Smirke on behalf of the Jurruru People v State of Western Australia (No 2)

[2020] FCA 1728

FEDERAL COURT OF AUSTRALIA

Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728  

File number(s):

WAD 537 of 2018
WAD 538 of 2018
WAD 490 of 2016

Judgment of:

MORTIMER J

Date of judgment:

2 December 2020

Catchwords:

NATIVE TITLE – separate questions – overlapping claims – whether a language group holds native title through succession where no identifiable apical ancestor with rights and interests at sovereignty in the whole of the overlap area – whether certain apical ancestors from a different language group had native title rights and interests in overlap area at sovereignty – whether continuing connection – whether a sub-group of an existing native title holding group has separate native title in the overlap area – competing native title applications each upheld in part – Court not currently in a position to make findings as to boundary between the two native title areas

Legislation:

Native Title Act 1993 (Cth)

Cases cited:

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

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

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

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

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

Dale v Moses [2007] FCAFC 82

Daniel v State of Western Australia [2003] FCA 666

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

De Rose v State of South Australia [2002] FCA 1342

De Rose v State of South Australia [2003] FCAFC 286; 133 FCR 325

Dodd v State of South Australia [2012] FCA 519

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

Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69

Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350

Gomeroi People v Attorney General of New South Wales [2017] FCA 1464

Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801

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

Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland [2004] FCA 298

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

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

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

Narrier v State of Western Australia [2016] FCA 1519

Neowarra v State of Western Australia [2003] FCA 1402

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

Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; 266 ALR 537

Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939

Smirke on behalf of the Jurruru People v State of Western Australia [2020] FCA 1410

Smith on behalf of the Nharnuwangga, Wajarri and Ngarla People v State of Western Australia [2000] FCA 1249; 104 FCR 494

Starkey v State of South Australia [2014] FCA 924; 319 ALR 231

Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; 261 FCR 183

Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551

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

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299

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

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

Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; 235 FCR 464

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

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

Division:

General Division

Registry:

Western Australia

National Practice Area:

Native Title

Number of paragraphs:

1317

Date of last submission/s:

5 May 2020

Date of hearing:

9-12, 15-17 July 2019
5-6 December 2019
25-26 February 2020

Counsel for the applicants in WAD537/2018 and WAD538/2018:

Stephen Wright SC

Solicitor for the applicants in WAD537/2018 and WAD538/2018:

Yamatji Marlpa Aboriginal Corporation

Counsel for the applicant in WAD490/2016:

Tina Jowett

Solicitor for the applicant in WAD490/2016:

Cross Country Native Title Services

Counsel for the State of Western Australia:

Griff Ranson

Table of Corrections
12 January 2021	In paragraph 153, the name “Windiwarri” has been changed to with the name “Jarndunha”.
12 January 2021	In paragraph 934, the word “decent” has been replaced by “descent”.
12 January 2021	In paragraph 1013, the word “Rover” has been replaced by “River”.
12 January 2021	In paragraph 1275, the word “not” has been replaced by “no”.

ORDERS

WAD 537 of 2018

BETWEEN:

IVAN SMIRKE, ALEC ALEXANDER, KELLMAN LIMERICK

Applicant

AND:

STATE OF WESTERN AUSTRALIA & ORS

Respondents

WAD 538 of 2018

BETWEEN:

IVAN SMIRKE, ALEC ALEXANDER, KELLMAN LIMERICK

Applicant

AND:

STATE OF WESTERN AUSTRALIA & ORS

Respondents

WAD 490 of 2016

BETWEEN:

ROY TOMMY, NANCY TOMMY, E.G., MARY MILLS

Applicant

AND:

STATE OF WESTERN AUSTRALIA & ORS

Respondents

order made by:	MORTIMER J
DATE OF ORDER:	2 december 2020

THE COURT ORDERS THAT:

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

But for any question of extinguishment of native title, are native title rights and interests (as defined in s 223 of the Native Title Act) held in the Overlap Area by:

(a)members of the Yinhawangka Gobawarrah native title claim group under traditional laws and customs; and if so

(i)by whom?;

Answer: Yes, but native title is held by members of the Yinhawangka Gobawarrah native title claim group as Yinhawangka people, under Yinhawangka traditional law and custom, and therefore other Yinhawangka people may also be native title holders in the part of the Overlap Area set out in (a)(ii) below. 

(ii)which part or parts of the Overlap Area?; and

Answer: In those parts north of the Ashburton River, and more likely than not in some sites or areas south of the Ashburton River but close to that river, but the Court makes no findings yet about which sites. Nor does the Court make findings yet about who holds native title in the Ashburton River itself, or the site Jabaguru (Jurruru site 12; Yinhawangka Gobawarrah site 29).

(iii)what are those rights and interests?; and/or

Answer: They are the rights and interests set out in the Yinhawangka Part A and B determination: Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801.

(b)members of the Jurruru native title claim groups under traditional laws and customs; and if so:

(i)by whom?;

Answer: Yes, by those people falling within the description of the native title holders in the Jurruru Part A determination: Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939.

(ii)which part or parts of the Overlap Area?; and

Answer: In those parts south of the Ashburton River, aside from any sites or areas south of the Ashburton River but close to that river which are, in accordance with the Court’s reasons held by the Yinhawangka people, although, the Court makes no findings yet about which sites. Nor does the Court make findings yet about who holds native title in the Ashburton River itself, or the site Jabaguru (Jurruru site 12; Yinhawangka Gobawarrah site 29).

(iii)what are those rights and interests?

Answer: They are the rights and interests set out in the Jurruru Part A determination: Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939.

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

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY	[1]
Summary	[3]
A note spellings, words and descriptions used	[15]
BACKGROUND	[18]
The history of native title applications over the overlap area, and the surrounding areas	[18]
THE PARTIES’ CONTENTIONS IN SUMMARY	[44]
Jurruru applicant preservation evidence	[58]
Toby Smirke	[59]
Peggy Smirke	[65]
David Smirke	[70]
Yinhawangka and GMY preservation evidence	[75]
David Cox	[78]
Nancy Tommy	[81]
Other significant Yinhawangka Gobawarrah people	[84]
Mabel Tommy	[84]
Nyimili Tommy	[89]
Jambu Giggles	[95]
Muyit Smith	[97]
The Jurruru claim group and the key Jurruru witnesses for the overlap dispute	[99]
Ivan Smirke	[105]
Marlon Cooke	[109]
Brendon Cook	[113]
The Yinhawangka Gobawarrah claim group and the key Yinhawangka Gobawarrah witnesses for the overlap dispute	[116]
Roy Tommy	[122]
Julie Walker	[125]
Donald Limerick	[130]
Leon Galby	[135]
Kurston Tommy	[140]
The family connections between the Smirke and Tommy families	[145]
The Cooke/Cook family	[149]
The Limerick family	[151]
The Cox family	[153]
The Galby family	[156]
OTHER EVIDENCE	[158]
Documentary evidence	[162]
Relevant claim documents	[162]
Other documentary evidence	[163]
Maps and site lists relied on by both parties	[165]
Aide materials	[167]
Expert reports and other anthropological research documents	[168]
Dr McGrath’s report and research materials	[170]
Dr Palmer’s reports and research materials	[175]
Dr Vachon’s draft report	[181]
Mr Haydock’s 1999 research materials	[184]
Dr Kenny’s draft Jurruru overlap report and field reports	[191]
Dr Sackett’s reports	[200]
Historical anthropological and ethnographic reports	[205]
Alfred Radcliffe-Brown	[206]
Dr Palmer’s 1979 West Angelas Project report	[207]
Professor Tonkinson’s 1985 ethnographic research	[208]
Experts’ conference and joint report	[211]
General approach to the expert material	[212]
SOME GENERAL FINDINGS	[214]
My approach to the witness evidence, the preservation evidence and the lay evidence drawn from earlier sources	[215]
Toby Smirke	[221]
David Cox	[228]
Mabel Tommy	[246]
The younger witnesses	[253]
Ivan Smirke	[254]
Brendan Cook	[259]
Marlon Cooke	[275]
Roy Tommy	[284]
Julie Walker	[323]
The apical ancestors identified in the parties’ applications	[337]
Kantitharra	[338]
Punartu	[346]
Thurantajinha	[351]
Wilga	[358]
Nijawarla	[360]
Gujarda	[364]
The probative value of Mr Haydock’s 1999 materials	[367]
Finding	[379]
The paucity of historical ethnographic material relating to the overlap area	[382]
Daisy Bates	[394]
Alfred Radcliffe-Brown	[398]
Norman Tindale	[403]
Robert Tonkinson	[409]
Finding	[415]
The significance of the 2001 and 2010 boundary agreements	[416]
The 2001 Jurruru and Innawonga agreement	[418]
The different iterations of the GMY claim area	[439]
The 2010 GMY and Innawonga intra-indigenous agreement	[458]
Findings	[468]
Jabaguru	[473]
The late filing of the Jurruru #2 claim	[479]
Other evidence that Jabaguru is Jurruru country	[487]
Evidence that Jabaguru is shared country	[495]
Finding	[515]
The debates about the relevance of birth (and burial) on country	[528]
The Jurruru evidence	[529]
The Yinhawangka Gobawarrah evidence	[533]
The expert opinions	[541]
The parties’ submissions	[554]
Did the Jurruru object to Mabel Tommy’s burial at Jabaguru in 2001?	[559]
Findings	[576]
One normative system	[588]
Lay evidence	[589]
Expert evidence	[598]
Findings	[611]
The Lake Torrens overlap proceeding and the relevance of the surrounding consent determinations	[618]
The Yinhawangka Part A and Part B determination (Jones)	[627]
The Jurruru Part A determination (Smirke)	[632]
Findings	[635]
SUCCESSION	[637]
Lay evidence	[650]
Expert evidence	[678]
Dr McGrath	[680]
Dr Palmer	[742]
Observations	[760]
Other experts	[781]
Dr Sackett	[781]
Dr Kenny	[788]
Findings	[790]
IS THE ASHBURTON RIVER A BOUNDARY?	[821]
Jurruru submissions	[824]
Yinhawangka Gobawarrah submissions	[838]
The State’s submissions	[842]
Findings	[849]
THE OVERLAP AREA AT SOVEREIGNTY	[854]
The landholding system at sovereignty	[856]
Methods of identifying estate groups at sovereignty	[873]
Dr McGrath	[875]
Dr Palmer	[908]
The parties’ submissions	[913]
The evidence about the estates of the apical ancestors	[922]
The Jurruru apical ancestors	[925]
Kantitharra	[925]
Punartu	[935]
The Yinhawangka Gobawarrah apical ancestors	[938]
Thurantajinha	[939]
Wilga	[952]
Nijawarla	[962]
Gujarda	[977]
Findings on the overlap area at sovereignty	[994]
General findings	[994]
Was the overlap area at sovereignty affiliated with Yinhawangka or Jurruru identifying estate groups?	[1009]
What parts (if any) of the overlap area at sovereignty fell within the respective estates of the Yinhawangka Gobawarrah apical ancestors?	[1023]
Thurantajinha	[1024]
Wilga	[1027]
Nijawarla	[1028]
Gujarda	[1044]
THE OVERLAP AREA POST-SOVEREIGNTY	[1049]
Yinhawangka Gobawarrah evidence about continuing connection to the overlap area post-sovereignty	[1049]
The area north of the Ashburton River	[1052]
Six Mile Creek (Bijiji)	[1052]
Seven Mile Creek	[1059]
Marni (YG site 40)	[1063]
Wilugari Claypan (YG site 72)	[1066]
Bugurda Bugurda Range (YG site 12)	[1067]
Wilugari Hill (YG site 71)	[1068]
Yalayari (YG site 76)	[1069]
Thurriri (Turee Creek)	[1070]
Sites on or near the Ashburton River	[1082]
Dreaming stories	[1082]
Wanyanu (YG site 68)	[1084]
Pilingurra claypan (YG site 63)	[1085]
Jabaguru (YG site 29)	[1086]
Bilgi (YG site 8)	[1087]
Mindurl (YG site 50)	[1089]
Marlanya (YG site 29)	[1090]
Dhardhudhu (YG site 17)	[1091]
Wirdharadji (YG site 73)	[1092]
Binbidnga (also spelt Binbirrnta) (YG site 11)	[1095]
Gurriga (YG site 26)	[1101]
The area south of the Ashburton River	[1107]
Site along Fords Creek	[1109]
Secret Creek (Wurndagalpa (YG site 74))	[1110]
Dardhudhu flat (YG site 18)	[1111]
Gadamulha (also spelt Katamulha) (YG site 19)	[1112]
Other sites mentioned by Mabel Tommy	[1113]
Jurruru evidence about continuing connection to the overlap area post-sovereignty	[1114]
The area north of the Ashburton River	[1115]
Wanuwanu (Jurruru site 26)	[1115]
Charcoal Well (Jurruru site 46)	[1116]
Ngulunganga (Mt Elephant) (Jurruru site 47)	[1120]
Sites on or near the Ashburton River	[1121]
Binbin Pool (Jurruru site 3)	[1121]
Jabibuga (Jurruru sites 43, 13)	[1123]
Wirdaraji (Ten Mile Pool) (Jurruru site 29)	[1126]
Baringgara (Jurruru site 2)	[1128]
Garamula (Jurruru site 6)	[1129]
Garilyi (Jurruru site 7)	[1130]
Thuriri (Jurruru site 24)	[1131]
Jabaguru (Jurruru site 12)	[1133]
Mininer Outcamp (Jurruru site 21)	[1134]
Gumbariri (Jurruru site 9)	[1135]
Dalarang (Jurruru site 5)	[1137]
Other pools along the Ashburton River	[1142]
Sites in the Jurruru Part A determination area	[1143]
The area south of the Ashburton River	[1144]
Wandarry Creek	[1144]
Marduwara (Jurruru site 17)	[1147]
Gubara (Jurruru site 8)	[1149]
Jijili (Jurruru site 54)	[1152]
Top Camp (Jurruru site 16)	[1153]
Mardin (Jurruru site 16)	[1154]
Gunari (Jurruru site 10)	[1155]
Marrabay (Kenneth Ranges) (Jurruru site 19)	[1156]
Sites in the Jurruru Part A determination area	[1161]
Findings on the overlap area post-sovereignty	[1162]
CAN YINHAWANGKA GOBAWARRAH HOLD NATIVE TITLE AS A SUB-GROUP OF THE YINHAWANGKA PEOPLE?	[1192]
Some relevant authorities	[1208]
De Rose (No 2)	[1209]
Daniel/Moses	[1218]
Ward	[1221]
Starkey	[1232]
Lay evidence	[1234]
Mabel Tommy	[1234]
Yinhawangka Gobawarrah witnesses	[1240]
Nancy Tommy	[1240]
Roy Tommy	[1245]
Other Yinhawangka Gobawarrah witnesses	[1252]
David Cox	[1255]
Jurruru witnesses	[1257]
Ivan Smirke	[1257]
Marlon Cooke	[1261]
Brendon Cooke	[1263]
Expert evidence	[1264]
Joint experts’ report	[1264]
Dr McGrath	[1266]
Dr Palmer	[1272]
Dr Sackett	[1280]
Findings	[1289]
ALTERNATIVELY, DO THE YINHAWANGKA HOLD NATIVE TITLE?	[1310]
CONCLUDING REMARKS	[1314]

