FEDERAL COURT OF AUSTRALIA

Miller v State of South Australia (Far West Coast Sea Claim) (No 4) [2025] FCA 388

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to amend Schedules B and C to the originating application in the terms proposed in annexure TMG1 to the affidavit of Timothy Graham sworn on 29 March 2022 so as to reduce the external boundaries of the claim area.

2.    The applicant has leave to amend Schedule E to the originating application in the terms proposed in annexure TMG1 to the affidavit of Timothy Graham sworn on 29 March 2022 so as to vary the nature and extent of the native title rights and interests claimed.

3.    Leave to amend Schedule A to the originating application in the terms proposed in annexure TMG1 to the affidavit of Timonthy Graham sworn on 29 March 2022 is refused.

4.    On or before 22 May 2025 the first respondent is to file and serve an affidavit proposing a timetable for the progression to trial of all remaining issues, having regard to the answers to the Preliminary Questions set out in [1505] of the reasons published today.

5.    The liberty to apply referred to in [1133] of the reasons published today is to be exercised on or before 22 May 2025.

6.    The matter be set down for a case management hearing on 5 June 2025 at 10.00 am, with one hour set aside.

7.    Liberty to apply.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

INTRODUCTION

1    This is an application for a determination of native title relating to a long and narrow area of the sea off the far west coast of South Australia (Sea Claim Area). The area incorporates sea waters and some islands off a coastal strip commencing at a point in the sea aligning with the border between South Australia and Western Australia (State Border) and ending at a point in the sea roughly aligning with Point Lindsay. The lineal distance between those points is about 500 km.

2    The application is opposed by the State of South Australia, the Commonwealth and several Aboriginal respondents.

3    The persons constituting the applicant in this proceeding are Mr Leonard Miller, Mr Oscar Richards, Mr Alan Haseldine, Mr Clem Lawrie, Mr Purnong Miller, Mr James Peel and Mr Arthur Catsambalas. Under the Native Title Act 1993 (Cth) (NT Act) they together constitute a single applicant and I will refer to them as such. The applicant brings the application on behalf of Aboriginal people collectively referred to as the Claim Group.

4    Subject to the outcome of an amendment application, the Claim Group is defined in substantially the same terms as a group that has previously been recognised as the holders of native title rights and interests in an area of land and waters of some 75,249 km2 (FWC Land Determination Area): Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 (FWC Land Determination). The northern border of the Sea Claim Area abuts the southern border of the FWC Land Determination Area.

5    A determination of native title is defined in s 225 of the NT Act to mean a determination of whether native title exists in relation to a particular area of land and waters and, if it does exist, a determination of (among other things):

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

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

6    Reflecting those parts of the definition, this claim proceeded to trial on separate Preliminary Questions pursuant to an order of White J made on 28 April 2020 under r 30.01 of the Federal Court Rules 2011 (Cth). They are as follows:

But for any question of extinguishment of native title and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth):

(a)    Does native title exist in relation to any and what land and waters of the claim area?

(b)    In relation to that part of the claim area in which the answer to (a) above is in the affirmative:

(i)    who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    what is the nature and extent of the native title rights and interests?

7    The applicant bears the burden of proof on all aspects of the claim. The claim (encompassing the Preliminary Questions) is to be established on the balance of probabilities: Evidence Act 1995 (Cth), s 140.

8    The Preliminary Questions give rise to three overarching issues.

9    The first is whether native title exists in any land or waters in any part of the Sea Claim Area at all. The applicant was put to proof on that aspect of the claim by both the State and the Commonwealth.

10    The second issue arises if native title is shown to exist. The language of the preliminary question in paragraph (b)(i) requires the Court to determine which persons or group of persons hold the common or group rights comprising the native title.

11    The third issue is closely related to the second. It requires the Court to determine the nature and extent of the native title rights and interests that exist in the Sea Claim Area, again with specific reference to the rights and interests asserted by the applicant.

12    The trial of questions that might arise under s 225(c) to (e) of the NT Act (relating to other rights and interests that may exist in the Sea Claim Area and extinguishment) has been deferred. Those issues will only arise if the first of the Preliminary Questions is answered in the affirmative.

13    In accordance with the FWC Land Determination, the native title holders hold their rights and interests in the FWC Land Determination Area in accordance with the traditional laws and customs of three Aboriginal language groups referred to as the “Mirning people”, the “Wirangu people” and the “Kokatha people” who together “comprise the Far West Coast People”. The native title holders include those who are descended, by birth or adoption, from one or more ancestors, referred to as “Kokatha, Mirning and Wirangu antecedents”. There are two other pathways by which people may hold native title rights and interests, discussed elsewhere in these reasons.

14    The principal case of both the State and the Commonwealth is that no native title exists in the Sea Claim Area. Their alternate case is that native title exists in some parts of the Sea Claim Area but is held by a more narrowly described group than that alleged in the originating application.

15    In addition to the defences erected by the State and the Commonwealth, the claim is opposed by a number of Aboriginal respondents, most of whom also fall within the Claim Group description by virtue of their descendancy from a Mirning apical ancestor known as Tjabilja. That respondent group will be referred to as the Bunna Lawrie Respondents.

16    The Bunna Lawrie Respondents dispute the claim on the basis that the Claim Group includes persons who they allege have no native title rights or interests in the Sea Claim Area. Their defence evolved and narrowed in three significant respects. They originally asserted that native title was held by (and only by) a subset of Mirning people in respect of the whole of the Sea Claim Area. By the time of closing submissions, their defence related to a western and middle portion of the Sea Claim Area, they did not oppose a finding in relation to the rights and interests of Wirangu descendants in an eastern and overlapping portion, and an argument founded on notions of exclusive Mirning identity was abandoned. By the closing of the trial, the modified position of the Bunna Lawrie Respondents was generally supported by the State and the Commonwealth as part of their alternative cases, with some minor differences.

17    Another Aboriginal respondent, Mr Michael Laing, contends that the Claim Group has wrongly excluded an apical ancestor from whom he is descended. His case is supported by an additional Aboriginal respondent, Mr Robert Lawrie.

18    The defences of the respondents are described in more detail in Part 4 of these reasons. The collective effect of the defences was to put the applicant to proof on nearly every aspect of the claim.

A GUIDE TO THESE REASONS

19    Before proceeding further, it is important to say something about the nature of the Court’s task. Whilst the Preliminary Questions have been cast broadly, the Court’s focus in answering them has been upon the case presented by the applicant in order to determine whether that case has been established on the evidence and to the requisite standard. That evidence necessarily includes evidence adduced by the respondents which in some ways supported the applicant’s case but in significant ways also undermined it.

20    These reasons contain findings that reject some aspects of the applicant’s case. In many instances those findings are expressed as a conclusion that the evidence was insufficient to establish the case that the applicant put forward, it being the party that bears the onus of proof. In addition, at times I have mentioned a paucity of evidence on a topic in a context where the reason for that paucity may well relate to the swift and harmful impacts of colonisation on the Aboriginal people who occupied the west coast of South Australia and whose ancestors had done so for many thousands of years. I have approached the ethnographic record with a view to supporting findings that are reasonably able to be made and have based some findings on sparse material on issues where there has been little controversy between the parties. It is a regrettable consequence of adversarial litigation that participants in the trial may be left with a sense that the Court’s findings do not reflect the truth on matters of considerable importance to the participants in the trial.

21    In the preparation of these reasons it has been necessary to use some words and phrases to simplify complex and nuanced issues and ideas. More specifically, my references to Mirning people, Wirangu people and Kokatha people should be understood in the context of the reasons as a whole. The words loosely refer to “language groups” but they may wrongly suggest that those groups have a fixed population and membership criteria. As will be explained, the use of language in an area is relevant, but not dispositive of the questions arising at the trial. Similarly, the expressions “Mirning country”, “Wirangu country” and “Kokatha country” are used throughout these reasons, not only because they were employed by all of the parties in the course of the trial but also because they became a convenient way to delineate localities and issues. Those phrases are to be understood against the principle that Aboriginal groups are not nation states with territories defined by fixed boundaries.

22    In the course of evidence, the parties and their witnesses also employed language of “ownership” of country and other language that does not appear in the native title definition. Where those phrases are used in these reasons they are to be understood in the context of the reasons as a whole and not as a substitute for the statutory language.

23    I have attempted to structure the reasons in a way that recognises how the factual disputes are intricately interlinked. It is for that reason that ultimate conclusions on the Preliminary Questions are deferred until very late in the reasons. I have also considered it convenient to summarise most of the lay evidence given by Aboriginal witnesses in a single section that does not devolve into any finding or identify any issue that arises out of their testimony. Their evidence is nonetheless drawn upon in the latter part of the reasons to support findings or to explain why findings sought by a party should not be made.

24    Finally, I have considered it neither necessary nor appropriate to summarise everything said by every expert witness in the proceeding, or to devote any particular portion of these reasons to summarise all of their reports. The expert evidence has been drawn upon on an issue-by-issue basis. In some areas I have acted on the evidence of a single expert in respect of matters that were not the subject of express disagreement by others with the same expertise, without identifying those experts who agreed. The number and length of the reports is such that providing fuller citations would be too burdensome and add little to the outcome on the Preliminary Questions.

25    Given the number of Aboriginal witnesses sharing the same surnames I will be referring to all of those witnesses by their full name.

26    A list of defined terms cross-referenced to the paragraph in which they first appear can be found in Schedule One.

27    Schedule Two contains a table of place names that appear in these reasons. They are listed in that table in an order identifying their approximate distance from the State Border, proceeding in an eastward direction. The distances are measured as a determined bird would fly, proceeding at right angles from the State Border to the place in question. For some inland places a distance is also given to the closest place on the coast.

28    The reasons are otherwise structured as follows:

(1)    Part 1 discusses the definition of native title and some of the case law pertaining to the definition.

(2)    Part 2 describes the Sea Claim Area.

(3)    Part 3 describes the Claim Group both on the originating application and by reference to an application to amend the description.

(4)    Part 4 broadly summarises the issues in dispute.

(5)    Part 5 describes determinations and claims in places on the land in the vicinity surrounding the Sea Claim Area and the broader region.

(6)    Part 6 contains a summary of arguments concerning the legal consequences of the FWC Land Determination for the resolution of questions arising in this proceeding and my conclusions about some of those arguments.

(7)    Part 7 describes the conduct of the trial and the sources of evidence before the Court.

(8)    Part 8 explains some issues relating to evidence and procedure.

(9)    Part 9 traces key historical events on the land abutting the Sea Claim Area including some of the impacts of colonial settlement.

(10)    Part 10 contains summaries of the affidavit and oral evidence of Aboriginal witnesses.

(11)    Part 11 contains some impressions of the Aboriginal witnesses.

(12)    Part 12 discusses the traditional laws and customs asserted by the applicant by reference to the proposed amended Claim Group description.

(13)    Part 13 contains some findings concerning the traditional laws and customs relating to the possession of rights and interests in the Sea Claim Area prior to effective sovereignty.

(14)    Part 14 contains some consideration of expert and other evidence concerning native title societies.

(15)    Part 15 contains findings concerning physical access to the Sea Claim Area prior to sovereignty culminating in a definition of the Accessible Area.

(16)    Part 16 contains findings concerning mythology and other aspects of asserted spiritual connection to the Sea Claim Area.

(17)    Part 17 contains findings concerning the locales associated with language groups prior to effective sovereignty and in the present day.

(18)    Part 18 identifies core rights and interests existing in the Accessible Area and identifies the holders of those rights and interests.

(19)    Part 19 resolves disputes concerning the existence of other rights and interests in the Accessible Area.

(20)    Part 20 contains findings about the continued observance of the laws and customs under which native title is possessed and findings concerning the continuing connection of core rights holders.

(21)    Part 21 contains further findings concerning the nature and extent of the native title holders.

(22)    Part 22 discusses the position of the Bunna Lawrie Respondents concerning the asserted existence of a separate society for the purposes of the NT Act.

(23)    Part 23 summarises the outcome on the application to amend the originating application.

(24)    Part 24 sets out the answers to the Preliminary Questions based on the findings contained elsewhere in the reasons.

PART 1:  THE DEFINITION OF NATIVE TITLE

29    In these reasons I will return to legal principles as and when the contested issues arise for consideration. For now it is convenient to introduce some broad principles against which the parties’ positions as a whole (and especially concerning the forensic significance of the FWC Land Determination) may be understood.

30    Native title is recognised, and protected, in accordance with the NT Act: see s 10.

31    The NT Act applies to the coastal sea of Australia and to any waters over which Australia asserts sovereignty under the Seas and Submerged Lands Act 1973 (Cth) (SSL Act): NT Act, s 6. Section 253 of the NT Act defines “waters” to include the sea, a tidal inlet, a bay, estuary, subterranean waters, and the shore and subsoil under the shore between the high water mark and the low water mark. The phrases “high water” and “low water” are not defined. The Sea Claim Area falls within that geographical reach.

32    The title that is protected is that defined in s 223, which defines the phrases “native title” and “native title rights and interests” relevantly as follows:

Common law rights and interests

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

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

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

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

Hunting, gathering and fishing covered

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

…

33    As in all determination applications, the definition requires a careful analysis of the source of the rights and interests asserted by the Claim Group.

34    The text of the definition requires that the rights and interests are possessed (in the present tense) under laws acknowledged and customs observed (again in the present tense) by the Aboriginal people. The laws and customs must be “traditional”. The Aboriginal people must have a connection with the land and waters concerned by those laws and customs. In addition, the rights and interests must be recognised by the common law of Australia. Case law in relation to each of those elements assists in understanding their meaning.

35    As Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ explained in Fejo v Northern Territory (1998) 195 CLR 96 (at [46]), native title has its origins in the traditional laws acknowledged and the customs observed by the indigenous persons who possess it. It is not an institution of the common law, nor is it a form of common law tenure. However, as s 223(1)(c) of the NT Act makes plain, it is a form of title that is recognised by the common law and there is therefore (as their Honours explained at [46]) “an intersection of traditional laws and customs with the common law”.

36    The emphasis on traditional laws and customs in s 223(1)(a) and s 223(1)(b) reflects the reasoning of the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)): the rights and interests recognised by the common law are those pre-existing rights and interests held at the time that the British Crown asserted sovereignty over the colonies and that survived both the assertion of sovereignty and the acquisition of radical title over the annexed land and waters that came with it. It is largely for that reason that the focus in applications of the present kind is initially upon the rights and interests held by the ancestors of the present day claimants, especially (but not exclusively) in cases where the rights and interests are said to be transmissible by descent under Aboriginal traditional laws and customs.

37    In Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, the High Court emphasised that laws and customs under which native title rights and interests are held must be of a normative character. It was in that case that the word “society” was employed to refer to the body of persons united in their observance of a body of law and customs. The requirement that laws and customs have a normative content assumes some significance in the present case. However, it is to be borne in mind that the word “society” does not appear in the native title definition. Considered in the context of Yorta Yorta, the word assists in analysing whether rights and interests asserted by the Claim Group in the Sea Claim Area are held under Aboriginal laws and customs that are presently acknowledged and observed, and that are traditional in the sense that they predate the assertion of sovereignty. It is under those laws and customs that native title rights and interests are possessed. Conversely, rights and interests in land and waters will not meet the description of native title rights and interests if they are not held under Aboriginal traditional laws and customs.

38    The Full Court (Finn, Sundberg and Mansfield JJ) in Bodney v Bennell (2008) 167 FCR 84 further explained the concept of a “society” and the related concept of “connection”, as that word is used in s 223(1)(b) of the NT Act. It is preferable to extract that summary in full as a correct statement of the law:

46.    Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta HC) draws attention to three separate but related concepts:  society; laws and customs; and rights and interests. The first is not found in the Act, but is referred to at length in Yorta Yorta HC. The second and third are related in the manner first explained by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58 (Mabo (No 2)). In Yorta Yorta HC 214 CLR 422 the majority said at [49] that ‘law and custom arise out of and, in important respects, go to define a particular society’, and that ‘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’. At [50] the majority said that ‘to speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs’. Their Honours spoke of the traditional laws and customs as constituting a normative system which possesses normative rules which give rise to rights and interests in relation to land and water.

47.    Because it is the normative system that is the source of the rights and interests, it is necessary in order to prove native title that the normative system 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:  Yorta Yorta HC 214 CLR 422 at [47]. It is therefore necessary for native title claimants to show that the normative system that existed at sovereignty is substantially the same as the one that exists today. If it is not, then any rights and interests are not ‘possessed under the traditional laws acknowledged and traditional customs observed’.

39    Their Honours went on to discuss the requirement in s 223(1)(b) of the NT Act, describing it as an element that was “linked with the requirement of continuity”, in the sense that it could be maintained by the continued acknowledgment of traditional laws and observance of traditional customs (at [48]), citing Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (Alyawarr FC) (at [92]).

40    In Western Australia v Ward (2000) 99 FCR 316 (Ward FC) the Full Court emphasised (at [243]) that spiritual connection with land and waters could be maintained in circumstances where physical presence had ceased:

Actual physical presence upon the land in pursuit of traditional rights to live and forage there, and for the performance of traditional ceremonies and customs, would provide clear evidence of the maintenance of a connection with the land. However, the spiritual connection, and the performance of responsibility for the land can be maintained even where physical presence has ceased, either because the indigenous people have been hunted off the land, or because their numbers have become so thinned that it is impracticable to visit the area. The connection can be maintained by the continued acknowledgment of traditional laws, and by the observance of traditional customs. Acknowledgment and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.

41    More recently, the High Court in Stuart v South Australia [2025] HCA 12 (Stuart HC) reiterated that the connection required by s 223(1)(b) of the NT Act need not manifest itself in physical presence or tangible activity. As the plurality explained (at [22]):

The connection required by s 223(1)(b) is between Aboriginal peoples or Torres Strait Islanders and land or waters. Because the ‘connection’ for the purposes of s 223(1)(b) is to be ‘by [the] laws and customs’, it does not need to be a physical connection with the claim area. The nature of the ‘connection’ will depend on the ‘laws and customs’. That is, if the laws and customs demonstrate that connection with the relevant land and waters is generally by undertaking physical acts of acknowledgment or observance within the area of those land and waters, then establishing a connection may depend on whether such acts were performed. But equally, if the laws and customs demonstrate that connection may be established other than by physical acts of acknowledgment or observance within the relevant area, then such acts may not be necessary to demonstrate ‘connection’.

42    The plurality approved this statement of principle in Stuart v State of South Australia (2023) 299 FCR 507, in which O’Bryan J summarised the relevant authorities (at [290]):

The primary judge explained (at [51]) the ‘connection’ element of the definition in s 223(1)(b) primarily by reference to the statements of principle of the High Court majority in Ward and the Full Federal Court in Bodney. The following principles emerge from those decisions:

(a)    Paragraphs (a) and (b) of s 223(1) involve two inquiries: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs (Ward at [18] and Bodney at [165]). Each element is sourced in the traditional laws acknowledged and the traditional customs observed by the claimants in question (Bodney at [165]). The connection required by para (b) is not by the claimants’ rights and interests in the land or waters in question, but by their laws and customs acknowledged and observed (Bodney at [165]).

(b)    The connection which Aboriginal and Torres Strait Islander peoples have with ‘country’ is essentially spiritual:  Ward at [14]. The majority in Ward further explained (at [64]):

In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a ‘connection’ with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a ‘connection’ of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection.

(c)    As the required connection of the claimants to the land or waters in question is by the traditional laws and customs acknowledged and observed, it is necessary to show that the acknowledgment and observance of the laws and customs must have continued substantially uninterrupted from the time of the assertion of British sovereignty in the sense explained in Yorta Yorta (Bodney at [168], [179]).

(d)    In Bodney, the Full Court cited with approval (at [166]) the earlier observation of the Full Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at [111] that connection ‘involves the relationship of the relevant community to its country defined by laws and customs which it acknowledges and observes’. The laws and customs themselves characteristically will presuppose or envisage direct connections with land or waters or will, if acknowledged and observed, link community members to each other and to the land or waters in a complex of relationships (Bodney at [169]). Further, laws and customs that connect claimants to land or waters need not be exclusively ones that give the claimants rights and interests in the land or waters (Bodney at [169]).

(e)    Connection to land or waters may have subsisted at a spiritual and/or cultural level notwithstanding that the claimants have not been able to maintain a presence on substantial parts of their traditional lands or waters (Bodney at [172]).

43    The plurality went on to say (at [24]):

The parties and the Commonwealth agreed that the Full Court of the Federal Court in Bodney v Bennell correctly identified and explained the applicable principles. The Full Court said that:

‘It is well accepted that an effect of European settlement on Aboriginal communities was often enough to render it impracticable for them to maintain a traditional presence on substantial parts of their respective lands. However, it is equally accepted in decisions of this Court that such impracticability does not necessarily mean that the surviving members of such a community have not substantially maintained their connection with their land ... It may have subsisted at a spiritual and/or cultural level ...’

Put in different terms, establishing ‘connection’ requires identifying the nature of the laws and customs by which that ‘connection’ arises but proving that ‘connection’ may not depend on evidence of physical acts of acknowledgment or observance in the claim area.

(footnotes omitted)

44    It is important to emphasise that the rights and interests referred to in the native title definition are native title rights and interests in relation to land or waters. On an application of the present kind, that is a location specific enquiry. The focus is on rights and interests in relation to the particular land and waters that form the subject of the application, and not on some other place or related to some other societal order unrelated to land or waters. In addition, as French J stated in Sampi v State of Western Australia [2005] FCA 777 (Sampi First Instance) (at [960]), the reference to the acknowledgement of traditional laws and the observance of traditional customs “avoids any need to distinguish between law and custom or to engage in nice analysis of the difference between legal rules and moral obligations”. However, “[t]here must nevertheless be some sort of ‘rules having normative content’ without which there may merely be observable behaviour patterns but no rights or interests in relation to land”.

45    Section 223(1)(c) of the NT Act contains a criterion that the rights and interests be recognised by the common law of Australia. There are two features to that requirement, as Gleeson CJ, Gummow and Hayne JJ explained in Yorta Yorta (at [77]):

The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law.  …  Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interest which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are ‘recognised’ in the common law.

(footnote omitted)

46    In the present case it has not been suggested that there is antithetical inconsistency between the Claim Group’s asserted rights and interests and the common law. The claim is not inconsistent with laws relating to the territorial seas or the sea beds in the Sea Claim Area, nor is the claim inconsistent with public navigation rights, rights of innocent passage or rights to fish under the common law. Non-exclusive native title rights and interests can be recognised in Australia’s territorial sea (12 nautical miles from the coastline): Commonwealth v Yarmirr (2001) 208 CLR 1, Gleeson CJ, Gaudron, Gummow and Hayne JJ (at [6]).

47    The second aspect of common law recognition looms large because the parties are in dispute about the rights and interests that existed in the Sea Claim Area at sovereignty and as to whether those rights and interests (if they existed) survived the “fundamental change in legal regime” to which Gleeson CJ, Gummow and Hayne JJ referred.

48    As explained in Yorta Yorta, traditional laws and customs may undergo significant adaptation yet retain their character as traditional. However, it remained that the content of the laws or customs was “to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown” and that normative system must have “continuous existence and vitality since sovereignty”: Yorta Yorta (at [46], [47]).

PART 2:  THE SEA CLAIM AREA

49    I have already identified that the northern boundary of the Sea Claim Area is contiguous with the southern boundary of the FWC Land Determination Area and falls within the application of the NT Act. The common boundary between the FWC Land Determination Area and the Sea Claim Area follows an unplotted line defined by the location of the “Lowest Astronomical Tide”.

50    As an expert witness (Professor Hesp) explained, the Lowest Astronomical Tide is the lowest tide level which can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions.

51    The Highest Astronomical Tide is the highest point the tide may reach in those conditions. As such, on the seaward side of the Lowest Astronomical Tide it will always be wet, and on the landward side of the Highest Astronomical Tide it will always be dry. No other party took issue with those descriptions and I will base these reasons upon them.

52    Between the Lowest Astronomical Tide and the Highest Astronomical Tide is the Intertidal Zone. Being on the landward side of the Lowest Astronomical Tide, the Intertidal Zone falls wholly within the FWC Land Determination Area. Within the Intertidal Zone it will sometimes be wet and sometimes dry.

53    The Littoral Zone is an area described in the State’s submissions as encompassing the Intertidal Zone and an area extending seaward from the Lowest Astronomical Tide to a depth of 2 m. In these reasons I use the description in the sense employed by the State because it marks out its position on an alternative case as to where native title rights and interests exist and where they do not. It is not necessary to identify any accepted scientific meaning for the description. It is intended by the State to describe the point to which they allege Aboriginal people prior to sovereignty could conceivably walk and wade to collect marine resources without the use of modern technology (other than in some inaccessible places).

54    On the State’s definition, there is a part of the Littoral Zone that falls within the Sea Claim Area. The distance that might be measured between the Lowest Astronomical Tide and the point in the sea where a depth of 2 m occurs will differ from place to place and necessarily involves a great deal of imprecision.

55    It is common ground that as climatic conditions change, the coordinates that might be plotted along the line representing the Lowest Astronomical Tide might also change. In other words, the seaward boundary of the FWC Land Determination Area is always shifting, as is the landward boundary of the Sea Claim Area, represented by the same line. The line may nonetheless be ascertained in accordance with that description at any particular place at any particular point in time. There is no survey of where the line forming the Lowest Astronomical Tide may presently be drawn. It was able to be calculated on the day that the FWC Land Determination was made but was not in fact calculated or plotted at that time. Nor has it been plotted since.

56    In evidence is a book of maps depicting the Sea Claim Area with the approximate location of the Lowest Astronomical Tide appearing as a blue line (LAT maps). For the purposes of the trial, the blue line was assumed to depict the Lowest Astronomical Tide in the areas shown in the LAT maps. There is then this “Agreed Fact” concerning that blue line:

Agreed Fact

The blue line displayed on the lowest astronomical tide (LAT) mapping contained in FWCSC Book of Maps Vol II is indicative of, and a guide to, the LAT. The LAT has been marked on those maps based on satellite height datum data, and not on a survey of the relevant coastline, assessment of the relevant intertidal regions or review of historical tide data. The LAT is not a fixed position and changes in accordance with environmental and climactic conditions over time.

57    The document containing that agreement was executed by the active parties in the proceeding except for Michael Laing and Robert Lawrie. Neither of those respondents took issue with any of the matters referred to in it or agitated the question of precisely where the external boundaries of the Sea Claim Area lie. If the document containing the agreed fact does not constitute an agreement between all of the parties within the meaning of s 191 of the Evidence Act, I would receive it in any event as a document necessary to consider the maps adduced in evidence in their proper context. In addition, the LAT maps are the best evidence of the location of the Lowest Astronomical Tide and I have relied upon them to the extent that they inform the factual questions to be decided.

58    Whilst this claim relates to an area in the sea, much of the evidence concerned a body of Aboriginal traditional laws and customs appertaining to the adjacent coastal land. The index to place names is intended to assist the reader of these reasons to situate places falling within the Sea Claim Area and the FWC Land Determination Area with some understanding of their relative distance from each other. The locations of places will assume some significance later in these reasons when considering the respondents’ defences. Some places assume more significance in the evidence than others. They will be separately described below.

Amendments to the Sea Claim Area

59    When this proceeding was first commenced on 9 March 2016, it encompassed a much larger area extending three nautical miles (5.556 km) into the sea from the Lowest Astronomical Tide. By an amendment made in 2021, the seaward extent of the claim area was modified, so as to greatly reduce its seaward extent. The seaward distances (measured from the Lowest Astronomical Tide) now range between 30 m and 300 m.

60    By an interlocutory application filed on 28 February 2022 (as amended on 29 March 2022) the applicant applied to further amend the originating application for a number of purposes, including to reduce the eastern boundary of the area in respect of which a native title determination was sought. There is a question as to whether or not a native title claimant requires leave to make an application of that kind: see Champion v State of Western Australia [2009] FCA 1141 (at [16] – [20]) and Torres v State of Western Australia [2012] FCA 972. On the assumption that leave is required, I would readily grant it because it serves to narrow the issues in dispute. For certainty there will be an order reflecting that grant. The leave is granted notwithstanding that White J has previously held that the persons comprising the applicant were not authorised to commence the originating application in its original form: Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 (Miller (No 2)).

61    The effect of the amendment is that the eastern most point of the Sea Claim Area is now close to the end of Acraman Creek Conservation Park near Point Lindsay. Some waters and islands adjacent to Streaky Bay are no longer in issue in the proceeding, nor is an island named Eba Island in that vicinity. Evidence concerning the area near Streaky Bay may nonetheless be taken into account to the extent that it informs the Preliminary Questions. Most of the affidavit evidence and expert reports were prepared prior to the application to reduce the Sea Claim Area at its eastern boundary, which explains why at times there was a focus on places to the east that are no longer in contention. An area of eastern waters surrounding St Peter Island (in the vicinity of Decres Bay) and Eyre Island (in the vicinity of Smoky Bay) remains in contention.

62    Against that background, the Sea Claim Area can be more specifically described as follows.

63    Length-wise the Sea Claim Area covers a vast distance between its westward and eastward boundaries. I have already mentioned that it has the Lowest Astronomical Tide as its northern boundary. Its southern boundary can be described in terms of varying distances from its northern boundary. Those distance vary as follows:

(1)    from the western most end (aligned with the State Border) to a point near Head of the Bight, the distance is 30 m;

(2)    from that point to a point near Point Peter the distance is 100 m; and

(3)    from that point to the eastward boundary of the Sea Claim Area the distance is 300 m, except for an area around a southern portion of St Peter Island, where the distance is 50 m.

64    The township of Eucla in Western Australia falls outside and to the west of the FWC Land Determination Area and is not within the Sea Claim Area. However, all parties referred to evidence relating to the region around Eucla as relevantly informing the enquiry, particularly in ascertaining the identity of the Aboriginal persons who were in occupation of the western most portion of the FWC Land Determination Area (and hence in the vicinity of certain coastal waters) at sovereignty. The broader region of Eucla was referred to at times to encompass Merdayerra Sandpatch in the western most part of South Australia.

65    The evidence otherwise dealt with many other places within and outside of the FWC Land Determination Area, all parties inviting the Court to accept or reject inferences that may be drawn by reference to facts and circumstances existing there.

66    At times the trial of the Preliminary Questions appeared to relate more to the land than to the sea and these reasons may at times convey the same impression. That is a consequence of how the parties presented their cases, each of them asking the Court to draw inferences about the sea by reference to facts and circumstances pertaining to the land.

Topography of the coast

67    The topography of the land and the nature of the waters differs greatly along the west coast of South Australia. The portion of the coast adjacent to the Sea Claim Area is no different. The differences in the seaward reach of the Sea Claim Area vary in a way that follows variations in those topographical features. Broadly, the landed area and coastal waters can be considered in three parts. The eastern portion is characterised by calmer waters within sheltered bays and inlets. It is a flat landscape proceeding to the sea waters. In the sea waters there are rocky outcrops and reefs that become exposed to different extents as the tides change. Whilst the whole of the region is dry, the eastern portion has a less arid landscape than that in the west. Whilst the waters in the sheltered bays and inlets can be calm, outside of those areas the wave energy can be very high.

68    The eastern portion of the land and waters described above encompasses an area from the eastern end to the vicinity of Fowlers Bay near Head of the Bight (also known as Ilgamba). The witnesses spoke of a number of beaches in this region, including Jerry’s Beach, Coombara, Yalata Beach, Dog Fence and Sandy Beach or Long Beach (which is over 100 km long). The bays between Fowlers Bay (roughly in the centre of the coastline associated with the Sea Claim Area) and Streaky Bay are referred to as “Chain of Bays”. Within the broader Fowlers Bay area is Clare Bay, a raised landscape featuring a low cliff at the base of which is a formation appearing like the back end of a whale. The eastern region also encompasses the townships of Ceduna and nearby Thevenard, where the annual rainfall is just 300 mm (concentrated in the winter months).

69    Near Head of the Bight there commences a very different land and sea scape for the whole expanse of the Bunda Cliffs. They are described in more detail elsewhere in these reasons. There are no bays or inlets for the expanse of the cliffs of the kind found in the eastern areas of the coast, although in places there are protrusions at their base caused by rockfalls. The cliffs face the Southern Ocean. The sea abuts the base of the cliffs and there are no sandy beaches. Witnesses told of caves in the cliff faces.

70    Proceeding northward from the expanse of the cliffs there are three regions discussed in the evidence. At the top of the cliffs there is a vegetated coastal strip of some 20 or so kilometres, which meets the southern end of the Nullarbor Plain. North of the Nullarbor Plain is a region of desert country, merging into what is known as the Western Desert. There are no lakes or rivers in the area and annual rainfalls are very low. This combination of cliffs, plain and desert led one early commentator to describe Aboriginal people in the western portion of the land abutting the Sea Claim Area as being “hemmed in”. As an expert witness (Mr Graham) put it:

Picking up on observations from Williams, and Bates, Wright essentially sees people in the western region as hemmed in between the coast and the Nullarbor. (Smith’s overview noted earlier is largely the same.) The former has an ‘ameliorating effect’ on an area extending some sixteen kilometres inland where, ‘... this coastal belt receives more rainfall and, in the summer, reaches lower temperatures’. D.E. Symon in his study of the vegetation surrounding Koonalda Cave describes a ‘scrub belt’ being a ‘relatively narrow belt of mallee and Acacia scrub about fourteen miles wide’ between the coast and the treeless plain to the north determined by wind, rainfall and evaporation, (Symon, 1971:17) and explained:

Bates notes the squeezing effect which increasing aridity had their flexibility of movement (Wright 1971b:5).

The notion that these hundreds of square miles were unused [i.e. the ‘northerly treeless zone’] by Aborigines was formed well before Bates’s accounts. Williams (Curr 1886;400) says that the Plain was shunned so that, ‘it practically binds them as rigidly on the north as the sea does on the south’ (ibid:12).

Even so, I must emphasise two factors important in the human environment – the dearth of surface water and the rapidly increasing severity of the climate northwards (Wright1971a:106).

71    The Bunda Cliffs continue to a point about 50 km from the State Border, in the region of Wilson’s Bluff. The cliffs taper off into a landscape characterised by rolling sand dunes and vegetation. In the region near the State Border is a dune and beach landscape known as Merdayerra Sandpatch, spanning about 30 km. That area was discussed in the evidence as forming a part of the broader Eucla region, Eucla being both a township in Western Australia but also a place that had significance to Aboriginal people before colonisation. The Court heard that the name Eucla derives from Yirgarla, which is a Mirning word for Morning Star or Venus.

PART 3:  THE CLAIM GROUP

72    The Aboriginal people who are said by the applicant to hold native title rights and interests in the Sea Claim Area are described in a proposed amended originating application annexed to an affidavit filed on 29 March 2022. The description is here set out in full with the proposed amendments underscored:

Under the relevant traditional laws and customs of the Kokatha, Mirning and Wirangu who comprise the Far West Coast People, the native title claim group members are those living Aboriginal people who:

A.    (i)  are descendant, either through birth or adoption, from one or more of the following Kokatha, Mirning and Wirangu antecedents:  Bingi; Eliza Ellen (Ware); Maggie, mother of Jimmy Scott; Yari Wagon Billy; Koigidi and Anbing; Kulbala; Eva and Pompey; Jinnie (Dunnett); Yabi Dinah; Siblings Nellie Gray, Dhubalgurda Frank Gray and Kwana Teddy Gray; Bobby Wandrooka; Wirangu mother of Jimmy and Arthur Richards; Wirangu mother of Ada Beagle; Tjabilja (Lawrie); Sally Broome; Mark Mirka Kelly; Tommy Munia; Peter and Nellie Tjubedie; Binilya and Kaltyna; Topsy (Miller); Harry Yari Miller, son of Maggie Burilya; Maggie lnyalonga (Miller); Billy Danba (Dunbar) and Topsy; Billy Benbolt and Fanny; Judy (Struthers); Nellie (Betts); Emma (Bilney); Jimmy Blueskin; Jack McCarthy; Eva Nudicurra (Modikari); Marangali Jim Young and Lucy Mundy; Betsy (affinal links to Tjuna family); Siblings, Milaga (affinal links to Tjuna family) and Munjinya; and Toby Ngampija Roberts, son of Moonlight Lightning; or

(ii)  are descendant, either through birth or adoption, from any other person acknowledged by the native title claim group as a Kokatha, Mirning or Wirangu antecedent where the antecedent was born on or near the Application Area at or around the time of sovereignty:

AND who are recognised by other native title claim group members under the relevant traditional laws and customs of the Far West Coast Peoples as having realised their rights through knowledge, association and familiarity with the Application Area gained in accordance with the laws and customs of the native title claim group, and therefore as holding native title rights and interests in the Application Area: or

B.    were born within or near the Application Area and have gained knowledge of the land and waters of the Application Area in accordance with the traditional laws and customs of the native title claim group, and are recognised by other native title claim group members under their relevant traditional laws and customs as having native title rights and interests in the Application Area; or

C.    have mythical or ritual knowledge and experience of the Application Area and have responsibility for the sites and strings of sites within the Application Area that are associated with the Tjukurpa (Dreaming) and are recognised by other native title claim group members under their relevant traditional laws and customs as having native title rights and interests in the Application Area.

73    As can be seen, the asserted native title rights and interests are claimed to owe their existence to the “relevant traditional laws and customs of the Kokatha, Mirning and Wirangu who comprise the Far West Coast People”.

74    In the proposed amended version, the Claim Group is defined in a way that provides for three “pathways”, being those specified in paragraphs A, B and C of the description. They will be referred to as Pathway A, Pathway B and Pathway C respectively. Pathway A is in two parts, Pathway A(i) and Pathway A(ii).

75    Each of the pathways includes a condition that the native title holder be recognised “by other native title Claim Group members” as having native title. That proposed amendment is itself a subject of controversy and may be referred to as the Mutual Recognition Condition.

76    The Court was told that the additions proposed to the Claim Group description (as underscored) were intended to ensure that any determination of native title made in this proceeding wholly replicates the description of the native title holders as it appears in the FWC Land Determination. An exception is the addition of the phrase “or near” in paragraph B, the applicant acknowledging that there is no person known to have been born on an area comprised of sea waters or islands falling within the Sea Claim Area.

77    In oral submissions on the first day of trial, Counsel for the applicant said that the application to amend the description of the Claim Group was unnecessary and that the application was not pressed because it would cause “a tremendous amount of impost on the Native Title Tribunal and the Court”. Counsel said that the only amendments sought were those to the claim area boundary and to the description of native title rights and interests. Counsel invited the Court to decide the case “based on what our Schedule A says”, being a reference to a schedule attached to the application as originally filed. I understood the amendment application to have been abandoned to that extent and, when I sought some clarity, Counsel again confirmed that was so.

78    Notwithstanding that express abandonment the application was later revived. The parties made submissions about the sufficiency of the evidence to prove the applicant’s claim, both by reference to the Claim Group as originally described and in some respects by reference to the amendments that had earlier been proposed. The oral testimony of expert witnesses addressed them too. By the time of closing submissions all parties proceeded on the basis that the amendment application remained on foot. No party suggested that it was necessary to rule on this aspect of the amendment application before the trial could proceed and none of the respondents suggested that the amendment application should be dismissed because they were prejudiced by the application being made at such a late stage. As I have mentioned, the Preliminary Questions proceeded to trial in which the proposed amendments were dealt with on questions of fact and law, all respondents having had the opportunity to adduce evidence and make submissions in respect of it.

79    Notwithstanding those observations, I have concluded that the applicant should not have leave to amend the Claim Group description. The reasons for that conclusion will be given in the course of resolving the substantive issues that arose at the trial of the Preliminary Questions. In the pages that follow I will explain why I consider the amended description to be ambiguous in part, and otherwise unsupported by sufficient evidence. In the circumstances, I have not considered it necessary to determine whether the amendment should be disallowed by virtue of it amounting to the bringing of a new claim with an enlarged claim group which the persons comprising the named applicant are not authorised to bring. It follows that no occasion arises to consider whether and how I would have exercised the discretion under s 84D of the NT Act to permit the amended case to go to trial in the absence of authorisation.

80    If I am wrong in characterising the proposed amended case (relating to the Claim Group description) as having no reasonable prospects of success, then I would in any event have dismissed any amended claim on its substantive merits. As explained elsewhere in these reasons the applicant would have failed to discharge the burden of proof in respect of it.

PART 4:  THE ISSUES

81    In accordance with case management orders, each active party filed a statement of facts, issues and contentions (SFIC), as well as concise responses to the cases advanced against them. I will refer to them as “pleadings” as they served a similar (but not identical) purpose.

82    The parties’ respective cases were also defined by their opening submissions and later narrowed or clarified in their closing submissions and further supplementary written submissions and expert reports. The general issues in dispute give rise to a multitude of factual questions that will become apparent in due course. My intent at this stage is to give a general and necessarily incomplete description of the parties’ cases to give some introductory context only.

The applicant

83    The applicant submitted that any native title rights and interests held by Aboriginal people in the sea necessarily and logically had to arise from their rights and interests in the immediately adjacent land, as they did not “live” in the water. It was submitted that the coastal waters in the region were and are inseparable from the adjoining land and should be considered an extension of the land in which native title has already been determined. The applicant’s principal submission was that it would be inconsistent with the FWC Land Determination (and therefore illogical or legally impermissible) for the Court to conclude that no native title exists in the Sea Claim Area, or to conclude that native title rights and interests existing in the Sea Claim Area are held by persons other than those who hold native title in the immediately abutting land and waters. The illogicality is said to arise by reason of the Sea Claim Area being such a narrow slither in width together with the shifting and artificial nature of the Lowest Astronomical Tide such that the coastal waters should be regarded as an arbitrary line unknown to Aboriginal people, with the sea waters on one side of it being no different to the sea waters on the other.

84    The applicant contended that an effect of the FWC Land Determination was that persons comprising the “Far West Coast people” must be regarded as an Aboriginal society existing at sovereignty, the present day existence of which cannot be disputed. They alleged that the persons determined to hold native title in respect of the land did so “communally”, and that it must therefore be inferred that each of them held the native title rights in the whole of the Sea Claim Area just as they did in the whole of the FWC Land Determination Area. They emphasised the absence of any competing claim for native title on the seaward or landward external boundaries of the Sea Claim Area. They submitted that the reasons accompanying the FWC Land Determination contained findings of fact in relation to critical issues and that those facts could not be contested, contradicted or undermined by evidence adduced in this proceeding, or orders made by the Court.

85    Broadly summarised, the applicant’s pleaded case was as follows:

(1)    At effective sovereignty, the Sea Claim Area was occupied and used by the ancestors of the Claim Group who, for native title purposes, constituted a “single regional society”.

(2)    The Claim Group could be seen as comprised of members of “interrelated and interpenetrating societies, who acknowledged and observed the same or a substantially similar body of laws and customs relating to rights and interests in the land and waters of the application area”.

(3)    The Aboriginal persons who occupied and used the Sea Claim Area at sovereignty were “Wirangu, Mirning and Kokatha people”.

(4)    Members of the language groups form constituent members of a single regional society in that, between members of the Claim Group, there exists a commonality of laws, customs, religious and spiritual beliefs and kinship, such that “they form one integrated polity” for the Sea Claim Area.

(5)    There was intermarriage and consociation between them, in that they shared important spiritual beliefs and ritual and ceremonial practices (including male initiation and the utilisation of scared objects and tools).

(6)    The most important of those spiritual beliefs was a belief in the creative period of the Dhoogoor or Tjukur.

(7)    The Dhoogoor “explains the creation of the ocean, its resources and occupants and provides normative rules by which people relate to and conduct themselves in relation to the ocean and the islands within it”.

(8)    Descent-based rights in the Sea Claim Area may be inherited either through the mother or the father.

(9)    There is a further commonality of customs and beliefs shared with “the Western Desert peoples to the north of the [Sea Claim Area], many of whom reside in Yalata, Oak Valley and Tjunjuntjara”.

(10)    The laws and customs have adapted over time following European settlement but are nonetheless based in tradition and customary practices of the Claim Group.

86    In closing submissions, the traditional laws and customs under which the asserted native title rights and interests are held were articulated in more detail and are extracted in Part 12 of these reasons.

87    The applicant contended that through the continued acknowledgment and observance of traditional laws and customs and through their close physical and spiritual connection with the Sea Claim Area, the members of the Claim Group are connected with the Sea Claim Area for the purposes of the definition in s 223 of the NT Act.

The asserted native title rights and interests (as amended)

88    There was no opposition by any respondent to a further proposed amendment revising the description of the nature of the rights and interests said to be held by the Claim Group. That amendment will be allowed. Its effect is to add to the description of the rights and interests in Schedule E, paragraph (c) of the originating application resulting in the following description:

The nature and extent of the native title rights and interests claimed in relation to the application area are the non-exclusive rights to use and enjoy the land and waters in accordance with traditional laws and customs being:

a)    the rights to access, to remain in and to use the application area; and

b)    the right to access resources and to take for any purpose resources from the application area; and

c)    the right to care for, maintain and protect sites and places of significance, including places of spiritual or cultural importance, in accordance with the traditional laws and customs of the native title claimants.

Bunna Lawrie RespondentsRespondents

89    The Bunna Lawrie Respondents are Bunna Lawrie, Dorcas Miller, Rose Miller, and Robert Miller. Meegan Sparrow was previously included but has since ceased to be a party

90    Each of the Bunna Lawrie Respondents identifies as a Mirning person. I have already mentioned that they are descended from the apical ancestor Tjabilja. They are each native title holders in accordance with two prior determinations of native title in the vicinity of the Sea Claim Area.

91    As descendants of Tjabilja, the Bunna Lawrie Respondents fall within Pathway A(i) of the Claim Group description. It is by virtue of that descendancy that they are holders of native title in the FWC Land Determination Area. Other descendants of Tjabilja are not among the Bunna Lawrie Respondents, thus suggesting an apparent divergence of views within the same family line as to the identities of those who possess rights and interests in the Sea Claim Area.

92    The arguments of the Bunna Lawrie Respondents proceeded from the premise that prior to sovereignty there existed small coastal estates, being tracts of land occupied by Mirning people, and that native title rights and interests in those coastal areas were held under and in accordance with Mirning traditional laws and customs. Whilst they acknowledged kinship and other social connections with other groups, they submit that those connections do not give rise to native title rights and interests in others. They accepted the existence of the wider regional society but took issue with the applicant’s submissions about what flowed from that.

93    As originally framed, their case was that some (but not all) of the ancestors of Tjabilja held native title rights and interests in the whole of the Sea Claim Area. They denied that other peoples held any native title rights or interests in that part of the FWC Land Determination Area at all. They asserted that the Sea Claim Area was the original country of Mirning coastal estate groups.

94    Parts of the case originally pleaded by the Bunna Lawrie Respondents were abandoned in the course of closing submissions, but they maintained their contention that the Claim Group description put forward by the applicant was too broad. By the time of closing submissions, the Bunna Lawrie Respondents had confined their submissions about the extent of Mirning country, asserting that it ran from the State Border (and westward of it), and eastward to the vicinity of Fowlers Bay incorporating Clare Bay. They acknowledged that some Wirangu people may hold native title rights and interests in the eastern portion of the Sea Claim Area extending to a point in the vicinity of Clare Bay. By the time of closing submissions, they acknowledged that there may be an area of shared country with the descendants of Wirangu estate holders.

95    Late in the course of the trial the Bunna Lawrie Respondents asserted rights and interests in the region of Fowlers Bay by reason of newly identified associations between Tjabilja and Aboriginal people who were situated there.

96    Their contentions were otherwise that:

(1)    The Mirning, Wirangu and Kokatha peoples were and remain distinct peoples by virtue of them speaking distinct languages at sovereignty, occupying and possessing distinct geographical territory to the exclusion of others (except where country was shared) and having their own particular mythology concerning the pre-historic creation of parts of their territory.

(2)    Whilst the Claim Group is a regional society, the normative rules of the regional society do not include any tenurial rules.

(3)    Membership of the regional society alone does not confer on any particular person any particular native title right or interest in respect of any particular place.

(4)    The tenurial rules for each of the Mirning, Wirangu and Kokatha peoples are part of the traditional rules of each of the groups.

(5)    Mirning laws and customs are descent-based and are concerned with a primarily coastal bounded geographic area which is the aggregate of all Mirning local estate group territories existing at sovereignty.

(6)    The Kokatha people were and remain adherents to the traditional laws and customs of the Western Desert cultural bloc. Their territory was confined to desert areas and did not extend to the coast, let alone any part of the Sea Claim Area.

(7)    The Mirning people are not adherents of Western Desert laws and customs. Traditional Mirning rules do not permit the overlay or underlay of Western Desert mythic tracks within Mirning country.

97    The Bunna Lawrie Respondents initially alleged that in order for a Mirning person to hold native title that person and their Mirning parent (and so on) “must have always and only followed Mirning traditional rules”, so as to assert a form of exclusive citizenship. By closing submissions that allegation was abandoned.

98    The Bunna Lawrie Respondents contend that the amalgamation to which Mansfield J referred in the reasons accompanying the FWC Land Determination reflects “an amalgamation in the sense of agglutination not blending. Mirning [traditional laws and customs] still exist within, indeed they are a foundation of, the FWC [Land] Determination” (emphasis in original).

99    In opening submissions, the Bunna Lawrie Respondents’ modified or alternate case was that the claim may be allowed in part, limited to the following (where TLC means traditional laws and customs):

2.1    a limited subset of the nominated apical ancestors (Coastal Apicals) which were, between them, in possession of various parts of the claim area (Coastal Estates);

2.2    the Coastal Apicals were members of groups (Clans) which had traditional laws and customs (Coastal TLCs) and did not practice Western Desert TLCs;

2.3    Coastal TLCs provided that:

2.3.1    Coastal Estates were possessed by a Clan rather than any individuals;

2.3.2    membership of a Clan was by descent from ancestors within the Clan; and

2.3.3    a Clan which possessed a Coastal Estate was able, in accordance with traditional protocols, to succeed to the area of another Clan’s Coastal Estate if that second Clan died out;

2.4    Those descendants of the Coastal Apicals who have continued to acknowledge and observe Coastal TLCs now, by descent and succession to ‘orphaned’ Coastal Estates, possess the entire claim area under those traditional laws and customs. (‘Possess’ in this sense is necessarily limited by the fact that only non-exclusive native title can be recognised in the sea.)

100    The practical effect of that argument was that the second of the Preliminary Questions should be resolved by recognising native title rights and interests held by persons who were descended from only some of the apical ancestors named in Pathway A, such that the applicant’s case should be upheld in a limited part or alternatively dismissed. The Bunna Lawrie Respondents submitted that the Claim Group should include only the names of some ancestors who they assert may be accepted as coastal estate holders prior to sovereignty. They pressed for the exclusion of all other named ancestors and the inclusion of three ancestors not named in the Claim Group description.

101    The Bunna Lawrie Respondents invited the Court to find that native title existed in that part of the Sea Claim Area extending from the State Border through to and including the “Clare Bay Jeedara Site” (as described in the evidence below) and made no submissions about the existence of native title eastward of that point. They invited the Court to find that the persons who held native title in that portion of the Sea Claim Area west of the Clare Bay Jeedara site were the biological descendants of Tjabilja, who they say have succeeded to the whole of the area between the State Border and Clare Bay.

102    It is convenient at this juncture to refer to some procedural history affecting and explaining the participation of the Bunna Lawrie Respondents in the proceeding.

103    Prior to the trial, the Court dismissed an interlocutory application by which the applicant sought to have the Bunna Lawrie Respondents (then including Robert Lawrie) removed as parties:  Miller (No 2).

104    By orders made on 4 November 2021 the Court struck out an overlapping claim referred to as the Mirning Eastern Sea and Land Claim (MESL Claim), of which at least one of the Bunna Lawrie Respondents was a proponent:  Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim) [2021] FCA 1357. That claim (commenced in May 2021) related to a very large area of the sea in the vicinity of the Great Australian Bight exceeding 500 km in length and extending seaward from the Lowest Astronomical Tide to a distance of about 150 km.

105    It is important to emphasise that on the trial of the Preliminary Questions the Court does not have before it two or more overlapping applications, the MESL Claim having been struck out prior to trial. There is only one application brought under s 13(1)(a) and s 61 of the NT Act, and that is the only claim presently under consideration. The procedural background is mentioned here because some of the evidence considered by the Court was prepared at a time when the MESL Claim was still on foot and so must be considered in that historical context. Notwithstanding all of that, the present claim is defended by Aboriginal respondents who have adduced evidence of a kind that might be adduced had they commenced a valid application for a determination of native title of their own.

The State

106    The State’s defence had three broad aspects to it. Its primary contention was that no native title rights and interests exist in the Sea Claim Area. That contention was founded in part on an allegation that at sovereignty Aboriginal people on the associated land area did not access the Sea Claim Area, and that whilst there was some use of marine resources, that use was limited and opportunistic, and did not extend seaward of the Lowest Astronomical Tide. On that aspect of its defence, the State alleged more specifically that:

(1)    as at sovereignty:

11.1.    Aboriginal people did not use any form of watercraft in any waters within the [Sea Claim Area];

11.2.    Aboriginal people did not use, traverse, occupy or otherwise physically engage with any waters within the [Sea Claim Area] except, and only, in so far as Aboriginal people were able to walk or wade in the shallows in the waters of those parts of the [Sea Claim Area] that were actually physically accessible:

11.2.1.    without the use of watercraft; and

11.2.2.    by a person incapable of effectively swimming in sea and ocean waters such that use of waters by Aboriginal People within the [Sea Claim Area] was limited to the littoral zone (being the immediate foreshore) and the area already subject to [the FWC Land Determination]

11.3.    Aboriginal people did not use or occupy, inter alia, the offshore islands, or the sea at the base of the Bunda Cliffs within the [Sea Claim Area] because those areas were physically inaccessible to Aboriginal people;

11.4.    any spiritual beliefs, myths and stories in relation to mythological sites in the surrounding country adjacent to or near the [Sea Claim Area] did not apply seawards in the area of the [Sea Claim Area]; and

11.5.    even if Aboriginal people had beliefs explaining the creation of the ocean, its resources and occupants, such matters do not establish that native title rights and interests existed in or around the 1870s, at sovereignty, or otherwise.

(2)    the existence of any mythical sites and stories concerning the surrounding countryside did not mean that such sites and stories were of cultural significance to the Sea Claim Area or otherwise established native title rights and interest in the Sea Claim Area;

(3)    the waters and islands in the Sea Claim Area were not traditionally accessed or occupied by Aboriginal people, including because large parts of it were physically inaccessible; and

(4)    no person was born within the Sea Claim Area.

107    The second and alternate aspect of the State’s case was that if native title rights and interests existed in the Sea Claim Area at all, they existed only in those parts that were physically accessible. The accessible parts were said to include waters beyond the Lowest Astronomical Tide to a depth of 2 m. In addition, it submitted that the native title holders were not as alleged by the applicant in that (among other things) they did not include the descendants of any Kokatha people. In that respect, the State invited the Court to make two critical findings. The first is that prior to and at sovereignty the land immediately adjacent to the Sea Claim Area was comprised of small patrilineal family estates, such that any rights or interests in or appertaining to the sea were held by those Aboriginal people who had rights in relation to the land and waters of the particular coastal estate situated landward of it. The second is that at sovereignty, the coastal estates to the west of and including Merdayerra Sandpatch were those of the Mirning people, and the coastal estates in an eastern portion of the Sea Claim Area (from the vicinity of Sponge Cove to the east of Head of the Bight) were held by the Wirangu people.

108    The State submitted that there were no permanent coastal estates on the land along the Bunda Cliffs, which was a transition zone between estates to the east and west of the cliffs and the Nullarbor Plain. The State submitted that if there were coastal estates on the Bunda Cliffs themselves, the inaccessibility of the sea in that area meant that those estates did not give rise to rights in the adjacent sea beyond the Lowest Astronomical Tide.

109    Further in relation to the use of the sea, the State submitted (where NTRI means native title rights and interests):

… a finding of NTRI is concerned with the existence, and not the exercise of rights. A right requires, for its genesis, that it was capable of being exercised and observed traditionally. Therefore, the seaward extent of the country turns on at-sovereignty use. Given historical limitations on access and use, the applicant has not established that the seaward boundary of those coastal estates extended as claimed.

(footnotes omitted)

110    The State submitted that the Kokatha people at sovereignty were an inland group who did not occupy land abutting the sea and did not otherwise hold native title rights and interests in the Sea Claim Area. It submitted that the presence of Kokatha people in the coastal region is explained by post-sovereignty southern migration resulting from their displacement from areas further north and the attraction of ration stations, missions and opportunities for work in the south. Contemporary presence of Kokatha people on or near the sea was not, the State contended, explained by traditional laws and customs giving rise to native title rights and interests there.

111    The State’s position is that at sovereignty, only Mirning people could speak for “Mirning country” and only Wirangu people could speak for “Wirangu country”. Those who were neither Mirning nor Wirangu could not access or use the land abutting the sea other than with the express or tacit permission of the coastal estate holders. Alternatively, the other rights and interests were mediated and depended upon status or relationships and were not transmissible by descent and not properly characterised as rights “in relation to land or waters” for the purposes of the native title definition.

112    The State submitted that in the period following the assertion of sovereignty and the colonisation of the land, significant numbers of Aboriginal people from inland places migrated southward and into the coastal regions. A consequence of that post-sovereignty movement is that the traditional rules as to use, access and the gaining of rights have broken down such that access to land comprising the coastal estates of the Mirning and Wirangu people is no longer dependent upon a grant of permission. It submitted that the infiltration of other Aboriginal groups had the cultural consequence that traditional laws and customs had been lost.

113    The State denied that the legal effect of the FWC Land Determination was as contended by the applicant. It submitted that within the FWC Land Determination there existed discernible geographic areas and that notwithstanding its reference to a wider regional society the determination did not identify who possessed rights in any one of those areas. It submitted that a commonality of laws and customs at the level of a broader regional society did not give rise to rights and interests in all persons in all parts of the determined area. Rather, it was necessary to analyse the traditional laws and customs to determine who had rights and interests under them in the area under question.

114    The State submitted that shared mythical narratives and other group linkages did not of themselves establish native title rights and interests in an area by all persons who shared them.

115    It further submitted that there was no longer any observance of either Mirning or Wirangu traditional laws and customs with respect to the Sea Claim Area, more specifically that there was no acknowledgement or observance of rules about the protection of any sacred sites or traditional fishing or use of resources. Rather, it submitted, present day use by Aboriginal people of the sea was a consequence of generations of families living by it and accessing it, and in modern times those activities had not been undertaken by reference to traditional laws and customs. It submitted that the applicant had “failed to establish continuing connection by [traditional laws and customs]” within the Sea Claim Area, which must be considered as a separate place to that of the adjacent land for native title purposes. The State submitted that whilst Wirangu and Mirning people had rights and interests in the land at sovereignty, they had failed to maintain a connection with the Sea Claim Area or had in respect of that area been “subsumed into the wider group and otherwise lost their [traditional laws and customs]”. The State emphasised that it did not intend that submission to be understood in any way that would contradict or undermine the legal force of the FWC Land Determination.

116    The State acknowledged the existence of Dreaming stories relating to the coastline and explaining its creation, but submitted that those stories did not “establish an estate or the extent of a group’s connection to country”.

117    The State submitted that present day decisions in relation to the FWC Land Determination Area were not made in accordance with traditional laws and customs, specifically because the decisions were not made by the descendants of the apical ancestors of the relevant coastal estates.

118    As to Pathway C, the State submitted that the applicant had failed to establish the present day existence of any person having ritual responsibility for a place situated in the Sea Claim Area, adding that it was not sufficient to point to the existence of that pathway in the FWC Land Determination.

The Commonwealth

119    In its closing submissions, the Commonwealth submitted that the applicant had not made out its case that native title exists in the Sea Claim Area. It submitted that there may be instances where the proximity of a determination of native title to a claim area may support an inference that the determined native title holders also hold native title in the immediately proximate land or waters, but this is not such a case. The Commonwealth submitted that inferences that might otherwise be drawn to “extend” native title in favour of the native title holders under the FWC Land Determination in respect of the Sea Claim Area are defeated by contradictory evidence, particularly evidence concerning the situation at sovereignty and the absence of Kokatha persons from coastal areas.

120    The Commonwealth’s submissions largely aligned with those of the State. It submitted that no native title rights and interests were possessed in the waters at the base of the Bunda Cliffs, even if they could be possessed in other parts of the Sea Claim Area.

121    In alternate submissions the Commonwealth argued that if native title rights and interests existed, the western extent of Wirangu country was at Twin Rocks (a place further east than that urged by the State) and the waters around the islands should also be included. It submitted that if native title rights and interests were found to exist, the Court should conclude that they were possessed by the descendants of Mirning and Wirangu coastal estate holders pursuant to the body of traditional laws and customs in the coastal region that included rules about interrelation between the estate groups.

Michael Laing

122    Michael Laing is a descendant of Mirning man Gordon Charles Naley. He alleges that Gordon Charles Naley and Gordon Charles Naley’s mother occupied areas on the land near the Sea Claim Area at or around effective sovereignty just as Tjabilja did. Accordingly, he submitted, Gordon Charles Naley’s mother should be named as an apical ancestor in Pathway A(i) of the Claim Group description.

123    Michael Laing’s position is explained in a history of decisions recording his unsuccessful attempts to be included as a native title holder in the FWC Land Determination: Laing v State of South Australia [2012] FCA 676, Laing v State of South Australia (No 2) [2012] FCA 980, Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717. Given that history, Michael Laing’s participation in the proceeding was met with a degree of antagonism by those who hold native title rights and interests in the land. The applicant alleged that Michael Laing did not learn of his Aboriginal ancestry until late in his life, that he cannot be a native title holder by reference to that ancestry and that his status should depend upon the discretion of the native title holders by way of Pathway A(i).

124    The State did not actively oppose Michael Laing’s position and indeed gave some tepid support for it. It submitted that if native title exists in the Sea Claim Area, the evidence may support a finding that he is a native title holder by reference to his ancestry. By the conclusion of the trial the Bunna Lawrie Respondents invited the Court to include the mother of Gordon Charles Naley as an antecedent.

125    The Commonwealth submitted that it was open to the Court to find that Gordon Charles Naley’s mother was a Eucla Mirning woman with rights and interests in country which extended into parts of the Sea Claim Area. It submitted that if the Court made such a finding (and found that native title existed in the Sea Claim Area), then it would accept that Gordon Charles Naley’s descendants are native title holders in the Sea Claim Area.

Robert Lawrie

126    Robert Lawrie is a Mirning elder. His case originally aligned with that advanced by the Bunna Lawrie Respondents in a pleading that was filed on his behalf. Whilst he has not expressly withdrawn the contentions in that pleading, he may be taken to have implicitly abandoned any contention that would be inconsistent with his support of Michael Laing’s case. I proceed on the basis that Robert Lawrie otherwise takes issue with the description of the Claim Group for the same reasons advanced by the Bunna Lawrie Respondents, his breakaway was explained solely by a different view in connection with Michael Laing. I consider Robert Lawrie’s position to be encompassed by arguments advanced by other parties and do not consider it necessary to refer to his position as a party again.

PART 5: SURROUNDING DETERMINATIONS AND PRIOR CLAIMS

127    In order to address the issues in dispute in this litigation, it is necessary to have regard to a number of native title determinations already made, and not merely the FWC Land Determination.

The FWC Land Determination

128    The area that became subject to the FWC Land Determination was previously subject to several disputed native title determination applications that overlapped to varying extents. The claimants in those overlapping claims were Mirning, Wirangu and Kokatha groups, as well as people representing the interests of some people from Maralinga Tjarutja, Yalata and members of the Ted Roberts family.

129    The disputes arising in the overlapping claims were resolved by a process of mediation and negotiation over many years followed by the amendment, retraction, merger or withdrawal of claims to reflect the outcome of those settlement processes.

130    The boundaries of the determination area are described in Schedule 1 and (subject to some exceptions) native title was determined to exist in the land and waters described in Schedule 3.

131    The Court dismissed the application to the extent that it included an application for a determination of native title in an area that is now the Sea Claim Area in this proceeding. The dismissal of that part of the earlier claim resulted from the inability of the reconstituted applicant to secure the consent of all other parties (particularly the State) for a determination over it. The dismissal did not constitute a determination that no native title existed there. As no determination of native title was made in respect of that area, it remained open for later applications to be made over it.

The area covered

132    I have mentioned that the FWC Land Determination Area covers an area of approximately 75,429 km2. Within its external boundaries are the townships of Ceduna/Thevenard, Denial Bay, Smoky Bay, Penong, Fowlers Bay and Coorabie.

133    I have also identified that the southern boundary follows a line that may be plotted by reference to the Lowest Astronomical Tide.

134    The western boundary is contiguous with the State Border. On that line, it is also contiguous with a native title determination made in favour of the Mirning people, discussed below.

135    The northern boundary is largely contiguous with land understood to be held by people known as the Maralinga Tjarutja. It generally follows the southern boundary of land utilised for the Trans-Australian Railway Line.

Native title holders and their rights and interests

136    The native title holders are described at [9] of the FWC Land Determination in terms that are largely replicated in the proposed amended Claim Group description in this action, extracted in Part 3 of these reasons. Notably, by reason of Pathway A, a person may hold native title by reason of his or her descendancy from one or more of the named Kokatha, Mirning and Wirangu descendants. From that description alone it may be observed that the FWC Land Determination did not deny the existence of Aboriginal persons meeting the description of a Kokatha, Mirning or Wirangu person. In addition, the native title rights and interests are held in accordance with the traditional laws and customs of the “Kokatha, Mirning and Wirangu who comprise the Far West Coast People”.

137    The nature and extent of the native title rights and interests are described at [10] of the FWC Land Determination as being “non-exclusive rights to use and enjoy, in accordance with the native title holders’ traditional laws and customs, the land and waters”, being the following:

(a)    the right to access and move about the Native Title Land;

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

(c)    the right to hunt on the Native Title Land;

(d)    the right to fish on the Native Title Land;

(e)    the right to gather and use the natural resources of the Native Title Land such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers;

(f)    the right to share and exchange the subsistence and other traditional resources of the Native Title Land;

(g)    the right to use the natural water resources of the Native Title Land;

(h)    the right to cook on the Native Title Land and to light fires for domestic purposes but not for the clearance of vegetation;

(i)    the right to engage and participate in cultural activities on the Native Title Land including those relating to births and deaths;

(j)    the right to conduct ceremonies and hold meetings on the Native Title Land;

(k)    the right to teach on the Native Title Land the physical and spiritual attributes of locations and sites within the Determination Area;

(l)    the right to visit, maintain and protect sites and places of cultural and religious significance to native title holders under their traditional laws and customs on the Native Title Land;

(m)    the right to be accompanied on to the Native Title Land by those people who, though not native title holders, are:

(i)    spouses of native title holders; or

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

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

138    The rights and interests there described are not in terms ascribed to any particular individual native title holder, nor a group or subgroup of them.

