FEDERAL COURT OF AUSTRALIA

Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620

ORDERS

THE COURT ORDERS THAT:

1.    The application by Aaron Stuart and others in Action SAD38/2013 be dismissed.

2.    The parties in Action Nos SAD78/2013 and SAD220/2018 confer with a view to providing the Court with minutes of the orders to be made to give effect to these reasons.

3.    The matter be adjourned to a date and time to be fixed for the making of orders.

4.    The interlocutory application of Nappamurra Pty Ltd filed on 24 December 2020 is adjourned to the same date and time.

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

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    This judgment concerns overlapping applications for the determination of native title over the town of Oodnadatta in the far north of South Australia and surrounding areas including the stock reserve known as the Oodnadatta Common. Oodnadatta is approximately 160 km south of the border between South Australia and the Northern Territory.

2    There are three applications. The Arabana People filed an application on 1 March 2013 (the Arabana No 2 Application) (SAD38/2013). By that application, the Arabana seek a determination of native title over two separate areas, identified as Part 1 and Part 2 respectively. The Part 1 area is near Marree. A determination of native title has been made by consent over the Part 1 area (Stuart v State of South Australia (No 3) [2021] FCA 230). The part of the Arabana No 2 Application which concerns Oodnadatta is known as “Arabana No 2 (Part 2)” but, for the most part, I will refer to it in these reasons as the “Arabana Claim”.

3    The area which is the subject of the Arabana Claim is bounded by the black lines in Map 1.

Map 1: Area of the Arabana No 2 (Part 2) Application

4    As is apparent, the Claim Area is relatively small, comprising less than 150 km2. Its east-west length at its longest point is approximately 25 km and its north-south length (ignoring the “protrusion” on the southern boundary) is approximately 7.2 km. The Claim Area comprises the township of Oodnadatta Common, the airport and an area held by the Aboriginal Land Trust (the ALT) established under the Aboriginal Land Trust Act 1966 (SA).

5    The Walka Wani People, who are comprised of Lower Southern Arrernte and Yankunytjatjara/Luritja People, have filed two applications. The first (SAD78/2013) was filed on 12 April 2013 and sought a determination of native title in respect of only part of the area claimed by the Arabana. The second (SAD220/2018) application was filed over five years later, on 14 September 2018, and seeks a determination of native title over the remaining portion of the area claimed by the Arabana. The two applications of the Walka Wani are known as Walka Wani No 1 and Walka Wani No 2. In combination, the areas which are the subject of Walka Wani No 1 and Walka Wani No 2 overlap exactly the area of the Arabana Claim. The inter-relationship between the areas which are the subject of the two Walka Wani applications is shown in Map 2 below.

Map 2: The Claim Areas of the Walka Wani No 1 and No 2 applications

6    The darker shaded area is the area which is the subject of the Walka Wani No 1 application.

7    The evidence presented, and the submissions made, in relation to the Walka Wani applications did not distinguish between the areas which are the subject of Walka Wani No 1 and Walka Wani No 2. In particular, there was no suggestion that the Walka Wani could succeed on one application and not on another.

8    In these reasons, I will refer to the area in respect of which the overlapping claims are made as “the Overlap Area”.

9    There are several respects in which contested overlapping claims for the determination of native title are unfortunate. Amongst other things, the defence by each claim group of the claim of the other can result in a form of mutual destruction of the respective claims. This is especially so in a case like the present in which the primary cases presented by the applicants are mutually exclusive. Putting to one side an amendment by the Walka Wani which they did not ultimately pursue, neither the Arabana nor the Walka Wani seek any form of joint determination or any recognition of shared native title rights and interests (NTRI). As the State noted, several of the witnesses went to some lengths to disavow any possibility of members of the other claimant group having traditional rights and interests in the Overlap Area. Competing claims also result in divisions and tensions between Aboriginal Peoples who have hitherto lived peaceably together. That was recognised during the trial as several witnesses referred with regret to the tensions which the claims for native title have generated. One witness noted that the competing claims have “turned families against families”.

10    Because of the potential for consequences of these kinds, and because of the desirability of a negotiated outcome if at all possible, the Court ordered two mediations by Registrars of the claims to the Overlap Area. These were conducted between 13-16 July 2015 in Coober Pedy and on 18 September 2018 in Port Augusta. Neither resulted in a mediated outcome and the parties’ positions seemed intractable.

11    On 26 September 2018, the Court ordered, pursuant to s 67 of the Native Title Act 1993 (Cth) (the NT Act), that the Arabana No 2 (Part 2) native title claim, the Walka Wani No 1 Application and the Walka Wani No 2 Application be dealt with in the one proceeding to be known as the “Oodnadatta Common Overlap Proceeding” (in these reasons, “the Overlap Proceeding”). The Arabana People are the first applicant in the Overlap Proceeding, the applicant in Walka Wani No 1 are the second, and the applicant in Walka Wani No 2 are the third. Unless it is necessary to distinguish between them, I will refer to the second and third applicants as “the Walka Wani Applicants” or, more simply, as “the Walka Wani”.

12    Apart from the State of South Australia, there are two other respondents to the Arabana Claim. They are Airservices Australia which has an interest in the Oodnadatta Airport (which is within the Overlap Area) and Mr Douglas Lillecrapp, who holds the pastoral lease of Todmorden Station (immediately to the west and north of the Overlap Area). Neither Airservices Australia nor Mr Lillecrapp took any part in the trial, although Mr Lillecrapp did attend the first day of the hearings in Oodnadatta.

13    The trial commenced with on-country hearings between 30 September and 3 October 2019 at Oodnadatta and between 8 and 11 October 2019 in Alice Springs. It continued in Adelaide between 14 and 23 October 2019. The trial was then adjourned to 6 April 2020 for the purpose of hearing the expert evidence in a concurrent session. However, the restrictions caused by the COVID-19 pandemic prevented the trial from resuming at that time. The expert evidence was heard between 19 and 23 October 2020 and the parties made their finals submissions on 11 and 12 March 2021.

14    Shortly before the Court was to hear the final submissions, Nappamurra Pty Ltd, which holds the pastoral lease of Allandale Station (immediately to the south and east of the Overlap Area), applied for leave to intervene. Having regard in particular to the prejudice which the late intervention would cause the parties, I refused to permit the intervention before the final submissions were made, and adjourned Nappamurra’s application for further consideration after the Court had published its findings on the overlapping claims: Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 2) [2021] FCA 194.

The determinations of native title in the surrounding areas

15    The whole of the Overlap Area is bounded by areas in respect of which determinations of native title have already been made.

16    On 28 August 2006, at Marla, the Court made a determination in respect of a large area abutting the Overlap Area on its northern and western boundaries: Yankunytjatjara/Antakarinja Native Title Claim Group v South Australia [2006] FCA 1142 (the 2006 Yankunytjatjara/Antakarinja Determination). With the exception of areas of extinguishment, this Determination recognised the native title of the Yankunytjatjara/Antakarinja People.

17    On 22 May 2012, at Finniss Springs Station, the Court made a determination in respect of a large area abutting the eastern and southern boundaries of the Overlap Area, which recognised, apart from areas of extinguishment, the native title of the Arabana People: Dodd v State of South Australia [2012] FCA 519 (the 2012 Arabana Determination).

18    The Court has also made determinations of native title in respect of areas further to the north of the 2006 Yankunytjatjara/Antakarinja and 2012 Arabana Determinations. These determinations are King on behalf of the Eringa Native Title Claim Group v South Australia [2011] FCA 1386 (the Eringa No 1 Determination) which at its closest point is approximately 25 km north of the Overlap Area and King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 (the Eringa No 2 Determination) (together the Eringa Determinations). The areas which are the subject of the Eringa Determinations lie immediately to the north and east of the area which is the subject of the 2006 Yankunytjatjara/Antakarinja Determination. Their southern boundaries abut the northern boundary of the 2012 Arabana Determination. The Eringa No 1 Determination recognises the native title rights and interests (NTRI) of members of the Lower Southern Arrernte (LSA) and Yankunytjatjara Peoples. The Eringa No 2 Determination recognises the NTRI of the LSA, the Luritja/Yankunytjatjara and the Wangkangurru Peoples.

19    The location of the Overlap Area in relation to the areas which have been subject to previous determinations is shown in Map 3.

Map 3: Interrelationship of Overlap Area with the surrounding Determinations

Further description of the Overlap Area

20    Oodnadatta is over 100 km in a west-north-west direction from Lake Eyre at its closest point (the north-western boundary of Lake Eyre).

21    The Neales River, which has its headwaters well to the west of Oodnadatta, runs in a generally west-east direction and flows into Lake Eyre. The river was named “The Neales” on 6 June 1859 by John McDouall Stuart after JB Neale, who was then a member of the Legislative Assembly in South Australia. A little to the west of Oodnadatta, the Neales River turns to run in a general north-south direction so that, west of Oodnadatta, it intersects the Oodnadatta Common on a general north-south axis.

22    A waterhole, known as Hookey’s Hole or Uthapuka in Arabana, on the Neales River is immediately south of (i.e, outside of) the Overlap Area and within the area of the 2012 Arabana Determination. Hookey’s Hole is an important feature because, except in periods of drought, it has been a permanent source of water.

23    Mt O’Halloran, given that name by John McDouall Stuart on 7 June 1859, is approximately 5 km north of Oodnadatta (within but close to the northern border of the Overlap Area). Its traditional name is Arkwety-Akaparta.

24    The Macumba River, which is further to the north of Oodnadatta, runs in a general west-east direction to Lake Eyre. It has two principal tributaries: the Alberga which also runs in a general west-east direction, and the Stevenson which runs in a general north-south direction. The Macumba commences at the confluence of the Alberga and the Stevenson, which confluence is only slightly east of due north of Oodnadatta, with the consequence that the Macumba is north of the eastern portion of the Overlap Area. The Alberga River is north of the remaining portion of the Overlap Area. From Lasso Water Hole to Lake Eyre, the Macumba is the boundary between the areas encompassed by the Eringa Determinations and the area of the 2012 Arabana Determination. The Macumba is approximately 45-50 kms from Oodnadatta. Some evidence suggested that, at its closest, that distance may be approximately 45 km.

25    Two Pastoral Leases are adjacent to (and abut) the Overlap Area: Todmorden Station to the north and west and Allandale Station to the south and east. The Peake Station (which now forms part of another Station and which was the subject of several references in the evidence) was located further to the south-east, being between Allandale Station and Lake Eyre.

26    Macumba Station, which has also been absorbed into a larger pastoral lease, was established in 1883 and was located to the north of Oodnadatta in the region of the Macumba River.

27    As will be seen, the Overlap Area is at the approximate boundaries of the lands of the Arabana People, the Southern Arrernte and those of the Western Desert Bloc. The evidence indicates that, by the late 19th Century, Oodnadatta had become the meeting point for a number of different Aboriginal Peoples.

The Arabana Part 2 Application

28    The Arabana Claim is brought by Aaron Stuart, Joanne Warren, Peter Watts, Greg Warren (Snr) and another person now deceased.

29    The description of the native title claim group in the Arabana Claim is as follows:

The Native Title Claim Group comprises those Aboriginal People who both self-identify as Arabana and are recognised as being Arabana by other Arabana People based on:

•    filiation, including by adoption, from an Arabana parent or grandparent; or

•    long term co-residence with Arabana People on Arabana country;

and who satisfy one or more of the following criteria:

•    Being raised in Arabana country and being bound by its system of law and customs;

•    Living and behaving appropriately with Arabana People in accordance with Arabana laws and customs;

•    Having knowledge of Arabana country and its stories and taking appropriate responsibility, under Arabana custom and law, for that knowledge;

•    Having knowledge of Arabana society and the relationships with people within it and seeking to maintain proper relationships among Arabana People;

•    Having knowledge of Arabana language;

•    Displaying an active interest and engagement in Arabana affairs.

(Emphasis added)

30    This description is identical with the description of the Arabana People recognised in the 2012 Arabana Determination as holding native title. It was common ground that the Arabana are part of the Lakes Cultural Group. Other peoples who are part of the Lakes Cultural Group are the Pilatapa, Warlpiri, the Dieri and the Kuyani. Lakes People have a matrilineal moiety system pursuant to which persons inherit from their mothers their “mardu” totem.

31    The NTRI claimed by the Arabana are described in Schedule E to the application:

1.    The nature and extent of the native title rights claimed and interests in relation to the Claim Area are non-exclusive rights to use and enjoy in accordance with the native title holders’ traditional laws and customs the land and waters of the Claim Area, being:

(a)    the right to access and move about the Claim Area;

(b)    the right to live, to camp and, for the purpose of exercising their native title rights and interests, to erect shelters and other structures on the Claim Area;

(c)    the right to hunt and fish on the land and waters of the Claim Area;

(d)    the right to gather and use the natural resources of the Claim Area, such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers, but excluding those resources referred to in Paragraph 12;

(e)    the right to share and exchange the subsistence and other traditional resources of the Claim Area;

(f)    the right to use the natural water resources of the Claim Area;

(g)    the right to cook on the Claim Area and to light fires for domestic purposes but not for the clearance of vegetation;

(h)    the right to engage and participate in cultural activities on the Claim Area including those relating to births and deaths;

(i)    the right to conduct ceremonies and hold meetings on the Claim Area;

(j)    the right to teach on the Claim Area the physical and spiritual attributes of locations and sites within the Claim Area;

(k)    the right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Claim Area; and

(l)    the right to be accompanied on to the Claim Area by those people who, though not Native Title Holders, are:

(i)    spouses of native title holders, or

(ii)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the Claim Area; or

(iii)    people who have rights in relation to the Claim area according to the traditional laws and customs acknowledged by the native title holders.

The native title rights and interest claimed are also subject to the effect of:-

(a)     all existing non native title rights and interests;

(b)    all laws of South Australia and the Commonwealth of Australia;

(c)    valid interest conferred under those laws.

32    Other than in respects which are not presently material, the NTRI claimed in the Arabana application match those recognised in the 2012 Arabana Determination.

The Walka Wani Applications

33    The Walka Wani No 1 application is brought by Dean Ah Chee, Huey Tjami and Christine Lennon. The Walka Wani No 2 application is brought by Audrey Stewart and Dean Ah Chee.

34    The two Walka Wani applications identify the Walka Wani claim group in identical terms:

The native title claim group comprises the native title holders pursuant to King on behalf of the Eringa Native Title Claim Group v State of South Australia (SAD6010/1998, SAD189/2010), who are:

(a)    All those Lower Southern Arrernte persons who have a traditional connection to the Claim Area, being all those described in Attachment A (1) who:

i.    identify as Lower Southern Arrernte; and

ii    are recognised under the relevant traditional law and custom by other Native Title Holders as having rights and interests in the Claim Area; and

(b)    All those Yankunytjatjara and/or Luritja persons who:

•    Have a spiritual connection to the Claim Area and the Tjukurpa associated with it because in the case of each of them:

•    The Claim Area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or

•    He or she has had a long term association with the Claim Area such that he or she has traditional geographical and religious knowledge of that country; or

•    He or she has an affiliation to the Claim Area through grandparent with a connection to the Claim area as specified in sub-paragraph A or B above,

including all those of those derived in Attachment A (2) who identify as Yankunytjatjara or Luritja; and

•    Are recognised under the relevant traditional law and custom by other Native Title Holders as having rights and interests in the Claim Area.

35    As is apparent, the Walka Wani People comprise two groups: the LSA and the Yankunytjatjara/Antakarinja. It was common ground that the Arrernte People occupy a large area in Central Australia which extends north of Alice Springs and that they belong to the Arandic group of Aboriginal Peoples. The Yankunytjatjara/Antakarinja/Luritja People are Western Desert People. The name Antakarinja was used by the Arrernte People to refer to Yankunytjatjara, the people of the south, but over time can to be used by the Yankunytjatjara themselves.

36    The Attachments A to the two applications list separately in respect of the “Lower Southern Arrernte Descent Groups” and “Yankunytjatjara/Luritja Descent Groups” the descendants of named apical ancestors. Seven of the apical ancestors are common to both Descent Groups.

37    The description of the native title claim group in each of the two Walka Wani applications matches the description of the group recognised in the Eringa No 1 Determination as having native title but differs from the description of the native title group in the Eringa No 2 Determination.

38    The description of the native title claim group in the Walka Wani applications does not match that of the native title holders in the 2006 Yankunytjatjara/Antakarinja Determination as those native title holders do not include the Lower Southern Arrernte. The description in the latter Determination, is as follows:

Under the relevant traditional laws and customs of the Western Desert Bloc, the native title holders comprise those Aboriginal People who have a spiritual connection to the Determination Area and the Tjukurpa associated with it because:

(a)    the Determination Area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or

(b)    he or she has had a long term association with the Determination Area such that he or she has traditional geographical and religious knowledge of that country; or

(c)    he or she has an affiliation to the Determination Area through a parent or grandparent with a connection to the Determination Area as specified in sub-paragraphs (a) or (b) above;

and are recognised under the relevant Western Desert traditional laws and customs by other members of the native title claim group as having rights and interests in the Determination Area.

39    The NTRI claimed in the two Walka Wani applications are in substance identical:

•    Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where section 238 and/or sections 47, 47A and 47B apply), members of the native title claim group claim the right to possess, occupy, use and enjoy the lands and waters of the application (the Application Area) as against the whole world, pursuant to their traditional laws and customs.

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

•    The right to access and move about the Claim Area;

•    The right to hunt and fish on the land and waters of the Claim Area without limitation of what purpose;

•    The right to gather and use the natural resources of the Claim Area such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers;

•    The right to share and exchange the subsistence and other traditional resources of the Claim Area;

•    The right to use and take the natural water resources on the application area;

•    The right to live, to camp and, for the purpose of exercising native title rights and interests, to erect shelters and other structures on the Claim Area;

•    The right to cook on the Claim Area and to light fires for domestic purposes but not for the clearance of vegetation;

•    The right to engage and participate in cultural activities on the Claim Area including those relating to births and deaths;

•    The right to conduct ceremonies and hold meetings on the Claim Area;

•    The right to teach on the Claim Area the physical and spiritual attributes of locations and sites within the Claim Area;

•    The right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Claim Area;

•    The right to be accompanied on to the Claim Area by those people who, though not members of the native title claim group, are:

(i)    spouses of Native Title Holders; or

(ii)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the Claim Area; or

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

•    In relation to Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders, the right to speak for country and make decisions about the use and enjoyment of the Claim Area by those Aboriginal persons.

•    The rights described in paragraphs 2(b), (c), (d) and (e) are traditional rights exercised in order to satisfy personal, domestic, or communal needs.

•    The native title rights and interests are subject to:

•    The valid laws of the State of South Australia and the Commonwealth of Australia; and

•    The rights (past or present) conferred upon persons pursuant to the laws of the Commonwealth and the laws of the State of South Australia; and

•    The traditional laws and customs of the native title claim group.

40    The NTRI claimed by the Walka Wani differ from those recognised in the 2006 Yankunytjatjara/Antakarinja Determination in a number of respects:

(a)    the Walka Wani claim “exclusive possession” over all areas except those over which native title has been extinguished or to which s 238 and/or ss 47, 47A or 47B of the NT Act apply, whereas the rights recognised in the 2006 Yankunytjatjara/Antakarinja Determination were expressly stated not to be exclusive;

(b)    the Walka Wani claim the right to hunt and fish on the land and waters of the Overlap Area without any limitation of purpose;

(c)     the Walka Wani claim the right to “share and exchange the subsistence of other traditional resources of the Claim Area”; and

(d)    instead of claiming the right to light fires for domestic purposes (but not for the clearance of vegetation) on the Overlap Area, the Walka Wani claim the right to light fires “for all purposes” other than the clearance of vegetation.

41    The NTRI recognised in the 2006 Yankunytjatjara/Antakarinja Determination and in each of the Eringa Determinations are in substance identical. Accordingly, the Walka Wani are seeking in respect of the Overlap Area NTRI of greater extent than those recognised in each of those determinations.

The history of the claims

42    The Arabana People first made a claim for land rights over a large area in the far north of South Australia by a writ filed in the High Court of Australia on 22 May 1993. That claim included the area of Oodnadatta and the Oodnadatta Common. It was discontinued on 31 August 1993 after the enactment of the NT Act.

43    In 1998, the Arabana commenced the application for a determination of native title which resulted in the 2012 Arabana Determination. They did not include the Overlap Area in that claim because the State had previously indicated that it intended to transfer the Oodnadatta Common to the ALT with a view to the ALT then providing a long term lease of the Common to the Dunjiba Community Council, this being the Council comprised of the residents in Oodnadatta. The Arabana recognised that, as many of the residents of Oodnadatta at the time were not Arabana, Dunjiba was more representative of its residents and they did not wish to create an impediment to the State transferring the land to the ALT. However, the transfer to Dunjiba did not proceed.

44    Having obtained the 2012 Arabana Determination on 22 May 2012, the Arabana People then lodged the application for a determination of native title on 1 March 2013.

45    As already noted, in the Walka Wani No 1 application filed on 12 April 2013, the Walka Wani sought a determination of native title over only part of the Overlap Area, being the town of Oodnadatta, the Oodnadatta Airport and the racecourse together with some land immediately surrounding those areas. The second Walka Wani application which seeks a determination of native title over the balance of the Overlap Area was not made until 14 September 2018.

46    As the Arabana noted, the Court has not been provided with any explanation for the Walka Wani not having earlier made a claim with respect to the Overlap Area, in particular, in the application leading to Eringa No 1 Determination in which the description of the native title claim group matches the description of the claim group in each of the two Walka Wani applications, or for the Walka Wani having initially claimed only part of the Overlap Area. They submitted that this circumstance supported the inference that the senior people who brought these applications had not considered Oodnadatta and its immediate surrounds to be the country of the Walka Wani.

Statutory provisions and principles

47    The High Court has emphasised that a determination of native title is a creature of the NT Act, and not of the common law, so that the circumstances in which a determination may be made are defined by the NT Act: The Commonwealth of Australia v Yarmirr [2001] HCA 56, (2001) 208 CLR 1 at [7]; Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58, (2002) 214 CLR 422 (Yorta Yorta) at [32].

48    By s 13(1)(a) of the NT Act, applications may be made to this Court for “a determination of native title” in relation to an area for which there is no approved determination of native title. The expression “determination of native title” is defined in s 225 of the NT Act:

225 Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

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

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

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

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

(e)    to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

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

(Emphasis in the original)

49    The term “native title rights and interests” used in s 225 is explained in s 223 of the NT Act:

223 Native title

Common law rights and interests

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

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

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

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

Hunting, gathering and fishing covered

(2)    Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Statutory rights and interests

(3)    Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

Note:    Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.

Subsection (3) does not apply to statutory access rights

(3A)    Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

Case not covered by subsection (3)

(4)    To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

(a)    in a pastoral lease granted before 1 January 1994; or

(b)    in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

50    Although the issues on the present applications principally concern matters of connection, it is appropriate to record matters concerning the application of ss 223(1) and 225 of the NT Act more generally, as they inform the Court’s resolution of those issues. Relevantly for present purposes, these include:

(a)    a determination of native title is a determination of the possession of rights and interests, and not of “ownership” or even “traditional ownership”. Section 223(1) does not use those terms. Section 253 of the NT Act does not define the term “right” but it does define the term “interest” in an expansive way, indicating that it is not confined to “ownership” according to conventional understandings of that term. As counsel for the Walka Wani noted, the NT Act does not use the concept of “traditional Aboriginal owner” adopted in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – see Risk v Northern Territory of Australia [2006] FCA 404 at [437] and Pareroultja v Tickner (1993) 42 FCR 32 at 42;

(b)    NTRI are not limited to rights and interests of the kind understood in the common law: Yarmirr at [12]. In The State of Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1 (WA v Ward), the plurality said:

[95]    [R]ecognising that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer's one-dimensional view of property as control over access reveals that steps taken under the sovereign authority asserted at settlement may not affect every aspect of those rights and interests. The metaphor of "bundle of rights" which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.

(c)    nor are NTRI limited to rights capable of enforcement: Yarmirr at [16]. Regard should be had not only to the manner in which breaches of the rights or interests are addressed as a matter of traditional law, but also to the manner in which, as a matter of traditional custom, the law is observed: ibid;

(d)    the existence and content of NTRI must be found in the traditional laws and customs of the claim group (s 223(1)(a)). That is the premise on which the NT Act proceeds: Yorta Yorta at [40]. In Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96, the plurality said:

[46]    Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.

(Emphasis in the original)

Likewise, in Yorta Yorta at [50], the plurality said:

[T]o speak of rights and interests possessed under an identified body of laws and customs is … to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs.

Thus, s 223(1)(a) refers to rights and interests “possessed” under the traditional laws acknowledged and the traditional customs observed;

(e)    not all rights which may be exercisable on an area of land or waters are rights “in relation to land or waters” for the purposes of s 223(1). In AB (decased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [547], Bennett J said:

… A right to say what can occur on land is a right in relation to land. The right to participate in ceremonies is a personal right, a status-based right in the Akiba (No 3) sense, and is not a right in relation to land. Permission to attend Law ceremonies, generally given to all who wish to attend, does not amount to a grant of rights over the land. In the same way, the permission-based rights claimed by the Warram, such as the right to conduct rituals, to hunt and fish and to take materials from the land for the purposes of Law ceremonies, are dependent upon the core rights of the Ngarla as traditional owners of that land. They are personal or status-based rights. The giving of permission to be “free” in the country is a personal right that does not convey any interest in Ngarla land.

In Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238; (2018) 265 FCR 68, the Full Court at [88]-[103], upheld the primary judge’s finding that the rights and responsibilities of a ritual leader who did not have descent or succession rights in the determination area were not NTRI;

(f)    section 225(a) contemplates that there may be more than one group having NTRI in the one area of land: Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; (2020) 276 FCR 203 at [36], [165]. In Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [37], the plurality quoted with approval the statement of Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 358:

… [t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.

(g)    the term “traditional laws and customs” in s 223(1)(a) is a reference to a body of norms or a normative system: Yorta Yorta at [39]. They are those which “arise out of and, in important respects, go to define a particular society”: Yorta Yorta at [49]. In this context, “society” refers to “a body of persons united in and by its acknowledgment and observance of a body of law and customs”: ibid.

