Narrier v State of Western Australia

[2016] FCA 1519

FEDERAL COURT OF AUSTRALIA

Narrier v State of Western Australia [2016] FCA 1519

File numbers:

WAD 228 of 2011
WAD 302 of 2015

Judge:

MORTIMER J

Date of judgment:

16 December 2016   

Catchwords:

NATIVE TITLE – application for the determination of native title –­­ connection with land and waters by traditional laws and customs – section 223 of the Native Title Act 1993 (Cth) – whether the ancestors of the claim group members moved into the claim area and acquired rights and interests in the land and waters of the claim area in accordance with Western Desert laws and customs – whether the occupants of the claim area at the time of sovereignty were Western Desert people – whether the claim area was Western Desert country at sovereignty

NATIVE TITLE – extinguishment – future acts – validity of future acts – whether compliance with procedural requirements in Part 2 Division 3 of the Native Title Act 1993 (Cth) a precondition to a future act having force and effect against native title

NATIVE TITLE – extinguishment – section 47B of the Native Title Act 1993 (Cth) – whether s 47B applies to disregard extinguishment – the creation of a prior interest for the purposes of s 47B(2) – whether the resumption of a road in favour of the Crown can constitute the creation of a “prior interest”

NATIVE TITLE – extinguishment – section 47B of the Native Title Act 1993 (Cth) – whether s 47B applies to disregard extinguishment – occupation for the purposes of s 47B(1)(c) – the area that must be occupied for the purposes of s 47B(1)(c)

Legislation:

Acts Interpretation Act 1901 (Cth) s 33(2A)

Australian Telecommunications Corporation Act1989 (Cth)

Constitution, s 109

Land Act 1898 (WA)

Land Act 1933 (WA)

Land Administration Act 1997 (WA)

Migration Act 1958 (Cth)

Mining Act 1904 (WA)

Mining Act 1978 (WA)

Native Title Act 1993 (Cth) Pt 2 Div 3, ss 10, 11, 23E, 24AA, 24GB, 24GD, 24HA, 24IB, 24IC, 24ID, 24KA, 24MD, 24NA, 24OA, 26(1)(c)(i), 28, 47A, 47B, 47B(1)(b), 47B(1)(b)(i), 47B(1)(b)(ii), 47B(1)(c), 47B(2), 61, 61(1), 61(2), 223, 223(1), 225, 227, 233, 242, 242(1), 242(2), 245, 245(1), 248, 251B, 253

Nickel (Agnew) Agreement Act 1974 (WA)

Petroleum Act 1936 (WA)

Petroleum and Geothermal Resources Energy Act 1967 (WA)

Post and Telegraph Act 1901 (Cth)

Public Works Act 1902 (WA) ss 17, 18

Racial Discrimination Act 1975 (Cth) s 10

Rights in Water and Irrigation Act 1914 (WA)

Road Districts Act 1919 (WA)

Telecommunications Act 1975 (Cth)

Telecommunications Act 1991 (Cth)

Telecommunications Act 1997 (Cth)

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 12I, 12J, 12M

Native Title Bill 1993 (Cth)

Native Title (Notices) Determination 2011 (No. 1) (Cth)

Cases cited:

AB (deceased) on behalf of the Ngarla People [2012] FCA 1268; 300 ALR 193

AK v Western Australia [2008] HCA 8; 232 CLR 438

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27

Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16

Banjima People v Western Australia (No 2) [2013] FCA 868; 305 ALR 1

Banjima People v Western Australia [2015] FCAFC 84; 231 FCR 456

Banjima People v Western Australia (No 2) [2015] FCAFC 171; 328 ALR 637

Bodney v Bennell [2008] FCAFC 63; 167 FCR 84

BP (Deceased) on behalf of the Birriliburu People v Western Australia [2016] FCA 671

CG (Deceased) on behalf of the Badimia People v Western Australia [2015] FCA 204

CG (Deceased) on behalf of the Badimia People v Western Australia [2016] FCAFC 67; 240 FCR 466

Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450

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

Daniel v Western Australia [2004] FCA 1388; 212 ALR 51

Delgamuukw v British Columbia [1997] 3 SCR 1010

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

De Rose v South Australia (No 2) [2005] FCAFC 110; 145 FCR 290

De Rosev South Australia [2003] FCAFC 286; 133 FCR 325

Erubam Le (Darnley Islanders) #1 v Queensland [2003] FCAFC 227; 134 FCR 155

FMG Pilbara Pty Ltd/NC (deceased) on behalf of the Yindjibarndi People/Western Australia [2012] NNTTA 103

Fourmile v Selpam Pty Ltd [1998] FCA 67; 80 FCR 151

Graham on behalf of the Ngadju People v Western Australia [2012] FCA 1455

Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391

Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20; 235 CLR 232

Griffiths v Northern Territory of Australia [2014] FCA 256

Gudjala People #2 v Native Title Registrar [2007] FCA 1167

Gumana v Northern Territoryof Australia [2005] FCA 50; 141 FCR 457

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

Harris v Great Barrier Reef Marine Park Authority [2000] FCA 603; 98 FCR 60

Hayes vNorthern Territory [1999] FCA 1248; 97 FCR 32

Jango v Northern Territory [2006] FCA 318; 152 FCR 150

Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627

Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154; 145 FCR 523

Mitchell v MNR [2001] 1 SCR 911

Moses v Western Australia [2007] FCAFC 78; 160 FCR 148

Neowarra v Western Australia [2003] FCA 1402

Nordland Papier AG v Anti-Dumping Authority [1999] FCA 10; 93 FCR 454

Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442

Parmar v Minister for Immigration and Citizenship [2011] FCA 760; 195 FCR 186

Patch on behalf of the Birriliburu People v Western Australia [2008] FCA 944

Peterson v Western Australia [2013] FCA 518

Project Blue Sky Inc v Australian Broadcasting Corporation [1998] HCA 28; 194 CLR 355

R v Small Claims Tribunal and Homeward; Ex Parte Cameron [1976] VR 427

R v Van der Peet [1996] 2 SCR 507

Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611

Re Hamilton [1981] AC 1038

Re Kitchooalik and Tucktoo (1972) 28 DLR (3d) 483

Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; 204 CLR 82

Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776

Ruatita v Minister for Immigration and Citizenship [2013] FCA 542; 212 FCR 364

Rubibi Community (No 5) v Western Australia [2005] FCA 1025

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

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294

Sampi v Western Australia [2005] FCA 777

Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2016] FCA 168; 215 LGERA 1

The Lardil Peoples v Queensland [2001] FCA 414; 108 FCR 453

Trade Practices Commission (Cth) v Tooth & Co Limited [1979] HCA 47; 142 CLR 397

Travelex Ltd v Commissioner of Taxation [2010] HCA 33; 241 CLR 510

Wainohu v New South Wales [2011] HCA 24; 243 CLR 181

Western Australia v Commonwealth [1995] HCA 47; 183 CLR 373

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

Western Australia v Ward [2002] HCA 28; 213 CLR 1

Western Australia v Willis [2015] FCAFC 186; 239 FCR 175

Western Australia v Sebastian [2008] FCAFC 65; 173 FCR 1

WF (Deceased) on behalf of the Wiluna People v Western Australia [2013] FCA 755

Wyman v Queensland [2015] FCAFC 108; 235 FCR 464

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

Date of hearing:

27, 28, 29, 30 and 31 July 2015, 2, 3, 4 and 5 August 2015, 27, 28, 29 October 2015 and 8, 9 and 10 December 2015

Date of last submissions:

10 December 2015

Registry:

Western Australia

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

1,312

Counsel for the Applicant:

Mr S Wright with Ms T Herrmann

Solicitor for the Applicant:

Central Desert Native Title Services Ltd

Counsel for the State of Western Australia:

Mr G J Ranson with Ms S Begg and Ms C I Taggart

Solicitor for the State of Western Australia:

State Solicitor’s Office

Solicitor for Agnew Gold Mining Company Pty Ltd, BHP Billiton Nickel West Pty Ltd, BHP Billiton Yakabindie Nickel Pty Ltd, Albion Downs Pty Ltd and Cameco Australia Pty Ltd

Mr B J Willesee

Solicitor for MPI Nickel Pty Ltd

Ms S Carlin

Table of Corrections

22 February 2017

In the sixth sentence of paragraph 116, “Mr Lewis described to the Court the traditional method of butchering and cooking the animal” has been replaced with “Mr Allan Ashwin and Mr Bradley Wongawol showed the Court the traditional method of butchering and cooking the animal.”

22 February 2017

In paragraph 240, “son” has been replaced with “great grandson.”

22 February 2017

In the first sentence of paragraph 363, the word “station” has been replaced with “township.”

ORDERS

WAD 228 of 2011

BETWEEN:

EDWIN BEAMAN, JAMES CALYUN, JA, KADO MUIR, KEITH NARRIER, CHARMAINE TULLOCK, and SHIRLEY WONYABONG

Applicant

AND:

STATE OF WESTERN AUSTRALIA, SHIRE OF LEONORA, ALBION DOWNS PTY LTD, MARILYN ANNE BERNHARDT AND COLIN LESLIE BERNHARDT (YOUNO DOWNS STATION), RANGEVIEW ASSET PTY LTD, WEEBO PASTORAL COMPANY PTY LTD, AGNEW GOLD MINING COMPANY PTY LTD, BHP BILLITON NICKEL WEST PTY LTD, BHP BILLITON YAKABINDIE NICKEL PTY LTD, CAMECO AUSTRALIA PTY LTD, MABROUK MINERALS PTY LTD, and MPI NICKEL PTY LTD
Respondents

WAD 302 of 2015

BETWEEN:

HENRY ASHWIN, EDWIN BEAMAN, BRETT ANDREW LEWIS, and KEITH NARRIER
Applicant

AND:

STATE OF WESTERN AUSTRALIA, CENTRAL DESERT NATIVE TITLE SERVICES LTD, TEC DESERT NO 2 PTY LTD, and TEC DESERT PTY LTD

Respondents

JUDGE:

mORTIMER j

DATE OF ORDER:

16 DECEMBER 2016

THE COURT DIRECTS THAT:

1.The parties in proceedings WAD 228 of 2011 and WAD 302 of 2015 confer with a view to agreeing on the orders and determination to be made by the Court to reflect the conclusions reached in these reasons for judgment.

2.Any submissions on the question raised in [1280]-[1285] of the Court’s reasons to be filed and served on or before 4 pm on 27 January 2017, and to be limited to 10 pages.

3.Subject to paragraph 4, the parties file any agreed form of orders and determination within 15 working days of the Court’s decision on the submissions filed pursuant to paragraph 2 of these orders.

4.In the event that the parties are unable to reach agreement as to the form of orders and determination to be made by the Court, each party file and serve its proposed form of orders and determination within 15 working days of the Court’s decision on the submissions filed pursuant to paragraph 2 of these orders.

5.The proceedings are adjourned to a date to be fixed.

