Strickland on behalf of the Maduwongga Claim Group v State of Western Australia
[2023] FCA 270
•27 March 2023
FEDERAL COURT OF AUSTRALIA
Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270
SUMMARY
In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding Court's reasons and is not a complete statement of those reasons. The only authoritative statement is the published reasons for judgment, which will be available on the Court's website together with this summary.
Today the Court makes an order relating to two applications for the recognition of native title in the Goldfields region of Western Australia. The order is made in a case brought by Mrs Marjorie Strickland and Mrs Joyce Nudding. Mrs Strickland and Mrs Nudding are sisters, and together comprise what the Court calls the Maduwongga applicant. They say that their grandmother, whom at their request the Court calls KB, belonged to a group of people called the Maduwongga. The Maduwongga applicant asks the Court to determine that the descendants of KB hold native title rights and interests in relation to a claim area of more than 25,000 square kilometres. The area stretches from its south-western corner near Coolgardie to a north eastern boundary marked by the Edjudina Range.
In a different case brought in this Court another claim group, the Nyalpa Pirniku, are seeking their own native title determination. Part of the country to which they lay claim overlaps approximately the north-eastern third of the Maduwongga claim area. So there is a dispute between the Maduwongga applicant and the Nyalpa Pirniku about who has rights to this overlap area. In the present case, the Nyalpa Pirniku are represented by what the Court calls the NP respondent.
Two other respondents have been active in the case. One is the State of Western Australia. The other respondent represents a third Aboriginal claim group, the Marlinyu Ghoorlie. They also claim an area of country which overlaps the Maduwongga claim area, but in a different part to the Nyalpa Pirniku overlap. Where this summary talks about the overlap area, it means the overlap between the Maduwongga and Nyalpa Pirniku claim areas.
All three of the active respondents dispute the Maduwongga claim. They say, in effect, that there never was a Maduwongga group or 'tribe' which acknowledged and observed its own traditional laws and customs. They say that KB acknowledged and observed the laws and customs which prevailed in a large area that is called the Western Desert. The Nyalpa Pirniku claim native title rights and interests under Western Desert laws and customs.
To help resolve the dispute, the Court made orders for a separate question, that is, it posed a question for the Court to answer formally before the case as a whole is determined. The separate question is:
Did [KB] … hold rights and interests in those land and waters of the Maduwongga Application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of:
(1)the Western Desert; or
(2)a distinct land-holding group of which KB's descendants are the only identifiable surviving members?
It is not in dispute that KB did hold native title rights and interests to country in the overlap area. The dispute is essentially about which traditional laws and customs gave her those rights and interests. Was it the laws and customs of a society from the Western Desert? Or, was it laws and customs of an Aboriginal society called the Maduwongga?
The Court heard 8 days of evidence and a further two days of opening and closing submissions, where the barristers for the parties argued their cases. The Court travelled to Kalgoorlie and went out to sites in the overlap area, including Edjudina Gap and the ruins of the old Edjudina homestead. Brief hearings were conducted at those places and then the Court sat in the Kalgoorlie Town Hall. It heard from Mrs Strickland and Mrs Nudding and from various members of the Nyalpa Pirniku claim group, including Mr Hector O'Loughlin, Mr Ivan Forrest, Ms Cheryl Cotterill and Mr Elvis Stokes. The Court also heard from a Pilki initiated Law man (wati) and elder, Mr Daniel (Stevie) Sinclair. These people told the Court about many things, including: the meaning of the word 'Maduwongga'; where KB was born and where her country was; the connection of many other people to country in the overlap area; the language spoken in the overlap area; and tjukurrpa or the Dreaming. The Court is grateful to these witnesses for sharing their knowledge.
The Court also heard evidence from two expert witnesses. One was Dr Christine Mathieu, an anthropologist and ethnohistorian who was called by the Maduwongga applicant. The other was Dr John Morton, an anthropologist who was called by the NP respondent. The role of the expert witnesses was to help the Court to understand the evidence before it, including Aboriginal history, customs and laws. The Court does not have to agree with the expert witnesses. Their views are not more important than the evidence of Aboriginal people, just because they are expert witnesses. As explained in the Court's full reasons for the decision, generally the Court favoured the evidence given by Dr Morton over that of Dr Mathieu.
The parties also gave the Court a large number of documents to read and consider. These included notes and other documents prepared by 20th century ethnographers and anthropologists, including genealogy sheets (which are like family trees), journal extracts, and maps. The notes taken in the mid 20th century by the anthropologist Norman Tindale were especially important, because he met KB in 1939 and took down her words.
In the end, the Maduwongga applicant and the NP respondent had the job of convincing the Court to accept the cases they were each putting. That is, they each had a burden of proof. The Court understands that many people on all sides hold strong views about these matters. But in the end the Court can only act on the evidence put before it, as a court of law.
The Maduwongga applicant had to persuade the Court that there was a society in the Maduwongga claim area that was united in its common observance of a distinct body of traditional laws and customs. The Maduwongga applicant also had to persuade the Court that KB was a member of that society, that her descendants are its only members now, and that her rights to country in the overlap area came from those particular laws and customs. The onus was on the Maduwongga applicant to show, by evidence, that all of those things are more likely than not to be true.
On the other side, the NP respondent was claiming that, instead, it was the laws and customs of the Western Desert that were acknowledged and observed in the overlap area during KB's time. As has been said, the NP respondent (and the State) were putting the case that KB was a Western Desert person and that her rights and interests in the overlap area came from Western Desert laws and customs. So it was necessary for the NP respondent (and the State) to establish by evidence that those things were more likely than not to be true.
It has not been easy to make a decision about these things. That is mainly because, as in many native title cases, the parties and the Court have had to reconstruct what happened a long time ago, out of an incomplete historical record. This can make the burden of proof – whose job it is to prove what – especially important. At law, a case will fail if there is not enough evidence to show that it is more likely than not to be true.
The Court's full reasons for judgment explain why it answers the separate question in the way that it does. The reasons are long and cover a large number of factual disputes and a lot of evidence. This summary cannot set all of that out. But the main points which the Court has decided are as follows:
(1)Where KB is recorded as having used the term 'Maduwongga', or a derivative of that term, she was not referring to a 'tribe' or other society. She was more likely to be telling Tindale about the language or dialect she spoke, which is not necessarily the same thing. Language does not necessarily identify a land-holding group. The use of the name 'Maduwongga' to describe a 'tribe' or other society probably only started in 1994, after the introduction of the Native Title Act 1993 (Cth).
(2)KB and her parents were not born at Edjudina. It is not possible to say for certain where they were born, but it is likely that they came from spinifex country east of Laverton, outside the Maduwongga claim area. This by itself means that the Maduwongga case has not been made out. That is because for KB to have acquired rights in the overlap area under the laws and customs said to have been observed by the Maduwongga, she would need to have been born there, or at least her parents would have needed to be. Since the Court has found that she was not born at Edjudina, this means that she did not hold rights and interests in the overlap area under any Maduwongga laws and customs.
(3)Tindale's mapping of a Maduwongga tribe with its own territory was probably wrong. So it cannot be relied upon as evidence of the extent of any Maduwongga territory during KB's lifetime. This lack of evidence that there was a Maduwongga territory makes it less likely that there was a distinct Maduwongga society at that time.
(4)The Aboriginal language spoken by KB and her descendants was a Western Desert language. While it may have had its own particular features meaning it was a dialect, other people who spoke Western Desert languages could understand it. Also, as has been said, the speakers of the same language (or dialect) do not necessarily make up a land-holding group. Language is not a marker of any distinct Maduwongga society.
(5)In general, the evidence does not support any difference between laws and customs of a distinctively Maduwongga character, and laws and customs of the Western Desert. In reaching this conclusion, the Court considered ceremonial practices, initiation in the Law, tjukurrpa and responsibility for looking after places of significance.
(6)Importantly, the evidence does not establish there was ever any distinct body of Maduwongga laws and customs about rights and interests in land. The evidence given by Aboriginal people did not say much about those kinds of laws and customs at all. In the end it depended on the expert evidence of Dr Mathieu. The Court has found that her model of how rights and interests in land arose in the Maduwongga claim area is not convincing. The Court considered evidence about section systems, laws pertaining to marriage and the acquisition of rights and interests in land in reaching this conclusion. This conclusion also means that the Maduwongga case cannot succeed.
(7)Rather, the laws and customs acknowledged and observed in the overlap area during KB's time were the laws and customs of the Western Desert. That is because Wati Law and tjukurrpa were observed in that area, Western Desert language was spoken there, and there is ample evidence that Western Desert people had country in the area. The Court does not accept the argument that things like Wati Law and tjukurrpa are completely separate to laws and customs relating to rights and interests in land. Rather, their presence in the overlap area is a strong indication that Western Desert laws and customs were acknowledged there.
(8)Lastly, KB acknowledged and observed those Western Desert laws and customs. She was from the Western Desert, spoke a Western Desert language, and lived and travelled around the overlap area with other Western Desert people. She was able to claim rights and interests in relation to land in the overlap area because of the time she spent there.
As a result, the Court has answered the separate question by saying that KB had rights and interests in the land and waters of the overlap area under the laws and customs of the Western Desert, and not under the laws and customs of a distinct 'Maduwongga' society.
Some of the Court's findings may affect other claims that are not yet resolved. But the decision the Court has reached is not a decision about any of those other claims.
The Court understands that its decision will be welcomed by some but not by others. That is why it has done its best to explain its conclusions in the full reasons that will be published.
JUSTICE JACKSON
27 March 2023
FEDERAL COURT OF AUSTRALIA
Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270
File number: WAD 186 of 2017 Judgment of: JACKSON J Date of judgment: 27 March 2023 Catchwords: NATIVE TITLE - determination of separate question - rights and interests in lands and waters - overlapping claims - applicant sought determination on native title over land - respondents submitted no distinct land-holding group in the overlap area - whether ancestor of claim group was part of a Western Desert society or part of a distinct society- no distinct land-holding group existed at the relevant time - ancestor determined to be part of a Western Desert society Legislation: Evidence Act 1995 (Cth) ss 73, 91, 140
Native Title Act 1993 (Cth) ss 82, 86, 223
Federal Court Rules 2011 (Cth) r 23.13
Cases cited: AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268
Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1
Banjima People v State of Western Australia (No 2) [2013] FCA 868
Booth on behalf of the Gunaikurnai People Claim Group v State of Victoria (No 3) [2020] FCA 1143
Browne v Dunn (1893) 6 R 67
De Rose v State of South Australia [2002] FCA 1342
De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325
De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290
Dempsey on Behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528
Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510
Gill v Ethicon Sàrl (No 5) [2019] FCA 1905
Griffiths v Northern Territory of Australia [2007] FCAFC 178; (2007) 165 FCR 391
Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31
HG v The Queen (1999) 197 CLR 414
Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150
Jango v Northern Territory of Australia [2007] FCAFC 101; (2007) 159 FCR 531
Mabo v State of Queensland (No 2) (1992) 175 CLR 1
Mason v Tritton (1994) 34 NSWLR 572
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422
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; (2005) 145 FCR 442
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26
State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316
State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472
Western Australia v Commonwealth (1995) 183 CLR 373
Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351
Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 1057 Date of hearing: 7-17 December 2020, 3-4 March 2021 and 29-30 April 2021 Solicitor for the Applicant: Mr GM McIntyre SC counsel for Corser & Corser Lawyers Solicitor for the State of Western Australia: Ms GJ Ranson SC of the State Solicitors' Office Solicitor for the Nyalpa Pirniku Claim Group Respondents: Mr JL Edwards counsel for Native Title Services Goldfields Solicitor for the Marlinyu Ghoorlie Claim Group Respondents: Mr SC Blackshield (on 7-8 December 2020) and Mr MS Pudovskis counsel (on 9-11 December 2020) for Blackshield Lawyers ORDERS
WAD 186 of 2017 BETWEEN: MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING
Applicant
AND: STATE OF WESTERN AUSTRALIA
Respondent
COMMONWEALTH OF AUSTRALIA
Respondent
CENTRAL DESERT NATIVE TITLE SERVICES LTD
Respondent
(and others named in the Schedule)
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
27 MARCH 2023
THE COURT ORDERS THAT:
1.The separate question is answered as follows: KB (the grandmother of the applicant) held rights and interests in those land and waters of the application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of the Western Desert, and not under the normative system of a distinct land-holding group of which KB's descendants are the only identifiable surviving members.
