Federal Court of Australia
Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270
ORDERS
MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING Applicant | ||
AND: | Respondent COMMONWEALTH OF AUSTRALIA Respondent CENTRAL DESERT NATIVE TITLE SERVICES LTD Respondent (and others named in the Schedule) | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The separate question is answered as follows: KB (the grandmother of the applicant) held rights and interests in those land and waters of the application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of the Western Desert, and not under the normative system of a distinct land-holding group of which KB's descendants are the only identifiable surviving members.
2. The Nyalpa Pirniku respondent has liberty to apply in relation to costs until 4.00 pm AWST on 10 April 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKSON J:
1 Marjorie Strickland and her sister, Joyce Nudding, are together the applicant in this native title claim. They contend that their grandmother, who at their request I will call KB, belonged to a group of people called the Maduwongga. On that basis, Mrs Strickland and Mrs Nudding seek a determination that they and others who are related to them hold native title rights and interests in relation to an area of land and waters in the Goldfields region of Western Australia. The area is approximately 25,473 km2, and stretches from its south-western corner near Coolgardie, Western Australia, to a north eastern boundary marked by the Edjudina Range. The claim group is comprised of the descendants of KB, whose grandchildren include Mrs Strickland and Mrs Nudding.
2 In a different proceeding, WAD 91 of 2019, another claim group, the Nyalpa Pirniku (NP claim group), seek a native title determination in their favour in respect of country which, again in broad terms, sits mainly to the north-east of the Maduwongga claim area, but also overlaps with the north-eastern third of that area. These reasons concern a separate question which is intended to determine a dispute between the Maduwongga applicant and the Nyalpa Pirniku respondent (NP respondent) which arises out of that overlap.
3 The question, which was posed in orders which Bromberg J made on 20 November 2019, is:
Did [KB] (the grandmother of the applicants in the Maduwongga Application [i.e. this proceeding, application WAD 186 of 2017]) hold rights and interests in those land and waters of the Maduwongga Application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of:
(1) the Western Desert; or
(2) a distinct land-holding group of which KB's descendants are the only identifiable surviving members?
4 The members of the NP claim group contend that they have rights and interests in relation to the NP claim area under the traditional laws and customs of the Western Desert. And they accept that KB held rights and interests in the overlap area. So the issue raised by the separate question is: under which traditional laws and customs did KB have those rights and interests? Since KB is the apical ancestor of the members of the Maduwongga claim group, the answer will have significant implications for their claim.
5 To put the question in its historical context, according to an estimate of KB's age given by the 20th century anthropologist Norman Tindale, KB was born in about 1880. She died in 1945. The Goldfields region began to experience European settlement in the 1890s and it is only from that time that there begin to be written records that could help identify the traditional laws and customs that were acknowledged and observed in the area. So because it focuses on KB, the question concerns the period of time from about 1890 until 1945.
6 It was common ground that in around 1892 to 1894, European settlement began to occur apace in the Goldfields, and that the laws and customs of the Aboriginal people who occupied that area just before that time may be taken to be the same as they were in 1829, when the British Crown asserted sovereignty over the area that is now Western Australia (see Western Australia v Commonwealth (1995) 183 CLR 373 at 429). That is supported by the opinion of the expert witnesses called in this case. I will call that later time of 1892 to 1894 (precision is unnecessary here) the time of effective sovereignty.
7 The parties who took an active role in relation to the separate question were the Maduwongga applicant, the NP respondent, the State of Western Australia and representatives of another Aboriginal claim group the Marlinyu Ghoorlie, whom I will call the MG respondent. That respondent in this proceeding is the applicant in a native title claim over an area which also overlaps with the Maduwongga claim area, but does not overlap with the NP claim area. The MG respondent took part on the basis that they have an interest in the answer to the separate question because, if it is answered unfavourably to the Maduwongga, that may have implications for the overlap between the Maduwongga and Marlinyu Ghoorlie claim areas.
8 For the following reasons, I have concluded that KB held rights and interests in relation to land and waters in the overlap area under the normative system of traditional laws and customs of the Western Desert, and not under the normative system of any distinct land-holding group of which KB's descendants are the only surviving members.
Some observations about the separate question
9 It is useful to make a few observations about the separate question at the outset. The first is that the question has been framed by reference to concepts that appear in the explication of the definitions of 'native title' and 'native title rights and interests' in s 223 of the Native Title Act 1993 (Cth) (NTA) which was given in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422. It is convenient to set out s 223(1) now:
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.
10 The explication of this given in Yorta Yorta related in particular to s 223(1)(a) and concerned, among other things, the concepts of a society, defined as a body of persons united by their acknowledgment and observance of a body of laws and customs, and of rights and interests in relation to lands and waters being possessed under those traditional laws and customs: see Yorta Yorta at [47], [49] (Gleeson CJ, Gummow, and Hayne JJ, McHugh and Callinan JJ agreeing). The separate question directs attention to those concepts, because it requires identification of which of two possible normative systems applied in the overlap area. It is common ground that the question requires KB to be placed in one of those systems.
11 However, it is not common ground that either of those systems actually existed. The respondents do not accept that during KB's time there was a distinctive society and system that could be designated as Maduwongga. And as will be seen, the Maduwongga applicant also sought to cast doubt over whether the existence of the relevant Western Desert society had been established.
12 While the separate question uses the term 'distinct land-holding group', rather than society, I proceed on the basis that whether the Maduwongga group is or is not distinct will depend on whether it constituted a society in the Yorta Yorta sense that was united by acknowledgment and observance of a body of laws and customs different to the body of laws and customs acknowledged and observed by the people of the Western Desert. By seeking a finding that they comprise a separate land-holding group, the Maduwongga are not saying that they were a defined group of people that held exclusive rights and interests in relation to particular country under a Western Desert normative system of broader application. They claim their own normative system.
13 The competing answer at (1) in the separate question was that contended for by all the respondents who took an active part in the issue. They contend that KB was not a member of any distinct Maduwongga society but was, rather, one of a number of persons who acknowledged a body of laws and observed a body of customs that were acknowledged and observed over a broader area of the Western Desert. No party suggested that KB acknowledged and observed laws and customs of both Maduwongga and Western Desert normative systems, or otherwise had some kind of dual identity or affiliation.
14 Second, as the discussion above suggests, the separate question can be read as implying that the issue is not whether KB held any native title rights and interests in the overlap area. And indeed, the parties to the proceeding who have participated in the determination of the separate question have not approached it on that basis. So what is at stake in the separate question is not whether KB's descendants, including Mrs Nudding and Mrs Strickland, hold any native title rights or interests in the overlap area. It is whether those people hold rights and interests to the exclusion of, or at least separably from, others who may claim under Western Desert laws, such as the members of the NP claim group.
15 Third, and that said, it must be recalled that a determination as to native title is a determination in rem that binds the whole world: Jango v Northern Territory of Australia [2007] FCAFC 101; (2007) 159 FCR 531 at [85]. So it is not enough that the parties to this proceeding do not contest that KB held native title rights and interests. The Court still needs to be satisfied of that on balance of probabilities, taking into account the nature of the cause of action and subject matter of the proceeding and the gravity of the matters alleged: Evidence Act 1995 (Cth) s 140(1); Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [768]. While the party with the onus of proof does not need to exclude or resolve all doubts, disconformities and possibilities, it must persuade the Court that the position for which it contends is more likely than not: Narrier v State of Western Australia [2016] FCA 1519 at [403].
16 Fourth, and on the subject of onus, the parties accepted that the onus is on the Maduwongga applicant to prove that the Maduwongga did constitute a distinct group holding native title rights and interests under a normative system of laws and customs that is to be distinguished from any system observed by the people of the Western Desert, and that the group included KB. Conversely, they also accepted that the onus was on the NP respondent to prove that KB in fact held native title rights and interests under a system of laws and customs of a broader Western Desert group. This is on the basis that it is a rule of evidence and of common sense that the burden of proof is on the party who asserts a fact, not the party who denies it: Drill at [789] citing Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 at [39]. That is not to say, of course, that the two matters are independent of each other. To the contrary, any increase in the probability that one of them is true necessarily reduces the probability that the other is.
17 Fifth, the separate question asks nothing about what has happened since KB's death, so there is no need for present purposes to determine whether any relevant laws and customs have continued to be observed since then or whether a continuous connection to country has been maintained. The separate question is not about ongoing acknowledgment and observance of laws and customs, or about ongoing connection to the land. Evidence about the circumstances after KB's death may, however, be relevant to inferences that need to be made about the position during her lifetime.
18 Finally, there was discussion in court between counsel for the parties and Bromberg J about the consequences if, contrary to the Maduwongga case, an affirmative answer is given to the first part of the separate question (at (1)). Senior counsel for the Maduwongga applicant confirmed to his Honour that if KB did hold rights and interests in the overlap area under the normative system of traditional laws and customs of the Western Desert, the Maduwongga application, that is this proceeding, should be dismissed. That was on the basis that an answer to that effect would mean that there was no separate land-holding group known as the Maduwongga. The State and the MG respondent confirmed at the same time that if that were the outcome, there should be no order as to the costs of the Maduwongga application (counsel for the NP respondent did not have instructions on the costs point at that time).
19 Before describing the parties' respective cases, it is convenient to comment on a few specific matters.
How 'Maduwongga' will be used in these reasons
20 The very existence of a people who can be identified as the Maduwongga is in issue in these proceedings. But it would be cumbersome to try to refer to the apical ancestor, KB, and her descendants in any other way. So I will generally use the term in these reasons to designate that group of people, that is, depending on context, one of the following: the present Maduwongga applicant; the present Maduwongga claim group; the ancestors, descent from whom the Maduwongga applicant says confers native title rights and interests in the Maduwongga claim area; and sometimes other people referred to in the evidence who may or may not be Maduwongga. So unless the context indicates otherwise (including at Section XII below), the use of the word 'Maduwongga' to designate a group of people in the course of considering and writing these reasons implies no concluded view about the issues in dispute. The same goes for the use of the word to designate other matters which are the subject of dispute, such the existence of Maduwongga laws and customs, a Maduwongga country or a Maduwongga language.
21 There was extensive reliance on evidence adduced in an earlier case, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31. (I will use 'Wongatha' (unitalicised) to refer to the proceeding as distinct from Wongatha to refer to the reported reasons for decision.) In Wongatha Lindgren J determined a number of claims to land in the Goldfields, including a claim by the Maduwongga. Mrs Strickland and Mrs Nudding both gave evidence in that proceeding. Pursuant to s 86(1)(a) of the NTA, several passages from their evidence and from other lay evidence adduced in Wongatha were admitted into evidence in this proceeding, by consent.
22 I will weigh that evidence on the common sense basis that I did not observe the witnesses give it and that, while it included cross examination, I have not been apprised of the precise matters that were in issue and to which that cross examination went. That is, the evidence is presented to me shorn of a great deal of context, and as a result a cautious approach must be taken to it. That does not, however, mean that it is without value; no party in this proceeding submitted that the questions before Lindgren J in Wongatha were so different from the separate question here so as to rob the evidence of any value in this proceeding.
23 Some of the evidence in Wongatha was from witnesses who have since passed away and so could not give evidence in this proceeding. Where a witness did give evidence in this proceeding, I will tend to give it greater weight on the basis that the parties here did at least have an opportunity to test it. But as will be seen, with the exception of Mrs Nudding and Mrs Strickland, the cross examination of witnesses and hence the ability to observe them giving evidence orally was limited, so for the most part the comparison is between the written evidence of a witness here and the transcript of the testimony in Wongatha.
24 The outcome in Wongatha was that Lindgren J determined that the Maduwongga applicant in that case had not established its claim. The respondents who took part in the separate question do not say that that determination precludes the Maduwongga claim at the threshold, although they did seek to make forensic use of the claim and outcome in Wongatha as well as what they say are five other previous applications that Mrs Strickland and/or Mrs Nudding have brought in relation to some or all of the same area of land. The State's opening submissions sought to make extensive use of the findings of Lindgren J in Wongatha. But, as the Maduwongga applicant pointed out, no order had been made under s 86(1)(c) of the NTA for those findings to be adopted in this proceeding, and s 91 of the Evidence Act is a broad restriction on the admissibility of findings of fact in other proceedings. While the State made brief reference to certain findings in Wongatha in its closing submissions, it did not dispute the basis of the Maduwongga applicant's objection and it made no application for s 86(1)(c) of the NTA to be applied here. While the NP respondent did make an application under that provision, ultimately the application was not pressed. In what follows I have made my own findings based on the evidence and submissions in this proceeding, and have placed no reliance on Lindgren J's findings of fact in Wongatha.
Western Desert and the Western Desert Cultural Bloc
25 Much of the debate between the parties was couched in terms of whether the overlap area fell within the 'Western Desert Cultural Bloc' (WDCB). That term was coined by the anthropologist Ronald Berndt in his seminal 1959 article 'The Concept of "the Tribe" in the Western Desert of Australia' (1959) 30 Oceania 81-107. For Berndt, it described a large cluster of peoples inhabiting the Western Desert who had similar or related laws and customs. The Western Desert is a vast area which extends from eastern and north-eastern Western Australia into western South Australia.
26 I will generally, but not assiduously, avoid the terminology of the Western Desert Cultural Bloc or WDCB. I do not consider it useful to debate over a mid-20th century anthropological concept (see Narrier at [7]) and it is not the terminology used in the separate question. Where possible I will simply refer to peoples, laws and customs of the Western Desert. But this different terminology does not necessarily reflect disagreement with the substantive content of parties who spoke in terms of the WDCB.
Terminology, spelling and names
27 Words from Aboriginal languages will generally be italicised unless they are proper names used to designate individuals or groups. I will endeavour to use the spelling of the words that is given in the evidence adduced by the persons who speak (or claim to speak) the language. The spellings Walyen and Waljen were used interchangeably by the parties and in the lay evidence. Throughout these reasons the term Walyen will be used, following the practice of one of the expert witnesses, Dr John Morton.
28 I will generally refer to people by their surnames and title. Where people share the same surname, in order to avoid confusion I will generally simply refer to them by their full names without the title, although occasionally it will be preferable just to use first names to avoid unwieldy repetition. In none of this is any discourtesy or disrespect intended.
29 As far as the Court has been made aware, KB is the only deceased person whose name it is preferable not to use. If there are other deceased persons whom I have unknowingly named where I should not have, no offence is intended. Apart from one paragraph of a report of an expert witness, Dr Christine Mathieu, of March 2020, to which it is not necessary to refer, the Court has not been told that any of the evidence concerns matters that are gender restricted or subject to other sensitivities.
30 It will be necessary to use some terminology which is potentially offensive today, because it appears in the primary materials, by which I mean notes and other documents prepared by 20th century ethnographers and anthropologists such as Daisy Bates and Tindale. In doing so no disrespect or offence is intended.
III. THE PARTIES' CASES AND THE ISSUES ARISING
31 Each of the parties who took an active role in relation to the separate question filed a statement of facts and contentions (SOFAC) before the separate question was stated. But the focus provided by the separate question meant that the parties' contentions underwent some refinement, so it is appropriate to proceed largely by reference to the opening and closing submissions of the parties during that hearing. It is necessary to appreciate the way in which the parties ultimately put their cases: see AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [39] (Bennett J) and the authorities cited there. In any event, no party contended that there was any significant difference between those submissions and the SOFAC.
The Maduwongga applicant's case
32 The Maduwongga applicant's main contention is that KB held rights and interests in the land and waters within the Maduwongga claim area under a normative system of laws and customs relating to land tenure that was distinct from and antithetical to any normative system of laws and customs observed by the peoples of the Western Desert. It also contends that KB's descendants comprise the only identifiable surviving members of the group who hold rights and interests in the land and waters in the Maduwongga claim area.
33 According to the Maduwongga applicant's SOFAC, at effective sovereignty the claim area was occupied by a group of Aboriginal people who spoke the Maduwongga language and formed a 'socio-linguistic community'. This socio-linguistic community is said to have included the ancestors of Johnny, KB's father, and their descendants, including KB.
34 The group was held together, in accordance with a body of traditional laws and customs, by kinship ties established by descent and marriage. The Maduwongga applicant describes the ethno-historical expert evidence of Dr Christine Mathieu, on which it relies, as being to the effect that (Maduwongga applicant's SOFAC para 8):
Rule-based marriage relations, organised on the basis of an endogamous moiety system, structure a complex of hereditary social and cultural interdependence from which all economic and ceremonial rights and obligations to land are derived.
(It will be seen, however, that by the time of closing submissions the Maduwongga applicant sought to draw a sharp distinction between 'economic' rights and obligations and 'ceremonial' ones).
35 A moiety system exists when the society is divided into two groups. They can be vertical, determined by descent, or horizontal, breaking the society up into different, often alternating generations. It is an endogamous moiety system if people marry within their moiety. The Maduwongga applicant's SOFAC said that kinship, along with ecological knowledge of country obtained from ancestors, were the cultural foundations of land ownership under the body of laws and customs. By the time of closing submissions, the focus of the Maduwongga applicant's case was that the land tenure of members of the group was conferred under a system of laws and customs relating to birthplace, descent and marriage.
36 Specific laws and customs on which the Maduwongga applicant relies will be described in more detail below, but the following summary serves to highlight the main aspects:
(1) In the Maduwongga system of laws and customs, rights and interests in relation to the land and waters are obtained by descent (including child adoption) from an ancestor acknowledged to have been from that land and to have possessed rights and interests in relation to it.
(2) Members of the group have personal, family or district totems. However, this point did not really feature in the evidence.
(3) Male members of the group practise ritual initiation, although it would seem that the last initiated Maduwongga man was KB's son, Arthur Newland who died in 1987.
(4) Members of the group believe in the concept of tjukurrpa or Dreaming, and acknowledge and observe several Dreaming tracks that pass through the area. These are linked to the travels of ancestral beings and objects and have songs attached to them.
(5) Strangers must ask permission to have access to the land or must be accompanied by a person recognised as having rights or interests and knowledge of or authority in relation to the land.
(6) Members of the group have rights to hunt, gather, fish and take resources from the land and there are rules about the taking, preparation, use and sharing of those resources.
(7) There are laws and customs governing access to, protection of and responsibility for places of significance in the claim area, including behavioural requirements when approaching and entering those places. Rights in relation to ceremonial sites are, however, distinguished from rights and interests in relation to land. Initiation into knowledge about creation, songlines and stories gains ceremonial access to parts of country, but not access to hunting and resources without permission.
37 It is not immediately obvious how most of these matters serve to distinguish the Maduwongga normative system from the normative system observed in the Western Desert. But according to the Maduwongga applicant, there are two key points of distinction:
(1) In the Maduwongga system, rights to land are held on a communal basis arising out of marriages between individuals from contiguous estates and transmitted, as has been said, by descent, whereas in the Western Desert they are held on the basis of 'multiple pathways' concerning an individual's relationship to the land (which will be described below).
(2) In the Maduwongga system, there is no section system, whereas in the Western Desert social relations are governed by a four-section system.
38 Section systems are also referred to in the evidence and the anthropological literature variously as 'class', 'skin group' or 'skin' systems. In her first expert report filed on 8 November 2019 in this proceeding (Mathieu I), Dr Mathieu described a four-section system as one in which (para 112):
people belong to one of four classes which dictates who they should and should not marry: section x can only marry section y, and section a must marry section b. Individuals inherit their section membership on account of their parents' own class membership. The four-class system creates generational divisions, as well as a division between parallel (Mother's Sister's children/Father's Brother's children) and cross-cousins (Mother's Brother's children, Father's Sister's children).
39 The two key points of distinction on which the Maduwongga case relies are thus related, as the regulation of marriage relations is an important aspect of a section system (which can also be the basis of rules about other matters - see Section XI below). The respondents approached the case on the footing that these asserted features of the Maduwongga laws and customs would, if established, provide points of distinction between those laws and customs and those of the Western Desert normative system. However the respondents contended that the Maduwongga applicant failed to establish those features, and that this meant that their claim as a whole must fail.
40 The Maduwongga applicant sought to establish the existence of these key points of distinction mainly by means of expert evidence from Dr Mathieu. Dr Mathieu's opinion was to the effect that the territorial area of the Maduwongga is defined by a marriage system, in which at the time of effective sovereignty, the people between Edjudina and Coolgardie formed one 'marriage line' and were all relatives. In a concurrent expert evidence session Dr Mathieu described a marriage line as meaning that the people married between areas she had specified, to produce territorially contained marriage connections. Marriage classes corresponded to waterholes, implying a system of marriage exchange, based on territorial exogamy. According to a supplementary report of Dr Mathieu, filed on 11 March 2020 (Mathieu II), marriage exchange is an 'expression of reciprocity' (Mathieu II para 124). Over the course of generations, 'marriages between estate holders give individuals access to the entire aggregate [tribal] territory' which has implications for what Dr Mathieu calls primary and secondary rights (Mathieu II para 126). Marriage exchange rules thus determine who may marry whom and what rights and obligations, including in relation to land, are conferred as a result of those marriages.
41 The Maduwongga applicant placed considerable reliance on Dr Mathieu's interpretation of kinship terms that were collected at Canegrass, a location approximately one third of the way south of Menzies on the way to Kalgoorlie. They were collected by the journalist and (untrained) ethnographer Daisy Bates in the early 20th century. The vocabulary used in the area was, Dr Mathieu says, consistent with an endogamous moiety system and so distinct from a four-class skin section system. Territorial patterns of marriage exchange are also said to be associated with birthplaces in the Maduwongga claim area.
Other matters said to distinguish the Maduwongga from Western Desert societies
42 In its written opening submissions, the Maduwongga applicant contends that the following further matters support the claim that the Maduwongga comprised a distinct land-holding group identified with the Maduwongga claim area:
(1) Self-identification, that is, the Maduwongga applicant says that KB called herself 'Maduwongga'.
(2) Territorial identification, in that KB identified the boundaries of her traditional country as an area that lies beyond the boundaries of the 'Western Desert Cultural Bloc' (see Section VIII below) and which is bounded on all sides with significant physiographic (that is, geological and topographical) and environmental features. These include what is said to be a natural geographic boundary between Maduwongga country and the country identified with the tribe known as the Walyen. That boundary is said to follow Lake Raeside and the Edjudina Range. It is also said to be a region where the predominantly eucalyptus vegetation and permanent water sources contrast with the drier mulga vegetation to the east of the Edjudina Range.
(3) Birth and association with the area: the Maduwongga applicant contends that KB was born at Edjudina, as were both of her parents and it says that she lived in the area and gave birth to all her children within the area.
(4) Language, in that KB, the Maduwongga applicant says, spoke a Western Desert language (WDL) with a southern influence. It says that while this was mutually intelligible to the people at Mt Margaret and Laverton, who also spoke WDL, it was perceived by those people as 'different'.
(5) Ritual membership, with responsibility for conducting rituals within the claim area being demarcated between those connected to Maduwongga country and others.
43 In relation to the third of these, all parties placed considerable importance on their competing versions of the duration and nature of KB's association with the overlap area and in particular Edjudina. As can be seen from the map attached to these reasons as Annexure A, that is a place some 20 km south-west of the north-eastern boundary of the Maduwongga claim area, which coincides with the Edjudina Range (a larger map of the overlap area was in use at trial but is too large scale to reproduce usefully in these reasons). It is also within the NP claim area and so within the overlap area. So both the Maduwongga claim group and the NP claim group claim to hold native title rights and interests in relation to the area around Edjudina.
44 The Maduwongga applicant says that KB's association with the claim area and the other matters referred to above support the conclusion that KB was a member of the Maduwongga society, being a society united by its observance of the laws and customs summarised above, and was not a member of any Western Desert society.
The relevance of Western Desert societies, laws and customs
45 While the Maduwongga applicant acknowledges a relationship between the Maduwongga and peoples of the Western Desert, it says that the relationship was primarily ritual in nature and not related to land tenure. The Maduwongga applicant also submitted that the term 'Western Desert Cultural Bloc' does not describe any specific society, but is rather a term by which anthropologists designate a number of peoples who have more in common with each other culturally and linguistically than they do with other groups.
46 Nevertheless, the Maduwongga applicant does not contest the description given in the NP respondent's SOFAC of the multiple pathways by which a person or group in the Western Desert Cultural Bloc comes to have rights and interests in relation to lands and waters. The Maduwongga applicant describes those pathways as follows:
(a) birth in or long association with the area, or a related tjukurrpa track, by a person or that person's ancestor;
(b) long term residence in the area;
(c) biological or socially recognised descent from persons with a connection to the area at effective sovereignty or the early decades of the 20th century;
(d) death or burial of a close relative in the area;
(e) caring for the country over a long term; and
(f) ceremonial responsibility for the area.
47 The Maduwongga applicant accepts the multiple pathways model in so far as it describes laws and customs followed generally by occupants of the Western Desert at sovereignty. It also accepts that if the traditional land holding rights for the overlap area were conferred under Western Desert laws and customs at the time of effective sovereignty, then KB would have accrued land rights in the Edjudina area in accordance with those laws and customs by virtue of her long-term association with and residence around Edjudina. But, the Maduwongga applicant says the NP respondent has failed to establish that the laws and customs governing the overlap area at effective sovereignty were Western Desert laws and customs. The Maduwongga applicant points out that only five of the persons identified as ancestors in the NP claim were born in the Maduwongga claim area. It says further that there is no evidence that any of the identified persons were associated with the overlap area prior to effective sovereignty.
48 The Maduwongga applicant accepts that tjukurrpa from the Western Desert pass over the Maduwongga claim area. But it seeks to draw a distinction between ceremonial and ritual knowledge and responsibilities connected to tjukurrpa, and rights to and interests in land, including the right to speak for country and to use resources. So, it contends, while there are watis (initiated men) from the NP claim group who have ceremonial responsibility for sites within the overlap area, and there are presently no watis in the Maduwongga claim group, that does not correlate with members of the NP claim group having rights to and interests in land in the overlap area.
49 It is worth noting at this point that while the Maduwongga applicant relies on aspects of the evidence of Mrs Strickland and Mrs Nudding, as well as the evidence of a wati of the Pilki people, Daniel (Stevie) Sinclair, in large part the propositions above, particularly with regard to Maduwongga laws and customs, depend on the expert evidence of Dr Mathieu.
50 There was no appreciable difference between the positions taken by the three respondents who took part in the separate question, that is the State, the NP respondent and the MG respondent. They were at one in saying that the Maduwongga applicant had not established the existence of any distinct Maduwongga society during KB's lifetime or at any other time. The NP respondent expressly adopted the State's submissions, as well as the MG respondent's submissions. The MG respondent largely adopted both the State's and the NP respondent's submissions. And the State adopted the NP respondent's and the MG respondent's submissions. So it is convenient to describe the respondents' cases together.
Whether there was a Maduwongga society
51 The State submits that the Maduwongga applicant's position runs counter to 'the vast majority' of Aboriginal evidence and anthropological and other expert evidence. It contends in particular that the views of the anthropological expert on whose evidence the NP respondent relies, Dr Morton, are to be preferred to those of Dr Mathieu. The State submits that Dr Mathieu's model of a distinct Maduwongga group, based on her interpretation of genealogical terms so as to construct a model of marriage relationships, is wrong. According to the State, Dr Mathieu has deduced the model (on an admittedly preliminary basis) based on limited and selective material that, in any event, does not support it. She is not a linguist and the data collected by Bates on which she has based her model is unreliable. It is likely that at least parts of it, which Dr Mathieu characterises as evidence of a distinctive Maduwongga model of marriage and kinship, in fact comes from WDL speakers. The State submits that Dr Mathieu's marriage line is incompatible with its apparent source in the writings of Bates. It is incompatible with evidence of how people said to belong to the Maduwongga actually married, including the evidence of Mrs Strickland and Mrs Nudding themselves. It is compatible with a skin or section system operating in the overlap area, including at Edjudina.
52 On the subject of KB's origins, the State's position is that she came originally from 'spinifex' country to the east of the overlap area; likely somewhere to the east of Laverton. The State says that KB and her family may well have obtained rights in the country around Edjudina, but that she did so under Western Desert laws and customs. The State agrees with the narrative given by Dr Morton, of KB and her family as Western Desert people who migrated into the overlap area in the late 19th century. It submits that Dr Mathieu's reliance on the material from Tindale's archives is narrow and selective, and when it is considered in the broader context of other material in the archive it does not support the claim that KB (and her father Johnny) was born at Edjudina. The MG respondent also made several submissions to the effect that some of Dr Mathieu's opinions were at odds with a common sense reading of Tindale's materials.
53 Once again, these submissions will be considered below in the context of all the evidence. The evidence includes the only records of the words of KB herself, being notes made by Tindale, or others working with him, of things she said in May 1939. That includes a statement to Tindale that in her country there was no four class system. The State says that the best explanation for this is that she is referring to the country she originally came from, where the section system did not reach until later. Both the State and the NP respondent place considerable weight on a journal entry by Tindale to the effect that the Maduwongga originally came from spinifex country to the east.
54 According to the respondents, the Maduwongga case relies heavily on Tindale's identification of a Maduwongga 'tribe'. The State submits, unequivocally, that Mrs Strickland first learned of 'Maduwongga' from Tindale. The MG respondent submits that Dr Mathieu relies heavily on the fact of Tindale having published a map in 1974 showing a Maduwongga territory, and contends that this reliance is misplaced. The State says that Tindale's designation of a separate Maduwongga group was wrong, being contrary to other 20th century and contemporary anthropology, his own field data, and the Aboriginal evidence. It is generally acknowledged in Australian anthropology that Tindale's tribal model is deficient in many respects and is not properly applicable in the Western Desert. Tindale is the only anthropologist to have identified the Maduwongga as a group, concept or term in or around the overlap area and, according to the State, this is not supported by his primary ethnographic data. The State points, too, to what it says is the ubiquity of the term, and similar terms, in the WDCB, with the word 'madu' simply being used in parts of the WDCB to refer to an Aboriginal person, rather than designating a land-holding group or tribe.
55 As to other points relied on by the Maduwongga applicant, the State says:
(1) KB and her descendants were and are WDL speakers whose asserted laws and customs are recognisably laws and customs of the Western Desert. The State says that while Mrs Strickland and Mrs Nudding asserted that their ancestors spoke a language called Maduwongga, all the evidence is to the contrary and the few remaining purported Maduwongga words that have been identified are in fact WDL words. In any event, within the Western Desert, linguistic groups are not the same as land-holding units. The MG respondent supported these contentions and said that if there was a distinct group that occupied the overlap area that spoke a WDL dialect, it is likely that the group observed Western Desert laws and customs.
(2) The State relies on evidence of several Aboriginal witnesses in Wongatha, including KB's now deceased grandson Albert Newland (whose relationship to KB the Maduwongga applicant now disputes) and others, who were unaware of a Maduwongga group.
56 The respondents also say that the case that Mrs Strickland and Mrs Nudding presented in Wongatha was that their claim group adhered to laws and customs of the Western Desert, which is inconsistent with the position they now advance on the separate question. The State refers to a number of matters where, it says, Mrs Strickland and Mrs Nudding gave evidence in Wongatha that contradicts the position the Maduwongga applicant now takes. Those instances will be considered in the course of the analysis of the evidence below.
57 The Maduwongga applicant says that this characterisation of the position Mrs Nudding and Mrs Strickland took in Wongatha is 'not entirely accurate' but does concede that in Wongatha they did submit that the relevant society under which they received rights and interests in land was the society of the Western Desert. They seek to explain that by saying that it was based on the view of the anthropologist they had retained at the time, Dr Edward McDonald, and that Dr Mathieu has since reached a different view.
Western Desert laws and customs in the overlap area
58 According to the State, the ethnographic and Aboriginal evidence demonstrates that the geographical area covered by Western Desert laws and customs includes all of the overlap area, which was and is occupied by Western Desert people. The State sets out 'ethnographic' sources, being late 19th century to mid-20th century accounts by lay and amateur observers and by professional anthropologists which, the State says, establish that the overlap area lay within the area of the WDCB. The State also points to the evidence in the separate question of several members of the NP claim group. The NP respondent supplements this by references to evidence from Aboriginal people in this proceeding and in Wongatha. I will leave a more detailed description of this aspect of the cases of the State and the NP respondent until Section XIII below, when I come to consider whether KB held rights and interests in relation to the overlap area under the traditional laws and customs of the Western Desert.
59 The NP respondent acknowledges that KB and her descendants possess rights and interests in the NP claim area, including the overlap area. But it says that members of its claim group had and have close associations with the overlap area. The NP respondent says that there is no basis on which the Maduwongga can assert exclusive rights and interests in the overlap area. Instead, they are (or should be) part of the larger NP claim group, which in turn is a subset of the broader Western Desert peoples.
60 The NP respondent submits that there can be different kinds of land-holding groups (a term used in the separate question) defined by different kinds of rights and interests in land; for example a right to speak for country or to be asked about country, as distinguished from rights to use country. It contends that the people of the Western Desert do comprise a society, in the sense of the term used in Yorta Yorta, that is, a group united by observance of a normative system of laws and customs. But within that society there can be land-holding groups being groups of persons who together have rights and interests in relation to an area of land (not the entire Western Desert). Members of the NP respondent refer to themselves as Wangkayi, being Western Desert people associated with the south-western part of the Western Desert, although not all Wangkayi are members of the NP claim group.
61 The NP respondent made two specific submissions that went beyond the submissions put by the State. The first is as to the significance of the association between the overlap area and Western Desert laws and customs concerning tjukurrpa and related ceremonies and sites. This, the NP respondent submits, is a compelling factor in favour of finding that the overlap area was associated with Western Desert laws and customs during KB's lifetime and that she held rights and interests in the overlap area under those laws and customs. The State's submissions and the NP respondent's submissions placed some emphasis on tjukurrpa as the foundation of those laws and customs. And according to the State, tjukurrpa and watis are key indicia of Western Desert laws and customs.
62 The NP respondent's submissions supplement this by addressing the Maduwongga applicant's contention that, while Western Desert 'Law business' and rituals are associated with the Maduwongga claim area, those ritual connections do not confer or come with rights to speak for country. The NP respondent accepts that wati who hold tjukurrpa associated with the overlap area and responsibility for related sites in the area may not have the right to speak for the area. But, the NP respondent says, the fact that wati from places as far away as Tjutjuntjarra (some 550 km north and east of Kalgoorlie, on the edge of the Great Victoria Desert Nature Reserve) and Warburton (some 700 km north east of Kalgoorlie) hold tjukurrpa associated with the overlap area is a strong indicator that the overlap area is associated with Western Desert laws and customs. For reasons that will be developed below, the NP respondent says that this is in the regional nature of the laws and customs relating to tjukurrpa and the ceremonies conducted in relation to it.
63 The other main additional submission that the NP respondent makes concerns the skin or section systems. For reasons that will, once again, be set out in detail below, the NP respondent contends that there were different section systems in place throughout Western Australia, and in the overlap area that had a dynamic history. That is, the areas within which section systems generally were observed were moving and changing, as were the areas covered by specific section systems. Also, the systems themselves were changing as they met with each other and people intermarried.
64 The NP respondent characterises the expert evidence about section names in the overlap area around 1910 (when, according to Tindale's estimate, KB would have been around 30 years old) as showing a mixture of two kinds of section system as well as the endogamous moiety system. According to the NP respondent, this evidence provides no support for an opinion expressed by Dr Mathieu that although section names were in use around the Edjudina area, this was solely for the purpose of external relations and did not regulate internal relations. The NP respondent submits that the presence or absence of section systems does not distinguish KB or members of her family from other Aboriginal people who were present in the overlap area during her lifetime.
The Maduwongga applicant's submissions in reply
65 In closing submissions filed in reply, the Maduwongga applicant submitted that the NP respondent had not established on the balance of probabilities that Western Desert laws and customs were observed in the overlap area during KB's lifetime. It pointed to different ways in which the respondents, and Dr Morton, had identified the society out of which the allegedly relevant laws and customs arise, and which they define, as explained in Yorta Yorta at [49]-[50]. The Maduwongga applicant submits that neither dialect nor the presence of a section system permit the identification of a single society across the Western Desert.
66 The Maduwongga applicant also submits that the information available as to ties between people in the overlap area and people in the rest of the NP claim area at the time of effective sovereignty is limited, and insufficient to discharge the NP respondent's burden of proof on this point. It also says, as I have noted earlier, that to the extent that there were ties, they were of a ritual or ceremonial nature only and did not pertain to rights and interests in land.
IV. THE STRUCTURE OF THE REST OF THIS JUDGMENT
67 After considering the principles of law that apply to this matter, and making some general observations about the witnesses, these reasons address the issues that arise from the parties' contentions summarised above, in the following order:
(1) Section VII: The Maduwongga group. This will consider whether there was during KB's lifetime, an identifiable group of people called the Maduwongga. That question encompasses whether there were people who self-identified as such and whether other Aboriginal persons recognised the existence of the Maduwongga. That will require consideration of the significance of the first recorded use of the term in the context of the present matters by KB in 1939. It will address the evidence as to the composition of the group during KB's lifetime. Biographical sketches of its members will be given, along with an examination of some points of contention. It will be in this part of the judgment that the evidence about KB's biographical details and her own words will be considered, in particular the important question of where she was born. That is because the information that Tindale gathered about those matters substantially informed his view, and later that of Dr Mathieu. At this point I will also consider the respondents' arguments as to the size of the Maduwongga group in KB's time and the relevance of that.
(2) Section VIII: Maduwongga country. This section considers Tindale's mapping of the Maduwongga 'tribal' area in 1940 and 1974 and discrepancies between his maps and the data he took from his Aboriginal informants in 1939 and 1966. It canvasses the significant controversy on that subject which developed between the expert witnesses, and other ethnographic materials from the early 20th century on which the experts rely. It considers the significance of the physical and ecological features of the claim area that are said to demarcate it from other areas, including the Edjudina Range, which is said to form a natural boundary between the Maduwongga tribal territory and that of the Walyen. It also canvasses the Aboriginal evidence about KB's country and that of her descendants, as well as the association of Wangkayi or Walyen people with the overlap area.
(3) Section IX: Maduwongga language. This section concerns whether the dialect spoken by KB and her descendants serves as a marker of a society distinct from that of the Western Desert. It also canvasses the expert evidence about whether a distinct dialect identifies a distinct land-holding group.
(4) Section X: Maduwongga laws and customs. This will examine the lay and expert evidence about the existence and content of laws and customs said to be observed in the claim area by the Maduwongga, other than laws and customs to which I will give the broad description of kinship. The kinship laws not covered in this section deal with subjects including section systems and rules as to marriage. On the Maduwongga applicant's case, those laws relate directly to the ultimate issue of rights and interests in relation to land and waters. They are therefore crucial to the Maduwongga applicant's case, so they will be given their own section, following this one. This section however, will address the broad topic of differences between Maduwongga customs and those of the Wangkayi or Walyen people, as well as a number of specific topics: ritual and ceremonial practices; initiation in the Law; the role of tjukurrpa in Maduwongga laws and customs; laws and customs governing protection of and responsibility for places of significance; and spiritual beliefs. These topics are all more or less interrelated and are divided up this way chiefly for convenience of exposition. Some of these topics were said by the Maduwongga applicant to engage the distinction between ritual and ceremonial aspects of those places and rights and interests in relation to the land.
(5) Section XI: Laws and customs as to sections, marriage, descent and transmission of rights and interests in land. As just mentioned, the topic of the laws and customs said to be observed in the Maduwongga claim area as to kinship and the acquisition and transmission of rights and interests in relation to land by means of such laws and customs, has its own section because of the importance it assumed in the Maduwongga case. It will include consideration of the evidence about the presence or absence, and significance, of a sectional classification system in the claim area. And it will focus, in particular, on Dr Mathieu's evolving model of rights and interests in relation to land being transmitted and acquired by means of a 'closed connubium' in which endogamous marriage rules and related acquisition of 'estates' by descent are said to have resulted in 'primary' land rights moving and staying within the asserted Maduwongga group.
(6) Section XII: Was there a Maduwongga society? Drawing on the conclusions reached in previous sections, I will make findings about whether there was, during KB's lifetime, a Maduwongga society, in the Yorta Yorta sense of a body of persons united in and by its acknowledgment and observance of a body of laws and customs, where those laws and customs were not the laws or customs of the Western Desert. This section of the judgment will explain why an affirmative answer cannot be given to the issue at the heart of the second part of the separate question, as to whether KB held rights and interests in the overlap area under the normative system of traditional laws and customs of such a distinct land-holding group.
(7) Section XIII: Were Western Desert laws and customs observed in the overlap area? By this point conclusions will have been reached about the existence of the Maduwongga as a distinct society, but it will then be necessary to address the other aspect of the separate question, namely whether KB held rights and interests in the overlap area under the normative system of traditional laws and customs of the Western Desert. This section will address the evidence, both lay and expert, as to the extent that laws and customs of the Western Desert were observed in the Maduwongga claim area. That will encompass:
(a) the extent to which it is necessary, for the purposes of determining the separate question, to identify a specific society that observed those relevant laws and customs in the Maduwongga claim area, and if it is necessary, how that society should be identified;
(b) the 'multiple pathways' model for the acquisition of land rights in the Western Desert';
(c) the significance of tjukurrpa, including the point of contention between the Maduwongga applicant and the respondents as to whether there is a meaningful distinction between the ceremonial and ritual aspects of tjukurrpa and its role (if any) in relation to rights and interests relating to land or waters;
(d) the ethnographic and anthropological evidence as to whether during KB's lifetime Western Desert laws and customs were acknowledged and observed in the overlap area; and
(e) where KB came from, that is, what the evidence reveals about where she was born and when and how she came to be associated with the overlap area.
(8) Section XIV: The answer to the separate question. This summarises the outcome by reference to the separate question.
68 It will become apparent to anyone charged with the task of reading these long reasons that the matters canvassed in Sections VII to XI are interrelated and interdependent, meaning it is necessary to defer making firm findings about the key issues until it is possible to consider them all together, in Section XII. That will not, however, deter me from making observations about the evidence along the way.
69 It is convenient to outline some of the established principles in relation to the identification of a distinct society united by common acknowledgement and observance of a normative body of laws and customs, as well as a few other evidentiary matters.
70 In Yorta Yorta at [49]-[50] Gleeson CJ, Gummow and Hayne JJ confirmed the central relationship between a body of laws and customs and the identification, as a society, of the group of persons who observe and acknowledge that body. At [49] their Honours said: 'Law and custom arise out of and, in important respects, go to define a particular society. In this context, "society'' is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs'. Their Honours footnoted that observation with the following (emphasis added): 'We choose the word "society" rather than "community" to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group'.
71 That does not require a technical approach. In Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 at [78] the Full Court said:
The concept of a 'society' in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is 'a body of people forming a community or living under the same government' - Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as 'societies'. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes.
72 The question posed by s 223(1)(b) of the NTA is whether Aboriginal people have a connection to the claim area by the traditional laws and customs referred to in s 223(1)(a). So even if they have ceased to comply with the laws and customs, for example if they no longer perform ceremonial responsibilities in relation to an area, the question would be whether, by those laws and customs, that means that they have ceased to have responsibilities (or rights and interests) in relation to the area: see De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325 at [313]-[314]; De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 at [63]-[64] (De Rose (No 2)); State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [64] (Ward HC).
73 Population shifts, in the sense of documented shifts of groups of persons into a claim area after sovereignty, do not necessarily lead to the conclusion that those persons or their descendants do not hold rights and interests in relation to the claim area under the normative system of traditional laws and customs that operated at sovereignty in the claim area. If the laws and customs of the Western Desert were observed in the claim area and provide for the acquisition of rights and interests by newcomers, not necessarily genealogically related to the inhabitants at sovereignty, those newcomers may still hold the rights and interests under the traditional laws and customs, if they have acquired those interests in a way acknowledged by those laws and customs: see De Rose at [220]-[268].
The relevance of cultural factors other than laws and customs
74 While the existence of a commonly observed body of laws and customs is central to the identification of the relevant society, it is not necessarily the only factor to which regard must be had. In Yorta Yorta Gleeson CJ, Gummow and Hayne JJ did not say that common observance of a body of laws and customs is the sole determinant of the existence of an identifiable society. They said it defines a society 'in important respects'. It is open to draw relevant inferences from evidence as to factors not directly linked to the existence and observance of laws and customs, such as language, self-identification and identification with a particular territory.
75 The relevance of that further 'constellation of factors' was considered by North and Mansfield JJ in Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26. There, the evidence established that there were distinctions between the Bardi and Jawi peoples of the Dampier Peninsula in terms of their languages, their self-identification (what they called themselves) and their identification with particular discrete territories. Nevertheless, the Full Court found that together, they comprised a single society because they observed the same body of laws and customs. At [67], after considering examples of the evidence of Aboriginal witnesses as to the common belief systems between the two peoples, their Honours held:
It remains necessary to consider the matters which the primary judge viewed as indicating that the Bardi and Jawi people constituted separate, albeit similar, societies at sovereignty. These matters, referred to by the primary judge as a 'constellation of factors', include the existence of distinct languages, the use of the self-referents Bardi and Jawi, and the existence of separate territories. When viewed against the evidence that the Bardi and Jawi people at sovereignty shared a single belief system on the fundamental matters of the creation and existence of rights and interests in land and waters, these factors have little significance and are not inconsistent with the existence of a single society.
76 Their Honours went on to consider differences in language (which they held to be 'at the level of dialect'), the use of the self-referents Bardi or Jawi, and territorial delineation. They then said at [71]:
The circumstances of each native title application are different. They depend heavily on the facts concerning the beliefs, histories, and practices of the particular native title claim group. It is therefore not normally useful to compare the facts in one case to the facts in others. However, the Court has ruled on quite a large variety of circumstances of native title claim groups so that certain lines have emerged between the characteristics of those groups which fall within the requirements laid down in Yorta Yorta and those which do not. Whilst it is not possible to push the comparisons too far, it is noteworthy that the Court has found in a number of cases that a native title claim group which adhered to an overarching set of fundamental beliefs constituted a society notwithstanding that the group was composed of people from different language groups or groups linked to specific areas within the larger territory which was the subject of the application.
77 Their Honours went on to consider several examples from previous decided cases. At [77] they said of a submission by the Bardi and Jawi people that the primary judge was not entitled to take the 'constellation of factors' into account:
Were it necessary to decide whether the primary judge was entitled to take into account the factors which he described as a 'constellation of factors' we would regard the argument of the Bardi and Jawi people as too widely stated. Whilst the ultimate fact to be proved by native title claimants is that they have been continuously united in their acknowledgement of laws and observance of customs, there are many subsidiary facts from which an inference may be drawn about that ultimate fact. It is too narrow to exclude from consideration factors which may bear on the existence of a normative system whilst not being direct evidence of the existence of that system. Indeed in the present case the array of factors relied upon by the Bardi and Jawi people themselves to demonstrate the existence of a single society at sovereignty highlights the point. They have not restricted themselves to factors which directly prove the existence of a normative system. For instance, the proof of the existence of songs about the sea is capable of showing that there were rules about the use of the sea even though the proof of the songs themselves is not proof of the law or custom.
78 So matters such as language and customs that do not pertain directly to rights and interests in relation to land can support inferences about the extent to which a given group of people have been united in their acknowledgement of laws and observance of customs. For that reason, and in view of the way in which the parties presented their cases, there will be extensive consideration of such matters in this judgment. Those matters must, however, be viewed as subsidiary to direct evidence that that the group shared a single belief system on the fundamental matters of the creation and existence of rights and interests in land and waters.
The asserted distinction between the ceremonial and ritual dimension and rights and interests in relation to land and waters
79 I have mentioned that the Maduwongga applicant distinguishes between ceremonial and ritual knowledge and responsibilities connected to tjukurrpa, and rights to and interests in land. However in this field it is necessary to take care before drawing any stark distinction of that kind. In Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [38], Gleeson CJ, Gaudron, Kirby and Hayne JJ said (footnote omitted):
Native title rights and interests must be understood as what has been called 'a perception of socially constituted fact' as well as 'comprising various assortments of artificially defined jural right'. And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land.
80 Earlier in Yanner v Eaton, at [37], the majority quoted with approval the statements of Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 358 that 'Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights. Traditional 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'. Both a right to speak for country reflecting 'a higher order, religious or sacred imperative' and a more mundane right to use the land economically, are rights and interests in relation to land or waters' for the purposes of the NTA: Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [160] (Barker J).
81 The question of whether particular roles and responsibilities rooted in tjukurrpa give rise to rights and interests in relation to land or waters must of course be answered by reference to the evidence about the laws and customs of the particular people involved. In the context of a particular group of people, the High Court has recognised what is, at the same time, the difficulty of translating a spiritual relationship with the land into the language of rights and interests, and the necessity under the NTA of doing so. In Ward HC at [14], Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
As is now well recognised, the connection which Aboriginal peoples have with 'country' is essentially spiritual. In Milirrpum v Nabalco Pty Ltd [(1971) 17 FLR 141 at 167], Blackburn J said that: 'the fundamental truth about the aboriginals' relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole'. It is a relationship which sometimes is spoken of as having to care for, and being able to 'speak for', country. 'Speaking for' country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. …
82 And at [90] their Honours observed:
As we have said, it may be accepted that the right to be asked for permission and to speak for country is a core concept in traditional law and custom. As the primary judge's findings show, it is, however, not an exhaustive description of the rights and interests in relation to land that exist under that law and custom. It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with 'country' in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer.
83 These observations are a reminder that it is important not to permit a complex relationship between people and country with many dimensions to be fragmented too readily into a set of rights and interests in land and, say, a set of ceremonial rights and responsibilities. Consistently with that, in Griffiths v Northern Territory of Australia [2007] FCAFC 178; (2007) 165 FCR 391 at [127], French, Branson and Sundberg JJ held:
It is not a necessary condition of the exclusivity of native title rights and interests in land or waters that the native title holders should, in their testimony, frame their claim to exclusivity as some sort of analogue of a proprietary right. In this connection we are concerned that his Honour's reference to usufructuary and proprietary rights, discussed earlier, may have led him to require some taxonomical threshold to be crossed before a finding of exclusivity could be made. It is not necessary to a finding of exclusivity in possession, use and occupation, that the native title claim group should assert a right to bar entry to their country on the basis that it is 'their country'. If control of access to country flows from spiritual necessity because of the harm that 'the country' will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive. The relationship to country is essentially a 'spiritual affair'. …
84 So, for example, a right to care for, maintain and protect an area is capable of being a right or interest in relation to land or waters, even though it does not necessarily bring with it any right that would be recognised: Sampi at [118]-[125].
85 However, it is established that in order to be recognised by the common law of Australia, the laws and customs in question must have a normative content: Yorta Yorta at [38]. That is because only if the rules which together constitute the traditional laws acknowledged and traditional customs observed have a normative content will rights and interests arise: see Yorta Yorta at [42]. A law or custom has normative content if it imposes obligation or confers entitlement: Wongatha at [936]. See also Alyawarr at [75]:
The traditional laws or customs which are the source of the native title rights and interests must have a 'normative content'. They must derive 'from a body of norms or normative system - the body of norms or normative system that existed before sovereignty' (Yorta Yorta at [38]). This does not require fine distinctions to be drawn between legal rules and moral obligations. The interests may arise under both law and custom. There nevertheless must be some kind of 'rules' which have a 'normative content'. Absent such rules there may merely be observable behaviour patterns but no rights or interests in relation to the land.
86 So, for example, in Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1 at [173], Finn J adopted a working definition of 'custom' suited to the distinctive circumstances of that case as 'accepted and expected norms of behaviour, the departure from which attracts social sanction (often disapproval especially by elders)'.
87 It may be that the normative character of the laws and customs can be inferred from the fact that they are consistently observed, but care needs to be taken in that regard. In Ngarla at [283], Bennett J observed that (emphasis in original):
Yorta Yorta does not preclude the Court from drawing inferences as to the existence of a native title right or interest from conduct, including observable patterns of behaviour. If a right is based in the laws and customs of a normative society, whether the right has been exercised or whether the licence exists is a fact to be established. It may be established by inference from observable behaviour. However, care must be taken in relying on such inferences, as a native title right or interest, must have normative content.
A society and a land-holding group are not necessarily the same
88 It is well recognised that a society is not necessarily synonymous with a particular group that holds particular rights and interests under the body of laws and customs observed by the society. In Mabo v State of Queensland (No 2) (1992) 175 CLR 1 at 62, Brennan J said: 'A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands'. It is plain that the relevant society is not necessarily synonymous with a land-holding group and that there may be various groups and individuals within a given society who hold various different kinds and combinations of rights and interests in relation to particular stretches of land. In State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at [239], Beaumont and von Doussa JJ said (and were not overturned on this point in Ward HC):
The State contends that every relevant witness claimed to be either Miriuwung or Gajerrong, and a great majority of those who claimed to be Miriuwung gave evidence that they had a full array of rights only in an estate area. Those witnesses did not claim that other estate areas were their 'country'. To that point, the submission appears to be correct, but it does not follow that there is not now a Miriuwung and Gajerrong community which acknowledges and observes traditional laws and customs under which members of the community enjoy differing arrays of rights within and outside their particular family or estate country.
89 Wilcox, Sackville and Merkel JJ applied distinctions of this kind to the Western Desert in De Rose (No 2) at [38]-[39]:
It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as 'communal', 'group' or 'individual'. The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.
The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a subset of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the subset may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the subset might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the 'group' holding native title rights and interests would have fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.
See also Alyawarr at [81]; Ngarla at [100]-[103].
90 So in this case, it will not be enough for the Maduwongga applicant to establish that KB or any group of her family members held rights and interests in identifiable land in the overlap area, even to the exclusion of all others. That can be consistent with a situation in which they held those rights under the normative system of a wider community that also determined rights and interests in relation to land of a wider extent. The Maduwongga applicant must also establish that any such exclusive rights were held under a normative system distinct from that of the Western Desert.
The approach to be taken to the evidence
91 It is helpful to discuss in general terms the approach to be taken and weight to be given to various kinds of evidence that is before the Court. Save in respect of findings in Wongatha, no party objected to the admissibility of any evidence in the proceeding.
92 The testimony of Aboriginal lay witnesses about systems of belief is of the highest importance in a determination of the evidence of native title: Sampi at [57]. In The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472 at [89], Mansfield J described the relationship between evidence of that kind and expert anthropological evidence as follows (and was not overturned on appeal on this point):
Of course, what is central to the claim is the evidence of the Aboriginal witnesses. As has been expressed elsewhere, anthropological evidence may provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgment and observance of traditional laws, customs and practices: per Lee J in Ward [v State of Western Australia (1998) 159 ALR 483] at first instance at 531. Not only may anthropological evidence observe and record matters relevant to informing the Court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.
93 As Finn J said in Akiba at [500] (relying on Neowarra v State of Western Australia [2003] FCA 1402 at [364]), because the rights and interests of the claimants are those possessed under their traditional laws and customs, they must be looked at from the perspective of the claimants. 'Their descriptions of what is theirs, what belongs to them, what they are entitled to, or are required to, do are for this reason fundamental to the ascertainment of those rights and interests.'
94 As to cross examination of Aboriginal witnesses, in Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150 at [301] Sackville J said:
Generally speaking, if particular features of the evidence given by indigenous (or other) witnesses have not been challenged in cross-examination, there need to be cogent reasons for rejecting that evidence. An example might be where two Aboriginal witnesses have given contradictory evidence in relation to the same issue, in which case it may be necessary to choose between the two versions. However, the question still remains as to whether the evidence adduced by the applicants is sufficient to establish the essential elements of their case.
Note however this is said to be subject to the rule in Browne v Dunn (1893) 6 R 67.
Written records including ethnographic materials and expert evidence
95 In this matter much of the evidence, and much of the time at hearing, was directed to the interpretation by the expert witnesses of ethnographic data gathered in the first half of the 20th century. At first blush it might be thought that the Court is able to read and understand that evidence and draw its own conclusions about it, so that expert evidence about those materials is redundant. In my view the first part of that is true, but the conclusion about redundancy does not follow. It is doubtless the case that anthropologists and ethnohistorians can draw on deep wells of experience and learning to help give the Court the context it needs to make inferences and judgments about the inherent probabilities of contested matters based on what can sometimes be a sketchy or ambiguous primary record. So in Drill at [500], Mortimer J accepted submissions that 'expert anthropologists who give evidence in a proceeding such as this can assist the Court not only in terms of their own research and opinions, but in terms of analysing earlier ethnographic, historical and anthropological records'.
96 However the Court needs to be cautious about accepting written records as inherently authoritative. In Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [299] Mortimer J observed:
Courts must also consider whether 'the historical record or account of observers at the time, whether trained or untrained, is not invalidated by a particular preconception, bias or prejudice of the author': Yarmirr 101 FCR 171; [1999] FCA 1668 at [351]. For example, a former judge of this Court, writing extra-judicially, has observed that certain types of genealogical records may be unreliable, such as those kept by missionaries whose observations are framed by their own individual morality. He goes on to warn that:
Courts must be wary of 'text positivism', the notion that, if a written record is constructed as accurately as possible, the author's role dissolves into that of an honest broker, passing on the substance of things with only the most trivial of transaction costs.
(Gray, Peter R A, 'Saying It Like It Is: Oral Traditions, Legal Systems and Records' (1998) 26 Archives and Manuscripts 248, p 259.)
97 And, as Mortimer J said of early anthropologists and ethnographers in Narrier at [493]:
Their work was undertaken in a society where Aboriginal people were treated wholly unequally: they were not entitled to vote or participate on an equal footing in Australian democracy at any level of government, they were susceptible to forcible removal from their places of residence, and they were required to hold 'passes' to move about in certain regions. If they were part of the workforce at all, it was in subjugated positions working for non-Indigenous people and generally being paid little or no wages, and certainly not being paid equal wages for equal work with non-Aboriginal people. These matters are now well recognised. Acknowledging those matters does not involve attributing any lack of good intentions to those researchers, or diminishing their work to nothingness. However, nor should their work be elevated unduly because it is from an earlier time. The contemporaneity or historic nature of the material is not in and of itself an indicator of reliability, accuracy or completeness. In contrast, the way it might be used by experts who give evidence in the case, and assessed as reliable or accurate, may be a different matter.
98 In Drill at [503] Mortimer J summarised the proper approach as follows:
The particular ramifications of an application of these approaches to the resolution of the separate questions appears to me to be as follows:
(a) To give a proper place to the significance of an oral tradition and to the lived direct experience of people in relation to, first, the land and waters concerned, and second, who were the earlier generations of Aboriginal people connected to that land and waters, the evidence of living, senior Aboriginal people warrants serious consideration, subject to particular submissions which affect reliability of particular aspects of their evidence;
(b) Records of accounts given by now deceased, senior Aboriginal people should be treated in the same way, while recognising it is not able to be tested and this may affect the weight to be given to it;
(c) Early ethnographic, anthropological or historical records should be assessed for reliability taking into account the matters to which I have referred above, without their probative value being enhanced simply because they are written records, or because they were written by non-Aboriginal people or 'experts';
(d) Whenever the sources in (c) are to be used, they must be used in a way which is rational, and logical, and the probative basis for any inferences to be drawn is apparent. Speculation and guesswork from these sources is of no probative value; and
(e) Expert anthropological opinion about records in (c) may be of considerable assistance and may be given more weight because that expert opinion is available to be tested in this proceeding.
With respect, that is the approach that I will adopt in this proceeding.
99 In native title cases inferences can be drawn that a situation that exists at a particular time also existed at an earlier time. That depends, however, on whether the probabilities of the case favour the inference and whether intervening circumstances have occurred: Mason v Tritton (1994) 34 NSWLR 572 at 588 (Kirby P). There is no obvious reason why this cannot be used to prove the existence of traditional laws and customs as at the date of sovereignty (or effective sovereignty) but that does not mean that mere assertion is sufficient to establish the continuity of tradition back to the assertion of sovereignty. In Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457 at [201] Selway J, relying on principles adapted to proof of custom 'from time immemorial' in the common law, held that:
where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had 'always' been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.
100 As Mortimer J observed in Narrier at [389]:
In any native title case, there will be an important role for inferential reasoning, because of the passage of time between the circumstances at or before sovereignty, and the circumstances prevailing at the time the Court must determine whether the requirements of s 223 of the NT Act are satisfied.
101 In particular where ethnographic material is not comprehensive or extensive, the Court must not lose sight of the difficulties facing claimants who seek to gather such material to support their application for a determination of native title. In those circumstances, rules of evidence specific to native title matters, such as s 82 of the NTA, 'may be utilized, where appropriate, to ensure that applicants are not required to meet an evidentiary burden that is, in the circumstances that are unique to every native title application, impossible to meet': De Rose v State of South Australia [2002] FCA 1342 at [370] (O'Loughlin J, not overturned on this point on appeal). No party in this proceeding took issue with the admissibility of ethnographic records dating from the first half of the 20th century. It is necessary to bear in mind, however, that native title litigation has consequences in rem that can extend beyond the parties.
102 The Court heard lay evidence over the course of five days in December 2020. One of those days was spent visiting sites on country and hearing brief evidence about those sites from Mrs Strickland and Mrs Nudding, and from members of the NP claim group, Hector O'Loughlin and Elvis Stokes. The sites visited at which evidence was heard were Hobble Gap, a gap between the hills of the Edjudina Range, which forms the north eastern border of the Maduwongga claim area, and ruins at the old Edjudina Homestead. There were three further days of sitting at Kalgoorlie, and another morning in which the Court in Perth heard evidence by video from two witnesses in different locations.
103 The following contains a brief account of most of the witnesses, based on uncontroversial evidence given. I will also describe my general impression of Mrs Strickland and Mrs Nudding as witnesses, as they are the two claim group members who constitute the Maduwongga applicant and clearly the driving force behind the claim. They were the only lay witnesses cross examined at any length. I will also give my impression of the evidence given by Stevie Sinclair, who was called by the Maduwongga applicant, where senior counsel for that party sought to adduce the key part of his witness statement by examination in chief. The impressions set out here were written in Kalgoorlie shortly after hearing the evidence (but my commentary at the end about three specific matters of concern was added later).
104 It is neither necessary nor possible to describe my general impression of the other lay witnesses, namely Teresa Stokes and Arron Newland, who were called by the Maduwongga applicant, and Elvis Stokes, Hector O'Loughlin, Cheryl Cotterill and Ivan Forrest, who were called by the NP respondent. Their evidence in chief was adduced largely by way of the tender of witness statements and they were not examined or cross examined extensively. As a result, most of their evidence was unchallenged, and I did not get the opportunity to observe them as witnesses for any extended period. Save in relation to a few points on which they were cross examined, I have no reason to think that the evidence of those witnesses was given other than truthfully, and I find that it was. Ms Stokes and Mr Arron Newland gave very brief evidence and it is not necessary to give any biographical details at this point. I will, however, give brief biographies of the four witnesses called by the NP respondent as well as Dora Cotterill, whose evidence was, by agreement, adduced as hearsay from her daughter-in-law Cheryl Cotterill.
105 Mrs Nudding is one of the two sisters who comprise the Maduwongga applicant. She goes by the name of Joyce. I will give some biographical details for her below in Section VII, along with biographies of other people claimed to be part of the Maduwongga group (past and present). She was 72 years old when she gave her evidence.
106 Mrs Nudding presented as an acute and strong willed witness, with a wealth of lived experience to back her evidence. She did not appear uncomfortable in the (metaphorical) witness box, even during the several hours in which she was examined and cross examined in the relatively formal setting of the Kalgoorlie Town Hall. For the most part, she listened carefully to the questions and confined herself to answering them, although there were a few occasions where she offered extensive information gratuitously. It seemed, however, that many of the accounts of traditional laws and customs she gave lacked any specificity that might persuade one that she was discussing any uniquely Maduwongga traditions. When she was asked about apparent inconsistencies between her present evidence and the evidence she gave in Wongatha, her responses were unconvincing.
107 Other than these observations, it is difficult to generalise about Mrs Nudding's evidence. On certain occasions I formed the impression that she was prepared to be forthcoming and gave her answers without undue calculation. Sometimes her responses appropriately acknowledged uncertainty in relation to things she was asked about, because she could not remember or did not know. On several occasions she appropriately acknowledged that matters being put to her by the cross examiner were possibly true, even though they potentially undermined the Maduwongga claim. An example was how she said, more than once, that Aboriginal people from outside the claim area came into the area to hold ceremonies. In assessing those responses, I was conscious of the tendency of lay witnesses in matters such as this to express gratuitous concurrence with their interlocutors, but I am confident that Mrs Nudding was not inclined to do that.
108 However, when it came to certain basic matters that were put to her, she retreated to emphatic assertions of belief, rather than giving any satisfactory explanation of the matters. On at least one occasion, Mrs Nudding's evidence was both emphatic and demonstrably wrong, namely when she denied that Albert Newland, who the respondents say was Arthur Newland's son and so KB's grandson, had ever been included in a native title claim made by the Maduwongga.
109 For the most part I consider that Mrs Nudding was doing her best to tell the Court the truth. But as with Mrs Strickland, her view of the truth on certain key points, such as the existence and composition of a distinct Maduwongga land-holding group, seemed to have been influenced by her own personal interests. As will be specifically explained below, I do not consider that Mrs Nudding's evidence on such matters was reliable.
110 There are three specific matters which exacerbate my doubts about the reliability of Mrs Nudding's evidence in that regard. First, as I have indicated the Maduwongga applicant effectively concedes that the case it put in Wongatha - that the Maduwongga observed Western Desert laws and customs - was very different to the case it puts now. It is not a sufficient answer to put that down to a difference in expert witnesses. Such an about-face cannot but impact adversely on the credibility of the proponents of the case in Wongatha who are also the proponents of the case now, namely Mrs Nudding and Mrs Strickland. Second, it will be explained in Section VII that by the end of her evidence, Dr Mathieu had all but discarded the notion that there was a group occupying the claim area that called themselves 'Maduwongga', or were called that name by anyone else, at least before 1994 when native title claims began to be made. And yet Mrs Nudding's and Mrs Strickland's evidence was replete with the use of the term, including supposedly by previous generations of 'Maduwongga' people before native title. Third, as will also be seen, the Maduwongga applicant ultimately discarded the claim made in Mrs Nudding's and Mrs Strickland's evidence that there was a Maduwongga language that was unintelligible to WDL speakers. None of this enhances the reliability of Mrs Nudding's evidence.
111 Mrs Strickland is the other person named as the Maduwongga applicant. As with her sister, Mrs Nudding, biographical details for her appear further below in Section VII. She was nearly 71 at the time she gave evidence in this proceeding, so a little less than two years younger than her sister.
112 Mrs Strickland presented as an intelligent and determined person, with a clear view of her interests and how to preserve and advance them. Like Mrs Nudding, she was not at all uncomfortable giving evidence, even in a relatively formal setting. With one exception towards the end of her evidence, which it is not necessary to describe, she was calm and unflappable under cross examination. She listened carefully to the questions, made sure she understood them before answering, and for the most part confined herself to responding to the questions asked.
113 Mrs Strickland was firm about certain things, for example when she was pressed on the paternity of Albert Newland. Sometimes - and Albert Newland's role in previous Maduwongga claims is a case in point - her firmness appeared to stem from strong views about whether individuals had acted appropriately or not, rather than necessarily because of clear first-hand knowledge of the truth of the relevant matters. On other matters she did not adhere to her evidence in any implausibly categorical way. She conceded that propositions contrary to her case were possibly correct, when that was appropriate. If she did not know the answer to a question, she said so. This suggests that often Mrs Strickland was doing her best to tell the truth.
114 But this also served to sharpen what I consider be a marked contrast between that approach, and her evidence about other matters. What I am referring to is this: Mrs Strickland had, for example, what appeared to be a compendious and detailed knowledge about the life histories of her very extended family. She was able to give details of who was descended from whom and married to whom without hesitation. But when it came to matters such as the observance and content of traditional laws and customs, or similarities in or differences between the languages spoken by the Maduwongga and by other peoples, there was a palpable lack of specificity and detail. Her answers to questions about those matters were often 'I don't know'.
115 As a result, on the infrequent occasions when she did speak clearly about one of those subjects, it gave the impression that the clarity existed in her own mind only, rather than in anything she had been told by a custodian of any of the relevant traditions, or had otherwise observed. One example was an assertion, inconsistent with the Maduwongga SOFAC, that under Maduwongga laws and customs a person can acquire native title rights and interests through biological descent only and not through adoption. Another such example is her evidence that KB and Arthur Newland did not observe any sectional system regulating intermarriage between different groups.
116 Another general comment to be made about Mrs Strickland's evidence is that she was, unsurprisingly, cross examined about several respects in which her evidence in this proceeding differed from evidence she gave in Wongatha. In general, both her attempts to explain the discrepancies or her profession, on other occasions, of ignorance about why she gave that earlier evidence, were unconvincing. They did not enhance her credibility overall. Also, the three specific matters I have mentioned in connection with Mrs Nudding's credibility above apply equally to Mrs Strickland.
117 I make no finding that in this proceeding Mrs Strickland gave evidence that she knew to be false. Some of her evidence I accept because it seemed to involve no attempt to have it slanted in favour of the claim. But it will become clear that I did not accept her evidence on many important points. I consider that is likely to be the product of her having convinced herself that her view of the world - a world containing a Maduwongga people who were separate and distinct from the peoples of the Western Desert - was the correct one, rather than deliberate falsehood.
Daniel Steven (Stevie) Sinclair
118 Stevie Sinclair, whose full name is Daniel Steven Sinclair, is an initiated Law man and elder of the Pilki People. Mr Sinclair described Pilki country as being in the Spinifex region of the Western Desert. The Pilki people are traditionally associated with Tjutjuntjarra which, as has been mentioned, is about 550 km north and east of Kalgoorlie, on the edge of the Great Victoria Desert Nature Reserve. The Maduwongga applicant appeared to acknowledge that this made Mr Sinclair a Western Desert man, as in submissions it acknowledged that the identification of him by the NP respondent as a senior wati with responsibilities in the claim area 'may qualify him to rights within the Western Desert normative system, but does not qualify him to rights within the Maduwongga normative system': (MOS para 35).
119 Mr Sinclair's connection to Pilki country is through his grandfather, Roy Sinclair, who spoke for Pilki country. Mr Sinclair's father, Don Sinclair, was also a Law man who spoke for Pilki country. Mr Sinclair was taught where he came from through stories which were passed on to him by his grandfather and his father and other elders who have since passed away.
120 Mr Sinclair was born in Kalgoorlie, and grew up first at Cundeelee Mission, and later in Coonana, in a Tjutjuntjarra community. He grew up with members of the Nudding family in Cundeelee. He moved to Kalgoorlie in his teens and went to school in Coolgardie in years 11 and 12. He now lives in Menzies.
121 Mr Sinclair was initiated in Tjutjuntjarra in 1991. Since then he has met from time to time with the Pilki elders and other senior wati, who provide him with 'knowledge and instructions about how to carry on their history'.
122 Mr Sinclair gave evidence orally including about Mrs Strickland and Mrs Nudding and their connection to country around Edjudina and Hobble Gap. He impressed me as a witness with a deep knowledge of traditional laws and customs, who gave truthful answers to the questions he was asked without any wish to pursue a particular agenda.
123 Hector O'Loughlin is an NP claim group member and was a Wongatha claim group member. He was approximately 82 years old at the time he gave evidence in this proceeding, as he was born in 1939. He lives in Boulder. He is retired now, but before that he worked on the mines, on the main roads, and on the railways. He identifies himself as Wangkayi.
124 Ivan Forrest is also an NP claim group member and was a Wongatha claim group member and was a witness in the Wongatha matter. He was 72 years old at the time he gave evidence in this proceeding, as he was born in 1948. He lives between Coolgardie, Kookynie and Kalgoorlie, although he gave an 'official address' in Tom Price. He identifies as a Wangkayi person and is a wati.
Cheryl Cotterill and Dora Cotterill
125 Cheryl Cotterill is also a NP claim group member and identifies as Wangkayi. She was born in 1955 and was 65 years old at the time she gave evidence. She lives in Leonora. She was an enrolled nurse, but she retired in 2020.
126 Cheryl Cotterill gave first hand hearsay evidence about her mother in law, Dora Cotterill including about her connection with the overlap area including country around Edjudina. According to Cheryl, Dora is the oldest member of the Mt Margaret Wangkayi community and is very well respected and seen as a knowledge holder. She is a half-sister to Eva Quinn (they share the same father). Dora is very elderly, having been born at Mulgabbie (within the overlap area, south of Edjudina) around 1926. As a young girl she lived with KB around Edjudina. She is seemingly the only person still living who knew KB personally.
127 Mr Stokes lives in Boulder. He gave his age as 'going 61' at the time he gave his evidence. He is a court officer with the Aboriginal Legal Service in Kalgoorlie. Mr Stokes is an NP claim group member. He was a Wongatha claim group member and a witness in Wongatha. At that time he was an environmental ranger with Anaconda Nickel. He identifies himself as a Wangkayi person. He has some familial connection with the overlap area, in particular as his father's mother's sister, with whom Mr Stokes grew up, was from Mulgabbie.
128 The Court heard from two expert witnesses, Dr Christine Mathieu, whom the Maduwongga applicant called, and Dr John Morton, who was called by the NP respondent. Four reports of Dr Mathieu were tendered, and two of Dr Morton, as well as a joint conference of experts report dated 19 February 2021 (Expert Conference Report). Their oral evidence took three days, one of which was mostly taken up with a concurrent expert evidence session, and the rest largely in cross examination.
129 The four expert reports of Dr Mathieu that were provided in this proceeding were:
(a) a long report, on its cover page labelled as dating from August 2016 and revised in 2019, which was filed on 8 November 2019, already defined as Mathieu I;
(b) a Supplementary Report dated March 2020, which was filed on 11 March 2020, already defined as Mathieu II.
(c) a Supplementary Report dated October 2020, which was filed on 9 November 2020 (Mathieu III); and
(d) a Further Supplementary Report, dated 23 February 2021, which was handed up as an exhibit on 3 March 2021 (Mathieu IV).
130 An expert report of Dr Morton in the NP claim, signed on 1 April 2019, was filed in this proceeding on 30 November 2020 (Morton I). Dr Morton also provided a report in relation to the separate question, signed and filed on 7 April 2020 (Morton II).
131 That evidence unfolded in the following manner. Dr Mathieu's first report (Mathieu I) was originally prepared for the purposes of the National Native Tribunal registration test. Her first Supplementary Report (Mathieu II) was prepared for the purpose of answering the separate question. In part it responded to Morton I, even though it had not been filed in this proceeding by that time. After those reports were filed, Dr Morton's report in the separate question was filed (Morton II). Dr Mathieu's second Supplementary Report (Mathieu III) focuses on two issues that Dr Mathieu identified as arising from Morton II and was filed on 9 November 2020. Dr Morton's report in the NP claim (Morton I) was filed in this proceeding later in November. Dr Mathieu's Further Supplementary Report (Mathieu IV), handed up during the hearing, seeks to correct errors in her previous reports, to bring attention to a further secondary source, and to address a particular primary data record of which Dr Mathieu became aware following the conference of experts convened 16-18 February 2021.
132 As will be seen, this is a case where the outcome turns on the extent to which the Court accepts the views of the respective experts. The substantive content of their respective reports and oral evidence will be analysed below; here I give an overview of their respective expertise, and the impression I formed of the evidence of each of them. I recorded those impressions within a few days of hearing the expert evidence.
133 Dr Mathieu was called by the Maduwongga applicant to give evidence in support of its position that during KB's time, the Maduwongga were a distinct land-holding group. Dr Mathieu's opinions and the materials on which they are based will be described below, but in broad terms she conducted a close examination of the data that Tindale collected in 1939 and 1966, as well as records and manuscripts of Bates and other early explorers an ethnographers. She also placed some reliance on the work of Professor Berndt.
134 Dr Mathieu had a detailed recollection of the primary materials she had examined. I do not doubt the hard and earnest work she has put into the matter or the conviction with which she holds her views. But I did not find her to be a satisfactory witness. There are three overarching reasons for that.
135 The first reason concerns the nature of her experience and expertise. Dr Mathieu's academic career does not place her in the mainstream of Australian Aboriginal anthropology. Her PhD is in Asian Studies (received in 1996), her thesis having been an anthropological history of China's ethnic frontier on the Yunnan-Tibet borderland which she emphasised in cross examination was ethnohistorical. She also has a Bachelor of Arts from the University of Western Australia with a double major in anthropology and French studies. She took honours in anthropology, with a thesis on the Paris Commune of 1871. She currently teaches French and anthropology at an experimental high school in Victoria. She has not published any books or journal articles (peer reviewed or otherwise) on Australian Aboriginal anthropology, or presented any academic conference papers on that subject. Her only academic activity in that field was to complete undergraduate units at university and to teach a course on the subject at St Mary's College, California in 2000 to 2003.
136 Between 2006 and 2019 Dr Mathieu did work on a contract basis to perform Aboriginal cultural heritage surveys for Aboriginal and corporate clients. She also worked on an intermittent contract basis between 1994 and 1997 as a consultant anthropologist where she performed research in kinship and genealogies, ritual and mythical relationships to territory and investigation of Aboriginal law. Her evidence was that while performing the heritage surveys, including in the Goldfields, she learned 'a few things' when she 'was on the ground' (ts 476). But her role was to perform the fieldwork - others wrote the reports.
137 Despite that experience in the field, Dr Mathieu was very clear that she considers herself an ethnohistorian rather than a field anthropologist. She explained that the ethnohistorical approach is to take the widest possible range of historical material, not just archival records and other documents but art, literature, linguistics and other kinds of sources, with an interest in reconstructing, not so much historical events, but a type of social system and a society. In her first report she described ethnohistory as (Mathieu I p 7):
an inter-disciplinary approach to indigenous history and culture. Combining anthropology, history, archaeology, linguistics, geography, art and literature, the ethnohistorical method yields evidence-based cultural and historical reconstructions which are testable by data prediction and data cross-referencing, and which can be benchmarked against anthropological, archaeological, linguistic and historical precedent. The method proceeds from the comparative analysis of data obtained from oral history, art, mythology, linguistics, material culture, environmental information, and primary textual sources.
138 Part of this process, as she described it, was to use the cross-referencing of two or more pieces of evidence in order to 'make your imaginative leaps very short' (ts 472, 480).
139 Dr Mathieu has not acted as an expert witness in relation to any native title claims other than the Maduwongga claim (including, but not confined to, the present proceeding). She has written a number of reports on that claim, starting with one produced in 2012.
140 None of this is to say that the particular kind of expertise more conventionally found in expert witnesses in native title claims is the only kind that can provide a foundation for admissible and valuable evidence in such claims. Those claims always require findings to be made about the state of a society in the past, and doubtless the ethnohistorical method can contribute to those findings. To an appreciable extent, the focus of the separate question on the position of KB, someone who was alive in the late 19th century and the first half of the 20th century, and about whom the surviving information is sparse, calls out for the application of the ethnohistorical method. While Dr Mathieu was cross examined on her expertise, her reports were admitted into evidence by consent and no party made a submission that her expertise did not qualify her to give admissible opinion evidence on the subjects canvassed in her report and testimony.
