Neowarra v Western Australia [2003] FCA 1399 (8 December 2003)

Last Updated: 8 December 2003

FEDERAL COURT OF AUSTRALIA

Neowarra v State of Western Australia [2003] FCA 1399

EVIDENCE - Expert evidence - Anthropological evidence - Whether "basis rule" applies - Hearsay - Rule not apply to evidence of previous representation admitted because relevant for purpose other than proof of fact intended to be asserted by representation - Application of exception to evidence of anthropologists of statements made by Aboriginal persons about customs and practices.

Evidence Act 1995 (Cth) ss 59, 60, 76-80, 135-136

The Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 cited

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 considered

HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 considered

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 cited

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 cited

Wilband v The Queen (1967) 2 CCC 6 cited

Quick v Stoland Pty Ltd (1998) 87 FCR 371 cited

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 considered

Guide Dog Owners' & Friends' Association Inc v Guide Dog Association of New South Wales (1998) 154 ALR 527 cited

Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 cited

Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 considered

Daniel v Western Australia (2000) 178 ALR 542 considered

Lardil v Queensland [2000] FCA 1548 considered

Welsh v The Queen (1996) 90 A Crim R 364 cited

Harrington-Smith v Western Australia (No 7) [2003] FCA 893 cited

Law Reform Commission (Australia), Interim Report No 26

Evidence, vols 1 and 2 (1985)

PADDY NEOWARRA, PADDY WAMA & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS

WAG 6016 OF 1996

WAG 6015 OF 1999

WAG 6006 OF 2002

SUNDBERG J

8 DECEMBER 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6016 OF 1996 WAG 6015 OF 1999 WAG 6006 OF 2002

BETWEEN:	PADDY NEOWARRA, PADDY WAMA, SCOTTY MARTIN, JIMMY MALINE, JACK DANN, JACK DALE, KEITH NENOWATT, PAUL CHAPMAN, REGGIE TATAYA, DONALD CAMPBELL, PANSY NULGIT, BETTY WALKER, KATHY OREERI, MANDY WUNGUNDIN, BARNEY U APPLICANTS
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	8 DECEMBER 2003
PLACE:	MELBOURNE

RULING ON EVIDENCE

JUSTICE LEE'S ORDER

1 On 12 March 1999 Lee J directed that the applicants file and serve:

"1. ... a document or documents being an Outline of Case containing the following:

(a) An outline of the facts relied upon to show that at the time of the formation of the colony of Western Australia, an indigenous community held native title by reason of presence on, and connection with, the land of the claim area;

(b) An outline of the facts relied upon to show that the applicants are a group of Aboriginal people with ancestral connections to the community referred to in paragraph (a); and

(c) An outline of the facts relied upon to show that the applicants acknowledge and observe traditional laws and customs that are based on the traditional laws and customs of the community referred to in paragraph (a).

2. ... any reports by expert witnesses upon which the applicants intend to rely to establish the matters addressed in order 1 above, including a statement of the qualifications and experience of each expert witness and an account of the fieldwork and other sources relied upon in preparation of the report."

JOINT ANTHROPOLOGICAL REPORT

2 Pursuant to Lee J's order, on 10 December 1999 the applicants filed an Anthropological and Linguistic Report prepared by Dr Alan Rumsey and Dr Anthony Redmond (the Joint Report). The Joint Report is headed Anthropological and Linguistic Report by Alan Rumsey and Anthony Redmond with Joint Preface by Daniel Vachon, Kim Doohan, Alan Rumsey and Anthony Redmond 10 December 1999. It is a substantial document, consisting of 140 pages of text (433 paragraphs) and 76 pages of notes, references, indices, appendices, attachments, maps, tables and plates. Why Daniel Vachon and Kim Doohan join with the reporters in the Preface when they are not authors of the Joint Report is not explained. The Preface was written after the substance of the Joint Report had been completed, and is in the nature of an overview of its scope.

