nyiyaparli people. We were all accepted by Gumala and IBN as Nyiyaparli and our family head ‘Doodie’ was on the original Karlka Elders committee and Gumala and IBN boards. Our apical Yidjiangu was accepted by the community as Nyiyaparli in which Nyiyaparli then proceeded to get Native Title. Without this acceptance, determination by consent would not have been possible, which is a key criteria in membership eligibility of Karlka. We also note that Mrs. Bonney Tucker stated in the Banyjima Native Title case that Yidjiangu was a Nyiyaparli person. Whilst we agree that many of Yidjiangus descendents claim to be Banyjima, we have always firmly identified as Nyiyaparli.

Doodie is recognised as a Nyiyaparli traditional loreman and has family kinship and custodian connection to Nyiyaparli country, through his grand uncle Billy Swan. Our family still practices lore and culture, attending ceremonies at Yandeyarra community to which Mr. Brian Tucker, Ms. Erica Hall and Mr Noel Taylor can confirm.

154    I note Yandeyarra community is where Steven Dhu went through the law: see [31] of his first affidavit.

155    The Minutes of the Karlka Board from two meetings in May 2019 disclose the outcome of the appeal, under the Karlka Rule Book, from this decision. The Directors had changed by this time. Present were Bradley Hall, Charles Tucker, Edith Hall, Keanan Hall, Linda Parker, Lindsay Yuline and Victor Parker. All these people were present at both meetings. At each meeting (9 and 27 May respectively) resolutions were carried unanimously, in the same form:

The KNAC Board resolve to accept the membership applications of the above people as they are descended from a Nyiyaparli Apical Ancestor, identify as a Nyiyaparli person, are recognised by other Nyiyaparli persons and have a connection to Nyiyaparli country.

156    Included in the first resolution were: Peter Derschaw, Darren Derschaw and Dwane Derschaw.

157    Included in the second resolution were: Lisa Hirini, Rangi Hirini, Jahna Cedar and Ratehi Hirini.

158    Thus, all of those who appealed and who were originally rejected on the basis of mutual recognition were all accepted on the basis of mutual recognition less than a year later. On the evidence, what was emphasised was the identity of Ijiyangu as a Nyiyaparli woman, and connection through the Yandeyarra community. As Karlka submitted (against the applicants), Yandeyarra is outside the Nyiyaparli determination area so other than its role as a law centre for the wider Pilbara community, it is difficult to see how this factor was relevant to the Karlka Board’s decision. The only distinguishing feature from the applicants’ position appears to be that for the purposes of the (contemporary) organisations through which individuals may receive funds (Gumala and IBN), the Derschaw family contended they identified as Nyiyaparli and not Banjima.

159    Once again, I infer this evidence as a whole is capable of suggesting that matters other than Nyiyaparli traditional law and custom have influenced the decisions of the directors, and subsequently the views of some of the Nyiyaparli common law holders at the December 2020 meeting.

Mr Stock’s evidence about the applicants

160    It is not disputed Mr Stock is one of the most senior Nyiyaparli elders, and is also an important elder in the Banjima community. The Court accepts that is the case, and that his knowledge was relied upon considerably, together with the knowledge of Bonny Tucker, in the development of the Nyiyaparli determination. Mr Stock was the subject of much evidence and comment in the Banjima proceeding, although he was not called as a witness, which seems odd, given the amount of evidence referring to him. Indeed at one point Barker J says in Banjima (No 2) at [639]:

If David Stock were to have given evidence in the proceeding, in all likelihood this would have helped in the resolution of the immediate question whether Yandiguji was a relevant apical ancestor of some of the claimants. Mr Robinson plainly would have been assisted in that regard and so too would have Dr Palmer.

161    In this proceeding, Mr Stock gave some direct evidence about his opinion of the group to which the applicants belonged.

162    In his May 2021 affidavit (at [27]-[28]):

I have seen Steven and Brendan in town, in Marble Bar, when I run into them. We just say hello. I know them, but not as Nyiyaparli. I thought they was Palyku, because I know them as being from up that area. You have to follow where you are from. They are not from Nyiyaparli country, but close, like neighbours.

I think Steve and Brendan do not know which way to go. They need to go back to where they are from and follow that. It is hard for some of them young fellows having to learn both sides, going to school and all that, they lose their way and forget where they are from.

163    It became apparent when Mr Stock gave his oral evidence and was cross-examined, that he had two Nyiyaparli men present with him – Michael Stream and Lindsay Yuline. From what they said, they saw their function as assisting Mr Stock in giving his evidence.

MR STREAM: We’re just here to help Uncle David with the names and all that. That’s all.

MR EDWARDS: Right. Can you just tell me who’s in the room, please?

MR STREAM: Yes. I’m – I’m Michael Stream and that’s Lyndsay Yuline, and anything that’s helpful to deal with, we would like to help him because he’s our elder in the Nyiyaparli claim. Yes. So we’re just sitting in here, but he can talk to you guys. That’s fine. We’re just – like, he would know all the old people, but he wouldn’t know all the kids. That’s where the problem lies.

THE WITNESS: That’s right.

MR STREAM: Even though .....

THE WITNESS: I only know all the old people, not young ones.

164    This situation was undesirable to say the least, even if the men’s assistance was, as they asserted, limited to helping Mr Stock recall names. It was especially undesirable as it was not disclosed in advance. However, I do not consider Mr Stock’s evidence was, at base, anything but his own views.

165    The difficulty with some of Mr Stock’s views as expressed in his evidence is that they do not precisely reflect the determinations of this court about which Pilbara group holds native title in which area. That is not a criticism of Mr Stock at all, but it underlines the potential for the drawing of lines on maps for the purposes of native title to depart from traditional understandings of country, especially where those understandings are fluid because areas comprise places where the country of one group merges into the country of another.

166    For example, Mr Stock gave a witness statement in 2014, which was filed in proceedings WAD 6280 of 1998 and WAD 196 of 2013; namely, the two applications subject to the decision in the Nyiyaparli determination. He described “Palyku Nyiyaparli”, which he identified as some particular Nyiyaparli families:

There are people and an area that we call Palyku Nyiyaparli. The area is around the Marsh at the bottom end of the Fortescue River. This is around an area where the Palyku and Nyiyaparli countries meet up. It is Nyiyaparli country but close to Palyku country. A lot of the people from this area have family who are Palyku and Nyiyaparli and could be part of both groups so we call them Palyku-Nyiyaparli. The families belong to that one are people like Lindsay Yuline and Cheryl Yuline. They have the Palyku connection through their father, Jilany he was also called Johnny couple of Quid.

167    In oral evidence Mr Stock said he thought the applicants might be Palyku. It was unclear whether this was because of Mr Stock’s views about the association of Ijiyangu, or some other reason. In this 2014 witness statement he does not mention Ijiyangu’s descendants as people who cross between Palyku and Nyiyaparli. No doubt some of this is because of the artificial boundaries introduced by the native title system. However, Mr Stock does mention Bonny Tucker in this context in his 2014 witness statement. At [79]-[80]:

Milimpirrinha is a yinta that is a special and important place on Nyiyaparli country after that, that is where the Banjima come in and the Palyku they come in there too. It’s what we call a big place. That country is special for Bonny Tucker and her family. That area is quite mixed up. Everybody all meets there, sort of a boundary, between Banjima, Palyku and Nyiyaparli. At that end of the Fortescue Marsh they all come together, so it is sometimes hard to tell which language they belong to but we know their country. The Yindjibarndi they come in that Marsh too, they are down the bottom end. Culture way we have law and culture together. We help them if they come our way too. We share it.

To the north of Nyiyaparli country we have the Palyku country. This boundary is around Cloudbreak and Christmas Creek, it is on the north side of the river at Roy Hill Station. We call that boundary for Palyku and Nyiyaparli Pirtilya, whitefella name is Chichester range. On the other side that is Palykudarri people, we are not far apart. Bonny Tucker and the Yulines meet up around that area from Millimpirrinha, to 14 mile. They should talk about it- they need to make it clear it is their area. Northside is the Palykudarri people that area is stations such as Warrie and Hillside and Bamboo station.

168    Later in the same witness statement, Mr Stock talks about an apical ancestor whom the applicants submit supports the consistency of their accounts, not only with Mr Stock’s evidence, but also with the evidence of Bonny Tucker. This apical ancestor is Kitjiempa. Kitjiempa is an apical ancestor on the Nyiyaparli determination. She is also an apical ancestor on the Palyku determination. Kitjiempa is Bonny Tucker’s grandmother. Kitjiempa had a sister called Kuntuwaibungu. Bonny Tucker’s account is that Kuntuwaibungu’s daughter, was Ijiyangu.

169    And this is what Mr Stock said about Kitjiempa’s country (at [112] in his 2014 witness statement):

Kitjiempa was a Nyiyaparli woman also called Molly. She is an ancestor of Nyiyaparli elder Bonny Tucker and also of Nyiyaparli applicant Victor Parker. Her special area was near Fortescue Marsh in Nyiyaparli country. They belong to the end of the Marsh that Kitjiempa family. Also that Billy Swann speaks for that area because Billy Swann and Bonny Tucker mums were proper sisters. Nyiyaparli and Palyku and Banjima they all a bit mixed up at that place, they all come in around there Milimpirrinha. Kitjiempa belongs there, it is a bit Nyiyaparli coming into a bit of Palyku and a bit of Banjima too. That mob all used to go back to Mulga Downs station and mix up there and work there.

170    Thus, it is unclear how Mr Stock reasons the applicants might be Palyku. However, based on his own evidence about the “mixed up” nature of connection to country in the Fortescue Marsh area, in my opinion as a whole his evidence is not inconsistent with the perspective the applicants have put forward since the time they joined the Banjima claim. That is, that they were following the country of the ancestor of their father, as their mother instructed them to do. What language identity should be assigned to that country, and what language identity should be assigned to the ancestor concerned, are matters now determined by the categorising and somewhat inflexible approach of the Native Title Act.

