FEDERAL COURT OF AUSTRALIA

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2025] FCA 1641

ORDERS

THE COURT ORDERS THAT:

1.    The separate questions be answered as follows:

(a)    But for any question of extinguishment, native title exists in relation to the whole of the land and waters of the claim area.

(b)    The native title is held by the Marlinyu Ghoorlie claim group which comprises those Aboriginal people who:

(i)    are descended from one or more of four apical ancestors, being Nellie Champion, Kaddee, Warada and Lucy Sambo, including by adoption in accordance with the traditional laws and customs of the rights-holding group;

(ii)    identify themselves as Karlamaya, Kapurn and/or Karlaku (including alternate spellings of those names) or any combination of those names; and

(iii)    are recognised by the other members of the rights-holding group as members of that group in accordance with the traditional laws and customs of the group.

(c)    The nature and extent of the native title rights and interests held by the Marlinyu Ghoorlie claim group is appropriately described (at this stage of the proceedings) as the right to possession, occupation, use and enjoyment of the land and waters of the claim area being:

(i)    the right to live, being to enter and remain, camp and erect temporary shelters and other temporary structures for that purpose and to travel over and visit any part of the claim area;

(ii)    the right to hunt, fish, gather and use the traditional resources of the claim area;

(iii)    the right to take and use water on the claim area; and

(iv)    the right to engage in cultural activities and the transmission of cultural knowledge on the claim area, including:

A.    visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and

B.    conducting burials, ceremony and ritual.

2.    Pursuant to s 84(8) of the Native Title Act 1993 (Cth), each of Gary Cooper, Maria Bandry, Norman Cooper and Victor Cooper cease to be a party to the proceeding.

3.    The proceeding be listed for case management to determine the next procedural steps to be taken in the proceeding at 9.30 am (AWST) on 6 February 2026.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed in so far as it relates to land and waters within the claim area of the Marlinyu Ghoorlie native title determination application (WAD 647 of 2017).

2.    Within 60 days of the date of these orders, the applicant give written notification to the Court and all parties to this proceeding whether the applicant intends to proceed with the application in so far as it relates to land and waters outside the claim area of the Marlinyu Ghoorlie native title determination application (WAD 647 of 2017).

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

REASONS FOR JUDGMENT

O’BRYAN J:

A.    INTRODUCTION

1    These reasons concern two native title determination applications made under s 61 of the Native Title Act 1993 (Cth) (NTA) which cover, in part, the same area.

2    The first of the applications was filed on 22 December 2017 and given the proceeding number WAD 647 of 2017. It is known as the Marlinyu Ghoorlie claim. The Marlinyu Ghoorlie applicant claims native title rights and interests in the claim area on behalf of the Karlamaya (Kalamaia) Kapurn (Gubrun, Kaparn) people, also known as Karlaku (Kalaako, Kalarku) people. The significance of those names will be discussed in the course of these reasons. The first-mentioned name uses the preferred spelling adopted by the Marlinyu Ghoorlie applicant, with alternative spellings in parentheses. For simplicity, these reasons adopt the preferred spelling used by the Marlinyu Ghoorlie applicant (save where quoting directly from the evidence given by a witness or from historical sources), and will refer to the Marlinyu Ghoorlie claim group as the ‘Karlamaya Kapurn people’. For present purposes, it is sufficient to note that: the name Karlamaya is the name of an Aboriginal language used in the Marlinyu Ghoorlie claim area by Aboriginal people occupying the area at the time of European settlement; Karlaku is likely an alternative word for Karlamaya; and the name Kapurn is the word for ‘man’ or ‘person’ in the Karlamaya language and was used to refer to the Aboriginal people occupying the land and waters in or around the Marlinyu Ghoorlie claim area at the time of European settlement. In each of the words Karlamaya, Karlaku and Kapurn, the letter ‘k’ is pronounced as a ‘g’.

3    The words ‘Marlinyu Ghoorlie’ are not a language or social name. The words refer to two species of tree that are characteristic of the landscape of the Marlinyu Ghoorlie claim area in the Karlamaya language. The word marlinyu is used to refer to salmon gums (eucalypt), and the word ghoorlie (also spelt kurli) refers to a sheoak tree (casuarina), both of which are common in the claim area.

4    The land and waters the subject of the Marlinyu Ghoorlie claim comprise an area in the Western Goldfields region of Western Australia that is approximately 89,797 square kilometres in size. The eastern part of the claim area includes the area surrounding Kalgoorlie and Coolgardie, extending south to Widgiemooltha and north to a point south of Comet Vale. The western part of the claim area extends past Southern Cross and Mukinbudin. The town of Merredin is beyond the south-western border of the claim area. The claim area extends north past Mount Jackson. Originally, the claim area extended west past Kalannie. However, on 21 June 2023, the claim area was amended to exclude an area in the north-west of the claim area (including the area around Kalannie), as part of a settlement with the Badimia people.

5    A significant location for the Karlamaya Kapurn people is Mount Burges, which is located to the north of Coolgardie. It is known as Muluuri to Karlamaya Kapurn people. Throughout the evidence, the location is frequently spelled Mount Burgess, even though the name that appears on maps is Mount Burges, and a nearby pastoral station is named Mount Burges Station. The confusion in spelling appears to have arisen because certain facilities and enterprises located in the area have adopted the spelling Mount Burgess (for example, the Mount Burgess Station Road and the Mount Burgess Gold Mine). Curiously, the confusion in spelling also appears to be historic, because the early European settler, David McDonald, and the ethnographer Daisy Bates, also use the spelling ‘Mt Burgess’. Despite the use of different spelling, there was no confusion in the evidence as to the location being described. As the European name that appears on maps is Mount Burges, these reasons adopt that spelling (even where a witness used the alternative spelling Mount Burgess).

6    The second of the applications was filed on 18 February 2022 and given the proceeding number WAD 38 of 2022. It is known as the Karratjibbin claim. The significance of the name ‘Karratjibbin’ will be discussed later in these reasons. For present purposes, it is sufficient to note that the Karratjibbin applicant contends that the name ‘Karratjibbin’ is derived from the place name of one of the main camps of the Karratjibbin people located between Southern Cross and Mount Jackson. The Karratjibbin applicant claims native title rights and interests in the Karratjibbin claim area on behalf of the Karratjibbin people. The application was subsequently amended on 2 September 2022.

7    When it was first filed, the Karratjibbin claim concerned an area of more than 49,600 square kilometres and was wholly within the Marlinyu Ghoorlie claim area, comprising a smaller part of the Marlinyu Ghoorlie claim area. It shared the south-western boundary, and part of the north-western boundary, of the Marlinyu Ghoorlie claim area, and extended east past Southern Cross to Boorabin, and to the north included Mount Jackson. However, when the Marlinyu Ghoorlie claim area was amended on 21 June 2023 (to exclude an area in the north-western part of the claim area), the same amendment was not made to the Karratjibbin claim area. As a result, the Karratjibbin claim area is no longer wholly within the Marlinyu Ghoorlie claim area.

8    A map showing the Marlinyu Ghoorlie and Karratjibbin claim areas is attached to these reasons as Annexure A.

9    As required by s 67 of the NTA, the applications have been heard together in so far as the Karratjibbin claim area overlaps the Marlinyu Ghoorlie claim area.

10    A joint trial of the Marlinyu Ghoorlie claim and the Karratjibbin claim was conducted in respect of the area covered by the Marlinyu Ghoorlie claim (trial area) and in respect of separate questions which can be stated as follows:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the trial area?

(b)    In relation to that part of the trial area where 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?

(separate questions).

11    The trial occurred in a number of phases between February 2023 and March 2024 inclusive. In the period 20-23 February 2023, preservation evidence was given in Kalgoorlie. In the period 2-19 October 2023, further lay evidence was given in Kalgoorlie and at locations throughout the trial area. In the period 11-15 December 2023, expert evidence was given in Perth. In the period 18-20 March 2024, closing submissions were heard in Perth.

12    At the trial, the Marlinyu Ghoorlie applicant pursued its claim for native title in respect of the trial area. It contended that the Marlinyu Ghoorlie claim group, and not the Karratjibbin claim group, held native title rights and interests in the whole of the trial area.

13    During the trial, the Karratjibbin applicant maintained its claim for native title in respect of that part of the trial area that was subject to the Karratjibbin claim. However, its position with respect to the Marlinyu Ghoorlie applicant altered during the trial. In closing submissions, the Karratjibbin applicant agreed that the Marlinyu Ghoorlie claim group held native title rights and interests in the trial area that was not the subject of the Karratjibbin claim.

14    Three respondents, or groups of respondents, participated in the trial of the separate questions: the State of Western Australia (State); members of the Cooper family (comprising Gary Cooper, Maria Bandry, Norman Cooper Jnr and Victor Cooper (Cooper respondents)); and Elizabeth Sambo.

15    Prior to the trial, the State had indicated its preparedness to resolve the Marlinyu Ghoorlie claim by agreement under s 87 of the NTA. The State informed the Court that the Marlinyu Ghoorlie applicant and the State were well advanced in reaching an agreement of that kind. However, the filing of the Karratjibbin claim and the opposition of other respondents to the Marlinyu Ghoorlie claim meant that the State and the Marlinyu Ghoorlie applicant could not resolve the Marlinyu Ghoorlie claim by agreement. At trial, the State put the parties to proof of their respective claims. In its written closing submissions at trial, the State stated its position on the claims and contentions advanced by the applicants and the Cooper respondents as follows:

In answer to the separate question, the State contends that neither the Karratjibbin nor Cooper parties have proved their cases. In the case of the MG Applicant, whilst there is some persuasive evidence in support of that case, there is a real question as to whether the evidence overall is sufficient to establish the existence of native title rights and interests.

Whilst the State’s preference remains that there be a determination recognising that the MG claim group possesses native title rights and interests, it does not consider that the evidence supports such a finding.

Accordingly, on the State’s assessment of the evidence, the appropriate conclusion is that no person possesses native title rights and interests in the MG Claim Area.

16    The Cooper respondents became respondents to the Marlinyu Ghoorlie claim to defensively assert native title rights and interests in the eastern portion of the trial area, which encompasses Bullabulling, Coolgardie, Kalgoorlie and Kanowna. The Cooper respondents do not seek a positive determination of their asserted native title rights and interests in that area, recognising that to seek such a determination they would be required to make an application of the kind listed in s 61(1) of the NTA. As respondents, they oppose the Marlinyu Ghoorlie claim and contend that the Marlinyu Ghoorlie claim group do not hold native title rights and interests in that area. In their written closing submissions at trial, the Cooper respondents submitted that the trial area is part of an ‘interstitial’ (or transitional) zone between the Noongar regional society (in the west) and the Western Desert regional society (in the east and north-east) and that, in the eastern portion of the interstitial zone (being the eastern portion of the trial area), Western Desert law and custom apply and have applied since the assertion of British sovereignty.

17    Elizabeth Sambo also became a respondent to the Marlinyu Ghoorlie claim to oppose certain aspects of the claim. Although Ms Sambo is recognised by the Marlinyu Ghoorlie applicant as a member of the claim group, prior to the trial she contested the extent and boundaries of the trial area and disputed the composition of the claim group. However, by the time of the completion of the trial, Ms Sambo’s position had altered. She no longer opposed the Marlinyu Ghoorlie claim. In her written closing submissions, Ms Sambo articulated a basis upon which she asserts a stronger affinity with and knowledge of certain areas within the trial area, but she stated expressly that she accepted that native title rights and interests in the whole of the trial area were held by the Marlinyu Ghoorlie claim group as a whole.

18    Many of the names of Aboriginal societies or languages referred to in these reasons have alternative spellings. I have already referred to the alternative spellings of the names Karlamaya (Kalamaia), Kapurn (Gubrun, Kaparn) and Karlaku (Kalaako, Kalarku). Alternative spellings for the name Noongar include Nyungar and Nyoongah. An alternative spelling for the name Badimia is Badimaya. Alternative spellings for the name Wongai include Wongi and Wangkayi. An alternative spelling for the name Mirning is Mirniny. For reasons of simplicity and consistency, these reasons adopt the spellings Noongar, Badimia, Wongai and Mirning, unless quoting direct speech.

19    In these reasons, it has been necessary to refer to Aboriginal people who are deceased. In many, if not most, Aboriginal communities across Australia, it is customary to avoid using the first names of deceased persons, at least for a period of time. However, because these reasons refer to many people who have the same family name, I have considered it necessary to refer to deceased persons by both their first and second names to avoid any ambiguity. No disrespect is intended by doing so. It is also appropriate to explain at the outset that, in those sections of the reasons that contain a discussion of the evidence given by a witness, I have generally used the witness’s full name (first and family name), again to avoid any ambiguity. That is because many witnesses have the same family name. Where a father and son share the same name, the suffix ‘Senior’ (Snr) or ‘Junior’ (Jnr) has been used, consistently with the usage adopted by the parties. Where possible, I have ameliorated the excessive formality of repeatedly using a witness’s first and family name by, on occasions, using their first name only, again consistently with the usage adopted by the parties. Again, no disrespect is intended by the use of first names.

20    The preparation of these reasons has taken a considerable period of time. This was due to the wide range of issues that were contested in the proceedings and the volume and complexity of the evidence adduced to address all contested issues. I note, though, that my findings with respect to the credit of all witnesses who gave evidence were prepared during or shortly after the trial of the proceeding.

B.    BACKGROUND AND PROCEDURAL HISTORY

21    There has been a long history of native title claims in and around the trial area. It is unnecessary to survey the previous claims in detail. However, it becomes relevant in the course of these reasons to refer to certain of the earlier claims and previous decisions of the Court. The remainder of this section then describes each of the Marlinyu Ghoorlie claim and the Karratjibbin claim and the relevant procedural history of those claims before the trial of the separate questions.

B.1    Earlier claims

22    In and around 1998, numerous native title determination applications were filed in areas that included large parts of the trial area, including the applications known by the following names: Gubrun (WAD 2 of 1998); Central West Goldfields (WAD 65 of 1998); Kalaako (WAD 128 of 1998); Kabul (WAD 6196 of 1998); Kalamaia Kabu(d)n (WAD 6216 of 1998); Dimer (WAD 6225 of 1998); and Widji (WAD 6243 of 1998). None of those applications proceeded to trial.

23    In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1 (Harrington-Smith (No 9)), Lindgren J conducted a lengthy trial of a native title determination application referred to as the Wongatha claim and seven overlapping applications. The southern boundary of the Wongatha claim area was some 85 kilometres north of Kalgoorlie (Harrington-Smith (No 9) at [5]). When it was originally filed, the Wongatha claim partly overlapped the Gubrun claim and the Kalamaia Kabu(d)n claim. However, the Wongatha claim was amended to excise the areas of overlap (Harrington-Smith (No 9) at [4]), with the result that neither the Gubrun nor the Kalamaia Kabu(d)n claims were heard with the Wongatha claim.

24    The Central West Goldfields claim was not accepted for registration under s 190A of the NTA. In Sambo v State of Western Australia [2009] FCA 940, McKerracher J noted disagreements between members of the applicant, but decided not to dismiss the application under s 190F(6) at that time. Subsequently, in Sambo v State of Western Australia (No 2) [2010] FCA 927, McKerracher J dismissed the application because a deadlock between members of the applicant had not been resolved. His Honour’s reasons for judgment reveal that the dispute in the present proceeding also afflicted the earlier Central West Goldfields claim. His Honour recorded (at [26]) evidence given by Sue Wyatt that the Cooper family sought the dismissal of the Central West Goldfields claim to allow a new native title claim to be lodged “to accommodate the true customary and spiritual boundaries of our traditional Aboriginal ancestry and heritage in accordance with out ethical [sic] ancestor, Anida Nala Bilbear of the original tribe of Kalgoorlie, the Maduwongga people”. His Honour also recorded (at [28]) a submission of Mark Champion that the application wrongly excluded certain branches of the Champion family from the claim group, including his father Brian Champion Snr.

25    The Ballardong claim (WAD 6181 of 1998) was filed in 1998 on behalf of the Ballardong people who are part of the Noongar nation. One of the named applicants was Reginald (Reg) Yarran Snr who is the father of one of the Karratjibbin applicants, Reginald (Reg) Yarran Jnr. The Ballardong claim covered an area to the south-west of the trial area but, in its original form, included a large part of the Karratjibbin claim area (and, therefore, that part of the Marlinyu Ghoorlie claim area that was overlapped by the Karratjibbin claim), including, for example, Mount Jackson, Southern Cross, Marvel Loch, Westonia and Kalannie. The Ballardong claim was amended in 2008 to withdraw the boundary of the claim area to what is now the south-west boundary of the trial area. The Ballardong claim was subsequently resolved as part of the South West Native Title Settlement. By that settlement, the constituent groups of the Noongar nation (including the Ballardong people) resolved their respective native title claims in the south-west of Western Australia in exchange for a package of benefits. The settlement is constituted by six indigenous land use agreements (ILUAs) and was given legislative recognition in the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA): see Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 (Dimer (No 1)) at [51]. The Ballardong ILUA was entered into in 2016. One of the representatives of the Ballardong people who signed the ILUA was Reg Yarran Jnr.

26    The Kaparn claim (WAD 420 of 2013) was filed on 11 November 2013. Elizabeth Sambo was a named applicant. However, it was refused registration under the NTA. On 26 August 2015, Barker J made an order under s 190F(6) of the NTA dismissing the claim: Sambo v State of Western Australia [2015] FCA 954.

B.2    Maduwongga claim

27    The Maduwongga claim (WAD 186 of 2017) was filed on 21 April 2017, shortly prior to the filing of the Marlinyu Ghoorlie claim. The Maduwongga claim was made on behalf of a group of people called the Maduwongga, who were said to comprise a distinct land-holding group descended from one apical ancestor known as Kitty Bluegum (referred to in the judgment by her initials, ‘KB’). The two named applicants for the Maduwongga claim were Marjorie Strickland and her sister Anne Nudding. The Maduwongga claim area was situated in the Goldfields region of Western Australia, stretching from Coolgardie in the south-west to the Edjudina Range in the north-east. Relevantly, the Maduwongga claim area overlapped in the south-west with the trial area, and in the north-east with a claim seeking a determination of native title rights and interests on behalf of the Nyalpa Pirniku claim group (WAD 91 of 2019).

28    In late 2020 and early 2021, the Court heard evidence and submissions on a separate question, which was intended to determine a dispute between the Maduwongga applicant and the Nyalpa Pirniku respondent as to who held native title rights and interests in relation to the overlap area between the Maduwongga claim and the Nyalpa Pirniku claim. That area of overlap was to the north-east, and outside, of the trial area. By orders made on 27 March 2023, the Court determined that the apical ancestor of the Maduwongga applicant, Kitty Bluegum, held rights and interests in the relevant overlap area under the normative system of traditional laws and customs of the Western Desert, but not under the normative system of a distinct land-holding group of which Kitty Bluegum’s descendants are the only identifiable surviving members: Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270 (Strickland). As a result of that decision, the Maduwongga claim was dismissed by orders of the Court made on 28 April 2023 on the basis that there was no separate land-holding group known as Maduwongga.

29    On 18 October 2023, Marjorie Strickland’s daughter, Jacqueline Spurling, applied to be joined as a respondent to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA. On the application, Ms Spurling asserted that she holds native title rights and interests in part of the trial area under Western Desert laws and customs (which marked a significant change in the position taken by Ms Spurling’s family in the Maduwongga claim, as summarised in the preceding paragraph). On 16 November 2023, Ms Spurling’s application was dismissed for the reasons given in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 5) [2023] FCA 1417.

30    It is noted for completeness that, on 31 October 2023, the Court made a consent determination of native title in respect of the Nyalpa Pirniku claim: Lewis on behalf of the Nyalpa Pirniku Native Title Claim Group v State of Western Australia [2023] FCA 1294 (Lewis). In that determination, the Court acknowledged the finding in Strickland that Kitty Bluegum, the paternal grandmother of the Maduwongga applicants, held rights and interests in the overlapping claim area of the Maduwongga claim and the Nyalpa Pirniku claim under the traditional laws and customs of the Western Desert and not as part of a Maduwongga society (Lewis at [13]). As a result of the findings made in Strickland, the description of the native title holders in the Nyalpa Pirniku claim was amended to include the descendants of Kitty Bluegum (Lewis at [16]). As noted above, the Nyalpa Pirniku determination area is to the north-east of, and does not overlap, the trial area.

B.3    Marlinyu Ghoorlie claim

31    The Marlinyu Ghoorlie claim was filed on 22 December 2017 and entered on the Register of Native Title Claims on 28 March 2019. The claim was notified by the Native Title Registrar with a notification date of 14 August 2019. A further amended application was filed on 21 June 2023.

32    At the time of the further amended application, the named applicants were Henry Richard Dimer, Maxine Patricia Dimer, James Champion, Raelene Peel, Tania Champion, Darren Indich, Simon Champion, Darryl Trott and Leechelle Hammat.

33    The Marlinyu Ghoorlie claim group is described as those Aboriginal people who:

(a)    are descended from one or more of four apical ancestors, being Nellie Champion, Kaddee, Warada, and Lucy Sambo, including by adoption in accordance with the traditional laws and customs of the rights-holding group, or though not descended from those ancestors, have been incorporated into the rights-holding group in accordance with the traditional laws and customs of the rights-holding group, or are descended from persons who have been so incorporated; and

(b)    identify themselves as Karlamaya, Gubrun, Kapurn or Karlaku (including alternate spellings of these names, or any combination of them); and

(c)    are recognised by the other members of the rights-holding group as members of that group in accordance with the traditional laws and customs of the group.

34    The application claims the following native title rights and interests in the trial area:

(a)    where there has been no extinguishment to any extent of native title or where any extinguishment is required to be disregarded:

(i)    except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment to the exclusion of all others; and

(ii)    in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including the right to hunt on, fish from, take and use the traditional resources of the flowing and underground waters and the right to take and use the flowing and underground waters;

(b)    otherwise, the following non-exclusive rights and interests:

(i)    the right to live, being to enter and remain, camp and erect temporary shelters and other temporary structures for that purpose and to travel over and visit any part of the trial area;

(ii)    the right to hunt, fish, gather and use the traditional resources of the trial area;

(iii)    the right to take and use water on the trial area; and

(iv)    the right to engage in cultural activities and the transmission of cultural knowledge on the trial area, including visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity and conducting burials, ceremony and ritual.

B.4    Jardu Mar claim

35    The Jardu Mar claim (WAD 4 of 2021) was filed on 15 January 2021. The named applicants were Allison Dimer, Dorothy Dimer, Leonne Velickovic, Yvonne (Nyunala) Brownley and Donald Vincent Ballinger. The claim was made on behalf of the Jardu Mar people who were described as, amongst other things, the descendants of Kaddee, Lady Jayne and Kitty Bluegum. The claim area overlapped the eastern half of the trial area and extended in a north-easterly direction to Mount Margaret (overlapping numerous other claims including the Maduwongga and the Nyalpa Pirniku claims referred to earlier). The claim was refused registration. By orders made on February 2022, the Court dismissed the Jardu Mar claim under s 190F(6) of the NTA: Dimer on behalf of the Jardu Mar People v State of Western Australia [2022] FCA 64.

B.5    Karratjibbin claim

36    The Karratjibbin native title application was filed on 18 February 2022 and was subsequently amended on 2 September 2022. As at the date of the amended application, the named applicants were Jason Colbung, Reginald Yarran (Jnr), Norman Pickett, Murray Yarran and Nancy Henry.

37    In the amended application dated 2 September 2022, the Karratjibbin claim group was described as all those persons who are the biological descendants of Karratjibbin traditional owners and apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby, or who have been adopted by one or more of those biological descendants in accordance with the traditional laws and customs of the Karratjibbin people. However, at the commencement of the trial, the Karratjibbin applicant filed an amended concise statement dated 2 October 2023 which acknowledged that the ancestors Polly and Eva are affinal ancestors for the members of the current Karratjibbin claim group insomuch as Polly and Eva are not known to have any current living descendants. The Karratjibbin applicant also acknowledged that Nimmo was the son of apical ancestor Toby and is not strictly an apical ancestor (as all descendants of Nimmo are also descendants of Toby). Accordingly, the Karratjibbin applicant redefined the Karratjibbin claim group as the descendants (biological or by adoption) of apical ancestors Billy Yambinut and Toby.

38    At the conclusion of the trial, the Karratjibbin applicant conceded that they had not adduced any positive evidence establishing that Toby was an apical ancestor for the purposes of the claim. Accordingly, the Karratjibbin applicant proceeded on the basis that the members of the Karratjibbin claim group are the descendants (biological or by adoption) of Billy Yambinut. A difficulty for the Karratjibbin applicant is that each of the lay witnesses who gave evidence for the Karratjibbin applicant claimed to be Karratjibbin through descent from Nimmo (who was also known as Toby Williams) and not Billy Yambinut.

39    It can be seen that the Karratjibbin claim group is entirely separate from the Marlinyu Ghoorlie claim group (there are no common apical ancestors). Further, the native title application filed by the Karratjibbin claim group did not refer to any connection with the Karlamaya or Kapurn people or claim to be part of the Karlamaya or Kapurn people. Nevertheless, during the trial, the Karratjibbin applicant advanced the contention that they are also entitled to be identified as Karlamaya or Kapurn people.

40    The Karratjibbin application claims the following native title rights and interests in the Karratjibbin claim area:

(a)    where there has been no extinguishment of native title rights and interests, or where any extinguishment must be disregarded, the applicants claim the right to possess, occupy, use and enjoy the lands and waters the subject of the application against the whole world;

(b)    where native title rights and interests have been partially extinguished, the applicants claim the following non-exclusive native title rights and interests:

(i)    to enter and remain on the land, camp, erect temporary shelters and travel over and visit any part of the land and waters;

(ii)    to hunt, fish, gather and take and use traditional resources of the land for any purpose;

(iii)    to take and use water;

(iv)    to make decisions regarding the use and enjoyment of the land and waters by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title claim group; and

(v)    to engage in cultural activities and the transmission of cultural knowledge on the determination area, including visiting places of cultural and spiritual importance and maintaining, caring for and protecting those places by carrying out activities to preserve their physical and spiritual integrity and conducting ceremony and ritual, including burial and burial rites.

B.6    Respondents to the Marlinyu Ghoorlie claim

41    On 22 December 2022, the Court made orders requiring each respondent to the Marlinyu Ghoorlie proceeding other than the State to file a notice stating whether the respondent wished to take an active part in the hearing of the separate questions. The following respondents filed such a notice, although some of the respondents subsequently withdrew, or were removed, as parties to the proceeding.

Elizabeth Sambo

42    By orders of the Court made on 25 November 2019, Elizabeth Sambo became a respondent to the Marlinyu Ghoorlie proceeding, having given notice in the prescribed form of her intention to become a party on 4 October 2019, within the notification period. Ms Sambo actively participated in the trial of the separate questions.

43    Ms Sambo is a member of the Marlinyu Ghoorlie claim group as she is a descendant of both Lucy Sambo and Nellie Champion. However, as at the commencement of the trial of the separate questions, Ms Sambo opposed aspects of the Marlinyu Ghoorlie claim. Having regard to Ms Sambo’s case as stated in her concise statement filed on 28 April 2023, the bases for her opposition were twofold. First, Ms Sambo contested the extent of the area of land and waters that is the subject of the Marlinyu Ghoorlie claim. Second, Ms Sambo disputed the composition of the claim group as defined in the Marlinyu Ghoorlie application. Ms Sambo also disputed the claims made by other respondents in this proceeding, including those of the Cooper respondents (referred to below).

44    Prior to the commencement of the trial, the State brought an interlocutory application seeking to have Ms Sambo removed as a respondent to the proceeding. The application was supported by the Marlinyu Ghoorlie applicant. That application was dismissed on 9 August 2023: Dimer (No 1).

45    As discussed further below, by the conclusion of the trial, Ms Sambo had altered her position and supported the Marlinyu Ghoorlie claim.

The Cooper respondents

46    By an interlocutory application dated 21 December 2022, the Cooper respondents applied to be joined as respondents to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA, having not otherwise sought to be joined during the notification period. The application was, in substance, unopposed by any party to the proceeding and, on 20 February 2022, the Court made orders for their joinder.

47    The Cooper respondents contend that they hold native title rights and interests in the eastern portion of the trial area, which encompasses Bullabulling, Coolgardie, Kalgoorlie and Kanowna, and that the Marlinyu Ghoorlie claim group do not hold any such native title rights and interests in that area. The native title rights and interests claimed by the Cooper respondents include rights to access and use lands and waters, to speak for country, and to protect sacred sites. The Cooper respondents contend that they acquired native title rights and interests in respect of the relevant area by descent from their apical ancestor Nada Bilbear (also known as Aneida). Nada Bilbear is said to be a member of a pre-sovereignty society, the “original tribe of Kalgoorlie”, that held native title rights and interests in the eastern part of the trial area at the time of effective sovereignty. That society is separate and distinct from those which are asserted by the Marlinyu Ghoorlie and Karratjibbin applicants respectively.

48    The Cooper respondents acknowledge that, in the present proceeding, they seek only to defensively assert their native title rights and interests as respondents. They do not seek a positive determination of their native title rights and interests, recognising that in order to seek such a determination they would be required to make an application of the kind listed in s 61(1) of the NTA.

49    Prior to the commencement of the trial, the State brought an interlocutory application seeking to have the Cooper respondents removed as respondents to the proceeding. The application was supported by the Marlinyu Ghoorlie applicant. On 9 August 2023, the Court adjourned that application indefinitely, but gave the State liberty to re-apply at a later date: Dimer (No 1). On 18 September 2023, orders were made granting the Cooper respondents leave to file an amended concise statement and dismissing the State’s application for their removal.

The Badimia respondents

50    By orders of the Court made on 30 November 2022, Darryl Fogarty, Ashley Bell and Beverley Slater (Badimia respondents) were joined as respondent parties to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA.

51    The Badimia respondents gave notice that they wished to participate in the trial of the separate questions and, on 5 May 2023, they filed a concise statement. By their concise statement, the Badimia respondents asserted native title rights and interests (which they wished to protect) in a relatively small area in the western part of the original Marlinyu Ghoorlie claim area. The area abuts the area of the Badimia native title determination.

52    However, on 9 June 2023, the Badimia respondents were given leave to withdraw as parties to the Marlinyu Ghoorlie proceeding. Their withdrawal followed an agreement reached with the Marlinyu Ghoorlie applicant that the Marlinyu Ghoorlie application would be amended to exclude the area of land and waters in which the Badimia respondents claim an interest. In accordance with that agreement, on 21 June 2023 the Marlinyu Ghoorlie claim area was amended to exclude that area.

Denise Colbung

53    On 20 February 2023, at the commencement of the preservation evidence hearing, the Court made orders for the joinder of Denise Colbung as a respondent to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA. On 5 May 2023, Ms Colbung filed a concise statement for the purposes of the trial of the separate questions. In that statement, Ms Colbung contended that the persons holding native title in the trial area are the “Muddawonga-Wongi” people.

54    On 16 May 2023, the Marlinyu Ghoorlie applicant brought an application seeking the removal of Ms Colbung as a party to the proceeding under s 84(8) of the NTA. The removal application was brought on the basis that Ms Colbung had been permitted to join the proceeding in order to advance certain contentions, but her concise statement advanced different contentions. Ms Colbung sought leave to withdraw from the proceeding and, on 29 June 2023, orders were made granting that leave.

Njaki Njaki respondents

55    On 21 June 2023, Sharmain Nelson, Reginald Hayden and Michael Hayden filed an application seeking to be joined as respondents to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA. The basis for the application was a claim that Ms Nelson and the Haydens each hold native title rights and interests in relation to the land or waters in the west of the trial area. Ms Nelson and the Haydens asserted rights and interests as members of the Njaki Njaki people, who they claim are a distinct society or group of people who possess native title rights and interests in that part of the trial area.

56    On 9 August 2023, the application by Ms Nelson and the Haydens to be joined as respondents to the Marlinyu Ghoorlie proceeding was dismissed for the reasons given in Dimer (No 1).

Native Title Services Goldfields

57    On 27 November 2019, Native Title Services Goldfields Limited (NTSG) was recognised as a native title service provider for the Goldfields region of Western Australia pursuant to s 203FE of the NTA. With the consent of the Marlinyu Ghoorlie applicant, the State and NTSG, on 10 September 2020 the Court made an order joining NTSG as a respondent to the proceeding, but subject to the following limitation:

Without leave of the Court, the active participation of the Native Title Services Goldfields Limited is to be limited to issues arising in the proceeding which relate to membership of the Marlinyu Ghoorlie native title claim group and the extent of the Marlinyu Ghoorlie claim area within those parts of the application contained within the Goldfields region of Western Australia, as shown on the map at Attachment A to these orders.

58    On 5 May 2023, NTSG filed a concise statement for the purposes of the trial of the separate questions. By the concise statement, NTSG indicated that it did not know how the separate questions should be answered.

59    On 12 July 2023, NTSG filed an application seeking an order removing the limitation on its participation as a respondent in the proceeding. On 25 August 2023, NTSG filed a further application seeking an order vacating the trial dates or an order that the trial area be partitioned with the trial proceeding in respect of part of the area only. On 5 September 2023, both applications were dismissed for the reasons given in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2023] FCA 1060 (Dimer (No 2)).

60    Subsequently, on 15 September 2023, NTSG filed a notice with the Court stating that it wished to cease to be a party to the proceeding and, on 27 September 2023, the Court granted leave under s 84(7) of the NTA.

B.7    Respondents to the Karratjibbin claim

61    On 22 December 2022, the Court made orders requiring each respondent to the Karratjibbin proceeding other than the State to file a notice stating whether the respondent wished to take an active part in the hearing of the separate questions. The following respondents filed such a notice, but the Badimia respondent subsequently withdrew their notice and the Njaki Njaki respondents were removed as parties to the proceeding.

The Badimia respondents

62    On 26 October 2022, the Badimia respondents filed an application to be joined as respondent parties to the Karratjibbin proceeding pursuant to s 84(5) of the NTA. Subsequently, on 23 March 2023, the Badimia respondents filed a notice of intention to become a party to the Karratjibbin proceeding pursuant to s 84(3) of the NTA and became parties by operation of that section. On 4 April 2023, the application made under s 84(5) was dismissed by the Court (as it was unnecessary).

63    As noted in the context of the Marlinyu Ghoorlie proceeding, the Badimia respondents gave notice that they wished to participate in the trial of the separate questions and, on 5 May 2023, they filed a concise statement (in both the Marlinyu Ghoorlie proceeding and the Karratjibbin proceeding). By their concise statement, the Badimia respondents asserted native title rights and interests (which they wished to protect) in a relatively small area in the western part of the original Marlinyu Ghoorlie claim area and the Karratjibbin claim area. The area abuts the area of the Badimia native title determination.

64    As stated above, in June 2023 the Badimia respondents reached an agreement with the Marlinyu Ghoorlie applicant that the Marlinyu Ghoorlie application would be amended to exclude the area of land and waters in which the Badimia respondents claim an interest. However, the Badimia respondents were unable to reach the same agreement with the Karratjibbin applicant in respect of that area. Accordingly, they remain respondents to the Karratjibbin proceeding. As that area is no longer within the Marlinyu Ghoorlie claim area, it is not part of the trial area for the purposes of the separate questions. On 21 September 2023, the Badimia respondents filed a notice stating that they no longer wished to take an active part in the hearing of the separate questions.

Njaki Njaki respondents

65    On 13 June 2023, Sharmain Nelson, Reginald Hayden and Michael Hayden filed a notice of intention to become a party to the Karratjibbin proceeding pursuant to s 84(3) of the NTA (on the basis that they hold native title rights and interests in part of the Karratjibbin claim area) and became parties to the Karratjibbin proceeding by operation of that section.

66    On 7 September 2023, an order was made removing Ms Nelson and the Haydens as parties to the Karratjibbin proceeding for the reasons given in Colbung on behalf of the Karratjibbin People v State of Western Australia [2023] FCA 1065.

Native Title Services Goldfields

67    On 7 March 2023, NTSG filed a notice of intention to become a party to the Karratjibbin proceeding pursuant to s 84(3) of the NTA (on the basis that it has statutory functions as a representative body in respect of the Karratjibbin claim area) and became a party to the Karratjibbin proceeding by operation of that section.

68    As noted above in the context of the Marlinyu Ghoorlie proceeding, on 5 May 2023, NTSG filed a concise statement for the purposes of the trial of the separate questions (in both the Marlinyu Ghoorlie proceeding and the Karratjibbin proceeding). By the concise statement, NTSG indicated that it did not know how the separate questions should be answered.

69    As also noted above in the context of the Marlinyu Ghoorlie proceeding, on 15 September 2023 NTSG filed a notice with the Court stating that it wished to cease to be a party to the Marlinyu Ghoorlie proceeding and, on 27 September 2023, the Court granted leave under s 84(7) of the NTA. For reasons not explained, NTSG did not file an equivalent notice in the Karratjibbin proceeding and accordingly remains a respondent in the Karratjibbin proceeding. Despite that, and consistently with its position with respect to the Marlinyu Ghoorlie proceeding, it took no part in the trial of the separate questions.

B.8    Gulgoordi-Galgurla Wongi claim

70    The Gulgoordi-Galgurla Wongi claim (WAD 330 of 2023) was filed on 14 December 2023. The application sought a determination of native title in respect of an area of land and waters that took in Kalgoorlie and Coolgardie and was wholly within the boundaries of the Marlinyu Ghoorlie claim. The named applicants were Linden Brownley, Allison Dorothy Dimer and Donald Vincent Ballinger and the application was brought on behalf of the “Gulgoordi-Galgurla Wongi” people who were said to acknowledge and observe the traditional laws and customs of the “Wongi people”.

71    At the time that the Gulgoordi-Galgurla Wongi claim was filed, the Court had heard both lay and expert evidence in the Marlinyu Ghoorlie and Karratjibbin proceedings. Each of the State and the Marlinyu Ghoorlie applicant filed interlocutory applications seeking the dismissal of the Gulgoordi-Galgurla Wongi claim as an abuse of process. On 8 March 2024, the Gulgoordi-Galgurla Wongi claim was dismissed: Brownley on behalf of the Gulgoordi-Garlgurla Wongi People v State of Western Australia [2024] FCA 208.

B.9    Conduct of the trial of the separate questions

72    On 5 October 2022, Bromberg J relevantly made the following orders in each of the Marlinyu Ghoorlie, Maduwongga and Karratjibbin proceedings:

(a)    That the following separate question be listed for hearing and heard separately from any issues of extinguishment of native title:

Who are the holders of native title rights and interests in accordance with s 223 of the Native Title Act 1993 (Cth) in relation to the land and waters covered by the Marlinyu Ghoorlie native title determination application (WAD 647 of 2017)?

(b)    That the Marlinyu Ghoorlie native title determination application, the Karratjibbin native title determination application and the Maduwongga native title determination application be heard together as one proceeding in relation to the separate question.

73    On 22 December 2022, timetabling orders for the hearing of the separate questions were made in each of the proceedings. Relevantly, the orders provided for:

(a)    the filing of notices by each respondent other than the State indicating whether the respondent wished to take an active part in the hearing of the separate questions;

(b)    the filing of concise statements describing the facts and issues in relation to the identity of those persons who hold common or group rights comprising the native title in the land and waters of the trial area and the nature and extent of those rights and interests;

(c)    the filing of expert witness reports;

(d)    the filing of lay witness statements of evidence and other documents to be tendered through each lay witness; and

(e)    the hearing of opening submissions and lay evidence in October 2023 in and around Kalgoorlie, followed by the hearing of expert evidence in Perth and then closing oral submissions in Perth.

74    In subsequent interlocutory hearings, the parties were informed that the separate questions that would be addressed at trial were:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the trial area?

(b)    In relation to that part of the trial area where 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?

75    In February 2023, on application by the Marlinyu Ghoorlie applicant and Elizabeth Sambo in the Marlinyu Ghoorlie proceeding, and by the Maduwongga applicant in the Maduwongga proceeding, the Court received oral and written preservation evidence from three individuals. Those individuals were Brian Champion Snr (the former lead applicant in the Marlinyu Ghoorlie proceeding), Gary Sambo (the brother of Elizabeth Sambo, a respondent in the Marlinyu Ghoorlie proceeding), and Anne Nudding (the second named applicant in the Maduwongga proceeding). The preservation evidence was heard in Kalgoorlie over four days in February 2023. The evidence given by Ms Nudding was given in support of the Maduwongga claim. Gary Sambo died in February 2024.

76    During the preservation evidence hearing, the Marlinyu Ghoorlie applicant applied for orders to restrict certain of the evidence of Brian Champion Snr, being his affidavit dated 3 February 2023, the exhibits to that affidavit, and his oral testimony in respect of the contents of the affidavit. On 10 February 2023, the Court made orders restricting the disclosure of the evidence to:

(a)    any male expert engaged by a participating party;

(b)    any male counsel, solicitor or necessary staff of a participating party; and

(c)    the presiding Judge and those male staff as directed by the Judge.

77    As noted above, the Maduwongga proceeding was dismissed on 28 April 2023. Since that date, none of the individuals comprising the representative applicants in the Maduwongga proceeding have had any role in this proceeding.

78    During April and May 2023, all of the parties participating in the trial of the separate questions filed concise statements describing the facts and issues in relation to the identity of those persons who hold common or group rights comprising the native title in the land and waters of the trial area, and the nature and extent of those rights and interests, for which they contend.

79    Between 2 and 19 October 2023, the lay evidence was heard in Kalgoorlie at the Town Hall and other locations across the trial area. Site evidence was given on the following dates, at the following locations, by the following witnesses:

(a)    on 9 October 2023, evidence was given:

(i)    at Lake Koorkoordine by Reg Yarran Jnr (for the Karratjibbin applicant);

(ii)    at Lake Deborah West by Reg Yarran Jnr (for the Karratjibbin applicant);

(iii)    at a corroboree ground near Lake Deborah by Brian Champion Snr (for the Marlinyu Ghoorlie applicant); and

(iv)    at a camp ground at Southern Cross by Brian Champion Snr (for the Marlinyu Ghoorlie applicant);

(b)    on 10 October 2023, evidence was given:

(i)    at Mukinbudin Cemetery by Brian Champion Snr (for the Marlinyu Ghoorlie applicant);

(ii)    at Culculling by Brian Champion Snr (for the Marlinyu Ghoorlie applicant);

(iii)    at Beribooding Rock by Brian Champion Snr and Brian Champion Jnr (for the Marlinyu Ghoorlie applicant);

(iv)    at Elachbutting by Brian Champion Jnr (for the Marlinyu Ghoorlie applicant); and

(v)    at an ochre site by Brian Champion Jnr (for the Marlinyu Ghoorlie applicant);

(c)    on 13 October 2023, evidence was given:

(i)    at Mount Burges Station by Henry Dimer (for the Marlinyu Ghoorlie applicant);

(ii)    at Warden Finnerty’s House in Coolgardie by Elizabeth Sambo;

(iii)    at the Kulkurti rock hole near Warden Finnerty’s House in Coolgardie by Henry Dimer and Maxine Dimer (for the Marlinyu Ghoorlie applicant);

(iv)    at a traditional meeting place near Coolgardie by Gary Cooper (for the Cooper respondents);

(v)    at the Bluff in Coolgardie by Gary Cooper and Maria Bandry (for the Cooper respondents); and

(vi)    at the Seven Sisters rock holes near Coolgardie by Maria Bandry (for the Cooper respondents);

(d)    on 17 October 2023, evidence was given:

(i)    at Koorara rock hole by Simon Champion (for the Marlinyu Ghoorlie applicant);

(ii)    at the Seven Sisters rock holes near Kalgoorlie by Maria Bandry (for the Cooper respondents);

(iii)    at the Mount Charlotte Reservoir Lookout in Kalgoorlie by Gary Cooper (for the Cooper respondents); and

(iv)    at a Sorry Camp in Kalgoorlie by Maria Bandry (for the Cooper respondents).

80    Expert anthropological evidence was filed between March and September 2023 by:

(a)    Nell Taylor (report dated 30 June 2023), Ray Wood (report dated 12 July 2023) and Dr Fiona Powell (report dated 23 July 2023) on behalf of the Marlinyu Ghoorlie applicant;

(b)    Dr Brendan Corrigan (report dated 11 July 2023) on behalf of the Karratjibbin applicant; and

(c)    Daniel Leo (report dated 30 March 2023, but which was filed on 26 June 2023, and a further report dated 25 September 2023) on behalf of the Cooper respondents.

81    The parties were permitted to provide supplementary reports from their experts in accordance with the orders of the Court (being order 27 made on 22 December 2022, as varied on 10 July 2023), which were to the effect that the supplementary reports must be strictly limited to the following matters:

(a)    a reply to any matter raised in an expert report filed by another party that has not been addressed by the expert in their principal report; and

(b)    a change to the expert’s opinion as a result of lay evidence given during the hearing of lay evidence.

82    Supplementary expert reports were filed by:

(a)    Ms Taylor (report dated 3 November 2023), Mr Wood (report dated 6 November 2023) and Dr Powell (report dated 6 November 2023) on behalf of the Marlinyu Ghoorlie applicant;

(b)    Dr Corrigan (report dated 17 November 2023) on behalf of the Karratjibbin applicant.

83    A conference of experts occurred in the week commencing 20 November 2023, with a joint expert report prepared on 23 November 2023. Expert evidence was heard in the week commencing 11 December 2023.

84    Closing submissions were heard in the week commencing 18 March 2024.

C.    ISSUES IN DISPUTE AND THE PARTIES’ CONTENTIONS

85    The primary issues that are required to be determined on the basis of the evidence adduced at trial, in order to answer the separate questions, are the following:

(a)    Who were the Aboriginal people who held rights and interests in the land and waters of the trial area under their traditional laws and customs prior to the assertion of British sovereignty over that area?

(b)    What were the traditional laws and customs of the Aboriginal people referred to in question (a), so far as can be known?

(c)    Under the traditional laws and customs of the Aboriginal people referred to in question (a), were rights and interests in the land and waters of the trial area acquired by descent or by other means?

(d)    In so far as rights and interests in the land and waters of the trial area are acquired by descent, are the members of the Marlinyu Ghoorlie claim group and/or the Karratjibbin claim group the descendants of the Aboriginal people referred to in question (a)?

(e)    In so far as the members of the Marlinyu Ghoorlie claim group and/or the Karratjibbin claim group are the descendants of the Aboriginal people referred to in question (a), do they continue to acknowledge and observe the traditional laws and customs under which rights and interests in the land and waters of the trial area are possessed and by which they have a connection to the land and waters of the trial area?

(f)    If so, what are those rights and interests?

86    As noted above, each of the parties participating in the trial of the separate questions was required to file a concise statement (as an alternative to formal pleadings). The concise statements were intended to contain the parties’ contentions with respect to the identity of the persons who hold common or group rights comprising the native title in the land and waters of the trial area, and the nature and extent of those rights and interests. In closing submissions, the positions of some of the parties had altered from their concise statements. Each of Elizabeth Sambo and the Karratjibbin applicant sought leave to file an amended concise statement reflecting their changed position. Leave was granted in the case of Elizabeth Sambo, but was refused in the case of the Karratjibbin applicant. This section of the reasons summarises the principal contentions advanced by each of the parties in their concise statements with respect to the issues in dispute and notes where the contentions were altered in closing submissions.

C.1    The Marlinyu Ghoorlie applicant

87    The Marlinyu Ghoorlie concise statement is dated 17 April 2023. The contentions advanced by the Marlinyu Ghoorlie applicant in its concise statement aligned with its application.

88    The Marlinyu Ghoorlie applicant advanced the following principal contentions:

(a)    At sovereignty, there was only one body of normative laws and customs in the trial area. Rights and interests in land in the trial area were acquired and transmitted by descent from ancestors who themselves were descended from the original owners of the trial area. The primary means of descent was biological descent, though children and, rarely, adults, could be adopted or incorporated by rights-holders and thereby themselves acquire transmissible rights and interests in land. At sovereignty, none of birth on country, long-term residence on country, knowledge of the sites or mythology of the country, or status as a “law man” or a person who has been through men’s law, conferred rights and interests in land, though each of these matters may have conferred prestige or status.

(b)    At sovereignty, the people who were united in and by their acknowledgement and observance of the body of normative laws and customs of the trial area were the Karlamaya Kapurn people. The language of the Karlamaya Kapurn people was the Karlamaya / Kapurn language, also known as the ‘Karlamaya Kapurn’ language. The Karlamaya / Kapurn language was the language for the whole of the trial area. The society to which the Karlamaya Kapurn people belonged was distinct from both the Noongar society to the west and south-west and from the Western Desert society to the east and north. At sovereignty, the three features of laws and customs that were together diagnostic of the Karlamaya Kapurn people and country were:

(i)    corporate totemic clans, and recruitment through the male line by presumptive biological descent, each clan possessing an intramural estate carved out of the wider communal Kapurn country (which distinguished the Karlamaya Kapurn from the Western Desert people to their north and east);

(ii)    named generation moieties called Beerungoomat and Jooamat, each with a bird totem (which distinguished the Karlamaya Kapurn from both the Noongar to their west and south-west and the Western Desert people to their north and east); and

(iii)    male initiation that included circumcision (which distinguished the Karlamaya Kapurn from the Noongar people to their west and south-west).

(c)    The normative system of laws and customs of the Western Desert Cultural Bloc did not govern the acquisition, transmission and/or exercise of rights and interests in land in any part of the trial area at sovereignty. Western Desert laws and customs for the acquisition and transmission of rights in land are fundamentally different from those of the Karlamaya Kapurn people because they are far less structured and ordered, with descent, birth on country, long-term residence on country, knowledge of the sites and mythology of country, and status as a ‘law man’ or person who has been through men’s law all being normative means for acquiring rights and interests in land. Western Desert people did not permanently reside in the trial area until after effective sovereignty (in the mid-1890s for the eastern part of the trial area), when the establishment of the towns of Kalgoorlie and Coolgardie became an attractant for Western Desert people who migrated to places near the trial area, such as Laverton and Edjudina, from places far away in the desert such as the Warburton Ranges.

(d)    Since the Karlamaya Kapurn normative system of laws and customs allowed acquisition of rights and interests in land only through descent from a Karlamaya Kapurn ancestor who held rights in the trial area, the normative system does not allow Western Desert persons who are not descended from a Karlamaya Kapurn person to acquire rights in the claim area.

(e)    By the early 20th century, the Western Desert four-section kinship system was coming into some degree of use in the north-eastern part of the trial area, laid over but not displacing the pre-existing generation moiety system of the Karlamaya Kapurn people. Through the whole of the 20th century until at least the 1980s, Western Desert law men (called wati) acknowledged and respected the authority of Karlamaya Kapurn law men (such as the late Ted Champion and Jack Champion).

(f)    Karlamaya Kapurn law men made a collective decision to end the practice of men’s law (in the sense of male initiation with circumcision) in the trial area in the 1940s for various reasons.

(g)    In or around the 1980s, Karlamaya Kapurn law men allowed certain Western Desert law men from Coonana, Cundeelee and Tjuntjunjarra, whom they had taught the details of some sites in the Coolgardie area, to look after those sites in a ‘regent’ capacity. Some Western Desert women are still permitted use of an increase site in the Coolgardie area. To the extent any Western Desert people currently carry out any activities with respect to sites in the eastern part of the trial area it is through the express or tacit permission of the Karlamaya Kapurn people. The sites remain the property of the Karlamaya Kapurn people, who have the right under their laws and customs to refuse entry to these Western Desert people.

(h)    At a meeting in the early 1990s, Western Desert elder Don Sinclair and Karlamaya Kapurn elder Phil Donaldson and others agreed the boundary between Karlamaya Kapurn country and Western Desert country at the location of the current eastern boundary of the trial area. This agreed boundary reflects the traditional boundary between the two societies in this area.

(i)    The Karlamaya Kapurn people have continued to acknowledge and observe the laws and customs governing acquisition, transmission and exercise of rights and interests in land, and other, related, laws and customs, substantially uninterrupted since sovereignty, including by each generation since effective sovereignty. For example, the Karlamaya Kapurn people have continued to acknowledge and observe: the requirement of descent as the means for acquiring rights and interests in land; the laws and customs governing use and management of country, including sites; transmission of knowledge of the sites and mythology of the trial area to subsequent generations; acknowledgement of the presence of Karlamaya Kapurn ancestor spirits in the trial area; and the laws and customs governing use of resources.

(j)    There have been some modifications to relevant laws and customs since sovereignty, but these modifications have not changed the fundamental pre-sovereignty traditional nature of the relevant laws and customs. For example, the pre-sovereignty patrilineal form of the descent rule (tracing descent through the male line) has been replaced by the cognatic form of descent (tracing descent through either male or female parents or ancestors). The intramural rights of the totemic patriclans are now held communally at the language group level, such that all Karlamaya Kapurn people may exercise the same rights and interests throughout the trial area, subject to observance of particular laws and customs.

89    The Marlinyu Ghoorlie applicant contends that the persons who presently hold native title rights and interests in the trial area are all the descendants of the identifiable Karlamaya Kapurn apical ancestors who are known to have descendants, namely Warada and Kaddee (husband and wife under traditional law), Lucy Sambo and Nellie Champion (also known as Kajjaman). Many of their descendants are referred to in the evidence. Although the fact of descent is disputed in some cases, it is helpful in understanding the evidence to identify the relationships for which the Marlinyu Ghoorlie applicant contends. Those relationships are reflected in the following descriptions of family descent which are organised in a generational structure (with the names of significant people from an evidentiary perspective highlighted in bold type):

(a)    Warada and Kaddee (born around 1840) are the parents of Nyuumani (also known as King Billy) (born around 1860 in Coolgardie and died in 1935), as well as Kandowela and Walbong Bulbongandnoon.

(i)    Nyuumani / King Billy and Karan / Mary-Ann are the parents of Tom Roundhead (born around 1879 and died about 1920), Frank Roundhead (born in the 1880s and died 1959), Elizabeth Wilson, Johnny Wilson (born around 1895 and died 1929) and Alice Wilson (also known as Minjin) (died 1948).

(A)    Tom Roundhead and Eva Roundhead (born around 1892 and died 1952) are the parents of Don Roundhead (born 1916 and now deceased). Frank Roundhead was Don Roundhead’s adoptive father after Tom Roundhead died.

(B)    Johnny Wilson (born around 1895 and died 1929) and Greta Rule are the parents of George Wilson (born 1914 and died 1997); and Johnny Wilson and Lily Kalimara are the parents of Cecil Wilson (born 1917 and now deceased).

(C)    Alice (Minjin) Wilson (born 1899 and died 1948) and Richard (Dick) Donaldson (born 1895 and died 1976) are the parents of Phil Donaldson (born 1921 and now deceased), Clem Donaldson (born 1923 and now deceased), Henry Richard Donaldson (born 1925 and died 1977), Robert Donaldson (born 1927 and now deceased) and Dorothy Dimer (née Donaldson) (born 1929 and now deceased).

(1)    The children of Dorothy Dimer and Ollan Dimer (born 1928 and now deceased) include Henry (Ricky) Dimer (born 1952) and Maxine Dimer (born 1954).

(2)    The children of Henry Donaldson and Olive Donaldson (née McGrath) include Trevor Donaldson (born 1956).

(b)    Lucy Sambo (born around 1894 and died 1939) and Cordi Sambo are the parents of Willie (Bill) Sambo (born 1917 and died 1956), William Sambo (born 1921 and died 1999), Arthur (Aussie) Sambo (born 1922 and died 1964), Rita Sambo (born 1927 or 1929 and died 2000), Cadley Sambo (born 1929 and now deceased) and Bert (Bertie) Sambo (born 1935 and died 1988).

(i)    Willie Sambo and Lillian Sambo (née Ellis) are the parents of Desmond Sambo (born 1940 and now deceased), Vina Maude Sambo (born 1942), Malcolm Sambo (born 1948) and Clive Sambo (born 1951).

(A)    The children of Desmond Sambo and Rosina Sambo (née Humphries) include Lillian Bonney (née Sambo) (born 1960).

(ii)    William Sambo and Linda Champion (born 1923 and died 2011) are the parents of Dennis Sambo (born 1942), William (Bill) Maxwell Sambo (born 1944 and died 1999), Shirley Trott (née Sambo) (born 1945), Gary Sambo (born 1947 and died 2024), Elizabeth Sambo (born 1949), Davina Sambo (born 1955), Desley Sambo (born 1957) and Saul Timothy Sambo (born 1963).

(A)    The children of Shirley Trott and Martin Trott include Darryl Alan Trott (born 1964).

(iii)    Arthur (Aussie) Sambo and Rosie Ellis are the parents of Angelina Mary Ellis, Lillian Ellis, Maureen Ellis, Clarence Ellis and Arthur Dean Sambo.

(iv)    Rita Sambo and Reginald Rule are the parents of Clive Rule.

(v)    Cadley Sambo and Gertrude Champion are the parents of Isobel Sambo, Bobby Sambo, Richard Sambo, Trevor Sambo, Tessa Sambo, Casey Sambo, Billy-Joe Sambo, Cynthia Sambo and Robin Sambo.

(vi)    Bert Sambo and Mary Mead Narkle are the parents of Lyall Sambo, Sandra Narkle, and Eugene Narkle.

(c)    Nellie Champion (also known as Kajjaman) (born around 1865 and died in 1929) and Jim Champion are the parents of Edward (Ted) Champion (born around 1898 and died 1968) and Jack (also known as Nokkana) Champion (born around 1900 and died 1981).

(i)    Edward (Ted) Champion and Elsie Champion (née Nelson) are the parents of Linda Champion (born 1923 and died 2011), Kathleen Champion (born 1925 and died 1964), Neil Champion (born 1929 and died 1977), David John Champion (born 1930 and now deceased), Malcolm Ben Champion (born 1934 and now deceased), Gertrude (Gertie) Champion (born 1936 and died 1997), Brian Champion (referred to herein as Brian Champion Snr) (born 1937), Bruce Champion (born 1943), Greta Alison Champion (born 1945 and died 2013), Robert Tex Champion (born 1949 and died 1950).

(A)    The children of Linda Champion and William Sambo are recorded in the Sambo genealogy in para (b).

(B)    The children of Kathleen Champion and Perry Jackson include Trixie Jackson (née Champion) (born 1949).

(C)    The children of David (Dave) John Champion and Miriam Eva Champion (née Yarran) (died 2024) include Charles Stevan Champion (born 1963) and Simon Hayley Champion (born 1964).

(D)    The children of Malcolm Ben Champion and Mary Constance Tucker (née Reynolds) include Jacqueline Shep Bilney (née Champion) (born 1957) and Malcolm Edward Champion (born 1959).

(1)    The children of Jacqueline Bilney and Malcolm Bilney include Leeroy Bilney (born 1983).

(E)    The children of Brian Champion Snr and Mavis Laura Wilson are Mark Champion (born 1966), Lionel Champion (born 1967), Tania Champion (born 1970), Darren Champion (born 1970 now deceased), Robyn Champion (born 1972) and Brian Champion Jnr (born 1973).

(ii)    Jack (Nokkana) Champion and Ethel Balladonia are the parents of Laurie Champion (born 1935). Jack (Nokkana) Champion and Margaret (Topsy) Abraham are the parents of Colin Champion (born 1939), Sylvia Champion (born 1941 and died 1942), Rita Champion (born 1945 and died 1946), Betty Champion (born 1945 and died 2013), Irma Champion (born 1951), Johnny Champion (born 1954) and Doreen Champion (born 1967).

90    During the trial, there was no change to the contentions advanced by the Marlinyu Ghoorlie applicant and its closing submissions were consistent with its concise statement.

91    With respect to the Karratjibbin claim, the Marlinyu Ghoorlie applicant contends that:

(a)    there was no Aboriginal group called the Karratjibbin people in any part of the trial area at sovereignty; and

(b)    claimed Karratjibbin apical ancestors Billy Yambinut and Toby Williams were not Karlamaya Kapurn and, accordingly, rights and interests in the Karratjibbin claim area cannot be acquired through descent from either of these persons.

92    As noted above, in closing submissions the Karratjibbin applicant acknowledged that none of the members of the claim group were descended from Polly or Eva. For completeness, it can be noted that the Marlinyu Ghoorlie applicant contends that:

(a)    the Karratjibbin applicant had mistakenly conflated two different women called Polly — a Noongar woman known as “Pretty Polly” who was married to claimed Karratjibbin apical ancestor Toby and a Karlamaya Kapurn woman named Polly from Southern Cross;

(b)    rights and interests in the Karratjibbin claim area cannot be acquired through descent from the woman known as Pretty Polly;

(c)    none of the Karratjibbin claim group are descended from Polly from Southern Cross;

(d)    Eva was a Karlamaya Kapurn woman and any living descendants of Eva are descended from Karlamaya Kapurn ancestors Warada and Kaddee; and

(e)    none of the Karratjibbin claim group are descended from Eva.

93    With respect to the contentions advanced by the Cooper respondents, the Marlinyu Ghoorlie applicant contends that there is insufficient evidence to find that their claimed ancestor, Aneida / Nada Bilbear, held rights and interests in the trial area. The Marlinyu Ghoorlie applicant contends that Aneida / Nada Bilbear was most likely a Western Desert person, and was not a Karlamaya Kapurn person.

C.2    Karratjibbin applicant

94    The contentions advanced by the Karratjibbin applicant shifted markedly during the course of the trial, including in closing submissions. It is necessary to identify the movement in the Karratjibbin applicant’s contentions, because the changes had the effect of undermining their claim to hold native title in any part of the trial area and to reinforce the Marlinyu Ghoorlie claim.

95    The Karratjibbin applicant filed a concise statement dated 14 April 2023. Consistently with their native title application, the contentions advanced in the concise statement were to the effect that the Karratjibbin people were a distinct group of people, being the descendants (biological or by adoption) of apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby, who had their own language which was not associated with the language group known as Karlamaya. Despite that, the Karratjibbin applicant contended that their traditional laws and customs included:

(a)    a system of social organisation based on generation moieties called Beerungoomat and Jooamat, each with a bird totem; and

(b)    male initiation that included circumcision and subincision.

96    In that concise statement, the Karratjibbin applicant also claimed that Karratjibbin people observe in their spiritual beliefs the existence of the creative being called the Waugal, a snake which made a trail from Uluru, to Warburton, Laverton, Bullfinch and ultimately to the Swan River in Perth, forming the hills and gullies. The use of the name Waugul is significant, as that is the name of the snake creative being in the Noongar language (also spelled Wagyl).

97    On the first day of the trial of the separate questions (2 October 2023), the Karratjibbin applicant applied for leave to amend the concise statement. The application was not opposed and leave was granted. Three significant amendments were made:

(a)    First, the Karratjibbin applicant redefined the Karratjibbin claim group as the descendants (biological or by adoption) of apical ancestors Billy Yambinut and Toby. The Karratjibbin applicant acknowledged that the ancestors Polly and Eva are affinal ancestors for the members of the current Karratjibbin claim group insomuch as Polly and Eva are not known to have any current living descendants. The Karratjibbin applicant also acknowledged that Nimmo was the son of apical ancestor Toby and is not strictly an apical ancestor (as all descendants of Nimmo are also descendants of Toby).