141 Nor is it to discount that, frequently, the perspectives of those outside the mainstream of a particular discipline that commonly supplies expert evidence in certain kinds of matters can be valuable, precisely because they are outside the mainstream means they can provide fresh perspectives. The risk that consensus among a relatively small group of experts who practise in the same area can ossify into dogma must not be overlooked. By the same token, there will rarely if ever be complete consensus on every question in every aspect of a field; some matters may be hotly contested by respected experts in the same field.
142 All that said, I am concerned that Dr Mathieu's place outside the mainstream of expertise in Australian Aboriginal anthropology meant that she lacked a thoroughgoing grounding in the theoretical frameworks which have come to be accepted in the field and that this, along with the second reason I am about to mention, meant that her interpretations of the data were idiosyncratic ones which were not informed by a reliable body of knowledge: see e.g. HG v The Queen (1999) 197 CLR 414 at [58]. She also lacked extensive field experience which would have allowed her views to be tempered by a broader cultural context on the ground (albeit with allowances for the fact that it would be a contemporary and not historical context). She accepted a characterisation of what she did as including to bring anthropological experience to bear on a primary source to 'read between the lines' (ts 481). But I am not satisfied that she had enough anthropological experience in Aboriginal societies in Australia to make the result reliable. This lack of experience also, in my view, meant that her focus on reconstructing a particular Maduwongga society caused her to lose sight of similarities between the characteristics of that asserted society and those of other groups in the wider Goldfields and south-western Western Desert areas.
143 This assessment of Dr Mathieu's field of expertise caused me to approach her evidence with caution. Specific examples where her views seemed inconsistent with the main body of anthropological opinion will be given when the evidence is considered in a substantive way below.
144 The second reason I found Dr Mathieu's evidence unsatisfactory is that she did not present as a disinterested, objective witness who understood that her first duty was to the Court. Rather, she was partial and partisan. By the time this matter was heard, she had worked with the Maduwongga for over eight years. It is the only native title claim she has worked on. At times she seemed to have a close emotional identification with the Maduwongga claimants, for example (Mathieu I para 363):
The Claimants' history is irremediably tied to the history of the Kalgoorlie gold rushes. It is the history of the gold rushes that explains the small number of persons in the Claimants' group; that makes sense of the evolution of Maduwongga society, and of the resilience of spirit that preserved and drove the Maduwongga through the several decades of deprivation imposed on them through institutionalised racial segregation and discrimination. And it is also this history that explains the determination which has spurred the Claimants to pursue their Native Title Claim for now over twenty years.
145 Under cross examination Dr Mathieu quickly slipped into a defensive manner, sometimes an agitated one, despite calm and courteous cross examiners who made no attempt at provocation. All too frequently she shook off the reins of the cross examination to embark on lengthy, digressive and discursive passages of gratuitous explanation and advocacy. Many times, she pointedly refused to answer questions which called for a simple yes or no answer, instead treating them as springboards for the provision of overwhelming amounts of detail. Despite the general competence with which the cross examination was conducted, it was necessary for me to intervene several times to bring Dr Mathieu back to the topic at hand and to get her to answer the questions she had been actually asked.
146 Dr Mathieu was also prone to defending positions well after they had been pushed to the point of implausibility. She readily and gratuitously slipped into advocacy intended to discredit Dr Morton's views. She was reluctant to concede that different views were even open, or reasonable, let alone correct. Contrary views were not just incorrect, but 'quite preposterous' (ts 564). For example, she refused to accept that the data said to support her connubial model was open to any interpretation other than that model. But as will be seen, the meaning (if any) of the data was contestable at the very least, so that Dr Mathieu's intransigence was unreasonable. This hyperbole also appeared in her written reports, for example in Mathieu I para 265 where she said that Tindale's field notes 'offer irrefutable historical proof that on 6 May 1939, in Southern Cross, and again on 16 May 1939 in Mt Margaret, persons identified themselves as belonging to a tribal people named Maduwongga'. As will be seen, the proof is far from irrefutable, and under cross examination Dr Mathieu herself retracted the second part of this claim, about the meeting on 16 May 1939. Similarly, one of Tindale's genealogy sheets is said to provide 'irrefutable proof' that the Maduwongga claimants' predecessors occupied the claim area before European settlement (Mathieu I para 408). As will be seen, this too is putting it much too highly.
147 There were also more specific reasons to doubt the reliability of what Dr Mathieu said. In one of her reports, she selectively misquoted, twice, a passage from an important piece of evidence, on KB's data card compiled as part of Professor Tindale's ethnographic expedition of 1939. She omitted the sentence 'We came from E' which, as will become apparent, is important. Another example, which will be described in more detail below in the course of substantive consideration of the evidence, was that she failed to acknowledge until cross examination the highly unreliable way in which Bates gathered various lists of words in Aboriginal languages on which Dr Mathieu relied.
148 Another example is that, while her views relied heavily on aspects of Professor Tindale's work, she was quite ready to treat that work as unreliable when it contradicted the Maduwongga position. And despite her lack of any publication record in Australian Aboriginal anthropology, she was strikingly prepared to dismiss, summarily, widely held or consensus views among people who had worked and published widely in the area. The debate between Professor Tindale and Professor Berndt about their different theories of tribal organisation was 'not something that interests me' (ts 482). Another example is:
MR RANSON: … So do you agree with Dr McDonald and Professor Sutton that this Tindale's notion of tribes is something that's a post-classical development rather than something which is relevant to classical Aboriginal societies?
DR MATHIEU: No, I actually think it's the other way round. And I think anthropologists make terrible historians, because they assume that what they see is what has always been. …
149 The overall impression I obtained was that, despite her protestations to the contrary, Dr Mathieu was trying to fit her data into an interpretation which supported the Maduwongga claim. She did not seem conscious that her ultimate duty was to assist the Court. Of course, my examination of Dr Mathieu's evidence does not end with these broad impressions; I state them here in order to provide context for the specific findings I make below.
150 The third reason I found Dr Mathieu's evidence unsatisfactory was that it was not accompanied by any formal brief because, it seems, she did not receive one. She was not asked any specific questions and said that her brief for her first report, Mathieu I, was 'over the phone' (ts 470). Another reason to approach Mathieu I with caution is that, according to it, it was prepared for presentation to the 'Native Title Registration Tribunal' (Mathieu I p 5). Indeed, Dr Mathieu notes that Mathieu II 'corrects, expands and altogether supersedes' all previous documents, including those presented to the 'Native Title Registration Tribunal'.
151 Another reason to approach Mathieu I with caution is that much of it appears to have been prepared in response to a report that Dr Edward McDonald provided in Wongatha, which was not in evidence in this proceeding. These doubts serve to reinforce the importance of knowing precisely the basis on which an expert report has been commissioned. Although Dr Mathieu does provide a list of questions she was asked to address at the beginning of Mathieu I, it does not seem to have been drawn from a formal brief requesting answers to those questions. It appears that her work was the result of an iterative process of working up reports to support the Maduwongga claim, including more recently by way of response to Dr Morton's reports. And although in Mathieu II she says that she has answered the separate question by reference to three subsidiary questions which she lists, it is not clear where those questions come from; as far as one can tell Dr Mathieu decided for herself that the separate question should be framed that way.
152 This lack of transparency in how Dr Mathieu's reports came to be produced undermines confidence in their reliability and resonates with the broader concerns about her partiality expressed above. While her first report identifies some statements she was supposedly asked to address, her supplementary reports do not comply with r 23.13(1)(d) of the Federal Court Rules 2011 (Cth), which requires an expert report to identify the questions that the expert was asked to address, and also do not comply with similar requirements in the Court's Expert Evidence Practice Note (GPN-EXPT). The lack of any letter of instruction or other detail of the instructions reduces the weight to be given to Dr Mathieu's evidence: see Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 at [319]-[322], [325] (Katzmann J). That is especially so here where, as will be developed below, I consider that Dr Mathieu was looking for a 'socio-linguistic group', rather than addressing open ended questions as to whether such a group existed during KB's time and, if it did, whether it observed and acknowledged a normative system of laws and customs giving rise to rights and interests in relation to land and waters distinct from that of the Western Desert.
153 Dr Morton is an anthropologist called by the NP respondent. His anthropological expertise is deep and wide, starting in 1974 (after he obtained a Bachelor of Arts with Honours majoring in Geography from the University of Sussex in 1973). In 1975 Dr Morton obtained a Diploma in Social Anthropology from the University of Oxford and in 1979 a postgraduate degree known as Master of Letters, also in Social Anthropology and also from Oxford. In 1986 he obtained a PhD in Social Anthropology from the Australian National University. His PhD thesis was concerned with Central Australian Aboriginal people. His teaching experience from 1981 to 2011 had an emphasis on positions and courses concerning Aboriginal and other indigenous studies, although he has also taught religious studies and general anthropology. That career changed in 2011 when Dr Morton became an independent consultant anthropologist working principally in native title cases, a role he continues to fulfil. He did also perform some occasional teaching in native title anthropology in 2013 and 2014. From 1988 to the time of hearing Dr Morton has been a member of the Australian Institute of Aboriginal and Torres Strait Islander Studies. From 1990 to 1992 he was a member of the Australian Anthropological Society and since 1992 he has been a Fellow of that society, including time as Vice-President from 2000-2001. Since 2000 he has been a Research Associate of Museum Victoria and since 2011 he has been an Associate Fellow, Anthropology in the School of Social Sciences of La Trobe University.
154 From 1976 to 2021 Dr Morton has written or edited a large number of books, chapters in books, journal articles, encyclopaedia entries and brief commentaries, and unpublished conference papers, a bulk of which have concerned the anthropology of Aboriginal Australia.
155 From 1981 Dr Morton has performed field work with Australian Aboriginal communities in the Northern Territory, South Australia, Victoria, New South Wales, Queensland and Western Australia. During this time he has worked principally with Arrernte people associated with Alice Springs and other areas. He has also worked with Bandjalang people from the Coraki area, Gunai/Kurnai people of Gippsland, Mandandanji and Gomeroi people in south-east Queensland, Kariyarra people in the Pilbara, Wongatha people in the Goldfields and Yamatji people from the mid-west of Western Australia. He has consulted on some 24 native title proceedings. He conducted over 100 days of fieldwork with the NP claim group members and met the Maduwongga claim group members on three occasions. The list of reports he has prepared for native title proceedings, as well as land claim, cultural heritage or other consultancies, alone runs for nine pages.
156 The Court's assessment of expert evidence does not resolve to a crude contest of curricula vitae. But it is impossible to ignore the disparity between Dr Morton's experience in the anthropology of Aboriginal Australia and that of Dr Mathieu. I have already commented in detail on the deficiencies in her experience in so far as she is giving expert evidence in a native title case in Australia. Inevitably, the disparity is a reason why I am inclined to put more weight on Dr Morton's evidence where it is inconsistent with that of Dr Mathieu. I have in particular commented on the role that anthropological expertise can have to assist the Court to interpret primary ethnographic materials such as the genealogies and journals of Professor Tindale. Where Dr Morton's evidence was enlisted for that purpose, I was confident that it was based on deep expertise.
157 Nothing in Dr Morton's demeanour and approach to giving oral evidence detracted from that. Unlike Dr Mathieu, he presented as a calm, measured witness throughout, with a firm grasp of the limitations of his role.
158 Although, for the present inquiry, the existence of a distinct normative system is the key determinant of the existence of a Maduwongga society, it is convenient to commence with a different focus. This section seeks to answer the simple question: if there was a Maduwongga group, who were they? (I will tend to use the term 'group' at this stage because it is more neutral and less loaded than alternatives such as society, community or tribe.) It is convenient to start that way because, before one can talk about whether a group of people acknowledge and observe a distinct group of laws and customs giving them rights to an identified area of land, one needs to identify what group is being talked about. So this section of the judgment looks at basic evidence as to the nomination and description of the Maduwongga group, both internal and external to that group, including the elementary question of the people, deceased and living, who are said to be in it. In the course of doing that, it will focus on issues about KB's biography that were the subject of a substantial amount of evidence and submissions.
159 In the end, as is said in Yorta Yorta at [49], laws and customs do not exist in a vacuum. If there was no group of persons comprised of the ancestors of the Maduwongga claim group which was thought of or spoken of (internally or externally) as a distinct group, that would make it less likely that there is a group of persons that acknowledge and observe a distinct body of laws and customs. Conversely, if there was such a distinct group, that increases the likelihood that they observed a distinct normative system of traditional laws and customs. The discussion of Sampi above shows, however, that this is far from the end of the inquiry. Also, it is important to bear in mind that the nature of the evidence, and the nature of the culture of the Aboriginal peoples with whom we are concerned, means that it is dangerous to insist on sharp distinctions between the field of laws and customs and the fields of other cultural phenomena such as language and ritual.
160 It is convenient to commence with a brief description of Norman Tindale's identification of the Maduwongga as a tribe (his favoured term) that existed, distinct from its neighbours, in KB's time. As will be described in detail below, it seems that the term was first connected with KB in genealogical notes and data cards that Tindale and others prepared when speaking to KB and others in May 1939. That includes what seems to be an accurate note of KB saying 'I am 'Madu wongga'.
161 It is as well to say at the outset why this matters, that is, why KB's apparent use of the words 'madu wongga' (it appears that they are two words) is relevant in this case. Most straightforwardly, it is because Tindale interpreted those words as the name of a tribe, the territory of which he mapped, with the territory so mapped corresponding closely to the current Maduwongga claim area. If Tindale's interpretation of what KB said was correct, that would support the Maduwongga case on the separate question. While it would not go directly to the existence of a distinct body of laws and customs, it would point to the existence of distinct social group in broader sense.
162 Nevertheless, it will be seen that Dr Mathieu ended up minimising the importance, to her evidence, of what KB said about 'madu wongga'. That was on the basis that Dr Mathieu has, in her view, located a distinct 'socio-linguistic group' in occupation of the claim area which she identifies with KB and therefore with the ancestors of the current claim group members. That being so, she considers that it does not particularly matter what KB meant when she used the words. The Maduwongga applicant made a closing submission to a similar effect; even if 'Maduwongga' was only affixed to a distinct society in the area by and after Tindale, it would still be a distinct society.
163 That is correct, as far as it goes. If Dr Mathieu's evidence does establish the existence of a distinct group that included the ancestors of the current claim group members, that would give substantial support to the Maduwongga applicant's case. As Dr Mathieu says (in evidence that is set out further below - see [849]), it is possible that 'Maduwongga' people did not have a name for themselves in KB's time, and so did not use that name for their tribe.
164 But it does not follow that KB's use of the words 'madu wongga' is irrelevant. That is for two reasons. First, as will be detailed shortly, the evidence of Mrs Nudding and Mrs Strickland was replete with references to the term 'Maduwongga', including their identity as 'senior Maduwongga people', 'Maduwongga country', their 'Maduwongga heritage' and 'Maduwongga traditional laws and customs, language and culture'. Their evidence does not present those references as coming from any recent invention or attribution of the name 'Maduwongga'. They do not, for example, appear to have arisen only as a convenient name adopted after Mrs Strickland came across Tindale's materials in the South Australian Museum, something that happened in 1994 (see below). Rather, the word 'Maduwongga' is presented as something that was in active use, at least throughout most of Mrs Nudding's and Mrs Strickland's lifetimes, and likely before they were born. For example, Mrs Strickland's witness statement says (para 22):
Dad said he was a Maduwongga person. Aunty Eva and Aunty Violet also told me they were Maduwongga. I remember that, when Dad's nephew, Teddy Forrest (the son of Aunty Violet and Norman Forrest) died in January 1987, Dad stood at Teddy's grave after the funeral and said: 'There goes the last of the Maduwongga', which I took to mean the last Maduwongga man other than himself.
165 This means that, whatever the significance of KB's use of the term to Dr Mathieu's opinion, it is relevant to the Maduwongga applicant's case. If KB was not using the words 'madu wongga' to name her tribe, then is hard to see where that name came from, if it was indeed used before the first native title claim made by Mrs Nudding and Mrs Strickland. KB's comment is the only recorded instance of the use of the words before that date potentially as the name of the relevant tribe, and there is no suggestion in the evidence that any 'Maduwongga' person before 1994 was acquainted with Tindale's use of it as a tribal name. So if Tindale was incorrect to understand KB to be naming her tribe, that would damage the overall credibility of the Maduwongga applicant's case. It would also, more specifically, damage the credibility of Dr Mathieu's evidence as, although she minimised the importance of the matter in her oral evidence, her first written report (Mathieu I) characterised as 'irrefutable' the evidence that in 1939 people identified themselves as belonging to a tribe named Maduwongga (see Section XII below).
166 The second reason KB's use of the words 'madu wongga' is relevant is that, as has been said, there is a controversy about where she and her people came from originally. The Maduwongga applicant's case is that KB and her father, Johnny, were born at Edjudina. The respondents contend, however, that KB and her family were located in spinifex country to the east of the Maduwongga claim area before they moved into the Edjudina area. If the latter contention is correct, it makes it likely that they were Western Desert people. Further, for reasons that will be explained, it would also negative the Maduwongga case that KB had rights in relation to land in the claim area under the normative system of traditional laws and customs of a distinct (non-Western Desert) land-holding group. What KB meant when she used the words 'madu wongga' is relevant to this controversy because, as developed below, it sheds light on the origins of her and her family.
The use of the term 'Maduwongga' in Tindale's materials
167 Tindale was the first anthropologist to identify Aboriginal people in the Maduwongga claim area under the name Maduwongga. The first recorded use of that name in connection with KB and her family appears to have occurred in his field records, which are held in the archives of the South Australian Museum. Setting aside expert witnesses in native title claims, Tindale is also the only anthropologist to have identified the Maduwongga as a tribe in the Goldfields. It is common ground between the experts that no anthropologists apart from him have identified 'Maduwongga', or similar, as either a group, concept or term in or around the overlap area. Dr Mathieu refers to other sources, such as Roheim and Davidson, which place a group within the boundaries of the Maduwongga claim area. But she acknowledged that none of them identify that group as 'Maduwongga'.
168 Conversely, it is also common ground that other ethnographers and anthropologists - Bates, Elkin, Berndt and Tonkinson - have identified the term 'Maduwongga' or similar elsewhere in Australia including in the Western Desert outside the overlap area.
169 Tindale 'discovered' the Maduwongga tribe in the course of a massive expedition across Australia which he undertook in 1938 and 1939. Under the auspices of Harvard University and the University of Adelaide, he and Joseph Birdsell undertook an anthropological survey of Aboriginal Australia. They travelled across the continent asking Aboriginal persons questions about 'a few fundamental facts about their lives': Mathieu I para 353.
170 Among the thousands of Aboriginal people Tindale and Birdsell, and their wives Dorothy Tindale and Beatrice Birdsell, spoke to on this expedition were KB and Arthur Newland. This happened at Southern Cross in early May 1939. There was some controversy in Dr Mathieu's cross examination about whether Tindale also met KB and Arthur Newland at Mt Margaret later, on 16 May 1939, but Dr Mathieu ultimately conceded that he did not. In any event, according to the Maduwongga applicant's case, when the Tindales and the Birdsells spoke to KB and Arthur Newland at Southern Cross, KB identified herself as 'Maduwongga'.
171 According to Dr Mathieu, the name 'Maduwongga' means the Wonggai people who say 'madu' or 'mardu' to refer to man (Mathieu I para 107). Dr Morton agrees that is what the words mean, but puts a different view about their significance. He relies on the supplementary report of linguist Dr Mark Clendon that was filed in Wongatha which Dr Morton quotes as saying (Morton II para 49):
The term Maduwonga is orthographic Martu wangka (literally 'person speech') 'Aboriginal language,' a term applied generally in the Western Desert to Aboriginal languages as opposed to English.
'Madu' means 'person' or 'man', and 'wongga' means 'speech' or 'talk' (although as will be seen, however, Dr Morton came to consider late in the course of evidence that the word 'martu' had a different meaning among certain people of South Australia which led to a late revision in his view about where KB likely came from).
172 The words 'madu' and 'wongga' or the composite 'Maduwongga' appear in Tindale's records on three genealogical sheets, numbered 67, 110 and 118, which were apparently prepared by him in the course of interviewing Aboriginal informants.
173 Genealogy sheets 110 and 118 are the most important for this matter. They are reproduced in, respectively, Annexures B and C to these reasons. These and other relevant records are described in greater detail below under the heading 'The life of KB'. They each include entries for KB against which Tindale has written the words 'Madu woŋga' or ''Madu 'woŋga'. Sheet 118 also contains a separate note, described further below, which commences with those two words and from which an arrow connects to the entry on that sheet for KB. KB is the only person on the sheets who has that designation given to her (on genealogy sheet 110 someone called Ginger appears with the note '['Mardu Tr.]' but no party sought to make anything of that).
174 There are also data cards in the Tindale archives, which include cards for KB. Entries on data cards for KB, for her unnamed mother, and for her daughters Eva and Violet, give 'Maduwoŋga' in a space for 'Tribe'. Another data card for KB dated 7 May 1939 is blank in a space provided for 'Tribe'. There are also data cards for Arthur Newland which are blank in the space provided for 'Tribe'. Dr Mathieu accepted in cross examination that there was no suggestion in the data cards that Mr Newland had used the word Maduwongga with Tindale. There are no data card entries for KB's father Johnny.
175 As for genealogy sheet 67, it was taken at Moore River on 26 April 1939, and notes 'Maduwoŋga' against entries for one Jean Walker, who may have been the informant for the sheet, and her mother, Mary. According to Morton II there is also a data card for Jean Walker which gives 'Maduwongga' for 'Tribe' on three occasions, once for Jean, once for her mother, and once for her daughter.
176 Dr Mathieu says in Mathieu I that there are a total of 'six persons specifically recorded as Maduwongga in all of Tindale's genealogies' (para 418a). In fact, only three persons are recorded as such on the genealogy sheets: KB, Jean Walker and Mary (with another person, KB's husband Tommy Bluegum, seemingly initially noted as 'Madu woŋga', but that was then crossed out). Perhaps Dr Mathieu is also referring to the data cards, in which case the six people would be KB, her unnamed mother, and Eva and Violet, and Jean Walker and Mary, however she then goes on to say that Arthur, Violet and Eva would be additional to the group of six people.
177 It is difficult to know what to make of the attribution of 'Maduwongga' to Jean Walker and Mary. Who they were, and how they are related to the Maduwongga claim group did not appear from the evidence. Sheet 67, on which they appear, was itself only in evidence by way of an unclear copy that appeared in Morton II. There, Dr Morton speculates that Tindale may have attributed the Maduwongga tribal identity to them because they came from the Kalgoorlie district. He says that Tindale was 'desperate to fill in all the gaps' in his goal to map the tribes of the Australian continent and Tasmania (ts 444). Dr Morton refers to a journal that Tindale kept of his expedition. There is no entry using the term Maduwongga in that journal before 6 and 7 May 1939, when Tindale spoke to KB. Dr Morton considers that if Jean Walker or Mary had, on 26 April 1939, identified themselves as belonging to a tribe that Tindale had not then heard of, he would certainly have noted this in his journal. In contrast Dr Mathieu simply assumes that Jean Walker and Mary identified themselves to Tindale as Maduwongga.
178 In truth there is no real explanation apparent from the materials as to why Tindale marked Jean Walker and Mary as Maduwongga, and I see no basis to go beyond another comment of Dr Morton's: that why Tindale came to mark-up Jean, her mother and her daughter as Maduwongga 'remains somewhat puzzling' (Morton II para 32). It is true that Dr Mathieu sought to enlist that attribution at several points in her oral evidence in order to show that KB was not the only person to use the term for a Goldfields tribe when speaking to Tindale. It is difficult to take that seriously when the Maduwongga applicant has not sought to explain who Jean Walker and Mary were, nor to include them or their descendants in the claim group, so there is no need to try to solve this particular puzzle.
179 It will be necessary to return to the significance of Tindale's materials later below. While the experts had much more to say on the subject, further comment on the meaning of 'Madu-Wonga' as recorded in those materials will not be useful until after consideration of a wide range of other evidence. That includes in particular material about KB's biography, about where she and her family came from, about Tindale's mapping of Maduwongga country, about language, and about section systems. Only after surveying that material will it be possible to resolve the competing contentions of the experts about the significance of KB's use of the term.
180 I will now turn to the contemporary lay evidence about the term 'Maduwongga'.
The Maduwongga applicant's evidence about the use of the term 'Maduwongga'
181 According to Mrs Nudding's evidence in Wongatha, KB said that she belonged to 'the Maduwongga' (WT 7857). Her evidence was that Arthur Newland told her that. She never met KB, who died before she was born (according to her testimony in Wongatha, in 1943, though other evidence is that KB died in 1945). Mrs Nudding also gave evidence in this proceeding and in Wongatha that her Auntie Lena Judd, who according to Mrs Nudding was the daughter of KB's sister (who was called Minnie), told Mrs Nudding that she (Lena) 'belonged to the Maduwongga people' and was 'a Maduwongga' (WS 6.1; WT 7858). It may be useful for the reader to refer to Annexure D to these reasons, which contains a basic genealogy for KB and her descendants.
182 When asked in this proceeding what 'Maduwongga' meant in Aboriginal language, Mrs Nudding said that 'wongga' means 'talk' and 'Madu' was part of a word 'madumalda' which means 'stop it'. But she was not asked, and did not say, what language those words were from, or what group of people used those words, or where she obtained that knowledge. Indeed, when asked whether the isolated term 'madu' had a meaning she said, 'I don't know. We making up stuff here but I'm just telling you my impression of what I thought' (ts 259). I put no weight on Mrs Nudding's evidence about the meaning of the word 'Maduwongga'. She was trying to answer the questions put to her as best she could but did not profess any special knowledge of that particular subject matter.
183 Marjorie Strickland's evidence was that she first heard the name 'Maduwongga' from her aunts Eva Quinn and Lena Judd, when she (Marjorie) was about 10 or 11 years old and living in Menzies. In cross examination, Mrs Strickland gave the following evidence about how her aunts told her about 'Maduwongga' (ts 137):
MR RANSON: And what did they tell you? Did they just tell you the name Maduwongga?
MARJORIE STRICKLAND: They - well, yes - you could say yes and no. They were sitting down in conversation. They were talking. They'll tell you stories. Yes, she'd tell a story. Aunty Lena would tell a story how she went out and got lost in the bush and that. And they - there was no particular person who told you any particular straight thing. You say 'who said that to you', well I can't say who said that to me because they were in a group.
It was a group conversation. We were there and we heard conversations that went on, and they made a - yeah. But she did tell us that particular part, Aunty Lena did, that she was Maduwongga.
The reference to Auntie Lena's story about how she got lost in the bush is a story about being guided home by 'Maduwongga' spirits recounted in evidence considered in Section X below. In Wongatha Mrs Strickland said that Lena 'always talked about the Maduwongga people' (WT 7495).
184 After some questions and answers about the Maduwongga language, the cross examination returned to Mrs Strickland first learning of the existence of a Maduwongga group, as follows (ts 138):
MARJORIE STRICKLAND: That was Aunty Lena that I just thought who she was, and she knew about us and we had never seen her, 'Well, this is my sister.'
MR RANSON: And so it was from her that you first heard that reference to Maduwongga?
MARJORIE STRICKLAND: No, no, no. No, no. She came there and - yeah, she came there.
MR RANSON: Okay. So do you have a clear recollection of which person actually first told you that name Maduwongga?
MARJORIE STRICKLAND: No, because it was a group thing. We couldn't - you know, we were there. We were never part of the conversations. You were told you would sit there, shut up, be quiet and listen to what we're - you know, you listen. And that's how you learn.
185 The cross examination then turned to a different possible account of how and when Mrs Strickland first learned of a group called the Maduwongga. She accepted that she had visited the South Australian Museum in 1994, before she lodged her first native title claim in that year. Her evidence was that she went there because she was researching the family history of Walter ('Watt') Newland, a white pastoralist who was the grandfather of Mrs Strickland and Mrs Nudding, being the father of their father, Arthur Newland. Mrs Strickland had information that Walter Newland's family originally came from South Australia, and she also thought there might be information at the South Australia Museum about her mother Lallie Akbar, whom she said the State government took away and sent to that State.
186 Mrs Strickland was then cross examined as follows (ts 140-141):
MR RANSON: And it was when you were doing that research that you fortuitously stumbled across the Tindale material which appeared in your Native Title claim application several months later.
MARJORIE STRICKLAND: Well, it - yeah, I don't know if I - I don't know if I'd use the word 'stumbled' over it. I didn't go looking for it.
MR RANSON: When you went to the South Australia Museum, as you were walking through the front door of the museum, did you already have the idea that you were going to put in a Native Title claim?
MARJORIE STRICKLAND: No, of course not.
MR RANSON: It hadn't even occurred to you?
MARJORIE STRICKLAND: I - well, not - I wasn't going to go walking in the museum to go and find evidence. No. I went to the museum to find other evidence about other stuff.
MR RANSON: Yes. But had you had - - -
MARJORIE STRICKLAND: I happened to get that there and take in consideration, yeah, just - and just have a look at this stuff, it may be interesting to see - - -
MR RANSON: Had you had the idea, though, to have a Native Title claim at that stage?
MARJORIE STRICKLAND: Depends on what you call 'idea'. The thought crossed my mind. It wasn't - you can call it an idea, I don't know.
MR RANSON: And so you had the good fortune of finding this Tindale material, and presumably you took copies of that material and brought it back with you?
MARJORIE STRICKLAND: Yeah. …
187 The cross examiner suggested that it was a little surprising that Mrs Strickland went to the museum for another purpose and happened to discover Tindale and be given access to unpublished archival material including his journal and his genealogical material. But Mrs Strickland maintained that this happened because she had got talking with a worker at the museum who was Aboriginal. In her evidence in Wongatha she accepted that she had been 'guided' by the boundaries shown in Tindale's book (see below) but denied that she 'relied on it', a distinction she appeared to maintain in her evidence in this proceeding (WT 7752; ts 143).
188 It was put to Mrs Strickland that both Albert Newland and Phillip O'Donoghue, a grandchild of Violet Quinn, gave evidence in Wongatha that the first time they heard the name Maduwongga was after Mrs Strickland lodged her first native title claim. Her explanation for that, in relation to Mr Newland at least, was that they were not interested.
189 It was then put to Mrs Strickland that it was in fact from Tindale that she 'first got the idea of Maduwongga people and Maduwongga country'. She disagreed with that proposition. The cross examination then went as follows (ts 145-146):
MR RANSON: And that first claim where you annexed a copy of Professor Tindale's description and map, if you already had knowledge about Maduwongga people and Maduwongga country at that stage, why didn't you describe the Maduwongga people and the Maduwongga country in your own words in that Form 1? Why did you just photocopy Professor Tindale's material?
MARJORIE STRICKLAND: Well, I - we had our own description or how that was. It's not exactly like I thought what Tindale set it out.
MR RANSON: Yes, but you didn't put that description.
MARJORIE STRICKLAND: You know, set the framework. I - you know, it was - I don't know. I don't remember. I don't know, understand, but why - if we knew about it, we knew about it, but we are people that are very low profile people in the community. We're not one to stand up and go and do this and do that so we just - and we don't know much about what Native Title meant, you know, and that, so yeah.
190 The document on which this cross examination was based was the first Maduwongga native title claim, which appears from a date stamp to have been originally lodged with the National Native Title Tribunal on 19 April 1994. The sole applicant was Mrs Strickland. She was represented by a firm of solicitors. The other persons with whom she claimed to hold native title was specified simply as 'all those persons who are Maduwongga peoples'. The claim was of 'the right to exclusively occupy, use and enjoy the land under the traditional laws and customs observed by the applicant and other or [sic of] the Maduwongga Peoples'.
191 At an earlier point in cross examination, Mrs Strickland had accepted that the claim and the boundaries of the area set out in that claim were based on Tindale's 1974 map. But she said 'we had known about the area, and that is just confirms what we knew …' (ts 109).
192 A description of the 'Maduwongga area' was given in an annexure to the document. That annexure was headed with a reference to a specific page of Professor Tindale's well known work, Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution, Limits, and Proper Names (University of California Press, 1974). It also gave the following references:
Ref: Garnier In Hugenin, 1902;
Davidson, 1938;
Tindale, 1940, 1966 MS
193 Against the heading 'LOCATION' the annexure to the claim specifies:
From Pinjin on Lake Rebecca West to Mulline; from a few miles south of Menzies to Kalgoorlie, Coolgardie, Kanowna, Kurnalpi and Siberia.
Statements suggest a protohistoric movement from the east displacing Kalamaia people west to beyond Bullabulling.
Their language was called Kabal and it was understood as far west as Southern Cross.
This precisely corresponds with the description of Maduwongga territory given in Tindale's Aboriginal Tribes of Australia. There is another annexure which contains a map of the claim area, which also corresponds precisely to the area shown on the map of the territories of the Maduwongga and surrounding tribes in Aboriginal Tribes of Australia. That mapping and some of the description of the country given is very similar to an earlier version of the mapping which Professor Tindale gathered in 1939 and published in 1940.
194 Taken as a whole I found Mrs Strickland's evidence on how she first came to hear of the Maduwongga group and of Maduwongga country to be unconvincing. Of course if she did come to hear of the Maduwongga from her relatives when she was a child, one would not expect her to remember a particular occasion on which she was first told. It could well have been something she just grew up with. But the evidence she did give about that lacked conviction; for example she did not say that it was just something that was always talked about in her family.
195 In cross examination, Mrs Strickland did not refute with any force the idea that the first Maduwongga native title claim was based on the Tindale material in the South Australian Museum and Tindale's published Maduwongga map. Despite the direction of some of the cross examination, I need make no finding about whether she went to the museum with the idea of a native title claim in mind, or whether the idea came to her, or at least crystallised, after the visit. That does not matter. What matters is that Mrs Strickland came across the Tindale material in 1994, took copies of it away with her, and then made a native title claim in 1994 which was precisely and, as far as one can tell, entirely, based on that material. If Mrs Strickland did have knowledge of the Maduwongga and the extent of their territory that she obtained independently of Tindale, the pre-existence of that knowledge does not appear from the 1994 claim, as admittedly brief as it was.
196 As in Wongatha, Mrs Strickland appeared to place weight on a semantic distinction between being guided by that material in a native title claim and placing reliance on it. But she did not deny that the Tindale material had influenced the first claim she lodged, which identified a separate Maduwongga group and identified Maduwongga territory. And when asked why she used Tindale's descriptions rather than her own in that claim, her evidence became incoherent. Mrs Strickland was an acute and tough-minded witness throughout, neither suggestible, timid nor easily disoriented. So her inability to defend her position at this point suggests that the position lacked a firm foundation in her memories.
197 As for the meaning of the word 'Maduwongga', Mrs Strickland said in cross examination that 'madu' or 'mangi' (it is transcribed both ways) means 'man' and 'wongga' means 'to talk', so she appeared to accept the proposition that 'Maduwongga' means man speaking. She too was not asked in what language it meant that, although given that she only claimed to know three 'Maduwongga language' words for different things, it appears unlikely that Mrs Strickland would label 'madu' and 'wongga' as Maduwongga words. Mrs Strickland also accepted in cross examination that she had heard of people from the areas around Jigalong and Wiluna being called martu.
The evidence of other witnesses
198 Albert Newland's evidence in Wongatha was that before he became involved in that claim, he had never heard of a tribe or a group of Aboriginal people called Maduwongga. He said he had heard of the name since then, identifying it as being on 'the Tindale survey', which he had seen (WT 3870-3871, 3892).
199 Teresa Stokes has been employed as a Land Management Ranger by the Goldfields Land and Sea Council since 2016. Her evidence in this proceeding was that when she was on a Ranger Leadership Programme in Newman in mid-2019 she met an Aboriginal elder called Butler Landy. She said that Mr Landy was a Madu elder from the Newman area. Ms Stokes said that during the course of the programme, Mr Landy approached her and asked where she came from and who her grandparents were. Ms Stokes is Joyce Nudding's granddaughter, so Arthur Newland was her great grandfather. Her evidence was that she told Mr Landy that her grandmother, Mrs Nudding, was a Newland. Mr Landy said that years ago he had met Arthur Newland on Wati Law business. He said Arthur Newland was 'Maduwongga' and came from the Goldfields. He also called him by the name Windtharra.
200 Ms Stokes was not cross examined and I accept her evidence as truthfully given. But in so far as it went to the issue of whether Arthur Newland was known as 'Maduwongga', it was hearsay and I do not put much weight on it. How Mr Landy knew that Arthur Newland was Maduwongga, and when he heard Mr Newland referred to by that description, are not apparent from her evidence. Mid-2019 was well after the name Maduwongga began to be used in connection with native title claims. The reliability of Mr Landy as the informant as to that matter is impossible to judge. It is also noteworthy that Dr Mathieu tells a version of this story in Mathieu II, but attributes it to a Mr Tinker, not Mr Landy. It is not clear how this could have just been a slip in names, since Dr Mathieu goes on to describe her own visit to Mr Tinker in 2019 and what he told her.
201 In relation to the two persons who comprise the Maduwongga applicant, Hector O'Loughlin said (Exh 16 paras 57-58):
I think Joyce and Marjorie are the same as us. We're all mixed up with them. They're the same. As far as I know, they've always been around Menzies, Leonora, Laverton area. I don't know about their language. They didn't speak too much Wangkayi. They should be included in the Nyalpa Pirniku claim. We share that country around Edjudina with them. I never heard of Maduwongga the whole time I was around Edjudina. I only heard it when native title started.
I remember the Nyalpa Pirniku authorisation meeting. I think the sisters pulled [KB] off the claim, Marjorie and Joyce. I think their kids were there, a couple of girls. Don Ballinger was there too. They're Wangkayi people.
202 In Hector O'Loughlin's evidence in chief, he said that he knew Violet Quinn and Eva Quinn and 'knew them to be a bit different. I don't know whether they were Wangkayis or not' (WS para 52). But this equivocal evidence does not displace the weight of other evidence described here.
203 Cheryl Cotterill also said she (Exh 19 para 61):
only heard the word Maduwongga when Native Title started. I don't know what it means; it's just a name. I've never heard it prior to native title and Marjorie and Joyce put the claim in.
204 Cheryl Cotterill's evidence was that as a child she stayed with her cousin who lived next door to Violet Quinn and Jessop Sullivan and to Arthur Newland and Lallie Newland (Akbar). She said 'I considered them Wangkayi people, because I heard it all the time' (Exh 19 para 55).
205 Elvis Stokes's evidence was that he had not heard the word Maduwongga 'before Native Title came about' (Exh 18 para 33). He 'always thought of Arthur Newland as Wangkayi, same as us, until the Maduwongga claim came about. Then I heard he was Maduwongga' (para 32). Mr Stokes's evidence was (Exh 18 paras 41-42):
My lawyer asked me if I think the descendants of [KB] that we just discussed are different to Nyalpa Pirniku. I don't think they are different. We're all Wangkayi. They speak Wangkayi, they do activities the same as us Wangkayis, like how they cook kangaroo and turkey.
To me they are Wangkayi people. We all have the same culture. Language, cooking, cultural society. We have the same tjkurrpa. To the best of my knowledge, those people that are the descendants of [KB] have the same knowledge of culture and dreaming.
206 Ivan Forrest's evidence was that as far as he knew, Arthur Newland had 'always been a Wangkayi. Same as everyone. I've never known him as anything else' (Exh 20 para 34).
207 Phillip O'Donoghue's evidence in Wongatha was to the effect that the Goldfields, including places in the Maduwongga claim area, was all Wangkayi. He said '[m]y indication or what I've ever known was the goldfields were the Wangkayi people' (TB 1.9 p 9450ff). Violet Quinn always told him that 'we were Wangkayi people. I've never ever been told otherwise, so any else other than that by my grandparents. She said that we are Wangkayi people and that was it' (TB 1.9 p 9431).
208 Mr O'Donoghue identified the country of his grandmother Violet Quinn also in the terms of the extent of the Wangkayi area. His knowledge of people referring to the country by different names, including 'Maduwongga', was only recent and only came in with native title. He said that after 1997 or 1998 when Mrs Strickland and Mrs Nudding were organising the first Maduwongga claim (or at least it appears the first one of which he was aware) was 'the first time that I learnt that our tribal name was the Maduwonga at that time then' (TB 1.9 p 9459). Mrs Strickland told him that.
Some observations about the Aboriginal evidence of a Maduwongga group
209 With the exception of Teresa Stokes' hearsay evidence, on which I put little weight, there is a consistency about the evidence of all the Aboriginal witnesses, other than Mrs Strickland and Mrs Nudding. They had never heard the term 'Maduwongga' until it came to be used in native title claims which must have been, at the earliest, when Mrs Strickland made her first claim in 1994. They had not applied it, or heard it applied, to people now said to be Maduwongga, including the wati and KB's son Arthur Newland and KB's daughter Violet Quinn.
210 For reasons I have given, it is sensible to place less weight on the evidence of the deceased witnesses whose testimony in Wongatha cannot be tested in this proceeding: in relation to this point, Albert Newland and Phillip O'Donoghue. But Hector O'Loughlin, Ivan Forrest, Elvis Stokes and Cheryl Cotterill did give evidence in this proceeding, and were not cross examined on these points. I accept their evidence as truthful, and it is consistent with the evidence of the deceased witnesses.
211 Which all leads to this: if there had been a group called the Maduwongga which, as recently as 1939, had rights and interests in a large swathe of territory from Coolgardie up nearly to Menzies to the north and to Edjudina in the north east, it would be surprising that none of the witnesses who lived in the area, most of whom were born in the 1930s, 1940s and 1950s, had heard of the word before it was raised by one native title claimant, in the same year as that claimant herself came across anthropological materials using that term and mapping that territory. It would be further surprising that not only had those witnesses not heard it applied to people now said to be Maduwongga, all of them always considered those people to be Wangkayi (as to which see further below).
212 It is appropriate to defer making any firm finding about the origins of the use of the term 'Maduwongga' in this claim until after consideration of the rest of the evidence in this judgment.
Evidence about the names of other groups
213 It is convenient at this point to describe the evidence about the names to be given to other groupings of people, which appeared in the NP respondent's case and which have already been used above.
214 One of the NP claim group members, Elvis Stokes, said that he is a 'Wangkayi person'. 'Wangkayi' appears to be the accepted modern spelling of a word which, according to Mr Stokes is the singular of Wongatha, where Wongatha is the entire group of Wangkayis. He said 'Wongatha goes all the way up to Wiluna'. Within that group, 'Walyen and Koara are the tribes' (Exh 18 para 6). They are all Wangkayis (or Wongatha) but the two tribes appear to be distinguished by coming from different areas. So the Walyen are a subset of Wongatha. The people near Linden are generally known as Walyen, although Mr Stokes appeared to consider that people south of the Edjudina Range could be known as Walyen too. 'Waljen' was one tribe that Tindale mapped in his 1974 publication, who he identified as occupying country immediately to the north east of the territory he identified as Maduwongga.
215 Hector O'Loughlin, on the other hand, referred to the Wongatha as a tribe, which he appeared to say was spread from Laverton to Menzies and 'all the way past' Edjudina. He said that all the people he knew from there were Wangkayi people, who were part of Wongatha. His evidence did not speak of Walyen or Koara.
216 Ivan Forrest said that being a Wangkayi meant that he belonged 'to a group of people, a nation of Wongatha people, from close to the Northern Territory, the APY [Anangu Pitjantjatjara Yankunytjatjara] Lands and South Australia to Ooldea' (Exh 20 para 5). He named his 'tribe' as Walyen, which he said was a small tribal group within the Wongatha group. He said that '[o]ur group came from the Kookynie, Edjudina, Pinjin area' (Exh 20 para 6).
217 Mr Forrest was cross examined on the meaning of the word 'Wangkayi' (transcribed in this proceeding as 'wongi') as follows (ts 390):
MR McINTYRE: Really the word wongi just is a word used to describe an Aboriginal person and it's commonly used to describe Aboriginal people living in the eastern goldfields, isn't it?
IVAN FORREST: No, it's to describe a person who is a Wongatha descendant, Wongatha. It's not to describe an Aboriginal because we've got Aboriginals who are Noongar, Yamatji, down the south-west Ngadju. They're not wongis.
MR McINTYRE: No, but if they are from the eastern goldfields, anywhere from Kalgoorlie and Coolgardie north of there, you'd describe them as wongis, wouldn't you?
IVAN FORREST: Yes - no, no, I didn't describe the people in Coolgardie [as] wongis.
218 Cheryl Cotterill's evidence was that because she was Wangkayi that 'means belonging to a group of people; the Wongatha people. … There are sub-groups within Wangkayi but they're all the same larger group; we're different to Ngadju or Noongar' (Exh 19 para 5). She also said that her father, Morris Brownley, was Walyen. She said, 'That still makes him a Wangkayi person, but Waljen is the tribe within Wangkayi. Growing up, we were always told we were Waljen' (Exh 19 para 14).
219 Mrs Strickland was also cross examined about the word 'wongi/Wangkayi'. Her evidence in Wongatha was that in her primary school years in Menzies she heard Aboriginal people in the Goldfields refer to themselves as 'black fellas as well as Wangkayis'. She said 'Well, it's a word that's for the Western Desert dialect but they use Wangkayi, and that was the language their mother used, so it's a Wangkayi to identify an Aboriginal person'. She said that 'Wongatha' was the plural of 'Wangkayi' (WT 7738). In this proceeding, she confirmed that 'wongi' was equivalent to Aboriginal person, but it appeared that it could still be used to designate an Aboriginal person from a particular large area including the Goldfields. Mrs Strickland said that when she went to university in Perth, Noongar people would call her a wongi '[m]eaning "you from up that way"' (ts 171). She said she would still call someone from Wiluna or Jigalong a wongi.
220 Similarly, in cross examination Mrs Nudding said that 'Wongi is not a language, Wongi is a word for Aboriginal person, you know. Wongi is one - like a person, one person from the goldfields' (ts 309). In her Wongatha testimony she said that Wangkayi means any Aboriginal person. Mrs Nudding was also asked whether Walyen is the same thing as Wongatha and said that Wongatha was 'for the Goldfields Aboriginal people' and Walyen was the language (ts 279).
221 Despite this testimony and that of Mrs Strickland, the weight of the Aboriginal evidence is that 'Wangkayi' is not a term used in the Goldfields or elsewhere to refer to an Aboriginal person in a generic way. It is used to designate a specific, albeit potentially large and widespread, group of Aboriginal people. The evidence of the NP respondent's witnesses to that effect was unchallenged, save in the case of Mr Forrest, and he stood firm.
222 I will therefore proceed on the basis that when Aboriginal witnesses refer to Wangkayi or Wongatha, they are referring to Western Desert people, who are likely to acknowledge the laws and observe the customs of the Western Desert. And it will be convenient and, in my view, not inaccurate, to refer to the Walyen as an identifiable tribe who are a smaller subset of the larger Wangkayi/Wongatha group.
The group of people identified (or potentially identified) as Maduwongga
223 I now turn to consider, quite simply, who can be identified as belonging to this group of people apparently designated as Maduwongga, at least up to Mrs Nudding's and Mrs Strickland's generation.
224 The people who are identified in the claim of the Maduwongga applicant as comprising the Maduwongga are simply 'the descendants of [KB]'. As already mentioned, Annexure D to these reasons contains a basic genealogy for KB and her descendants. It is helpful to sketch the biographical histories and genealogical relationships of the members of that group who were most prominent in the evidence, as well as those of their ancestors who were mentioned in the evidence, as that provides context for much of what follows. I will include in this group Albert Newland because he may have been descended from Arthur Newland and thus from KB, although that was controversial. On that subject, and on one or two others, dispute between the parties necessitates more than a brief biographical sketch.
225 Much of the dispute between the parties as to the interpretation of the evidence centred around the biography of KB herself, so the evidence about her will not be addressed in this section but will be given its own section below.
226 There is little that can be said about KB's father, known as Johnny. Nevertheless, the Maduwongga applicant places some significance on a contention that he was born in the claim area, at Edjudina, and had a connection to that area.
227 Mrs Nudding's evidence in Wongatha was that both her father, Arthur Newland, and one of her aunts, Eva Quinn, told her that KB's father was Johnny, also known as Old Johnny, and that his country was around Edjudina. Mrs Strickland gave similar evidence in Wongatha, saying she was told about Johnny by her aunties Eva Quinn and Lena Judd. Mrs Nudding and Mrs Strickland both gave similar evidence in this proceeding too, saying they were told about Johnny by their father, by Eva Quinn, and by Arthur Newland's apparent half-brother, 'Gillie' Newland.
228 The only direct evidence associating Johnny with Edjudina is a note in a genealogy taken by Tindale, which is described below. In addition, hearsay evidence about his connection with Edjudina is said to have come from Gillie Newland (Uncle Gillie), and was a matter of controversy between the parties. In the end not much comes of the controversy as far as substantive evidence goes, but it is worth dealing with it because it bears on Mrs Nudding's and Mrs Strickland's credibility.
229 Gillie Newland was the son of the white pastoralist, Walter Newland, who according to the Maduwongga applicant was Arthur Newland's father. Mrs Strickland said Arthur Newland and Gillie Newland looked like twins, even though Arthur Newland was an Aboriginal man and Gillie Newland was a white man. Her evidence was that Gillie called Arthur his brother. Mrs Nudding also said that Arthur and Gillie looked the same.
230 According to Mathieu II, 'the Maduwongga' learned what they know of Johnny from Gillie Newland, and from what they discovered when visiting the Museum of South Australia, that is from Tindale's materials. Dr Mathieu says they did not learn of it directly from their father, Arthur Newland, or his sisters.
231 It appears from Dr Mathieu's first report, Mathieu I, that Gillie Newland related various stories to Mrs Nudding and Mrs Strickland and to his daughter, Adele Newland-Lucev, but it is not clear which story he told to whom. The story that is relevant here is simply that Johnny met Walter Newland in Coolgardie during the gold rush, and later guided him to Edjudina, and when Walter acquired the lease of his property in that area, Johnny became Walter's right hand man. Mrs Strickland's evidence placed the first meeting between Johnny and Walter Newland in 1888. However, the lease of the station was granted in 1902.
232 Elsewhere in Mathieu I, Dr Mathieu says that before Mrs Strickland came across the genealogies in the Museum of South Australia, she and Mrs Nudding knew only of KB and not about KB's father Johnny. Dr McDonald said something similar in his expert's report for the Maduwongga claim in Wongatha. In re-examination Mrs Strickland said that she thought that Dr Mathieu obtained the information about Gillie Newland's story about Johnny from interviewing his daughter, Ms Newland-Lucev, and other family.
233 In her witness statement, Mrs Strickland appeared to say that she heard the story from Gillie Newland, and Mrs Nudding's statement clearly says that. Mrs Strickland also maintained in cross examination that she learned about the connection between Johnny and Edjudina from Gillie: 'I'm saying that Johnny was the one who took him to Edjudina, he was his right-hand man and he led him to water up there and started that station. That's all I know' (ts 97).
234 However in cross examination she appeared to concede that she only learned Johnny's name from the Tindale material and in fact she only spoke to Gillie about Johnny after she had seen the Tindale material. That is consistent with her earlier evidence that Arthur Newland, Eva Quinn and Lena Judd told her about Johnny, as they all passed away before Mrs Strickland discovered Tindale's material. She saw that material in 1994 and, according to Mathieu I, Gillie died in 2010. In re-examination she confirmed that she did not know about Johnny, including his name, until after she read it in Tindale's records. This retraction of her earlier evidence damages her credibility.
235 Mrs Nudding was cross examined on the passage from Mathieu II just mentioned to the effect that 'the Maduwongga' did not learn about Johnny from Arthur Newland or his sisters. Mrs Nudding said in cross examination that Dr Mathieu was right about that. I do not accept a submission put by senior counsel for the Maduwongga applicant in the course of the cross examination that Dr Mathieu was distinguishing between 'stories' and 'more general knowledge' (ts 243). Dr Mathieu is talking about the knowledge about Johnny and KB's sister and brother that was imparted to Mrs Nudding and Mrs Strickland through stories told by Gillie Newland. The fact that there are two different versions of how Mrs Nudding learned about Johnny reduces the weight that can be put on her evidence about it. And as with her sister, Mrs Nudding's concession damages her credibility.
236 Accepting the concessions, to the extent that there is any remaining tension in the evidence just summarised, I reconcile it by finding that Mrs Strickland and Mrs Nudding did not know about Johnny until Mrs Strickland saw the Tindale materials in the Museum of South Australia in 1994, but that after that they spoke to Gillie Newland about it, and he told them the story of Johnny meeting Walter Newland and taking him to Edjudina.
237 The parties are in dispute about the provenance of the story because the State submits that it is 'fourth-hand hearsay in Ms Strickland's hands' (SCS para 53). The Maduwongga applicant submits that it is not fourth hand hearsay, and while it is hearsay, it is evidence of reputation concerning family history, within the exception to the hearsay rule in the Evidence Act, s 73(1)(d). But it is not necessary to determine that particular issue, as the evidence was admitted without objection. The question is one of weight.
238 While the story that Johnny took Walter Newland to Edjudina is not fourth hand hearsay in Mrs Strickland's and Mrs Nudding's evidence, it is at least second hand, concerning events said to have taken place well over a century ago, and I do not put much weight on its details. Dr Morton gives further reasons not to put weight on the story, as the conversation with Gillie took place post-Wongatha and after the discovery of Johnny's name in Tindale. In Dr Morton's view, 'the story needs to be contextualised properly in the history of native title and what has happened since 1993 and the Native Title Act, and the experience of native title claims in the Goldfields, particularly the various Maduwongga claims and the Wongatha case' (Exh 26 prop 1.3(a)). I agree with that assessment.
239 I accept that Johnny worked for Walter Newland at Edjudina during and after the establishment of Edjudina Station from 1902 onwards, as the family story that he was Walter's 'right hand man' unequivocally places him there at about that time. But I am not persuaded of the detail that Johnny was the one that showed Walter to Edjudina, whether or not that would imply that Edjudina had been Johnny's country before 1888, as that is the kind of detail that is likely to have been invented and embellished in over a century's worth of family tales.
240 It is uncontentious that KB was Johnny's daughter, and a sister to Minnie and Jimmy, and the mother of Eva Quinn, Violet Quinn, and Arthur Newland. It is also uncontentious that KB was born in about 1880 and died in 1945. Most of her other biographical details were the subject of acute contention, however, and given the importance the parties placed on that dispute, a separate part will be devoted to it below.
241 Joyce Nudding's evidence was that KB had a sister, who passed away after giving birth to Lena Judd. Mrs Nudding learned this from Eva Quinn. Mrs Strickland also said she heard about KB's sister from Eva Quinn. The sister's name was Minnie. The names of Minnie and Jimmy (see immediately below) are also given on Tindale's genealogy sheet 110 as siblings of KB, with Johnny as their father (see Annexure B). There is no information about where Minnie was born.
242 There is also mention in the evidence that according to Eva Quinn, KB had a brother, whom Marjorie Strickland called Jimmy. Mrs Nudding also referred to KB's brother as Jimmy in Wongatha. These two individuals are the only persons from KB's generation, apart from KB herself, who are known (or suggested by the evidence) to have been descended from Johnny, either biologically or by adoption. Jimmy is marked as being 'of Coolgardie or Karonie' on genealogy sheet 110. Dr Mathieu interprets this as meaning he was born in one of those places, but as will be seen the evidence does not establish that when a person is associated with a place on a genealogy sheet, this means that the person was born there.
243 The evidence of both Joyce Nudding and Marjorie Strickland was that KB had three children, Eva Quinn, Violet Quinn and their father, Arthur Newland. Eva Quinn was born around 1900. According to Mrs Nudding and Mrs Strickland's evidence, she was born in Menzies, although Tindale's data card for KB says that Eva was born 'Edjudina dist., WA'. Dr Mathieu says she was born in the region of Menzies. A white prospector called Jack Quinn was her father. He apparently lived at Mulgabbie, which is within the overlap area and in the eastern half of the Maduwongga claim area. In 1921 Eva married a man called Norman Forrest. Joyce Nudding's evidence identified Eva Quinn as Maduwongga. According to Marjorie Strickland's evidence, too, Eva Quinn told her that she was Maduwongga. She passed away in 1968. Eva had no biological children.
244 Violet Quinn was born somewhere between 1900 and 1910. According to Dr Mathieu, she was born in Kalgoorlie about 1902, but it is not clear on what basis she says this. There is less certainty about her paternity than about her sister Eva's, but the evidence indicates that her father was a white man. It may have been Jack Quinn. Violet married a man called Wilfred Morrison, and after divorcing him married Jessop Sullivan, who was from Darlot, north of the Maduwongga claim area. She also had a child with Norman Forrest (namely Teddy Forrest). Marjorie Strickland's evidence was that Violet Quinn told her that she (Violet) was Maduwongga. Joyce Nudding's evidence also identified her as Maduwongga. Violet Quinn died in 1973. (Violet Quinn and Eva Quinn will be referred to by their maiden names.)
245 According to the evidence of both Joyce Nudding and Marjorie Strickland, their father Arthur Newland was the son of KB and Walter Newland. He appears to have been born around 1905-1910, at Kanowna. Walter Newland formally adopted him in 1921, when Arthur was about 10. Counsel for the State cross examined Mrs Strickland about the suggestion that Arthur's biological father was in fact another white man called Jack Quinn, but the State made no submission explaining why a choice between two white men as to Arthur's biological paternity is relevant for the purposes of this proceeding. The Maduwongga applicant's closing submission was that Arthur was the child of Walter Newland or Jack Quinn, so it is not necessary to make a finding on the point.
246 Arthur Newland's Aboriginal name was Windtharra, although Albert Newland's evidence in Wongatha was that he had never heard the name Windtharra attributed to Arthur. Albert attributed an Aboriginal name to Arthur which is spelled in the transcript as 'Rutha' (WT 3912). Mrs Strickland's evidence was that Arthur Newland said that he was a Maduwongga person. Mrs Nudding's evidence was to the same effect.
247 Arthur Newland was born at Kanowna. He lived at Edjudina Station as a small boy. In 1922 Walter Newland sold Edjudina Station and took Arthur Newland to Perth. But soon afterwards Arthur was placed at the Old Pinjin Station south of Lake Rebecca by AO Neville, the Chief Protector of Aborigines at the time. At that time the station was owned by Walter Newland, and managed by Walter's white brother, Simpson (Sim) Newland. Mrs Nudding also gave evidence in Wongatha that Arthur Newland spent many years at Pinjin Station. He appears to have been there until he was about 16 or 17.
248 Arron Newland, a grandson of Mrs Strickland, also gave evidence about Arthur Newland in this proceeding. His evidence was to the effect that a Martu elder called Mr Tinker said that Arthur Newland had taken him 'through the Law'. Arron Newland also gave evidence that a friend of his, Geoffrey Todd, an initiated Marlpa Law man, identified Arthur Newland in a photograph as Windtharra. According to Arron Newland, Mr Todd said that:
he had learned about Windtharra out in the bush when he was being initiated. He was told that Windtharra was a 'magic man' from the Goldfields - a big powerful Lawman who was involved in Malu Law - which I understood to be the ceremony when special boys are chosen for initiation. He said he was taught that Windtharra had been the man who came and chose the candidates for initiation and took them to the ceremony. He said that the boys who were taken to be initiated with him were told stories about Windtharra, and that boys being initiated since were still told those stories.
249 Arron Newland was not cross examined on this evidence, other than to clarify that referring to Mr Todd as a 'Marlpa' person meant that he was an Aboriginal person from the Newman area, in the same way that referring to a person as a 'Wongi' means that they are an Aboriginal person from around the Kalgoorlie area. I accept Arron Newland's evidence and, given the relatively detailed hearsay account given by Mr Todd, accept that Arthur Newland was called Windtharra and was a senior Law man. The evidence does not indicate, however, whether Mr Todd is part of a Western Desert society. I also accept that Arthur Newland took the Martu elder Mr Tinker through the Law (Martu in this sense appearing from an uncontradicted explanation from the bar table to refer to people around Wiluna and Jigalong).
250 But the evidence says nothing about whether Arthur Newland was identified as a Maduwongga Law man. Rather, it indicates that Arthur Newland was associated with the Law business of the Martu people, who were located some 350 km and more north of the Maduwongga claim area. It also indicates that Marlpa boys from the area around Newman who are being initiated in the Law are being told stories of Windtharra, suggesting that Arthur Newland had a place in the Law business of people far away from the Maduwongga claim area. But Arron Newland's evidence does not advance the Maduwongga applicant's position that Arthur Newland was identified by others as a Maduwongga person or that he was involved in a Maduwongga Law.
251 Arthur Newland passed away in 1987.
252 There is some suggestion that KB had a fourth child, Dolly Larrikin, according to Morton II. She also appears to have been known by the name Lulu or Louise and the last names Mickie, Blurton and Forrest. But it is not necessary or possible to make a finding about Dolly Larrikin.
253 According to the evidence of each of Joyce Nudding and Marjorie Strickland, they gained their knowledge of Maduwongga laws and customs and KB's connection to Maduwongga country partly through Lena Judd.
254 Mrs Nudding's evidence in this proceeding and in Wongatha was that Lena Judd was born around Menzies. Mrs Strickland's evidence in this proceeding was the same. It may be that Lena's mother was KB's sister Minnie and that she died after giving birth to Lena, although in cross examination Mrs Strickland described the view that Minnie was Lena's mother as an assumption only. Dr Mathieu says that the identity of Lena's Aboriginal mother and her white father is unknown. KB wet nursed Lena and brought her up at the same time as KB's daughter Eva, who was roughly the same age as Lena.
255 Lena Judd spent some time at Edjudina before moving to Perth. Gillie Newland told Marjorie Strickland that Lena Judd and Eva Quinn had moved to Perth to look after him and Walter Newland, as domestic servants, before moving back to Edjudina Station after the Second World War. Lena later met Alf Judd, a miner, while she was working as a cook at the Porphyry Mine near Edjudina, and they married.
256 Mrs Nudding and Mrs Strickland met Lena Judd and Alf Judd when they (Joyce and Marjorie) were respectively about 10 and 12 years old, when Lena and Alf came to Menzies to live. Lena Judd lived there until she passed away, it appears in 1979. Lena had no children. Mrs Strickland's evidence is that Lena Judd told her when she first met her, and repeatedly, that she belonged to the Maduwongga people. Mrs Nudding also said that Lena Judd told her she was Maduwongga.
257 Edward (Teddy) Forrest was the son of Violet Quinn and Norman Forrest. He was born in about 1916. Marjorie Strickland's evidence was that when he died in January 1987, Arthur Newland stood by his grave and said 'There goes the last of the Maduwongga' (WS 6.2). Mrs Nudding's evidence recounted the incident similarly but said that Arthur Newland said that he 'had nobody left to talk to in his own language'. Arthur insisted that Teddy be buried in Kalgoorlie. As will be mentioned below, however, there is dispute between the parties as to whether the funeral arrangements were in fact made by Ivan Forrest, a member of the NP claim group. Teddy Forrest had no biological children.
258 Mrs Morrison was Violet Quinn's daughter. She was born in 1920. She had passed away before the drafting of a statement listing members of the Maduwongga claim group filed in this Court in August 1998.
259 Albert Newland had passed away by the time of the trial in this proceeding, but he gave evidence in Wongatha. According to that evidence, he was the son of Arthur Newland and Bessie Watson, who also took the name Bessie Harris. But Mrs Strickland and Mrs Nudding now say that Albert Newland was not in fact Arthur Newland's son, whether by biological descent or adoption. So while, according to Albert Newland, he was half-brother to Mrs Strickland and Mrs Nudding (they having a different mother, Lallie Akbar), they dispute that.
260 With respect, I do not consider that the importance of Albert Newland's paternity to this proceeding justifies the amount of attention the State, in particular, paid to it during the presentation of the evidence. But it is still worth discussing the issue for three reasons. First, it does have some relevance, as if Albert was Arthur's son or was recognised as such, his evidence that he had never heard of Maduwongga before native title is significant. Second, while there seems no dispute that he spent time with KB as a child, which lends further potential significance to his evidence, the detail of the evidence about his paternity casts more light on the nature and extent of the relationship with KB and so on the significance of Albert Newland's evidence in Wongatha. Third, the evidence sheds more light on the credibility of Mrs Nudding and Mrs Strickland and their approach to this native title claim generally.
261 Bessie Watson was not Maduwongga. Her father was a Wadjari man from the Murchison area. But she was born in Southern Cross.
262 Albert Newland's Aboriginal name was Bibinoo and identified his section group as milangka. He did not know who gave him that name, save that it was the older people who called him that. He did not know what the name meant. And he did not identify where that section classification came from.
263 It appears from evidence in Wongatha that Albert Newland was born in Merredin in 1930. After staying with his maternal grandmother after he was born, Albert Newland was sent to Broad Arrow to be with KB. At that stage, which must have been in the early to mid-1930s, KB was camping outside Broad Arrow and living with her husband, whom Albert Newland called Bluegum Taylor. But they were very mobile, moving between Ora Banda and Kanowna.
264 It appears that at the age of 5 or 6, however, Albert Newland was living with Arthur Newland at Southern Cross. At that time, his maternal grandmother took him from Southern Cross to Broad Arrow and then KB took him from Broad Arrow to the mission at Mt Margaret. He stayed there until he was 16, save for a year at Porphyry (a mining town near Edjudina) and a year at Broad Arrow. During that time, Albert Newland also met KB's daughters Eva Quinn and Violet Quinn, whom he called his 'Aunties', at Mt Margaret. He also had contact with KB and Arthur Newland (and Teddy Forrest) during holidays at this time. He would go out camping with relatives including KB at Broad Arrow. He last saw KB during his year spent in Broad Arrow.
265 Albert Newland entered into a de facto relationship some time after he left the Mt Margaret Mission. He had three children from that relationship and a number of other children subsequently.
266 I refer to and rely on parts of Albert Newland's evidence in Wongatha above and below. In ascertaining the weight to be given to that evidence I have been conscious that in that proceeding, he gave evidence in support of claims other than the Maduwongga claim, and was not a member of the Maduwongga claim group. That means that in some senses his position in the proceeding was adverse to that of Mrs Strickland and Mrs Nudding and the claim group they represented, as the Wongatha and Maduwongga claim areas overlapped.
267 I turn now to the issue of Albert Newland's paternity. His own evidence in Wongatha about that was unequivocal: his natural or biological father was Arthur Newland. That is who he always called 'Dad'. Arthur Newland never told him whether he was fostered or adopted by him. Prior to seeing some Department of Native Affairs documents in the Wongatha litigation which I will mention below, Albert Newland always understood his father's father to be Walter Newland, and his father's mother to be KB. Those documents suggest that Arthur Newland's biological father was a different white man, Jack Quinn, and that Walter Newland adopted him.
268 In Wongatha it was effectively put to Albert Newland that a man called Clem, who knew his parents, said that Albert's father was a man called Willy Sam. Albert Newland's response to that was (WT 3886):
Well, I would like to know whether he was in bed with Willy Sam and my mother, that's the other question; did he see the - did he really know I was Willy Sam's son?
Mr Newland's rhetorical question is, with respect, a good one. The Court puts no weight on vague hearsay of that kind.
269 In her evidence in this proceeding, however, Joyce Nudding flatly disagreed that Albert Newland was her brother. But at the same time she flatly denied that he had ever been included in the Maduwongga claim as a biological or adopted brother, when a statement of the claim group filed in the Maduwongga claim filed in this court in August 1998 (in WAG 76/1997) includes him on the basis that he is 'either biological and/or adopted son of Arthur Newland' (Exh 7). In cross examination Mrs Nudding sought to deal with this by saying that she had never seen the document and 'anybody can put anything on a document' and that she didn't 'know where they got that from' (ts 261). These attempts to disown a claim document filed by solicitors on behalf of her, a leading proponent of the Maduwongga claim, were unconvincing.
270 Mrs Nudding was also taken to passages in the anthropological report of Dr McDonald which the Maduwongga relied on in the claim that became part of Wongatha. The report identified Mrs Nudding and Mrs Strickland as Dr McDonald's main informants. It said that Albert Newland and his descendants were added to a genealogy of the claim group after comments made on a draft by Mrs Strickland, Mrs Nudding and others. It also referred to Albert Newland as a member of the claim group. When Mrs Nudding was asked in cross examination whether the things stated in the report were true, she equivocated and ultimately said that she didn't 'think some things they were quite right there' (ts 265-266). She also referred to her view that Albert Newland 'never supported us in the Native Title thing'. She gave no convincing reason why the things stated in the report should not be taken to mean what they appear to mean on their face: that in August 1998, at the time of the report, Mrs Nudding accepted Albert Newland as a member of the Maduwongga claim group by reason of his descent (biological or adopted) from KB. Mrs Nudding denied that Dr McDonald had spoken to her about it, but there is no reason to doubt the accuracy of what is said in the report, and it is inherently unlikely that Mrs Nudding did not notice the proposed inclusion of Albert Newland in the claim group when she was consulted about the draft genealogy.
271 Mrs Nudding was also taken to a historical letter (not tendered into evidence), on the basis of which she accepted that Arthur Newland had placed Albert Newland in the Mt Margaret mission. But she said that Arthur only took Albert to the mission because he was going in that direction on his way to work at Eucalyptus, implying that it was done as a favour to Bessie Watson and her then partner, Willie Sam, and not because Arthur was Albert's son.
272 However then the cross examiner took Mrs Nudding to a personal history of Arthur Newland that seems to have been compiled by the Department of Native Affairs in 1946. It contains an entry dated 11 October 1940, to the effect that Bessie Harris (Watson), Albert Newland's mother, had reported that Albert (given the name 'Albert Willie Sam'), aged about 4 years, was with Arthur Newland at Eucalyptus. It said (TB tab 4.1):
Mrs Harris is the mother of this child and Arthur Newland is reported to be the father. When the child was born, Mrs Harris states that Newland refused to take any interest in its welfare or that of its mother. Another native, named Willie Sam took both under his wing, until his death a year or so ago. After Willie Sam's death, Newland turned up again and obtained Mrs Harris' permission to take the child to Leonora for a holiday.
The next entry, from 16 April 1949, states that Albert was 'now discovered' at the Mt Margaret Mission.
273 Mrs Nudding accepted the correctness some of the details in these entries, including that it fitted with her recollection that Arthur Newland had been working at Eucalyptus, and that Albert Newland had been taken to the mission. But she did not agree with the suggestion in the record that Albert was Arthur's son. She claimed she had a conversation with her father 'long before he died' in which she 'asked my father straight out and that's what he told me, "No, he's not my son"' (ts 271).
274 Mrs Strickland similarly gave evidence that Arthur Newland had told her that Albert was not his son, although she could not recall when he said that. Mrs Strickland was cross examined on a native title claim that she made on behalf of the Maduwongga in 1998 (WC 98/20), as well as on the statement in WAG 76/1997 that Mrs Nudding was taken to, which as I have said listed Albert Newland as one of the applicants on the basis that he was a descendant of KB as either the biological or adopted son of Arthur Newland. Mrs Strickland simply denied, in the face of the document, that Albert was ever an applicant. She gave no reason why, if that was so, he was listed as an applicant on the claim. She did, however say that 'we considered him to be part of the [claim] group at that time' and later explained that she and Mrs Nudding subsequently took him off the claim because he had made a separate 'Maduwongga' claim together with Donald Ballinger, the son of Gertrude Morrison, who as I have described above was a daughter of Violet Quinn. She also accepted, however, that she had distributed 'native title money' to Albert Newland in the past (ts 129). When asked whether she had ever discussed Albert Newland's parentage with him, Mrs Strickland's evidence was to the effect that Albert said he 'never knew his father' (by whom she appeared to mean Arthur) and did not know anything about him (ts 131).
275 Counsel for the State took Mrs Strickland to a number of records apparently obtained from the Department of Aboriginal Affairs which say that Albert Newland was Arthur Newland's son. The documents concern Albert's removal from Arthur to the Mt Margaret Mission and to the Moore River Settlement. They also contain the personal history of Arthur Newland, described above. Both of those aspects of the set of documents say that Arthur is or is reported to be Albert's father. It appears that when Albert was taken to the Mt Margaret mission, he had with him a letter from Arthur asking that Albert be cared for, or at least written on Arthur's behalf.
276 Counsel for the State also put to Mrs Strickland an application for social security that Albert Newland made in which his father was listed as Arthur Newland. He also put one of Tindale's genealogies to Mrs Strickland, which records Albert Newland as Arthur Newland's son. Mrs Strickland maintained her disagreement with that proposition throughout, saying, 'I mean, they can write whatever they want to write' (ts 134, 135). She said she was taking her father's word and that the relationship between Arthur Newland and Albert Newland was non-existent. Her explanation for Albert having the surname Newland was that it was 'the surname that [Rodolphe Samuel Schenk, founder of the Mt Margaret Mission] wrote when he put him in the mission' (ts 135-136), recalling that Joyce Nudding's evidence was that Arthur Newland only took Albert there as a favour to Bessie Watson, which Mrs Strickland also said in her evidence.
277 Counsel for the State put to Mrs Strickland that Albert Newland spent quite a lot of time with KB when he was younger. To that, Mrs Strickland said she did not know, noting that KB died in 1945. But, she said, she did not believe anything Albert Newland said. When cross examined later by counsel for the NP respondent, however, she was less categorical, saying only that Albert may have spent time with KB. She said all she knew was that Albert was put in the Mt Margaret Mission, but speculated, 'It might have been one time that he spent a few days a week with them, but they weren't allowed out of the mission'. When asked whether she would accept that meant that Albert would have known KB and how she spoke, Mrs Strickland said:
MARJORIE STRICKLAND: I don't know. I really don't know. I don't think I'd accept that. I'd be really - I'd be more likely not to believe that because knowing Albert Newland, he didn't know too much about Maduwongga. He didn't even know too much about Dad.
MR EDWARDS: Right.
MARJORIE STRICKLAND: He knew absolutely nothing about him.
278 However in Wongatha, Mrs Nudding and Mrs Strickland gave evidence that Albert Newland would spend time with Arthur Newland, Eva Quinn and Norman Forrest, according to Mrs Nudding during school holidays and according to Mrs Strickland '[f]rom time to time' (WT 8032, WT 7639-40).
279 In Wongatha Phillip O'Donoghue, who was Violet Quinn's grandson, gave evidence that he had a lot to do with Albert Newland, whom he considered to be his uncle. He said that Albert was Arthur Newland's son, and he said that his grandmother (Violet) told him that Albert was Arthur Newland's son, as well as knowing from time he spent working with both Albert and Arthur Newland.
280 Hector O'Loughlin's evidence was that Arthur Newland was not Albert Newland's biological father, but he gave no source for that knowledge. Cheryl Cotterill's evidence was that Arthur Newland was Albert Newland's father, but she too gave no source of that knowledge.
281 It is simply not possible on the basis of this evidence to say whether Albert Newland was Arthur Newland's biological son. Nor is it necessary. The finding I make is that KB, Bessie Watson and Arthur Newland, at least, recognised Albert Newland as Arthur Newland's son. I make that finding because of the following matters:
(1) Albert Newland's own firm evidence in Wongatha was that he was Arthur Newland's son.
(2) Mrs Nudding's and Mrs Strickland's equally firm denials in this proceeding were clearly influenced by Albert Newland's decision in Wongatha to support what they perceived as a competing claim group.
(3) They had before that included Albert in the Maduwongga claim group as their brother, and that was also reflected in the anthropologist's report that supported the then claim.
(4) Their contemporary denials were made in the face of clear documentary evidence that they had previously recognised Albert Newland as their brother, and their explanations as to why they removed him from the claim group were unsatisfactory.
(5) Apart from Mrs Nudding's and Mrs Strickland's evidence on the point, which is unreliable, there is no cogent evidence against the proposition that Albert was Arthur's son. And Mrs Nudding's and Mrs Strickland's hearsay evidence that Arthur had denied paternity was general and unpersuasive.
(6) There is no basis to disbelieve or discount Albert's own evidence that he spent time and travelled around with KB and Arthur Newland when he was growing up, which itself suggests recognition of family ties (I accept that this could have been as part of wider group, but that is not the tenor of Albert's unchallenged evidence in Wongatha). Mrs Strickland's equivocal evidence to the contrary was unpersuasive.
(7) Phillip O'Donoghue, Hector O'Loughlin and Cheryl Cotterill knew Albert as Arthur's son (albeit not necessarily his biological son), and Phillip O'Donoghue in particular had spent time with Albert.
(8) It is supported by the account of Albert's mother, Bessie Watson, as recorded by the Department of Native Affairs.
282 What is significant for the purposes of this proceeding is that Albert Newland was recognised as Arthur Newland's son by key persons around him, including KB herself and Arthur Newland. That being so, one would expect that if they identified themselves as part of a Maduwongga tribe, they would have been likely to communicate that to their grandson and son. That makes his evidence about the existence or lack of a people called the Maduwongga and their customs significant. It also gives more weight to the rest of his evidence as someone who could have, but did not, claim to be Maduwongga. And it means that the resistance by Mrs Nudding and Mrs Strickland to any recognition of Albert Newland as their brother reflects poorly on their credibility. So too does the way they refused to accept matters that were plain on the face of their own native title claim documents.
283 Mrs Nudding was born on 26 April 1948 in Leonora. Her Aboriginal name is Ninny. It means 'small'. Her uncle Jessop Sullivan gave it to her because he thought she looked like a little rabbit.
284 Mrs Nudding's parents were Lallie Akbar and Arthur Newland. Lallie Akbar was a Walyen woman. Mrs Nudding said in evidence that her mother's country was to the east of Maduwongga country, around Burtville, Laverton, Murrin Murrin, Morgans (being the place of the Mt Margaret mission), Linden and Eucalyptus.
285 Mrs Nudding's paternal grandmother was of course KB. KB had died by the time that Joyce Nudding was born. As mentioned, there was some dispute about who her biological paternal grandfather was - it was either Walter Newland or Jack Quinn, both white men - and whether or not Arthur Newland had been adopted by Walter Newland. Mrs Nudding and Mrs Strickland understood that Walter Newland came to the Edjudina area in 1888, before the gold rush, and was one of the first pastoralists in the area.
286 Joyce Nudding lived with her parents and with her sister Mrs Strickland in Laverton between the ages of about four and nine years old. They moved to Menzies and lived there until Joyce was about 15 years old and then she went to live at Kalgoorlie to attend high school. Other than a time at Esperance, she has since lived at various Goldfields locations, including Coolgardie, Kanowna, Kalgoorlie and Boulder, where she has lived for over 30 years. Her evidence contained little information about her work history, but it appears that she has worked as a cook and at a hotel, and unlike her sister Marjorie did not receive a tertiary education.
287 Joyce met Albert Nudding in Esperance in 1964 and she married him in Kalgoorlie in 1966. Albert Nudding is originally from Ooldea in South Australia. They have four children (one deceased) and ten grandchildren and three great-grandchildren.