171    At least in some of his answers in cross-examination, Mr Stock had no difficulty recognising the country to which Ijiyangu and her descendants were connected:

I’m talking about Billy Swan and his sisters. Did their country, did that include the Fortescue Marsh area?---Yes. Milimpirrinha.

Okay. One of those sisters, Mr Stock, her name was Susan Swan. Did you know a woman called Susan Swan?---Yes, that’s one of them.

172    Towards the end of his cross-examination, Mr Stock was getting tired; that much was obvious. However he continued to do his best to answer the questions put. He gave the following evidence:

And Steven and Brendan, does that mean – so they’ve got a connection to that family. So I’m talking about Ned and I’m talking about Billy Swan and Wanipa. Have Steven and Brendan got a connection with that line?---Yes. They all one mob.

And does that mean they’ve got a connection to that Milimpirrinha area?---Yes.

And so, Mr Stock, I think in – when you – on the milli that you wrote some words down for this court case, I think you said that you thought that Steven and Brendan were Palyku people; is that what you think?---Palyku.

Okay. And is that because of that link to that family? Is that why you say that?---Yes.

Okay. And so, Mr Stock, could – well, I will just ask you, could Brendan and Steven – do you think because of that link to that family, could they be Nyiyaparli people too?---Nyiyaparli?

Yes?---Next door neighbour to Nyiyaparli people.

Okay?---Next door neighbour.

Okay.

173    In my opinion, this evidence reflects Mr Stock’s own views about where Palyku country is, which may not necessarily be consistent with the determinations of native title as made. But the core point from this evidence for present purposes is that Mr Stock recognises the applicants’ connection, through Ijiyangu and her descendants, to more or less the same area of country that the applicants have described, some of which at least is in the Nyiyaparli determination area.

The applicants’ evidence about how they approached the Nyiyaparli group

174    Steven Dhu was cross-examined about how he approached his attempts to join the Nyiyaparli common law holders:

Yes. So when you decided to identify as Nyiyaparli, and before you made your application to Karlka, did you go and speak with any Nyiyaparli law men or elders about being Nyiyaparli?---No.

Did you start to go to any Nyiiyaparli meetings to get to know of the Nyiyaparli people?---As I have said in my evidence, I spoke to cousins that were dealing directly with the representative body to be included with the inclusion of the Ngarluma and Nyiyaparli claim, but we were told that we couldn’t participate.

This was when the Nyiyaparli claim was coming close to a determination, is that right?---That’s correct. Yes.

But you hadn’t joined the Nyiyaparli claim before then?---No.

And you – did you go and talk to anybody before you made your application when you decided you were leaving the B1 Trust and before you made your application to Karlka about becoming Nyiyaparli?---Yes, I did.

Who did you speak with?---Brian Tucker.

And who is Brian Tucker?---That is Bonny Tucker’s son.

Yes. And is that the only person you spoke with?---Timmy Parker.

Yes. And what did you tell them about becoming Nyiyaparli?---That now that Ijiyangu was on Nyiyaparli and we come from that shared country, I’m going to be claiming as Nyiyaparli.

Okay. Did you speak with anyone on the Karlka board about making your application and becoming Nyiyaparli?---No.

You didn’t speak with its chairman or chairperson?---No.

175    Brian Tucker was a key witness in the Banjima proceeding, identifying as both Banjima on his father’s side and Nyiyaparli on his mother’s side: see Banjima (No 2) at [353]. He demonstrated songs to Barker J in a men’s restricted evidence session: see [435]. I infer only a senior man would be permitted to give such evidence. At [437], Barker J accepted Mr Tucker was a “Law man respected by his community”, and accepted Mr Tucker’s evidence that

he has participated in some Nyiyabarli Law, because of his Nyiyabarli connections through his mother. He knows some Nyiyabarli songs and some of those songs were over the same part of the country as Banjima songs.

176    Timothy Parker was also an important witness in the Banjima proceeding and gave evidence as to activities such as hunting and fishing, ritual and customary practices, sites and importance of looking after country. I infer he was also regarded as a senior man. Therefore, Mr Steven Dhu’s evidence does suggest he sought guidance from senior men, at least one of whom was Nyiyaparli on one side, even if not from all people on the Karlka Board.

177    It was suggested to Steven Dhu that it may have been “culturally respectful” to have gone to the common law holders meeting. His response was:

It would have, but I was also through sorry business of losing my father. So I didn’t feel culturally respected by them.

178    I accept that evidence; even putting the recent death of their father to one side, as I find elsewhere in these reasons, the tensions at that meeting would likely have made the applicants feel extremely unwelcome.

179    Further, Christina’s Stone’s evidence is in my opinion important. It also explains why the applicants were reluctant to attend the December 2020 meeting in person. Ms Stone was not required for cross-examination even though she is a director of Karlka (or was at the time of trial). It is clear however that the applicants and Ms Stone have spoken about their wish to be accepted as Nyiyaparli common law holders through Ijiyangu. So to suggest the applicants did not consult anyone on the Karlka Board would be wrong.

180    I find the applicants have certainly made some efforts to speak to senior people, and other Nyiyaparli People, about their wish to be accepted as Nyiyaparli. The evidence is they also met with Mr Stock, although I do not consider either the applicants’ accounts of that meeting, nor Mr Stock’s account are sufficiently reliable to make findings about who said what, beyond the findings I make at [160] to [173] about Mr Stock’s views when he gave evidence.

181    On the one hand therefore there is hesitancy from the applicants because of how they anticipate they are perceived by some Nyiyaparli people. The evidence demonstrates their hesitancy has some basis in fact, because there is hostility from some Nyiyaparli people, plainly some influential people, about the applicants’ motivations to join their group. These overarching impressions support the findings I have made about why the second criterion in Sch 7 of the Nyiyaparli determination, and reproduced in the Karlka Rule Book, is not satisfied. With this level of scepticism and hesitancy, mutual recognition cannot at the moment be found to exist.

The evidence is not all one way from Nyiyaparli People

182    The applicants submit:

There is evidence that some Nyiyaparli people identify the Dhus as Nyiyaparli people according to these laws and customs: affidavit of Christina Stone at [4]-[10]; affidavit of Alec McKay at [4]-[10]; affidavit of Kathleen Hicks at [7]-[13]; affidavit of Colin Peterson at [8].

183    I accept this submission. As I explain, I find Christina’s Stone’s evidence should be given considerable weight, since she is now a Director of Karlka, and since none of her evidence was challenged. Ms Stone is Nyiyaparli woman through her mother’s side, descended from the apical ancestor Maynha. Relevantly her evidence is:

I knew all the Aboriginal families when I was growing up in Marble Bar. I remember Ned Dhu as a child and as an adult. I knew Steven and Brendan’s father Henry. I saw them around Marble Bar. I did not know Steven and Brendan was I was growing up. I have known Steven personally for about 7 years.

I was close to the Marble Bar families. Mum’s mum died when she (my mum) was young. The Dhu and Lockyer families took her under their wing and looked after her. Mum told me this. When I was growing up we were all like one family. When we started returning to the Pilbara in 2009, when we went to Marble Bar people still knew mum. People still called her Aunty and Nanna.

Mum always talked about the old people. She told me:

a.    she called Ned Dhu brother;

b.    Ned Dhu’s mother was Susan Dhu and that her maiden name was Swan; and

c.    Susan Dhu was a Nyiyaparli woman from the Fortescue Marsh area, the same as her.

Mum told me about Ijiyangu (Daisy). She told me:

a.    Ijiyangu was on the Palyku claim for a while and was taken off it;

b.    Ijiyangu was a Nyiyaparli woman;

c.    Nyiyaparli and Palyku people were the same people;

d.    she spent some time living with Ijiyangu’s son Billy Swan; and

e.    Ijiyangu was connected to the Dhu family through Susan Dhu (Swan).

I know that in 2018 Ijiyangu was accepted as an apical of Nyiyaparli and included in the Nyiyaparli consent determination.

I recognise Steven and Brendan as Nyiyaparli people because of their connection to Ijyiyangu and their connection to Nyiyaparli country around the Fortescue Marsh. This is close to the Banjima native title area and I have heard people say that it was a shared Nyiyaparli Banjima country.

I know that Brendan and Steven and their father were on the Banjima native title claim and were members of the Banjima trust. I know that they resigned their membership of the Banjima trust in 2019. This does not change my view about them being Nyiyaparli. I know lots of Banjima, Palyku and Nyamal people who are also Nyiyaparli people and members of Karlka.

184    Mr McKay is a Nyiyaparli man through his father, back to the apical ancestor Kitjiempa. Bonny Tucker was his father’s sister. Relevantly his evidence is:

I know Steven and Brendan very well.

I knew their father when he was born – their father and their mother. I am ten years older or more than their Dad. When their Dad was small he stayed with my old grandmother Florence Lockyer (Churnside) for a while. He spent his primary school days at Marble Bar. He was my cousin-brother. His father’s mother was my mum’s sister. I remember Steven’s Dad’s parents. Uncle Ned and Aunty Maggie. We just lost Steven’s grandmother. I knew them. We were close.

I have known Steven and Brendan since they were children. I saw them as kids when we visited the family.

I recognise Steven and Brendan as Nyiyaparli people. You are a Nyiyaparli person through your old people, like your grandmothers and grandfathers. When you talk about Nyiyaparli country, and Banjima country and Palyku country – they are all very close. They are next to each other. And the Nyiyaparli, Banjima and Palyku families are close too. They are mixed up. Steven and Brendan have the Nyiyaparli connection through their grandfather Ned and his mother Susie.

