CG (Deceased) on behalf of the Badimia People v State of Western Australia
[2015] FCA 204
•12 March 2015
FEDERAL COURT OF AUSTRALIA
CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204
Citation: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 Parties: CG (DECEASED), JOHN ASHWIN, GLORIA FOGARTY, PG (DECEASED), OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), AL (DECEASED), HL (DECEASED), RL (DECEASED), WL (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR) and FRANK WALSH (SNR) v STATE OF WESTERN AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, SHIRE OF CUE, SHIRE OF MENZIES, SHIRE OF MOUNT MAGNET, ACVE HOLDINGS PTY LTD, BAGIRA PTY LTD (WYDGEE STATION), BERKSHIRE VALLEY NOMINEES PTY LTD, TANIA ROSLYN CHITTARA (BIMBIJY STATION), GREGORY JOHN COWLEY (OUDABUNNA), ROSLYN DOREEN COWLEY (OUDABUNNA), WILLIAM TERRENCE COWLEY (OUDABUNNA), CROWBAR CONTRACTORS PTY LTD, REBECCA MARY DAVIES (MARANALGO STATION), ROGER PAUL DAVIES (MARANALGO STATION), EDAH PASTORAL COMPANY PTY LTD (EDAH STATION), GREGORY SHAYNE FRENCH (BIMBIJY STATION), GUYMON PTY LTD, LAURENCE FREDERICK AND CATHERINE MARY JENSEN, ADRIAN JAMES MORRISSEY, PETER JOHN MORRISSEY, ANDREW JOHN AND JAQUELINE ANDREA MOSES, HE AND RG MOSES (HY BRAZIL STATION), MURRUM PASTORAL CO PTY LTD, GRAEME LAWRENCE NEWTON (PULLAGAROO STATION), PASTORAL EXPORTS PTY LTD (MOUROUBRA STATION), ELIZABETH ANN PILKINGTON (KIRKALOCKA STATION), GEOFFREY BRIAN PILKINGTON (KIRKALOCKA STATION), RANGELAND RED PTY LTD, CM AND GJ SCOTT (BOODANOO STATION), CM, GJ, LV, RW AND WJ SCOTT (WYNYANGOO STATION), E, W, C AND I SCOTT (NARNDEE STATION), GREGORY AND ROBERT SCOTT (WONDINONG STATION), LESLEY VALMA SCOTT, PAUL ALEXANDER AND KELLIE ANNE STARICK, WAGGA WAGGA STATION PTY LTD, JOHN THOMAS WAINWRIGHT (NALBARRA STATION), KAREN JOY WAINWRIGHT (NALBARRA STATION), WESTAG HOLDINGS PTY LTD (WINDIMURRA STATION), JANET GAYNOR WINTER (PULLAGAROO STATION), AUSTRALIAN WILDLIFE CONSERVANCY, YAMATJI MARLPA ABORIGINAL CORPORATION and TELSTRA CORPORATION LTD
JOHN ASHWIN, GLORIA FOGARTY, OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), LH (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR), FRANK WALSH (SNR) v STATE OF WESTERN AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, SHIRE OF MOUNT MARSHALL, THE SOUTH WEST ABORIGINAL LAND AND SEA COUNCIL ABORIGINAL CORPORATION, ASHLEY WILLIAM DOWDEN, AUSTRALIAN WILDLIFE CONSERVANCY, BERKSHIRE VALLEY NOMINEES PTY LTD, GREGORY JOHN COWLEY, ROSLYN DOREEN COWLEY, WILLIAM TERRENCE COWLEY, CROWBAR CONTRACTORS PTY LTD, JOHN FORREST DUNNE, MARILYN DALE DUNNE, EDAH PASTORAL COMPANY PTY LTD, GUYMON PTY LTD, CATHERINE MARY JENSEN, LAURENCE FREDERICK JENSEN, ADRIAN JAMES MORRISSEY, KAREN DIANE MORRISSEY, PETER JOHN MORRISSEY, HEATHER ELIZABETH MOSES, PASTORAL EXPORTS PTY LTD, ELIZABETH ANN PILKINGTON, GEOFFREY BRIAN PILKINGTON, RANGELAND RED PTY LTD, GREGORY ROBERT SCOTT, LESLEY VALMA SCOTT, TANIA ROSLYN FRENCH AND GREGORY SHAYNE FRENCH, WAGGA WAGGA STATION PTY LTD, ABALONE (WA) PTY LTD, COVENTRY ENTERPRISES PTY LTD, JOHN CALEGARI, SILVER LAKE RESOURCES LIMITED
File numbers: WAD 6123 of 1998
WAD 100 of 2012Judge: BARKER J Date of judgment: 12 March 2015 Catchwords: NATIVE TITLE – application for determination of native title – whether native title rights exist – whether claim area part of traditional country of claimants – whether claimants descendants of ancestors who had rights and interests in claim area – whether claimed rights and interests traditional – whether claimants have maintained connection with claim area by traditional laws and customs – if native title rights did exist whether various acts extinguished native title rights and interests – extent of any extinguishment of native title rights and interests Legislation: Aborigines Act 1905 (WA)
Cemeteries Act 1897 (WA) s 10, s 14
Forests Act 1918 (WA) s 26, s 29, s 40
Goldfields Act 1886 (WA) s 10(1)
Goldfields Act 1895 (WA) s 32
Land Act 1898 (WA) s 39, s 39(8), s 39(10), s 39(15), s 41A, s 152, s 153, s 153A
Land Act 1933 (WA) s 29, s 32, s 33, s 33(3), s 116, s 117
Land Act Amendment Act 1904 (WA) s 8
Land Act Amendment Act 1905 (WA) s 10
Land Act Amendment Act 1960 (WA) s 2
Land Administration Act 1997 (WA) s 3(1), s 9, s 41, s 46, s 177, s 278
Local Government Act 1960 (WA) s 294A
Local Government Act Amendment Act (No 2) 1975 (WA)
Main Roads Act 1930 (WA)
Mineral Lands Act 1892 (WA) s 12
Mining Act 1904 (WA) s 42, s 48, s 115, s 117, s 276
Mining Act 1978 (WA) s 27, s 29(1), s 29(2), s 29(7)(b), s 71, s 80, s 80(1), s 83, s 105B, s 116(1), s 123, s 125A, Sch 2 cl 2
Native Administration Act 1905 (WA)
Native Title Act 1993 (Cth) s 13, s 15, s 19, s 22F, s 22H, s 22H(1)(d), s 22H(1)(e), s 22H(2), s 22H(2)(c), s 23B, s 23B(7), s 23C(2), s 23E, s 24IC, s 24ID(1), s 24KA, s 24KA(2), s 24LA(1)(b)(vii), s 24MA, s 24MB, s 24MB(1), s 24MD, s 24MD(2), s 24MD(2)(b), s 24MD(2A), s 24MD(3), s 24MD(6A), s 24MD(6B), s 24OA, s 26(1), s 26(1)(c)(iii), s 26(1)(c)(iii)(A), s 26(1)(c)(iii)(B), s 26D, s 29, s 29(3), s 47, s 47(1)(b)(i), s 47(1)(b)(ii), 47(1)(b)(iii), s 47A, s 47A(1), s 47A(1)(b)(ii), s 47A(1)(c), s 47A(2), s 47B, s 47B(1)(b), s 47B(1)(b)(i), s 47B(1)(b)(ii), s 47B(1)(c), s 47B(3), s 61A, s 61A(2), s 61A(3), s 82(1), s 190C, s 223, s 223(1), s 223(1)(b), s 223(1)(c), s 225, s 225(c), s 225(d), s 228(4), s 232A, s 232A(2)(e), s 233, s 251D, s 253, s 253(e), Pt 2 Div 3 Subdiv I, Subdiv M, Subdiv P
Native Title Amendment Act 1998 (Cth)
Petroleum Act 1936 (WA) s 9
Petroleum and Geothermal Energy Resources Act 1967 (WA) s 9
Racial Discrimination Act 1975 (Cth)
Road Districts Act 1919 (WA)
Titles (Validation) and the Native Title (Effect of Past Acts) Act 1995 (WA) s 5, s 9, s 12A, s 12J, s 12M
Transfer of Land Act 1893 (WA) s 145, s 145(1)(a), s 145(2), s 145(3)
Wildlife Conservation Act 1950 (WA) s 22, s 23Land Regulations 1863 (WA)
Land Regulations 1882 (WA) reg 29
Land Regulations 1887 (WA) reg 32, reg 32(j), reg 32(n)
Land Regulations 1905 (WA) reg 2, reg 5
Mining Regulations 1925 (WA)Western Australia Constitution Act 1890 (UK) s 3
Cases cited: AB (deceased) (on behalf of the Ngarla people) v State of Western Australia (No 4) [2012] FCA 1268; (2012) 300 ALR 193
Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1
Anaconda Nickel Ltd v Western Australia [2000] NNTTA 366; (2000) 165 FLR 116
Banjima People v State of Western Australia (No 2) [2013] FCA 868; (2013) 305 ALR 1
Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84
Bolton v Clutterbuck [1955] SASR 253
Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154; (2012) 208 FCR 505
Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2013] FCAFC 18
Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506
Commonwealth of Australia v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171
Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9
Daniel v State of Western Australia [2003] FCA 666
Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254
De Rose v State of South Australia [2002] FCA 1342
De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290
Eric Preston Pty Ltd v Euroz Securities Ltd [2011] FCAFC 11; (2011) 274 ALR 705
Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96
Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32
Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516
Griffiths v Northern Territory of Australia [2006] FCA 903; (2006) 165 FCR 300
Griffiths v Northern Territory of Australia [2007] FCAFC 178; (2007) 165 FCR 391
Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457
Gumana v Northern Territory of Australia [2007] FCAFC 23; (2007) 158 FCR 349
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1
Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150
Kingham v Sutton [2002] FCA 506; (2002) 114 IR 137
Kogolo v State of Western Australia [2011] FCA 1481
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Mason v Tritton (1994) 34 NSWLR 572
Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422
Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148
Neowarra v State of Western Australia [2003] FCA 1402
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442
NorthSydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd [1971] 2 NSWLR 150
Pawson v Director General, Department of Mines and Petroleum [2012] WAMW 13
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Risk v Northern Territory of Australia [2006] FCA 404
Rubibi Community v State of Western Australia (No 4) [2004] FCA 1019; (2004) 138 FCR 536
Rubibi Community v State of Western Australia (No 7) [2006] FCA 459
Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; (2010) 266 ALR 537
Sampi v State of Western Australia [2005] FCA 777
State of Western Australia v Gordon [2010] NNTTA 152; (2010) 258 FLR 168
State of Western Australia v Graham on behalf of the Ngadju people [2013] FCAFC 143; (2013) 305 ALR 452
State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; (2004) 207 ALR 539
The Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland [2001] FCA 414; (2001) 108 FCR 453
The State of Western Australia v Sebastian [2008] FCAFC 65; (2008) 173 FCR 1
Ward v State of Western Australia (1998) 159 ALR 483
Western Australia v Brown [2014] HCA 8; (2014) 306 ALR 168
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Yarmirr v Northern Territory [2001] HCA 56; (2001) 208 CLR 1Date of hearing: 1-4 November 2010, 23-27 July 2012, 10-14 September 2012, 3 April 2013 Date of last extinguishment submissions: 27 March 2013 Date of last further submissions requested by the Court: 28 March 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 1163 Counsel for the Claimants: Mr VB Hughston SC, Ms T Jowett Solicitor for the Claimants: Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Mr GJ Ranson, Ms AC Warren Solicitor for the State of Western Australia: State Solicitor’s Office Counsel for the Pastoral Respondents: Mr J Graham Solicitor for the Pastoral Respondents: Cornerstone Legal (until 20 June 2013)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6123 of 1998
BETWEEN: CG (DECEASED), JOHN ASHWIN, GLORIA FOGARTY, PG (DECEASED), OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), AL (DECEASED), HL (DECEASED), RL (DECEASED), WL (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR) and FRANK WALSH (SNR)
ClaimantsAND: STATE OF WESTERN AUSTRALIA
First RespondentTHE COMMONWEALTH OF AUSTRALIA
Second RespondentSHIRE OF CUE, SHIRE OF MENZIES, SHIRE OF MOUNT MAGNET
Third RespondentsACVE HOLDINGS PTY LTD, BAGIRA PTY LTD (WYDGEE STATION), BERKSHIRE VALLEY NOMINEES PTY LTD, TANIA ROSLYN CHITTARA (BIMBIJY STATION), GREGORY JOHN COWLEY (OUDABUNNA), ROSLYN DOREEN COWLEY (OUDABUNNA), WILLIAM TERRENCE COWLEY (OUDABUNNA), CROWBAR CONTRACTORS PTY LTD, REBECCA MARY DAVIES (MARANALGO STATION), ROGER PAUL DAVIES (MARANALGO STATION), EDAH PASTORAL COMPANY PTY LTD (EDAH STATION), GREGORY SHAYNE FRENCH (BIMBIJY STATION), GUYMON PTY LTD, LAURENCE FREDERICK AND CATHERINE MARY JENSEN, ADRIAN JAMES MORRISSEY, PETER JOHN MORRISSEY, ANDREW JOHN AND JAQUELINE ANDREA MOSES, HE AND RG MOSES (HY BRAZIL STATION), MURRUM PASTORAL CO PTY LTD, GRAEME LAWRENCE NEWTON (PULLAGAROO STATION), PASTORAL EXPORTS PTY LTD (MOUROUBRA STATION), ELIZABETH ANN PILKINGTON (KIRKALOCKA STATION), GEOFFREY BRIAN PILKINGTON (KIRKALOCKA STATION), RANGELAND RED PTY LTD, CM AND GJ SCOTT (BOODANOO STATION), CM, GJ, LV, RW AND WJ SCOTT (WYNYANGOO STATION), E, W, C AND I SCOTT (NARNDEE STATION), GREGORY AND ROBERT SCOTT (WONDINONG STATION), LESLEY VALMA SCOTT, PAUL ALEXANDER AND KELLIE ANNE STARICK, WAGGA WAGGA STATION PTY LTD, JOHN THOMAS WAINWRIGHT (NALBARRA STATION), KAREN JOY WAINWRIGHT (NALBARRA STATION), WESTAG HOLDINGS PTY LTD (WINDIMURRA STATION), JANET GAYNOR WINTER (PULLAGAROO STATION)
Fourth RespondentsAUSTRALIAN WILDLIFE CONSERVANCY
Fifth RespondentYAMATJI MARLPA ABORIGINAL CORPORATION
Sixth RespondentTELSTRA CORPORATION LTD
Seventh Respondent
JUDGE:
BARKER J
DATE OF ORDER:
12 MARCH 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The Court will hear from the parties as to the terms of the final orders to be made.