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION AND SUMMARY

1. Today the Court has given answers to separate questions formulated by Barker J in February 2018. This is the culmination of a long and heavily contested dispute between two groups of people who have different language identities, but essentially observe a similar system of traditional law and custom and who, in fact, have been bound together by marriage and other close family relationships. At issue is a more-or-less triangular area of 3423 sq km in the Pilbara, sitting between land and waters held by the Jurruru People (to the west), the Yinhawangka People (to the east), and the Nharnuwangga People (to the south), through the middle of which runs the Ashburton River. The Jurruru People claim it is their country under traditional law and custom. On the other side of the dispute is a group of Yinhawangka people, who call themselves the Yinhawangka Gobawarrah, who have long asserted they hold a particular, distinct set of rights over this area to the broader Yinhawangka group.

2. The separate questions are:

   But for any question of extinguishment of native title, are native title rights and interests (as defined in s 223 of the Native Title Act) held in the Overlap Area by:

   (a)members of the Yinhawangka Gobawarrah native title claim group under traditional laws and customs; and if so

   (i)by whom?;

   (ii)which part or parts of the Overlap Area?; and

   (iii)what are those rights and interests?; and/or

   (b)members of the Jurruru native title claim groups under traditional laws and customs; and if so:

   (i)by whom?;

   (ii)which part or parts of the Overlap Area?; and

   (iii)what are those rights and interests?

   Summary

3. I have found that the Jurruru applicant has proven its case in relation to the area south of the Ashburton River, subject to the findings I summarise in the next two paragraphs. I have found the Yinhawangka Gobawarrah applicant has proven that the area north of the Ashburton River is Yinhawangka country and not Jurruru country. That finding is also subject to the findings I summarise in the next two paragraphs.

1. The Court has not accepted the Yinhawangka Gobawarrah applicant’s argument that the claim group as defined in the Yinhawangka Gobawarrah application is a native title holding group. It has accepted the contentions of the State and the Jurruru applicant that the group is not a “traditional” one; it is not a community which observes and adheres to a distinct system of traditional law and custom from other Yinhawangka People. Nor has it been proven that there is anything in traditional Yinhawangka law and custom which provides for the separate and distinct holding of native title by a sub-set or sub-group of Yinhawangka People who are descended from certain apical ancestors. Rather, the evidence establishes that Yinhawangka traditional law and custom allows for intramural allocation of responsibilities and interests in particular areas of country, based on a number of factors, including descent from certain ancestors, but also other matters such as birth and death on country. The Court has also found that Mabel Tommy, the person whose knowledge, accounts and narratives are the principal source of the arguments made on behalf of the Yinhawangka Gobawarrah applicant, identified clearly as a Yinhawangka person, and spoke of and described traditional law and custom about rights in land, and about what connected her to the land of her ancestors, which arose under the normative system of the Yinhawangka People. The same finding is made about Jambu Giggles and Muyit Smith.

2. The Court has accepted the Jurruru arguments about succession in relation to the southern part of the overlap area, and has found that the only Jurruru apical ancestor with descendants who identify as Jurruru, Kantitharra, is likely to have had some pre-sovereignty rights and interests in a small part of the western part of the overlap area, but not in the south, so that he and his descendants have succeeded to the land of other Jurruru people who did not, after sovereignty, survive as estate groups who could continue to maintain a connection to their country.

3. The Yinhawangka Gobawarrah applicant has succeeded in proving that two of their four nominated apical ancestors, Thurantajinha and Nijawarla, had rights and interests in the areas north of the Ashburton River in the overlap area. In addition, the Yinhawangka Gobawarrah applicant has succeeded in proving – principally but not exclusively through the accounts of Mabel Tommy, Jambu Giggles and Muyit Smith – that it is more likely than not that all of the area north of the Ashburton River was, at sovereignty, Yinhawangka country. Although it was a difficult issue to resolve, the Court accepted this contention over the evidence of Toby Smirke, being the principal witness for the Jurruru applicant. In relation to the northern area, it found there was insufficient evidence of connection through traditional law and custom for the Jurruru case to be proven; rather there was evidence of familiarity and presence by Toby Smirke and his family when they were working, which led to an intimate and deep knowledge of the country, but did not demonstrate that Jurruru traditional law and custom connected the Smirke family with this area; nor connected any other Jurruru people whose families have not survived.

4. The Court has found that the Ashburton River does not represent a hard boundary between the two native title holding groups, but does provide a geographical indicator of where one group’s country moves into the country of another group. It has found that the area of the river itself, and sites such as Jabaguru, are most likely to have been shared country. It is more likely than not that there are some sites south of the river, but close to it, which are held under Yinhawangka traditional law and custom.

5. The Court has no made specific findings about what these sites are, nor about how a boundary is to be identified for the purposes of making two determinations of native title in the overlap area, which is what the Court has found should occur. The Court expects the parties to negotiate and reach agreement on how this boundary is to be drawn. Failing such agreement after a reasonable period of time, there will need to be a further trial with further evidence and the Court will need to determine and draw the boundary for the parties. That is an outcome which should be avoided if at all practicable.

6. The parties did not spend a lot of time in evidence or submissions on the content of the native title rights and interests. On the basis of the evidence as it stands, and giving primary weight to the fact that there are existing determinations for the Jurruru People and for the Yinhawangka People, the Court finds that the content of the rights should be determined to be the same as the rights set out in the respective determinations. Whether these rights should be determined to be exclusive or non-exclusive was not a matter addressed in any detail by the evidence and submissions. Like the other outstanding matters, the Court expects the parties should be able to negotiate an outcome on this issue.

7. This dispute has existed now for decades, and sadly as in many other longstanding native title disputes, the generation of people with the closest, most direct and fulsome knowledge of facts most material to resolving the dispute are no longer alive, or are no longer well enough, to assist the Court. In this case, preservation evidence played a critical role, but some of the most important evidence was not fully tested. The records made in 1999 with the assistance of Mr Phillip Haydock have also been critical; yet the elders who spoke to Mr Haydock were no longer available to give evidence and so, again, their evidence could not be tested. These forensic difficulties do not absolve the Court from making findings, but they do make the task more difficult.

8. The parties, their experts and lay witnesses, and their legal representatives, also faced a difficult task. Although the Court makes findings accepting some evidence, and argument, and rejecting others, I accept that all concerned have done their best to assist the Court, for which the Court is grateful.

9. The Court also expresses its gratitude to Transcripts Australia for the care taken in the exercise of preparing the transcript of the on-country evidence, the expert evidence, and the parties’ closing submissions.

10. In Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [13] I said:

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

11. Those observations are equally apposite in this proceeding.

    A note spellings, words and descriptions used

12. In these reasons, I have adopted the practice of referring to all witnesses by their full name, although from time to time depending on context I will also refer to them by “Mr” and “Mrs” or “Miss” and their surnames. For people who are referred to in the evidence but were not witnesses, especially people from previous generations, I have generally used the person’s first and second name on each occasion. Where a person had both an Aboriginal and non-Aboriginal name, I have used the names as they appeared most frequently in the submissions and the evidence, particularly in those parties’ submissions which relied on that witness’ evidence. For example, the original members of the applicant in the Gobawarrah Minduarra Yinhawangka claim (WAD6173/98), and important persons to this proceeding, were Mabel Patterson (formerly Mabel Tommy) (Jirridinku), Limpet Giggles (Jambu), and Amy Smith (Muyit). I use the names Mabel Tommy, Jambu Giggles and Muyit Smith as this is how the parties, particularly the Yinhawangka Gobawarrah applicant, most often referred to them. With the apical ancestors, I have adopted a single name as they have customarily been identified. Further, one of the Yinhawangka Gobawarrah named applicants sadly passed away after judgment was reserved in this proceeding, and at the request of the Yinhawanga Gobawarrah applicant, I have referred to him as Mr E.G. in these reasons.

13. In terms of the spelling of other native title applications in the region, I have taken the spellings from the map that was provided to the Court and tendered by the parties. The spellings of the names in some of the applications varied from time to time and I have attempted to use the spellings as they appeared on the maps in whichever iteration of the claim history I am discussing.

14. Anthropologists and other experts are referred to by the title “Dr” where they are known to have been conferred with a PhD, regardless of whether it was conferred before or after creating the materials that are in evidence (eg Dr Pamela McGrath’s PhD was conferred after her 2001 field trip with members of the Jurruru claim group).

    BACKGROUND

    The history of native title applications over the overlap area, and the surrounding areas

15. In this section of my reasons I explain the three current native title applications in the overlap area, the applications which preceded them, and the native title determinations in the areas surrounding the overlap area. This context is important in understanding how the respective claims take the form they now do.

16. Two of the applications in the overlap area have been lodged by the Jurruru claim group, being:

    (a)the Jurruru #1 application (WAD537/2018, formerly WAD6007/2000), which was filed on 24 July 2000; and

    (b)the Jurruru #2 application (WAD538/2018, formerly WAD327/2012), which was filed on 22 November 2012 and seeks a native title determination over an area to the east of the Jurruru #1 application area, including a site called Jabaguru, which featured prominently in the evidence.

