Federal Court of Australia

Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270

SUMMARY

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

Today the Court makes an order relating to two applications for the recognition of native title in the Goldfields region of Western Australia. The order is made in a case brought by Mrs Marjorie Strickland and Mrs Joyce Nudding. Mrs Strickland and Mrs Nudding are sisters, and together comprise what the Court calls the Maduwongga applicant. They say that their grandmother, whom at their request the Court calls KB, belonged to a group of people called the Maduwongga. The Maduwongga applicant asks the Court to determine that the descendants of KB hold native title rights and interests in relation to a claim area of more than 25,000 square kilometres. The area stretches from its south-western corner near Coolgardie to a north eastern boundary marked by the Edjudina Range.

In a different case brought in this Court another claim group, the Nyalpa Pirniku, are seeking their own native title determination. Part of the country to which they lay claim overlaps approximately the north-eastern third of the Maduwongga claim area. So there is a dispute between the Maduwongga applicant and the Nyalpa Pirniku about who has rights to this overlap area. In the present case, the Nyalpa Pirniku are represented by what the Court calls the NP respondent.

Two other respondents have been active in the case. One is the State of Western Australia. The other respondent represents a third Aboriginal claim group, the Marlinyu Ghoorlie. They also claim an area of country which overlaps the Maduwongga claim area, but in a different part to the Nyalpa Pirniku overlap. Where this summary talks about the overlap area, it means the overlap between the Maduwongga and Nyalpa Pirniku claim areas.

All three of the active respondents dispute the Maduwongga claim. They say, in effect, that there never was a Maduwongga group or 'tribe' which acknowledged and observed its own traditional laws and customs. They say that KB acknowledged and observed the laws and customs which prevailed in a large area that is called the Western Desert. The Nyalpa Pirniku claim native title rights and interests under Western Desert laws and customs.

To help resolve the dispute, the Court made orders for a separate question, that is, it posed a question for the Court to answer formally before the case as a whole is determined. The separate question is:

Did [KB] … 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?

It is not in dispute that KB did hold native title rights and interests to country in the overlap area. The dispute is essentially about which traditional laws and customs gave her those rights and interests. Was it the laws and customs of a society from the Western Desert? Or, was it laws and customs of an Aboriginal society called the Maduwongga?

The Court heard 8 days of evidence and a further two days of opening and closing submissions, where the barristers for the parties argued their cases. The Court travelled to Kalgoorlie and went out to sites in the overlap area, including Edjudina Gap and the ruins of the old Edjudina homestead. Brief hearings were conducted at those places and then the Court sat in the Kalgoorlie Town Hall. It heard from Mrs Strickland and Mrs Nudding and from various members of the Nyalpa Pirniku claim group, including Mr Hector O'Loughlin, Mr Ivan Forrest, Ms Cheryl Cotterill and Mr Elvis Stokes. The Court also heard from a Pilki initiated Law man (wati) and elder, Mr Daniel (Stevie) Sinclair. These people told the Court about many things, including: the meaning of the word 'Maduwongga'; where KB was born and where her country was; the connection of many other people to country in the overlap area; the language spoken in the overlap area; and tjukurrpa or the Dreaming. The Court is grateful to these witnesses for sharing their knowledge.

The Court also heard evidence from two expert witnesses. One was Dr Christine Mathieu, an anthropologist and ethnohistorian who was called by the Maduwongga applicant. The other was Dr John Morton, an anthropologist who was called by the NP respondent. The role of the expert witnesses was to help the Court to understand the evidence before it, including Aboriginal history, customs and laws. The Court does not have to agree with the expert witnesses. Their views are not more important than the evidence of Aboriginal people, just because they are expert witnesses. As explained in the Court's full reasons for the decision, generally the Court favoured the evidence given by Dr Morton over that of Dr Mathieu.

The parties also gave the Court a large number of documents to read and consider. These included notes and other documents prepared by 20th century ethnographers and anthropologists, including genealogy sheets (which are like family trees), journal extracts, and maps. The notes taken in the mid 20th century by the anthropologist Norman Tindale were especially important, because he met KB in 1939 and took down her words.

In the end, the Maduwongga applicant and the NP respondent had the job of convincing the Court to accept the cases they were each putting. That is, they each had a burden of proof. The Court understands that many people on all sides hold strong views about these matters. But in the end the Court can only act on the evidence put before it, as a court of law.

The Maduwongga applicant had to persuade the Court that there was a society in the Maduwongga claim area that was united in its common observance of a distinct body of traditional laws and customs. The Maduwongga applicant also had to persuade the Court that KB was a member of that society, that her descendants are its only members now, and that her rights to country in the overlap area came from those particular laws and customs. The onus was on the Maduwongga applicant to show, by evidence, that all of those things are more likely than not to be true.