139    The Far West Coast Aboriginal Corporation (FWC Aboriginal Corporation) is the prescribed body corporate for the purposes of s 57(2) of the NT Act, but it does not hold the native title on trust.

Accompanying reasons

140    I here summarise the reasons of Mansfield J in some detail because they form a part of the applicant’s articulation of its case.

141    In reasons accompanying the FWC Land Determination, Mansfield J described the claim as an amalgamation of overlapping claims, described by some as loops of intersecting claims affecting the relevant area, as in a daisy chain. His Honour said that in May 2004, the mediation process culminated in a meeting at Spear Creek near Port Augusta attended by nine native title claim groups, resulting in the combination of two claims in 2006 and the addition of “some western Kokatha People” in that combined claim (Spear Creek Agreement).

142    Justice Mansfield observed that the native title claim group “identify primarily as Mirning, Wirangu and Kokatha” and that, as a result of intermarriage, many of them had affiliations with more than one group.

143    His Honour went on to set out the three requirements for a determination of native title by consent under s 87 of the NT Act, namely that the Court be satisfied that an order in, or consistent with, the terms sought would be within its power (s 87(1)), that it would be appropriate to make the order sought (s 87(2)), and that the determination proposed by the parties contained details of the matters mentioned in s 225 of the NT Act.

144    His Honour went on to discuss the nature of the Court’s power to make a determination of native title by consent, and the role of the State in that context. As explained by Reeves J in Nelson v Northern Territory (2010) 190 FCR 344:

12.    It is appropriate to make some comments about the difficult balance a State party needs to strike between its role in protecting the community’s interests, including the stringency of the processes it follows in assessing the underlying evidence going to the existence of native title, and its role in the native title system as a whole, to ensure that it, like the Court and all other parties, takes a flexible approach that is aimed at facilitating negotiation and achieving agreement.  …

13.    …  In my view, it would be perverse to replace a trial before the Court with a trial conducted by the State party respondent and I do not consider that is what is intended by the provisions of s 87 of the Act.

145    To similar effect, North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 said (at [38]):

The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases.  …

146    In referring to sites of significance within the FWC Land Determination Area, Mansfield J said that the area included many sites of significance that continued to play an important part in the native title holders’ observance and maintenance of laws and customs. His Honour went on to refer to a site of cultural significance and a story associated with it that connected the people of the Southern Western Desert to the coast (at [26]). His Honour referred to a site marking the travels of a giant serpent known to the native title holders as Wanampi, as well as sites that were important stopping places for people on their way to Ooldea and Oak Valley to the north of the FWC Land Determination Area.

147    Justice Mansfield referred to expert reports that had been considered by Counsel for the State, including a report of Dr Kingsley Palmer. His Honour said that it was Counsel’s considered opinion that a decision by the State to consent to the orders recognising native title over the landward portion of the claim area would be justifiable on the material available to the State, which included that report (at [33]). However, it is not suggested that the materials considered by the State were before Mansfield J. Rather, his Honour should be understood as referring to an assessment that the State had made on the basis of the report and other materials against the requirements of its Consent Determination Policy (at [37]). Justice Mansfield said that it was a threshold requirement that the “evidence show” that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the relevant area. Again, considering the reasons in their proper context, his Honour should there be understood to refer to an assessment of evidence the State had made in accordance with its policy.

148    Justice Mansfield observed that there were a number of decided cases in which composite communities or groups (such as language or estate groups) had been found to form a part of a wider community or group of peoples that have acknowledged traditional laws and observed traditional customs “from which the native title rights of members of the composite group are derived”. His Honour continued (at [41]):

A society can exist on a number of levels, and at each level there arise norms that bind the membership. For native title purposes, the relevant level is that at which the norms which bind membership give rise to the relevant rights, title and interests in relation to land and waters.

149    His Honour said that there were three language groups “within” the FWC Land Determination Area (namely the Kokatha, Mirning and Wirangu) and that the language identity of those groups was derived by “filiative links traced by descent through either father or mother”. His Honour continued:

43.    The evidence suggests that members of these three language groups form constituent members of a single regional society, who together hold the communal rights, title and interests in the Determination Area.

44.    The evidence demonstrates that there is, between members of the three language groups, a commonality of laws, customs, religious and spiritual matters and kinship such that they form one integrated polity. Furthermore, there is a commonality of customs and beliefs that are shared with the Western Desert peoples to the north of the Determination Area, many of whom now reside at Yalata (within the Determination Area) and Oak Valley (on the Maralinga Tjarutja lands immediately to the north of the Determination Area). Some descendants of these Western Desert people, who were born on the Determination Area and have knowledge of and ritual responsibility for it, are also members of the native title claim group.

45.    While identification with these three language groups is an important part of the way that members of the native title claim group situate themselves in relation to others, the evidence suggests that contemporary language group identity is in large part a matter of choice, occasioned by knowledge of country and its mythology, and social orientation. This is because most native title holders are able to trace descent from ancestors whom they identify with different language groups. Given the multiple language speaking groups of forebears, and the past (and present) inter-marriage between language group members, many native title holders today have ancestors in common, even though they may identify by reference to different language groups.

46.    Language group identity is not, according to the evidence, the critical factor in determining native title rights and interests in the area.

150    His Honour said that experts engaged by the parties had agreed to three principal means whereby persons may obtain native title rights and interests in the area. They were described by the same pathway as now appears in the Claim Group description in this action.

151    There was, his Honour said, a fundamental difference between claiming rights to country through descent, and claims made by reference to birth or ritual attachment, the experts agreeing that the latter rights were “not automatically transmissible to subsequent generations unless accompanied by concomitant knowledge of the country by members of the subsequent generation” (at [51]).

152    Justice Mansfield noted that whilst the Mirning, Kokatha and Wirangu groups were from discernible geographical parts of the area, there was in place between them a regional system of laws and customs governing interactions between them, and with the desert peoples to the north. That system of laws governed trade, access to country, use rights, shared ritual and mythology and possibly the exchange of boys for initiation. Justice Mansfield said that three distinct geographical areas were linked by trails of waterholes that were defined and located in shared mythical narratives and that the trade, ceremonial and communication across the area was such that the three groups were not isolated or independent from each other. His Honour went on to say that the movement of people around the FWC Land Determination Area post-sovereignty increased the level of social interaction and intermarriage between the three groups and increased the focus on their shared cultural attributes, beliefs and practices, with the consequence that (at [57]):

… what was pre-sovereignty likely to have been three more distinct groups associated with distinct territorial areas but bound by a common regional set of laws and customs governing interaction between them has evolved, in a process that was in accordance with, and is the product of, the pre-sovereignty system of laws and customs of the native title holding group, into an integrated society:  Akiba v Queensland (No 3) (2010) 204 FCR 1; Sampi on behalf of the Bardi and Jawi People v Western Australia [2005] FCA 777.

153    Justice Mansfield summarised Dr Palmer’s opinion about the nature of “fundamental rights” being the right to speak for, and make decisions about country as follows (at [75]):

According to Dr Palmer’s evidence, ‘fundamental rights’ are rights to make decisions about, or ‘speak for’ country. Fundamental rights are held only by those who possess the requisite ritual knowledge. Dr Palmer acknowledges that in the contemporary native title holding society ‘fundamental rights’ are largely held by those who trace their descent from desert groups to the north of the Determination Area. The evidence provides various examples of individual members of the native title holding group naming the people who needed to be consulted about decisions relating to different parts of the Determination Area, including the requirement to consult senior men and women at Yalata and Oak Valley for guidance when it came to hunting and gathering on milmilpa (restricted) country. In Dr Palmer’s opinion this represents a change in the way in which the exercise of rights to country would have been organised, which has resulted from the consequence of the diminution of ritual activity on the Determination Area as a result of European settlement and subsequent administration of the area. However it is Dr Palmer’s opinion that this change is not founded upon an innovative system, but is rooted in customary practice.

WA Mirning Determination

154    The WA Mirning Determination was made by Robertson J on 24 October 2017 by consent under s 87A of the NT Act. Reasons were published as K.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225.

155    The area subject to the WA Mirning Determination is situated in the far east of Western Australia, incorporating the township of Eucla. Its eastern boundary follows the State Border and so is contiguous with the western boundary of the FWC Land Determination Area. The southern boundary follows the Lowest Astronomical Tide. The area extends northward to the Trans-Australian Railway Line. Among the authorised applicants was Clem Lawrie, a Mirning man who is part of the constituted applicant in this proceeding.

156    The orders comprising the determination describe (at [3]) the native title as held by “the Mirning People and by persons, including members of the Spinifex People, who hold mythical or ritual totemic knowledge in the Determination Area”. The native title holders are then described in Schedule Six by reference to two pathways.

157    The first is described as those Mirning people who are descended from ten named ancestors, including Tjabilja (also named in the Claim Group description of the present claim) and Gordon Charles Naley (from whom Michael Laing is descended).

158    The second pathway is described as:

2.    Those persons, including members of the Spinifex People, who:

a.    hold mythical or ritual totemic knowledge and experience of Tjukurpa (Dreaming) associated with any part of the Determination Area so as to give rise to rights and responsibilities in relation to such part(s) of the Determination Area;

AND

b.    are recognised by the other holders of ritual totemic knowledge as having native title rights and interests within the Determination Area by virtue of that knowledge and experience;

such persons being, as at the date of this Determination:

…

159    There follows a list of 50 individuals who met that description as at the date of the determination.

160    Each of the two pathways includes a similar “mutual recognition condition” to that contained in the FWC Land Determination and now put forward in the present case.

Accompanying reasons

161    In the accompanying reasons for judgment, Robertson J said:

5.    The Mirning native title claimants are bound together by a normative system of laws and customs which, on the basis of known facts and reasonable inference, has continued to be observed in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. The concepts of Tjukurpa and the Law are central to the belief system of the Mirning native title claimants, and give rise to the normative system which governs customary behaviour and the possession of rights and interests in land.

…

7.    … There is a shared acknowledgement that under traditional law and custom the permission of the Mirning native title claimants is needed to enter the Determination Area in order to avoid danger to persons and to country.

162    Justice Robertson explained that those passages were taken from the joint submissions provided by the parties (which included the State of Western Australia and the Commonwealth). He emphasised that in considering whether the orders sought were appropriate the focus of the Court was on the making of a free and informed agreement between the parties, and that the Court was not necessarily required to receive evidence or to embark on its own enquiry into the merits of the claim (at [42] – [43]).

Gawler Ranges Determination

163    Inland and generally to the east of the land subject to the FWC Land Determination is the Gawler Ranges Determination, made by Mansfield J on 29 December 2011 in action SAD6020 of 1998:  McNamara on behalf of the Gawler Ranges People v State of South Australia [2011] FCA 1471. It relates to an area of 3.5 million hectares including the Gawler Ranges and a salt lake region immediately to their north. By consent, Mansfield J determined that native title rights and interests in the area were held by people referred to as the Gawler Ranges people, identifiable in part by reference to 32 named ancestors. In the accompanying reasons, Mansfield J described the native title holders as having their origins in what are generally regarded as three distinct language groups:  Kokatha, Wirangu and Barngarla. His Honour referred to the Kokatha as being part of the “Western Desert Bloc” of Aboriginal people associated with a vast desert area within Western Australia and in South Australia to the north-west of the Gawler Ranges. His Honour went on to say that the Barngarla were part of what had been described as “Lakes Groups” associated with the east of the Gawler Ranges, whereas the Wirangu were associated with the coastal areas to the west and south.

164    Justice Mansfield said that where a determination is sought by consent the Court relies on assessment processes conducted by the State. He said that the Court does not routinely embark on its own enquiry of the merits of the claim but may do so for the limited purpose of satisfying itself that the State has acted rationally and in good faith.

165    There are no common apical ancestors as between the Gawler Ranges Determination and the FWC Land Determination to its immediate south.

Wirangu No 2 Native Title Claim and later determination

166    An effect of reducing the Sea Claim Area at its eastern end was the exclusion from the claim of a body of water extending seaward from the southern boundary of an area that was, at the time of the trial, subject to a claim known as the Wirangu (No 2) Native Title Claim made in action SAD64 of 2022 (formerly SAD6019 of 1998). Following the reservation of this judgment, the Wirangu (No 2) Native Title Claim was determined by consent in two parts, the first being Wilson, on behalf of the Wirangu People v State of South Australia (No 2) [2022] FCA 1460, and the second being Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People v State of South Australia [2023] FCA 60 (together the Wirangu Determination). The claim was not opposed by the applicant nor any other party to this proceeding. The effect of the Wirangu Determination is that native title in the land area abutting the eastern boundary of the FWC Land Determination Area is held under the traditional laws and customs of the Wirangu people.

167    As the State correctly submitted, the retraction at the eastern boundary of the Sea Claim Area by amendment has in this case removed a conceptual difficulty with the applicant’s claim, which asserted that the right holders in the sea are the same as the right holders in the associated coastal landed areas. It was acknowledged by the applicant that retraction of the Sea Claim Area boundary meant that the applicant did not oppose a determination of the sea abutting the Wirangu Determination in favour of those Wirangu people who are described in it.

Mirning Eastern Sea and Land Claim

168    As I have already mentioned, in Sparrow, I made orders in this and other proceedings summarily dismissing and striking out a native title claimant application known as the MESL Claim. The applicant in the MESL Claim was comprised of Aboriginal people who identified as Mirning and who descended from the apical ancestor Tjabilja. They included persons who then (and now) comprise the Bunna Lawrie Respondents.

169    The MESL Claim related to a large area of the sea in and around the Great Australian Bight, together with a portion of land situated on the Eyre Peninsula incorporating Streaky Bay. It overlapped the area covered by the present claim, as well as the area covered by the Wirangu (No 2) Native Title Claim which then remained on foot.

170    Given those overlaps, the MESL Claim was partitioned into Part A and Part B. A large area of the sea covered by the MESL Claim was not overlapped by any other claim, including an area of the sea extending into the waters of the Great Australian Bight to a latitude of 33 degrees south.

171    The Court had previously made an order under s 67 of the NT Act that Part A be dealt with in the same proceeding as the present claim, thus creating what was known as the Great Australian Bight Overlap Proceeding.

172    The reasons given in Sparrow need not be detailed here. However, the fact of the claim must be borne in mind when considering some of the evidence prepared in advance of the trial in this action, some of which was prepared when the MESL Claim remained on foot. Some of the materials refer to vast areas of the sea that do not fall within the more confined Sea Claim Area presently under consideration. They otherwise make express references to the MESL Claim and contain evidence and opinions relevant to its merits.

173    I have mentioned that the MESL Claim covered a vast area extending eastward well into land and waters that have since become the subject of a native title determination in favour of the Wirangu people. It is a claim that represents the position initially adopted by the Bunna Lawrie Respondents in opposing the making of any native title determination in this proceeding.

174    By the time of closing submissions the initial position of the Bunna Lawrie Respondents had altered in several significant respects, including the retraction of the eastern extent of waters that was asserted to form a part of Mirning country, as well as the content of the traditional laws and customs said to make it so. Those amendments to the pleaded case made it unnecessary to consider some questions raised on the evidence about the content of traditional laws and customs advanced in the evidence by witnesses called as part of the Bunna Lawrie Respondents’ case, including some of the evidence of Bunna Lawrie himself. However it remains that the witnesses under oath asserted that their country extended very considerable distances eastward that in my view could not be sustained. In light of the nature of the contested issues in this proceeding it has been necessary to approach assertions of the extent of country with caution, even when more than one witness has joined in the assertion. Whilst I believe the assertions to be genuine expressions of belief, the weight to be given to them is to be assessed in light of the evidence as a whole.

PART 6:  ARGUMENTS BASED ON THE FWC LAND DETERMINATION

175    As I have already mentioned, the phrases “Mirning people”, “Wirangu people” and “Kokatha people” were used throughout the trial as though they described identifiable, discrete and consistent populations for all contexts and all purposes. However, the convenience of those labels disguises some complexity. The circumstance that a person can be described as belonging to a language group does not of itself supply an answer to the question of whether or not there exists a body of traditional laws and customs under which speakers of that language (or their descendants) possess native title rights and interests and, if so, where that native title is held. The evidence adduced at trial does not establish that there exists firm and identifiable boundaries between the “traditional country” of the speakers of a particular language with the speakers of another. In the course of these reasons my intended meaning of the words “Mirning”, “Wirangu” and “Kokatha” must of course depend on the context in which they are used within this judgment.

176    The Bunna Lawrie Respondents (and the State and Commonwealth on their alternative cases) each invited the Court to find that native title rights and interests are held “at the level of the language group”. Their submissions are understood to mean that those who hold native title rights and interests are descended from antecedents that do not include Kokatha antecedents or antecedents of Aboriginal people who did not occupy “coastal estates”.

177    At the commencement of the trial, Counsel for the applicant expressly confirmed that her case was that all persons who possessed native title in the FWC Land Determination Area must necessarily be found to hold native title in the Sea Claim Area, the sea being a natural extension of the land. Counsel went so far as to submit that all persons falling within the definition of native title holders in the FWC Land Determination held native title in all areas of the land and waters to which it relates. That was said to be a consequence of Mansfield J’s “finding” that members of the language groups constituted a single society and together held communal rights and interests in the FWC Land Determination Area (at [43]).

178    By the conclusion of the trial, the “all persons everywhere” argument had modified somewhat, but the applicant persisted with a submission to the effect that the Court was legally bound to find that those who held native title rights and interests in the sea must necessarily be described in the same way as those who hold native title in the adjacent land. It followed, the submission went, that the Court was prohibited from enquiring into the existence or significance of coastal estates existing at sovereignty because to do so would introduce an irrelevant enquiry and one that would undermine the legal effect of the FWC Land Determination as a judgment in rem. Given the importance of this issue, I will address some of the applicant’s arguments now, at least to the point of explaining why I consider evidence about the existence and consequences of coastal estates in the FWC Land Determination Area is relevant and admissible, and why the broader enquiry contained in these reasons is not precluded as a matter of law.

179    The applicant asserted at least seven arguments and propositions that were said to follow from the fact and content of the FWC Land Determination. They were not articulated in this form or order by the applicant, rather I have distilled them from the whole of the material upon which they relied, including written and oral submissions:

(1)    A native title determination is a judgment in rem, binding not only upon the parties to the proceeding in which it was made, but upon all of the world.

(2)    A judgment in rem cannot be contradicted in a subsequent proceeding and evidence adduced for that purpose is inadmissible or should be afforded no weight.

(3)    The circumstance that a native title determination is made by consent does not derogate from its character and force as a judgment in rem.

(4)    The FWC Land Determination recognised native title in favour of the same group that now applies for a determination in respect of the abutting Sea Claim Area (at least in its proposed amended form).

(5)    The native title determined to exist in the FWC Land Determination is held by the “Far West Coast People” in accordance with traditional laws and customs acknowledged and observed by them as an Aboriginal society that has continued in existence since a time prior to sovereignty. The native title rights and interests recognised by the FWC Land Determination are of a traditional nature in the sense that they are sourced in pre-sovereignty laws and customs, in accordance with the principles stated by the High Court in Yorta Yorta.

(6)    Native title in the FWC Land Determination Area is held communally. The description of the native title as “communal” means that it is neither permissible nor necessary to enquire into which individuals or groups hold native title rights in particular parts of the FWC Land Determination Area. More specifically, it would contradict the FWC Land Determination to assert the existence of (or enquire into the existence of), coastal estates or tracts within any part of the FWC Land Determination Area as to do so would contradict the premise that the far west coast people are a single society, the members of which are united in their acknowledgement and observance of the same body of traditional laws and customs. It follows that a determination in relation to the Sea Claim Area that recognises as native title holders only those descendants of apical ancestors who are identified as having occupied coastal estates at sovereignty would impermissibly contradict the FWC Land Determination.

(7)    Even if the FWC Land Determination is not binding on this Court in the manner argued, it nonetheless supports a compelling inference that the Claim Group members hold native title in relation to the land and waters in the Sea Claim Area and it would be illogical as a matter of fact to make any other finding.

180    In resolving those arguments, I begin by stating the obvious: the FWC Land Determination Area and the Sea Claim Area are not the same. The FWC Land Determination recognised that native title exists in the FWC Land Determination Area, being an area that extends into sea waters as far as the Lowest Astronomical Tide, but not beyond. The FWC Land Determination was made by consent, but the existence of native title rights and interests and the identity of the persons who hold them in the different Sea Claim Area is the subject of considerable controversy to be resolved in a litigious context in the present case.

181    The applicant is correct to describe the Lowest Astronomical Tide as an arbitrary or imaginary line in the minds of Aboriginal people. However, the Court has a forensic task to perform and that line has forensic significance in the performance of that task. It is a line that the applicant was required to grapple with in discharging the onus of proof in light of the defences raised and the earlier dismissal of a claim over the very same area.

182    As to the first three propositions, the applicant is correct to describe the FWC Land Determination as a judgment in rem. It is a judgment concerned with the status of people in relation to property and is binding not only upon the parties to the proceeding in which the judgment was made, but upon all of the world. As Moore, North and Mansfield JJ explained in Dale v Western Australia (2011) 191 FCR 521, (at [92]):

…  Any determination made concerning the area will bind the world at large. It is, in effect, a judgment in rem:  see Wik Peoples v Queensland (1994) 49 FCR 1. The determination will bind persons beyond parties to the proceedings. Because of the special characteristics of a judgment in rem, it operates outside the usual field of operation of the principle of issue estoppel requiring, as the latter does for its engagement, that the same parties (or their privies) were parties in the proceedings in which the issue was earlier determined. That is, a judgment in rem involves the determination of the status of the person or thing and binds the world at large and not simply the parties to the litigation:  Re Lawrence; Ex parte Burns (1985) 9 FCR 9 and Wall v The King; Ex parte King Won (No 1) (1927) 39 CLR 245 at 291 per Isaacs J.

183    A determination of native title has the status of a judgment in rem whether it is made at the conclusion of a contested trial or by consent under s 87 or s 87A of the NT Act: see Malone (on behalf of the Clermont-Belyando Area Native Title Claim) v Queensland (No 5) [2021] FCA 1639; 397 ALR 397, Reeves J (at [245] – [269]).

184    That characterisation means that the judgment cannot be contradicted in a subsequent proceeding and any evidence adduced for that purpose will be inadmissible to the extent that it is directed to that purpose, or must be afforded no weight. The applicant’s arguments generally concerning the effect of a judgment in rem are accepted.

185    However, whilst it is accepted that the FWC Land Determination has the status of a judgment in rem, it is necessary to identify with precision what the determination is, and what it is not. The determination takes the form of orders made by Mansfield J on 5 December 2013 which contains cross-references to Schedules containing information fulfilling the requirements for a determination of native title prescribed in s 225 of the NT Act. The determination was accompanied by the written reasons but the two are not the same thing. That conclusion coincides with the general law, which draws a distinction between a judgment in rem and findings expressed in reasons accompanying it: Burden v Ainsworth (2004) 59 NSWLR 506 (at [21]). In this proceeding, evidence of a decision or findings of fact in a proceeding are not admissible to prove the existence of a fact that was in issue in that proceeding: Evidence Act, s 91(1). No party applied to have that evidentiary rule dispensed with.

186    That is not to say that the FWC Land Determination did not encompass factual matters that must be understood to have been necessarily and intrinsically determined by virtue of the in rem status of the judgment and the terms of the NT Act. But those factual matters are to be found in the determination, not in the reasons for judgment accompanying it.

187    Where the reasons employ phrases such as “there is evidence that”, “evidence suggests that”, “the report provides evidence” or “according to Dr Palmer’s evidence”, Mansfield J should be understood as referring to material that was before the State for the purpose of its consideration of the claim against the requirements of its Consent Determination Policy. Likewise, where it is said that an inference may be drawn, the phrase should be understood in the context of the Court’s function and powers under s 87 of the NT Act, specifically to make a determination of native title without conducting a contested hearing on any question of fact or law. In other words, I do not understand Mansfield J himself to have made substantive findings of fact on the basis of the evidence to which he referred, because it formed no part of his Honour’s task to do so. The material to which his Honour referred provides some indication as to why the State consented to the determination on the basis that there was a single society of Aboriginal people for native title purposes, albeit one comprised of Aboriginal people belonging to three distinct language groups.

188    For that reason, I reject the applicant’s proposition that matters have been “conclusively established” because they were mentioned as facts in Mansfield J’s reasons (whether or not expressed as factual findings). However, that does not mean that the same facts cannot be discerned from the fact of (and terms of) the determination itself. Many of them can be, as acknowledged throughout these reasons.

189    I find that the facts determined conclusively are those set out in the determination itself which collectively fulfil the requirements of s 225 of the NT Act in relation to (and only in relation to) the land to which the FWC Land Determination relates. They include factual matters such as who the holders of the native title are, the nature of the rights and interests and the interaction between those rights and interests with the rights and interests of other persons in relation to the same land.

190    The above-mentioned considerations inform the exercise of the discretion conferred on the Court under s 86 of the NT Act. It provides:

Evidence and findings in other proceedings

(1)    Subject to subsection 82(1), the Federal Court may:

(a)    receive into evidence the transcript of evidence in any other proceedings before:

(i)    the Court; or

(ii)    another court; or

(iii)    the NNTT; or

(iv)    a recognised State/Territory body; or

(v)    any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

(b)    receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

(c)    adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).

(2)    Subject to subsection 82(1), the Federal Court:

(a)    must consider whether to receive into evidence the transcript of evidence from a native title application inquiry; and

(b)    may draw any conclusions of fact from that transcript that it thinks proper; and

(c)    may adopt any recommendation, finding, decision or determination of the NNTT in relation to the inquiry.

191    The relevant power in the present case is a power to adopt the “findings” or “decision” or “judgment” comprised in, or accompanying, the FWC Land Determination under s 86(1)(c).

192    Having recognised the in rem force of the FWC Land Determination, it is necessary to consider what need be or should be “adopted”. The orders of Mansfield J included an order dismissing that part of the claim that did not fulfil the requirement of a consent determination in accordance with s 87 of the NT Act, including because the State was of the view that the evidence (including the opinions of Palmer) justified that course. Of course, the applicant has not asked the Court to “adopt” that part of the judgment that specifically and adversely relates to the Sea Claim Area.

193    I conclude that it is not in the interests of justice to exercise the discretion under s 86(1)(c) in respect of any part of the FWC Land Determination over and above what is required by general law according to its status as a judgment in rem. In so concluding I have had regard to the nature and extent of the issues to be determined in this different adversarial context relating to a different but closely related area. The “evidence” referred to by Mansfield J is a fraction of the material before me relating to the Sea Claim Area, exceeding 30,000 pages. The fact and content of the FWC Land Determination has forensic relevance for multiple purposes as will be seen throughout these reasons, but it will not be “adopted” under s 86(1)(c) of the NT Act. The applicant has been afforded the opportunity to adduce evidence of the traditional laws and customs relevant to the Sea Claim Area, and it may do so by adducing evidence of laws and customs giving rise to native title rights and interests on the adjacent land. The FWC Land Determination provides some evidence of those laws and customs and it forms the basis of several critical findings in the pages to come.

194    The applicant’s fourth proposition is substantially correct in that the Claim Group in its proposed amended description is the same group of Aboriginal people who have been recognised in the FWC Land Determination as possessing native title rights and interests in respect of the land and waters to which it relates. Any minor differences in the descriptions are of little moment for present purposes.

195    I accept the applicant’s fifth proposition. The facts there stated are necessarily inherent in the FWC Land Determination without reference to the reasons for judgment. The applicant is correct to say that evidence cannot be adduced for the purpose of supporting any contradictory finding. However, that acceptance does not come with an acceptance that all of the native title holders have native title rights and interests in all places within the FWC Land Determination Area, nor does it deny the existence of discrete and different groups of Aboriginal people capable of holding native title rights and interests in places in the immediate vicinity of the FWC Land Determination Area. So much is apparent from the existence of the WA Mirning Determination and the Wirangu Determination in which there are native title holders who also possess native title recognised by the FWC Land Determination.

196    Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 also illustrates the point. In that case, Mansfield J decided three overlapping native title claims over an area of land on and near Lake Torrens in South Australia. His Honour said that the native title determinations surrounding the claim area were binding not only on the parties to those determinations but the whole of the world and therefore constrained the way in which each claimant group could present their own cases in opposition to the cases presented by the other groups. More specifically, his Honour held that no weight should be given to any lay or expert evidence that was inconsistent with the prior determinations, including evidence that contradicted the determination as to which group of Aboriginal people held native title rights or interests in the determined areas at sovereignty. His Honour made a ruling that certain evidence not be used to undermine an existing determination and that if there was no other legitimate use for the evidence, then no weight should be accorded to it, whether given by an expert or lay witness (at [54], [57], [171]). By way of example, his Honour said of evidence adduced to challenge a claim by the Kokatha people (who were determined to hold native title rights and interests in an adjacent area by a determination referred to in that proceeding as “Kokatha Part A”) (at [193]):

As any evidence or submissions in relation to migration must be considered in accordance with the determination in Kokatha Part A, that at least by sovereignty, the Kokatha People had rights and interests in that country, to the extent that the dates adopted by an expert or experts indicate that the Kokatha People annexed the land to the west of Lake Torrens only post-sovereignty, or are otherwise inconsistent with the findings in Kokatha Part A, no weight has been placed on that evidence. I have also considered the expert opinion evidence which relies in part on those dates, with particular caution. If the necessary premise for an expert opinion is not consistent with the determination in Kokatha Part A, the opinion itself cannot be given weight.

197    As to expert evidence, Mansfield J said (at [190]):

The premises upon which expert opinion evidence is based are fundamental, as expert evidence ‘is only as helpful as the evidence and assumptions on which it is based’:  Anikin v Sierrai (2004) 79 ALJR 452 at [28]. Consequently, to the extent that the expert anthropological views are premised upon the Kokatha People not having native title rights and interests in the area immediately to the west of Lake Torrens at sovereignty, I do not place weight on it. That is not to question the scholarship and integrity of any of the expert anthropologists. But, as a matter of record, the premise referred to is fundamental to the Kokatha Part A determination, and the Court must proceed on the basis of it.  …

198    The Full Court in Starkey v South Australia (2018) 261 FCR 183 found no error in Mansfield J’s approach. Justice Reeves said that one of the most important and fundamental matters disposed of once and for all by a determination of native title is that the native title rights and interests described in it are of a traditional nature in the sense that they have pre-sovereignty origins. It followed, his Honour said, that one of the reasons why the Kokatha Part A determination was made was because the native title holders had established that the rights and interests they had in the area covered by that determination had their origin in traditional laws and customs. A contesting group was incorrect to contend that the determination in Kokatha Part A was not conclusive as to why the Kokatha people held native title rights and interests in that area (at [201]). Accordingly, Mansfield J had not erred in placing no weight on evidence that contradicted the premise that the Kokatha people held native title rights and interests at sovereignty in the area covered by the Kokatha Part A determination and that they had done so at all times since then (at [204]).

199    The remaining propositions are more controversial. They raise questions as to what it means for native title to be held communally and the legal consequences of that meaning in the resolution of the current dispute.

200    The applicant asserted that the native title rights and interests determined in relation to the FWC Land Determination Area were expressed in the determination itself to be held communally. That is not correct. The determination itself states that “the native title rights and interests are for personal, domestic and communal use” (at [11]), but does not specify which of the rights and interests met which of those descriptions.

201    As I have mentioned, the reasons of Mansfield J do contain a reference (at [43]) to members of a society together holding communal rights, title and interests.

202    Some of the argument at trial turned on what was (or was not) encompassed in the concept of communal native title. I already mentioned that early in the trial the applicant submitted that the communal nature of native title necessarily meant that all of the native title holders held rights and interests in all places within the FWC Land Determination Area and hence in the Sea Claim Area. By the conclusion of the trial, the submissions were more nuanced, especially in their explanation as to how the descendants of Kokatha ancestors held native title rights and interests in the coastal areas and, by extension, into the sea.

203    The word “communal” must bear a statutory meaning, for it appears in s 223(1) of the NT Act. It may be understood to reflect the principles discussed by Brennan J in Mabo (No 2). There his Honour said (at 61):

… native title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal usufructuary in nature and whether possessed by a community, a group or an individual. The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld. Of course, in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.  …

(footnote omitted, emphasis added)

204    His Honour continued (at 61 – 62):

…where an indigenous people (including a clan or group), as a community, are in possession or are entitled to possession of land under proprietary native title, their possession may be protected or their entitlement to possession may be enforced by a representative action brought on behalf of the people or by a sub-group or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. Those rights and interests are, so to speak, carved out of the communal native title. A sub-group or individual asserting a native title dependent on a communal native title has a sufficient interest to sue to enforce or protect the communal title. 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.

(footnote omitted)

205    In Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533, Olney J described a claim group as comprising members of five different estate groups asserting traditional connections to the land and sea within a claimed area. His Honour observed that many of them lived on Croker Island while others lived on the mainland, and that they all descended from a related group of patrilineal ancestors who occupied the Croker Islands at sovereignty. His Honour went on to say (at 569 – 570):

…  But not all Croker Island residents are members of a relevant estate group. Those who are not members are not regarded as having, nor do they claim, any traditional rights within the claimed area, and this notwithstanding that their physical connection with Croker Island may go back several generations. Although each estate group asserts traditional rights in respect of discrete areas of land and sea, the members of the several estate groups regard themselves as a single community (hereafter referred to as the Croker Island community) and bring this application on that basis rather than as separate groups or as individuals claiming native title rights and interests in relation to their respective estates. Such an approach was adopted in the declaration made in Mabo (No 2) and is clearly contemplated by the reference in s 223(1) of the Native Title Act to ‘the communal, group or individual rights and interests of Aboriginal peoples ...’. …

206    In Alyawarr FC the Full Court at [81] explained that prior to the decision in Yorta Yorta there had been native title determinations involving multiple groups, and that appeals concerning the composition of the native title holders necessarily turned on the facts found at first instance. Their Honours helpfully summarised some of those cases, including this analysis of the Full Court’s judgment in Ward FC (at [81]):

…  In Ward, Lee J found the Miriuwung and Gajerrong groups, which were territorially adjacent and shared economic and social links, could be regarded as a composite community with shared interests. There was ‘an ancestral connection’ with the Aboriginal community or communities which occupied the claim area at sovereignty. The historical ‘societal’ analysis described in Yorta Yorta was not expressly adverted to. There may be a question whether ancestral connection with a presovereignty community would be sufficient to establish the continuity of traditional law and custom required under the NT Act as interpreted in Yorta Yorta although in context it may amount to a finding of societal continuity. The Full Court rejected a contention on appeal that the evidence before the trial judge did not show that the Miriuwung and Gajerrong people were a single community. Although there were witnesses whose full array of rights only existed in particular estate areas, this did not preclude the existence of ‘a Miriuwung and Gajerrong community which acknowledges and observes traditional laws and customs under which different members of the community employ differing arrays of rights within and outside their particular family or estate country’:  Ward FC 1 at [239]. What this says, relevant to the present case, is that a composite community of estate holding groups may comprise a community which enjoys communal ownership of the native title rights and interests albeit there may be intramural allocations between particular family or clan groups or other sub-sets of the community.

207    Where communal native title is asserted without contest, it will be both unnecessary and inappropriate for the Court to enter into an enquiry as to how rights and interests are intramurally allocated. Such was the case at the time that the proceedings culminating in the FWC Land Determination were resolved by consent. But it does not follow that the making of a native title application precludes for all time and all purposes any forensic enquiry into the content of the traditional laws and customs giving rise to native title rights and interests in the area to which the determination relates. Whether such an enquiry can legitimately be done must depend on the terms of the determination itself, including the detail into which it has descended in identifying the allocation of rights under traditional laws. Much may also depend upon the issues to be tried and the manner in which a party presents its case. In all cases, the outcome of the enquiry cannot contradict or tend to contradict the determination.

208    Returning to the present case, to adopt a phrase from Mabo (No 2), it may be assumed that the native title is enjoyed by the members of the group defined in the FWC Land Determination “according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed” (the emphasis is mine). To say that is not to deny that the native tile is held communally, it is simply to say that the answer to the question is not found on the face of the determination itself, nor is it supplied by necessary implication. Whether all members in fact possess native title rights and interests in all places of the FWC Land Determination Area was not a matter decided by Mansfield J. In the ordinary course, such questions are for resolution under the traditional laws and customs observed by the members. In this proceeding, it would not contradict the FWC Land Determination to find that rights and interests are held differentially by different people, or that some people have rights and interests in some parts of the FWC Land Determination Area but no rights or interests in other parts according to the laws and customs of the society of which they form a part.

209    Nor would it contradict the FWC Land Determination to identify the existence of Aboriginal groups that may be referred to as Mirning, Wirangu and Kokatha people having connections with different places within the FWC Land Determination Area, albeit subject to a body of traditional laws and customs operating at a regional level explaining how relations between the groups are regulated. The reasons of Mansfield J are not evidence in this proceeding, but the concept of a “regional society” was adverted to in his Honour’s reasons (at [57]), including a refence to distinct groups associated with distinct geographical areas with a body of law governing the interactions between them. The phrase “regional society” was used throughout this proceeding in a way that encapsulated that concept. The existence of that society and its legal consequences fall within the scope of the trial on the Preliminary Questions and must be resolved by reference to the evidence.

210    Accordingly, I consider that the applicant’s sixth proposition is wrong in that it attributes a meaning and consequence to the word “communal” that does not accord with the NT Act, nor is it the asserted meaning demanded by the FWC Land Determination itself.

211    A closely related question arising from the applicant’s argument is whether it is permissible to adduce evidence in this proceeding of the traditional laws and customs under which native title rights and interests are held in the FWC Land Determination Area. Again, the answer must depend on how the parties in this proceeding have presented their cases. It happens that both the applicant and the Bunna Lawrie Respondents have invited the Court to draw inferences about the Sea Claim Area based upon facts and circumstances existing on the immediately adjacent landward areas. But they are in dispute about what those facts and circumstances are. This Court’s task in answering the Preliminary Questions cannot be performed without resolving that factual controversy.

212    The case is one in which it is necessary to identify the traditional laws and customs that operate in the FWC Land Determination Area, because that is the very thing that the applicant has invited the Court to do in reasoning to a conclusion that the native title holders in the adjacent Sea Claim Area are those described in the proposed amended Claim Group description. In addition, I am not satisfied that in anthropological terms it is possible to ascertain the existence of and holders of native title in the sea without referring to the traditional laws and customs giving rise to native title rights and interests in (at least) the immediately adjacent coastal lands.

213    The strength of the applicant’s seventh proposition will depend on the outcome of that factual enquiry. Considered in the abstract, there is no difficulty with the proposition that if native title rights and interests exist on the seaward side of the Lowest Astronomical Tide, they must be possessed by those who enjoy those rights and interests on the landward side of the same line. However, as the evidence in this case shows, the further inland one travels from that line, the weaker the argument becomes. That is especially so given the absence of a competing claim in the area of the sea abutting that line. The applicant may well be right in its contention that all persons described in the FWC Land Determination also hold native title in the Sea Claim Area, but the question is a factual one requiring proof. And this Court is not precluded from receiving evidence and making findings that negate the applicant’s case, provided that the negation does not contradict the status of any native title determination as a judgment in rem.

214    To the extent that any evidence was received provisionally pending the resolution of the applicant’s objection to their admissibility based on the above arguments, I now rule that material admissible. I further rule that the material is not to be used for any purpose that would contradict any of the native title determinations summarised in Part 5 of these reasons.

PART 7:  THE SOURCES OF EVIDENCE

On country sessions

215    A trial was conducted over 28 days. All of the participating parties were legally represented except for Michael Laing and Robert Lawrie. For the purposes of the trial, the Court granted Robert Lawrie leave to be represented by a non-lawyer (Michael Laing).

216    Proceeding eastward, the Court heard place-specific evidence at Ceduna, Point Brown, Laura Bay, Duck Pond, Davenport Creek, Denial Bay, Clare Bay (two locations), Fowlers Bay, Munama, Gilgerabbi, and Merdayerra Sandpatch. In addition, the Court heard evidence whilst on board a boat (the Asherah) at three plotted locations in the water, one in the vicinity of Kennard’s Point and two in the vicinity of St Peter Island. Views under s 54 of the Evidence Act were conducted at two locations, one on board the Asherah and the other near Gilgerabbi. The co-ordinate locations of the Court sitting in the vicinity of Kennards Point were 32 degrees, 12 minutes and 40 seconds south and 153 degrees, 41 minutes and 51 seconds east. In the vicinity of St Peter Island they were 32 degrees, 40 minutes and one second south and 133 degrees, 36 minutes and 58 seconds east. At Gilgerabbi they were 31 degrees, 36 minutes and 22 seconds south and 130 degrees, 45 minutes and 17 seconds east.

217    The remainder of the trial was held in Adelaide, with some witnesses attending for cross-examination remotely by a video link.

Aboriginal witnesses

218    Aboriginal witnesses gave their evidence-in-chief partly by way of affidavit and partly viva voce. The witnesses are listed here in the order in which their evidence will later be summarised. Whilst their affidavits are also listed, I do not consider it necessary to set out in these reasons every ruling I have made on objections to the affidavit material, nor my rulings as to limitations on the purposes for which the affidavits were received. The rulings are discernible from the transcript.

219    The Aboriginal witnesses called by the applicant were:

(1)    April Lawrie (affidavits affirmed 30 March 2021 and 29 March 2022);

(2)    Clem Lawrie (affidavits affirmed on 25 March 2021 and 8 February 2022);

(3)    Peter Miller (affidavit filed on 5 August 2019);

(4)    Neville Miller (affidavit filed on 5 August 2019);

(5)    Wanda Miller (affidavit affirmed 21 December 2021);

(6)    Simon Prideaux (affidavit affirmed on 26 June 2019);

(7)    Wayne Haseldine (affidavit filed on 5 August 2019);

(8)    Arthur Catsambalas (affidavit affirmed on 25 June 2019;

(9)    Alan Haseldine (affidavit affirmed 3 May 2021);

(10)    Oscar Richards (affidavits affirmed on 24 March 2021 and 14 March 2022);

(11)    Gavin Peel (affidavit filed 10 March 2022); and

(12)    Barry Johncock (affidavit affirmed 10 December 2021).

220    The applicant also relied on an affidavit of Penong Miller affirmed 2 August 2019 (deceased at the time of the trial) as well as a transcript of preservation evidence provided by Dorcas Miller in July 2019. In addition, a solicitor’s affidavit annexed video evidence.

221    The Aboriginal witnesses called by the Bunna Lawrie Respondents were:

(1)    Bunna Lawrie (affidavits affirmed 31 March 2021 and 9 February 2022);

(2)    Dorcas Miller (affidavit affirmed 1 April 2021);

(3)    Rose Miller (affidavit affirmed 1 April 2021);

(4)    Meegan Sparrow (affidavit affirmed 1 April 2021);

(5)    Lloyd Jim Larking (affidavit affirmed 4 September 2018);

(6)    Cecelia Coaby (affidavit sworn 18 March 2021);

(7)    Constance Mundy (affidavit sworn 17 March 2021);

(8)    Heinz Burgoyne (affidavit affirmed 17 March 2021);

(9)    Rosaleen Jenner (affidavit affirmed 17 September 2019);

(10)    Yirgjhilya-Mary Lawrie (affidavit affirmed 20 August 2019);

(11)    Arruna-Thutha Lawrie (affidavit affirmed 14 August 2019);

(12)    Jason Scott (affidavit affirmed 7 August 2019);

(13)    Melville McNamara (affidavit sworn 19 February 2021);

(14)    Kaylene Fowler (affidavit sworn 17 March 2021); and

(15)    Max Harrison (affidavit affirmed 8 April 2021).

222    Michael Laing relied on his own affidavits (or parts of them) dated 10 July 2009, 28 September 2009, 20 November 2012, 5 June 2017, 1 July 2017, 24 September 2018, 5 August 2019, 7 January 2022 and 2 March 2022 as well as an affidavit of Robert Lawrie dated 22 March 2021. Robert Lawrie suffered from health issues at the time of the trial and was not cross-examined.

Lay evidence called by the State

223    In addition to the expert evidence discussed below, the Court received affidavit evidence from a number of lay witnesses called by the State, some of whom were cross-examined. They were:

(1)    Samuel Nelson (affidavit affirmed 24 June 2021);

(2)    Peter Colin Codrington (affidavit sworn 29 September 2021);

(3)    Trevor Puckridge (affidavits affirmed 27 September 2021 and 2 November 2021);

(4)    Perry Will (affidavit affirmed 30 September 2021);

(5)    Philip Geoffrey Jones (affidavit affirmed 30 September 2021);

(6)    John Howell (affidavit affirmed 19 November 2021); and

(7)    Jorg Hacker (affidavit affirmed 11 January 2022).

Documents

224    Much of the documentary evidence is collated in a single court book running to many thousands of pages. Other documents (including books, maps and photographs) were tendered outside of the court book and separately numbered as exhibits. The documentary evidence includes the field work papers and manuscripts of early anthropologists as well as other source materials upon which the expert evidence was based.

225    Some evidence was received in video form. It includes:

(1)    three videos depicting Clem Lawrie climbing down steep areas in the vicinity of the Bunda Cliffs;

(2)    12 videos annexed to an affidavit of Bunna Lawrie in which he gives place-specific and other additional evidence-in-chief;

(3)    extracts from documentaries titled “Whale Dreamers” and “Always Have Always Will”; and

(4)    aerial footage of the length of the Bunda Cliffs.

Expert reportsExpert reports

226    There are more than 30 expert reports before the Court. I will here identify them and briefly introduce their authors. There was no suggestion that an expert witness was not suitably qualified to express the opinions in their reports. According all respect to their qualifications and experience I will throughout these reasons (with one exception) refer to them by their surnames only. The exception is that Dr John McCarthy will be named in full so as not to confuse him with another expert having the same surname.

227    Mr Robert Graham holds a Bachelor of Arts (First Class Honours) from the University of Adelaide, with a major in Anthropology. He has worked as an Aboriginal anthropologist since 1982. He has undertaken work for Central Land Council, Aboriginal Areas Protection Authority and Northern Land Council, and at the time of his reports was a Senior Anthropologist at South Native Title Services (SANTS). He is the author or co-author of the following reports adduced on the applicant’s case:

(1)    “Anthropology Report” dated 31 March 2021 (Graham 1);

(2)    “Responsive Reports” dated 31 July 2021 (Graham 2);

(3)    “Responsive Anthropology Report” co-authored with Dr Belinda Liebelt dated 13 October 2021 (Graham/Liebelt 1), to which is appended an Apical Appendix titled “Response to ‘The Ancestors of the Claimant Group, Part 2 Contemporary Position for the Applicant Mirning Eastern Sea and Land Claim SAD76 of 2021’ dated 12 October 2021; and

(4)    “Changed Opinions Report” co-authored with Dr Belinda Liebelt dated 14 October 2022 (Graham/Liebelt 2) in a redacted form provided to the Court on 14 December 2022.

228    Dr Belinda Liebelt holds a Bachelor’s degree in Archaeology (First Class Honours, Flinders University) and a PhD in Archaeology and History (University of Western Australia). She has worked as a heritage consultant in archaeological and anthropological fields since 2006. She works as a senior anthropologist affiliated with SANTS and is an adjunct staff member at Flinders University. She is a co-author of Graham/Liebelt 1 and Graham/Liebelt 2, and the author of the following:

(1)    “Responsive Archaeological Report” dated 31 August 2021 (Liebelt 1); and

(2)    “Response to ‘Expert Genealogical Report of Sue McBeth’ dated 3 March 2022” dated 6 April 2022 (Liebelt 2).

229    Dr Paul Black has a Bachelor of Arts from Indiana University, a Master of Philosophy and a PhD in linguistics from Yale University. Among other roles, he has been a visiting scholar of Georgetown University and University of Hawaii, a visiting lecturer at Waseda University, and a faculty member of Northern Territory University (now Charles Darwin University). He is the author of a report adduced on the applicant’s case dated 11 October 2021, titled “Great Australian Bight Overlap Proceeding Far West Coast Sea Claim (SAD71/2016) & Mirning Eastern Sea & Land Claim (SAD76/2016, Part A) Linguistic Commentary on Anthropological Reports” (Black 1). He also authored a correcting report dated 6 April 2022 and titled “Corrections to my report of 11 October 2021” (Black 2). Those reports were not marked as exhibits at the time of the trial. I now mark them Exhibit S45E and S46E respectively.

230    Ms Ann Florence Nicholson is an archaeologist. She is the author of reports prepared in the early 1990’s for the Australian Heritage Branch of the South Australian Department of Environment and Planning relating to coastal archaeological sites between Fowlers Bay and Elliston. Her research focussed on coastal habitation sites and was later revised and republished in a Masters of Arts from the Australian National University. Those documents are before me as:

(1)    “Archaeology on the Anxious Coast: Archaeological Investigations on the West Coast of the Eyre Peninsula, South Australia” dated May 1991 (filed 31 May 2021) (Nicholson 1); and

(2)    “Archaeology on an Arid Coast Environmental and cultural influences on subsistence economies on the West Coast of South Australia” dated April 1994 (filed 31 May 2021) (Nicholson 2).

231    Dr Lee Sackett holds a Bachelor of Arts in Anthropology from Fresno State College and a Master of Arts and PhD in Anthropology from the University of Oregon. He is an anthropological consultant who has held positions at various universities in Australia and the University of Oregon and has been published extensively. He authored the following reports adduced by the State:

(1)    “Far West Coast Sea Claim Native Title Application (SAD 71/2013):  A Responsive Report” dated 31 May 2021 (Sackett 1);

(2)    “Great Australian Bight Proceedings (Far West Coast Sea Claim and Mirning Eastern Sea and Land Claim):  Supplementary Responsive Report” dated 7 October 2021 (Sackett 2); and

(3)    “Great Australian Bight Proceedings (Far West Coast Sea Claim and Mirning Eastern Sea and Land Claim):  Further Supplementary Responsive Report” dated September 2022 in a redacted form provided to the Court on 14 December 2022 (Sackett 3).

232    Dr Patrick Alan Hesp is a Strategic Professor in Coastal Studies at Flinders University, an Emeritus Professor in Geography and Anthropology, Adjunct Professor in Geology and Geophysics, a member of the Coastal Studies Institute (Louisiana State University), and an Adjunct Professor in the Department of Geography (University of Victoria). He holds a Bachelor of Arts in Physical and Human Geography, a Master of Arts (Hons) in Geomorphology from Massey University and a PhD in Coastal Geomorphology from the University of Sydney. He is the author of the following reports adduced by the State:

(1)    “Surfzone-Beach-Nearshore Conditions and Hazards relating to the Far West Coast Sea Claim Region” dated May 2021 (filed 31 May 2021) (Hesp 1);

(2)    “Review and Critique of McCarthy and Benjamin (2020) Technical Report” dated August 2021 (filed 31 August 2021) (Hesp 2);

(3)    “Coastal Types, Bunda Cliff Dynamics and Issues relating to the Great Australian Bight Overlap Proceeding Technical Report” dated October 2021 (filed 27 October 2021) (Hesp 3); and

(4)    “Sea conditions between the Great Australian Bight overlap proceeding-Far West Coast Sea Claim Region and Esperance, and environmental conditions during the last glacial maximum period” dated November 2021 (filed 18 November 2021) (Hesp 4).

233    Mr Tom Gara is an historian. He holds a Bachelor of Arts (Hons) from the University of Adelaide, is a member of the Professional Historians Association of South Australia and the Australian Institute of Aboriginal and Torres Strait Islander Studies and has authored many publications on South Australian Aboriginal culture and history. He is the author of the following reports adduced by the State:

(1)    “Far West Coast Native Title Sea Claim (SAD 71/2016) Expert Historical Report” dated 31 May 2021 (filed 1 June 2021) (Gara 1);

(2)    “Great Australian Bight Overlap Proceeding (SAD 76/2021) Expert Historical Report of Tom Gara in response to Redmond & McCarthy” dated 18 October 2021 (filed 18 October 2021) (Gara 2); and

(3)    “Far West Coast Sea Claim (SAD 71/2016) Supplementary Expert Historical Report of Tom Gara” dated 23 November 2021 (filed 23 November 2021) (Gara 3).

234    Dr Charlie Huveneers is an Associate Professor at Flinders University and holds a Bachelor of Science (Hons) from the University of Southampton and a PhD in Environmental Science from Macquarie University. His research has recently focussed on shark ecology and population and the response to anthropogenic activities. He is the author of a report (adduced by the State) titled “Great Australian Bight Overlap Proceedings (Far West Coast Sea Claim [SAD 71/2016] and Mirning Eastern Sea and Land Claim [76/2021]):  Shark distribution and abundance” dated October 2021 (filed 8 October 2021) (Huveneers 1). He was not required for cross-examination.

235    Dr John McCarthy and Dr Jonathan Benjamin FSA are the co-authors of two reports adduced by the Bunna Lawrie Respondents. Dr McCarthy is a research fellow and senior lecturer at Flinders University. He holds a PhD in Archaeology from Flinders University (2020), a Master of Philosophy from Queens University Belfast (2007) and a Bachelor of Arts majoring in History from Trinity College Dublin (2004). Benjamin is a professor at Flinders University. He holds a PhD in Archaeology from the University of Edinburgh (2007) and a Bachelor of Arts majoring in Anthropology from the University of California Los Angeles (2000). Their reports are:

(1)    “Baseline assessment of Submerged Landscapes in South Australia:  Strategic Review of Archaeological Potential” dated 31 December 2020 (filed 28 April 2021) (McCarthy/Benjamin 1); and

(2)    “Baseline assessment of Submerged Landscapes in South Australia:  Responsive report to Liebelt and Hesp reports” dated 30 September 2021 (filed 30 September 2021) (McCarthy/Benjamin 2).

236    Dr Anthony James Redmond holds a Bachelor of Arts (Hons) in Anthropology and a PhD in Anthropology from the University of Sydney. He is a consultant anthropologist who has conducted native title research for various native title representative bodies. He co-authored the following reports adduced by the Bunna Lawrie Respondents:

(1)    “Traditional owners of the coastal waters of the Great Australian Bight:  Part 1 at-sovereignty” dated 30 April 2021 (filed 30 April 2021) (Redmond/McCarthy 1);

(2)    “Connection Report (Part 2 Contemporary Position) for the Applicant Mirning Eastern Sea and Land Claim SAD76 of 2021” dated 27 August 2021 (filed 27 August 2021) (Redmond/McCarthy 2);

(3)    “The Ancestors of the Claimant Group, Part 2 Contemporary Position for the Applicant Mirning Eastern Sea and Land Claim SAD76 of 2021” dated 1 September 2021 (filed 1 September 2021) (Redmond/McCarthy 3);

(4)    “A response to objections raised by the State of South Australia, South Australian Native Title Services and the Commonwealth of Australia in the Far West Coast Sea Claim (SAD 71/2016)” dated 23 March 2022 (filed 23 March 2022) (Redmond/McCarthy 4);

(5)    “Response to objections Errata Far West Coast Sea Claim (SAD 71/2016)” dated 7 April 2022 (filed 7 April 2022) (Redmond/McCarthy 5);

(6)    “An Anthropological Report to Charlesworth J. FCA” dated 21 June 2022 (filed 22 June 2022) (Redmond /McCarthy 6); and

(7)    “Report of Changed Opinions Concerning Apical Ancestors (rev 1) Far West Coast Sea Claim SAD71/2016” revised 25 January 2023 (Redmond /McCarthy 7).

237    Ms Diana Linda McCarthy holds a Bachelor of Arts (Hons) in Anthropology from the University of Sydney. She is an anthropologist who has managed research projects for native title claims across Victoria. She is the co-author with Redmond of the seven reports described above.

238    Dr Philip Jones is a Senior Researcher at the South Australian Museum with qualifications and experience in Aboriginal marine culture and responsibilities for managing a large collection of artefacts collected from regions around Australia.

Expert pre-trial conference

239    A pre-trial conference of experts took place 26 to 28 October 2021. At that time, the Sea Claim Area was as then described in the originating application, and had not been reduced at its eastern extent. That was also the state of affairs when most of the expert reports now before me were prepared. As such, the reports speak of places as falling within the Sea Claim Area (such as the eastern portions of Streaky Bay) that no longer form a part of it.

240    The conference was attended by Graham, Liebelt, Black, Redmond, McCarthy, Dr McCarthy, Benjamin, Sackett, Nicholson, Gara and Hesp. It culminated in a report titled “Report of Conference of Experts 26-28 October 2021” dated 2 November 2021 (Conference 1). It takes the form of brief responses to propositions and questions prepared with the assistance of a Registrar, to which the witnesses expressed agreement or disagreement with added brief commentary in places to explain or qualify their views.

Concurrent evidence sessions

241    Some of the expert witnesses gave oral evidence concurrently in sessions spanning over a number of days.

242    At the first concurrent session six of the experts (Redmond, Sackett, Graham, Liebelt, McCarthy and Gara) engaged with anthropological, historical and genealogical issues over four days.

243    At the second concurrent session Nicholson and Liebelt gave evidence concerning the inferences that may be drawn from the available archaeological record.

244    Jones was cross-examined separately on topics relating to the collection at the South Australian Museum.

245    Black was cross-examined separately on languages spoken at places in the vicinity of the Sea Claim Area at sovereignty.

PART 8: EVIDENCE AND PROCEDURE

Evidence adduced for a hearsay purpose

246    Under s 82(1) of the NT Act, the Court is bound by the rules of evidence except to the extent that the Court otherwise orders. Subject to exceptions, the rule against hearsay applies. Section 60 of the Evidence Act establishes an exception to that rule, facilitating the admission into evidence of out of court statements for the purpose of establishing their truth. The application of that exception was the subject of argument concerning hearsay statements contained in the body of expert reports, largely resolved by a ruling at trial. Reasons for that ruling are given in Miller v State of South Australia (Far West Coast Sea Claim) (No 3) [2022] FCA 466 (Miller (No 3)). I there concluded that the material fell within exceptions to the hearsay rule (specifically the exceptions in s 60 and s 72 of the Evidence Act) and was therefore admissible. I explained why I did not consider the State or other respondents to be unfairly prejudiced by its admission into evidence. However, I also explained that whilst the hearsay statements were admissible, their hearsay nature may be taken into account when assessing the weight that should be afforded to them. Generally speaking, the weight of a hearsay statement may be diminished if the maker of the statement is not available to be cross-examined (or is not called as a witness even if available) although much will turn on the facts and circumstances of the particular case.

247    It is not unusual in a case of this kind to admit into evidence past statements of persons who have died a long time ago. I have assessed the weight of evidence of that kind having regard to the evidence as a whole, seeking where possible a general direction, theme or pattern emerging from the materials. In closing submissions there was at times a tendency to seize upon words or phrases recorded by early anthropologists or informants as lending support for an argument or proof of an asserted fact. However, so far as it is possible, I have attempted to avoid adopting a proposed interpretation of an individual record where that interpretation finds insufficient support elsewhere in the materials or is otherwise ill-fitted to a general picture emerging from the whole of it.

Evidentiary status of the reports of Dr Kingsley Palmer

248    Several of the witnesses referred in their reports to work conducted by Dr Kingsley Palmer for the purposes of informing the State’s assessment of the claim culminating in the FWC Land Determination. The reports (together the Palmer Reports) are as follows:

(1)    “Far West Coast Native Title Application SAD 6008/98 Draft Anthropologist’s Report” dated 2009 (Palmer 1); and

(2)    “Far West Coast Native Title Application SAD 6008/98 Customary Rights of the Descendants of Gordon Naley Anthropologist’s Report” dated 2009 (Palmer 2).

249    Palmer was not called as an expert witness in this proceeding. I have nonetheless received the Palmer Reports into evidence but have restricted their forensic use. They assist the Court to understand the opinions of those experts who were called to give evidence at the trial. Several of those witnesses referred to material contained in the Palmer Reports for various purposes, principally in order to express agreement or disagreement with his opinions. I have concluded that the Palmer Reports should be admitted for the purpose of supplying necessary context to the opinions of other experts whose reports are before me. However, the mere fact that an expert before me referred to the Palmer Reports does not serve to prove the truth of the assertions of fact contained in those reports, nor does it bring them before me as opinion evidence in its own right. The weight to be given to the evidence of experts who adopted or rejected the opinions contained in the Palmer Reports is of course a different question. As the Commonwealth correctly submitted, little or no weight should be afforded to the opinion of experts who have adopted Palmer’s opinions without any independent scrutiny or analysis of their own.

Changes of opinion

250    Annexure A to the Federal Court of Australia’s Expert Evidence Practice Note (GPN-EXPT) is titled “Harmonised Expert Witness Code of Conduct”. Clause 4 is headed “Supplementary Report Following Change Of Opinion”. It states:

Where an expert has provided to a party (or that party’s legal representative) a report for use in Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party’s legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i), (j), (k) and (l) of clause 3 of this code and, if applicable, paragraph (f) of that clause.

See also:  Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA (at [79.6]) citing Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68 (at 81 – 82]). The Court received supplementary reports from a number of experts following the conclusion of oral closing submissions.

Cultural and customary concerns

251    Section 82(2) of the NT Act provides that:

In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

252    Division 34.7 of Pt 34 of the Rules applies in native title proceedings. The rules of evidence apply, subject to that Division:  r 34.120(1). Rule 34.120 facilitates applications for orders restricting (among other things) the manner in which evidence may be presented to the Court, access to documents or transcripts or the content of any pleading. A party may bring an interlocutory application under r 34.121 for an order to take account of the “cultural or customary nature of a party or of another person”. The phrase “cultural or customary nature” is defined to mean “of a nature relating to the culture, genealogy, customs or traditions of Aboriginal peoples or Torres Strait Islanders”:  Rules, r 34.119.

253    Prior to the trial the parties were invited to make requests to the Court for the modification of its procedures so as to accommodate and assuage cultural and customary concerns. By the commencement of the trial and throughout the course of the Aboriginal lay evidence, the applicant had made no application for any witness to give evidence in a closed court. That is notwithstanding multiple statements in the affidavits expressing a reluctance to say something on a topic other than in a restricted session. At the commencement of the trial the only application for a restricted evidence session related to a part of the evidence in chief of Bunna Lawrie. Later in these reasons I will discuss the consequences of the applicant’s choice not to make an application to facilitate the taking of restricted evidence, including a ruling dismissing an application to adduce further lay evidence after the concurrent session of experts.

PART 9:  SOVEREIGNTY, SETTLEMENT AND ETHNO-HISTORICAL MATERIAL

254    Between 1788 and 1825, the western boundary of what was then New South Wales extended to 135 degrees east longitude to near the township of Elliston. The boundary was extended further westward in 1825 to 129 degrees, placing it at what is now the State Border. That puts the date of assertion of sovereignty over the Sea Claim Area at 1825.

255    When the province of South Australia was established in 1836, there existed a portion of land between 135 degrees east longitude (then the west border of the Swan River Colony, now Western Australia) and 129 degrees east longitude (then the east border of what is now Western Australia) known as “No-Man’s Land”. That narrow strip remained under the responsibility of New South Wales until it was transferred to South Australia by Letters Patent in 1861. Until then South Australia had no jurisdiction over it and New South Wales had no apparent interest or effective control over it.

256    There is general agreement among the experts that Aboriginal connection to, and occupation of the areas in issue continued substantially uninterrupted between 1825 and the time of first sustained contact between them and European settlers (known as effective sovereignty).

257    Given the vast distance covered by the area in question and the progression of the frontier over it, the date of effective sovereignty cannot be identified with precision. European settlement at the eastern extent of the land area predated settlement in or near the western portion by more than a decade. On the basis of the events described in this section of my reasons, I find that effective sovereignty occurred over a period between the 1860’s and the 1880’s, progressing westward from the area around Streaky Bay to the State Border and beyond into Western Australia.

Colonisation on the land adjacent to the Sea Claim Area

258    As is commonly the case, European contact in the land area adjacent to the Sea Claim Area had catastrophic consequences for the Aboriginal people situated there. Whilst there is little dispute about the dates of effective sovereignty, and whilst little turns on the width of the date range, it is convenient at this point to give a chronological narrative of European contact, if only to introduce those who kept the records that now form the ethnographic material before the Court.

259    The following narrative also provides some historical context in which the ethnographic record is to be understood and to some extent explains the caution with which I have approached some of it. I will take the opportunity in this part of my reasons to introduce places, people and events that are referred to in the lay and expert evidence.

260    The chronology of events largely relates to European settlement of the land, with only intermittent references to the sea. However, all of the parties accepted that the determination of native title rights and interests in the Sea Claim Area involved (to different degrees) a process of extrapolation or inferences drawn from facts and circumstances as they exist in coastal areas more generally. The narrative also incorporates land to the east and west of the FWC Land Determination Area having no common boundary with the Sea Claim Area, all parties accepting that an examination of those eastward and westward places bear some relevance to the disputed questions.

261    Much of the history that follows is drawn from the reports of Gara and Graham.

Early explorers and surveyors

262    A Dutch ship (the Golden Seahorse) captained by Francis Thijssen charted the southern coastline of what was then known as New Holland in 1627. Dutchman Peter Nuyts was aboard the ship, and some islands were named after him. Their map has little detail and there is no recorded impression of what he saw.

263    In 1802 Captain Matthew Flinders explored the coastline in the Investigator naming a number of landmarks. His voyage followed the “extraordinary bank” of the Bunda Cliffs at what he referred to as the “great bight or gulph of New Holland”.

264    The French explorer Nicolas Baudin (aboard the Le Geographe) mapped the area westward as far as Fowlers Bay in 1802.

265    Both Baudin and Flinders saw evidence of Aboriginal occupation of the land, including footprints and smoke from fires and some decayed spears. Neither reported signs of Aboriginal presence on the islands within or adjacent to the Sea Claim Area. Nor did they record any observations of Aboriginal people fishing, swimming or consuming shellfish.

266    Edward (John) Eyre explored the coast from Streaky Bay to Eucla (and eventually through to Perth) in late 1840 and early 1841. Aboriginal people from Fowlers Bay helped him to find water by digging in the sandhills around the Head of the Bight. Eyre’s journal records contact with Aboriginal people at Streaky Bay, Denial Bay, Fowlers Bay and Head of the Bight. He recorded no observations of Aboriginal people catching or consuming fish, using watercraft, swimming or wading in the sea or visiting offshore islands.