3 The Preface is followed by an Executive Summary of Findings and Opinions. This is the only part of the Joint Report that I will attempt to summarize. As will become apparent, the Executive Summary is not evidence in the proceeding, but is received as an aide memoire or submission. The authors say that the claimants are a large group of Aboriginal people with traditional connections to the area shown in Map 1. This map depicts the areas the subject of four adjoining native title claims in the Kimberley, two of which are those now before the Court, and includes the territories associated with the Worrorra, Wunambal and Ngarinyin languages, and several other closely related dialects. The Aboriginal people associated with the region have long been recognised by anthropologists, linguists and by Aboriginal people throughout the Kimberley as having their own distinctive, shared body of beliefs, social and cultural traits and language affinities which bind them together and differentiate them from the neighbouring regions. These include:

* belief in a class of individually named ancestral creator beings known as Wanjina, who left themselves throughout the region as cave paintings of a distinctive sort, and/or as features of the landscape

* belief in a primordial serpent called Wunggurr, who is intimately associated with the Wanjina beings, rainfall and fecundity

* events of spiritual conception through which a child is associated with a place from which its body was entered in utero by a pre-existing spirit placed there by Wunggurr

* a division of the entire region into named countries called dambun, dambu, dambina or gra, each associated with one or more Wanjina, often present as a painting in one or more caves or rock shelters within the country

* clan groups, each of which is associated with one of the named countries, clan membership being determined by that of one's father

* a kind of top-down division of the world (human and non-human alike) into two complementary categories of the kind known to anthropologists as moieties, children being assigned to the opposite one to their mother's (usually the same as their father's)

* a system of kin classification through which clan estates are linked together in specific quasi-genealogical or affinal relationships (brother-brother, mother-child, husband-wife etc)

* a system of exchange (the wurnan) in which objects, songs and valued knowledge are circulated through an established order of adjacent clan estates.

4 The authors then describe the content of section 2 of the Joint Report - The Wanjina-Wunggurr Cultural Domain before European Colonisation. They say that Aboriginal occupation of the Wanjina-Wunggurr region is attested by first-hand historical accounts dating from before European colonisation in 1829, and occupation of the claim area is attested by accounts from 1837. Archaeological evidence attests to continuous occupation and use of the area for a period beginning at least 26,000 years before that, and to the presence of Wanjina paintings for at least 600 years. Comparative linguistic evidence strongly suggests that all Aboriginal languages associated with the Wanjina-Wunggurr region are related to each other within a single family of languages which have been developing in situ in the region for at least 1,000 years. While direct ethnographic evidence about the region is not available for the precolonial period, the earliest available ethnography, together with other sources, enable the production of an "inferential but a highly likely account" of many aspects of Aboriginal culture and social life in the claim area before 1829. This account, they say, establishes beyond reasonable doubt that there was an organised system of customary links to land in the Wanjina-Wunggurr region before 1829, almost certainly possessing some of the features listed in the dot points above, and probably most or all of them.

5 The authors then describe section 3 of the Joint Report - The Wanjina-Wunggurr Cultural Domain in the Present and Recent Past. This section is based on their research in the area and on more recent ethnography. They argue that there is still an organised system of customary links to land in the claim area and the wider Wanjina-Wunggurr region, and that it includes almost all the major features attested in the earliest ethnography. Within this system there are many different kinds of cross-cutting ties between people and land. Clan estates continue to be very important units in the social identification and differentiation of country, and clan membership is central in relation to them. But many other kinds of links are also relevant and operative, including all the others listed in the dot points in [3].

6 In section 4 the reporters give Particulars of the Claim Area and the Claimants' ties to it. In their description of the final section - Rights and Interests held within the Wanjina-Wunggurr Cultural Domain - the authors assert that within the Wanjina-Wunggurr region, rights and interests in land are "established as practical entailments" of the forms of linkage recognised within the Wanjina-Wunggurr cultural domain. They say that clan membership plays an important part in the determination of core groups of people who exercise rights over particular locales, and the right to authorise the occupation and use of them by other people. However the other forms of linkage (listed in the dot points in [3]) establish bases on which some of those other people can virtually presume such authorisation. Rights over larger regions, namely language countries and the Wanjina-Wunggurr region as a whole, are held in common by people who are legitimately identified with the region, as members of a language group or of the greater Wanjina-Wunggurr community. These rights are said to include the right forcibly to exclude others from the area. Nowadays, these "more global rights" are exercised mainly at the level of what the authors call "intellectual property": the right to speak authoritatively about the area and its traditions, to control the use and dissemination of images associated with it, and to assess claims which are framed in terms of those traditions. The authors assert that in respect of these intellectual property rights, the level of the Wanjina-Wunggurr community as a whole is crucial for questions of native title, because it is the level at which the relevant culturally specific forms of linkage to land are determined.

