Dale v Moses [2007] FCAFC 82 (7 June 2007)

Last Updated: 8 June 2007

FEDERAL COURT OF AUSTRALIA

Dale v Moses [2007] FCAFC 82

NATIVE TITLE – appeal from native title determination of single judge - where primary judge dismissed appellants' claim to native title in the determination area but found another native title claim group, the Ngarluma people and Yindjibarndi people, held non-exclusive native title – where appellants' claim dismissed on basis that they were not a group with continuing connection and were not differentiated from Ngarluma people and Yindjibarndi people

NATIVE TITLE – transmission of native title rights and interests – where appellants' case at trial regarding area known as "the Burrup" based on alleged transmission of native title rights and interests from two Aboriginal persons said to be sole surviving members of group which originally inhabited the Burrup – where primary judge found no transmission in fact and also that appellants had not maintained connection after alleged transmission - whether Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2003) 214 CLR 422 precluded inter-societal transfer of native title rights and interests – whether judicial notice could be taken of existence of traditional law or custom by which transmission could occur


Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2003) 214 CLR 422, discussed










BETTY DALE AND OTHERS (ON BEHALF OF THE WONG-GOO-TT-OO PEOPLE) v DAISY MOSES AND OTHERS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE AND OTHERS (ON BEHALF OF THE YINDJIBARNDI PEOPLE) AND OTHERS
WAD 120 OF 2005

MOORE, NORTH & MANSFIELD JJ
7 JUNE 2007
SYDNEY (VIA VIDEO LINK TO PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 120 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BETTY DALE AND OTHERS (ON BEHALF OF THE WONG-GOO-TT-OO PEOPLE) Appellants

AND:

DAISY MOSES AND OTHERS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE AND OTHERS (ON BEHALF OF THE YINDJIBARNDI PEOPLE) First Respondents VALERIE HOLBOROW (NEE COSMOS) AND OTHERS (ON BEHALF OF THE YABURARA AND MARDUDHUNERA PEOPLE) Second Respondents THE STATE OF WESTERN AUSTRALIA AND OTHERS Third Respondent COMMONWEALTH OF AUSTRALIA AND OTHERS Fourth Respondents TELSTRA CORPORATION LIMITED Fifth respondents SHIRE OF ROEBOURNE Sixth Respondents P & D COOK AND OTHERS Seventh Respondents BHP MINERALS PTY LTD AND OTHERS Eighth Respondents CAPE LAMBERT IRON ASSOCIATES AND OTHERS Ninth Respondents DAMPIER SALT LTD Tenth Respondents HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD Eleventh Respondents NORTH WEST SHELF JOINT VENTURES & WOODSIDE OFFSHORE PETROLEUM Twelfth Respondents MINERALOGY PTY LTD Thirteenth Respondent BORAL CONTRACTING PTY LTD AND OTHERS Fourteenth Respondents ANVIL MINING NL AND OTHERS Fifteenth Respondents RON BRAND AND OTHERS Sixteenth Respondents MG CREASY Seventeenth Respondent RAYMOND JOHN THOMAS BUTLER VT & PA ROBERTS Eighteenth Respondents G H ALEXANDER AND OTHERS Nineteenth Respondents COSSACK PEARLS PTY LTD AND OTHERS Twentieth Respondents YATHALLA ABORIGINAL CORPORATION Twenty-first Respondent MINGULLATHARNDO ASSOCIATION INC Twenty-second Respondent HORACE PARKER & OTHERS (ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES) Twenty-third Respondents TEDDY ROBERTS AND OTHERS Twenty-fourth Respondents GEOFFREY AND MICHAEL TOZER Twenty-fifth Respondents GRAYSON HOLDINGS PTY LTD AND OTHERS Twenty-sixth Respondents AUSI IRON PTY LTD Twenty-seventh Respondent

JUDGES:	MOORE, NORTH & MANSFIELD JJ
DATE OF ORDER:	7 JUNE 2007
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO PERTH)

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 120 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BETTY DALE AND OTHERS (ON BEHALF OF THE WONG-GOO-TT-OO PEOPLE) Appellants

AND:

DAISY MOSES AND OTHERS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE AND OTHERS (ON BEHALF OF THE YINDJIBARNDI PEOPLE) First Respondents VALERIE HOLBOROW (NEE COSMOS) AND OTHERS (ON BEHALF OF THE YABURARA AND MARDUDHUNERA PEOPLE) Second Respondents THE STATE OF WESTERN AUSTRALIA AND OTHERS Third Respondents COMMONWEALTH OF AUSTRALIA AND OTHERS Fourth Respondents TELSTRA CORPORATION LIMITED Fifth respondents SHIRE OF ROEBOURNE Sixth Respondents P & D COOK AND OTHERS Seventh Respondents BHP MINERALS PTY LTD AND OTHERS Eighth Respondents CAPE LAMBERT IRON ASSOCIATES AND OTHERS Ninth Respondents DAMPIER SALT LTD Tenth Respondents HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD Eleventh Respondents NORTH WEST SHELF JOINT VENTURES & WOODSIDE OFFSHORE PETROLEUM Twelfth Respondents MINERALOGY PTY LTD Thirteenth Respondent BORAL CONTRACTING PTY LTD AND OTHERS Fourteenth Respondents ANVIL MINING NL AND OTHERS Fifteenth Respondents RON BRAND AND OTHERS Sixteenth Respondents MG CREASY Seventeenth Respondent RAYMOND JOHN THOMAS BUTLER VT & PA ROBERTS Eighteenth Respondents G H ALEXANDER AND OTHERS Nineteenth Respondents COSSACK PEARLS PTY LTD AND OTHERS Twentieth Respondents YATHALLA ABORIGINAL CORPORATION Twenty-first Respondent MINGULLATHARNDO ASSOCIATION INC Twenty-second Respondent HORACE PARKER & OTHERS (ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES) Twenty-third Respondents TEDDY ROBERTS AND OTHERS Twenty-fourth Respondents GEOFFREY AND MICHAEL TOZER Twenty-fifth Respondents GRAYSON HOLDINGS PTY LTD AND OTHERS Twenty-sixth Respondents AUSI IRON PTY LTD Twenty-seventh Respondent

JUDGES:	MOORE, NORTH & MANSFIELD JJ
DATE:	7 JUNE 2007
PLACE:	SYDNEY (VIA VIDEO LINK TO PERTH)

REASONS FOR JUDGMENT

THE COURT

Introduction

1 This is an appeal brought on behalf of the Wong-Goo-TT-OO people who were one of a number of claimant groups in native title proceedings. A determination was made by Nicholson J in those proceedings on 2 May 2005, though not in favour of the appellants: see Daniel v State of Western Australia [2005] FCA 536.

2 The determination area comprised land and waters of about 25,000 square kilometres, located in the West Pilbara region of Western Australia. The principal judgment of the primary judge, which included a draft preliminary determination, was given on 3 July 2003: Daniel v State of Western Australia [2003] FCA 666. References in these reasons to paragraph numbers of his Honour's reasons are to the judgment of 3 July 2003, unless otherwise stated. A number of judgments concerning particular issues were subsequently given: see Daniel v State of Western Australia [2003] FCA 1425; Daniel and Others v State of Western Australia and Others (No 2) [2005] FCA 178; (2005) 141 FCR 426; Daniel and Others v State of Western Australia and Others [2004] FCA 849; (2004) 138 FCR 254; Daniel (on behalf of the Ngarluma People) and Others v State of Western Australia and Others [2004] FCA 1388; (2005) 212 ALR 51. His Honour's final determination was published on 2 May 2005.

3 The appellants' application insofar as it fell within the determination area was dismissed by the primary judge by order 24 of the determination of 2 May 2005. The appellants were the third applicants at first instance. The first respondents in this appeal, the Ngarluma people and the Yindjibarndi people, were the first applicants, and the Yaburara and Mardudhunera people were the second applicants, and are the second respondents in this appeal. The Ngarluma people and the Yindjibarndi people have filed a separate appeal from the determination and relevant parts of the judgments (WAD 114/2005). The State of Western Australia ("the State"), which is a third respondent to this appeal and a first respondent at first instance, has filed a cross appeal in both appeals. A cross appeal was also

4 filed by the Commonwealth in WAD 114/2005. The appeals and cross appeals were heard together. These reasons concern the Wong-Goo-TT-OO appeal. As we are dismissing the appeal, the State's cross appeal in this appeal is moot.

5 In brief, his Honour found that the Ngarluma people and the Yindjibarndi people held defined non-exclusive native title rights and interests in their respective claim areas within the determination area, subject to specific parts where native title did not exist and less certain portions. His Honour found that, as a group, the appellants did not hold any native title rights or interests in the determination area. The dismissal of the appellants' claim as it related to the determination area was expressed as being without prejudice to any rights that members of the appellants' claim group may have as Ngarluma people or Yindjibarndi people but not as Wong-Goo-TT-OO: see order 24 of the orders of 2 May 2005. The claims of the two other groups who asserted native title rights and interests in the claim area, the Yaburara and Mardudhunera people and the Kariyarra people, failed. No exclusive native title rights and interests were found in the determination area.

The claim area

6 The claim area was defined by the claim areas relating to the claim brought on behalf of the Ngarluma people and the Yindjibarndi people. The Ngarluma claim area and Yindjibarndi claim area were separate areas save for an indeterminate zone running along the escarpment of the Chichester ranges. The Ngarluma claim area was described as the "lowlands" and the Yindjibarndi claim area as the "tablelands". The Ngarluma claim area included such pastoral leases as Mt Welcome Station and Karratha Station, as well as an area of adjacent sea and offshore islands including the Dampier Archipelago (also known as the Burrup Peninsula). The term "the Burrup" was used by the primary judge to describe the Burrup Peninsula and surrounding islands.

7 The claims brought by the other claimant groups, including the appellants, were heard together with the Ngarluma and the Yindjibarndi people's claim to the extent that their claim areas overlapped with the Ngarluma Yindjibarndi claim area. The appellants' claim area was divided into a "core area" and "non core area". The core area, in which the appellants claimed native title rights and interests to the exclusion of all others, was a significant portion of the Ngarluma claim area. It was said to consist of the "Thaluntha" estate (an area west of the Nickol River which included the Karratha station pastoral lease), the "Pularra" estate (between the Nickol and George Rivers) and the Dampier Archipelago (including the Burrup). The appellants claimed shared rights with the Yindjibarndi in their non core area.

