Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia
[2018] FCA 430
•29 March 2018
FEDERAL COURT OF AUSTRALIA
Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430
File numbers: WAD 6169 of 1998
WAD 232 of 2009
WAD 47 of 2014Judge: NORTH J Date of judgment: 29 March 2018 Catchwords: NATIVE TITLE – applications for determination of native title – determination of a separate question – who are the persons holding native title rights and interests in the application areas – challenge by Indigenous respondents to whether certain apical ancestors held native title rights at sovereignty
NATIVE TITLE – whether language group identity is determinative to rights to land – communities living along borders speaking multiple languages – language group identity is not determinative of rights to land
NATIVE TITLE – traditional laws and customs governing the acquisition of native title rights to land by descent – whether rights to land are acquired through cognatic descent or patrilineal descent
NATIVE TITLE – whether community recognition is requirement for the acquisition of rights to land under traditional laws and customs
NATIVE TITLE – whether the Indigenous respondents by contesting the applicant’s claim established that they are not part of the society – whether the Court should exclude the Indigenous respondents as members of the land holding group
NATIVE TITLE – whether the Indigenous respondents should be removed as respondents to the application
NATIVE TITLE – evidence of traditional laws and customs in native title proceedings – difficulty of proof – conflicts between archival and contemporary oral evidence – approach of the Court to resolving such evidentiary conflicts
Date of hearing: 27 - 30 May 2013, 4 - 8 September 2017, 30 October - 3 November 2017, 6 and 7 December 2017 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 359 Counsel for the Applicant: Mr S Wright SC Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Mr G Ranson Solicitor for the State of Western Australia:
State Solicitor’s Office Counsel for the Indigenous Respondents: Mr P Clifford (28 and 29 May 2013) Solicitor for the Indigenous Respondents:
Mr A Rumsley of Alan Rumsley Commercial Dispute Lawyer
ORDERS
WAD 6169 of 1998
BETWEEN: CYRIL GORDON ON BEHALF OF THE KARIYARRA NATIVE TITLE CLAIM GROUP (and others named in the Schedule)
Applicant
AND: THE STATE OF WESTERN AUSTRALIA (and others named in the Schedule)
Respondent
WAD 232 of 2009
BETWEEN: TR (DECEASED) ON BEHALF OF THE KARIYARRA – PIPINGARRA NATIVE TITLE CLAIM GROUP (and others named in the Schedule)
Applicant
AND: THE STATE OF WESTERN AUSTRALIA (and others named in the Schedule)
Respondent
WAD 47 of 2014 BETWEEN: CYRIL GORDON ON BEHALF OF THE KARIYARRA – ABYDOS NATIVE TITLE CLAIM GROUP (and others named in the Schedule)
Applicant
AND: THE STATE OF WESTERN AUSTRALIA (and others named in the Schedule)
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
29 March 2018
THE COURT ORDERS THAT:
1.To the question “Who are the persons (if anyone) holding the communal rights comprising the native title claimed by the applicants in the Kariyarra Claim Area?”, being the area of applications WAD6169/1998, WAD232/2009 and WAD47/2014, the Court provides the following answer:
(1) The persons holding the communal rights comprising the native title claimed by the applicants in the Kariyarra Claim Area are the persons who comprise the Kariyarra community, being those Aboriginal persons who:
(a) are a descendant, by cognatic descent, from one or more of the following apical ancestors:
(i) Jinapi
(ii) Wirtinpangu (Jimmy)
(iii) Dougal Robinson
(iv) Puyubungu
(v) Yanki Williams
(vi) Topsy McKenna
(vii) Fanny
(viii) Nyitji
(ix) Maggie
(x) Tommy Anderson
(xi) Fauntleroy (Pontroy)
and
(b) recognise themselves as having rights and interests in the Kariyarra Claim Area under Kariyarra traditional law and custom, and
(c)are recognised by other members of the Kariyarra community as having rights and interests in the Kariyarra claim area under Kariyarra traditional law and custom.
2.Liberty to the applicants and the first respondent to apply by 10 April 2018 to remove the words “by cognatic descent” in paragraph 1(a) of the above answer.
3.Subject to any order made under paragraph 5 of these orders, Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith are removed as respondents to the Kariyarra – Pipingarra application WAD 232 of 2009.
4.Within a time to be fixed the applicants and the first respondent file in Court a proposed determination of native title.
5.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
INTRODUCTION
[1]
WHO WERE THE WITNESSES CALLED AND WHAT WAS THE COURSE OF THE HEARING
[9]
WHAT IS THE WAY IN WHICH THESE REASONS FOR JUDGMENT ARE ARRANGED
[18]
IS LANGUAGE GROUP IDENTITY DETERMINATIVE OF RIGHTS TO LAND
[27]
ARE RIGHTS TO LAND ACQUIRED THROUGH PATRILINEAL OR COGNATIC DESCENT?
[32]
The applicants’ evidence
[35]
The Indigenous respondents’ evidence
[40]
The expert evidence
[53]
Consideration
[118]
DOUGAL ROBINSON
[127]
PUYUBUNGU
[142]
YANKI WILLIAMS
[156]
TOPSY MCKENNA
[168]
FANNY
[186]
NYITJI
[208]
PONTROY
[224]
JINAPI
[255]
THE WAY IN WHICH THE COURT HAS APPROACHED THE EVIDENCE AND ITS APPLICATION TO THE APICAL ANCESTOR TOMMY ANDERSON
[278]
Introduction
[278]
Some general observations about the approach to evidence
[281]
Why did the Indigenous respondents challenge the rights of the applicants?
[285]
Applying the same approach to the evidence relating to Tommy Anderson as was applied to the evidence relating to the contested apical ancestors
[295]
The extent of the Tommy Anderson estate
[313]
COMMUNITY RECOGNITION
[333]
SHOULD THE INDIGENOUS RESPONDENTS BE FOUND NOT TO BE PART OF THE KARIYARRA PEOPLE
[350]
SHOULD THE INDIGENOUS RESPONDENTS BE REMOVED AS RESPONDENTS IN THE KARIYARRA – PIPINGARRA APPLICATION?
[353]
DISPOSITION
[356]
NORTH J:
INTRODUCTION
On 15 December 2016, the Court ordered that the following question be determined separately from any other question in each of the proceedings WAD 6169 of 1998, the Kariyarra main application, WAD 232 of 2009, the Kariyarra – Pipingarra application, and WAD 47 of 2014, the Kariyarra – Abydos application:
Who are the persons (if anyone) holding the communal rights comprising the native title claimed by the applicants in the Kariyarra Claim Area?
The three applications relate to land and waters generally south of Port Hedland in Western Australia. The area of each application are shown on the map which is Annexure A to these reasons for judgment.
The reference in the separate question to the claim area is a reference to the land and waters within the external boundaries of the three applications. That area is also referred to in these reasons for judgment as the application area.
There has been contention among the Aboriginal people of the area covered by the applications concerning the people who have native title rights and interests in those areas. Some of the history of that disagreement can be seen in earlier judgments of the Court in these proceedings. It is not necessary to describe that history further at this point, although some reference will be made to it later in these reasons for judgment.
The purpose for seeking an answer from the Court to the separate question is to resolve a fundamental disagreement over the constitution of the native title holding group. Once that issue is resolved, the path to a determination of native title should be clear because it is accepted by all that native title exists in the application area.
The native title claim group is now described in each of the applications in the same way as follows:
The native title claim group comprises those Aboriginal persons who:
(a) are a descendant from one or more of the following apical ancestors:
Jinapi
Wirtinpangu (Jimmy)
Dougal Robinson
Puyubungu
Yanki Williams
Topsy McKenna
Fanny
Nyitji
Maggie
Tommy Anderson
Fauntleroy (Pontroy)
and
(b) recognise themselves as having rights and interests in the Claim Area under Kariyarra traditional law and custom.
The applicant in each application argued in favour of the above formulation of the native title claim group. The first respondent, the State of Western Australia, supported the applicants, save that it argued for an additional requirement for inclusion in the native title holding group, namely, recognition of a person as Kariyarra by the community.
Six siblings from the Dann, Todd, and Lockyer families namely, Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith, the Indigenous respondents, opposed the above formulation of the native title holding group. The Indigenous respondents were respondents in the Kariyarra – Pippingarra application. The Court rejected an application by the applicants in that application to remove them as respondents: TR (Deceased) on behalf of the Kariyarra Pippingarra People v State of Western Australia [2016] FCA 1158. The Indigenous respondents are descendants from Tommy Anderson. They disputed that the other apical ancestors, other than Maggie, were Kariyarra and entitled to rights to land. Although the Indigenous respondents were not respondents in the other two applications, the arguments and reasoning apply equally to all three applications.
WHO WERE THE WITNESSES CALLED AND WHAT WAS THE COURSE OF THE HEARING
Lay evidence on the separate question was given, first, in 2013 in Yandeyarra by way of preservation evidence from two senior Aboriginal women, Ms E Williams, who has since died, and Ms Irene Roberts. Then, from 4 – 8 September 2017, the applicants called 12 witnesses in Port Hedland being descendants of the proposed apical ancestors. Those witnesses were Margaret Stewart, Rick Watkins, Raelene Button, Jenny Baraga, Vincent Lockyer, Donny Wilson, Diana Robinson, Eileen Rule, Alfred Barker, Jason Alec, Jeannie Snowball, Selina Ali. None of the witnesses trace their rights back to the remaining apical ancestor, Wirtinpangu.
The Indigenous respondents called seven lay witnesses. Five of those witnesses were Indigenous respondents, namely, Ms Mary Attwood, Mr George Dann, Ms Shirley Lockyer, Mr Robert Dann and Ms Patricia Mason. They also called Joseph Kickett, an Aboriginal man who is not a respondent, and John Patterson, a non-Aboriginal man. These seven witnesses gave evidence in Perth from 30 October – 1 November 2017.
The applicants relied on the expert evidence of the anthropologist, Dr Kingsley Palmer. He wrote an initial report filed on 19 December 2013, the Palmer 2013 report, a further supplementary report filed on 29 September 2015 relating to the Kariyarra – Abydos application area, the Palmer 2015 report, and a responding report dated April 2016 but filed on 9 January 2017, the Palmer 2017 report.
The Indigenous respondents relied on the expert evidence of the anthropologist Dr Phillip Clarke. He wrote an initial report filed on 8 October 2015, the Clarke 2015 report, and a reply report to Dr Palmer’s responding report filed on 19 April 2017, the Clarke 2017 report.
On 22 and 23 May 2017, Dr Palmer and Dr Clarke participated in a conference of experts conducted by Registrar Herrmann in an attempt to narrow the issues in dispute between the parties. An agreed written record of the result of that conference was received in evidence.
Dr Palmer and Dr Clarke gave oral evidence, a part of which was given concurrently. Their evidence was given in Perth on 2 and 3 November 2017.
The parties agreed that an expert report dated February 2012, written by the anthropologist Dr John Morton, the Morton report, form part of the evidence without Dr Morton being called to give oral evidence. Dr Morton was commissioned by the Court in 2012 to provide a report as part of an attempt to resolve the divergent views of the parties through mediation. The circumstances in which the report was commissioned are set out in a judgment of the Court: Roberts v State of Western Australia [2010] FCA 1483.
Most of the significant places in the application area referred to in these reasons for judgment are indicated on the map which is Annexure B to these reasons for judgment.
The experts referred to a number of sources throughout their reports and evidence. Those sources are set out in Annexure C. The abbreviations are used in these reasons for judgment to identify the particular source.
WHAT IS THE WAY IN WHICH THESE REASONS FOR JUDGMENT ARE ARRANGED
The source of the entitlement of each of the nine contested apical ancestors’ rights to land under traditional laws and customs is examined in detail in these reasons for judgment. But there are two overarching matters relevant to the consideration of the evidence concerning each or most of those apical ancestors.