(h)    the word “traditional” is apt to refer to a means of transmission of law and custom. A “traditional” law or custom is one which has been passed from generation to generation in a society, usually by word of mouth and common practice. But the word “traditional” carries with it two other elements: first, an understanding of the age of the traditions such that the origins are to be found in the normative rules of the societies which existed before the assertion of sovereignty, and, secondly, the reference to rights or interests in land or waters being possessed under traditional laws and customs acknowledged and observed requires that the normative system is one which has had “a continuous existence and vitality since sovereignty”: Yorta Yorta at [46]-[47]; Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464 at [158]. “Vitality” in this context does not connote an independent requirement, but rather that the normative system be described as “having life” (CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [353]), or as a “living system” (Narrier v State of Western Australia [2016] FCA 1519 at [303];

(i)    the society’s acknowledgement and observance of the traditional laws and customs must have continued substantially uninterrupted since sovereignty: Yorta Yorta at [87]. If that is not the case, the laws and customs acknowledged and observed now cannot be properly described as the traditional laws and customs of the peoples concerned. NTRI cease to exist if the society which observes them ceases to exist, or ceases to acknowledge the laws and to observe the customs from which the NTRI derive: Yorta Yorta at [50];

(j)    for these reasons, applicants for determinations of native title must establish not only the laws or customs now acknowledged and observed by their society but also that those laws and customs are the traditional laws and customs which were observed at sovereignty (but allowing for some change or adaptation of the laws and customs in the sense described above): Yorta Yorta at [56]. The NT Act does not allow to be recognised rights and interests in land or waters created after sovereignty and which owe their existence only to a normative system other than the new sovereign power asserted by the Crown: Yorta Yorta at [43];

(k)    however, the mere fact that there has been some change to, or adaptation of, traditional laws and customs, or some interruption of the enjoyment or exercise of the native title rights and interests between sovereignty and the present time is not necessarily fatal to a native title claim: Yorta Yorta at [83]. The plurality in Yorta Yorta added in this respect:

[89]    In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification "substantially" is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.

(Emphasis added)

(l)    this means that the Court should consider whether, despite a change or adaptation in the laws and customs, they can still be regarded as the traditional laws or the traditional customs acknowledged and observed at sovereignty;

(m)    a determination of native title under s 225(1) does not create new rights: it is instead a recognition of rights and interests possessed under traditional laws and customs of the group in question Yorta Yorta at [45], [76]; WA v Ward at [14]; and

(n)    the determination of the existence and content of NTRI involves factual enquiries: one to identify the traditional laws acknowledged and the traditional customs observed by the claimant group, and the other as to whether the traditional laws and customs so identified give rise to NTRI, that is, to establish the connection between the claimed rights and interests and the traditional laws and customs: WA v Ward at [18].

51    Section 223(1)(b) requires expressly that the claimant group have a connection with the land or waters in question “by [the] laws and customs”, ie, by the traditional laws acknowledged and the traditional customs observed by the group: WA v Ward at [64]; Starkey on behalf of the Kokatha People v South Australia [2018] FCAFC 36, (2018) 261 FCR 183 (Lake Torrens Full Court). This requires an identification of the content of the traditional laws and customs as they relate to the area in question and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters: ibid; Bodney v Benell [2008] FCAFC 63; (2008) 167 FCR 84 at [165]. The required connection with the land or waters is essentially spiritual: WA v Ward at [14] (“the spiritual or religious is translated into the legal”). Accordingly, s 223(1)(b) does not require that the connection be physical, although it may be of that kind: Western Australia v Graham (on behalf of the Ngadju People) [2013] FCAFC 143; (2013) 305 ALR 452 at [37]. See also Sampi v Western Australia [2005] FCA 777 at [1079]. Further, the required connection is not by the Aboriginal People’s rights and interests: it is by their laws and customs: Bodney v Bennell at [165]. An applicant must establish that the connection has, in reality, been substantially maintained since the time of sovereignty: Bodney v Bennell at [161], [179].

52    Native title claimants have both an evidentiary and an ultimate onus of proof, subject to the issue of extinguishment. I refer, without repeating, to the proposition stated by Mansfield J in Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 (Lake Torrens No 3) at [92]-[98].

53    These principles have now been discussed and applied in a number of decisions of the Court including Badimia People v Western Australia [2016] FCAFC 67, (2016) 240 FCR 466; Wyman on behalf of the Bidjara People v Queensland [2014] FCA 528; Narrier; and Banjima People v State of Western Australia [2015] FCAFC 84, (2015) 231 FCR 456 (Banjima People Full Court).

The effect of the determinations in the adjacent areas

54    It was common ground that each of the 2006 Yankunytjatjara/Antakarinja Determination and the 2012 Arabana Determination had “determined as a fundamental matter, once and for all” that NTRI existed in the areas to which those determinations related and that the NTRI were held by the Yankunytjatjara/Antakarinja People and the Arabana People respectively. This means that each has been recognised as a society or communal group of people holding rights and interests possessed under traditional law acknowledged and the traditional customs observed by them having a connection with the respective determination areas. These determinations and these recognitions cannot be called into question in the present proceedings – see Lake Torrens Full Court at [198]-[202], [401].

55    The same may be said with respect to the Eringa No 1 and Eringa No 2 Determinations. As the State submitted, each of these four determinations is to be taken to have established conclusively that the identified Aboriginal peoples held NTRI, as described in the determinations, with respect to each determination area “at sovereignty and [have] at all times since then”, so that the Court should not attach any weight to evidence which is directly inconsistent with those determined facts: Lake Torrens Full Court at [198]-[201].

56    This means that the principal question on each application is whether either or both the Arabana and the Walka Wani establish, in accordance with s 223(1)(b) of the NT Act, that their NTRI extend to the Overlap Area and if so, whether they have continued to be possessed by the current societies in accordance with an acknowledgement of their respective traditional laws and an observance of their respective traditional customs.

A summary of the parties’ contentions

57    The Arabana People contend that:

(a)    they are the same group of people who were recognised in the 2012 Arabana Determination and that they form part of a group of societies known as the “Lakes Cultural Group”, which extends from South-west Queensland to Spencer Gulf in South Australia;

(b)    from both the date of sovereignty and effective sovereignty, the Overlap Area has been wholly within their “traditional country” and it was not shared country;

(c)    the claimants in their application, who are the descendants or successors of the native title holders at sovereignty, have continued to occupy the Overlap Area since those times, and continue to acknowledge and observe the traditional laws and customs connected to the Overlap Area;

(d)    the traditional laws and customs are the same as those recognised in the 2012 Arabana Determination;

(e)    the NTRI which they claim are non-exclusive rights;

(f)    the Walka Wani People do not have any NTRI in the Overlap Area and any interest which they do have (apart from ceremony and by marriage) has arisen post-sovereignty; and

(g)    the preponderance of the reliable anthropological and ethnographic evidence supports their claims.

58    The Walka Wani People contend that:

(a)    the Aboriginal people who occupied the Overlap Area at sovereignty were the LSA (sometimes referred to as “the Arrernte”) and Luritja/Yankunytjatjara People (sometimes referred to as “the Antakirinja”) and that the members of the claim group are the descendants of those peoples;

(b)    at sovereignty, the LSA and the Luritja/Antakarinja were members of a single society, although they could also be seen as members of two inter-related and inter-penetrating societies, who acknowledged and observed the same body of laws and customs relating to rights and interests in land and waters;

(c)    they are the same persons, or the descendants of the persons, who are recognised as native title holders in the Eringa No 2 Determination;

(d)    some of those persons were also recognised as native title holders in the 2006 Yankunytjatjara/Antakarinja Determination;

(e)    the Walka Wani claimants and their ancestors have continued substantially uninterrupted since sovereignty to acknowledge and observe the same body of traditional laws and customs; and

(f)    the Arabana People do not possess any NTRI in relation to any part of the Overlap Area. While the Walka Wani agree that the Arabana People have continued to acknowledge and observe some traditional laws and customs, they dispute that that acknowledgement and observance gives rise to any connection of the Arabana People with the Overlap Area. They assert that the Arabana People do not possess, and have never possessed, NTRI in the Overlap Area.

59    The State contends that neither the Arabana nor the Walka Wani had established connection for the purposes of s 223(1)(b) of the NT Act. In the case of the Arabana that is because the connection they had with the Overlap Area has not been maintained. In the case of the Walka Wani that is because they did not have the requisite connection at sovereignty.

60    Part way through the trial, the Walka Wani amended their Statement of Facts, Issues and Contentions (SFIC) to raise a claim in the alternative, namely, that if the Arabana are found to have NTRI in the Overlap Area, they are shared NTRI. However, in the final submissions counsel made only passing reference to this and that was in the Walka Wani rely to the State’s submissions.

61    The anthropologists from whom the Walka Wani (Drs Cane and Liebelt and Mr Graham) adduced evidence consider that there were three societies with rights and interests in the Overlap Area at effective sovereignty: Lakes Culture (Arabana), Western Desert (Antakarinja) and Arandic (Lower Arrernte). They consider that the Overlap Area was a transitional zone in which the interests of the three societies converged. The anthropologists from whom the Arabana and the State led evidence (Mr Lucas and Mr Sackett respectively) accept that there were three societies in the wider region at effective sovereignty, but do not accept that there was a Western Desert society in the Overlap Area at effective sovereignty and, by inference, at sovereignty. Drs Cane and Liebelt, and Mr Graham, consider that the weight of the ethnographic-historical evidence at effective sovereignty favours Antakarinja and Lower Arandic presence in the Overlap Area. Dr Lucas and Dr Sackett, on the other hand, consider that the weight of the ethnographic-historical evidence indicates that, at effective sovereignty, it was a Lakes Culture system of laws and customs which gave rise to interests in the land and waters of the Overlap Area.

Boundaries and shared areas

62    It is well recognised that the Aboriginal boundaries to land may not be geographically precise and that the land of one people may merge gradually into the land of a neighbour. Mansfield J recognised this in Lake Torrens No 3 at [125]:

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

63    Dr Luise Hercus, to whom I will refer later, made a similar point in 1994:

Arabana … people did not think in terms of boundaries: there is in fact no such word in the language. They were however certainly conscious of a series of places where their territory ‘cut out’ and someone else’s began … The ‘cutting out’ may be viewed in some areas as quite definite, but mostly is used as gradual: the neighbouring people may ‘have a right’ in the area, that is they may come there freely for ceremonies without this being considered an act of aggression.

The time of effective sovereignty

64    It was common ground that the relevant date for sovereignty is 1788. It was also common ground that effective sovereignty had not occurred in the Overlap Area for a substantial time after 1788, but there was disagreement as to the time of its actual occurrence. In part this seemed attributable to different understandings of what is meant by the term “effective sovereignty” and the purpose of identifying the time at which it occurred.

65    The identification of the approximate time of effective sovereignty is a practical measure by which the absence of means of establishing the position at actual sovereignty can be overcome. The Court identifies the position at the time of effective sovereignty with a view to inferring from that position what the position must have been at actual sovereignty: Gudjala People #2 v Native Title Registrar [2007] FCA 1167 at [64]. Accordingly, the term “effective sovereignty” has generally been taken to be a reference to the time of first European observation (Lake Torrens No 3 at [212]) or the time of first contact between the Aboriginal people and European settlers (Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308 at [276]; Banjima People v State of Western Australia (No 2) [2013] FCA 868, (2013) 205 ALR 1 at [82]), or “the period from which the claim area was progressively exposed to European settlement” (Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9, (2015) 325 ALR 213 at [209]).

66    The anthropologists from whom the Walka Wani led evidence (Dr Cane, Dr Liebelt and Mr Graham) considered that effective sovereignty was at the time at which there was “a meaningful impact on Aboriginal traditional law and custom caused by European settlement and the establishment of colonial law in the region”. On this basis, they considered that effective sovereignty occurred in the period between 1875-85 when pastoral stations were established in the area. Dr Liebelt and Mr Graham also suggested that, if effective sovereignty was determined by reference to the time of first European contact, such contact may have occurred when John McDouall Stuart went through the area on his expedition in 1859. In my view, this involved an over literal understanding of the notion of “first European contact” and the purpose for which one is identifying that time. In any event, as will be noted below, while Stuart and his men saw signs of “native” activity in the area, they did not see any Aboriginal people which suggests that any contact then had been minimal.

67    The experts called by the Arabana People and the State (Drs Lucas and Stockigt and Dr Sackett and Mr Gara respectively) considered that effective sovereignty occurred earlier, in the period 1872-73. This was the time of first European contact. This was in part because the establishment of pastoral stations to the south and north of the Overlap Area in 1872-73 (the Peake and Charlotte Waters respectively) and, in part, because construction of the Overland Telegraph Line between 1870 and 1872 had brought hundreds of workers to the area as well as people travelling along the Line. These matters contributed to sustained European contact.

68    The historical evidence supports the views of Drs Lucas, Stockigt, Sackett and Mr Gara.

69    The first white person to traverse the Overlap Area (or the region in close proximity to it) was John McDouall Stuart in the course of his 1859 expedition. In addition to naming the Neales on that expedition, he also named a creek south of Oodnadatta and running in a general west-east direction as the Peake. Stuart passed through the area again on his later expeditions between 1860 and 1862.

70    The explorers Babbage and Warburton had discovered the mound springs in the area south and south-east of the Overlap Area in 1858. That led to the establishment of sheep stations in the vicinity of those mound springs, including Finniss Springs, Strangways Springs and Mt Margaret which became the Peake Station and (in 1861) Mount Hamilton Station to the northeast of Oodnadatta. The Peake Station, which is now part of Anna Creek Station, was operating from 1870. A sheep run was established on the Macumba River in about 1870 but abandoned after two or three years. The first lease of Dalhousie Station (north of Oodnadatta) was taken up on 1 January 1873. Macumba Station (north of Oodnadatta) was operating from 1874, having been established in 1872-3. The introduction of large numbers of sheep, cattle and horses after 1870 must have had a significant impact on Aboriginal foraging patterns.

71    The incursion of white persons into the Overlap Area accelerated from June 1870 with the surveying for the Overland Telegraph Line between Port Augusta and Darwin. Construction of the line commenced in Port Augusta in October 1870. It was completed as far as the Macumba River (north of Oodnadatta) in January 1871 and completed to Darwin in August 1872. The construction was a significant undertaking, requiring large amounts of equipment and supplies which (from the south) were transported from Adelaide or Port Augusta by camels and horse drawn drays. Depots and other facilities for workers were established along the Line and repeater stations were erected at intervals of about 200 miles. In 1870 a tent city was established by telegraph line workers on the Neales, just north of Oodnadatta.

72    In the vicinity of the Overlap Area, the repeater stations were at Strangways Springs (now part of Anna Creek Station), The Peake Station and Charlotte Waters. These were completed by early 1872. Both Strangways Springs and the Peake are south-east of the Overlap Area and Charlotte Waters is just north of the Northern Territory border. Police stations were established at the Peake and Charlotte Waters in 1873. Graham and Liebelt described the Peake as “a significant settlement on the north-south route with numerous buildings and an inn for travellers”.

73    The route of the Overland Telegraph Line also quickly became a “jumping off point” for further exploration and pastoral development throughout the region.

74    The track following the Telegraph Line became the principal access route to Central Australia for pastoralists, explorers, missionaries, police, settlers, teamsters, hawkers, cameleers and travellers. The present Oodnadatta Track follows substantially the same route.

75    There were several references in the evidence to the movement of Aboriginal people up and down the Telegraph Line before the construction of the railway line. It seemed to be common ground that this had increased after the construction of the railway line.

76    Apart from impacts brought about by access to European food and perhaps employment, the workers brought diseases for which the indigenous populations did not have immunity. Even before the Spanish Flu of about 1919, this resulted in reductions in the Aboriginal populations.

77    Following the construction of the Overland Telegraph Line, new pastoral stations were established at Dalhousie Springs and Macumba (both north of the Overlap Area) in 1872-3. Shortly afterwards, smaller stations nearer to the Overlap Area (but south of it) were established at Nilpinna, Cootanoorinna and Allandale.

78    One indication of the impact of the construction of the Telegraph Line is seen in the report of FW Andrews, the “collecting naturalist” on the Lewis expedition to Lake Eyre in 1874-5. He reported that, at the Macumba, they met Tommy who “had a good smattering of English from having been with the telegraph construction parties for some time and was very useful as a guide and interpreter”.

79    Given this history, I consider that the opinions of Drs Lucas, Stockigt and Sackett and Mr Gara as to the date of effective sovereignty are likely to be correct and I accept them. Drs Cane and Liebelt and Mr Graham overlooked the developments before 1870 and the significant impact of the construction of the Overland Telegraph Line.

80    All parties accepted that the Court may draw the inference that the position at sovereignty was the same as it was at effective sovereignty.

81    It was also common ground that effective sovereignty does not mean that there was a collapse at that time of Aboriginal law and custom in the region.

Some further history

82    Oodnadatta was announced as the terminus of the Great Northern Railway in October 1889. The proclamation of Oodnadatta as a town occurred in October 1890. Construction of the Great Northern Railway to Oodnadatta was completed in June 1891. Oodnadatta then became an important supply centre in Central Australia. It remained the terminus of the Great Northern Railway until 1926 when the rail line was extended to Alice Springs.

83    The precise origin of the name “Oodnadatta” is not clear. The South Australian Chronicle on 4 January 1890 reported that “the terminus of the line will no longer be called Angle Pole, but will in future be called Oodnadatta, a spot near Mount O’Halloran, the reason being the desire of the department to preserve the native names as far as possible”. The name had been recorded by the surveyor, Edward Lees, a few years earlier. I will refer later to the evidence indicating that it is more likely to be an Arrernte name than an Arabana name.

84    In 1892, local pastoralists lobbied a touring South Australian Parliamentary party to establish a stock reserve near to the rail terminus. This request was repeated by a petition in August 1897. The stock reserve was gazetted on 14 October 1897 and the area became known as the “Oodnadatta Common”. It comprises most of the area surrounding Oodnadatta shown in the map in [3] of these reasons.

85    The principal use of the Common was for holding and feeding of stock before it was loaded onto the Ghan to travel south. This continued until the closure of the railway line in 1980. Some 20 acres of the Oodnadatta Common were resumed in 1940 in order to establish a camping reserve for Aboriginal people. Apart from the areas used for Aboriginal camps, other uses of the Oodnadatta Common from time to time have included a market garden along the banks of the Neales River and, in addition, parts of the Common have been acquired for use as the airport, the Racing and Gymkhana Clubs, the cemetery and for the purpose of public utilities.

The expert evidence

86    The Arabana led evidence from two experts. These were Dr Rodney Lucas, an anthropologist, and Dr Clara Stockigt, a linguist. Dr Lucas provided reports dated 19 March and 14 October 2019 and Dr Stockigt reports dated 19 March and 27 September 2019 and 12 October 2020.

87    The Walka Wani led evidence from four experts. These were Dr Scott Cane, Mr Robert Graham, Dr Belinda Liebelt and Dr Paul Black. Each of Dr Cane, Mr Graham and Dr Liebelt is an anthropologist, and Dr Black is a linguist. Drs Cane and Liebelt provided a joint report dated 22 March 2019. This report was drawn from field work and research undertaken by Dr Cane in 2005-2006 for the Yankunytjatjara/Antakarinja native title claim. Mr Graham and Dr Liebelt provided a joint report dated 22 March 2019. Mr Graham also provided a male gender restricted report dated 28 March 2019. Dr Black provided a report dated 30 July 2019 and an Addendum to that report on 16 July 2020.

88    The State led evidence from two experts: Dr Lee Sackett who is an anthropologist and from Mr Tom Gara, a historian. Dr Sackett provided two reports, dated 17 May 2019 and 25 November 2019. Mr Gara provided a report dated 20 May 2019 and, in addition, a very useful historical timeline for the Oodnadatta area.

89    Without intending any disrespect to any of the experts, I will hereafter refer to them in these reasons by their surnames only.

90    No issue was taken with respect to the expertise of any of the experts. Each, however, has had a different range of experience which affected the extent to which they could speak with expertise on some subject matters. The joint report of Graham and Liebelt disclosed that the examination of the anthropological materials, along with most of the writing of the report, had been completed by Graham, but that Liebelt had, since November 2018, assisted with some ethnographic-historical research, family histories, report writing and editing/formatting. Although Graham and Liebelt had discussed the opinions contained in the report and had reached consensus about them, they acknowledged that the opinions expressed in the report were generally those of Graham.

91    Stockigt and Black gave their evidence in concurrent session. Lucas, Cane, Liebelt, Sackett, Graham and Gara gave their evidence in a separate concurrent session.

92    By reason of the lateness with which he was retained, Black did not participate in the conference of experts on 9 and 10 July 2019 which the Court had ordered in preparation for the trial. However, he and Stockigt did confer in relation to the issues arising from their respective reports shortly before giving their evidence.

93    Subject to some matters which I will mention in the course of the reasons which follow, I considered that each expert was endeavouring to assist the Court. That does not mean of course that I have accepted all of their evidence, and there were significant differences on some topics.

94    As is perhaps inevitable, there were aspects of the evidence of each expert which were argumentative. That is a not uncommon given the natural human tendency to wish to defend a position on which one has previously settled, or because of alignment with the interests of the party calling them to give evidence. I thought that these features were particularly pronounced in the case of Graham and Liebelt, perhaps by reason of their employment by SANTS (the solicitors for the Walka Wani), which meant that they did not have the usual independence of an expert witness. As will be seen, I have less confidence in their evidence than I do in with respect to the evidence of Lucas, Sackett, Gara and Cane.

Gender restricted evidence

95    On 1 May 2019, in accordance with the Court’s programming orders for the trial, the Walka Wani filed an application seeking orders directed to the taking into account of particular cultural and customary concerns. In particular, the Walka Wani wished to lead evidence which should be heard by, and disseminated to, males only and other evidence which should be heard by, and disseminated to, females only. The supporting affidavit indicated that male restricted evidence would concern an important Tjukurrpa which goes through the Oodnadatta area which is part of the secret and dangerous men’s law known as the Red Ochre law. Knowledge concerning the law is imparted only to initiated Walka Wani men of a certain seniority. The Walka Wani referred to places within the Overlap Area to which women are not permitted to go and about which they are not permitted to be told stories.

96    The orders sought by the Walka Wani would have prevented any Arabana male from hearing the male gender restricted evidence. I declined to make orders to that effect and, instead, acceded to the application of the Arabana that one senior Arabana man be permitted to hear the male gender restricted evidence of the Walka Wani and that another be permitted to be informed of it for the purpose of providing instructions: Stuart v State of South Australia (Oodnadatta Overlap Proceeding) [2019] FCA 1282. Each of the two Arabana men would, however, first have to provide the Court with a solemn undertaking to keep confidential the material regarding the Red Ochre story.

97    An application by the Walka Wani for leave to appeal against that decision was refused: Ah-Chee v Stuart [2019] FCAFC 165. At the conclusion of its judgment, the Full Court endorsed the encouragement which I had given to the parties to continue discussions concerning the means by which the cultural and customary concerns of the Walka Wani could be accommodated. It raised the possibility of the Court’s orders being varied so that, instead of the two senior Arabana men being permitted to hear or be informed of the male gender restricted evidence as of right, Lucas as the expert anthropologist retained by the Arabana would be permitted to seek information from them as he thought necessary when the male gender restricted evidence was given. Despite that suggestion, no party sought any revision of the Court’s previous orders nor made any submissions as to how such an approach could be accommodated in the context of the trial. The Court was told only that the Walka Wani had decided not to lead the previously foreshadowed male gender restricted evidence.

98    The Walka Wani did, however, lead some evidence in which the Court sat with only males present. However, later the parties agreed that that evidence need not be the subject of any restriction and it was made part of the open transcript.

99    On 9 September 2019, the Court made orders concerning female gender restricted evidence. The Court did hear evidence on 2 October 2019 at a women’s site to the east of Oodnadatta and outside the Overlap Area from which all males (other than me as Judge) were excluded. Later the parties reached agreement on the portions of the transcript which should remain restricted pursuant to the Court’s orders. The remaining portions of the transcript were then incorporated into the open transcript.

The three societies

100    Although each of the Arabana, Lower Souther Arrernte and Antakarinja peoples have been recognised in the neighbouring determinations, it is appropriate to record some matters about them.

The Arabana

101    In the reasons supporting the 2012 Arabana Determination (Dodd v South Australia [2012] FCA 519 at [35]), Finn J gave the following summary of the key features of Arabana society. The appropriateness of that summary is supported by the report of Dr Fergie and Dr Lucas prepared in 2011 in support of the then Arabana claim and the reports of Lucas prepared in connection with the present claim. I accept it as appropriate:

(i)    A system of kinship and marriage, underpinned by the practice of exogamy and the avoidance of incest, which was central to defining relationships between Arabana people, and between Arabana people and the land. This classical Arabana kinship system was characterised by -

(a)    a classificatory kin system which attributed kin terms to classes of relationships and in turn predicated normative behaviour between those classes of relationships;

(b)    two exogamous matrilineal moieties known as Mutherri (Matthurie) and Kararru (Kirirawa) as well as by exogamous totemic divisions which regulated marriage and were significant in some ceremonial responsibilities; and

(c)    preferential marriage rules which were indicated in the classificatory kin system and which oriented marriage (and ceremonial) relationships;

(ii)     division into small localised groups with particular association with certain areas within Arabana country. Some members of those smaller groups would come together for ceremony, trade and major decision making;

(iii)    A distinct language comprising a number of closely related dialects; and

(iv)    A male initiation process that included the Wilyaru ceremony.

102    Earlier in these reasons, I identified the native title holders under the 2012 Arabana Determination. The report of Lucas indicates that the present claimants are descendants of the Arabana people who were found by the Court in 2012 to be native title holders according to the laws and customs of the Arabana.

103    Lucas concluded, at [270], that:

•    the applicants are members of a society (‘Arabana’) that is defined by systematic principles of membership entailing normative prescriptions, this system being defined by way of recognised mechanisms of descent and filiation;

•    the applicants are descended from Arabana antecedents, according to principles of filiation recognisable as traditional or as having been derived from a traditional system;

•    this is a system by which identity as Arabana people is acknowledged by a body of persons united in their observation of law and custom (a ‘society’);

•    this system allows identified families to be traced back to other families, local groups or key individuals in the ethnohistorical record; and

•    this system articulates the relationship of people to places by way of inherited rights and interests that derive from, or are transformations of, the traditional system of land tenure.