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

INTRODUCTION	[1]
TERMINOLOGY USED IN THESE REASONS	[7]
A note on spellings and names	[14]
Transcript misspellings	[17]
THE MAIN ISSUES IN THIS PROCEEDING	[18]
Connection	[18]
Conclusions on the two broad inquiries and other connection issues	[28]
Summary of my conclusions on who the people occupying the claim area at sovereignty were and what happened to them	[28]
Summary of my conclusions about when the claim group members’ ancestors moved into the claim area, and what their relationship was to the claim area and the Aboriginal people who previously occupied the claim area	[30]
Summary of my conclusions on the remainder of the s 223(1) connection issues	[31]
Conclusions on extinguishment	[34]
THE APPLICATIONS	[39]
Tjiwarl #1	[39]
Tjiwarl #2	[45]
THE CLAIM GROUP MEMBERS AND THE CLAIM AREA	[51]
The basis for membership of the claim group	[52]
The composition of the claim group	[65]
A claim for group native title	[70]
The claim area boundaries	[73]
Sovereignty: dates	[76]
History of non-Aboriginal presence in the claim area	[79]
Early contact with non-Aboriginal people	[79]
Early mineral discoveries	[84]
Non-Aboriginal settlements	[86]
Pastoral activity in the area	[91]
Aboriginal employment in the pastoral industry	[94]
Government authorities	[95]
Other authorities	[98]
THE COURSE OF THE TRIAL	[101]
Connection hearing in July 2015	[102]
Day one: 27 July 2015	[103]
Henry’s Well/Ngarlpurti	[103]
Townsend Well/Tjumpurka (view only)	[104]
Lake Miranda/Yulkapa	[105]
Day two: 28 July 2015	[106]
Yakabindie Claypan/Yakamuntu	[106]
Jones Creek/Ngurlu Wiriwiri	[107]
Mail Change Well/Tjilpur	[108]
Logan Spring/Tjiwarl/Tjiwarl Rock and Tjiwarl Soak	[109]
Day three: 29 July 2015	[110]
Palm Sping/Pii	[110]
Yakabindie Homestead	[111]
Day four: 30 July 2015	[112]
Pulyku Quarry	[112]
The Lady	[113]
Booylgoo Range/Pulyku	[114]
Day five: 31 July 2015	[115]
Day six: 2 August 2015	[116]
Mount Townsend and Mount Marion	[116]
Day seven: 3 August 2015	[117]
Leinster Soak/Warkarra and hearing venue	[117]
Day eight: 4 August 2015 and day nine: 5 August 2015	[119]
Further tranches of the proceeding held in Perth	[120]
Expert and extinguishment evidence: 27-29 October 2015	[120]
Final submissions: 8-10 December 2015	[121]
CLAIMANT WITNESSES	[122]
My approach to the claimant evidence	[122]
Shirley Wonyabong	[142]
Family connections	[146]
Kado Muir	[151]
Keith Narrier	[154]
Jennifer Narrier	[157]
Richard Narrier	[163]
Family connections: Kado Muir, Keith Narrier, Jennifer Narrier and Richard Narrier	[164]
Leroy Beaman	[173]
Edwin Beaman	[175]
Family connections: Leroy and Edwin Beaman	[177]
June Tullock	[182]
Family connections	[185]
Allan James	[198]
Family connections	[199]
Brett Lewis	[204]
Family connections	[208]
Victor Ashwin	[216]
Allan Ashwin	[218]
Henry Ashwin	[221]
Family connections: Victor, Allan and Henry Ashwin	[225]
Luxie Hogarth	[231]
Geraldine Hogarth	[233]
Family connections: Luxie and Geraldine Hogarth	[235]
Dallas Harris	[251]
Family connections	[252]
Douglas Bingham	[263]
Family connections	[268]
Timmy Patterson	[271]
EXPERT EVIDENCE	[273]
Dr Mark Clendon	[273]
Dr Clendon’s first report dated 29 May 2015	[274]
Dr Clendon’s supplementary report dated 4 August 2015	[275]
Dr Lee Sackett	[276]
Dr Sackett’s first report dated January 2014	[278]
Dr Sackett’s further expert report dated May 2015	[279]
Dr Sackett’s supplementary expert report dated August 2015	[280]
Dr Ron Brunton	[281]
Dr Brunton’s first report dated March 2015	[282]
Dr Brunton’s supplementary report dated October 2015	[283]
Joint report filed by the expert witnesses and the conference of experts	[284]
Evaluation of the expert witnesses	[288]
APPLICABLE LEGAL PRINCIPLES	[290]
FINDINGS ON CONNECTION ISSUES	[325]
A note on places referred to frequently in the evidence	[325]
Yander – as referred to by Daisy Bates’ informants	[326]
Lake Way – as referred to by Daisy Bates’ informants	[335]
Darlot	[340]
Wongawol	[353]
Wiluna	[360]
References to where people “lived”	[364]
Preliminary matters	[368]
Use of geographical locations close to the claim area	[368]
The content of Western Desert Laws and Customs and the “Western Desert Cultural Bloc”	[371]
My conclusions	[385]
The place for inferences in contested issues about laws and customs in the claim area at sovereignty	[389]
Onus of proof	[401]
The work of Richard Kingsford	[405]
Other historical anthropological material	[413]
The importance of Ken Liberman’s work in the 1970s	[415]
References in the evidence to Tjupan, Koara and Ngalia	[449]
The use of Daisy Bates’ material and the “Ngaiawonga”	[462]
Daisy Bates’ experience and travels in Western Australia	[467]
Evaluation of Daisy Bates’ material	[479]
My approach to Daisy Bates’ material	[490]
Daisy Bates’ informants	[494]
The use of “Ngaiawonga” as a description of the people in the area at sovereignty	[499]
What area did the Ngaiawonga occupy?	[512]
Dr Brunton’s analysis of Ngaiawonga marriage patterns	[515]
What happened to them?	[520]
The role of Tjukurrpa in the applicant’s claim	[532]
Explaining the Tjukurrpa	[533]
Two Carpet Snakes and the Dragonfly	[546]
Other open Tjukurrpa	[555]
Restricted Tjukurrpa	[563]
Changes or differences in the Tjukurrpa, as it is related or explained	[573]
Conclusions on Tjukurrpa	[593]
Using the Tjukurrpa as described by the claim group members as evidence of the laws and customs at sovereignty	[596]
The applicant’s argument	[598]
The State’s arguments and my responses and findings	[600]
Connection: the migration thesis	[620]
The applicant’s position	[620]
The State’s contentions	[627]
My conclusions	[630]
De Rose	[631]
Known violence against, and between, Aboriginal people	[646]
Presence and movement into the claim area	[660]
Evidence of knowledge and interaction	[664]
Evidence of shared traditional laws and customs: acquisition of rights and interests	[676]
Evidence of shared traditional laws and customs: Tjukurrpa	[700]
Other matters material to my reasoning	[708]
Connection: using evidence about language to determine the Western Desert society issue	[711]
The competing contentions	[716]
The claimant evidence	[718]
The expert evidence	[725]
My conclusions	[754]
Connection: the relevance of other decisions and determinations close to the claim area	[757]
Wiluna and Tarlpa consent determinations	[758]
The Birriliburu determination	[780]
Badimia	[786]
Wongatha	[791]
CONCLUSION ON CONNECTION	[799]
The claim group as a subset of Western Desert society	[806]
CONTINUITY	[819]
The State’s concession on continuity if the Court finds Western Desert people occupied the claim area at sovereignty	[826]
Continuing recognition of traditional laws and customs within the claim group	[827]
Continuing recognition of multiple pathways to rights and interests in country	[849]
Some adaptation, but within existing legal principles	[864]
THE CONTENT OF THE NATIVE TITLE RIGHTS AND INTERESTS	[869]
The right to exclusive possession	[871]
Non-exclusive rights	[879]
The right to access, remain in and use the claim area	[881]
The right to take resources for any purpose	[883]
The right to engage in spiritual and cultural activities	[914]
The right to maintain and protect places of significance	[919]
A right to protect the environment?	[931]
The right to receive a portion of any traditional resources (not including minerals and petroleum) taken from land or waters by Aboriginal people	[938]
The right to make decisions about the use and enjoyment of land and waters in the claim area by Western Desert people	[944]
EXTINGUISHMENT	[968]
Matters that are agreed	[969]
The consequences of non-compliance with the future act procedural provisions	[989]
Pastoral leases renewed on 1 July 2015	[1049]
The applicant’s contentions in summary	[1053]
The State’s response in summary	[1061]
The responses of any other parties, where different to the State	[1065]
My conclusions	[1068]
Future acts	[1068]
Section 24IC(1)(c)	[1071]
Section 24IC(4)(b) and the “term” of the lease	[1087]
Miscellaneous licences L53/161 and L53/177	[1098]
Various mining tenements as invalid future acts	[1121]
L36/122 and L36/123	[1123]
L36/129	[1125]
L36/144, L36/148 and L36/152	[1137]
L53/109	[1151]
Should the invalid future acts be recorded in the Determination?	[1156]
Section 47B	[1158]
Areas affected and the parties’ contentions	[1161]
Does the statutory dedication of a public road fall within s 47B(1)(b)(ii)?	[1173]
Do the identified exploration licences render s 47B inapplicable: the meaning of “lease”	[1194]
Other arguments by the applicant	[1211]
Occupation for the purposes of s 47B(1)(c): applicable principles	[1212]
UCL 239, UCL 245 and UCL 246 (north-west corner, formerly H91295 and 3114/551)	[1233]
UCL 14 and UCL 15 (Tjiwarl/Logan Spring)	[1261]
UCL 247 (south of Mail Change Well)	[1269]
Part of UCL 11 (Yakabindie)	[1270]
Parts of UCL 4, UCL 5, UCL 6 and UCL 10 (Sir Samuel)	[1286]
UCL 8 (Corner Leinster Downs and Booylgoo Spring)	[1289]
UCL 240 (Vivien)	[1290]
Road 13	[1298]
Findings on s 47B for each UCL area	[1302]
UCL 239, UCL 245 and UCL 246 (north-west corner)	[1302]
UCL 14 and UCL 15 (Tjiwarl/Logan Spring)	[1303]
UCL 247 (south of Mail Change Well)	[1304]
Part of UCL 11 (Yakabindie)	[1305]
Parts of UCL 4, UCL 5, UCL 6 and UCL 10 (Sir Samuel)	[1306]
UCL 8 (Corner Leinster Downs and Booylgoo Spring)	[1307]
UCL 240 (Vivien)	[1308]
Road 13	[1309]
OVERALL CONCLUSION AND APPROPRIATE ORDERS	[1310]

REASONS FOR JUDGMENT

INTRODUCTION

1. In general terms, this application for determination of native title concerns an area of approximately 13,600 square km, taking in land and waters situated between the towns of Wiluna in the north and Leonora in the south. The west of the claim area extends over Booylgoo Range and part of Montague Range, and the east of the claim area extends over Mount Keith and Mount Sir Samuel. The title given to the claim – Tjiwarl – is the name of a spring located in the eastern part of the claim area.

2. The application is brought on behalf of a group of Western Desert people, who claim through 11 identified apical ancestors.

3. The connection issues which arise in this case concern whether the claim area was Western Desert country at sovereignty and, if so, whether the ancestors of the claim group members acquired rights and interests in the land and waters of the claim area in accordance with Western Desert traditional laws and customs.

4. I have concluded that there should be a determination of native title in favour of the applicant, subject to my findings on extinguishment and s 47B of the Native Title Act 1993 (Cth) (NT Act).

5. I note at the outset that the applicant is required to prove their case on all issues on the balance of probabilities. That includes on connection issues. A proceeding such as this illustrates the importance of recalling the difference between a court deciding, in an exercise of judicial power, that on the balance of probabilities certain events in the past did or did not occur, or certain circumstances did or did not exist, and a decision attended by some more absolute form of certainty which purports to declare absolutely that history ran its course in a particular way.

6. It is also convenient to note at the start of these reasons that the evidence in this proceeding is, to say the least, considerable. I do not refer to all of it in my reasons. There is a need, indeed a requirement, in my opinion, to strike a balance between the length and complexity of the evidence and submissions in a claim such as this and the need for the Court’s reasons to remain accessible and understandable. Over the last decade, several High Court judges have discussed the functions of judicial reasons, which include giving effect to the “open court principle” by allowing public scrutiny of judicial decision-making (see Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [58] (French CJ and Kiefel J)), promoting sound and reasonable judicial decision-making through scrutiny and accountability, and giving effect to the court’s institutional responsibility to the public: AK v Western Australia [2008] HCA 8; 232 CLR 438 at [89] (Heydon J). Pursuing those objectives in reasons for the determination of native title can be challenging. These reasons represent my findings of fact and law based on all the evidence, and I have identified in these reasons the key submissions and evidence which have been material to the conclusions I have reached. Where I have rejected particular evidence, I say so expressly.

   TERMINOLOGY USED IN THESE REASONS

7. The parties both used the term “Western Desert Cultural Bloc” to describe an area and groups of people who observed traditional laws and customs associated with the Western Desert region. The term seems to be traced to the work of Professor Ronald Berndt and what has become known as the “Berndt line”, on which considerable argument turned in this proceeding. It is a term I prefer not to use. I will refer to relevant groups as Western Desert people or non-Western Desert people, otherwise by reference to their traditional group names, where those exist. I will refer to relevant areas as Western Desert or non-Western Desert country.