2.The Nyalpa Pirniku respondent has liberty to apply in relation to costs until 4.00 pm AWST on 10 April 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Table of Contents
I. THE SEPARATE QUESTION
[1]
Some observations about the separate question
[9]
II. PRELIMINARY MATTERS
[19]
How 'Maduwongga' will be used in these reasons
[20]
Wongatha
[21]
Western Desert and the Western Desert Cultural Bloc
[25]
Terminology, spelling and names
[27]
III. THE PARTIES' CASES AND THE ISSUES ARISING
[31]
The Maduwongga applicant's case
[32]
Maduwongga laws and customs
[33]
Other matters said to distinguish the Maduwongga from Western Desert societies
[42]
The relevance of Western Desert societies, laws and customs
[45]
The respondents' cases
[50]
Whether there was a Maduwongga society
[51]
Western Desert laws and customs in the overlap area
[58]
The Maduwongga applicant's submissions in reply
[65]
IV. THE STRUCTURE OF THE REST OF THIS JUDGMENT
[67]
V. PRINCIPLES
[69]
Identifying a society
[70]
Migration
[73]
The relevance of cultural factors other than laws and customs
[74]
The asserted distinction between the ceremonial and ritual dimension and rights and interests in relation to land and waters
[79]
A society and a land-holding group are not necessarily the same
[88]
The approach to be taken to the evidence
[91]
Lay Aboriginal witnesses
[92]
Written records including ethnographic materials and expert evidence
[95]
The role of inferences
[99]
VI. THE WITNESSES
[102]
The lay witnesses
[102]
Anne Joyce Nudding
[105]
Marjorie May Strickland
[111]
Daniel Steven (Stevie) Sinclair
[118]
Hector O'Loughlin
[123]
Ivan Forrest
[124]
Cheryl Cotterill and Dora Cotterill
[125]
Elvis Stokes
[127]
The expert witnesses
[128]
Dr Christine Mathieu
[133]
Dr John Morton
[153]
VII. THE MADUWONGGA GROUP
[158]
The term 'Maduwongga'
[160]
The use of the term 'Maduwongga' in Tindale's materials
[167]
The Maduwongga applicant's evidence about the use of the term 'Maduwongga'
[181]
The evidence of other witnesses
[198]
Some observations about the Aboriginal evidence of a Maduwongga group
[209]
Evidence about the names of other groups
[213]
The group of people identified (or potentially identified) as Maduwongga
[223]
Johnny
[226]
KB
[240]
Minnie
[241]
Jimmy
[242]
Eva Quinn
[243]
Violet Quinn
[244]
Arthur Newland
[245]
Dolly Larrikin
[252]
Lena Judd
[253]
Teddy Forrest
[257]
Gertrude Morrison
[258]
Albert Newland
[259]
Joyce Nudding
[283]
Marjorie Strickland
[288]
Christine Newland
[295]
Stanley Forrest and May O'Brien
[296]
The life of KB
[297]
Why KB's birthplace matters
[298]
Lay evidence about KB's birthplace
[302]
The ethnographic records about where KB was born
[304]
Some observations on the ethnographic material
[309]
Dr Mathieu's interpretation of Tindale's materials about KB's birthplace
[318]
Dr Morton's interpretation of Tindale's materials about KB's birthplace
[350]
Resolving the evidence about KB's birthplace
[365]
Other biographical details about KB
[366]
Findings about the constitution of the Maduwongga over time
[377]
VIII. MADUWONGGA COUNTRY
[392]
Tindale's maps of Maduwongga country
[394]
The expert evidence about the location and extent of Maduwongga country
[397]
The discussion of Maduwongga country in Mathieu I
[398]
Morton I
[415]
Mathieu II
[418]
Morton II
[428]
The Expert Conference Report
[439]
The oral evidence of the experts about Maduwongga country
[440]
Observations about the expert evidence on mapping Maduwongga country
[452]
Lay Aboriginal evidence about Maduwongga country
[456]
The evidence adduced by the Maduwongga applicant
[456]
Joyce Nudding's evidence
[458]
Marjorie Strickland's evidence
[477]
Other evidence about Maduwongga country
[496]
Evidence of other persons' connections to 'Maduwongga country'
[509]
Observations about the lay evidence as to Maduwongga country
[524]
IX. MADUWONGGA LANGUAGE
[536]
Lay evidence about a Maduwongga language
[540]
Expert evidence about a Maduwongga language
[551]
Observations about the evidence concerning language
[562]
X. MADUWONGGA LAWS AND CUSTOMS
[567]
The distinctiveness of Maduwongga customs
[568]
Some broad evidence
[568]
Ritual and ceremonial practices
[585]
The evidence of Mrs Nudding
[586]
The evidence of Mrs Strickland
[599]
Other lay Aboriginal evidence about Maduwongga customs
[604]
Ethnographic and expert evidence about customs observed in the Maduwongga claim area
[611]
Observations on the evidence about ritual and ceremonial practices
[613]
Initiation in the Law
[614]
Tjukurrpa
[625]
Places of significance
[641]
Other spiritual beliefs
[657]
XI. LAWS AND CUSTOMS AS TO SECTIONS, MARRIAGE, DESCENT AND TRANSMISSION OF RIGHTS AND INTERESTS IN LAND
[664]
Section groups
[670]
Lay Aboriginal evidence about section systems
[674]
Expert evidence about section systems
[701]
Observations about the evidence concerning section groups
[735]
Laws pertaining to marriage
[743]
Lay Aboriginal evidence about marriage laws
[744]
Expert evidence about marriage and kinship organisation
[751]
Acquisition of rights and interests in country
[764]
Lay Aboriginal evidence about acquisition of rights and interests in land
[764]
Expert evidence about the acquisition of rights and interests in relation to land
[775]
Dr Mathieu's identification of territorial associations of marriage system
[776]
Consideration of Dr Mathieu's view as to territorial associations of marriage
[798]
Views of the experts as to dynamism of kinship systems
[801]
Dr Mathieu's consideration of Canegrass vocabulary
[805]
The tables of the kinship vocabularies
[825]
The conclusions that Dr Mathieu draws
[830]
Dr Morton's interpretation of the Canegrass vocabulary
[836]
Skewing in the Canegrass vocabulary
[840]
Conclusion on Maduwongga laws as to acquisition of rights to country
[845]
XII. WAS THERE A MADUWONGGA SOCIETY?
[846]
The term Maduwongga
[846]
What did KB mean when she said 'madu wongga'?
[847]
Dr Mathieu's opinion
[847]
Dr Morton's opinion
[854]
Dr Mathieu's response
[868]
Elkin's 'Mandjinda'
[875]
Dr Morton's conclusions
[884]
Conclusions
[886]
KB was not referring to a 'tribe' or other society
[887]
KB and her parents were not born at Edjudina
[893]
The 'Maduwongga' group was very small
[902]
Tindale's mapping was probably wrong
[903]
The evidence about language does not support the Maduwongga case
[912]
There is no evidence of distinctively Maduwongga laws and customs
[913]
No body of Maduwongga laws and customs in relation to land has been established
[918]
XIII. WERE WESTERN DESERT LAWS AND CUSTOMS OBSERVED IN THE OVERLAP AREA?
[926]
The Western Desert case
[926]
The relevant society for the purposes of the Western Desert case
[933]
Acquiring rights and interests under the multiple pathways model
[951]
Tjukurrpa
[955]
The asserted distinction between the ritual/ceremonial sphere and 'land tenure'
[962]
The evidence about the extent of Western Desert society
[977]
Aboriginal evidence
[980]
Ethnographic evidence
[990]
David McDonald
[990]
Daisy Bates
[991]
Anthropological evidence
[994]
Dr Morton's views
[994]
Dr Mathieu's opinions on the Western Desert case
[1002]
Dr Morton's reply
[1025]
Cross examination of Dr Mathieu
[1031]
Conclusions about the anthropological evidence
[1034]
The Maduwongga applicant's own evidence
[1036]
Whether KB came from the Western Desert
[1041]
Conclusions as to the Western Desert case
[1042]
XIV. THE ANSWER TO THE SEPARATE QUESTION
[1054]
ANNEXURE A
p 303
ANNEXURE B
p 304
ANNEXURE C
p 305
ANNEXURE D
p 306
ANNEXURE E
pp 307-311
REASONS FOR JUDGMENT
JACKSON J:
I. THE SEPARATE QUESTION
Marjorie Strickland and her sister, Joyce Nudding, are together the applicant in this native title claim. They contend that their grandmother, who at their request I will call KB, belonged to a group of people called the Maduwongga. On that basis, Mrs Strickland and Mrs Nudding seek a determination that they and others who are related to them hold native title rights and interests in relation to an area of land and waters in the Goldfields region of Western Australia. The area is approximately 25,473 km2, and stretches from its south‑western corner near Coolgardie, Western Australia, to a north eastern boundary marked by the Edjudina Range. The claim group is comprised of the descendants of KB, whose grandchildren include Mrs Strickland and Mrs Nudding.
In a different proceeding, WAD 91 of 2019, another claim group, the Nyalpa Pirniku (NP claim group), seek a native title determination in their favour in respect of country which, again in broad terms, sits mainly to the north-east of the Maduwongga claim area, but also overlaps with the north‑eastern third of that area. These reasons concern a separate question which is intended to determine a dispute between the Maduwongga applicant and the Nyalpa Pirniku respondent (NP respondent) which arises out of that overlap.
The question, which was posed in orders which Bromberg J made on 20 November 2019, is:
Did [KB] (the grandmother of the applicants in the Maduwongga Application [i.e. this proceeding, application WAD 186 of 2017]) hold rights and interests in those land and waters of the Maduwongga Application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of:
(1)the Western Desert; or
(2)a distinct land-holding group of which KB's descendants are the only identifiable surviving members?
The members of the NP claim group contend that they have rights and interests in relation to the NP claim area under the traditional laws and customs of the Western Desert. And they accept that KB held rights and interests in the overlap area. So the issue raised by the separate question is: under which traditional laws and customs did KB have those rights and interests? Since KB is the apical ancestor of the members of the Maduwongga claim group, the answer will have significant implications for their claim.
To put the question in its historical context, according to an estimate of KB's age given by the 20th century anthropologist Norman Tindale, KB was born in about 1880. She died in 1945. The Goldfields region began to experience European settlement in the 1890s and it is only from that time that there begin to be written records that could help identify the traditional laws and customs that were acknowledged and observed in the area. So because it focuses on KB, the question concerns the period of time from about 1890 until 1945.
It was common ground that in around 1892 to 1894, European settlement began to occur apace in the Goldfields, and that the laws and customs of the Aboriginal people who occupied that area just before that time may be taken to be the same as they were in 1829, when the British Crown asserted sovereignty over the area that is now Western Australia (see Western Australia v Commonwealth (1995) 183 CLR 373 at 429). That is supported by the opinion of the expert witnesses called in this case. I will call that later time of 1892 to 1894 (precision is unnecessary here) the time of effective sovereignty.
The parties who took an active role in relation to the separate question were the Maduwongga applicant, the NP respondent, the State of Western Australia and representatives of another Aboriginal claim group the Marlinyu Ghoorlie, whom I will call the MG respondent. That respondent in this proceeding is the applicant in a native title claim over an area which also overlaps with the Maduwongga claim area, but does not overlap with the NP claim area. The MG respondent took part on the basis that they have an interest in the answer to the separate question because, if it is answered unfavourably to the Maduwongga, that may have implications for the overlap between the Maduwongga and Marlinyu Ghoorlie claim areas.
For the following reasons, I have concluded that KB held rights and interests in relation to land and waters in the overlap area under the normative system of traditional laws and customs of the Western Desert, and not under the normative system of any distinct land-holding group of which KB's descendants are the only surviving members.