288 Mrs Strickland was born in Coolgardie, in stables near Coolgardie Gorge, on 29 January 1950. The old people gave her the Aboriginal name Coonana Muckeri, but the evidence does not give an English translation of that. In cross examination Mrs Strickland was unsure as to the source of that name or which old people gave it to her.
289 Mrs Strickland's father was Arthur Newland and her mother was Lallie Akbar. The details of her grandparents are therefore the same as for Mrs Nudding. Mrs Strickland's evidence about Lallie Akbar's Walyen country was consistent with Mrs Nudding's evidence on that subject, although she did not mention Morgans and said that Linden was where Lallie Akbar was born. Mrs Strickland claims to be Maduwongga by virtue of her biological descent from Arthur Newland and from his mother and her grandmother, KB.
290 As has been said, Mrs Strickland's family lived in Laverton before moving to Menzies. Mrs Strickland then went to Kalgoorlie at about age 13, so she could go to high school. After high school she worked at Ora Banda, and then Leonora, and then for the Native Welfare Department in Kalgoorlie.
291 In 1978 Mrs Strickland travelled to Perth to study at Curtin University. In about 1985 she obtained a degree as the first Aboriginal social worker to graduate in Western Australia. She worked as a social worker in Perth and lived (primarily) in Perth until she returned to Kalgoorlie in 1995. She has lived there ever since.
292 Mrs Strickland has four living children, 12 grandchildren and 13 great-grandchildren.
293 Mrs Strickland learned a lot of what she says is her knowledge of Maduwongga traditional laws and customs, language and culture from her father, Arthur Newland. She also learned from her aunties and his sisters, Eva Quinn and Lena Judd. She did not learn as much from her other paternal aunt, Violet Quinn, because she found her to be a bit firm.
294 She also learned from Lallie Akbar's Walyen cousin, Ranji McIntyre who sometimes took her out on Walyen country when she was young. He was a senior Law man. According to Mrs Strickland, Mr McIntyre spoke of having known KB and Norman Tindale. Other old people on her mother's side from whom she learned things included Winnie Burton and 'Leo Thomas's grandmother, who was a cousin to my mother', whom she called Auntie Rosie, and who was the mother of Doris Thomas. It will be mentioned below that Ms Thomas, from the Walyen side of the family, taught Mrs Nudding certain things. Mrs Strickland agreed that Doris Thomas was important in her life.
295 Christine Newland is the youngest daughter of Arthur Newland, having a different mother to Mrs Nudding and Mrs Strickland. A genealogy tendered by the Maduwongga applicant shows her as having been born in the 1970s. According to Mrs Strickland's evidence in cross examination, Ms Newland 'wants nothing to do with' the Maduwongga native title claim, but Mrs Strickland accepted that she would be a member of the claim group if the claim was successful, as did Mrs Nudding in Wongatha. It was clear from the testimony about her in this proceeding and in Wongatha that Mrs Nudding and Mrs Strickland were reluctant to discuss her and there is little contact between them and Ms Newland.
Stanley Forrest and May O'Brien
296 The above named people were in the same generation as Mrs Nudding and Mrs Strickland and were potentially descended by adoption from KB. But Mrs Nudding and Mrs Strickland did not accept that descent and it is not necessary to make findings about it for the purposes of the separate question.
297 I will now turn to consider the biographical evidence about KB in more detail, focussing on the contested question of where she (and her parents) were born. There will inevitably be some overlap between this topic and other sections of this judgment, especially Section VIII on Maduwongga country. It will be apparent to the reader by now that it is not possible to divide the judgment up neatly into discrete subjects.
298 The Maduwongga applicant submits that KB and her parents were each born in Edjudina. This is essential to its overall claim. That is because of its reliance on a model developed by Dr Mathieu of how native title rights and interests in relation to the claim area arose during KB's time. That model will be considered in detail in Section XI below, but for now it is enough to say that Dr Mathieu accepted in cross examination that if KB had not been born in Edjudina, she would not have acquired any rights under the model. Dr Mathieu qualified that to some extent in re-examination by saying that if KB's parents had been born at Edjudina, that too would give her rights in that country. But if neither KB nor her parents were born at Edjudina, she can have gained no rights to country there under the normative system of laws and customs identified by Dr Mathieu.
299 The relationship between those matters and the separate question is not a direct one. As I have emphasised, the separate question will not determine whether KB and her descendants held and hold native title rights and interests in relation to the Maduwongga claim area. Instead the issue is: under the normative system of which society did she hold such rights? But indirectly, the issue of KB's birthplace is still crucial to the Maduwongga case on the separate question. That is because the normative system identified by the Maduwongga applicant is the normative system that Dr Mathieu has described. If neither KB nor her parents were born at Edjudina, she could not have acquired the rights she undoubtedly held to country in that area by way of that normative system. If so, the answer to the second part of the separate question - did KB hold rights and interests under the normative system of traditional laws and customs of a distinct land-holding group of which her descendants are the only identifiable surviving members - would be 'no'.
300 It is useful to recall at this point that the onus of proving that KB did acquire rights under that normative system, and so the onus of proving that she and/or her parents were born at Edjudina, is on the Maduwongga applicant. If the evidence does not establish that it is more likely than not that she or her parents were born there, the positive aspect of the Maduwongga applicant's case fails, and the way is open for the NP respondent to seek to discharge its own burden of proving that KB acquired rights and interests in her country under the normative system of the Western Desert.
301 In that regard, while the NP respondent submits that the question of whether KB was born at Edjudina is an important aspect of KB's associations with the overlap area, a finding that KB was not born at Edjudina is not a necessary element of success for the respondents. If they are right to contend that the normative system that pertained in the Edjudina area during KB's lifetime was the normative system of the Western Desert, then it would be possible that KB acquired her rights and interests in the claim area under that system, at least in part because she was born there (see the 'multiple pathways' described at [46] above).
Lay evidence about KB's birthplace
302 In evidence given at Hobble Gap, Joyce Nudding said that KB 'was from around here' (ts 53). But in cross examination she said that no one ever told her where KB was born. She only knew that 'she lived most of her life around here' (ts 294-295). Mrs Nudding said she never heard anyone tell her that KB was born a long way away.
303 During cross examination Mrs Strickland accepted that it was possible that KB's mother and father came from further east than Maduwongga country, out towards the South Australian border. But no weight should be put on that concession, as Mrs Strickland asserted no direct knowledge of her family history from that earlier time and did not purport to add anything to what can be derived from the ethnographic records such as the Tindale materials.
The ethnographic records about where KB was born
304 So the lay evidence, unsurprisingly, is sparse. The Maduwongga applicant's contention that KB and her parents were born at Edjudina is based substantially on the ethnographic material from Tindale's expedition in 1939. Some of that material has already been mentioned, but this section will describe it exhaustively.
305 According to the Maduwongga applicant, on the basis of Tindale's records KB was born at Edjudina in about 1880, and her father Johnny was also born there in about 1860. KB lived within what is now the Maduwongga claim area and gave birth to all her children within that area. On this account of the evidence, she identified the boundaries of her traditional country as between the regions of Edjudina, Coolgardie and Ullaring. The evidence about the boundaries of that country is considered below in the section on 'Mapping Maduwongga country'.
306 The Tindale materials relevant to the question of whether KB was born at Edjudina are as follows:
(1) A genealogy sheet, numbered 110, dated 6 May 1939, which Tindale apparently compiled in the first instance at Southern Cross, but added to on 16 May 1939 at Mt Margaret. This is reproduced at Annexure B to these reasons. This shows KB's father as 'Johnny fb Edjudina WA' and her mother as an unnamed 'FB' (i.e. 'full blood') with the note 'Edjudina district' (there is also an additional pencil note saying 'dead'). It shows KB as having siblings Jimmy and Minnie, and shows her children Eva, Violet and Arthur, and also Albert Newland, as were all referred to earlier in this section. A note below Jimmy's name says 'of Coolgardie or Karonie'. It also contains the following note in the bottom right hand corner (all punctuation as in original, other than square bracketing):
N. 2146 In my country no 4 class system; 'a man from Laverton picked out Taroro for me by looking at my face; there is no law like that in my country' - apparently[?] no tjukur either is known to [KB] Later In light of information at Mt Margaret this is the zone of transition from 4 to no class
N2146 is the number that Tindale assigned to KB on this sheet, data cards and other genealogy sheets, so the note appears to record her words. The words ''Madu 'woŋga' appear at the top of the entry for KB (running off from the number 2146 given for her). Laverton is in the Western Desert north of the Maduwongga claim area and just within the NP claim area.
(2) Another genealogy sheet, numbered 118 and dated 6 May 1939, also apparently compiled by Tindale at Southern Cross. This is reproduced at Annexure C. It contains an entry for '[KB] of Laverton' (Exh 32 p 149). Some further writing under that is 'previously [word unclear] see sheet 110'. As will appear below, the expert witnesses proffered different suggestions as to what the unclear word is. I find that the word is 'married' because that is what it looks like, and the entry for KB on sheet 110 shows her as having been previously married. So it is more likely than not that the entry says:
[KB]
of Laverton
previously married
see sheet 110
I do not accept the Maduwongga applicant's suggestion that the word 'previously' may pertain to 'of Laverton' rather than 'married', as the interpretation I have given makes sense, given the reference to sheet 110 (it was also Dr Mathieu's reading of the word at Mathieu I para 298). Finally, the words 'Madu woŋga' appear at the top of this entry for KB (again running off from the number 2146 given for her).
(3) Genealogy 118 also contains the following note:
Madu woŋga.
Linden, Mulline, Pinjin, Kanowna, & [nearly/rarely?] to
Menzies. Came from East. see also sheet 110
There is an arrow leading from this which points to the entry in the genealogy for KB. There is also an entry for her husband Tommy Bluegum which appears to have the words ''Madu woŋga' running off it but later crossed out with the word 'error' beneath, and text saying 'Kanmara. N of Nullarbor Plain' and on the next line 'S. Aust.'.
(4) KB and Arthur Newland also appear on genealogy sheet 173, apparently compiled at Mt Margaret on 16 May 1939, but this contains nothing that adds to or confirms the salient information from other sheets and data cards that is described here.
(5) A data card for Arthur Newland. This appears to have been taken by Tindale on 6 May 1939 at Southern Cross. The information on the card can be inferred to have come from Mr Newland. It notes his mother as '[KB] fb. Edjudina W.A.' (Exh 33 p 159). The note 'fb' indicated a 'full blood' Aboriginal person.
(6) A data card for KB which also appears to have been taken at Southern Cross on 6 May 1939, although there are also entries placed at Mt Margaret and dated 16 May 1939; it is not possible to tell which entries were made on which date. In fact it appears to me that there are at least three different cards in evidence in relation to KB that were prepared on 6 and 7 May 1939, but nothing turns on this and the parties tended to refer to these in the singular, so I will refer to this set of cards all dated 6 May 1939 as KB Card A. This notes KB's place of birth as:
Burtville, W.A.
(Edjudina)
Burtville was a town about 100 km north of the Maduwongga claim area border, about 125 km north of the place known as Edjudina, and relatively close to (about 30 km from) Laverton, although there is also some suggestion in the evidence that Edjudina was the name or description of a district, as well as a specific place. The data card also shows KB's (unnamed) mother as being born in 'Edjudina dist., W.A.'. This data card designates 'Maduwoŋga' as the 'Tribe' for KB, her unnamed mother and for her daughters Violet and Eva.
(7) Another data card for KB (KB Card B), apparently taken at Southern Cross the next day, 7 May 1939, which shows her place of birth as 'Burtville, WA'. It designates her father as 'Johnny fb. Edjudina, W.A.' and her unnamed mother as 'FB. of Edjudina district'. It also contains the following note:
talks same as Andrew N2143
not Ko:ara I say 'madu
I am 'Madu woŋga We came from
E. The Koara now live in
same country but they belong more
to Kanowna side.
It appears that Tindale himself wrote out this card and made this entry.
(8) Tindale's journal entry for 6 May 1939. This says (Exh 34 pp 180-181):
Worked all day & found some interesting people. Continued on Sunday also.
…
Maduwoŋga are around Kanowna, extending to Pinjin Linden in the North occasionally to Murrinmurrin & rarely to Menzies (recently). They originally came from the spinifex country to the east of their present location. They drifted in at the time of the first gold rush (middle 1890s).
The sentence 'Continued on Sunday also' indicates that Tindale made this entry after Saturday 6 May 1939 and also after Sunday 7 May. Murrin Murrin is outside the Maduwongga claim area and inside the NP claim area: see [611] below. Dr Morton, however, ascribes it to a 'slip of the pen' and thinks that Tindale meant to write Mulline, which is to the west of Menzies and 'roughly at the north-western limit of what Tindale regarded as Maduwongga territory' (Morton II fn 20). That evidence is favourable to the Maduwongga case and I accept it.
307 That is all the primary evidence from the Tindale materials created in 1939 which bears on KB's birthplace. To that may be added what Tindale said when he published the results of his investigations, in 1940 and again in 1974. In 1940 Tindale wrote (in Norman Tindale, 'Results of the Harvard-Adelaide Universities Anthropological Expedition, 1938-1939. Distribution of Australian Aboriginal Tribes: a Field Survey' (1940) 64(1) Transactions of the Royal Society of South Australia 140):
'Madu'woŋga, 'Jindi Maduwonga
'Madu'woŋga, 'Jindi Maduwonga
Loc.: From Pingin west to Mulline; from just south of Menzies to Kalgoorlie, Coolgardie, Kanowna, Kurnalpi, Siberia (statements suggest protohistoric movement from east).
308 In 1974 Tindale wrote (in Aboriginal Tribes of Australia at p 246):
Maduwongga 'Maduwoŋga
Loc.: From Pinjin on Lake Rebecca west to Mulline; from a few miles south of Menzies to Kalgoorlie, Coolgardie, Kanowna, Kurnalpi, and Siberia. Statements suggest a protohistoric movement from the east displacing Kalamaia people west to beyond Bullabulling. Their language was called ['Kabəl] and it was understood as far west as Southern Cross.
Coord.: 121 °30'E x 30°15'S.
Area: 9,000 sq. m. (23,400 sq. km.).
Alt.: Jindi (valid alternative), Yindi, Maduwonga, Kabul (language name), Julbaritja (i.e., 'southerners,' name used by Ngurlu).
Ref.: Garnier in Hugenin, 1902; Davidson, 1938; Tindale, 1940, 1966 MS.
Some observations on the ethnographic material
309 The Maduwongga applicant's expert witness on the one hand, and the respondents on the other, put very different interpretations on the significance of these materials. Before considering those interpretations it is convenient to make some observations on what can be taken from them. This goes to matters not just relevant to KB's birthplace but also to wider questions about the extent (and existence) of 'Maduwongga' country and the origins of the people to whom Tindale referred by that name.
310 First, for many of the references to places on the genealogies and the data cards, there is no clear identification of them as birthplaces. For example, to say that KB was 'of Laverton' could mean that she was born there, but it could mean that she lived there at the time of taking the genealogy or data card, or that she was associated with Laverton in some other way. I will consider this point further below. In addition, it has already been mentioned that Eva Quinn's data card says she was born in the Edjudina district but all the other evidence of the Maduwongga applicant was that she was born in the Menzies region. Evidence described below suggests that Menzies was not part of the Edjudina district, casting doubt on the reliability of birthplaces shown on the data cards.
311 Second, and as a corollary, at only three points in these materials are place names expressly given as KB's birthplace, or that of her parents. KB Card A places KB's birth in 'Burtville, WA (Edjudina)'. KB Card B places her birth just in 'Burtville, WA'. The third reference, on KB Card A, places KB's mother's birth in 'Edjudina dist[rict], W.A.'. None of them unequivocally place KB's birth at the place known as Edjudina, situated some 20 km within the north eastern border of the Maduwongga claim area.
312 Third, the entry in the right hand corner of genealogy sheet 118 about 'Madu woŋga' appears to be recording what KB told Tindale. There is no reason to doubt that the place names given are KB's description of her country or her 'run'. A run was described by Mrs Strickland in cross examination, as simply where a person 'usually goes … places that they frequent' (ts 103). Mrs Nudding described a run as 'like where you go round - round and round in the same area all the time'. She accepted her father's run was 'the places he went and lived' (ts 238). As for the phrase 'Came from East', it is possible that she just meant east of Southern Cross, where her interview with Tindale took place, but it is also possible that she was referring to a particular area or region that is located east of Southern Cross. It might be difficult to choose between these possibilities if this were the only piece of evidence about where KB or her people came from, but it is not (see the fifth and sixth items below). And there is no basis to think (as Dr Mathieu suggests) that KB was referring to the eastern part of any area, such as Maduwongga country; that is mere speculation.
313 Fourth, the entry on KB Card B which says that KB 'talks same as Andrew N2143' is significant. 'Andrew N2143' is Andrew Warrell, a man from the Laverton district who was interviewed on 7 May 1939. According to Morton II (para 50), the list of words shown as a vocabulary taken from Andrew on another genealogy sheet 121 is 'unmistakeably Western Desert language'. So Tindale is identifying KB as a speaker of that language, or possibly KB identified herself that way.
314 Fifth, the most logical interpretation of 'We came from E' on the same role is that KB is saying that she and her people came from the east.
315 Sixth, Tindale's journal entry for 6 May 1939 appears to represent Tindale's understanding of the origins of the tribe he took to be called Maduwongga, soon after he had spoken to the relevant informants, including KB. This says quite clearly that the 'Maduwongga' came from spinifex country to the east of area where they were presently found. However as will be described, Dr Mathieu considers that this understanding recorded by Tindale was mistaken.
316 Finally, there is Tindale's interpretation of the data in his published materials. These too say that the Maduwongga came from 'the east' although not categorically, the proposition being introduced on both occasions by 'Statements suggest …'.
317 It is now necessary to consider in some detail the differing interpretations of the above data offered by the two expert witnesses, Dr Mathieu and Dr Morton.
Dr Mathieu's interpretation of Tindale's materials about KB's birthplace
318 In this section I will examine Dr Mathieu's reasoning to support the view she summarises in the Expert Conference Report (prop 1.2(b)):
I think KB was born at Edjudina on the basis of the family history, information that was provided to Tindale and on the basis of anthropological precedence whereby preferably children are born in their fathers and mothers district and both of KB's parents were born in Edjudina. Going from family oral history, Tindale's data cards, genealogical material and publications.
319 The supporting reasoning exposed in Dr Mathieu's reports is, with respect, quite discursive and digressive and it may help orient the reader to offer a summary at the outset of what follows, namely:
(a) Dr Mathieu's opinion is based substantially on the proposition that the places attributed to KB and her parents in Tindale's materials are birthplaces, but nowhere does she provide evidentiary support or other justification for that proposition;
(b) to the extent that such attributions are inconsistent with her view - for example the association between KB and Laverton found on sheet 118 - Dr Mathieu discounts them, chiefly on the basis that there were section systems operative in the relevant places, but KB said that there was no section system in her country and she was only assigned tharruru by a man from Laverton;
(c) at certain points Dr Mathieu's reasoning is also based on an assumption that asserted laws and customs about where a person should be born have in fact been followed;
(d) apart from that, in order to attempt to explain the references in Tindale's notes to KB or her people having come from the east, Dr Mathieu proffers a reconstruction of how Tindale came to make what is, in her view, a mistake; and
(e) the explanations she arrives at turn out to be reconstructions of what Tindale would have learned or could have learned had he attended to the data Dr Mathieu favours, rather than real attempts to engage with the data he did record.
320 In Mathieu I, Dr Mathieu commences her most direct consideration of Tindale's materials (in Part Three of Section Two) by reference to questions about it that were put by Dr McDonald, the anthropologist whom the Maduwongga applicant called in Wongatha. The questions he apparently posed that are relevant for present purposes are whether the Maduwongga originally occupied the area shown by Tindale as 'Maduwongga tribal territory' and whether the Maduwongga came from the east and displaced the original occupants, the Kalamaia, to the west.
321 Interpretation of phrase 'came from the east': Dr Mathieu notes that 'Tindale was no doubt told by his informants that they came from the east' (Mathieu I para 279). While noting Dr McDonald's possible explanation that this may have just meant east of Southern Cross, Dr Mathieu says at this point that 'the statement "Came from east" does not appear sufficiently incidental for a single proposition to settle the issue': Mathieu I para 279. Dr Mathieu considers that Dr McDonald did not (Mathieu I para 283):
provide an entirely satisfactory answer for the discrepancies between the geographical data Tindale published in 1940 and 1974 regarding the tribal map of Maduwongga country and the geographical data he entered in his field notes and in the genealogies of 1939 and which placed the Maduwongga east of Edjudina.
Those discrepancies will be described in Section VIII below, concerning Maduwongga country.
322 Posited chronology of records: A little later in Mathieu I (at para 292ff), Dr Mathieu reconstructs chronologically the process of Tindale making his field notes and genealogy sheets. She does so on the basis of the dates given on the materials as well as the apparently sequential numbering of the genealogies. She concludes that on 6 May 1939, Tindale spoke to four of the persons whose data card numbers are noted on the genealogies, namely KB, her husband Tommy Bluegum, Arthur Newland and his then wife Norah Kunda. (As an aside, Albert Newland is also given a data card number on genealogy 110 but no party sought to make anything of this.)
323 But, Dr Mathieu goes on to say, 'in his diary entry dated 6 May, Tindale did not record who said what to him but instead lumped his four informants (two of whom were not Maduwongga) into a collective they': Mathieu I para 294 (emphasis in original). She then says (at para 295):
On the basis of independent archival data and the Claimants' oral history (see Section Three for the details), I am quite certain that on 6 May 1939, Tindale would have obtained, or at least that he could have obtained, the following information from his informants:
a) Arthur and his mother had a base at Kanowna, their present location, but they originally came from Edjudina in the eastern region of Maduwongga country, where according to family history, [KB] and her relatives had taken refuge during the gold rush (mid-1890s). Arthur and his two sisters were raised in Edjudina.
b) Norah Kunda, Arthur's wife, came from the Western Desert. She was a Waljen from the country between Edjudina, Laverton and Linden, east of their present location.
c) Tommy Bluegum, [KB]'s husband, came from Spinifex country.
d) [KB] was born in Edjudina as was her father, they came from the east, from the eastern regions of Maduwongga country.
e) [KB] and Tommy Bluegum were spending time in Laverton.
Dr Mathieu's interpretation of Tindale's journal entry will be returned to below.
324 Interpretation of locations given on genealogy sheets: The Section Three of Mathieu I to which Dr Mathieu refers contains a detailed description of what can be gleaned from Tindale's genealogical sheets. In this section Dr Mathieu assumes and asserts, but does not establish, that the place names attributed to people such as KB in Tindale's genealogies are birthplaces. Dr Mathieu characterises genealogy sheet 110 as providing 'irrefutable proof' that the Maduwongga claim group members' ancestors occupied the claim area before European settlement (Mathieu I para 408).
325 This seems to be based entirely on the fact that Johnny, his unnamed wife (KB's mother), KB and her siblings (presumably) born before the gold rush brought Europeans to the Kalgoorlie area, are shown on that sheet as being associated with Edjudina, Coolgardie or Karonie (a place 50 km or so south east of the Maduwongga claim area).
326 In the concurrent expert evidence session, speaking of genealogy sheet 110 and the data cards, Dr Mathieu said that KB was asked '"Where are your parents from? Where were they born?" And she said, "Edjudina"' (ts 425). But nowhere does the evidence establish that this is what KB was asked, even ignoring the ambiguity in the posited double-barrelled question, and even assuming that the information came from KB and not, say, her son and Johnny's grandson Arthur Newland. For that matter, in cross examination Dr Morton said that Tindale had asked Arthur Newland '"Where's your mother from and where are your grandparents from?" … It seems to me that he's likely to reply, "They're from Edjudina"' (ts 727). There was no evidence that this was indeed the question Tindale asked either. But what this all shows is that there is no basis in the evidence before me to assume that Tindale was recording birthplaces. And Dr Mathieu's evidence at this point ignores the other location designations elsewhere in Tindale's ethnographic records.
327 No expert opinion evidence or other evidence was put before the Court to establish that the place names on the genealogies were in fact birthplaces. Perhaps it is well known that Tindale, or anthropologists and ethnographers generally, are referring to birthplaces when they attribute places to people on genealogy sheets they prepare as part of their field notes. But that is not something that the Court can just assume, or take on judicial notice. To the contrary, Dr Morton, an anthropologist with deep expertise in this area, did not appear to think that is necessarily what the attribution of places on the genealogy sheets means. In the concurrent expert evidence session he remarked that genealogy sheet 110 'suggests that she was from Edjudina - or actually says … of Edjudina'. His evidence was that 'of Edjudina' is not necessarily 'born Edjudina' (ts 416-417).
328 Indeed, Dr Mathieu herself gave evidence that is inconsistent with any such assumption. In the concurrent expert evidence session she said that despite the statement in genealogy 118 that KB was 'of Laverton', she could not have been born in either Laverton or Burtville because they are areas where one finds section groups, and KB told Tindale that she did not have a section group, but she was given tharruru by a man in Laverton. So according to Dr Mathieu, on one of the genealogies, 'of Laverton' does not mean 'born at Laverton'. Further, if Dr Mathieu's view about the significance and distribution of section groups is correct, that would cast doubt on the clearer attribution on the data cards of KB's birthplace to Burtville, which was near Laverton and so likely also to have been an area where one finds section groups.
329 It is true that in one case, Arthur Newland, the place attributed to him on genealogy 110, Kanowna, is his birthplace. But these examples pointing one way or another are inconclusive. The evidence does not establish on the balance of probabilities that when a place is given for a person on the genealogy sheets, it is that person's birthplace.
330 Edjudina, Laverton and Burtville as 'districts': During the concurrent expert evidence session, Dr Mathieu emphasised the references in the data cards and genealogies that link KB and her parents to Edjudina and Burtville. She said that Laverton and Burtville were 'seen as districts' (ts 420). She also said, 'Laverton and Burtville are regions within which Tindale places Edjudina'.
331 However the evidence about the existence of the various 'districts', let alone their extent and what places they included, was mostly vague. It does appear, at least, that there was a district given the designation 'Edjudina'. That district appears on a map dated 1907 with markings apparently prepared by or based on Bates. On that map the district encompasses Linden and goes north to Lake Carey (just south of Burtville/Mt East) and south to beyond Pinjin. It therefore encompasses Edjudina Station, as one would expect. Its westward extent stops short of Menzies, which is shown as part of a district called North Marmion.
332 Tindale or Birdsell also clearly designate Edjudina as a district on the data cards. They also designate Laverton as a district when they give it as Andrew Warrell's birthplace and also as a place attributed to his father on his data card. While there is no other direct evidence as to the existence or extent of Laverton as a district, of course it must have included the town of that name. On the 1907 map that town is shown within a district called 'Weld', which also includes the town of Burtville. In view of that and in view of the relative proximity of Laverton and Burtville to the northern border of Edjudina district (less than 30 and 20 miles respectively as they are located on the map) it can be inferred that the district that Tindale or Birdsell called Laverton included the town of Burtville. There would have been no room for some third district between those towns and Edjudina District.
333 As for Burtville district, there does not appear to be any reference to it as a district in the documentary evidence. All we have is Dr Mathieu's assertion, which is echoed in Morton II, which says that the town of Burtville also gave its name to a larger local district. It may be that Burtville was yet another name for a district contiguous with or similar to the district shown as Weld on the 1907 map. Dr Morton also gave evidence that these district names changed over time. But there is no basis in the evidence to think that the Burtville district included Edjudina Station.
334 Assumed following of rules and customs: Dr Mathieu's opinion about birthplaces also seems to be based in part on assumptions that rules and customs she has identified were in fact followed. (See further below at Section XI regarding those rules and customs.) She says (Mathieu I para 414, see also at 402):
Given the rules of patrilineality, patrilocality and exogamy, we should expect to see Jimmy and Minnie, [KB]'s siblings, born if not at Edjudina, at least in the eastern region of the Claim Area - and in fact Karonie, where Jimmy was possibly born, is located to the south of the eastern region.
335 Similarly, in the Expert Conference Report, in connection with the birthplace of KB's parents after referring to the places attributed to KB's parents in Tindale's materials, Dr Mathieu says (Exh 26 prop 1.3(a)):
Furthermore, KB's parents are the only persons of that generation (born ca 1860) who are associated with Edjudina in Tindale's records dealing with the predecessors of the Maduwongga and Nyalpa Pirniku. There is a general customary expectation across many Aboriginal Australian societies to be preferably born in your mother or fathers [sic] district.
This seems to be enlisted to support the view that KB was born at Edjudina. As Dr Morton puts it in the Expert Conference Report, it is purely an assumption that KB was born on her father's or her mother's country. Nor can the fact that Jimmy was born at Karonie (if it is the case, which is not clearly established) by itself lend any support to those assumptions, especially since it is outside the Maduwongga claim area.
336 Finally, I have quoted at the beginning of this section Dr Mathieu's view that accepting that KB was born at Edjudina is based in part on 'anthropological precedence whereby preferably children are born in their fathers and mothers district and both of KB's parents were born in Edjudina'. However all this, of course, assumes that these rules and expectations were acknowledged and were followed. Those assumptions cannot provide support for their own correctness, nor can they provide support for the existence or content of the rules. That is even more so when, at other points, Dr Mathieu enlists what she says is the adaptability of tradition in order to explain how the patrilineal rules she identified among the Maduwongga in Johnny's time and before it became ambilineal (both on father's and mother's side) once there were no longer any men of the Maduwongga line: see Section XI below.
337 Interpretation of Tindale's journal entry: To come back, then, to Dr Mathieu's explanation of the statement in Tindale's journal entry dated 6 May 1939: 'They originally came from the spinifex country to the east of their present location. They drifted in at the time of the first gold rush (middle 1890s)'. Her theory is based on the proposition, already adverted to, that Tindale interviewed four relevant people on 6 May 1939: KB and Arthur Newland and their spouses who were desert people, Tommy Bluegum and Norah Kunda. These, she says, Tindale 'lumped … into a collective they': Mathieu I para 294 (italics in original).
338 That is a possibility, but there is little to support it. Dr Mathieu suggested that Tindale said in his journal entry dated 6 May 1939 that he had worked all day, so he may have been tired and made a mistake in the journal. But this overlooks the fact that the same entry says 'Continued on Sunday also', indicating that the entry was in fact made some time after 6 May (and Sunday 7 May - see [306(7)] above). Dr Mathieu also pointed to the fact that Tindale wrote ''Maduwoŋga' next to Tommy Bluegum's entry on genealogy sheet 118 and then crossed that out and appears to have written 'error' under the crossing out. This is not inconsistent with a theory that at the time of the journal entry, Tindale was labouring under the misapprehension that Tommy was a Maduwongga person, and did not go back to correct that in his journal when he later discovered his mistake. But there is no indication, on that hypothesis, of when he did discover his mistake, and no reason to think that he did so after the day, apparently close to but not on 6 May 1939, when he made the journal entry. Unlike sheet 110, sheet 118 has no additions dated after 6 May. So whether Tindale was indeed labouring under such a misapprehension when he made the journal entry is unknown.
339 There is another genealogy sheet, numbered 173, which Tindale appears to have compiled at Mt Margaret on 16 May 1939. Dr Mathieu speculates that it may have been on this occasion that Tindale learned that Tommy Bluegum was not Maduwongga, but her only basis for that is speculation that because Tommy was a 'notoriously violent man', KB may not have dared contradict him in his presence but may have been willing to do so at Mt Margaret, when Tommy appears not to have been present (Mathieu I para 300). This opinion is significantly undermined by Dr Mathieu's subsequent concession in cross examination that KB was not at Mt Margaret on 16 May (see above at [170]). In any case, this course of conjecture does nothing to support the idea that in the journal entry Tindale muddled Tommy and KB together as 'Maduwongga'. It is, rather, a course Dr Mathieu is compelled to take in order to support the view which she already holds.
340 In Mathieu I, Dr Mathieu then concludes of Tommy Bluegum (Mathieu I para 300, emphasis in original) that:
there is no argument that his personal information, the fact that he was originally from Spinifex country, ended up in Tindale's diary entry of 6 May 1939 as 'They were originally from Spinifex country'. And this is what appeared in Tindale's published statement of 1940.
For reasons just given, I do not agree that there is 'no argument' about this. The reasons Dr Mathieu gives to displace the plain meaning of the journal entry are unconvincing.
341 As for Dr Mathieu's speculative reconstruction of what Tindale 'would have obtained, or at least that he could have obtained', that is simply an assertion of what she thinks is the true position based on the other evidence. It does not involve any attempt to reconcile that evidence with the journal entry. Nor does it involve any attempt to explain why the evidence that Dr Mathieu favours is preferable to the evidence that she does not favour. The description I have given of the evidence she favours, as found in Section Three of Mathieu I, shows that its superiority is hardly self-evident.
342 Interpretation of data card: Nor does Dr Mathieu's theory as expressed in Mathieu I grapple with the other indications in the genealogies and data cards, apparently attributed directly to KB, that her people came from the east. She did give evidence in the concurrent expert evidence session in relation to KB's apparent statement, recorded on KB Card B described at [306(6)] above, 'We came from E'. Dr Mathieu's opinion was that '"We came from Edjudina" would be just as valuable and valid as "east"' (ts 423). In cross examination she was more equivocal, saying that it could mean either 'east' or 'Edjudina' (ts 522). But I do not accept that. 'E' is a natural way of abbreviating the cardinal point of the compass. 'Edjudina' on the other hand is not a common word and it would be odd to abbreviate it to 'E'. Dr Morton's evidence was that Tindale used an 'E.' consistently to mean 'east'. And, of course, 'east' is what Tindale wrote on genealogy sheet 118 and in his journal entry for 6 May 1939.
343 Interpretation of Tindale's journal and published material: To return to Dr Mathieu's first report, she then goes on to posit (at Mathieu I paras 301-305, emphasis in original) that:
[Tindale] had to rely on his field notes.
Tindale no doubt found the statements: 'They originally came from the spinifex country to the east of the [sic their] present location. They drifted in at the time of the first gold rush (middle 1890s)' especially confusing in light of the note on the genealogical sheet 'Came from east' because:
• If by their present location, Tindale meant their tribal country, how could the Maduwongga have come from the east to establish an ancestral country between Edjudina and Coolgardie in the mid-1890s? How could the Maduwongga have migrated to their ancestral country in the midst of the gold rush? And this especially in light of the fact that Tindale's other data placed at least one other Maduwongga person in the western region of Maduwongga country before the gold rush, Mary who was born in Kalgoorlie, and potentially Jimmy who was possibly born in Coolgardie (sheet 67 and sheet 110).
• If by their present location, Tindale meant their present run, between Menzies and Linden, then how could the Maduwongga have come from the east in the mid 1890s to end up beyond the eastern region of their own tribal country which lay to the west of their run?
• And how could Tindale explain that the Maduwongga had drifted to their tribal country at the time of the gold rush when [KB] and her father Johnny were born in Edjudina, in the east of their tribal country, decades before the gold rush?
344 This is perplexing. There is no apparent reason why Tindale would find a statement that the Maduwongga originally came from country to the east of their present location confusing in light of his note elsewhere 'Came from east'. The two propositions are consistent with each other. It appears that Dr Mathieu is looking for difficulties where there are none: in cross examination she described the statement on KB Card B, 'We came from E' as a 'problem' when in truth, as the cross examiner put to her, it is consistent with the other indications in Tindale's materials that KB or her people came from the east (ts 522).
345 Dr Mathieu's ensuing speculation in her report about different reasons why it would be confusing to Tindale to see that he had said that the Maduwongga came from the east is itself difficult to follow. It seems to be based on an assumed but unexplained ambiguity in the words 'present location', when that phrase is perfectly straightforward and requires no speculation to explain. On its ordinary meaning it refers to the spatial location of the people whom Tindale designated as Maduwongga at the time at which Tindale was writing the journal. In the preceding sentence of the journal entry, Tindale had described that location: 'around Kanowna, extending to Pinjin Linden in the North occasionally to Murrinmurrin [i.e. Mulline] & rarely to Menzies (recently)'. So he is saying that the Maduwongga came from east of that area.
346 There is no need to speculate that Tindale is referring to 'ancestral country' (the first bullet point). From cross examination it appeared that Dr Mathieu was basing that on the fact that in his 1974 map Tindale was mapping the 'ancestral country' of various tribes, but that does not alter the plain meaning of the journal entry he made in 1939 when he was simply gathering data.
347 However Dr Mathieu became insistent during this cross examination that if Tindale put the Maduwongga where he did in 1974, that is because he thought that it was their ancestral country. This conviction even leads her to speculate that he must have had other notes not included in the archive (see [400] below). But as an explanation of the apparent discrepancy between the 1974 map and Tindale's journal entry saying that the Maduwongga 'originally came from the spinifex country to the east of their present location', it is at least equally open to say that the 1974 map is wrong. The reliability of Tindale's mapping is considered in Section VIII below. For now it must be said that if there is a discrepancy between material collected directly from Aboriginal informants in 1939, and material purportedly based on that which was published in 1974, I prefer the former.
348 Nor is there any need to pose the frankly incomprehensible question in the second bullet point from the long quote above. And the premise of the third bullet point involves insistence on the contestable proposition that Tindale's materials establish that KB and Johnny were born at Edjudina.
349 Dr Mathieu then characterises Tindale as 'fuzzing the issue' in his published writings by expressing himself tentatively ('statements suggest') and using the vague term 'protohistoric' which could include the period before the gold rush. She says (at Mathieu I para 306) that 'should the Maduwongga have migrated into their ancestral territories from the east, reason required that they had done so before the gold rush' (emphasis in original). Dr Mathieu then goes on to speculate as to how Tindale could have expressed himself more precisely and, it must be said, more consistently with Dr Mathieu's firm view that KB and her father Johnny were born in Edjudina. But speculation as to what Tindale might have said to support Dr Mathieu's view, but did not say, is of no assistance to the Court. As said at the outset, this conjecture is not a real attempt to engage with all the relevant data Tindale did record.
Dr Morton's interpretation of Tindale's materials about KB's birthplace
350 In Morton II, Dr Morton conducts his own examination of the Tindale archival materials described above. He says that Arthur Newland was likely the main informant for genealogy sheet 110, because he is the lowest number (N2130), implying that Tindale worked with him before anyone else. Dr Mathieu ended up accepting in cross examination that Arthur was likely the main informant for this sheet. For the same reasons, Dr Morton says that Tommy Bluegum was probably the main informant for sheet 118. Dr Mathieu agreed with this too.
351 Dr Morton accepts that the statement on genealogy 118 which he reads as 'Maduwoŋga. Linden, Mulline, Pinjin, Kanowna, & nearly to Menzies. Came from East' is attributed to KB. He also accepts that in relation to the statement on sheet 110: '[i]n my country no 4 class system' (Morton II para 27).
352 Dr Morton points out that KB's birthplace is given on KB Card A as 'Burtville, W.A. (Edjudina)' and on KB Card B as 'Burtville, W.A.'. Apart from the specific place near Laverton, as has been said, Dr Morton says that Burtville also gave its name to a larger local district. KB Card A says that KB's unnamed mother and Eva Quinn were born in the Edjudina district. According to Dr Morton, this makes Tindale's materials equivocal as to KB's birthplace, which may well have been at Laverton or near it at Burtville.
353 In the concurrent expert evidence session Dr Morton pointed out that KB Card B, which just says 'Burtville, WA' for 'Where born', is the same card on which on the same face and in the same hand and ink, KB's own words appear to be taken down ('I say 'madu …' etc). This makes the information more likely to be reliable than the attribution of Edjudina to KB on genealogy sheet 110, where the main informant was probably KB's son Arthur Newland and not KB herself (and where, as has been said, it is not even clear that this was given as a birthplace).
354 Dr Morton goes on to give detail from Tindale's records about Tommy Bluegum, KB's husband at the time of the 1939 interview at Southern Cross and likely the main informant for genealogy sheet 118. The information clearly places Tommy Bluegum as having migrated from somewhere in South Australia. His data cards give his birthplace as variously north of Port Augusta, South Australia, and north of the Nullarbor Plain, South Australia. One data card and genealogy sheet 118 appear to give it a place name of 'Kanmara', which may have been a rock hole. Dr Morton has Tommy coming across the Great Victoria Desert.
355 Tindale had recorded a tribe from Ooldea, where Tommy may have come from, as being known to another tribe as 'Maduwonga'. But, as Dr Morton notes along with Dr Mathieu, while Tindale wrote ''Maduwoŋga' against Tommy's entry on genealogy sheet 118, he later crossed it out and appears to have written 'error' underneath it. Dr Morton suggests that either Tindale considered that that designation was an error or that Tindale thought it was an error to have crossed out that designation. He does not reach a concluded view on which of these possibilities is correct.
356 Dr Morton reads the comments written under KB's entry on the same sheet as saying 'previously incorrect' as showing that Tindale had serious doubts about having written 'of Edjudina' under KB's entry on genealogy sheet 110. But I have found that the comment is probably 'previously married', not 'previously incorrect'. Dr Mathieu also considers that Tindale wrote 'previously married'. I do not find overall that the matters referred to by Dr Morton indicate that as at 6 May 1939 Tindale had doubts about having attributed 'Edjudina' to KB on genealogy sheet 110. But as has been indicated, it is not clear what that attribution meant.
357 Although Dr Mathieu subsequently provided two supplementary expert reports on other topics, she did not address in writing Dr Morton's opinion that the evidence about KB's birthplace is equivocal.
358 In the concurrent expert evidence session, Dr Morton expressed the opinion that KB was not in fact interviewed at the time that Tindale began transcribing genealogy sheet 110, but was spoken to 'rather later on' (ts 426). He infers this on the basis that Tindale gave Arthur Newland the number N2130 on his data card and sheet 110, KB had the number N2146, and there were over 10 people interviewed on 6 and 7 May who were given the numbers in between, and seven genealogy sheets prepared in between sheets 110 and 118 as a result. That is also consistent with the date of 7 May 1939 given on the data card for KB (KB Card B) that gives the information apparently transcribed directly from her words ('I say 'madu …' etc). So, Dr Morton infers, the information on sheet 110 that KB and her parents were from Edjudina came from Arthur Newland, while the information on sheet 118 and the data cards that she came from Laverton (sheet 118) or nearby Burtville (both data cards) came from Tommy Bluegum or KB. Dr Morton's view is that Arthur Newland knew KB and her parents had all been at Edjudina together, but he is not a reliable source for their birth places.
359 In response to this, Dr Mathieu pointed out in the concurrent expert evidence session that the place of birth of one's parents and grandparents is 'a fundamental aspect of traditional laws and customs, and I doubt very much that Arthur Newland, a full grown wati, initiated man, would not know where his parents and grandparents were born' (ts 427). Be that as it may, it does not explain why the record of Arthur Newland's understanding about where his mother and her parents were from is to be preferred to the record of the understanding of KB herself.
360 In the Expert Conference Report, Dr Morton adhered to the view (Exh 26 prop 1.2(b)):
We cannot be very specific about KB's place of birth, but we can say from Tindale's evidence and particularly what KB appears to have told Tindale herself, that KB was probably born somewhere in Spinifex country, East of what is now the Nyalpa Pirniku claim area.
361 At the time of the concurrent expert evidence session, Dr Morton expressed the opinion that KB likely came from somewhere in the Great Victoria Desert, albeit not necessarily from the same area as Tommy Bluegum. He expanded on this in the concurrent expert evidence session as follows (ts 428):
I think the most plausible narrative construction that one can put on all these facts as a history is that KB came into - came in from the east, from the Spinifex, to Burtville or to Laverton, or eventually at Laverton where she got her skin name; that the family - given how young she was, I am also - I think it quite likely that she would have come in with her parents.
That the family at some point has established itself at Edjudina, and where [KB] was involved with one or two of the white workers there and was there for a long time. So I think that the family came in from somewhere in the Great Victoria Desert which is the area east of Laverton and Edjudina, out towards the Western Australian - towards the South Australian border.
But I don't know where. There's no positive evidence saying exactly where they would have come from. All we can say I think is that they were regarded as Spinifex people.
362 Dr Mathieu disagreed with this, pointing out in the concurrent expert evidence session, correctly, that there was no evidence that KB came from the Great Victoria Desert.
363 By the end of his cross examination two days later, however, Dr Morton had revised his view of where KB is likely to have come from originally, reaching the conclusion that the designation of KB on genealogy sheet 118 as being 'of Laverton' is a 'more accurate description of where she came from in some sense or another, rather than Edjudina which is on 110'. This revised view is partly based on an opinion about the meaning of the term 'martu wangka' and Bates's identification of a 'Marduwonga' people at Laverton. Those matters concern the broader question of the origins of KB's people and will be described and considered below in Section XII.
364 In any event they do not affect the essentials of Dr Morton's opinion, which is that it is unclear whether KB or any of her family were born at Edjudina 'in spite of Tindale's data cards stating that she and her mother were indeed born at Edjudina' (Morton II para 63). He is aware of no good evidence to support the suggestion that her parents came from the Eastern Goldfields or more specifically Edjudina 'in light of Tindale's data being in my opinion so problematic'. He considers it likely that at least one, and possibly both of KB's parents came with her from the east to live and perhaps work at Edjudina. This was quite possibly done through Laverton, where KB received her section name. Dr Morton goes on (Morton II para 65, footnotes omitted):
a whole of family movement from east to Laverton, and then on to Edjudina, seems the most plausible historical construction of the facts. Laverton was established in the mid-1890s and by 1900 it had become a refuge for incoming Aboriginal people stressed by drought. I consider that the list of places that Tindale recorded for the Maduwongga - 'Linden, Mulline, Pinjin, Kanowna, & nearly to Menzies' … are most likely additional locations where her family had worked or sought rations.
Resolving the evidence about KB's birthplace
365 At this stage, it is not possible or appropriate to make a firm finding as to whether the Maduwongga applicant has discharged the burden of proving that KB and/or her parents were born at Edjudina, or whether the evidence indicates that she was not born there. As with many aspects of this matter, the conclusions to be reached about one particular issue are dependent on findings and evidence in a range of other areas canvassed elsewhere in this judgment. For example, and in particular, Dr Mathieu's views depend to a significant extent on the coverage of the section system, a subject that is necessarily addressed later. I will return to make findings about KB's birthplace after that.
Other biographical details about KB
366 Turning away from the controversy about KB's birth, some other biographical details for her can be addressed. Her Aboriginal name was Goondair. It appears she also had the name or epithet 'Larrikin'.
367 Evidence was given in Wongatha that Tommy Bluegum was KB's second husband. According to Joyce Nudding, who heard it from Arthur Newland and Eva Quinn, KB had a husband before then who was an old man and who died before she married Tommy Bluegum. That is consistent with the words on genealogy sheet 118 which I have found to include 'previously married'.
368 Dr Mathieu speculates that KB had a 'Maduwongga tribal husband at the turn of the twentieth century' (Mathieu I para 450a). As will be seen, this postulate is important to explain the operation of her model of Maduwongga kinship and rights in land. She does not appear to rely on what Joyce Nudding said in Wongatha. Rather, she refers to 'general anthropological precedent' by which Aboriginal girls were commonly betrothed as infants and did not remain single. She also relies on two articles published in the Kalgoorlie Miner which she says confirm that Tommy fought another Aboriginal man to win KB. But none of that gives any basis to say that KB's first husband was a Maduwongga person.
369 Dr Mathieu goes on to speculate that '[a]ccording to the rules of exogamy, [KB]'s husband necessarily claimed an estate outside of her own estate at Edjudina'. But once again, this assumption cannot help to establish that such rules were acknowledged or followed in this particular case. Dr Mathieu asserts that KB's children Eva, Violet and Arthur were born in the western part of the Maduwongga claim area, although as summarised above the evidence about Eva's birthplace is equivocal and the basis for Dr Mathieu's evidence about Violet's is not clear. If they were born where Dr Mathieu says, that would place their births outside KB's 'estate' around Edjudina, which would be consistent with the customary rules Dr Mathieu has identified (see further at Section XI below). So, she says, there is 'no reason to suspect that [KB]'s first husband was not Maduwongga' (Mathieu I para 450b). But there is, in truth, no evidence that the possible first husband was a 'Maduwongga' person.
370 In a similar act of speculation, Dr Mathieu says (Mathieu I para 452):
It is reasonable to conclude that in the late 1890s, [KB], her sister Minnie, Lena's mother and their husbands walked in Maduwongga country as other Maduwongga families had done before them with the significant difference that whereas they would have hunted and gathered their food, they now visited white men's camps. All the children in this first post-gold rush generation had white fathers, all had Aboriginal names, none had birth certificates, and they, like their older relatives, had no 'family names'. All of these children were raised following Maduwongga customs as those could be exercised under the circumstances, and all of these children would have enjoyed their traditional rights to the whole of their tribal territory (birth estates and spousal estates) if the gold rushes had not interrupted Maduwongga history.
371 As will be seen below, there is ample evidence that KB did count as her run an area around Lake Rebecca which included Edjudina and which is within the Maduwongga claim area. And there is a brief and uninformative reference to 'Minnie', Lena Judd's apparent mother, in one of Tindale's genealogy sheets. But there is no evidence of any husbands in the late 1890s, or what tribe they came from, or any evidence that their children were raised following customs that were 'Maduwongga' customs.
372 Cheryl Cotterill gave unchallenged hearsay evidence of what Dora Cotterill had told her about KB, Dora having lived with KB and her family around Edjudina as a child. Dora said that Goondair was KB's Wangkayi name and that Bluegum (Tommy) was KB's husband. He had a Wangkayi name, Begul.
373 Elvis Stokes also gave unchallenged hearsay evidence about what his father, Arthur Stokes told him about KB, namely:
(a) Tommy Bluegum was married to KB but they had no children;
(b) then KB had children, specifically Arthur Newland, with Walter Newland;
(c) Elvis's grandfather Ginger Stokes was a 'tribal husband' to KB but it appears that this does not mean that they had any long term marriage; and
(d) KB was a Wangkayi person and she was part of ceremonies at Linden, although they were women's business so Elvis Stokes could not talk about them.
374 Ivan Forrest also gave evidence that KB was Wangkayi. He was not challenged on that although, as set out at [217] above, he was cross examined on the meaning of the term. The cross examination seemed to be aimed at suggesting that 'Wangkayi' was a generic term which was capable of accommodating KB's membership of a more specific group that could be called Maduwonnga. But Mr Forrest did not accept that and adhered to his evidence that it had a more specific meaning of a 'Wongatha descendant' (ts 390).
375 The evidence that KB had children with Walter Newland is of course consistent with the evidence about Arthur Newland's parentage described above, save to the extent that the evidence suggests that his father may have been a different white man, Jack Quinn. Cheryl Cotterill's evidence based on her knowledge of Dora Cotterill was that Dora and Eva Quinn had the same father, whom she called John Quinn. She was not sure whether Violet Quinn also had the same father.
376 KB died in 1945. According to Mathieu I, she died of a wound inflicted by Tommy Bluegum.
Findings about the constitution of the Maduwongga over time
377 I will now express my findings about the constitution of the Maduwongga group during KB's time and including the generation of her grandchildren that partially overlapped with that time. To be clear, these concern the constitution of the group on the basis of the criterion put by the Maduwongga claim group members now: KB and her descendants (as well as her father, Johnny, and her two siblings). The findings do not imply that the Maduwongga are (or are not) a society in the Yorta Yorta sense, or in any other sense that might give rise to native title rights or interests. For the most part the constitution of the group is uncontentious, but findings are necessary because of the paucity of the historical record as to the constitution of the group as defined during KB's time (and before) and because of the controversy about the paternity of Albert Newland.
378 I will name the individuals in rough order of generations, recognising that the evidence and the issues neither allow nor demand accuracy:
(a) Johnny and KB's unnamed mother;
(b) KB (born c 1880) and her siblings Minnie and Jimmy;
(c) Violet Quinn, Eva Quinn, Arthur Newland and Lena Judd (all born c 1900-1910) as well as, possibly, Dolly Larrikin; and
(d) Teddy Forrest (born c 1916), Gertie Morrison (born in 1920), Joyce Nudding (born in 1948), Marjorie Strickland (born in 1950), and Christine Newland (born in 1970s).
379 As I have said Albert Newland (born 1930) was also recognised by KB and Arthur Newland as Arthur's son, but it is not possible to make a finding about his biological parentage.
380 Stanley Forrest, Ivan Forrest and Dennis Forrest are listed on a genealogy found in Morton II. If that genealogy is correct then Stanley would be a grandson of KB, and Ivan and Dennis great-grandsons. But I have not included Stanley Forrest in the group described above because there is insufficient evidence to confirm that he was the son of Eva Quinn.
381 It can be seen that the number of people who were alive in KB's lifetime and who can be positively identified as Maduwongga on the group's own criterion for inclusion is very small. If one takes the first three generations listed above, it is a total of eight people. That gives rise to a real question as to whether the group of people said to constitute a Maduwongga group during KB's time were sufficiently numerous to be a society in the Yorta Yorta sense.
382 The NP respondent made a point about the small number of people identified as the Maduwongga during KB's time and submitted that it was implausible that such a group could speak for country as extensive as the Maduwongga claim area. The State submitted that one person, or an immediate family, could not maintain a normative system of laws and customs in the Yorta Yorta sense.
383 Joyce Nudding was asked in cross examination by counsel for the State whether during KB's time at Edjudina there were other Aboriginal people with her. The passage was as follows (ts 244-245):
MR RANSON: And the time when she [KB] was living out in Edjudina. She lived out that way for quite a long time. And I think you said to us when we were out having - where we had lunch on Tuesday. [Old Edjudina Station]
JOYCE NUDDING: Yeah.
MR RANSON: You said there were some other people living with her out there at that time?
JOYCE NUDDING: Yeah, I don't know who the other people were though.
MR RANSON: Yes, okay. Have you any idea from what you've been told about how many people might have been living out there?
JOYCE NUDDING: Well, like I - this is just my own view. I thought there were going to be a lot of people might have been out there at one time. Not a heck of a lot but a certain amount. But they're all passed on.
MR RANSON: Yes. But at that time there might have been quite a lot of people out there?
JOYCE NUDDING: There might have been a hell of a lot of people out there. There's a possibility that there was. I'm certain there must have been. They got these special places there. People go to them and tendered [sic tended] to them, yeah. But we never been to them special places.
MR RANSON: Yes, and you don't - - -
JOYCE NUDDING: Father just - we just go past.
MR RANSON: But you don't know who those other people were?
JOYCE NUDDING: I don't know who them other people. They ancient people that gone long ago.
MR RANSON: The reason I ask you about that, Ms Nudding, is can I suggest to you that to me when I hear about such a big area as this Maduwongga country and I hear that there's really only one person and her family that owns and speaks for that whole country, will you agree with me that seems a bit unlikely that such a big area could be the responsibility of just one family?
JOYCE NUDDING: Well, to be honest with you, I can only speak for my family that I know that was there. There may have been others and there possibly was others but I don't know who they were. They probably passed out, I don't know. They most probably did otherwise they'd be here today, wouldn't they?
MR RANSON: Alright.
JOYCE NUDDING: But they passed away and this in my grandmother's time I'm talking about. It's long ago. It's nearly 100 years ago.
MR RANSON: Yes. And I understand that you might feel uncomfortable speaking for other families?
JOYCE NUDDING: No, no - yes, I know but - you got to get my memory go back, you know. But that's alright. That's alright, you ask me what you want to know.
384 It is clear from this that Mrs Nudding did not profess to have actual knowledge of the existence or identity of people living at Edjudina with KB, other than KB and, presumably, her father Johnny and perhaps her sister Minnie and her brother Jimmy. Understandably in the circumstances, her evidence about the number of those people during KB's time was very vague. The possibility that there were other people there, including other families that were also part of a Maduwongga society at the time, was pure surmise, and Mrs Nudding was candid about that. In cross examination by counsel for the NP respondent she gave the following evidence (ts 284):
MR EDWARDS: So is this right? So you don't know any old Maduwongga people except your aunties and your granny and you [sic] dad, is that right?
JOYCE NUDDING: Well, that's the ones I know. That's the ones I knew, I seen them, I've been with them and I grew up with them. But there must've been other people, but I don't know who they are. You know, I don't know who the families are. I wish I did. I wish I did. I really do but I don't. I just know my family.
MR EDWARDS: Do you agree then that all the people you know that it's all from one family?
JOYCE NUDDING: Yes, one family. Yes. I suppose since you put it that way, yes.
385 Mrs Nudding said in cross examination that 'the people was either died out, passed away, something happened to them, I don't know - got disease and died and there's only just a small bunch. Just a small - that's why they probably stuck together' (ts 289). But it was clear she was not professing to have actual knowledge of any of that; it was surmise on her part and not presented by her to be otherwise.
386 Counsel for the State also cross examined Mrs Strickland about the size of the Maduwongga group in KB's time. When asked whether the only Maduwongga people living during that time were KB, her children and perhaps her brother and sister, Mrs Strickland said, 'There may have been others. I don't know' (ts 165). While she said there were other people living with KB at Edjudina, Mrs Strickland did not know who they were.
387 In Yorta Yorta at [47] the plurality made it clear that the reference in s 223(1) of the NTA to (emphasis in original):
rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.
388 And at [50] their Honours said:
And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.
See also Alyawarr at [77].
389 While there is no issue in this case as to continuity of connection with country under traditional laws and customs, in my view these observations help answer the question as to the laws and customs of which society are the ones that apply. The vitality of which the High Court plurality spoke means that the laws and customs must carry normative force because they are the rules of a society which imposes sanctions of some kind if the laws are broken or the customs breached. If a given group is a mere handful of people, and moreover a close family, there must be real doubt about whether any patterns of behaviour they do observe could be the patterns of their own distinct society with normative vitality of that kind. Given that it is accepted that the Maduwongga group did derive rights and interests in relation to land as a result of observance and of traditional laws and customs, it is inherently more likely that they are the laws and customs of a larger society, as it is more likely that those are laws and customs that have normative force.
390 It is true that in Narrier at [374] Mortimer J said, 'Numerical strength is not the issue, nor a criterion for connection'. But her Honour was speaking there about estimates of the populations of Aboriginal people in 1957 of 46 in Leonora, 243 in Laverton and 48 in Wiluna. While small, those groups are orders of magnitude larger than the Maduwongga group during KB's lifetime. It seems to me that if the group of people is very small, it is inherently unlikely that they have their own laws and customs, unless perhaps they are the last people remaining out of what was once a larger group. And there was nothing in the evidence here to suggest that some larger group had somehow dwindled to KB and her family, recalling that as far as one can tell, the members of the group who were alive at the beginning of the gold rush, and before its impact on Aboriginal populations, numbered four (Johnny, KB and her siblings).
391 Ultimately, while this is a reason to doubt the existence of a Maduwongga society, it is not one on which I put much evidentiary weight. This is for the simple reason that the anthropological expert evidence did not touch on this issue. It is enough to say that the small number of people who can be positively identified as belonging to the Maduwongga group during KB's lifetime provides scant support to the case of the Maduwongga applicant.
392 This section examines the evidence about the existence and extent of an area that was identified as Maduwongga country, by Maduwongga people and by others outside that group. It is important to be clear about the purpose of doing so. As has been said, there is no issue that KB and her descendants had and have a connection to country that, at least, includes area around Edjudina in the overlap area. It is no part of the separate question to determine the precise extent of the country to which they have rights. But if the evidence were to establish that a particular group of people thought of themselves as having a set of rights over an identified area of land, perhaps rights which no one else had over that land, that would increase the probability that the group was distinct from other groups, including possibly in its acknowledgment and observance of a body of laws and customs. In short, identification with particular country is another possible marker of the distinctness that matters in this case: distinct laws and customs. But it is no more than that because the outcome of the inquiry will not necessarily reveal a distinct society; it is also possible that a land-holding group which is a subset of a wider society could hold rights and interests in relation to an identifiable tract of country under the laws and customs of that wider society.
393 In this section I will commence with the expert evidence. That is because, as has already been explained, the mapping of the Maduwongga claim area clearly has its origins in Tindale's maps, and there was a significant controversy between the experts as to the reliability of that mapping. After surveying that, the discussion will move to a discussion of the Aboriginal lay evidence about KB's country and the association of others to the overlap area.
Tindale's maps of Maduwongga country
394 Tindale's archival records, described at [306] above, provide several data points for his conception of the boundaries of Maduwongga country. The note on genealogy sheet 118 puts the 'Madu woŋga' at 'Linden, Mulline, Pinjin, Kanowna, & [nearly/rarely?] to Menzies'. Tindale's journal entry for 6 May 1939 puts the Maduwongga 'around Kanowna, extending to Pinjin Linden … occasionally to Murrinmurrin & rarely to Menzies' (as mentioned, Murrinmurrin is probably a slip for Mulline).
395 As set out above, Tindale's 1940 publication lists the ''Madu'woŋga' as 'From Pingin west to Mulline; from just south of Menzies to Kalgoorlie, Coolgardie, Kanowna, Kurnalpi, Siberia …'. Dr Morton suggests that these last two places, which do not appear in Tindale's notes, are just midpoints between other locations.
396 A map published at the same time was relatively crude. Nevertheless when Tindale republished the information, including a more detailed map in 1974, the boundaries were broadly consistent with the 1940 published map, and the written description was: 'From Pinjin on Lake Rebecca west to Mulline; from a few miles south of Menzies to Kalgoorlie, Coolgardie, Kanowna, Kurnalpi, and Siberia' (see above). As Dr Morton says (Morton II para 35), this appears still to be based on Tindale's 1939 data.
The expert evidence about the location and extent of Maduwongga country
397 The controversy between the experts was prompted by differences between Tindale's field notes and his published maps and accompanying descriptions. It will be recalled that the published maps show boundaries very similar to those of the Maduwongga claim area. I will now trace the controversy through the various expert reports.
The discussion of Maduwongga country in Mathieu I
398 In her first report, Dr Mathieu reviews Tindale's 1974 map against the Maduwongga claim area and explains various discrepancies between the two. These are relatively minor and it is not necessary to canvass them for the purposes of the separate question. However Dr Mathieu also seeks to explain the more substantial differences between Tindale's field notes and the published maps.
399 Certainly, there is something that needs to be explained. Tindale's notes on genealogy sheet 118 and in his journal entry for 6 May 1939 place the Maduwongga in an area extending as far as Linden in the north and only as far south as Kanowna. Yet his published maps place the northern border of the Maduwongga tribal area significantly south of Linden and the southern corner of that area south west of Kanowna, so as to include Coolgardie. In short, compared with the raw data he gathered on 6 and 7 May 1939, Tindale's published maps are skewed southwards. These maps are reproduced on the following page.
400 Dr Mathieu posits that the area north of the Maduwongga claim area, as identified by the place names in Tindale's notes, includes country of Arthur Newland's Walyen wife Norah Kunda, to which she says Arthur would have had secondary rights as part of his 'run', which she distinguishes from Mr Newland's 'tribal boundaries'. But this is speculative. Dr Mathieu asks 'why had Tindale recorded Arthur's run rather than his tribal boundaries?', but this begs the question as to what were his 'tribal boundaries', and whether they were different from those of the Walyen, that is, whether he did belong to a separate tribe.
401 More broadly, Dr Mathieu seeks to solve the puzzle of the differences between Tindale's notes and published materials by positing that Tindale must have had another set of records with more detailed (and more accurate) geographical information. Those possible missing records have not been located or produced to the Court, although Dr Mathieu does rely on two handwritten maps that were not put into evidence. In truth, the idea that there was another set of missing notes is pure speculation. It is an unconvincing explanation for the differences between Tindale's notes and published information.
Tindale's 1940 map
Tindale's 1974 map
402 Dr Mathieu finds support for her view of the extent and location of Maduwongga country in two other aspects of Tindale's records. First, Dr Mathieu says that in 1966, Tindale was told by Ngurlu survivors that a few miles south of Menzies lived a tribe whom they called jubaritja, meaning southerners and speakers of a non-Ngurlu language (Tindale, 1974, p 44). The passage from Tindale's 1974 book Dr Mathieu cites is not in evidence but in any event, once again, it can hardly serve to identify the Maduwongga as a distinct group with its own stretch of country. Dr Morton's view about the term jubaritja (spelled slightly differently) is described below.
403 Second, Dr Mathieu also says that on 20 May 1939, Tindale was told by a Walyen elder that Walyen country ended at Edjudina. There is no entry in Tindale's journal for 20 May 1939 but the journal does contain (at p 201 of Exhibit 34) a passage, apparently from an entry for 17 May 1939, attributed to Tindale's Walyen informant, Yordy (Jordy) as follows (Exh 34, pp 200-201, my transcription from manuscript, alternative spellings in original omitted):
The tribal area extends from Mr Margaret in the north; Jordy was born at a rockhole called Ŋalpu on the eastern shore of Lake Carey a little to SE of Mt Margaret & runs southward between the valley called Lake Carey and that called Lake Raeside as far as Pindjin (Pinjin of maps) and Kapi Kirkela. The area takes in Edjudina but does not extend to Yilgangi or beyond Yarri.
404 Kapi Kirkela appears to refer to the Kirgella Rockhole that is at the south eastern corner of the NP claim area and the far eastern corner of the Maduwongga claim area, and so within the overlap area. Although this appears to be the passage on which Dr Mathieu relies (see Mathieu I para 179), it is hard to see how she derives from it the proposition that Walyen country ended at Edjudina. Yordy is clearly saying that his 'tribal area' does extend further south-east than that, to Pinjin and the Kirgella Rockholes. From that it would appear that the statement that the tribal area does not extend beyond Yarri (which is very close to Edjudina) refers to the westward extent of the tribal area.
405 Dr Mathieu was cross examined about this journal entry. She fell back on speculation that when Yordy (whom she accepted was Walyen) said that his tribal area went as far as Edjudina, he may have been referring to a region supposedly of that name. That is implausible. All the other places referred to in the journal entry are specific places, as distinct from districts or areas.
406 Dr Mathieu also fell back on speculation that Yordy as a 'traditional man' was referring to 'places where he may have ceremonial rights and he has rights of visit'. But that is simply not what Tindale records him as saying - he records him as describing his 'tribal area'. Dr Mathieu also gave an explanation that 'Edjudina and Linden were areas of reciprocal rights between two tribes' because 'we know these people met for exchanging wives for a couple of weeks and then they went back' (see [425] below). And a little later she said, presumably thinking of the break in the Edjudina Range at Hobble Gap, that 'Edjudina was the place where they could go in from the desert. They could not go past it' (ts 548). She said that Yordy was not 'an Edjudina man' (ts 549) because he was not born there, but this makes an unsupported assumption that the only way to gain any rights to country under the laws observed by the Walyen was to be born there. In my view, Dr Mathieu was grasping at various speculative explanations in order to avoid having to confront the most straightforward interpretation of the record of what Yordy told Tindale: that his (Walyen) 'tribal area' went from Mt Margaret, south through Edjudina, all the way to Pinjin and the Kirgella Rockhole.
407 However Dr Mathieu does not limit herself to relying on Tindale. Her first report also relies, among other sources, on data which Bates gathered about the existence of distinct groups near the Maduwongga claim area. This was obtained during a brief stay in the Goldfields in 1908. Dr Mathieu refers to Bates's mapping of a group called the Karratjibbin to the west and the south of the Maduwongga claim area. In that area itself, according to Dr Mathieu's summary (Mathieu I para 110b):
Bates was also told by a man named Jilguru, a Wajjari of Lake Barlee district, that two different linguistic groups had lived east and west of Coolgardie: the people in the region of Kalgoorlie were called Wia-Ndurdu wonga, and those of Southern Cross Ngahierawonga (Bates, 1985:69; McDonald-Hales, 1998:14). Then Bates was also told that the people East and North East of the Wanmala (which corresponds to the region of the Claim Area) were called Kaialee (Folio 47/48), while in his record of the language of the tribe of Coolgardie, Jules Garnier recorded the name Kayane as meaning 'man' (Garnier, 1898). Furthermore, Bates learned from people of the Malbert tribe whom she located in the Dundas, that the people north of them were called Ganinie, and beyond them, 'Kalgoorlie way', were the Gomballie. West of Coolgardie, the people were called Wallaby (Folio 47/119).
408 This is no support for the existence of a distinct group that can be identified with the Maduwongga. At most, it identifies the possibility that Aboriginal people located west of Coolgardie were different linguistically from Aboriginal people east of Coolgardie and that there was also a linguistic difference (in that sense) between people within what is now the Maduwongga claim area and people east and north-east of that area. But rather than point to the existence of a specific society, which can be equated with the one later identified by Tindale as Maduwongga, this reveals a bewildering array of terms used by different groups to refer to different groups in different areas, from which no clear picture emerges at all.
409 According to Dr Mathieu, however, she has identified further 'substantial evidence of the Maduwongga's occupation of the present Claim Area before British sovereignty' (Mathieu I para 191). Dr Mathieu's account of that evidence can be summarised as follows:
(1) Accounts from early explorers, being the record by an author identified only as Uren of an unnamed party of prospectors, and the prospector James Tregurtha, of Aboriginal people treating the Gnarlbine Rockholes as a tribal boundary. The Gnarlbine Rockholes are near the southwestern corner of the Maduwongga claim area.
(2) Tregurtha's further account of what he was told in 1893 by an Aboriginal person called Jacky. It is difficult to make out the boundaries of Jacky's country as described in the quotes Dr Mathieu refers to, but from markers such as the Carr Boyd Rocks, Goongarrie, Gnarlbine and Broad Arrow, it seems to have been located in the western part of the Maduwongga claim area. Dr Mathieu speculates that this was Jacky's estate. But none of this establishes either an area claimed by any single tribe or socio-linguistic group or an area contiguous with the Maduwongga claim area.
(3) A report in the Kalgoorlie Western Argus in 1897 that an Aboriginal man called Fred McGill was living with a tribe he identified as the 'Fraser Range, Coolgardie, Kalgoorlie and Norseman tribe' (Mathieu I para 205). Dr Mathieu identifies this with the territory of the Kalaago tribe identified by Tindale.
(4) A sensationalist account in the Kalgoorlie Western Argus in 1898 of an expedition of a 'revenge party' of Aboriginal people who set off from Kurnalpi to Kensington near Menzies to kill an Aboriginal man apparently blamed for deaths from a typhoid epidemic (Mathieu I para 207). The account apparently includes reference to the expedition travelling between Kurnalpi and Kensington via Broad Arrow and Four-Mile. Edjudina is given as the home of the members of the expedition. These are all places within or close to the present Maduwongga claim area (assuming that 'Four-Mile' refers to Four Mile Hill). However Dr Mathieu's account of the material fails to establish why the places the revenge party travelled through should be considered to be part of the country of the members of the expedition. And while the reference to Edjudina as the home of the 'revenge party' could, of course, mean that it was their country, that sole reference in this unreliable source does not reveal any connection between the revenge party and KB or Johnny who, on the Maduwongga applicant's case, were present in the Edjudina area at around this time. So there is no basis to identify the members of that party with the Maduwongga.
(5) An account by the explorer Ernest Giles of an attack on his party by at least 100 Aboriginal men which took place in 1875. It occurred at Ullaring in the north-western corner of the Maduwongga claim area. The attack apparently occurred after some earlier, more friendly contacts with some numbers of Aboriginal people there. Dr Mathieu says that aspects of this story 'suggest that the men who attacked Giles claimed a territory running from Ullaring to the east and that the attack was not a raiding party but a controlled show of force to move the explorers onwards' (Mathieu I para 229). After reviewing those factors, Dr Mathieu opines (Mathieu I para 232):
It is culturally appropriate to explain the attack, in part at least, as retaliation for the mallee fowl eggs. These eggs had been collected in the country the explorers had traversed, which is east of Ullaring, and in eaten [sic] at a place situated on the Mallee Hen Dreaming track. Furthermore, the Aboriginal men at Ullaring were speakers of a language which Giles's guide found difficult to grasp initially but which he got to understand over several days. These same people gave Jess Young the name Ullaring, a WDL word that is not found in the Kalamaia word lists collected by Bates. All of this suggests that the men at Ullaring were speakers of a differentiated dialect of the WDL and were not Kalamaia speakers.
But while it might be 'culturally appropriate' to explain the attack by reference to mallee fowl eggs, that is highly speculative. In truth, all this material shows is the bare fact that Giles was attacked by a large group of WDL speaking Aboriginal people.
(6) Some inconclusive discussion of the meaning and pronunciation of certain place names, including Ullaring (Mathieu I paras 215-224, 233-239). It appears from something Dr Mathieu said in cross examination that this aspect of the report concerned the western boundary of the claim area, and so not the overlap area.
410 Overall these fragmentary sources may be consistent with the view that KB was a member of a group with native title rights and interests in the Maduwongga claim area under its own distinct body of laws and customs. But they do not even begin to establish that view. They are also consistent with any number of other hypotheses. This is an illustration of Dr Mathieu's 'ethnohistorical method', which in this case appeared to be aimed at reconstructing a society out of piecemeal material. It provides little assistance to a court that is charged with the question of whether admissible evidence establishes on the balance of probabilities that there was such a society.
411 Dr Mathieu also expresses the opinion that, because knowledge of water sources such as rock holes was vital in arid regions of Australia, 'knowing where the water can be found equates with knowing the country' and the tribal territory of the Maduwongga corresponds to rock holes, so that the 'Maduwongga tribal boundaries can be referenced according to the position of the rockholes and sources of water' (Mathieu I para 95). However the map which she cites in support of that (Figure 3 in her report) does not really support the point. It simply shows the location of a large number of rock holes and water soaks within the area mapped by Tindale as Maduwongga tribal territory. They appear to be distributed throughout that territory, not along the boundaries as Dr Mathieu suggests, and there is no map comparing the prevalence of rock holes outside the territory. It may be accepted that rock holes and other water sources were important to Aboriginal people and so may have attracted or strengthened connections to country. But the fact that there were a number of rock holes within the area mapped by Tindale hardly supports the view that this was the country of a particular group, such as the Maduwongga.
412 The other topographical features on which Dr Mathieu places emphasis are the Edjudina Range and Lake Raeside forming, she says, 'the Waljen-Maduwongga boundary', with Hobble Gap the only way through as 'one of the ancient gateways of Maduwongga country' (Mathieu I paras 179-180; see also Mathieu II para 151). She also refers to 'Yaboo hill and Edjudina soaks' and to Mt Burges, but does not explain why she considers that they 'connect KB's territory' to broader 'ceremonial cycles and mythological roads' running northwards (Mathieu II para 153). She also refers in broad terms to unspecified ecological features (Mathieu I paras 87-88; Mathieu II para 152). Dr Mathieu supports the significance of 'physiographic boundaries' as 'the most significant markers of tribal territories' by citing Tindale but also by reference to the particular 'economies' that arise from particular ecological systems that match physiographic features, as well as the way that those features can function as 'practical signposts' and are also 'the living expression of the ancestors who created the landscape in the Dreaming'. In the concurrent expert evidence session Dr Mathieu placed further emphasis on the importance of landscape as boundary.
413 Another matter that Dr Mathieu seems to enlist in support of her view that the Edjudina Range marks a boundary of Maduwongga country is that the section names found on each side of the range were different. I address that below in Section XI, which deals with section systems and, for reasons given there, do not see a clear border of the kind that Dr Mathieu discerns.
414 Dr Mathieu also relies on information given to Tindale by Nuna Roundhead in 1966. In that year, Tindale revisited Western Australia and interviewed a number of Aboriginal informants. Two of those were a married couple, Don and Nuna Roundhead, whom Tindale interviewed at Kalgoorlie on 19 April 1966. In the interview, Nuna told Tindale that the people of Menangina and Gindalbie, which are within the Maduwongga claim area, were, respectively, 'apart' or 'different', or 'strange' (Exh 35 pp 236-237). But Dr Morton points out that little can be made of this since Nuna Roundhead was, in his view, not Walyen and her father and her mother came from further north (see at [433] below). He also notes that Nuna in the same 1966 interview with Tindale laid claim to Edjudina, seemingly from Edjudina to Linden, as her mother's country.
415 In Morton I Dr Morton deals with Tindale's mapping of Maduwongga country almost as an aside. It was not the focus of the report, which was prepared in support of the NP claim in WAD 91 of 2019, and it was not the occasion for Dr Morton to engage with the views expressed in Mathieu I as summarised above.
416 Before averting specifically to that subject, Dr Morton refers to Tindale's mapping of the adjacent 'Waljen' territory. He says that Yordy was the sole informant for that mapping. As Dr Morton recounts, Tindale's genealogy sheet for Yordy (No 186) contains the following note:
Places of self Father walked
Edjudina Edjudina
Linden Linden
Laverton Menzies
Leonora Leonora
Kookynie
Dr Morton comments that 'This does not tally well in relation to Tindale's map'.
417 Later in Morton I, Dr Morton says that whether areas to the south and west of the NP claim area belong to Western Desert peoples is not entirely clear. Relevantly to the mapping of Maduwongga country, he notes that Tindale's material 'has areas so placed as belonging to Western Desert peoples, "Maduwoŋga" and "Ŋurlu"'. Dr Morton says that there are reasons to doubt Tindale's mapping, especially to the south. This claim he footnotes with a statement that Tindale's Maduwongga mapping is primarily based on data from one informant, KB, who only mentioned to him 'Linden, Mulline, Pinjin, Kanowna, & nearly to Menzies', as noted on genealogy sheet 118. The footnote also refers to Tindale's comments on that sheet that KB came from the east, and also mentions the reference to the east in the journal entry for 6 May 1939. Dr Morton expresses the opinion that areas to the south and south west of the NP claim area were not Western Desert but, in Tindale's terms, 'Kalaako' or 'Kalamaia'.
418 In her report on the separate question, Dr Mathieu takes issue with these views. She says that in general Tindale's mapping should be taken seriously, however the reasons she gives for this concern the general reliability of what Tindale was told by his Aboriginal informants, and do not grapple with the discrepancies between the places recorded in his field notes and his ultimate mapping of the Maduwongga tribal boundaries.
419 Dr Mathieu also says that Tindale did not gain his information about the extent of Maduwongga country solely from KB. At Southern Cross on 6 and 7 May 1939 he also spoke to Arthur Newland and to Kalamaia (Marlinyu Ghoorlie) informants (for the Maduwongga/Kalamaia boundary). She claims in the report that at Mt Margaret between 11 May and 16 May 1939 Tindale spoke to Arthur Newland and ancestors of the NP claim group, although as has been said she subsequently conceded that Tindale did not meet KB and Arthur Newland at Mt Margaret on that day. However, apart from the specific references to places noted on the genealogy sheets, there is no evidence that Tindale actually discussed the boundaries of Maduwongga country with any of these Maduwongga or other Aboriginal informants. Dr Mathieu also refers to opportunities that Tindale had to cross check his data between Maduwongga, Western Desert and Kalamaia informants, both in 1939 and when he revisited the region in 1966. But there is no evidence that he actually took that opportunity.