8. These reasons deal with two related proceedings: WAD 228 of 2011 and WAD 302 of 2015, which I will refer to as “Tjiwarl #1” and “Tjiwarl #2” respectively. Tjiwarl #1 was commenced by the filing of a native title determination application on 17 June 2011. Tjiwarl #2 was commenced by the filing of a native title determination application on 22 June 2015. I set out the procedural background to Tjiwarl #1, which is the principal application, at [39] below, and I address Tjiwarl #2 at [45] below. For the reasons I set out at [45]-[47] below, Tjiwarl #2 is an amplification of Tjiwarl #1, by reference to the application of s 47B of the NT Act. I have elected to use the singular word “proceeding” in these reasons when referring to Tjiwarl #1 and Tjiwarl #2.

9. When I use the term “applicant” in these reasons, I refer to the persons who are authorised to be, jointly, the “applicant” for the purposes of s 61(2) of the NT Act (unless the context indicates that another meaning is intended). Therefore, I use the pronoun “they” for the applicant. When I use the terms “claim group” or “claim group members”, I refer to the members of the native title claim group who authorised the making of the native title determination applications for the purposes of s 61(1) of the NT Act. I also use “claimant witnesses” to refer to those persons in the native title claim group who gave evidence in this proceeding. When I use the term “apical ancestors”, I refer to the persons specified in the native title determination application in Tjiwarl #1 whose “birth, or long association with the area covered by the application” forms the basis of the claim to country of the claim group members, who are the descendants of those ancestors.

10. There was a concession by the State in this case about the perpetuation, substantively unchanged, of the circumstances of Aboriginal people living in the claim area from the date of sovereignty in Western Australia (1829) until approximately 1912. A concession of that kind has occurred in other cases and enables the Court to treat the later date as the relevant one for the purposes of ascertaining the nature and extent of rights and interests in land held by Aboriginal people in occupation of the claim area at that time. See, for example, the observations of Dowsett J in Western Australia v Willis [2015] FCAFC 186; 239 FCR 175 (Pilki) at [2]:

    In the present case, sovereignty was claimed in 1829. However, as in many other such cases, there was little or no contact between indigenous and non-indigenous persons for many years thereafter. Hence it can be inferred that there was little change in the relevant indigenous society until more intense contact occurred. This case has proceeded on the basis that such contact occurred in the early 1900s.

11. Although, therefore, the Court proceeds by way of inference in relation to the factual circumstances obtaining in 1829 and those obtaining around (in this case) 1912, I shall nevertheless use the term “sovereignty” as encompassing that inference and meaning around 1912 in this case.

12. Throughout the on country hearing, the applicant’s counsel indicated that the witnesses preferred to be addressed by their first names, and that form of address was adopted. However, in these reasons, I return to a more formal style of referring to people by their surnames.

13. Save as to some issues on extinguishment, the only active respondent was the State of Western Australia. The remaining respondents adopted the State’s position and submissions on connection and took no active part in that aspect of the proceeding. Several did make separate submissions on extinguishment issues. I will refer to “the State” when I am dealing with connection issues. When I am dealing with extinguishment issues, and where necessary, I refer to the other respondents by name.

    A note on spellings and names

14. Throughout these reasons I use “Ngaiawonga” as spelt by the applicant in their submissions. Daisy Bates, the woman whose records from the early twentieth century feature so heavily in this claim, spelled the term “Ngaiuwonga”. There are various other spellings, but I have elected to use the one chosen by the applicant.

15. Some of the ethnographic and anthropological material uses names for people and languages that are similar, but not the same, as those used by claimant witnesses. For example, the anthropologist Ken Liberman, who worked in the area in the 1970s, used the term “Tjupany” because that is what he understood his informants to use, whereas the claimant witnesses in this proceeding used “Tjupan”.

16. Where appropriate, I have attempted to retain the name, or label, as used by the witness or source. All these labels are, as Dr Clendon (the anthropological linguist called by the applicant in this proceeding) observed, ephemeral: that is their nature.

    Transcript misspellings

17. Although the transcript of the on country evidence is highly accurate in terms of the use and spelling of the large number of group and language names used in this proceeding, the same cannot be said of the transcript of the expert evidence, nor of submissions. This has made the transcript difficult to follow and use. Where it is reasonably obvious what the misspelled word should be (for example, Dupon (incorrect) for Tjupan (correct)) I have not made any specific reference to the misspelling. Where the misspelling is less obvious (for example, Gulara (incorrect) for Kurrawa (correct)), I have made a specific reference to the misspelling, so that the way I have interpreted the transcript is clear.

    THE MAIN ISSUES IN THIS PROCEEDING

    Connection

18. The connection issues in this case are particular, and can be approached by considering four sets of propositions.

19. First, the claim group members are Western Desert people – the State accepts this. Their traditional laws and customs are Western Desert traditional laws and customs – the State accepts this as well. Further, it is common ground that, at sovereignty, Western Desert people comprised a “society” – as that term was used in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 – which had certain shared customary, legal, linguistic and cultural features. It is also common ground that Western Desert society has continued to exist, and Western Desert people continue to be united by their shared observance of traditional laws and customs in relation to, amongst other things, land and waters. Within that broad society exist subgroups with intramurally recognised rights and interests over particular areas of land and waters. That intramural recognition does not affect the observance by the broader group of Western Desert people (or “society”) of substantively the same traditional laws and customs. One of the critical aspects of Western Desert traditional laws and customs for the purposes of this proceeding is that individuals, families, or groups may move from one part of Western Desert country to another and may potentially obtain rights and interests in relation to the country to which they move.

20. Second, there were Aboriginal people in occupation of the claim area at sovereignty. They, or their descendants, remained in occupation when non-Aboriginal people took up a regular presence in the claim area, which appears to have been from the early 1890s. The laws and customs of those Aboriginal people remained essentially the same from 1829 to the 1890s. The State extends a concession about this status quo further forward in time, to approximately 1912. The State contends these people (which the State calls the “Ngaiawonga”) were not Western Desert people. The applicant (who, with reservations, adopted the term “Ngaiawonga” as well) contends they were Western Desert people, and that the ancestors of the claim group members moved into, and acquired rights and interests in, the claim area in accordance with Western Desert traditional laws and customs. It was, the applicant contends, a movement of Western Desert people within geographical areas governed by, and in accordance with, their traditional laws and customs.

21. In their statement of issues, facts and contentions, filed prior to the commencement of the hearing, the applicant said:

    Nevertheless, the influx of non-Aboriginal people into the Claimed Area in the late 19^th century and early 20^th century:

    (a) materially affected the access by the Aboriginal occupants of the Claimed Area to traditional water and food sources;

    (b) resulted in the spread of diseases to the Aboriginal occupants of the Claimed Area; and

    (c) resulted in conflict between non-Aboriginal people and the Aboriginal occupants of the Claimed Area, and/or between Aboriginal people in occupation of the Claimed Area and other Aboriginal people.

    The matters referred to in [the paragraph above] contributed to a situation where, by the early 20^th century, those Aboriginal people who were in occupation of the Claimed Area at sovereignty, and the biological descendents of the Aboriginal people in occupation of the Claimed Area at sovereignty, died or moved away from the Claimed Area.

22. It should be noted here that, in final submissions, the applicant was less absolute in submitting that all the original Aboriginal occupants of the claim area had either died out or left by or shortly after 1912. The applicant adopted a more nuanced position in final submissions which, as I develop below, is a position I accept.

23. Third, the applicant accepts that if the claim area was not part of the “Western Desert cultural bloc” (or, as I prefer to express it, was not part of Western Desert country) at sovereignty, then the claim group cannot have a connection to the claim area now by or through traditional laws and customs, because the claim group members are Western Desert people and their laws and customs are Western Desert laws and customs.

24. Fourth, it is common ground that most – and the State submits all – of the apical ancestors of the claim group members were born outside the claim area, generally to the east. It is this feature of the evidence which gives rise to what the State describes as the “migration” issue in this proceeding. Nevertheless, there is a complicated factual matrix concerning where the claim group members’ apical ancestors were born and lived, and what (if any) relationships they had with the Aboriginal people occupying the claim area at times between the late 1800s and approximately 1912. The State contends that, even if the Court rejects its submission that the claim area was occupied by non-Western Desert people at sovereignty, the applicant has not proven that, when the ancestors of the claim group migrated to the claim area, they acquired rights to the land in the claim area in accordance with Western Desert traditional laws and customs.

25. In my opinion, from these four sets of propositions, two lines of inquiry emerge. These are the lines of inquiry that I consider arise on the evidence and submissions; they may not dovetail exactly with the sequence of the parties’ submissions, but I am satisfied they reflect the substance of those submissions.

26. The two lines of inquiry are:

    (1)Who were the people occupying the claim area at sovereignty (that is, up until approximately 1912) and what happened to them after approximately 1912?

    (2)When did the claim group members’ ancestors move into the claim area, what was their relationship before that time to the claim area and to the Aboriginal people who held rights and interests in the claim area when the claim group members’ ancestors came to occupy and use the land?

27. The connection evidence and arguments should be assessed with a view to answering these two lines of enquiry. If these questions are answered favourably to the applicant, then the third question will be whether the applicant has proven the other matters required by s 223(1) of the NT Act, namely the content of the traditional laws and customs observed by the claim group members, whether by those laws and customs the claim group members have a connection with the claim area, and whether that normative system has continued substantially uninterrupted since sovereignty.

    Conclusions on the two broad inquiries and other connection issues

    Summary of my conclusions on who the people occupying the claim area at sovereignty were and what happened to them

28. I have found that the claim area was occupied at sovereignty by Western Desert people. I have found it is more likely than not that the land and waters of the claim area are, and always have been, Western Desert country. It is more likely than not that the people Daisy Bates called the “Ngaiawonga” were Western Desert people. In my opinion, it is impossible to say with any confidence that “Ngaiawonga” is an accurate label to apply to the people who had rights and interests in the land and waters of the claim area at sovereignty.

29. I have found it is unlikely that, as the State contends, none of the original inhabitants were in the claim area in the early twentieth century. I have concluded that some of the original inhabitants of the claim area were still occupying the claim area when the claim group members’ ancestors came into the country on a more permanent basis, and the claim group members’ ancestors had, or established, relationships with those people.

    Summary of my conclusions about when the claim group members’ ancestors moved into the claim area, and what their relationship was to the claim area and the Aboriginal people who previously occupied the claim area

30. The evidence in this proceeding suggests that the claim group members’ ancestors entered the claim area at various times, and had varying degrees of connection and contact with the Aboriginal people who occupied the claim area before sovereignty. I have concluded that at least some of the claim group members’ ancestors knew and interacted with the Aboriginal people who were in occupation of the claim area at sovereignty, and were themselves in and around the claim area at or before that time. It is more likely than not that some of the claim group members’ ancestors had, and were exercising, rights and interests in the land and waters of the claim area before Daisy Bates undertook her work to the north of the claim area. I have found that the original occupants of the claim area recognised the claim group members’ ancestors as Western Desert people entitled to acquire and exercise rights and interests in the country of the claim area in accordance with Western Desert laws and customs, and shared with them knowledge of the Tjukurrpa for the claim area.

    Summary of my conclusions on the remainder of the s 223(1) connection issues

31. I have concluded that the traditional laws and customs of the claim group which relate to the acquisition, transmission and exercise of rights and interests in land and waters have been continuously recognised and observed by the claim group and their ancestors in substantially the same form since sovereignty. I have found that there have been some adaptations of the traditional laws and customs of the claim group, but that these adaptations are within existing legal principles and do not reflect a lack of continuity with the normative system which existed at sovereignty.

32. I have concluded that the claim group members have established the existence at sovereignty and the continuous acknowledgment and observance of the following rights and interests in the claim area, in accordance with traditional Western Desert laws and customs:

    (a)the right to possess, occupy, use and enjoy the claim area, to the exclusion of all others;

    (b)the right to access, remain in, and use the claim area for any purpose;

    (c)the right to access and take resources for any purpose, including commercial purposes;

    (d)the right to engage in spiritual and cultural activities in the claim area;

    (e)the right to maintain and protect places and objects of significance; and

    (f)the right to receive a portion of any traditional resources (not including minerals or petroleum) taken from land or waters by Aboriginal people who are also governed by Western Desert law.