Some observations about the separate question
It is useful to make a few observations about the separate question at the outset. The first is that the question has been framed by reference to concepts that appear in the explication of the definitions of 'native title' and 'native title rights and interests' in s 223 of the Native Title Act 1993 (Cth) (NTA) which was given in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422. It is convenient to set out s 223(1) now:
The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
The explication of this given in Yorta Yorta related in particular to s 223(1)(a) and concerned, among other things, the concepts of a society, defined as a body of persons united by their acknowledgment and observance of a body of laws and customs, and of rights and interests in relation to lands and waters being possessed under those traditional laws and customs: see Yorta Yorta at [47], [49] (Gleeson CJ, Gummow, and Hayne JJ, McHugh and Callinan JJ agreeing). The separate question directs attention to those concepts, because it requires identification of which of two possible normative systems applied in the overlap area. It is common ground that the question requires KB to be placed in one of those systems.
However, it is not common ground that either of those systems actually existed. The respondents do not accept that during KB's time there was a distinctive society and system that could be designated as Maduwongga. And as will be seen, the Maduwongga applicant also sought to cast doubt over whether the existence of the relevant Western Desert society had been established.
While the separate question uses the term 'distinct land-holding group', rather than society, I proceed on the basis that whether the Maduwongga group is or is not distinct will depend on whether it constituted a society in the Yorta Yorta sense that was united by acknowledgment and observance of a body of laws and customs different to the body of laws and customs acknowledged and observed by the people of the Western Desert. By seeking a finding that they comprise a separate land-holding group, the Maduwongga are not saying that they were a defined group of people that held exclusive rights and interests in relation to particular country under a Western Desert normative system of broader application. They claim their own normative system.
The competing answer at (1) in the separate question was that contended for by all the respondents who took an active part in the issue. They contend that KB was not a member of any distinct Maduwongga society but was, rather, one of a number of persons who acknowledged a body of laws and observed a body of customs that were acknowledged and observed over a broader area of the Western Desert. No party suggested that KB acknowledged and observed laws and customs of both Maduwongga and Western Desert normative systems, or otherwise had some kind of dual identity or affiliation.
Second, as the discussion above suggests, the separate question can be read as implying that the issue is not whether KB held any native title rights and interests in the overlap area. And indeed, the parties to the proceeding who have participated in the determination of the separate question have not approached it on that basis. So what is at stake in the separate question is not whether KB's descendants, including Mrs Nudding and Mrs Strickland, hold any native title rights or interests in the overlap area. It is whether those people hold rights and interests to the exclusion of, or at least separably from, others who may claim under Western Desert laws, such as the members of the NP claim group.
Third, and that said, it must be recalled that a determination as to native title is a determination in rem that binds the whole world: Jango v Northern Territory of Australia [2007] FCAFC 101; (2007) 159 FCR 531 at [85]. So it is not enough that the parties to this proceeding do not contest that KB held native title rights and interests. The Court still needs to be satisfied of that on balance of probabilities, taking into account the nature of the cause of action and subject matter of the proceeding and the gravity of the matters alleged: Evidence Act 1995 (Cth) s 140(1); Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [768]. While the party with the onus of proof does not need to exclude or resolve all doubts, disconformities and possibilities, it must persuade the Court that the position for which it contends is more likely than not: Narrier v State of Western Australia [2016] FCA 1519 at [403].
Fourth, and on the subject of onus, the parties accepted that the onus is on the Maduwongga applicant to prove that the Maduwongga did constitute a distinct group holding native title rights and interests under a normative system of laws and customs that is to be distinguished from any system observed by the people of the Western Desert, and that the group included KB. Conversely, they also accepted that the onus was on the NP respondent to prove that KB in fact held native title rights and interests under a system of laws and customs of a broader Western Desert group. This is on the basis that it is a rule of evidence and of common sense that the burden of proof is on the party who asserts a fact, not the party who denies it: Drill at [789] citing Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 at [39]. That is not to say, of course, that the two matters are independent of each other. To the contrary, any increase in the probability that one of them is true necessarily reduces the probability that the other is.
Fifth, the separate question asks nothing about what has happened since KB's death, so there is no need for present purposes to determine whether any relevant laws and customs have continued to be observed since then or whether a continuous connection to country has been maintained. The separate question is not about ongoing acknowledgment and observance of laws and customs, or about ongoing connection to the land. Evidence about the circumstances after KB's death may, however, be relevant to inferences that need to be made about the position during her lifetime.
Finally, there was discussion in court between counsel for the parties and Bromberg J about the consequences if, contrary to the Maduwongga case, an affirmative answer is given to the first part of the separate question (at (1)). Senior counsel for the Maduwongga applicant confirmed to his Honour that if KB did hold rights and interests in the overlap area under the normative system of traditional laws and customs of the Western Desert, the Maduwongga application, that is this proceeding, should be dismissed. That was on the basis that an answer to that effect would mean that there was no separate land-holding group known as the Maduwongga. The State and the MG respondent confirmed at the same time that if that were the outcome, there should be no order as to the costs of the Maduwongga application (counsel for the NP respondent did not have instructions on the costs point at that time).
II. PRELIMINARY MATTERS
Before describing the parties' respective cases, it is convenient to comment on a few specific matters.
How 'Maduwongga' will be used in these reasons
The very existence of a people who can be identified as the Maduwongga is in issue in these proceedings. But it would be cumbersome to try to refer to the apical ancestor, KB, and her descendants in any other way. So I will generally use the term in these reasons to designate that group of people, that is, depending on context, one of the following: the present Maduwongga applicant; the present Maduwongga claim group; the ancestors, descent from whom the Maduwongga applicant says confers native title rights and interests in the Maduwongga claim area; and sometimes other people referred to in the evidence who may or may not be Maduwongga. So unless the context indicates otherwise (including at Section XII below), the use of the word 'Maduwongga' to designate a group of people in the course of considering and writing these reasons implies no concluded view about the issues in dispute. The same goes for the use of the word to designate other matters which are the subject of dispute, such the existence of Maduwongga laws and customs, a Maduwongga country or a Maduwongga language.
Wongatha
There was extensive reliance on evidence adduced in an earlier case, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31. (I will use 'Wongatha' (unitalicised) to refer to the proceeding as distinct from Wongatha to refer to the reported reasons for decision.) In Wongatha Lindgren J determined a number of claims to land in the Goldfields, including a claim by the Maduwongga. Mrs Strickland and Mrs Nudding both gave evidence in that proceeding. Pursuant to s 86(1)(a) of the NTA, several passages from their evidence and from other lay evidence adduced in Wongatha were admitted into evidence in this proceeding, by consent.
I will weigh that evidence on the common sense basis that I did not observe the witnesses give it and that, while it included cross examination, I have not been apprised of the precise matters that were in issue and to which that cross examination went. That is, the evidence is presented to me shorn of a great deal of context, and as a result a cautious approach must be taken to it. That does not, however, mean that it is without value; no party in this proceeding submitted that the questions before Lindgren J in Wongatha were so different from the separate question here so as to rob the evidence of any value in this proceeding.
Some of the evidence in Wongatha was from witnesses who have since passed away and so could not give evidence in this proceeding. Where a witness did give evidence in this proceeding, I will tend to give it greater weight on the basis that the parties here did at least have an opportunity to test it. But as will be seen, with the exception of Mrs Nudding and Mrs Strickland, the cross examination of witnesses and hence the ability to observe them giving evidence orally was limited, so for the most part the comparison is between the written evidence of a witness here and the transcript of the testimony in Wongatha.
The outcome in Wongatha was that Lindgren J determined that the Maduwongga applicant in that case had not established its claim. The respondents who took part in the separate question do not say that that determination precludes the Maduwongga claim at the threshold, although they did seek to make forensic use of the claim and outcome in Wongatha as well as what they say are five other previous applications that Mrs Strickland and/or Mrs Nudding have brought in relation to some or all of the same area of land. The State's opening submissions sought to make extensive use of the findings of Lindgren J in Wongatha. But, as the Maduwongga applicant pointed out, no order had been made under s 86(1)(c) of the NTA for those findings to be adopted in this proceeding, and s 91 of the Evidence Act is a broad restriction on the admissibility of findings of fact in other proceedings. While the State made brief reference to certain findings in Wongatha in its closing submissions, it did not dispute the basis of the Maduwongga applicant's objection and it made no application for s 86(1)(c) of the NTA to be applied here. While the NP respondent did make an application under that provision, ultimately the application was not pressed. In what follows I have made my own findings based on the evidence and submissions in this proceeding, and have placed no reliance on Lindgren J's findings of fact in Wongatha.
Western Desert and the Western Desert Cultural Bloc
Much of the debate between the parties was couched in terms of whether the overlap area fell within the 'Western Desert Cultural Bloc' (WDCB). That term was coined by the anthropologist Ronald Berndt in his seminal 1959 article 'The Concept of "the Tribe" in the Western Desert of Australia' (1959) 30 Oceania 81-107. For Berndt, it described a large cluster of peoples inhabiting the Western Desert who had similar or related laws and customs. The Western Desert is a vast area which extends from eastern and north-eastern Western Australia into western South Australia.
I will generally, but not assiduously, avoid the terminology of the Western Desert Cultural Bloc or WDCB. I do not consider it useful to debate over a mid‑20th century anthropological concept (see Narrier at [7]) and it is not the terminology used in the separate question. Where possible I will simply refer to peoples, laws and customs of the Western Desert. But this different terminology does not necessarily reflect disagreement with the substantive content of parties who spoke in terms of the WDCB.
Terminology, spelling and names
Words from Aboriginal languages will generally be italicised unless they are proper names used to designate individuals or groups. I will endeavour to use the spelling of the words that is given in the evidence adduced by the persons who speak (or claim to speak) the language. The spellings Walyen and Waljen were used interchangeably by the parties and in the lay evidence. Throughout these reasons the term Walyen will be used, following the practice of one of the expert witnesses, Dr John Morton.
I will generally refer to people by their surnames and title. Where people share the same surname, in order to avoid confusion I will generally simply refer to them by their full names without the title, although occasionally it will be preferable just to use first names to avoid unwieldy repetition. In none of this is any discourtesy or disrespect intended.
As far as the Court has been made aware, KB is the only deceased person whose name it is preferable not to use. If there are other deceased persons whom I have unknowingly named where I should not have, no offence is intended. Apart from one paragraph of a report of an expert witness, Dr Christine Mathieu, of March 2020, to which it is not necessary to refer, the Court has not been told that any of the evidence concerns matters that are gender restricted or subject to other sensitivities.
It will be necessary to use some terminology which is potentially offensive today, because it appears in the primary materials, by which I mean notes and other documents prepared by 20th century ethnographers and anthropologists such as Daisy Bates and Tindale. In doing so no disrespect or offence is intended.
III. THE PARTIES' CASES AND THE ISSUES ARISING
Each of the parties who took an active role in relation to the separate question filed a statement of facts and contentions (SOFAC) before the separate question was stated. But the focus provided by the separate question meant that the parties' contentions underwent some refinement, so it is appropriate to proceed largely by reference to the opening and closing submissions of the parties during that hearing. It is necessary to appreciate the way in which the parties ultimately put their cases: see AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [39] (Bennett J) and the authorities cited there. In any event, no party contended that there was any significant difference between those submissions and the SOFAC.
The Maduwongga applicant's case
The Maduwongga applicant's main contention is that KB held rights and interests in the land and waters within the Maduwongga claim area under a normative system of laws and customs relating to land tenure that was distinct from and antithetical to any normative system of laws and customs observed by the peoples of the Western Desert. It also contends that KB's descendants comprise the only identifiable surviving members of the group who hold rights and interests in the land and waters in the Maduwongga claim area.
Maduwongga laws and customs
According to the Maduwongga applicant's SOFAC, at effective sovereignty the claim area was occupied by a group of Aboriginal people who spoke the Maduwongga language and formed a 'socio-linguistic community'. This socio-linguistic community is said to have included the ancestors of Johnny, KB's father, and their descendants, including KB.