2.If the State wishes to submit that any order other than an order dismissing the proceeding should be made, it shall file and serve a draft order and submissions in support on or before 26 March 2015.
3.If any such submission is made by the State, the applicants have leave to file and serve responding submissions on or before 9 April 2015.
4.In that event, the matter be listed for final hearing on 10 April 2015 at 9:15am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 100 of 2012
BETWEEN: JOHN ASHWIN, GLORIA FOGARTY, OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), LH (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR), FRANK WALSH (SNR)
ClaimantsAND: STATE OF WESTERN AUSTRALIA
First RespondentTHE COMMONWEALTH OF AUSTRALIA
Second RespondentSHIRE OF MOUNT MARSHALL
Third RespondentSOUTH WEST ABORIGINAL LAND AND SEA COUNCIL ABORIGINAL CORPORATION
Fourth RespondentASHLEY WILLIAM DOWDEN, AUSTRALIAN WILDLIFE CONSERVANCY, BERKSHIRE VALLEY NOMINEES PTY LTD, GREGORY JOHN COWLEY OUDABUNNA(, ROSLYN DOREEN COWLEY )OUDABUNNA(, WILLIAM TERRENCE COWLEY )OUDABUNNA(, CROWBAR CONTRACTORS PTY LTD, JOHN FORREST DUNNE, MARILYN DALE DUNNE, EDAH PASTORAL COMPANY PTY LTD, GUYMON PTY LTD, CATHERINE MARY JENSEN, LAURENCE FREDERICK JENSEN, ADRIAN JAMES MORRISSEY, KAREN DIANE MORRISSEY, PETER JOHN MORRISSEY, HEATHER ELIZABETH MOSES, PASTORAL EXPORTS PTY LTD, ELIZABETH ANN PILKINGTON (KIRKALOCKA STATION), GEOFFREY BRIAN PILKINGTON (KIRKALOCKA STATION), RANGELAND RED PTY LTD, GREGORY ROBERT SCOTT, LESLEY VALMA SCOTT, TANIA ROSLYN FRENCH AND GREGORY SHAYNE FRENCH, WAGGA WAGGA STATION PTY LTD)
Fifth RespondentsABALONE (WA) PTY LTD, COVENTRY ENTERPRISES PTY LTD, JOHN CALEGARI, SILVER LAKE RESOURCES LIMITED
Sixth Respondents
JUDGE:
BARKER J
DATE OF ORDER:
12 MARCH 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The Court will hear from the parties as to the terms of the final orders to be made.
2.If the State wishes to submit that any order other than an order dismissing the proceeding should be made, it shall file and serve a draft order and submissions in support on or before 26 March 2015.
3.If any such submission is made by the State, the applicants have leave to file and serve responding submissions on or before 9 April 2015.
4.In that event, the matter be listed for final hearing on 10 April 2015 at 9:15am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6123 of 1998
BETWEEN: CG (DECEASED), JOHN ASHWIN, GLORIA FOGARTY, PG (DECEASED), OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), AL (DECEASED), HL (DECEASED), RL (DECEASED), WL (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR) and FRANK WALSH (SNR)
ClaimantsAND: STATE OF WESTERN AUSTRALIA
First RespondentTHE COMMONWEALTH OF AUSTRALIA
Second RespondentSHIRE OF CUE, SHIRE OF MENZIES, SHIRE OF MOUNT MAGNET
Third RespondentsACVE HOLDINGS PTY LTD, BAGIRA PTY LTD (WYDGEE STATION), BERKSHIRE VALLEY NOMINEES PTY LTD, TANIA ROSLYN CHITTARA (BIMBIJY STATION), GREGORY JOHN COWLEY, ROSLYN DOREEN COWLEY, WILLIAM TERRENCE COWLEY, CROWBAR CONTRACTORS PTY LTD, REBECCA MARY DAVIES (MARANALGO STATION), ROGER PAUL DAVIES (MARANALGO STATION), EDAH PASTORAL COMPANY PTY LTD (EDAH STATION), GREGORY SHAYNE FRENCH (BIMBIJY STATION), GUYMON PTY LTD, LAURENCE FREDERICK AND CATHERINE MARY JENSEN, ADRIAN JAMES MORRISSEY, PETER JOHN MORRISSEY, ANDREW JOHN AND JAQUELINE ANDREA MOSES, HE AND RG MOSES (HY BRAZIL STATION), MURRUM PASTORAL CO PTY LTD, GRAEME LAWRENCE NEWTON (PULLAGAROO STATION), PASTORAL EXPORTS PTY LTD (MOUROUBRA STATION), ELIZABETH ANN PILKINGTON, GEOFFREY BRIAN PILKINGTON, RANGELAND RED PTY LTD, CM AND GJ SCOTT (BOODANOO STATION), CM, GJ, LV, RW AND WJ SCOTT (WYNYANGOO STATION), E, W, C AND I SCOTT (NARNDEE STATION), GREGORY AND ROBERT SCOTT (WONDINONG STATION), LESLEY VALMA SCOTT, PAUL ALEXANDER AND KELLIE ANNE STARICK, WAGGA WAGGA STATION PTY LTD, JOHN THOMAS WAINWRIGHT (NALBARRA STATION), KAREN JOY WAINWRIGHT (NALBARRA STATION), WESTAG HOLDINGS PTY LTD (WINDIMURRA STATION), JANET GAYNOR WINTER (PULLAGAROO STATION)
Fourth RespondentsAUSTRALIAN WILDLIFE CONSERVANCY
Fifth RespondentYAMATJI MARLPA ABORIGINAL CORPORATION
Sixth RespondentTELSTRA CORPORATION LTD
Seventh Respondent
JUDGE:
BARKER J
DATE:
12 MARCH 2015
PLACE:
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 100 of 2012
BETWEEN: JOHN ASHWIN, GLORIA FOGARTY, OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), LH (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR), FRANK WALSH (SNR)
ClaimantsAND: STATE OF WESTERN AUSTRALIA
First RespondentTHE COMMONWEALTH OF AUSTRALIA
Second RespondentSHIRE OF MOUNT MARSHALL
Third RespondentSOUTH WEST ABORIGINAL LAND AND SEA COUNCIL ABORIGINAL CORPORATION
Fourth RespondentASHLEY WILLIAM DOWDEN, AUSTRALIAN WILDLIFE CONSERVANCY, BERKSHIRE VALLEY NOMINEES PTY LTD, GREGORY JOHN COWLEY, ROSLYN DOREEN COWLEY, WILLIAM TERRENCE COWLEY, CROWBAR CONTRACTORS PTY LTD, JOHN FORREST DUNNE, MARILYN DALE DUNNE, EDAH PASTORAL COMPANY PTY LTD, GUYMON PTY LTD, CATHERINE MARY JENSEN, LAURENCE FREDERICK JENSEN, ADRIAN JAMES MORRISSEY, KAREN DIANE MORRISSEY, PETER JOHN MORRISSEY, HEATHER ELIZABETH MOSES, PASTORAL EXPORTS PTY LTD, ELIZABETH ANN PILKINGTON, GEOFFREY BRIAN PILKINGTON, RANGELAND RED PTY LTD, GREGORY ROBERT SCOTT, LESLEY VALMA SCOTT, TANIA ROSLYN FRENCH AND GREGORY SHAYNE FRENCH, WAGGA WAGGA STATION PTY LTD
Fifth RespondentsABALONE (WA) PTY LTD, COVENTRY ENTERPRISES PTY LTD, JOHN CALEGARI, SILVER LAKE RESOURCES LIMITED
Sixth Respondents
JUDGE:
BARKER J
DATE:
12 MARCH 2015
PLACE:
PERTH
TABLE OF CONTENTS
NATURE OF PROCEEDING AND ISSUES
[1]
CONNECTION ISSUES – INTRODUCTION
[17]
Inferences
[17]
First contact
[18]
Ethnographic material
[19]
Introduction to claimants’ evidence
[21]
Outline of Dr Choo’s evidence
[42]
Outline of Mr Robinson’s evidence
[75]
Outline of Dr Brunton’s evidence
[84]
Expert anthropologists’ conference
[90]
WAS THE CLAIM AREA BADIMIA COUNTRY AT SOVEREIGNTY?
[107]
Claimants’ primary submissions
[111]
State’s submissions
[112]
Claimants’ reply submissions
[113]
Consideration
[114]
Summary of sovereignty country finding
[208]
WERE THE APICAL ANCESTORS BADIMIA PEOPLE?
[210]
Mary Assil and Timothy Benjamin
[215]
Frances (Mary) and John Bynder
[237]
Albert Neebrong and Dinah, and Uanda and Galena (Lena)
[244]
Bilygwi and Yilayajambin
[260]
Ninghan Billy and Ninghan Freddie
[280]
Polly Little
[283]
Lisa Martin
[290]
Topsy
[297]
Eva Renie
[305]
Old Julia
[315]
Lizzie aka Juumbi
[321]
Other apical ancestors
[332]
Summary of apical ancestor findings
[336]
ARE THE CLAIMED RIGHTS AND INTERESTS POSSESSED UNDER TRADITIONAL BADIMIA LAWS AND CUSTOMS?
[340]
What are the s 223(1) requirements for proving native title?
[342]
What rights and interests do the claimants claim to possess under their laws and customs?
[363]
Do those claimed rights and interests arise under “traditional” laws and customs?
[368]
Claimants’ primary submissions
[368]
State’s submissions
[382]
Claimants’ reply submissions
[395]
The “pleading” point
[399]
Consideration of substantive question
[410]
Summary of finding whether “traditional” laws and customs
[434]
HAVE THE CLAIMANTS MAINTAINED A CONNECTION WITH THE CLAIM AREA BY TRADITIONAL LAW AND CUSTOM?