33. I have found that the applicant has not established the existence at sovereignty and the continuous acknowledgment and observance of:

    (a)The right to make decisions about the use and enjoyment of the land and waters in the claim area by other Western Desert people; and

    (b)A separate right to “protect resources and the habitat of living resources” in the claim area.

    Conclusions on extinguishment

1. The parties agreed there had been partial extinguishment of native title over the whole of the claim area. Accordingly, subject to the Court’s findings on s 47B of the NT Act, the parties agreed that the right of exclusive possession had been extinguished. The remainder of the extinguishment issues concern the parcels of land in the claim area where non-exclusive native title rights may still survive. Most of the tenure and extinguishment issues were agreed between the parties before trial.

2. Four main issues remain in dispute regarding extinguishment. They are:

   (a)Whether the renewals on 1 July 2015 of the pastoral leases that fall wholly or partially within the claim area are valid future acts;

   (b)Whether two miscellaneous licences (L53/161 and L53/177) were validly granted;

   (c)Whether seven specified miscellaneous licences are valid future acts; and

   (d)Whether s 47B of the NT Act applies to disregard extinguishment in specified areas of the claim area.

3. Determining the first three questions requires answering, among other things, the question whether compliance with applicable procedural requirements in Pt 2 Div 3 of the NT Act is a precondition to a future act having force and effect against native title.

4. On the first three matters, I have reached the following conclusions:

   (a)Non-compliance with the procedural provisions deprives a future act of validity in the sense of having full force and effect against native title interests. I have not adopted the obiter statements of the Full Court in The Lardil Peoples v Queensland [2001] FCA 414; 108 FCR 453;

   (b)The renewals of the pastoral leases on 1 July 2015 were valid future acts and each of the leases will be given the full force and effect against the applicant’s native title;

   (c)The grants of the miscellaneous licences L53/161 and L53/177 were invalid and have no force or effect in relation to the applicant’s native title;

   (d)In regard to the other seven specified miscellaneous licences, two are agreed to have been withdrawn and should not be listed on any determination as “other interests”. In relation to L36/129, this is now “dead”, but in any event I concluded that it satisfies either s 24IB(a) or (b) of the NT Act and, accordingly, the grant had full force and effect in respect of the applicant’s native title. I have concluded that the grants of the licences L36/144, L36/148 and L36/152 were invalid because the procedural requirements under either s 24MD(6B) or 24MD(6A) of the NT Act applied to these licences and were not complied with. Accordingly, I have concluded that these three licences are invalid future acts. Finally, in relation to L53/109, I have concluded, as the State appeared to accept, that it was granted without reference to Pt 2 Div 3 and, as such, is an invalid future act. Each of the licences I have found to be invalid future acts has no force or effect in relation to the applicant’s native title.

5. The parties divided the parts of the claim area to which claims under s 47B attach into eight groups, some of which include more than one parcel of Unallocated Crown Land (UCL): UCL 239, UCL 245 and UCL 246; UCL 14 and UCL 15; UCL 247; UCL 11; UCL 4, UCL 5, UCL 6 and UCL 10; UCL 8; UCL 240; and Road 13. I have found that s 47B(2) is not applicable to Road 13. In relation to the seven other areas, I have found that none of the miscellaneous or exploration licences which cover these areas render inapplicable the terms of s 47B. However, I have concluded that the applicant has only proved occupation of two UCL parcels: UCL 245 and UCL 246. In relation to these two UCL parcels, s 47B of the NT Act applies to disregard extinguishment. I have allowed the parties a further opportunity for submissions on the application of s 47B(2) to UCL 11.

   THE APPLICATIONS

   Tjiwarl #1

6. Tjiwarl #1 is the principal application for a determination of native title over the claim area. I deal with Tjiwarl #2 at [45] below.

7. The authorisation of the claim was referred to a meeting of the wati (initiated men) in accordance with traditional decision-making processes after the wider community could not reach consensus on certain issues (the claim name and the persons comprising the applicant). The meeting of the wati was held in September 2010. After the outcomes of that meeting were conveyed to the community, the authorisation meeting (for the purposes of s 251B of the NT Act) was held on 29 March 2011. The applicant filed the native title determination application on 17 June 2011. The claim was accepted for registration by the Native Title Registrar on 13 January 2012. There is no dispute that the Tjiwarl #1 claim was properly authorised within the meaning of s 61 of the NT Act.

8. At a case management hearing on 12 April 2012, orders were made by McKerracher J referring the application to mediation either by the National Native Title Tribunal or a Registrar of the Federal Court and requiring the parties to inform the Court of their preferred mediator by 20 June 2012. As the parties did not comply with that order, Barker J made a further order (administratively) on 29 June 2012, listing a case management hearing on a date to be fixed.

9. At the next case management hearing on 2 August 2012, Barker J vacated the mediation orders of 12 April 2012 and referred the application to a case management hearing before a Registrar to give the parties the opportunity to agree or otherwise recommend to the Court the processes by which the connection issues might be resolved by negotiation between the parties. A case management hearing was convened by Registrar Gilich on 17 September 2012 and an order was made requiring the applicant to file a statement of issues, facts and contentions, which the applicant filed on 20 November 2012. The State and several other respondents filed separate responses to the applicant’s statement of issues, facts and contentions.

10. A further case management hearing was held on 21 June 2013 to discuss the outstanding connection issues and to agree on a process to address those issues. At the hearing, the parties agreed that the outstanding connection issues could be addressed by the applicant and the State settling a series of questions that could then be the basis of an expert anthropological report by Dr Sackett. An order was made requiring the applicant and the State to settle such questions, which they did. Dr Sackett’s report was filed on 31 March 2014. I observe here that the questions asked at this stage did not, ultimately, cover anywhere near all of the matters on which Dr Sackett’s expert opinion was relevant. As Dr Sackett himself said, although the report comprehensively addressed all the questions asked of him, it was “not the normal native title [report] that would be provided to the court.”

11. Further case management hearings were held on 11 April 2014 and 16 April 2014, at which the State advised the Court that it required until the end of October 2014 to complete both a legal and linguistic review of Dr Sackett’s report. Case management hearings were also held on 1 August 2014 and 5 September 2014 to resolve outstanding issues and further prepare the matter for trial. On 5 September 2014, orders were made provisionally listing the application for trial and setting deadlines for the filing of outstanding documents. An experts’ conference was held on 24 and 25 June 2015 so that the two principal experts who had prepared reports for the Court in this matter could confer and prepare a joint statement.

    Tjiwarl #2

12. The Tjiwarl #2 claim was filed on 22 July 2015. The claim group is the same in both applications, although the persons comprising the applicant are different in each proceeding. In these reasons, when I use the singular word “applicant”, I refer to the applicant in both Tjiwarl #1 and Tjiwarl #2 as constituted.

13. The claim area in Tjiwarl #2 covers the UCL parcels in the Tjiwarl #1 claim area that the applicant claims s 47B of the NT Act applies to. These areas were not identified in the Tjiwarl #1 application, where the applicant stated, under a heading addressing the applicability of s 47B, among other provisions:

    No information at present, however should any or all of sections 61A(4), 47, 47A and 47B apply then the applicants will seek to ignore extinguishment in those areas.

14. Accordingly, the Tjiwarl #2 application did specifically identify the areas to which the applicant says s 47B applies.

15. On 27 July 2015, I made orders that Tjiwarl #1 and Tjiwarl #2 be heard together.

16. The State initially submitted that the filing of the Tjiwarl #2 application was an abuse of process. The following exchange occurred during opening submissions:

    MR RANSON:  They’re not opposed, your Honour. If it assists, we maintain the view that there is a difficulty with the Tjiwarl 2 application, and we suspect, ultimately, we will maintain our submission that it’s an abuse of process, but for present purposes we’re content that the evidence that might be relevant to it can be taken in these two weeks - they can be heard together - and - - -

    HER HONOUR:  And you will develop the grounds on which you say it can be dismissed which may or may not include - - -

    MR RANSON:  Yes. Your Honour might recall we had foreshadowed an interlocutory application seeking to deal with that before the hearing. We’re now content, on the basis of the amendment, that all of it can be folded into the hearing and dealt with at the same time.

17. The State’s argument was that, in making the Tjiwarl #2 application at a later date, the applicant’s intention was to require the Court to consider two relevant dates when determining (for the purposes of s 47B(1)(c)) whether the claim group members had occupied the areas said to be subject to s 47B. Aside from the passage I have extracted, the argument was not developed in the State’s final oral submissions (although it was mentioned once more in opening) and was not addressed in the State’s written submissions. Given the findings I have made on the occupation issues for s 47B, it is not necessary to determine the State’s argument, if indeed it remained a live submission at the end of the trial. The occupation I have found proven existed in 2011, as well as in 2015.

    THE CLAIM GROUP MEMBERS AND THE CLAIM AREA

18. There have been a number of previous applications for determination of native title that have covered some or all of the claim area. Some of the claim group members were actively involved in those applications. I refer to those previous applications where necessary. The State did not submit any of the previous applications precluded a determination of native title in this proceeding.

    The basis for membership of the claim group

19. By final submissions, there was some dispute between the applicant and the State concerning the basis on which the applicant proposed to ask the Court to make any determination of native title. The dispute centred on the description of the claim group.

20. Despite the considerable number of pages occupied in final submissions on this issue, in oral submissions at the final hearing counsel for the applicant submitted that the applicant’s case is and has remained as set out in [63] of their statement of issues, facts and contentions dated 20 November 2012. That paragraph states:

    The persons who hold the native title rights and interests in relation to the Claimed Area are those persons:

    (a) who, in accordance with the traditional laws and customs of Western Desert society, have a connection to the Claimed Area through:

    (i)        their own birth, or long association with the Claimed Area; or

    (ii)the birth, or long association with the Claimed Area, of their ancestors by which they claim country; and

    (b)in respect of whom that claim is recognised according to Western Desert traditional laws and customs.

21. It is also said by the applicant that the reason the claim group members hold rights and interests in the claim area as a group is that they “collectively have rights and responsibilities in relation to the tjukurrpa of the Claimed Area”.

22. Counsel for the applicant then emphasised that the claim group members were set out in [64] of the applicant’s statement of issues, facts and contentions. This states:

    The group of persons who satisfy those criteria at present are:

    (a)       In respect of paragraph 63(a)(i) – Lenny Ashwin; and

    (b)      In respect of paragraph 63(a)(ii), the descendants of:

    (i)        Alfie Ashwin;

    (ii)       Piman/Charlie Beaman;

    (iii)      Tjampula/Jumbo Harris;

    (iv)      Nampu/Scotty Lewis;

    (v)       Nimpurru/Spider Narrier;

    (vi)      Tjulyitjutu/Rosie Jones;

    (vii)     Kathleen Bingham;

    (viii)     Kurril/Scotty/Ted/Packhorse Rennie Tullock;

    (ix)      Pukungka/Dolly Walker;

    (x)       Manyila/Trilby; and

    (xi)      Dempsey James.

23. I deal with the situation concerning Lenny Ashwin at [63] to [64] below.

24. It is true that in their initial final written submissions, the applicant referred to other pathways such as conception, high ritual knowledge concerning the area, or responsibility for sites within the area. These pathways are referred to in other parts of the applicant’s statement of issues, facts and contentions (such as [15(a)]) as part of the laws and customs of Western Desert people, and the State admits that to be the case.

25. The variations are, I consider, explained by the applicant’s final submissions at [36(b)], which in turn refers to the applicant’s statement of issues, facts and contentions. At [46] of that document, the applicant contends that the “presently acknowledged” laws and customs governing the claim area emphasise parental and grandparental connection and long association with the claim area as pathways to obtaining rights and interests in land and waters in the claim area, rather than some of the other pathways which may in any given circumstances be available under Western Desert laws and customs, for example conception on country. The applicant contends this is an adaptation of traditional laws and customs. The State contests this.