267    Commenting on the Bunda Cliffs, Eyre remarked:

… distressing and fatal as the continuance of these cliffs might prove to us, there was a grandeur and sublimity in their appearance that was most imposing, and which struck me with admiration.

268    The accounts of explorers Stephen Hack, John MacDougall Stuart, Peter Warburton and John Forrest say little about their encounters with Aboriginal people during their explorations in the 1850’s and 1860’s.

269    The region around Streaky Bay was explored by Samuel Stephens and John Hill. Stephens reported that there was an abundance of whales, and whaling activities commenced soon afterward. Stephens reported shelters and wells on Flinders Island. Hill made this observation of the Aboriginal people he saw in the area:

The few natives we saw in Streaky Bay had a most wretched and emaciated appearance, a strong inducement to believe that no river of magnitude or good country does exist near … evidently showing that food must be scarce and difficult to procure (Harris, 1938:7).

270    Surveyor Edmund Alexander Delisser crossed the Nullarbor Plain from south to north in 1862, seeking grazing land on behalf of Victorian pastoralists. In 1865 he was sent to investigate the establishment of a port near Eucla. On his journeys, Delisser travelled from the Head of the Bight to Eucla following paths made by Aboriginal people. He reported finding good sources of water in the sandhills at the Head of the Bight and sighting Aboriginal people there who he described as “very obliging, but apparently much frightened”. He recorded the “extreme paucity in the numbers of the natives”, adding that they appeared to subsist on wallabies and snakes. Delisser named the Nullarbor Plain in 1866 whist in an area north of Eucla, recording:

The Nullarbor Plain I met here, as not a tree did I see from hence to the north.

271    In 1868, two well sinkers then working at Fowlers Bay were led to Ooldea Soak by Aboriginal men from Fowlers Bay. Graham identifies the men as Wirangu, but the source of that attribution is unclear and I will not act on that aspect of his opinion.

272    In 1875, explorer Ernest Giles was guided by a Wirangu Man “Jimmy” on his travels to Fowlers Bay, Colona, Ifould Lake, Pidinga and Ooldea (Collins 2013:34-5). He wrote, at a time close to effective sovereignty in the area:

When asked concerning the country to the north, he [Jimmy] declared it was Cockata, the country to the west was also Cockata, the dreaded name of Cockata appearing to carry a nameless undefined horror with it. The term of Cockata blacks is applied by the Fowlers Bay natives to all other tribes of aboriginals in the country inland from the coast and it seems … they always lived in terror of their enemies to the north … Occasionally a mob of these wilder aboriginals would make a descent upon the quieter coast blacks, and after a fight would carry off women and other spoils, such as opossum rugs, spears, shields, coolamins … and they usually killed several of the men of the conquered race.

(footnote omitted, emphasis added)

Ration stations

273    A ration station was established at Fowlers Bay in 1866, very soon after effective sovereignty.

274    The ration stations supplied flour, tea, sugar, tobacco and blankets and are recorded in the ethnographic record as an attraction point for Aboriginal People.

Police stations

275    Police stations were established at Streaky Bay in 1858 and in Fowlers Bay in 1861. In the few years prior there had been some police presence in the area, specifically to investigate the stabbing of a well sinker and the murder of another employee of pastoralists.

276    Police Trooper Richards from Fowlers Bay made at least three journeys westward to Eucla in the early 1870’s. On the first journey (1871) he conducted a census of Aboriginal people there. He made further visits in 1873 and 1874, apparently to investigate reports of violent encounters between settlers and Aboriginal people.

277    From the early 1860’s, police stations at Fowlers Bay and Penong doubled as ration stations under the supervision of the so-called Protector of Aborigines.

278    Three police troopers feature in the ethnographic material as either making direct records or acting as informants for later researchers. Police Trooper Geharty made observations of the movements of Aboriginal people in the vicinity of Fowlers Bay and Streaky Bay between a period soon after effective sovereignty. Later in these reasons I will draw on some of his reports concerning the seasonal movement of Aboriginal people in the pre-sovereignty period.

279    Police Trooper Provis (stationed at Streaky Bay) is referred to as an informant in Taplin’s The Folklore Manners, Customs and Languages of the South Australian Aboriginies in a section titled “The Tribes of the Western District, Port Lincoln to Fowler’s Bay”. Provis referred to the “Ku-ka-tha” tribe, reporting that they seldom remained more than few weeks in one place, and that they inhabited country between Venus Bay and Point Brown and inland to the Gawler Ranges, moving to Port Lincoln and Fowlers Bay. Trooper Provis observed Aboriginal people sealing abalone shell with resin for use as a water carrier.

Sealers

280    Sealing crews operated in the Sea Claim Area from the 1820’s through to the 1860’s. Gara described the activities of sealers throughout the colony in forcibly taking Aboriginal women as slaves and trading them. He recorded the taking of an Aboriginal woman, Charlotte, from Encounter Bay to Flinders Island (within the Sea Claim Area) in 1820. She was later rescued in 1845.

281    Populations of fur seals on the islands along the southern coast of Australia had been virtually exterminated by the 1850’s and the sealers then turned their attention to the deeper waters of the Southern Ocean.

Whalers

282    Southern right whales use the bays along the west coast as nurseries at various times of the year. Before sovereignty, international whaling vessels (and vessels from Sydney and Hobart) frequented the area, but there are no relevant records of their observations onshore. The operations included the establishment of seasonal stations where workers were left for a time before being picked up by ships months later along with the whale products they had accumulated.

283    Between 1840 and 1844, 65 whales were taken from the area around Fowlers Bay where a base had been established. There was some early contact between Aboriginal people and whalers around that time, both at Fowlers Bay and at other stations established around Point Collinson and Point Brown (near Streaky Bay). Whaling crews established other stations at St Peter Island (near Ceduna) and St Francis Island within the Sea Claim Area as well as on Flinders Island (in waters off Elliston, outside of the Sea Claim Area). In 1845, Captain James Robinson (on board the schooner Abeona) made this observation from the whaling station at Point Collinson:

I found Streaky Bay a risky harbour, the entrance sheltered on the east by some nasty looking breakers …  The country near the beach is skirted by low sand ridges, about from thirty to forty feet high. The natives were not allowed to come down off the ridges to the fishery without permission. (Parkinson, 1997:65)

284    Graham described other devastating impacts of colonisation, specifically for Aboriginal women:

Another encounter between whalers and the Aboriginal population seems to have turned violent. Three men remained at a whaling port awaiting a ship for their return and two bodies were later found. One man said to have ‘gone to find a ‘black girl’’ never returned while another was reportedly speared through the hand and escaped by whaleboat to Franklin Island (off Smoky Bay) but later perished, the third succumbed to starvation or dehydration (Parkinson, 1997: 68). This mention of kidnapping of ‘native’ women was a reality in this period. Many Aboriginal women were forcibly removed or traded to be domestics, wives and work on ships from locations where whaling and sealing activities were operating (Anderson, 2016:38).

(footnote omitted)

Pastoralists and settlers

285    The first sheep stations were established in the area around Streaky Bay in the 1850’s. From there, the establishment of pastoral stations progressed westward from about the 1860’s. Many leases were taken up, although most of them were neither occupied nor stocked.

286    Robert Barr Smith took out leases on St Francis Island and St Peter Island in or around 1859 and used them for agricultural purposes.

287    During the 1860’s and 1870’s the only permanently occupied stations west of Fowlers Bay were those at Colona, Nallanippie and Wookata. From 1866, Yalata Station ran sheep at a summer outstation at the Head of the Bight, named “Bight Station”. Sheep were watered there from wells in the sandhills, then relocated further into the scrub during winter rains.

288    In 1887, Nullarbor Station was established about 25 km west of Head of the Bight. Ten years later a bore was sunk at White Well near Bight Station and operations were moved there. The Nullarbor and White Well stations continued to operate until well into the twentieth century.

289    Koonalda Station (about 100 km west of Nullarbor Station) was not established until the 1940’s.

290    Further west, white settlement did not occur until the 1870’s. In March 1872 the Muir family from Albany established the Moopina Station on the Hampton Escarpment, a few kilometres from Eucla in Western Australia. For some years, Moopina homestead’s only means of contact with the outside world was via an Aboriginal man named “Mailman Jimmy” who carried mail and other messages on foot between Eucla and Fowlers Bay, a round trip of some 750 km, each trip taking three weeks to accomplish.

291    Other stations were established in the years that followed, including the Mundrabilla Station about 100 km west of Eucla in February 1873. These lands are to the west of the FWC Land Determination Area but they form part of the relevant history of the wider region and help to explain why Aboriginal people might have been situated in specific places at relevant times.

The telegraph line

292    Work on a telegraph line linking Adelaide to Perth commenced in 1876 and was completed in December 1877. The line followed an east-west track between Fowlers Bay and Eucla that had been surveyed by Delisser in 1867. Rainwater tanks were installed at intervals along the route and overland traffic increased significantly after the completion of the line.

293    Telegraph stations were established at Streaky Bay, Fowlers Bay and Eucla. Station masters and telegraph workers are among the informants in the early ethnographic material, including Mr W Williams, Mr W Graham and Mr DE Roe. Their reports were given to missionaries, researchers and anthropologists who later studied Aboriginal populations there and across the continent (including Rev Taplin, EM Curr and AW Howitt, discussed below). Graham observed that the material provided by telegraph station informants is among the earliest (if not the most detailed) recorded in the region.

294    Telegraphist WC Evans (based at Eucla) took photographs in the vicinity of Merdayerra Sandpatch between 1901 and 1907. In an article published in 1921 he said:

In the distance about 8 miles white sandhills are noticeable in the photo. The cliffs just leave the sea for a mile or two, and then return to the coast. The blacks call this place ‘Mudie-Yarra’. Or, in English ‘Fish-hole.’ East of the sandhills is a rocky bottom on the shore, which at low water is covered by about 2 ft. to 3 ft. of water. Out about 50 yards is a hole in this rocky ledge of shore front like a room. It is about 10 ft. deep, and one can walk around it up to the waist. The hole goes in under the rocks, as no fish are visible, yet the blacks find them, and hence its name. The whites get the fish easier, for one plug of dynamite has brought up a cwt. of fine sweep (Evans, 1921: 96-7).

Missions and children’s homes

295    In 1898, a parcel of 16,000 acres of land was taken up by the Lutheran Church for the establishment of the Koonibba Mission near Denial Bay. Aboriginal people were used as labourers, first to clear the land and generally to provide work in exchange for government rations. The first missionary, Pastor Weibusch arrived in 1901 and Carl Hoff worked there as a linguist in the 1920’s. Their reports suggest that initially the Wirangu language was most commonly spoken there, but by the 1920’s the Kokatha language had come to dominate. Records of the Aboriginal people who lived there are kept in the Lutheran Archives, and Norman Tindale compiled genealogies of many of the residents there in 1939.

296    Some time early in the twentieth century, the Lutheran Church acquired a perpetual lease of 4,500 acres at Davenport Creek, about 40 km from the mission. There were reliable wells there to support livestock and the population of the mission took refuge there during a period of drought in 1906 and again in the early 1920’s.

297    The Koonibba Children’s Home was built in 1914. Historical records show that Aboriginal people housed there went to Davenport Creek for holidays, where “plenty of fish are to be had”, and children’s camps were held in the sandhills over Christmas. Photographs taken in the area in the 1920’s depict Aboriginal children playing in the water, women and children fishing with handlines from the beach, people gathering cockles, using boats and casting nets from boats into the water.

298    The United Aborigines Mission established a short lived mission at Ooldea opening in 1933 and closing in 1952.

Maralinga and the Yalata community

299    Yalata Lutheran Mission was established in 1954 and is now an Aboriginal community on the Eyre Highway about 270 km west of the State Border and 26 km north of the coast. The Court heard that Aboriginal people who lived there came from the north and northwest, following British atomic weapons testing on the Maralinga lands. Many Aboriginal people were moved there following the closure of the Ooldea Mission in the early 1950’s. The Yalata community is now independent, occupying an area pursuant to a lease.

Early anthropologistsEarly anthropologists

300    Later in these reasons the accounts and opinions of early anthropologists will be drawn upon to the extent that they support findings of fact and inform my understanding of the expert evidence. They are mentioned here by way of introduction so that the sources of evidence referred to later in these reasons can be understood in the context of their place and time. After this brief introduction they will be referred to elsewhere by their surnames.

Bates

301    Daisy May Bates (1863 – 1951) lived at Eucla between 1912 and 1914 and then for a time in the Fowlers Bay area. She moved to the vicinity of Ooldea in 1919 and remained there until 1935. Her later camp was established at Ooldea Soak to the north. She distributed rations and supported Aboriginal people who resided with her.

302    Bates lived among and had extensive contact with Aboriginal people over a prolonged period. She kept voluminous records concerning their language, mythology, totems, food and water sources, beliefs and customs. In her book titled The Native Tribes of Western Australia she listed totemic groups of the “Jinyala (Eucla) Nation”, accepted among all of the expert anthropologists to relate to the traditional laws and customs of the Mirning people in the Eucla region. The eastern-most group recorded in that particular body of work was the Nala-um (edible root totem), whose country extended to the Merdayerra Sandpatch.

303    Bates believed that the country to the north east of that point was that of the “Yulbari” people who she considered to be distinct from the Wirangu. It will later be necessary to resolve a debate about the implications of the word Yulbari, as well as debates about what Bates had to say about the Nullarbor Plain.

304    Bates’ work must be understood in the context of the time of its commencement, some 40 years after effective sovereignty. It must also be considered in light of her known academic approaches and academic purposes. It is common ground she was concerned to record particulars of what she considered to be a dying race. When speaking of and categorising Aboriginal people she included only those who she considered were “full blooded” discounting or ignoring all people with mixed ethnicity.

305    Bates was central to the discussion among experts in this proceeding, including because she was a first-hand witness of facts, keeping records during her extended and close contact with Aboriginal people that would not otherwise have existed at all. However, her records are disorganised, fragmented and open to a considerable amount of interpretation. Unsurprisingly, her writing is not expressed in the language that modern day anthropologists or lawyers might use in the adversarial context of a trial concerning native title. However, she did study the association between people and places, the organisation of people into societal groups, and the interrelation between those groups and others. To Bates, these were essentially factual concerns. The controversy in this proceeding is the extent to which reliable inferences might be drawn from her work in answering the Preliminary Questions against the definition of native title in the NT Act.

Howitt

306    AW Howitt published The Native Tribes of South East Australia in 1904. He described the work as relating to the “Yerkla-mining” (resembling Eucla Mirning). Like some others, Howitt’s works were based on information provided by distant informants. Roe is among his informants. Howitt referred to Mirning people as occupying country 100 miles to the east of Eucla and 40 miles to the west. He expressed the view that the Nullarbor was not used and a further account of Mirning people fearing a mythological snake there. He recorded that the food of Aboriginal people was principally wallaby and kangaroo, with goanna, dog, native cat and “all kinds of fish … except shark”.

Elkin

307    AP Elkin published papers on Aboriginal kinship systems and social organisation in 1931, 1939 and 1940. His focus was on Kokatha people living to the north and north west of Ooldea. In his later writing he classified Kokatha, Wirangu and “Wanbiri” (Mirning) as one group.

Ronald and Catherine Berndt

308    Ronald and Catherine Berndt (together the Berndts) conducted field work at Ooldea over six months in 1941. They associated the Wirangu People with Ooldea, and otherwise described it as a meeting place for many groups. Ronald Berndt published works on Aboriginal mythology, including narratives from the area around Fowlers Bay, as well as opinions about the movement and influence of Aboriginal people from the Western Desert into Ooldea and associated forced movement of other Aboriginal groups further south.

Tindale and Birdsell

309    Tindale travelled with Joseph Birdsell, a physical anthropologist from the United States of America in what was known as the Harvard-Adelaide Universities Expedition. They shared an interest in the classification of different peoples and in documenting the diminution of Aboriginal Australians in the context of theories about colonisation. Birdsell would physically measure people, photograph them and interview them about their backgrounds. Tindale at or around the same time would talk to them about their ancestry and record the details on data cards. Tindale and Birdsell undertook work among people who identified as Mirning in a 1939 field trip. Tindale later published works in 1940 and 1974 which referenced Mirning, Wirangu and Kokatha people. His 1974 work Aboriginal Tribes of Australia was referred to by all parties as a resource for identifying the association of language groups with landed areas associated with the Sea Claim Area.

310    Like the work of Bates, Tindale’s writings include first-hand accounts of a factual nature. For example, his interview notes include an account given by Mickey Free Lawrie briefly describing his mother Tjabilja as a full blood Mirning woman. In that regard, the records are helpful in drawing out some information about the apical ancestors and the areas with which they may have had associations. However, the experts in this proceeding were at odds to some extent about the correctness of Tindale’s views or the appropriate interpretation of his writings.

Reverand G Taplin

311    Reverand G Taplin published articles in 1879, relying on correspondents for his data, including Gardiner from Streaky Bay. He prepared reports about customary practice and some observations about different practises of coastal people compared with those situated further inland:

Taplin (1879) published a few years before Curr. He too relied on correspondents for his data but was evidently quite selective as to the material he included in his published work. In a section with the title ‘The tribes of the Western District (Port Lincoln to Fowler’s Bay)’ he provided reports of mortuary practices, including a reference to wailing (ibid., 94). He reported that initiatory rituals were marked by great secrecy and involved cicatrisation and circumcision (ibid., 99). He noted that the coastal groups did not evulse teeth but inland ones did (ibid., 100). Gardiner, who was one of Taplin’s correspondents, recorded for the Streaky Bay area on cicatrisation and female circumcision (Gardiner 1892, 30) as well as the desire for revenge in the case of death (ibid., 32). He gave an account of ‘medicine men’ or native doctors (ibid., 34).

(footnote omitted)

EM Curr

312    The relevant writings of EM Curr are largely based on his correspondence with Williams in 1886 and 1887. Williams reported to him information about groups in the region of the Great Australian Bight, the waters they connected with and the ways in which they identified themselves and others. Williams reported to Curr that people belonged to totem groups, with children belonging to the tribes of their fathers.

RH Mathews

313    RH Mathews was a surveyor who developed an interest in Aboriginal culture during his professional travels. He published journal articles about social formation and systems of categorisation of Aboriginal people across a large area, dividing the tribes of South Australia into “nations” according to (among other things) their initiatory rites.

PART 10: ABORIGINAL WITNESSES

314    In Sampi First Instance, French J (as he then was) described the evidence of Aboriginal witnesses about their laws, customs, rights, and responsibilities with respect to land and waters as of “the highest importance”, all else being “second order evidence” (at [48]). I respectfully agree. The importance of the evidence is especially heightened given that the definition of native title rights and interests is expressed in the present tense. The Court is concerned to identify whether there exist traditional laws and customs under which native title rights and interests in the Sea Claim Area are presently held. The opinion of an expert on the existence and content of those traditional laws and customs can be of no assistance if it is dissociated from the evidence in fact given by living Aboriginal people on that topic.

315    With some exceptions, it has not been convenient or desirable to organise these reasons in a way that segments the lay evidence into discrete topics and disputed issues. I have preferred instead to give a summary of the evidence of each witness in turn, and to then draw from those summaries as needed.

316    Having said that, there are three topics that lend themselves to a summary that encapsulates the overall effect of the testimony of the witnesses, considered as a whole. Those topics are the extent of common ancestry among the witnesses, the present day fishing practices of the witnesses on or near the Sea Claim Area, and matters affecting the governance and decision making of the FWC Aboriginal Corporation. The effect of the lay evidence on the latter two topics will be incorporated into these reasons as disputed factual topics arise for consideration and resolution. They are not included in the summaries under the witness name headings.

317    Annexure C to the applicant’s closing submissions contains extracts from the affidavit and oral evidence relied upon relating to the topic of “Use / Connection”. I have read that material and have had regard to the collective effect of it, whether or not each extracted portion finds expression in the summaries that follow.

318    Schedule Three to these reasons contains a table identifying two ancestors from whom all but one of the members of the Claim Group who gave evidence are descended.

319    The table shows that nearly all of the Aboriginal witnesses are descendants of Tjabilja through one of the children born to one of Mickey Free Lawrie’s two successive wives. However, the same Claim Group members are also descended from people described in the evidence as Wirangu and Kokatha people.

320    For example, in addition to his descendancy from Tjabilja, Bunna Lawrie is a fourth generation descendant of the ancestor known as “Wirangu mother of Jimmy and Arthur Richards” and a fourth generation descendant of “Wirangu mother of Jimmy Scott”. Collectively, the witnesses (with some exceptions) are descended from Tjabilja, Yabi Dinah, Bingi, Eliza Ellen (Ware), Yari Miller and Lena Ware, Maggie (Mother of Jimmy Scott), Ada Beagle, Maggie Inyalonga, Wirangu mother of Jimmy and Arthur Richards and others. The exception is Michael Laing (descended from the mother of Gordon Charles Naley), who has no known common ancestry with any other witness. There are 25 apicals named in the Claim Group description having no descendants who gave evidence.

321    It is plain that intermarriage between Aboriginal people having ancestors from different language groups is prevalent in the present day across the general region.

322    No witness suggested that marriage relationships in the present day were regulated, influenced or prohibited by any Aboriginal laws or customs and none of the witnesses disclosed knowledge of laws or customs regulating marriage relationships that may have existed in the past (at least not in a way that shed light on the rights and interests arising out of a marriage relationship in and of itself). The extent of intermarriage and the significance of intermarriage in determining questions related to native title will be discussed in Part 19 below.

323    Against that background I will now broadly summarise the evidence of each witness, beginning first with those called by the applicant before turning to witnesses called by the Bunna Lawrie Respondents, and then Michael Laing and Robert Lawrie.

April Lawrie

324    April Lawrie was born in Kimba (an inland town) which she knew as gamba, gambadu, (meaning fire). In her first affidavit she said that she identified as a Mirning woman but also acknowledged her Kokatha heritage. She described her descendancy on her mother’s side to her paternal grandfather Albert James (Bulla) Lawrie (born at Eucla in 1911) who identified as Mirning. She described other grandparents on the Kokatha side of her family having a family homeland near Laura Bay. She said her grandmother told her she was “Kokatha too”. April Lawrie said the word Eucla (Yirgarla) had a traditional meaning, being the morning star Venus. She explained that she traced her Mirning identity through descent “which is our law and custom, and my rights to country including the sea claim country is through descent”. She identified Nullarbor as her country, and Eucla and White Well as her “home places” and places where her spirit was strong.

325    Like many witnesses, April Lawrie referred to the ocean as wanna. She said (at [7]):

We refer to ourselves as wannabirri mob, we are the Far West Coast people, wanna is the ocean and this is how I grew up. Everyone from the West Coast uses this name. We are sea people, we are from the wanna. This is shared language among the coastal groups. The predominant coastal groups are the Mirning and the Wirangu, with Kokatha also sharing the coast in accordance with the seasons and with cultural gatherings. I know that many of the Kokatha, Mirning and Wirangu people have shared genealogies and could identify with one or more of these groups. It doesn’t matter how an individual identify themselves, be it Kokatha, Mirning or Wirangu, if the person has an apical ancestor from the coastal groups then they have native title rights and interests in the sea.

326    April Lawrie asserted that pre-sovereignty Kokatha, Mirning and Wirangu people occupied the FWC Land Determination Area and that in summer time Kokatha people would come down to the coast. She said there was shared ceremony and intermarriage along the coast at places such as Denial Bay, Fowlers Bay and Streaky Bay.

327    She described feeling for cockles with her feet in the sand as she had seen older family members do. She named places where people fished and ate seafood. She said that their whole existence was by the sea, and that every opportunity to be by it was important. She described swimming and learning about water safety in places including Smoky Bay. She said that her grandfather constantly shared Mirning stories and told her that “Mirning people are famous as great diver people, we are the Yaou:um people” (meaning osprey or sea eagle). She referred to her grandfather teaching about the albatross being the caretaker of people in the sea, adding that he used to say that only white fellas got taken by sharks, “making all the noise and splashing around in the water”. She described some family members who were reputedly strong swimmers.

328    She said she was told that her white great-great-grandfather (a sea merchant) had married Tjabilja because he valued her knowledge and experience of sea country.

329    She said (at [18]):

I was told that our sea country goes as far out to sea as you can see, to the horizon. Our people used to click their fingers and point out to sea. The click means a long way and in this case a long way in the direction of the horizon. Growing up, you stand on the beach, and you’re swimming, you’re fishing , and you’re talking, about who you are and where you live. The sea is in your being, I was taught this by everyone, and you are immersed in it from childhood. We got this behaviour from our parents and grandparents, Aunties and Uncles.

330    In her oral evidence, April Lawrie confirmed that the reference to “our sea country” in her affidavit was a reference to the country of Mirning people.

331    April Lawrie asserted that she was told by her elders that Mirning country started from Clare Bay, all the way through Fowlers Bay and across to Point Culver in the west. She said that Wirangu country went east from Clare Bay, but that she had rights all over the Sea Claim Area through her Mirning and Kokatha heritage.

332    April Lawrie described the use of floating logs to keep people afloat at sea, for fishing and gathering shellfish. She said she remembered her grandfather talking about people walking to islands which she assumed included St Peter Island and Eyre Island. She said she had been told about Mirning people accessing points along the cliffs along the Great Australian Bight where they would climb down and launch themselves from rocks or platforms, making rafts from the scrub (in more recent times boogie boards), making ropes for rafts and climbing down cliffs. She claimed that European people had not seen those things because not many European people went west of the Head of the Bight.

333    April Lawrie said she had been told by her mother and other elders that Mirning people had always weaved creepers which were used to descend cliffs to access seafood. She asserted that she was taken to “traditional walk downs” west of Head of the Bight when she was younger and that she had been taught about the access points. She referred to sea caves along the coastline that could be seen from the cliffs and said that “Far West Coast people” went into the caves in summer to keep cool and dived from there for food.

334    April Lawrie described going out to St Peter Island and Eyre Island by boat as a child and walking out to islands close to Streaky Bay (no longer in the Sea Claim Area). Like other witnesses, she said she had been told about people accessing St Peter Island and Eyre Island where they collected eggs. She explained that an oral tradition had been passed down to her about the islands being very significant.

335    April Lawrie told the story of the wombat and the seal. She said there was a significant site associated with the story but did not want to reveal where it was. She stated that the story ran along the whole coast wherever there were wombats and seals and that “the stories come together at the low watermark”.

336    April Lawrie gave evidence that whales were part of her family, Guddamahr being the term for the southern right whale. She said the word Nambada meant hookey (hanging around) and described the whales at the Head of the Bight. She said that Moona:mah were “little hat food” that lived on the heads of whales and were a food source. She continued:

42.    Jidara is the special and sacred white whale. It was Jidara and the seven sisters that form our creation story for the bunda cliffs, and the sea. Jidara came from the sea and created the bunda cliffs, the sea caves and caverns, which he pushed up with his right shoulder. Jidara with the seven sisters gave rise to the Mirning people. The whale is the totem species of the Mirning people. Balgada for the seal, Tjulia for the penguin. These are also totems for the Mirning people.

43.    The whale gives us a connection to the sea , because Jidara was of the ocean. His interaction with the 7 sisters gave rise to the Mirning people. The whale created the landscape, and from the ocean Jidara breathes life into the land and the Mirning people, and gave us our identity, our sustenance, and our existence.

337    April Lawrie asserted that many women, including her and her mother, have a birthmark that looks like a whale, as do her sons. She also mentioned the birthmarks in her oral evidence and said they were “inherited from our creator, guddamahr – jidhera. You know? We have that mark because that tells us who we’re from”. She described the whale as her totem and said that in her recollections as a child her birthmark helped her understand her relationship to her totem, her identity as a coastal person and her ancestral connection to Guddamahr and Jeedara. She said the markings “link us to Jidara and the ocean and the seven sisters”. She added:

45.    There was a clash between Jidara and the seven sisters. The story is that Jidara, he was meant to be on his way to ceremony, he should have gone and he didn’t straight away. The seven sisters saw him and chased him along the ocean there, along the Great Australian Bight, along the bunda cliffs in a westerly direction. They spotted him at Clare Bay. There is a vantage point at Clare Bay where you see that Jidara is trying to enter the land and he is running away from the seven sisters and a small island there represents the seven sisters. I have never seen this small island exposed and I believe it always has water around it. From the bluff you can see the rock formation that is associated with the Whale Dreaming which goes into the sea.

46.    The seven sisters kept chased Jidara and they hit him. At Mexican Hat, that is where the eldest sister hit him and formed a bump on his head. That Mexican Hat is the bump on his head. He went on and the sisters had a resting place not far from head of the bight.

47.    They stood on the edge of the head of the bight, and you can actually see the seven spots where they stood. We call this place the Seven Sisters water gullies - near Twin Rocks (1 kilometre west) and Djulanda. At times of heavy rain the water gullies flow into the ocean like a waterfall. Near this place there are rocky outcrops where people can swim out and stand at low tide on the reefs. Seals also bask in the sun on the reefs an in the past they were hunted by my ancestors. We don’t touch the seals now because they have almost been hunted to extinction by the Europeans.

48.    In his last act of defiance, Jidara sprayed them and left his mark on the seven sisters. That’s where we get our body markings from. That birth mark is from, and is Guddamahr - it looks like him. We inherit the mark that was the result of the defiance of Jidara with the seven sisters. The bubbles in the ocean is also from the spray from Jidara.

338    April Lawrie said that she learned that story from her mother, aunties and others. She explained that she had learned from her paternal grandfather that “we are from the whales” and that linked them to the sea and the coast because that was where they were from. She described her family members walking from White Well to the Head of the Bight to see the whales each week.

339    She said that outside of the Court proceedings she had not heard of any reference to Mirning people descending from Jeedara’s “jalyi”.

340    April Lawrie referred to a story about the formation of Twin Rocks in that area that she could not tell because it was a male story. She said there was a place that looked like a stingray named Sting Ray Plains and referred to a story about the old man Sting Ray resting there.

341    In a later affidavit, April Lawrie asserted that she had been taught by a number of named elders that it was important to speak up for and protect sites in the Sea Claim Area. She said for example that if developments were to be proposed for Mexican Hat, Clare Bay, Fowlers Bay, Head of the Bight, Bunda Cliffs or St Peter Island she would have an obligation to speak up for their protection to maintain those important sites. She continued (at [3]):

Men in my family like Clem Lawrie and Anton Mundy know sacred stories for Tjukurpa that involve sites along the coast such as Twin Rocks and Wilson’s Bluff. I do not know those stories because they are men’s stories but I have been taught to respect those men who are the holders of the knowledge of those sites. Those men need to protect those sites on behalf of all the [Claim Group]. Me and my family would speak up with them for future generations.

342    April Lawrie said that members of her family were on the Board of Management for the Nullarbor National Park, Wilderness Protection Area and Regional Reserve. She said that they were working to protect sites within the FWC Land Determination Area and wanted to extend that protection into the Sea Claim Area.

343    At Clare Bay, April Lawrie gave evidence about the land formations resembling a whale embedded into a cliff and a small island formation representing the seventh sister attempting to pull the whale from the land. She said it was a place where the Seven Sisters had a conflict with Jeedara. She explained that the story travelled along the coast of South Australia. She said that Jeedara had come from the east and when pulled free he travelled west. She claimed she had been told about the site when she was in her twenties with a group of family members.

344    April Lawrie told the Court that she spent time with her paternal grandfather and said that her connection and relationship with the whale started from a very young age.

345    At Fowlers Bay, April Lawrie gave evidence about how the island known as Mexican Hat formed a part of the Jeedara story. She said that the conical shape of the island represented the lump on Jeedara’s head after being clubbed by the oldest of the Seven Sisters. She stated that the word for a southern right whale was guddamahr and the shellfish that looked like a Mexican or Chinaman’s Hat was called munama, or “head food”. She repeated that the word “hookey” or nambada was used to describe a group of whales hanging around or lingering at Head of the Bight. She asserted she was told the story by Dorcas Miller who described it as a Mirning story, and said she now passed it down to children in her family.

346    April Lawrie described big mobs camping in the area, swimming and fishing, gathering periwinkles and other shellfish. She said that people went there to escape the heat and that when people were swimming somebody would keep watch for sharks. She said that when swimming she did not go out far because of rough conditions and reefs. She described the swimming conditions at more sheltered places such as Smoky Bay and Ceduna.

347    At Gilgerabbi, April Lawrie said that at Head of the Bight (yilgamba) there were seven water gullies in the cliffs formed during the pursuit of Jeedara by the Seven Sisters. She explained that Jeedara entered the land creating underground caverns and blowholes along the Nullarbor. She said that when camping in the Gilgerabbi region people would draw water from an underground tank. She gave evidence that in the beach area around Twin Rocks her family members would climb down the steep sand dunes holding creepers that ran through the dune system. She said that Clem Lawrie and her cousin Terry used a “traditional climb down” to descend the cliffs at Head of the Bight into an alcove where they would swim. She claimed that there were climb downs all along the Nullarbor as well as waterholes and rockholes. She said that when travelling her family members would tend to the rockholes because it encouraged animals back there to drink the water and because it was “your family’s waterhole” and you needed to look after your totems too.

348    She said her grandfather taught her about totems, which she described as follows:

Totem is a creature that’s part of who we are that identifies who we are, you know, and where we’re from. So, you know, we’ve got dingo totem, we’ve got particular plants, you know, the little – Nullarbor little wild – some people call it a wild grape but it’s a little berry, little dark berry. That’s part of our totem too, because we’ve got edible vegetables, you know, or vegetation, as well as creatures.

349    At Merdayerra Sandpatch, April Lawrie gave evidence that she and her family members went there to protect the area, including where old people would camp, cook and eat. She said that her paternal grandfather had shown children hammer tools with left-thumb imprints in them and that left-handedness ran through the family. She asserted that the Eucla area and the Merdayerra Sandpatch ended at the western end of the Bunda Cliffs. She claimed she always felt comfortable in the area because of the family’s generations that had been born there. She said “[t]his is where my bloodline runs through”.

350    She expressed awareness about the story of balgada and wadu (the wombat and seal) but did not know the place it related to. She asserted that she had heard both men and women tell it and said it had been written in school books. She said there was a story about seals and it was important to protect them from extinction so that the story did not disappear.

351    In cross-examination, April Lawrie confirmed that there was not one person who could speak for the whole of the FWC Land Determination Area, and that it was necessary to find the right people for the area concerned. She explained that in the region where the Nullarbor met the sea, it was the Mirning people, and that she believed that in the region between Streaky Bay to Ceduna it was the Wirangu people. She agreed that in the west, people spoke “with their Mirning identity”.

352    It was put to April Lawrie that over that part of the FWC Land Determination Area where the waves met the shore, there were no other “right people” to speak for the country, other than the Mirning and the Wirangu. She responded that there were people that identified as Mirning who might have Kokatha and Wirangu background by reason of intermarriage. However, she acknowledged that in the western coastal areas people spoke with their “Mirning identity” and in the eastern areas they spoke with their “Wirangu identity”. She added that her Kokatha grandmother had been born at Decres Bay and said that because of that ancestry she believed that she and her family should be able to have a say about the shoreline there “because they are frequent users of the coastline for all sorts of reasons”. She said that under Mirning laws and customs, being born on the Nullarbor also gave rise to rights there.

353    When asked again whether the area east of Clare Bay was Wirangu country, April Lawrie said “yes and no”. She explained:

Because we all - like, growing up we all know that our Kokatha families used the coastline, got the resources. I believe through what I know, through my family stories and particularly from my grandmother, that as a Kokatha person that her people, her family were allowed to use the coastline, were allowed to use the coastline to go and fish.

354    April Lawrie confirmed that her grandmother was born in the sand dunes around Decres Bay in 1911 or 1912. She could not identify any Kokatha person born near the coast in the 1800’s. However, she said that her Kokatha grandmother was a midwife who helped with the birth of Kokatha and Wirangu babies in an area near Ceduna.

355    When asked whether there were people with “Ted Roberts’ family identity” who could speak for the coast she said that she did not know.

356    She said that Oak Valley people had a relationship with a particular men’s story concerning the coast that she could not speak about, other than to say that it went to Twin Rocks. She did not believe they had a story that went to Clare Bay.

357    April Lawrie said that the rights of Yalata people depended not so much on their residence at Yalata but who they were related to.

358    She confirmed that the FWC Land Determination was the result of the merging of six native title claims, one of which was brought by Yalata people.

359    April Lawrie confirmed that a number of words in her affidavit were associated with the Kokatha language, including Tjukurpa and marlu. She agreed that the Mirning word for Dreaming was Dhoogoor. She confirmed Clem Lawrie and Anton Mundy knew Tjukurpa western desert stories because they had learned them through initiation.

360    April Lawrie agreed that in the mid 1990’s a conflict arose among Aboriginal people about tourist activities at Head of the Bight, and that a trust known as the Yirrkala Mirning Trust had represented Mirning interests in seeking an injunction. She agreed that she had sworn an affidavit in which she had referred to places of significance to the Mirning people. She agreed that the Jeedara story she had told in that affidavit was one in which the whale transformed into a snake when it re-entered the land from the sea.

361    She said she had seen others call to the whales, including Bunna Lawrie and Clem Lawrie. She agreed that her earlier affidavit had said that “[t]he Mirning people are the traditional owners of this land and they are connected to it in both a physical and spiritual sense” and confirmed that was as true today as it was then.

362    April Lawrie said that although Jeedara comes from further east, he was at Clare Bay because “that’s where our people pick up the caretaking of that story”. She said that was the point where “our chapter … where our country starts”. She agreed that Dreaming stories did not always determine the extent of someone’s country and that it would be necessary to look at a combination of factors to determine who speaks for country including bloodline.

363    April Lawrie explained her understanding of Mickey Free Lawrie to be partially but not entirely explained by the extent of his travels. The questioning on that topic went as follows:

MR AMBROSE:    If that reveals that Mickey Free travelled further east than what was traditionally Mirning country, you would have to agree that Mirning country ends where the historical anthropological material places it.

APRIL LAWRIE:    I’d say that would have a lot of limitations. If he travelled further than say for example Clare Bay, which he did, now that travelling didn’t mean that that was necessarily - he might have been looking for food and water. That doesn’t necessarily mean that that’s his country. It might have gotten permission to traverse across someone else’s country.

364    April Lawrie agreed that Kokatha people who were in the eastern part of the coastline could be there because of intermarriage, an example being her grandfather marrying a Kokatha woman. She said that your wife’s family members would not be denied if they came toward the coast, adding that intermarrying enabled interfamilial fluidity in the area:

MR AMBROSE:    But if those Kokatha people had never married into those Wirangu families, then those Kokatha people would have had no rights along the coastline in the eastern part of this claim area?

APRIL LAWRIE:    I don’t know about that. I don’t know about that.

MR AMBROSE:    I appreciate I’m asking questions about things which happened in the 19th century and so there might be a limit to your knowledge.

APRIL LAWRIE:    Yeah, I don’t know about that; I just know about those that have married in and their relationship that they have with their (murrajis), their in-laws, that they could have use of the coastline.

365    April Lawrie confirmed that photographs annexed to her first affidavit depicted a place at the western-most end of the Bunda Cliffs where there was a climb down at a place near the Gilgerabbi microwave tower. She confirmed she had not personally descended the cliffs in that area but had seen a video of Clem Lawrie doing so. She agreed that there were ropes shown in those photographs. The photographs did not depict the areas or alcoves along the Head of the Bight where she had personally descended.

366    She clarified that when she referred in her affidavit to creating new climb downs she meant that people created paths along existing climb downs where rocks had already fallen. She confirmed that the only people she had personally witnessed descending the cliffs were her cousin Terry, Clem Lawrie and Clem Lawrie’s father but said she had heard stories of others.

367    April Lawrie confirmed that she had not personally seen a raft tied together with the creepers she had referred to in her affidavit but said she had heard of people making floating devices with them. She said the longest creeper of that kind she had seen was about three metres. She confirmed that people did not use the creepers to descend the Bunda Cliffs but did use them to help them descend drops in sand dunes in the beach area near Twin Rocks. She said that the climb downs she had been to were places where you could descend “free style” (without the aid of ropes).

368    April Lawrie said that she had seen the sea at the base of the Bunda Cliffs on days when it was calm and “swimmable” but confirmed that when she spoke in her affidavit of standing in the sea and looking back at the cliffs she was referring to the beaches at Head of the Bight and Merdayerra Sandpatch. She did not accept a proposition that the Bunda Cliffs were not any person’s country merely by virtue of a person occasionally swimming there.

369    April Lawrie confirmed that the region around Eucla and incorporating Merdayerra Sandpatch was Mirning country but said that others could go there for trade and corrobborees with the permission of the Mirning people. The cross-examination continued:

MR AMBROSE:    Because ultimately in traditional times, the Moodyerra Sandpatch and the sea beyond there, to the extent it was accessible was Mirning country, wasn’t it?

APRIL LAWRIE:    That’s what I’ve been raised with.

MR AMBROSE:    Then in traditional times, if we take the eastern part of the claim area, from Streaky Bay, let’s say through to where you say Mirning country ends at Fowlers Bay, that’s true for the Wirangu people at that time as well – it was their traditional country because anyone else who came to that country only went there with the permission of the Wirangu people?

APRIL LAWRIE:    Same principle apply, and that permission was made a lot easier when there were marriages, intermarriages.

370    April Lawrie provided names of people who she said travelled across the Nullarbor but could not say when in relation to sovereignty that had occurred.

371    She said that the current arrangements by which only Mirning people sat on a government advisory committee for the management of the Nullarbor Conservation Park would extend into the sea should there ever be a marine park established. However, she said that Kokatha people would have a say in relation to eastern coastal areas. She acknowledged that she took that view in part because of her own Kokatha lineage and the circumstance that her grandmother had been born at Decres Bay.

Clem Lawrie

372    In his affidavits, Clem Lawrie stated that he identified as a Mirning man by descendancy from his father. His paternal grandfather (Mickey Free Lawrie’s son) was born on the eastern edge of the Nullarbor. Clem Lawrie said (at [7]):

One gets their Mirning identity through descent. You need to be born from a person with a Mirning ancestor with connection to the Nullarbor and associate sea coast and be raised as a Mirning person. You can also be adopted if you are grown up by a Mirning family and have connection to those areas.

373    At Adelaide, Clem Lawrie confirmed that he understood that the traditional way of getting Mirning identity was “through the male line”. He confirmed that his mother was of the Oak Valley or Maralinga people.

374    Clem Lawrie asserted that Mickey Free Lawrie moved all over Mirning country, which stretched from around Fowlers Bay to Point Culver in Western Australia. He said he was told that by his elders. He explained that he spent a lot of time with his father at Head of the Bight, Merdayerra Sandpatch and nearby Wilson’s Bluff. He referred to a flint mine near there, which he described as a sacred men’s place, and said that Mirning people collected flint by chipping into the side of the cliff. He said there was another flint mine further into the ocean that was mined when the water was lower and that was connected with a story about a fight between Mirning men and a dog named Jirawaya.

375    Clem Lawrie referred to Mirning people using the sea for generations and accessing areas off the Bunda Cliffs to get seals and penguins. He described visiting the area with this father:

15.    …  There are many rocks which are part of stone-arrangements that are in the shape of whales, dolphins and other sea creatures. These are along the coast and inland around caves, blow holes and rock holes. My father showed me these places and also showed me how to find water with the stones. The stones would show you where the water is, pointing in the direction of where the next waterhole is. I have shown other Mirning people about this.

16.    Because these stone arrangements are in the shape of whales and dolphins, it shows the Mirning people’s spiritual and physical connection to the sea.

376    Clem Lawrie referred to a belief that Mirning people were known as “great diver people”. He said he has a birthmark in the shape of a whale, which was his totem, and that other family members had similar birthmarks. He said that the Mirning people’s biggest totem was the whale and it was their most significant dreaming story connected to the sea, symbolised by the travels of the whale all over the Nullarbor Plain. He continued:

26.    The blow holes were created by the whale, including the twin blow holes at head of the bight called Munyungara. We have two names I know of for the whale, Jidara and Numbuna. My father taught me that Jidara was chasing the seven sisters along the head of the bight. Something happened to Jidara at Djulanda down at the cove involving the dingo totem men. There is a traditional camping ground called Ilganghuda which is next to the sandhills near Peetina close to Head of Bight. Ilganghuda is associated with the dingo totem men. The connection between the dingo and the whale is strong. They are brothers in law. There is a black dingo and a white dingo involved in that connection. Ildgaramba at Head of the Bight, the story here links the dingo with the whale. Ildga is the dingo, and Garamba, the whale.

27.    The whale made the cliff line along the bunda cliffs, he created the cliffs. For our Mirning area, where Jidara travelled through the ocean is our connection to the ocean and the ocean is a sacred area because of this. Jidara’s home is the Nullarbor plain. When he goes onto the land, he turns into a white serpent, he travels underground from his home in the ocean to his home underground on the Nullarbor plain. He created all of the caves and blow holes which occur on the Nullarbor plain, including also waterways and pathways used by Mirning people. He left behind stone arrangements in various places all over the Nullarbor Plain.

377    Clem Lawrie identified the Twin Rocks as an important site. He related a story about two Mirning men who came from Wonunda in Western Australia and were Mulba (meaning friend or partner). He said that the Twin Rocks represented those men. He said:

28.    …  Murnarn was a tawny frogmouth. The two men who are represented by the twin rocks stole Murnarn from Wonunda. They took him to Head of the Bight. Munarn’s grandfather woke up the next day and said ‘hey my mamalu (grandson) is missing’. He the grandfather was back at Woonunda. Then he left early in the morning and travelled all day and tracked them down, the Mirning Mulba.

29.    There is a place we call Murnarn hill west of head of bight where Munarn’s grandfather stopped and rested and made a fire looking for his grandson. Then the next day he went looking for his grandson and he found him there at Head of the Bight, sitting there on top of a hill overlooking the twin rocks. The grandfather speared the two men there and there is a hole in the twin rocks where the spear went through. You need to be in the exact right spot to see the hole. This is a Mirning story that was taught to me by my father. The Mirning Mulba are the twin rocks.

378    Clem Lawrie asserted that he had been told by desert people that they had stories that came down to the coast. One story related to a serpent Wanampi. He said that in traditional times the desert people travelled along the songlines to the coast and shared ceremony to coastal groups including Mirning at Fowlers Bay, Eucla and other places (at [30]):

I know that the desert people also have stories which come down to the coast. One is to do with the serpent Wanampi. As an initiated man I also know that the desert people have a story for the Eucla area which I am not willing to talk about. I have had many meetings with the desert people including from Tjunjunjara and they have told me that they have stories coming into our coastal areas. In traditional times the desert people would travel along these song lines to the coast and have shared ceremony with the coastal groups including Mirning. These ceremonies happened at Fowler’s Bay and Eucla to name some places.

379    Clem Lawrie gave evidence about the ways that Aboriginal people accessed the sea by way of “climb downs”. In his later affidavit he described travelling to those places and recording video evidence of him descending over the cliffs to the water below.

380    Those videos are in evidence and I have viewed them. The first place depicted in the videos is the Gardulba climb down on the Bunda Cliffs, a place shown to him by his father. He claimed that his father had told him that “it was on my land, Mirning land”. He said that the word Gardul is the Mirning word for hole and that Gardulba meant “place of a hole”, which may refer to a rockhole, a cave, a blowhole or anything representing a hole in the ground or in the side of a cliff.

381    Clem Lawrie asserted that it was clear from the way that his father talked about the area that his grandfather and old Mirning people had used the place to climb down to get to the ocean. He said that Gardulba could be accessed from the tracks running along the top of the cliff line which he believed to be traditional pathways of old Mirning people. From there, he said, you could walk about 100 m across low sand dunes and scrub to get to the top of the climb down. A photograph annexed to Clem Lawrie’s affidavit shows him at that place. He claimed that it took about 15 minutes to climb to the bottom and there was a large cave at the base of the climb down.

382    Clem Lawrie agreed that on the day the video at Gardulba was taken, the waves at the base were very rough and at those times one could not go diving there. In his affidavit he gave evidence that there was a large mark in the shape of a whale on a rock at the entrance to the cave which was of special significance to him because it was a symbol of the Mirning whale culture. He said that other Mirning people including his family members also knew that it was there. He explained that the whale mark taught Mirning people about their connection to the ocean and that he had seen other whale shapes in other places along the Nullarbor Plain. A photograph annexed to his affidavit shows Clem Lawrie pointing to the whale mark.

383    Clem Lawrie said that the cave was usually dry but seawater entered at times. He stated that it was protected from the sea other than in rough conditions. In evidence are photographs of Clem Lawrie inside the cave. He said (at [8]):

…  The back of the cave has a sandy floor, and the roof of the cave is many times my height, perhaps 10 metres. It is cool inside the cave, cooler than outside. It is a very spiritual and peaceful place to me.

384    He also described a visit to Merdayerra Sandpatch and annexed a photograph of him standing at a traditional campground there. He said he had been there many times since his father first showed it to him. He described a reef at Merdayerra Sandpatch where he dived with a snorkel and mask to catch fish.

385    Clem Lawrie gave oral evidence at Gilgerabbi, Merdayerra Sandpatch and Adelaide.

386    At Gilgerabbi, Clem Lawrie told the Court about a climb down to a sheltered cove named Djoolanda near Head of the Bight. He said there were sand and rocks at the base of the climb down where shellfish could be accessed.

387    Clem Lawrie referred to fishing in deeper water around Twin Rocks where abalone could be caught. He could not tell the Court how far the tide receded at Twin Rocks but added that along the base of the cliffs the water was always deep, whether or not the tide was low or high. He said that he presently dives for seafoods in deeper waters because the supply can be diminished by overuse in the more shallow places.

388    He confirmed that his brother was attending the hearing wearing a red headband. He said that men who wore the red headband were “senior Mirning men” and “represented the law for this country”.

389    Various people including Michael Coleman, Gavin Peel and Alan Haseldine attended the hearing at Gilgerabbi with red headbands. Clem Lawrie confirmed that the men in the red headbands had been initiated under the same law as him. He said that his father had been initiated under Adnyamathanha Wirangu law. Clem Lawrie was also asked whether the red headbands signified initiation under Western Desert law but the question was withdrawn following an objection. As Counsel was reframing the question a person present at the hearing approached Clem Lawrie and whispered something in his ear. Clem Lawrie later confirmed the man had said something about traditional law.

390    Clem Lawrie acknowledged that he was wearing a wristband made from red string. He accepted that his older relation Neville Miller was not wearing a red headband and he was not senior in the sense that the other men were. He said that Bunna Lawrie was in a similar position.

391    Clem Lawrie referred to Gardulba, which he confirmed was 40 km west of Head of the Bight. He explained that people used the climb down to access sea resources. He said it was best to access that area when there was a north wind. He acknowledged that he had not accessed the water at the place where the Court was sitting as there was no way down.

392    Clem Lawrie mentioned a few stories but did not elaborate on them. He referred to a place east of Head of the Bight which had a story associated with the “moon law” but did not give any details because it was a women’s story. He referred to a further story connected with a southern right whale with two blowholes on its head. He said other people had more knowledge about the site and he did not know the full story. He asserted that he knew a story about two men from the west and the tawny frogmouth bird which related to Twin Rocks. He did not want to elaborate on the story even though it was in his affidavit. He said there were more senior men present and he was restricted from elaborating on certain things.

393    Clem Lawrie said that there were traditional pathways traversing the land across and north of the Nullarbor, describing them as “songlines or the trade routes or your traditional trackway”. He said that along the pathways there were rocks with lichen that signified water. He said he was told by his father that the tracks went into the far north and were old trade routes.

394    Clem Lawrie told the Court that he had been the chairperson of the Nullarbor Parks Advisory Committee for four years. He said that the Committee had been involved in protecting important Mirning sites, including the Koonalda Cave, from damage and destruction. He gave evidence that Mirning people were responsible for co-managing an area representing about half of the FWC Land Determination Area. He said that he and other Mirning people had participated in work that resulted in the declaration of a Wilderness Protection Area in that region. When asked whether the co-management arrangement could extend seaward he said:

Absolutely. From what we currently manage as part of the land determination, that could be extended out. It’s basically reflecting the Spear Creek Agreement.

395    Clem Lawrie said that it had been a positive thing that all groups, including Mirning people, had come together and added that the FWC Land Determination had benefited all of them. He said that the place where the Court was sitting was and still is “true Mirning country” but further north was Kokatha and Maralinga country, and around Streaky Bay was Wirangu country. He agreed that although they had all come together there were still particular areas for particular groups.

396    Clem Lawrie stated that Mirning country went as far east as Fowlers Bay. He explained that the creation of the Yalata lease occurred as a result of the British nuclear tests and agreed that the lease was “put over Mirning country”. He said that the people of the far west coast were related through common ancestors and by intermarriage, but if a non-related Aboriginal person wanted to come onto country they would ask for permission and the right people to ask permission concerning the Nullarbor were Mirning people.

397    Clem Lawrie described a form of differential sharing of knowledge, as follows:

As I said, everyone’s got something - not one person knows it all. We all got a part of a thing and that’s why we - you know, we have that transfer of knowledge so that - I know things that I can bring to the table and show my people and whatever’s relevant, and there are others that know things that I do not know.

398    He described cleaning out debris from rockholes in the area, adding that over the decades he had cleaned out hundreds of them. He said that the rockholes were not so much in sand dunes but in rocky platforms, inland on the Nullarbor plain. At Merdayerra Sandpatch, he described participating in beach cleanups there for conservation purposes which he considered were part of his duty as an Aboriginal person. He referred to a special place that he would like to show the Court and speak about but refrained from saying more in case he compromised his position or said the wrong things.

399    Clem Lawrie showed the Court a fragment of sharpened flint from a mine further west at Wilson’s Bluff. He said that for cultural reasons he could not describe its uses. He described another rock that could be sharpened and used for scaling fish or making spears or boomerangs. He said that Mirning people accessed all of the resources in the area.

400    He said:

Under the Far West Coast Aboriginal Corporation different groups had responsibilities under that to speak for areas within the wider Far West Coast Aboriginal Corporation plain.

401    At Adelaide, Clem Lawrie described the Spear Creek Agreement as a condition that the Mirning people set when agreeing to the amalgamated native title claim that culminated in the FWC Land Determination. He confirmed that the Spear Creek Agreement followed an earlier agreement reached in Ceduna, which contained the words “traditional owners”. Those words were removed from the Spear Creek Agreement. He said that he and his family members were not happy about that, but stated that the words “appropriate people” meant the same thing. He told the Court that the agreements were necessary to ensure Mirning people had “a clear position of management of their traditional lands”. He described the agreement as encompassing “the majority of our lands”, approaching about half of the FWC Land Determination Area. He confirmed the location of the Nullarbor National Park, the Nullarbor Regional Reserve and the Marine Park (being the parks subject to the Spear Creek Agreement) on a map which showed the boundary of an earlier Mirning native title claim. He described the marine park as being in the sea “adjacent to the Mirning country”. The maps support Clem Lawrie’s assertion that the land-based parks encompass about half of what is now the FWC Land Determination Area, being the western portion.

402    Clem Lawrie was asked about the earlier claim extending into sea for a distance of 12 nautical miles, a distance he acknowledged went further than anyone could swim. He agreed to a proposition that it was Mirning country even though it could not be physically accessed:

MR BILLINGTON:    And the reason it was still Mirning country was because you knew it was part of Mirning country because your ancestors had told you.

CLEM LAWRIE:    Yeah.

MR BILLINGTON:    And there are stories and sites out to sea that you know about. Don’t worry - - -

CLEM LAWRIE:    Depends on how far out you’re talking about.

MR BILLINGTON:    Yes. So for the area claimed beyond swimming distance, I’m suggesting that the connection that Mirning people have to that area is not a physical one but is a spiritual one.

CLEM LAWRIE:    Yes

403    Clem Lawrie said that Yalata people had control of the area around Head of the Bight because of an Aboriginal Lands Trust. He confirmed that he opposed the establishment of a tourist facility there in 1995 and that he and others established an organisation which commenced legal proceedings for an injunction to stop it. He confirmed that in an affidavit sworn in support of that application he had referred to the areas around Head of the Bight and Twin Rocks as significant in Mirning culture. He said that Head of the Bight was an area where several Mirning Dreamings converged. In that affidavit he referred to two blowholes in the region of Twin Rocks which were significant Dreamings, referring to a sea serpent. He said that two men came up through the two blowholes, and that was where the law began for the Nullarbor region. He asserted that the story was related to both a whale and a serpent, describing them as the same thing. He said the whale went out to sea beyond Mirning country but he could only speak for Mirning country because beyond that was not within his knowledge. He later said that he believed that Mirning country extended along the continental shelf tens of thousands of years ago. He explained that there were places further out to sea that were of significance to Mirning people but he was not asked further questions about them.

404    Clem Lawrie said that the landscape and sites needed to be protected “because that’s where the story is”. He said that Mirning law required him to do that.

405    When asked about his descendants, Clem Lawrie said that he was a Mirning man by virtue of his descendants from his father, his grandfather and great-grandfather, all of whom were Mirning men. He was taken to that part of his affidavit in which he said “[y]ou need to be born from a person with a Mirning ancestor with connection to the Nullarbor and associated sea coast”. He said that in order to have a connection you needed to have certain knowledge about the land and the waters. He added that you could have bloodline, but if you wanted to speak for your country, you had to “have some knowledge and some understanding and some authority about it”. He said that people were taught values and understanding of language based on their association to an area. When asked whether he understood that to be something different than being raised as a Kokatha person or being raised as a Wirangu person he said “absolutely, yes”. In re-examination, Clem Lawrie said that Wirangu and Kokatha people occupy different lands, spoke different languages and their cultural practices were different. He added that there had been many years of association between the groups surrounding Mirning people’s land. He described the Mirning as having neighbouring groups, which included groups in Western Australian, the Ngaanyatjarra clans, the Maralinga lands, the Kokatha and the Wirangu. He said that all of those neighbouring groups would come together for ceremony.

406    Clem Lawrie confirmed that his grandmother was from the Aṉangu Pitjantjatjara Yankunytjatjara Lands (APY Lands) and that he had been initiated in that area by Yankunytjatjara men. He told the Court that when he wore a red wristband while giving evidence on country he was not signalling that he was of lesser seniority than those who wore headbands. He agreed that the men he had identified when giving evidence at Gilgerabbi had worn red headbands on that day and on the day that he gave evidence at Merdayerra Sandpatch, but not on earlier days in the proceeding. He confirmed that they had come close when he gave his evidence and claimed they had done so because there were more sensitive areas further to the west, which he knew about.

407    Clem Lawrie explained that people from the north came further south and Mirning people went north for “ceremonial gatherings for all the neighbouring groups”. He agreed that when senior men came from elsewhere to follow their stories they were coming into Mirning country. He said they had rights to speak for the country if there were issues that might impact them. His understanding, based on discussions with elders from tjuntjunjara over many years, was that they acknowledged it was Mirning country but wanted to protect and continue to care for their own stories. He referred to people from Yalata and Oak Valley sitting on the Board of the FWC Aboriginal Corporation and added that in Western Australia there were Spinifex people on a board for similar reasons.

408    Clem Lawrie said that Yirrkala (Venus) in the night sky was above Eucla and was used by Mirning people to direct them back to Eucla. He agreed that the Eucla area began at the eastern end of the Bunda Cliffs in South Australia and ran into Western Australia, incorporating Merdayerra Sandpatch.

409    Clem Lawrie referred to an early Aboriginal tenure system and said he was aware that people lived in family groups. He said that Tjabilja’s family was a mob from the Eucla district. He said when growing up he had been told that Mickey Free Lawrie had “founded” Koonibba Mission. He agreed that Mickey Free Lawrie had travelled east and said he believed that Mickey Free Lawrie’s travels indicated where Mirning country was, but added that Mickey Free Lawrie had “ended up at Koonibba Mission and Koonibba’s not Mirning country”. He asserted that Twin Rocks was Mirning country because Mirning people had a story there. He said that other groups may have stories there, but it is not their country. He referred to this passage in the Spear Creek Agreement:

The Mirning people acknowledge that in parts of those areas, the Maralinga Tjarutja, Yalata, Wirangu and Kokatha people continue to have responsibilities under their Tjukurpa and need to access those areas in accordance with their traditional law and custom. In carrying out the traditional responsibility of those lands, the Mirning people place no restraint on and any need for access required by those groups identified.

410    The passage, he said, reflected Mirning people giving permission to the other Aboriginal groups mentioned in it to protect and practice their Tjukurpa on Mirning country. He said that it was part of Aboriginal tradition, and that the document highlighted in modern times what traditionally had been done. He agreed that that tradition applied to Twin Rocks as it was Mirning country.

411    Clem Lawrie gave the names for climb down points where people could access the water for fishing and shellfish collection, including one about 30 kms west of the Head of the Bight. He said that he dived up to around 30 m from the base of the cliff in that area, depending on the weather.

412    He was asked about the climb down at Sponge Cove. He agreed that whilst it was very steep he was able to climb down from the northeastern corner by walking most of the way and sliding down on his bottom, using both arms to steady himself. He said he could also climb down from the southern tip by gripping the side of the rock with his hands. He added that the seas were rough and he had to be careful not to get washed off by the waves at the bottom of that climb. He said that he had done the climb down many times but had not been able to climb around in order to get to Sponge Cove itself because the waves had been too rough.

413    Clem Lawrie explained that the climb down at Gardulba could be done without ropes, by walking for some of the way and sliding down the rest of the way with his hands behind him for stability. He added that the climb down was created by rock falls, and that the rocks are friable and could break as he stepped on them. He said you could not fish there other than with a rod to cast out into the waves. He later asserted that he had descended that climb down “probably three to four times”. He said that one of the reasons why he used that climb down was spiritual and related to a cave there. He added that the main reason was to access seafood. He agreed that he could only access seafood there with a modern spear gun, flippers and snorkel. He said he had only been diving there once when the water was at least 10 m to 15 m deep.

414    He agreed that he had not climbed down at the other places he had described in his affidavit.

415    Clem Lawrie gave further evidence about his understanding of the Jeedara story involving a whale that transformed into a snake and vice versa. When asked whether the story started with “a Whale or does it start as a Snake”, he said he did not know. He explained that the story started at the “Whale Tail”, and from there Jeedara manifested into the land and became a serpent, changing as he moved between the land and the water. Jeedara then continued to travel west, creating the Bunda Cliffs as he went and then went inland from there. When asked to explain the connection between the dingo and the whale, he said that the Mirning word for Head of the Bight was Ildgaramba. Ildga meant dingo or dog, and the dingo and the whale joined together in that place in ceremony somewhere on the Nullarbor Plain. When asked whether there was a name for the snake, Clem Lawrie said that the Mirning word for snake was Junas “so that would be the name for it”. He agreed it could also have the name of other Mirning words for snake.

416    Clem Lawrie confirmed that his understanding that Mirning country went out to sea and came from the continental shelf was sourced from scientific papers concerning rising sea levels. He was reminded of an affidavit he had sworn at an earlier time in which he said that his elders had never told him that Mirning country went as far south as 30 degrees latitude. He said that remains true. He confirmed that his elders had told him that his country was the land that ran roughly from Fowlers Bay into Western Australian and then just the immediate coastline that ran along that area. On further questioning he agreed that by “coastline” he meant the water that could be swum in.

417    Clem Lawrie said that there were men’s sites all over the Nullarbor, including some that ran in along the rocks that jutted out from the base of the cliffs. When asked about men’s sites to the west, he confirmed that they were in the Intertidal Zone. He said that there were also sites in the water, and agreed that they were “above the Lowest Astronomical Tide”.

Peter Miller

418    Peter Miller has lived in Ceduna most of his life. In his affidavit he said he identified as a Wirangu man on both his father and mother’s side. He grew up at Duck Pond at a place that became known as the Yarilena Community.

419    He said as a Wirangu man he lived pretty much his whole life along the coast.

420    Peter Miller claimed he had been told by his father and uncles that Wirangu country started at Elliston and finished at Fowlers Bay. He added (at [10]):

…  We could walk along the reef which is about half a kilometre out to sea at Duck Ponds and they would point out to sea and tell me that it was all my country there.

421    He said he had heard that before white people came, Wirangu people could get out to St Peter Island on low tide by walking all the way out from Kennard Point then swimming to a sandbank and walking the rest of the way. He also said he had been fishing in boats around St Peter Island.

422    Peter Miller said that in the waters near Ceduna he had personally swum up to 100 m beyond the lowest watermark to spear fish and to collect scallops which need water to cover them.

423    At Point Brown, Peter Miller said that there was a fish trap about 500 m south west from which fish could be caught when the tide went out. He said he believed it was man made because of the way the rocks had been formed into a series of catchments. He said that he and his grandsons went spearfishing there.

424    He said that he had come to Point Brown for more than 50 years because it was sheltered and suitable for swimming and gathering shellfish. He said that the reef to the west at Point Brown was fully exposed at low tide so that you could walk on it. He said when the fish were caught they were cooked on the spot on country. If there was more than enough to eat it was shared with family members. He said that the swimming occurred in the calmer areas and not around the reef where the waters were rougher.

425    Peter Miller told the Court that in the area of the fish trap he had seen a spiritual being in the form of a man come out of the waves and give permission for him and the applicant’s lawyers to be there. He said that the man was “satisfied that I was, as a Wirangu man, bringing everyone together”. He referred to the being as “old bugarli” (in Wirangu, “old man”). When asked whether the old man spoke to him in Wirangu because the location was Wirangu sea Peter Miller said he spoke on behalf of the “Far West Coast”. He referred in his oral evidence to “our Far West Coast country”.

426    At Duck Pond, Peter Miller said that his grandfather Yari Miller had moved there from Ceduna in 1942, that he had found fresh water in the sandhills and built a well there. He did not know where Yari Miller was born. He explained that the community there was named Yarilena after his grandfather and grandmother (Lena Miller). He said he believed Wirangu tribal people lived in the area drawing fresh water from the below ground. He referred to mallee trees in the area that grew where the fresh water was. He said he knew where Wirangu people lived because he had been told that by elders. He described his family using a cave in the area to stay cool in summer.

427    In cross-examination, Peter Miller denied that the well in the area had been established by Mickey Free Lawrie and further denied that Mickey Free Lawrie had planted a fig tree nearby.