The first matter is whether the language group to which the apical ancestor is reported as belonging is determinative of rights to land. The experts agree that language group identity is not determinative of rights to land. However, these reasons for judgment need to explain why that is so.
Then, it is common ground that rights to land are acquired under traditional laws and customs by descent. However, there is a disagreement over the basis of the descent rule. The applicants contended that cognatic descent governs the acquisition of rights to land. The Indigenous respondents contended that patrilineal descent governs the acquisition of rights to land. That disagreement is the secondary preliminary issue addressed in these reasons for judgment.
Then, these reasons for judgment deal in turn with the evidence in relation to each of the contested apical ancestors, namely, Dougal Robinson, Puyubungu, Yanki Williams, Topsy McKenna, Fanny, Nyitji, Pontroy, Wirtinpangu and Jinapi.
These reasons for judgment conclude that, on the balance of probabilities, each of the contested apical ancestors had rights and interests in the land in the application area, and their descendants by cognatic descent inherit those rights and interests.
The next section of these reasons for judgment explain that it is only by applying the same approach to the evidence of the Indigenous respondents’ apical ancestor, Tommy Anderson, as has been applied to the contested apical ancestors that Tommy Anderson qualifies as a rights holder in the application area.
Then, these reasons for judgment address and accept the argument advanced by the State, namely, whether community recognition is a requirement for the acquisition of rights to land under traditional laws and customs.
After that, these reasons for judgment address and reject the argument advanced by the applicants’ that the Indigenous respondents should be found not to be part of the Kariyarra society because, by their conduct opposing these applications they have demonstrated that they do not adhere to the traditional laws and customs acknowledged by tha society.
Finally, the reasons for judgment address and accept the argument advanced by the applicants that the Indigenous respondents should be removed as respondents in the Kariyarra – Pipingarra application.
IS LANGUAGE GROUP IDENTITY DETERMINATIVE OF RIGHTS TO LAND
The question whether identification of people by language group is determinative of their rights to land arises because there were Aboriginal people who lived on the boundary of the application area and who belonged to different language groups. To the west are the Ngarluma and Yindjibarndi people. To the south east are the Palyku people. To the east are the Njamal people. And to the north east are the Ngarla people. Particularly on the borders between language groups there was interaction between the peoples of different language groups. Multilingualism was a feature of those communities. People living near the borders might have a language identity which did not match the landholding group identity. Thus, an Aboriginal person who had rights in Kariyarra country bordering Yindjibarndi country would likely speak both Kariyarra and Yindjibarndi. Particularly when their identity was recorded by early European anthropologists, the person might be identified as Yindjibarndi by language group. That would not, however, determine the person’s landholding group identity which might have been Kariyarra.
There was no dispute about this matter between the experts. The record of the conference of the experts stated:
1.Identity group names were not at sovereignty, and are not today, determinative of rights to country. Rather, rights to country were and are gained by reference to a structured, principled system including descent.
Opinion of Dr Palmer Opinion of Dr Clarke Agree.
Language group identity and membership of a land-holding corporation are not equivalent.
Agree.
There is evidence in the written record relating to the Claim Area of mixed estate groups, where the estate was (for example) identified as being Kariyarra / Ngaluma.
In concurrent evidence, Dr Palmer explained that identity group names are not, and were not at sovereignty, determinative of rights to country. He said:
DR PALMER: Well, my view is that they're not. And my reason for saying that is that, in anthropological terms, you're talking about two different social formations. One is an identity group, which is often founded after the language spoken by a person or by the language with which they are [sic] identify, or say they own if they don't actually speak it, and the land owning, holding group, which, in anthropological understandings, is a descent group, country group, local descent group. There are a number of different names. So the two things are, to my mind, different social formations. But, of course, the one is constituted of members of the other – that is, the language group, the identity group is composed of those who have rights in country. So there is a crossover and a relationship between the two.
The experts returned to the issue later in concurrent evidence in the following exchange which concerned whether at sovereignty land in the application area was held by specific estate groups of Aboriginal people:
DR PALMER: Well, the term "estate group" has a particular anthropological meaning in the literature which I - I discuss, and so the question is perhaps predicated on an agreement about what we mean by that. I - I prefer the term "country group" and define that in my - in my report. That is a group of people who together hold a traditional right to - to country, to an area of country, and if the question is saying, well, were the rights to country held by members of a country group, which roughly we could translate as an estate group.
I am being cautious about the term because in the literature, in the anthropological literature, an estate group has quite a narrow meaning which later anthropologists have tended to move away from. But if - if - if I'm to understand the question that way, then my view is - is yes, that members of a country group held rights to more or less defined areas of country.
MR WRIGHT: Dr Clarke?
DR CLARKE: Yes. Well, that - that's my view. It's my view that these - whether they are country groups or estate groups, they are the - they are the groups where Native Title rights were held, so not language groups.
MR WRIGHT: Yes. That being the point, yes.
DR PALMER: Yes, and I - I agree particularly with that - well, I agree with that.
In relation to border areas, Dr Clarke explained in concurrent evidence:
DR CLARKE: Well, if the estate group is - is - is mixed and it's sort of, say, on the boundary because it's got a mixture of two people from two different language groups, it's - if you're - you know, does it give - give you rights if you're in that mixed group to, for example, the entirety of all the other estates where they speak the same language of the mixed groups so - and I'm saying well, no, because language is not the thing that's determining, you know, rights to country.
[Emphasis added.]
ARE RIGHTS TO LAND ACQUIRED THROUGH PATRILINEAL OR COGNATIC DESCENT?
The second preliminary matter concerns the role played by descent in the acquisition of rights to land under traditional laws and customs of the Kariyarra people.
The applicants contended that rights to land were acquired by one generation from another by cognatic descent, that is to say, the rights were passed down either through the patriline or the matriline.
The Indigenous respondents contended in their pleaded case that under traditional laws and customs of the Kariyarra people rights to land could only be acquired, subject to one exception, by descent down the patriline. The exception applied when the father was a non-Aboriginal man. In that event, a Kariyarra person acquired rights to land through their mother. But that matrilineal descent applied to that generation alone.
The applicants’ evidence
The following Aboriginal witnesses called by the applicants gave evidence to the effect that rights to land could be acquired by descent from father or mother, Ms Irene Roberts, Ms E Williams, Mr Donny Wilson, Mr Alfred Barker, Mr Jason Alec, Ms Jeannie Snowball, Ms Selina Ali, Ms Diana Robinson, Mr Vincent Lockyer, and Ms Jenny Baraga.
References to the evidence of those witnesses are collected in [71] – [82] of the written submissions of the applicants filed 15 November 2017. It would be needlessly repetitive to set out each of those references. The following example from the cross-examination by the State of the senior woman, Ms Irene Roberts, during preservation evidence, is representative of the evidence of the applicants’ Aboriginal witnesses on the subject:
MR RANSON: Okay. And is – is there one family that has this country, where we are, or are you saying it’s - - -
IRENE ROBERTS: Well, he go - - -
MR RANSON: - - - shared?
IRENE ROBERTS: Well, the people got all of the country, you know? All of the country been before old people, where they yinta and all those sort of things. We go by that.
MR RANSON: Right.
IRENE ROBERTS: Where the father’s country is.
MR RANSON: And so is that – is that the usual rule for Kariyarra people, you go by your father’s country?
IRENE ROBERTS: We go by the father’s country, where our country is, and we stick to that place.
MR RANSON: Okay.
IRENE ROBERTS: Someone else yinta, but they go back to this way. They – they yinta.
MR RANSON: I think we – we’ve heard a little bit about your family and your brothers and your kids, and you’ve told us, I think, that your kids have got some country now, have got the same country as you?
IRENE ROBERTS: Yes.
MR RANSON: And is that – is that okay, under Kariyarra rules, that they’ve got it through you, through their mother’s side - - -
IRENE ROBERTS: Yes.
MR RANSON: - - - rather than their father’s side?
IRENE ROBERTS: From the grandfather.
MR RANSON: Okay.
IRENE ROBERTS: To – to me.
MR RANSON: So they get that - - -
IRENE ROBERTS: From - - -
MR RANSON: - - - from your father, through you.
IRENE ROBERTS: Yes. From our great grandfather, my father’s fathers, and - - -
MR RANSON: I was going to ask you about that, about your – your father’s father. That’s that fellow, Jinnabung.
IRENE ROBERTS: Jimabung.
MR RANSON: Jinnabung *(sic)?
IRENE ROBERTS: From Jimabung to my father.
MR RANSON: Yes.
IRENE ROBERTS: From my father to my brothers.
MR RANSON: Okay. So that’s – that’s that line that your country comes down.
IRENE ROBERTS: Yes.
MR RANSON: From Jinnabung and to your father - - -
IRENE ROBERTS: And - - -
MR RANSON: - - - and down to you.
IRENE ROBERTS: - - - grandmother. Grandmother start from Kangan Station.
MR RANSON: Right. Is that – that your father’s mother - - -
IRENE ROBERTS: Yes, that - - -
MR RANSON: - - - Sarah?
IRENE ROBERTS: Yes. That’s (Wirrbung).
MR RANSON: So you get – you get some country through her side, as well.
IRENE ROBERTS: Yes.
MR RANSON: Is that the same country that you get through - - -
IRENE ROBERTS: Yes, same country.
MR RANSON: - - - Jinnabung’s side?
IRENE ROBERTS: From Wodgina to Kangan.
[Emphasis added.]
Another representative example is found in the evidence-in-chief of Mr Alfred Barker as follows:
MR WRIGHT: Now, you’ve chosen to follow your mum you said as Kariyarra. Under Aboriginal law and custom, can a person choose to follow their father?
ALFRED BARKER: Well, my opinion is that a person can follow who they like. You’ve got full choice. You’ve got the parents of the mother and you’ve got the parents of the father...
[Emphasis added.]
In view of the case pleaded by the Indigenous respondents, it was surprising that none of the twelve Aboriginal witnesses called by the applicants were challenged in cross-examination by the lawyer representing the Indigenous respondents about their evidence that cognatic descent was the traditional pathway for the acquisition of rights to land.
The picture became more curious in the course of the evidence given by the Indigenous respondents themselves, and in the course of the evidence called on their behalf.
The Indigenous respondents’ evidence
Mr George Dann, one of the Indigenous respondents, gave evidence that rights to land were acquired through both father and mother and that he had rights in Kariyarra country through his mother. The following exchange occurred in cross-examination:
MR WRIGHT: Mr Dann, I have some questions for you. Your father is an Aboriginal man; is that right?
GEORGE DANN: Yes, that's correct.
MR WRIGHT: And he's from the Nyul Nyul group?
GEORGE DANN: Yes.
MR WRIGHT: Up in the Kimberley?
GEORGE DANN: Yes.
MR WRIGHT: And do you have rights in your father's country?
GEORGE DANN: Only as a - as a family I have. I can go on the land, yes.
MR WRIGHT: Yes.
GEORGE DANN: That's - that's about it.
MR WRIGHT: And could you call yourself a Nyul Nyul person?
GEORGE DANN: No, not exactly but I - I take my father's what you call it as well because all the family up there recognises as one of the family because the Dann family are very big up there.
MR WRIGHT: Yes.
GEORGE DANN: And we - we are one of the family like members for anywhere else.
MR WRIGHT: Yes. And you obviously claim rights through your mother's side of the family in Kariyarra country?
GEORGE DANN: Yes.
MR WRIGHT: And so is that a matter of choice that you could choose to follow your mother more than you follow your father?