The Wong-Goo-TT-OO claim

8 It is convenient to identify the main elements of the appellants' claim to native title at first instance, although various aspects of their claim are discussed in more detail later.

9 The appellants' claim, and their evidence to establish the elements of native title in s 223(1) of the Native Title Act 1993 (Cth) ("NTA"), centred on three families – the Douglas family, the Hicks family, and the Ramirez family. Their claim to have continuity back to sovereignty as a group was based on an alleged genealogical link between these families such that they formed a single cognatic kin group, in accordance with traditional laws and customs. The genealogical claims of the appellants are summarised by his Honour at [1452] to [1455]. In summary, the Douglas and Hicks families were said to have a common ancestor, Rosie Clifton, to whom both families were said to be related by matrilineal descent: see [1453]. The Ramirez family was said to be related to the other two families in the following way. An ancestor of the Hicks family, Winningbung, was the sister of a Ramirez family ancestor, Nyungurtu, and Nyungurtu's daughter, Karipang, was related to an ancestor of the Douglas family (known as Mipirti or Woodbrook Mary). Anthropological evidence was given for the appellants by Mr O'Connor.

10 The appellants' claim to connection to the Pularra area was based primarily on the Douglas and Ramirez families' association with that area. The claim to the Thaluntha area was primarily associated with the Hicks family, with the claim being based on cognatic descent from the families of Jack Hicks and his wife Charlotte, who were the parents of the Hicks claimants' father, Fred Hicks. The evidence of Tim Douglas as to his traditional status and authority in the Pularra area and the Thaluntha area, together with the status and authority of Wilfred Hicks in respect of both areas, was central to the appellants' claim to native title.

11 The appellants claimed that they were differentiated from the Ngarluma people and the Yindjibarndi people, although it was common ground that the name Wong-Goo-TT-OO was invented for the purpose of the claim. The appellants contended that there was a separate native title west of the George River which was a separate and distinct law from the Ngarluma people and Yindjibarndi people. The law practised by the appellants was said to involve a different male initiation practice. This argument relied primarily on the evidence of Tim Douglas.

12 The claim to native title of the Dampier Archipelago and the Burrup was based on an alleged transmission of native title by two Aboriginal men, Maitland and Island, to Jack Hicks in the late 1930s and early 1940s. Maitland and Island were said to be the last members of the tribe which lived on the Burrup, which they called the Yaburara.

13 In final submissions at trial, the Ngarluma people and the Yindjibarndi people asserted for the first time that their claim group also included members of the appellant group. His Honour summarised the links which the Ngarluma people and Yindjibarndi people claimed with the appellants, and the appellants' position, at [1456] to [1457]:

At least 26 of the 35 named third applicant claimant group are listed in the first applicants' genealogies.

The first applicants claimed various kinship connections with the third applicant families, for example through Rosie Clifton and Nyungurtu. In particular a kinship link between Rosie Clifton, her mother Woodbrook Mary and Kanyin, a reputed ancestor of some members of the first applicants´ group was strongly rejected by the third applicants. A related issue, in which it was said that Tim Douglas shared Kanyin as an ancestor with members of the first applicants´ group was denied by the third applicants. Mr Robinson in cross examination conceded that this kinship link was not necessarily a biological one.

The primary judge's determination and findings concerning the appellants

14 The following is a summary of his Honour's findings supporting the conclusion that the appellants did not hold native title rights and interests in the determination area. The analysis of the relevant findings in the submissions of the State have been adopted in a number of respects.

15 His Honour's first major conclusion regarding the appellants was that they did not form a single cognatic kin group and had not made out their claim to be a traditional group. The main findings are at [387], [389] and [390] and are as follows:

Despite the difficulties in the evidence I find that the link between the Douglas and Hicks families is made out.

...

I am not satisfied on the evidence that the asserted link between Karipang (Mr Ramirez´ grandmother) and Woodbrook Mary is made out. The case for the third applicants nevertheless maintains there is a link between the Ramirez and Hicks families as a consequence of Winningbung (the mother of Jack Hicks) and Nyungurtu (Karipang´s mother) being sisters. This is disputed for the first respondents. Mr O´Connor´s evidence was that Winningbung´ s sister was Nyungurtu; her husband´s name was forgotten, but he was a full blood, believed to be from the Harding River, and their daughter was Karipung. In his evidence Mr Ramirez said that the only thing he could remember about Nyungurtu was that she was in Roebourne when the white settler´s arrived. The probabilities on the evidence are that Winningbung came either from the Tableland or the Maitland (as alleged for the third applicants). For Nyungurtu to be around the Roebourne area at settlement would make it unlikely that she and Winningbung were sisters. None of the other third applicants gave evidence of a connection between Winningbung and Nyungurtu. In these circumstances I do not consider the onus of proof of the relationship is discharged.

The consequence is that the genealogical connection between the Douglas and Ramirez families is not established through the Hicks family. The further consequence is that continuity in the mutual or common relation based on family connection is not established between all the members of the third applicants.

16 His Honour accepted that the Douglas and Hicks families had a common ancestor and that they could trace their ancestry back to sovereignty in the Pularra area: see also [377] and [1454]. He also accepted that the Ramirez family could trace its history back to sovereignty in the Pularra area. However, his Honour did not accept that the Ramirez family was genealogically connected to the Douglas or Hicks families. His Honour said at [1455]:

The Ramirez family genealogy goes back through Mr Ernie Ramirez to his mother's mother, Karipang, and to her mother, Nyungurtu, a woman alive at the time of European settlement, and by inference, provides a genealogical link to the date of assertion of sovereignty. This was not in dispute among the parties. The asserted unspecified link between Karipang and Woodbrook Mary is not substantiated in the evidence, and there is, therefore, insufficient basis to establish any genealogical connection between the Douglas and Ramirez families. Mr O´Connor´s evidence and cross-examination was unable to provide evidence to support the link.

17 His Honour found that the only apical ancestor from which a cognatic kin group could be defined was Rosie Clifton (or Woodbrook Mary), which left out the Ramirez and Hicks families.

18 Having found that the appellants were not a traditional group, his Honour went on to conclude that the appellants could not establish continuity of existence as a group since sovereignty (at [384]):

It should also be stated in relation to the families in the third applicant group whose history can be traced back to sovereignty, that there is no evidence that before the constitution of the Wong-Goo-TT-OO group they had any common relation or purpose other than their familial commonality if it can be made out. In the absence of appropriate evidence, it could not be safely inferred that the actions of any one family were taken on behalf of the three families now constituting the group. That is reinforcing of the view that upon the constitution of the group there was a discontinuity from the several existence of the constituting families in the past so that it cannot be concluded the third applicants have established continuity as a group.

19 Since their claim to be a traditional group was not made out, the appellants could not establish connection as a group nor that they held native title rights and interests as a group, even though those rights "appear in traditional form": see [506].

20 As noted earlier, the claims in relation to connection to the Thaluntha area were based on association with the Hicks family. His Honour made two principal findings. These were that Jack Hicks was Yindjibarndi (the traditional country of which group did not include the Thaluntha area) (see [1452] and [1453]) and that connection to the Thaluntha area from sovereignty to the present had not been maintained. His Honour found that the Hicks family had limited physical association with that area since around 1945 or 1946. Each of the three Hicks claimants lived their adult life away from the area, having left when they were children or teens. His Honour also found, on the basis of the evidence of Wilfred Hicks, that he had not asserted his rights to the Thaluntha area "because he had been over-run by others" (at [317]).

21 Another significant conclusion of his Honour was that the appellants were not differentiated from the rest of the Ngarluma people and Yindjibarndi people. The upshot was that the appellants were not connected to their claim area by traditional laws and customs specific to them as a group. As noted earlier, the appellants' principal witness in this respect was Tim Douglas. His Honour made the following observations as to Mr Douglas' credibility (at [313]):

It is necessary firstly to address the evidence of Mr Tim Douglas. He was unquestionably a witness of subjective truth. However, apart from internal contradictions in his evidence, it became apparent in the course of the trial that, considered in the context of all the evidence before the Court, he could not be relied upon in making objective findings of fact. His fervent belief in his subjective views stood out as unique and generally unsupported by other evidence...

22 One of the witnesses for the Ngarluma people and Yindjibarndi people was Kenny Jerrold (now deceased), a senior law man of the Yindjibarndi community. Mr Jerrold gave evidence of Yindjibarndi law and practices in relation to the traditional lands of the Yindjibarndi people before Tim Douglas gave his evidence. Leave was given for the appellants to recall Mr Jerrold, over objections of the Ngarluma people and Yindjibarndi people, because of a statutory declaration Mr Jerrold and a Nglarluma man, David Walker, had sworn. The appellants' case was that the statutory declaration and Mr Jerrold's recall evidence affirmed the evidence given by Mr Douglas as to his and Wilfred Hicks' status and authority and traditional connection with their core area. His Honour stated that he viewed the recall evidence of Mr Jerrold "circumspectly" (at [313]).

23 Also affecting his Honour's assessment of Mr Douglas' evidence was his view that there was a lack of reciprocity of recognition by the witnesses for the Ngarluma people and Yindjibardni people for Mr Douglas' role (at [316]):

Furthermore, the evidence that Tim Douglas and Wilfred Hicks acknowledge the status and authority of Yinjibarndi men such as Kenny Jerrold and Bruce Monadee in their traditional Yinjibarndi country at Millstream and elsewhere and of David Daniel, David Walker and others in what the third applicants describe as the Ngarluma traditional country east of the George River, is not evidence of reciprocation of such recognition. The recognition is entirely subjective.

