Miller v State of South Australia (Far West Coast Sea Claim) (No 4)

[2025] FCA 388

FEDERAL COURT OF AUSTRALIA

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

File number:

SAD 71 of 2016

Judgment of:

CHARLESWORTH J

Date of judgment:

24 April 2025

Catchwords:

NATIVE TITLE – application for a determination of native title in respect of an area in the sea in the vicinity of the far west coast of South Australia – claim area abutting and in proximity to existing determinations of native title – where applicant applied to amend the Claim Group description so as to replicate the description of native title holders in adjacent land – where determination application opposed by the State, the Commonwealth and Aboriginal respondents – whether permissible to examine intramural allocation of native title rights and interests in an already determined area – legal consequences of the adjacent determination being a judgment in rem – whether native title rights and interests are possessed in the claim area under traditional laws and customs providing for attainment of core rights by descendancy under a patrilineal estate-based tenure system that no longer exists – where traditional laws and customs have evolved to permit a greater level of cognate descent – whether native title rights and interests are held at broader levels of language groups – whether native title rights and interests exist in the claim area other than core rights acquired through cognate lines of descent – consideration of consequences of non-core rights in circumstances where the system of interdependence and interconnectedness of the former estate groups no longer exists – whether applicant discharged onus of proof in establishing connection with the claim area distinct from connection with areas already subject to native title determinations   

Legislation:

Evidence Act 1995 (Cth) ss 54, 60, 63, 72, 82, 91, 140, 191

Native Title Act 1993 (Cth) ss 6, 10, 13, 57, 61, 67, 82, 84D, 86, 87, 87A, 223, 225, 253

Seas and Submerged Lands Act 1973 (Cth)

Federal Court Rules 2011 (Cth) rr 30.01, 34.119, 34.120 34.121

Cases cited:

AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268; 300 ALR 193

Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359

Akiba v The Commonwealth (2013) 250 CLR 209

Bodney v Bennell (2008) 167 FCR 84

Burden v Ainsworth (2004) 59 NSWLR 506

Champion v State of Western Australia [2009] FCA 1141

Commonwealth v Yarmirr (2001) 208 CLR 1

Dale v Western Australia (2011) 191 FCR 521

Duong v Tran [2010] NSWCA 280

Far West Coast Native Title Claim v South Australia (No 5) [2013] FCA 717

Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285

Fejo v Northern Territory (1998) 195 CLR 96

K.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225

Kassem v Crossley [2000] NSWCA 276; 32 MVR 179

Laing v State of South Australia [2012] FCA 676

Laing v State of South Australia (No 2) [2012] FCA 980

Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474

Mabo v Queensland (No 2) (1992) 175 CLR 1

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Malone (on behalf of the Clermont-Belyando Area Native Title Claim) v Queensland (No 5) [2021] FCA 1639; 397 ALR 397

Manado v Western Australia (2018) 265 FCR 68

McNamara on behalf of the Gawler Ranges People v State of South Australia [2011] FCA 1471

Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599

Miller v State of South Australia (Far West Coast Sea Claim) (No 3) [2022] FCA 466

National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68

Nelson v Northern Territory (2010) 190 FCR 344

Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442

Sampi v State of Western Australia [2005] FCA 777

Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim) [2021] FCA 1357

Starkey v South Australia (2018) 261 FCR 183

Stuart v South Australia [2025] HCA 12

Stuart v State of South Australia (2023) 299 FCR 507

Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) [2019] FCA 1282

Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1514

Torres v State of Western Australia [2012] FCA 972

Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492

Western Australia v Ward (2000) 99 FCR 316

Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People v State of South Australia [2023] FCA 60

Wilson, on behalf of the Wirangu People v State of South Australia (No 2) [2022] FCA 1460

Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533

Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

Division:

General Division

Registry:

South Australia

National Practice Area:

Native Title

Number of paragraphs:

1506

Date of last submission:

28 February 2023

Dates of hearing:

15 – 18 March, 21 – 25 March, 28 – 31 March, 4 – 8 April, 11 – 14 April, 19 – 20 April, 13 – 15 July, 25 August, 14 December 2022

Counsel for the Applicants:

15-18, 21-15 and 28-31 March 2022 Ms T Jowett SC with
Mr W DeMars
4-8, 11-14 and 19-20 April 2022 Ms T Jowett SC with
Mr W DeMars
13-15 July 2022 Ms T Jowett SC with Mr W DeMars
25 August and 14 December 2022 Ms T Jowett SC

Solicitor for the Applicants:

South Australian Native Title Services Limited

Counsel for the First Respondent:

15-18, 21-15 and 28-31 March 2022 Mr W Ambrose with
Mr P Tonkin

4-8, 11-14 and 19-20 April 2022 Mr W Ambrose
with Mr P Tonkin
13-15 July 2022 Mr W Ambrose with Mr P Tonkin
25 August and 14 December 2022 Mr W Ambrose

Solicitor for the First Respondent:

Crown Solicitor’s Office South Australia

Counsel for the Second Respondent:

15-18 March 2022, Ms R Webb KC with Mr M Heffernan
21-24 March 2022 Ms T Heuzenroeder with
Mr M Heffernan
25 and 28-31 March 2022 Ms R Webb KC with
Mr M Heffernan
4-8, 11-14 and 19-20 April 2022 Ms R Webb KC with
Mr M Heffernan
13-15 July 2022 Ms R Webb KC with Mr M Heffernan
25 August and 14 December 2022 Ms R Webb KC

Solicitor for the Second Respondent:

Australian Government Solicitor

Counsel for the Third, Fourth, Fifth and Sixth Respondents:

15-18, 21-15 and 28-31 2022 March Mr D Billington SC
4-8 April 2022 Mr D Billington SC
11-14 April 2022 Mr D Billington SC with
Mr N Hutley SC
19-20 April 2022 Mr D Billington SC
13-15 July 2022 Mr D Billington SC
25 August and 14 December 2022 Mr D Billington SC

Solicitor for the Third, Fourth, Fifth and Sixth Respondents:

Triple BL Legal

Counsel for the Seventh and Eighth Respondents:

The Seventh and Eighth Respondents appeared in person

Counsel for the Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, Twenty-Seventh, Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second, Thirty-Third, Thirty-Fourth, Thirty-Fifth, Thirty-Sixth and Thirty-Seventh Respondents:

No appearance by the Ninth to Thirty-Seventh Respondents

Table of Corrections
7 July 2025	Paragraph 20: last line “participants in the trial” replaced with “them”
Paragraph 76: line four: “paragraph B” replaced with “Pathway B”
Paragraph 92: line six “in others” replaced with “in those groups”
Paragraph 179(6): line seven “far west coast” replaced with “Far West Coast”
Paragraph 206: line one “at [81]” deleted, reference at end of paragraph
Paragraph 216: line one “eastward” replaced with “westward”
Paragraph 235: line two “Dr McCarthy” defined (bold)
Paragraph 299: line two “270 km west” replaced with “270 km east”
Paragraph 311: line two “Gardiner” replaced with “Captain Gardiner”
Paragraph 444: line two “nuclear weapon” replaced with “British atomic weapons”
Paragraph 481: last line “far west coast” replaced with “Far West Coast”
Paragraph 491: line two “far west coast” replaced with “Far West Coast”
Paragraph 506: line one “ganbara” replaced with “Ganba”
Paragraph 602: line six “wanchilya” replaced with “wanchillar”
Paragraph 625: line eight “pinguin” replaced with “penguin”
Paragraph 652: quote line three “Yolgnu” replaced with “Yolgnu [sic]
Paragraph 657: line two “Bunna Lawrie’s” replaced with “his”
Paragraph 660: lines two, four and five “Council of Elders” replaced with “Mirning Council of Elders”
Paragraph 670: line one “her mother was a Kokatha woman” replaced with “her mother, Belinda Clarke, was a Kokatha woman”
Paragraph 685: line four “he swam by the sea to Scott Bay” replaced with “he swam in the sea at Scott Bay”
Paragraph 698: line six “Not.  She from different tribe” replaced with “No.  She from different tribe”
Paragraph 723: line two “Mirning people speak for Mirning land” replaced with “Mirning people [to] speak for Mirning land”
Paragraph 769: line one “in the Bight” replaced with “in the Great Australian Bight”
Paragraph 784: line one “out to see” replaced with “out to sea”
Paragraph 807: line six “his sister Yirgjhilya” replaced with “his sister Yirgjhilya-Mary”
Paragraph 824: line two “the Bight” replaced with “the Great Australian Bight
Paragraph 827: line two “Wirrula” replaced with “Wirrulla”
Paragraph 838: line two “he said was” replaced with “he said were”
Paragraph 846: quote [36] corrected lines one to two “Dhoogoorr Mirning law which includes law relating to whales” replaced with “dhoogoorr whale law”
Paragraph 873: line three “native title holder” replaced with “native title”
Paragraph 883: lines three to four “at the unmoored pre-trial” replaced with “at the pre-trial”
Paragraph 942: line one “Paragraph 7” replaced with “Page 7”
Paragraph 945: lines one to two “he said the source of rights of “inland people”:” replaced with “he said (of the source of rights of “inland people”):”
Paragraph 965: line three “along the strip” replaced with “along the coastal strip”
Paragraph 974: line three “no archaeological investigations” replaced with “no investigations”
Paragraph 1008(5): line two “high rates” replaced with “high hazard ratings”
Paragraph 1070: last line “up or placed there” replaced with “up and placed there”
Paragraph 1086: line five “into ocean” replaced with “into the ocean”
Paragraph 1087: line seven “about 30 years ago” replaced with “about 50 – 60 years ago” Line eight “Liebelt’s evidence” relaced with “Nicholson’s evidence”
Paragraph 1103: line nine “Yaralina” replaced with “Yarilena”
Heading above paragraph 1134: “SACRED SITED” replaced with “SACRED SITES”
Paragraph 1213: line one “he acknowledge” replaced with “he acknowledged”
Paragraph 1229: quote line three “from Tjunjunjara” replaced with “from Tjunjunjara [sic]”
Paragraph 1230: line five “stories that they have responsibility for” replaced with “stories that [we] have responsibility for”
Paragraph 1275: line two “as far inland as Yardea” replaced with “as far inland as Yardea (in the Gawler Ranges)”
Paragraph 1331: quote [924] and [925] “Kaltnya” replaced with “Kaltnya [sic]”
Paragraph 1400: line one “specially” replaced with “specifically”
Paragraph 1404: line seven “cognatic descent” replaced with “cognate descent”
Paragraph 1417: line five “to Peterson” replaced with “to Prof Peterson”
Paragraph 1418: quote line three “in 1987” replaced with ‘in 1987 [sic]” quote line four “in 1983” replaced with “in 1983 [sic]”
Paragraph 1424: line one “far west coast people” replaced with “Far West Coast people”
Paragraph 1487: end of quote “(footnotes omitted)” replaced with “(original emphasis, footnotes omitted)”
Paragraph 1491: line two “single native society” replaced with “single society”
Paragraph 1505(1)(b): line one “with western end” replaced with “with the western end”
Paragraph 1506: line one “s 223(c)” replaced with “s 225(c)”
SCHEDULE TWO: line six right hand column “9676.88M” replaced with “9676.88m”

ORDERS

SAD 71 of 2016

 FAR WEST COAST SEA CLAIM

BETWEEN:

LEONARD MILLER and others named in the Schedule of Parties

Applicant

AND:

STATE OF SOUTH AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

BUNNA RUPERT LAWRIE (and others named in the Schedule of Parties)

Third Respondent

ORDER MADE BY:	CHARLESWORTH J
DATE OF ORDER:	24 APRIL 2025

THE COURT ORDERS THAT:

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

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

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

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

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

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

7.Liberty to apply.