The group was held together, in accordance with a body of traditional laws and customs, by kinship ties established by descent and marriage. The Maduwongga applicant describes the ethno-historical expert evidence of Dr Christine Mathieu, on which it relies, as being to the effect that (Maduwongga applicant's SOFAC para 8):
Rule-based marriage relations, organised on the basis of an endogamous moiety system, structure a complex of hereditary social and cultural interdependence from which all economic and ceremonial rights and obligations to land are derived.
(It will be seen, however, that by the time of closing submissions the Maduwongga applicant sought to draw a sharp distinction between 'economic' rights and obligations and 'ceremonial' ones).
A moiety system exists when the society is divided into two groups. They can be vertical, determined by descent, or horizontal, breaking the society up into different, often alternating generations. It is an endogamous moiety system if people marry within their moiety. The Maduwongga applicant's SOFAC said that kinship, along with ecological knowledge of country obtained from ancestors, were the cultural foundations of land ownership under the body of laws and customs. By the time of closing submissions, the focus of the Maduwongga applicant's case was that the land tenure of members of the group was conferred under a system of laws and customs relating to birthplace, descent and marriage.
Specific laws and customs on which the Maduwongga applicant relies will be described in more detail below, but the following summary serves to highlight the main aspects:
(1)In the Maduwongga system of laws and customs, rights and interests in relation to the land and waters are obtained by descent (including child adoption) from an ancestor acknowledged to have been from that land and to have possessed rights and interests in relation to it.
(2)Members of the group have personal, family or district totems. However, this point did not really feature in the evidence.
(3)Male members of the group practise ritual initiation, although it would seem that the last initiated Maduwongga man was KB's son, Arthur Newland who died in 1987.
(4)Members of the group believe in the concept of tjukurrpa or Dreaming, and acknowledge and observe several Dreaming tracks that pass through the area. These are linked to the travels of ancestral beings and objects and have songs attached to them.
(5)Strangers must ask permission to have access to the land or must be accompanied by a person recognised as having rights or interests and knowledge of or authority in relation to the land.
(6)Members of the group have rights to hunt, gather, fish and take resources from the land and there are rules about the taking, preparation, use and sharing of those resources.
(7)There are laws and customs governing access to, protection of and responsibility for places of significance in the claim area, including behavioural requirements when approaching and entering those places. Rights in relation to ceremonial sites are, however, distinguished from rights and interests in relation to land. Initiation into knowledge about creation, songlines and stories gains ceremonial access to parts of country, but not access to hunting and resources without permission.
It is not immediately obvious how most of these matters serve to distinguish the Maduwongga normative system from the normative system observed in the Western Desert. But according to the Maduwongga applicant, there are two key points of distinction:
(1)In the Maduwongga system, rights to land are held on a communal basis arising out of marriages between individuals from contiguous estates and transmitted, as has been said, by descent, whereas in the Western Desert they are held on the basis of 'multiple pathways' concerning an individual's relationship to the land (which will be described below).
(2)In the Maduwongga system, there is no section system, whereas in the Western Desert social relations are governed by a four-section system.
Section systems are also referred to in the evidence and the anthropological literature variously as 'class', 'skin group' or 'skin' systems. In her first expert report filed on 8 November 2019 in this proceeding (Mathieu I), Dr Mathieu described a four‑section system as one in which (para 112):
people belong to one of four classes which dictates who they should and should not marry: section x can only marry section y, and section a must marry section b. Individuals inherit their section membership on account of their parents' own class membership. The four-class system creates generational divisions, as well as a division between parallel (Mother's Sister's children/Father's Brother's children) and cross‑cousins (Mother's Brother's children, Father's Sister's children).
The two key points of distinction on which the Maduwongga case relies are thus related, as the regulation of marriage relations is an important aspect of a section system (which can also be the basis of rules about other matters - see Section XI below). The respondents approached the case on the footing that these asserted features of the Maduwongga laws and customs would, if established, provide points of distinction between those laws and customs and those of the Western Desert normative system. However the respondents contended that the Maduwongga applicant failed to establish those features, and that this meant that their claim as a whole must fail.
The Maduwongga applicant sought to establish the existence of these key points of distinction mainly by means of expert evidence from Dr Mathieu. Dr Mathieu's opinion was to the effect that the territorial area of the Maduwongga is defined by a marriage system, in which at the time of effective sovereignty, the people between Edjudina and Coolgardie formed one 'marriage line' and were all relatives. In a concurrent expert evidence session Dr Mathieu described a marriage line as meaning that the people married between areas she had specified, to produce territorially contained marriage connections. Marriage classes corresponded to waterholes, implying a system of marriage exchange, based on territorial exogamy. According to a supplementary report of Dr Mathieu, filed on 11 March 2020 (Mathieu II), marriage exchange is an 'expression of reciprocity' (Mathieu II para 124). Over the course of generations, 'marriages between estate holders give individuals access to the entire aggregate [tribal] territory' which has implications for what Dr Mathieu calls primary and secondary rights (Mathieu II para 126). Marriage exchange rules thus determine who may marry whom and what rights and obligations, including in relation to land, are conferred as a result of those marriages.
The Maduwongga applicant placed considerable reliance on Dr Mathieu's interpretation of kinship terms that were collected at Canegrass, a location approximately one third of the way south of Menzies on the way to Kalgoorlie. They were collected by the journalist and (untrained) ethnographer Daisy Bates in the early 20th century. The vocabulary used in the area was, Dr Mathieu says, consistent with an endogamous moiety system and so distinct from a four-class skin section system. Territorial patterns of marriage exchange are also said to be associated with birthplaces in the Maduwongga claim area.
Other matters said to distinguish the Maduwongga from Western Desert societies
In its written opening submissions, the Maduwongga applicant contends that the following further matters support the claim that the Maduwongga comprised a distinct land-holding group identified with the Maduwongga claim area:
(1)Self-identification, that is, the Maduwongga applicant says that KB called herself 'Maduwongga'.
(2)Territorial identification, in that KB identified the boundaries of her traditional country as an area that lies beyond the boundaries of the 'Western Desert Cultural Bloc' (see Section VIII below) and which is bounded on all sides with significant physiographic (that is, geological and topographical) and environmental features. These include what is said to be a natural geographic boundary between Maduwongga country and the country identified with the tribe known as the Walyen. That boundary is said to follow Lake Raeside and the Edjudina Range. It is also said to be a region where the predominantly eucalyptus vegetation and permanent water sources contrast with the drier mulga vegetation to the east of the Edjudina Range.
(3)Birth and association with the area: the Maduwongga applicant contends that KB was born at Edjudina, as were both of her parents and it says that she lived in the area and gave birth to all her children within the area.
(4)Language, in that KB, the Maduwongga applicant says, spoke a Western Desert language (WDL) with a southern influence. It says that while this was mutually intelligible to the people at Mt Margaret and Laverton, who also spoke WDL, it was perceived by those people as 'different'.
(5)Ritual membership, with responsibility for conducting rituals within the claim area being demarcated between those connected to Maduwongga country and others.
In relation to the third of these, all parties placed considerable importance on their competing versions of the duration and nature of KB's association with the overlap area and in particular Edjudina. As can be seen from the map attached to these reasons as Annexure A, that is a place some 20 km south-west of the north-eastern boundary of the Maduwongga claim area, which coincides with the Edjudina Range (a larger map of the overlap area was in use at trial but is too large scale to reproduce usefully in these reasons). It is also within the NP claim area and so within the overlap area. So both the Maduwongga claim group and the NP claim group claim to hold native title rights and interests in relation to the area around Edjudina.
The Maduwongga applicant says that KB's association with the claim area and the other matters referred to above support the conclusion that KB was a member of the Maduwongga society, being a society united by its observance of the laws and customs summarised above, and was not a member of any Western Desert society.
The relevance of Western Desert societies, laws and customs
While the Maduwongga applicant acknowledges a relationship between the Maduwongga and peoples of the Western Desert, it says that the relationship was primarily ritual in nature and not related to land tenure. The Maduwongga applicant also submitted that the term 'Western Desert Cultural Bloc' does not describe any specific society, but is rather a term by which anthropologists designate a number of peoples who have more in common with each other culturally and linguistically than they do with other groups.
Nevertheless, the Maduwongga applicant does not contest the description given in the NP respondent's SOFAC of the multiple pathways by which a person or group in the Western Desert Cultural Bloc comes to have rights and interests in relation to lands and waters. The Maduwongga applicant describes those pathways as follows:
(a)birth in or long association with the area, or a related tjukurrpa track, by a person or that person's ancestor;
(b)long term residence in the area;
(c)biological or socially recognised descent from persons with a connection to the area at effective sovereignty or the early decades of the 20th century;
(d)death or burial of a close relative in the area;
(e)caring for the country over a long term; and
(f)ceremonial responsibility for the area.
The Maduwongga applicant accepts the multiple pathways model in so far as it describes laws and customs followed generally by occupants of the Western Desert at sovereignty. It also accepts that if the traditional land holding rights for the overlap area were conferred under Western Desert laws and customs at the time of effective sovereignty, then KB would have accrued land rights in the Edjudina area in accordance with those laws and customs by virtue of her long‑term association with and residence around Edjudina. But, the Maduwongga applicant says the NP respondent has failed to establish that the laws and customs governing the overlap area at effective sovereignty were Western Desert laws and customs. The Maduwongga applicant points out that only five of the persons identified as ancestors in the NP claim were born in the Maduwongga claim area. It says further that there is no evidence that any of the identified persons were associated with the overlap area prior to effective sovereignty.
The Maduwongga applicant accepts that tjukurrpa from the Western Desert pass over the Maduwongga claim area. But it seeks to draw a distinction between ceremonial and ritual knowledge and responsibilities connected to tjukurrpa, and rights to and interests in land, including the right to speak for country and to use resources. So, it contends, while there are watis (initiated men) from the NP claim group who have ceremonial responsibility for sites within the overlap area, and there are presently no watis in the Maduwongga claim group, that does not correlate with members of the NP claim group having rights to and interests in land in the overlap area.
It is worth noting at this point that while the Maduwongga applicant relies on aspects of the evidence of Mrs Strickland and Mrs Nudding, as well as the evidence of a wati of the Pilki people, Daniel (Stevie) Sinclair, in large part the propositions above, particularly with regard to Maduwongga laws and customs, depend on the expert evidence of Dr Mathieu.
The respondents' cases
There was no appreciable difference between the positions taken by the three respondents who took part in the separate question, that is the State, the NP respondent and the MG respondent. They were at one in saying that the Maduwongga applicant had not established the existence of any distinct Maduwongga society during KB's lifetime or at any other time. The NP respondent expressly adopted the State's submissions, as well as the MG respondent's submissions. The MG respondent largely adopted both the State's and the NP respondent's submissions. And the State adopted the NP respondent's and the MG respondent's submissions. So it is convenient to describe the respondents' cases together.
Whether there was a Maduwongga society
The State submits that the Maduwongga applicant's position runs counter to 'the vast majority' of Aboriginal evidence and anthropological and other expert evidence. It contends in particular that the views of the anthropological expert on whose evidence the NP respondent relies, Dr Morton, are to be preferred to those of Dr Mathieu. The State submits that Dr Mathieu's model of a distinct Maduwongga group, based on her interpretation of genealogical terms so as to construct a model of marriage relationships, is wrong. According to the State, Dr Mathieu has deduced the model (on an admittedly preliminary basis) based on limited and selective material that, in any event, does not support it. She is not a linguist and the data collected by Bates on which she has based her model is unreliable. It is likely that at least parts of it, which Dr Mathieu characterises as evidence of a distinctive Maduwongga model of marriage and kinship, in fact comes from WDL speakers. The State submits that Dr Mathieu's marriage line is incompatible with its apparent source in the writings of Bates. It is incompatible with evidence of how people said to belong to the Maduwongga actually married, including the evidence of Mrs Strickland and Mrs Nudding themselves. It is compatible with a skin or section system operating in the overlap area, including at Edjudina.
