Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia

[2020] FCA 1510

Federal Court of Australia

Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510

File numbers:

WAD 401 of 2018
WAD 536 of 2018
WAD 65 of 2019

Judgment of:

MORTIMER J

Date of judgment:

22 October 2020

Catchwords:

NATIVE TITLE – separate questions – overlapping claims – onus of proof – whether certain apical ancestors had native title rights and interests in overlap area – whether rights and interests were exclusive of other apical ancestors –  contested genealogies – whether rights and interests acquired through classificatory relationships

Legislation:

Evidence Act 1995 (Cth) s 136

Native Title Act 1993 (Cth) ss 47B, 190B, 190C

Federal Court Rules 2011 (Cth)

Aborigines Act 1905 (WA)

Aboriginal Land Rights (Northern Territory) Act 1976 (NT)

Cases cited:

Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; 270 ALR 564

Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625

Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; 134 FCR 16

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83

Banks v State of Western Australia [2009] FCA 703

Britten v State of Western Australia [2001] FCA 1256

Britten v State of Western Australia (No 2) [2002] FCA 163

Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1

Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213

Dempsey on Behalf of the Bularnu, Waluwarra and Wangkayujuru People v Queensland (No 2) [2014] FCA 528; 317 ALR 432

Dodd v State of South Australia [2012] FCA 519

Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849

Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655; 369 ALR 324

Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929

Gordon on behalf of the Malarngowem Native Title Claim Group Part B v State of Western Australia [2020] FCA 1149

Griffiths v Northern Territory [2006] FCA 903; 164 FCR 300

Griffiths v Northern Territory (No 2) [2006] FCA 1155

Harrington-Smith on behalf of Wongatha People v State of Western Australia (No 9) [2007] FCR 31; 238 ALR 1

Jango v Northern Territory of Australia [2006] FCA 318

Jessell on behalf of the Goorring Native Title Claimants v State of Western Australia [2018] FCA 2047

John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697

Jones v Dunkel [1959] HCA 8; 191 CLR 298

Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 411; 43 FCR 100

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705

Mitchell v MNR [2001] 1 SCR 91

Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752

Narrier v State of Western Australia [2016] FCA 1519

Neowarra v Western Australia [2003] FCA 1402

Ngalpil v Western Australia [2001] FCA 1140

O’Connor v Western Australia [2019] FCA 330; Lovett v Victoria (No 5) [2011] FCA 932

Peterson v State of Western Australia [2013] FCA 518

Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia [2016] FCA 1528

Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia [2017] FCA 1056

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285

Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696

Risk v Northern Territory of Australia [2006] FCA 404

Rubibi Community v Western Australia (No 7) [2006] FCA 459

Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53

Starkey v South Australia [2018] FCAFC 36; 261 FCR 183

State of Western Australia v Ward [2000] FCA 191; 99 FCR 316

Sturt on behalf of the Jaru Native Title Claim Group v State of Western Australia [2018] FCA 1923

Ward on behalf of the Miriuwung and Gajerrong People v Western Australia [1998] FCA 1478; 159 ALR 483

Ward v State of Western Australia [2006] FCA 1848

Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; 376 ALR 204

Wotton v State of Queensland (No 5) [2016] FCA 1457

Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229

Yarmirr v Northern Territory [1998] FCA 771; 82 FCR 533

Division:

General

Registry:

Western Australia

National Practice Area:

Native Title

Number of paragraphs:

1729

Counsel for the Applicant in WAD 401 of 2018:

Tom Keely SC and Anne Sheehan

Solicitor for the Applicant in WAD 401 of 2018:

Kimberley Land Council

Counsel for the Applicant in WAD 536 of 2018:

Tom Keely SC and Anne Sheehan

Solicitor for the Applicant in WAD 536 of 2018:

Kimberley Land Council

Counsel for the Applicant in WAD 65 of 2019:

Greg McIntrye SC and Marina Georgiou

Solicitor for the Applicant in WAD 65 of 2019:

Roe Legal

Solicitor for the State of Western Australia:

Sheila Begg

Solicitor for the Yeeda Pastoral Company Pty Ltd:

Cornerstone Legal

ORDERS

WAD 401 of 2018

BETWEEN:

SHIRLEY DRILL, BERNARD STRETCH, CHERYLENE NOCKETTA, JEREMY MCGINTY, PAMELA ALBERTS, ROBERTA DAYLIGHT, LORRAINE DAYLIGHT, CHRISTINE FARRER, QUEENIE MALGIL

Applicant

AND:

STATE OF WESTERN AUSTRALIA

Respondent

WAD 536 of 2018

BETWEEN:

SHIRLEY DRILL, BERNARD STRETCH, QUEENIE MALGIL, PAMELA ALBERTS, TIMOTHY MOSQUITO, JUDITH BUTTERS, SOPHIA MUNG, BENJAMIN CROSS, ROBERTA DAYLIGHT, LORRAINE DAYLIGHT, CHRISTINE FARRER, CHERYLENE NOCKETTA, DARREN GORE, CORAL GORE-BIRCH, JEREMY MCGINTY
Applicant

AND:

STATE OF WESTERN AUSTRALIA, N E DAHL, YEEDA PASTORAL COMPANY PTY LTD, MONA PHILLIPS, BONNIE EDWARDS, LILY BANKS, TANBA BANKS, SHIRE OF HALLS CREEK, TELSTRA CORPORATION LIMITED

Respondents

WAD 65 of 2019

BETWEEN:

BONNIE EDWARDS, TANBA BANKS, LILY BANKS, DOUGLAS LANNIGAN

Applicant

AND:

STATE OF WESTERN AUSTRALIA, SHIRE OF HALLS CREEK

Respondents

order made by:	MORTIMER J
DATE OF ORDER:	22 October 2020

THE COURT ORDERS THAT:

1.The questions reserved for consideration be answered as follows:

Question 1

Did Fred Jalwarta and/or his siblings; and or Bulugul and/or her siblings, possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of all or any of the other apical ancestors identified in the applicant’s Further Amended Form 1 dated 7 August 2018?

Answer

Yes, in that:

a)   Fred Jalwarta possessed rights and interests under traditional law and custom in the Purnululu Disputed Area;

b)   Fred Jalwarta’s brother Nelson possessed rights and interests under traditional law and custom in the Purnululu Disputed Area;

c)   Bulugul possessed rights and interests under traditional law and custom in the Purnululu Disputed Area;

d)   Bulugul’s sisters Wulmarriya and Flora Mayilba possessed rights and interests under traditional law and custom in the Purnululu Disputed Area;

e)   The apical ancestors referred to in a) – d) did not possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of the apical ancestors listed in f) below;

f)   The Court has found the following apical ancestors possessed rights and interests under traditional law and custom in the Purnululu Disputed Area:

a.   Jimmy Turrukpany;

b.   Girnyan;

c.   Kemintul;

d.   Mungamungagatsdil;

e.   Unnamed mother of Ruby Ngadayi and Jenny; and

f.    Walambal.

Question 2

Did Fred Jalwarta and/or his siblings; and or Bulugul and/or her siblings; and/or the apical ancestor identified as Nelson in the Gajangana Jaru Application possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of all or any of the other apical ancestors identified in the Purnululu Applicant’s Further Amended Form 1 dated 7 August 2018?

Answer

Yes, but only to the extent set out in the answer to Question 1 above.

Question 3

Do:

a. Lily Banks and her descendants; and/or

b. Bonnie Edwards and her descendants,

possess rights and interests under traditional law and custom in the Purnululu Disputed Area through:

i.Paddy Jandiyarri Turner; or

ii.Fred Jalwarta?

Answer

a)   As to Paddy Jandiyarri Turner, yes but only in respect of Bonnie Edwards and her descendants, and only on the basis of an adaptation of traditional law and custom to accommodate children with a non-Aboriginal father.

b)   As to Fred Jalwarta, yes.

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

TABLE OF CONTENTS

Introduction and summary	[1]
Matters to be emphasised	[12]
A note on spellings, words and descriptions used	[15]
The claims being considered for the purpose of the separate questions	[24]
History of the claims	[29]
The two Purnululu applications	[69]
The claim by the Gajangana Jaru applicant	[82]
The difference between the claim areas for each of the applicants	[86]
Adjoining native title determination areas	[90]
The Jaru determination	[91]
The Malarngowem determinations	[101]
Other surrounding determinations	[106]
The Yurriyangem Taam determination	[107]
The Ngarrawanji determinations	[110]
The Miriuwung-Gajerrong determinations	[111]
The Goorring determination	[112]
The relevance of surrounding determinations	[113]
Summary of the parties’ contentions	[114]
On Questions 1 and 2	[114]
The Gajangana Jaru applicant	[114]
The Purnululu applicant	[122]
The State	[126]
On Question 3	[128]
The Gajangana Jaru applicant	[128]
The Purnululu applicant	[132]
The State	[136]
Evidence	[137]
The witnesses called by the Purnululu applicant	[139]
A general finding about the Purnululu witnesses	[148]
Shirley Drill	[159]
Josie Drill	[167]
Cherylene Nocketta	[168]
Ricky Drill	[171]
Kitty Nocketta	[175]
Sophia Mung	[176]
Johnathan Johnson Jnr	[180]
Nancy Nodea	[181]
Warren Drill	[182]
Paul Butters	[183]
Mrs D.M.	[186]
Ivan Turner	[194]
Jeremy McGinty	[196]
Eileen Bray	[200]
Mr B.D.	[202]
Jack Britten	[204]
Judy Turner	[207]
The witnesses called by the Gajangana Jaru applicant	[211]
Bonnie Edwards	[213]
Findings	[219]
Lily Banks	[235]
Findings	[238]
Vincent Edwards	[244]
Findings	[248]
Tanba Banks	[264]
Findings	[272]
The weight to be given to Tanba Banks’ witness statement	[274]
Overall approach to Mrs Banks’ evidence	[282]
Lay evidence on country	[284]
Evidence at Kawarre	[285]
Evidence at Blue Hole Camp and Piccaninny Creek	[294]
Evidence at Purnululu Independent School at Frog Hollow (Wurreranginy)	[301]
Documentary evidence	[302]
Documents relied on by the Purnululu applicant	[303]
Historical records	[303]
Anthropological or ethnographic material relating to the PDA:	[304]
Other evidence	[305]
Documents relied on by the Gajangana Jaru applicant	[306]
Various records	[306]
Source material	[307]
Other evidence	[308]
Rulings	[309]
Recordings and transcripts of Tanba Banks interviewed by Nadia Ronay	[309]
Other documents admitted under rulings	[314]
Documents relied on jointly by the parties	[327]
Aide memoires	[328]
Expert evidence	[329]
The experts’ conference and report	[333]
Findings about the expert evidence	[334]
Dr Redmond’s report and evidence	[336]
Findings	[342]
Dr Corrigan’s report and evidence	[347]
Findings	[352]
Use of early ethnographic, anthropological and other historical material	[357]
Phyllis Kaberry’s genealogies	[379]
Findings	[391]
Statement of agreed facts	[405]
Statement of issues agreed and issues in dispute	[407]
Preliminary issues and findings	[408]
The consequence of the existence of the Purnululu National Park	[411]
The consequences of the protracted history of the dispute	[425]
Findings	[429]
The 1992 split between Jaru and Kija people over the PDA	[434]
Findings	[458]
Language identity	[482]
The significance of the description “Gajangana Jaru” for the Gajangana Jaru claim group	[487]
Findings	[491]
A contest between oral histories and expert evidence?	[492]
Findings	[497]
Differential treatment of Gajangana Jaru witnesses?	[504]
Findings	[510]
The “very limited number” of Gajangana Jaru witnesses	[513]
Findings	[521]
Contended lack of knowledge of the Purnululu applicant witnesses	[531]
Findings	[535]
The importance of the video interview of Judy Turner	[538]
The debate about Thomas Yiliyarri and how much he was able to show, and tell, Bonnie Edwards	[552]
The parties’ submissions and my findings	[560]
Minnie Lidia	[583]
Findings	[612]
Cherylene Nocketta’s evidence	[633]
The competing contention	[638]
Polly Raja	[645]
Findings	[658]
Clancy Patrick	[665]
Findings	[670]
Jalwarta’s Parents	[675]
Findings	[678]
Turner Station	[696]
History of Turner Station and Bungle Bungle Outcamp	[703]
Witness evidence about “Turner” and “Turner Station”	[712]
Lily Banks	[713]
Bonnie Edwards	[715]
Ricky Drill	[718]
Nancy Nodea	[719]
Kitty Nocketta	[720]
Expert evidence	[721]
Findings	[724]
Purnululu Independent School	[744]
Findings	[750]
The relevance of Ngarranggarni/Dreamings which link estates	[752]
Catfish Dreaming	[757]
Garkiny Moon Dreaming story	[759]
Frog and Brolga story	[763]
Eaglehawk Dreaming near Glass Hill	[764]
Onus and standard of proof	[768]
Questions 1 and 2: onus regarding the Purnululu PDA apicals	[777]
Question 3	[785]
Findings	[787]
Questions 1 and 2	[797]
Did Fred Jalwarta possess rights and interests in the PDA?	[798]
Tanba Banks’ evidence about Jalwarta	[806]
Evidence about Tanba Banks and the cave	[817]
Findings	[838]
Dr Redmond’s criticisms of Tanba Banks’ accounts	[851]
Lily Banks’ evidence about Jalwarta	[854]
Findings	[864]
Bonnie Edwards’ evidence about Jalwarta	[895]
Findings	[899]
Purnululu witness evidence about Jalwarta	[901]
Expert evidence about Jalwarta	[922]
Findings	[952]
Jalwarta’s Parents	[975]
Biddy Guridngali (Jalwarta’s wife)	[977]
Topsy Dangai Banks and Paddy Junnga	[981]
Findings	[995]
Conclusion on Jalwarta	[1005]
Jalwarta’s siblings	[1027]
Was Nelson a sibling of Jalwarta?	[1037]
Findings	[1051]
Did Bulugul and her siblings possess rights and interests in the PDA?	[1064]
Jimmy Turrukpany and Durrukman	[1069]
Report of the experts’ conference	[1077]
Dr Corrigan	[1078]
Dr Redmond	[1089]
Professor Williams’ field notes	[1101]
Turner River Station Census Data	[1112]
Dr Redmond’s genealogies from previous reports	[1120]
Lay witnesses	[1141]
Surrounding determinations	[1148]
Findings	[1152]
Two individuals	[1153]
Not brothers	[1156]
The genealogies of Turrukpany and Durrukman	[1161]
Gagai	[1167]
Findings	[1196]
Bungul	[1205]
Findings	[1214]
Wulmarriya	[1220]
Findings	[1230]
Mountain	[1237]
Findings	[1259]
Flora Mayilba	[1268]
Were those rights and interests held to the exclusion of all or any of the other apical ancestors identified in the Purnululu applicant’s further amended Form 1 dated 7 August 2018?	[1275]
Expert evidence	[1282]
Unnamed father of Bulugul and Mayilba	[1288]
Findings	[1292]
Jimmy Turrukpany	[1302]
Findings	[1303]
Girnyan	[1319]
Findings	[1322]
Kemintul	[1334]
Findings	[1340]
Davy Mardangin	[1344]
Findings	[1347]
Mulkparriya and the unnamed father of Paddy Pirtawuny, Dicky Tooltany and Ngangamil	[1352]
The Jarlarlu estate and its range	[1356]
Findings	[1394]
A countryman relationship between Jarlarlu and Purnululu groups?	[1405]
Findings	[1417]
Mungamungagatsdil	[1422]
Findings	[1431]
Unnamed mother of Ruby Ngadayi and Jenny	[1438]
Findings	[1451]
Walambal	[1457]
Findings	[1464]
The remaining Purnululu apical ancestors	[1467]
Findings	[1470]
Conclusion about Purnululu apical ancestors	[1478]
Is the PDA exclusively Jaru and Malngin country?	[1482]
Findings	[1512]
Question 3	[1525]
Do Lily Banks and Bonnie Edwards and their descendants possess rights and interests through Jalwarta in the PDA?	[1526]
Do Lily Banks and Bonnie Edwards and their descendants possess rights and interests through Paddy Jandiyarri Turner?	[1527]
The meaning of classificatory kinship	[1530]
The parties’ arguments	[1532]
Expert evidence about classificatory rights	[1546]
Customary adoption	[1565]
The Western Desert Land Claim report	[1574]
Recognition	[1576]
Opinions on recognition	[1577]
Lay evidence about recognition	[1589]
Findings	[1596]
Classificatory rights as a pathway	[1596]
The “inchoate rights” debate	[1612]
Recognition and the Yilka decision	[1623]
Is recognition a requirement and can the refusal of the present Purnululu claim group to “recognise” Mrs Edwards and Mrs Banks defeat the classificatory pathway?	[1631]
Who comprises the “group” for the purposes of recognition?	[1636]
The lack of acceptance by the Purnululu claim group is not founded in traditional law and custom	[1646]
Contended broader kinship connections through Paddy Jandiyarri Turner to Bulugul	[1659]
Findings	[1671]
The evidence about connections between Bonnie Edwards and Lily Banks, and Paddy Jandiyarri Turner	[1687]
Adaptation of traditional law and custom to accommodate children of a non-Aboriginal parent: Mrs Edwards	[1704]
Findings	[1716]
Concluding remarks	[1728]