[436]
State’s submissions
[439]
Claimants’ submissions
[451]
Consideration
[458]
Summary of finding as to continuity
[493]
CONCLUSION ON CONNECTION ISSUES
[495]
EXTINGUISHMENT ISSUES - INTRODUCTION
[497]
General principles
[500]
Relevance of evidence of usage of land
[502]
Relevance of evidence of pastoral improvements
[506]
Onus of proof for extinguishment
[518]
The evidence
[532]
Areas excluded from any native title determination
[537]
WHETHER CERTAIN ACTS HAVE WHOLLY EXTINGUISHED NATIVE TITLE
[546]
Freehold
[546]
Freehold titles granted 1 January 1994 – 23 December 1996
[546]
Freehold titles granted after 23 December 1996
[557]
Special leases
[564]
Special lease 0957/152
[572]
Special leases 4371/153, 4372/153
[576]
Special leases 3116/00976, 3116/05615
[582]
Special lease 3116/05266
[588]
Special lease 3116/01287
[591]
Special lease 3116/01666
[595]
Special lease 3116/02816
[599]
Residential leases
[602]
Reserve leases
[608]
Reserve leases without lease instruments
[608]
Reserve lease granted pursuant to s 33(3) Land Act 1933
[617]
Reserve leases granted over State forest
[621]
Reserve leases granted over reserves not immediately required for their reserved purpose
[630]
Restrictions on reserve lease to the natural surface of the land
[637]
General leases
[641]
Vested reserves
[650]
Reserves 02742, 02751
[650]
Reserve 24634
[656]
Reserve 29839
[661]
Reserve 41109
[666]
Reserves where additional rights are asserted
[673]
Reserves the subject of public works
[682]
Reserve 46783 (Bore 4/75)
[682]
Reserve 47060 (Kantie Murdana Trigonometrical station)
[693]
Roads and other public works
[705]
Roads created pursuant to the Road Districts Act 1919 (WA)
[705]
Roads created pursuant to the Local Government Act 1960 (WA)
[713]
Current road 169
[716]
Features associated with roads
[721]
Other public works
[731]
Pastoral improvements
[737]
Mining tenements
[739]
Mineral leases
[739]
Gold mining leases
[751]
Residential areas and market gardens
[757]
Miners’ homestead leases
[764]
Rights in minerals and petroleum
[774]
WHETHER CERTAIN ACTS PARTIALLY EXTINGUISHED NATIVE TITLE
[779]
Pastoral leases
[779]
Unvested reserves
[790]
Reserves created for the purpose of “townsite”
[791]
Reserves created for the purpose of “exempted from sale”
[800]
Reserves created for the purpose of “public utility”
[807]
Reserves with insufficient evidence of creation
[810]
Unvested reserves with additional extinguishment
[814]
Reserve 02944
[814]
Reserves 06270, 11342, 12876
[825]
Nature reserves
[831]
State forests
[838]
Mining and petroleum tenements
[841]
Mineral claims
[841]
Dredging claims
[848]
Prospecting areas
[856]
Rights to water
[860]
Temporary reserves
[861]
Oil prospecting areas
[871]
Machinery area lease
[874]
WHETHER CERTAIN ACTS DONE PRIOR TO 23 DECEMBER 1996 ARE VALID
[881]
Reserves
[881]
Mining tenements
[884]
Unsurveyed mining tenements
[884]
Compliance with s 22H NTA
[900]
WHETHER CERTAIN ACTS DONE AFTER 23 DECEMBER 1996 ARE VALID FUTURE ACTS
[915]
Land tenures
[915]
CT0222000802
[915]
Taking order I402911 (CT0222300652)
[919]
Reserve 44366
[931]
Water tenures
[943]
Mining and petroleum tenements
[944]
Mining tenements said to be invalid for NTA non-compliance
[944]
“Ward policy” tenements
[959]
Tenements subject to indemnity
[966]
Tenements said to have been granted with insufficient time for NTA compliance
[974]
Tenements which have not been surveyed
[976]
Tenements which fail the freehold test
[978]
WHETHER CERTAIN INTERESTS SHOULD BE RECORDED AS “OTHER INTERESTS” IN ANY NATIVE TITLE DETERMINATION
[985]
Rights of access to mining tenements
[985]
State’s ownership of geothermal energy and geothermal energy resources
[991]
WHETHER THE BADIMIA # 2 APPLICATION SHOULD BE DISMISSED
[1001]
WHETHER EXTINGUISHMENT IS TO BE DISREGARDED
[1021]
Section 47
[1021]
Ninghan Station
[1022]
Section 47A – Reserves covered by claimants’ application
[1034]
Paynes Find Aboriginal Reserve
[1037]
Mount Magnet Aboriginal Reserves
[1067]
Section 47B – Vacant Crown land covered by claimant application
[1078]
Thundelarra, Warriedar, Burnabinmah, Lakeside and Lake Austin Stations
[1083]
UCL East of Kirkalocka Station
[1086]
Lake Moore
[1089]
Wondinong Station
[1120]
UCL near Whitewells Station
[1126]
Paynesville townsite
[1135]
Boogardie townsite
[1141]
Lennonville townsite
[1153]
CONCLUSION AND ORDERS
[1162]
REASONS FOR JUDGMENT
NATURE OF PROCEEDING AND ISSUES
In these related proceedings, claimants, on behalf of a claim group comprising descendants of named ancestors and who identify themselves as Badimia people, apply, under the Native Title Act 1993 (Cth) (NTA), for a determination that they hold native title in relation to land and waters in the vicinity of Mount Magnet in the Murchison region of Western Australia (claim area).
Proceeding WAD 6123 of 1998 was the initial proceeding by which the claimants made their claim. Proceeding WAD 100 of 2012 (Badimia # 2 application) was the proceeding subsequently filed with a view to attracting the beneficial operation of s 47B NTA in respect of areas of unallocated Crown Land (UCL) within the claim area. The parties and the Court have treated the two proceedings as one and in these reasons for decision they are simply referred to as the proceeding.
Under s 225 NTA, in such a proceeding the Court is required to make a determination, “whether or not native title exists” in relation to the claim area and, if it does, to make a determination of:
(1)who the persons, or each group of persons, holding the common or group rights comprising the native title are;
(2)the nature and extent of the native title rights and interests in relation to the claim area;
(3)the nature and extent of any other interests in relation to the claim area;
(4)the relationship between the rights and interests in paras (b) and (c) (taking into account the effect of the NTA); and
(5)to the extent that the land or waters in the claim 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.
Thus, before a determination can be made, the Court must determine whether native title exists and then, if it does, the extent to which it has been extinguished.
In relation to the question whether native title exists and, if so, who the persons or group of persons holding the native title are, and the nature and extent of the native title rights and interests concerned, s 223(1) NTA defines the expressions “native title” and “native title rights and interests” as being:
the communal, group or individual rights and interests of Aboriginal peoples … 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 …; and
(b)the Aboriginal peoples …, 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.
Because of s 223(1)(b), issues going to the existence of native title are often referred to by the shorthand expression, connection issues.
Other issues, particularly those going to the nature and extent of native title rights and interests in light of executive and legislative acts that have occurred since sovereignty, are often referred to by the shorthand expression, extinguishment issues.
In this proceeding the claimants contend that they hold communal or group native title and, by the evidence they have led, have satisfied the s 223 requirements for proving that native title as defined exists.
The s 223 requirements for proving the existence of native title, and the reasons for them, have been explained by the High Court of Australia in Members of the Yorta YortaAboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422, where the Court emphasised that, for native title to subsist today, claimants must, in effect, be able to demonstrate that they are the successor “society” to that which held native title at sovereignty and in each generation since then without “substantial interruption”.
Having regard to these requirements, the State, while accepting there was a group of Aboriginal people known as Badimia at the time of British sovereignty in Western Australia, expressly submits the claimants have failed to establish:
(1)that the “society” of people in occupation of the claim area at sovereignty was Badimia; or
(2)what the traditional laws and customs of that sovereignty society were for allocating rights in relation to the claim area; or
(3)that traditional laws and customs have been continuously acknowledged and observed from sovereignty to the present day in the claim area; or
(4)that, by or under traditional laws and customs which have continued to be acknowledged and observed in the claim area, the claimants have throughout the period maintained a connection to the claim area; or
(5)that the particular rights and interests now claimed are possessed under traditional laws and customs presently acknowledged and observed in the claim area.
The other respondents (apart from Telstra Corporation Ltd) adopt the State’s position on these connections issues.
There may be a distinct question in some cases under the NTA as to whether the members of a claimant group are the “traditional owners”, to use a general expression, of the country they claim. In some circumstances, the group may be a recognised traditional group of Aboriginal people, but the question is whether, at sovereignty, their traditional country was the country they now claim, or lay elsewhere. For example, if a group migrated, subsequent to sovereignty, to the country they now claim, their claim will fail. See AB (deceased) (on behalf of the Ngarla people) v State of Western Australia (No 4) [2012] FCA 1268; (2012) 300 ALR 193.
In other circumstances, the migration question may arise in a different way. There may be no dispute that a particular group of Aboriginal people traditionally owned the claim area at sovereignty, but a question may arise as to whether all members of the claimant group can trace their ancestry to persons who were the traditional owners at sovereignty and so are able to be included as holders of native title in the determination that native title exists. In State of Western Australia v Graham on behalf of the Ngadju people [2013] FCAFC 143; (2013) 305 ALR 452 (Nadju FC), for example, it was held that persons descended from a particular claimed apical ancestor, who was found not to be one of the traditional owners at sovereignty, could not be determined to be part of the group which held native title.
In each example just given, it does not matter that the claimants and ancestors concerned may have or have had an historical connection with the claim area, that is to say, have lived in the claim area for a long time commencing at some point after sovereignty and be knowledgeable about the claim area from an indigenous perspective. Unless the Yorta Yorta requirements concerning society are satisfied, the Court is unable to determine that native title exists under the NTA.
In this proceeding, therefore, four key (although related and overlapping) connection issues arise, namely:
(1)whether the claim area was Badimia country at sovereignty;
(2)if so, whether the apical ancestors identified by the claimants were Badimia people;
(3)if so, whether the native title rights and interests now claimed by the claimants can be said to be possessed under traditional laws and customs; and
(4)if so, whether the claimants presently have a connection with the claim area by those traditional laws and customs.
If connection is made out by the claimants, extinguishment issues are raised by all respondents (including Telstra).
CONNECTION ISSUES – INTRODUCTION
Inferences
What is clear from all the connection evidence received at the hearing of the claim is that, unlike some other reported native title claims, the European record pertaining to Aboriginal connection with the claim area is particularly limited and often quite generalised. This has the result that, in this proceeding, there is a question about what reasonable inferences may be drawn by the Court in respect of key issues from the evidence led at trial.
First contact
It is not in contest that the period of first contact between Aboriginal people and the agents of the British Crown, following the assertion of British sovereignty in Western Australia in 1829, occurred in the claim area around the 1850s. After contact, the pastoral industry was the first major settler industry established in the claim area, principally from the 1870s, followed, in the 1890s, by mining. There is no doubt that each of these industries had a serious impact on Aboriginal peoples in the general vicinity of the claim area, including the claim area, and on their traditional way of life.
Ethnographic material
There are very few early contemporary records about the Aboriginal people who occupied the claim area in these earlier times. The Assistant Colonial Surveyor, Robert Austin, provided a report in the 1850s. Daisy Bates collected some ethnographic material pertinent to this proceeding in the early 20th century. Norman Tindale, the noted ethnographer, undertook some research in relation to the claim area in the late 1930s and also in the 1960s. In the early 1930s, and again in the late 1930s or early 1940s, DS Davidson, an American anthropologist, also conducted ethnographic research. As will be seen below some of this material would appear to refer to Badimia people, although none provides a precise account of their culture or the location of their traditional country.
In the post-Second World War era, Dr Ruth Fink obtained data in the vicinity of the claim area for her PhD dissertation about “tribal distribution” in the Murchison. Some years later, in the early 1980s, married couple Richard Kingsford and Leone Dunn, conducted research in the broader area: Kingsford for his masters thesis on “Yamadyi Law”, and Dunn for her masters thesis on the Badimia language. Linguistic research was also carried out in this later era by WJ Oates and LF Oates, WH Douglas and N Thieberger.
Introduction to claimants’ evidence
There was a considerable body of evidence led from the Aboriginal witnesses at the hearing, over two tranches of Aboriginal evidence taken on country (in 2010 and 2012) which attested to their, and to their families’, identity as Badimia people and their connection with the claim area. In that regard, the historical association of the claimants and their old people of whom they gave evidence at the hearing is not in doubt. What is in issue, as noted above, is the traditional association of the claimants and their ancestors with the claim area.
As to present connections a number of claimants gave evidence of their own association with the claim area, which may be generally mentioned at this point.
Darryl Fogarty said that when he was young he went mustering at Averest (in the south‑eastern part of the claim area) with his uncles Jim and Bill Clinch. Mr Fogarty said his uncles had always worked down around Mouroubra Station and Pindabunna Station because they always worked inside the Badimia boundary.