17. I refer to these as the “Jurruru claims” in these reasons.

18. The third application in the overlap area has been lodged by the Yinhawangka Gobawarrah claim group. The application was filed on 17 October 2016 (WAD490/2016). I refer to it as the “Yinhawangka Gobawarrah claim” in these reasons.

19. The following map depicts the boundaries of the Jurruru claims and the Yinhawangka Gobawarrah claim, and the overlap between those claims. Aside from a relatively small portion of land in the very north of the Yinhawangka Gobawarrah claim area, the overlap between the Yinhawangka Gobawarrah claim and the two Jurruru claims is complete. I shall refer to this area as the “overlap area” in these reasons. As I understand the parties’ cases, the claim of the Yinhawangka Gobawarrah People to the very small section in the north of the Yinhawangka Gobawarrah claim area stands or falls with the outcome of the separate question hearing. No separate evidence was advanced about this area. The map also depicts the native title determinations in the areas surrounding the Jurruru and Yinhawangka Gobawarrah claims.

20. The map shows that the following native title determinations lie adjacent to the overlap area:

    (a)the Jurruru People Part A determination, which lies to the west of the overlap area, being that part of the Jurruru #1 claim which was determined by consent in Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939. The remaining “Part B” of the Jurruru #1 claim falls within the overlap area in this proceeding;

    (b)the Yinhawangka People Part A and B determination, which lies to the north and east of the overlap area, being an area which was determined by consent in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801;

    (c)the Nharnuwangga determination, which lies to the south-east of the overlap area and was determined by consent to be country over which the Nharnuwangga, Wajarri and Ngarlawangga peoples are the native title holders: Smith on behalf of the Nharnuwangga, Wajarri and Ngarla People v State of Western Australia [2000] FCA 1249; 104 FCR 494; and

    (d)the Puutu Kunti Kurrama People and Pinikura People #1 and #2 determination, which lies to the north-west of the top corner of the overlap area and was determined by consent in Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2 [2015] FCA 940.

21. The historical native title claims related to the overlap area are described in the parties’ further amended statement of agreed facts and written submissions, and are largely uncontested.

22. The first relevant application was a combined native title application lodged with the National Native Title Tribunal on 4 June 1996 on behalf of the Innawonga, Banjima and Nyiyaparli peoples. I refer to it as the “IBN claim” in these reasons. The land and waters forming the subject-matter of the IBN claim ran from Cheela Plains station in the west, through Rocklea station, parts of Turee Creek station and across to Juna Downs station in the east, taking in part of the Hamersley Range. Broadly, it did not come south into Mininer station, nor into the overlap area. However, it included, and extended further east of, the area which would become the subject of the subsequent Yinhawangka Part A claim (which I describe at [37] below).

23. On 25 June 1997, the Gobawarrah Minduarra Yinhawangka application (WAD6173/98) was lodged with the NNTT. I refer to it in these reasons as the “GMY claim”. The individuals who constituted the applicant in the GMY claim are the family members of the present claimants in the Yinhawangka Gobawarrah claim. Their accounts of their traditional country are central to the Yinhawangka Gobawarrah claim.

24. The original GMY applicant comprised Jambu Giggles, Mabel Tommy and Muyit Smith. The GMY claim group consisted of descendants of two married Yinhawangka ancestors, Thurantajinha and Wilga. Thurantajinha and Wilga constitute one of the apical ancestor groups in the Yinhawangka Gobawarrah claim.

25. The initial GMY Form 1 was prepared without legal assistance and included an approximation of the claim boundaries. The GMY claim area map was finalised in December 1997. Amended versions of the Form 1 were filed in 1997 and 1999, but the members of the applicant remained the same.

26. The GMY applicant subsequently obtained legal representation from the Pilbara Aboriginal Land Council, and later from the Yamatji Marlpa Barna Barba Maaja Aboriginal Corporation (which became the Yamatji Marlpa Aboriginal Corporation).

27. The GMY claim sat to the south of the IBN claim, taking in all of the overlap area, which included part of Ashburton Downs station, then running east over Mininer station, to the boundary with the (then) Ngarlawangga People’s claim to the east, and bordering the Nganawongka, Wadjari and Ngarla claim to the south.

28. The Innawonga application (WAD6285/1998) was lodged with the NNTT on 29 September 1998, and an amended Form 1 was filed on 16 June 1999. I refer to it in these reasons as the “Innawonga claim”. The applicant comprised Chubby Jones, Nicholas Cooke (the father of Brendon Cook, one of the Yinhawangka witnesses for the Jurruru applicant in this proceeding), Doris Limerick (the mother of Marlon Cooke, another of the Yinhawangka witnesses for the Jurruru applicants in this proceeding), Tadjee Limerick, Stuart Injie and Lola Young.

29. The individuals comprising the claim group in the Innawonga claim were descended from the Yinhawangka ancestors Minatangunha and/or Jardunha, being different ancestors to the apical ancestors referred to in the GMY claim.

30. The Innawonga claim covered land and waters entirely within the GMY claim, and was to the south of the IBN claim, largely over Mininer station, part of Ashburton Downs station and part of Turee Creek station. The Innawonga claim also covered part of the overlap area in this proceeding.

31. To recap, the Jurruru #1 application was filed in July 2000, and in its eastern part overlapped with the GMY claim, and in its north-eastern part overlapped with the Innawonga claim.

32. On 13 March 2001, an agreement was reached between the Innawonga and the Jurruru #1 applicants to amend the boundaries of both claims so as to remove the overlap between them. Those making the agreement for the Innawonga applicant were people who would later form part of the Yinhawangka claim group. As a result of this amendment, the Innawonga claim no longer covered any part of the overlap area. The 2001 boundary agreement is of some considerable relevance in these proceedings, and I deal with the evidence about it in more detail later in these reasons.

33. In 2010, the applicants in the GMY and Innawonga claims entered into an intra-Indigenous agreement for the purpose of combining the claims. This agreement was in evidence. The new combined claim did not include the overlap area, but it was this agreement which was implemented in the new Yinhawangka Part B application filed in 2010. By this time, the Banjima People also had their own separate native title application to the north-east of the overlap area, much of it covering Juna Downs station. In that sense, the IBN claimants had split into the Banjima People’s application, and the Yinhawangka People’s applications.

34. After the 2010 agreement, two Yinhawangka applications were filed:

    (a)the Yinhawangka Part B application (WAD216/2010), filed on 12 August 2010, which covered the area of the overlap between the Innawonga and GMY claims, and an eastern portion of the GMY claim which did not overlap with the Innawonga claim (I refer to it in these reasons as the “Yinhawangka Part B claim”); and

    (b)the Yinhawangka Part A application (WAD340/2010), filed on 11 November 2010, which covered an area to the north of the Yinhawangka Part B claim which was previously within the boundaries of the IBN claim (I refer to it in these reasons as the “Yinhawangka Part A claim”).

35. The GMY claim was then amended on 12 August 2010, pursuant to the agreement reached, to withdraw the claim over an area which was the subject of the Yinhawangka Part B claim. This meant the GMY claim then covered only the area which is now the overlap area in this proceeding. In September 2010, the Innawonga claim was combined with the Yinhawangka Part B claim, and the latter claim became the lead application.

36. The GMY claim was struck out on 30 June 2016, for reasons described at [29] of the parties’ amended agreed statement of facts:

    On 30 June 2016 the GMY claim was struck out on the grounds that the claim was not authorised under s 84C of the [Native Title Act] and the GMY applicant had not complied with the orders in relation to the bringing of an application to amend the claim.

37. The Yinhawangka Gobawarrah claim was filed less than four months later, in October 2016. As I note above, it followed the boundary of the former GMY claim, and was brought on behalf of substantively the same claim group members.

1. The Yinhawangka Part A and Part B claims were determined in Jones. The Yinhawangka Part A and B determination referred to three groups of apical ancestors, who were not related to each other. The three groups of apical ancestors were:

   (a)Jardunha;

   (b)Minatangunha; and

   (c)Thurantajinha and Wilga.

2. Thurantajinha and Wilga are two of the apical ancestors in the Yinhawangka Gobawarrah claim, as they were on the GMY claim. There is no dispute that most if not all members of the Yinhawangka Gobawarrah claim group (and certainly those who were the key witnesses) are also members of the Yinhawangka native title holding group, and indeed Roy Tommy has been an active member of the Yinhawangka prescribed body corporate.

3. It is also common ground that the Yinhawangka families who are descended from the ancestors Minatangunha and Jardunha, the other two apical ancestor groups in the Yinhawangka Part A and B determination, do not claim rights in the overlap area and are not involved in the Yinhawangka Gobawarrah claim.

   THE PARTIES’ CONTENTIONS IN SUMMARY

4. In the parties’ statement of facts and issues it was an agreed matter that significant European presence or settlement in the overlap area did not occur until approximately 1870 to 1880, despite the agreed date for British sovereignty in Western Australia being 1829. There were also statements to the effect that it was agreed there is a “Yinhawangka society” and a “Jurruru society”, each of which has existed since prior to 1829 and has continued to acknowledge and observe their respective traditional laws and customs.

5. In closing submissions, counsel framed this issue slightly differently. Both accepted that there was essentially one system of traditional law and custom across the Pilbara, and aspects such as men’s law were shared across groups. The following facts were agreed in the proceeding:

   There are different kinds of Law, including Yindjibarndi (Bidara) Law, Desert Law, Banjima Law and Yinhawangka Law. Some Yinhawangka people go through one kind of Law, some go through another kind. But it’s all part of the same big Men’s Law for the country. The Lawmen mix and help each other in the meetings.

   Law is shared in the Pilbara but some of the practices are different from place to place.

6. It was also accepted (including by the State) that there was one landholding system applied across the Pilbara region, said to be a system “characterised by descent and affiliation with a particular corporate entity (a local descent group) in relation to a particular tract of country within the broader group territory”: see AB on behalf of the Ngarla People v State of Western Australia (No 4) [2012] FCA 1268; 300 ALR 193 at [141].

7. Notwithstanding this, only the Yinhawangka Gobawarrah applicant rely upon a descent-based pathway of acquiring rights and interests in the overlap area. The Jurruru applicant relied on a “succession” concept for the overlap area, which had a descent aspect, and which I deal with in detail later in these reasons. This, the Jurruru applicant contends, is the same basis as native title was recognised in Smirke. For present purposes, the point is that, despite the way the agreed issues were expressed, as I understand it each of the Jurruru and the Yinhawangka Gobawarrah applicants rely on the same normative system, although they have separate, and distinct, native title determinations in their favour, the explanation for this appearing to be that the normative system recognises (through a post-sovereignty adaptation) native title being held at a language identity level. What they appear to contend is that there are two competing arguments about how this system applies to rights and interests in the overlap area, and to the maintenance of connection to the land and waters in the overlap area.

8. The Jurruru applicant’s primary case is that, at sovereignty, the overlap area contained “estate groups” associated with the Jurruru language. These estate groups all observed the same system of traditional law and custom. It contends that, post-sovereignty, these estate groups disappeared through “forced demographic change” and through traditional, albeit adapted, “processes of succession”, native title rights and interests are now held over the entirety of the overlap area by a “single communal language group”, being the Jurruru People. This, it contends, was also the case for the area now covered by the Jurruru Part A determination. In oral closing submissions, this was referred to by the State and adopted by the Jurruru applicant as the “devolution” from individual estate groups to the communal language group.

9. In closing submissions, and I infer reflecting at least one impression from the evidence as adduced, the Jurruru applicant accepted it was possible that, at sovereignty, there may have been estate groups in the overlap area north of the Ashburton River who identified as a “mix of both” Jurruru and Yinhawangka. The Jurruru applicant submitted that despite this feature the overlap area in its entirety has come to be regarded as Jurruru country through these processes of “succession”. This appears to reflect the Jurruru applicant’s “alternative” submission put at [22] of the joint statement of facts and issues filed before the hearing, to the effect that if (contrary to the Jurruru primary case) the overlap area (or part of it) belonged to members of both Yinhawangka and Jurruru societies at sovereignty (ie it was shared country) and some Yinhawangka people have maintained a connection to it, then any such Yinhawangka people have only “non-exclusive rights which may be exercised for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes)”. In other words, the Jurruru applicant did not concede that any possessory or ownership rights could be held by Yinhawangka people in the overlap area.