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1. The Court has answered three separate questions, stated across three proceedings pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), for the purpose of determining, in substance, who are the right people for country in the East Kimberley in Western Australia comprising the land and waters covered by the Purnululu National Park. I refer to this area as the “Purnululu Disputed Area”, or the “PDA”.

2. The dispute over who are the right people for the PDA has a long history, with disputes under the Native Title Act 1993 (Cth) extending back almost to its inception. Attempts at mediation, over many years, have failed. Therefore, and regrettably, it falls to the Court to make findings on evidence adduced before it, to resolve these disputes.

3. The separate questions have been through several iterations. Their form and content have developed as the parties’ positions were refined after the appointment of legal representation for the Gajangana Jaru applicant, the retention of Dr Brendan Corrigan as an expert for the Gajangana Jaru applicant, and in particular after the conduct of an experts’ conference by Judicial Registrar McGregor. The questions have continued to centre on who are the correct apical ancestors to be identified for the PDA and who has rights and interests under customary law.

1. On 29 March 2019, the Court ordered that the following question be decided separately in the Purnululu #1 and #2 claims:

   Question 1: Did Fred Jalwarta and/or his siblings; and or Bulugul and/or her siblings, possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of all or any of the other apical ancestors identified in the applicant’s Further Amended Form 1 dated 7 August 2018?

2. By an order on the same day, the Court listed a similar separate question in the Gajangana Jaru claim:

   Question 2: Did Fred Jalwarta and/or his siblings; and or Bulugul and/or her siblings; and/or the apical ancestor identified as Nelson in the Gajangana Jaru Application possess rights and interests under traditional law and custom in the Purnululu Disputed Area to the exclusion of all or any of the other apical ancestors identified in the Purnululu Applicant’s Further Amended Form 1 dated 7 August 2018?

3. Although both questions refer to the Purnululu applicant’s Form 1 being “dated” 7 August 2018, it was in fact lodged on that date, and subsequently amended and dated 27 August 2018. That discrepancy does not affect the resolution of the questions but should be noted. On 1 August 2019, the Court ordered that an additional separate question be determined in all three proceedings:

   Question 3: Do:

   a.        Lily Banks and her descendants; and/or

   b.        Bonnie Edwards and her descendants,

   possess rights and interests under traditional law and custom in the Purnululu Disputed Area through:

   i.        Paddy Jandiyarri Turner; or

   ii.        Fred Jalwarta?

4. In summary, I have accepted aspects of the cases presented by each native title applicant, but I have not accepted the whole of the case presented by either of them. It must be borne in mind that the findings I summarise below relate only to the PDA, and not to the entire geographical range of the Purnululu #1 and #2 applications.

5. I have accepted the Gajangana Jaru applicant’s case to the following extent:

   (a)Fred Jalwarta was a person who had rights and interests in the PDA under traditional law and custom;

   (b)Nelson was a brother of Jalwarta;

   (c)The siblings of Bulugul were (at least) Gagai, Flora Mayilba and Wulmarriya. There is not enough evidence to make a finding about Bungul;

   (d)Bulugul, Flora Mayilba and Wulmarriya had rights and interests in the PDA under traditional law and custom;

   (e)Durrukman was the father of Bulugul, Flora Mayilba, Gagai, and Wulmarriya; whether the biological father for all of them, or the father under customary law for some of them, it is not possible to say. Again, the evidence does not permit a positive finding about Bungul;

   (f)Some of the people I have described in these reasons as the “Purnululu PDA apicals” have been shown on the balance of probabilities not to have had rights and interests under traditional law and custom in the PDA, namely:

   (i)Unnamed father of Bulugul and Mayilba (although I accept Durrukman as their father is likely to have had rights);

   (ii)Davy Mardangin;

   (iii)Mulkparriya; and

   (iv)Unnamed father of Paddy Pirtawuny, Dickie Tooltany and Ngangamil;

   (g)The late contention by the Purnululu applicant that all the other Purnululu apical ancestors should be found to have rights and interest in the PDA was not a contention compatible with how the separate question proceeding was conducted and will not be considered.

   (h)Bonnie Edwards and her descendants acquired rights and interests in the PDA through her classificatory relationship with Paddy Jandiyarri Turner, because of an adaptation of customary law to accommodate children with non-Aboriginal fathers; and

   (i)Lily Banks and Bonnie Edwards and their descendants acquired rights and interests in the PDA through their maternal grandfather, Fred Jalwarta.

6. I have accepted the Purnululu applicant’s case to the following extent:

   (a)Jimmy Turrukpany and Durrukman were two different people rather than one person whose name was mistakenly recorded in these two ways at different times, but I have not found it has been proven that they were brothers;

   (b)Jimmy Turrukpany and Kemintul were in a marriage relationship;

   (c)Some of the people described in these reasons as the “Purnululu PDA apicals” have not been shown on the balance of probabilities to have been excluded from having had rights and interests under traditional law and custom in the PDA, namely:

   (i)Jimmy Turrukpany (subject to the outstanding issue of who is descended from him);

   (ii)Girnyan;

   (iii)Kemintul;

   (iv)Mungamungagatsdil;

   (v)Unnamed mother of Ruby Ngadayi and Jenny; and

   (vi)Walambal;

   (d)Mountain was a son of Kemintul and Jimmy Turrukpany, not Durrukman;

   (e)Bulugul and Flora Mayilba had rights and interests under traditional law and custom in the PDA, but their “unnamed father” does not, because I have found them to be part of a sibling set with Gagai and Wulmarriya and have found that the father of all those sisters is Durrukman;

   (f)Gagai did not have rights and interests under traditional law and custom in the PDA;

   (g)The PDA is not exclusively identified as Jaru country, rather it is an area shared between people who now, and for some time in the past, have generally (but not exclusively) been described by reference to the language identities of Kija, Jaru and Malngin; and

   (h)Lily Banks did not acquire rights and interests in the PDA through any classificatory relationship with Paddy Jandiyarri Turner.

7. There are a number of factual issues which remain to be resolved before the native title holding group for the PDA can be completely identified. One significant example is that it is now clear there have been multiple genealogies produced by Dr Redmond for the apical ancestors Jimmy Turrukpany and Durrukman, some versions of which are in evidence and some which are not.

8. Further, and critically, the method by which the Court’s findings can be implemented into a determination of native title will need to be addressed.

   Matters to be emphasised

9. Determining the answers to the separate question has involved the parties, and now the Court, in a painstaking reconstruction of historical materials and historical accounts, all framed within a culture which operates on an oral tradition, and at a time when many knowledgeable elders have sadly passed away. It was no easy task for the parties, their experts and lay witnesses, nor for the Court. Although throughout these reasons I make findings accepting some evidence, and argument, and rejecting others, I accept that all concerned have done their best to assist the Court in this reconstruction, for which the Court is grateful.

10. As I explain below, the Court’s answers to the separate questions depend on reaching a view about what, on the evidence before it, are more likely than not to be the facts. That is what the civil standard “balance of probabilities” means. The Court does not decide what the “truth” is in any absolute sense. The Court is not in that sense the arbiter of history. The Court decides whether the party who must prove the necessary facts has shown the facts it contends for are more likely than not to have existed. In circumstances which involve the level of historical reconstruction that these separate questions do, that is not only all that is required; it is all that can reasonably be expected. This exercise is carried out on the basis of the evidence adduced, and inferences which can reasonably be drawn from that evidence. The Court must assess what, reasonably and rationally, can be made of the evidence before it. It does so from a more objective perspective than that brought by the parties, and for that reason, it may well see some evidence as persuasive although one party does not. Conversely, it may see other evidence as unpersuasive, although a party, its expert or the claim group members find that evidence persuasive. Even where the task is challenging, and the evidence pulls in different directions (as it does in many of the factual issues to be resolved in these separate questions), the Court’s function is to make a decision, and to decide if the party with the onus of proof has discharged it.