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

REASONS FOR JUDGMENT

INTRODUCTION	[1]
A GUIDE TO THESE REASONS	[19]
PART 1:  THE DEFINITION OF NATIVE TITLE	[29]
PART 2:  THE SEA CLAIM AREA	[49]
Amendments to the Sea Claim Area	[59]
Topography of the coast	[67]
PART 3:  THE CLAIM GROUP	[72]
PART 4:  THE ISSUES	[81]
The applicant	[83]
The asserted native title rights and interests (as amended)	[88]
Bunna Lawrie Respondents	[89]
The State	[106]
The Commonwealth	[119]
Michael Laing	[122]
Robert Lawrie	[126]
PART 5:  SURROUNDING DETERMINATIONS AND PRIOR CLAIMS	[127]
The FWC Land Determination	[128]
The area covered	[132]
Native title holders and their rights and interests	[136]
Accompanying reasons	[140]
WA Mirning Determination	[154]
Accompanying reasons	[161]
Gawler Ranges Determination	[163]
Wirangu No 2 Native Title Claim and later determination	[166]
Mirning Eastern Sea and Land Claim	[168]
PART 6:  ARGUMENTS BASED ON THE FWC LAND DETERMINATION	[175]
PART 7:  THE SOURCES OF EVIDENCE	[215]
On country sessions	[215]
Aboriginal witnesses	[218]
Lay evidence called by the State	[223]
Documents	[224]
Expert reports	[226]
Expert pre-trial conference	[239]
Concurrent evidence sessions	[241]
PART 8: EVIDENCE AND PROCEDURE	[246]
Evidence adduced for a hearsay purpose	[246]
Evidentiary status of the reports of Dr Kingsley Palmer	[248]
Changes of opinion	[250]
Cultural and customary concerns	[251]
PART 9:  SOVEREIGNTY, SETTLEMENT AND ETHNO-HISTORICAL MATERIAL	[254]
Colonisation on the land adjacent to the Sea Claim Area	[258]
Early explorers and surveyors	[262]
Ration stations	[273]
Police stations	[275]
Sealers	[280]
Whalers	[282]
Pastoralists and settlers	[285]
The telegraph line	[292]
Missions and children’s homes	[295]
Maralinga and the Yalata community	[299]
Early anthropologists	[300]
Bates	[301]
Howitt	[306]
Elkin	[307]
Ronald and Catherine Berndt	[308]
Tindale and Birdsell	[309]
Reverand G Taplin	[311]
EM Curr	[312]
RH Mathews	[313]
PART 10:  ABORIGINAL WITNESSES	[314]
April Lawrie	[324]
Clem Lawrie	[372]
Peter Miller	[418]
Neville Miller	[430]
Wanda Miller	[447]
Simon Prideaux	[465]
Wayne Haseldine	[482]
Arthur Catsambalas	[493]
Alan Haseldine	[498]
Oscar Richards	[502]
Gavin Peel	[525]
Barry “Jack” Johncock	[543]
Vernon “Penong” Miller	[549]
Bunna Lawrie	[554]
Ancestry	[555]
Mirning language	[567]
Role in the Mirning community	[572]
Practices relating to the sea	[596]
Mirning ceremonies and sites	[601]
Mirning Dreamtime stories	[602]
Other evidence	[604]
Evidence given on country	[608]
Dorcas Corrie Miller	[666]
Preservation evidence	[667]
Rose Patreena Miller	[704]
Meegan Carmel Sparrow	[734]
Lloyd Larking	[757]
Cecelia Coaby	[770]
Constance Mundy	[779]
Heinz Burgoyne	[783]
Rosaleen Jenner	[788]
Yirgjhilya-Mary Lawrie	[798]
Arruna-Thutha Lawrie	[806]
Jason Scott	[815]
Melville McNamara	[826]
Kaylene Fowler	[830]
Max Harrison	[836]
Robert Lawrie	[838]
Michael Laing	[851]
PART 11:  WITNESS IMPRESSIONS	[865]
PART 12:  TRADITIONAL LAWS AND CUSTOMS ASSERTED BY THE APPLICANT	[872]
PART 13:  PRELIMINARY FINDINGS BASED ON UNDISPUTED OR LESS CONTENTIOUS FACTS	[885]
The indisputable fact of the FWC Land Determination	[888]
Estate groups	[891]
Rights transmissible by descent	[894]
Core rights	[897]
Kinship and ceremonial connection	[902]
Pre-sovereignty range of movement	[909]
Composite groups and language association	[917]
Locales associated with language groups	[921]
Cognate descent	[922]
Succession	[927]
Apical ancestors associated with coastal estates	[932]
Cultural blocs	[933]
Disruption of the estate and kinship system	[938]
The land runs to the sea	[939]
PART 14:  THE “FAR WEST COAST PEOPLE” AS A “SOCIETY”	[942]
PART 15:  PHYSICAL ACCESS TO THE SEA	[965]
Archaeology	[973]
The archaeological record concerning food resources	[975]
Sea conditions	[997]
Trevor Puckridge	[998]
Perry Will	[1003]
Professor Patrick Hesp	[1005]
Peter Codrington	[1011]
The Court’s observations	[1014]
Sharks	[1019]
Watercraft	[1021]
Access to the sea at the base of the Bunda Cliffs	[1034]
Swimming, wading and diving	[1060]
Natural fish traps	[1070]
Accessibility of islands	[1074]
Eyre Island	[1079]
St Peter Island	[1082]
Present day use of the sea by members of the claim group	[1099]
Conclusions relating to physical access to the Sea Claim Area	[1125]
PART 16:  MYTHOLOGY, SACRED SITES AND SPIRITUAL CONNECTION	[1134]
As far as the eye can see	[1138]
Mythology and related sites	[1152]
Relevance of the ethnographic record	[1163]
Extracts from the ethnographic record	[1166]
Expert opinions concerning the Jeedara whale story	[1183]
Aboriginal testimony concerning whale and snake mythology	[1187]
Further expert evidence and submissions	[1197]
The seal and the wombat	[1212]
Manarn	[1216]
Pathway C: stories and sites associated with the Tjukurpa	[1219]
Tjukurpa mythology referenced in the expert reports	[1223]
The evidence of Clem Lawrie	[1229]
Other witnesses	[1236]
Consideration	[1246]
Conclusions relating to Pathway C	[1263]
Issues relating to access, permission and ceremony	[1265]
PART 17:  LOCALES ASSOCIATED WITH LANGUAGE GROUPS	[1266]
Linguistic analysis	[1272]
Other opinions based on the ethnohistorical evidence	[1283]
Extracts from the ethnographic record	[1286]
PART 18:  CORE RIGHTS AND COASTAL ESTATES AT SOVEREIGNTY	[1304]
Agreements concerning coastal and non-coastal ancestors	[1312]
Resolution of disputes	[1317]
Eliza Ellen Ware	[1319]
Yabi Dinah	[1324]
Binilya	[1328]
Additional apical ancestors named by the Bunna Lawrie Respondents	[1335]
Mother of Gordon Charles Naley and the Mutual Recognition Condition	[1338]
Nature of rights potentially acquired by descendancy from coastal ancestors	[1355]
Living coastal descendants	[1359]
PART 19:  OTHER RIGHTS AND INTERESTS IN THE SEA CLAIM AREA	[1361]
Trade	[1369]
Ceremony	[1373]
Seasonal movements	[1377]
Marriage, in-laws and the limits of cognate descent	[1389]
In-laws and the permission debate	[1392]
Birth, affinal links and the asserted “secondary mechanism”	[1406]
Post-sovereignty movement	[1433]
Pathway B	[1442]
PART 20:  CONTINUITY AND CONNECTION	[1443]
FWC Aboriginal Corporation	[1449]
Permission and the right of access	[1464]
Deferral to Western Desert traditions	[1467]
Connection of coastal descendants to the Accessible Area	[1473]
PART 21:  NATURE OF THE RIGHTS AND INTERESTS POSSESSED BY COASTAL DESCENDANTS	[1481]
PART 22:  A DISTINCT MIRNING NATIVE TITLE SOCIETY?	[1484]
PART 23:  OUTCOME OF THE AMENDMENT APPLICATION	[1503]
PART 24:  ANSWERS TO THE PRELIMINARY QUESTIONS AND NEXT STEPS	[1505]

CHARLESWORTH J

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8. The Preliminary Questions give rise to three overarching issues.