(b)    Second, the Karratjibbin applicant no longer contended that the Karratjibbin language was distinct from the Karlamaya language. Instead, the Karratjibbin applicant contended that the Karratjibbin language was a dialect of the Karlamaya language group.

(c)    Third, the Karratjibbin applicant altered the name of the snake creative being from Waugal to Waarlu.

98    The trial was conducted on the basis of the amended concise statement dated 2 October 2023. The contentions in that document were structured in two parts. In the first part, the Karratjibbin applicant advanced a series of contentions about the Karratjibbin people and the laws and customs acknowledged and observed by them at sovereignty and today. In the second part, the Karratjibbin applicant addressed the contentions advanced by the Marlinyu Ghoorlie applicant and, to some extent, identified the similarities and differences in the respective contentions advanced.

99    At the conclusion of the trial, the Karratjibbin applicant conceded that they had not adduced any positive evidence establishing that Toby was an apical ancestor for the purposes of the claim. Accordingly, the Karratjibbin applicant proceeded on the basis that the members of the Karratjibbin claim group are the descendants (biological or by adoption) of Billy Yambinut. A difficulty for the Karratjibbin applicant is that each of the lay witnesses who gave evidence for the Karratjibbin applicant claimed to be Karratjibbin through descent from Toby Williams (that is, Nimmo) and not Billy Yambinut. It will be necessary to return to that inconsistency in the evidence presented by the Karratjibbin applicant.

100    The facts concerning Billy Yambinut and his descendants are disputed. Nevertheless, it is helpful in understanding the evidence to identify the relationships for which the Karratjibbin applicant contends in respect of Toby Williams and Billy Yambinut (while recognising that there were numerous inconsistencies and changes in the evidence and submissions advanced on behalf of the Karratjibbin applicant). Those relationships are reflected in the following descriptions of family descent which are organised in a generational structure (with the names of significant people from an evidentiary perspective highlighted in bold type):

(a)    Toby and Pretty Polly are the parents of Pompey Williams (born around 1879), Nimmo (also known as Toby Williams) (born around 1884 and died 1910) and Teddie Williams (born around 1889).

(i)    Nimmo and Julia Penny (also known as Dunniyan) are the parents of Beatrice Winmar (born 1908, died 1975).

(A)    Beatrice Winmar and Norman Yarran Snr are the parents of Norman Yarran (also known as Doy) (died 1997), Conway Yarran (died 1986), Reg Yarran Snr (born 1944 and died 2004), Dorcas May Pickett (née Yarran), Rhoda, Laurel and Ivy (also known as Bertha) Colbung (née Yarran).

(1)    The children of Norman (Doy) Yarran and Myrtle Yarran (née Mead) (died 2019) include Gail Lorraine Yarran (born 1952).

(2)    The children of Reg Yarran Snr and Glenys Yarran (née Lawrence) include Reg Yarran Jnr (born 1977).

(3)    The children of Dorcas May Pickett and Joseph Frederick (Fred) Pickett include Norman Lawrence Pickett (born 1959).

(4)    The children of Ivy Colbung and Peter Colbung include Jason Colbung (born 1974).

(b)    Billy Yambinut (born around 1856) and Annie (Yamin or Yamier) Donald / McIntyre are the parents of Julia Penny (Dunniyan) (born 1893 and died 1952).

(i)    Julia Penny (Dunniyan) and Nimmo (Toby Williams) are the parents of Frances Nimmo (born 1907) and Beatrice Winmar (born 1908, died 1975).

(A)    The children of Beatrice Winmar and Norman Yarran Snr are referred to above in para (a)(i)(A).

101    The principal contentions advanced about the Karratjibbin people and the laws and customs acknowledged and observed by them at sovereignty and today are as follows:

(a)    The traditional laws acknowledged and the traditional customs observed by the Karratjibbin people which underpinned land ownership and land usage of the Karratjibbin people included a requirement that children were taught the ‘Lore’ and customs of the Karratjibbin people, including through a process of being taught about places created during the period when the land was created, ceremonies, songs and stories related to them and the laws and customs related to the land which the Karratjibbin people acknowledge and observe.

(b)    The Karratjibbin people, in accordance with the laws they acknowledge and customs they follow, inherit rights to the Karratjibbin claim area through descent from ancestors with recognised rights and interests.

(c)    The Karratjibbin people historically followed a system of social organisation based on endogamous alternate generation divisions and had no section system. Those of one generation belonged to one division and married within the same division. Their children belonged to a second division, being the same division as their grandparents. The two divisions are Beerungoomat and Jooamat, the names of two birds, the kingfisher and the bee-eater, Beerungoomat being a lighter colour than Jooamat. Marriage was endogamous within the divisions of this group, but exogamous for the local group: ie, a Beerungoomat would always marry a Beerungoomat from another area. For example, a Karratjibbin person of Southern Cross might go to Mount Jackson to find a partner. If a Karratjibbin person married a person from a neighbouring district who belonged to a four-section system of social categories, the Karratjibbin person might adopt the section names derived from the other group.

(d)    Karratjibbin people historically followed initiation practices which differentiated them from their western neighbours. This included circumcision and subincision.

(e)    The Karratjibbin people have maintained a continuous connection with the land and waters of the Karratjibbin claim area, including by the following activities:

(i)    Regular visits to the area for the purposes of hunting and cooking in the traditional manner. Animals obtained from the area by hunting include kangaroo, emu and bush turkey, setting lizard traps in rocky areas and duck hunting at Lake Deborah.

(ii)    Collecting traditional bush foods, tools and medicines, including crustaceans from the creeks and lakes, berries for jams, prickly bush for medicinal purposes, manna gum for sores and emu eggs for art and exchange with other groups and using the waters of the country.

(iii)    Activities related to the observation and protection of places of traditional significance, including taking part in heritage surveys.

(iv)    Teaching their children the history of the Karratjibbin people, their traditional stories and songs and dances, the history of songs, including the use of natural ochres for bodily decoration, bush skills, and about areas of traditional and religious significance, their association with rights to land and obligations and activities related to their protection.

(f)    While the ritual initiation of men is no longer carried out and the ritual performance at sacred sited by initiated men no longer takes place among the Karratjibbin people, as it was by their ancestors, “Law” grounds remain places of special significance as places continuing to be the locus of spiritual forces for the Karratjibbin people. Numerous rock holes in the landscape containing water are regarded as “living” sites with spiritual potency in relation to which Karratjibbin people show due respect, knowing that, in their tradition, a failure to do so may result in personal calamity. Karratjibbin people who are not initiated “Lawmen” respect, by avoiding, sites of spiritual significance to Karratjibbin people which are potentially dangerous to them, including certain known places where their tradition is that they should get away from those places before dark for fear of their children being stolen away.

(g)    Karratjibbin people observe a relationship between the stars in the night sky and creation stories forming part of their cultural beliefs, including the connection between the Milky Way and the Sun being created by the Emu, as a creation figure and an emu egg.

(h)    Karratjibbin people observe in their spiritual beliefs the existence of the creative being, the Waarlu, a snake which made a trail from Uluru, to Warburton, Laverton, Bullfinch, Bardoc, Mount Stirling, Beverley, York and Northam to the Swan River, forming the hills and gullies. In their belief system other animals at the time of creation followed the Waarlu trail: the Wayud (emu), kangaroo, dingo, goanna and Yuwan (bobtail goanna). Ancestors of the Karratjibbin become part of the country with which they are associated. The rules of the Karratjibbin require calling out to the country of the ancestral spirits and other specific rituals when visiting sites such as waterholes.

(i)    Karratjibbin people have historically been assigned, attributed with or gained one or more totems (borongur), placing them in a special relationship with particular animals and obliging them not to kill, eat or harm those animals. An example is the dog totem (dwerd borongur) based on a legend about two big dogs who ate two men and vomited them up. Some current Karratjibbin people have inherited totems from their parents.

102    The foregoing contentions have several similarities with the contentions advanced on behalf of the Marlinyu Ghoorlie applicant. Those similarities were highlighted in the second part of the concise statement, where the Karratjibbin applicant addressed the contentions advanced by the Marlinyu Ghoorlie applicant. Indeed, the concise statement stated that the laws and customs by which the Karratjibbin people are connected to their claim area are distinct from the Noongar and Western Desert societies but share commonalities with some peoples who are attributed with the Kapurn label. In that regard, the following contentions advanced by the Karratjibbin applicant reflected strong similarities to the contentions advanced by the Marlinyu Ghoorlie applicant:

(a)    With respect to transmission of rights and interests in land and waters, the Karratjibbin applicant contends that, at sovereignty, rights and interests in land in the Karratjibbin claim area were acquired and transmitted by descent from ancestors who themselves descended from the original owners of the Karratjibbin claim area. The primary means of descent was biological descent, however children could be adopted or incorporated by rights-holders and acquire transmissible rights and interests in land. At sovereignty, neither birth on country nor long term residence on country conferred rights and interests in land, though birth on country may have impacted upon totemic associations.

(b)    With respect to the laws and customs acknowledged and observed at sovereignty, the Karratjibbin applicant contends that the laws and customs that were together diagnostic of Karratjibbin people and country were:

(i)    corporate totemic clans, and recruitment through the male line by presumptive biological descent, each clan possessing an intramural estate carved out of the wider communal Karratjibbin country;

(ii)    named generation moieties called Beerungoomat and Jooamat, each with a bird totem, which distinguished the Karratjibbin people from their neighbours; and

(iii)    male initiation that included circumcision and subincision, and female initiation, which distinguished the Karratjibbin from the Noongar people to their west and south-west.

103    Following the hearing of lay evidence, the Karratjibbin applicant applied for leave to further amend its concise statement. In broad terms, the amendments were to advance alternative contentions to the original contentions advanced by the Karratjibbin applicant. The alternative contentions concerned, first, the Karratjibbin claim area and, second, the balance of the Marlinyu Ghoorlie claim area (that is, the trial area that does not overlap with the Karratjibbin claim area). The alternative contentions were as follows:

(a)    With respect to the Karratjibbin claim area, the Karratjibbin applicant acknowledged in the alternative that other persons may also possess native title rights and interests in that area, including the descendants of Kaddee and Warada and the descendants of Lucy Sambo (that is, three of the four apical ancestors in the Marlinyu Ghoorlie claim).

(b)    With respect to the balance of the trial area, the Karratjibbin applicant contended in the alternative that the Karratjibbin people also hold native title rights and interests in that area and that the rights are held and exercised in common with other persons holding native title rights and interests within that area (including the descendants of Kaddee and Warada and the descendants of Lucy Sambo).

104    On 21 November 2023, the Karratjibbin applicant was refused leave to further amend its concise statement for the reasons given in Colbung on behalf of the Karratjibbin People v State of Western Australia (No 2) [2023] FCA 1449 (Colbung (No 2)).

105    By its closing submissions at trial, the contentions advanced by the Karratjibbin applicant changed in the following ways:

(a)    First, the Karratjibbin applicant conceded that it had not adduced any positive evidence establishing that Toby (father of Nimmo) was an apical ancestor for the purposes of the claim. Accordingly, the Karratjibbin applicant proceeded on the basis that the members of the Karratjibbin claim group are descendants of Billy Yambinut and that Billy Yambinut “had an association with the Karratjibbin claim area” at the time of effective sovereignty.

(b)    Second, the Karratjibbin applicant conceded that it had been unable to establish that the Karratjibbin people constituted (at sovereignty) a distinct society in their own right. The Karratjibbin applicant contends that at sovereignty the Karratjibbin claim area was occupied by estate groups who were clustered around specific site locations and whose rights in county were largely transmitted on a patrilineal basis. The Karratjibbin applicant contends that the Karratjibbin people constitute a subsidiary group within a broader normative system. The rights and interests held by the Karratjibbin applicant are derived from laws and customs acknowledged and observed in common with other estate holding groups, members of whom variously identify as Kapurn, Karlamaya, Karlaku or otherwise (the broader normative system).

(c)    Third, the Karratjibbin applicant recognises the rights and interests of the descendants of Lucy Sambo and Kaddee and Warada in country adjacent to the Karratjibbin claim area. The Karratjibbin applicant further concedes that the descendants of Nellie Champion are more likely than not to be part of the broader normative system and to hold rights and interests as part of that broader normative system in at least part of the area subject to the Marlinyu Ghoorlie claim.

106    In many respects, the closing submissions advanced by the Karratjibbin applicant reflected the contentions advanced in their proposed amended concise statement for which leave to amend was refused. As observed in Colbung (No 2) at [61], the difficulty with the Karratjibbin applicant advancing those contentions is that the contentions were refuted by evidence given by the lay witnesses on behalf of the Karratjibbin applicant:

(a)    Reg Yarran Jnr denied that Karratjibbin people possessed native title rights and interests with the descendants of Warada and Kaddee and Lucy Sambo and denied that the Karratjibbin claim area is Kapurn country. Mr Yarran also gave evidence that he believed that Warada and Kaddee were “Wongi” people.

(b)    Gail Yarran gave evidence that she did not know any Karlamaya or Kapurn people, she was unsure whether Elizabeth Sambo was a Kapurn person and that of the one or two Dimer people she knows, she is unaware of where they come from. Ms Yarran did not consider herself to be Kapurn and did not know whether the Kapurn people were the same as Karratjibbin people.

(c)    Jason Colbung gave similar evidence that he did not know who Kapurn people were.

(d)    Norman Pickett gave evidence that he does not know where Kapurn country is, he does not know anything about the laws and customs of Kapurn people, he could not say he is a Kapurn person and he did not believe that Kapurn “was a part of him”.

C.3    Elizabeth Sambo

107    The contentions advanced by Ms Sambo also shifted markedly during the course of the trial.

108    Ms Sambo filed a concise statement dated 28 April 2023. At that time, Ms Sambo contended that four groups of Aboriginal people hold native title rights and interests in separate parts of the trial area, being the Kapurn people, the Noongar people (specifically, a subset of the Noongar people sometimes known as the Ballardong people), the Badimia people and the Ngadju people. In respect of those parts of the trial area in which the Kapurn people hold native title rights and interests, Ms Sambo’s contentions as to the traditional laws and customs acknowledged and observed by them were largely the same as those advanced by the Marlinyu Ghoorlie applicant. However, Ms Sambo contended that the apical ancestors of the Kapurn people are Lucy Sambo, Kaddee and Warada, but not Nellie Champion. Ms Sambo contended that Nellie Champion was a Noongar (Ballardong) person who held rights and interests in the Ballardong part of the trial area and was not a Kapurn person who held rights and interests in the Kapurn part of the trial area. Consistently with the Marlinyu Ghoorlie applicant, Ms Sambo contended that the normative system of laws and customs of the Western Desert Cultural Bloc did not govern the acquisition, transmission and/or exercise of rights and interests in land in any part of the trial area at sovereignty and Western Desert people did not permanently reside in the trial area until after sovereignty.

109    In February 2024 after the conclusion of the hearing of the lay and expert evidence in the proceeding, Ms Sambo applied for leave to file an amended concise statement. The application was not opposed and leave was granted on 8 February 2024. The amendments made by Ms Sambo were material. In short, Ms Sambo’s amended contentions align completely with those of the Marlinyu Ghoorlie applicant. Ms Sambo contends:

(a)    At sovereignty, there was a single group of people, united by and in their acknowledgement and observance of their laws and customs, who held rights and interests within trial area. Those people included the ancestors Lucy Sambo, Kaddee and Warada, and Nellie Champion.

(b)    The single society has continued to exist from effective sovereignty to the present as a body united by its acknowledgement and observance of laws and customs, despite the dislocation caused by colonisation.

(c)    At sovereignty, there existed within the single society sub-groups or clans, with recruitment though biological descent, which enjoyed particular rights and responsibilities and accordingly had responsibility for and control of discrete parts of the trial area. These particular rights found their basis in the observance of the traditional laws and customs of the society. However, due to the pressures of European incursion and colonisation after effective sovereignty, these sub-groups or clans folded into broader groupings. Amongst those who hold the common or groups rights within the trial area today, there remains people who hold a stronger affinity and knowledge to areas within the trial area.

(d)    The primary means of acquisition of rights and interests is via biological cognatic descent, though children and, rarely, adults, could be adopted or incorporated by rights-holders in accordance with the traditional laws and customs of that system and thereby themselves acquire rights and interests in land.

(e)    The persons holding the common or group rights comprising the native title in the trial area are those people descended from one or more of the ancestors referred to above. The members of that group of people identify themselves by numerous different terms, none of which are determinative of the group of people. Ms Sambo herself uses the term ‘Kaparn’. The words ‘Kapurn’, ‘Gubrun’, ‘Kaboon’, ‘Kabul’ and ‘Kabu(d)n’ are alternate spellings of ‘Kaparn’.

110    Consistently with her original concise statement, Ms Sambo contends that the normative system of laws and customs of the Western Desert Cultural Bloc did not govern the acquisition, transmission and/or exercise of rights and interests in land in any part of the trial area at sovereignty, and Western Desert people did not permanently reside in the trial area until after effective sovereignty.

111    Ms Sambo’s closing submissions were consistent with her amended concise statement.

C.4    Cooper respondents

112    The Cooper respondents filed a concise statement on 28 April 2023 and an amended concise statement on 19 September 2023. The amendments reflected, to some extent, the opinions advanced by the anthropological expert retained by the Cooper respondents, Daniel Leo. Nevertheless, the contentions advanced by the Cooper respondents remained relatively consistent between the original and the amended concise statements.

113    The Cooper respondents contend that they hold native title rights and interests in the eastern portion of the trial area including Bullabulling, Coolgardie, Kalgoorlie and Kanowna. The native title rights and interests held by the Cooper respondents are communal rights and interests in the sense that the Cooper respondents hold those rights and interests as members of a community but they assert those rights and interests as personal rights and interests in the Marlinyu Ghoorlie proceeding and not in any representative capacity.

114    The area in respect of which the Cooper respondents assert native title rights and interests is similar to, although not identical to, that part of the Maduwongga claim that overlapped the Marlinyu Ghoorlie claim. In relative terms, it is a modest portion of the Marlinyu Ghoorlie claim area (and therefore of the trial area), and does not overlap the Karratjibbin claim area. In respect of the trial area outside of the eastern portion in respect of which the Cooper respondents assert native title rights and interests, the Cooper respondents advanced no contentions.

115    The Cooper respondents advanced the following principal contentions:

(a)    At effective sovereignty, the trial area and an area immediately to the east of the trial area were an ‘interstitial zone’ where the cultural practices of two regional societies overlapped. In that interstitial zone, there was a graded or phased transition of cultural practices from the Western Desert regional society to the east, north-east and north, to the Noongar regional society to the west, south-west and south, which includes the Karlamaya Kapurn people among others. The interstitial zone is likely to have had the following features: intermarriage; consociation and cohabitation, especially through runs or lines and range; shared ritual practices and participation, particularly in relation to male initiation; shared Dreaming tracks and intergroup transmission of knowledge about Dreaming sites; the diffusion of the Western Desert section system westwards and southwards; and the diffusion of the Western Desert ‘multiple pathways’ tenurial system. At effective sovereignty, it is likely that the interstitial zone comprised distinct peoples of separate landed affiliations using a mix of cultural practices.

(b)    The Cooper respondents possess native title rights and interests in the eastern portion of the trial area through descent from their apical ancestor Nada Bilbear (also known as Aneida). Nada Bilbear was born between 1875 and 1880 in or near the place that later became Gazetted as Kalgoorlie. Nada Bilbear gave birth to her son, Thomas Henry Cooper, at Kanowna in 1896 or 1897. Effective sovereignty in the eastern portion of the trial area occurred in or about 1893. Nada Bilbear was a member of a pre-sovereignty society that held native title rights and interests in the eastern part of the trial area including the area that is now Kalgoorlie. Nada Bilbear has therefore been described as a member of the “original tribe” of Kalgoorlie.

(c)    The normative system that gave rise to Nada Bilbear’s native title rights and interests were those laws and customs of the pre-sovereignty society that held rights and interests in the eastern part of the interstitial zone. That normative system of that society was Western Desert laws and customs that had been influenced by the location of that society in the interstitial zone. Specifically, the content of those traditional laws and customs was:

(i)    a ‘multiple pathways’ tenurial system with recruitment via: birthplace in the area; ceremonial responsibility for country; long-term residence; association with a part of the area known as a ‘run’; biological descent through patrifiliation and matrifiliation; the raised-up adoption of children; incorporation including by relocation to a spouse’s country;

(ii)    a four-class section system for social organisation; and

(iii)    laws and customs associated with tjukurpa (Dreaming) including: the identification of totems; and describing one’s country in terms of sacred sites or geographic places in the landscape.

(d)    The persons holding native title rights and interests in the eastern portion of the interstitial area at or around effective sovereignty include: Nada Bilbear; Bob Marakadji; Jimmy and Minnie (siblings of Kitty Bluegum); Kitty Bluegum; Mary, who is an ancestor of Jean Walker; Tom Roundhead; Daisy Decruse; Morry Newman; Bilgidee; Kaddee; and Warada.

(e)    Since effective sovereignty, rights and interests in the eastern portion of the trial area have been acquired and transmitted by the ‘multiple pathways’ tenurial system described above including biological descent through patrifiliation and matrifiliation.

116    The Cooper respondents’ closing submissions were largely consistent with the contentions advanced in their concise statement.

117    As already noted, the Cooper respondents contend that they hold native title rights and interests in the eastern part of the trial area as descendants of an Aboriginal woman named Nada Bilbear (also known as Aneida). The fact that the Cooper respondents are descendants of Nada Bilbear is not disputed; the dispute concerns the question whether Nada Bilbear held rights and interests in the eastern portion of the trial area. It is nevertheless helpful in understanding the evidence to identify the relationship of the Cooper respondents to Nada Bilbear. The relationship is reflected in the following descriptions of family descent which are organised in a generational structure (with the names of significant people from an evidentiary perspective highlighted in bold type):

(a)    Nada Bilbear (born around 1875-80) and Arthur Hasthorpe are the parents of Thomas Edward Cooper (born around 1898 and died 1951).

(i)    Thomas Edward Cooper and Trilby Ashwin are the parents of Vera Cooper (born 1922 and now deceased), Lorna Walker (née Cooper) (born 1924 and now deceased), Tom Cooper (born 1926 and died 1936), Lena Gerardi (née Cooper) (born 1928 and now deceased), Bessie Clinch (née Cooper) (deceased) and Norman Cooper Snr (born 1932 and died 1992).

(A)    Norman Cooper Snr and Betty Lowah (née Robertson) are the parents of Susan Wyatt (née Cooper), Milton Cooper (deceased), Norman Cooper Jnr (born 1957), Alan Cooper (deceased), Victor Cooper (born 1958) and Thomas Cooper.

(B)    Norman Cooper Snr and Laurel Cooper (née Johnston) are the parents of Maria Bandry (née Cooper) (born 1964) and Gary Cooper (born 1967).

C.5    State of Western Australia

118    The State’s concise statement is dated 5 May 2023.

119    With respect to the position immediately prior to the assertion of British sovereignty, the State advanced the following contentions:

(a)    There was at least one normative system of traditional laws and customs that was acknowledged and observed in the trial area and by which rights and interests were conferred and held in relation to the land and waters of that area.

(b)    The State does not know whether rights and interests were possessed under Karlamaya Kapurn laws and customs in the entirety of the trial area, including in particular the area generally to the west of Southern Cross.

(c)    The State nevertheless adopts the following contentions advanced by the Marlinyu Ghoorlie applicant:

(i)    At sovereignty, rights and interests in land in the trial area were acquired and transmitted by descent from ancestors who themselves were descended from the original owners of the trial area.

(ii)    The primary means of descent was biological descent, though children and, rarely, adults, could be adopted or incorporated by rights-holders and thereby themselves acquire transmissible rights and interests in land.

(iii)    At sovereignty, none of: birth on country; long-term residence on country; knowledge of the sites or mythology of the country; or, status as a ‘law man’, or a person who has been through men’s law, conferred rights and interests in land, though each of these matters may have conferred prestige or status.

(iv)    At sovereignty, the three features of laws and customs that were together diagnostic of the Karlamaya Kapurn people and country were: corporate totemic clans, and recruitment through the male line by presumptive biological descent, each clan possessing an intramural estate carved out of the wider communal Kapurn country; named generation moieties called Beerungoomat and Jooamat, each with a bird totem; and male initiation that included circumcision.

(v)    The society to which the Karlamaya Kapurn people belonged was distinct from both the Noongar society to the west and south-west, and from the Western Desert society to the east and north.

(vi)    The normative system of laws and customs of the Western Desert Cultural Bloc did not govern the acquisition, transmission and/or exercise of rights and interests in land in any part of the trial area in 1829.

(vii)    Western Desert persons did not permanently reside in the trial area until after effective sovereignty (in the mid-1890s for the eastern part of the trial area), when the establishment of the towns of Kalgoorlie and Coolgardie became an attractant for Western Desert persons who migrated to places near the trial area, such as Laverton and Edjudina, from places far away in the desert such as the Warburton Ranges.

120    With respect to the answers to the separate questions (that is, who — if anyone — presently holds native title rights and interests in the trial area), in its concise statement the State said that it did not know the answer to that question.

121    In its closing submissions, the State submitted that:

(a)    neither the Karratjibbin applicant nor the Cooper respondents had proved that they held native title rights and interests in, respectively, the Karratjibbin claim area and the eastern portion of the trial area; and

(b)    whilst there is some persuasive evidence in support of the Marlinyu Ghoorlie case, there is a real question as to whether the evidence overall is sufficient to establish the existence of native title rights and interests.

122    The State submitted that, on its assessment of the evidence, the appropriate conclusion is that no person possesses native title rights and interests in the trial area.

D.    APPLICABLE LEGAL PRINCIPLES

D.1    The statutory provisions

123    By the application filed pursuant to s 61(1) of the NTA, the applicant seeks a determination of native title in relation to the trial area. A “determination of native title” is defined in s 225 of the NTA as:

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

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

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

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

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

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

124    The separate questions concern only paras (a) and (b) of that definition. The separate questions require the Court to determine:

(a)    whether, but for any question of extinguishment, native title exists in relation to any and, if so, what land and waters of the trial area; and

(b)    if so, who are the persons, or each group of persons, holding the common or group rights comprising the native title and what is the nature and extent of the native title rights and interests?

125    Section 223(1) of the NTA provides the following definition of the terms “native title” and “native title 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.

D.2    Judicial explication of native title rights and interests

126    As the plurality (Gleeson CJ, Gummow and Hayne JJ) observed in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (Yorta Yorta) at [32], [45], [75]-[76], the native title rights and interests to which the NTA refers are rights and interests finding their origin in pre-sovereignty traditional law and custom; they are not a creature of the common law and they are not created by the NTA. Their Honours observed (at [76]):

The Native Title Act, when read as a whole, does not seek to create some new species of right or interest in relation to land or waters which it then calls native title. Rather, the Act has as one of its main objects (s 3(a)) “to provide for the recognition and protection of native title” (emphasis added), which is to say those rights and interests in relation to land or waters with which the Act deals, but which are rights and interests finding their origin in traditional law and custom, not the Act …

127    Australian courts have long recognised that the connection which Aboriginal people have with their country, emanating from their traditional laws and customs, is essentially spiritual. In Western Australia v Ward (2002) 213 CLR 1 (Ward), the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said (at [14], citations omitted):

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that:

“the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”.

It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. …

128    The plurality in Ward explained that the statutory definition of native title provided by s 223 has the following elements (at [17]):

(a)    first, the rights and interests may be communal, group or individual;

(b)    second, the rights and interests must be in relation to land or waters;

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

(d)    fourth, by those laws and customs (in other words, the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders under which the rights and interests are possessed), the Aboriginal peoples or Torres Strait Islanders have a connection with the land or waters; and

(e)    fifth, the rights and interests are recognised by the common law of Australia.

129    Each of those elements of the definition has been the subject of detailed explication in the authorities.

Traditional laws acknowledged and traditional customs observed

130    The phrase “traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders” in s 223(1)(a) is a reference to laws and customs having a normative content, being a body or system of normative rules that existed before the assertion of British sovereignty: Yorta Yorta at [38]-[40] and [46]. To speak of rights and interests possessed under an identified body of laws and customs is to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs: Yorta Yorta at [50]). Laws and customs and the society which acknowledges and observes them are inextricably linked: Yorta Yorta at [55].

131    A ‘traditional’ law or custom is one which has its origins in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of British sovereignty and which has been passed from generation to generation in the society, usually by word of mouth and common practice: Yorta Yorta at [46]. The reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty: Yorta Yorta at [47].

132    The plurality in Yorta Yorta was careful to note that reference to a normative system of traditional laws and customs may be distracting if undue attention is given to the word ‘system’, particularly if it were to be understood as confined in its application to systems of law that have the characteristics of a European body of written laws (at [39]). Nonetheless, the plurality observed that the term recognises the fundamental premise from which the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) proceeded, that the laws and customs of the indigenous peoples of Australia constituted bodies of normative rules which could give rise to, and had in fact given rise to, rights and interests in relation to land or waters (at [40]). Accordingly, the laws and customs in which the relevant rights or interests are founded must be laws or customs having a normative content and deriving from a body of norms or normative system that existed before sovereignty (at [38] and [42]). In Wyman v Queensland (No 2) [2013] FCA 1229 (Wyman (No 2)), Jagot J observed (at [455]) that “normative content” means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society.

133    The word “society” does not appear in s 223 of the NTA. The plurality in Yorta Yorta explained (at [49]) that, in the context of the NTA, the use of the word “society” is intended to convey no more than a body of persons united in and by its acknowledgment and observance of a body of laws and customs. Their Honours explained, by way of footnote, that they chose the word “society” rather than “community” to emphasise the close relationship between the identification of the group and the identification of the laws and customs of that group. In Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (Alyawarr), the Full Court (Wilcox, French and Weinberg JJ) expressed the following caution with respect to the use of the term “society” in the native title context (at [78]):

… The relevant ordinary meaning of society is “a body of people forming a community or living under the same government” — Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes.

134    Similarly, in Bodney v Bennell (2008) 167 FCR 84 (Bodney), the Full Court (Finn, Sundberg and Mansfield JJ) observed that it is not relevant to consider, for the purpose of s 223(1)(a), the continuation of a pre-sovereignty society as distinct from continued acknowledgement of traditional laws and customs. Their Honours stated (at [74]):

… It is not the society per se that produces rights and interests. Proof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society’s normative system are those that existed at sovereignty, because those laws and customs may change and adapt. Change and adaptation will not necessarily be fatal. So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional. An enquiry into continuity of society, divorced from an inquiry into continuity of the pre-sovereignty normative system, may mask unacceptable change with the consequence that the current rights and interests are no longer those that existed at sovereignty, and thus not traditional.

135    The fact that there has been some change to, or adaptation of, traditional laws or customs in the period between the assertion of British sovereignty and the present day will not necessarily be fatal to a native title claim, provided the laws and customs can still be seen to be traditional. In Yorta Yorta, the plurality recognised that Aboriginal and Torres Strait Islander societies have experienced profound changes by reason of European settlement, causing inevitable changes to the structures and practices of those societies (at [89]). The laws and customs acknowledged and observed by an Aboriginal or Torres Strait Islander society will not cease to be traditional merely because the laws and customs have had to change or adapt in response to changed circumstances caused by European settlement. However, it remains necessary to demonstrate “that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs” (at [89]). In assessing the extent of changes or adaptations made to pre-sovereignty laws and customs, difficult questions of fact and degree may emerge (at [82]). In Bodney, the Full Court observed (at [120]) that:

In accordance with Yorta Yorta HC 214 CLR 422, when determining whether rights and interests are traditional, the proper enquiry is whether they find their origin in pre sovereignty law and custom, and not whether they are the same as those that existed at sovereignty. Clearly laws and customs can alter and develop after sovereignty, perhaps significantly, and still be traditional. …

136    Further, the fact that there has been some interruption of enjoyment or exercise of native title rights or interests is also not fatal to a native title claim. Section 223(1)(a) concerns the present possession of rights and interests, not their exercise, and s 223(1)(b) is concerned with the present existence of a relevant connection between the claimants and the land or waters: Yorta Yorta at [84].

137    The definition of native title rights and interests in s 223(1) does not require that all members of a given community or group have continued to acknowledge and observe traditional laws and customs; the relevant question is whether the community or group, as a whole, has sufficiently acknowledged and observed the relevant traditional laws and customs: De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose (No 2)) at [58] (Wilcox, Sackville and Merkel JJ). In State of Western Australia v Sebastian (2008) 173 FCR 1 (Sebastian), the Full Court (Branson, North and Mansfield JJ) observed (at [84]) that:

… The body of laws and customs under which native title rights and interests are possessed by a group of persons does not require that each member of the group has precisely the same knowledge of those laws and customs or that each member of the group fully comprehends in precisely the same way as each other member of the group how those laws and customs operate. …

138    Similarly, in Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (No 2) (2008) 181 FCR 300; [2008] FCA 1929, Bennett J observed (at [152], citing Sebastian):

The fact that Worimi describes some of the practices, such as hunting and fishing methods, differently from the description given by the other witnesses does not derogate from his evidence. It could well be the case that there were different ways of observing traditions. As was pointed out in Western Australia v Sebastian (2008) 248 ALR 61 at [84], a ‘body of laws and customs’ does not require identical practice, nor that each member of a group has precisely the same knowledge or comprehends the laws and customs in precisely the same way.

Rights and interests in relation to land and waters

139    Paragraph (a) of s 223(1) requires not only an identification of the relevant traditional laws or customs, but also the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs: Ward at [18].

140    Native title is properly understood as comprising a “bundle of rights”, reflecting the fact that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom may comprise several rights or interests and several kinds of rights and interests: Ward at [95]. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land: Ward at [95]. See also Bodney at [140].

141    In Ward, the plurality accepted the claimants’ submission that the right to “speak for country” was a core concept of traditional law and custom. Their Honours explained the content of this right as follows (at [88], [90], [91]):

88    … It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others (cf s 225(e)). The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law's concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.

…

90     As we have said, it may be accepted that the right to be asked for permission and to speak for country is a core concept in traditional law and custom. As the primary judge’s findings show, it is, however, not an exhaustive description of the rights and interests in relation to land that exist under that law and custom. It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with “country” in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer.

91    Reference was made in Mabo [No 2] to the inherent fragility of native title. One of the principal purposes of the NTA was to provide that native title is not able to be extinguished contrary to the Act (s 11(1)). An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more than the right to be asked for permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of the land.

A connection with the land or waters

142    Paragraph (b) of s 223(1) requires that the relevant group of Aboriginal peoples or Torres Strait Islanders have a connection with the claimed land or waters by “those laws and customs” (being the laws and customs identified in respect of para (a)). Thus, s 223(1) involve two inquiries: under para (a), for the rights and interests possessed under traditional laws and customs; and under para (b), for connection with land or waters by those laws and customs: Ward at [18]; 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]. For that reason, the inquiries may depend upon the same evidence: Ward at [18] and, most recently, Stuart v South Australia [2025] HCA 12; 99 ALJR 731 (Stuart) at [19] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

143    As stated earlier, the connection which Aboriginal and Torres Strait Islander peoples have with country is essentially spiritual: Ward at [14]. The plurality 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. …

144    Connection involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs; this relationship may be evidenced by its physical presence there but also in other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it: Alyawarr at [92], cited with approval in Bodney at [48]. 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]. 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].

145    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 physical presence on substantial parts of their traditional lands or waters: Bodney at [172], affirmed in Stuart at [24]. In De Rose (No 2) the Full Court observed (at [62]):

… as the High Court made clear in Ward (HC) at [64], para (b) is not directed to how Aboriginal peoples use or occupy land or water. It is directed to whether the peoples have a connection to land or water by the traditional laws acknowledged and the traditional customs observed by them. It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.

146    In Alyawarr, the Full Court said (at [88]):

… To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land. …

147    For the same reasons, whether claimants continue to reside in the claim area is a relevant but not determinative consideration on the issue of connection. As R D Nicholson J observed in Daniel v Western Australia [2003] FCA 666 at [421]:

In bringing attention to that evidence [of connection] it will be important to have in mind where claimants are not resident on the claim area or portions of it. It will be equally important to have in mind the other lessons of that evidence, such as the reasons for that fact, whether attempts have been made to overcome it and whether it has in fact led to loss of connection with the claim area. This is particularly important in relation to the Yindjibarndi claimants, in relation to whom the evidence establishes that they now all live out of the claim area. From an examination of the evidence they have given I am satisfied that this historical circumstance has not broken the Yindjibarndi connection with their land and waters. …

148    In Neowarra v State of Western Australia [2003] FCA 1402, Sundberg J was satisfied that the evidence disclosed sufficient connection to satisfy s 223(1)(b) notwithstanding that a number of claimants lived outside the claim area, in Mowanjum and in Derby in northern Western Australia. His Honour observed (at [353]):

… There is continued acknowledgment of traditional laws and observance of traditional customs. Traditional ceremonies are enacted at Mowanjum and other settlements such as Maranbabidi. Ritual knowledge is passed on from generation to generation. Children are taught the laws and customs by their parents and grandparents. Stories from history, such as the Wanalirri story, are passed on and widely known. Many senior claimants were able to give detailed descriptions of the boundaries of their ancestral countries and language areas. There is evidence, especially from Paddy Neowarra, of the wurnan routes. There is also much evidence that where physical connection is not maintained with country, that is mainly due to practicalities – distance, the location of many claimants far from their country (eg at Mowanjum, outside the claim region), age and difficulty of access to rough terrain. I am satisfied that the Mowanjum claimants have maintained their connection with their countries, even though they are located away from them. They maintain that connection by practising their laws and customs at Mowanjum, and by asserting claims to country inherited from their forebears and having that assertion respected by their peers. I find that it is a characteristic of their laws and customs that a connection with country can be maintained by way of that assertion and acceptance. …

D.3    Required analysis

149    As has been explained in a number of decisions, s 223(1) of the NTA requires the Court to consider the laws and customs of the present day claim group and to ascertain whether, under those laws and customs, the members of the claim group possess rights and interests in the claim area and, by those laws and customs, have a connection to the claim area. If they do, the Court then asks whether those laws and customs can be said to be traditional, noting that the concept of ‘traditional’ is one which accommodates necessary adaptation of those laws and customs in response to European settlement of the claim area and the assertion of British sovereignty over the claim area (and the Australian continent): Croft (on behalf of the Barngarla Native Title Claim Group) v South Australia [2015] FCA 9; 325 ALR 213 at [640] (Mansfield J); Starkey v South Australia (2018) 261 FCR 183 (Starkey) at [46(d)] (Reeves J with whom White J agreed). This follows from the fact that the requirements of s 223(1) are drawn in the present tense: the definition is concerned with the traditional laws and customs presently acknowledged and observed and whether the claimants currently possess rights and interests under those laws and customs and have a current connection with the land and waters concerned by those laws and customs: Yorta Yorta at [85]; Stuart at [20]-[21]; Starkey at [48].

150    The present day focus of the required analysis was explained by the Full Court in Wyman v Queensland (2015) 235 FCR 464 (North, Barker and White JJ) as follows (at [182]-[186]):

182    Depending upon the evidence that is led in any case, claimants may establish that they continue to have a normative society rooted in the classical, sovereignty society out of which rights and interests contended for continue to be possessed, even where a range of rules and practices under laws and customs have ceased to be followed.

183    In the course of making an inquiry as to whether such a normative society continues, evidence of the loss of some classical laws and customs may be relevant, as may be the apparent creation of some new laws and customs. The inquiry remains, however, whether there continues to be a traditional normative society, notwithstanding there has been some loss, disuse or abandonment.

184    That inquiry is not properly made if it merely involves a “ticking off”, as it were, of classical laws and customs identified by the evidence having regard to the evidence of contemporary practices. There remains a requirement to consider whether what has been maintained, where that is found to be the case, demonstrates the maintenance of a normative system that is rooted in the sovereignty normative system.

185    Even where a group, or even an individual, has apparently lost much, but despite the vicissitudes of life since the coming of Europeans has maintained certain laws and customs under which rights and interests are possessed, native title may still be found to exist. This is because it may be seen, in an appropriate case, that the traditional normative system in material respects has not been lost, fallen into disuse or abandoned.

186    The question is whether the evidence in any case demonstrates that claimants are possessed of rights and interests under laws and customs that are rooted in the sovereignty laws and customs. Even a few claimants, or a single claimant, may possess such rights and interests, as indeed the s 223 definition of native title allows.

151    As explained by Barker J in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204(Badimia) at [356], s 223 does not require that the present day Aboriginal society maintains particular features of a “classical” society (ie, a society before European settlement). His Honour observed (at [358]-[360]):

358     In some instances, the continuing “vitality” of a group who have remained relatively unaffected, in relation to their law and customary practices, by the European settlement of Australia may be obvious, even to non-indigenous outsiders without any ethnographic training or experience. It may be that within that particular group the classical hallmarks of a pre-sovereignty group, as reflected in the anthropological evidence, are still extant. Depending on what part of Australia the group is from, members of the group may still speak their own distinctive Aboriginal language as a first language. They may observe a range of traditional rules concerning birth, initiation, marriage and death. They may have a section and subsection system or moiety system and kinship system that is on display for all to see, and conduct ceremonies involving many people. That same apparently classical group may also still depend, particularly among the members of the upper generations, on animals hunted, fish and birds caught, and foods gathered on their traditional country. But, depending on the evidence led in any case, the absence of a range of indicators of such a classical Aboriginal “society” does not necessarily mean that there is not today a body of persons united by their acknowledgement of traditional laws and observance of traditional customs under which they possess rights and interests in relation to their traditional country. A group of claimants, for example, may be extremely cross-cultural in the 21st century, that is to say, have their feet firmly planted in a broader Australian post-sovereignty society and live a contemporary life outside a claim area, and still maintain a connection to their traditional country in a way that meets the requirements of the s 223 definition of native title.

359     All that may be considered perhaps a long way of saying that merely because claimants may no longer converse in a distinctive Aboriginal language, conduct rites and ceremonies or live a bush life on country, for example, does not mean they cannot prove native title under the NTA.

360     It follows that the loss of many of the attributes of an inferred classical Aboriginal society will not necessarily carry with it the consequence that a claimant application must fail. The inquiry required under native title law under the NTA, as Yorta Yorta demonstrates, is more nuanced than that. Rather, it is driven by the need to make a factual inquiry into whether the requirements of s 223 have been met.

D.4    Problems of proof

152    In State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) (2013) 211 FCR 150, the Full Court (Allsop CJ, Marshall and Mansfield JJ) observed (at [34]):

… litigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. …

153    While native title litigation is not ordinary inter partes litigation, it is still litigation that is to be conducted and determined in accordance with the civil standard of proof: Sandy on behalf of the Yugara People v State of Queensland (2017) 254 FCR 107 at [34] (Reeves, Barker and White JJ). As Rangiah J observed in Malone v Queensland (2021) 287 FCR 240 at [99]:

It is true that litigation under the NT Act is not ordinary private inter partes litigation, at least in the senses that a determination may affect the interests of persons who are not parties and that the matter ordinarily remains in mediation throughout its currency. However, native title litigation does have many of the features of ordinary private inter partes litigation. The applicant bears the onus of proving that, aside from questions of extinguishment, native title exists in relation to the claim area: Western Australia v Ward (2000) 99 FCR 316 at [114], [120]. Section 140(1) of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the Court must find the case of a party proved if satisfied that the case has been proved on the balance of probabilities. Section 82(1) of the NT Act provides that the Court is bound by the rules of evidence, except to the extent that it otherwise orders.

154    As observed by Mortimer J (as her Honour then was) in Narrier v Western Australia [2016] FCA 1519 at [403], the requirement to prove the case on the balance of probabilities does not require the exclusion of all doubts, disconformities and possibilities. It has been recognised in many native title cases that applicants face unique problems of proof, arising from the statutory requirement to prove the continued acknowledgement and observance of laws and customs that are traditional, in circumstances where such laws and customs have historically been transmitted from generation to generation through an oral tradition. In Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510, Mortimer J (as her Honour then was) provided the following explanation of what the civil standard of proof requires in the context of a native title application (at [13]):

… the Court’s answers to the Separate Questions depend on reaching a view about what, on the evidence before it, are more likely than not to be the facts. That is what the civil standard “balance of probabilities” means. The Court does not decide what the “truth” is in any absolute sense. The Court is not in that sense the arbiter of history. The Court decides whether the party who must prove the necessary facts has shown the facts it contends for are more likely than not to have existed. In circumstances which involve the level of historical reconstruction that these Separate Questions do, that is not only all that is required; it is all that can reasonably be expected. This exercise is carried out on the basis of the evidence adduced, and inferences which can reasonably be drawn from that evidence. The Court must assess what, reasonably and rationally, can be made of the evidence before it. …

155    In most native title cases, witness testimony will be incapable of providing direct evidence of the laws and customs acknowledged and observed at the time of the assertion of British sovereignty, and the continued acknowledgment and observance of the laws and customs at all times since. Inevitably, there will be gaps in the historical record. In those circumstances, it is necessary for the Court to draw appropriate inferences based on a combination of witness testimony, historical records and anthropological opinion. In De Rose v State of South Australia [2002] FCA 1342 (De Rose), O’Loughlin J concluded as follows (at [570]):

… I am of the view that, having regard to the nature of evidence that is prevalent in native title cases (being only oral histories of cultures supplemented to a very limited degree by occasional rock art and artefacts) I would be entitled to draw the necessary inferences in favour of the claimants, provided there was a proper foundation for me to do so: see the remarks of Kirby P (as he then was) in Mason v Tritton at 588. That is, if I were to be satisfied that the claimants currently have a connection with the claim area through traditional laws and customs observed and acknowledged, and the best evidence available provides some support for the presence of that connection in the past (traceable by various means such as ancestors, marriage, migration and incorporation and even tribal disputes and wars), it might be open to me to make a finding of substantial maintenance of continuity of connection from sovereignty to the date of the application for a determination of native title; this might even be so notwithstanding significant gaps in the chronology in the historical timeline for the claim area. To place any higher burden of proof on the claimants, who have a wholly oral tradition that reaches back reliably no further than three or (in a few cases) four generations, would be manifestly oppressive.

156    Similarly, in Gumana v Northern Territory of Australia (2005) 141 FCR 457, Selway J concluded (at [201]):

… [W]here there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement. …

D.5    Lay Aboriginal evidence and expert evidence

157    It has been said on many occasions that the evidence of Aboriginal witnesses about the traditional laws and customs they acknowledge and observe today, and their rights, interests and responsibilities with respect to land and waters, is of the highest importance in native title cases: see for example, De Rose at [351]; Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2005] FCA 777 at [48], approved (in that respect) on appeal in Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2010] FCAFC 26; 266 ALR 537 (Sampi) at [57]; Malone v State of Queensland (the Clermont Belyando Area native title claim) (No 5) [2021] FCA 1539; 397 ALR 397 (Malone (No 5)) at [195]-[196]. As observed by North J in Manado (on behalf of Bindunbur Native Title Claim Group) v Western Australia [2017] FCA 1367 at [42]:

… the oral evidence of Aboriginal people is usually more able to convey the nature of the spiritual beliefs from which the laws and customs derive and which bind the people to the land. The way in which such evidence is given often displays the extent to which the tradition is both deeply held and is a living tradition governing the everyday lives of the witnesses.

158    However, it has long been recognised that expert evidence, including particularly anthropological evidence, is also important in native title cases: Wyman (No 2) at [478]); Malone (No 5) at [197]. Anthropological evidence is routinely adduced in native title cases. That an anthropologist has specialised knowledge based on his or her training, study or experience is rarely in contest. As discussed by R D Nicholson J in Daniels v Western Australia [2000] FCA 858; 178 ALR 542 (Daniels) at [24]:

The specialised knowledge of an anthropologist derives from the function to be performed by the anthropologist and for which he or she is trained and in relation to which study has been undertaken and experience gained. "Anthropology" is the science of humankind, in the widest sense: The New Shorter Oxford English Dictionary p 87. Cultural or social anthropology is the science of human social and cultural behaviour and its development. Socio-cultural anthropology is traditionally divided into ethnography and ethnology. The former is the primary, data-gathering part of socio-cultural anthropology, that is, field work in a given society. This involves the study of everyday behaviour, normal social life, economic activities, relationships with relatives and in-laws, relationship to any wider nation-state, rituals and ceremonial behaviour and notions of appropriate social behaviour.

159    One of the primary purposes of anthropological evidence is to assist the Court to understand the nature and content of the traditional laws and customs of a claim group. As Mansfield J explained in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory [2004] FCA 472; 207 ALR 539 (at [89]):

… Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.

160    As recognised by Mansfield J in the foregoing passage, an expert anthropologist, or indeed historian, can assist the Court by assembling, organising and evaluating the available historical records and information concerning the Aboriginal people who occupied the claim area from the time of European settlement to the present day. Such material may include public records, newspaper reports, diaries and writings of European settlers and amateur and professional ethnographic research. The Court may also be assisted by genealogical evidence, again based on available historical records. Evidence may also be received from linguists, analysing the use of Aboriginal languages and place names, and from archaeologists. All such evidence may be of importance to supplement the evidence of Aboriginal witnesses, particularly in cases, such as the present, where there is a conflict between the evidence of the Aboriginal witnesses.

161    In the present case, the Court heard testimony from a significant number of Aboriginal witnesses and evidence from five anthropologists. The Court’s assessment of that evidence is set out in the next two sections of these reasons.

F.    LAY WITNESS EVIDENCE

162    As noted earlier, lay witness evidence was given on behalf of the Marlinyu Ghoorlie applicant, the Karratjibbin applicant, Elizabeth Sambo and the Cooper respondents at the Kalgoorlie Town Hall in February 2023 (at the preservation evidence hearing) and at the Kalgoorlie Town Hall and at several sites within the trial area in October 2023. The lay evidence is considered in this section of the reasons.

163    In addition to hearing evidence from the lay witnesses, the Court received documentary evidence of statements made by deceased forebears of the Marlinyu Ghoorlie claim group and the Karratjibbin claim group. That evidence took several forms, including records of interview with anthropologists, affidavits prepared for earlier native title claims in respect of the trial area and transcripts of oral testimony given in earlier native title proceedings. Generally, that evidence was received without objection pursuant to the exception to the rule against hearsay in s 63 of the Evidence Act 1995 (Cth) (Evidence Act). That evidence is also considered in this section of the reasons.

164    As a general observation, when assessing the veracity and probative force of evidence given by an Aboriginal witness who claims to possess an interest in the land and waters of a claim area, the Court must give close attention to the witness’s personal history including: the identity of their forebears; where they grew up and where they have lived during their life; and the persons from whom, and the circumstances in which, they acquired knowledge of country and knowledge of the traditional laws, customs, language and culture pertaining to the country. Where there is conflict in the evidence concerning the traditional laws, customs, language and culture pertaining to an area of land and waters, the Court must assess the veracity and probative force of a witness’s evidence by reference to the sources of the witness’s knowledge. This reflects the fundamental requirement of the NTA that native title rights and interests have their origin in pre-sovereignty traditional law and custom which have been transmitted from generation to generation to the present day. The lay witness evidence given on behalf of the different parties varied in the extent to which it addressed the witness’s personal history.

F.1    Lay witness evidence for the Marlinyu Ghoorlie applicant

Introduction

165    The Marlinyu Ghoorlie applicant called 13 lay witnesses to give evidence. Most of the witnesses were members of the Marlinyu Ghoorlie claim group. Two of the witnesses were Aboriginal men who were not members of the claim group. The evidence of the Marlinyu Ghoorlie lay witnesses is considered in this section of the reasons.

166    The principal contentions advanced by the Marlinyu Ghoorlie claim group have been summarised earlier in these reasons and it is unnecessary to repeat them. The evidence given by the Marlinyu Ghoorlie lay witnesses is largely consistent with and supportive of those contentions.

Brian Champion Snr

167    Brian Champion Snr is a senior elder of the Karlamaya Kapurn people, being the people on whose behalf the Marlinyu Ghoorlie native title claim has been made. Brian initiated the Marlinyu Ghoorlie claim.

168    Brian Champion Snr’s current residential address is in Boulder.

169    Brian Champion Snr gave evidence on several occasions, and in several forms, in this proceeding.

170    First, for the purpose of the preservation evidence hearing conducted by the Court in February 2023, Brian Champion Snr gave evidence in the following forms:

(a)    Brian made a statement dated 19 February 2023 which was tendered in evidence.

(b)    Brian also swore an affidavit dated 3 February 2023 which annexed two video interviews conducted by anthropologist David English with Brian (access to which is gender-restricted). The first video was titled Kangubulinya (Uncle and Nephew) and was recorded on 14 December 2022 at a secret location (which Brian wishes to protect) in the vicinity of Coolgardie / Kalgoorlie / Boulder. The second video was titled Yintirri and was recorded on 15 December 2022 at Brian’s home.

(c)    Sabine Albers affirmed an affidavit dated 1 February 2023 which annexed video interviews conducted by anthropologists employed by Terra Rosa Consulting with Brian between 9-15 December 2022 at various locations in the trial area.

(d)    Brian also gave preservation evidence at the Kalgoorlie Town Hall over the course of three days between 20-22 February 2023 before Bromberg J. He was cross-examined extensively during that time.

171    Second, for the purpose of the lay evidence hearing conducted in October 2023, Brian Champion Snr made a statement dated 3 September 2023, which was tendered in revised form and dated 1 October 2023. He gave evidence at the Kalgoorlie Town Hall on 4 October 2023 and at the following sites on the following days:

(a)    a corroboree ground near Lake Deborah on 9 October 2023;

(b)    a campground on the outskirts of Southern Cross on 9 October 2023;

(c)    the Mukinbudin Cemetery on 10 October 2023;

(d)    a rock hole and traditional campsite called Culculling on 10 October 2023; and

(e)    a cave at Beringbooding Rock on 10 October 2023.

172    On each occasion, he was cross-examined. Further cross-examination occurred on 18 October 2023 at the Kalgoorlie Town Hall.

173    I found Brian Champion Snr to be an honest and reliable witness. He answered questions directly and fully, and demonstrated a deep knowledge of the matters that were the subject of his evidence. At times he became impatient with the questioner during cross-examination, but he always sought to return to the question when directed to do so. I accept his evidence.

174    Brian Champion Snr used the full names of deceased persons in his statements for the sake of clarity, although he told the Court he would normally try to avoid this, especially in the case of a recently deceased person, and would prefer to refer to them as, for example, Kulbail Donaldson, where Kulbail is the Karlamaya word for “deceased”.

Biographical background

175    Brian Champion Snr was born in 1937 at Kwolyn, a town in the Wheatbelt Region of Western Australia approximately 100 kilometres west of the western boundary of the trial area. His father was Edward (Ted) Champion, and his mother was Elsie Champion (née Nelson). At the time of Brian’s birth, his father was working as a farm labourer in Kwolyn.

176    Brian is the seventh of nine children. The others (who are all deceased) were: Linda, Kathleen, Neil, David (Dave), Malcolm (known by his second name, Ben), Gertrude (Gertie), Tim and Greta.

177    Brian’s mother was a Noongar woman.

178    Brian said that his father, Ted Champion, was a Kapurn law man. According to Brian’s cousin Betty Champion (a daughter of Brian’s Uncle Jack Champion), Ted Champion was born at Hines Flat, north of Mount Burges. Brian explained that a “law man is someone who’s been through the law and been initiated” and that they “have knowledge of the land, sites, stories”. Brian described his father in the following terms:

My dad was a very independent person who kept to himself. He was also very important in the eyes of people who talked to him, who came to him. He was important because he was a senior law man. He had a hole through his nose from having a bone through. As a law man my dad was involved in law ceremonies. I didn’t go to these ceremonies, and my dad didn’t speak to me about law business.

179    Brian’s paternal grandfather was an Aboriginal man named Jim Champion from Shark Bay, and his paternal grandmother was Nellie Champion.

180    Brian said that, when he was very young, the family lived in bush camps on the outskirts of the towns of Kwolyn and Babakin. When Brian was six or seven years old, the family left Kwolyn and went to Southern Cross “because the old Kapurn people were living there”. They lived at the old reserve and Brian’s father worked on farms in the area. The family also went to Merredin, Southern Cross, Bullfinch and Golden Valley, north-west of Bullfinch. Other than Merredin, those places are in the western half of the trial area.

181    Brian Champion Snr gave evidence at the location of the Aboriginal reserve on the outskirts of Southern Cross. He spoke of the people living at the reserve when his family lived there, including William Sambo, Don Roundhead and Frank Roundhead. He said that 10 to 20 families were living at the reserve. He described the period as “pretty hard times” and “we had hardly any money for food”. Brian said that some of the men worked at the slaughter yard which was down the road and, after animals were slaughtered, members of the family would go down to collect the offal and other parts of the animals that would be thrown away. Brian said that a lot of it was “still good to eat”. Brian gave evidence that he remembered a corroboree when he was a small boy at the reserve at Southern Cross. He described how, as a small boy, he was with the women and he had a rug over him, from which he looked out.

182    When Brian was about six years old, the family went to Kalgoorlie to live for a period of six to eight months as his father had a permit to work in downtown Kalgoorlie, and he also had a permit which allowed him to work for a business in Boulder that had to do with horses and stock-feed. The family lived in a camp near the abattoir where other Aboriginal people lived but their freedom of movement was restricted. A curfew meant they were not allowed in a six-mile radius from the post office after sundown. Brian observed that “[w]e were not free people”. He recalled one occasion when his mother took the children to Boulder to see a picture show but “there was no room for us. We were not allowed in. As a child we were not allowed in to see a picture show”.

183    When he was about 9 or 10 years old, Brian was taken away to the Church of Christ Aboriginal Mission near Norseman, together with his brother Ben and his sister Gertie. Brian said:

We were put on an open train truck and carted out. I look at it as going on my last ride. I did not want to go but I had no choice. My mother and father had no choice. The government, church and police and native affairs were in charge of your life. I was at the mission for 5 or 6 years.

184    Brian explained how he left the mission when he was about 14 years old. He said that a couple of teachers were going to Perth and one of the missionaries asked one of them to take Brian to Merredin for two weeks. He said:

At Merredin I was frightened and confused. I saw some natives come out of the picture theatre who were from Norseman and I asked them where my parents were. They said at the reserve at Merredin.

185    Brian went to the reserve and was reunited with his parents, aunts and uncles. However, he said that he could not remain there as “the police and the welfare would pick me up”. So his parents took him by horse to Burracoppin where his father’s cousin, Charlie Paddy (whom Brian called Uncle Noodi), lived in a bush camp with his partner Frances Nimmo. Uncle Noodi and Frances did not have any children. Brian worked with Uncle Noodi for seven or eight months picking up the wool from dead sheep from farms in the area and selling it to Alf Sir, a shopkeeper in Mukinbudin. Brian travelled with Uncle Noodi from place to place by horse and cart, camping in the bush in the western part of the trial area. Uncle Noodi then took Brian to Mukinbudin to get a job. Brian worked with an Aboriginal man named Billy Hedland, who was a contract shearer. Brian stayed with Billy Hedland and Billy’s partner, Evelyn Jones, at Lake Brown, seven miles east of Mukinbudin.

186    Brian gave evidence at Uncle Noodi’s gravesite in the Mukinbudin Cemetery. Brian said that he visits the gravesite whenever he is in Mukinbudin, to pay his respects and say hello to Uncle Noodi “because that’s what he did for me”:

[Uncle Noodi] gave me a lot of respect and he was the one who actually really looked after me when I was lost – came out of the mission, and my father and mother, they couldn’t hide me anymore.

187    Brian encourages his children and grandchildren to visit the site, and has photos of them at Uncle Noodi’s grave.

188    After working with Billy Hedland, Brian’s mother brought him back to Kwolyn where his father was working. The family then moved to Merredin and then on to Southern Cross. In Southern Cross, Brian started working with his brother Neil at a shearing shed. Brian said that he worked with his brothers on farms wherever they could get work.

189    When he was about 17 years old, Brian got a job on the railway at Coolgardie. While he was still in Coolgardie, his family came to live in Coolgardie. After Coolgardie, Brian started shearing with his brothers at Salmon Gums doing seasonal work. While he was working at Salmon Gums, his parents and siblings left Coolgardie and went to live in Kalgoorlie.

190    After a few years shearing, Brian moved to Kalgoorlie and worked in the mines. At that time, he lived with his sister Kathleen.

191    In January 1966, when Brian was 28, he married Mavis Wilson, who was Ngadju and Kapurn:

Mavis and I were married in the proper Kapurn way. By “the proper way”, I mean that you couldn’t just grab a girl and elope with her; you had to let your parents know, and then the old men could discuss the matter, and make sure that you weren’t too closely related. That’s what Mavis and I did.

192    Mavis’s father was George Wilson and her mother was Tootsie Dimer. Brian said that George Wilson was Kapurn and Tootsie Dimer was Marlpa (Ngadju). George Wilson was born in Southern Cross.

193    After they got married, Brian and Mavis first lived in Davyhurst (where Brian worked with his father-in-law, who had a contract selling sandalwood to the Forestry Department), then moved down to Esperance (where Brian worked as a shearer) and then moved to Coolgardie in 1967 or 1968 (where Brian got a job working on the water supply scheme). In late 1974 or early 1975, Brian and Mavis moved to Higginsville (between Widgiemooltha and Norseman), where Brian worked at the pumping station for six years. In 1980, they moved to Widgiemooltha.

194    Brian has six children: Mark, Lionel, Tania, Darren (now deceased), Robin and Brian Jnr. He has about 30 great-grandchildren and his grandchildren and great-grandchildren are Kapurn or Karlamaya.

195    Since 1980 or 1981, Brian has lived in Kalgoorlie.

196    Brian’s knowledge of the cultural matters about which he gave evidence is based on what he was taught by Kapurn men, being his father, Ted Champion, his uncle, Jack Champion, and by Charlie Paddy (Uncle Noodi), Phil Donaldson, Henry Donaldson and Clem Donaldson, and by his older brothers Dave and Neil Champion.

197    Brian said that his father and his Uncle Jack “and the others” would “tell me the places I could and couldn’t go”.

198    Brian said that, during the time that he lived with Uncle Noodi and they travelled and camped in the bush in the western part of the trial area, Uncle Noodi told him about important places, and how to hunt for kangaroos. Uncle Noodi taught him that this was his bunna (country):

You don’t go over this boundary. You don’t go too far west, you don’t go too far north. For example, you never go to Nungarin. You only went there if you had to go. There were a lot of places you weren’t allowed to go.

199    Brian said that he makes every effort to pass his knowledge on to others. Brian works to maintain the Karlamaya language, which is the language for the trial area. He is a director of the Goldfields Aboriginal Language Centre, based in Kalgoorlie and deposed:

I am continually working to preserve my language, the Kalamaia language. I want a dictionary for us all. Language is the most powerful thing in all.