11. I emphasise that I have deliberately refrained from making any comprehensive findings about the areas within the PDA for which present descendants might be said to have primary responsibility. As these reasons will disclose, there are parts of the PDA which are associated with a high proportion of the apical ancestors identified by the parties, and there are large tracts of the PDA for which there is little or no evidence that any of the apical ancestors identified by the parties were connected to the land by traditional law and custom. These are matters beyond the separate questions, but may need to be resolved before any determination of native title can be made.

    A note on spellings, words and descriptions used

12. In these reasons, I have adopted the practice of referring to all witnesses by their full name, although from time to time depending on context I will also refer to them by “Mr” and “Mrs” or “Miss” and their surnames, having checked with the parties about the witnesses’ preferences in this regard. For people who are referred to in the evidence but were not witnesses, especially people from previous generations, I have generally used the person’s first and second name on each occasion; for example, Minnie Lidia. With some of the ancestors, I have adopted a single name if that is how they have customarily been identified. For Fred Jalwarta, I have either used his full name or just “Jalwarta”. I have used the spelling “Jalwarta” as that is what appears in the separate question. There are other witnesses whose names I have shortened for ease of reference – for example, Topsy Dangai Banks I will often refer to as “Topsy Dangai”.

13. The evidence was naturally full of names of people, places, concepts, groups and words in language, to which a variety of spellings were given. In these reasons I have attempted to use the spelling used by a witness, or a source, if I am quoting or referring to that source. Otherwise, when referring to people, I have used the spellings used by the parties in their submissions if a common spelling is used, and if not I have tended to use the spelling used by Dr Redmond (eg Turrukpany and Durrukman), which is a reflection of my acceptance of his long and close involvement in a number of native title claims in the East Kimberley, and the content of his reports in terms of their focus, where appropriate, on how words should be spelled. Where there are differences even within Dr Redmond’s work, I have made a choice which I consider will make the reasons as accessible as possible, in terms of the reader understanding the person I am referring to. An example is Liddy/Edie Jalpart/Jarrabadjirl, to whom I refer as Liddy/Edie. I mean no disrespect at all to any person by the choices I have made.

14. Very sadly, there are two lay witnesses who passed away after making statements adduced in this proceeding. One of them also gave oral evidence. I have referred to them as Mrs D.M. and Mr B.D. Otherwise, the judgment retains the references to people as the evidence and argument of the parties referred to them, which did not involve any redaction or abbreviation. There were some communications from the Court in the weeks prior to judgment being delivered which, regretfully, may have encouraged the parties to suggest a tremendously wide level of redaction, or abbreviation, to the names of almost all Aboriginal people who featured in the evidence and who had passed away. The parties’ requests could not be accommodated because of the size of the judgment and the number of consequential changes, at a late stage, which would have been necessary. The scale of the request was unexpected and the Court apologises that it could not be accommodated. However, what appears in these reasons (with the exception of Mr B.D. and Mrs D.M.) is consistent with the parties’ own use of names in their evidence and argument, all of which was presented in open Court.

15. While I recognise that there are strong views amongst the Gajangana Jaru claimants that the PDA should not be called “Purnululu”, that is now the officially recognised name for the national park and therefore I have used it. When discussing evidence where witnesses or earlier sources use the term “Bungle Bungles”, I have used that term.

16. In terms of place names, where there are different spellings and a choice needed to be made, I have tended to use the spelling on the joint agreed site map, which was the principal map used in the proceedings.

17. Anthropologists and other experts are referred to by the title “Dr” where they are known to have been conferred with a PhD, regardless of whether it was conferred before or after creating the materials that are in evidence (eg Phyllis Kaberry’s PhD was conferred after the 1935 genealogies).

18. Phyllis Kaberry’s handwritten genealogies, five of which are in evidence, were relied on by Dr Redmond in his report and formed the basis for a number of his opinions. The parties also put her work to various uses in their final submissions. Her handwriting is extremely difficult to read and, at the request of the Court, the parties submitted an agreed typed version of these genealogies, which also note any disagreements between the parties about transcription. The agreed spellings of her genealogies did not always accord with Dr Redmond’s interpretation of her handwriting in his report; however, Dr Redmond was not challenged about this in cross-examination. Dr Redmond himself gave an explanation for some of the different spellings at p 15 of his report, referring to the earlier work of Dr Patrick McConvell:

    While Dr McConvell’s recommended orthography has been followed as far as is practicable throughout this report, a wide variation in spellings has been employed since research commenced in this region in the late 1920s. The orthography used by previous authors have been retained in order to reserve the integrity of those original sources …

19. As I also noted in Dempsey on Behalf of the Bularnu, Waluwarra and Wangkayujuru People v Queensland (No 2) [2014] FCA 528; 317 ALR 432 at [16], lay witnesses (and indeed people whose accounts are recorded in earlier sources) frequently refer to areas by station names. The appropriate way to interpret how people used references to the pastoral station known as Turner Station features in this case, and I make some particular findings about that below. Otherwise, I recognise that for Aboriginal people who had to find ways to orient themselves in the post-settlement environment, including the role played by stations where Aboriginal people were forced to live and work, parts of the landscape (but not all of it) have become conceptualised by reference to station names. It is difficult to explore what is meant by such references and it appeared to be common ground that any such references were not to be understood as necessarily following the boundaries of station, but sometimes they may broadly have this meaning. Sometimes the references to a station may be a more general indicator of areas, and sometimes the reference may predominantly be to the area where a station homestead was located. When describing evidence, or accounts from historical sources, that refer to stations, I do so taking these matters in to account.

20. The transcript of the on-country evidence has been carefully prepared in terms of the use and spelling of the large number of group and language names used in this proceeding, and the Court is grateful to Transcripts Australia for the care taken in this exercise. The parties also agreed on any material corrections to the transcript, for which the Court is also grateful. Where there are occasional words that might appear to still be misspelled in the transcript, I have generally taken the correct spelling where it is obvious from other evidence. On rare occasions when this is not the case, I have retained the spelling as it appears in the transcript.

    The claims being considered for the purpose of the separate questions

21. In relation to claims of native title, the PDA has been the subject of contest since at least 1994.

22. It will be necessary to describe the history of claims in the PDA, but in terms of the current proceedings in which the separate questions have been stated, there are two applications for native title made on behalf of a group whose members predominately but not entirely identify as Kija people, Kija (sometimes spelt Gija) being a language identifier. All parties are agreed that language identification is not the appropriate basis for determining the right people for the county in the claim area(s), or in the PDA. Nevertheless, as these reasons will reveal, language identification has accompanied the rift over interests in the PDA, as it continues to do in other native title situations in the East Kimberley.

23. One of these two applications – the principal one – was lodged in 1994, the second more recently. The applicant in this claim calls itself the “Purnululu applicant”. The present lead member of the applicant is Shirley Drill. Mrs Drill was also a key witness.

24. On the other side of the debate is a group who identify themselves as Jaru speaking, and have called their application the Gajangana Jaru application. The lead applicant on this claim is Bonnie Edwards, who was a key witness for this claim, along with her elder sisters Lily Banks and Tanba Banks.

25. I have elected to maintain the descriptions the parties gave to each applicant – “the Purnululu applicant” and the “Gajangana Jaru applicant”. This is for consistency and does not reflect any view about the merits of the claims.

    History of the claims

26. The Purnululu applicant lodged native title determination application WAD 536 of 2018 (formerly WAG 6007 of 1998) with the National Native Title Tribunal on 21 December 1994 and the claim was accepted for registration on 15 October 1999 (Purnululu #1 application). A small number of Aboriginal respondent parties were joined as part of the notification process between 3 April and 3 July 1995.

27. In the first formal indication of the dispute over the PDA, Tanba Banks lodged native title determination application WAG 6199 of 1998 with the NNTT on 16 September 1997 on behalf of “Banks and related families” (Jiddngarri claim). The Jiddngarri claim overlapped to a significant degree with the land the subject of the Purnululu #1 claim, but was not wholly coincident with it. It extended to areas further to the north, west and south of the PDA and included the area now determined to be held by the Jaru People: see the Court’s determination in Sturt on behalf of the Jaru Native Title Claim Group v State of Western Australia [2018] FCA 1923 (Jaru determination). The Jiddngarri claim form stated that the group represented by Tanba Banks claimed through her “father, grandfather and grandmother”. The parties accepted this was a reference to, respectively, Paddy Jandiyarri Turner, and his parents, Bulugul and Barmarlngana (or as Mrs Edwards’ evidence was, Gurunbu/Gurunbul). A point which has later relevance is that Mrs Edwards agreed in cross-examination that this was not a reference which identified Fred Jalwarta. As Gray J noted in Britten v State of Western Australia [2001] FCA 1256 at [7], the application was signed by a cross, rather than a signature, and his Honour inferred that Tanba Banks could not read or write.

28. On 16 June 1999, French J (as his Honour then was) ordered that the Purnululu application, together with the Jiddngarri application, be referred to the NNTT for mediation. Mediation was to initially address whether there was a reasonable prospect of resolution between the overlapping claimants.

29. On 15 September 1999, the Purnululu applicant filed an amended application in the Purnululu #1 claim. Amongst the amendments was a change to the claim group description to specifically exclude Tanba Banks from the Purnululu claim group. The application stated

    If it is taken by this description of the claim group includes Tanba Banks, then by this paragraph it should be understood that she is excluded.

1. The reason for this change is not clear on the evidence, although there are some suggestions in the Purnululu applicant’s final submissions about the reasons. The timing of this amendment, with Tanba Banks as its target, a few years after the Jiddngarri claim was filed, suggests the amendment was a manifestation of the emerging divisions between the two groups and which have given rise to this proceeding. As I explain below, the divisions had manifested themselves clearly in 1992, although that is not to suggest there were no tensions before this time. The express exclusion of a person who was by that time an elder, and who it is now acknowledged was and always has been a person with rights and interests in the PDA under traditional law and custom, reflected the levels of antagonism which had developed by 1999.

2. In 2000, the Court’s records indicate there was a prospect of the Purnululu and Jiddngarri applications proceeding to trial, and draft programming orders were discussed. It appears little progress in the NNTT-convened mediation had been made, including due to uncertainty around the identity of the native title holders on whose behalf the Jiddngarri application had been brought.

3. In 2001, the Purnululu applicant sought to strike out the Jiddngarri claim by way of notice of motion filed on 2 February 2001. At this time, Jack Britten remained as the original lead member of applicant on the Purnululu #1 claim, and Shirley Drill was the second named member of the applicant. Mr Britten, a Kija man who spoke for Jarlarlu country, was the maternal grandson of Paddy Pirtawuny, whose unnamed father is one of the apical ancestors identified on the Purnululu claims. Mr Britten is related through his mother to several other claim group members who also gave evidence in proceeding, including Paul Butters, Sophia Mung, Mrs D.M., Eileen Bray and Johnathan Johnson Jnr.

4. In Britten, Gray J made a number of orders directed towards establishing the identity of persons claimed by Tanba Banks to hold native title rights and interests in the area relating to the Jiddngarri claim. His Honour noted that Mrs Banks appeared to have no legal assistance in preparing the Jiddngarri claim and the descriptions in the Jiddngarri claim made it difficult, if not impossible, to identify the persons who were claimed to be native title holders. It is also apparent from his Honour’s reasons (for example at [11]) that Bonnie Edwards was assisting Tanba Banks in this claim. At that stage, Mrs Edwards identified herself to the Court as communicating “on behalf of” the Mindi Mindi Aboriginal Corporation (MMAC). The role of that corporation in the PDA is a matter to which I return later in these reasons.

5. Dr Fiona Powell was appointed as a court expert for the purpose of the “identification, name or description of the persons claimed by Tanba Banks to be the holders of native title” in relation to the land covered by the Jiddngarri claim. His Honour found at [16] that it was

   desirable to have separate identification of those who are claimed to be native title holders in respect of the overlapping area from those (if any) who are claimed to hold native title rights and interests in respect of the remainder of the land the subject of the Jiddngarri application.

6. The Court emphasised at [22]:

   I do not intend that it should be any part of Dr Powell’s function to express a view as to the merits of the claim that any person holds native title rights and interests with respect to any land.

7. Dr Powell reported to the Court on 9 November 2001. Her report identified a little over 50 persons that comprised the group claimed by Tanba Banks to be native title holders in the Jiddngarri claim with respect to the land which overlapped the Purnululu #1 claim.