On the other side, the NP respondent was claiming that, instead, it was the laws and customs of the Western Desert that were acknowledged and observed in the overlap area during KB's time. As has been said, the NP respondent (and the State) were putting the case that KB was a Western Desert person and that her rights and interests in the overlap area came from Western Desert laws and customs. So it was necessary for the NP respondent (and the State) to establish by evidence that those things were more likely than not to be true.

It has not been easy to make a decision about these things. That is mainly because, as in many native title cases, the parties and the Court have had to reconstruct what happened a long time ago, out of an incomplete historical record. This can make the burden of proof – whose job it is to prove what – especially important. At law, a case will fail if there is not enough evidence to show that it is more likely than not to be true.

The Court's full reasons for judgment explain why it answers the separate question in the way that it does. The reasons are long and cover a large number of factual disputes and a lot of evidence. This summary cannot set all of that out. But the main points which the Court has decided are as follows:

(1)    Where KB is recorded as having used the term 'Maduwongga', or a derivative of that term, she was not referring to a 'tribe' or other society. She was more likely to be telling Tindale about the language or dialect she spoke, which is not necessarily the same thing. Language does not necessarily identify a land-holding group. The use of the name 'Maduwongga' to describe a 'tribe' or other society probably only started in 1994, after the introduction of the Native Title Act 1993 (Cth).

(2)    KB and her parents were not born at Edjudina. It is not possible to say for certain where they were born, but it is likely that they came from spinifex country east of Laverton, outside the Maduwongga claim area. This by itself means that the Maduwongga case has not been made out. That is because for KB to have acquired rights in the overlap area under the laws and customs said to have been observed by the Maduwongga, she would need to have been born there, or at least her parents would have needed to be. Since the Court has found that she was not born at Edjudina, this means that she did not hold rights and interests in the overlap area under any Maduwongga laws and customs.

(3)    Tindale's mapping of a Maduwongga tribe with its own territory was probably wrong. So it cannot be relied upon as evidence of the extent of any Maduwongga territory during KB's lifetime. This lack of evidence that there was a Maduwongga territory makes it less likely that there was a distinct Maduwongga society at that time.

(4)    The Aboriginal language spoken by KB and her descendants was a Western Desert language. While it may have had its own particular features meaning it was a dialect, other people who spoke Western Desert languages could understand it. Also, as has been said, the speakers of the same language (or dialect) do not necessarily make up a land-holding group. Language is not a marker of any distinct Maduwongga society.

(5)    In general, the evidence does not support any difference between laws and customs of a distinctively Maduwongga character, and laws and customs of the Western Desert. In reaching this conclusion, the Court considered ceremonial practices, initiation in the Law, tjukurrpa and responsibility for looking after places of significance.

(6)    Importantly, the evidence does not establish there was ever any distinct body of Maduwongga laws and customs about rights and interests in land. The evidence given by Aboriginal people did not say much about those kinds of laws and customs at all. In the end it depended on the expert evidence of Dr Mathieu. The Court has found that her model of how rights and interests in land arose in the Maduwongga claim area is not convincing. The Court considered evidence about section systems, laws pertaining to marriage and the acquisition of rights and interests in land in reaching this conclusion. This conclusion also means that the Maduwongga case cannot succeed.

(7)    Rather, the laws and customs acknowledged and observed in the overlap area during KB's time were the laws and customs of the Western Desert. That is because Wati Law and tjukurrpa were observed in that area, Western Desert language was spoken there, and there is ample evidence that Western Desert people had country in the area. The Court does not accept the argument that things like Wati Law and tjukurrpa are completely separate to laws and customs relating to rights and interests in land. Rather, their presence in the overlap area is a strong indication that Western Desert laws and customs were acknowledged there.

(8)    Lastly, KB acknowledged and observed those Western Desert laws and customs. She was from the Western Desert, spoke a Western Desert language, and lived and travelled around the overlap area with other Western Desert people. She was able to claim rights and interests in relation to land in the overlap area because of the time she spent there.

As a result, the Court has answered the separate question by saying that KB had rights and interests in the land and waters of the overlap area under the laws and customs of the Western Desert, and not under the laws and customs of a distinct 'Maduwongga' society.

Some of the Court's findings may affect other claims that are not yet resolved. But the decision the Court has reached is not a decision about any of those other claims.

The Court understands that its decision will be welcomed by some but not by others. That is why it has done its best to explain its conclusions in the full reasons that will be published.

JUSTICE JACKSON

27 March 2023