GEORGE DANN: My father left there when he was over 16 years old, Beagle Bay Mission. He came down here and he only went back to visit some of the family but as to live, no; he stayed in Port Hedland. But I follow my mother because we had been here all our life.
[Emphasis added.]
Mr George Dann denied the proposition pleaded in the Indigenous respondents’ Amended Statement of Issues, Facts and Contentions filed 9 May 2016 that the primary connection to land was through a Kariyarra father. In other words, he denied the very case propounded on his behalf.
Mr Joseph Kickett is a grandson of Dan Todd. His mother was Debra Todd and his father was Ike Kickett, a Noongar man. Mr Kickett claimed rights to Kariyarra country which was thus necessarily through his mother. He explained in evidence-in-chief:
MR RUMSLEY: … So what is it that you would have to have to be able to say that country belonged to you or you belonged to country?
JOSEPH KICKETT: Probably old people like through blood.
MR RUMSLEY: So - - -
JOSEPH KICKETT: Blood relations, yeah, connection there; knowledge from the old people.
MR RUMSLEY: So your blood relations from old people who are Kariyarra?
JOSEPH KICKETT: Yeah.
Ms Shirley Lockyer’s mother, Molly Todd, is a Kariyarra woman, and her father was George Mason, a non-Aboriginal man. Molly Todd’s mother, Mary Yinbung, was Kariyarra and her father, George Todd, was a non-Aboriginal man. Mary Yinbung’s parents, Tommy Anderson and Sally, were both Kariyarra. Ms Shirley Lockyer explained the descent rules in the following passage in cross-examination:
MR WRIGHT: And he also talked to you, you said, about how you get rights to country through the bloodline.
SHIRLEY LOCKYER: Yes.
MR WRIGHT: Is that right?
SHIRLEY LOCKYER: Yes.
MR WRIGHT: And when you said "through the bloodline", can that be through the mother's line or the father's line?
SHIRLEY LOCKYER: Only if you got two - two parents that are full - you can either have the blood from - you can make a choice between one or the other if you've got the two.
MR WRIGHT: Yes. So if they're both Aboriginal people.
SHIRLEY LOCKYER: Yes, where they're both Kariyarra people.
MR WRIGHT: Both Kariyarra people?
SHIRLEY LOCKYER: People, yes.
MR WRIGHT: So you can choose to go, what, follow - well, you'd be Kariyarra through both then, wouldn't you?
SHIRLEY LOCKYER: Well, if - if - in our case it would be but we chose to follow our great grandfather.
MR WRIGHT: Yes.
SHIRLEY LOCKYER: Because he [Uncle Jimmy Todd] was the main - main man.
MR WRIGHT: Yes. So sorry, coming back to that issue. If you've got let's say an Aboriginal parent who's Kariyarra and another one that's Njamal, for example, can you choose to follow the Kariyarra or the Njamal side?
SHIRLEY LOCKYER: I've never been in that predicament but that's up to the person who - whoever choose - where they choose to go to.
MR WRIGHT: Right.
SHIRLEY LOCKYER: Yeah.
MR WRIGHT: Now - - -
SHIRLEY LOCKYER: But - but I'm only speaking for our case which is patrilineal which is the male line.
MR WRIGHT: Well, it's not in your case is it because you follow your mother?
SHIRLEY LOCKYER: Well, our mother follows her mother plus her father because we all married white people so we had to go back through that way.
MR WRIGHT: Yes. But under Kariyarra law people can choose which side they follow?
SHIRLEY LOCKYER: Well, that's your interpretation but it's not ours.
MR WRIGHT: Right. Well, I thought you agreed with me that for other families, they can make that choice?
SHIRLEY LOCKYER: If they were Kariyarra.
MR WRIGHT: If they were Kariyarra.
SHIRLEY LOCKYER: If they were.
MR WRIGHT: Yes. So if they - for other families, if they had one parent who was Kariyarra and another parent who was some other group, they could choose to follow the Kariyarra side?
SHIRLEY LOCKYER: Like I was saying, if they were Kariyarra.
MR WRIGHT: Yes.
SHIRLEY LOCKYER: Yeah.
[Emphasis added.]
The applicants submitted that where Ms Shirley Lockyer referred to patrilineal descent she was referring to the fact that in her family they trace their descent back to the male ancestor Tommy Anderson. She was not saying that Kariyarra people could only acquire rights through the patriline, but that her family did so in fact. Her evidence was that Kariyarra people could choose to follow either mother or father. Her point seems to have been that the choice had to be made by a person who was Kariyarra. That was probably a reference to the Indigenous respondents’ case that none of the applicants’ apical ancestors were Kariyarra. Although the evidence of Ms Shirley Lockyer is not entirely free from confusion, the Indigenous respondents’ lawyer did not take issue with the construction placed on it by the applicants. I accept that Ms Shirley Lockyer’s evidence supports the applicants’ case that rights to land are acquired under traditional law by following either the father or the mother.
Ms Mary Attwood, another of the Indigenous respondents, agreed in cross-examination that rights to country could be acquired from either the mother or the father. The following exchange occurred in cross-examination:
MR WRIGHT: … Under your understanding of Kariyarra law and custom, can a person obtain rights in their mother's country and their father's country?
MARY ATTWOOD: Well, that's what the old people told us.
[Emphasis added.]
She said that she had rights in Nyul Nyul country coming from her father and rights in Kariyarra country coming from her mother, Molly Todd. Ms Mary Attwood told that her uncle, Norman Todd, married Eileen Dhu, a Banjima woman. Their children identified as Banjima. Ms Mary Attwood said that the children were also entitled to claim Kariyarra identity.
Ms Patricia Mason, another of the Indigenous respondents, gave evidence-in-chief about what she was told by her elders concerning how a person can belong to country. She said:
They told you if you’ve got to be a Kariyarra and you’ve got to have bloodline and be a biological descendant, and you’ve got to have – you’ve got to have the knowledge of the land and you’ve got to be people of that land.
Also, in evidence-in-chief, Ms Patricia Mason said that her claim to country goes through her mother.
Counsel for the applicants took up the question of acquiring rights to land. In the following lengthy but important exchange Ms Patricia Mason explained her understanding and the basis for it as follows:
MR WRIGHT: Yes, Ms Mason, you talked about getting rights in Kariyarra country through the bloodline, is that right?
PATRICIA MASON: That’s exactly right.
MR WRIGHT: And is it your understanding of Kariyarra law and custom that you can – a person can get rights in Kariyarra country if they’ve got a Kariyarra mother or Kariyarra father?
PATRICIA MASON: If they are Kariyarra.
MR WRIGHT: Yes. So, if the mother or father is Kariyarra, then a person can be Kariyarra through that mother or father?
PATRICIA MASON: Just – well, if you want to know how I – because I think you’ve got to get to that question, Mr Wright. How do I define a right? Understanding native title was very challenging in my sense because it wasn’t really up to speed in WA in 2006 when I come back to here, and I didn’t know the clarification that was actually to find people of what method they was using to define that you had a right.
And when I done a little bit of research, I found that it came from the apical ancestor that you generated, or came from. So, in our family it came from Tommy Anderson. And my grandmother was the first born, so it was passed to my grandmother onto her children.
MR WRIGHT: Yes. Yes.
PATRICIA MASON: And we chose to go that way, our family.
MR WRIGHT: Yes.
PATRICIA MASON: And it’s up to the choice of others how their cultures and laws, and whatever they come from, define themselves to follow. But in the essence of Kariyarra, it was the distinguishment of who gave you that authority of who to follow? And my grandfather gave it to my grandmother.
MR WRIGHT: You mean your great grandfather?
PATRICIA MASON: Yes, my great grandfather, Tommy Anderson to Mary Yinbung.
MR WRIGHT: Yes.
PATRICIA MASON: And that’s how we could have went to the other side of our great grand Sally, but we had very little information to track back because when we was told to find a connection, the only connection we found in regards to this country was Tommy Anderson because he was a very, very powerful man, and he upheld his law. So – and he got in a lot of trouble with the police. So, that’s how we actually defined ourselves as being from this land because every time he got in gaol, he’d return to the Pilbara and Port Hedland. He didn’t go anywhere else. So, it was easy for us to get a descendant connection through Tommy rather than to Sally because I wouldn’t be sitting here now after nine years. I’ll be still sitting here in 18 years’ time.
…
MR WRIGHT: Alright. Well, look, just coming back to the question then I was asking you about following, so people – someone can be Kariyarra if they follow the mother’s line or the father’s line, and I think you’ve agreed with that?
PATRICIA MASON: If they were Kariyarra.
MR WRIGHT: If they were Kariyarra, yes.
PATRICIA MASON: And that was the Kariyarra law, I think would be just –but in the Kariyarra law, if you go back to the writers – this is from my research. Sorry about this, Mr Wright.
…
MR WRIGHT: Sorry. If you confine your answers to what you were taught by your parents or, sorry, by your mother or your uncles, did they ever teach you about how a person can become Kariyarra, any particular rules around that?
PATRICIA MASON: If you’re a first born and you come from two Kariyarra people, like my Nana, for instance, then she – he would pass the land onto her. If she was a man, he would pass the land onto him. But there’s certain laws around that. If my nana was not allowed to marry another tribal man. My nana wasn’t allowed to marry another tribal man. My nana was only allowed to marry a white man because she would have lost the land. Does that make sense?
MR WRIGHT: Alright, just – well, you’re explaining it to me. That’s Mary Yinbung you’re talking about is it?
PATRICIA MASON: Yes.
MR WRIGHT: Okay. So, is it fair for me to say that you don’t really know about any rules that might apply to other people? You just know about what’s happened in your family?
PATRICIA MASON: Well, that’s what this court is about. I’m not about other people, I’m about my family getting recognised because these people have been – had rights over the last – since native title started in ’98. So, we bought the cause. We bought this action to identify us as a family, your Honour.
MR WRIGHT: Now, do you remember doing some work with Dr Clarke who’s the anthropologist who is helping your family or engaged on behalf of your family?
PATRICIA MASON: Yes, I have spoke to Mr Clarke and we – I wanted to get someone independent of WA, and finally I actually linked up to try to get someone from outside, and I met Mr Clarke and I’ve actually had many conversations with Mr Clarke.
MR WRIGHT: And did you tell Mr Clarke that for a person to be Kariyarra, they had to follow primarily along the male line, and that it was only in a case where the father was not an Aboriginal man that a person could be Kariyarra by the mother?
PATRICIA MASON: Well, to me – or sorry, I’m getting a bit close. To me, in essence – essence of us, it applies. In the essence of us it applies, okay?
MR WRIGHT: Yes.
PATRICIA MASON: Because we’ve already been proven, you know what I mean? We know we are Kariyarra.
MR WRIGHT: Yes.
PATRICIA MASON: And that was evident in the last hearing. But in the essence of a law, you have got to get it from a Kariyarra apical ancestor like before the time of disruption to actually be a Kariyarra person. So, you must have a strong lineage to get that because you can’t say you come in and you was a custodian and then it gave you a right to being responsible for land, or you can’t say that you was born here and that gave you a right. Or you can’t say that you was married in and that gave you a right. So, the different clarifications of Kariyarra means you are a Kariyarra, you come from a Kariyarra, and you belong to Kariyarra country.
MR WRIGHT: Okay. So, to come back to my question about Dr Clarke, you didn’t explain to Dr Clarke that to be – or you didn’t tell Dr Clarke that to be a Kariyarra person you had to primarily follow along the male line?
PATRICIA MASON: Yes, well, isn’t it evident that the definition they used to – the white man uses, patrilineal or matrilineal?
MR WRIGHT: Yes.
PATRICIA MASON: Well, patrilineal – patrilineal in a sense to us is the man line isn’t it? So, in a matrilineal, isn’t that a follow your mother?