The Dhu family were from Cowra. That’s an outcamp on Mulga Downs station. It’s not far from Auski Roadhouse. Steven and Brendan’s great grandmother Susie, she married Billy Green. She married Teddy Dhu before that. She was at Roebourne before that. She raised all her kids around Cowra. We used to go to Cowra and see them. When old Teddy Dhu died the family moved to Marble Bar and Hedland. It was a big family, 12 or 13 kids.

Susie’s maiden name was Swan. I did know her mother’s name but I cannot remember it now. Her brother was Jackie Parker. I think she had a sister but I cannot remember her now either. She had another brother called Billy Swan. He was an old man when I met him, I was in my teens. I was told they were from around the Fortescue Marsh area. I grew up knowing these things. I was told about them by the old fellas that went to Marble Bar – Charlie and Donny Dhu, Aunty Florrie and Ted. I went to school with Ted at Marble Bar. Some of them went to work at Comet Mine when they moved from Cowra. I remember that Steven and Brendan's grandfather Ned went to work on the wharf at Port Hedland. His name was Edward but we called him Ned. They’re all my family.

I know that Steven and Brendan and their Dad were involved with Banjima. That does not change my view. They are Nyiyaparli. There are a lot of us that can go three or four different ways. I know many people who go different ways. I think you follow your grandmother’s side, that’s Blackfella way.

185    Kathleen Hicks is a Nyiyaparli woman through her father’s side, also through the apical ancestor Kitjiempa. Relevantly her evidence is:

I knew lots of Steven and Brendan’s family when I was growing up. All of Steven and Brendan’s grandmother and Poppy Ned’s children. There were lots of them – Uncle Jacko, Aunty Jan, Auntie Spuddy (Vicki), Uncle Sadi, Uncle Wally, Uncle Trevor and Steven and Brendan’s father Henry. I remember seeing Henry around Marble Bar and Port Hedland. They were my parent’s generation. There were lots of kids in the next generation too, including Stephen and Brendan.

I knew Steven and Brendan and their siblings when they were kids. I did not have much to do with them, but I knew their faces and who their family was. I met Steven again in the early 2000s, when I had returned to Port Hedland. I have not had as much to do with Brendan. I know their sisters Rachel and Anthea. I have not seen them for a while, but I know who they are.

I call Steven and Brendan my brothers. They call me sister. This is because their father and my mother were cousins and they called each other brother and sister. I am their big sister because I am older (52). We are the same mob. They are our family.

My mother’s name was Florence Hicks. She has passed away. Her mother and my grandmother was Violet Derschaw. My grandmother’s mother was Ivy. And Ivy’s mum was Ijiyangu (Daisy). Ivy had a brother and a sister. Her brother was Billy Swan and her sister was Nanna Susie Green. My grandmother Violet and my mother told me these things when they were alive. I did not know Ivy, Billy or Nanna Susie personally, they passed before my time. My grandmother Violet told me that Nanna Susie was Poppy Ned’s mother.

My Nanna and Susan Monaghan told me about the connection between Wanipa and Ijiyangu (Daisy). They told me:

a.    Wanipa called Nanna Susie Green sister; and

b.    Wanipa’s mother Kitjiempa and Ijiyangu (Daisy) were sisters.

I identify Steven and Brendan as Nyiyaparli people. This is because of their family. Their connection to Poppy Ned, Nanna Susie Green and their great-great grandmother Ijiyangu (Daisy). It is also because they are from the Pilbara. They are from here. They have lived here. How you are connected to a place? It’s your family, where you are descended from and where you have lived. You are what you are. Recognition is important too, recognition that a person is from that family.

I know that Steven and Brendan were part of the Banjima native title claim and part of the Banjima trust. That does not change my view about them being Nyiyaparli. They are in the same boat as me. I was part of the Banjima native title claim too. I went to Banjima meetings. This was because of my connection to Ijiyangu (Daisy). I am still part of a Banjima trust for descendants of Ijyiyangu (Daisy). It is called the B2B.

186    Finally, Colin Peterson. Mr Peterson deposes that he is over 80 years of age and:

I am a business man, for law and culture. I am one of the oldest now in the Pilbara. I am travelling soon to Leonora to help them out with business.

187     While Karlka sought to establish that Mr Stock was a more senior elder than Mr Peterson, I am satisfied that Mr Peterson is a very senior person and his evidence should be given considerable weight. Mr Peterson himself acknowledges Mr Stock’s position, as the extract of his evidence demonstrates:

I grew up in Nyiyaparli country. In 1941 my family came from the desert into Jigalong. Nyiyaparli people picked us up. I went to school there. I learned to speak Nyiyaparli there, Nyiyaparli people taught me when I was boy. I still speak it.

David Stock was at Jigalong when I was a boy. He is a bit ahead of me in age. We grew up together. This was during the war, when they bombed Darwin. David is the oldest Nyiyaparli left. He is a business man too.

I was there when David Stock when he got his native title, with the judge and the lawyers. I have got a different native title, mine is with Martu. I still go around for law business and do things on Nyiyaparli country.

I am uncle to Steven and Brendan Dhu. They are my nephews. I know their uncle Les. I call him brother. He stops in Tom Price. I always talk to him. He worked for a long time for the water supply on the hill on the highway. I always go and visit him. I know my nephews’ mother. I call her sister.

Steven and Brendan are Nyiyaparli. They want to get in. That is ok, they should be. They belong to the land. Their family has been part of Nyiyaparli, their old people. They have been gone a long time and I cannot speak their names. When I was working on Marillana Station I used to visit them. They were on Mulga Downs.

188    None of these witnesses were cross-examined. In the context of this trial, and taking account of the nature of their evidence, I find the absence of any cross-examination should be taken as a recognition by Karlka that their evidence is honestly given, and reliable. I find their evidence is persuasive and should be given considerable weight, especially because it is focussed on how people grew up and who they grew up with, where their families lived, what their family histories and language identities are, and which country they are connected to. It is not focussed on contemporary matters.

Findings on the applicants’ identity and connection to country

189    The following findings can be made.

190    It is clear, and I am satisfied on the balance of probabilities, that the applicants are descended from a Nyiyaparli apical ancestor. The Nyiyaparli determination gives Ijiyangu this status, whatever the anthropological opinions might have been before this time. On the evidence, there was clearly some initial uncertainty about how Ijiyangu and her descendants should be treated, because of the information about the language identities of her own ancestors, but also because of the proximity of her country to the borders of three groups which have been separately identified for native title purposes.

191    Dr Palmer is quoted in the extract of Mr McCaul’s report as stating:

There remains no certainty as to the language group identity of Daisy Yijiyangu or the exact extent of her country. Given the evidence I have considered above I am of the view that there is support for the view that both Daisy’s parents and consequently Daisy herself had customary rights within country east of the present Banjima claim area. This would be consistent with Daisy’s name ‘Yijiyangu’ which is, based on the field data I have considered above, a reference to country east of the Banjima claim. (Palmer 2011b:131)

192    Mr McCaul himself concluded:

I did not have a final opportunity to discuss Daisy again with Bonny, but her views are clearly on record based on the interviews with Kingsley Palmer. The information recorded from Bonny Tucker firmly associates Daisy Ijiyangu with the Nyiyaparli claim area, and it appears that other senior claimants accept that Daisy’s children also enjoyed rights and interests in that area, to the point of Gordon Yuline describing Billy Swan as “owner” of Milimpirrinha (McCaul 2016:47).

193    More importantly, this is consistent with the evidence of David Stock and Bonny Tucker.

194    Whatever the earlier opinions, for the purposes of Australian law, a person descended from Ijiyangu satisfies the first of the three criteria in Sch 7 of the Nyiyaparli determination. Ijiyangu is on that determination because the Court has found her country is within the Nyiyaparli determination area and she is Nyiyaparli.

195    I consider the applicants have been taught, and understand, where their ancestor’s country is. Like in all families and all oral teachings, emphasis on particular areas of country may vary, as might the parts which are visited and about which stories are told. The applicants have established on the balance of probabilities that they have, and have for a considerable period of time actively experienced and pursued, a connection to Ijiyangu’s country. They did so in a manner which was genuine, and substantive, more so than many witnesses in contested native title trials where connection to country is accepted on the basis of experiences only when those witnesses were children. The applicants should not be held to any higher standard than that generally applied for the determination of connection to particular country in native title trials. I might add that in many common law holding groups there will be individuals who may never have visited their country, or done so only rarely, and who may have little personal knowledge of stories about their country. However their inclusion in the group will enable them to learn from elders, and for their connection to country to grow and develop.

196    While there is clear oral evidence from Steven Dhu that their grandfather Ned Dhu identified as a Banjima man, what is less clear is why he did so. If, as I infer appears to be the case, it was because he considered he took his country through Ijiyangu, then Ned Dhu’s identification as Banjima would, in the particular and perhaps artificial world of native title, also falter after Barker J’s findings in the Banjima (No 2) proceeding. So if Steven Dhu’s acceptance that his father identified as Banjima is seen as some kind of concession or admission by him, it advances Karlka’s arguments no further. As Steven Dhu also said, just before this evidence, Ned Dhu never told him whether Ijiyangu was Nyiyaparli or Banjima, but did tell him that the area around Manyjilyjarra and Murietpa (Fortescue Marsh) was shared country between the Nyiyaparli and Banjima. It was his connection to the country with which his ancestor was associated that was the constant theme, rather than the language identity. To this should be added a rejection of reliance on evidence about what language Ned Dhu spoke – that could be explained by many cultural and social matters, and is also consistent with the mixing, mobility and intermarriage between Banjima, Palyku and Nyiyaparli of which key witnesses spoke.