26. Taking those submissions into account, together with what was said in final submissions and the confirmation that the applicant’s claim is as set out in [63] of the statement of issues, facts and contentions, I proceed on the basis that the applicant contends membership of the claim group is to be determined by reference to the smaller set of pathways set out in [63], while recognising that there are a larger set of pathways available under traditional Western Desert laws and customs.

27. I do not consider, contrary to the State’s submissions, that there has been any attempt by the applicant to elevate the claimant evidence about the various Tjukurrpa to some kind of independent pathway to acquiring rights and interests in the claim area. The Tjukurrpa is the principal manifestation of the claim group members’ rights and interests in the claim area; and a principal manifestation of their contended connection to the area. That is how I have understood the applicant to use the Tjukurrpa.

28. There has been a further issue raised by the applicant, concerning the terms of the description of native title holders in any determination of native title. In summary, the applicant contends for a description which embraces people not yet born who might acquire rights through pathways other than descent. The State contests the appropriateness of any such terms in any determination. The State proposes, and I understand the applicant to accept, that any such issues can await the Court’s decision on the contested matters, and then be dealt with by agreement, or further submissions and determination if need be.

29. In this case, aside from the matters I refer to later in these reasons in terms of how the claim group members’ ancestors came to be in the claim area, there were no particular disputes between the parties, nor disputes arising with any other group of people, about who comprised the claim group. Those who claim rights in the claim area identify with one or more of the apical ancestors.

30. However, I should here mention Lenny Ashwin, who was one of Dr Sackett’s older informants and who was specified as one of the people who satisfies the criteria necessary to hold rights and interests in the land and waters of the claim area. Lenny Ashwin’s mother (Pikuyu, her non-Aboriginal name being Doris) was the sister of Alfie Ashwin, one of the apical ancestors in the claim group. Dr Sackett notes in his report that Lenny Ashwin gave at least two differing accounts of where he was born, one of which was that he was born in the claim area.

31. In final submissions the applicant accepted that, because Lenny Ashwin is now deceased and there are no people who seek to claim rights through him, he should not be included in any determination. The applicant also seemed to accept that the evidence about Lenny Ashwin having been born in the claim area (which was said by the applicant to be the source of his rights to country) was equivocal.

    The composition of the claim group

32. The claim group includes, in no particular order, the following persons who each gave evidence in support of the application: Jennifer Narrier, Keith Narrier, Richard Narrier, Kado Muir, Allan Ashwin, Henry Ashwin, Victor Ashwin, Edwin Beaman, Leroy Beaman, Shirley Wonyabong, June Tullock, Allan James, Brett Lewis, Luxie Hogarth, Geraldine Hogarth, Douglas Bingham and Dallas Harris. My understanding is that each family group within the claim group had one or more family members who gave evidence.

33. Ms Narrier, Mr Keith Narrier, and Mr Richard Narrier are siblings and are descendants of two apical ancestors: Dolly Walker (Pukungka) and Spider Narrier (Nimpurru). Mr Muir is the half-brother of Ms Narrier, Mr Keith Narrier and Mr Richard Narrier, sharing the same mother. He is a descendant of Dolly Walker (Pukungka).

34. Mr Allan Ashwin, his younger brother Mr Henry Ashwin, and Mr Allan Ashwin’s son Mr Victor Ashwin are all descendants of Alfie Ashwin. Mr Edwin Beaman and his son Mr Leroy Beaman are descendants of Charlie Beaman (Piman).

35. Ms Wonyabong is a descendent of Trilby (Manyila). Ms Tullock is a descendant of Scotty (Ted) Tullock. Mr Allan James is a descendant of Dempsey James. Mr Brett Lewis is a descendant (by adoption) of Scotty Lewis (Nampu). Ms Geraldine Hogarth is a descendant of Rosie Jones (Tjulyitjutu). Mr Bingham is a descendant of Kathleen Bingham. Ms Harris is a descendant of Jumbo Harris (Tjampula).

36. The applicant’s submission, which I accept, is that the claim group members constitute a group capable of recognition under the NT Act because they are all persons who, under Western Desert laws and customs, have rights and responsibilities for the Tjukurrpa of the claim area. The evidence clearly establishes that they recognise each other as members of the group, with rights and interests under traditional laws and customs in all of the claim area, but with differing rights and responsibilities for particular parts of the claim area. The division of responsibility is in accordance with the pathways mentioned above: namely, birth or long association of the claim group member or their ancestors.

    A claim for group native title

37. The applicant identifies the nature of the native title rights claimed as group rights. They submit:

    A finding of group native title within the broader Western Desert cultural bloc society was made in De Rose v South Australia. The Full Court in De Rose v South Australia (No.2) (2005) 145 FCR 290 at [44] said:

    “ … the appellants claim to be Nguraritja for the claim area and, by virtue of that status, they have common rights and responsibilities under the laws and customs of the Western Desert Bloc in relation to the claim area (although not necessarily in relation to precisely the same sites or tracks). Moreover, the appellants claim on behalf of all people who are Nguraritja for the claim area. The composition of that class will vary from time to time depending upon who can satisfy the rules identified by the primary judge for identifying Nguraritja … On the appellants’ case, native title rights and interests over the claim area will not cease on the death of the last survivor among them.”

    This is consistent with what has been said in a line of cases concerning the nature of a native title claim group under the NTA. In Brown v State of South Australia [2009] FCA 206 at [19] Besanko J said that a native title claim group under the NTA is a group consisting of all the persons who, according to their traditional laws and customs, have the common or group rights or interests comprising the particular native title claimed. At [20] his Honour noted however that: “it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group”.

    The facts and findings in De Rose on this issue were also discussed by Lindgren J in Harrington Smith v Western Australia (No. 9) [2007] FCA 31; 238 ALR 1 at [503]ff. In that case his Honour distinguished De Rose on the facts. At [930] he concluded that there were people outside the various claim groups who had rights and interests within or partly within the various overlapping claim areas, and people within the claim groups who had rights and interests at least partly outside the claim area of their claim group. His Honour said: “The level and form of aggregation has been adventitious, resulting from political affiliations at the times when the respective groups were composed. In the overlap areas, individuals might just as well have been in a different group. Pre-sovereignty laws and customs have not dictated the existence of the groups or their composition”. See also [1154]-[1159].

    This claim is clearly distinguishable from Harrington-Smith. It is brought on a similar basis to that in De Rose i.e. on behalf of a group that exists in accordance with traditional law and custom, being all the persons who together have rights and responsibilities in relation to the tjukurrpa of the Claimed Area in accordance with the mechanisms referred to in Applicants SIFC [15(a)]. See Applicants SIFC [15(b), (c)], [31], [32], [36]-[38], [42]-[47], [63]. Those mechanisms include, as a necessary condition, recognition. Thus if it is correct to say that group rights do not arise directly from the laws and customs of the society but are mediated through the group (cf paragraph 127), then that is satisfied in this case because those members of the native title holding group from time to time are those whose claim to have rights in the Claimed Area through one or more of the possible mechanisms (or pathways) must be recognised by the group as having such rights. That is the case with the claim group referred to in Applicants SIFC [64].

    As with De Rose, the claimants do not claim to be a linguistic or dialect group. Also as with De Rose, the Claimed Area principally comprises pastoral stations which fall within a larger area in which the claimants have rights and interests (see Harrington-Smith (No.9) at [512]). The Applicants do not understand those matters raise any issue in these proceedings.

1. The State did not cavil with these propositions and their application to the current proceeding.

2. I accept the applicant’s submissions, and proceed on the basis the group has been sufficiently identified.

   The claim area boundaries

3. The northern, eastern and southern boundaries are by reference to pastoral lease boundaries and are therefore arbitrary. The western boundary is by reference to two sets of ranges (Montague Range and Booylgoo Range), thus by geographical features, and is explained in the evidence by the claimant witnesses by reference to the outer limits of the country for which they can speak.

4. Mr Keith Narrier addressed the artificiality of the boundary from the claim group members’ perspective, and by particular reference to the Barwidgee area, outside the north-east claim boundary. His evidence is emblematic of why some flexibility needs to be applied to the evidence (lay and ethnographic) about “areas” and “boundaries”, because lines on maps in the way the NT Act compels them to be drawn do not reflect traditional understandings, in accordance with Aboriginal laws and customs, of boundaries and, it would appear, particularly not for Western Desert people. Mr Narrier explained:

   My father’s country is all that there now; that Tjiwarl claim. But he was born in Barwidgee. Both sides are special to him, they didn’t have boundaries like this here today; they just travel around up and down like that. I don’t know why they have the boundary like this; that’s Tjiwarl country they just put it like that. The old people didn’t have this boundary, nup. They still would have went past that boundary, it didn’t make any difference to them, It’s the same today, we don’t have boundaries like this [claim boundary].

5. Mr Allan Ashwin gave similar evidence, in unequivocal language:

   We don’t have boundaries, that’s bullshit. Country is country; you go from one waterhole to the next. Like when people used to go before any stations was there, people would go from water to waterhole, where there is permanent water like a spring.

   When it’s a good season they go to all the little rockholes from one claypan to the next. There was no boundaries, they know that they go one side there might be a family group over there; they might make a fire and that other family would make a fire and they would see the smoke and go over. There’s a water hole over there they might go and meet, they know that’s their country and this is our country, like that.

   Sovereignty: dates

6. It is not in dispute in this proceeding that the date of sovereignty, in relation to Western Australia, is taken to be a reference to 2 May 1829, being the date on which the British government formally took possession of what was then called the Swan River Colony: see Western Australia v Commonwealth [1995] HCA 47; 183 CLR 373 (Native Title Act Case) at 424.

7. The parties, and in particular the State, also accept that there were no Europeans in the claim area, or regions around it, until the late 1800s. The State accepts that the group of Aboriginal people who were in occupation of the claim area in the late 1800s were the same group of people (or their descendants) as those who were in occupation at sovereignty in 1829.

8. As I have already noted, the State also accepts that the same group of Aboriginal people remained in occupation of the claim area into the early 1900s, until around 1912. In final submissions, counsel for the State accepted the proposition that, whichever Aboriginal people were occupying the claim area in around 1912 (at the time Daisy Bates conducted her research, including speaking to some informants who told her about the situation in areas covered by the claim area), were likely to have been the same people who occupied the claim area at sovereignty. The State’s thesis is that those original occupants left or died out and the claim group members’ ancestors moved in from about the 1920s onwards (but mostly between the 1930s and the 1950s) introducing their own Tjukurrpa to the country, and that is what was passed on thereafter.

   History of non-Aboriginal presence in the claim area

   Early contact with non-Aboriginal people

9. There is no historical record of non-Aboriginal people being present in the claim area before the second half of the nineteenth century. Non-Aboriginal people moved occasionally through the claim area in the second half of the nineteenth century.

10. In 1869, John Forrest’s party passed through the claim area, naming Depot Springs, Mount Leonora and other geographic features, as well as commenting on encounters with Aboriginal residents. In 1892, the Elder Scientific Exploring Expedition crossed part of the claim area.

11. From 1892, David Carnegie prospected in and around Coolgardie and, in 1895, moved to the Lawlers and Lake Darlot areas. He later described the mining camps already established there. Carnegie also wrote of the involvement of Aboriginal people in prospecting expeditions:

    A good many prospectors, depending on their black-boys almost entirely, wander from one range of hills to another, dodge here and there for water, keep no count or reckoning, and only return by the help of their guide when the “tucker-bags” are empty ...

    (Footnotes omitted.)

12. In 1896, Lawrence Wells passed through the Lake Way area with the Calvert exploration party. May Vivienne travelled through the claim area from 1899 and later wrote and published a book about her experiences. H.G.B. Mason, a surveyor, travelled through the Sandstone region and the western part of the claim area in 1900.

13. As well as Daisy Bates, the anthropologists Norman Tindale, Jud Epling and J Birdsell all spent time in the claim area on expeditions during the 1920s and 1930s.

    Early mineral discoveries

14. The early 1890s, when gold was discovered in the area, was the beginning of a more consistent non-Aboriginal presence in the claim area.