428    At Davenport Creek, Peter Miller said it was a very important place for Aboriginal people who came from Koonibba. He said his mother was one of the children who was removed from her family at Ooldea and brought to the children’s home. He said that people from Koonibba came to Davenport Creek by horse and dray in the summer months, a journey of a couple of days. He referred to sites in the area where Aboriginal and white people camped. He described fishing from the beach and teaching children to swim there. He said that he swam and dived for fish around a nearby “island” that was always submerged. He said that when he went to Davenport Creek as a child the men would dig for fresh water across the creek and at other places, and he described his mother cooking quandongs from trees in the area.

429    Peter Miller confirmed that he was born in Port Lincoln and agreed that being born there did not give him rights there. He said that you inherited country from your parents. As to who could come to Davenport Creek, Peter Miller gave this evidence:

MR AMBROSE:    …  Just in terms of the Aboriginal people who can come here, to your mind it’s the Mirning people?

PETER MILLER:    No. It’s Far West Coast, everybody can come here.

MR AMBROSE:    Everyone can come here. That also means that Pitjantjatjara people can come here?

PETER MILLER:    Everybody can come here.

MR AMBROSE:    Any Aboriginal people?

PETER MILLER:    Any Aboriginal people, person, that want to come to Davenport Creek, they can come here.

MR AMBROSE:    They don’t need to ask permission to come here?

PETER MILLER:    They don’t need to ask permission to come here.

Neville Miller

430    Neville Miller said that he grew up all over the far west coast, but never more than 20 minutes from the coastline. He said that growing up “knowing the sea was part of our traditional country, as far as the eye can see, and that our family used the sea to survive”.

431    In his affidavits, Neville Miller said he was a descendant of a Kokatha woman named Maggie whose country was around Ooldea and that he identified as Kokatha through his father’s side. He said that on his mother’s side he was a descendant of a Mirning man Jimmy Scott whose country was around Eucla and the Nullarbor. He said he also had Wirangu identity through his grandmother Mertyl Ware.

432    He said that in his family the Wirangu bloodline passes through the women and the Mirning bloodline passes through the men. He said that as a Wirangu man he inherited his country from his ancestors, in his case through Jimmy Scott. He confirmed that the custom of sharing seafoods with family members extended to other food resources and that its purpose was to care for elders and younger people.

433    Neville Miller acknowledged that although to him it did not matter whether you called yourself Kokatha, Mirning or Wirangu it mattered a lot to the ancestors who were quite clear about what tribe they were.

434    In his later affidavit, Neville Miller shared his knowledge of a Dreaming story about a wombat (in Wirangu, wudoo) and a seal (in Wirangu, balkara) which he said was associated with Point Fowler, on the south western side of Fowlers Bay. He said he had been told the story by his aunty Gladys (the sister of Doreen Scott) and it was associated with the Wirangu side of his family. He told the story as follows (at [3]):

Originally, Wudoo and Balkara both lived and hunted in the sea and on the land together. This led to disagreement between them. They got angry with each other but eventually agreed to go their separate ways and to live in separate areas. The wombat Wudoo, agreed to stay on the land in their holes and not go in the water. Balkara the seal placed a digging stick and coolamon on the land for Wudoo, who agreed not to hunt or live in the water. Wudoo put a spell on Balkara to give him flippers so that the seal could live and hunt in the water and not on the land.

435    In his oral evidence at Clare Bay, Neville Miller confirmed he lived about 30 km north at the Scotdesco community, which took its name from the descendants of Jimmy Scott. About 50 people live there from about 15 families. He confirmed that his maternal grandparents were Jimmy Scott (a Mirning man born in Eucla) and Myrtle Scott (nee Ware) (a Wirangu woman born at White Well).

436    He said he had lived and worked in the area his whole life, other than during the times he worked for the railways. He confirmed he had been married to Wanda Miller for 56 years.

437    Neville Miller told the Court about being taught by older people to dig for water in the area. When asked whether Clare Bay was for Mirning people, Neville Miller said “[i]t’s for Wirangu and Mirning people and Kokatha and any other Aboriginal group because we all one mob”. He said other Aboriginal groups could go there without asking permission. He asserted that he had no knowledge of an important Mirning site nearby and did not know any Dreamtime stories for Clare Bay.

438    At Fowlers Bay, Neville Miller said he had lived there years ago. He claimed there was a women’s story relating to the area that his wife Wanda should tell.

439    At Ceduna, Neville Miller said that he was good friends with Willis Lawrie (Bunna Lawrie’s older brother), that he had known him since the age of 14 and that they fished and hunted together. He stated that he had never heard Willis Lawrie talk about whales or whale law, nor had he seen him sing or dance in a traditional Aboriginal way. He said he worked for 20 years on the railways and would see Willis Lawrie during holidays, totalling about 10 visits in that period.

440    Neville Miller confirmed that he was an authorised applicant in what was then the Wirangu (No 2) Native Title Claim. He agreed that it was called a Wirangu claim because it was for the traditional lands of the Wirangu people. He also agreed that the area covered by the WA Mirning Determination was the traditional lands of the Mirning people in Western Australia. He said that if a woman from another place married a man from the far west coast she would have rights in the country because of the marriage, but he could not say whether that was a Mirning or a Wirangu rule.

441    Neville Miller acknowledged that he had included the story about the seal and wombat in his affidavit, and that it was not until later that he was told by Gavin Peel that it was a women’s story. He agreed that the wombat in the Dreaming went beyond Wirangu and Mirning lands and out into Kokatha and Barngarla lands and that the seal went as far as Kangaroo Island and anywhere a seal could go.

442    Neville Miller acknowledged he had sworn an earlier affidavit in which he said that Mirning country did not extend as far as Murphy’s Haystacks. He said that area was Wirangu country and he had always been told that Wirangu country went as far as Merdayerra Sandpatch. The cross-examination continued:

MR BILLINGTON:    Yes. And you heard Mr Clem Lawrie give his evidence that Mirning country goes from the west as far east as Fowlers Bay?

NEVILLE MILLER:    I heard that.

MR BILLINGTON:    Yes. So you disagree with that. You say it’s Wirangu as far as Woodiyara. [sic, Merdayerra]

NEVILLE MILLER:    Yes, I don’t agree with that. It is Wirangu and Mirning country. And Kokatha.

443    Neville Miller said that in his teenage years he sourced food off the land by hunting and finding bush tucker such as wild peaches, yams and sap (darl). He said that when working for the railways he would hunt on the land inward of the Bunda Cliffs but never thought about attempting to climb down them. He said that neither of his parents swam or dived.

444    Neville Miller said that people from Yalata, some of whom were Kokatha and Pitjantjatjara, came into the area after the nuclear weapon testing at Maralinga. He agreed that since those people had come down it had become their country as well. He stated that people from Oak Valley had come down to trade adding “it’s a shared country”. When asked whether the sea was the country of the Ted Roberts group he said he could not answer the question. When asked whether the sea was really the country of any Aboriginal people who came, he said “yes”. He went on to say that there were Mirning and Wirangu people who had connections with places like Adelaide, Perth and Kalgoorlie because they had family there. When asked whether he could speak for places where others lived, he gave varying answers, culminating in “[y]es, I supposed I’d say so”. In re-examination he said he “wouldn’t go and speak for them over there … unless I was invited to”.

445    Under cross-examination by the Commonwealth, Neville Miller was asked to explain his evidence about identity passing by bloodline:

MS WEBB:        Yes. And you told the court that Wirangu bloodline comes through the women. Is that right?

NEVILLE MILLER:    Yes, I - - -

MS WEBB:        Yes.

NEVILLE MILLER:    Yes. From – to me, through my mother, yes.

MS WEBB:        Yes. To you from the women.

NEVILLE MILLER:    Yes.

MS WEBB:        So your children:  they won’t get Wirangu bloodline through you, will they?

NEVILLE MILLER:    Could you say it again?

MS WEBB:        I said if Wirangu bloodline comes through the women, your children won’t get Wirangu – be Wirangu bloodline through you, will they?

NEVILLE MILLER:    They should.

MS WEBB:        If it goes through the women, how do they get their bloodline through you?

NEVILLE MILLER:    I can’t answer that.

…

MS WEBB:        Your mother’s father was Jimmy Scott?

NEVILLE MILLER:    Yes.

MS WEBB:        Yes. And he was a Mirning man?

NEVILLE MILLER:    Yes.

MS WEBB:        Yes. And you say the Mirning bloodline comes through the men. You told the court that.

NEVILLE MILLER:    I don’t recall that.

MS WEBB:        You don’t recall saying Mirning bloodline comes through the men?

NEVILLE MILLER:    No.

MS WEBB:        No. So how do you become a Mirning person?

NEVILLE MILLER:    I can’t answer that either.

446    Neville Miller confirmed that his paternal grandmother was Maggie, a Kokatha lady. When asked how a person gets to be Kokatha he said that he did not know.

Wanda Miller

447    Wanda Miller was born at Coorabie, west of Fowlers Bay. She claimed she was a native title holder under the FWC Land Determination both because she was a descendant of an apical ancestor and because she was born in the FWC Land Determination Area and had gained knowledge of the land and waters in accordance with traditional laws and customs by reason of her marriage to a Wirangu man (Neville Miller) and her connections with his side of the family.

448    Wanda Miller said that she was brought up the “traditional way” and went to school at Koonibba Mission. She described her mother picking her up after school and going back out to the bush hunting for survival. She said when she was about 14 years old she went to high school in Adelaide at Concordia College and would return home during the school holidays.

449    At Clare Bay, Wanda Miller said that she presently lives at Scotdesco. She said during high school breaks she used to go to Bookabie and from there to Clare Bay to enjoy the seaside and swim. She asserted that she had visited Clare Bay many times in her adult life before and after marrying Neville Miller. She claimed she had been brought to the area as a child by her cousin and her cousin’s husband, but they did not tell her whose country it was. She said “I just assumed it was any Aboriginal people country. I didn’t hear a particular group”.

450    At Fowlers Bay, Wanda Miller said it was a good place to go to the beach with “our people”, being people from Ooldea. She said that her people were traditional people who lived in the bush around Coorabie and Korangabie, about 28 km away. She explained that her people were lured to the area in the early days by ration stations.

451    Wanda Miller said that she was told a story about the area by her husband’s aunty Gladys Miller, a Wirangu elder who spoke both Kokatha and Wirangu languages fluently. She claimed she was told that the story had been handed down by ancestors. She said that balgada (the seal) and wadu (the wombat) were brothers who lived together. She continued:

… and they both lived together, but one day they had an argument, a serious argument, that they didn’t – wasn’t so close any more. They started to separate and then they talked to each other and both agreed that wardu would go back on the land and live and seal would stay in the sea. Balgada gave a dish, a coolamon and a digging stick. So he could dig his hole on land and wardu gave balgada his flippers.

452    She explained that balgada was given flippers so that he could stay in the sea, and also so that he could keep in touch with his brother by meeting on the land, both checking up on each other from time to time. She said that the story related to an area to the south where there were cliffs and wombat holes. She said it was a place where the seals sunbathed. She said that children were taken there and told the story. She confirmed that it was a women’s story and did not wish to disclose why that was so.

453    Wanda Miller said that Aboriginal people were initially moved to Yalata “because of the atom bomb at Ooldea”, then later relocated to a mission in the bush nearly 100 km from Fowlers Bay.

454    When asked whether aunty Gladys Miller had taught her anything else about her culture at Fowlers Bay, Wanda Miller said “[n]ot really”. She said that stories about sites were not told automatically, and that the elders teach them when they think you have earned their trust. She said that was true of herself but also agreed that was a traditional rule for both Wirangu and Mirning people.

455    Wanda Miller described Aboriginal people moving around the area and intermixing with each other. She said that it was alright for people from outside the area to hunt and fish across the Nullarbor. She added that everybody had a right to the sea, that it should be available, and “[y]ou can’t lock people off from the sea”.

456    When asked why the Court was talking at Fowlers Bay, she again described her childhood, from her birth at Coorabie, her time at the children’s home at Koonibba and the trips then taken to Denial Bay and Davenport Creek. She said that the people who went to those places were the people who lived at Koonibba at the time. She said she did not turn her mind at the time to which groups were at Koonibba, and that everyone was there because it was a government mission.

457    Wanda Miller told the Court that when she was at Koonibba, her parents were out bush, and that she had never seen walls before she went there. She said that her mother would come in the school holidays and take her out bush again and that she lived in two cultures until she was about 13 years old. She said her parents at that time did not take her to Fowlers Bay but stayed in the bush.

458    Wanda Miller said that her aunties knew only a handful of Mirning words. She said that she did not have any contact with Mirning language. The cross-examination continued:

WANDA MILLER:    Well, they’ve always mixed because you know, for gatherings, Aboriginal people’s gatherings. Natural gathering before white people were here, they gathered to trade, they gathered to corroboree, they gathered to get promised wives and maybe swap resources that came from somewhere else for something else, and so that’s how mixture of the different groups always happened. But it just accelerated when the white people came here.

MR AMBROSE:    You mentioned that the mixing of groups, one of the way groups interacted was through corroboree, in traditional times if there was a corroboree here on the beach, whose land was that corroboree being held on?

WANDA MILLER:    You know, what I just said to you, I wouldn’t like to identify one group and that’s me, myself, I’m speaking for Wanda Miller and so that’s what my opinion is.

MR AMBROSE:    I appreciate that’s your opinion, I’ll ask a slightly different question, has anyone ever told you if there would’ve been a corroboree held here traditionally, whose country this was?

WANDA MILLER:    Not a corroboree, but Aunty Gladys did tell me when she talked about that story on the Point Fowler, that it was Wirangu story and this is, you know, Wirangu people are here

459    In relation to the groups referred to in the rule book of the FWC Aboriginal Corporation, Wanda Miller confirmed that the Roberts family are Western Desert or Pitjantjatjara people and that Oak Valley is a township within the Maralinga lands about 250 km from the coast and 100 km outside of the FWC Land Determination Area. She resisted answering some questions about “Western Desert” culture, adding that she did not like the term. She acknowledged that “back then” Kokatha people most probably practiced Western Desert culture. She added that the people who had been dislocated from the Maralinga lands to Yalata community were mostly Kokatha.

460    Wanda Miller said that there was a Kokatha kinship system that determined where you fit in. She later added that she was connected with the majority of initiated men through the system. She said that a non-Aboriginal person could be a Kokatha person, depending on where they came from, who they mixed with and how they settled in. She added that the culture was inclusive. When asked about Wirangu people, Wanda Miller initially referred to them having a kinship system where you belonged whether or not you practised traditional law, but then said “[w]ell, culturally, I shouldn’t be really talking about other people”, later confirming her reluctance was based on not knowing who had been through men’s law.

461    Wanda Miller said that she knew there was a Mirning area in the west of South Australia but did not know of any boundaries. When pressed about what she meant in her affidavit when she referred to “the Mirning area”, she said she did not want to talk about the boundaries of the area because it was not for her to decide. She later acknowledged that she was referring to a coastal area in the west of South Australia. She confirmed there was no other person’s area between the Mirning area and the sea. When asked again about how far east that went, she said that there were no people on the Nullarbor except for a few Aboriginal people who worked on stations there. She said that she did not believe areas further east of Merdayerra Sandpatch were Mirning but emphasised that she did not wish to speak for other groups because “[t]hat’s for them to talk about and decide”.

462    Wanda Miller confirmed that her Wirangu relatives had told her they learned Kokatha language from people who had moved down from Wudinna to live at Koonibba, but they had learned Wirangu from their elders. She said that when she lived in the bush as a child (including during school breaks from Koonibba) she never went west to the area of the Nullarbor Plain, and she was not aware of Aboriginal people moving westward of White Well. She said that traditionally her people moved around a lot, including over the Nullarbor. She asserted that she had ancestors who were already in Eucla and that is how they came to find work with Captain Simon there.

463    Wanda Miller described meeting fairer skinned Aboriginal people near Fowlers Bay for the first time, remarking that at first she thought they were white people.

464    She said she had learned to swim at high school in Adelaide.

Simon Prideaux

465    Simon Prideaux was born in Adelaide. He moved to Ceduna when he was about 30 years old. In his affidavit, he described himself as a “Kokatha and Mirning person”, an identity he got through his mother who told him he was Kokatha and Mirning (as did other relatives). He stated that his maternal grandmother (Pearl Coleman) was born at Koonibba. He asserted that his native title rights and interests came from her and her ancestors as his maternal grandfather was a white man. He gave evidence that Pearl Coleman always said that her country was “all the way along the coast from Western Australia to Elliston”. He said that he was told by his elders that his traditional country went past the islands around Ceduna. He claimed he knew that his native title rights went further out to sea than the FWC Land Determination Area because he had been taught that by his elders.

466    Simon Prideaux described his descendancy from Mickey Free Lawrie (whose country he heard went from the other side of the State Border right across into the far west coast of South Australia), as well as from Yabi Dinah, whom he described as a Kokatha woman from Denial Bay.

467    At Point Brown, Simon Prideaux gave evidence that he had first been to that location when he was a child and had gone back many times. In response to questions about which group his family members belonged to, he said “the Far West Coast”.

468    When giving evidence at Denial Bay Simon Prideaux told the Court that he had purchased a house there and used to travel there for holidays. He said he had been told about Yabi Dinah having been there but had not been told where she was born. He asserted that he did not know whether Mickey Free Lawrie had any associations with Denial Bay but claimed that he had been told about Mickey Free Lawrie helping build the Koonibba Mission.

469    At Duck Pond Simon Prideaux explained that that location was a special place “from what my family have taught me throughout the past”.

470    On board the Asherah, Simon Prideaux gave evidence about 500 m from St Peter Island. Like other witnesses, he said that he had been told by his elders that Aboriginal people used to walk across to St Peter Island. He said he had been there by boat to fish and collect wild peaches. He said he had camped on the island with an Aboriginal man about 25 or 30 years ago, spearfishing on the western side, as well as fishing from the beach with a handline. He described fish species that could be caught in the area, including salmon (when the wattle was flowering). He said his older relatives had taught him about the wattle flower. He said when the wattle flowers, you could catch the salmon, clean it up and use bark from the wattle tree to tan the skin. He said when dried the skin was like leather and could be used for tying things together, weaving and tying to the bottom of your feet.

471    At Adelaide, Simon Prideaux stated that he was familiar with the word Tjukurpa. He said “[i]t’s everything, it’s the whole, it’s spiritual, land, water, seas, stories, everything”. He was questioned by the applicant’s Counsel about whether any Tjukurpa related to the Sea Claim Area. The exchange was as follows:

MR DE MARS:    Without going into any details, are you able to tell her Honour whether in relation to the sea claim area in this matter, whether there are any – without going into any details, whether there are any tjukurpa that relate to the sea claim area?

SIMON PRIDEAUX:    Yes.

MR DE MARS:    Again, without going to details, are you able to in some general manner give an indication of the relevant location or locations?

SIMON PRIDEAUX:    So, just along the Nullabor and a few places back further towards Fowlers Bay and Ceduna.

MR DE MARS:    In particular, so far as there are tjukurpa that relate to the sea area in particular

SIMON PRIDEAUX:    Yeah.

MR DE MARS:    If there are matters that you can’t go to, I fully appreciate that. I’m not asking you to do that, but so far as you can describe any particular location or area relevant to the sea and any tjukurpa, are you able to tell the Court that location or locations?

SIMON PRIDEAUX:    Yeah, well, just yeah, it’s like Twin Rocks and the Nullabor.

472    When asked if he could be more specific, he said “I said the Nullabor first and the sea out from”. Simon Prideaux said the Tjukurpa were important to him because it was what he believed in that area and the stories that have been told for generations about what has happened. He did not want to give the names of those who had told him the stories but later said they were of Kokatha, Mirning and Wirangu descent. Simon Prideaux claimed that the stories were known by many Mirning descendants but did not know if they were Mirning stories. He said the story that ran along the cliffs at the Nullarbor explained why the cliffs were created. He confirmed that he learned the story when he went through law.

473    Simon Prideaux agreed that it was a Mirning custom that you inherit country from your ancestors. He differentiated which parts of country were Mirning and which were Kokatha. He said he had always been told that from Western Australia to the other side of the water at Fowlers Bay was Mirning and from Fowlers Bay to past Elliston was Kokatha.

474    In his oral evidence, Simon Prideaux gave an Aboriginal word for a blue simmer crab (guddamahr). When asked what language that was he said “Far West Coast”. He said that sea resources were important to him for cultural reasons but did not want to speak about it in open court.

475    Simon Prideaux told the Court that when he was growing up people described their mob as far west coast, wherever they were from. He explained that the expression referred to the extended family but was not necessarily centred on the area. He said that it included people from Koonibba and Ceduna. When asked whether it included people from Yalata, he said:

SIMON PRIDEAUX:    Not so much. But it does. It wasn’t until the whole native title sort of came in that’s where all the – I suppose the courts are wanting to know the lineage, where are you from, and then you could only choose one and all this sort of stuff. Yeah. The segregation sort of happened, but then everyone’s gotten together after and agreed that we are all one.

MR BILLINGTON:    So when native title came in there was a bit focus on the tribal identities because to get native title you needed to show it’s your tribal lands from before the white fella came?

SIMON PRIDEAUX:    Yeah, without – without overlapping boundaries, yeah.

476    Simon Prideaux agreed that the “entire Far West Coast mob” should be consulted about a development proposal such as the extension of a jetty at Murat Bay or a boat tour operation around Ceduna or running west from Head of the Bight, as well as activities on the sea at and to the east of Streaky Bay.

477    He agreed that he drew no distinction between coastal people and desert people running north, and that they were essentially all the one people. He said that people from desert groups went to the coast as well. He stated that he regarded the Gawler Ranges as part of his traditional country because of the Kokatha side of his family.

478    He asserted that he was entitled to wear a red headband and confirmed that it indicated that you had gone through law and were a wati.

479    He gave further evidence about hunting for land animals in the FWC Land Determination Area.

480    Under cross-examination by the Commonwealth, Simon Prideaux was asked about traditional laws relating to country. The exchange went as follows:

MS WEBB:        So did your grandmother Pearl, or any of those other older people, talk to you about whether there was a traditional rule before white people came when there were white fathers. Did they ever talk to you about how people got their country before that, was there ever a rule?

SIMON PRIDEAUX:    How they got their country?

MS WEBB:        Yes, and their identity?

SIMON PRIDEAUX:    Yeah.

MS WEBB:        Did they tell you what that rule was?

SIMON PRIDEAUX:    So just like here. Not so much being born on-country but they’re being born on-country because they’ve grown up as kinship.

…

SIMON PRIDEAUX:    And descent as well.

481    Simon Prideaux claimed that he was not told about any traditional Mirning or Kokatha rules about whether identity was obtained through a maternal or paternal line. In re-examination, he stated that he was unaware of any difference between how country was inherited as a Kokatha, Mirning or Wirangu. He said that the law that he went through was the same type of law or cultural practice that far west coast people generally went through.

Wayne Haseldine

482    Wayne Haseldine said that in the past Mirning, Kokatha and Wirangu people had intermarried. He said the elders had taught him that his country “goes on both my Mirning and my Kokatha side” and that his country extended along the coast (westward) into Western Australia and (eastward) past Elliston. He added (at [6]):

Before native title came along, we all knew who our family was and how we were all connected. Native title has segregated people a little bit. But we are all Far West Coast Aboriginal people with native title rights and interests in the area of the sea claim. Between us we know who has rights where.

483    Wayne Haseldine said his mother was born at Ceduna and his maternal grandmother was a Kokatha and Mirning lady who was born at Koonibba Mission. He believed his great-grandfather was also born at the mission. His mother in turn was a “full blooded Aboriginal woman named Yabi Dinah”, a “strong Kokatha lady” and a “boss lady for the Kokatha people” whose country, he said, was at and around Ceduna.

484    He described being told by his elders that they had a connection and country in the sea and that the sea and islands around Ceduna were part of their country and their Dreaming. He said that he knew for a fact that his native title rights extended further than the FWC Land Determination Area and he knew that because he had been taught by his elders how to get resources from the sea further out than the lowest tide.

485    Wayne Haseldine said he had been told that before the arrival of Europeans Aboriginal people could access St Peter Island by walking along sand bars at low tide and that they went there to collect razorfish and other seafood, as well as mutton birds and eggs. He said he had heard through his uncles that there were fish traps there. He said that he first went to St Peter Island by boat to collect wild peaches called booraa, and that he had been there many times to camp, cook and fish. He described fishing off beaches on the island with handlines and rods, collecting crabs and floundering with spears in waist deep water at night.

486    During cross-examination at Laura Bay, Wayne Haseldine agreed that in his examination-in-chief he had said that “Kokatha people – people from elsewhere … should come with someone from the area”. He said that if they were not with someone from the area, they “could get sick or something bad may happen”. At around the same time, another person present in the hearing interrupted his evidence, saying more than once “[i]t make you sick”. The Court gave that person guidance about the importance of not interrupting the evidence of the witness.

487    Wayne Haseldine referred to all “clan groups” engaging in fishing in the Laura Bay area, explaining that he meant Mirning, Wirangu and Kokatha people. He said that none of those groups required permission to go to Laura Bay. He added “all of them tribes are looked at nowadays as local people”. He said that if Aboriginal people from outside the area came down, it would be better if they were accompanied by local mob so that they would not be harmed by their lack of knowledge.

488    At Denial Bay, Wayne Haseldine explained he had lived there between the ages of eight through to his twenties. He said families that lived in the area would gather to sit among the mangroves to stay cool.

489    He said he had been told by the Kokatha side of his family that Kokatha country went from Fowlers Bay eastward to Elliston. He identified Fowlers Bay as the place where the country went from Mirning to Kokatha. When asked whether it was a rule for the Kokatha people that their country comes from where they are born, he said “[w]e’ve all got certain areas we’ve got to take care of so the Kokatha tribe is quite big but my family is from around this area”. When asked again about the rule concerning birth on country, he said “[m]aybe in the old days but this day and age, because a lot of children are born in Adelaide, but this is still their country is where their family’s from”. He agreed that the Mirning way of getting country was by inheritance from ancestors.

490    Wayne Haseldine was asked to recall a video he had recorded at Davenport Creek in which he described that place as Kokatha country. When asked which Kokatha ancestor that country had come from, he said that his grandmother and mother had told him it was Yabi Dinah, because she was born on country at Dinah Rockhole. He confirmed that country was on the western side of Rocky Point, beyond Fowlers Bay. He confirmed he was Mirning through his grandfather Mickey Free Lawrie but denied that Mirning country went as far as Ceduna.

491    Wayne Haseldine confirmed that he considered all of the Aboriginal people in the region to be far west coast people, and that was the case in the 1980’s “before Native Title came along”. He confirmed that his reference to Kokatha people getting sick was related to the presence of sacred sites in the area, but he knew of no sacred sites that were beyond the lowest tide.

492    Wayne Haseldine confirmed that the person who interrupted his evidence at Laura Bay had gone through law at Oak Valley, was a senior person who was directing him on cultural matters and was also among the men wearing red headbands who had interrupted proceedings at Gilgerabbi. He said the person was directing him not to say too much about a certain thing, and was trying to look after him and give him guidance. He said the person could do that because he was a “law man” who had been taught more than him about certain spiritual and secret things.

Arthur Catsambalas

493    Arthur Catsambalas said that as far as he was concerned, all Aboriginal people of the far west coast had native title rights and interests in the ocean “if they are descended from an ancestor with traditional connections to the Far West Coast”, which included Kokatha, Mirning and Wirangu people.

494    He said that he grew up along the coast and identified as a Kokatha and a Mirning person, an identity he got through his mother. He described his mother as a Kokatha woman having Mirning heritage. He said that he got his rights in the Sea Claim Area through her. He traced his genealogy to Mickey Free Lawrie and Sarah Rose Button. He described Mickey Free Lawrie as “a Mirning Man from the Eucla area”.

495    He said that as a young child he had been taught how to access resources from the sea by his uncles, specifically Oscar Richards, Penong Miller, Alan Haseldine and Andy Cox. Under cross-examination at Adelaide, he agreed that he inherited country from his ancestors.

496    At Laura Bay, Arthur Catsambalas told the Court that he grew up in Ceduna and described his activities as a professional and recreational fisherman in the area. He said that when he was growing up a lot of Aboriginal people came to Laura Bay in the summer time, but he could not name them.

497    At Kennards Point near Ceduna, Arthur Catsambalas said he went to St Peter Island by boat when it was full moon (because that is when the tides are high) to avoid getting stuck on a sandbank. He described fishing on both the near and far sides of the island. He said he had seen a fish trap near the island which he described as big, round and deep, made from large rocks that became exposed at low tide. He had not used the trap personally. He explained that he had heard stories about fish traps from Oscar Richards. He said it was common sense to use the moving tide to catch fish. He said he did not think white Australian people would have built the trap near the island and added “I reckon Aboriginal people would have built it”.

Alan Haseldine

498    Alan Haseldine said he had been to St Peter Island “too many times to remember”. He said he had heard that before white people came, Aboriginal people used to get to the island off the spit of Point Vivonne.

499    He said he grew up just outside of the Koonibba Mission until aged about 12 when he went to high school in Adelaide and later in Ceduna. He said he identified as Kokatha from the Yabi Dinah family line and as Mirning through the Melba Lawrie line. He confirmed that under Mirning tradition you belonged to the country of your ancestors. He said that the area near Laura Bay was Mirning and Wirangu country. He added that he also thought it was Kokatha country because he had always been able to go down there from the north and it was accepted that he was allowed to come down “so it’s all joined up together as Mirning, Wirangu and Kokatha”. He said Kokatha people could use the sea without seeking permission.

500    In his oral evidence at Adelaide, he agreed that he knew Bunna Lawrie when he was in his twenties and at that time did not hear him talk about whale law, whale Dreaming or anything similar. Alan Haseldine said that he had never known Willis Lawrie to speak Mirning, discuss any form of Mirning law, or perform any sort of Mirning song or dance.

501    Alan Haseldine confirmed that he was one of the people who had worn a red headband at the hearings at Gilgerabbi and Merdayerra Sandpatch. He said it was a coincidence that they were used when Clem Lawrie was giving evidence. He claimed he was given a headband to wear but did not know why, other than to signify who was a wati (initiated man). He stated that he went through law when he was 48 and that the law ran right through from the coast to Hermannsburg. When asked how far north his traditional law goes, he said “everywhere”.

Oscar Richards

502    Oscar Richards described himself as a “Kokatha and Mirning man but was raised Kokatha”. He said that he was born at Koonibba Mission in 1952 and that his mother was a Kokatha and Mirning woman from the Ceduna area, and his father was a Barngarla man.

503    He said that he got his connections to the Sea Claim Area by descendancy through grandparents on his mother’s side, his grandmother being a Mirning woman who had married a Kokatha man. He said that his mother was born at Denial Bay and that her parents were Mickey Free Lawrie and his first wife Sarah Rose Button. On his maternal grandfather’s side, he descended from William Coleman, the son of Yabi Dinah. He said that he was aware that Tindale had recorded Yabi Dinah as a Wirangu woman but he was told that she was Kokatha.

504    Oscar Richards said that his totem was the wedge-tailed eagle (walga), and that the totem had been passed down to him from his mother, aunties and uncles.

505    He said that traditionally Kokatha was “an inland group but they would come to the coast to trade in summer time and have shared ceremony with the coastal tribes like Wirangu and Mirning”. He explained that Kokatha people would go to the coast and talk to the Wirangu and Mirning people and would travel frequently to the Gawler Ranges. He said that there had been a lot of intermarriage between Wirangu, Kokatha and Mirning people and that “we all have rights to the ocean no matter how we identify ourselves”. Oscar Richards said that he grew up in the Ceduna region and accessed coastal waters east and west of there all of his life. He claimed that his country went both ways, both inland and along the coast and waters. He said “[t]he groups lived together and went this way and that way”.

506    Oscar Richards asserted that there was a story about a snake (ganbara) that used to travel from the Western Desert underneath the land connecting the desert to the coast, with the Wirangu and the Mirning people. He said that it created the caves, waterways and blowholes and he thought it ended up at the Head of the Bight. He said he was told that story by his uncle Old Hughie Windlass.

507    Oscar Richards said that he had been taught to fish by older people who were “all Kokatha and Mirning and Wirangu people together mixed up”. He said that he also fished at places along the Bunda Cliffs and described walking along the tops looking for a way down. He said that there was a rock platform close to the Head of the Bight that he and his brothers used which he described as a “stepping down area”. He claimed that he continued to visit that area three or four times a year and that he was teaching his son to hunt and fish safely there. He described swimming practices with children, they were to stay on the landward side of the reef where it was safer.

508    Oscar Richards described visiting St Peter Island in his affidavit but did not explain how he got there. He said there was a “big fish trap” on the island and he believed that Aboriginal people had put rocks down there.

509    When asked whether Point Brown was the country of his Mirning ancestors, he said “Mirning, Wirangu, Kokatha. We all Far West Coast people, Far West Coast people.  ...  We not individual group”. He said that he had conducted research and found out that he had Wirangu ancestors “so I’m there, mixed up. I’m confused who I am”.

510    Oscar Richards said that white people were strangers to the country but Aboriginal people from elsewhere were not. He described familiarity between Aboriginal people from within and outside the region, including because they played football with and against each other. He described Aboriginal people as “Far West Coast people” if they had lived there or married people from the area.

511    At Duck Pond, Oscar Richards told the Court that he would go there from the age of about eight, travelling from Koonibba Mission. He described camping and learning to swim there together with about 30 other families. He said members of the Lutheran Church would bring the children there for swimming and sports. He told the Court that in the 60 years he had been visiting Davenport Beach, the location of the dunes and creek had shifted.

512    Oscar Richards said that when he referred to the “Far Wast Coast mob” he was referring to three language groups, being Kokatha, Wirangu and Mirning. He said he had not used that terminology for his whole life and only started using it when people started pushing for native title. He said that all Aboriginal people could come to Davenport Beach without permission.

513    On the water near Ceduna, Oscar Richards said he had learned from his mother that Aboriginal women had been kept by sealers as sex slaves in a cave on St Peter Island. He said that over thousands of years people had accessed the land there as there was no water in between. He described fishing around there and diving for abalone on its western side. He said that a fish trap referred to by Arthur Catsambalas was made by a white man using a crane to move large rocks from another place “to make believe that black fellas didn’t have any fish trap … on their island”. He said he had never stayed on the island. He added that Aboriginal people did not go far onto the island after it became a conservation park because there were too many snakes.

514    At Adelaide, Oscar Richards said he had known Willis Lawrie all his life and had hunted with him, and that he, Willis Lawrie and Bunna Lawrie had been together at Koonibba. He had never known Willis Lawrie to have spoken in Mirning, or to have any particular knowledge of whale law, or to have sung traditional Aboriginal songs or performed dances.

515    Oscar Richards confirmed that when he referred to Mirning men going through initiation in his affidavit he referred to men taken for initiation by the old men who came from the desert areas including Oak Valley and Maralinga.

516    He said that depending on their ancestry a person could choose to identify as a Mirning, Wirangu or Kokatha person or more than one group.

517    When asked how he knew that Kokatha people came to the coastal areas for trade he responded that he had worked that out himself after seeing abalone shells near Koonibba Mission.

518    Oscar Richards said that the snake story in his affidavit went through Maralinga and Oak Valley. He said that area was “not our land” and it stopped at Head of the Bight. He asserted that he had been told that story by a Kokatha man in the Gawler Ranges area.

519    Oscar Richards explained that he did not want to get initiated but if he did he would have to go to the Flinders Ranges because his father’s side was from there. He said from about the 1960’s or 1970’s initiation was not happening around Ceduna where he lived and that initiations were held in the Western Desert areas.

520    Oscar Richards confirmed his understanding that Mirning country went as far east as Fowlers Bay. He said from Fowlers Bay to the State Border “that’s the Mirning mob from West Australia and some South Australia mob who’s Mirning”, adding “[i]t’s just Mirning people” and that only the right Mirning people could speak for that area. The traditional owners of that country were men from the Mirning group. He named people from the oldest living Mirning generation. He confirmed that if someone wanted to do a boat tour along Head of the Bight to Merdayerra Sandpatch they would need to speak to Mirning people and that along the east of Head of the Bight they would need to speak to “the Far West Coast” people which included Mirning, Wirangu and Kokatha.

521    In re-examination, Oscar Richards said that permission for a boat tour should be sought from the FWC Aboriginal Corporation because it represented each group. He continued:

Yeah because they all represent each group from that area so you get the Wirangu, you get the Mirning, you get the Kokatha mob, so you get a representative who sits in the Far West Coast talking about rights and wrongs and letting the people know what’s going on.

522    In his later affidavit, Oscar Richards said that while he was not an initiated man he knew “from a lifetime living with Far West Coastal people” that Kokatha people always shared ceremony with coastal tribes such as the Wirangu and the Mirning.

523    He said that excluding the evidence provided by Bunna Lawrie, he had never heard about a “special Mirning whale initiation ceremony”, nor had he heard of a “Mirning whale law” or of “any Mirning man who has been initiated under such a law”. He explained that he knew of Mirning men who were initiated in “shared ceremonies with other Far West Coast people whose ancestors are Wirangu and Kokatha”.

524    He added that his grandmother (Melba Lawrie, daughter of Mickey Free Lawrie) and other Mirning family members never told him about there being “restricted Mirning laws and customs” that could not be shared with non-Mirning people.

Gavin Peel

525    In his affidavit Gavin Peel said that he was culturally connected to the sea because he grew up alongside it. In his oral evidence he said the connection was from having grown up in the coastal region going down from Pekina to Haslam. He said that he heard a lot about the sea from his family, looking and listening, and that the sea was like a school, teaching what was right to pick and collect in what season. He continued (at [21]):

I have a spiritual connection on the Wirangu side to Fowler’s Bay. This is about the wombat and the seal and their agreement between each other to live in separate areas. This is about the wombat named Bidju and the seal named Balkara. This is a story or a tjukurpa. They both lived on the land and both lived in the sea. They got angry with each other and had a disagreement with each other. To part their separate ways, the seal left the digging stick and coolamon on the land and gave it to Bidju. The wombat put a spell on Balkara to give him flippers. One said you live and hunt in the water and are not to come upon the land. The other one, the wombat, stayed on the land and was not to hunt or live in the water.

526    Gavin Peel said that he had culturally sensitive information regarding the Kokatha connection to the sea which he could not speak about in an affidavit or open court because of his traditional laws and customs. He added that “[t]here are dreaming stories which give western desert and Kokatha people a spiritual connection to the sea”.

527    At Fowlers Bay, Gavin Peel told the Court he went there for mission-run youth camps as a child when travelling through to Yalata. He said that the other children there were all from Koonibba. He explained that he grew up in the Kokatha group and spoke a bit of Kokatha and he assumed that the others were Kokatha and Kaurna people. He said his Kokatha family came from Ooldea and “on the east of the State”. He said that his paternal grandmother Rosie Coleman was a Wirangu woman from Euria near Scotdesco. He could not say whether she ever went to Fowlers Bay.

528    Gavin Peel asserted that his connection to the sea was by reason of him being a direct descendant of his Wirangu grandmother. He said that he had heard the seal and wombat story from Wanda Miller and claimed the story was widely known but it was not for him to talk about because it was a women’s story. He expressed that he was “a bit afraid” to be asked questions about that part of the story that he had put in his affidavit.

529    When asked what groups other families were from, he said “Far West Coast Group”.

530    Gavin Peel said that the people from the Maralinga lands were southern people, in the sense that they were south of the Western Desert. He resisted “dividing people up”, but agreed his father’s people were south of the APY Lands. He said that he knew how men were initiated at Oak Valley in the APY Lands and at Yalata, and said it was more or less the same in each place. He agreed that the people in those places all believed in Tjukurpa but he did not want to give details of stories. When asked whether Yalata was Mirning or Wirangu country before other people were relocated there, he said he did not know.

531    In his affidavit, Gavin Peel said that he claimed rights to the Sea Claim Area through his grandmother, a Wirangu woman who was born around Euria Rockhole. He said that his father was a Kokatha man who identified with his father’s line. He said that his maternal grandmother belonged to the Kokatha people of Ooldea. He said (at [6]):

I inherit my Kokatha and Wirangu identity through descent from my ancestors, and because my ancestors were connected to the [Sea Claim Area], I have native title rights and interests across the [Sea Claim Area].

532    Under cross-examination, Gavin Peel confirmed that his father had been born in the Gawler Ranges. He said that his paternal grandfather was a Kokatha man who did not have a connection to the far west coast area. He agreed that under Kokatha law, where you are born determines who you are. He said that his mother got her Wirangu identity from Eva Pompey. He agreed that he did not claim any Mirning heritage.

533    Gavin Peel was asked how it was that his Kokatha ancestors were connected to the Sea Claim Area. He responded “my Kokatha ancestors and also my Wirangu ancestors”. He named some Kokatha ancestors and said that on his Kokatha side they would probably be connected to the Head of the Bight. On his Wirangu side he said his ancestors (from Eva Pompey) were connected to an eastern region around Penong to Streaky Bay. He later confirmed that he knew that because he had heard a recording of his grandmother speaking Wirangu, which he said confirmed she was a coastal person.

534    Gavin Peel was taken to a heads of agreement document he signed on behalf of the people at Yalata to resolve a native title dispute with the Wirangu people in 1999. It stated (at [1]):

The Yalata claimant group recognise that the area of the Yalata Lands lease in within the traditional territory of the Wirangu People.

535    He confirmed that he presently believes that to be the case.

536    Gavin Peel was asked about the reference to sensitive information in his affidavit which he asserted involved a Kokatha connection to the sea. He denied that it was a story about a creature creating the Bunda Cliffs. He said the connection “comes from Kokatha country to Wirangu country to Mirning country”. He confirmed that the story stopped just north of the Trans-Australian Railway Line and did not run as far north as the Gawler Ranges or Maralinga. When asked what rights he had as a result of that information he referred back to his affidavit and said he had nothing to add to what was said there.

537    Gavin Peel confirmed that the wearing of a red headband was one of the ways to show that a Kokatha man had gone through law. He acknowledged that the men who attended the hearing at Merdayerra Sandpatch were such men, and said that by wearing a red headband he showed his own identity. He confirmed he was one of the men in a red headband who was present when Clem Lawrie gave his evidence. He said he did not know why the men in red headbands walked away when April Lawrie gave her evidence.

538    Gavin Peel acknowledged that he knew the “Marlu Kanyala Tjurki” story and the “Tjuntjuntjara” story, He said he would decline to tell them if asked, nor would he disclose whether they were associated with initiation or men’s business. When asked for some detail about the animals referred to in the stories, he said he did not know, then confirmed he responded in that way because he did not want to talk about them. He later claimed that he did not understand what tjurki meant.

539    Gavin Peel said that he went back to Oak Valley, Maralinga and the APY Lands frequently, including for men’s business.

540    In re-examination, Gavin Peel explained that his cultural connection to the sea arose because he was born near the coast. He said he was more culturally connected to the sea than his mother and her mother or his father and his father. He said he had learned about his birthplace and cultural connection from others when growing up and that it was common knowledge. He asserted that it was the same for Wirangu people who were born on the coast.

541    Counsel for the applicant pressed Gavin Peel again to provide some detail of the Tjuntjuntjara story. The exchange went as follows:

MS JOWETT:    Now, that Tjuntjuntjara story that you were asked about, I’m just trying to clarify that. Has that got something to do with birds?

GAVIN PEEL:    I really don’t want to go there.

MS JOWETT:    It’s just that I’m trying to clarify this for the Court. Would it have anything to do with the Ninyi?

GAVIN PEEL:    I don’t think it’s right for me to talk about it.

MS JOWETT:    What? I’m just asking you a question. Does it have anything - - -

GAVIN PEEL:    Yes, and I don’t want to speak about it.

MS JOWETT:    Alright. That’s all I wanted to clarify. So am I right in saying - and I won’t ask you any more questions about Ninyi, just one more - does Ninyi mean zebra finch?

GAVIN PEEL:    I don’t know.

542    Gavin Peel confirmed that the story had something to do with “Jidara”.

Barry “Jack” Johncock

543    Jack Johncock is currently a Board Member of the Far West Coast Traditional Lands Association, a body established to represent “the clans of the Far West Coast region”.

544    Among other things, Jack Johncock gave evidence about places that he collectively referred to as the “Yalata Beaches”, including Jerry’s Beach, Coombarra Beach, Yalata Beach and Dog Fence Beach. He marked those places on a map as places that he knew well. He said that he regularly went there with his children, his grandchildren and people from the far west coast community.

545    He told the Court about his use of the Yalata Beaches and nearby places such as Mexican Hat, Cheetima, Tuckamore and Fowlers Bay. He said he often dived on reefs east of the Yalata Beaches around the Coorabie area to spear for crayfish. He said (at [13]):

…  I stand on the rocky outcrops at the reefs at low tide and then dive from there into the deeper water on the seaward side. When diving from the reefs, I would often be 100 metres or more beyond the low tide mark. I will also fish, using rod and line, from the reefs at low tide and from the beaches themselves at high tide. I catch salmon, shark and mulloway from the Yalata beaches. If I am camping, I also set nets.

546    Jack Johncock said that he grew up in Port Lincoln but regularly spent time in the far west coast for work and leisure. He asserted that he believed he had visited every accessible spot between the Head of the Bight and Elliston on those trips. He said he had never accessed the Bunda Cliffs nor the climb downs there but said he had been told by others about Aboriginal people doing so. At Adelaide he gave evidence that Clem Lawrie knew the cliffs like the back of his hand and could climb down them but said he knew of no other Aboriginal person who would climb down them.

547    At Munama, Jack Johncock said it was a special place for him and his family and “Far West people in general”. He said he would visit the area when he was living at Yalata and later at Koonibba. His view was that the Kokatha, Mirning and Wirangu people were “all one”.

548    At Adelaide, Jack Johncock was asked whether he primarily identified as Wirangu. He said “I go by Far West. I’m a Far West resident”. He agreed he had been a lead negotiator as a Wirangu man for the Wirangu (No 2) Native Title Claim. He said the area from Streaky Bay to Port Kenny was “Wirangu completely”. He claimed that some old people had told him that Wirangu country went as far west as Fowlers Bay and that some had said it went further along the Nullarbor Plain. He had not personally gone to the Koonalda Cave on the Nullarbor but when asked whose country it was he said he could not say.

Vernon “Penong” Miller

549    At the time of trial, Penong Miller had passed away. His evidence was received under s 63 of the Evidence Act.

550    In his affidavit, Penong Miller described his Wirangu descendancy through both his mother and father. He said his paternal grandmother was Lena Ware, a traditional woman who grew up on Wirangu country and who taught the children how to hunt and fish.

551    Penong Miller said his mother had been taken away and put into Koonibba Mission and that she later grew up in Saddleworth. He said that the country of his father and grandfather was around the Ceduna coastal areas and inland. He continued (at [4]):

…  We are all mixed on the Far West Coast and most of us can claim back to a Wirangu, Kokatha or Mirning ancestor. To me it doesn’t matter what tribe your ancestor came from, we are all together now as one people for the Far West Coast and we all have rights to access and fish in the waters of the Far West Coast.

552    Penong Miller asserted that he could trace his connections to Wirangu and Kokatha people and that he identified as Wirangu because (at [6]):

… we are the sea people, and my father and grandfather were Wirangu people as well, and I have spent most of my time in the sea. Wirangu people, we have the sea eagle as our totem. My father told us a long time ago. Walja, like a policeman. He looks after the country and the sea and protects it. He protects the land from bad spirits.

553    Penong Miller said that Yarilena on the coast near Ceduna was his homeland and that it took its name from old Yari Miller and his grandmother Lena. He said he was told by his elders that Wirangu country goes from Elliston to the Head of the Bight, right along the coast “because the Wirangu people are coastal people”. He said that he was “told by my old people” that Aboriginal people from Ceduna used to walk along sandbars from Kennards Point and then swim across to St Peter Island. He explained that he had done that himself when he was younger and described harvesting wild peaches there.

Bunna Lawrie

554    Bunna Lawrie’s affidavit evidence was lengthy and detailed.

Ancestry

555    Bunna Lawrie was born in 1950 “on Mirning country” in Koonibba. He described his mother as a strong and strict Mirning woman who was full of wisdom. He said that he took his rights and interests in Mirning country from her. He did not know his natural father but stated that his stepfather was Cyril Coaby.

556    Bunna Lawrie said that his name is a shortening of the “whale law name” Ngoombunna, which he was given later in his life. He said that he had inherited the right to speak for Mirning land and culture from his mother, grandfather and ancestors.

557    The knowledge held by Bunna Lawrie was said to have been sourced from named elders as well as information he had seen in books and historical records. He stated that his knowledge came from “a lifetime of having grown up as a Mirning person to become a Senior Elder, Whale Song man, Holder of the Ceremony Bag and Medicine man (mabarn bai)”. He said that he had duties and responsibilities to pass on his knowledge through ceremony, song, dance and stories.

558    Bunna Lawrie described his grandfather (Mickey Free Lawie) as “the Medicine man, Whale Song and Dance Ceremony man of the Mirning tribe”. Bunna Lawrie had never met Mickey Free Lawrie as he had passed away before he was born. He said that whilst his grandmother (Florence Richards) was born Wirangu, when a woman married into the Mirning tribe, she became the belonging of the Mirning man and became a Mirning person by following traditional laws and customs. He added that women play a big part in Mirning law and culture. He said (at [41]):

… yagarrilya, the Seven Sisters, are involved with the whale creation and gave birth to the Mirning People. In our tradition, Jeedara, the great white dreamtime whale, and the Seven Sisters are ancestors to the Mirning People. That is why it is important that the women also have knowledge.

559    Bunna Lawrie gave biographical details of Mickey Free Lawrie, who was known as Dthutha (meaning chief dingo boonary, boss). He said that Mickey Free Lawrie’s chief totem was the great white whale Jeedara and that he was “chief Songman and Ceremony man for Jeedara”. He said that only Mickey Free Lawrie and his younger brother Kit Mundjina had “that very sacred totem” which came from their mother’s family. He said “[t]he whale is such a sacred totem that this was often not talked about nor shared with non-indigenous people”. He described Mickey Free Lawrie as “a highly ranked and fully initiated Song and Whale Ceremony man”.

560    Annexed to Bunna Lawrie’s primary affidavit was a photograph that he said depicted Mickey Free Lawrie and Kit Mundjina with “the sacred whale tail symbol painted on their chests”.

561    Bunna Lawrie went on to say that his grandfather was a mabarn bai (a clever medicine man) who had a position of great authority in the Mirning tribe. He said:

47.    …  He would also go to the Council of Mirning Elders and organise a nwalgakn, a meeting to talk about the everyday life of the Mirning and to talk about the clans of the Mirning to make sure of the wellbeing of all the clans, as they are all one family. The ngarrgjnuri, whale law is overseen by the mulaji, government, which is the Mirning Council of Elders, particularly when the Elders gather at a nwalgakn, meeting.

48.    In the Yirgarla clan, the Medicine men are the Head men and called mabarn bai, from mabarn, which means magic. The Head man settle disputes, arranges marriages, leads the initiation ceremonies and carries the Mirning law and Ceremony bag, which has the paint and feathers for ritual. The Head man has authority in the Mirning tribe and over all the clans.

562    Detailed evidence was provided by Bunna Lawrie about the movements of Mickey Free Lawrie from Eucla eastward to the Head of the Bight and then to Koonibba. He asserted that Mickey Free Lawrie’s uncle, Mailman Jimmy Mingo (also known as Koolbrie) had custodianship over about 17 waterholes which were passed on to Mickey Free Lawrie’s family following Mailman Jimmy Mingo’s death.

563    Bunna Lawrie said that Mickey Free Lawrie was prominent in the history of the Koonibba Mission. He stated that that area was Mickey Free Lawrie’s country before the missionaries arrived, and that Mickey Free Lawrie had led the scrub cutters and the building of the mission. He said that Mickey Free Lawrie was unable to stop the missionaries from building a church on a sacred place where the Mirning held initiation ceremonies. He described how Mickey Free Lawrie travelled the length of Mirning country checking on sacred places and precious waterholes, including Cooeyanna Well, a place near Streaky Bay. He said that Mickey Free Lawrie was credited in missionary records with the discovery of caves.

564    Bunna Lawrie gave evidence that Mickey Free Lawrie bore the tribal and spiritual markings on the skin of his chest and back that he believed signified him as “the chief Mirning law man”.

565    Bunna Lawrie went on to give biographical details of his grandmother, born Florence Bertha Richards. He said (at [71]):

My grandmother was called Wirangu at Koonibba, though that group seems to be people from many places who were moved around and away from their traditional country. The only Wirangu from the coast seem to all be descended from people who I was always told were Mirning ancestors.

566    Bunna Lawrie gave evidence about Mirning people who had not followed Mirning laws and customs, causing conflict and loss of connection.

Mirning language

567    Bunna Lawrie said that he had spoken Mirning language since the age of three and that his mother and grandmother were fluent Mirning speakers. He said that he spoke, sung and taught in Mirning language. He alleged that the Wirangu language had words which were “stolen” from Mirning people as part of the “Wirangu Language Retrieval Programme”.

568    Bunna Lawrie provided evidence of his belief that Mirning people had been subjected to violence, hatred and abuse by desert people, and of the importance of his culture and identity instilled in him by elders and ancestral beings. He said that he had been looked after by Albert (Bulla) Lawrie and had learned from his advice and stories. He said that as a teenager he lived in a number of places including Kimba, Ceduna, Port Augusta and had learned from Mirning elders and relations. He continued:

96.    I learnt the custom of the Mirning nudi (fishing nets), made out of animal hair and bark from yurloo (paper bark tree). Uncle Bulla told stories and I learnt from my mother where the fishing nets were placed, the stone arrangement and the kobarda (canoe) made from the myall tree for the frame. Long mallee roots were also used for the frame and then the yurloo paper bark tree used to fill in the base and sides. The oar was called watagu and used in boats for going along the cliff sea edge to come to the karsts and entrances to the caves. There were places for trapping djuooli (little penguins) with net traps and also seals. When they go into the entrance, they are trapped inside, where they are speared.

97.    The Mirning have always been yaum (great diving people) and toolmakers from the beginning of time. I am one of a few Mirning toolmakers, and I know how to make the traditional barbed spears, the clubs, flints and nets for fishing and collecting seafood.

569    Bunna Lawrie asserted that Mirning elders had confirmed his role in protecting Mirning culture and country. He said that he had been taught how to sing for the whales and dance the whale dances. He testified that he now taught dances, rituals and ceremonies to younger generations. He said that songs had been given to him spiritually, including at a whale ceremony at Nallanippie in the vicinity of Fowlers Bay. Of the significance of the whale, he said:

101.    Johnny Buuramula, now deceased, was Head Whale Songman for the Wimidi of the Yolngu. The Wimidi also still hold traditional whale law, culture and dances, like the Mirning. He saw that I had a lot of whale totem knowledge and so invited me to be initiated into their whale dreaming also.

102.    Johnny had travelled down to from the Northern Territory in 1996 when we made the film ‘The Whale Dreamers’, which was produced by Julian Lennon. This happened at Miranungu the Head of the Bight, which is Mirning Country and whale law and where our ancestors have danced to the whales, a sacred place.

103.    I know that this was the right way to practice Mirning law and culture; to be initiated not by any neighbouring tribe, instead by a whale tribe. In their language wimiddi ngarrtadja means whale ancestral law. That was a proper way to be a whale man, to be initiated by another whale man, by the head Song and Dance man on high ranking and high level.

104.    They acknowledged me to be on the same high level and high ranking, being the Whale Song and Dance man of the Mirning People. I knew that this was the way that my spiritual ancestors guided me and had chosen me to look after Mirning culture, Mirning Dhooghoor Dreaming whale law and ceremony of the Mirning People.

105.    I have been to over 100 whale ceremonies to celebrate and honour Mirning culture and to teach others about whale ceremony. I will not speak about all these things openly, but would give evidence in restricted session. It is too sacred to allow this knowledge to become spread around.

570    He added (at [107]):

The word for Mirning law is ngarrgjnuri ngarrgjinja, this is the headline of the whale law and the centre of our totems and also the arc of the yerrambai (rainbow), the jeedara warri (whale journey) and the bridge of the arc which holds up Australia and holds back the sea from coming onto land. All along Mirning country we honour and celebrate the journey of the whale and Mirning law.

571    In his primary affidavit Bunna Lawrie used language to refer to many concepts associated with the sea or seafoods, as well as names for places in or near the Sea Claim Area through to and beyond its eastern boundary.

Role in the Mirning community

572    Bunna Lawrie said that it was his duty to teach about “our culture and how we live on our land and how we look after and protect our Mirning country, where our stories go and how we connect to the land and sea”. He said that within his “whale totem family” he taught whale dances and songs to younger generations, about participating in ceremony and about their duty “to protect our Mirning country and totem the whale”.

573    He annexed letters acknowledging his status in the Mirning community to his primary affidavit.

574    Bunna Lawrie said that the name for his family clan was “Yirgarla of the ngandartha Yinjyla Nation”. He said that the Yinyila Nation covered “all the Mirning clans”.

575    He gave evidence that Mickey Free Lawrie’s family were “Yirgala Mirning family” and added that there were other clans with other totems and other waterholes. He continued (at [117]):

I am one of the billiaum (sea people) that holds the whale totem. We are the keepers, guardians and protectors of our sea coast and the seas beyond, our ngandartha (land) and sand dune country of the ancient seabed. Our ancestors’ spirits cry for us in joy if we have been away and we are back home.

576    He later asserted that there were three “larger Mirning clans” as follows (at [181]):

…  The first being the Yirgarla clan at the centre out from Koonalda at the heart of the rainbow, which has an overarching responsibility for all the clans, being descended from Jeedara and Yagarilya and named after the star Venus. The two other major clans are the Yoolbara (sometimes written Yulbari) clan in the east and the Wondunda (sometimes written Wonunda) clan in the west. Many of our totem clans were very small.

577    Bunna Lawrie said that the Yinyila Nation included more than 24 clans naming totem clans of the wallaby, wild cherry, possum, white ant, salmon, wild turnip, emu and kangaroo. He said that many of the clans had died out because of the pressures of colonisation, massacres and killings by other tribes. He said that the Mirning people were strong and had “absorbed and continued to look after the country where clans have died out”. He continued (at [191]):

When one of the clans within the Yinyila Nation became ‘extinct’, there continue to be protocols for who within the other clans took over rights and responsibilities for the totems and waterholes. This was strictly only within the Mirning clans, which enables the practical continuity of the Yinyila Nation over tens of thousands of years. Many Mirning People and clans died in the 1800’s, which is why my grandfather carried so many totems.

578    He said that clans were connected with totems through waterholes created by Jeedara. He said that each clan had waterholes from their ancestry and marriage protocols were connected with them. He asserted that among the clans there would be up to four mabarn bai as well as healing people within each clan. He said that Mickey Free Lawrie was a mabarn bai and that he had “all of the bloodlines and totems and was the chief of all the Mirning of the Yinyala Nation”. He said that Mickey Free Lawrie’s totems were the whale, wild grape plant and the sea waterhole.

579    In his primary affidavit, Bunna Lawrie described in several ways the “exclusive” nature of Mirning traditional laws and customs which, he said, precluded membership of any person who identified as anything other than Mirning. That evidence amounted to a preclusion of dual-membership which he said had its foundation in Mirning traditional laws and customs that could not be broken. Among other places, the concept was expressed in the following passages:

120.    I was taught, and so I practice, that when you have responsibilities and duties, then you belong to one group. This is a strict Mirning law and our custom of law and we obey that law and tradition. Our law, language, culture and spiritual lineage is distinct from those of the tribes to the west, north and east, even if there are words common amongst their languages, even if there is intermarriage, and even if we come together for ceremonies or other gatherings.

121.    Anything to do with neighbouring tribes goes to the mabarn bai (Medicine man) and the Council of Mirning Elders through a nwalgakn (meeting).

122.    There is respect and acknowledgement when a Mirning person marries a non-Mirning person. The non-Mirning spouse can travel Mirning country and have rights to hunt and fish and camp. However, they can only choose one tribe if they wish to speak for country. Mirning tradition requires that you have to be staunch, true and stand by your true responsibilities and duties of your ancestors that you carry on and look after.

123.    I have seen what happened at Koonibba Mission, as this confusion and displacement of tribes and family groups caused nothing but conflict, division and misery in living together and others trying to be someone else in our land and in our culture. If you lose your culture and lose your way, and you lose respect for the ancestors.

580    Bunna Lawrie said that the Mirning Council of Elders had authority to recognise the duties and responsibilities an individual did or did not have and whether they were following them. He said that there is continuity of laws and customs “in fulfilling responsibilities and duties for family line/clan totems and waterhole country”, that had been there since the Dhoogoor and that had not changed. He asserted that he was taught by Mirning elders that he had a duty to protect and preserve Mirning country. This included cleaning rockholes, protecting totems, ensuring animals are not trapped in caves, clearing beaches of fishing nets and rubbish, and repairing vandalised sites.

581    In his primary affidavit, Bunna Lawrie said this on the topic of transmission and descendancy:

128.    There is transmission from the Elders through generations, so that there is continuity of goonminyerra laws and customs in fulfilling responsibilities and duties for family line/clan totems and waterhole country. These laws and customs are not changed; they have been here since the Dhooghoor.

129.    For the Yirgarla clan, the bloodline is from our ancestor Tjabilja. From her, the whales and the sea are our main totems. Transmission came through the old Elders, such as Mickey Free and Kit Mudjina, and then those of my uncles, aunties and mother who were in their turn Elders and law and ritual holders.

130.    There are further totems and waterholes that Mickey Free inherited from his Uncle Jimmy Mingo. Jimmy Mingo had duties and responsibilities for at least 17 waterholes on Mirning country. Also, when a family line/clan dies out, those responsibilities and duties are inherited by other family lines/clans through kinship protocols. This inheritance can only happen within the Yinyila Nation clans which continue to follow Mirning laws and customs. In this way, the ancestry can still be traced back through the bloodline to the Great Creators of country and there is continuity of caring for country.

582    Bunna Lawrie said that before European settlement the Mirning people were isolated from the people to the northwest and south, and that they were a unique people with a unique culture. He annexed to his primary affidavit photographs depicting examples of the practice of Mirning culture through art, song, dance and caring for country. He asserted that the uniqueness of that culture could be seen in:

(1)    Unique aspects of the language, manner of speaking and other ways of communicating (including smoke signals and hand signals).

(2)    Culture and protocols:  including “a recognisable stye in our art, our dance and our song”, including gestures in the whale dance, the practice of women dancing together, the manner of shaping tools and harvesting medicine, symbols and designs that gave tools spiritual power. He gave as an example of the latter a ceremonial boomerang from Denial Bay that he saw for the first time some years ago and had since replicated. He said that showed the spiritual ancestors flowing through him and guiding him and emphasised the importance of respect for ancestors that allowed them to come through.

(3)    Physical characteristics:  Mirning people being smaller with mostly copper-coloured skin and unique birth and fire marks.

(4)    Spiritual heritage:  each clan having “a creation story that combines heritage with the spiritual”. The “main clan” being Yirgarla Mirning are the “children of Jeedara and the Seven Sisters”, the whales their “brothers and sisters”.

(5)    Identity and nature:  the word “Mirning” meaning to listen, learn, observe and understand wisdom and knowledge, its people having the same caring and friendly nature as whales.

583    Later in his affidavit Bunna Lawrie said that the landscape plants in Mirning country were different from neighbouring tribes.

584    He referred to films and exhibitions that recorded the cultural activities of Mirning people, including Whale Dreamers (2008) and Operation Jeedera (2017). He referred to awards he had received in Australia and internationally for his contributions as “Whale Songman and holder of the Ceremony bag”.

585    As to the location of Mirning country, he said more than once that it extended to near Streaky Bay, adding that the region to the west of Clare Bay toward Fowlers Bay was “particularly important for the Yirgarla clan”. He provided a map produced by Professor Ulm at James Cook University showing sea level changes and archaeological sites on the sea floor. He overlaid on the map an image of the Yerrambai (rainbow bridge), being a huge rainbow blown by the ancestral whale Jeedera for Mirning country, forming an arch from Point Culver to a place near Streaky Bay. He went on to explain the Yerrambai as follows:

149.    The yerrambai, (rainbow bridge) reflects our dreamtime story of creation. Jeedara, our great ancestral whale came from the Milky Way and travelled through our ancient sea and land. He blew a billiarnie yerrambai, (coastal rainbow) in the Dhooghoor (Dreamtime). The rainbow spanned out to Yirgili (Point Culver, WA) and to Murphy’s Haystacks in SA (the traditional name has sadly been lost but that area is called galga (star). Rocks of this kind are called Madurba Poondong (Red Boulders) and more specifically Thauongyi Ngari (sacred place where people’s spirits live in the rocks). The rainbow light moved south to what was our ancient shoreline in between these points and north to what was the end of the limestone ancient seabed, which are the water holes that now form the East-West Railway. Annexed hereto and marked BRL13 is a copy of a painting I made over the years 2019 and 2020 of the Jeedara and Yagarilya Dhooghoor creation story.

150.    In the middle of the rainbow is Koonalda cave, a very sacred place. Below the rainbow arc used to be our great plain, our womwooum (home and hunting ground). This was thousands of years before non-indigenous people came to our country, when the sea level was much lower. The ancient shoreline between Point Culver and Streaky Bay was much lower than today. I understand from scientists that it was about 100-130 m lower. Today this area where the sea has covered our ancient lands is the sanctuary for our brothers and sisters the whales.

151.    As the Whale Songman of the Yirgarla clan, I have a special responsibility to protect whale sites and this is why many of us have recorded the sacred place of Clare Bay as our eastern clan boundary. There are also whale sites further east that are now submerged. The photographs that are Annexure BRL14 hereto are two photographs of the Djalyingadri (Whale Tail), or part of it, at Clare Bay. This is where the Yirgarla clan whale dreaming comes from the yirrerie, Milky Way, down into the sea and then into the land. However, our stories tell how Jeedara scraped his belly when he travelled over the rocks, because the sea had not yet come to Clare Bay. Those markings on Jeedara’s belly are recorded in our art.

586    Bunna Lawrie said that he had a duty “as Senior Elder of the Yinyila Nation of the Mirning clans” to protect all of the country within the rainbow.

587    Bunna Lawrie asserted that the eastern boundary of Mirning country extended as far as Venus Bay or “at the eastern end of the yerrambai (rainbow)”, or Wallala Rock near Wirrulla, incorporating Cooeyanna Well and Murphy’s Haystacks. He said that Eucla in the west took its name from Yirgarla (meaning Venus). Inland, Mirning country extended north to the Trans-Australian Railway Line and incorporated caves at Koonalda and other places as well as Koonibba and Wallala. Bunna Lawrie claimed that there was no boundary to the south, “just our sea country and the home of the whales, our family, and Jeedara sleeping in the sea”. He said that the sea country went at least as far as a now submerged ancient plain where people once lived and that Mirning people remember that country.