197    What is clear is that the applicants identify as descendants of Ijiyangu, whom their mother told them was the ancestor they should follow. They have faithfully attempted to adhere to their mother’s wishes, and their father’s line, as well as their father’s own identification back to Ijiyangu. It is a decision of this Court which has led to their previous group identification being rejected, and to them having to reconceive of themselves as part of a different group. However, the evidence is that they have strong, and long-term connections and relationships with many Nyiyaparli People, and that some older, well-respected Nyiyaparli People (and those familiar with Nyiyaparli traditions) have no difficulty in recognising them as Nyiyaparli. They are not strangers; they have not “gone away” and “come back” to use Mr Stock’s language. There is no universal rejection of them by Nyiyaparli People. Rather, there is acceptance by key people. Within the Nyiyaparli group, views about them remain mixed. However, many of those views are mixed because of contemporary reasons, as well as some perhaps more traditional ones.

198    It is an agreed fact that applicants did not assert any identification as Nyiyaparli prior to applying for membership of KNAC in August 2019. The inference I draw from the evidence is that they did not, at the time of the trial in this proceeding, wholly identify as Nyiyaparli men. I accept Karlka’s submission about the importance of the agreed fact that in October 2019, Steven Dhu identified as a Banjima man when putting himself forward for election as a director of Gumala Corporation, when there was an opportunity to identify as Nyiyaparli. I agree this evidence has some weight.

199    I accept that there is ample evidence both men have received a number of payments from the Gumala Aboriginal Corporation as Banjima beneficiaries. The evidence is listed in Karlka’s additional evidence references document filed after the hearing and I accept it is accurate. Further, both men have since applied for assistance from Gumala, while identifying as Banjima men. It is also an agreed fact that Brendan Dhu applied to the Banjima Charitable Trust for assistance, from which both applicants are still eligible for assistance.

200    I accept the applicants have not attended any Nyiyaparli meetings, including cultural, heritage or community meetings, either prior to or since making their membership applications. However the vote of the common law holders itself indicates that they were unlikely to be entirely welcome. I infer this fact was obvious to them. The description of the December 2020 meeting by Christina Stone, which I accept, demonstrates that the applicants’ presence at Nyiyaparli meetings or gatherings was likely to have been inflammatory.

201    Therefore, I find on the evidence the applicants have proven, and it is the case, that they satisfy the first and third criterion in Sch 7 of the Nyiyaparli determination. At the time of trial, they have not proven they satisfy the second criterion of mutual recognition. There is insufficient evidence for the Court to find they satisfy either limb of the mutual recognition criterion.

202    None of the findings above foreclose the applicants striving fully to identify as Nyiyaparli in the future, and being accepted as such. Nevertheless, the mutual recognition process needs to be a genuine engagement on both sides. No doubt there may be challenges with that process because of these proceedings, and because of the views of some Nyiyaparli people. However, the applicants have a descent connection which they can choose to activate, a connection to country, and a community they can choose to engage with. They have key people within that community who support and accept them as Nyiyaparli People. As the respondents’ submissions noted, more than descent is involved. There is no legal or structural impediment to mutual recognition, but it will take time and good will on both sides. Those within the Nyiyaparli group who have reservations about the applicants must also act in good faith, and will need to respond appropriately to genuine attempts by the applicants to re-connect with the group Australian law has identified as the correct group for their ancestor, even if the applicants’ previous understanding of her connections was different.

203    Since I am satisfied the mutual recognition criterion is capable of being satisfied in the future, it is necessary to determine the applicants’ contentions about the December 2020 meeting. Otherwise those resolutions could be relied on to provide an impediment to future mutual recognition. Were resolutions 5 and 6 of the common law holders at the December 2020 meeting effective to preclude or foreclose the second criterion in Sch 7 being met?

204    In my opinion, the resolutions could only have this effect if they were made under Nyiyaparli traditional law and custom, which in my opinion they were not. My reasoning on this issue differs to some extent from the way the argument was put on behalf of the applicants, but in my opinion does not depart from the matters which were explored in detail in submissions at the hearing, and which underlie the applicants’ case.

The decision of the common law holders at the December 2020 meeting

What is the role of the “Approved Process” in r 5.3?

205    The applicants submit that notwithstanding the similarity in language between the definition of “Approved Process” in the Karlka Rule Book, and s 251B of the Native Title Act, the latter has no application after a determination of native title. Insofar as that submission applies to the way membership for the Nyiyaparli People is to be decided, I accept it. While having substantive content, s 251B is definitional, prescribing what “authorised” and “authorisation” mean within the Native Title Act: see my reasons in McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 at [423]-[425]. That is not to say, however, that the authorities which have considered s 251B, and have made observations about what is and what is not a “traditional decision-making process” may not be relevant.

206    Post-determination, it is the Karlka Rule Book which is the primary source, even if it follows the substance of s 251B. The use of an agreed and adopted process for the purposes of r 5.3(c) of the Karlka Rule Book is based on a condition or premise that there is no traditional decision-making process. That is, an alternative agreed and adopted process can only be used where, in fact that there is no traditional process. If there is a traditional decision-making process, that traditional process must be used. An example might be a process whereby certain elders, with certain status, make a decision.

207    The function of the “Approved Process” alternative in the Karlka Rule Book must also be emphasised. Its function is not to usurp or replace the contents of the Nyiyaparli determination, and Sch 7 and criterion (b) in particular. It is a more limited and distinct function. As its name suggests, the “Approved Process” has a procedural function; namely to prescribe how decisions are to be made to ensure the Nyiyaparli Register remains consistent with Sch 7 of the Nyiyaparli determination.

208    That is consistent with the requirement in s 141-25(2) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) which provides (with my emphasis):

If the corporation is a registered native title body corporate, the constitution must include eligibility requirements for membership that provide for all the common law holders of native title to be represented, directly or indirectly.

209    The basal requirement in the Sch 7, and relevantly criterion (b), remains that mutual recognition must occur “under” traditional Nyiyaparli law and custom. In this context, and although Sch 7, like the other parts of the Nyiyaparli determination, represent a declaration of the law, it is not a statute and care needs to be taken not to treat it as such. Determinations of native title are a form of declaratory relief granted by the Court: see eg Fortescue Metals Group v Warrie [2019] FCAFC 177; 273 FCR 350 at [43]-[45] (Jagot and Mortimer JJ) and at [569]-[570] (White J) and the cases cited therein. Thus, “under” in criterion (b) in Sch 7 means some akin to “by the authority of”, or “in accordance with” traditional law and custom. The mutual recognition must derive from traditional law and custom – not from contemporary opinion, animosity, favouritism, arbitrariness, or a majority view disconnected from Nyiyaparli traditional law and custom.

210    All r 5.3(c) of the Karlka Rule Book does, necessarily, is set out a process to be followed by the directors, and in one scenario by the common law holders, to decide what Nyiyaparli traditional law and custom says about the recognition of an individual or individuals as a Nyiyaparli person. That is why I describe it as having a procedural function. The voting of the common law holders must remain steadfastly governed, in substance, by the view of the common law holders about what Nyiyaparli traditional law and custom requires.

211    The intention of the Rule Book is, and must be, that the Register of Nyiyaparli People reflect all those who fall within the description of Nyiyaparli People in Sch 7 of the determination. The objectives of r 5 and alterations to that Register must be to ensure the Register conforms to, and is consistent with, that description.

212    The uncontroverted evidence about the adoption of an Approved Process at the December 2020 meeting came from the agreed facts. Indeed, the agreed facts establish (at [51] and [52]):

At the December Meeting the Dhu Statement was read out and displayed on screen. The Nyiyaparli common law holders then decided, in accordance with the Approved Process set out in the KNAC Rule Book, on the following resolutions:

Ordinary Resolution No. 4

There is no process of decision making under the traditional laws and customs of the Nyiyaparli common law holders, that must be complied with in relation to making a Native Title Decision. The Nyiyaparli common law holders agree to and adopt a process of decision making by majority vote by show of hands.

Moved by Christina Stone, seconded by Cheryl Yuline

Carried unanimously with 136 for and 0 against

Ordinary Resolution No. 5

The Nyiyaparli People and common law holders recognise Steven Dhu as a Nyiyaparli person.

Moved by Anthony Wilson, seconded by Noel Taylor

Not carried unanimously with 0 for and 106 against

Ordinary Resolution No. 6

The Nyiyaparli People and common law holders recognise Brendan Dhu as a Nyiyaparli person.

Moved by Keith Hall, seconded by Robert Monaghan

Not carried unanimously with 0 for and 118 against

The decision of the Nyiyaparli common holders was made in accordance with Rule 5.3(c)(ii) of the KNAC Rule Book, including in accordance with the Approved Process set out in Schedule 1 of that Rule Book.

213     In its final submissions Karlka sought to characterise this as a “traditional decision-making process”, by reference to the evidence of Leonard Stream. I reject that submission. Mr Stream’s evidence was:

We do not have a traditional decision-making process we have to follow; we vote by show on hands on these types of decisions. We do discuss things the cultural way, the community listen to the senior people talk if they want to talk, then we have our vote.

214    He was not cross-examined on this.

215    While it can be accepted that discussion may have occurred in a “cultural way”, that is not necessarily the same thing as a decision under traditional law and custom. Deciding in a “cultural way” may have aspects of more contemporary Aboriginal cultural practices. Whereas, a decision about group membership “under” traditional law and custom involves applying the normative rules that have been handed down from generation to generation since before white settlement, albeit allowing for some adaptation: see Helmbright at [139]-[141].