420 Dr Mathieu also says that Berndt set the boundary of the 'Western Desert Cultural Bloc' in the same place as Tindale's boundary between the Walyen and the Maduwongga and did not contest that boundary. Whether that was the result of any investigations that Berndt made independently of Tindale's maps is not clear from the evidence; as will be seen in Section XI below, at least one of Berndt's maps reproduced by Dr Mathieu just reproduces Tindale's tribal boundaries. Dr Mathieu also relies on the references to 'Maduwoŋga' on genealogy sheet 67 for Jean Walker and Mary (see [175]-[178] above), and to cross referencing that can be done with other historical sources such as Bates and James Tregurtha. She gives a brief account of the 'marriage line' or marriage road which Bates identified as running through Edjudina, Kurnalpi, Kalgoorlie, Broad Arrow and Kanowna. But while this suggests that people in Edjudina had associations with places along that road, it does not indicate who those people were. None of these general observations provide a specific answer to the discrepancies between Tindale's notes and his mapping. The information taken from Bates and Tregurtha is considered below.
421 In her second report Dr Mathieu also seeks to reconcile Tindale's mapping of Maduwongga country with information that Bates obtained from an Aboriginal informant she interviewed in the prison on Rottnest Island, Jurdain, and also with Tindale's own notes of an interview with Walyen informant, Yordy. Jurdain drew a map of his country and gave Bates a list of the main places in it: Linden, Pinjin, Mulgabbie, Edjudina, Kurnalpi, Kurrawang (just south west of Kalgoorlie) and Coolgardie. Dr Mathieu says he was a native of Edjudina. She seems to consider that he was Maduwongga, even though as Dr Morton points out he and every member of his family has a section name noted on Bates's genealogy for him. In any event, the difficulty this information poses to the theory that there was a border between Maduwongga and Walyen country at the Edjudina Range is that the country given by Jurdain appears to cross that range and to extend as far north as Linden, in what is now the NP claim area. So do the 'Places of self' and places 'Father walked' which Yordy gave to Tindale. For that matter, so do the places that KB or Arthur Newland gave to Tindale on 6 March 1939.
422 As to the last of these, Dr Mathieu says that 'there are good reasons to believe that this list is speaking of the Maduwongga's run at the time of the interview and not of their traditional country' (Mathieu II, para 174). However those 'good reasons' are the speculative suggestions about Nora Kunda's country and a missing set of Tindale notes that are mentioned above. Nevertheless, it is quite possible that on 6 May 1939 Arthur Newland (or KB) did describe their current 'run' rather than their 'traditional country'. But that leaves unanswered the question: where did Tindale get the boundaries of that traditional country from?
423 Dr Mathieu also opines that since one of Yordy's 'places of self', Leonora, is not in the NP claim area, those places 'indicate, if not a "run", at least a "ritual road"' (Mathieu II para 174). Why that follows is not made clear. Dr Mathieu minimises the other record of Tindale's discussions with Yordy, his handwritten notebook (see [403] above) which records that Yordy's tribal area extends south as far as Pinjin and the Kirgella Rockhole. Dr Mathieu only notes that the area encompasses Edjudina but does not go past Yarri. But as has been noted, Yordy's 'tribal area' extended as far to the southwest as Pinjin and the Kirgella Rockhole. In the concurrent expert evidence session Dr Mathieu asserted that Yordy's country was 'between these two valleys' (ts 458), by which she seemed to mean the valleys of Lake Carey and Lake Raeside mentioned in Tindale's notebook. But this simply disregards the rest of the quote, which indicates that Yordy's country also went beyond those valleys as far south as Pinjin and the Kirgella Rockhole and encompassing Edjudina.
424 Dr Mathieu candidly admits that she cannot provide a reason for Tindale's decision to place the boundary between Walyen and Maduwongga where he did in 1974 on the basis of her current knowledge. But she points to reasons he might have done so, including the presence of the Edjudina Range and Hobble Gap, the presence of a section system 'on the other side of the hills' (a matter addressed in Section XI below) and linguistic differences (addressed in Section IX below).
425 Dr Mathieu also says 'neither Jurdain nor Yordy claimed Linden as their birth districts. Thus, if they had rights to Linden it was on the basis of secondary ritual rights' (Mathieu II para 177). But this does not take account of the multiple pathways by which Western Desert people could establish primary rights to country. She also speculates that the answer might lie in those areas being included in lists of place names due to connection to ceremonial practices, Linden and Edjudina being the places on either side of the range where people met for ceremonies. Again, with respect, this speculation does not help the Court reach any firm conclusions. It is difficult to see why it is necessary to speculate at all when a simple alternative explanation appears on the face of what Bates recorded Jurdain as having said and what Tindale recorded Yordy as having said: that for each of those men, those places were part of their country.
426 The basis of the suggestion that Linden and Edjudina concern ceremonial practices appears to refer back to an earlier passage in Mathieu II (para 98) in which Dr Mathieu summarised the interaction between tribes at Edjudina and 'Pindinnie' (Pindinnis - see [608] below) (on the northern side of the Edjudina Range). The source for that discussion appears in the autobiographical typescript of a white man called David McDonald. Dr Mathieu summarises it as follows: those two tribes 'met for wife exchange ceremonies, and otherwise had nothing to do with one another' (Mathieu II para 98). At Morton II (paras 95-97) Dr Morton says on the basis of his examination of McDonald's 'manuscript' that this view is false. The relevant extract from McDonald's typescript was in evidence and I agree with Dr Morton's assessment of it. I will describe other opinions Dr Morton holds on the basis of McDonald's memoir in Section XIII below, when I come to consider the evidence about whether KB held rights and interests in relation to land under the normative system of traditional laws and customs of the Western Desert.
427 While on this part of McDonald's memoir, it is relevant to deal with another point Dr Mathieu makes about it. At paragraph 98 of Mathieu II, she places significance on the fact that McDonald 'identified four tribes of Wongi', but according to her, identified only two of them (the ones at Edjudina and Pindinnie), with the other two apparently being on a page that is missing from the typescript. While this interpretation of the material is open, I do not accept it. What McDonald said was: 'The Wongi were split into four tribes, one at Pindinnie with a type of auxiliary out east in spinifex country, another at Edjadoo [Edjudina], also with an auxiliary in the spinifex' (Exh 47 p 344). That is a complete identification of the four tribes, being two main tribes and two 'auxiliary' ones. Although it was not clear, it may be that Dr Mathieu ended up accepting that when, in cross examination, she said 'I'm happy to have those as the four tribes' (ts 620). It is true that the typescript then, at the very end of the page, says 'Ed-'. Then the first words at the top of the next page in the exhibit are 'They measured time by Bera, the moon …' While it is possible that 'Ed-' is the truncated start of a word indicating that a whole page is missing, the description of the four tribes is complete, the entire passage makes sense if the 'Ed-' is disregarded (McDonald just goes on to describe how the four tribes measure time), and handwritten page numbers on the typescript are consecutive, suggesting that nothing is missing. Dr Morton considers that only one line is missing.
428 Dr Morton expands on his criticism of Tindale's mapping in Morton II. He notes that Tindale revisited the relevant area in 1966 and while travelling south to Kalgoorlie from Leonora and Laverton was struck by the changing landscape from mulga scrub to mallee forest. Tindale wrote in 1974 that the change from Ngurlu to Maduwongga territory 'falls sharply at the transition, only a mile or two wide, between the mulga (Acacia aneura) country in the north and the mallee Eucalyptus forest …' (Morton II para 37). But no one during that trip actually told Tindale that this boundary in the landscape was a Maduwongga boundary (or even a boundary between different peoples). Indeed, as the discussion above highlights, KB and Arthur Newland spoke to Tindale of country north of that asserted boundary.
429 Dr Morton considers that Tindale was basing his view that this was the boundary of Maduwongga territory on what he had picked up in 1939. He also notes that during the 1966 trip Tindale picked up the term 'julbaritja' which in his 1974 book Aboriginal Tribes of Australia he gave as an alternative to Maduwongga, but in fact it is just a general term for 'southerners' used by 'a '"Nan:atjara" man' Tindale interviewed at Leonora. The use of the word that way does not identify any particular tribe or other group of people with any particular territory.
430 Dr Morton also refers to Tindale's attribution of the language 'Kabul' to the Maduwongga (see extract at [308] above) and examines the primary data he collected from Don and Nuna Roundhead, noting that what Mr Roundhead told Tindale did not support any equivalence of Kabul with Maduwongga. The location of Kabul that was described by Mr Roundhead had it extending between Southern Cross and Kalgoorlie. Importantly, Mr and Mrs Roundhead gave Tindale the following information, recorded in his journal from 1966 (Morton II para 39, see also Exh 34 pp 211-214):
In language terms he spoke 'Kabul and she spoke Waŋgai: juŋjara. … In the terms of my older information she is a 'Wal:jen but did not recognise that term. Her real country, or that of her mother, was from Laverton Downs and Burtville south to Yundamindra, Linden, Kookynie and Edjudina. … The territory at Kanowna, Broad Arrow, Orobanda [sic, Ora Banda] Callion, Davyhurst and Goongarrie belonged to her husband's father's father. It is probable therefore that the 'Kəla:mai boundary of my [1940] map should be placed a little further to the north east since it seems to reflect a SW push of the Wa:ljen [Walyen] or 'Waŋgai: Juŋjara' to Kalgoorlie in the 1890s.
431 On the page facing this entry Tindale wrote 'In another part of the discussion she said Waljen meant "middle" and it was the name of the language'. These observations Tindale made are consistent with what can be understood from the transcript of that interview, which was in evidence, other than differences in transcription of language names and some confusion between the country of Don Roundhead's mother and father.
432 If Walyen territory pushed as far south as Edjudina, and as far south west as Kalgoorlie, and if the area of Kanowna, Broad Arrow, Ora Banda, Davyhurst and Goongarrie were Kalamaia, that would leave little or no country to be designated as Maduwongga. Tindale also said in his 1966 journal that Gindalbie, in the centre of the Maduwongga claim area, should 'perhaps' mark a revised south eastern boundary point of the Ngurlu group ('Ŋurlu' in Tindale's journal), shown in Tindale's 1940 and 1974 maps directly north of his mapping of Maduwongga (Exh 34 p 214). Dr Morton points to the fact that these revisions were not in fact made in Tindale's 1974 book.
433 Note however that according to Dr Morton, Tindale's view that Nuna Roundhead was a Walyen is incorrect, because when he took genealogical details from her in 1939 he recorded her father as being from a people whose country Tindale mapped as being north of Walyen country, and her mother from further away, west of Warburton Range. But this assumes that Tindale's mappings were accurate on those occasions, and also does not take account of contradictory information in Tindale's journal suggesting that Nuna and both of her parents were born in or around Laverton, with perhaps an earlier generation having 'come in from the east' (Exh 34 p 211).
434 From his examination of this material, Dr Morton draws a number of conclusions about Tindale's final 1974 mapping of Maduwongga country, as follows (Morton II paras 41-42, footnotes removed):
a) The map, as well as the name 'Maduwongga' remained almost entirely based on Tindale's interpretation of the information that was given to him by KB's family at Southern Cross in 1939.
b) While Tindale had some reason to question that mapping to a good degree after his 1966 interviews, he elected not to change the 1974 Maduwongga boundary to any significant degree. Why is unclear.
c) There are a number of places - Edjudina, Kanowna, Broad Arrow, Goongarrie and Ora Banda - which were spoken of by Tindale's 1966 informants in such a way as to make it doubtful that they should have been included in a Maduwongga territory, as opposed to (in his terms) Kalamaia or Walyen territory. I note here that even in 1939, Tindale was told by his only self-professed Walyen informant that Walyen country went as [sic at] least as far south as Edjudina, and perhaps further to Pinjin.
d) The places mentioned immediately above are positioned in such a way as to make questionable almost the entire Maduwongga area as mapped by Tindale in 1974. In that regard, I draw attention to something written by Tindale in a small field notebook after speaking to the Roundheads at Kalgoorlie; while the handwriting is somewhat indistinct, on my reading it says 'Maduwoŋga is evidently not a sep[arate] entity but a mistake check'.
In my opinion, then, there should be serious doubts about the reliability of Tindale's mapping of the group and territory known as Maduwongga. As far as the Nyalpa Pirniku overlap area is concerned, this brings into question Tindale's understanding of the area running approximately east to west from Pinjin to Lake Goongarrie and Yunndaga, taking in the Edjudina area, Lake Rebecca and a portion of Lake Marmion, as per Map 1 at the beginning of this report [the same map is found in Annexure A to these reasons].
435 Dr Morton also refers to the fact that Bates depicts Jurdain's country as reaching north of the border between Maduwongga and Walyen which Tindale drew, while Yordy's country reaches south across the same border to Edjudina, Pinjin and Kirgella Rockhole. A little later, Dr Morton expresses the opinion that the evidence he brings to bear points to both men 'being a part of the WDCB' (Morton II para 110).
436 Dr Morton goes on to make the following criticism of Dr Mathieu's reliance on Tindale, pitched at a more theoretical level (Morton II para 103, footnotes removed):
There is a significant omission from Dr Mathieu's account at this point - namely any discussion of the important debate about 'tribes and boundaries' that has been going on in anthropology for some six decades, beginning with Professor Berndt's 1959 paper referred to earlier, at [78-79] above. I am unable to engage this debate in any depth at this juncture. Suffice to say that Dr Mathieu's 2020 report shows no cognisance of it, in spite of it having important implications for the way she has construed 'Maduwongga' country and that of its neighbours. It is now consensus in Australianist anthropology that Tindale's model of 'the tribe' as an entity with 'a proper name, a discrete territory, a common language, and a shared kinship system', as well as endogamous and the particular locus of common ideas, and 'shared initiation rites and ceremonies', is deficient, which is why 'tribe' generally appears in quotation marks in contemporary anthropological literature. As Dr Ian Keen says, this 'tribe model had begun to unravel more than a decade before Tindale published his book and map of Aboriginal tribes in 1974', and as Mr Kim McCaul and Dr Amy Roberts say:
On the face of it, Tindale's definition of the 'tribe' appears to correlate nicely with the legal definition of the 'society' ('a group of people united by their observance and acknowledgement of a system of laws and customs') so crucial to native title inquiries. And yet in many claims anthropologists need to revisit the very premise of Tindale's work, 'the tribe', and explain why it is not actually a helpful unit when it comes to understanding the formation of 'societies' and 'systems of laws and customs' as required by native title law. This is not a novel debate.
437 Dr Morton responds to Dr Mathieu's reliance on observed differences in ecology across borders by pointing out that there is no information that associates any of these physical features of the country with KB, and no information concerning what she made of them. This is a subject where, faced with a conflict between the views of the experts, I prefer the view of Dr Morton as the expert with demonstrated deep expertise in Australian Aboriginal anthropology.
438 Referring then to the reasons advanced in Mathieu II as to why Tindale decided to place the boundary between Walyen and Maduwongga where he did in 1974 (see [424]-[426] above), Dr Morton, labels these as 'somewhat speculative' (Morton II para 110). He also says they are based on 'erroneous statements about language differences, regional differences in counting sections, and relative isolation outside of ceremonial contexts '(Morton II para 110). The comment about 'relative isolation' appears to refer to Dr Mathieu's view (discussed above) that David McDonald said that the tribes at Edjudina and Pindinnis met for wife exchange ceremonies and otherwise had nothing to do with each other.
439 The Expert Conference Report records Dr Mathieu's and Dr Morton's respective views about the question, 'How reliable, extensive and/or cogent is the evidence underpinning Tindale's identification, description and/or mapping of the group and territory known as Maduwongga?' (Exh 26 prop 2.4(b)). Dr Morton essentially maintains the view expressed in Morton II. He says 'Tindale's identification of a group known as Maduwongga in relation to the territory that he mapped as Maduwongga is minimal, contradicts some of his other evidence, and cannot be relied upon to identify the pre-sovereignty society for this area'. Dr Mathieu is recorded as only saying that 'Tindale's identification falls broadly in line with Bates' data and in that sense it is relevant to the case'.
The oral evidence of the experts about Maduwongga country
440 Dr Mathieu did not respond to Dr Morton's criticisms in writing, even though she took the opportunity to provide Mathieu III, filed 9 November 2020 responding to two other aspects of Morton II. She was, however, cross examined about Tindale's record of interview with Don and Nuna Roundhead in 1966. It was put to her that the Roundheads appeared to describe their respective countries in a way that met in the middle of the putative Maduwongga country, that they had not heard of the Maduwongga, and that this left no room for a Maduwongga tribe. In response to this, Dr Mathieu simply asked the rhetorical question of why Tindale then put Maduwongga country 'in between' on his 1974 map and suggested that he 'trusted [h]is geographical data rather than his ethnographic notes' (ts 543). But why he trusted that geographical data, and where data of that kind consistent with the map was to be found, she left unexplained.
441 Dr Mathieu also suggested that Don Roundhead could not remember the word 'Kalamaia' for his own people and so seemed to imply that the Roundheads may have misremembered details. It appears that when data collected by Tindale is consistent with Dr Mathieu's convictions about the Maduwongga laws and customs, it confirms those convictions, but when it is inconsistent, it must have been misheard or misremembered by Tindale or by his Aboriginal informant.
442 Dr Mathieu agreed in cross examination with Dr Morton's reading of the notebook entry mentioned above ('Maduwoŋga is evidently not a sep[arate] entity but a mistake check') but said that Tindale must have checked his data and left Maduwongga in the map. But nothing in the evidence shows that he actually did check. In truth, the difference between the 1974 map and the thought expressed in the notebook is unexplained.
443 Dr Mathieu was cross examined on the views of other anthropologists about Tindale's mapping exercise. A report of two anthropologists, Dr Sandra Pannell and Daniel A Vachon, in the Wongatha claim said the following (Exh 29 pp 76-78, footnotes omitted):
Tindale also had certain ideas about how Aboriginal similarity and difference could be mapped out on a continent-wide basis. He held that the nomadic habits of indigenous Australians did not mean that they were 'free wanderers'. Rather, they occupied defined territories over which rules of trespass applied and to which they were largely confined owing to the political pressure of others, environmental and technological limitations, and their fears of the unknown. …
…
We would suggest that, to some extent, Tindale saw one of his tasks to be the creation of a tribal map of Aboriginal Australia that had no blanks or anomalous regions. In our view, this enterprise had the effect, at least for the claim area and its indigenous inhabitants, of Tindale drawing inferences from little evidence and carelessly applying his own definition of the tribe.
444 When taken to this in cross examination Dr Mathieu disagreed with it but she did not offer any coherent explanation as to why she disagreed. She simply referred to how 'revolutionary' Tindale's view that Aboriginal people had territories was, that she believed that there were in fact 'definite boundaries' and how 'preposterous' and 'ridiculous' alternative views were (ts 563-565).
445 Dr Mathieu was also cross examined on an extract from Dr Edward McDonald's report in Wongatha in which he said that the (Exh 30, emphasis in original, citations removed):
notion of 'tribe' or its cognate concepts - language group or socio-dialectal group, may be anthropologically problematic with respect to land ownership in what Sutton refers to as classical Aboriginal societies but they have clearly become central to Aboriginal ideology and social organisation in post-colonial or post-classical settings.
446 Dr Mathieu disagreed with that too, but her basis for doing so was the views of an unidentified 19th century author called George Grey who apparently considered like Tindale that there were boundaries between Aboriginal people's territories.
447 In any event Dr Mathieu did not explain why Tindale's view was correct or how its revolutionary nature spoke against the idea that Tindale wanted to fill in all the 'blanks' on the map. That idea finds support in Dr Morton's evidence in the concurrent expert evidence session that Tindale was 'was desperate to fill in all the gaps' (ts 444). Dr Mathieu appeared in the end to accept that there was a general consensus that there was a difficulty with Tindale's mapping, but she said she was not part of that consensus.
448 Also in evidence were extracts from Kingsley Palmer, Australian Native Title Anthropology: Strategic Practice, The Law and The State (ANU Press, 2018). They included the following passage (p 176):
Tindale adopted quite uncritically the idea that boundaries were delineated by the environment. He thus asserted that rivers or hills were boundaries, seemingly with little field data to support his opinions. Based on this assumption he sought ecological distinctions in order to map groups on to country and so place 'tribes' as corporate entities within delineated territorial boundaries. Examples of Tindale's assumptions in this regard illustrate the consequential doubtful conclusions he uncritically advanced as a result.
That too is consistent with Dr Morton's view that Tindale based his borders on his own observation of ecological transitions without any confirmation from Aboriginal people (see [428] above).
449 After setting out some examples, including an example about the mulga-mallee transition in connection with the Maduwongga that is mentioned in Morton II (see [428] above), Dr Palmer concluded (at p 177, italics in original):
Given that 'boundaries' are innately problematic in this context, assuming a priori that they were determined by ecological factors renders the analysis flawed. It is possible that in some cases boundaries did coincide with changes to the ecology, but Tindale does not provide consistent field data to establish that this was the case in the examples cited above.
450 Dr Palmer then goes on to consider the instance of Tindale's data about the Maduwongga in more detail, introducing the discussion as follows (p 177): 'That Tindale failed to understand fundamental truths of the anthropology is illustrated by the interesting case of the Maduwongga and the Kalamayi of the Eastern Goldfields of Western Australia'. This is based on an account of Tindale's interview with Don and Nuna Roundhead in 1966, where Palmer accuses Tindale of misunderstanding them. Palmer characterises Tindale's omission to change his 1974 map to take account of what the Roundheads told him this way (pp 180-181, footnotes omitted):
He reproduced the Maduwongga group and their boundaries in his 1974 book more or less consistent with his 1940 map, apparently ignoring his own later field data both with respect to the Maduwongga and his own journal note to place the boundary of the Kalamayi 'a little further to the north east'. Inexplicably he gives the term 'Kabul (language name)' as an alternative to Maduwongga, implying that Maduwongga, Kabul and Kalamayi were one and the same, although the 1974 map has Maduwongga and Kalamayi as separate groups. Tindale added, 'Statements suggest a protohistoric movement from the east displacing Kalamaia people west beyond Bullabulling. Their language was called ['Kabэl] and was understood as far west as Southern Cross' (1974, 246). This would suggest that the Maduwongga's pre-sovereignty country lay to the east of where Tindale places them on his 1974 map, the exact location depending on where 'spinifex country' is considered to commence but ignores the Roundheads' opinion that the Maduwongga came from further north and in the vicinity of Meekatharra or Menzies.
The basis for Tindale's conclusions about demographic movements is unclear and seemingly speculative. The unhelpful permissive passive 'statements suggest' implies that he was told this by those whom he interviewed. … Considered together, Tindale's data from 1939, 1966 and the final production of his tribal map in his 1974 publication are inconsistent and unsatisfactory. His data provide a slim basis upon which to support a conclusion that a whole 'tribe' relocated from the spinifex to the west, whatever it was called, while the names Maduwongga, Kalamayi and Kabul are ambiguous and their functions as social, territorial or linguistic units are unclear.
451 This was put to Dr Mathieu in cross examination and she did not agree with it, although it must be acknowledged that the last part of the quote was not part of what was put to her, and the cross examiner did not give her a full opportunity to say why she disagreed. I am conscious that the authors quoted above did not give evidence in this proceeding and were not qualified as experts in it. Nevertheless, this material was admitted into evidence without objection, so those matters can only go to weight. What the authors say is consistent with the views of Dr Morton, an expert Aboriginal anthropologist who did give evidence in the proceeding. They are inconsistent with the views of Dr Mathieu. What I take from that is that, as Dr Mathieu was happy to admit, her views are outside the consensus of anthropological opinion about the reliability of Tindale's mapping.
Observations about the expert evidence on mapping Maduwongga country
452 Once again, it will be appropriate to defer making firm findings about the expert evidence about Tindale's mapping of Maduwongga country until the end of the judgment. But it will be helpful to bring a few observations together now.
453 First, it is clear that there are significant differences between the data Tindale gathered from his Aboriginal informants and his map of Maduwongga country. In the case of KB and her family, those differences are significant enough. The map does not correspond with places, they gave to Tindale as their country, run or location, but skews southwards. The discrepancies are all the more puzzling once one examines the information that Yordy gave Tindale, which suggests that Walyen country went as far south east as Pinjin and the Kirgella Rockhole. And they become troubling when one considers the information the Roundheads gave Tindale in 1966, and what he himself appears to have made of it in his brief notebook entry. Dr Mathieu's attempts to explain the inconsistencies of Tindale's maps with his own data are, with respect, speculative and unconvincing. They are based in part on what appear to be misreadings of Tindale's notes about Yordy and David McDonald's autobiography. They are also based on views about language and section systems which, as will be seen in Sections IX and XI below, are not borne out by the evidence.
454 Second, the sources on which Dr Mathieu relies other than Tindale are fragmentary and do not provide cogent evidence of a tribe or other group occupying and holding rights in respect of the Maduwongga claim area. With one qualification, that includes Bates. The qualification is that the information that Bates obtained from Jurdain is clear enough. It maps adjacent to the north-eastern and south-eastern borders of the Maduwongga claim area, but it also stretches north past the Edjudina Range to Linden. I will return to Jurdain in Section XIII below as Dr Morton places some weight on this evidence in relation to his opinion that KB acknowledged and observed the traditional laws and customs of the Western Desert.
455 Third, Dr Mathieu refers to topographical and ecological features as a possible explanation for Tindale's placement of the borders of Maduwongga country where he did. But Dr Morton discounts this as an explanation and his view appears to be consistent with the mainstream of anthropological opinion. More broadly, Dr Mathieu's defence of Tindale's conception of territory divided up into 'tribal' territories with more or less definite boundaries is also outside the anthropological mainstream.
Lay Aboriginal evidence about Maduwongga country
The evidence adduced by the Maduwongga applicant
456 According to the submissions of the Maduwongga applicant, KB identified the boundaries of her traditional country as between Edjudina, Coolgardie and Ullaring. This last name appears to refer to places called Ullaring Soak and Ullaring Rock which are in the north western corner of the Maduwongga claim area (see the map in Annexure A to these reasons).
457 The biographies in Section VII already canvass some of the evidence about country associated with members of the Maduwongga group. In summary:
(a) KB's father, Johnny, had a connection to the Edjudina area, although the nature of that connection is unclear;
(b) KB seemed to have spent significant time moving around and presumably camping, and so spent time at places that included Kanowna, Broad Arrow, Edjudina and Ora Banda;
(c) Arthur Newland was born at Kanowna and lived at Edjudina Station and Old Pinjin Station until he turned 16 or 17;
(d) Lena Judd was born near Menzies, and lived and worked around Edjudina and at Menzies other than time spent in Perth;
(e) Albert Newland was born at Merredin, and as a child spent time at Southern Cross and Broad Arrow until he was taken to the mission at Mt Margaret, and while at the mission he also spent time around Porphyry and Broad Arrow; and
(f) Teddy Forrest was buried at Kalgoorlie.
458 Joyce Nudding's evidence was that her grandmother KB 'was a tribal person who spent a lot of her life camping around Edjudina' (WS 6.1 para 22). She said she had been told this by Eva Quinn and Lena Judd. In cross examination she said of KB, 'she come from Edjudina, she lived around up to Coolgardie, she lived all around here' (ts 294).
459 Tindale's journal entry for 6 May 1939 includes, the following (see [306(8)] but repeated here for ease of reference):
Maduwoŋga are around Kanowna, extending to Pinjin Linden in the North occasionally to Murrinmurrin & rarely to Menzies (recently). They originally came from the spinifex country to the east of their present location. They drifted in at the time of the first gold rush (middle 1890s).
460 When cross examined about this, Mrs Nudding maintained that KB 'lived all around the goldfields area here and there in the Maduwongga country' (ts 294). She said she did not know about where KB was born but referred to KB and her parents and said 'they were here before white man came' (ts 295).
461 According to Mrs Nudding's evidence in Wongatha, she and Marjorie Strickland made their claim over the area identified as Maduwongga because 'that's the area that's Maduwonga people, tribal Maduwonga people lived, and I was part of' (WT 7844).
462 Mrs Nudding's evidence was that she and her sister Mrs Strickland spent a lot of time with the old people, including Arthur Newland and Eva Quinn, and spent time camping with them on country. She confirmed in cross examination that when she referred to the old people, she meant Eva Quinn, Norman Forrest, Lena Judd, Violet Quinn and Jessop Sullivan, as well as KB and Tommy Bluegum (noting however that the last two people named died before Mrs Nudding was born and she did not claim to have ever met them).
463 Norman Forrest did not come from the same area as the others, but rather from an area north and north west of Kalgoorlie, near Mt Celia, which is on the other side of the Edjudina Range from the Maduwongga claim area, and outside it. In that regard, Ivan Forrest's evidence was that his father told him that Norman Forrest 'was from Linden through to Kookynie' (Exh 20 para 1535). Mrs Nudding was not asked about where Jessop Sullivan came from in her cross examination in this proceeding, but in Wongatha she said that he was from Darlot, which is the name of a lake situated far north of the Maduwongga claim area.
464 Mrs Nudding's witness statement said that Arthur Newland and Eva Quinn took Mrs Nudding and Mrs Strickland to 'places in what Dad called his country' (WS, 6.1 para 35, emphasis in original). It contained the following evidence about things that the family had done at various places on country (WS 6.1 paras 36-42):
Marjorie and I were taken to camp at Edjudina for most of our school holidays. I remember being there around the time that the USSR sent a dog into space in Sputnik 2 (November 1957). From Edjudina, you can see hills to the east (the Edjudina Range). We were taught that beyond the hills was Waljen country. Towards the north end of the Edjudina Range is a passage through to Waljen country known as Hobble Gap.
Dad and Aunty Eva took me places where they had travelled before, and showed me rock holes like Gilgangie and Yowie, Edjudina soak, Yindi rock hole, Pinjin rock hole and the Claypan near Menzies. They showed me where they used to camp at those places.
Dad took Marjorie and me to Pinjin Station, which is known as Old Pinjin, and told us how he was sent there on the Protector's orders. Old Pinjin is shown as abandoned on more recent maps. There are old ruins there. There are old campsites near Old Pinjin and near 'new' Pinjin, and also on the east and west banks of Lake Rebecca, which is nearby.
I remember going to Mulgabbie was when I was eleven years old. We were living at Menzies at the time. I went there with Aunty Eva, Mum, Dad and Marjorie. We went there in Dad's old Ford truck. Dad drove with Aunty Eva in the front and we all sat in the back. At that time we went on his run and we went to places camping. These places included Old Pinjin, 'new' Pinjin homestead, Edjudina soak and Edjudina, Yarri and Porphyry.
We spent about six weeks at Mu[l]gabbie. Dad told me that the tribe had camped around there, including [KB], Tommy Bluegum, Aunty Lena, Dad, Aunty Violet, Aunty Eva, and Uncle Norman, who became the head stockman at Edjudina. Aunty Lena, Aunty Violet and Aunty Eva all separately told us those things at different times. Dad and Aunty Eva showed us the places in the area where they had camped.
During that time, Dad took Marjorie and me to Gilgarna Rockhole and told us the tjukurrpa (Dreamtime story) about the warnampi (water snake) in Lake Raeside. It was summer time, and we camped on the ground there because it was hot. I have been back many times since with my children and grandchildren.
Another time, Dad took us to Lake Yindarlgooda and showed us where the old people used to camp there.
465 Ms Nudding's evidence included a 'mud map' she had drawn of the rock holes and other places that she was shown by the old people 'around the eastern side of Dad's country' (WS 6.1 para 45). It is an approximately quadrilateral shape, the corners of which are roughly at Menangina (NW), Edjudina (NE), Yindi (SE) and Kurnalpi (SW). She described her father as having a run (as described above at [312]). Mrs Nudding also gave evidence that he worked on other stations and at the State Battery (a facility for the crushing of ore) in Laverton, Menzies, Kalgoorlie and Ora Banda as well as a meatworks at Southern Cross 'into Merredin', but she did not include those places in his run (ts 239-240). Mrs Nudding also described the 'run' that her mother had.
466 Mrs Nudding gave evidence that when she went out with her father Arthur Newland into the bush, he taught her how to look after the land (WS 6.1 paras 51-52):
He taught me how to cart water and keep it clean. He taught me that water is the most precious thing in the bush and should never be wasted - he used to say to me 'only dirty people wash!' Whenever we came to a rock hole, he would remove any dead animals that were in it. If it was contaminated with bugs, he used burning bushes to kill them and clean the water.
Dad taught me that some other natural resources are precious. When Marjorie and I were children, we were taught not to waste any of the sandalwood trees, which our father would cut to clean and sell. Dad taught me to start a camp fire using dry pieces of wood that lay around, and to light only small fires, and put them out as soon as possible.
467 In cross examination Mrs Nudding accepted that cleaning out rock holes was something that 'they do it everywhere, they clean it over there too' (ts 300). Marjorie Strickland accepted that cleaning out rock holes was most probably something that the Walyen people on her mother's side did as well.
468 Mrs Nudding gave evidence in Wongatha that her father Arthur Newland took her to Pinjin, Mulgabbie, Gilgarna Rockhole, Yowie Rockholes and the Hunt Pinnacles (though see [644] below). They camped at Mulgabbie for about six weeks when she was 11. Arthur Newland told her that Edjudina, Pinjin and Mulgabbie were his country (WT 7850):
That's where he - he lived, and that's where he roamed, and that's where his mother roamed, and that's where his sisters, and the old people. … That's where they - that's where they - that's their run. … Roaming about there. Hanging around there.
469 Mrs Nudding also referred to hunting marlu, the red kangaroo, in the area of Lake Raeside.
470 Mrs Nudding gave the following evidence in this proceeding about the flora and fauna of Maduwongga country and the knowledge that she and her family members held about that. She said that her father did most of the hunting, and taught her how to track animals and cook meat the traditional way and taught her and her sister about other bush foods.
471 Mrs Nudding's evidence was that Maduwongga country has distinctive types of plants. She said that it has a good supply of very straight gum trees which are used for making spears. She pointed out (WS 6.1 para 47):
In the country to the west of Maduwongga country you tend to find mallee; to the east, mulga; and to the south, paperbark and black gum trees. The wood from mulga trees, which grow near Menzies, make good boomerangs and hitting sticks.
472 According to Mrs Nudding's evidence in Wongatha, the Edjudina Range is 'the border, sort of like a borderline where Walyen over that way, and Maduwonga people this side' (WT 7851). However she also said that Lake Rebecca was 'on Walyen side. Walyen people there' (WT 7852). Lake Rebecca is in fact south west of the Edjudina Range and so within the current Maduwongga claim area; perhaps it was a slip of the tongue and Mrs Nudding meant to refer to Lake Raeside. Mrs Nudding gave evidence that Pinjin, which is adjacent to Lake Rebecca, was Maduwongga territory.
473 Mrs Nudding's evidence in this proceeding was that Arthur Newland and Eva Quinn told her that Johnny's country was around Edjudina. Mrs Strickland's evidence said the same. When asked at the Wongatha hearing whether Eva Quinn said anything about where Johnny's country was, Mrs Nudding said that Eva Quinn said that Johnny was 'Around Edjudina and Pinjin and Yowie and all that' (WT 7857-7858). But this evidence is inconsistent with the concessions described in Section VII, that she did not learn about Johnny from Arthur Newland or his sisters, and I do not accept it.
474 Mrs Nudding gave brief evidence when the Court visited Hobble Gap. She described the Edjudina Range as running north west to south east and the gap as a place where (before the coming of the motor car) people could get from the country where the Court sat (on the south western side of the range, within the Maduwongga claim area) to her mother's Walyen country, noting that her mother was born in Linden. She said 'I'm talking about people that used to walk, you know, walk through - ancient people' (ts 52). She said in cross examination that people would only pass through the gap for the purposes of ceremonies. She said her father was born at Kanowna but his white father (Walter Newland) used to run the station at Edjudina. She said that KB was 'from around here' and that KB's father was 'a big boss, lawman, he was' (ts 53).
475 Mrs Nudding also gave evidence when the Court visited the ruins of the old Edjudina homestead. When asked whether she had been told about people living in that area she said (ts 66):
[KB] and them, they was tribal people, you know, on the move, going nomad style. Going here, going there. Dad had to stop here, Dad was here, he was down Pinjin Station. This old man [Walter Newland] owned that station as well. He stopped here most of the time …
476 Mrs Nudding said in Wongatha that KB and her first husband (whom she did not name) were 'camping around there and they hanging about' around Mulgabbie because Arthur Newland was at Pinjin. She received that information from Arthur Newland (WT 7853).
Marjorie Strickland's evidence
477 Mrs Strickland's evidence was that the Edjudina Range forms the eastern boundary of Maduwongga country. Lake Raeside is immediately beyond it, the land around the south-western bank of the lake being within Maduwongga country. The area to the east and north-east of Lake Raeside is Walyen country. She said (WS 6.2 para 43):
There is a gap in the hills, known as Hobble Gap, which was the way through to Mum's country from Dad's before the roads came. My parents told me that was the way they always used to go to Linden.
In oral testimony given on site Mrs Strickland said that old people including KB camped around Hobble Gap.
478 Mrs Strickland identified the southern boundary of Maduwongga country as following a number of rock holes: Bulong, Kurnalpi, Yindi, Yindarlgooda (half the Salt Lake), Yowie, Gilgarna, and Kirgella. According to her, the Kalaago/Kalamaia people are on the other side of that border, to the south east, and the Ngadju are at Norseman. The Kalamaia are also to the west of Maduwongga country and the Darlot/Ngurlu Gatha are to the north.
479 In preparing a previous native title claim, after visiting country with their then anthropologist expert witness, Dr McDonald, Mrs Strickland identified a series of rock holes along the south eastern border of the previous claim area which she considered to be part of Maduwongga country and which were mapped as being outside the original claim area from 1994, based on Tindale's 1974 map. That additional country was added to the claim area.
480 Mrs Strickland was cross examined on the fact that in the same claim, it was said that the Maduwongga people were entitled to possession, occupation, use and enjoyment of the land 'together with other Aboriginal people' (Exh 6 p 34). She disagreed with and disassociated herself from that statement, but gave no explanation as to why it had been made in the claim.
481 Mrs Strickland also, in effect, identified the north border of the area claimed by the Maduwongga as being about 5 km south of the town of Menzies.
482 Mrs Strickland's evidence was that she and Joyce went camping in the bush every weekend when they were growing up. Arthur Newland showed them the country belonging to the Maduwongga. She had also been taught the Dreaming story of the warnampi water snake in Lake Raeside, which every 20 years or so floods and the warnampi can be seen splashing and playing in the flood waters.
483 Mrs Strickland's evidence spoke of Edjudina Soak, which is just to the south east of Old Edjudina Station, and right on the border of the Maduwongga claim area (WS 6.2 paras 51-52):
From there, you can see a gap in the hills through to Lake Raeside. I was taught, and know from my own experience, that there is good hunting in that country, especially for kangaroo (marlu), goanna (yilba) and wild turkey. A lot of grasshoppers live there, which the wild turkey feed on.
I was also told about some caves up in the hills to the north-east of Edjudina Dam that have to do with traditional men's business.
484 Other evidence Marjorie Strickland gave about Maduwongga country was as follows (WS 6.2 paras 59-62):
Dad also showed us other old campsites on the east and west banks of Lake Rebecca.
During a visit before he died in the late 1990s, Uncle Ranji told me that [KB] and Dad used to go across to Kirgella Rockhole for ceremonies and trades, and that he had seen [KB] travelling there with a camel team. He said to me that [KB]'s people did not roam beyond Lake Raeside. He could see their fire sticks moving along.
When we went bush, Dad taught me not to waste water. He showed me how to cover waterholes with sticks so that animals could not fall in, and how to clean them out. He taught me how to cart water and keep it clean.
Dad taught me about safe places for camping. You cannot just go into the bush and camp anywhere - you have to avoid where people have camped before, or you will get sick. You have to go to one side and camp in a new spot.
485 Mrs Strickland gave evidence too about how her father taught her to 'hunt kangaroo, and to skin and cook it the traditional way without wasting any' (WS 6.2 para 63). She described those practices in some detail, although there was no evidence that provided a basis to suggest that any of the practices were distinctive to the Maduwongga.
486 Mrs Strickland's evidence said that Arthur Newland would refer to his 'runs', meaning various routes he would take to travel across his own country. In cross examination she said that a run was a place that he frequented, which could be for traditional reasons such as ceremonies or it could be for other reasons such as work, although later she seemed to draw a distinction between a run and 'just a work place' (ts 103-104). Arthur Newland had a run to Edjudina, which Mrs Strickland identified with an echidna Dreaming (which she did not otherwise describe).
487 However Mrs Strickland did not dispute the proposition that Arthur Newland had interests in country further afield, that is, Tjutjuntjarra country. When that proposition was put to her in cross examination she did not deny it, and she appeared to acknowledge that her father met with people who (now at least) are associated with that country (ts 169):
MR RANSON: Okay. Something you told Dr Mathieu which is recorded in one of her reports - in her supplementary report - do you remember saying to her that your father had interests in Tjuntjuntjarra country?
MARJORIE STRICKLAND: In Tjuntjuntjarra?
MR RANSON: Yes.
MARJORIE STRICKLAND: Now, he - he - Tjuntjuntjarra's only a recent community that's come up. I mean, they used to be out at Kanowna and he used to go there but that group of people moved away from the east along the trans line or from - down to - used to be Cundulee - what they called Cundulee Mission, right? And they - he had gone to Cundulee and met with those people. But those people have since - they moved up to Tjuntjuntjarra.
MR RANSON: Alright. Do you recall talking to Dr Mathieu about that?
MARJORIE STRICKLAND: Yes, I may have. I'm sure that I have, some time. …
488 Mrs Strickland's evidence also referred to Eva Quinn and Violet Quinn spending time at and knowing people from around the Granites and Norseman, but she denied that had any significance.
489 Mrs Strickland gave evidence in this proceeding that Arthur Newland told her that Simpson Newland complained about Aboriginal people, whom he called 'full bloods', 'hanging around Old Pinjin' (WS 6.2 para 19). Those people included KB as well as Lilly McDonald (known variously as Lilly Sullivan, Lilly Quinn or Lilly McDonald) and her daughter Dora Cotterill. Arthur Newland also told her that KB camped around the old Edjudina Homestead 'with the old people' (WS 6.2 para 50). He told her that KB had camped around the Yarri Pub just north of Edjudina, when he (Arthur) was at Edjudina with Walter Newland. That was when Arthur was a small boy and so must have been around the second decade of the 20th century. He also told Marjorie that KB camped at Wallbrook, Porphyry, and Mulgabbie. Arthur took Marjorie and Joyce to camp at Edjudina and at Old Pinjin. He also took them to camp at Mulgabbie, where there are very straight gum trees that can be used for making spears, which can also be found elsewhere on Maduwongga country.
490 Another place mentioned in Marjorie Strickland's evidence was an old campsite near the Hunt Pinnacles (south of Mulgabbie) which contained red ochre.
Stevie Sinclair's evidence
491 The Pilki elder and wati Stevie Sinclair gave evidence that he knew stories about places in the country that is claimed by the Maduwongga. He said that to have approval to talk about a special Wati Law site, you need to be given knowledge by the elders of the stories about the site. His grandfather and father, who were also both initiated Law men, told him stories from around Coolgardie, which is about 200 km south west of Edjudina, and within the Maduwongga claim area. Both of those ancestors are buried in Coolgardie. Mr Sinclair himself was born in Kalgoorlie.
492 Senior counsel for the Maduwongga applicant asked Mr Sinclair who spoke for the country on the Kalgoorlie side of Hobble Gap (that is, country within the north eastern border of the Maduwongga claim area). Mr Sinclair's evidence was 'Oh, especially these two old ladies here, yes' (ts 329). By that he meant Mrs Nudding and Mrs Strickland. He said that is because they had 'more connection for that area there'. He had known of them there 'from that start'. He had only heard other people talk about the connection that Mrs Nudding and Mrs Strickland had to the area 'off and on', but he said 'mostly I hear these two, Marjorie and Joyce, always talk about that area'. But he had not been to any elders' meetings where anybody talked about who belonged to that country.
493 A little later Mr Sinclair said of the country around Edjudina (ts 334):
DANIEL SINCLAIR: Most of the time I go out hunting and - round that area now and go back to Menzies. So - - -
MR McINTYRE: And if you - - -
DANIEL SINCLAIR: - - - yes.
MR McINTYRE: If you go up to that country hunting, do you have to ask anybody else before you go to that country?
DANIEL SINCLAIR: Oh, ask the traditional owner, yes.
MR McINTYRE: And so who do you ask?
DANIEL SINCLAIR: Oh, ask the people that own that area there, like Joyce or whoever, yes. Marjorie or someone like that.
MR McINTYRE: Alright.
DANIEL SINCLAIR: Because I can't, you know, go attending other people's area. I feel it's not right. Yes.
MR McINTYRE: If you wanted to get some ochre from that country, can you go to that country just by yourself?
DANIEL SINCLAIR: No. I got to ask the traditional owner there to allow to go to that - to get ochres or something like that, yes.
494 Mr Sinclair was asked whether he had heard the word 'Maduwongga'. The following evidence ensued (ts 332):
DANIEL SINCLAIR: Yes, I heard that … word.
MR McINTYRE: Have you heard that applied to any place or country?
DANIEL SINCLAIR: No. It's - no. I only know the name of that place there now. Maduwongga area there, yes.
MR McINTYRE: Well, you know that area there now. Which area are you?
DANIEL SINCLAIR: That's that Two - Two Man one. That two - same two wati.
MR McINTYRE: The same two wati - - -
DANIEL SINCLAIR: Wati, yes.
MR McINTYRE: Yes. And are you talking about at Hobble Gap?
DANIEL SINCLAIR: Yes. And even the - yes, like, that - all around that area there.
MR McINTYRE: Alright. How far does that area go?
DANIEL SINCLAIR: Well, it stems long way. There are stories but some of the stories I don't want to talk about in some sacred areas.
MR McINTYRE: Yes.
DANIEL SINCLAIR: So I'm being aware of it so, yes - - -
MR McINTYRE: Yes, I'm not - I don't need to know about any sacred stories, but that name - that word 'Maduwongga', how far does - is that applied to the land?
DANIEL SINCLAIR: Well, from that gap right across to Edjudina. All that area there.
MR McINTYRE: From the gap right across to Edjudina?
DANIEL SINCLAIR: Yes.
MR McINTYRE: Alright. Does it go any further north?
DANIEL SINCLAIR: No.
MR McINTYRE: Does it go over the Edjudina Range heading towards Leonora?
DANIEL SINCLAIR: No.
MR McINTYRE: No.
DANIEL SINCLAIR: Only to half way, the middle.
MR McINTYRE: Yes.
DANIEL SINCLAIR: Mostly where that lake and that - where we went to that area. Yes.
MR McINTYRE: So which - - -
DANIEL SINCLAIR: Mostly just round that area there.
MR McINTYRE: Yes. What about further south?
DANIEL SINCLAIR: Oh - - -
MR McINTYRE: Does it go further south?
DANIEL SINCLAIR: No. That's all different there.
495 The lake Mr Sinclair is referring to appears to be Lake Raeside, which the Court had visited two days before his evidence.
Other evidence about Maduwongga country
496 In Wongatha, Dimple Sullivan gave evidence about Maduwongga country. Dimple Sullivan's husband was Roy Sullivan, who was related to Jessop Sullivan and possibly a cousin or half-brother, and who may have been 'grown up' by Eva Quinn and Norman Forrest. Dimple called the country of Roy Sullivan Maduwongga country. According to her, that country was between Leonora, Malcolm, Murrin Murrin, Linden, Kalgoorlie, Broad Arrow, Cundeelee, Mt Ida and back to Leonora. Roy Sullivan is potentially relevant here because of his association with Eva Quinn and because there is evidence that he spoke the same language as KB (see [520] and [548], below).
497 Albert Newland gave evidence in Wongatha that (WT 3849-3850):
When I was a kid at Eucalyptus, there used to be a big camp at Christmas, with the Tucker's, Forrests', Robinsons', Roy Sullivan and others. We all used to sing and dance and have a good party in those day[s].
Eucalyptus is near Lake Carey, in the NP claim area and to the north of the Maduwongga claim area.
498 Albert Newland was methodically cross examined in Wongatha about particular places he had been in the Maduwongga claim area. It is not necessary to describe that evidence in detail; it is sufficient to say that it leaves the impression that Albert Newland was acquainted with country around Porphyry, Edjudina Station, Monaghans Well, Old Pinjin Station and Yindi, and clear about where he had not been, such as to Yarri Rockhole.
499 Albert Newland confirmed in his evidence in Wongatha that he understood that Arthur Newland was brought up by Walter Newland and worked at Edjudina Station. But it is apparent that Albert Newland was not directly acquainted with those matters. Albert seemed to have firmer knowledge of the work that Arthur Newland did at other places, after he had grown up (WT 3858):
He was always on the state batteries, mines, he was a prospector, he's done a lot prospecting, he's done a lot of sand shovelling, and he's done a lot of work on the mines, that's where he worked.
500 As for KB, Albert Newland described her as belonging to the Goldfields. He said (WT 3867):
She used to wander from there, from Coonana to, down to Ora Banda, and back to Linden, Eucalyptus, Kookynie, a number of areas.
He also described KB as going to Menzies, Edjudina and Mt Celia. Joyce Nudding identified Mt Celia with 12 Mile, and Albert Newland appeared to refer to Eucalyptus as '12 Mile Eucalyptus' (WT 3868). According to him, that was the area of land that KB was connected with, and he was not aware that she was connected with any other area of land.
501 Mrs Strickland was cross examined in this proceeding on the fact that Albert's evidence placed KB's country as going further north than the Maduwongga claim area. She disagreed that Albert Newland would have any knowledge about that.
502 In examination in chief in Wongatha, Albert Newland said that there was 'a little bit of difference' between KB's country and the country to which he was laying claim 'because we got the Porphyry yard, and we got Mt Celia in the middle, but that's a little bit further away' and '[s]he used to go there, she used to live there, and when my uncle, Norm Forrest was looking after the place, that was Mt Celia' (WT 3869). But in cross examination, Albert Newland resisted the proposition that KB's country was any different to the country to which he laid claim. He also said with some apparent force that he knew KB's country, not because he has been told, but because 'I lived with the woman' (WT 3907-3908).
503 Hector O'Loughlin knew Albert Newland. According to Mr O'Loughlin, Albert (Exh 16 para 55):
never said anything about his country. People just thought that their country was Edjudina up to Laverton, and out to Kookynie. He didn't tell us where to go, but he knew the area. He went working there, he worked on the railway at Kookynie.
504 Violet Quinn's grandson, Phillip O'Donoghue, gave the following evidence in Wongatha about Mrs Quinn's country (WT 9431):
[M]y grandmother used to tell me a lot of stories in respect to her land where she comes from and this and that and this way from Edjudina, Menangina Station up to Mount Celia, out to Pinjin, Kurnalpi. Menangina, used to speak a lot about Menangina, and I do believe and I think that even though she never said - told me where she was born, but I do believe that she told me that in her heart it was around about Edjudina area where she's always lived and resided.
505 He also referred to Violet Quinn talking about Mulgabbie and Pinjin and about living along the west edge of Lake Carey, and said that she would go as far south as Kalgoorlie. Mrs Quinn told Mr O'Donoghue that her country was also KB's country. Mr O'Donoghue's country was also the same.
506 According to Elvis Stokes's evidence his father Arthur Stokes, who knew KB, told Elvis that her country 'was Linden, Kookynie, Edjudina, Pinjin. Within the Menzies shire' (Exh 18 para 25). Mr Stokes was cross examined about the fact that the reference to Linden was a recent addition. He acknowledged that it was, and said that he 'said that because in my first statement I said I left that out, but she was more to Linden than to Kookynie, it was in that line running' (ts 375). The cross examiner did not challenge this suggestion, other than to point out that Linden was an area to which Mr Stokes and his family were connected.
507 Dora Cotterill's hearsay recollection, given by Cheryl Cotterill, was that KB and her family 'would mix with families from Laverton way. They would get rations from Linden and also go to Koronie [sic]' (CC WS para 53).
508 Ivan Forrest also said in his evidence in this proceeding that he considered that Mrs Strickland and Mrs Nudding, Arthur Newland, Albert Newland, Eva Quinn, Violet Quinn, Gertie Morrison and Phillip O'Donoghue all have the same country as him. He described that country (in connection with Albert Newland's country) as Pinjin, Edjudina, Kookynie, Yerilla and Yundamindra.
Evidence of other persons' connections to 'Maduwongga country'
509 Witnesses called by the NP respondent also gave evidence about connection to areas within the Maduwongga claim area. Hector O'Loughlin gave evidence about his father, Frank O'Loughlin, who was a Wangkayi person and a tribal elder and 'one of the top Lawmen' (Exh 16 para 7). According to Hector O'Loughlin, his father's country was from Laverton to past Edjudina. He said, 'Dad looked after country from Burtville, Minnie Creek, Laverton, come up to Edjudina, to Kookynie' (Exh 16 para 31). Mr O'Loughlin said his father 'knew around Menzies area' (Exh 16 para 32). Of his mother, Doreen O'Loughlin, who was also Wangkayi, he said (Exh 16 para 15):
Mum was born at Kanowna Bell[e], just out of Kalgoorlie. Her country was from Laverton to Karonie, including the overlap area. She travelled around through seasons. When it was a good season at Karonie she'd go there.
Mr O'Loughlin also said (para 34):
In a good rain season my mum's family would travel between Laverton and Karonie. Mum's family are not from that overlap area. They come up for some corrobboree but then finished head home. Sometimes Laverton, sometimes Kalgoorlie, sometimes Menzies.
Laverton and Burtville are north of the Maduwongga claim area and Karonie is roughly south of those towns, so passing from north to south between those places takes one through the claim area and in particular the eastern part of the overlap area that is roughly centred around Edjudina. Hector O'Loughlin himself worked at Edjudina between about 1956 and 1960, and visited at other times for work.
510 Mr O'Loughlin was cross examined about his evidence concerning his father's country. Senior counsel for the Maduwongga applicant sought to draw a distinction between having obligations to look after the country as a Law man, including the country around Edjudina, and speaking for the country. The following exchange occurred (ts 352-353):
MR McINTYRE: He didn't speak for all of that country?
HECTOR O'LOUGHLIN: I think he did.
MR McINTYRE: He couldn't - - -
HECTOR O'LOUGHLIN: And he spoke a lot about it - - -
MR McINTYRE: Well - - -
HECTOR O'LOUGHLIN: - - - to the old people and just they all get together and talk about it.
MR McINTYRE: Yes, so he talked about the country, yes. And did people have to ask him permission to go to Edjudina or to Kookynie?
HECTOR O'LOUGHLIN: No, they didn't have to ask him. He'd know whether they're - you know, that they can go there if they want to, and if they're watis, they don't have to ask.
MR McINTYRE: Has anybody ever had to ask you to go to Edjudina?
HECTOR O'LOUGHLIN: Ask me? No.
MR McINTYRE: Yes, if they wanted to go and hunt there, they didn't have to ask you?
HECTOR O'LOUGHLIN: No, they never asked me.
511 Elvis Stokes's evidence in Wongatha was that when he was a child he and his family used to camp at a number of sites including Mendleyarri (just north of the border of the Maduwongga claim area). He said that their main camping and hunting areas included Pinjin, Mulgabbie Hill, Kurnalpi, Jubilee Hill, Menangina, Kookynie, Edjudina Soak, Yundamindra, Redcastle and Linden. In Wongatha he gave evidence that the country that was important to him was from Laverton down to Karonie, including Kirgella Rocks just out of Pinjin Station, and also down to Mulgabbie. His father and his father's mother's sister told him that Aboriginal people would travel from Mt Margaret down to Karonie and would get the train back to Kookynie or Morgans. Once again this travel would have taken them across the overlap area. Similarly, he gave his grandfather, Ginger Stokes's run as 'Lake Minigwal, White Cliffs down to Karonie' (Exh 18 para 4835). Elvis's father's mother's sister, Motan, came from Mulgabbie and also 'went to Karonie and roamed to Mt Margaret and Laverton' (Exh 18 para 4840). Elvis Stokes and other family members and Aboriginal people also travelled to Christian Aboriginal Conventions at Mt Margaret, and that would take them camping through places including Menangina, Kookynie and Edjudina Soak, which are in the overlap area.
512 As to the present, Mr Stokes' evidence in this proceeding was (Exh 18 para 18-19):
I still travel around my country. I go to Pinjin, Linden, Yindi, Mt Celia. When I go out, I hunt. We get kangaroos, turkeys, goanna. It's good exercise. We have a wander around. We visit sites like Mulgabbie soak, Lake Rebecca, Edjudina Woolshed. There are big granite rocks and waterhole if you travel down from the woolshed. Near Carosue mine - I went there before it was a mine. There was a rock hole. We've been calling it Darbin rock hole, after my uncle Darbin [Murphy].
The Blizzards have connection to the overlap area. The Forrests too. And the Newlands, the O'Loughlins, Gertie O'Donoghue and Don Ballinger. Edjudina belongs to a big mob of people, including Evans, Tuckers, Bonnies, Barnes and McIntyre family which includes Wells, Newlands and Blowes.
Mr Stokes was not cross examined on this evidence.
513 The evidence of Ashley Blake in Wongatha was admitted into evidence in this proceeding. Ashley Blake's mother and the man he considered to be his father, Desmond Blake, both spoke Wangkayi. Ashley Blake grew up on Edjudina Station where his father Desmond Blake worked. He said of the Wangkayi at Edjudina that there 'was a big mob coming and going, you know'. That mob included Darbin Murphy, who had been at Edjudina for a long time. The country that Ashley Blake had on his father's side went from Linden to Edjudina and back to Kookynie, taking in Pinjin and Menangina.
514 Similarly, in Wongatha the NP claim group member Ivan Forrest gave evidence that his father's country was 'Kookynie and Edjudina country. That area goes from Menzies and other side of the highway around Mt Leonora, then over to Linden and then down towards Edjudina, Pinjin, Menangina, then back towards Menzies' (WT 5918). Ivan Forrest remembers that as a child he would 'always travel with my family down to Pinjin and to places in between such as Yerilla, Yarri and Edjudina' (Exh 20 para 10). He still travels to Pinjin and Edjudina. His witness statement says (Exh 20 paras 12-13):
I go there and do what I want to do, hunt, camp, detect for gold. I clean the rock holes in these places too and clear the water holes from dead animals like kangaroo or cows.
We (my family, brothers and children) still go hunting and camping out in that are[a].
515 Ivan Forrest's yiwarra or run goes from Kookynie to Pinjin. His evidence was that the western side of Lake Carey was his country. He said that he can speak for the country around Lake Raeside and Hobble Gap (Exh 20 para 25):
I can speak for that country. The whole lot. My ngurra,[country] my yiwarra,[run] the sites. There's not many of us who have been through the law. I can speak for all of it because I'm a wati. The other reason I can speak for that country is because that's where my ancestors come from. They've always been there. My brother Dennis can speak for it too.
His evidence was that the Stokes family can also speak for that country and that Dora Cotterill has a very strong connection to it. Some time before he became a wati Mr Forrest worked as a dogger (trapper of wild dogs and dingoes) in the overlap area including at Pinjin, Edjudina and Yerilla. His father, Stanley Forrest, and watis including Don Sinclair (Stevie Sinclair's father) and Jessop Sullivan were able to show him places of significance and explain where he should not go.
516 May O'Brien gave evidence in Wongatha. She was born in 1933 at Patricia, which was a small mine she appeared to say was located at Edjudina Station. Mrs O'Brien identified as Wangkayi. She said that she was 'born in the bush according to Aboriginal custom' (WT 832). As a child she was brought up by Eva Quinn and Norman Forrest and lived with them in the area of Linden, Eucalyptus, Edjudina and the Granites. She identified the place where she was born with the Wangkayi word, ngurra, which she translated as 'home, place'. She said she called it ngurra '[b]ecause of the emotional and psychological ties that I have with the place' (WT 839-840). She also said Mt Margaret was ngurra. Her ngurra was also the area around Linden, Edjudina, the Granites, Eucalyptus and Pyke Hollow - all places near Lake Carey and, other than Edjudina, outside the Maduwongga claim area. That was so even though her maternal grandparents were born in the Great Victoria Desert. Sometimes she would travel with her mother to Karonie, and her father, Tony, was a Law man who had men's business at Ooldea.
517 The Wangkayi knowledge holder Dora Cotterill was born in Mulgabbie and grew up around Edjudina until she was taken to the Mt Margaret mission when she was about 4 or 5 years old. Her country is Edjudina, Granites, Eucalyptus, Mulgabbie, Pinjin and Murrin Murrin. Edjudina is where her family is from. Her mother's family's country was partly covered by the Pinjin and Edjudina pastoral leases. As a child, Dora lived with KB and her family around Edjudina. Dora's recollection was that at Edjudina, KB and her husband 'lived the traditional way with their family on the land' and that they 'travelled around a bit too' (CC WS para 51). Those matters appear in the evidence of her daughter in law, Cheryl Cotterill. The area around Linden, Edjudina, Yarri and Murrin Murrin was her father's country and is her (Cheryl's) country. She said (paras 35-37):
That's where my mum and dad took us. That's where my spirit is. I feel happy there. We were always there as kids. When I was working I couldn't get there as much but whenever I get there now it feels like home. I feel calm. You renew yourself when you go back home.
518 Cheryl Cotterill's father, Morris Brownley, was born at Yarri in 1926. He was a Walyen and so a member of a tribe within the Wangkayi. Cheryl Cotterill accepted that the area was also the country of Mrs Strickland and Mrs Nudding's ancestors. But she also named several other families she considered to be associated with the overlap area.
519 I have set out above (at [383]) Joyce Nudding's evidence that there were other Aboriginal people who lived at Edjudina during KB's time, perhaps many people, but she did not know who they were. Similarly, in Wongatha Mrs Strickland gave evidence that other people 'hung around in the area [of Pinjin] all the time' with KB, but she did not know who they were (WT 7663). She accepted in Wongatha that KB was one of the people who was the right person to speak for the country in that area during that time, but could not name the other people.
520 In this proceeding, counsel for the NP respondent asked Mrs Nudding about other people associated with the Edjudina area. She confirmed that Norman Forrest had spent time around Edjudina when KB was alive, including working on the station there and becoming head stockman. Norman Forrest was born at Pindinnis Soak, which is north of the overlap area. Mrs Nudding did not accept that Norman Forrest's country included the Edjudina area. She accepted that he would have had some rights 'in an Aboriginal way' to that country, but, she said 'not overall rights. In other words, he wouldn't have went over the top of my grandfather', by whom she meant KB's father, Johnny (ts 313). But she went on to say of Norman Forrest (ts 314):
Well, he lived around there and that. He would have hunted and gathered and done all those sorts of things what he did.
MR EDWARDS: And are you saying that he would have had rights to do that, like Aboriginal way?
[JOYCE] NUDDING: In Aboriginal way he would have had some rights to do them things, yeah.
MR EDWARDS: So you're saying that he wouldn't have had a right to talk for that country, is that?
[JOYCE] NUDDING: Yeah. He moved into the family and while you got senior people ahead of you there you can't - you know. Are you going to go over the top of them? I'm just saying - not you, but I'm making - giving you an idea, like you can't go over the top of the senior people in there. You got to go through - especially in the Aboriginal way, you got to speak to the senior people who happen to be there.
MR EDWARDS: And what about your - - -
[JOYCE] NUDDING: Maybe he became senior people afterwards, who knows, you know, because he was there for a long time working with old - - -
MR EDWARDS: Are you saying that over time that he could have got those rights there?
[JOYCE] NUDDING: He would have - he may have got some rights there, yeah, after a while, who knows. When people die out somebody has got to take their place but like I said they don't give it to any willy-nilly people. They give it to only certain people, you know.
521 Mrs Nudding also accepted that Roy Sullivan had spent time around Edjudina, including with Norman Forrest and Eva Quinn but she was not sure that it was his country and thought that his country was around Darlot (outside the Maduwongga claim area). She did not discount the possibility that May O'Brien was born near Edjudina, Pinjin or Mulgabbie but said that whether that area was May O'Brien's country depended on where her parents came from. She accepted that Darbin Murphy and Wobalie Blizzard worked at Edjudina and were watis.
522 Mrs Nudding also did not discount that Dora Cotterill may have been born at Mulgabbie and that she and her mother Lilly McDonald returned to Edjudina or Mulgabbie after running away from the Moore River Settlement. But she spoke of that in terms of them stopping there on the way to Laverton rather than staying there for any length of time. Mrs Strickland's evidence was similar. She agreed that Dora Cotterill had spent time with KB, but did not accept that being born at or near Edjudina gave Dora rights to country there. She neither accepted nor denied that having camped with KB and spent time with KB and her daughters (Mrs Nudding's aunts) would give Dora Cotterill some rights to country, although she queried whether stopping in a place for six months would give someone rights if they did not have the ancestry necessary to establish a claim. But she would not accept that the people I have just mentioned - Norman Forrest, Roy Sullivan, Stanley Forrest, May O'Brien, Darbin Murphy, Wobalie Blizzard, Lilly McDonald, and Dora Cotterill - were traditional owners of the area around Edjudina along with KB.
523 Mrs Strickland was also cross examined about the claims of other Aboriginal people to rights and interests in the area around Lake Rebecca and the overlap area. She did not know whether Roy Sullivan had any rights. She did not accept that Stanley Forrest had any rights in respect of that country. She accepted that May O'Brien could have been born at Edjudina, and that she spent time around there as a child and had been looked after by Eva Quinn and Norman Forrest. But she appeared not to accept that it was May O'Brien's country. She accepted that it was possible that Wobalie Blizzard worked at Edjudina Station as a stockman. When it was put to her that Darbin Murphy and Wobalie Blizzard and Stumpy Edwards all had rights in the country around Edjudina too, she initially denied it, saying 'They're different people. They only come there to work' (ts 221). But shortly after that she said (ts 222):
I don't know. I can't say anything is - well, anything is possible, but look, I don't know. I'd have to tell you honestly I don't know what those rights were. … But I do know - sorry. I just knew that they don't come from there, they come from other way.
Observations about the lay evidence as to Maduwongga country
524 The separate question is about KB and so about the position during her lifetime. The evidence about the country identified with her and with others is relevant in so far as it concerns the position at that time. I will tend to put more weight on evidence that is closer in time to KB's lifetime, so that the most weight is accorded to the evidence (by way of hearsay, or direct) of those who knew or had met KB.
525 From the note on his genealogy 118, it appears that KB told Tindale that the 'Madu woŋga' ranged from 'Linden, Mulline, Pinjin, Kanowna, & nearly/rarely[?] to Menzies'. Tindale's journal entry is largely consistent with that, save that it adds 'occasionally to Murrinmurrin & rarely to Menzies (recently)' (and as mentioned, Murrinmurrin is probably a slip for Mulline).
526 Dimple Sullivan's evidence in Wongatha identifies a wider area as Maduwongga country, which is different to that identified in the Tindale materials, albeit with a great deal of overlap. But it is not apparent from the evidence on what basis she made that identification, and the Maduwongga applicant did not rely on her evidence on this point in closing submissions, so I put no weight on it.
527 The best evidence as to what comprised KB's country is the evidence about where she went during her lifetime, which appears to have been spent camping and moving about for extended periods of time, in Mrs Nudding's words 'on the move, going nomad style' (ts 66). The evidence about where KB went in that way is consistent. She spent a lot of time around Edjudina and Old Pinjin station, as well as Yarri just north of Edjudina. She would go to Kirgella Rockhole (near Pinjin) for ceremonies and trading. Hearsay evidence of Arthur Newland, who of course knew her, also places her at Porphyry and Wallbrook, both near Edjudina, and further south at Mulgabbie (see [489] above). But the evidence in Wongatha of Albert Newland, who also knew her and spent time with her as a child, indicates that she would also go further afield to Coonana, Kanowna, Broad Arrow, Ora Banda and Kookynie, Eucalyptus, Linden, Menzies and Mt Celia (see [457(e)], [456], [500] above). Hearsay evidence of Violet Quinn via Phillip O'Donoghue similarly places her as moving around Edjudina, Pinjin, Kurnalpi, Lake Carey, Kalgoorlie and Mt Celia, as well as Menangina, some 50 km west of Edjudina (see [504]-[505] above). In broad terms, then, KB's country corresponds roughly to the overlap area, although she also ranged north of it (and north of the Maduwongga claim area) to Linden, Kookynie and Mt Celia and south of it to Broad Arrow, Ora Banda, Kanowna and Kurnalpi. She appears to have had particular affinity for an area of country in the eastern half of the overlap area centred at Edjudina and going west to Menangina, south to Mulgabbie and Old Pinjin, and east to Pinjin and Kirgella Rocks. Lake Rebecca runs from north west to south east roughly through the middle of this area, so it will be convenient to refer to the area now on by the neutral designator of the Lake Rebecca Area.
528 The identification of the Lake Rebecca Area with KB is consistent with the inevitably sparse evidence about the country of her father, Johnny, namely Edjudina, Pinjin and Yowie (Yowie Rockhole is about 25 km south of Old Pinjin). It is also consistent with the area identified with Arthur Newland, her son, namely Edjudina, Lake Raeside, Yarri, Porphyry, Old Pinjin, Pinjin, Yindi, Yowie, Lake Rebecca, Lake Yindarlgooda, Mulgabbie, Gilgarna Rockhole and the Hunt Pinnacles.
529 It is one thing to identify the Lake Rebecca Area with KB, however, and another to identify it as the country of her and her family exclusively, and yet another to identify that as the country of a Maduwongga society. On the latter two points the evidence is not nearly so clear or convincing; rather, it goes against the Maduwongga applicant's case.
530 Albert Newland's evidence in Wongatha, to which I give weight, has KB going outside the Maduwongga claim area (which essentially corresponds to Tindale's map) and in particular north of the Edjudina Range and Lake Raeside, suggesting that those natural features are not as significant to the identification of a Maduwongga group with the claimed Maduwongga country as the Maduwongga applicant would make out.
531 Most significantly, the evidence that people who were alive around KB's time that were identified as Wangkayi or Walyen - that is, Western Desert people - also treated the Lake Rebecca Area as their country is ample and convincing. Of greatest weight in that regard is the hearsay evidence of Dora Cotterill, whose country includes Edjudina, Mulgabbie and Pinjin. Cheryl Cotterill's evidence also identified her father as born in Yarri near Edjudina. In addition, there is Hector O'Loughlin's evidence about the country of his parents, whose lives overlapped with KB's, which has them identifying with country that includes the Lake Rebecca Area. Ashley Blake's evidence about his parents' country also focusses on Edjudina, Pinjin and Menangina. Ivan Forrest's evidence about his father's country and his own country including time spent there as a child also concerns the same area. Likewise May O'Brien, who was born in 1933, when KB was alive, and who gave evidence in Wongatha; she was born at Edjudina and gave evidence of her connection to the place for that reason. Elvis Stokes's life has not overlapped with KB's, but his evidence shows close identification with the same country and identifies it with a large number of Wangkayi people. He referred to the connection of the wati Darbin Murphy with the land, including that a rock hole near the Carosue Mine, that is, near Mulgabbie, is called Darbin's Rockhole.
532 There is also the ample evidence recounted above that Wangkayi people alive today identify with and speak for country that includes the Lake Rebecca Area. While that does not go directly to the position in KB's time, it is consistent with it.
533 There is also the broader evidence, including evidence given by Mrs Nudding and Mrs Strickland, about numbers of Aboriginal people camping and living around the Edjudina area during KB's time. Mrs Nudding and Mrs Strickland could not identify those people. But since only a small number were those who (now at least) are called Maduwongga, and since there is evidence of numbers of Wangkayi people moving through and occupying the area at times including those discussed above, I infer that those other people were Wangkayi people.
534 There is also the evidence of Stevie Sinclair, a knowledgeable Pilki elder, on which I place weight. Mr Sinclair's evidence is to the effect that Mrs Nudding and Mrs Strickland have a close connection with the Lake Rebecca Area and speak for that country. That is not in contention in this proceeding, and I accept it. But Mr Sinclair's evidence was also to the effect that Hector O'Loughlin spoke for the Lake Rebecca Area. Mr Sinclair himself had heard a tjukurrpa story about Hobble Gap from desert people and seemed to identify the stories running through that area especially with a 'spinifex mob'. And while he identified the Lake Rebecca Area with a group called the Maduwongga, it was not at all clear that the identification went back to KB's time: see his evidence set out at [494] above. When he was asked whether he had heard the word Maduwongga applied to any place or country, his answer was ' No. It's - no. I only know the name of that place there now. Maduwongga area there, yes' (ts 332). It appears that the source of his knowledge of a Maduwongga group was Mrs Nudding and Mrs Strickland themselves (see [492] above: 'mostly I hear these two, Marjorie and Joyce, always talk about that area'.) I interpret Mr Sinclair's evidence to be to the effect that he has recently heard that country referred to as Maduwongga country, and the inference I make from the balance of his evidence is that the people who have called it that in his presence were Mrs Nudding and Mrs Strickland. His evidence provides no support for the notion that this or any other country has been known as Maduwongga country in a widespread way, or at any time before native title claims came to be made.
535 So the preponderance of evidence does not support any proposition that the Lake Rebecca Area, or any area, has been conceived of as Maduwongga country by anyone other than the people who comprise the Maduwongga applicant, or by anyone before the introduction of native title. And it does support the proposition that the Lake Rebecca Area is part of the country of a number of people identifying as Wangkayi and Walyen, and was during KB's time. I will return to that when I come to consider whether the NP respondent has discharged its burden of proving that the laws and customs acknowledged and observed in the overlap area were the laws and customs of the Western Desert.
536 This section concerns the existence and distinctiveness (or not) of a Maduwongga language or dialect as another possible marker of the existence of a distinct Maduwongga society.
537 In opening submissions the Maduwongga applicant submitted that KB spoke a WDL dialect with southern influence that was 'not mutually intelligible' to speakers of WDL dialects found at Mt Margaret and Laverton (outside the Maduwongga claim area and within the northern boundary of the NP claim area) (para 36(6)). However by the time of closing submissions, the position of the Maduwongga applicant was that the dialects were mutually intelligible 'granted familiarisation' (MCS para 24(6)). The other parties did not differ significantly from the Maduwongga applicant's ultimate position in that regard.
538 The Maduwongga applicant still contends, however, that the identification of a dialect with a group of people who occupied a certain area of land means that the group was a land-holding group. The other parties do not agree with this. Indeed, the State (and the other respondents, who adopted its submissions) submitted that the concession that the dialects were mutually intelligible 'in and of itself' must indicate that KB was a Western Desert person.
539 The Maduwongga applicant's change in position means that there is no need to go into the lay evidence in detail. But it is still appropriate to describe it briefly, as the abandonment of the claim of mutual unintelligibility is relevant to Mrs Nudding's and Mrs Strickland's credibility. Their evidence seems to be the source of that claim, although Dr Mathieu seems to have endorsed it. Also, aspects of the lay evidence are potentially relevant to the question of whether KB observed Western Desert laws and customs. It will then be necessary to consider the expert evidence, in particular on the question of whether a language or dialect identifies a land-holding group.
Lay evidence about a Maduwongga language
540 In her evidence in this proceeding, Joyce Nudding said that her father, Arthur Newland, as well as her aunts Eva Quinn and Lena Judd (the daughter of KB's sister) all spoke to each other in a language that she, Joyce, was never taught. She said that her aunt Violet Quinn also occasionally used a few words in that language. She said she was told that it was the Maduwongga language, but told by whom she did not say. Mrs Nudding said that nobody speaks it now and she only knows a few words because her father used to speak it. Mrs Nudding noticed over the years that Lena Quinn would always speak to Arthur Newland 'in the Maduwongga language'.
541 Mrs Nudding also said that at the funeral of her cousin Teddy Forrest, who was the son of Norman Forrest and Violet Quinn, Arthur Newland said that now that Teddy was gone, he (Arthur) was the last of the old people who could speak Maduwongga, and that he had nobody to talk to in his own language.
542 Mrs Nudding was able to identity a few specific Maduwongga words. However in cross examination, she was taken to words in a dictionary of the Wongatha language (Wangkanyi Ngurra Tjurta Aboriginal Corporation Language Centre, Wangkatha Dictionary (2002)) with evident similarity to the words just listed. She accepted that several of the words (not all of them) were WDL words.
543 Mrs Strickland's evidence was that she was taught the Walyen language by her mother, Lallie Akbar, who spoke it all the time. But she remembered 'the old Maduwongga people' - Arthur Newland, Eva Quinn and Lena Judd - speaking together in a language that she was never taught and that she did not understand (WS 6.2). She said that Jessop Sullivan, who was married to Violet Quinn, also seemed to speak to Arthur Newland in that language, although he was not Maduwongga himself, having come from Darlot. In cross examination she appeared to say that Lena Judd and Eva Quinn would use this language when they were annoyed with Arthur Newland, and Mrs Strickland (then a child) did not understand it.
544 Mrs Strickland said that she knew a couple of words in that language, but she believed that Arthur Newland was the last fluent speaker. Like Mrs Nudding, she said that her father said at Teddy Forrest's funeral in 1987 that he was the last of the old people who could speak Maduwongga and that Arthur had nobody left to speak to in his own language. She said, however, that Lena Judd, who appears to have passed away in about 1979, would always speak to Arthur in the Maduwongga language.
545 Like Mrs Nudding, Mrs Strickland was cross examined about the few 'Maduwongga' words she knew, on the basis that a different dictionary (Wilf Douglas, An Introductory Dictionary of the Western Desert Language (Institute of Applied Language Studies, Western Australian College of Advanced Education, 1988)) showed them to be Western Desert words. Mrs Strickland had no real answer to that.
546 Mrs Strickland was also cross examined about Dora Cotterill. Mrs Strickland accepted that Dora Cotterill may have spent time with KB when she was a small girl. She also accepted that it was possible that Dora Cotterill may have learned the language of the people from around the Edjudina and Mulgabbie area. Dora Cotterill's recollection, as given in the evidence of her daughter-in-law Cheryl Cotterill, was that KB, Eva Quinn, Violet Quinn and Arthur Newland (all of whom she knew) spoke Wangkayi: 'A slightly different dialect but still Wangkayi' (Exh 19 para 45-46).
547 Albert Newland said in Wongatha he was familiar with the languages spoken in the Wongatha claim area, but 'the Aborigines who speak, they all speak mostly the same language' (ts 3871). Albert Newland's evidence in Wongatha was that he spoke 'Wangkayi', having learned it at the Mt Margaret mission. He also called the language he spoke Wongatha.
548 Albert Newland said that KB spoke 'a similar, but slightly different Aboriginal language' to the Aboriginal language he spoke, as well as English (WT 3849). Other people Albert Newland identified as having spoken it were Sandy McGregor and Roy Sullivan. Arthur Newland also spoke Aboriginal languages, including the same one as KB. When asked whether he had heard of a Maduwongga language, Albert Newland said he had heard of a language, but was never told it was Maduwongga, and when he was asked whether 'that different language' could be described as Maduwongga he said he 'wouldn't have a clue' (WT 3871, 3892). Mrs Strickland was also cross examined in this proceeding about whether Albert Newland was able to speak Wangkayi language and whether he would have known what language KB spoke. She ended up admitting the possibility that he could have spoken that language.