200    Brian Champion Snr gave evidence of learning words in the Karlamaya language from his cousin Clem Donaldson:

… I got a little dictating machine from lawyers that we used and I went there with my old cousin Clem Donaldson, and we used to go out bush and one of the things I used to do, take a little table along and the dictating machine. Then I ask him, if there was a bird singing out I’d ask him what was the name of the bird, what was the tree, what size was it, what are the hills, what was the rocks and what was the stories with it and that’s how I was collecting it. But I had to write things down myself. … By the way I ended up going to the National Library in Canberra and … I seen Daisy Bates’ stuff and I was looking at it and as I was turning the pages the words was coming back to me, it was the same words that I had done … one of the pages I turned over and right on the top was a word written down … djuromon small bush. I was overjoyed.

201    Brian said that he goes to the schools in Mukinbudin and Southern Cross and has been working with the language centre to make brochures with the Karlamaya language on it. He deposed that he loves doing the Welcome to Country and storytelling in schools:

I tell the children that when you go to the rocks and there’s water there after the rain, you don’t just run and sit down and drink some water; you have a look at the water in the rocks, and if there are any bugs floating around sitting on the top, don’t drink it! If the bugs are swimming around in the water, you can drink it, because it is living water.

202    He also teaches his grandchildren language, and takes pride in hearing them use words and phrases he has taught them.

Kapurn laws and customs

203    Brian Champion Snr gave evidence that a person can only obtain rights to Kapurn country through their bloodline or by being adopted. He stated his belief that:

Noongars don’t have rights in our country just because they’re born here. Wongi people don’t have rights in our country just because they’re born in Kalgoorlie.

204    He also explained that rights in Kapurn country are not obtained through marriage. However, a person can get rights in Kapurn country by being adopted. Brian said that Dick Donaldson was born a Ngadju man, but was adopted as Kapurn after he married King Billy’s daughter, Alice Minjin. Brian said that Dick Donaldson “went through the Kapurn law” and became an important law man for the Coolgardie area. Dick Donaldson had three sons, Phil, Henry and Clem. Phil Donaldson was a teacher for Brian Champion Snr. They mainly spoke at the end of Phil’s life, when Phil was in hospital in Kalgoorlie.

205    Similarly, Brian Champion Snr’s sister, Diane Tucker, was adopted by his parents and is acknowledged as a member of the family, with rights to “hunt and gather and camp and things like that in Kapurn country”. Brian gave the further example of his brother, Dave, and Dave’s wife Miriam, who adopted a young woman. When a member of the Marlinyu Ghoorlie claim group said that the young woman should not be allowed to join a meeting of the claim group as an adopted child, Brian’s children insisted that she should be allowed in because she was “reared up by Kapurn people”.

206    Brian Champion Snr said that Dick Donaldson’s son, Phil Donaldson, and Willie Sambo went through the law (by which he meant male initiation ceremonies). Phil and Clem Donaldson told Brian that Phil and Willie Sambo were the last Kapurn men to be initiated. Brian said that people cannot go through Kapurn law anymore because “my dad and others ended it a long time ago”. He explained:

If a Kapurn person goes through law in someone else’s country like in Wongi country or in South Australia it doesn’t hold water in our land because it’s not the law of our land. It may give you rights over in the other country, but not in ours.

207    Brian Champion Snr gave two reasons for the cessation of “law business” in Kapurn country:

Number one was the influx of all the white people taking all the land and yarding all the blacks out. Blacks were just blacks as far as they were concerned. Blacks were not a law enforcement agency. The other reason they decided to stop the men’s law is because they said it was too cruel, they wanted it to end. Certain young blokes were being circumcised and then they had to be rushed to hospital.

208    In the (gender-restricted) video recording titled Kangubulinya (Uncle and Nephew), Brian identified a secret location in the vicinity of Coolgardie / Kalgoorlie / Boulder which was associated with male initiation and which was part of a Dreaming track which extended into the country of other Aboriginal people. In the (gender-restricted) video recording titled Yintirri, Brian provided information concerning a “male” site near Coolgardie and the ceremonies which occurred at that site. Brian was shown the site by Clem Donaldson.

209    Brian gave evidence about the ancestral spirits that were present on country. When speaking of ancestral spirits, Brian used a Karlamaya word, but the spelling of the Karlamaya word in Brian’s written evidence and in the transcript (as corrected) had variations. The alternative spellings were ‘gurum’, ‘kuran’ and ‘kuranpa’.

210    When he goes to a site on country, Brian Champion Snr told the Court that he has to speak to the ancestral spirits and tell them who he is:

I’m talking about the kuran – kuran of the old people and the spirits of the old people, ancestors, my ancestors, and then I speak to them in language that they’ll understand, and then I can have a good sleep, feel secure – release, lovely, goongoongarri .

211    Brian Champion Snr told the Court that he has taught these protocols to his children.

212    When giving evidence at Lake Deborah, Brian Champion Snr welcomed the Court to country in the Karlamaya language and explained:

… I said that we’re talking to our spirits, our spirits here, the kuranpa they all here. They’re all listening now to us. They’re here. And I know that they’re happy for us to be here, but I have to speak in language that they understand because that’s their language, as well as mine. And I know when I speak in the language to them, they will understand and look after us.

213    Brian recounted an occasion when he, his brother Malcolm and one or two other young men were pegging blocks to prospect for nickel in the vicinity of Coolgardie. His father and uncles Jack Champion and Dick Donaldson “roused” on him for not having spoken to them first. They told him:

You’re supposed to tell us before you do that, because the old people from the lands sent word and asked what our young men are doing there without telling them.

214    Brian said that if a young person wants to go hunting in the Southern Cross area, they should also speak to their elders and “know their land” so as to avoid certain sites; if not, they could “die or get sick”.

215    Brian Champion Snr gave evidence that, when he was young and wanted to go hunting, an older person with experience, knowledge and know-how of places would tell him where he could and could not go and where he could or could not prospect:

They said that if you ignored them and went to the places you weren’t allowed, bad things would happen. They said you could get sick. If you persevered and wouldn’t listen to them you could die. They had a word for those places (the death word) that I don’t want to use. I’ve seen people get sick and die for going to places they shouldn’t go. One had a massive heart attack and died. Another person got cancer and died. It happens all the time. I’m very cautious about it and tell all my young people not to go to places you shouldn’t go or something will happen to you and you could get sick or worse, you could die. I tell them.

216    Brian Champion Snr said that there is a Karlamaya word, gunjingbarr, which refers to someone who “foolishly thinks they can sneak around in someone else’s country without any consequences”:

If you don’t come from the place or you don’t know the area, you shouldn’t do it. When I go out, I talk to the land. I’ve got to. You have to speak to the ancestors, as well as avoiding the wrong places. I say to the young people “You’ve got to know the land”, because the gurum, the spirits of our ancestors, are all here. If you want to go out anywhere you need to talk to them in their language – Kalamaia – so that they’ll understand you, that you are their people. That’s when you have your sleep, your rest.

217    Brian gave an example of an elderly Noongar couple from Perth who “snuck out to Coolgardie without asking permission, and chopped a few trees down to make didgeridoos with”. When they went to leave, “they couldn’t get their car to start, no matter what they did. But after they waited for a while, the car started up again as if there had never been a problem”.

218    Brian continues to adhere to cultural protocols on who can speak for country and said that bad consequences will ensue for those who ignore them:

One time some years ago two Wongi women from out east said at a meeting I was at that the karlkurla rockhole was “wati yinnaga”, meaning it was a Wongi site. The Wongi chairperson of the meeting, a bloke I knew, said to them that they shouldn’t speak about it because we, referring to himself and the women, could be in very serious trouble just talking about it. One of those women suffered a very bad death.

That same afternoon of the meeting, I met with two Wongi law men at my son Brian Jnr’s house. I said to one of them that I believed the two women were talking for the law men. He said that I should have told him, because he would have walked into the meeting and hit them on the head. The law man didn’t have to say whose site the rockhole was because he didn’t have to. He knew it wasn’t his, and he knew it wasn’t theirs.

219    Brian recounted an occasion when “two lawmen from Warburton” requested he and his brother Tim to accompany them to the Karlkurla rock hole because “only the traditional owners can go to that place”.

220    Brian Champion Snr described how happy he feels when people ask permission before they go on country:

… because I believe it’s the only way, the right way to do it. If you believe in your land and you want it to be looked after you have to talk to the gurum. And they also will talk to you.

221    Brian deposed that Noongar people were afraid of the senior men in his father’s generation, because they believed they had powers that could be used to harm them. They would not camp at the reserve unless they knew a Kapurn person there who could protect them.

222    Brian understands that similar protocols mean that Kapurn people should not enter Wongai or Noongar land without permission from their traditional owners. He said that he “would be very careful about going to Merredin without first notifying people in the town”. If he wanted to attend a funeral, for example, he would try to speak with a senior Noongar elder to see what his reaction was: “You don’t just show up at the funeral. The same rule applies for anything special you want to do in the country”. Similarly, if Brian is planning to visit or do things in particular places in Ngadju country, he said that “I like to see them about it first, and make sure it’s okay”.

223    Brian said that the old people told him about moieties or skin groupings: Jooamat (rainbow bee-eater bird); and Beeroongamat (kingfisher). Brian learned that “you don’t kill the bee-eaters. You have to look after them wherever they are and make note of where they are too. They’re looking after you too” and that “the Kurrajong tree is a significant totem plant for the Kapurn people, which is why I have a responsibility to look after it”. Brian said that his own totems are the beeroongamat (kingfisher) and ngarrka (kurrajong tree).

224    Brian’s father told him about the trade of spears from Norseman. Kapurn people would take the spears to Paynes Find, north of the trial area, to trade with the Badimia people. Brian said that trade between groups continues today, as well as trade to “white blokes who sell [artifacts] overseas”:

If a person from Tjuntjuntjara wanted to come to Kapurn country to chop down a tree to make a spear, I could give them permission to do that, provided they do it in the right way. If that person offered me ochre in exchange for wood, that would be allowed under our law, provided they obtained the ochre legally in accordance with their law. You have to be careful that you’re not accepting contraband. If you did that, you’d be in trouble under their law.

225    Brian said that marriage laws still prevail under Kapurn law:

My grandchildren and great-grandchildren know that they have to ask questions so as to avoid marrying too close. A few years ago, I had one of my great-grandsons come to me about a girl at school, and I had to tell him that he couldn’t go out with her because they were too closely related. (As far as I can recall, they would have been second-cousins according to European kinship classifications.)

Claim group identifying names and members

226    Brian Champion Snr prefers to be described as Kapurn, although he is also happy to be described as Karlamaya or Kalarku. Kapurn means ‘man’ in the Karlamaya language. He previously used the term Karlamaya, but he subsequently learned that his father used the term Kapurn, which “cemented it” for him.

227    Brian also explained the adoption of the names ‘Marlinyu Ghoorlie’ for the native title claim group. He explained that the use of those names avoided “a tiff” (disagreement) particularly around the use of the word Kalarku “which some people think could bring Ngadju people in”. Brian gave evidence that marlinyu and ghoorlie are the names of two trees that grow on Kapurn country. A marlinyu is a salmon gum tree and a ghoorlie is a sheoak tree. The marlinyu tree is important because it is “a big strong tree and it’s a water tree” which can trap water near its base. Brian also explained that ghoorlie trees are important because there is a stand of them on the eastern side of Mount Burges where there is a karlkurla (silky pear) orchard. The karlkurla vines grow up the ghoorlie trees. They often grow together. Brian identified that place at Mount Burges as part of a Dreaming story.

228    With respect to the members of the claim group, Brian Champion Snr said that whilst Henry (Ricky) and Maxine Dimer and Betty Logan refer to themselves as Karlaku, they are members of the Dimer / Donaldson family and they belong in the claim group. The Wilson family belong to the claim group as well. George Wilson was adopted into Kapurn by Johnny Wilson, who “reared him up” and took him to Balladonia. Johnny Wilson was a son of King Billy. Although Brian Champion Snr deposed that personally he had not “heard much about Lucy Sambo”, he accepted that others say that “Lucy belongs to Kapurn”.

Kapurn country

229    Brian Champion Snr said that the eastern boundary of Kapurn country is 30 kilometres to the east of Kalgoorlie. He said that this boundary was identified and agreed to by the old people, including Phil Donaldson, Tjuntjuntjara / Cundeelee man Don Sinclair and others, when the first Kapurn claim was lodged:

I know an agreement was reached because it was brought back to us. That’s how we drew the map with the claim boundaries. You couldn’t draw the map unless you had an agreement.

230    In drawing the map of the trial area for the current claim, Brian said that the representative applicants referred back to this earlier agreement as the eastern boundary of Kapurn country has not shifted since that time.

231    Brian identified the western boundary of the trial area as being near Burracoppin, a line described by the anthropologist Norman Tindale as the “circumcision line”. As discussed later in these reasons, the “circumcision line” refers to a geographical and cultural demarcation between Noongar people, who never practised male circumcision, and other Aboriginal people, including Kapurn and Western Desert Aboriginal people, who did practice male circumcision as an initiation ritual practice.

Knowledge of country and significant sites

232    Brian Champion Snr gave written and oral evidence about the plants, animals and seasons of the trial area and many sites within the trial area that are significant to Kapurn people.

233    Brian said that his father told him about Lake Moore, in the north-western part of the trial area. He said that on the southern side there was quicksand, and on the other side was a soak. He said you have to be careful of that place, because if you went too far into that country, you’d get caught by the quicksand. The biggest volume of water is the northern part of the lake. Brian’s father also told him about a quartz outcrop in the lake that looks like a snake: “It’s sacred and you have to be careful. That’s why I haven’t been there”.

234    Brian said that his father told him about Wialki on the Bonnie Rock line, going up towards Beacon. He said it used to be a corroboree place and he and the old people used to live there.

235    Brian said that there is a significant site at Mount Charlotte lookout, being the home of the mallee fowl (nunamulla) and a place of the Mallee Fowl Dreaming. In a video interview recorded on 9 December 2022, Brian provided more information about the mallee fowl birthplace. Brian said that the Karlamaya word for ‘Dreaming’ is thoorgal (although on other occasions in the transcript of evidence, the word for Dreaming was written as doolgoo, possibly in error).

236    Brian Champion Snr also gave evidence that the Wajine rock hole is a significant site known as ngoorie thoorgal and it comprises: four quartz rocks in a row; kagee dullbarl (spear) trees; numerous rock holes; a pond; and “breakaway” country being a rock formation from which the water f1ows into the adjacent freshwater lake. Brian said that he was taught about that site by Clem Donaldson and he gave the following evidence about the site:

The site relates to situations where a member of the Kalamaia Kalarku Kapurn people who is naturally timid needs to gear themselves up for a fight. If a man is afraid to fight, or doesn’t know how to fight, the old people will direct him to go to that area, make a kagee dullbarl (spear) from one of the kagee dullbarl trees … and they go to the four rocks … which represent four Ngungin ylwardaraa (mopokes/nightbirds) sitting in a row. The man throws the spear at those rocks, and that gives him the power, aggression and fortitude (butha) to fight.

237    Brian Champion Snr learned about the bilarl (blue jay or rain bird) from the old people:

When you’re in the bush and you hear him singing out it means there’s a big rain coming and you have to get back to your wammool (camp) and fix it up. You had to look after the bilarl.

One day I heard the bird singing out and I didn’t believe him. There wasn’t a cloud in the sky. In the afternoon there were black clouds and thunder and lightning and it was pouring down with rain. I knew then that this guy was real; he knew what he was talking about. You have to do what he tells you.

238    Brian gave evidence that, in the Karlamaya language, the word for ‘snake’ is bimara and that bimara has a lot to do with water. Brian gave evidence of damage that was done to a soak called Dargadarldanjie (near Kambalda) when the railway was put through it. As a consequence, the bimara is gone from the soak. However, Brian said that there are other places where the bimara is present all the time:

But yes – but we got other places where the Bimara’s pretty – pretty – he’s there all the time, and that’s our waterhole and our places, our kapi thanana, kapi martamugulinj.

239    Brian gave the following evidence about traditional knowledge of seasons, and animal behaviours associated with them:

The Kalamaia word Jurdtmull refers to the time of year when the seasons are changing from winter to spring, when the goannas are coming out of hibernation, the emu eggs are laid, and the mallee fowl have made their nests and other birds become plentiful. The Kalamaia word koomkoombee refers to the change in seasons from autumn to winter, when you will see a smokey haze like after a bush fire. That is the time to stop hunting and eating the hill kangaroo (pigoodoo), and start hunting and eating the grey kangaroo (kulbit). You will see a smokey haze again when the seasons are changing from spring to summer, and then you change back to hunting and eating the pigoodoo again. The purpose of this rotation is to give both types of kangaroo time to breed, and replenish their numbers.

240    When giving evidence at Lake Deborah, Brian repeated that evidence about the change in the seasons, although the Karlamaya word for the change was written in the transcript as kurnkurnpy (rather than koomkoombee). Brian also referred to other signs of the changing seasons including a small bush named tjudumul. When this bush has finished flowering, the goannas (kalka) come out of hibernation.

241    At Lake Deborah, Brian indicated a big corroboree ground and said that Uncle Noodi, his father and the old people at Southern Cross had told him that Kapurn people held corroborees there.

242    Also when giving evidence at Lake Deborah, Brian looked to the south and identified a big hill as Martarnuglinj, where on sunny afternoons light green leaves of the kurrajong (ngarrka) trees are visible. He explained that the Ngarrka Dreaming track (written as Doolgoo), starts from that place:

Doolgoo is like your Britannia, you know, when you sing … the ngarrka doolgoo, that means the history of the kurrajong tree, right, to everyone. Dreaming, that’s my dreaming track … You look at that and when you go up there, you’ll see it. That’s not just all bunna, there’s a lot of boorie there, stones, a lot of rocks there on that hill … that’s the ngarrka, see, that’s our totem and … we don’t want that, kuthu warninya. We don’t want a dam, mine, we don’t want to destroy it. We want it like this here. We want it left alone. Kuthu warninya means exactly that, stop, don’t touch, leave it alone.

243    He identified the ngarrka as a totem, as special for his people:

… when you’re down and out and it’s – that tree there, that one there. It’s got – like because you got the seeds, you know, there and you can - eating that whatever it is but it’s got the roots too as well, got the water but also it’s the beautiful shade, the best shade out that one.

244    Brian also identified the marlinyu (salmon gum) which grows throughout his bunna (country). He said that other animals which can be hunted in the area (near Lake Deborah) include the marlu (red kangaroo), kulbit (grey kangaroo), pigoodoo (hill kangaroo), jilkamarta (porcupine) and parruta (wild turkey).

245    When giving evidence at Culculling, Brian Champion Snr gave evidence that Culculling was a camping place with a rock hole for water. Brian used the expression kapi kapi tjukular, which he explained means ‘good water’ in the Karlamaya language. Brian said that he came to Culculling with Uncle Noodi, and other people were camping there. His Uncle Noodi told him that it was Kapurn country. Brian found out later that, while he was away at the mission, his brother Tim and sister Greta lived at Culculling and caught the bus from there to attend school in Mukinbudin.

246    At a cave near Beringbooding Rock, Brian went to the front of the cave “to speak to the kuranpa, the spirits of our ancestors”. He said that:

Well, they all know now, the old people, kuranpa. They’re all around, you see, the spirits of the old people, and I had to tell them that, you know, we are here, but we’re not here to – to destroy the place; we’re here to look after the place.

247    Evidence was then taken inside the cave. On the wall of the cave was rock art. Brian explained the significance of the artwork:

… if you look here, this is all about the milky way, the tjula there, see. This is – have you ever seen a small emu when they’re born or being hatched, they’re not black all over or grey all over; they got stripes all over them and that’s them there.

248    Brian pointed out emu footprints and an old emu which he described as being part of the story:

That’s the milky way. That’s him up there. That’s the tjula, that’s the milky way, and then – and he is kuru when he’s closed and open – right open now but when it close up, that’s when it’s the end of the world so he’s watching us down. He’s looking at us. And this one here comes right through on Coolgardie. I know. I know. I seen the one there at Coolgardie – same, the right stripes on it.

249    In response to a question, Brian explained that he was referring to another rock painting in Coolgardie which was part of the same story.

250    Brian identified a red line running through the painting as the Dreaming track and a marra (handprint):

… ancestors always put their handprint. This is not the only one. I’ve seen other ones we got … in our land and the marra there is all – all those marra, the hands there. That’s to actually let people know that’s ours, you see, and that’s what they had to do.

251    Brian said that he was first told about the cave by Uncle Noodi, but Uncle Noodi did not bring him to the cave. Brian said that he had visited the site only in the last 10 to 20 years because it is a sacred site. Brian explained that the cave was on private property, which made it difficult to protect the site. He gave evidence about speaking to the local farmers and the Shire of Mukinbudin to find out who had control over the site:

I thought it was the farmers in the first place because of the fence, and I asked the farmers and they said, “No, it’s not ours”. So I’m going around like a dog chasing his tail, see, and I’m not getting the answers and just to save – just to save our treasure – our treasure. This is a crown, jewel in the crown you know when you see it.

252    Brian said that Uncle Noodi had told him about the emu story in the sky:

And he’s there, he’s looking down, he’s watching you, right and you’ve got to be careful when you look around at night, you go and see him, you got to keep looking at him right, but he also said … that eye, when he close shut, that will be the end of the world, but the thing is, old Noodi always told me, always told me, the real things what to do, you know, you actually go to sleep, actually get away, go back to sleep – kunkun ngari, you know and don’t worry about it. It’s still there and tomorrow night he’ll be there again too, but he’s still watching you, you know, that tjula there.

253    Outside of the cave, there was graffiti on a large boulder. Brian said that when he saw the graffiti close to the rock art site, he felt:

Very very bad, very sad, very angry because they’re so close … This is – this is world renown. This is not just anybody’s grip on things. These things are there – been there for hundreds and thousands of years, you know.

254    He explained that both he and his old people had felt constrained in sharing cultural knowledge about the site out of fear that “someone will come along and destroy it”. He told the Court that he goes past the site “slowly to look to see if it’s still there and not been destroyed” and that this is one of “very many many many many ones” which are “so beautiful” and which he feels deeply responsible for saving and keeping, “not only for me and my generation, my people, but for all the world to see”.

255    Brian Champion Snr told the Court that Uncle Noodi had told him that there were other rock art sites at Kalyanbudding, Yanneymooning and De-Eranning Hill. He has never been in to look at the art, because he is too old, but his younger generation have visited De-Eranning Hill.

Karratjibbin forebears

256    In relation to the Karratjibbin claim, Brian Champion Snr said that he has never heard of the claimed Karratjibbin apical ancestors Polly, Eva, Billy Yambinut or Toby Williams. He said that he did not personally know Toby Williams’s sons, Nimmo and his brothers Teddy and Pompey Williams, but was told about them by his mother, Elsie Nelson, who was a Noongar woman. Elsie told Brian that the Williams brothers were a Noongar family whose traditional country included Mount Sterling, Kellerberrin and Yoting, but not any part of the trial area. Brian gave evidence that he was told by his late brother, Tim Champion, that Percy Carney was a Badimia man from Paynes Find (which is to the west of the trial area).

Wongatha people

257    In his evidence, Brian Champion Snr expressed his opinion that, although some Wongai or Wongatha people live in Kalgoorlie, their traditional country is to the north-east of the trial area. Brian acknowledges that sites in Kapurn country may feature in the Dreaming stories of other Aboriginal nations, but expressed his belief that this does not create rights to country. He gave the following evidence:

If there is a men’s site in the Kalgoorlie area that’s talked about in a Wongi dreaming, they should still ask for permission from a Kapurn person before they go hunting or things like that. That’s showing respect for the country. You’ve got to do that out there on their country, why not on ours as well?

You’re not supposed to go to a men’s site in Kapurn country unless you have a traditional owner with you. That’s the law. One example of that is the Karlkurla rockhole in Kalgoorlie. It makes no difference to me that the Wongi people might say that a place is a dreaming site under their Wongi law. Their law is different. They have to convince their mob back in the desert. I’m saying this is my land, my bunna, my site.

Henry Richard (Ricky) Dimer

258    Henry Richard Dimer provided a statement of evidence dated 4 August 2023 and a further statement dated 4 September 2023. Both statements were tendered in evidence in amended form on 2 October 2023. Henry Dimer gave evidence at the Kalgoorlie Town Hall on 2 October and 3 October 2023. He also gave evidence at Mount Burges Station and, together with his sister Maxine Dimer, at the Kulkurdi rock hole near Warden Finnerty’s House in Coolgardie on 13 October 2023. Henry Dimer was referred to as “Ricky” (an abbreviation of his middle name) by both his sister Maxine (who also gave evidence) and his counsel. In these reasons, I will also use the name Ricky.

259    Ricky Dimer’s residential address is in Coolgardie.

260    I found Ricky Dimer to be an honest and careful witness, who answered the questions put to him in a direct and open manner. I accept his evidence.

Biographical background

261    Ricky Dimer was born in Coolgardie in 1952, and currently resides there. Ricky stated that he is Karlamaya Karlaku through his mother, Dorothy Dimer (née Donaldson), and Ngadju through his father, Ollan Dimer.

262    Ricky’s mother, Dorothy Dimer, was born in 1929 and, accordingly, at the time of trial was an elderly woman. She died after the conclusion of the trial on 1 June 2024. Dorothy was the daughter of Dick Donaldson and Alice Minjin. Dorothy Dimer had four siblings: Phil, Clem (“Kingy”), Henry and Bob Donaldson. All are deceased. Ricky Dimer said that he is an elder of Kalgoorlie through his maternal grandparents, Dick Donaldson and Alice Minjin. Ricky said that his mother, Dorothy, used to describe herself as a Karlamaya Kapurn person but, when native title claims started, she started to use the term Maduwongga. Ricky stated his belief that, when Dorothy used the word Maduwongga, she was referring to Mount Burges. As discussed later in these reasons, Maduwongga is a tribal name given by Norman Tindale to certain people he interviewed in and around the trial area in 1939. For the reasons explained below, I have concluded that the Aboriginal people who possessed rights and interests in the trial area before European settlement were not Maduwongga people. On the basis of Ricky Dimer’s evidence (and the same evidence given by Ricky’s sister Maxine below), and the ethno-historical evidence discussed below, I infer that Dorothy Dimer adopted the Maduwongga name from the Tindale records and that it was not a name passed down to her from her parents or other forebears.

263    Ricky Dimer was not cross-examined about the beliefs of his mother with respect to the Marlinyu Ghoorlie claim, but his sister Maxine Dimer was cross-examined about those matters. Maxine’s evidence, and my findings on that topic, are discussed below.

264    Ricky Dimer’s Aboriginal name is Kyuntjilli. He was named after his mother’s uncle, Jimmy Kyuntjilli, because there is a special relationship between uncles and nephews, and also, when he was a boy, Ricky exhibited traits similar to those of Jimmy Kyuntjilli.

265    Ricky has 11 siblings: Betty, Norma, Maxine, Alison (“Bubsy”), Eva (deceased), Wyvern, Warren, Ollan Samuel (“Samuel”), Christopher, Kay and Anita (“Annie”).

266    When Ricky was young, his family lived on Credo Station (which is within the trial area, to the north of Mount Burges). He attended school through correspondence with the “School of the Air”. When Ricky was a little older, his parents moved into Coolgardie, where he attended school. In Coolgardie, Ricky’s family lived in what was called a ‘reserve’, which was located 1.5 kilometres north of the Coolgardie town centre. Ricky explained that the reserve had showers and running water coming off the Coolgardie pipeline, and it was known as the Coolgardie Pipeline Reserve.

267    After leaving high school in the late 1960s, Ricky worked in various jobs in and around the trial area, including at Mount Burges Station, Norseman and Coolgardie. He also spent periods of time in Ceduna, South Australia and Macarthur River, Northern Territory. Since the early 1990s, Ricky has lived in Coolgardie. From 2007-2021, he worked at the Bega Health Centre in Kalgoorlie, commuting from Coolgardie to Kalgoorlie each day.

268    Ricky Dimer believes that he is a descendant of Kaddee and Warada, who are apical ancestors for the Marlinyu Ghoorlie claim group. As stated above, Ricky’s maternal grandmother was Alice Minjin. Ricky stated that Alice Minjin’s biological father was a white man, but her adoptive father was King Billy whose parents were Kaddee and Warada. King Billy’s Aboriginal name was Nyuumani. Ricky said that, when he was growing up, his mother, Dorothy Dimer, used to speak about King Billy often. She told him that King Billy’s cultural group was Karlaku / Karlamaya. His mother also told him that Alice Minjin and her mother both spoke the Karlamaya language. Ricky Dimer explained that even though Alice Minjin’s biological father was a white man, she was still accepted as King Billy’s daughter.

269    Ricky Dimer said that his maternal grandfather was Dick Donaldson, a Karlaku elder whose language was Ngadju / Karlamaya. Grandfather Dick’s mother came from Fraser Range, approximately 100 kilometres east of Norseman, which is outside the trial area. Ricky believes that that area was Dick Donaldson’s “rightful country”. However, after Dick Donaldson married Alice Minjin, King Billy bestowed custodianship rights of the Coolgardie and Kalgoorlie area onto Dick Donaldson because King Billy’s sons were unable to take on the custodianship. This meant he was responsible for looking after all the sites from Coolgardie through to Kalgoorlie and down to Norseman and Fraser Range. Ricky said that Dick Donaldson went through Karlaku / Ngadju law and held the same rights as other Karlamaya Karlaku people.

270    Ricky said that Dick Donaldson and Jack Champion (whom Ricky referred to as Uncle Jack Champion) were lawmen for the Coolgardie / Kalgoorlie area. Ricky said that he observed this as he was growing up. They lived in Coolgardie. They went away and to have meetings in the bush together. They connected with the other law people from the east of Kalgoorlie. Ricky said that Jack Champion had good knowledge of the storylines of the area and often assisted Dick Donaldson with his responsibilities. Ricky also said that his grandfather had a very strong “law business relationship” with Ted Champion, whom Ricky prefers to call “T.C.”. Ricky said that, together, they were very powerful senior lawmen.

271    When Ricky was young, he lived next door to his grandfather, Dick Donaldson, in Coolgardie. Ricky remembers that his grandfather would often meet with Aboriginal people who were visiting the area. Dick Donaldson spoke about seven languages and was able to speak to the visitors, with whom Dick exchanged information about what was happening in their respective countries. He was able to tell Aboriginal law people visiting from other areas whether they were permitted to have access to certain sites in the area.

272    Ricky explained that Dick Donaldson was a good “lawman”:

Grandfather was able to speak so many languages because he had gone through the law and he really put his heart and soul into it. He held the law from here [Coolgardie] to Norseman and Frasers Range, and from here to Kalgoorlie. He held it with an iron fist. People came from everywhere to talk to him, including the Nelson brothers (Victor and Andrew) from Merredin who would come up by train and camp at Coolgardie and just sit and talk with Grandfather.

273    Ricky said that Dick Donaldson passed on his knowledge to his sons, Phil (the last initiated descendant of King Billy) and Clem (“Kingy”), and his daughter, Dorothy (Ricky Dimer’s mother).

274    When Ricky was 16 years old, Dick Donaldson came out to mentor and look after him at Mount Burges Station. During this period, Dick Donaldson also taught Ricky about the laws and customs that he was old enough to know about, including matters concerning the importance of Mount Burges. Further evidence on what Dick Donaldson taught Ricky during this period is set out below.

275    Ricky recounted a story, told to him by his father, Ollan Dimer, which exemplified Jack Champion’s authority over country. Ollan Dimer and William Sambo drove out to Mount Gibson in William Sambo’s new vehicle with some other men. The site was a very important men’s initiation site. When Jack Champion found out that Ollan had visited the site, Jack was furious with him for putting the men’s lives in danger, as law business was still active there. Ricky said that Jack Champion was Ollan’s guide in matters of traditional laws and customs and told Ollan which sites he could and could not visit.

276    Jack Champion had an injury to his leg, which meant he could not walk far or travel easily. Ricky Dimer admired Jack Champion because he was a strong old man, both physically and spiritually. When other elders left Coolgardie for work, Jack Champion stayed back in Coolgardie to act as a “gatekeeper”, keeping watch of “tribal matters”. However, Jack still relied on Dick Donaldson to provide information on site access to other visiting law people, because Dick had the custodianship rights.

277    Ricky Dimer explained that the main people who taught him about country and laws and customs were Dick Donaldson and Jack Champion. Because Ricky was the eldest son of his siblings, it was important that the knowledge was passed on to him.

Language

278    Ricky Dimer gave evidence about the Karlamaya language, and his impression of regional differences in the language. Ricky understands there to be the “Coolgardie and Norseman language”, which goes down to Fraser Range. Ricky speaks what he referred to as the “Norseman language”, which is “Ngadju Kalamaia”. He said that he spoke it a little when he was growing up, with his parents and wider family, but he was not able to speak it in whole sentences.

279    Ricky also gave evidence about the ‘aur’ sound in the Karlamaya language, explaining that it was common for Kapurn people to use the ‘aur’ sound in the middle of their place names and gave several examples. Ricky Dimer said that the word for Mount Burges in Karlamaya is Malaurdi and most of the places from Coolgardie up to Mulline have names with the ‘aur’ sound in it, such as Malaurdi, Jaurdi, Mulwaurri, and the name for Coolgardie is Kaulkaurti.

Kapurn country

280    Ricky Dimer explained that the phrase Karlamaya Karlaku refers to different parts of the trial area. He said that west of Coolgardie is a big sandbar that runs from the north to the south, which was very difficult to walk across. His forebears referred to the western side of the sandbar as Karlamaya and the eastern side of the sandbar as Karlaku. To cross the sandbar from Coolgardie to Southern Cross used to be a very dangerous thing to do and it would be safer to go down south or up north to follow a track around the sandbar. Ricky explained that he refers to himself as Karlamaya Karlaku because his maternal grandfather’s (Dick Donaldson’s) country was on the Karlaku side and his maternal grandmother’s (Alice Minjin’s) country was on the Karlamaya side.

281    Ricky said that he has rights in the whole of the trial area. But in his evidence Ricky said that different families have the right to speak for different parts of the trial area. In particular, Ricky has the same rights to speak for country as his grandfather, Dick Donaldson. However, for country west of Coolgardie, Ricky believes that the Champion family has particular rights to speak for the Southern Cross / Mukinbudin area and, therefore, he would need input from people such as the Champion family in order to speak for that area.

282    Ricky stated that, to the east of Kalgoorlie, the boundary of Kapurn country extends to Mount Monger and up to Golden Ridge. Ricky learned about that boundary from his mother and from Willie Trott (his father’s stepfather), who was good friends with Dick Donaldson. Ricky said that Willie took Ricky and his family to Golden Ridge when his father was working out at Mount Monger Station. Ricky said that the old people would not take them somewhere if they knew you did not have anything to do with the country. Ricky said that Willie Trott knew that Ricky’s family was safe in the Mount Monger / Golden Ridge area because that area is part of Ricky’s country.

Kapurn laws and customs

283    Ricky Dimer explained that, for Kapurn people, rights in an area are obtained by having connections with ancestors. Marrying a Kapurn person does not give that person rights unless they are bestowed with custodianship rights (like the custodianship rights that were bestowed on Dick Donaldson). If a man does not have any rights but his wife is connected to the country, then their children will have rights in the area through their mother. You can only become Karlamaya Karlaku by descent (“having the blood”) or by being accepted as adopted in.

284    Ricky said that, when people from other cultures come onto Kapurn country to take care of the Kapurn “sites”, they do not obtain rights in the country. Ricky gave the example of the “Tjuntjuntjara mob” from the Cundeelee Mission who come onto Kapurn country to take care of the sites. If they came down and tried to speak for Kapurn country, they would get into lots of trouble — spiritually and otherwise. Ricky said that people now claim to know and speak for the country who do not know it.

285    Ricky Dimer was told by his grandfather, Dick Donaldson, the Dreaming stories of the area and information about which sites to avoid. Information about important sites was also passed onto him by his father and his maternal uncles, Phil and Kingy (Clem). Ricky’s father, Ollan Dimer, learned about sites from Dick Donaldson and William Sambo, though Ollan was not involved in any law business. Ollan spoke to Ricky about some of the sites but he told Ricky not to get involved with the “law business” because law business was finished in their group. It was clear from his evidence that when Ricky said “law business”, he was referring to traditional initiation practices. The Kapurn people stopped the traditional initiation practices in the early 1930s and 1940s.

286    Ricky Dimer explained that protecting sites is important because they are part of the Dreaming stories. He further noted that it is important to respect the spiritual power of the land and ensure that one has permission to enter particular sites. Failing to follow these rules may result in bad things happening. Ricky provided some examples of important sites and what happens when they are not respected. Ricky referred to a “scary place” north of Coolgardie, west of Carbine Station. Old people used to not let their family go near that area. Dick Donaldson warned Ricky that it was a “breakaway sort of country” and, after dark, there are scary experiences that lure children away. Another example was the southern side of the railway line behind the Coolgardie Hospital, which Dick Donaldson told him to avoid as there are significant men’s and women’s places in that area.

287    Ricky Dimer recounted a story about a young boy who went to a significant place on a motorbike before sundown. Because he did not have permission to enter the site, he got lost overnight. When he came back in the morning, Ricky’s mother said to him he should not have gone that way, as there are bad spirits that will draw you away.

288    Ricky explained that he feels safe when he is out in the bush, even though it feels creepy to other people.

289    When giving evidence at Mount Burges, Ricky Dimer provided a history of the colonisation of the Mount Burges area and creation of the pastoral lease when gold was discovered. He explained that the Karlamaya name for Mount Burges is Malaurdi and that the Karlamaya people were responsible for looking after Malaurdi. Ricky also explained that the area was not only an important place for his people, but also for other Aboriginal people from other areas:

But to the Aboriginal people, in Aboriginal culture, this [Mount Burges] is one of the, one of the main, main places and main places, when I - what I mean by that there, when ATSIC was on and we’d go over, you know, have a meeting over in Cairns or Townsville or somewhere and we’d meet up with, with the whole tribal peoples that came to those ATSIC meetings from Alice Springs or Tennant Creek, Northern Territory and that, South Australia, and when they asked us, asked myself and one of my nieces and one of Brian’s sons and when we, when we said that we come from Coolgardie and they ‘What, you come from Coolgardie’, ‘Yeah’, that is a very important place in our culture and according to them they said this is where the Aboriginal culture started from. And that’s why this place here is very, very important to Aboriginal law and culture.

290    Ricky also noted that people from the east of the trial area, including from Tjuntjuntjara, also recognise the area as having important spiritual significance.

291    Ricky recounted his experiences working at Mount Burges Station as a first job after he left school when he was around 16 years old. He worked at the Station for around two years with Johnny Champion and a few other Aboriginal people from around Karonie and Leonora. His grandfather, Dick Donaldson, spent time with him and Johnny Champion while they were at the Station because he was an elder and a lawman. He wanted to make sure that Johnny and Ricky did not go to any places that they were not supposed to go. Ricky explained that Dick Donaldson never told him the full story about Malaurdi because Ricky had not been through initiation. During this period, Dick Donaldson also taught Ricky important life skills and cultural skills, including how to live off the land. Dick Donaldson taught him how to catch and eat lizards, kangaroos, emus, ducks and turkey. Close to where Ricky was providing his evidence, there were also several waterways that contained several mallee fowl nests. Ricky described in detail how to collect mallee fowl eggs from their nests, which are similar to rabbit burrows in the ground. Dick Donaldson also taught Ricky how to use what he calls the “banyan bush” (maroon bush) for bush medicine.

292    Ricky Dimer explained that there is a rule that food that is caught has to be shared. Elders get taken care of first. Ricky recounted that Johnny Champion and he used to bring back kangaroo and emu meat to his uncle, Jack Champion. In return, Jack Champion would give sheep heads and pig heads to Dick Donaldson, to cook up for them all.

293    While providing evidence at Mount Burges, Ricky told an important Dreaming story about a place called Hines Flat, close to Mount Burges:

Well, there’s a big waterway there in the middle of a big blue bush flat and on the eastern side when you, you know, you’re riding horses, mustering sheep or just driving through, you notice there’s a bush, vegetation on this country like this here come here and then they cut out and then there’s plenty sort of a paddock like this here, goes back again, and then another set of trees come down and grandfather’s story what he told me, he said that’s where - where the two - two lawmen, Kapurn men, they walked along there - and it was all scrubby then - and they threw a boomerang, a large boomerang, one bloke threw it, and it went up there knocked all those trees down, turned back, left these trees here and went in this other area cleared the tree up and so on for about - for about five kilometres.

And then it stopped. And on that end of the north end of that - where that - where the flats starts from, big bluebush flats there’s a big quartz rock there and mum says that’s the nguning rock, and the nguning - nguning is the female dog (juju). That’s a nguning juju there, and I said how do you know it’s a female and she said see that little ones - little rocks there, on the side of it that’s her puppies.

And then down on the southern end where it stopped, there’s another quartz rock next to a place called 28 Mile Dam, and there’s another quartz rock there, but it’s only by himself, and that’s the male juju.

…

After they threw that boomerang, well the man who threw it, he went into the sky and he emerged as the moon, and he shone the light down - down in that flats area and because it’s a bluebush flat, when the moonlight shined on the bluebush it sort of illuminates it and some of the people - not all of the people - a lot of the people don’t go hunting at night, but some of the older - the warriors, they’d hunt at night.

And with that bluebush, you know they can see the kangaroos, see their ears sticking up and all that, yeah.

294    Ricky also gave evidence about several other important sites in the Mount Burges area, including a clay soak that was good for holding water and a particular oak tree (or ghoorlie tree) that could catch water and be a water source. Trees like these are called wanyal trees in Karlamaya language. Ricky discussed another soak, further away from Mount Burges, called Milaurdi soak. Europeans came and dug out the soak, which caused it to deteriorate and become ruined. It is now much more difficult to obtain water from that soak. Near Milaurdi soak is a large rock that is important for the Dreaming story for the silky pear. Ricky explained that silky pear is called karlkurla in Karlamaya language and this is what the town Kalgoorlie was named after. Ricky Dimer explained the karlkurla Dreaming story:

[The rock is] shaped like a - it’s about eight foot long, and it’s a sort of - shaped sort of like a - like a karlkurla, a silky pear, and it’s got a split in the middle.

And the Dreamtime story says when that rock split, that’s created where the karlkurla come from and the karlkurla when it - when it sheds its seeds, the skin goes hard and it splits open and the seeds got - got little silk strands on it and that carries off into the wind, and if you know what to look for - I was coming back from Kalgoorlie the other day - on the side of the road you’ll see you’ll see bushes but there’s - you’ll see a little bright green vine with nice little yellow buds.

That’s the beginning of the karlkurla. And that is what we call the karlkurla thugururu. The Western Desert people they call it tjukurrpa. We don’t. We call it thugururu.

295    Ricky Dimer explained that the Karlamaya word for Dreaming is thugururu, whereas the Western Desert people use the word tjukurpa.

296    Ricky also provided evidence at the Coolgardie rock hole, located in the town of Coolgardie, together with Maxine Dimer. Ricky said that in the Karlamaya language the rock hole is called Kulkurdi, and expressed his belief that the name refers to a red mulga tree (called curlka) located approximately 50 metres from the rock hole. Ricky expressed his belief that the town of Coolgardie originated from that name (Kulkurdi). Ricky provided the history of the Kulkurdi rock hole as told to him by his elders (including his grandfather, uncles and mum). The rock hole used to be a soak, which was much smaller and full of soft chalky rock that held water all the time. Europeans came and blasted out the soak to extend the rock hole so that it filled with water that could be used for steam trains. The Aboriginal people living in Coolgardie at the time did not like that. The rock hole then filled up with water after it had rained, and because there was no fence around it a couple of children drowned in the rock hole. When diesel power was introduced, the rock hole became unused as large amounts of water were no longer needed for the train engines.

297    Maxine Dimer gave evidence about the small ‘gnamma holes’ that were around the rock hole. These were natural depressions in the rock, around 30 cm to 70 cm across, from which her ancestors gathered water. Maxine also explained that her mother taught her that this was where her ancestors used to gather seeds from the acacia trees in the area and grind them into flour, which would be mixed with water to make little “Johnny cakes” or little dampers. As a result, there were often tools found in the area, such as flat bottom stones and grinding stones. Maxine has previously found these tools herself.

298    Ricky and Maxine Dimer also gave evidence about the significance of finches, which were sitting in a tree near where they were giving evidence at the Coolgardie rock hole. Maxine said that the finch was her totem and that they are a very common bird in Coolgardie. Ricky also recounted a story about the finches, which all have different coloured beaks. The story was told to him by an old friend, who has now passed away but was an initiated man. The finch storyline passes from Coolgardie across the Nullarbor and Rawlinna and extends to Eucla (for which the Aboriginal name is Euaila). In Euaila, the finches would eat from small bushes with berries that are coloured red, orange, yellow and purple, and that is how the birds got their different coloured beaks. Ricky noted that when he goes down to that area (which he visits often as his wife comes from Ceduna), he saw that the berries did indeed have different colours, and he understood the story that his old friend had told him.

Hunting, gathering and use of resources

299    Ricky Dimer explained that he went hunting with his father growing up when his father was working on Credo Station. He hunted for kangaroos and emu eggs. Ricky learned how to use a gun when he was eight or nine years old. Ricky does not hunt as much anymore. The pastoral stations closed down, which meant that the dingos came into the area and the kangaroos fled.

300    Ricky’s grandfather, Dick Donaldson, showed Ricky and Johnny Champion which birds to shoot and eat. These included emus, ducks, wild turkeys, the squeaker (a currawong, a black-and-white bird, larger than a magpie), pigeons, galahs, parrots, and even swans. Ricky remembered that mallee fowls used to be abundant and each season he used to visit all the large mallee fowl nests for the eggs. Ricky was shown which flowers to look for as indicators of when the birds were nesting, and of when bobtail lizards and goannas would wake from their sleep. There are certain flowers which bloom, indicating which animals, birds, reptiles and insects are around.

301    Dick Donaldson and Uncle Jack Champion taught Ricky Dimer a lot of what he knows now about bush skills, which he continues to practise. Ricky has passed on the rules and bush skills they taught him to his younger brothers and their children and grandchildren.

302    The rules concerning hunting are passed down from father to son and to other young boys in the family, together with the practical knowledge of which places are good for getting particular animals, and at which times of the year.

Wongatha people

303    Ricky was told by his father, Ollan Dimer, who lived at Mount Margaret Mission as a child with several Wongai families, that Wongai families do not have rights in Kapurn country, as they were brought onto the country. Ricky was also told by his mother and his uncle Clem (“Kingy”) that the Wongai people do not belong on Kapurn country. He was told that they came down into the Kalgoorlie / Coolgardie area after the mine started. Ricky explained that Aboriginal people came to the area because the mines meant there was food available through the sheep and cattle from the pastoral leases.

Maxine Patricia Dimer

304    Maxine Patricia Dimer made a written statement dated 4 August 2023, which was tendered in revised form on 3 October 2023. She gave evidence at the Kalgoorlie Town Hall on 3 and 4 October 2023, and at Coolgardie rock hole on 13 October 2023 jointly with her brother, Ricky Dimer. She was cross-examined on both of those occasions. A summary of the evidence provided by Ricky and Maxine at the Coolgardie rock hole is set out above in connection with Ricky’s evidence. Maxine also supported Ricky when he gave evidence at Mount Burges on 13 October 2023. Although she assisted her brother at times during his evidence, she was not formally called as a witness and did not give evidence at that location.

305    Maxine’s residential address is in Coolgardie.

306    I found Maxine Dimer to be a careful and honest witness who, although quietly spoken, sought to give direct answers to the questions asked of her. I accept her evidence.

307    In the course of cross-examination, Maxine was asked about the beliefs of her mother, Dorothy Dimer (nee Donaldson), concerning the Marlinyu Ghoorlie claim. As discussed earlier in the context of Ricky Dimer’s evidence, Dorothy Dimer was born in 1929 and, accordingly, at the time of trial was an elderly woman. She died after the conclusion of the trial on 1 June 2024. Dorothy Dimer is the daughter of Dick Donaldson and Alice Minjin. Dorothy Dimer had four siblings: Phil, Clem (“Kingy”), Henry and Bob Donaldson. All are deceased. It is convenient to address the cross-examination concerning Dorothy Dimer at the outset, as Maxine has inherited her rights and interests in Kapurn country through her mother, Dorothy.

308    During cross-examination, Maxine Dimer was asked about the Widji native title claim (WAD 6243 of 1998), which was filed in June 1998 and dismissed under s 84C(1) of the NTA for want of authorisation in 2012: see Velickovic v State of Western Australia [2012] FCA 782. As disclosed in the reasons for the dismissal, the Widji claim overlapped four other claims: the Ngadju claim (WAD 6020 of 1998), the Central East Goldfields claim (WAD 73 of 1998), the Kalamaia Kabu(d)n claim (WAD 6216 of 1998) and a claim brought by Marjorie May Strickland (WAD 301 of 2010) (which was a forerunner to the Maduwongga claim). As such, the Widji claim partly overlapped the trial area, but also overlapped an area to the south-east which is now recognised as Ngadju country. Again, as disclosed in the reasons for dismissal, the Widji claim group was framed in a narrow manner, being the “descendants of Kadee who have elected to trace descent through the forebears of Dorothy Donaldson” (being Maxine Dimer’s mother, Dorothy Dimer). An anthropologist, Dr Stephen Johnson, swore an affidavit in support of the claim, stating that the Widji elders are Dorothy Dimer and her children. Maxine acknowledged in cross-examination that she was a member of the Widji claim group (but it was not suggested that she was a named applicant for the claim). Maxine also accepted that, at that time, she identified as being a member of the “Widji people”. Maxine also accepted that she was not included in the claim group for the overlapping Kalamaia Kabu(d)n claim. Maxine was asked whether, at that time, she believed that Kalgoorlie and Coolgardie were not part of Kapurn country, to which she replied that she “wasn’t too sure”.

309    In her witness statement, Maxine Dimer said that her mother, Dorothy Dimer, described herself as “Kalamaia Maduwongga” as well as Ngadju and Kalarku. Maxine said that her mother told her that the word ‘Maduwongga’ comes from the Kalarku word marda meaning ‘hill’, which refers to the hill that Europeans call Mount Burges. During cross-examination, Maxine said that her mother did not accept that the name Kapurn covers the Coolgardie area.

310    Dorothy Dimer’s beliefs concerning her ancestry and rights in the trial area were considered by anthropologist Nell Taylor and are referred to in the context of Ms Taylor’s evidence below. Ms Taylor relied on two affidavits sworn by Dorothy, in 2004 and 2009, in other proceedings.

311    The evidence as a whole suggests that Dorothy Dimer’s beliefs about her family’s tribal name changed over time. However, whilst Dorothy appears to have adopted different tribal names over time, her beliefs concerning her ancestry and rights in the trial area appear to have been consistent throughout. In particular, Dorothy consistently stated that she was a descendant of Kaddee, through her son King Billy and his daughter Alice Minjin who married Dick Donaldson. Dorothy also consistently stated that she held rights and interests in at least the eastern half of the trial area, and also in areas that are now recognised as Ngadju country.

312    Understood in that context, I consider that Maxine Dimer’s evidence was not undermined by the evidence concerning her mother’s beliefs about the name Kapurn. Further, and importantly, the cross-examination did not cause me to doubt Maxine’s truthfulness as a witness. She answered all questions in a measured and direct manner and, as noted above, I accept her evidence.

Biographical background

313    Maxine Dimer was born in Coolgardie in 1954.

314    As noted above, Maxine’s mother was Dorothy Dimer, whose mother was Alice Minjin, and her father was Ollan Dimer, who was Ngadju and Mirning. Maxine has eleven siblings, including Ricky Dimer.

315    When Maxine was growing up, she lived mainly around Coolgardie, but also lived for a period in Esperance, Salmon Gums and Fraser Range (where her father, Ollan Dimer, was sent for work).

316    For the majority of her early life, Maxine Dimer lived at Credo Station. When Maxine was around 10 years old, the family moved to Coolgardie, where they first lived at the Coolgardie Reserve. Maxine’s parents later purchased a house on the north side of Coolgardie, and they moved further into town. Maxine started her primary schooling in Coolgardie. While attending high school, Maxine worked at the hospital.

317    After leaving school, Maxine Dimer worked caring for children in Southern Cross, Merredin and finally in Esperance, where she met her partner and had children. The family then returned to Coolgardie in 1980 to bring up the children. From the 1990s-2018, she worked as a health worker at Kalgoorlie Aboriginal Medical Service (commuting from Coolgardie). Maxine has three children and seven grandchildren.

318    Maxine Dimer said that her father, Ollan Dimer, was a Ngadju man from Balladonia. His father was Jacob Dimer, who was also a Ngadju man from Balladonia. Ollan Dimer’s mother was a Mirning woman.

319    As noted above, Maxine Dimer said that her mother, Dorothy Dimer, referred to herself as “Kalamaia Maduwongga” (as well as Ngadju and Karlaku). Maxine said that her mother told her that the word ‘Maduwongga’ comes from the Karlaku word marda meaning ‘hill’, and that the name ‘Maduwongga’ refers to the hill that Europeans call Mount Burges. As noted in the context of Ricky Dimer’s evidence, and discussed later in these reasons, ‘Maduwongga’ is a tribal name given by Norman Tindale to certain people he interviewed in and around the trial area in 1939. For the reasons explained below, I have concluded that the Aboriginal people who possessed rights and interests in the trial area before European settlement were not Maduwongga people. On the basis of Maxine Dimer’s evidence (and the same evidence given by Maxine’s brother Ricky above), and the ethno-historical evidence discussed below, I infer that Dorothy Dimer adopted the ‘Maduwongga’ name from the Tindale records and that it was not a name passed down to her from her parents or other forebears.

320    Dorothy Dimer’s father was Dick Donaldson, who was a Karlaku man from Fraser Range. Maxine Dimer said that Dick Donaldson came to Coolgardie where he met Alice Minjin, Maxine’s grandmother. They then had five children together, including Maxine’s mother, Dorothy.

321    Maxine Dimer said that Alice Minjin was Karlamaya and she spoke the Karlamaya language. Maxine said that her mother and grandmother used a lot of Karlamaya words and that the Karlamaya and Ngadju languages are almost the same.

322    Maxine Dimer said that Alice Minjin’s biological father was a white man named Michael O’Shaughnessy. Alice was then adopted by King Billy, who became her “tribal father”. Dick Donaldson told Maxine that King Billy was recognised as Kapurn. Maxine said that his Aboriginal name was Nymbarning (although other witnesses spelled his name as Nyuumani) and his country was Coolgardie. Maxine said that King Billy was the tribal man for mainly Kalgoorlie and Coolgardie. Maxine also learned from her mother that King Billy’s children were Frank Roundhead, Tommy Roundhead, Johnny Wilson (Johnny took the Wilson name after Alice came back from the mission with that name) and Alice.

323    Maxine said that Alice Minjin’s mother was Mary-Ann, who was Karlamaya. Maxine’s mother told her that Mary-Ann was born at Daveyhurst and she was from the ‘Paddy’ family. Maxine gave evidence that she identified the Paddy family in a Tindale genealogy and concluded that Mary-Ann’s parents were Nelly Paddy and King Paddy. The Paddy family is considered later in these reasons. The available historical information does not support Maxine’s belief that Mary-Ann’s parents were Nelly Paddy and King Paddy.

324    Maxine Dimer said that Lucy Sambo’s children, William and Cadley, grew up with Maxine Dimer’s mother, Dorothy, and her brothers. Maxine’s grandmother, Alice Minjin, looked after them as she didn’t want “the welfare” to take them.

Claim group identifying names and members

325    In her witness statement, Maxine Dimer said that Grandfather Dick Donaldson used the word Karlaku to describe himself. He described his wife (Alice Minjin) as being Karlamaya and said that the Karlamaya language group comes all through from Southern Cross, across to Coolgardie and then from Kalgoorlie across to Norseman. It continues to the Mirning people and mixes in with their area. Grandfather Dick told Maxine that the Karlamaya language group is one big society from Southern Cross right through to Kalgoorlie and Coolgardie, which includes clans with mixed dialects. Maxine Dimer said that her understanding is that Karlamaya also goes west of Southern Cross. In oral testimony, Maxine said that Grandfather Dick also described himself as Ngadju Karlamaya, as well as a Kapurn person and a Marlpa person.

326    Maxine Dimer also explained her understanding of the meaning of the names referred to above. She said that the word kapurn means ‘man’, and that it was used frequently in Coolgardie and the surrounding area. Maxine explained that the old people would say: “Who this Kapurn coming along?” Maxine said that she believed the word karla means ‘fire’ and the word maya means ‘home area’ or ‘camps’, with the connected word, karlamaya, meaning a campfire. Maxine said that marlpa is a word for ‘Aboriginal man’ in the Ngadju language.

327    As noted earlier, Maxine Dimer said that her mother, Dorothy Dimer, described herself as “Kalamaia Maduwongga” as well as Ngadju and Karlaku.

328    Maxine Dimer said that she is Ngadju Karlaku Karlamaya Kapurn. Maxine Dimer said that it does not make a difference if a person uses the name ‘Karlamaya’ or ‘Karlaku’ to describe themselves. The name ‘Kapurn’ covers the whole area.

329    Maxine Dimer said that her mother, Dorothy Dimer, spoke Ngadju, but that Maxine’s grandmother, Alice Minjin, spoke Karlamaya. Maxine said that her mother did not involve the children in learning language. She said that the elders did not want the children to speak language, because they were worried that “the welfare” would take the children away. Maxine said that she speaks some words in language, but she does not speak it fluently. She said that she is disappointed that she did not learn her language properly. Maxine explained that, when she was growing up, she spoke some Ngadju. She also spoke Wongai words that she learned in school, but Grandfather Dick Donaldson would tell her, “You can’t use that word because that’s not your language!”.

Kapurn people

330    Maxine Dimer said that the main families who are the traditional owners for the trial area are the Donaldsons, Champions, Sambos, Dimers and Wilsons (noting that the transcript incorrectly refers to the family name “Williamson” instead of “Wilson” — there is no reference in the evidence to a Karlamaya Kapurn family with the name Williamson).

331    Maxine Dimer said that her mother and her uncles told her that when Grandfather Dick Donaldson married Alice Minjin, the Coolgardie area (Kalgoorlie, Coolgardie and as far as Boorabbin) was left in the hands of Grandfather Dick Donaldson. Even though he was a Karlaku man, he was given responsibility for the Coolgardie area because he had married King Billy’s eldest daughter. Grandfather Dick Donaldson told Maxine Dimer when she was young that King Billy had passed on the rights to him through ceremony. He knew he did not own the country, but he was to look after it for King Billy’s descendants, who had the “right blood” for the country.

332    Maxine Dimer said that when Grandfather Dick Donaldson was in Coolgardie, he lived with her family. His “main thing” was to look after Maxine Dimer’s mother, Dorothy Dimer, as she was his only daughter. Maxine explained that Grandfather Dick Donaldson had to be in a separate house because he had lots of “tribal men” coming to visit him. She said that they came from Warburton and that her family called them “Wongi men”. Her grandfather told her that the men were special.

333    Maxine Dimer recounted that her family used to sit around the fire at night after dinner and Grandfather Dick would tell them Dreamtime stories. Maxine remembers that suddenly, a stone would come, or a noise, and her grandfather would tell them to go inside so that he could see his visitors. Maxine said that Grandfather Dick did “secret men’s business”.

334    Maxine Dimer said that her Grandfather Dick Donaldson used to take her to get firewood in a vehicle that her father had bought her so that she could learn to drive. Grandfather Dick took Maxine to some paddocks that were owned by the butcher. After they entered a particular paddock, Grandfather Dick would tell Maxine to wait in the car, while he would get out and walk approximately 200 metres and then disappear behind a tree. Maxine could not see what he was doing. He would then come back to the car and they would go and get firewood together. Maxine Dimer explained that around 20 years ago, she found the tree and went to look where her grandfather had walked. Maxine found a big hole in the ground near the tree. Maxine believes that there were message sticks in that hole left by tribal men, and that is why Grandfather Dick Donaldson would go there so often.

335    Maxine Dimer’s grandfather, mother and uncles told her that Ted Champion (Brian Champion Snr’s father) was a “lawman”. Maxine Dimer said that Ted Champion was part of “our group” and he and Grandfather Dick played a very important role together in caring for the boundaries of Karlamaya and Kapurn country. When Ted Champion and Jack Champion moved into Coolgardie in the 1960s, they would go out in the bush together and go to funerals. They would take Jack’s sons to the bush and teach them bush skills. Ted would go occasionally but he was quite frail.

336    Maxine Dimer said that Don Roundhead was the son of Frank Roundhead, and the grandson of King Billy. He lived in Coolgardie and came around to the Dimer’s house with his wife Noona in the 1960s and 1970s.

Kapurn country

337    Dorothy Dimer told Maxine Dimer that Alice Minjin’s country ran from Daveyhurst (in the north-east) through to Higginsville (in the south-east). Maxine said that her mother was born at Higginsville and the country is prone to bushfires. Higginsville is south of Widgiemooltha and outside of the trial area (in Ngadju country).

338    Maxine Dimer believes that Kapurn country goes east as far as the eastern side of Kalgoorlie, north to below Menzies and west as far as Mukinbudin.

339    In cross-examination, Maxine Dimer agreed that she has less knowledge about the country in the trial area that is to the west of Southern Cross (including around Mukinbudin) because she was not taught about that country.

Kapurn laws and customs

340    Maxine Dimer explained how rights were passed down under Kapurn laws and customs. She said that her own rights to country were passed down to her from King Billy through his daughter Alice Minjin. Maxine’s mother, Dorothy Dimer, told her that rights were passed down from the mother’s side. Maxine said that rights were not passed down by reason of being born in Kapurn country; rather, they were passed down through the family line. As an example, Maxine noted that that her sister was born in Esperance, but her rights are in the Coolgardie area.

341    Maxine Dimer’s knowledge of Dreaming sites was told to her by Grandfather Dick Donaldson. When Maxine was a child, he told her about a women’s site six kilometres south of Coolgardie. Grandfather Dick said it is a very important site that relates to a woman who fell over. There is a rock in the shape of someone who fell over and there is a cave underneath the rock. The cave has rocks that look like breasts hanging down, and up the top there is a waterhole showing her bottom. Maxine said that the Tjuntjuntjara tribal women (but not other Wongai people) still come and do a ceremony there. They put fresh gum leaf branches at the breasts, because it is a fertility site. Maxine noted that this does not mean that it is Tjuntjuntjara country.

342    Maxine Dimer said that Grandfather Dick stopped putting boys “through the law” around the 1950s because a young man had died from an infection after initiation. Maxine said that he still passed on knowledge of country, including hunting knowledge, by spending time in the bush with young men.