104    Some elaboration of these propositions, derived from Lucas’ first report, follows.

105    In Arabana society, each man inherits a totemic name from his father, an area of country with which this totem and a culture hero were associated, a myth relating to the story of the culture hero and its travels, and a ceremony to ensure the propagation of the totem species. A person’s relationship with this patrifilially inherited complex of land, myth and mura is called Ularaka. The associated ceremonies had to be performed by men belonging to that Ularaka and thus owning it, but they were assisted by their sisters’ sons (Marduka) who were referred to as “bosses”.

106    The term Ularaka also has the extended sense of referring to sites, associated stories, ceremonies and objects, all of which are inherited through men. Rights in country, in the form of estates, were also apportioned (and sometimes named) by way of Ularaka. Fathers’ brothers (who usually shared the same Ularaka as a man’s father) were the principal teachers of the knowledge.

107    Lakes Group people such as the Arabana are divided into two matrilineal moieties, each of which is further subdivided into a number of matrilineal descent lines called Mardu which have associated with them a particular totemic species (e.g, the emu). People are not permitted to marry someone from their own moiety but, as the moieties cross over the regional clan divisions, marriages were commonly between people of different local groups. In addition to inheriting his father’s Ularaka, a man also has secondary rights passed down from his mother in her Ularaka, its rituals and associated sites (Abalga). Both men and women inherit Ularaka and Abalga.

108    Lucas described the Arabana principles of traditional tenure and involving a complex set of interaction between inheritance, knowledge and place. Persons may have unique and multiple rights arising from their birth place or from their mother’s or father’s mother’s birthplace. Rights in land in Arabana society are found in the membership of particular groups of people and in the entailments of those groups in complementary relationships and responsibilities for country. People shared in their group’s land and Ularaka by virtue of their membership in their father’s patrifilial group (pintara) and their mother’s pintara group (Maduka). Unlike Western Desert people, a person does not acquire “ownership” rights in land merely by being born on it, or by acquiring ceremonial seniority.

109    These principles established groupings of people linked by affiliation who could be said to own and hold ritual responsibility for particular areas of land surrounding Ularaka/pintara sites.

110    In the joint expert report following the experts’ conference, the anthropologists and Gara agreed that rights to country in Lakes culture were obtained by patrifilial descent and complementary matrifiliation. However, Cane, Graham and Liebelt claimed that these means of obtaining rights to country were also present in Western Desert culture whereas Lucas described them as being “not so prominent”. Sackett and Gara said that patrifilial descent and complementary matrifiliation were not present in Western Desert culture at all.

The (eastern) Western Desert people

111    In Western Desert culture, rights to land are characteristically found in the Tjukurrpa associations of a person’s birthplace (i.e, in the place the person is born) and, for men active in the ritual life of other Tjukurrpa associations gained during their lifetime, through knowledge of the geography of the spiritual associations, and through a parent with connection to the country.

112    In the 2006 Yankunytjatjara/Antakarinja Determination, Mansfield J accepted the following description of Dr Cane of the way in which rights in country were recognised by the Yankunytjatjara/Antakarinja people:

[16]    Claimants express different rights in country and rights in different parts of country according to differing customary mechanism of associations: through birth, descent, long-term association, and knowledge of Tjukurrpa … Peoples express rights with different degrees of authority in differing social and geographic contexts. The strength of that authority is measured in socio-political terms – through age and gender, family connection, ritual and communal status …

113    In the joint expert report following the conference of experts, there was general agreement as to the way in which Western Desert people obtained rights to country. These include imbuement, birth place, patrifilial inheritance, song line inheritance and the relationship between patrifilial and matrifilial kin. The right so obtained are qualified by gender, age and accrued sacred knowledge. At least in respect of men, the rights in religious property are activated through initiation and subsequent revelatory experiences or ceremonies. All agreed that Western Desert landholding groups are “emergent” in the sense discussed by Mortimer J in Narrier at [361], [683] within the social geography subject to traditional law and custom. Lucas considered that landowners in Western Desert culture are not constituted as a group through their shared defined descent from prior land holders but are landowners through their shared association with and to the land itself. Sackett and Gara considered that, while it was formerly the case that landowners were not constituted as a group through their shared defined descent from prior landholders and were landowners through their shared association with, and to, the land itself, it is now the case that landowners are increasingly constituted as a group in the contemporary era through their descent from prior landholders. Cane, Graham and Liebelt agree with this latter view.

The Lower Southern Arrernte

114    Unlike the Arabana with a two moiety system, the LSA have a four section system, which Pastor Carl Strehlow recorded in 1913 as Kamara, Pananka, Paltara and Purula. This distinguished them from a more northerly Arrernte who have an eight section system.

115    For the Arrernte, the country of a landholding group generally comprises a set of significant sites or areas associated with one or more dreamings. Arrernte people usually think of their country in terms of site and the dreamings connected to them, rather than as a bounded area. This seems also to be true of Western Desert people.

116    In the joint expert report, there was substantial but not complete agreement between Cane, Graham, Liebelt and Lucas as to the way in which rights to country are obtained in Arandic culture. Cane, Graham and Liebelt considered that those rights are obtained through conception and birth, patrilineal inheritance with patrikin and matrikin in owner/manager relationships, possession of validating sacred property, for example, sites, songs, objects and design, whereas Lucas considered that those rights were obtained through conception, patrilineal inheritance, possession of sacred property, songs, objects and design.

117    Whereas Cane, Graham and Liebelt considered that the way in which the three peoples obtained rights to property were compatible, neither Lucas nor Sackett agreed.

118    There are distinct differences between the LSA, on the one hand, and the more northern Arrernte, on the other. These are not limited to the differences in their language.

119    In the Eringa (No 1) Determination, Keane CJ said of the people now identified as the Walka Wani:

[32]    The relevant societies to which the applicants belong are the Lower Southern Arrernte and the Luritja/ Yankunytjatjara. Any one claimant may identify with a different one of these labels at different times than a claimant who identifies as one label can be referred to by reference to another label by others. This flexibility in designation is common across the region and well-documented in the anthropological literature about the region.

…

[42]    Examples of the claimants’ connection to the land include birth on the land, inheritance or transmission or rights from an ancestor and prolonged associations and knowledge of responsibilities for the Tjukurrpa or other relevant traditional laws and customs gained from older people while living or working on a station.

120    In the report which he prepared in 2006 in support of the Yankunytjatjara/Antakarinja Native Title Claim, Cane detailed 19 genealogies, noting the extensive inter-mixing of people with the genealogies and the strength and diversity of the family connections outweighed any sense of linguistic affiliation in the individual claimant groups (Yankunytjatjara, Aranda, Antakarinja or Pitjantjatjara).

Proof of connection

121    Each of the Arabana and the Walka Wani sought to establish their connection in accordance with traditional law and custom in the Overlap Area at effective sovereignty and since by a combination of forms of evidence, comprising:

(a)    the ethnographic-historical evidence;

(b)    linguistic evidence;

(c)    evidence from the respective applicant groups;

(d)    anthropological opinion; and

(e)    miscellaneous sources.

122    These will have to be addressed in turn.

123    The drawing of inferences from the evidence in contexts like the present has now been discussed in a number of authorities and it is sufficient to refer to them without repeating what has been said. See Lake Torrens (No 3) at [94]-[95] and [706]-[706] and Bodney v Bennell at [175].

124    As is commonly the case when litigants rely on circumstantial evidence, the conclusions to be reached by the Court will turn upon the combined effect of each piece of evidence. Just as in the commonly cited metaphor for circumstantial evidence, each strand in a rope may be insufficient to support a weight but the strands when woven together are strong enough to do so, so may each item of evidence, considered with other pieces of evidence, be sufficiently probative to discharge the onus of proof. An item of evidence is not discarded because it is not sufficient, by itself, to warrant the ultimate conclusion. It is to be used together with all the other evidence which the Court accepts.

The early ethnographical-historical material

125    As already indicated, John McDouall Stuart was the first white explorer to travel in the vicinity of the Overlap Area. On 6 June 1859, he came to, and named, Neales River (the name Stuart gave was “The Neale”). On 7 June 1859, Stuart camped near, and named, Mount O’Halloran, approximately 5 km north of the future site of Oodnadatta. Although Stuart and his men saw signs of “native” activity in the area, they did not see any Aboriginal people. On that expedition, Stuart travelled as far north as the Alberga River. Stuart travelled again through the vicinity of the Overlap Area on his expeditions in 1860 and 1861.

Christopher Giles: 1875

126    In December 1875, Christopher Giles, the Telegraph Station Master at Charlotte Waters (which is approximately 230 km north of Oodnadatta) responded to a number of questions from George Taplin regarding the Aboriginal people in his area. Giles did not indicate the source or sources of the information he provided, but it may readily be inferred that they were Aboriginal. Taplin published Giles’ responses in his work “The Folklore Manners, Customs, and Languages of the South Australian Aborigines” in 1879. Giles described the local tribe as “Antakerrinya”. The information he provided included:

(a)    the language of the tribe is “Arrinda”;

(b)    the country of the Antakerrinya is between “Parallels 26° 15’ and 25° 30’ and Meridians 134° and 130°”; and

(c)    the tribe had a four section system, with the names Parroola, Panúngka, Booltára and Koomurra.

127    Despite Giles’ use of the name “Antakerrinya”, there was agreement among the anthropologists that he had been referring to LSA People and not to Western Desert People. His description of the location, the language, the vocabulary and the section system all indicated that this was so. Of particular relevance for present purposes is that the location of the area of the “Antakerrinya” which Giles gave was well to the north and west of present day Oodnadatta, which is 27° 32’ south and about 135° 45’ east. Accordingly, Giles’ account is inconsistent with Oodnadatta having been the country of the LSA or, for that matter, the “Antakarrinya” in 1875.

James Lewis and FW Andrews: 1874-1875

128    In 1875, James Lewis undertook a topographic survey of Lake Eyre to the east of Oodnadatta. FW Andrews was the “collector and naturalist” on the expedition. Both reported meeting Aboriginal people along the Lower Macumba Creek who spoke little English. They recorded some words spoken by the Aboriginal people which suggest that they were Arabana or Wangkangurru and not Arrernte or Yankunytjatjara. It seems that Lewis and Andrews did not travel further west to the vicinity of present day Oodnadatta.

Hermann Kempe: 1876

129    Hermann Kempe was a Lutheran missionary at Hermannsburg. In a document written on or about 1 April 1876, he reported on the journey from Adelaide to Hermannsburg. Reverend Kempe reported that at the Peake he had “seen a lot of blacks and very strong figures/frames/builds. They belong to the tribe of the “Wadlhu”. Lucas said that the word “Wadlhu” is Arabana term meaning “country” and, accordingly, he regarded this report of Reverend Kempe as indicating that Arabana People were located on the Peake Pastoral Station in April 1876.

130    Liebelt said that she regarded Reverend Kempe as a reliable ethnographic source of the location of tribal groups shortly after effective sovereignty.

Georg Heidenreich: May 1876

131    Georg Heidenreich was one of the Lutheran missionaries who accompanied Reverend Kempe to Hermannsburg. In a document written in or around May 1876, Heidenreich said:

I must also note that Angelpole is the centre of the Wadloo tribe of Aborigines. The tribe is healthy, strong, industrious and adaptive.

132    No challenge was made to the accuracy of the English translations from the German in which both the Reverend Kempe and Georg Heidenreich had written. Heidenreich’s reference to Angelpole can reasonably be understood as a reference to Angle Pole, a particular Pole on the Overland Telegraph Line located just north of the mid-point of the northern boundary of the Overlap Area and just to the north and west of present day Oodnadatta (which did not exist at the time that Heidenreich was writing). Again, Lucas regarded this statement of Heidenreich, although brief, as providing “strong evidence” that Arabana People were identifying their country at or around Angle Pole and within the Oodnadatta Common, at a time close to effective sovereignty. Sackett too regarded this evidence as an indication that the people were Arabana.

133    Stockigt considered the use of the term Wadlhu and the absence of any record of Arrernte or a Western Desert language being used in the Overlap Area close to effective sovereignty suggested that Arabana was the language belonging to that country. Black, who had initially agreed with Stockigt about this, revised his opinion and raised other possibilities, namely, that the missionaries had understood the name Wadlhu as a tribal name when there was no “Wadlhu tribe” or that it was an Arabana person travelling with Kempe and Heidenreich who had used the term Wadlhu, that is to say, had used a term with which he or she was familiar to describe the people who were present, rather than using the language of that country. While the matters raised by Black cannot be discounted altogether, they seemed to me more in the nature of logical possibilities rather than realistically plausible. The former does not explain the use of an Arabana term, even if it was misunderstood as a reference to a “tribe”. As to the latter, why would the missionaries have reported on what they had been told by someone accompanying them and whom they knew to be a stranger to the area? It is more natural to conclude that Heidenreich thought he was describing the “tribe” (characterised as “healthy, strong, industrious and adaptive”) who were “centred” at Angel Pole.

134    In my view, these records of Reverend Kempe and Heidenreich are some indication of the presence of the Arabana and, particularly in the case of Heidenreich, of their presence at Angle Pole.

JD Woods: 1878

135    Woods, who was described by Gara as a journalist and by Stockigt as a journalist and public servant, presented a paper entitled “The Aborigines of South Australia” which is recorded in the Transactions and Proceedings and Report of the Philosophical Society of Adelaide, South Australia” in 1878. It was in the nature of a generalised overview of knowledge gleaned to that time about Aboriginal people in South Australia (including what is now the Northern Territory) and in other States of Australia. Its potential relevance to the proceedings was identified only relatively shortly before the experts gave their concurrent evidence, and Black described it as one of the “very minor sources” he had found.

136    Woods referred to “the tribes near and beyond the Peake”. In particular, he said:

The Peake and Charlotte Waters tribes are divided into four classes of families or sub-tribes, called the Parula, the Pooninga, Pultara and Coomara. A Parula can only marry a Pooninga, and their children only become Pultara or Coomara. If the Parula is the father, the children are Coomara; but if the mother, the offspring are Pultara. A Pultara may only marry a Coomara. If male the children are Pooninga, if female Parula.

137    It was common ground that the sections which Woods described in this passage were Arrernte sections and not Arabana (which, as noted, has the two moiety systems).

138    Gara said that, so far as he could tell, Woods had not had experience with Aboriginal people and had not in any event travelled to the Peake or Charlotte Waters. He had been unable to identify Woods’ sources.

139    Black, and in turn the Walka Wani, placed considerable reliance on this and other sources recently identified by Black and it will be necessary to return to them.

Robert Hogarth: 1884-5

140    Robert Hogarth’s father, Thomas Hogarth, acquired an interest in Strangways Springs Station (now part of Anna Creek Station) in 1866. Robert’s brothers John and Tom were the managers of the Station between 1866-1895 and 1895-1913 respectively. Robert worked on the Station for about 20 years, leaving it in 1886. In a letter dated 30 April 1884 to an intermediary of Alfred Howitt, the Victorian ethnographer, Robert described the local tribe as the Yandairunga and continued:

Having made full inquiry, I find that the Yandairunga tribe of natives are most probably an offshoot of the Dierie tribe, although they speak in almost totally different dialect. What strengthens me in the belief that they were an offshoot of the Dierie tribe is that the class divisions are known by the same name (although they are not so far as I know) subdivided into any other classes such as family names. The Yandairunga claim the country extending from Strangways Springs to the south, to about 30 miles north of the Peake in the north; a distance of about 140 miles and from the western shores of Lake Eyre on the east to Stuarts Range on the west, a distance of about 140 miles.

(Emphasis added)

141    Hogarth reported that the name “Yandairunga” did not apply to the “natives” themselves but to the country they claimed as “their hunting grounds”. It was common ground among most of the anthropologists that Hogarth’s reference to “Yandairunga” was a reference to the land of the Arabana. However, Graham and Liebelt suggested that the term “Yandairunga” closely matched the term “Antakirinja” and counsel for the Walka Wani drew attention to the fact that Tindale in 1974 had given Yandairunga as an alternative name for the Antakarinja.

142    I am satisfied that that Hogarth cannot reasonably be understood as having used the term Yandairunga with reference to Western Desert People. His reference to the class divisions makes that plain. I also accept Lucas’ evidence that he has never seen the name used as a synonym for the Antakarinja.

143    The “Peake” to which Hogarth referred seems to be the Peake Station located to the south-east of Allandale Station. It is unlikely to have been a reference to Peake Creek as that seems to be a relatively minor watercourse. It is unclear whether Hogarth’s statement that the country of the Yandairunga extended “about 30 miles north of the Peake in the north” was made with reference to the Peake homestead or to the northern boundary of the Peake Station. But in either event, Hogarth was placing the northern boundary of the Yandairunga south of present day Oodnadatta.

144    The handwritten map provided by Robert Hogarth at the same time also indicates that the northern boundary of the land of Yandairunga lay to the south of Oodnadatta (which did not then exist). Graham and Liebelt regarded this handwritten map as reliable and accordingly I set it out below.

Map 4 – Hogarth’s Map of the Overlap Area

145    However, only one year later, Hogarth modified his position (assuming that he had intended the 1884 Map to represent the full extent of Yandairunga country). In a paper presented in September 1885 (the same paper was presented to two audiences), Hogarth said:

The Yandairunga Tribe of Natives claim as a hunting-ground all the country extending from Strangways Springs on the south to Alberga Creek on the North, a distance of about 160 miles, and extending from Lake Eyre on the east to Stuart’s Range on the west, comprising in all an area of about 24,000 square miles. Although they had intermarried with other tribes but still their language is quite distinct from that of any other tribe; and their customs and ceremonies are quite different from those of the tribes in the southern portion of the colony.

(Emphasis added)

146    As is apparent, in September 1885, Hogarth was reporting that Yandairunga land extended to the Alberga River, well north of the future site of Oodnadatta. It seemed to be common ground that the later opinions of the anthropologists and ethnographers can be regarded as the more considered.

147    Like Gara, I consider that Robert Hogarth is a particularly important early source. He lived at the Peake for approximately 20 years, and had obtained detailed knowledge of the Arabana (he had learnt Arabana, understood the two moiety system of the Arabana and had obtained details of 20 or so totem groups).

JF Gillen and PE Warburton: 1886

148    In the work published by EM Curr entitled “The Australian Race” in 1886, there is a chapter by Gillen and Warburton entitled “Charlotte Waters Telegraph Station”. This too had been recently identified by Black as one of his “very minor sources”. The Court was provided with only an extract from this paper, which seemed to be a description of “the tribe” occupying the country around the Charlotte Waters Telegraph Station. The chapter includes the following statement:

The class system of marriage is in force, and it said that all the Blacks between Alice Springs and the Peake Telegraph Stations belong to one of the four following classes: - Paroola, Kammoora, Penunga, and Pooltara.

149    Gillen and Warburton make it plain that they are repeating a view of other[s] (“it is said”) and, as counsel for the Walka Wani noted, they thought that “all the Blacks” between the Alice Springs and Peake Telegraph Stations (which may be taken to include the Overlap Area) belonged to the class system they described.

150    As I understand it, JF Gillen is the same Gillen who teamed up later with Baldwin Spencer. I will refer to their work shortly.

151    As with Woods, it will be necessary to return to the significance of this paper.

Belt: 1886

152    Graham and Liebelt referred to evidence that someone named Belt had collected a list of Arrernte words along the Macumba. Stockigt accepted that that was so. I agree that that is evidence of the presence of Arrernte in that region, but that is north of the Overlap Area.

Joseph East: 1889

153    Joseph East was a policeman with an interest in geology. In 1886, he was stationed at the Peake and, in 1888, led a privately-funded geological expedition to the MacDonnell Ranges.

154    In 1889, East presented a paper to the Field Naturalists’ Section of the Royal Society in Adelaide entitled “The Aborigines of South and Central Australia”. In that paper, East presented the view that the Aboriginal “races” from the coast of the Northern Territory to the south-east of South Australia, could be grouped into seven divisions. Relevantly for present purposes, he considered that the Central Australian tribes occupied the eastern half of the MacDonnell Ranges and extending south to and including the Peake Ranges. With reference to “the Central tribes”, East said:

I divide into two sections – the “Urroban” [Arabana] reaching from Peake to Charlotte Waters, and the Urrundie [Arrernte], from that place to the MacDonnell Ranges. The language is almost the same in both sections, and the customs, rights and practices also. The name for water is “kwytcha” at the Peake, and “kwasha” at Alice Springs. A small racily-written pamphlet by Police-Trooper Willshire has just been published on the natives of Alice Springs, so that I need not dwell at length on their peculiarities … The most remarkable feature in their social economy is their division into four castes or division of consanguinity, which bespeak a lengthened isolation of the race from those surrounding it.

(Emphasis added)

155    East went on to identify the four divisions as Pultarra, Komarra, Perula and “P’Nunga” and to give a description of how the section system operated.

156    The “racily-written pamphlet” of Willshire to which East referred was in evidence. East’s description of the sectional system does seem to be derived from that pamphlet. I note that in that pamphlet, Willshire, who had been based at Alice Springs, did not claim to have any familiarity with the people in and around the Peake or Macumba, or even with that area. It is possible that he (Willshire) relied on the publication of Woods.

157    Graham and Liebelt referred to Tindale’s assessment of East, i.e, that he had “the poorest ear for Aboriginal words … although his distributional data [is] surprisingly accurate … where he had direct information from Aborigines [sic] his deductions were sound and his statements accurate”.

158    Black sought to attach a significance to the writing of East to which I will return, but I indicate now that I agree with Sackett, Graham and Liebelt that there are limitations on the inferences which can be drawn from his work. It is fair to Black, however, to record that this was another of the matters which he characterised as “very minor”. The paper East presented is written at a level of some generality. East’s suggestion that the land of the Arabana reached as far north as Charlotte Waters is inconsistent with the works of nearly everyone else, which indicate that Charlotte Waters is well within Arrernte land. Counsel for the Walka Wani characterised that suggestion as clearly a mistake. It is also unclear whether East’s reference to the four section kinship arrangement and his statement that the Arrernte word for water was in use at the Peake is in fact a record of an Arrernte presence there.

159    Gara pointed out that East served as a Police Constable at the Peake for only “a month or two at the most”, in March and April 1886. He also noted the clear inconsistencies between East’s description, on the one hand, and those of the much more experienced Robert Hogarth written almost contemporaneously, on the other.

160    In all these circumstances, I consider that the significance which can be attached to the work of East is limited.

Hermann Kempe: 1890

161    On 2 December 1890, a paper authored by Reverend Kempe entitled “A Grammar and Vocabulary of the Language Spoken by the Aborigines of the MacDonnell Ranges, South Australia” was presented to the Royal Society of South Australia. In that paper, Reverend Kempe described the vocabulary as being that “of the tribe inhabiting the River Finke, and … with only slight variations in the dialect, that of the tribes in the MacDonnell Ranges eastward to Alice Springs, but not far westward of the River Finke, and extending southward to The Peake”. This account would support the Overlap Area being within the country of the LSA.

162    It is possible that the Reverend Kempe had had some contact with Arrernte people at the Peake, but I agree with Gara and Sackett that his statement about the southern extent of the language should not be regarded as reliable. First, at Hermannsburg, Reverend Kempe was approximately 500 km away from the Overlap Area. Secondly, the Oodnadatta Township had been proclaimed only two months before Reverend Kempe’s paper was presented to the Royal Society. He may well have prepared it before that proclamation. In that circumstance, the name Oodnadatta is unlikely to have been well known and it may be that Reverend Kempe used the term “the Peake” because it was one of the few places in the general region likely to have been known by his audience. In any event, it makes unlikely any view that Reverend Kempe was intending to differentiate between the Peake and Oodnadatta. Perhaps more fundamentally, Reverend Kempe was plainly wrong that the languages spoken between the Finke River and the Peake were the same, subject to variations in dialect. I have already referred to the differences in the languages spoken by the Arrernte, on the one hand, and the Arabana/Wongkarraru, on the other.

Alfred William Howitt: 1891-1904

163    Howitt was a well-known scholar of Aboriginal Australia at the end of the 19th Century. He had practical field experience, having led one search party for the missing members of the Burke and Wills Expedition. He has been described as an “explorer, natural scientist and pioneer authority on Aboriginal culture and social organisation”.

164    In 1891, Howitt published a paper entitled “The Dieri and Other Kindred Tribes of Central Australia”. He included the following map with the paper.

Map 5 – Howitt’s 1891 ‘Dieri and kindred tribes’ map

165    As is apparent, in this paper Howitt placed the Urapuna [Arabana] north-east of Lake Eyre, the Ongkongura [Wangkangurru] to the west of the Arabana and the Yandairunga to the west of Lake Eyre. His accompanying description indicates that, in preparing the map, he had relied very much on information he had received from Robert Hogarth and other informants rather than on his own field work. Howitt acknowledged the limitations in the accuracy of the boundaries drawn on his map, saying:

These do not pretend to extreme accuracy, but they will serve the purpose intended, namely, to aid the reader by giving a “local habitation and a name” to descriptions of geographical character which would otherwise be little better than mere words. It is possible, nay more than probable, that the boundaries do not give the full extent of the territory claimed by some of these tribes.

166    In the description of his map, Howitt said that “the Yandairunga occupied the country extending from the western shores of Lake Eyre for about 140 miles, and in a north and south direction for the same distance south of the Peake”. There is ambiguity in this statement. It is unclear whether Howitt was indicating that the Yandairunga extended only south of the Peake, or 140 miles north and south of the Peake. The former appears more consistent with the terminology used but is plainly inconsistent with the information on which Howitt relied from one of his principal informants, Robert Hogarth. Like Sackett, I incline to the view that Howitt was intending to convey the latter of the two alternatives: it is difficult to identify any basis on which he could have concluded that Arabana country was to the south of the Peake only.

167    It is also apparent that there are several inaccuracies in Howitt’s 1891 map. It is not necessary to stay with these because Howitt revised the position in 1904 in his book “The Native Tribes of South-East Australia”. In his preface to that book, Howitt said:

With the increase of information, due to a wider scope of inquiry, the mental horizon was necessarily widened, bringing the facts into a truer perspective. Thus it has come about that some of the views expressed in earlier papers have been modified, as will be pointed out in several places in this work.

168    Howitt also noted the difficulty in identifying tribal boundaries:

[T]he reader will kindly bear in mind the great difficulty which always presents itself, not only in defining the true boundaries of any tribal country, but also, in many cases, of giving the true and comprehensive name of the tribe.