On the subject of KB's origins, the State's position is that she came originally from 'spinifex' country to the east of the overlap area; likely somewhere to the east of Laverton. The State says that KB and her family may well have obtained rights in the country around Edjudina, but that she did so under Western Desert laws and customs. The State agrees with the narrative given by Dr Morton, of KB and her family as Western Desert people who migrated into the overlap area in the late 19th century. It submits that Dr Mathieu's reliance on the material from Tindale's archives is narrow and selective, and when it is considered in the broader context of other material in the archive it does not support the claim that KB (and her father Johnny) was born at Edjudina. The MG respondent also made several submissions to the effect that some of Dr Mathieu's opinions were at odds with a common sense reading of Tindale's materials.
Once again, these submissions will be considered below in the context of all the evidence. The evidence includes the only records of the words of KB herself, being notes made by Tindale, or others working with him, of things she said in May 1939. That includes a statement to Tindale that in her country there was no four class system. The State says that the best explanation for this is that she is referring to the country she originally came from, where the section system did not reach until later. Both the State and the NP respondent place considerable weight on a journal entry by Tindale to the effect that the Maduwongga originally came from spinifex country to the east.
According to the respondents, the Maduwongga case relies heavily on Tindale's identification of a Maduwongga 'tribe'. The State submits, unequivocally, that Mrs Strickland first learned of 'Maduwongga' from Tindale. The MG respondent submits that Dr Mathieu relies heavily on the fact of Tindale having published a map in 1974 showing a Maduwongga territory, and contends that this reliance is misplaced. The State says that Tindale's designation of a separate Maduwongga group was wrong, being contrary to other 20th century and contemporary anthropology, his own field data, and the Aboriginal evidence. It is generally acknowledged in Australian anthropology that Tindale's tribal model is deficient in many respects and is not properly applicable in the Western Desert. Tindale is the only anthropologist to have identified the Maduwongga as a group, concept or term in or around the overlap area and, according to the State, this is not supported by his primary ethnographic data. The State points, too, to what it says is the ubiquity of the term, and similar terms, in the WDCB, with the word 'madu' simply being used in parts of the WDCB to refer to an Aboriginal person, rather than designating a land-holding group or tribe.
As to other points relied on by the Maduwongga applicant, the State says:
(1)KB and her descendants were and are WDL speakers whose asserted laws and customs are recognisably laws and customs of the Western Desert. The State says that while Mrs Strickland and Mrs Nudding asserted that their ancestors spoke a language called Maduwongga, all the evidence is to the contrary and the few remaining purported Maduwongga words that have been identified are in fact WDL words. In any event, within the Western Desert, linguistic groups are not the same as land-holding units. The MG respondent supported these contentions and said that if there was a distinct group that occupied the overlap area that spoke a WDL dialect, it is likely that the group observed Western Desert laws and customs.
(2)The State relies on evidence of several Aboriginal witnesses in Wongatha, including KB's now deceased grandson Albert Newland (whose relationship to KB the Maduwongga applicant now disputes) and others, who were unaware of a Maduwongga group.
The respondents also say that the case that Mrs Strickland and Mrs Nudding presented in Wongatha was that their claim group adhered to laws and customs of the Western Desert, which is inconsistent with the position they now advance on the separate question. The State refers to a number of matters where, it says, Mrs Strickland and Mrs Nudding gave evidence in Wongatha that contradicts the position the Maduwongga applicant now takes. Those instances will be considered in the course of the analysis of the evidence below.
The Maduwongga applicant says that this characterisation of the position Mrs Nudding and Mrs Strickland took in Wongatha is 'not entirely accurate' but does concede that in Wongatha they did submit that the relevant society under which they received rights and interests in land was the society of the Western Desert. They seek to explain that by saying that it was based on the view of the anthropologist they had retained at the time, Dr Edward McDonald, and that Dr Mathieu has since reached a different view.
Western Desert laws and customs in the overlap area
According to the State, the ethnographic and Aboriginal evidence demonstrates that the geographical area covered by Western Desert laws and customs includes all of the overlap area, which was and is occupied by Western Desert people. The State sets out 'ethnographic' sources, being late 19th century to mid‑20th century accounts by lay and amateur observers and by professional anthropologists which, the State says, establish that the overlap area lay within the area of the WDCB. The State also points to the evidence in the separate question of several members of the NP claim group. The NP respondent supplements this by references to evidence from Aboriginal people in this proceeding and in Wongatha. I will leave a more detailed description of this aspect of the cases of the State and the NP respondent until Section XIII below, when I come to consider whether KB held rights and interests in relation to the overlap area under the traditional laws and customs of the Western Desert.
The NP respondent acknowledges that KB and her descendants possess rights and interests in the NP claim area, including the overlap area. But it says that members of its claim group had and have close associations with the overlap area. The NP respondent says that there is no basis on which the Maduwongga can assert exclusive rights and interests in the overlap area. Instead, they are (or should be) part of the larger NP claim group, which in turn is a subset of the broader Western Desert peoples.
The NP respondent submits that there can be different kinds of land-holding groups (a term used in the separate question) defined by different kinds of rights and interests in land; for example a right to speak for country or to be asked about country, as distinguished from rights to use country. It contends that the people of the Western Desert do comprise a society, in the sense of the term used in Yorta Yorta, that is, a group united by observance of a normative system of laws and customs. But within that society there can be land-holding groups being groups of persons who together have rights and interests in relation to an area of land (not the entire Western Desert). Members of the NP respondent refer to themselves as Wangkayi, being Western Desert people associated with the south-western part of the Western Desert, although not all Wangkayi are members of the NP claim group.
The NP respondent made two specific submissions that went beyond the submissions put by the State. The first is as to the significance of the association between the overlap area and Western Desert laws and customs concerning tjukurrpa and related ceremonies and sites. This, the NP respondent submits, is a compelling factor in favour of finding that the overlap area was associated with Western Desert laws and customs during KB's lifetime and that she held rights and interests in the overlap area under those laws and customs. The State's submissions and the NP respondent's submissions placed some emphasis on tjukurrpa as the foundation of those laws and customs. And according to the State, tjukurrpa and watis are key indicia of Western Desert laws and customs.
The NP respondent's submissions supplement this by addressing the Maduwongga applicant's contention that, while Western Desert 'Law business' and rituals are associated with the Maduwongga claim area, those ritual connections do not confer or come with rights to speak for country. The NP respondent accepts that wati who hold tjukurrpa associated with the overlap area and responsibility for related sites in the area may not have the right to speak for the area. But, the NP respondent says, the fact that wati from places as far away as Tjutjuntjarra (some 550 km north and east of Kalgoorlie, on the edge of the Great Victoria Desert Nature Reserve) and Warburton (some 700 km north east of Kalgoorlie) hold tjukurrpa associated with the overlap area is a strong indicator that the overlap area is associated with Western Desert laws and customs. For reasons that will be developed below, the NP respondent says that this is in the regional nature of the laws and customs relating to tjukurrpa and the ceremonies conducted in relation to it.
The other main additional submission that the NP respondent makes concerns the skin or section systems. For reasons that will, once again, be set out in detail below, the NP respondent contends that there were different section systems in place throughout Western Australia, and in the overlap area that had a dynamic history. That is, the areas within which section systems generally were observed were moving and changing, as were the areas covered by specific section systems. Also, the systems themselves were changing as they met with each other and people intermarried.
The NP respondent characterises the expert evidence about section names in the overlap area around 1910 (when, according to Tindale's estimate, KB would have been around 30 years old) as showing a mixture of two kinds of section system as well as the endogamous moiety system. According to the NP respondent, this evidence provides no support for an opinion expressed by Dr Mathieu that although section names were in use around the Edjudina area, this was solely for the purpose of external relations and did not regulate internal relations. The NP respondent submits that the presence or absence of section systems does not distinguish KB or members of her family from other Aboriginal people who were present in the overlap area during her lifetime.
The Maduwongga applicant's submissions in reply
In closing submissions filed in reply, the Maduwongga applicant submitted that the NP respondent had not established on the balance of probabilities that Western Desert laws and customs were observed in the overlap area during KB's lifetime. It pointed to different ways in which the respondents, and Dr Morton, had identified the society out of which the allegedly relevant laws and customs arise, and which they define, as explained in Yorta Yorta at [49]‑[50]. The Maduwongga applicant submits that neither dialect nor the presence of a section system permit the identification of a single society across the Western Desert.
The Maduwongga applicant also submits that the information available as to ties between people in the overlap area and people in the rest of the NP claim area at the time of effective sovereignty is limited, and insufficient to discharge the NP respondent's burden of proof on this point. It also says, as I have noted earlier, that to the extent that there were ties, they were of a ritual or ceremonial nature only and did not pertain to rights and interests in land.
IV. THE STRUCTURE OF THE REST OF THIS JUDGMENT
After considering the principles of law that apply to this matter, and making some general observations about the witnesses, these reasons address the issues that arise from the parties' contentions summarised above, in the following order:
(1)Section VII: The Maduwongga group. This will consider whether there was during KB's lifetime, an identifiable group of people called the Maduwongga. That question encompasses whether there were people who self-identified as such and whether other Aboriginal persons recognised the existence of the Maduwongga. That will require consideration of the significance of the first recorded use of the term in the context of the present matters by KB in 1939. It will address the evidence as to the composition of the group during KB's lifetime. Biographical sketches of its members will be given, along with an examination of some points of contention. It will be in this part of the judgment that the evidence about KB's biographical details and her own words will be considered, in particular the important question of where she was born. That is because the information that Tindale gathered about those matters substantially informed his view, and later that of Dr Mathieu. At this point I will also consider the respondents' arguments as to the size of the Maduwongga group in KB's time and the relevance of that.
(2)Section VIII: Maduwongga country. This section considers Tindale's mapping of the Maduwongga 'tribal' area in 1940 and 1974 and discrepancies between his maps and the data he took from his Aboriginal informants in 1939 and 1966. It canvasses the significant controversy on that subject which developed between the expert witnesses, and other ethnographic materials from the early 20th century on which the experts rely. It considers the significance of the physical and ecological features of the claim area that are said to demarcate it from other areas, including the Edjudina Range, which is said to form a natural boundary between the Maduwongga tribal territory and that of the Walyen. It also canvasses the Aboriginal evidence about KB's country and that of her descendants, as well as the association of Wangkayi or Walyen people with the overlap area.
(3)Section IX: Maduwongga language. This section concerns whether the dialect spoken by KB and her descendants serves as a marker of a society distinct from that of the Western Desert. It also canvasses the expert evidence about whether a distinct dialect identifies a distinct land-holding group.
(4)Section X: Maduwongga laws and customs. This will examine the lay and expert evidence about the existence and content of laws and customs said to be observed in the claim area by the Maduwongga, other than laws and customs to which I will give the broad description of kinship. The kinship laws not covered in this section deal with subjects including section systems and rules as to marriage. On the Maduwongga applicant's case, those laws relate directly to the ultimate issue of rights and interests in relation to land and waters. They are therefore crucial to the Maduwongga applicant's case, so they will be given their own section, following this one. This section however, will address the broad topic of differences between Maduwongga customs and those of the Wangkayi or Walyen people, as well as a number of specific topics: ritual and ceremonial practices; initiation in the Law; the role of tjukurrpa in Maduwongga laws and customs; laws and customs governing protection of and responsibility for places of significance; and spiritual beliefs. These topics are all more or less interrelated and are divided up this way chiefly for convenience of exposition. Some of these topics were said by the Maduwongga applicant to engage the distinction between ritual and ceremonial aspects of those places and rights and interests in relation to the land.
(5)Section XI: Laws and customs as to sections, marriage, descent and transmission of rights and interests in land. As just mentioned, the topic of the laws and customs said to be observed in the Maduwongga claim area as to kinship and the acquisition and transmission of rights and interests in relation to land by means of such laws and customs, has its own section because of the importance it assumed in the Maduwongga case. It will include consideration of the evidence about the presence or absence, and significance, of a sectional classification system in the claim area. And it will focus, in particular, on Dr Mathieu's evolving model of rights and interests in relation to land being transmitted and acquired by means of a 'closed connubium' in which endogamous marriage rules and related acquisition of 'estates' by descent are said to have resulted in 'primary' land rights moving and staying within the asserted Maduwongga group.