24 In relation to Mr Douglas' evidence of there being a distinct law practised by the appellants, which was the basis for the claimed distinction with the Ngarluma and Yindjibarndi people, his Honour said (at [314]):

In particular [Tim Douglas'] claims to practise the traditional law for the Roebourne area cannot be accepted. His evidence was that his law was Bidara law. He considered that although the current law at Woodbrook was Bidara/bundut law (involving circumscision) of Yindjibarndi origin, the traditional law there was Walajingka law (involving arm tying and no circumcision). Based on that he held the view that there is a distinction to be drawn between the east and west Ngarluma based on initiation. However, the fact that the Ngarluma people have practised the Walajingka law but now join in the Bidara law does not justify the claims of the third applicants to be the traditional owners of their core area to the exclusion of the first applicants. It establishes only that a person of Ngarluma association is, like the Ngarluma peoples in the Roebourne area, practising Bidara law...

25 It appeared to be common ground that this paragraph contained a number of errors concerning terminology.

26 His Honour also approached the evidence given by the appellants' anthropologist, Mr O'Connor, with some scepticism: see [233]

27 His Honour made a finding of fact that, apart from Mr Douglas, the other members of the appellants did not practise the Bidara/bundut law, such that the distinct law which the appellants alleged existed was not in fact being practised in their core area. One indication of this was that the Hicks and Ramirez claimants had not been initiated in accordance with Bidara law (see [315]). His Honour found that the evidence established "that Mr Ramirez does not acknowledge traditional laws and observe traditional customs" (at [507]).

28 His Honour averted to the possibility that members of the appellants might have native title rights and interests as Ngarluma or Yindjibarndi people: see [508] – [509].

29 His Honour found that native title did not exist in relation to certain parts of the determination area: see order 2 of the determination of 2 May 2005. One such area was the Burrup. His Honour was not satisfied that the Yaburara inhabited the Burrup, or found, alternatively, that the group which did inhabit the Burrup (whether known as Yaburara or by some other name), "disappeared as an identifiable group early in the Twentieth Century" (at [373]). His Honour noted in that context the principle in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2003) 214 CLR 422 at 445-446, at [44], ("Yorta Yorta HC"), that the native title rights and interests in an area cease to exist where the laws and customs that existed at sovereignty ceased to exist (at [373]).

30 Other findings made by his Honour in relation to the Burrup, and consideration of the decision in Yorta Yorta HC, appear at [382] to [383]:

In the anthropological evidence of Professor Maddock [anthropologist for the Ngarluma and Yindjibarndi people] and Mr O´Connor the possibility of succession to laws and customs was acknowledged. In Yorta Yorta at 552, at [44] it was stated by the majority that `the rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests.´ In Yorta Yorta FFC the majority of the Full Federal Court stated that they put to one side, as not arising in the case, the issue of whether it may be possible for a communal native title to be transmitted, according to indigenous law and custom, from one community to another: [2001] FCA 45; (2001) 110 FCR 244 at 275. In Mabo (No 2) there was reference by Brennan J at 61 to assignability within the overall native system and to the possibility of survival on extinguishment of a tribe by Deane and Gaudron JJ at 110. However, there was no evidence here to support a finding that the traditional laws and customs in issue included a right of such transmission (a matter also referred to in relation to connection).

In my opinion the reasoning of the majority of the High Court in Yorta Yorta, although developed in a different factual setting, preclude the possibility of the application of a rule of transmission if it could be made out. Assuming that transmission of law from Maitland and Island to Jack Hicks occurred (and even assuming it did so under law and customs of whatever society on the Burrup Maitland and Island came from), the assumption of that law and custom by the third applicants would be a later adoption by a new society: Yorta Yorta at 554. The transmittee society, whether receiving the laws and customs later or contemporaneously with the existence of the transmittor society, is a different society from the transmittor society. Consequently, the transmittee society, in this case said to be the third applicants, cannot establish their continuity from sovereignty under those laws and customs because to do so would involve them relying impermissibly on another society. It is patent that except for the claimed transmission from Maitland and Island, the laws and customs possessed by Maitland and Island were not normative to the third applicants at any time prior to the alleged transmission so that there is not continuity in the third applicant group under those laws and customs absent such transmission. Adoption by the third applicants through the Hicks family, if it occurred, had the consequence that the laws and customs so adopted were not laws and customs which could then be properly described as being the existing laws and customs of the earlier society; rather they owed their life to the later transmittee society: Yorta Yorta at 554, at [53]. It is important to have in mind that the laws and customs and the society which acknowledges and observes them are inextricably interlinked - Yorta Yorta at 555, at [55], so that the third applicant group cannot claim continuity back to a time when the laws and customs in question were not their laws and customs.

31 The following points emerge from the above passage. First, as a matter of law, a transfer of native title rights from one society to another society as alleged could not be recognised under s 223(1)(c) of the NTA. An Aboriginal group which did not previously have any rights in that land under traditional law and custom could not acquire native title by transfer from other Aboriginal persons who were the native title holders. The quality of traditionality of those laws and customs could not pass with them to the transmittee society: (see also [504]). His Honour also found that even if the transfer had occurred as a matter of both fact and law, the appellants would need to establish that such a transfer was itself permitted by or consistent with the traditional law or custom of the appellants and of the society to which Maitland and Island belonged, and no such evidence had been given.

32 Additionally, his Honour found that the appellants had not established that the transfer in fact occurred. His Honour said that (at [503]):

If it was open at law for transmission to occur, I do not consider the third applicants have discharged the onus of proof that transmission occurred as a fact on the balance of probabilities. There is only the evidence of one of the third applicants (Dallas Hicks) on the point. That evidence is devoid of the nature of the laws and customs to which it is said the succession related. On the evidence of the first respondents´ expert Professor Maddock, that is inconsistent with the occurrence of the momentous event of transmission. The first applicants´ expert Mr Robinson had similar reservations. I accept their evidence on this issue rather than that of Mr O´Connor. Wilfred Hicks acknowledged that he had not told anyone about Maitland and Island and the sites on the Burrup and that he had not mentioned it in circumstances in which he could have been expected to do so. The result is the onus has not been discharged on this point.

33 Having found that there was no transfer at law or in fact, his Honour went on to find that, additionally, connection to the Burrup had not been maintained, since continued acknowledged or observance of the traditional laws and customs of Maitland and Island had not been shown (at [505]):

Even if the evidence of the third applicants was accepted as establishing traditionality of their law and custom, I agree with the submission for the first respondents that the evidence does not establish a continuing connection to the Burrup from the 1930s to the present. There was no evidence of connection with the islands of the Dampier Archipelago.

The appeal

34 The appellants contended that, on the basis of numerous alleged errors of fact and law, the trial involved a wholly inadequate appraisal of the evidence of the appellant group and a misdirection of what was required to establish the elements of native title under s 223(1) of the NTA.

35 The notice of appeal filed 28 July 2005 identified ten grounds. The tenth ground was in substance a restatement of the conclusions which the appellants contended that his Honour should have reached. Most of the grounds incorporate a number of alleged errors. The significance of each alleged error was not entirely clear from the appellants' oral or written submissions. Similarly, it was often not readily apparent how the grounds were said to amount to appealable error, whether separately or together.

36 In order to appreciate the way in which the grounds of appeal relate to his Honour's rejection of the appellant group's native title claim, the grounds may usefully be understood as directed towards three main issues (to adopt the analysis of the appellants' case by the State). The first issue is that his Honour did not accept that the appellant group was a cognatic kin group with continuous existence which had maintained connection with their core area since sovereignty (ground seven). The second issue is that his Honour did not accept that the appellants were separate and distinct from the Ngarluma people and from the Yindjibarndi people (grounds one to six). His Honour's assessment of the evidence given by Tim Douglas, which was a major focus of the appellants' appeal, is relevant to this issue. The third issue relates to his Honour's finding that the appellants did not hold native title to the Burrup (grounds eight and nine). The following are the submissions of the principal parties on each of these issues.

Appellants not a group with continuing connection (ground seven)

Appellants' submissions

37 The appellants challenged his Honour's finding that there was "discontinuity" in the existence of the appellant group. They claimed that the group's continuity as a group was established by the biological relationship of members to each other traced back to sovereignty through their apical ancestors. The evidence relied on to establish that the appellant group was an identifiable community which existed continuously since sovereignty was the evidence given by several members of the appellant group, supported by the anthropological opinion and genealogies of Mr O'Connor.

38 There were four elements of this ground of appeal. First, the appellants contended that his Honour incorrectly found that the appellant group had not maintained continuity since sovereignty, having correctly found that they were a group for the purposes of the application of the NTA: see [359]. The appellants submitted that a finding that the appellants were a group for the purposes of the NTA meant that they existed as a group. His Honour had also misdirected himself in finding that there was no evidence that the appellants had "any common relation or purpose other than their familial commonality if it can be made out", prior to the constitution of the group: see [384]. The appellants submitted that the only attributable meaning of "familiar commonality" was a biological relationship between members through apical ancestors, and that this was sufficient to establish continuity of the group and their connection to the land and waters claimed.

39 Secondly, the appellants submitted that it was impossible to understand how there could be discontinuity in the face of his Honour's finding of the biological relationship and continuity of ancestry of the Douglas and Hicks families since sovereignty. There had been overwhelming evidence of a very strong pattern of recognition and acting upon the biological relationships between members of the group and the historical traditional leadership of the group by Woodbrook Mary, Rose Clifton, Tim Douglas' father and brothers, Tim Douglas, Wilfred Hicks and Wilfred Hicks' father and grandfather. Tim Douglas and Wilfred Hicks had both been present day Nyambili or senior law men. By contrast, his Honour had examined continuity in terms of ancestry in relation to the Ngarluma and Yindjibarndi people to reach the conclusion that those groups "consist of Aboriginal people who can generally trace their ancestry back to Aboriginal peoples living prior to European settlement": see [371]. The fact that the appellants were a cognatic descent group had also been accepted by Professor Maddock and Mr O'Connor.