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

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

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

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

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

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

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

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

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

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

    A GUIDE TO THESE REASONS

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

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

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

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

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

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

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

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

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

28. The reasons are otherwise structured as follows:

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

    (2)Part 2 describes the Sea Claim Area.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    PART 1:  THE DEFINITION OF NATIVE TITLE

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

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

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

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

    Common law rights and interests

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

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

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

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

    Hunting, gathering and fishing covered

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

    …

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

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

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

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

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

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

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

   47Because it is the normative system that is the source of the rights and interests, it is necessary in order to prove native title that the normative system has had a continuous existence and vitality since sovereignty.  If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist:  Yorta Yorta HC 214 CLR 422 at [47]. It is therefore necessary for native title claimants to show that the normative system that existed at sovereignty is substantially the same as the one that exists today. If it is not, then any rights and interests are not ‘possessed under the traditional laws acknowledged and traditional customs observed’.

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

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

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

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

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

   (emphasis in original)

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

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

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

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

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

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

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

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

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

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

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

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

   (footnotes omitted)

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

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

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

   (footnote omitted)

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

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

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

    PART 2:  THE SEA CLAIM AREA

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

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

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

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

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

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

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

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

    Agreed Fact

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

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

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

    Amendments to the Sea Claim Area

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

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

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

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

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

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

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

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

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

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

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

   Topography of the coast

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

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

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

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

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

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

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

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

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

    PART 3:  THE CLAIM GROUP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    PART 4:  THE ISSUES

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

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

    The applicant

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

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

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

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

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

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

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

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

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

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

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

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

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

1. On the whole, I did not find the topic of contemporary permission practices to be of great importance to the outcome of the Preliminary Questions, as opposed to the related question of who could speak for country.  The apparently free movement of people around and on the Sea Claim Area may well be explained by a breach by non-native title holders of the rights and interests of native title holders.  But the breach does not prove the non-existence of the right.  Moreover, a person’s practical ability to go to a place without first asking permission does not mean that they have a right in the nature of a native title right to access the place and remain present there.  To the extent that some (mostly Mirning) witnesses maintained that permission to access country remained a requirement, that is evidence of a continuing custom that has not been lost.

2. But it does not follow that in places where permission customs have broken down there can be no native title rights and interests.  In any event, in this case, I am concerned to identify whether there are persons having the particular native title rights and interests asserted in the proposed amended originating application.  The asserted rights do not include a right to exclude either indigenous or non-indigenous non-native title holders from the Sea Claim Area.

   Deferral to Western Desert traditions

3. The State submitted that the loss of traditional laws and customs was further demonstrated by the events occurring during the taking of evidence from Clem Lawrie at Merdayerra Sandpatch.  It was submitted that the explanation given by Clem Lawrie for the presence of men in red headbands and the interruption of his evidence demonstrated an infiltration of Western Desert tradition in the region that did not have traditional foundations and that effectively demonstrated that the Mirning and Wirangu people and their traditional laws and customs had been overrun.

4. I do not accept that submission for a number of reasons.

5. I have already made it plain that there are native title rights and interests in the FWC Land Determination Area by reference to Pathway C as it appears in that determination.  Those rights and interests are in the form of a responsibility for sites or strings of sites in the FWC Land Determination Area related to the Tjukurpa.  I have concluded that there are no such sites or strings of sites in the Sea Claim Area and that the interference by men in red headbands at the hearing was likely related to the protection of the land-based sites.  Protection of those sites does not undermine the core rights of coastal descendants in the Sea Claim Area, including their right to speak for country.

6. In addition, I did not hear a witness having Kokatha descendancy to assert that they had a right to speak for Mirning country or Wirangu country by reason of their Kokatha descendancy.  Clem Lawrie himself is illustrative.  He has both Mirning and Tjuntjuntjara ancestry.  He was plain in his evidence about sites existing in the FWC Land Determination Area founded in desert traditions, but he did not suggest that he could speak for those places in a core rights sense through ancestry other than his own descendance from Tjabilja.

7. The circumstance of considerable intermarriage and intermixing between groups in the region together with the adaptation to a model of cognate descent has had the practical consequence that more and more people will meet the description of a coastal descendant, whilst at the same time having native title rights in places covered by the FWC Land Determination Area by reference to one or more other family lines.  But the cognate descent system does not mean “all people everywhere”.  It still requires the transmission of rights by direct descendancy through a generational family line, albeit by a route through either gender.  That is the pathway to possessing native title that has been proven on the evidence.

8. Accordingly, the State’s contention that the wrong people are now speaking for the sea has not been established. The coastal descendants have persistently asserted their right to speak for the Sea Claim Area. They have not ceased that assertion in the face of devastating demographic change. That forms an important part of my consideration of the connection requirement in s 223(1)(b) of the NT Act to which I now turn.

   Connection of coastal descendants to the Accessible Area

9. There was very little variance in views as to the right people to speak for country in the eastern and western portions of the Sea Claim Area.  Those views accorded strongly with the ethnographic record as to the locales associated with language groups.   The conclusion I have reached thus far is that it is coastal descendants who possess the core right to speak for the Accessible Area, based on traditional laws relating to the acquisition of rights by descendancy that continue to be observed today.

10. I consider the asserted right to speak for country is itself important evidence of the continuing connection of the coastal descendants.  Inherently, the core right to speak for country is not merely a right of outward vocalisation enjoyed by the coastal descendants, but a right to be present in the Accessible Area because they know that it is their country.

11. A right in the nature of a native title right to be present in a place is fundamentally different from rights to be present that may be enjoyed by persons not holding native title rights.