216    A majority vote on a show of hands can be undertaken as a procedural method to make a decision “under” Nyiyaparli tradition law and custom, if and only if those voting are making their decision based on their understanding about what Nyiyaparli traditional law and custom requires for group membership. The show of hands then expresses agreement or disagreement about what traditional law and custom requires. A vote can occur under r 5.3 where there is no traditional method of making a decision – such as a decision by certain elders, the example I gave above. If there is no traditional method, the common law holders can agree and adopt a method of making a decision. As the agreed facts prove, that is what occurred here, and the method agreed and adopted was a vote by show of hands, with the majority of the show of hands carrying the decision.

217    The fact that a majority vote by show of hands is the method by which traditional law and custom is applied would not impugn or invalidate such a decision. It is necessary for a rule book to prescribe how a decision is to be made – that is, to prescribe a method. Otherwise, group decision making could not function. Like many other rule books, that is what r 5.3 of the Karlka Rule Book does.

218    Thus, the underlying issue in the applicants’ contentions raises a different question – was this method of voting, while accepted as permissible under the Rule Book, used to make a decision about recognition of the applicants under Nyiyaparli traditional law and custom? That is what Sch 7 of the Nyiyaparli determination, and criterion (b), required.

What does the evidence disclose about Nyiyaparli traditional law and custom in deciding group membership?

219    Both parties accepted that the evidence of David Stock and Bonny Tucker was relevant to this question. There are also some anthropological opinions in evidence, which I discuss below.

Mrs Tucker’s evidence

220    The preservation evidence witness statement of Bonny Tucker in the Nyiyaparli claim was tendered. She described her country thus:

I speak for Nyiyaparli country around Weeli Wolli Creek and the Fortescue Marsh near the bottom end (downstream end) of Weeli Wolli Creek. We call the Marsh mangkurtu, which means area where the water comes down, though that word mangkurtu can be used for other areas too. That marsh runs from Roy Hill to Cowra, an outcamp on Mulga Downs station. I got this country through my mother’s line.

221    It is not entirely clear whether Mrs Tucker was referring to Cowra line camp, or another location called “Cowra”. I note that on Pilbara Map 2, Cowra Line Camp is just off the Fortescue River within the boundary of the Banjima determination area, and near a confluence of country determined to Banjima, Nyiyaparli and Palyku.

222    As to the way individuals can be seen as Nyiyaparli People, Mrs Tucker said:

A person is Nyiyaparli because their mother, father or grandparents are Nyiyaparli. It is through the blood.

They can follow a different group too and stay as Nyiyaparli. There is no rule that says you cannot be Nyiyaparli and Banjima.

My children all follow me as Nyiyaparli but some of them follow their father as Banjima too. But they’re still Nyiyaparli through me.

223    Just before this passage, at [50], in speaking about families it appears she was specifically asked about, Mrs Tucker had made it clear that according to her knowledge:

To be a proper Nyiyaparli you got to come back and see your elders, got to learn the right way to be Nyiyaparli, you got to know where you come from.

224    After discounting several pathways to being considered Nyiyaparli (such as birth on country, or speaking Nyiyaparli), Mrs Tucker said:

A Nyiyaparli person must also know their country; the important places and who that country belongs to. Nyiyaparli people need to know who you are and where you fit in. Some people don’t know too much, but that is where the elders help out. We can teach them the right way.

225    Mrs Tucker described the close relationships, through neighbouring country and marriages, between Nyiyaparli and Palyku, and Nyiyaparli and Banjima. She described the relationship between Nyiyaparli and Palyku language as “like two fingers: they are side by side”, but she emphasised their country is different although it does meet up in the hills called Pirtilya, “whitefella name is Chichester Range”.

226    As to the way authority is exercised in Nyiyaparli law and custom, Mrs Tucker said:

The elders for Nyiyaparli are me and Susie Yuline, Yandi [David Stock] and Gordon Yuline. We make decisions as a group together. If there is something happening on someone’s country then we have to listen to the right people who speak for that area. -We don’t vote, we talk it out and listen to the knowledgeable people. Sometimes it is not about how old you are, like my son. He is still young but he is an elder.

227    Steven Dhu also gave some evidence about the importance of Bonny Tucker’s understanding of who was Nyiyaparli. In his affidavit affirmed on 16 April 2020, he deposed:

Ijiyangu (Daisy) and her children were from Mulga Downs station. Their traditional country started at Munjina and continued to Martuyitha (Fortescue Marsh). It included Koodaideri. My maarli Ned told me that this was a shared area of country for Banjima and Nyiyaparli people. They camped and hunted between Mulga Downs station, Marillana station and Roy Hill station. Mulga Downs station and Marillana station are partly within the Nyiyaparli determination area and partly within the Banjima determination area. Roy Hill station is entirely within the Nyiyaparli determination area.

There is a YouTube video of the late Nyiyaparli elder BT singing a song that belonged to Billy Swan. The link is https://youtu .be/fmSgGO3Pxw8 I knew BT and recognise her in the video. After singing the song BT says

“That’s the song belong to my brother, Billy Swan. That’s a Ijiyangu son, brother, Billy Swan, my own brother. Me and him got mothers all sisters. I don’t know how come gotta be he gotta be Banyjima? He gottem Nyiyaparli people! That’s one he been singing all the time in Bamboo make us dance, all the boys been used to be dancing”

The song that BT sings in the video is for Poonda George which is tributary of Martuyitha and a culturally significant place in Nyiyaparli country.

My family and I have a strong cultural link to Billy Swan. He is my manyga (son) in Aboriginal culture because he was the brother of my great-grandmother Susan. What BT says about him in the video is important to me and my family. It is recognition from a senior Nyiyaparli woman that my family and I are connected to Nyiyaparli through him and Ijiyangu (Daisy). Her recognition of him as an important Nyiyaparli cultural figure in the twentieth century is very important as a matter of my family identity.

228    He was cross-examined about the meaning of what Bonny Tucker was saying in this video. It was suggested to him that in this video clip (which was played to the court and is in evidence) Bonny Tucker was not, in fact, recognising the applicants’ family, but rather she was expressing disappointment that Billy Swan (the brother of the applicants’ great grandmother Susan Swan), identified as Banjima rather than Nyiyaparli. Steven Dhu rejected this interpretation.

229    It is not appropriate for the Court to make findings one way or the other about what Bonny Tucker meant. There is an insufficient probative basis for the Court to do so, given Bonny Tucker has passed away and there was never any questioning of her directly about what she meant when she said what she did. Nor did Karlka proffer any positive evidence in support of the interpretation which was put to Steven Dhu in cross-examination; there was simply a suggestion made. I note that in her affidavit Bonny Tucker spoke about Billy Swann as being “like my big cousin-brother” and that they grew up together, in the context of describing Ijiyangu as a Nyiyaparli woman, and her relationship with Mrs Tucker’s mother. I decline to make any finding of the kind apparently invited by Karlka by reason of its cross-examination of Steven Dhu.

230    The point of all these matters in the context of this proceeding must be borne steadily in mind, now that Ijiyangu is named as an apical ancestor on the Nyiyaparli determination and has been the subject of a negative finding in Banjima (No 2). For the purposes of Australian law, Ijiyangu is recognised as a Nyiyaparli person, with country in the Nyiyaparli determination area. Steven Dhu’s evidence about Bonny Tucker’s statements on the video is only relevant, I find, to support the applicants’ case that they have always identified with what they have understood to be Ijiyangu’s country, and with Ijiyangu as the apical ancestor they should follow. While as I explain elsewhere, they strenuously disagreed with the Court’s negative finding about Ijiyangu in the Banjima (No 2) decision, and fought to be recognised as Banjima for many years, they are in law bound, as are Karlka, by what this Court has decided about Ijiyangu. Therefore, evidence such as that about Bonny Tucker’s statements is probative of the consistency of the applicants’ identification with Ijiyangu and their understanding of her country, but no more than that.

231    In summary, I find that Bonny Tucker’s evidence about how a person is Nyiyaparli places emphasis on descent but does acknowledge the importance of mutual recognition, although it seems to me her evidence tends to suggest such recognition is part of the function of elders with authority, rather than the whole group. It is noteworthy that she disclaimed voting as any part of Nyiyaparli traditions, which tends to confirm that taking a vote is not a traditional process. Her evidence also emphasises knowledge of country, which no doubt supports the last element of the Sch 7 criterion – connection to country. It is apparent she had no difficulty with people following both a Banjima and a Nyiyaparli line, but this was through different elders. Obviously the circumstance of this proceeding – generated by the native title system, were not within Mrs Tucker’s contemplation.

232    I do not consider Mrs Tucker’s evidence about Nyiyaparli traditional law and custom would preclude the recognition of the applicants under Sch 7. Conversely, her evidence does not tend to prove that the votes of 106 and 118 common law holders respectively to refuse to recognise, Steven Dhu and Brendan Dhu, were votes taken “under” traditional Nyiyaparli law and custom. Indeed, Bonny Tucker’s emphasis on the views of elders with authority would suggest the views of elders and people with authority is a key matter common law holders need to consider when they vote. As I explain below, the evidence suggests it is not the only consideration.

Mr Stock’s evidence

233    Mr Stock’s evidence as recorded in Mr McCaul’s connection report was that he would defer to Bonny Tucker about the right people for the area of Ijiyangu’s country.

234    In his affidavit affirmed 14 May 2021, Mr Stock described the way people could access rights in country thus (at [17]):

Under our law people can follow their mother or father as long as they have that connection. We can’t change that, we are not allowed. Our culture way we can never change it. Our law stays.

235    At [21]-[23] he emphasised the unchanging nature of the law and custom and, again, how people can access rights:

The laws and customs of the Nyiyaparli people have all been set down by the Mangunpa when the world was created. The Mangunpa put the law in the Nyiyaparli country. That is my dreamtime. Nyiyaparli people have been taught the laws from the Mangunpa by their elders and have passed it on to their children. This was from long before white people came to our country. Nyiyaparli people have always been taught to follow these laws and still follow them today if they are Nyiyaparli.