40 Thirdly, his Honour had erred in finding that there was no genealogical connection between the Ramirez family and the Douglas and Hicks families. The appellants had given uncontradicted evidence that the Ramirez family were members of the appellant group, and of their genealogical connection. The appellants claimed that the Ramirez family were members of the group either by a biological relationship or by self-identification as members and their acceptance by other members of the group. The oral history of the appellant group was that a genealogical connection did exist between the Ramirez and Douglas and Hicks families, in the way noted earlier. Since these ancestors were alive before European settlement in the Roebourne area in the 1860s, evidence of genealogical connection had been entirely dependent on oral history. His Honour's attempts to rely on extrinsic reasoning (at [398]) had been speculative at best rather than disproving of oral history. The appellants referred to Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 ("Mabo (No 2)") at 61, at which Brennan CJ referred to the significance of self identification and group identification of membership, as follows:

But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.

41 Fourthly, and in the alternative, it was submitted that the issue of whether a genealogical connection existed between the Ramirez and Douglas families was only relevant to establishing whether the Ramirez family were members of the group. Even if there was no such connection (which was denied), that had not demonstrate lack of continuity as a group.

42 The final aspect of this ground of appeal related to his Honour's rejection of the connection of the appellant group to their core claim area. The appellants contended that the conclusion that the appellants had not maintained a connection with the Thaluntha area nor with the Pularra area were simply not sustainable on the evidence, and that his Honour had misdirected himself as to what was required to establish connection. The appellants also submitted that his Honour's finding that there was no continuing connection was contradicted by the finding that access and use and enjoyment of the resources of those areas was "traditionally accessed": see [506]. The appellants' written submissions also addressed a number of other alleged errors of his Honour in concluding that there was no continuing connection to the Pularra or Thaluntha areas.

43 The appellants also took issue with his Honour's conclusions as to lack of continuing connection in regards to the Burrup. This aspect of the appeal is dealt with later under the heading "No native title to the Burrup".

The State's submissions

44 The State submitted that to succeed on this ground, the appellants would need to overcome:

1. Findings of fact (involving issues of credibility) as to the appellant's genealogies; and

2. Findings of fact as to the temporally limited association of the Hicks family with the Thaluntha area.

45 In relation to his Honour's findings on the genealogies, the State submitted that the only reference in the evidence to any link between the Douglas and Hicks families and the Ramirez families was in Mr O'Connor's report. The only witness who gave evidence of a connection between Winningbung (the Hicks' ancestor) and Nyungurtu (the Ramirez ancestor) was Mr Ramirez, who said that the only thing he could remember about Nyungurtu was that she was in Roebourne when the white settlers came.

46 The State submitted that his Honour's findings as to the connection of the Hicks family to the Thaluntha area were justified by the evidence, both in respect of the finding that Jack Hicks was Yindjibarndi and that the appellants had not maintained the requisite connection to the Thaluntha area. The fact that some of the appellants could trace their ancestors back to European contact said nothing about the appellants being a group which had continuous existence since sovereignty.

47 The State also submitted, contrary to the appellants' contention, that there was no reason to consider that the primary judge regarded the claim to the Burrup as the sole or a necessary basis for establishing continuous connection as a group. Rather, it had merely been one of the bases of connection alleged by the appellants which his Honour had rejected.

Submissions of the Ngarluma and Yindjibarndi people

48 In relation to continuity, the Ngarluma and Yindjibarndi people submitted that the appellants faced an insurmountable hurdle. His Honour had reached a conclusion by inference which was open to him on the evidence that the appellants had not established the ancestral link between the Ramirez and Hicks families which the appellants relied upon to establish the requisite continuity. Furthermore, even if his Honour had found that they were all related, that may not have been sufficient by itself to make them a separate native title holding group.

Appellant group not differentiated from Ngarluma and Yindjibarndi people (grounds one to six)

Appellants' submissions

49 Grounds of appeal 1 to 6 related to his Honour's finding that the appellants were not differentiated from the rest of the Ngarluma and Yindjibarndi people. Before outlining these alleged errors, it is convenient to summarise the appellants' case and their evidence as relevant to these grounds. This summary draws on the submissions of the State. The appellants' case at trial was that there were two distinctive communities connected by traditional law and custom to different areas of land and waters of which the George River was the boundary. The first was the community inhabiting the areas east of the George River (Croydon, Sherlock, Pyramid, Whim Creek) at the time of European settlement and whose initiatory practices were those of the Walajingka law. The second community comprised the ancestors of the appellant group who inhabited the area west of the George River (Old and New Woodbrook, Roebourne and Karratha/Maitland) at the time of European settlement whose initiatory practices were different and were now under the authority of Tim Douglas. There was also a third community, the Yindjibarndi people, whom everyone accepted originated from the tablelands, which their ancestors had occupied at the time of European settlement. The different laws of these three communities was said to connect each people to their different traditional lands.

50 The appellants claimed at trial that Tim Douglas and his ancestors had not been migrants moving into Roebourne, unlike the Yindjibarndi people and the Nglaruma people. Rather, they had always inhabited their country around Roebourne and conducted law business on the law grounds of that area. The appellants claimed that Bidarra law was practised on the Woodbrook law ground under the authority of Tim Douglas. Tim Douglas' evidence was that he had authority to permit access to the Woodbrook law ground and to permit the carrying out of initiatory practices on that law ground in accordance with the appellants' traditional law and customs. Bidarra law was said to have a different derivation than Walajingka law, the latter being a variant of the Wester Desert Marlulu law. Walajingka law was said to refer to the initiatory practices traditionally associated with the people and the country east of the George River (the country known as Croydon, Sherlock, Pyramid and Whim Creek) and of the traditional country of the Kariyarra people carried out at the Warralong law ground and other places further east as far as Jigalong.

51 The appellants claimed that Bidarra law was a variant of the initiatory practices carried on by the Yindjibarndi people in the tablelands inland from Roebourne. Tim Douglas gave evidence explaining the original traditional initiatory practices for the coastal people for the Roebourne area, involving tying ligatures to the upper arms of initiates restricting blood flow whilst they were in seclusion. This was also described by the appellants' anthropologist, Mr O'Connor. Tim Douglas' evidence was that his forebears who were responsible for the traditional law of the Roebourne area had abandoned the arm tying practice because it was too harsh. They had instead retained a symbolic relic of arm-tying as an addition to the Yindjibarndi initiatory practices referred to as "free" law.

52 The arm tying practised under Tim Douglas' authority on the Woodbrook law ground was said not to be part of Walajingka law. Walajingka law involved circumcision and revelatory rituals involving sacred ceremonial paraphernalia of the board or sticks in the period of seclusion of the initiates following circumcision. The practices were said to involve subincision, of which Mr Douglas gave restricted evidence. There was considerable examination and cross examination in restricted evidence concerning the sacred paraphernalia of Walajinka law and its distinction from the Bidara law and the practice of symbolic arm tying.

53 In relation to the Yindjibarndi people, the Yindjibarndi Burndud ceremony was practised on law grounds under the authority of Yindjibarndi senior law men such as Woodley King (now deceased), Kenny Jerrold and Bruce Monadee. It was the law associated with the important Yindjibarndi Millstream law ground over which Woodley King had authority.

54 Tim Douglas also recounted in his evidence what was referred to as the "expulsion story", which the appellants relied upon as further evidence of the distinction between Bidarra law and Walajingka law. The story involved the expulsion from the Roebourne law ground of the sacred ceremonial paraphernalia of the board or sticks of the Walajingka law which the people from east of the George River had carried into Roebourne when they drifted into the area in the 1960s.

55 According to the appellants, the conclusions which should have been drawn from the evidence were as follows:

1. Tim Douglas, and his forebears, who had always inhabited the Roebourne area, had maintained continuity of acknowledgement and observance of their traditional laws and customs relating to the Roebourne area;

2. The Walajingka law of the people east of the George River was not the traditional law and custom of the Roebourne area but, rather, of the area east of the George River;

3. The Ngarluma people therefore had no continuity of acknowledgement and observance of traditional laws and customs relating to any area other than east of the George River. Having only drifted into Roebourne in the 1960s, they could not have the necessary continuity;

4. The Yindjibarndi people continued to acknowledge and observe their traditional law and custom relating to their traditional country on the tablelands. This was notwithstanding that the Yindjibarndi people physically left their traditional country to move to Roebourne under the impact of European contact.

56 The relevant grounds appeared to raise four alleged errors. The first was that his Honour misunderstood the relationship between Bidarra law and Walajingka law. The appellants claimed that his Honour had failed to apprehend the distinction between Walajingka law carried by the people east of the George River, the Burndud ceremony carried by the Yindjibarndi people and the Bidarra law, and the way in which each law connected people to their different traditional lands. His Honour had also erred in relation to the issue of whether the Ngarluma and Yindjibarndi people were a composite community. Since the evidence at trial suggested that the Yindjibarndi people were a distinct community with their own traditional laws and customs relating to their traditional country on the tableland, the question was whether there was one single organised society of Ngarluma people from east to west of the George River with one set of traditional laws and customs connecting all of those people to all of the land and waters claimed outside the traditional country of the Yindjibarndi people. The appellants written submissions identified the proper question to be tried as being:

Was there a single normative system of traditional laws and customs relating to all of the land and waters claimed by the Nglaruma claimants outside the traditional country of the Yindjibarndi people; or was there a set of traditional laws and customs applying to the original inhabitants of the area east of the George River continuing to connect them and their descendants to that country and a separate set of rules of traditional laws and customs applying to the original inhabitants of the area west of the George River continuing to connect them and their descendants (members of the Douglas, Hicks and Ramirez families) to that country?

57 The appellants also contended that his Honour should have found that merely because some Ngarluma people practised or were initiated into Bidara law in the Roebourne area with the permission of Tim Douglas did not give them native title rights or interests in the claim area west of the George River, to the exclusion of the appellants or at all. The appellants did not challenge that the evidence given by Aboriginal people from east of the George River, such as David Daniel (now deceased), David Walker and the Churnsides, may well have been sufficient to establish continuity. However, they did take issue with the proposition that mere migration of those people into Roebourne and the permission given to them to participate in law business of the appellants on the Roebourne law grounds meant that the Aboriginal people from the east of the George River had established connection by their traditional laws and customs with the Roebourne and the Karratha/Maitland areas which overrode the traditional rights and interests of by the appellants.