MR WRIGHT: Yes.
PATRICIA MASON: Is that what you’re saying?
MR WRIGHT: Yes.
PATRICIA MASON: Well, in us we follow patrilineal, so we are the people that – we are Kariyarra and have been identified as Kariyarra, and you agreed and Mr Ranson agreed upon it when you asked the question in Hedland. So, in the essence of thing, I think it’s only fair to say that you’ve got to be patrilineal.
MR WRIGHT: And that’s because you ultimately trace your descent from Tommy Anderson, is that - - -
PATRICIA MASON: That’s exactly right. If these people had a law – well, if they’ve got to follow the law, culture and customary law, the man carries the law more so than the woman.
MR WRIGHT: Right.
PATRICIA MASON: A woman participates, but a man is the holder of the law on the land.
MR WRIGHT: Okay. And is it right to say that you explained to Dr Clarke how it worked in your family, but you didn’t explain to him how it might work for other families?
PATRICIA MASON: Well, if it might – well, if that was the essence of all, well, you had – we had no choice. If these people got a mother that come from a father that’s Kariyarra, if – just say - - -
MR WRIGHT: Yes, yes.
PATRICIA MASON: - - - if – I just put someone on the floor there. Can I somebody?
MR WRIGHT: Yes.
PATRICIA MASON: Hypothetically - - -
MR WRIGHT: Yes.
PATRICIA MASON: - - - if Amy Usher is Kariyarra woman, and you are her father, Mr Wright - - -
MR WRIGHT: Yes.
PATRICIA MASON: - - - and you’re a Kariyarra, she can claim Kariyarra because you come from Kariyarra. If her mother was a Kariyarra, hey, and she claims, then the mother would make a choice who that person follows.
MR WRIGHT: Right.
PATRICIA MASON: But a majority of the tribes, the tribes around here, it’s the man’s decision who you follow and not the woman.
[Emphasis added.]
Then, in cross-examination Ms Patricia Mason explained that the father of her children is a Ngarlawanga man and that they chose to follow their mother and identify as Kariyarra.
The central point about descent which emerges from Ms Patricia Mason’s evidence is that descent must come from a Kariyarra person. In saying that, Ms Patricia Mason was reflecting her belief that the applicants were not Kariyarra people but were outsiders from other tribal groups who had come in from the desert to the east or had come into the area, particularly Yandeyarra, at the time of the strike of Aboriginal station workers seeking better pay and conditions in 1946 lead by Don McLeod. Her focus was on showing that people who were not Kariyarra could not claim rights in land. She did not assert that a Kariyarra person could not claim by descent through the matriline. Indeed her children claim in that way. In the one answer in which Ms Patricia Mason used the word patrilineal she agreed that it was meant to describe her family’s choice to trace descent back to Tommy Anderson. The applicants’ written closing submissions advocated that approach to Ms Patricia Mason’s evidence concerning descent. The Indigenous respondents’ written and oral submissions did not suggest an alternative view of that evidence.
It can thus be seen that there is no support for the Indigenous respondents’ case concerning the rules of descent in the evidence of the Aboriginal witnesses either from those called by the applicants or, astoundingly, those called by the Indigenous respondents. It may be that that explains why the lawyer for the Indigenous respondents provided no analysis of the evidence on this issue either in oral or written submissions.
The expert evidence
The Morton report was the first report in time. However, Dr Morton did not take part in the conference of experts and did not give oral evidence. The parties agreed that his report would be tendered in evidence. As the main contest was between the views of Dr Palmer and Dr Clarke, it is convenient to deal with their evidence first, and at the end, to consider the Morton report. Before turning to the evidence of Dr Palmer, Dr Clarke and Dr Morton an outline of their qualifications and experience will be set out.
Dr Palmer commenced work as an anthropologist in the Pilbara in the 1970s as a research officer with the Department of Aboriginal Sites in the Western Australian Museum. Dr Palmer holds a PhD from the University of Western Australia. In the late 1970s he undertook research as part of his doctoral study into the Njamal and Ngungamarta people living in Yandeyarra. At that time Dr Palmer also worked with some Kariyarra people and included an account of the customary system of rights to land in the region.
In the 1980s Dr Palmer was employed as head anthropologist by the Northern Land Council, and later in the 1980s as head of research by Australian Institute of Aboriginal and Torres Strait Islander Studies.
From the start of native title litigation, Dr Palmer has been involved in some of the major cases including Timber Creek, the single Noongar case, Rubibi, Ngarla, Jurruru, and Banjima as an expert conducting field work, compiling reports and/or giving evidence. A number of those cases involved work in the Pilbara. Dr Palmer’s CV lists an impressive collection of books, articles, reviews and papers produced over his career of over 40 years.
Dr Clarke holds a PhD from the University of Adelaide awarded in 1995 in the area of social anthropology and human geography. From 1982 until October 2011, Dr Clarke was employed by the South Australian Museum. He held various curator positions and in 2000 was appointed Head of Anthropology / Manager of Sciences. Initially at the Museum, he worked in the Aboriginal ethnographic collection. His research interest was Aboriginal use of plants as food, medicines and materials for making artefacts. That interest broadened out to the Aboriginal perception and use of land which was the subject of his doctoral thesis. He has continued to publish on the subject of Aboriginal relationships with flora. During his employment with the Museum in 1998 – 2000, he curated the Australian Aboriginal Cultural Gallery Project which he said provides the most comprehensive national survey of Aboriginal culture. As an anthropologist employed by the Museum he was called upon to answer enquiries from government and others about Aboriginal cultural issues. He left the Museum in order to work as a consultant anthropologist. In that capacity he has worked on native title cases in the Barkly Tablelands in the Northern Territory, in the West Coast and Eyre Peninsula of South Australia, in the rainforest region of northern Queensland, and in the present case. He has also done work for several State museums for the Return of Indigenous Cultural Property Program, and for the Northern Land Council in relation to ethnographic clearances for mining sites.
Dr Morton is also a highly qualified and experienced anthropologist. He holds a PhD from the Australian National University in social anthropology awarded in 1986. Since 1981 he had engaged in field work with Aboriginal communities in the Northern Territory, South Australia, Victoria, New South Wales and Queensland relating to heritage protection, land rights claims and native title cases. He was engaged by the Court in these proceedings to investigate and report on the traditional laws and customs concerning rights to land of the Kariyarra people in order to try to assist the parties to identify the people entitled to native title rights in view of the differences of opinion within the group on that matter.
The expert evidence explained the nature of landholding in the application areas. At sovereignty, under traditional laws and customs, land was held by small family groups which related to a larger tribal grouping which was not itself a landholding group. The pattern of landholding is an issue which arises in the later discussion about the extent of the Tommy Anderson estate. It is convenient to include the expert views about landholding in the area at this point in these reasons for judgment because it appeared by way of introduction, to and in the course of the discussion by the experts of, the descent rule.
The Palmer 2013 report is a comprehensive connection report of 339 pages, excluding appendices, which addresses all aspects of Kariyarra society and its traditional laws and customs. Dr Palmer spent 71 days in producing the report including a review of the literature and 38 days of field work. He had a familiarity with the Kariyarra people and the area from his 1970s doctoral work in Yandeyarra. The result is a model of an expert anthropological report for native title purposes. It is well researched, comprehensive, tightly reasoned and the views expressed are balanced. In particular, Dr Palmer acknowledged that many of the views expressed required a judgement which was contestable but he nonetheless offered a view based on his expertise accepting that other views were available. That approach is of considerable assistance to the Court. Of present interest is the way in which the report dealt with the traditional laws and customs concerning the acquisition of rights to land by descent.
Dr Palmer surveyed the writings from around the early part of the 20th century from observers of the Aboriginal people of the general area. Those observers were explorers, pastoralists, bureaucrats and Daisy Bates. Dr Palmer related the observations made about Aboriginal presence and cultural practices at the time.
Then, in chapter 3 of the report, Dr Palmer examined the work of A R Radcliffe-Brown which was the first investigation of Aboriginal culture in the area by a trained anthropologist. It was also important because Radcliffe-Brown focused attention on the Kariyarra people. Radcliffe-Brown was appointed to the first chair of anthropology at the University of Sydney in 1926, a post he held until 1931. Radcliffe-Brown carried out field work in Western Australia in 1911. As a result, in 1913 he published a description of three tribes of Western Australia, one which was the Kariyarra (Radcliffe-Brown 1913). Then, in 1930, he published an account of the social classification of Australian tribes. That work repeated some of his earlier materials on local organisation and expanded his views of Kariyarra social organisation which he called the Kariyarra system.
As to Radcliffe-Brown 1913, Dr Palmer said that:
It has become a citation classic amongst anthropologists because of its succinct statements relating to local and social organisation as well as its comparatively early date in the history of Australian Aboriginal studies.
Dr Palmer then related Radcliffe-Brown’s observations and views about the landholding by the Kariyarra people as follows:
95.Members of the group were living on pastoral properties where they also worked, a situation that had been in place for about 50 years. He considered that their numbers were steadily decreasing and only some 80 or 90 had survived to the time of his visit (ibid, 144). They were distinguished from their neighbours by possession of a name (that is to say, Kariyarra), a language and a 'defined territory' (ibid., 144). The Kariyarra had neither chief nor government (ibid., 144). Fights and disputes were localised and there was no unity in warfare. Radcliffe-Brown estimated the Kariyarra to occupy approximately 3,500 to 4,000 square miles (ibid., 145).
96.Radcliffe-Brown understood that the tenurial system was based on, 'Local groups, each with own defined territory' (ibid., 145). Membership of a local group was determined by descent in the male line. The country of a local group was identified by reference to an important place or places within the country of that group (ibid.). He prepared a map of these groups which he numbered I to XIX. However he stated that his map on which he represented the local groups of the Kariyarra was not complete, 'that is to say, it does not show all of the local groups formerly existing' (Radcliffe-Brown 1913, 145).
Figure 3.3: Radcliffe-Brown’s map of the ‘Kariera Tribe’ (1913)
97.Rights of ownership within the local group area were exclusive to members of the local group. He wrote,
The country of a local group, with all its products, animal, vegetable, and mineral, belongs to the members of the group in common. Any member has the right to hunt over the country of his group at all times. He may not, however, hunt over the country of any other local group without the permission of the owners. A single exception to this rule seems to have existed where a man was following a kangaroo or emu and it crossed the boundary into the country of his neighbours, when he might follow it and kill it. Hunting, or collecting vegetable products on the country of another local group constitutes an act of trespass and was in former times liable to be punished by death. The importance attached to this law seems to have been so great that offences against it were very rare. In the early days of the settlement of the whites in the country of this and neighbouring tribes, the squatters made use of the natives as shepherds, and I have been told on several occasions that they found it at first impossible to persuade a native to shepherd the sheep anywhere except on his own country. I could not find any evidence of the individual ownership of any part of the soil or any of its products. The whole territory of the group and everything on it seem to belong equally to all the members of the group.
98.Despite these strictures, Radcliffe-Brown noted that visiting and sharing of food was common (ibid., 146-7) such that there was 'a perpetual shifting to and fro both within the country of the group and from one group to another' (ibid., 147). Radcliffe-Brown also observed that the language identity of local groups was not always singular (ibid., 160-161). Some for example were designed, 'half Ngaluma, half Kariera' He observed, 'The fact is that one tribe is not clearly marked off from its neighbours but there are often near the border a number of local groups that occupy an indeterminate position' (ibid., 161 ).
99 Local groups were exogamous so a man had to gain a wife from a local group different to his own. The wife did however retain rights to her own country.