588    Bunna Lawrie referred to efforts made in 2019 and 2020 to prevent tourists from entering Koonalda cave, “our precious and fragile men’s site”. He said that male elders had a responsibility for those who entered the cave and said that he could say more in a restricted session. He referred to songlines of totemic ancestors on the land, including Eagle-Hawk and Kurndrooba (a marsupial rat that transformed into a seahorse).

589    Bunna Lawrie said he was taught that if others wanted to come onto Mirning country, they needed to ask permission. He said the neighbouring groups always respected that law and knew that coming onto Mirning country without asking for permission was wrong and may cause them sickness. He added that there was no doubt about that law and that it was common among all Aboriginal people. He continued:

160.    Unfortunately, the coming of Europeans to this country changed this law and in particular, the testing of atomic bombs at Maralinga had an impact on this with non Mirning People coming to live permanently in our country.

161.    Many people from different groups now live at Yalata, Koonibba and Ceduna in our country. However, living in our country does not give them any rights to our country or any authority to speak for our country. This has always been kept by the Mirning People.

162.    Mirning country cannot be sold or given away, it lives with us and it simply cannot be inherited from merely living in Mirning country.

590    He later added that the laws about permission extended to hunting and fishing and that the role of controlling and governing the country fell to the Mirning elders.

591    Bunna Lawrie gave evidence that traditionally Mirning people had an annual clan walk from Clare Bay, around Head of the Bight and into Western Australia, conducting ceremonies, honouring sacred sites, caring for country, checking fish traps and collecting bush medicine. He said that Mickey Free Lawrie had done such walks, and his mother had also done one. He said “[t]oday we have cars and we still travel the country” and added that the whales also came to sea country on their annual pilgrimage. He stated that the boundaries of country were shaped by and follow the “songlines and rainbow” of Jeedara, the great white whale from the Dreamtime. He said that as the Mirning song man he sang songs for places on country, including at the Head of the Bight.

592    Bunna Lawrie told of his feelings of pride and closeness when travelling on country. He said that the amazing Mirning heritage would be lost to Mirning people if they started to mix and falsely include in the Yinyila Nation people from the Western Desert cultural bloc.

593    Bunna Lawrie referred to a history of conflict with neighbouring groups, describing them as “troublesome and bossy” and reciting derogatory names traditionally given to them. He said that Mirning people traditionally feared desert tribes to the north, asserting that they had been brought into Mirning country by the government and were now trying to use native title (including this claim) to threaten Mirning culture.

594    Bunna Lawrie annexed to his primary affidavit a letter written by his mother in 1987. The letter acknowledged the Yirgarla clan with its totem Jeedara and stated that “Mickey Free Lawrie was chief and protector and guardian and custodian over the whole Mirning territory”.

595    Bunna Lawrie claimed that “Aboriginal people whose homelands are not coastal” (including the Kokatha and Anangu people) lack “connection to our coastal country”. He said that Mirning sacred places have been disrespected and vandalised because there were too many tourists, and that Mirning people were not acknowledged or recognised at the Head of the Bight.

Practices relating to the sea

596    Bunna Lawrie said that the Mirning never fish at Miranangu (Head of the Bight) as that is a sacred place. He said that there are songs for fishing at some places which he could sing in restricted sessions. He provided the translation of a “fishing and welcome song” that Mickey Free Lawrie would sing.

597    He asserted that Mirning people used canoes to travel to karsts where fish would be trapped by their nets. He stated that his Mirning ancestors had placed yalga birrin / barrin / birri (fish traps) and boondin wari (stone arrangements) along the coast. He said that his uncles showed him fish traps at Eucla, Wilson’s Bluff and Merdayerra Sandpatch. He explained how the fish traps were made and said he had repaired these traps with his uncles. He said nudi (fishing nets) made from woven wombat hair were also used to catch fish.

598    In cross-examination by the State, Bunna Lawrie explained that the best way to get munama and other shellfish was to wait for the low tide. In response to the State’s question about whether shellfish could be collected “in the intertidal zone between high tide and low tide” Bunna Lawrie said:

Well, like I said, if - I been - I been covered up by a wave once when I was getting oysters and the big sudden wave I didn’t see it coming and - but lucky there was rocks. I laid flat and I held it. The waves went over me and I - and I took off back up to the place where the waves weren’t going to reach me. But there was nice big yummy oysters on a rock, you know, so you just got to be careful, very careful.

599    Bunna Lawrie said that there were ceremonial and spiritual uses of the sea evidenced by the Mirning practices of calling whales, having protocols for sacred places and having burial sites along the coast and within the sea. He said that the Mirning people protected the wellbeing of sea creatures and totems, and restricted access to places that were dangerous within the sea.

600    He said that waanya (ancestors) and jingy (spirits) live in sacred places including Djalyingadri (Whale Tail), Yerlada (Clare Bay), Bilarngaroo (Twin Blowholes) and along the Ngarganguri (Bunda Cliffs). He added that Jeedara’s spirit sleeps in the sea and along the coast according to his creation story, adding that the sacred places where spirits live were honoured and respected by Mirning people placing branches at the sites, speaking in Mirning language and singing.

Mirning ceremonies and sites

601    Bunna Lawrie asserted that he was shown Mirning sites from when he was five or six years old. He said that he was a “keeper” of some sites for which he would perform songs and dances. He added that particular elders looked after the whale sites. He said that the Mirning believed the bilarn (white ochre), the bilyara (yellow ochre) and the murdarba (red ochre) (used in ceremonies) were gifts from “the whale in Dhooghoor times”. He said that Mirning elders taught him about their people obtaining ochre from the seabed in ancient times when the sea level was lower. He said his family told him stories about how a kobarda (canoe / boat) was used to collect ochre as the sea level rose.

Mirning Dreamtime stories

602    Bunna Lawrie shared Mirning stories which he said were taught to him as a child by his mother, grandmother, uncles and aunties. He explained the story of Jeedara in his primary affidavit noting it contained restricted details that he could not share openly. He said the great white whale Jeedara came from the yirreri (Milky Way). Jeedara protected the ocean and taught other animals “the ways of the creator”. The whale swam with djulea the penguin and wanchilya the dolphin who told him about the Seven Sisters. Bunna Lawrie stated in his affidavit that the Seven Sisters “took a big rock and hit [Jeedara] on the head” at Biddy Ngandan Wal (Mexican Hat) and “[t]hat is why the big rock today is shaped like a lump”. The Seven Sisters hit Jeedara again at Mungjengaru (Head of the Bight) creating two blowholes which burst with fire that marked the land.

603    Bunna Lawrie explained that red and yellow ochres came from the blood of Jeedara. Djaljirr (flint) and white ochre came from the foam created by the whale. The Seven Sisters then gave birth to the Mirning people. Bunna Lawrie said that Jeedara created the ngargjarnguri (Bunda Cliffs) and many karsts with his powerful body and tail. He also identified dtauthar maru (black dingo), bilarn dtauthar (white dingo), jhidara (black snake) and biliangaru ngagnoo or goorgoo (cave owl). He said jhidara protected precious Mirning caves and waterholes from invaders and unwanted possessors, and biliangaru ngangoo or goorgoo is a messenger and guardian of flint and Mirning art and artefacts. He said that the story of Jeedara has been celebrated at Miranangu (Head of the Bight) for tens of thousands of years. He provided the names of more Mirning stories but said he would only be able to share them in a restricted session.

Other evidence

604    Bunna Lawrie claimed that the Mirning people were not allowed to venture beyond the edge of the Nullarbor Plain and that non-Mirning people required permission to enter Mirning land. He said that there are specific areas and protocols amongst different Mirning clans. Bunna Lawrie added (at [262]):

…  For example, our whale totem is across from Clare Bay on the jalja ngadri (tail of the whale) across to the bidimula (nose of the whale) beyond Point Culver. The joombren (fins) of the whale are in the sea and along the edge of the Nullarbor Plain. The moumgjen garu is the blowhole of the whale. Other Mirning clans have different totems and their rights extended over smaller areas, though all come under the whale totem family with government by the mabarn bai (Medicine man) with the Council of Mirning Elders.

605    Throughout his evidence, Bunna Lawrie repeated that he was the mabarn bai. He said that he was Chairman of the Mirning community throughout the 1990’s and was the “main Mirning spokesman”.

606    Bunna Lawrie discussed a previous native title claim by the Mirning people between 1995 and 2004. He stated that the claimants were advised by their lawyers to have a joint native title claim with the Kokatha and the Wirangu. He alleged that the lawyers had a conflict of interest in dealing with the matter. Bunna Lawrie expressed dissatisfaction with the resulting “Spear Creek Agreements”. He claimed that the agreements were not adhered to and that this was to the detriment of the Mirning people.

607    He emphasised that Mirning people were distinct from Ngadju people, Wirangu people, Anangu people and Kokatha people. He said that Mirning people had different laws, customs, language and creation stories. He explained Mirning traditions relating to deaths and funerals. He stated that the spirits of the dead travelled out to the sea and to the Milky Way.

Evidence given on country

608    In his oral evidence at Davenport Creek, Bunna Lawrie said that his mother told him that he had an ancestral connection to the place through Mickey Free Lawrie who was “the first man that came to [Davenport Creek]”. He added that his grandfather took the missionaries there to show them where to source water from. He said that they would dig holes in the sand dunes and the holes would fill with water as the water levels rose.

609    Bunna Lawrie stated that the name for Davenport Creek in Mirning language was Darndungyiri which is a place where the mullets come. He agreed that the alignment of the creek had moved throughout the time he visited it. He said that there was a corroboree ground nearby that had been covered in sand and he had been told stories by his aunties and uncles about times when Mickey Free Lawrie used to go there.

610    At Davenport Creek, Bunna Lawrie told the Dreamtime story of the kardala (salmon) and the dardunga (mullet) who fell in love with each other. The story was told to him by his mother and his uncles. He said that the fish slept together in a hole under the reef and when they woke up their tails were tied together. The spirits of the knotted fish went into the Milky Way after they died and they left a star pattern in the sky resembling them. He said that the story was relevant to Davenport Creek because the fish and the whales go there to mate. Bunna Lawrie then sang a “thank you song” about the sea in Mirning language. He said that he was taught this song by his brother who heard it from their mother and grandmother.

611    In cross-examination by the applicant’s Counsel, Bunna Lawrie said that he made didgeridoos from mallee trees. He said that he was not taught how to make them by Mirning elders and that “[a]nybody can make didgeridoo because it’s so easy”.

612    Bunna Lawrie stated that Mickey Free Lawrie “didn’t claim” Davenport Creek but in his response to a later questions he said that Mickey Free Lawrie claimed the site to protect it from the missionaries.

613    In his oral evidence at the Jeedara site at Clare Bay, Bunna Lawrie said that he had been to the site many times to pay respects and show his greetings and acknowledgement of the site and his ancestral totem. He pointed to a place that was “very sacred and important … to the Mirning People”. He explained that there was a protocol for that sacred place which involved breaking a branch and taking it there. He said that the site was the start of Jeedara’s journey and that Jeedara went towards the west from there.

614    Bunna Lawrie said that there was a “greeting song” for the Jeedara site which was sung to greet the whale. He performed a dance in relation to Jeedara which he said he had previously performed at the Jeedara site when he was there to film Whale Dreamers in the early 2000’s. He asserted that he had also performed the dance in the 1980’s and 1990’s and when he was younger. He said that he learned some of the actions in the dance from his uncle Bulla and that his sisters and nieces sometimes did the dance with him.

615    Bunna Lawrie brought an object made from whale bone (which he used for ceremonies) and a boomerang (which had been gifted to his eldest brother by the Waramungu (from the Northern Territory)) to the Jeedara site.

616    At Fowlers Bay, Bunna Lawrie told a story about balgada, named that because of his gada (head) and balga (whiskers), who fell into the water and was then given thagalu (scoops) by the wadu (wombat). Balgada then learned how to swim and turned into a seal. He said that he had heard this story from Mirning elders and that it related to Fowlers Bay as there was a little cove there where seals went to rest.

617    Bunna Lawrie said that there were specific Mirning rules about fishing such as refraining from overfishing. He said if someone caught too many fish they would have to share it with relatives or animals such as eagles and dingos. Bunna Lawrie said that the Mirning had to speak to the sea when entering the sea to inform it of their presence. He asserted that these rules came from Mickey Free Lawrie and that he had learned them from his mother, grandmother, uncle Albert, brother Willis and “from all the people that I know that I’ve spent time with throughout my life”.

618    Bunna Lawrie gave evidence about the importance of Wookatha where his grandfather lived when he was younger. He identified it as “a healing place” and “a place of medicine”. He explained that “Mailman Jimmy Mingo” was from a place near Wookatha called Curagie.

619    Bunna Lawrie stated that he only swam in the shallow water and would do so to cleanse himself. He said he was told that the sea is a medicine and a purifier. He explained that during “[t]he days of no showers and no house” Mirning people would go for a swim at the beach. In response to questions regarding how far out into the sea they would go to cleanse themselves, he said “5 to 10 metres”.

620    At Gilgerabbi, Bunna Lawrie made whale noises which he said were made by Mickey Free Lawrie. He said that he learned these noises from his eldest brother, his mother, his grandmother and his uncle Albert. Bunna Lawrie then performed parts of a “whale greeting song” which he said he sang when he felt the spirit coming into his body. He said he learned the song from his mother and his eldest brother Willis.

621    Bunna Lawrie said that he had seen whales “getting hookey” which he described as whales “hanging around” to find themselves a partner. He said that in the past he had called to the whales at Mirinoonga (a sacred whale calling place) at the Head of the Bight. He told a story of a time in around 1991 or 1992 when he called to the whales at that site and a baby whale splashed him with water. He said that the whale then rolled over and showed a big white diamond on his stomach. Bunna Lawrie stated that the diamond is a sacred symbol to Mirning people and represents the two whale stars in the galaxies. He described this event as his “spiritual initiation [for] becoming a whale man”.

622    Bunna Lawrie gave evidence that he had also called to the whales at Fowlers Bay, Clare Bay, Ilgamba (Head of the Bight) and at a location just before Merdayerra Sandpatch. He said he was around 24 years old when he first started calling whales.

623    Bunna Lawrie told a version of the story of Manarn. He said that one of Manarn’s two sons killed the other when they were out hunting because of jealousy. When the son returned to his father, he saw that Manarn was singing out for help from the sea. The son then went in to rescue the father but they both drowned. Bunna Lawrie explained that the Twin Rocks that could be seen from Gilgerabbi were the father and the jealous son from his story. He said that he learned this story from his eldest brother and his uncle Albert.

624    He then told another Dreamtime story about Manarn building a ladder and getting everybody to climb it up to the Milky Way. He said Manarn pulled the ladder down once everybody had climbed up causing them to fall and turn into stars. He asserted that he was told this story by his eldest brother who learned it from elderly relatives and uncles.

625    Bunna Lawrie told the story of Jeedara again while giving evidence at Gilgerabbi. He said that when Jeedara the whale met the Seven Sisters they began throwing rocks at him as they kept having disagreements. Jeedara then hid into some rocks but his tail was sticking out. Once Jeedara re-emerged he wanted to impress the Seven Sisters so he started shaking the water with his tail and created sea foam (djalyi). He then chased after the Seven Sisters and they hit him in the head leaving a big lump. Jeedara continued to follow the Seven Sisters to Ilgamba where he met wanchillar (the female dolphin), wandjila (the male dolphin), djulea (the big pinguin) and djooli (the small penguin). At Miranungu (Head of the Bight) the Seven Sisters hit Jeedara again, leaving two lumps on his head. He then went under the water and burst out, creating two blowholes. In his continued attempts to impress the Seven Sisters, Jeedara created the Bunda Cliffs. He then swallowed all the water and once he let the water out the sea levels started to rise and oceans were created. The Seven Sisters then became Jeedara’s wives and they all travelled together. Bunna Lawrie said that Jeedara then blew a big rainbow (yerrambai) from Point Culver in the south west all the way to Streaky Bay.

626    During cross-examination by the applicant’s Counsel, Bunna Lawrie said he was chosen to be the whale song man because he was interested in dancing corroboree and singing in Mirning language from a young age while others in his family were drinking and partying.

627    Bunna Lawrie asserted that tens of thousands of years ago when the sea levels were lower there were land, hills and mountains which were Mirning country. When Bunna Lawrie’s source of knowledge on this topic was questioned he said it came from Dreamtime stories passed down by Mirning elders from before sovereignty. He stated that Mirning country extended further than the eye could see as Jeedara and other whales travel to and from the Antarctic.

628    Bunna Lawrie said that he first visited the Bunda Cliffs when he was between six to eight years old and that he went back there whenever he could. He stated that he had not climbed all the way down the cliffs but it could be done by good climbers.

629    In his oral evidence on board the Asherah Bunna Lawrie made mention of Koondarra the turtle and his friend Baiongu (a Dreamtime “porcupine”). He said there is a little wallaby called Kogurda who lives on Pearson Island (outside of the Sea Claim Area) and is a totem for the Mirning people and one of their clans. He said Kogurda was involved in the story of Bingaring the owl which he had shared on a video relating to Merdayerra Sandpatch.

630    He said that he and Max Harrison (a witness from interstate) saw the “whale spirit” in each other and knew that they were whale men. He said he shares Mirning law and whale Dreaming stories with “other whale tribes”. When asked by Counsel for the applicant to identify current elders of the Mirning whale Dreaming law, Bunna Lawrie named only himself and Dorcas Miller. Bunna Lawrie said he was taught a lot by Max Harrison from the Yuin tribe (from New South Wales).

631    When asked about the source of his authority as a “Mirning whale song man”, Bunna Lawrie said that he got his authority from his mother, his grandmother and the Mirning Council of Elders.

632    Bunna Lawrie stated that he was told stories by his mother and grandmother about white people coming to the land by ship. He sang a song about a ship that was anchored in the sea. He said that he had heard the song at the Maritime Museum and said that it was sung by a coastal woman but he did not know where the coastal woman was from. Bunna Lawrie had prepared a translation of the song lyrics.

633    Under cross-examination by the State, Bunna Lawrie gave evidence that the only time he had been on St Peter Island was on a trip with the Ceduna Local Area Council in 1997 or 1998. He said that he motored past the island with Sea Shepherd in 2016 or 2017.

634    At Adelaide, Bunna Lawrie showed the Court a variety of objects including a piece of djaljirr or karrongoo (flint), a whitba (wooden hammer made from the gardia tree), a black rock, some spinifex wax, tools used for spearfishing and spear hunting, a woomera, a boomerang, a wooden staff, two hand carved wooden whales and some red ochre from the sea.

635    Bunna Lawrie gave evidence that Oscar Richards could not be told the whale law because he was Kokatha. He named others who he said did know the whale law.

636    The Court was shown a photograph of a painting by Bunna Lawrie which he said depicted the journey of Jeedara.

637    Bunna Lawrie stated that he drafted his primary affidavit himself but was assisted by his cousin’s daughter (Kathy Lillyhook). He asserted that Kathy Lillyhook’s father was the child of a relationship between Mickey Free Lawrie and a woman he was involved with between his two marriages.

638    Bunna Lawrie identified in his primary affidavit uncle Ted Roberts (a Kokatha elder) as one of many “[o]ther knowledgeable Mirning People who taught me”. Under cross-examination he said that uncle Ted Roberts did not teach him about Mirning laws. On further questioning he said that he “accidentally put [uncle Ted Roberts’] name [in his affidavit]”. He also acknowledged that some of the “[o]ther knowledgeable Mirning People” identified in his affidavit were not actually Mirning people.

639    When asked where the story of the Seven Sisters began, Bunna Lawrie acknowledged that the story travelled all over Australia but said that different tribes have different stories. He said that his understanding was that the Mirning story began in Clare Bay. When asked if he knew “the whale story from the Wirangu side, from [his] grandmother”, Bunna Lawrie said “Wirangu has got no whale story”.

640    When asked about his status as a whale song man, Bunna Lawrie said he obtained that title because he was “the only one [who] had the ability to deal, to sing, to sing to the whales”. He stated that he underwent his whale initiation by men from Elcho Island at the Head of the Bight in 1998 as part of the filming of Whale Dreamers but that he was “already a law man” before that. He said that he had powers when he was young and was told by his mother from a young age that he would be “a leader of this tribe” when he grew up.

641    Bunna Lawrie was cross-examined about whether there was a particular whale tail design that was “traditional” and “in the ways of Kit Mundjina and … Mickey Free Lawrie” in light of the fact that he had presented photographs to the Court with different whale tail designs. He claimed that the designs were similar and served the same purpose.

642    Bunna Lawrie was questioned about a song he wrote called “Michael William Lawrie” (named after his grandfather) when he was a member of the band “Coloured Stones”. The song was released as part of an album in 1984 and re-released in 1999. He was questioned on specific lyrics of the song including “[h]e named the Koonibba Rockhole” and “[h]e was a leader of the Kokatha tribe”. He was also questioned about a description of the song which referred to Mickey Free Lawrie as “a strong leader of the Kokatha tribe” but which made no mention of the Mirning tribe. Bunna Lawrie ultimately failed to give any convincing reason as to why the Mirning tribe was left out of the description.

643    Bunna Lawrie said that there was harmony amongst the Mirning, Kokatha and Wirangu tribes at Koonibba Mission while Mickey Free Lawrie was alive. He said that “everything changed” when Mickey Free Lawrie died and “[e]verybody went their own ways”.

644    Under cross-examination by the State, Bunna Lawrie agreed that there had been a decimation of Mirning people caused by white people in Western Australia and South Australia from the late 1880’s to the early 1900’s. He agreed that this decimation was continued in the twentieth century by Western Desert people such as Yalata people or people from Maralinga.

645    Bunna Lawrie gave evidence in cross-examination that in his view (based on what he had been told by his mother) Tjabilja was born in Eucla, travelled east to Fowlers Bay, travelled back to Eucla when she gave birth to Mickey Free Lawrie and then travelled east and back visiting waterholes and family.

646    Bunna Lawrie repeated that he had heard stories about kobarda (yurloo bark canoes) being used to travel in and out of garoos (karst mouth entrances) and caves. He said that he had walked along the beach and entered a cave near Merdayerra Sandpatch when the tide was out.

647    When asked if he had ever made the fishnets he had described in his primary affidavit, he said that he had not made any but had been told about them by his mother.

648    Bunna Lawrie asserted that his mother had referred to Tjabilja as Mailman Jimmy Mingo’s sister. He was then questioned about Kit Mundjina’s gender, as he had identified Kit as Mickey Free Lawrie’s brother but Tindale and Iris Burgoyne had described Kit as female. Bunna Lawrie maintained his position that Kit Mundjina was male and said his name may also have been Rupert.

649    He could not name any Mirning people who were born in the Fowlers Bay area prior to European settlement.

650    During cross-examination the State put to Bunna Lawrie that he had learned about the big rainbow (yerrambai) following discussions with Kim Kindersley in the early 1990’s when Whale Dreamers was being filmed. Bunna Lawrie disputed this and gave evidence that he learned about the yerrambai when he was in school. He said that he had learned about the big rainbow from his mother and uncle Albert but was unable to provide evidence about when and where.

651    When questioned about a meeting amongst people from around the world which occurred in 1998 at the Head of the Bight (recorded on Whale Dreamers) he agreed that a ceremony could not be undertaken at the Head of the Bight because of the tourist infrastructure that had been constructed there. The ceremony was instead undertaken 30 km west of the Head of the Bight. Bunna Lawrie asserted that at the ceremony the Yolngu people from Elcho Island performed their own dance movement which involved hand movements around the waist. He said that his movements were different as they involved crossing his arms above his head and quivering his legs. Bunna Lawrie denied that the quivering movements were “a Northern Territory thing” and that he had developed his hand movements “over the last 20 or so years”. He said he had learned the hand movements from his uncle Albert when he was around nine years old.

652    It was put to Bunna Lawrie that the first time he had a whale tail painted on him was by the Yolngu people at the 1998 ceremony. Bunna Lawrie disagreed and asserted that a whale tail had been painted on him on previous occasions but he was unable to provide any examples. The cross-examination continued:

MR AMBROSE:    Okay. And what struck me as – help me with this, Mr Lawrie. What struck me was surprising in this video is that you didn’t paint up any of the people, you didn’t lead the ceremony, and you followed the Yolgnu. And that’s because, at this point in your life, you weren’t performing the Whale dance and you didn’t know how to do it.

BUNNA LAWRIE:    Excuse me. We went there to sing a song out in front. We weren’t going there for a ceremony; we were going there to sing a song. And that’s why the two ancestral Mirning people – elders came and they watched it. And if they didn’t like it they would’ve made us sick or they would’ve scared us away. So that was just a – just to – you know, because we invited these people and to come and show them our special sacred places and caves and things - - -

…

BUNNA LAWRIE:     It wasn’t going to do a corroboree or a ceremony.

MR AMBROSE:    Yes. And that’s because at that stage you didn’t know any of the dances or ceremony - - -

BUNNA LAWRIE:    No. Look - - -

…

BUNNA LAWRIE:    In my younger day I would’ve knew it.

MR AMBROSE:    One more question on this, Mr Lawrie. If that’s the case, that you knew them all, on the night when you were all refused entry to the Head of the Bight, why didn’t you say to the assembled group, ‘I know the Whale Dreaming. I know the Whale dance. I’ll go and show it to all of you tomorrow down at the Head of the Bight’? Why didn't you say that - - -

BUNNA LAWRIE:    We only do it when we know that we going to get our country back. And it was getting back and we were getting closer, start showing people the Whale dance and – and, you know, because it’s really hard, hard to have our country back until we have our own place back so we can show people that we are doing this ceremony on the original land of the Mirning People.

653    He then acknowledged that he had conducted the ceremony since 1998 notwithstanding that Mirning people “still haven’t got our rights to our country”.

654    The State questioned Bunna Lawrie about some words used in his primary affidavit. He denied suggestions that ngarrgjnuri was a word from the Kimberley or from Arnhem Land and asserted that it was a Mirning word which he had been taught by his uncle Albert.

655    Bunna Lawrie said he learned to make the clapping sticks that he sometimes used in his dances by observing others making them. He referred to the sticks as “a universal musical instrument” but was unable to provide specific examples of people he had observed making them.

656    When asked whether he was aware that the woomera he had shown the Court on the previous day looked “an awful lot like the ones that are used in Arnhem Land”, Bunna Lawrie asserted that he had bartered that woomera and said he had “seen all different shapes” and “it doesn’t matter … what shape you make it”.

657    Bunna Lawrie was questioned about the diamond symbol that can be seen in one of the exhibits. It was put to him that the symbol did not appear in Bunna Lawrie’s earlier evidence and suggested that he had taught himself about the symbol and its connection with the whale. Bunna Lawrie asserted that the spirits always showed him the diamond all the time and discussed the time when he saw the symbol on a whale in the early 1990’s. In re-examination Bunna Lawrie said he was taught about the diamond in the stars being linked with the diamond on the whale by his uncle Albert at Koonibba when he was nine years old.

658    Bunna Lawrie said that the only current Mirning whale law men were himself and Robert Lawrie. When questioned about who would take over after them, Bunna Lawrie claimed that he was watching people to find the right person but he could not say who he was observing. In re-examination Bunna Lawrie said he had been watching “5 or 6 or 7” individuals for over 20 years. He said he was unable to disclose their names because he did not want them to know they were being watched and because disclosure could cause disagreements.

659    Bunna Lawrie said that for a person to be Mirning “[i]t would have to be … mainly through the blood and follow Mirning laws and customs continuously”. He said he followed his mother’s bloodline and that people “can make a choice” to follow their father or their mother under Mirning laws and customs.

660    He went on to say that the twelve members of the Mirning Council of Elders hold the Mirning laws and customs. When asked about how the Council of Elders made decisions, he stated that all members had to agree for a decision to be made. He said it was possible for the Council of Elders to consult other Mirning people before making decisions. He gave evidence that the Council of Elders also consulted with Mirning people in Western Australia and said there were instances where the Council needed to consult with another group such as the Wirangu. He denied that there were any decisions for which the Council would need to consult with the Kokatha.

661    Bunna Lawrie was cross-examined on his use of Mirning language. He said that the last time he had a conversation in Mirning language was “[p]robably just over a week, couple of weeks back” when he had a conversation with Dorcas Miller.

662    The Commonwealth cross-examined Bunna Lawrie on inconsistencies between his version of the Jeedara story and the version told by Dorcas Miller. He was specifically asked whether Jeedara met up with two dolphins (as Dorcas had asserted) or two penguins or other sea animals. Bunna Lawrie answered:

Well all I know is that there was a couple of dolphin, there was a penguin called Julie or Julia which became Julia and out to Ascot – Jeedara crossing. So it doesn’t matter if it’s two dolphins or three dolphins or one penguin or two penguins.

663    He later said:

It’s the same story whether it was penguins or dolphins because it was all in the area and it wouldn’t matter because they were – the main story of the whale story is Jeedara. So if there was penguins coming together or whether was coming before or after it’s in the same story. And as you know - - -

664    Bunna Lawrie did not provide a response for why the dolphins or penguins were of any relevance in the story of Jeedara. He eventually said that he agreed with Dorcas Miller’s version which stated that “the dolphins took Jeedara to Twin Rocks from Mexican Hat” but he ultimately said that his understanding of the Jeedara story was that “there were penguins and dolphins there”. During re-examination Bunna Lawrie clarified that when a woman told the Jeedara story she would speak of wanchillar the female dolphin because only women can speak about female creatures from the sea but when a man told the story he would speak of djulea the penguin which only men can speak about. He said that was the reason why he had mentioned penguins in his version of the Jeedara story.

665    In his primary affidavit Bunna Lawrie had used wanchillar when relating the story of Jeedara.

Dorcas Corrie Miller

666    Dorcas Miller was born on 17 August 1938 at White Well, on Mirning country. She said that her mother was also born at White Well. She is the oldest of the Aboriginal witnesses to give oral evidence at the hearing.

Preservation evidence

667    At a preservation evidence hearing on 4 July 2019, Dorcas Miller was cross-examined on an earlier affidavit dated 13 September 2018 in which she had said (at [7]):

But Mirning do accept that that part of the Sea around Fowlers Bay was traditionally shared by the Mirning and Wirangu because we recognise that that is the boundary area between us two tribes. This part of the Sea is that part of the Far West Coast Sea Claim that is in front of the land area which Clem Lawrie and the Mirning have been saying all along is the only shared area of Mirning land. This sharing is between Mirning and Wirangu only. Annexed hereto and marked with the letters ‘DM 1’ is a copy of map filed by Clem Lawrie on 20th January 2005 in the Mirning People’s claim WAD 6016 of 1998 showing the shared area coloured in orange.

668    In cross-examination she said that her earlier statement was confined to the land, but did not relate to any part of the sea. She added that Wirangu people had no sea country and denied that any part of the sea was shared between Mirning and Wirangu people.

669    I do not otherwise consider it necessary to summarise the content of the preservation evidence. It is largely consistent with the affidavit and oral evidence Dorcas Miller gave at trial. I have relied on the parties to draw attention to any significant inconsistencies, and those instances are referenced below.

670    Dorcas Miller confirmed that her mother was a Kokatha woman who was born at Decres Bay. She said that Belinda Clarke taught her how to make bush medicines near Koonibba and how to hunt for land animals such as wombats, rabbits and lizards, which were cooked in ashes.

671    Dorcas Miller said she had inherited the right to call herself Mirning through her father, his parents and all of her ancestors. She identified herself as the most Senior Female Mirning Elder and a member of the Mirning Council of Elders. She confirmed that her mother was a Kokatha woman who was born at Decres Bay.

672    She described Mickey Free Lawrie (her paternal grandfather) as a great Mirning elder and leader who was known for his knowledge of country and caves. She said that he “founded” Koonibba and built a home at White Well near Head of the Bight. She grew up at White Well, Nullarbor Station, Shepherd Hut, Colona and Koonibba.

673    Dorcas Miller referred to a cave at Koonalda that was very special to her grandfather. She said he used to stand at the edge of the cliffs of the Great Australian Bight, stretch out his arms and say the “Great Australian Bight is the Gateway to the Galaxy”. In her oral evidence she said he would take water into his mouth with a pannikin and spit it out like a whale before making that statement. She added that she continued to do that today and told her children about it so it would continue. When asked why the Great Australian Bight was the gateway to the galaxy she said it was where Jeedara came down from the Galaxy with the Seven Sisters dancing on his back to create all of the cliffs through to Eucla.

674    Dorcas Miller gave evidence that her grandfather put her father into the children’s home at Koonibba at the age of nine, but took him from the home aged 13 to work at Nullarbor Station. She described Koonalda as a special place to her father and said he had regretted telling a white man where water could be found there.

675    Dorcas Miller said that she had roamed the Nullarbor right down to Koonalda Cave, and that was how she was schooled in Mirning country and culture. She said that during her childhood it was just Mirning people on country and nobody else came to places like Head of the Bight or the caves. In her oral evidence, she described finding shellfish and fishing with lines for sweep, and her grandfather singing in language about the whales and calling to them from the cliffs at Head of the Bight. In her affidavit, she said (at [29]):

Dad knew that whales were in on the Head of the Bight, where the Twin Rocks is today. We were young and surprised to see such a big fish dancing. Dad said, ‘That is the whales, not a fish.’ They were dancing for my Dad in a Mirning ritual way. He used to take us at weekends to see the whales in White Well.  …

676    Dorcas Miller narrated events from her childhood including her father working on the dog fence and later at Colona Station. She described her father assisting with the relocation of people from Ooldea to Yalata when “[t]he government wished to move the desert people … before the bomb”.

677    Dorcas Miller said that Mirning laws and customs were “connected with our whale dreaming and the land and sea”. She stated that to be Mirning you had to have “the blood of Jeedara, the great whale and Yagarillia, the Seven Sisters” and to follow Mirning laws and customs to care for Mirning country. She described collecting bush medicine and plants and annexed a photograph of that occurring on land. She alluded to men’s ceremonies at locations not known to her, as well as women’s sacred places that she did not wish to discuss publicly. There was no application for the Court to receive evidence about those places in a restricted session.

678    Dorcas Miller gave evidence that when she was about seven years old her father and some Mirning tribal men with bones in their noses told her that Mirning country extended eastward around Streaky Bay and westward to Point Culver. She said her father told her that Mirning country was under water and in the sea “as far as I can see”, and that people would collect foods in places where the sea and whales now are. She described Wallala Rock as a boundary place and said that she did not go to the Barngarla side of the rocks because it was not her country and she respected boundaries. She asserted that Mirning people were the only traditional owners of Mirning sea country and the only people who had native title rights and interests in the Sea Claim Area.

679    Dorcas Miller said that Mirning laws and customs were different from those of the desert. She referred to past conflicts between Mirning people and desert people. She described Wirangu people as coming from inland and said they were “like gypsies, travelling around without land”. She explained that Mirning laws came from “our Dhooghoor Dreamtime from the Milky Way and from Jeedara and are created from our limestone coastal country and sea”. She said she did not always tell Mirning stories because others would try to steal them and asserted that Wirangu people had tried to steal “our seal and wombat story”.

680    Dorcas Miller stated that she practised Mirning laws and customs and taught them to her family and young people. She continued:

76.    There have been some changes in the last two hundred years with other people coming onto our country and settling here. Traditionally, we have very strict rules that others have to request permission to come onto our country. This is not possible to enforce today, though the rule is still known.

77.    Anangu people who live at Yalata do not come from Mirning country. They come from the desert country, north of the railway line. The Kokatha, Ngadju and Wirrangu people do not come from Mirning country. However, there is one Wirangu family who came from Lucy Washington, who was Mirning, and went Kokatha way. Some of the Lawrie family have also gone desert way and call themselves Kokatha and Wirangu, though that does not mean that Mirning country is now Kokatha country and Wirangu country or governed by their rules and laws. We cannot give away Mirning rights or Mirning country.

681    She said that she held the “Yirgarla clan story for Jeedara and the Seven Sisters from Clare Bay to Head of the Bight, as this is the women’s part of the story”. At the conclusion of her affidavit she told that story as follows:

83.    The Seven Sisters were on top of the cliff singing out to their brother, Jeedara. He would not listen and hid himself in the rocks. You see him there today. Annexure ‘DCM4’ hereto is a photograph of me at the Whale Tail, Clare Bay.

84.    Then the Seven Sisters bumped him and he followed the Seven Sisters right down to a place called Scott Bay. Jeedara got that angry with the Seven Sisters and all the foam at Scott Bay was just bubbling.

85.    Then he went to a place called Mexican Hat. That is where the sisters took big rock and hit him on the head. That is why the big rock today is shaped like a hat.

86.    Then he met two dolphins at Koombra, they guided him side by side to Head of the Bight, to a place today called the Twin Rocks.

87.    That’s where I stop. I cannot say any more, as this is a Mirning secret place. Then after their business with him, he made all the rocks. That is why all the rocks form the Bunda cliff today.

682    Dorcas Miller gave oral evidence at Laura Bay, Duck Pond, Clare Bay, Jeedara site, Mexican Hat (Munama near Fowlers Bay), Gilgerabbi and Adelaide.

683    She told the Court she had lived in Kimba and had come down for holidays at Smoky Bay with her parents Albert and Belinda. She went to Laura Bay four times during her childhood. She first went to Duck Pond with her father when she was about seven, before it was named Yarilena, when there were no houses there. She explained that in the vicinity of Duck Pond you could eat small red fruit known as sea grapes. She said her father and grandfather stopped at Duck Pond on trips to Ceduna because Mickey Free Lawrie “owned” Duck Pond. She claimed that her father and grandfather created a well there near the beach and planted a big fig tree. She referred to a similar fig tree at Smoky Bay. Neither of the fig trees were native. When asked whether Mickey Free Lawrie explained to her why he “owned” Duck Pond, she said it was because he had built the well there and came out to clean it.

684    Dorcas Miller said she lived at Duck Pond in or around 1956 after she married Robert Miller, but left because there was no running water. She stated that there was no one else living there at that time and nobody visited. She gave evidence about seeing her mother swimming at Smoky Bay, Denial Bay and Ceduna.

685    At the Clare Bay Jeedara site, Dorcas Miller told the Cout she had first gone there as a child and that her father had told her a story about the place. She recounted a story of the Seven Sisters looking for Jeedara (their boyfriend) who became ashamed and angry. She said that he swam by the sea to Scott Bay on the other side of Fowlers Bay where he came down at the full moon and poured his jally (sperm), and that is now the white foam in the sea. She said Jeedara had swum to Mexican Hat where the eldest of the sisters hit him on the head, making a lump. He was then guided by two dolphins to Twin Rocks. She said that she could not say more about that part of the story because it was “Mirning men’s business”. She described the whale shaped rock formation as the back and tail of Jeedara and said that the Seven Sisters were singing to him and looking for him to take him to Twin Rocks for initiation, but Jeedara did not want to go.

686    Dorcas Miller said that she had visited Mexican Hat when she was 12, when she lived and went to school at Fowlers Bay. She said she had travelled there by buggy but did not know the name of the beach and was not allowed to swim there because the sea was too rough. She described Mexican Hat as “part of Mirning Dreaming” and claimed that it was at that place where the Seven Sisters talked sense into Jeedara and from there he went to Koombra where he was guided by the dolphins.

687    She asserted that Mickey Free Lawrie owned the land around Fowlers Bay. She knew that because she had been shown a Deed by a man (from the Adelaide suburb of Salisbury) which said that Mickey Free Lawrie was the owner. She claimed the man had found the Deed at the State Library of South Australia but would not give it to her. When asked whether Mickey Free Lawrie owned Fowlers Bay in a “traditional way” she responded “[n]o, I – yeah, he bought the biggest Mirning country”.

688    At Gilgerabbi and some other places, Dorcas Miller appeared with her face painted in a way that she said “comes from Mirning tribe”. She said she could not speak about Gilgerabbi because that side of Head of the Bight was men’s business but Bunna Lawrie could tell that part of the story. When asked about Head of the Bight she said “I belong there, you know, I belong at the Head of the Bight”. When asked why that was so, she said that Mickey Free Lawrie had always taken her, her parents and her siblings there. She asserted that Mickey Free Lawrie and Albert Lawrie had told her not to go to Twin Rocks because it was a sacred place.

689    Dorcas Miller described her father standing on the edge of the cliff singing to the whales, making a whale noise through his mouth.

690    Dorcas Miller confirmed that there was a cave near Twin Rocks and said her siblings had written their names there. She did not know of any reason to go into the cave other than to play and stay cool. She said that when living at White Well she did not go to the cliffs along the Nullarbor Plain because “this is men business this way”. When asked whether that was about the land or the sea she said “I think both”.

691    She confirmed that no one swam at Twin Rocks or near Head of the Bight because the current was too strong and it was too rough to swim all the way east to Clare Bay and west to Eucla.

692    At Adelaide, Dorcas Miller confirmed that her father was a man who was initiated the “Mirning way” and lived all his life “on Mirning country, Nullarbor”. She agreed that her father’s “ancestral home” was around Eucla. She said that her father had four horizontal lines on his back going down to his waist that were the same as those drawn with flint in caves on the Nullarbor by her ancestors. She later identified Koonalda Cave and others north of the Nullarbor. She said her father had told her that the ancestors had put the stripes there. She asserted that her father had the same markings on his chest as well as a small hole through his nose. She claimed that she could not talk about whether anything was put through the hole. She confirmed that the markings and the hole were the result of her father going through business. She said she had not seen markings like her father’s on other men but later confirmed she had seen her father meet with other men who had holes in their noses like his.

693    Dorcas Miller agreed that yirgala was the word for Venus, that it came out at night and that if you followed it, it would take you to Eucla, the centre of her country. She said that Mickey Free Lawrie left Eucla as he was a traveller and that he had gone as far as Wallala Rock and Murphy’s Haystack which she identified as Mirning country. She said that if you want to figure out where Mirning country goes, you must look at where Mickey Free Lawrie explored.

694    Dorcas Miller agreed that there was a lot of intermarriage in her family between Mirning, Kokatha and Wirangu people. It was put to her that the intermarriage occurred because Kokatha people would come to the coastal areas at summer time. Whilst she initially agreed, there was then this exchange:

MR DE MARS:    And I thought you agreed earlier that one of the reasons for that was that the Kokatha would come down quite often and visit Mirning country on the coast. Do you agree with that?

DORCAS MILLER:    They would never come down, Mirning the only one allowed on their land. If they do, men chase them and kill them and eat them.

MR DE MARS:    Well how do you think it was, how it is the case that there was so much marriage then between the Mirning and the Kokatha?

DORCAS MILLER:    I can’t answer for that one.

695    Dorcas Miller denied that Fowlers Bay was Wirangu country or that it was “traditionally shared by Mirning and Wirangu”, persisting that it was “only Mirning”. It was put to her that in her affidavit evidence of 2017 she had accepted that part of the sea around Fowlers Bay was shared country, being a “boundary area between us two tribes”. She claimed she could not remember saying that in her affidavit.

696    Dorcas Miller said that the Mirning Council of Elders consisted of herself, Bunna Lawrie, Rose Miller, Meegan Sparrow, and previously (but not now) Robert Lawrie. She agreed that she had given evidence in 2019 about participating in a meeting of the FWC Aboriginal Corporation concerning water resources and the Nullarbor. She agreed that she participated in the Spear Creek meetings in 2004 but denied that there was an agreement reached to the effect that Mirning people were the appropriate people to jointly manage the Nullarbor National Park. Nor did she accept that the agreement formed a part of the rule book for the FWC Aboriginal Corporation. She denied that she was a member of the FWC Aboriginal Corporation. She went on to say that the “Mirning Council of Elders” had authority under Mirning traditional laws and customs to punish Mirning people for breaking Mirning law.

697    Dorcas Miller said that Mirning people got their rights through their father, describing that as a law. She agreed that Bunna Lawrie had got his rights through his mother. She agreed that her mother had rights in Decres Bay because she was born there and “people recognised her as having rights”. She also agreed that elders had an obligation to protect important sites and to pass knowledge to younger generations, that it was a custom for Mirning people to share food within their community and that the elders should be fed first.

698    Dorcas Miller told the Court that her father said he had learned the Jeedara story from somebody called Maggie, the wife of a man named Henry Dabbs. She said that Henry had met Maggie at Kalboorlie, that Maggie was married to someone else and that they were a “runaway couple” who came to the Nullarbor. However, she later said her father had not told her who had taught him the story. When asked whether her mother ever told her about the Jeedara story, she said “[n]o. Not. She from different tribe”. She denied that Jeedara turned into a snake at any point.

699    Dorcas Miller said that the sea was Mirning country because Mirning people used to walk there.

700    She confirmed that her father and her grandfather had told her Mirning country goes as far as the eye can see.

701    Dorcas Miller repeated that if Kokatha people came onto Mirning country they would be chased, adding that “[t]hey’re not allowed on Mirning country. No other tribe allowed on Mirning country”. She denied that tribes from the north would come south to trade, saying that instead the “Mirning used to go with them and trade with them”, including to Serpentine Lake, north of the Trans-Australian Railway Line.

702    Dorcas Miller said that the whale was a totem and that Mirning people had other totems including the wombat and the dolphin. She added that her family members had whale markings on their bodies. When told of Bates’ accounts of Aboriginal people eating beached whales, she said that would be wrong because you cannot eat a totem. She said that Aboriginal people who ate whales would be from another tribe.

703    Dorcas Miller was questioned about an inconsistency between the Jeedara story she told to the Court (involving two dolphins guiding Jeedara to Twin Rocks) and a version she told at the preservation hearing (involving two large penguins instead). She denied that she had referred to penguins and then said that when referring to penguins she had made a mistake.

Rose Patreena Miller

704    Rose Miller gave oral evidence at Laura Bay, Duck Pond, Munama (near Fowlers Bay) and Adelaide.

705    In her affidavit, she described herself as a member of the Mirning Council of Elders having authority to speak for Mirning land and sea country. She said that she grew up at Koonibba until she was about seven years old, before moving to Kimba. She testified that she regularly travelled back to Mirning country, including to Duck Pond (between Ceduna and Denial Bay) where her relatives lived. She described her grandfather planting fig trees on places in Mirning country, which she said included places as far east as Smoky Bay. She understood Mirning country to extend from Point Culver in the west to Streaky Bay and Wallala Rock in the east.

706    Rose Miller said that during her childhood she went on country to visit relatives, to camp and to perform cultural duties. She emphasised the importance of showing respect for elders, ancestors and country.

707    Rose Miller said that she considered Mirning people to have a unique culture and believed that some of the Mirning language had been taken by others. She said that Mirning stories and traditions had been passed down to younger generations through her, her mother and her grandfather. She claimed that “[o]nly coastal people with ancestors and bloodlines from this country have rights in the sea country”, and added that coastal people were one society that were different to the desert and inland peoples. She continued (at [23]):

Only Mirning people can inherit and speak for Mirning Sea Country. No other tribe can inherit or speak for Mirning Sea Country. It is only coastal stories, songlines, sites, traditions, customs and law connected to the sea. No other tribes.

708    Rose Miller went on to say that the Head of the Bight was a very important place for Mirning people, as a summer and gathering place where the sea could be accessed from the cliffs, and people could connect with the sea through whales and in spiritual ways. She explained that Mirning people believed that when their ancestors died, their spirits went through the blowholes and caves and out into the sea then up into the sky, and therefore described the sea as “our gateway to our afterlife”.

709    Rose Miller said that part of the story of how fire came to her country was related to the sea, but she did not narrate the story itself. She said that “old Elders” had also talked about a rainbow in Mirning country but did not identify the “old Elders” or say anything more on that topic. As to Jeedara, she said:

29.    We have Mirning stories about the whales and particularly Jeedara. In my artwork, I have many paintings of Jeedara, the Seven Sisters and the sea creatures from that story. One of my grandsons has the Mirning name Jeedara. He was given a whale cake for his first birthday. I asked for permission from Mother and from Uncle Bunna Lawrie when Jeedara was named.

30.    I can do the whale dance the traditional Mirning way. In our culture both men and women dance together. I dance with a stick and I wear traditional face paints in the style of the Seven Sisters. The Seven Sisters belongs to all tribes, though every tribe has its own token [sic]. I wear my face paints Mirning style and that is how I paint up the younger Mirning girls. I have something extra, as a Female Elder. I can talk about this but I do not wish for this to be taken by others and there would have to be a restricted session to share this.  …

710    Annexed to Rose Miller’s affidavit was a photograph of her painting her sister for a “whale dancing celebration”.

711    There was no application by the Bunna Lawrie Respondents’ lawyers for her to give evidence in a restricted hearing, as had been foreshadowed in her affidavit.

712    Rose Miller said that Mirning law (Dhoogoor) was the only law that could be acknowledged, observed and practised on Mirning Country. She said that Tjukurpa belonged to Western Desert country and that it was wrong to use Anangu words such as Tjukurpa when talking about Mirning land and sea. She did not agree with desert people claiming native title over Mirning waters, and said that her laws and customs would not let her give away sea country to others, as it would be like giving away her ancestors.

713    Rose Miller said she believed that the claim resulting in the FWC Land Determination involved “disrespect, lack of consultation and broken promises” and that she did not want the same to happen with the sea. She asserted that none of the people named as an applicant in this proceeding were Mirning, and added that Clem Lawrie had been “banished” and had no authority to represent Mirning interests. She said that he and April Lawrie had ceased to be recognised as Mirning in 2013 in accordance with Mirning laws and customs. To support this, she produced a letter from the Mirning Council of Elders asserting that they had been “disowned and banished from the Mirning community under traditional law”.

714    At Laura Bay, Rose Miller told the Court she had been to the area in the 1970’s with her grandmother Belinda Lawrie who, at that time, lived at Smoky Bay with Albert (Bulla) Lawrie. She described living back and forth between Kimba and Smoky Bay over some years as a child.

715    At Duck Pond, Rose Miller confirmed that she had lived near Koonibba for a short time when she was aged about four or five. She said that after moving to Kimba she had returned to Duck Pond through to the age of about 13 with her family members. Rose Miller recalled that as a child, she would go into the sandhills and fetch water from a well with a bucket to bring back to the old tin house where they stayed (southwest of the place where the Court was sitting). She said she had been told by her mother and grandfather that the well had been dug out by Mickey Free Lawrie, and that he had also planted a fig tree there that he had brought from Koonalda Cave (about 50 km east of Eucla). She also described gathering sea grapes and sap from the sea grape tree (darl).

716    At Munama, Rose Miller confirmed that she had lived in a house near the beachfront at Fowlers Bay when she was about four years old. She said that she had swum there when returning as an older child when living at Kimba, and confirmed that the distance between Kimba and Fowlers Bay was approximately 700 km. In relation to Munama (Mexican Hat), she said that she had never been down to the beach where the large waves were rolling in and had never climbed onto Mexican Hat itself.

717    She then described an incident where she had become caught in a current at Fowlers Bay. She said that when taken out by the current she had heard music and clapping sticks which she believed were her ancestors saving her. She said that when Mirning people got together to sing it reminded her of the sounds she had heard in the water. She continued (at [18]):

My people are connected to the sea and are born with that connection with the whales. This can be seen all along our coast in the big Mirning places, like the Whale Tail. I was also taught about the small places in our country that show this, like the bumpy sandhills on the edge of the coast, which are the barnacles of the whale. There are no other barnacles out of our country. Sharp little hills that look like barnacles.  …

718    At Adelaide, Rose Miller confirmed that she presently lives in the northern suburbs of Adelaide, and described her trips to Duck Pond as “short holidays”.

719    Her understanding, based on what she had been told by Albert (Bulla) Lawrie, was that Mirning country went as far east as Streaky Bay, because that is where Mickey Free Lawrie travelled. When asked how it was that Mirning country extended a distance of 1143 km she repeated that it was based on Mickey Free Lawrie’s travels. She said she had personally travelled across the Nullarbor about five times but had never gone down to Merdayerra Sandpatch.

720    Rose Miller said her father was a Kokatha man. When asked where he got that identity from, she said “I don’t know but he told us many a time growing up in Kimba that he is a Kokatha man”. She described her mother (Dorcas Miller) as a “pure Mirning woman”. When asked how she got to be Mirning, she said that she was told she was Mirning by her mother and that she naturally followed her. She acknowledged others were Mirning because they followed their father.

721    When asked what “Aboriginal group” some of her relatives were from she said that she did not know in respect of an uncle and cousin, but she had been told that another cousin was Wirangu. When asked whether her father was Kokatha “through his mum or his dad”, she said that she did not know. When asked which way she identified, she said “pure Mirning”.

722    She said that she did not understand that she was Mirning until she was about 10, when she first understood there was a difference between a Mirning person and Kokatha person. She recalled her father telling her things in language, but said that she did not listen because she was so young. She could not say what languages he spoke, but remembered her mother speaking Mirning and telling her about whales. She confirmed that she had hunted at Kimba but did not do it anymore. She also said that her father had not told her where Kokatha country was.

723    Rose Miller said that she did not want to consent to the FWC Land Determination because “we wanted Mirning people speak for Mirning land”. She said that when the determination was made “it seemed like that we can’t speak for Mirning anymore” and “it just felt like we lost Mirning land rights”.

724    In cross-examination, Counsel for the applicant referred to the rules of the FWC Aboriginal Corporation which provided for Mirning people to speak for a “Mirning area”. She confirmed that her mother was consulted under the FWC Aboriginal Corporation’s rules about native title decisions.

725    Rose Miller said that the Mirning Council of Elders met about once a month and took no minutes. She said that Mirning country was discussed at the meetings. When asked whether they talked about the Nullarbor National Park she said “no”. When asked whether they talked about the protection of sites she said “[n]o, I can’t remember”. She testified that they mostly discussed this proceeding, and could not remember whether there were other things discussed.

726    Rose Miller said that Robert Lawrie had chosen not to remain as a member of the Mirning Council of Elders because he was supporting Michael Laing’s position in this proceeding. She said that she had supported Michael Laing about five years ago but had since changed her mind. She described Michael Laing as being from “the Western Australia side” near Mundrabilla and said that he could not speak for the Sea Claim Area. She later said that the difference between Tjabilja and Michael Laing’s ancestors is that Tjabilja was born in South Australia. She then acknowledged she did not know where Eucla was and did not know where Tjabilja was born.

727    When asked about the Seven Sisters, Rose Miller could say little about the story other than to say that they travelled west. To unhelpfully leading questions she responded as follows:

MS JOWETT:        And then they go somewhere else after they leave Mirning country?

ROSE MILLER:    Yep.

MS JOWETT:        And they’re making country as they go along, aren’t they?

ROSE MILLER:    I can’t answer that, but they do after.

MS JOWETT:        Well, did they make anything in Mirning country?

ROSE MILLER:    No.

MS JOWETT:        Nothing with the whale?

ROSE MILLER:    Yeah, a lot with the whales.

MS JOWETT:        Did the Seven Sisters make things in country with the whale?

ROSE MILLER:    Seven Sister and Jeedara the whale. Yeah, they travel together.

MS JOWETT:        So as they were travelling, were they creating things?

ROSE MILLER:    Yes.

728    In relation to Jeedara, the questioning went as follows:

MS JOWETT:        And that Dhooghoor, you just said it means the same as tjukurpa; it’s just a different language.

ROSE MILLER:    Yes, Dhooghoor it’s that, Mirning Dreamtime Story.

MS JOWETT:        So that Dreamtime Story – and I’ll give you an example Jeedara the Whale – that Story creates the land and the sea, doesn’t it, in Mirning country?

ROSE MILLER:    Yes, it does.

MS JOWETT:        And Jeedara comes from the land into the water, doesn’t he?

ROSE MILLER:    Yes, it does.

MS JOWETT:        And he turns from being a Snake into a Whale when he enters the water.

ROSE MILLER:    No.

MS JOWETT:        Well, can you explain to her Honour what happens with Jeedara?

ROSE MILLER:    I don’t know the full Story of it but I know the Whale Tail at Clare Bay, that’s Jeedara that went into the cliff, and the Seven Sister try to get him out, but, like I said, I don’t know the full Story.

MS JOWETT:        But it travels all along the coast, doesn’t it?

ROSE MILLER:    Yes, right along the coast.

MS JOWETT:        And does it travel in the land and the water?

ROSE MILLER:    Yes.

729    Rose Miller went on to say that Jeedara travelled along the coast creating blowholes. She denied that Jeedara came from the north and said she knew of no other Dhoogoor story from the north.

730    Rose Miller responded “yes” to a series of leading questions about Mirning traditional laws and customs, including that food was to be shared among family members, that Mirning country could not be sold, and that knowledge was to be passed to younger generations. She also said that her grandfather and mother had taught her a whale dance when she was about 19 years old.

731    Rose Miller confirmed that there were shared words between the Mirning and Wirangu languages. She also agreed that she felt that Mirning people had been subsumed into a broader group and that they had lost their voice along the South Australian area of Mirning country.

732    She denied knowledge of Kokatha people coming to the coast in summer time to fish and camp, and of neighbouring groups getting together with Mirning people for ceremony or trade.

733    When questioned about her affidavit evidence that there were “several places along the cliffs that we access the sea from” she confirmed that she was referring to the beach area at Head of the Bight but admitted she had not personally walked down any of the cliff faces or rocky outcrops there.

Meegan Carmel Sparrow

734    In her affidavit, Meegan Sparrow described herself as a Mirning elder, a member of the Mirning Council of Elders, and a traditional owner of the waters in the Sea Claim Area.

735    She said that her earliest memories were from Koonibba Mission and Duck Pond where she lived before moving to Kimba when aged about three or four years. She said that while living at Kimba there were “tribal visitors” where “tribal business” happened, drawing her father and grandfather away for long periods of time.

736    In both her affidavit and oral evidence, Meegan Sparrow recalled seeing traditional markings on her grandfather’s chest. She said she did not ask about them because they were men’s business, and added that she did not enter men’s places such as Koonalda Cave and “some other Mirning caves”.

737    In her affidavit, Meegan Sparrow described Mirning country as the country of small trees. She said that the Mirning language was important for Mirning identity and it was not part of the Western Desert dialect. She was concerned that others were taking words from the Mirning language and cultural practice without permission, and she now teaches the younger generation culture and “the Mirning way”.

738    On the extent of Mirning country, she said:

19.    I have had significant dreams about being deep down in the Mirning sea with the whales. This is spiritual and our connection with our whales. I will not write any more about this. I know this is our country not just spiritually, also by what I have been told by my Elders.

20.    I remember in my young days Mirning country being between Ceduna and Eucla as being our country. As I got older, I started to learn how vast our country is from Point Culver to Streaky Bay. Mother told me about Wallala Rock being our eastern boundary and that made sense for the feeling of home that I always have from Wirrulla.

21.    When standing looking out to sea, Mother would say ‘As far as your eye can see, this is all Mirning country.’ She would say that ‘This is the opening into the Galaxy.’

22.    The stars and the sea are very important for Mirning dreaming and this is where our laws and culture some from.

739    Meegan Sparrow asserted that Mirning people were a separate society and the only traditional owners of Mirning sea country, and it was part of Mirning culture to stand up and protect it. She said she had been learning Mirning culture, heritage and stories her whole life, and that elders who have now passed away had always said that “only Mirning stories are on Mirning Sea”. She did not retell those stories in her affidavit.

740    She said that Mirning people had never been part of the Western Desert culture, adding that the traditional lands of Western Desert people were a long way from the sea and that “[t]hey come from way up north above the Transcontinental Railway Line”.

741    Meegan Sparrow gave oral evidence at Duck Pond and Adelaide.

742    At Duck Pond, she gave similar evidence to that of her sister Rose Miller about family holidays. She said she stopped going there in her late twenties once the community of Yarilena was established and separate plots were allocated. She had not been there since 1999 or 2000.

743    Under cross-examination by the State, Meegan Sparrow was challenged on her affidavit evidence that she had lived along the coast and swum in the sea all of her life. After some hesitation she accepted that was not true, and the accurate position was that she had lived and swum along sea country when she lived at Duck Pond as a small child and visited there on holidays, and when she had returned to Ceduna and other places intermittently later in her life, either for holidays or to see family.

744    Meegan Sparrow said that she had been told by her mother that Mirning country went from Point Culver to Streaky Bay. She said her mother had not explained to her why Mirning country runs that far. She acknowledged she was in no position to agree or disagree with a proposition that before European settlement Mirning country ended at the eastern end of Merdayerra Sandpatch. She said that when she had travelled along the Nullarbor in the 1980’s no significant sites had been pointed out to her. When asked how Mirning country extended into the sea as far as the eye could see, she could not answer, and said no one had ever told her why it runs that far seaward.

745    Meegan Sparrow said that her grandmother Lena Miller was Mirning, but then became Kokatha because she married a Kokatha man. She said it was, at that time, a rule to take your husband’s identity, but confirmed she had not taken the identity of her husband. At Adelaide, Meegan Sparrow said she had not been told by her father how he got to be Kokatha, nor had her mother told her how you got to be Mirning until she was in her early teens. When asked whether her grandmother, Belinda Lawrie, had rights to country near Decres Bay because she was born there, she said that she did not know and had not been told where her grandmother was born or where she grew up. She then denied that Belinda Lawrie had rights to speak for that country by reason of her birth there, adding “you don’t have rights unless you’ve got the bloodline”.

746    Meegan Sparrow said that non-Mirning Aboriginal people could camp, hunt and fish on Mirning country without asking permission, including at the Jeedara site at Clare Bay. However, she clarified that permission from male Mirning elders would be required to take ochre from a place on Mirning country because that was related to men’s business.

747    She said she had never been taught any Mirning dances or songs, nor had she been painted.

748    Meegan Sparrow described the tribal men who would come to her family home at night as dangerous and scary, although she had only seen one or two of them at Kimba and Duck Pond. She could not say whether they came from the north, nor where they were going.

749    Meegan Sparrow acknowledged that there are a number of Mirning words that are common with the Kokatha and Wirangu languages, and repeated her allegation that some words had been taken by the other groups without permission. When asked to give examples of stolen words she could not do so.

750    Like her sister, Meegan Sparrow denied that Michael Laing had native title rights in the Sea Claim Area because his ancestors were from Mundrabilla in Western Australia. However she did not know what rights Michael Laing held in Western Australia, nor could she say where the eastern extent of his country ended.

751    She said that she knew nothing about an arrangement for the co-management of the Nullarbor National Park by Mirning people and park authorities.

752    Meegan Sparrow claimed that the MESL Claim (in which she was an applicant) had extended to align with Wallala Rock in the east. She denied that Wallala Rock was in Wirangu country and said she had been told by her mother it was Mirning.

753    Meegan Sparrow said she had first learned the Jeedara myth in her twenties, and agreed it is a story that explains the creation of the Bunda Cliffs. There was then this exchange:

MR AMBROSE:    When Jeedara comes onto the land, does Jeedara turn into a Snake?

MEEGAN SPARROW:    There is a Serpent in the Dreaming, yes.

MR AMBROSE:    Is that Serpent – is that Jeedara, or is it another person?

MEEGAN SPARROW:    I couldn’t tell you.

754    She later confirmed that Jeedara travelled “just along the Australian Bight” but did not refer to Clare Bay.

755    When asked about her concern that other groups were using the Jeedara story she could not name any particular person. When asked who had told her that was occurring, she said “[n]o one specific”. She could provide no examples of Wirangu people publishing the story anywhere and acknowledged she had never heard any Wirangu person tell the Jeedara story herself.

756    When questioned about why she considered the stars to be important to Mirning Dreaming and whether she knew stories about the stars, Meegan Sparrow said that she may have forgotten the stories. She did not know whether it was correct that Venus was a star that would direct you back to Eucla, the home of Mirning country.

Lloyd Larking

757    In his affidavit, Lloyd Larking said his mother raised him the Mirning way with all of the traditions, customs and laws she had learned from her father and other Mirning elders. He said he had been taught by his uncles how to fish, as well as the Mirning names for all of the fish and seafood. He said he was taught how Mirning people hunted and gathered fish with gagji ngaldarra, spears with barbs made of kangaroo bone, flint, stingray and “porky pine quills”.

758    Lloyd Larking is a grandson of Mickey Free Lawrie and a great-grandson of Tjabilja. He described Mickey Free Lawrie as “our Mirning whale songman and mabarn bai medicine man”. He said that “[f]rom Tabilja and Micky Free we have our whale totem, which is very special and sacred”.

759    Lloyd Larking asserted that Mirning country went from Clare Bay (east) to beyond Point Culver (west). He gave evidence that his uncles (Bill Lawrie and Bulla Lawrie) told him the stories of Jeedara “who came from the stars as a man and as our great ancestral white whale”. He stated that Jeedara’s journey is seen in the sea and the land. He said he was also told the stories of “Muban Gailga Burdy the magic whale, the maker of the yerrambai rainbow”. He said “[w]e are the guardians of the whale dreaming law”. He stated that he had joined the filming of Whale Dreamers and a “great ceremony” at the Head of the Bight.

760    Lloyd Larking said that Mirning ancestors lived as small clans that together formed one strong Mirning nation. He explained that no one could come onto Mirning land or sea without getting permission from the elders, and that that law was very strict. He claimed he had heard of people being killed for coming onto Mirning country without permission.

761    Lloyd Larking said that he had been told by the elders that Mirning country extended into areas where the seabed was once land, including “where the Mirning ochre is, now in the sea out from the Head of the Bight”. He said that his ancestors would walk out collecting ochre from there, hunting on that land and collecting shellfish. He asserted that he had heard that when the sea level started to rise the “Mirning still went out in kobada yurlu canoe and this continues with modern boats”.

762    Lloyd Larking said he greatly respected his family and elders, that he grew up with Mirning families and that they kept their culture strong.

763    Lloyd Larking asserted that desert people and those who followed desert law had “no place in our sea country”. He said that his elders never gave them permission to apply for native title and that he did not believe that they would “protect our whale totem and respect whale law”.

764    In his oral evidence, Lloyd Larking said that he was born in Wuddina and lived in Port Lincoln all of his life. He said his father was born at Fowlers Bay and identified as Mirning. He claimed that Mirning descent came from his father’s mother Rose Stott. He did not know the descendancy of his paternal grandfather.

765    Lloyd Larking confirmed that “Mirning ochre” could be found around Head of the Bight and that it would be collected along the beach and in the immediate sand dunes. He said he had not collected ochre since he was a child.