If you don’t know your culture then you don’t know Nyiyaparli. A very important part of being Nyiyaparli is to know your culture. That is how you are one of us.

Grandfathers and grandmothers on both sides they tell you where you come from and where you belong. You can follow your father’s or mother’s side, it is up to you. I don’t know why people choose, that is for them. I followed my mother’s side because that was my feeling, I followed my feeling. This is the culture way.

236    At [35], he deposed:

Just because you been through the law that doesn’t make you Nyiyaparli, you need to know our law and sing our songs. There are lots of laws and we all come together sometimes, but we each know our own stories. That is very important. It works like a map.

237    Mr Stock also spoke about how people who may have been away can come back (at [24] and [26])

Cultural way we all knew who we were, you didn’t have to go back. Now sometimes the young one have to go back to show a connection. That is the first step, to ask to come join us and come back. It is just the first bit.

….

Some young people got taken. They don’t know where they properly belong. It is important that they go back to their country and listen to the old people. The elders will know and help put them the right way, help them find their family again.

238    The circumstances that Mr Stock is speaking about are not, on the evidence, the circumstances of the applicants. As my findings above indicate, they are both Pilbara men, who know their family history and have for a long period of time acknowledged a connection to particular country.

239    At [5]-[8] of his affidavit affirmed 14 June 2021, Brendan Dhu deposed:

Between about 1999 and 2003 my father and I both lived at Tom Price for work reasons. During that time we went on dozens of hunting trips through Nyiyaparli country looking for kangaroo. We hunted kangaroo in and around Marillana and Roy Hill Stations a couple of times a month throughout the year during that time. These areas are part of Nyiyaparli Country.

I have hunted with my father and other family members on Nyiyaparli Country since I was a child. My brother Steven and I would regularly go onto Nyiyaparli Country with my father and his brothers and camp for extended periods. My brother Steven discussed these trips in detail in his affidavit filed in this claim. His comments about these family trips are the same as my recollection. These trips onto country were very important to me as a child. They were a way for me to learn about Country, and my family’s links to it.

I was told by Dad that his father Ned Dhu’s family line was from the Fortescue Marsh area. As Dad would put it - we were following our Apical ancestor Daisy, and her Country was the Fortescue Marsh.

Dad told me that our family links to the Fortescue Marsh and Daisy were explained to him by his father Ned Dhu, his uncle Wobby Parker and also his grandmother Bonny Tucker. My father used drop kangaroo meat off to Bonny Tucker after our hunting trips. He also told me that the Fortescue Marsh overlapped Banjima and Nyiyaparli county, and that culturally we and could go either way because of our links to shared Banjima and Nyiyaparli country.

240    His brother Steven had deposed in his affidavit affirmed 16 April 2020 that:

Throughout his life my father hunted and camped on Mulga Downs station, Marillana station and Roy Hill station. He has only recently stopping going to these places because of poor health.

…

Before I went to primary school I spent a lot time with my maternal grandparents. They used to take me to visit family and to law ceremonies. I travelled throughout the Pilbara with my maternal grandfather as part of his work with Mainroads. I remember visiting his family at Onslow and camping with him up on the tablelands (at places like Munjina and Wittenoom). Sometimes we would stay at places for up to a month or two. My maternal grandfather taught me a lot about country and about Aboriginal law and culture. He was a Mabarn man. That means he had power to heal people who were sick. Mabarn can also mean spirits or beings that are in the landscape and who can hurt you or make you sick. I got caught by these Mabarn twice when I was a kid and nearly died each time. Each time my maternal grandfather took me to Strelley station where other Marbarn men made me better. He tried to give his Mabarn powers to me but I could not take them, I just got sick. My maternal grandfather also told me about Billy Swan and how he was an important ceremonial man.

…

As a kid I remember hunting and camping on Mulga Downs station, Marillana station and Roy Hill station with my father and my uncles. We used to do this about three times a year.

…

My parents and grandparents instilled in me at an early age to be respectful of my culture and to be proud of my Aboriginality. When I was growing up I did not identify personally with a language group like Banjima, Nyiyaparli or Palyku. There is a Palyku determination of native title immediately to the north of the Banjima and Nyiyaparli determinations. I used to hear other people talk about the Roebourne mob, the Onslow mob, the Marble Bar mob or the Hedland mob. I did not really consider myself part of the Hedland mob because we travelled around so much. I considered myself an Aboriginal kid with connections on both sides of my family to the Pilbara. I only started to identify with a language group when native title started. I was not aware of other people choosing to follow a parent and identifying with a particular language group before native title.

When I was a young man I was told by a senior law man that I could move around the country provided I respected law and culture. He told me the law was for all Aboriginal people. When we attend law ceremonies we do not identify as Banjima or Nyiyaparli, we are organised according to our skin groups. Skin groups are a fundamental part of Aboriginal law and culture in the Pilbara. There are four skin groups: banaga; milangga; burungu; and garimada. At a law camp your skin group determines what roles you have and what jobs you do. My skin group is banaga. I have been told by senior men at law meetings that there are many people who have connections to the Banjima, Nyiyaparli and Palyku language groups. I know that their laws and customs are broadly the same.

241    Be that as it may, Mr Stock’s affidavit also makes it clear that in his opinion the applicants have not followed a customary way of seeking recognition:

If they say they are Nyiyaparli they should have come and sat with us with their grandmother or grandfather and spoke to us about it, the proper way.

242    Mr Stock’s opinion is that membership arguments “always come to the community” and this was “proper way”. That aspect of customary law is reflected in the Karlka Rule Book. As I have explained above, under the Nyiyaparli determination, what is critical however, is that the community relies on customary law – not contemporary animosity or contemporary favouritism for example – to make its decisions, even if they use a voting method. To adapt Mr Stock’s language, it is the proper way for a decision to be made because it has always been the community, guided by its elders and those with traditional knowledge, who have known what the customary rules are about who can be a member of that community.

243    In his 2014 witness statement, Mr Stock gives evidence about the customary way of deciding how people can have rights in country, and how a group decides membership. At [21], he stated:

People can go whatever way as long as there is that connection. We can’t change that, we are not allowed. Our culture way we can never change it. Not like government they change the law every day. Our law stays.

244    At [54]-[55], Mr Stock describes Nyiyaparli law and custom:

These Mangunpa laws tell us where our country is, what we can do on our country and rules about who can do it and how we do it. These laws put down rules for our ceremonies when boys become men. The Mangunpa laws also tell us such things as our skin groups, who we can marry and who we must stay away from. There are also laws about how we prepare and cook tucker and about times when certain people cannot eat some animals. These are the types of things our ancestors have done in Nyiyaparli country from the beginning and are set out in our laws. We still follow and teach our children these ways.

Mangunpa is the dreamtime now. We learnt about this in the holiday camp, during law time, we still do that now. Girls learn from old ladies and boys learn from old people. Before I was ever born, that has been going from next generation to next generation- the same stories. It goes both ways back to the old people and down to the young fella. That is why we have to take notice from that old fella he is the last one to say. Elders should have a strong voice.

245    How people decide who to follow was described by Mr Stock in the following way (with my emphasis):

Back in the station days everyone got friendly and then people start to get mixed up. But those days even those they mixed up they know where they come from.

The grandfathers and the grandmothers tell you where you come from - they tell you where you belong. These days your grandparents are even more important because many young kids live in town so they tell you where you are from. You have to follow that family line.

You can follow the father or the mother it was that way when I was growing up on the station.

A lot of young people say my mother belongs this way, for example Nyiyaparli and my father belong that way, for example Banjima - ‘where do I go?’ But as long as there is no overlap they can go both ways. It is the same culture way - you can’t throw away your country, it belongs to you.

You can’t take away that connection. People choose which way to follow, I don’t know why they choose; it is up to them. It is like that across the board. If there is a way it is up to you, we can’t shut the door. You go this way or that way if you want to. This has been the way, back in the station days it was the same thing. I am not talking about native title I am talking culture way. It doesn’t matter how far back you go if there is that line you can follow it.

246    Mr Stock used his own daughters, whom he stated follow their mother’s line, as an example:

My daughters who live in Roeboume stay on their mother’s side but they can come in to Nyiyaparli if they want. If they want to come in, they will have to go through the mob. They would speak to me first. They can be Nyiyaparli through me and nothing can stop them.

247    At [69] of this affidavit, Mr Stock made a similar point to the one I have extracted above from his 2021 affidavit, in terms of what the situation is for those who don’t really understand where they belong:

A lot of young people are mixed up these days, especially the ones who went to Moore River. They got the paper that says they were born somewhere but they don’t know where they properly belong. It is important that if they come back that they listen to the old people who can help them find their family again. The old people are the ones who used to keep it straight but these days sometimes the young ones trust the paper more. That native title is the one that has made it difficult, it makes it hard between people. In the old days we all get together in the river and people know where they belong. You had to be very straight.

248    As I have found, the applicants are not in this category, in the sense that they have always known their country, and their family and their ancestors. However this case is living proof of Mr Stock’s statement that “that native title is the one that has made it difficult”.

249    In summary, Mr Stock’s evidence confirms that contrary to some of the suggestions in Karlka’s evidence and submissions, in Nyiyaparli customary law descent from an apical ancestor can be from “far back”, and people have a choice which side of the family they follow. However his evidence is also clear that an important aspect of Nyiyaparli customary law is that people seeking to be accepted as Nyiyaparli “go back”, ask to come and join the Nyiyaparli group, spend time with the elders, and establish that they know, or are willing to learn, Nyiyaparli culture. There are echoes of this in Bonny Tucker’s evidence, extracted above.