A woman seems to have retained a sort of right over the country of her birth, so that a man and his wife were generally welcome to visit the wife's local group whenever they wished. A man seems also to have a sort of secondary right over the country of his mother, that is the country to which she belonged by birth. In a large number of cases this was the same as the country of his wife. In both cases, however, it seems to have meant no more than that a man was sure of a welcome in the country of his wife or his mother.
[Emphasis added.]
Dr Palmer next described the views of Radcliffe-Brown about the Kariyarra kinship system and how they impacted on landholding as follows:
104Radcliffe-Brown understood the kinship system of the Kariyarra to be characterised by a process of proper relationship founded on behaviour and obligation. Moreover, it was no abstract system, but one founded upon relationships of consanguinity. He saw this system as fundamental to local organisation, which led him to return to a consideration of the local groups discussed in the earlier part of his paper.
Each local group, however, that is, each of the local subdivisions of the tribe, consists of members of one couple only. Thus one local group consists of men and women of the classes Karimera and Burung, while another consists of Banaka and Palyeri men and women.
Then, in an important paragraph Dr Palmer explained:
105Radcliffe-Brown then sought to refine his definition of the local group which he proposes to call a 'clan' in future publications.
I propose in this and future publications to use the word 'clan' to denote a social division of this kind, of which the Kariera local group is an example. A clan by this definition consists of a body of persons who are closely related to one another in one line (that is, either in the male line or in the female line) and who are clearly marked off in some way from the similar divisions of the same society. In the Kariera tribe we have clans with descent in the male line. Each clan includes a number of men who are, by the relationship system, father's father, father, brother, son, or son's son to each other. Each clan is marked off from every other by the possession of its own territory, and as we shall see later, by other features also.
Dr Palmer next explained in the following passages that in 1930 Radcliffe-Brown revised (Radcliffe-Brown 1930) but did not substantially change his views.
109… In 1930 he published a paper which sought to define the social organisation of Australian tribes which, as the title suggests, treated many groups in addition to the Kariyarra (Radcliffe-Brown 1930). In this he generalised from the particular, attempting to set down a definitive account of Australian systems of social and local organisation. He introduced a new term, 'horde' to his account which he hoped would clarify what he meant by use of the word 'clan'.
The horde is a small group of persons owning a certain area of territory, the boundaries of which are known, and possessing in common proprietary rights over the land and its products - mineral, vegetable and animal. It is the primary land-owning or land-holding group. Membership of a horde is determined in the first place by descent, children belonging to the horde of their father.
Radcliffe-Brown 1930, 35.
110 He sought to clarify membership in reality ('an existing group at any moment') by accommodating wives of local group members.
The horde, therefore, as an existing group at any moment, consists of (1) male members of all ages whose fathers and fathers' fathers belonged to the horde, (2) unmarried girls who are the sisters or daughters or son's daughters of the male members, (3) married women, all of whom, in some regions, and most of whom, in others, belonged originally to other hordes, and have become attached to the horde by marriage.
Ibid., 35-6.
111Later and in the same article (ibid., 59) he attempted to distinguish the horde from the clan. His initial proposition was that for the Kariyarra, 'all the men of any given horde belong to a single line of descent' (ibid., 59). Since the horde is based on descent ego's father's horde is different to ego's mother's horde. Recognising perhaps that the two hordes would then constitute a single social unit (the family or group that lived together on a daily basis) he suggests using the term 'clan' for the residential group. His conclusion in this regard is however not evident.
We can therefore say that in the Kariera tribe, connected with each horde there is a clan. I have defined a horde as consisting of all men born into the horde together with their wives and unmarried daughters. The clan connected with the horde consists of all persons born in the horde. The male members of the clan all remain in the horde from birth to death. The female members of the clan remain with the horde till they are married and then are transferred to other hordes.
Ibid., 59.
Dr Palmer then drew attention to the distinction made by Radcliffe-Brown between the tribe and the horde, and stated:
113.… Radcliffe-Brown understood the term 'tribe' to refer to a group of people who spoke the same language and who shared common customs.
Throughout Australia hordes are grouped into larger local or territorial units, which will be spoken of as tribes. The primary mark of a tribe is that it consists of persons speaking one language, or dialects of one language. Its unity is primarily linguistic. The name of the tribe and the name of its language are normally the same. So that the easiest way to ascertain to what tribe an individual belongs is usually to ask him what language he speaks. In addition to this unity that comes from a common language there is also a unity of custom throughout the tribe.
Ibid., 36.
Dr Palmer made reference to Radcliffe-Brown’s view that the tribe was not the landholding body. Dr Palmer stated:
117In terms of proprietary interests in land Radcliffe-Brown provides a corrective to a common misconception. He observed that while, 'a tribe is commonly spoken of as possessing a certain territory' and was 'regarded as a land-holding group' such depiction was 'not quite accurate ... so far as Australia is concerned' (ibid.). The source of the error lay in conflating the tribe with its constituent local groups. The 'tribe' could be regarded as owning land,
... only because it consists of a certain number of hordes, each of which has its territory. The territory of the tribe is the total of the territories of its component hordes.
In chapter 3 of the Palmer 2013 report, Dr Palmer undertook a critical assessment of the work of Radcliffe-Brown. Part of that assessment concerned the issue whether patrilineal descent was the only path to the acquisition of rights to land.
Dr Palmer argued that Radcliffe-Brown was not always clear about how he distinguished the horde from the clan and that it was likely Radcliffe-Brown conflated the idea of land-owning and land-using groups employing the terms horde and clan without differentiating their intended meaning. Dr Palmer said that partly as a response to that lack of clarity, a debate ensued among anthropologists regarding Aboriginal customary local organisation in Australia. Dr Palmer set out the view of Stanner (Stanner 1965) and Berndt (Berndt 1959) on the issue and continued:
142While the debate about local organisation has not been fully resolved, a number of important issues have became generally accepted, building on and modifying the original orthodox proposition that a patrilineal descent group (of one sort or another) comprised the basis of the land owning unit. Radcliffe-Brown postulated that there had to be a normative system of laws that regulated the rights of a horde (local group) to its country and to each other (Radcliffe-Brown 1952, first published in 1935). He considered such an arrangement to rely upon a principled system of patrilineal succession that would avoid 'unresolveable conflict'. He thus sought to establish that unilineal systems had a functional origin which if absent would have dysfunctional consequences (ibid., 46).
143Subsequent studies have demonstrated that patrilineal descent may not have been the only means of gaining rights to country. Evidence produced as a result of land claim research has shown that unilineal descent as the sole basis for owning land may not have been the case everywhere, particularly for the less well-watered areas. In addition, there was evidence that rights to country could be gained through a number of ways, patrifiliation being just one (Peterson 1983, 137-8; Stanner 2001, 112-114). Myers, writing of the Pintupi of central Australia, showed that rights in estates were multiple and perhaps differentiated as to degree rather than singular in relation to one patri-estate only (Myers1986, 138-140). These writers are in broad agreement that there are several different means of gaining rights to country, including Radcliffe-Brown as I discuss below (see paragraph 146 and following).
144 It is likely that in arid regions, where maximum flexibility was required to ensure continuity of inheritance in an uncertain environment, more open systems were to be found, favouring multiple pathways of descent and the acquisition of rights to country through means other than descent (Keen 1997, 66). Other writers have pointed out that such flexibility is likely to have been common in many areas, including those outside of what has been generally identified as the Western Desert cultural bloc (Sutton 1999, 15-19, 26-32; Keen 1997). However, there appears to be much variation in the ethnography (cf. ibid., 73) and perhaps the best conclusion is that no model fits all.
[Footnotes omitted.]
Then, in a passage of central importance to this issue, Dr Palmer stated:
146In his 1913 article (1913, 144-147), Radcliffe-Brown had stated that rights inured in the patriline with 'some sort of a secondary right' to the country of the mother. He wrote, 'A man seems also to have a sort of secondary right over the country of his mother, that is the country to which she belonged by birth. In a large number of cases this was the same as the country of his wife. In both cases, however, it seems to have meant no more than that a man was sure of a welcome in the country of his wife or his mother' (ibid., 147). Later (1952) Radcliffe-Brown elevated these secondary rights to 'quite important rights'.
It is important ... to recognise that in this instance, and, as far as we know, in all instances of patrilineal succession, some rights are also transmitted through the mother. Thus in the Kariera tribe a man has certain quite important rights over his mother's horde, over its individual members, and over its territory.
Radcliffe-Brown 1952, 36.
147Radcliffe-Brown was of the view that members of a country group were required to seek permission to use another country group's country, or be invited into it (see paragraph 96 and 97 above). This developed from his understanding that a country group was composed of those tracing common patrifiliation, whose members exercised rights in a more or less defined estate. However, if a man had rights in his mother's country he also had rights in the country of another patrilineal group's country. Should he gain rights to country through other means, as later studies have shown to be the case in many areas of Australia (see paragraph 143 above) then he might exercise rights in other estates too. Members of the residence group, drawn from a number of different country groups would together exercise rights over many different countries through these various pathways. Just how the allocation of rights to different areas of country might be actuated would depend upon the manner whereby rights were asserted and membership of the land-using group. This points to a situation where rights to country were multiple rather than singular and would have been exercised across a wide range of country comprising the home estates of a number of different descent groups, as Stanner reported (see paragraph 139).
148 Radcliffe-Brown's particular characterisation of rights inuring to a single patriline within a sole estate is unlikely to have been the case in practice. Certainly subsequent researchers observed a more complex situation. For example, R. and M. Piddington, who worked amongst the Karajarri south of Broome, wrote of the coastal Nadja Karajarri that Radcliffe-Brown's rule of exclusive ownership of the horde did not apply to their field data. They wrote,
this rule does not exist. Certain small exogamous groups exist, but they lack the solidarity which characterises the normal Australian horde; small parties composed of less than a dozen individuals from any horde may go on hunting expeditions lasting several months, over the territory of any other horde, without asking permission of the owners, who would not object.
M. and R. Piddington 1932, 351
149 Elkin disagreed with R. and M. Piddington suggesting that since the Karajarri had been 'under white influence for some sixty years' this made reconstruction 'difficult' (Elkin 1933, 279) and that failure to ask permission was due to the, 'decadent condition of this part of the tribe' (ibid., 280). Elsewhere I have discussed Elkin's own field data in detail and concluded, based on my reading of his materials, that he demonstrated in fact that,
Patrifiliation was an operative principle in the descent of rights to country, but it was not the only one. There was no neat fit between an individual's totemic affiliations and his or her father or father's estate. A singular patrifiliative totemic principle did not govern the descent of rights in an estate.
Palmer 2010c, 88.
150 P. Kaberry worked in the Kimberley region a few years after R. and M. Piddington's work further to the west. She questioned Radcliffe-Brown's justification for accepting patrifiliation as a given, based on economic determinants (Kaberry 1939, 136-7). She cited other researchers (Stanner and Warner) to support her view that a man might live in his mother's country, presumably as of right, as well as his father's (ibid., 137). The real tie to patri-country, she argued, was a result of ritual and spiritual ties that develop as a result of a man's relationship with his father (ibid., 138). Kaberry also distinguishes rights in at least two other countries; country (or area) of birth and mother's country (ibid., 31, 137; 194-5).
151 The evidence supports the view that these researchers had found field data to support the conclusion that proprietary interests in country were multiple and complex, depending on a number of relationships. Permission and the exercise of rights were best understood in the context of the relationships that legitimated their expression. The ideal of the patrilineal descent group whose members exercised exclusive rights within a single estate was not a satisfactory or adequate representation of the ethnographic reality.
[Footnotes omitted. Emphasis added.]
Dr Palmer concluded at [239] that at sovereignty rights to land were acquired by Kariyarra people by descent either through the patriline or the matriline.