549 Ivan Forrest's evidence in this proceeding was that Wangkayi people speak the same language, but different dialects: 'Here we say "yua", in Ooldea they say "oua" meaning "yes"' (WS para 5). According to Mr Forrest, 'Joyce and Marjorie speak the same language as the rest of us Wangkayis. They speak Wongatha. Arthur spoke slightly different but my father could understand it. Some words were similar, some were different, just like a dialect. Definitely still Wangkayi' (Exh 20 para 56). Mr Forrest said that Dora Cotterill was the only person who can still speak that language.
550 Hector O'Loughlin's evidence in this proceeding was that Arthur Newland spoke the same language as his (Mr O'Loughlin's) people, that is, Wangkayi: 'We all thought he was the same tribe as we were' (Exh 16 paras 7, 49). However, his evidence was also that Mrs Nudding and Mrs Strickland 'didn't speak too much Wangkayi' (Exh 16 para 57). Similarly Elvis Stokes said that Arthur Newland, with whom Elvis's father Arthur Stokes was good friends, spoke Wangkayi. He said that he speaks a bit of Wangkayi language and that people from areas like Warburton, Coonana Wangkayi, Tjutjuntjarra and Wiluna 'speak a little differently, and sometimes the same', but that he can understand them (WS para 4869).
Expert evidence about a Maduwongga language
551 Neither of the two expert witnesses had qualifications in linguistics or specialisation in the study of Aboriginal languages. The only evidence of a person with those qualifications was that of Dr Mark Clendon, an expert linguist who gave evidence in Wongatha, as quotes from his report were put into evidence via Dr Morton and not objected to or contested.
552 It is convenient to introduce the expert evidence by reference to proposition 2.5 in the Expert Conference Report, which concerned the existence of a distinct language or dialect in the overlap area, and whether that language or dialect identified a land-holding group. Both experts agreed that there was a dialect associated with Edjudina and Canegrass that would have been distinguishable from another dialect to the north-east (that is, spoken in the NP claim area). They also agreed that those dialects were likely mutually intelligible Western Desert dialects with relatively minor variations. The only difference between the experts on this point was that Dr Mathieu's view was that they were mutually intelligible 'granted familiarisation'.
553 The main difference between the experts concerned the second part of the proposition: Dr Mathieu maintains that the dialect did identify 'a landholding group'. Her view is, 'When a dialect is specifically connected to a territory, it follows that the dialect identifies the people who have a common association with that territory'. Dr Morton, on the other hand, does not consider that a dialect identifies a land-holding group. In his view, 'The language is identified with an area of land and the people who closely identify with that land also identify with or "own" its language. The language identifies an ethnic group rather than a landholding group'.
554 In Mathieu II (para 43), Dr Mathieu says that 'Desert linguistics reveals a complex of internal relations linking people to territories, territories to people and people to each other - and not least people to ritual practices'. She considers that language differences 'did not only identify the origins of speakers, as dialectal differences do in the Desert to this day, but that they identified a socio-territorial boundary' (para 120). However the only support she cites for that is a comment attributed to Fred McGill in the Kalgoorlie Western Argus from 1897 (see [409(3)] above): 'In the old times each tribe had its own district, and they were separated by differences of language, and when they came to another tribe's territory and found a difference in the tongue they would fight …'.
555 In Morton II, Dr Morton cites Dr Clendon's report and says that a vocabulary that Bates apparently collected at Canegrass from a person called Nyeerbeejee 'was "very close, if not identical" to the speech of the contemporary Western Desert language speaker, Dora Cotterill' (para 55). Dr Clendon's summary of an interview he held with Dora Cotterill was that she remembered the language that her mother spoke and 'She also states that her mother was born at Kurnalpi, some 50 km. north-east of Kalgoorlie, and that her mother's family's country is covered in part by the Pinjin and Edjudina pastoral leases, some 100 to 150 km. north-east of Kalgoorlie' (para 56). Dr Morton reports Dr Clendon as concluding that Dora Cotterill's speech was (Morton II para 57, footnote removed):
'squarely of the Western Desert type', and in a certain phonetic respect typical of 'the south-west corner of the Western Desert region'. Nevertheless, it had 'a number of uncharacteristic traits' which suggests to me [i.e. Dr Morton] that it was likely distinctively local to her mother's country, apparently including Pinjin and Edjudina. At any rate, Dr Clendon's expert testimony informs my opinion that it is highly likely that a form of the Western Desert language was indigenous to parts of the Maduwongga/Nyalpa Pirniku overlap area, as well as to an indeterminate range somewhat south of there, when Europeans arrived in the Eastern Goldfields in numbers during the 1890s.
556 Dr Morton also refers to Bates's data about Jurdain, who was Nyeerbeejee's uncle (Morton II para 58). Edjudina was Jurdain's parna or ground. According to Dr Morton, Jurdain had a section name, as did everyone else on Bates's genealogy for him (this Bates genealogy is in evidence). Jurdain gave Bates a list of short sentences which contained a number of Western Desert words.
557 Dr Morton then notes (Morton II para 59) that KB:
clearly identified herself as a speaker of a Western Desert dialect - 'I say madu': but given what she also said about not having sections in her area; about being given a section at Laverton; and about coming in from the east', it is improbable that her language actually belonged to Edjudina, an area apparently familiar with a version of four sections by about the turn of the century - although this is not to say that she could not be understood by speakers of the local dialect, or that her children did not pick that dialect up.
558 Dr Mathieu was not given an opportunity to expand on her view that the linguistic group defined a land-holding group in her oral evidence. But senior counsel for the Maduwongga applicant did cross examine Dr Morton on the subject. Dr Morton accepted that 'there is a definite relationship between language and place' and noted that when people reach the end of a part of a song line that is in a particular territory they can change the language they are singing in as they cross 'the border' with another territory (ts 711). He also accepted that in native title matters, 'language has been regarded as a significant aspect of determining the land-holding group' (ts 711). He said that people generally talk about inheriting an identity and it usually has a language name or relationship with a language.
559 Dr Morton still, however, described it as 'an ethnic identity… in that same way that ethnic - you know, if you like, my ethnicity is English' (ts 711). He drew a distinction between inheriting a language, and thus an identity, and inheriting an estate 'which is of a narrower part of the country'. He later illustrated this by saying that being a Cockney Londoner did not mean one had land rights in London. As far as Aboriginal laws and customs go, he considered that rights to land pass 'at the estate level' to local groups that, it seemed, he considered were smaller than the language/ethnic groups of which he spoke.
560 Indeed, in Morton I Dr Morton drew an explicit equivalence between 'dialectical' territories and groups and 'the kind of mapping which Tindale attempted', that is, the division of continental Australia in various tribes such as the Walyen and the Maduwongga. In the Western Desert this division occurs by reference to dialect, rather than language, since all WDLs are largely mutually intelligible, and so can be said to constitute a single language.
561 Dr Morton did accept that ethnic identities reflected in language groupings have formed the basis of native title holding corporations under the European-inherited legal system that prevails in Australia today. However that does not mean that the group that so incorporates, on the basis of an ethnic identity, may not share laws and customs with neighbouring groups.
Observations about the evidence concerning language
562 It appears that a WDL dialect was spoken at effective sovereignty and during KB's time at places in the Maduwongga claim area between, at least, Canegrass (roughly in the centre of the north-western quadrant of the claim area) and Edjudina.
563 Speakers of that dialect appear to have included Nyeerbeejee and Dora Cotterill. It is unlikely that KB and her children spoke the same dialect, though. I put more weight on Dora Cotterill's evidence in that regard than on Ivan Forrest's, as Dora Cotterill knew KB. It appears that the dialect that KB spoke was also different from the Walyen language that Mrs Nudding and Mrs Strickland learned from their mother, Lallie Akbar.
564 All this presents a picture of several mutually intelligible WDL dialects, some with relatively minor differences in vocabulary, being spoken in and around the Maduwongga claim area at effective sovereignty and during KB's time. It is of course significant that these are all Western Desert dialects. This all means that the Maduwongga applicant has not established that language provides any reliable marker of a distinct Maduwongga society.
565 In relation to the identification of dialect with land holding, this is another instance where I prefer the evidence of Dr Morton because his expertise is more firmly established than that of Dr Mathieu, and his impartiality is more evident. Dialect can function as a marker of ethnic identity and ethnic groupings can be identified with particular territories. But that does not mean that the speakers of a dialect necessarily 'hold' all of the land in that territory, in the sense of having rights and interests in relation to its land and waters. In the end I did not understand the experts to be far apart on this point. In any event, it may be somewhat academic given that it is not possible to identify a distinct dialect being spoken across the Maduwongga claim area.
566 As Dr Morton mentions, Tindale's note on KB Card B records KB saying something about the language she spoke. I will return to that in Section XII in the context of the question of what KB was telling Tindale about the group (or tribe or society) she belonged to.
X. MADUWONGGA LAWS AND CUSTOMS
567 Up until now I have canvassed the evidence as to the existence of a distinct Maduwongga group, with its own distinct language and identifiable country. But as discussed above, such evidence, while relevant to the key question, cannot itself provide the answer to it. I will now turn to the evidence that is directly about that question, namely whether, during KB's time, such a group acknowledged and observed their own body of laws and customs under which they have rights and interests in relation to land and waters. Given the spiritual dimension to Aboriginal laws and customs which has been repeatedly acknowledged in this area of law, this section will consider matters such as tjukurrpa and it will also consider evidence about ceremonial and ritual practices. While these things may not bear directly on rights and interests in land, they must not be hemmed away from it by artificial distinctions imposed by European modes of thinking. All the same, the nature of the evidence in this case did not give much emphasis to the normative dimension of these laws and customs. This section will also touch on the contention of the Maduwongga applicant that there is a relevant distinction between ritual and ceremonial responsibility for a place and rights and interests in relation to that place.
The distinctiveness of Maduwongga customs
568 To start with some broad evidence, Joyce Nudding gave evidence in her witness statement as follows (WS 6.1 para 34):
We were taught stories by the old people. The teaching was strict because they wanted to make sure that, when they died, their knowledge would be passed on to their children and grandchildren. It was very repetitious - day after day the same things were repeated to us. We did not always wish to be taught, when we were young. But we were taught 'this is the way things are done'. There were no grey areas. We did not ever question the old people's authority.
569 This evidence does not say who taught her the stories or taught her about how things were done. While it may not have been appropriate to disclose in a public forum details of some of the stories or ways of doing things, even a broad description of particular customs is mostly lacking from Mrs Nudding's and Mrs Strickland's evidence. The only story in Mrs Nudding's evidence that was described at all was that of the warnampi water snake tjukurrpa, which it is clear that the Maduwongga shared with the Walyen, as discussed at [464] above and [626] below.
570 Another matter reducing the assistance the Court can derive from this broad evidence is that Mrs Nudding confirmed in cross examination that much of what she was taught by old people included old people on her mother's Walyen side such as her older cousin Doris Thomas.
571 At one point, cross examining counsel put to Mrs Nudding that 'really there are no differences between the way that your aunties and your father as Maduwongga people, the way that they did things culturally' (ts 301). Mrs Nudding's answer did not permit him to finish the proposition he wished to put, but in view of the context of the questions it was clear to all, including Mrs Nudding, that he was asserting equivalence between Maduwongga and Walyen practices. Her response was as follows (ts 302):
Well, they probably did things a little bit different during their time, when they're alive, you know with their people. See, a lot of their people all died out. … Maduwongga people died out a lot. A lot of them. You know, they died and they can't - we can't continue the things because it's just a family of us, you know? … I don't know how to explain it to you.
572 The cross examiner then repeated the proposition, in terms, and the following (long) exchange ensued (ts 302-303):
JOYCE NUDDING: They did have their own rules that they followed, they stick to themselves. A lot of people died away. But their ancestors and other people - probably all passed away. So, so that they were just a little group by themselves, and then there's the other mob - my mother's side - whereas a big range and bit more people. You know, more people all down there and a lot of my mother's old people all passed out now. You've got a new lot of people that migrated from somewhere else all coming there now, from down Noongar and everywhere else. And people from Noongar land all coming up this way.
MR EDWARDS: Just to be crystal clear, can I take it from what you're saying that you disagree with what I said?
JOYCE NUDDING: I got to disagree with you?
MR EDWARDS: No, I'm just asking, do you agree or do you disagree?
JOYCE NUDDING: What do we got to agree on?
MR EDWARDS: Alright. I'll say it again. What I'm saying is, is that your aunties and your dad - - -
JOYCE NUDDING: Yes.
MR EDWARDS: - - - they did things the same way, cultural way, as Aboriginal people, they did the same things, did things the same way as Waljun people, do you agree with that?
JOYCE NUDDING: Well, when we was over there in Waljun land, the Waljuns run it their way. Let me put that to you that way.
MR EDWARDS: I don't think I understand Mrs Nudding, so do you agree that - - -
JOYCE NUDDING: Well, when we in Rome, do what the Romans do. In other words, you're in somebody else's thing, they run the show.
MR EDWARDS: Okay.
JOYCE NUDDING: Can't say much over here because we only a little bit of people and we haven't got too many things - a lot of Maduwongga people here and they were - most probably was a lot of old people here - they can't carry on - we can't carry on all these other things that they're doing. So you either adjust and mix or - what is it? I can't say.
MR EDWARDS: Does that mean you disagree?
JOYCE NUDDING: Sorry?
MR EDWARDS: Does that mean that you disagree?
JOYCE NUDDING: I would say this. They had their own rules and regulations. Right?
MR EDWARDS: Okay, but you can't - can you tell me what any of those are?
JOYCE NUDDING: I can't tell you what those are because they're ancient.
MR EDWARDS: Okay.
JOYCE NUDDING: Right? But my father did go and camped where the - keep bringing up the - you know what I mean don't you?
MR EDWARDS: I do. Yes, I understand.
JOYCE NUDDING: You understand what I'm saying.
MR EDWARDS: I understand what you're saying Mrs Nudding.
573 This passage needs to be assessed as a whole together with the evidence I have described and set out in the rest of this section. And it needs to be assessed bearing in mind what may well have been a reluctance on the part of Mrs Nudding to describe any customs in detail or to express categorical disagreement with her interlocutor. There were times when she and the cross examiner seemed to be at cross purposes.
574 However, even allowing for those matters, I consider that this evidence does not support the Maduwongga case. While there were points at which Mrs Nudding appeared to wish to assert that particular customs or practices were distinctive to the Maduwongga, she was unable to bring herself to do so in clear terms, partly because she did not have sufficient knowledge of the traditional customs to do so and partly because she was unable to point to any significant differences between the customs she claimed as Maduwongga and the Walyen customs she knew about. The overall effect of this evidence is to confirm that some of the customs Mrs Nudding described were observed by both the Maduwongga and the Walyen, and to leave the Court unable to identify any differences between the other customs said to have been Maduwongga and customs of the Walyen.
575 Marjorie Strickland's evidence was that Arthur Newland 'brought Joyce and me up as if he had two sons. We spent most of the time with the old people, including Dad and Aunty Eva' (WS 6.2). Like Mrs Nudding, her evidence was (WS 6.2 para 37):
I was brought up with the old people teaching me 'this is the way things are done'. The teaching was strict and repetitious - day after day the same things were reinforced to Joyce and me. There were no grey areas. I did not always wish to be taught when I was young, but I didn't ever question the old people's authority. If I didn't do what I was supposed to do, I would be punished.
576 However the evidence that Mrs Strickland gave as to the content of any Maduwongga laws and customs was sparse. She said:
I understood when I was young that Dad had some involvement in Law business because he always went away during Law business time. He never discussed any of it with me because it is traditionally forbidden for initiated men to speak about such things to women, especially their daughters.
577 Mrs Strickland nevertheless gave some brief evidence as to spiritual beliefs connected to country which I set out below and some even briefer evidence about marriage customs and skin groups which I describe in the next section of this judgment.
578 Mrs Strickland was also cross examined about evidence she gave in Wongatha about differences between Maduwongga laws and customs and 'Wongatha' laws and customs. That evidence was as follows (WT 7673-7674):
MR WALKER: You've talked about the Wangkayi way in your documents. Following the Wangkayi way in fact I think you've said is one of the tests or criteria for being part of the Maduwonga group, is that right?
MARJORIE STRICKLAND: When I'm saying Wangkayi way, I'm talking about black fella way or Aboriginal way, or traditional way.
MR WALKER: Okay. Well, are there any differences between the Wangkayi way and the Maduwonga way, just talking very generally here. Any differences at all? Are there any differences between Wangkayi way and Maduwonga way?
MARJORIE STRICKLAND: Well, it's still black fella way.
MR WALKER: Are there any customs that are different between Maduwonga - - -
MARJORIE STRICKLAND: Not to my knowledge.
MR WALKER: No, all right. So the Maduwonga customs are all the same as those of people who identify as Wongatha?
MARJORIE STRICKLAND: There may be differences, but I'm not sure of the differences.
MR WALKER: Well, if there may be differences - - -
MARJORIE STRICKLAND: I don't know what they are.
MR WALKER: - - - who would know, if not you, if you're an elder of the Maduwonga?
MARJORIE STRICKLAND: There may be differences, I'm not too sure what they are, but if there are I don't know what they are. They're all similar.
579 Mrs Strickland was not specifically taken to this passage of transcript when she was cross examined in this proceeding, as follows (ts 155):
MR RANSON: I understand that evidence. Can I ask you about something else that you gave evidence about before? You were asked before about any differences between Maduwongga laws and customs and Wongatha laws and customs. Do you remember being asked about that, long time ago?
MARJORIE STRICKLAND: I don't remember. Most probably was asked, yes.
MR RANSON: And your evidence was that you - you couldn't identify any differences between Maduwongga laws and customs and Wongatha laws and customs. Is that true?
MARJORIE STRICKLAND: Lot of that - lot of the customs - things there are similar but there are differences. The Aboriginal people have similar laws and customs. But there are differences between them.
MR RANSON: Okay. Well, your evidence before was that you didn't know any differences. Are you saying - - -
MARJORIE STRICKLAND: Well, I - - -
MR RANSON: - - - that you do now?
MARJORIE STRICKLAND: Well, I may - may have said that but there are some similar - basically - basically, they're the same.
MR RANSON: Okay.
MARJORIE STRICKLAND: Right? But there's different rituals and laws and customs that are in that - that - - -
MR RANSON: Well, can you identify for me one difference between Maduwongga laws and customs and Wongatha laws and customs?
MARJORIE STRICKLAND: Traditional laws and customs?
MR RANSON: Yes.
MARJORIE STRICKLAND: Our traditional laws and customs is the Western - you refer to the Western Desert, right - is that their law, my mother's law, they got skin groups, right? My father's country don't have skin groups. Lot of that thing, their laws and traditional laws and customs are based on the skin group. It's who you can marry and who you can't marry is based on skin.
MR RANSON: Okay.
MARJORIE STRICKLAND: So that's to do with all that purungu and tharurn and all that sort of skin group.
MR RANSON: Yes. Which I understand - - -
MARJORIE STRICKLAND: And that's base - and that's how they - they come out of that skin group.
MR RANSON: So is that a difference that you've only become aware of since - - -
MARJORIE STRICKLAND: No.
MR RANSON: - - - your previous evidence?
MARJORIE STRICKLAND: No.
580 When Mrs Strickland was taken to another specific passage of the Wongatha transcript, in which she said that the only difference she was aware of was Maduwongga language, she said that 'Well, I couldn't think of thing at the time … I couldn't think of some of them' (ts 157). But she did not volunteer any differences she had thought of since, nor did the cross examiner (in this proceeding) invite her to.
581 A passage of Wongatha transcript that followed the one just mentioned is also material to the question of differences between Wongatha and Maduwongga cultures. It runs from pages 7685 to 7692 of the Wongatha transcript and is too long to set out in full here. To summarise it:
(1) Mrs Strickland could not think of any specific differences between Maduwongga culture and Wongatha culture, other than separate languages.
(2) She appeared to accept that the word wangkayi (wongi) is fairly applied to both Maduwongga and Walyen. However she appeared to equate 'wangkayi' with 'Aboriginal person', so she may not have ascribed any significance to the proposition that the word could be applied to both Maduwongga and Walyen. When asked directly whether both Maduwongga and Walyen people were Wongatha people, Mrs Strickland said they were two different people.
(3) She did not conceive of the Maduwongga as part of a wider Wongatha group. They were at least two separate groups with different 'runs' who had a common area where they would meet (the Kirgella Rockhole) for ceremonies and trade. But later in the evidence it appeared that Mrs Strickland did not remember ever being told that Maduwongga people met at the Kirgella Rockhole, and broadened out the description of who met there to 'Aboriginal people' (WT 7689).
(4) It appears that Mrs Strickland knew this because of what she had been told by her father and mother, who both referred to 'Wongatha' meeting at the rock hole. She thought it had been said, by both her parents, in the Walyen language, that is, a language of the Western Desert. Her evidence was that neither her mother (a Walyen woman) nor her father (whom she says was Maduwongga) made any reference to Maduwongga.
(5) Mrs Strickland also, however, said that Maduwongga and Walyen people had different country noting that her mother (a Walyen woman) had a specific area where she roamed. Also, while accepting that other Aboriginal people could hunt and camp on Maduwongga territory, she still asserted a right to be advised and appeared to consider that campsites should be restricted to certain areas. She also in the end asserted a right to make decisions on country which she and Mrs Nudding did not share with others in the Wongatha claim group.
582 While Mrs Strickland's evidence in these passages taken as a whole was largely consistent with the position taken by the Maduwongga applicant in this proceeding, it was also lacking in detail, or a persuasive basis in things that she was told by her elders, that raised it above the level of bare assertion on her part. While in this proceeding she maintained that there were differences between Maduwongga laws and customs and Western Desert laws and customs, she was unable to point to any specific differences other than the absence of skin groups in the Maduwongga normative system. Setting that point aside, because it is addressed in detail in Section XI, that is consistent with the specific evidence given by Mrs Nudding and Mrs Strickland about laws and customs, or at least ways of doing things, that they observed when they accompanied their father on trips out to country: see e.g. [470], [485] above. That evidence shows a connection to country, but provides no basis for saying that the connection arises under distinctively Maduwongga laws and customs.
583 While still considering the matter at that general level, it is convenient to set out a passage from Morton I which gives context to the Aboriginal evidence just described (footnotes removed):
125. The Western Desert is not in my opinion the relevant 'society' in the context of this report. The NPC [Nyalpa Pirniku Claim] area sits at the boundary of the WDCB and, based on the historical implications of Map 5 and the comparative material from the WDCB eastern borderlands, I conclude that there was very likely extensive social and cultural traffic between the NPC area and the peoples of non-Wati-speaking areas to its south and south-west. I also consider it most likely that, regardless of any language differences across the southern and south-western borders of the WDCB, Wati- and non-Wati-speaking areas possessed sufficiently common laws and customs to create a mutually intelligible tenure system. It is noteworthy in this regard that Tindale used the term 'tjukur' when recording Kalamaia identities at Southern Cross in 1938 and thought the Kalamaia language 'bears close relation' to those nearby in the southern part of the WDCB.
126. It is even more noteworthy that Daisy Bates was of the opinion that the people about Southern Cross, whom she calls 'Karratjibin' after a local placename, had 'social organisation, customs, laws, initiation, etc.' largely coinciding 'with those of their eastern, north-eastern and south-eastern neighbours, with whom they have traded their local products'. She also indicated that, while the Southern Cross people possessed distinctively named generation moieties, and not four sections, the moieties were readily translatable into the appropriate section pairs 'of the Eastern Goldfields districts' - in terms of the spellings used earlier in this report, purungu ('Boorong') and karimarra ('Kaimera'), on the one hand, and tjarurru ('Tharrooro') and yiparka ('Eebarrga') on the other.
The Map 5 referred to shows the distribution of WDLs across the continent. According to Dr Morton, linguists refer to the WDL as a dialect continuum of 'Wati languages' (Morton II p 6 fn 5).
584 The overlap area thus sits in a transitional zone between the culture of the Western Desert and the cultures of its southern and south western neighbours, and sharp differentiation between the laws and customs of different groups is not to be expected. I will return below to the first sentence of the quote from Dr Morton about whether the Western Desert is the relevant 'society'.
Ritual and ceremonial practices
585 The observance of ritual and ceremonial practices in a particular area, or by a particular group, can indicate observance of, at least, a body of customs by that group. However, the witnesses called by the Maduwongga applicant had little to say about ritual and ceremonial practices in their evidence in chief. More detail came out in cross examination.
586 In cross examination, Joyce Nudding confirmed that watis had come into Edjudina and to Mt Burges for ceremonies. Mt Burges is near Coolgardie in the south-western corner of the Maduwongga claim area, outside the overlap area; Mrs Nudding said its name in her language was Mulyurri. When asked where the watis would come from, Mrs Nudding said (ts 251):
I heard come from all around came to grungarra. When you at grungarra, that's the song - song. You know, want to learn new songs, sing new songs. And Mululu, I'll just explain about Mululu. Mululu is when they got a special boy and he's coming through and he's collecting people. That's all I'm allowed to tell you.
587 It is notable that, on Hector O'Loughlin's unchallenged evidence, his father was 'picked as a special boy' when he went through the Law (WS para 11).
588 Mrs Nudding confirmed that 'grungarra' means 'song and dance', which I take to refer to a ceremony. She accepted that people participating in the ceremony 'would come from all over the place', including as far as Jigalong, 'a long way away'. But that was only when 'they got a special thing' and it only happened 'every number of years. Doesn't happen every often … Like Olympic Games every four years or something, you know. Just when they get together' (ts 252). She said that this 'used to happen' in the Maduwongga claim area and 'still goes on in - at outer places'. She accepted that it was common for people to walk up and down between Laverton and Karonie to go to ceremony and visit family.
589 Mrs Nudding also gave evidence about someone she called Uncle Rinja, whose name was Rinja Ryan. She had mentioned him in Wongatha. He was not a blood relation but she called him uncle because he was an uncle by way of skin group. Mrs Nudding did not dispute the cross examiner's suggestion that he came from the vicinity of Ooldea in South Australia, and confirmed her understanding was he came from 'out that way' to the east. She confirmed that he would come to 'this part of the world' (that is, the claim area) for ceremonies. She understood that he had also migrated in to work in the area '[w]hen the railways first started up', being before her time. She confirmed that visits for ceremonies from outside the area was something that happened for time to time 'every four or five years', and would be in a different place each time, again drawing the comparison to the Olympic Games. The ceremonies used to happen on a regular basis and were occasions for the participants to learn new songs and for boys to be put through the law, that is, initiated. She used the word 'mululu', which she explained as 'when they go and collecting people … from everywhere and then they come in and have a thing' (ts 275). As for whether Arthur Newland in turn went to Rinja Ryan's country for ceremonies, Mrs Nudding said he might have but she was not sure as it was before her time. She did say that people in Newman knew of her father.
590 At another point in cross examination, Mrs Nudding confirmed that when she was talking about Law business, she was talking about Law business that goes on at places such as Wiluna and Cundeelee. Wiluna is over 350 km to the north of the Maduwongga claim area and Cundeelee is to the south east of the claim area.
591 At another point in cross examination, Mrs Nudding appeared to suggest that the Wangkayi wati Darbin Murphy might have been at Edjudina 'looking after things in a law business way' (ts 325). However she then drew a distinction (ts 325):
[JOYCE] NUDDING: Custodian. You know what custodian is? The custodian is different to traditional owner. Everybody thinks they're all traditional owners but there's only certain people that are traditional owners and they're the people that their land, their ancestors have been on there since dot. Then you get to the custodians when the dot - watis, I would say. The traditional owners, some of them die out and things like that and it's handed over to custodians and custodians can look after the site. That's the way it is and I'm telling you the truth here. You want the truth, you get - that's it.
MR EDWARDS: Okay.
[JOYCE] NUDDING: There's a difference between custodians and traditional owners. Traditional owners own the land. That's their land. The custodian is when you're looking after sites.
KB, she said, was a traditional owner.
592 In evidence at Hobble Gap, Mrs Nudding said that people would walk through the gap in the range of hills. In cross examination, Mrs Nudding said that this referred to the 'ancient people' in KB's time and even before KB's time. She said that the people she had mentioned as coming through the gap were 'only visitors when they come to have ceremonies' (ts 55). She said (ts 55):
And that's ancient times I'm talking about. Now we coming and going and we mix, you know, we're up and down, but, you know, it doesn't - we're still - just the land belongs to the ancestors and that's - we're - what's the word - descendants from them.
593 She could not be sure whether there were Walyen people who came through. She said the ceremonies were taking place further to the west, that is, not at Hobble Gap itself.
594 Joyce Nudding also gave evidence in this proceeding about funeral, burial and bereavement customs as follows (WS 6.1 paras 56-57):
It is an Aboriginal custom not to talk about anyone who has died. It is a tradition that, when someone dies, all their clothes and possessions are burned, apart from keepsakes for family members. I was taught that, if I need to refer to someone who has died, I should use the word kurnana as a substitute for their name.
It is customary to bury the dead in their own country, facing east to west, so that the sun comes up at their feet and goes down at their head. When you go onto country, you feel uncomfortable that there might be people who have died there. If you get that feeling, you call out your name and introduce yourself, and you can have a good sleep at night.
595 In cross examination Mrs Nudding gave this burial practice as an example of a cultural difference between the Maduwongga and the Walyen, but also acknowledged that both her father and her mother taught her things about burial. She also gave evidence of a practice of reburial (ts 298):
But reburial is you got to come back 12 months' time and check things over. When they bury people, they put them down there and they usually just cover them up with a log and rock and things like that, and then they come back in 12 months' time and they take all the rock out and sticks and have a look to check if you haven't -if yidgahbrie never got him, yidgahbrie is the spirit man - if you kill the man, if he never killed a man or he just died of natural causes.
596 Mrs Nudding also referred to the practice of taking the bones of the deceased when they were '[s]pecial people, you know, might be head man or somebody up in the little community' and putting them in safe places. She also referred to a practice of collecting people from the community by dragging a stick behind (ts 299):
Yes, yes, drag the stick and that's another symbol, see, just dragging thing. When you bibyula when you cry and bibyula, that certain cry, when an Aboriginal person hear that cry in the camp when you go and pull up one side - they know that cry, everybody knows what they got to do. They know that that person is coming and they drag a stick behind him. That means come behind, come behind, collecting people, go to camp to camp and then they'll come back, and then go away and do that to every place, and they come and all get together in about three weeks or two weeks afterwards.
597 However when Mrs Nudding was asked whether these customs about burying people were the same for Maduwongga and for Walyen she said (ts 299):
That one about the laying - they got to be in that special way. The Maduwongga said - that's what my father say - he got to do - Aunty Eva say he got to do that. Yes, and over there most of the thing is the same.
MR EDWARDS: Same?
JOYCE NUDDING: Same sort of thing when it comes to burial, you know. Different little community thing - see one where - you know when you pass away in Aboriginal way, you get attention. Your attention - they do everything for you when you finish.
MR EDWARDS: Yes.
JOYCE NUDDING: They'll trim the trees, the trees are trimmed right around so no trees are falling on you, you know? If you bury one side of a tree, everything's got to be perfect.
MR EDWARDS: But that happens in Walyen country too, doesn't it, do you agree with that?
JOYCE NUDDING: Yes, it happens. It happens out here too.
598 Similarly, when she was asked to give other examples of differences in rules and cultural ways between the Maduwongga and the Walyen, she gave the example of being taught by her father how to carry water and clean rock holes, but immediately accepted that people also clean rock holes in Walyen country: 'Yes, they do it everywhere, they clean it over there too. We clean them around here too' (ts 300). She accepted that a Walyen person could clean out a rock hole that was at Edjudina.
The evidence of Mrs Strickland
599 Mrs Strickland gave detailed evidence in cross examination about burial customs, which was in some respects similar to the evidence Mrs Nudding gave, about someone gathering people dragging a stick behind them. However she appeared to be speaking of the burial of her mother as conducted or supervised by her Walyen uncle Ranji McIntyre and another uncle 'Uncle Willie'. She also said that there were different customs of people at Tjutjuntjarra and other places. The cross examiner elicited evidence of 'sorry camps' on the death of a person where Mrs Strickland appeared to accept that this was a custom that was widespread beyond the Maduwongga claim area and was not confined to her father's side of the family.
600 The cross examiner put to Mrs Strickland that when Teddy Forrest, the son of Norman Forrest and Violet Quinn died, Ivan Forrest of the NP claim group organised his funeral with Arthur Newland's blessing. It will be recalled from Section VII that it was at Teddy Forrest's grave that according to Mrs Strickland, Arthur Newland said, 'There goes the last of the Maduwongga'. So the point of the question appeared to be that Teddy Forrest's funeral was done in accordance with Wangkayi customs, or at least not in accordance with any Maduwongga customs. But Mrs Strickland flatly denied that Ivan Forrest organised the funeral, and asserted without hesitation that she did so.
601 Ivan Forrest's evidence was, however, that he organised Teddy Forrest's funeral. He did so with Arthur Newland's permission. Ivan 'carried out the sorry business. Arthur oversaw it' (Exh 20 para 43). They performed the ceremony in both 'the Aboriginal way' and 'the Christian way' (Exh 20 para 43). According to Ivan Forrest, 'If Arthur was to have arranged the funeral, he would have done it the same way. We're both Wangkayi. The real traditional way is to have the in-laws do it, but there were no in-laws in this case' (Exh 20 para 44). Mr Forrest was not cross examined on this.
602 Other than burial ceremonies, Mrs Strickland gave hearsay evidence about Ranji McIntyre telling her that KB and Arthur Newland 'used to go across to Kirgella Rockhole for ceremonies and trades' (WS para 60). She accepted that Darbin Murphy may have participated in ceremonies around the Edjudina area or at Mt Burges near Coolgardie on special occasions, although that was in response to a question in which the cross examiner asked her to accept that Mr Murphy was in fact a wati. Mrs Strickland also said in the context of what is and isn't allowed on someone else's country that 'if you wanted someone else's sandalwood, you would need to go to a ceremony to exchange something for it' (WS para 69).
603 In cross examination, Mrs Strickland pointed to a similar definition of 'custodian' as that which Mrs Nudding emphasised, saying that traditional owners 'will say, yes, it's alright … you look after that barna over there' (ts 106). She accepted that watis from Tjutjuntjarra would look after the land and sites in the Maduwongga claim area but said they would not own it. Also, she accepted that cleaning out rock holes and similar care for land would be something that her mother's side of the family would 'most probably' do as well as Maduwongga.
Other lay Aboriginal evidence about Maduwongga customs
604 In his evidence in Wongatha, Albert Newland gave evidence that he remembered (WT 3848):
when I was a kid, my father doing a dance of the morning star of the corroboree at Southern Cross, and I looked at it through a hole in the rug that was over my head.
But this evidence did not contain any detail permitting that dance to be identified as distinctive to Maduwongga beliefs, ritual or practices (or those of any other group). The same can be said of other evidence he gave, such as that concerning funerals.
605 Albert Newland also recalled that (WT 3849):
When I was a kid at Eucalyptus, there used to be a big camp at Christmas, with the Tucker's, Forrests', Robinsons', Roy Sullivan and others. We all used to sing and dance and have a good party in those day[s].
606 Dimple Sullivan, who identified as Wangkayi, gave evidence in Wongatha of a large ceremony she remembered from just before she went to the Mt Margaret mission in 1930. The ceremony took place outside what is now the Maduwongga claim area, but Mrs Sullivan's evidence was that the people participating in the ceremony 'came together from Wiluna, Menzies, Darlot, Mulga Queen, Kookynie, Coolgardie, Linden, Edjudina, Burtville and Kalgoorlie' (TB 1.4 pp 969-970).
607 According to Cheryl Cotterill, her mother-in-law Dora Cotterill, who was a child when KB was still alive, saw ceremonies described as follows (Exh 19 paras 52-53):
They used to have corrobborees where all the families got together and danced and sang. Dora was a child at the time, and she said there were certain things that children had to cover their eyes for, but she sometimes snuck a look. Wangkayi people came from all around.
[KB] and her family would mix with families from Laverton way. They would get rations from Linden and also go to Karonie. All the wangkayi families from all other areas would come together and dance maybe once a year. My mother and aunties would go to these dances.
As with the path from Laverton and Burtville to Karonie described above with respect to evidence about Doreen O'Loughlin at [509] above, a path from Linden to Karonie passes through the Lake Rebecca Area.
608 The NP claim group member and Wangkayi wati Ivan Forrest remembered as a child ceremonies of people passing through Kookynie (north of the overlap area) and remembers watis coming from Cundeelee, Warburton, the Central Desert and other areas for ceremonies. In his evidence in Wongatha incorporated in his evidence in this case, Mr Forrest had used the word 'corroboree', rather than ceremony, and said that many corroborees were not sacred but engaged in for the purpose of entertainment.
609 Elvis Stokes gave evidence that KB 'was a Wangkayi person too and that she was part of the Linden ceremonies. The Linden ceremonies were women's business so I can't talk about that. I believe it was big business at the time' (WS para 27). According to Elvis's father, Arthur Stokes, his father Ginger Stokes (Elvis's grandfather) met KB around Linden, and she was there with other Wangkayi people' (Exh 18 para 25).
610 Hector O'Loughlin gave evidence that he went to two corroborees with his father near Mt Margaret, and the people who attended were from Laverton, Menzies, and Edjudina. People from his mother's family would travel to the overlap area for corroboree but were not from that area.
Ethnographic and expert evidence about customs observed in the Maduwongga claim area
611 The unpublished autobiography of David McDonald was in evidence, as mentioned earlier in these reasons. He was born in 1881 and in 1895 he moved with his parents to Western Australia. According to Morton II, later in his life McDonald married Dora Cotterill's mother Lilly McDonald. McDonald referred to a tribe called the 'Wongi of Pindinnie and Edjudina' (Exh 47 p 341). There was agreement between Dr Mathieu and counsel for the State that Pindinnie was located near Murrin Murrin, which is about 110 km north and slightly west of Edjudina, and north of the overlap area but within the NP claim area. It appears to be the same as place names that are called 'Pindinnis' on the map at Appendix A. As has already been mentioned, McDonald said that the Wongi were 'split into four tribes, one at Pindinnie with a type of auxiliary out east in spinifex country, another at Edjadoo [Edjudina], also with an auxiliary in the spinifex' (Exh 47 p 344). He describes them as holding initiation ceremonies and big corroborees.
612 Dr Mathieu gives some quite detailed descriptions of funeral practices among the Maduwongga but like the lay Aboriginal witnesses, gives no reason to think that they are culturally distinctive. However in the Expert Conference Report, both Dr Mathieu and Dr Morton agree that there is evidence of different burial customs but similar mourning practices. Neither of the experts comment on the nature of the differences or their significance (if any) from an anthropological perspective.
Observations on the evidence about ritual and ceremonial practices
613 All of this evidence is consistent, including the evidence of Mrs Nudding and Mrs Strickland. People came from all around, and from distant places, to perform ceremonies together in the overlap area and the Maduwongga claim area. Many of the people (if not all) who can be identified as participating in those ceremonies were Western Desert people. And (with the exception of burial customs, the content and significance of which are unexplained) none of the evidence supports any difference between ceremonies or ritual practices of a distinctively Maduwongga character and ceremonies and practices of the Western Desert.
614 Dr Mathieu's position on this subject is that the Maduwongga had similar initiation practices and ceremonies as their Western Desert neighbours. But she goes on to say that circumcision rites are so widespread that they are not sufficient to class the Maduwongga as among the Western Desert people. I accept this evidence.
615 According to Joyce Nudding, she knew that her father, Arthur Newland, had some involvement with Law business, 'secret things that only initiated men are allowed to know about' (WS para 58). The only source of this she gave was an old man named Larry Murphy, who she understood was from outside Maduwongga country. He told her that he knew Arthur Newland from Law business. But she did not know how much her father was involved in Law business, as he did not talk about those things with her. In cross examination, she said that 'one time he didn't tell me about how they done the business but he told me that he was on one of those' (ts 250). She also confirmed her understanding that Arthur Newland was a wati but did not give a source for that.
616 Mrs Nudding noted that Arthur Newland was not required to ask permission to travel around Walyen country but, according to her, that was because 'he was looked after by Mum's cousin, Ranji McIntyre (Uncle Ranji), who was a very powerful man among the Waljen people' (WS 6.1 para 60). In cross examination, however, Mrs Nudding confirmed that she understood that her father was a wati. Mrs Strickland also gave evidence that she understood Arthur Newland 'had some involvement in Law business because he always went away during Law business time' (WS para 71). In cross examination, she appeared to accept that men's Law business no longer happened in the Maduwongga claim area.
617 Mrs Strickland was cross examined about statements made by Dr Mathieu in one of her reports, described by the cross examiner as being to the effect that Arthur Newland was involved in Wati Law and it was connected to Tjutjuntjarra country in the Western Desert. Mrs Strickland agreed he went to Tjutjuntjarra but did not know why he went there, as it was men's business which he did not discuss with his daughters. In re-examination, however, she agreed that Arthur Newland had Law related interests in other places beyond Tjutjuntjarra, saying that he went to Newman and up to Jigalong. In Section VII evidence from Arron Newland to a similar effect is described.
618 When asked whether it was true that men's business does not happen on the Maduwongga claim area anymore, Mrs Strickland's answer was not coherent. She appeared to suggest that the Tjutjuntjarra people were acting as custodians for the area around Coolgardie. She understood that 'custodians' took care of various sites and performed ceremonies there 'and then they leave'. She said 'It's just ceremonial stuff that people come and do their business on', which she appeared to suggest would be at the invitation of the traditional owners of the country. 'They don't own it, they just look after it' (ts 106-107).
619 I have recounted above, and accepted, the hearsay evidence of Arron Newland that Arthur Newland was called Windtharra and was a senior Law man. I have also noted that the evidence says nothing about whether Arthur Newland was identified as a Maduwongga Law man but, rather, suggests that Arthur Newland had a place in the Law business of people far away from the Maduwongga claim area. If this were so, it would not speak conclusively against the existence of a distinct body of Maduwongga Law, as it is clear from the evidence that customs observed in one area could be practised farther afield. But it does, at least, provide no support for the existence of such a distinct body.
620 When senior counsel for the Maduwongga asked Stevie Sinclair who were the watis for the area near Hobble Gap now, Mr Sinclair said 'there be no one now. Some of them all pass away. Especially all the traditional owners, the tribal lawmen from that area' (ts 331). Later, he was asked (ts 334):
MR McINTYRE: Are there any men related to Mrs Strickland and Mrs Nudding who have been through the law that you know?
DANIEL SINCLAIR: What was it?
MR McINTYRE: Are there any - do they have any of their men have been through the law?
DANIEL SINCLAIR: Yes, families, yes, connection with, mostly, like, from the desert here. From Edjudina, that area.
MR McINTYRE: People from the desert - - -
DANIEL SINCLAIR: Yes.
MR McINTYRE: But I'm asking about Marjorie and Joyce's family. Do you know any - whether any of their boys have been through the law?
DANIEL SINCLAIR: No.
621 This sparse evidence provides no support for the Maduwongga applicant's case. Arthur Newland was a man initiated in the Law, but there is no indication in the evidence that it was a Maduwongga law. The evidence of Mrs Nudding and Mrs Strickland that Arthur Newland was Maduwongga is by way of general assertion which has no link to his status as a Law man. Mrs Nudding and Mrs Strickland do not claim to have known anything about her father's Law business, because he did not speak to them about it. Nor do they claim that there have been any men initiated into Maduwongga Law since the death of their father.
622 I have described and discounted the hearsay evidence of Teresa Stokes gained from Mr Landy that he had met Arthur Newland on Wati Law business, but even his reported assertion that Mr Newland was 'Maduwongga' is not linked to any evidence specifically about the Wati Law in connection with which Mr Newland was said to have met Mr Landy. Apart from that, there is the hearsay evidence of Arron Newland, which places Arthur Newland in the Law business of 'Martu' people and people as far away as Newman.
623 Then there is the evidence of Stevie Sinclair, and the specific and unchallenged evidence of Hector O'Loughlin, about who had knowledge of the Lake Rebecca Area and looked after significant places in that area, including men from the generation before Mr O'Loughlin who are thus likely to have been performing those responsibilities during KB's time.
624 The Maduwongga applicant contends, however, that there is a distinction between ritual responsibilities and rights in relation to land and waters. There is some support for that in the Aboriginal lay evidence; for example Ivan Forrest's evidence was that Stevie Sinclair's father, Don Sinclair, was the only wati left who 'knew a bit about' the overlap area but he did not come from that area and that even though his son (Stevie) was a wati 'he can't speak over the top of me in my country. It's not his country' (WS para 30). I have also described above evidence that Mrs Nudding and Mrs Strickland gave that was relevant to the distinction. I will return to the significance of the distinction below when I come to consider whether the NP respondent has discharged its onus of establishing in Section XIII that KB acknowledged and observed the laws and customs of the Western Desert.
625 A definition of tjukurrpa appears in the opening submissions of the NP respondent: 'Literally, Thukurrpa means story or word (and is sometimes translated as "Law")'. This definition did not appear to be contentious. It will be recalled that the Maduwongga applicant acknowledges the place of tjukurrpa or Dreaming stories in the belief system of the Maduwongga people. This is part of the Maduwongga applicant's statement of facts and contentions. That is so even as, on the cases of both the NP respondent and the State, tjukurrpa is the foundation of laws and customs of the Western Desert that give rise to rights and interests in relation to land and waters. It will also be recalled that the Maduwongga applicant replies to this by contending that tjukurrpa can come with responsibilities in relation to places of significance but that is not the same as rights in relation to country. The issue is therefore not about the existence or content of tjukurrpa in connection with the overlap area and the Aboriginal people who occupied it during KB's time. It is about the significance of tjukurrpa.
626 Joyce Nudding gave evidence in cross examination that tjukurrpa stories were an important part of the laws and customs of her people, and that it was important for people to know those stories if they were to take responsibility for looking after country. She gave evidence in Wongatha about a particular tjukurrpa. She said that her father Arthur Newland told her a story about Lake Raeside and Lake Rebecca, as being a site of 'a big Tjukurrpa'. It was a story about 'the big Warnampi', a water snake who lives there and 'he swims there, every time when the big rain comes out … he swims there, he go down, swimming underground, right out to the Nullarbor' (WT 7849-7850). She mentioned the same story as a tjukurrpa, in the sense of 'Dreamtime story', in her evidence in chief in this proceeding, but with less detail (see [464] above). In cross examination she added the detail, however (ts 246):
Now every 20 years when the big flood comes, that Warnampi tjukurrpa, Warnampi snake there swimming, diving and going and swimming. That is the - that is what people believe in that.
627 Mrs Nudding said she heard this tjukurrpa not only from her aunt, Eva Quinn, but also from 'people a long way away', who she indicated were north east of Kalgoorlie (where the court was sitting at the time). When asked about her evidence in Wongatha that Lake Rebecca was one end of the tjukurrpa, and that it went all the way out to the Nullarbor at the other end, Mrs Nudding said (ts 247):
That's a possibility too. But we supposed to be looking after that area. Maduwongga look after that little area there. Other people looking after other areas. Other people looking after Top End areas.
She confirmed that it was important under Maduwongga laws and customs to know the tjukurrpa stories and to teach them to the younger people. But she said 'You tell it to special people who you know would keep it here' (indicating her heart) (ts 248). It was important for people to know about those stories if they were going to take responsibility for looking after country and if they were to be able to speak for country.
628 Mrs Nudding accepted that the people from her mother's country, that is the Walyen people, also knew about the tjukurrpa. She referred to her uncle Ranji McIntyre as having taken her and others around country before he passed away to show them things.
629 Mrs Strickland's evidence in chief in this proceeding did not speak in terms of tjukurrpa or say anything about its significance to the Maduwongga. As mentioned under the heading 'Maduwongga country' above, she did refer to the story of the warnampi water snake as a 'dreaming story' (WS para 44). She was cross examined about tjukurrpa and she described the term as referring to creation stories about how things came to be. When asked what other groups had those stories, her answer appeared to indicate that the tjukurrpa of a group would run to a certain place and at that point it would be picked up by the tjukurrpa of another group (ts 148):
… different groups have different Stories and they go to a certain place and then it - from there it just takes off and then - like, there and then it goes to there … and then next they'll go on to there. And so on it goes, like that. So you only have information about the area and the Stories you're told there.
630 Of the tjukurrpa of Western Desert people, and the extent to which they were shared, Mrs Strickland said 'they have their own Stories'. When asked specifically about the warnampi story, Mrs Strickland's evidence was as follows (ts 149):
MR RANSON: And my understanding of that Story is that that Snake is in Lake Raeside, where we were yesterday?
MARJORIE STRICKLAND: Mm.
MR RANSON: That's part of the Story.
MARJORIE STRICKLAND: Yes. Part of it, yes.
MR RANSON: And that Story and that Snake then travel across a lot of country, all the way up to the Nullarbor Plain in South Australia. Is that right?
MARJORIE STRICKLAND: I - I don't know. It would only go to there, but, you know, I only know what's on that - on the land on our particular area.
MR RANSON: So you - - -
MARJORIE STRICKLAND: Someone else, the next group, would have the - the Story. It continues on.
MR RANSON: Okay. So you don't - - -
MARJORIE STRICKLAND: They - - -
MR RANSON: - - - even know where that Story goes once it leaves your land?
MARJORIE STRICKLAND: No. Some things because I'm - not only that, I'm a - it's to do with gender business, as well. It's not to - it's not common knowledge that everyone knows these Stories.
631 The Pilki Law man and elder Stevie Sinclair's evidence mentioned a number of stories both outside and inside the Maduwongga claim area. His evidence did not use the term tjukurrpa, but he did appear to equate the stories he mentioned with what he called 'Wati Law Dreaming stories'. He said Pilki country, his country, comes under Wati Law. He said that the 'Wati Law Dreaming stories are shared by the Maduwongga native title claimants and the Nyalpa Pirniku native title claimants' (WS para 3). He said, 'In order to have approval to talk about a special Wati Law site, you need to be given knowledge of the stories about it by the elders' (WS para 16) and that he knows stories about some of the places in the Maduwonnga claim area. The stories that Mr Sinclair mentioned in his evidence were:
(a) a marlu (red kangaroo) story that comes from the north east (Yumana country) and finishes in Pilki country;
(b) an 'emu that goes through Coonana', a place where Mr Sinclair grew up which is about 130 km east and south of Kalgoorlie and to the south east of the Maduwongga claim area;
(c) a Wati Law story about two men and seven sisters, which is both a men's story and a women's story, in which the men chase the women who are scared and run away - this story is at Coolgardie and runs through Mt Burges (just north of Coolgardie) and Bulong (east of Kalgoorlie, and just west of Lake Yindarlgooda), and goes to Coonana;
(d) a story at Lake Raeside about a lady with six dogs, which Mr Sinclair learned when he went there with two elders from Spinifex country - Mr Sinclair said the area was sacred and they were not allowed to go near it;
(e) the warnampi snake story at Lake Raeside that goes to Cundelee; and
(f) a story at Lake Rebecca about a big black dingo.
632 The last four of these examples from the rich knowledge of Dreaming stories held by Mr Sinclair, a Pilki elder from spinifex country, concern paths and places that are situated in, and run, both inside and outside (or on the border of) the Maduwongga claim area. The last three also fall within the NP claim area, and so the overlap area. Mr Sinclair also said in oral evidence that the country to the west of Hobble Gap was 'in the Two Man Story' (ts 329, 332). He also said that there was a song that goes through Edjudina but he was reluctant to give details because 'there's ladies here' (ts 340). Speaking elsewhere in his evidence of the country around Hobble Gap, Mr Sinclair said 'I'm a senior elder, I work with - you know, with the old fella now. I know the - where the stories all come and end. Mostly all go back to the Spinifex country' (ts 332).
633 Hector O'Loughlin gave evidence at Hobble Gap of a story about the creation of the gap that he learned from the Wangkayi elders and watis, Darbin Murphy and Wobalie Blizzard. He said (ts 59):
Well, they told me, like this old Darbin and Wobalie and them, they said there was two watis came this way and one guy threw a boomerang that side and another one this side and opened the gap up and they went through to Reedy Hill over there.
634 In his witness statement Mr O'Loughlin said that Darbin Murphy was 'the one who looked after all the tjurkurr places around Edjudina and Pinjin' and that the 'old Lawmen were not looking after Edjudina for anyone else' (Exh 16 paras 36-37).
635 Similarly, Elvis Stokes gave evidence at Hobble Gap that Darbin Murphy, Arthur Stokes (Elvis's father and Darbin's brother) and other elders from Mt Margaret had told him a story about Hobble Gap (ts 61). In his witness statement Elvis Stokes says he 'was told that two watis came, one good and one bad, and they threw a boomerang. It went through the hill and created the gap. I told this story in Wongatha. I was told by the old people' (WS para 16). Elvis Stokes named the elders who had told him this story, and among them was Ranji McIntyre, the cousin of Mrs Nudding's and Mrs Strickland's mother, Lallie Akbar, although they did not include Darbin Murphy or Arthur Stokes, so it is not clear that is the story Elvis was referring to at Hobble Gap.
636 Ivan Forrest also knows the story of 'Edjudina Gap' which he described as 'a tjukurrpa Dreaming site. The gap in the hill was created by a boomerang, chopped off the top of the hill. Wati kutjarra (two men)' (Exh 20 para 24). He also has a version of the water snake tjukurrpa Dreaming from Lake Raeside, which he tells as follows: 'The lake was created by a wardabee (big snake) from Lake Bundaroo to Lake Miranda' (Exh 20 para 23). Stevie Sinclair also knew this story. Ivan Forrest also gave evidence about another story, the Tjilkamarta Dreaming or Porcupine Dreaming, mentioned further below. More broadly, Ivan Forrest's evidence was that he knows sites in the overlap area and the tjukurrpa for them, and he gave an example of a site in the Maduwongga claim area for which he had responsibility to care 'because I am a wati' (Exh 20 para 20).
637 When asked what name is given to the country around Hobble Gap in the Edjudina Range, Mr Sinclair said 'All I know is that country's in the Two Man Story. That's that - got two hills, where that boomerang. Yes, that - we call it, like, Wati Kutchera' (ts 329). He confirmed he was referring to the two wati story that Hector O'Loughlin told the Court about when it was sitting at Hobble Gap, which is described above at [633]. Mr Sinclair said he had heard that story himself 'mostly from [t]he desert where the old people - especially the old custodians. … by listening to these stories and got song lines. I think we still got that song line between that area. … Especially that Spinifex mob, yes' (ts 330).
638 As for expert evidence on the subject, the significance of the Dreaming and its relationship to land tenure is addressed below in Section XIV. In this section it is enough to note that Dr Morton lists both the wati kutharra Dreaming and the warnampi Dreaming as tjukurr which go to defining the NP claim area and its immediate surrounds. He describes the observance which NP claim group members, namely members of the Brownley family, showed in his presence of the significance and power of a wati kutharra site and the rules surrounding access to that site.
639 Finally, it will be recalled that a note on Tindale's genealogy sheet says that no tjukurr was known to KB. However, neither the Maduwongga applicant nor any other party sought to make anything of that. As has been said, the Maduwongga SOFAC makes it clear that tjukurrpa has a place in Maduwongga laws and customs.
640 The above evidence provides no support for the case of the Maduwongga applicant, and does provide support for the case of the respondents that the laws and customs acknowledged and observed in the overlap area were the laws and customs of the Western Desert. The evidence given by Mrs Nudding and Mrs Strickland provides no basis for finding that there were tjukurrpa which were distinctive to the Maduwongga people or which provide the foundation for any Maduwongga body of laws and customs. To the contrary, it is clear that tjukurrpa of the Western Desert people pertained to country in the overlap area, and the involvement of elders such as Wobalie Blizzard and Stumpy Edwards in keeping those stories suggests that this was the position during KB's time. I do not conclude from the mere existence of those tjukurrpa that it was the laws and customs of the Western Desert that were observed in the overlap area during that time; as Mrs Strickland's evidence indicated, it is possible that tjukurrpa were shared between different groups and were kept by different groups in relation to different areas of country. But the substantial overlap, perhaps even complete identity, between the tjukurrpa known to the Maduwongga and those known to the people of the Western Desert does provide strong support for the Western Desert case.
641 I have summarised above in Section VIII the evidence of the lay Aboriginal witnesses about the areas where Maduwongga people and other people camped and hunted and used natural resources; in broad terms their country or their runs. This section, inevitably overlapping with that earlier one, describes the evidence that is more specifically about sites of significance, in the sense that laws or customs or spiritual beliefs are attached to them, especially the kinds of customs with normative aspects as to who may have access to or speak for particular places.
642 Albert Newland gave evidence in Wongatha that Arthur Newland would often point out water places, soaks and rock holes, to him when they were working together, so they could go to those places if they were thirsty. Arthur told Albert the Aboriginal names of those places, but Albert had forgotten most of them by the time he gave evidence in Wongatha.
643 Albert Newland also gave evidence that he was not told traditional stories, although 'my relatives told us all the time not to go to special places, pika-ngurlu'. According to Albert Newland, that was a term for a special place where people should not go. He did not identify it as a Maduwongga term. He said he knew 'we wasn't allowed to go into the old people's dancing area, or their sacred sites or whatever' unless he had gone through a ceremony of initiation (WT 3870).
644 I have mentioned Joyce Nudding's evidence in Wongatha that her father Arthur Newland took her to places including the Hunt Pinnacles. She said they usually went past the Hunt Pinnacles but 'You can't go to Hunt Pinnacles. Hunt Pinnacles is special spot' (WT 7848). Marjorie Strickland appeared to be referring to the same place in her evidence in this proceeding when she said that there was a lake not far from an old campsite near the Hunt Pinnacles which creates an island when it fills. She said the island was a traditional men's Law site 'associated with a lot of superstition' (WS para 57). In Wongatha she had said that the Hunt Pinnacles area was 'very significant' (WT 7489). She also gave evidence in this proceeding that (WS para 58):
Between Mulgabbie and the Hunt Pinnacles is a 'sorry camp' (a place of retreat for mourning relatives), where Dad went when Aunty Eva passed away in 1968. Mum went with him. They stayed there for about two months, during which my husband and I went out to visit them with Joyce and her husband, Albert, and took fresh water and a few other supplies.
645 Mrs Nudding also gave evidence in this proceeding that there were reasons why certain sites such as Mt Burges were important, but she gave that as an example of things that she had been taught not to talk about, even though she might have some knowledge about them, and so her witness statement does not elaborate.
646 Joyce Nudding also gave evidence that she did not go to certain places at all because she was told not to go there when she was young. The only specific example she gave was 'the red ochre places around Pinjin' (WS 6.1 para 55). However also in evidence, through her, was a painting by her niece, Jacqui Spurling (one of Mrs Strickland's daughters), which was a depiction of the mud map of Arthur Newland's country that Mrs Nudding had prepared that is mentioned above at [465]. It includes a depiction of a place within that country which in Mrs Nudding's oral evidence in this proceeding she said was a 'special place' (ts 235). She called it 'grungarra place'. She said (ts 236):
The special place. That's the name of the place. Well, we never been there. We never been going there. My father always take us around this side and that side and he show - point us, there's a place over there, an island. It's on an island in the lake.
647 She said that another special place was also shown on the painting. The painting of places was overlaid on a depiction of a porcupine (or echidna), which she called 'the tjilkamarta' (ts 236). She did not give any specific evidence as to the connection of her, her family or any other group to the tjilkamarta, for example as a totem animal or through a tjukurrpa. Ivan Forrest, on the other hand, did give evidence in Wongatha, incorporated into his witness statement in this proceeding, of a Tjilkamarta Dreaming which he appeared to associate with Wongatha (Wangkayi) people.
648 Mrs Strickland's evidence also refers to being told about caves 'that have to do with traditional men's business' (WS paras 52, 57).
649 The Pilki elder Stevie Sinclair gave evidence in cross examination that he helped look after sites around Edjudina and the Goldfields. The Maduwongga applicant submitted that this evidence supported the proposition that ceremonial and ritual activity in the Edjudina area was currently under the control of watis from Tjutjuntjarra (Pilki country to the east of the Maduwongga claim area) and not any watis from the Mt Margaret-Laverton region. But I did not understand Mr Sinclair's oral evidence that way; he was only talking about what he did, and did not say that he or watis from his community were exclusively responsible for care of those sites.
650 Several of the Aboriginal witnesses called by the NP respondent knew of places of significance within the overlap area. Hector O'Loughlin's evidence was that Darbin Murphy had told him about a place of significance comprised of a sharp pointed hill near Wallbrook Paddock. Wallbrook Hill is inside the overlap area, just south west of Edjudina. Hector O'Loughlin also gave evidence of Wangkayi Law men with knowledge of sites around Edjudina. He said (Exh 16 paras 35-37):
I know Edjudina. The old Lawmen, Darbin Murphy, Stumpy Edwards and Wobalie Blizzard, told me places you can and can't go. I couldn't show them to you. You need Lawmen to go to those places. I never went through the law so they couldn't tell me all about it. But there are places where the story went through, a songline, a Red Hill and women's sites. Darbin, Stumpy and Wobalie are all Wangkayi people. I knew them from around Laverton and Mt Margaret. They spoke the same language as Wangkayi people.
Darbin Murphy is the one who looked after all the tjurkurr places around Edjudina and Pinjin.
The old Lawmen were not looking after Edjudina for anyone else. Once they go through the law they know those things. They looked after the land.
651 Elvis Stokes said he knew of some of the sites around Edjudina, having pointed out two men's sites that were close to there and a water rock hole which he said 'we call Darbin's Rockhole' (ts 374). Over 40 years ago the Wangkayi wati Ivan Forrest worked as a dogger (trapper of wild dogs and dingoes) in the overlap area including at Pinjin, Edjudina and Yerilla, (just north of the boundary of the overlap area). He was not a wati at that time but watis including Don Sinclair (Stevie Sinclair's father) and Jessop Sullivan showed him places of significance. Not being a wati 'made the job difficult because the dogs seemed to always know to run to the areas where I could not go, places I was told not to go' (Exh 20 para 16).
652 Ivan Forrest's evidence was that there were cave paintings near the northern boundary of the Maduwongga claim area he had responsibility to care for. He said it was Albert Newland who showed those to him.
653 I have described above Ivan Forrest's evidence in his witness statement that he, the Stokes family and Dora Cotterill can speak for an area of country including around Lake Raeside and Hobble Gap. Mr Forrest then went on to acknowledge a difference between being able to speak for ngurra or country and speaking about sites of significance. In his witness statement he said (Exh 20 para 28-30):
There is a difference between speaking for your ngurra and speaking about sites. Ngurra is home, where I come from, my run, where I walked. That gives me every right in the world to speak for that area. But only a wati can speak for sites. My brothers aren't wati but that is still their country. Their rights come about because they are from that area. My brother Dennis came there as a baby. He spent a lot of time in that area. It's a Wangkayi thing. We know our ancestors are from there. But in wati terms, he can only speak to an extent. When it starts talking about sacred sites, he has to stop. He knows where they are but he can't speak about them.
Aubrey Lynch and I are the only watis who can speak for the sites in that area. There are other watis, like from Central Desert area. They can speak for the sites, but the country itself belongs to the people that come from there.
When I went through the law at Morapoi there was no watis left in that country of the Maduwongga overlap area. Don Sinclair (a wati) was the only one who knew a bit about it, but he doesn't come from that area. He comes from further over, around my mother's country. Like Cundalee, across to South Australia. I think Don Sinclair died a few years ago. His son, Daniel Sinclair, is a wati but he can't speak over the top of me in my country. It's not his country.
654 Consistent with that is the evidence of Stevie Sinclair set out under the heading 'Maduwongga country' in Section VIII above, to the effect that Mrs Strickland and Mrs Nudding had ownership rights in relation to the country around Edjudina which he did not have, while at the same time he had ritual and ceremonial responsibilities in relation to sites in that area. On the other hand, Hector O'Loughlin's evidence was (Exh 16 para 42):
I think it would be all the Aboriginal people who have been through the law can speak for that area. That's what I understand. It's not one family or one person. Most of the Wangkayi families have strong connection in that area.
655 All this evidence shows that someone can have a right to speak for an area of their own country while watis whose ngurra or country is elsewhere can nevertheless speak for the sacred sites in that area. And no one who is not a wati can speak for those sites. It is necessary to be cautious, however, before superimposing White European distinctions between ceremonial responsibilities and 'ownership' on this evidence. Morton I contains a summary of things concerning the relationship between watis and significant sites which Dr Morton learned during field work in the NP claim area. These include that '[p]eople generally agree that senior wati have a 'ticket to pass' anywhere, but even they will not do so without letting local people know that they are coming' and '[a]n important part of the wati role is to 'help' local people with their ancestral stories and sites, not to dominate them and leave them without local authority' (para 171). One Aboriginal informant, Bruce Smith, told Dr Morton that (para 172):
wati are essentially 'helpers', 'mentors' or 'trustees' when working out of their own homelands. He says that 'dreamings do not have boundaries' - they are what connects up the Law as a regional system and it is the Wati Tjilpi who have obligations to hold the Law 'in trust' and pass it to a suitably qualified younger generation. It is evident, however, that there are boundaries between local districts and that people with specifically local ancestry have primary rights of ownership.
656 What is notable for present purposes is that Mr Forrest's unchallenged evidence states the position under the normative system of the people of the Western Desert. Mrs Nudding's and Mrs Strickland's evidence about places of significance does not contradict that evidence in any way. Clearly Arthur Newland knew about places of significance within the overlap area, and no doubt as an initiated Law man he could speak for those places. But nothing in the evidence indicates that he did so under laws and customs distinctive to a Maduwongga group. To the extent that the evidence gives any indication about that, the relevance of Western Desert laws in the area, and the evidence Arthur Newland was concerned with sites in the Western Desert far beyond the Maduwongga claim area, both point to the contrary.
657 The existence of shared spiritual beliefs identified with a certain group of people may be another marker of a distinctive society. Apart from the subject of tjukurrpa, there was little direct evidence about spiritual beliefs (acknowledging that such distinctions can often be imposed by White European modes of thought, not Aboriginal ones).
658 Marjorie Strickland's witness statement said the following evidence about spiritual beliefs connected to country (WS 6.2 paras 68-69):
When an Aboriginal person goes into another's country, or brings strangers into their own country, this can upset the spirits of the deceased ancestors of that country's people. There might be a howling wind, or you might find it hard to settle or sleep. So, you have to identify yourself to the spirits. You can throw sand to identify yourself. Then the spirits will be content.
The need to identify yourself has to do with the ground where you belong (parna) - the home you will be taken back to when you die, which is the home of your ancestors. If you do something that is not permitted on country where you don't belong, there are spiritual consequences. You are allowed to take food and light a fire on someone else's country, but you would not be permitted to do something like pull sandalwood - if you wanted someone else's sandalwood, you would need to go to a ceremony to exchange something for it.
659 Joyce Nudding's evidence contained the following recollection (WS 6.1 para 26):
I remember Aunty Lena telling me about when she became lost after being out in the hot sun too long near Muline. She roamed about the bush overnight and could not find her way back to the camp until the next morning. I asked her how she found the camp and she told me that she saw a lot of the old Maduwongga people that had passed on and they showed her the way home.
660 Mrs Strickland's evidence also referred to this story, but without any detail. Mrs Nudding gave more detail in her evidence about this story in Wongatha. There, she said (WT 7860):
But she told me when we were out visiting her once that she got lost. She was lost in the bush at Muline. She'd wandered off to go and get some water or something, and it was hot weather. And she didn't return. … And she didn't know where she was. I think the sun might have got to her a bit. But she was wandering, wandering in - in the bush for quite some time, didn't know which way to come home. … And she said, 'I didn't know what to do.' She said, 'I just sat down and I said - I had a image, seen a image of all the old people coming to me,' and she said, 'The whole Maduwongga people,' she said. She said, 'I recognised them, and they - they just - never spoke to me, but' she said, 'they - they came and they pointed: that way.' And she said, 'I'll go up and follow them, and they kept pointing that way,' and like they were leading her on and - and she went that way, with them, and she ended up in the camp. But old Alf was about to go and get the Menzies police.
MR McINTYRE: Alright. Did she say who those old Maduwongga people were?
JOYCE NUDDING: She didn't mention them by name. All she said that there was Maduwonga people and she knew them, but she didn't say the names.
661 Mrs Nudding said something similar in cross examination in this matter, stating that Lena Judd had spent the night out in the bush when she got lost and that she had been woken up by spirits. She gave further evidence as follows (ts 284):
I was telling her, 'who the old people', and she said 'oh, all the old Maduwongga people'. The ones that she knew that were old people probably. They woke her up, and lead her back.
MR EDWARDS: Sorry, did she tell you the names of any of those people?
JOYCE NUDDING: No, no. It was like she was delusional, you know. Didn't really see people, but she saw figures of people. That sort of thing. You know, when the sun thing felt like - that's what she told me anyway.
MR EDWARDS: So is this right? So you don't know any old Maduwongga people except your aunties and your granny and you[r] dad, is that right?
JOYCE NUDDING: Well, that's the ones I know. That's the ones I knew, I seen them, I've been with them and I grew up with them. But there must've been other people, but I don't know who they are. You know, I don't know who the families are. I wish I did. I wish I did. I really do but I don't. I just know my family.
MR EDWARDS: Do you agree then that all the people you know that it's all from one family?
JOYCE NUDDING: Yes, one family. Yes. I suppose since you put it that way, yes.
662 It was not suggested that Mrs Nudding had fabricated this story so I accept that Mrs Judd did get lost in the bush, and that she did tell her family that she had been guided by ancestral spirits. But the proposition that she used the word 'Maduwongga' to describe them is inconsistent with the preponderance of evidence considered in particular in Section VII and I do not accept it. It will be recalled in this regard that Lena Judd passed away in 1979, well before Mrs Strickland's visit to the South Australian Museum.
663 More broadly, this one story, and the absence of any similar stories, provide no support for any conclusion that there was a body of spiritual beliefs distinct to a Maduwongga people.
XI. LAWS AND CUSTOMS AS TO SECTIONS, MARRIAGE, DESCENT AND TRANSMISSION OF RIGHTS AND INTERESTS IN LAND
664 The above is a survey of evidence on subjects that bear upon the issue that is at the heart of the separate question, as expressed in the second part of that question: was there a normative system of traditional laws and customs of a distinct land-holding group comprised of KB and her descendants? However, it has for the most part, looked at cultural and other markers of distinctiveness, rather than the normative content of laws and customs pertaining to land. This section looks at the evidence that directly addresses the existence and content of any such laws and customs.
665 The Expert Conference Report reveals the importance of kinship and marriage descent rules from the point of view of the Maduwongga applicant's case. Dr Mathieu's response to two of the propositions in the Expert Conference Report encapsulate that case. Proposition 2.1 in the report is: 'At sovereignty, the Aboriginal People in occupation of the Overlap Area acknowledged and observed the normative system of traditional laws and customs of the Western Desert (or a subgroup thereof)'. Dr Mathieu is recorded as disagreeing with that, 'because there is evidence that there was a specific tenure system in that region'. That alleged tenure system is then described at proposition 2.2, which asks: 'If the answer to 2.1 is "disagree", what was the relevant society (being a body of persons united by a body of laws and customs)?'. Dr Mathieu's answer to that is:
There was an identifiable and recognisable socio-linguistic group that derived its rights to land and waters through a system of kinship that was not based in a section system but in an asymmetric marriage system between holders of contiguous estates (mostly based on the evidence from Bates).
• The estate is inherited through paternal descent.
• The tribal territory is inherited through maternal descent.
• Edjudina range is a boundary and from Edjudina range to Coolgardie there is a different system in place. The Desert section system also stops at Edjudina range.
666 It appears from Dr Mathieu's cross examination that the 'estate' is a specific area over which a person has specific rights. In the case of KB it was around Edjudina. The 'tribal territory' refers to the entire Maduwongga country (ts 606).
667 As one would expect, there was very little lay Aboriginal evidence that addressed the question at the level of generality reflected in the two propositions from the Expert Conference Report. However, the Maduwongga applicant submitted in closing that the Pilki elder Stevie Sinclair (MCS para 23):
does not claim rights in the Maduwongga area in accordance with the Western Desert normative system, but acknowledges the application of the Maduwongga normative system to that area and the traditional rights of the Maduwongga claim group to that area and further acknowledges the traditional law of seeking permission of the Maduwongga people who speak for the country, in particular their elders Ms Strickland and Ms Nudding, before engaging in any activity in or concerning the Maduwongga area.
668 But the part of Mr Sinclair's witness statement on which the Maduwongga applicant relies in order to make this submission was not admitted into evidence, save for one paragraph that does not in fact support its submission. Mr Sinclair's actual evidence on this point was led orally, and did not go nearly so far as the submission. That evidence is described above (in Section VIII). Mr Sinclair does acknowledge Mrs Strickland's and Mrs Nudding's right to speak for country near Hobble Gap (see [492] above) and he also acknowledges that it is necessary to ask them for permission before hunting in the country around Edjudina (see [493] above). But of course his evidence does not directly address the 'normative system' (howsoever called) under which those rights are conferred.
669 I will now turn to what the evidence says about three related subjects all mentioned in the above quote from the Expert Conference Report: section groups, laws and customs relating to marriage, and laws and customs about the acquisition of rights and interests in relation to land.
670 Dr Mathieu's opinion raises, not for the first time in this judgment, the question of the existence of a section, or skin, system among the Maduwongga. The Maduwongga applicant identifies this as a point of distinction between its society and that of Western Desert peoples (see [37] above). It is possible that, beyond being a general marker of difference, the absence of section rules also made up part of the content of the posited distinctive normative system of laws and customs.
671 There is no stark dividing line between the topic of section systems and laws and customs pertaining to marriage, but to aid comprehension it is convenient to discuss them each in turn. In Mathieu I, Dr Mathieu suggests that a section system (double moiety system) goes further than a single moiety division by determining how 'every individual in the tribe stands as regards to others' and governing 'the rules of avoidance and reciprocity: who speaks to whom, who jokes with whom, who eats what, who stands, sits, camps with whom and where, and who avoids whom' (Mathieu I para 148-149). In an endogamous moiety system a person must marry within their moiety, but there are still people within the moiety who cannot be married, so rules of avoidance must be directed to specified relationships, such as a mother-in-law.
672 In Narrier at [848] Mortimer J held (in relation to Western Desert society) that the section or skin system has no bearing on rights and interests in land. I do not mention that in order to suggest that it binds me on what is, in essence, a question of fact. I mention it as a reminder of the need to be cautious before equating evidence that is directly about rights and interests in land and the normative systems under which they arise, with evidence about other laws and customs acknowledged and observed by a society.
673 Nevertheless, on the Maduwongga applicant's case, at least, the evidence about section systems falls into the former category. As will be seen, the model identified by Dr Mathieu, under which rights and interests in land are acquired under the Maduwongga normative system, is said to emerge from her findings about kinship structures among Aboriginal people in the Goldfields. It involves not only section systems (or their absence) but also the related subjects of marriage relations governed by endogamous and exogamous moiety rules and territorial exchange, and rights in relation to territory said to arise out of those matters.
Lay Aboriginal evidence about section systems
674 As already noted (see Section VII above), Albert Newland, whom I have found was recognised as Arthur Newland's son and KB's grandson, said his section group was milangka. But Albert Newland did not know which section group milangka was supposed to marry and said that he did not know 'any of the old system of that' because he was not an initiated man. He said it was not important any more and that the 'system of that issue today it's forgotten' (WT 3897-3898).
675 In Wongatha Joyce Nudding gave evidence as to the skin group of her mother (panaka), her father (tharuru) and her own (purungu). She said that 'you're born from your parents with that skin group' (WT 7962-7963). She did not distinguish between the customs of her father and his ancestors and those of her mother in that regard, or suggest that her father Arthur Newland only received a section group when he was older. But the questioning did not direct attention to those matters. She indicated that she thought that section groups would apply anywhere, such as for someone from Darwin or Queensland.
676 In this proceeding, Mrs Nudding gave general evidence in chief that she learned from her father that the Maduwongga people did not have skin groups. However he, Marjorie Strickland and Mrs Nudding were all given skin groups by Ranji McIntyre (the Walyen cousin of Mrs Nudding's mother Lallie Akbar).
677 Joyce Nudding gave a further explanation of skin groups in cross examination, as follows (ts 286-287):
Well, the skin group system was set up so that - the blood line which is in your immediate family. You know, you're born to parents, you got brothers and sisters or siblings, aunts and uncles of your parents, brothers and - that's what the blood line, right? Now this other side is running very close to it is the Aboriginal system. The one about where your skin groups come in, and the skin groups were set up and when they identify you, when you go to somebody else's place they will ask you who you - what your skin group is and as soon as you said your skin group, they know who you are, they know where you come from and all those sort of things.
MR EDWARDS: And is that also important so that you know what relationship you have with that person?
JOYCE NUDDING: Who you can marry and who you can't marry. That's what it was really set up for. That's what it's really on about. I'm talking about old stuff. Now they just marrying anybody.
MR EDWARDS: Was that an important rule when you were growing up?
JOYCE NUDDING: Yes, because I was a promised one myself.
MR EDWARDS: You had a promised husband?
JOYCE NUDDING: Yes, I was promised long time ago. I hope my husband's listening. But that's true, that's true.
678 Mrs Nudding maintained in cross examination that her father Arthur Newland 'never had skin group thing'. But she then said (ts 287):
On my mother's side they had the system of things. System of karimara, purungu, irriburuda, tharurn, buruma. All those sort of things. I'm a purungu. … Was given that skin because our mother was - she - my father they said, they give me - and I could be wrong on this but I know that he had a system. He had a thing - I think he was tharurn, they gave him tharurn.
679 It is clear from what Mrs Nudding said subsequently, however, that she was not resiling from her evidence that her father's side of the family did not have a skin system; rather she was referring to the skin classification he received from Ranji McIntyre.
680 Mrs Nudding did agree, however, that it would have been important that Arthur Newland had a skin group in order to take part in Law business. I note in passing that if the Maduwongga case that the Walyen recognised skin groups, and the Maduwongga did not, is correct, then this would tend to place Mr Newland as involved in Walyen Law business.
681 Mrs Nudding was cross examined on the fact that in her evidence in Wongatha she did not mention that the Maduwongga did not have skin groups. She accepted that she did not say this, seeking to explain it by saying that she was never asked, although she then wavered on whether that was so, and agreed that it was an important thing not to have said in Wongatha. The cross examiner put to her the proposition that there was a skin system all around Edjudina, Pinjin, Mulgabbie and Menangina, which essentially corresponded to the area she had identified as Arthur Newland's country. Mrs Nudding then said that she did not know (ts 291):
I don't know, I never lived in that time when they were doing that thing over there. I was only living in the time when my mother and that had thing, that's how I know I was the promised one to the one man, he died - he's an old man and I didn't find out about it until I was 15 years old.