169    In the body of his work, Howitt noted:

To the westward of Lake Eyre there is the Urabunna … This tribe adjoins the Arunta on the north …

170    At page 184 of his work, Howitt noted:

This gives a range of tribes, in which probably there was the pirrauru system of marriage, for 850 miles from Oodnadatta, the approximate northern boundary of the Urabunna, to the eastern boundary of the Dieri, or that of the Mardala, say immediately between the Flinders Range and the Barrier Range …

(Emphasis added)

171    Later, Howitt recorded:

On the opposite side of Lake Eyre, or more correctly, north-westerly from the Dieri, there is the Urabunna tribe, the southern division of which is called the Yendakarangu.

(Emphasis added)

172    Howitt and Siebert’s 1904 Map (Map 6) is as follows:

Map 6: Howitt and Siebert’s 1904 Map showing position of the tribes

173    This showed the “Urabuna” west of Lake Eyre but did not show the Arrernte, Antakarinja or Luritja at all.

174    Howitt published a second map in 1904 which contains some revisions. It is Map 7 below.

Map 7: Howitt’s 1904 Map

175    In his 1907 publication “The Native Tribes of South-East Australia”, Howitt referred to Oodnadatta as being “the approximate northern boundary of the Urabunna” in his description of the distribution of the Kararu and Mattari moieties.

Patrick Byrne: 1892

176    Byrne commenced working on the Overland Telegraph Line in 1873 and continued doing so for 50 years. In 1892, while at Charlotte Waters, he responded to a request from AW Howitt for information concerning Aboriginal peoples. His letter included the following:

Name of tribe Aroondah - Boundaries 50 Miles North, 20 West, 90 South, 10 East – The country Eastward is destitute of water, and uninhabited for considerable distance. The tribes about here merge almost imperceptibly into each other, having many customs and words in Common from Oodnadatta to the McDonnell Ranges a distance of 360 miles.

(Emphasis in the original)

177    It was common ground that Byrne’s reference to the “Aroondah” was a reference to the Arrernte.

178    Both the Arabana and the Walka Wani sought to derive support from this statement of Byrne. Lucas described Byrne as a “particularly reliable source” and as “authoritative”.

179    Lucas noted that, at the time Byrne wrote this letter, he had been working on the Telegraph Line for close to 20 years and may be taken to have had some familiarity with the region. He considered that a point 90 miles south of Charlotte Waters is a place called “Three Sisters” which is north of Oodnadatta but south of the junction of the Alberga and the Macumba and about equal distance between the two. He considered that this corresponded approximately with the boundary between Arabana and Arrernte country given by Mick McLean and by Ted Strehlow, to whom I will refer shortly.

180    Graham and Liebelt thought that the distance of 90 miles brought one to a location between the Alberga River and the Murdarinna Water Hole, around 45 kms west-northwest of the Three Sisters site to which Lucas had referred. They also emphasised Byrne’s reference to there being many customs and words in common between the “tribes”.

181    I mention one further matter concerning Byrne. Lucas’ first quotation of Byrne omitted the words “into each other, having many customs and words in common from Oodnadatta”. Graham and Liebelt suggested that Lucas had done this “either deliberately or accidentally”. I accept Lucas’ explanation of the circumstances in which the omission occurred and reject the suggestion that it had been deliberate. With due respect to Graham and Liebelt, the suggestion that the omission may have been deliberate was unfortunate.

Edward Stirling: 1894

182    In 1894, William Horn led a scientific expedition into Central Australia which travelled north from Oodnadatta to Alice Springs and the MacDonnell Ranges in the Northern Territory. Edward Stirling had responsibility for anthropological studies in the expedition. In his report, Stirling said:

Simple as the matter appears it was not without much difficulty and repeated questioning that information could be elicited concerning the territorial distribution of the tribes of Central Australia. The natives with whom we came in contact do not habitually speak of individuals as belonging to such and such a tribe, specifically named and having defined territorial limits, but they designate them by the name of the direction in which their country lies. Thus among the Arunta tribe … the natives to the north are referred to as Aldolina, those to the south as Urlewaga or Urlewa, to the west to Andigraina, and to the east Aiyerara or Iyerara. Consequently, we were for some time under the impression that these names were those of different tribes and, indeed, some of them appear in various communications as tribal names, whereas, in fact, the natives so referred to are not necessarily members of the same tribe. Occasionally they attach the name of some important geographical feature, and it was not uncommon to hear a man of the Arunta tribe spoken of as a Larapinta (Finke River) blackfellow.

183    Later, Stirling reported encountering members of only two “tribes”:

In the large area of country traversed by the Expedition natives belonging to two tribes only were met with – the Arunta or Arunda, of which our principal “black boy”, a tracker of mature years in the service of the police at Oodnadatta, usually spoke as the Lurna Arunda and the Luritcha or Luritchi. The former occupies the tract of country traversed by the telegraph line stretching from Oodnadatta, or more strictly speaking, from the Macumba Creek in the south through Dalhousie Springs, Charlotte Waters, Crown Point, Mount Burrell and Owen Springs to Alice Springs in the McDonnell Ranges.

(Emphasis added)

184    Stirling also referred to the Arabana:

In the course of this paper I shall more than once refer to the tribe of the country now occupied by the Peake Station. Mr Kempe, who has for many years been manager of that Station, which lies to the west of Lake Eyre, informs me that the name of this tribe is Arrabunna. This does not accord with Mr Howitt’s map which places the Urapuna (doubtless the same tribe), to the north of the Lake and beyond the Peake country. As I can hardly believe that my informant, who is an intelligent observer, can have been mistaken in the name of the tribe at his doors, I shall use the name he supplies. It is, however, an exceedingly difficult matter to define tribal boundaries, especially where intermingling has taken place.

(Emphasis added)

185    With reference to the territory of the Luritja, Stirling said:

The territory of the Luritchas marches on the western boundary of the Aruntas, and comprises the country about Erldunda, Tempe Downs, Gill’s Range, Mereenie Bluff and Glen Helen, and extends certainly as far westward as Ayers Rock and Mount Olga, which latter (sic) was the most westerly point reached by the Expedition; probably it stretches still further to the westward.

186    Stirling said that the Luritcha language “differs entirely” from that of the “Aruntas”.

187    Stirling also referred to the Arabana as being the “tribe which adjoins the Arunta to the south, and which occupies the country to the west of Lake Eyre”.

188    As is apparent, Stirling considered it more accurate to describe Arrernte country as commencing at Macumba Creek, i.e, north of Oodnadatta.

Richard Helms: 1896

189    In 1891, an expedition funded by Sir Thomas Elder explored western South Australia and parts of Western Australia. Richard Helms was the naturalist on that expedition. He reported having received information from “Billy Weaver, an intelligent half-caste living at Warrina, but who was born at Port Lincoln” concerning the territory of the “tribes”:

The territory of the Andijirigna extends from Alberga north to Mount Eba south; to the west past the Musgrave Range and in the east it joins the territory of the

Wungarabunna, which extends north from Oodnadatta to Strangways Springs south; east to Lake Eyre, and west to Cootanoorinna. The

Diyeri extends from Salt Creek north-west of Cooper’s Creek to Hergott Springs south; east to Lake Hope, and to the west joins the Wungarabunna territory. The

Kukatha joins the Andijirigna, and extends from Port Augusta north to Poonindie south-west … .

Wungaranda joins the Wungarabunna and Andijirigna tribes.

190    As is apparent, Weaver believed that the northern boundary of the Wungarabunna (Arabana) was at Oodnadatta, that their northern neighbours were the Arrernte (Wungaranda), and that the Antakirinja were the western neighbours of both the Arabana and the Arrernte. He placed the boundary between the Arabana and the Antakirinja (i.e, the western boundary of the Arabana) at Cootanoorinna (near the junction of the Arckaringa and Lora Creeks south-south-west of Oodnadatta).

Otto Siebert: 1898

191    Otto Siebert was a Lutheran Missionary working at Killalpaninna (east of Lake Eyre) from 1894 to 1902. While there, Siebert made some study of the Aboriginal people, including their languages, beliefs and myths and some of their laws and customs. He also corresponded with Alfred Howitt and in 1916 published a joint work with him.

192    In 1898, Siebert sent Howitt a map depicting the relative positions and approximate areas of a number of Aboriginal groups. The map below is the portion of Siebert’s map which is relevant for present purposes.

Map 8: Siebert’s 1898 Map of Tribal Territories

193    In his letter to Howitt explaining his map, Siebert said:

I could have sent a map some time ago, but had to include another tribe here, correct a boundary there and so on. Although the present circumstances no longer permit the clear definition of boundaries, I took greatest care to explore the tribes and their areas. Especially discovering the latter was often rather difficult, as presently 4, 5 and more tribes have settled down at one place. Thus in Oodnadatta I found: 1. Andigirinje, 2. Wonkarabana, 3. Kukata, 4. Wonkaranda, 5. Arentje, 6. Ulbaritja, 7. Willara – as well as some individually stranded Wongkanguru, Cujani etc. That it is not easy to discover their actual abode under such circumstances is understandable.

194    I agree with the assessment of a number of the anthropologists and of Gara that this passage indicates that Siebert had visited Oodnadatta before preparing his map.

195    As the anthropologists noted, Siebert’s map contained some entries made later by others, probably Howitt. Nevertheless, the original entries made by Siebert are apparent. Sackett summarised matters shown on Siebert’s map which are presently relevant (and which I accept) as follows:

a.    XXIV related to the Arentje, who were shown having country extending south to the area of the Macumba River,

b.    XXVI related to the Wonkatjerry, who were shown having country to the east of the southern portion of the Arentje, and whose country was shown as extending south to the area of the Macumba,

c.    XXVII related to the Wonkaranda, who were show having country to the west of the Arentje, though it is not clear how far south their country extended,

d.    XXX related to the Andigirinje, who were shown having country to the south of the Alberga River, and seemingly taking in Oodnadatta, and

e.    XXXII related to the Wonkarabana, who were show having country west and northwest of Lake Eyre and extending north to the area of the Macumba, and taking in the area of the confluence of the North and South Branches of the Neales.

196    Lucas said of Siebert’s map:

In my reading, … the area of ‘Wonkarabana’ extends through The Neales to the Macumba River, which in my opinion can be read – given Siebert’s stated ‘care’ – as a distinction between the historical residence of certain name groups, and underlying ownership by the Arabana.

197    Sackett agreed with that view, saying that Siebert had “mapped the Overlap Area well within the extents of Wonkarabana lands, with the Andigirinje in lands off to the west and northwest and the Arentje in lands off to the north”. Gara also considered that Siebert’s map shows the Claim Area to be in Arabana country. In expressing those view, Gara and Sackett overlooked (understandably as the name is obscured) that Siebert had placed Oodnadatta outside the territory of the “Urabunna”.

198    Graham and Liebelt on the other hand thought that the area Siebert had marked XXX as “Andigirinje”, reflected an area which was once Arrernte country but by effective sovereignty more accurately reflected a group of Aboriginal people with both Arrernte and Western Desert affiliations.

199    I will defer further consideration of Siebert’s map until later.

Lady Tennyson: 1899

200    Graham and Liebelt referred to the visit of the then Governor of South Australia, Lord Tennyson, to Oodnadatta in July 1899. Lady Tennyson, who accompanied the Governor, wrote about the trip in her letters. She referred to having attended a “corroboree” at which a large number of Aboriginal people were present. Graham and Liebelt record Lady Tennyson as saying “at our corroboree there were three different tribes – the Arrunta, Alberga & Macuna – who had congregated & had practised for it”.

201    Graham and Liebelt suggest that this record indicates that “the area retained a significant Aboriginal population [in July 1899], though some may well have come in from neighbouring homesteads, and that Arrernte people were there at the time”. They also suggest that the record indicates that “that groups to the north (i.e. Alberga and Macumba) were those responsible for ceremonial activity in 1899”. Finally, they note that Lady Tennyson had made “no mention of groups from south (i.e. Peake ‘tribes’)”.

202    Like Gara, I consider that there is good reason to be cautious about drawing inferences presently from Lady Tennyson’s account. In the first place, the corroboree appears to have been a specially arranged performance for the Governor and his wife, as Lady Tennyson records that the “tribes” had “been told to collect at sundown” and that they had “practised” for the corroboree. This suggests that local authorities, perhaps the Police, may have organised one group to present the corroboree. Secondly, as Gara notes, there were approximately 70 Aboriginal people at The Peake Station at that time whom Lady Tennyson does not mention. Thirdly, Lady Tennyson does not identify her informant(s). Fourthly, it is unclear what Lady Tennyson meant by the “Macuna”. It is not necessarily a misspelling of “Macumba” as Graham and Liebelt supposed.

203    For these reasons, while the observations of Lady Tennyson should not be disregarded, they can hardly be given the same weight as those of the more knowledgeable sources who spent extensive periods in the region.

Spencer and Gillen: 1899

204    Baldwin Spencer was a scientist who travelled on the Horn Expedition of 1894. Frank Gillen was for a time the Station-Master at the Alice Springs Telegraph Office. He was also a special magistrate and Sub-Protector of Aborigines in Alice Springs. Gillen had commenced work on the Overland Telegraph Line in 1875 working at both Charlotte Waters and Alice Springs and had become familiar with the Arrernte people as well as members of other groups. He is the same Gillen who published the work with Warburton referred to earlier. Graham and Liebelt said that it was appropriate to give considerable weight to his records and opinions. Gara gave a similar endorsement saying that, apart from Robert Hogarth, Baldwin and Gillen had the most experience and knowledge of the area around the Peake.

205    Gillen’s diary of his travel to Alice Springs in 1875 records that he spent several days at the Peake Station where he saw “dozens” of Aboriginal people. North of the Peake he witnessed:

Half a dozen naked women in The Neale’s Creek – they had half a dozen lizards (native name – Cadney) on the Coals, roasting for their evening meal.

206    Spencer and Gillen met in July 1894 when the Horn Expedition reached Alice Springs. In 1896, Spencer and Gillen spent four consecutive months working amongst the “Arunta” people. In 1901, they spent a year in further study of the Arunta. This included “[living]” in the native camps out in the bush, wandering freely in and out amongst them [and being] allowed … to see and hear everything that went on”. Spencer reported that he and Gillen had been “always treated as fully initiated members of the Arunta tribe”. Spencer also undertook his own expedition into Central Australia in 1901. Gillen accompanied Spencer on an overland expedition to Darwin in 1901 and 1902. In 1903, Spencer and Gillen spent several weeks at the Peake Station, working with a group of Arabana and Arrernte elders, recording language, songs and mythology and details of social organisation. They later co-authored a number of works about the Arrernte and other Central Australian tribes.

207    In a letter to Spencer in 1897, Gillen wrote:

There is a tribe up the Albinga and spreading away to the Musgraves who call themselves the “Antikeryina” and speak the Luritcha tongue.

Like Sackett, I consider that the name “Albinga” can be taken as a reference to the Alberga.

208    In an article published in April 1897, Spencer and Gillen referred to “the Urrabunna, living to the west of Lake Eyre”. Gara recorded that Spencer had referred to the “Urubunna” and “Arunta” tribes in a lecture which he gave in Melbourne in April 1897 but had not provided details.

209    In 1898, Gillen reported in a newspaper article that the Arunta tribe occupied “the country between Oodnadatta in the south and Hann’s Range, 70 miles north of Alice Springs”.

210    In an article published in the South Australian Register on 12 September 1898, Gillen said:

The Arunta tribe is a thousand strong. They range from Oodnadatta to west of the MacDonnell Ranges. They have some social organisation. In the north portion of the tribe there are eight classes, and in the south only four. There are eight class names, and there is evidence of a former higher state of social organisation; also, that they are moving upwards.

211    Spencer and Gillen’s first book, entitled “The Native Tribes of Central Australia”, was published in 1899. In that book, Spencer and Gillen reported:

We find, so far as their organisations concern, a sharply marked line of difference between the Urabunna tribe, the members of which are spread over the country which lies to the west and north-west of Lake Eyre, and the Arunta tribe, which adjoins their northern boundary. … [T]he Arunta is the most southern of the Central tribes.

212    In the same book, Spencer and Gillen included an “Outline Map” showing the distribution of the tribes to which they referred. The portion of the map which is presently relevant is set out below:

Map 9: Outline Map of the Central Area, showing the distribution of the Tribes referred to

213    As is apparent, Spencer and Gillen did not include a dotted line boundary between the “Urabunna”, on the one hand, and the Arunta and Luritcha, on the other, but the location shown for each are generally consistent with the 1901-02 field work map to which I will refer shortly.

214    In the body of the work, Spencer and Gillen described a classificatory group of tribes which included the “Arunta” as occupying “a range of country extending from the latitude of Macumba River in the South to about that of Powell’s Creek in the north” (emphasis added).

215    Spencer and Gillen also noted that contact between the Arunta and the Urabunna was not infrequent and that inter-marriage occurred. Of relevance to some of the experts based upon places at which Arrernte speakers were found, it is pertinent to note the following statement of Spencer and Gillen in 1904:

It sometimes happens, in fact not infrequently, that a man from the neighbouring Arunta tribe comes to live among the Urabanna.

216    In a newspaper article following his 1901 expedition, Spencer described the Arrernte as inhabiting the country “extending from the Nacumba (sic) River in the south to 70 miles north of Alice Springs”. Gara also reports Gillen giving a similar account in 1902 as he described the Arrernte as inhabiting the country “extending from the Macumba River to a point 70 miles north of the MacDonnell Ranges”.

217    During their 1901-02 field work, Spencer and Gillen prepared a hand drawn map containing the notation “Map showing distribution of tribes roughly approximate”. Portion of this map is set out below.

Map 10: Portion of Spencer & Gillen, ‘Northern Territory: Map showing distribution of Tribes roughly approximate’

218    As is apparent, Spencer and Gillen indicated in Map 10 that the “Urapunna” were located to the east and west of Oodnadatta with the “Arunta” to the north of the Macumba. Their dotted line indicating the division between the “Urapunna” and the “Arunta” is very close to the course of the Macumba River, that is, north of Oodnadatta. Graham considered that, despite being described as “roughly approximate” this map of the distribution of the languages has generally stood the test of time.

219    In 1904, Spencer and Gillen published their book entitled “The Northern Tribes of Central Australia” which contains an account of their expedition from Oodnadatta to the Gulf of Carpentaria in 1901-2 and includes data they obtained at the Peake in 1903. They commenced their introduction to this book with a reference to their previous work in which they had, they said, been concerned especially “with the large and important Arunta tribe whose territory, before the white man made his appearance on the scene, extended from about the Macumba River in the south to 70 miles north of the MacDonnell Ranges” (emphasis added).

220    Spencer and Gillen included a map in the book but without indicating boundaries between the various Aboriginal peoples. A copy of this map is set out below.

Map 11: Extract of Spencer and Gillen’s 1904 published map

221    This map has the name Urabunna” between Lake Eyre and Oodnadatta and the “Arunta” to the north of the Macumba/Alberga. The Luritja are to the west.

222    In their 1904 book, Spencer and Gillen described the Luritja as occupying:

The sterile desert country extending southwards around Lake Amadeus [and] also extends over the relatively well-watered country, including the western end of the James and MacDonnell Ranges.

223    The map drawn by Spencer and Gillen during their 1901-02 fieldwork showing the “distribution of Tribes roughly approximate” is consistent with the delineation described in the preceding paragraph but, as Graham and Liebelt pointed out, the line of delineation did not appear in the map which they had published in 1904.

224    Gara referred to a newspaper report of a public lecture given by Gillen in October 1908 in which he stated that Arunta territory “lay between Oodnadatta and about 70 miles north of the MacDonnell Ranges”. In a public lecture three years later, Gillen was reported as saying that the territory of the “Arunta tribe” reached “from Macumba to 50 miles north of Alice Springs”.

225    Spencer and Gillen published another book entitled “Across Australia” in 1912 (again an account of their 1901-2 expedition) in which they said:

The Arunta is probably the largest tribe in Central Australia, and occupies a tract (sic) of country extending from the Macumba River in the south to seventy miles north of the MacDonnell Ranges, a total distance of about four hundred miles; how far the tribe extends east and west there is no means of knowing with anything like accuracy.

226    Later in “Across Australia”, Spencer and Gillen referred to the Arunta as being part of a group forming one large “nation” which occupies all the country from the Macumba River in the south to the Bonney Creek in the north”. Earlier, at pages 18-19, Spencer and Gillen said of the Arabana and the Arunta:

The remnants of the Urabunna tribe are gathered together at the few outlined cattle stations, such as the Peake … The Urabunna tribe occupies the country lying on the north-west side of Lake Eyre; southwards it is in contact with the Dieri tribe and northwards with the Arunta, whose southern boundary is approximately Oodnadatta.

(Emphasis added)

227    Finally, in this work, Spencer and Gillen noted that the Luritja inhabited “the utterly inhospitable country which stretches around the south, west, and north-west of the Arunta country, from Lake Torrens in the south to the far western limit of the MacDonnell Ranges”.

228    Frank Gillen died in June 1912. However in 1927, Spencer published another book in their joint names entitled “The Arunta: A Study Of A Stone Age People”. He commenced this book with the following paragraph:

The Arunta is, or rather was, one of the largest tribes in Central Australia, and still occupies a tract of country extending from the Macumba River on the south to seventy miles north of the MacDonnell Ranges, a total distance of about 400 miles. Thirty years ago, when we first studied it, its members must have numbered at least 2000, now there cannot be more than 300 or 400.

As is apparent, this statement was in part a repetition of the statement in “Across Australia” in 1912.

229    Later in the 1927 book, Spencer described the Arunta as divided into six main divisions with the southern-most division being:

Arunta illyair-Winna, extending from the southern limit of the tribe to about fifty miles north of Engurdina, Horseshoe Bend, on the Finke River.

230    The 1927 Book contained the following “outline map” of the central area:

Map 12: Outline map of the central area

231    In summary, the books of Spencer and Gillen contain five references to the southern boundary of the Arrernte being at or near the Macumba River and one which places the boundary at Oodnadatta itself. I have referred to some but not all of the newspaper reports of statements by Spencer or Gillen. In three of these, the Macumba River is stated as the boundary whereas, in two, the boundary is stated as being at Oodnadatta. In my view, it is appropriate to attach greater weight to the later works of Spencer and Gillen, especially the works published after the period they spent in on-country work with the “Arunta” in 1903. Those works with one or two exceptions placed the southern boundary of the Arrernte at about the Macumba River. The maps accompanying the works are to the same effect.

Tom Hogarth: 1898-9

232    Thomas E Hogarth was the younger brother of Robert Hogarth. He had worked on the stations at Strangways Springs and Anna Creek in the 1870s and 1880s and took over as manager of Anna Creek in the early 1890s. In 1913, he returned to live in Adelaide.

233    Tom Hogarth corresponded with Robert Mathews over a period of about two years commencing in 1898. In a letter in October 1898, Hogarth informed Mathews:

The Arabunna tribe extends northwards to the Macumba Creek, west to Stuart Range about 90 miles, south-east to Hergott Springs 135 miles and Lake Eyre to the east 50 miles. Anna Creek is in about the centre of their country.

(Emphasis added)

234    Hogarth also provided Mathews with a list of the totems associated with the “Matturri” and “Karrara” moieties.

235    In December 1898, Hogarth informed Mathews, apparently with reference to the northern boundary of the Arabana:

The north boundary is the Macumba and the same as you described as the accommodation house on the Overland coach changing station to Alice Springs and about 40 miles north of Oodnadatta. The Macumba runs into Lake Eyre on the north, that is the one I mean. The tribe name of the natives to the north and north-east of Lake Eyre is called Wongkacherra or Wonkooraroo both mixed up also the Arabunna tribe; they can all understand each other but have a different dialect or yabber.

236    In a later letter, Hogarth wrote:

The name of this tribe is Arabunna but does not extend north and south more than 200 miles, East and West about 60 miles. There are about 80 [50?] blacks and halfcastes all told here who have been so long mixed up with the whites that they have lost much of their old original habits.

237    A later letter from Hogarth indicates his understanding that the Matturri and Karrara moieties extended from south of Lake Eyre to Charlotte Waters. Other evidence indicates that that is incorrect in so far as it involves Charlotte Waters.

238    In a letter dated 6 February 1899, Hogarth wrote:

The Neal (sic) River or Creek is not the Alberga. The Alberga is a creek about 25 miles north of the headwaters of the Neal. The Alberga branches out, as you say, into the Angus [sic - Agnes] and Marryatt to the north of the Neals. The Neals goes up to the Everard Range. The Arrabunna tribe of blacks go north past the Neals but not west as far as the Everard Range.

(Emphasis added)

239    In April 1899, Hogarth recorded being told by “a young lubra from the Alberga” who described herself as “Andikarina”, that the “Alberga natives are classed as the same as the Macumba” and named the four sections.

240    It is not necessary to refer to the remainder of Tom Hogarth’s correspondence to which Gara referred. I note that Gara described Tom Hogarth as “a careful and sympathetic observer of the Aboriginal people” whose “descriptions of tribal boundaries in the country west of Lake Eyre are unusually detailed for the time”.

Robert Hamilton Mathews: 1898-1908

241    Robert Mathews described himself in 1900 as having travelled in “all the Australian colonies” over the previous 25 years whilst working as a surveyor and whilst engaged in grazing and mining pursuits. As already noted, Tom Hogarth corresponded with him frequently in the two years between 1898 and 1900. Mathews does not appear to have had any personal knowledge of the Arabana, the Luritja or the Arrernte and instead to have relied on the knowledge he acquired from informants. Tom Hogarth was not his only informant as, in a work published in 1898, Mathews referred to information acquired by “Mr Jackson” from natives he had met “about Oodnadatta, Macumba and Charlotte Waters”.

242    In his paper entitled “Australia Divisional Systems” read to the Royal Society of New South Wales on 1 June 1898, Mathews said:

I have traced the two divisions, Mattiri and Karraru, through a wide extent of territory, reaching from Port Lincoln, via Port Augusta and Farina, to somewhere about Oodnadatta, a distance of over seven hundred miles. From the latter place northerly to the neighbourhood of the James Ranges the tribes are divided into four sections; and thence to the Gulf of Carpentaria they are divided into eight sections …

243    In his paper presented to the American Philosophical Society in 1899 entitled “Divisions of North Australian Tribes”, Mathews said:

The southern portion of the Arrinda and adjoining tribes occupy the Middle Finke and Charlotte Waters, reaching as far south as the Macumba River.