12. It will be apparent from the balance of these reasons that many of the traditional laws and customs that once gave rise to other rights and interests in the Accessible Area are no longer acknowledged or observed, especially those relating to reciprocity features of the former estate system including kinship and trade.  However, what has survived is the unshakeable (and correct) assertion by the coastal descendants that the Accessible Area is their responsibility to protect.

13. The evidence of the coastal descendants collectively demonstrates that they have, considered as a group, manifested their connection to the Accessible Area by visiting it, caring for it, and using its resources in ways that are the same as, or an adaptation of, the traditional ways of their ancestors.  It is not disputed that the use of modern fishing aids to take resources from within the Accessible Area is an adaptation of the traditional manner of exercising the right to fish and I so find.  My conclusion that the use of modern aids cannot extend the traditional “boundaries” of the formerly existing estates does not affect that finding.

14. The coastal descendants also collectively demonstrated knowledge of the Accessible Area which I accept for the most part has its source in their elders. Counsel for the applicant sought to elevate some parts of that topic into the status of “rules” about where to fish or “rules” about avoiding dangers in the sea.  It is not necessary to characterise the practice of fishing and visiting the area as being in the nature of “rules” and I do not consider it necessary to summarise the parties’ debate on that topic.  A living coastal descendant need not prove that he or she undertakes fishing practices in the same manner as his or her ancestors in order for the fishing practices to form an evidentiary basis for their continued connection to country.

15. I have concluded that the evidence is insufficient to prove that the Jeedara whale story has pre-sovereignty origins and does not in any event extend native title rights into places outside of the Accessible Area.  The requisite connection of coastal descendants from Tjabilja and the mother of Gordon Charles Naley can be, and has been, established by reference to physical visitation overlaid by knowledge of the Accessible Area.  For the purposes of connection, my conclusions about the Jeedara whale story might have had wider ramifications if it were necessary to draw a precise boundary between the original placement of Mirning coastal estates and Wirangu coastal estates.  As explained in Part 22 below, there is no need to embark on that exercise.

16. I am satisfied that the requisite connection under s 223(b) of the NT Act exists, having regard to the nature of the rights confirmed below.

    PART 21:  NATURE OF THE RIGHTS AND INTERESTS POSSESSED BY COASTAL DESCENDANTS

17. Adopting and adapting the language of the originating application, the nature of the native title rights and interests identified in these reasons include:

    (1)the right to access, to remain in and to use the Accessible Area; and

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

18. There also exists a right to access resources and to take resources from the Accessible Area.  However, I am not satisfied on the evidence before me that the resources can be accessed and removed from the Accessible Area “for any purpose” as contended for by a proposed amendment.  The phrase “for any purpose” could readily be interpreted to incorporate commercial or other purposes justifying unlimited numbers of marine resources.

19. The evidence does not demonstrate that there exists a right, founded in traditional laws and customs, to remove unlimited resources for unlimited purposes, including commercial purposes.  The purpose of use of resources by coastal ancestors prior to sovereignty was a use related to the feeding of family members.  The taking of marine resources for commercial purposes would not be in accordance with traditional laws and customs.  The applicant submitted that it was customary for Aboriginal people to take no more than what was required for their use and I accept that to be the case.  That is consistent with the core right to speak for country including by protecting its resources for future generations.  Given that finding I am not satisfied that the native title rights and interest could include unlimited taking for unlimited purposes, but rather is confined to the limited taking of resources within the Accessible Area for limited purposes relating to the sustenance of family members.

    PART 22:  A DISTINCT MIRNING NATIVE TITLE SOCIETY?

20. This topic consumed a significant portion of the trial but can be dealt with by reference to a narrow compass of material.

21. The gravamen of the Bunna Lawrie Respondents’ case was that the Mirning people were culturally unique in ways that had a bearing on the question of who held native title in parts of the Sea Claim Area and the final resolution of the applicant’s claim.  They contended for findings that may ultimately justify the making of a separate native title determination for the benefit of Mirning people, and only Mirning people, in connection with the western portion of the Sea Claim Area.  Ordinarily I would decline to make findings for the sole purpose of assisting Aboriginal respondent parties to obtain a determination of their own as this is not their claim.  However, the identification of a native title “society” is embedded to an extent in the Preliminary Questions to be answered on the applicant’s claim and I will address the question for that purpose.

22. Much of the uniqueness of the Mirning people related to their adherence to the Jeedara whale story in its various iterations.  However, putting aside my earlier observations about its origins, I do not consider the Jeedara whale story to be of legal or anthropological consequence when determining whether native title held by Mirning coastal descendants is a different native title to that held by Wirangu coastal descendants.

23. Counsel for the Bunna Lawrie Respondents distilled Mirning traditional laws and customs into four fundamental and related “norms” which identified the native title holders, articulated in closing submissions as follows:

    6.1the fundamental traditional norm is belonging.  A native title holder belongs to their country, and their country belongs to them;

    6.2      traditionally, belonging to an area of country:

    6.2.1was inherited by descent from an ancestor who belonged to that area;

    and

    6.2.2could be acquired by succession, if permitted by the norms of that area of country.

    6.3the traditional norms confer the full breadth of rights and interests, including the right to exclude non-native title holders;

    6.4the geographic area in which these traditional norms existed is the whole of the claim area and continuing west along the coast at least as far as Point Culver, WA, and probably continuing east beyond Streaky Bay, SA;

    6.5the traditional norm which identifies a native title holder today is descent from an apical ancestor where that ancestor belonged to a clan estate with coastal frontage to the claim area (Coastal Apical); and

    6.6the country to which such a descendant belongs is, today, the aggregate of the areas to which their ancestors belonged.

    (original emphasis, footnotes omitted)

24. The findings set out in these reasons correlate with that statement of norms, other than the suggestion of an exclusive right of possession.  I conclude that the norms there stated are the traditional laws and customs collectively observed by the coastal descendants irrespective of their language group.  There is no question that the estate-based tenure system is one that encompassed estates occupied by people who were Mirning language speakers in the west and estates occupied by Wirangu language speakers in the east.  There is no dispute that at sovereignty there were interconnections with neighbouring estate groups, which in this case would have most prominently occurred between the coastal estates eastward and westward of each other in the vicinity of Head of the Bight.  The area of intersection could be very large and explains why the different language group each have asserted and established a connection with that area.