More recently, Mr Fogarty said he went to Thundelarra Station camping with his wife. He said when he is driving past he will usually pull into Salt Creek (west of Paynes Find) and check to make sure everything is alright and that the spring is still working and clean it out. Salt Creek is a permanent water source, where wildlife gather and the Bimara (a Dreaming being) resides. Mr Fogarty said “[w]e do quite a lot out that way and it’s our home. We get bush tucker if there’s coglas, bowgarda beans, biymba, candy candy which are flat beans from the mulga tree..”. He used to always go around Warriedar Station too and camp.
Coral Brockman stated that now that she lives away from the Badimia claim area she returns often and particularly each Easter with her family. Ms Brockman said that when she was younger her mum insisted that she and the other young people visit Badimia country. Ms Brockman said that her mother did not give them a choice because her mother knew they were too young and silly but she made them come out and she taught them about their culture and their history. She stated that “since 1969 I’ve been coming out to Paynes Find and Goodingnow Station and also to visit Warrdagga [Hill]” with her family. She said Warrdagga is a significant spiritual site to Badimia people.
Ms Brockman gave evidence that Badimia country is where she and her family feel safe and can connect with their ancestors. Ms Brockman said she feels comfortable in Badimia country and it is important in building up their spirit. The more she goes to Badimia country the more the spirits become familiar with her and the more comfortable she feels. She wants her children to have that connection too.
Ms Brockman said she gets her rights to speak for country from her ancestors being born on the land, from her blood links to Badimia land.
Another person who has lived outside of the claim area for periods of time is Beverly Slater who is a member of the Clinch family. Ms Slater, who says she is Badimia through her family, currently lives between Perth and Perenjori. Ms Slater maintains that although Perenjori is not in the Badimia claim area it is traditional Badimia country.
Desmond (Des) Thompson gave evidence that when he was young he would go out bush with his mother, Rita Green (Mrs Thompson) (now deceased) and she would tell him the stories about when she was a child and where she had been. She taught him and his siblings how to catch kangaroo, find emu eggs and where to look for bush foods. Mrs Thompson used to take him to Mount Magnet to visit family, like CG (the late Ms C George), and later lived there with his uncle, Jack Merrick. Mr Thompson is married to Phyllis Bandy and has lived and worked in Mount Magnet off and on since 1958. Mr Thompson has worked on various pastoral stations in the claim area. He considers he is Badimia and that the claim area is Badimia country.
(The Court here notes that, in the case of recently, or relatively recently, deceased members of the claimant group the Court has endeavoured, with the assistance of the claimants’ legal representatives and in accordance with the custom of the group, to ensure that the deceased persons are appropriately referred to in this judgment. For example, the full name of CG – the late Ms C George – has not been used. In the case of persons who have been deceased for many years, the Court understands it is appropriate for it to refer to the names by which those persons were known when they were alive. For example, Rita Green (Mrs Thompson) and Joe Benjamin are referred to by their names.)
Ronald (Ron) Bandy gave evidence that his mother was Dorothy Little, a Badimia woman born at Wydgee Station, just south of Mount Magnet. He said his mother’s father, Tommy Little was born in the Paynes Find area, in Badimia country. Mr Bandy was born in Mount Magnet and his granddaughter and grandson live there. Mr Bandy said he “takes the boys out on our country to do what we all do on our country; go bush, hunt, cook up a feed here and there. I think they’re getting the swing of it”. Mr Bandy’s grandfather, Tommy Little and grandmother, Cissy brought him up, mostly around Wydgee Station.
Mr Bandy said that he was taught the Badimia side and lived on Badimia country so he followed his mother’s Badimia ways, not his father’s side. He gave evidence that people obtain knowledge about being Badimia from their parents and other old people. He maintained that if “your parents are from Badimia country then you should learn about the country from them and the other old people in your family”.
Mr Bandy said that since he first left school he has worked extensively on pastoral stations on Badimia country such as Yoweragabbie, Austin Downs, Windimurra, Challa and Meeline Stations. Mr Bandy said he also worked out toward the Sandstone area, Lake Mason, Youanmi, Yuinmery and Lake Barlee (which although outside the claim area he considered to be traditional Badimia country). When asked in cross-examination if he has a strong connection to Meeline Station because he spent more time there, Mr Bandy agreed. Mr Bandy said that recently he had moved to Wiluna for work and spends about three months a year in Badimia country. He said he would stay longer or live in Mount Magnet if he could get work.
Mr Bandy gave evidence that he has spent a lot of time around Windimurra, back to Lake Karan, and in the area down near Narndee Station. He stated “[l]ast year my kids and I went through a lot of that area around Windimurra, Paynes Find and Mount Gibson. I have six kids and two grandkids and we all went together. We travelled through Burnabinmah, Warriedar, Thundelarra on the way, we went through and had a look, we usually bring some of the Badimia kids from Perenjori too. It is important to take those Badimia kids out on country as much as we can and teach them about the country and ways of hunting, camping and preparing food”.
Ashley Bell gave evidence that he has lived continuously at Ninghan Station for the last 27 years. He said he has a strong connection with the southern portion of the claim area. Mr Bell was brought up on Ninghan Station when his parents were hired to work there. He said the family had to move to Wubin so he and his siblings could go to school. Wubin is not within the claim area but Mr Bell considers Wubin is also traditional Badimia country. When Mr Bell and his family lived in Wubin they always came back to the claim area to visit uncles, from his mother’s family, the Clinch family.
Mr Bell’s mother, Leah Bell, was born under a tree at Paynes Find and is the daughter of Ruth Clinch. Ms Bell also lives at Ninghan Station. Ruth Clinch was the daughter of Uanda, one of the two Aboriginal wives of Thomas Augustus Clinch, generally known as Gus Clinch, a European man who was the pastoral lessee of Goodingnow Station. Goodingnow Station is the adjoining station to Ninghan Station and within the claim area.
Mr Bell’s son, Drew, his partner and their two children also live on Ninghan Station. Mr Bell gave evidence to the effect that six generations, descended from Uanda, have maintained a continuing connection to the southern portion of the claim area.
Mr Bell gave evidence that he learned stories and was told about sites by his uncles and grandfathers, who used to take him out into the bush. He said “if I get a week off I go bush by myself or with my family”. Mr Bell said he regularly goes to Warriedar and Thundelarra Stations and checks sites, caves and goes hunting. When he was cross‑examined, Mr Bell was asked what he does when he is at Mongers Lake in the south‑west of the claim area. Mr Bell said that as well as doing his everyday work, he also checks sites, cleans waterholes and checks on the country in general. He teaches his son to do this.
Ollie George was born on Pullagaroo Station, in the claim area, in 1934 and currently lives in Mount Magnet with his children and grandchildren. Mr George gave evidence that his mother (Ms C George) was Badimia and she was born “out in the bush” on the land that is now Wynyangoo Station. Mr George said in cross-examination that he considered his mother’s mother, Rosie, was a Badimia person, because she was “living in this land”. Mr George said he was raised by Nugget Sport, and his wife Dinah, on Kirkalocka Station. When being cross‑examined at Chewar Rockhole on Kirkalocka Station, Mr George said Nugget Sport was the “king for this area” and he and Dinah “spoke Badimia language”, as he, Mr George, still does.
Mr George also gave evidence that “I have lived on stations all over my Badimia country. When I was growing up I moved between Paynes Find and Yalgoo, living on stations south of Mount Magnet and on Narndee Station which is about seventy kilometres north‑east of Paynes Find. We lived on Kirkalocka, Wydgee, Yoweragabbie, Thundelarra, Pindabunna and Wogarno Stations”. Mr George gave detailed evidence about the places he has camped at and worked on in the claim area.
Mr George stated that it is important to make sure the young ones go out with him so they get his knowledge before he passes away. He said he has taken his sons out to Bulgardoo, Goloway, Thugaru and the bardi site at Kirkalocka Station. He has showed them all the rockholes on Kirkalocka Station and on the west side of Wydgee Station, and the white cockatoos site on Kirkalocka Station.
Outline of Dr Choo’s evidence
Expert historical and anthropological evidence was also give at the hearing. The following expert reports of the historian, Dr Christine Choo, called by the claimants, were received into evidence:
·Applicants’ Expert Historian Report filed 11 May 2012 (Dr Choo’s first report).
·Applicants’ Expert Historian Further Report filed 27 August 2012 (Dr Choo’s further report).
·Applicants’ Expert Historian Supplementary Report filed 27 August 2012 (Dr Choo’s supplementary report).
Dr Choo holds a Masters of Philosophy (specialising in Australian studies) and a Doctorate of Philosophy (in history). She is an Honorary Research Fellow at the University of Western Australia. Her experience and expertise were not questioned in the proceeding. The respondents chose not to call evidence from an expert historian.
The range of sources consulted by Dr Choo in compiling her reports included:
·primary archival documents generated by the Western Australian Government and held by the State Records Office of Western Australia;
·files generated by the Aborigines Protection Board, the Aborigines Department and its successors and files of the police department relating to particular police stations;
·primary archival documents held in private archives including the Archives of the New Norcia Benedictine Community;
·primary archival documents held in the Commonwealth archives;
·secondary sources in the style of local and family histories;
·witness statements and transcripts of evidence given by Badimia claimants as preservation evidence in the litigation proceedings; and
·books and other publications written by individuals who may have lived or worked in and around the claim area, including personal reminiscences of early European settlers and prospectors.
In addition to this research, Dr Choo was also provided with the Applicants’ Expert Anthropological Report prepared by Mr Michael Robinson filed 25 May 2011 (Mr Robinson’s first report) and the First Respondent’s Expert Anthropological Report prepared by Dr Ron Brunton filed 1 December 2011 (Dr Brunton’s first report).
Dr Choo stated in her first report that there is a singular lack of secondary sources regarding Badimia country and the Murchison region. The history of the region has not been seriously studied or documented in any other way except within the context and style of local and family histories written to commemorate anniversaries and events that are significant to the European settlers. As such, these documents are highly Eurocentric in content and approach. Dr Choo, however, placed some reliance on the book entitled, Drawn to Mt Magnet: Wannars, Dolly Pots, Shears (Shire of Mount Magnet, 1995) by Lorna Day and Karen Morrissey (Day and Morrissey), as many of their Aboriginal informants were related to the Badimia claimants.
In her first report Dr Choo detailed the explorers and surveyors who travelled either through, or close to, the Badimia claim area. Records of explorers who did not travel into the claim area provide evidence for Aboriginal occupation of Badimia land through inference, since Aboriginal people were observed in areas of the Murchison immediately to the north and to the west of the claim area. Dr Choo discussed the Assistant Surveyor Robert Austin’s encounters with Aboriginal peoples within the claim area in 1854, which were at times hostile.
Other expeditions that Dr Choo has recorded also provide evidence of Aboriginal occupation of the claim area. Most significantly she mentioned Government Surveyor HS King’s expedition in 1886, on which he renamed a number of places with European names, changing them to Aboriginal names.
Dr Choo stated that the settlement of Western Australia was aided by the cheap labour provided by Aboriginal people. She said the relationship between the Aboriginal population and the European settlers was relatively benign in the claim area and Badimia people were able to coexist with explorers, pastoralists and miners after European settlement of their country.
In her first report, Dr Choo did not express an opinion on whether the descendants of the claimed apical ancestors were Badimia people. Having given consideration to the evidence of the Aboriginal witnesses in the proceeding, however, Dr Choo ventured the opinion that those who claim that they are the descendants of the apical ancestors are Badimia people.
In the process of her research Dr Choo came to the view that the ancestors of the current claimants had lived and worked on pastoral stations within the claim area from the creation of the stations by European families. These families were amongst the first Europeans with whom the Badimia came into contact. She said Aboriginal peoples tended to resist leaving their own country, attempting instead to remain attached to particular stations and places to which they had strong familial or community connections. Pastoralists and their families too formed strong bonds with particular Aboriginal families who worked for them.
Dr Choo stated that the attachment that Aboriginal people had to their land was recognised by the Chief Protector of Aborigines in his annual report of 1905:
Each little tribe of natives so loves its own little district, and this love has been inherent in these races for such a long period that the old and crippled members of the tribe will hardly ever seek relief out of their district. They will die first; and to prevent such a wholesale cruelty, I see no way but to continue nearly all these relieving stations.
Dr Choo expressed the view that after the spread of pastoral stations through Badimia country the Aboriginal peoples of the area would attach themselves as shepherds and general hands to a station that adjoined their particular country. When not working they camped, hunted and gathered food as they had always done. Thus they were able to adapt their traditional way of life to their new environment.
Dr Choo could not find Department of Aboriginal Affairs records for all pastoral stations within the claim area. She was, however, able to find Department of Aboriginal Affairs records for many of the stations which, in her opinion, showed that the ancestors of the current Badimia claim group lived and worked on the stations.