(Emphasis added)

244    In a paper presented to the American Philosophical Society in 1900 entitled “Divisions of the South Australian Aborigines”, Mathews described the Arabana as being part of the “Parnkalla [Barngarla] Nation” which included the Parnkalla, the Nauo, the Nookoona [Nukunu] and the Dieyerie [Dieri]. This was because of their shared cultural features such as initiation rights and the Kararru/Matahari Moieties. Mathews described the “Arrabunna” people as inhabiting “the country from near the Macumba southerly along the western side of Lake Eyre as far as Margaret Creek …” and then extending “up the Neale and Peake Creeks till met by the Andigirina People”. A portion of the map published by Mathews in this work is set out below.

Map 13: Portion of Mathews’ 1900 Map

245    In Map 13, “I” is the Parnkalla (Barngarla) Nation (part of the wider Lakes Group) and the Arrabunna are in the area marked “9”. As is apparent, Map 13 locates Oodnadatta inside Arabana country. The area numbered 8 is identified as that of the “Wonkasora” and “Wonkamudla” which seems generally consistent with Siebert’s map.

246    Mathews described the “Andigarina Nation” (comprised of the Andigarina, Loorudgee [Luritja] and Arrinda [Arrernte] tribes) as:

Bounding the Arrabunna country on the north-west are the Andigarina and friendly tribes, occupying the country up the Alberga river to the Musgrave range and onward to the Petermann ranges and Lake Amadeus where they meet the Loorundgee tribe. The Andigarina and Loorudgee are divided into four sections, called Koomara, Panungka, Bultara and Parulla … This organization, with some modifications in the names of the sections, and in the order of their intermarriage, extends westwards across the colony of Western Australia to the Indian Ocean …

Lying northward of the Andigarina … is the Arrinda tribe, occupying the country at Macumba, Dalhousie, Charlotte Waters and the Lower Finke River, and stretching northwards a considerable distance. They have the same four sections as the Andagrina, and their rules of intermarriage and descent are identical. The Arrinda and Andigarina people have a similar language.

(Emphasis added)

247    Mathews also noted in 1900:

Lying north of the Andigarina, and adjoining also the Wonkaoora and Wankamudla … is the Arrinda tribe, occupying the country at Macumba, Dalhousie, Charlotte Waters and the Lower Finke River … They have the same four sections as the Andigarina and their rules of intermarriage and descent are identical.

248    In a paper which he read on 5 October 1906 and entitled “The Arran’Da Language, Central Australia”, Mathews commenced by saying:

We encounter the southern limit of the Arranda language about Oodnadatta, the present terminus of the trans-continental railway from Adelaide towards Port Darwin. The language continues northerly from Oodnadatta to Charlotte Waters and onward to Glen Helen Cattle Station and Alice Springs, in the MacDonnell Ranges.

(Emphasis added)

249    In a paper presented to the Royal Society of New South Wales in November 1906, Mathews stated:

All the way from about Oodnadatta or Alberga Creek to Alice Springs, and Glen Helen Cattle Station, the people speak the Arran’da language, or dialects of it.

(Emphasis added)

250    Later in the same paper, Mathews said:

The Lō-rit-ya or Lō-ritch-a tribe adjoins the Ar-an‘-da on the west.

251    In 1908, Mathews published “Marriage and Descent in the Arranda Tribe, Central Australia”. He commenced by saying:

As there is a difference of opinion among ethnologists respecting the line of descent in the Ar-ran’-da tribe at Alice Springs and the Finke River in Central Australia, I have endeavoured to obtain correct details on this important point. The sources of my information are men who have resided in the country of the Arranda tribe for many years. These men have taken a vast amount of trouble and have spent much time in answering my inquiries, which have been repeated in various forms and at different period during the past 12 years.

The territory of the Arranda (or Arunta of Spencer and Gillen), reaches from about Macumba River to Alice Springs and the upper Finke River.

(Emphasis added)

252    It was common ground that Mathews’ works are well regarded. His contributions to ethnography have been acknowledged by Ronald and Catherine Berndt, Norman Tindale and AP Elkin to whom I will refer shortly. His experience as a surveyor may well have made him particularly conscious of precision in map-making. Tindale in his 1974 book “Aboriginal Tribes of Australia” wrote of Mathews:

[M]y years of field survey have convinced me that the facts given by Mathews, where they have been checked and properly understood, pass all tests. The manner in which Mathews’ data on tribes has fallen squarely into place, item by item, has given me profound respect for his integrity and zeal in the pursuit of knowledge of the aborigines.

253    While on two occasions Mathews showed the Aranda or Antakarinja country extending to “about” Oodnadatta, the otherwise consistently identified Arrernte country as extending northwards from the Alberga and the Macumba.

AM Helling: 1899

254    Liebelt referred to a letter from AM Helling to RH Mathews dated 11 March 1899 in which Helling said that he had made “enquiries of several different Blacks” in order to answer questions asked by Mathews. He said that “the Wonkarrabannas [reach] as far as the “Peake Station” and not to “Oodnadatta” as stated in your pamphlet, [t]heir southern boundary being about Hergott Springs and Lake Eyre on the East”. Helling also said that he was able to speak the “Ahminny, Wonkaooroo [and] Wonkarrabanna dialects”.

255    The Walka Wani relied on this as another piece of evidence indicating that the country of the Arabana was south of Oodnadatta.

256    I agree that the Helling letter does point in the direction for which the Walka Wani contend. However, Corrarie Station from where Helling wrote the letter is located north-east of Lake Eyre and almost due east of Oodnadatta, well away from the Overlap Area. There is no indication of Helling ever visiting Oodnadatta. Moreover, the places to which he referred in the letter or for which he gave descriptions all seem to be located north or north-east of Corrarie Station and none are in the vicinity of Oodnadatta. There is accordingly uncertainty about Helling’s sources.

257    Helling’s statement is inconsistent with the 2012 Arabana Determination which does have Arabana country extending north of Oodnadatta (to the north-east).

258    For these reasons, while I do not disregard the Helling letter, I do not consider that it would be appropriate to give it significant weight.

Summary of the early ethnographical-historical material

259    If one paused at this point, one would say that Giles, Robert Hogarth (in his 1885 paper) and Patrick Byrne (insofar as he thought that the Aroondah (Arrernte) extended 90 miles south), Howitt, Stirling, Spencer and Gillen, Tom Hogarth and RH Matthew consistently put the boundary between the Arabana and the Lower Southern Arrernte north of Oodnadatta and, mostly, at the Alberga/Macumba Rivers. Those who would have the present Overlap Area within the land of the Arrernte are Woods, possibly Gillen and Warburton (but at least with respect to Gillen, his view must be taken to have been overtaken by his later investigations), East, Kempe, Siebert and Helling. Helms would have the boundary at Oodnadatta itself.

260    The obvious point of difference between these two groups is that it is those who themselves spent time in the region and/or who undertook investigations in some detail who expressed the former view. The latter group comprises persons who did not themselves visit the region at all or who spent only limited time there. As counsel for the Walka Wani put to Sackett, the fact that the Arrernte language and the Arabana language are very different, and the fact that many of their customs, rights and practices differ, should make one suspicious about aspect of East’s statement. The same may be said of the others who thought that the Arrernte country extended northwards from the Peake. It is also appropriate to keep in mind Black’s description of several of the sources on which the Walka Wani relied (Woods, East, Kempe and Gillen and Warburton) as “very minor”.

261    Nevertheless, there does remain the question of how it was that Arrernte speaking people, or people associated with the four section system, were at locations south of Oodnadatta. There are a number of possible reasons, as Sackett pointed out: marriage, ceremony or visiting a kinsperson and there are other explanations including early dislocation associated with, or consequent upon, the construction of the Overland Telegraph Line, trade, or general mobility. There is support in the evidence for each of these explanations. In particular, there is support for the view that the construction of the Overland Telegraph Line, and the route associated with it, led to considerable Aboriginal mobility up and down the Line. However, the presence of Arrernte speaking people may also be attributable to their exercise of “user” rights, a concept which looms large in the resolution of the Walka Wani applications.

Early 20th Century ethnographic-historical material

Erhard Eylmann: 1908 (Sackett [148])

262    Sackett referred to the work of this German ethnologist who worked in Australia intermittently between 1896 and 1912. During that time he went on several expeditions from Adelaide to Darwin and return. In 1908 he published (in German) “The Aborigines of the Colony of South Australia”. This included a map in which placed the Wonkagnurra to the east-northeast of Lake Eyre, the “Urabunna” to the west of Lake Eyre and the “Arapani” to the west of the Arabana. In addition, it shows the “Arunta” north of Charlotte Waters and the “Lurritja” west of the “Arunta”. On this basis, Sackett considers that Eylmann had Oodnadatta in the lands of the Urabunna. I accept that this is so but do not think that its evidential value rises above consistency with other more cogent evidence.

Carl Strehlow: 1910

263    Pastor Carl Strehlow spent many years as a missionary at Hermannsburg in the Northern Territory. Before commencing at that mission he spent a short time at the Killalpaninna mission located to the east of Lake Eyre. Pastor Strehlow was in Hermannsburg initially from 1894 to 1910 and returned to it in 1912.

264    In 1910, Pastor Strehlow published in German a major work on the “Aranda” and “Loritja” tribes in Central Australia. He described the Aranda as comprising sub-groups with the southern-most being the “Aranda Tanka”. The map which he included in the work (a portion of which is set out below) shows the southern-most boundary of the “Aranda Tanka” as being a little to the south of Oodnadatta.

Map 14: Portion of Pastor Strehlow’s 1910 Map

265    Graham and Liebelt, and the Walka Wani, assumed that the term “Aranda Tanka” was a reference to the LSA, but there was no evidence as to what Pastor Strehlow meant by that term.

266    Graham and Liebelt placed reliance on Pastor Strehlow’s map as supporting the Walka Wani claim. They suggested that Pastor Strehlow had acquired an understanding of “group distributions” during his time at Killalpanina Mission and that the map reflected that understanding. However, Pastor Strehlow’s son, TGH Strehlow, the well-known Australian linguist and anthropologist, identified his father’s principal informants as being men from the north and west of “Aranda” country. If this be correct (and there is no reason to doubt it), it is likely to have affected the reliability of Pastor Strehlow’s identification of the southern extent of Aranda country, as Hermannsburg is about 500 km north of Oodnadatta. Providing some support for the assessment of TGH Strehlow is that there is no evidence that Pastor Strehlow travelled extensively in the area of the LSA.

267    In the oral evidence, it emerged that Pastor Strehlow had not drawn the map himself. The editor of the section in Pastor Strehlow’s work in which the map appears (von Leonhardi), said that “the residential area of the tribes have been entered [on the map] according to information supplied by Strehlow and Missionary Siebert. For the sake of completion we have used the map from the works of W.E. Roth, Howitt and Spencer and Gillen” (emphasis added). It is accordingly not a map drawn by Pastor Strehlow himself. While Siebert, Howitt and Spencer and Gillen are familiar, there was no evidence as to the identity of W.E. Roth. The description of the map as a map of “residential areas” may imply that it was a map about where people were found at the time, rather than an identification of their country. There is no other description of the map. Graham acknowledged that the mapping in Pastor Strehlow’s map went beyond the areas of his expertise. Graham also agreed that Anna Kenny, who had written a significant work entitled “the Aranda’s Pepa” in relation to Pastor Strehlow’s work, had noted that Pastor Strehlow had not in his writings defined exactly the territories of (relevantly) the eastern and southern Aranda. Ms Kenny also considered it impossible to judge what Strehlow’s names and language reasons orally indicated.

268    In my view, these matters diminish significantly the weight which can be attached to Pastor Strehlow’s map.

Wilhelm Schmidt: 1919

269    Graham and Liebelt referred to the work of Fr Wilhelm Schmidt, a Catholic priest, published in 1919 entitled “Classification of the Australian Languages”, being a substantial work on Australian languages. They reproduced a map published by Fr Schmidt which they submitted indicated that Oodnadatta was within “Aranda” country. The map has the title “Map of the Indigenous Languages of Australia” written in German. It became Map 29 in the book of maps tendered at trial.

270    Graham and Liebelt noted that Fr Schmidt had founded “the prestigious journal, Anthropos, which remains to this day a premier anthropology and linguistic journal”. On this basis they regarded his map as providing support for their view of the boundary between Arrernte and Arabana country.

271    Father Schmidt had written in German, and the Walka Wani did not produce either the original German work or an English translation for it. Nor did Graham and Liebelt seek to identify the sources on which Fr Schmidt had relied.

272    The Arabana led evidence from Stockigt and Black about Fr Schmidt’s map. Stockigt described Fr Schmidt’s work as the first attempt by a linguist to classify Australian languages using the entire body of sources then available. She noted that there had been a debate in the 19th Century about whether Aboriginal languages comprised a single language with many dialects or multiple languages. In that context, Fr Schmidt had looked at all the early literature about Australian languages and had tried to group them into higher level families. Stockigt has studied Fr Schmidt’s classifications and has compared them with later classifications.

273    Father Schmidt did not himself draw the map on which Graham and Liebelt relied. In fact, he did not ever come to Australia to conduct his own field work. Stockigt said that someone called Streit had drawn the map on the basis of information supplied by Fr Schmidt. The extract of the Map is as follows:

Map 15: Map extract from Schmidt 1919

274    Stockigt’s assessment of the sources used by Fr Schmidt, coupled with his own acknowledgements, indicated, in effect, that there were only two maps which may have been the sources for Fr Schmidt’s map (so far as relevant to the Overlap Area), one of which was Pastor Strehlow’s 1910 map. The other was RH Mathews but, as noted earlier, he consistently had the southern boundary of the Arrernte as being at the Macumba and Oodnadatta within Arabana country. See Map 13 above. Gara thought that Fr Schmidt had followed Pastor Strehlow’s map. Otherwise, Fr Schmidt had made use of word lists, not all of which he (Fr Schmidt) regarded as reliable. I accept Stockigt’s evidence about these matters. Graham seemed to recognise the limitations in Fr Schmidt’s map as he said that it was “just here to give an idea as to where [the languages] were spoken” and that “any high school student could look at these articles and then sort of draw lines based on them”.

275    Father Schmidt’s map seems to be in the nature of a broad brush indication (indicated, amongst other things, by its closely parabolic shape in this region) of language distribution, rather than an attempt at geographic precision.

276    In these circumstances, I am disinclined to attach significance to Fr Schmidt’s map in the determination of the country of the LSA and the Arabana. I note, however, that it does not provide any support for the claim that Yankunytjatjara country extended over the Overlap Area.

Dr Herbert Basedow: 1920

277    Dr Basedow was a medical doctor and anthropologist who carried out three expeditions between 1919 and 1920 in the north and west of South Australia. On those expeditions, he conducted a survey of Aboriginal health. In particular, between May and September 1920, Basedow travelled throughout the northern central part of South Australia and the southern part of the Northern Territory, visiting Finniss Springs, Stuart Creek, Oodnadatta, Macumba, Dalhousie, Charlotte Waters and other stations and settlements along the rail and telephone lines. As part of his work, Basedow recorded the names and other details of about 250 Aboriginal People to whom he talked or provided treatment.

278    Basedow reported to the South Australian Government on the “Tribal Organisations” as follows:

The country extending centrally northwards from Hergott Springs [Marree] to the Northern Territory boundary is occupied by three tribes, - the Arrabonna, the Aluridja and Arunndta. The Arunndta is the largest of all Central Australian tribes, and its domain includes all ground along the northern overland track between Mount Dutton and the MacDonnell Ranges. The Aluridja territory adjoins it on the west and embraces the eastern Musgrave Ranges. The Arrabonna area lies immediately south of the Arunndta. A subdivision of the Aluridjas living at Indulkinna goes by the name of Unndagerrinya.

279    Mount Dutton is approximately 50 km south-east from Oodnadatta so Basedow’s report places Oodnadatta within “Arrunndta” country. However, Basedow gave some further context to his observations. He noted that the recent influenza epidemic had had a disastrous effect in many centres and, in Hergott Springs and Oodnadatta, had “almost completely annihilated resident groups”. He described the decrease in the numbers at Anna Creek as “appalling” and said that the entire Aboriginal population in the settled districts between Hergott Springs and the Northern Territory border was approximately 300.

280    Basedow recorded the name, location and “tribe” of each Aboriginal person he examined. Somewhat curiously, he does not record the examination of any Aboriginal person at Oodnadatta, although he visited Oodnadatta twice. This may indicate that there were no Aboriginal persons in Oodnadatta at the times of his visits.

281    Lucas provided a bar graph demonstrating pictorially the locations and “tribes” recorded by Basedow, which I reproduce below.

282    Like Lucas, I consider that Basedow’s data gives a snap shot picture of where the Aboriginal populations in and around the Overlap Area were centred at the time of his expedition.

283    Graham and Liebelt concluded with reference to Basedow’s data:

[T]here is a pattern, the Arabana are overwhelmingly where Pastor Strehlow, Stirling, Spencer and Gillen suggests they will be; that is, in the vicinity of Lake Eyre. The Arrernte again are where we would expect to find them, going from previous sources, some south of Oodnadatta at Anna Creek and Algebuckina, nearby on Allandale, and north of Oodnadatta at Todmorden and Dalhousie and its vicinity. The Antikarinya were examined by him on Todmorden and at Federal, again consistent.

284    In my view, this assessment is a gloss on the works of Pastor Strehlow, Stirling and Spencer and Gillen referred to above. It also overlooks that Robert Hogarth, Stirling, Spencer and Gillen, Tom Hogarth, Mathews and probably Helms, considered (expressly or implicitly) that Arabana country extended north to the Macumba River and makes no allowance for the prospect that the locations of the Antakarinja People were the result of easterly movement post European contact. Likewise, the presence of some individual Arrernte at Allendale, Algebuckina and Anna Creek may be the result of post effective sovereignty movement by those people. In any event, Basedow’s data suggests that the LSA in 1920 were concentrated north, and the Arabana south, of Oodnadatta.

285    It is also unclear that Basedow’s account can be regarded as independent of Pastor Strehlow’s. There is no direct evidence of liaison between Pastor Strehlow and Dr Basedow but, like Sackett, I consider that it would be a remarkable coincidence if both had concluded, independently of one another, that the southern extent of Arrernte land took in Oodnadatta.

AP Elkin: 1931-1940

286    Professor Elkin was Professor of Anthropology at Sydney University from 1933 to 1956, Graham and Liebelt described him as having been, for many decades of the 20th Century, the foremost authority on Aboriginal social anthropology. Elkin conducted some fieldwork with Arabana People at Warrina 60 miles south of Oodnadatta in March 1930 and subsequently with members of various Western Desert groups at Oodnadatta, Macumba, Welbourn Hill, Todmorden and Ernabella. He described his purpose as being “to make a study of the social organisation of the remaining tribes of South Australia”.

287    Elkin described Oodnadatta as being a “valuable base” for the first six months of his work by reason of being “conveniently situated” and also because it “is usually frequented by natives from further west, with whom I was able to work whenever I was delayed for a few days in the township” (emphasis added).

288    Elkin recorded in his field book for his 1930 fieldwork:

Arabana goes west from Warrina to Nilpinna Station – down to Anna Ck + to Stuart’s Ck – and up to Macumba.

289    In another notebook, Elkin recorded:

Aluridja country – east to Mt Sarah (this side of line) – south to Angle Pole – north – to just below (south of) Horseshoe Bend Station.

Alaruna = lang just south of Horseshoe Bend.

Aranda starts up old Crown – down Finke + Macumba to Oodnadatta …

290    In 1931, Elkin published in Oceania an article entitled “The Social Organisation of South Australian Tribes” reporting results of his fieldwork. He said (relevantly) that he had spent a week at Warrina “with a few Arabana and Wongkongaru, and then a few days at Oodnadatta with some Madutara”.

291    Elkin then travelled north into Central Australia before returning to Oodnadatta. He recorded:

I spent a very profitable week at Macumba working with the southern most extension of the Aranda; the social and totemic organisation of this sub-tribe shows affinity to both the Madutara and Aluridja on the west and the Wongkongaru on the east. Another week was then spent in Oodnadatta working over some of my results with western natives who happen to be there.

(Emphasis added)

292    On the basis of his research, Elkin proposed a “division” of the Aboriginal people in South Australia into social groups based upon features he had identified in their organisation. In particular, he proposed a major “eastern” or “Lakes” and “western” division of groups. Elkin then reported that “a southern portion or sub-tribe of the Aranda occupies the country along the Macumba River almost to Lake Eyre, and so forms a buffer between the northern tribes of the first two groups” (emphasis added). He used the expression “Macumba sub-tribe” more than once in the article.

293    Elkin included a map of the social divisions he had identified, which I set out below.

Map 16: Elkin’s 1931 Map

294    Graham and Liebelt seemed reluctant to acknowledge that this map of Elkin was inconsistent with their thesis concerning the country of the LSA. They said:

As the Arabana kinship shading extends well to the north of the town, one could assume [Elkin] intended Oodnadatta to be, at least partially within an area that shared at least some Arabana sociology though he is unclear on this …

295    Graham and Liebelt also considered that the fact that Elkin had drawn his line through Oodnadatta indicated that it was “divided ‘50-50’ between Arabana and Western Desert kinship systems” and that this had “to show that his opinions included that people possessing Western Desert social features were located this far to the east in South Australia”.

296    Elkin also recorded:

The totemism of the Macumba sub-tribe has thus affinities with both the Eastern and Western Groups, while its altjira mythology and aknaninidja (knaninja of Spencer and Gillen) totemism show its relationship to the northern Aranda.

297    In an article published in 1938 in Oceania entitled “Kinship in South Australia”, Elkin revised his map of the social division of tribes in South Australia. The revised map is as follows:

Map 17: Elkin’s 1938 Map of Kinship and Social Organisation in South Australia

298    As is apparent, this map placed Oodnadatta within the area of the Aluridja but south of the area of the Aranda.

299    In the same publication, Elkin said:

[A] third region is the country of the Southern Aranda, extending from about Charlotte Waters on the Northern Territory boundary down the Finke and the Macumba to the vicinity of Lake Eyre; on their south of the Arabana, on the east the Wongkonguru, and on the west the Aluridja. The Southern Aranda are distinguished from the rest of the Aranda by the absence of the subsection system which had not spread to them; in its place they have the section system. They are different in this respect from the ‘Lakes’ Group, as also in not possessing matrilineal moieties and clans.

300    Generally, in relation to the LSA (whom he distinguished from the Arrernte more generally), Elkin had their country extending south to the Macumba and then east towards Lake Eyre. He has, however, shown Oodnadatta as either being in the lands of the Antakarinja or at least on its border. Given the relatively small size of the Overlap Area, that is not inconsistent with the 2006 Yankunytjatjara/Antakarinja Determination.

301    It was common ground among the anthropologists that the maps of Elkin were intended to illustrate aspects of his discussion of social organisation (kinship) rather than being a representation of tribal boundaries or geography. However, taken at face value, Elkin’s 1931 map locates Oodnadatta west of the dividing line between the Arabana and Western Desert kinship systems but also shows Arabana country as extending north from Oodnadatta. Elkin referred on several occasions to the “Macumba sub-tribe of the Aranda” and that he found members of this sub-tribe at Oodnadatta or on nearby Macumba Station. This may be taken as an indication of the presence of LSA at Macumba and Oodnadatta at the time of Elkin’s field work (I note that Gara considered that Graham and Liebelt’s statement that Elkin had found about 50 members of the Macumba sub-tribe either at Oodnadatta or on nearby Macumba Station to be incorrect as he had not located any statement by Elkin that he had found Macumba people in the Oodnadatta area).

302    Elkin published another map in 1940, which I set out below as Map 18.

Map 18: Elkin’s 1940 Map

303    As is apparent, in Map 18, Elkin again placed Oodnadatta on the western side of the east-west divide, that is, outside the area of the Arabana and within the area of the “Alur Idja” and the Andekarinja.

304    Elkin also recorded the difference between the “Southern Aranda” and their northern neighbours, saying:

The third region is the country of the southern Aranda extending from about Charlotte Waters on the Northern Territory boundary down the Finke and the Macumba to the vicinity of Lake Eyre; on their south are the Arabana, on the east the Wongkonguru, and on the west the Aluridja. The Southern Aranda are distinguished from the rest of the Aranda by the absence of the subsection system which had not yet spread to them; in its place they have the section system. They are different in this respect from the “Lakes” Group, as also in not possessing matrilineal moieties and clans. The kinship system is the same as amongst the Aranda …

305    Elkin also reported:

[A]ccording to one of my Alurija [Luritja] informants, the Aluridja people moving South, displaced a portion of the Arabana tribe from the Oodnadatta district, so in between these two movements of people, the Aranda spread down the Finke south of Horseshoe Bend and Charlotte Waters and so across into South Australia.

306    Elkin recorded in his third notebook of his 1930 field trip that he had been informed by Butcher Dick at Welbourn Hill (approximately 160 km west of Oodnadatta):

This station really = Arabana country

first time

307    Lucas also noted a reference by Luise Hercus to Butcher Dick:

Hercus (1994:21) refers to Dick Butcher (seen at Indulkana in 1966) as ‘… an old man belonging to the Ngunthiya-Ngunthara, the easternmost of the Western Desert groups’. He ‘… recalled having heard from his father of ‘war’ that must have been waged in the middle of the nineteenth century in which Aranda people were ousted from the Mt Chandler-Lambina area by the easterly push of the Western Desert people, the Yangkuntyatyara and Antikirinya. This meant that some of the evicted Lower Aranda came to settle in Arabana country and there was considerable intermarriage between them and the Arabana people’. Elkin recorded Butcher Dick’s totem as ‘Kalea’ (karlaya/kalaia, emu) and that he was born at Lambina.

(Emphasis added)

308    Elkin considered that there had been westerly movement by the Western Desert people and southerly movement by the Arrernte. In his 1934 work entitled “Cult Totemism and Mythology in Northern South Australia”, Elkin said:

These Aluridja [Luritja] groups seems to have been migrating west and south and east in the far past, as they have been doing since the white settlement of South and Western Australia.

(Emphasis added)

309    In his 1939 work entitled “Kinship in South Australia”, Elkin spoke again of the movement of Arrernte and Aluridja people into the Oodnadatta area:

Just as the Dieri have a tradition of being pushed south to their present location by the Wongkonguru, and as, according to one of my Aluridja informants, the Aluridja peoples moving south, displaced a portion of the Arabana tribe from the Oodnadatta district, so in between these two movements of peoples, the Aranda spread down the Finke south of Horseshoe Bend and Charlotte Waters and so across into South Australia. Their movements may even have been a contributory cause of the southern migrations of the Wongkonguru and Aluridja, their eastern and western neighbours respectively.