In chapter 8 of the Palmer 2013 report, entitled Accounts of Land Ownership at Yandeyarra, Dr Palmer recounted his doctoral work in Yandeyarra in the 1970s and also his work in 1980 with Penny Taylor for the Department of Aboriginal Studies of the Western Australian Museum to identify sacred sites within the Kangan Pastoral lease. Dr Palmer was careful to explain that most of his work in Yandeyarra was with the immigrant population which greatly outnumbered the local owners. The focus of the work was how the immigrant groups managed to assert dominance in community and ritual matters when living in someone else’s country. Dr Palmer explained:
251 Morton points out that in my research the Kariyarra did not figure very prominently (Morton 2012, 64) and of the six languages groups I recorded at Yandeearra (Palmer 1981b, 22) the Kariyarra were 'conspicuous by [their] absence' (Morton 2012, 64). My account of local organisation at Yandeearra was developed from those with whom I worked: for the most part members of the immigrant community, although some of my informants were locals. An exhaustive account was not possible given that some of the local owners were absent from Yandeearra and so not readily available to me for interview. I then set out to relate the account of local owners to the problems of how immigrant groups managed to assert dominance in community and ritual matters when living in someone else's country (Palmer 1981b, 415-6). My account of local owners was then not one provided in its own right but as necessary contributory data brought to bear on my analyses of the ordering of social relationships.
[Footnotes omitted.]
Dr Palmer said in the Palmer 2013 report, that he wrote generally about the Aboriginal residents at Yandeyarra and he cited from his 1981 thesis (Palmer 1981b) as follows:
252 In my thesis I write generally about the Aboriginal residents at Yandeearra with whom I worked. I had, from the outset, made clear who comprised this community and it follows from the statements I have made in the preceding paragraphs that my comments were not for the most part about the Kariyarra (Palmer 1981b, 22-23). Indeed, when I set out to define 'concepts of land and land ownership' I indicated that my data was taken from Nyangamarda speakers (ibid., 333 ff), that language being commonly employed at Yandeearra at the time of my field work there (ibid, 22). I then listed key words that comprise the lexicon of the language of land and their meanings, including terms for country or estate, owner of country, stranger, spiritually potent water source, country and repository of sacred objects (ibid., 334). I go on to state that,
At Yandeearra, people inherit land from their matri-kin or patri-kin as a consequence of being born into a clan, and the inheritance of land is a birth right. Traditionally, all Aboriginal men or women inherited rights in a clan estate. The warany, or estate is, then, inalienable property, and that is one of the encumbrances of ownership.
Palmer 1981b, 335.
[Footnotes omitted. Emphasis added.]
In chapter 11 of the Palmer 2013 report, Dr Palmer addressed the contemporary state of laws and customs relating to the acquisition of land. He stated:
456The claimants with whom I worked are of the view that rights to country are gained via descent. In this regard filiative links with forebears traced through either the male or female line are regarded as equally legitimate. Simply stated then a Kariyarra person gains rights to the country of their forebears in the same way as they gain their Kariyarra identity.
Dr Palmer then quoted some of the information provided to him by Ms Diana Robinson, Kerry Robinson, Ms Irene Roberts, Mr Alfred Barker, Les Stevens and by members of the Indigenous respondents’ families at the time when he wrote the Palmer 2013 report and concluded from that material:
458 Descent is afforded by reference to either matri or patri-filiates. Such a system can be termed cognatic in that descent of rights is counted through any combination of male and female links to forebears. This is in contrast to a unilineal system of descent, where descent is traced only through the male or female line. Cognatic descent affords choice and flexibility since the range of country available theoretically increases exponentially with each new generation. Unilineal descent ensures continuity of rights to country reside only within the members of the patriline (or matri-line if it is a matrilineal system).
[Emphasis added.]
Finally, on this issue, Dr Palmer concluded that the laws and customs concerning the acquisition of rights to land by cognatic descent have continued in existence from before sovereignty until now. He said:
495 … I also think it possible that patrilineality was formerly understood to afford the most direct pathway to attaining rights to country - a shift to cognation perhaps resulting from the increase in mixed marriages (particularly between European men and Aboriginal women). However, the system is underpinned and relies upon what are in my view incontrovertible aspects of customary belief and practice, reflecting a continuity of a normative system since the time prior to effective sovereignty up to the present.
Dr Clarke was instructed to report on the connection of the Indigenous respondents to Kariyarra country. He addressed that issue in the Clarke 2015 report in five pages. Most of the balance of the substance of the report of 54 pages was directly and indirectly focused on the question whether the applicants were entitled to rights in Kariyarra country.
Dr Clarke approached that latter question in the Clarke 2015 report by outlining the migration of inland people particularly the Njamal in the 20th century and describing that they took over some of the country of the coastal people including the Kariyarra. In several succeeding sections of the report he explained the major cultural differences between the coastal people and the immigrants, namely, in initiation practices, language and kinship systems.
Having set that scene, Dr Clarke posed the following question:
Given that much cultural change has occurred in the Pilbara since European settlement, there remains the question of whether the regional land ownership system had the facility to transfer country from Kariyarra people to incoming desert peoples?
The answer is lengthy but comprised Dr Clarke’s response to Dr Palmer’s conclusion that cognatic descent was the basis for the acquisition of rights to land. The passage commencing at page 28 is as follows:
From the early anthropological work on the Kariyarra it was stated that ownership to country was primarily handed down along the patriline. Radcliffe-Brown said that:
Membership of the local group is determined by descent in the male line; that is to say, a child belongs to the local group of its father and inherits hunting rights over the territory of that group.
In spite of the importance of deriving identity from the father’s country, it was recognised that some secondary rights came through the mother. Secondary rights would enable limited access to sites and resources, but with decisions concerning country restricted to those who possessed primary rights as land owners. While Radcliffe-Brown eventually made some modifications to his rigid model of Australian Aboriginal kinship systems, he did not change his view on the primacy of the patriline in regions such as the Pilbara. He did, however, come to acknowledge a broader set of rights that existed outside the immediate concerns of the descent group (clan or his “horde”), and stated that:
… in all instances of patrilineal succession, some rights are also transmitted through the mother. Thus in the Kariera tribe a man has certain quite important rights over his mother’s horde, over its individual members, and over its territory.
The separation of power for decision-making processes relating to land is a situation that commonly occurs in Australian Aboriginal societies. For instance, in many of the communities in the Northern Territory a person is considered to be the ‘owner’ or ‘boss’ of their father’s estate, while at the same time being the ‘manager’ or ‘policeman’ of their mothers’ country. As the use of the Aboriginal English names implies, people have a different relationship with each of their parent’s country, with ‘ownership’ restricted to the father’s estate. But in the contemporary Pilbara, both Palmer and Morton have argued for the existence of a much more flexible situation for Kariyarra land ownership. Based upon his 1970s fieldwork at the Aboriginal settlement in Yandeyarra, Palmer has argued that the prevailing notion of Kariyarra ‘inheritance’ was ‘ambilineal’, that is with recognised descent from all four grandparents and ‘rights and ritual obligations with respect to land’ being traced through both father’s side and mother’s side. This would presumably allow or even encourage individuals to strategically identify with whatever cultural group gave them maximum benefit as each issue arose. These views of Palmer and Morton represent a significant modification to Radcliffe- Brown’s above statements.
Palmer stated that in Kariyarra country the ‘rights and obligations of a landowner are potential’, and could be ‘realized through a number of ritual inductions’. Apart from one case, Palmer did not attribute ownership of the estates surrounding Yandeyarra to Kariyarra people, and the sole Kariyarra owner was ‘generally regarded as being one of the last surviving members of the Gariyara [Kariyarra] socio-linguistic group’. The population living on the former mission at Yandeyarra was predominately Nyangumarta and Nyamil, and by 2005 there were over 300 people living in the settlement. While Palmer’s account of estate group relations at Yandeyarra can be seen as evidence for the continuing operation of an estate system and a wider group maintaining underlying title and allocating rights in country, it must be noted that the wider group he described was not representative of the Kariyarra people but rather composed of the ‘riverline tribes’ who were dominated by the numerically superior Nyamal people. In line with Palmer’s 1970s work, Morton in general accepted the notion of a ‘pan-riverline identity’ for modern Aboriginal people living within the Kariyarra claim area. It is this broader group that he considered to be land owners of the area, stating that ‘While Kariyarra people continued as an identifiable language group connected to a specific riverline territory, the group appears to have suffered some loss of influence in the regional system’.
During my fieldwork I was able to further investigate the contemporary situation regarding Kariyarra land ownership with the descendants of Mary Yinbung (Todd/Dann/Attwood/Mason claimant group). I found that among them there was no support for the flexible set rules for determining cultural identity as described by Palmer and Morton. The people I was able to interview were all adamant that Kariyarra descent was only ‘through the blood line’ and was without the possibility of primary links to country being made through either adoption or birth site. They asserted that cultural identity in the regional system was primarily along the male line, although in cases when the father was not an Aboriginal man it could be determined via the mother at that generation alone. While accepting that a non-Kariyarra person could have some secondary role in looking after Kariyarra country via their matriline or by the possession of ritual knowledge, it was said that such an individual could never become a land owner. They rejected outright the idea that a person had two or more choices (i.e. via parents and grandparents) when establishing their primary link to a local group and its country. For instance, they believe that if someone has a Nyamal father then they must take their primary link as being with Nyamal country further inland, even if they were born within Kariyarra country. This descendant group consider that these rules were those that their ancestor Mary Yinbung had enforced as a Senior Custodian (“Queen’) of the Kariyarra in the early 20th century. They also believe that the Creation ancestors of the inland groups, including the Nyamal, are not Kariyarra. My following comments upon each of the purported Kariyarra claimant families are framed by these notions of identity.
[Footnotes omitted. Emphasis added.]
Dr Clarke then concluded, after discussing the applicants’ family groups:
In the case of Tommy Anderson as the apical ancestor of one group of claimant families (Todd/Dann/Attwood/Mason), the available evidence provided here indicates that he was probably a Kariyarra man who was an owner of an estate within the southeast portion of the claim area. The findings of Morton and Palmer are broadly in agreement with this. The difference between my opinion and theirs is over the extent to which other family claimant groups are also connected to the Kariyarra claim area. Today, Tommy Anderson’s descendants do not accept any notion that descent groups that they identify as ‘newcomers’ to their country (i.e. the Nyamal, Yindjibarndi and Palyku) have any status as land owners within the Kariyarra claim area – specifically areas to the west of Mount Edgar, such as Wodgina, Woodstock and Abydos stations. A finding from my fieldwork was that rather than defining an ‘estate’ that they traditionally owned, the Tommy Anderson group conceive the totality of their ‘country’ to be the stations within the Kariyarra claim area where they and their ancestors lived, worked, died and were buried. Analysis of the data provided in this report supports their firm belief that their relationships with country have strong links to the classical Kariyarra culture. Robert Dann traces his detailed knowledge of Kariyarra landscape-based mythology as having come through his maternal uncles, none of who were interviewed by Morton or Palmer.
In the Palmer 2017 report, Dr Palmer responded to the Clarke 2015 report. On the question whether descent was patrilineal with limited exceptions or cognatic, Dr Palmer made three points.
First, contrary to the information Dr Clarke said he obtained from the Indigenous respondents, Dr Palmer referred to discussion he had in the course of preparation of the Palmer 2013 report, with the Todd, Dann, and Lockyer family members including the Indigenous respondents on 13 and 14 April and 11 – 13 September 2013 recorded in ten pages of his field notes. Dr Palmer then explained:
28… The matter of the descent of rights was explored in some detail and I recorded what I was told by those with whom I worked. According to the account provided to me, rights to country could be gained through either matri or patrifiliation. Two of the children of Ignatius Dann appeared to place greater priority on their mother’s country (Kariyarra) than on that of their father’s country (Nyulnyul). There was then by this account no impediment to obtaining and exercising vigorous rights within your mother’s country.