Some station records provide an insight into the relationships between Aboriginal people and station owners in earlier times. Dr Choo said Kirkalocka Station was recorded as having a sympathetic station manager, Mr Fred Broad, in the first half of the 20th century, and three Aboriginal people, Nugget, Dinah and Emily are recorded as living there. (As noted above, Ollie George gave evidence that Nugget Sport and Dinah raised him on Kirkalocka Station and other stations south of Mount Magnet.)
Mr Broad fought to protect many Aboriginal people who were starving or had no clothing. Letters sent by him to the Department of Aboriginal Affairs (as it is currently known) requesting rations for “Lizzie” received the response from the Department that “Lizzie” be removed to Moore River Native Settlement, outside and well south of the claim area. Mr Broad wrote back to the Commissioner of Native Affairs stating:
These old native women have no wish to be transported out of their native country, and where a station is willing to supply food, it does not seem right to me that the Department would bear the cost of transport, and food whilst living at the mission, against the small cost of providing clothing, rugs, and allowing the old women to remain in their own district.
Nalbarra Station employed a number of Aboriginal people in the late 1800s and early 1900s but not much detail is known. All the work on the station was done by the Aboriginal people. There was a camp where 20 to 30 Aboriginal people lived on the property. The station supplied flour, tea, sugar, dresses for the women and clothes for the men.
Department of Aboriginal Affairs records indicate that there were eight Aboriginal people living there in the late 1950s, including the Fogarty family and Ollie George. In the early 1960s Audrey Bell, Tony Clinch and Robert Anderson were recorded as working there as seasonal workers. In the late 1960s Jones family members and Josephine Wheelock were recorded as working and living at the station.
Dr Choo noted that the first mention of the Little family in the claim area was in 1901 when a white man named Little was mentioned by Travelling Inspector GS Olivey to the Chief Protector of Aborigines. This man, James Chapman Little, was married to Polly, and his five children were mentioned. Mr Little’s daughter was listed as being at “Mr Clinch’s”.
Topsy Little, daughter of James Chapman Little and Polly, was later married to Mr J Green, a European man, who died young. She then married Arthur Fogarty and they lived in Paynes Find with their three children.
Daisy Little, Topsy’s younger sister, married Fred Hedlam and had five children. In the 1930s and 1940s, many Little family children attended the Paynes Find school. Dr Choo located records that indicate that, in the 1950s, the Little family were still living and working in the claim area.
The Fogarty family were described by Dr Choo as descendants of William Fogarty and Juumbi, whose son Arthur Fogarty, as just noted above, married Topsy Little. Dr Choo has located records that indicate that in the 1950s, the Fogarty family were living and working in the claim area.
Dr Choo noted that there are records of Ada Martin and James Martin living on Yoweragabbie Station during the 1940s. She noted Ada and James were the children of Fred Martin and Lily Little. Fred Martin, his wife and eight children were camped around Mount Magnet in 1941 and they were one of five Aboriginal families camping there. In 1949, Fred Martin wrote to the Secretary of the Australian Labor Party in Mount Magnet to complain about the treatment he had received at the hands of the local police. The police had required him to report when he entered the town of Mount Magnet, then a mining town, to get supplies.
In 1903, a police report recorded that, when patrolling Barron, Goodingnow and Ninghan Stations, five native dogs were destroyed that belonged to Carnamah Freddy, Topsy and Dinah who were employed at Ninghan Station. Dr Choo stated that the Carnamah family married into the Wheelock (aka Willock) family. Fred Carnamah married Mary Wheelock (Budi), the daughter of Edmund Wheelock and Topsy. She said William Wheelock, Mrs Thompson’s first husband, was recorded in Yalgoo in 1915, and was also known as “Munguddy”. He was approximately 23 years old. Josephine Wheelock worked at Edah Station in 1968. Dr Choo states that records indicate that the Carnamah family lived around Yalgoo in the 1940s and 1950s.
The George family and the Walsh family lived and worked on stations throughout the claim area. Dr Choo noted Ms C George provided data to Dr Kim Fleet who undertook research in the claim area. Ms C George was said to be close to 100 years old when she died in 2005. Dr Fleet was able to collect data from Ms C George (which Mr Robinson, the anthropologist called by the claimants, has utilised) in relation to the George family’s occupation of the claim area since first contact. Mr Robinson estimated that the George family apical ancestors, Bilygwi and Yilayajambin, were born in approximately 1869 in the claim area.
Dr Choo located documentation pertaining to Ninghan Billy, Ninghan Freddie and Walter Ninghan. She said brothers Joe and Bill Lawson were the sons of Ninghan Billy and Annie Benjamin. Joe Lawson was recorded as working at Ninghan Station in 1914. Dr Choo stated that many members of the Lawson family are recorded as living and working in the claim area and west to Yalgoo (said by claimants to be traditional Badimia country) from then through to the 1970s.
In September 1904, Police Constable McGuiness of Fields Find Police Station reported that he travelled to Goodingnow Station where the lessee, Gus Clinch, informed him that dingoes had attacked his sheep, and an old “native” named “Binder” claimed his dogs had killed three dingoes.
Dr Choo located the records for Ninghan Station and said they appear to show that Badimia people were using the traditional camping grounds and waterholes at least until the 1940s. The manager of Ninghan Station, Mr LC MacPherson, claimed that “some of these natives have made a nuisance of themselves by passing through and camping on wells where stock are watering”. As well as the Lawson family working on Ninghan Station in the 1940s to the 1960s, the Bandy family also worked there in the 1960s. Leah Bell has leased Ninghan Station since 1993 and she lives there with her son, grandson and great grandchildren.
Dr Choo detailed the Clinch family’s association with Goodingnow Station. The Goodingnow Station lease was held by Gus Clinch from 1904 and the family held the lease until the 1950s. Goodingnow is a significant place for the Clinch family as it is on the northern shores of Lake Moore (usually a dry lake) and close to other sites to the west which are places of special significance to the family. The archival records indicate that Goodingnow Station had an Aboriginal orientation because of Gus Clinch’s connection with the Aboriginal people among whom he lived. Dr Choo considered the station functioned as a bridge between a traditional Aboriginal lifestyle and European ways.
In Dr Choo’s first report she also outlined the early history and establishment of the local towns including Mount Magnet and Paynes Find, and the now deserted and defunct Lennonville and Boogardie. Paynes Find was still a thriving town in the 1930s. After the white families left in the 1940s the Aboriginal families remained, including the Clinch, Fogarty, Hedlam and Little families.
In April 1947, there was a protest at Mount Magnet where 17 Aboriginal people were arrested for loitering. They were protesting against the prohibition that forced Aboriginal people to leave town when ordered to by the local police. As noted above, in 1949 Fred Martin complained about having to report to the police when he entered the town for supplies. In June 1949, Mrs Arthur Clinch wrote to the Commissioner of Native Affairs “protesting against the actions of the local Police Constable at Mount Magnet who was preventing Aboriginal people from entering the town area even in daylight hours, which was against the spirit of the declaration of prohibition”. In 1954, the declaration of prohibition in Mount Magnet was lifted and Aboriginal people could move around freely.
Dr Choo stated that the decline in employment of Aboriginal people on pastoral stations, after the introduction of award wages with the Federal Pastoral Award, meant that many Aboriginal workers drifted into the towns from the 1970s.
Dr Choo said another reason that Badimia families moved to the towns was to provide their children with an education. The Fogarty, Little, Clinch and Martin families, she said, were sending their children to school in Paynes Find from at least the late 1920s. As noted above, in the 1940s many of the children at the Mount Magnet school were from the Little family.
This evidence confirms that the claimants and their ancestors have a long association with the claim area, including with pastoral stations in earlier times.
Outline of Mr Robinson’s evidence
Mr Robinson, an experienced anthropologist who has been called in other native title proceedings by both claimants and the State, was called by the claimants. As well as Mr Robinson’s first report to which reference has been made above, the claimants also tendered the Applicants’ Expert Anthropological Supplementary Report, filed 24 August 2012 (Mr Robinson’s supplementary report). Mr Robinson did not personally undertake specific fieldwork for his reports but, before being engaged to write those reports, he had already spent considerable time researching the Badimia claim for the Yamatji Marlpa Aboriginal Corporation from 2006. This included having Mr Mark Chambers conduct documentary research and fieldwork under his supervision.
A first tranche of Aboriginal evidence was taken in the proceeding in 2010, which Mr Robinson did not attend. Mr Robinson did attend, however, the second tranche of Aboriginal evidence in 2012.
Mr Robinson stated that research has been carried out on the Badimia claim over a 15 year period. During that time, a number of field notes have been compiled relating to senior members of the Badimia group who have now passed away, and who were people who were born and raised on the pastoral stations within the claim area.
Four reports were prepared for mediation with the State. Mr Robinson read and analysed them and referred to them in his two reports. Those four reports are as follows:
·a connection report written by Dr Fleet in 2001;
·a further connection report by Dr Fleet written as supplementary to her earlier report in 2003;
·an anthropological report written by Dr Katie Glaskin in 2006; and
·a report providing supplementary information and commentary written jointly by Mr Chambers and Mr Robinson in 2007.
Mr Robinson also read and took account of the earliest ethnographic accounts available relating to the claim area. In particular, he looked at the work of Bates and Tindale, and for his supplementary report he examined the work of Kingsford, Dunn, Peter Randolph and Stephen Davis.
Mr Robinson stated that, accepting the qualifications and limitations of the data, the ethnographic data that he examined provided material that could be compared with the contemporary accounts of the claimants, mostly derived from field data of Dr Fleet and Mr Chambers and the evidence of the Badimia witnesses themselves. Based on this comparison, Mr Robinson was able to offer the view that Badimia society, as he defined it, has continued to exist since sovereignty and has remained united in its acknowledgement and observance of Badimia laws and customs.
Mr Robinson concludes that, although European settlement affected Badimia people’s ability to maintain a fully independent economic life and disturbed their traditional local organisation, there is still a group of people who identify as Badimia and possess a distinctive Badimia culture.
Mr Robinson’s evidence supports the claimants’ case that the Badimia people possess native title rights and interests throughout the whole of the claim area.
Mr Robinson took issue with Dr Brunton’s key conclusions.
Outline of Dr Brunton’s evidence
Dr Brunton, an anthropologist who has given expert evidence for respondents in previous native title proceedings, was called by the State. As well as Dr Brunton’s first report, to which reference has been made above, the State tendered the State’s Expert Anthropological Report by Dr Ron Brunton filed 24 August 2012 (Dr Brunton’s supplementary report). Both reports of Dr Brunton were responsive to Mr Robinson’s two reports. Dr Brunton did not have the benefit of carrying out any fieldwork in the claim area and appears to have had little experience working with Aboriginal peoples in the wider region. Unlike Mr Robinson, Dr Brunton did not attend any of the hearings at which the Aboriginal witnesses gave their evidence.
Dr Brunton agreed with Mr Robinson that the “ethnographic and ethno historical literature dealing with the [claim] area is limited and patchy”. Dr Brunton stressed that this is particularly so for the century following European settlement in the Murchison region up until the 1970s. Dr Brunton considered that Mr Robinson’s use of the material produced by Bates, Davidson, Fink, Douglas, Kingsford and Dunn was inadequate.
Dr Brunton’s first report argued that the claimants’ case, that one group of Badimia people occupied the claim area at sovereignty, is incorrect. He considered there were four separate groups according to the research he undertook. In Dr Brunton’s opinion, the group that occupied the north were the Wajarri, or a closely related group, the Widi occupied the south‑western portion of the claim area, and either the Kalamaia, or an unknown group, occupied a portion of the south-east. Hence, Aboriginal peoples identifying as Badimia, or a similar name, traditionally occupied only a part of the eastern portion of the claim area.
In relation to discontinuity, Dr Brunton said that Badimia society no longer exists in a form that has its traditional roots in the society that existed at sovereignty. Instead, there is a new society composed of people of mixed origin, some of whom may or may not have had biological links to the Badimia apical ancestors and others who came to occupy pastoral stations after sovereignty.
Dr Brunton did consider, however, there was evidence that places apical ancestors Frances Bynder, Polly Little and Eva Renie in the claim area at the time of first contact/settlement but thinks that it is more likely that they were not Badimia women.
In cross-examination, Dr Brunton did accept that various beliefs and practices described by witnesses who said they were Badimia, are pre-sovereignty in origin. He also accepted that there is today a normative system under which Badimia people possess rights and interests in land, but he queries whether that system has been continuous since sovereignty and also “the extent to which that normative system is actually widely held”.