250    It seems apparent from other evidence (for example Kathleen Hicks’ affidavit) that what a particular individual needs to do to secure mutual recognition may differ considerably. I find that the applicants’ prominence in the Banjima claim and their prominence in disputes with the Banjima PBC about their entitlement to funds appear to have affected what some Nyiyaparli common law holders consider the applicants must do to “prove” themselves as Nyiyaparli. I find it affected those who were active and vocal in the Karlka meeting in December 2020. As I explain below, I do not consider these additional factors are sourced in Nyiyaparli traditional law and custom. The applicants are well known to many Nyiyaparli common law holders and are related to many of them. Steven Dhu is an initiated man, and on his evidence initiated in the same places and under the same laws as men who may be Nyiyaparli common law holders. As Steven Dhu said, these traditional processes are Pilbara traditional processes.

251    I do not consider Mr Stock’s evidence about Nyiyaparli traditional law and custom in relation would preclude the recognition of the applicants, or supports a characterisation of the voting at the December 2020 meeting as a decision made “under” Nyiyaparli traditional law and custom. Conversely, his evidence does not tend to prove that the vote of 106 and 118 common law holders respectively to refuse to recognise, Steven Dhu and Brendan Dhu, were votes taken “under” traditional law and custom.

The anthropological opinions

252    None of the anthropologists whose opinions (or portions of opinions) were tendered in evidence were called as witnesses. As with the lay witnesses, I have proceeded on the basis that neither party challenges the reliability or accuracy of the anthropological opinion evidence which was tendered, although each party sought at times to have the Court place greater weight on some aspects than others.

253    I begin with the extracts from the Nyiyaparli connection report. Dr Daniel Vachon and Dr Sandra Parnell were the authors of this report. As I understand it, it was at least in part these opinions that led to the three part criteria in Sch 7 of the Nyiyaparli determination.

254    In discussing what Nyiyaparli law and custom says about membership of the claimant group, the authors state:

a)    for adult membership in the broader Nyiyaparli group, it is necessary but not sufficient for an individual to self-identify as Nyiyaparli;

b)    equal weighting is given to patrifiliation and matrifiliation in the assertion of a Nyiyaparli identity;

c)    whether through patri- or matri-linkages, the existence of an ancestral (usually grand-parental) connection to Nyiyaparli country is an essential precondition in gaining membership in the broader Nyiyaparli group, applied to all generations of Nyiyaparli people;

d)    such membership to the broader group is mediated, most often as this is expressed by senior claimants, by a living or deceased individual’s affiliation with one of the three Nyiyaparli languages or the category Nyiyaparli Palyku and with an associated area or site. Such an affiliation provides an individual with an additional personal and intra-language group identity;

e)    as discussed in more detail in section three, individuals also express a connection to Nyiyaparli lands and the claim area on the basis of a number of other criteria, including birth-place, the ‘conception site’ of one’s maalyi or personal totem, place of initiation and the burial place of an antecedent. None of these criteria, however, serve as a pathway justifying a person’s identity as Nyiyaparli;

f)    an acknowledgement, typically by senior Nyiyaparli men and women, of those individuals who can appropriately identify as Nyiyaparli, according to their genealogical ties and their more specific connections to Nyiyaparli country;

g)    connection to Nyiyaparli country also provides the individual with a broader, regionally-based, social identity.

(Emphasis added; footnotes omitted.)

255    At [86], the authors explain why more than descent is at work:

Thus, in following the above criteria or ‘laws of connection’, Nyiyaparli men and women repeatedly assert their traditional relationship to country, as they have culturally constructed ‘country’, as they perceive its culturally-constructed historic, human (including Dreaming) elements. At the same time, the structure of authority is continually being reaffirmed. In other words, an individual would not be following traditional Nyiyaparli laws and customs by simply pointing to a welfare record as ‘proof’ of descent from some old Aboriginal person who had some recorded association with a place on the claim area. While ‘descent’ is one element in appropriately asserting Nyiyaparli identity, it is, necessarily, a culturally contextualised element. A genealogical tie to a deceased Aboriginal person is meaningless in itself unless someone knows just who is this ‘apical’, what is his or her story, where is this place he or she is associated with, and what are the indigenous associations of this place.

(Original emphasis.)

256    In this report the authors also note Ijiyangu as one of the apical ancestors who has “varying levels of acceptance” amongst the claim group members, but at the time of the report were not named as apical ancestors. This aspect of the chronology is not unimportant, nor is the opinion just referred to. Descendants of Ijiyangu did not fit readily into the Nyiyaparli group, and – as became clear – nor into the Banjima group.

257    Next is an extract from a report of Mr Kim McCaul, described as “Additional Connection Material”. Mr McCaul makes the general point at the start of this extract that:

When claimants are confronted with individuals or families who can claim connection to a recognised Nyiyaparli ancestor on the one hand, but on the other hand are personally unknown to other Nyiyaparli people and have no or only very limited experience of Nyiyaparli country, membership can become contentious.

258    Mr McCaul continues:

Claimants readily accept those family members who they knew prior to the removal or who maintained some form of connection, but are wary about family members who are still distant from the area or have only established connections in recent years.

259    This means, Mr McCaul states that families or individuals may need to “activate and develop their incipient rights through appropriate social actions”. He states that this includes

re-establishing links with other Nyiyaparli people; learning about Nyiyaparli traditions, especially the skin system and kinship relationships; participating in Nyiyaparli social affairs, including meetings and ceremonies; and visiting and learning about Nyiyaparli country. In the absence of such appropriate social actions, Nyiyaparli elders seem to be prepared to not recognise individuals as Nyiyaparli, even while acknowledging that they may have a Nyiyaparli ancestor. I do not consider that such a situation had a traditional equivalent, but in my view Nyiyaparli people are drawing on traditional principles to resolve the issue, including through the kind of indicators people look for in support of Nyiyaparli identity (reconnection with ceremony, kinship and social organisation and country) and by leaving the decision making with a designated elders group.

260    This opinion is consistent with the thrust of the evidence of Mr Stock and Mrs Tucker. There must be involvement; people must “come back”, and “listen to the old people”, to learn about their customs and traditions, and to learn about all of the group’s country. That is what traditional Nyiyaparli law and custom required; and that should have been the focus of the common law holders’ voting decisions at the December 2020 meeting.

261    Not only is this element presently absent in the case of the applicants as a matter of fact, I am not satisfied on the balance of probabilities that these considerations were the basis for the 2020 December vote.

The lay evidence in this proceeding

262    Below I set out the affidavit evidence of each party’s witnesses about what occurred at the meeting, and in some cases, why the individuals voted as they did. Some of the evidence goes beyond the individual’s own opinion to expressing opinions about what others in the room thought, or the views they appeared to hold. There was no objection to the admission of this evidence, but I give it little weight. None of these witnesses, aside from David Stock, were cross-examined. That placed the Court in a somewhat difficult position in terms of determining the reliability of the evidence. I have inferred from the absence of cross-examination that the parties are content for the Court to proceed on the basis that each witness was, relevantly, giving honest evidence to the best of their recollection and there was nothing especially unreliable about their account of what occurred at the meeting. Of course, at an event such as this, individuals who attend may have quite different perspectives on what occurred and why.

The applicants’ evidence about the resolutions

263    Ms Stone deposed:

Someone read the resolutions out. I think it was Bradley Hall or one of the Karlka lawyers - Kelsi or Lisa.

Charmaine Sinclair and Tammy O’Connor spoke with the microphone in favour of recognising Steven and Brendan. David Moses was sitting in the same row as me. He sang out “They alright. They Nyiyaparli”.

Keith Hall got up with the microphone and spoke against it. He said that Brendan and Steven claim to be Banjima.

I heard other people call out during this part of the meeting. I heard someone say Steven and Brendan claim to be Banjima.

The meeting was asked to vote on the resolution.

I did not vote in favour of recognising Steven and Brendan as Nyiyaparli

Before the vote, a Karlka member walked over to me and showed me a text message on her phone. The message said not to vote in support of Stephen because they will see them in court. I don’t know who sent the text message.

The message was part of the reason I did not vote to recognise Steven and Brendan. The other reason is that I felt intimidated by the yelling at the meeting. I have been to Nyiyaparli meetings in the past that have ended up in fights. I have been attacked at meetings before. I was worried that if I voted in support and the resolution was successful then there would be a fight. I chose to abstain instead.

Karlka’s evidence about the resolutions

264    Mr Stream’s evidence was:

Most people felt they were Banjima, and they were just trying to become members to get money. Some of our people spoke about how they had never been involved in our community and Steven had said some bad things about Nyiyaparli people in the past. There was hurt in the room. I feel hurt by all this.

265    Keith Hall’s evidence was:

I got up and spoke on the microphone at that meeting about my experience with GAC and IBN and how the Dhu family, including Steven, always identified themselves as Banjima.

It is very important that the people recognise you as Nyiyaparli. Very important under our law. The Nyiyaparli people did not recognise them at that meeting. No one voted to support Steven or Brendan. This is something we decide as a people, not the courts.

Uncle Billy Doodie Derschaw, who is part of the same family from the old lady Daisy, is there in KNAC out of respect. His family followed him, joining us. It was just a respect thing, for him only. Uncle Billy’s family were at the meeting, and they did not stand up at the meeting to support the Dhu’s. The Derschaw family spoke and did not want Steven or Brendan to be in Nyiyaparli because they have always been in Banjima. To me, that is really saying something.

Those Daisy descendants, just the Dershaw family, who are all descended from Uncle Billy (Peter) Dershaw, they are with us on KNAC, but that is different. That family are also on IBN, through the Niapaili Aboriginal Corporation as Nyiyaparli people. They always said they are Nyiyaparli, and we recognise them. They are not on there because they descend from Daisy. That is not enough. We all know that. That is our law. And even they do not support Steven and Brendan.