10. The Jurruru applicant made three principal submissions in relation to the Yinhawangka Gobawarrah claim:

    (a)the Yinhawangka Gobawarrah applicant has failed to prove that the four apical ancestors held inheritable rights and interests in estates that encompassed the whole of the overlap area;

    (b)the Yinhawangka Gobawarrah are not a “traditional group” capable of holding a separate native title to the overlap area under the traditional laws and customs of the Yinhawangka society, because Yinhawangka society only recognises a single communal native title over all of Yinhawangka country; and

    (c)the Yinhawangka Gobawarrah claim group do not have a connection to the overlap area under Yinhawangka traditional laws and customs because Yinhawangka society does not recognise their rights and interests in that area.

11. The Yinhawangka Gobawarrah applicant submits that the Yinhawangka Gobawarrah claim group hold native title in the whole of the overlap area under Yinhawangka traditional laws and customs (that is, by descent from apical ancestors who held rights in that area at effective sovereignty), but as a separate sub-group of Yinhawangka society. The Yinhawangka Gobawarrah applicant submits the content of those rights and interests are the same as in the adjoining Yinhawangka consent determination of Jones. It contends that such an approach – a subset of a larger native title holding group being recognised as holding native title in a separate area of land and waters – is what occurred in De Rose v South Australia (No 2) [2005] FCAFC 110; 145 FCR 290, and native title can be determined in the same way in relation to the overlap area.

12. The Yinhawangka Gobawarrah applicant submits that, at sovereignty, the overlap area fell within the respective estate areas of four Yinhawangka Gobawarrah apical ancestors, being Nijawarla, Gujarda, Thurantajinha and Wilga. There is a dispute between the parties whether Gujarda is a daughter of Thurantajinha or an apical ancestor in her own right. The Yinhawangka Gobawarrah applicant acknowledges that “the Yinhawangka local estate groups have substantially changed since sovereignty”, but submits that the Yinhawangka Gobawarrah claim group have inherited those estates as descendants of these ancestors and have continued to observe traditional Yinhawangka laws and customs across the overlap area.

13. In the alternative, the Yinhawangka Gobawarrah applicant submitted that whole of the overlap area is shared country between the Yinhawangka People and the Jurruru People. The Jurruru applicant did not agree with this contention, going only as far as the acceptance I have recorded at [49] above.

14. The State generally supported the position of the Jurruru applicant. It accepted the existence of native title in the overlap area and contended that there are greater difficulties with the Yinhawangka Gobawarrah applicant’s case.

15. The State submitted that, on the evidence, it seems “tolerably clear” that the estate groups located north of the Ashburton River in the overlap area contained both Jurruru and Yinhawangka people at sovereignty. However, the State says that the Yinhawangka Gobawarrah applicant’s account of what occurred post-sovereignty is an “anomaly” within the Pilbara region, while the Jurruru applicant’s account is “familiar and orthodox” and consistent with other native title determinations in the wider Pilbara region, including the adjacent Yinhawangka and Jurruru consent determinations.

16. The State further submitted that the Yinhawangka Gobawarrah applicant did not establish that the Yinhawangka Gobawarrah are a group capable of holding native title rights and interests under the traditional laws and customs of the Yinhawangka society, separately to the Yinhawangka People.

17. In the following sections, I describe some of the older people from whom preservation evidence had been taken in the past, as well as describing some of the other key older people relevant to determining the separate questions. I also describe the respective claim groups and the lay witnesses who gave oral evidence (not including preservation evidence, to which I refer separately). Much of the factual material in this section is taken from the agreed facts.

    Jurruru applicant preservation evidence

18. The Jurruru applicant relied on witness statements from Toby Smirke dated 27 May 2013, Peggy Smirke dated 5 June 2013 and David Smirke dated 28 May 2013, all filed in the Jurruru proceedings. These witnesses gave evidence at the preservation of evidence hearing before Barker J on 23 July 2013. The Jurruru applicant relied on the transcripts and the Court’s video recording of the preservation evidence hearing.

    Toby Smirke

19. Toby Smirke was born in 1944 on Jurruru country. He is a senior elder of the Jurruru People and is recognised under traditional Jurruru laws as being responsible for, and speaking for, Jurruru country. He has spent most of his life living or working in Jurruru country.

20. Mr Smirke’s bush name is “Gidja”, which is a Guruma word and was given to him by his mother. His skin is Milanga. His biological father was a white man, but he was reared up by his Aboriginal father, Jimmy Smirke, whom he treated as his “real” father. Jimmy Smirke treated Toby Smirke as a son and they were treated by all Jurruru people in that way, as other evidence reveals. He has two brothers (David Smirke and one who has passed away) and five sisters (Peggy Smirke, Linda Smirke, Lorraine Smirke and two who have passed away). He has four children from his first marriage, to Nancy Tommy: Ivan Smirke, Alloway Smirke, Nathaniel Smirke and Kieran Smirke.

21. When Mr Smirke was young, his parents worked on Ashburton Downs station. He would travel to Kooline station for important law business meetings. In holidays he would travel around Jurruru country. He did not go to school, although his (white) biological father wanted him to, because his mother was afraid he would be taken away to Perth. When he was older, Mr Smirke first worked on Ashburton Downs station, Mt Vernon station and Wyloo station, mostly mustering and building and fixing buildings and equipment. He started work when he was about 12 years old.

22. In relation to his marriage to Nancy Tommy, Mr Smirke’s evidence was:

    I know all the skin rules about traditional marriage. I learnt all those rules from the old people like old Kaoline Mick and my father and mother. They told me, ‘You don’t go with that wrong way woman’. That ‘right way’ stuff does not happen much anymore – it does not really fit with modern ways. But most people still know those rules and talk about them. And we pass that knowledge on to our children and grandchildren.

    …

    When we got married it was traditional Aboriginal way for Jurruru and Innawonga. This means that Nancy’s family and my family got together. People talked to us about how we were ‘straight’ for each other and not ‘wrong way’, and how that was a good thing.

23. In relation to his Jurruru language and identity, his evidence was:

    The Jurruru language is the language of the Jurruru people and the Jurruru country. We usually use ‘word’ instead of ‘language’. It means the same thing but ‘word’ is Aboriginal English. I can understand Jurruru word but I can’t speak it very well. ...

    Speaking language is very important to me, it is part of who I am. I wish I had learnt to speak Jurruru word.

24. Mr Smirke gave evidence that, when he was young, he “knew the proper old people who told [him] a lot about country”. His father and Kooline Mick, a Yinhawangka man who learned about Jurruru country from the old Jurruru people, taught him where Jurruru country ended and where other people’s country started. He learned about Jurruru culture, law and history from the old people who were living on Ashburton Downs station when he was growing up, even if they were not themselves Jurruru, because “they all knew about other groups’ law as well as their own”.

    Peggy Smirke

25. As I have noted, Peggy Smirke is Toby Smirke’s sister. She does not know her date of birth but estimated in 2013 that she was around 60 years old. She was born on Jurruru country. Her father was Jimmy Smirke.

26. Mrs Smirke’s written evidence about her childhood was (at [20]-[23]):

    My parents were real ‘bush people’. They lived in the bush most of their lives. They did not like town life. They spent most of their lives working on Jurruru country, on Ashburton Downs Station and Kooline Station.

    I remember when my father worked on Ashburton Downs Station as a dogger and station worker. We were always travelling around with him, we did not live at the station much. Instead, we stayed out in the bush and camped and ate a lot of bush food. We would often eat emu or kangaroo.

    When we were at the station we stayed at the black fella’s camp down by the Ashburton River. There were many old people living with us there. I remember Junki Smith (a Ngarla law man), and Mabel Tommy (Julie Walker’s mum – I can’t remember which group she belonged to), and Buddy Smith (another Ngarla law man and brother to Junki). (‘Ngarla’ is the name I use for the Ngarlawangga who are Jurruu’s neighbours. All Jurruru people call them this.)

    Then welfare came and took us. I don’t know how old I was but I think I was only just a teenager. We were taken away because they said that we had been living in the bush too long. The welfare people said that we had to go to school.

27. Mrs Smirke left school when she was around 15 years old and went to work on Kooline station. Later she was “moved off the stations when equal pay came in”.

28. Mrs Smirke has three children: Richard Cox, Sherlene Cox and Stella Cox. They follow their father as Yinhawangka, which is “the old way”, but Mrs Smirke’s evidence is that they could follow her as Jurruru if they wanted to.

29. Growing up, she was raised by her parents and other old people, who told her about Jurruru country and being Jurruru. Mostly she learnt from her parents as she went with them all over the stations in Jurruru country. Her evidence was that she does not know as much about Jurruru country as her brothers, because she was taken away when she was young.

    David Smirke

30. David Smirke was born in about 1955 at Ashburton Downs station. He passed away in 2016. His Aboriginal name was Aduwayi. He was a senior Jurruru law man. His skin was Milanga.

31. As I have noted, David Smirke was Toby Smirke’s brother and Jimmy Smirke’s son. He had two children, Anthony Smirke and Kelman Smirke, who were born on Midaroo station, which is not Jurruru country. Mr Smirke’s evidence was that his children are Jurruru, “because they are in [his] line”, although their mother was Banjima and “they can follow their mother’s side too”.

32. Like Toby Smirke, David Smirke grew up with his parents on Ashburton Downs station, travelling around when his parents were not working. His evidence was that, growing up, “[t]here weren’t just Jurruru people, it was like a jigsaw puzzle – different people around in that time – at Ashburton Downs Station and Kooline Station too”.

33. David Smirke did not go to school. His evidence was that his parents “hid [him] away in the bush” so that he would not be taken by the welfare. When he was around 10 or 11 years old, he got really sick and spent six months in hospital in Perth. After that, he spent time in Roebourne.

34. As an adult, he worked on Ashburton Downs station and later Kooline station. His father and other older people taught him about country and law. His evidence was:

    I learnt about country mostly from my father – he would tell me the stories about country and show me places like the dalus, while we were travelling around.

    Old Kooline Mick, he was an Innawonga man. He could talk Jurruru and he knew a lot about Jurruru country, so he told me a lot as well. He was also a relation to my father – some sort of uncle I think. I don’t know how he came to know so much about Jurruru country and law and culture, but he must have been around Jurruru country a long time to know so much. He was a very strict law man. He would take me around and tell me about Jurruru country.

    There were some other old people at Ashburton Downs Station when I was very young who also told me a lot about country, but I can't remember their names now.

    Yinhawangka and GMY preservation evidence

35. The Jurruru applicant and the Yinhawangka Gobawarrah applicant relied on preservation evidence from both the Yinhawangka Part A and Part B applications and the GMY application.

36. David Cox gave evidence on behalf of the Jurruru respondents at the on-country preservation evidence hearing in the GMY proceeding in 2016. He also gave preservation evidence in 2014 as part of the Yinhawangka Part A and Part B proceedings. The Jurruru applicant relies on David Cox’s witness statement dated 22 May 2014 and his oral evidence on 2 July 2014 at the Ballary Springs community, in the Yinhawangka Part A and Part B proceedings, and on his witness statement dated 22 April 2016 and his oral evidence on 16 and 17 May 2016 at the Wilugari community in the GMY proceeding.

37. Nancy Tommy gave evidence for the GMY applicant at the on-country preservation evidence hearing in the GMY proceeding. The Yinhawangka Gobawarrah applicant relies on Nancy Tommy’s witness statement dated 1 May 2016 and her oral evidence on 16 May 2016 at the Wilugari community in the GMY proceedings.

    David Cox

38. David Cox was born in 1942 at Rocklea in Yinhawangka country, which is where he grew up. His Aboriginal name is Barndu. He is a Yinhawangka elder and his skin is Karimarra.

39. Mr Cox’s father was Frank Cox (Wiribungu) and his mother was Daisy Cox (Windi). Growing up, his parents worked at Rocklea station, and later Wyloo, Mt Stuart, Boolaloo and Nautarra stations. His parents owned horses and a wagon and were independent. As an adult, he worked on different stations in Pinikura country, Banjima country and Thalanjyi country. In the 1960s he moved to Onslow and helped set up the Bindi Bindi community.