Expert anthropologists’ conference
Pursuant to an order of the Court, Mr Robinson and Dr Brunton attended a conference in Perth before a Deputy District Registrar, who produced for the use of the Court and the parties a document identifying those matters and issues in respect of which they were in agreement or disagreement and where the experts’ opinions differed, the reasons for their disagreement (joint report of the experts).
The joint report of the experts filed 14 May 2012 was tendered into evidence. The issues that the experts were asked to discuss at the expert conference were whether:
(1)at the time of sovereignty, the claim area was occupied by the Badimia people who acknowledged and observed a common body of laws and customs under which they possessed rights and interests throughout the whole of the claim area;
(2)the rights and interests possessed by the Badimia people in the claim area at sovereignty were likely to have included the rights and interests which are listed in the Applicants’ Statement of Facts Issues and Contentions filed 28 September 2010 (claimants’ SFIC);
(3)since the time of sovereignty and through until today, the Badimia people have continued to exist as a body of persons who are united in and by their acknowledgment and observance of a common body of laws and customs which show continuity with the laws and customs which were likely to have been acknowledged and observed by their ancestors at the time of sovereignty;
(4)although there have over time been changes to the laws and customs of the Badimia people, the Badimia people continue to possess the rights and interests listed in the claimants’ SFIC under laws and customs which find their origin in the laws and customs that existed at the time of sovereignty;
(5)the apical ancestors identified in the claimants’ SFIC are the apical ancestors of the Badimia claimants and whether the data supports the conclusion that they were present in the Badimia claim area at or about the time of first European settlement;
(6)it would be reasonable to infer that those apical ancestors are the descendants of Badimia people who were present in the claim area at the time of sovereignty; and
(7)the Badimia people have maintained a connection to the claim area.
As to issue (1), Mr Robinson and Dr Brunton expressed their agreement to the extent that Dr Brunton said it was possible that some “eastern” Badimia, as he described them, were within the claim area at the time of sovereignty.
Mr Robinson stated that the starting point for this inquiry must be the claimant evidence. Mr Robinson noted that the transcript and statements of evidence from the preservation or early evidence identified the claim area as Badimia country and no other Aboriginal people have claimed it. Mr Robinson believed Kingsford’s thesis and the recent work of Davis support the claimants’ assertion that the claim area is Badimia country, and the views of Fink, Douglas and Tindale also lend support to the claimants’ evidence. By contrast, he said the material of Bates is slight and confused. In Mr Robinson’s opinion, Bates’ data lacks certainty and does not displace the claimants’ and other anthropological evidence.
Dr Brunton took a different approach and considered that he could not primarily rely on claimant evidence to establish the situation at sovereignty nor early contact. Dr Brunton stated that the occupation of the claim area by the Badimia people is open to question. By his evidence, the Court understood him to suggest that data collected within the last 30 years, a century after first contact and considerably more time since sovereignty, is too removed from the contact period to be relied on. Dr Brunton noted that Kingsford and other researchers, apart from Davis, did not find that territory identified with Badimia people encompassed all the claim area.
Dr Brunton was of the opinion that the findings of Bates indicate there were two separate groups with different laws and customs who had names that sounded like Badimia, comprising a western group near the coast and an eastern group to the east of the claim area. This is consistent with information obtained by Davidson as well as some recent Aboriginal accounts.
As to issue (2), the experts agreed that the rights and interests possessed by the Aboriginal people in the claim area at sovereignty were likely to have included the rights and interests which are listed in the claimants’ SFIC.
As to issue (3), the expert anthropologists could not agree. Mr Robinson referred to the claimants’ evidence that supports the existence of a continuing body of people who observe traditional laws and customs, albeit in a modified form. He stated that he had not seen anything in the literature that contradicts this view in a material way.
Dr Brunton’s opinion regarding issue (3) closely relates to the opinion held regarding issue (1) above. It was Dr Brunton’s opinion that there was neither a single body of people who could be identified as Badimia at sovereignty nor a single society within the boundaries of the claim area. He stated that there are degrees of uncertainty. He considered that there appear to be some traditional laws and customs currently acknowledged by the Badimia claimants. Dr Brunton considered that the issue is whether they are central or peripheral traditional laws and customs. The laws and customs necessary to maintain connection have not continued to be observed by the claimants.
As to issue (4), the experts could not agree. Mr Robinson was of the opinion, based on his experience and research, that the suite of rights listed in the claimants’ SFIC is consistent with other Aboriginal groups’ rights and that the rights have been possessed on a continuing basis since sovereignty. Mr Robinson considered that fishing is the exception, although he was prepared to accept that it might be possible to establish this right should further information or evidence come to light.
Dr Brunton stated that the Badimia claimants are accessing resources, as opposed to exercising rights and interests that stem from the laws and customs of the different societies that occupied the claim area at the time of sovereignty. Dr Brunton came to this conclusion based on the presence of Aboriginal people from other parts of Western Australia in the claim area. The presence of non-Badimia people utilising resources derives from the post‑European settlement period. He also stated that there is no continuity of observance of traditional laws and customs and the contemporary claimant activity is not substantially different from resource usage by non-Aboriginal people.
As to issue (5), the experts partly agreed. Mr Robinson’s overall view was that the apical ancestors, identified in his report, are the ancestors of the Badimia people who were present in the claim area at the time of settlement.
Dr Brunton indicated that Polly Little, Eva Renie and possibly Francis Bynder were likely to have been present in the claim area at the time of settlement but did not concede that they were necessarily Badimia people. Dr Brunton stated that he can link the individuals identified by Tindale to contemporary claimants, but Tindale had identified them as “Widi” not Badimia. Dr Brunton questioned whether the reference to Widi is equivalent to Badimia.
As to issue (6), the experts partly agreed. Mr Robinson was of the opinion that a core group of Badimia people have remained in occupation of parts of the claim area in and around Mount Magnet. He stated that the claimants maintain cultural connection whether as residents or not and continue the transmission of knowledge to younger generations. This is done through kinship, undertaking responsibilities and the perpetuation of belief in the Bimara and other spiritual beings, in addition to regular visits to the claim area and the undertaking of cultural responsibilities.
Dr Brunton was of the opinion that some claimants can trace a physical connection back to European settlement. He stated that Kingsford’s information suggests that people who failed to maintain a physical connection with country in the claim area lost their rights. On the other hand, Dr Brunton did not believe that cultural connection had been maintained, in a significant sense, to the necessary degree.
The evidence of the anthropologists helps to frame consideration of the key connection issues.
At the trial, the anthropologists gave oral evidence concurrently and further explained their respective opinions. This evidence is referred to below in the course of considering the key issues.
WAS THE CLAIM AREA BADIMIA COUNTRY AT SOVEREIGNTY?
The evidence of members of the claimants given at the trial was that the claim area with which they and their ancestors are and were associated is traditional Badimia country. Their evidence was based on their understanding that they, and their ancestors, are and were Badimia people, and had grown up, especially in the pastoral era, on traditional Badimia country. Many of the witnesses considered that traditional Badimia country extended well beyond the claim area.
In Mr Robinson’s first report, having regard to earlier ethnography and his assessment of its weight, Mr Robinson concluded that the findings of his preferred early ethnographers were “broadly consistent with the location of Badimia people in the native title claim area and beyond at the time of sovereignty”.
In Dr Brunton’s first report, Dr Brunton agreed there was limited early data and that this factor, together with post‑sovereignty movement by Aboriginal peoples as a result of European settlement, made it difficult to identify with precision the names and identities of the Aboriginal group or groups associated with the claim area at sovereignty. Dr Brunton was firmly of the opinion, however, that the early data showed there were a number of different tribes or language groups associated with different parts of the claim area at sovereignty, and he was critical of Mr Robinson’s first report for “aggregating” ethnographic sources together, without taking inconsistencies into account, in aid of concluding that the claim area was associated at sovereignty with Badimia people alone.
The anthropologists further considered the extent of country issue in their supplementary reports and in their joint report of the experts, and then gave concurrent evidence about it (as noted above) and were cross‑examined on the topic at the hearing.
Claimants’ primary submissions
The claimants note and contend in respect of the evidence as follows:
(1)The evidence of the Aboriginal witnesses strongly supports Mr Robinson’s conclusion that the claim area includes, but is not limited to, the traditional lands of the Badimia people at sovereignty.
(2)In his first report, Mr Robinson used the term “tribe” to describe traditional sociolinguistic groups even though this term is not in favour currently in anthropological writings. He said he used the term “tribe” as it is used by Badimia people to refer to themselves. He noted that the term “language group” is a substitute but the Badimia do not have a strong belief in a language-land relationship although they have a strong belief that land is associated with the Badimia as a social entity and that it is people of Badimia identity who should “speak” to country.
(3)Mr Robinson stated that the Badimia people use the term “tribe” in the broadest sense, to identify themselves as a group of kin having rights over a defined tract of country.
(4)In first report, Dr Brunton critically stated that, until the 1960s anthropologists generally failed to realise the importance of distinguishing between those people who held transmissible “proprietary rights” in tracts of land, and those who lived on those tracts and used their resources. In that context, Dr Brunton discussed the anthropological use of the terms estate, range, clan and band.
(5)Mr Robinson stated in his first report that the boundaries of the Badimia claim area are conservatively drawn in relation to previously published and unpublished sources and the evidence of Badimia people themselves. The most complete research is to be found in the works by the linguist Dunn and the anthropologist Kingsford who both positioned the Badimia in an area of land that includes the claim area. There is support in the literature for Badimia territory being much larger than the Badimia claim area, particularly toward the west and further south over Lake Moore. The evidence of Badimia witnesses was also supported by the neighbouring witnesses.
(6)In Mr Robinson’s view, Bates’ data provides general support for the location of Badimia people in and near the claim area in the period between 1900 and 1910 and he stated that from that data it may be inferred that the Badimia resided in the claim area at the time of sovereignty. Bates’ documentation is not precise enough, however, to say what the boundaries of Badimia country may have been in 1900.
(7)Dr Brunton’s first report concluded, based on Bates and Tindale, that at the time of sovereignty “proprietary rights and interests” in the claim area were held by more than one tribe or language group including the Widi, Kalamaia and the Wajarri. In addition, Dr Brunton considered that people identified by Bates as either “Baadeemaia” (in the west) and “Badimaia” (in the east) were different groups. Dr Brunton considered that it is possible that the people referred to by Bates as “Badimaia” already occupied a portion of the claim area in the east at sovereignty. Therefore, the “Badimaia” represented a fourth group. Mr Robinson dealt with the Wajarri, Widi, and Kalamaia/Kakara/Gagara/unknown group in his supplementary report.
(8)Dr Brunton considered that “the people of Mount Magnet and the area to its north were probably Wajarri or a closely related group”. Mr Robinson said there is no support for this opinion. Mr Robinson pointed to the draft of the dictionary currently being prepared for the Badimia language where it states that “Badimaya is closely related to Wajarri, the language of the Murchison and the speakers of Badimaya can generally understand much Wajarri”. Further, Wajarri man Lance Mongoo gave evidence about the boundaries between Wajarri and Badimia country.
(9)Nhanhagardi elder, Clarence (Clarrie) Cameron, gave evidence about the country of the Wajarri and the Badimia and clearly described them as different areas. It is important to note that both Mr Mongoo and Mr Cameron have lived in Mount Magnet. They both learnt about Badimia country while living in the claim area before the commencement of the NTA.
(10)Finally, as Dr Brunton conceded, the placement of the Wajarri in the northern portion of the claim area was not only inconsistent with the Aboriginal evidence, it was also inconsistent with some of the ethnography as, in particular, Tindale, Kingsford and Dunn all identified the northern portion of the claim area as Badimia country.
(11)Mr Robinson concluded that there appears to be no support in Tindale’s own field data for an extension of Kalamaia territory so far west. Dr Brunton agreed with Mr Robinson that the genealogies taken by Tindale appear to relate to the area around Southern Cross and not the Lake Moore region. Mr Robinson could not find any support in the data collected by Tindale for the presence of the Kalamaia at Lake Moore or in the Paynes Find area.
(12)Mr Robinson concluded that Tindale’s placement of the Kalamaia at Lake Moore is unsupported and that the sources he cited in fact support a presence there by the Badimia. In cross-examination, Dr Brunton agreed that Mr Robinson’s analysis of the Tindale data regarding the Kalamaia was convincing.
(13)Mr Robinson believed that where Tindale had sound information from local informants his association of “tribes” with specific stretches of country is reasonably sound, but he also had a tendency, where material was absent or unreliable, to assign tribes to land on a speculative basis. The latter tendency is particularly noticeable in the Murchison where his data was weak.