8. On 1 March 2002, Gray J ordered that those persons identified by Dr Powell become respondent parties to the Purnululu #1 claim, adjourned the Jiddngarri claim and dismissed the strike-out application: Britten v State of Western Australia (No 2) [2002] FCA 163. At [8]-[9], Gray J explained the purposes of the Court’s orders in this way:

   The addition of those who are claimed to be native title holders of the overlapping area in the Jiddngarri application as parties to the Purnululu application cannot and will not pre-empt the determination of any issue. In particular, it will not amount to the expression of any opinion as to who are the native title holders, if any, in respect of the overlapping area. It will enable a proper determination to be made, because all competing interests will be represented in the one proceeding in relation to the overlapping area.

   The purpose of adjourning the Jiddngarri application to a date to be fixed is simply to allow the issue of any determination of native title in the overlapping area to be dealt with in a single proceeding, in accordance with ss 67 and 68 of the Act. Because the Jiddngarri application also overlaps with another application for determination of native title, part of it will have to be dealt with in conjunction with that other application. It is therefore more convenient to adjourn the Jiddngarri application than it would be to adjourn the Purnululu application.

9. It is sobering to reflect that although his Honour identified the need in 2002 for a “single proceeding” to resolve the disputes between the groups, it was not until 16 years later that this occurred, through the separate question process.

10. As Gray J noted (at [13]), the Kimberley Land Council, acting for the Purnululu applicant, contended that the persons joined as respondents and identified by Dr Powell were also members of the Purnululu claim group. At [14], the Court recognised this as an issue but maintained this was the appropriate way to proceed in the short term.

11. It remains the case in the applications which are the subject of the separate questions that there is a degree of overlap in terms of membership of the respective claim groups. That fact reflects the family structures at work, the mixing and intermarriage of Jaru-identifying and Kija-identifying people in and around the area of the PDA, and the taking of rights through descent.

12. On 29 November 2002, Gray J made the following order in the Purnululu #1 claim:

    If any of the persons added as respondents in the proceeding by the order made on 1 March 2002 does not file a notice of appearance in accordance with Order 9 rule 4 of the Federal Court Rules, or otherwise provide to the Court an address for service in accordance with Order 7 rule 6 of the Federal Court Rules, service of any document in the proceeding be effected on that respondent by sending a copy of the document by prepaid post addressed to the person:

    care of Bonnie Edwards at Mindi Mindi Corporation, [address redacted]

13. No notices of appearance were filed in relation to the above order. As a result, Mrs Edwards’ address became the address for service for all of these respondents. On 26 June 2013, respondent party Mona Phillips filed a notice of change of address for service in the proceeding, so that her address for service was no longer through Mrs Edwards, and on 10 July 2013, 12 respondents – Sophia Stretch, Robert Stretch, Lorraine Stretch, Rasheed Malgil, Josie Farrer, Felicity Smith, Donna Malgil, Queenie Malgil, Rosie Stretch, Preston Malgil, Kay Malgil, and Evelyn Malgil – filed notices of change of address for service in the proceeding, so their addresses for service were no longer through Mrs Edwards.

14. As far as can be ascertained, there was then a period of some seven years where no significant steps were taken in either the Jiddngarri application or the Purnululu application. Between 2003 and 2009, the matters remained in mediation before the NNTT. Regional directions hearings were convened by French J, followed by Gilmour J, approximately twice a year with the NNTT requested to provide mediation updates ahead of each directions hearing.

15. Mediation reports during this period refer to ongoing conflict over traditional ownership of the Purnululu area, and the lack of anthropological work, for which resources remained unavailable. Further, resources were being devoted towards negotiations between the Purnululu Aboriginal Corporation and the State of Western Australia in relation to world heritage listing for the Purnululu National Park and the creation of a joint management arrangement. The absence of a comprehensive anthropological report was identified as detrimental to the prospect of mediation, as it was considered fundamental to resolving key matters of dispute between the two sets of claimants. However, the Court was informed that the funds necessary for such a report to be completed were not expected to become available for a number of years.

16. After a general call over of proceedings in the East Kimberley, and the Court having sought submissions from the parties, with none being filed, on 15 June 2009 the Court dismissed the Jiddngarri claim of its own motion under s 190F(6) of the Native Title Act: Banks v State of Western Australia [2009] FCA 703. At [13], Gilmour J noted that the applicant had not moved, or indicated any move, to amend the application following its failure twice to pass the registration test, and there did not appear to be any reason why the application should not be dismissed.

17. As a result of the joinder of all those covered by the Jiddngarri claim as respondents to the Purnululu #1 claim, however, the dispute remained before the Court in the form of a contest between the Purnululu applicant and the Aboriginal respondent parties.

18. The Purnululu #1 claim was first referred to a Registrar for case management on 14 December 2009 by Gilmour J; however, the matter then continued in mediation with the NNTT until 2012.

19. On 29 June 2012, Barker J ordered that a case management conference be convened for the purpose of ascertaining:

    a.        the issues remaining to be resolved;

    b.        the processes and timeframes for resolving those issues; and

    c.what, if any, further orders in relation to mediation might be considered by the Court.

20. On 2 August 2012, Barker J ordered that mediation in the NNTT cease and the matter be referred to a Deputy District Registrar for a case management conference, with a further directions hearing to be held in November 2012. At a case management hearing before the Registrar on 11 October 2012, it was not clear whether any connection material had been completed or commenced.

21. On 16 November 2012, Barker J ordered that the matter continue in case management. There were then a number of case management conferences before different Registrars. Ongoing delays to take steps to progress the claim were explained at various points as due to ongoing “intra-indigenous issues” and funding shortages.

22. In 2017 the KLC indicated that there was a further delay to the provision of connection materials for the Purnululu #1 claim, as the draft connection material prepared by one consultant was considered insufficient and Dr Tony Redmond was engaged to do additional field work and prepare a more suitable report.

23. Between January and July 2018, the case managing Registrar undertook to locate the contact information for the Aboriginal respondent parties for whom the Court did not have accurate contact information and to obtain an understanding of which of those respondents wished to remain as parties to the claim and participate in the future conduct of the proceeding. As part of this process attempts were made to reach all of those respondent parties through various means including: through Mrs Edwards, through the KLC (including placing a public notice on the KLC website and Facebook page), through a range of East Kimberley community organisations, through a public notice aired on a local radio station, through the channels available to the Shire of Halls Creek, through the Northern Land Council, as well as direct attempts to contact each respondent based on any available information about their contact details or whereabouts.

24. The Registrar advised the Court, by way of a report filed on 30 July 2018, that a number of respondents were since deceased and that despite best efforts, many of the remaining respondents were unable to be contacted. Others provided an updated address for service and some advised via telephone that they no longer wished to remain as respondents; however, attempts at further communication with those respondents were unsuccessful. Mrs Edwards advised that she should remain as the contact person for some, including the Lannigan family, while others “should be listed on other claims”. The only other written correspondence received from these respondents was from Mona Phillips who stated, by way of a statutory declaration dated 20 July 2018 and received by the Court on 27 July 2018, that she gave her “full approval for Bonnie Edwards to represent, speak and/or negotiate on behalf of me and my descendants in any Native Title claim for our traditional lands”.

25. On 6 August 2018, the Court made an order that Bonnie Edwards, Lily Banks, Tanba Banks and Mona Phillips were to remain as respondents and an order removing those 17 respondents who were understood to be deceased. The Court also made orders requiring that the remaining Aboriginal respondents indicate to the Court an address for service, or provide written correspondence stating their intention to remain respondents, within four weeks of service of the orders, with a failure to comply causing their removal as a party to the proceeding. Once this process took effect, only Tanba Banks, Lily Banks, Bonnie Edwards and Mona Phillips remained as Aboriginal respondents to the Purnululu #1 application.

26. The Purnululu #1 application was amended again on 7 August 2018. The claim group description was amended to remove the express exclusion of Tanba Banks and to add “the unnamed father of Bulugul and Mayilba” as an additional apical ancestor.

27. Mona Phillips is a descendant of Raymond Turner, a son of Bulugul, and therefore is within the Purnululu #1 claim group description as a descendant of the unnamed father of Bulugul and Flora Mayilba. She remains an Aboriginal respondent party to the Purnululu #1 claim, having elected to do so through the case management process which saw the remainder of the Aboriginal respondents removed as respondents. The parties disagreed about what position could be attributed to Mrs Phillips in relation to the competing claims. While Mrs Phillips was present for part of the hearing of the separate questions, she was not called to give evidence by either applicant. There is no admissible evidence about Mrs Phillips’ reasons for wishing to remain a respondent to the Purnululu #1 application, nor any admissible evidence about who she “supports”. The appropriate course in these circumstances is for no findings to be made, one way or another, about Mrs Phillips’ support, or lack of support, for either the Purnululu or Gajangana Jaru claims. Having not participated in the proceeding, but remaining a respondent, she will be bound by the outcome of the separate question hearing.

28. Following a court referral for legal assistance, Marina Georgiou of counsel commenced acting on a pro bono basis for Mrs Edwards (as a respondent) from April to September 2018. The Court records its gratitude to Ms Georgiou for the considerable assistance she provided to the Court (and no doubt to Mrs Edwards and those who supported her) in this early period. Mrs Edwards subsequently received funding for legal representation from the KLC to appear as a respondent to the Purnululu #1 application, and later received further funding for the Gajangana Jaru native title application. The Court acknowledges the appropriate and constructive role taken by the KLC to the recent developments in the dispute over the PDA. The funding of legal representation for the remaining Purnululu respondents and then for the Gajangana Jaru applicant has advanced the interests of the administration of justice, and enabled a full assessment in this separate question proceeding, of the core matters in dispute.

29. On 6 August 2018, and while Bonnie Edwards, Lily Banks, Tanba Banks and Mona Phillips remained as respondents to the Purnululu #1 application, the State filed a first draft minute of consent determination of native title for the Purnululu #1 application. This draft determination provided for a determination of native title in favour of the Purnululu applicant in those parts of the Purnululu #1 claim area where native title is capable of being recognised.

30. The Purnululu applicant suggested various refinements to the draft determination. Mrs Edwards opposed the draft determination, primarily on the basis that the proposed native title holders “do not, as a group or community, hold rights and interests” in what she then described as the “Karjanama Jaru Purnululu Overlap Area”.

31. A second application, proceeding WAD 401 of 2018, was filed by the Purnululu applicant on 6 September 2018 (Purnululu #2 application). This application is over three areas of unallocated Crown land within the Purnululu #1 application area, and seeks the benefit of s 47B of the Native Title Act. The Purnululu #2 application was consolidated with the Purnululu #1 application by order of the Court on 9 November 2018. Initially, it appeared that Tanba Banks, Lily Banks and Bonnie Edwards may have sought to become respondents to the Purnululu #2 application on the basis that they would assert rights and interests in that claim area. However, it subsequently became clear that, insofar as the Gajangana Jaru application comprises, as the Court understands it, the whole of the claim made on behalf of the Gajangana Jaru applicant, the Purnululu #2 application area is not the subject of any dispute, or overlapping claim, formally or informally.

32. On 9 November 2018, following a case management hearing with the parties, the Court made the following orders in the Purnululu and Purnululu #2 proceedings:

    4.Any overlapping native title determination application under s 61 of the Native Title Act 1993 (Cth) concerning the area claimed in applications WAD6007/1998 and WAD401/2018 is to be filed by 31 January 2019.

    5.In the event that no application is filed in accordance with order 4, no application under s 61 of the Native Title Act 1993 (Cth) concerning the area claimed in applications WAD6007/1998 and WAD401/2018 will be accepted for filing until the hearing and determination of the Separate Question.

33. The Gajangana Jaru applicant filed a claim on 7 February 2019 (WAD 65/2019) (Gajangana Jaru application). This claim relates to the land and waters of the PDA only. The Gajangana Jaru applicant submits that the Jiddngarri claim group, the original Aboriginal respondent parties to the Purnululu #1 application, and the Gajangana Jaru claim group are substantially the same group of people.

34. In closing oral submissions, counsel for the Purnululu applicant submitted that the separate questions were “designed merely to resolve matters that were a roadblock to the making of a consent determination”. The Gajangana Jaru applicant submitted this characterisation should be rejected in light of the above history of the claims. In substance it contends the claims’ history in relation to the PDA demonstrates there has been a longstanding debate about who are the right people for the PDA. I accept that submission. As these reasons will explain, the evidence about connection to the PDA at effective sovereignty is of variable probative value. While it is correct that the State has accepted that native title is likely to exist (subject to extinguishment) over the PDA, and in that sense has been content to work towards a consent determination, it has also consistently and properly maintained it is concerned to ensure the right people for the PDA are identified. On the basis of the material provided to it, it had previously accepted the right people were the members of the Purnululu claim group, and it has maintained that position at the conclusion of the separate question trial process.

1. However, in my opinion, what this separate question hearing has demonstrated is that there is a real question about which apical ancestors can be established by evidence to have been more likely than not to hold rights and interests under traditional law and custom in the PDA at effective sovereignty.