40. Mr Cox conceded in cross-examination that he did not learn much about country from his father because he “left here when I was a kid”. He was taught about Yinhawangka country mostly by Stanley Dellaport, an elder variously described by different witnesses as a Yinhawangka, Guruma or Banjima man. Mr Cox’s written evidence was (at [62]):

    I got the Yinhawangka law from other Yinhawangka people, from Stanley Dellaport, Jerry Hyland, Joe Injie, Joe Limerick and Cookie. Old Dellaport was a leading man in my teaching of Yinhawangka law, he taught me everything. Old Jerry Hyland, Tadgee Limerick’s dad, was a Ngarla but he knew a lot about Yinhawangka country because he travelled through that country a lot and he was a next door neighbour. Hyland was a cheeky man. What they taught me was all the Yinhawangka law. I know Yinhawangka country, and the special places and the songs. I know big ceremony songs for when we hold our ceremonies on Yinhawangka country. These are very old songs that have been handed down to us.

    Nancy Tommy

1. Nancy Tommy is the elder sister of Roy Tommy, and she is also a member of the applicant in the Yinhawangka Gobawarrah claim. She was also formerly a member of the applicant in the GMY claim, and was married to Toby Smirke.

2. Mrs Tommy was born in 1951. She identifies as Yinhawangka. Her mother was Mabel Tommy and her biological father was Johnson Hicks, who identified as Guruma. Her skin is Purungu and her Aboriginal name is Bimbayurra (a name given to her by Nyimili Tommy).

3. Mrs Tommy knew Jimmy Smirke before she married his son, Toby Smirke, during the time they were both living near the homestead at Ashburton Downs. It is an agreed fact that Nancy “always recognised that Ashburton Downs homestead was [Jimmy’s] Jurruru country”. Jimmy Smirke later lived with Nancy and Toby at Kooline station, in Jurruru country. It is an agreed fact that they never lived together in the overlap area, and never talked together about sites in that area or who that area belonged to.

   Other significant Yinhawangka Gobawarrah people

   Mabel Tommy

4. Although Mrs Tommy was in no sense a witness in these proceedings, her presence through the Mr Haydock’s tapes recorded in 1999, and her prominence otherwise in the evidence, makes it appropriate to say a little bit more about her early on in these reasons.

5. Mrs Tommy was born in about 1926 in Guruma country to the north of the overlap area. Her Aboriginal name was Jirrirringu. Her mother was Maggie Bimba and her maternal grandmother was Kurta Kurta, who was born and died in Jabaguru. Her siblings were Jambu Giggles, Inji, Limerick, Muyit Smith and Kurnti.

6. Mrs Tommy identified as Yinhawangka and was a fluent Yinhawangka speaker. Her first husband was Nyimili Tommy.

7. Later, she was with Chunki Smith and then Algie Patterson. Her own children were Nancy Tommy, Roy Tommy, Julie Walker and Moira Tommy.

8. Mrs Tommy was a member of the applicant in the GMY claim and helped draw the boundaries of the claim. She knew a lot of old balgabi songs and was a traditional midwife under Yinhawangka law and custom. She was buried at Jabaguru in 2001. Her daughter Moira was also buried at Jabaguru in 2001. The fact that they were each buried at Jabaguru features in several aspects of the evidence.

   Nyimili Tommy

9. As I have noted, Nyimili Tommy was Mabel Tommy’s first husband. His Aboriginal name was Bulkangari and he was also known as Ashburton Tommy. It is an agreed fact that he was a “big Law man” and “mabarn” man. It is also an agreed fact that his parents, Nijawarla and Gujarda, both had Yinhawangka ancestors.

10. David Cox’s evidence was:

    I don’t know what mob he from. Might be Ngarla, you know? Because he talk Ngarla. Most of the time he’d talk Ngarla.

11. Nancy Tommy’s evidence was:

    My old father (babu juju) is Nyimili Tommy also known as Ashburton Tommy. He is a Yinhawangka man. He only ever talked about himself as Yinhawangka. My mother was young when she got with him. She told me it was a traditional promised marriage – arranged by her grandmothers. She said the old people arranged for her to be with Nyimili Tommy to strengthen our Yinhawangka people’s connection to our land.

12. Mabel Tommy’s account in Mr Haydock’s 1999 tapes was:

    He Yinhawangka. He born from Yinhawangka, he Yinhawangka in the mother way, he Yinhawangka in the father way.

13. Nyimili Tommy helped set up Mininer station and built the stockyard at Jabaguru. He was Roy Tommy’s “raising father”; Roy spent his early years with him at Ashburton Downs station, where Nyimili Tommy was working.

14. As an old man, Nyimili Tommy moved to Onslow, where he died.

    Jambu Giggles

15. Jambu Giggles was one of the original members of the GMY applicant. His parents were Kalpi/Galby and Maggie Bimba, and his siblings included Mabel Tommy and Muyit Smith. He does not appear to have had children.

16. Jambu Giggles’ skin was panaka. He was a senior Yinhawangka man who went through the Law in the 1940s at Jigalong. It is an agreed fact that he was “high up in the Law”. He passed away in 2018, at nearly 100 years of age.

    Muyit Smith

17. As I have noted, Muyit Smith was a sister of Jambu Giggles and Mabel Tommy, and her parents were Kalpi/Galby and Maggie Bimba. Her non-Aboriginal name was Amy, which was given to her at Rocklea station, where her mother worked as a cook.

18. Muyit Smith identified as Yinhawangka and was one of the original applicants in the GMY claim. She married a Guruma man called Jack Smith and had six children. Two of her children identify as Yinhawangka and the rest identify as Guruma.

    The Jurruru claim group and the key Jurruru witnesses for the overlap dispute

19. The applicant in the Jurruru #1 claim originally comprised Toby Smirke, David Smirke, Peggy Smirke, Linda Smirke, Shirley Smirke and Lorraine Smirke. Subsequently an amended Form 1 was filed which altered the constitution of the applicant to Ivan Smirke, Shirleen Cox, Paula Smirke, Kellman Limerick and Nathaniel Tommy. After an amendment, the same people comprised the applicant for the Jurruru #2 claim.

20. After the hearing of the separate questions, an interlocutory application under s 66B of the Native Title Act 1993 (Cth) was made on 3 July 2020. The interlocutory application was not opposed by either the State or the Yinhawangka Gobawarrah applicant. On 1 October 2020, the Court made orders in both proceedings replacing the applicants with Ivan Smirke, Kellman Limerick and Alec Alexander: Smirke on behalf of the Jurruru People v State of Western Australia [2020] FCA 1410.

21. The apical ancestors in the Jurruru #1 and Jurruru #2 claims are named as Kantitharra and Punartu. There was some debate in the evidence whether or not they may have been brothers. Kantitharra is the Jurruru apical ancestor on which there was a focus in the evidence. Each of the members of the current Jurruru applicant, and indeed most if not all of the claim group members, are descendants of the apical ancestor Kantitharra through Jimmy Smirke, who was Kantitharra’s son, and Jimmy Smirke’s wife Alice Wilyardany. I have identified their children, including Toby and David Smirke, above. Peggy Smirke’s and David Smirke’s evidence was that another son, Rodney Smirke, was taken by welfare and never seen again.

22. Of the members of the current applicant:

    (a)Ivan Smirke is the son of Toby Smirke and Nancy Tommy;

    (b)Kellman Limerick is the son of David Smirke and Pauline Limerick; and

    (c)Alec Alexander is the son of Linda Smirke.

23. The Jurruru applicants relied on evidence from the following lay witnesses at the hearing of the separate question:

    (a)Ivan Smirke;

    (b)Marlon Cooke; and

    (c)Brendon Cook.

24. Although Kellman Limerick is a member of the Jurruru applicant, and part of the younger generation of the Jurruru People, and although he is mentioned quite frequently in the evidence (including by Dr McGrath), he did not give evidence. There is no explanation in the evidence about why this was so.

    Ivan Smirke

25. Ivan Smirke was born in 1971 in Carnarvon, Western Australia. He identifies as Jurruru through his father, Toby Smirke. His mother, Nancy Tommy, is a member of the applicant in the Yinhawangka Gobawarrah claim.

26. Ivan Smirke grew up on Kooline station, which is within the Jurruru Part A determination area. He learned and spoke the Banjima language growing up, which was the main language spoken in the places he lived.

27. Mr Smirke’s skin is panaka, which is the same as his maternal grandmother, Mabel Tommy (Jirrirringu). Ivan Smirke used to spend time with his grandmother at the Waramboo outcamp on Yarraloola station, and also at the Bellary Aboriginal community near Tom Price.

28. Mr Smirke gave evidence that he went through the Yindjibarndi Law on Yindjibarndi country. When he went through the Law, his mother Nancy Tommy, maternal grandmother Mabel Tommy, Jambu Giggles, Muyit Smith and Gladys Walker (Muyit Smith’s daughter) were with him at the Law camp. Jambu Giggles joined Ivan Smirke at the men’s camp.

    Marlon Cooke

29. Marlon Cooke was born in 1982 in Dampier, Western Australia, and grew up around Roebourne. He identifies as Yinhawangka and is a native title holder under the Yinhawangka Part A and B determination.

30. Mr Cooke’s mother, Doris Limerick, was Yinhawangka. His maternal grandfather, who Marlon never met, was known as Cookie, and was Yinhawangka. His maternal grandmother was Dora Dellaport, who was Guruma. Marlon Cooke’s father was a non-Aboriginal man. When he was 12 years old, Mr Cooke’s mother married Joseph Limerick, a Ngarlawangga/Yinhawangka man.

31. In his evidence, Mr Cooke described how on his grandmother’s side “you go back” to the ancestors common to both the Yinhawangka determination and the Yinhawangka Gobawarrah claim – Thurantajinha and Wilga. However, in his oral evidence he accepted that the main ancestor through whom he claims is Minatangunha.

32. Mr Cooke has been through the wardilba Law. Like Brendan Cook, Marlon Cooke gave evidence as a Yinhawangka person in support of the Jurruru claims.

    Brendon Cook

33. Brendon Cook was born on 6 September 1966 in Onslow, Western Australia. He grew up around Onslow, Carnarvon, Wittenoom and Roebourne.

34. Mr Cook’s Aboriginal name is Bagadu. He identifies as Yinhawangka through his father, Nicholas Cook, who was a member of the applicant in the former Innawonga claim. Mr Cook’s mother, Joyce Drummond, is Malgana and Nanda, from further to the west. His six siblings all identify as Yinhawangka through their father.

35. Brendon Cook shares paternal grandparents with Marlon Cooke: Brendon’s paternal grandfather was known as Cookie or “Cookie Cutacross” and his paternal grandmother was Dora Dellaport. Both of his paternal grandparents lived and worked at Ashburton Downs station which covers a significant part of the overlap area, although the area around the homestead is just outside the overlap area to the west, on Jurruru country. Mr Cook’s father Nicholas also spent time on Ashburton station as a child, where Mr Cook’s evidence was that he would be looked after by Mabel Tommy.

    The Yinhawangka Gobawarrah claim group and the key Yinhawangka Gobawarrah witnesses for the overlap dispute

36. The Yinhawangka Gobawarrah applicant comprises Roy Tommy, Nancy Tommy, Mr E.G. and Mary Mills. The members of the applicant are all descendants of the children of Maggie Bimba and Kalpi/Galby. Maggie Bimba was a daughter of Kurta Kurta, and through Kurta Kurta the granddaughter of the Yinhawangka Gobawarrah apical ancestors Thurantajinha and Wilga.

37. Nancy and Roy Tommy are both children of Mabel Tommy. Their Aboriginal father was Nyimili Tommy, who was the son of Gujarda and Nijawarla Johnny. Gujarda is another Yinhawangka Gobawarrah apical ancestor. Gujarda’s genealogy is disputed by the Jurruru applicant and the State.

38. Mary Mills is the daughter of Muyit Smith, another of Maggie Bimba and Kalpi/Galby’s daughters.

39. Mr E.G. is the son of Kurnti Kalbi, who was one of the sons of Maggie Bimba and Kalpi/Galby.

40. The Yinhawangka Gobawarrah applicant called the following lay witnesses at the hearing of the separate question:

    (a)Roy Tommy;

    (b)Julie Walker;

    (c)Donald Limerick;

    (d)Leon Galby; and

    (e)Kurston Tommy.