(14)Bates assigned much of the claim area to two groups: the “Wirdi Wonga” (Widi) in the west and the “Badimaia” (Badimia) in the east. There is, however, some significant evidence in Bates’ work to suggest that her Wirdi Wonga and Badimaia were one and the same people. On that basis, it is a reasonable inference to draw that in the first years of the 20th century the Badimia people occupied much of the claim area.
(15)Tindale’s 1974 maps also placed the Widi group in an area in the south‑west of the claim area. In the 1960s, when he was carrying out the research which led to his 1974 map, Tindale obtained information about the Badimia from three informants. Two of those informants, Crow Battle and William Hamlet, knew about the Badimia, but did not know a group called Widi. Tindale’s other informant, Maggie Bell, told Tindale that “Widi” country went north to Mount Magnet and that “we call ourselves Badimaya”. Dr Brunton in cross‑examination agreed that the information given by Maggie Bell to Tindale included data that Paynes Find people speak “Badimaya” and that this was consistent with the data collected by Kingsford, Dunn and Stephen Davis in the 1980s. He accepted that a reasonable interpretation of what Maggie Bell said to Tindale is that Widi was simply another name for the Badimia. Indeed, it is the most likely interpretation of what she said. Dr Brunton also accepted that Tindale’s Wajarri informants considered the Badimia and the Widi to be the same people.
(16)Mr Robinson did not consider that a group separate to the Badimia, called the Widi, existed in the past. This opinion is supported by the evidence of the Aboriginal witnesses. Mr Robinson stated that the claimants believe that the Widi claim is a construct for the purposes of native title.
(17)Dr Brunton agreed that all the witnesses, including the Badimia neighbours, include the whole of the claim area within their accounts of Badimia territory. He also accepted that there is a considerable body of ethnography which pre-dates the NTA and which would support the conclusion that the Badimia and the Widi are one and the same people.
(18)There are no overlapping claims over the claim area. It is submitted that the evidence of the neighbouring witnesses, Clarrie Cameron, Lance Mongoo, Darren Farmer and Kevan Davis as well as the lack of any overlapping claims is demonstrable evidence that the claim area is traditional Badimia country.
State’s submissions
In the circumstances, I find that s 47A does not apply to reserves 24431 and 41626.
Section 47B – Vacant Crown land covered by claimant application
Section 47B NTA provides:
47B Vacant Crown land covered by claimant applications
When section applies
(1)This section applies if:
(a)a claimant application is made in relation to an area; and
(b)when the application is made, the area is not:
(i)covered by a freehold estate or a lease; or
(ii)covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii)subject to a resumption process (see paragraph (5)(b)); and
(c)when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2)For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
Note:The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
At the outset, the State says the claimants’ submissions have not specified the particular locations to which s 47B is asserted to apply and it is “grossly insufficient” to simply assert that there are large areas of UCL in the claim area to which s 47B may potentially apply. It contends this makes it difficult for the Court to identify the locations in respect of which the criteria in s 47B(1)(b) and (c) are to be considered.
The State says that it is for the claimants to determine which areas satisfy s 47B and they had all necessary data in the tenure DVD and tenure affidavits to complete this task. In the State’s submission, the Court should therefore find that the claimants have failed to demonstrate the application of s 47B to any area within the claim area.
It is regrettable that the claimants have not identified the areas to which s 47B is asserted to apply in any great detail. As the State observes, this lack of precision makes it difficult for the Court and other parties to identify the locations in respect of which the criteria in s 47B(1)(b) and (c) must be considered. The onus ultimately rests on the claimants to determine the areas to which s 47B is asserted to apply.
While the claimants’ submissions regarding s 47B lack relevant detail, I am not satisfied that the Court should make a general finding that the claimants have failed to demonstrate that s 47B applies to any area in the claim area. Instead, I will consider the application of s 47B to each area raised in the claimants’ submissions.
Thundelarra, Warriedar, Burnabinmah, Lakeside and Lake Austin Stations
The claimants assert that Thundelarra, Warriedar and Burnabinmah stations have all become UCL since the initial Badimia claim was lodged, as well as portions of Lakeside and Lake Austin Stations. They rely on witness evidence to show that members of the claim group occupied the area at the date of the application.
The State submits that these areas were covered by a lease or other reservation, proclamation, dedication, condition, permission or authority at the date the initial Badimia application was made, meaning that s 47B cannot apply to these areas in respect of the initial Badimia application. It acknowledges that these areas have become UCL since 4 October 1996, but says no tenure evidence has been prepared regarding the application of s 47B at the date of the Badimia # 2 claim.
In light of my finding that the Badimia # 2 claim should not be dismissed, and but for the finding above that the claimants have not proved native title exists, I would have given the State leave to file further evidence, if required, regarding the application of s 47B to these areas at the date of the Badimia # 2 application. However, for the reasons below, I am not satisfied s 47B applies here as claimed.
UCL East of Kirkalocka Station
The claimants submit there appears to be a large UCL block east of Kirkalocka Station. They note that the Court heard evidence at Chewar Rockhole on Kirkalocka Station in November 2010 and that Ollie George took the Court to the top of Chewar Rockhole and pointed out many sites in all directions. Ollie George gave evidence that he frequently visits Kirkalocka Station and surrounding areas.
The State submits that the evidence of “occupation” is insufficient. It estimates that Chewar Rockhole is 23 kilometres from the nearest corner of the block of UCL to which the claimants appear to be referring, and this area is not on Kirkalocka Station. It says Ollie George pointed to sites to the north, south and south-east of the rockhole relating to Kirkalocka Station and none of the sites referred to are in the vicinity of the UCL which is north-east of Chewar Rockhole. In the State’s submission, the claimants have pointed to no evidence to demonstrate that Mr George or any other member of the claimant group has ever visited the UCL in question.
I accept the factual circumstances described by the State and am not satisfied that the claimants have provided sufficient evidence regarding occupation of the UCL. I am left uncertain as to whether any member of the claim group has ever visited this UCL or carried out any relevant use or activity in this area. Accordingly, I find that s 47B does not apply to the UCL east of Kirkalocka Station.
Lake Moore
The claimants contend that Lake Moore is currently UCL and s 47B should apply to disregard any extinguishment.
In respect of occupation of this area, they refer to Darryl Fogarty’s evidence that he has been handed down the custodial right to speak for, and the responsibility to protect, the Lake Moore area. He said that he, his brother and others, such as Ashley Bell, look after Lake Moore and other places connected to it. Further, Darryl Fogarty stated that he used to work in the Mardarburdah Hill region, on the eastern side of Lake Moore, and knows about soaks in this area. In a 2010 statement, he said he worked on Mouroubra Station, east of Lake Moore, as a child and used to camp out there. He gave evidence that he is familiar with a hide-out on the edge of the lake and has camped at Goodingnow Station, near the northern tip of Lake Moore, with Billy Barlow.
Coral Brockman gave evidence that she believes her great-grandmother handed down custodial responsibilities for the Lake Moore area to her and the whole Lake Moore area is of special importance to the Badimia people and her family. She said it is rich with traditional Badimia food, medicines and has sacred sites. She stated that she visits the area every year and has camped at Goodingnow Station every Easter since 1969 and is often accompanied by her family. When she is there, she said she looks after the sacred sites around Lake Moore, hunts for bush tucker and traditional medicine, and teaches young people how to catch goannas, kangaroos and emus.
Beverly Slater gave evidence that her grandfather was born on Goodingnow Station, near Lake Moore, and had special custodial roles regarding traditional law and significant sites. She said her mother grew up on Goodingnow Station and she was born there and lived there for her first two years. Ms Slater stated that she has taken all her children out to Goodingnow Station and continues to do so as often as she can, visiting about once a month. She noted that one of the first things she does is to check that the waterfall at Goodingnow Station is clean and well-maintained, as this is a sacred site and a special place, and every time she visits she throws sand in and talks to the Bimara. She provided details of a camping trip she took about five years ago at Goodingnow Station. She said she had brought a property to enable her to be “closer to my home at Goodingnow” and she hopes to move back there permanently.
The State submits that portions of Lake Moore were covered by exploration licences E5900525 and E5900623 granted under the Mining Act 1978 at the date the initial Badimia application was made. It contends these exploration licences were a reservation, proclamation, dedication, condition, permission or authority for “public purposes or for a particular purpose” under s 47B(1)(b)(ii) NTA. Accordingly, to the extent Lake Moore is covered by these exploration licences, the State says s 47B NTA has no operation.
In relation to the evidence of occupation, the State says there is no evidence that any member of the claimant group has ever set foot on Lake Moore, whether at the time the claim was lodged or at any time before or since. It submits that the authorities make clear that physical presence (and more than visitation) is necessary to establish occupation for the purpose of s 47B NTA and physical presence must relate to the whole, rather than merely part of the area to which s 47B applies: see Rubibi (No 7) at [72].
In relation to Darryl Fogarty’s evidence that he worked at Mouroubra Station to the east of Lake Moore as a child, the State observes there is no evidence he has been there since. Likewise, the State contends that Mr Fogarty’s evidence that he camped at Goodingnow Station with Billy Barlow must be a reference to a time several decades before 1996, given that Mr Barlow was an elderly man in the 1960s. It states that this evidence does not assist in relation to “occupation” of Lake Moore at the date of the Badimia application, and in any event, Mr Fogarty’s evidence was that he had not been to Kunturu on Lake Moore and there is no evidence he has ever set foot on Lake Moore.
The State submits that Coral Brockman’s evidence relates to Ninghan and Goodingnow Stations and not Lake Moore itself.
Likewise, it contends that Beverly Slater’s evidence relates to Goodingnow Station and not Lake Moore. In any event, it submits her evidence relates to events some decades before the making of the Badimia application, which is not relevant to s 47B(1)(c) NTA.
On this basis, the State submits the Court cannot find that s 47B NTA applies to Lake Moore.
In relation to the State’s submission that portions of Lake Moore were covered by exploration licences granted under the Mining Act 1978 and s 47B cannot apply to any area covered by these interests, I considered this issue in Banjima. At [1207], I found that the grants of prospecting licences and exploration licences, when read with the relevant provisions of the Mining Act 1978, facilitate an activity on land for stated purposes, but do not specify how land “is to be used”. Accordingly, I did not accept that the land covered by the prospecting licences and exploration licences was made exempt from the application of s 47B.
The same result should apply in this case, as the exploration licences were also granted under the Mining Act 1978 and had the same operation. Accordingly, the area of Lake Moore covered by the exploration licences is not exempt from the operation of s 47B.
In relation to the question of occupation, I do not accept the State’s submission that physical presence must relate to the whole, rather than part of the area. In Moses at [215], the Full Court indicated that occupation of an area does not require the performance of a physical activity or activities on every part of the land, and it may be possible to establish that an area is occupied by reference to a wider area which includes the particular area.
I consider that Darryl Fogarty’s evidence that he, his brother and others look after Lake Moore and other places connected to it, while relevant to the claimants’ connection with the area, does not provide the level of detail regarding activities conducted in the area to establish occupation. Further, it is not clear that he has been back to Mouroubra Station since working there as a child. I also accept the submission that Mr Fogarty’s evidence of camping at Goodingnow Station with Billy Barlow must have been a reference to a time several decades before 1996.
I note Coral Brockman’s evidence that the whole Lake Moore area is of special importance to the Badimia people and her family, that she looks after sacred sites and hunts for bush tucker and traditional medicine around Lake Moore. To the extent she refers to camping at Goodingnow Station, this is less relevant, as it does not relate to Lake Moore specifically.
Much of Beverly Slater’s evidence likewise relates to camping and caring for country at Goodingnow Station, near Lake Moore, which is less relevant for the purpose of establishing occupation of Lake Moore. To the extent her evidence relates to matters occurring some decades before the Badimia or Badimia # 2 applications were made, it is also less relevant in establishing occupation at material times.
The evidence makes clear that the Badimia people regard Lake Moore as an area of special importance. Nonetheless, I am not satisfied that the claimants’ evidence of looking after sites, hunting for food and collecting traditional medicine, is sufficient to establish that there has been occupation of the UCL at material times. A number of the activities relate to Goodingnow Station, which is not specifically relevant to Lake Moore, and there is some doubt as to exactly when and where a number of the activities occurred.
On this basis, I am not satisfied, as a matter of fact and degree, that the claimants have discharged their burden of proof. I find that s 47B does not apply to Lake Moore.
Mongers Lake
The claimants submit that Mongers Lake is currently UCL and s 47B should apply to disregard any extinguishment.