7 Several concepts involved in the Executive Summary require explanation. The claim area is the combined area of the two claims in suit. The areas are adjacent. The area the subject of the first claim in (WAG 6016/96) is surrounded on three sides by the area the subject of the second claim (WAG 6015/99). The Wanjina-Wunggurr region is larger than the claim area. It is not defined in the way the claim area is, but includes country beyond the bounds of the claim area though contiguous with it. The Wanjina-Wunggurr cultural domain is not an area, or something to which people belong. Rather it is an inherited body of laws and customs that are observed and acknowledged within the Wanjina-Wunggurr region. The Wanjina-Wunggurr community is the group of people who are associated with the Wanjina-Wunggurr region and observe and acknowledge the laws and customs that constitute the Wanjina-Wunggurr cultural domain.

OTHER EXPERT REPORTS

8 The following expert reports were also filed by the applicants pursuant to Lee J's order:

(a) an archaeological report prepared by Dr Bruce Veitch

(b) an anthropological report prepared by Professor Valda Blundell

(c) historical reports prepared by Dr Fiona Skyring

(d) historical reports prepared by Dr Mary Anne Jebb

(e) genealogies prepared by Diana McCarthy, Kim Doohan and Daniel Vachon and a joint report accompanying the genealogies

(f) a supplementary anthropological report prepared by Dr Rumsey.

OBJECTIONS TO JOINT REPORT

9 The evidence of the claimants was taken in November 2000 and between July and October 2001. On 6 May 2002, when the applicants were about to call Dr Redmond to give evidence, counsel for the respondents (other than the fourth and fifth respondents) informed the Court that they objected to the whole of the Joint Report (other than section 2.3 The linguistic evidence authored by Dr Rumsey alone), alternatively to many parts of it. On that occasion no particular parts were identified, though I was told that some of the respondents had prepared lists of objections. It was not proposed to hand them to the Court at that stage because the outcome of the blanket objection might make it unnecessary to go to particular paragraphs. The blanket objection was put in three ways. First, assuming the numerous specific objections were upheld, what was left would be meaningless. Secondly, it was unclear from the report whose opinions were being expressed. Putting section 2.3 aside, were they opinions held by all of Dr Rumsey, Dr Redmond, Mr Vachon and Ms Doohan, or some only of them, or were they the opinions of Dr Rumsey and Dr Redmond alone? Thirdly, it was unclear whether various statements in the report were of opinion, assumption, hypothesis, fact or hearsay. Reliance was placed on what the High Court had said in The Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 at [84]:

"At the trial, the claimants tendered in evidence a report by [two anthropologists]. The report was received in evidence without proof and without objection despite it being a document which was in part intended as evidence of historical and other facts, in part intended as evidence of expert opinions the authors held on certain subjects, and in part a document advocating the claimants' case. Although it was not suggested that the mixing of these disparate elements, without any evident delineation between them, ultimately led to any insuperable difficulty in this case, it is a practice which has obvious difficulties and dangers."

10 On 7 May some of the respondents filed notices of objection to the Joint Report and other reports. The pastoral lessees other than the second respondent (the Group 2A respondents) made a blanket objection to the Joint Report (except section 2.3), but as a fall-back position made 338 specific objections. The State of Western Australia (the State) also made the blanket objection, and if that were to fail made 94 specific objections. Again there was no objection to Dr Rumsey's linguistic section. The West Australian Fishing Industry Council (WAFIC) adopted the Group 2A respondents' objections and made some additional specific objections of its own. The second respondent adopted the submissions of the State and the Group 2A respondents. The specific objections included the absence of a statement of any basis for an opinion or conclusion, hearsay, relevance, and attempt to fill gaps in the primary Aboriginal evidence.

11 It was soon apparent that, having regard to the multiplicity of objections, it would be impossible to deal with them without excising several days from the timetable established for the hearing of the experts' evidence. The course I directed be followed was that counsel for the applicant be permitted, by oral examination, to attempt to "cure" at least the more global deficiencies asserted. I took this course for a number of reasons. First, the Joint Report was filed pursuant to the Court's order in circumstances where it was plain that it would precede the taking of the claimants' evidence. Secondly, the detail and scope of the objections were only made known to the applicants as they were about to call the expert evidence. Thirdly, the applicants had not yet tendered the Joint Report, and had proposed in any event to lead further evidence in chief from its authors. Finally, the State said that if the respondents' general or specific objections were upheld, it would not oppose the applicants having leave to adduce further, admissible, oral evidence from the authors. I further directed that after Dr Redmond and Dr Rumsey had been orally examined and cross-examined, the respondents would file notices of amended objections to take account of the oral evidence. I would in due course rule on any objections that were maintained. That course was followed.