41. The Yinhawangka Gobawarrah applicant had initially proposed also to call Nancy Tommy. Mrs Tommy had given preservation evidence in 2016 as part of the GMY claim. During the course of the hearing, counsel for the Yinhawangka Gobawarrah applicant indicated it proposed to rely on Mrs Tommy’s evidence from that proceeding. Neither the Jurruru applicant nor the State objected to this course. The Court did hear some brief explanations of various plants found at Jabaguru from Mrs Tommy, with Julie Walker.

    Roy Tommy

42. Roy Tommy was a key lay witness, and as I have explained also a member of the applicant for the Yinhawangka Part A and Part B applications. At the time of trial, he was employed as Senior Heritage Officer at the Yinhawangka Aboriginal Corporation.

43. Mr Tommy was born on 11 August 1959 in Roebourne. He identifies as both a Yinhawangka and Gobawarrah Yinhawangka man. His skin is Purungu, and his Aboriginal name is Pitithangu. His mother was Mabel Tommy and his “raising father” was Nyimili Tommy.

44. Roy Tommy spent his early years at Ashburton Downs station, with his mother, Mabel Tommy, Nyimili Tommy and his twin sister Julie. He went through the Law at Cane River in the 1980s.

    Julie Walker

45. Julie Walker is the twin sister of Roy Tommy, and is also a member of the applicant in the Yinhawangka Gobawarrah claim. She is also a common law native title holder in the Yinhawangka Part A and B determination.

46. Mrs Walker identifies as both Yinhawangka and Yinhawangka Gobawarrah. Her Yinhawangka name is Walkyn, and that name was given to her by her maternal grandmother Maggie Bimba. Julie’s skin is Purungu, which is the same skin as her ancestor Wilga, who is classified as Ms Walker’s sister under the Yinhawangka kinship system.

47. Like her twin brother, Mrs Walker spent her early years, until age five, living at Ashburton Downs station. She went to school in Onslow, but during holidays she and Roy went back to Ashburton Downs and some other stations on neighbouring Ngarla country, depending on where her mother and father were working at the time. The family used to travel and camp back and forth along the Meekatharra Ashburton Downs road where it goes through the overlap area. She also spent some time living at Kooline station when she was around 14 or 15 years old, when she was looking after her sister Nancy’s son, Ivan Smirke. Under the Yinhawangka kinship system, Ivan Smirke calls Mrs Walker mum.

48. After being the first Aboriginal student to finish year 12 at Port Hedland, Mrs Walker moved to Perth to study at university and graduated with degrees in social work. She would return to the Pilbara for holidays, including to visit her mother Mabel Tommy who was then living with Algie Patterson, an old Robe River Guruma man. Julie Walker can speak some Yinhawangka words, and considers language an important part of her identity.

49. Mrs Walker recalls visiting sites in the area known as Jabaguru (the pool in the river, the nearby hill and the meeting camp area) with her mother when she was young. She has visited those sites many times, both with her mother and with her own children. She visits the area at least twice a year to maintain the grave sites there and to pay respect to the spirits of her ancestors.

    Donald Limerick

50. Donald Limerick is a member of the Yinhawangka Gobawarrah claim group.

51. He was born on 11 September 1966 in Onslow. His father, Joe Limerick, was Yinhawangka. Joe’s mother was Maggie Bimba and his father was Kalpi/Galby. Thus, Joe Limerick was a sibling of Mabel Tommy.

52. Mr Limerick’s mother, Tadjee, is a Ngarla woman. He has three brothers.

53. Mr Limerick was raised at Koodarie station, near Onslow, where his mother and father worked. Like many others, he went to primary school in Onslow and then high school in Port Hedland. After he left school and married he worked at Yaraloola station, where he regularly visited his aunt Mabel Tommy, who was then living at the outcamp at Yaraloola with Algie Patterson. He moved around in those days to work on different stations. He then moved to Port Hedland and got married again. He lived there for about 11 years and then moved to Karratha with his third wife and ended up getting a job at West Angelas, where he works now.

54. Mr Limerick went through the Bidarra Law in 1984 at the Yindjibarndi Law Ground at Woodbrook, near Roebourne. He is involved in Law business in the Pilbara in places including Woodbrook, Cane River, Bellary, Wakkathuni, Jigalong and La Grange.

    Leon Galby

55. Leon Galby is a member of the Yinhawangka Gobawarrah claim group.

56. Mr Galby was born on 17 May 1981 at Carnarvon. His mother is Lynette Galby, and his mother’s father was Kurnti Kalbi, who was another sibling of Mabel Tommy and Joe Limerick from their mother Maggie Bimba. His skin is karimara.

57. Leon Galby grew up around Carnarvon, Karratha, Onslow and Bellary. As a teenager, he lived with his uncle Mr E.G. at the Bellary community for a few years. Mr Galby’s classificatory grandfather (his maternal grandfather’s oldest brother) was Jambu Giggles, and his classificatory grandmother (his maternal grandfather’s oldest sister) was Mabel Tommy. They were both living at the Bellary community when he was living with Mr E.G.

58. Leon Galby went through the Bidarra law at Woodbrook in 1998.

59. Mr Galby assisted with the burial of Moira Tommy (Mabel’s daughter) at Jabaguru in 2001, along with his Uncle Mr E.G., and his Aunt Nancy Tommy’s sons Ivan, Halloway and Nathaniel.

    Kurston Tommy

60. Kurston Tommy is a member of the Yinhawangka Gobawarrah claim group.

61. Kurston Tommy was born in 1978. His mother is Julie Walker. He has two brothers. His skin is banaka, which is the same skin as his grandmother, Mabel. His Aboriginal name, Kurumangu (which is also his totem, the goanna), was given to him by his old grandfather Algie Patterson, Mabel Tommy’s last husband. Kurston Tommy has ancestry from Halls Creek and the Noongars in south-west Western Australia on his father’s side, but he identifies as Yinhawangka, through his mother. He is married to a Thursday Island woman and he helps bring up her children.

62. When he was young, Kurston Tommy lived with his mother in Perth, and later in Onslow. He would visit his grandmother Mabel and Algie Patterson during the holidays at Algie’s country near Pannawonica. He has moved around quite a lot, but he did the last three years of his apprenticeship in Paraburdoo where Mabel and Moira Tommy were living at the time.

63. In 1999 or 2000, Mabel Tommy arranged for Kurston Tommy to go through the Bidarra Law (being the Yindjibarndi Law). Mr Tommy is able to participate in Law Business in places like Cane River, Bellary or Wakkathuni.

64. Kurston Tommy helped to prepare Mabel Tommy’s burial site at Jabaguru. He visits his ancestors’ graves in Jabaguru from time to time, as well as Mabel’s father’s grave (that is, Kalpi/Galby) near the Ashburton Downs homestead, on Jurruru country.

    The family connections between the Smirke and Tommy families

65. The family relationships between the groups may well be apparent by this stage, but it is appropriate to emphasise them.

66. Nancy Tommy was married to Toby Smirke. They separated when their son Ivan Smirke was around ten years old.

67. The children of Nancy and Toby – Ivan Smirke, Halloway Smirke, Nathaniel Smirke and Kieran Smirke – have both Yinhawangka and Jurruru ancestry. Through their mother, they can claim a connection to Thurantajinha and Wilga. Ivan Smirke identifies as Jurruru. Halloway Smirke and Nathaniel Smirke identify as Jurruru through their father and Yinhawangka through their mother. Kieran Smirke started identifying as Yinhawangka after his mother, but has recently made it clear he wants to follow his Guruma grandmother’s side.

68. Dr McGrath, the Jurruru expert anthropologist in this proceeding, described the close familial connection between members of the Jurruru and Yinhawangka Gobawarrah claim groups in her expert report:

    [T]he Jurruru people and members of the Yinhawangka Gobawarrah group are very close family; in fact, as close as you can get. The most senior elder of the Jurruru people, Toby Smirke, was at one time married to a senior elder of the Yinhawangka Gobawarrah group, Nancy Tommy. Toby and Nancy have four sons, whom variously identify as either Jurruru or Yinhawangka. Other members of the Jurruru people include the children of Toby Smirke’s siblings and other extended family members who share descent from Jurruru ancestors; other members of the Yinhawangka Gobawarrah people include the children of Nancy’s siblings and other extended family members who share descent from Yinhawangka ancestors.

    The Cooke/Cook family

69. As I have stated, Marlon Cooke and Brendon Cook are Yinhawangka men who appeared as witnesses on behalf of the Jurruru applicant in this proceeding.

70. They are both second-generation descendants of Cookie Cutacross (who was Yinhawangka) and Dora Dellaport (who was Guruma). Dora Dellaport’s grandmother, Maybanba Millie, was the sister of Maggie Bimba (who was Mabel Tommy’s mother). The descendants of Dora Dellaport in the Cook or Cooke family, like members of the Tommy family, can trace their ancestry to Kurta Kurta, and then to Thurantajinha and Wilga.

    The Limerick family

1. Again, therefore, for Dr Palmer, it is apparent that the question whether the Yinhawangka Gobawarrah exist as a subgroup in the relevant sense is tied up with the question of whether rights in the overlap area have been acquired by descent. I have accepted this is the appropriate approach, and it is the one on which both the Jurruru and Yinhawangka Gobawarrah native title applications are based. Appropriately, he goes no further than that, seeing (correctly in my respectful view) the consequence of this opinion to involve questions of law about the operation of the Native Title Act and s 223 in particular.

2. In cross-examination, Dr Palmer explained his opinion that the relevant group for native purposes was formed as a result of the marriage of Mabel Tommy and Nyimili Tommy:

   MR WRIGHT: Yes. And so, if a country group was used in the sense of an estate group, then the descendants of those four people would not constitute a single estate group?

   DR PALMER: Well, they do now because of the marriage of Mabel and Tommy Ashburton and their resulting offspring. So, they – they trace common descent to separate areas, and I think what’s happened is that there’s been a sort of an amalgamation. Remember this – the idea of these individual estates is the product of my research, right?

   MR WRIGHT: Yes.

   DR PALMER: And the basis of the claim, as far as I understand it, or the assertion of rights is to the whole of this area. And this is my interpretation of how they’ve got there, but it hinges on obviously a descent from – well, it hinges on descent, and in this case a cognatic descent through the lines of Mabel, which take you up through to Thurantajinha and Wilga, and through Ashburton Tommy to Nijawarla and Gujarda.

   MR WRIGHT: And so, can I put this proposition to you, until such time as that marriage took place between Mabel and Ashburton Tommy, there was no such country group of the kind you’re referring to in paragraph 122?

   DR PALMER: The way I categorised – bear in mind this paragraph is about the term “Yinhawangka Gobawarrah”, I’m trying to understand how the Yinhawangka Gobawarrah as a group of people could be understood in terms of their traditional relationship to country, and that’s my interpretation of it.

   MR WRIGHT: Alright. So, again, I’ll just ask that question again, and perhaps if you can try and answer it directly.

   DR PALMER: Yes.

   MR WRIGHT: Until that marriage of Mabel and Ashburton Tommy, there was no such country group of the kind that you’re referring to in paragraph 122?

   DR PALMER: Correct.

3. This aspect of Dr Palmer’s evidence (among others) was criticised by the Jurruru applicant:

   That evidence is particularly unpersuasive. Such a ‘group’ only formed as a result of the marriage of Mabel and Nyimili Tommy. The YG apicals were previously members of different country groups ([160]). On that basis, any collection of Yinhawangka ancestors and their descendants could be similarly characterised. See T1213-1216. The country of this new ‘group’ is simply an aggregation of the countries of Mabel’s and Nyimili’s ancestors (see similarly T1209.15-.25).

4. Without committing to a position, the State appeared to doubt that there was a sufficient evidentiary basis for finding that any group formed upon the marriage of Mabel Tommy and Tommy Ashburton “has the requisite continuity with the estate groups from which the Yinhawangka Gobawarrah applicant asserts the country group’s rights descended”.

5. Later in cross-examination, Dr Palmer gave an explanation of his methodology and confirmed that his opinion was not that Yinhawangka Gobawarrah are a country group in the pre-sovereignty sense but were rather “a contemporary representation of that sort of group”:

   MR WRIGHT: Now, the YG, and I’ll use that shorthand phrase, do you understand that they assert rights throughout the whole of the Yinhawangka determination area?

   DR PALMER: That’s my understanding of the application before the court, yes.