58 The appellants claimed that, flowing from a misunderstanding of the distinction between Bidarra and Walajingka laws, his Honour had misapprehended the evidence of Tim Douglas and Wilfred Hicks in his conclusions on observable behaviour in relation to rights and interests claimed by the appellants, in Part VIII of the reasons. The appellants submitted that the evidence of Tim Douglas, Wilfred Hicks and Cane Hicks (now deceased) was that they protected places of importance as members of the appellant group, not as part of the Ngarluma people and Yindjibarndi people as his Honour found at [321]. Similarly, the purport of the evidence of Tim Douglas and Wilfred Hicks had been that they attended ceremonies of the appellant group as Nyambili, whereas his Honour found that Tim Douglas held ceremonies and meetings and that there was no evidence of present participation by Wilfred Hicks other than in relation to Yindjibarndi and Ngarluma ceremonies: see [323].

59 The second alleged error related to his Honour's treatment of the evidence of Tim Douglas, which was central to the appellants' case at trial. The appellants contended that his Honour misapprehended the evidence of Tim Douglas concerning his status in, practice of and responsibility for the traditional laws and customs of the Roebourne area. The primary judge had misdirected himself by drawing a distinction between Tim Douglas as unquestionably a witness of subjective truth but whose evidence was not to be relied upon to make objective findings of fact at [313]. His Honour had not identified what he accepted as subjective truth but denied as objective fact. The appellants claimed that in an area such as native title, the unquestionable subjective truth was the objective fact, in relation to matters such as that Tim Douglas was Nyambili for the Woodbrook law ground, that he had authority over the initiatory practices carried out on that law ground, what those practices were, the traditional laws and customs of which the practices were part, and the people to whom the traditional laws and practices belonged. His Honour had also made reference to Mr Douglas' evidence in respect of and in support of findings of fact on such matters as ancestry, traditional law and custom, and the exercise of traditional rights and interests claimed by the Ngarluma and Yindjibarndi people. Further, the witnesses for the Ngarluma and Yindjibarndi people had given their evidence before Tim Douglas. The appellants submitted that not one person had come forward to challenge or contradict Tim Douglas' evidence.

60 The appellants also alleged that his Honour had erred in deciding that there was no evidence of reciprocation of recognition of the status and authority of Tim Douglas and Wilfred Hicks. Kenny Jerrold and other Yindjibarndi law men had given evidence of reciprocation. Their evidence accepted and acknowledged the traditional status and authority of both Tim Douglas and Wilfred Hicks and their traditional country. Tim Douglas and Wilfred Hicks had acknowledged the status and authority of such men as David Daniel, David Walker and Tim Kerr (now deceased) in their traditional Ngarluma/Kariyarra country east of the George River. The boundaries of law and country between the Yindjibarndi, the appellants and the Kariyarra/Ngarluma were therefore common to Kenny Jerrold, Tim Douglas and Wilfred Hicks.

61 The appellants also challenged his Honour's treatment of the recall evidence of Kenny Jerrold. They submitted that Mr Jerrold's evidence had supported the evidence of Tim Douglas and Wilfred Hicks as to their status in the traditional laws and customs of the Roebourne area as Nyambili and their traditional connection to the appellants' core claim area. The recall evidence had been objectively very strong, having regard to the fact that it was freely given, who Mr Jerrold was within the Yindjibarndi community and that he was one of the prime witnesses for the Yindjibarndi people. There had been no rational basis for rejecting evidence independently given by another claimant which so clearly supported the appellant group's claim.

62 Further, the appellants submitted that Tim Douglas had given uncontradicted evidence of the expulsion story described earlier. The point of the expulsion story had been that according to traditional law the board or sticks of Walajingka law had to be taken away from the Roebourne/Woodbrook area back to the country where that law belonged, Croydon. It had been a function of law in relation to country and a function of the person who had authority to apply the law in particular country. It had been Tim Douglas who had that authority in the Roebourne/Woodbrook country.

63 The third error alleged by the appellants was his Honour's conclusion that if the evidence of Tim Douglas was accepted the Hicks and Ramirez members of the appellants would not have any rights in the core claim area because they had not engaged in initiatory practices (at [313]). The appellants contended that his Honour was wrong in law to conclude that an uninitiated male member of the appellant group could not have native title rights in the group's claim area. The appellants relied on the principle in De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 ("De Rose (No 2)") at [58] that it was not necessary for every member of a group to have continued to acknowledge and observe the traditional laws and customs connecting them to their claim area. The fact that Mr Ramirez was not initiated had not meant that he did not acknowledge or observe the traditional laws and customs of the group or that he could not therefore be a member of the group. The evidence of Tim Douglas had been that he had put his sons through the law and would do so for his grandsons. The group as a whole had sufficiently acknowledged and observed the traditional laws and customs by which they were connected to their core claim area, and to the extent that his Honour had held otherwise he had misdirected himself.

64 The fourth alleged error was his Honour's conclusion at [317] that Wilfred Hicks' native title rights to the Thaluntha area had not been asserted (or had been lost) because they were "over-run by others". It was submitted that Wilfred Hicks and others had given comprehensive and systematic evidence of traditional connection. His Honour had misapprehended the appellants' evidence concerning their observance of the claimed rights and interests. They had claimed rights as the appellant group and had exercised such rights as members of the appellant group not as part of the Ngarluma and Yindjibarndi people.

The State's submissions

65 The State submitted that to succeed on this issue, the appellants would need to overcome:

1. His Honour's assessment of the credibility of the appellants' lead witness (Tim Douglas) and the appellant's anthropologist (Mr O'Connor);

2. The fundamental contradictions in the appellant's case, including that they claim to be the traditional owners of the "core area" on the basis of their practice of imported Yindjibarndi Bidara/bundut law which the Ngarluma and Yindjibarndi people also practiced; and

3. The finding of fact that apart from Mr Douglas the other appellants do not practise the Bidara/bundut law (and therefore if practice of the law is a prerequisite to being recognized as a traditional owner of the "core area", most of the appellants fail).

66 The State submitted that the appellants' case was "hopelessly confused" in regards to the way in which they were said to constitute a traditionally based society or traditionally based "group" within a society. Its members had included persons who were Ngarluma and others who were said to be Yinjibarndi. The appellants had claimed rights in Nglaruma and Yindjibarndi country, and in country further west which was Marduthunera country on the evidence. The appellants had claimed to practise Yindjibarndi initiation law in Nglaruma country and had inexplicably relied upon that to distinguish it from other Nglarluma.

67 The State submitted that his Honour's conclusion that Tim Douglas did not practise the traditional law for the Roebourne area was consistent with the evidence, and that the appellants' submissions had in fact acknowledged that the original traditional initiatory practices for the coastal people for the Roebourne area involved arm-tying but not circumcision. Further, the law practised by Mr Douglas was his father's law and on Mr Douglas' own evidence, his father was a migrant to the Roebourne area. The evidence given by Mr O'Connor had also been contrary to the evidence that the Bidara law came from the Tablelands rather than being an evolution of the traditional initiation law in the Roebourne area.

68 The State accepted that [314] of his Honour's reasons contained a number of errors of terminology. However, the State submitted these were not errors of fact or law and were explicable. The main error was said to be his Honour's reference to "Wamulu" law rather than "Walajingka" law as the traditional law at Woodbrook. The Wamulu law was the law of the Ngarluma people at sovereignty which involved arm tying but not circumcision. The evidence was that the traditional initiation ceremonies of other groups were the Bidara law one the one hand, which was plainly the Yindjibarndi law imported from the tablelands to Roebourne, and Walajingka law on the other, which originated further into the desert and found its way up through the Kariyarra into the Croydon area. Tim Douglas's evidence had therefore drawn a distinction between two imported foreign laws, Walajingka and Bidara. The fact that Ngarluma people originally practised Wamulu law meant that both the laws that are now said to be practised, being Bidara law through Tim Douglas, and Walajingka law through others as Ngarluma, both severed the traditional connection. Neither the Bidara law nor the Walajingka law were traditional. The State submitted the issue was central to the appellants' claim of both traditionality and of separation from the rest of the Ngarluma. The distinction between east and west laws upon which the appellants had relied was therefore erroneous. Further, the gist of his Honour's reasons at [313] was that although Mr Douglas might well have thought that the Bidara law he practised was the traditional law for the area, he was quite wrong, and such conclusion had been correct.

69 The State also submitted that Kenny Jerrold's recall evidence had contradicted Mr Douglas' evidence in important respects. His Honour's view that Mr Jerrold's recall evidence should be viewed circumspectly had plainly followed from a consideration of Mr Jerrold's evidence, which included the fact that he had been recalled to give evidence because he had signed a letter and statutory declaration prepared by another claimant with which, as he had said in his evidence, he did not really agree. It was submitted that in any event, the only elements of Mr Jerrold's evidence which could be said to advance the appellants' case was an acknowledgement that Mr Douglas as one of a number of people having the status of Nyambili and that the Douglas family had traditional links to the country west of the George River. Mr Jerrold had not acknowledged Wilfred Hicks as a Nyambili but merely as someone associated with the Woodbrook area.

70 The State submitted that it was an inconsistency in the appellants' claim that their other witnesses at trial were not initiated into the law practised by Mr Douglas. Although the appellants took issue with his Honour's finding that the other appellants did not practise Tim Douglas' law, the State submitted that the evidence, which included restricted evidence, amply justified such a finding.

71 In relation to his Honour's finding that Wilfred Hicks had been over-run by others, the State submitted that his Honour was there addressing the appellants' claim to possession, occupation, use and enjoyment of the core area to the exclusion of others, including the Nglarluma people. His Honour's conclusion had been founded on the evidence, summarised at [1387] and [1388], and there was no reason to overturn this finding of fact.

Submissions of the Ngarluma and Yindjibarndi people

72 The first respondents submitted that the appellants were essentially asking this Full Court to adopt a view of the evidence which the appellants would have preferred the primary judge to have taken, and that no appealable error had been identified. On the issue of his Honour's treatment of Tim Douglas' evidence, the first respondents submitted there was obviously a major distinction between objective and subjective truth which was relevant for the purposes of a native title determination. Issues of credibility of witnesses including Tim Douglas and Kenny Jerrold had been matters that the primary judge was best placed to determine.