(6)Section XII: Was there a Maduwongga society? Drawing on the conclusions reached in previous sections, I will make findings about whether there was, during KB's lifetime, a Maduwongga society, in the Yorta Yorta sense of a body of persons united in and by its acknowledgment and observance of a body of laws and customs, where those laws and customs were not the laws or customs of the Western Desert. This section of the judgment will explain why an affirmative answer cannot be given to the issue at the heart of the second part of the separate question, as to whether KB held rights and interests in the overlap area under the normative system of traditional laws and customs of such a distinct land-holding group.
(7)Section XIII: Were Western Desert laws and customs observed in the overlap area? By this point conclusions will have been reached about the existence of the Maduwongga as a distinct society, but it will then be necessary to address the other aspect of the separate question, namely whether KB held rights and interests in the overlap area under the normative system of traditional laws and customs of the Western Desert. This section will address the evidence, both lay and expert, as to the extent that laws and customs of the Western Desert were observed in the Maduwongga claim area. That will encompass:
(a)the extent to which it is necessary, for the purposes of determining the separate question, to identify a specific society that observed those relevant laws and customs in the Maduwongga claim area, and if it is necessary, how that society should be identified;
(b)the 'multiple pathways' model for the acquisition of land rights in the Western Desert';
(c)the significance of tjukurrpa, including the point of contention between the Maduwongga applicant and the respondents as to whether there is a meaningful distinction between the ceremonial and ritual aspects of tjukurrpa and its role (if any) in relation to rights and interests relating to land or waters;
(d)the ethnographic and anthropological evidence as to whether during KB's lifetime Western Desert laws and customs were acknowledged and observed in the overlap area; and
(e)where KB came from, that is, what the evidence reveals about where she was born and when and how she came to be associated with the overlap area.
(8)Section XIV: The answer to the separate question. This summarises the outcome by reference to the separate question.
It will become apparent to anyone charged with the task of reading these long reasons that the matters canvassed in Sections VII to XI are interrelated and interdependent, meaning it is necessary to defer making firm findings about the key issues until it is possible to consider them all together, in Section XII. That will not, however, deter me from making observations about the evidence along the way.
V. PRINCIPLES
It is convenient to outline some of the established principles in relation to the identification of a distinct society united by common acknowledgement and observance of a normative body of laws and customs, as well as a few other evidentiary matters.
Identifying a society
In Yorta Yorta at [49]‑[50] Gleeson CJ, Gummow and Hayne JJ confirmed the central relationship between a body of laws and customs and the identification, as a society, of the group of persons who observe and acknowledge that body. At [49] their Honours said: 'Law and custom arise out of and, in important respects, go to define a particular society. In this context, "society'' is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs'. Their Honours footnoted that observation with the following (emphasis added): 'We choose the word "society" rather than "community" to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group'.
That does not require a technical approach. In Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 at [78] the Full Court said:
The concept of a 'society' in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is 'a body of people forming a community or living under the same government' - Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as 'societies'. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes.
The question posed by s 223(1)(b) of the NTA is whether Aboriginal people have a connection to the claim area by the traditional laws and customs referred to in s 223(1)(a). So even if they have ceased to comply with the laws and customs, for example if they no longer perform ceremonial responsibilities in relation to an area, the question would be whether, by those laws and customs, that means that they have ceased to have responsibilities (or rights and interests) in relation to the area: see De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325 at [313]‑[314]; De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 at [63]‑[64] (De Rose (No 2)); State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [64] (Ward HC).
Migration
Population shifts, in the sense of documented shifts of groups of persons into a claim area after sovereignty, do not necessarily lead to the conclusion that those persons or their descendants do not hold rights and interests in relation to the claim area under the normative system of traditional laws and customs that operated at sovereignty in the claim area. If the laws and customs of the Western Desert were observed in the claim area and provide for the acquisition of rights and interests by newcomers, not necessarily genealogically related to the inhabitants at sovereignty, those newcomers may still hold the rights and interests under the traditional laws and customs, if they have acquired those interests in a way acknowledged by those laws and customs: see De Rose at [220]‑[268].
The relevance of cultural factors other than laws and customs
While the existence of a commonly observed body of laws and customs is central to the identification of the relevant society, it is not necessarily the only factor to which regard must be had. In Yorta Yorta Gleeson CJ, Gummow and Hayne JJ did not say that common observance of a body of laws and customs is the sole determinant of the existence of an identifiable society. They said it defines a society 'in important respects'. It is open to draw relevant inferences from evidence as to factors not directly linked to the existence and observance of laws and customs, such as language, self-identification and identification with a particular territory.
The other basis of the opinions expressed on the point in Mathieu I is the view that the Maduwongga had an endogamous moiety system which contrasted with the section system of the Western Desert. Those matters have been canvassed extensively in Section XI above. There is no cogent evidence that KB and her family observed an endogamous moiety system. And there is cogent evidence that section systems were in place at Edjudina during KB's time. I therefore disagree with Dr Mathieu's characterisation of the reasons elaborated in her earlier report as 'compelling'.
In Mathieu II, Dr Mathieu goes on to consider the question from the perspective of whether KB's connection to the overlap area derives from Western Desert laws and customs. She considers the self-identification of Mrs Nudding and Mrs Strickland as not the same people as their neighbours in the NP claim group, and not the same as other nearby peoples. She finds corroboration for this in the linguistic data and in Bates's and Tindale's identification of peoples who were endogamous and had no totem or four section system. However those matters do not add to the less than compelling basis for the views on this point in Mathieu I.
Dr Mathieu then goes on to discuss problems with delineating the WDCB. The discussion is at a high level of generality. As Dr Morton notes in Morton II, despite the question posed in this part of Mathieu II, it hardly discusses KB at all. It surveys the findings of Bates and of various anthropologists. It depicts the Western Desert as a collection of small scale societies comprised of independent families who travel across vast expanses of land and sometimes join with other groups, including for ceremonies, and then move on. This, Dr Mathieu says, is in sharp contrast to the information that Bates and other observers obtained from people who claimed territories outside the Western Desert, including the Maduwongga. She does not explain or justify this contrast and it is not clear that she returns to do so in any detail in Section Three of Mathieu II, as she says she will.
Dr Mathieu introduces the supposed distinction between economic rights to land - the right to be asked before others may enter country and thus hunt and gather there - and ritual responsibilities. She engages in a survey of linguistic differences, and their significance, among WDL speakers, saying that 'in the Desert, language at once unifies and differentiates people' (Mathieu II para 46). She mentions again the now discarded position of the Maduwongga applicant that Arthur Newland, Eva Forrest, Violet Quinn and Lena Judd spoke a language that was not intelligible to the Walyen or to Joyce Nudding and Marjorie Strickland. She discusses contrasting views of anthropologists as to whether movements of people, presumably those documented from the time of the gold rush, were not migration but merely the usual practices of Desert people to move over large areas to forage. Dr Mathieu expresses a preference for that view. She speaks of a contrast between land tenure as a 'system of boundaries' and land tenure as a 'system of frontiers' (Mathieu II para 57-58).
It is difficult to extract from this highly discursive and general discussion anything that bears directly on the question at hand. In a purportedly conclusory section of Mathieu II, Dr Mathieu examines Dr Morton's opinion about what is the relevant society. She seems to suggest that his identification of the society as a zone of intensive social interaction at the south-western Western Desert and its margins is intended to deal with the question of why, if the entire Western Desert is the society, all people who can claim rights and interests under the Western Desert normative system were not part of the Wongatha claim. Dr Mathieu considers Dr Morton's views on the point to be unsatisfactory because they do not say why the overlap area, west of the Edjudina Range, should be more relevant to the NP claim than the region of Southern Cross or the WDCB in its entirety.
Dr Mathieu identifies the following problems which remain (Mathieu II para 69):
1.The absence of academic consensus on what constitutes the WDCB and where its external boundaries lie seriously limits its analytical value. Is the WDCB defined by linguistics, kinship, ritual initiation, religious beliefs, customs, geographical environment-either, some, or all of the above?
2.The WDCB is not an Aboriginal construct, it is an analytical tool, which insofar as it seeks to understand commonalities, is not the most useful model with which to identify the socio-territorial boundaries found within the WDCB and those outside of it.
3.The WDCB is best understood as a cultural sphere, which is to say, a zone of cultural influence. Accordingly, at the margins of WDCB and beyond, aspects of Desert culture may be found among people who may not identify as 'Desert people'. The people of Southern Cross, for example, once observed the same male initiation rites as the people of Jigalong but people in Jigalong consider them Noongar, not Desert people.
4.The totemic principles guiding the laws and customs of the WDCB are not exclusive to the WDCB, they guide laws and customs over the Australian continent.
5.The laws and customs of the WDCB are not homogenous because a common cultural principle cannot be equated to a single body of laws and customs. At least two normative systems may be invoked: a frontier and boundary system, and there are many other expressions of customs and laws to be found in association with different localities, including different stories, artistic representations, ritual objects and so forth - whose nuances are meaningful to the people who hold them.
With respect, much of this may well have merit, at the high level of generality in which it is expressed. So too one may accept many of the 13 'general principles that identify the Desert people and Desert societies' which follows the above excerpt in Dr Mathieu's report. It is not necessary to set them out. Neither they nor anything else in this section of Mathieu II provides a clear answer to the question which serves as the main heading to the section, namely whether KB held rights and interests in the overlap area under the normative system of traditional laws and customs of the Western Desert.
It would appear that Dr Mathieu's answer to that question is 'no', because she does not consider that there is the necessary consistency and coherence of laws and customs within the broadly dispersed peoples of the Western Desert for it to constitute a Yorta Yorta society. But her broad survey does not displace the specific submissions and specific evidence referred to above, which establish that there was a normative system of laws and customs of the Western Desert, and which stipulate what its contents were for the purposes of the separate question. It provides no basis for the Court to discount Dr Morton's expert opinion that differences in rules about land tenure within the Western Desert are 'not describing radically different systems, but "transformations" within a single, wide-ranging system' (Morton I para 121). And it says little or nothing about any specific evidence as to whether KB can be inferred to have acknowledged or observed those laws and customs.
Dr Morton responds to Dr Mathieu's views on these matters in Morton II. But apart from dealing with a specific comment about KB's feelings about 'the Desert people' which is not relevant to this proceeding, Dr Morton finds little to say about this section of Mathieu II. That is because on his reading of it, it does not perform the task of showing why Western Desert laws did not apply to the Maduwongga claim area and KB. While I would put the onus of proof the other way around, I agree with Dr Morton's overall assessment of this part of Mathieu II. It simply does not answer the question it poses.
Section Two of Mathieu II then goes on to address the question of whether KB and the region of Edjudina should be included in the NP claim. While this question is not directly relevant to the separate question, it engages issues that do bear on the question that is relevant, being the first limb of the separate question. So I will try to summarise what Dr Mathieu says in Section Two.
She steps through 13 propositions Dr Morton gave in Morton I which summarise his opinion. Again, it is not necessary to set them out (although four of them are quoted at [961] above in connection with tjukurrpa). Dr Mathieu says it is difficult to justify Dr Morton's 'categorical statement that the NPC falls entirely within the WDCB since Bates, Berndt, and Tindale exclude Edjudina from its geographical boundaries' (Mathieu II para 73). However she largely agrees with Dr Morton's propositions that describe the content of the Western Desert normative system. But she says she cannot agree with his inclusion of Edjudina in the NP claim. Apart from the reasons already canvassed, she goes on to give further reasons for her disagreement.
Dr Mathieu finds it highly significant that only one person named in the NP claim was born in Edjudina before the 1892 gold rush. According to Dr Mathieu, that person is KB; I have already found that she was not born in Edjudina. That does away with the contrast Dr Mathieu seeks to draw between her and the other named ancestors in the NP claim. It does not, of course, absolve the NP respondent of the need to discharge its own burden of proof, but it does dispense with a foundational proposition for Dr Mathieu's critique - that KB was born at Edjudina. Dr Mathieu goes further, however, and characterises Tindale's Walyen informant Yordy as the only exception to her assertion that none of applicants named in the NP claim or their predecessors appear to hold traditional rights to Edjudina.