2. The three central protagonists in the competing application – Bonnie Edwards, Lily Banks and Tanba Banks – did not have ongoing legal representation until 2018, and it is that assistance which has been responsible for enabling them to formulate their claim with the detail required by the Native Title Act. Their application is not a “roadblock”: it is a seriously advanced claim, which deserves proper consideration. The persuasiveness of the Purnululu applicant’s case is not assisted by such a characterisation.

   The two Purnululu applications

3. In evidence are three versions of the Form 1 for the Purnululu #1 application lodged by the Purnululu applicant. The original Form 1 was filed on 21 December 1994. The members of the applicant were listed as Raymond Wallaby, Jack Britten, Queenie McKenzie and Hector Chunda. Each of these original members of the Purnululu applicant is now deceased.

4. An amended Form 1 was then filed on 23 September 1999. The members of the applicant were changed to Jack Britten, Shirley Drill, Phyllis Gallagher, Bernard Stretch and Hector Chunda.

5. A further amended Form 1 was filed on 7 August 2018, pursuant to leave granted by the Court in orders dated 6 August 2018. This is the form of the application which is to be treated as before the Court for the purposes of the resolution of the separate questions. The Court’s orders also upheld a s 66B application filed by the Purnululu applicant to replace the then applicant with the following individuals:

   (a)Shirley Drill;

   (b)Bernard Stretch;

   (c)Timothy Mosquito;

   (d)Judith Butters;

   (e)Sophia Mung;

   (f)Benjamin Cross;

   (g)Roberta Daylight;

   (h)Lorraine Daylight;

   (i)Christine Farrer;

   (j)Queenie Malgil;

   (k)Cherylene Nocketta;

   (l)Pamela Alberts;

   (m)Darren Gore;

   (n)Coral Gore-Birch; and

   (o)Jeremy McGinty.

6. Paragraph 2 of Sch A of the further amended Form 1 lists the following apical ancestors for the Purnululu claim group:

   (a)Girnyan;

   (b)Jingkupal;

   (c)Unnamed father of Paddy Pirtawuny, Dickie Tooltany and Ngangamil;

   (d)Wulawalyan;

   (e)Kemintal;

   (f)Jimmy Turrukpany;

   (g)Davey Mardangin;

   (h)Nyitparriya;

   (i)Dina Ngowaya;

   (j)Unnamed father of Bulugal and Mayilba;

   (k)Unnamed mother of Junbaynngulu;

   (l)Jarnpayjirl;

   (m)Bilal;

   (n)Mungamungagatsdil;

   (o)Mulkparriya; and

   (p)Nyalwalapan.

7. As the Gajangana Jaru applicant submitted, there is some overlap between the apical ancestors identified in the Gajangana Jaru application and those in the Purnululu application.

8. The Purnululu applicant’s submissions focused on a subset of these apical ancestors contended to be “specifically connected to country” within the PDA. That subset is:

   (a)Girnyan;

   (b)Kemintul;

   (c)Jimmy Turrukpany;

   (d)Unnamed father of Bulugul and Mayilba;

   (e)Mungamungagatsdil;

   (f)Unnamed father of Paddy Pirtawuny, Dicky Tooltany and Nganggannil;

   (g)Mulkparriya; and

   (h)Davy Madarning/Mardangin.

9. Together I describe these people in these reasons as the “Purnululu PDA apicals”.

10. Further, the Purnululu applicant identified for the first time during the separate question hearing two additional apicals said to have rights and interests in the PDA, based on Dr Redmond’s opinion that he would add them after having heard and seen the evidence in the hearing of the separate question. Those ancestors are Walambal and the unnamed mother of Ruby Ngadayi and Jenny.

11. The native title claim group for the Purnululu #1 application is defined as those Aboriginal people who:

    (a)are descended from one or more of the people listed in para 2 of Sch A (being the apical ancestors listed in [72] above); or

    (b)are recognised by the descendants of the people listed in para 2 of Sch A as having rights and interests in the claim area under traditional law and custom.

12. The Purnululu #2 application was lodged on 6 September 2018. The named applicants in the Form 1 application are:

    (a)Shirley Drill;

    (b)Roberta Daylight;

    (c)Bernard Stretch;

    (d)Lorraine Daylight;

    (e)Cherylene Nocketta;

    (f)Christine Farrer;

    (g)Jeremy McGinty;

    (h)Queenie Malgil; and

    (i)Pamela Alberts.

13. The apical ancestors of the claim group in the Purnululu #2 application are the same as those ancestors referred to in the Purnululu #1 application. The native title claim group in the Purnululu #2 application is defined by reference to the same two pathways as the members of the Purnululu claim group: being through descent from one or more of the named apical ancestors, or recognition by those descendants.

14. The second pathway identified in both Purnululu applications – “recognition” – assumes some significance in the resolution of the separate questions, as I explain below.

15. The Purnululu #2 application is not registered on the Register of Native Title Claims. On 28 September 2018, a delegate of the Native Title Registrar found that the application did not satisfy all of the conditions in s 190B and s 190C of the Native Title Act and therefore did not accept the claim for registration. Specifically, the delegate found that the application did not meet the requirements of ss 190B(5), (6), (7), and 190C(3).

    The claim by the Gajangana Jaru applicant

16. The Gajangana Jaru application was lodged on 5 February 2019. The Form 1 application lists the following four applicants:

    (a)Bonnie Edwards;

    (b)Tanba Banks;

    (c)Lily Banks; and

    (d)Douglas Lannigan.

17. The claim group is described as those persons who are descended (including by way of adoption) from the following apical ancestors:

    (a)Bulugul;

    (b)Gagai;

    (c)Mountain;

    (d)Wulmarriya;

    (e)Flora Mayilba;

    (f)Bungul;

    (g)Jalwarta; and

    (h)Nelson.

18. The Gajangana Jaru applicant contends that these apicals comprise two sets of siblings: Bulugul and her siblings Gagai, Mountain, Wulmarriya, Mayilba and Bungul; and Jalwarta and his sibling Nelson.

19. The Gajangana Jaru application is not registered on the Register of Native Title Claims. On 8 April 2019, a delegate of the Native Title Registrar found that the Gajangana Jaru application did not meet the requirements of ss 190B(2), (5)(b) and (c), (6), (7), and 190C(3) of the Native Title Act and therefore did not accept the claim for registration.

    The difference between the claim areas for each of the applicants

20. The Gajangana Jaru application covers approximately 2,438 km² and wholly covers the land and waters of the PDA. Its boundaries are wholly encompassed within the boundaries of the Purnululu #1 application. The PDA’s boundaries are generally consistent with the boundaries of the Purnululu National Park

21. The Purnululu #1 application covers a larger area than the Gajangana Jaru claim, approximately 4,573 km². It encompasses the whole of the PDA and areas further to the north, north-west, west and south-west. As I have noted, the Purnululu #2 application relates to three areas of unallocated Crown land outside the PDA.

22. The following map, produced by the National Native Title Tribunal, depicts the boundaries of the three claims and the extent of their overlap. The green line marks the boundary of the Purnululu #1 application, the pink shading marks the Purnululu #2 application and the Gajangana Jaru application is shaded yellow; the yellow shading also marks out the PDA.

23. The answers to the separate questions and these reasons only deal with the PDA.

    Adjoining native title determination areas

24. Much of the region surrounding the PDA is covered by native title determinations, all by consent, associated with Jaru or Kija languages or a mix of Kija and other languages and dialects. There is also one area of land to the south-west of the PDA that has yet to be determined but is subject to the Koongie-Elvire application (WAD 45 of 2019), which was accepted for registration on 15 November 1999.

    The Jaru determination

25. The Jaru native title application area initially ran along the eastern boundary of the PDA along the Ord River and east until the Northern Territory border. The area immediately adjoining the PDA south of the Ord River, which forms part of the Ord River Regeneration Reserve managed by the Western Australian government (identified as “Reserve 28538”), was ultimately excluded from the Jaru determination by agreement of the parties and with no further claim by the Jaru People to be made over this area: see Sturt on behalf of the Jaru Claim Group at [7]. This reserve, along with the Purnululu National Park, formed part of the land resumed by the government in 1967 as part of the regeneration plan for the Ord River Catchment Area, which, as I explain below, included the resumption of the Ord River and Turner pastoral stations.

26. In Sturt, native title was determined to be held by “the Jaru People”. The native title holders are described in Sch 6(1) as those Aboriginal people who:

    (a)are related through filiation (meaning a series of parent-child relationships, including by adoption) to one of the Apical Ancestors who held rights and interests in one of the local estate countries comprising the Determination Area; or

    (b)are affiliated to an Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or

    (c)are recognised by the persons described above as:

    (i) holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or

    (ii) holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom.

27. The apical ancestors are listed in Sch 6(2) and include names which are also the subject of evidence and argument in this proceeding:

    Budubal (mother of Biddie Gilidngali)

    Durukman

    Buggy Djimululun / Dzimululun (father of Fred Jalwarta)

    Jimmy Turrukpany

28. The Jaru applicant comprised representatives from “a number of clan groups making up the Jaru people”. These included members from Bilinyana Jaru, Yudu (Kadyanana Jaru), Warl Jaru and Nynin Jaru. Bonnie Edwards was named as within the Nynin Jaru clan group: Sturt at [10]. The Jaru applicant was represented by the KLC. Dr Redmond was the anthropologist who conducted most of the research on this claim, and whose research was presented to the State as the basis for its assessment of the connection of the Jaru People to the determination area. A substantial part of his Jaru report is in evidence in this proceeding, although some of the report’s appendices are not.

29. The Court’s reasons in Sturt indicate Tanba Banks provided an affidavit in support of the application which set out some substantive evidence about Jaru traditional law and custom.

30. Mrs D.M.’s sons, Timothy and John Mosquito, provided a joint affidavit, and Timothy Mosquito and Ivan Turner also provided affidavits to the State in relation to connection to the Jaru determination area. Timothy Mosquito was one of the claim group members whose rights and interests in the determination area come through the apical ancestor Jingargi, who was added to the list of apical ancestors after the original Form 1 was filed and whose inclusion caused significant controversy and some division in the Jaru claim group. Bonnie Edwards, along with Barbara Sturt and other named applicants of the claim group, objected to Jingargi and his descendants being included in the claim and had filed an interlocutory application to vacate the consent determination on that basis. The application was ultimately dismissed.

31. As I noted at [38] of Sturt on behalf of the Jaru Claim Group, as part of the process towards a consent determination

    the relevant parties agreed that the Jaru claim could be managed separately from the Purnululu claim, the latter having some particular challenges with competing views by claim group members, and some non-claim group member respondents, about who are the right people for Purnululu country, and where the boundaries of that country are.

32. The “Purnululu claim” is a reference to the Purnululu #1 application.

33. The organisation of rights and interests under the body of traditional law said to exist at the time of sovereignty was summarised at [65]-[66] of Sturt on behalf of the Jaru Claim Group:

    Jaru People derive their rights and interests in Jaru country through local estate areas, which are their ngurra. Under traditional descent laws, one person may have rights and interests in more than one ngurra through different descent lines.

    People may derive or acquire responsibility for ngurra in other ways, such as being born on that ngurra, or because a particular ngurra was the location of a spirit conception site (jarriny) for that person. In this situation however, the enduring and authoritative rights will generally come where there are also descent-based links to ngurra.

34. The role of language in Jaru society was explained at [76]-[77], by reference to the parties’ jointly agreed submissions:

    Most of the country in the Determination Area is identified with the Jaru language. However, due to the boundaries with neighbouring groups, along the edges of the Determination Area there are ngurra where people may identify themselves by different language groupings, such as Gooniyandi (in the north-west), Kija (in the north), Walmajarri, Wanyjirra and Ngardi (in the south), Warlpiri (in the south-east), and Mirriwung and Malngin (in the northeast).

    These language differences are accommodated within Jaru traditional law and custom. Indeed, there is a category of Dreaming Story in which an ancestral being carries languages and social identities across the landscape, including across the Determination Area. During these travels the being shapes and names places within the landscape until they encounter an obstacle which renders them immobile and unable to travel any further.

    (Emphasis added.)

    The Malarngowem determinations

35. Immediately to the north and the west of the PDA are the Malarngowem Part A determination (John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697) and Malarngowem Part B determination (Gordon on behalf of the Malarngowem Native Title Claim Group Part B v State of Western Australia [2020] FCA 1149).