Dr Clarke was also cross-examined by Mr Ranson. Dr Clarke eventually agreed that his assertion that Tommy Anderson had succeeded to large areas of the application area was inconsistent with the existence of other groups recorded by Radcliffe-Brown.
Both the manner in which Dr Clarke gave oral evidence and the substance of that evidence gave the impression that he was making it up as he went. There is no evidentiary basis for Tommy Anderson succeeding to vacant estates. The view is speculative.
The foregoing discussion deals with the suggested way in which Tommy Anderson came to hold rights in all of the application area. It leaves the question whether there is evidence that Tommy Anderson held rights in the entire Kariyarra country without seeking to explain how that situation arose.
Such a claim is inconsistent with the nature of Aboriginal landholding as described by the early ethnographers. The expert view of Dr Morton and Dr Palmer was that the local estate system remained in operation albeit modified as a result of the history of the area. The evidence of the applicants attested to family estates in local areas. That evidence was credible and persuasive. Further, it was not challenged in cross-examination.
Then, the Indigenous respondents who gave evidence did not make claims to all of the country in the application area. They spoke about country in terms of places where they lived or where family members were born or buried. That is consistent with the idea of local estate areas. Much of their evidence related to the area around Tambourah, Woodstock and Abydos. Thus, Mr Joseph Kickett said that Yandeyarra to Woodstock was Kariyarra country. Ms Mary Attwood spoke of Tambourah and Yandeyarra and the country between the Yule and Turner Rivers as part of Tommy Anderson’s country. Mr George Dann was asked where was the land owned by his people and replied that it was Mumbillina where he used to live. Ms Shirley Lockyer identified White Springs as her family’s site. When asked about places to which she could not go she responded by identifying Abydos. She spoke of her Uncle Dan’s grave at Tambourah. Ms Pat Mason also said that when she lived at Abydos there were places she could not go.
That leaves only the interview by Mr John Paterson with Jimmy Woodstock as the basis for the claim to the entirety of the application area. Jimmy Woodstock spoke of the country from the Yule River down to the sea in response to a question about the identity of his grandfather as Kariyarra. In other words, he was describing country of his Kariyarra people, as a whole, rather than the Tommy Anderson’s estate. Such an interpretation of his interview is consistent with the other evidence in the case. The probabilities favour such an interpretation of Jimmy Woodstock’s interview.
The notion that all Kariyarra country was country of Tommy Anderson has no basis in the evidence of the Aboriginal people whether the applicants or the Indigenous respondents. It found its first expression by Dr Clarke. He was not able to offer a credible basis for the view and, indeed, after first embracing it, resiled from it in cross-examination, accepting that there were other Kariyarra people in the application area. Having originally explained that he did not challenge what he thought were the Indigenous respondents’ view because he had not had access to the applicants, he failed to take into account their clear evidence given to the Court. Dr Clarke’s evidence on this subject was simply fanciful. He failed to meet the most basic professional standards in the giving of his evidence.
COMMUNITY RECOGNITION
One issue identified in the applicants’ and the State’s Statement of Issues for the Separate Question was whether, in order to be a member of the native title holding group, a person had to be recognised by other members of the group as having rights and interests in the application area, and if so, recognised by which other people.
The position of the applicants and the State was set out thus:
15. There is an issue whether in order to be a member of the native title holding community, an Aboriginal person must also (in addition to satisfying the descent requirement and the self-identification requirement) be recognized by other members of the native title holding community as having rights and interests in the Claim Area under Kariyarra traditional law and custom, and if so, which others?
Participating Parties’ positions
The applicant says that the withholding of recognition by some persons associated with the Claim Area does not negate other persons from having rights and interests in land provided those other persons meet the relevant criteria for obtaining rights and interests in the Claim Area.
The applicant further says that recognition may be relevant to:
(a) answering, as part of the separate question, whether a claimed apical ancestor had rights and interests in the Claim Area and whether one or more of the descendants of a claimed apical ancestor are part of the native title holding community;
(b) any future implementation of the answer to the separate question insofar as that involves the making of a decision by a relevant person or body as to whether a person who claims to be a member of the native title holding community satisfies the descent and self-identification requirements;
(c) any future issue as to the intra-mural allocation or exercise of native title rights and interests.
The State agrees with the applicant but says further that recognition by a substantial portion of the persons associated with the Claim Area is necessary for a person to hold rights and interests in the Claim Area.
The applicant and the State understand that the Indigenous Respondents agree with some or all of the above, but it is not clear precisely to what extent.
[Emphasis added.]
In [10] of their response, the Indigenous respondents questioned the scope of the phrase “persons associated with the Claim Area” but did not appear otherwise to differ in respect of the substance of the issue.
It was common ground between the applicants and the State that the expert and lay evidence provided a place for community recognition in the establishment of rights and interests. Dr Clarke did not disagree. Dr Palmer explained in concurrent evidence:
My understanding as an anthropologist of recognition is that it's not a thing but it's a social process, that, in order that something is recognised – that is, accepted, if that's the meaning of the word – or agreed upon to be a certain thing, or to have certain qualities, or to be a – to – to comprise membership of the group, there has to be a process which takes place, which is a – which is a social process, which is bred from the interaction and knowledge of people. So the recognition itself can only develop within a social context. So if people were saying they don't know anything about somebody, then recognition is not possible, of course, because the process which is required for recognition cannot take place.
[Emphasis added.]
That approach seems to reflect the element of recognition referred to in Northern Territory v Alyawarr [2005] FCAFC 135; 145 FCR 442 at [114]:
… The interpretation and application of laws and customs by which membership is defined, even if not expressly incorporating a requirement for ‘recognition’ by members of the relevant society, is likely to involve some process of interpretation and consequential acceptance or non-acceptance of individual membership…
One aspect of this issue was addressed in the conference of experts when Dr Palmer and Dr Clarke agreed that the withholding of recognition by some persons associated with the application area did not negate other persons from having rights and interests in land provided those persons met the relevant criteria for obtaining rights and interests in the application area.
Much of the cross-examination by the Indigenous respondents’ lawyers was directed to whether the applicants’ witnesses were aware of the Indigenous respondents and their forebears. The Indigenous respondents’ witnesses were also asked in examination-in-chief whether they were aware of the applicants or some of them. It seemed as if evidence that the applicants did not know the Indigenous respondents, or the Indigenous respondents did not know the applicants, might have been intended to be used by the Indigenous respondents to argue that the applicants were not part of the Kariyarra society. In the course of the preservation evidence hearing, then counsel for the Indigenous respondents, Mr Clifford, when asked by the Court the purpose of such questions replied “I’m going to rely upon the absence of knowledge of this witness of who they are or where they are”. By the time of the final hearing, the then and present lawyer for the Indigenous respondents, recognising that “the problem with that is, if there are three or four Kariyarra families being asked to confirm that the others identify them, and the others don’t, the – it’s a double edged sword, effectively”, did not mount such an argument. He recognised that if that type of reasoning were available it might equally show that the Indigenous respondents were not part of that society.
As it transpired, the argument was not available on the evidence. The evidence showed that the applicants and the Indigenous respondents were in many instances known to each other. A number of witnesses from each camp knew those of the other camp, from school or work or community interaction in and around Port Hedland. For instance, on the applicants’ side Ms Irene Roberts recognised Molly Todd and Mary Yinbung and had often seen Jimmy Woodstock riding around. She had also seen Norman Todd around. Ms E Williams saw Donny Todd around but did not know him. She also knew Mr George Dann. Ms Margaret Stewart knew Charlie Webb. Mr Rick Watkins knew all the Indigenous respondents and Charlie Webb. He saw Jimmy Todd as an old man. Ms Jenny Baraga knew Mr Vincent Lockyer, Mr Alfred Barker, Peggy Brady, Ms Selina Ali, Ms Jeannie Snowball, Mr Rick Watkins, and Mr Donny Wilson. Mr Vincent Lockyer knew Jimmy Woodstock, Norman Todd, Ms Mary Attwood and Molly Todd. He knew Mr George Dann because he went to school with him. He worked at Yandeyarra with Charlie Webb. He knew Molly Todd, Jimmy Todd, Mr George Dann and Ms Pat Mason. Mr Donny Wilson knew Mary Todd, Dan Todd, Ms Mary Attwood, Mr George Dann, Ms Pat Mason and Charlie Webb. Ms Diana Robinson knew Ms Mary Attwood, Mr George Dann, Jeannie Smith and Charlie Webb. Ms Eileen Rule knew Molly Todd as the mother of Ms Mary Attwood, Mr George Dann and Ms Jeannie Smith. Mr Alfred Barker knew Molly Todd, all her children except Jocelyn and Judy, and her brother Dan. Mr Jason Alec knew Ms Mary Attwood, Ms Pat Mason, Charlie Webb and he worked with Mr Robert Dann.
Then, on the Indigenous respondents’ side, for example, Mr Joseph Kickett knew Mr Rick Watkins and knew Mr Alfred Barker, but not well. He knew of Ms Raelene Button, Mr Vincent Lockyer and Ms Diana Robinson. Ms Mary Attwood knew Ms E Williams, Ms Margaret Stewart and Mr Donny Wilson through her work. She knew Ms Raelene Button because she went to school with her mother. She knew Mr Vincent Lockyer really well because she went to school with him. She knew Ms Diana Robinson from when she came to Port Hedland as a toddler. She knew Mr Alfred Barker and Ms Eileen Rule well. And she knew Ms Jeannie Snowball, Ms Selina Ali, Topsy McKenna, Gordon Pontroy and Mr Jason Alec’s grandfather. Mr George Dann knew Ms Eileen Roberts and Ms E Williams. He knew Mr Rick Watkins because he worked with his father. He knew Mr Vincent Lockyer and Ms Jeannie Snowball well, and Ms Eileen Rule very well. He has known Mr Alfred Barker for a long time. He says hello to Mr Donny Wilson “no hard feelings”. Mr Robert Dann knew Mr Rick Watkins, Mr Vincent Lockyer, Ms Diana Robinson, Mr Alfred Barker and Mr Jason Alec.
At the final hearing, the lawyer for the Indigenous respondents in opening submissions sought to explain that the failure of the applicants to recognise the Indigenous respondents and their family was the consequence of the others having come to the area in recent times. He contended:
And in relation to that particular area, there is strong evidence that these people [Indigenous respondents and their families] have always been there.
If it is the case that others who have come on that country don't know them to be traditional owners, it doesn't mean that they're not the traditional owners; it means those people have come onto that country. And there's a report that was written in the 80s by Romalo McSweeney about what the government was intending to do in relation to management of those Aboriginal reserves and the tensions they were having. And, effectively, that was where the tensions were between a split in the arriving strikers, or the one group that was identified in her report as actually having the connection back, which was Jimmy Todd and Jimmy Todd's family and descendants.
In the main, the lack of knowledge of one witness of other Kariyarra people resulted from the fact that they were from different generations and lived at different times. Land rights were not an issue in those times or situations. To the extent that there was some lack of interaction between the groups it is explained by the disruption caused from the removal of children and parents from the area in accordance with government policy, and the operation of the Native (Citizenship Rights) Act 1944 which limited the contact which the Indigenous respondents who were under the Act could have with other Kariyarra people who were not under the Act. Furthermore, the Indigenous respondents lived independently of missions or Aboriginal reserves by largely engaging in prospecting to provide for their support free of government involvement. That set them apart from many of the other Aboriginal people in the application area.