25. There was a real question in this proceeding as to whether Kokatha people acknowledged and observed laws and customs providing for the transmission of rights by patrilineal descent or in limited circumstances by matrilineal descent.  The exclusion of Kokatha antecedents from the description of native title holders is explained elsewhere in these reasons in a way that upholds some parts of the arguments of the Bunna Lawrie Respondents.  The descendants of “Kokatha antecedents” have been found to not hold native title by virtue of that descendancy.

26. In light of the voluminous ethnographic records on the topic, I do not consider there could or should be firm boundaries drawn between that part of the Accessible Area that is Mirning country and that part of the Accessible Area that is Wirangu country.  I find that there is a shared or transitional zone in which those language groups have met and can continue to meet.   Like the liminal Intertidal Zone, it is not exclusively one thing or another.

27. The Accessible Area may itself be conceived of as a place in which there exist rules and customs observed by the coastal descendants as a single society in the sense that whilst they have differential rights in and connections with identifiable locations, there also exists, at the relevant regional level, a body of laws and customs regulating relations between groups and individuals.  The collective effect of the evidence is that each language group maintains the core rights to speak for those parts of the Accessible Area for which they have special responsibility, but there also exists an area to which neither group could legitimately maintain a claim of a kind that excludes or denies the interests of the other.

28. Neither Redmond nor McCarthy subscribed to the view that the region of the Bunda Cliffs was exclusively held by people of the Eucla Region.

29. The Bunna Lawrie Respondents also withdrew their claims to have native title rights and interests in the whole of the Sea Claim Area.  Importantly, they also withdrew their claim that membership of a Mirning “group” must exclude a person from having any other language identification.

30. Given all of that, I do not consider it necessary to make conclusive findings about a range of disputed factual subjects put forward by the Bunna Lawrie Respondents in support of their defence, as I do not consider the resolution of those matters could alter the conclusion I have just expressed about the relevant native title society for the Accessible Area, nor the answers to the Preliminary Questions.  The disputed issues included:

    (1)the eastern most extent of Mirning country by reference to ethnographic material, Bates’ mapping of Mirning totemic groups, or the precise playing out of succession mechanisms relating to waterholes once “owned” by Mailman Jimmy;

    (2)the extent and significance of the post sovereignty travels of Mickey Free Lawrie;

    (3)the westernmost extent of Wirangu country by reference to ethnographic material and Bates’ records of Aboriginal people situated at Fowlers Bay;

    (4)whether there existed any estate groups at all on the Nullarbor Plain;

    (5)the existence (or not) of Yulbari people as a distinct cultural group in the region or as part of Bunna Lawrie’s conceptualisation of the “Jinilya Nation”;

    (6)the cultural practices of Mirning people that differ from those of other language groups including any past or continuing male initiation practices and the concept or content of “whale law”;

    (7)the cultural features of Mirning people that are said to distinguish them from other Aboriginal people such as the uniqueness of their language, the colour of their skin, their diet or their mannerisms;

    (8)the asserted leadership and political organisational structure of Mirning society with a “chief” or “medicine man” at its head and the asserted role of the Mirning Council of Elders; and

    (9)whether Tjabilja had native title rights and interests in the region of Fowlers Bay by reason of affinal connections there, apart from her core country in the region of Eucla.

31. I will, however, record some of my impressions of Bunna Lawrie as a witness to the limited extent necessary to explain why I have placed little weight on some of his testimony relating to mythology and some of the other topics traversed in those reasons.

32. Bunna Lawrie’s evidence was unique in the sense that it was lengthy and replete with detail of his cultural knowledge and experience.  In many respects that detail was helpful and has assisted the applicant in the proof of some aspects of the claim.

33. At the commencement of his primary affidavit, Bunna Lawrie identified his sources as including not only information he had acquired from his elders but information he had learned from reading.  He also identified Aboriginal people from other places in Australia as influencing his broader understanding of “whale law”.

34. A number of factors have caused me to lose confidence in Bunna Lawrie’s assertions about the extent of knowledge he has had passed to him from his elders as opposed to other sources.  I formed the impression that in the course of his evidence the sources became more and more difficult to ascertain.  One area of concern was his description of Mickey Free Lawrie as a chief and his own asserted status as a mabarn bai and holder of the ceremonial bag, including a role for the resolution of disputes between “clans”.  In my view, evidence of that status should be given little weight unless it is confirmed by others involved in the stated societal structure.   The remaining Aboriginal witnesses disclosed little or no knowledge of such status or things.  I was particularly unimpressed with the evidence of Lloyd Larking on the topic of the mabarn bai.  In his affidavit he spoke of Bunna Lawrie having that status and made references to other things that appeared to be corroborative of Bunna Lawrie’s views about them, including by use of Mirning language.  However, in cross-examination it was revealed that he did not “have the faintest [idea]” what most of it meant and that words had been included in his affidavit that he did not personally understand and that he did not put there.  I make no finding as to how that occurred, but it emphasises my general preference for the oral evidence of witnesses over the pre-prepared affidavit material and it eliminates any corroborative effect Lloyd Larking’s evidence might otherwise have had.

1. My assessment of the reliability of Bunna Lawrie’s evidence and its original sources was further undermined by a line of questioning and responses in a restricted evidence session.   I was not persuaded by the responses he gave when asked to explain the sources of material in his affidavit by reference to a particular text.  Whilst the subject matter of that questioning does not appear to be confidential it remains in a transcript of the restricted session and I will therefore not provide more detail about it in these reasons.  The nature of the concern will be apparent from the transcript.

2. In addition to those matters, I found Bunna Lawrie’s manner of giving oral evidence generally to be discursive and non-responsive.  Ordinarily I would be willing to put such a characteristic down to personality traits of a witness and the unusual surrounds of the Court environment.  However, Bunna Lawrie was given guidance on numerous occasions about the need to listen and respond more directly to questions.  Ultimately, I formed the view that he gave responses with an eye to the case that the Bunna Lawrie Respondents sought to advance, rather than with a focus on providing straight forward responses to the questions.  I also formed the view that he was particularly evasive (by non-responsive effusiveness) at times when confronted with questions that challenged his case as a respondent.

3. I stress that these impressions have not caused me to reject Bunna Lawrie’s evidence as a whole.  Rather, they have affected the weight of his evidence such that I have not acted upon it as the sole foundation for a factual finding.   His evidence has nonetheless contributed to the weight of the Aboriginal testimony considered in conjunction with the evidence of other Aboriginal witnesses and to that extent I have found it helpful.