15. By 1892, approximately 3,000 prospectors were arriving in Western Australia each month, most of them streaming out to the Eastern Goldfields and Murchison Goldfields. Gold was discovered in or near the claim area:

    (a)at Leinster in 1892;

    (b)at Lawlers in 1894;

    (c)at Leonora in 1894;

    (d)at Sir Samuel in 1895;

    (e)near Wiluna (at Lake Way) in 1896;

    (f)at Kathleen Valley in 1897;

    (g)at Sandstone in the early 1900s; and

    (h)at Vivien in the early 1900s.

    Non-Aboriginal settlements

16. As a result of the discovery of gold, more permanent settlements arose across the claim area from the mid-1890s. The claim area overlapped the East Murchison Goldfield, which was proclaimed in May 1895.

17. Within 12 months, there had been 200 gold-mining leases taken up and Lawler’s Patch (Lawlers) had been chosen as the centre of the district. By 1896, gold was also being sought at reefing centres including Lake Darlot, Lake Way and Mount Sir Samuel.

18. From 1895, railway lines were extended from Cue to Mullewa to shorten the distance for carting goods, water and mail, which came across from the Murchison Goldfields district to the west (rather than from the Kalgoorlie area).

19. Town sites were gazetted at:

    (a)Lawlers in 1896;

    (b)Sir Samuel in 1897;

    (c)Leonora in 1898;

    (d)Wiluna in 1898;

    (e)Kathleen (formerly Kathleen Valley) in 1900;

    (f)Vivien in 1906;

    (g)Sandstone in 1906; and

    (h)Leinster in 1981 (although workings developed in the area in 1899-1900 and significant production of gold occurred between 1900 and 1906).

20. By 1900, the population of the East Murchison Goldfield was 1,209. A railway link from Leonora to Kalgoorlie opened in 1902. A weekly mail service operated from Mount Magnet to the East Murchison Goldfield by 1903. Western Australia’s gold production peaked in 1902 and was in decline until 1930, when production began to increase again.

    Pastoral activity in the area

21. Pastoral interest in the claim area grew after the initial peak of gold production had passed (that is, from around the start of the twentieth century).

22. By 1903, the East Murchison area was described as a “promising pastoral district”, with The West Australian reporting: “Nearly the whole of the country around Lake Darlot and Sir Samuel has been taken up in leases, and stocking operations are in progress”.

23. By 1928, pastoral operations were well established in the Goldfields from Sir Samuel to Wiluna, including: Lake Violet, Yakabindie, Vandal, Munroe, Mount Grey, Banjewarn, Bandya, Depot Springs, Mount Keith, Albion Downs, Lake Way, and Abercrombie Well.

    Aboriginal employment in the pastoral industry

24. Aboriginal people were employed on pastoral leases in the claim area throughout the twentieth century. In 1909, Keyser reported that Aboriginal people were working on a station near Lake Darlot. Aboriginal people “also gave a hand at various times” on Yeelirrie Station in the 1920s.

    Government authorities

25. Government authorities such as the Protector of Aborigines operated in the claim area from the early twentieth century. C.A. Bailey inspected the claim area in 1896-1897 in order to provide a report for the Aborigines Protection Board.

26. Travelling inspectors visited the claim area throughout the early twentieth century on behalf of the Protector of Aborigines, reporting on the conditions of Aboriginal residents.

27. In the early twentieth century, rationing for Aboriginal residents was provided at various locations in and around the claim area, including Lawlers and Wiluna.

    Other authorities

28. Aboriginal people also encountered other authorities in the claim area over time. Aboriginal people were utilised as trackers or assistants by the Western Australia Police throughout the late nineteenth and early twentieth centuries. A tracker was requested for Lawlers Police Station in 1926.

29. In 1955, the Wiluna Mission was established by the Western Conference of the Seventh Day Adventist Church. The mission also operated a kindergarten and a primary school and sought to arrange station employment for a number of older children in the wider adjoining area.

30. Several hundred Aboriginal families attended the mission in the years of operation, through to 1975. The Wiluna mission became the Nganganawili Village in 1983.

    THE COURSE OF THE TRIAL

31. The trial was divided into two parts: an on country hearing dealing with connection issues and a further hearing in Perth dealing with expert evidence and extinguishment issues. Final submissions were also taken in Perth.

    Connection hearing in July 2015

32. The connection hearing was held at a number of locations throughout the claim area. When not travelling, the Court convened in Leinster. The Court convened exclusively at Leinster on the final two days of the hearing and also on the fifth day of the hearing.

    Day one: 27 July 2015

    Henry’s Well/Ngarlpurti

33. After the parties’ opening submissions, the Court travelled to the site of Ngarlpurti, also known as Henry’s Well. Ngarlpurti is associated with the Two Carpet Snakes Tjukurrpa and also with the Dragonfly Man Tjukurrpa. A chain fence cordons off two small rock holes which form part of these Tjukurrpa. The remains of a concrete water tank and a windmill also lay at this site. Ms Wonyabong and Mr Muir gave some of their evidence at Ngarlpurti.

    Townsend Well/Tjumpurka (view only)

34. The Court attended Tjumpurka for a view of the site only. The site, which was under water at the time of the on country hearing, is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. No evidence was given at this site.

    Lake Miranda/Yulkapa

35. In the afternoon of the first day of the hearing, the Court attended Yulkapa, a red sand hill located inland from the banks of Lake Miranda. Yulkapa is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. Ms Wonyabong, Mr Muir and Mr Leroy Beaman gave evidence at Yulkapa.

    Day two: 28 July 2015

    Yakabindie Claypan/Yakamuntu

36. On the second day of the hearing, the Court attended Yakamuntu, a large claypan located on Yakabindie Station. Yakamuntu, which was underwater at the time of the on country hearing, forms part of the Two Carpet Snakes and Dragonfly Man Tjukurrpa. Both Ms Wonyabong and Mr Muir gave evidence at this site.

    Jones Creek/Ngurlu Wiriwiri

37. After attending the Yakabindie claypan, the Court drove to Ngurlu Wiriwiri, also known as Jones Creek. Ms Tullock gave evidence at this site, including that her father was born at Jones Creek, although she was unable to recognise the crossing the Court attended.

    Mail Change Well/Tjilpur

38. The Court then attended Tjilpur, which is also known as Mail Change Well. This site is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. Mr Muir was the only witness to give evidence at this site.

    Logan Spring/Tjiwarl/Tjiwarl Rock and Tjiwarl Soak

39. On the afternoon of the second day the Court attended Tjiwarl, also known as Logan Spring. Tjiwarl, which means “shining”, is the site from which the claim area takes its name. A large gum tree stands at the base of a natural spring. A rock at the base of the spring is carved with the date “1920”. A large rock face is located adjacent to Tjiwarl. Tjiwarl is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. Ms Wonyabong, Mr Muir and Mr James gave evidence at Tjiwarl.

    Day three: 29 July 2015

    Palm Sping/Pii

40. On the third day of the hearing, the Court travelled to Pii (also known as Palm Spring), a natural spring surrounded by palm trees. The area is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. The Court was welcomed by Mr Muir and several other male claim group members to the area. Strangers to the area were invited to cleanse themselves with water from the natural spring. Ms Wonyabong and Mr Muir gave evidence at this site, including on the relationship of this site to the Two Carpet Snakes and Dragonfly Man Tjukurrpa.

    Yakabindie Homestead

41. On the afternoon of the third day of the hearing, the Court convened in the grounds of the Yakabindie Homestead. Ms Wonyabong and Ms Tullock completed their evidence at the Yakabindie Homestead. Yakabindie Station and the Yakabindie Homestead are important areas for many of the individuals who gave evidence at the hearing.

    Day four: 30 July 2015

    Pulyku Quarry

42. The Court commenced the fourth day of the hearing at the Pulyku Quarry. The Pulyku Quarry is covered by shale rock and quartz. Mr Lewis gave evidence at the Pulyku Quarry. A mound above the quarry provided a vantage point.

    The Lady

43. The Court later attended a site known as The Lady. The site is named after a rock formation that resembles the profile of a female face. The Court convened at the top of a large rocky outcrop. Mr Lewis gave both non-restricted and male gender restricted evidence at The Lady.

    Booylgoo Range/Pulyku

44. The final stop on the fourth day of the hearing was at Booylgoo Range, also known as Terracotta or Pulyku. The low mountain range is associated with the wild potato Tjukurrpa. Ms Narrier, whose totem is the wild potato, gave evidence at the site. Ms Narrier demonstrated how a wild potato can be found and showed the Court that vines entangled in trees and shrubbery indicate the presence of wild potatoes in the earth below.

    Day five: 31 July 2015

45. The fifth day of the hearing was held at the Leinster Tavern.

    Day six: 2 August 2015

    Mount Townsend and Mount Marion

46. On the sixth day of the hearing, the Court convened at a location close to both Mount Townsend and Mount Marion on the Sandstone-Wiluna Road. On the way to the location, the Court stopped at a rock hole on Yeelirrie Station Homestead. The area is associated with a Tjukurrpa story restricted to initiated men. Mr Allan Ashwin and Mr Victor Ashwin gave unrestricted evidence before the luncheon adjournment. Following their evidence, a kangaroo was slaughtered and prepared in the traditional way by an initiated male member of the claim group. Mr Allan Ashwin and Mr Bradley Wongawol showed the Court the traditional method of butchering and cooking the animal. Following the demonstration, the Court travelled further along the Sandstone-Wiluna Road where Mr Allan Ashwin, Mr Victor Ashwin and Mr Keith Narrier gave male gender restricted group evidence. Mr Richard Narrier and Mr Henry Ashwin were also present, as was Dr Sackett. Following the restricted evidence, the Court shared in eating the kangaroo that had been prepared and cooked in the traditional way, along with damper cooked by claim group members.

    Day seven: 3 August 2015

    Leinster Soak/Warkarra and hearing venue

47. The seventh day of the hearing commenced at Leinster Soak, also known as Warkarra. Members of the claim group welcomed the Court to the area through song. A hole was then dug out of the earth. Shortly after the hole was dug out, water rose up from underneath the ground, filling the hole with water. The Court then walked to the top of a rocky outcrop to view the surrounding area.

48. The Court then convened back at the hearing venue, where Ms Luxie Hogarth, Ms Geraldine Hogarth and Ms Harris gave evidence.

    Day eight: 4 August 2015 and day nine: 5 August 2015

49. The eighth and ninth days were held at the hearing venue at the Leinster Tavern.

    Further tranches of the proceeding held in Perth

    Expert and extinguishment evidence: 27-29 October 2015

50. There was a further tranche of the proceeding held in Perth over three days in October 2015, during which Dr Clendon gave expert linguistic evidence, the parties discussed and, in the case of the first respondent, led evidence in relation to extinguishment issues, and the two principal experts who prepared reports for the Court in this matter (Dr Sackett and Dr Brunton) participated in a concurrent expert evidence session.

    Final submissions: 8-10 December 2015

51. Final submissions were heard in Perth from 8-10 December 2015.

    CLAIMANT WITNESSES

    My approach to the claimant evidence

52. There is no suggestion that any claimant witness in this proceeding was doing anything but their best to give accurate and reliable evidence.

53. As the applicant’s submissions point out, there was no real challenge in cross-examination to the credibility of the claimant evidence. There were, however, points of detail which were challenged as to accuracy; where those are significant, I examine them elsewhere in these reasons.

54. Some witnesses may have been more forthcoming than others. Some might be said to have more direct sources. Some might be said to have given more of a contemporary flavour to their evidence: this factor might mean that some witnesses’ evidence has more relevance to historical issues of connection, and other witnesses’ evidence has more weight in relation to continuity. Overall, I found the claimant witnesses to be persuasive. I say more about each witness below. However, there are some propositions fundamental to my approach to what the claimant witnesses have said in this proceeding which I should make clear.

55. In the absence of any challenges to credibility, I have taken what the claimant witnesses have said about their family history and their connection to country as their true understanding. That is in the context of a culture where identification with country, rights to country and entitlement to speak for and protect country are paramount. I do not accept that the claim group members and their ancestors have somehow invaded or usurped the claim area and purport to speak for it without genuine belief that they, and their ancestors, have authority to do so. Acceptance of the State’s case involves accepting that the grandparent generation of the claim group were purporting to do something they were not entitled to do: that is, to speak for country with which they had no traditional connection through laws and customs. It seems to me it also involves accepting that they knew they had no such authority. There is no basis to find that is what they were doing.