36. The Malarngowem determination areas are located “predominantly or wholly within country generally identified with the Kija language”. The native title holders are described in Sch 6(1) as those Aboriginal people who:

    (a)are related through filiation (including by adoption) to one of the Malarngowem Apical Ancestors who held rights and interest in one of the local estate countries comprising the Determination Area; or

    (b)are affiliated to a Malarngowem Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or

    (c)are recognised by the persons described above as:

    (i)holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or

    (ii)holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom.

37. The apical ancestors are listed in Sch 6(2) and included the following names which are also the subject of evidence and argument in this proceeding, in relation to the Purnululu PDA apicals:

    Davy Madarning / Mardangin

    Jimmy Turrukpany

    Nyidanguiny (Father of Dickie Gudangnyi Gali Durrdayny (Jungurra skin) / Tooltany, Paddy Pirtawuny / Bedowyng (Jungurra skin) & Ruby Nganngannil)

38. The apical ancestors Bilal, Dinah Ngowaya, Nyawalapan and Wulawulyan are also listed on both the Malarngowem determinations and the Purnululu claims; however, they did not form part of Purnululu PDA apicals subset. The reasons for the Malarngowem Part A determination at [13] note that “Durukman” was removed from the list of apical ancestors as part of changes that were “unanimously agreed by the Malarngowem claimants”. The reasons give no explanation for this removal, and nor did the evidence led on behalf of the Purnululu applicant.

39. Relevantly to the issues raised by the separate questions, in John on behalf of the Malarngowem Claim Group at [26], Banks-Smith J summarised connection to country in the following way:

    (a)The Malarngowem claimants derive rights and interests in the Determination Area under their system of traditional law and custom through descent to local estate area or taam countries.

    (b)Dr Redmond identifies that filiation (parent-child) relationships and descent (extended lines of filiative relationships) provides the major modality through which claimants assert rights and interests in the country associated with their forebears.

    (c)Dr Redmond notes that while the claim area is located predominantly or wholly within country generally identified with the Kija language, it also includes along the peripheries areas of land where members of neighbouring groupings may hold rights and interests but who may identify themselves principally as Bunuba and/or Gooniyandi, (in the west), Ngarinyin (in the north), Jaru (in the south), Mirriwung Gajerong (in the east) or as a mixture of those languages with Kija.

    (d)The Malarngowem claimants’ laws and customs require them to maintain and protect significant sites within the Determination Area including places imbued with spiritual or cosmological significance. Such places include birth and burial places of claimants’ forebears as well as important Ngarranggarni story sites, and law grounds of various kinds. It is common for important Ngarranggarni places to be associated with age and gender prohibitions which highlight the importance accorded to transmission of cultural knowledge and ongoing respect for the traditions held by the senior generation.

    (e)Shirley Drill in her affidavit demonstrates this by stating:

    There are a lot of sacred sites and dreamings in the Area. You need to speak to Patrick Mung about them. We would tell the students where they can go and where they can’t go. If they go to the wrong area, bad things will happen to them. If you respect country, the country will respect you.

    (Emphasis added.)

    Other surrounding determinations

40. The following determinations are not immediately abutting the PDA but fall within the East Kimberley region. The country comprising the determination areas in each was said to be associated with the Kija language group, whether primarily or alongside other language or dialect groups. I have not set out the basis for inclusion of individuals in the claim group but I note that broadly in each determination the same three criteria are set out. I note also that only two of those criteria are present in the Purnululu applications, and in the Gajangana Jaru application – that is, there is no criterion equivalent to “affiliation” with an apical ancestor, and having a “spirit conception and/or birth sites in one of the local estate countries” in the determination areas.

    The Yurriyangem Taam determination

41. Further west of the PDA is an area recognised in the Yurriyangem Taam determination: Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696.

42. The apical ancestors, 87 in total, are listed in Sch 6(2). Relevantly, this list includes “Nydanguiny (Father of Dickie Tooltany, Paddy Pirtawuny and Ruby Nganngannil)”. There are also three other apicals that overlap with the Purnululu claims but are not those contended to be specifically connected to the PDA; namely, Wulawalyan, Nyawalapan (spelt Nyalwalapan on the Purnululu applications) and Bilal. As the Court’s reasons note at [14], the list described in Sch 6(2) does not precisely align with the Form 1 as:

    Additional apical ancestors were included and some were removed following further genealogical/anthropological research undertaken by the KLC and in consultation with the Yurriyangem Taam claimants.

1. The footnoted reference by the Gajangana Jaru applicant is to [209] of the Jaru report, which is in a section of the report dealing with Jaru local estates. At [201], Dr Redmond introduces this section by recognising how closely related Jaru and Malngin people are:

   The claimants differentiate the current Claim Area at a number of different levels. At a very broad-brush level, socio-centric labels are employed to refer to four main sectors of their country: Warl (or Wawarl) Jaru in the north-west, Kadyanana Jaru in the north, Bilinyana Jaru in the south and Nyinin (or Nyinin Jaru) in the south-east (see also Corrigan 2010:35). The most north-eastern sector of the current Claim Area is commonly identified as being part of the country of Malngin people who speak a language very closely related to Jaru, and with whom a considerable number of the claimants are very closely related.

   (Footnotes omitted)

2. Dr Redmond describes the Jaru traditional understanding of rights to country at [203]:

   For reasons which I discuss below, Jaru people’s understanding of their local estate interests does not fit neatly into a model of local-level landed groups subsumed under a higher-level Jaru language-owning entity. Rather, Jaru country is constituted of unnamed, partially overlapping local estates which are delineated not by an outer perimeter enclosing a tract of country but rather by the particular characteristics of a series of named locations or sites (including waterholes, springs, soaks and other features of the landscape). These named places and unnamed local estates are seen to have become imbued with a particular kind of identity through the travels of ancestral beings which imparted their bodily essences to the land during the ngarranggarni or Dreaming epoch (see sec. 5.1.1). (emphasis added)

3. At [204], Dr Redmond identifies filiation as the principal pathway for the transmission of rights and interests in country:

   Membership in the local country groups which hold enduring identities with, and ritual and economic responsibilities for, these tracts of country is established primarily (but not exclusively) through filiation (including adoption) via a parent or grandparent’s ownership of one or more of these unnamed estates. Traditionally there has been a strong patrilifilial element in this mode of connection to country.

4. At [206], Dr Redmond describes the distinction Professor Peter Sutton, and later Dr Redmond and Professor Alan Rumsey, have made between “core and contingent rights”, or to use Dr Redmond and Professor Rumsey’s preferred term “core and contingent rights holders”:

   The effect of such a distinction is that some people hold transmissible rights to make decisions about, or ‘talk for country’ (in the claimants’ contemporary idiom) while others might hold non-transmissible rights to use and share in the bounty of the same tract of country (sometimes through the granting of ‘standing permissions’ by the holders of proprietary rights).

5. Consistently with the passage I have extracted above, Dr Redmond then refers with apparent endorsement to the opinions of Dr Daniel Vachon about Jaru traditional understanding of rights and interests in country following a “string” of related sites, rather than being boundary driven. At [208], he states:

   Vachon reported that amongst Jaru people living at Lamboo in the mid-1990s, the recognition of strings of related sites (rather than an area enclosed by a perimeter line) better captured local indigenous understandings of their local estates.

   On one level, the locations of named sites and the Dreaming tracks which sequentially order many of them are quite stable—at least, this is the claimants’ belief. But, as Sullivan suggests, when they are talked about as the ‘country’ of a certain man or woman, named places form different combinations and orientations. For instance, it is sometimes said that Gurrmala (Cummins Range) ‘starts’ from Ganina or the Bulka Hills (about 45 kms to the west). Consistent with this view of the landscape, the country of certain forebears, like Jurnug (GEN 5), is given as Guramala, Ganina and Yaninuwa (somewhere south of Lamboo). Similarly, the country of Jarndari (see GEN 5) is Ganina, Gurrmala, Gurrwarn (the name of the Christmas Creek on Lamboo). But the landscape is not regarded from a single perspective. Viewed from a northerly direction towards the southern portion of Lamboo PL, Wayidbiya’s country (see GEN 1) is said to ‘run’ from Fish Hole, Yartal [south of Fish Hole] and then south to Gurrmala. Coming from the south towards Gurrmala, Kumpayiyi’s country (GEN 7), like his brother’s, Kimirti, is Paruku (Lake Gregory) and Stretch Lagoon or Wanku (near Billiluna), then as far north as Bilu (in southern Lamboo) and Gurrmala. And from still another direction, the eldest claimant, Paddy Pidoon (GEN 4) claims his country is Ruby Plains to Lamboo to 6 Mile (north of Ruby Plains HS) to Tomkin’s Bore 89 (unlocated) to Gurrmala… The evidence for Walmajarri and Jaru ‘countries’ clearly shows that sites combine in a number of over-lapping ways. Thus, the area which may be drawn around any particular site, designated as a reference point, can vary from informant to informant, and from situation to situation. (1999:18-19).

6. At [209], Dr Redmond distinguishes the traditional Jaru approach to country from that of their Kija and Western Desert neighbours:

   In this regard, the Claimants’ traditional laws and customs governing land tenure can be seen to be interstitially situated between those of their north-western Kija neighbours (who have a strongly articulated system of named and relatively well bounded local patri-countries known in Kija as nawaram taam) and those of their southern neighbours, the Walmajarri, Kukatja, Ngardi and Warlpiri whose countries lie on the peripheries of the Western and Great Sandy Deserts.

7. There then follows an extract cited by Dr Redmond which is the part to which the Gajangana Jaru submissions refer:

   People also have rights that they inherit from their parents. Foremost among these are the rights over the land that belonged to their father and the Dreamings associated with it. People with these kinds of rights in land are called kirda in Warlpiri. The Gurindji dialects, however, do not have a commonly used equivalent term although they do have patrilineal descent groups and give the same importance to patrilineally inherited rights as the Warlpiri. It is people with these patrilineal ties to an estate that form the core of the estate group: the exact links between all core members of the estate group may not be known or they may be descended from a common ancestor who is not necessarily human. Children of a woman who remarries when they are still young will nearly always be adopted into the father’s patrilineal descent group and thus become core members of his estate group. Those children whose father is not an Aboriginal person but whose mother is, are usually adopted into the mother’s Aboriginal husband’s patrilineal descent group. All of these core members have an unquestioned right to the use of the everyday resources of the estate and a right to participate in as well as an obligation to learn about the group’s religious patrimony, as is appropriate to their age and sex. (Peterson, Dussart and Bornman 1989: 25)

   (Footnotes omitted; emphasis added.)

8. It is contestable whether, even if this were part of Jaru traditional law, the circumstances of Lily Banks and Bonnie Edwards would fit within this description because Dr Redmond is describing the incorporation of previous children into the country of a later marriage partner – the opposite of the situation in question here. However, as the larger context which I have quoted makes clear, Dr Redmond was here not describing Jaru traditional law and custom at all, but contrasting Jaru law and custom with that of Western Desert People.

9. Therefore, the references to these aspects of Dr Redmond’s opinion do not advance the Gajangana Jaru case on this issue.

10. However, the references in these passages to a “string” of sites/estates, rather than boundaries, is of some significance in understanding the descriptions of country to which I have referred about Bulugul and her siblings.

11. The Gajangana Jaru applicant’s reliance on broader kinship in and of itself as giving rise under traditional law to rights and interests in the PDA through Paddy Jandiyarri Turner must be rejected.

    The evidence about connections between Bonnie Edwards and Lily Banks, and Paddy Jandiyarri Turner

12. Dr Redmond estimates that Paddy Jandiyarri was likely to have been born around 1897. That would place him as not far off, perhaps one generation away, from Fred Jalwarta.

13. Paddy Jandiyarri Turner had two full brothers, David Turner and Alec Turner, and a half-brother Raymond Turner from a different father. Dr Redmond noted in his report that David Turner was “decades younger” than Paddy, possibly around 35 years younger.

14. As with Fred Jalwarta, Tanba Banks is the only witness who knew Paddy Jandiyarri Turner. She gave evidence that he was a Jaru man and that she camped in a cave at Piccaninny with Paddy Jandiyarri Turner, Topsy Dangai Banks, Wulmarriya, Bulugul and Jalwarta. Mrs Banks told Mr Wrigley that she put her father in Bungarun, the leprosarium in Derby, and that he died there at some point after her son Peter was born. Mrs Banks gave the following account to Mr Wrigley:

    Tanba: My daddy bin lose la Bangaran (Derby Leprosarium). And my mother died in Wyndham. They are buried there. I bin put Paddy in Bangaran myself, nobody bin help me. I was in Turner and I had to put him in there.

    Peter was born in Derby, Numbala Nangga in 1960. I was there in Derby to have him at the hospital, but he came too soon in Numbala Nangga (accommodation for the hospital). My Daddy use to visit us when Peter was born. He used to walk from Bangaran (about 20km) to visit us.