12 Detailed oral evidence was taken from Dr Rumsey and Dr Redmond. Each author:

* identified the way in which the Joint Report had been assembled

* identified which parts were written by him

* said he had read and commented on the work of the other, and that all parts of the report, other than section 2.3, were collaborative efforts in the sense that they discussed what each had written and came to an agreed position either by accepting the other's draft or by modifying the draft

* said that whoever had responsibility for the initial draft of a segment, the opinions expressed in the final report were his opinions.

Dr Redmond said that the opinions and conclusions contained in the Joint Report (other than those in section 2.3) were his opinions and conclusions. Dr Rumsey said the same of the whole Report (ie including section 2.3). Section 2.3, dealing with linguistic evidence, was written by Dr Rumsey and contained his opinions and conclusions alone. The authors' recollection of who was responsible (at least initially) for the preparation of the various parts of the Joint Report did not entirely coincide. Dr Rumsey had better records than Dr Redmond as to the construction of the Joint Report (down to the detail of who wrote individual sentences in a paragraph), and where their accounts differ, I accept his evidence in preference to Dr Redmond's.

13 The State and the Group 2A respondents filed revised notices of objections to the Joint Report. The Group 2A respondents' objections were reduced from 338 to 326. The State's objections were not reduced. Having regard to the evidence in chief elicited from Dr Redmond and Dr Rumsey, the second and third bases for the blanket objection were not pursued, though they were not expressly abandoned.

THE FORM OF THE OBJECTIONS

14 The notices containing the objections are not very helpful. Most of the Group 2A respondents' objections take one of the following forms:

* no primary evidence to support conclusion or opinion. Basis

* no primary evidence to support conclusion or opinion. Hearsay

* no expressed or discernible basis for the conclusion or opinion

* basis

* hearsay.

Most of the first respondents' objections take one of the following forms:

* Form. Factual basis not stated

* Form. Factual basis not stated. Hearsay

* Form. Hearsay

* Form. Hearsay. Factual basis not disclosed or proved.

I was not taken to any part of the Joint Report to illustrate what was intended to be conveyed by these objections. This gave rise to particular difficulty in relation to the "basis" objection. It is not clear whether the complaint is that the applicants have not by admissible evidence established the facts they assert or assume (cf Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]), or whether it is that the authors have not set out the facts they assert or assume, with the result that the Court cannot determine whether the opinions and conclusions expressed are substantially based on their specialised knowledge which is in turn based on training study or experience (cf HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [39]). In these circumstances I have done my best to identify the real ground of each objection having regard to the context provided by the material the subject of the objection.

OPINION EVIDENCE

15 Opinion evidence in this Court is now regulated by ss 76 to 80 of the Evidence Act 1995 (Cth). Those sections are in part as follows:

"76. (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

...

77. The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

78. The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

79. If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

80. Evidence of an opinion is not inadmissible only because it is about:

(a) a fact in issue or an ultimate issue; or

(b) a matter of common knowledge."

THE BASIS RULE

16 The Law Reform Commission (the Commission) in its 1985 Interim Report No 26 Evidence vol 1 par 161 described the status of opinion evidence based on material that is not already admitted into evidence as "a matter of some controversy". The Commission referred to cases supporting the existence of what it called "the basis rule", but noted that they were at odds with the High Court's view in Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 649 that the consequence of not proving the factual basis for an expert's opinion is that the opinion may be of "little or no value, for part of the basis of it has gone. Each case depends on its own facts". The Commission then referred to Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 where Blackburn J, dealing with an anthropologist's report, said that the matter was one of weight rather than admissibility. In another part of its Report (vol 2, Appendix C par 107) the Commission said of Milirrpum:

"[Blackburn J's] approach, therefore, seems to be that if it is the usual practice of experts in a certain area to inform themselves by means of reliance upon the statements of others, or perhaps even upon the work and opinions of others, then those statements and that work should be accounted as sufficient to form the basis of the expert's opinion. However, the absence of admitted evidence of the basis for the opinions will go to weight, not admissibility."

The Commission concluded that there was uncertainty as to whether the basis rule operated as a criterion of admissibility or went merely to weight.

17 The Commission returned to the topic later in its Report (vol 1 pars 362-363). After again noting that it was a matter of some controversy whether an opinion that is based upon inadmissible or unadmitted material is itself admissible, it expressed the view that if there is a basis rule, "then the law must be criticised". The Commission went on:

"A strict implementation of a basis rule could eliminate, for example, opinions of doctors based upon opinions and assistance given by fellow doctors, nurses, technicians, laboratory analysts and even the patient's relatives. All of these constitute material customarily relied upon by doctors in the formation of their professional opinions. To deny the expert that opportunity, for forensic purposes, of the use of material from sources normally open to him in his professional life would be to drive an uncomfortable wedge between his professional judgments and those which are acceptable to the courts."