343    Maxine explained how she and other people respected the spiritual power of the country. She said that whenever they went out bush, they had to light a fire to let the spirits know they were there. Lighting a fire made sure that the spirits would watch over them.

344    Maxine Dimer said that in the old days, Noongar people and Wongais had to talk to elders before hunting on Kapurn country. She remembers they used to come and ask Maxine’s mother for permission and let her know they were going out bush. Maxine said that when they come now, they let her brother Ricky know.

345    Maxine Dimer said that the Tjuntjuntjara people from the east look after Kapurn sacred sites (but do not have rights in the country). They have standing permission from Kapurn people to do that. Maxine said that she does not know what sites they visit (apart from the women’s site referred to above) and that they come occasionally. They let Kapurn people know when they are on country. Maxine said that Grandfather Dick Donaldson gave permission for the Tjuntjuntjara people to have funerals and bury their people on Kapurn country. Coolgardie is a very important place for lots of tribes.

346    Maxine Dimer also explained her obligations to visiting people from other areas. Years ago, when men would come to look after the sites, they would sit in the backyard, and it was Maxine’s duty to give them a “feed and water”. She said that when they do come to Coolgardie, her brothers go and get a kangaroo for the visitors, and provide water and set up camp. Maxine explained that they have permission to enter, but if they disturb her country they will not “feel good themselves”.

347    Maxine Dimer also said that she passes on her knowledge to others. She said that she takes her children, grandchildren and her cousin’s children out in the bush. She teaches them bush skills, tells them stories, and teaches them about the country, language and animals.

Wongatha people

348    Maxine Dimer remembers that when she was a child, Grandfather Dick Donaldson had a relationship with the Wongai people based on the cultural law of passing messages and knowledge. Grandfather Dick Donaldson and “Teddy” (Ted) Champion attended ceremonies outside of Coolgardie and Kalgoorlie with all the different tribes. Maxine said that her mother, Dorothy Dimer, would call the Wongai people the “Leonora Laverton ex-Mount Margaret mission people”. Maxine understood from her mother that Wongai people came into Coolgardie and Kalgoorlie to work when the mine started and to send their kids to school.

Malcolm Edward Champion

349    Malcolm Edward Champion made a statement dated 4 August 2023, which was tendered in a revised form on 5 October 2023. He gave evidence at the Kalgoorlie Town Hall on 5 October 2023, and was cross-examined.

350    Malcolm Champion’s residential address is in Perth.

351    I found Malcom to be an honest and reliable witness. At times, in the course of cross-examination, he became impatient with the questioner. He appeared to have the impression that the questioner was seeking to cast doubt on the answers that he gave, which was not the case. This caused him, on occasion, to respond with undue defensiveness. However, that did not detract from his overall evidence, which I accept.

Biographical background

352    Malcolm Champion was born in Kalgoorlie in 1959.

353    Malcolm’s father was Malcolm Benjamin Champion (the brother of Brian Champion Snr) and his mother was Mary Constance Tucker (née Reynolds).

354    Mary was a Mirning woman, born at Mount Margaret Mission.

355    Malcolm Champion said that his father, Malcolm Benjamin Champion, was born in Babakin in approximately 1934. This was in the Wheatbelt Region, in Noongar country. Malcolm Benjamin Champion’s parents travelled around for seasonal work. Malcolm Benjamin Champion was sent to the Church of Christ Mission at Norseman when he was a child. Malcolm Champion gave evidence about the church and his father’s time at the mission. He said that the church divided and subdivided his people, took away their rights on their land, and their country, and tried to “destroy their spirituality”. Malcolm said that his father tried to escape three times from the mission and was eventually successful. After he escaped, he started working around Southern Cross for an Italian family.

356    Malcolm Champion said that his father’s parents were Edward Champion (“Pop Ted”) and Elsie Nelson / Riley (“Nana Elsie”). When Malcolm was growing up, he spent a lot of time with Pop Ted and Nana Elsie. Malcolm explained that Nana Elsie was a Noongar woman from Dumbleyung in Ballardong country. She grew up at Dumbleyung, Wagin and Merredin. Her father was a Noongar man from the Riley family. Her mother was Eliza Parker (“Granny Liza”), a Noongar woman. Malcolm knew Granny Liza from when he visited the Merredin Reserve when he was young. He remembers that Granny Liza was an important leader in the Reserve, and that she carried a six-foot wooden staff.

357    Malcolm Champion grew up in Kalgoorlie until he was 16 years old. He then moved with his family to South Australia, although he travelled back to his “own country” regularly. As a young adult, Malcolm spent several years studying in different parts of Australia. He returned to Kalgoorlie in the 1990s, and then later moved to Perth, where he currently resides. Malcolm said that he always returned regularly to Kapurn country and continues to do so. He said that he returns to Kapurn country monthly to attend to family business and for funerals. Malcolm currently sits on the board of an organisation called Western Australia General Practice Education and Training, which helps to educate doctors on how to communicate with Aboriginal people.

358    Malcolm Champion explained that he is a Kapurn man through his father’s side and a Mirning man through his mother’s side. He remembers his father telling him that he was Kapurn. On his paternal grandmother’s side, he is connected to the Ballardong and the Gnarla Karla Boodja (both of which are Noongar groups). Malcolm noted that he has multiple connections through each of his parents.

359    Malcolm Champion explained that his father told him that Pop Ted (Edward Champion) was the boss of the law at Coolgardie, alongside Pop Ted’s brother, Jack Champion (“Granny Jack”). Malcolm recounted a story that Nana Elsie told him. Malcolm said that Pop Ted held the power of life and death. When Elsie took Pop Ted to Kellerberrin in Noongar country to meet her family (the Humphreys and the Yarrans), they asked her to take him back to his own country in Coolgardie. They were scared that they would face retribution if anything happened to Pop Ted while he was visiting. Malcolm noted that his parents and uncles had also told him this story.

360    Malcolm Champion said that Pop Ted was a small man, but Granny Jack was very tall. He was approximately seven feet tall and that his fist was twice the size of a normal man’s. Malcolm said that Granny Jack would stand behind Pop Ted, to back him up.

361    Malcolm Champion also said that his Uncle Dick Donaldson and Uncle Kingy Donaldson were important elders along with Pop Ted and Granny Jack.

362    Malcolm Champion told a story about Pop Ted receiving message sticks from other tribes. He explained that runners from other tribes would come into Kalgoorlie and go straight to Pop Ted’s house, where they would stand in the backyard. Pop Ted could not read English, but he could speak many languages, and could read the message sticks, which were etched. Pop Ted would go out to the runner, who would open the bag and pull out the sticks and pass them to him. Malcolm noted that the sticks would never be passed to anyone else. Pop Ted would then walk away, sit down and read the stick. He would put his markings on the same message stick, and it would be sent back to the runner, who would take it back to the people waiting on the outside of the eastern Kapurn boundary.

363    Malcolm Champion said he has never been through law but is now considered to be an elder for Kapurn people. This status was granted to him by his uncles when he was 62 years old. Malcolm noted that he is widely accepted as a senior elder in other areas that he has a connection to as well.

Kapurn country

364    Malcolm Champion said that he was told by Pop Ted and his uncles that Kapurn country goes from around the Kalgoorlie / Coolgardie area to out past Mukinbudin in the west. It takes in Widgiemooltha and Kambalda in the south.

365    Malcolm said that the boundary with the Badimia people (to the north-west of Kapurn country) is in the vicinity of Lake Moore. In the centre of the lake there is a special cave, but you cannot get in there because of the quicksand.

366    Malcolm said that there is a sacred site called White Rock in the vicinity of Mukinbudin, which marks the south-western border of Kapurn country.

367    Malcolm remembered that on one occasion in the 2010s, when he was working for the South West Aboriginal Land and Sea Council, he went on a trip with Dr Noel Nannup (a Noongar elder and expert on Noongar culture). Malcolm remembers taking a busload of students out on country. They travelled east along the road that runs through Goomalling, Wyalkatchem and Trayning (all in Ballardong country), and then turned left on the road towards Mukinbudin. Malcolm said that they stopped at a place at or near Mount Grey, within the trial area and near White Rock. When the students started asking Dr Noel Nannup questions about the place, he wouldn't answer, and he asked the students to direct their questions to Malcolm.

368    Malcolm Champion said that you can tell if a particular place is in Kapurn country because it will have a name in the Kapurn language. Malcolm said that all the rocks and hills and the trees have Kapurn names.

369    Malcolm said that the language for Kapurn country is Karlamaya, which is a language, not a tribe. He can speak a few words of Karlamaya, but he was not taught it when growing up.

Kapurn laws and customs

370    Malcolm Champion said that the Donaldsons could speak for country around Kalgoorlie and Coolgardie, and also over to Southern Cross. Malcolm said that the Donaldsons are Kapurn men so they have a right to speak for all over Kapurn country.

371    Malcolm Champion said that a lot of learning about Kapurn laws and customs happens by sitting and listening to the elders on country. Elders taught him who they are as a people and where they are from. He noted that it is a continual learning process, and that you learn different things at different stages of your life. As a Kapurn person learns more, they will then start passing it down, from uncles to nephews. Malcolm explained that uncles had an important role for his people:

Under Kapurn law, uncles teach their nephews; the uncles had the right to tell us when to jump, how to jump, what to learn, what not to learn.

372    Malcolm Champion told a story that exemplified how serious the relationship with his uncles was. He recounted that his paternal uncles tried to teach him how to shear sheep. He was right-handed, but his uncle was left-handed, and Malcolm found it hard to follow. Malcolm’s uncle hit him with a shear. When he got back into town, he complained about it to his parents. His father gave him another hiding, for disrespecting his uncle.

373    Malcolm Champion explained that to be Kapurn, you had to be “blood born”. This means that you have to have Kapurn ancestors. It is not sufficient to be born on Kapurn country.

374    Malcolm said that “Kapurn law” was stopped by Pop Ted (Edward Champion) and Granny Jack (Jack Champion) a long time ago. He explained that this meant that the ceremony for men in relation to that “secret business” stopped being conducted. Malcolm said that every other aspect of Kapurn law continues to carry on and everyone continued to be Kapurn after the men’s secret law business stopped. He said, “You born a Kapurn, you die a Kapurn. That’s law”. Malcolm also explained that the law being stopped did not mean that any new law could come into Kapurn country. If it did, that would be “a very big insult” and a “desecration”.

Knowledge of country and significant sites

375    Malcolm Champion said that there are secret places and sacred places that he knows about in Kapurn country. He was told about these places by his father and uncles. He has an obligation under Kapurn law to protect these places and ensure that they are left alone.

376    Malcolm Champion explained that if you go to a special place you need to make sure that you are allowed to be there. When he was younger, Malcolm would ensure that he was accompanied by an elder. Now that he is an elder himself, he said that he can go to the special places alone.

377    Malcolm gave evidence about a particular special site called Moorine Rock, located on Kapurn country. He explained it was an important place that involved cultural exchanges for people from different tribes as it was located on one of the main traditional trade routes:

My – one of my uncles, my father’s brothers – Uncle Dave gave me a full history rundown on Moorine Rock. And the ceremonies that people come together, they would exchange boomerangs for spears, emu egg shells that was used like money – bartering system – and then they would promise children away to marriage, and then they would also add marriage – people married there.

378    Malcolm said that people from Noongar, Yuwa, Yamatji and Kapurn tribes would meet and trade at Moorine Rock.

379    Malcolm also explained the Kapurn practice of “letting the land know that you are there”, when you visit sites on country. He said that this involved explaining to the land “who you are, where you fit in, and you are not coming to destroy, kill, take, that you’re there to respect the land and just checking it out to make sure everything is safe”. Malcolm said this practice is widely known among Kapurn people and is still carried out today.

380    Malcolm Champion explained that his father and uncles taught him how to hunt. In particular, Malcolm was taught by Uncle Cadley Sambo, who was married to Malcolm’s auntie, Gertie Champion. When he was young, Malcolm said that the Champion and Sambo families used to always go out bush together to hunt around the dams. He explained that they were taught not to kill for the fun of it and to only take what you were going to eat. Their main diet back then would have been kangaroo, emu, and, if they were lucky, goanna. Malcolm said that the most prized parts of the kangaroo were the tail and the kidneys. Every part of the emu can be used, and some parts have medicinal qualities. Malcolm said that he was taught to never shoot an eagle, or else you would get knocked in the head. He also said that the person who killed the animal would always get the last piece, and everyone else would be served first. Malcolm said that he had hunting rights all around Kapurn country, including in the area around Southern Cross and Mukinbudin.

381    Malcolm Champion gave evidence about totems in Kapurn law. He said that his totems were the porcupine, the emu and the goanna. The Karlamaya words for these totems are tjilkamarta, kalaya, and perente respectively. The emu totem is the most important in Kapurn culture and society. There are two other kingfisher birds that are also totems for Kapurn people.

Noongar people

382    Malcolm stated his belief that Noongar people do not have rights in Kapurn country. Malcolm said that Reg Yarran Snr was a very well-respected elder for his country, but he did not have rights to speak for Kapurn country. Malcolm said that, when Reg Yarran Snr was alive, he (Reg) rang him to ask permission to go out to Southern Cross. Malcolm said that he gave Reg Yarran Snr permission to go out to the area.

Wongatha people

383    Malcolm Champion said that “Wongi” is not the name of a tribe, but rather a collective term for different groups to the north-east of the trial area. This includes the Ngaanyatjarra, Wongatha Wonganarra and the Wongatha people. Their country is north-east from the trial area, approximately 60 kilometres from outside of Kalgoorlie heading north to Menzies. Malcolm expressed his belief that Wongatha people have, over time, moved to Kalgoorlie because of the location of hospitals (such as the Kalgoorlie Regional Hospital), church missions (such as the Kurrawang Mission which is located between Kalgoorlie and Coolgardie) and even prisons (such as the Boulder prison - Malcolm said that family members move to Kalgoorlie to be close to their family members who are imprisoned at Boulder prison).

Brian Edward Champion

384    Brian Edward Champion is also known as Brian Champion Jnr, to distinguish him from his father, Brian Champion Snr. Brian Champion Jnr made a statement on 6 September 2023, which was tendered in a revised form on 5 October 2023. He gave evidence at the Kalgoorlie Town Hall on 5 October 2023, and at three sites located in the west of the trial area, Beringbooding Rock, Elachbutting and an ochre site, on 10 October 2023. On each of these occasions, Brian Champion Jnr was cross-examined.

385    Brian Champion Jnr’s residential address is in Kalgoorlie.

386    I found Brian Champion Jnr to be an honest witness who sought to assist the Court and to answer questions as clearly and as directly as possible. I accept his evidence.

Biographical background

387    Brian Champion Jnr was born in Kalgoorlie in 1973. His father is Brian Champion Snr and his mother was Mavis Laura Champion (née Wilson).

388    Brian said that his father is a Kapurn and Noongar man. His father’s father was Edward (Ted) Champion, who was a Kapurn man, and his father’s mother was Elsie Champion (née Nelson), who was a Noongar woman.

389    Brian said that his mother was a Kapurn, Ngadju and Mirning woman. His mother’s father was George Wilson (whose Aboriginal name was Billangnarra) and was a Kapurn man. George Wilson’s father was Johnny Wilson (whose Aboriginal name was Kaparl), whose own father was King Billy (whose Aboriginal name was Nyuumani).

390    Brian Champion Jnr is as a Kapurn man, coming from both his mother and his father. His children are Kapurn through him.

391    Brian Champion Jnr’s main teachers about Kapurn country, and the sites in Kapurn country, were his Pop George Wilson, uncles Dave and Tim Champion, and Clem Donaldson (who was his father’s cousin-brother). This was in accordance with Kapurn law, whereby young men learn from their uncles, rather than from their father. Brian explained that his mother did not have any brothers. Following the same custom, Brian Champion Snr was the main teacher for Tim Champion’s son, James Champion.

392    Apart from four years when he was studying at the University of South Australia in Adelaide and several months living on his late wife’s country in Ceduna, Brian Champion Jnr has been based in Kalgoorlie his whole life.

Knowledge of country and significant sites

393    Brian Champion Jnr said that, for many years, it has been an Easter tradition for his family and other Champion families (including the families of his cousins, his late Uncle Tim Champion’s children, James and Noelene, and members of Uncle Ben Champion’s family, including the late Raelene Peel), to go out to the Southern Cross / Mount Jackson area and camp at Elachbutting:

We’d leave the day before Good Friday, and return on the following Tuesday. These Easter trips are still happening. On past trips, our main camp would be at a place called Elachbutting, between Bullfinch and Mukinbudin. From there we would go hunting (mainly for kangaroo, aka marlu), and checking on sites. We would then visit sites in and around Mukinbudin and places north of there, including Beringbooding Rock, Kalkullen Reserve (this was where Uncle Tim told me that he and my auntie Greta Champion lived when they were going to school at Munckinbudin [sic]), Wialki, Bonney Rock and Dearanning (there is a big site on top of the hill there). We would then make the return journey taking the back way; not on the bitumen, but on the dirt road that goes from Mount Jackson/Windarling through to Menzies (turning off at the road towards Daveyhurst). We would (and still do) visit sites on the way back at Snake Rock, UIlaring, Mulyerrie, Daveyhurst, Wanjin Soak, Ora Banda, Credo and Rowles Lagoon. We would also go to Burra Rocks and Cave Hill. These trips have enabled the men to share the information that we have been given by our uncles, our grandparents and out great-uncles, and so I have very strong knowledge of the sites in those areas.

394    In oral testimony, Brian Champion Jnr said that the main purpose of the Easter trips was “to show our kids and pass on our knowledge to our kids about all of the sites in and around the area”.

395    When the Court visited Elachbutting, Brian Champion Jnr identified the location as the camp site for the family’s Easter camp. Brian said that it is a good rainwater source and described ‘gnamma holes’ or waterholes where the rainwater is caught. Brian identified a medicine bush:

What we do is we would – we’d get a bigger tree than that, of course. We’d cut it up. Take the grass off it – well not the grass, the leaves off it, generally, and just make it enough so we can fit it in a pot. Boil it up with water ... It’s apparently done miracles for things like cancer and that for other people. But, yes, it’s one of those – something – you can use it for body aches, anything like that so, yes, it’s used for anything and everything.

396    Brian Champion Jnr told the Court that this knowledge was handed down to him as a child. He remembered being fed that drink if he was sick. Brian Champion Jnr identified a quandong tree, which Kapurn people call dumberry. The tree produces red fruits (dumberries) which are edible and can be made into jam. Brian also identified a moran tree. He explained that bardis (or witchetty grubs) could be found by identifying cracks under the tree and digging with digging sticks to dig out the bardi from the roots of the tree. Brian said that, if one broke, “you had to eat it, raw … otherwise we’d normally put it in the bag and take it back to the camp and chuck it on coals”. He told the Court that he learned these skills from his mother and grandmothers and has taught them to his own children.

397    When the Court visited Beringbooding Rock, Brian Champion Jnr gave evidence alongside his father. Brian Champion Jnr said that he had been to Beringbooding Rock many times since he first visited around 2014. Brian Champion Jnr said that he had also been to De-Eranning Hill and viewed the rock art inside the cave at the top of De-Eranning Hill. De-Eranning Hill is a short distance to the north of Beringbooding Rock (but the Court did not visit that location). In oral testimony in Kalgoorlie, Brian Champion Jnr said that he had visited De-Eranning Hill a couple of days before the hearings took place, but decided it was too difficult in the heat for the Court to visit the site. He told the Court:

… there’s a massive big outcrop on the tip of the hill – not outcrop, it’s a big rock on top of the hill and which has still got a lot of artefacts down the bottom. The artefacts, yeah, you know I mean I’m talking about like there’s rock art and artefacts in there as well, if that makes sense.

398    Brian Champion Jnr said that there were grinding stones and other tools such as cutting tools at that location.

399    Brian said that the rock art at De-Eranning Hill is very similar to the rock art at Beringbooding Rock:

You can see the stencils. You can see the emus – that emu – and you can certainly see the same line – the same line up there. And it goes from one side of the cave to the other. … growing up as kids we were always growing up when we talk about – and I’ll use the white man’s term – the emu eye is always open and as kids we weren’t allowed to look up in the sky at night, but if we did – if you found the emu we were told when that emu closes its eye, that’s when – that’s the end of the world, and the emu is also – I mean it’s also the seasonal thing as well, when they’re laying eggs and so forth.

400    Brian Champion Jnr said that, at Yanneymooning Hill, there is a rock hole “and it’s got natural spring water that just comes out of it”.

401    Brian said that Marda (Mount Jackson) is:

… the place of all places. If you want to see artefacts, it’s got the rockhole there, the artefacts. You get out of the car, you can find artefacts all around you …

402    Although he is aware that there is a story for that place, which his father has told him, he could not recall the particulars of it, although he told the Court that:

… that’s one of those places where you do get – your hair stands up when you go out there because you can – it’s fantastic. You know, your body hair just it will stand because it’s such a – you know, the place – it doesn’t do it justice in the fact that it’s mined.

403    Brian Champion Jnr also gave evidence at a white ochre site. Brian said that Kapurn people call the white ochre jirdahguering. The white ochre was visible on the banks of a creek. Brian described the traditional use of white ochre:

It’s used for many things but the majority of things, it’s for corroborees. We would have used this white ochre in particular for trading purposes as well, for those – for neighbouring tribes who don’t have white ochre in their country. … It’s a bartering system.

…

People would paint their bodies, use it for their bodies. I’m not at liberty to say how they mix it up and so forth because I think it’s probably going into a bit too much cultural context in that because I don’t particularly – I mean now a lot of people do just mix it with water but traditionally if water wasn’t around, it wouldn’t have been mixed with water necessarily but yeah, that’s all, all I’ll say.

404    Brian Champion Jnr said that he was taught about the use and trading of ochre and spears by his father and his uncles (his father’s brothers), and by his mother’s father whom he referred to as Pop Wilson. Brian learned that Kapurn people traditionally traded ochre with Badimia people to the north of Kapurn country.

405    Brian Champion Jnr said that Kapurn people still use ochre, putting it on their bodies for dances.

406    At the same location, Brian Champion Jnr pointed out “spear trees”, being trees that were used for making spears. Brian Champion Jnr told the Court that his father, his Uncles David, Timothy, Clem, Old Kingy, and his Grandfather George Wison had told him that spears and ochre were both objects traded by the Kapurn people:

I remembered my old pop saying to me and not just me, my siblings, … with my brothers in particular, that the Ngadjumaya having the best trees, the Ngadjumaya being the south mob. I’m Ngadju myself through his wife, through my grandmother, I should say, my grandfather’s wife so I know that they have the best spear trees there, that’s how they would say it and then they would trade it up, if that makes sense… they’d be just bringing their spears and they’d trade it for, could be ochre, it could be meat, we might have all the malus, because they only have kulbits down there, they don’t have malu if that makes sense, yeah.

407    Brian Champion Jnr said that, in April 2019, James Champion (son of Brian Champion Jnr’s uncle, Tim Champion, and grandson of Ted Champion) and he organised a bus trip to teach the new generation of Kapurn men about their country:

James’ brother Bruce also came along for the whole trip. My father, Brian Champion Snr, didn’t come for the whole trip, but joined us in towns along the way, such as Beacon, Mukinbudin and Southern Cross. We went to Mukinbuden [sic], and travelled from there through the backtrack, in a big loop through Bullfinch, north to Windarling and then back out to Ora Banda, stopping to show the young men sites along the way. James, Bruce and I showed them different places in our country, told them the significance of them, and told them the stories associated with them. This was knowledge that we had mainly learned from the preceding generation of Kapurn men.

408    Brian Champion Jnr provided the Court with photographs taken on that trip. One photo was taken at Charlie Paddy’s gravesite at the insistence of his father, Brian Champion Snr, who “wanted all of us to realise how important Charlie Paddy was to him and to the Gubrun people”. Brian Jnr said that he was told that the Paddy brothers were Kapurn people. In cross-examination, Brian Jnr said that he believed that Charlie Paddy had a wife called Frances.

Kapurn laws and customs

409    Brian Champion Jnr said that his totem is the kingfisher bird. He learned this from his grandfather, Pop George Wilson and his Uncle Kingy Donaldson, and that they gave him that totem when he was born. Brian said that he is not allowed to harm the kingfisher bird because it is “a part of you” and “embedded in you”.

410    In other evidence, Brian Champion Jnr said that other totems for the Kapurn people are the echidna (jilkamarta) and the kurrajong tree.

411    Brian Champion Jnr said that he knows people who have the power to make a person sick or well. The Kapurn word for those people who make you well is ngangkari.

412    Brian Champion Jnr also spoke about the spiritual power of the country. He said that if “you went out to the wrong country, without speaking to the spirits and saying the right things prior to going out, yeah, of course you can get quite ill from that”. Brian Jnr said that, to stay safe on country, you have to “talk to the spirits and let them know that you’re there”. Brian Jnr said that was “embedded into me as a child”. Brian Jnr said that people who have died, “the old people”, are:

… always around us and they’re always here around us and they’re protecting us. They’re watching us if we’re doing the right or wrong thing. If we do the wrong thing, they’ll be out to get you and punish you.

413    In cross-examination, Brian Champion Jnr agreed that, under Kapurn law, there is a special relationship between uncles and nephews for the transmission of cultural knowledge.

Mark Anthony Champion

414    Mark Anthony Champion made a statement dated 31 July 2023 which was tendered in evidence, and he gave evidence at the Kalgoorlie Town Hall on 6 October 2023 and was cross-examined.

415    Mark Champion’s residential address is in Perth.

416    Mark Champion explained in his statement that the statement contains phonetic approximations of words in the Karlamaya language. Mark also explained that, for the sake of clarity, he uses the full names of deceased persons in his statement, whereas normally he would try to avoid this (especially in the case of a recently deceased person) and would refer to them as, for example, Kulbarl Donaldson (where kulbarl is the Karlamaya word for ‘deceased’).

417    I found Mark Champion to be an honest witness who sought to assist the Court and to answer questions as clearly and as directly as possible. I accept his evidence.

Biographical background

418    Mark Champion was born in Kalgoorlie Regional Hospital on 30 January 1966. He is the eldest son of Brian Champion Snr and Mavis Laura Champion. Mark described his father as a Kapurn and Noongar man, and his mother as a Kapurn, Ngadju and Mirning woman. Mark’s siblings are Lionel, Tania, Darren Snr (now deceased), Robyn and Brian Jnr.

419    Mark Champion’s paternal grandfather was Edward Champion and his paternal grandmother was Elsie Champion. Edward Champion was the son of Nellie Champion (Kajjaman), one of the apical ancestors named in the Marlinyu Ghoorlie application. Mark Champion said that, although he knew his grandmother, Elsie Champion, he has no memory of his paternal grandfather.

420    Mark Champion’s maternal grandfather was George Wilson (whose Aboriginal name was Billangnarra), who was a Kapurn man. Mark referred to him as Pop Wilson. George Wilson’s father was Johnny Wilson (whose Aboriginal name was Kaparl). Johnny Wilson’s father was King Billy Wilson (whose Aboriginal name was Nyuumani). King Billy was a son of Kaddee and Warada who are also apical ancestors in the Marlinyu Ghoorlie application. Mark’s maternal grandmother was Tootsie Wilson (née Dimer) who was a Ngadju and Mirning woman.

421    Mark Champion gave evidence that his maternal grandparents had two daughters, his mother Mavis and her older sister Nancy:

My Aunt Nancy was born at Emu Point which is on Ngadju country, out in the bush and then they had to leave, moved to Mt Margaret Mission because my grandmother’s father, Jacob Diamond had passed and they were afraid that Mr Neville, the welfare officer would come down and try to take some of my grandmother’s younger siblings, so they all fled up to Mt Margaret Mission, and that’s where my mum [Mavis]was born at Mt Margaret Mission.

422    Mark said that he also referred to Don Roundhead as a grandfather, because Don was George Wilson’s first cousin. Mark also refers to Clem Donaldson and Phil Donaldson as grandfathers.

423    Mark Champion spent his infancy and childhood in Coolgardie. Mark said that his maternal grandparents, Tootsie and George, were a big part of his life growing up, as well as his aunt Nancy and his cousin Lyle Wilson. While the family was living in Coolgardie, they would regularly visit Credo Station (which is north-east of Coolgardie) because Mark’s grandparents, aunt and mother worked on Credo Station before Mark was born. Mark went to school in Coolgardie until about grade four or five. Mark described some of the other people living in Coolgardie in the early 1970s when Mark was growing up:

So there was the Donaldson family. They were living at my Aunty Dot. There’s a family connection both ways, my Aunty Dorothy Donaldson is my Pop George Wilson’s cousin, first cousin, and she married Ollan Dimer and that’s my grandmother, Tootsie, she was a Diamond, that’s her younger brother. So there was a family connection twice, if I can put it that way; but the other family was Uncle Phil Donaldson and Uncle Henry. I remember him. Henry Donaldson, and even old grandfather Dick Donaldson. I remember seeing him and meeting him. There was also Pop Jack Champion, he was living behind us, and there were other Aboriginal families there too, the Merediths, I remember them living there in Coolgardie.

424    In about 1975, Mark Champion’s father, Brian Champion Snr, got a job as a caretaker at the Higginsville Pumping Station, which was located in the bush about 20 minutes south of the town of Widgiemooltha. The family lived out at the Higginsville Pumping Station until about 1979, and then moved to the Widgiemooltha Pumping Station, which was very near to the town of Widgiemooltha. While the family lived in Widgiemooltha, Mark attended high school via correspondence for years eight and nine.

425    In 1981, the family moved to Kalgoorlie and Mark finished his high school in Kalgoorlie. Other family members were already living in Kalgoorlie at that point including his Uncle David Champion and his family and Mark’s mother’s family, the Dimer / Reids.

426    During the 1980s, Mark Champion worked for the Aboriginal and Torres Strait Islander Commission in Kalgoorlie. In the early 1990s, when he was 27 or 28 years old, he moved to the eastern states, but returned to Kalgoorlie regularly for holidays. In 1997, Mark was working in Tamworth, but took a year off to return to Kalgoorlie because his grandparents were getting old. Three months after he returned, his grandfather, George Wilson, passed away.

427    Mark said that the main people who taught him about law and country were his father Brian Champion Snr, his mother’s father, George Wilson, and George Wilson’s cousins, Clem and Phil Donaldson. Mark said that, when he was growing up, he referred to Clem and Phil Donaldson as “Uncle”, but now he refers to them as “Pop”. Mark said that Clem and Phil Donaldson also took him out bush and showed him rock holes out from Coolgardie.

Claim group identifying names and members

428    Mark Champion said that George Wilson told him they were Kapurn and:

… [he] also told me clearly that the Ngadju, Noongar and Wongi do not come originally come from this area. I asked where the Kapurn came from and he said from the Coolgardie/Kalgoorlie area and back towards Southern Cross.

429    Mark Champion said that the language of the Kapurn people is “Kalamaia, Kalaako or just Kapurn”. He uses all three names and, although he prefers ‘Kapurn’, he regards himself as Karlamaya, Karlaku and Kapurn.

430    Mark stated his belief that the families which make up the Kapurn people are the Champions, Sambos, Donaldsons and Wilsons. Mark was told that the neighbouring tribes were the Ngadju to the south, Badimia to the north, Noongar to the west and Wongai to the east.

431    Mark Champion identified King Billy, Ted Champion and Jack Champion as senior Kapurn law men. Mark said that other important Kapurn men included George Wilson’s younger brother, Cecil, Don Roundhead and Dick Donaldson. Mark Champion was told by his father and his Uncle David Champion that Pop Dick Donaldson was very close to Ted Champion and Jack Champion (his other two Pops) and that Pop Dick Donaldson had been adopted into the Kapurn people. Mark said that, until Ted and Jack Champion passed away, they and Dick Donaldson were jointly responsible for the Kapurn boundary. After the deaths of Ted and Jack Champion, Dick Donaldson became solely responsible for the boundary.

Kapurn laws and customs

432    Mark Champion deposed that a person can obtain rights to Kapurn land through blood or adoption, but not marriage: his mother’s mother was Ngadju and remained Ngadu despite being married to his mother’s father who was Kapurn. By contrast, Dick Donaldson was adopted into the Kapurn people and became knowledgeable about Kapurn laws and customs. Mark Champion said:

I really don’t want to get too much involved talking about the Law business, because it is quite a sensitive subject. But all I will say is that certain senior Law men go through certain stages, and only they know certain stories. If I could put it that way. And Pop Dick Donaldson would have been one of those Law men.

433    Mark Champion’s father told him that, to marry his mother in the 1960s, Brian Champion Snr had to get approval from Brian’s father and his Uncle Jack, as well as from the Roundhead / Wilson / Donaldson mob.

434    When he was young, Mark Champion was taught to respect his elders.

435    Mark Champion told the Court that the Kapurn word for snake is bimara and that his Uncle Clem Donaldson (Uncle Kingy) told him the story of how:

Bimara the snake would turn around under the surface of the earth and wherever he’d pop his head up, he’d create either a permanent water source, a spring, or a seasonal water source like a rock hole that would store water during the good seasons.

436    Mark Champion said that he was taught by his father, Brian Champion Snr, about Gidikie and Wandjuni, the two hawk brothers, who helped the Kapurn and the rest of humanity get fire (karla):

In the story of the Two Brothers, a Turkey has a fire stick and the first people asked the Turkey for a fire stick, but the Turkey said no. The Two Brothers, Gidikie and Wandjuni, overheard this and thought the Turkey was being mean, so stole the fire stick and gave it to the people.

437    Mark Champion said that, to this day, when small animals, like lizards, are killed by a bushfire, his people always leave some of the remains in thanks to the hawk brothers who gave them the ability to make fire. Mark said that he has been looking into restarting traditional burn offs through ranger programs.

438    Mark Champion said that he is aware of the Karlkula Dreaming track, which follows the karlkula (silky pear) plant. The Dreaming track commences from several sources, including from the west at Malyoorie (Mount Burges), north-west of Mount Johnston near Mount Elvira area and south at Red Hill (Warlyirrpi) at Kambalda and runs towards the east passing through Kapurn country and ending at the Karlkula Rock hole just out of Williamstown, near Mount Charlotte on the outskirts of Kalgoorlie.

439    Mark Champion said that his father had shown him a Dreaming track south of Boulder relating to the millika bird (which is also known as the western scrub robin). Mark explained that the millika bird rests and shelters in a particular native shrub plant species and can form an effective early warning alarm system as they make a lot of noise if any intruder comes close to their nests, which made for a good camping ground:

So the Millika was a small bird that would roost at night in a small shrub, our old fellas told us that before the white fellas came our old fellas would go and make camp around this bush shrub because they knew that this bird will always camp there at night too. So they would always be listening out at night and if there was any strangers, intruders coming towards the camp, that bird would fly up and would disturb the bird and it would fly up, so whichever direction, they could hear the noise of the bird flying up. That’s when the old fellas would go in the opposite direction because they knew that there was strangers coming to the camp.

440    When they visit sites on country, Mark Champion said that his father will “say a password” so that the ancestors know that Kapurn people are visiting and that they are not going to harm country. The password is a “key word that only Kapurn people would know”. Although he knows what the word is, he has not taught it to anyone else and that before doing so he would need his father’s permission.

441    Mark Champion said that one of the main totems for the Kapurn people is the ngarrka (kurrajong tree):

A lot of fellas call it the tree of life. You can go out to pretty arid country and even in the middle of summer, hot as anything, 40 degree heat but the kurrajong tree always seems to have you know, the greenest leaves and always seems to be thick and provides a lot of shade, not just to humans but to a lot of animals too.

442    Mark Champion recalled his father, Uncle Kingy and Clem Donaldson teaching him about the tree. Mark said that when he sees a kurrajong tree:

I make it my business to go and just walk up and walk under it just to – I feel it’s energy, it’s quite a beautiful tree… I feel you know, like I’m comfortable, it’s a good feeling.

443    Mark Champion said that his other totems include the kingfisher (burrungu) and the rainbow bee-eater (duma). He said that he is aware of rules prohibiting him from ever harming or eating those birds.

444    Mark said that there is a Dreaming site at Ngalyarrie (Rowles Lagoon), which was a seasonal water source which holds water for a season or two if it has had good rains. The site is named for a species of tree which grows around the lagoon.

445    Mark identified another Dreaming site at Wanjin soak, north-west of Kalgoorlie, on the eastern side of the trial area:

It is a quartz outcrop and warriors would go there to settle their nerves if they were nervous, with younger warriors often taken there before a conflict. Conflict would normally be with tribes to the east.

446    Mark is also aware of other Dreaming sites including rock holes near Coolgardie, and at Bungalbin, a natural rock formation north-west of Southern Cross, both of which he has been to, as well as a site at Mount Manning (Warlanya), which he has not visited.

Knowledge of country and significant sites

447    Mark Champion said that George Wilson told him that there were a number of Kapurn camps in the early days of Kalgoorlie / Boulder, including one at Usher Park and another out at Parkston.

448    Mark said that, when he was growing up, his parents and grandparents would take he and his siblings on trips out to the bush to see the country:

[So with my Pop Wilson we] used to go out to Credo Station and he would show us rock holes on the way. He used to work out there before I was born. My grandparents and my mum and my aunt and members of the Donaldson Dimer family too were also working out there. So we used to go out a lot when we was kids. My grandmother would show us how to dig up bardis and you know, gut a goanna (Kalka), or we’d go shooting with my older cousin Lyle and Pop Wilson and dad and that.

449    During these trips the children were taught how to live off the land. They were taught traditional methods for skinning and preparing kangaroos for eating. Mark said that they mainly hunted marlu, and he was taught how to find and dig up bardi grubs, which live in the roots of a bush called the murrin bush. Mark said that they only hunted the smaller local sand goanna species, which they called kalka as the larger species were mainly in the desert and “they didn’t come into our country very much”. Mark was also taught how to find and dig up junga junga, a local yam species, which can be dug up throughout “our country” and that they would harvest the karlkula fruit, “known by white fellas as silky pear”, when this was in season. Mark said that, on rare occasions, they would eat parrot, and recounted:

… we had been shooting some for target practice, and my Grandmother Tootsie Wilson then made us cook and eat the parrots so they didn’t go to waste. We were taught that you do not shoot animals for the fun of it.

450    Mark Champion was taught by his uncle Clem Donaldson about the two seasons which are called kunkunpi. One season is April / May to September / October, which was the season his old ancestors used to hunt the grey kangaroo (kulbit) and that they did not hunt grey kangaroo outside of this season. The second season runs from around October / November to March / April the following year, which was the season the old ancestors hunted the rock wallaby (bigarrda). The changing of the seasons is marked by a smoky haze which descends over the land. Mark explained:

So the grey kangaroos were fattest during the cooler months of the year and the rock wallaby were fattest during the summer months.

451    Mark Champion identified other significant sites including a freshwater underground soak about 10 kilometres south of Kambalda. He deposed that this is a major site, an underground spring water source, and that he has concerns that mining companies might be using the water from this underground spring for their operations. Mark’s father also told him about other sites on Kalgoorlie Road near Kambalda.

452    Mark Champion said that he has seen artwork in caves in the north of the trial area out from Mukinbudin. The caves are worn out of a big granite boulder to form a shelter from the wind.

453    Mark Champion said that he is also aware of ochre sites, including one near Kalgoorlie, about five kilometres south of the town, on Kambalda Road. This site is near where the millika bird Dreaming is located.

454    Mark Champion said that he continues to work with his father, Brian Champion Snr, to negotiate with the State Government to create a national park in the centre of the country:

…we don’t want mining activity to occur in that area, it is a beautiful spot and many other people agree with this proposition.

455    Mark Champion said that he is also working with the Western Australian Department of Biodiversity, Conservation and Attractions who are “looking at setting up ranger programs to look after our rock holes and sites on our country”.

Charles Stevan Champion

456    Charles Stevan Champion made a statement dated 1 September 2023, which was tendered in a revised form on 5 October 2023. He gave evidence at the Kalgoorlie Town Hall on 5 October 2023 and was cross-examined.

457    Charles Champion’s residential address is in Boulder.

458    In his statement, Charles used the spelling ‘Gubrun’ for the word ‘Kapurn’.

459    I found Charles to be an honest witness. He was quietly spoken, and his demeanour was reserved and quiet. I accept his evidence.

Biographical background

460    Charles Champion was born in Merredin in 1963.

461    Charles’s father was Dave Champion. Charles said that his father always told him that he was Kapurn and that Kalgoorlie was part of Kapurn country. Charles’ father’s father was Kapurn man Ted Champion. Charles is Kapurn through his father.

462    Charles Champion’s mother was Miriam Champion (née Yarran), whom Charles described as a Ballardong woman. Charles is Ballardong through his mother. His mother was born on Ballardong country, outside Quairading / Badjaling / Yoting.

463    Charles has four children.

Kapurn country

464    Charles Champion said that his father taught him about the boundaries of Kapurn country. He was taught that the western boundary is near Walgoolan / Burracoppin, and that Mukinbudin, a town north-east of Walgoolan / Burracoppin, is also Kapurn country. He said that his father taught him about country around Mukinbudin, but that he does not spend much time there.

465    Charles Champion said he was taught that Kalgoorlie was in Kapurn country, and that he was told about a rock hole east of Kalgoorlie that identified the eastern boundary of Kapurn country.

Kapurn law and custom

466    Charles Champion said that rights in Kapurn country are obtained by descent, not marriage. For that reason, his mother is not a Kapurn woman. Charles said that being born on Kapurn country does not make someone a Kapurn person.

467    Charles said that Kapurn people are unable to give Kapurn country away (to other people).

468    As a Kapurn person, Charles said that he does not need permission to go hunting on Kapurn country.

469    When he was young, Charles was taught to respect elders. He was taught that he must not interrupt a group of adults who were talking.

470    Charles said that Kapurn people older than him (his father, uncles and older cousins) taught him how to butcher a kangaroo, and the rules that must be followed when hunting. Charles said that he was taught that “whatever you shoot, you gotta eat”, and that “everyone shares the meat”.

Wongai people

471    Charles Champion stated his belief that the names ‘Wongai’ and ‘Wongatha’ are general names for people who come from outside the trial area, from places like Wiluna, Warburton and Cundeelee. Charles believes that Wongai people are not Kapurn people and do not have rights in, and cannot speak for, Kapurn country (including Kalgoorlie and Coolgardie).

472    Charles contradicted evidence given by Victor Cooper to the effect that Charles had once told Victor that “the Champions were not from Kalgoorlie”. In that context, Charles said that his father always told him that he was Kapurn and that Kalgoorlie was part of Kapurn country.

473    Charles also expressed his belief that Victor Cooper’s family is Wongai, but he said that he had never heard of the “Bilberri tribe”.

Miriam Eva Champion

474    Miriam Eva Champion made a statement dated 3 September 2023 which was tendered in evidence. She gave evidence at the Kalgoorlie Town Hall on 6 October 2023, and was cross-examined. In the course of giving evidence, she was assisted by her son, Simon Champion, having regard to her advanced age and her hearing difficulties. Simon Champion relayed the questions asked to his mother, at times repeating verbatim the question put by counsel, and at times explaining the question further where she did not understand. Simon Champion discharged his role in assisting his mother with diligence and consideration, providing considerable assistance to his mother and to the Court.

475    At the time of giving evidence. Miriam Champion’s residential address was in Kalgoorlie.

476    Miriam died in October 2024.

477    I found Miriam to be an honest and direct witness, clear in her understanding of the questions asked and firm in her answers. I accept her evidence in full.

Biographical background

478    Miriam Champion (née Yarran) was born in 1934 at Badjaling Mission near Merredin. She was 89 years old at the time of giving evidence.

479    Miriam’s father was Clem Yarran, whom Miriam described as a Ballardong man. Miriam’s mother was Emily Garlett, whom Miriam described as a Ballardong woman. Miriam said that she was a Ballardong and Noongar woman.

480    Miriam Champion said that she eloped with her husband, Dave Champion, in 1956, when she was 21 years old. They lived in Southern Cross for a few years before moving to Kalgoorlie in the late 1950s to live on her husband’s land with his parents, Ted and Elsie Champion. Miriam said that they stayed there for one or two years. Miriam said that her husband, Dave, always said he was a Kapurn man. Her evidence-in-chief was as follows:

MR McAVOY: Did you and Dave Champion elope to get married?

MIRIAM CHAMPION: Yeah.

MR McAVOY: And where did you go once you got married?

MIRIAM CHAMPION: Well, he brought me back up here to Kalgoorlie to his land.

MR McAVOY: And who are his people?

MIRIAM CHAMPION: His people is the Champions.

MR McAVOY: And what tribe do they come from?

MIRIAM CHAMPION: Well, the Kapurn tribe is from Kalgoorlie.

481    Miriam Champion said that, during the time that she and her husband were living in Kalgoorlie:

… there was one law in Kalgoorlie, and it came under my father-in-law, Ted Champion. He was a tribal man, and the boss. Younger Kapurn men like Clem and Phil Donaldson were only too happy to talk with him.

When Spinifex families wanted to come to Kalgoorlie, they would send a runner to come and see my father-in-law, and the runner would tell him who was planning to come, when they were planning to come, and what they would be doing. I witnessed this myself. They has [sic] to get his permission. My father-in-law was always happy to give his approval.

Kapurn country

482    Miriam Champion said that Kalgoorlie, Southern Cross, Mukinbudin and Mount Jackson are all Kapurn country, but that Merredin is not.

Elizabeth Sambo

483    Miriam Champion said that she knew Elizabeth Sambo and she believed that Elizabeth Sambo’s mother (Linda Champion) was a Kapurn person. Linda Champion was a sister of Miriam’s husband, Dave Champion. Miriam said that she did not know if Lucy Sambo (Elizabeth Sambo’s father’s mother) was a Kapurn person.

Beatrice Winmar

484    Miriam Champion said that Reg Yarran Snr (the father of Reg Yarran Jnr and now deceased) was her cousin and they grew up together as part of the same community. Miriam also knew Reg Yarran Snr’s mother, Beatrice. Miriam said that she did not believe that Beatrice was a Kapurn person and that she had never seen her in Kapurn country. Miriam Champion said that she had met Beatrice’s mother, Julia Penny (whose Aboriginal name was Dunniyan), but Miriam did not believe that she was a Kapurn person, and that she was never at Southern Cross or Coolgardie when Miriam was there.

Wongai people

485    Miriam Champion expressed her belief that the Cooper family are not traditional owners of Kalgoorlie and stated that she had never heard of an Indigenous people called the “Bilberri tribe”.

Simon Hayley Champion

486    Simon Hayley Champion made a statement dated 3 September 2023 which was tendered in evidence, and gave evidence at the Kalgoorlie Town Hall on 6 October 2023 and at a site on the outskirts of Kalgoorlie identified as the Koorara rock hole. He was cross-examined on both occasions.

487    Simon Champion’s residential address is in Perth.

488    I found Simon Hayley Champion to be an honest witness, who answered the questions put to him directly and fully. I accept his evidence.

Biographical background

489    Simon Champion was born in Kellerberrin in 1964. His father was Dave Champion, whom Simon described as a Kapurn man. His mother was Miriam Champion (née Yarran), whom Simon described as a Ballardong and Noongar woman. Simon describes himself as a Kapurn man.

490    Simon Champion said that he and his siblings were born in different places (including in places outside Kapurn country) because their father moved around for work. He said that was why some people thought that the Champion family were from the Wheatbelt Region.

491    Simon Champion’s paternal grandfather was Ted Champion. Simon said that his father told him many stories about Ted Champion’s status as a senior law boss for the Kalgoorlie / Coolgardie area and about how neighbouring groups to the east would seek him out to resolve disputes, or how he would be asked to deal with problems in Kalgoorlie. Simon said that Phil Donaldson (whom Simon referred to as Uncle Phil) told him that it was Ted Champion’s brother, Jack Champion, who put Phil Donaldson through “the rules” (which I understood to be a reference to initiation ceremonies, often referred to in the evidence as “the law”). Simon Champion said that Phil Donaldson was a lawman.

Kapurn laws and customs

492    Simon Champion gave evidence in relation to how a person becomes Kapurn. He said that he was Kapurn even though he was born in Kellerberrin, which is outside of Kapurn country.

493    Simon Champion said that he went on hunting trips with his father when he was growing up. He would go on these trips every weekend or fortnight in the Kalgoorlie area, along with his brothers. They would hunt for kangaroos and sometimes emus. Simon explained that, when preparing a kangaroo for eating, they would hang the animal up from a tree by the leg. This would allow them to skin the animal and drain the blood from it. Simon Champion said that this task was usually done by his father (Dave), his brother (George) or himself. The kangaroo would then be cooked in a frypan, on the ashes or in a camp oven. Simon’s father would always be given the best parts of the kangaroo, such as the tail, the kidneys, the liver or the ribs.

494    Simon also referred to other kinds of foods that his father used to catch and eat while hunting:

I used to watch him do kangaroo, never really did the porcupine. Dad used to do it with goannas, small birds, yeah, parrots and that, yeah. Wild turkeys. But dad used to say to us if you see the black caterpillar and the wild turkey is there somewhere close, and when you see it you get that too.

495    Simon noted that they would never take too much when they were hunting. When there was left over food, it would be brought back to town and shared with the families.

496    Simon said that he still goes out hunting with his brothers, often for a weekend or sometimes longer if it is a good place.

497    Simon said that he went out to sacred sites on Kapurn country with his father, Dave Champion. He recounted that, on a few occasions, he drove his father, Uncle Kingy (Clem Donaldson) and Uncle Phil (Phil Donaldson) out to the sites so that the men could visit and inspect the sites. Simon said that he would never interfere when they were at a site or talking about a site.

Evidence given at Koorara rock hole

498    Simon Champion gave evidence at Koorara rock hole, south-east of Kalgoorlie. He said that he used to come to the rock hole often with his family to go shooting and at other times they came to clean out the rock hole. The rock hole descends back into the hill and is always full of water.

499    Simon Champion recounted a story that occurred in the 1990s, when he was required to drive his father, Dave Champion, out to Koorara rock hole for a meeting with several other senior men, including Uncle Kingy (Clem Donaldson), Phil Donaldson, and the Sinclair brothers. Simon referred to the Sinclair brothers as Uncle Bob and Uncle Robert. Given that Bob is a diminutive for Robert, it is likely that Simon misspoke. Other evidence indicates that the name of one of the Sinclair brothers was Don. The Sinclair brothers were not Kapurn; they came from a place called Cundeelee, approximately 160 kilometres east of Kalgoorlie, outside the trial area. Simon Champion said that Cundeelee is not Kapurn country. Also in attendance was Daryl Kickett. Simon believes that, at that time, Daryl Kickett worked for a government department concerning Aboriginal people, most likely the Department of Indigenous Affairs.

500    Simon Champion said that he was present for a conversation between the men at the rock hole. He did not participate in the conversation, as they were all much more senior to him. Simon remembered Daryl Kickett asking the men where they lived and where the boundaries of the country were. During the conversation, the Sinclair brothers recounted a practice that used to happen when Ted Champion was alive:

[The Sinclair brothers] said years ago when they used to come here, they used to send a runner in and ask old Mr Champion – Ted Champion – if they can come in[to] town to do shopping. And the answer was always 100 per cent. Yes, definitely come. But at that time, they – not only two blokes came – the whole tribe came – and they camped here somewhere [near Koorara rock hole]. And when the government people come – that whole tribe used to come here too. There was a corroboree down here somewhere [near Koorara rock hole].

501    Simon Champion explained that the runner came to ask permission from Ted Champion before bringing people onto country, such as other members of the tribe or people from the government, as a matter of respect.

502    Simon Champion also gave evidence about the Koorara rock hole. He noted it was also called ‘Koorara waterhole’ and ‘Koorara waterfall’ because, when it rains, the water comes over and it looks like a waterfall. He said that there were kangaroo and emu footprints in the mud around the water.

Wongai people

503    Simon Champion expressed his belief that the Cooper family are not traditional owners of Kalgoorlie and stated that he has never heard of an Indigenous people called the “Bilberri tribe”.

Darryl Alan Trott

504    Darryl Alan Trott made a statement dated 27 July 2023, which was tendered in evidence, and he gave evidence at the Kalgoorlie Town Hall on 6 October 2023 and was cross-examined.

505    Darryl Trott currently resides in Perth.

506    I found Darryl Trott to be an honest witness, who answered the questions asked of him in a direct and straightforward manner. I accept his evidence.

Biographical background

507    Darryl Trott was born in Esperance in 1964. His mother is Shirley Ann Trott (née Sambo) and his father was Martin Trott. He has seven siblings: Linda, Elaine, Thomas, Joanne, Billy, Troy and Martin.

508    Darryl Trott said that he is Kapurn because he is the eldest grandson of William Sambo and Linda Champion. Darryl said that his mother, Shirley, is the oldest living member of the Sambo family. Shirley is the elder sister of Elizabeth Sambo. Darryl said that his mother was born in Southern Cross and calls herself Kapurn. Darryl said that his children are Kapurn through him, although some of them also belong to other clans.

509    Darryl Trott’s father was born at Mount Margaret Mission and was Wongai. Darryl said that his father passed away about 25 years ago. Darryl’s father’s father was William Trott, who was a Mirning man, and Darryl’s father’s mother was Elizabeth Lynch, a Wongai woman.

510    Darryl Trott lived in Esperance until he was in around the second grade. He then lived in Kalgoorlie for about a year, when he was sent to the Norseman Mission because his parents separated. Darryl said that all but two of his siblings were sent to the Norseman Mission. Darryl spent five or six years at the mission, which he left just before starting high school. He moved to Kalgoorlie to live with his mother and his siblings, and went to high school in Kalgoorlie. Darryl said that, while in Kalgoorlie, he sometimes lived with his grandmother, Linda Champion.

511    Darryl Trott said that, in about 1978 or 1979, he moved to South Australia with his family, where he completed his fourth year of high school in Port Lincoln. Straight after high school, Darryl worked at the meat works in Port Lincoln for about six months.

512    In 1988, Darryl Trott married Elizabeth Trott (née Johns), a Noongar woman. After they married, they went to live in Kalgoorlie where Darryl worked in various jobs, including as a truck driver. In 1989, Darryl was in Merredin, then he moved back to Kalgoorlie for 5 years, then to Esperance for 5 years, then back to Kalgoorlie for 10 years, and then relocated to Perth. Darryl has been living in Perth for around 15 years.

513    Darryl Trott and Elizabeth Trott have 6 children (Kristy, Peter, Alan, Sharon, Breeanna and Wesley) and 22 grandchildren. Darryl noted that three of his grandchildren lived with him and his wife from when they were very young.

514    Darryl said that he goes back to Kalgoorlie continuously for weddings, funerals and holidays and, since the commencement of the Marlinyu Ghoorlie proceeding, for Marlinyu Ghoorlie claim matters. He takes his grandchildren back to Kalgoorlie, where they go out into the bush to go camping and hunting.

515    Darryl Trott said that his maternal grandfather, William Sambo, was the main person who taught him when growing up. He said that William Sambo grew up in Southern Cross and was a shearer there and always lived out in the bush by himself. Darryl said that, in his later life, William Sambo lived at a place called Carbine, north of Kalgoorlie, in a shack on a station, and after that ended up living in Coolgardie. Darryl was in his late 30s when William Sambo died.

516    Darryl Trott recounted his experiences learning from William Sambo. William Sambo used to take him, his brothers and his cousins out bush frequently. William Sambo taught Darryl, his brothers and his cousins not to go to certain places because they had not been initiated. Darryl said that he knew that, if he went to those places, he would be punished by one of the old men who had been through the law. Darryl said that he had hunting spots that he kept going back to with William Sambo. He said that they would go out hunting “all the time”, with a ute, guns and spotlights. They would shoot kangaroos and goats, and then clean them, cook them and eat them. Darryl said that William Sambo would share the meat out to whoever wanted it. Darryl said that he also learned to hunt from his Uncle Richard Sambo. Darryl recounted that he went hunting with Richard Sambo towards the Hampton Hill Station and out to Jaurdi flats near Coolgardie.

Claim group identifying names and members

517    As noted above, Darryl Trott is a Kapurn person because he is the eldest grandson of William Sambo and Linda Champion. In his witness statement, Darryl said that he is Kapurn through his mother, who is Kapurn through her mother (Linda Champion). In oral testimony, Darryl also said that his mother is Kapurn through her father, William Sambo. Darryl said that, when he was growing up, he never heard the words ‘Karlamaya’ or ‘Karlaku’. He said that he does not know what the language for the Kapurn people is called.

518    Darryl Trott said that the Champions, the Sambos and the Dimer / Donaldsons are the right families for the trial area. He considers all of them to be Kapurn. He said that the Champion family have always been in Kalgoorlie.

Kapurn country

519    Darryl Trott said that his mother told him that “our land” extended from Mukinbudin to Kalgoorlie. Darryl said that he does not know where the northern and eastern boundaries of Kapurn country are, but noted that Leonora is part of his father’s country. Darryl said that he does not feel like he is from Perth and that as soon as he gets to Southern Cross, he knows that he is back on his own land. He noted that he does not have that same feeling in Merredin as it is not his country.

Kapurn laws and customs

520    In relation to how rights in land are obtained in Kapurn culture, Darryl Trott said that to be Kapurn, you have to be born into a Kapurn family and that you must have an ancestor who is Kapurn. Darryl also said that, if a person was adopted into a Kapurn family, the Kapurn people would claim them “as our own”. Darryl said that a person who is adopted can go out on Kapurn country and do all the same things as everyone else. Darryl gave the example of his step-daughter:

For example, my oldest daughter Kristy is my step-daughter but I claim her as my own… [M]y step daughter can go out on surveys and do what she likes in Kalgoorlie. Everyone knows who she is and identifies her as my daughter.

521    Darryl Trott said that the location of a person’s birth, or where they live, does not affect whether they are Kapurn. Darryl said that he was born in Esperance but he is nonetheless connected to the land in Kalgoorlie because he is Kapurn.

522    Darryl Trott said that a person does not become Kapurn just because he or she marries a Kapurn person. Kapurn people do not count in-laws as Kapurn.

523    Darryl Trott said that Kapurn people cannot give Kapurn country away to other people.

524    In relation to speaking for country, Darryl Trott said that he could only speak for Kapurn country. He said that he had been asked to do cross-cultural training in Perth, but refused to do it as he was not from Noongar country. He said that he would be able to do cross-cultural training if it was in Kalgoorlie. Darryl said that Uncle Brian Champion Snr is the main person who can speak for country in Kalgoorlie, but that there are also others.

525    Darryl Trott said that his grandfather did not teach him about “dreamings” as he kept them to himself.

526    In relation to access to sacred sites and country, Darryl Trott said that Noongar people and Wongai people are not allowed to do ceremonies on Kapurn country. Darryl said that Noongar people are not permitted to speak for country in Kalgoorlie in the same way that he cannot speak for country in Karratha. However, Darryl noted that if a Noongar person wanted to go hunting in Southern Cross, they could do that. He said that kangaroos are travellers and that it was permissible to chase your food around. The same principle applies to other bush food like quandongs.

527    In relation to men’s law business, Darryl Trott said that Kapurn people no longer go through the law.

Looking after country

528    Darryl Trott said that all Kapurn people look after the country together. Darryl says that, whenever he goes out into the bush, he takes a big plastic bag so everything he takes into the bush, he takes out of the bush. Darryl does Aboriginal heritage surveys because it is important that sites are identified so that they can be protected from mining and “to show our children and grandchildren their country”.

Hunting, gathering and use of resources

529    Darryl Trott said that Kapurn people are allowed to go out hunting and camping anywhere in Kapurn country. Darryl believes that he can go anywhere in Kapurn country and does not need to ask permission from another Kapurn person. However, he would not enter a sacred site on Kapurn country that was only for initiated men.

530    Darryl Trott said that he takes his family out to show them Kapurn country, including his grandparents and his grandchildren. Darryl said that they look for quandongs and silky pears and he teaches his grandchildren to identify them. Darryl said that he regularly goes to Kalgoorlie with his grandchildren and takes them out into the bush:

I took my grandsons out hunting for the first time 3 years ago in the bush around Kalgoorlie. You have to go 40-50km out of Kalgoorlie to find kangaroos now as they are scared about coming too close to the town as the young boys chase them on their motorbikes.

531    Darryl Trott said that when he hunts kangaroos, he only chases the red and blue kangaroos. The blue kangaroos are smaller, like rock wallabies. Darryl said that he does not shoot the grey kangaroos as the meat is not good.

532    Darryl Trott said that he sometimes hunts bungarras (goannas). He said that he either shoots them or catches them by throwing a stick at them to knock them out of trees.

533    Darryl Trott said that his grandfather, William Sambo, would clean and cut the kangaroos and then cook them and all the food was shared around.

Wongai / Western Desert people

534    Darryl Trott said that the Wongai people or the “Desert people” do not have any rights in Kalgoorlie.

Leeroy Wade Bilney

535    Leeroy Wade Bilney made a written statement of evidence dated 31 August 2023, which was tendered in evidence. Mr Bilney also gave evidence at the Kalgoorlie Town Hall on 3 October 2023 and was cross-examined.

536    Leeroy Bilney currently resides in Ceduna, South Australia.

537    I found Leeroy Bilney to be an honest and careful witness. I accept his evidence.

Biographical background

538    Leeroy Bilney was born in Port Lincoln in South Australia in 1983. His mother is Jacqueline Shep Bilney (née Champion), and his father is Malcolm David Bilney Snr.

539    Leeroy’s mother was born in Kalgoorlie and is the eldest daughter of Malcolm Ben Champion, who was the son of Ted Champion and Elsie Nelson-Riley. Leeroy says that he is Kapurn through his maternal grandfather, Malcolm Ben Champion.

540    Leeroy’s father is a Wirangu, Kokatha and Barngarla man.

541    Leeroy has six siblings, including an older brother and sister, both of whom were born in Kalgoorlie: Rosemary Joyce Edwards (née Bilney), born in Kalgoorlie in 1973; and Malcolm Oswald James Bilney Jnr, born in Kalgoorlie in 1975.

542    Leeroy said that, when he was about 11 years old, his family moved from Port Lincoln to the Tia Tuckia Aboriginal Community which is an Aboriginal homeland about 30 kilometres out of Ceduna. From when he was 15 or 16 years old, he lived with his maternal grandfather, Macolm Ben Champion (whom he called “Poppa”), and his maternal grandmother, Mary Constance Reynolds (whom he called “Nana”) also at the Tia Tucker Aboriginal Community for a period of four years.

543    Leeroy Bilney stated that he frequently travelled to Kalgoorlie with his grandparents to attend funerals and family events. He said that, on those trips, his grandfather visited most, if not all, of his brothers and sisters who were in Kalgoorlie, and their children. He said that his grandfather used to talk about what Leeroy now understands to be Kapurn country each time they visited Kalgoorlie and other places through to Southern Cross.