4. Finally on this subject I should add that an Aboriginal witness is not criticised or discouraged from sourcing material about traditional laws and customs from academic or other literature.  Of course knowledge can be obtained in that way.   My observations are confined to a concern about uncertainty concerning the source of knowledge held idiosyncratically by one person that is not generally corroborated by members of the same asserted society.  I hold that concern notwithstanding that knowledge in an Aboriginal community may be differentially shared.

   PART 23:  OUTCOME OF THE AMENDMENT APPLICATION

5. The culmination of the findings and observations made throughout these reasons is that the applicant’s application for leave to amend the originating application in the form proposed in Annexure TMG1 to the affidavit of Timothy Graham sworn on 29 March 2022 should be allowed in part.  The outcome on that application is as follows:

   (1)Leave is granted to amend the description of the Sea Claim Area in the form contained in Schedules B and C to the proposed amended originating application.

   (2)Leave is granted to amend the description of the native title rights and interests in the form proposed in Schedule E to the proposed amended originating application.

   (3)Leave to amend the Claim Group description in the form proposed in Schedule A to the proposed amended originating application is refused.

6. Given the refusal of leave to amend the Claim Group description, it is unnecessary to consider additional arguments concerning the lack of authorisation to bring a claim on behalf of the proposed amended Claim Group.

   PART 24:  ANSWERS TO THE PRELIMINARY QUESTIONS AND NEXT STEPS

7. But for any question of extinguishment of native title and the determination of matters required by s 225(c), (d) and (e) of the NT Act:

   (1)native title rights and interests exist in those parts of the Sea Claim Area that fall within the Accessible Area, being an area that:

   (a)includes that part of the Sea Claim Area aligning with the State Border and proceeding eastward to a point aligning with the western end of the Bunda Cliffs (23 km from the State Border), extending seaward from the Lowest Astronomical Tide to a distance of 30 m;

   (b)does not include any part of the Sea Claim Area aligning with the western end of the Bunda Cliffs (23 km from the State Border) and proceeding eastward to a point aligning with the eastern end of the Bunda Cliffs (3 km from Head of the Bight);

   (c)includes that part of the Sea Claim Area that aligns with the eastern end of the Bunda Cliffs (3 km from Head of the Bight) proceeding eastward to a point aligning with the vicinity of Point Peter, extending seaward from the Lowest Astronomical Tide to a distance of 30 m; and

   (d)includes that part of the Sea Claim Area aligning with the vicinity of Point Peter to the eastern boundary of the Sea Claim Area (as amended), extending seaward from the Lowest Astronomical Tide to a distance of 50 m, but not incorporating St Peter Island or Eyre Island.

   (2)the persons holding the rights and interests comprising the native title in the Accessible Area are the descendants of the following antecedents:

   (a)Bingi;

   (b)Eliza Ellen Ware;

   (c)Maggie (mother of Jimmy Scott);

   (d)Yari Wagon Billy;

   (e)Kulbala;

   (f)Eva;

   (g)Jinnie (Dunnett);

   (h)Bobby Wandrooka;

   (i)Wirangu mother of Jimmy and Arthur Richards;

   (j)Wirangu mother of Ada Beagle;

   (k)Tjabilja;

   (l)Sally Broome;

   (m)Kaltyna;

   (n)Betsy;

   (o)Siblings, Milaga and Munjinya;

   (p)Mailman Jimmy;

   (q)Tjeltjinya; and

   (r)Mother of Gordon Charles Naley.

   (3)the native title rights and interests in the Accessible Area are:

   (a)the right to speak for the Accessible Area;

   (b)the right to access, to remain in and to (subject to paragraph (c)) use the Accessible Area;

   (c)the right to access resources in and take resources from the Accessible Area for purposes limited to domestic consumption and sustenance of family members; and

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

8. The matter should proceed to trial on the separate questions arising under s 225(c), (d) and (e) of the NT Act and there will now be additional case management orders to achieve that objective.

I certify that the preceding One thousand five hundred and six (1506) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.

Associate:

Dated:       24 April 2025

SCHEDULE ONE

DEFINED TERMS

Paragraph

Term

1

Sea Claim Area
State Border

3

Claim Group

4

FWC Land Determination Area

6

Preliminary Questions

15

Bunna Lawrie Respondents

50

Lowest Astronomical Tide

51

Highest Astronomical Tide

52

Intertidal Zone

53

Littoral Zone

56

LAT maps

74

Pathway A

Pathway B

Pathway C

Pathway A(i)

Pathway A(ii)