18 In this connection the Commission referred again to Milirrpum, and quoted from the opinion of Fauteax J in Wilband v The Queen (1967) 2 CCC 6 at 11:

"The evidence, in this case, indicates that to form an opinion according to recognised psychiatric procedures, the psychiatrist must consider all possible sources of information, including secondhand source information, the reliability, accuracy and significance of which are within the recognised scope of his professional activities, skill and training to evaluate. Hence, while ultimately his conclusion may rest, in part, on secondhand source material, it is none the less an opinion formed according to the recognised normal psychiatric procedures .... The value of a psychiatrist's opinion may be affected to the extent to which it may rest on secondhand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information but evidence of the opinion formed on the basis of that information."

19 Ultimately the Commission decided not to include a basis rule in its draft legislation. It gave as its reason (vol 1 par 750) a concern that such a rule would make it impossible

"to have opinion evidence which had as a significant component the opinions or the statements of others. This would preclude the tendering of evidence whose value is dependent upon material not before the court and, therefore, difficult for it to assess. While this would have its advantages, it would fail in its inflexibility to take account of the normal means by which experts generally form their opinions - by means of reports of technicians and assistants, consultation with colleagues and reliance on a host of extrinsic material and information that it would be an endless and unfruitful task with which to burden the courts."

Not including a "basis rule" would thus allow

"opinion evidence whose basis is not proved by admitted evidence prima facie to be brought before the court. Under this circumstance the weight to be accorded to it will be left to be determined by the tribunal of fact."

The Commission went on to consider two "areas of doubt":

"* whether evidence by the expert of the hearsay foundation of his opinion may be excluded and, if so, on what grounds; and

* whether an opinion based upon hearsay material should be open to exclusion and, if it is excluded, the grounds for its exclusion.

Such material will be able to be excluded by the operation of a relevance discretion. Thus, if it appears to the court that excessive time will be expended upon the reception of the evidence, or that its prejudicial effect substantially outweighs its probative value, the court not being able to assess the weight to be accorded to it, the testimony can be excluded. The same approach is proposed to control the admissibility of the expert's testimony of the facts on which his opinion is based where a party does not propose to, or does not, call direct evidence of the truth of the statements of fact relied upon by the expert."

20 Although the Law Reform Commission considered the better view to be that "no such rule" exists (vol 1 par 750), it was accepted as a common law requirement by Heydon JA in Makita. That is, for a person's opinion to be admissible, it must be based on facts stated by the witness and either proved by the witness or assumed by the witness and proved aliunde. Heydon JA said:

"59. If Professor Morton's report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions.

...

64. The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are `sufficiently like' the matters established `to render the opinion of the expert of any value', even though they may not correspond `with complete precision', the opinion will be admissible and material .... One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved."

21 Section 79 imposes three conditions for the non-application of the opinion rule contained in s 76:

* the person whose opinion is in question must have specialised knowledge

* that specialised knowledge must be based on the person's training, study or experience

* the person's opinion must be wholly or substantially based on that specialised knowledge.

22 The "basis rule" does not feature in s 79. The Australian Law Reform Commission explained why. That the legislation does not include any common law "basis" requirement is now established by the cases. See Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374 and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [10]. See also Guide Dog Owners' & Friends' Association Inc v Guide Dog Association of New South Wales (1998) 154 ALR 527 at 531. Cf Makita, which is discussed in pars [24] to [27] below.

23 While the legislation does not incorporate a "basis rule", an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the court to determine whether the opinion is wholly or substantially based on the expert's specialised knowledge which in turn is based on training, study or experience. See HG v The Queen at [39] per Gleeson CJ. In Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 at [23] the Full Court said that a report on which an opinion is recorded should express the reasoning of its author in a way that shows that the opinion is based on particular specialised knowledge.

24 In Makita at [85], speaking of s 79 of the Evidence Act 1995 (NSW) (which is in the same terms as s 79 of the Commonwealth Act), Heydon JA said:

"In short, if evidence tendered as expert opinion is to be admissible, it must be agreed or demonstrated that there is a field of `specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be `wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts `observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on `assumed' or `accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of `specialised knowledge' in which the witness is expert by reason of `training, study or experience', and on which the opinion is `wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on `a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.'"

It is the fourth requirement set out by his Honour that is relevant here:

"so far as the opinion is based on facts `observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on `assumed' or `accepted' facts, they must be identified and proved in some other way."