310    Later in the same work, Elkin wrote again of the migration southwards:

[T]he Aborigines of western South Australia have been in a continuous state of migration southwards for some decades; a movement which I believe was in progress before the coming of the white man. This explains the similarities of dialects, kinship systems and mythology over such a vast area, and also the difficulty of fixing definite tribal boundaries and names.

311    Sackett concluded with respect to Elkin that, while he provided much information concerning aspects of the broad socio-cultural groupings of the region, his “mentions and mappings of the Oodnadatta area are too minimal, mixed and inconsistent to be able to ascertain from them in whose lands the township lies”.

F Fenner: 1936

312    Frank Fenner was the Professor of Microbiology at the Australian National University and, in 1934, participated in an expedition of the Board for Anthropological Research to Pandi Pandi and Mirra Mitta Stations. In a report on the expedition, Fenner included a map containing “the approximate boundaries of the territories of the various Aboriginal tribes of north-eastern South Australia”. This map was constructed from information supplied to him by Norman Tindale (to whom I will refer shortly). The map (Map 19) is as follows:

Map 19: Map of Frank Fenner

313    I am disinclined to attach much weight to this map. It shows Arabana land extending all the way to the Northern Territory border and the Arrernte not extending below that border. To this extent it is not consistent with any other historian or ethnographer. The precise basis upon which Fenner prepared the map has not been shown.

Ronald and Catherine Berndt: 1939

314    Graham and Liebelt referred to the work of the well-known anthropologists, Ronald and Catherine Berndt. In 1939, Ronald Berndt carried out field work at the Ooldea Soak, four miles to the north of the Ooldea siding on the east-west transcontinental railway line. Berndt recorded meeting Anta’kirinja People (and others) at the Ooldea Soak. In the work published in September 1941 on this field work entitled “Tribal Migrations and Myths Centering on Ooldea, South Australia”, Berndt recounted the report which he had received from Mr Wakerley of the United Aborigines Mission (UAM) at Oodnadatta that there were five different tribes congregated in the vicinity of that town, being Anta’kirinja, Aranda, Pitjandjara, Arabana and Unganoora. He also reported on the gradual movement south and east of the Anta’kirinja (at 5).

315    At 268 of the 1945 “A Preliminary Report of Field Work in Ooldea Region Western SA 1945”, the Berndts said “the ‘Antinari seemed to have belonged to the country adjacent to and south of the Alberga Creek; their territory did not include Oodnadatta. Those Antinari who were the prominent group in the Oodnadatta native camp during our recent visit to that region pronounced their tribal name as ‘Antinari or ‘Antinarinja”. Like Graham and Liebelt, I regard this as evidence that the Berndts had found Arrernte and Western Desert people in the claim area in 1945.

316    However, the Berndts also reported:

The ‘Andingari seemed to have belonged to the country adjacent to and south of the Alberga Creek; their territory did not include Oodnadatta. Those ‘Andingari’ who were the predominant group in the Oodnadatta native camp during our recent visit to that region pronounced their tribal name as ‘Andingari’ or ‘Antingaringja’ a considerable portion of these people were allied by ties of marriage to ‘Pitjandja’ (of the Ernabella area), ‘Aranda’, ‘Aluridja’ and ‘Arabana’.

(Emphasis added)

317    Graham and Liebelt also referred to extracts from the Berndts’ 1951 book “From Black to White in South Australia”, to which it will be necessary to return on one topic. I do note, however, the Berndts’ report that “historically the Antingari of the Alberga and desert country always possessed some associations with the southern Aranda”.

Later 20th Century sources

TGH Strehlow: 1947 and 1971

318    TGH Strehlow was the son of Pastor Carl Strehlow and a Reader in Linguistics at the University of Adelaide. He grew up speaking western (Hermannsburg) Arrernte, trained at the University of Adelaide and began detailed anthropological fieldwork with Arrernte people in 1932. He continued to do so for much of his later life, although primarily with the Northern Arrernte.

319    TGH Strehlow published a number of maps showing Arrernte boundaries. Graham and Liebelt referred to two, being those published in 1947 and 1971. In relation to the 1947 map, Strehlow indicated that he had less familiarity with the Arrernte in South Australia but did say:

Southern Aranda area with which I am personally familiar extends from Running Waters on the Finke River in the north-west, and Bad Crossing on the Hugh River in the north, to Old Crown Point on the lower Finke in the south-east. I am, of course, fully aware that Aranda dialects are spoken much further south than Old Crown Point. It has been stated by writers that the Aranda tribe once extended as far south as Oodnadatta in South Australia; and my northern Aranda informant Gurra, who, when he was a young man, was employed on a station situated near Quorn, confirmed this statement, saying that Aranda was once spoken from Central Mount Stuart in the north to Oodnadatta in the south. I have been unable to visit the area below Old Crown Point personally.

320    The Old Crown Point to which Strehlow referred is in the Northern Territory, well north of Charlotte Waters.

321    In his 1971 map, which Graham, Liebelt and Sackett accepted should be regarded as “more considered” than the 1947 map, TGH Strehlow showed the areas of the Lower Southern “Aranda” and the Arabana with the boundary between them just to the south of the Alberga and the Macumba Rivers and approximately 25 kms north of Oodnadatta. Strehlow’s 1971 map is as follows:

Map 20: TGH Strehlow’s 1971 ‘Lower Southern Aranda’ map

322    As is apparent, Strehlow, who had now identified the Lower Southern “Aranda” (as an extension of the Southern Aranda) placed them well north of Oodnadatta and Western Desert people well west of Oodnadatta.

323    In his 1971 field diary, Strehlow recorded (with underlining) “the whole of the Neales River is Arabana country”.

324    In her work entitled “The Western Desert Boundaries with Aranda and Arabana”, Dr Luise Hercus (to whom I will return shortly) gave the following endorsement of the reliability of TGH Strehlow’s work by reason of his insistence in obtaining information only from senior people who had acquired their knowledge from persons who were alive at or shortly after the time of effective sovereignty:

It was well known he was ultra-correct and conservative: he did not speak to, never mind elicit information from, any junior person, anyone whose knowledge was suspect or he thought might not have authority to speak … Because of this conservatism it is certain that he got much of his early information from people who grew up in the eighties of the last Century, and his later information (just as I did) from people who had constantly heard about the situation in the eighties from their seniors, and who had learnt songs and stories based on even older material. His map therefore on the whole appears to reflect the situation of the period of the eighties. It shows young Yankunytjatjara people having caused the Antakirinja to move further east with the boundary of the Aranda-Arabana vs Antakirinja being near Todmorden.

Norman Tindale: 1940 and 1974

325    In his “Distribution of Australia Aboriginal Tribes” published in 1940, Tindale gave descriptions of the lands held by the Antakarinja, Aranda, Arabana and Wongkanguru respectively. He reflected these descriptions in the following map:

Map 21: Tindale’s 1940 Map of the Area of the Overlap

326    As is apparent, Tindale depicted the Overlap Area as well within Arabana land. The Antakarinja were to the north-west and the Southern Aranda to the north.

327    Tindale’s 1974 map of the area around Oodnadatta showed the Lower Southern “Aranda”, the Antakirinja, the Arabana and the Wongkanguru. Tindale based this map on the information provided to him by TGH Strehlow. It shows the Lower Southern “Aranda” area as extending south to about the Macumba but, in any event, north of Oodnadatta; the Arabana area extending at its northern most point to abut the Lower Southern “Aranda” area and therefore as encompassing Oodnadatta; and the Antakirinja area well to the west.

Map 22: Tindale’s ‘Tribal Boundaries in Aboriginal Australia’ 1974 Map

328    Both Lucas and Sackett regarded Tindale’s map as being a summation of the reports of others rather than based on Tindale’s own field work. Tindale had recorded that he had relied heavily on information provided by TGH Strehlow.

329    Hercus described Tindale’s map as representing a later stage than that of TGH Strehlow. She also said that Tindale’s map “probably represents Western Desert expansion as the date of about 1900”, noting that Oodnadatta in 1900 was “still very much an Arabana place, with some Aranda people there too”.

330    Graham and Liebelt said of the map of TGH Strehlow used by Tindale:

TGH Strehlow does have Macumba within Aranda land along with the Western Desert speaking group to the immediate west of Oodnadatta, again essentially consistent with the present Applicant Group members’ understanding.

That may be so (although Sackett suggested that it was “wide of the mark” for Graham and Liebelt to say that TGH Strehlow and Tindale had a Western Desert speaking group to “the immediate west of Oodnadatta”), but it is plain that both maps show the whole of the Overlap Area as being within Arabana country. That accords with the accompanying written descriptions given by Tindale.

331    Tindale also appeared to give an endorsement of TGH Strehlow’s findings:

The detailed work over many years of T.G.H. Strehlow has produced very detailed data about the boundaries and character of the several tribes that fall together under the name Aranda. Strehlow was happy to supply data, incorporating his field observations up to the year 1960. He is now sure that the Southern Aranda country touched on Arabana lands at Macumba, which is an Arabana, not Aranda, place name.

(Emphasis added)

Luise Hercus: 1971-2018

332    Hercus, who died in 2018, was recognised as one of Australia’s most senior and authoritative linguists. She authored numerous publications with references to the languages in northern South Australia and it was common ground that she had a good overview of the anthropology of the Lakes Group. Arabana was one of the principal languages on which she worked. Hercus conducted extensive field work in the Oodnadatta region. That field work included work with the Arrernte and the Wangkangurru, as well as the Arabana.

333    In many of her publications, Hercus provided maps showing the locations of the languages which she discussed, including Arabana. An extract from her 1971 languages map is set out below as Map 23:

Map 23: Hercus’ 1971 languages map

334    Graham and Liebelt suggested that this map is consistent with the late 19th Century findings of Carl Strehlow, Stirling, Spencer and Gillen. With due respect, this inference is not convincing, and appears to be based on little more than Hercus having placed the name “Arabana” to the west of Lake Eyre and south east of the Peake Station. That reasoning is plainly unsound. Hercus did not show the LSA or the Antakarinja at all in her 1971 map, even though the Macumba and Neales Rivers were clearly marked. The understanding of the map proposed by Graham and Liebelt is also inconsistent with the languages map which Hercus published only one year later, in 1972, which shows Oodnadatta well within Arabana country:

Map 24: Hercus’ 1972 Map

335    In the publication entitled “A Grammar of the Arabana-Wangkangurru Language” (1994), Hercus said:

Since Basedow's day Antikirinya people have gradually taken over the Oodnadatta area, and in the 1960s there were many of them even in the heartland of Arabana country at Anna Creek. Today there is not one single person of predominantly Arabana descent at Oodnadatta and only one at Anna Creek. The majority of the remaining Arabana people live outside their own traditional country at Marree and Port Augusta.

336    In this 1994 work, Hercus published a map drawn by Vlad Potenzy entitled “More detailed map of Arabana-Wangkangurru Country”:

Map 25: “More detailed map of the Arabana-Wankangurru Country”

337    The name “Piltapalta” on the map is a regional dialect of Arabana. Mr Strangways, a senior Arabana man, described Piltapalta, Midlarilri and Wangkakupa as subgroups of the Arabana.

338    As is apparent, Map 25 shows the country of the LSA as north of the Macumba River.

339    In her work entitled “The Assessment of Aboriginal Cultural Significance of Mound Springs in South Australia” prepared for the South Australian Department of Environment & Planning in December 1985, Hercus reported:

Since the early years of this Century, persons of Antikirinja (Western Desert) origin had been coming to live and work in Arabana country, particularly at Oodnadatta and Anna Creek. Some senior men, such as the late Yumpy Jack, were actually born there. It would not occur to the more traditionally minded among them to dispute Arabana custodianship, but they like to be kept informed about any developments that might affect the mound springs.

(Emphasis added)

340    In her 1989 work entitled “The Status of Women’s Cultural Knowledge” with the subtitle “Aboriginal society in north-east South Australia”, Hercus included:

The worst blow for the status of women’s cultural knowledge in the Lake Eyre Basin was the arrival from about 1900 onwards of large numbers of people of Western Desert origin, particularly Antakarinja on Anna Creek station, at Oodnadatta and Macumba, and of Kukata people on Stuart Creek station. Amongst these Western Desert people women had separate knowledge and separate sites, but the overall responsibility was male. Arabana women had not previously had the same need for separate sites, and so they found themselves altogether disinherited.

(Emphasis added)

341    With respect to the LSA, Hercus reported that the oldest surviving LSA woman had knowledge of sites in the Dalhousie area (well north of Oodnadatta).

342    In her chapter entitled “Aboriginal People” in the Natural History of the North-East Deserts published by the Royal Society of South Australia in 1990 (eds MJ Tyler et al), Hercus included a map based on Tindale’s 1974 map. This indicated Oodnadatta and its surrounds within Arabana country and the country of the LSA well to the north. Hercus also said:

The views of Howitt, Elkin and Tindale about this area cannot simply be ignored: they were there when traditional systems were much more in place. However, it has become evident that traditional territorial boundaries were far more sophisticated than was originally thought. This increased understanding has come about gradually, and is mainly due to the important paper by Stanner (1953) and the 1973 discussions of Peterson (1976). The situation is particularly intricate in the north east where there were complex social and cultural links. Wangkangurru people did not talk about ‘boundaries’, there is in fact no such word in the language. They thought of the matter positively in terms of who ‘owned’ an area. They were conscious of a series of places where their territory ‘cut out’ and someone else’s began. Another way of talking about it was to say that one was ‘sorry’ because ‘that is the end of the country’. This ‘cutting out’ was viewed in some areas as quite definite, but sometimes it was viewed as more gradual, the neighbouring people may have had ‘a right in’ an area, ie. they could come there freely for ceremonies without this being considered an act of aggression.

343    In the same work, Hercus said of the Arabana and Wangkangurru:

People knew in meticulous detail who owned land: this is clear from all the comments made by traditional people on the subject.

344    In her work entitled “The Fire History” published in 1992 and co-authored with Vlad Potezny, Hercus recorded that Mick McLean, a part Wangkangurru and part LSA man who was born in 1888 in the Central Simpson Desert and who died in August 1977, “resented the fact that Antikarinja people had taken over much of LSA country and by the 1920s had come in considerable numbers into traditional Arabana country”. Hercus described him as having “outstanding traditional knowledge for most of the central north of South Australia” and that his main interests were the songs, stories and totemic geography of the Wangkangurru, Arabana and LSA People.

345    In her 1994 work entitled “A Grammar of the Arabana-Wangkangurru Language, Lake Eyre Basin, South Australia”, Hercus gave the following translation of statements from Mick McLean on 16 May 1969:

The (Northern) Arabana are right from Yardiya (Old Peake), and from Warrina. They went back to Oodnadatta, Uthapuka (Hookey's Waterhole) that was all one language along that creek (the southern side of the Macumba), Ipithanha, Mount Midlargunna. They went right up to Thurluwarangka, Mount Sarah and back to Paya-parrakanha and Wampityinha (a Rainbow Centre just south of Macumba station) and right down to Mundrupa and down along the Woodmurra Creek. They went to Mount Midlargunna, Thidnapakanha (Mount Tidnabakina), and Aripanha (Erebena waterhole), they went right up to Ilarlanha (just east of the Tidnabucca Waterhole) they followed the sandhills along to Kumparanha, and then to the Alkaowra flood flats.

(Emphasis in the original and footnoted omitted)

346    Mount Sarah, to which Mick McLean referred in this passage, is approximately 80 kms north of Oodnadatta. As Hercus noted, both TGH Strehlow and Tindale placed Mt Sarah in LSA country but she said that it had a ritual significance for Arabana people and that the name given for it by Mick McLean (Thurluwarangka) is an Arabana name.

347    In the same work, Hercus recorded a conversation she had had with Mick McLean and Tom Bagot (a LSA man) which included:

Hercus:    They had a special place for that?

McLean:    Midlaruku.

Hercus:    Mount Midlargunna. And Thidnapakanha (Mount Tidnabakina)?

McLean:    I suppose they were just living about … Only Thamunha (sacred site) for Wilyaru was Midlargunna, all on the north side … Irlalanha (water hole) is back from Kumparanha sand field. That’s Arabana country …

Hercus:    So the border between Arabana and Aranda goes from the Todmorden road across to Macumba?

McLean:    South of Macumba just a bit. Then Arabana run right across to that creek (the Macumba) then. There is Wangkatyaka along the Kallakoopah, the whole lot …

Bagot:    Arakapaninha (hill).

McLean:    That is all my country (i.e. Wangkangurru).

Hercus:    Where do Aranda come in there?

McLean:    You got to find Macumba Creek west side, we are east side altogether.

348    Hercus then referred to other information provided to her by her informants and concluded:

In this fashion we gradually pieced together an account of the full extent of Arabana­Wangkangurru territory. The resulting picture does not deviate much from what is shown of the northern areas on Strehlow's map. The main difference is that Strehlow, who got his information from Southern Aranda speakers, included in Aranda country places where Arabana people had rights, while I, getting my information from Arabana and Wangkangurru people, have tended to include in Arabana-Wangkangurru country places in which Aranda and other neighbours had rights. The only other difference is with regard to the north­western edges of Arabana country, where Strehlow has excluded the Coongra Creek.

349    As is apparent, TGH Strehlow and Hercus, working independently, came to remarkably similar conclusions as to the location of the boundary between the LSA and the Arabana.

350    Before leaving Hercus, I should record that Graham and Liebelt attempted something of a “rewrite” of Hercus’ opinion and map. They did so, first, by assuming that when in the conversation set out above, Mick McLean had said “… we are east side altogether”, he was referring to the Allowrie Flood Flats (north of Lake Eyre and well north-east of the Overlap Area and an acknowledged shared area) shown in the Hercus 1994 map; secondly, by plotting on that map the mythological sites to which Hercus had referred; thirdly, by inferring that the area within the lines so plotted had been the area intended by Mick McLean; and then reasoning further by saying that it was “a reasonable inference from [the] map that Lower Southern Arrernte country commences in the vicinity of Areebunna (sic) water hole on the mid-Macumba and extends west … and south (to include the Hookey’s Hole and other sites) and also including the Alkowara Flood Flats to the east as a shared country”.

351    In my view, this reasoning was highly speculative and, with respect to Graham and Liebelt, seemed to comprise an endeavour to make facts fit a predetermined thesis. Their reasoning is inconsistent with the conclusion repeatedly expressed by Hercus as to the extent of Arrernte and Arabana country, and I note that Graham and Liebelt made no attempt to reconcile their speculation with the conclusions of Hercus.

352    The same willingness to attempt a “rewriting” of the opinions of Hercus is evident in the following passage in the second report of Graham and Liebelt:

[85]    Had Hercus been able to hear restricted men’s knowledge regarding Hookey’s Hole, we believe she [would] have also recorded Arrernte associations to that site also … Given that Hookey’s Hole and Mount O’Halloran are in fact, within in a mere 10 km of one another (on either side of Oodnadatta), we have no doubt that Hercus [would] have agreed with us that Lower Southern Arrernte people have interests in the claim area and Oodnadatta, based on the evidence available.

(Emphasis added)

Paul Reader: 1981/82

353    Graham and Liebelt record that Paul Reader, who had been a Community Development Officer at Oodnadatta, had later been engaged by the Community to undertake a survey of Aboriginal heritage and sites across the wider region around the township. They included in their report a copy of Reader’s 1983 map of the “survey area” which I set out below:

26: Reader’s 1983 ‘survey area’ map

354    I would regard this map as non-conclusive for present purposes, although it could be regarded as consistent with Reader regarding the country of the Antakarinja and the Aranda as being north of the Alberga and the Macumba. As Reader’s report was not included in the tendered material, the Court does not have any accompanying text. In these circumstances, I do not consider that it would be appropriate to attach significant weight to Reader’s map.

355    Moreover, Sackett reported Reader as saying that “in the early 1950’s the Antakirinja (Yankunytjatjara) moved across to Anna Creek, and as a result of the mixing up of people inherited a section of Arabana heritage. This explained why I was able to talk with Antikiri people about the lands to the South”.

356    It is not clear what Reader meant by saying that the Antakarinja had “inherited a section of Arabana heritage”, but his reference to the Antakarinja having “moved across” is evidence of the easterly movement of Western Desert People into Arabana country, a matter to which I will return.

Daniel Vachon and Kym Doohan: 1986

357    In their 1986 anthropology report in connection with the claim to the Finke and Charlotte Waters Stock Reserves, Vachon and Doohan said:

Intermarriage, and resulting co-residence, between the Arapana and Southern Arrernte occurred “not infrequently” as early as the 1890s … The Wangkanguru of the Simpson Desert retreated to Lower Southern Arrernte permanent waters in times of drought by drawing upon ties of marriage and common sacred traditions … Our genealogical data shows that Arapana/Arrernte and Wangkanguru/Arrernte marriages occurred in the past, but not since and including the generation of the senior claimants. The obvious reason for the break-down in marital alliances between these groups is the depopulation of Arapana and Wangkanguru lands.

Unions between both subgroups of Southern Arrernte and Western Desert people have been recorded from around the turn of the Century.

358    Later, Vachon and Doohan commented again on the decline of “Arapana” population:

With the decline of Arapuna and Wankanguru traditions, the subsequent migration of these people to southern centres such as Port Augusta, and the influx Pitjantjatjara and Yankunytjatjara people from the west into the eastern pastoral zone, relationships between the Southern Arrernte and Luritja would have become all the stronger.

Isabel McBryde: 1987

359    Isabel McBryde is an archaeologist who in 1987 published a Chapter entitled “Goods From Another Country: Exchange Networks and the People of the Lake Eyre Basin”. She described Arabana speakers occupying the west side of Lake Eyre “from Oodnadatta in the north and Coober Pedy in the west to Coward Springs in the south”. McBryde included the following map:

Map 27: McBryde’s 1987 Lakes Map

360    However, as Graham and Liebelt pointed out, McBryde did not provide information as to her informants. Again, I am disinclined to attach much weight to it for present purposes.

Bruce Shaw and Jen Gibson: 1987

361    Bruce Shaw is an anthropologist and, in company with the historian Jen Gibson, carried out extensive work with Aboriginal people in the Oodnadatta area in the 1980s. They recorded a number of the dreaming narratives of the people in the region, describing them in “Invasion and Resistance” (1988) as the “religious repertoire of Arabana and other Lake Eyre people”:

The stories are always associated with some part of the natural environment. Where they are retold below [in their report] it is important to know that for the Oodnadatta region they come second hand having once been the religious repertoire of Arabana and other Lake Eyre peoples. They are remembered and told now by Antakarinja and southern Aranda residents who inherited them from the original owners. For example Tom Brady though he has strong Antakarinja background through his mother sang in the Aranda language, and the Wangkangurru and Aranda traditionally shared territory and religious knowledge. The Antakarinja and southern Aranda people of the Oodnadatta region hold these stories in trust. They are custodians for other people.

(Emphasis added and footnote omitted)

362    One year earlier, in 1987, Shaw and Gibson stated in “Aboriginal History of the Oodnadatta Region”:

Although the folk whose history is recorded here for the most part call themselves Aluritja, Aranda or Antakarinja, those who peopled the Oodnadatta region earlier were the Arabana. The Antakarinja represented Western Desert culture; the Arabana were Lake Eyre Basin people.

(Emphasis added)

363    Shaw and Gibson recorded in the same publication:

It is evident that the Arabana lived west of Lake Eyre at the time of early Aboriginal-European contact and that representatives of the Aranda from the north and the Antakarinja from the west migrated towards Oodnadatta after the turn of the [20th] century. There was also some Arabana migration to the township. The area close to Oodnadatta appears to have lain on the fringes of Arabana territory and to have been a cross roads where Western Desert and central Australian cultures met with those of the Lake Eyre Basin.

(Emphasis added)

364    In his book entitled “Our Heart is the Land: Aboriginal Reminiscences from the Western Lake Eyre Basin” published in 1995, Shaw said:

Oodnadatta is situated at what appears to have been the fringes of Arabana territory, a crossroads where Western Desert and Central Australian peoples met with those of the Lake Eyre Basin. The Arabana were living west of Lake Eyre at the time of first Aboriginal-European contact. Representatives of the Aranda from the north and Antakarinja from the west migrated towards Oodnadatta at the beginning of the century. The southern Aranda had strong associations with the Macumba station area, intermarrying and sharing ceremonial and trade networks with the Wangkangurru. Later there was intermarriage between some Antakarinja and Arabana, but it was more usual between Antakarinja and southern Aranda and between southern Aranda and Arabana. Oodnadatta itself was not the focus of traditional Arabana life. That was a little further south, centring (sic) on what is today Anna Creek station, and descendants of Arabana people live in Maree and Port Augusta. In general, Arabana country seems to have been part of the great north-south trade route along which were exchanged pigments (ochres), grinding stones and pituri. Descendants of the Antakarinja, southern Aranda and Arabana maintain strong intergroup links.

365    I agree with Sackett that it does appear from these works of Shaw and Gibson that knowledge of stories and places around Oodnadatta for which Arabana people formerly were responsible has in more recent times been taken on by the LSA and Antakarinja. At least in the 1980s, this arrangement was regarded as one of trusteeship or custodianship and not ownership.

Finke River Land Claim: 1989-1990

366    Graham and Liebelt referred to the report of Olney J on the Finke River Land Claim published in October 1990 concerning the area of the Southern Arrernte in which he said:

It is our conclusion that this estate encompassed land as far south as Macumba and Oodnadatta. Its northern extremity was Urlita (not located on the site map but probably in South Australia) and Pmer’ Ulperre …

367    However, the focus of Olney J was not on the southern boundary of the LSA and I do not think that any significant weight can be attached to this statement.

368    However, if regard is to be had to the report of Olney J, I agree with Gara that further references are also pertinent:

Boundary sites between the lands of the Lower Southern Arrernte, Wangkanguru and Arapana are not specifically recognized probably due to the fact that the latter two groups have not occupied their traditional lands for many decades. However, general areas, expressed in such phrases as “Oodnadatta way” or “Simpson Desert country”, are still seen to be predominantly Arapana or Wangkanguru lands.

Melissa Nursey-Bray: 2013

369    Graham and Liebelt also referred to an article published by Ms Nursey-Bray in 2013 which included a map of the “indicative distribution of Arabana country”.

370    This map did not show Arabana country extending to Oodnadatta. I am disinclined to attach much weight to this map bearing in mind its description as “indicative” only, which implies that it was not intended to be specific. Moreover, the map does not seem to correspond with the area which is the subject of the 2012 Arabana determination.