Dr Mathieu goes on to draw a contrast between KB's predecessors and descendants, who she says are not associated with anywhere east of the Edjudina Range, and the NP claim group members and their predecessors, who only have 'residential associations beginning from the 1920s' (Mathieu II para 81). She says that this 'surely indicates two distinct social fields' (para 81). However for the reasons given this contrast breaks down. While the residential association may have commenced earlier in the case of Johnny and KB, they too had moved into the area.
Dr Mathieu also relies on things apparently said to her by Mrs Nudding, Mrs Strickland and Stevie Sinclair, but my findings in this matter are based on the evidence those persons gave directly, not paraphrased hearsay from Dr Mathieu.
Dr Mathieu also mounts a defence of Tindale's mapping of Maduwongga country which has been considered in Section VIII above. In that part of Mathieu II, she returns to the subject of the boundaries of the WDCB. She says, 'Berndt did not contest the boundary Tindale drew between the Maduwongga and their Western Desert Walyen neighbours. Nor did he underestimate its significance. In fact, he set the limits of the WDCB at this precise boundary' (Mathieu II para 91).
In Morton II, Dr Morton says he is unable to locate the source of that statement, which Dr Mathieu does not reference. He annexes various maps that the Berndts published at different times, none of which appear to delineate a boundary of the WDCB between the Walyen and Maduwongga tribes. However, Dr Morton appears not to have recalled the map from Western Australia: An atlas of human endeavour - 1829-1879. While that map does not label the WDCB as such, that is what it appears to show, with 'Waljen' within that bloc and 'Maduwongga' on the other side of the boundary. In any event, Dr Morton expresses the opinion that the other maps prepared by the Berndts, which he reproduces in Morton II, suggest the spread of Western Desert peoples about Kalgoorlie by the mid-20th century, and that they in any event do not confirm the exclusion of Edjudina from the WDCB.
It is also relevant here to mention that in Mathieu III, Dr Mathieu examines how Berndt set the boundary of the WDCB at Tindale's border between the Walyen and the Maduwongga. This is based on the same map. Dr Mathieu attributes Berndt's decision to draw the line there to the differing kinship structures of the Maduwongga-Kalamaia-Kalaago-Ngurlu cultural bloc on the one hand and the WDCB on the other hand. The discussion of that subject in Section XI above shows that distinguishing between different 'tribes' on that basis is highly problematic.
All in all, Section Two of Mathieu II relies on matters I have found not to be established by the evidence, essentially, KB's birth at Edjudina and the accuracy of Tindale's mapping. It does not contain good reasons to find against the Western Desert case.
Section Three of Mathieu II purports to address the second limb of the separate question, rather than what I have described as the Western Desert case. Most of what is covered in that section of the report has been addressed elsewhere in this judgment, for example the organisation of Maduwongga society into moieties. Some of it concerns Marlinyu Ghoorlie claims, and so is not relevant to the overlap area or the separate question.
Dr Mathieu concludes by considering the country of Yordy and Jurdain in the manner that is described above in Section VIII.
Dr Morton's reply
Dr Morton in turn considers the information about Jurdain in Morton II, in response to Dr Mathieu's discussion of it. He refers back to an opinion given earlier in Morton II 'that Jurdain's wangka (speech) was probably of a Western Desert type' (Morton II para 83). He examines typescript notes of Bates's discussion with Jurdain which give ten places that run from Coolgardie through Edjudina up to Linden. This typescript is not in evidence but Dr Morton says it corresponds closely to the list given by Dr Mathieu. Dr Morton draws a line through the first 10 locations on a map which shows that 'they form a 'line' or 'road' skirting the south-eastern boundary of Tindale's Maduwongga area, except that the line extends beyond the Lake Raeside boundary to end at Linden, on the shore of Lake Carey (which Tindale maps as Walyen)' (Morton II para 84, Map 11). So Dr Morton accepts 'that Dr Mathieu is right to suggest that Jurdain's country, as mapped for Bates, bears close comparison with the Maduwongga area mapped by Tindale' (Morton II para 85).
But Dr Morton does not consider that it follows that the Edjudina district was excluded from the WDCB. He points out that the line drawing Jurdain's country goes to Linden, 'which is most assuredly part of the area of the WDCB' (Morton II para 85). He says that Jurdain's speech, as well as that of his niece Nyeerbeejee, 'appears to have been in a Western Desert mode'. And he remarks that the area around Jurdain's 'line' from Coolgardie to Linden 'is one where Bates recorded the mixing of sections characteristic of parts of the WDCB with generation moieties characteristic of an area to the south-west of the WDCB'. Dr Morton's opinion is thus (Morton II para 86, footnote omitted):
Jurdain's line most likely traversed a large expanse [of] country that was part of the WDCB - from Linden and Edjudina to somewhere about Kalgoorlie. The mixing of sections and generation moieties in the more westerly part of that area suggests that it was a border region associated with more than one language, one Western Desert, the other not - this on account of regularised 'inter-tribal' marriage between Western Desert people and people of (what Bates called) 'The Karratjibbin (Southern Cross) Nation', whom Tindale referred to as Kalamaia and Kalaako.
In the concurrent expert evidence session Dr Morton placed even more emphasis on Jurdain, as a 'Western Desert man' (ts 454), implicitly one who had country around Edjudina, and similarly Yordy.
Dr Morton also examines a relevant passage from David McDonald's unpublished memoir, which has already been discussed in Section VIII and Section X above. He gives a fuller quote of the passage (Morton II para 96), relevant extracts of which are (with Dr Morton's interpolations, footnotes omitted):
… I learned much about the Wongi. They were not so much of a Nomad as some writers would have one believe. The various tribes such as roamed the goldfields area, Kabul of the Coolgardie area, Mulba of Norseman, Wongi of Pindinnie and Edjudina each had their own section of country mapped out and their home ground would be at the most permanent water supply.
The Wongi were split into four tribes, one at Pindinnie with a type of auxiliary out east in spinifex country, another at Edjadoo [Edjudina], also with an auxiliary in the spinifex. Ed … [following line missing] …
There is little difference in the language or lingo of these friendly tribes but they have different words for some things for instance; a dingo at Pindinnie is called Wangoo and at Edjadoo, Bubba … [Many further language examples follow.]
The native name of Pinjin is Binjinnie. This is in Wongi country …
Dr Morton takes the following propositions from this (Morton II para 97):
a)Pindini, Edjudina and Pinjin were 'Wongi' places - that is Wangkayi, and therefore Western Desert places.
b)The people of these places spoke closely related dialects of the Western Desert language.
c)The people of these places were socially and culturally connected to other Western Desert peoples in 'the spinifex' (further east).
d)The people of these places intermarried, and therefore were related to each other by kinship, and they jointly conducted ceremonies.
In Dr Morton's opinion, these matters 'are sufficient basis to conclude that the people of Pindini and Edjudina were, in McDonald's time, part of the same society'.
I accept Dr Morton's opinion in this regard. The Maduwongga applicant sought to cast doubt on the reliability of McDonald's memoir on the basis that it was written long after he experienced the people and places in question here, and on the basis that a page was missing from the relevant extract. I have already indicated that I disagree with the latter point. As for the broader reliability of McDonald's memoir, it is of a piece with the inevitably incomplete nature of the historical record in this area. But McDonald's recollections are cogent, convincingly detailed, and consistent with the rest of the evidence. Like Dr Morton I consider them to provide valuable information as to the occupation of the overlap area at or near the time of effective sovereignty.
Cross examination of Dr Mathieu
Dr Mathieu was cross examined on the anthropological literature about the extent of the WDCB. She was taken to a passage from Berndt's seminal 1959 article, 'The Concept of "the Tribe" in the Western Desert of Australia', introduced above at [25],in which Professor Berndt says that the 'region in question extends eastward from Kalgoorlie, Laverton and Leonora as far as Oodnadatta'. She did not accept that this means that the south western boundary of the WDCB should be placed at Kalgoorlie, however, because Berndt, in her view 'was focussed on ritual' and it was 'the religion' that interested him, so he 'had little interest in social economic territories' (ts 613). This appears to hark back to Dr Mathieu's distinction between spiritual and economic spheres where only the latter encompasses land tenure. Dr Mathieu also pointed out that Berndt's mapping of the Western Desert occurred around 1959, and so may not bear very directly on the position at effective sovereignty (or, I would add, during KB's lifetime).
Dr Mathieu was also cross examined on an earlier article by Ronald and Catherine Berndt, 'A Preliminary Report of Field Work in the Ooldea Region, Western South Australia' (1942) 12 Oceania 305-330 which says (p 307) 'The extent of the wanderings of the desert people may be observed by the main waterhole ("gabi") routes set out in the map. These fringe the limits of the desert on the west and east, the "hill" country on the north, and the Nullarbor Plain on the south'. The map of those gabi routes shows them extending to Kalgoorlie from both the east and the north east, and so essentially encompassing the Maduwongga claim area. But Dr Mathieu once again discounted that as referring to the position in the 1940s after, she said, the Desert people had 'moved in' (ts 616).
Dr Mathieu was also cross examined about the evidence described above to the effect that the presence of watis such as Darbin Murphy, Wobalie Blizzard, Stumpy Edwards and Ivan Forrest in the Edjudina area was a marker of the presence of Western Desert laws and customs in that area. Dr Mathieu accepted that there were ritual connections, but said that had nothing to do with 'laws and customs' (ts 656). Evidently she was relying there once again on her distinction between spiritual matters and land tenure.
Conclusions about the anthropological evidence
I accept Dr Morton's evidence that Western Desert laws and customs were acknowledged and observed in the overlap area during KB's time, because of the accumulation of the following matters:
(a)section sytems were in place there;
(b)WDLs were spoken there;
(c)Yordy and Jurdain were Western Desert men, and had country there;
(d)KB lived there, and she was a Western Desert person; and
(e)David McDonald identified Wangkayi tribes there.
For reasons canvassed above, Dr Mathieu's opinions provide no good reasons to doubt the matters on which Dr Morton relies.
The Maduwongga applicant's own evidence
The State then points to evidence that Mrs Nudding and Mrs Strickland gave in Wongatha and in this proceeding which demonstrates, the State submits, that they and the other descendants of KB acknowledge and observe Western Desert laws and customs. I have set out much of that evidence above. Section X sets out extracts from the transcript in Wongatha in which Mrs Strickland referred to the Maduwongga as following 'the Wangkayi way' and in which she was unable to identify any differences between Maduwongga customs and those of people who identify as Wongatha. In Wongatha she later identified language as a difference, but as explained above that cannot be sustained.
I have also set out transcript from the cross examination of Mrs Strickland in this proceeding in which she identified the absence of a section system as a difference. As explained in Section X in connection with the subject of section groups, the evidence does not establish that this was indeed a difference.
The State also points to other aspects of Mrs Nudding's and Mrs Strickland's evidence which, it says, include a number of other indicia of Western Desert laws and customs. They were the importance of tjukurrpa relating to sites in their country, including Lake Rebecca and Lake Raeside, the importance of kapi (gabi or rock holes) in denoting a person's country, and Arthur Newland's status as a wati who had involvement in Law Business. In that regard, it will be recalled that the evidence about Mr Newland set out in Section VII, Section IX and Section X, was to the effect that he could speak for places of significance in the overlap area and was engaged in Law business in places in the Western Desert far beyond the Maduwongga claim area (see [656]). Hector O'Loughlin, Elvis Stokes, Dora Cotterill (via Cheryl Cotterill) and Ivan Forrest also gave evidence to the effect that Mr Newland was Wangkayi.
As for Stevie Sinclair's evidence, with one exception he said he did not know whether members of the NP claim group who were named to him spoke for the country around Edjudina even though he knew them; he said 'I only know just Marjorie and … Joyce, yes' (ts 336). The exception was Hector O'Loughlin, whom Mr Sinclair said he knew. When asked whether he knew anything about whether Mr O'Loughlin speaks for that country, Mr Sinclair said 'Well, I think so, yes. He's been there for a while. So, yes, probably, yes'.