544    When Leeroy was 19 years old, he moved to Perth to study at the Western Australian Academy of Performing Arts at Edith Cowan University. When he was 22, he moved from Perth to Sydney to study at NAISDA Dance College. He lived in Sydney for three years, working odd jobs, until he obtained a position as Administration Officer at the National Native Title Tribunal. In around 2008, he returned to Ceduna and has since lived there with his partner and four children.

Cultural heritage survey in 1998

545    The principal subject of Leeroy Bilney’s evidence concerned a trip taken to Southern Cross by Leeroy when he was about 15 years old (about 1998) with his maternal grandparents, Malcolm Ben Champion and Mary Constance Reynolds, together with Reginald Yarran Snr, Glenys Yarran and Reginald Yarran Jnr. Leeroy recalled that they drove together in a bus and that the Yarrans were undertaking a cultural heritage site survey. The trip took place at a time when the Ballardong claim included the western part of the trial area including Southern Cross. Leeroy was uncertain of the precise purpose of the survey, but believed it concerned the creation of a new road.

546    Leeroy Bilney explained that he had lived for approximately one year with Reginald Yarran Snr, his wife Glenys Yarran, and their son Reginald Yarran Jnr, when Leeroy went to study in Perth. Leeroy said that his family and the Yarrans were very close, and that the connection between their two families arose through Leeroy’s maternal great-grandmother (Malcolm Ben Champion’s mother, Elsie Nelson Riley), who was a Ballardong woman.

547    Leeroy stated that, throughout the cultural heritage trip, both Reginald Yarran Snr and Glenys Yarran asked Leeroy’s grandfather, Malcolm Ben Champion, lots of questions in relation to the area, including about particular sites, to which Malcolm Ben Champion initially responded. For example, the Yarrans asked his grandfather a question about where the “reserve/mission” at Southern Cross used to be located, having “read in a book” that it was located in a particular place. In cross-examination, Leeroy said that he could not recall which of Reginald Yarran Snr and Glenys Yarran asked about the location of the reserve or mission, but he recalled that it was Glenys Yarran who said that she had read about it in a book. Leeroy said that his grandfather corrected them, saying that he knew where the reserve was because he used to live there, and took the group, including Leeroy, to the site, where Leeroy recalled seeing the remnants of old tin bathtubs and other things which indicated that people used to live there. Leeroy also gave evidence that his grandfather identified burial grounds and ceremony places in the area around the site being surveyed in response to questions from Reginald Yarran Snr and Glenys Yarran.

548    Leeroy Bilney stated that he remembered thinking at the time that his grandfather “knew so much” about the Southern Cross area, and the country’s history, whereas by contrast Reginald Yarran Snr did not know “much at all”. Leeroy further stated that, from the way his grandfather behaved during the trip, he (Leeroy) formed the impression that his grandfather was “happy to be in his country” and to share information about it.

549    Mr Bilney said that, during the trip, his grandmother said something to his grandfather in language that only they could speak, after which his grandfather began to respond differently to the questions being asked by the Yarrans. Leeroy said that while his grandfather continued to answer the questions being asked by the Yarrans, he gave vague answers and did not go into much detail. Leeroy said that he interpreted this as meaning that some information was not meant to be shared.

550    Each of Reg Yarran Jnr and Glenys Yarran gave evidence about the cultural heritage survey trip. Their evidence differed from Mr Bilney’s account in two principal respects.

551    First, Glenys Yarran said, on the trip, she did not as ask questions of Malcolm Ben Champion because it would have been culturally inappropriate for her to have questioned men about country to which she had no connection. As noted above, in cross-examination Leeroy Bilney acknowledged that he could not be certain that Glenys Yarran asked questions of his grandfather, but he did remember that one or other of Reginald Yarran Snr, Glenys Yarran and Reginald Yarran Jnr asked the questions to which his grandfather responded.

552    Second, Reg Yarran Jnr said that the trip was conducted in the presence of an anthropologist, and that it was the anthropologist who asked the questions of both Malcolm Ben Champion and Reg Yarran Snr. In cross-examination, Mr Bilney disagreed with that account. He was firm in his recollection that the Yarrans questioned his grandfather about the location of significant sites.

553    I consider that the evidence given by Leeroy Bilney is generally reliable. Leeroy made appropriate concessions in cross-examination. He accepted in cross-examination that he was young when the trip occurred and that his recollection of the trip was unclear in certain respects. For example, he was not aware of the precise purpose of the survey being undertaken or the particular sites being surveyed. However, he was clear about the events referred to in his evidence. The evidence given by Glenys Yarran, that she did not personally question Malcolm Champion, did not materially undermine Mr Bilney’s evidence that the Yarrans were seeking information from Malcolm Ben Champion about the Southern Cross area. As discussed below, I consider that Reg Yarran Jnr was generally an unreliable witness, and I place no weight on his evidence unless it is corroborated by a reliable source.

Sean Williamson

554    Sean Williamson is Pitjantjatjara, and his first language is the Pitjantjatjara language. Mr Williamson made a statement dated 18 July 2023. However, the statement was not tendered in evidence. Rather, Mr Williamson’s evidence was led orally at the Kalgoorlie Town Hall on 3 October 2023 with the assistance of a Pitjantjatjara interpreter, and he was cross-examined.

555    In his examination-in-chief, parts of Mr Williamson’s statement were read to him, and he was asked to indicate whether he agreed or disagreed with the relevant part. Mr Williamson’s statement was marked for identification solely to assist in understanding his oral testimony. The process of giving evidence with the aid of an interpreter was not always straightforward. In general, questions were asked of Mr Williamson in English and translated into Pitjantjatjara. At times, Mr Williamson answered directly in English and, at other times, he responded in Pitjantjatjara and his response was translated into English. It was apparent that the interpreter sought to assist Mr Williamson and the Court as best she could. Nonetheless, I gained the impression that, on some occasions, there was confusion as to the questions asked of, and the answers given by, Mr Williamson. I do not doubt that Mr Williamson was an honest witness. However, I have treated aspects of his evidence with caution having regard to the difficulties in translation encountered during his testimony.

556    There was also some ambiguity with respect to the spelling of Mr Williamson’s first name and his use of an alternative name. The name ‘Shaun Williamson’ was typed on his statement, but the statement appeared to be signed ‘Sean Williams’. The annexure to the statement appeared to be signed ‘Shaun Williams’. During cross-examination, Mr Williamson said that the true spelling for his name is ‘Sean’. However, he also said that he has two names, the other name being Bruce Williams. In light of Mr Williamson’s evidence, these reasons use the name “Sean Williamson”.

Biographical background

557    Mr Williamson was born in the Anangu Pitjantjatjara Yankunytjatjara (APY) lands in 1952, and currently resides in the Yalata Aboriginal Community in South Australia.

558    Mr Williamson is an initiated man, having been through Pitjantjatjara law on the APY lands when he was approximately 18 years old.

559    Mr Williamson moved to Laverton in the 1970s, working for the police force as a police aid / community constable. He identified Laverton as Nganyanyatjarra country (which I infer is an alternative spelling for ‘Ngaanyatjarra’). Mr Williamson said that the main Nganyanyatjarra families at that time were the Frasers and the Simms, and he married a woman from one of the Simms family (who is now deceased). Mr Williamson has five children who live in Warburton.

560    Mr Williamson said that the old Nganyanyatjarra and Anangu people showed him around their country and where their boundaries were. When asked about the precise location of these boundaries during examination-in-chief, Mr Williamson did not identify them with precision. However, he stated that Laverton, Warburton and Leonora (being towns located to the north-east of the trial area) are Nganyanyatjarra country. He further stated that Kalgoorlie is different country which belongs to another tribe, although Mr Williamson did not at that point identify the name of that tribe.

Malcolm Ben Champion

561    Mr Williamson gave evidence about Malcolm Ben Champion, whom Mr Williamson referred to as “Ben Champion”. Mr Williamson said that he knew Ben Champion very well. They travelled together to many places, including for law business, to Wiluna, Warburton, into APY land and elsewhere in South Australia.

562    Mr Williamson said that Ben Champion had told him that he (Ben Champion) was a Kapurn man. Mr Williamson said that Ben Champion’s country was in Southern Cross. When asked whether Ben Champion’s country was also in Kalgoorlie, Mr Williamson agreed, saying “yes, must be”.

563    Mr Williamson also said that Ben Champion was very well known among the law men in Warburton and Laverton, including an individual called Albert Fox who became one of the law bosses for Warburton. Mr Fox was raised by Ben Champion’s father and grew up in Kapurn country (being Kalgoorlie and Coolgardie), before moving back to Warburton. Mr Williamson said he was told this by Mr Fox.

564    Mr Williamson was shown a copy of his statement which contains a photograph of an Aboriginal man and woman. While Mr Williamson’s statement identifies the man in the photograph as (Malcolm) Ben Champion, Mr Williamson identified the man as (Malcolm) Ben Champion’s older brother (although he could not remember his first name). When asked about why his statement said that the man in the photograph was (Malcolm) Ben Champion, Mr Williamson said that someone else (other than him) must have incorrectly written the name.

565    The man in the photograph had a bare chest which had markings. In cross-examination, Mr Williamson said that the markings indicated that the man in the photograph had been initiated, and said that the markings were from “his [the man’s] country here”. When asked to clarify the country to which Mr Williamson was referring, he explained that it was “Coolgardie way” and that it included Kalgoorlie and Southern Cross. Mr Williamson made clear that these places are not his own country. Mr Williamson agreed that Kapurn law is different to the law of his country, but said that the laws “come together”. I understood Mr Williamson to be referring to ceremonies being conducted under both laws.

Kapurn country

566    During the course of his evidence, Mr Williamson said on many occasions that Kalgoorlie, Coolgardie and Southern Cross are all Kapurn country.

567    However, when asked whether Kalgoorlie is “anybody else’s country”, Mr Williamson said (through his interpreter) that it was “everybody’s country”, and that Coolgardie was the same. When asked what “everybody’s country” meant, the following exchange occurred:

MR SHARPE:    And when you say “everybody’s country”, who do you mean by everybody?

SEAN WILLIAMSON: Old people they was living there together.

INTERPRETER: The old people in those days were all living together.

MR SHARPE: Old people from where?

SEAN WILLIAMSON: From here. From here.

INTERPRETER: From here. All around here.

MR SHARPE: When you say “all around here”, do you mean Anangu people as well?

INTERPRETER: Yes, Anangu meaning it’s every Aboriginal person’s place. Anangu is meaning Aboriginal people, you know, lots of people. And he’s saying that they all lived here.

…

MR SHARPE: Is Kalgoorlie also a country of Pitjantjatjara people?

INTERPRETER: No.

SEAN WILLIAMSON: Pitjantjatjara other side of Warburton.

MR SHARPE: So Aboriginal people from Laverton, is this their country, Kalgoorlie?

INTERPRETER: Yes, they’re all mixed up here. They mixed up here. So what he’s saying, sir, is that it wasn’t just the Kaparn, it wasn’t just the Anangu, it was just the Pitjantjatjara; it was everybody live here, everybody.

568    The difficulties of interpretation are apparent from this exchange. In particular, and as I observed during the hearing, there is real uncertainty as to the meaning of the word ‘Anangu’ in this context (which means Aboriginal people in the Pitjantjatjara language). Mr Williamson’s evidence during this exchange is capable of being understood in several different ways: it is unclear whether he was speaking about the time before or after the arrival of Europeans, and whether he was speaking about Aboriginal people visiting Kalgoorlie for ceremonial purposes or having rights in the country. Given the uncertainty about this aspect of his evidence, I place no weight on it.

Speaking for country

569    Mr Williamson said that, although he holds detailed knowledge regarding special places in Kapurn country, that does not mean that he can “step in and be the boss”. Mr Williamson said: “I got no right to talk over their place”. Mr Williamson agreed that a person could not acquire rights in Kapurn country by living in Kapurn country, even if they had been there for two or three generations.

570    In cross-examination, Mr Williamson said that he remembered seeing a law boss around Coolgardie and Kalgoorlie who had the name Donaldson. When asked what “speaking for country” means, Mr Williamson gave evidence to the effect that it means speaking for his country, his sacred sites and looking after country. Although there was some difficulty of interpretation in relation to the question asked and the answer given, Mr Williamson said that an Aboriginal person can only speak for their country, not for any country. When asked whether Mr Williamson could speak for the country around Kalgoorlie and Coolgardie, I understood Mr Williamson to give a negative answer, which was (as translated): “That is their home. They have to speak for. We can’t talk about that”. Mr Williamson asserted, however, that (Malcolm) Ben Champion could speak for Coolgardie, Kalgoorlie and Southern Cross.

Dr Noel Gregory Nannup

571    Noel Gregory Nannup made a statement dated 21 September 2023, which was tendered in evidence, and he gave evidence at the Kalgoorlie Town Hall on 3 October 2023 and was cross-examined.

572    Dr Nannup currently resides in Perth.

573    I found Dr Nannup to be an honest witness. I accept Dr Nannup’s evidence in relation to his conversations with elders about the boundaries of Kapurn country, and his discussions and meetings with Malcolm Edward Champion and Brian Champion Snr. However, the weight that I give to the evidence is reduced by reason of the fact that Dr Nannup learned about Kapurn country from Noongar men, and Dr Nannup gave only limited evidence with respect to those men.

Biographical background

574    Dr Nannup was born in Geraldton, Western Australia, in 1948. Dr Nannup’s mother is a Ngarluma / Yindjibarndi woman from Iramugadu (Roebourne) and his father was a Bibbulman (Noongar) man born at Mundaring (west of Perth).

575    Dr Nannup grew up in Geraldton until he was 16 years old. He left school and went to work when he was 14, and left Geraldton two years after that. He worked all over Western Australia over the next 25 years or so. For about 30 years from 1978, Dr Nannup worked for the Western Australia Department of Conservation and Land Management (CALM), initially as a ranger. From 1989-1991, Dr Nannup studied Aboriginal Cultural Heritage Management in Belconnen at the Canberra College of Advanced Education (which in 1990 became the University of Canberra). Dr Nannup graduated with an Associate Diploma of Applied Science. After graduating, Dr Nannup returned to CALM and became a cultural heritage officer. In that capacity, Dr Nannup started doing work mapping songlines. The Department of Main Roads commissioned Dr Nannup to map “primary” songlines (ones which connect one country to the next country) from the south-west of Western Australia all the way up to Murujuga in the Pilbara.

576    Dr Nannup was Elder-In-Residence at Edith Cowan University from approximately 2010-2019. His job was to develop cultural protocols for the university and to give advice to the Pro Vice-Chancellor for Equity and Diversity. Dr Nannup was selected as NAIDOC’s Male Elder of the Year in or about 2017. He holds honorary PhDs from the University of Western Australia and Murdoch University.

577    Dr Nannup currently works as a Cultural Heritage Educator.

Kapurn country

578    Dr Nannup said that he was given a cultural mentor as a teenager growing up in Geraldton, a man called Clarrie Cameron (who is now deceased). Mr Cameron was a fluent Yamatji speaker and a knowledgeable man. Dr Nannup does not know what clan Mr Cameron belonged to, although he confirmed in cross-examination that Mr Cameron was not a Kapurn person. Mr Cameron told Dr Nannup about the country of different Aboriginal groups. Relevantly, Mr Cameron told Dr Nannup that the Kapurn’s north-western boundary was just to the south of Lake Moore, running to the east of Lake Moore, down south to the west of Beacon and then up to Bibbulman country at a big white rock just north of Trayning. Dr Nannup also said that Mr Cameron took him to Lake Moore in 1969 when Dr Nannup was 21 years old.

579    Dr Nannup said that, while he was working for CALM in Narrogin, Dr Nannup sat and spoke to one of the knowledgeable elders there at that time, Bibbulman man Aubrey Hayden. Mr Hayden told Dr Nannup that Mukinbudin was in Kapurn country and that there is a big songline that comes into Mukinbudin, where there used to be law boards.

Meetings with Brian Champion Snr and Malcolm Edward Champion

580    Dr Nannup gave evidence that he first met Malcolm Edward Champion in the mid-2010s through his nephew, Wayne Nannup. Malcolm Edward Champion was then working as a cultural adviser at the South West Aboriginal Land and Sea Council, where Dr Nannup’s nephew was working as the Chief Executive Officer at that time. Dr Nannup recalled that he told Malcolm Champion that he had come across a large white rock just north of Trayning (which Dr Nannup understood to mark the boundary of Kapurn country), and Malcolm Champion told Dr Nannup at that time that he was Kapurn through his father, Malcolm Ben Champion.

581    Dr Nannup said that, a few years ago, Malcolm Edward Champion contacted him and invited him to meet with his uncle, Brian Champion Snr, in Kalgoorlie. Malcolm Champion had heard about the work Dr Nannup was doing to map songlines. Dr Nannup travelled to Kalgoorlie and met with Brian Champion Snr, Malcolm Edward Champion and other family members, including Brian Champion Snr’s younger brother, Tim Champion Snr (now deceased). Dr Nannup recalled that Brian Champion Snr and Malcolm Edward Champion showed him different sites in the Kalgoorlie / Coolgardie area and that they were adamant that this was part of their home country.

582    At the time of the meeting, Dr Nannup was mapping songlines in Noongar country. Dr Nannup said that the work being done by Brian Champion Snr on Kapurn songlines “dovetailed beautifully” with the work being done by Dr Nannup with Ballardong people. Dr Nannup said that the songline that really impressed him the most was the one that came from the east into Mukinbudin (in Kapurn country) and continued to a big white rock (north of Trayning), which was the Ballardong’s most eastern boundary. I understood from his evidence that Dr Nannup had learned of the songline from Brian Champion Snr. Dr Nannup said that Malcolm Champion also knew about the songline.

F.2    Evidence from deceased forebears of the Marlinyu Ghoorlie claimants

Introduction

583    In addition to the lay witness evidence described in the preceding sections, evidence was also received of statements made and information provided by forebears of the Marlinyu Ghoorlie claimants who were deceased at the time of trial. There were four principal sources for that evidence.

584    First, anthropologist Norman Tindale visited Kalgoorlie in 1966 and interviewed Don Roundhead, whom he had first met in 1939 at Southern Cross, and his wife Noona (also spelled Nuna) who belonged to a Western Desert group. Tindale tape-recorded a large portion of this interview, which was transcribed by L Barwick in 1999. A copy of the transcribed interview was adduced in evidence as an annexure to Nell Taylor’s first report.

585    Second, anthropologist Stuart Fisher conducted a series of video-recorded interviews in 1992 with forebears of the Marlinyu Ghoorlie claimants in the Kalgoorlie, Coolgardie and Merredin areas. The interviewees included Phil Donaldson, Clem Donaldson, William (Bill) Sambo and George Wilson, all of whom are deceased. Transcriptions of parts of the interviews were tendered in evidence. Transcriptions of other parts were included in Ms Taylor’s first report.

586    Third, Dr Fiona Powell conducted anthropological research and fieldwork between 1997-2000 in Western Australia’s Goldfields region with Aboriginal people asserting native title rights and interests in the trial area. During her fieldwork, Dr Powell recorded information from forebears of the Marlinyu Ghoorlie claimants who were deceased at the time of trial. Dr Powell gave evidence during the trial concerning the information she had recorded.

587    Fourth, Linda Champion (who died in 2011) swore three affidavits in the earlier Central West Goldfields native title claim, and gave oral testimony in the proceeding at a preservation evidence hearing in 2006. Those affidavits and the transcript of the oral testimony were tendered in evidence. Linda Champion was Brian Champion Snr’s older sister and was the mother of respondent Elizabeth Sambo.

Don Roundhead

588    Don Roundhead appears on Tindale’s genealogy sheet 73 recorded at Moore River on 26 April 1939 and revised at Southern Cross on 6 May 1939, and on Tindale’s genealogy sheet 117 recorded at Southern Cross on 6 May 1939. The genealogy sheets record that Don was 23 years old (and therefore born in 1916). Don’s mother is identified as Eva (with the notation “fb Ka:lamai”) and his father is identified as Tom Roundhead (with the notation “fb”). The notation “fb” is an abbreviation for “full blood”. The Marlinyu Ghoorlie claimants contend that Tom Roundhead’s father is Nyuumani, also known as King Billy, who in turn is the son of apical ancestors Warada and Kaddee. That contention is considered later in these reasons, where the contention is accepted. Tindale’s genealogy sheet 73 notes that Tom Roundhead died when Don was a young boy. Later in the reasons, it is accepted that Don was brought up by Tom’s younger brother, Frank Roundhead (whose Aboriginal name was Nyumarn). Don died in 1982, aged 65, in Kalgoorlie. His death certificate lists his place of birth as Coolgardie.

589    Don’s wife Noona also appears on Tindale’s genealogy sheet 73 recorded at Moore River on 26 April 1939 and revised at Southern Cross on 6 May 1939 where she is recorded as born in Laverton, and on Tindale’s genealogy sheet 156 recorded at Mount Margaret on 13 May 1939 where her Aboriginal name is given as Danin and her tribal name is given as Tjalkadjara. Noona died in 1971, aged 63.

590    Native welfare records from 1937 track Don and Noona’s movements across the trial area. In 1937, Don (aged 21) and Noona (aged 31) were in the western extents of the trial area at Mukinbudin on the property of George Clamp. In 1938, Don was reported at Southern Cross and Bullfinch (on a fencing contract), then in Badjaling and again in Southern Cross. In 1939, Don was at Clarkson’s Mount Jackson Station and the Aboriginal Reserve in Southern Cross. In 1940, Don was on the Coolgardie Native Reserve, then again in Southern Cross. By 1941, Don and Noona were at Nungarin and Dandanning camps on the western extents of the trial area. Don was in Southern Cross again in 1943 and the following year he was employed on Credo Station in the eastern part of the trial area.

591    As noted above, Tindale visited Kalgoorlie in 1966 and interviewed Don Roundhead and his wife Noona. The entire transcript of the interview was annexed to Ms Taylor’s report. Both Ms Taylor and Mr Wood extracted substantial sections of the transcript in their anthropological reports. The interview is significant evidence, having regard to the date that it was recorded. The following extracts contain information relevant to the proceeding. The speakers are indicated by their initials: NBT (Norman B Tindale); DR (Don Roundhead); and NR (Noona Roundhead).

592    In the first extract, Don Roundhead identifies his language as Kapurn:

NBT:     Do you know the name of the language of your people Don?

DR:     in Kalgoorlie district?

NBT:     well firstly in Southern Cross

DR:     they all got one, one lingo

NBT:     And what language was that?

DR:     We call it Kapurn, Kapurn.

NBT:     Kabul

DR:     Kapurn, that’s all my …

NBT:     say it, say it again?

DR:     Kapurn

NBT:     Kabul

DR:     yeah

NBT:     And that Kabul, ah yes, how far does the Kabul run?

DR:     Kapurn run from Southern Cross to Kalgoorlie.

593    As observed by Mr Wood in his report, it is apparent from the above extract that Don Roundhead made two attempts to correct Tindale’s mispronunciation of the word ‘Kapurn’, which Tindale pronounced as ‘Kabul’, but then gave up on those attempts.

594    In a second extract, Don Roundhead explains that the word ‘Kapurn’ means ‘man’. Tindale then asks Don Roundhead about the word ‘Karlamaya’, and Don Roundhead explains that it was an older word for the same language, and that ‘Karlaku’ is an alternative word for ‘Karlamaya’:

NBT:     … I’ll ask you some questions another way. Have you ever heard of people they call Kalaamay, Kalaamay

DR:     Karlamaya

NBT:     Kalamaya. Kalamaya

DR:     Karla, Karlamaya, yes

NBT:     what do you know about the Kalamaya?

DR:     Karlamaya, Karlamaya. That’s belong to the early days at Coolgardie to Kalgoorlie and our generations of old grandfather word. They call em Karlamaya, that’s their old lingo.

NBT:     That’s their old lingo

DR:     old grandfather’s, father’s run, they call em Karlamaya.

NBT:     Karlamaya

DR:     that’s in the good old early days

NBT:     was it, ahh.

DR:     I can still remember

NBT:     you can still remember

DR:     I can still remember

NBT:     ah that’s very interesting. A very old man told me about that a long time ago, when you were a boy. And he called it Kalaamay, and you’ve got Kalamaya, thats the same word.

DR:     hmm

NBT:     that’s very helpful. That’s the old Kalgoorlie name.

DR:     that the old Kalgoorlie, Coolgardie,

NBT:     Coolgardie

DR:     Norseman,

NBT:     Norseman

DR:     Southern Cross

NBT:     mmm. All right. Well then have you ever heard … Mrs ah, Mrs Ramhead [sic], we were just talking about the word ‘Kalaamay’, Kalamaya. You ever hear that word?

NR:     yeah, this one here [ie her husband DR]

NBT:     ahh

NR:     Karlamaya

NBT:     Kalamaya

NR:     yeah that’s his lingo

NBT:     that’s his real lingo

NR:     yeah

NBT:     he says that’s a very old word from his grandfather

NR:     yeah.

NBT:     All right well I’ll tell you some other words that other people have told me at different times and I want to know what they mean. Ah Kalaako

NR:    Karlaku

NBT:    Kalako. Have you ever heard of the word Kalaku?

NR:     well that’s him [ie her husband DR]

NBT:     he’s a Kalaaku

NR:     yeah he’s a Karlaku. That’s mean he call em Karlamaya.

NBT:     kalaaku … [are kive?]

NR:     yeah, karla

NBT:     and what’s kala mean, one word

NR:     waru

NBT:     kala means waru, fire

NR:     fire

NBT:     Ahh. Why do they call you a Kalamaya or a Kalaaku?

DR:     different words we say, different word from the other fella, that why they call us karlaku

NBT:     ahhh because you say different word

DR:     yes

...

NBT:     Ngadju, Ngadju. And supposing we have to put a boundary between the Kalaaku side and the Ngadjunma side, where would the boundary run?

DR:     ahh Widgiemooltha. Widgiemooltha.

595    As observed by Mr Wood in his report, in the above passage, Noona Roundhead uses the Western Desert word for fire, waru, which she must have known or assumed that Tindale knew.

596    In a third extract, Tindale asks Don and Noona Roundhead about various locations in the eastern part of the trial area and whether they are within Don’s country. This part of the interview commences with Tindale asking Noona Roundhead about places she is familiar with in Western Desert country to the north and north-east of the trial area. Tindale continues to name places, progressing south toward the trial area. The extract below commences at Gindalbie station, with Noona answering the questions, although after being asked about a number of places in Don’s country, Noona says to Tindale that he needs to speak to Don:

NBT:     Gindalbie station, whose country would that be?

NR:     that all Nyatha

NBT:     Nyatha

NR:     yeah

NBT:     I think, are you sure you know where that’s, that’s down near Kanowna

NR:     yeah

NBT:     Gindalbie

NR:     Kanowna not um what’s a name, this one [Don] belong to him, Don

NBT:     ah, Don’s country, Kanowna in Don’s country

NR:     Don’s grandfather and grandmother.

NBT:     ah [pause] ah well then how far from …west does your country go? What about Goongarrie station. Do you know Goongarrie Station? Goongarrie?

NR:     [Goongarie]

NBT:     Goongarie, Goongarie

NR:     that’s belong to him, this one’s [Don’s] grandfather and grandmother, this all one [country]

NBT:     ah Goongarrie belongs to his grandfather and grandmother

NR:     yes

NBT:     Goongarrie, and what about Ora Banda?

NR:     Ora Banda’s all this one here’s [Don’s] grandfather and grandmother

NBT:    grandfather and grandmother

NR:    grandmother and all, [?they ma]

NR:     what about [Karliyon], you know [Karliyon]?

NR:     yeah this way

NBT:     long hill

NR:     his [Don’s] father's all that. Now you've got to talk to him

…

NBT:     no no. Now what about Don, talk to you now.

DR:     mm

NBT:     we go to Southern Cross now, you know the Yawurdi [Jaurdi] station, Yaurdi station is it, runs up from Boorabbin right north

DR:     no

NBT:     that's a new one is it

DR:     new one

NR:     Boorabbin

DR:     oh Boorabbin a new station

NBT:     oh might have a new name what do they call it?

DR:     Boorabbin

NBT:     oh Boorabbin, oh Boorabbin station, well whose country would that be?

DR:     well that’s from my father and mother’s run all the way through there

NBT:     right. Well how far north do they run? do you know the names of the stations right at the north of their country?

DR:     no I’ve never been too far up that way myself

NBT:     you’ve never been up that way

DR:     no I know it was my old man’s run right through

597    The interview continues with Tindale naming places in the north-west quadrant of the trial area, but it is apparent that Don Roundhead is not familiar with the places named by Tindale. The interview returns to the north-east quadrant and Don Roundhead identifies Comet Vale, Ora Banda, Mount Ellis, Broad Arrow, Scotia and Mount Burges as his mother’s country.

William Sambo

598    William Sambo was born about 1920 in Coolgardie and died in 1999. His father was Cordi Sambo (born about 1889 in Nullagine District and died in 1959 in Coolgardie) and his mother was Marlinyu Ghoorlie apical ancestor Lucy Sambo.

599    Willam was married to Linda Champion (born in 1923 in Kellerberrin and died in 2011). Linda Champion’s father was Ted Champion (born 1898 in Wilgoyne and died in 1968 in Coolgardie). Ted Champion’s mother was Marlinyu Ghoorlie apical ancestor Kajjaman (Nellie Champion) (born 1860 and died in 1929 in Moore River).

600    Their children include witnesses Gary Sambo (born 1947, died 2024), who gave evidence during the preservation hearing, and Elizabeth Sambo (born 1950) and Davina Sambo (born 1954) who both gave evidence at the trial.

601    William Sambo was interviewed by Stuart Fisher in 1992. In that interview, William told Mr Fisher:

(a)    His mother’s name was Lucy and that she was born in Kalgoorlie. When asked by Mr Fisher, William said that he could not recall the names of Lucy’s parents. Clem Donaldson, who also participated in the interview, said that Lucy’s father’s name was Muradi, and William agreed, and Clem also said that “whitefellas” called him Broad Arrow Tommy.

(b)    His father (referred to as “old Sambo” in the interview) came from Marble Bar and was a tracker.

602    William Sambo told Dr Powell that his mother Lucy is buried on “Mr Clamp’s farm at Barbalin”, which is about 10.5 kilometres west of Mukinbudin. He also told Dr Powell that he was “reared up” by “Auntie Mary” and “Charlie Now” (the surname spelling reflecting how Dr Powell heard William Sambo’s pronunciation of the surname), who was also called “Uncle Shepherd” because he was “always shepherding sheep”. Dr Powell noted that Charlie Now / Uncle Shepherd is the person identified in government records variously as Charlie Sheppard or Charlie Maddocks or Charlie Gnow and, on Tindale’s genealogy sheet 114 recorded at Southern Cross on 6 May 1939, as Charlie Nowa. For clarity, these reasons refer to him as Charlie Nowa / Shepherd. Charlie Nowa / Shepherd married Mary, the sister of Lucy Sambo (William’s mother). Charlie Nowa / Shepherd and Mary had no biological children of their own, but “reared up” (traditionally adopted) Lucy’s son William Sambo and, after Lucy’s death, took care of her youngest child Bertie Sambo.

603    William Sambo told Dr Powell that he did not want to “go through the Law” (that is, be initiated), and had taken refuge in the western part of the trial area and stayed there for a while, so that he would not be “caught’.

Phil Donaldson

604    Phil Donaldson was born in 1921. The year he died is not recorded in the evidence, but he was still alive in 1992, when he was interviewed by Stuart Fisher. Phil’s father was Dick Donaldson (born in 1895 in Fraser Range and died in 1976 in Kalgoorlie) who married Alice Wilson / Minjin (born in Coolgardie and died in 1948 in Kalgoorlie). Alice Wilson / Minjin’s father was Nyuumani (King Billy).

605    In an interview conducted in 1992, Phil Donaldson told Mr Fisher:

(a)    Alice Wilson / Minjin’s father was King Billy and her mother was Mary-Ann, whose Kapurn name was Karan.

(b)    Frank Roundhead was Alice Wilson / Minjin’s brother (and therefore King Billy’s son).

(c)    Johnny Wilson and Cecil Wilson had both been “through the law”.

(d)    Dick Donaldson “reared up” Willie Sambo and Willie and Phil went through Kapurn law at Coolgardie.

606    Ms Taylor reported that, in an interview with Mr Fisher in 1992 together with Desmond Sambo (Willie Sambo’s son), Phil spoke about how Dick Donaldson “reared Willie up” and used to work with him out at Pinjin Station, and how Willie and Phil went through Kapurn law at Coolgardie. Phil spoke about “all [Willie’s] sacred sites being on the Kalgoorlie side and mine’s on the Coolgardie side”.

Clem Donaldson

607    Clem Donaldson was born in 1923. The year he died is not recorded in the evidence, but he was still alive between 1997-2000, when he was interviewed by Dr Powell. Clem’s father was Dick Donaldson who, as noted above, married Alice Wilson / Minjin (and whose father was Nyuumani, King Billy).

608    In an interview conducted in 1992, Clem Donaldson told Mr Fisher:

(a)    His mother was named Alice. Alice’s father was a white man, but she was brought up by King Billy.

(b)    Frank Roundhead was his uncle.

(c)    Clem referred to King Billy as his grandfather, that King Billy’s Aboriginal name was Nyuumani and that King Billy died in 1934.

(d)    “Kapurn is the blackfellows of this country, of Coolgardie. Some of them went down to Southern Cross. They went there because some of them go looking for work and all that.”

(e)    His father, Dick Donaldson, and Clem himself could speak “Kapurn-thaa”. Clem said that they are Kapurn and that Kapurn “was all around here”. Clem was able to speak Kapurn-tha with Jack Champion because he “talked the same lingo”.

(f)    His father, Dick Donaldson, and Jack Champion were big law men. They were involved with the “Wangkayi’s”, travelling from “here” … “all the way through”.

609    In his evidence, Dr Wood explained that the word for ‘language’ in the Karlamaya language is thaa. Hence, the expression “Kapurn-thaa” means the Kapurn language.

610    Dr Powell gave evidence that, during her fieldwork in 1997-2000, she interviewed several descendants of King Billy, including his grandson, Clem Donaldson. Clem Donaldson told Dr Powell:

(a)    He used the term “Garbun” (Kapurn), meaning person in his language, in preference to the word “Gubrun”, which he said was a mispronunciation of “Garbun”, and stated:

The Garbun people really own the Kalgoorlie - Coolgardie area. They are the Donaldsons, Wilsons, Sambos and Champions (Jack and Ted).

(b)    “Kaalamaya is the language of the Garbun tribe”; and that he can talk it, “learnt it from Old King Billy of Coolgardie, Johnny Paddy, Ted Champion and Jack Champion” and that “Kalaako is our language”.

(c)    His grandfather, King Billy, was the “headman of this place”, referring to the eastern part of the trial area.

611    Dr Powell reported that, during her fieldwork in 1997-2000, senior members of the Donaldson, Sambo and Champion families told her that, some years ago, their “Law Men” decided to discontinue the participation of their young people in the “Law” (specifically, participation in initiation rituals involving circumcision). Clem Donaldson stated: “the Law thing — takes two or three weeks ...and to walk to it takes six weeks — just could not do Law and hold a job”.

Desmond Sambo

612    Desmond Sambo was born in 1942. His father was Willie Sambo, who was the eldest son of Marlinyu Ghoorlie apical ancestor Lucy Sambo (born about 1894 in Kalgoorlie and died in 1939 near Mukinbudin). Willie was an older brother to William (referred to above).

613    Ms Taylor reported that, in an interview with Mr Fisher in 1992 together with Phil Donaldson, Desmond referred to himself as a Kapurn person and stated that the Sambos are Kapurn people.

Linda Champion

614    Linda Champion was born in 1923 in Kellerberrin and died in 2011. Linda Champion’s father was Ted Champion (born 1898 in Wilgoyne and died in 1968 in Coolgardie). Ted Champion’s mother was Marlinyu Ghoorlie apical ancestor Kajjaman (Nellie Champion) (born 1860 and died in 1929 in Moore River).

615    Dr Powell gave evidence that, during her fieldwork in 1997-2000, she interviewed Linda Champion. Linda Champion referred to herself as a Kapurn person. She told Dr Powell that she had always known she was a Kapurn person since childhood and that she had passed her knowledge about her Kapurn identity to her children. She said to Dr Powell: “All my people are Gubrun people. Old people told me and my people we are Kaparn, Gubun”. Dr Powell travelled with Linda Champion and Cadley Sambo (William Sambo’s brother) to the Southern Cross / Mukinbudin part of their traditional country, so that they could show Dr Powell places there that were important to them and their old people. Dr Powell expressed the opinion that neither of those elders would have taken her there and shown her those places if they thought that by doing so they would be trespassing in someone else’s country.

616    Linda Champion also swore three affidavits in the Central West Goldfields claim. The first was dated 27 April 1999 (and was annexed to an affidavit made by Simon Blackshield, the solicitor for the Marlinyu Ghoorlie applicant, made on 23 February 2023). The second was dated 2 October 2002. The third was dated 23 March 2006 and prepared in advance of Linda Champion giving oral testimony by way of preservation evidence in the Central West Goldfields proceeding in Kalgoorlie on 24 July 2006. Linda Champion was 84 years old at the time of making her 2006 affidavit and giving oral testimony in Kalgoorlie. The three affidavits and the transcript of her oral testimony were tendered as evidence in this proceeding. The contents of her 2006 affidavit are materially the same as her 2002 affidavit, but expressed in a slightly shorter form, and largely incorporate the contents of her 1999 affidavit. Her oral testimony was consistent with the contents of her affidavits. What follows is a summary of her evidence, drawn principally from her 2002 affidavit, but supplemented where necessary by her 2006 affidavit and her oral testimony.

617    Linda Champion was born on 8 March 1923 at Kellerberrin “in the bush”. Linda’s mother was Elsie Nelson. Elsie was born at Kumminin (near Merredin) and was a “Bibulman” person. Linda’s father was Ted Champion. He was born at Wilgoyne, near Mukinbudin. Linda believed that he was born before 1900, because she was told that he was around 25 when she was born. He was some years older than his brother Jack, who was born in 1901. Ted Champion died in Kalgoorlie about 1968. Linda Champion described him as a Kapurn man.

618    Ted and Jack Champion grew up in the country between Mukinbudin and Coolgardie. They grew up in the camps of Kapurn people who were living in the bush and in the fringe camps. They were working for “white farmers who had come into their country”. The “Welfare” caught Jack and sent him to Moore River (which was also known as Mogumber). He ran away when he got bigger. They never caught Ted because he was very cunning. Welfare only took the fairer kids, so the old people used to paint the kids black with Sandalwood nut (they would burn the nuts in the fire first).

619    Ted Champion’s mother’s name was Nellie. Linda Champion was told by her father and other old people that Nellie came from the Mount Jackson / Southern Cross area. Linda Champion did not know the year when Nellie was born but thought it must have been around the 1870s. Nellie was a Kapurn woman. Her “run” was Coolgardie, Southern Cross to Mukinbudin (being the area where she travelled up and down). Nellie was sent away to Mogumber. She ran away and the police caught her near Southern Cross. They sent her back and she died at Mogumber in 1925. She is buried there. Linda Champion never saw her.

620    Ted Champion’s father was Jim Champion. He was from the Shark Bay area. He was sent from Shark Bay to Fremantle Gaol or Rottnest Island, then sent out to Southern Cross as a police tracker. He was over 70 when he died (when Linda Champion was in her 20s). He is buried in Southern Cross.

621    Linda Champion was the second of her parents’ 11 children. Her eldest two sisters, Elaine and Kathleen, were born at Kellerberrin. Kathleen is buried in Kalgoorlie. Her brother Neil was born in Ardath, on the Bruce Rock to Narrogin line, and is buried in Kalgoorlie. Her brother David was born at Walgoolan, near Merredin, and is buried in Kalgoorlie. Her brother Malcolm, who is also known as Ben, was born at Babakin. Her sisters Gertie and Greta were born in Southern Cross. Her brother Brian Champion Snr was born in Kwolyin. Her brother Tim was born at Bruce Rock and her other brother, Robert, was born in Merredin. Her mother and father adopted Dianne Tucker when she was a baby. Her mother also had another child, Betty, who died when she was very young. Gertie, Brian and Ben were put into Norseman Mission. Her mother put them in the mission because “the Welfare were grabbing kids and sending them to Moore River Settlement”. Her mother thought it was better that they went to Norseman, because it is closer to “our country”.

622    Linda Champion had seven children. Dennis, William, Shirley and Davina were born in Southern Cross. Gary and Elizabeth were born in Merredin and Desley was born in Kalgoorlie. Linda Champion also “reared up” her sister’s son, Timothy, after her sister died.

623    Linda Champion spent the early years of her life at Barbakin, which is in her mother’s country and where her mother’s family lived. Her father was working on a farm there. The family camped at Barbakin with her mother’s parents. Her father and grandfather worked together on labouring jobs like shearing and clearing country. They had no house and camped in the bush in tents made from chaff bags. Linda went to school in Barbakin. When Linda’s father finished working around Barbakin, the family shifted to Bruce Rock, where Linda’s brother Tim was born. Then, when Linda was about nine years old, the family came back to Southern Cross where Linda finished off her schooling. The family stayed on the Aboriginal reserve there. Linda deposed:

The Gubrun families were camping around there even before they made it a reserve. All they did when they made the reserve was put in two toilets and a tap. We used to have corroborees there at night. We didn’t have houses there, just camps made out of whatever we could find, like canvas and tin.

624    Linda Champion deposed that her father, along with his brother Jack Champion were “Law Men” for the region going from Mukinbudin up to Kalgoorlie, including Coolgardie. Uncle Dick Donaldson was also a Law Man for “Coolgardie way”. Linda deposed that she knew this because “they were going to corroborees and were travelling around to these areas for business”. Linda’s family spent a lot of time living in the western part of Kapurn country, around Southern Cross and Mukinbudin.

625    In oral testimony, Linda Champion said that she knew Dick Donaldson and referred to him as “uncle”. Linda said that she did not know if he was Kapurn, but she believed that his wife, Alice, was Kapurn.

626    Linda Champion described her father, Ted Champion and Uncle Jack Champion:

Dad was a tall thin fella. He was a wonderful old man and everybody respected him. The old people know him over to Alice Springs, and South Australia. He was very respected in law business. He had markings on his chest, arms, back and a hole through his nose. He would sing corroboree songs all day long. Uncle Jack Champion was tall and big.

627    Linda Champion’s parents moved around for work. They lived at many places including Mukinbudin, Yellowdine, Bullfinch, Burracoppin, Marvel Loch and Warralakin. They also regularly visited the Coolgardie and Kalgoorlie area: “camping and eating with the old people”.

628    In oral testimony, Linda said that Mukinbudin, Yellowdine, Bullfinch, Marvel Loch, Southern Cross, Warralakin, Bullabulling, Coolgardie, Kalgoorlie and Kanowna are all in Kapurn country, but Burracoppin is in Noongar country. Linda said that, north of Kalgoorlie, Kapurn country extends up to Goongarrie (and includes Broad Arrow) and, south of Kalgoorlie, Kapurn country extends down to Higginsville (which is south of Widgiemooltha and outside the trial area).

629    Linda Champion described living with other Kapurn families in Southern Cross:

There were other Gubrun families in Southern Cross at the time. We didn’t use the word “Gubrun” much at the time. Everybody just knew that we were part of that mob. I was told by Charlie Knowle that we were Gubrun. Later on I remember his old wife, Mary, used to tell my kids that they were Gubrun. Uncle Shepherd, as we called Charlie Knowle, was a Gubrun too. He used to keep a close eye on all the Aboriginal people that would come to town, find out who they were and he'd bring them along to the reserve. He was sort of a leader.

Our family used to meet up and camp with those other families. Somehow we were all related. We used to live together and help each other. These people included Frank Roundhead and Don Roundhead, Cecil Wilson, the Donaldson family, Johnny and Charlie Paddy, the Sambos - Lucy and Cordi and their kids, Bumblefoot, Billy Mundy, Peterson, Charlie Knowle and his wife Mary. Mary was Lucy Sambo’s sister. She raised up William Sambo. All the Sambo kids called Mary “muminga”. This means like “mum”. Charlie and Mary did not have their own kids.

I met King Billy and his wife in Southern Cross. He was the ancestor of the Donaldson family. I also knew Cecil Wilson. He visited Dad in Southern Cross.

Most of my people lived on farms or reserves. The men worked for station owners and fanners, and on the wood line. They also pulled sandalwood, and carted water.

630    The person identified as “Charlie Knowle” in the above passage is referred to in these reasons as Charlie Nowa / Shepherd.

631    Linda Champion was 19 years old when she “took up” with William Sambo. She went with him to Mukinbudin for work where they stayed for about two years before moving back to the Southern Cross reserve. They had what they called a “tribal marriage”. They worked and camped around places like Moorine Rock, Marvel Loch and Bodallin. Linda Champion and William Sambo also camped with other Kapurn people at different places around Coolgardie. All of their children, except the youngest, Desley, were born at Southern Cross or Merredin. Desley was born at Kalgoorlie. Linda went to Merredin to have Gary and Elizabeth, because her mother was there. Linda said that her mother and father moved backwards and forwards between Merredin and Southern Cross.

632    In oral testimony, Linda Champion said that William Sambo’s parents were Cordi and Lucy Sambo. Linda said that Cordi came from Nullagine, while Lucy was Kapurn.

633    Linda Champion and her family left Southern Cross in 1956 and moved to Coolgardie, where they got a house. It was the first time the family had lived in a house. Linda deposed that a lot of other people came to Coolgardie from Southern Cross around the same time, including her mother and father, her sister Kathleen, her brother Neil and his wife, her brother Dave, her sister Gertie and her husband Cadley Sambo, Cordi Sambo, Frank Roundhead and his wife Daisy, and Uncle Jack Champion and his family. Linda and William lived in Coolgardie from 1956 into the 1960s. They moved up and down between there and Kalgoorlie. They later moved to Kalgoorlie where William worked in the mines. They continued to go to Southern Cross to visit family and people they knew there, and to show their children the places where their “grannies” lived.

634    Linda deposed that:

I have always thought of myself as a Gubrun person, through my Dad. We always moved a lot between Southern Cross, Coolgardie and Kalgoorlie and our family mixed a great deal with other Gubrun families - the Donaldsons, the Roundheads and the Sambos.

In the early 1990’s, my family got together with the Sambo, Donaldson and Wilson families to make a group called the “Gubrun” corporation. We used the traditional name of our group to become an incorporated organization to cater for our people’s needs. That name is what the old people who grew me up called my father’s people.

You know whether someone is a Gubrun person by the family they come from. Whether that family is Gubrun depends on where their ancestors have come from and whether their ancestors spoke the language.

I speak some Gubrun and some Noongar language. I learnt the Noongar I know from my grandmother Liza. I learnt my Gubrun language mainly from my father. That was his mother’s language. He called it “Kalamaya Kapurn”. That is the same as “Gubrun”. It is also the same as “Kabul” – that’s what some people call it. In our language the word for fire is ‘kala’. The word for camp or country is ‘wamu’ and the word for kid is ‘mingarri’. The old people told my kids that they were ‘Kapurn mingarri’ – ‘Kapurn children’.

I always felt at home in the country from Southern Cross through to Kalgoorlie and also across to Mukinbudin. We belong to here because of our links to the old people, our ancestors. It is Dad's country. Dad told me about our “run”, our country. We call it “wamu”, that's like the Wongai word “ngurra”. From Mukinbudin to Kalgoorlie is our wamu. The feeling is in you, this is your home. It doesn’t feel the same when you go to other areas.

635    Linda Champion deposed that her father was an important Law man for the country covered by the Central West Goldfields claim. That area included the country from Mukinbudin through to Kalgoorlie, up to Mount Jackson and also south of Southern Cross and Marvel Loch. The people from further west knew and respected that, and were afraid to go there because her father’s people’s Law was very strong.

636    Linda Champion deposed that Kapurn country includes Kalgoorlie; it goes up to Goongarrie (but doesn’t include Menzies); and it goes down towards Widgiemooltha; and it goes east as far as Yindi Station.

637    Linda Champion deposed that there are a lot of sacred places you shouldn’t go to, including some places near Mount Jackson:

You have to be a Lawman if you go to certain special places. If not there’ll be big trouble. It would be like breaking the law - you would feel it in yourself that it was bad. The Law is there whether you are initiated or not, whether you are male or female, young or old. My children have been told about those places and that was it, they never went there.

638    Linda Champion described a number of rock holes in the trial area:

I learnt about the traditional water places. One of these was Koorkadine Rockhole, not far from Southern Cross. We used to camp around the soak here. Even though there is a salty lake on one side, the water in the soak is fresh. It's lovely spring water that never dries up. The whitefellas lined the soak with stones. They called it Hunt’s Soak. I was told by Uncle Shepherd that our people used to camp around there before the white man came. In the early days the white people used to water their horses and camels there. It’s a good hunting place. You get rabbits around the edge of the lake. You also get lovely sweet gum, like candy. It's a brown colour, it comes from the “Garri” tree.

Another soak is at Yellowdine Rockhole, on the Kalgoorlie side of Southern Cross. The soak is on the other side of the rock there at Yellowdine. I never went there, but my father and the old people used to talk about it. They used to get water from here. …

At the Dandannin reserve between Mukinbudin and Nungarin there is an old soak near where Gubrun people used to camp.

Burra Rock is a water hole where women used to go to get a kid.

There is a soak near Barbalin, near Mukinbudin. It’s at the foot of the rock just near the old homestead there. There is a big water snake in that soak. It travels from one soak to another soak at night. If the water snake gets killed at night then that’s the only time the soak will dry up. The old people told me this - we all know this story.

639    Linda Champion deposed that the main person who taught her about Kapurn traditions and customs was her father. He taught her what to eat and what not to eat. He told her a lot of stories and taught her what was right and what was wrong. Her father told her when she was little to never look up in the sky at night because there were things there that she must not see. Linda deposed that she also learnt from a lot of other people about her country and the culture, including Uncle Jack (Champion), Uncle Shepherd (Charlie Nowa), Uncle Johnny Paddy and Uncle Charlie Paddy, Granny Frank and Eva Roundhead, Uncle Don and Auntie Noona Roundhead. Linda was taught to marry outside of family. She was also taught about totems but she was not permitted to speak about them.

640    Linda Champion deposed that, in her early days, Coolgardie and Southern Cross were big Law centres. In Southern Cross they had a lot of corroborees which would go all night. Young people were allowed to watch the beginning part of the corroborees, but then they had to sleep and we were not allowed to watch what happened later. Children were only allowed to look at certain things. When the men were doing secret things, the children had to stay under a blanket. Linda deposed:

When I was about five years old I went to a corroboree in Coolgardie. It was held south of the railway line in Coolgardie, not far from the hospital. We came from Southern Cross to go to that corroboree. We spent a couple of nights in Coolgardie. Dick Donaldson and some of the other members of the Donaldson family were there. Queenie Donaldson was there and some of the Sambo family as well. …

They were still holding corroborees around Southern Cross in the 1940’s. I saw my last corroboree at Southern Cross when I was about 21. Phil Donaldson, a Gubrun man, did his dance there.

My father and his brother Jack were great corroboree singers. They would be doing the singing while others danced. Some of my earliest memories are of my father singing …

641    Linda Champion deposed that Kapurn people used to meet up regularly for “Law Business”. There was a big “Law Track” that went from Kalgoorlie down to Southern Cross. At Southern Cross it branched off to Bullfinch and Mukinbudin. From there it went further north. Linda remembered that people “were always travelling along these tracks”. Her father was often away from the family on “Law Business”. Linda deposed:

The Gubrun men’s Law has been stopped because the old people wanted it to stop. That was in about the 1950's. There were not enough of them left. They stopped it on their own terms and we respect that decision. The Law people out east, the Coonana people, also respect this.

Even though the men’s Law has stopped, I have brought my children up to respect their grandparents’ customs and laws. We still have our Gubrun traditions and customs that we stick to. …

642    Linda Champion learned about living in the bush and hunting and gathering “bush tucker”, including kangaroo, emu, rabbit, bobtail and goanna. Linda also learned how to get bush honey, how to collect bardi and how to crush seeds to make damper. Her children know how to do these things too. Linda deposed:

Bush meat is the best meat. We cook bush tucker by roasting it in the ashes or cooking on coals. I still prefer to cook damper and meat in the ground.

We cook kangaroo in the ashes with the skin on. J also know when is the best time for catching them, when they are fat - in the spring.

…

When the weather is getting warm the goannas are ready to come out. I know how to use a waana stick to kill goannas, my mother’s mother taught me how to do this. You can dig them out of their hole, but you have to be careful because snakes can be in the hole. You can eat every part of the goanna. The liver is good for lots of things - it can cure flu or sickness.

I know how to catch birds and prepare them. We catch and eat birds like the parrots and galahs. We used to get bush turkeys but today people are not allowed to touch them because they are protected.

We still get eggs from the Mallee Hen and fry them up. It is only a small bird but it lays big eggs. There are lots of eggs in the nest, it might lay about 14-15. Springtime is the best time to get them. Their nests are in the sand plain country. They build big nests that are also very high. You have to dig right down into the nest to get the eggs.

…

I also know where to find the yams, berries and nuts. We ate sandal wood nuts - they are like almonds.

643    Linda Champion also learned about bush medicine. She deposed:

I still use bush medicine. There is one tree that grows around Kalgoorlie that I use for bush medicine. It starts off as a shrub but can grow into a tall tree. I boil the leaves and the stems. I use it for anything, to wash my hair, or as ear drops. I drink it to make me healthy. My father told me about that medicine tree.

The fat from the emu and kangaroo is also a kind of bush medicine. You can use that fat to rub in your hair and over your body. It’s good for you. Bobtail liver is another medicine, you eat it when you are sick. It brings back your appetite.

644    Linda Champion deposed that she had rights in Kapurn country because she was descended from ancestors that came from the area. Being born in Kapurn country does not give a person rights in the country if their ancestors are not from the area. A person obtains rights to Kapurn country if they are adopted into a Kapurn family and brought up as part of the family.

645    At the conclusion of her 2006 affidavit, Linda Champion deposed that while Kapurn people have the right to go where they wish in Kapurn country, and to take what they want for food or medicine, other people should ask permission. She deposed:

The bungarl tree is a very good tree in Gubrun country for making strong spears. People from Warburton want these spears and travel dawn to get them. They still do this today but they ask before they do it. The Merredin mob like to hunt around Mukinbudin way but they ask and we let them and they share what they take.

A lot of other people do come to Gubrun country without coming to see us first but that is not right, they should come and see us and ask us if it is okay for them to come in and where they can go or not go. Under our law we have to protect the places that are important in Gubrun country and we can’t do that if people just come in without talking to you first and then go anywhere they want to.

Trixie Jackson

646    Trixie Jackson (née Champion) is the daughter of Linda Champion’s sister Kathleen Champion. She was born in 1949. Dr Powell gave evidence that, during her fieldwork from 1997-2000, she interviewed Trixie. Trixie told her that her grandfather, Ted Champion, “came from this area” (by which Dr Powell assumed she meant the Kalgoorlie / Coolgardie area). Trixie said that, in his old age, Ted Champion lived in a shed in her yard (in Kalgoorlie). Trixie said that her grandfather told her that: “When these old people are getting old and sick, they want to be buried where they come from; they want to come home to die so their spirit can rest” and that is why her grandfather left Merredin in his old age and came up to Kalgoorlie to die “in his home”. Trixie also told Dr Powell that her grandfather Ted Champion was a “Law Man” and when he lived in the shed in her Kalgoorlie backyard many people came to see him. She recalled that he: “had a bone through his nose; he could speak 14 different languages”.

F.3    Lay witness evidence for Elizabeth Sambo

647    Although Elizabeth Sambo is a respondent to the Marlinyu Ghoorlie claim, by the time of closing submissions she no longer contested the Marlinyu Ghoorlie claim. It is therefore convenient to address the lay witness evidence given by and on behalf of Elizabeth Sambo at this point.

648    Elizabeth Sambo gave evidence and called four other witnesses to give evidence: Gary Sambo, Lillian Bonney, Davina Mary Sambo and Trevor Henry Donaldson. Gary Sambo gave evidence at the preservation evidence hearing in February 2023. As noted earlier, Gary Sambo has since died. Elizabeth Sambo and the other three witnesses gave evidence during the lay evidence hearing. The evidence of each of those witnesses is considered in this section of the reasons.

649    As noted earlier, prior to the commencement of the trial, Elizabeth Sambo contested two principal aspects of the Marlinyu Ghoorlie claim. First, Elizabeth Sambo did not accept that Nellie Champion, and the members of the Champion family that are her descendants (including Elizabeth Sambo’s mother, Linda Champion), were Kapurn people. She contended that they were Ballardong (Noongar) people. Second, Elizabeth Sambo did not accept that Kapurn country extended west from Southern Cross. She contended that the country west of Southern Cross was Ballardong country.

650    As also noted earlier, by the time of closing submissions at trial, Elizabeth Sambo had withdrawn the above contentions. She accepted that the evidence established that Nellie Champion, and the members of the Champion family that are her descendants (including Elizabeth Sambo’s mother, Linda Champion), were Kapurn people. She also accepted that Kapurn country extended west from Southern Cross.

651    As discussed below, the oral testimony given by Elizabeth Sambo was consistent with the position she adopted in closing submissions. However, the written and oral evidence given by the other witnesses called on behalf of Elizabeth was largely consistent with the original position adopted by Elizabeth Sambo in the proceeding. That evidence is recorded below. Nevertheless, it is convenient to record at this point that, having regard to the weight of the lay witness evidence overall and the expert anthropological evidence discussed in these reasons, I do not accept the lay evidence given on behalf of Elizabeth Sambo to the extent it expresses the opinion that Nellie Champion and her descendants were not Kapurn and that Kapurn country does not extend west of Southern Cross.

Elizabeth Joyce Sambo

652    Elizabeth Joyce Sambo made a statement dated 25 August 2023 which was tendered in evidence. She gave oral testimony at the Kalgoorlie Town Hall on 16 October 2023 and at a site in Coolgardie identified as Warden Finnerty’s residence on 13 October 2023. She was cross-examined on both occasions.

653    Elizabeth Sambo currently resides in Kalgoorlie.

654    I considered Elizabeth Sambo to be an honest witness who answered the questions put to her fully and directly. I accept her evidence, save for certain aspects which I address below.

Biographical background

655    Elizabeth Sambo was born on 8 June 1949 in the bush at Merredin Reserve. Her parents were Linda Champion and William Sambo.

656    Elizabeth Sambo’s siblings are Dennis (deceased), Maxwell (deceased), Shirley Trott (née Sambo), Edward Sambo (known as Gary Sambo and who gave preservation evidence, now deceased), Davina Sambo, and Desley Richards (née Sambo). Elizabeth Sambo said that her mother also reared up Timothy Jackson who was her nephew (the son of her mother’s sister, Kathleen). In their evidence, Gary and Davina Sambo said that Timothy was raised in their family with the name Saul Sambo.

657    Elizabeth Sambo’s father, William Sambo, had five siblings: Rita, Willie, Arthur, Cadley and Bert. Elizabeth said that her father grew up in and around Coolgardie and then went to Southern Cross for work at an early age. While in Southern Cross, he met Elizabeth’s mother, Linda Champion, who attended Southern Cross school along with her sister Kathleen.

658    Elizabth Sambo’s paternal grandparents were Cordi Sambo and Lucy (Tarda) Sambo, also known as Jumbo.

659    Elizabeth Sambo said that Cordi Sambo did not speak the Kapurn language because he came from the top end of Western Australia. He was sent to the Kalgoorlie area to work with the police from Rottnest Island as a tracker, and ended up staying. Elizabeth said that, before coming to Kalgoorlie, he had a family at Nullagine (in the Pilbara). Elizabeth tendered a photograph which she said featured Cordi. The photograph shows five European men standing in a row wearing suits, hats and ties. In front of them is an Aboriginal man with two young Aboriginal children. The caption to the photograph states, “Messrs. D. F. Fleming, W. Hamilton, A. Walsh, E. Browne and D. Browne, with Sambo, a tracker, and two of his sons.” Elizabeth said that the photograph appeared in an old Kalgoorlie newspaper. Elizabeth identified the Aboriginal man as her grandfather, Cordi Sambo, and the two Aboriginal boys as her uncles, Cadley and Arthur Sambo.

660    Elizabeth Sambo said that Lucy Sambo’s father (Elizabeth’s great grandfather) was Broad Arrow Tommy, also called Udaji. Elizabeth said that, in the early 1900s, Broad Arrow Tommy used to live in the old lock-up at the back of the police station in Coolgardie. Elizabeth’s father told her that, when he was young, his family used to camp there with Broad Arrow Tommy. Elizabeth stated her belief that Broad Arrow Tommy, and his daughter Lucy, were Kapurn people, and that she is Kapurn herself by descent from them.

661    Although it is a minor matter, there is reason to doubt that the name of Lucy Sambo’s father was Udaji. As noted earlier, in an interview conducted with Stuart Fisher in 1992, Elizabeth Sambo’s father, William Sambo, agreed with Clem Donaldson that the name of Lucy Sambo’s father was Muradi (not Udaji), but “whitefellas” called him Broad Arrow Tommy.

662    In oral testimony, Elizabeth Sambo referred to a photograph annexed to the affidavit of Gary Cooper which depicted three Aboriginal women and a European man in a suit. In his affidavit, Gary identified the Aboriginal woman on the left of the photograph as his great-grandmother, Nada Bilbear. Elizabeth said that Gary was mistaken, and that the woman was her grandmother Lucy Sambo. Elizabeth said that she was told that by her father and her Uncle Cadley Sambo. For the reasons discussed below in connection with Gary Cooper’s evidence, I conclude that both Gary Cooper and Elizabeth Sambo are mistaken with respect to the people shown in the photograph. Dr Powell gave evidence that the same photograph appears in a book titled The Fields: Images of the Kalgoorlie Goldfields, 1890-1910 compiled by Ian Templeman and Bernadette McDonald and published by Fremantle Arts Centre Press in 1988. The book identifies the photographer as J J Dwyer and states that the photograph is of “Mr Hawkins and Aboriginal women outside the women’s house, Kalgoorlie, c. 1900”. In cross-examination, Elizabeth Sambo agreed that, if the photograph was taken around 1900, it could not depict Lucy Sambo because Lucy would have been about six years old at that time (having been born in around 1894).

663    Elizabeth Sambo’s maternal grandparents were Edward (Ted) Champion and Elsie Champion (née Nelson). Ted Champion’s mother was Nellie Champion. Aspects of Elizabeth Sambo’s written evidence suggested that she did not recognise her mother, Linda Champion, as a Kapurn person. As noted above, Elizabeth said that she (Elizabeth) is Kapurn through descent from her father and his mother. She also said that “most of my identity comes from my father’s side because this is where we have been the best part of our lives”. Despite that, in cross-examination, Elizabeth Sambo agreed that her mother was a Kapurn person.