The applicants proposed that the answer to the separate question include a single recognition criteria, namely, that to qualify as a native title holder the person recognise themselves as having rights and interests in the Kariyarra Claim Area under Kariyarra traditional law and custom.
The State proposed an additional recognition criterion, namely, that the people in question:
(c) … are recognised by other members of the Kariyarra community as having rights and interests in the Kariyarra claim area under Kariyarra traditional law and custom.
In final submissions, senior counsel for the applicants explained the basis for the single recognition criterion as follows:
So, similarly, as part of or as perhaps falling under still this second criteria, we say that does bring in some element also of community recognition, and that is, reciprocal – as a reciprocal matter a person must acknowledge that they are part of the Kariyarra community and that they have rights and interests under Kariyarra law and custom.
But that assertion, if you like, or that acknowledgement has to, we say, have some reality to it, so the community has to accept that in a – in the sense that it can’t be unreal. You can’t have someone who just comes along and says, “Well, I acknowledge that I’m part of this community” if there’s a unanimous view or a consensus view amongst the community that well, no, you’re not, then a person can’t have rights simply by self-assertion. There has to be some reality to the assertion, and how you test the reality to the assertion is how does the community react to it?
Now, that leads us into an issue of whether there is a third criteria, and that’s the criteria of recognition by others, and this is an issue that the State has raised. So, it’s not part of the Form 1 criteria that we’ve pleaded, and in our submissions we say that there isn’t a distinct third criteria of recognition by others. And one of the difficulties of recognition by others is the way in which this third criteria is framed and, if I can just oh, address it now by reference to the State’s submissions, and that’s written submission. So, in the State’s written submission they do press for this third criteria, and at paragraph 4 of their written submission they want to add the words:
So, the first criteria A, being descent, and the second criteria, B, being a person who recognises themselves.
And then they want C:
who are recognised by other members of the Kariyarra community as having rights and interests in the Kariyarra claim area under Kariyarra traditional law and custom.
And the difficulty we say with that is perhaps highlighted by what they’ve said at paragraph 8 of their written submission. And at the very end of paragraph 6 of their written submission they agree with us in terms of what we’ve said about:
You can’t have a person assert that they’re part of a community if the rest of the community simply doesn’t accept it.
And they go on to say:
A Kariyarra person cannot share in a communal right without the agreement of (at least the reasonable proportion of) the remainder of the Kariyarra community.
And this is the difficulty with having a distinct third criteria is it begs the question who has to recognise who, and how many people have to recognise someone in order for them to qualify under that third criteria?
[Emphasis added.]
That oral submission reflected the position taken by the applicants in their written submissions as follows:
144. Whether the concept of ‘recognition’ goes to the existence of a right is a more difficult issue. The evidence, and logic, supports the view that in an oral culture, recognition must play a role in determining whether the criterion of descent from a relevant apical ancestor is satisfied, as recognition is in effect the ‘archive’ of relevant information. Thus if a person claimed to be a descendant of a relevant ancestor, but the community did not recognize that to be the fact, then the person could not effectively assert or enforce any right as a descendant. In contemporary times there is an ability to ‘prove’ facts, such as descent or occupation by an ancestor, through archival sources. This is what Dr Morton refers to as ‘deep descent’. This is better seen to be an adaptation of traditional law and custom brought about by changed modern circumstances rather than a wholly new law or custom.
145. Nevertheless, if despite the existence of archival material, the community as a whole does not accept the fact of an apical ancestor having occupied part of the claim area at sovereignty, or of a person being a descendant of a relevant apical ancestor, then whether the right exists or is merely incapable of being exercised may become a semantic distinction. Just as with self recognition addressed above, it does not make sense to recognize a person as being a joint holder of a communal right if the other members of that community simply do not acknowledge their joint ownership. It is a question of fact and degree whether, on the one hand, an apical ancestor, or a descendant of an apical ancestor, is a member of the community because the relevant criteria under traditional law and custom are satisfied notwithstanding there is some disputation about that matter; or whether there is such a level of consensus amongst the community that it may be said the relevant criteria are not satisfied despite documentary records or anthropological opinion to the contrary.
[Emphasis added.]
In final submissions, the lawyer for the Indigenous respondents expressed, very briefly, a preference for the applicants’ formulation.
There is clearly little between the positions of the parties on this issue. The applicants accepted in final submissions that an element of community recognition was necessary but suggested that it was encapsulated in their single recognition criterion. The criticism of the State’s formulation has little force. In the end, the formulation proffered by the State is supported by the evidence and is not in substance inconsistent with the position of the applicants or the Indigenous respondents. That formulation should be adopted in the answer to the separate question.
SHOULD THE INDIGENOUS RESPONDENTS BE FOUND NOT TO BE PART OF THE KARIYARRA PEOPLE
In final submissions the applicants argued that, whilst the Tommy Anderson descendants generally were part of the Kariyarra people, the six Indigenous respondents had demonstrated by their conduct and views that they do not identify themselves as having rights as part of the Kariyarra communal native title under the traditional laws and customs of the Kariyarra people and are not recognised by other members of the Kariyarra people as satisfying that criterion.
Largely that submission was based on the Indigenous respondents making the claims in this proceeding to the effect that the Tommy Anderson family is the only rights holder in the application areas. The submission contended “the fact that the Indigenous respondents continued to assert such a view is itself evidence of their disconnection from the Kariyarra community”. Further evidence of that disconnection, so it was submitted, came from the evidence that the Indigenous respondents’ families led lives independent of missions and government and sustained themselves by prospecting particularly in the Woodstock / Abydos area and hence were distant from the other Kariyarra people and the centre of population at Port Hedland.
Earlier in these reasons for judgment there was an examination of some of the reasons which might explain why the Indigenous respondents pursued the challenge made in this proceeding. Additionally, it might be surmised that the report obtained from Dr Clarke would have been influential in their decision to challenge the applicants. They were perhaps not to know that his reports and opinions were severely flawed. Then, it is not known whether the legal advice, whatever it was, given to the Indigenous respondents contributed or not to their decision to contest the applications. In other words, it is likely that any exclusion from the Kariyarra native title holding group would require an understanding of a number of factors which have not been the subject of evidence. That, however, raises a more fundamental consideration. What is the basis of the power to exclude the Indigenous respondents from the native title claim group? Ultimately, that question depends on the laws and customs of the Kariyarra people. Do those laws and customs allow for exclusion of those who challenge the constitution of the group? No evidence has been led on that issue. It cannot be assumed that the Kariyarra people have traditional laws and customs which excommunicate dissidents in such circumstances as the present. The future relations between the Kariyarra people and the Indigenous respondents must be dealt with by the Kariyarra people in accordance with the rules applicable to the circumstances rather than by the Court in this proceeding.
SHOULD THE INDIGENOUS RESPONDENTS BE REMOVED AS RESPONDENTS IN THE KARIYARRA – PIPINGARRA APPLICATION?
Under s 84(8) of the NTA, the Court may remove a party as respondent to an application for a determination of native title.
The Indigenous respondents are respondents to the Kariyarra – Pipingarra application. The Court refused an earlier application of the applicants to remove them as respondents: TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158. The essential reason for that judgment was that the Indigenous respondents had an expert report to support their challenge. As any determination would be a judgment in rem and perpetual, it was in the public interest and the interest of the Kariyarra people to allow for the ventilation of any credible challenges to the application made to the Court.
That process has now been concluded. There is no further justification for the Indigenous respondents to remain respondents in the Kariyarra – Pipingarra application. Their interests are wholly protected as members of the native title claim group. An order will be made that they be removed as respondents from the Kariyarra – Pipingarra application.
DISPOSITION
The Court will provide the answer to the separate question in accordance with these reasons for judgment. Further, in the Kariyarra – Pipingarra application there will be an order that the Indigenous respondents be removed as respondents, subject to any order for costs which might be made against them if any application of that nature is brought.
The answer to be provided by the Court follows the draft proposed by the applicants with the addition of the second criterion of recognition proposed by the State. In order to more accurately reflect these reasons for judgment, the answer proposed in [1(a)] of the applicants’ draft adds the words “by cognatic descent” after the word “descendant”. If the applicants or the State wish to vary the answer by excluding those words, that party should apply in writing within seven days of the making of the orders.
As the applicants foreshadowed a potential application for costs, there will be an order that the costs of the proceedings are reserved.
As there is no further impediment to the preparation of a determination of native title in favour of the Kariyarra people over the application areas, the applicants and the State are directed to file in Court a proposed determination within a timeframe to be discussed.
I certify that the preceding three hundred and fifty-nine (359) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 29 March 2018
Annexure A
Annexure B
Annexure CBates 1901 - Bates, D. ‘From Port Hedland to Carnarvon by Buggy’. Journal of the Dept. Of Agriculture of Western Australia 4. Pp 183-202.
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SCHEDULE OF PARTIES
WAD 6169 of 1998
Applicants
Robinson, Kerry
Wilson, Donny
Respondents
01 Government Interests
State of Western Australia
02 Government Interests
Commonwealth of Australia
05 Mining Interests
BGC Contracting Pty Ltd
BHP Billiton Minerals Pty Ltd
Dampier Salt Ltd
Itochu Minerals & Energy of Australia Pty Ltd
Mitsui Iron Ore Corporation Pty Ltd
06 Pastoral Interests
Brierly, Colin
Day, Barkley Marshall
Day, Joan Elizabeth
Day, Richard Ernest
Day, Zane Bradley
Four Seasons Corporation (Mundabullangana Station)
Pedo Pty Ltd (Mallina Station)
07 Special Lease Interests
Westraint Resources Pty Ltd
13 Pearling Interests
MG Kailis Group of Companies
15 Telecommunications Industry Interests
Telstra Corporation Limited
17 Port Authority
Pilbara Ports Authority
18 Non Party (For Information Only)
National Native Title Tribunal
SCHEDULE OF PARTIES
WAD 232 of 2009 Applicants
Gordon, Cyril
Robinson, Kerry
Wilson, Donny
Respondents
01 Government Interests
State of Western Australia
02 Government Interests
Commonwealth of Australia
03 Indigenous Interests
Attwood, Mary
Dann, George
Dann, Robert
Lockyer, Shirley
Mason, Patricia
Smith, Eugenia
04 Mining Interests
BHP Billiton Direct Reduced Iron Pty Ltd
BHP Billiton Minerals Pty Ltd
Boral Contracting Pty Ltd
Dampier Salt Ltd
FMG Pilbara Pty Ltd
Itochu Minerals & Energy of Australia Pty Ltd
Mitsui - Itochu Iron Pty Ltd
Mitsui Iron Ore Corporation Pty Ltd
05 Pastoral Interests
Brierly, Colin
Day, Barkley Marshall
Day, Joan Elizabeth
Day, Richard Ernest
Day, Zane Bradley
06 Non Party (For Information Only)
National Native Title Tribunal
SCHEDULE OF PARTIES
WAD 47 of 2014 Applicants
Robinson, Kerry
Wilson, Donny
Respondents
01 Government Interests
State of Western Australia
02 Mining Interests
BHP Billiton Minerals Pty Ltd
FMG Pilbara Pty Ltd
Itochu Minerals & Energy of Australia Pty Ltd
Mitsui Iron Ore Corporation Pty Ltd
Mitsui-Itochu Iron Pty Ltd
Pilbara Gas Pipeline Pty Ltd
Pilbara Water and Power Pty Ltd
The Pilbara Infrastructure Pty Ltd
03 Pastoral Interests
Day, Barkley Marshall
Day, Joan Elizabeth
Day, Richard Ernest
Day, Zane Bradley
04 Intervener
Commonwealth of Australia
05 Non Party (For Information Only)
National Native Title Tribunal
2
2
0