The reliability of the works of TGH Strehlow and Dr Hercus

371    It is convenient to refer at this point to the evidence in the trial which bears on the reliability of both the anthropological-ethnographic and linguistic aspects of the work of TGH Strehlow and Hercus. Their works are an important body of evidence which is inconsistent with the thesis of Graham and Liebelt. It is therefore understandable that they sought to diminish the value of the evidence. For example, Graham and Lucas said of Hercus:

[75]    While Hercus’ work is fascinating and impressive in its scope, we expect it would include a number of omissions, mis-recordings and mis-interpretations, as all ethnographic recordings do. We would not expect it to reflect the total mythological significance for the region.

372    And in respect of TGH Strehlow, Graham said that there was nothing in the material to show that his southern boundary of the LSA boundary was “based on anything but what he referred to as the scraps from his later work in … ‘66, ‘67”. Graham and Liebelt also said that TGH Strehlow’s work “was not based on any immersion at or near Oodnadatta for a considerable length of time” but included “short visits working primarily with one or two informants”. They speculated that, if TGH Strehlow had based himself at pastoral stations or Oodnadatta “for some time”, he would have encountered knowledgeable informants who may have provided him with different information.

373    The matters which indicate that the Court is justified in relying on the works of TGH Strehlow and Hercus include:

(a)    Strehlow and Hercus each undertook sustained research over a long period in the region and there were several attestations by the anthropologists as to the depth and value of their scholarship;

(b)    Strehlow and Hercus did not engage only in forms of tribal mapping but were concerned to understand the societies, the vocabularies, the Ularakas and Tjukurrpas and the ceremonies and their relationship with the land;

(c)    each of Strehlow and Hercus obtained information from informants whose memory did reach back to, or was informed by, the position at effective sovereignty. The value in doing so was confirmed by Cane who said that his experience had been that “traditional law and custom [had] existed in a fairly unadulterated form for at least a generation of the original contact group”. All the anthropologists agreed that there would not have been an immediate collapse of law and custom from 1870 onwards. It is likely to have been more gradual;

(d)    some indication of the range of persons who had knowledge and memory derived in the way just explained and from whom Hercus obtained information is seen in her “A Grammar of the Arabana-Wangkangurru Language” (1994) in which she names 10 informants, two whom were born in the 19th Century and seven in the first three decades of the 20th Century. A further indication is obtained from Appendix A to the report of Graham and Liebelt of 22 November 2019 which lists 23 informants of Hercus, all of whom appear to be persons of some seniority. One of these was Arthur McLean, born around 1898 who said, “I am an Arabana man … I know my own site, it is Hookey’s waterhole …”;

(e)    the Walka Wani submissions tended to disparage reliance of TGH Strehlow, saying that his opinions had been based on information from only one informant, Mick McLean. However, Mick McLean, who was also a principal informant of Hercus, had been born in 1888 so that it is reasonable to infer that his knowledge had been derived from persons who knew the position at or about the time of effective sovereignty. It is true that he was a Wangkangurru man but he was initiated as Arabana and was regarded as having good knowledge of Arabana law and culture. It is to be noted in any event that Mick McLean was not Strehlow’s sole informant in relation to the southern extent of LSA country. He also obtained information from Tom Bagot Inolja, a senior Lower Southern Arrernte man;

(f)    each of Strehlow and Hercus was rigorous in their methodology. In her work entitled “The Western Desert Boundaries with Aranda and Arabana”, Hercus gave the endorsement of the reliability of Strehlow’s work to which I referred earlier:

It was well known he was ultra-correct and conservative: he did not speak to, never mind elicit information from, any junior person, anyone whose knowledge was suspect or he thought might not have authority to speak … Because of this conservatism it is certain that he got much of his early information from people who grew up in the eighties of the last Century, and his later information (just as I did) from people who had constantly heard about the situation in the eighties from their seniors, and who had learnt songs and stories based on even older material. His map therefore on the whole appears to reflect the situation of the period of the eighties. It shows young Yankunytjatjara people having caused the Antakirinja to move further east with the boundary of the Aranda-Arabana vs Antakirinja being near Todmorden.

(g)    Strehlow’s confidence that he had information with which to delineate accurately the LSA boundaries is seen in the record he made in his 1971 field trip report:

My memory takes me back to those hard months of 1936 … when I took my unsuccessful journey from Hermannsburg to Macumba by camels in order to contact the last old LSA men of the Macumba region.

And so in the end all the Macumba men had died, [and] I had got nothing at all, from or about this southernmost part of the Aranda-speaking area.

Yet now, thirty one years after I had “missed” my “last” opportunity, Mick McLean has given me such an unexpectedly rich store of geographical names, of myths, [and] of verses from this very region, that I now know a very great deal about the mythology and totemic landscape of the whole country from Oodnadatta to Charlotte Waters. And I can delineate the southern boundaries of the Aranda-speaking area with confidence at last.

In his 1974 field trip report, Strehlow said:

These myths and songs go far to completing the sacred traditions of the LSA area, and are linked with neighbouring Arabana and Andekerinja traditions of ritual importance … with the aid of detailed maps previously held in my possession, a great deal of information was also gathered about the totemic geography of the area in which the above traditions have been placed, and my future maps of the LSA and adjacent tribal territories, will be greatly enriched by my 1970s Research trip.

(Emphasis added)

(h)    not only did TGH Strehlow and Hercus name their informants, they kept the field books in which they recorded what they had been told. This contrasts with several of the early sources on whom Graham and Liebelt relied;

(i)    the extent and rigor of Hercus’ methodology is evident in her substantial writings which were in evidence; and

(j)    Strehlow undertook field trips to LSA country in 1965, 1970 and 1971. The Arabana closing submissions suggesting that TGH Strehlow had not undertaken field work at Oodnadatta is inconsistent with the evidence and is seemingly based on incomplete understanding of part of Strehlow’s writings. As already noted, Graham and Liebelt accepted that TGH Strehlow had performed field work at Oodnadatta. Their criticism was of its sufficiency.

374    I note in passing that, despite their critique of TGH Strehlow and Hercus, Graham and Liebelt were prepared to give credence to the opinions of ethnographers and anthropologists whose contact with the Oodnadatta region was fleeting, whose informants are unnamed, and for whom there are no field books.

375    To my mind, it is significant that both TGH Strehlow and Hercus, acting independently, placed the boundary between the Arrernte and Arabana in the same vicinity. This cannot be attributed solely to the fact that Mick McLean was a principal informant of both. Hercus explained the position:

In this fashion we gradually pieced together an account of the full extent of Arabana-Wangkangurru territory. The resulting picture does not deviate much from what is shown of the northern areas of Strehlow’s map. The main difference is that Strehlow, who got his information from Southern Aranda speakers, included in Aranda country places where Arabana people had rights, while I, getting my information from Arabana and Wangkangurru people, have tended to include in Arabana-Wangkangurru country places in which Aranda and other neighbours had rights.

376    In my view, the works of TGH Stehlow and Hercus are reliable, and it is appropriate for the Court to place significant weight on them.

The utility of the early maps

377    A significant part of the evidence of the anthropologists and Mr Gara in the concurrent evidence was directed to the issue of whether the maps prepared near to the time of effective sovereignty were more definitive in their representation of the location of country.

378    In the joint report prepared following the conference of experts (the JER), Cane, Graham and Liebelt expressed the view that the early maps were more definitive than the later maps. In the evidence at trial, Graham and Liebelt maintained that position. Liebelt identified the early maps to which she and Graham were referring as those of Robert Hogarth (1884), Otto Siebert (1898), JG Reuther (1890s), Pastor Strehlow (1910) and, “to an extent”, RH Mathews (1900). Graham added the map of Fr Schmidt (1919) to that list. In effect, Graham and Liebelt preferred the maps of the early ethnographers or anthropologists which favoured the Walka Wani case over those which did not, particularly those of TGH Strehlow and Hercus.

379    None of Lucas, Sackett and Gara agreed that the identified maps were more definitive than the later maps. Cane said at trial that he had not looked at the maps. I understood that Cane had not regarded it as part of his role as an expert witness retained by the Walka Wani to do so.

380    For the reasons which follow, I conclude that the maps to which Graham and Liebelt referred cannot, considered objectively, be regarded as “more definitive” of the location of the country of the various peoples than the later maps. I preface my reasons for this conclusion by indicating my acceptance of the common sense proposition stated by Lucas that all maps are only as good as the data on which they are based and it is common experience that, as the data increases, the reliability of the maps on which they are drawn also increases.

Robert Hogarth

381    Hogarth provided Howitt with a handwritten map in 1884, probably under cover of his letter of 13 April 1884. This is Map 4 set out above.

382    As previously noted, that map placed the northern boundary of the Yandairunga (Arabana) country north of the Peake but south of Oodnadatta (which did not then exist). Given Hogarth’s familiarity with the area (he had at that stage been at Anna Creek Station for approximately 20 years) and his familiarity with the Arabana and their language and customs, this would on its face constitute evidence from a person well placed at the time to provide a considered assessment. However, given that Oodnadatta did not then exist, Hogarth could not have been directing his attention specifically to the location of the boundary in relation to Oodnadatta. It may also be pertinent that Hogarth did not include any indication of the boundary with reference to Hookey’s Hole. A third qualifying factor is that the Court was not provided with Hogarth’s description of what he intended to represent in the map.

383    However, those matters can be put aside because, as previously noted, only 16 months later Hogarth presented the paper (to two audiences) in which he said that the Yandairunga claimed as a hunting-ground all the country extending from Strangways Springs in the south to the Alberga Creek in the north. This is seemingly inconsistent with the depiction in the map.

384    A number of explanations are available for the inconsistency:

(i)    Hogarth was not purporting to indicate the full extent of Arabana country in the 1884 map;

(ii)    Hogarth was drawing a distinction between Arabana country, on the one hand, and Arabana hunting grounds, on the other;

(iii)    the 1885 description is more authoritative because it was part of a formal presentation by Hogarth to two public audiences, so that Hogarth was exercising particular care to be accurate; and

(iv)    Hogarth had obtained further information between his sending of the 1884 map and his preparation of the formal paper.

385    Counsel for the Walka Wani suggested that the record of the address of Hogarth to the two audiences was only a journalist’s report of Hogarth’s presentation, rather than his own paper, with the possibility for error by the journalist. I consider that implausible as, not only does the document describe itself as the paper read to the two audiences, it is in the nature of such a paper, rather than a journalist’s report.

386    The development of Hogarth’s information over time is indicated by reference to Howitt’s 1891 map (based on information provided by Hogarth and others) which located the Yandairunga people boundary only a little south of the Frew (Macumba River).

387    In my view, there is no reason to regard the 1884 map as more reliable than Hogarth’s 1885 description. In fact, there are three reasons to regard it as less reliable: the general presumption that a later work of an ethnographer can be regarded as more considered; in the 1885 paper, Hogarth was quite specific as to the location to the north to which Arabana country extended, i.e, Alberga Creek; and, even though lines of latitude and longitude were included on the 1884 map, it is plain that there were elements of approximation in the way the map is drawn.

Otto Siebert (1898)

388    The extract of the relevant portion of this map is Map 8 set out earlier in these reasons. Matters which favour the reliability of Siebert’s map are that he knew the purpose for which it was being prepared, i.e, to show “tribal boundaries”; that he took great care in its preparation; and that he had visited Oodnadatta before providing the map to Howitt.

389    However, there are matters which detract from its reliability. First, Siebert located Oodnadatta too far to the west from its true position (it is partly obscured on the map by the third X in the “XXX”). Although this was initially disputed by the Walka Wani, it later became an agreed fact. That by itself indicates some approximation in Siebert’s markings. Graham agreed with Gara that Siebert had drawn the location of Oodnadatta inappropriately and said that the map had “geographical inaccuracies all over it”; that it cannot be taken “as being gospel as geographic accuracy”; and that all it really indicated was that Oodnadatta was somewhere near the boundary between Arabana and Lower Southern Arrernte country. Graham (but not Liebelt) also agreed that Siebert should have shown the western boundary of the Arabana further to the west than he did.

390    The combined effect of these two errors is that it is possible that, on Siebert’s own map, Oodnadatta should be located within Arabana country. Even if that not be correct, these matters undermine confidence in any view that the Siebert map be regarded as definitive.

JG Reuther (1890s)

391    I will refer to Reuther’s map (Map 25) in my discussion of the linguistic evidence. For the reasons I there state, there are reasons to be cautious about placing reliance on Reuther’s map, including that he was linguistically “untrained” and Stockigt’s disparagement of the quality of his analysis of the Wangkangararru language.

392    To these reasons can be added other matters. The first is that there is no evidence of Reuther ever having come to the Oodnadatta region. The second, related to the first, is that the focus of Reuther’s interest was on the Dieri people, who are located east of Lake Eyre (although one may accept that it was not his sole focus). A third matter is that it is evident that Reuther derived his map and its details almost completely from Siebert’s map (or an earlier version of that map). A simple comparison of the two maps indicates that that is so. Whether this was with, or without, Siebert’s authority, and whether it occurred before Siebert sent his map to Howitt, is immaterial for present purposes.

393    It is accordingly not easy to understand how Reuther’s map can reasonably be regarded, any more than Siebert’s map, as more definitive of the locations of the Arrernte and the Arabana.

Carl Strehlow (1910)

394    Pastor Strehlow’s map is Map 14 set out above.

395    As I noted earlier, the information on which Pastor Strehlow relied is unclear. Graham and Liebelt thought that he had acquired a good understanding of group distributions while at Killalpaninna but TGH Strehlow thought that his father’s informants had been Arrernte men from north and west of Arrernte country. Their detailed knowledge of the boundaries of LSA country some 500 kms away must have been limited.

396    Even if Pastor Strehlow had relied on information obtained when he was at Killalpaninna, the opportunities for him to have then obtained detailed information about boundaries in the Oodnadatta region must also have been limited. He was at Killalpaninna for only 17 months before moving to Hermannsburg. In that 17 months, he learnt Dieri and undertook and completed the major task of translating the New Testament into the Dieri language. This, together with his other work, must have limited his opportunities for obtaining details regarding the boundaries of the country of the “Aranda Tanka”.

397    Even if those issues are put to one side, there are other matters affecting the reliability of Pastor Strehlow’s map:

(i)    there is no evidence that the LSA called themselves Aranda Tanka (which allows for the possibility that the name is one applied to them from further north);

(ii)    the boundaries of the Aranda Tanka are shown by straight lines, and it was common ground that the boundaries between country of Aboriginal peoples are not of that kind;

(iii)    Pastor Strehlow did not draw the map himself. Instead, it was drawn by others using information from Pastor Strehlow, Siebert, WE Roth, Howitt and Spencer and Gillen. Graham and Liebelt did not even refer to this important information concerning the manner in which Pastor Strehlow’s map was drawn;

(iv)    Pastor Strehlow had not in his writings defined exactly the territory of (relevantly) the eastern and southern Arrernte; and

(v)    Graham acknowledged that Pastor Strehlow’s map had, insofar as it purported to show the countries of other peoples, gone beyond the area of his expertise.

398    All these matters raise real issues about the reliability of Pastor Strehlow’s map and its ability to be definitive of the boundary between the LSA, on the one hand, and the Arabana, on the other.

RH Mathews (1900)

399    Mathews’ map is Map 13 set out above.

400    Graham and Liebelt regarded Mathews’ map as more definitive “to an extent”. The basis of their qualification was not made clear.

401    As is apparent from the map, Mathews showed Oodnadatta within Arabana country. I have previously noted that Mathews was a surveyor, was well regarded, and that he made use of information provided by more than one informant.

402    Moreover, the later works of Mathews consistently indicate that it is the Alberga/Macumba which is the boundary between the LSA, on the one hand, and the Arabana, on the other. There is no reason not to regard Mathews’ 1900 map as reliable for its time as a depiction of the approximate country of the Arabana and the Andijarina.

Schmidt (1919)

403    The map of Father Schmidt is Map 15 set out above. It is to be noted that Graham and Liebelt are now relying on a map published 45-46 years after effective sovereignty.

404    For the reasons given earlier, Father Schmidt’s map cannot reasonably be regarded as definitive (or more definitive) of the boundary between the Arabana and the LSA. It is instead in the nature of a broad brush indication of the distribution of the Aranda language in the entire Australian continent. It does not purport to descend to the detail of the boundary of two Aboriginal peoples. Graham’s observation that any high school student could, with the same data, have drawn the map tends to belie the significance which he and Liebelt sought to attach to it.

Other matters

405    Graham and Liebelt passed over other early maps set out earlier in these reasons (which, I note, were generally inconsistent with the Walka Wani case). These included the maps of Howitt and Spencer and Gillen.

406    The maps of Tindale in the 20th Century are generally inconsistent with the Walka Wani case. Elkin’s maps do, however, provide some support for the thesis of Graham and Liebelt.

407    It is not necessary to repeat the matters set out above which support the reliability of the maps drawn by TGH Strehlow and Hercus. The closeness of their depictions of the boundary seem more than coincidence. Each had undertaken considerable field work in order to obtain the data on which the maps were based. Each had been astute to speak to the old people who had memories stretching back to the early 20th Century and who had themselves been informed by people who were alive at the time of effective sovereignty. The position they were in may not have been quite as good as it would have been had they been able to speak to persons at the time of effective sovereignty but it would be odd for their maps to be regarded as less definitive than those prepared by persons who did not ever go to the region themselves or whose research was much more limited.

408    Of course, it is not only the maps but the written descriptions which were given of the extent of country which are important. There are some which support the Walka Wani, and some which may be regarded as inconclusive. But overwhelmingly, the maps and the written descriptions of the extent of country are not consistent with the Overlap Area having been the country of the Antakarinja or the LSA.

Conclusion on the ethnographic-historical material

409    Graham and Liebelt concluded from their review of the ethnographic material that the evidence shows that, in the majority of cases:

(1)    Lower Southern Arrernte people were associated with the Oodnadatta –Macumba area north to Moorilperinna Waterhole and other sites straddling the Northern Territory – South Australian border;

(2)    Western Desert speaking people variously described as Yankunytjatjara, Antakirinya or sometimes Luritja were associated with an area to the immediate west of but also on some maps including Oodnadatta;

(3)    A close social relationship exists and can be inferred from the record to have long existed, between Arrernte and Yankunytjatjara people to the extent that they consider themselves as living under one joint ‘Law’. This includes a shared form of communication, kinship, ceremonial life, mythology and shared responsibility for sites.

(4)    Arabana people were considered as being associated with the immediate area south of Oodnadatta and down in vicinity of western Lake Eyre past Peake and Anna Creek.

(Citation omitted)

410    In my view, and contrary to the opinion of Graham and Liebelt, the ethnographical-historical evidence overwhelmingly supports the conclusion that the Overlap Area was Arabana country at the time of effective sovereignty. That is also the opinion of the ethnographic-historical material taken by Lucas, Sackett and Gara.

411    The sources on which Graham and Liebelt and the Walka Wani relied do not provide a credible case to the contrary. For the most part, the Walka Wani relied on persons who had not even been to the region (for example, Woods and probably Helling), or whose presence had been only transient (Herman Kempe, Gillen and Warburton (if confined to the 1886 publication), East and Lady Tennyson).

412    The evidence of those who spent sustained periods in the region and who were familiar with the Arabana and the Arrernte or both, generally support the view that the Overlap Area was within Arabana country. In this group, I include Giles, Robert Hogarth (his later publication), Byrne (with qualification), Stirling, Spencer and Gillen, Tom Hogarth, the Berndts, TGH Strehlow, Hercus and Shaw and Gibson. There are those who did not themselves go to the region but who did obtain information from a range of informants from within the region. These include Howitt (although his papers are less definitive) and RH Mathews.

413    There are some who provide support for the Arrernte position (Siebert, Pastor Strehlow, Elkin and Dr Basedow) but the analyses of the works of Siebert, Pastor Strehlow and Dr Basedow in particular indicate reason to doubt the reliability of their depictions of the position at effective sovereignty. It is not entirely clear that Elkin was intending to indicate the position at the time of effective sovereignty. Even if he was, his conclusions are, as Sackett noted, “too minimalised and inconsistent” to indicate reliably the boundaries and they are in any event outweighed by the significant evidence to the contrary.

414    I conclude that the ethnographic-historical evidence supports strongly the Arabana claim as to the position at effective sovereignty and is inconsistent with that advanced by the Walka Wani. However, the identification of whose country the Overlap Area was in at effective sovereignty, i.e, who “owned” it, is not conclusive of the question of whether the Walka Wani also had NTRI in it.

The linguistic evidence

415    Arabana is a Karnic language; Lower Arrernte is an Arandic language; and Antakarinja is a Western Desert dialect. Each is a Pama-Nyungan Aboriginal language, described by Stockigt as the “large over-arching family of languages … [covering] 90% of the Australian continent and comprises some 290 languages”.

416    As previously noted, the Court received linguistic evidence from two experts: Stockigt called by the Arabana and Black called by the Walka Wani. Stockigt has undoubted expertise in the specialised field of linguistics and, in particular, with Pama-Nyungan languages. Her PhD thesis, which compared 19th Century and early 20th Century grammatical descriptions of all Pama-Nyungan languages, was awarded a 2017 University of Adelaide Doctoral Research Medal and the 2018 University of Adelaide Post-Graduate Alumni Medal. In 2018, through the University of Newcastle, Stockigt conducted linguistic fieldwork in Alice Springs with Sydney Strangways, one of the Arabana witnesses.

417    Black is also well qualified having been engaged in the study of linguistics since 1964. He was awarded a PhD by Yale University in 1975. Black moved to Australia in 1974 and, between 1990 and 2015, was Senior Lecturer in Applied Linguistics at Charles Darwin University. Before that, Black had held other tertiary or research positions in linguistics. Although well qualified as a linguist, it was not clear that Black has the same specialised knowledge of Arabana and Arrernte as does Stockigt. As he himself acknowledged, his main linguistic work in Australia had been on Cape York Peninsula.

418    The evidence of Stockigt and Black was directed to the extent to which place names and vocabularies recorded in and around the Overlap Area at or shortly after effective sovereignty were Arabana, Southern Arrernte or Western Desert in origin. The linguistic evidence, in particular the evidence as to the origin of place names, does not of itself indicate whether there existed the requisite connection with land in accordance with traditional law and custom but it can assist in identifying the language to which a country belongs and therefore in answering the enquiry as to connection.

419    Stockigt provided a report dated 19 March 2019 in which she addressed two principal questions, being the location of Arandic, Karnic and Western Desert languages, in around the Overlap Area at sovereignty and the language belonging to the Overlap Area at sovereignty.

420    Black provided a report dated 30 July 2019 in response to a request that he address two matters:

(i)    consideration and analysis of Stockigt’s report of 19 March 2019; and

(ii)    the linguistic data provided by SANTS and any other data which may provide evidence of a correlation between the Aboriginal language words recorded by ethnographers or linguists in and around the Overlap Claim and the likely Aboriginal people who lived in and around Oodnadatta.

421    However, for the most part, Black’s report of 30 July 2019 comprised a review and critique of Stockigt’s report (a matter confirmed by the sub-title he gave to the report).

422    Stockigt provided a report on 26 September 2019 which was responsive to Black’s report of 30 July 2019.

423    Pursuant to the Court’s order, Stockigt and Black conferred on 14 and 15 October 2019 with a view to identifying the matters on which they agreed, with or without qualification, and those on which they disagreed. They provided a joint report arising from that conference on 16 October 2019.

424    On 16 July 2020, Black provided a further report entitled “Addendum to the Joint Linguistic Report” and, on 9 October 2020, Stockigt provided a report with the title “Responses to Black’s Addendum to ‘Joint Expert Linguistic Report’”.

425    Stockigt and Black gave evidence concurrently on 19 and 20 October 2020. There was understandably some development in the opinions of each over time as they responded to the critique or new material provided by the other or by the parties themselves.

426    While I considered both Stockigt and Black to be impressive witnesses, I have more confidence in the opinions of Stockigt. Her opinions seemed to be well researched, well-reasoned and her evidence revealed a deep knowledge of the subject matter, greater than that of Black. Amongst other things, she had delved more deeply into source materials. Black showed the valuable ability to consider alternative explanations for many of the matters on which Stockigt relied. In some instances, these seemed to be more in the nature of theoretic logical possibilities rather than realistic alternatives but I regarded them as a good check against a too ready acceptance of Stockigt’s opinions. There were also particular matters in Black’s evidence which undermined my confidence in the reliability of his evidence. I will refer to particular aspects in the following reasons.

427    To a significant extent, the issues about which Stockigt and Black provided opinions required their identification and assessment of matters which are in the nature of circumstantial evidence. Earlier, I referred to the way in which the Court proceeds when considering whether matters which are the subject of circumstantial evidence have been established. Each item of evidence although insufficient by itself to warrant a conclusion, may, when considered with other pieces of evidence, be sufficiently probative to discharge the onus of proof. An item of evidence is not discarded because it is not sufficient by itself to warrant the ultimate conclusion. It is to be used together with all the other evidence which the Court accepts. I had the impression more than once in Black’s evidence that he tended to disregard an item of evidence simply because it did not, by itself, lead necessarily to the conclusion advanced by Stockigt. It is the combined effect of the matters to which Stockigt referred, supported in many instances by other evidence in the trial, which I have found persuasive.

Overview

428    One consequence of the way in which the reports were prepared, in particular, Black’s report being in the nature of a critical review of Stockigt’s first report, is that the first Stockigt report provides a convenient framework by which to assess the respective opinions.

429    Stockigt commenced by noting that different languages can share features by diffusion across linguistic boundaries and continued:

[22]    That three different types of languages converge close to the claim area at Oodnadatta was recognised by the Austrian philologist W. Schmidt (1919), who made the earliest attempt to systematically classify Australian languages. Early anthropologists/ethnographers took account of linguistic information when demarcating Aboriginal people into tribal/linguistic entities on maps. All researchers have agreed that Arrernte belonged to country to north of Oodnadatta, that Western Desert language belonged to country reaching far to the west of Oodnadatta, and that Arabana belonged to country to the east and south of Oodnadatta, the exact location of the boundary between these three linguistic/cultural entities has been differently represented by different researchers, as summarised by Lucas (2018: 8-10).