73 The first respondents did not dispute at trial that Tim Douglas was a senior law man. However, they submitted that the evidence was only sufficient to conclude that he was one of several senior law men who made decisions about law business at Woodbrook. Other witnesses had not acknowledged any exclusivity of rights of the appellant group. Mere acknowledgement of some authority or status as Ngarluma or Yindjibarndi elders had been very different from saying that they were a separate society or group or that they had exclusive rights. Seniority in law business in an area was also a different issue from the holding of native title in that area. There had also been extensive evidence that the Bidarra law ceremonies performed at Woodbrook and now engaged in by Ngarluma people including Tim Douglas, had been brought in by the Yindjibarndi people, and that the appellants or their ancestors had not developed a unique system or unique variant of law ceremonies.

No native title to the Burrup (grounds eight and nine)

Appellants' submissions

74 The appellants challenged both the legal and factual bases for his Honour's conclusion that the appellants did not hold native title to the Burrup. Five main errors were alleged:

1. His Honour erred in deciding that as a matter of law the appellant group could not establish connection to and thereby native title rights and interests in a claim area or part of a claim area by succession or transmission under the traditional laws or customs of Aboriginal peoples;

2. His Honour should have accepted the anthropological evidence of the expert witnesses Professor Maddock and Mr O'Connor that native title can be established by transmission under traditional laws and customs;

3. His Honour erred by not accepting Mr O'Connor's evidence that transmission of native title on the Burrup to the ancestors of the Hicks family had occurred and his Honour did not disclose any or any satisfactory process of reasoning for that finding;

4. His Honour's acceptance of a requirement for a "momentous event of transmission" which had been unsound and not founded on any sustainable evidence;

5. In rejecting the traditional connection of the appellants to the Burrup, his Honour wholly failed to give proper consideration to all of the evidence of the appellants concerning the history of their knowledge of and continuing connection to the Burrup, and the acts and circumstances of the transmission by Maitland and Island of the native title in the Burrup to the ancestors of the Hicks family.

75 The appellants submitted that his Honour had misconstrued Yorta Yorta HC. The appellants drew attention to the joint judgment in Yorta Yorta HC at 443-444, at [44], in which their Honours stated that recognition of existing rights and interests in land by the new legal order introduced by the Crown's assertion of sovereignty did not "deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty" and that "[t]he rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests".

76 The appellants submitted that his Honour should have started with the proposition that there may have existed at and since sovereignty rules of traditional law and custom in relation to the Burrup which allowed for transmission of rights and interests in relation to the land and waters of the Burrup. Relying on Yorta Yorta HC at 443 – 444, at [44], it was submitted that once that proposition was accepted, and assuming as his Honour did that the transmission occurred under such rules of traditional law and custom, then the common law of Australia did not deny the efficacy of that transmission or succession. The approach put forward by the appellants was, it was submitted, entirely consistent with the legal and anthropological approach applied in other native title claims before the Federal Court in cases such as Rubibi Community v The State of WA (No 6) [2006] FCA 82; (2006) 226 ALR 676 ("Rubibi (No 6)") at [86] – [94], Neowarra v The State of Western Australia [2003] FCA 1402 ("Neowarra") and Re Waanya People's Application (1995) 129 ALR 118. The decision by Merkel J in Rubibi (No 6) and the decision of Sundberg J in Neowarra were made after Yorta Yorta HC. It was said that none of those decisions had expressed any doubt about the recognition under the NTA of native title rights and interests to which a claimant group had succeeded by operation of traditional law and custom.

77 The appellants also claimed that his Honour had failed to direct his mind to whether the traditional laws and customs by which the transmission was said to have occurred should have been inferred, where the circumstances precluded direct oral or written evidence of the relevant traditional laws and customs. The appellants' written submissions set out the facts upon which it was contended that such an inference should have been drawn by his Honour.

78 The appellants also submitted that the present case was factually different to Yorta Yorta HC. The Yorta Yorta society which existed at sovereignty had relevantly ceased to exist because the individuals who had comprised that society who had once observed traditional laws and customs continuously since sovereignty "had ceased to do so and by ceasing to do so, no longer constituted the society out of which the traditional laws and customs sprang": see Yorta Yorta HC at 458, at [95]. The appellants submitted that transmission occurred when Maitland and Island were alive, so that it was not a situation of "later adoption by a new society" as his Honour had said at [383] adopting the words of the joint judgment of Yorta Yorta HC at 446, at [53].

79 In relation to the second alleged error, the appellants submitted that there had been a concurrence of opinion between Professor Maddock and Mr O'Connor that in Aboriginal traditional law and custom that native title rights and interests can be transmitted.

80 In relation to the fourth alleged error, the appellants claimed that his Honour had relied upon an erroneous view expressed by Professor Maddock that the transmission had to be a "momentous event". The appellants submitted that Professor Maddock had provided no anthropological basis for that conclusion and that it was no more than supposition. Professor Maddock had also not carried out any field work in the claim area or nearby Aboriginal communities. His Honour had also failed to identify what was meant by a "momentous event" which had to be established before transmission could be found as a fact or accepted as a matter of law. Merkel J in Rubibi (No 6) had not found it necessary to find a "momentous event", in which case Mr O'Connor had also given evidence as an expert anthropological witness. The evidence before his Honour in that case had been that such an event was required but rather that transmission occurred in response to the social crisis of unprecedented contingencies and the maintenance of the spirituality of country.

81 The appellants submitted that his Honour had sought to play down Mr O'Connor's qualifications and experience, which had been quite unwarranted. It was said that Mr O'Connor had undertaken anthropological and archaeological field work within the claim areas and nearby country as far back as 1985. He had given a consistent example from adjacent Aboriginal communities of an act of transmission. Although Mr O'Connor was a vigorous defender of the material in his reports and expert opinions, he was no more so than the other expert witnesses who gave evidence at the trial.

82 In relation to the fifth alleged error, the appellants' written submissions set out in detail the evidence given by the appellants from which it was said that his Honour should have inferred, as matters of fact, that transmission of law from Maitland and Island to Jack Hicks had in fact occurred, and that the connection to the Burrup.

83 In concluding that the appellants had not established that transmission of rights from Maitland and Island to Jack Hicks had in fact occurred, his Honour had also questioned the secrecy of the retention by Wilfred Hicks of the knowledge regarding the Burrup that had been passed on to him by his father (at [503]). The appellants submitted that this had been explained by Wilfred Hicks in his evidence, with the explanation being that he was not prepared to tell people who were not the rightful people for the country, to ensure that his knowledge was not taken from him and the appellant group by Aboriginal people who did not have that knowledge or a traditional connection to the Burrup. It had only been the recognition of native title and the assertion of some notion of custodial rights by others that had given reason for the Hicks family story now to be told.

84 His Honour also found against the appellants that "the evidence does not establish a continuing connection to the Burrup from the 1930s to the present" (at [505]). The appellants submitted that no reasoning for this conclusion had been disclosed. His Honour had misdirected himself as to what was required to establish continuing connection: see De Rose (No 2) at [62] – [64]. The errors were said to be found at [381] and [383] of the decision. His Honour had also misapprehended that the appellants relied upon a claim to the Burrup to establish connection as a group. Transmission to the Burrup had not gone to the issue of continuity but to the issues of fact and law as to whether it was proved there had been a transfer of rights and whether such a transfer could be recognised as a matter of fact.

The State's submissions

85 The State of Western Australia submitted that to succeed on this issue, the appellants had to overcome:

1. The finding of law that transfer of native title rights from one society to another cannot be recognised under s 223(1)(c) of the NTA;

2. The finding of fact that no such purported transfer to the appellants in fact occurred in relation to the Burrup;

3. Even if a purported transfer had occurred there was no evidence of any traditional law or custom pursuant to which such transfer could have legitimately been made;

4. The finding of fact (involving issues of credibility) that the appellants had not maintained the requisite connection to the Burrup;

5. The fact that it was not established that Maitland and Island had a native title to transfer; and

6. The finding that the appellants did not constitute a traditionally based society or traditional based "group" within a society.

86 The State submitted that if the appellants failed on appeal in respect of any one of these findings, it would be fatal to their claim to the Burrup.

87 In relation to the law concerning transmission, the State submitted that the transfer alleged by the appellants was not of the kind considered in Neowarra, Rubibi (No 6) or De Rose (No 2), each of which concerned intra-societal transmission. The issue in the appeal was whether the NTA accommodated a transfer of title between societies with different laws and customs because the appellants' case appeared to be based upon transmission to the appellants of the laws of the Yaburara. On the reasoning adopted by his Honour based on Yorta Yorta HC, an intra-socetial transmission may be made out, but an inter-societal transmission may not, even if the laws and customs of the two societies are identical: see Yorta Yorta at [53]. The appellants had made no attempt to explain the content of the laws of the Yaburara at trial. In any event, the State submitted, it was clear from Yorta Yorta HC (at 446, at [53]) that the purported assumption by one society of the laws of another is insufficient to maintain native title. The ratio of Yorta Yorta HC rested upon the inextricable link between a society and its laws and customs (at 445 - 447, at [49], [54] and [55]), and hence his Honour was correct to hold that no inter-societal transmission was permissible. The appellants had attempted to rely on Yorta Yorta HC at 443, at [44], but that had merely qualified earlier passages by accepting the transmission of rights from generation to generation within a society.

88 The State submitted that Mabo (No 2) also supported his Honour's conclusion. Brennan CJ at 60 said:

It follows that a right or interest possessed as a native title cannot be acquired from and indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people.

89 The State submitted that there was no error in his Honour's conclusion that there was no transfer in fact to the appellants. The appellants could not support the alleged handover on the evidence of Dallas Hicks (now deceased), as they sought to do, since he had not mentioned any transfer of rights in evidence in chief, and could say nothing about it when asked in cross examination. Neither Wilfred Hicks nor any of the appellants' witnesses had given evidence about a handover. The evidence on country, which the appellants relied upon in the appeal as establishing their substantial knowledge of the Burrup, had been plainly inadequate to support the inference sought. The primary judge's concerns regarding credibility were also relevant to this finding, as discussed below.