664    Elizabeth Sambo grew up on sheep stations within or close to the trial area. Elizabeth’s father and brothers were shearers and musterers for several stations including Mungari, Carbine, Woolibar, Hampton, Bulong, Mount Monger and Credo. Elizabeth also remembers staying at other stations including Yindi, Remlap, Mollerin and Mouroubra.

665    Elizabeth Sambo started her schooling just outside of Southern Cross when she was about six years old, as her family was staying at a farm in the vicinity called Dandivan. After living on the farm, Elizabeth’s family moved to live on the Aboriginal reserve in Southern Cross. Elizabeth recounted that her father built a small camp out of tins he gathered from the farmers, which were cut and flattened into a sheet of tin, and nailed to wood. The tin was fashioned from empty fuel drums collected from farmers. Elizabeth described the house: “It was not big and roomy, but it kept the rain off of us and the cold out; it was no palace but it was home and we were happy”.

666    When Elizabeth Sambo was about nine years old, her father brought the family back to Coolgardie (where he was born and had grown up), to live and work at Mungari Station. Elizabeth’s father built a shed on Mungari Station out of old gum trees, which he had cut down, tied together with wire, and put tin over the branches.

667    Elizabeth Sambo said that the Donaldson family stayed with them at some of the stations, especially at Credo Station. Elizabeth’s father told her that, when he was growing up, he used to stay with Uncle Bob Donaldson, Uncle Kingy (Clem Donaldson), Uncle Phil Donaldson and Uncle Henry Donaldson.

668    Elizabeth Sambo explained what life was like growing up on sheep stations in the area:

These were large sheep stations so we stayed out there for months on end hardly coming into town. Aboriginal people were not allowed to be in town so the best place for us was out bush and we were happy there. The station owners got what we needed from town; they would ask our parents and our parents would put in an order. We only went into town when someone needed a doctor, medication or to have a baby.

669    Elizabeth Sambo said that, after her sister Desley was born in the late 1950s, her father purchased a house in Coolgardie and it became the family’s permanent home in 1955 or 1956. Elizabeth gave evidence at Warden Finnerty’s house in Coolgardie, which is a historic site located near the house that Elizabeth’s father bought.

670    Elizabeth Sambo also gave evidence about several camps (or reserves) that used to be set up in Coolgardie where Aboriginal people lived. The first was near the Great Eastern Highway, and the second was on a sand plain near Warden Finnerty’s house. This was where Elizabeth and her family camped for some time. Elizabeth said that the camps included not only Kapurn people, but also families from other areas.

671    When living in Coolgardie, Elizabeth Sambo lived at home with her mother, while her father and brothers got jobs in town. Along with her younger sister, Davina, Elizabeth attended school in Coolgardie. Elizabeth’s brother went to high school in Kalgoorlie.

672    Elizabeth Sambo said that her father brought her grandfather, Cordi Sambo, to live with the family in Coolgardie. Cordi lived in a makeshift house in the backyard, and it was Elizabeth’s job to look after him. Cordi passed away in Coolgardie Hospital in 1959 when Elizabeth was nearly 10 years old.

673    Elizabeth Sambo recounted her father taking her and her siblings to the Aboriginal reserve near the reservoir to visit elders after he came home from work. She said that he would often take them to visit Granny Gnuarmarn (Frank Roundhead) and his wife, Granny Munjong (Daisy Rice). Other witnesses spell Frank Roundhead’s Aboriginal name as “Nyumarn”. Don and Noona Roundhead had a small hut next to them. Elizabeth gave the following evidence in relation to her elders:

We learned from our old people. They were with us wherever we went. They were our teachers and protectors. The old people who were with us constantly when were at Coolgardie Reserve were Granny [Noona Roundhead] and Granny [Don Roundhead]. There were others at different places; wherever we went we had old people with us. Uncle Cadley Sambo and his wife Aunty Gertie were with us a lot too.

674    Elizabeth Sambo’s father and brothers eventually relocated to Kalgoorlie for work on the mines. Elizabeth Sambo that her father worked two jobs: at night he was shearing sheep coming from the eastern states and during the day he worked underground at Lake View Mine.

675    Elizabeth Sambo said that she has four children: Gina Sambo, Lonnie Coleman, Marcia Coleman and Leon Coleman. She did not give evidence about her husband or partner, and very little evidence about that phase of her life. She said that two of her children, Gina and Lonnie, were born in Kalgoorlie. They grew up in Kalgoorlie before Elizabeth and her partner moved to Queensland in the early 1980s. She lived in Currumbin for four years, then shifted to South Australia where her mother and three sisters were staying. Elizabeth had her youngest children Marcia and Leon in Port Lincoln. In 1989, Elizabeth Sambo came “back home” to Coolgardie to be with her father and “so my kids could experience the things that I did growing up”.

Kapurn people

676    Elizabeth Sambo said that she is a Kapurn elder. In her written evidence, she said the Kapurn people are descendants of Broad Arrow Tommy and his daughter Lucy Sambo, and the descendants of Kaddee and Warada. Elizabeth Sambo said she is Kapurn because her father was one of Lucy Sambo’s sons. However, as noted above, in oral testimony Elizabeth Sambo agreed that her mother, Linda Champion, was a Kapurn person, and that Linda’s grandmother, Nellie Champion, came from the Mount Jackson area.

677    In her written evidence, Elizabeth Sambo stated her belief that the Kapurn people hold rights and interests in country in the Kalgoorlie / Coolgardie area. In oral testimony, she agreed that Kapurn country extends out to Mukinbudin.

678    Elizabeth Sambo said that ‘Kapurn’ means the same thing as ‘Gubrun’ and that they are just different spellings of the same word. She said that she did not hear the words ‘Karlamaya’ or ‘Kalaako’ when she was growing up, and that the first time she saw the words was on native title papers in the 1990s.

679    Elizabeth Sambo and her immediate family believe that they are Kapurn people because that is what they were told by her parents. She said:

Our old Granny [Don Roundhead] would always sang out to us, “Here my gubiltha coming, gubiltha thumus”. Gubiltha means Gubrun kids. Thumus means grandkids. He and the old people in Coolgardie would always call us that, so we just took it for granted that's who we were.

680    Elizabeth Sambo said that the Sambo and the Donaldson families grew up together, and that her father, Clem Donaldson, Phil Donaldson and Henry Donaldson always said that they were the “the same group, the same people”.

Kapurn country

681    Elizabeth Sambo’s written evidence about the borders of Kapurn country was as follows: she said that the eastern boundary of Kapurn country is from Widgiemooltha to Goongarrie (and east of Kapurn country is “Spinifex Country”); the northern boundary is from Goongarrie to Diemals (and north of Kapurn country is Badimia country); the western boundary is from Diemals to the vermin proof fence, and then to Bullfinch, Southern Cross and Jilbadgie Rock (and west of Kapurn country is Noongar country); and the southern boundary is from Parker Range to Widgiemooltha (and south of Kapurn country is Ngadju country). This is a smaller area than the trial area and reflected Elizabeth Sambo’s original contentions in the proceeding. However, Elizabeth Sambo agreed in cross-examination that Kapurn country extends past Southern Cross out to Mukinbudin. As noted above, by the time of closing submissions, Elizabeth Sambo had withdrawn her contentions concerning the boundaries of Kapurn country and agreed with the boundaries put forward by the Marlinyu Ghoorlie applicant.

Kapurn laws and customs

682    Elizabeth Sambo gave the following evidence about how Kapurn laws and customs were practised:

The law was strong on our Country. We knew that because we were always told by our families when certain things were to take place. When that happened, we were not allowed to go outside or go anywhere, had to turn all lights and fire out and go to sleep early. Our people were strong in their laws and customs.

683    Elizabeth Sambo explained that there were many corroborees at Coolgardie and in Southern Cross. She recounted going to a corroboree when she was about 9 or 10 years old. She remembers that she was not allowed to see what was happening or take part in it, because everything was sacred. She was only permitted to listen and was covered in bags and blankets, so slept through the ceremony.

684    Elizabeth Sambo said that she was told by her father, William Sambo, and Uncle Cadley Sambo, that their mother, Lucy Sambo, and her eldest sister, Muminga, were the law women for the area of Coolgardie, East Coolgardie and Kalgoorlie.

685    Elizabeth Sambo said that her uncles, Willie Sambo and Phil Donaldson, were taken from Coolgardie at the same time to become watis (law men). Elizabeth said there was a big corroboree on the old ground leading out to Victoria Rock Road. Uncle Willie Sambo and Uncle Phil Donaldson went out together, one for each Kapurn family, and returned at the same time. Elizabeth noted that Uncle Phil Donaldson and Uncle Willie Sambo were separated when they went through law, each going in separate directions through the bush, possibly out to Alice Springs. Elizabeth was not told what they were doing while they were away and does not know who the people were that took them. Uncle Willie Sambo and Uncle Phil Donaldson were “welcomed back by their tribe with a corroboree”.

686    Elizabeth Sambo gave evidence about “special men” who moved through the country, and came to take young boys out to go through the law. She said that these men were not Kapurn, because Kapurn people do not practise “the law” anymore (by which Elizabeth meant male initiation ceremonies). Elizabeth recounted that once, when she was at Yindi Station, her father and Uncle Cadley Sambo knew there were “special men” in the area because people would send messages to them. Elizabeth’s father and Uncle Cadley Sambo made sure that the boys were close to the homestead because they did not want any of the boys to be taken. They put food in a special place for the men. Elizabeth said that you could hear the “special men” moving through the country. She said that you could hear the birds calling out at night, which was very strange. The “special men” came around the time coming into Christmas, which they called collection time, because it is when they would “grab the young fellas and take them bush”.

687    In relation to sacred sites, Elizabeth Sambo said that, as a child, she was told where she was and was not allowed to go. She recounted that numerous times she went with her parents to take Uncle Phil Donaldson to visit sacred sites, where he checked that they were not damaged. Elizabeth and her family stayed in the car. Elizabeth’s father and Uncle Cadley Sambo knew where many of the sacred sites were because of this, but they could not go to them because they had not been through the law. Nonetheless, they made sure that Elizabeth and her siblings knew where they were located. Elizabeth said that Uncle Phil Donaldson often asked people to drive him out to sacred sites to check on them because he did not have a car. He got “panicky” when he heard that mining leases were being granted over particular areas where sacred sites were located. Elizabeth Sambo said that many of the sacred sites are on the south side of Kapurn country, between Coolgardie and Gibraltar.

688    Elizabeth Sambo said that one place that she knows people cannot access is the old cemetery in the sandplains behind Coolgardie Hospital. Uncle Phil Donaldson took her and her family there in around 1999 or 2000 to show them where it was to make sure they protected it from being mined for sand. Elizabeth Sambo said that the “Sites Department” had talked about wanting to fence the area and asked Elizabeth Sambo’s father and Uncle Phil Donaldson how many people were buried there. They said it was over 200 people.

689    In relation to decision-making processes, Elizabeth Sambo said that the older people always made decisions about Kapurn business by calling a meeting and making the decisions jointly, because this was the traditional way of making decisions. Uncle Cadley Sambo told Elizabeth Sambo about a meeting place in Kalgoorlie, where the Kapurn tribe came together to discuss important issues such as when people were fighting or when people wanted to get married. He told her that they stayed there to talk it out. Even where the discussions became heated and people were threatening each other, the elders stayed there until the business was sorted out, because that was part of the Kapurn law that they followed. Elizabeth said that the meeting place is now the sports oval in Hannan Street, Kalgoorlie, so it cannot be used as a meeting place anymore. Elizabeth said that Kapurn people still try to make decisions about family business today in the same way. When Uncle Cadley Sambo was alive, family business meetings occurred at his place.

690    Elizabeth Sambo’s father, William Sambo, and Uncle Cadley Sambo taught Elizabeth about “rules on Country”. Elizabeth Sambo said that they told her about a practice that occurred when the people from “Spinifex Country” came into Kapurn country. When they came to Lake Perkolilli, near Kanowa, they made a fire and waited on that side of the lake until someone from the Kapurn side saw the fire and came to ask them why they were coming to town. Elizabeth said this was to make sure they were not coming in to stir up trouble or start warfare.

691    Elizabeth Sambo’s father told her that Kapurn people used to bury people by first leaving them in the fork of a tree to deteriorate. The bodies were then crushed up so they could be buried in a small area.

692    Elizabeth Sambo also gave evidence about the billarng, which is a squeaker bird or a currawong. She said that when they make a noise, they make a “big racket”. Elizabeth’s father told her to hunt them away if they were around. They were much bigger birds during the Dreamtime and they used to take children away.

693    In relation to marriage, Elizabeth Sambo said that it was an important cultural rule that people were not to marry their own bloodline. This was determined by the family, who knew who someone was related to and their genealogy, and would then decide whether two people were too close to marry. Elizabeth said it was permissible for a Kapurn person to marry another Kapurn person, so long as they were not in the same bloodline.

694    In relation to spirits in the country, Elizabeth Sambo said that her father told her that if anything bad was happening out on country, you should build a fire because spirits cannot pass through smoke. Elizabeth recounted a story from when she was younger that involved spirits:

Once, when we were young, Norma Dimer and I went to the tip. We had to come past the Coolgardie cemetery on the way home. We would always pull in there, because there was a tap we could have a drink at. We were always told not to go past the cemetery after dark. This time, the sun was starting to set because we had been messing around playing. We came back and we couldn’t sleep that night because it felt like something wasn’t right. Next morning we told Granny Dick Donaldson, because he was the main one who had warned us not to be there after dark. Granny [Dick Donaldson] growled at us, and told us this is what happens when you are out there after dark. He told us one of the spirits had followed us home and that he and the old people would have to sort it out. I don’t know how they sorted it out, but they did.

695    Elizabeth Sambo said that she never feels threatened when she is out of town on country, and that she always sleeps better when out camping. Elizabeth said that this is because her ancestors want her to have that rest.

696    Elizabeth Sambo said that she talks to old people who have passed away all the time, including her father, her brother, Dennis Sambo, and Uncle Cadley Sambo, who she asks to come and look after her. Elizabeth said that when she is especially stressed, she takes her children out to Coolgardie, and talks to her ancestors and tells them that she needs their help. Elizabeth Sambo said:

I know that they are watching over us, because they want the right things to happen in their Country.

Knowledge of country and use of resources

697    Elizabeth Sambo said that, while she was growing up, she did all the things that her ancestors did, including corroborees, learning what to eat, tracking animals and how to find things in the bush. She said that her father was the breadwinner for many of the old people who could not work, so they travelled and stayed with her family as they moved from station to station. Elizabeth said that the old people taught her what they wanted her to learn. She went out into the bush each day with the elders, and bring wana sticks (long pointed walking and digging sticks). Elizabeth explained what foods she gathered from the land under the instruction of her elders:

We picked gum, dug jungy jungy and goog onion, and picked seasonal fruit like quandong. After a good rain sweet gum hangs from the jam gum trees. We picked and cooked kulgulas (silky pears), but if they are young they are sweet straight from the vine. We learnt how to hunt and track game and cooked small goannas. Hunting bigger game was always the boy’s role. We enjoyed all the old people's company.

698    Elizabeth Sambo also used to go hunting with her father, her brother, and Richard Sambo, her cousin. They hunted for tjilkamarta (porcupine in the Kapurn language), emu, turkeys, goanna, and bardis. She said that it was important that you only took what you need.

699    Elizabeth Sambo said that she still collects sandalwood and other wood to make artefacts like clapping sticks and digging sticks.

700    Elizabeth Sambo said that she survives on bush tucker, primarily kangaroo tails and kangaroo meat. She said that her son goes out and gets meat for her. Elizabeth Sambo does not like takeaway food, or food from the grocers and butcher, so prefers to go “out bush and have a big feed”.

701    Elizabeth Sambo also makes bush medicine, including creams and medicines to drink. Elizabeth uses the bunyung (possibly spelled bunyaan, as referred to in the evidence below) tree for the drinking medicine, and a stronger tree for making creams. Elizabeth said that her back veranda is set up so that she can make the medicines. Elizabeth said that she does not sell the medicine, but gives it to people. She also likes to teach the children in her family how to make medicine.

702    Elizabeth said she makes a lot of quandong jam, and keeps some in the freezer in case it is not a good season coming up.

703    Elizabeth said that she uses medicines and food from all over Kapurn country. She travels around Kapurn country with the children in the car to get quandong, kulgulas, or whatever she needs. She also cooks kangaroo tails while out in the bush.

704    While giving evidence at Warden Finnerty’s house, Elizabeth Sambo provided examples of the food and medicines that she had gathered from the bush, including kulgula, quandong, and particular bushes that are used for medicinal purposes. She also provided an example of a cream made from the bunyaan tree and of drinking medicines.

705    Elizabeth Sambo said that she often makes bush tucker for her family, including cooking meat and making damper. She said she is the main damper maker in the family. She explained that she made damper from flour made from bugudu seeds, which grow around rock holes. Elizabeth’s father taught her how to collect the seeds and make flour out of them. Elizabeth provided an example of the bugudu seeds while giving evidence at Warden Finnerty’s residence.

Karratjibbin claimants

706    Elizabeth Sambo said that she is related to the Yarran family who are the applicants for the Karratjibbin claim because two of her uncles were married into the family. Elizabeth used to stay with the Yarran family near Quairading and York when she was a child. Elizabeth Sambo believes that the Yarran family are not Kapurn people and have no rights or interests in the Mukinbudin area or the Southern Cross area.

Gary Sambo

707    Gary Sambo made a statement dated 15 February 2023 which was tendered in evidence. He gave oral testimony at the preservation evidence hearing at the Kalgoorlie Town Hall on 22 February 2023 and was cross-examined. As noted earlier, Gary Sambo died in February 2024.

708    At the time of giving evidence in February 2023, Gary Sambo lived in Coolgardie.

709    In the course of giving evidence, Gary Sambo was assisted by his son, Gary Sambo Jnr. Gary Sambo Jnr relayed the questions asked to his father, and at times explained the question further where he did not understand. Gary Sambo Jnr also relayed his father’s answers to the Court when the Court could not hear or understand the answers.

710    While I generally accept the evidence of Gary Sambo, I consider that his evidence must be treated with some caution because there were several inconsistencies in his evidence. Also, in certain important respects, Gary’s evidence was inconsistent with the evidence of his sister, Elizabeth Sambo, and the evidence given by his mother, Linda Champion, in the Central West Goldfields proceeding, which has been set out earlier in these reasons. In particular, Gary did not believe that his mother, Linda Champion, or the Champion family more broadly, were Kapurn, and he did not believe that country west of Southern Cross was Kapurn country. Having regard to the weight of the lay witness evidence and the expert anthropological evidence discussed in these reasons, I do not accept Gary Sambo’s evidence to the extent it is inconsistent with the evidence of Elizabeth Sambo and Linda Champion.

Biographical background

711    Gary Sambo was born in 1947 at Merredin. He was raised mainly in Kalgoorlie and Coolgardie.

712    Gary Sambo’s father was William Sambo and his mother was Linda Champion. Gary is survived by his siblings Elizabeth, Shirley, Davina, Desley and Saul. As at the date of his statement, two of Gary’s brothers, Dennis and Bill, were deceased. Gary said that Saul’s biological mother was Kathleen Champion, the sister of Gary’s mother, Linda Champion. Saul’s father was Shep Dimer, a Ngadju man. Kathleen Champion died from asthma when Saul was a baby, after which Linda Champion raised him. Saul was born as Tim Champion, but was raised as Saul Sambo.

713    Gary Sambo said that his father, William Sambo, was brought up in Coolgardie, “in the bush”. William Sambo’s mother was Lucy Sambo, whom Gary described as a Kapurn woman. Gary said that his grandmother, Lucy, was born in Kalgoorlie. Gary said that Lucy’s father was named Udaji. Gary said that he did not know much about Udaji or the authority he had. Lucy’s husband was Cordi Sambo, who was from Nullagine in the Pilbara.

714    As noted above in the context of Elizabeth Sambo’s evidence, there is reason to believe that the name of Lucy Sambo’s father was Muradi rather than Udaji.

715    Gary Sambo said that his father, William Sambo, was “reared up” by Charlie Knowle (whom Gary called “Granny Shep”). As discussed elsewhere, Charlie Knowle’s family name was also spelled Nowa, Now and Gnow (and he was also referred to as Charlie Shepherd and Charlie Maddcok). Gary said that Granny Shep was a Kapurn man. Granny Shep was married to William Sambo’s aunt Mary (Lucy Sambo’s sister). In his written evidence, Gary said that Granny Shep lived out at the camp at the Coolgardie Reserve (which was a water reserve at which Aboriginal people camped and lived). Gary said that, in his school days, he met up with Granny Shep and other “old people from the Reserve” down at the shops. However, during oral testimony, Gary said that Granny Shep and Cordi Sambo lived at the back of his family house in Coolgardie. The inconsistency in the evidence was not explained.

716    Gary Sambo said that his mother, Linda Champion, was born in Kellerberrin and raised at Badjaling Mission near Merredin. Linda’s parents were Ted Champion and Elsie Nelson. Gary said that Elsie’s stepfather, Old Bill Nelson, was a Noongar man. Elsie’s biological father, George Riley, was also a Noongar man. Gary said that Ted Champion’s parents were Jimmy Champion and Nellie Champion. He said that he was told that Nellie was from Wilgoyne near Mukinbudin and that Jimmy was from Champion’s Bay near Geraldton. He said that he did not believe that either Nellie Champion or Jimmy Champion were Kapurn. In respect of Nellie Champion, Gary’s evidence is inconsistent with the evidence given by his mother, Linda Champion, in the Central West Goldfields proceeding, as set out earlier in these reasons. It is also inconsistent with the oral testimony given by his sister, Elizabeth Sambo. Having regard to the weight of the lay witness evidence and the expert anthropological evidence discussed later in these reasons, I consider that Nellie Champion and her daughter Linda Champion were Kapurn people and I do not accept Gary Sambo’s evidence on that issue.

717    Gary Sambo said that his father’s brother, Cadley Sambo, married his mother’s sister, Gertie Champion.

718    Gary Sambo said that his father worked all across Kapurn country, catching wild horses, breaking them in and selling them. His father built yards all around the area between Coolgardie and Southern Cross. His father took Gary and his older brothers along with him when he was living in the bush constructing these yards. Gary said that his father and Granny Don Roundhead used to work for all the pastoral families around Coolgardie and Kalgoorlie. His father used to shear sheep and Granny Don was the roustabout. Gary recalled that they took him with them when he was young and that he used to steal biscuits from the shearing shed. He recalled that his father and Uncle Cadley worked at Mungari Station, between Coolgardie and Kalgoorlie.

719    Gary Sambo married Shirley Bonney and together they had six children: Suzie, Darren, Leith, Gary Jnr, Kyra and Tamara. He had many grandchildren. He and his wife separated over 20 years ago.

720    Gary Sambo said that he started shearing when he was 15 years old and continued until he retired from it when he was about 42 years old. Gary Sambo worked at stations all over Southern Cross, all over the Goldfields up to Wiluna and all over the Nullarbor.

Kapurn people

721    Gary Sambo said that a person is Kapurn through descent from a Kapurn person (whether father or mother), and not from being born on Kapurn country. Gary believed that he was Kapurn because his father was Kapurn. He said that his children are connected to Kapurn country through him, and are also connected to Wiluna, their mother’s country, through her.

722    Gary Sambo said that he was told that he was a Kapurn person by the Aboriginal elders living in Coolgardie, including Granny Shep and Granny Don Roundhead:

Granny Shep would say that me and my family were Kaparn people. The old people from the Reserve wouldn’t say too much about it, but they would make it clear, in no uncertain terms, who you were and where you belonged. They said that was important; everyone has an identity and that is who we are. My Mum and Dad really didn’t talk about it much, it was those old people, especially Granny Shep and Granny Don Roundhead; they would straight out tell me. They told me that the Sambo family were Kaparn people. It wasn’t the government or white people from a mission telling me that, it was the old people who lived out in the bush; this was a long time before native title came along! That’s why I’ve got no problem saying who I am and where I am from.

723    As noted above, Gary Sambo said that the Coolgardie Reserve was a water reserve and not a real ‘Aboriginal reserve’, but that Aboriginal people lived on the reserve until at least the 1970s. He said that the foreman with the “Water Works”, Charlie Dugan, was good mates with the “old people” who lived there and put a tap in and made a camp there with whatever material he could get when he could get it, and that is how it turned into a reserve for Aboriginal people to camp. Gary said that not everyone who lived at Coolgardie Reserve was Kapurn. He said that Ngadju and Wongai people also lived there. He said that a Kapurn man called Frank Roundhead, whom Gary knew as “Granny Nyarmarn” (also spelled Nyumarn) or “Old Frank”, was “running the show” at the Reserve and was respected by all the people living at the Reserve, no matter where they came from. Gary said that Granny Shep and Granny Nyarmarn were very close. Gary Sambo also said that Granny Nyarman’s son, Granny Don Roundhead, was Kapurn.

724    Gary said that if you are an ancestor of Lucy Sambo, you are Kapurn. He said that his family has always known who Lucy Sambo was and where she belonged:

Lucy Sambo is buried at Mukinbudin because that is where she passed away. She died of TB, which she picked up like a lot of our people. She went to get her daughter Rita from Moore River Mission over north of Perth. Rita had been grabbed and taken there when she was 4 or 5. Lucy stole her from Moore River and tried to bring her back home. They got as far as Mukinbudin before the trackers caught them. They took Rita again and Lucy died from the TB not long after. Rita stayed at Moore River until she was 18. Granny Nyamarn verified for the police that Lucy had TB and was in and out of Kalgoorlie Hospital, so the police could confirm there were no suspicious circumstances about her death. That story is in the written records.

725    Gary Sambo also gave the following evidence regarding his Uncle Cadley:

Uncle Cadley was taken to the Moore River Mission too. He ran away from there when he was about 8. He got himself to Midland, and Ernie Cockle, a Noongar bloke from Sunbury, to hide Uncle Gadley from the station guards, put him in a bag, slung it over his shoulder and threw the bag onto a train going to Southern Cross. Uncle Cadley waited in Southern Cross the next day and then got on a train to Bullabulling. Dad then put him on a horse and sent him up to hide out with people living in the bush at Mount Burgess. After 2 years, Dad brought him into Coolgardie. When the police found out about him being in Coolgardie after so long away from the Mission, they decided they’d just leave him alone. Uncle Cadley told me that story.

726    Gary Sambo said that the Donaldson family had always been close to the Sambo family. He believed the two families were connected somehow, but he didn’t know exactly how. He said that his father and his uncles were very close to Clem Donaldson, whom Gary called “Uncle Kingie”, and Phil Donaldson. They called each other “brother” and Gary Sambo called them “uncle”. He said that Phil Donaldson was a “law man”. He gave the following evidence regarding the Donaldson family:

Uncle Phil Donaldson was Uncle Kingie’s brother. Like Uncle Kingie, he was classed as a brother to my Dad and his brothers. He was a strong cultural man. He was a very quiet bloke, very softly-spoken. His mother had close connections with the Sambo family. My family had a lot to do with him, because that family was close to my Dad’s family, and I have memories of him going back to when I was 4 or 5. He was one of those blokes who knew what he was talking about and you wouldn’t want to try and put one over him! He was very sharp. He knew a lot of cultural things, but he kept things pretty much to himself; he really thought about every word he said before he spoke it. He passed away a fair while back, I think in the 1990s.

My Dad’s older brother was a strong cultural man in his generation, older than Uncle Phil. My Dad and Uncle Phil told me about him.

727    Gary Sambo said that the four Donaldson brothers were Clem, Phil, Henry and Robert, and they had a sister Dorothy. Gary believes that they were all Kapurn though their mother. Gary believes that their father, Dick Donaldson, was Ngadju, but he was a custodian for Kapurn country.

728    Gary Sambo gave evidence that he didn’t leave Kapurn country for periods longer than three or four months. He said:

I won’t take off from Kaparn Country. I can go away for 3 or 4 months, but I always come back here. That’s not because I want to stay here, it’s because it is Lucy Sambo’s Country and I wouldn’t feel good going somewhere else to settle down, because it wouldn’t be my Country.

Kapurn language

729    In oral testimony, Gary Sambo expressed his belief that the language for the Kapurn people is called “Kapurn”. Gary Sambo agreed that the word karla means fire in the Kapurn language, but initially he said that he was not familiar with the word ‘Karlamaya’ and did not know if it was the name of a language. However, a little later he contradicted himself:

MR PUDOVSKIS:     Yes. You said the language for your people is Kapurn language, I’m suggesting to you that another word for that is the Kalamaia language. Are you prepared to agree to that or not?

GARY SAMBO:     Well, that’s what I’m saying, Kalamaia is Kapurn language.

730    Gary Sambo said that he used the spelling ‘Kaparn’, because that was how the word was pronounced by the old people.

731    Gary Sambo said that when he was growing up only a handful of people spoke Kapurn. Those people included his father, Uncle Cadley and Uncle Kingie (Clem Donaldson). He deposed that:

It was a proper language, not a made-up language or broken English. I heard them speaking it and it is a very hard language; the words are very difficult to pronounce, or at least that’s how it seemed to me. But those old blokes who were reared up on it found it easy. I can’t really remember many Kaparn words anymore.

732    He said that Uncle Kingie married a Wongai woman, and so he could speak Wongai as well as Kapurn.

Kapurn country

733    Gary Sambo gave evidence about the boundaries of Kapurn country:

At the northern boundary, around Goongarrie, you get off the sand plains and into Country where you get the marlinyu tree. Where the marlinyu starts is where Kaparn Country starts. Marlinyu is the Kaparn name for the salmon gum. The old people who lived at the Coolgardie Reserve told me that; they pointed out the different types of trees when we drove out there and explained to me that it was because the soil was different, and they told me who belonged to which area.

734    Gary Sambo said that Granny Shep told him that the western boundary of Kapurn country is Lake Koorkoordine near Southern Cross. He said that Lake Koorkoordine was Granny Shep’s country. In oral testimony, Gary said that Mukinbudin is not Kapurn country. That evidence is inconsistent with the evidence given by his sister, Elizabeth Sambo, in this proceeding, and with the evidence given by his mother, Linda Champion, in the Central West Goldfields proceeding. Having regard to the weight of the lay witness evidence and the expert anthropological evidence discussed later in these reasons, I do not accept Gary’s evidence on that issue.

Kapurn laws and customs

735    As noted earlier, Gary Sambo said that a person is Kapurn through descent from a Kapurn person (whether father or mother), and not from being born on Kapurn country.

736    Gary Sambo gave evidence about the right to speak for country and the obligation to care for country. Gary said that if you are Kapurn, you are entitled to speak for Kapurn country. However, he was taught that there are certain people who have the authority to speak for country in relation to certain things because they have been told about those things from someone with direct knowledge about them. He said that caring for country is about making sure country doesn’t get destroyed and about having a say in what happens to country. He believed that Kapurn people “should be asked permission to do things on country”.

737    Gary Sambo said that, when Uncle Phil Donaldson was alive, he was the person you would go to if you wanted to know something about country:

Anyone who wanted to do anything on Country would need to sit down and speak with him first. If someone was going out shooting, they would need to see him first before they went out, because he would stop you getting in trouble both ways; with blackfellas and with whitefellas. He was well-respected with all the pastoralists and he stopped a lot of vandalism that was happening with them, things like parties and sheep-stealing. He was good mates with the local Sergeant and worked with him to stop anything bad before it happened. If he saw anyone doing anything wrong he would get straight onto it and pull them up. His role was a very respected role.

738    Gary Sambo said that he knew of sites of significance to Kapurn people, but that he didn’t want to answer questions or talk about where or what they are. He said that he didn’t learn too much about the Kapurn people’s special places. He was taught that no one has the right to talk about the Kapurn people’s special places. He said that “there’d be all sorts of bad things happen to people who talk about these things; they’d have all the world on them”.

739    As a child, he was taught where he could and could not go, including where he couldn’t go hunting. He was taught that he shouldn’t even think about going to these special places. He gave the following evidence:

I was told about swimming holes and rock holes, where kids had to be quiet and not make a lot of noise. I tell that to people now. There are some rockholes around here near Coolgardie and I tell people you have to be out of there around sundown. If you don’t, a big wind will come up and let you know you shouldn’t be doing what you are doing. You have to be careful in those places because our old people used to camp in those places and some of them died there. There are places I have been where I have heard the spirits of the old people singing out; when you hear that, the old people are warning you off going there.

Not long ago, I heard that when my grandkids were out at Wanjine Soak having a picnic and making noise and the wind came up. I went right off at them when I heard about that.

There is a spot just up the road from Coolgardie called Wollaroo … where you should never make a big noise at night. You will get sick if you go mucking around up there. There are plenty of little places around Kaparn Country like that.

740    Gary Sambo said that he was told stories about lakes at the boundaries of Kapurn country that explain how country was created. However, he did not know many of these stories.

741    Gary Sambo said that there are a lot of important places on Kapurn country where people are buried and that it is important to speak to people who know where those people are buried to ensure that you don’t disturb them. He deposed that:

There’s a lot of people buried out at the big bush camp near Coolgardie where Dad grew up. It’s just above where the hospital is now, on the south edge of Coolgardie. It’s not like a cemetery with people buried in rows; people were buried where they died. That’s an important place and people shouldn’t go there. That is a big story there about our family and that makes that place important.

742    Gary Sambo said that he was taught when he was growing up that birds and the wind tell you when you’re doing the wrong thing. He said that the bibum bird comes at night to warn you when something is about to happen. He said that it’s important to listen to what the bibum tells you and that’s why it’s important not to make noise at night.

743    Gary Sambo said that he was taught that he could not leave an empty hole in the ground, that he would need to fill it in.

744    Gary Sambo said that there used to be rules about who you could marry, so that people would not marry people they were too closely related to. He said that “people had gone away from those rules”.

Knowledge of country and use of resources

745    As noted above, Gary Sambo said that Lake Koorkoordine was Granny Shep’s country. He said that he camped out in that area with Granny Shep lots of times when he was growing up. He said that:

[Granny Shep] sat me down and told me about his Country. He told me that in the springtime, when the sun comes out, you get all the bardis (witchetty grubs) coming out. He would walk me around and show me how to find them, by looking at the bottom of the bushes and finding where the wings of the adults are lying from where they have moulted after they had laid. You dig in there and you find them burrowed in the roots of trees. You get them in the spring, before they come out to go and breed. That would have been a feed place in the old days, where people could get all the bardis when the time was right. It would have been a great place to camp, because there's everything there, especially in the spring. There was an old soak out there; it would have been a really nice one, but the explorers busted it up on an expedition and it was made into a government well.

746    Gary Sambo said that when he was young, his people hunted with kangaroo dogs, not rifles. He said that the dogs were trained to herd kangaroos towards us. He said that dogs weren’t trained to do this anymore.

Davina Mary Sambo

747    Davina Mary Sambo made a statement dated 25 August 2023 which was tendered in evidence. She gave evidence at the Kalgoorlie Town Hall on 16 October 2023 and was cross-examined.

748    Davina Sambo resides in Port Lincoln in South Australia.

749    I found Davina Sambo to be an honest witness. She was quietly spoken and she stated clearly where she did not know something or was unable to answer a question. I accept her evidence.

Biographical background

750    Davina Sambo was born on 7 April 1955 at Southern Cross Hospital. Her mother was Linda Champion and her father was William Sambo.

751    Davina is a sister of both Elizabeth Sambo (whom Davina Sambo calls CB) and Gary Sambo. Davina Sambo has five other brothers and sisters: Dennis Sambo, William Sambo Jr, Shirley Trott (née Sambo) and Desley Richards (née Sambo). Davina said that her parents also raised her cousin, Timothy Champion, who was the son of her mother’s sister, Kathleen. Davina said that Aunty Kathleen passed away in 1964 when Timothy was about six months old. Davina’s family called Timothy by the name Saul. His father was Shephard Dimer, a Ngadju man.

752    Davina Sambo’s paternal grandparents were Lucy Sambo and Cordi Sambo. Davina expressed her belief that Lucy was born in Kalgoorlie and was Kapurn. Davina said that Lucy’s father was Broad Arrow Tommy (also known as Udaji). Davina said that Cordi, also known as Nullagine Sam, was originally from the Pilbara. He met Lucy Sambo when he worked as a police tracker with her father, Broad Arrow Tommy. Cordi died in 1959 and is buried at the Coolgardie cemetery.

753    As noted above in the context of Elizabeth Sambo’s evidence, there is reason to believe that the name of Lucy Sambo’s father was Muradi rather than Udaji.

754    Davina Sambo said her maternal grandparents were Elsie and Ted Champion. Ted Champion’s mother was Nellie Champion.

755    Davina Sambo said that her father, William Sambo, grew up in Coolgardie and Kalgoorlie, and was cared for by his maternal aunt, Granny Mary, whom he called Mumminga. Davina explained that was why her middle name is Mary. Davina said that Granny Mary was married to Granny Shep Knowel. As discussed elsewhere, Charlie Knowel’s family name was also spelled Nowa, Now and Gnow (and he was also referred to as Charlie Shepherd and Charlie Maddcok). Davina explained in oral testimony that ‘Granny’ is used as a term of respect for both female and male elders.

756    Davina Sambo said that her mother, Linda Champion, grew up in Kellerberrin, Kwolyin, Ardath, Babakin, Badjaling, Bruce Rock, Shackleton, Muntadgin, Merredin and Southern Cross.

757    Davina Sambo said that she has never been married, but was in a de facto relationship with Brenton Richards for 37 years. She has 7 children (Tosha Sambo, Vera Richards, Belinda Richards, Jenna Richards, Sheldon Richards, Tyson Richards and Jayden Richards), 15 grandchildren, 4 great-grandchildren, and 4 foster grandchildren. Davina’s children grew up in Port Lincoln, Kalgoorlie and Coolgardie. Her eldest daughter, Tosha, was born in Kalgoorlie Hospital in 1973. Her remaining children were born in Port Lincoln, from 1982 to 1991. Davina Sambo said that, as a family, they always went back to Kalgoorlie and Coolgardie for extended holidays, including Christmas holidays, school holidays, and to attend family funerals and other family events. In oral testimony, Davina said that her children are traditionally connected to Wirangu and Barngala country, as well as Kapurn country, because their father and grandfather are Wirangu people and their great-grandmother is connected to Barngala country.

758    Davina Sambo moved to Port Lincoln at the end of 1973, where she has spent most of her life apart from the following periods: for a period around 1975 when she moved back to Kalgoorlie; from 1999 until 2004 when she worked at the school in Coolgardie; and for 18 months between 2010 and 2011 when she worked at the Windarling mine (within the trial area). She has lived in Port Lincoln since the beginning of 2012. However, she refers to Kalgoorlie and Coolgardie as home. Davina’s eldest daughter, Tosha, lived in Kalgoorlie from 1996 until 2017, and her other children have lived in Kalgoorlie and Coolgardie on and off at different times. She currently has one son who lives in Kalgoorlie.

759    Davina Sambo said that growing up, she spent the majority of her time in the bush. She grew up in Coolgardie and Kalgoorlie. Her parents bought a house in Coolgardie in 1956, where she lived until 1964, when she moved to Kalgoorlie. She was in Kalgoorlie from 1964 until 1973. Davina Sambo said that she travelled extensively throughout her childhood due to her father and brothers having shearing roles at different locations, including Turkey Hill Farm and Unkovich Farm (located outside of Southern Cross), Remlap Station (north of Southern Cross), and Mungari Station (between Coolgardie and Kalgoorlie). Davina started her education via correspondence at Remlap Station in 1962. In the same year, she started attending primary school at the Coolgardie Primary School.

760    Davina Sambo said that her father, William Sambo, had four brothers and one sister. Uncle Willie was the oldest, but she never met him as he passed away when she was one year old. Davina met her father’s younger siblings, Arthur, Cadley, Berty, and Rita. Davina spent holidays with Uncle Arthur at Carbine Station (between Coolgardie and Ora Banda), Credo Station and Widgiemooltha. Davina also spent holidays with Uncle Cadley at Hampton Hill Station.

761    Davina Sambo spent time with her mother’s (Linda Champion’s) family on brief visits while growing up, including with her grandparents, Grandma Elsie and Pop Ted Champion, and her mother’s siblings, Kathleen, Neil and Dave. Davina said that her mother had a close relationship with those siblings as they were close in age. Linda Champion’s other brothers and sisters, Ben (Malcolm), Gertie, Brian Snr, Tim and Greta, were younger and closer in age to Davina’s older siblings. Davina also remembered Granny Jack Champion, who was Pop Ted’s younger brother, and his family.

762    Davina Sambo referred to other old people whom she remembered growing up, including Don Roundhead, Noona Roundhead, Cecil Wilson, Nyoody Paddy, Dick Donaldson and Snowy Nunkanah.

Kapurn people

763    Davina Sambo said that she is a Kapurn person. She said that she grew up on her father’s country and he told her that she was Kapurn. Davina also said that the old people used to call them gubbultha (Kapurn children). She said that she takes her identity from her father’s side as she was born on and grew up in his country. Davina said that her children, grandchildren, her father’s siblings and their children and grandchildren are all Kapurn. The majority of Sambo descendants Davina Sambo knows are Kapurn.

764    Davina Sambo said that ‘Gubrun’ and ‘Kaparn’ mean the same thing. She said that ‘Gubrun’ is the way she writes the word as this is how she was taught to write it when she participated in Barngala language programs.

765    In relation to the word ‘Karlamaya’, Davina Sambo said that her mother may have used that word infrequently, but she does not remember her father ever using it. He would always just say ‘Kapurn’.

766    Davina Sambo said that she never heard the word ‘Karlaku’ growing up and that she only heard it for the first time around 1999, when native title claims started using that name.

767    Davina Sambo said that she remembers visiting Dorothy Donaldson when she was growing up. She said that her father told her that their family was connected to the Donaldson family, especially Aunty Dorothy Donaldson, Uncle Phil Donaldson, Uncle Bob Donaldson, Uncle Henry Donaldsons and Uncle Kingie (Clem Donaldson). Davina Sambo’s father told her that they were part of their family, in the same way that Granny Don Roundhead was.

768    Davina Sambo said that the ancestors of the Kapurn people are Lucy Sambo for the Sambo family and Warada and Kaddee for the Donaldson family. Davina said that Granny Don Roundhead and Granny Cecil Wilson were Kapurn, because they are connected back to Kaddee and Warada. She said that Granny Dick Donaldson was not Kapurn, but he married into the Kapurn people.

769    Davina Sambo said that Granny Nyoody Paddy was from Mukinbudin and was of Ted Champion’s family. Davina’s father told her that Granny Nyoody Paddy was from Davina’s mother’s side. Davina said that her father was always clear as to whether someone was from his family or her mother’s family. I infer that “Granny Nyoody Paddy” is Charlie Paddy, whom Brian Champion Snr referred to as Uncle Noodi.

770    In relation to her mother’s family (the Champion family), Davina Sambo said that her mother told her that Nellie Champion was her great-grandmother. Granny Nellie Champion passed away when Davina Sambo’s mother was very young. In her written evidence, Davina stated her belief that the Champion family are from places west of the Kapurn boundary, near where Davina’s mother grew up. She said that she was not “passed down anything” about her country from the Champion side of her family, and that she had never been out in the bush with the Champion family. Davina Sambo said that she knows the people and the families that she is connected to on that side, but is otherwise not connected to them. Davina said that her father would always refer to the Champion family as “your mother’s family”, and made clear that there was a difference between the Champion family and his family. However, in her oral testimony, she agreed that her sister, Elizabeth Sambo, was more knowledgeable than she was about Kapurn country, and therefore she agreed with Elizabeth’s evidence that their mother, Linda Champion, was a Kapurn person, and that their great-grandmother, Nellie Champion, was a Kapurn person.

Kapurn country and language

771    In her written evidence, Davina Sambo said that she was taught about Kapurn country by her father, who was taught by his elders. She expressed the belief that Kapurn country includes Coolgardie, Kalgoorlie, Kambalda and Southern Cross, and that the boundaries of her country are as follows: east to old Kanowna Town; north to Daveyhurst; south to Widgiemooltha; and west to Southern Cross and Lake Koorkoordine. However, in oral testimony, Davina agreed with the view expressed by her sister, Elizabeth Sambo, that Kapurn country extends from Kalgoorlie across to Mukinbudin. Davina said that her mother, Linda Champion, told stories that related to the area around Mukinbudin.

772    Davina Sambo said that her language is Kapurn, but she cannot speak it. She said that her father and Uncle Cadley spoke Kapurn. She heard her father, Uncle Phil Donaldson, Uncle Kingy (Clem Donaldson) and Aunty Dorothy Dimer yarning in Kapurn one day, but she explained that elders normally never spoke Kapurn in her presence.

773    Davina Sambo said that she asked her father how to say the names of body parts, trees, animals and places in Kapurn. Some of the words she knows are: warnu (home / shelter), thurgal (Dreaming), billarng (black bird, a big raven), pira (moon), jiti jiti (willy wagtail), bigadu (red rock wallaby), jina (foot) and thaa (tongue / mouth). Davina said that she knows those words from her father and from hearing them being spoken when she was growing up.

Kapurn laws and customs

774    Davina Sambo said that, as a Kapurn person, she has the right to go hunting, camping and to gather food and bush medicine on her country. She has the right to educate her children, grandchildren and great-grandchildren about her country. She said she regularly goes on trips to her country to do these things.

775    Davina Sambo said that she and her siblings have the right to speak for her country. Davina said that everyone of Kapurn descent can speak for Kapurn country.

776    Davina Sambo noted that where people want to visit her country, they should speak to her older siblings first. She said that while things have changed in relation to acknowledgement and respect, it is still important to speak to people who know about where to go and where not to go on country.

777    Davina Sambo gave the following evidence about ‘caring for country’:

Caring for Country is a practice I believe that has been passed down from generation to generation and which I’m still learning today, from those older than me. I truly see it as a sense of belonging physically, spiritually and connecting to my Country, which includes continually visiting those places that hold memories and stories that I am still passing down to my children, grandchildren, and extended family. We ensure we treat the Country with respect including the water sources, plants, animals, and the rules of leaving places in a clean state, leaving before dark and all those stories passed onto me from my past to present day.

778    Davina Sambo said that she was taught these rules by her father. He told her that if you go to a rock hole and there is a snake there, you cannot remove that snake, or else the water will dry up.

779    Davina Sambo said that she was not told about “lore men” when she was young, but as she grew up people started talking to her about them. She remembers her father telling her late in his life that the last two people that went through Kapurn “lore” were Uncle Willie Sambo and Uncle Phil Donaldson. Davina became aware that Pop Ted Champion was a “lore man” too, but her father told her that he was different to Uncle Willie and Uncle Phil. Davina Sambo said that the old people did not talk about it often, especially to women.

780    Davina Sambo said that she did not get the opportunity to learn the proper kinship rules about who can marry who, and which moiety can marry which moiety. She said that she knew who her family was related to and ensured that partners are not connected back into family lines.

781    Davina Sambo explained what to do when you visit important sites:

When you visit these important sites, even if you are just visiting or taking family there, you have to talk to your ancestors, tell them who you are when you go visiting sites, let them know that you are there and ask for their blessings. My Dad, my older brothers and [Elizabeth Sambo] told me that. Everyone does it in their own particular way.

No one should remove/take anything from these sites, because you don’t know what you are picking up. A lot of people take things home and weird things happen to them. It’s the same with things from other places. I was messing around cleaning the house the other day, and I found a boomerang my ex son-in-law from Alice Springs had left here. My son yelled out to me. ‘Don’t touch it!’ So it’s still there.

782    Davina Sambo said that she knows about good and bad spirits in her country. Some spirits she knows from stories and others from her own personal experiences. Davina’s father told her about where spirits were active. She said that he told her not to go to certain places at certain times. Davina Sambo gave evidence about an important place called Gnarlbine, south-west of Coolgardie. Davina said that she did not know the specifics about the place, just that one should not go there. She remembered hearing that Uncle Cadley was with the family out there and then he realised he should not be there and left in a hurry.

783    Davina Sambo provided the following evidence in relation to rules and stories she was told as a child that relate to spirits:

We were told you had to be quiet when you were outside at night. We were told that you shouldn’t play with firesticks around the campfire. If you do, bad things will happen to you. Even now those rules are important. One of my grandsons was standing out the front of my house in the dark and wanted to whistle, and I said ‘don’t you dare!’. He asked why and I told him I was sick of telling him not to, and that it was bad luck. It was also told to us kids growing up that were not allowed to draw on the ground at night. Dad would tell us off if we did it because he said it was bad luck too.

The billarng bird makes horrible sounds night, screeching noises. When you hear that it means you have to go inside and go to bed. Dad and Dennis told me the billarng was bigger back in the day, much bigger than it is now, and it used to snatch children.

Knowledge of country and use of resources

784    Davina Sambo said that while she used to see her mother making bush medicine, it was her sister, Elizabeth Sambo, who taught her which plants to use and how to use them. She taught Davina how to find bardis (witchetty grubs), berries and quandongs, and explained which ones were poisonous. Davina’s mother taught her how to make damper and kangaroo stew. Davina’s daughters now make damper too. Davina said her father and Elizabeth also used to make kangaroo pudding with the blood and the fat in the stomach.

785    Davina Sambo said that she took her children on a hunting trip each time they visited Kalgoorlie. Her children learnt how to kill a kangaroo, hang it up on a tree and skin it from her brothers and brothers-in-law. Her children can now prepare a kangaroo themselves.

786    Davina Sambo recounted that bush outings were a family event, in which many family members would drive out to the bush in a big convoy and spend several days out there at a time. Davina said that this tradition still happens today each time that she goes back to Kalgoorlie with her family. When her boys go back to Kalgoorlie by themselves, they go out hunting with their cousins as well. Davina said that they also go out bush when they return for funerals.

787    Davina Sambo said that there were several important sites that still held significance. She noted the birthing place on the south side of the Coolgardie Hospital, where her father was born, and also an old Kapurn burial ground in the sand plains near Burbank Road, Coolgardie. Davina said her father used to get mad at her when she went near that burial ground and she still warns people against going near it.

788    Davina Sambo said the places where her elders camped are important, including Southern Cross reserve, the old Coolgardie reserve near the pipeline, and the other Coolgardie reserve near the reservoir. Davina’s parents camped at those places and told her about them. Davina said: “You can still feel those old people there when you visit them”.

789    Davina Sambo said that the corroboree grounds are also important places, including the grounds at Southern Cross and Mount Jackson. Davina’s father, brothers and sister, Elizabeth Sambo, told her where the important corroboree grounds were located. Davina said that her mother also talked about the Southern Cross grounds, and noted that they are still important because they are part of the elders’ stories.

790    Davina Sambo also said that rock holes in Kapurn country are important places. She listed several rock holes on Kapurn country that were significant, including the water source at Burras Rock, the rock hole at Kunanalling (where she used to go with her family often), Kulkurti rock hole in Coolgardie near Warden Finnerty’s house, and Wangine Lake, when it is full of water.

791    Davina Sambo said that she knows about other important sites on Kapurn country, but these are not meant to be spoken about, especially sites that relate to women’s business. There are things that you are allowed to know and things that you are not allowed to know. Davina noted that because many of the old women have passed on, she was not told much of the information about sacred sites that she should have been told. Most of what Davina knows is from her sister, Elizabeth Sambo.

Lillian Bonney

792    Lillian Bonney (née Sambo) made a statement dated 26 August 2023 which was tendered in evidence. She gave oral testimony at the Kalgoorlie Town Hall on 17 October 2023 and was cross examined.

793    Ms Bonney resides in Esperance, Western Australia.

794    I found Ms Bonney to be an honest and sincere witness. Although her evidence was limited, she made appropriate concessions where she did not know the answer to the question being asked. I accept her evidence, save for certain aspects which I address below.

Biographical background

795    Ms Bonney was born on 23 August 1960 in Norseman, Western Australia. She was married to Arthur Bonney, who is now deceased. Their children grew up in Esperance and Ms Bonney still lives there.

796    Ms Bonney’s parents were Desmond Sambo and Rosina Charlotte Sambo (née Humphries).

797    Ms Bonney’s paternal grandparents were Willie Sambo and Lilly Sambo (née Ellis). Lucy Sambo was Ms Bonney’s paternal great-grandmother (Willie Sambo’s mother). Ms Bonney’s grandfather, Willie Sambo, died a year or two before she was born. Ms Bonney’s father, Desmond Sambo, grew up in Coolgardie and worked and lived in different areas.

798    Ms Bonney’s maternal grandparents were Mabin Humphries and Mable Humphries (née Yarran). Ms Bonney said that her maternal grandparents were from the Wheatbelt Region, around Kellerberrin, and were Noongar. Ms Bonney’s mother grew up in the Kellerberrin Wheatbelt Region.

799    Ms Bonney said that she grew up in Southern Cross, Coolgardie, Kalgoorlie, Norseman and South Australia. She said that her family moved around a lot while she was growing up because the Native Welfare Act required her parents to move around for work. As a child, she lived in the bush in Coolgardie. She said that she moved to Southern Cross when she was approximately three or four years old. She attended primary and high school in Kalgoorlie, during which time she and her family lived with her paternal great-uncle William Sambo and his family. She said that, when she was approximately 15 years old, she and her family moved to Norseman, because her paternal grandfather’s sister, Rita Rule (née Sambo), married a man from Norseman and moved there. She went to high school in Esperance. She also spent some time living in South Australia while she was growing up.

800    Ms Bonney said that the “old people” who were around when she was growing up included her paternal grandfather’s siblings, William Sambo, Arthur Sambo, Cadley Sambo, Rita Rule and Herbet Sambo. Ms Bonney also remembered that she regularly visited Dick Donaldson (whom she called “Granny DD”), Dorothy Dimer (née Donaldson) and Dorothy’s children. Ms Bonney also remembered growing up around Don Roundhead and his wife Noona. The “old people” that Ms Bonney remembered as being important in the community, and who had a lot of knowledge about traditional ways and/or spiritual matters, were her grandfather, Willie Sambo, Dick Donaldson and Phil Donaldson. She said that they were “law men”. She was told that Willie Sambo and Phil Donaldson were the last initiated elders.

Kapurn people

801    Ms Bonney is Kapurn and Noongar through her parents and grandparents. She said that a person is Kapurn by descent. Ms Bonney was told by her elders on her father’s side that she and her family are Kapurn people because they are descendants of Lucy Sambo. Those elders are her father, Desmond Sambo, and her father’s aunties and uncles (William, Rita, Herbert and Cadley), and her aunties (Davina and Elizabeth).

802    Ms Bonney said that she is also Noongar because her mother is a Noongar / Ballardong woman. She said that her siblings are also Kapurn and Noongar.

803    Ms Bonney said that the Sambo and Donaldson families and their descendants are Kapurn people and come from the same country as her. Ms Bonney said that her father and other elders told her that she is connected to the Donaldson family because her great-grandmother Lucy Sambo and Alice Minjin (whom Ms Bonney referred to as Alice Donaldson) were sisters. I do not accept that evidence in so far as it suggests that Lucy Sambo and Alice Minjin were biological sisters. No other witness gave that evidence and none of the historical evidence supports a finding that Lucy Sambo and Alice Minjin were biological sisters. It is possible that Ms Bonney’s elders were referring to a form of classificatory sister relationship between Lucy Sambo and Alice Minjin. Other evidence, referred to later in these reasons, indicates that there was a close relationship between Lucy and Cordi Sambo on the one hand and Dick Donaldson and Alice Minjin on the other. In an interview with Stuart Fisher in 1992, Phil Donaldson spoke about how his father, Dick Donaldson, “reared Willie [Sambo] up” and used to work with him out at Pinjin Station, and how Willie and Phil went through Kapurn law at Coolgardie.

804    In her written evidence, Ms Bonney expressed the view that, while the Champion family were connected to the Sambo family through marriage, they were not from the same country as the Sambo family. However, during cross-examination, it became clear that Ms Bonney did not know the Champion family very well. Ms Bonney said that she could not say whether the Champion family were Kapurn, because she did not know.

805    Mr Bonney said that the words ‘Kaparn’ and ‘Gubrun’ have the same meaning, but she is more familiar with the spelling ‘Gubrun’.

Kapurn country

806    Ms Bonney said that her country (as a Kapurn person) is the area all around the towns of Southern Cross, Coolgardie and Kalgoorlie. She was told that those areas are her country by her father, other Sambo elders and other elders from the Spinifex area.

807    Ms Bonney said that she was told by Kapurn elders, as well as elders from the Spinifex area and Norseman, that the boundaries of her country are from the eastern side of Southern Cross in the west to the Kalgoorlie area to the east. She said that Widgiemooltha, Kanowna, Goongarrie and Mount Jackson are in Kapurn country. I do not accept Ms Bonney’s evidence in relation to the western boundary of Kapurn country. As noted earlier, the weight of the lay witness evidence overall and the expert anthropological evidence discussed in these reasons supports the conclusion that Kapurn country extends west of Southern Cross.

Kapurn laws and customs

808    As noted earlier, Ms Bonney said that a person is Kapurn through descent from a Kapurn person.

809    Ms Bonney said that, as a Kapurn person, she has rights in her country, including the right to be included in the decision-making over what happens on Kapurn country. She said that her elders, her family, her sibling and she herself are allowed to speak for country.

810    Ms Bonney said that if people visit Kapurn country, there are certain rules that must be followed. Visitors must first speak to Kapurn elders and families who belong to Kapurn country.

811    Ms Bonney said that her father and other Sambo elders told her stories about important sites on their country. Some sites are men’s sites and some are women’s sites. These sites are important because they are part of Kapurn cultural heritage, history and tradition. She said that there are rules about visiting these sites. You are not allowed to remove or take things from those sites to other sites, areas or country.

812    Ms Bonney said that she has always been told by her parents and elders that there are certain things that she is not allowed to speak about, such as men’s business, things that relate to certain sites, and areas that have traditional law. Ms Bonney said that she has been told about a women’s birthing site on Kapurn country, but she has not been shown it.

Trevor Henry (Pumpum) Donaldson

813    Trevor Henry Donaldson made a statement dated 18 September 2023 which was tendered in evidence. He gave oral testimony at the Kalgoorlie Town Hall on 16 October 2023, and was cross-examined.

814    Trevor Donaldson resides in South Kalgoorlie.

815    In his written evidence, Trevor Donaldson expressed strong views about the significance of laws and customs in the eastern part of the trial area. I consider that Trevor Donaldson sincerely holds those views, and that he takes seriously his responsibilities as a custodian of sacred places within that area. In oral testimony, however, Trevor was circumspect about identifying the Aboriginal people who hold traditional rights and responsibilities in the eastern part of the trial area. Trevor was confident that the descendants of King Billy hold rights and responsibilities, but expressed considerable uncertainty about others. Trevor was uncertain about the people who hold rights and responsibilities for the area around Southern Cross, and my impression was that he did not wish to speak for that area. In that respect, I considered Trevor to be an honest witness, who made appropriate concessions about the extent of his knowledge, and stated clearly when he did not know the answer to a question or when he was being asked about a matter on which he could not speak. I accept his evidence, save in certain respects referred to below.

Biographical background

816    Trevor Donaldson was born on 3 January 1956 in Kalgoorlie. Trevor Donaldson’s parents were Henry Donaldson and Olive Donaldson (née McGrath).

817    Trevor Donaldson’s paternal grandparents were Dick Donaldson (whom he called “Ngoornie”) and Alice Minjin Wilson, whom Trevor said was King Billy’s daughter.

818    Trevor Donaldson’s maternal grandparents were Bricky McGrath and Mary. Trevor does not remember Mary’s last name before she was married.

819    Trevor Donaldson said that he is a Ngadju man and a Karlaku / Karlamaya man. He said that he is a Ngadju man through his paternal grandfather, Dick Donaldson, which gives him a connection to the Norseman area. He is Karlaku / Karlamaya through his paternal grandmother, Alice Minjin Wilson, through whom he believes he is related to Kaddee and Warada. He was told by his “old people” while he was growing up that he has a strong connection to the Kalgoorlie and Coolgardie area.

820    Trevor Donaldson said that his traditional name is “Pumpum” which he was given by a senior Ngadju man from Norseman named Pumpum Schultz.

821    Trevor Donaldson said that his father, Henry Donaldson, was a stockman and labourer. Olive Donaldson was employed by the family that owned Hampton Hill Station to clean and undertake other domestic duties.

822    Trevor Donaldson’s wife is Ellen Donaldson (née Ashwin). During oral testimony, Trevor said that his wife is related to the Cooper family (although he was not sure how they were related).

823    Trevor Donaldson said that his “old people” gave him his totem, the ngoor-ngoor (tawny faced owl), which is named after the sound it makes. Trevor said that having this totem gives him a sense of connection to the “old people” he shares it with.

824    In his written evidence, Trevor Donaldson said that he is the oldest surviving male of the Donaldson family. During oral testimony, Trevor acknowledged that his cousin, Henry (Ricky) Dimer, is a member of the Donaldson family (Ricky’s mother was Dorothy Dimer née Donaldson) and is four years older than Trevor. Trevor clarified in the course of oral testimony that he is the oldest surviving male of the Donaldson family with the surname Donaldson.

825    Trevor Donaldson said that he was raised by his mother and father in Widgiemooltha. In the Karlamaya / Karlaku language, widgie means crow, and mooltha means nose. There’s a large hill near Widgiemooltha which has a resemblance to a crow’s nose, which is where the town gets its name. Trevor Donaldson said that Widgiemooltha is a very powerful place.

826    Trevor Donaldson attended high school in Kalgoorlie. When he was in year nine, he stayed with his “Thamu Ngoornie” (thamu means grandfather and Ngoornie is how he referred to Dick Donaldson) in his shack in Coolgardie and would catch the bus from Coolgardie into Kalgoorlie each day to go to school. He said:

Thamu Ngoornie was a proper wati man. He had law markings on his body. I wasn’t allowed to go into his room when he didn’t have his shirt on, because the markings are sacred. And when he had visitors come to visit to talk about law business, I would have to go and stay with my Aunty Dorothy Donaldson in Coolgardie.

827    Trevor explained that a wati is an initiated man who has membership to certain rights, stories, songs and sites.

828    Trevor Donaldson worked at the Goldfields Land and Sea Council for about 13 years. In that capacity, he was involved in the Ngadju and Mirning native title claims.

829    At the time of giving evidence Trevor Donaldson was employed by the West Australian Country Health Service managing the Kalgoorlie Renal Hostel, where he had worked for three years. Trevor said that the residents at the Hostel are a mixture of language groups, including Ngaanyatjarra, Tjuntjuntjara and Mardu. It was noticeable that Trevor did not refer to Karlamaya, Karlaku or Kapurn people residing at the Hostel. That omission was not explained. When asked if he had learned other languages, Trevor said that he had worked a lot with Ngaanyatjarra people and he had been out on their lands. I understood Trevor to intimate that he could converse with Ngaanyatjarra people, and I infer that he did so in the Wongatha language.