266    Lindsay Yuline said:

A few people spoke about that agenda item and the Dhu applications. There were microphones out in the crowd so the people could talk. I did not talk at the microphone I spoke in my family group.

The community voted to not identify or recognise Steven Dhu or Brendan Dhu as Nyiyaparli people. It was unanimous- no one voted to support them. They were not recognised.

I do not know who Steven or Brendan are. I might have seen them around, I don't know, but I do not know them. I never knew them as Nyiyaparli. I always heard of them as Banjima, that is what I was told.

267    Mr Stock did not attend the meeting in person, but attended by telephone and voted (I assume through a proxy since the vote was by show of hands). His affidavit evidence was:

I did not vote to recognise Steven and Brendan. I do not recognise Steven and Brendan as Nyiyaparli people, I thought they were Palyku or maybe Banjima, from all up that way.

At meeting the Nyiyaparli community voted to that they do not identify or recognise Steven Dhu or Brendan Dhu as Nyiyaparli people. I heard that.

268    Mr Stock was cross-examined and I deal with aspects of his evidence in cross-examination below.

269    In my opinion the evidence discloses on the balance of probabilities that the voting at the December 2020 meeting was not guided entirely or wholly by Nyiyaparli traditional law and custom. It was guided by negative opinions about the applicants because of their receipt of monies from the Banjima trust, and their continued identification as Banjima in some contemporary settings, of which a number of common law holders were aware. In my opinion there may also have been personality issues and differences at play, since the atmosphere at the December 2020 meeting was, I find, highly charged. I accept the evidence of Christina Stone, who is now a director of Karlka, appointed at the December 2020 Annual General Meeting. Her evidence about why she felt intimidated and did not vote in favour of the applicants, and indeed did not vote at all, is persuasive, and was not challenged.

270    The applicants have established that the decision of the common law holders at the December 2020 meeting was not a decision made under Nyiyaparli traditional law and custom. Not because of the voting process, as I have explained, but because they have proven on the balance of probabilities that the factors which were likely to have driven the voting were more contemporary factors. This is apparent from the affidavit evidence, and from a comparison with what occurred with the Derschaw family.

271    There was no evidence that those who voted against the applicants at the meeting did so because they had considered whether or not the applicants knew Ijiyangu’s country and had a connection with it, whether or not they knew Nyiyaparli stories or customs, whether or not they had spent time with elders, or had proven themselves willing to learn more about Nyiyaparli country and Nyiyaparli customs. There was no evidence that the kinds of matters about which Bonny Tucker spoke, or about which David Stock spoke back in 2014, were the matters driving the voting against the applicants at the December 2020 meeting. To make that finding is not to impose any burden of proof on Karlka. The burden of proof lay with the applicants. However evidence about why people voted as they did lay largely with within the knowledge and ability of Karlka to obtain: see Blatch v Archer (1774) 98 ER 969, cited in Liberty Mutual Insurance Company Australian Branch trading as Liberty Speciality Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 at [343]. Karlka did adduce evidence on this matter, and it went largely to contemporary reasons.

272    The exception is the evidence of David Stock himself. I am satisfied his evidence does establish that he voted for reasons which were in accordance with his understanding of traditional law and custom. He was assessing the applicants from a traditional perspective, and he voted accordingly. However, on balance, I accept the applicants have proven that more contemporary motivations drove much of the rest of the voting, and have proven there is no evidence of decisions being based on traditional Nyiyaparli law and custom.

273    Therefore, I find that the voting on resolutions 5 and 6 at the December 2020 meeting, against the recognition of the applicants, were not decisions “under” traditional Nyiyaparli law and custom. They were decisions driven by more contemporary considerations. The applicants are entitled to relief which ensures those resolutions have no continuing effect.

Was there a material misunderstanding by those who voted about the applicants’ identity?

274    The applicants base their contention about the reviewability of resolutions 5 and 6 on Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 per Dowsett J at [270]. I accept his Honour left open the possibility that could occur by analogy with oppression actions by minority shareholders. Karlka did not submit that the resolutions were not reviewable by this Court. Instead, citing Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83 at [7] Karlka submitted there needed to be something at the level of bad faith, arbitrariness or capriciousness, given that Karlka was acting as trustee of the native title.

275    However even if those propositions are accepted to apply to an exercise by Karlka of any discretionary powers under the Rule Book, what is challenged here is the decision of the common law holders at the December 2020 meeting. Karlka appears to defend that decision, and resist orders against it compelling it to enter the names of the applicants in the register of common law holders, a register for which it is responsible. But this is not a case about membership of Karlka. Membership consequences may flow in due course, but this is a case about the decision of the common law holders, which is required to accord with Sch 7 of the Nyiyaparli determination.

276    The Karlka Rule Book itself contemplates that a Court may make a decision about membership of the Nyiyaparli People. The Court has jurisdiction to do so under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), at the least because there is a matter arising under the Native Title Act about the application of a determination of this Court under s 225 of the Act. There may be other sources of jurisdiction. Nevertheless, that source is sufficient. This approach is not inconsistent with authority: see Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 at [40] and CG (deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466 at [43].

277    While it might be accepted as Karlka submits that a Court should be very cautious in exercising powers which effectively take control of a membership decision out of the hands of the common law holders, again, the Rule Book contemplates that may occur. I accept caution is needed, for ultimately the common law holders need to function as group in their native title decision making and outside intervention may well not be conducive to the ongoing functionality of a group.

278    However as Dowsett J hinted, by reference to minority shareholder actions, there are situations where majority rule can be oppressive in a legal sense, and have unjust outcomes. One such occasion is where individuals are excluded from a native title-holding group for reasons that are not consistent or compatible with the criteria for membership of that group, as declared by this court and by reference to the traditional law and custom of the group.

279    Those matters explain why I consider it appropriate to take the ultimate course I have taken in this proceeding.

280    However, on this second contention, I would not accept the applicants’ submission as it was put. There was no “material misunderstanding” that the applicants were Banjima. As I have found above, there was a contemporary factual foundation for the proposition that the applicants had identified, and continued to identify, as Banjima people. That understanding was well open on the material, for the reasons advanced by Karlka in its submissions at [31]-[35].

281    The difficulty, as I have explained, is that these understandings all stemmed from contemporary matters driven by native title, and did not stem from matters about what Nyiyaparli law and custom required for people to be accepted into the Nyiyaparli group. That is especially so when, as Mr Stock made clear in his evidence, there was a considerable degree of mixing up between Banjima, Nyiyaparli and Palyku.

Should a declaration be granted that the applicants are Nyiyaparli people?

282    There may be some circumstances where it will be appropriate for a Court to decide whether an individual meets all aspects of the criteria for membership of a native title holding group, and if satisfied on the balance of probabilities, to grant declaratory relief to give effect to that finding. This is not such a case. It is apparent that I do not consider there should be any declaratory relief to the effect that the applicants are Nyiyaparli people. They have not proven that at the time of trial they met the second criterion in Sch 7; namely that of mutual recognition.

283    However, I have accepted the applicants’ ultimate contention that resolutions 5 and 6 at the December 2020 meeting were not made “under” Nyiyaparli traditional law and custom. There should be a declaration to that effect.

CONCLUSION: WHAT NEEDS TO OCCUR

284    Mr Stock gave some evidence in cross-examination which, with respect, goes to the heart of what is likely to need to happen before any further decision-making process by the Nyiyaparli common law holders:

And, Mr Stock, so what did you say to them about wanting to join Nyiyaparli?---Well, I told them they got to go back to the group, have a meeting with us and the group.

Did you tell them - - -?---But they didn’t do that.

Just want to stay there just for a little bit, Mr Stock. Did you tell them that you supported them?---No, I had to wait for my group - - -

Sorry, I missed?--- - - - to say that.

I just missed that last little bit, Mr Stock. Can you just say that again, please?---Well, if they were to bring that issue to the mob – to the group, and we go from there.

285    In my opinion, both the applicants and those within Karlka need to take heed of Mr Stock’s words.

286    The mutual recognition criterion of the Sch 7 criteria should be capable of being met in respect of the applicants. Depending on how the applicants engage with those Nyiyaparli common law holders who have doubts about them from here on, the evidence suggests it might be incompatible with Nyiyaparli traditional law and custom for recognition to be withheld permanently. However, the evidence also suggests that the applicants may not yet have done enough to demonstrate their commitment to a Nyiyaparli identity, to learning about Nyiyaparli traditional law and custom, and to learning about all of Nyiyaparli country.

287    For this reason, I do not consider that any relief beyond declaratory relief is presently appropriate.

288    My present view is that the parties might consider engaging an external mediator to assist them in attempting to agree what the applicants need to do, and what the Nyiyaparli people need to do, to work towards genuine mutual recognition. Mutual recognition will mean effort and compromise on both sides, not just on the side of the applicants. There is clearly support for the applicants within Karlka itself, from people such as Ms Stone.

289    In a situation such as this, it is not for the Court to impose a process, or dictate an outcome. The applicants, as men who seek a true Nyiyaparli identity, and the Nyiyaparli common law holders, as a community whose traditional law contemplates it will accept those with the appropriate descent line and connection to country who come back to the community with a willingness to learn from elders about their country and law and custom, need to engage constructively to resolve what can only be described as a tragic situation brought about by the imperfections of the native title system.

290    The applicants have been partially successful. It was necessary for them to bring this proceeding, given the position taken by Karlka. They have not obtained the precise relief they sought, but the evidence and arguments they made contributed to, and were relevant to, the relief granted. Accordingly they should have 75% of their costs of the proceeding.

Associate:

Dated:    29 November 2021

ANNEXURE A