   MR WRIGHT: Well, I better clarify that. I’m talking about – maybe it’s my question, sorry – that they assert rights throughout the whole of the Yinhawangka determination area and the overlap area that we’re dealing with now?

   DR PALMER: Oh, I have no knowledge of the Yinhawangka matter I’m sorry. I don’t know the answer to what they’re claiming with respect to the Yinhawangka. You’d have to tell me. You’d probably know.

   MR WRIGHT: Alright. Well, if I tell you that they as a – the people who make up the Yinhawangka Gobawarrah group - - -

   DR PALMER: Yes.

   MR WRIGHT: - - - will you just accept this for the moment - - -

   DR PALMER: Yes.

   MR WRIGHT: - - - assert rights across the whole of the overlap area and the whole of the Yinhawangka determination area?

   DR PALMER: Right. Okay, yes, I’ll accept – I’ll accept that as correct, of course, that you’re telling me.

   MR WRIGHT: Yes. So, would you accept that that – the consequence of that is that they do not have any territorial distinction between them and the broader Yinhawangka language group?

   DR PALMER: Well, no, because I don’t know what the basis is upon which they are included or excluded – well, on the basis on which they’re included in the original Yinhawangka claim. I mean I can only presume there to be evidence that they trace descent from ancestors who held rights in that area at sovereignty, but I’m not aware of that. I mean, well, Mt Channar and up there and the, what I call, Middle Turee, I don’t know what claim that’s in, but they trace descent from her, for example. I don’t know whether that’s of assistance to you.

   MR WRIGHT: Yes, and all the way across to the Governor and those areas, and if I told you that they assert rights throughout that area, does that affect your opinion as to the YG being a distinct subgroup of the Yinhawangka holding a distinct set of rights?

   DR PALMER: Well, the – my job as an anthropologist is not really to – at least for the purposes of what I’m doing here isn’t to sort of analyse why it is that people belong to certain claim groups. What I have to try and do is understand what’s the customary basis upon which the claim is founded. So, the example I’ve just given you, for example, is that well, if – well, first of all I said I don’t know the basis of the Yinhawangka claim that the ancestors that were listed and how people claim descent from them. So, maybe it’s better just to leave it at that because otherwise I’m – you know, I’m really asking you to give me ethnography upon which I can comment upon, which is perhaps not altogether a good anthropological expedition.

   MR WRIGHT: Well, perhaps I’ll just ask you this question: is it your opinion in this proceeding that the Yinhawangka Gobawarrah as a country group, as you’ve described them in paragraph 122, have a distinct area of country for which they are the country group?

   DR PALMER: Well, that’s the assertion that they’re making and that I – in the research that I’ve done in terms of the descended right from ancestors, have demonstrated the degree to which I think that might be so.

   MR WRIGHT: And if that – those rights extend further beyond this application area, is that something that you have taken into account?

   DR PALMER: No, because I didn’t – I didn’t answer – look, address, and therefore did not answer, the question about - which would have been, “Where else did the Yinhawangka Gobawarrah group claim traditional rights?” In other words, no-one asked me to answer the question, “Did Gujarda’s country extend into what is now understood to be the Yinhawangka determination area?” I didn’t answer that question because I wasn’t asked it.

   MR WRIGHT: So, just to be clear in my mind, and I apologise if I’m perhaps going over the same ground, what do you say to the proposition that the Yinhawangka Gobawarrah as a current country group, as you define it, is not a subgroup of the broader Yinhawangka people?

   DR PALMER: Well, just to be clear, I actually wrote that I have the view – that I am of the view that as a contemporary representation of a customary formation, they’re not the country group in the sense that they would have been at sovereignty. So, just to be clear, you know - - -

   MR WRIGHT: Yes.

   DR PALMER: - - - because you’re tending just to slide across a bit, I think, here and say I’m calling them a country group. And they are a group today who are a contemporary representation of the sort of group that at sovereignty held rights to country. That’s what I’m saying.

   Dr Sackett

6. In his Yinhawangka connection report Dr Sackett expresses some opinions, which I find persuasive, which support the views I have taken about the Yinhawangka Gobawarrah’s case that the overlap area is held under a separate native title. Dr Sackett was not of course addressing the issues raised in this separate question proceeding, but he was closely considering what the (then) GMY claimants, as well as other Yinhawangka people, said about rights and interests in country.

7. Dr Sacket’s opinion was that there is a single Yinhawangka People, that today collectively own Yinhawangka country (at [8], [10] of his connection report):

   Today, claimants see themselves as jointly owning or holding Yinhawangka lands. From their point of view, there is a Yinhawangka people-Yinhawangka country nexus. (Kingsley Palmer found much the same situation among the neighbouring Jurruru.) More than this, though, they indicate there is a Yinhawangka people-Yinhawangka country-Yinhawangka Law nexus. What is central is that the claimants, as Yinhawangka people, are united in and by their acknowledgement and observance of a body of law and custom, which they take to be Yinhawangka law and custom, giving rise to rights and interests in Yinhawangka lands. For them, just as they are Yinhawangka through their descent from Yinhawangka ancestors, so they acquire rights and interest in Yinhawangka lands through their descent from previous Yinhawangka landholders. …

   This is only part of the situation, though. I have noted that it is likely that traditionally estates or country areas were owned by estate groups or country groups. I further have noted that today Yinhawangka country is collectively owned by Yinhawangka people.

   (Emphasis added.)

8. This was echoed later in the report and is reflected in language, for example:

   As in part comes across in the statements of Doris and Darren, it is not just a case of Yinhawangka people relating to Yinhawangka country, it is one of all Yinhawangka people sharing all Yinhawangka country. This further is apparent in how people speak with or to the countryside itself. According to Dench, the term ngurrara means “country, homeland”. Claimants say the word ngurraratji means a person who owns or belongs to the country. In the event, they use ngurraratji when referring to themselves as individuals in relation to Yinhawangka country as a whole.

9. Dr Sackett expressly addressed the idea that the then-GMY might be seen as a separate group, which he considered “oversimplified reality”:

   Third, although at times the Yinhawangka identifying descendants of Minatangunha and Jarndunha were spoken of, and some spoke of themselves, as being the INN claimants, and the Yinhawangka claimants of the IB claim group, and the Yinhawangka identifying descendants of Thurantajinha and Wilga were spoken of, and some spoke of themselves, as being the GMY claimants, this oversimplified reality. For one, and as will become clearer below (paras 189-222), intermarriage between descendants of the three apicals means that a number of claimants were and are able to trace their descent from more than one of the apicals, meaning they could and did appear in both the INN/IB and the GMY family trees. In this regard, for example, GMY claimant Gladys Walker is Thurantajinha and Wilga’s daughter’s daughter’s daughter’s daughter; she also is Minatangunha’s son’s son’s daughter. Similarly, INN/IB claimant June Injie is Jarndunha’s daughter’s daughter’s daughter’s daughter; she also is Thurantajinha and Wilga’s daughter’s daughter’s son’s daughter.

10. At [180] of his connection report:

    Gladys Walker, among others, expresses the view that in the past Yinhawangka families held sub-areas of Yinhawangka country. This roughly parallels the idea that clan or estate groups and local exploitation groups likely held and occupied portions of Yinhawangka country in the pre-sovereignty period. If true, it would mean that formerly sub-groups of Yinhawangka held sub-sets or sub-areas of Yinhawangka country. As Tonkinson notes, though, such sub-groups disappeared long ago. He suggests that well:

    before any of the Aborigines alive today were born, the expansion of the pastoral frontier into the Ashburton area dislocated Aboriginal groups from their traditional [semi-] nomadic existence and drew them into the station economy, thus transforming their society into a much more sedentary…one. The traditional forms of local organization were abandoned as members of formerly separate (but interacting) groups gathered together on stations scattered through the area.

11. At [244]:

    As in part comes across in the statements of Doris and Darren, it is not just a case of Yinhawangka people relating to Yinhawangka country, it is one of all Yinhawangka people sharing all Yinhawangka country. This further is apparent in how people speak with or to the countryside itself. According to Dench, the term ngurrara means “country, homeland”. Claimants say the word ngurraratji means a person who owns or belongs to the country. In the event, they use ngurraratji when referring to themselves as individuals in relation to Yinhawangka country as a whole.

    Lola Young said, “ngurraratji – that mean you belong to the land.”

    Nancy Tommy suggests ngurraratji means “I’m belong to here too, I’m one of your spirits.”

    (Footnotes omitted.)

12. And at [247]-[249]:

    Yinhawangka claimants’ claims to undifferentiated and undivided Yinhawangka land further are to be seen in the way they appear to interact with it. Damian Walker, for example, remarks, “We [he and his brothers] go all over the place [Yinhawangka country].” The idea here is that as Yinhawangka men they can and do freely access Yinhawangka country, barring sites they as yet may not have been introduced to. They are not confined to portions of the claim area, nor do they require permission from any other Yinhawangka to access the land.

    The undifferentiated and undivided nature of Yinhawangka country comes across at another level as well. I below (see paras 258-259; see also para 180) look at how it has been suggested that prior to sovereignty the Yinhawangka were divided into estate or local groups, and Yinhawangka lands were divided into estate or local group areas, each of which in turn was associated with one or more dalu or totemic sites. If this was the case in the past, it is not the case today. Significantly here, the dalu or totemic sites on Yinhawangka country are held not by Yinhawanga sub-sets or sub-groups, but by all Yinhawangka.

    (Footnotes omitted.)

13. From [330] of his connection report Dr Sackett notes the demise of the estate group system as it existed pre-sovereignty, and then observes:

    This said, I recorded a few claimants speaking about something that at first blush appears to constitute a development of sorts on the former estate and estate group system.

    Some (then) GMY claimants spoke of the claim area as being made up of, or divisible into, three portions, each of which was associated with one of three of Thurantajinha and Wilga descendants, and, in turn, with their descendants.

14. After setting out how this was put to him (mostly by Roy Tommy and Julie Walker), Dr Sackett explains (at [333]-[339]) why he finds their accounts, and the accounts of others (eg Gladys Walker), of divided country between different Yinhawangka families confusing and problematic. He concludes (at [338]-[340]):

    When all is said and done, though, there is no real evidence that the three alleged areas or portions of the claim promoted by Roy and Julie were/are anything more than the outcomes of relatively recent residential or employment activities. As Gladys says, “I just like to talk about the area where I been…West Angelas right up to just past Mud Spring.” She indicates that that is where she and her family lived when she was young. Similarly, Jambu/Limpet grew up on Rocklea; of Bellary he says, “I made a yard there.” And Nancy and Roy recall growing up on Ashburton Downs, to the west of the claim area.

    Likewise, it appears Lola’s feelings for parts of the eastern portion of the claim area arose or stemmed from the fact that it was an area she and her family moved in, though and around when she was a girl. And Churchill points out that the area he feels at ease in is that said to be where his father’s father, Turtja/Cutacross George, was born.

    In the end, while some claimants indicate they have links to particular portions of the claim area, they and their fellows, as has been noted (paras 242-247), also indicate that all Yinhawangka share all Yinhawangka country. While some claimants declare links to specific areas within the claim area, in the end their interests clearly do not stop at such places or areas. Rather, it might be said that such areas for some mark the foundations of their interests, being areas with which they and/or their relatively immediate ancestors were directly associated.

    (Footnotes omitted, emphasis added)

    Findings

15. Dr Sackett was not called as a witness in this proceeding, and I would not rely on his opinions as the sole source for any findings. However his reports were in evidence, and both the lay and expert witnesses commented upon them, and the parties made submissions about them. I consider his opinions support the conclusions I have reached having considered all of the evidence.

16. The names and labels which are adopted by claimants as the name of the group said to hold native title are many and varied. I agree with Dr Palmer that the issue is not the name or label a native title claim group gives itself. The critical issues, as the Jurruru applicant and the State contend, is whether the Yinhawangka Gobawarrah are capable of being recognised as a native title holding group under the Native Title Act, and second, whether the evidence establishes on the balance of probabilities that they do hold such native title under traditional law and custom.