That seems to me, with respect, to be restoring the basis rule. The reason his Honour gave for requiring this and the other presently immaterial requirements is that "if all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge". While that may be so with respect to other requirements, the expert's exposure of the facts upon which the opinion is based is sufficient to enable the relevant enquiry to be carried out. That enquiry is not dependent on proof of the existence of those facts.

25 HG v The Queen does not support the supposed requirement. After stating that an expert should differentiate between the assumed facts upon which the opinion is based and the opinion itself, Gleeson CJ said at [39]:

"Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question."

His Honour does not thereby require, as a condition of admissibility, that the assumed facts on which the opinion is based are established by the evidence. If at the end of the evidence they are not established, the weight to be accorded the opinion will be reduced, perhaps to nil. But that is not a matter of admissibility.

26 In Sydneywide Distributors, after quoting the passage from Makita set out in [24], Weinberg and Dowsett JJ said [at 87]:

"[Heydon JA's] use of the phrase `strictly speaking' in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence."

27 Branson J was of substantially the same opinion. At [16] her Honour said:

"Further, the requirement that an expert opinion be wholly or substantially based on the witness's specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) base for the opinion. Were the position otherwise the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge."

See also at [7] where her Honour expressed the view that Heydon JA's approach should be "understood as a counsel of perfection", and that a reading of his reasons as a whole revealed that he recognised that in the context of an actual trial, the issue of admissibility of evidence tendered as expert opinion evidence "may not be able to be addressed in the way outlined in the above paragraph".

HEARSAY BY EXPERTS

28 Section 59(1) of the Evidence Act provides

"Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation."

The expression "previous representation" is defined as

"a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced."

Pausing there, all statements made to the authors of the Joint Report upon the basis of which they formed their opinions or came to their conclusions are previous representations. Section 60 provides:

"The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation."

29 At common law, where evidence of a previous representation is admitted for a non-hearsay purpose, it may only be used for that purpose. It may not be used to prove the existence of an asserted fact, unless it falls within an exception to the hearsay rule. The Commission explained the reasoning behind s 60 (Interim Report No 26 vol 1 par 685):

"Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court's assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose - eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert's opinion - will be admissible also as evidence of the facts stated."

30 In Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 at [39]- [40] the High Court said:

"[The Commission's] recommendations must be understood in the light of its criticism of the result that follows from the application of the common law rule against hearsay to the evidence of experts. At common law, an expert (such as a medical practitioner) may give evidence about the factual basis for the opinion expressed (such as the history given by the patient) only as evidence showing the foundation for that opinion, not as evidence of the truth of the facts recounted.

It is then clear that s 60 was intended to work a considerable change to the common law."

In that case a witness at the appellant's trial made out of court statements which included a report of confessional statements made by the accused to the witness. At the trial the witness denied that he had heard the confessional statements. Evidence of the out of court statements was admitted under s 60 as evidence of the truth of the statements. The High Court held that s 60 did not permit their admission. The question for decision on the appeal was "whether s 60 permitted an out of court statement that is itself a report of what someone else said, to be used as proof of the truth of what was reportedly said" (at [3]). After having said that s 60 was intended to work a considerable change to the common law, the Court continued at [40]:

"But there is no basis, whether in the considerations which we have mentioned as having influenced the Commission or otherwise, for concluding that s 60 was intended to provide a gateway for the proof of any form of hearsay, however remote. As has been indicated earlier in these reasons, that that was not intended is made plain by the terms of s 59 to which s 60 is an exception."

31 In Quick v Stoland at 382 Finkelstein J said:

"In many cases the extraordinary effect of s 60 would be unfair to the party against whom the evidence is tendered. For example, where the hearsay involves `facts' that are in conflict or `facts' that are unreliable it is quite unsatisfactory for those `facts' to be proved by the operation of s 60. One way in which this problem can be overcome is by an order under s 136 limiting the use to be made of that evidence. In the case of evidence given by an expert, he or she can be required to express his opinion in answer to a hypothetical question leaving it to the party calling the expert to prove the facts upon which the opinion is based."

Section 136 provides:

"The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing."