830    Trevor Donaldson said that he can’t speak the Karlamaya language or the Ngadju language. He said that the only remaining fluent Ngadju speaker had been his great Aunty Dorothy (Dorothy Dimer). However, Trevor said that he does know a number of words in the Wongatha language. In the course of giving his evidence, Trevor used a number of Wongatha words (for example, wati, wati purlkanya and tjukurpa).

831    As noted above, the family name of Trevor Donaldson’s wife is Ashwin, and Trevor believes that he is related to the Cooper family. It seems likely that the relationship comes through the Cooper respondents’ paternal grandmother, who was Trilby Ashwin. As discussed below, Gary Cooper’s mother was a Ngaanyatjarra person, and Gary Cooper’s evidence was that she spoke the Wongatha language, which Gary Cooper also speaks. In the course of oral testimony, Trevor described the Cooper family as his wife’s family. The personal relationship between Trevor Donaldson and the Cooper family has some significance in assessing his evidence, as discussed below.

Karlamaya country

832    Trevor Donaldson’s written evidence concerning the extent of Karlamaya country was qualified. He said that he had heard his “old people” speak of country extending beyond the places that he was sure of. Nevertheless, he gave the following descriptions of country that he was “sure of”. Trevor said that he believed his country extends west to somewhere around Boorabbin, south-west down to around Thursday Rock and Victoria Rock, across to Cave Hill and then towards Widgiemooltha and across to Lake Lefroy. He said the eastern boundary is around Kambalda West, extending up and out to near Mount Monger and then further north to Hampton Hill Station and the western end of Lake Yindarlgooda. From there, Trevor said his country extends north in an outer curve around Goongarrie and across Comet Vale. In his written evidence, Trevor said that the boundary line then heads south-west toward Bungalbin and out to Mount Jackson, before returning to the Boorabbin area.

833    During cross-examination, Trevor Donaldson’s evidence changed in two respects. First, counsel for the Karratjibbin applicant suggested to him that Karlamaya country did not go as far west as Mount Jackson. Trevor appeared to agree with that suggestion. Second, counsel for the Cooper respondents suggested to Trevor that the eastern part of the trial area is part of the Cooper family’s country, to which Trevor replied “possibly”.

834    Having regard to the weight of the lay witness evidence overall and the expert anthropological evidence discussed in these reasons, I do not accept Trevor Donaldson’s evidence with respect to the boundaries of Karlamaya country in the west of the trial area, or the claimed interests of the Cooper family in the eastern part of the trial area. Trevor’s evidence concerning the western side of the trial area is contradicted by a large body of lay and expert evidence. I consider that Trevor’s evidence with respect to the Cooper family’s country was influenced by his personal connection with the Cooper family, through his wife. In his written evidence, Trevor clearly identified the eastern part of the trial area as Karlamaya Karlaku country, and his family’s country. In cross-examination, he said that the area was “possibly” part of the Cooper family’s country. Trevor gave that answer despite the fact that neither he, nor counsel for the Cooper respondents, identified the Cooper family as being Karlamaya or Karlaku people.

Karlamaya people

835    Trevor Donaldson said that Thamu Ngoornie (Dick Donaldson) was a Ngadju man from the east who married his grandmother, Alice Minjin Wilson, a Karlaku / Karlamaya woman. He said that, instead of the usual customary practice where the woman moves to the man’s country on marriage, his grandfather moved to his grandmother’s country. Trevor said that Alice Minjin’s father, King Billy, bestowed custodianship rights of the Coolgardie and Kalgoorlie area onto Dick Donaldson.

836    In oral testimony, Trevor Donaldson agreed that all of King Billy’s descendants have custodial rights and obligations regarding country.

837    Trevor Donaldson said that he grew up with members of the Sambo family, including Elizabeth Sambo (whom he called “CB”) and Elizabeth’s father William Sambo (whom he called “Uncle”). Trevor said that Elizabeth Sambo called his father (Henry Donaldson) “Uncle”. Trevor Donaldson said that he believes that his family is related to the Sambo family, although he is unsure how their families are related.

838    Trevor Donaldson said that he is also related to the Wilson family through Uncle George Wilson and Uncle Cecil Wilson, who are related to Trevor’s paternal grandmother Alice Minjin Wilson. He said that the Wilson family is connected to the Kalgoorlie and Coolgardie area.

839    In his written evidence, Trevor Donaldson expressed the opinion that the Champion family do not have a traditional connection to the Coolgardie area and that they come from around Southern Cross or west of there. However, during cross-examination, Trevor Donaldson accepted that it is possible that the Champion family is connected to the Coolgardie and Kalgoorlie area, because he does not know how all of the families from that area are related.

Karlamaya laws and customs

840    Trevor Donaldson said that his Thamu Ngoornie and his Uncle Phil Donaldson were watis. He said that Thamu Ngoornie was a wati purlkanya, a big lawman. He said that when people from other places wanted to travel through “our country”, his grandfather was the “go to” person. Trevor Donaldson said that these two men (Dick Donaldson and his son, Phil Donaldson) taught him a lot of the cultural aspects relating to his family. He said:

I was taken to various Country and sites on our Country by Uncle Phil Donaldson. He taught me what to do and what not to do when visiting these sites. He passed on custodianship of these places to me. He also instructed me as to which sites and areas that I should not enter. I was honoured to be taught these things.

841    Trevor Donaldson said that a lot of his generation did not go “through the law” because his grandfather Ngoornie forbade the continuation of initiation of young men. Regarding his grandfather’s reasons for ending that practice, Trevor said:

One of his reasons was he wanted future generation to get a good education and another reason is that he adopted Christian beliefs.

A further reason was that the white man’s law at the time forbade the teaching of culture. We were forbidden to talk language. If we were caught, we would be forcibly removed and put in missions. For the Goldfields area, the mission was at Norseman. Because of the welfare mentality back then, when we were staying in a town, we did not practice culture or speak language for fear of forced removal. Only when we went on Country we could act like blackfellas.

842    Trevor Donaldson said that although he was uninitiated, he was treated with respect because he was the grandson of Ngoornie. He said:

I hold an honorary position. I was accepted by other knowledgeable people who taught me culture that I thought I had lost. While I was not taught and shown everything, I was imparted much of the knowledge that initiated men would have been given. Because of who I was, I was also embraced by knowledgeable people from areas outside my Country and given some of their cultural knowledge.

843    Trevor Donaldson said that he has obligations to pass his knowledge on to his children and grandchildren. He said:

We go out bush, go camping, and I share the stories and the knowledge with them. I’ve been teaching my grandson Lloyd about the Country. He’s the oldest of his generation in my family, he’ll become the custodian. He’s got the knowledge and the understanding.

I went out with my grandson Lloyd towards Mount Monger, to go hunting and camping. We went with his mum, my daughter. We saw water trees, visited some flat areas that have a dreaming connected to it. The dreaming is about when the men went out hunting, they had difficulty getting their meat because the Country was too thick, and they were getting desperate. There was an old spirit man from the moon, he saw the men were struggling so he came down with a big boomerang, and cleared the land, and that's why it’s flat. Then the men could find the tucker. You can see that boomerang shape in the moon sometimes. It was about six months ago that we went out. And we do that every couple of months.

844    Mount Monger is on the eastern boundary of the trial area, south-east of Kalgoorlie.

845    Trevor Donaldson said that his father, Henry Donaldson, held an honorary role and knowledge of the law because of his connection to his father, Ngoornie (Dick Donaldson). Trevor Donaldson said that his father’s role has now passed to him as he is the oldest surviving male in the Donaldson family.

846    Trevor Donaldson said that, as a traditional custodian, he is responsible for looking after the tjukurpa, the songs and the stories. I note that the word tjukurpa is a Wongatha or Western Desert word for Dreaming. The evidence shows that the equivalent Karlamaya word is thoorgal (also spelled thurgal). Trevor Donaldson said that being a traditional custodian is different to being a traditional owner. He said that a traditional owner is everyone collectively who “own” the barna (country). He said that the role of a custodian is to maintain and protect sites, and to pass down knowledge to the younger generation coming through. He said:

I still go bush, and I take kids out on Country. We go hunting, go gathering, tracking, traditional cooking. All the things that were passed to me, I pass those on to my kids and grandkids. I can’t do those things as well as my dad did, but I pass it on as much as I can.

847    Trevor Donaldson said that he does not agree with the term “traditional ownership”:

My people do not talk about “owning” Country. We belong to our Country. When our old people spoke of these things, they would say, “which Country do you belong to?” or “I belong to this or that Country”. We use and care for, maintain our Country but we do not own it.

848    Trevor Donaldson said that people not from his country traditionally needed to obtain permission to enter it from those of his people with authority. If they were given permission, they could hunt and gather such food as they needed while on his country.

849    Trevor Donaldson said that ‘Marlinyu Ghoorlie’ is named after two trees. He said that marlinyu is the king of the Great Western Woodlands, the giant salmon gum, and is very sacred. Ghoorlie is the pine gum.

850    Trevor Donaldson gave evidence about his connection to his country. He said:

A lot of people who go out, they’re fearful of the Country. They won’t go out at night, because they’re scared. They see things and experience things that they don’t understand. But we don’t have fear, because we know the Country, we’re connected to it. The Country embraces you, if you do get that feeling where your hair stands on end, you know you’re somewhere that you shouldn’t be and you go away from there. And you go back to the Country you know, and it makes you feel good. I believe there are people who are fearful of the Country and the law.

851    Trevor Donaldson said that if he goes on the wrong country, he will get in trouble. He said:

If you go into a sacred area without the senior law men and women, without the knowledge holders of that Country, you could be in trouble. I would not go over to Coonana way and do something on their Country, because I’m not the right person for that, and I could get in trouble.

Knowledge of country and sacred sites

852    Trevor Donaldson’s father used to take him out hunting. He said:

[My father] was a fantastic tracker, and we’d gather bush tucker and medicines. We had an old truck that we used to take out to the granite Country. The granite Country was quite significant to our mob. It is around Higginsville, Cave Hills. A lot of those places had dreaming connections, storylines attached to them. There’s identification of sites – significant sites anyone can go to. Sacred sites only initiated people can go to, you have to have “membership” to be able to go there. The elders told me about that, about the sites. Thamu Ngoornie, my dad, my aunties and uncles. What they told you, you respected.

853    Higginsville is south of Widgiemooltha and outside of the trial area (in Ngadju country).

854    Trevor Donaldson said that his father, his Uncle Phil Donaldson and his grandfather Ngoornie taught him about their country and sacred sites. He said:

They would take me out towards Kurrawang, near the smelter there. It’s a sacred man’s site near there, a cave. I’m privileged enough to get to go into those places, a lot of our old people kept the law and passed it down. And there’s some things you don’t talk about.

There’s a site in Coolgardie called Mimitharra, that my father took me to when I was young. He told me why the site is called Mimitharra, what the significance of the site is and what our old people used to do at that site. I don’t want to go into detail about those things, because it is not appropriate for me to talk about those things with everyone, especially women.

I was offered to be shown those places by a senior law man. It was a privilege to be shown that. I was shown that because I’m Ngoornie's thamu, and I have a connection to that place. I have a responsibility not to share that knowledge.

855    Trevor Donaldson gave evidence about Mulyarri, a site north of Coolgardie which he said was connected to the Wati Kutjarra Dreaming. He said:

The two men came from Albany way, they came there and camped there. There’s a rockhole there, and a camp site. There’s a sacred cave nearby, but I can’t talk about it. My father took me there when I was a teenager, but it’s an avoidance place, only initiated men are supposed to go there. Uncle Phil (Donaldson) took me there was [sic] well, in the 80s, I was working at Ora Banda then. He picked me up in his old Landrover and we drove out there. There was something about that place that my dad and Uncle Phil wanted me to know, so that I could be the custodian for that place. I didn’t go into that place, they just pointed it out to me and told me not to go there.

From Mulyarri the Wati Kutjarra goes up to Leonora and Laverton, and then out into the desert. There’s numerous places along the way to Warburton and out to Docker River which are associated with that story. The custodians for each area carry that storyline as it goes along. When they had the ceremonies, they would dance their portion of it, then the next one would pick it up and carry it on.

856    Trevor Donaldson said that he was told that if you go to a sacred cave near Mulyarri, you could become very sick. He said that sickness from going to the wrong place on country is a sickness of the mind. He described the sickness as a feeling that plays on your mind. Trevor believes that he has the right to speak for Mulyarri because that responsibility has been passed on to him, but said that he must be careful about what he says because he isn’t initiated. He said that he has always checked with the senior law people before he says things about those places. He said:

I’ve been told many times over the years that that’s my Country, that I have the authority and belong to that Country. I don’t know if other people have a similar role, as a custodian, for their areas. But I have that role for this area. My responsibilities for there are making sure that site’s not disturbed.

857    Trevor Donaldson said that a lot of “our mob” weren’t allowed to go out to the sandplain country — Victoria Rock and the southern side of Coolgardie — because it’s spirit country. He said:

… if you go there, you’ll hear things and you won’t sleep at night. You could feel it when you went there. It’s bushfire Country too, around those areas. That was the sacred Country. We were more comfortable going north.

858    Trevor Donaldson said that ceremonies aren’t conducted at the sacred sites on his country anymore. He said that he couldn’t remember any ceremonies being conducted on his country during his lifetime.

F.4    Lay witness evidence for the Karratjibbin applicant

Introduction

859    The Karratjibbin applicant called five lay witnesses to give evidence, all of whom are members of the Karratjibbin claim group. Their evidence is considered in this section of the reasons.

860    The primary evidence on behalf of the Karratjibbin applicant was given by a single witness, Reginald Craig Yarran (who was generally referred to as Reg Yarran Jnr, to distinguish him from his father who had the same name and is generally referred to as Reg Yarran Snr). Supporting evidence was given by Reg Yarran Jnr’s cousins, Gail Yarran and Norman Pickett. However, not only was their written evidence limited, but a significant part of their written evidence was also identical, indicating that the evidence had been written by the same hand, diminishing the weight I give to the evidence. Even more limited supporting evidence was given by Jason Colbung, who is also a cousin of Reg Yarran Jnr. Some short responsive evidence was given by Glenys Yarran, the mother of Reg Yarran Jnr.

861    As noted earlier, the contentions advanced by the Karratjibbin applicant shifted markedly during the course of the trial. Two significant changes are noted.

862    First, the description of the Karratjibbin claim group was narrowed. In their concise statement dated 14 April 2023, the Karratjibbin claim group was defined as the descendants (biological or by adoption) of apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby. In their amended concise statement dated 2 October 2023 (filed at the commencement of the trial), the Karratjibbin applicant redefined the Karratjibbin claim group as the descendants (biological or by adoption) of apical ancestors Billy Yambinut and Toby. The Karratjibbin applicant acknowledged that the ancestors Polly and Eva are affinal ancestors for the members of the current Karratjibbin claim group insomuch as Polly and Eva are not known to have any current living descendants. The Karratjibbin applicant also acknowledged that Nimmo was the son of apical ancestor Toby and is not strictly an apical ancestor (as all descendants of Nimmo are also descendants of Toby). At the conclusion of the trial, the Karratjibbin applicant conceded that it had not adduced any positive evidence establishing that Toby was an apical ancestor for the purposes of the claim. Accordingly, the Karratjibbin applicant proceeded on the basis that the members of the Karratjibbin claim group are the descendants (biological or by adoption) of Billy Yambinut. A difficulty for the Karratjibbin applicant is that each of the lay witnesses who gave evidence for the Karratjibbin applicant claimed to be Karratjibbin through descent from Toby Williams (that is, Nimmo) and not Billy Yambinut.

863    Second, the claims first advanced by the Karratjibbin applicant proceeded on the basis that the Karratjibbin people were a separate group of people, with their own language, who had rights and interests in the Karratjibbin claim area. The Karratjibbin claim group is entirely separate from the Marlinyu Ghoorlie claim group as there are no common apical ancestors between the two claim groups. Further, the native title application filed by the Karratjibbin claim group did not refer to any connection with the Karlamaya or Kapurn people or claim to be part of the Karlamaya or Kapurn people. In closing submissions, however, the Karratjibbin applicant conceded that it had been unable to establish that the Karratjibbin people constituted (at sovereignty) a distinct society in their own right. With that recognition, the Karratjibbin applicant advanced a new contention that the Karratjibbin people constitute a subsidiary group within a broader normative system which includes persons who variously identify as Kapurn, Karlamaya or Karlaku. As discussed below, the contentions advanced by the Karratjibbin applicant in their closing submissions are not supported by the lay evidence adduced on behalf of the Karratjibbin applicant.

864    In considering the evidence of the Karratjibbin witnesses, it is necessary to have regard to the available historical evidence concerning the forebears through whom the Karratjibbin applicant claims to hold rights and interests in the Karratjibbin claim area. The most immediate forebear is Beatrice Yarran (née Winmar) who was the mother of Norman Yarran (also known as Doy), Conway Yarran, Dorcas May Pickett (née Yarran), Rhoda, Laurel, Ivy (also known as Bertha) Colbung (née Yarran) and Reg Yarran Snr. It is uncontroversial that Beatrice’s mother was Julia (Dunniyan) Penny and her father was Toby (Nimmo) Williams (and her stepfather by Julia Penny’s second marriage was Fred Winmar). The controversy concerns the question whether Julia (Dunniyan) Penny or Toby (Nimmo) Williams held rights and interests in the Karratjibbin claim area (it is common ground that Fred Winmar was a Noongar man who did not hold rights and interests in the Karratjibbin claim area).

865    The historical evidence concerning Toby (Nimmo) Williams and Julia (Dunniyan) Penny is discussed later in these reasons. I have taken that evidence into account in assessing the evidence given by the Karratjibbin witnesses. The following matters are particularly significant:

(a)    In relation to Toby (Nimmo) Williams, the historical evidence indicates that his parents were Toby and Pretty Polly and that they were Noongar people. At the conclusion of the trial, the Karratjibbin applicant conceded that they had not adduced any positive evidence establishing that Toby was an apical ancestor for the purposes of the claim.

(b)    In relation to Julia Penny, the historical evidence supports a conclusion that Billy Yambinut was her biological father (with her adoptive father being John David Penny). However, there is no historical evidence that Billy Yambinut held native title rights and interests in the Karratjibbin claim area (or any part of the trial area). Indeed, the historical evidence indicates that Bill Yambinut lived his life outside of the trial area. The historical evidence shows that Annie Donald / McIntyre was Julia Penny’s mother. The Karratjibbin applicant did not advance a contention that Annie Donald / McIntyre was a Karlamaya woman, and none of the historical information concerning Annie provides any support for such a finding. Her connections are with the Northam, Gnowangerup and Wongan Hills areas, all outside of the trial area.

866    One further matter should be noted by way of introduction to the evidence of the Karratjibbin witnesses. Between 1999 and 2002, anthropologist Dr Bruce Shaw undertook a number of interviews with Reg Yarran Snr. The interviews were conducted for the purposes of the Ballardong claim which was filed in 1998. The Ballardong claim covered an area to the south-west of the trial area but, in its original form, included a large part of the trial area including, for example, Mount Jackson, Southern Cross, Marvel Loch, Westonia and Kalannie. Relevantly, in its original form, the Ballardong claim extended over the area that is now the Karratjibbin claim area. Reg Yarran Snr was an applicant for the Ballardong claim. The Ballardong claim made no reference to ‘Karratjibbin’ people (nor to Karlamaya or Kapurn people).

867    After Reg Yarran Snr’s death (in 2004), the Ballardong claim was amended in 2008 to withdraw the boundary of the claim area to what is now the south-west boundary of the trial area (and therefore removing the claim over what is now the Karratjibbin claim area). The Ballardong claim was subsequently resolved as part of the South West Native Title Settlement and a Ballardong ILUA was entered into in 2016.

868    A document was tendered in evidence which contains both transcripts of interviews conducted of Reg Yarran Snr by Dr Shaw, and notes or compilations of the interviews prepared by Dr Shaw. The interviews conducted in 1999 were focussed on the Ballardong people, being a part of the wider Noongar nation. However, the interview conducted in 2002 focussed on Reg Yarran Snr’s mother, Beatrice, and Reg Yarran Snr’s belief that his mother held rights and interests in the area around Mount Jackson (within the Karratjibbin claim area) as a Karlamaya person. Although the 2002 interview was ostensibly with Reg Yarran Snr, both Glenys Yarran and Reg Yarran Jnr played a dominant role in the interview and provided or prompted many of the answers given to Dr Shaw. The relevant aspects of those interviews are discussed in some detail below. However, four observations are relevant to the overall assessment of the evidence given by the Karratjibbin witnesses.

869    First, there is a direct and inexplicable inconsistency between Reg Yarran Snr being an applicant on the Ballardong claim and asserting rights and interests in what is now the Karratjibbin claim area as a Ballardong (Noongar) person, while at the same time stating a belief that that area was Karlamaya country.

870    Second, there was no reference in the Ballardong claim, nor in the interview conducted with Dr Shaw in 2002, to any group of Aboriginal people known as ‘Karratjibbin’.

871    Third, the 2002 interview indicates that, at that time, Reg Yarran Jnr and his mother, Glenys Yarran, had been undertaking historical research into their family genealogy. That was also admitted by Reg Yarran Jnr in cross-examination. Reg Yarran Jnr agreed that, after the Ballardong claim was filed, he began undertaking research into that claim area (which, as noted above, at that time included the Karratjibbin claim area). Reg Yarran Jnr agreed that he visited the South Australian Museum and Adelaide University and obtained records from the Tindale collection. That is not a point of criticism, but it does indicate that some of the evidence given by them is derived from their interpretation of historical sources rather than from family oral history.

872    Fourth, there are a number of inconsistencies between the information conveyed to Dr Shaw in 2002 and the evidence given by the Karratjibbin witnesses at trial, which are referred to below.

873    Assessing the evidence given by the Karratjibbin witnesses as a whole, and in light of all evidence concerning the Yarran extended family, I am not persuaded that the Yarran extended family ever used the name ‘Karratjibbin’ to describe themselves. I accept that, historically, the extended Yarran family may have considered that they hold rights and interests in the western part of the trial area, but I consider it most likely that, historically, the family believed that the western part of the trial area was Ballardong (Noongar) country. I consider that the adoption of a ‘Karratjibbin’ identity is a relatively recent occurrence, which followed from research of historical sources undertaken by Reg Yarran Jnr.

Reg Craig Yarran Jnr

874    Reg Craig Yarran Jnr made three statements in this proceeding, dated 7 August 2023, 4 September 2023 and 6 September 2023. He gave evidence at the Kalgoorlie Town Hall on 11 October 2023 and at sites in the western part of the trial area identified as Lake Koorkoordine and Lake Deborah West on 9 October 2023. He was cross-examined on each occasion.

875    At the time of signing his witness statements and giving evidence, Reg Yarran Jnr resided in Perth.

876    I do not consider Reg Yarran Jnr to be a reliable witness. Indeed, I considered that Reg Yarran Jnr was careless with the truth. He was evasive in answering many questions; numerous aspects of his evidence were shown to be wrong; he gave inconsistent answers when giving evidence; and he was prone to exaggeration. His evidence concerning the Karratjibbin claim area was limited and given at a very high level of generality. I do not consider that I can put any weight on his evidence unless it is corroborated by other reliable evidence.

877    The principal difficulties and inconsistencies in Reg Yarran Jnr’s evidence are identified below when discussing specific aspects of his evidence. It needs to be emphasised that there were so many difficulties and inconsistencies with Reg Yarran Jnr’s evidence that it is impractical to record them all. I have limited the review of his evidence to the more significant matters.

878    Before turning to specific aspects of Reg Yarran Jnr’s evidence, however, it is convenient to refer to certain overarching issues that highlight many of the problems with his evidence.

879    The first overarching issue concerns the adoption by Reg Yarran Jnr of the name ‘Karratjibbin’ to refer to himself, and his family, as Aboriginal people who hold rights and interests in the western part of the trial area (being the Karratjibbin claim area). During cross-examination, Reg Yarran Jnr gave evidence that he first referred to the Karratjibbin claim area as Karratjibbin country in 1998 when registering the Ballardong claim. He also insisted that his father, Reg Yarran Snr, referred to the Karratjibbin claim area as “Karratjibbin country”. Reg Yarran Jnr also said that his father used both the name Karratjibbin and the name Karlamaya to refer the Karratjibbin claim area. I do not accept that evidence. I find that the adoption of the name ‘Karratjibbin’ by the Karratjibbin applicant is a relatively recent occurrence associated with the Karratjibbin claim. There are five reasons for reaching that conclusion.

880    First, I accept Nell Taylor’s evidence that the term ‘Karratjibbin’ was invented and used exclusively by Daisy Bates to name the group of Indigenous people she encountered in Southern Cross during her research in 1907. Daisy Bates gave them the name ‘Karratjibbin’ after the group’s favoured camping site near Southern Cross. Ms Taylor reported that she is not aware of any other anthropologists or researchers who have identified a group of persons by the name ‘Karratjibbin’. Ms Taylor further reported that she is not aware of any documents or materials that support the proposition that there was, at effective sovereignty, and still is today, a group of people called Karratjibbin who are distinct from the Karlamaya Kapurn people. There is no historical record which suggests that any Aboriginal group in the trial area identified themselves using the name ‘Karratjibbin’.

881    Second, despite the history of native title claims in respect of the trial area, no modern-day group of Aboriginal people has previously adopted the name ‘Karratjibbin’ to refer to Aboriginal people who hold rights and interests in the western part of the trial area.

882    Third, in the interview conducted by Dr Shaw in 2002, none of Reg Yarran Snr, Glenys Yarran or Reg Yarran Jnr used the name ‘Karratjibbin’. This is despite the fact that the subject of the interview was a claim by Reg Yarran Snr that his mother Beatrice held rights and interests in the western part of the trial area (now the Karratjibbin claim area). In that interview, Reg Yarran Snr referred to his mother’s country as Karlamaya country.

883    Fourth, the absence of any reference to the name ‘Karratjibbin’ in the 2002 Bruce Shaw interview is particularly striking in light of the fact that Reg Yarran Jnr gave evidence that “Karratjibbin Hill” is an important spiritual site for the Karratjibbin people. Reg Yarran Jnr gave evidence that Karratjibbin Hill is about five kilometres from the homestead of Mount Jackson, and that Karratjibbin Hill:

… is part of our songlines our history, our creator and our giver it’s about our snake. It is a black snake that lives in the fresh waterholes. Karratjibbin Hill is itself a freshwater hole.

884    During the 2002 Bruce Shaw interview, each of Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr spoke about significant sites near Mount Jackson, but none of them referred to Karratjibbin Hill.

885    Fifth, tendered in evidence were fieldnotes prepared by anthropologist Dr Stephen Bennetts of interviews he conducted with Reg Yarran Jnr (and with Norman Pickett and Gail Yarran) on 18 May 2023. The notes contain an admission, attributed in the fieldnotes to Reg Yarran Jnr, that his family identified the group as Karlamaya in earlier documents “because it was at an early stage of the research”. The admission confirms that the name ‘Karratjibbin’ has been adopted in more recent times as a result of research undertaken by Reg Yarran Jnr. I infer that the research includes the records of Daisy Bates, which is the origin of the Karratjibbin name. The admission was put to Reg Yarran Jnr in cross-examination and he responded that he did not recall making the statement. I consider that his response was evasive.

886    The second overarching issue concerns Reg Yarran Jnr’s evidence with respect to the transcript of the 2002 interview conducted by Dr Shaw in the presence of Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr. Reg Yarran Jnr’s evidence displayed an obstinate refusal to admit facts that were obviously correct. The following aspects of Reg Yarran Jnr’s evidence are notable.

887    First, having been shown the transcript, Reg Yarran Jnr refused to admit that he had seen the transcript previously. I reject that evidence as not credible. The transcript was provided to the Karratjibbin applicant’s expert witness, Dr Corrigan, for the purposes of his report. Not only did Dr Corrigan refer to the transcript in his report, he also stated that the transcript had been provided to him by Reg Yarran Jnr. That was put to Reg Yarran Jnr in cross-examination and the following exchange occurred:

MR McAVOY: Now, have you seen these notes before from Bruce Shaw?

REGINALD YARRAN: No.

MR McAVOY: Never before?

REGINALD YARRAN: No.

MR McAVOY: You didn’t give them to – do you know Brendan Corrigan?

REGINALD YARRAN: Yes.

MR McAVOY: You didn’t give them to Brendan Corrigan?

REGINALD YARRAN: I did.

MR McAVOY: You did give them to Brendan Corrigan?

REGINALD YARRAN: Yes. Sorry, no, I apologise. I didn’t give them to Brendan Corrigan. I gave them to Stephen Bennetts.

MR McAVOY: Okay. I thought you said you had never seen them before.

REGINALD YARRAN: I didn’t. My mother had possession of them.

MR McAVOY: Well, did your mother give them to Stephen Bennett, or did you?

REGINALD YARRAN: We both gave them to him.

MR McAVOY: So you have seen them before?

REGINALD YARRAN: No.

MR McAVOY: You handed them over, but you didn’t look at them.

REGINALD YARRAN: No.

MR McAVOY: Is that what you’re saying?

REGINALD YARRAN: Had a glance, but never had an in-depth read of them.

888    I consider the above evidence to be evasive. The transcript of the 2002 Bruce Shaw interview is significant in the context of the Karratjibbin claim, and that is why it was provided to Dr Corrigan (possibly through Dr Bennetts) by Reg Yarran Jnr (possibly with his mother). It is not credible that Reg Yarran Jnr did not read the transcript.

889    Second, Reg Yarran Jnr refused to admit that he was present when his father was interviewed by Dr Shaw in 2002. The following exchange occurred:

MR McAVOY: I suggest to you that the document, where you’re looking at it, it shows an interview by Bruce Shaw, anthropologist, with you and your father on Tuesday, 8 January 2002.

REGINALD YARRAN: It might have been my dad, not me.

MR McAVOY: Now, I suggest to you that you were present with your father on 8 January 2002?

REGINALD YARRAN: You’re wrong.

MR McAVOY: And that the interview took place in relation to the Ballardong Native Title claim.

REGINALD YARRAN: You’re wrong.

890    The answers were delivered in a belligerent manner. I reject the answers. It is clear from the transcript that each of Reg Yarran Snr, Reg Yarran Jnr and Glenys Yarran were present during the interview, and that each answered questions during the interview. As discussed below, the transcription identifies the different speakers by using different typeface (bold typeface for Dr Shaw, regular typeface for Reg Yarran Snr, italics typeface for Reg Yarran Jnr and underline italics typeface for Glenys Yarran). Throughout the transcript, there are numerous indications that the italics typeface records words spoken by Reg Yarran Jnr, including his self-identification as “Reg” and his use of the word “Dad” when addressing his father during the interview. Later during cross-examination, when taken to specific answers in the transcript, Reg Yarran Jnr was forced to admit that he and his mother gave answers during the interview, but Reg Yarran Jnr described their role as “passing” through the conversation. I reject that description. Reg Yarran Jnr and his mother played a large role in the interview, either answering questions or prompting Reg Yarran Snr with answers. It was put to Reg Yarran Jnr that his words appeared on every page of the transcript, and the following exchange occurred:

MR McAVOY: Well, I will suggest to you that words in italics are on almost every page, and so it is likely that you were there for the whole of the interview.

REGINALD YARRAN: You’re wrong.

HIS HONOUR: Just in fairness to Mr Yarran. Mr Yarran, would you like to take a moment to look at pages 180 to 240, just to get an impression of what that document shows?

REGINALD YARRAN: One hundred and?

HIS HONOUR: It starts at 180 and it goes through to 240. Mr McAvoy put to you that words in italics, which he is suggesting are your words, appear on every page. You might just want to look through the document. I’m doing this just in fairness to you in giving that last answer to Mr McAvoy suggesting that you were only passing through. I don’t know if you’ve had sufficient time – I just want to make sure you have a proper opportunity to look at the document.

REGINALD YARRAN: Yep.

HIS HONOUR: Mr Yarran, do you want to say anything else about your presence at that interview?

REGINALD YARRAN: As I said, I was only there at times when Bruce Shaw asked dad questions that he could not answer, so there were times when – because Bruce Shaw did not want me to be a part of the actual interview. He sent me away, but there were times when dad would call me and ask me the questions.

HIS HONOUR: Thank you.

MR McAVOY: And I suggest to you – and you can look at pages 180 to 240 that on almost every page there are words attributed to you. And so I suggest that you were there for almost the entirety of the meeting, if not the entire meeting.

REGINALD YARRAN: No.

891    I reject those answers. It is clear from the transcript that the words of Reg Yarran Jnr and Glenys Yarran appear on almost every page and they were present throughout the interview. They were not called in by Reg Yarran Snr to answer questions that he could not answer. They frequently proffered the answers or prompted answers.

892    Third, Reg Yarran Jnr’s explanation for why no mention was made of the Karratjibbin people or Karratjibbin Hill during the 2002 interview was evasive and not credible. The following exchange occurred:

MR McAVOY: I suggest to you throughout the whole of this interview, there’s many discussions about Mt Jackson there is no reference to Karratjibbin Hill.

REGINALD YARRAN: Because Shaw didn’t ask him.

MR McAVOY: But you – I suggest this to you. Where an anthropologist is seeking information for the purpose of native title proceedings, and there is a place which you have given evidence about in this Court being central to your culture and law, I suggest is something that you would mention to an anthropologist.

REGINALD YARRAN: Well, at that time, my dad had a lot of things on his plate.

MR McAVOY: Especially when he’s talking about the area where that place is said to exist.

REGINALD YARRAN: My dad had a lot of things on his plate.

MR McAVOY: I suggest to you that at that time - at that time, neither you or your father understood a place called Karratjibbin Hill at Mt Jackson.

REGINALD YARRAN: At that time, my dad had a lot of things on his plate.

MR McAVOY: Did you know that there was a place called Karratjibbin Hill at Mt Jackson in 2002?

REGINALD YARRAN: Yes, I did.

MR McAVOY: And you never mentioned it to Bruce Shaw?

REGINALD YARRAN: There was a lot of things happening at that time.

MR McAVOY: Your father never mentioned it to Bruce Shaw.

REGINALD YARRAN: There was a lot of things happening at that time. Many native title claims. Family feuds were happening with our family.

MR McAVOY: In fact, I suggest to you, Mr Yarran, that in 2002 – in January 2002, when your father spoke to Bruce Shaw and you were present, there was no mention in the whole interview of the Karratjibbin People. Do you have any recollection of a reference to Karratjibbin People in that interview in 2002?

REGINALD YARRAN: As I said, there was a lot of things happening.

893    The third overarching issue concerns the extent of the inconsistencies between the evidence given by Reg Yarran Jnr and the information conveyed by Reg Yarran Snr to Dr Shaw when interviewed between 1999-2002. Some of the inconsistencies are not significant in themselves. However, the combined effect of the inconsistencies is to cause me to have no confidence in the reliability of the evidence given by Reg Yarran Jnr. The inconsistencies included the following.

894    First, as already noted, Reg Yarran Jnr gave evidence that his father referred to the western part of the trial area as ‘Karratjibbin’ country. However, in the Dr Shaw interview in 2002 (which was focussed on the western part of the trial area and Reg Yarran Snr’s claim that it was his mother’s country), Reg Yarran Snr only referred to the area as Karlamaya country.

895    Second, Reg Yarran Jnr gave evidence that his father’s mother, Beatrice, was born in Mount Jackson (within the Karratjibbin claim area). However, in the Dr Shaw interview in 2002, Reg Yarran Snr said that his mother was born somewhere between Kellerberrin (outside the Karratjibbin claim area) and Southern Cross and that he did not know where.

896    Third, in cross-examination, Reg Yarran Jnr was asked where his father grew up and he answered “all throughout the claim area”. However, in the Dr Shaw interview conducted on 30 June 1999, Reg Yarran Snr stated that he went to school at Badjaling Mission and, when that closed down, the family moved into Quairading and he went to the state school. Reg Yarran Snr said that he had lived most of his life around Quairading, for 10 years he had lived in Northam, and in the last 5 years (prior to the interview in 1999) he had moved to Perth.

897    Fourth, in his written evidence at trial, Reg Yarran Jnr stated that the biological father of his father’s mother, Beatrice, was Toby Williams, but that Beatrice was raised by her stepfather, Fred Winmar. That evidence is consistent with the historical records adduced in evidence, discussed later in these reasons. Reg Yarran Jnr also gave evidence that a common mistake in his family history is the belief that Fred Winmar was Beatrice’s father, whereas his family “was taught our true history”. I understand that evidence to mean that knowledge of Beatrice’s biological father was passed down the family as oral history. Contrary to that evidence, it is apparent from the Dr Shaw interview conducted in 2002 that, at that time, Reg Yarran Jnr and his parents believed that Beatrice’s biological father was Fred Winmar. There is no reference to Toby Williams in that interview. I infer that Reg Yarran Jnr learned that Toby Williams was Beatrice’s biological father at a later point in time from his research of historical records.

898    The fourth overarching issue concerns Reg Yarran Jnr’s claim to Karratjibbin cultural authority within his extended family. In his written statement, Reg Yarran Jnr stated:

I am recognised among my family as having the highest rank for cultural knowledge in my family.

899    In cross-examination, Reg Yarran Jnr said that, in giving that evidence, he was referring to his extended family, meaning the broader Karratjibbin family. When asked to explain what he meant by that statement, Reg Yarran Jnr stated that his uncles and ancestors had passed down “a continuous connection to culture, down to my dad, that passed it on to me”. I reject that evidence. The evidence as a whole reveals that Reg Yarran Jnr’s knowledge of the Karratjibbin claim area is very limited, and that much of the claimed genealogical knowledge was derived from historical research.

Biographical background

900    Reg Yarran Jnr was born in 1977 in Norseman.

901    Reg Yarran Jnr’s father was Reg Yarran Snr, who was born in 1944 in Quairading (which Reg Yarran Jnr agreed was Noongar country) and died in 2004. As referred to above, Reg Yarran Jnr was asked in cross-examination where his father grew up and he answered: “all throughout the claim area”. I reject that evidence because it is inconsistent with the information given by Reg Yarran Snr to Dr Shaw in an interview conducted on 30 June 1999. As noted above, Reg Yarran Snr said in that interview that he lived most of his life around Quairading, for 10 years he had lived in Northam, and in the last five years (prior to the interview in 1999) he had moved to Perth.

902    Reg Yarran Jnr’s mother is Glenys Yarran whom Reg described as a Noongar (Whadjuk) woman. Reg Yarran Jnr’s paternal grandfather was Norman Yarran Snr, whom Reg described as a Ballardong man. Reg Yarran Jnr’s paternal grandmother was Beatrice Yarran (née Winmar), whom Reg described as a ‘Karratjibbin’ woman.

903    Reg Yarran Jnr has three sisters, Amanda, Chantelle and Beatrice, as well as stepbrothers that he did not identify in his evidence.

904    Reg Yarran Jnr is unmarried and has no children.

905    Reg Yarran Jnr gave evidence that he did not grow up on the Karratjibbin claim area. However, he said that he frequently went on “Karratjibbin country” by taking “our family” on camping trips and cleaning up “our significant heritage sites”. Recognising that Reg Yarran Jnr is unmarried, the reference to “our family” must be a reference to his parents, his siblings and perhaps his cousins. Reg Yarran Jnr’s evidence concerning his trips to the Karratjibbin claim area is considered further below.

906    Other than the foregoing, Reg Yarran Jnr gave no evidence concerning his personal history and the locations in which he lived. At the time of giving evidence, he resided in Perth. As noted above, Reg Yarran Snr told Dr Shaw in 1999 that he had moved to Perth five years prior, but the interview does not make clear whether Reg Yarran Jnr was also living in Perth at that time too.

Karratjibbin ancestors

Beatrice

907    Referring to his grandmother Beatrice (his father’s mother), Reg Yarran Jnr stated in his witness statement (emphasis added):

My grandmother’s parents (on father’s side) were (father) Toby Williams and (mother) Julia Penny.

Toby Williams’ mother was Eva, and both were born in Mt Jackson.

I claim my Karratjibbin heritage through my apical ancestors Eva and her son Toby.

908    A little later in his witness statement, Reg Yarran Jnr stated:

My grandmother Beatrice Yarran was raised by her step-father, Fred Winmar.

A common mistake in our family history that other people believe is that her father was Fred Winmar. This is not true. Our family was taught our true history, culture, ceremony belief and our ways of living.

Fred Winmar was a senior elder, as was Toby Williams. However, they did not get along and Fred wanted to keep Toby away from Beatrice when she was a small child growing up away from Karratjibbin country, as Toby had speared some women previously. Following some altercations, Toby left and travelled west. There is a record of him being later shot by Police.

Fred then raised Beatrice Yarran as his own daughter, and this is reflected in her death certificate.

909    Beatrice Yarran’s death certificate records that she was born in 1908 in Kellerberrin and died in 1975, two years before Reg Yarran Jnr was born.

910    Reg Yarran Jnr’s evidence that Beatrice’s biological father was Toby Williams, and her stepfather was Fred Winmar, is consistent with the historical evidence considered below. However, at the time that Reg Yarran Snr was interviewed by Dr Shaw in 2002, that does not appear to have been known by the family. It is apparent from the interview that the genealogy that had been prepared for discussion with Dr Shaw recorded that Beatrice’s father was Fred Winmar, and that each of Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr believed that Beatrice’s biological father was Fred Winmar. During the interview, no mention is made of Toby Williams. That is not a point of criticism. However, it contradicts Reg Yarran Jnr’s written statement, reproduced above, that his family “was taught our true history”, being the fact that Beatrice’s father was Toby Williams.

911    Reg Yarran Jnr’s evidence that Fred Winmar raised Beatrice Yarran as his own daughter is significant. It is uncontroversial that Fred Winmar was a Noongar man and had no rights and interests in the trial area. It follows that Beatrice would not have learned knowledge of the laws and customs of the trial area from Fred Winmar.

912    Reg Yarran Jnr stated in oral testimony that his father told him that his grandmother Beatrice “was taken away from country” and placed in the Badjaling Mission. In his witness statement, Reg Yarran Jnr states that Beatrice was “moved away from Mt Jackson”, implying that Beatrice was born at Mount Jackson (within the trial area). I reject that evidence. It is not consistent with the information conveyed by Reg Yarran Snr to Dr Shaw during the 2002 interview. In that interview, Reg Yarran Snr stated that Beatrice was “was born in the bush out there somewhere” and that he did not know the location but it “could be from Kellerberrin right up to Southern Cross”. The evidence is also not consistent with Beatrice’s death certificate which states that she was born in Kellerberrin (which is in Ballardong country to the west of the Karratjibbin claim area).

913    Reg Yarran Jnr also stated that, as his grandmother Beatrice was a “full blood” Aboriginal woman, she was not allowed to live at the Badjaling Mission, so lived nearby in the bush at a place called Yoting (about five kilometres away from the main mission). During cross-examination, Reg Yarran Jnr gave inconsistent evidence in response to the question whether his grandmother, Beatrice, lived all of her life on Noongar country after she moved to Badjaling Mission and Yoting. At first, Reg Yarran Jnr agreed with that statement. However, when subsequently challenged by a question that his grandmother therefore had no firsthand knowledge of the Karratjibbin claim area, Reg Yarran Jnr qualified his first answer by stating that Beatrice did not visit the Karratjibbin claim area as a child, but she did visit that area as an adult. I place no weight on that evidence.

Beatrice’s father, Toby Williams

914    Reg Yarran Jnr’s statement that he claims his “Karratjibbin heritage” through descent from Eva and her son Toby Williams is inconsistent with the Karratjibbin claim as advanced in closing submissions. The Karratjibbin applicant acknowledged in closing submissions that there was no evidence that Toby Williams held rights and interests in the Karratjibbin claim area. The historical evidence discussed below indicates that Toby Williams’s father was a Noongar man named Toby and his mother was a Noongar woman named Pretty Polly. There is no historical evidence supporting a conclusion that Toby Williams’s mother was named Eva and Reg Yarran Jnr did not otherwise identify the Eva he was referring to in his witness statement.

Beatrice’s mother, Julia (Dunniyan) Penny

915    Although Reg Yarran Jnr commenced his written evidence with the statement “I claim my Karratjibbin heritage through my apical ancestors Eva and her son Toby”, later in his statement he says:

Our 2 main ancestors are Polly and Billy Yambinut.

Toby and Julia (daughter of Billy Yambinut) had Beatrice.

916    In closing submissions, the Karratjibbin applicant claimed to hold rights and interests in the Karratjibbin claim area through descent from Billy Yambinut, Julia Penny’s father.

917    The historical evidence relating to Billy Yambinut and his daughter, Julia Penny, is discussed later in these reasons. Taking into account both the historical evidence and the evidence of the Karratjibbin witnesses, there is insufficient evidence to conclude, on the balance of probabilities, that Billy Yambinut was a Karlamaya person.

Granny Percy, Don Roundhead and Pompey Williams

918    In his evidence, Reg Yarran Jnr referred to three other persons whom he says are relatives and from whom he learned about the Karratjibbin claim area and holds rights and interests in the Karratjibbin claim area and acquired “Karratjibbin cultural knowledge”: Percy Carney, Pompey Williams, and Don Roundhead.

919    Reg Yarran Jnr referred to Percy Carney as “Granny Percy”. In his 2002 interview with Dr Shaw, Reg Yarran Snr said that Percy Carney told him that Julia Penny was his (Percy’s) sister and that Beatrice was his niece. Percy Carney lived with Reg Yarran Snr and his wife Glenys for many years. Reg Yarran Snr said that Percy Carney told him that Karlamaya country was his (Percy’s) country and his sister’s (Julia’s) country. The historical evidence, discussed later in these reasons, supports a conclusion that Percy Carney was the son of Tom Carney and Annie Donald / McIntyre and he was therefore, a half-brother to Julia Penny and a half-uncle to Beatrice. At trial, the Karratjibbin applicant did not advance a contention that Annie Donald / McIntyre was a Karlamaya woman and none of the historical information concerning Annie provides any support for such a finding. The available historical evidence also provides no support for a conclusion that Percy Carney was a Karlamaya man, although in around 1944 he was working in Mukinbudin (and otherwise worked outside of the trial area).

920    Reg Yarran Jnr referred to Pompey Williams as “Uncle Pompey”, although he also explained that Pompey was his father’s uncle. The historical evidence, discussed later in these reasons, supports the conclusion that Pompey Williams was the son of Toby and Pretty Polly and the brother of Toby (Nimmo) Williams (and thereby a great uncle to Reg Yarran Snr). However, like Toby (Nimmo) Williams, there is no evidence that Pompey Williams was a Karlamaya man. When interviewed by Tindale in Albany in 1939, Pompey Williams identified himself as Noongar and said that Noongar was his language.

921    Reg Yarran Jnr also referred to Don Roundhead as “Uncle Don”, again explaining that Don was his father’s uncle. Don Roundhead has been discussed earlier in these reasons where I have concluded that he is a Karlamaya Kapurn man. In his 2002 interview with Dr Shaw, Reg Yarran Snr said that Don Roundhead was his mother’s (Beatrice’s) cousin. In the same interview, by reference to a genealogy that had been created, Reg Yarran Jnr stated that Don Roundhead’s mother, Eva, was the sister of Julia Penny. As discussed later in these reasons, there is no support in the historical evidence for a conclusion that Eva Roundhead was Julia Penny’s sister. Indeed, the available historical evidence contradicts any such conclusion. In my view, that suggestion appears to have arisen from erroneous genealogical research undertaken by or on behalf of Reg Yarran Jnr.

Acquisition of cultural knowledge

922    Reg Yarran Jnr’s evidence concerning his acquisition of cultural knowledge was riddled with inconsistencies and errors.

923    In his witness statement, Reg Yarran Jnr stated that he was taught “Karratjibbin culture” by his father, his father’s brothers, Conway and Norman (Doy) Yarran, his father’s sister’s husband Fred Pickett, as well as his older cousins. However, during cross-examination, Reg Yarran Jnr acknowledged that Fred Pickett was the husband of his father’s sister, Dorcas, and that Fred Pickett was not a Karratjibbin person. Reg Yarran Jnr also acknowledged that his father’s brother Conway died in 1986 when he was only nine years old.

924    In his witness statement, Reg Yarran Jnr also said that his father’s uncles, Uncles Don and Pompey (a reference to Don Roundhead and Pompey Williams), taught him cultural knowledge. However, during cross-examination, Reg Yarran Jnr acknowledged that that evidence is incorrect. Don Roundhead died in 1982 when Reg Yarran Jnr was five years old. Pompey Williams was born around 1879. The evidence did not disclose the year of Pompey Williams’s death, but his year of birth indicates that, if he was alive when Reg Yarran Jnr was born, he would have been around 98 years old. In cross-examination, Reg Yarran Jnr changed his evidence to say that Don Roundhead and Pompey Williams taught his father, Reg Yarran Snr, cultural knowledge, which was then passed down to him by his father.

925    Reg Yarran Jnr’s written evidence was to the effect that he learned about the Karratjibbin claim area and significant sites in the area on camping trips with his family. However, his written evidence principally refers to learning about country from his father, rather than his uncles. He said that his father had shown him where “all of the sites were on Karratjibbin country” and gave the following evidence:

Our trips started when I was around 6 years old, but I did not really start to be taught culture until about 13 years of age.

Between the ages of 13 and 14 I was taught all of our cultural knowledge, which is unusual, my father wanted to make sure I was taught everything as the only male descendant in our family.

It was made clear to me that as the knowledge holder it was my duty to then pass this on to my younger relatives (cousins) when they had reached maturity and were ready.

When my father became unwell, he stopped coming to the trips on country and since his passing I continue this tradition with my relatives, teaching them our history and how to care for country.

It was my father who told me the story of the milky way, snake dreamtime story and creation stories for our sacred sites and other places.

My father told me about Karratjibbin People society and lores. I learned language and song.

926    During cross-examination, Reg Yarran Jnr contradicted the foregoing written evidence in two ways.

927    First, he contradicted when his cultural learning started. The following exchange occurred:

MS TAGGART: So you’ve given some evidence in your written statement and today that your cultural learning for Karratjibbin country and Karratjibbin culture and law started when you were around 13, is that right?

REGINALD YARRAN: No.

MS TAGGART: When did it start?

REGINALD YARRAN: Eight or nine years old.

928    Second, he contradicted when his cultural learning was completed. Reg Yarran Jnr was asked why he was taught by his father “all of our cultural knowledge” between the ages of 13 and 14, as stated in his written statement. The following exchange occurred:

REGINALD YARRAN: It wasn’t only just that particular age year, it was over like years and years until he passed away of actually gathering all that information and knowledge that he’s had.

MS TAGGART: I see.

REGINALD YARRAN: And he asked me to share it on to the rest of the family.

MS TAGGART: So when you say in your statement at paragraph 32 that between the ages of 13 and 14 you were taught all of the cultural knowledge, that statement’s not right?

REGINALD YARRAN: That’s correct – it is correct, my statement.

MS TAGGART: I’m just not quite sure how to understand those two answers because as I understand your answer not too long ago, was that your cultural knowledge, teaching and learning from your father happened over a period of 25 years, but in your paragraph 32, what you say is that you were taught all of the cultural knowledge between the ages of 13 and 14?

REGINALD YARRAN: To the extent that all the information that I needed to know, yes, and then continuously over the years.

929    Reg Yarran Jnr’s evidence that he learned about “Karratjibbin culture” from his father invites the question of the source of his father’s knowledge. It is uncontroversial that his father’s family was Noongar. He was raised and lived his life in Noongar country outside of the trial area. His mother Beatrice was raised by a Noongar man, Fred Winmar, and she grew up and lived on Noongar country.

930    Reg Yarran Jnr gave evidence that Percy Carney taught his father about the Karratjibbin claim area, and that his father took Percy Carney out onto the Karratjibbin claim area. That evidence is, in part, inconsistent with information conveyed by Reg Yarran Snr to Dr Shaw in the 2002 interview. In that interview, Reg Yarran Snr said that Percy Carney spoke about the Karlamaya people and told Reg Yarran Snr that he (Percy) would take him to Karlamaya country. Reg Yarran Snr said that he promised to take Percy Carney out to Golden Valley “to blow up some stones” (which I infer is a reference to prospecting for gold), but at the time Reg Yarran Snr did not have “any decent cars or four-wheel drives to get into that country”. Reg Yarran Snr said:

And he just, he just told me the stories of that country saying that’s his country and that is his sister’s country, Dynnian, and that was his niece’s country … Which is my mother Beattie.

931    In that passage of the interview, Reg Yarran Snr conveys that he did not travel to the trial area with Percy Carney; rather, Percy Carney told him stories about Karlamaya country. The historical evidence, discussed later in these reasons, indicates that Percy Carney lived some of his life in the western part of the trial area. However, the historical evidence does not support the conclusion that Percy Carney was a Karlamaya Kapurn person. It is possible, though, that Percy Carney acquired knowledge about the western part of the trial area from Karlamaya Kapurn people.

932    Reg Yarran Jnr confirmed in evidence that his father was a close friend of Malcolm Ben Champion and they spent a lot of time together. Reg Yarran Jnr also said that his father learned from Malcolm Ben Champion the song line of the Wagyl, the snake that travelled from Uluru through to Mount Jackson (within the trial area) and on into Noongar country. That evidence is consistent with the 2002 interview with Dr Shaw, where Reg Yarran Snr described Malcolm Champion as “part of the Gubrun mob”.

933    Dr Shaw’s 2002 interview with Reg Yarran Snr (and Glenys Yarran and Reg Yarran Jnr) is considered in more detail below. However, although the interview concerned the western part of the trial area which is the subject of the Karratjibbin claim, Reg Yarran Snr conveyed very little information to Dr Shaw about that area, suggesting that Reg Yarran Snr had limited knowledge of the area.

934    As set out earlier in these reasons, Leeroy Bilney gave evidence in relation to a trip that he went on to Southern Cross with his grandfather, Malcolm Ben Champion, and accompanied by Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr in about 1998 in connection with the Ballardong claim. The substance of the evidence was that Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr were each asking questions of Malcolm Ben Champion seeking information about the Southern Cross area. In his second witness statement, Reg Yarran Jnr discussed that trip. He said that his mother did not ask questions of Malcom Ben Champion or her husband, because it would have been culturally inappropriate for her to do so. Otherwise, he did not contradict the evidence given by Leeroy Bilney in any material way.

Evidence about the Karratjibbin claim area

935    As noted earlier, Reg Yarran Jnr gave evidence that he did not grow up in the Karratjibbin claim area but that he frequently went camping with his family on “Karratjibbin country”. In his witness statement, he stated that the places his family camped included Southern Cross, Mount Helena Ranges, the “Lakes throughout Karratjibbin country” and that they would also go to Karratjibbin Hill.

936    Significantly, during cross-examination, Reg Yarran Jnr stated that when he travelled with his family into the Karratjibbin claim area, they did not stay with any Karlamaya Kapurn families. When they visited Southern Cross, they stayed in a motel and, in the early days, they camped in the Marvel Loch area.

937    Reg Yarran Jnr’s evidence that his family stayed in a motel when they visited Southern Cross was contradicted by the evidence of his mother. Glenys Yarran gave evidence that when their family travelled to Southern Cross, they stayed with her mother, who lived in Southern Cross.

938    In his witness statement, Reg Yarran Jnr described the family’s activities in gathering resources and hunting animals:

A main activity was harvesting Sandalwood to make various things including spears and tapping sticks.

We would sell what was made to art galleries and for export. We did this as part of earning a bit of money to help our other family members out with food and other needs such as funeral expenses.

We would hunt and gather foods including nuts and fruits, fish, witchety grubs and small animals. Kangaroos would be on the top of our list as we still continue to carry this practise out today, along with gathering goannas and other rock lizards by using wooden traps, these traps were shown to us by our elders who learnt from their elders as we still continue to do this today.

We would harvest sap from the tree which was great for cleaning out intestines, and when melted made a wound dressing.

…

We would build lizard traps and find old evidence of former traps.

On the lakes we caught ducks, gathered duck eggs and fished. Lake Deborah is the best and significant out of all the lakes this is the best place to catch them all.

939    Reg Yarran Jnr gave very limited evidence at Lake Koorkoordine on 9 October 2023. He said that “Koorkoordine to us is a place of hunting and food gathering”. He said that his father and his uncles brought him to Lake Koorkoordine to hunt. However, there were inconsistencies in his evidence. He said that the first time he came to Lake Koorkoordine was when he was 13 years old and he was brought by his father. Later, he was asked which uncles had brought him to Lake Koorkoordine and he said Uncle Conway. That answer is contradicted by other evidence, noted above, which revealed that Uncle Conway died in 1986 when Reg Yarran Jnr was nine years old.

940    Reg Yarran Jnr also gave limited evidence at Lake Deborah West on 9 October 2023. In his witness statement, the only evidence that Reg Yarran Jnr gave about Lake Deborah was the following:

On the lakes we caught ducks, gathered duck eggs and fished. Lake Deborah is the best and significant out of all the lakes this is the best place to catch them all.

941    When giving evidence at Lake Deborah, Reg Yarran Jnr repeated that he came to Lake Deborah West with his family for hunting, looking for ducks and duck eggs. However, when asked whether he had fished at Lake Deborah, he said that he did not (contrary to his witness statement) but that his ancestors did. During cross-examination in Kalgoorlie two days later, Reg Yarran Jnr was challenged about the inconsistency in his evidence concerning fishing. The following exchange occurred:

MR McAVOY: But you’ve never caught any fish at Lake Deborah, have you?

REGINALD YARRAN: It was actually told to us culturally.

MR McAVOY: No, but you said you caught fish there Mr Yarran.

REGINALD YARRAN: Frogs, yes. Amphibians, yes.

MR McAVOY: But not fish.

REGINALD YARRAN: They’re classed as fish.

942    Although the above exchange is substantively insignificant, it is illustrative of the manner in which Reg Yarran Jnr gave evidence. Reg Yarran Jnr proffered an answer to explain an inconsistency in his evidence, but without any regard to the truthfulness of the answer.

943    When giving evidence at Lake Deborah West, Reg Yarran Jnr said that the location is significant to his family because “it is part of our songline and our Dreaming”. Reg Yarran Jnr gave evidence about the Waarlu, a snake which created the lake and which travelled down from Uluru, through Warburton and Mount Jackson and then down to the Yenyening Lakes. That evidence is discussed in more detail below. Reg Yarran Jnr also said that he came to Lake Deborah West with his family for hunting, looking for ducks and duck eggs.

944    Reg Yarran Jnr’s evidence about the Karratjibbin claim area was largely devoid of information concerning traditional laws and customs, including what might be described as cultural knowledge. Apart from his evidence concerning a snake called the Waarlu (discussed below), his evidence was at a high level of generality. For example, he stated:

It was my father who told me the story of the milky way, snake dreamtime story and creation stories for our sacred sites and other places.

My father told me about Karratjibbin People society and lores. I learned language and song.

…

I learned the importance of Karratjibbin Hill. This was told to our family through our songlines, our ceremonial dancing and the stories that were passed down to us through our elders to my Dad and his brothers and then onto us as we now continue this passing down to our next generations.

945    Overall, my impression is that Reg Yarran Jnr has very limited knowledge of the Karratjibbin claim area.

Evidence about the Waarlu

946    Reg Yarran Jnr gave evidence about only one traditional story concerning the Karratjibbin claim area. It is the story of a snake called the Waarlu which was a creator being. Reg Yarran Jnr’s evidence concerning the Waarlu was again inconsistent.

947    During his interviews with Dr Shaw between 1999 and 2002, Reg Yarran Snr referred to the serpent creation being called the Wagyl, which is a Noongar word for snake. In those interviews, Reg Yarran Snr explained that the Wagyl was responsible for the fresh waterways, and that he learned the story of the Wagyl from Malcolm Ben Champion, whom Reg Yarran Snr described as “from the Gubrun mob”. During the 2002 interview, which focussed on the western part of the trial area (the subject of the Karratjibbin claim), Reg Yarran Snr described the Wagyl trail as follows:

The Wagyl … trail runs down from, from Ayers Rock in the centre and it came down through Warburton, Laverton, Leonora, Menzies, and it came down through Mount Jackson, around that area and that, and the Lake called Yinyinning Lake.

948    The significance of that evidence is that Reg Yarran Snr used the name Wagyl to describe the snake as it travelled through different country, including through Mount Jackson which is in the Karratjibbin claim area (and a focus of Reg Yarran Jnr’s evidence). The lake transcribed as “Yinyinning Lake” is likely to be Yenyening Lakes, which is south-west of Quairading in Noongar country.

949    In his fieldnotes dated 27 May 2023 taken in Southern Cross, Dr Stephen Bennetts recorded that Reg Yarran Jnr stated the following:

Warlu came through here and created lakes, hills around the place as far as Yinyang (?) Lake. Rested at Mt Stirling. Reg Yarran Snr had stories about Wagyl passed down from Don Roundhead and Pompey Williams.

950    It is apparent from that note that Reg Yarran Jnr conveyed that the Waarlu was the same snake as the Wagyl, as referred to by his father in the interviews with Dr Bruce Shaw. The reference to “Yinyang Lake”, which Dr Bennetts expressed with a question mark, is likely a reference to Yenyening Lakes. However, Reg Yarran Jnr misstated the source of his father’s knowledge about the Wagyl. In the 2002 interview, Reg Yarran Snr said that he learned about the Wagyl from Malcolm Ben Champion, not from Don Roundhead or Pompey Williams.

951    In his witness statement, Reg Yarran Jnr stated that his family went to Karratjibbin Hill to “pay thanks to our creator the Waarlu (black snake)”. On a number of other occasions in his witness statement, Reg Yarran Jnr described the Waarlu as “our creator” or “creative being”. He stated that the Waarlu “lives in the fresh waterholes” and that Karratjibbin Hill is itself a freshwater hole. Later in the witness statement, Reg Yarran Jnr stated:

The Karratjibbin people follow the totally different Law of Waarlu, the ancestral creative being whose generally known physical appearance is that of a snake, associated always with the creation of the great lakes and the gnamma holes, springs and soakages that sustain all life in our country. My father told me that without Waarlu, there is no water and without water there is no life, including human life.

Our title to land is based on Waarlu, who gave us land, water and life. That is our culture and Law. Because of Waarlu we are an identifiable and distinct community of people; we have traditional connection with and occupation of the land under the laws and customs of our group based on the creation of that land and its resources by Waarlu. In addition, we have substantially maintained our connection with our land, despite repeated attempts by Government to break and destroy that connection.

952    It is apparent from the foregoing evidence that Reg Yarran Jnr sought to convey that the Karratjibbin people were distinctive because of their story of the Waarlu.

953    When giving evidence-in-chief at Lake Deborah West on 9 October 2023, Reg Yarran Jnr gave the following evidence about the Waarlu:

… so it is where the Waarlu come down and created the place here and Lake Koorkoordine and it also is part of another song line Dreaming too, as well. My dad told me a story that the snake came from Uluru, went through Warburton, Mt Jackson, down to the Yenyening Lakes and then back into Beverley and then created Avon River and then out through to the Swan River and then out into Wadjemup.