MR EDWARDS: Just to be crystal clear, so you're saying you don't actually know whether your really old Maduwongga people had a skin system or not?
JOYCE NUDDING: I wasn't told about it, but at the time my father never spoke about it. Like I said, he was a man of few words and that sort of thing would've been under his hat and we can't talk about it. We were very strict about who we married and that.
MR EDWARDS: Your dad was?
JOYCE NUDDING: Yes.
MR EDWARDS: Did he say that you had to marry right skin way?
JOYCE NUDDING: He didn't talk about skin one but they know that - the first thing they will ask is where the family comes from, and I tell you, my husband over there - my husband over there he wrote a letter and he wrote a letter and asked whether he can marry me.
MR EDWARDS: To your father?
JOYCE NUDDING: To my father and the old people had a meeting about it, and they accepted it because they knew the family - the elders of the family.
MR EDWARDS: So what rule is that, do you know - - -
JOYCE NUDDING: I don't know what rule is that, but that's their rule probably.
682 Mrs Nudding also said that she did not know whether her aunts, Eva Quinn, Lena Judd and Violet Quinn had skin groups and she accepted that it was possible that they did. When asked whether KB had a skin group, Mrs Nudding just said (ts 292):
She lived in another time to me and she definitely would have been under the rules of the elders. That's all I can say. She would've known what they can do and what they can't do. Definitely, because she was really tribal people, bush people. People who can't even talk English properly.
683 Counsel for the NP respondent also asked Mrs Nudding about Tindale's note of KB's words about skin systems, made on a genealogy he took at Southern Cross in 1939, which has been set out above at [306(1)], but she was unable to shed any light on that other than suggesting that this would be consistent with the adults she knew 'never talk[ing] about skin group' (ts 293-294). She accepted that it was possible that KB was given her skin group by a man at Laverton as recorded in Tindale's note.
684 Mrs Nudding said later (ts 304-305):
You can't - you know - you can't go and marry in your own skin. That's where the skin group comes in, that's probably why the old people got a skin group from that side so they can marry certain people. Something. You know. Because, yet my old people on my mother's side as well was very, very strict on that. You can't be marrying wrong way.
MR EDWARDS: Were there any really strict marriage rules that your Aunty Eva, Violet and Lena told you about?
JOYCE NUDDING: Well, they didn't elaborate on it or anything like that, but they married men, you know, my aunty married a man, Uncle Norman Forrest, he was from the neighbouring - he probably from Waljen or I think he was a Noongar, I'm not sure about that. So don't say, you said this, I'm not sure.
This evidence will be further considered in the section about laws and customs relating to marriage below. Later still Mrs Nudding returned, unprompted, to stress the importance of skin groups. She was able to give evidence as to skin classification rules observed on her mother's, Walyen side but unable to describe with any specificity any different rules that were observed on the Maduwongga side.
685 Turning to Marjorie Strickland's evidence, in Wongatha she gave detailed evidence about 'skin group recognition' as a basis for the identification of people in her life as relatives of hers, although she said that her mother used a 'different system' (WT 7558). She said section group is a system 'throughout Australia'. When she was asked in cross examination whether the Maduwongga have their own skin group or section system, she said 'Well, skin group is the same everywhere', although she later agreed with a cross examiner that 'the skin groups are quite different in different parts of the country' (WT 7674, 7801).
686 The following evidence Mrs Strickland gave in cross examination in Wongatha is also relevant to section systems among the Maduwongga and to the broader question of marriage rules. She had been asked about her own marriages and de facto relationships and had confirmed that they were not to people in 'the right skin group'. Then (WT 7707):
MR HUGHSTON: Okay. And that's still the case today, isn't it, amongst the Maduwonga group, that skin groups really have nothing to do with who people choose to marry within your family?
MARJORIE STRICKLAND: Well, yes it has in terms of who you marry, because our children marry, we've always told them you've got to marry someone outside it, so it - well, it does relate to skin group then if we say well you marry outsider you're pretty well safe, which they've done.
MR HUGHSTON: Okay. So have your children - when you say marry, your children married outside, what do you mean by outside?
MARJORIE STRICKLAND: Outside the area, a long way away.
687 In this proceeding, Mrs Strickland's evidence in chief about skin groups and the related subject of marriage was brief (WS para 70):
I was taught that it was customary for Maduwongga people to marry outside their family. I was given a skin group (Barangu) by Uncle [Ranji] so I could associate with Mum's people, but Dad never talked about skin groups, and skin groups were never discussed with me by any of the other Maduwongga people.
688 It appears that 'Barangu' is a different spelling of purungu, which is the same skin group that was given to Joyce Nudding. In cross examination by counsel for the NP respondent, Mrs Strickland said that 'Uncle Ranji would say his daughter, Pearlie, she was Purungu and she is sister to me' (ts 190). She appeared to say that Ranji McIntyre 'sees me as his daughter, so I was born a Purungu' (ts 191).
689 Mrs Strickland said in cross examination that when her mother taught her how to relate to other people she did not use skin names like purungu or taroro but rather referred, for example, to 'Granny Pindjelina' and 'Uncle Bingy' (ts 176, 192). It appears that this may have been the 'different system' used by her mother that was mentioned in Wongatha. Mrs Strickland resisted, however, the proposition that the skin system was not as strong in people's lives now as it was in the 1960s to 1980s and said that she is still 'very discreetly' asked what her skin is (ts 192-193). But she appeared to be referring specifically to visits to Newman in the Pilbara, and when asked whether the skin system was not as strong around the Goldfields she said '[i]t's not so much around Kalgoorlie as such, you know, because of European settlements that things have changed a bit. There are a whole lot of Australians that are in this particular area, yes' (ts 193).
690 Cross examining counsel put to Mrs Strickland evidence she gave in Wongatha to the effect that when she was younger she could only marry certain people and that this was a reference to the fact that she could only marry people who were in the correct skin group. Her evidence about who taught her those rules was unclear.
691 It was also put to Mrs Strickland that she did not know a great deal about skin groups and she replied 'I know of them, because we didn't have any skin group' (ts 157), which I take to mean she was given no skin group by her father or the part of his family which Mrs Strickland identified as Maduwongga. She also said, 'because it's not so much these days, but if you're out in the community in Kalgoorlie it's different, because things have - things have changed over the years'. And I have reproduced above at [579] evidence Mr Strickland gave shortly before that point that '[m]y father's country don't have skin groups' (ts 155). She said that her father needed a skin group to marry her mother (who was Walyen) and was given one by her mother's cousin, Ranji McIntyre. He only got his skin group when he entered into a relationship with Lallie Akbar because 'Uncle Ranji wouldn't have it' (ts 193).
692 As for her aunt Eva Quinn, Mrs Strickland said she could not remember whether she had a skin group. She did not think that Auntie Eva ever mentioned skin groups to her but 'if she did, I may have just dismissed it or took no notice of it as a kid, you know, wasn't interested because that was in her day …' (ts 194).
693 Mrs Strickland also said she did not know whether KB had a skin group or not. Counsel for the NP respondent put to her the note on Tindale's genealogy sheet 110 of comments ascribed to KB that is mentioned at [306(1)] and [683] above. Mrs Strickland was then asked whether she accepted that there was a skin system around the overlap area or around Edjudina where KB was. Her answer was that KB never had a skin group but that she would have, had she been born in Laverton or anywhere else, where they have a six class skin system.
694 As for Arthur Newland, Mrs Strickland's evidence was that he was only given a skin group by Lallie Akbar's Walyen cousin, Ranji McIntyre, so that Arthur could marry Lallie. Like KB, taroro was assigned to Arthur. Mrs Strickland appeared to accept the proposition that this was inconsistent with the way skin groups operated traditionally, since a son should not have the same group as his mother, but that the same skin group was assigned to Arthur here because he had a white father.
695 Mrs Strickland also disagreed with the proposition that the reason KB had no skin group was that she came from 'South Australia way from another group called Maduwongga over there' (ts 197). She said she did not know how to answer another question, in which it was put to her that there may have been a skin system around Edjudina during KB's time and the reason it has not been talked about much in her family since is because it's 'fading out', saying 'As far as I'm concerned it's still here'.
696 Mrs Strickland said that she had not really had any discussions with Dr Mathieu about skin systems other than to tell Dr Mathieu that she (Mrs Strickland) is purungu. Mrs Strickland said of Dr Mathieu at this point (ts 198):
Well, she's doing her own thing. She's doing her own research and stuff and that. That's all I'm saying. I don't know but according to the court, right? That's father and we didn't know exactly what our father's skin group was. We thought it might have been that, but we don't know. … We wasn't sure because he never had one.
697 Turning to other Aboriginal lay evidence, the Pilki wati and elder Stevie Sinclair said that his people have four skin groups - burangara, pilangka, milangara and karimara. Mr Sinclair is milangara. Pilki people must marry a person with the right skin group.
698 Elvis Stokes also gave detailed evidence about skin groups in Wongatha which was incorporated into his evidence in this proceeding. He said that they 'play a big part in the Aboriginal culture. We use them to identify ourselves as panaka, tharuru, milangka, purungu, and use them to ensure that we do not intermarry' (WT 5011). Mr Stokes is a panaka. His evidence also explained how he learned about the skin system from observing older people using the skin group terms. He only knew what skin his father, Arthur Stokes, had, saying his mother 'may have a skin but I do not know what it is' (Exh 18 paras 4865, 4867).
699 In Wongatha, May O'Brien described skin marriage restrictions as follows (TB 1.8 p 905, see also at 920):
Wangkayi way is you know your kinship structure and if there's a guy over here, like in my case I'm a panaka woman and if that tharuru man which would be my husband would look at me and say well that's mine, and in that skin thing, you know who you can marry.
700 Dimple Sullivan also gave evidence about skin groups in Wongatha. Her skin group was panaka. She was supposed to marry a tharuru man. But her husband's (Roy Sullivan's) skin was actually karimarra. According to Mrs Sullivan it did not matter because they were 'half-castes' (WT 1033-1035).
Expert evidence about section systems
701 The respective positions of the experts as to the presence and significance of section systems in the overlap area at effective sovereignty are summarised at proposition 3.3 of the Expert Conference Report. They both agree that there were section names in the overlap area at that time. But in Dr Mathieu's opinion, there was a difference between the situation regarding section systems in the overlap area at sovereignty and the situation in the Western Desert, because they served different functions. She characterises the sections that were in place in the overlap area as 'external', in that they 'did not govern internal relations regarding rights and interests in the territories'. Those rights and interests arose instead 'out of the connubial model', a concept that will be addressed in detail below.
702 Dr Morton's view is more tentative. It is that there was possibly a difference between the overlap area and (other) Western Desert section systems at effective sovereignty. He says 'They were probably new, or fairly recent, and that may have had implications for the way they functioned compared to other parts of the Western Desert. However, the applicability of the connubial model remains debateable'.
703 To contextualise the discussion that follows, it is useful to set out the explanation of moieties and section systems which Dr Morton provides in Morton I. Dr Morton explains (at paras 101-102, citations omitted):
The skin system is a superimposition on a double moiety system - 'moieties' per se and 'generation moieties'. The basic meaning of 'moiety' is 'each of two parts into which a thing can be divided', but anthropologists have appropriated the term to apply to each half of society that always (or should always) marry into its opposite half. These moieties may be named or they may simply be implicit in the way people conduct marriages; in the Western Desert they tend to be named in the north, but not in the south. Generation moieties cut across the intermarrying moieties and further define people by age - or, more exactly, by genealogical level. Unlike moieties, which are 'exogamous' (one marries 'out' of them), generation moieties are 'endogamous' (and one marries within them). They can be formally defined as a divide between one's adjacent generations (or genealogical levels) and, on the other hand, one's own generation and the generations of one's grandparents and grandchildren. …
When the two systems are juxtaposed or 'crossed', they generate four categories - the 'sections' or 'skins', which function as names.
704 Turning to the detail of the expert evidence, Dr Mathieu's view that there were no sections is set against the background of the distribution of section systems that she finds in the records of Daisy Bates. Mathieu I refers to section systems found which Daisy Bates found in the Goldfields area and describes the various systems as found by Bates. Dr Mathieu summarises Bates's data as associating 'the people east of Coolgardie with a mixed section/moiety system and two section systems originating east and west of Maduwongga country. Bates also confirmed that the region was in a state of flux and a destination for migrating tribes' (Mathieu I para 124). It is difficult to make out which peoples, observing which systems, Dr Mathieu is describing here. In any event, a mixture of moiety and section systems is confirmed by further description of Bates's data which Dr Mathieu undertakes in Mathieu II.
705 The various possible causes and implications of the mixture of systems which Dr Mathieu identifies are captured in the following passage from Mathieu II (para 147, citations removed) - Kadee is a person who apparently appeared in records collected by Bates in around 1910:
Now, a mixed moiety-section system can certainly indicate inter-tribal marriage, as is the case in Kadee's genealogy. It could also indicate immigration or indeed both. There is no reason to doubt that in 1910, people were mixing in ways that they had not done in less chaotic times. In Bates' words: 'in these days of white settlement people travel out of their own areas where they would never have dared to go in the old days'. As early as the mid-1890s, Fred McGill told that people had come to Colgardie [sic] from the district round and that many people had died. Kadee's genealogy, however, strongly suggests that the class system was introduced into Coolgardie well before the gold rush. This class system implies social contact with the Desert peoples. And social contact implies ritual contact and trade. The mixed social system, therefore, may have been an adaptation to the traditional movements of Desert people into the Coolgardie-Kalgoorlie-Ularing region rather than a recent adaptation to immigration as I had first thought. We will see that ceremonial and economic data give weight to this proposition.
706 In the concurrent expert evidence session Dr Mathieu referred again to Bates's findings of different section systems in places within the overlap area and the inconsistency with which they appeared to have been observed, judging from genealogies collected by Bates and Tindale. However Dr Mathieu considered that the fact that Bates found sections in what is now the Maduwongga claim area 'just shows that people had relationships with Desert people that probably fell into the ritual sphere', and some intermarriages with those people (ts 435). So for Dr Mathieu, an individual's section was not relevant for internal relations within the group of people but only relevant to their external relations with other groups. Later in her first report, Dr Mathieu says that 'Bates found a mixed kinship system with both moieties and sections in Coolgardie and Widgiemooltha' because of the arrival in the region of a number of people from different tribes: Mathieu I paras 163-164. In cross examination she acknowledged that when and for what purposes sections were in use in the overlap area was 'complicated' (ts 557).
707 Dr Mathieu's view that the use of section systems in the claim area was only relevant for external relations is not clearly articulated in her written reports. The basis for it appeared only in the following passage from her cross examination (ts 650):
MR EDWARDS: Don't you, in your reports - in your first two reports, I mean, you cite some material from Bates where she says there was a four-section system around Edjudina. That's right, isn't it?
DR MATHIEU: Yeah, I cited it because she found two systems and she also found a moiety system, so she found a mixed system and that had me baffled for a long time. I really could not understand that and I thought that this might have to do with people migrating into the area, and I thought that for quite a while, but then when I actually revisited Bates' genealogies concerned more with the oversight, I saw that these genealogies went too far back in time for the section system to only be attributed to migrants. And it's not until I started to ask myself another question. Where else does Bates find these mixed systems? She finds them amongst the Ngadju and at Peak Hill. What do these places have in common to have mixed kinship systems like this, because it doesn't make sense to have a mixed kinship system, and I found what they have in common is that they are - they border the desert, they border the western desert. And once I understood that I say, okay, so these section systems have to do with relating to desert people. They are not necessarily the internal system at work.
708 In other words, the view that the section systems in the Maduwongga claim area were for the purpose of external relations with desert people is an inference that Dr Mathieu makes because the mixed kinship system there is similar to the systems found in other areas which she characterises as bordering the Western Desert.
709 Another aspect of Bates's data on which Dr Mathieu relied in cross examination was what she said were different section names on each side of the Edjudina Range. This, she said, indicates the presence of a socio-political boundary. It was unclear, though, which different names she was referring to. As best one can tell from her cross examination elsewhere, the distinction is between two section systems that Bates found in what is now the Maduwongga claim area and the section names that Tindale took from his Walyen informant, Yordy. The section names Bates found were, in one 'system', Taroro, Boorong, Kaimera and Eebarga and in the other system she found, Taroro, Boorong, Kaimera, and Boorgooloo. This appears to be contrasted with the class names which Tindale's Walyen informant Yordy gave: puru:ŋu, karimaia, milaŋu and panaka. However the proposition that the differences in names marks a social political boundary at the Edjudina Range does not take account of the fact that Yordy actually gave his country as encompassing Edjudina and going as far south as Pinjin.
710 Note also the similarities between the names that Bates found and those given by Dr Morton in Morton I as being in traditional use in the NP claim area: karimarra (alt. milangka); purungu; tjarurru; and panaka (alt. yiparrka). It is hard to discern a clear border from these data.
711 Despite all this complexity, in Mathieu I Dr Mathieu is 'quite certain that the Maduwongga did not have a section system' (Mathieu I para 146). As has been seen, she is prepared to base her view about KB's birthplace on that conviction, at least in part. The conviction appears to be based in part on a belief said to have been held by Tindale and Berndt 'that Maduwongga kinship organisation was based on the endogamous moiety system which Bates found among the Kalamaia and Kalaago' (Mathieu I para 146). In relation to Berndt, this seems in turn to be based on a map referring to rules of marriage organisation which is considered in the next section below.
712 As for Tindale, Dr Mathieu appears to say that he considered there was no section system in the Maduwongga area based on his note on genealogy sheet 110 that 'this is the zone of transition from 4 to no class': see [306(1)] above. She was taken in cross examination to a sketch map that Tindale drew in his journal (seemingly on 1 June 1939, some three weeks after he met KB), which shows a dotted line which, on its northern side, is labelled '4 class tribes' including at Laverton and, on its southern side, Kalgoorlie. The map also contains an unbroken line that runs south of Kalgoorlie, and south of that line a label saying 'no class'. This suggests that Tindale saw the area down to Kalgoorlie, including the Maduwongga 'tribal area', as potentially part of the '4 class' area or at least as a transitional zone.
713 Dr Mathieu's conviction that the Maduwongga did not have a section system also appears to be based on her analysis of genealogical field notes taken by Bates and by Tindale, which are considered above (see [706]ff). Dr Mathieu noted at one point during the concurrent expert evidence session that a woman of Edjudina on a genealogy taken by Bates which recorded generations that may have gone back as far as 1850 is not attributed a section, but she also acknowledged that Yordy, whose country ran down to Edjudina and Pinjin, did say that he had sections in his country.
714 Dr Mathieu then goes on to opine that KB and Arthur Newland did not have inherited section classifications but were given them at some time after birth, as in KB's account to Tindale of receiving tharuru from the man at Laverton. But unlike KB's account, there is no firm evidence that Arthur Newland was only assigned a section name some time after he was born. Dr Mathieu's view that he was is based on her understanding of how people from different sections were and were not permitted to marry and the rules of inheritance of sections. And yet, this is in turn based on statements about the sections of Mrs Nudding's and Mrs Strickland's mother (even though Dr Mathieu also said there was a degree of confusion involved in Mrs Nudding's and Mrs Strickland's idea of what skin group their mother belonged to). Regardless, Dr Mathieu uses that view to support her conclusion that there were no section systems in the area. She also supports that conclusion based on an account of different things said to her by Mrs Strickland and Mrs Nudding about section systems, albeit things that went beyond what those two witnesses said in their evidence in this proceeding. Dr Mathieu says they showed confusion about section systems and that this would be 'unthinkable in a society ruled by this system' (Mathieu I para 157). But she does not appear to entertain the possibility that it is the passage of time and the impact of white settlement in the Goldfields area, rather than the absence of a section system in a uniquely Maduwongga society, that explains why the witnesses do not belong to a society ruled by that system.
715 Turning to Dr Morton's evidence about section systems, he accepts that the 'fine detail' of KB's description to Tindale of how she came to have a section name makes it clear that she originally came from an area where section names were not normally allocated. He initially placed that area in the same general area as that from which Tommy Bluegum came, towards the border of Western Australia and South Australia where there was a people called 'Martu Wangka'. Although as will be seen he ultimately changed his opinion to say that it was more likely she came into Laverton at some point from the area of Bates's 'Marduwonga' Spinifex people who were found at Laverton (see at [363] above).
716 More broadly, Dr Morton's evidence refers to the general distribution of section systems in Australia which, he says, 'has a quite complex and dynamic history, with particular systems spreading in various directions and in various ways across much of the continent'. He says (Morton II para 52, footnotes omitted):
… sections were not in use about the South Australian/Western Australian border around 1930, but it is not precisely clear how far they had spread into the area mapped by Tindale as Maduwongga at that time. R. H. Mathews referred to sections being in place among what he called the 'Mt Margaret tribes' in 1906-1907, including the section 'Turraroo' that was given to KB at Laverton. At about the same time, Daisy Bates found section names operating in the following districts: 'Leonora, Malcolm, Menzies, Goongarree, Broad Arrow, Wanjaree (Gwalia), Yoolamunna (Kennedy's Soak), Bandala (Box Creek), Pinjin, Edjudina …, Ngangeree (Cane Grass [Canegrass]), and probably Kalgoorlie', although she did note a change in some of the nomenclature at Pinjin and Edjudina.
717 As has already been mentioned, Dr Morton points out that on Bates's genealogy for the Edjudina man Jurdain, everybody, including his parents, has a section name.
718 As Dr Morton notes, Goongarrie, Broad Arrow, Pinjin, Edjudina, Canegrass and Kalgoorlie are all within the Maduwongga claim area. He then expresses the following opinion (Morton II para 54, footnotes omitted):
In my opinion it is most implausible that KB was referring to parts of the Maduwongga-Nyalpa Pirniku overlap area when commenting to Tindale that she had 'no 4 class system' in her country. It is not entirely clear when the section system did arrive in the overlap area, but we can be reasonably sure it was established there at least three decades before Tindale interviewed KB's family in 1939. We can also be reasonably sure that it was established yet further south and was at least coming to be established about Kalgoorlie, where it was meeting another, different 'class' system of endogamous generation moieties with totemic identities (rainbow bee-eater and sacred kingfisher). Bates says that this system operated from '[west] and south of Kalgoorlie and Coolgardie', going north, west and south from there, but she also states that it could be readily articulated with 'the classes [four sections] north-east and east of them', because the people on either side of this divide 'have the same fundamental customs etc.'. …
719 The statements from Bates are footnoted to the book prepared from Bates's manuscript which Isobel White edited and published as The Native Tribes of Western Australia (National Library of Australia, 1985). Leading on from the statement quoted by Dr Morton, Bates says (Exh 36 pp 89-90):
At the point where the Beerungoomat and Jooamat divis[i]ons 'junction' with the classes north-east and east of them, at the divisional boundaries of both peoples, an adoption into one or the other can take place as both people have the same fundamental customs, etc., and only differ in their class divisions and marriage laws, the Southern Cross, etc., people having but the two divisions while the tribes north and east of them possess four classes. The Beerungoomat can enter the Boorong and Kaimera divisions of the Eastern Goldfields districts and the Jooamat go into the Tharrooroo and Eebarrga divisions.
720 The Beerungoomat and Jooamat appear to correspond with the 'rainbow bee-eater and sacred kingfisher' moiety divisions that were identified by Berndt (see below). Bates found them among the people whom she calls the Karratjibbin. According to Dr Morton, that grouping appears to correspond with Tindale's Kalamaia and Kalaago groups whom he located to the west and south west of the Maduwongga. In The Native Tribes of Western Australia, Bates said that this social organisation differentiated the Karratjibbin 'from every other known tribe in the West' (emphasis added) (Exh 36 p 55).
721 Counsel for the State cross examined Dr Mathieu on the statement here that the people to the north and east of the Karratjibbin possess four classes, given that this would encompass the Maduwongga claim area and so be inconsistent with her view that the Maduwongga possessed a moiety system rather than four sections. She was also taken to a map apparently prepared by Bates which showed the same thing. Dr Mathieu's response was that Bates's field notes, which also revealed a section system around Edjudina, also showed that 'the sections are not used as they would be by people who know what a section system is' (ts 590). This appears to hark back to the opinions summarised at [704]-[707] above.
722 Similarly, at p 105 of The Native Tribes of Western Australia, Bates wrote:
South and south-eastward of this section, on the Eastern Goldfields, and bordering the Beerungoomat and Joowuk peoples on their north-eastern side, one more change in class nomenclature comes in, Eebarrga being substituted for Boorgooloo. The marriage laws and laws of these people are similar to those of Peak Hill and Mt Margaret etc. sections, so that except for the change in class nomenclature, these three sections are otherwise identical.
723 Further on (p 106), Bates wrote:
The districts where the class names Boorong, Kaimera, Boorgooloo, Tharrooroo obtained, were: Leonora, Malcolm, Menzies, Goongarree, Broad Arrow, Wanjarree (Gwalia ), Yoolamunna (Kennedy's Soak), Bandala (Box Creek), Pinjin, Edjudina (the Eebarrga equivalent is also found at the two last named places), Ngangeree (Cane Grass), and probably Kalgoorlie.
724 Dr Mathieu was cross examined on the first of those passages by counsel for the MG respondent. Her response appeared to be that (ts 691):
when you look at the genealogical material, and she does it herself, the system is not operational in the proper way. They break those laws when they marry. And you got to look at the genealogies to find that. She concludes that, you know, all the societies going, you know, to hell and back, but actually she doesn't think to consider that the people may have their own local system that they're grafting these things on.
725 In cross examination by counsel for the NP respondent, Dr Mathieu did not accept the presence of a four class system at Edjudina when Bates was doing her work because, she said, that was 'I think, overshooting the mark' (ts 650). She appeared to distinguish between the assignment of sections and the use of those sections as part of a system of marriage regulation, and as quoted above relied on a distinction between systems that 'have to do with relating to desert people' and 'internal' systems.
726 However Dr Morton concludes (Morton II para 59) that it is improbable that KB's language:
actually belonged to Edjudina, an area apparently familiar with a version of four sections by about the turn of the century - although this is not to say that she could not be understood by speakers of the local dialect, or that her children did not pick that dialect up. Given the spread of sections in Western Australia, the logical conclusion to make is that, somewhat like Tommy Bluegum, she probably came into Laverton and Edjudina after traversing country between there and the Western Australian border. …
727 Citing work by a specialist in Western Desert section systems, Professor Laurent Dousset, Dr Morton says that it was likely that the section system did not reach relevant areas in South Australia until the 1920s to 1940s, diffusing into the Western Desert 'in a kind of pincer movement from the west and the northeast' so that the south eastern part of the Western Desert was the last to be affected. However how this is impacted by Dr Morton's late revision of his view that KB probably did not come from the area of the South Australian 'Martu wangka' people is unclear.
728 In Morton II, Dr Morton refers to Dr Mathieu's opinion that the mixed social system of the Maduwongga was 'an adaptation to the traditional movements of Desert people into the Coolgardie-Kalgoorlie-Ularing region' (see [704] above). He says it is 'a speculative view based on minimal data'. It is premised on the idea that when KB told Tindale that there was no four-section system in her country, she was talking about the areas from Edjudina to Coolgardie. But Dr Morton's opinion is that this was unlikely, and it is more likely that KB was talking about an area to the east of Edjudina, in or towards spinifex country. Dr Morton says that of 'particular note is KB's apparent use of the phrase "my country"', which referred to an area without sections, yet the evidence points to the Edjudina area as being one where sections were well established, at least by c. 1910' (Morton II para 100b).
729 This point is damaging to the Maduwongga applicant's case, given the weight Dr Mathieu places on both the absence of section names in KB's country and the view that KB was born at Edjudina. It is no answer to say that KB was born perhaps 30 years before Bates made the findings around 1910, when the area covered by section systems may have changed over that time. Be that as it may, KB appears to have been speaking to Tindale in the present tense, in 1939. If she was saying that there were no section names in her country, and that was not true of Edjudina, a place with which she had been associated, then she must have had in mind a different country as 'her country', likely her birth country.
730 Dr Morton refers again to Bates, as the provider of the earliest data available, as indicating the section system was established in this area by the first decade of the 20th century, and says that we do not know how long it had been there. Dr Morton sees no justification on this basis for Dr Mathieu's opinion that the kinship organisation of the people of Edjudina and Coolgardie differentiated them from their 'tribal neighbours' (Morton II para 105).
731 In the concurrent expert evidence session Dr Morton accepted that Bates's data about section systems in the claim area was confusing because it shows people (ts 435-436):
utilising what is evidently a number of different strands of systems in their relationships. … people had been adopting them from different directions, including some that were quite contradictory. And it's well-documented in anthropological literature of lots of areas where the introduction of section systems through intermarriage with neighbours has caused any amount of confusion to people.
732 Similarly in cross examination Dr Morton said that there was 'the mixing of two kinds of section system, and the endogamous moiety system from further southwest' (ts 731).
733 But for Dr Morton, the important point is that section systems had been moving into the claim area and elsewhere quite quickly through intermarriages and were in the overlap area from the earliest recorded genealogies from 1910. So if KB was born in an area that did not have section systems, that probably means, Dr Morton considers, that she was born further east in spinifex country where section systems had not yet reached.
734 The closing submissions of the Maduwongga applicant criticised Dr Morton's evidence about the dynamism of the section system because it was not based on historical data but on 20th century observations of migrating and displaced persons. But it is difficult to make much of this criticism given that 'historical data' prior to those observations is non existent. The submissions rely on passages from Bates's The Native Tribes of Western Australia as indicating that 'Bates was able to show that marriage class systems (sections, moieties, totems etc.) were in fact attached to particular regions as well as translatable from region to region' (Maduwongga closing reply para 81(f)). But it is not possible to see how Bates's observations at a particular point in time show that the system was static, and indeed this submission contradicts Dr Mathieu's view that 'adaptation' to a section system arises not just from incursion by Europeans but also from 'traditional' movement of people (see [704] above).
Observations about the evidence concerning section groups
735 The lay Aboriginal evidence does not establish that KB and the Aboriginal people she lived with had no section system. The evidence Mrs Nudding gave in cross examination about her knowledge of section or skin classification among the Maduwongga made it quite clear that in truth, the most she could say was that Arthur Newland never talked about skin groups, not that he said that the Maduwongga did not have them. In cross examination she became equivocal about whether there was a skin system in her father's country.
736 Similarly, Mrs Strickland's evidence in chief was simply that Arthur Newland and 'the other Maduwongga people' did not talk about skin groups, not that they told her that there were none among the Maduwongga. In light of this, and in light of her evidence in Wongatha that skin groups are the same everywhere, I place no weight on her assertion in the course of cross examination that her father's country did not have skin groups. And at other points in cross examination, her evidence was more equivocal. Her evidence that KB never had a skin group but would have had, had she been born in Laverton, is very similar to Dr Mathieu's opinion. I infer that it is derived from that opinion, and so does not corroborate or support it. As far as the position in Arthur Newland's lifetime goes, and certainly as to the position in KB's lifetime, the tenor of both Mrs Strickland's and Mrs Nudding's evidence was that they did not know whether there were skin groups.
737 The lay Aboriginal evidence of Stevie Sinclair and members of the NP claim group was clearer: in the Western Desert, section systems are observed and remain relevant, even if marriages do not always comply with them (see further the next part, titled 'Laws pertaining to marriage' below).
738 As for the expert evidence, the overall picture about section systems in the Maduwongga claim area in KB's time is one of change and complexity resulting from movements of people and intermarriage. Dr Morton describes a 'complex and dynamic history'. Dr Mathieu herself refers to a mixed social system and allows that it may have been an adaptation to 'traditional' movements of people, as distinct from those later prompted by white settlement. But regardless of the amount of movement and adaptation, it is quite clear that there were section systems observed in the Maduwongga claim area, including around Edjudina, during KB's time. Bates found that they were there and although it appears that she did not herself visit the Edjudina region, no party questioned the correctness of her views on this point. Dr Morton's opinion, evidently based on a deep knowledge of the literature, relies on Bates in this regard.
739 Dr Mathieu's attempts to reconcile those two things were unconvincing. To say that people were not using section systems correctly, or were not using them as they would be used by people who know what a section system is, may reflect the impact of all this movement and change and of the disruption caused by white settlement, but it does not belie the underlying existence of section systems in the area.
740 The view that the section systems here were purely for use in external relations had little basis in the evidence. Since I put no weight on Mrs Strickland's assertion in cross examination that her father's country had no skin groups, there is no Aboriginal lay evidence that supports any distinction between the observance of section systems in the Maduwongga claim area and its observance outside, including in Walyen country, that might lead to an inference that the Maduwongga observe it only to regulate external relations. That is so even if one disregards the difference of a century or so between KB's time and the time of Mrs Strickland's evidence.
741 The only other possible basis in the evidence for the idea that section systems in the Maduwongga claim area were solely for external relations is Dr Mathieu's inference that, since societies bordering the desert observed mixed kinship systems, adoption of sections, including among the Maduwongga, were for the purpose of relating to desert people (see [707] and [708] above). But Dr Morton's expert opinion, which I accept, about the moving and dynamic nature of section systems at both Bates's time (c 1910) and other times means no firm inference can be made based on a description of the state of affairs at that particular point in time. A mixed kinship system found at a particular time might mean it points externally, but it could also just be a snapshot, in effect, of a society that is in the course of adopting section systems for its internal purposes as well. The inference Dr Mathieu makes that section systems were for external relations only because societies with mixed kinship systems all bordered the Western Desert simply does not follow.
742 Turning away from the relevance of section groups internally or for external relations, I have already examined the data found in Bates and noted that they do not permit identification of any clear border between areas of two different section systems, or between an area where a section system was observed and an area where it is not (see [709] and [710] above). It is abundantly clear that the content and coverage of section systems were in a state of flux in the Maduwongga claim area during KB's time.
743 I now move from the subject of section systems to the related and overlapping topic of laws and customs pertaining to marriage, including the moiety system. This is the second matter that the Maduwongga applicant says distinguishes the Maduwongga normative system from that observed in the Western Desert (see [37] above).
Lay Aboriginal evidence about marriage laws
744 Joyce Nudding's evidence in chief as to marriage and kinship laws and customs was (WS 6.1 paras 61-62):
As far as marriage was concerned, the basic rule that the Maduwongga people recognised was to marry outside your blood-line. I was taught that it was customary to make sure we could establish kinship relations by telling our children who was related to one another, and how they were related.
745 Paragraph 681 above describes some evidence Mrs Nudding gave about how her own marriage was authorised and [684] describes her evidence when asked about the rule that she described in her witness statement. When cross examined, she confirmed that it was her aunties and Doris Thomas (a cousin on her mother's side) who taught her the above rule about marrying outside your blood line.
746 Mrs Nudding accepted in cross examination that if there was a Maduwongga rule that one must marry outside one's blood line, it would not be possible to observe that rule within the Maduwongga group because there is now only one Maduwongga family.
747 In cross examination, Mrs Nudding said that her father Arthur Newland, who she said was Maduwongga and her mother, Lallie Akbar, who was Walyen, were married 'blackfella way', as distinct from 'in a white fella way' (ts 238). She confirmed that it was common 'under Aboriginal way of looking at things' for people from out Lallie Akbar's way (broadly, Linden to Laverton to Murrin Murrin - see [284] above) to marry Maduwongga people. She was aware of other people doing similar things.
748 In cross examination Mrs Nudding gave further evidence about observance of marriage customs by initiated men as follows (ts 301):
… That's another thing. When they're going through the L-A-W.
MR EDWARDS: Going through law?
JOYCE NUDDING: Yes, when they're going through the business, all these young people, they think they're going to come back and the proper rule thing is they can't come back and marry anybody - this and that - around here. They got to marry the ones that they promised to. That's the rule.
MR EDWARDS: For the boys that have been through the law business? Are you talking about boys that have done law business and when they come back, do they - - -
JOYCE NUDDING: Yes. Yes. That's what the customs and rules and regulations are.
MR EDWARDS: Yes.
JOYCE NUDDING: Aboriginal way. You can't come back and - I'll marry that one over there. They didn't want to go through the law and doing all the business and live like a white man, well they got to stick to - then they can marry whoever they want to, but when they gone through that sort of thing they got to come back and marry the proper way.
MR EDWARDS: Are you talking about - - -
JOYCE NUDDING: I'm talking about in general, you know, just what goes on, if it happens.
While this is evidence of observance of marriage rules, it does not permit identification of the particular content of the rules or support any conclusion that the Maduwongga had rules distinctive to themselves which they, and no others, observed.
749 As has been said, Mrs Strickland's evidence in chief said that she was taught that it was customary for Maduwongga people to marry outside their family (see [687] above). She expanded on this in cross examination to say that it was common knowledge that 'you've got to marry outside your family' and that 'you can't marry close'. She gave examples of marriages of which she was aware which, she said, were too close. But when it was put to her that the rules were the same on both her father's and mother's sides of the family, that is, Maduwongga and non-Maduwongga, she said only that she had never had to deal with relationships on her father's side like she had with her mother's side, because there were a lot of people on her mother's side and on her father's side it was only a small group of people. She professed not to know whether the small group of people on her father's side would be forbidden to intermarry because any such marriage would be 'too close' (ts 201).
750 The evidence of Mrs Nudding and Mrs Strickland about marriage laws among the Maduwongga resolves to the basic point that one must marry outside one's blood line. This provides no basis for distinguishing between any uniquely Maduwongga marriage laws and the laws and customs pertaining to marriage of the people of the Western Desert or of any other group. I have already referred to the evidence of other lay witnesses about marriage rules that was given in the context of section systems (Stevie Sinclair, Elvis Stokes, May O'Brien and Dimple Sullivan). Although the rules described there were more specific, it is not clear that a broad rule that one must marry outside one's blood line makes Maduwongga society distinctive in that regard.
Expert evidence about marriage and kinship organisation
751 As proposition 2.2 in the Expert Conference Report quoted above suggests, Dr Mathieu's opinion about marriage laws among the Maduwongga appears to have emerged from her consideration of Bates's work, at least in the first instance. According to Dr Mathieu, Bates believed that the people northeast of Coolgardie (within the Maduwongga claim area) were a distinct tribe from their south western neighbours, the Karratjibbin, due to a distinct kinship organisation. The Karratjibbin had an 'unusual endogamous moiety system' (Mathieu I para 111). This distinguished them from neighbouring groups in which a four section system was prevalent.
752 As appears from the discussion above, the four section system prevailed, at least, in the Western Desert. How, then, does the kinship organisation of the people northeast of Coolgardie distinguish them from their desert neighbours? Dr Mathieu appears to give the answer to this when she goes on to say that although Bates found the mixing of section systems discussed earlier, 'Tindale and Berndt believed that Maduwongga kinship organisation was based on the endogamous moiety system which Bates found among the Kalamaia and the Kalaago' (Bates's Karratjibbin) (Mathieu I para 146). She refers to the 'limit' of the four-section system as falling between the Maduwongga and the Walyen.
753 It appears this is taken from a map attributed to Berndt, which appears in Mathieu I at Figure 5. The exact provenance of the map is unclear, however, because Dr Mathieu references it not to any publication by Berndt but to a publication of the Government Printing Office of Western Australia in 1979 entitled Western Australia: An atlas of human endeavour - 1829-1879. The map shows 'tribal' boundaries drawn over the south-western part of Western Australia, including that of the Maduwongga. These seem to have been taken from Tindale, given the close visual correspondence of the boundaries to the map in Tindale's 1974 book. In her first report Dr Mathieu acknowledges that Berndt's map is based on Tindale's.
754 In the map, Berndt (assuming it is Berndt) places the Maduwongga in a group of tribes to which he attributes:
Two alternating, endogamous, named divisions called Kingfisher and Bee-eater (birds): marriage took place within one's own division and one's children were of the opposite division. It can be regarded as a modified section system or an elaboration of the traditional Western Desert form. Galamaia - Galago - Nyunga 'type'.
The Kalamaia and the Kalaako are the names Tindale uses in his 1974 book for tribes that Berndt calls the 'Galamaia' and 'Galago' which were located to the west and southwest of the Maduwongga claim area. As has been said, Dr Morton's evidence was that they correspond to Bates's Karratjibbin.
755 No data or more detailed discussion explaining how Berndt came to attribute the system found among those people to the group he identified as Maduwongga were in evidence. Dr Mathieu seems to ascribe it to the existence of that system in the neighbouring tribes, and Berndt's notion that 'all tribes share a typical social characteristic with some of their immediate neighbours and not with others - thus forming the cultural blocs' and that 'Berndt reasoned that if the Maduwongga did not have sections, unless they were the sole exception in the tribal map, they had to be in possession of the endogamous moiety system' (Mathieu I para 158). She also describes (Mathieu I para 185) Berndt's grouping of the Maduwongga with the Kalaago and Kalamaia and other groups as 'based on deduction - if the Maduwongga cannot be grouped with the Western Desert society, then they must be grouped with their other neighbours: the Kalamaia-Kalaago cultural bloc'. But no writings of Berndt are referred to which contain any of this reasoning. It is not clear what Dr Mathieu ultimately made of it here, however, because in Mathieu II she says that 'having pondered the matter for yet another year, I am no longer inclined to agree with Berndt' (Mathieu II para 145). In Mathieu I, however, Dr Mathieu describes the endogamous moiety system as a 'significant boundary between the Western Desert people and the Maduwongga because kinship organisation is a core structure and a core dynamic of tribal cohesion' (para 147).
756 Although the basis for Berndt's classification of the Maduwongga as a society with an endogamous moiety system is not clear, Dr Mathieu also finds this classification in Bates. Specifically, Dr Mathieu distinguishes between a moiety system and the four section system of the Western Desert. Her reasoning is (Mathieu I para 152, emphasis in original):
… In societies where all social relations are established according to kinship relations, social organisation is kinship organisation. As we saw, a generational moiety system implies a significant organisational difference between the Maduwongga and the Western Desert societies - even if and when the class system can be adjusted to fit in with the moiety divisions as Bates found (Bates, 1985: 89-90). Now, according to Bates, what distinguished the people of Kalgoorlie from the Karratjibbin was precisely the moiety system because as she put it, '[the Karratjibbin] social organisation (3) [sic] customs, laws, initiation, etc. coincide with those of their eastern, northeastern and southeastern neighbours' (Bates, 1985:55). In other words, the people west and east of Coolgardie were culturally indistinguishable from the Desert people, and the people east of Coolgardie were indistinguishable from those of Southern Cross except for the moiety system.
757 With respect, this is difficult to follow. Who is meant by 'the people of Kalgoorlie', whose social organisation is said to have differed from that of the Karratjibbin, is unclear; is it the Maduwongga or is it Western Desert people? If it is the Maduwongga, then it is not explained why Dr Mathieu goes on to say that the Karratjibbin social organisation was the same as that of their eastern and northeastern neighbours, which on Dr Mathieu's hypothesis included the Maduwongga. Then, what is meant by the apparently comprehensive reference to people both east and west of Coolgardie is also unclear.
758 If, instead, Dr Mathieu is positing that the Maduwongga observed an endogamous moiety system that was somehow different to that observed by the Kalamaia-Kalaago/Karratjibbin, she does not articulate how the two systems differed. As will be seen below, by the time of Mathieu III, Dr Mathieu had significantly changed her account of the Maduwongga marriage system to a closed 'connubial' model. But in Mathieu I there is little description of the endogamous moiety system possibly unique to the Maduwongga, and little support for it by reference to evidence.
759 Later in Mathieu I, Dr Mathieu returns to the subject to explain why the system did not appear to have been observed in Maduwongga society after the 1930s. That is because (Mathieu I paras 529-530):
After the gold rushes, Maduwongga society was almost annihilated, and in the course of the twentieth century, the Maduwongga had to marry out of their tribal group because they could no longer find (suitable) Maduwongga marriage partners. But the local descent group had always been an exogamous unit, and the Maduwongga, like other Aboriginal groups, had always engaged in inter-tribal marriages. Due to their small numbers, tribal exogamy replaced the former tribal marriage system (moiety or section) as early or as late as the 1930s. However, Daisy Dick-Cruesh, Arthur's first wife, was possibly Maduwongga because she was born in Kalgoorlie.
… When it became impossible to maintain the traditional marriage practices, the latter were rendered obsolete. As I explained in Section Two, the combination of obsolescence and the necessity to enter into other types of marriages led to inter-tribal marriages. Once the old marriage laws were no longer used, they were no longer invoked and no longer taught to the younger generations. They were forgotten. It is also possible that the events of the 1890s, the number of deaths, the psychological bewilderment, and the unfathomable distress and confusion which trauma on this scale engendered also had some impact on the collective memory.
760 Dr Mathieu nevertheless sees developments in the past century or more as adaptation of Maduwongga laws and customs to the exigencies she describes, and not adoption or continuation of Western Desert laws and customs, or abandonment of Aboriginal laws entirely. Although the practices observed by the members of the Maduwongga claim group do not accord with the endogamous moiety system Dr Mathieu takes from Bates, for Dr Mathieu this does not raise doubts about whether that system ever existed as part of a distinctively Maduwongga normative system. Rather (Mathieu I para 531, emphasis in original, definitions of technical terms inserted taken from Charlotte Seymour-Smith, Macmillan Dictionary of Anthropology (1986)):
Importantly, in spite of the diffusion of the section system in the Kalgoorlie Goldfields, in spite of intermarriage with Desert people, Maduwongga descendants did not adopt Western Desert customs, and they still do not have skin groups. Furthermore, the generational principle has endured to this day in the close association between grandparents and grandchildren and the responsibility, esteem, rights and obligations owed to grandparents (see also McDonald-Hales, 1998:84). Maduwongga society has persisted via an adjustment of the kinship system: when Maduwongga kinship could no longer concern itself with the rules that governed marriages, it shifted focus onto the continuity of consanguinal ties [relations based on biological ties] and descent. When their numbers were so reduced that the Maduwongga could no longer marry within their tribe, the descent system became ambilineal [tracing descent through both male and female links]. As Edward MacDonald [sic] explained, ambilineality is the means by which Maduwongga identity is obtained and carried on. The significance of this structural adjustment cannot be stressed enough because ambilineality is the sole means by which a Maduwongga identity embedded in kinship ties, as Aboriginal social identity must be, could possibly be carried on. If it were not for ambilineality, the Maduwongga would have been absorbed by the families or the groups they married into. Hence, this kinship adjustment has been central to their social resilience and resistance, and the maintainance [sic] of their society and their tribal identity. Perhaps more significantly, Maduwongga society endured because from times immemorial, political power and economic agency were vested in the small family units and local descent groups, and not in the tribal unit. Hence, Maduwongga society was able to maintain its identity, its agency and regenerate beyond the catastrophic loss of people.
761 In light of Mrs Nudding's and Mrs Strickland's evidence that they each have skin groups, the first sentence of this is simply wrong. Even if they only obtained those classifications from their Walyen mother and her relatives, to accept them looks very much like adoption of Western Desert customs. More broadly, this passage seems to take as a given the proposition that there was a distinctive Maduwongga identity, and then seeks to explain how it has been maintained, albeit in changed form. Dr Mathieu does not appear to entertain the possibility that the asserted lack of any section groups among the Maduwongga claim group today, and the lack of any strictly observed marriage rules, could be the result of abandonment of any number of different kinship structures that were observed before the impact of white settlement changed things irrevocably. It is hard to see how principles of a general nature such as ambilineal descent, consanguinity and closeness of grandparents and grandchildren provide any support for the different and very specific structure obtaining at the beginning of the 20th century which Dr Mathieu claims to have found.
762 Turning finally to a different aspect of the posited marriage laws, in Mathieu II (para 104), Dr Mathieu discerns geographical features of the Maduwongga marriage system from Bates's notes:
Wherever Bates mentions Edjudina, she always connects Edjudina to Coolgardie and Canegrass. Hence, in folio 12, she writes: The line or road of the Edjudina and Kurrawang natives was Edjudina, Kurnalpi, Kalgoorlie, Kanowna. A Coolgardie man went along the Kanowna line for his wives. Bates may also be speaking of a totemic road since marriage and male initiation usually go together. In folio 8, she records a Kalgoorlie pedigree that covers Edjudina, Kurnalpi, Kalgoorlie, Broad Arrow, Kanowna. In folio 11, she confirms a marriage line from Edjudina, Kurnalpi, Kurrawang, Kanowna, Kalgoorlie, parts of Coolgardie, where all the people are kindred (folio 11/53). Bates is more than likely referring to the administrative district of Coolgardie than to the town-site, as the name is understood today. In 1910, this was a large district which included Bullabulling and a sizable region west of Bullabulling, none of which is included in the Maduwongga claim area. In (folio 12/67), Bates again confirms the marriage line between Edjudina and Coolgardie and adds that the Southern Cross people also met there. In (folio 12/69), she confirms that Southern Cross, Mt Jackson, Burracoppin and Kellerberin are one line.
The folios on which Dr Mathieu relies here were not in evidence.
763 The concept of a marriage line appears to refer to a connected series of geographical locations, in which a person in a particular place may take a spouse from certain other particular places. As will be seen, Dr Mathieu places some significance on these data in her account of the 'marriage system' which she believes applied in the Maduwongga claim area, and which determined how rights and interests in relation to land were acquired. To that crucial subject I now turn.
Acquisition of rights and interests in country
Lay Aboriginal evidence about acquisition of rights and interests in land
764 What did the witnesses who were part of the Maduwongga group, or who gave evidence for the Maduwongga applicant, say about the central question of laws and customs under which rights and interests pertaining to land were transmitted and acquired? The answer is very little.
765 Albert Newland said his claim to membership of the claim group in Wongatha, and so to the rights and interests that would have been recognised had that claim been successful, was made through his father Arthur Newland and his grandmother, KB. He was adamant that his native title rights came from them, and thus adamant that KB's country was the same as the country he was claiming. When asked how he knew that, he said it was because he had lived with KB, and (WT 3907-3908):
It was natural, it comes a natural issue, where your father and your grandmother's been, that particular area is handed down to - and you have the right in that country, in that area.
766 Joyce Nudding's evidence was that KB got her country from her father's side, not her mother's side. KB's father was Johnny; Mrs Nudding did not know who KB's mother was. She acknowledged that Norman Forrest had some rights in relation to the overlap area, including Edjudina, but they appeared to be rights to hunt and gather rather than full rights to speak for the country. She said that Norman Forrest 'would have had some rights there, but not overall rights. In other words, he wouldn't have went over the top of my grandfather', by whom she meant in fact her great-grandfather, Johnny (ts 313). Elsewhere, when cross examined about whether May O'Brien had rights around Edjudina, Pinjin and Mulgabbie, Mrs Nudding said it all depended on where her parents come from but she did not elaborate on that. A little later she resisted the proposition that being born at Edjudina and having spent time with KB there gave Dora Cotterill rights to that area. She did not accept that being born there in the traditional way gave rights. Generally, her understanding seemed to be encapsulated in the following passage (ts 323):
I'm - you know, I myself, I think that if your ancestors came from that thing and they came from way back then you've got to have - you can have some - you can have rights to speak for the country but you may have rights, you know. People - somebody comes in here - I'm not talking about Dora, I'm talking about just general. If people come in here and they only just stop here for six months does it mean all of a sudden they're the king pin of the place or something.
767 KB, however, was 'a traditional owner because that's where her family - that's her - her grandfather and everybody all - they live there' (ts 326).
768 In cross examination, Marjorie Strickland said that she thought that KB got her country from her father 'because I don't know her mother' (ts 94). But she was not aware of any rule or law or custom for her family about whether one should follow one's father or mother for country.
769 Mrs Strickland gave evidence suggesting that marriage could bring rights in relation to land less comprehensive than birth did. In cross examination by counsel for the NP respondent, she accepted that there were other Aboriginal people living around Edjudina at the time when KB was living there, who did not share blood ties to KB, and that one of those was Norman Forrest, who was head stockman at Edjudina Station and was not Maduwongga. He married Eva Quinn in about 1921 or 1922 which, according to Mrs Strickland, only gave him some rights in relation to land. She said (ts 208):
No, he's only married in. You only - when you're married in, you only have certain rights, you know, that could be - you know, they're not - you don't own the country, but you've got to allow because he's married to Eva, he was allowed to go and hunt for whatever he wanted to. You know, those are the rights that people have when you're married in. You can't go in and take over other people's country. You're only married in.
770 Counsel explored the detail of those rights with Mrs Strickland. She accepted that Norman Forrest could go anywhere in the area and that he had a right to hunt and gather.
771 By the same token, Mrs Strickland appeared not to accept that being born on country necessarily gave rights. Counsel put to her that Dora Cotterill had rights in the area around Edjudina because she was born there and because she spent time there as a child. Her response was (ts 223):
Being born on country and having rights doesn't really mean a whole lot because you could be walking through to ceremonies, and you have a pregnant wife or a woman, and they could be staying there and you could have given birth to someone there, and when they had the baby, they would have walked on. What rights do they have? I don't know. That's the simple thing anyone that's like me going, 'I might have born at - born in Perth', that doesn't give me a right to be given Perth.
…
No, just because you're born there doesn't mean to say you have rights to the country. You could be passing through. … You could be coming from the east and you could be getting off the Cairns train, and you could have been going up there to ceremony, kurangarra time, and you go in kurangarra time and doing ceremonies and you happen to be pregnant, doesn't mean to say you own this country. You come from that way.
772 Mrs Strickland appeared to think that Dora Cotterill and her mother Lilly may have just been passing through Edjudina, while hiding from the Protector of Aborigines, but she was not sure where they were returning to.
773 In cross examination in relation to Roy Sullivan, Mrs Strickland appeared to consider that the question whether he had rights in the country around Edjudina depended on who his mother was and where she came from (which in Mr Sullivan's case Mrs Strickland did not know). Similarly, she seemed to consider that the fact that May O'Brien's mother came from Warburton meant that May O'Brien did not have rights in Edjudina. In cross examination in relation to Darbin Murphy, Wobalie Blizzard and Stumpy Edwards, Mrs Strickland said she did not know whether they had rights in relation to Edjudina and acknowledged that anything was possible, although she said she did know that 'they don't come from there, they come from other way' (ts 222).
774 In short, the lay evidence about how rights and interests in land were acquired under the Maduwongga system was sparse. It amounted to an assertion that those rights were acquired by descent, with perhaps an acceptance that marriage gave some more limited and perhaps temporary rights, and a denial that birth on country by itself gave any rights. Also, this evidence had little obvious connection to the position in KB's time; the evidence of Mrs Nudding and Mrs Strickland about how KB acquired rights was broad and based on assumptions about where her father and other family members came from.
Expert evidence about the acquisition of rights and interests in relation to land
775 Given the paucity of lay Aboriginal evidence on the subject, the Maduwongga case as to the existence of a normative system giving rise to rights and interests in land rests almost entirely on the evidence of Dr Mathieu. It is therefore necessary to look at her evidence on that topic in some detail. But it is worth pausing before that to emphasise what has just been said. There is no Aboriginal evidence supporting the existence of any distinct normative system of laws and customs concerning the acquisition of rights and interests in land that was observed in the Maduwongga claim area. Mrs Strickland could not describe laws about inheritance of rights and interests in land. And while her evidence about the rights Norman Forrest acquired by marriage is consistent with Dr Mathieu's model, nothing suggests that this was a rule unique to a 'Maduwongga' system. This lack of support in the Aboriginal evidence significantly undermines Dr Mathieu's opinions.
Dr Mathieu's identification of territorial associations of marriage system
776 Like her account of the endogamous moiety system, it is from Bates where Dr Mathieu takes her description of how rights and interests in relation to land are acquired in the normative system she identifies for the Maduwongga. I have already described the building blocks of the theory: the identification of an endogamous moiety system in the people to the north east of Bates's Karratjibbin, and the concept of a territorial marriage line. According to Dr Mathieu's understanding of Bates (Mathieu I para 43, definitions of technical terms inserted taken from Macmillan Dictionary of Anthropology):
The symbiosis between marriage and initiation among the Karratjibbin corresponded to a territorial pattern. The kinship system being patrilineal [descent traced through the male line] and patrilocal [establishment of a couple's residence with or near the husband's family], a person's birth estate would correspond to their father's estate and fall outside of their mother's. In Section Two and Three, we shall see that the birth places associated with the Claimants' predecessors conform to the territorial patterns in place among the Karratjibbin (discussed in Sections Two and Three).
Thus, much depends on the pattern said to have been disclosed by the birthplaces of Johnny, KB and her children and the fathers of each of those persons.
777 Dr Mathieu summarises the rights and interests that arise as follows (Mathieu I para 44):
… The birth estate, the totemic country is also an economic territory since it gives a man incontestable rights to water and hunting: in his estate, a man can walk and hunt without seeking permission because he is among consanguinal relatives. Meanwhile, initiation may grant a man a significant ritual territory in his wife's estate as well as economic rights and obligations. Finally, men and women have both ceremonial as well as hunting and gathering rights at tribal ceremonial sites because performing ceremonies also involves feeding. Hence, within the tribal territory, ritual tenure always has an economic dimension.
778 Dr Mathieu later summarises the resulting pattern as follows (Mathieu I para 94, emphasis in original):
The country which Mrs Nudding and Mrs Strickland claim as their own is their father's tribal country because they were raised there and because, for persons of Mrs Nudding and Mrs Strickland's generation, the primary focus of one's identification with the land was with 'father's country'. … Mrs Strickland's father, her paternal aunts, and Mrs Strickland herself were all born in the western region of the Claim Area and they have a traditional attachment to their birth country but Edjudina was not only their great-grandfather Johnny and their grandmother [KB]'s estate, it is where Johnny and his children found refuge from the devastation of the gold rushes at the turn of the twentieth century.
779 And further (at Mathieu I para 402):
In a patrilocal descent system, a family would claim territorial associations across different regions within the tribal territory over two generations. Maduwongga kinship and territorial associations conform to such cultural expectations: [KB] was born at Edjudina and so was her father; her brother Jimmy was possibly born in the region of Karonie, which is also east of the Claim Area; but [KB]'s daughters and her son were born in the western portion of the tribal territory, in the region of Menzies, Kalgoorlie and Kanowna - which we may presume corresponded to [KB]'s Aboriginal husband(s?)'s [sic] estate. Certainly this region encompasses Jacky's estate as detailed by Tregurtha. Jean Walker was also born at the opposite compass point of her mother's own birthplace. At any rate, all the people identified as Maduwongga in Tindale's genealogies were associated to the whole of the Claim Area by birthplace and residence.
780 Dr Mathieu describes this system as it would have worked in action as follows (Mathieu I paras 535-536):
If Maduwongga history had not been catastrophically interrupted, Violet and Arthur's children would have inherited the following rights to their tribal territory: Arthur's daughters would have claimed their birth estates in the western region of the Claim Area and they would have married husbands from another region, as for example, in Edjudina, Pinjin. In turn, their children would have claimed their birth estates in their fathers' estates, and married back into the western region. Violet's son and his descendants would have claimed their birth estates in the western region and married women from the eastern region. Her daughter would have married into the eastern region and her children would have claimed their own estates in their respective fathers' districts. Hence, Johnny's descendants along with their co-tribesmen, in other words, they and all the other persons making up the four living generations of individuals who could be expected to constitute the Maduwongga tribe at any given time of history would have had rights over the entire Claim Area. But these reciprocal territorial patterns ended with the devastating loss of life that followed the Kalgoorlie gold rushes, and today, the four living generations of Claimants who make up the Maduwongga people have Native Title rights over their traditional tribal territory on the basis of ambilineal filiation and ancestral claims.
And here again, there has been adaptation rather than rupture. Indeed, even though the Maduwongga can no longer marry within their tribe, they have retained the principles which traditionally defined in-law relationships. Mrs Strickland never addresses her brother-in-law directly. Funeral rites are conducted according to the rules of avoidance and duties pertaining to in-laws. And Mrs Nudding and Mrs Strickland's relatives abide by the age-old custom of compensating in-laws when hunting or foraging on their traditional lands. When their sons-in-law hunt in Maduwongga country, they always provide their mothers-in-law with the customary part of the animal. They will always bring them firewood or perform a service when they collect wood from the bush. In turn, when the Maduwongga hunt or gather in their in-laws' country, they always hand over some meat or bush product to the traditional owners.
781 As has been seen, though, the adapted laws and customs with respect to marriage that Dr Mathieu describes were not the subject of evidence from Mrs Nudding, Mrs Strickland or their relatives. And while the assertion now made by Mrs Nudding and Mrs Strickland that inheritance comes from descent is consistent with the 'ambilineal' adaptation described by Dr Mathieu, the breadth of both concepts means that no significance can be placed on that consistency. Also, some of the other factual matters mentioned in the above passage have not been established by evidence, for example Violet Quinn's birthplace.
782 Dr Mathieu also seeks to support this system by saying that Arthur Newland 'had primary ritual rights in the western region of Maduwongga country' (Mathieu II para 170). It is not clear where Dr Mathieu gets this idea. The idea that Arthur Newland acquired rights in the west of the Maduwongga claim area, where he was born, is not consistent with Mrs Nudding's and Mrs Strickland's own evidence, which clearly identifies country in the eastern part of the Maduwongga claim area as their father's country: see [464]-[466], [468], [484]. While that evidence may reflect the move to ambilineal descent that Dr Mathieu mentions, it is hard to see how it can then support the idea that there was a patrilocal estate system observed by the Maduwongga before that time.
783 Dr Mathieu further summarises the way this system works in her second report as follows (Mathieu II paras 123-124, citations removed):
Here, as in the Desert, men take wives outside of their birth district, women marry outside of their father's district, and people marry types of cousins who may be actual or classificatory relatives. But Bates' data show that the people between Edjudina, Coolgardie and Canegrass, and those between Southern Cross and Mount Jackson married married [sic] closed-by [sic]. Tindale's genealogies show that marriages and birth places are overall in line with the genealogies, marriages and birth places which Bates documented for Kalamaia country and for the country between Edjudina and Coolgardie.
Whereas in the Desert, inter-dialectal marriages and ceremonial exchanges extend a man's territory beyond contiguous countries over a very large territory, in Maduwongga country, most marriages took place in the restricted space obtained from the aggregation of estate owners. This type of socio-territorial organisation is a nestling structure: a man's personal country may overlap or be contained in his grandfather's or father's country and brothers' personal countries but it is contiguous to his wife's, mother's, and grandmother's countries. Like all forms of exchange, marriage is an expression of reciprocity. Across several generations, marriage exchanges between contiguous territories cement linguistic and territorial ties and the descent system. …
784 This is the closed 'connubial' model that has been mentioned. Under it, Maduwongga people married other Maduwongga people whose estates were adjoining to their own, resulting in a closed system of territorial exchange.
785 One immediate difficulty with all this is that only Johnny and Arthur Newland can be identified as Aboriginal men who fathered other members of the Maduwongga group. How this asserted system works when a person's father is a white man was not explained. Dr Mathieu acknowledges that Eva Quinn, Violet Quinn and Arthur Newland had white fathers but in her reports she does not confront how that might impact a patrilocal descent model of acquisition of rights. She merely resorts to the observation that all three of KB's children were born in the western part of the claim areas, outside their mother's estate around Edjudina.
786 When Dr Mathieu was cross examined on the significance of the fact that the fathers of KB's children were white men, she merely asserted that the children still acquired rights to an 'estate' based simply on where they were born (something not corroborated by the lay evidence described above). Dr Mathieu asserted that 'the white father doesn't count' and appeared to rely on an unexplained and unsupported idea that the children also had a 'tribal father' or an 'Aboriginal father'. But the evidence on which she based that, and how it is consistent with the model of acquiring an estate through paternal descent, was not revealed. There is not, for example, evidence identifying a particular tribal father for any of Eva, Violet and Arthur, or even that they had a tribal father at all. Nor does Dr Mathieu consider any other possible explanations for why that generation, KB's children, were born where they were, such as the economic attractions of towns in the western part of the Maduwongga claim area, or any number of reasons personal to the individuals in question. Elsewhere, Dr Mathieu acknowledges the impact of white settlement on the movements of 'the Maduwongga'. She acknowledged in her cross examination that she had not been able to 'reconstruct the system. I haven't had time. I've only seen markers of a system and I can identify a system there but I cannot be certain of how the system worked' (ts 607).
787 Another difficulty with the quote is that these ideas about acquisition of country by marriage, specifically, are not borne out by any particular evidence. We do not know anything about either Johnny's or Arthur Newland's wife or wives (other than the attribution of Edjudina to KB's mother) other than the fact that Arthur Newland's wives were Walyen.
788 Apart from these difficulties, some data points in Tindale's genealogies do not support Dr Mathieu's hypothesis that the system Bates identified among the Karratjibbin also prevailed among the Maduwongga. For example, in Mathieu II, Dr Mathieu says (at paras 167-168, citations omitted):
Johnny held primary rights to the district of Edjudina. His daughter, KB was born in her father's district, according to cultural ideals. Giving birth, however, is not an exact science and her brother Jimmy was born either in Karonie or in Coolgardie. From this information, we can only guess that either KB did not remember where her brother was born or that Tindale was not sure what he heard, or that he wrote the information after the interview and he could not remember what he was told exactly. At any rate, both areas are connected to ceremonial regions and this may explain why Jimmy was not born in his father's district.
Tindale did not write down where Minnie was born because he tended to pay attention to the information concerning men rather than women. At any rate, KB held rights to Edjudina.
Coolgardie is in on the western edge of the Maduwongga claim area, Karonie is outside it, beyond the south eastern border. Further, the association of Jimmy with Karonie and Coolgardie comes from Tindale's genealogy sheet 110 and so does not necessarily indicate his birthplace. More broadly, the need to 'guess' here invokes speculation.
789 Dr Mathieu was also cross examined on the allegedly closed nature of the Maduwongga marriage system by reference to the following passage from Bates's The Native Tribes of Western Australia (p 102):
Natives of all districts have certain roads along which they may travel and in the camps of which they may obtain wives or husbands, as the case may be. For instance, the road by which some Eastern Goldfields district natives travelled for their wives was through Edjudina, Kurnalpi, Kurrawang, Kanowna, Kalgoorlie, Coolgardie etc. and they also intermarried with the Beerungoomat and Jooamat, west and south of Coolgardie.
790 It was, effectively, put to Dr Mathieu that Bates described the marriage road, which Dr Mathieu used as a basis of her connubial model, not as a closed system but one in which the people on that marriage road intermarried with people from neighbouring groups. Dr Mathieu did not appear to disagree with that proposition, although she did assert that Tindale (not Bates) showed that there is 'always … a certain ratio of intermarriage' and Tindale 'was talking 85 per cent endogamy' (ts 694). Where this comes from is not clear and whether the resulting '15 per cent exogamy' is consistent with a closed system is unexamined. Later, Dr Mathieu expressed the opinion that intermarriage was consistent with a closed marriage system because all it shows was that people were establishing relationships by way of equating kinship terminology between the different 'systems' (ts 697).
791 In Morton II, filed after Mathieu II, Dr Morton does not engage in great detail with Dr Mathieu's model of how marriages worked in the Maduwongga claim area. But he does refer to Dr Mathieu's opinion, quoted at [783] above, that 'in Maduwongga country, most marriages took place in the restricted space obtained from the aggregation of estate owners'. Dr Morton's view about this was (Morton II para 102):
Since we have no significant statistics for what Dr Mathieu calls 'Maduwongga country', this generalisation and comparison is not actually based on concrete data - it is in the main inferred from Tindale's data from elsewhere, in spite of broad references to some of Tindale's genealogies and some of those compiled by Bates, at [123] [of Mathieu II]. In my opinion, there are insufficient data available in the record to properly compare marriage patterns between the Maduwongga claim area 'at sovereignty' and the (rest of the) Western Desert.
792 In her supplementary report of October 2020, that is, Mathieu III, Dr Mathieu responds to that opinion, and in the course of so doing makes the following methodological claim (at para 134):
The reconstruction of the history of people without writing or institutional records of their own requires the ethnohistorian to cast a wide net and consider all possible source materials precisely because one is highly unlikely to have statistical documentation at hand. But in actual fact, the reconstruction of the kinship organisation of WAD 186/2017 at sovereignty does not depend on proving the high frequency of marriage patterns so much as on the recovery and the identification of specific social markers. As things are, there is sufficient historical, geographical and linguistic information to make a plausible reconstruction.
The difficulty with this is that it is not enough for the purposes of the Court that the reconstruction is 'plausible'. And while it could be unfair to put too much emphasis on the word 'reconstruct', had it been used in isolation, it was instead a frequent self-description in Dr Mathieu's evidence. Consistently with that, in the concurrent expert evidence session Dr Mathieu said that in ethnohistorical work it was necessary to 'triangulate at least your information and find supporting evidence' (ts 447). The overall impression is that Dr Mathieu was looking for a system, and was not taking into account the possibilities that there might not have been one, or that it was the Western Desert system, or that its contents have been lost to time.
793 After that methodological claim, Mathieu III then runs through a number of matters which she considers support her 'reconstruction'. This is the fullest articulation of the basis of the marriage system that governs the acquisition of rights and interests in relation to land, and it is necessary to step through it in detail.
794 First, Dr Mathieu mentions the 'territorial constraints of the marriage system' which she appears to discern in the marriage line between Edjudina and Coolgardie described by Bates: Mathieu III para 135 and see [762] above. Then, she says '[w]e can observe these territorial patterns of marriage exchanges in Bates' genealogy of an Edjudina woman and a Kalgoorlie man, in Noonye's relatives at Canegrass, in Tindale's Wanggai genealogy 113, and genealogy 110' (Mathieu III para 136). The source of the reference to Bates's genealogy is unclear. Noonye is someone who, according to a brief mention in Mathieu II (para 162), is shown on notes Bates took at Canegrass to have had 'relatives' in Canegrass and who is said to be 'the daughter of Edjudina mother and Kalgoorlie father who have no class system in Bates' genealogy'. Again, the notes were not in evidence. Tindale's genealogy sheet 113 was in evidence and is described below at [802]. Genealogy sheet 110 has of course already been described; what it appears to show, to Dr Mathieu's mind, is that KB was born in her father's 'birth estate' at Edjudina and that Arthur was born outside his mother's 'birth estate', at Kanowna. In other words this is the asserted pattern of birth places already described above.
795 The next collection of matters Dr Mathieu enlists is 'the territorial patterns associated with birthplaces in Maduwongga country in the genealogies collected by Bates, and in Tindale's genealogies 110, 113, 67, and 147' (Mathieu III para 137). Genealogy sheet 67 is the genealogy that shows Jean Walker and Mary and gives the attribution 'Maduwoŋga' to them (see [175]-[178] above). It attributes 'Kalgoorlie district' to Mary and possibly Menzies and Kalgoorlie to Jean but that is hard to tell from the reproduction of the genealogy sheet in Morton II, which is the only place where it is in evidence. Similarly, genealogy sheets 113 and 147 attribute different places to certain people, but who the people on those sheets are, and what connection they have to the Maduwongga, is unexplained. There is also the general difficulty to which I have already alluded that place names attributed to people on these sheets are not necessarily birthplaces. And, as said in Section VII, there is no real basis to say that Mary and Jean Walker were Maduwongga people.
796 Dr Mathieu then says, 'We can deduce the location of potential estates from the information given to Tregurtha by Jacky in the 1890s (Tregurtha, 1996), the birth patterns of KB's children, Bates' marriage road, and the genealogies collected by Bates' (Mathieu III para 138). Apart from the reference to Tregurtha, this repeats the matters already mentioned. As for Tregurtha, the information given to him by Jacky (concerning the extent of his country: see above [409(2)]) was not specifically about his estate. At Mathieu I paras 199-201, Dr Mathieu is only able to infer that it was about his estate because she assumes that there is a division between the respective estates of a man and his wife. Dr Mathieu thus enlists an assumption about relevant laws in order to establish its own correctness.
797 Dr Mathieu then says that Bates wrote that among the people of Edjudina-Coolgardie, the marriage classes corresponded to water holes. Again, the source of this in Bates's notes is not in evidence. As will be seen, this is crucial to Dr Mathieu's reasoning on the central question of the existence and content of a Maduwongga normative system, so the absence of any evidence of what Bates actually said in this regard is a significant gap. Yet for Dr Mathieu, this 'certainly implies a system of marriage exchange primarily based in territorial exogamy' (Mathieu III para 139, emphasis in original).
Consideration of Dr Mathieu's view as to territorial associations of marriage
798 Pausing to consider all that material referred to, it appears that Dr Mathieu considers that it shows that people in the region, who are not necessarily identified with KB or any other ancestors of the Maduwongga claim group, followed rules about the geographical locations of whom they could marry, and about the transmission of rights and interests in relation to those locations. The locations corresponded to water holes or rock holes. The outcome of those rules was that children were born on, and inherited rights to, their father's estates, which were in a different part of the tribal territory to their mother's estates (territorial exogamy).
799 Dr Mathieu also says that this means that '[o]ver four generations, marriages between estate holders give individuals access to the entire aggregate territory, through their own birth and paternal districts, and through their wives, mother's, and grand-mother's districts and their siblings since paternal uncles and maternal aunts are also considered father and mother' (Mathieu II para 126).
800 There are at least three difficulties with what Dr Mathieu seeks to make of this. First, to deduce a closed system of territorial exchange based on birth estates, it is necessary first to accept that the places attributed to people on the genealogy sheets are birthplaces, something which, for reasons already given has not been established. Second, the facts on which Dr Mathieu bases her inferences are not apparent from the primary material, chiefly Bates's and Tindale's notes, either because it does not appear in that material when examined or because the material is not in evidence. Third, and fundamentally, this sparse information about how a small number of people married or where they (possibly) were born does not support the superstructure Dr Mathieu seeks to build on it, namely a normative system of marriage and kinship through which interests in relation to land and waters are acquired. The point about insufficient data that Dr Morton makes in Morton II is well made. And, even if the data were more plentiful, it would be necessary to grapple with another point mentioned above, that observing a pattern of behaviour does not necessarily entail a normative system which requires that behaviour: Ngarla, see above at [87]. Dr Mathieu's opinion does not do this.
Views of the experts as to dynamism of kinship systems
801 Returning then to the reasoning in Mathieu III, Dr Mathieu then embarks on a critical examination of Dr Morton's conclusion at Morton II para 54 that the section system was moving south, and was around Kalgoorlie meeting the different endogamous moiety system which Bates found among the Karratjibbin (see [718] above). Dr Mathieu's criticism of this opinion commences with an examination of some nine 'pedigrees' (that is apparently Bates's term for genealogies) and notes gathered by Bates, which, Dr Mathieu says, show that various section and moiety rules were observed in the Maduwongga claim area at around 1910, as well as genealogy sheets Tindale took in 1939. At trial this paragraph was replaced with a somewhat more detailed description of the genealogies.
802 Once again, for the most part the sources from Bates on which Dr Mathieu relies were not in evidence so it is not possible to judge whether Dr Mathieu's descriptions of what they mean are soundly based. Where they are in evidence, such as Tindale's genealogy sheet 113 pertaining to a Kalgoorlie man called Bob Manakadji, it is not possible to discern how Dr Mathieu derives what she does from it, in this case that neither Mr Manakadji nor his parents have sections. There is simply no mention of sections on the genealogy sheet, and no basis put forward as to why this would mean that Mr Manakadji and his parents did not have sections. It is true that some of the genealogy sheets in evidence include section names, but that does not permit an inference that all other persons lacked sections, and in the case of Tindale, no other basis for such a conclusion was put forward.
803 In any event, Dr Mathieu's descriptions demonstrate a bewildering array of possible rules and kinship structures which were observed, or not observed, from time to time. It is not necessary to reproduce them. It is, though, illustrative of Dr Mathieu's approach in general that she goes on to characterise Tindale as having reached 'conclusions' apparently expressed on genealogy sheet 110 that 'the four-class system stopped on the eastern side of Edjudina Range' (Mathieu III para 145). This can only be a reference to Tindale's notation of what KB told him, already considered but reproduced here again for convenience:
N. 2146 In my country no 4 class system; 'a man from Laverton picked out Taroro for me by looking at my face; there is no law like that in my country' - apparently[?] no tjukur either is known to [KB] Later In light of information at Mt Margaret this is the zone of transition from 4 to no class
This is not a 'conclusion' and it does not say that the four class system stopped on the eastern side of the Edjudina Range. It is a note that Tindale took in the course of his field work which suggests that an unspecified area which may include Laverton is a zone of transition. This is illustrative of Dr Mathieu's tendency to take firm conclusions from primary data that are less than firm.
804 More broadly, the tenor of this part of Dr Mathieu's third report is that Bates found a variety of different kinds of marriage relationships in the Coolgardie-Edjudina area. It is hard to see how this either falsifies Dr Morton's view that two different systems were coming into contact in this area or supports Dr Mathieu's derivation of a distinct and coherent normative system within that confusion of different relationships.
Dr Mathieu's consideration of Canegrass vocabulary
805 Dr Mathieu then turns her attention to a vocabulary list which Bates collected at Canegrass, which is within the Maduwongga claim area, over 50 km south of Menzies and almost 25 km northeast of Ora Banda. The list was collected from a person called Nyeerbeejee, who was the niece of Jurdain, a man whose birth district was, according to Dr Mathieu, at Edjudina, who was also an informant of Bates. For Dr Mathieu, this word list 'adds a crucial element to the discussion of laws and customs at WAD 186/2017 at sovereignty' (that is, in the Maduwongga claim area) (Mathieu III para 146).
806 Agreeing with Dr Morton, Dr Mathieu connects the language at Canegrass with the language spoken by Dora Cotterill's mother, Lilly McDonald, who (somewhat inconsistently with the evidence of Mrs Nudding and Mrs Strickland), Dr Mathieu says had ties to Edjudina. That is, the vocabulary reflects the same language (which Dr Morton quotes the linguist Dr Clendon as describing as 'squarely of the Western Desert type' (Morton II para 57). The vocabulary lists, she says, 'provide precious information on kinship terminology, which in turns [sic] provides invaluable insights into social organisation' (Mathieu III para 147).
807 Dr Mathieu sought to represent that kinship terminology by condensing the relevant terms from the Canegrass vocabulary into a table to accompany the equivalent terms in vocabularies taken from other places. Another table presented a simplified colour coded version of the information. One version of those tables was attached to Mathieu III but at the hearing an amended version was accepted into evidence as Exhibit 22B. Those two tables are reproduced at Annexure E to these reasons.
808 It is necessary to set out Dr Mathieu's description of the kinship terms in Mathieu III, and what she draws from them in full, as it is impossible to summarise or paraphrase. Before doing so, however, it will be helpful to explain a key concept employed by Dr Mathieu, namely that of the cross-cousin. In Mathieu I, she outlines the concept and the cognate concept of parallel cousins by describing (para 112): 'a division between parallel (Mother's Sister's children/Father's Brother's children) and cross-cousins (Mother's Brother's children, Father's Sister's children)'. A cross-cousin marriage prescription is thus one which requires a male, for example, to marry his mother's brother's daughter or his father's mother's daughter, because the daughter's parent is a different gender to their sibling who is his parent. Under this prescription or at least its cognate proscription, parallel cousins (whose relevant parents are siblings of the same gender) cannot marry.