    He passed away soon after I went back to Turner with Peter.

    (Emphasis added.)

15. Attendance records from the leprosarium indicate that Paddy Jandiyarri Turner arrived on 2 November 1943 and departed, or died, on 5 May 1957.

16. Lily Banks and Bonnie Edwards, who were born in 1950 and 1952 respectively, therefore never met Paddy Jandiyarri Turner, although their lives briefly overlapped. Both gave evidence that they referred to him as “Dad” and the Gajangana Jaru applicant submits that Paddy Jandiyarri Turner, by inference, knew of them. This inference appears to be based only on the chronological fact that both Lily Banks and Bonnie Edwards were born, and were young children at least, prior to Paddy Jandiyarri Turner’s death (it has been inferred) in 1957.

17. Lily Banks’ biological father was Jack Johnson Jnr, the son of Gagai and a relative of Paddy Jandiyarri Turner. I have found Gagai was a sister of Bulugul. Mrs Edwards gave evidence that Jack Johnson was “next in line” to marry Topsy Dangai Banks after Paddy Jandiyarri Turner was taken to Bungarun. Lily Banks told Mr Wrigley that after a brief relationship with her mother, her father left for another woman in Wyndham and her mother then met and married Mrs Edwards’ biological father, Les Banks, a white station worker living on Turner Station.

18. Lily Banks gave evidence that she has rights and interests in Flora Valley through her father, Jack Johnson, and that she has rights and interests in the PDA because she “comes with Bonnie and Tanba”. Bonnie Edwards said in evidence that she claims rights in the PDA through “the kinship rules from Tanba because Tanba is [her] sister and Paddy Turner was [her] mother’s first husband, who had Tanba”. She gave evidence that Paddy Jandiyarri Turner had rights in the PDA through Bulugul’s father, Durrukman. I have accepted that is the likely genealogy. She said she did not know if Paddy claimed that country, but said “he’s got every right to” because of his descent from Durrukman. I have noted it is an agreed fact that Tanba Banks had rights in the PDA through her father Paddy Jandiyarri Turner. Her evidence was also that Paddy Jandiyarri Turner’s father’s country was on the Nicholson River, on the eastern side of Turner Station, flowing into the Linneker River and out into the Ord River.

19. Mrs D.M. was the daughter of David Turner and knew the three sisters and their mother Topsy Dangai Banks for most of her life. In earlier times, she told Dr Corrigan that she regarded the three sisters as “proper family”. Her evidence was that both she and Tanba Banks got Gardayng Riyarr country through their fathers, which she located as the country on Turner Station up to, but not crossing over, the Ord River. Mrs D.M. said “Tanba also jumps over to Mernte Mernte through her grandmother, her ngowiji (father’s mother), Bulugul”. However, Mrs D.M. denied that the other two sisters could claim rights in the PDA.

20. Ivan Turner gave evidence that he referred to Bonnie Edwards and Lily Banks as sisters because of their connection (to Bulugul) through Paddy Jandiyarri Turner. Ivan Turner’s grandmother was Flora Mayilba, and it is an agreed fact that Mayilba and Bulugul were siblings or half-siblings. Ivan Turner said he spent time with and had a “very close” relationship with Paddy Jandiyarri Turner’s brother David Turner, but that he had not heard of Paddy Jandiyarri until “very recently” and that “Uncle David didn’t mention him and nobody else mentioned him”.

21. The Purnululu applicant submits that this lack of knowledge about Paddy Jandiyarri Turner is “revealing” and that the “likely explanation” is that Bonnie Edwards’ and Lily Banks’ claim through him is a recent occurrence, only made after David Turner died in 2007. The Gajangana Jaru applicant in reply refers to Ivan Turner’s evidence that, apart from a six-month period in the late 1960s at Nicholson Station, Ivan Turner was not present in the vicinity of the PDA until 2005 or early 2006, when he came to live with David Turner, who died a year later in January 2007. Ivan Turner agreed in evidence that when he arrived in the area at that time, David Turner was focused on his block in Gardayng Riyarr, and that he would not know about the times before that, in the 1990s when David Turner was spending time in the PDA with Raymond Wallaby. Ivan Turner’s evidence about the country that David Turner identified with is another example of the choices available to people, and the choices in fact made:

    MS GEORGIOU: And when David Turner, your uncle, claimed his country in that Gardang Riyarr, he could also claim Bulugul’s other country, couldn’t he, and not just the Gardang Riyarr - - -

    IVAN TURNER: Yes, yes.

    MS GEORGIOU: - - - but other country that Bulugul belonged to?

    IVAN TURNER: He chose his father’s country.

22. There is no real basis to find that the lack of knowledge about Paddy Jandiyarri Turner amongst other lay witnesses implies any lack of recognition of his rights and interests in the PDA, or his connection to the PDA. Those who were close to him in terms of family connections (like Mrs D.M.) gave sufficiently detailed evidence about him. Indeed, it is an agreed fact that Tanba Banks’ rights come through him, because of his interests in the PDA.

23. It appears to be a relatively obvious inference to draw that the fact Paddy Jandiyarri was moved away to the leprosarium at Derby, combined with the fact that he was known to have leprosy, may well have led to him not being discussed much at all amongst the community. It would certainly have led, I infer, to a loss of contact between him and his community. His wife, Topsy Dangai Banks, subsequently had other relationships. The evidence before the Court is that the only person who visited him in Derby was his daughter, Tanba Banks, who was also the person who had to take him to Derby in the first place. Nancy Nodea’s written evidence was that while she spent time in Bungarun, she “used to stay separate from the men so I didn’t really see Paddy Turner there”.

24. I find that, aside from the obvious connection, both biological and kinship based, between Paddy Jandiyarri Turner and Tanba Banks, there was no real evidence of any connection between him and Bonnie Edwards or Lily Banks. Lily Banks has stated that she was only two years old when he went away, although that cannot be correct since Paddy Turner was admitted to Bungarun in 1943, seven years before Lily Banks was born.

25. The following exchange during final submissions throws up some of the difficulties for the Gajangana Jaru applicant in its contention:

    MR McINTYRE: After that he would have had a normal father/daughter relationship, we say, with Bonnie and Billy. They – he lived for 11 years, I think, after Lily was born, and 10 years after Bonnie was born in that leprosarium. So – and we don’t have any evidence about how much he knew about them, but we say that that was a continuing partnership, albeit at a distance.

    HER HONOUR: The partnership between their mum and Paddy Turner?

    MR McINTYRE: That’s right.

    HER HONOUR: Is there evidence about that?

    MR McINTYRE: Well, other than – well, I don’t think it’s disputed that he was – there was a – like, well, he was the father of Tanba, so - - -

    HER HONOUR: I know, but the evidence also is that their mum had two subsequent relationships.

    MR McINTYRE: Yes.

    HER HONOUR: So, that’s what I’m trying to figure out, what is the evidence that the relationship between their mum and Paddy Turner continued?

    MR McINTYRE: I don’t think there’s any specific evidence about that, and we would say that that’s not an issue. But, look, the continuity of it is not a – not a matter which needs to be determined. And we say it continued because it existed in the first place, and it – yes. Yes, we say it was a partnership which came out of a – out of traditional law and custom in the sense that they were the right skin groups and they were the right people to marry. And they did marry, and it’s not unusual for a person to have more than one partner in that society.

    HER HONOUR: And what about the point that Mr Keely made that this – could this apply equally to who might be able to claim through Jack Johnson to his country? Who of the sisters?

    MR McINTYRE: Yes, it would, but that – that rule would have to apply equally.

    HER HONOUR: It would have to be. I mean, in that sense you’re not submitting there’s anything unusual or particular about this situation? You’re saying there’s some general rule of traditional law and custom that if there is a partnership, non-biological children in that partnership can claim through the father?

    MR McINTYRE: Yes, that’s right.

    HER HONOUR: So, Bonnie could have equally claimed the country with Jack Johnson?

    MR McINTYRE: Yes, she could. I mean, it would be a matter of choice, and we – you know, I don’t think it’s contested that it’s – it becomes – perhaps in that sense, the inchoate concept has some significance because it becomes a question of which rights, which are opened to be claimed, will actually be asserted? So, if – so, her interests – you know, Lily or Bonnie, we would say, would also have inchoate interests in country, which belong to Jack Johnson because Jack Johnson’s mother, we say, was a descendant of Durrukman, and so they would – it would be a claim in to the same country. So, he – Durrukman, so, they’re – Jack Johnson’s mother is a sibling, we assert, of Bulugul, so it doesn’t take them outside the same group, but it would be another avenue for the claim.

26. With respect, counsel’s submissions in these passages involve nothing more than speculation. There was no evidence of letter writing, or phone calls, of visits and the like between Paddy Jandiyarri Turner and Bonnie and Lily. The fact that Paddy Jandiyarri Turner remained alive for seven years after Lily Banks was born, and five years after Bonnie Edwards was born cannot provide a basis for any inference about the passing of knowledge, or interests, let alone rights, in Paddy Jandiyarri Turner’s country. In those seven years, Topsy Dangai had two more relationships.

27. There is no equivalence between this kind of situation and the traditional adoption situation or the “growing up” of a child by a father who is not the biological father. Those circumstances all involve, in one way or another, the incorporation of a child into the community of the non-biological parent, through and because of the non-biological parent (not necessarily to the exclusion of others, but in terms of a measurable parental role). It is the existence of some kind of tangible parental role, and incorporation into a community because of it, which provides the foundation for passage of rights and interests in communities or groups where interests pass by filiation.

1. The evidence does not disclose that Paddy Jandiyarri Turner played any such role for Lily Banks and Bonnie Edwards. As the Gajangana Jaru applicant submits, the explanation for this lies in the awful circumstances of the introduction of the disease leprosy to the Aboriginal communities, and the consequent removal and incarceration policies of State governments. Those are matters over which Paddy Jandiyarri Turner and his family had no control. However awful they are, that they occurred compels Mrs Edwards and Lily Banks’ arguments to revolve around the fact of a “close” classificatory relationship, and the acceptance of this, which they contend was evident at least until the early 1990s. I am not persuaded that is enough to justify a finding in their favour. As I have explained, although I agree there was acceptance of the two women as part of a family group which had rights by descent in the PDA, the basis for this acceptance remained unarticulated, and now – in the face of a challenge - must not only be articulated, but proven.

   Adaptation of traditional law and custom to accommodate children of a non-Aboriginal parent: Mrs Edwards

2. While it denies that the system of transmission of rights and responsibilities depended only on patrilineal descent or adoption, the Gajangana Jaru applicant contends in the alternative that there has been a “permissible adaption of those laws to provide for a child with a European father to acquire rights by filiation through close kinship relationships with their mother’s former husband”. It contends that such rules around filiation and kinship have been applied to accommodate children born to non-Aboriginal parents within the land tenure system through their mother’s Aboriginal husband, irrespective of whether that husband “grew up” the child.

3. This contention can only be relevant in relation to Bonnie Edwards. Mrs Edwards explained the situation in this way to Dr Corrigan:

   My father was a white man so I have to follow my mother’s husband for father, Lily can tell you. I don’t know if Jandiyarri recognised me, but I called his brother [David Turner] dad. … [H]e [Paddy Turner] was my mother’s straight husband. He [David Turner] used to call me ngapi [a reciprocal term in Jaru for Dad - or interchangeably, a child who one has a father relationship with] … He [Paddy Turner] was my Dad skin way and family way (Corrigan FN 8 April 2019)

4. I have inferred in square brackets who Mrs Edwards was referring to in this evidence.

5. That account is substantively similar to the account Mrs Edwards gave to Dr Donaldson in 2008:

   Rosie Buligal Numbijin and Gurunbul Jurnanri had Paddy Turner, Tanba Bank Jiddngarri's father. Rosie was J aru from the Bungle Bungles. Gurunbul was Malngin and Gajingarna Jaru mixed from the Osmand Ranges. Bonney classifies Gurnunbul as her grandfather, and Rosie as her grandmother, through her classificatory father's line, ie through Paddy Turner. Bonney also called Paddy's brothers David, Raymond 'dad'. After Paddy died, Topsy married Jack Johnson, Paddy's first cousin.

6. Dr Donaldson records Nora Nocketta as saying:

   Tanba and Bonney can talk for Piccaninny Creek, they grew up there.

7. The Gajangana Jaru applicant refers to a similar practice in the Northern Territory, cited by Dr Redmond in his Jaru Report, which I have extracted at [1670].