766    When asked to give details of the Mirning ceremonies he had attended, Lloyd Larking referred to a “Whale Dreaming” ceremony involving people from all over the world. When asked whether that was the only ceremony he had attended he said he had been to a few with his sister Iris Burgoyne. When asked what they were he said “I’ve never been to ceremonies” involving dancing corroborees “and so forth like that”. He said that the first time he had seen a whale dance was one led by the Yolngu as part of the Whale Dreaming gathering at Head of the Bight. He confirmed he had not been involved in any other whale-related ceremony since then. He later said that the “ceremonies” he referred to in his affidavit were family gatherings.

767    When asked what he meant by the phrase “whale law” in his affidavit, he said that he did not know much about it but that the big whale embedded into the rocks was one of the most beautiful sights he had seen.

768    When asked about the “Muban Gailga Burdy” story involving a whale referred to in his affidavit, he said he could not recollect it, but said it was the Jeedara story. He explained that the rainbow referred to in his affidavit went from Head of the Bight to Eucla and said he had been told about it by Bunna Lawrie and Iris Burgoyne. He later claimed that the words Muban Gailga Burdy were not familiar to him. The cross-examination continued:

MS JOWETT:        And so how did those words:

… Muban Gailga Burdy –

get put into this affidavit if you don’t know what they mean?

LLOYD LARKING:    I’m sorry but I just can’t – can’t get – the only – that words – I – maybe if I – thing is – like, you talk about it but I just – I – whatsaname - - -

MS JOWETT:        So maybe you didn’t say those words.

LLOYD LARKING:    Yes.

MS JOWETT:        Would you have told that to the person who wrote this for you?

LLOYD LARKING:    Yes, they – no, I wouldn’t have told them. They – it was just – just come out – book – out of the books.

MS JOWETT:        Oh, I see. So it’s come out of a book.

LLOYD LARKING:    Mm.

MS JOWETT:        And that’s the same with that:

… yerrambai rainbow –

word that’s at the end of that paragraph 6?

LLOYD LARKING:    Alright.

MS JOWETT:        Can you have a look at it, just – just want to check it out.

LLOYD LARKING:    

… maker of the yerrambai –

yes –

    rainbow.

Yes

MS JOWETT:        So that’s not a word you would’ve used, either, is it?

LLOYD LARKING:    No, I wouldn’t use none of these words.

MS JOWETT:        And you use another word in paragraph 13 – two words. Right at the end of paragraph 13 you say that – I’ll read it out to you:

I went to the meetings and mediations still the Far West Coast Aboriginal Corporation and desert people disrespected [sic] us Mirning elders and brother Bunna Lawrie, who is our Mirning Whale song man and mabarn bai medicine man.

Can you tell her Honour what ‘mabarn bai’ means?

LLOYD LARKING:    Sorry, I wouldn’t have the faintest. rainbow.

MS JOWETT:        Is that another set of words that - - -

LLOYD LARKING:    Well, that’s a word that I’ve never – I’ve never heard, but that is – that is what you call it – like, when he – when he’s – he’s been initiated, see, my brother, Rupert Bunna, and that’s their – their wording and so forth.

MS JOWETT:        Oh, so that’s their wording. That’s not your wording.

LLOYD LARKING:    No, that’s the - - -

MS JOWETT:        You wouldn’t use that wording.

LLOYD LARKING:    I wouldn’t have the faintest what that meant.

MS JOWETT:        And so you don’t know what it means.

LLOYD LARKING:    No.

769    Lloyd Larking said he wanted to protect Mirning sea country from oil drilling out in the Bight and from other developments.

Cecelia Coaby

770    Cecelia Coaby grew up in Koonibba for about 13 years before going to a girls home in Adelaide, but she later returned to living with her parents who by then had moved to Adelaide. She said that her mother later moved back to Koonibba. She said that her mother never stopped speaking about Mirning culture and that her brother Bunna Lawrie listened to it all and remembered it. She said that she did not remember much of what she was told.

771    Cecelia Coaby said her mother always told her that Mickey Free Lawrie stood at the rockhole at Koonibba and said that he would make a home for his family there, and that that was the first time he met the German Lutherans. She said she was told that Mickey Free Lawrie’s people were sea people and that they had to be near the whales. She said that in the winter months they lived inland too where they had fires and camps.

772    She said that she was told by her mother about senior Aboriginal men coming to speak to her grandfather in language, describing them as “real ugly … tribal, all painted up with the bone in the nose”. She said she was also told that Mickey Free Lawrie and his wife Florence were travelling in his country when their baby boy Rupert died somewhere between Nundroo and Yalata, and that Mickey Free Lawrie had dug a grave and danced a Mirning dance around the grave. She continued (at [23]):

Around the early 1990s I went to find the grave. When I found the spot, I was drawn straight to it, and I had this incredible feeling of connection to both him and the country around it. It was special that this was where my grandfather had buried his son on his country. I knew that my uncle had been put back in the country where he came from.

773    In cross-examination, Cecelia Coaby said that the tribal men who came to her home were Mickey Free Lawrie’s people, but said her mother did not tell her about them. She said she did not know anything about whale law, but her mother used to talk about it all the time, and that “Bunna’s more into it”. She did not recall her mother telling her that some men were senior whale law men, and said she had heard her mother and Bunna Lawrie talking about the Jeedara story. When asked whether Jeedara went anywhere near the stars in the story she said she did not know and that Bunna Lawrie might know more. She said the word “jally” meant nothing to her. She did not want to give evidence about Mirning people coming from whales because she did not know it properly.

774    When asked what her mother used to say about the Great Australian Bight and the whales, she responded “[t]he Bight is beautiful, she’d say to me. She says that the whales come in with their babies and that, and it was beautiful”, but could recall no further details. She said her mother told her Koonalda Cave was “like another world, beautiful, but it’s underground” but could recall no further details.

775    Cecelia Coaby said that her mother had learnt a lot from her father, and that Bunna Lawrie wanted to keep that going. She recalled that, when younger, Bunna Lawrie would listen to his mother and learn things, but his brother Willis Lawrie did not listen as much.

776    She understood Mirning country to go as far east as Streaky Bay, and said that she based that on what her mother had told her.

777    She said that the language spoken at Koonibba mission was “all mixed up, but everybody’s owning it”.

778    Cecelia Coaby said that she was on the Mirning Council of Elders which she said discussed native title issues. She said:

We talk about our Mirning dreaming, our whale and our family and that our ancestors that have gone before us and remembering them, the respect that they help us to grow up with, because that’s all lost nowadays. People don’t give a damn, they just all money hungry.

Constance Mundy

779    Constance Mundy was born in Ceduna and lived at Koonibba Mission until she was about 10 years old, then moved to Port Lincoln. In her affidavit, she described herself as a Mirning woman because she grew up close to her grandmother (Margaret Lawrie) who was a Mirning woman.

780    Constance Mundy described people from Koonibba Mission going fishing along the coast from Denial Bay to Fowlers Bay. She said that the “more tribal people” who came from the desert or Maralinga areas did not come down to fish.

781    Constance Mundy described gathering wild grapes, peaches and quandongs as well as shellfish when visiting the coast with her family. She claimed she was unable to learn more of the Mirning language and culture from elders as she was often placed with more distant relations by welfare officials. When asked if she could remember any traditional laws or customs she said all that the old people told her was to remember who you are and show respect to elders.

782    In cross-examination, Constance Mundy said she had not been told where Wirangu country was, nor had she been told who could speak for the areas around Ceduna, Fowlers Bay or Merdayerra Sandpatch. She described going down to Denial Bay from Koonibba when the weather was hot, fishing from the beach and rocks and swimming near the jetty. She recognised herself as Mirning and agreed that it was a choice which group one “followed”.

Heinz Burgoyne

783    In his affidavit, Heinz Burgoyne said that he grew up in Port Lincoln with his siblings and that as he got older he was told by his mother “what tribes had country where”. She told him that Mirning country started past Ceduna and headed west all the way to Israelite Bay in Western Australia. He said that inland Mirning country went as far as the Trans-Australian Railway Line. He asserted that Kokatha country was desert country to the north of Mirning country and the area around Ceduna and Streaky Bay was Wirangu country.

784    He explained that he did not know how far out to see Mirning country goes, “but it certainly includes the beaches and islands”.

785    He said that he knew some Mirning language from his mother and listed some English words translated into Mirning. He stated that his mother told him that Mirning people were “created from whales; they created the Mirning people”.

786    In oral evidence (given at Adelaide), Heinz Burgoyne said he had not been told that the right people to talk for country around Ceduna and Streaky Bay were Wirangu people. He asserted that all he knew was that the Mirning and Wirangu tribes were put together, all in the one area. He said that Kokatha people were not part of that intermixing. He agreed that around Ceduna and Streaky Bay was Wirangu country and further west from Head of the Bight was Mirning country. He said he was told by his mother that when it was one Aboriginal group’s country it means that under traditional laws and customs they should control that country, determine who goes there or fishes there. He explained that if something was to be built or dug up there it should not be done without their permission. He agreed that that applied for the Mirning in the west and the Wirangu in the east. He said Kokatha people were from further inland and had no sea country.

787    Heinz Burgoyne agreed that his mother Iris Burgoyne had written a book in 2000 in which she referred to herself as a Mirning and Kokatha woman and wrote about the whales.

Rosaleen Jenner

788    In her affidavit, Rosaleen Jenner said that her mother grew up as a Mirning person at the Koonibba Mission, learning and participating in Mirning activities, as did her uncle Bunna Lawrie. She said her mother had told her about living on Mirning country with family, collecting seafood and flint. She stated that her mother learned stories of “our sacred whale totem and how the sea is the home of our family the whale”. She mentioned that the word Mirning meant to listen, learn and understand more. She continued (at [6]):

My mother told me that her father, Micky Free, was the holder of the whale totem and that this is in our blood. We have a duty to protect the whales, as they are family. Mirning rights to the land and sea come through blood and I have inherited this and pass this on to my children.

789    She gave evidence that she learned traditional Mirning customs and stories from her mother, specifically about “[h]ow we are great sea people, our totem is the whale and our country the sea and the Nullarbor”. She referred to the story of Jeedara “the great white ancestor whale from the dhoogoorr dreamtime whose sacred places are in our land and sea”. She said her mother had shown her the journey of Jeedara along the coast, including “the whale tail at Clare Bay” which she described as a sacred place where whales returned each year.

790    Rosaleen Jenner referred to Mirning people as “distinct and unique” people who ate healthy seafood and observed traditions. In her oral evidence, she could not give specifics of what she meant by Mirning people being “distinct and unique”, other than to say that all of her relatives met this description and that was how she saw it. She said the elders held the laws and customs and named some of the respected elders. She asserted that she had passed her Mirning heritage to her children and grandchildren. She said (at [9]):

…  In Mirning law and custom, as the eldest grandchild of Mirning woman Olga Bertha Betts nee Lawrie, I have the right to pass on stories and traditions. We are whale people like my grandmother, her father Micky Free and Tabilja. Now my children carry this connection with the family of Jeedara.

791    As to the extent of sea country, Rosaleen Jenner explained that her elders had shown her that “our Mirning sea country” went from Clare Bay into Western Australia. She said that was the sea country of “Mirning whale law” that her elders controlled and protected. She claimed that she was told that Mirning law was strict about who could come onto “our sea country” and that non-Mirning people had to be granted permission by Mirning elders to do so. She added (at [10]):

…  I have never heard of Kokatha people out in our sea country, this is not the sea country of desert people, they … do not have traditional rights here.

792    In her oral evidence (given at Adelaide), Rosaleen Jenner said she had lived in far north Queensland for the past 42 years (since her late twenties). She said she had visited the far west coast to meet members of her family. She had done this about three times in the last 10 years. She said “I went to Clare Bay many years ago if that’s where Streaky Bay is”, as well as to Fowlers Bay. She said that she could not remember if she went to a place called Merdayerra Sandpatch. She said her trip to Fowlers Bay was a heritage trip and that she wanted to know the Mirning culture and where the whales were. She expressed disappointment about not having seen a whale because she had been told that the whale was the totem for the Mirning people. She repeated that she always thought Clare Bay was at Streaky Bay and was uncertain whether she had gone there.

793    Rosaleen Jenner said that she had “always known” about the rule that non-Mirning people including her grandmother’s husband (a Kokatha man) needed permission to come on to Mirning country. She claimed she had never seen Kokatha people asking for permission, nor had she seen Mirning people asking for permission to go on to Wirangu or Kokatha country.

794    Rosaleen Jenner said that she remembered her mother telling her about collecting flint. When asked where the flint was from she said “I guess it came from Streaky Bay. In my mind I got Streaky Bay but it could be Fowler’s Bay or the other one, Clare Bay”.

795    When asked in cross-examination to tell the Jeedara story, she said:

I just know that the whale is special and that there are someone who can actually tell the dreaming when they see the whale. To me it’s just magic, magic thing. I find it magic.

796    She said she did not know a story about Jeedara coming onto the land or creating the cliffs.

797    Rosaleen Jenner explained her understanding of a totem in the following way:

The totem to me is what represents the people. It’s a – yeah is a symbol of the whale. It’s the totem, it’s what represents the Jeedara. Yeah, I don’t know if I can explain it any better than that except that it’s magic.

Yirgjhilya-Mary Lawrie

798    Yirgjhilya-Mary Lawrie is a daughter of Bunna Lawrie.

799    Yirgjhilya-Mary Lawrie deposed that she was born in Ceduna and grew up with her siblings on the Koonibba Mission where she was immersed in culture and the Mirning language, handed down to her father by his mother. She said that her name meant Morning and Evening Star, or the star Venus. She said her name connected her to the Dreamtime and creation stories passed down through generations, and said she took her other name from her great-great-grandmother Tjabilja.

800    Yirgjhilya-Mary Lawrie said that she was a singer and songwriter now based in Melbourne, where she wrote and performed songs in the Mirning language with her father’s assistance. She said that she had showcased Mirning heritage on a national platform after being crowned Miss NAIDOC 2019 Victoria, and through teaching her colleagues at the University of Melbourne about Mirning history. She said that her father had handed down and taught her the language, dances, traditional songs (that she currently sings), elders’ wisdom and her identity.

801    Annexed to Yirgjhilya-Mary Lawrie’s affidavit were photographs of her in 2018 and 2019 with captions relating to her song and dance performances. A further annexure contained the lyrics to a song in Mirning language.

802    In her oral evidence, Yirgjhilya-Mary Lawrie said she had lived at Koonibba when she was around four years old. She said that her father kept her up to date with the “native title fight” and what her responsibilities were in relation to it. She testified that she knew that Mirning, Wirangu and Kokatha people held native title over an area on the land between the State Border and Streaky Bay, but claimed there should be a special area for Mirning people in the lands that were ancestrally sacred to them. She said that area ran west from Ceduna to just over the State Border. She said she was born on Mirning country in Ceduna, and said that to the east of that was Wirangu country.

803    Yirgjhilya-Mary Lawrie said it was okay for her to say that she was both Mirning and Wuthathi (her mother’s group) and said she was not breaking any Mirning rule by doing that.

804    She said she had been taught Mirning dances and songs by her father, and not by anybody else. She asserted that some of the songs were written by Bunna Lawrie himself and others had been taught to him by his mother.

805    Yirgjhilya-Mary Lawrie explained that the lyrics to one of the songs she had written had been translated into Mirning by her father. She also confirmed that her father had written two songs when he was in a band “Coloured Stones”, one named “Chasing Rainbows” and the other named “Michael William Lawrie”. Recordings of each of the songs were admitted into evidence. She said she had little to do with a number of Mirning elders named to her, and that there were no other Mirning elders she had much to do with aside from her father.

Arruna-Thutha Lawrie

806    Arruna-Thutha Lawrie is a son of Bunna Lawrie. He described an early memory of his father hunting kangaroo and fishing at Koonibba. He said that he occasionally travelled to Port Lincoln to visit family or to the Nullarbor to fish and watch whales.

807    In his affidavit, Arruna-Thutha Lawrie said that he visited places along the coast such as Davenport Creek, Denial Bay, Clare Bay, Fowlers Bay, Head of the Bight and Merdayerra Sandpatch. He said that he learned that his name was a Mirning word meaning “light copper coloured skin”. He said that, from an early age, Bunna Lawrie taught him “the basics of Aboriginal culture” and took every opportunity to involve him in cultural activities. He testified that in the past few years he had taught his sister Yirgjhilya through the performance of dances. He described these dances as telling the story of Jeedara the white whale, which he said was the Mirning interpretation of how the land and seas were created and are “family to us Mirning”.

808    As to the dance performances, Arruna-Thutha Lawrie said (at [7]):

Every time we prepared and rehearsed for each performance Dad would sit us down and go into detail about the overall performance. These topics would range from the stories we were telling through the dance, the meanings and symbolisms of the body paint as well as old wood crafting techniques used for the war clubs, boomerangs and spears during the performance for the Mirning ceremony dances.

809    In cross-examination, Arruna-Thutha Lawrie said that he was born in Townsville, lived in Koonibba as a young child and currently lives in Brisbane. His mother is Wuthathi (from Cape York). He testified that he had not been back to Koonibba since the year 2000. He did not know what Wirangu was, nor had he heard of the group Kokatha.

810    Arruna-Thutha Lawrie could not say how he came to be a member of the FWC Aboriginal Corporation. He was not aware of the FWC Land Determination. When asked whether anyone had explained to him that as a descendant of Tjabilja and Mickey Free Lawrie he could join the FWC Aboriginal Corporation, he said “I’m afraid there’s not much that was explained to me in terms of those lands stuff”. When asked a question about the native title holders in the area, he said “I don’t know the specifics”.

811    Arruna-Thutha Lawrie said he knew his father had “been through some initiation” and “been through a ceremony”, but said his father had not reached the point of telling him those things. He was aware that his father had participated in the film Whale Dreamers, but could not give specifics about it.

812    When asked what he meant by “basics of Aboriginal culture” in his affidavit, he said that it involved respecting other people and behaving yourself. When asked whether his father had told him the Jeedara story he said “I’m sure he explained it to me at some point but it’s escaping me at the moment”. He did not believe he had been taught the meaning of the words “mabarn bai”, and did not know that his father says that he is a mabarn bai.

813    Arruna-Thutha Lawrie confirmed that the photographs annexed to his affidavit showed his body painted by his father. He recalled that his father had told him that the markings on his arms and face signified seniority. He said he would not call himself a senior Mirning man.

814    He said that he claimed ancestry from both his mother and father and that no one in his family had told him that’s not right.

Jason Scott

815    Jason Scott is a son of Bunna Lawrie.

816    In his affidavit, Jason Scott said that when he was a child his father and other Mirning people told him “the whale dreaming stories of how us Mirning and the whales are the children of Jeedara and the Seven Sisters”. He said that “[w]hales are our totem and family” and that he shared those stories with his children. He said that he had been taught by his father to listen, learn and understand (reflecting the meaning of the word Mirning) and that it was in their nature and tradition to be friendly and caring people (goonminyera). He said (at [4]):

Growing up Dad taught me about the Mirning country and culture and lots of music and song and dance. We are now passing this to my son, Jundal. In Mirning language jundal means summer and summer time. He is learning to play traditional instruments like yardiga (digeridoo) and he has been watching Dad play the bundawatha (gong stones). He has also been learning to dance the Mirning whale dance. Passing on our culture to the next generation is very important for us.

817    Jason Scott said that Mirning were coastal people and that growing up as a Mirning boy and man he was often at the sea singing to the whales, fishing and gathering seafood. He said that his father taught him places where his ancestors had used fish traps. He continued (at [8]):

I have performed singing in Mirning language with my Dad and the Jeedara whale song and dance. Dad always explains the Mirning culture and tradition before we perform. I am happy that my children are also learning and enjoying learning Mirning tradition and connecting with our culture, country and whale totem. This was once our ancestors’ duty and responsibility and country.  …

818    A photograph annexed to his affidavit showed Jason Scott and his son learning the “traditional Mirning Jeedara whale dance and music with my father Bunna Lawrie with digeridoo and whale gong stone”.

819    In his oral evidence Jason Scott said that his mother, Jenny Scott, is a Mirning woman through her parents Wallace and Alice Scott. The father of Wallace Scott is Jimmy Scott (whose mother Maggie is an apical ancestor for the purposes of this proceeding).

820    Jason Scott told the Court that he had lived away from the far west coast, but had always gone back home and spent a lot of time on country. He said that he had learned from elders, naming members of the Scott family and Aboriginal people from the Scotdesco community and elsewhere. He testified that when he was young, he did not see much of his father because “he was often off performing around”.

821    Jason Scott said that when he was growing up he had heard stories about Kokatha people intermixing with other groups, including for the purposes of trade. He said he had heard that Wirangu and Mirning were coastal tribes and that the Kokatha people are from the desert area. He described the Mirning area as going into Western Australia almost as far as Esperance and extending eastward past Elliston. He was not sure where Wirangu country went.

822    He said that he had first seen whales along the far west coast in the late 1980’s with his father at Head of the Bight and Merdayerra Sandpatch. He said he had been back to places in the area about 15 times since then, on each occasion with his father. He said they would sing the same song each time. He confirmed that the only person accompanying him on those occasions was his father.

823    Jason Scott reiterated that the whale was a totem for the whole of the Mirning tribe. When asked what the significance of the whale tail location at Clare Bay was, he said he was unsure. He also said that nobody had ever told him where the boundary was between Mirning and Wirangu coastal country.

824    Jason Scott referred to a picture annexed to his affidavit of his son learning to play the didgeridoo during a performance at Glenelg, directed towards saving the Bight. He said that he and Bunna Lawrie had taught his son to play the didgeridoo. He acknowledged that the didgeridoo originated in Arnhem Land, but said that Mirning people had a shortened version of it. He said that his father had told him about the yariga but he had not heard other Mirning people mention it.

825    It was put to Jason Scott that the gong stones referred to in his affidavit were not a traditional Aboriginal instrument, but in fact originated from Africa. He said that he had been told that the gong stone was a traditional Aboriginal instrument by his father.

Melville McNamara

826    Melville McNamara said that he grew up around Bulla Lawrie, who was the grandfather of Rose Miller (the mother of two of his children). He claimed he lived with Bulla Lawrie for two years in the 1970’s. He said that when he was younger he had been told that the sea belonged to the Mirning people, and that no one had told him it belonged to anyone else. He asserted that he had been told that the Wirangu people came from further north. He said other Aboriginal people came down to the coast “but only after whitefellas had come to the country”.

827    Melville McNamara said that when he was about 20, he was told by his uncle that Mirning country went from Streaky Bay westward, and that east of Streaky Bay and Wirrula was Barngarla country.

828    In his oral evidence, Melville McNamara said that when he was about 10 or 15 years old he met Bulla Lawrie when working on the railways near Kimba. He was not able to say where it was that Bulla Lawrie went through law, other than that he was initiated once in Western Australia and once in South Australia. He said that Bulla Lawrie never told him anything about whale songs or performed whale songs or dances.

829    Melville McNamara said he had worked at Yalata Roadhouse and lived at Smoky Bay. He was not sure where Wirangu country was but thought it may be near Ceduna. He said that permission was required for a Barngarla person to go onto Kokatha country. He gave evidence that there was an area of Mirning country bordering Barngarla country that was manned by a person named Benny Faulkner who made sure people had permission to go further.

Kaylene Fowler

830    Kaylene Fowler was incapacitated at the time of the trial. Her affidavit was read pursuant to s 63 of the Evidence Act.

831    Kaylene Fowler said that her mother was a Wirangu woman who “mixed with all tribal kids at Koonibba”, and that her mother accepted Mirning ways when she married her father. She said that her father was a well known Mirning man who could understand a lot of the languages spoken at Koonibba, and who would sometimes act as an interpreter for the police. She said that her grandmother was a Wirangu woman, as far as she knew.

832    Kaylene Fowler said that she was born in Koonibba in 1947 and mostly grew up there, before leaving home at 16 years of age to live and work around Australia. She said that she spent a lot of time down near the coast when growing up, going as far west as the State Border as well as travelling to the eastern states. She said that when travelling with family they would fish, hunt, make damper, and cook kangaroo, wombats and lizards.

833    Kaylene Fowler said that from a very young age she was taught “whose country we were visiting”. She said that around Fowlers Bay “there were only Mirning People. No Yalata people or desert people, although there were a lot of people from the desert areas – northern areas – living at Koonibba at the time”.

834    Kaylene Fowler described Mirning country as going west past the State Border and said that in the east it “might continue down as far as Venus Bay”. As to the Sea Claim Area, she said (at [23]):

I wasn’t taught how far out to sea Mirning country goes. I think it goes a long way.

835    Kaylene Fowler described fishing and gathering activities, but was not specific about where some of those activities occurred. She said that she spent time around Bookabie with her uncles and aunties. She knew her aunties as Wirangu women who were deadly story tellers, and said they could tell you where to go on country and where Mirning land was. She said her aunties would tell the girls about corrobborees, what to do and not do, and what they could see and not see. She testified that when there was men’s business they were not allowed to go out of the house, but when there was women’s business they would sneak down to the fire and hide in the shadows “[b]ut the old people knew that we were there”.

Max Harrison

836    Max Harrison was deceased at the time of the trial. His affidavit sworn 8 April 2021 was read pursuant to s 63 of the Evidence Act. He is a member of the Yuin Nation on the south coast of New South Wales. He said that the totem of the Yuin Nation was the whale (Guriwal) and that his task was to look after Guriwal and to teach and raise awareness of his journey. He said that Guriwal’s journey extends southwest around to the Great Australian Bight where it is known in Mirning language as Jeedara. From there it extends north to the Kimberley region of Western Australia. Max Harrison listed the “main whale tribes around Australia” and said the Yuin people recognise the Mirning as “Whale People”.

837    Max Harrison explained that he first met Bunna Lawrie in the 1970’s. He said they had met at least nine times for traditional purposes and ceremony. His affidavit asserted the respect he had for Bunna Lawrie as a man of knowledge and emphasised the importance of their continuing connection to “the whale ceremony and lore”.

Robert Lawrie

838    In his affidavit, Robert Lawrie claimed that his father (William Lawrie) taught him some things about ceremony that he said was “very much connected with the stars and the sea”, adding that he was happy to talk about it confidentially “amongst [his] fellow Mirning people”.

839    He described his father as a quiet fellow who knew and showed him Mirning dances. Robert Lawrie claimed he had “done a whale dance”. He said that he had been taught Mirning laws by his father and grandfather. His father taught him that Mirning law was strict and that only Mirning people could come onto Mirning land and sea areas without permission because there were winaitchi (special sacred places) where only Mirning could go. He explained that there were special Mirning ways of doing things, “even how to cut the kangaroo after it is cooked”, and these laws and customs were distinct to Mirning country. He described watching his uncle hunting for penguin on the cliffs at Head of the Bight and cooking it in the traditional way in the coals covered with branches. He said that the wilgjie (fat) was used as medicine and oil.

840    Robert Lawrie said that his father used to go to the Nullarbor collecting rabbits and kangaroos, and would go to Euria rockhole, a Mirning water place, to rest. He claimed he was taken to important Mirning rockholes such as Euria and Wallala by his grandfathers and uncles. He said that there was “a very sacred men’s site” at Koonalda. He described Murphy’s Haystacks as another important Mirning place that he had been to. He continued (at [11]):

For the sea, my father pointed out to the horizon and he told me that further than you can see is Mirning country. He told me how this used to be our Mirning land country before the sea level rise. He told me this several times and one special time when we went down to the rocks near Head of the Bight. He marked his name in the rocks there.

841    Robert Lawrie described travelling with his family all over Mirning country, including to the Head of the Bight where they would dig down for fresh water. He said he was taught Mirning laws by Mickey Free Lawrie and uncle Jimmy Scott, including things about the sea and how to cook wombat the Mirning way. He asserted that wombat could be eaten by Mirning people because it was not a totem but whale and stingray could not be.

842    He stated that he had worked for 36 years as a sheep shearer and that he had always visited “sacred whale sites” and cleaned out waterholes and rockholes. He said that as a child he knew Mirning names for sea animals and could remember a few, such as djulea for penguin, Jeedara for great whale and many fish names. He continued (at [28]):

There are Mirning fishing songs from my grandfather and ancestors. Brother Bunna Lawrie still sings these. I heard my grandfather Mickey Free singing many songs, including fishing songs. This makes me smile thinking about those things.

843    Robert Lawrie said that there was a special Mirning place at the Head of the Bight called Miranungu, for calling the whales. He said (at [33]):

I have done ceremonies at Miranungu with my brothers. We also had a big ceremony at Jilgagabi Hut. At Moodyerra (‘Merdayerrah Sandpatch’ on today's maps, near Wilson’s Bluff) we also had a great ceremony with all the elders.

844    He said that he grew up hearing how his Mirning ancestors used to walk out and collect ochre from what is now under the sea.

845    As to the extent of Mirning country, Robert Lawrie said that Mirning people were sea people and their country was along the Nullarbor and in the sea, extending as far east as Murphy’s Haystacks and Wallala Rock.

846    In his affidavit, Robert Lawrie described himself as a “law holder”. He claimed he had “called the whales” and annexed a photograph of himself calling the whales during a ritual at Miranungu. He said that during the ritual five whales lined up and turned as he turned. He said “[t]hat is Mirning law and custom in how we communicate, connect and honour the whales, our family, our totem”. He continued:

35.    I was taught by my father that Mirning country has a protocol. Everything on land and in the sea comes under Mirning laws and custom in Mirning country. The whales have their role in the sea and there are protocols with sea creatures.

36.    Growing up I never heard of any law other than Dhoogoorr Mirning law which includes law relating to whales on Mirning country and sea. The Mirning have lived here since Jeedara made this land and sea.

37.    Jeedara is the sacred dreamtime whale, a creation ancestor. This can be seen in the imprints from Jeedara in the sea and land, such as the whale tail at Clare Bay. It can also be seen where traditional Mirning foods grow, like the ngoora coastal grape (I think white people call this nitre bush).

847    Robert Lawrie said that in the context of the present claim he had heard of desert people telling the story of Wanampi (a serpent associated with waterholes in the desert). He said that the snake never came onto Mirning land and “does not belong in our country”. He explained that people from the north did not come to the sea until after white people came, following tracks that were made by Mickey Free Lawrie who had guided explorers in the area. He added (at [41]):

The Aboriginal people from the desert, who practice desert laws and customs did not know our sea or sea coast land. They do not have any traditional rights to Mirning country although the Mirning goonminyerra law (friendly, sharing) means that outsiders were always welcomed by Mirning people to share food or a camping spot so long as they didn’t cause trouble. Though they had to ask our permission. Same as if we went on their country, we had to ask permission. That is traditional protocol.

848    Robert Lawrie went on to say that when he was young, other tribes such as the Kokatha and Wirangu did not claim the sea, but now the young people were contradicting that. He stated that his mother was a Kokatha woman born at Ooldea and that she had always said that the sea was “Mirning and only Mirning country”. He said that it was Mirning law that rights to land and sea were gained by descent and that Aboriginal people from the desert had no knowledge of Mirning culture, traditions or laws. He described them as ignorant and disrespectful, including by putting up gates at Head of the Bight and claiming it as their place.

849    Robert Lawrie gave evidence that the present claim was all wrong, and that the stories and sites “over our country and waters” connected Mirning people and not others to the country and the sea. He said that outsiders, including Yalata, Maralinga, Tjuntjuntjara, Kokatha and Wirangu had no traditional sites or stories on Mirning country. He described Yalata, Maralinga and Kokatha people as “Western Desert people” from hundreds of kilometres away to the north and said Mirning laws and customs allowed for no other laws and customs “to sit on our Country”.

850    In further affidavit evidence, Robert Lawrie said “[w]e never used to have a border cutting our country in two. That is not traditional. Nowadays, under our laws all Mirning people whether they are from WA or SA, hold all Mirning native title rights and interests in all of Mirning country and sea (WA and SA) together as one group of people. Anthropologists and lawyers are changing our laws by saying we don’t which is not telling the truth” and “[t]he Mirning through the Mirning Council of Elders never consented to the WA Mirning Claim or the FWC land claim”. Robert Lawrie did not give oral evidence but did make a short oral submission discussed in Part 18 below.

Michael Laing

851    Michael Laing swore numerous affidavits, some of which were read only in part. Some of the affidavits were not filed in this proceeding. He nonetheless orally adopted the truth of them for the purpose of this proceeding. The affidavits and other documents relied upon by him are before the Court in a bundle marked as an exhibit.

852    Michael Laing said it was his understanding that his grandfather (Gordon Charles Naley) was born in Eucla in 1884 to “a full blood Mirning woman”. He said that he met two Mirning aunties (Betty and Ellen) at a very young age. He asserted that he then met an uncle Edgar (also known as uncle Gee) who was his mother’s older brother. He said that uncle Gee took him across the Nullarbor camping and that he had also taken a cousin (Trevor Naley) on similar trips. He said he was told the story of Jeedara and related it as follows:

… it’s my understanding [that] jeedara would go out of the Nullabor and ganba lifted up the Nullabor and went into the Nullabor, underneath the Nullabor and came up through the holes in the Nullabor and he’d take the whole [land] of course, our people would just, that was it, obviously everybody knows, they’re all scared of ganba on the Nullabor, and ganba would go back out to the sea, of course when they would see the whale, that would bring ganba back – jeedara back as – sorry ganba back as jeedara. Now I understand there’s brothers but that’s the story that I have been told.

853    Later in his evidence he repeated that Jeedara had gone out to the Nullarbor and turned into a ganba (snake). He said that the snake travelled under the Nullarbor creating the blowholes. He repeated that he had been told that by his uncle Gee, who had told him the story when standing on the cliffs at Clare Bay. He explained that Jeedara travelled west from there, carving out the Great Australian Bight.

854    He said that his Mirning family members had passed things on to him and that he had been continually learning over the years. He recalled being taken by his aunties to see a man in Adelaide who they referred to as an uncle of theirs from near Nullarbor Station. He understood the man to be a “blood uncle” and a relative of his grandfather.

855    Michael Laing said that he had a “sacred object directly related to the sea” from the region of Merdayerra Sandpatch that he was prepared to show the Court.

856    He gave evidence that he understood Mirning land and waters to extend across the Nullarbor roughly from Point Culver in the west through to Fowlers Bay. He said he had traditional responsibilities over all Mirning country, waters and associated stories. He referred to a letter from some Mirning elders attesting to his seniority.

857    Michael Laing asserted that Mirning traditional laws and customs that determine whose country it is are different from those of other groups and from Western Desert law.

858    In cross-examination, Michael Laing said he was raised in Melbourne until the age of 12, then moved permanently to South Australia. He said he was aged about 18 when his uncle Gee first took him to the Nullarbor. He denied that he had first travelled to the Nullarbor on a family trip in 2006. He said that his uncle had referred to the area around Fowlers Bay as “our country”. He retold a story about an Eaglehawk and a waterhole shared with him by his uncle on the trip. He denied that his knowledge of country had not been provided by his uncle but rather from Robert Lawrie at a later age.

859    He acknowledged that he first started researching his family history in 2003 to obtain documents confirming his Aboriginality. He said that before that time he knew that Gordon Charles Naley was his grandfather and that he was Aboriginal. He said that his aunties had used the word Meening rather than Mirning. The applicant’s Counsel challenged the truth of that evidence, suggesting that he did not know he was Aboriginal, and that the use of the word Meening in his affidavit was “just a ruse for saying you didn’t know about Mirning”. Michael Laing said that he had obtained documents including confirmation of his Aboriginality to prove his identity to an obnoxious neighbour who had challenged him about his race.

860    Michael Laing said that Gordon Charles Naley had died when his mother was two. He said he presumed he had been raised on Mundrabilla Station by a white foster mother. He explained that his uncle had told him that Gordon Charles Naley lived and worked across the Nullarbor and ended up at Fowlers Bay. He claimed that his grandfather enlisted in the First World War and later settled in the South Australian Riverland.

861    Michael Laing was challenged on his claims that he first travelled to the Nullarbor with uncle Gee. He was taken to affidavits he had sworn in 2009 asserting that he did not learnt of his own Aboriginality or Mirning identity until much later in life.

862    He was questioned about native title claims he had previously made including a claim on behalf of members of the Naley family that incorporated the western half of what later became the FWC Land Determination Area, his attempt in 2009 to be joined as a party to proceedings and his challenges to the claim that culminated in the FWC Land Determination Area.

863    Michael Laing was cross-examined about artefacts his aunty Ellen had given to him when he was a child. He said that one was a special rock and the other was a piece of wood with carving on it. He said she had not explained why they were special or how they had been used in the past, and he did not know whether they had anything to do with the sea.

864    Michael Laing said he had been on country with Bunna Lawrie and danced with him. He declined to give details of the dance but said it did not have anything to do with whale law.

PART 11:  WITNESS IMPRESSIONS

865    In many respects the resolution of the Preliminary Questions does not turn upon any contest of witness testimony and I have been able to resolve many of the issues without the need to make findings about the reliability or credibility of any particular witness. Where it has been necessary to refer to the impressions of a particular witness, that has been done in the context of dealing with specific issues rather than in a global way.

866    For some purposes, I consider it necessary to record my general impressions of Bunna Lawrie and to comment upon a feature of the evidence of Lloyd Larking. They appear in Part 20 below.

867    As discussed in Part 18, I have accepted Michael Laing’s evidence concerning the source of certain aspects of his knowledge. Whilst there was an attempt by the applicant to undermine his credit, critical issues concerning his ancestry are objectively proven and do not turn on any positive or adverse credit finding.

868    One feature of the Aboriginal evidence is the number of occasions in which a witness asserted to have knowledge in an affidavit, coupled with an inability in cross-examination to provide specific details. In such cases I have placed more store on the oral testimony of the witness as a true representation of the limits of their knowledge.

869    For the purpose of making factual findings (and except to the extent recorded in Part 20 of these reasons) I accept as objectively true that part of the Aboriginal evidence in which the witnesses disclosed how they had obtained their knowledge, not only in respect of practical matters in the Sea Claim Area but also in respect of mythology and the association between the Sea Claim Area and certain ancestors. Acceptance of that part of the evidence as true does not carry with it a finding that the information provided by them is objectively true.

870    To the extent that Aboriginal evidence was adduced to prove the fact of the witnesses’ subjective beliefs, I find their beliefs to be genuinely held.

871    I have placed no weight on some parts of the Aboriginal evidence that could be interpreted to deny the consent underpinning the FWC Land Determination or the quality of that consent. Some evidence concerning negotiations culminating in that determination is relevant for other purposes, as will become apparent. Similarly, where a witness has asserted a fact that is inconsistent or incompatible with the FWC Land Determination I have given that evidence no weight.

PART 12:  TRADITIONAL LAWS AND CUSTOMS ASSERTED BY THE APPLICANT

872    The applicant invites the Court to find that all persons falling within the proposed amended Claim Group description are native title holders.

873    To some extent the applicant’s asserted laws and customs giving rise to the asserted native title could be identified by working backward from the three pathways by which a person may hold native title holder according to the proposed amended originating application. Each of those pathways is premised with the description “[u]nder the relevant traditional laws and customs of the Kokatha, Mirning and Wirangu who comprise the Far West Coast People, the native title claim group members are those living Aboriginal people who …”.

874    Pathway A then captures people who “are descendant, either through birth or adoption” from two groups of persons. In the first group are apical ancestors listed by name. In the second group are “any other person acknowledged by the native title claim group as a Kokatha, Mirning or Wirangu antecedent where the antecedent was born on or near the [Sea Claim Area] at or around the time of sovereignty”. Each description has a focus on descendancy, and each depends on the Mutual Recognition Condition, expressed as follows:

AND who are recognised by other native title claim group members under the relevant traditional laws and customs of the Far West Coast Peoples as having realised their rights through knowledge, association and familiarity with the [Sea Claim Area] gained in accordance with the laws and customs of the native title claim group, and therefore as holding native title rights and interests in the [Sea Claim Area]:  …

875    Inherent in Pathway A are the concepts of “Mirning”, “Wirangu” and “Kokatha”, being groups of Aboriginal people, and “Mirning antecedents”, “Wirangu antecedents” and “Kokatha antecedents”. The list of antecedents is not divided in a way that identifies who is Mirning, Wirangu or Kokatha. The applicant has chosen language group terminology as part of the framework in which it has asked the Court to consider the Preliminary Questions. It must be inferred that those phrases mean something to the Claim Group members.

876    Proposed amended Pathway B captures those who “were born within or near the [Sea Claim Area] and have gained knowledge of the land and waters of the [Sea Claim Area] in accordance with the traditional laws and customs of the native title claim group”. It too is conditioned by a similarly worded Mutual Recognition Condition. That pathway does not depend on descendancy from any person and it is not suggested that a person may obtain native title rights and interests in the Sea Claim Area by being a descendant of a person who once fulfilled its conditions.

877    Pathway C does not depend on descendancy. It captures persons who “have mythical or ritual knowledge and experience of the [Sea Claim Area] and have responsibility for the sites and strings of sites within the [Sea Claim Area] that are associated with the Tjukurpa (Dreaming)”. Pathway C is also subject to a Mutual Recognition Condition.

878    None of the pathways describe marriage as a status that gives rise to native title rights and interests under traditional laws and customs, let alone rights that are capable of being transmitted by descent. That is not to say that intermarriage between Aboriginal people in (or associated with) the broader region is irrelevant. It is simply to observe that the applicant did not advance a case through its originating application (whether amended or not) that a person gained native title rights and interests by virtue of their marriage to a person who was a native title holder under any one of the asserted pathways.

879    It must be borne in mind that it was the applicant that put forward a case that named a long list of apical ancestors in the first limb of Pathway A. The applicant bore the onus of establishing that the descendants of each of those ancestors (if they exist at all) have native title rights and interests in the Sea Claim Area under the traditional laws and customs by reason of that descendancy. That task, in turn, required proof that those persons had a connection to the Sea Claim Area by the traditional laws and customs under which the rights and interests are possessed:  NT Act, s 223(1)(b). What then are the laws and customs?

880    A written iteration of the traditional laws and customs relied upon was contained in the applicant’s closing submissions. It was as follows (where NTRI means native title rights and interest and NTH means native title holders):

1.    NTRI are obtained through descent from an ancestor with traditional connection to the area at sovereignty (transmitted to subsequent generations and realised through knowledge of country);

2.    NTRI can also be obtained through birth in an area proximate to the claim area, when realised by gaining knowledge of the area and recognition by other NTH;

3.    NTRI can also be obtained through totemic and ritual attachment to the claim area or to sites associated with it, where such rights are recognised by other NTH;

4.    Members of the Applicant group regard themselves as part of FWC society. Individual members of the group may have more particular attachments to certain parts of the claim area, and those members do not require permission to access and use the claim area generally. This is consistent with traditional laws and customs regarding:

(a)    intermarriage;

(b)    shared ceremony;

(c)    trade; and

(d)    seasonal use of the coast by all three groups;

5.    Knowledge about the claim area is transmitted from generation to generation regarding:

(a)    associations with country including the sea;

(b)    fishing practices, both traditional and adapted; and

(c)    respect for and sharing with elders;

6.    Spiritual knowledge related to the claim area is held by claim group members and transmitted between generations, including:

(a)    knowledge of particular Dhoogoor/Tjukur/Dreaming related to the claim area;

(b)    belief in spirits inhabiting country associated with the claim area;

(c)    knowledge of the cultural significance of particular sites along the coast;

(d)    totemic associations of claim group members; and

(e)    maintaining rules requiring secrecy of certain Dhoogoor/Tjukur/Dreaming stories and cultural matters (and of particular relevance, including those associated with the coast and sea);

7.    The claim group have obligations to protect and maintain the sea and sacred sites on the coast;

8.    The claim groups’ use sea resources according to knowledge transmitted between generations, that reflect customary practices concerning:

(a)    utilising reefs and surrounding areas;

(b)    knowledge of ‘holes’ in reefs and rock pools as good locations for fishing;

(c)    knowledge and use of fish traps;

(d)    knowledge of access points and climbdowns;

(e)    swimming and diving (including by adaptation of certain equipment) to access certain locations;

(f)    spearfishing, that includes an adaptation using modern equipment;

(g)    crabbing and razor fishing;

(h)    use of flotation devices to assist catching fish and collecting shellfish;

(i)    use of flint for artefacts; and

(j)    knowledge of fishing locations, particularly where fish and shellfish can be obtained, that includes adaptations of rods, handlines, nets and boats;

9.    The sharing of fish and shellfish with elders and other family members;

10.    Knowledge about safely accessing the sea including:

(a)    shark safety;

(b)    the appropriate time of the year to catch particular species;

(c)    teaching children water safety:

(d)    knowledge of seasons and weather conditions favourable for using the sea; and

(e)    use of fire in relation to fishing;

11.    Practices for cooking fish and shellfish.

881    The first statement refers to descent from ancestors with “traditional connection to the area at sovereignty”. It may be inferred that all of the apical ancestors listed in the originating application are those persons who are asserted to have the required connection to the Sea Claim Area (as distinct from the FWC Land Determination Area or any part of it) at sovereignty. However, the applicant was put to proof on the question of how and why that was so.

882    The thrust of the applicant’s argument throughout the trial was that the holders of native title in the sea were the same as the native title holders on the land, the membership of the group necessarily being the same as those described in the FWC Land Determination. The applicant’s Counsel then resisted any enquiry into the content of the laws and customs under which native title rights and interests were held in the FWC Land Determination Area, persisting with a submission that the existence and occupants of coastal estates at sovereignty were irrelevant matters. Yet at the same time, the applicant’s lay and expert evidence had a very strong focus on the land and upon the descendancy of the Aboriginal lay witnesses from certain apical ancestors and their geographical association with parts of the land. That evidence could only be relevant if it had something to say about the witnesses’ connection to the Sea Claim Area under traditional laws and customs of a group. On the applicant’s own case under Pathway A, those laws and customs traditionally gave rise (and continue to give rise) to rights capable of being transmitted by descent from one or more ancestors.

883    The applicant’s insistence throughout the trial that evidence concerning the existence and implications of coastal estates was irrelevant was as peculiar as it was unhelpful. Counsel for the applicant went so far as to submit that the experts were wrong to address the topic at the unmoored pre-trial conference and that by doing so they had embarked on something of a frolic of their own unmoored from their instructions. I reject that submission. Any examination as to how native title rights and interests have been transmitted through the generations cannot be undertaken without an examination of the pre-sovereignty position as its logical (indeed essential) starting point. No expert witness could be regarded as tethered to a particular party’s case theory, given the obligation of an expert to independently assist the Court.

884    Moreover, to the extent that the pre-sovereignty position differs from the present day position, it is for the applicant to prove that the changes as they relate to the Sea Claim Area are adaptations that are referrable to laws and customs properly described as “traditional”:  Yorta Yorta (at [83]). Having drawn attention to the pre-sovereignty position on the land, the applicant cannot be taken by surprise by the defence raised to that case.

PART 13:  PRELIMINARY FINDINGS BASED ON UNDISPUTED OR LESS CONTENTIOUS FACTS

885    At this juncture it is helpful to set out some undisputed high-level facts against which the more contentious matters must be decided. There is of course no consensus about the State and Commonwealth’s alternate case that native title does not, in present times, exist at all in some parts or the entirety of the Sea Claim Area. The degree of consensus and agreement on some topics presupposes that they will become relevant if that alternate case is rejected.

886    I traverse in this section of my reasons a number of overarching topics that were either the subject of express agreement or in respect of which there was no apparent conflict between the parties. To explain the extent of agreement I have drawn at times from evidence of an expert to explain a concept that had the general consensus of the others.

887    In setting out the areas of broad consensus I emphasise that an agreement as to pre-sovereignty laws and customs or factual circumstances did not necessarily carry with it an agreement about the post-sovereignty position. There is considerable dispute as to whether post-sovereignty changes have affected the possession of native title rights and interests and the nature of any rights and interests that may now be held.

The indisputable fact of the FWC Land Determination

888    A critical and indisputable fact is that the FWC Land Determination was made in the terms in which it was made. The other consent determinations mentioned earlier in these reasons are also relevant, but the FWC Land Determination has special evidentiary significance because of its geographical position in relation to the Sea Claim Area.

889    The Court places great store on the circumstance that the FWC Land Determination Area is immediately adjacent to the sea waters. The nature of the sea waters is very different to that of inland lakes and rivers seen in other parts of Australia, not only because it is the sea, but also because the southern boundary of the Sea Claim Area does not run up against the determined country of any group, nor against any undetermined native title claim. In addition, there are few visible “landmarks” (for want of a better word) in the sea itself. When witnesses spoke of the sea, they usually spoke of waters lapping identifiable land, or otherwise of “the sea” in a general sense without reference to any part of the adjacent land. Of course there was reference to some islands, reefs and other terrestrial surfaces, but it remains that considering the evidence in a sea claim such as the present brings with it different (and in some ways more difficult) considerations than in terrestrial claims.

890    At an evidentiary level, the FWC Land Determination was referred to repeatedly, as the anthropological experts who appeared before me extracted from Palmer 1 to explain their own views about the organisation of Aboriginal groups in the region of the west coast of South Australia. They then extrapolated those opinions into the Sea Claim Area to different degrees and for different purposes.

Estate groups

891    It was the shared view of all parties and experts that prior to the assertion of sovereignty, Aboriginal groups occupied, accessed, used and had connections with land and waters under a land tenure system based on interrelated and interdependent familial groups (estate groups) occupying and having responsibility for tracts of land and waters (estates).

892    Redmond and McCarthy described the estates as consisting of “crisscrossing strings of sites associated with the tracks of travelling Dreamings” that tended to be overlapping rather than having strict outer boundaries.

893    There is little in the ethnographic record to show the size of an estate group’s tracts of country, although it was generally agreed between the experts that an estate could extend landward from the coast for a distance of some 20 km – 40 km. An estate could be associated with one or more fresh water sources or Dreaming sites for which members of the estate group had responsibility. There may also exist water sources used by Aboriginal people but not falling within an estate. There may be transitional or shared zones between or within estates.

Rights transmissible by descent

894    Prior to sovereignty, rights and interests in land and waters of an estate were transmissible by descent through one’s father. The words patrifilial and patrilineal were used to describe a pre-sovereignty kinship system under which rights were determined by descent through the father’s side.

895    Redmond described estates as “local country groups”. He said:

27.    Membership in the local country groups which held enduring identities with, and ritual and economic responsibilities for, tracts of country was established primarily (but not exclusively) through filiation (including adoption) via a parent or grandparent’s ownership of one or more of these estates. Traditionally there has been a strong patrifilial element in this mode of connection to country.

28.    The ethno-historic account of local groups emphasises the totemic signifier by which the groups were named and how each local group was focussed on particular rockholes as their territorial centre.

896    The “strong patrifilial element” referred to in that passage permits some flexibility whereby rights and interest in tracts of country could be obtained by descent from a mother in some limited circumstances (discussed below).

Core rights

897    Rights in country forming a part of a person’s estate were referred to in the evidence as “core” or “fundamental” rights. Those terms were distinguished from “user rights” or “filial associations”.

898    The asserted Pathways B and C in the proposed originating application may be examples of the latter. However, the existence of those other rights and interests is also a matter in dispute. The Aboriginal witnesses did not use those terms, however, they repeatedly referred to a right to “speak for country” and the experts used that phrase interchangeably with rights having their source in the traditional concept of core or fundamental estate rights. I will use the phrase “speaking for country” in the same way.

899    The concept of speaking for country and associating individuals and language groups with parts of country was used throughout the affidavits and in the questioning of Aboriginal witnesses, including by the applicant’s Counsel. For example, Dorcas Miller was asked “[d]o you agree that part of your husband’s country was around the Ceduna area?”, “[a]nd am I right that the Ware family, part of their country was around Fowlers Bay?” and “I am asking if it was their country?”.

900    It is not disputed that there may exist other rights and interests that do not arise by descendancy from an antecedent core rights holder. In argument, as in the expert reports, the label “use rights” was employed, but I do not consider it a helpful description because it tends to focus on usufructuary concepts under western law. It also ignores the nuance that both core rights holders and other persons may use the land or waters in circumstances where native title rights and interests are possessed by the former but not necessarily by the latter.

901    In Akiba v The Commonwealth (2013) 250 CLR 209, French CJ and Crennan J described the difference between ancestral occupation based on rights and other rights in the following way:

42.    The reciprocal rights asserted by the appellant derived from the ‘customary marine tenure model’, which the primary judge found to encompass two types of rights. The first were ‘ancestral occupation based rights’ or ‘emplacement based rights’. The second were ‘reciprocal rights’. His Honour found that the latter differed from ‘occupation based rights’. Their defining characteristics were that they:

‘(a)    are held by each person who has or each group of persons who have a relevant reciprocal relationship (whether based in kinship or of another kind, such as tebud/thubud) with an ancestral occupation based rights holder or group of such rights holders; and

(b)    can be called rights or interests because they are enforceable and sanctioned by appeal to the law or custom that associates the reciprocal obligation with the relationship and the law or custom that sanctions consequences for denial of the reciprocal obligation;

(c)    are ‘group’ or ‘individual’ rights;

(d)    cover the area covered by the rights held by the person or group upon whom the right depends (but ultimately subject to regulation by that person or group or by the descent group of ancestral occupation based rights holders for that area);

(e)    the content of the rights is reciprocal shared access and use which permits the same activities as may be done by the person or group upon whom the right depends but does not include territorial control or livelihood and the exercise of the right is subject ultimately to control by ancestral occupation based rights holders.’

(Emphasis in original.)

43    His Honour accepted that the Islander society has a body of laws and customs founded upon a dominant and pervasive principle of reciprocity and exchange. It is a principle which expresses notions of ‘respect, generosity and sharing, social and economic obligations and the personal nature of relationships’.

(footnotes omitted)

Kinship and ceremonial connection

902    As McCarthy said, estate groups exist by necessity in relationship with other estate groups:

You need to take your wife from somewhere, you need to marry your daughters somewhere. They’re chains of connections.

903    Redmond explained that networks of kin, rather than more formally structured political entities, were the focal elements of Aboriginal society in his research region. Traditional laws and customs relating to marriage formed a part of a broader system of social and spiritual organisation.

904    Estate groups were described as “totemic”, each having one or more totems carrying significance for social organisation, including who one could or could not marry. Bates recorded intermarriage between groups at Eucla and groups at Euria going back to grandparental level at the time of her records and so placing them in the pre-sovereignty period. She also identified by name a number of totemic estate groups in the region of Eucla and at or near the State Border that are agreed to be the traditional estates of Mirning people. Sackett summarised Bates’ work in identifying localised totemic groups and expressed the view that she was on solid ground in doing so.

905    The pre-sovereignty position is that upon marriage a woman would occupy the estate of her husband and at the same time maintain interests in her father’s estate, her core country. Intermarriage was part of what Redmond called “a system of complimentary affiliations”. The marriage and interfamilial relationships created social connections between estate groups over a broader region. They included customs of access and use of a husband’s estate by members of his wife’s family for visits and other social purposes referable to the marriage, including obligations owed by the husband to the wife’s family members.

906    Graham referred to the possibility that a man would live on his wife’s country. However, that view was pitched at the level of what was possible rather than what was the probable position and the permanent location of a husband in his wife’s core estate was not the subject of any consensus.

907    Redmond and McCarthy drew on the writings of Howitt and Fison and their early description of local organisation, including this, penned in 1883:

Local organisation — The tribe is also made up of a number of clans or local groups, each of which has a local position in some part of the tribal territory. Its name is usually derived from the locality it occupies, or from certain qualities attributed to it. It has perpetual succession through the males, who hunt over the same tracts of country over which their fathers hunted before them. Its daughters have to become the wives of men belonging to other clans, whose sisters, in turn, come to it as wives....  Thus we see that the social organisation permeates the local. It rules in many cases the assemblies and ceremonial of the tribe; it regulates marriage, descent, and relationship; it orders blood-feud; it prescribes the rites of hospitality; and it even determines the sides to be taken at the ballplay …

(Howitt and Fison 1883: 33)

908    As I have already mentioned, the estates were connected by Dreaming tracks and may incorporate sites of significance to not only the estate group but to others with certain knowledge and responsibilities. There may exist ceremonial relationships between groups associated with an area involving responsibility for country and the performance of rituals.

Pre-sovereignty range of movement

909    Redmond and McCarthy conceived of estates as zones where one core identity country faded into another core identity country. They said, of the Mirning people:

At sovereignty, the Mirning form of local organisation that structured tenurial rights and interests was a system which privileged patrifilial connections to totemic local estates. Local groups across this entire research region have traditionally been engaged in ceremonial and marriage relationships within a wide radius of their particular local estate countries (see Sec 3.2.3 for an explanation of this term).

910    The fact of pre-sovereignty access and use of country outside of a person’s core estate and within a broader “range” is not itself disputed. However, there is some dispute as to whether or not those rights and interests are capable of transmission by descent and whether they may properly be characterised as rights and interests in relation to land or waters within the meaning of s 223 of the NT Act.

911    The experts generally agreed that there was a difference between land and waters that formed a part of an estate, and a person or group’s range outside of the locale of the estate. Movement could happen for purposes of travel related to ceremony or movement for the purposes of trade with other groups or for societal reasons related to marriage.

912    Travel for ceremony could involve traversing vast distances. Bates recorded a ceremonial meeting at Eucla in 1944 involving people travelling from not only the Nullarbor Plain but from as far away as Boundary Dam, Penong and Ayres Rock (as it was then called). Ooldea was also described in the evidence as a meeting place of Aboriginal people from many distant places.

913    There was agreement that estate groups moved according to resources and were not permanently situated at a specific location (there being no permanent Aboriginal settlements as there were in some other parts of Australia). Graham agreed that people stayed longer in places where there were more resources, and that there were more resources in areas such as Merdayerra Sandpatch than there were on the Nullarbor Plain. Consistent with the topography described earlier in these reasons, he described the whole of the area as “marginal country”. Those remarks were not contested. The Court heard that there were permanent water sources at Merdayerra Sandpatch, Eucla and in springs on the Hampton Range (on the Nullarbor Plain).

914    Liebelt referred to the small size of the population of Aboriginal people on the west coast of South Australia. She opined that the scarcity of resources over a large area suggested that people would have travelled extensively, but she added that there was only so much that could be inferred about the pre-sovereignty movement of people. She said that Eyre’s description of beaten pathways across the Nullarbor suggested that the area was well-traversed. The inference was supported by Mailman Jimmy’s fortnightly mail runs between Fowlers Bay and Eucla. Liebelt opined that people would follow known watering tracks and “known mythology sites which would probably follow those watering tracks”.

915    The experts generally accepted that watering holes provided a means for travel across long distances, including across desert environments.

916    The oral and written evidence contains references to Dreaming stories continuing across vast areas of Australia, with different Aboriginal groups having responsibility for localised parts of them.

Composite groups and language association

917    There is evidence that close to effective sovereignty, Aboriginal people referred to themselves and others in group descriptive terms, including the words Mirning, Wirangu, Kokatha and Yulbari (a term discussed below). The evidence shows that the Mirning, Wirangu and Kokatha languages have distinct features, but they also share common words.

918    Graham referred to a distinction between clan groups and language associations and noted that Bates was properly aware of the distinction. He referred to Bates’ carefully hand drawn maps of country that clearly disclosed her opinion about the locations of clan groups and their association with languages. That evidence will be discussed in more detail below.

919    The organisation of people into language groups is relevant to the preliminary questions. The originating application in this proceeding and the terms of the FWC Land Determination recognise that there exist culturally distinct groups of Aboriginal people definable by language association. The words of early anthropologists such as Bates confirm that view.

920    However, all of the experts agreed that if a person spoke a particular language it would not necessarily mean that they had native title rights and interests in the country of others who spoke that language.

Locales associated with language groups

921    There is broad consensus about the geographic connection between different language groups and different parts of the FWC Land Determination Area. The significance of that accord is discussed in Part 17 below.

Cognate descent

922    As Redmond and McCarthy explained, the exclusivity of the patrigroup proprietorship over tracts of land was “mitigated” by environmental factors, such that the variation in resources in the places where the estates were located fostered a strong interdependence between them. To that extent their opinion is not disputed. The degree of that flexibility and its consequences for the present enquiry is the subject of some dispute.

923    As I have mentioned, all of the anthropologists agreed that in the present day rights in land and waters in the Sea Claim Area may pass by cognate descent, meaning either from the father or the mother. To the extent that involved a significant change, it was one that reflected an inherent flexibility in the pre-sovereignty laws and customs. Redmond put it this way:

And certainly in the absence of patrifiliates in a particular area, due to demographic change, we know that matrifiliates may well take up the primary responsibility for those particular waterholes

924    Sackett agreed. He emphasised that whilst the practice was to take the father’s country where possible (being country transmitted from his father and his father before him), there were “complementary affiliations” at work. He said that throughout Australia there were cases in which a group was diminishing in numbers and in which women in the group acquired core rights to country as if it were their own fathers’ country. In such cases, the woman’s rights may then be passed on as if it were a patriline.

925    All experts agreed that rights in the FWC Land Determination Area are possessed in contemporary times by descent through Tjabilja and her son Mickey Free Lawrie (who was born to a white pastoralist and so had no Aboriginal father).

926    All of the Aboriginal witnesses who gave evidence on the topic said that they could choose their identity through their mother or their father, “identity” in those responses being tied in their other responses to specific localities with which their male and female ancestors were connected.

Succession

927    Succession may occur when, in accordance with traditional laws and customs, the members of an estate group obtain rights and interests in the country previously occupied by members of another estate group that no longer exists (referred to as “orphaned estates”). At a pre-trial conference, the experts described succession as:

Where local groups became severely depleted or extinct, members of surrounding local groups would succeed to their country. Mechanisms of succession under traditional law and custom in the [Sea Claim Area] required some form of existing relationship between the original owners and the incoming groups, and probably involved the activation of ‘secondary’ forms of connection to areas.

928    The experts agreed that processes of succession are complicated by the interplay between ancestral connections and the “ritual economy of knowledge in the region”. They agreed that “[t]here are no ‘orphaned countries’ within the coastal strip adjacent to the [Sea Claim Areas]”. That sentence was expressed in the present tense and there appears to be a residual dispute about its intended meaning.

929    Sackett opined that as the population of Aboriginal people became depleted, and colonial pressures increased, estates became larger, fusing to become larger territories referred to in the evidence as “supra estates”. Graham said “[o]ften an entire language group began to act like a clan would have in the sovereignty period”.

930    Sackett added that “over the years language groups have come to assume the characteristics of patri groups in the past, embracing a number of … what were formerly patri groups”. Redmond agreed.

931    The relevant anthropologists were not in agreement about a form and consequence of succession advanced by Graham and Liebelt in Graham/Liebelt 2 referred to as a “secondary mechanism”.

Apical ancestors associated with coastal estates

932    Agreements and disputes about apical ancestors associated with coastal estates are discussed in Part 18 below.

Cultural blocs

933    A cultural bloc is an anthropological device used to categorise Aboriginal people in ways that distinguish them from others according to broad cultural attributes. Cultural blocs are referenced to large regions in Australia where people are located. Two cultural blocs were referred to in the evidence.

934    The Western Desert cultural bloc is a geo-cultural term usually encompassing Aboriginal groups that inhabited the Great Sandy, Gibson and Great Victoria Deserts. It is not disputed that the areas in the immediate vicinity of the South Australian coast do not fall within the Western Desert cultural bloc. Western Desert people referred to in the lay and expert evidence in this proceeding included Pitjatjantjara, Ngalea and Pindiini. The Western Desert groups speak different dialects of the same language. Their social organisation is based on alternate generation levels known as nganantarka and tjanamilytjanpa. Their shared religious beliefs are focussed on the tracks of ancestral beings of the Dreaming referred to as Tjukurpa. There is, as Elkin observed (1931), “remarkable unity of language, mythology and social organization” among them. As Gara has observed, “it was this unity that led Berndt to argue that the concept of the tribe as a territorial, linguistic and social unit was not applicable to the Western Desert situation or, indeed, many other parts of Australia”.

935    The other cultural bloc referred to in the evidence is the Central Lakes, which has its locale east of the Gawler Ranges in South Australia.

936    It was not disputed that the Aboriginal people occupying coastal regions were not a part of the Western Desert cultural bloc. Nor was it disputed that traditional laws and customs relating to the possession of rights and interests in land and waters among Western Desert people differed in important respects from the estate-based tenurial system described above, including because rights to country principally are possessed according to one’s place of birth and not by patrilineal descent in relation to a tract of country associated with an estate group.

937    As Redmond and McCarthy put it:

16.    In this region, as throughout Aboriginal Australia more generally, social institutions were and are shaped by the obligations, rights and responsibilities entailed by kinship:  in particular, the laws and customs governing marriage, initiation, economic arrangements and dispute resolution processes. The focal role of Aboriginal kinship has been documented throughout the ethnographic record.

17.    Networks of kin, rather than more formally structured political entities, were the focal elements of Aboriginal society in the research region.

18.    Region-wide mythological narratives served to reproduce and maintain differentiated country-based identities by attributing the authority for this differentiation to the sacred realm, ‘a fact that is reflected in the firmness with which religious ideology attributes the distribution of land amongst people to the extra-human agencies of the Dreaming’ (Sutton 1982:157).

19.    Language identities were originally imparted to country by travelling Ancestral Beings, and subsequently to the people who emerge from, and thus belong to that country.

…

29.    Mirning traditional laws and customs governing ownership of country can be seen to be situated between those of their coastal neighbours who have a strongly articulated system of relatively well bounded local patri-countries and those of their desert neighbours, the Kukatja, Ngardi and Warlpiri whose countries lie on the peripheries of the Great Victorian and Gibson Desert. In those latter areas, the tenurial model ranks the more ego-centrically, optative and biographically defined elements more highly than their southern and eastern neighbours do.

(footnote omitted)

Disruption of the estate and kinship system

938    Small familial and interrelating estate groups associated with particular tracts of land or waters no longer exist. Whilst there is intermarriage between Aboriginal people in the region and from outside, there was no suggestion that the practice of a wife residing in her husband’s “estate” continues in the present day. No Aboriginal person spoke of any prohibition of who one may marry by reference to any traditional totemic or moiety system operating in or near the Sea Claim Area. And no witness could identify the general locality of estate groups prior to sovereignty other than by reference to the ethno-historical data.

The land runs to the sea

939    In his first written report, Graham drew upon anthropologist Geoffrey Bagshaw’s account of Burarra and Yan-nhangu sea country in Arnhem land, specifically his observation of an erroneous assumption that:

… saltwater elements of local estates constitute little more than spatially contiguous offshore projections of well-defined land areas and, further, that for the purposes of estate ownership and delineation, saltwater is indistinguishable from other contiguously located marine features such as sites and seabed (Bagshaw, 1998:154).