809 Dr Mathieu's discussion of the Canegrass kinship terminology in Mathieu III, paras 148-159, is as follows (emphasis in original, definition inserted from the Macmillan Dictionary of Anthropology):
148. Two particularities identify the kinship terminology collected at Canegrass.
1) The terminology equates Daughter-in-law, Sister-in-Law and Grandmother.
2) There is a specific term for niece ngaree which is different from daughter-in-law kammina which is also the term for Sister-in-Law and Grandmother. Hence, a distinction is made here between a niece who is not a daughter-in-law and a niece who is a daughter-in-law. This terminology is consistent with an asymmetric marriage system prescribing that a man can marry only one type of cross-cousin: either a maternal or a paternal cousin.
Reviewing the kinship terms at Canegrass
149. brother-in-law = GF
sister-in-law = GM
This is consistent with a generational endogamous moiety system.
150. son-in-law = nephew
father-in-law = uncle
This is consistent with cross-cousin marriage, which Bates found was quasi-universal in the southwest of WA and the Goldfields. Cross-cousin marriage is also a rule of Desert kinship.
151. daughter-in-law =sister-in-law = GM
This equation shows that there is more to the terminology than moiety endogamy. The equation above is consistent with a principle of matrifiliation [filiation: social recognition of relationships between parents and children, or otherwise descent] as it equates three generations. It is also consistent with an exogamous moiety system.
152. Son-in-Law≠ Brother-in-Law = GF
This is an intriguing lack of parallel with the equation above. Here, the terminology is consistent with the endogamous moiety system and not with an exogamous moiety system.
153. Niece≠ Daughter-in-Law=Sister-in-Law=GM
This equation is consistent with a matrilateral cross-cousin marriage prescription in which women circulate in one direction between several groups.
154. Canegrass terminology marks the ubiquitous cross-cousin marriage since it equates: Father-in-Law with Uncle, Nephew and Son-in-law, and it also equates Aunt and Mother-in-Law. But the terminology also suggests a more complex pattern of exchange because a 'niece' is not necessarily a 'daughter-in-law' whilst a 'daughter-in-law' is also a 'sister-in-law' and a 'grandmother'.
155. Where males are concerned, the terminology is consistent with an endogamous moiety system since boys marry into the same category as their grandparents. This may well explain why in two of Bates' genealogies, people are treating their section membership as an endogamous category rather than as an incest boundary. However, where females are concerned, the terminology is more in line with an exogamous moiety system, which could explain why in one of Bates' genealogies, a man marries a woman of the same section as his mother. Evidently, there is a contradiction here and the moiety system cannot suffice to make sense of the kinship terminology.
156. Of course, there has to be an added level of complexity because all marriages must involve territorial exogamy: A man and a woman must not only marry into a particular 'class', they must also marry out of their 'estate'. In turn, this prescription is layered by yet another level of complexity to do with 'estate' filiation - does the 'estate' system abide by the rules of patrifiliation (Western Desert), ambifiliation (Yilgarn), or matrifiliation?
Analysis
157. From a man's perspective, an endogamous moiety system equates Sister-in-Law [=wife's generation] = Grandmother and Brother-in-law [wife's generation] = Grandfather but it does not equate my son's wife with my brother-in-law's wife, which Daughter-in-Law=Sister-in-Law=Grandmother does. An exogamous moiety system would allow men to take women from a matrifiliated group but an exogamous moiety system also implies a system of reciprocal marriage exchange between two groups, and one could thus expect kinship terminology to apply in mirror image to matrilateral and patrilateral relatives. Canegrass kinship terminology does not do this. The equation Daughter-in-Law=Sister-in-Law= Grandmother is consistent with a system of filiation but Son-in-Law≠ Brother-in-Law=GF is not. Whereas my daughter-in-law and my wife's brother's wife form, to use Bates' word 'one stock', my son-in-law is not of the same 'stock' as my wife's brother. In other words, my son marries a woman from his mother's brother group, but my daughter marries into another group.
158. The terminology: Kammina=Daughter-in-Law=Sister-in-Law=Grandmother makes very good sense if we consider that Kammina corresponds to a place rather than to a non-localised kinship class - which is to say, if we heed Bates' words that between Edjudina and Coolgardie, the marriage classes go with the waterholes. Therefore, from a male ego, the women in my group come from one place - a place attached to my wife's brothers (brothers-in-law), their wives (my sisters-in-law) and their daughters (my daughters-in-law). Thus, I call my wife' [sic] brother's daughter 'daughter-in-law' and I call my sister's daughter 'niece' (she is not a daughter-in-law since she marries into another group). My sister's son, my nephew, I call son-in-law because my daughter marries into his estate. The principle can also be explained in this way: my son takes a wife from the same place as I took my wife, but my daughter marries into another place. Men marry MB's daughters, women marry FZ's sons. The marriage system between Edjudina and Canegrass is asymmetric. Women move along the marriage road in one direction, and men in the other. This Canegrass feature is distinctive because all the people surrounding the Maduwongga have a marriage system with reciprocal exchanges. As Bates documented, Karratjibbin exchanged wives and boys between Mt Jackson and Southern Cross, and between Norseman and Karratjibbin. The Desert section system is a reciprocal exchange system, hence, Desert terminology equates MBD = FZD = MBS = FZS.
159. Canegrass kinship terminology preempts Tindale's findings that the skin group system did not extend beyond Waljen country. Above all, the kinship terminology is consistent with a marriage system with a core concern for territorial exchange. As Bates wrote, the marriage classes correspond to waterholes, which is to say that the marriage classes correspond to a constellation of sites attached to particular estates. Sons and daughters inherit the estate and women move along the marriage road where men seek their wives (Bates, folios 8 and 12). Furthermore, according to Mark Clendon, the kinship terms recorded not only at Canegrass but in the regions east of Edjudina Range also show important connection to Wajjari which is a non-WDL (Clendon, 1998).
810 This is impenetrable. In order to comprehend it, it is necessary to deploy factual assumptions or assumed knowledge and technical anthropological concepts which are not explained or justified, or even expressed, anywhere in Dr Mathieu's reports. Nor has the Maduwongga applicant made any attempt to articulate the assumptions or explain the reasoning in its submissions; rather, those submissions merely put propositions and support them by numerous footnotes to Dr Mathieu's reports and other sources. In view of that, it is not necessary or appropriate to engage with Dr Mathieu's reasoning here at the level of detail reflected in the above quote. It is, however, possible to make some general observations about why I place no weight on it.
811 First is the impenetrability I have mentioned. Perhaps an anthropologist who specialises in kinship structures could follow it and could see the patterns Dr Mathieu appears to discern and could grasp their significance. But it is elementary that the function of an expert witness is to give the benefit of that expertise to the Court; the Court cannot be expected to have that expertise for itself. It was or should have been Dr Mathieu's role as expert witness to explain to the Court the patterns she discerns and their significance: see Booth v State of Victoria (No 3) [2020] FCA 1143 at [38] (Mortimer J). She has not.
812 An example of the assumptions inherent in the passage is found in the statement at paragraph 148(2) that the existence of a term for niece on the one hand and a different term for daughter-in-law, sister-in-law and grandmother means that a distinction is made between a niece who is not a daughter-in-law and a niece who is a daughter-in-law. Taken by itself, that simply does not follow. One missing assumption appears to be something along the lines that some cross-cousins of a man (nieces of the man's parents) are marriageable and so can become daughters in law, and some are not. That assumption may be identified from the distinction between maternal cross-cousin marriage and paternal cross-cousin marriage in the next sentence. But nowhere is this articulated, explained or justified. Dr Mathieu has not exposed her reasoning, so it is difficult, if not impossible at points, for the Court to assess it.
813 Second is the unreliability of the linguistic data on which the whole edifice is founded. This emerges from evidence as to how Bates obtained the Canegrass vocabulary (along with other vocabularies, which appear in a table Dr Mathieu prepared which is addressed below). In cross examination, Dr Mathieu accepted the following description of Bates's methods given by counsel for the State (ts 597):
… the practical way in which they were obtained was that Daisy Bates put together a leaflet, if you like, or a blank document with a whole range of English words on, and they were then posted to many corners of Western Australia.
About 500 of them were posted out, and they were sent to police stations, magistrates, property owners and pastoralists, those sorts of people. So they were sent to non-Aboriginal people with some prominence in each district with a request that that person find local Aboriginal people and ask them for these words.
Dr Mathieu and the cross examiner agreed that occasionally Bates collected vocabularies herself.
814 Also introduced in cross examination was an extract from an article by a linguist called Nick Thieberger (Nick Thieberger, 'Daisy Bates in the Digital World' in Peter K Austin, Harold Koch and Jane Simpson (eds), Language, Land & Song: Studies in Honour of Luise Hercus (EL Publishing, 2016)) which (quoting another source) said (at p 107) that the responses to the questionnaire leaflets 'were "of mixed quality and often unreliable as to the original location of the Aboriginal people questioned"'. In Dr Thieberger's view, the questionnaire:
was clearly devised before Bates had had much experience of Aboriginal languages. Terms like 'aunt', 'brother/sister', 'grandfather/ mother', and 'nephew/niece' have multiple possible referents. For example, aunt may refer to 'father's sister' but perhaps not to 'mother's sister' (which often is the same term as 'mother'). Sibling terms may relate to seniority and not have gender characteristics.
815 Dr Mathieu accepted that Bates's use of kinship terms was problematic but asserted that there was 'consistency still in the system, and so those kin terms are valid'. She appeared to assert that individual kin terms could be given specific referents because, for example, 'mother's sister' must be the same term as 'mother' (ts 599-600).
816 I will return to the weight that Dr Mathieu places on 'consistency' shortly, but I am not persuaded that the problem can be dismissed that easily. Rather, it appears to be fundamental to the use that can be made of these vocabularies. An example of the pamphlets used to collect the data was in evidence (this one completed by John G Dodd of the police station at Kookynie). Under a heading 'Man, his relationships, etc.' it contained a list of English words that included the following kinship terms: brother, brother-in-law, daughter, daughter-in-law, father, father-in-law, granddaughter, grandfather, grandmother, grandson, husband, mother, mother-in-law, nephew, niece, sister, sister-in-law, son, son-in-law, uncle, and wife.
817 A moment's reflection shows that several of these English terms contain ambiguities which mean that they could correspond to any number of different terms in a different language. That different terminology could reflect kinship concepts which are configured differently at higher levels of refinement. For example, does grandfather mean father's father, or mother's father, or both? Does 'sister-in-law' refer to the sister of the spouse of the central subject person (ego) or does it refer to ego's sibling's wife? Or does it, as Dr Mathieu assumes in the quote above, refer to ego's wife's brother's wife (see Mathieu III paras 157-158)? There is no word for cousin in the vocabulary at all.
818 The idea that around the first decade in the 1900s a police officer or other white person untrained in anthropology, ethnography or linguistics, and likely possessing little or no Aboriginal vocabulary himself, talking to an Aboriginal person who may in turn have had limited English, could understand his interlocutor with the nuance and precision necessary to support the reasoning Dr Mathieu sets out above is highly implausible. Dr Mathieu essentially accepted this in cross examination when she said (ts 663):
it's a very basic terminology. We can't tell from that that they didn't have other terms. Of course, they must have. You know, you have to distinguish your first cousin from your second cousin, et cetera, so they would have added to this, so these are basic terms which were elicited by people who didn't know probably much of what - you know, they probably didn't know a lot about kinship to start with.
819 While Dr Mathieu draws on her ethnohistorical training to 'triangulate' the data to seek to draw out the refinements that are lacking in the raw material, it is not at all apparent that this method is capable of overcoming the obvious shortcomings of that material. And as I mentioned in Section VI, the fact that Dr Mathieu did not avert to these shortcomings until forced to do so in cross examination impacts on the weight to be given to her evidence generally.
820 Third, the primary data on which Dr Mathieu relies is not in evidence. Despite the great weight that she and the Maduwongga applicant put on the vocabulary apparently collected from Nyeerbeejee at Canegrass, that vocabulary is not in evidence. The same can be said of all the other vocabularies on which Dr Mathieu relies (summarised in a table to which I will come below), save for that collected by John G Dodd.
821 Fourth, the overall path of reasoning is unsound. This is where the notion of consistency comes in. Dr Mathieu gives it a great deal of work to do. The kinship terminology is variously 'consistent with' an asymmetric marriage system, a generational endogamous moiety system (see Dr Morton's explanation of that concept reproduced at [703] above), cross-cousin marriage, 'a principle of matrifiliation', and 'a matrilateral cross-cousin marriage prescription'. Dr Mathieu seeks to extract a single system that is consistent with all of those. But if fragmentary linguistic information of doubtful integrity is consistent with a hypothesis, that does not mean that it proves the hypothesis. It does not establish that the system Dr Mathieu identifies existed in fact. Relatedly, she does not consider possible explanations for the data other than the particular hypothesis she prefers, including problems with the quality of the data or sample bias.
822 Dr Mathieu effectively acknowledged this also in cross examination when she said in relation to the marriage system she had identified, 'I have not been able to reconstruct the system. I haven't had time. I've only seen markers of a system and I can identify a system there but I cannot be certain of how the system worked' (ts 607). She later acknowledged that the deficiencies in the linguistic data mean that all she can say is that the data are compatible with her system. But those appropriate reservations are not reflected in the certainty with which she otherwise put her opinions about the system. Nor are they consistent with the task of the Court to find the existence of facts proved by evidence to be more probable than not.
823 This notion of consistency (albeit expressed differently) founds a particularly important step in the reasoning. The step appears at para 158, where Dr Mathieu says that the apparent equation of daughter-in-law, sister-in-law and grandmother 'makes very good sense' if we consider that the term 'corresponds to a place rather than to a non-localised kinship class - which is to say, if we heed Bates' words that between Edjudina and Coolgardie, the marriage classes go with the waterholes' (para 158, emphasis in original). This step is important because it connects the system of kinship relations to rights and interests in relation to land or waters. What Dr Mathieu is saying is that the distinction between two different marriage 'stocks' ('my son marries a woman from his mother's brother group, but my daughter marries into another group') can be made to mirror the distinction between different territories that are attached to different waterholes. But the mirroring, of a distinction between at least two categories, is found at two different conceptual levels (kinship and territorial) and does not establish anything. I have already doubted the soundness of the territorial aspects of the system that Dr Mathieu identifies. Putting those aspects together with the posited kinship system, and discerning a correspondence between them, does not significantly strengthen either.
824 After the passage I have just examined, Dr Mathieu then goes on to summarise information from Bates and Tindale's genealogies which she has already canvassed and which appears to have been singled out as part of this summary because she says it is consistent with the pattern she sees. At para 160(g) of Mathieu III, Dr Mathieu draws the weak conclusion (emphasis in original):
The marriages and places of birth in Bates and Tindale's genealogical materials do not allow us to reconstruct a regulated circular marriage system between five 'estates' as I will propose below. But it is possible that there existed a consistent pattern prior to the wide scale demographic and cultural disruption brought about by the gold rush. What we can conclude from the facts at hand, meanwhile, is that documented 19th century and early 20th century marriages and birth patterns in the region of WAD 186/2017 are consistent with the restricted system of territorial endogamy posited by Bates' marriage road and the kinship terminology collected at Canegrass.
A conclusion that it is possible that there existed a consistent pattern is no foundation for a finding in a court of law.
The tables of the kinship vocabularies
825 In Mathieu III, Dr Mathieu offered the following 'short commentary' on the tables of kinship terms reproduced in Annexure E:
Table 1 shows both common and distinct aspects of Canegrass and WD kinship terminology and classification. It also shows the significant influence of non-Western Desert language terms in the classification systems of the region at large, from Southern-Cross to Peak Hill and east of Edjudina Range.
Table 1 confirms that each of the regions where Bates collected the vocabulary lists had their own kinship system and classification. In other words, each of these regions had their own laws and customs.
Table 2 shows at a glance the structural and thus jural similarities and differences between the kinship systems at Canegrass and in the other regions. The table shows the ubiquity of the cross-cousin marriage in this part of WA (purple and orange fills). It also shows that the system at Canegrass was not only unique from among neighbouring systems, but antithetical to the systems in place in Laverton and beyond.
826 It is notable that one of the other groups of kinship terms, which Dr Mathieu distinguishes from the one collected at Canegrass, was taken from Coolgardie, a place within the Maduwongga claim area. Dr Mathieu does not explain why she identifies the Canegrass vocabulary in particular as revealing the Maduwongga normative system; Coolgardie is within the 'marriage line' she identifies. She does acknowledge that the kinship terminology collected at Coolgardie 'shows a measure of accommodation to the system implied in the Canegrass terminology' (Mathieu III para 170) but does not explain how this coheres with her system.
827 In its closing submissions the State said that it had great difficulty in interpreting the tables. It said that the legend was unclear, the colours used to fill in cells were generally unexplained and the reason why there were two colours in many cells (one fill, one to highlight a word) was also unexplained. The State also criticised the absence of source material for many of the matters indicated in the table, for example, on what basis certain terms are identified as Kalamaia terms. The State submitted that without the assumptions and reasoning process being made clear, the Court may place little weight on the table or the conclusions expressed by Dr Mathieu in respect of it.
828 The Maduwongga applicant's written closing submissions did not attempt to explain the reasoning reflected in the tables or to articulate how it was supported by the primary data on which she seemed to rely. They merely repeated Dr Mathieu's key conclusions and footnoted them to the relevant passage in Mathieu III or to the transcript of Dr Mathieu's evidence. In oral closing submissions senior counsel for the Maduwongga applicant sought to explain the table by saying that it shows that there were a number of terms in relevant vocabularies that were not Western Desert terms, and this shows different forms of kinship relationships in the areas covered by the vocabularies as distinct from the Western Desert, with similarities between those on the west of the Edjudina Range showing a common and distinctive system in that area. It was not clear how this was consistent with Dr Mathieu's opinion that each of the regions where vocabulary lists were collected had their own laws and customs.
829 In any event, senior counsel was then led to concede that there were still quite a few Western Desert terms in the Canegrass vocabulary, and further to accept that it was hard to derive the connubial structure advocated for by Dr Mathieu from that table. He accepted that what was left was Bates's descriptions and some evidence around that, in particular concerning the concept of marriage lines. While I have not taken this to be an abandonment by the Maduwongga applicant of the significance of the Canegrass vocabulary, and so have examined it here, the exchange with senior counsel I have summarised does tend to confirm that the reasons why it is significant are not apparent to anyone other than Dr Mathieu.
The conclusions that Dr Mathieu draws
830 At para 169 of Mathieu III Dr Mathieu reaches the following key conclusion:
Summing up the details provided by Tindale and Bates in their respective notes, the following picture emerges: among the Ngadju and the people of WAD 186/2017, there existed a kinship system that was not the four-section system of the Western Desert people to the east; not the totemic system of their Noongar neighbours to the south; and not the endogamous moiety system of their Karratjibbin neighbours to the west. In other words, these people had their own laws and customs of marriage and descent.
831 She then appears to support this by referring to a number of matters, some of which she canvassed in previous reports or earlier in Mathieu III, specifically:
(a) Bates's vocabulary list collected at Canegrass;
(b) Bates's discussion of and supposed differentiation between 'the people east and west of Coolgardie' (see [407], [756]-[757] above);
(c) Berndt's categorisation of kinship systems in the southern portion of Western Australia (reflected in the map discussed at [753] above);
(d) the ecological features of the claim area which is said to contain more plentiful resources than the Western Desert which supports the consolidation of territory so that people 'keep their marriages and their lands close-by and relatively closed' (Mathieu III para 172); and
(e) the 'revenge party' story mentioned at [409(4)] above.
832 Somehow, and despite the appropriate reservations she expressed elsewhere, from this Dr Mathieu discerns a 'corporate tenure system' as having been 'clearly evident' in the Maduwongga claim area, presumably near the turn of the 20th century when Bates was gathering her data. She describes it (at Mathieu III para 174) as follows:
The system which I have reconstructed above fits with the general laws of the kinship systems found in Australia: dual division (un-named alternate generations); a territory divided into western and eastern regions and inclusive of exogamous 'waterholes' attached to patrilocal descent groups linked by an asymmetrical and generalised system of reciprocal marriage … [with a] system of territorially contained (perhaps circular) and asymmetric marriage exchange between contiguous estates [which] results in a 'social field' that is both insular and firmly attached to its territorial claims. In this system, estate inheritance is patrilineal and 'tribal country' is established through matrilineal links and the marriage ties.
833 The description of this in oral evidence as a 'connubial model' appeared to distinguish it on the basis of prescriptivity from a more open model of dispersal of kinship relations. At para 175 of Mathieu III, Dr Mathieu describes how it would work in this way:
If the pattern is circular: I am an Edjudina man, my daughters and granddaughters marry men of Kalgoorlie. Their daughters marry men from Kurnalpi, their daughters marry men from Kanowna, and their daughters marry men from Coolgardie (also Canegrass). Finally, the daughters born at Coolgardie marry men of Edjudina. However, it is possible that the system was freer and that women married into barna located at any point along the marriage road: Edjudina, Kalgoorlie, Kurnalpi, Kanowna, Coolgardie. Tindale's and Bates' genealogies would support the latter proposition rather than the former but it may [be] that the patterns of birth in these genealogies bear witness to social disruptions and adaptations in the wake of the gold rush.
In cross examination Dr Mathieu accepted that this model was not articulated until Mathieu III because, she said, 'I wasn't aware of it' (ts 646) or possibly that she 'didn't realise' she needed to articulate the model.
834 But how Dr Mathieu derives this neat, closed system from the data, in particular the Canegrass kinship terminology, is a mystery. In cross examination counsel for the NP respondent tried to elicit this by asking Dr Mathieu to 'just identify for me … in your report in part 7, the relevant bit, where do you set out clearly that I've relied on this source material … Can you do that for me, please?'. Dr Mathieu's response was (ts 665):
No, because it's in the conclusion. Like, it's when I say - because - all right. Because the way I go is that I go from the facts up. I build from the data. I look at the data. I say, okay, what data do we have here about kinship, okay, because kinship is the blueprint of social organisation and it's the key to the land tenure system. What do we have? Three years ago I wrote we have no information on that, because I didn't. I should have been more clever and say I have no information. I actually didn't think that that information was there. It's only when I realised the importance of the Canegrass linguistic materials that I found that information, and I almost did it by accident, because when I looked at this linguistic list I saw that the kinship terminology was really basic and so I didn't think there would be enough in it to be able to make something out of it so I discounted the data because this is how you're supposed to work methodologically. You know there is documentation but you've got no corroborative evidence so you put it to the side and you don't build a story on it because you don't have enough to build a story, you leave it, try to remember you've got it. You come across more data. You go, oh, hang on a minute, I can go back to this and see what that tells me. So I was doing with the vocabulary was simply comparing vocabulary items to see how much vocabulary overlap there was between all of this - between all of these areas. So - - -
835 At that point I intervened to elicit that Dr Mathieu summarised the data at para 160 of Mathieu III with the conclusion already mentioned at para 160(g). But the relationship between the data and that conclusion was and is elusive. The best that can be said is that the system Dr Mathieu posits is 'consistent with' several concepts that are themselves 'consistent with' each of Bates's identification of a 'marriage road' and the Canegrass kinship terminology, and the system is also said to be 'consistent with' various other data points.
Dr Morton's interpretation of the Canegrass vocabulary
836 Dr Morton was critical of Dr Mathieu's interpretation of the data. His evidence in the concurrent expert evidence session was as follows (ts 449):
… I think that the asymmetric marriage system that has been constructed here has been largely constructed out of one particular set of kin terms, which is a set of kin terms that was given to Bates by Nyeerbeejie. They are of interest. They are unusual. My interpretation of them would not be quite in line with Dr Mathieu's. Dr Mathieu has referred to their implication saying something along the lines of they lead to a system of matrilateral cross-cousin marriage. That means that you marry somebody who is a cousin - classified as a cousin on your mother's side. I don't disagree with that, but it is an implication of the system that she is talking about. But the rest, the idea that that leads to this closed connubiam that she's talking about, I disagree with. I don't think there's enough evidence for it. My interpretation of the peculiarities that she found in the terminology is that they are not indicative indeed of a closed system. They are actually indicative of one encroaching system on another, and I'm talking specifically about people from the Western Desert marrying into people who are not Western Desert people further to the south-west.
This is an opinion I've come to just recently, after the Experts Conference. I needed to leave this matter in sort of suspended - in a state of suspension until I looked into it more carefully and more thoroughly, but that is my view now. I don't think there is any evidence. There's a marriage line there that has been reported, but it - and it's the one that Dr Mathieu describes as being between Edjudina and Coolgardie, and they're all kindred. My interpretation of that marriage line is probably that Western Desert people have been moving down in that direction and they have been giving wives to people further away from them. In other words, that they are building relationships with them.
837 A little later Dr Morton sounded the following general note of caution about reliance on a single set of kinship terms (ts 461):
One of the things that has become particularly clear in recent decades with studies based on long-term field work and not on the kinds of short survey type stuff that Bates did or Tindale did, or even Elkin did, is that the kinship terminologies are far, far more complex than those people believed them to be, and that includes the fact that there's rarely one relationship - set of relationship terms. Sometimes there are as many as three different speech registers, so that in one context you might call somebody a brother, and in another context, you would call that person a cousin. … So, there's something in my view that makes a lot of what is happening in this kinship diagram - one should qualify it. One should qualify it in relation to these recent studies that show that use of kin terms is highly situational. There is not just one for a person. You may have several ways of referring to a person in different circumstances. Whether they're ritual or whether they're pertaining to the arrangement of marriage or whether they're just hanging around the camp.
838 And (ts 461-462):
There's a kinship system in Australia that at rock bottom is universal. It's a bilateral cross-cousin marriage model. That is the deep structure of kinship across Australia. There are myriad variations on that theme. They are occurring and those variations are occurring in flux depending on who is marrying who and in which areas they're marrying at any particular time. It's a very, very dynamic system. It's that dynamism that is talked about extensively in the literature these days that I think is really problematic. Particularly problematic with the notion that somehow in this area there is this closed conubiam [sic] that is all by itself without marrying outside its borders, and being a society unto itself except when it has to go, for ritual obligations, somewhere else. It seems to me untenable.
839 Dr Morton's evidence was that he did not know of the connubial model operating anywhere.
Skewing in the Canegrass vocabulary
840 Dr Morton characterised the phenomenon Dr Mathieu highlighted in the paragraphs quoted at [809] above as an example of what is known in the anthropological literature as 'skewing', which involves classifying a person as a relative at a different generational moiety level from their actual generation so as to prevent marriage with them. He gave as an example calling one's cousin an uncle. That is an example of vertical skewing, which operates between generations. Dr Morton also gave examples of horizontal skewing which can involve classifying a cross-cousin, who might be marriageable, into a sibling, who would not be. This has been referred to as 'cutting them out' (ts 703-704)
841 Skewing is an overlay on a kinship system rather than a long term structural feature, although Dr Morton acknowledged that it can become the latter if it is employed over the long term (citing Patrick McConvell, 'Omaha Skewing in Australia: Overlays, Dynamism, and Change' in Thomas R Trautman and Peter M Whiteley (eds), Crow-Omaha: New Light on a Classic Problem of Kinship Analysis (University of Arizona Press, 2012) and Professor Laurent Dousset, '"Horizontal" and "Vertical" Skewing: Similar Objectives, Two Solutions?' in the same volume). It is a pragmatic approach which can result in marriage, and so kinship and acquisition of rights in land, being pushed in another direction, as Dr Morton put it, or 'making sure that you go further afield' (ts 704). He said that in Australia this phenomenon was 'generally found on the fringes of areas where people are expanding and moving in towards a certain area' and therefore wish to modify the direction in which marriage relationships would otherwise go. This, he said is 'indicative of a certain dynamism that's going on, for sure, and it turns out that of course my interpretation is the polar opposite of the idea that this is a closed unit' (ts 450).
842 As has been said, Dr Morton's view, after examining the genealogies on which Dr Mathieu relied, was that they involved skewing that represented a movement of Western Desert families towards the south west by 'giving them women' (ts 714). This was not inconsistent with Western Desert people meeting another language group 'and trying to get interests in that better watered country, which is the salmon gums country rather than the mulga country at Edjudina, in order to get rights and interests for your children there' (ts 715).
843 Dr Mathieu responded to Dr Morton's view that the particular terminologies were examples of skewing in the concurrent expert evidence session by reference to her tables of word lists. Her response was long and there would be little use in setting it out in full. It did not, with respect, illuminate the subject further than Mathieu III. Illustrative excerpts are as follows (ts 450-452):
The first thing to notice is the name given to men. In Canegrass the man is yilda, in Peake Hill it's yilda. In Norseman it's Marlpa, the rest is Kabboon and then we've got Puntu. Puntu of course is also noted by Tindale's Waljen informant. Puntu was the name of initiated men beyond - in Linden and Laverton before wati law took over and the people from Warburton who were wati and people from - yes, the central area who were wati took over. So even mythological tracks like wati kutharra are referred by that man as Puntu kutharra to men. Puntu. Today in this part of the world Puntu means a boy, not an initiated man. So the first thing to notice there is that these people are actually tied to different laws in different parts of Western Australia and the desert.
…
Then if you look at a niece. Your daughter-in-law is always a niece. Okay, and it's always your - if you're a man, we do it from a man's point of view, it's always your father's sister - it's always - sorry - it's always your sister's daughter if you're a man or it can - from a man's - your mother's brother's daughter or your father's sister's daughter. Okay. It cannot be your father's daughter or your mother's sister's daughter. That would be parallel cousins. That's a no, no. They are considered siblings.
…
So what you're seeing there is one niece is not a daughter-in-law and one niece is a daughter-in-law. So that means that from a man's point of view, if I marry my mother's brother's daughter, my maternal uncle's daughter, or I marry my paternal aunt's daughter, but from my father's point of view only one of his nieces is called a daughter-in-law because I can only marry in one direction.
…
So how you organise your relatives shows who can marry and who you will not marry, and if you look at the desert systems, here it's not particularly obvious but do you see the East Laverton, the Puntu sections, do you see how it's not given there? I put a question mark there - it shouldn't be there because I had an idea and I put a question mark. Sorry about that. It's not given because it's probably the same term. Okay. That's because essentially marriage in the desert is bilateral. It's asymmetric in the sense that as a man you marry a woman from group A and that woman is not where from [sic] your mother came from. Your mother came from group B, you're going to marry a woman from group A and you [sic] going to give your sister to a man in group C.
…
But that system that you see at Canegrass is better understood … The marriage classes are at the rockholes where a man would take a woman from the same place as his mother came from. Now, I'm not saying that this is the only place he can take a mother, but he's allowed to take a mother - to take a wife from where his mother comes from …
844 Dr Mathieu acknowledged that the system at Canegrass was 'compatible with a couple of models' but said that it was particularly compatible with a territorial model where 'the marriage classes are at the rockholes'. But this oral evidence did not shed light on why or how she had reached that conclusion.
Conclusion on Maduwongga laws as to acquisition of rights to country
845 The detailed commentary just given in considering Dr Mathieu's evidence about the marriage system means the conclusion about it can be brief: there is no cogent evidence supporting it. There is no need to repeat all the reasons given above, but it may be helpful to summarise the four main reasons:
(a) the system is outlined exclusively in Dr Mathieu's expert evidence, and finds no reflection in the Aboriginal evidence;
(b) Dr Mathieu's reasoning is impenetrable;
(c) that reasoning is based on data which are fragmentary, of doubtful integrity and, in many cases, not before the Court; and
(d) the considered opinion of Dr Morton, for reasons he explains, is that Dr Mathieu's view is untenable.
XII. WAS THERE A MADUWONGGA SOCIETY?
846 It is now possible, after canvassing much material, to return to the differing views of the experts as to the use by KB of the term 'Maduwongga' (or 'madu wongga') and its significance.
What did KB mean when she said 'madu wongga'?
847 Dr Mathieu's characteristically strong claim in Mathieu I is that Tindale's field notes 'offer irrefutable historical proof' that at Southern Cross and Mt Margaret 'persons identified themselves as belonging to a tribal people named Maduwongga' (Mathieu I para 265). Dr Mathieu says that both 'madu' and 'wongga' are Western Desert words. She accepts that the terms 'Martu' and 'Martu Wangka' were found widely in the Western Desert. She acknowledges that this word for 'man' is also found in the Pilbara. Dr Mathieu also acknowledges that the 'name "Maduwongga" appears to connect KB's people to three other regions in the Desert - the Maru Wangka of the Pilbara, the Madu Wonga of South Australia and the Maduwonga in Cue and Nanine' (Mathieu II para 155, references removed).
848 Nevertheless, in her written reports Dr Mathieu does not address the significance of those strikingly similar names, or comment on what it means for the existence of the Maduwongga as a distinct group, or on what KB might have meant when she referred to herself in Tindale's presence as 'madu wongga'. In cross examination she was asked how it was that such a widely used term came to define a specific group of people in the claim area. Her response was, relevantly (ts 629-630):
… How did it come to define these people? Because at some point people had to identify themselves and their tribal name, which they may not have had, so I say, 'I'm Wongi. I'm Aboriginal.' I say, 'Martu'. That's the word for 'person'. 'I'm a person and in my language the word for person is "Martu".' So you know - -
MR RANSON: And is that what KB was doing when she said that to - - -
DR MATHIEU: I don't know what KB was doing.
849 But as was explained at the beginning of Section VII above, 'what KB was doing' when she spoke to Tindale about 'madu wongga' is significant. Nevertheless, after a brief digression, Dr Mathieu then said (ts 630):
… so it's possible that Maduwongga people didn't have a common name to begin with. That doesn't mean they didn't have a common territory and common laws and customs; they just didn't have a name to refer to themselves, particularly, and they refer to their neighbours.
850 The cross examination that ensued was:
MR RANSON: Alright. Can I ask you this way. Can I suggest what my view is and just ask you if you agree or disagree. Isn't it overwhelmingly more likely that when KB talked to Tindale and said, 'I say Martu', she was simply identifying herself to Tindale as a Western Desert person, probably from somewhere further east or northeast. Doesn't that explanation fit all of the evidence much more easily?
DR MATHIEU: No, not particularly. I don't see what - I don't see what it actually does especially when she said, 'Not Koara. I'm not Koara.' I mean, you know, for all you know, she could have been speaking about the Koara.
MR RANSON: So your opinion is when she said that, she meant something more specific than simply - - -
DR MATHIEU: Yes, I - - -
MR RANSON: - - - 'I say Martu.'
DR MATHIEU: I think so but whatever she meant and whatever - even if Tindale misunderstand, hypothetically, right, and I have not discussed that in my report because I think in some ways it's quite irrelevant. The thing is that - the way I went about it is, is there evidence that there was a social linguistic group in this region, and I found plenty of evidence of that.
MR RANSON: So that's what you were looking for.
DR MATHIEU: Yes, before the 1900 - - -
MR RANSON: I know we talked about you not really having a formal brief. You were looking for a socio linguistic group.
DR MATHIEU: Yes, it was. Is there evidence that there was a distinct social linguistic group, and you know, are the Maduwongga claimants tied to this - this region. And the answer to that is yes. As I said, to put her in South Australia you have to dismiss the evidence. It's not just a matter of, you know, having an opinion; you've got an opinion based on something, and if you have an opinion that says, okay, I think this happened, right, if you're - if you are doing history and if no history.
If you say, 'I think this happened', well, until you find evidence, concrete evidence of - at least circumstantial evidence that is concrete, it remains a hypothesis. And at the end of the day, the data concerned with KB puts her at Edjudina. It does not put her in South Australia. Why would Arthur, even if it - and why wouldn't she know where she was born? I mean, you know - and how come everybody else knows where they're born, but not the Maduwongga ancestors.
851 I take three things from this passage of evidence:
(1) Dr Mathieu's views involve dismissing the undoubted facts that 'martu/madu wangka/wongga' are Western Desert words used widely to designate generic concepts of 'man' (person) and speech, rather than reconciling those facts with her views.
(2) Dr Mathieu's opinions are founded on her views about what can be drawn from Tindale's materials about KB's connection to Edjudina. But as canvassed at several points throughout this judgment, while KB did have an association with Edjudina, and could claim it as part of her country, it is not clear that she was born there, much less that she was born into a group of people who had lived in the Maduwongga claim area since before effective sovereignty.
(3) Ultimately, Dr Mathieu's methodology involved identifying the existence of an unnamed socio-linguistic group in the claim area and putting that together with the Maduwongga claim group's connection with that region (and inferentially, that of their ancestor KB) so as to identify the current Maduwongga claim group (and KB) with that socio-linguistic group.
852 This last point is crucial to the Maduwongga applicant's case. For even if Dr Mathieu were to be correct in identifying a 'socio-linguistic group' as having been in the Maduwongga claim area at or before effective sovereignty, the separate question can only be answered in the Maduwongga applicant's favour if two more matters are established: that KB was a member of that group; and that the group observed and acknowledged a normative system of laws and customs giving rise to rights and interests in relation to land and waters that was different to the normative system of the Western Desert.
853 If KB was not born into that group located in the claim area, however, but came in from the Western Desert, then for reasons explained above, she could not have claimed rights and interests in land under the laws and customs that have been identified by Dr Mathieu. More broadly, it would be unlikely that she was a member of that group (assuming it existed), and so she would not have had rights and interests in the claim area under that group's normative system (assuming it was different to the normative system of the Western Desert).
854 Turning to Dr Morton's opinion about what KB meant when she used the words 'madu wongga', as has been said, his opinion changed over the course of his evidence. Initially (in Morton II paras 45-48) he equated it both with a South Australian tribe mentioned by Tindale known as 'Maduwonga' and also with a South Australian group known as Madutara or Kukata, which AP Elkin said (in his article, 'The Social Organization of South Australian Tribes' (1931) 2 Oceania 44-73) spoke a dialect known as 'Madu Wonga'.
855 The late change of opinion was related to the meaning of those words, 'martu wangka'. According to Dr Morton, a week or two before his cross examination in this proceeding he came across a paper (he did not give the citation) which indicated that in its usage by the South Australian group known as Kukata or Kokatha, 'martu' did not mean 'man', but rather means 'truth'. He said, 'I did speculate a bit about whether that meant, you know, real person, true person, but the source that I have actually says that it means "true"' (ts 725). This brought Dr Morton to the view that 'the relevant Martu Wangka is in fact the one that was reported by Bates at Laverton that Dr Mathieu put me on to' (ts 725).
856 Dr Mathieu mentioned Bates's reference to this different 'Maduwongga' in cross examination. It appears to have been made in a typescript prepared by Bates about the distribution of Aboriginal tribes which includes the following passage (Exh 38 pp 23-24):
Far eastward of the Wajjaree and northward of the Baaduk, were the Marduwonga or Beelandee (beela = spinifex), Spinifex people or Manjinja wonga, who were found at Laverton.
The Beelandee met with at Laverton stated that the Baaduk were their Southern neighbours, their northern neighbours being the Ngaiuwonga …
857 Dr Morton said in cross examination that since Laverton is not quite in the spinifex, it appears that KB and her people had come in from the spinifex. Historically, people were coming into Laverton from the spinifex from the earliest time of the gold rush in the 1890s. He considered that (ts 735):
the best construction of all the facts when they're taken into account is that [KB] came in from somewhere in the Spinifex that I cannot place, into Burtville and/or Laverton. She was a young woman. She would have been a very young woman at that time, probably about 15. She received her thurruru skin at Laverton.
And at some stage after that, she moved down to Edjudina and from there the story is what we know about Edjudina.
…
… she's come from somewhere in the Spinifex that had no class system and that fits with what we know about the direction of the class system's movement, moving down through the 1920s and 1930s and 1940s, gradually to take in that whole Spinifex area down to South Australia.
858 In further questioning Dr Morton identified the spinifex country by reference to a map Berndt published in 1942. This shows Laverton (and Kalgoorlie) as sitting on the very western border of a large area of land labelled 'The [Bila] or Spinifex' (square brackets in original).
859 It is difficult to know what to make of Dr Morton's change of view, especially since the article about the meaning of 'martu' which appears to have prompted it is not in evidence. But in the end, Dr Morton discarded a theory that no one else supported - that KB may have originally come from South Australia. In any event, Bates's reference to a 'Marduwonga' at Laverton appears relevant and is consistent with Tindale's genealogy sheet 118 placing KB there, and the data cards associating her with Burtville.
860 This change of view does not compromise other important aspects of Dr Morton's opinions. In Morton II he goes on to the comment about Andrew Warrell that is attributed to KB on KB Card B, set out at above but repeated for convenience here:
talks same as Andrew N2143
not Ko:ara I say 'madu
I am 'Madu woŋga We came from
E. The Koara now live in
same country but they belong more
to Kanowna side.
861 It may be helpful to provide, as context to this, some discussion of 'dialect groups' that appears in Morton I. These are groups that can be identified with a territory that is larger than the territory identified with land-holding groups. In the Western Desert, land-holding groups are formed when individuals form and establish necessary affiliations to the same area, by means of the multiple pathways. But wider 'dialectical' groups, identified with broader dialectical territories, can be formed by affiliations to a particular dialect.
862 In Morton I (para 117), Dr Morton mentions examples of how Aboriginal people would identify themselves with particular dialect groupings and particular country, by reference to particular words or pronunciations they used (footnote removed):
Group and country names at this level simply tend to emphasise relatively minor distinctive features of a dialect; for example, a particular dialect word, as in 'Pitjantjatjara' (derived from them having the word pitjantja for 'went') or a distinctive pronunciation of a word, as in 'Ngaanyatjarra', 'Ngaatjatjarra' and 'Nyangatjatjarra' (containing variants of the word for 'this').
863 Dr Morton equates these wider groups with the 'tribes' Tindale was attempting to map. However a little later he says (Morton I para 118, footnote removed):
It has been for some time widely recognised in anthropology that these groups and areas that Tindale called 'tribal' do not resemble societies. As Sutton flatly asserts: 'Such 'language groups' may be cultural realities as folk categories, but they are always narrower than the actual range of interactions in which people engage. They are not societies'. In other words, people regularly conduct business across dialect boundaries and are able to do so because the local laws and customs are sufficiently mutual for them to do so.
864 In Morton II, Dr Morton quotes from a report of an expert linguist, Dr Mark Clendon, apparently filed in Wongatha but not itself in evidence in this proceeding. Dr Clendon said 'The term Maduwonga is orthographic Martu wangka (literally "person speech") "Aboriginal language," a term applied generally in the Western Desert to Aboriginal languages as opposed to English' (MFI 1 p 101). Dr Morton refers to evidence that 'martu' is a Western Desert term meaning 'man'. It may be that KB was identifying with a dialect group in the way described in Morton I when she told Tindale, 'I say 'madu / I am 'Madu woŋga', although Dr Morton does not specifically draw a link between that and the above discussion from Morton I.
865 In any event, the question is what group (identified by reference to territory or otherwise) KB was identifying with when she used the words 'madu wongga'. Dr Morton expresses the following opinion (Morton II para 50):
In my opinion, in saying 'I say madu' and 'I am Maduwongga', KB was informing Tindale that she was raised to speak and identify with a Western Desert dialect and language. This is also confirmed by the 'talks same as' reference to 'Andrew N2143' - Andrew Warrell, who appears on another of Tindale's Southern Cross sheets … The list of words under 'Andrews vocab[ulary]' on the sheet is unmistakeably Western Desert language, since each and every one is to be found in the English to Wangkatha section of the Wangkatha Dictionary (as illustrated by Figure 7 below).
Dr Morton matches each of the words in a vocabulary of Mr Warrell that was taken down on Tindale's genealogy sheet 121 to a Wangkatha (ie Wangkayi) dictionary (see [313] above).
866 This comment by KB is the moment, Dr Morton believes, when Tindale 'actually discovers Maduwongga' (ts 424). It happens when he is asking KB about her language, and she is responding by telling him that she speaks the same as Andrew Warrell and is then specific about saying that she says 'madu' for 'man' and so comes from a people called Maduwongga. Thus, in Dr Morton's view, Tindale likely went back to the genealogy sheets after the interview with KB (in this case, on 7 May 1939) and added 'Maduwongga' to them then.
867 Dr Morton thus concludes (Morton II para 60) 'my opinion of Tindale's identification and mapping of the Maduwongga "tribe" is that it was based on minimal and selective evidence that was in any case poorly understood'.
868 It appears that Dr Mathieu had not seen the set of data cards relating to KB (KB Card A and KB Card B) before the expert's conference, so this key piece of evidence is not referred to in any of her first three expert reports filed in this proceeding. But in a further supplementary expert report dated 23 February 2021, Dr Mathieu says that Tindale recorded the word 'Koara', on KB Card B as meaning 'late comer' or 'migrant' (Exh 22A para 9). Dr Mathieu thus expresses the view that Tindale recorded that KB was not Koara, and so 'deliberately indicated that KB was not a newcomer to Edjudina, not a migrant'.
869 Dr Mathieu also considers that when Tindale said that the Koara do not live in the same country but they belong more to the Kanowna side, this was an error and what Tindale meant to write was 'the Kanmara side', Kanmara being a place in South Australia from which Tommy Bluegum (not KB) originated.
870 There was some cross examination of Dr Mathieu about this, from which it became apparent that she considered that the mention of Kanowna did not make sense because, in her view, Kanowna was part of KB's country. She refused to accept it was possible that it did make sense because the tribe known as Koara had come as far south as Kanowna, and KB came from further east. This is an instance of Dr Mathieu insisting on her view of the Maduwongga claim and trying to mould the evidence to fit that view.
871 In any event, it is unlikely that by recording KB's statement about 'Koara', Tindale was deliberately indicating anything about KB; he was, rather, just transcribing what she said. It would be odd if a white anthropologist used a Walyen word to 'deliberately indicate' anything in this context.
872 More fundamentally, the source of Dr Mathieu's view about the meaning of 'koara' does not justify her view. That source is Tindale's 1974 book in which, it is true, he gives the word the meaning 'latecomers' and says it is 'applied to any friendly people who have moved into a new area' and 'has connotations of peaceable or friendly recent arrivals'. But while that might be the meaning of the word, both times it is used in the extract from the book which was in evidence, it is used as the name of a tribe. In one case it is given as an alternative name for Walyen, in another case as a name of another tribe, which has an alternate name that means '"northerners" of the Waljen'. It appears as the name of a tribal territory to the north west of the 'Waljen' territory shown on Tindale's 1974 map. So Tindale seems to have thought it was the name of a tribe. There is also a passage in his 1939 journal where he treats it that way, or at least records his Walyen informant Yordy as having done so. In connection with 'koara', Dr Mathieu gave some evidence about this and other passages from Tindale's journals in response to questions from the Maduwongga applicant but it was inconclusive and no party made a closing submission based on that evidence.
873 In any event, to treat Koara as a tribe is consistent with Elvis Stokes's evidence that Koara is a Wangkayi tribe like Walyen is (see [214] above). Tindale appears to use (or transcribe) it in the same sense on KB Card B, capitalising it as Koara and speaking of a specific group called 'The Koara' who live in Kanowna (or Kanmara). He also gives '[Ko:ara]' as the tribe of Andrew Warrell's mother on Andrew's data card (but gives no tribe for Andrew there) (Exh 33 p 166).
874 As for what KB meant by the word koara, in the concurrent expert evidence session Dr Morton appeared to agree that she may have meant 'latecomer' (ts 425). But his evidence was that there was a tremendous amount of movement, that is migration, going on at the time with families coming in from the desert looking for a more secure living and it was 'not just happening in one go'. The tenor of his evidence was therefore that KB likely used the term to differentiate herself (and Andrew Warrell) from people who came in later than them. That does not mean that KB herself was not a 'migrant', just that she knew of other groups who had arrived later than she did.
875 Further anthropological evidence which the State introduced in the course of cross examining Dr Mathieu was potentially significant. It was a journal article by AP Elkin, already introduced, 'The Social Organization of South Australian Tribes' (Exh 44). In 1931, Elkin spent three weeks at the Mt Margaret Mission investigating a hypothesis that 'natives from the far west of South Australia and adjacent parts of Western Australia were probably migrating west' (p 48). In his view what he found there proved the hypothesis to be correct. Of over 200 Aboriginal people whom he saw there, 'only one belonged to the original local tribe. All others had come in from the east and north-east, that is, from about the South Australian border and the Warburton and other ranges'.
876 Elkin identified a 'Western Group of South Australian tribes' which was 'characterized by a remarkable unity of language, mythology and social organization' (pp 60-61). He found:
A knowledge of one language, the Madu, is sufficient for most of the area, though there are various dialects. One of these, commonly called the Antigerinya, is spoken from Oodnadatta west to the Everard Ranges. This name, however, denotes the people or the language in the west, while the dialect seems to be the same as the Madu Wonga, that is, the Madu language, which is spoken by the Madutara or Kukata who range from about the Everard Ranges south by way of the Stuart Range to Kingoonyah and Wynbring.
877 Then (at pp 64-68) Elkin describes certain characteristics of the tribes of this Western Group which they had in common and which served to mark them off from his Eastern Group of South Australian tribes. Those characteristics included an 'absence of dual organization' and moieties. The result, Elkin suggests, is kinship organisation which is not characterised by a four-section system. The State interpreted this as meaning that the kind of dualism required for a section system to operate did not yet exist.
878 While this may have supported Dr Morton's discarded theory that KB originally came from South Australia, Elkin goes on to describe a different group of 'tribes of south-east central Western Australia have almost the same kinship terminology as the Madutara, but they fit it into a four-section system which, as the names suggest, has spread to them from their north-west' (pp 67-68). These were found in districts on the east and north-east of Laverton, and included the 'taroro' section name that was assigned to KB at Laverton. The tribe to the north-east Elkin calls the 'Mandjinda'. This appears to correspond to Bates's 'Manjinja wonga' as an alternative name for the Marduwonga or Beelandee she found at Laverton.
879 Dr Mathieu was cross examined on this material and it was put to her that it was all entirely consistent with KB having come from the Spinifex country to the east into Laverton and the overlap area, including her comments to Tindale 'I say madu… We came from E' and KB's description of having been assigned a section name at Laverton. Dr Mathieu's response was to rely on an assertion that KB told Tindale that she was born at Edjudina, and that her parents were born there too. That is an assertion which, as has been seen, is not persuasively established from Tindale's records. Dr Mathieu then said:
And Madu is a common word found in many places besides South Australia. Besides, you know there is also a system, an idea of concept of children like of conception that Maduwongga people have and still remember today, and that way of conception would tie them more to the north of the Desert than the east of the Desert, and you also had this section system in the - in the Maduwongga country, came from the northwest.
So you have people coming in from the eastern side of the Desert moving into Laverton. They move in and they take over places where people have died. This is documented by Stanton. It's documented also by Elkin. And you know, there's this - and we know that that Wangkayi, this dialect, has you know replaced the original language that was in Linden, and obviously at Edjudina as well.
Now, that Wangkayi language Mrs Nudding and Mrs Strickland speak, so does Mrs Jackie Spurling. When Mrs Nudding heard her father speak his language, she couldn't understand what he said. It was a different language. So if they had come from this Desert, they would have had that Wangkayi language already. They didn't speak that Wangkayi language.
880 This relies on the proposition that Arthur Newland spoke a different, and indeed mutually incomprehensible, language to the Wangkayi language spoken by Walyen people. As has also been seen, that proposition is not supported by the evidence. Other than that, Dr Mathieu's response was digressive and difficult to understand. She returned to emphasise that her primary reason for differing from the proposition put about KB was KB's supposed birth in Edjudina.
881 Dr Mathieu was also cross examined on whether Bates's identification of a Marduwonga tribe of spinifex people near Laverton was consistent with what Tindale recorded in his journal for 6 May 1939, that the Maduwongga 'originally came from the spinifex country to the east of their present location'. Dr Mathieu did not agree that it was consistent, but the only reason she gave was an assertion that the Beelandee people had sections, whereas KB and Arthur Newland did not have them assigned at birth.
882 That assertion finds some support in Elkin's statement that the Mandjinda had four sections, but it must be recalled that Elkin was writing in 1931, some fifty years after KB's apparent birthdate, and that he said that the four section system had spread to the Mandjinda and their neighbouring group to the east of Laverton from the north-west. Even if there is material from Bates showing that her Marduwonga had sections in 1910 (Dr Mathieu said that Bates took many genealogies of those people, but they were not in evidence), that could still have been 30 years after KB's birth. It is quite possible that at the time of KB's birth this group did not have a four section system. It is also possible that KB's receipt of a section name later in life from a man at Laverton was part of the process of adoption of this four section system by the Marduwonga/Beelandee/Manjinja wonga/Mandjinda.
883 No expert or other witness gave evidence about these possible connections, so I am reluctant to base any firm findings on them. It is enough to say that this evidence reinforces the dynamic nature of the coverage of section systems in the area throughout KB's lifetime and the corresponding difficulty to be had in drawing firm conclusions about the state of affairs at any one point in time.
884 Dr Morton's conclusion in Morton II (at para 70) is that 'the facts canvassed in this report indicate that the "tribe" Tindale mapped as Maduwongga in 1940 and 1974 did not exist as such, and was not a "distinct land-holding group" associated with the overlap area'. By that he appears to be referring to the following matters, as canvassed at various points above:
(a) the significant doubt about why Tindale labelled Mary and Jean Walker 'Maduwongga';
(b) the unreliability of Tindale's mapping of Maduwongga country;
(c) the doubtfulness of the proposition that KB was born at Edjudina;
(d) the likelihood, as set out in this Section XII, that when KB said 'I say madu / I am madu wongga' she was identifying herself as a member of a group of speakers of a particular WDL dialect, not a 'society' in any Yorta Yorta sense; and
(e) the likelihood that since there were section names established at Edjudina, and KB appears not to have been born with one, she came from somewhere further east (as Tindale records her as having said, in terms).
885 Dr Morton thus concludes (Morton II para 99, footnote omitted):
the 'Maduwongga tribe' is essentially a Tindale creation - a case of what my colleague, Dr Paul Burke, in a very similar context, has called 'cartographic ethnogenesis'. In short, 'Maduwongga' seems to have been a mistake, and the area in question appears likely to have been originally distributed amongst Wangkayi ('Wongi') people (not 'Martu' people) and those who spoke the language which both McDonald and Tindale recorded as 'Kabul' (in Tindale's case associated with 'the Kalamaia') …
886 The Maduwongga applicant has not discharged its burden of establishing that KB held rights and interests in the overlap area under the normative system of traditional laws and customs of a distinct land-holding group, of which her descendants are the only identifiable surviving members. The evidence does not establish that there was a society united in its observance and acknowledgement of any such normative system. I summarise my reasons for that conclusion as follows.
KB was not referring to a 'tribe' or other society
887 The only actual record of KB using the term 'Maduwongga', KB Card B, indicates that she was telling Tindale about how she spoke, or the language or dialect she used. KB actually said, 'I say madu'; she was referring to a word she used to mean 'person' and thus telling Tindale about the language she used. She may also have said she spoke the same language as Andrew Warrell, although it is also possible that this was Tindale's observation. In any event, KB's own words as recorded by Tindale show that she used 'madu wongga' to inform Tindale about her ethnic or 'dialectical' identity, as a person who speaks in that way. Dr Mathieu did not accept this, but it is supported by Dr Morton's evidence described in Section IX above and also his evidence just discussed in Section XII, including his evidence about 'dialectical' designations as broad territorial and essentially 'ethnic' designations.
888 Further, the words KB used to describe her dialectical identity were WDL words and she was effectively telling Tindale that she spoke a WDL dialect. She spoke the same as Mr Warrell, a Western Desert man from the Laverton district. Mark Clendon's opinion, as passed on and evidently endorsed by Dr Morton, is that the words KB used were words applied generally in the Western Desert to designate Aboriginal languages. This indicates that KB was a Western Desert person too.
889 There are only three reasons in the evidence to think that KB was using 'madu wongga' as the name of a 'tribe' or other group, by which I mean as a proper noun that was recognised and in common use within or outside the group in order to designate it. The first such reason is the lay evidence of Mrs Nudding and Mrs Strickland that their father and aunties used the word 'Maduwongga' that way. I have explained why I do not consider that credible. No Aboriginal witness other than Mrs Nudding and Mrs Strickland had heard of the term before native title came about. That would be surprising if a distinct group of that name had occupied an area as large as the claim area since time immemorial.
890 Instead, I find that the use of the name was prompted by Mrs Strickland's discovery of Tindale's materials in the South Australian Museum in 1994 and not by any prior knowledge or use of the term in that way by her or her family. That is an inference I make on the basis of the matters just mentioned, combined with the appearance in 1994 of a native title claim under the name Maduwongga soon after Mrs Strickland discovered Tindale's materials, and the precise correspondence of that claim to those materials, and the unconvincing nature of Mrs Strickland's evidence to the contrary (as detailed in Section VII above, under the heading 'The Maduwongga applicant's evidence about the use of the term "Maduwongga"'). The ultimate abandonment by Dr Mathieu and by the Maduwongga applicant of the contention that the word was used to designate a relevant tribe or group strengthens that inference.
891 The second reason to think that KB used the words 'madu wongga' to designate her tribe is that early ethnographers and anthropologists used the term, or similar, in that way. In particular there is Bates's reference to 'the Marduwonga' or 'Manjinja wonga'. But it is not possible to know how Bates learned of 'the Marduwonga' and how that term was used by her informant or informants. She appears in any event to have primarily called the relevant tribe 'Beelandee'. It is therefore quite possible that the 'Marduwonga' she relates was given to her in the same way as KB appears to have given 'madu wongga' to Tindale, to indicate a dialectical identity rather than to give the proper name of a tribe or other group. Elkin also said that the words had been used the former way by the South Australian group known as the Madutara or Kukata.
892 The third reason to think that KB was using the term Maduwongga to designate a tribe is that this is how Tindale understood it, at least at first. But Tindale is the only anthropologist to have identified a Maduwongga tribe in the Eastern Goldfields (outside of the context of native title claims). And for reasons summarised below in connection with his mapping of Maduwongga territory, he was probably wrong.
KB and her parents were not born at Edjudina
893 On the important question of where KB was born, I find that on the balance of probabilities, it was not Edjudina. There is no clear evidence that she was born there. It is true that on one of the two main genealogy sheets, she is associated with Edjudina. But as explained in Section VII under the heading 'The life of KB', that does not necessarily mean that is where she was born. On another genealogy sheet, taken down on the same day, she is associated with Laverton. Dr Mathieu's basis for saying that she could not have been born at Laverton because she was not assigned a section name at birth may well be correct, but the evidence that section names were also observed at Edjudina is convincing, so the same argument indicates that she was not born there either.
894 On KB Card A, KB's birthplace is given as Burtville, WA, which likely refers to the specific place of that name, and Edjudina is in brackets, which likely refers to the broader district of that name. On the same card the birthplace of KB's mother is given as 'Edjudina dist.', so although there may have been changes in the names and coverage of administrative districts between 1907, the date of Bates's map, and 1939, it appears that Tindale and his colleagues still conceived of Edjudina as a district. KB Card B just says she was born at Burtville and, since that card also appears to record KB's words, it is likely to be the most accurate record of what she said about where she was born. Burtville is far to the north of Edjudina, on the other side of the Edjudina Range.
895 It is on those matters that my findings rest; I have not found it possible or necessary to otherwise resolve the controversy about who was Tindale's informant for the different genealogy sheets or data cards. For example, while Dr Morton's inferences at [358] above make sense, there is not enough evidence about Tindale's and Birdsell's methods of working for those inferences to be a sound basis for any findings.
896 Then there are the repeated references in Tindale's notes and published materials to KB or her people having come from 'East', or 'E' (which I find to be an abbreviation for 'East', as that is the most straightforward interpretation both of what she was saying and what Tindale was recording), or from the Spinifex. For reasons elaborated in Section VII, Dr Mathieu's arguments as to why these references do not mean what they seem to mean on their face are unconvincing. To the extent that they are founded on the assumption that the genealogy sheets state birthplaces, and the notion that Tindale mapped the Maduwongga 'ancestral country', and the idea that there were section names at Laverton but not at Edjudina, all those foundations are unsound.
897 Not only has the Maduwongga applicant failed to establish that KB was born at Edjudina, I find on the balance of probabilities that she was not born there. It is not possible or necessary to be specific about where she was born. But the evidence just summarised points to her having come, probably with her family given her likely age at the time of the gold rush, into the Laverton and Burtville area, from spinifex country further to the east of there, and then later down into Edjudina. I find that is likely what happened. The data that associate her with Laverton or place her birth at Burtville are explicable by the fact that they are likely to have been the first European settlements she encountered in her migration, and so the closest to her actual place of birth. The evidence about the movement of section systems indicates that sections were not being observed in the spinifex area to the east of Laverton when she was born, and that she was assigned a section name later at Laverton.
898 It is tempting to link these matters to Bates's identification of 'Marduwonga' people near Laverton, as Dr Morton does. But I am reluctant to do so, because as has just been said, the evidence does not disclose whether they had that name because of the (apparently quite common) use of 'madu' as a marker of 'dialectical' identity, which is how KB used 'madu wongga' as recorded on KB Card B, or whether 'Marduwonga' was used also (or instead) as a proper noun to designate a 'tribe'. It is not necessary to rule on that particular point. The evidence that KB came originally from the spinifex and likely into Laverton/Burtville and then moved on to Edjudina is persuasive enough.
899 As for KB's parents, all we have to go on for Johnny's birthplace is that Edjudina is connected with him on one of the genealogy sheets and on KB Card B. As explained, that does not prove that he was born there. Senior counsel for the Maduwongga applicant accepted in oral closing that the notation on KB Data Card B of Johnny and KB's mother as being associated with Edjudina did not necessarily mean that was where they were born. KB's mother is also shown on the same genealogy sheet as associated with the Edjudina district and also on one of the data cards as born in that district. Even if the data card is reliable (which is doubtful - it appears to have misstated Eva Quinn's birthplace), the Edjudina district appears to have extended north of the Edjudina Range into what is now exclusively the NP claim area.
900 So the evidence does not establish that Johnny or KB's mother were born at Edjudina. Given the findings about KB's movements, it is likely that they too originally came from the spinifex. Johnny may well have been established at Edjudina, later Edjudina Station, at some time either before or after he met Walter Newland, but that says nothing about where he came from originally.
901 As explained in Section VII, the finding that neither KB nor Johnny nor KB's mother were born at Edjudina is itself fatal to the Maduwongga applicant's case. For on that case, KB, and thus her descendants, could only have acquired rights and interests in relation to land and waters in the Maduwongga claim area under the posited 'Maduwongga' normative system of laws and customs if she, or at least her parents, had been born there. Dr Mathieu accepted as much.
The 'Maduwongga' group was very small
902 As discussed at the end of Section VII, the small number of people who appear to have comprised the 'Maduwongga' group during KB's lifetime provides scant support for the case that there was a distinctive Maduwongga society that acknowledged and observed a body of laws and customs with normative vitality.
Tindale's mapping was probably wrong
903 The present application makes claim to rights and interests in an area that corresponds closely to Tindale's mapping of Maduwongga country in 1940 and 1974. The discussion in Section VIII of the controversy between the experts about that mapping leads to the conclusion that it is unreliable and does not present any cogent reason to place in the claim area a distinct society going by the name Maduwongga, or any other name, or no name at all.
904 Inexplicably, Tindale's map of Maduwongga territory does not correspond with his own data collected in 1939 when he spoke to KB and others. Further, the information given to Tindale by his Walyen informant Yordy in 1939 and by the Roundheads in 1966 all but disposes of the notion of a Maduwongga country, because it showed that Walyen country extended much further south, south west and south east than Tindale's maps indicate, and that Kalamaia country likely extended further north east, leaving little or no room for the Maduwongga. And yet Tindale did not significantly alter his maps to reflect this new information. His mapping is therefore unreliable. For reasons given in Section VIII, Dr Mathieu's attempts to deal with these problems and to bolster Tindale's mapping on the basis of other sources are unconvincing.
905 Further, there may be a measure of selection bias in Dr Mathieu's presentation of fragmentary sources which supposedly permit the perception of boundaries acknowledged by Aboriginal people or reflected in their behaviour at or near effective sovereignty that correspond to the boundaries of the present Maduwongga claim area. The court has no way of knowing whether there are other sources that show that different boundaries were recognised on different occasions. I acknowledge that Dr Mathieu has said that she has complied with the Court's expert evidence practice note, but at the same time she has said, no doubt reasonably, that she makes 'no claim to have exhausted all potential or possible information relevant to this claim' (Mathieu I p 7). She also says that she has withheld no contradictory evidence, and I accept that this is a view she holds honestly. But it is in the nature of the selection of such fragmentary records out of the entire corpus of material about Aboriginal life and white settlement in the Goldfields in the late 19th and early 20th centuries that there are likely to be many other sources that could be used to construct alternative theories about the boundaries observed by different groups.
906 What this exposes is that the ethnohistorical method of reconstructing a society is inapposite to the task presently before the Court. If the existence of a society is accepted, then it may be useful to make what one can of the fragmentary record to seek to understand how it was organised. But where the very existence of a society is in issue, there is a danger that 'reconstructing' it assumes the very point that is in question. Which all means that the Court can put little weight on Dr Mathieu's conclusions about the territory of a Maduwongga tribe, given the nature of the source material.
907 As to the lay evidence, Mrs Nudding and Mrs Strickland have given direct evidence that the area to which they lay claim is 'Maduwongga country'. Given the views I have expressed about their credibility throughout this judgment, I am unable to accept that broad conclusory evidence. For other reasons given in Section VIII, I also do not accept that the evidence of Dimple O'Sullivan (in Wongatha) or of Stevie Sinclair assists the Maduwongga case in that regard.
908 The other lay evidence confirms that Tindale's mapping of a Maduwongga tribal area was flawed. Certainly, that evidence shows that KB had a strong association with the Lake Rebecca Area. But while that is within the Maduwongga claim area, it is not coextensive with it. And the evidence also shows that KB's country extended further north, in particular beyond the Maduwongga claim to the band of country stretching from Kookynie through to Linden and Mt Celia. Phillip O'Donoghue also gave evidence that the country of his grandmother Violet Quinn, KB's daughter, went as far north as Mt Celia and the western edge of Lake Carey, although she did say that her heart was around Edjudina. Violet Quinn equated that with KB's country. Elvis Stokes similarly included Kookynie and Linden in KB's country, which he has been told by his father, who knew KB. Although Ivan Forrest's connection to KB herself is not as clear, he gave evidence consistent with that of the other witnesses just mentioned.
909 All this indicates that little store can be placed on the asserted significance of the Edjudina Range as a natural border. That is in line with the mainstream of anthropological opinion. But the very notion at the heart of Tindale's enterprise - that Australia was divided up into territories claimed by tribes - is not. Ethnographic material Dr Mathieu relies on, in particular David McDonald's unpublished memoir, does not support the view that there was a boundary at the Edjudina Range either.
910 There is little Aboriginal evidence of the country associated with other Maduwongga people during KB's time. From evidence apparently obtained through Uncle Gillie Newland, Johnny's country was Edjudina. I accept that it was, but that does not support Tindale's more extensive mapping. As mentioned, Violet Quinn said her country was also KB's country. Arthur Newland's country was Edjudina, Pinjin and Mulgabbie. But other than evidence about, for example, people living in or working around places in the Maduwongga claim area, there is limited specific evidence about the country of the people said to be Maduwongga.
911 Therefore, while it is uncontentious that KB and her descendants spoke and speak for country in the Lake Rebecca area, there is no convincing evidence that this is a result of their membership of a Maduwongga society whose territory is the broader Maduwongga claim area.
The evidence about language does not support the Maduwongga case
912 The WDL dialect said to have been spoken by KB and her children is not a marker of a distinct society. As revealed by the discussion in Section IX, the evidence about who spoke that dialect, and any territory with which it was associated, is inconclusive. It may well have been different from the dialect which appears to have been spoken at Canegrass and Edjudina at, or soon after, effective sovereignty, although the differences may have been minor. No expert linguistic evidence was directly adduced in the proceeding. So there is no reason to think that the dialect was associated with a territory contiguous with either the overlap area or the whole Maduwongga claim area. The reality is that both areas are based on Tindale's map, which is unreliable and seems not to have been based on linguistic considerations. And even if a territorial association could be established, it would not follow that the speakers of that dialect held rights and interests in relation to the territory in question.
There is no evidence of distinctively Maduwongga laws and customs
913 The evidence, summarised in Section X, about observance of laws and customs other than those relating to kinship and the acquisition of rights and interests in land does not point to a distinct Maduwongga society. Mrs Strickland was unable to identify any different customs other than the absence of a section system, an asserted difference which, as has been explained, is not borne out by the weight of the evidence.
914 As far as ceremonial practices go, Mrs Nudding's and Mrs Strickland's evidence makes it plain that the Maduwongga claim area was embedded in a web of ritual relationships that extended far beyond it into the Western Desert. The evidence of other Aboriginal people (mostly adduced by the NP respondent) also made this abundantly clear (see Section X). People came and went from and to places far and wide to engage in ceremonies. KB herself was one such person, and she participated in large ceremonies with Wangkayi families. Arthur Newland probably participated in Law business in places such as Newman, Wiluna and Jigalong.
915 There is no basis in the evidence to identify any uniquely Maduwongga ceremonial practices, other than the point agreed in the Expert Conference Report that there were different burial customs (although Mrs Nudding's evidence appeared to be that even those customs were the same for Maduwongga and for Walyen). Mrs Nudding's and Mrs Strickland's evidence tended to confirm that there are no differences. In light of this I do not consider it necessary to resolve the dispute between Mrs Strickland and Ivan Forrest over who organised Teddy Forrest's funeral, as described in Section X.
916 In addition to this, it is clear from the evidence of nearly all the Aboriginal witnesses that KB's descendants recognise the same tjukurrpa or stories of the Dreaming as the members of the NP claim group who identify as Walyen. I will consider the significance of that in Section XIII below. A connected topic is the laws surrounding places of spiritual and other significance. The evidence provides no basis to identify any laws particular to the Maduwongga that are not also observed by Western Desert people, and indeed no basis to identify places of significance to KB or her descendants that are not also significant to Western Desert people. There are sites of significance to Western Desert people in the Maduwongga claim area which were and are looked after by watis, that is, initiated Western Desert men.
917 In that regard, however, the lay and expert evidence of the Maduwongga applicant sought to draw a distinction between ceremonial rights and responsibilities, including responsibilities to look after significant sites, and traditional ownership or land tenure. I will consider that when I come to consider the Western Desert case in Section XIII below. For reasons best set out there, the distinction does not go as far as Dr Mathieu and the Maduwongga applicant would have it. It is true that watis from a different area may have responsibilities to look after sites in, materially here, the Lake Rebecca Area, where those watis do not speak for the country in that area. But it does not follow that there is a division between Wati Law, that is Western Desert Law, and any 'Maduwongga' laws and customs pertaining to 'land tenure'.
No body of Maduwongga laws and customs in relation to land has been established
918 The evidence does not establish that there ever were any Maduwongga laws and customs pertaining to land tenure or otherwise giving rise to rights and interests in relation to land or waters.
919 Mrs Nudding's and Mrs Strickland's evidence about the absence of section names among the Maduwongga was equivocal and contradictory. It was evidence they did not give in Wongatha, before Dr Mathieu became their expert witness. It provides no good support for any conclusion that any body of 'Maduwongga' laws and customs is to be distinguished from those of the Western Desert because the former lack any section system.
920 The expert evidence, in particular that of Dr Morton, whose evidence I prefer, shows that the coverage of section systems in and around the Maduwongga claim area at effective sovereignty and during KB's time was dynamic and shifting. But a few things can be said:
(a) section names were in place around Edjudina at effective sovereignty and during KB's time;
(b) Dr Mathieu's attempt to explain this by saying that among the Maduwongga, section names were only used for 'external relations' was unconvincing;
(c) there is no clearly observable distinction between the sections observed to the west of the Edjudina Range and those observed to the east; and
(d) KB was not born with a section name, which suggests that she was born elsewhere, likely in an area of the spinifex which section names had not reached by the time of her birth.
921 As for other Maduwongga laws and customs relating to marriage, there was no discernible relationship between the lay evidence of Mrs Nudding and Mrs Strickland about marriage laws and Dr Mathieu's model. The lay evidence resolved to one rule only: marrying outside the group. This is the opposite of Dr Mathieu's theory of an endogamous tribe. And neither Berndt nor Bates provide any firm basis for that theory.
922 Even allowing for the passage of time since KB was alive, and the ongoing impact of white settlement forcing adaptation in laws and customs, this gap between the lay evidence and the expert evidence was large and unexplained. Dr Mathieu's attempt to present 'ambilineality' as an adaptation from an earlier patrilineal rule does not begin to explain it. I have referred to the primary importance of Aboriginal lay evidence in establishing the laws and customs necessary to give rise to recognition of native title under Australian law. The complete disjunction between that evidence here and Dr Mathieu's model would, by itself, make it difficult for the Court to accept the latter. That is so even acknowledging that the separate question concerns the position in KB's time, and does not concern more contemporary issues of the ongoing vitality of laws and customs.
923 In short, the evidence as to the existence of a distinct normative body of laws and customs pertaining to land was scant. It resolves almost entirely to Dr Mathieu's opinion about a connubial system. For reasons developed fully in Section XI, I do not accept that anyone ever observed that system. Dr Mathieu derives it from fragmentary evidence of dubious reliability. How she develops the theory on the basis of Bates and the doubtful linguistic evidence is impossible to understand. The evidence as to where 'Maduwongga' people were born and married is too limited to provide convincing support for the theory, and in crucial cases such as the birthplaces of KB and her parents, is inconsistent with the findings I have made in this judgment.
924 The evidence is inconsistent with the theory in other respects. For example, it is not clear how, under Dr Mathieu's model, Mrs Nudding and Mrs Strickland could have acquired what appear to be primary rights to speak for country around Edjudina, when Mrs Nudding was born at Leonora and Mrs Strickland was born in Coolgardie. If this was the result of some adaptation in the mode of acquiring land rights prompted by white settlement and displacement, that was not explained. The theory was also inconsistent with other aspects of the Maduwongga case. For example, according to that case, all three of Johnny, KB's unnamed mother, and KB were born at Edjudina. But according to Dr Mathieu's model, Johnny was supposed to marry out of his 'estate', so KB's mother should not have been born at Edjudina.
925 These conclusions are fatal to the Maduwongga case. The only evidence that directly points to any 'Maduwongga' normative system of laws and customs giving rise to rights and interests in relation to land and waters was the evidence of Dr Mathieu. I do not accept that evidence. It follows that the Maduwongga case fails.
XIII. WERE WESTERN DESERT LAWS AND CUSTOMS OBSERVED IN THE OVERLAP AREA?
926 In Section III of this judgment I said I would leave until this later section a more detailed description of what may be called the Western Desert case, that is, the case that KB held rights and interests in the overlap area under the normative system of traditional laws and customs of the Western Desert. The matters on which the case is based are set out in the closing submissions of the State, which the other main proponent of the case, the NP respondent, adopted and supplemented. They provide a convenient framework within which to understand the evidence.
927 That is particularly so since for the most part the Maduwongga case in response did not dispute the factual basis of the Western Desert case. Instead, the Maduwongga applicant attacked it at a conceptual level, principally by submitting that the proponents of the Western Desert case have not established any relevant society within which any Western Desert normative system arose. The Maduwongga applicant does also submit, however, that even on its own terms (or on what the Maduwongga applicant says is its own terms) the Western Desert case fails because the evidence of necessary 'intensity of social interaction' (Dr Morton's term) (Morton I para 131) is insufficient and because there is a lack of evidence that ancestors of members of the NP claim group were born in or had associations with the overlap area at effective sovereignty. As has already been noted, the Maduwongga applicant disputes the significance of admitted ceremonial connections of Western Desert watis to the overlap area as having only ritual significance, rather than bearing on laws and customs giving rise to rights and interests in land. These matters will be considered below.
928 In summary, the State outlines the building blocks of the Western Desert case as follows:
(1) The relevant Yorta Yorta society is that of the WDCB.
(2) Under the normative system of that society, rights and interests in land and waters are able to be acquired under the multiple pathways model already described. It would therefore have been possible for a Western Desert person (implicitly, here, KB) to acquire such rights and interests in the overlap area through long association with that area, even if she had migrated there from another area within the country traditionally subject to the laws and customs of the WDCB.
(3) This normative system is closely connected to tjukurrpa, which forms the basis of Western Desert laws and customs and is their source. The tjukurrpa is a code to be followed and is held by watis. Knowledge of it is distributed through a regional community of watis and through that, smaller areas of country are integrated into a regional system.
(4) Ethnographic and Aboriginal evidence establishes that the overlap area is within the geographical extent of the WDCB.
(5) Aspects of the Maduwongga applicant's own evidence support the proposition that KB and her descendants were Western Desert people.
(6) KB came from the spinifex, that is, from the Western Desert.
929 The closing submissions of the NP respondent adopted the State's submissions and supplemented them, in particular by reference to the role of tjukurrpa and the lay Aboriginal evidence that the NP respondent adduced.
930 This section addresses the evidence by reference to the above structure, including consideration of the Maduwongga applicant's submissions at appropriate points along the way. One preliminary matter that needs to be addressed, though, is that aspects of Dr Mathieu's evidence, and the Maduwongga applicant's submissions, criticise Dr Morton's evidence on the basis that it does not describe the position at effective sovereignty. But whether or not that criticism is correct, it raises matters beyond the scope of the separate question. The separate question is stated in the proceeding brought by the Maduwongga applicant (WAD 186 of 2017). It will not result in a ruling on the essential matters that the NP respondent must establish in its capacity as applicant in WAD 91 of 2019, namely the existence of traditional laws and customs as at sovereignty and a continuous connection since then which is manifested in rights and interests arising out of those traditional laws and customs: see Yorta Yorta at [37]-[38], [40], [43]-[44], [46]; NTA s 223(1)(b).
931 The separate question concerns the source of KB's rights and interests in land, and so the position in her lifetime, which lasted until 1945. It is true that the reference in the separate question to traditional laws and customs of the Western Desert could be taken to pose a question as to whether there were laws and customs which answered that description, that is, which existed at sovereignty and have had continuous vitality since then. But as is about to be explained, no party seriously challenged the proposition that there were and are traditional laws and customs of the Western Desert which have enjoyed continuous vitality since effective sovereignty. The ultimate issue is whether KB can be inferred to have acknowledged and observed them, and derived rights in the overlap area under them, or whether she acknowledged or observed laws and customs of a distinct, Maduwongga normative system. That depends on the evidence about the position during KB's lifetime. It is not necessarily tethered to the position as at effective sovereignty. Senior counsel for the Maduwongga applicant accepted this in his oral closing, although he maintained that KB's connection to Edjudina was based on the connection to that country of her ancestors. I have indicated why I do not accept that latter proposition.