90 In relation to his Honour's finding that there was no evidence of any traditional law or custom pursuant to which the alleged transfer could have legitimately been made, the State submitted that the appellants had not made out any custom or law (of theirs or of the Maitland or Island or otherwise) concerning transfer of rights. None of the witnesses had given any evidence of laws of customs concerning transfer. The State submitted that his Honour could not have taken judicial notice of any such rule, in the face of the evidence in this case. Similarly, his Honour could not have inferred such a rule on the basis of one alleged instance of transfer (being the alleged transfer the subject of the appellants' claim) which his Honour expressly found did not occur.

91 The State submitted that his Honour's finding that the appellants did not maintain the requisite connection after the alleged transfer was open on the evidence. The appellants' evidence was that the Hicks claimants had visited the Burrup when they were children living on Karratha station and had later made some occasional visits. They had claimed some knowledge of the Burrup. However, the primary judge had been entitled to find that the appellants had failed to show continued acknowledgement or observance of the traditional laws and customs of Maitland and Island.

92 The State also submitted that even if the content of the traditional laws and customs had been passed from Maitland and Island to Jack Hicks, and then to the appellants, it had been passed between individuals and lacked societal involvement.

93 The State submitted that the primary judge's finding that the Yaburara did not exist or, if it did exist, had disappeared as an identifiable group in the early twentieth century, also stood against the appellants since it was inconsistent with a native title existing at the time of the alleged transfer. This point was also raised in the submissions of the Commonwealth of Australia ("the Commonwealth").

94 His Honour's findings about the Burrup were also affected by issues of credibility of the appellants' witnesses. The State submitted that much of the appellants' evidence was not credible, and in its written submissions referred to several examples of what was said to be unreliable evidence given by the appellants.

95 The State also submitted that his Honour's finding that the appellants were not a traditional group also stood against them in their appeal as it related to the Burrup. With particular focus on the Burrup, the State submitted that two recent ancestors relevant to the transmission claim, Fred Hicks and his father Jack Hicks, were both admitted to be Yindjibarndi, and yet the three sons of Fred, being Wilfred, Cane and Dallas Hicks, said they were Ngarluma. They had claimed to be Ngarluma through their mother, Molly Hicks (nee Douglas). The appellants had not explained how a native title allegedly transferred to Jack Hicks, a Yindjibarndi, became exercisable by them as Ngarluma people, and no law or custom was made out whereby that transmission was made traditional.

The Ngarluma and Yindjibarndi people's submissions

96 The first respondents submitted, specifically in relation to these grounds, that his Honour had not found that the appellants constituted a group in the relevant sense. His Honour had merely been prepared to assume that the appellant group was the transmittee society for the purpose of considering the possibility of transmissions from the society to which Maitland and Island belonged. The first respondents also pointed to the number of other findings which stood against the appellants in relation to their claim to native title to the Burrup.

The Commonwealth's submissions

97 The Commonwealth's submissions were limited to the issue of transmission of rights to the Burrup. It was submitted that the primary judge correctly found that transmission as contended for by the appellants was not available at law on the basis of Yorta Yorta HC.

98 The Commonwealth submitted that in the present case, there were two bases upon which his Honour's conclusion that Yorta Yorta HC precluded the possibility of the application of a rule of transmission could be founded. The first was that inter-societal transmission of rights and interests was a barrier to the recognition of native title, which essentially had been his Honour's reasoning. A second and alternative basis was said to be that a society which faced a "social crisis" of such magnitude that rules of transmission were triggered post-sovereignty was a society which had, in accordance with the principles in Yorta Yorta HC, ceased to exist at the time of transmission. Although this had not been considered in any of the decided cases, but it arose from the principles set out in Yorta Yorta HC.

99 The Commonwealth submitted that what flowed from the underlying principle in Yorta Yorta HC was that only those native title rights and interests which existed at sovereignty were able to be recognised: Yorta Yorta HC at see 446 – 447, at [54]. The appellants had not established that there existed at sovereignty rules of transmission allowing for transmission of rights and interests, and that there was a transmission to the appellants in accordance with those traditional rules. Such matters were not to be assumed by the Court.

100 The Commonwealth submitted that even assuming transmission had taken place between the original tribe living on the Burrup and the tribe of Fred Hicks' father, the result would be that the laws and customs of the appellants would not be properly described as traditional as they were not normative to the appellants at any stage prior to the transmission. Rights and interests in land created after sovereignty owing their existence to the normative system of an indigenous society which was not connected with the land at sovereignty "will not be given effect by the legal order of the new sovereign power": see Yorta Yorta HC at 443, at [43]. Therefore rights and interests in land acquired by inter-societal succession to new territory could not be recognised because what was involved was the creation of new rights and interests in land post-sovereignty.

Submissions of the twelfth respondents (Woodside Energy Ltd and others)

101 The twelfth respondents also submitted that grounds eight and nine only fell for consideration if the appellants were successful in relation to grounds one to seven. Assuming it was necessary to address grounds 8 and 9, they submitted the primary judge's determination that there was no native title to the Burrup was correct in law, as was his Honour's reasoning based on Yorta Yorta HC, and that the factual findings, as they stood, precluded the relevant appeal grounds being upheld.

102 The twelfth respondents submitted that the purported transmission in the present case had been from a group that no longer existed to a contemporary group, whereas the cases relied upon to support succession involved findings that the succession occurred within the relevant group as identified at sovereignty. There was no evidence in the present case that the transmittee society and the transmitter society were the same society, and that there was any law or custom governing transmission.

103 The transmission of native title rights and interests referred to by the High Court in Yorta Yorta HC and relied on by the appellants had plainly been a transmission within the relevant society and from generation to generation. It was submitted that Yorta Yorta HC established that if the content of the laws and customs of a society which held those rights at the time of acquisition of sovereignty are later adopted by another society, the laws and customs will then owe their life to that latter society, and could not be said to be rooted in pre-sovereignty law and custom, at 447, at [55]. The High Court's observations at 443 - 444, at [44] had also been squarely against the principles of succession espoused by the appellants.

104 In relation to the "momentous event" finding, the twelfth respondents submitted that his Honour had plainly considered the evidence and accepted that transmission of rights was a very significant event. This finding had been made in the context of the evidence of Dalllas Hicks of a ceremony where rights were transmitted. It was to be expected that ceremony and its aftermath would be momentous and notorious, and it had been neither.

105 These respondents also contested the appellants' submission that his Honour had failed to give proper consideration to evidence concerning the alleged connection with the Burrup and transmission of rights. His Honour had carefully considered the evidence in relation to the Burrup and made findings on it at [29] to [35] and Appendix H. His Honour also had certain benefits which this Court did not have in relation to findings of fact, especially where there was controversy between witness such as Mr O'Connor, Professor Maddock and Mr Robinson.

Consideration

106 Although the preceding summary of the submissions is by reference to the three key issues in the appeal, it is convenient in dealing with the appeal to consider the grounds individually.

107 We consider first the challenge to his Honour's conclusions at [313] about the lack of objective truth in Tim Douglas' evidence, which was the second ground of appeal. What his Honour meant by the observations was almost certainly that while Mr Douglas believed that what he said in his evidence was true, it did not reflect the facts as his Honour saw them having regard to all of the evidence. While in native title proceedings whether a person believes particular matters may be a relevant fact, in the present case, as it related to Mr Douglas' evidence, the relevant facts were, in the main, not whether Mr Douglas believed things but whether they were true objectively. What his Honour was indicating at [313] was that he was not prepared to accept Mr Douglas' evidence as proof of the existence of facts which required objective proof. It was no different to saying, as trial judges often do, that while they accept a witness genuinely believed what he or she said had occurred was what had in fact occurred that their belief was misplaced. The account given by such a witness reflects that witness's conviction about what happened but not what in fact happened. It is true that his Honour did not explain in detail why he reached this conclusion nor did he set out the other evidence he accepted which pointed to that adverse conclusion. While it is something his Honour might have done (see, for example, Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 at [86] per Kirby and Heydon JJ) in a judgment of over 400 pages dealing with a multitude of issues, some economy in expression and reasoning was unsurprising. In any event, the conclusion expressed by his Honour reflected the singular advantage he had of seeing Mr Douglas and other witnesses give evidence as well as hearing all the evidence.

108 While this Full Court is bound to rehear the matter (though having regard to the issues presented for consideration by the notices of appeal) there are limitations on what an intermediate appellate court might do in such circumstances. They were recently restated by the High Court in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1. As Kirby J noted at [17]:

The "limitations" introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts of trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that the primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions for from that evidence, viewed as a whole.

109 The advantages enjoyed by a trial judge referred to in the preceding passage, and the corresponding disadvantages suffered by an appellate court, can be particularly acute in proceedings such as the present in which the trial judge has observed many witnesses giving evidence and has had to assimilate an enormous amount of material, well beyond that normally experienced in, for example, a civil personal injury trial.

110 There are only two matters of possible substance to which the appellants pointed to demonstrate that his Honour erred in rejecting the evidence of Mr Douglas. They are what was said to be his Honour's reliance on Mr Douglas ' evidence in some areas and the fact that Mr Douglas' evidence was said to be corroborated. However, in the present case, it would be necessary for the appellants to demonstrate that there was cogent and compelling evidence establishing that his Honour's conclusion concerning the credibility of Mr Douglas was wrong. They have not done so.

111 The second ground of appeal was that his Honour misapprehended the meaning and probative value of the evidence of Tim Douglas regarding the practice of traditional laws and customs for the Roebourne area. That evidence was the focus of his Honour's comments at [313]. Ground two must therefore fail.

112 Ground three contended that had his Honour not so erred in his treatment of the evidence of Tim Douglas, he should have made certain findings including that the appellants were the holders of the native title in their core claim area. The first and second grounds of appeal having failed, this ground cannot be made out.

113 The issue raised by the fourth ground concerned the primary judge's observations in [315] that neither the Hicks nor Ramirez claimants would have any rights in the core area because they have not been initiated, if Mr Douglas's evidence was accepted. This ground raised, in a sense, a false issue because Mr Douglas's evidence was generally not accepted. All the primary judge appeared to be doing in making the observation was highlighting an inconsistency or tension in the appellants' case. It was a legitimate comment. It appeared to be common ground that the primary judge misdescribed the applicable law in [314] of his reasons, although different views were taken as to its significance. However there was evidence which supported the observation his Honour made at [315]. There was evidence which would sustain a finding that Dallas Hicks and his sons and Ernie Ramirez and his son had not been initiated and without initiation their traditional rights as a land owner were incomplete.