17. I accept, as cases such as De Rose (No 2) demonstrate, that there is no necessary numerical minimum inherent in the Native Title Act’s statutory concept of native title in s 223. As that decision indicates, in a given factual circumstance, there may be only a small number of people (or even only one) who can meet the requirements of s 223. Native title may nevertheless exist, and be recognised. Thus it is not the size of the Yinhawangka Gobawarrah group, nor the fact it is essentially comprised of one extended family, which is the issue. Indeed, the Jurruru claim group also comprises essentially one family, and is numerically smaller. Thus, the Yinhawangka Gobawarrah claim group is capable of being a native title holding group, if they establish they satisfy the requirements of s 223.

18. In my opinion, the evidence does not support the Yinhawangka Gobawarrah applicant’s contention that, as a group, they hold a native title in the overlap area (or parts of the overlap area, on my findings) which is a separate and distinctive native title from the Yinhawangka People. Rather, in my opinion, native title is held in those parts of the overlap area I have identified in these reasons by the Yinhawangka People, including the members of the Yinhawangka Gobawarrah claim group. It is the traditional law and custom of the Yinhawangka People which connect them to that land and waters. It is not any separate system of law and custom. Further, there is no proven aspect of Yinhawangka traditional law and custom which apportions separate and distinct rights and interests to a sub-group of people.

19. Rather, the evidence suggests, as it does for other areas of the Yinhawangka Part A and B determination, that certain people have particular associations or affiliations with certain parts of the land and waters over which native title is held, and assume particular responsibilities for certain areas, or may be recognised as able to “speak” for those areas. The evidence shows those circumstances may arise because of the acquisition of rights through descent from particular ancestors. It may arise though other matters – birth, death and burial, lived association, and the like. Those matters are not the source of the rights, but they are aspects of traditional law and custom which form part of the connection of the Yinhawangka People to their land. They are, nevertheless, matters for intramural allocation.

1. The lay evidence, including the statements from Mabel Tommy, demonstrates that the term “Gobawarrah” is generally recognised as a Yinhawangka word identifying a particular stretch of the Ashburton River. There is some evidence of early recognition and use of this word association. However, prior to around the time at which the GMY claim was first made, there was no traditional understanding that those who now constitute the Yinhawangka Gobawarrah were anything other than people who identified as Yinhawangka. After that time, there was certainly a contemporary understanding that this group were Yinhawangka-identifying people who claimed that Yinhawangka country was broader than other Yinhawangka-identifying people considered it to be. This situation offers no probative evidence of any aspect of traditional law and custom which would support a finding of the claim group described by the Yinhawangka Gobawarrah as a group holding separate native title in the part of the overlap area I have found they do have rights and interests, and with which they have maintained a connection under traditional law. What the evidence shows is that these matters all have as their foundation Yinhawangka traditional law.

2. Country to the thrust of the Yinhawangka Gobawarrah applicant’s case, I find it is more likely than not that this is the way Mabel Tommy viewed the matter. She identified herself as a Yinhawangka person first, but she had a view that her ancestors’ country ran all the way down to the Ashburton River, a view which I have in substance upheld in this proceeding. There is likely to be some truth in the view expressed by Dr McGrath that, especially in the 1990s, Mabel Tommy may not have been taken as seriously, or her account given as much weight, because she was a woman.

3. The use of “Gobawarrah” by Mabel Tommy, Jambu Giggles, Muyit Smith and perhaps other older Yinhawangka people, has been turned into something it was never intended to be, in my respectful opinion. The reason for that may lie in the deep animosity between the groups, and a search for a way through it to a native title outcome. Whatever the motivation, I do not accept it has a proven basis which is compatible with the terms of s 223 of the Native Title Act.

4. On this question, the expert evidence is more unanimous than on some of the other topics. The fact that none of the experts who have worked in this area over a long time unequivocally saw the Yinhawangka Gobawarrah as a separate and distinct native title holding group should be given some weight.

5. I agree with the submissions of the Jurruru and the State that if Dr Palmer was advancing a thesis that a “country group” was formed as a result of the marriage of Mabel Tommy and Nyimili Tommy, being a group holding a distinct native title, that should be rejected. This was an approach rejected by Dr Sackett in his connection report. I agree there was no real evidentiary basis for such a finding, especially since this was a post-sovereignty event. What I find can be said about the marriage was that it made available to the descendants of Mabel Tommy and Nyimili Tommy, by reasons of the post-sovereignty adaptation of rights being taken by cognatic descent rather than only patrilineal descent, the taking of rights through both their father and their mother. That is an orthodox application of a descent-based pathway with, as I have observed, the post-sovereignty adaptation to cognatic descent.

6. However, I do not consider Dr Palmer was advancing such a thesis, as the extract from his evidence at [1279] above makes clear. Although at one point in his evidence it might appear as if he agreed to the proposition, I find the better view of his evidence in context is that Dr Palmer rejected the suggestion he apprehended senior counsel for the Jurruru applicant was making that the Yinhawangka Gobawarrah could be described as a “country group”, in the sense Dr Palmer had used that term in his 2019 report to refer to local estate groups, which held traditional or customary rights to particular tracts of land and waters at the time of effective sovereignty. His opinion was, I accept, that the Yinhawangka Gobawarrah are a “contemporary representation of the sort of group that at sovereignty held rights to country.” That is, they are a group which takes its rights by descent from apical ancestors who held rights in, and a connection to, particular tracts of country. There is no assertion inherent in that opinion about whether or not the contemporary representation of the sort of group that at sovereignty held rights can meet the requirements of s 223 of the Native Title Act: Dr Palmer expressly disclaimed venturing into that territory, and correctly so.

7. On the evidence then, this aspect of the Yinhawangka Gobawarrah case must fail. The evidence, lay and expert, and the accounts from Mabel Tommy, Jambu Giggles and Muyit Smith in particular, establishes comfortably that the Yinhawangka People are a single community, with shared customs and traditions, and shared laws about the acquisition of rights in land and waters, although within that single community there may be descent-based groups with particular affiliations and responsibilities for particular areas. I am satisfied this was the kind of affiliation and responsibility of which Mabel Tommy spoke, when she described those areas of country around the Ashburton River she felt responsible for, having inherited that responsibility from her parents and grandparents. But she did so as a Yinhawangka person, recognising and adhering to what she understood to be Yinhawangka law and custom, the same law and custom which governed her, and her family, in relation to the land and waters which are covered by the Yinhawangka Part A and B determination. The fact this determination was not made until sometime later does not affect how her accounts in 1999 are to be understood – she was, I am satisfied, speaking about law and custom operating across all of Yinhawangka country.

8. All of the Yinhawangka Gobawarrah claimants, as well as the Yinhawangka witnesses, and especially the three elders on the 1999 Haydock tapes, spoke of a singular “connection” to country identified as Yinhawangka in the way described by the Full Court in Alyawarra at [88]:

   From the preceding it can be seen that ‘connection’ is descriptive of the relationship to the land and waters which is, in effect, declared or asserted by the acknowledgment of laws and observance of customs which concern the land and waters in various ways. To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land. There is inescapably an element of continuity involved which derives from the necessary character of the relevant laws and customs as ‘traditional’. The acknowledgment and observance, and thereby the connection, is not transient but continuing.

9. Although the members of the Tommy family, if I might use that descriptor, have come together to make this claim, and have adopted a name for the claim which reflects both their Yinhawangka identity and their understanding of the centrality of the Ashburton River to Mabel Tommy’s understanding of her country, the label or name attached to the claim does not necessarily render those who gather together under it “native title holders” as the Native Title Act employs that concept.

10. Lastly, and critically in my opinion, this aspect of the Yinhawangka Gobawarrah argument must fail because of the existence and content of the Yinhawangka native title determination in Jones. The Yinhawangka Gobawarrah claimants are native title holders under the Yinhawangka determination, through two of the four apical ancestors they claim under in their present application. The Court’s determination in Jones recognises, as the Court’s reasons state (at [26]):

    The joint submissions further detail that, under Yinhawangka traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Yinhawangka People. The Yinhawangka People today can trace their lineage to a Yinhawangka ancestor who had a traditional connection to the Determination Area. Membership of the Yinhawangka People requires what traditional laws and customs recognise as descent from such a Yinhawangka ancestor, and self-identification as a Yinhawangka person and acceptance of that identity by other members of the Yinhawangka People in accordance with traditional laws and customs. It also requires connection with Yinhawangka country in accordance with traditional Yinhawangka laws and customs.

11. And at [36]:

    Ms Holloman deposes that the identified apical ancestors in both of the Yinhawangka Applications and the Determination are the same. The description differs in that the Determination adds additional qualifiers, requiring a person to “identify” him or herself as a Yinhawangka person under traditional law and custom and to be so identified by Yinhawangka people, and also to have a connection with the land and waters of the Determination Area in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka people. In the affidavit, Ms Holloman states that these additional qualifiers provide a “more accurate” way of describing the proposed native title holders, are consistent with the traditional laws and customs of the Yinhawangka People, and are consistent with the anthropological evidence outlined in the Connection Material.

    (Emphasis added.)

12. At [39] and [51], the Court accepted all these matters (and others), and made the determination of native title on the basis of them.

13. The Determination made was (at [3]):

    The native title in the Determination Area is held by the Yinhawangka People. The Yinhawangka People are the people referred to in Schedule Seven.

14. Schedule Seven provided:

    The Yinhawangka People are those persons who:

    (a) are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka People:

    (i) Minatangunha;

    (ii) Jarndunha; or

    (iii) the couple Thurantajinha and Wilga; and

    (b) identify themselves as Yinhawangka under traditional law and custom and are so identified by other Yinhawangka People as Yinhawangka; and

    (c) have a connection with the land and waters of the Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka People.

15. These are descriptions which plainly equate with the descriptions of a single community made up of various descent groups, with connections to particular areas within the wider country held communally by the whole group, as described by the Full Court in Alyawarra in the passage I have extracted at [1229] above, and consistently with the principles set out in Bodney v Bennell and Croft to which I have earlier referred. In the face of that determination, it is difficult to see how this aspect of the Yinhawangka Gobawarrah’s case could ever have succeeded. However, as I have found, it also fails on the accounts given by Mabel Tommy, Jambu Giggles and Muyit Smith, the principal sources of the Yinhawangka Gobawarrah applicant’s positive case.

16. While I accept Jones was a consent determination, and therefore more flexibility may have been applied to the establishment of the requirements in s 223 of the Native Title Act, the members of the Yinhawangka Gobawarrah claim group, as native title holders in Jones, are bound by that determination. Their present case seeks to depart from its premises in a fundamental way.

    ALTERNATIVELY, DO THE YINHAWANGKA PEOPLE HOLD NATIVE TITLE?

17. As will be apparent from my reasoning to this point, the answer to that question is: yes.

18. I accept that this is not a conclusion which will be welcomed by some Yinhawangka people; David Cox, Marlon Cooke and Brendon Cook being prime examples. My conclusions as a whole are also unlikely to satisfy the Yinhawangka Gobawarrah claimants, because they do not deliver the control over the overlap area which was sought by their separate application for a determination of native title.

19. Nor will the Court’s conclusions satisfy the Jurruru applicant and claim group, who had, as the Court’s reasons explain, a single minded perspective that the whole overlap area was Jurruru country which the Court has found was not borne out by persuasive evidence.

20. These are some of the consequences of a litigated rather than a negotiated outcome: the parties lose control over the final position.

    CONCLUDING REMARKS

21. The two native title applicants have each been partially successful. The separate questions will be answered to reflect this partial success. These answers indicate there should be two separate determinations of native title in respect of the overlap area, and there may be an area which should be determined as subject to both native titles – that is, as shared country.

22. The nature of the Court’s findings means that one of two courses of action must now be undertaken.

23. Either the parties can negotiate an outcome in relation to the overlap area which reflects the Court’s findings; or if they cannot, there will have to be a further trial so that the Court can make findings of fact about where exactly through the overlap area a line should be drawn to reflect the two separate native titles the Court has found exist in the overlap area. It would be a tragic and costly outcome indeed if the parties could not now resolve the matter, and the Court had to embark on such an exercise.

24. The parties will be given a reasonable amount of time to reflect on the Court’s reasons and to discuss options. The matter will be brought on for case management early in 2021. The Court, through Judicial Registrars, stands ready and willing to assist in early mediation if that is appropriate.

I certify that the preceding one thousand three hundred and seventeen (1317) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate:

Dated:       2 December 2020