32 Daniel v Western Australia (2000) 178 ALR 542 concerned the evidence of an anthropologist in a native title case. The witness was being examined on his anthropological reports, none of which had yet been admitted into evidence. In one of the reports the witness expressed the opinion that "the Burrup [Peninsula] is Ngarluma land and all members of the Ngarluma language group have interests in it under Aboriginal law". The witness was asked who occupied the Burrup. The question was objected to by the respondents, who anticipated that the response would be in terms similar to the passage in the witness's report. The objection took this form:

* the opinion was based on hearsay evidence of out of court statements by claimants who were available to give evidence

* consequently admission of the opinion would deny the respondents the opportunity of cross-examination on the hearsay evidence

* the opinion sought to be elicited was not based wholly or substantially upon the specialised knowledge of the witness.

33 The hearsay material identified in the report about which claimants could have given evidence was in various forms such as:

* one of the protagonists in a discussion about ownership of the Burrup produced a report to support a contention that the Yapurrara were the real owners

* there was agreement among the claimants that the Burrup's owners could be found from among the Ngarluma group

* members of the Ngurinyungu descent group assert rights through their traditional ownership of neighbouring land

* claimants recall that Willy James identified as a Ngarluma person with rights in Ngarluma land

* a third claim to the Burrup is made on behalf of the Ngarluma people generally through David Daniel who asserts that he is entitled to rights in land in the Roeburne region because he was born and initiated there

* the Ngarluma people strongly assert ownership of the land

* deference was shown to the right of David Daniel to speak about the Burrup, particularly as his claim had the support of senior claimants like the late Yilbi Warrie.

The applicants denied that these matters were not otherwise the subject of evidence.

34 Nicholson J reviewed the case law and from it distilled a number of propositions, some of which it is useful to set out:

"(7) Hearsay evidence from which the [expert's] opinion is inferred, will (subject to the application of ss 135 and 136) qualify for admission pursuant to s 56 as relevant to the purpose of the basis upon which the expert holds the opinion so that its weight can be assessed. It could then be used for a hearsay purpose as a consequence of the application of s 60.

(8) Admission of hearsay evidence with that consequence under s 60 leads inevitably to the need for the court to consider whether that admission should be limited under s 136 to the stated purpose of testing the knowledge on which the opinion is based.

(9) Admission with the consequences flowing from s 60 would not occur if the court considered omission should be precluded in exercise of its discretion under s 135. It would seem that hearsay evidence comprising a statement as to the existence of native title made to the expert by a party not called (and being on an issue central to the case) would qualify for exclusion or admission limited to testing the opinion in the manner required by s 78."

35 His Honour then considered whether the hearsay material should be excluded under s 135. That section provides that

"The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time."

Nicholson J concluded that the material should first be considered for limited admission under s 136 for the purpose of determining whether the opinion of the expert has or has not qualified under s 79, and that a ruling on the application of s 135 should be held over until that issue had been resolved. His Honour then observed, in relation to s 136, that there is a danger that use of the hearsay material might be unfairly prejudicial to a party who has not had the opportunity to cross-examine on it. It might be particularly unfair where it consisted of evidence by a claimant party not called in relation to the central issues in the case. Further, it had the potential to be misleading or confusing because there would be no proper forensic basis upon which to weigh it in relation to evidence called in the normal course which had been the subject of cross-examination. His Honour then invited the parties to apply for a limitation under s 136. He then declined to order, under s 82(1) of the Native Title Act 1993 (Cth), that the rules of evidence should not apply to the hearsay material in question.

36 In Lardil v Queensland [2000] FCA 1548 objection was taken to parts of an anthropological report containing statements made to the expert by a number of named Aboriginals as to their culture, laws, practices, beliefs and their social structures and relationships. The respondents submitted that the hearsay statements made by those who were living at the time of the trial, and who were either not called to give evidence or who were called and did not give evidence in terms of the statements contained in the report, should under s 136 be admitted for the limited purpose of showing the foundation for the expert's report and not to prove the truth of the statements. In the alternative it was submitted that the rules of evidence should be dispensed with in relation to the hearsay material under s 82 of the Native Title Act. Cooper J stressed that s 60 is not concerned with the weight to be given to hearsay material which may, by that section, be relied on to prove the fact to be asserted by the representation. The weight to be accorded to any particular evidence remains a matter for the court: Quick v Stoland at 375-376; Welsh v The Queen (1996) 90 A Crim R 364 at 369, 371. His Honour said at [17]:

"Included in the circumstances to be considered in determining what weight should be given to the material, will be the circumstances in which the statement was made, whether or not that which was said was within the personal knowledge of the person making the statement, the likelihood or otherwise that the statement has been fabricated, whether the maker of the statement has been called to give evidence, and if so, the nature and effect of that evidence, including whether the maker has been cross-examined on the statement or generally, and whether the respondents had had a real opportunity to test the accuracy of the matters asserted in the report. These are not the only circumstances which need to be taken into account. Much will depend on the relevant circumstances identified in each particular proceeding. However, what needs to be kept clearly in mind is that s 60 of the Act does not endow hearsay evidence with any greater weight than the circumstances warrant; it merely means that there is some evidence of the fact asserted: Welsh at 371."