954    By that answer, Reg Yarran Jnr conveyed that the Waarlu snake is the same snake as the subject of the traditional story as told by his father. That is apparent from the statement that the Waarlu is part of the song line of the snake that came from Uluru and travelled through Mount Jackson down to Yenyening Lakes. As explained by Ms Taylor in her evidence, the name of the snake may change as it travels through different country with different language groups.

955    Initially during cross-examination at Lake Deborah West, Reg Yarran Jnr appeared to confirm that understanding of his evidence:

MR McAVOY: Mr Yarran, that song line you referred to, the Waarlu - is that song line that continues through Noongar country? It has a different name in Noongar country?

REGINALD YARRAN: That snake over there is called the Wagyl.

MR McAVOY: The Wagyl.

REGINALD YARRAN: Yes.

MR McAVOY: It is the same storyline, though, coming from Uluru, isn’t it?

REGINALD YARRAN: Yes. Coming from the Uluru.

956    However, the position changed later in cross-examination at Lake Deborah West:

MS TAGGART: Mr Yarran, you mentioned the Waarlu and the Wagyl, and I think you said it’s the same song line. Is it the same snake?

REGINALD YARRAN: No.

MS TAGGART: So two different snakes?

REGINALD YARRAN: Yes.

957    The foregoing evidence, that the songline involves two different snakes, was not part of the traditional story conveyed by Reg Yarran Snr to Dr Shaw.

958    During cross-examination in Kalgoorlie, Reg Yarran Jnr’s evidence shifted again. He said that the Waarlu was not part of the songline of the snake that travelled from Uluru, through Mount Jackson and into Noongar country. He said that the Waarlu travelled only within Karratjibbin country. But then later in cross-examination, Reg Yarran Jnr said that the name for the snake for the song line when it is in Noongar country is the Wagyl, but the name for the snake for the songline when it is in Karratjibbin country is the Waarlu. However, confusingly, Reg Yarran Jnr agreed with the proposition that there are two snakes in Karratjibbin country, and that the snake for the song line that travels from Uluru, through Mount Jackson and down through Noongar country is a different snake to the Waarlu.

959    I reject Reg Yarran Jnr’s evidence concerning the Waarlu. That is for three reasons. First, his evidence was inconsistent. Second, whilst Reg Yarran Jnr said that he learned the story of the Waarlu from his father, there is no mention of a snake called the Waarlu in the extensive interviews conducted by his father with Dr Shaw. Most relevantly, in the 2002 interview which concerned the western part of the trial area including the area around Mount Jackson, Reg Yarran Snr only referred to the Wagyl creation being. Third, none of the Aboriginal language word lists created in and around the trial area use the word waarlu for snake. Ms Taylor gave evidence, which I accept, that warlu is a word for snake used in the Pilbara region of Western Australia, but not by Noongar or Kapurn people. Ms Taylor noted that the Kaalamaya Dictionary (Draft, Hanson, 2019) refers to the word for “dreaming water snake” or “snake that lives in the waterhole” as Pimara (which is consistent with the word used in the evidence given by Marlinyu Ghoorlie witnesses).

Rejection of Karlamaya Kapurn identity

960    During cross-examination, Reg Yarran Jnr was asked whether he is a Kapurn person and whether he holds rights and interests in the Karratjibbin claim area together with the descendants of Warada and Kaddee and Lucy Sambo and together with the Champion family. He answered those questions in the negative. Given the significance of the evidence, it is appropriate to reproduce the exchange:

MR McAVOY: Mr Yarran, do you say that you are a Kapurn person?

REGINALD YARRAN: No.

…

MR McAVOY: So, just so we’re clear, are you telling the Court here today that you hold rights together with the descendants of Warada and Kadee and Lucy Sambo? Is that your evidence?

REGINALD YARRAN: No.

MR McAVOY: No, it’s not. Do you say that you hold any rights and interests together with the Champion family?

REGINALD YARRAN: No.

…

MR McAVOY: Is the land over – the country over which the Karratjibbin native title claim is sitting, is that Kapurn country?

REGINALD YARRAN: No.

961    Reg Yarran Jnr gave inconsistent evidence concerning his knowledge of Kapurn laws and customs. On the one hand, he said that growing up, he was not taught anything about Kapurn laws and customs. On the other hand, he gave evidence that he believes that Karratjibbin laws and customs were the same as Kapurn laws and customs. When asked to explain that inconsistency, Reg Yarran Jnr stated that he had read the evidence filed on behalf of the Marlinyu Ghoorlie claim group. The following exchange occurred:

MS TAGGART: So firstly, the evidence that you’ve read has caused your understanding to change, is that correct?

REGINALD YARRAN: Maybe.

…

MS TAGGART: What does that mean?

REGINALD YARRAN: It may be a yes, it may be a no.

962    This was a further illustration of Reg Yarran Jnr’s evasiveness when answering questions.

Gail Lorrain Yarran

963    Gail Lorrain Yarran made a statement dated 7 August 2023 and gave evidence at the Kalgoorlie Town Hall on 11 October 2023. She was cross-examined.

964    Gail Yarran’s evidence in support of the Karratjibbin claim was limited in scope. Furthermore, her written evidence concerning claimed Karratjibbin forebears was identical in form to that given by Reg Yarran Jnr, and her written evidence concerning the content and transmission of Karratjibbin law and custom was identical in form to that given by Norman Pickett, discussed below. In both respects, the written evidence had the same author, but it is not clear whether the author was Gail Yarran (with Reg Yarran Jnr and Norman Pickett copying her evidence), or Reg Yarran Jnr and Norman Pickett (with Gail Yarran copying their evidence respectively), or a third person. Given the form in which the evidence was presented, I place little weight upon it.

965    Gail Yarran gave evidence that she first heard the name ‘Karratjibbin’ being used 45 years ago from her father. I do not accept that evidence for substantially the same reasons as given in the context of Reg Yarran Jnr’s evidence.

966    Gail Yarran confirmed in her oral testimony that her father considered himself to be a Ballardong man. Gail agreed that she was taught Ballardong culture and added:

… Ballardong is Noongar country and that’s what I am. … I live in Ballardong country.

967    Gail Yarran also confirmed that Ballardong law and custom was an important part of what she was taught growing up.

Biographical background

968    Gail Yarran was born at Quairading in 1952. She resides in Perth.

969    Her father was Norman Yarran (also known as Doy), who died in 1997. Norman Yarran’s parents were Norman Yarran Snr and Beatrice Yarran. Norman Yarran was therefore the brother of Reg Yarran Snr. Gail Yarran and Reg Yarran Jnr are cousins.

970    Gail Yarran’s mother was Myrtle Yarran (née Mead), who died in 2019. Gail Yarran described her mother as a Noongar (Whadjuk) woman.

971    Gail Yarran has six sisters and three brothers (one of whom is deceased).

Karratjibbin ancestors

972    In her witness statement, Gail Yarran gave the following evidence:

My grandmother’s parents (on father’s side) were (father) Toby Williams and (mother) Julia Penny.

Toby Williams’ mother was Eva, and both were born in Mt Jackson.

I claim my Karratjibbin heritage through my apical ancestors Eva and her son Toby.

973    As noted above, that evidence is in precisely the same form as Reg Yarran Jnr’s evidence.

974    In cross-examination, Gail Yarran said that Toby Williams, and his mother Eva, is the only line through which she claims Karratjibbin heritage. As noted in the context of Reg Yarran Jnr’s evidence, there is no evidence that Toby Williams held rights and interests in the Karratjibbin claim area. The historical evidence discussed below indicates that Toby Williams’s father was a Noongar man named Toby and his mother was a Noongar woman named Pretty Polly. There is no historical evidence supporting a conclusion that Toby Williams’s mother was named Eva.

Karratjibbin cultural knowledge

975    In her witness statement, Gail Yarran gave the following evidence with respect to Karratjibbin cultural knowledge:

I was taught Karratjibbin culture by my older siblings, cousins, parents, uncle and aunties, gran parent’s elders, and those who were strong Lore knowledge holders, they would share what they were allowed to.

Language was not spoken by my generation. We heard our grandparents speaking in our language but were not educated or encouraged to speak it as you had to be accurate, or it would cause offence.

I maintained my cultural practices through gathering foods and medicines e.g., tree sap from trees, berries, quandongs, and plants. I always acknowledge spiritual and traditional practices, understanding art presented, maintaining natural resources and protection.

We as a child were told and shown stories by drawings on the ground from our parents or elders. Paintings now were passed down from my family depicted stories and song lines, that are and still so important to maintain and understand for the future generation.

976    In oral testimony, Gail Yarran said that her father, Norman Yarran (Doy), went hunting in the Karratjibbin claim area with his brothers, Reg Yarran Snr and Conway Yarran, their in-laws and their sons. Gail Yarran said that her father led those trips because he had guns for shooting and dogs for catching kangaroos. Gail Yarran indicated that the men went hunting in the Wheatbelt Region. When prompted by Karratjibbin counsel, Gail Yarran said that they also went hunting in the Karratjibbin claim area, but my impression was that she did not have any detailed knowledge about the location of the hunting trips.

977    In cross-examination, Gail Yarran said that she had never heard of a place called Karratjibbin Hill. That evidence is starkly inconsistent with the evidence given by Reg Yarran Jnr, who stated that Karratjibbin Hill was “part of our songlines our history”.

Karlamaya Kapurn people

978    In cross-examination, Gail Yarran said:

(a)    she does not remember her father ever using the term ‘Karlamaya’;

(b)    she does not know any Kapurn or Karlamaya people; and

(c)    her family are not Kapurn people.

Norman Lawrence Pickett

979    Norman Lawrence Pickett made a statement dated 7 August 2023. He gave evidence at the Kalgoorlie Town Hall on 12 October 2023 and was cross-examined.

980    Like Gail Yarran, Norman Pickett’s evidence in support of the Karratjibbin claim was limited in scope. Furthermore, his written evidence concerning the content and transmission of Karratjibbin law and custom was identical in form to that given by Gail Yarran. The written evidence had the same author, but it is not clear whether the author was Norman Pickett (with Gail Yarran copying his evidence), or Gail Yarran (with Norman Pickett copying her evidence), or a third person. Given the form in which the evidence was presented, I place little weight upon it.

981    Norman Pickett is a director of the Ballardong Aboriginal Corporation. He agreed in cross-examination that he is a Ballardong man and noted that it is necessary to be a Noongar person in order to be a director of the Ballardong Aboriginal Corporation. During cross-examination, Norman Pickett was asked about the Ballardong native title claim which, when filed, covered a large part of what is now the Karratjibbin claim area. The following exchange occurred:

MR PUDOVSKIS: However, you have just said you were aware that it [the Ballardong claim] covered a large part of your Karratjibbin claim area?

NORMAN PICKETT: Yeah.

MR PUDOVSKIS: Did you agree with that, or disagree?

NORMAN PICKETT: I would agree on that for sure.

MR PUDOVSKIS: You had no issue with Ballardong people claiming rights over what is now your Karratjibbin claim area?

NORMAN PICKETT: No doubt and I probably, if I had the opportunity, I would’ve probably would’ve extended it.

982    It is clear from that exchange that Norman Pickett considered that it was correct for Ballardong people to claim native title rights and interests in the western part of the trial area. A little later during cross-examination, Norman Pickett was asked whether there is anything different between the culture of Ballardong people and Karratjibbin people. The following exchange occurred:

MR PUDOVSKIS: In your understanding is there anything different between the culture of Ballardong people and Karratjibbin people?

NORMAN PICKETT: Yeah.

MR PUDOVSKIS: What’s the difference?

NORMAN PICKETT: Well, the white man put a line through the middle to say there’s – there’s a line specific in the middle for when there’s initiations that take place.

MR PUDOVSKIS: You say that the white man put a line. Do you think that that line is not really a proper line?

NORMAN PICKETT: Nobody else put that line in there.

MR PUDOVSKIS: And I think you said before that you think Ballardong actually goes further to the east.

NORMAN PICKETT: That’s what I said earlier.

983    Later, however, Norman Pickett gave inconsistent evidence. In response to the question whether he believes that all Ballardong people have rights in that Karratjibbin claim area, he answered in the negative. A short time later, however, he reiterated that what he was saying from the “old people” is that “the boundary would go further east”. When pressed again on the subject in cross-examination, Norman Pickett said that if he did not say it in his witness statement, then it was not what he wished to say. I consider that there was a degree of evasiveness in that answer. Ultimately, it was not possible to determine whether Norman Pickett considered that the Karratjibbin claim area was in fact Ballardong country.

Biographical background

984    Norman Pickett was born in 1959 in Cunderdin, which is west of Kellerberrin (and in Ballardong country).

985    Norman Pickett gave evidence that he grew up in Tammin, Yoting, Quairading, Brookton and Kellerberrin. All of those locations are west of the Karratjibbin claim area and are in Ballardong country. Norman Pickett moved to Port Lincoln in 1982. The impression I gained from his evidence was that he has spent a considerable part of his life living in Port Lincoln and Adelaide. At the time of giving evidence, Norman Pickett was residing in Perth. However, he explained in evidence that his usual residential address is now Kalgoorlie, but he was living away from Kalgoorlie during a period of mourning for his son-in-law who had died. Norman Pickett has never lived within the Karratjibbin claim area.

986    Norman Pickett’s father was Joseph Frederick Pickett (now deceased), whom Norman Pickett described as a Ballardong man. His mother was Dorcas May Pickett (née Yarran) (also deceased). His mother’s parents were Norman Yarran Snr and Beatrice Yarran. Dorcas Pickett was therefore the sister of Norman Yarran (Doy) and Reg Yarran Snr. Norman Pickett is a cousin of both Gail Yarran and Reg Yarran Jnr.

Karratjibbin ancestors

987    As set out earlier in these reasons, Reg Yarran Jnr’s witness statement contained the following evidence:

My grandmother’s parents (on father’s side) were (father) Toby Williams and (mother) Julia Penny.

Toby Williams’ mother was Eva, and both were born in Mt Jackson.

I claim my Karratjibbin heritage through my apical ancestors Eva and her son Toby.

988    Norman Pickett’s witness statement contained the following evidence:

My grandmother’s parents (on father’s side) were (father) Toby Williams and (mother) Julia Penny.

Toby Williams’ mother was Eva, and both were born in Mt Jackson.

989    It can be seen that Norman Pickett’s evidence concerning his forebears is the same as Reg Yarran Jnr’s evidence. I infer that Norman Pickett’s evidence was copied from Reg Yarran Jnr’s evidence because the copying produced an error. In each witness statement, the grandmother being referred to is Beatrice Winmar. In the case of Reg Yarran Jnr, Beatrice is his grandmother on his father’s side. In the case of Norman Pickett, however, Beatrice is his grandmother on his mother’s side (contrary to his witness statement). During cross-examination, Norman Pickett was asked questions about Toby Williams. It was apparent from his answers that he had no real knowledge about Beatrice’s parents. It can also be seen that Norman Pickett’s witness statement did not copy one aspect of Reg Yarran Jnr’s witness statement, being the statement: “I claim my Karratjibbin heritage through my apical ancestors Eva and her son Toby”.

990    In oral testimony, Norman Pickett was asked whether his uncles, Norman (Doy), Conway and Reg Snr, ever spoke about their mother’s (Beatrice’s) country. Norman Pickett replied that, when they went to Mukinbudin, they were told that was Beatrice’s country. Norman Pickett said that he believes that Beatrice was born at Mount Jackson (before she was removed to Kellerberrin) and that it was his “elders” who told him that. Norman Pickett believes that Beatrice had rights in the Karratjibbin claim area because she was born in Mount Jackson.

991    Norman Pickett’s evidence with respect to Beatrice’s place of birth is consistent with Reg Yarran Jnr’s evidence. However, as noted in the context of Reg Yarran Jnr’s evidence, that evidence is inconsistent with the information conveyed by Reg Yarran Snr to Dr Shaw in the interview conducted in 2002. At that time, Reg Yarran Snr said that his mother was born somewhere between Kellerberrin (outside the Karratjibbin claim area) and Southern Cross and that he did not know where. As noted earlier, Beatrice’s death certificate records her place of birth as Kellerberrin. Weighing all of the evidence, I do not accept that Beatrice was born near Mount Jackson. In any event, none of the evidence concerning the traditional laws and customs that applied in the western part of the trial area suggest that rights and interests in country are conferred by place of birth.

Karratjibbin cultural knowledge

992    In his witness statement, Norman Pickett gave the following evidence with respect to Karratjibbin cultural knowledge:

I was taught Karratjibbin culture by my older siblings, cousins, parents, uncle and aunties, gran parent’s elders, and those who were strong Lore knowledge holders, they would share what they were allowed to.

Language was not spoken by my generation. We heard our grandparents speaking in our language but were not educated or encouraged to speak it as you had to be accurate, or it would cause offence.

I maintained my cultural practices through hunting or tracking food e.g. kangaroos, porcupines, gathering foods and medicines eg, tree sap from trees, berries, quandongs, and plants. I always acknowledge spiritual and traditional practices, understanding art presented, maintaining natural resources and protection.

We as a child were told and shown stories by drawings on the ground from our parents or elders. Paintings now were passed down from my brothers depicted stories and song lines, that are and still so important to maintain and understand for the future generation.

993    As noted above, that evidence is nearly identical to the evidence given by Gail Yarran in her witness statement.

994    In oral testimony, Norman Pickett gave evidence about the work of his deceased brother, Shane Pickett (whose Aboriginal name was Meeyakba), who is a celebrated artist. A reproduction of one of Shane Pickett’s paintings, done in 1999, was tendered in evidence. The painting depicted two rainbow bee-eater birds. As discussed later in these reasons, the totem associated with one of the two generation moieties of the Kapurn people is the rainbow bee-eater. Norman Pickett gave evidence that there were stories behind the rainbow bee-eater birds that concern their special significance to Karratjibbin country.

995    Despite Norman Pickett’s evidence, I am not persuaded that Shane Pickett’s painting of the two rainbow bee-eater birds conveys a reference to the laws and customs of the Karratjibbin or Kapurn people. The reproduction of the painting was from a book published about Shane Pickett and his art titled Meeyakba. In that book, the following quotation is attributed to Shane Pickett:

I am Meeyakba Shane Pickett, a painter of the Nyoongar lands. I am privileged to have been taught the traditions and cultural values of my father’s Jdewat people and also my mother’s Ballardong people.

996    The foreword to the book was written by Shane Pickett’s wife, Violet Pickett, who wrote:

Shane Pickett was a Nyoongar artist of the highest level, who made a career from something he loved. This is rare for us as Nyoongar people. We find it hard just to survive. Shane was a strong Nyoongar man, a family man who respected his elders and knew his links to his country. He was inspired by the beauty of it, a country rich in knowledge, wisdom and belonging. Shane’s vision was to create artworks that honour Nyoongar traditions and culture, incorporating the values of his father’s Jdewat people and his mother’s Balladong people.

997    Throughout the book, Shane Pickett is only ever described as a Noongar man. He is never described as Karratjibbin or Karlamaya or Kapurn. The title for the painting of the two rainbow bee-eater birds is Rainbow Bee-eaters – Bunuru 1999. Norman Pickett explained that the word bunuru is a Noongar word for one of the six seasons recognised by Noongar people.

998    In oral testimony, Norman Pickett said that his grandmother, Beatrice, lived variously in Quairading, Yoting and Badjaling (which is part of Ballardong country). Norman Pickett was taken hunting by his uncles (being his mother’s brothers including Conway, Norman and Reg Snr) whenever he visited Beatrice. Norman Pickett said they hunted with a 22-calibre rifle, a shotgun and kangaroo dogs. The leader of the hunting trips would be the most knowledgeable elder, usually his Uncle Norman (also known as Uncle Doy) and Uncle Conway. Norman said that he went hunting with his uncles for porcupine, goannas, rabbits, possums and different types of kangaroos, including red kangaroo, plains kangaroo, red hill kangaroo (which people called bigarrda). He also said he gathered other things including berries, quandongs and duck eggs. The aunties who were in charge of food gathering were his Aunty Rhoda and Aunty Laurel.

999    Norman Pickett said that they went hunting within the trial area, around Mukinbudin, Mollerin, Beacon and down to Mount Holland, depending on the season and where the food was. Norman said sometimes they would bring the meat home to be cooked, and at other times they would cook the food out in the bush. Norman said that there is a significance or a connection between the dead animal and the ground where it was killed. He said that they would roll the animal in the dirt that you got it from. Norman still goes hunting with one of his sons, and with his nephews if they are around.

Karlamaya Kapurn people

1000    During cross-examination, Norman Pickett was asked whether he had ever called himself a Kapurn person. He answered:

I can’t say I’m a Kapurn person. I don’t believe Kapurn is a part of me.

1001    Norman Pickett said that he does not know Kapurn country and does not know anything about the laws and customs of Kapurn people.

Jason Colbung

1002    Jason Colbung made a statement dated 6 September 2023. He gave evidence at the Kalgoorlie Town Hall on 12 October 2023 and was cross-examined.

1003    Jason Colbung was born in 1974 in Quairading (in Ballardong country to the west of the trial area). He grew up in Quairading and has lived there most of his life, apart from two or three years when he lived in Meekatharra. He has never lived in the Karratjibbin claim area.

1004    Jason Colbung’s father was Peter Colbung (now deceased), who was a Noongar man from the Mount Barker area (in the south-west of Western Australia). His mother was Ivy (Bertha) Colbung (née Yarran) (also deceased). His mother’s parents were Norman Yarran Snr and Beatrice Yarran. His mother was therefore the sister of Norman Yarran (Doy), Dorcas May Pickett and Reg Yarran Snr. Jason Colbung is a cousin of each of Gail Yarran, Norman Pickett and Reg Yarran Jnr.

1005    In his witness statement, Jason Colbung gave very limited evidence as follows:

I would frequently travel to country for traditional purposes.

We travelled out to Bonnie Rock to set lizard traps to catch goanna, shoot kangaroos and cook this food in traditional ways.

We went to Marvel Loche to make traditional tools.

We went from Burracoppin to Koolyanobbing to get traditional prickly bush medicine to cure cancer and ailments.

We used to catch bush turkey from Cleary to Mukinbudin.

Our elders would tell us about the Emu in the sky which meant to hunt and gather emu eggs, catch emu for fat, medicine and meat.

We use eggs for art and tribal exchange.

1006    During examination-in-chief, Jason Colbung said that he did not remember going to Marvel Loch to make traditional tools.

1007    During cross-examination, Jason Colbung was asked about the process of making his witness statement. Although his evidence was somewhat vague, he agreed that it was likely that Reg Yarran Jnr had asked him to make his witness statement, and he also agreed that it was possible that someone wrote part of the statement and asked him whether he agreed with it.

1008    During cross-examination, Jason Colbung said that he had never heard of a place called Karratjibbin Hill. That evidence is starkly inconsistent with the evidence given by Reg Yarran Jnr, who stated that Karratjibbin Hill was “part of our songlines our history”.

1009    During cross-examination, Jason Colbung said that he does not call himself a Kapurn person and that he does not know anything about the laws and customs of the Kapurn people.

1010    Assessing Jason Colbung’s evidence as a whole, I accept his evidence that he travelled into the western part of the trial area on hunting trips with his father and uncles when he was a young man. I place no weight on his written evidence that he travelled into that area for “traditional purposes”. That phrase was not explained in Jason Colbung’s evidence and is capable of bearing different meanings. Apart from giving the above limited evidence concerning hunting trips, Jason Colbung did not give any evidence about the traditional laws and customs of Karratjibbin people.

Glenys Yarran

1011    Glenys Yarran is the mother of Reginald Yarran Jnr, and the widow of Reginald Yarran Snr. She resides in Perth.

1012    Glenys Yarran made a written statement dated 4 September 2023. She gave evidence at the Kalgoorlie Town Hall on 12 October 2023 and was cross-examined.

1013    The scope of Glenys Yarran’s evidence was very limited. In her statement, Glenys Yarran disagreed with evidence that had been given by Leeroy Bilney in relation to a trip that Leeroy went on to Southern Cross with his grandfather, Malcolm Ben Champion, together with Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr in about 1998 in connection with the Ballardong claim. That evidence has been considered earlier in these reasons. The substance of the evidence was that Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr were asking questions of Malcolm Ben Champion seeking information about the Southern Cross area.

1014    In her written statement, Glenys Yarran denied asking questions of Malcolm Ben Champion (or her husband). She stated that it was not her place to question men about country which she had no connection to. She also stated that someone asked the group lots of questions about places that they were being driven to, and that these questions were discussed by her husband and her son, with her son explaining the questions and relaying the answers he was provided by the men.

1015    Whilst Glenys Yarran denied that she asked questions of Malcolm Ben Champion during the trip to Southern Cross, she did not materially undermine Leeroy Bilney’s evidence that her husband and son were seeking information from Malcolm Ben Champion about the Southern Cross area.

F.5    Evidence from deceased forebear of the Karratjibbin claimants (Reg Yarran Snr)

1016    As noted above, between 1999 and 2002, anthropologist Dr Bruce Shaw undertook a number of interviews with Reg Yarran Snr. Reg Yarran Snr died in 2004.

1017    The interviews were conducted for the purposes of the Ballardong claim which covered an area to the south-west of the trial area but, in its original form, included a large part of the trial area including, for example, Mount Jackson, Southern Cross, Marvel Loch, Westonia and Kalannie (largely covering the Karratjibbin claim area). The Ballardong claim was amended in 2008 to withdraw the boundary of the claim area to what is now the south-west boundary of the trial area.

1018    A document was tendered in evidence (by the Marlinyu Ghoorlie applicant) which contains both transcripts of interviews conducted by Dr Shaw and notes or compilations of the interviews prepared by Dr Shaw. The transcripts and compilations reveal that the interviews were focussed on the Ballardong claim, with the Ballardong people being a part of the wider Noongar nation. However, in an interview conducted in 2002, Reg Yarran Snr stated his belief that his grandmother (his mother’s mother), Julia Penny, held rights and interests in the area around Mount Jackson. The relevant aspects of that evidence are set out below.

1019    As disclosed in the evidence of Reg Yarran Jnr, Reg Yarran Snr was Reg Yarran Jnr’s father. He was born in 1944 and died in 2004. Reg Yarran Snr’s parents were Norman Yarran Snr (whom Reg Yarran Jnr described as a Ballardong man) and Beatrice (whom Reg Yarran Jnr described as a Karratjibbin woman). Beatrice’s parents were Toby (Nimmo) Williams and Julia (Dunniyan) Penny.

1020    Reg Yarran Snr’s wife, Glenys Yarran, and his son, Reg Yarran Jnr, also attended the interview conducted in 2002 and, indeed, answered the majority of questions that were asked. Although the transcript of their answers is hearsay, it was admitted into evidence without objection (in part because the transcripts were relied upon by Dr Corrigan). Nevertheless, it should be noted that, although Reg Yarran Jnr and Glenys Yarran gave evidence at trial, neither of them expressly adopted or repeated what they said to Dr Shaw at the interview. The failure to give sworn testimony about those matters diminishes the weight that I am prepared to give to the hearsay statements appearing in the transcript. Furthermore, aspects of the evidence given by Reg Yarran Jnr are inconsistent with statements made at the interview.

1021    The first transcript adduced in evidence comprised a transcript and notes of an interview between Dr Shaw and Reg Yarran Snr conducted on 30 June 1999. By way of biographical context, Reg Yarran Snr stated that he was born in 1944 in Quairading. He went to school at Badjaling Mission and, when that closed down, the family moved into Quairading and he went to the state school. After school, Reg Yarran Snr worked as a shearer on many farms, and also worked as a farm labourer, amongst other jobs. Reg Yarran Snr said that he had lived most of his life around Quairading, for 10 years he had lived in Northam, and in the last 5 years he had moved to Perth. Reg Yarran Snr said that “My family’s country is from Mount Stirling”. Reg Yarran Snr’s personal history indicates that he never lived in the Karratjibbin claim area. It is relevant to note that Reg Yarran Snr recounted for Dr Shaw a number of “dreaming stories”, including the story of the Wagyl which travelled from “Ayers Rock”, through Mount Stirling, and through to the Swan River in Perth. Wagyl is a Noongar word for snake, and particularly the serpent creative being.

1022    Dr Shaw interviewed Reg Yarran Snr again on 26 and 27 August 1999 as they travelled to various locations within the Ballardong claim area. The interviews were focussed on Reg Yarran Snr’s knowledge of the locations and associated Noongar laws and customs in the form of stories for those places. The interviews reveal Reg Yarran Snr’s strong identification as a Noongar man.

1023    The most significant interview for the purposes of this proceeding is the one conducted by Dr Shaw at Reg Yarran Snr’s home on 8 January 2002 together with Glenys Yarran and Reg Yarran Jnr. In the transcript, the words spoken by Dr Shaw are reproduced in bold type, the words spoken by Reg Yarran Snr are reproduced in regular type, the words spoken by Glenys Yarran are reproduced in underlined italics and the words spoken by Reg Yarran Jnr are reproduced in italics. Both Reg Yarran Jnr and Glenys Yarran had considerable involvement in the interview, on some occasions prompting Reg Yarran Snr and on other occasions answering the questions themselves.

1024    In the introduction to the 2002 interview, Dr Shaw stated that the “emphasis of this discussion will be Reg [Snr]’s connections through his mother’s line having told me in other sessions about the father’s male line of descent and connections to country”. It is apparent from the transcript that the interview centred upon one or more genealogies that had been prepared by Reg Yarran Jnr from research conducted of archival material. During cross-examination, Reg Yarran Jnr agreed that, after the Ballardong claim had been filed, he began undertaking research into the Ballardong claim area which, at that time, included the Karratjibbin claim area. Reg Yarran Jnr travelled to Adelaide for that purpose to search for archival materials (including Tindale records) at the South Australian Museum and Adelaide University. The 2002 interview commences with Reg Yarran Jnr saying to his father: “Dad we’ve got the family tree there”. The genealogies (family tree) being referred to during the interview are not in evidence. As discussed below, genealogies prepared by Reg Yarran Jnr were considered by Dr Corrigan in his evidence and found to be unreliable in many respects. Some of the statements made by Reg Yarran Snr in the course of the interview appear to have been prompted by what appeared in the genealogies that had been prepared by Reg Yarran Jnr from research of historical records. Those circumstances diminish the weight that should be attributed to the statements made by Reg Yarran Snr during the interview.

1025    After Reg Yarran Snr confirmed that his father’s name was Norman and his mother’s name was Beatrice, Reg Yarran Jnr and Glenys Yarran largely took over, stating that the name of Beatrice’s father was Fred Winmar and the name of Beatrice’s mother was Julia Penny. Reg Yarran Jnr stated that “her real name was Dynnian”. Dr Shaw referred to that name as her Noongar name without contradiction. It is apparent from the transcript that Reg Yarran Jnr and Glenys Yarran pronounced the name as ‘Dunnyan’, and Dr Shaw asked how the name was spelled. Glennys Yarran spelled out the name for the benefit of Dr Shaw, and Reg Yarran Jnr explained that there is no ‘u’ in the “Noongar vocabulary”. It is significant to note that Reg Yarran Jnr and Glenys Yarran considered that Julia Penny’s Aboriginal name was Noongar, and that was not contradicted by Reg Yarran Snr.

1026    The historical evidence, considered later in these reasons, indicates that Beatrice’s biological father was not Fred Winmar but was a man named Toby (Nimmo) Williams, who was Julia Penny’s first husband. Fred Winmar was Julia Penny’s second husband and Beatrice’s stepfather. Toby (Nimmo) Williams is not referred to in the interview with Dr Shaw, suggesting that, at that time, the Yarran family were not aware of him.

1027    The interview continues for a considerable period of time with Glenys Yarran and Reg Yarran Jnr answering the questions relating to the family tree on Reg Yarran Snr’s mother’s side. After a while, Dr Shaw asks Reg Yarran Snr about his mother’s (Beatrice’s) country and the following exchange occurs (the words spoken by Dr Shaw being marked in bold type):

What’s what’s her country?

My mother’s country is is the Kalamaia country.

Where was she born?

She was born in the bush out there somewhere.

That’s Beatrice?

Mm.

She was born in the bush (inaudible) -

Yeah. No. No no idea where it is. It could be from Kellerberrin right up to to Southern Cross.

Right so she was born somewhere in that -

Yeah.

That way.

In that area.

Right. Yeah. And what about her mother Julia then? Do you know where she came from? Dynnian.

Dynnian Dynnian was born in in Gnowangerup.

1028    The above passage is significant because Reg Yarran Snr stated that his mother’s country is Karlamaya country. However, he does not know where his mother was born, and does not explain why he believes that her country is Karlamaya country. The historical evidence considered later in these reasons indicates that Beatrice was born in Kellerberrin, which is in Ballardong country to the west of the Karratjibbin claim area. In the interview, Reg Yarran Snr does not identify what he understands to be Karlamaya country, although there is a hint that he considers the country to be between Kellerberrin and Southern Cross. At the time of the interview, Reg Yarran Snr was a named applicant on the Ballardong claim which, at that time, covered the Karratjibbin claim area. The Ballardong claim was brought on behalf of a claim group who identified themselves as the Ballardong people, a sub-group of Noongar peoples. There is no discussion in the interview of how Reg Yarran Snr reconciled being a named applicant on a claim that identified the area surrounding Southern Cross as Ballardong (Noongar) country and, at the same time, identifying the area as Karlamaya country. It is also significant that Julia Penny’s Aboriginal name, Dynnian (or Dunniyan), is said to be a Noongar name and she was born in Noongar country, in Gnowangerup.

1029    It is relevant to note that Reg Yarran Snr does not use the name ‘Karratjibbin’ to describe his mother’s country (and, in these interviews, never uses that name). Rather, he refers to Karlamaya country. Indeed, the word ‘Karratjibbin’ is never used during the interview. The word is not used to refer to the Aboriginal people who hold rights and interests in the western part of the trial area. Nor is there any reference to ‘Karratjibbin Hill’ as the location of an important spiritual site.

1030    A little later, Dr Shaw asks about Julia Penny’s parents. It is apparent from the transcript of the interview that the questions are directed to the genealogy that had been prepared by Reg Yarran Jnr (referred to as the “family tree”). Initially, Reg Yarran Snr identifies Julia Penny’s parents as “Annie” and “Billy”. After that, most of the answers are given by Glenys Yarran and Reg Yarran Jnr, rather than Reg Yarran Snr. The following exchange occurred (again, with Dr Shaw’s words reproduced in bold type, Reg Yarran Snr’s words reproduced in regular type, Glenys Yarran’s words reproduced in underlined italics, and Reg Yarran Jnr’s words reproduced in italics):

Okay. So, so getting back to Julia Penny, do you know who her mother’s mother and father were? Is that on the family tree?

Yeah that’s her mother and father was Annie Annie and Billy.

(inaudible) and -

Annie Donald McIntyre.

Annie Donald Mclntyre -

Who? Sorry.

Annie Donald

…

Right and her man -

And her father was a full blood -

Right.

Billy Yamdinut.

How would you how (inaudible)?

Y A M B I N U T.

Yambinut. Okay. Does the family tree go back further for those two people?

No.

No we couldn’t find any more after that.

There’s nothing.

What was their country? What was Billy's country? Same as -

Yeah -

Well Julia was from Gnowangerup so -

No she was born down there.

She was born -

Yeah.

Born in Gnowangerup.

Oh what should have been her country if she was, she was born because what her parents moved there for a while?

We found out that Annie her mob came from like near Mount Margaret -

Okay that’s out in the desert.

But Julia’s -

But Julia’s father came from Southern Cross.

Billy’s from Southern Cross and Annie Donald McIntyre -

Then she came in too thing there.

Well I think that Annie Donald must have come from around Southern Cross -

Cross too.

Because there’s a lot of she should have been Donaldson because there's Donaldsons up in that area.

Right.

But they because Native Welfare files they just put Donald.

They changed it around. Yeah.

And she was originally she was around the Wongan Hills -

Good.

From Wongan Hills back to Bullfinch area her family (inaudible) was.

Yeah.

That’s come out that’s coming out of a document you’ve been able to -

Yeah.

That’s Native Welfare document.

That what we found.

Yeah.

1031    It is apparent from the foregoing that the information concerning Julia Penny’s parents had been obtained from historical research, not through oral family history. Reg Yarran Jnr states that they had been unable to find any forebears earlier than Billy and Annie. Reg Yarran Jnr and Glenys Yarran made statements to the effect that Julia Penny’s father, Billy Yambinut, “came from Southern Cross”. No basis for that statement is given. Reading the transcript as a whole, it appears that the information was based on a combination of documentary research and speculation. It is not based on oral family history. The above passage contains further speculation. Glenys Yarran stated that Annie Donald’s real name was “Donaldson”, apparently on the basis that “there’s Donaldsons up in that area” (Southern Cross). The statement that Annie Donald’s real name was “Donaldson” has no foundation. It was not repeated by Glenys Yarran when she gave evidence at trial. I place no weight on it.

1032    Although Glenys Yarran gave evidence at the trial, she did not refer to Billy Yambinut. Reg Yarran Jnr also gave evidence at the trial, but his evidence concerning Billy Yambinut was inconsistent. In his first witness statement, Reg Yarran Jnr stated that he claimed his “Karratjibbin heritage” through his ancestor Toby Williams who was the father of Beatrice Winmar, rather than through Julia Penny who was the mother of Beatrice Winmar (although later in the statement he confusingly described “Polly” and Billy Yambinut as “our 2 main ancestors”). Similarly, in his third statement, Reg Yarran Jnr stated that “my ancestor Billy Yambinut” is part of the country at “Karratjibbin Hill” but provided no basis for that belief. The failure of Reg Yarran Jnr to give evidence at the trial as to the basis of his belief that Billy Yambinut came from Southern Cross, and the inconsistency of his evidence concerning the origin of any rights and interests in the Karratjibbin claim area, diminish the weight that I am prepared to give to these passages in the interview.

1033    Later in the interview, Dr Shaw asks Reg Yarran Snr about contact he had with “some old Kalamaia men who lived around Badjaling” who helped “bring you up and taught you things”. The following exchange occurred with respect to Percy Carnie (Carney):

Yeah. What were their names, what was their country, how did they get to be living in Badjaling and not in their country and how what, what sort of things did they do when they brought you up?

Well the last old old fellow who lived with us. …

…

Was Granny Percy Carnie -

Granny?

Percy Carnie.

Carnie?

Yeah.

Right.

He lived with us for many years and that’s him there look.

Right. Yep. Go on. Yeah.

And he always spoke about the Kalamaia people and he always said your mother is my niece and your grandmother is my sister.

Right.

And he always spoke and told us I’ll take you back to the Kalamaia country and show you, right across the ranges, right across the hills.

What are the names of these hills?

Mount Jackson -

Right.

Helena.

Bullfinch.

Elena. Bullfinch. Emu Valley. Golden Valley and -

How old were you then when he was telling you those things?

Well I we was together me and Glenys, this is old Granny Percy because he was the last the last old old man from the tribal area out there.

About seventy six because I was born in seventy seven.

And how but be brought you up didn’t he?

No he came and stayed with us. He lived with us.

He stayed with you and told you some things?

Yeah.

…

So how old were you Reg when you when you first met him?

Oh I might have been -

Oh, he met him before than in (inaudible).

Yeah.

Yeah.

I must have been about thirty six.

About thirty six. Thirty six. I got my arithmetic wrong. Okay. And and he told you this. Did he ever get to take you to the country. You said he promised to take you.

I promised to take him out to Golden Valley to blow up some stones and at that time we never had any decent cars or four wheel drives to get in that country -

…

And he just he just told me the stories of that country saying that’s his country and that is his sister’s country, Dynnian and that was his niece’s country.

Right.

Which is my mother Beattie. …

1034    In the above passage, Reg Yarran Snr says that Percy Carnie (Carney) told him that Julia Penny was his (Percy’s) sister and that Beatrice was his (Percy’s) niece. That is consistent with the historical evidence discussed later in these reasons. The historical evidence indicates that Percy Carney was the son of Annie Donald / McIntyre and a man named Tom Carney. As such, Percy Carney was a half-brother to Julia Penny and uncle to Beatrice. However, the available historical evidence provides no support for a conclusion that Percy Carney was a Karlamaya Kapurn man, and the evidence indicates that he lived a lot of his life outside of the trial area.

1035    A little later, the following exchange occurred in relation to Don Roundhead:

Right. Who were the other old people who told you some of these things?

Old Don Roundhead -

That’s old Don.

Don Roundhead is my my uncle, my uncle -

Your uncle.

And he is my mother’s cousin.

Mother’s cousin.

First cousin brother. That's how the blackfellers say. Brother cousin.

Is this through direct blood ties or is it -

Yeah.

Yep.

By the skinning Law -

No direct.

Direct.

It’s direct descent. It’s … blood ties.

Well I’ll show you in th genealogy there. Now we travelled a lot away for this thing too. This genealogy.

Sorry you travelled -

Yeah l had to go to miles to get this thing.

That’s to Adelaide?

Yeah.

…

This is Julia. Julia’s husband. This is Julia’s cousin, where is she? Julia’s Julia’s sister is Eva. Eva and Julia are sisters and Eva is married to what’s his name? Don Roundhead’s father.

Right.

Don Roundhead’s here -

Yes.

And Beattie’s come down here -

Right.

And that’s where Julia’s linked up here with her sister Eva.

Where does that link through to your family?

That comes along here. Yep. Right along here.

Right.

Yeah.

I see. Okay. So what did that man tell you?

Pardon.

What sort of things did that man tell you? That elder.

That Eva and Dynnian were sisters and Don Roundhead -

Right.

And Beattie were first cousins. She called he called her, what was her Noongar

Querk. Choogan.

Choogan. Choogan.

Choogan.

Choogan.

Which means -

Sister.

Sister.

Yeah.

Little woman sis.

Right.

That’s in Kalamaia.

Sorry.

We know the language.

1036    In the above passage, Reg Yarran Snr says that Don Roundhead is his uncle and is his mother’s (Beatrice) cousin. However, the basis for that statement appears to be the genealogy prepared by Reg Yarran Jnr. It is apparent from the transcript that Reg Yarran Jnr takes Dr Shaw through the genealogy, pointing out the relationships shown on the genealogy. It is apparent that the genealogy depicts Don Roundhead’s mother, Eva, as Julia Penny’s sister, and thereby depicts that Don Roundhead is Beatrice’s cousin. It is significant that Reg Yarran Snr does not state that Don Roundhead told him that his mother, Eva, was Julia Penny’s sister. It appears that the belief that Eva was Julia Penny’s sister comes wholly from the historical research conducted by Reg Yarran Jnr. As discussed later in these reasons, the historical evidence contradicts that belief and indicates that Reg Yarran Jnr’s research involved the misinterpretation of historical documents.

1037    In the above passage, Reg Yarran Jnr states that Don Roundhead called Beatrice “Choogan”. Later in the interview, that statement was repeated by Reg Yarran Snr. Accepting the possibility that Don Roundhead did call Beatrice “Choogan”, I consider that to be an insufficient basis upon which to conclude that there was any direct familial relationship between them. In the above passage, Reg Yarran Jnr stated that “Choogan” meant “sister” in Karlamaya language and that “we know the language”. Nell Taylor gave evidence, which I accept, that “Choogan” is the word for sister in the Noongar language, not the Karlamaya language. Ms Taylor referred to the Noongar Dictionary (2nd ed, Whitehurst, 1997) which gives djookin as the word for sister, whereas the Kaalamaya Dictionary (Draft, Hanson, 2012) gives jurtuny, jurtuya or ngalarn as the words for sister. The “Kabboon” vocabulary compiled by Daisy Bates in Coolgardie from Kaddee and another woman named Dharroon similarly gives the word joordoyn for sister. In his evidence at trial, Reg Yarran Jnr did not display any knowledge of the Karlamaya language. As discussed later in these reasons, the historical records indicate that Frank Roundhead’s second wife, May, left Frank to live with Percy Carney. As discussed below, Frank Roundhead was Don Roundhead’s uncle and adoptive father (after Don Roundhead’s biological father, Tom, died). As Ms Taylor observed in cross-examination, Percy Carney’s relationship with Frank Roundhead’s second wife may provide an explanation for Don Roundhead referring to Beatrice as “sister”.

1038    Later in the interview, Reg Yarran Snr told Dr Shaw that he learned about certain significant sites near Mount Jackson (within the Karratjibbin claim area) from Don Roundhead. Reg Yarran Snr said that Don Roundhead spoke about the sites when he was speaking to young men near Badjaling. Reg Yarran Snr was a small boy at the time, but he was present with his mother and father when Don Roundhead was speaking. Reg Yarran Snr said that Don Roundhead visited his parents from time to time, but would then return east (to Karlamaya country).

F.6    Lay witness evidence for the Cooper respondents

Introduction

1039    Each of the Cooper respondents gave evidence. Their evidence is considered in this section of the reasons.

1040    As noted earlier, the Cooper respondents contend that they hold native title rights and interests in the eastern part of the trial area (and areas to the east of the trial area) through descent from a woman named Nada Bilbear (also known as Aneida). It is uncontroversial that Nada Bilbear is the great grandmother of the Cooper respondents. The Cooper respondents’ father was Norman Cooper Snr (who died in 1992); Norman Cooper Snr’s father was Thomas Henry Cooper (who died in 1951); and Thomas Cooper’s mother was Nada Bilbear. The area in respect of which the Cooper respondents contend that they hold native title rights and interests was hand drawn by each of the Cooper respondents on a map annexed to each of their witness statements. The area drawn on each map was similar and depicted a rough rectangular shape part of which overlapped with the eastern part of the trial area (extending west to Bullabulling) and part of which covered land and waters to the east of the trial area (extending east to Gindalbie). The area is south of Menzies, Laverton and Mount Margaret.

1041    In their concise statement, the Cooper respondents contend that the “normative system” that gave rise to Nada Bilbear’s native title rights and interests were those laws and customs of the pre-sovereignty society that held rights and interests in the eastern part of the trial area. They contend that the normative system of that society was Western Desert laws and customs that had been influenced by the location of that society in an “interstitial zone”. Specifically, the content of those traditional laws and customs was:

(a)    a ‘multiple pathways’ tenurial system with recruitment via: birthplace in the area; ceremonial responsibility for country; long-term residence; association with a part of the area known as a ‘run’; biological descent through patrifiliation and matrifiliation; the raised-up adoption of children; incorporation including by relocation to a spouse’s country;

(b)    a four-class section system for social organisation; and

(c)    laws and customs associated with tjukurpa (Dreaming) including: the identification of totems; and describing one’s country in terms of sacred sites or geographic places in the landscape.

1042    The evidence of the Cooper respondents demonstrates that they identify themselves as Western Desert people who speak the Wongatha language and consider themselves to be part of a broader grouping of Wongatha people or “Wongi”. Unsurprisingly, in their evidence the Cooper respondents did not refer to the eastern part of the trial area as an “interstitial zone”. They expressed the belief that Wongatha people had occupied the eastern part of the trial area since prior to European settlement. There is no doubt in my mind that the Cooper respondents grew up being told by members of their family that the area surrounding Kalgoorlie and Coolgardie, and east to Gindalbie, was “their” country. There is also no doubt in mind that the Cooper respondents sincerely believe that that the area surrounding Kalgoorlie and Coolgardie, and east to Gindalbie, was “their” country. However, a significant issue that arises is the basis for that belief.

1043    The Marlinyu Ghoorlie applicants contend that many Western Desert people possess knowledge of the sacred places and stories of the eastern portion of the trial area because, prior to European settlement and continuing after that time, the Karlamaya Kapurn people and neighbouring Western Desert people participated in shared ceremonies within the eastern portion of the trial area. The Marlinyu Ghoorlie applicants contend that, following the Goldrush and resulting influx of European people, some neighbouring Western Desert people migrated into the trial area, including particularly to Kalgoorlie or surrounding areas.

1044    Although Gary Cooper is the youngest of the Cooper respondents, he took a lead role in giving evidence in support of the claims being made by the Cooper respondents. His witness statement was the lengthiest, and he gave evidence on country about significant locations (whereas neither of his older brothers gave evidence on country). The reason for that was explained by Norman and Victor Cooper in their evidence.

1045    In his witness statement, Norman Cooper Jnr said:

My brother Gary Cooper was a special boy, which is why he has a lot of knowledge of country. He has also done a lot of cultural things which gives him permission to speak for special places.

1046    In his witness statement, Victor Cooper said:

Everything has been handed down from my father to Gary. That’s why Gary knows everything that is to do with our tradition and our sites. Gary speaks for a lot of the country, and when we want to know anything, we speak to Gary.

1047    In cross-examination, Victor Cooper said that he would say the same about Gary’s stepbrother, Murray Stubbs. Victor agreed that Gary was more knowledgeable than him about laws and customs.

1048    Having regard to that evidence, these reasons address the evidence of the Cooper respondents in the following order: Gary Cooper, Maria Bandry, Norman Cooper, Victor Cooper.

1049    In considering the evidence of the Cooper respondents, it is necessary to have regard to the available historical evidence concerning their grandfather, Thomas Cooper, and his mother, Nada Bilbear. The historical evidence is discussed later in these reasons, but I have taken that evidence into account in assessing the evidence given by the Cooper respondents. The following matters are particularly significant:

(a)    Nothing is known about Nada Bilbear’s origins, including her family or country. All that is known is that she was the mother of Thomas Cooper and gave birth to Thomas in or around Gindalbie in about 1896. Thomas’s father was a European man named Arthur Hasthorpe. Thomas was brought up on Gindalbie Station by Arthur Hasthorpe’s sister Jessie and her husband George Cooper. Thomas Cooper was the source of information for a genealogy and data collected by Norman Tindale at Mount Margaret Mission in 1939. Thomas was unable to provide a tribal identity for his mother, or any other information concerning her family or country. There is no evidence (oral or documentary) as to when and where Nada died, or the places she lived before she died.

(b)    No doubt reflecting his upbringing with George and Jessie Cooper, Thomas Cooper did not speak an Aboriginal language. Thomas served in the armed forces in World War I and married Trilby Ashwin (a Pirni / Darlot woman) in 1923. The historical records show that he lived and worked in areas to the north of the trial area, including Lake Darlot, Yelma Station, Leonora, Laverton and Mount Margaret Mission, for most of his life. He only came to Kalgoorlie shortly before he died in 1951, aged 54.

(c)    Thomas Cooper’s wife, Trilby Ashwin, moved to Kalgoorlie at some point, but the date is not clear from the evidence. An historical record provides evidence that Trilby was living with Archie Tucker in Kalgoorlie in 1951 but was just about to start a job at Yundamindera Station (180 kilometres north of Kalgoorlie). Nevertheless, the evidence of the Cooper respondents shows that Trilby was living in Kalgoorlie when Norman and Victor Cooper were young. Trilby died in Kalgoorlie in 1986, aged 84.

Gary Ashley Cooper

1050    Gary Ashley Cooper made a statement dated 27 September 2023, which was tendered in evidence in a revised form dated 12 October 2023. He gave evidence at the Kalgoorlie Town Hall on 18 October 2023. He also gave evidence at certain sites in the trial area: on 13 October 2023, at a site identified as a meeting place outside of Coolgardie, and at a site located near the Coolgardie Bluff; and on 17 October 2023, at the Mount Charlotte Reservoir Lookout and at a site identified as a sorry camp in Kalgoorlie. He was cross-examined on each occasion.

1051    Gary Cooper’s present residential address is in Kookynie, which is north of Menzies and a considerable distance north of the trial area. Gary Cooper is a person who is knowledgeable in Western Desert law and custom, and who has learned about Western Desert law and custom from his extended family. He appeared to speak the Wongatha language with fluency. He used the language name “Wongatha” as a descriptive name for the Western Desert people to the immediate north and east of the trial area who speak that language, whilst also acknowledging other tribal names for those people including particularly “Nanatjadarra” (being the spelling used by Gary Cooper for the “Ngaanyatjarra” people) and “Tjalkadjara”. Gary Cooper holds the belief that the lands and waters of the Wongatha speaking people extend into the eastern part of the trial area as far west as Bullabulling.

1052    Gary Cooper is a well-educated man and, in giving evidence, was both articulate and, at times, forceful. My impression was that those characteristics were the product of Gary’s career as an actor. In the main, I considered Gary Cooper to be a sincere witness who sought to give truthful evidence. However, there were certain aspects of his evidence where I considered that his evidence was not credible, and I considered that on occasions he was willing to exaggerate or imagine facts to be true when there was no real foundation for a belief that the facts were true. I formed that conclusion from a combination of the implausibility of the evidence in light of other evidence and the manner in which he answered questions (becoming evasive in his answers and agitated, which was a departure from his usual demeanour and articulation). The aspects of Gary Cooper’s evidence that I do not accept are indicated below.

1053    In his evidence, Gary Cooper sought to convey that:

(a)    he learned at a young age that the country of his father’s grandmother, Nada Bilbear, and his father’s father, Thomas Cooper, extended into the eastern part of the trial area;

(b)    he grew up on “Nada’s country” in the eastern part of the trial area;

(c)    he learned at a young age that his father’s grandmother’s tribal name was “Bilberri”, and that that tribe was a Western Desert tribe which was distinct from other Aboriginal people to the north and east of the trial area, including his mother’s people (Ngaanyatjarra) and his father’s mother’s people (Pirni / Darlot); and

(d)    he learned about “Nada’s country” from his father.

1054    However, as discussed below, I consider that the evidence reveals that:

(a)    a significant part of Gary Cooper’s childhood years was spent in Laverton, Menzies and Mount Margaret, amongst his mother’s extended family;

(b)    Gary Cooper acquired his knowledge of Western Desert laws and customs principally from his mother’s extended family; and

(c)    as late as 2017, Gary Cooper referred to his father’s grandmother, Nada Bilbear, as being Maduwongga (based on Tindale genealogical records).

1055    In his oral testimony, Victor Cooper confirmed that Gary Cooper, and his brother Murray Stubbs, spent a lot of time with their mother, Laurel Johnston, who “would constantly talk about culture”. Victor said that Laurel Johnston’s mother (Adelaide Johnston) would also be there and that she too “would talk a lot about her culture”.

1056    Taking the evidence as a whole (and for the reason explained below), I do not accept that Gary Cooper acquired knowledge of traditional laws and customs from his father. The evidence more strongly supports the conclusion that Gary Cooper principally acquired knowledge of traditional laws and customs from his mother’s extended family, and his knowledge is knowledge possessed by Ngaanyatjarra people.

1057    I also do not accept that Gary Cooper learned at a young age that Nada’s tribal name was “Bilberri”. There is a wealth of evidence, considered below, which indicates that the “Bilberri” tribal name is a recent invention, based upon the second name given to Nada in certain documentary records (Bilbear). I have concluded that Gary propounded that tribal name in his evidence, and claimed to have learned the name when he was young, in an attempt to bolster the plausibility of the Cooper respondents’ claim to hold native title rights and interests in the eastern part of the trial area. To some extent, the giving of that evidence undermined the overall credibility of his evidence.

1058    I also consider that Gary Cooper’s credit was undermined by another aspect of his evidence. As noted above, Gary Cooper attached to his witness statement a map of the trial area and surrounding areas, with a rectangular area hand drawn on the map in red ink. In his witness statement, Gary Cooper said that he drew the rectangular area on the map on 22 June 2023. He said that the area enclosed by the red rectangle was the area of “my country through Nada”. The rectangular area marked on the map was difficult to interpret because it did not consist of a single rectangle. It had other vertical lines which enclosed an area with cross-hatching, which area extended west beyond Coolgardie. Gary Cooper was asked about the area marked with cross-hatching in cross-examination, but his answers were unclear and unsatisfactory. He suggested that he had not drawn the cross-hatched area, implying that somebody else had done so, but then equivocated about that answer. In an effort to clarify the evidence, the following exchange occurred:

HIS HONOUR: … Mr Cooper, you answered Mr McAvoy’s questions that you’re the one that drew that big - the square around Kalgoorlie, weren’t you?

GARY COOPER: Yeah.

HIS HONOUR: And I’m just trying to understand because it’s not a single square; it’s a square but it’s also got things marked - - -

GARY COOPER: Well, I didn’t do those ones. I think - I don’t know how that but - - -

HIS HONOUR: Did you draw the things that are marked inside the square?

GARY COOPER: I drew around like this here. I drew another map, yeah, but then that’s - - -

HIS HONOUR: But did you draw the lines inside the square?

GARY COOPER: No, I didn’t do that. No, I didn’t do that. I went like that.

HIS HONOUR: So you only did one square you say; yes, is that right?

GARY COOPER: That’s right, yeah.

HIS HONOUR: You just did one.

GARY COOPER: Yeah, like that.

HIS HONOUR: And you think somebody else has drawn those other lines.

GARY COOPER: Yeah, because they were going I can put the boundary on - righto - because we can’t see. I couldn’t see that thing when I first drew because I can’t see when I did the map further. I told the counsel too I can’t see. I didn’t have glasses on but I went this was the area, that’s it.

…

MR McAVOY: Yes. So you’re saying that you didn’t draw that red line.

GARY COOPER: I did - not that thing there. I did the square. I did the circle.

MR McAVOY: Well, who drew the red line, Mr Cooper?

GARY COOPER: Pardon?

MR McAVOY: Do you know who drew that red line?

GARY COOPER: Perhaps it was me; I don’t know. I can’t - couldn’t see so I went no, okay, go back, hang on, that’s nothing - that’s nothing there.

MR McAVOY: But you’ve attached it to your affidavit, Mr Cooper.

GARY COOPER: Yeah.

MR McAVOY: So are you saying you attached somebody else’s map.

GARY COOPER: No, that’s my map but not that two little lines there. Well, maybe I did but I - that’s my square. That’s what I said.

1059    I consider that Gary Cooper was being evasive in answering questions about the map attached to his witness statement. The rectangular area had only been drawn on the map about three months before Gary Cooper first made his written statement (on 27 September 2023) and about four months before he gave evidence (on 18 October 2023). I do not accept that he had forgotten the manner in which the rectangular area was drawn.

1060    Gary Cooper’s sister, Maria Bandry, also drew (in blue ink) a rectangular area on a map of the trial area and surrounding areas, to depict the country of Nada Bilbear. Gary Cooper said in cross-examination that Maria drew the area on her map on the same day as Gary (and at the same location), but they did not discuss the areas each of them marked. The rectangular area drawn by Maria Bandry largely coincides with the outer boundaries of the rectangle drawn on Gary Cooper’s version (that is, the rectangular area together with the cross-hatched area). In cross-examination, Gary Cooper said that he had never previously discussed with his sister, Maria, what a map of Nada’s country would look like. I consider that that answer is not credible. That is for three reasons. First, it is implausible that, in applying to be joined to this proceeding to assert native title rights and interests in an area of land and waters as descendants of Nada Bilbear, the Cooper respondents had not discussed the boundaries of the area that they claim to be Nada’s country. Second, each of Maria Bandry and Victor Cooper contradicted that evidence. Maria Bandry said during cross-examination that she had discussed the area of Nada’s country with Gary “back in the day”. As discussed below, I consider that evidence to be less than fully candid, but it supports the obvious conclusion that the Cooper respondents must have discussed the geographic area that they were claiming to be Nada’s country for the purposes of this proceeding. Victor Cooper also agreed during cross-examination that, in recent years, he had had discussions with Gary about the boundaries of Nada’s country. Third, the similarity between the area marked by Maria and the area marked by Gary (including the cross-hatched area) is so striking that it is implausible that the two areas were drawn without some consultation between them.

1061    I consider that the evidence given by Gary Cooper concerning the maps containing hand drawn markings reflected adversely on his credit. My impression was that Gary Cooper believed (erroneously) that the claims being made by the Cooper respondents would be harmed if he were to admit that he consulted with his siblings with respect to the boundaries of the area they claimed to be Nada’s country, and therefore he was evasive in his answers concerning the creation of his own map and was not being truthful when he said that he did not consult with his siblings about the boundaries.

Biographical information

1062    Gary Cooper was born in Kalgoorlie on 17 January 1967. His parents were Norman Cooper Snr (born 1931 and died 1992) and Laurel Cooper (née Johnston). His Aboriginal name, given to him by his mother’s mother, is Dhoonbun.

1063    Gary Cooper has one sister, Maria Bandry (née Cooper), who is also the daughter of Norman Cooper Snr and Laurel Cooper. Gary has other siblings who are the children of Norman Snr and his first wife, Betty Lowah (née Robertson): Susan Cooper Wyatt, Milton Cooper (deceased), Norman Cooper Jnr, Alan Cooper (deceased), Victor Cooper and Thomas (Tommy) Cooper. Gary also has siblings who are the children of his mother and her first husband, Mervyn Stubbs: Peter Stubbs (deceased), Greg Stubbs, Mervyn Stubbs Jnr (deceased), Trevor Stubbs (deceased) and Murray Stubbs.

1064    Gary Cooper gave evidence that he is descended from Nada Bilbear, through his father Norman Cooper Snr who was the son of Thomas Cooper. Thomas Cooper died in 1951, before Gary Cooper was born. Norman Cooper Snr was the only son of Thomas Cooper who survived childhood, with all of Thomas Cooper’s other children being daughters. All of Thomas Cooper’s children are now deceased. Gary Cooper’s father, Norman, died when Gary was 25 years old (in 1992).

1065    In relation to his father’s father, Gary Cooper stated that:

I am Bilberri on my dad’s side, through Tom Cooper and Nada Bilbear. I heard of Bilberri a long time ago.

1066    He also stated that:

Our main country on my dad’s father's side is the Kalgoorlie, Boulder, Coolgardie, Gindalbi, Kurnalpi and Kanowna areas. This is through dad’s father Tom Cooper, and his grandmother Nada Bilbear.

1067    Gary Cooper gave evidence that he also belongs to the Pirni / Darlot group from the Wiluna area through his father’s mother, Trilby Ashwin (who married Thomas Cooper), and Trilby’s mother (Gary Cooper’s great grandmother), Telpha Ashwin. Gary Cooper said that his great grandmother Telpha was from “Wiluna way”. Wiluna is to the north of the trial area. Gary Cooper said that it was 400 or 500 kilometres from Kalgoorlie.

1068    Gary Cooper also gave evidence that his mother is a Ngaanyatjarra woman and he therefore has links to his mother’s country, including Lake Yeo and Ngaanyatjarra country. Lake Yeo is between Laverton and Warburton (to the north and east of the trial area). Gary Cooper said that it was some 500 or 600 kilometres from Kalgoorlie. Gary Cooper’s mother’s mother was a Ngaanyatjarra woman named Adelaide Johnston who was born in Yowalga (which is near Warburton) and his mother’s traditional father was a Tjalkadjara wati (initiated man) named Davey Johnston (and whose Aboriginal name was Ngayjuju). His mother’s grandmother (Gary Cooper’s great grandmother) was also a Ngaanyatjarra woman named Anabra (whom he also referred to as Darga). Gary Cooper said that she was also from Lake Yeo.