932 If I am wrong about that, I would find nevertheless that the evidence does establish that at effective sovereignty, the people in the overlap area did observe the laws and customs of the Western Desert. That is based in particular on David McDonald's autobiography and on the evidence about Jurdain and Yordy that is considered below.
The relevant society for the purposes of the Western Desert case
933 As the State points out, this Court has on several occasions identified the society of the Western Desert people as a relevant society in the Yorta Yorta sense: e.g. Wongatha at [539], [738]; Narrier at [385], [799]-[800], [806], [810]. But as the State also concedes, it is a question of fact to be determined on the evidence of the particular case. I therefore place no weight on the State's reliance, in particular, on the findings in Wongatha.
934 In this case, it is convenient to address the issue by reference to a submission the Maduwongga applicant made in closing. That submission, which has already been mentioned, was that the Western Desert case fails because the expert evidence establishes that the Western Desert (or WDCB) is not the relevant society. This relies on passages from Dr Morton's reports. According to the Maduwongga applicant, in Morton II Dr Morton's evidence is that the WDCB describes 'a large cluster of peoples with similar or related laws and customs' (para 12). The term 'Western Desert' is said to denote for Dr Morton 'cultural or linguistic phenomena, not a physical location' nor 'a "distinct society"' (ibid). The Maduwongga applicant says that in his first report, Dr Morton has expressly rejected the idea that the Western Desert is the relevant society for the purposes of the NP respondent's native title claim. It refers to Dr Mathieu's agreement, in Mathieu II, that the Western Desert is not the relevant society. So, it submits, the case that the laws and customs applying to KB for the purposes of the separate question are those of the Western Desert cannot be sustained.
935 I do not accept this submission, for two reasons. The first reason is that it sits ill with other submissions made by the Maduwongga applicant and with the position of its expert witness, Dr Mathieu. In its written opening submissions (para 18) the Maduwongga applicant draws a distinction between the asserted Maduwongga normative system, and the 'Western Desert normative system' under which '(i) rights to land are held by individuals on the basis of multiple pathways of an individual's relationship to the land, and (ii) social relations are governed by a four-class skin section system'. According to the opening submissions (para 19): 'The four-class kinship systems in the Western Desert shape the normative systems of laws and customs of the Western Desert people: section systems are attached to particular dialect speakers who are attached to particular stretches of country.' This is footnoted to Mathieu III. In its principal written closing submission, the Maduwongga applicant similarly draws a distinction between a 'land-holding group of which KB and her descendants are members and those holding rights to land in accordance with Western Desert laws and customs' (para 9) and speaks of 'the Western Desert normative system' (para 23).
936 These submissions imply that there was a Western Desert normative system, and nothing in the submissions suggests that this is a mere assumption made for the sake of argument. Since they are clearly framed in terms of the concepts elaborated in Yorta Yorta, as incorporated in the separate question, it follows that there must have been a Western Desert society which acknowledged and observed those laws and customs since 'it is axiomatic that "all laws are laws of a society or group"': Yorta Yorta at [49], quoting AM Honoré, 'Groups, Laws and Obedience', in Alfred WB Simpson (ed), Oxford Essays in Jurisprudence (Second Series) (1973).
937 In the Expert Conference Report the matter goes beyond implication. In it, both Dr Morton and Dr Mathieu express agreement with the following proposition (3.1(a)):
The normative system of traditional laws and customs of the Western Desert provides for 'multiple pathways' by which rights and interests in, and connection to, country may be obtained. These pathways, subject to a process of recognition involving negotiations, include some or all of:
(i) Birth in or long association with the area, or a related Tjukurrpa (Dreaming) track, of a person or that person's ancestor;
(ii) Long term residence in the area;
(iii) Biological or socially recognised descent from persons with a connection to the area at effective sovereignty or the early decades of the 20th century;
(iv) Death or burial of a close relative in the area;
(v) Caring for the country over a long term;
(vi) Ceremonial responsibility for the area.
938 Once again, it is clear that Dr Mathieu accepts that there was a normative system of traditional laws and customs of the Western Desert. For the purposes of the separate question, it follows that there must be a society that is defined (in a Yorta Yorta sense) by that normative system of laws and customs. Correspondingly there must be a society out of which that normative system arises.
939 It might be objected that this is insufficient to establish that necessary plank of the Western Desert case, because it tells one nothing about the geographical extent or other composition of the society. But I do not think that objection is sound. It is not necessary for a claim group to show that they or their ancestors were a cohesive social, communal or political organisation, if that is not a requirement of the relevant normative system before rights and interests in relation a particular area can be held. As long as they observe the laws and customs of the wider Western Desert society, and hold rights and interests under those laws and customs, there is no need for the claim group to establish that they themselves constituted a cohesive society: De Rose at [282]-[283]; see also Alyawarr at [80]. So, in Narrier at [805] Mortimer J said:
I do not accept the State's written submission (at [132]) that the 'Court must make positive findings in respect of the membership and geographical extent of the Western Desert Cultural Bloc' both at sovereignty and today (and during each generation in between). Aside from the use of the imperative, this submission is cast too broadly. It is not the task of the Court in this case to determine 'the membership and geographical extent of the Western Desert Cultural Bloc'. It is the Court's task to determine whether the applicant has made out their claim to native title, and whether the land and waters in the claim areas were held at sovereignty by persons who had rights and interests in that country in accordance with Western Desert laws and customs, and whether those interests were passed or transmitted to, or otherwise acquired by, the claim group members' ancestors, again in accordance with Western Desert laws and customs. It should not be any part of the Court's task to decide where the (in my opinion misnamed) Western Desert Cultural Bloc begins and ends. I say that without accepting such a task is possible, or desirable.
940 I would respectfully adopt and adapt her Honour's words to this case. In my view, they can be applied, not just to the WDCB as a whole but also to any posited sub-group of it. No party in this proceeding seriously suggested that there was not a normative system of traditional laws and customs of the Western Desert. The parties all accepted the 'multiple pathways' model of the acquisition of rights and interests in land that is observed within that normative system. It must follow from this that at effective sovereignty there was a Western Desert society that acknowledged those laws and observed those customs. What was directly in issue was whether KB and her family observed the laws and customs of that normative system, and what was indirectly in issue was the extent to which other persons with an association with the overlap area did so. It is not necessary, in order to resolve either of those issues, to identify the precise extent of the society from which arise the traditional laws and customs of the Western Desert, which undoubtedly exist and have existed since sovereignty, and on which the NP respondent relies.
941 The second reason I do not accept the submission is that I do not consider that it states Dr Morton's views correctly. It relies on isolated phrases from his two reports, which convey a different position when considered in their full context. It is true that in Morton I, Dr Morton says he addresses 'the question as to whether or not the WDCB is the appropriate "society" for the purposes of native title recognition (as was put forward in Wongatha)' (para 110) and, in the passage the Maduwongga applicant relies on, he appears to answer this in the negative. But the report as a whole reveals that it is not as straightforward as that.
942 Dr Morton commences that part of Morton I by considering the different views of the anthropologists Scott Cane and Laurent Dousset. He summarises Dr Cane's view as being that '"subtle differences in the pattern of Aboriginal land tenure" between particular Western Desert areas means that "there is no single system of land tenure operating across this desert region"' and that instead, 'tenure is allegedly "distinctly variable" and there are "regional systems that operate contiguously"' (Morton I para 119). Professor Dousset, on the other hand, is said to consider that (para 120):
while one group area might undertake local ceremonies 'that may in some respects differ from the ceremonies of neighbouring groups', they 'are inscribed in a pan-regional and even-pan-Western Desert complex of religious and ceremonial structures' that give rise to 'profound ritual solidarity and interdependence between desert groups'. People associated with adjacent dialect zones 'do not regard themselves as significantly different', says Dousset; they 'stress unity and describe the Western Desert as being populated by "one people"'…
943 Dr Morton then says (Morton I para 121):
As intimated, Dousset's view is in my opinion preferable to Cane's. The differences of which Cane speaks are actually distributed across the lists of 'multiple pathways' spoken of earlier in this report… it appears that Cane is not describing radically different systems, but 'transformations' within a single, wide-ranging system, resulting in regional emphases that shade into each other, not radical differences - hence most difference being detected between the northern and southern extremes. It strikes me as untenable to say that these seeming sub-systems could not be negotiated across their boundaries.
944 So Dr Morton characterises the multiple pathways as applied in different parts of the Western Desert as constituting a single system. He then says (Morton I para 122, emphasis added):
A further question is raised by this; should the WDCB be understood as the relevant society pertaining to the NPC area (as proposed in Wongatha)? The history of the relevant region suggests not - at least if one assumes that a relevant 'body of people' is not simply 'united in and by acknowledgement and observance of a body of laws and customs', but is a 'body of people' that operates across a social field that is most relevant to a particular area; in this case, the NPC area. There is no evidence that this area ever shared a 'social field' with, for example, the area that Cane identifies as Walmatjeri and Tjaru, far to the north but inside the WDCB. However, the early evidence about the groups at Pindini and Edjudina (see earlier in this report), with their 'auxiliaries' in the spinifex, strongly suggests intensive connections to other people dwelling in that direction …
945 The words emphasised in this quote make it clear that Dr Morton is turning away from the Yorta Yorta conception of a society to consider a different one which no doubt has relevance in the field of anthropology. It is in that context that Dr Morton a little later says that the Western Desert is not in his opinion 'the relevant "society" in the context of this report' (Morton I para 125). He comes to define the relevant society he identifies as a zone of intensive social interaction at the south-western Western Desert and its margins.
946 It is relevant to recall that this was Dr Morton's first report, filed in support of the Nyalpa Pirniku claim in 2019 and before the separate question was posed in this proceeding. He does, however, return to the subject in Morton II, in another passage on which the Maduwongga applicant relies, where he says (Morton II para 12):
Whenever I use 'Western Desert' in this report, I have in mind cultural or linguistic phenomena, not a physical location. Nor do I have in mind a 'distinct society'. My view of the 'society question' in relation to Nyalpa Pirniku is dealt with elsewhere; I broach it again below at [98] and [101].
947 The 'elsewhere' is footnoted to a part of Morton I which contains the passages just discussed. It is not clear what the cross-reference to paragraph 101 is about. But paragraph 98 of Morton II expresses the view that 'KB appears to have acquired rights and interests in the Edjudina area, which is part of "the land and waters of WAD 186 of 2017", but only through laws and customs that were generally distributed in the society I have called "the south-western Western Desert and its margins"'.
948 This does not necessarily mean that the laws and customs are not distributed more widely, and so constitute a broader Yorta Yorta society than the regional one that Dr Morton outlines. It is put, rather, as a contrast to the competing view that the overlap area was subject to a Maduwongga normative system. In the same paragraph, Dr Morton refers back to an earlier part of the report in which he states, among other things, the opinion that:
the facts canvassed in this report could support a legitimate claim to the Nyalpa Pirniku claim area by the descendants of KB in relation to 'their … ancestor's long association with the Claim Area' - this 'under the normative system of traditional laws and customs of the Western Desert'.
949 Reading all this together I do not accept that Dr Morton rejects the Western Desert as the relevant society for the purposes of identifying the laws and customs that are referred to in the first limb of the separate question. Rather, I consider that he embraces it. In proposition 3.1(a) of the Expert Conference Report, in effect, so does Dr Mathieu where she agrees that the normative system of traditional laws and customs of the Western Desert provides for 'multiple pathways' by which rights and interests in, and connection to, country may be obtained. So both commonalities in the submissions made by the parties, and the expert evidence on both sides, guide the Court to acceptance that there was a Western Desert society united in observance of a normative body of laws and customs.
950 It follows that the question is not about the 'intensity of social interaction' in the overlap area. The real question is whether the State and the NP respondent have established that KB acknowledged and observed Western Desert laws and customs. That requires assessment of the other building blocks of the Western Desert case, to which I now turn.
Acquiring rights and interests under the multiple pathways model
951 Morton I contains a description of the development of academic opinion about what came to be described as the multiple pathways model of land tenure in the Western Desert. He traces this from Elkin through Berndt, Tindale, Tonkinson and Fred Myers and Peter Sutton. It is not necessary to repeat that exercise in full here, but it is relevant to note a few things about it:
(1) The identification, as early as Elkin in the 1930s, of the importance of tjukurr to the tribes of the Western Desert and the implication of that concept in land tenure, in which what Elkin described as a 'patrilineal principle of descent' is conceived of in terms of men passing on their tjukurr to their sons.
(2) Berndt's description of the gabi or waterhole as constituting a person's most important tie with the land and its equation with country in the sense that 'Mentioning the waterhole at which he was born, a person may say "That's my gabi, my country"' (Morton I, para 85, quoting Berndt (1959) at 97).
(3) WEH Stanner's distinction between the 'estate' and the 'range', as follows (quoted in Morton I, para 88):
The estate was the traditionally recognized locus ('country', 'home', 'ground', 'dreaming place') of some kind of patrilineal descent-group forming the core or nucleus of the territorial group. It seems usually to have been a more or less continuous stretch. The range was the tract or orbit over which the group, including its nucleus and adherents, ordinarily hunted and foraged to maintain life. The range normally included the estate: people did not usually belong here and live there but, in some circumstances, the two could be practically dissociated. Estate and range together may be said to have constituted a domain, which was an ecological life-space.
Dr Morton emphasises here that the patrilineal descent group was the core or nucleus of a wider territorial group, and that Stanner emphasised that 'the membership of a local group might not be determinable by a single principle' (para 88).
(4) Tonkinson's clarification that membership of an estate group need not preclude membership of another and that there can be various criteria for membership. Estate groups thus do not have clearly defined boundaries. They are groups of people articulated by varying criteria, each of whom will tend to name 'varying site clusters' when asked for their country (para 89). This is quite noticeable in the Aboriginal lay evidence about the country of various persons that has been canvassed in this judgment.
(5) The crystallisation, for want of a better word, of the multiple pathways model in Myers' work, and its subsequent refinement in Sutton's. The description of the model that is essentially agreed between the parties has been described, and differences between that and the model developed in the anthropological literature are not relevant. It is enough to say that Dr Morton's exegesis of this work emphasises the importance of place of birth (and conception, which he says can be counted as an equivalent for this purpose) as the 'privileged pathway to country' (quoting Sutton) if not the only pathway (para 92). As will be explained, this is important to the next building block considered below, tjukurrpa.
(6) The differentially important and negotiable multiple pathways, however, mean that on Dr Morton's account of the literature, (para 96, see also para 114):
Western Desert land tenure has neither patrilineal descent groups, nor matrilineal descent groups, nor cognatic descent groups. By implication, it has no such thing as 'clans', which are enduring 'descent groups' recruited by a single descent principle.
This would be a contrast to Dr Mathieu's model of endogamous estate groups tracing their rights to their father's estates through birth on those estates.
952 Thus, as Dr Morton explains later in Morton I (paras 114-115):
in this case one can in my opinion say that a local (estate) group consists of people who have successfully established proprietary rights to an area. Group membership is achieved rather than strictly ascribed, although some claims multiply related to birth, descent, residence and knowledge of country may be so incontrovertible as to be not gainsaid. Western Desert ethnography now clearly indicates that such a group is 'all one family', sometimes irrespective of genealogical connection. It is people's conjoint relationships to country that binds the group as 'countrymen', irrespective of the multiple principles that are invoked as bases for claim.
In my opinion, the so called 'tribes' that early European incomers reported as local to places such as Pindini, Edjudina, Niagara/Kookynie and Laverton (see the earlier chapter of this report) would most likely have been groups of this type.
953 The evidence and submissions did not focus on the point implied by the State's submission that KB in particular was able to acquire rights and interests in relation to the overlap area under the multiple pathways model even if she migrated to that area from somewhere else. There was little evidence about migration patterns or the acquisition of rights and interests by newcomers to an area. But in Morton II, referring to the multiple pathways reflected in attachment A of the NP claim form which describes the criteria for eligibility for membership of the claim group, Dr Morton expresses the opinion that the facts canvassed in the report could support a legitimate claim to the NP claim area by the descendants of KB because of their ancestor's long association with the claim area, that being a claim under the normative system of traditional laws and customs of the Western Desert.
954 Given the evident negotiability of claims to country under the multiple pathways model, there is no reason to doubt that it could operate to give KB rights and interests in relation to the Lake Rebecca Area, even if she was not born there and came there from somewhere else in the Western Desert. That depends, of course, on whether the evidence establishes that the laws and customs of the Western Desert were being acknowledged and observed in relation to that country during KB's lifetime, and whether KB was one of the people who acknowledged and observed them.
955 Lay Aboriginal evidence about tjukurrpa is set out in Section X above. In that section I observed that the evidence, including that of Mrs Nudding and Mrs Strickland, does not support the Maduwongga applicant's case, but does support the Western Desert case. That is because it makes it clear that tjukurrpa of the Western Desert people pertained to country in the overlap area during KB's time. The Wati Law Dreaming stories are shared by the Maduwongga claimants and the NP claimants. I also noted that the mere existence of tjukurrpa pertaining to the overlap area does not necessarily mean that it was the laws and customs of the Western Desert that were observed in that area in KB's time, given that some evidence indicates that tjukurrpa were shared between different groups. However the following expert evidence provides important context for those observations.
956 I have mentioned the importance, on Dr Morton's evidence, of birth, the 'privileged pathway to country', in relation to tjukurrpa. He explains that (Morton I para 93):
as Myers points out, both 'conception and birth' are both spoken of 'as the emergence of an individual from the plane of The Dreaming [tjukurpa] onto the physical, phenomenal plane of existence'. In that sense, customary practices concerning birth and conception are fundamentally similar - a direct link between a living person and a tjukur, and the country associated with that tjukur (thukurr or thukurrpa in Wangkatha). All three might be referred to in Aboriginal English as 'borning'.
957 Dr Morton also says (para 94) that:
it is evident from Myers's list of claim bases that a person possesses mediated links to tjukur through one's parents and grandparents, and that one can claim to belong to associated country thereby. In other words, one may claim country through descent - through both the father's line (or 'side') and the mother's line (or 'side'), and through all four grandparents, whose 'borning' affiliations need not match one's own.
958 Sutton's reworked multiple pathways model, as summarised by Dr Morton, thus commences with (Morton I para 95):
1. Tjukurrpa identification through place of birth
2. Proximity of Tjukurrpa identification to area concerned …
959 Notably for present purposes, Sutton's pathways also included:
5. The language element (having the same language as the country)
6. Own occupational history in the vicinity
7. Taking of responsibility (e.g., rituals; site protection)
960 Dr Morton thus points out that the multiple pathways tenure system is closely connected to 'dreamings'. This concept is known as tjukurrpa, thukurrpa or something similar throughout the Western Desert. He explains it and its normative dimensions as follows (Morton I para 129-130, footnotes removed):
… The Dreaming is the ground of reality in the sense that things emerge from it into 'reality', ready to be seen; The Dreaming makes things 'appear'. As Myers describes it, in line with everything described about thukurrpa by earlier writers such as Elkin and Berndt (see earlier in this report), The Dreaming now manifests itself by tracks and landscape features that were created ('made visible') by 'mythological personages' known as 'totemic ancestors'. Moreover, things - not least of all people - continue to materialise this way from The Dreaming, since 'conception and birth' are 'the emergence of an individual from the plane of The Dreaming onto the physical, phenomenal plane of existence'.
Further than that, The Dreaming is a 'theory of everything', since it 'underlies every feature of [the] universe', including what is known in Aboriginal English as 'The Law'. One comprehensive Western Desert dictionary glosses 'tjukur(pa' as both 'Dreaming' and 'Law', although its primary meaning appears as 'story' (which covers mythology as well as 'unimportant stories'), and a tertiary meaning appears as 'word'. The Dreaming, therefore, is a kind of story that Western Desert people tell themselves about themselves and their world, and notion of 'Law' emphasises the normative dimensions of such stories. Ancestral beings did not only guarantee the 'reality' of places, since they were also the first to practice[sic] all laws and customs within a specified legal and moral framework. The Dreaming as a whole is therefore also a code to be followed; as an inheritance, people follow their ancestors, who are The Dreaming. This ancestral 'ascent' was, in my opinion, the essence of local tradition in and about the NPC area.
961 Dr Morton thus summarises the normative aspects of the Dreaming, and its role in a person's connection to land and rights which arise as a consequence (Morton I para 131):
5. The overarching normative framework of law and custom was 'The Dreaming', defined broadly as the following of ancestral Law (the 'laws and customs').
6. There were local areas associated with reliable waters and thukurrpa (tjukurrpa, 'dreamings'), with areas connected by ancestral tracks and intermarriage.
7. Connection to a thukurrpa site and local area was defined situationally by: local birth; birth on a related dreaming track; birth of a parent or grandparent locally or further along a track; ceremonial responsibility; the local death and burial of a close relative; and long term residence and care of country.
8. These were all forms of identification with country, to which one might have strong or weak ties, with strong ties leading to land 'holding' and rights of control by senior people …
The asserted distinction between the ritual/ceremonial sphere and 'land tenure'
962 Dr Mathieu's evidence, however, raised a point on which the Maduwongga applicant put particular emphasis in its case, concerning the significance of tjukurrpa and, more broadly, the significance of ritual, ceremonial, religious or spiritual connections to a place. The point was that, according to Dr Mathieu, those matters do not pertain to land tenure, which concerns two dimensions of Aboriginal cultural life: economics and 'socio-biological reproduction' (Mathieu III para 58). In Mathieu III, Dr Mathieu developed, at a high level of generality, a distinction between the Law - which broadly speaking is an Aboriginal concept of the order of things, especially in the sphere of the sacred - and laws and customs, which of course comprise the normative systems that are capable of giving rise to rights and interests in land that can be recognised under Australian law. Dr Mathieu places tjukurr or the Dreaming, and the conceptions of the landscape as having been shaped by the 'Creator Beings' who took and take part in the Dreaming, into the former, spiritual sphere.
963 This posited distinction between Law and laws and customs is significant because Dr Mathieu acknowledges that 'Wati Law covers a large region of the Desert, from Jigalong to Coolgardie, to Warburton and Spinifex Country' (Mathieu III para 64). Thus (Mathieu II para 66):
Desert Law (Wati Law) extends over a very large region and draws men of various dialects and from countries lying many hundreds of kilometres away. Arthur Newland danced at Canegrass and took part in Law business in Warburton, Cundeelee, and Newman, and had some interests in Southern Cross.
964 Dr Mathieu accepts that place names in the Maduwongga claim area 'tie the ceremonial and ritual laws to Desert law' (Mathieu II para 156). Her evidence, recounting what she was told by a senior Law man at Newman, Mr Peterson, was that 'the ritual border point is at Coolgardie. Mr Peterson was very firm here, there is no Wati Law past Coolgardie, and no Noongar Law in Coolgardie' (Mathieu II para 158).
965 The widespread distribution of Wati Law is borne out by the lay Aboriginal evidence about Arthur Newland's conduct of Law business as a wati, which is described in Section VII and Section X above. It is also borne out by the Pilki wati Stevie Sinclair's evidence that the 'Wati Law Dreaming stories' are shared by the Maduwongga claimants and the NP claimants and that he himself knows Dreaming stories about Wati Law places that are situated in the Maduwongga claim area, the NP claim area and the overlap area. And it is also borne out by Hector O'Loughlin's evidence, set out in Section X above, that the Wangkayi watis Darbin Murphy, Stumpy Edwards and Wobalie Blizzard told him the places around Edjudina that he could and could not go, that they looked after the land (inferentially, the land around Edjudina) and that Mr Murphy 'looked after all the tjurkurr places around Edjudina and Pinjin' (see Section X above). I have referred in the same section to more contemporary evidence of Ivan Forrest that he has responsibilities for the overlap area as a wati. Dr Mathieu says that it appears that none of the 'applicants' named in the NP claim appear to hold 'traditional ritual rights to Edjudina' (Mathieu II para 80) but that is inconsistent with this body of Aboriginal lay evidence which was unchallenged, and which I prefer to Dr Mathieu's broad assertion.
966 Dr Mathieu later makes the key point as follows (Mathieu III para 70, emphasis in original): 'It is evident from the above discussion that Lawmen have ritual business outside of their own countries and it follows that these interests cannot be proprietorial interests in "land and waters"'. Thus, while Mr Sinclair is responsible for taking care of sites as far away from his Pilki country as Coolgardie, he and other Tjutjuntjarra Law men do not 'seek political influence in Maduwongga affairs or make economic claims' to the Maduwongga claim area (Mathieu III para 71). So while Dr Mathieu goes on to acknowledge that 'a network of sacred knowledge and Dreaming tracks … criss-cross the continent', and that the Maduwongga claim area is 'integrated in the Desert ritual network' (Mathieu III paras 73, 90) her opinion, expressed in the heading to a conclusory section in Mathieu III is: 'The application of Wati Law over WAD 186/2017 [i.e. the Maduwongga claim area] does not equate [to] the application of Desert laws and customs over WAD 186/2017'.
967 Dr Morton, on the other hand, did consider that ceremonial links between people indicate that they were part of the same society. As he put it in the concurrent expert evidence session (ts 459):
Dr Mathieu seems to want to discount the ritual relationships beyond the borders as defining the society. I think that's not legitimate. I think the regional nature of the links with myths and rituals and also with initiation ceremonies - we have at least some concrete evidence of there being ceremonies and wife exchange between areas from Edjudina and areas to the north. The area that is in McDonald is called Pindinnie.
Dr Mathieu seems to discount all these sorts of links in the evidence as not being real links between people who are part of a single society, whereas I would say that people who are busily initiating each other's boys and coming together for ceremonies, important ceremonies, that are linked to marriage exchange would indicate to me that those people are part of a single society. Whatever its boundaries are culturally in terms of language or some particular cultural way of doing things like cooking a kangaroo or having an operation on one's teeth or something like that, but these facts indicate that people get together on a regular basis in order to be part of a single community for that time being which they see as being absolutely essential for the long-term reproduction of their groups.
968 Dr Morton did not accept the distinction Dr Mathieu sought to draw between land tenure and tjukurrpa. When asked a question during the concurrent expert evidence session that posited that distinction, he replied (ts 465-466):
Well, no, the activities of those beings actually brought the land into existence in the first instance, according to the stories. Those are the people who made the country originally. They're implicated in tenure directly - very directly in some areas. You own that story. You get given it ritually and you are - the person has the rights for a particular area. In this particular area, however, that is less obviously the case, because areas are looked after by very large collectivities of initiated men over quite large areas, but they don't go across the entire length and breadth of Australia. They are part of what I'm calling a society in relation to the Nyalpa Pirniku claim which is that roughly the south western section of the western desert across to the Northern Territory and the Western - sorry, South Australian border, and incorporating also some of the south west area where the circumcision line was pushed.
969 Then when asked whether individuals who might have a responsibility for those creation stories, and those lines across vast areas, claim a traditional native title interest in the whole of those areas, Dr Morton responded (ts 466):
No, they don't, but in some cases watis - particular watis are influential enough in an area to feel like they wish to demand to be recognised with native title rights. That is a very contentious point and I think - I think often the people who are local to that area may resent that, but they also find the situation a bit difficult when they're basically in conflict with senior men, senior men with some considerable power. So my experience of doing research in this particular area is that the wati group tends to make a distinction between what it calls the senior men and the senior women, the watis and minyma, that group, and what they generally call the ancestral people, the old people from an area, and so they're clearly thinking in terms of people who have a long-term association with an area as being kind of the real local people for an area.
970 He did not accept that there was, in the words of the cross examiner, 'confusion between the religious dimension and the secular connection to land', saying (ts 466):
Not really, because people who are local to an area know they have to observe certain sorts of rules and regulations in relation to the sites that are there. Their observance of law and custom in the religious domain is often largely through avoidance, not in what they do but what they don't do.
971 Dr Morton confirmed that in these answers, he was talking about a phenomenon whereby tjukurrpa are held at a regional level by a broader group of people, and that in his opinion the area around Edjudina fell within that broader regional system. Then, when asked by counsel for the State whether tjukurrpa was 'an indicia of Western Desert law and custom' he said: 'I think links to tjukurrpa from even outside show that people are engaged with Western Desert law and custom. That is a universal term, tjukurrpa or tjukurrpa - tjukur, tjukur - right through the entire Western Desert, I believe' (ts 467). Dr Morton described tjukurrpa as a 'Western Desert concept' (ts 468).
972 Senior counsel for the Maduwongga applicant explored this concept in cross examination of Dr Morton. Senior counsel sought to draw a distinction between the concept of ritual stories and the concept of land holding. Dr Morton replied that land holding is often related to those stories although the relationship between land holding and the Dreaming is complex and articulated in specific ways in different places. He appeared not to accept the proposition that the Dreaming never defines the extent of a person's land holding, saying that 'people often define their land holding interests by specifying sites and those sites are, if not always, very often associated with a story and so they say my country is this place, this place and that place, and often they've got a story attached to it' (ts 710). After discussion of boundaries and limits to Dreaming stories, or the relative lack of boundaries in the WDCB, the following exchange ensued (ts 710):
MR McINTYRE: So somebody who has extensive ritual knowledge could travel to an area beyond any that that person would claim any entitlement to and participate in ritual activity.
DR MORTON: Well, I think they would. They wouldn't say that it was their country. They would say they're on somebody else's country but they've got rights and responsibilities in that country.
MR McINTYRE: And if that person was particularly knowledgeable that person might be accorded a respected status and take part even in a leadership role in a ceremony.
DR MORTON: Yes, absolutely, along with others.
MR McINTYRE: The conclusion from that really, is it not, is that ritual status and ritual itself is not a definitive concept in relation to land ownership?
DR MORTON: Not a definitive concept. It's a definitive concept in the sense that it's described here and it brought the landscape into being. When people say that, 'This is our mob's country around here', they would be thinking in terms of those sites and the fact that they were created and still manifest the presence of those beings. I think it's fairly unthinkable, certainly in the western desert or somewhere like that, that people would say that they have a country without any dreamings.
973 I prefer the evidence of Dr Morton on this point. It is persuasively put and based on decades of experience and expertise in the understanding of Aboriginal societies and culture. Dr Mathieu's views, on the other hand, are generalised assertions unreferenced to primary or secondary literature and are not based on expertise or experience comparable to Dr Morton's. They are inconsistent with the broad recognition in Australian law of the spiritual dimension of Aboriginal laws and customs in relation to land and waters, as set out in Section V of this judgment.
974 The relationship between tjukurrpa and land tenure is not straightforward. Clearly to hold Dreaming stories in relation to a place is not exactly the same thing as being able to speak for country around the place. As Dr Morton's oral evidence shows, when the former impinges on the latter, difficult situations can arise. But the important point for present purposes is that they arise in the context of the acknowledgment and observance of Western Desert laws and customs. The process Dr Morton describes is part of the well-recognised mode of acquiring rights and interests under the multiple pathways model, where rights to land must be established and are contestable.
975 As a result, the evidence that Mrs Nudding and Mrs Strickland speak for certain country, while Mr Sinclair, a wati of the Pilki People, associated with Tjutjuntjarra, has responsibility for sites within that country, is not evidence against the Western Desert case. It is consistent with that case. The same can be said of Mrs Nudding's evidence drawing a distinction between 'custodians' and 'traditional owners' (see [591] above). The position is encapsulated in the following passage from the written closing submissions of the NP respondent (para 28):
The Nyalpa Pirniku respondent accepts that wati who hold thukurrpa associated with the overlap area and are responsible for related sites in the area may not hold a right to speak for it. Nonetheless, the fact that wati, including from places as far away as Tjuntjuntjarra and Warburton, hold thukurrpa associated with the overlap area is a strong indicator that overlap area is associated with Western Desert laws and customs. This submission is anchored in Western Desert laws and customs relating to thukurrpa.
976 That submission is supported by Dr Morton's evidence and by the Aboriginal evidence about tjukurrpa and sites of significance which is set out in Section X. I accept it.
The evidence about the extent of Western Desert society
977 The next building block in the Western Desert case is the proposition that the overlap area was within the geographical extent of the society of the Western Desert.
978 In its opening submissions the Maduwongga applicant appeared to rely on the finding in Wongatha at [702] that at sovereignty, the culture of the WDCB extended to a line drawn by the anthropologist Ronald Berndt and then faded out gradually west of that to a line between Lake Darlot (south east of Wiluna) and Menzies. Menzies is just north of the northern boundary of the Maduwongga claim area and the Maduwongga applicant said that this meant that the area encompassed by the WDCB did not include Edjudina, where KB lived and, they say, was born. But as I have indicated, in its closing reply submissions the Maduwongga applicant objected to the State's reliance on Lindgren J's findings to establish that the WDCB extended further south west, to encompass the overlap area, so I see no basis on which I can take account of Wongatha at [702]. I will only take account of the evidence adduced in this proceeding.
979 In previous sections I have set out quite a bit of evidence that bears on the question of the south-western extent of Western Desert society. I will briefly recount that here now, with cross references to the more detailed discussion elsewhere.
980 Hector O'Loughlin, a Wangkayi man, referred to the Wongatha as a tribe spread from Laverton to Menzies and past Edjudina (at [215]). His father's country was from Laverton to past Edjudina (see [509]). He attended corroborees with his father near Mt Margaret, with other people from Laverton, Menzies and Edjudina (see [610]). He gave evidence of Wangkayi Law men, in particular, Darbin Murphy, Stumpy Edwards and Wobalie Blizzard who told him about places he could or could not go. Those Law men were from Laverton and Mt Margaret, and spoke Wangkayi. Darbin Murphy looked after the tjurkurr places around Edjudina and Pinjin and knew places of significance within the overlap area (see [633]-[634], [650]). Their lifetimes overlapped with that of KB.
981 Ivan Forrest is a Wangkayi person and a wati who lives between Coolgardie, Kookynie and Kalgoorlie (see [124], [515]). He gave evidence of his father's country being Kookynie and Edjudina and where he would travel with his family as a child (see [514]). Mr Forrest's run went from Kookynie to Pinjin and he can speak for the country around Lake Raeside and Hobble Gap because he is a wati. Before he was a wati he worked in the overlap area and his father and other watis had shown him places of significance and explained where he should not go (see [515]). He also gave the following evidence:
(1) KB was a Wangkayi (see [374]).
(2) Mrs Strickland, Mrs Nudding, Arthur and Albert Newland, Eva and Violent Quinn, Gertie Morrison and Phillip O'Donoghue all have the same country as him (being Pinjin, Edjudina, Kookynie, Yerilla and Yundamindra) (see [508]).
(3) He speaks for the country around Lake Raeside and Hobble Gap as a wati (see [515]).
(4) Edjudina Gap is a tjukurrpa Dreaming site (see [636]).
(5) He has the responsibility to care for cave paintings near the northern boundary of the Maduwongga claim area (see [652]).
982 It is worth noting at this point that the various family relationships between Mr Forrest and Mrs Nudding and Mrs Strickland illustrate the web of family connections between the NP claim group members and Maduwongga claim group members. Mr Forrest is related to Mrs Nudding and Mrs Strickland's mother, Lallie Akbar because she was the cousin of Ivan's father's mother, Nora Brown. The person Mr Forrest identifies as his grandfather, Norman Forrest, was married to a daughter of KB, Eva, whose maiden name was Eva Quinn. She was Mrs Strickland's and Mrs Nudding's aunt (sister of their father). Norman had a son, Teddy Forrest, with Eva's sister Violet, and Ivan knew Teddy well. Ivan Forrest also knew Albert Newland well, as Albert spent a lot of time with the Forrest family at Kookynie. Although he is around the same age or older than Mrs Nudding and Mrs Strickland, in the 'blackfella way', Mr Forrest is obliged to call them auntie (ts 199). While this is the position after KB's lifetime, there is no reason to think that this web of family connections between Wangkayi and putatively Maduwongga people only arose after that time and it provides some support for an inference that KB was embedded in that web too.
983 Elvis Stokes, also Wangkayi gave the following evidence:
(1) He has familial connection with the overlap area as his father's mother's sister, with whom Mr Stokes grew up, was from Mulgabbie and would go up to Karonie and 'roamed' to Mt Margaret and Laverton (see [127], [511]).
(2) His father, Arthur Stokes, who knew KB, told him that she was a Wangkayi person and she was part of ceremonies at Linden (see [373], [609]). Arthur Stokes, also told Elvis that KB's country was Linden, Kookynie, Edjudina and Pinjin, within the Menzies shire (see [506]).
(3) Elvis gave his grandfather, Ginger Stokes's run as 'Lake Minigwal, White Cliffs down to Karonie' (at [511]). Other family members have also travelled through and camped in the overlap area (see [511]).
(4) Elvis Stokes still travels around his country: Pinjin, Linden, Yindi, Mt Celia. He visits sites like Mulgabbie Soak, Lake Rebecca and Edjudina Woolshed. He says that the Blizzards, Forrests, Newlands, O'Loughlins (and several others) have connection to the overlap area and that Edjudina belongs to several families, 'a big mob of people' (see [512]).
984 Cheryl Cotterill identifies as Wangkayi and gave first hand hearsay evidence about her mother in law, Dora Cotterill, who is the oldest member of the Mt Margaret Wangkayi community (see [125]-[126]). Dora Cotterill was born in Mulgabbie and grew up around Edjudina (see [517]).
985 Dora Cotterill's evidence, according to Cheryl Cotterill, can be summarised as follows:
(1) Dora is the half-sister of Eva Quinn, they share the same father (see [126]).
(2) As a young girl, Dora lived with KB around Edjudina (see [126]).
(3) Dora's country is Edjudina, Granites, Eucalyptus, Mulgabbie, Pinjin and Murrin Murrin, but her family is from Edjudina (see [517]).
(4) KB and her family would mix with families from around Laverton (see [507]).
(5) Dora saw corrobborees where Wangkayi people came from 'all around'. KB and her family would mix with families from Laverton way (see [607]).
986 The senior Pilki wati Stevie Sinclair agreed that Hector O'Loughlin speaks for the country around Edjudina (see [534]).
987 Senior counsel for the Maduwongga applicant cross examined three witnesses that were called by the NP respondent (Hector O'Loughlin, Ivan Forrest and Elvis Stokes) about the southern border of the NP claim area and in particular the route it takes around the Hunt Pinnacles and Gilgarna Rockhole. Senior counsel submitted that this was 'a very strangely shaped line which nobody was able to explain' (ts 747-748). But it is not the purpose of the separate question to fix the boundaries of the NP claim area. To the extent that the Maduwongga applicant sought to use the point to damage the credibility of those witnesses, that can hardly erode the preponderance of other unchallenged evidence just summarised.
988 The unchallenged evidence of Hector O'Loughlin, Cheryl Cotterill and Elvis Stokes was not only that they had not heard of Maduwongga before 1994, but also that the descendants of KB were Wangkayi. Ivan Forrest also knew them as Wangkayi.
989 The only person identified in the evidence as a 'Maduwongga' wati, Arthur Newland, clearly had ritual and ceremonial connections to Law business far away from the Maduwongga claim area, including in the Western Desert. Since Western Desert people engaged in ritual and ceremonial exchanges with their neighbours, this by itself does not mean that Mr Newland was a Western Desert person. But it supports an inference that he was.
990 David McDonald identified four Wongi tribes, which he described as 'Wongi of Pindinnie and Edjudina': One was at Pindinnie with an auxiliary in the spinifex and one at Edjudina with an auxiliary in the spinifex (see [427], [611]). The evidence does not support Dr Mathieu's view that the tribes at Edjudina and Pindinnie met for 'wife exchange ceremonies' and otherwise did not interact. Dr Morton disagreed with this assessment (see [426]). In Morton I, Dr Morton notes that McDonald named Pindinnie (Pindinnis) as the 'home ground' of the Wongi (Morton I para 20). He links McDonald's recollections about 'Wongi' people to the modern accepted spelling of that term, wangkayi, which is a Wongatha word. Dr Morton says this indicates that the 'Wongi' people McDonald described were Western Desert language speakers.
991 Bates's data are cited or used by the experts at several points in this case. I am aware that in other cases, judges have cast significant doubt on the reliability of Bates's data and findings: see e.g Narrier at [479ff]. But once again, I must base my views on the evidence and not on findings in other cases. In this case, both experts relied extensively on Bates and with one exception there was little or no evidence directed to attacking its reliability (the exception is the vocabulary data addressed in Section XI above). The experts' use of Bates's data in relation to the Western Desert case can be summarised as follows:
(1) Dr Mathieu refers to a mixture of moiety and section systems which Bates found in the Goldfields area. Dr Mathieu said that Bates confirmed the region was a destination for migrating tribes (see [704]).
(2) Dr Morton summarises some of Bates's data indicating that persons associated with Edjudina and Canegrass spoke a Western Desert language (see [555]-[557]).
(3) Dr Morton says that Bates's genealogy for the Edjudina man Jurdain listed everyone as having a section name (see [717]).
992 Other relevant data from Bates can be summarised as follows:
(1) Bates said there were different section names either side of the Edjudina Range which Dr Mathieu said indicated a socio-political boundary. However the data do not support any clear boundary (see [709]-[710]).
(2) Where the Beerungoomat and Jooamat divisions of the Karratjibbin people to the west and south west of the Maduwongga claim area 'junction' with classes to the north-east and east of them, an adoption into one or the other classes can occur as they share the same fundamental customs (see [719]-[720]).
(3) Bates identified Nyeerbeejee and her uncle Jurdain as being associated with the overlap area, but not as Maduwongga people. They spoke a Western Desert language (see [555]-[556], [805]).
993 Morton I also canvasses the information Tindale obtained in 1939 from his Walyen informant Yordy, and the places associated with Jurdain which have been described in Section VIII above. Dr Morton's view is that both men were part of the WDCB.
994 Dr Morton's views about whether the normative system of traditional laws and customs of the Western Desert applied in the overlap area can be stated quite briefly, mostly by reference to aspects of his evidence that have been described above.
995 In Morton I, Dr Morton expresses the opinion that the area covered by the Nyalpa Pirniku claim 'lies wholly within the area known as the Western Desert Cultural Bloc' (para 81). He refers to Lindgren J's findings in that regard. He then presents a modified map of the WDCB which was prepared by the anthropologist Robert Tonkinson and published in 1974. Relevantly for current purposes, it shows an 'approximate' south western border which encompasses Leonora and the Cundelee Mission. The curved line running between those two points would go through Lake Rebecca, so most but not all of the Nyalpa Pirniku claim area lies within the WDCB as mapped by Tonkinson. However that border is approximate, and as Dr Morton describes it, 'the NPC area lies at the "approximate" south-western border of the WDCB' (Morton I para 82, emphasis added).
996 In oral evidence during the concurrent expert evidence session, Dr Morton emphasised the gradual nature of cultural changes as one moved southwest through the Maduwongga claim area. As he said, in most of the maps of the Western Desert that are produced, Edjudina is usually roughly around the boundary of those maps. He acknowledged that the maps differed so that 'it's a moot point in this particular area about where one might draw a boundary, but certainly it is at the extreme southwestern boundary of what is conventionally understood to be the Western Desert' (ts 460).
997 Dr Morton's concluding opinion on the matter in Morton II is (Morton II para 60):
the evidence pointing to the Maduwongga/Nyalpa Pirniku overlap area being traditionally associated with Western Desert peoples is overwhelming, particularly in relation to the area about Edjudina, but also in relation to the area north of Cane Grass, about Goongarrie - although that area was likely a border zone shared with non-Western Desert people.
998 The evidence on which this opinion is based is:
(a) Tindale's likely misunderstanding of what he was told about the name Maduwongga (martu wangka) by members of KB's family in 1939;
(b) the probable presence of section systems at the time of European intrusion into the area; and
(c) the association of the area with a WDL dialect.
999 The first of these matters is discussed in Section XII under the heading 'The expert evidence about "Madu wongga"'. In short, Dr Morton's view is that when KB told Tindale 'I say madu' and 'I am Maduwongga' she was telling him about the language that she spoke, which was a WDL. She was not telling him that she belonged to a distinct tribe called 'Maduwongga'. The second matter is discussed in detail in Section XI above, under the heading 'section groups'. Dr Morton's opinion is that section systems are likely to have been well established in the overlap area by around 1910, just as there were in the Western Desert. The third matter is discussed in Section IX above on language; there is really no contest between the parties that KB and her family spoke a WDL.
1000 Dr Morton develops his opinions on the source of KB's rights and interests in the overlap area further in the next section of Morton II. He points in particular to the following:
(1)The view, already canvassed above, that the overlap area was part of the WDCB 'at least in the main', and that this is particularly well evidenced in relation to the area around Edjudina. This would appear to refer to:
(a) the information which Yordy gave Tindale that his country went as least as far south as Edjudina and perhaps further to Pinjin (see [434] above); and
(b) the evidence that section names were established at Edjudina when Bates received her information in about 1910 (see [728] above).
(2) KB's origins in the Western Desert - while, as has been seen, Dr Morton changed his opinion about where KB is likely to have come from, that does not change his view that she came from the Western Desert, since the spinifex country east of Laverton is part of the Western Desert (see [363], [854]-[858] above).
(3) KB's association with Edjudina, as canvassed under the heading 'The life of KB' in Section VII above.
1001 Dr Morton considers that the facts canvassed in Morton II 'convincingly indicate that KB was a Western Desert woman connected to places such as Laverton and, more particularly, Edjudina, which both lie within the lands of the WDCB' (para 69).
Dr Mathieu's opinions on the Western Desert case
1002 Dr Mathieu addresses the question of whether KB held interests in the overlap area under Western Desert laws and customs in Section One of her second report (Mathieu II). This section purports to answer (in a slightly rephrased way) the question posed by the first limb of the separate question, in Dr Mathieu's words: 'Did KB hold rights and interests in the land and waters of WAD 186 of 2017 which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of the Western Desert Cultural Bloc?'.
1003 In seeking to answer this question Dr Mathieu refers back to a part of her first report which, she seems to say, identifies 'compelling reasons not to include KB's people and contemporary Maduwongga society in the WDCB' (Mathieu II para 1). That section of the first report starts by acknowledging that although Berndt placed the Maduwongga outside the WDCB, a more recent generation of anthropologists has placed the tribe within that bloc, and also acknowledges that the four section systems that Bates identified in the present Maduwongga claim area would support their position. But Dr Mathieu comes back to stating that 'both Berndt and Tindale drew the boundary of the Western Desert societies west of Laverton, between the Maduwongga and the Waljen' and that '[n]either Berndt nor Tindale classed the Maduwongga as members of either the Western Desert cultural bloc or the Western Desert Tribes' (Mathieu I para 128). She is referring to Berndt's map, based on Tindale's map, grouping tribes according to their kinship organisation, found in the book Western Australia: An atlas of human endeavour - 1829-1879 (which is mentioned at [753] above). But since this map is based on Tindale's mapping of a 'Maduwongga' tribe, which I have found was likely wrong, it cannot be relied on.
1004 Dr Mathieu nevertheless considers that Berndt was correct, and proceeds to explain why. However much of her explanation relies on a discussion of language, which proceeds on the basis that there was a language spoken in the Maduwongga claim area which was not mutually intelligible with WDL, or at least (on the basis of Garnier's word list) 'shows a high degree of differentiation from WDL' (Mathieu I para 148). She even suggests that the Maduwongga language may have been more easily understood by the Kalamaia, Kalaago and Noongar speakers to the west and south than to WDL speakers. To the extent that Maduwongga and their neighbours could understand each other, this is ascribed to bilingualism or multilingualism. These views cannot survive the ultimate concession that KB and her family spoke a WDL dialect.
1005 The other basis of the opinions expressed on the point in Mathieu I is the view that the Maduwongga had an endogamous moiety system which contrasted with the section system of the Western Desert. Those matters have been canvassed extensively in Section XI above. There is no cogent evidence that KB and her family observed an endogamous moiety system. And there is cogent evidence that section systems were in place at Edjudina during KB's time. I therefore disagree with Dr Mathieu's characterisation of the reasons elaborated in her earlier report as 'compelling'.
1006 In Mathieu II, Dr Mathieu goes on to consider the question from the perspective of whether KB's connection to the overlap area derives from Western Desert laws and customs. She considers the self-identification of Mrs Nudding and Mrs Strickland as not the same people as their neighbours in the NP claim group, and not the same as other nearby peoples. She finds corroboration for this in the linguistic data and in Bates's and Tindale's identification of peoples who were endogamous and had no totem or four section system. However those matters do not add to the less than compelling basis for the views on this point in Mathieu I.
1007 Dr Mathieu then goes on to discuss problems with delineating the WDCB. The discussion is at a high level of generality. As Dr Morton notes in Morton II, despite the question posed in this part of Mathieu II, it hardly discusses KB at all. It surveys the findings of Bates and of various anthropologists. It depicts the Western Desert as a collection of small scale societies comprised of independent families who travel across vast expanses of land and sometimes join with other groups, including for ceremonies, and then move on. This, Dr Mathieu says, is in sharp contrast to the information that Bates and other observers obtained from people who claimed territories outside the Western Desert, including the Maduwongga. She does not explain or justify this contrast and it is not clear that she returns to do so in any detail in Section Three of Mathieu II, as she says she will.
1008 Dr Mathieu introduces the supposed distinction between economic rights to land - the right to be asked before others may enter country and thus hunt and gather there - and ritual responsibilities. She engages in a survey of linguistic differences, and their significance, among WDL speakers, saying that 'in the Desert, language at once unifies and differentiates people' (Mathieu II para 46). She mentions again the now discarded position of the Maduwongga applicant that Arthur Newland, Eva Forrest, Violet Quinn and Lena Judd spoke a language that was not intelligible to the Walyen or to Joyce Nudding and Marjorie Strickland. She discusses contrasting views of anthropologists as to whether movements of people, presumably those documented from the time of the gold rush, were not migration but merely the usual practices of Desert people to move over large areas to forage. Dr Mathieu expresses a preference for that view. She speaks of a contrast between land tenure as a 'system of boundaries' and land tenure as a 'system of frontiers' (Mathieu II para 57-58).
1009 It is difficult to extract from this highly discursive and general discussion anything that bears directly on the question at hand. In a purportedly conclusory section of Mathieu II, Dr Mathieu examines Dr Morton's opinion about what is the relevant society. She seems to suggest that his identification of the society as a zone of intensive social interaction at the south-western Western Desert and its margins is intended to deal with the question of why, if the entire Western Desert is the society, all people who can claim rights and interests under the Western Desert normative system were not part of the Wongatha claim. Dr Mathieu considers Dr Morton's views on the point to be unsatisfactory because they do not say why the overlap area, west of the Edjudina Range, should be more relevant to the NP claim than the region of Southern Cross or the WDCB in its entirety.
1010 Dr Mathieu identifies the following problems which remain (Mathieu II para 69):
1. The absence of academic consensus on what constitutes the WDCB and where its external boundaries lie seriously limits its analytical value. Is the WDCB defined by linguistics, kinship, ritual initiation, religious beliefs, customs, geographical environment-either, some, or all of the above?
2. The WDCB is not an Aboriginal construct, it is an analytical tool, which insofar as it seeks to understand commonalities, is not the most useful model with which to identify the socio-territorial boundaries found within the WDCB and those outside of it.
3. The WDCB is best understood as a cultural sphere, which is to say, a zone of cultural influence. Accordingly, at the margins of WDCB and beyond, aspects of Desert culture may be found among people who may not identify as 'Desert people'. The people of Southern Cross, for example, once observed the same male initiation rites as the people of Jigalong but people in Jigalong consider them Noongar, not Desert people.
4. The totemic principles guiding the laws and customs of the WDCB are not exclusive to the WDCB, they guide laws and customs over the Australian continent.
5. The laws and customs of the WDCB are not homogenous because a common cultural principle cannot be equated to a single body of laws and customs. At least two normative systems may be invoked: a frontier and boundary system, and there are many other expressions of customs and laws to be found in association with different localities, including different stories, artistic representations, ritual objects and so forth - whose nuances are meaningful to the people who hold them.
1011 With respect, much of this may well have merit, at the high level of generality in which it is expressed. So too one may accept many of the 13 'general principles that identify the Desert people and Desert societies' which follows the above excerpt in Dr Mathieu's report. It is not necessary to set them out. Neither they nor anything else in this section of Mathieu II provides a clear answer to the question which serves as the main heading to the section, namely whether KB held rights and interests in the overlap area under the normative system of traditional laws and customs of the Western Desert.
1012 It would appear that Dr Mathieu's answer to that question is 'no', because she does not consider that there is the necessary consistency and coherence of laws and customs within the broadly dispersed peoples of the Western Desert for it to constitute a Yorta Yorta society. But her broad survey does not displace the specific submissions and specific evidence referred to above, which establish that there was a normative system of laws and customs of the Western Desert, and which stipulate what its contents were for the purposes of the separate question. It provides no basis for the Court to discount Dr Morton's expert opinion that differences in rules about land tenure within the Western Desert are 'not describing radically different systems, but "transformations" within a single, wide-ranging system' (Morton I para 121). And it says little or nothing about any specific evidence as to whether KB can be inferred to have acknowledged or observed those laws and customs.
1013 Dr Morton responds to Dr Mathieu's views on these matters in Morton II. But apart from dealing with a specific comment about KB's feelings about 'the Desert people' which is not relevant to this proceeding, Dr Morton finds little to say about this section of Mathieu II. That is because on his reading of it, it does not perform the task of showing why Western Desert laws did not apply to the Maduwongga claim area and KB. While I would put the onus of proof the other way around, I agree with Dr Morton's overall assessment of this part of Mathieu II. It simply does not answer the question it poses.
1014 Section Two of Mathieu II then goes on to address the question of whether KB and the region of Edjudina should be included in the NP claim. While this question is not directly relevant to the separate question, it engages issues that do bear on the question that is relevant, being the first limb of the separate question. So I will try to summarise what Dr Mathieu says in Section Two.
1015 She steps through 13 propositions Dr Morton gave in Morton I which summarise his opinion. Again, it is not necessary to set them out (although four of them are quoted at [961] above in connection with tjukurrpa). Dr Mathieu says it is difficult to justify Dr Morton's 'categorical statement that the NPC falls entirely within the WDCB since Bates, Berndt, and Tindale exclude Edjudina from its geographical boundaries' (Mathieu II para 73). However she largely agrees with Dr Morton's propositions that describe the content of the Western Desert normative system. But she says she cannot agree with his inclusion of Edjudina in the NP claim. Apart from the reasons already canvassed, she goes on to give further reasons for her disagreement.
1016 Dr Mathieu finds it highly significant that only one person named in the NP claim was born in Edjudina before the 1892 gold rush. According to Dr Mathieu, that person is KB; I have already found that she was not born in Edjudina. That does away with the contrast Dr Mathieu seeks to draw between her and the other named ancestors in the NP claim. It does not, of course, absolve the NP respondent of the need to discharge its own burden of proof, but it does dispense with a foundational proposition for Dr Mathieu's critique - that KB was born at Edjudina. Dr Mathieu goes further, however, and characterises Tindale's Walyen informant Yordy as the only exception to her assertion that none of applicants named in the NP claim or their predecessors appear to hold traditional rights to Edjudina.
1017 Dr Mathieu goes on to draw a contrast between KB's predecessors and descendants, who she says are not associated with anywhere east of the Edjudina Range, and the NP claim group members and their predecessors, who only have 'residential associations beginning from the 1920s' (Mathieu II para 81). She says that this 'surely indicates two distinct social fields' (para 81). However for the reasons given this contrast breaks down. While the residential association may have commenced earlier in the case of Johnny and KB, they too had moved into the area.
1018 Dr Mathieu also relies on things apparently said to her by Mrs Nudding, Mrs Strickland and Stevie Sinclair, but my findings in this matter are based on the evidence those persons gave directly, not paraphrased hearsay from Dr Mathieu.
1019 Dr Mathieu also mounts a defence of Tindale's mapping of Maduwongga country which has been considered in Section VIII above. In that part of Mathieu II, she returns to the subject of the boundaries of the WDCB. She says, 'Berndt did not contest the boundary Tindale drew between the Maduwongga and their Western Desert Walyen neighbours. Nor did he underestimate its significance. In fact, he set the limits of the WDCB at this precise boundary' (Mathieu II para 91).
1020 In Morton II, Dr Morton says he is unable to locate the source of that statement, which Dr Mathieu does not reference. He annexes various maps that the Berndts published at different times, none of which appear to delineate a boundary of the WDCB between the Walyen and Maduwongga tribes. However, Dr Morton appears not to have recalled the map from Western Australia: An atlas of human endeavour - 1829-1879. While that map does not label the WDCB as such, that is what it appears to show, with 'Waljen' within that bloc and 'Maduwongga' on the other side of the boundary. In any event, Dr Morton expresses the opinion that the other maps prepared by the Berndts, which he reproduces in Morton II, suggest the spread of Western Desert peoples about Kalgoorlie by the mid-20th century, and that they in any event do not confirm the exclusion of Edjudina from the WDCB.
1021 It is also relevant here to mention that in Mathieu III, Dr Mathieu examines how Berndt set the boundary of the WDCB at Tindale's border between the Walyen and the Maduwongga. This is based on the same map. Dr Mathieu attributes Berndt's decision to draw the line there to the differing kinship structures of the Maduwongga-Kalamaia-Kalaago-Ngurlu cultural bloc on the one hand and the WDCB on the other hand. The discussion of that subject in Section XI above shows that distinguishing between different 'tribes' on that basis is highly problematic.
1022 All in all, Section Two of Mathieu II relies on matters I have found not to be established by the evidence, essentially, KB's birth at Edjudina and the accuracy of Tindale's mapping. It does not contain good reasons to find against the Western Desert case.
1023 Section Three of Mathieu II purports to address the second limb of the separate question, rather than what I have described as the Western Desert case. Most of what is covered in that section of the report has been addressed elsewhere in this judgment, for example the organisation of Maduwongga society into moieties. Some of it concerns Marlinyu Ghoorlie claims, and so is not relevant to the overlap area or the separate question.
1024 Dr Mathieu concludes by considering the country of Yordy and Jurdain in the manner that is described above in Section VIII.
1025 Dr Morton in turn considers the information about Jurdain in Morton II, in response to Dr Mathieu's discussion of it. He refers back to an opinion given earlier in Morton II 'that Jurdain's wangka (speech) was probably of a Western Desert type' (Morton II para 83). He examines typescript notes of Bates's discussion with Jurdain which give ten places that run from Coolgardie through Edjudina up to Linden. This typescript is not in evidence but Dr Morton says it corresponds closely to the list given by Dr Mathieu. Dr Morton draws a line through the first 10 locations on a map which shows that 'they form a 'line' or 'road' skirting the south-eastern boundary of Tindale's Maduwongga area, except that the line extends beyond the Lake Raeside boundary to end at Linden, on the shore of Lake Carey (which Tindale maps as Walyen)' (Morton II para 84, Map 11). So Dr Morton accepts 'that Dr Mathieu is right to suggest that Jurdain's country, as mapped for Bates, bears close comparison with the Maduwongga area mapped by Tindale' (Morton II para 85).
1026 But Dr Morton does not consider that it follows that the Edjudina district was excluded from the WDCB. He points out that the line drawing Jurdain's country goes to Linden, 'which is most assuredly part of the area of the WDCB' (Morton II para 85). He says that Jurdain's speech, as well as that of his niece Nyeerbeejee, 'appears to have been in a Western Desert mode'. And he remarks that the area around Jurdain's 'line' from Coolgardie to Linden 'is one where Bates recorded the mixing of sections characteristic of parts of the WDCB with generation moieties characteristic of an area to the south-west of the WDCB'. Dr Morton's opinion is thus (Morton II para 86, footnote omitted):
Jurdain's line most likely traversed a large expanse [of] country that was part of the WDCB - from Linden and Edjudina to somewhere about Kalgoorlie. The mixing of sections and generation moieties in the more westerly part of that area suggests that it was a border region associated with more than one language, one Western Desert, the other not - this on account of regularised 'inter-tribal' marriage between Western Desert people and people of (what Bates called) 'The Karratjibbin (Southern Cross) Nation', whom Tindale referred to as Kalamaia and Kalaako.
1027 In the concurrent expert evidence session Dr Morton placed even more emphasis on Jurdain, as a 'Western Desert man' (ts 454), implicitly one who had country around Edjudina, and similarly Yordy.
1028 Dr Morton also examines a relevant passage from David McDonald's unpublished memoir, which has already been discussed in Section VIII and Section X above. He gives a fuller quote of the passage (Morton II para 96), relevant extracts of which are (with Dr Morton's interpolations, footnotes omitted):
… I learned much about the Wongi. They were not so much of a Nomad as some writers would have one believe. The various tribes such as roamed the goldfields area, Kabul of the Coolgardie area, Mulba of Norseman, Wongi of Pindinnie and Edjudina each had their own section of country mapped out and their home ground would be at the most permanent water supply.
The Wongi were split into four tribes, one at Pindinnie with a type of auxiliary out east in spinifex country, another at Edjadoo [Edjudina], also with an auxiliary in the spinifex. Ed … [following line missing] …
There is little difference in the language or lingo of these friendly tribes but they have different words for some things for instance; a dingo at Pindinnie is called Wangoo and at Edjadoo, Bubba … [Many further language examples follow.]
The native name of Pinjin is Binjinnie. This is in Wongi country …
1029 Dr Morton takes the following propositions from this (Morton II para 97):
a) Pindini, Edjudina and Pinjin were 'Wongi' places - that is Wangkayi, and therefore Western Desert places.
b) The people of these places spoke closely related dialects of the Western Desert language.
c) The people of these places were socially and culturally connected to other Western Desert peoples in 'the spinifex' (further east).
d) The people of these places intermarried, and therefore were related to each other by kinship, and they jointly conducted ceremonies.
In Dr Morton's opinion, these matters 'are sufficient basis to conclude that the people of Pindini and Edjudina were, in McDonald's time, part of the same society'.
1030 I accept Dr Morton's opinion in this regard. The Maduwongga applicant sought to cast doubt on the reliability of McDonald's memoir on the basis that it was written long after he experienced the people and places in question here, and on the basis that a page was missing from the relevant extract. I have already indicated that I disagree with the latter point. As for the broader reliability of McDonald's memoir, it is of a piece with the inevitably incomplete nature of the historical record in this area. But McDonald's recollections are cogent, convincingly detailed, and consistent with the rest of the evidence. Like Dr Morton I consider them to provide valuable information as to the occupation of the overlap area at or near the time of effective sovereignty.
Cross examination of Dr Mathieu
1031 Dr Mathieu was cross examined on the anthropological literature about the extent of the WDCB. She was taken to a passage from Berndt's seminal 1959 article, 'The Concept of "the Tribe" in the Western Desert of Australia', introduced above at [25],in which Professor Berndt says that the 'region in question extends eastward from Kalgoorlie, Laverton and Leonora as far as Oodnadatta'. She did not accept that this means that the south western boundary of the WDCB should be placed at Kalgoorlie, however, because Berndt, in her view 'was focussed on ritual' and it was 'the religion' that interested him, so he 'had little interest in social economic territories' (ts 613). This appears to hark back to Dr Mathieu's distinction between spiritual and economic spheres where only the latter encompasses land tenure. Dr Mathieu also pointed out that Berndt's mapping of the Western Desert occurred around 1959, and so may not bear very directly on the position at effective sovereignty (or, I would add, during KB's lifetime).
1032 Dr Mathieu was also cross examined on an earlier article by Ronald and Catherine Berndt, 'A Preliminary Report of Field Work in the Ooldea Region, Western South Australia' (1942) 12 Oceania 305-330 which says (p 307) 'The extent of the wanderings of the desert people may be observed by the main waterhole ("gabi") routes set out in the map. These fringe the limits of the desert on the west and east, the "hill" country on the north, and the Nullarbor Plain on the south'. The map of those gabi routes shows them extending to Kalgoorlie from both the east and the north east, and so essentially encompassing the Maduwongga claim area. But Dr Mathieu once again discounted that as referring to the position in the 1940s after, she said, the Desert people had 'moved in' (ts 616).
1033 Dr Mathieu was also cross examined about the evidence described above to the effect that the presence of watis such as Darbin Murphy, Wobalie Blizzard, Stumpy Edwards and Ivan Forrest in the Edjudina area was a marker of the presence of Western Desert laws and customs in that area. Dr Mathieu accepted that there were ritual connections, but said that had nothing to do with 'laws and customs' (ts 656). Evidently she was relying there once again on her distinction between spiritual matters and land tenure.
Conclusions about the anthropological evidence
1034 I accept Dr Morton's evidence that Western Desert laws and customs were acknowledged and observed in the overlap area during KB's time, because of the accumulation of the following matters:
(a) section sytems were in place there;
(b) WDLs were spoken there;
(c) Yordy and Jurdain were Western Desert men, and had country there;
(d) KB lived there, and she was a Western Desert person; and
(e) David McDonald identified Wangkayi tribes there.
1035 For reasons canvassed above, Dr Mathieu's opinions provide no good reasons to doubt the matters on which Dr Morton relies.
The Maduwongga applicant's own evidence
1036 The State then points to evidence that Mrs Nudding and Mrs Strickland gave in Wongatha and in this proceeding which demonstrates, the State submits, that they and the other descendants of KB acknowledge and observe Western Desert laws and customs. I have set out much of that evidence above. Section X sets out extracts from the transcript in Wongatha in which Mrs Strickland referred to the Maduwongga as following 'the Wangkayi way' and in which she was unable to identify any differences between Maduwongga customs and those of people who identify as Wongatha. In Wongatha she later identified language as a difference, but as explained above that cannot be sustained.
1037 I have also set out transcript from the cross examination of Mrs Strickland in this proceeding in which she identified the absence of a section system as a difference. As explained in Section X in connection with the subject of section groups, the evidence does not establish that this was indeed a difference.
1038 The State also points to other aspects of Mrs Nudding's and Mrs Strickland's evidence which, it says, include a number of other indicia of Western Desert laws and customs. They were the importance of tjukurrpa relating to sites in their country, including Lake Rebecca and Lake Raeside, the importance of kapi (gabi or rock holes) in denoting a person's country, and Arthur Newland's status as a wati who had involvement in Law Business. In that regard, it will be recalled that the evidence about Mr Newland set out in Section VII, Section IX and Section X, was to the effect that he could speak for places of significance in the overlap area and was engaged in Law business in places in the Western Desert far beyond the Maduwongga claim area (see [656]). Hector O'Loughlin, Elvis Stokes, Dora Cotterill (via Cheryl Cotterill) and Ivan Forrest also gave evidence to the effect that Mr Newland was Wangkayi.
1039 As for Stevie Sinclair's evidence, with one exception he said he did not know whether members of the NP claim group who were named to him spoke for the country around Edjudina even though he knew them; he said 'I only know just Marjorie and … Joyce, yes' (ts 336). The exception was Hector O'Loughlin, whom Mr Sinclair said he knew. When asked whether he knew anything about whether Mr O'Loughlin speaks for that country, Mr Sinclair said 'Well, I think so, yes. He's been there for a while. So, yes, probably, yes'.
1040 When cross examined about this Dr Mathieu said 'Well, maybe they do. Maybe they have ritual rights there, but they're not primary rights' (ts 657). This is an example of Dr Mathieu's readiness to reach for speculative rationalisations of the evidence so that it does not impinge upon her theoretical constructs. But it is plainly inconsistent with Mr Sinclair's evidence - a right to speak for country is a primary right: see Ward HC at [14] and see Dr Mathieu's own oral evidence associating rights to speak for country with land tenure. It is Mr Sinclair's evidence which I accept, not Dr Mathieu's speculation about what it might mean.
Whether KB came from the Western Desert
1041 This subject is canvassed extensively in Section VII (under the heading 'The life of KB') and Section XII. I have determined that KB did come from the Western Desert.
Conclusions as to the Western Desert case
1042 In my view, the Western Desert case has been made out, principally on the basis of the matters that have been canvassed in this section. Those matters establish that during KB's time (and, if it is relevant, at effective sovereignty) there was a Western Desert society united by common observance of a normative system of traditional laws and customs. Under those laws and customs, rights and interests in relation to land and waters were acquired via multiple pathways including birth in or long association with an area.
1043 Those laws and customs and the identification with country that gives rise to land rights were bound up with tjukurrpa. Tjukurrpa had a normative dimension which could give rise to land 'holding' rights, and there is no useful distinction between a ritual and ceremonial dimension expressed in tjukurrpa and an economic one that inheres in 'land tenure'. In any event, acknowledgment of tjukurrpa and Wati Law in an area is a strong indication that Western Desert laws and customs were acknowledged in that area. Tjukurrpa and Wati Law were acknowledged throughout the Maduwongga claim area, reaching as far west as Coolgardie.
1044 There is also ample lay Aboriginal evidence which indicates that Western Desert people held country in the overlap area during KB's time. Some of the evidence concerns that time directly, other evidence pertains to more recent times but supports the proposition by inference.
1045 The lay evidence described in Section VIII also establishes convincingly that KB was associated with the Lake Rebecca Area. But that same evidence also makes it clear that she was not alone in her association with that area. For the most part, the other people who were associated with it during her time are not named, although Mrs Nudding did mention Norman Forrest, Jessop Sullivan and Tommy Bluegum as among the 'old people' who spent time camping with KB on country. Norman Forrest was from the other side of the Edjudina Range from the Maduwongga claim area, from Linden through to Kookynie. Jessop Sullivan was from Darlot, north of the Maduwongga claim area. It appears uncontentious that Tommy Bluegum was a Western Desert person.
1046 Mrs Nudding described KB as a 'tribal' person who moved around 'nomad style' (ts 66). The white man Simpson Newland would complain of 'full bloods' hanging around Old Pinjin. They included Lilly McDonald and her daughter Dora Cotterill. A person frequently mentioned as accompanying KB was Roy Sullivan, whose country extended well into the Western Desert including into the current NP claim area. Albert Newland, who spent time with KB as a child, remembers a big camp with a number of families at Eucalyptus. Albert Newland recalled KB herself wandering as far afield as Linden, Eucalyptus, Mt Celia and Kookynie, outside the Maduwongga claim area and in the NP claim area and gave evidence in Wongatha that KB was connected with that land. He appears to have said with some force that he knew KB's country because he had lived with her. Dora Cotterill, who knew KB, said that she and her family would mix with families from Laverton way, that is, from the Western Desert, including for ceremonies.
1047 I thus find that KB was Wangkayi, that is, she was a Western Desert person. By that I mean that she was a member of a group that was part of the culture of the Western Desert. She came from the Western Desert, the spinifex. She spoke a Western Desert dialect. She associated with Western Desert people and had familial relationships with them. She participated in ceremonies with Wangkayi people from all around. Unchallenged evidence of Dora Cotterill, Hector O'Loughlin, Ivan Forrest and Elvis Stokes characterised KB as Wangkayi. So if Western Desert laws and customs were observed in the overlap area, this all provides a sound basis to infer that KB acknowledged and observed those laws and customs, and further that her long association with the area was sufficient, under the multiple pathways model, to give her rights and interests in relation to it.
1048 As to the question of whether Western Desert laws and customs were observed in the overlap area, in my view the debate about where the Western Desert Cultural Bloc ends is an arid one in the context of the separate question. It is not the kind of thing that can be mapped with precision and plainly the overlap area is at or near the south-western extent of the geographical coverage of the concept. What matters more, in my view, is the specific evidence that tjukurrpa and Wati Law extended across the Maduwongga claim area, that the people who occupied the overlap area all spoke WDL dialects, that section names were observed in the overlap area, and that Jurdain, Yordy and a host of other Wangkayi people from later generations had country in the overlap area.
1049 Dr Morton's expert evidence confirms the significance of all these matters. But it is appropriate to focus in conclusion, on that last point, namely the Aboriginal evidence about the connection of Wangkayi people to the overlap area. There is a large body of such evidence, establishing that during KB's time, many Western Desert people and families held rights to country in the overlap area, including around Edjudina. It has been canvassed throughout this judgment but can be summarised as follows:
(1) Evidence about Dora Cotterill's association with the overlap area, and her association with KB (see [126], [515], [517]).
(2) Evidence about May O'Brien's association with the overlap area (see [516]).
(3) Evidence about Hector O'Loughlin's father, Frank O'Loughlin, and mother, Doreen O'Loughlin, who were both Wangkayi and had country in the overlap area (see [509]).
(4) Ivan Forrest's evidence about his father, Norman Forrest, having country at Edjudina, Pinjin and Menangina in the overlap area (see [514]).
(5) Cheryl Cotterill's Walyen father, Morris Brownley, who was about 19 when KB died and whose country was identified as including the overlap area. Cheryl Cotterill's country is the same as her fathers (see [218], [517]-[518]).
(6) Elvis Stokes's evidence about his father, Arthur Stokes, his father's mother's sister and his grandfather having similar country in the overlap area (see [510]).
(7) Ashley Blake's evidence about his father having similar country in the overlap area (see [513]).
(8) Evidence that Darbin Murphy, Stumpy Edwards and Wobalie Blizzard had important connections to Edjudina and Pinjin in the overlap area (see [633]-[634], [650], [980]).
1050 Evidence about the connection to country of more contemporary persons is further removed from KB's time, and so is less direct proof of the position during that time. But it can still provide support, by inference, as to the position during KB's time. Elvis Stokes's strong and unchallenged evidence to the effect that the Lake Rebecca Area is his country and that 'Edjudina belongs to a big mob of people' (Exh 18 para 19), being a large number of families he names, provides significant support of that kind. Mr Blake's evidence that when he grew up on Edjudina Station a big mob of Wangkayi were coming and going is perhaps less significant, but still relevant. Those people included Darbin Murphy, who had been there a long time. Ivan Forrest, whose life nearly overlapped with KB's, similarly gave unchallenged evidence to be able to speak for country in and beyond the overlap area. Cheryl Cotterill also named a number of families associated with the overlap area.
1051 I accept this largely unchallenged evidence, and since I have concerns about the general reliability of Mrs Nudding's and Mrs Strickland's evidence, I do not accept their denials that these people had and have traditional rights to country in the overlap area. In Mrs Strickland's case, the firmness of those denials eroded somewhat in cross examination.
1052 The Maduwongga applicant seemed to accuse the NP respondent and the State of circularity in their reliance on that evidence. The argument appeared to be that the association of numerous Western Desert people with the overlap area in KB's lifetime could only give rise to those people having rights and interests in the area if it is assumed that Western Desert laws and customs apply in that area in the first place.
1053 I do not accept that argument. The evidence I have summarised establishes convincingly that numerous people during KB's lifetime, including but in addition to KB, held traditional rights to country in the overlap area. That is not a matter of assumption, it is a matter of evidence. The question then becomes, under what normative system did those rights arise? For the reasons explained in the bulk of this judgment, it was not a Maduwongga system, or any other system that was identifiably distinct from the laws and customs of the Western Desert. And these people, including KB, were Western Desert people. The irresistible inference that follows is that the normative system acknowledged and observed by KB, and the other Aboriginal people with whom she associated, was the normative system of the Western Desert. That reasoning involves no circularity.
XIV. THE ANSWER TO THE SEPARATE QUESTION
1054 For all the reasons given in this judgment, I conclude that the traditional laws and customs of the Western Desert were acknowledged and observed in the overlap area during KB's lifetime, and were acknowledged and observed by KB herself. No other normative system of traditional laws and customs has been established as having been acknowledged and observed in the overlap area during KB's time, whether that of a ' Maduwongga' group, or a group of a different name, or of no name at all. KB's rights and interests in the overlap area are likely to have arisen under those Western Desert traditional laws and customs.
1055 The separate question must therefore be answered as follows: KB held rights and interests in those land and waters of the Maduwongga Application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of the Western Desert, and not of a distinct land-holding group of which KB's descendants are the only identifiable surviving members.
1056 I understand that this conclusion will be contrary to the strongly held views of Mrs Nudding, Mrs Strickland and others. That is why I have tried to explain the reasons for the conclusion fully and to explain how it is based, as it must be, on the evidence that has been adduced in this Court, acting as a court of law. It is always regrettable when it is necessary for the Court to make a ruling on matters of this kind, and so inevitably disappoint some. Nevertheless, I record my gratitude to the parties, solicitors and counsel on all sides for the cooperative and pragmatic way in which they approached the process that has led to that ruling.
1057 As has been said, the State and the MG respondent do not seek costs, but the NP respondent has not confirmed its position in that regard. The NP respondent will be given liberty to apply within two weeks in relation to costs.
I certify that the preceding one thousand and fifty seven (1057) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. |
Associate:
Annexure A
Annexure B
Annexure C
Annexure D
Annexure E
SCHEDULE OF PARTIES
WAD 186 of 2017 | |
PATRICIA LEWIS | |
VANESSA THOMAS-DOWDEN | |
LEO THOMAS | |
HECTOR O'LOUGHLIN | |
ASHLEY BLAKE | |
DARREN POLAK | |
RON HARRINGTON-SMITH | |
VICTOR COOPER | |
ELVIS STOKES | |
MR T (DECEASED) | |
Marlinyu Ghoorlie Claim Group Respondents: | |
BRIAN CHAMPION | |
JAMES CHAMPION | |
SIMON CHAMPION | |
HENRY RICHARD DIMER | |
MAXINE PATRICIA DIMER | |
RAELENE PEEL | |
DARREN INDICH | |
Other Respondents | |
TREVOR JOHN BROWNLY | |
CENTRAL DESERT NATIVE TITLE SERVICE LTD | |
SHARON DIMER | |
TREVOR HENRY DONALDSON | |
BARTON CECIL JONES (JUNIOR), AMANDA JANE CECIL JONES, BURCHELL FRANCIS CECIL JONES AND JOHN LOAD CECIL JONES | |
MENANGINA PTY LTD | |
COWARNA DOWNS PTY LTD | |
HAMPTON TRANSPORT SERVICES PTY LTD | |
EVELYN CHRISTINE GAMMAGE AND ANTHONY PHILIP GAMMAGE | |
BJ CAHOOTS PTY LTD | |
MT VETTERS PASTORAL CO (1966) PTY LTD | |
ZENITH AUSTRALIA INVESTMENT HOLDING PTY LTD | |
ANGLOGOLD ASHANTI AUSTRALIA LIMITED | |
APHRODITE GOLD LIMITED | |
BHP NICKEL WEST PTY LTD | |
COOLGARDIE MINING COMPANY PTY LTD | |
DAVENNE HOLDINGS PTY LTD | |
INDEPENDENCE GROUP NL | |
KAILI GOLD PTY LTD | |
KALGOORLIE LAKE VIEW PTY LTD | |
NEWMONT EXPLORATION PTY LTD | |
NORTHERN STAR RESOURCES LIMITED | |
SARACEN GOLD MINES PTY LTD | |
SARACEN KALGOORLIE PTY LIMITED | |
ST BARBARA LIMITED | |
COLIN RICHARD BRADBURY | |
PETALYN FISHER | |
PETER JOHN KERLEY | |
DAVID CHARLES LYONS | |
IAN MITCHELL | |
CRAIG DUNCAN SWAN | |
TELSTRA CORPORATION LIMITED | |