940    In the present case however, at least on the State and Commonwealth’s alternate case, it was common ground that living Aboriginal people who descended from antecedents who had native title rights and interests in coastal areas on the land would (subject to issues relating to continuity and connection) possess native title in the Sea Claim Area by virtue of that same descendancy and the same laws and customs relating to it. As a matter of logic, Aboriginal people would not have had any notion of an invisible line in the water plotting the Lowest Astronomical Tide, and there is nothing else to suggest that any body of traditional laws and customs operating on one side of that line ought to be any different from those on the other.

941    There may, however, be tangible features in the land and seascape having ordinary human consequences for the manner in which the seascape may be seen, accessed and used. It is the effect of tangible realities such as tidal movements, water depths, cliff faces, wave energy and the like that form the basis of the State and Commonwealth’s primary arguments. There is a large area of common ground on those topics, but I will defer summarising them for now.

PART 14:  THE “FAR WEST COAST PEOPLE” AS A “SOCIETY”

942    Paragraph 7 of Conference 1 contains the following statement, agreed by Graham, Liebelt, Redmond, McCarthy, Sackett and Gara:

There is one society for the [Sea Claim Area] … which is the society defined in Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285.

Members of that society hold rights and interests in the [Sea Claim Area]. Some hold ‘fundamental’ rights (ie. rights to make decisions about or speak for country) and some hold ‘use’ rights (ie. rights to access the country and utilise resources).

Those people holding fundamental rights (ie. rights to make decisions about or speak for country) in the claim area are persons who:

•    are living descendants of apical ancestors who held country located along the coastal strip adjacent to sea claim area;

•    as a potential secondary mechanism, obtained rights through birth and totemic attachment realised through subsequent knowledge, association and familiarity with the country along the coastal strip adjacent to the sea claim area.

Those people holding use rights (ie. rights to access the country and utilise resources) are people who:

•    have rights potentially available to them as a member of the society.

(emphasis added)

943    Interpreted literally, that agreed proposition appears at first glance to provide a complete answer to the Preliminary Questions and these reasons should end here. However, it emerged at trial (and in supplementary reports received after the trial) that there was a dispute about who the native title holders were. I have had regard to the fact that at the pre-trial conference the experts agreed to the above proposition, but the weight to be afforded to the fact of the agreement has been diminished by a number of factors. The first factor is that there is a dispute about whether or not “use rights” that are “potentially available” to a person who is a “member of the society” are native title rights and interests. The very existence of that dispute indicates that the experts did not necessarily equate all persons who were members of the “society” they described as being persons who possessed native title rights and interests in the Sea Claim Area at all. The “potentiality” of the rights was a theme that was not explored at the trial (at least not in those terms), as opposed to the concept of whether access and use of land was mediated by requirements for permission or personal status arising from a kinship relationship. I also confess to having some difficulty understanding how persons with “use rights … potentially available” fit within any one of the pathways set out in the applicant’s proposed Claim Group description. The conundrum is especially pronounced in connection with the descent-based Pathway A. Whilst I can apprehend that a person may access and use country in respect of which they have no core rights, whether or not the “right” of access or use is transmissible to the person’s descendants for all time is highly questionable on the evidence before me. I accept that there is some “potentiality” in all of the pathways to the extent that they each include the Mutual Recognition Condition.

944    I also apprehended the potential for confusion between the concept of a “native title society” for legal purposes and the concept of an Aboriginal society in anthropological discourse. That potential arose throughout the trial and was not specific to any particular lawyer or expert.

945    Graham was the applicant’s expert witness. In Graham 1, he said the source of rights of “inland people”:

Like Palmer, I am of the opinion that inland people do share attachments to some common sites on the coast due to travelling mythic characters and their associated narratives - though there do also seem to be varying understandings of their constituent elements. This I have found to be common across the Continent and do not find it in any way anthropologically problematic. Based upon these commonalities, Palmer and the Court in the [FWC Land Determination] found that the relevant society was the composite three language group with interests out to the LAT. It would not be impossible for the area further out from there to be that of a different group or mix of groups.  …

(emphasis added)

946    That opinion admits to the possibility of there being native title rights and interests held by a subset of those defined in the FWC Land Determination, including at the level of a different regional society. That is reflected in a later passage in which Graham accepts that findings as to rights and interests in sea country can be a complex matter and are not necessarily “one-to-one” with the adjacent land. Speaking in the abstract for now, it seems to me that one reason why that might be so is that the travelling mythic characters and their associated narratives are not shown to go beyond the Lowest Astronomical Tide.

947    I will take this opportunity to comment further on some opinions contained in Graham 1 and the extent to which Graham adopted the opinions of Palmer as they related to land adjacent to the Sea Claim Area. In doing so I do not mean to undermine Graham’s anthropological expertise. However, a critique of his first report is illustrative of the risks of assuming too readily that the FWC Land Determination supplies the factual answers to the questions with which I am concerned. It is also a convenient way of identifying some of the more contentious areas where the experts are apart in anthropological terms, which in turn helps to elucidate legal disputes between the parties.

948    A key feature of Graham 1 is the extent to which it quotes and adopts the opinions in Palmer 1. There are two risks in that approach. The first is that it assumes that the factual propositions underpinning Palmer’s views in connection with the FWC Land Determination Area can be factually extrapolated into the Sea Claim Area. One area incorporates a desert fringe in its northern parts. The other is comprised mostly of ocean. The second risk is that it is necessary to grapple with the circumstance that Palmer did not support a conclusion that native title rights and interests existed in the Sea Claim Area (resulting in the dismissal of all parts of the land claim that fell seaward of the Lowest Astronomical Tide). It may be safely assumed that whatever Palmer concluded in relation to the land did not, in his opinion, apply to the sea.

949    Graham referred to Palmer’s description of the word “Kokatha” as “an ‘all-purpose appellation used by coastal people’ for those from the north of whom they were suspicious and afraid”. That accords with ethnographic material discussed below, neatly summarised in this observation from Redmond and McCarthy:

The ethnohistoric record located traditional Kukatha country in the northern reaches of the desert fringe and extending east into the Gawler Ranges. Southern groups such as the Wirangu and Mirning appear to have employed the term ‘Kukatha’ as a catchall term for northern strangers.

950    Graham went on to describe the “Kokatha native title holders” in the FWC Land Determination as “those Aboriginal people adjacent to the Mirning and Wirangu with whom they shared a considerable degree of sociology, intermarriage, joint ceremonial and recognition of common Dreaming sites and mythologies”. He did not reconcile how the Kokatha people to whom he referred could meet that description and yet also be considered as threatening outsiders from the north. Nor were the “common Dreaming sites and mythologies” identified. As the evidence emerged, I heard no accord among Aboriginal witnesses about the existence of Dreaming sites and mythologies that were common to two or more language groups.

951    Quoting from Bagshaw, Graham adopted this description of linkages between different estate groups and “domains”:

Complex ritual connections based on the journeys and activities of wangarr [i.e. Dreaming] link different estates and estate owning-groups within and between domains .. Variously expressed in terms of shared madayin [sacra associated with Dreamings and ritual] and concomitant notions of shared identity, and / or immutable kinship relations between estates (e.g. sibling, spouse, and MM-fDC / ZDC relationships), such mythologically inscribed linkages confer a range of collectively held rights and interests in the estates of other groups (Bagshaw, 1998:156).

952    That is a general statement reflecting more than two centuries of anthropological enquiry and so provides a valuable starting point. However, whether there exist “mythologically inscribed linkages” or other linkages giving rise to native title rights and interests in a particular area is a question of fact to be determined (in this case) in an adversarial setting. The anthropologists’ expertise can assist the Court to interpret evidence in fact adduced about linkages of the kind described, but general references to the existence of linkages are not sufficient proof of their existence in a particular locality (especially when their existence is disputed).

953    Graham expressed his agreement with Palmer’s view that it was not necessary for a member of a society to know all other members of that society or to expect to interact with all other members. Neither, said Palmer, was it necessary for all members of a society to live in peace and harmony, since the sharing of laws and customs did not mandate concord. That conclusion is not problematic in and of itself. However, disharmony in relation to ownership or interests in land and waters may also evidence the existence of different laws and customs bearing on the same subject matter, or the wrongful disrespect or invasion of the estate-based interests of a group by others not having any rights or interests in the land and waters under Aboriginal traditional laws and customs at all.

954    Graham went on to say:

…  I agree with [Palmer’s] opinion and will add that it thus divides ‘ownership’ from the laws and customs under which one may own something, for the present matter, country and its associated Aboriginal sacra (sites, mythic narratives). That one may be able to identify a Wirangu country in the anthropological record, (for example, or any other group), does not automatically require the identification of a uniquely Wirangu set of laws and customs with regard to land for a group may well own land an area of land but the Aboriginal traditions, laws and customs under which they do may be shared with others who do not own that particular piece of country.  …

955    Graham identified previous instances in which native title determinations had been made in respect of combined language groups, concluding that multi-language group societies of that nature are not unknown in Australian Aboriginal anthology or in native title law:  Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359; Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1514.

956    It is correct to say that laws and customs relating to rights and interests in land and waters may (indeed must) have a normative content in that they are acknowledged and observed by a group. The group united in their acknowledgement and observance may be described as a “society” for that purpose. It is also correct to say that the persons united in that acknowledgement and observance will not all have rights and interests in a particular portion of country. It is not the case that all persons united in their acknowledgment and observance of the same laws and customs must be described as claimants on an application for a determination. They need only be described if they possess native title in some part of the subject land and waters in accordance with those traditional laws and customs. To put it another way, a native title application brought under s 13 and s 61 of the NT Act is place-specific, and the Court is concerned to identify who are the native title holders in and only in that location. It is in that way that a claim group may permissibly be a subset of a wider group that observes the same laws and customs. It may also be convenient for an application to be commenced by a group whose members collectively hold rights and interests across the subject area, with the question of who holds which rights then left for intramural allocation.

957    Graham went on to express agreement with Palmer’s view that there was a “permission system” for accessing country other than one’s own, but did not disclose his own reasoning as to why that was so, nor did he go on to consider the consequences of that “permission system” in identifying who possesses native title rights and interests in the Sea Claim Area.

958    Graham recorded that Palmer’s conclusion was that the relevant society along and adjacent to the coast comprised three language groups. Palmer’s view was that, whilst the evidence from accounts he had considered was “not conclusive”, the Mirning, Wirangu and Kokatha “shared some cultural commonalities” which enabled them to “share ritual practice and beliefs, entertain common attachments and concerns for areas of spiritual and mythological importance and so interact and, in all probability, inter-marry”. Palmer went on to say that members of the language groups “would then appear to have recognised the mutual observance of laws and customs and adherence to a common normative system and as such can be considered to have comprised a single society”. He suggested that post-sovereignty demographic changes may have enhanced the “existing commonalities and commensalities”, but it was also true that the language groups asserted individuality based on language difference and locality.

959    Graham concluded that Palmer “had good reason to so define this native title society”, which he considered had support in materials showing “multifaceted connections between the two coastal groups and the Kokatha”. He referred to Palmer’s use of Mathews’ grouping of Kokatha with coastal groups into one of his “nations”, and the circumstance that coastal groups participated in “great corroborees” with inland groups. He said:

As I understand it, Palmer’s society does not preclude strong and specific attachments to the coast by groups with Mirning or Wirangu ancestry, such persons comprising in his terms a ‘component subset’ of the wider societal population. Just as in his ‘model’, not all members need know of each other, nor do all necessarily have direct and, or detailed knowledge of the ocean, (or the interior desert for that matter). Neither I would argue, do all need to make common or equal use of each environmental zone, for example dwellers of the interior may rarely, if ever go fishing on the coast. Palmer 2009 identified intermarriage, religious belief and ritual practice as well as ‘common attachments and concerns for areas of spiritual and mythological importance’ (see his paragraph 282) as shared social and cultural elements upon which he based his opinion.  …

(footnote omitted)

960    However, Palmer’s view is to be understood in the context of a claim where each member of the Claim Group had rights and interests in some part of the subject land. That land included northern parts of the area, being desert fringes occupied by Kokatha antecedents as their core country. As identified below that factual circumstance is not present in the Sea Claim Area.

961    On the topic of society, Graham concluded:

The present FWC Aboriginal population are descended from those who lived in this area or have moved in from areas inland over the historic period where cultural similarities, shared religious practice, and intermarriage bound them in a single society with shared law and customs. Intermarriage between persons of Wirangu, Kokatha and [Mirning] that has been occurring across the historic period, that is for some 160 years now, make the concept of a Mirning society, for example problematic. The persons I have spoken with have ancestors from a number of these groups such that I am unable – based upon descent – identify an independent ‘core’ of persons for any of these groups. (Though this would have once been the case when patriclans still existed and where inheritance of such specific areas through one’s father and father’s father provided a clear (and largely verifiable) criteria for group membership.)

(emphasis added)

962    That passage introduces an area of debate that continued into supplementary reports received months after oral closing submissions were complete. Post-sovereignty movement of Aboriginal people from northern areas to areas once organised as coastal estates was significant both in its pace and geographical extent. The consequences of that movement for the resolution of the Preliminary Questions are discussed in Part 19 below.

963    All of that serves to illustrate how dependant the present case is on the way in which contemporary living members of the Claim Group describe the traditional laws and customs under which native title rights and interests are possessed.

964    I will now turn to consider the evidence and arguments concerning physical access to the Sea Claim Area prior to effective sovereignty and the Claim Group’s asserted present day connection to the Sea Claim Area (whether physically accessible or not).

PART 15: PHYSICAL ACCESS TO THE SEAPART 15: PHYSICAL ACCESS TO THE SEA

965    At the pre-trial conference it was agreed by Graham, Liebelt, Redmond, McCarthy, Sackett, Gara and Nicholson that at effective sovereignty, people accessed the sea in the Sea Claim Area in shallow waters only (to a depth of 2 m), that multiple points along the strip were not suitable for swimming and that people did not use watercraft. They agreed that there were points where it was possible to climb down cliffs, but those points appear to have changed over time. They agreed that no ropes of any length were used to assist in descending the cliffs. Whilst they agreed on those propositions, neither Redmond nor McCarthy had been briefed to address them in their reports. The locations referred to by the experts in Conference 1 are not identified.

966    The experts further agreed that at effective sovereignty there was no evidence of fishing tools such as hooks, nets or lines for the Sea Claim Area and no evidence of specialised fishing spears. There was, they agreed, “no evidence of constructed stone fish traps in the [Sea Claim Area]” but there was evidence of natural fish traps and their use.

967    The parties agreed the following facts:

1.    During those periods within the last 65,000 years when the claim area was not submerged by the sea, it was in all likelihood inhabited by Aboriginal people.

2.    There is at present no known archaeological nor other physical evidence from which the group or tribal identity of those prior inhabitants can be established or inferred.

968    The agreed facts recognised that rising sea levels mean that the Sea Claim Area was likely not submerged by the sea during some periods in the last 65,000 years. All parties agreed that at those times the Sea Claim Area was likely inhabited by Aboriginal people. The spiritual significance of submerged landscapes will be considered in Part 16 of these reasons.

969    Nicholson, Liebelt, McCarthy, Benjamin and Hesp further agreed that the coast in the Sea Claim Area is (and was at sovereignty) dominated by high energy ocean conditions. The seas within the Sea Claim Area are generally unsuitable for swimming, apart from some sheltered bays and inlets. Hesp expressed the view that from a position on the land it was not possible to see further than about 5 km seaward (if standing at sea level) or 40 km (if standing on the top of the Bunda Cliffs).

970    By its points of response at [12.5] the Commonwealth admitted that some parts of the Sea Claim Area were accessed by Aboriginal people at the time of effective sovereignty, namely the “immediately offshore islands” (said to include St Peter and Eyre Islands) and areas of sea, rock or reefs that were accessible by walking or wading beyond the low water mark. The description of St Peter Islands as being “immediately offshore” does not accord with my assessment of the evidence.

971    I approach this topic by first setting out the evidence of the physical accessibility and use of places independently of the testimony of the Aboriginal witnesses. The Aboriginal testimony will also be considered, including to ascertain the extent to which it confirms or contradicts the other sources of evidence on the topic.

972    It is convenient to consider first the archaeology of the region. The State, in particular, relies upon that evidence to show that Aboriginal people made little or no use of the sea beyond the Lowest Astronomical Tide.

Archaeology

973    Nicholson and Liebelt agreed that archaeological evidence cannot address questions of linguistic or cultural affinity to an area, nor can it be used to establish pre-sovereignty territorial boundaries.

974    They also agreed that prior to the stabilisation of sea levels in Australia (circa 7,000 BP), the continental shelf off the South Australian coast was likely to have been inhabited by Aboriginal people. However, no archaeological investigations for submerged archaeological sites have been undertaken. Nicholson and Liebelt further agreed that the coastal record demonstrates the existence of an Aboriginal population living alongside the coast, accessing and consuming its resources on the land and in the water. They agreed, however, that there was a scarcity of shell material in the archaeological record along the coastal strip adjacent to the Sea Claim Area, explained by low population levels as a consequence of limited fresh water availability, as well as site preservation factors.

The archaeological record concerning food resources

975    In 1991, Nicholson conducted an archaeological survey of 160 sites between Fowlers Bay and Elliston, 116 of which were located immediately on the coast and the remainder further inland. She categorised the sites as middens (23%), stone artefact scatters (41%) and stone and shell scatters (36%). The eastern portion of her study area falls outside of the Sea Claim Area. Nicolson 1 is a report of that survey. The data collected was later analysed in Nicholson’s Masters Thesis (Nicholson 2).

976    As explained by Liebelt and Nicholson in oral evidence, the word “midden” means “refuse dump”. There are different types of middens. There may be middens taking the form of mounds, created when a group of people settle in an area for a long period of time and throw shell refuse into a mound that solidifies. Over time the mound is eroded by environmental forces leaving a circular or semi-circular scatter. There may also be beach middens, comprised of a wider dispersal of material that is not built up on a mound. In the expert reports, middens were distinguished from campsites, being an archaeological record of human occupation typically containing cultural material such as stone artefacts. It was agreed that middens preserved well in a lime coastal deposit where there was a critical mass of refuse, whereas bones of most macropods and fish species did not.

977    The most common type of midden identified by Nicholson was periwinkle, which is a shell generally found above rocky coastlines. At least four Aboriginal witnesses confirmed that they foraged within the Intertidal Zone:  Neville Miller, April Lawrie, Wayne Haseldine and Simon Prideaux. Turban middens occurred in the vicinity of Ceduna, and estuarine middens were found adjacent to low energy bays.

978    No “substantial” midden sights were recorded. Nicholson expressed the view that despite the apparent abundance of shellfish resources in the region, very little use appears to have been made of them. She continued:

…  The most commonly exploited shell type is the periwinkle which, in other areas (such as the south coast of New South Wales), is considered to be a food only used in times of resource scarcity. This seems strange given that the people were also exploiting gastropods at the largest end of their size range. The sites seem to contain nothing in between these extremes. Large abalone, turban and cartrut shells are scattered across the sites, but no substantial deposits are found anywhere along this coast. This forces one to ask why the Aboriginal people who were obviously aware of the abundant shellfish resources available did not make maximum use of them?

979    Liebelt’s opinion was that the data collected by Nicholson supports the ethnographic record in relation to low population densities in the area, and that it was not surprising that the site densities were low compared with other more densely populated areas in Australia. Liebelt agreed with Nicholson’s opinion that:

… the low population levels which characterised the West Coast played an important role in the development of local subsistence strategies. It would seem feasible that if population densities were low, the impact of these coastal foragers on the environment, specifically the sea, is also likely to have been low. That is, if there were not many people to feed, then only minimal amounts of food need be gathered to feed them. As a consequence, the archaeological record of that food collection and consumption will be equally limited. In fact, the evidence presented so far in this thesis suggests a minimal yet highly selective use of littoral and marine resources.

980    In her 1991 research, Nicholson described the middens as “infrequent, small and diffuse” and the importance of coastal resources in the Aboriginal diet as “minimal”. She opined that there was ample evidence of Aboriginal settlement in her study region, but “little evidence of coastal exploitation”. She considered a number of reasons why that might be so:

…  The fundamental question here is why? There may be a series of individual and/or inter-related factors involved. Perhaps the violent oceanic conditions along this coast prevented Aboriginal exploitation of the littoral shores. Perhaps Aborigines were scared of sharks. Perhaps the shellfish and other marine resources were so limited people could not exploit them to an extent that is archaeologically visible. Perhaps preservation conditions are so poor that most of the archaeological evidence has decayed in the last 100 years. Perhaps the absence of sites is related to behaviour; maybe Aboriginal discard patterns were such that evidence of coastal exploitation is archaeologically invisible. Perhaps occupation on the West Coast was seasonal, with only short visits to the coast each year. Perhaps the coastal dwellers were descendants of a desert tradition, and lived, in effect, with their backs to the coast. Perhaps the reason is demographic. Population levels may have been so low that people did not tax the bounty of their environment. Maybe people had little reason to get their feet wet in the pursuit of food. If there is little evidence of midden material may be it was because Aboriginal people ate very little seafood.

981    In Liebelt 1, Liebelt critiqued a number of Nicholson’s assumptions and conclusions. The two experts appeared to differ in some (but not all) areas of analysis, conveniently addressed by Liebelt under five propositions that she identified as underpinning Nicholson’s survey.

982    The first proposition is that the west coast archaeological record does not include substantial middens. Liebelt accepted that the data shows middens on the west coast are comparatively lower and less dense than those in eastern Australian contexts. However, she said that might be a consequence of lower populations in the area resulting in there being no critical mass of calcareous deposits that were capable of withstanding the effects of erosion and environmental decay.

983    The second related proposition is that the west coast archaeological record indicates a low population. Liebelt agreed with Nicholson’s view that there is a relationship between the population level and the surviving archaeological record.

984    The third proposition is that west coast Aboriginal people employed optimal foraging strategies. In that regard, Nicholson identified that the archaeological record reflected a highly selective pattern of shellfish collection consistent with people preferring to forage for larger and less accessible shellfish species in preference over smaller species. More specifically, the middens showed a preference for large whelks and larger abalone species that inhabited deeper water and that would have been collected at low tide. In Liebelt’s opinion, the data showed that “while selective optimal foraging for shellfish species may have been minimal in terms of quantity taken, shellfish consumption was a relatively dependable food source throughout the West Coast region”.

985    The fourth proposition is that west coast people were part of a “desert culture” and had their “backs to the sea”. On this topic I do not consider Liebelt to have fairly summarised the views in fact expressed by Nicholson. In the passage set out above, and elsewhere in her reports, Nicholson articulated a series of questions that arise from the underlying data, without expressing a concluded view in relation to them. Liebelt criticised the view that Aboriginal people on the west coast lived with their backs to the sea as lacking an appreciation for the cultural and geographical complexity of the region studies. She suggested that Nicholson is wrong to equate the Aboriginal people who occupied the region with the broader cultural group known as the “Western Desert Bloc” which, Liebelt opined, does not appear to align with the basis for the FWC Land Determination. She referred to a “desert ideology” reverberating throughout Nicholson’s thesis, resulting in “embellishments” to help bolster her later thesis question “why did the people of the West Coast not eat shellfish?”.

986    Again, I do not consider that to be a fair reading of Nicholson’s reports. Nicholson made the uncontroversial observation that the landscape she surveyed was semi-arid, characterised by a scarcity of fresh water sources. That was in contrast, she said, to more fertile coastal environments that had been the subject of archaeological surveys elsewhere. The difference between the two experts seems to me to lie in the scientific significance that can or cannot be attached to the limited archaeological record of stratified middens and the absence of any record evidencing the consumption of fish (as opposed to shellfish). I accept Liebelt’s view that it is necessary to have regard to environmental conditions that may result in greater erosion and decay. However, Liebelt’s reports do not include a thorough examination of those conditions specific to the places surveyed by Nicholson and their likely effects on the archaeological record and so the measure of the impact of erosion and decay in my view remains a matter of conjecture.

987    Liebelt drew upon the body of ethnographic records in evidence before me and the anthropological opinions surrounding them. She supplemented that record and commented on what they might say about the “coastal vs desert orientations of the people living in the area”. She said the material contained many references that indicated that coastal people had different orientations and beliefs to Aboriginal people living further inland.

988    I accept that in assessing the evidence of Aboriginal settlement and subsistence in coastal areas, it is neither necessary nor appropriate to speak of any particular language group as belonging to or having cultural affinity with what is known as the Western Desert cultural bloc. The issues to be tried in this proceeding do not depend on an analysis of that kind. However, as the ethnographic material referred to by Liebelt shows, the question of whether Aboriginal people lived with their backs to the sea may well yield different answers depending on the particular Aboriginal people enquired about.

989    The fifth proposition is that west coast Aboriginal people did not use fish resources (as distinct from shellfish). The issue in contention is whether people caught fish in a manner other than opportunistically retrieving them from natural ponds in the Intertidal Zone. Both experts acknowledged that evidence of the consumption of fish is less visible in the archaeological record because of the susceptibility of fish bones in the environment, and that shellfish middens might be indicative of incidental foraging occurring alongside more significant fishing activities. As Liebelt said (in Liebelt 1):

82.    …  In my view, given the position of these middens on rocky headlands, it makes considerable sense that these foraging activities could well have included fishing by able bodied members of the group while children and other less abled persons waited and watched from the shore (perhaps consuming a few easily obtainable periwinkles while they did so).

83.    Considering the ethnographic record for both fishing behaviours and for the reliance on fish meat, I disagree with Nicholson’s conclusions in relation to fish exploitation as being largely optimistic (i.e. only when fish could be found naturally trapped in pools). While the archaeological evidence is absent, I do not believe this absence is sufficient to discount the possibility of a considerable fish reliance in the West Coast Aboriginal diet.

990    I accept Liebelt’s view that the possibility of considerable fish (as opposed to shellfish) reliance in the west coast Aboriginal diet pre-sovereignty cannot be discounted. However, it remains that the archaeological record cannot of itself support a positive finding that the Sea Claim Area (being an area beyond the Littoral Zone and the Lowest Astronomical Tide) was in fact accessed for that purpose.

991    The archaeological record does support a finding that Aboriginal people in the coastal area between Fowlers Bay and Elliston consumed some shellfish. The expert reports do not descend into detail as to that part of the sea in which the shellfish may have been foraged, specifically the likelihood of it being sourced from the Sea Claim Area, that is, seaward of the Lowest Astronomical Tide. To the extent that shellfish inhabiting deeper waters are evidenced in the archaeological record, they are referred to as likely to have been foraged at low tide. Standing alone, the expert reports on the topic do not demonstrate physical access to that part of the sea that constitutes the Sea Claim Area, but they must nonetheless be taken into account when evaluating all of the evidence bearing on the question of physical access to the relevant area for the purpose of exploiting food resources there.

992    In cross-examination, Liebelt confirmed that it remained her view that marine resources constituted only a supplementary part of the diet of Aboriginal people. She later added that whilst only a supplementary food source, it was one that was always there and could be relied upon in times of need. Liebelt did not suggest that there had been large midden deposits that had been eroded or dispersed.

993    Nicholson added that seafood was not exploited to the full extent of its availability because of the energy required to collect enough of it to feed a family “versus picking up a goanna”, such that it was not that people had an aversion to seafood, but rather that they took the easier option. Both agreed that the predominant factor in discerning whether people camped was the location of waterholes and not the availability of marine resources, and that the data was consistent with opportunistic foraging in the Intertidal Zone.

994    As to the depths at which larger species (such as whelk) may be found, Liebelt emphasised that she was not a marine specialist and could not comment on such things as the mobility of the species. However, she accepted that if they were highly mobile they may be taken from the Intertidal Zone and that that was “potentially” consistent with opportunistic foraging. She acknowledged that larger species would most likely have been foraged when the tide was low when people could access the waters. That, together with the lower numbers of shells for those species in the archaeological record was suggestive of opportunistic foraging.

995    Nicholson confirmed that the minimal numbers of larger shellfish in the archaeological record indicated that the Aboriginal people had not developed a toolkit to exploit seafood in deeper waters. She agreed that if technologies such as fish hooks had been developed to enable greater exploitation of deeper species, they would be expected to have been found and recorded.

996    Both Nicholson and Liebelt gave additional oral evidence about fish traps on or near islands, as discussed elsewhere in these reasons.

Sea conditions

997    Mr Jorg Hacker is a qualified pilot. Annexed to his affidavit was video footage taken on a flight he made in a light plane westward between Ceduna and Western Australia in 2016. The footage was taken from a side-ways looking GoPro Camera and depicts the Bunda Cliffs commencing about 3 km west of Head of the Bight Lookout and ending about 23 km east of the State Border. The footage depicts the height and formation of the cliffs, showing them as sheer vertical and concave at the base.

Trevor Puckridge

998    Mr Trevor Puckridge is a senior fisheries officer employed by the Department of Primary Industries and Regions and has been stationed at Ceduna for 15 years in that role. He has also worked as a cray fisherman around Ceduna and a police officer at places including Ceduna, Penong (in the Yalata lands) and other places on the west coast, through to the State Border. He has fished recreationally in the area for most of his life. As a fisheries officer, he is responsible for monitoring compliance with fish management laws of South Australia, Western Australia and the Commonwealth between Venus Bay and the State Border, extending seaward to 200 nautical miles. He is qualified to take a boat to 30 nautical miles, which he patrols as his “operational area”.

999    Mr Puckridge gave evidence of the distances over which the tide goes out at various points along the coastline, in some places exposing sand banks. He said that at Laura Bay when the tide is out there are sand flats approximately 100 m – 150 m from the shore. He described a number of places where the tide would go out approximately 100 m – 150 m (including around St Peter Island, at Davenport Creek and Shelly Beach). He said that west of Fowlers Bay there were long sandy beaches with rocky headlands. Some areas there had rocky reefs off the beach (such as Cheetima Beach, Cabbot’s Beach, Scott’s Beach and Mexican Hat). The reefs gave the beaches some protection from the swell when the tide was out. He said that in the more open beaches (such as Penong) the ocean pounded the shore. He gave evidence that at some places access to the water was difficult or impossible because of the high cliffs. He asserted that he had never seen anyone fishing from those areas.

1000    Mr Puckridge described Dog Fence Beach and the Yalata beaches, which run west of Head of the Bight. He said some of those places are good for surf fishing, but only with a surf rod and a 20lb line. He described the Yalata beaches as remote and said that he had not seen Aboriginal people fish there until the 1990’s.

1001    Mr Puckridge said he had never seen a place at the Bunda Cliffs where you could climb down to access the water. He asserted that it would be a vertical climb to get back out. He said that even if you could access the water below, it was regularly rough and swimming there would be dangerous because the waves and currents there would push you up against the cliff face. He added that Wilson’s Bluff was not a popular fishing spot because it was so remote.

1002    In a second affidavit, Mr Puckridge annexed numerous photographs of the shore at different locations along the length of the Sea Claim Area.

Perry Will

1003    Mr Perry Will was born in Ceduna and has spent most of his life there. He has been operating a charter fishing and tourism business since 1980 and was the Mayor of Ceduna when he affirmed his affidavit in 2021. He also works as a skipper with the State Emergency Service (SES). He said he has been “nearly out to the Head of the Bight” for rescue missions in this role. Mr Will said he knew the waters around Ceduna well and had taken groups fishing as far as St Francis Island, as well as St Peter Island and other islands of Nuyts Archipelago. He asserted that the sea around Ceduna and the islands was rough and unpredictable. He said there are six tidal bays in the area, naming Tourville Bay, Murat Bay, Bosanquet Bay, Decres Bay, Laura Bay and Smoky Bay. He explained that the tide is generally high in the middle of the day and turns south in the afternoon when “particularly treacherous conditions” are created from the interaction between the tide and the sea breeze.

1004    Mr Will said that the waters around Tourville Bay and Point Peter could “get very rough” and that “the water is really rough” between St Peter Island and Goat Island, St Peter Island and Eyre Island, and the Franklin Islands. He said that he has fished by boat from Pearson Island (off Elliston) to Fowlers Bay and west to Twin Rocks. He said most of the fishing to the west of Fowlers Bay is now beach fishing due to Marine Parks and such fishing requires big surf rods, strong lines and large reels for sharks, salmon and mulloway. He concluded his affidavit by explaining that the Mosaic Lighthouse at Pinky Point is a memorial to the lives lost at sea and is a testament to “the unforgiving seas of the West Coast”.

Professor Patrick Hesp

1005    In two of his reports, Prof Patrick Hesp categorised the waters of and near the Sea Claim Area using an established hazard matrix. The matrix enables an area of beach to be categorised by a hazard rating, the lowest rating being 1 and the highest being 10. Low hazard rated beaches fall in the range of 1 – 3, moderate hazards between 4 – 6, high hazards between 7 – 8 and extreme hazards at 10. Hesp emphasised that the degree of danger (including the possibility of drowning or injury) also depends on a person’s abilities in the water, such that a beach with a hazard rating of 3 may be dangerous for a person who is a poor swimmer.

1006    His assessment of the whole of the Sea Claim Area was that it is characterised by moderate to high wave energy with a strong seasonal cycle of significant wave height. He said that wave energy has gradually increased since 1985. His opinion of the data he presented was that a significant portion of the region is “a high energy, wave dominated coast with significant hazards for boating, swimming, and wading past knee deep in the surfzones”.

1007    Hesp described shorelines along the Great Australian Bight as “microtidal” with tidal range varying from 1.1 m – 1.8 m.

1008    He went on to characterise specific places along the coast on or adjacent to the Sea Claim Area. His opinions may be briefly summarised as follows:

(1)    The beach and surfzone at Merdayerra Sandpatch has a hazard rating of 7. It is a transverse bar-rip surfzone beach dominated by rips and characterised by sections of reef. It is likely that it was possible to access those beaches at times of low wave energy. However, at other times it would have been impossible to access the beach, the rock platforms or subtidal rocky habitats in the area. A similar opinion is expressed about a small beach to the east of Merdayerra Sandpatch.

(2)    The few beaches between the State Border and Head of the Bight have a high hazard rating of 7. Swimming could be possible in the surfzone opposite the Merdayerra Sandpatch by a strong swimmer.

(3)    The sea at the base of the Bunda Cliffs is “akin to a massive washing machine”, very rarely on a gentle cycle and on average a “high energy engine”. Waves of 2 m – 3 m occur for 90% of the year. The waters of the Great Australian Bight are rarely calm. Wave heights of less than 2.5 m over five consecutive days occurs (on average) only 35 days per year.

(4)    The Head of the Bight is characterised by relatively deep water and high energy waves adjacent to the cliffs. Those conditions together with the danger associated with the climb indicate that use of this region would be very low.

(5)    The beaches in the region between Head of the Bight and Davenport Creek vary. Many are of a kind that have moderate to high rates of 6 – 8. Those with rips and troughs have high hazard rating of 8 – 9. Other beaches in the region have low ratings of 3 – 4 “and use of intertidal areas on both sandy beaches and rock platforms would have been possible”.

(6)    Between Cheetima Beach and Fowlers Bay the beaches have moderate to high hazard ratings. Shellfish collecting within the Intertidal Zone and out to wading (knee) depth would potentially be possible at Fowlers Bay and Clare Bay, provided that there was an awareness of rips and the dangers associated with them.

(7)    The beaches from the eastern end of Eyre Bluff to Chadinga Sandhills have high hazard ratings of 8.

1009    From my examination of the maps prepared by Hesp, it appears that there are a number of areas of the coast where the hazard level is low, particularly in the most eastern areas through to Rocky Point, around St Peter Island, and in some places at or near Fowlers Bay.

1010    There are early recorded observations of the wave energy conditions in the sea at the time of and following effective sovereignty, some of which are touched on above. No party suggested that the wave conditions of the present day differ in any relevant respect. I consider it preferable to act on expert evidence on that topic, specifically that contained in the reports of Hesp, rather than the sporadic and limited observations of those who cared to record them more than 180 years ago.

Peter Codrington

1011    Mr Peter Codrington is a retired police officer with experience in marine policing and rescue in and around the Sea Claim Area. He gave evidence about the death of an abalone fisherman in 2000, believed to have been taken by a shark after the capsize of a boat, following which a Marine Rescue Capability unit was established at Ceduna to respond to future incidents at sea involving boats in trouble. Mr Codrington has worked for that unit and has also responded to incidents on the water through his membership of the Ceduna branch of the SES. He gave evidence of his observations of the conditions at sea and the location of places falling within the Sea Claim Area, specifically the distances to islands and the proliferation of sharks.

1012    Annexed to his affidavit was a navigational chart showing the waters around Ceduna. Among other things, it depicts St Peter Island and its closest point to the mainland, Cape Vivonne. The measurements on the map are those that apply at the Lowest Astronomical Tide. The effect of Mr Codrington’s evidence (understood in conjunction with the navigational chart) is that the distance between St Peter Island and Cape Vivonne is 4.4 km. At the Lowest Astronomical Tide, the water reaches a depth of 5.1 m. Mr Codrington described the area as a narrow strait with a tidal flow in the range of two to three knots when the tide is running. He said that the period when the tide is not running is short (measured in minutes). He described the area as rocky and treacherous and said that there was no land mass to stop the swell to the west and east of the island.

1013    Mr Codrington said that it was a further 1.48 km from St Peter Island to Goat island (outside of the Sea Claim Area), that there were rocks in that part of the water and a fair tidal stream there as well.

The Court’s observations

1014    Annexure M to the State’s closing submissions sets out observations that could be made at three views conducted by the Court on 22 and 23 March 2022. The views were respectively taken at 31 degrees, 36 minutes and 22 seconds south and 130 degrees, 45 minutes and 17 seconds east; 31 degrees, 36 minutes and 28 seconds south and 129 degrees, 46 minutes and 37 seconds east; and approximately 20 m east of 31 degrees, 36 minutes and 28 seconds south and 129 degrees, 46 minutes and 37 seconds east. The observations recorded in the annexure accord with my own conclusions based on those views and I adopt the State’s descriptions of them as follows.

1015    At the view taken at 31 degrees, 36 minutes and 22 seconds south and 130 degrees, 45 minutes 17 seconds east, the Court observed:

i.    Expanse of the cliff line.

ii.    Height of the cliffs (approximately 90 to 100 metres).

iii.    Different colour rocks in the cliff to the east (limestone rock).

iv.    Friable cliff line.

v.    Top point of cliff protruding further than bottom point.

vi.    Wave energy coming on to cliff face and into rocks down the bottom of the cliff face, all along the coastline.

vii.    Foamy material around the rocks and going out to sea.

viii.    No ledge along the base of the cliff.

ix.    East and west profile of the cliffs, generally.

x.    Various rocks sitting at base of the cliffs and at ledges above the cliffs.

1016    At the view taken at 31 degrees, 36 minutes and 28 seconds south and 129 degrees, 46 minutes and 37 seconds east, the Court observed:

i.    Height of the cliffs.

ii.    Friable cliff edge, and chipped portions of cliff edge.

iii.    White, limestone rock.

iv.    Boulders at the bottom of the cliffs which have fallen off and landed in the sea.

v.    Wave energy hitting rocks and cliff face.

vi.    White foam and how far seaward foam carries from cliffs.

1017    At the view taken at approximately 20 m east of 31 degrees, 36 minutes and 28 seconds south and 129 degrees, 46 minutes and 37 seconds east, the Court observed:

i.    Water entering a cave at the bottom of the cliffs.

ii.    Wave energy at bottom of the cliffs.

iii.    Sand disturbance at bottom of the cliffs.

iv.    Rocks falling seaward and cracking in cliff face.

1018    The Court’s observations were necessarily limited by vantage point. From the Bunda Cliffs the Court observed a heaving Southern Ocean crashing onto the concave base of the cliffs.

Sharks

1019    According to Gara, the first recorded death as a result of shark attack in South Australia occurred in 1926. There have been a further 20 deaths by shark attack since that time, mostly involving great white sharks. Fatalities have occurred at Streaky Bay, Coffin Bay, Elliston, Smoky Bay, Cactus Beach and Point Sinclair (not all of which are in the Sea Claim Area). Gara referred to early accounts of close encounters with “monster” sharks. He added:

141.    The only other reference I have found to Aboriginal people swimming in the sea comes from 1911, when a visitor to Fowlers Bay saw ‘a few blacks bathing close inshore’. M/T Gardner, the policeman at Fowlers Bay in the 1890s, pointed out that the Aboriginal people at Fowlers Bay:

have a superstition about fishing that if they go into water there is some marine monster of which they are afraid, and have a great antipathy to water at all times.

142.    This ‘monster’ may have been a mythological creature, but a real monster, the great white shark, is common in the west coast waters. Most of the larger towns on Eyre Peninsula – Port Lincoln, Streaky Bay, Smoky Bay, and Ceduna – today have shark-proof swimming enclosures in the sea where people can swim and play in safety. Port Sinclair has a shark-proof enclosure, erected after a teenage boy was taken by a shark there in 1985, and there have been at least nine recorded fatal shark attacks on Eyre Peninsula and the far west coast since the 1970s.

(footnotes omitted)

1020    Both Mr Puckridge and Mr Codrington gave evidence that the channel running past St Peter Island was notorious for white pointer sharks. Mr Codrington described them as being “prolific” in the area and said he saw the sharks while out on the water and often heard reports of them. Mr Puckridge said that sharks were common in his operational area and he had had numerous encounters with them, marking on a map places where those encounters had occurred.

Watercraft

1021    The weight of the evidence (as agreed by the experts in their pre-trial conference) is that no watercraft were used by Aboriginal people in the Sea Claim Area prior to effective sovereignty at all.

1022    Gara explained that neither Flinders nor Baudin reported seeing any Aboriginal watercraft during their exploration of the south coast of the continent. In Flinders’ words (1802):

In expressing an opinion that these people have no means of passing the water, it must be understood to be a deduction from our having met with no canoe, or the remains of any about the port; nor with any tree in the woods from which a sufficient size of bark had been taken to make one.

1023    A continent-wide study published in 1905 identified that there was no watercraft use anywhere along the coast in the vast distance from Roebourne in the Pilbara region in Western Australia, along the Great Australian Bight and through to the region of the Lower Murray where canoes and reed-rafts were widely used. The author of that study reported that the art of swimming was also unknown.

1024    Other studies in 1908 and 1935 reached similar conclusions, finding no evidence of watercraft of any description in a 1600 mile stretch of coastline. Authors of the latter survey said that the watercraft used in quieter fresh water areas would have proven unseaworthy in the conditions of the Southern Ocean.

1025    Ethnographic records showing the apparent absence of Aboriginal access to islands in the Sea Claim Area are consistent with there being no use of watercraft as a means of navigating any substantial distance offshore or at all. The absence of watercraft is also consistent with the absence of tree species capable of providing sufficiently strong bark for the construction of a craft to support one or more people. Gara stated that it was possible that simple swimming-logs, perhaps of mangrove wood, were utilised to access deeper waters but there was no support for that in the historical or ethnographic record.

1026    Gara considered reports of the use of paperbark rafts observed in the Esperance area in the late 1930’s. He said that he was unable to find ethnographic or historical searches of the use of such craft in that area, repeating that the 1908 survey contained firsthand accounts to the effect that there were no canoes. He added that in the vocabularies of informants located near the Sea Claim Area there was no Aboriginal word for “canoe” and pointed to features of the sea and landscape that differed from the more sheltered areas in the Esperance region in any event.

1027    I have had regard to an account of watercraft use in the Esperance area as described in Graham 1. However, that account is to be considered in light of all of the research conducted on the topic and all of the other evidentiary materials supporting a finding that watercraft were not used by Aboriginal people in the particular area with which I am concerned. Among that additional material is a report of Bates that there were no canoes among “the Southern coastal people”.

1028    Graham accepted that there were no known observations of watercraft in use at the time of first European contact.

1029    As stated by Redmond, there is an account of an Aboriginal man from Western Australia telling linguist LA Hercus about the construction of a bark type boat, but the evidence does not appear to relate to the Sea Claim Area, nor is it apparent that the boat referred to was one ever used by Aboriginal people in that area.

1030    The South Australian Museum has an extensive collection of material from the region in the vicinity of the Sea Claim Area, but it shows no evidence of watercraft or fishing implements.

1031    Evidence to that effect was provided by Dr Philip Jones, a Senior Researcher at the South Australian Museum who has a PhD in history and studies Australian ethnographic collecting. His focus at the museum is on “material culture”, a term used to describe the tools, utensils and other materials used by Aboriginal people to survive and for cultural purposes. He said that the museum, which opened in 1862, began receiving substantial amounts of Aboriginal artefacts from the 1880’s. The collection of artefacts is now vast and originates from regions all over Australia. Dr Jones said that he had gained a thorough knowledge of the collection through his employment at the museum since 1982 and that he had established a searchable database of 2,200 separate collections held there.

1032    He said that the collection of Aboriginal artefacts originating from coastal areas between Streaky Bay and the State Border do not include any items in the nature of fishing hooks or lines, boats, canoes or any other kind of watercraft, fishing nets or ropes of any kind. He said that to the best of his knowledge the collection did not include any such items from reefs or islands off the shore of that coastline. He said that the collection did include examples of string or twine made from human hair which were used as belts but were not capable of bearing significant weight. He said that items of the kind he described could be found in the museum’s collection originating from other parts of Australia.

1033    Dr Jones was cross-examined on his affidavit by Counsel for the applicant. The cross-examination comprised of general and tentatively worded propositions which ultimately neither added to nor detracted from the evidence he had given in his affidavit in any significant way.

Access to the sea at the base of the Bunda Cliffs

1034    Gara gave the following description of the Bunda Cliffs which accords with other material before me:

The Bunda Cliffs extend from the Head of Bight westwards almost to the state border, rising gradually in height from about 60 m at the eastern end to 80 m at Wilson Bluff near the border. The cliff-line is not straight but scalloped into an endless procession of small bays and headlands. There are two strata prominent in the cliff profiles; the lower, paler-coloured stratum is the Wilson Bluff Limestone, laid down during marine transgressions in the Cretaceous and Eocene periods, and a darker, upper stratum, the Nullarbor Limestone, was deposited in Miocene times. The Wilson Bluff Limestone is softer than the overlying Nullarbor Limestone and the pounding seas cut away at the lower levels, causing collapses and rockfalls along the cliffs. Extensive piles of rubble at the base of the cliffs, washed by the waves, are evidence of past collapses.

(footnotes omitted)

1035    Early explorers (including Eyre) referred to the impossibility of descent from the top of the Bunda Cliffs to the water below. It must be inferred that they did not witness any Aboriginal people descending them.

1036    Bates’ records contain descriptions of Aboriginal people descending the cliffs to reach the sea at six named “landing places” between Sponge Cove (near Head of the Bight) and Merdayerra Sandpatch. Bates recorded that fishing for seal and little penguin took place in some seasons, adding that “descent was extremely dangerous at some of the landing places”.

1037    None of the experts assisted the Court to identify where each of the landing places referred to by Bates was located at the time that her records were created. Gara opined that the locations of the landing places are unknown today and may no longer exist given the instability of the cliff face. He acknowledged that other gullies allowing access to the sea may have opened up along the coastline, including at Wilson’s Bluff.

1038    Graham expressed the view that “there would have been many such locations known along the coast” with descent being easier to the east than to the west. Sackett described that view as speculative. He asserted that nobody to his knowledge recorded the existence of landing places other than those recorded by Bates, including along the stretch of cliffs to the east of Sponge Cove. I agree that it is speculative to assert that there would have been many locations of the kind described by Bates along the coast, whether to the east or the west of Sponge Cove. I reject Graham’s opinion on that limited factual issue.

1039    More generally, Graham highlighted in his first report that Aboriginal people must have regularly used the sea even if they had access issues due to the cliffs. Quoting Bates, Graham asserted that “good fishing with spears was always obtainable”. He said Clem Lawrie had spearfished from a number of these climb downs and had told him so.

1040    Mr Codrington gave evidence of rescue and wildlife preservation activities at Head of the Bight and along the Bunda Cliffs. He provided the following description of that area:

(1)    The cliffs are a sheer drop and are over 100 m high. Their edges are unstable and crumbly, making the base of the cliffs particularly dangerous.

(2)    It may be possible to walk around parts of the base of the cliffs where there are rock shelves, but only on the calmest days.

(3)    It would be impossible to climb down the cliffs without modern abseiling equipment. Even if a person was able to climb down, they would not be able to climb back up without modern equipment.

(4)    The ocean swells slam into the base of the cliffs all the way along. It would be too dangerous to get a boat from there as the waves would push the boat against the cliffs and then away from them. A boat propeller would also not work there as the water is too foamy and not dense enough.

(5)    The currents at the base of the cliffs are strong such that a person would not survive more than five minutes if they tried to swim at the base. White pointer sharks are also active in the area.

(6)    The swells can be as high as 5 m – 6 m when there is a low pressure system. On clearer days the swells are at least half a metre but bigger ones can also appear.

1041    The State submitted that at the base of the Bunda Cliffs there is no Intertidal Zone because the area is at all times submerged and there is no beach at any time. I accept that submission as it applies to a large portion of the Bunda Cliffs. However, the LAT maps before me indicate that in some places the Lowest Astronomical Tide does not follow the absolute base of the cliffs.

1042    I do not preclude the possibility that a person who descended the cliffs (assuming that could be done) could stand at a landing place formed by fallen rocks or the like at their base, or cling to landings in the formation of the cliffs themselves and from there venture to a place beyond the Lowest Astronomical Tide where the conditions would be as described by Mr Codrington and other witnesses. However, whilst I accept that is possible it is not a firm basis upon which to conclude that Aboriginal people accessed waters beyond the Lowest Astronomical Tide, even if descent to the base of the cliffs was a possibility.

1043    The depth of water at the base of the cliffs was the subject of other evidence of Commonwealth mapping in the area, putting the depth at 40 m.

1044    Clem Lawrie is the only witness who gave a firsthand account of his swimming at the base of the cliffs (once when in his 30’s). He said that the water where he swam was 30 m deep. For the purpose of considering the State’s submissions about that area, I proceed on the basis that the water from the base of the cliffs well exceeds a depth of 2 m at all times.

1045    The general consensus amongst the witnesses was that the location of “walkdowns” or climb downs could change depending on erosional forces. Importantly, however, the evidence of the present-day members of the Claim Group as to the location of climb downs was very limited, confined mostly to that given by Clem Lawrie or based on what he had told others. As Sackett correctly observed, there is no evidence to support a finding that cliff climb downs were a common practice and they are better described as a “singular” activity. Whilst a number of other Aboriginal lay witnesses referred to the presence of climb downs along the sheer expanses of the Bunda Cliffs, none of them identified where they were and none of them deposed to personally having used them to access the water at the base, whether for fishing or otherwise.

1046    On the material before me I am not satisfied that the climb downs were situated in places other than the eastern and western most edges of the Bunda Cliffs, with those having topographical features similar to those depicted in the video climb down evidence of Clem Lawrie submitted by the applicant’s solicitor. The applicant’s solicitor deposed to having descended the cliffs himself together with Clem Lawrie when creating the videos on 9 December 2021. The estimated location of a climb down was given in co-ordinates placing it approximately 40 km west of Head of the Bight. No other specific evidence was provided about where the cliffs could be descended to the east or west of that particular point.

1047    The places where Clem Lawrie is shown to descend were places where it is possible to stand upright for the most part and in other places to manoeuvre from a more crouched position. The landscape depicted in the video did not at all resemble the sheer cliff faces observed by the Court itself on the view referred to earlier in these reasons or the images depicted in Mr Hacker’s flight footage. That footage depicted the cliffs as having a consistent height and formation throughout with a significant change in the landscape after the one-hour mark, where the land graded away to shorter and tapered cliff faces. From that point there are some tributaries in the landscape where the gradient could be descended on foot. Based on its position in the footage, I infer that area to be close to Merdayerra Sandpatch.

1048    I am not satisfied that the point at which the applicant’s solicitor filmed Clem Lawrie’s climb down properly represents the vast distance of the Bunda Cliffs through to about 23 km from the State Border. The footage shows areas where parts of the cliff have fallen away, but not in a way that makes them any less steep. Rather, the rock falls accumulate at the base of the cliffs beneath a sheer drop.

1049    I accept that it is possible in geological terms for there to be rock falls and other erosional forces that may create a place for a person to descend the cliffs. However, that possibility is not sufficient in and of itself to support a finding that Aboriginal people descended the sheer cliffs along the vast expanse of coast where the Nullarbor Plain meets the sea, other than at the eastern and western most portions where the cliffs taper away.

1050    In concluding that Aboriginal people did not at sovereignty descend the cliffs other than at its eastern and western portions, I have also taken into account the variety of food sources available on the land as well as the presence of seals and penguins in the sea, as disclosed in the expert reports before me. In the oral evidence, there appeared to be a consensus that penguins and seals were a source of fats and that they might therefore be an attractive food source. However, the evidence also showed that seals and penguins could be taken from rocky promontories.

1051    Even if there was sufficient evidence to support a finding that the cliff faces themselves were accessed for the purpose of obtaining food (or for any other purpose), the evidence does not go so far as to support a finding that any such descent was made for the purpose of entering the water below. I am reinforced in that view by other evidence concerning the nature of the sea forces crashing against the Bunda Cliffs, particularly that of Hesp. Accordingly, whilst I accept that it is theoretically possible for a person to descend at parts of the cliffs that might open up along the vast expanse of the cliffs and go into the water to catch a source of fat in the form of a penguin or a seal, that mere possibility is not sufficient to ground a finding that any part of the sea waters extending from the base of the Bunda Cliffs was in fact accessed by Aboriginal people. I emphasise that that finding is limited to the part of the sea extending from the base of the Bunda Cliffs other than their eastern and western most extremities.

1052    As to those eastern and western most extremities, I have taken into account that they are areas that are adjacent to or that fall within regions where, at sovereignty, there existed a system of land tenure described elsewhere in these reasons.

1053    Nothing that I have said above should be understood as contradicting or undermining the FWC Land Determination, which includes the whole expanse of the Bunda Cliffs including their most vertical faces. It is simply to observe that whilst the evidence supported findings of use of those cliff faces, as well as caves within them and rocky promontories extending outwards from them, the evidence of physical access and use did not extend into the waters at their base.

1054    I have not overlooked that in the affidavit evidence adduced in this proceeding, Bunna Lawrie said that ropes were made from animal hide, tree roots, bark and reeds and that the ropes were used as climbing belts and for making nets.

1055    Nor have I overlooked April Lawrie’s affidavit evidence that her mother showed her how to make ropes from creeper vine and that the ropes were used to climb down cliffs and fasten rafts together. She said that ropes had always been used to climb down steep sand dunes and cliffs along the Great Australian Bight. She gave oral evidence to the same effect.

1056    Counsel for the State submitted that April Lawrie’s evidence should be understood as referring to the use of vine ropes to access less steep areas in the vicinity of Merdayerra Sandpatch, that is, in the steeper portions of the sand dunes. The State submitted that such a finding accords with the topography of that region. I accept that submission.

1057    Any suggestion that ropes or vines could be used to descend the sheer faces of the Bunda Cliffs does not accord with the ethnographic or historical records, nor the evidence of Mr Codrington nor the nature of the cliffs as observed by the Court.

1058    About 100 km west of Nullarbor Roadhouse there exists an underground cave with a fresh water lake at its base, some 80 m below the earth’s surface. Known as Koonalda Cave, it was the subject of records kept by Bates who said that Aboriginal people descended into the cave using “saplings fastened together or by hair ropes” or “rough saplings tied together with hairstring belts”, or a series of them allowing access from one rock ledge to the next. Gara related his own experiences descending into the cave with the aid of a strong steel ladder. He referred to Bates’ curious choice of words in a 1918 newspaper article in writing “traditions say that one native made the descent” (my emphasis). Gara’s view was that Bates may have been talking about a mythological event rather than an actual event. Whilst I share that view, Gara also referred to evidence of flint quarrying at Koonalda Cave, suggesting it may have been climbed for exploitation of that important resource.

1059    Some Aboriginal witnesses gave evidence about the inside of the cave (including Dorcas Miller based on information told to her by her father). I conclude that Koonalda Cave is accessible but that of itself does not provide proof that Aboriginal people climbed down the Bunda Cliffs to their base in order to enter the water below.

Swimming, wading and diving

1060    The ethnographic record about swimming in the Sea Claim Area is variable.

1061    At the pre-trial conference of experts it was agreed by Nicholson, Liebelt, McCarthy, Benjamin and Hesp that the waters in the Sea Claim Area are generally unsuitable for swimming, other than in sheltered bays and inlets.

1062    Gara gave an early settler’s account of an athletic Aboriginal man swimming with great skill to deliver documents near Port Lincoln. Two further accounts were given of Aboriginal people drowning in sea waters. Apart from accounts of Aboriginal people wading and fishing with the aid of torches (referred to elsewhere in these reasons), there are few other references to swimming that can be found in the early historical records. Among them is a crudely worded account from 1911 referring to a “few blacks bathing close inshore”.

1063    In his wider explorations, Eyre observed that whilst some Aboriginal people could swim with proficiency, it sometimes occurred that there were groups who could not, particularly in areas that were “badly watered”.

1064    Bates positively dealt with the subject as follows:

…  They swam in the estuaries and rivers, but the mamman waddarn (father sea) was always too angry for them to venture into it, and they never troubled about the islands beyond swimming distance. There is a tradition both on the Swan and Murray Districts that a native once swam out to Rottnest Island and returned saying that ‘the place was full of sharks’. No other native followed his example. Garden Island and other reefs and islands on the south-west coast were supposed to have been at one time connected with the mainland, but since they became islands no native has ever swum to them.

1065    Graham referred to Bates reporting an inland group calling coastal people the “Great Diver” people. He said that was a strong indication that the coastal groups were good swimmers who obtained food and other resources from the sea. He went so far as to say that Bates “found” that diving was a west coast practice. In my view, that opinion has insufficient foundation in the materials.

1066    The words Bates used were as follows:

The coastal tribes included in the Jinyila Nation are called Wilyaru (coast people), Bilia-um (sea people), Wailbi-um (water people) and Yau-um (Great Diver people, yau-a – Great Diver). The first and second terms are applied by themselves, the third term by their western neighbours and the last term by the north-eastern neighbours.

1067    Gara disputed the use that Graham sought to make from that passage. In his opinion, Bates was referring to a known species of bird with the name “Great Diver”, now known as a loon. He said that the people to whom Bates referred were not people who excelled at sea diving but members of a totem group that had a bird as its totem. He referred to similar sounding words in the Aboriginal vocabulary referring to different bird species. Sackett also suggested that Graham “is making more of the name/label than is warranted”.

1068    I prefer the opinions of Sackett and Gara on that issue, particularly because it aligns with Bates’ firsthand observation that the southern coastal people did not swim great distances, that observation in turn being consistent with a lack of evidence of deep water swimming or diving in the earlier ethnographic records.

1069    I will consider the above body of material in the context of evidence concerning contemporary use of the sea without modern aids.

Natural fish traps

1070    Liebelt confirmed she had seen videos of Peter Miller standing at or around Point Brown. She agreed with the propositions that the fish trap that Peter Miller identified was naturally occurring and that it was “essentially small rock pools which are variously in the tidal zone or a little bit beyond it, towards the sea”. Liebelt added that it would be necessary to examine the rocks more closely to ascertain whether they had been picked up or placed there.

1071    Nicholson acknowledged that she had seen the video of the fish trap identified by Peter Miller and another depicted by Wayne Haseldine at Davenport Creek. She confirmed that along that area of the coastline there were naturally occurring rock pools in the tidal zone that could be used as fish traps. She also confirmed that she had seen nothing in the video (noting its limitations) to suggest any human activity to create a fish trap.

1072    Sarah Martin is an archaeologist who undertook field work in areas around Ceduna and Streaky Bay. She is quoted in Sackett 1 as follows:

the fact that we could interview Aboriginal informants still in touch with Aboriginal fishing techniques used in the area, resulted in the location and recording of a range of types of natural fish traps. The oral history part of the programme made this survey a success as without the Aboriginal informants we would have walked straight past these natural fish traps and thus concluded that [fish] traps were a rarity on the West Coast … [S]ome of the natural reefs forming fish traps had been, according to the informants, enhanced by the placing of stones in the gaps in the reef etc, but direct physical evidence of this was no longer obvious (1988: 68).

1073    Sackett observed that most of the reefs identified by Martin are not necessarily identified as being outside of the Littoral Zone, other than two described by Martin as situated in the “open ocean”. Sackett described the evidence of there being a natural fish trap on Eba Island (now outside the Sea Claim Area) and the Aboriginal construction of a man-made fish trap near St Peter Island as relatively weak. I share that view.

Accessibility of islands

1074    Islands within the Sea Claim Area include St Peter Island and Eyre Island.

1075    The experts agreed that at effective sovereignty, people likely accessed the “near shore islands” by limited swimming or wading. In its terms, that agreement did not identify which “near shore islands” were referred to so as to enable the Court to conclude with confidence that they fell within the Sea Claim Area (since amended). The agreement could not have encompassed St Peter Island, being more than 2 km from the line representing the Lowest Astronomical Tide according to the LAT maps.

1076    The ethnographic records contained two reports of Aboriginal people accessing islands in the Sea Claim Area. One was an account of a police inspector surprising Aboriginal people fishing on the beach near Streaky Bay, two of whom “immediately waded out to sea and never stopped until they reached a small island”. Gara suggested (and I agree) that the island referred to is most likely Eba Island or the smaller Pigface Island nearby, both of which are presently accessible by foot at low tides via shoals and sandbars. The islands in the vicinity of Streaky Bay are proximate to the shore and do not fall within the Sea Claim Area (as amended).

1077    The second account was of an Aboriginal man stationed to work on St Peter Island who one night stole a boat to make his way back to the mainland. That account does nothing to inform the accessibility of St Peter Island pre-sovereignty.

1078    Neither Flinders nor Baudin recorded evidence of Aboriginal people accessing or occupying islands in the Sea Claim Area in their explorations between 1801 and 1803. An officer on Baudin’s vessel, Francois Peron made this record of his observations of islands in the area, including a reference to St Peter Island:

There is no sign at all of inhabitants on these islands [St Peter Islands], and the great number of kangaroos and phalangers seems to me to be obvious proof that they are not visited by either the natives of the neighbouring continent or their fearsome dogs.

Furthermore we have seen that the same as true of all the Bass Strait islands, Kangaroo Island, all the other islands of the south-west coast and all those scattered about Edels Land and Eendracht Land. And the same is true again … of the archipelagos of Nuyts Land and those of De Witts Land. The principal reason for the absence of natives from these places, where they could so easily obtain plentiful and wholesome food, seems to be their complete ignorance of navigation. Indeed it is worthy of comment that over this immense area of coastline, which runs north from Wilson’s Promontory to the tip of Arnhem Land, we never saw the slightest trace of any kind of craft; and in this respect, none of the navigators who preceded us in these same regions was any more fortunate than we were. I merely point this out as a most curious fact. Whatever may be the real reason after all, it was only on the mainland that we were able to distinguish signs of inhabitants.

Eyre Island

1079    Mr Puckridge said it would be possible to swim to Eyre Island at low tide in ideal conditions, including by accessing sandbars on its southern side. He gave evidence that there were strong currents when the tide was running and there were sharks in the area.

1080    Mr Codrington said that the closest point on the mainland to Eyre Island is Cape Missiessy. The distance is 1.57 km and the water in that area reaches a depth of about 4.6 m. He said that when the tide is running, the tidal current in that area is about two to three knots, the ocean swells and westerly winds can make the waters rough. He asserted that there was a short period between tides in that area (measured in minutes) when there was no tidal flow.

1081    Penong Miller claimed to have swum “from the western point of [Laura Bay] right across to the eastern point, well beyond the lowest watermark, with a snorkel and a mask” while spearfishing, as well as having swum “in the bay itself”. However, he did not in terms say that he had swum across the bay southward to Eyre Island. Had he done so, that would have involved a swim of between 10 km and 15 km. As I have mentioned, Penong Miller had passed away at the time of the trial and so that ambiguity could not be addressed in oral evidence.

St Peter Island

1082    According to the LAT maps, the closest point on the shore from St Peter Island is at Kennard’s Point in the vicinity of Cape Vivonne. The approximate distance between those points was confirmed by Arthur Catsambalas and Alan Haseldine.

1083    The whole of St Peter Island was subject to a Crown Lease which commenced on 1 January 1889 and then a series of further leases which expired in 1986. Over that period it was devoted to agricultural purposes and has since converted to a conservation park.

1084    In 1925 Mr Clarke ran a sheep enterprise on St Peter Island. His memoirs contain accounts of the difficulties he experienced moving by boat between the island and the mainland because of the sea conditions.

1085    The State referred to early surveys of water depth in the vicinity of St Peter Island undertaken for shipping purposes. A report to the House of Assembly in 1913 referred to two channels running out from Thevenard (near Ceduna) known as the Yalata Channel and the Waterwitch Channel. At their shallowest points, the water in those channels is 3.7 m and 7.3 m respectively. Charts of the area show that there is no point between Cape Vivonne and St Peter Island shallower than 3.5 m. Those figures are roughly consistent with accounts given by Wayne Haseldine who described the water as getting very deep very quickly, to a depth of about 6 m.

1086    Graham asserted that in the period prior to effective sovereignty, Aboriginal people accessed inshore islands including St Peter Island. He said that “there are some traces of this in the form of fish traps and other archaeological remains”. He added that to the extent made possible by the limited technology of the time, people “accessed the [Sea Claim Area] and exploited its resources” including by “visiting the nearer of the islands and diving into ocean in pursuit of fish and shellfish”.

1087    The fish traps Graham said he observed included a wooden structure in the water near St Peter Island. He based some of his opinions on an assumption that it may well have been constructed by Aboriginal people. The pre-sovereignty construction of a fish trap on St Peter Island would provide an obvious basis to conclude that it was accessed and used by Aboriginal people at that time. However, I do not accept Graham’s assertion that the trap he observed may have had Aboriginal and pre-sovereign origins. It emerged in evidence that the thing he observed had been made with the use of an axe most likely about 30 years ago. That was confirmed in Liebelt’s evidence on the topic, which I accept.

1088    In oral evidence, Liebelt said that in 2018 she had spent five days conducting field work on St Peter Island. She confirmed that whilst on the island she investigated historical structures including a homestead, some ruins and a whaling station. She said that she had inspected a fish trap on the northeastern side of the island and confirmed it was her view that the bedrock of the trap was a natural feature formed by ocean action and erosion. To the extent that the centre of the pool of the trap had been cleared out it was impossible to say when that had occurred.