8. The passage of Peterson, Dussart and Bornman, cited by Dr Redmond, was adopted by the Aboriginal Land Commissioner in the Western Desert Land Claim. The Gajangana Jaru applicant submits that this claim is closely connected to the current claim, as it concerned land on the Western Australian border, the claimants were closely connected with Birindudu, Gordon Downs and Flora Valley, and they spoke languages Malngin, Wanjirra and Gurindji, which are closely associated with Jaru. On the basis that Dr Redmond has referred to and apparently accepted this practice, I am prepared to accept such a practice existed. I otherwise have decided not to consider the contents of the Western Desert Land Claim report.

9. The Gajangana Jaru applicant also cited Levitus’ 2008 report:

   David Turner also offered an alternative interpretation of Bonnie Edwards’ attachments that place her within the descent group of Bulugul. Given that she is the sister of Tanba Banks from the same mother, she can be treated the same as Ms Banks, and therefore attributed the same relations to land as Ms Banks takes through her father. This approach displays a characteristically Aboriginal attempt to integrate a person with one non-Aboriginal parent by treating them as equivalent to their same sex sibling – ‘we can’t separate them’ - and attributing status as if they were also the child of their mother’s previous or subsequent Aboriginal husband. David Turner’s daughter [Mrs D.M] agreed with this method of integrating Bonnie Edwards. It is consistent with Mindi Mindi’s own attitude to the descendants of Gridngali by George Thompson, discussed above. In this case, it was motivated by David Turner’s memory of how white people often treated mixed descent people as if they were Aborigines, and by admiration for Ms Edwards’ bilingual skills.

   However, while the Purnululu Aboriginal Corporation accepted the descendants of Bulugul, including Tanba Banks, as native title claimants for the Purnululu claim area, it appears that this would not extend to include Bonnie Edwards or her descendants. Adoption was recognised within the PAC claim in the following terms:

   If a woman marries a descendant of a named apical ancestor, any of the woman’s children are adopted as the children of the new husband.

   This was intended to cover the circumstances of children of white fathers, where the mother subsequently re-marries to an Aboriginal husband. This does not cover the circumstances of Ms Edwards because her white father was the last husband of her mother, so the proposed ‘adoption’ into Bulugul’s descent line would have to be retrospective, through her mother’s previous Aboriginal husband. Such a device is of course not traditional in the strict sense, because it is intended to assimilate into Aboriginal social life a set of circumstances arising from European contact. As indicated above, however, such a device finds acceptance, indeed it was suggested, among related individuals. It is also consistent with my experience in western Arnhem Land, where the device of adoption is not restricted to the mother’s subsequent Aboriginal husband.

   There is also, however, the question of Ms Edwards thereby being a member of two land-owning descent groups. As the two areas of land as claimed are contiguous with one another, and Ms Edwards has had substantial life-history connection with both, this may not be a problem.

   Finding 20: The adoption of Bonnie Edwards into the descent group of Tanba Banks’ father’s mother Bulugul is consistent with Aboriginal principles for dealing with the social discontinuities introduced by European contact.

   (Original emphasis.)

10. The Purnululu applicant agrees that traditional law and custom accommodates Aboriginal children with non-Aboriginal natural fathers gaining rights through their Aboriginal step-fathers, but contends that an element of that Aboriginal step-father “growing up” the child is required in order for that child to form part of the Aboriginal descent group. This would mean that this accommodation or adaptation cannot apply to Bonnie Edwards, who never met Paddy Jandiyarri Turner and was not grown up by him. In substance, the Purnululu applicant narrows or restricts this pathway to circumstances where a parental role was played by the man concerned.

11. By way of comparison to Mrs Edwards’ situation, the Purnululu applicant cites two examples in evidence of children of non-Aboriginal biological fathers. The first is Nancy Nodea’s evidence that her father had an Afghan biological father but that an Aboriginal man, Junbaynngulu, grew him up and was recognised as his father. She identified her main country as Ngarrkuruny in the “Osmond Range between Texas Downs and Kawarre” as coming from both her mother and father. The Purnululu applicant submitted her father “acquired rights from his Aboriginal father who grew him up, this being the subject of wider community acceptance”.

12. The second example is Paul Butters’ evidence that his father Sam Butters had a white father (the pastoralist Sam Muggleton) and that Sam Butters got his country from his mother Buttercup’s father Paddy Pirtawuny. Buttercup subsequently married George Mung Mung. The Purnululu applicant submitted that Sam Butters was not “grown up” by George Mung Mung and therefore did not claim country through him. It contends that “Sam Butters acquired rights directly and automatically from his mother and her father, so there was no need for any wider community acceptance”.

13. The Purnululu applicant further submits that it is notable that no examples are provided by the Gajangana Jaru applicant of any situations that factually align to the present case, where a child claims the country of their mother’s former husband, with whom there has been no contact.

    Findings

14. I accept there is evidence supporting the proposition that, in some circumstances, a child with a non-Aboriginal father may be incorporated into a native title holding group, where rights are usually transmitted by descent. As Olney J’s decision in Yarmirr demonstrates, it is possible for a child to be “grown up” in a completely different community to that into which she or he is born and to be accepted as a member of that traditional owner group. I accept that this practice has been specifically adapted post-sovereignty to extend to children who have a non-Aboriginal father, especially in societies where there is a “presumptive” pathway to rights and interests based on patrilineal descent.

15. Another example from the evidence is Stella Albert. Stella Albert was Dolly Marrkparriya’s daughter and was forcibly removed from Dolly at a young age as she had a white father, named by Bonnie Edwards as Jack Egan. It is unclear on the evidence when Stella Albert was removed and returned to her family, but Mrs Edwards’ evidence is:

    We accepted Stella because Jun-nga grew her up like a step dad even though she was a half-caste.

16. I infer that “Jun-nga” is a reference to Paddy Junnga, who became a partner to Dolly Marrkparriya after Stella Albert was born and with whom Dolly had Phyllis Thomas. Cherylene Nocketta also gave evidence that Dolly, her grandmother, “had a daughter Stella Albert with a kartiya and she was taken away, part of the stolen generation”. In her oral evidence, there was this exchange about Stella’s acceptance in the family:

    MR McINTYRE: And do you remember what they – what Tanba and Lily and Bonnie called Nora and Sandy?

    CHERYLENE NOCKETTA: Calls them brother and sister.

    MR McINTYRE: And what would they call Stella?

    CHERYLENE NOCKETTA: Sister.

17. Kitty Nocketta gave evidence that she referred to Stella as her “mum”, and Shirley Drill in her evidence listed Stella as one of Dolly’s daughters and ascribed her the name “Wambirrngali – this name comes from the Turner area”. It is clear that, despite her white father, and despite being removed from her mother for some of her childhood, Stella was and continues to be considered to be as much part of that family as her siblings Nora and Sandy. There was no suggestion in the evidence that Stella Albert would not be seen as having acquired rights and interests in the PDA. I accept that, in her case, it was the child who was removed, and in Paddy Jandiyarri Turner’s case, it was the father who was (in effect) removed. I also accept that Dolly Marrkparriya had rights and interests in the PDA herself, so Stella Albert could take rights through her. Nevertheless, this example provides some support, not exact I accept, for the existence of a normative approach to children with a white father which sees them incorporated and accepted into a group which takes country presumptively by patrilineal descent. The exigencies caused by white settlement are thus ameliorated.

18. Therefore, I find on the balance of probabilities that the contended adaptation of traditional law and custom for children with a non-Aboriginal father exists, and exists in both Kija-identifying and Jaru-identifying native title holding groups. It is a further extension of the practices of customary adoption of children. That customary practice is recognised by Dr Redmond in his report in this proceeding (at [152]) and he devotes a section to it in his Jaru report (at [320]-[327]). In my opinion, through a combination of the examples from the witnesses and what is said about law and custom, the evidence indicates no difficulty was seen in extending this customary practice to children accepted as Aboriginal, and grown up as Aboriginal, where one parent was white, and in particular (given the patrifilial presumption) where the father was white. Such children could be accepted in a law and landholding system based around descent through fathers who were not their biological fathers.

19. Had such an adaptation been applied to Bonnie Edwards, given the unusual circumstances of Paddy Jandiyarri Turner being moved away because he had leprosy? Dr Levitus clearly concluded it had. He relied to some considerable extent on the views of David Turner, a Jaru elder. Certainly, when Mrs Edwards was growing up at Turner and in the PDA, the evidence suggests in terms of her lived experience on country in the PDA no real distinctions were made between her and her siblings, or other family members. I accept her evidence about the close kinship relationships between her and the Turner brothers. I have referred to some of her own evidence about the racism she encountered. In those circumstances (such as her being sent to a school for “half-castes”) it was the invading European system making the distinction based on race. Mrs Edwards could not follow her biological father to take rights, but she was being raised in and around the PDA; not country which her mother apparently identified with (even if she was, I have found, able to), but amongst an extended family group who had acquired rights by descent in and around the PDA.

20. This appears, on Dr Levitus’ accounts, to have been the way David Turner saw the position. The evidence of how Mrs Edwards was treated prior to 1992 suggests that others saw this as the position prior to 1992. As I have explained, there are parallels with the situation of Stella Albert, who was taken away by reason of conduct foreign to a traditional way of life. The same could be said of Paddy Jandiyarri Turner. Paddy Jandiyarri’s physical absence due to him having contracted leprosy did not appear, prior to 1992, to have featured as a disqualifying factor for Mrs Edwards.

21. The treatment of this unusual situation as a variation on customary adoption, but not antithetical to customary practice, also explains the willingness of Thomas Yiliyarri to take Mrs Edwards and Vincent Edwards around the PDA and share information about sites, and about the country, with them. Mrs Edwards had been born within a day of Mr Yiliyarri’s own biological daughter, in the same place, but to a white father. Taking the evidence as a whole, in my opinion Thomas Yiliyarri is more likely than not to have implicitly accepted that an adaptation of the usual descent pathway should be made for Bonnie Edwards, and indeed he encouraged her, and her family, to see the PDA as their country. In my opinion, as I have explained, prior to the acrimony developing after 1992 (when Mrs Edwards was well into adulthood), the broader group accepted this situation as well.

22. The Gajangana Jaru applicant’s submission is supported by Dr Redmond’s view that while patrifiliation may at one stage have been the primary way of taking country,

    even at the threshold of European settlement there were a range of socially valorised alternate and parallel routes for figuring connections to a local country and that these operated as part of a set of multiple, cross-cutting relationships to country (Rumsey 1996). Some of these other routes to ownership of local countries, while having a social value in their own right, become most apparent in circumstances where the patrifilial principle was not activated for one reason or another.

23. Of course, the inclusionary approach to Mrs Edwards prior to 1992 could also have been explained by her connection through Jalwarta, which I have accepted. Since I have upheld that aspect of the Gajangana Jaru case, it is not strictly necessary for me to make a finding about the adaptation of traditional law enabling a child of a non-Aboriginal father to take rights through a classificatory relationship, even without active involvement from that father. To ensure finality, I consider I should make a finding on this issue as well. I find Mrs Edwards had been accepted throughout her life and into her adulthood as able to take rights in the PDA. I find it was likely to have been tacitly understood that, through no fault of her own, and through no fault of his, Paddy Jandiyarri Turner could not “grow her up”, because he had been removed to the leprosarium – itself the result of contracting a white man’s disease.

24. The loss of acceptance from the early 1990s onwards was no doubt contributed to by Mrs Edwards’ own behaviour, but it does not obliterate, or render nugatory, the adaptation of a traditional pathway, and its acceptance, which had previously existed.

25. This is not a pathway applicable to Lily Banks. She is not mentioned by Dr Levitus, nor by David Turner. I find that is likely because it was known and accepted she followed her Aboriginal father Jack Johnson, and took rights and interests in Flora Valley. In other words, she was not without country through the presumptive patrifilial pathway.

    Concluding remarks

26. In this separate question proceeding, the Court has been required to make findings about people’s families, about their family relationships and histories, and about matters central to their lived experience and their sense of who they are: that is, their connection to country. Some might see this as the negative side of the native title system. It is certainly an invidious task for a Court.

27. Due to the passage of more than 25 years since the Native Title Act’s processes were first engaged about the PDA, parties and their legal representatives have had to prepare their cases without the presence of many senior people who had the most complete and direct knowledge of these matters. The evidentiary record is therefore less complete than it should have been. There can be nothing but regret it has taken this long. Despite the difficulties, the claimants, their witnesses and their legal representatives, the officers of the State and its legal representatives, and the KLC, have invested a tremendous amount of effort, resources and dedication into this separate question proceeding. The Court is grateful for all the assistance it has received.

I certify that the preceding one thousand seven hundred and twenty-nine (1729) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate:  

Dated:       22 October 2020