When cross examined about this Dr Mathieu said 'Well, maybe they do. Maybe they have ritual rights there, but they're not primary rights' (ts 657). This is an example of Dr Mathieu's readiness to reach for speculative rationalisations of the evidence so that it does not impinge upon her theoretical constructs. But it is plainly inconsistent with Mr Sinclair's evidence - a right to speak for country is a primary right: see Ward HC at [14] and see Dr Mathieu's own oral evidence associating rights to speak for country with land tenure. It is Mr Sinclair's evidence which I accept, not Dr Mathieu's speculation about what it might mean.
Whether KB came from the Western Desert
This subject is canvassed extensively in Section VII (under the heading 'The life of KB') and Section XII. I have determined that KB did come from the Western Desert.
Conclusions as to the Western Desert case
In my view, the Western Desert case has been made out, principally on the basis of the matters that have been canvassed in this section. Those matters establish that during KB's time (and, if it is relevant, at effective sovereignty) there was a Western Desert society united by common observance of a normative system of traditional laws and customs. Under those laws and customs, rights and interests in relation to land and waters were acquired via multiple pathways including birth in or long association with an area.
Those laws and customs and the identification with country that gives rise to land rights were bound up with tjukurrpa. Tjukurrpa had a normative dimension which could give rise to land 'holding' rights, and there is no useful distinction between a ritual and ceremonial dimension expressed in tjukurrpa and an economic one that inheres in 'land tenure'. In any event, acknowledgment of tjukurrpa and Wati Law in an area is a strong indication that Western Desert laws and customs were acknowledged in that area. Tjukurrpa and Wati Law were acknowledged throughout the Maduwongga claim area, reaching as far west as Coolgardie.
There is also ample lay Aboriginal evidence which indicates that Western Desert people held country in the overlap area during KB's time. Some of the evidence concerns that time directly, other evidence pertains to more recent times but supports the proposition by inference.
The lay evidence described in Section VIII also establishes convincingly that KB was associated with the Lake Rebecca Area. But that same evidence also makes it clear that she was not alone in her association with that area. For the most part, the other people who were associated with it during her time are not named, although Mrs Nudding did mention Norman Forrest, Jessop Sullivan and Tommy Bluegum as among the 'old people' who spent time camping with KB on country. Norman Forrest was from the other side of the Edjudina Range from the Maduwongga claim area, from Linden through to Kookynie. Jessop Sullivan was from Darlot, north of the Maduwongga claim area. It appears uncontentious that Tommy Bluegum was a Western Desert person.
Mrs Nudding described KB as a 'tribal' person who moved around 'nomad style' (ts 66). The white man Simpson Newland would complain of 'full bloods' hanging around Old Pinjin. They included Lilly McDonald and her daughter Dora Cotterill. A person frequently mentioned as accompanying KB was Roy Sullivan, whose country extended well into the Western Desert including into the current NP claim area. Albert Newland, who spent time with KB as a child, remembers a big camp with a number of families at Eucalyptus. Albert Newland recalled KB herself wandering as far afield as Linden, Eucalyptus, Mt Celia and Kookynie, outside the Maduwongga claim area and in the NP claim area and gave evidence in Wongatha that KB was connected with that land. He appears to have said with some force that he knew KB's country because he had lived with her. Dora Cotterill, who knew KB, said that she and her family would mix with families from Laverton way, that is, from the Western Desert, including for ceremonies.
I thus find that KB was Wangkayi, that is, she was a Western Desert person. By that I mean that she was a member of a group that was part of the culture of the Western Desert. She came from the Western Desert, the spinifex. She spoke a Western Desert dialect. She associated with Western Desert people and had familial relationships with them. She participated in ceremonies with Wangkayi people from all around. Unchallenged evidence of Dora Cotterill, Hector O'Loughlin, Ivan Forrest and Elvis Stokes characterised KB as Wangkayi. So if Western Desert laws and customs were observed in the overlap area, this all provides a sound basis to infer that KB acknowledged and observed those laws and customs, and further that her long association with the area was sufficient, under the multiple pathways model, to give her rights and interests in relation to it.
As to the question of whether Western Desert laws and customs were observed in the overlap area, in my view the debate about where the Western Desert Cultural Bloc ends is an arid one in the context of the separate question. It is not the kind of thing that can be mapped with precision and plainly the overlap area is at or near the south-western extent of the geographical coverage of the concept. What matters more, in my view, is the specific evidence that tjukurrpa and Wati Law extended across the Maduwongga claim area, that the people who occupied the overlap area all spoke WDL dialects, that section names were observed in the overlap area, and that Jurdain, Yordy and a host of other Wangkayi people from later generations had country in the overlap area.
Dr Morton's expert evidence confirms the significance of all these matters. But it is appropriate to focus in conclusion, on that last point, namely the Aboriginal evidence about the connection of Wangkayi people to the overlap area. There is a large body of such evidence, establishing that during KB's time, many Western Desert people and families held rights to country in the overlap area, including around Edjudina. It has been canvassed throughout this judgment but can be summarised as follows:
(1)Evidence about Dora Cotterill's association with the overlap area, and her association with KB (see [126], [515], [517]).
(2)Evidence about May O'Brien's association with the overlap area (see [516]).
(3)Evidence about Hector O'Loughlin's father, Frank O'Loughlin, and mother, Doreen O'Loughlin, who were both Wangkayi and had country in the overlap area (see [509]).
(4)Ivan Forrest's evidence about his father, Norman Forrest, having country at Edjudina, Pinjin and Menangina in the overlap area (see [514]).
(5)Cheryl Cotterill's Walyen father, Morris Brownley, who was about 19 when KB died and whose country was identified as including the overlap area. Cheryl Cotterill's country is the same as her fathers (see [218], [517]-[518]).
(6)Elvis Stokes's evidence about his father, Arthur Stokes, his father's mother's sister and his grandfather having similar country in the overlap area (see [510]).
(7)Ashley Blake's evidence about his father having similar country in the overlap area (see [513]).
(8)Evidence that Darbin Murphy, Stumpy Edwards and Wobalie Blizzard had important connections to Edjudina and Pinjin in the overlap area (see [633]-[634], [650], [980]).
Evidence about the connection to country of more contemporary persons is further removed from KB's time, and so is less direct proof of the position during that time. But it can still provide support, by inference, as to the position during KB's time. Elvis Stokes's strong and unchallenged evidence to the effect that the Lake Rebecca Area is his country and that 'Edjudina belongs to a big mob of people' (Exh 18 para 19), being a large number of families he names, provides significant support of that kind. Mr Blake's evidence that when he grew up on Edjudina Station a big mob of Wangkayi were coming and going is perhaps less significant, but still relevant. Those people included Darbin Murphy, who had been there a long time. Ivan Forrest, whose life nearly overlapped with KB's, similarly gave unchallenged evidence to be able to speak for country in and beyond the overlap area. Cheryl Cotterill also named a number of families associated with the overlap area.
I accept this largely unchallenged evidence, and since I have concerns about the general reliability of Mrs Nudding's and Mrs Strickland's evidence, I do not accept their denials that these people had and have traditional rights to country in the overlap area. In Mrs Strickland's case, the firmness of those denials eroded somewhat in cross examination.
The Maduwongga applicant seemed to accuse the NP respondent and the State of circularity in their reliance on that evidence. The argument appeared to be that the association of numerous Western Desert people with the overlap area in KB's lifetime could only give rise to those people having rights and interests in the area if it is assumed that Western Desert laws and customs apply in that area in the first place.
I do not accept that argument. The evidence I have summarised establishes convincingly that numerous people during KB's lifetime, including but in addition to KB, held traditional rights to country in the overlap area. That is not a matter of assumption, it is a matter of evidence. The question then becomes, under what normative system did those rights arise? For the reasons explained in the bulk of this judgment, it was not a Maduwongga system, or any other system that was identifiably distinct from the laws and customs of the Western Desert. And these people, including KB, were Western Desert people. The irresistible inference that follows is that the normative system acknowledged and observed by KB, and the other Aboriginal people with whom she associated, was the normative system of the Western Desert. That reasoning involves no circularity.
XIV. THE ANSWER TO THE SEPARATE QUESTION
For all the reasons given in this judgment, I conclude that the traditional laws and customs of the Western Desert were acknowledged and observed in the overlap area during KB's lifetime, and were acknowledged and observed by KB herself. No other normative system of traditional laws and customs has been established as having been acknowledged and observed in the overlap area during KB's time, whether that of a ' Maduwongga' group, or a group of a different name, or of no name at all. KB's rights and interests in the overlap area are likely to have arisen under those Western Desert traditional laws and customs.
The separate question must therefore be answered as follows: KB held rights and interests in those land and waters of the Maduwongga Application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of the Western Desert, and not of a distinct land-holding group of which KB's descendants are the only identifiable surviving members.
I understand that this conclusion will be contrary to the strongly held views of Mrs Nudding, Mrs Strickland and others. That is why I have tried to explain the reasons for the conclusion fully and to explain how it is based, as it must be, on the evidence that has been adduced in this Court, acting as a court of law. It is always regrettable when it is necessary for the Court to make a ruling on matters of this kind, and so inevitably disappoint some. Nevertheless, I record my gratitude to the parties, solicitors and counsel on all sides for the cooperative and pragmatic way in which they approached the process that has led to that ruling.
As has been said, the State and the MG respondent do not seek costs, but the NP respondent has not confirmed its position in that regard. The NP respondent will be given liberty to apply within two weeks in relation to costs.
I certify that the preceding one thousand and fifty seven (1057) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.
Associate:Dated: 27 March 2023
Annexure A
Annexure B
Annexure C
Annexure D
Annexure E
SCHEDULE OF PARTIES
WAD 186 of 2017 Nyalpa Pirniku Claim Group Respondents:
PATRICIA LEWIS VANESSA THOMAS-DOWDEN LEO THOMAS HECTOR O'LOUGHLIN ASHLEY BLAKE DARREN POLAK RON HARRINGTON-SMITH VICTOR COOPER ELVIS STOKES MR T (DECEASED) Marlinyu Ghoorlie Claim Group Respondents:
BRIAN CHAMPION JAMES CHAMPION SIMON CHAMPION HENRY RICHARD DIMER MAXINE PATRICIA DIMER RAELENE PEEL DARREN INDICH Other Respondents TREVOR JOHN BROWNLY CENTRAL DESERT NATIVE TITLE SERVICE LTD SHARON DIMER TREVOR HENRY DONALDSON BARTON CECIL JONES (JUNIOR), AMANDA JANE CECIL JONES, BURCHELL FRANCIS CECIL JONES AND JOHN LOAD CECIL JONES MENANGINA PTY LTD COWARNA DOWNS PTY LTD HAMPTON TRANSPORT SERVICES PTY LTD EVELYN CHRISTINE GAMMAGE AND ANTHONY PHILIP GAMMAGE BJ CAHOOTS PTY LTD MT VETTERS PASTORAL CO (1966) PTY LTD ZENITH AUSTRALIA INVESTMENT HOLDING PTY LTD ANGLOGOLD ASHANTI AUSTRALIA LIMITED APHRODITE GOLD LIMITED BHP NICKEL WEST PTY LTD COOLGARDIE MINING COMPANY PTY LTD DAVENNE HOLDINGS PTY LTD INDEPENDENCE GROUP NL KAILI GOLD PTY LTD KALGOORLIE LAKE VIEW PTY LTD NEWMONT EXPLORATION PTY LTD NORTHERN STAR RESOURCES LIMITED SARACEN GOLD MINES PTY LTD SARACEN KALGOORLIE PTY LIMITED ST BARBARA LIMITED COLIN RICHARD BRADBURY PETALYN FISHER PETER JOHN KERLEY DAVID CHARLES LYONS IAN MITCHELL CRAIG DUNCAN SWAN TELSTRA CORPORATION LIMITED
6
15
3