1089    Aboriginal witnesses including Oscar Richards, Simon Prideaux, Wayne Haseldine and Penong Miller also spoke of fishing in waters around St Peter Island. However, with the exception of Penong Miller (discussed below), they travelled there by boat.

1090    In his affidavit evidence, Oscar Richards said “[t]here is a big fish trap on the island, I believe that this was a traditional fish trap. You can see where Aboriginal people have put the original rocks down. Then I believe that non-Aboriginal people have used equipment to build it up with bigger rocks”. On the basis of that material Sackett accepted that people “may well have employed natural traps, some beyond the littoral, to capture fish”.

1091    The existence of presently known fish traps on and around St Peter Island does not establish that those traps were known to or utilised by Aboriginal people prior to sovereignty so as to furnish proof that the island was accessed.

1092    In his affidavit, Penong Miller said that he had been told by his “old people” that Aboriginal people from Ceduna used to walk along a sandbar at low tide from Kennards Point and then swim across to St Peter Island. He explained that he had done that himself when he was younger and described harvesting wild peaches there. He is the only person who gave direct evidence of having personally accessed St Peter Island without the use of a boat.

1093    Evidence about the sea conditions around St Peter Island was given by Hesp, Mr Codrington, Wayne Haseldine, Alan Haseldine, Mr Will and Mr Puckridge. On the basis of that evidence I find that the seas in the area are at times treacherous and unpredictable, worsening in the deeper waters. The currents in the channels are fast and shark sitings are common. Other hazards include submerged rocks, wind and cliff faces on some parts of the island impeding access. Opinions as to whether it would be possible to swim to the island in calmer conditions differed. Mr Puckridge expressed the view that it is not possible to access St Peter Island without a boat. Mr Codrington said that it would “just about be possible” to swim to the nearest point on the island on the right day, but stressed that “it’s a long way and you would need to be a strong swimmer”.

1094    Hesp gave sea conditions in the coastal areas on St Peter Island (and mainland areas adjacent to it) hazard ratings between 1 – 2, being the relatively least hazardous of the places within the Sea Claim Area. Given that rating, I agree with Mr Codrington’s assessment that swimming to St Peter Island would not be impossible in the right conditions. I therefore accept that Penong Miller was truthful in the account that he gave, notwithstanding that he was not available to be cross-examined on it.

1095    I accept that Aboriginal witnesses were told that their ancestors walked to the island but those accounts are not sufficient to persuade me that the practice in fact occurred. To the extent that the witnesses spoke of people swimming to St Peter Island I afford that evidence little weight including because the accounts were non-specific.

1096    Among other things, I consider that if swimming to the island was considered expedient or desirable, there would be a better body of evidence (both qualitatively and quantitatively) as to the practice in fact occurring.

1097    It has not been suggested that there were food resources on the island that could not have been obtained from the coastal areas on the mainland. No witness spoke of having any knowledge of a Dreaming story that might have presented some impetus to go there.

1098    Considered in the context of the evidence as a whole, I do not consider the evidence of Penong Miller to be sufficient to support a finding that Aboriginal people could or did walk or swim to St Peter Island before or after effective sovereignty. The other evidence about water depths and sea conditions tell against such a finding.

Present day use of the sea by members of the claim group

1099    The Aboriginal witnesses gave evidence about their contemporary use of the sea. In many instances the evidence related to the use of marine resources on the coast without specific advertence to the activities occurring in the Sea Claim Area (that is, beyond the Lowest Astronomical Tide). A review of the evidence shows that much of the activities referred to by the witnesses occurred in the FWC Land Determination Area.

1100    Most of the Aboriginal witnesses who gave evidence about fishing also told the Court about their use of modern day fishing apparatus which enabled them to access resources in the sea at significantly greater distances and depths. Those practices included the use of boats, jetty platforms, dynamite, hand lines, rod lines (including heavier duty lines capable of casting out some 100 m), mechanically propelled spears, snorkels, goggles, flippers and scuba diving equipment. Those activities invariably occurred within the Sea Claim Area and beyond into the wider ocean. Aboriginal people prior to sovereignty did not use apparatus of a kind that would enable them to access the sea to the same depths and distances that can be accessed today by use of modern apparatus.

1101    I am presently concerned to identify the extent to which (and locations at which) Aboriginal people accessed and used the Sea Claim Area prior to effective sovereignty. The evidence of living Aboriginal witnesses about their contemporary use of the Sea Claim Area can inform that more confined question. That is because some reasonable inferences can be drawn about human behaviour in the past by reference to human behaviour in the present day.

1102    The witnesses gave evidence about tidal movements more generally and I accept their evidence of their own observations on that topic. Their evidence about tide levels has enabled me to find that some of the activities they described necessarily occurred on the landward side of the Lowest Astronomical Tide (specifically when the tide is out). However, evidence of fishing activities occurring other than in low tides is more difficult to place in relation to the Lowest Astronomical Tide because of the lack of precision in the testimony and the invisible nature of the Sea Claim Area “boundary”. It is not surprising that witnesses could not state with certainty (or at all) where, in relation to the Lowest Astronomical Tide, their activities in fact took place. In reaching my conclusion about contemporary fishing practices I have assumed that in-the-sea activities can and have been undertaken at times when the tide is at its lowest in current climatic conditions.

1103    Drawing on the evidence of Aboriginal witnesses I find that that the Sea Claim Area is presently accessed and used beyond the Lowest Astronomical Tide and up to a depth of 2 m in the following places:  Point Brown and Black Hill Lagoon (Peter Miller, Oscar Richards, Simon Prideaux); Duck Pond (Peter Miller, Oscar Richards, Penong Miller, Bunna Lawrie, Rose Miller, Meegan Sparrow); Clare Bay (Neville Miller, Wanda Miller, Penong Miller); Fowlers Bay and Coorabie (Neville Miller, Bunna Lawrie), Yalata Beaches including Dog Fence, Coombra, Wandilla, Cheetima, Cabbots and Yalata (Neville Miller, Oscar Richards, Gavin Peel); Mexican Hat (Neville Miller, April Lawrie); Ceduna (Wanda Miller); Denial Bay (Simon Prideaux, Wayne Haseldine, Bunna Lawrie); Yaralina (Gavin Peel); Bird Island (Wayne Haseldine, Arthur Catsambalas); Kennards Point (Alan Haseldine, Arthur Catsambalas); Merdayerra Sandpatch (April Lawrie, Clem Lawrie); Rocky Point (Penong Miller); Davenport Creek (Penong Miller, Bunna Lawrie); Decres Bay (Bunna Lawrie); Laura Bay (Bunna Lawrie); Smoky Bay (Bunna Lawrie) and Streaky Bay (Bunna Lawrie).

1104    I have accepted all of the evidence of the living Aboriginal witnesses on this discrete topic as truthful accounts of their activities and experiences, knowledge and subjective beliefs.

1105    Some of the fishing activity referred to in the evidence is undertaken by means that involve either no apparatus, or apparatus of a kind resembling that which would have been available to Aboriginal people at times prior to effective sovereignty. I describe those activities in the paragraphs that follow.

1106    Many of the Aboriginal witnesses spoke of their practice of collecting small shellfish and crustaceans such as periwinkles, munama, crabs and cockles. That evidence related to areas of beaches and bays extending throughout the length of the coast other than at the base of the Bunda Cliffs. With the exception of reef fishing (discussed below), the smaller shellfish are found on rocks and beaches and can be gathered at low tide without entering the water to any significant depth, if at all. Some witnesses spoke of being taught to find cockles in the sand at low tides by feeling about for them with their toes. That practice was not described as occurring in deep water and in any event depended on the person’s feet being on the sand or on the sea floor while wading.

1107    Razorfish are a larger species of shellfish that can be gathered from the submerged sandy bottom of sea waters. The evidence supports a finding that razorfish can be found embedded in the sea floor at considerable depths. However, no witness said that they ventured into the water to harvest razorfish beyond a depth of 2 m without the use of modern fishing apparatus.

1108    Some witnesses spoke of being taught to catch fish (specifically flounder) at night by attracting them with a source of light such as kerosene lamps and holding the catch on flotation devices such as inflated tyre tubes. That practice was described as occurring in shallow water.

1109    The evidence does not support a finding that there existed fish traps wholly or partially constructed by Aboriginal people specifically situated in the Sea Claim Area. However, some witnesses described naturally occurring fish “holes”, being places where water would remain in rocky surfaces at low tide, naturally trapping and confining fish in a way that made them easy to spear or catch. In video evidence Bunna Lawrie described a naturally occurring fish trap off the beach at Merdayerra Sandpatch, being a formation of rocks in which fish could be found trapped as tides and currents moved. In and of itself his evidence does not support a finding that the rock formations were constructed by Aboriginal people. I do not understand Bunna Lawrie to be speaking from personal knowledge on that question and I do not consider his assertion to be sufficient to prove the objective fact. Nor does Bunna Lawrie’s evidence about the fish trap support a finding that Aboriginal people would venture into the water to a depth of 2 m beyond the Lowest Astronomical Tide in order to harvest fish caught in it. Its location in the water relative to the Lowest Astronomical Tide was not clear to me on the evidence in any event.

1110    April Lawrie said she had been told that when “the old people” were diving they used small raft-like structures to place their catches on whilst in the water. She continued:

29.    …

c.    We used to make rafts from the scrub, fastened by rope made from creepers and kangaroo sinew ….

…

g.    I do not believe European people have seen the usage of such rafts by Far West Coast people …

h.    European people probably haven’t seen us Far West Coast people doing these things because not many Europeans go out that way west of Head of the Bight.

30.    …  When I referred to the rafts above, I’m not talking about big rafts, I am talking about floatation devices to prop our catch on as we dive over and beyond the reefs because it is to far to swim back to the rocks.

1111    Several witnesses gave evidence of fishing with the use of a hand-held hand-propelled spear. The practice involves standing in sea water at a depth sufficient to see fish and to propel the spear into the water from above shoulder height. Collectively, the evidence supports a finding that that practice could be employed throughout the coastal areas, but excluding the area at the base of the Bunda Cliffs. I find that the use of spears by the method just described may have occurred in places beyond the Lowest Astronomical Tide. However, I am not satisfied that the practice took place at depths of water beyond 2 m, given that the practice was described as involving the propulsion of the spear from the shoulder, with feet on the sea floor.

1112    Some witnesses described the practice of accessing reefs which for the most part were described as being exposed (or at least able to be walked on) at low tide. Some witnesses described taking shellfish (including abalone), crayfish and other species from the rocks or water on the seaward side of the reefs.

1113    Many of the witnesses told of their fishing practices occurring in the context of family and community gatherings which included camping in groups on beaches or in nearby dunes.

1114    In his evidence, Bunna Lawrie asserted that he had been taught how to make fishing nets although he acknowledged he had not used one. There is insufficient evidence to support a conclusion that Aboriginal people prior to sovereignty used man-made nets to capture fish. Bunna Lawrie was alone in his assertion that netting might have been a practice employed by Aboriginal people in the Sea Claim Area prior to sovereignty.

1115    Bunna Lawrie and one other witness said that they had been told about Aboriginal people using canoes prior to sovereignty, including to access flint that could be mined from the now submerged seabed at Merdayerra Sandpatch. Bunna Lawrie deposed that he learned from his mother about canoes made from long mallee roots lined with paper bark. He continued:

96.    …  The oar was called watagu and used in boats for going along the cliff sea edge to come to the karsts and entrances to the caves.  

…

231.    Mirning people travelled with canoes to our karsts (limestone sea caves) where fish went in with the tide and when the tide went out they were trapped by our nets.  …

1116    In video evidence recorded at Merdayerra Sandpatch he referred to his people using Canoes to find yellow ochre under the sea. Whilst I accept that evidence as an assertion of belief, it is not in accordance with the considerable amount of evidence on the topic of watercraft. However, I do accept that whilst Hesp has given the sea conditions at Merdayerra Sandpatch a hazard rating at 7, there would be times when Aboriginal people at sovereignty would have accessed waters beyond the Lowest Astronomical Tide to a depth of 2 m.

1117    In conjunction with the above evidence, I have had regard to the evidence cross-referenced in Annexure P to the State’s closing submissions. It takes the form of a table adapted from an aide prepared by the applicant extracting affidavit and transcript references to the Aboriginal witness testimony. In the table, the State has recorded its view as to which of the fishing activities referred to in the evidence took place in the Sea Claim Area and which of them did not. In instances where the State accepts that the activities occurred wholly or partially beyond the Lowest Astronomical Tide without the use of modern fishing aids, it has submitted that the activities were confined to depths of 2 m or less.

1118    I accept the State’s assessment as to which activities were confined to the FWC Land Determination Area. However, I do not wholly accept the State’s submissions that activities undertaken in the Sea Claim Area without the use of modern aids were confined to depths of no more than 2 m. I consider there to be some limited evidence to support a finding that at times deeper depths were accessed on the seaward side of reefs that could be reached and walked on in times of lower tides. That evidence and the State’s position in respect of it is as follows.

1119    Peter Miller said he would swim to the other side of the reef at Duck Pond at low tide to catch razorfish and scallop. The State was of the view that parts of that activity fell within the Lowest Astronomical Tide but others did not. He gave further evidence that he would go fishing on the reef at Point Brown (Black Lagoon) at low tide as the reef would be shallow, ranging in depth from about shin to knee height. Simon Prideaux also said he would access this reef to collect abalone at low tide. At other times he would swim approximately 100 m over the top of the reef on the seaward side and fish with a speargun. Putting aside the speargun, the swimming distance would put him beyond that reef to a depth of greater than 2 m.

1120    Neville Miller said he fished off the reefs at Clare Bay during low tide, when the water would be around half a metre in depth. He also mentioned collecting shellfish from the reef at Albert’s Hole at low tide and fishing from various spots on the reef at Mexican Hat. He marked on a map the locations he would go to at Mexican Hat. The State submitted that parts of these fall within the Lowest Astronomical Tide. I accept that submission. The depths of water in those parts beyond the Lowest Astronomical Tide are uncertain.

1121    Oscar Richards gave evidence about spearfishing and collecting shellfish from rocks and reefs at various locations, including Point Brown. He further described walking along the sand to reach the reefs at Dog Fence, Coombra, Wandilla, Cheetima, Cabbots and Yalata when the tide was low. The State submitted that parts of these go beyond the Lowest Astronomical Tide but others do not. Again, the depths beyond the Lowest Astronomical Tide are uncertain.

1122    Gavin Peel said that he would spearfish and collect shellfish from the reef at Mexican Hat. He asserted that he would walk through water that was about ankle to knee deep at Cheetima when the tide was low to reach the reef. On that evidence, the depths of water at the seaward side of Mexican Hat are uncertain. However, Jack Johncock gave evidence that he would go diving on the seaward side of the reef at Mexican Hat to catch crayfish. He explained that there would be no water on the reef when the tide was very low but that the water on the seaward side would still be around 6 to 8 feet deep. He further stated that the reefs at Coorabie and Cheetima Beach would become dry when the tide was out for a long time and said he would dive out seaward from those reefs.

1123    Clem Lawrie explained that the reef at Merdayerra Sandpatch could be accessed by walking during low tide when there would be some water to walk through. He said there was no water when the tide is at its lowest. The State was of the view that parts of this reef are within the Lowest Astronomical Tide but others are not. Again, the depths beyond the Lowest Astronomical Tide are uncertain.

1124    Penong Miller also described being able to access the reefs at Rocky Point, Clare Bay and Davenport Creek by walking and swimming during low tide. He said fish could be collected from the seaward side of the reefs using snorkels and masks. He did not depose to the depths of the water.

Conclusions relating to physical access to the Sea Claim Area

1125    The following conclusions are based on the weight of the evidence discussed in this part of my reasons:

(1)    The objective conditions in the sea are as described in the mostly unchallenged evidence of the State’s witnesses on the topics of tidal flows, water depths, rips, wave energy, shark presence and the topographical features of the Bunda Cliffs. I accept the evidence of the State’s witnesses concerning the objective conditions of the sea other than where I have expressly qualified or stated otherwise. However, I also accept that the sea conditions could have some variation depending on weather conditions.

(2)    Prior to sovereignty Aboriginal people did not utilise watercraft, rods, lines or other modern fishing apparatus.

(3)    Prior to sovereignty Aboriginal use of marine food resources was mostly but not exclusively confined to foods gathered in the Intertidal Zone.

(4)    Access beyond the Intertidal Zone may be informed by inference from activities performed by Aboriginal people today without the use of modern aids. There is insufficient evidence to suggest that Aboriginal people prior to effective sovereignty were any better or worse swimmers than Aboriginal people today.

(5)    Prior to effective sovereignty, Aboriginal people utilised natural fish traps but the evidence does not support a finding that that activity occurred beyond the Lowest Astronomical Tide, the inherent nature of a fish trap typically involving capture of fish as tides recede.

(6)    I do not accept that the presence of sharks in and of itself should preclude a finding that Aboriginal people did not venture beyond the Lowest Astronomical Tide, just as fear of sharks in ordinary human experience does not deter Aboriginal and non-Aboriginal people alike from entering the water in modern times.

(7)    Prior to sovereignty, Aboriginal people descended areas of the cliffs at their eastern and western extremities, however that access is unlikely to have involved descent for the purpose of entering waters at the base of the cliffs to a distance beyond the Lowest Astronomical Tide.

(8)    To the extent that Aboriginal people accessed places at the base of the Bunda Cliffs at other locations, the Lowest Astronomical Tide mapping data suggests that the places at the base of the cliffs are mostly within the area covered by the FWC Land Determination and that waters otherwise get very deep very quickly.

(9)    Access to St Peter Island and Eyre Island is not impossible without the use of modern aids, however it is unlikely that Aboriginal people would have accessed the islands prior to sovereignty, given the risks and the absence of evidence of specific resources or attractions on the islands that could not be found on the mainland.

(10)    Access to the Sea Claim Area at sovereignty occurred in shallower waters, mostly confined to a depth of 2 m. I include in that finding Merdayerra Sandpatch, where I consider it likely that the short distance of 30 m beyond the Lowest Astronomical Tide would have been accessed at times of lowest tide and in calm conditions.

(11)    There may be places where reef formations enable access to waters on the seaward side of reefs to depths greater than 2 m, including at low tide. I find that the reef fishing activities of that kind occurred in more sheltered bays within the Sea Claim Area and in the vicinity of Mexican Hat.

(12)    There are instances of some Aboriginal people in the post-sovereignty period swimming great distances. I find they are confined to more eastern places.

1126    The collective effect of those findings is that there is a part of the Sea Claim Area that was physically accessible and in fact physically accessed by Aboriginal people prior to sovereignty and which therefore may be considered to form a part of the coastal estates as a natural continuation of the landed areas. The depths beyond the Lowest Astronomical Tide that were accessible and accessed were in some places greater than 2 m, principally in places where reefs provided a means to access deeper waters.

1127    Whilst the State presented its defence by reference to depths of water, I do not consider that to be a sensible or convenient method to describe the physically accessible part of the Sea Claim Area. Any native title determination that may be made in this proceeding should not define the relevant area in a fashion that depends upon a measure of water depth in places beyond the already fluid and invisible line of the Lowest Astronomical Tide. The boundary of such an area would be as erratic and ever-changing as the gradients of the sea floor. It would be an unworkable measure by which all people having an interest in the area covered by the determination (including non-parties and future generations) could identify their rights and organise their affairs.

1128    A preferable approach is to use a measure of lineal distance across the horizontal plane of the water from the line of the Lowest Astronomical Tide. That is the methodology employed by the applicant in its originating application, plotting the seaward boundary in lineal metres, not ocean depths.

1129    The parties have not been heard on the lineal distance in which answers to the Preliminary Questions should be expressed in the event that the applicant’s case was partially unsuccessful. In the description below, I have supplied lineal distances that I consider sensibly reflect my findings concerning the variable topography of the landscape aligning with the Sea Claim Area. To some extent the seaward boundary of the Sea Claim Area itself reflects that varying topography, with sea conditions becoming calmer and more accessible as one processes from west to east. The seaward extent of the defined accessible area will reflect the same.

1130    For the purpose of the remainder of these reasons, I will use the phrase Accessible Area to describe the physically accessible part of the Sea Claim Area according to the above findings, adopting some degree of pragmatism. I have taken the localities of the western and eastern ends of the Bunda Cliffs from distances calculated from the State Border, having regard to Mr Hacker’s evidence of those distances and my assessment of his footage.

1131    The Accessible Area is the area that:

(1)    includes that part of the Sea Claim Area aligning with the State Border and proceeding eastward to a point aligning with the western end of the Bunda Cliffs (23 km from the State Border), extending seaward from the Lowest Astronomical Tide to a distance of 30 m;

(2)    does not include any part of the Sea Claim Area aligning with the western end of the Bunda Cliffs (23 km from the State Border) and proceeding eastward to a point aligning with the eastern end of the Bunda Cliffs (3 km from Head of the Bight);

(3)    includes that part of the Sea Claim Area that aligns with the eastern end of the Bunda Cliffs (3 km from Head of the Bight) proceeding eastward to a point aligning with the vicinity of Point Peter, extending seaward from the Lowest Astronomical Tide to a distance of 30 m; and

(4)    includes that part of the Sea Claim Area aligning with the vicinity of Point Peter to the eastern boundary of the Sea Claim Area (as amended), extending seaward from the Lowest Astronomical Tide to a distance of 50 m, but not incorporating St Peter Island or Eyre Island.

1132    My incorporation of the lineal distances may incorporate places having a depth of more than 2 m and some places having a depth less than that. On the material before me I am not satisfied that the applicant has discharged its burden proving its case in respect of the whole of the Sea Claim Area.

1133    Without the benefit of submissions, I am not presently satisfied that the Claim Group has established a case that has put it in a better position than that expressed in the Accessible Area described above. However, as the parties have not made submissions with respect to the appropriate lineal distances from the Lowest Astronomical Tide, there will be a limited grant of liberty to apply to make a further submission on the question, strictly confined to evidence presently before me (unless there is a consensual position reached by those parties who actively participated in the trial).

PART 16: MYTHOLOGY, SACRED SITES AND SPIRITUAL CONNECTION

1134    I identified at least six themes emerging in the evidence of the Aboriginal witnesses on this topic. First, the witnesses referred to a connection to country by reason of their ancestors’ prior occupation of the area, together with their present day visitation and use of coastal areas and the sea. I will consider that aspect of connection in Part 20 below. Secondly, some of the Aboriginal witnesses asserted a relationship to country in the nature of ownership by describing its seaward extent as going as far as the eye could see. Thirdly (and related to the second theme), the witnesses gave accounts of mythology forming a part of their spiritual beliefs (referred to as stories), said to extend not only to coastal places within the FWC Land Determination Area but generally in and relating to the sea beyond the Lowest Astronomical Tide. Fourthly, some of the witnesses referred to having responsibility to protect the sea, as well as responsibility for caring for sites on the land. Fifthly, there was some limited evidence about ceremony generally or specifically relating to male initiation. Sixthly, there were references in the evidence to “spiritual danger” resulting from non-observance of traditions or customs.

1135    Some of those topics incorporated Western Desert traditions relating to the Tjukurpa and are therefore relevant to an assessment of Pathway C as a mechanism for holding native title rights and interests, as alleged in the originating application in its proposed amended form.

1136    As Redmond explained, the Dhoogoor (as used in this proceeding) is a Mirning word referring to the body of beliefs and practices associated with the Dreaming that established the lawful template for human interactions. At times the words Dhoogoor and Tjukurpa were used in the evidence in a way that distinguished Dreaming stories, ceremonies and responsibilities according to whether they were coastal or desert traditions. Pathway C refers to Tjukurpa rather than Dhoogoor and evidence relating to that pathway confirmed that it encompassed ritual responsibilities under desert-based traditions. That pathway does not depend on descendancy from a “core rights” holder.

1137    The evidence of witnesses called by the applicant on some of these topics is conveniently summarised in a table contained in Annexure E to the applicant’s closing submissions. It is too lengthy to be incorporated here, but I have had regard to all of it, whether or not it is detailed in the Aboriginal witness summaries in Part 10 of these reasons.

As far as the eye can see

1138    In the course of oral submissions in reply, the applicant clarified that the claim was premised on the physical accessibility of the Sea Claim Area and that the seaward boundary had been drawn accordingly. When asked about the narrow seaward extent of the Sea Claim Area, Counsel for the applicant explained, “[i]t’s about being able to access that country when they swim or dive and the like, yes”. Counsel confirmed that the Court was correct in understanding that the case was founded on the capacity at sovereignty to physically access the Sea Claim Area by going onto the islands and onto and into the water. That was affirmed again in the following exchange:

HER HONOUR:    So you don’t then erect any case that is founded on spiritual connection to a place that can’t be accessed?

MS JOWETT:        That’s right. Because we haven’t claimed it. That is not our case; our case is up to that 300, 100, 30 metre line. We say that that has been proved to that extent, and as I said not in every single tiny spot all the way along, and not in some parts of the Bunda Cliffs because we can’t access them, but Daisy Bates talks all about those walkdowns. They were there.

1139    Notwithstanding that confirmation, the applicant did not ask the Court to disregard the evidence of some witnesses asserting a connection to sea country extending “as far as the eye can see” (whether or not physically accessible). In some instances, those assertions were made without any specific mythological narrative going to the horizon, but rather as an assertion of ownership of country. Meegan Sparrow, Dorcas Miller, Robert Lawrie, Clem Lawrie, April Lawrie, Kaylene Fowler and Neville Miller all used the phrase “as far as the eye can see” or “to the horizon”. Bunna Lawrie said that there was no “boundary” to the south and that ancient knowledge went beyond the horizon. Some of those assertions were not explained by reference to any particular Dreaming story but were nonetheless an outward expression of the land and waters which the witnesses believed fell within their country. April Lawrie said of her belief that her ancestors’ spirits inhabited the wider expanse of the sea and that the spirits of Aboriginal people go there when they die. Dorcas Miller said that her father had told her the country of ancestors was now submerged under water.

1140    That evidence is to be given some weight as a genuine expression of each person’s relationship with country. So too are the assertions of Bunna Lawrie and April Lawrie to the effect that the spirits of the dead went out to sea. Rose Miller referred to the sea as the “gateway to our afterlife”.

1141    Notwithstanding Counsel for the applicant’s confirmation that this claim relates only to parts of the sea that were physically accessible at sovereignty, the applicant positively adduced lay and expert evidence on the topic of sea country extending to the limits of the visual landscape (irrespective of physical accessibility) and the Bunna Lawrie Respondents have also asked the Court to make findings in relation to it. The essence of the submission was that evidence of that kind could support a finding that native title rights and interests went to the visible horizon of the Southern Ocean and so must necessarily exist in the narrow area of the Sea Claim Area (whether accessible or not).

1142    The debate on this topic commenced with Graham’s reliance on this extract from Prof Peterson and Rigsby’s Oceania Monograph (1998), a study of what is described as “customary marine tenure”:

The importance of sight is further underlined by its role in defining the dimensions of Aboriginal sea estates. It is common for people to say, when asked how far out to sea their sea estates go, that they go, ‘to the horizon’ (e.g. this has been documented for the Tiwi ... and the people of Croker Island ...) This field of vision is extended by the distances people can see from elevated points and by the area they can see when at their farthest point of travel from land (Peterson and Rigsby 1998:4).

1143    Graham said that the Claim Group were “affiliated” with the Sea Claim Area at effective sovereignty because it was part of their wider visible “landscape” and through spiritual connection. He added that several significant mythologies explained the origin and features of the ocean and its inhabitants. He said that the writing of Peterson and Rigsby could assist in “defining the extent” of the Claim Group’s sea country when looking seaward. Those parts of Graham’s report where authored when the Sea Claim Area was much more extensive than it is now.

1144    In oral evidence, Graham asserted that the inability of a person to access the sea did not stop them having “a political concept of their country goes out there - out further”, adding “it’s eyesight to where you come up against something else” (meaning someone else’s country). He described that concept as “a very general Australia-wide phenomenon”. He added that in the Aboriginal view of things your spirit can go into country that cannot be physically accessed. He said “it’s as real to them who believe this as it is to us when we walk into this courtroom”. Graham said that although he could give no examples derived from the Claim Group itself, the area of sea at the base of the Bunda Cliffs would have been believed by Aboriginal people at sovereignty to have been part of what they thought was their country.

1145    Graham’s views were supported by Redmond in the concurrent expert evidence session. He said that an Aboriginal person’s use of the phrase “as far as the eye can see” was a way of “articulating your consubstantiality with that country which extends out from your particular estate areas” and went on to connect the concept with the mythic forms, specifically men or creatures in narratives relating to the land and sea. He said that a number of people used the phrase, but it would not necessarily be found in the ethnographic record as a way of Aboriginal people asserting “political ownership” because “that wasn’t the kind of narrative form that Aboriginal people [used to express] their relationships to country”. Redmond said that visual eyesight enabled a person to maintain visual surveillance and to “project yourself into the less physically accessible parts of your country”.

1146    In oral closing argument, Counsel for the Bunna Lawrie Respondents submitted that the outward extent of sea country was not fixed and need not be. Counsel submitted that the concept of country extending as far as the eye could see was a “traditional norm”, and whilst that could be a variable distance it did not matter in the present case because the Sea Claim Area was so narrow that it fell within the visual landscape at all times. Counsel submitted that one’s country went as far as the eye could see because “that was where one found one’s spiritual domain, where one could assert an ownership uncontested by anybody else”. It was submitted that the traditional norm was “if we can see it and it’s no-one else’s, we own it”. From that premise it was submitted that modern day use of sea resources using modern fishing apparatus constituted a contemporary use of country by Mirning people of waters that were always their country, notwithstanding that it related to parts of the sea that could not be physically accessed by their ancestors prior to effective sovereignty. The submission went:

Just because part of it is inaccessible with one’s current technology doesn’t make the norm any different. If there was a different norm which says you are prohibited from going out there, or you can’t fish here, that would be a very different proposition …. But what the State seeks to do is draw an artificial line between traditional technology and the ability to use resources and the right which underpins it, which is simply you’re allowed to, as part of your belonging to country, use the country.

We can put it in these terms. Let’s assume that technology had improved during the currency of the pre-sovereignty period to the point where there were watercraft. Would the use of that watercraft extend country? In my respectful submission, no; it would extend the physical penetration of country but not the out of bounds of it because it was always country extending out from the land.

1147    Sackett agreed with Palmer’s view that “areas informed by the mythological presence would have been of spiritual significance to those who espouse the beliefs in the ordaining Dreaming beings”. Both Sackett and Gara said (and I accept) that there was no information in the early ethnographic record about traditional laws and customs relating to the outward extent of sea country in the Sea Claim Area.

1148    Sackett added that eyesight alone was not the full picture. Other factors might include the existence of craft that allowed people to go into the area to use it for purposes and, if necessary, to defend it or at least mark its perimeters. Sackett acknowledged that there could be particular geographical features on the land such as rivers or mountain ranges that could mark the extent of country because they present physical barriers to access. He agreed that the Bunda Cliffs together with the nature of the waters beyond them could be perceived as a physical barrier of a similar kind.

1149    I accept that the views of Graham and Redmond on this topic have traction in academic discourse about Aboriginal belief systems generally. I also accept that some of the Aboriginal witnesses in the present case expressed beliefs that accord with those discussed at a more general level by the anthropologists. I afford those expressions of belief some weight. However in my view they are to be considered as part of a larger evidentiary picture and in the context of the applicant’s ultimate submission that the Sea Claim Area had been drawn and asserted narrowly because it was intended to encompass what was said by the applicant to be physically accessible (and in fact physically accessed at sovereignty). I have also had regard to the greater number of witnesses who did not advert to the seaward extent of country as going to the horizon or as far as they eye can see at all.

1150    The “connection” enquiry under s 223(1)(b) of the NT Act is fundamentally concerned with spiritual connection, but it is for the Claim Group to articulate its case as to how connection arises by their traditional laws and customs. The case on the question of connection was presented as one involving actual access, use and responsibility for country, as well as mythological narratives that were said to give rise to a connection to those physically accessible areas.

1151    I conclude that the assertions of sea country going to the horizon does not, in the present case, provide a basis for finding native title to exist in places that were physically inaccessible at effective sovereignty. The evidence of some witnesses that sea country “went as far as the eye can see” may nonetheless be considered in the context of mythologies put forward by the Aboriginal witnesses themselves as explaining their religious life and spiritual domain.

Mythology and related sites

1152    As Sackett explained, Dreamings fashioned the landscape and left the laws and customs. He said that it was necessary to distinguish between different types of Dreamings so as to ascertain what they established. The necessity to identify the significance of Dreamings loomed large in the present case. The topic presents unique difficulties in a case involving a seascape having few distinguishing features rather than a place having identifiable landmarks.

1153    Graham opined that the mythologies related by Aboriginal people form the basis of what he called “typical Aboriginal Australian religious life including story telling and ceremony. This includes responsibilities and rights over the country and associated sites”. When asked what normative rule or rights flowed from the existence of those types of Dreamings, Graham said that they gave rise to a right to be considered the owner of the place “[a]nd if you could get there, the right to do things on it. And for most of the claim area, people can get to the sea”.

1154    Statements of the above kind are helpful in assisting the Court to understand and interpret the evidence in fact given by living Aboriginal people about the traditional laws and customs that relate to the Sea Claim Area. However, there is in the present case a gulf between the qualitative nature of the evidence of mythological narratives contained in the expert reports when compared to the evidence of the Aboriginal witnesses themselves, and real questions as to how much of that mythology is within the knowledge of the Claim Group members and how much of it relates to the Sea Claim Area. I am not satisfied that the experts called by the applicant or the Bunna Lawrie Respondents paid sufficient regard to the question of whether the narratives they referred to in the formation of their opinions related to the Sea Claim Area, as opposed to the FWC Land Determination Area. Nor was sufficient attention given to the qualitative and quantitative difference between the narratives recorded in the early ethnography and those told by the Aboriginal witnesses themselves.

1155    The witness testimony in many instances asserted the existence of stories without telling them. To a limited extent the reluctance to tell a story might be explained by cultural restriction and I will deal specifically with that in the pages that follow. However, I also discerned in the evidence several broad assertions of the existence of stories without a telling of them. When questioned about those stories some witnesses were shown to have limited knowledge of them. In the circumstances, I have placed little weight on affidavit evidence which does little more than to assert the existence of a story that “relates to the sea” or that “goes to the sea” or similar language.

1156    The key narratives about which some witnesses gave evidence related to Jeedara (a whale), Jidara or ganba (a snake), balgada and wadu (the seal and the wombat) and Manarn (the two men). In addition, the Court heard of the existence (but not the detail) of mythologies that were said to have significance in Western Desert tradition which I understand to underpin Pathway C on the originating application.

1157    The applicant sought to rely on Palmer’s conclusion that there existed a multitude of narratives defining the spiritual domain of Aboriginal people recorded in his research for the FWC Land Determination. However, I have not admitted Palmer’s views as opinion evidence in its own right on the topic. Palmer’s views in any event would need to be understood against the fact that he must necessarily have considered the mythology itself to be insufficient to support a consent determination in relation to the very area with which the Court is presently concerned. Given the dismissal of an earlier claim over the very same area, the applicant ought to have been alert to the need to explain the mythological significance of the Sea Claim Area over and above what has already been expressly and implicitly recognised in the FWC Land Determination. To say that is not to diminish the mythology relating to the FWC Land Determination Area. To the contrary, the FWC Land Determination is to be given its full effect, including in its recognition of present day native title holders falling within each of the pathways as they apply in the land and waters to which it relates.

1158    The testimony of the Aboriginal witnesses principally (but not exclusively) related to places of significance to them within the FWC Land Determination Area and not falling within the Sea Claim Area. That is illustrated to an extent by an aide forming Annexure R to the State’s closing submissions collating evidence of Aboriginal witnesses concerning places that were said by them to be of spiritual importance, including sites for which they asserted a responsibility of protection. The table is reproduced here with the transcript and other evidentiary cross-references removed. The references in the second column to the Land or Sea identify the places as falling within the FWC Land Determination Area or the Sea Claim Area respectively, by reference to the Lowest Astronomical Tide.

1159    The table does not completely encapsulate all of the evidence given by witnesses about mythological narratives of significance to members of the Claim Group, but it is a helpful starting point in understanding the location of places referred to in the narratives relative to the Sea Claim Area and illuminates how much of the evidence focused on places that did not fall within the Sea Claim Area.

1160    For the most part the witnesses identified no specific sacred sites located in the Sea Claim Area itself, despite the assertions that stories “went to” or “ran to” the sea.

1161    Dorcas Miller referred in a non-specific way to places at Duck Pond and Fowlers Bay. She explained that Twin Rocks and Koonalda Cave were significant but said that the stories there were gender restricted and she did not wish to elaborate. Robert Lawrie referred to “sacred whale sites” but none were specified. He did refer specifically to Murphy’s Haystacks and Koonalda Cave, both of which are within the FWC Land Determination Area. Rosaleen Jenner said that “sacred places are in our land and sea” but was not able to identify any such sites in cross-examination. When asked about sacred sites, Simon Prideaux said “it’s like Twin Rocks and the Nullarbor”. Wayne Haseldine knew of no sacred sites beyond the lowest tide mark. Bunna Lawrie said that there were burial places in the sea but he was alone in giving evidence on that topic and he did not elaborate. He also said that “particular elders” looked after “whale sites” but did not identify which elders, which sites or their locations as being within the Sea Claim Area. Jason Scott, after referring in his affidavit to the significance of the whale as a totem was ignorant of the Jeedara site at Clare Bay which assumed much significance on the Bunna Lawrie Respondents’ case.

1162    I do not intend to be exhaustive in these observations and acknowledge there may be exceptions, but the general pattern in the evidence was a broad assertion in affidavits about the existence of sites coupled with an absence of evidence that could enable the Court to identify whether they fell within the Sea Claim Area or to make findings about that significance.

Relevance of the ethnographic record

1163    As has been mentioned, in Miller (No 3) I held that hearsay statements of Aboriginal informants contained in expert reports were admissible under s 60 and s 72 of the Evidence Act to prove the fact that the stories had been told to anthropologists and the subjective belief of the informants in the mythologies.

1164    To the extent that there is any mythology recorded in the ethnographic record relating to the Sea Claim Area I have given it limited weight unless it is a narrative referred to by members of the Claim Group as having present day significance to them. That is because the Court’s task is to identify the traditional laws and customs under which native title rights and interest are held in the present day, and the connection that contemporary Aboriginal people have with the Sea Claim Area by those laws and customs in the present tense. The ethnographic record is of course relevant to the extent that it assists the Court to find a source in pre-sovereignty times for those mythologies that are significant to the Claim Group members. But the mythologies themselves are not to be mistaken for laws and customs per se. Rather, they evidence a tradition of oral transmission of knowledge and meaning relating to land and waters and so evidence the connection of people to places by reference to that oral tradition. If there be a miscommunication of knowledge or a fracture of knowledge (perhaps associated with demographic pressures) that does not necessarily disprove the connection of people to places, nor does it disprove the existence of a tradition or custom providing for and regulating the generational transmission of knowledge.

1165    By far the most detailed and emphasised narrative was that relating to Jeedara the whale. It was told by (and only by) those who identified as Mirning and had its focus on the western portion of the coastline, in most iterations involving Clare Bay. That narrative will be given dedicated attention, including because the State invited the Court to find that it is not a story that can be found in the ethnographic record and that it has “post-sovereignty origins”. It is necessary to give a broad summary of the relevant ethnographic record in order for the State’s position to be understood and considered against that and further material.

Extracts from the ethnographic record

1166    Extracts from Bates’ records relating to mythology are helpfully contained in an aide identifying the extracts by number. Some of the extracts do not relate to the sea at all and others do not relate to the Sea Claim Area. Three of the extracts contain versions of the wombat and seal story. Unlike the story told by Aboriginal witnesses, Bates’ accounts did not include men fighting or changing into animals, nor were they situated at Fowlers Bay. There were at least three accounts of the Manarn story (which begins at Eucla and travels east to Head of the Bight). That story explains (at least) the formation of Twin Rocks (within the FWC Land Determination Area) and a constellation of stars.

1167    There were no express references in the extracts to any mythical creature in the form of a whale. However, there was this note, recorded between 1912 and 1918 (during Bates’ residence among Mirning people in Western Australia):

Kailga-ailga (or kailga-kailga) (porpoise) was a snake.

1168    Bates’ extracts contain numerous additional references to snakes, at times (but not always) in connection with the word “Jidarra” or like spellings. An entry headed “Jidarra Song” commences with the words “Jalyimurra (jalyi spit or sea froth)”. There is another short entry headed “Jeedarra (snake) SONG)” followed by two lines of lyrics in language that have not been interpreted. Bates’ recorded “snake” mythology is discussed further below.

1169    Gara was instructed to identify evidence in the historical record for the existence of the Jeedara whale story as described by the Bunna Lawrie Respondents at or in the period immediately following sovereignty. He responded that he had been researching ethnographic and historical records relating to the Nullarbor Plain since 1988 and in that research he had not become aware of any reference in the documentary sources about whale Dreaming at sovereignty. He was, however, aware of references to dreaming stories involving a snake called Jeedara or Jidhera, known as the Jidhera serpent myth. The ethnography about the Jidhera serpent myth was then set out, dating from reports of Giles in 1875 (50 km south of Ooldea), who was told by his Aboriginal guide that a nearby lake was:

the footmark (or track) of a monstrous animal or snake that used to haunt the neighbourhood of the big plain, and which had once been driven by the Cockata blacks out of the mountains to the north … the creature had crawled down to the coast, and now lived in the sea

(footnote omitted)

1170    The earliest mention in the ethnographic record of a (possibly mythological) whale was an account of Delisser who in 1866 referred to cliffs south and east of Eucla:

…  The point of cliffs marked south and east of Eucla is a very remarkable object from sea. There are sandhills and sandy beach on both sides, itself abuts on the sea, and more than half way up the white chalk is laid bare, whereas the cliffs east and west are sloping and generally covered with vegetation; at the base there are several layers of flint. An immense whale lies embedded here.  …

(emphasis added)

1171    In my view, the location described encompasses the western end of the Bunda Cliffs proper. The white chalk, flint deposits and vegetated sloping perimeters all accord with other evidence before me. The description of an immense embedded whale may well be a recount of Aboriginal mythology. However that is uncertain, as is the location of the whale within the landscape referred to. I do not accept that Delisser may have been referring to the rock formations at Clare Bay having the appearance of a whale given the disparity in location.

1172    Bates’ extensive documentation of totemic groups in the region of Eucla and of Aboriginal presence on the Nullarbor Plain contains no reference to the whale as a totem, nor to any rockhole having a name referencing a whale. In 1915, Bates recorded Aboriginal people gorging on dead whales and other large sea creatures at the Head of the Bight after a storm.

1173    Bates recorded an Aboriginal word for “whale”, appearing next to a word meaning “magic”. However, among her extensive materials, there is no specific mythology relating to whales.

1174    In contrast, the word Jeedara, Jidara or ganba is used in several instances in accounts of Aboriginal belief in a monstrous snake, which resonates in some ways with Giles’ account of a snake that came from the north to the coast. The account below typifies the various stories, whilst at the same time recording Bates’ own observations of the distances travelled into the Nullarbor Plain by people who dwelled on the coastal strip:

The aborigines never traversed the great plain farther than above 20 miles from its edge in pursuit of kangaroo, emu, or gnonia (large carpet snake), always returning to their fire on the plain’s edge before darkness set in. The legend of the great ganba (magic snake) of the plain, which killed and ate any native whom he caught on his ‘oodiri’ (plain) was known throughout the whole centre of Australia, so that to-day, when the wild cannibals from the central areas obtain their first sight of the oondiri from the Ooldea hills, and see the train traversing it, they turn and fly back in fear and horror of the great ganba, which they believe they now see and hear.

If tradition is founded on fact, as is not infrequently suggested by anthropologists, then the aboriginal tradition that the magic snake of the great plain comes and goes from sea to land through the moonyungarra (blowholes) must mean that there are subterranean passages between the sea and the whole surface of the plain, and that the plain itself rests on shelving limestone strata between which are lake and rivers, and enormous caves. The booming sounds, great suction noises, and wind sounds they heard coming from moonyungarra or palin were the breathing and angry wongga (speech) of ganba.

Although there is no volcanic area within hundreds of miles of the great plain, it may happen that within our time the tailend of an earthquake may visit the plain, and with a tremor or two dislodge the shelving limestone-an action that would affect the whole plain, and either cause it to be covered by its old element again or make of it a great sloping breakaway; perhaps forming a new and accessible sea coast along the plain’s edge.

In walking over the plain one often comes upon a spot that gives back a hollow sound suggestive of a blowhole whose thin covering might be removed with a few pick strokes. To the aborigines, whose waters were round and about the plain’s edge, the great plain was a land of mystery and terror, over which the magic snake reigned supreme. They had no other tradition connected with the plain than the snake legend. The blowholes near the plain’s edge gave out some fearsome sounds at times.

The old Bight-head dingo totem men used to say that they often saw ganba in the sea (wanna) playing about, and by-and-by they would hear a roar and a hiss from the moonyungarra when ganba came back to the murnda (land).

The term moonyungarra may mean ‘having many evil spirits,’ but none of the dwellers round the plain’s edge could say that the name held such a meaning. The moonyungarra were places of avoidance and terror to all the groups living along the edge, and the wild cannibals who come into civilisation through Ooldea will not willingly go near or look down into a moonyungarra.

(emphasis added)

1175    Bates gave further accounts as follows:

(1)    in 1918:

Aged and long dead natives told their children, now old and feeble men, of the great trees that grew in ‘dhoogoorr’ (‘dream’ or ‘ancestral’- in the ‘Alcheringa’ of the famous Arunta) times on the plain, and would show their children bits of dead or fossilised wood od [sic] no tree known to them, which they maintained they had found as near the ‘jeedarra ngoora’ (snake’s home) as they dared to go…

Native legend says [that] the cliffs were pushed upwards by a great sea [snake], brother of the snake which dwelt in ‘No Man’s Land’. the snake was being pursued by powerful enemies, and rushing into the sea, which was then almost level with the land. ‘Jeedara’ turned westward, and pushed the ground up with his shoulders, thus baffling his pursuers.

(2)    in 1921:

There are many legends connected with the wild creatures that inhabited the plain’s edge, but there is only one legend associated with the plain itself – the legend of a huge magic snake, whose ‘home’ is in the caves and blowholes that are scattered over this weird portion of Australia; whose grumblings and shoutings issue forth from cave or blowhole at all times and seasons; who is ever moving to and from underneath the ground, from sea to plain and from plain to sea. Sometimes there are two of these monsters in the legend, when the sea monster comes to visit his land brother.

(original emphasis)

(3)    in 1931:

They could go about 20 miles on the plain to hunt but the magic ganba snake did not allow them to sleep on his plain and so though the centre of the plain held swarms of kangaroo and emu, these were left for a white man, Mr Beadon, to shoot for their skins. The blacks first crossed the plain from Ilgamba (Bight Head) to Murgaru Water under Mr Beadon’s protection. Banyarda’s father (I mention Banyarda in accompanying MS) was with a small group at Mungara Water where Mr Beadon and the few blacks came alive out of the snake’s territory!

(4)    in 1944:

The natives believed it to be the abode of a mighty magic snake called Ganbra or Jeedarra which ate any human that entered his territory.

According to the natives, the blow-holes are the gates through which Ganba passes to his sea home.

The old man told me that the sulky magic snake of the Plain had pushed up the land with his shoulders so that he could swim along under the cliffs.

…

Families would walk for hundreds of miles to gather for the initiation ceremonies of their young men-avoiding the Nullarbor Plain wherever possible, for it was believed to be the home of Ganba the all-powerful snake, who lived in its limestone caves and howled through its blowholes when the hot north wind blew.

1176    Bates’ accounts of a mythical snake inhabiting the Nullarbor Plain are consistent with several other accounts in the ethnographic record, resounding in their number and general consistency. For example:

(1)    Williams in 1886:

Like the other tribes in the vicinity, the Yircla Meening have their particular conception of the horrors of the Nullabar Plain, which practically binds them as rigidly on the north as the sea does on the south. In their belief, it is the haunt of an immense serpent, which has devoured all the animals, grass, and trees which are supposed, ages-back, to have grown on the now barren waste. Indeed the absence of stones on the plains is attributed to the same cause.

(2)    Giles in 1889:

At fifty miles from Colona and eighty-five from the bay, we reached a salt lagoon, which, though several miles long, and perhaps a mile wide, Mr. Murray’s black boy informed us was the footmark or track of a monstrous animal or snake, that used to haunt the neighbourhood of this big plain, and that it had been driven by the Cockata blacks out of the mountains to the north, the Musgrave Ranges of my last expedition, and which are over 400 miles from the bay. He added that the creature had crawled down to the coast, and now lived in the sea. So here was reliable authority for the existence of a sea serpent.

(3)    JW Jones in 1880:

I was surprised to find, however, that the natives, who generally are so willing to accompany any party, or even go extraordinary distances alone to deliver a letter, were very reluctant to face the unknown plain. The knowledge of these natives is confined to the timbered strip, 20 miles wide, along the coast; and they have a tradition of a monster serpent occupying the country beyond, which they credit with fabulous deeds of destruction, and therefore could not easily be tempted to accompany me.

1177    The Berndts referred to the “ganba” myth as one that belonged to the Wirangu. A Wirangu informant told them a story of its travels as far as a clay pan but not to the sea.

1178    Gara identified the following additional material contained in the ethnographic record.

1179    During their field work at Ooldea, the Berndts recorded Wirangu myths relating to the area of Ooldea and Tarcoola and related sites at Euria (Black Duck and Eaglehawk) and north of Koonibba (Kangaroo Man, Euro Man and small night bird).

1180    In 1992 Scott Cane prepared a report for the purposes of the inclusion of the Nullarbor Plain on the World Heritage Register. In that report (later published in 2002), he gave an account of four Dreaming tracks that crossed the Nullarbor Plain from south to north. They are summarised by Gara as:

1.    The Fire Dreaming, that started in the Great Victoria Desert north of Tjuntjunjara and headed south across the treeless plain to reach Madura Cave, about 200 km west of Eucla before returning northwards to the desert country.

2.    The Zebra-finch Dreaming, which started in the desert and crossed the plain in a SSE direction to reach the sea at Wilson Bluff.

3.    The Two Men Dreaming, who travelled from Muckera Rockhole on the plain’s northern edge directly southwards to reach the sea south-east of Koonalda Cave from Muckera Rockhole.

4.    The Snake Dreaming comes out of the desert south of Lake Maurice and continues south-easterly to Ooldea and then around the south-eastern edge of the treeless plain via Pidinga to reach the sea at Head of Bight.

1181    Gara’s view is that an account of a bush turkey story recorded by Tindale is the same as the red finch story recorded by Cane. In each story, a man’s fire flints were stolen by a bird that then flew south to the sea to drown the fire in the water. Before the bird could do so, hawks took the flints and jammed them into faces of the cliffs. According to Tindale, the story became a “recognizable itinerary recounting by name the line of watering holes leading deviously across the difficult-to-traverse Nullarbor Plain to Wilson Bluff”.

1182    Gara reported that he had been shown a place west of Eucla in 1989 which was said by his Wirangu informant to be an important Wirangu site. At that place a circular depression in the earth was said to have been created by a meteor which fell to earth, and out of which came a man and a woman who were the ancestors of today’s Wirangu people. The man and woman became trapped in water at the cliffs, went through a cave and came up through separate blowholes near Head of the Bight. Cane’s informant was the son of Yari Miller and later took responsibility for sharing with children the story that linked the sites associated with it.

Expert opinions concerning the Jeedara whale story

1183    In the pre-trial conference of experts, Graham, Liebelt, Redmond, McCarthy and Sackett agreed to this proposition:

The Whale mythology appears to articulate with the well-recorded Jidhera serpent myth in which the coastal cliffs were created along the adjacent coast before being driven into the sea where it makes itself visible with the same sorts of blowholes and spraying of mists as is attributed to Jidhera the snake. In its own right it does not establish an estate or the extent of a group’s connection to country. (note Mr Graham defines Whale mythology/Jidhera as per the discussion in his reports)

1184    Graham, Liebelt, Redmond and McCarthy further agreed that:

The Whale mythology is part of an on-going tradition of maintaining vitality of cosmological principles and is a projection of on-going spiritual connection to waters off coastal estates. In other words the Whale Dreaming manifests pre-existing attachments to the claim area (it does not create an attachment to the area in its own right).

1185    Sackett disagreed.

1186    Gara did not agree that there existed any whale mythology in the Sea Claim Area sourced in pre-sovereignty times. He expressed the view that the story was invented as recently as the 1980’s. The State did not embrace that particular view and no witness was cross-examined in a way that suggested such a recent invention. However, the State did maintain that the Jeedara whale story did not have its source in pre-sovereignty laws and customs. That submission was premised on an asserted absence of any reference to whale mythology in Bates’ records, as well as inconsistencies and idiosyncratic features in the iteration of the story as told by the Aboriginal witnesses.

Aboriginal testimony concerning whale and snake mythology

1187    The iterations of the Jeedara whale story as told by other Aboriginal witnesses are set out in the summaries in Part 10 of these reasons. Transcript references are otherwise found in Appendix F to the closing submissions of the Bunna Lawrie Respondents and I have had regard to them. I observe that those witnesses who spoke of Jeedara as a travelling whale pursued by or pursuing the seven sisters positively denied that Jeedara was a shape-shifting creature that could take the form of a snake.

1188    Oscar Richards (as a descendant of Tjabilja) said he had heard about “ganbara” the snake from his uncle Hughie Windless, a Kokatha man from Kingui (on the northern edge of the Gawler Ranges). He said (at [7]):

The Ganbara, this is a snake. It used to travel from the western desert underneath the land, it is a big story and connects the desert to the coast, with the Wirangu and the Mirning people. I couldn’t tell you exactly where it travelled from the inland, but it created the caves, waterways, blowholes and I think it ended up at Head of the Bight. Old Hughie Windlass told me many stories about this, old Umbuka.

1189    Oscar Richards did not tell the Jeedara whale story or otherwise refer to it as having any significance to him.

1190    Clem Lawrie referred to “Jidara” as being chased by the Seven Sisters (as did Bunna Lawrie). Unlike Bunna Lawrie, he said that the whale transformed into a snake when it entered the land. Michael Laing also gave an account of ganba (a snake) transforming into Jeedara (a whale) when passing between the land and the water.

1191    I have had regard to a book by Mickey Free Lawrie’s granddaughter Iris Burgoyne titled The Mirning: We are the Whales, published in 2000. However, I have also considered (and accept) Gara’s criticism of the book as containing many objective historical inaccuracies and I do not consider it adds to the evidence of living witnesses on this topic in any significant way.

1192    The Whale Dreamers video was produced in 1998 by filmmaker Kim Kindersley. It concerns whale mythology of Indigenous people from around the world. The film features people referred to as “Mirning Whale Dreamers”. Bunna Lawrie is described as a “song man”. The narrator refers to the Jeedara whale story as creating the earth and the sky. The narrator reports “[t]hey told me the great Australian Bight is the gateway to the galaxy and the Dreamtime”. The video is to be considered in the context of other evidence given by Bunna Lawrie concerning “whale law” and his relationship with Indigenous people who have affinity with whales. I have placed little weight on the documentary. It does show that there existed a belief in some witnesses in the Jeedara whale story at the time that the documentary was made, but the existence of the belief at that time is not disputed.

1193    In Part 22 of these reasons I explain why the broader reference to “whale law” adds little to the findings and conclusions I have reached on the basis of the evidence considered as a whole. My consideration of whale law and cultural practices such as whale songs and dances has been subsumed in my analysis of the underlying myth.

1194    I accept that the living descendants of Mickey Free Lawrie had been told the Jeedara whale story by persons at least one generation before them in a way that resembles the contemporary narratives they retold to the Court. Some features of the narrative are the westward travels of a whale either pursuing the Seven Sisters (for his own purposes) or being pursued by them (for initiation purposes), the whale becoming embedded in the landscape at Clare Bay, the whale being hit on the head at Mexican Hat, the whale going to Twin Rocks (where a part of the story is for men to tell), the whale being accompanied by two dolphins (or penguins), the whale spilling his “djalyi” or “sea foam” into the water, and the whale travelling further westward along the coast to beyond the State Border.

1195    I do not consider the story in that iteration to have been invented by any person in a living generation and it seems to me that if that was a submission the State wished to press it would have been necessary in fairness to frankly put that to each of the witnesses as a direct challenge to their asserted sources. In addition, an assertion that the Jeedara whale story is one invented by persons in living generations descended only from Mickey Free Lawrie would need to accommodate Michael Laing’s evidence to the effect that he had some knowledge of a story involving a whale with the name of Jeedara, albeit one that interacts with the ganba mythology. He said he had been told that story by an uncle in a separate family line descending from the mother of Gordon Charles Naley (a native title holder in the WA Mirning Determination). The State did not effectively challenge him on the source of his knowledge.

1196    With the exception of my observations of the evidence of Bunna Lawrie, as well as my observations about Clem Lawrie’s evidence, I do not consider differences in detail in the telling of the story to be problematic for the purpose of assessing the credit of any individual witness.

Further expert evidence and submissions

1197    The Bunna Lawrie Respondents submitted that their accounts were sourced in pre-sovereignty knowledge and tradition, contending that they can be found in Bates’ notes of mythology in the area. They said that the contemporary telling of the story picked up one half of one story and one half of another story recorded in Bates’ notes, incorporating words about the Seven Sisters being chased, the spilling of jalyi and imagery of a mythological creature being hit on the head. That submission found some support in the expert evidence, including the agreed description that it appeared to “articulate” with the “Jidhera serpent myth” which explained the creation of the coastal cliffs and blowholes on the clifftops.

1198    In oral evidence, Graham said that he considered the contemporary whale story to be “perfectly compatible with Daisy Bates’ material with a bit of anthropological interpretation thrown in”.

1199    Redmond asserted that Bates’ notes should be interpreted to mean that Aboriginal people thought whales to have magical and powerful spiritual forces (drawing on the proximity of the Aboriginal words for whale and magic in one of the notes). He said that Bates had used the word “porpoise” in one entry when she may have intended to mean “whale”. When asked whether the Jeedara whale story was “nothing more than an idiosyncratic mythology and collection of ideas expressed by descendants of Mickey Free Lawrie”, he said that the mythology picked up on “the available elements of” the Jeedara (whale) or ganba (snake) mythology and “creates [an] amalgam of the two”, adding that Aboriginal conceptions of the natural world operated by analogies and metaphors.

1200    I have considered the submissions and evidence on this topic in conjunction with other evidence contained in later parts of these reasons. In my view, to the extent that it was submitted that Bates had in fact recorded a whale story of the kind told to the Court, that submission cannot be accepted. Bates was plainly aware of the presence of whales in the regions of her studies, referring to them by name and observing a dead whale being eaten on at least one occasion. Accounts of serpent myths appear throughout her notes as they do in other parts of the ethnographic record with common elements that are quite different from the Jeedara whale story told by the Aboriginal witnesses. Bates lived embedded with Aboriginal people in the coastal regions of Eucla and Fowlers Bay for several years and her notes are prolific (albeit disorganised). It may readily be inferred that the “whale tail” feature in the landscape at Clare Bay (within the Fowlers Bay area) would have been known to her and her Aboriginal informants. In addition, as discussed elsewhere in these reasons, the evidence shows that Tjabilja (from whom all who told the Jeedara whale story are descended) was from the region of Eucla, and there is some evidence that she also had family connections in Fowlers Bay. It is very unlikely that a story of the kind told to the Court by Tjabilja’s descendants would have been omitted from Bates’ notes in error and very unlikely that a story of that kind would not have come to her attention. Whilst I accept that there are some parts of the narratives recorded by Bates that could be roughly stitched together to broadly replicate the “plot” of the Jeedara whale story, to do that would be to disturb the ethnographic record so as to have it say something that it does not. I find that when Bates recorded myths about a serpent, she faithfully recorded what her Aboriginal informants had said about it at the time that she was residing with them.

1201    The serpent stories recorded by Bates involve a creature that was universally feared. The suggestion that Bates used the word “porpoise” when she meant to say “whale” is not persuasive, given that her reference to a porpoise appears in a story concerning a seal (see below) and given that she was not ignorant of the presence of whales in the region.

1202    No expert suggested that Bates was wrong in her survey of totemic estate groups in the very region in which Tjabilja had connections. Nor did any of the anthropologists suggest that Bates had failed to record such a significant organisational feature as a whale totem ascribed to the whole of the “Jinyila Nation”, as asserted by Bunna Lawrie. That is a further reason not to contort Bates’ notes of mythical narratives so as to “fit” with the narrative given by the Aboriginal witnesses. The better view is that the Jeedara whale narrative was not recorded by Bates because it was not told to her by her Aboriginal informants, and I so find.

1203    I accept the State’s submission that the Jeedara whale story is not objectively contained in the written historical record.

1204    Having said that, it must be borne in mind that the only Mirning ancestors with living descendants are those who descended from Tjabilja and the mother of Gordon Charles Naley. Their sons were not people who Bates would have interacted with because they did not have Aboriginal fathers. Whether either of the two women was an informant of Bates is unknown. Moreover, it is likely that the knowledge held by today’s living Mirning ancestors could be “imperfect” (in the sense that it is a fracturing or mis-telling of other narratives) because of the factual reality that the knowledge source goes back mostly to just one or two Aboriginal women with asserted connections to the locations to which the Jeedara whale story relates. The fracturing of a story may well evidence dislocation of Aboriginal people from each other and from their core ancestral estates.

1205    In relation to the whale as a totem, Redmond explained (and I accept) that an ensemble of totemic species could be shared by neighbouring estate groups, with groups sharing five or seven totems, with two that distinguish one group from another. He said that totems were markers that governed kinship and intermarriage, and that they also delineated a group’s responsibility to reproduce life in a totemic species with which they had a special relationship. There was general consensus among the experts that totemic associations did not exist at the level of a broader language group but are more likely the result of the post-sovereignty coalescing of the former estate groups, the totem being employed as a distinguishing identifier, just as the name of a language might be. As Redmond put it, “a particular symbol arises out of that mix to become a signifier for a broader group”.

1206    With the exception of Bunna Lawrie, the witnesses who referred to the whale as a totem did not expressly relate that concept to the traditional system of land tenure or patrilineal estate groups. I have not accepted Bunna Lawrie’s evidence concerning the traditional source of the whale as a unifying totem for all Mirning “clans”.

1207    The findings I have made thus far do not render irrelevant the significance of the whale as a “totem” in the genuine beliefs of the Mirning-identified witnesses. To the contrary, in my view, the assumption of the whale as a totem can be readily seen as reflecting the emergence of a unifying feature of a broader language group asserting core rights in country previously occupied by smaller Mirning estate groups and (more controversially) incorporating areas far eastward (as discussed later in these reasons). It can be seen as an expression of processes discussed in the evidence relating to the recognised adaptation to cognate descent mechanisms and the devolution of interests to the level of the language group. Living Aboriginal people descended from Tjabilja describe themselves by that totem as a unifying symbol distinguishing themselves as Mirning people. As such, the genuine expressions of the witnesses describing the whale as a totem can be sourced (albeit in a less direct way) from the traditional system of land tenure composed of interrelated patrilineal estates.

1208    On the question of whether the Jeedara whale story has “post-sovereignty origins”, I find the evidence to be inconclusive. It reflects a belief that is strongly held today by some Mirning people about the extent of Mirning country, particularly its eastward extent. Had it been relied upon by the applicant for such a purpose, I would have concluded that the applicant had not discharged the onus of proof in respect of it.

1209    In my view, the Jeedara whale story and associated cultural practices may be taken into account as a post-sovereignty expression of connection to some parts of the Sea Claim Area that arises by reason of the occupation of certain parts of the area by an identifiable ancestor of the witnesses, (principally Tjabilja), with those areas of ancestral connection being proven by other means.

1210    It would otherwise have been necessary to form a concluded view on the topic if an issue arose as to the precise boundaries of Mirning country. But that issue does not arise for the reasons discussed in Part 22 below. The Court should refrain from expressing a concluded view on a subject matter of such importance to Aboriginal people other than where it is forensically necessary to do so.

1211    Even if it were shown that the Jeedara whale story had pre-sovereignty origins, I would nonetheless find that the mythology in and of itself does not, as the experts agreed, “establish an estate or the extent of a group’s connection to country” and hence does not extend the area in which native title rights and interests exists beyond the Accessible Area. I accept the view expressed by Sackett that the core narrative drawn from witnesses (and ignoring features that are idiosyncratic to a single individual) involves a whale no doubt in the water but interacting with the land, as Sackett put it “hugging the coast” but not out to sea. In addition, the narrative was not put forward by a sufficient number of witnesses as a basis for defining the seaward reach of the Sea Claim Area. It was principally relied on to support the case of the Bunna Lawrie Respondents concerning the existence of distinct Mirning traditional laws and customs and to explain the eastern extent of Mirning country according to the belief of some witnesses.

The seal and the wombat

1212    Neville and Wanda Miller each gave evidence of the seal and wombat story. It was described in the evidence and submissions as a women’s story relating to a place near Fowlers Bay. The precise location was not identified to the Court.

1213    Gavin Peel also told the story in his affidavit. When cross-examined he acknowledge that it was a women’s story and did not suggest that he had responsibility for any site associated with it.

1214    There are two accounts of the seal and wombat story in Bates’ notes. They are extracted in Sackett 1 at [55] and [91]. The story relates to the sea in that it concerns an ancestor transforming into a sea creature while his brother (transformed into a wombat) is forever confined to the land. It also relates to the Littoral Zone, being the space where the two ancestral brothers can meet.

1215    In closing submissions, Counsel for the Bunna Lawrie Respondents argued that one could not get a clearer indication that Aboriginal people find that their spiritual ancestors “are in the water – not just in the shallows, but in the water”. I accept that the two beings are conceived of as ancestors and that the story is relevant in my assessment of the spiritual connection of some members of the Claim Group to the Sea Claim Area. However, on the basis of the limited evidence given by Aboriginal people about the story, I do not consider it to provide a basis for defining the geographical extent of native title rights and interests into deeper sea waters beyond the Accessible Area. The only witness who made a direct reference to the wider expanse of the sea was Neville Miller, who said that the seal went to Kangaroo Island and as far as a seal could go. Of itself, that evidence is not sufficient to support a finding that the story gives rise to or manifests the existence of, native title rights and interests beyond the Accessible Area.

Manarn