56. In a different context under cross-examination, Dr Clendon made a similar point in relation to Bates’ informants:

    I mean, what you’re saying is certainly possible, but if people are coming out reporting to Daisy Bates that they are from a particular place and they speak a particular language, it’s likely that they were from that place and they did speak that – that language.

1. Having had the benefit of seeing Mr Ashwin and other claim group members in this area and how they used it, including for the catching of kangaroos (as occurred during the on country hearing), it is my opinion that the claim group members do convey a sense of being established in this area. I also had the benefit of seeing how the senior men behaved in this area during the restricted men’s session.

2. To this, I would add the evidence of the other witnesses which, although it suffers from the weaknesses identified by the State in its submissions, confirms the importance of the area as an area for hunting and bush tucker (especially emu eggs), which claim group members consider they are entitled to access as and when they wish to.

3. Viewed as a whole, in my opinion there is sufficient evidence for me to be satisfied that the claim group members, and especially Mr Allan Ashwin and his family, occupied the areas of UCL 245 and UCL 246 on 17 June 2011 and 22 June 2015, when the Tjiwarl #1 and #2 applications were respectively lodged.

   UCL 14 and UCL 15 (Tjiwarl/Logan Spring)

4. These two UCL parcels cover the place of which this application bears the same name: Tjiwarl. The European name for this place is Logan Spring. This area also featured in the on country hearing, on 28 July 2015.

5. The evidence relied on by the applicant for occupation of these two UCL parcels comes from Mr Muir, Mr Bingham, Ms Wonyabong and Mr James. Three of those witnesses gave evidence of visits to the area, sometimes on more than one occasion. Mr Muir’s evidence was of a different nature and I consider it separately. Mr Bingham described in his evidence how, although he had been to the location as a child and young person, it was not until 24 April 2015 that he went there again. He recalled being shown the place by “old blokes” he had been hunting with, and also by his sister. He described the area as being good for black goannas. In my opinion, his evidence is of little probative value, being a single visit shortly before this proceeding. The same can be said for Ms Wonyabong’s evidence: although she described much more regular visits with the station owner of Yakabindie, Mr Adamson, in the 1970s and 1980s, it is clear there was a long gap before she came back. I say that not to suggest any diminution, for her or any other claim group members, in the significance of the site, but rather to observe that she had not been able to physically return to the area for a long time. When she came in May and June 2015 it was with CDNTS for the purposes of this proceeding. Visits of that kind cannot indicate occupation within the terms of s 47B.

6. Nor do I consider Mr James’ evidence sufficient to establish occupation by him, although the sincerity and depth of his connection to Tjiwarl was plain from his evidence. He described going to Tjiwarl frequently around June 2011, when he was working for BHP Billiton. He worked for the company between 2009 and 2012, and the nature of his role meant he was often out and about all over the claim area. This was his evidence:

   When I was working with BHP Nickel West I was on a roster and I was fully based at Mt Keith and my role meant that I could go anywhere in this claim, wherever I needed to. Between 2009 and 2012, by reason of my position at Nickel West as a social responsibility manager, I was actually one of the directors of a number of the pastoral holdings in the claim area, including Albion, Yakabindie, Leinster Downs, Mt Keith and Weebo. When they did surveys out on BHP Nickel West tenements, I would assist and support the coordination with the group and sometimes have the opportunity to go out on country with them as work allowed. It was a great opportunity to stay in touch with everybody.

   I left BHP Billiton at the end of 2012, I was permanently based there at that time and part of my role was in the community relations sphere, so I often went out to Albion Downs to deal with the pastoralist at the time. I would try and go out to Logan Springs at least every day and sit on the granite rock and just relax there. That particular spot for me is one of the most peaceful places I’ve been to. I was working twelve hour days at that time and if I wanted to have my lunch or something I would jump in the car and drive there because it was only a fifteen minute drive from the mine site and go out there and sit on the rock for about thirty minutes. With modern technology, I could even bring my laptop there and answer my emails with my lunch while gazing off into the flats. It was the best working environment on the planet!

7. Mr James also described a plant found near Tjiwarl, which he would use:

   There are karkula’s there near Logan Springs, which I would have been eating in June 2011. There is also a particular plant there that has a lemongrass smell and when I was growing up we would use it to crush it up and smell it, it was like a natural deodorant and it can also be used for sores and other medical reasons. I would have been using that when I went to Logan Springs on my lunch breaks in June 2011. I used to take it back on the plane for my family, when I had to return to Perth.

8. Mr James then described a sign that had been erected at Tjiwarl by BHP Billiton, and his attitude towards it:

   There’s a sign there at Logan Springs that says, “Do not enter” but I just ignore that. People wouldn’t stop me from visiting those places in the [Tjiwarl] claim. If they tried to, I would just ignore them, but it just never happened. I don’t feel threatened or challenged by anyone because I have as much right to be there as anyone, it’s where I spent my childhood and where my father is from.

9. This evidence demonstrates that for a period of time coinciding with the lodgement of Tjiwarl #1, Mr James was a regular visitor to Tjiwarl, and that the area meant a great deal to him. However, he was not going there for any reason that had to do with asserting or exercising any possessory rights over the area, and I contrast this with the evidence from Mr Allan Ashwin about UCL 245 and UCL 246 in particular. Rather, Mr James was revisiting a favourite place on his country to have his lunch, and get some peace and quiet. His evidence about the BHP sign made it clear he considered it did not apply to him, and that is some evidence of entitlement, I accept. Overall, I consider this kind of activity had an opportunistic character to it, which is insufficiently consistent with the concept of occupation under s 47B.

10. There was some evidence and submissions about the “[d]o not enter” sign erected at Tjiwarl by BHP Billiton, and to whom it was directed: that is, whether to claim group members as well as to tourists or other locals. I consider that issue to be marginal on the question of occupation for the purpose of s 47B. The evidence did not rise to the level of any action taken by BHP to keep people out and I do not consider, in the context of a native title claim, that the erection of a sign by a mining company is probative one way or the other of entitlements to land.

11. That leaves the evidence of Mr Muir, who described living in a caravan at Tjiwarl for eight months in the early 1990s. His evidence was that he also went to Logan Spring on 20 May 2015 with an anthropologist and then again on 3 June 2015. While evidence of a claim group member having lived on the Tjiwarl site for a period of eight months may well have been evidence of the kind to satisfy s 47B(1)(c), the timing of Mr Muir’s residence there is not consistent with the requirements of the provision. If, since that time, he had maintained a regular presence or regularly gone to camp there, or something of that nature, then in combination it may well have been enough. However, isolated to a period in the 1990s with only two subsequent visits for quite different purposes, it is insufficient for the applicant to discharge their burden in relation to Tjiwarl under s 47B.

    UCL 247 (south of Mail Change Well)

12. This area is just south of what is known as Mail Change Well, which itself is north of Yakabindie station in the east of the claim area. Evidence in support of the occupation claim for this small area comes from Mr Bingham and Mr Muir. Each gives evidence of a single visit in April and May 2015 respectively. This evidence is plainly insufficient for the purposes of s 47B.

    Part of UCL 11 (Yakabindie)

13. UCL 11 is the parcel of land on which the homestead of Yakabindie station is situated. The Court held part of the on country hearing on this site on 29 July 2015. How the homestead block came to be unallocated Crown land and not part of the pastoral lease was not explained in the evidence.

14. There are two key pieces of evidence about the occupation of this UCL.

15. The first comes from Ms Wonyabong, who moved to a house at Yakabindie in 1976 or 1977. The Court saw her house, which is perhaps 50 m to one side of the main homestead. Although she described the house as “too old” and full of white ants and so not really habitable, in her oral evidence she claimed an ongoing entitlement to live in it nevertheless:

    Dominion wrote a letter, said I can stay here long as I like.

16. Other witnesses, such as Mr Edwin Beaman, described going to visit Ms Wonyabong there. Ms Wonyabong moved out in the 1980s or 1990s. However, she gave evidence that, at the time of the on country hearing, another claim group member, Creamy Allison, lived on another house at Yakabindie station and had done so for 20 years. Ms Narrier and Mr Muir confirmed this. Mr Allison’s house, which is about 70 m away from the main homestead, on the other side of the homestead driveway, was pointed out to the Court during the on country hearing.

17. The State relies on the findings of Merkel J in Rubibi (No 7) at [98], where his Honour rejected a claim for occupation of an area under s 47A, finding that residence in one of two houses on an area by a claim group member was not sufficient to establish occupation of the whole area. This finding was made in relation to an area in Broome called Walcott Street and identified as “Area 354”. It was a freehold block held by the Mamabulanjin Aboriginal Corporation, and there were two houses on it, only one of which was occupied by a claim group member. Merkel J found that occupation for the purposes of s 47A(2) had to apply to the whole area, and since only one of the two houses was occupied by a claim group member, that was insufficient.

18. There is no doubt that Mr Allison, a claim group member, occupied part of UCL 11 at 17 June 2011 but whether also at 22 June 2015 is unclear. Ms Narrier’s evidence about him having to go to Geraldton and Meekatharra for “his eyes” was, as the State submits, somewhat hard to follow, and it was second-hand hearsay, coming from one Malcolm Shay whom Ms Narrier told the Court was currently living in the house. There is no evidence whether Mr Shay is a claim group member. Mr Muir also gave evidence about Mr Allison living in the house. On balance, I am prepared to find, in the applicant’s favour, that Mr Allison still “occupied” the house in June 2015, even if from time to time for medical reasons he was absent, perhaps for long periods.

19. There is no doubt Ms Wonyabong had occupied another part of UCL 11 for a significant period of time until the 1980s or 1990s, and it may be the case (the State did not dispute her evidence) that she could, theoretically, move back into her house there if it were habitable, on the basis that the lessee of the Yakabindie pastoral lease had no objection (although, if the land is Crown land, it is difficult to see what role, other than a practical one, there was for the opinion of the pastoral lessee). The difficulty is that the main Yakabindie homestead is very much occupied by those responsible for managing Yakabindie station. Their tenure was also not explained in the evidence. It was clear from the on country hearing that the station managers use all the sheds and other buildings in this UCL parcel. They do not appear to use Ms Wonyabong’s house, but it is agreed to be basically unusable. They clearly give Mr Allison his space and privacy. Mr Allison’s tenure was not explained in the evidence either.

20. Therefore, the evidence is that, over what is a fairly small parcel of land, being essentially the homestead block for Yakabindie station, there were two claim group members who considered they had, and whom others accepted had, possessory rights to part of that area. On the evidence neither asserted, or was recognised as having, possessory rights over the whole of the homestead block. The State submits this is the determinative factor. There have been long-term non-Aboriginal occupants of this area of land: on the agreed facts, Yakabindie was established by 1928 and I infer the homestead has been in existence for many decades.

21. If members of the native title claim group need to be “established” over the whole area of a UCL parcel, rather than part of it, then the occupation by Ms Wonyabong and Mr Allison – essentially coexisting with those non-Aboriginal people who have occupied the Yakabindie homestead block – would be insufficient for the purposes of s 47B. However, the applicant appears to advance an argument that s 47B could apply to such parts of a UCL parcel.

22. As I noted at [1216] above, in the context of the disapplying provisions in s 47B(1)(b), the applicant made a submission to the effect that if the Court found one of the permissions or authorities relied on by the State disapplied s 47B(2), then the disapplying effect should only extend to so much of the land as the permission or authority covered. I noted that it was not necessary for me to determine this argument because I had not accepted the State’s arguments that any of the disapplying provisions in s 47B(1)(b) applied to the UCL parcels in contention under s 47B.

23. What I have described as the ‘mirror’ of this point does arise for consideration in the context of the facts as I have found them in relation to the occupation of UCL 11, the Yakabindie homestead block.