[23]    Lines that are drawn on maps demarcating boundaries between one language and another are, however, in most cases an inaccurate representation, and in my view, this is especially true in the region surrounding the claim area. When considering the nature of boundaries in the region Hercus stresses that:

Arabana-Wangkangurru people did not think in terms of boundaries: there is in fact no such word in the language. They were however certainly conscious of a series of places where their territory ‘cut out’ and somebody else’s began. (Hercus 1994: 15)

Hercus goes on to explain that ‘the situation in (sic) particularly intricate in the Lake region, which has such complex social and cultural links’.

430    Stockigt identified vocabularies and word lists compiled by the early white explorers, ethnographers and anthropologists. She said that “the early records of Arabana that are available in mapped place-names, manuscripts, and in publications provide a solid database from which the association between language and country can reasonably be deduced”. Black did not disagree with that proposition and indeed expressed a preference for the early records over the works of TGH Strehlow and Hercus.

431    As her source material for place names, Stockigt relied on Pastoral Run Sheets for the period 1893-1910, the 1971 map of TGH Strehlow and on the Ularaka histories published by Hercus. She referred to these as names which were mythologically embedded in the landscape. Although Strehlow and Hercus had published their material well after the time of effective sovereignty, Stockigt regarded it as appropriate to rely on that material as the information they had obtained had “reached back to at least the earliest years of the 20th Century and [had been] informed by intact understandings of Classical societies in the region”, in particular, the informants Mick McLean and Maudie Naylon.

432    Stockigt also reviewed the word lists or vocabularies from seven sources prepared in the period 1875-1903. These comprised words recorded by FW Andrews (1875), F Gillen (1875), Taplin (1879) (which included vocabularies recorded by Trooper Born), Curr (1886) and Spencer (1903). She concluded that the language “overwhelmingly recorded” to the south east of the claim area, and within the area of the 2012 Arabana Determination, was Arabana. Stockigt also concluded that the language “overwhelmingly recorded’ to the north of the Overlap Area and north of the Macumba River was Arandic and (in her first report) that there was no evidence of any Western Desert language in any of the earliest lexical records for the vicinity of the Overlap Area. While there were some Arrernte words in word lists which were otherwise Arabana, and vice versa, Stockigt surmised that these resulted from the post-colonial movement of individual Arrernte and Arabana people.

433    Stockigt’s analysis of the place names in the early sources led her to conclude:

(i)    the vast majority of place names in the Arabana language in the vicinity of the Overlap Area are located in the area of the 2012 Arabana Determination;

(ii)    the vast majority of place names in the Arrernte language are located in country north of the Macumba River;

(iii)    there are no place names in the Western Desert language at all in in the vicinity of the Overlap Area; and

(iv)    both the Arabana and the Arrernte were associated with the region close to the Macumba River.

434    Stockigt also examined the language in the Arabana Ularakas, noting that the language in which an Ularaka is told or sung frequently changes to reflect the language associated with the country through which the ancestor travels. Her examination of the Ularakas tended to confirm the results derived from her examination of the place names.

435    Stockigt said that she had concluded “beyond reasonable doubt” that at effective sovereignty:

(i)    Arabana language belonged to country to the south of the Macumba River, including the Overlap Area and that other Karnic languages were spoken to the east of Arabana;

(ii)    Lower Arrernte language belonged to country north of the Macumba River; and

(iii)    Western Desert language belonged to country well to the west of the Overlap Area and to the area of the 2012 Arabana Determination.

436    Stockigt also concluded that linguistic features had been shared over a Lower Arrernte and Arabana “boundary” over a sustained period of time, at least some centuries prior to sovereignty. She concluded that the boundary comprised a “transitional zone”, or a “liminal linguistic and geo-mythological zone”, in which the Lower Arrernte and the Arabana owned country, with the northern boundary of the zone being well within Lower Arrernte country and the Overlap Area being at its most southern edge. Stockigt noted in particular that there is no evidence of Arandic presence south of Oodnadatta.

437    Stockigt said that she had then formed the opinion “on the balance of probability” that the language belonging to Oodnadatta and the Overlap Area was Arabana, and indicated that she had relied in particular on Gillen’s 1875 record of the Arabana term Kadni recorded at Angle Pole, the high frequency of place-names ending the suffix – nha to the north of Oodnadatta and the works of TGH Strehlow (1971) and Hercus (1994), both of which were based on information provided by Arrernte and Arabana people whose memory, or sources of understanding, reached back to effective sovereignty.

438    While repeating the caution sounded by Hercus to the effect that lines drawn on maps to demarcate boundaries between one language and another are often inaccurate, Stockigt concluded that:

(a)    the line demarcating the Western Desert linguistic/cultural bloc has been consistently depicted as running in a roughly north-south direction and to the west of the Overlap Area; and

(b)    although the demarcation is less clear in the case of the Southern Arrernte language, the majority of the material has the demarcation following the course of the Macumba River from the junction of the Alberga and Stevenson Rivers to a point of little upstream from its point of entry into Lake Eyre. I agree with Stockigt on this point.

Matters of agreement

439    Both Stockigt and Black recognised the distinction between the locations at which a language is spoken and the country to which a language intrinsically belongs and the distinction between a speaker of a language and an owner of a language. They accepted that these principles (described by Stockigt as “near Pan-Aboriginal Australian principles”) applied in relation to the Overlap Area.

440    Stockigt also said, and I did not understand Black to contest, that there may be sound reasons why places may be named in a language other than that belonging to the location, including shared mythology between different language groups and the travels of ancestors through country other than their own.

441    Stockigt and Black agreed on a number of matters of overall approach, although in some instances with qualifications. The matters upon which they agreed included:

(a)    the early maps and anthropological materials provide evidence from which it is possible to infer the likelihood of language belonging to country around the Overlap Area near the time of effective sovereignty. Stockigt added the qualification that, of these two sources, she had been referring particularly to the maps. Black added the qualification that, while it is possible to suggest etymologies, there is often no basis for confirming them, and noted that some suffixes are common to both Arabana and Arrernte and possibly other languages. Black also said that, even when one can be confident that the Arabana suffix “-nha” is used on a name, it means only that the name is being cited in an Arabana context, and not that the name is itself an Arabana name. Although Black gave one example of this (and another in which he thought it had been confirmed), his conclusion that this was the only meaning to be derived seemed to constitute a form of inappropriate reasoning from the particular to the general. Stockigt noted that, in addition to the mythological associations in place names, those names were part of the means by which the people navigated their way around the country;

(b)    the linguistic and geo-mythological materials gathered by Hercus since the 1960s provide valuable evidence from which to infer the likelihood of language belonging to country in/or around the Overlap Area near the time of effective sovereignty. Black, however, said that he also looked for the etymologies of place names and added other qualifications to his agreement to which I will return;

(c)    early word lists and related linguistic data do provide analysable evidence of the language belonging to the country around the Overlap Area near the time of sovereignty but the linguistic data from within the Overlap Area which may be used for this purpose is limited; and

(d)    the language of traditional songs in this area is not reliably diagnostic of the language belonging to the country to which the songs relate. It is rather an indication of ceremonial connection. I do, however, take into account Black’s point that the use of Antakarinja along with Arabana and Arrernte in the Emu, Kangaroo and Western Fire histories of Hercus may suggest some interaction between the Arabana and Antakarinja people in the wider region.

Matters concerning the location of Western Desert language (e.g, Antakarinja and Yankunytjatjara)

442    The closest Western Desert place name in evidence in the vicinity of the Overlap Area upon which Stockigt and Black agreed is Punyuru, some 160 kms southwest of Oodnadatta. Two other names were mentioned in the oral evidence, Thiwa and Intinti but these locations were north or north-west of the claim area and were not regarded by either Stockigt or Black as relevant.

443    Stockigt and Black also agreed that there is no convincing evidence of Western Desert language around the Overlap Area in the vocabularies collected during the first half Century after sovereignty. That may be so but it is necessary to keep in mind that the Yankunytjatjara/Antakarinja have been recognised in the 2006 Yankunytjatjara/Antakarinja Determination as native title holders for the area immediately to the west and north of the Overlap Area.

444    Black pointed out that the absence of Western Desert vocabularies may simply be because they had not been collected within the Overlap Area or in the area immediately to its west. This was an aspect of a point which Black made more generally, i.e, that the absence of evidence may reflect limitations in the available evidence rather than indicating anything about the circumstances of the Indigenous people within the Overlap Area at the time. That is to say, an absence of evidence is not equivalent to evidence of absence. The prospect that this is so cannot be excluded altogether.

445    I note, however, that Black did not maintain his critique of Stockigt’s report based on 15 “Andijiringna” words which he said had been collected at Warrina in 1891 by Richard Helms on the Elder expedition (and published in 1895). At one stage Black had also considered it appropriate to have regard to early data collected in the Everard Ranges. It is understandable that Black did not press reliance on these matters given that the Everard Ranges are approximately 300 kms west of the Overlap Area and the use of Antakarinja names in that area could not reasonably be regarded as relevant to the Overlap Area. With respect to the vocabulary compiled by Helms, Stockigt noted that Black had identified only 15 words in the four pages of vocabulary which Helms had compiled, of which 107 were ‘Wangarabunna’ and 83 were ‘Dieri’. Moreover, Stockigt identified that some of the 15 words which Black regarded as “Andijiringna” were “irrefutably” Karnic and not Western Desert. )

446    I consider that there is considerable force in Stockigt’s opinion:

If Western Desert language had been spoken at [the] Charlotte Waters Telegraph Station or at the Macumba Homestead or at the Peake Telegraph Station or at any of those other centres of European settlement where people like Taplin and Curr posted their survey … there was ample opportunity for it to be recorded. The absence of Western Desert vocabulary is indicative to my mind of the absence of Western Desert language in those regions.

447    Stockigt considered that the name Uthapuka (Hookey’s Hole) was the only “solid and widely attested” evidence of an Arabana place name in the Overlap Area. In the joint report following his conference with Stockigt, Black advanced a possible Western Desert etymology for the name Uthapuka, based on the word puka being a Kokatha (Western Desert) word. However, in his report of 16 July 2020, Black accepted that the word puka had been mistakenly attributed to the Kokatha when it was in fact a word of the Wirangu people.

448    While abandoning reliance of the usage of the word puka by reason of the mistaken attribution of the word to the Kokatha, Black maintained that Uthapuka could nevertheless be understood as having Western Desert etymology. His reasoning was that the name Uthapuka lacks the distinctive Arabana place name suffix – nha and that TGH Strehlow had transcribed the name as Utjiaboka (shown here without the diacritics) in a mud map of Oodnadatta and its immediate surrounds. He noted that tj is found in Western Desert languages whereas th does not seem to be. Stockigt discounted Black’s reliance on the tj on the basis that it was a probable Western Desert pronunciation of the Arabana name and because the linguistic analysis of Hercus in 1994 indicated that Strehlow’s record of Utjiaboka could be either a modern-day Arabana variant of Uthapuka or that it could represent an older Arabana form of the place name.

449    I consider the list of place names along Neales River recorded by TGH Strehlow in 1967 to be particularly pertinent in resolving this difference of opinions. Strehlow described all the names as Arabana. Stockigt said that she understood Strehlow to be indicating the country to which the place belonged, rather than its language. Although the 1967 publication of Strehlow was not tendered in evidence, this evidence of Stockigt was not challenged so that I am prepared to attach weight to it. To my mind, this is a significant matter as it indicates that Strehlow did not regard himself as recording a Western Desert name for one of prominent features on the Neales River. I agree with Stockigt that Black’s hypothesis to the contrary with respect to the name Uthapuka is speculative only.

450    The Walka Wani drew attention to the fact that TGH Strehlow had also given an Arrernte name for Hookey’s Hole, namely, Arakana Pmara Kngoritja. Strehlow indicated that it meant “the main place”. That entry followed his entry of the name Uthapuka. Stockigt thought that it meant “frog’s camp”. I note that the Walka Wani witness Jeffrey Doolan also referred to Ankerr-Nyent, a water soak north of Oodnadatta as the “main place”.

451    Black also suggested that the name Pitjamulkamulka which Strehlow had entered in his notebook for a location between the Oodnadatta Dam and Hookey’s Hole may have a Lower Arrernte or more distant Western Desert derivation. As Stockigt noted, while Black had searched for Arrernte or Western Desert etymologies for this name, he had not made an equivalent search for Arabana etymons. Stockigt herself advanced such etymons and concluded that “Pitjamulkamulka seems highly likely to be Arabana”. Black said that he trusted “very much” Stockigt’s judgment about this etymology. In any event, the fact that Strehlow himself had said that all the names on Neales River were Arabana, counts against the accuracy of Black’s surmise.

452    Black also critiqued Stockigt’s statement that the line demarcating the Western Desert linguistic/cultural bloc had been consistently depicted as running roughly north/south and to the west of Oodnadatta. He drew attention to a map (Map 25 below) drawn by Reuther in the 1890s which suggests that the area of the ‘Andagirinje’ (Antikirinya) could have extended east past Oodnadatta to reach as far as ‘Wonkanguru’ (Wangkangurru) country.

Map 25: Reuther’s 1989 Map of language distribution in the Oodnadatta area

453    Reuther was a German missionary at Killalpaninna, east of Lake Eyre. Black noted that Hercus had described Reuther as having written the “first reasonably comprehensive grammatical study” of Wangkangurru and suggested therefore that he “might have had especially good knowledge of [Wangkangurru] location and neighbours”.

454    Stockigt accepted that Hercus had described Reuther’s work published in 1899 as the “first reasonably comprehensive study” of Wangkangurru. She pointed out, however, that, contrary to the belief of Hercus, Reuther’s work had not been the first grammatical study of Wangkangurru because his Lutheran predecessor at Killalpaninna, J Flierl, had in 1880 produced a Wangkangurru grammar. Stockigt said moreover that she had worked extensively on Flierl’s material, having “transcribed, translated and studied” it and, further, that she had compared it with Reuther’s and “all other early grammatical material of Pama-Nyungan languages”. On the basis of this study, she had concluded that Reuther “did not have a nuanced understanding of Wangkangurru language”. Stockigt also noted that Johannes Deinzer, who had provided the missionary training to Reuther, had described him as linguistically “untrained”. This circumstance, together with the sparseness and quality of Reuther’s Wangkangurru analysis, made it doubtful in her view that Reuther could be regarded as having had “especially good knowledge” of the location and neighbours of the Wangkangurru. This evidence of Stockigt was not challenged, and I accept it.

455    Stockigt accepted, however, that the existence of Reuther’s map meant that she should have said that the Western Desert boundary is “fairly consistently” drawn west of Oodnadatta. With that qualification, I accept Stockigt’s evidence on this point as it is consistent with all the other evidence.

456    It is appropriate to record that, before providing her report, Stockigt had taken the precaution of having a professional linguist who speaks Yankunytjatjara check the place names for which she had been unable to determine a language.

457    In short, the linguistic evidence does not support a view that there were Western Desert place names in the Overlap Area at effective sovereignty, let alone that it was the language belonging to the Overlap Area at that time.

Matters relating to the location of LSA language

458    On this topic, Stockigt and Black agreed on the following:

(a)    there is at least one Arrernte place name in the Overlap Area, namely, Arrkwetye Akapwerte (Mt O’Halloran) which is Southern Arrernte, but disagreed as to whether there may be more. I will return shortly to the origins of the name “Oodnadatta”;

(b)    there is limited evidence of Arrernte place names between the Overlap Area and the Macumba and Alberga Rivers. Stockigt identified Apmarl-Akert close to New Macumba as being the only Arrernte name in this area. Black agreed, although he had earlier noted that the Arabana place name Wilparanha had been attested to having a similar Arrernte name in 1901;

(c)    there is strong evidence of Arrernte place names along and north of the Macumba River;

(d)    early vocabularies suggest that Arrernte was spoken north of the Macumba River and at the Charlotte Waters Telegraph Station; and

(e)    early vocabularies suggest that some Arrernte speakers may have been at the Peake Telegraph Station (south east of the Overlap Area) in the four decades after effective sovereignty. Black gave examples that this was so. Stockigt accepted that some early ethnographers had recorded Arrernte being spoken as far south as the Peake. However, she considered that the presence of Arrernte speakers at the Peake Telegraph Station was unsurprising given inter-marriage between the Lower Arrernte and the Arabana and because of the post-sovereignty movement of people along the telegraph line.

Matters relating to the location of the Arabana language

459    Stockigt and Black agreed on the following:

(a)    there is evidence of Arabana place names to the south of the Overlap Area and within the area of the 2012 Arabana Determination;

(b)    there is evidence of Arabana place names between the Overlap Area and the Macumba and Alberga Rivers to the north. Black thought that there was only one clear case (Wilparanha) but Stockigt referred in addition to Wampityi and Midlargunna;

(c)    the relative frequency of Arabana place names compared with Arrernte place names decreases north of the Macumba River. Stockigt thought that the most northern Arabana place name, Thurluwarangka (Mount Sarah) (north of the Alberga River and some 65 kms north of the Overlap Area) suggests that the Arabana had a mythological connection to that site through the travels of Thunpila Ularaka; and

(d)    early vocabularies suggest that Arabana was spoken at the Peake Telegraph Station, south of the Overlap Area near the time of effective sovereignty.

Disagreement about matters of approach

460    Stockigt considered the relative absence of name places within the Overlap Area at sovereignty to be unsurprising as she thought that, apart from notable features such as water holes or mountain peaks, there would have been little motivation for naming places in the Overlap Area until it became significant post-effective sovereignty by reason of immigrant Aboriginal people spending longer periods of time in the area. Black considered this to be mere speculation, noting that the mere fact that the Overlap Area had attracted relatively little European interest before Oodnadatta was established as a town in 1890 need not mean that the area had not been of interest to Indigenous Australians before then. That cannot be excluded as a logical possibility but Stockigt’s surmise does, to my mind, explain more plausibly the absence of Aboriginal names for sites within the (relatively small) Overlap Area.

461    As noted earlier, Black added qualifications to his agreement that the material gathered by Hercus provided valuable evidence from which to infer the likelihood of language belonging to country in/or around the Overlap Area near the time of effective sovereignty. He considered first that the dreaming narratives from which Stockigt had extracted the evidence of place names usually related to Arabana and/or Wangkangurru stories (even if also shared by other peoples) and therefore may have tended to favour names which can be identified with the Arabana and/or Wangkangurru.

462    I indicate now that I do not regard this qualification as significant because I accept Stockigt’s evidence that the dreaming narratives from which she extracted the place name evidence were chosen because they are the narratives which pass through or near to the Overlap Area. That is to say, I accept that Stockigt had not proceeded in a biased way by selecting or giving preference to Arabana and/or Wangkangurru stories. I will return shortly to further matters concerning the thoroughness with which Hercus had undertaken her field work.

463    Black’s second qualification was that the Hercus materials cannot be guaranteed to provide reliable evidence of place names for times earlier than the early decades of the 20th Century unless those names were also found on the early maps. He had also been critical of Stockigt’s reliance on the 1971 map of TGH Strehlow and on the Ularaka histories recorded by Hercus.

464    Black’s second point is sound to the extent that it depends upon the informants of Strehlow and Hercus having obtained the place names and mythology from elders whose own knowledge had been acquired as far back as effective sovereignty. Black’s point concerning the lack of “guarantee” is a sound caution but it overlooks the nature of circumstantial evidence to which I referred earlier. It is in the very nature of such evidence that there cannot be guarantees.

465    Black pointed out that, while Stockigt had maintained that the knowledge base of Strehlow and Hercus had been informed by intact understandings of classical societies in the region, she had not indicated how that was so or why the same consideration would not apply to other contemporaneous materials. Later, at [147] of his first report, Black said that the determinations of TGH Strehlow (1971) and Hercus (1994) on which Stockigt had relied did not seem to be based on linguistic evidence and accordingly that he would not attempt to address them as part of his final discussion and opinion.

466    In his oral evidence, Black said that instead of relying on the information collected by TGH Strehlow and Hercus, he preferred to focus on sources recorded earlier which seemed “to tell a bit of a different story”. The material to which Black referred was from Wood, Gillen and Warburton, Kempe and East.

467    To my mind, this indicated some narrowness in the manner of Black’s approach. It is noteworthy that he himself did not maintain that position consistently in all of his evidence as there were instances in which he relied on ethnographic evidence. Moreover, Stockigt noted:

[T]here are very few linguists today who study language out of social context, and many linguists advocate for the importance of understanding the speaker’s world view and social structures when describing a language.

468    I have already given my reasons for concluding that the opinions of TGH Strehlow and Hercus can be regarded as reliable, with respect to both the ethnographic and linguistic aspects.

469    The reliability of the works of Strehlow and Hercus is confirmed by a comparison of the place names they were given by their informants with those on the early Pastoral Run Sheets. Eight of the place names recorded by Strehlow and Hercus are on the Pastoral Run Sheets prepared approximately 50 years earlier. Hercus had also compared her recordings of the mythology of the region with those made by the Lutheran missionaries in Killalpaninna in the 1890s and with those of Spencer and Gillen. Strehlow had compared the information he recorded with that obtained by his father.

470    Contrary to Black’s understanding expressed at [97] and [154] of his first report that Hercus’ work is “relatively recent (1992 and later)”, Hercus had been working in the region since 1965. She continued to visit people on country regularly thereafter, commonly 2-3 times per year, until the late 1990s. As Stockigt noted at [5], many of the Ularaka histories had been published in Hercus’ earlier works. Black has wrongly assumed that the Hercus publications were contemporaneous with the field work on which she was reporting. That Black described the work of Hercus as “relatively recent” seemed to involve not only a misunderstanding about the basis for her opinions but a lack of detailed familiarity with her work.

471    I also agree with Stockigt that Black’s initial disregard of the work of TGH Strehlow and Hercus on the basis that they were not linguists involves an underestimation of their work. The primary training of both had been in linguistics. Stockigt described Hercus as “an extraordinarily well trained linguist”. Black acknowledged in his evidence that she was one of Australia’s foremost linguists. Strehlow had been employed for many years as a Reader in Linguistics at the University of Adelaide. His Masters’ thesis was a comparison of Arrernte dialects. Moreover, as Stockigt pointed out, the fact that they had broadened their investigations beyond linguistics and had taken a multi-disciplinary ethnographic approach does not diminish the significance of their linguistic research to their findings.

472    An underestimation by Black of the usefulness of the material of Hercus was also apparent in his suggestion that Stockigt’s reliance on Hercus’ material had given rise to the possibility that her results were “seriously biased” (because Hercus’ accounts were of Arabana Ularakas only). This suggestion is belied by the evidence which indicated that Hercus had spent considerable time with senior and knowledgeable Antakarinja men and women, including in areas well west of the Overlap Area. This evidence was confirmed by, amongst other things, the 53 Language Elicitation Tapes obtained by Dr Hercus between 1 September 1965 and 31 January 1970 from informants who were, or who included, Antakarinja informants. It was also confirmed by the summary of Hercus’ informants which Graham and Liebelt included in Appendix A to their second report.

473    I agree with Stockigt that, given Hercus’ sustained and intense interest in the geo-mythology of the wider region and her work with Aboriginal people belonging to the three language groups associated with the Overlap Area, it is unlikely that place names in either Western Desert, Lower Arrernte or Arabana within the Overlap Area with mythologically associated meaning would have escaped her attention.

474    This evidence of Stockigt about the extent and thoroughness of the work of Hercus was not challenged and I did not understand Black ultimately to persist with his suggestion that Stockigt’s reliance on her works may have resulted in a biased representation. In fact, by the time he gave evidence, Black had come to accept that the work of Hercus was valuable, although he regarded the available data concerning some places as being “uneven”.

475    In these circumstances, I do not attach significance to the qualification which Black attached to his agreement that the linguistic and geo-mythological materials gathered by Hercus since the 1960s provided valuable evidence from which to infer the likelihood of language belonging to country in and or around the Overlap Area near the time of effective sovereignty.

476    Like Stockigt, I consider it reasonable to infer that the rigor which Strehlow applied to his collection of data supports the view that his 1971 map is a well-informed representation of the position at or about the time of effective sovereignty.

477    In short, I am well satisfied that it was appropriate for Stockigt to rely on the materials of both TGH Strehlow and Hercus.

The data obtained close to effective sovereignty

478    As noted earlier, Stockigt and Black agreed that the linguistic data from within the Overlap Area itself near the time of effective sovereignty is limited.

479    Black noted that Gillen in 1875 had collected approximately 50 words but that his list included both Arabana and Arrernte words. For reasons which Black gave, and which seem sound, it may well be the case that Gillen had collected the Arabana words south of the Overlap Area and the Arrernte words north of the Overlap Area, so that the inferences which may be drawn from his collection of words is limited.

480    Black suggested, however, that there was other early data suggesting that the language of Oodnadatta was Arrernte. It is convenient to refer first to the material which Black himself had identified before turning to other evidence identified by the parties by the time Stockigt and Black gave oral evidence.

The Lindsay expedition

481    Black referred first to the report of David Lindsay of the expedition which he had undertaken in 1885-6. The report included a “Vocabulary of the Languages spoken by the Natives in Latitudes 23 degrees to 28 degrees south as obtained by a Member of my Expedition”. It seemed to be common ground that the words in the vocabulary were Arrernte words. Black noted that Oodnadatta, being 27.54º south is within the area to which Lindsay’s expedition member had referred, giving rise to the inference that Arrernte was spoken in the Overlap Area. He also surmised (I consider reasonably) that Lindsay’s expedition had passed through the Oodnadatta area following the telegraph line to the Finke River which was the particular subject of his expedition. I also think it fair to surmise that at least one member of Lindsay’s expedition had been able to calculate latitude and longitude.

482    Nevertheless, given that there are approximately 110 kms between each line of latitude, the selection of 28º south seems, at least for present purposes, a rather broad brush form of demarcation. I note that Black had been willing to attach significance to this report in Lindsay without knowing the actual distance between two lines of latitude, without knowing the possible extent of rounding in the statement of Lindsay’s expedition member, and without knowing the area on an east-west axis to which the expedition member had been referring.

483    In my view, and contrary to the opinions of Black and, later, Liebelt, it would not be appropriate to take literally the reference of Lindsay’s expedition member to Latitude 28º south. It is implausible to regard a line of latitude (expressed as a whole number) which has no regard to topography or other local features as the point at which a language commenced, or ceased, as the case may be. It is more natural to suppose that the expedition member intended to indicate generally an area within which a language was spoken and did so by use of the next latitude expressed as a whole number. If that be correct, the expedition member may have been intending to indicate only that the Arrernte language was commenced to be spoken at some unidentified place between the 27th and 28th latitudes.