114 Ground five concerned his Honour's treatment of the recall evidence of Kenny Jerrold. The relevant evidence was given on 4 September 2000. As noted earlier, Mr Jerrold was recalled for the purposes of further cross-examination by counsel appearing for the appellants at trial. He was examined more extensively on being recalled than he had been initially. He was questioned about a letter addressed to Senator John Herron, then Commonwealth Minister for Aboriginal Affairs, and a statutory declaration signed by David Walker and Kenny Jerrold which explained how the letter had come to be written. David Walker had given evidence for the Ngarluma people. The letter might have been thought to be material damaging the case of the Ngarluma and Yindjibarndi people and supporting the appellants' case. The letter was signed by Woodley King, Kenny Jerrold and Bruce Monadee, all of whom had given evidence for the Yindjibarndi people. It expressed concern that the wrong people were being consulted about Heritage Surveys and other matters, and that a Foundation for the Ngarluma and Yindjibarndi people was not being properly set up or run. The statutory declaration explained that there was concern that under existing arrangements the Ngarluma people might be able to speak for Yindjibarndi country, and vice versa, and also that it was originally intended that David Walker would sign the letter for the Ngarluma people. At the outset of the cross examination it was apparent that Mr Jerrold had not read the letter even though he had subscribed to it. This set the tone for the cross examination and further examination of the witness who accused other witnesses, adverse to the appellants' case, of lying. There was no reason why, in the circumstances, the primary judge was obliged to treat this evidence uncritically. It was well open to the primary judge to indicate that this evidence given by this witness at this time should be treated circumspectly and no error arises from him having done so and, in substance, rejecting it.

115 Ground six concerned the alleged reciprocation of recognition of the status and authority of Tim Douglas and Wilfred Hicks in their traditional country west of the George River. To the extent that the appellants point to error on the part of the primary judge in not making findings in the appellants' favour on these issues based on the evidence of Mr Douglas and the recall evidence of Kenny Jerrold, that submission leads nowhere having regard to his Honour's view of the evidence of both witnesses. The last particular in this ground concerns the observation of the primary judge at [317] that in the case of the evidence of Wilfred Hicks regarding the Thaluntha area, it had spoken of him not having asserted his rights because he had been overrun by others. The evidence his Honour was referring to was evidence elicited from Wilfred Hicks in chief. He gave evidence that he had full rights to the core area. He gave evidence of having gone to various places to make sure that no one went in and damaged them any more than they may have already been damaged. However he qualified this evidence by saying, in effect, that the he did not exercise what he described as his full rights (to tell people which way they are allowed to go and where they are not allowed to go) because he had been overrun by other people. The word "overrun" was volunteered by the witness. He repeated the observation a little later and a clear import of his evidence was that he did not exercise the rights he was asserting he had. The primary judge was entitled to view this evidence as not supporting the appellants' contention that they held and exercised a native title right to possess, occupy, use and enjoy the land in question.

116 Ground seven concerned connection and continuity. At [359] the primary judge indicated he accepted the appellants were a group for the purposes of the application though that was an observation directed only to their capacity to prosecute the application. That said nothing about the claims the appellants were making concerning their alleged native title rights. All his Honour said in the relevant paragraph was that he accepted that the appellants qualified as a group having regard to what they claimed. The observation was plainly directed only to their standing to make the application. This limited acceptance of the appellants' position was preceded by an observation (at [358]) by his Honour that whether the requisite relationship in fact existed was a matter to be determined on the evidence. Ultimately, his Honour did not accept (at [389] and [390]) that the appellants had discharged the evidentiary onus of establishing the requisite relationship.

117 As noted earlier, the appellant's claim to constitute a group capable of holding native title was based on a familial relationship between the three families, being the Douglas, the Hicks and the Ramirez families. The evidence given by the members of the appellant claim group, taken together with the other evidence before his Honour, did not support a finding that there was an actual genealogical connection between the Ramirez family and the other families, although there was some anthropological evidence of a link. It was open to the primary judge on the evidence to make the finding he did, namely that there was no genealogical connection between the Ramirez family and the other two families. The finding that the appellants were not a cognatic kin group was destructive, at a fundamental level, of the case which had been advanced by the appellants as to why they presently, and had since sovereignty, constituted a group possessing and exercising native title rights and customs over the claim area.

118 In the appeal, the appellants contended that his Honour erred by not finding that the Ramirez family were members of the group based on their self-identification as members and their acceptance as members by the group. Additionally, it was contended that his Honour could have concluded that the Ramirez applicants were not members of the group and still found that the group had continuity back to sovereignty. As we understand it, these issues were not raised at trial, nor was any separate native title application brought by the Douglas and Hicks families seeking a determination. In any event, other findings made by his Honour stand against these alternative arguments.

119 There was a subsidiary issue raised by this ground concerning the question of whether the Hicks family had maintained a connection to the Thaluntha area from sovereignty to the present. It is unnecessary to address this question in this appeal given the primary judge's rejection of a more fundamental aspect of the appellant's case, discussed in the preceding paragraph.

120 The final grounds of appeal, grounds eight and nine, concerned the Burrup. The appellants' commenced with the argument that his Honour erred in applying the principles discussed in Yorta Yorta HC. The critical passage in the joint judgment of Gleeson CJ and Gummow and Hayne JJ, relied on by the appellants, was 443 – 444, at [44], in which their Honours spoke of the "efficacy of rules of transmission of rights and interests". However this discussion by the members of the High Court is probably directed to intergenerational transmission of rights and interests under traditional laws within the society possessing rights and interests in the land under traditional laws and customs at the time of sovereignty. The observations of the members of the High Court do not establish a principle of the type apparently relied on by the appellants, namely that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest can ultimately be recognised as rights and interests of the transferee society for the purposes of the NTA. The primary judge was probably correct in rejecting this contention. However it is not an issue which it is necessary for us to explore as the legal proposition, if correct, would only be engaged and operate in the appellants favour if certain matters of fact were established. In the present case, the required factual foundation is lacking in several important respects.

121 Not only did his Honour not accept that the evidence established the appellants were a society in the relevant sense, his Honour concluded that there was no evidence to support a finding that the traditional laws and customs in issue included a right of transmission (at [382]) and the evidence did not support a finding that there had, in fact, been a transmission (at [503]). Counsel for the appellants took issue with his Honour's statement that there was "no evidence" concerning a right of transmission. His Honour was probably speaking of direct evidence and, in this respect, he was correct. No witness gave evidence about the existence of a right of transmission. What, in substance, the appellants now say is that the existence of the right of transmission should be inferred from all the evidence and indeed submitted succession was well-known in traditional Aboriginal law and custom within Australia. However the appellants bore the burden of establishing the existence of a right of transmission as it might arise in the facts of this case. It was not a matter about which, in effect, judicial notice could be taken. Additionally, the evidence relied on to support the inference that a right of transmission existed is identified at a high level of generality. The appellants have not demonstrated that the primary judge erred in concluding that the appellants had not established the existence of a right of transmission.

122 Additionally, the appellants have not demonstrated that the primary judge erred in concluding that they had not established a transfer as a matter of fact. The evidence of the central witness of the appellants on this issue, Dallas Hicks, is quite equivocal as to whether there had been a transmission of rights from Maitland and Island to his father. His evidence was equivocal about whether the Burrup had been his father's country before his father met Maitland and Island and the closest he came to giving direct evidence that a transmission had in fact occurred was by agreeing to propositions put to him in re-examination which embodied that conclusion. The evidence relied on by the appellants did not compel the conclusion that there had been a transmission and the primary judge was entitled to conclude that the appellants had not demonstrated the transmission had occurred.

123 This appeal should be dismissed. We note, however, the expression during the hearing of the appeal of the willingness of the Ngarluma and Yindjibarndi people to enter discussions with the appellants with a view to accommodating their interests in the determination made in these proceedings.

124 The State has cross appealed, in the present appeal and the appeal instituted by the Ngarluma and Yindjibarndi people, against that part of his Honour's judgment of 2 May 2005 in which he determined that, firstly, non-exclusive native title rights and interests existed in the "Karratha Area", and secondly, the native title holders in respect of the determination area were the "Ngarluma People" and the "Yindjibarndi People". The aspect of the cross appeal filed in the present appeal which related to native title in the Karratha Area does not fall for consideration, since his Honour found that the Wong-Goo-TT-OO people did not hold any native title rights or interests in the determination area and the appellants have not succeeded in the present appeal. The remaining aspect of the cross appeal, and the cross appeal filed in the Ngarluma and Yindjibarndi people's appeal, are dealt with in the reasons concerning that appeal.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, North and Mansfield.

Associate:

Dated: 7 June 2007

Counsel for the Appellants:	Mr R I Viner AO QC with Mr G Kitto
Solicitor for the Appellants:	Kitto & Kitto
Counsel for the First Respondent:	Mr G M McIntyre SC with Ms C Tan
Solicitor for the First Respondent:	Pilbara Native Title Service
Counsel for the State of Western Australia:	Mr K Pettit SC with Mr S Wright
Solicitor for the State of Western Australia:	State Solicitor for Western Australia
Counsel for the Commonwealth of Australia:	Ms R Webb QC
Solicitor for the Commonwealth of Australia:	Australian Government Solicitor
Counsel for the ninth, tenth and eleventh respondents:	Ms F Bowd
Solicitor for the fifth, ninth, tenth and eleventh respondents:	Blake Dawson Waldron
Counsel for the twelfth respondents and the Western Australian Fishing Industry Council (Inc):	Mr M T McKenna
Solicitor for the twelfth respondents and the Western Australian Fishing Industry Council (Inc):	Hunt & Humphry
Date of last submissions:	30 May 2006
Dates of Hearing:	15, 16 and 17 May 2006
Date of Judgment:	7 June 2007