As to evidence of occupation, they note that Ashley Bell gave evidence that he has been camping at Salt Creek, near Mongers Lake, since he was a child and still takes his children out there about six times every year. He said he cleans out a rockhole at Mongers Lake which sometimes gets filled in by graders and explained that this is his responsibility because he lives in the area and is responsible for passing knowledge to his son.
Percy Lawson said he goes to Mongers Lake with his wife and children to cook food, check and clean waterholes. He also gave evidence about the location of Ninghan Billy’s grave at Mongers Lake, which he said he found in 2010 when he was grading the road in that area. Mr Lawson said that protecting the grave is “one of my aims”.
The State submits that portions of Mongers Lake were covered by exploration licences E5900495, E5900496 and E5900499 and mining lease M5900302 granted under the Mining Act 1978 at the date the Badimia application was made. To the extent the area is covered by these exploration licences and mining lease, the State says s 47B has no application.
In relation to evidence of occupation, the State submits that Ashley Bell’s evidence of camping at Salt Creek does not necessarily indicate camping occurring at or around 1996. It says it is unclear where Salt Creek is located and it is unlikely Salt Creek is within the area of Mongers Lake as that area only consists of the lake bed itself. Further, it submits there is no evidence of the location of the rockhole at Mongers Lake that Mr Bell refers to, but the inference is that it is located on a road, rather than on a lake bed, given that it gets filled in by graders.
The State accepts that Percy Lawson gave evidence of hunting, camping and cleaning waterholes, at least in the past few years, at Mongers Lake. It submits these activities are unlikely to occur on the surface of the lake itself, as the tenure DVD describes Mongers Lake as “water”.
For the reasons discussed above, the State’s submission regarding the application of s 47B to areas covered by exploration licences must be rejected. Nonetheless, s 47B will have no operation in respect of any area covered by mining lease M5900302 at the time of the Badimia # 2 application.
As to evidence of occupation, the claimants have provided evidence of activities carried out in relation to the area of Mongers Lake, including Ashley Bell camping at Salt Creek and cleaning out a rockhole at Mongers Lake and Percy Lawson cooking food, cleaning, checking waterholes and protecting Ninghan Billy’s grave at Mongers Lake.
I do not accept the State’s submission that the fact that activities could not have been carried out on the surface of the lake is relevant to this inquiry. As the Full Court recognised in Moses at [215], to occupy an area does not require the performance of an activity or activities on every part of the land.
In respect of Ashley Bell’s evidence, it is not entirely clear where Salt Creek is located and I am left quite uncertain about whether his evidence of camping relates to the area of Mongers Lake to which s 47B is alleged to apply.
Percy Lawson’s evidence of activities carried out around Mongers Lake is more relevant in this regard. Yet, it is still difficult in the circumstances to determine exactly when the visitations and activities he describes took place, the area to which they relate and the extent to which these activities involved the relevant assertion being established over the area of Mongers Lake.
Mongers Lake is undoubtedly a place of significance for Mr Bell, Mr Lawson and the Badimia people, but I am not satisfied, as a matter of fact and degree, that there is sufficient evidence of occupation in the circumstances.
Accordingly, I find that s 47B does not apply to Mongers Lake.
Wondinong Station
The claimants submit that it appears from the tenure documentation that Wondinong station is now UCL.
They refer to Ron Bandy’s evidence that he hunts kangaroos at Wynyangoo and Wondinong Stations. He said once they have caught kangaroos, they cook them in the ground and he last did this about 12 months ago. He explained that his grandfather taught him how to cook kangaroo and he has passed this information to his three oldest children.
Roderick Hedlam gave evidence that he camps at Yarraquin Station (north-west of Wondinong) and did some prospecting, looked for emu eggs and hunted kangaroos.
The State submits that Wondinong Station is not UCL. It says the tenure DVD shows that as at 7 July 2011, the pastoral lease 3114/0404 was still current, meaning that s 47B NTA cannot apply to this area in respect of the initial Badimia application. It did not otherwise address the application of s 47B to Wondinong Station.
The State’s submissions do not address the status of Wondinong Station at the time the Badimia # 2 was made. Accordingly, I would have given the State leave to file further responsive tenure evidence in relation to this area at the time of the Badimia # 2 application, but for the finding that the claimants have not proved native title exists.
However, even if it were UCL, I am not satisfied occupation is made out on the claimants’ evidence.
UCL near Whitewells Station
The claimants submit that there is a large portion of UCL in the south‑west corner of the Badimia claim area at Whitewells to which s 47B should apply.
As to occupation, they refer to Frank Walsh Jnr’s evidence that he can see the mulga country come in when he gets to Whitewells Station.
Ashley Bell gave evidence that he has tried to get access to the conservation area, but feels he is not trusted by the managers. He said he spends a lot of time cleaning out and checking on sites and rockholes in the south‑west of the claim area as much as he can gain access.
The State says it appears that at least some of the various parcels of UCL near Whitewells Station were covered by exploration licence E7001546 granted under the Mining Act 1978 at the date of the initial Badimia application. It submits this exploration licence was a reservation, proclamation, dedication, condition, permission or authority under s 47B(1)(b)(ii) and to the extent the area is covered by this exploration licence, s 47B has no operation.
In relation to occupation, the State notes that Frank Walsh Jnr gave evidence that he, like many members of the public, has driven along the Great Northern Highway and noticed the change of vegetation out the window. The State submits this is not evidence that he has ever set foot on parcels of UCL near Whitewells Station and on no sensible interpretation of s 47B NTA is this “occupation”.
The State says it is clear from Mr Bell’s evidence that, he does not have access to relevant areas and this cannot be regarded as “occupation”. The State contends that evidence of Mr Bell’s activities in the general south‑west portion of the claim area is insufficient to establish occupation of the area of UCL south of Whitewells Station.
For the reasons discussed above, the State’s submissions regarding the application of s 47B(1)(b) to the exploration licence must be rejected.
Yet, I am not satisfied that the evidence is sufficient to establish occupation of the area in the relevant sense and generally accept the State’s submissions in this regard.
While Frank Walsh Jnr and Ashley Bell gave evidence of noticing the change in vegetation around Whitewells Station and attempting to get access to the conservation at Whitewells Station, these types of passing visits and activities lack a possessory nature. On the balance of probabilities, I am not satisfied that this evidence establishes occupation of the UCL near Whitewells Station.
Paynesville townsite
The claimants submit that s 47B should apply to the Paynesville townsite.
They note that Roderick Hedlam gave evidence that he and his wife go prospecting and camping on Windsor Station near Paynesville and he often takes Ollie George out there with him. He said they hunt for goannas and kangaroos and collect emu eggs.
The State says it appears that at least some of the lots in this area were covered by prospecting licences P5800969 and P5800846 at the time the Badimia application was made. The State repeats its submission that these licences were a reservation, proclamation, dedication, condition, permission or authority under s 47B(1)(b)(ii) and to the extent the area is covered by the prospecting licences, s 47B has no operation.
The State says the claimants’ submissions contain no evidence of any member of the claimant group setting foot within the Paynesville townsite and Paynesville is not Windsor Station. It submits the evidence of Roderick Hedlam does not establish where on Windsor Station he goes and is evidence of current practice, not practice at the date the Badimia application was lodged.
The State’s submission regarding the application of s 47B(1)(b) to the prospecting licences is rejected for the reasons discussed above.
In the circumstances, I am not satisfied that the claimants’ evidence establishes occupation of the area. I accept the State’s submission that there is no evidence of relevant uses or activities in the area of the Paynesville townsite and that activities that Mr Hedlam carried out on Windsor Station are not in Paynesville. It is not clear on the evidence exactly where Mr Hedlam goes and when these activities occurred. On the balance of probabilities I am not satisfied that there was any relevant occupation of the area.
Boogardie townsite
The claimants submit that s 47B should apply to Boogardie townsite.
They observe that Alan Walsh gave evidence that Boogardie Station is one of the areas that is most special to him because it was his father’s country. He said he still goes out on country to “look after the place” and “see [his] old people”.
Joan Walsh gave evidence about the Granites, which is near the former Boogardie homestead. She said she used to run tourist tours to the Granites in 2008 and that she and her husband would collect bush tucker for the tourists and cook it in the traditional way. Ms Walsh said it is an area where there are many “signs” in the paintings and she still goes to the area to collect bush medicine.
Frank Walsh Jnr gave evidence that his elders took him camping at the Granites, showed him how to clean out rockholes, catch, clean and cook goannas, kangaroos and other bush tucker. He said he learned how to use bush medicine trees to cure illness when he was there and it is a very special place. He gave evidence that he still visits the area to look after rockholes, picnic and collect food such as goannas.
Gloria Fogarty gave evidence about a little “wave rock” at the Granites, which she said Ollie George knew about too. She explained that her grandparents first took her there and showed her rock art in the caves which they said was done by Badimia ancestors. Ms Fogarty gave evidence about the location of paintings and springs.
Olive Gibson said she takes children on school excursion to the Granites, shows them places and collects and cooks bush tucker. She said it is “good to take them out and let them know what is out there”.
The State submits it appears that at least some, if not all, of the lots in this area were covered by mining leases M5800136, M5800149, M5800181, M5800191 and M5800205 and miscellaneous licence L5800021 at the time of the initial Badimia application. It repeats its submission that these leases and licences were a reservation, proclamation, dedication, condition, permission or authority under s 47B(1)(b)(ii) and to the extent the area is covered by these leases and licences, s 47B has no operation.
The State notes that Boogardie townsite is not on Boogardie Station; rather is a minesite located on the western outskirts of Mount Magnet.
To the extent that Alan Walsh’s evidence implies that he currently visits Boogardie Station, the State says this is of no assistance in respect of “occupation” of the townsite.
It submits the remainder of the claimants’ evidence relates to the Granites, which is some distance away on the other side of Mount Magnet and is of no assistance in establishing “occupation” of the Boogardie townsite.
I generally accept the State’s submissions that there has not been any relevant occupation of Boogardie townsite. While the claimants refer to evidence of occupation in relation to the Granites, this does not necessarily assist in establishing occupation of the Boogardie townsite, which is located some distance away. I also accept the State’s submission that to the extent Alan Walsh’s evidence implies he visits Boogardie Station, this does not assist in establishing occupation of Boogardie townsite.
For these reasons, I am not satisfied on the evidence that the use and activities referred to are sufficient to amount to occupation. In the circumstances, I find that s 47B does not apply.
Lennonville townsite
The claimants submit that s 47B should apply to the Lennonville townsite.
They note that Roderick Hedlam spoke of Lennonville as being “South of Wanarie” and the Walsh family gave extensive evidence about their activities and association with Wanarie Station north of Mount Magnet.
The State contends it appears that at least some, if not all, of the lots in this area were covered by mining leases M5800042, M5800047 and M5800195 and prospecting licences P5801004 and P5800971 at the time of the Badimia application. It repeats its submission that these leases and licences were a reservation, proclamation, dedication, condition, permission or authority under s 47B(1)(b)(ii) and to the extent the area is covered by these leases and licences, s 47B has no operation.
The State submits that Roderick Hedlam’s evidence points to nothing more than the fact that he knows the location of Lennonville and there is no suggestion he “occupied” the area at the relevant time.
It says the Walsh family’s evidence does not provide evidence that they visit Lennonville, only that they have visited locations on Wanarie Station, which is described as north of Lennonville. It notes that Lennonville is not on Wanarie Station. The State submits there is no evidence of when the visits occurred, and in any event, mere visitation is not sufficient to establish occupation.
The State’s submissions regarding the application of s 47B(1)(b) to the prospecting licences must be rejected.
Nonetheless, in any event, I am not satisfied that the claimants’ evidence is sufficient to establish occupation in the relevant sense.
I generally accept the State’s submissions that Roderick Hedlam’s evidence only illustrates that he knew of the location of Lennonville and not necessarily that he occupied this area. Further, while the Walsh family gave evidence about their activities and association with Wanarie Station, which is north of Lennonville, there is insufficient evidence of when the visits occurred and these visits do not appear to relate to Lennonville. In the circumstances, while the activities and association with Wanarie Station are no doubt meaningful to the Walsh family, this evidence is not sufficient to establish occupation of the Lennonville townsite.
On this basis, I find that s 47B does not apply to the area.
CONCLUSION AND ORDERS
For the reasons given above in relation to the connection issues, the application of the claimants in this proceeding should be dismissed.
The Court will hear from the parties as to the terms of the orders that should now be made.
I certify that the preceding one thousand, one hundred and sixty three (1163) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 12 March 2015
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