24. The applicant touched on this briefly in their extinguishment submissions:

    The Applicants submit that occupation has been established over the whole of each individual 47B Area. However if the Court finds in respect of any individual 47B Area that occupation is established over part but not the whole of that 47B Area, then the Applicants submit that s.47B(2) applies to disregard prior extinguishment over that part of the individual 47B Area in respect of which occupation has been established. On the other hand, what was said in previous cases, and referred to in Banjima FFC at [103], should not be taken as meaning that s.47B(2) does not apply to disregard extinguishment in respect of any part of an individual 47B Area in circumstances where occupation has been established over some but not all of the 47B Area. Such an interpretation would be inconsistent with the beneficial interpretation that should be given to s.47B (as referred to in Banjima FFC [88]-[92]), and with the fact that occupation by Aboriginal persons is unlikely to correspond to the precise cadastral boundaries of the various non-native title interests that have been granted in the Claimed Area and which have resulted in the boundaries of the individual 47B Areas.

25. In my opinion, there is force in the applicant’s submission. The use of the term “area” in s 47B is not suggestive of a meaning which ties the word rigidly to cadastral boundaries. That is re-enforced by the use of the verb “covered”, which suggests there need not be complete overlap between the “area” over which any reservation etc is made and the “area” that is occupied by members of a native title claim group. Clearly there must be some overlap, for the disapplying effect of s 47B(1)(b) to have work to do. However, as the terms of s 47B(1)(b)(ii) itself make clear, the reservation etc may apply to only part of the land. This point was also made by the Full Court in Banjima [2015] FCAFC 84; 231 FCR 456 at [99]:

    And, in the case of a parcel that is affected only in part, as contemplated in s 47B(1)(b)(ii), the exclusion affects only the part meeting the criterion, so that the balance of the land or waters in the area or parcel not within the satisfied criterion, is still subject to the application of s 47B(2).

26. One can readily see how this argument could be applied to a parcel of land under one title which was of a considerable size. One can also readily see how it might apply to land used for pastoral purposes where there has been a claim group member living on a small part of that land. Here, the circumstances are rather different. Two members of the native title claim group – separately, on different parts of the homestead block – have been coexisting. One has continued to do so (Mr Allison) and one (Ms Wonyabong) gave unchallenged evidence she had been recognised as entitled to continue to live there.

27. Nevertheless, to apply s 47B(2), accepting it should be applied beneficially, appears to produce a result that is inconsistent with the Court’s approach in Rubibi (No 7).

28. Since the matter was only briefly addressed by the parties, and not expressly in relation to the Yakabindie homestead block, I propose to give the parties an opportunity to make further submissions on this issue, in accordance with the findings of fact I have made.

    Parts of UCL 4, UCL 5, UCL 6 and UCL 10 (Sir Samuel)

29. As the State submits, these parcels of land are physically separated from UCL 11, being a short distance south of the Yakabindie homestead, and to the west of the Goldfields Highway. The town of Sir Samuel, now gone, was where these parcels of land are found and the State submits, and I accept, that these parcels formed part of the common surrounding the Sir Samuel town site. The Reserve (number 8210) was cancelled in 1991.

30. Aside from the evidence in relation to UCL 11, which the applicant relies on, Mr Muir gave evidence that he visited this land with an anthropologist on 20 May 2015.

31. I do not consider that the evidence about UCL 11 demonstrates any establishment over these other UCL parcels. Mr Muir’s evidence does not advance the applicant’s case. The applicant has not made out occupation of these parcels.

    UCL 8 (Corner Leinster Downs and Booylgoo Spring)

32. This small area of land lies between three pastoral station boundaries (Yakabindie, Booylgoo Spring and Leinster Downs), to the west of Lake Miranda. Lake Miranda is itself south of Yakabindie and Sir Samuel. The only evidence relied upon for this area is the same evidence relied upon for UCL 11 (Yakabindie) and UCL 4, UCL 5, UCL 6 and UCL 10 (the former Sir Samuel townsite). There being no specific evidence at all about occupation of “the area” for the purposes of s 47B (not even as part of a larger area), this claim cannot succeed. Ms Wonyabong gave no specific evidence about this area, despite having lived very close to it for a long period of time. Those witnesses who gave more general evidence about UCL 11 (such as Mr Edwin Beaman) gave no evidence about areas to the west of Yakabindie, but rather about areas to the east, such as Wanjarri Reserve, where Mr Beaman said he went emu egg collecting.

    UCL 240 (Vivien)

33. Vivien is an area very close to the southern boundary of the claim area, south-west of the mining town of Leinster. There is a site known as “Worrunga” which is close to this UCL. “Worrunga” (which is how it is spelt on the applicant’s site map) is also spelt as “Waranga” in the claim group members’ evidence. The Lewis family and the Hogarth family both lived for some considerable period of time at camps at Waranga and Vivien respectively, which I understand the State does not dispute are on UCL 240, or at least include UCL 240.

34. This was Mr Lewis’s evidence:

    I also lived at Waranga camp, near the Vivien mine. In the 1980s, I lived there at an old camp. My parents would camp around through there. I grew two kids up there, Leigth and Tara in the early 1980s, before moving to town. We stopped out there while I was working shearing, until we got housing in town. I was about 23 or 24 years old at the time. There was no water there in those days, so we spent a lot of time carting water. There was no running water, no electricity; it was like the stone age. My dad was there with us, at the time. My mum and dad were old but they went bush all the time. We got lots of bush tucker, goanna and that.

1. Mr Lewis stated that there were other people at another camp close by, but the only person he named was not from this country but from around Mullewa.

2. Mr Lewis gave evidence about taking his son and grandchildren back to the camp in April 2015 and making another trip there in June 2015, but otherwise he gave no evidence of having been back there since he left in the 1980s.

3. Ms Narrier gave some evidence about visiting the Vivien camp in June 2015, and identified it as “the old camp for Mr and Mrs Lewis, Brett’s mum and dad”.

4. Ms Geraldine Hogarth’s family also had a camp at Vivien:

   I might have been about 15 or 16 years old when we were going out with Scotty Lewis around Agnew. That’s when he took me to show where they were going to put the Leinster town. He showed me the two rockholes there on that trip. We went everywhere around Agnew with pop Scotty Lewis. We’d go south coming back towards Leonora. Or we’d take a road through Poison Creek to cut through to get to Darlot.

   Jamu Scotty also showed me Daisy Pool, not far from Vivien. We had a camp at Vivien. That’s where Scotty lived; he made a camp there. I used to go there on holidays and weekends, and my mum stayed there too. It was a big water place at Daisy Pool, and people around there because there was water. He was taking me and other members of my family around places in the country there right up until I was in my twenties.

   When we were camping around in that country at Vivien, like from the 1980s, it was me, mum, my sisters, and the kids – my daughter and Leanne’s children. We’d go there on the weekends, or when I had time off from work. But mum stayed out there a lot, on and off. One time, Aunty Gladys Bingham was with us, and uncle Eddie Redmond would pull in from time to time. Aunty Gay Harris and Aunty Cecily Harris [deceased] they would pull in and visit that camp too.

   We still go out to that Tjiwarl claim area. We go out and check the country. We go to Vivien to check our camp. When we go to funerals in Wiluna, we also go to Pii. We show the kids that place. We want to show them the water place because we want to show them how the water can still be found. We like to show the kids the rockholes and gnamma holes. I last went to Pii in 2014.

5. I have quoted this extract from Ms Hogarth’s evidence at some length because the parties’ submissions did not do it justice. Ms Hogarth’s evidence made it clear that people from several family groups within the claim group used to camp at Vivien. Her evidence does not descend into detail about when people stopped living (whether full-time or from time to time) at the camp, but I infer it was the late 1980s. Ms Hogarth’s evidence was that she and her family still went and “check[ed]” the camp, but she gave no detail about how often this occurred, or when they last visited.

6. There is insufficient contemporary evidence of any member of the claim group “being established” at Vivien, despite its obvious historical importance as a place where several claim group families used to camp and live. The visits which have occurred in more recent times did not have any possessory characteristics to them; rather they were opportunities to show younger people where and how their elders had lived, or to “check” on the place, as Ms Hogarth put it, in the same way she described the responsibility to look after, and keep an eye on, other places in the claim area which were of importance to claim group members. However, discharging those care responsibilities is not the same thing as occupation for the purposes of s 47B. This occupation claim is not made out.

   Road 13

7. This road is in the south-west corner of the claim area. It runs from a place called O’Hara’s Well in a south-westerly direction towards the claim boundary and a place called Willow Well, very close to the southern claim boundary. It appears to run through Depot Springs.

8. I have found at [1192] above that there was no prior interest created in this UCL area, in a way which triggers the operation of s 47B(2), and I have rejected the applicant’s claim under s 47B on that basis. Even if, contrary to my conclusion, the applicant were able to make a claim under s 47B for this parcel of land, I do not consider the applicant has proven that a claim group member or members occupied the land in either 2011 or 2015.

9. It is correct, as the applicant submits, that Mr Lewis gave some evidence about going hunting in July 2015 in this region, which he described as “back between O’Hara’s and Langford’s back where we just came from and further up here, Belleview and Quartz where we’re going”. However, so far as the evidence discloses, I am unable to be satisfied (in contrast to my satisfaction about UCL 245 and UCL 246) that the area he was talking about included the UCL Road 13, nor what use was made of the UCL area in times more approximate to the native title application, aside from one hunting trip.

10. The applicant relies on evidence from Ms Narrier about a place called Gums Well, which is on Road 13, being the location for the story for the white cockatoo. Mr Muir gave similar evidence, although his evidence appeared to place the story further to the west. I do not consider this evidence assists in proving occupation of Road 13: rather, it indicates some knowledge of the area, but no more than that.

    Findings on s 47B for each UCL area

    UCL 239, UCL 245 and UCL 246 (north-west corner)

11. I have found that none of the miscellaneous or exploration licences which cover these areas disapply the terms of s 47B. I have found the applicant has proved occupation of UCL 245 and UCL 246, but not of UCL 239.

    UCL 14 and UCL 15 (Tjiwarl/Logan Spring)

12. I have found that none of the miscellaneous or exploration licences which cover these areas disapply the terms of s 47B. I have found the applicant has not proved occupation of UCL 14 and UCL 15.

    UCL 247 (south of Mail Change Well)

13. I have found that none of the miscellaneous or exploration licences which cover this area disapply the terms of s 47B. I have found the applicant has not proved occupation of UCL 247.

    Part of UCL 11 (Yakabindie)

14. I have found that none of the miscellaneous or exploration licences which cover this area disapply the terms of s 47B. I have allowed the parties a further opportunity for submissions on the application of s 47B(2) to the relevant part of UCL 11.

    Parts of UCL 4, UCL 5, UCL 6 and UCL 10 (Sir Samuel)

15. I have found that none of the miscellaneous or exploration licences which cover these areas disapply the terms of s 47B. I have found the applicant has not proved occupation of parts of UCL 4, UCL 5, UCL 6 and UCL 10.

    UCL 8 (Corner Leinster Downs and Booylgoo Spring)

16. I have found that none of the miscellaneous or exploration licences which cover this area disapply the terms of s 47B. I have found the applicant has not proved occupation of UCL 8.

    UCL 240 (Vivien)

17. I have found that none of the miscellaneous or exploration licences which cover this area disapply the terms of s 47B. I have found the applicant has not proved occupation of UCL 240.

    Road 13

18. I have found that s 47B(2) is not applicable to Road 13. If, contrary to my opinion, s 47B(2) is applicable, then I have found that the applicant has not proved occupation of Road 13.

    OVERALL CONCLUSION AND APPROPRIATE ORDERS

19. The matter raised by the applicant in its addendum to its written submissions on the existence of native title contends that the form of any determination made should take into account the multiple pathways through which Western Desert people may acquire rights and interests in land and waters. As I understand this contention, its effect would be not to limit the native title holding group to those people who are descended from one or more of the named apical ancestors. This is a matter the parties should have some time to consider and see if they can reach agreement, in light of the Court’s reasons for judgment.

20. As I have noted at [1285] above, I consider it appropriate to allow the parties a further opportunity for submissions on the application of s 47B(2) to the Yakabindie homestead block, UCL 11, in light of my findings concerning occupation.

21. There will be directions to the effect that the parties confer and draw up proposed minutes of orders and a determination in accordance with the Court’s reasons.

I certify that the preceding one thousand, three hundred and twelve (1312) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Associate:

Dated:       16 December 2016

ANNEXURE 1: MAP OF CLAIM AREA