Mutual Recognition Condition

81

SFIC

96

Western Desert cultural bloc

104

MESL Claim

139

FWC Aboriginal Corporation

141

Spear Creek Agreement

154

WA Mirning Determination

163

Gawler Ranges Determination

166

Wirangu (No 2) Native Title Claim
Wirangu Determination

227

Graham

SANTS

Graham 1

Graham 2

Graham/Liebelt 1

Graham/Liebelt 2

228

Liebelt
Liebelt 1
Liebelt 2

229

Black

Black 1

Black 2

230

Nicholson

Nicholson 1

Nicholson 2

231

Sackett

Sackett 1

Sackett 2

Sackett 3

232

Hesp

Hesp 1

Hesp 2

Hesp 3

Hesp 4

233

Gara

Gara 1

Gara 2

Gara 3

234

Huveneers

Huveneers 1

235

Benjamin

McCarthy/Benjamin 1

McCarthy/Benjamin 2

236

Redmond

Redmond/McCarthy 1

Redmond/McCarthy 2

Redmond/McCarthy 3

Redmond/McCarthy 4

Redmond/McCarthy 5

Redmond/McCarthy 6

Redmond/McCarthy 7

237

McCarthy

238

Jones

240

Conference 1

248

Palmer

Palmer Reports

Palmer 1

Palmer 2

256

effective sovereignty

257

Flinders

264

Baudin

266

Eyre

269

Stephens

Hill

270

Delisser

272

Giles

276

Trooper Richards

278

Trooper Geharty

279

Trooper Provis

293

William

Roe

295

Tindale

301

Bates

306

Howitt

307

Elkin

308

Berndts

309

Birdsell

311

Taplin

312

Curr

313

Mathews

406

APY Lands

1003

SES

1130

Accessible Area

1180

Cane

1291

Constable Dowling

1308

coastal ancestors

non-coastal ancestors

coastal descendants

non-coastal descendants

1380

Trooper Holroyd

SCHEDULE TWO

PLACE NAMES

Location	Distance from State Border	Closest distance from coast
Wilson Bluff	1145 m
Merdayerra Sandpatch	8488.40 m
Koonalda Cave	85.45 km
Gilgerabbi	166.56 km
White Well	192.3 km	9676.88 M
Head of the Bight/Ilgamba	201.94 km
Easternmost Point of the Bunda Cliffs	203.53 km
Twin Rocks (Manarn)	204.05 km
Eyre Well	204.70 km
Jerry’s Beach	232 km
Coombara Beach	245 km
Ooldea Soak	304.84 km	132.55 km
Yalata	270.57 km	26.82 km
Yatala Beach	251.43 km
Dog Fence Beach	269.19 km
Colona	291.20 km
Nundroo	303.86 km
Cheetima Beach	301.92 km
Cabbots Beach	303.36 km
Pintumba	311.09 km
Wookata	310 km
Coorabie	312.85 km
Wandilla Beach	312.82 km
Mexican Hat (Munuma)	318.13 km
Scott Beach	323.20 km
Point Fowler	330.50 km
Fowlers Bay	326.99 km
Clare Bay	350.50 km
Clare Bay (Jeedara site)	348.40 km
Bookabie	347.78 km
Euria Rockhole	366.97 km	42.83 km
Cactus Beach	379.16 km
Penong	380.41 km
Point Bell	395.17 km
Rocky Point	406.30 km
Koonibba Mission	419.72 km	22.27 km
Davenport Creek	422.96 km
Point Peter	427.98 km
Denial Bay	435.36 km
Duck Pond	442.51 km
Ceduna	444.60 km
Thevenard	443 km
Kennard’s Point	446.20 km
St Peter Island	438 km
Laura Bay	459.51 km
Smoky Bay	472.28 km
Eyre Island	461.45 km
Point Brown	466.23 km
Acraman Creek	486.85 km
Flagstaff Landing	490.62 km

SCHEDULE THREE

ANCESTORS

Gen 1	Gen 2	Gen 3	Gen 4	Gen 5	Gen 6	Gen 7
Bingi	Binmunga	Lucy Minjia Washington	Lena Washington	Robert Manny Miller	Rose Miller and Meegan Sparrow (see below)
				Herbert Miller	Penong Miller
					Peter Philip Miller
				William Miller	Evelyn Miller	Barry “Jack” Johncock
			Myrtle Ware	Wallace Scott	Jenny Scott	Jason Scott (see below)
				Dorreen Scott Miller	Neville Miller

Gen 1	Gen 2	Gen 3	Gen 4	Gen 5	Gen 6
Tjabilja	Mickey Free Lawrie	Melba Lawrie	Marcena / Marcina Coleman	Eliabeth Richards
				Oscar Benjamin Richards
				Lorraine Richards	Arthur Catsambalas
			Pearl Coleman	Colleen Coleman	Simon Prideaux
				Sue Coleman	Wayne Haseldine
			Gletys Coleman	Alan Haseldine
		Isobel Lawrie	Ralph Burgoyne	Kaylene Fowler
			Iris Burgoyne	Heinz Burgoyne
		William Larry Lawrie	Clem Lawrie Sr.	Clem Lawrie
			Robert Claude Lawrie
		Catherine Dorothea Larking	Lloyd Jim Larking
		Albert James Lawrie	Dorcas Corrie Miller	Rose Miller	Robert Victor Miller
				Meegan Carmel Sparrow
			Alma Sylvia Lawrie	April Lawrie
		Olga Lawrie	Kathleen Knibbs nee Betts	Rosaleen Dawn Jenner
		Margaret Lena Lawrie	Bruce Mundy	Constance Edith Mundy
		Hazel Lawrie	Bunna Lawie	Yirghiliya Dtabigja Lawrie
				Arruna-Thutha Lawrie
				Jason Scott Lawrie
			Cecelia Bertha Coaby
Eva Pompey	Rosie Coleman	Murray Peel	Gavin Peel

SCHEDULE OF PARTIES

SAD 71 of 2016
Applicants
Second Applicant:	OSCAR RICHARDS
Third Applicant:	ALAN HASELDINE
Fourth Applicant:	CLEM LAWRIE
Fifth Applicant:	PURNONG MILLER
Sixth Applicant:	JAMES PEEL
Seventh Applicant	ARTHUR CATSAMBALAS
Respondents
Fourth Respondent:	DORCAS MILLER
Fifth Respondent:	ROSE MILLER
Sixth Respondent:	ROBERT MILLER
Seventh Respondent:	ROBERT LAWRIE
Eighth Respondent:	MICHAEL LAING
Ninth Respondent:	DISTRICT COUNCIL OF STREAKY BAY
Tenth Respondent:	MALCOLM LAURIE PYM
Eleventh Respondent:	LEANNE JOY PYM
Twelfth Respondent:	LYNTON JOHN PYM
Thirteenth Respondent:	MALCOLM KEITH ETTRIDGE
Fourteenth Respondent:	S ETTRIDGE
Fifteenth Respondent:	PAUL EVANS
Sixteenth Respondent:	EVANS OYSTERS PTY LTD
Seventeenth Respondent:	JILLIAN COATES
Eighteenth Respondent:	M E & J L COATES ATF COATES RETIREMENT FUND
Nineteenth Respondent:	JEDD ROUTLEDGE
Twentieth Respondent:	COSMIC OYSTERS
Twenty-First Respondent:	SOUTH AUSTRALIAN OYSTER GROWERS ASSOCIATION
Twenty-Second Respondent:	WEST-EYRE SHELLFISH
Twenty-Third Respondent:	GARRY BRUNO SEIDL
Twenty-Fourth Respondent:	MARCO BREEDE
Twenty-Fifth Respondent:	LEANNE JOSEPHINE BREEDE
Twenty-Sixth Respondent:	THOMAS DARKE
Twenty-Seventh Respondent:	WILDCATCH FISHERIES SA INC
Twenty-Eighth Respondent:	DEBRA MITCHELL
Twenty-Ninth Respondent:	TRENT STOTT AS TRUSTEE FOR TJ FAMILY TRUST
Thirtieth Respondent:	COLLEEN JANE HOLMES
Thirty-First Respondent:	JEFFREY BRIAN HOLMES
Thirty-Second Respondent:	COAST OYSTERS SMOKY BAY SA
Thirty-Third Respondent:	JOHN WALL
Thirty-Fourth Respondent:	CRAIG FARLEY
Thirty-Fifth Respondent:	JADINSKI BLB HOLDINGS PTY LTD
Thirty-Sixth Respondent:	ZIPPEL ENTERPRISES PTY LTD
Thirty-Seventh Respondent:	SE & DK EVANS PTY LTD