His Honour declined to limit under s 136 the use to which the hearsay material could be used, but said that this refusal would not prevent the respondents from contending that in the circumstances of the case the hearsay statements should be given little or no weight and should not be relied on. Those circumstances included the fact that no attempt had been made to tender original evidence of the statements when the witnesses gave evidence, the failure to call some witnesses at all, and that certain oral evidence was inconsistent with the previous hearsay statement. For the same reasons his Honour declined to dispense with the rules of evidence in relation to the statements pursuant to s 82 of the Native Title Act.

37 Because any common law basis rule has not been imported into s 79, so that at the stage of admissibility there is no requirement that the facts upon which the expert's opinion has been formed be supported by admissible evidence, the fact that an expert's opinion is based in whole or in part on a "fact" supported by hearsay, is not a ground upon which the opinion must be rejected. In any event, an expert's opinion that is based on "facts" supported by hearsay is prima facie admissible under s 60.

38 Subject to the application of ss 135 and 136, hearsay material on which an expert's opinion is based will qualify for admission as relevant to the basis upon which the expert holds the opinion ("a purpose other than proof of the fact intended to be asserted by the representation"). If it qualifies, it can then be used as proof of the fact intended to be asserted. That is the view that has been taken in relation to expert evidence in Daniel, Quick v Stoland, Lardil and Harrington-Smith v Western Australia (No 7) [2003] FCA 893. See also Welsh v The Queen at 368 and Lee v The Queen at 604. The weight to be accorded to that evidence is a matter for the court.

CONCLUSION ON BASIS AND EXPERT HEARSAY

39 It will be apparent from what I have said that:

* the opinion provisions of the Act do not incorporate a basis rule requiring the facts upon which an opinion or conclusion is based to be established by admissible evidence

* the weight to be accorded an opinion or conclusion that is founded on a fact that is not established by admissible evidence may thereby be reduced

* while the Act does not contain a basis rule in the sense described above, the fact that hearsay material may lie behind facts ascribed or assumed does not spell inadmissibility; rather it goes to the weight to be accorded the expert's opinion or conclusion

* an expert's opinion that is based on hearsay is admissible under s 60 in proof of the fact intended to be asserted, though the weight to be accorded the opinion may be reduced by the hearsay quality of the material, and the hearsay material or the opinion may be excluded under s 135 or s 136

* remote hearsay is not admissible under s 60 in proof of the fact intended to be asserted.

OTHER OBJECTIONS

No primary evidence

40 It is apparent from the Group 2A respondents' objection document as a whole that this is a complaint that the claimants did not give evidence supporting the experts' conclusions or opinions. In relation to some passages the applicant and the respondents were in disagreement as to whether there was supporting Aboriginal evidence. It is appropriate to resolve such a dispute in final submissions rather than on an objection to admissibility. In any event, even if there was no supporting Aboriginal evidence, that does not result in the exclusion of the experts' evidence. As I have said, the Joint Report was filed before any Aboriginal evidence had been heard. The intent behind Lee J's order was that the Aboriginal evidence would be later in time. It was nevertheless contemplated by the order that the Joint Report would be used in evidence. In those circumstances, I reject the submission that parts of the Joint Report must be excluded because they are based on data then available to the experts rather than on evidence that did not exist when it was compiled. The weight to be accorded particular conclusions or opinions may be affected by the fact that there is no Aboriginal evidence to support it. But that is a different matter.

Gap filling

41 A common objection takes the form - "This matter was the subject of primary evidence and restatement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence". Where the experts cover the same ground as Aboriginal evidence, there is no "gap". The evidence may not be necessary. It may be entitled to less weight than the Aboriginal evidence. But it is not inadmissible merely because it is in the same terms as that evidence. It is to be remembered that the Joint Report was filed before the Aboriginal evidence was given. Where the experts cover a matter not subsequently the subject of Aboriginal evidence, there is no "gap" in the latter in the ordinary sense of the word. Rather, the later evidence is less extensive than the earlier. But that does not render inadmissible the earlier evidence to the extent that it is more extensive. However, given that the applicants were aware of the ambit of the expert evidence, the fact that Aboriginal evidence did not cover the whole of the relevant field may deprive it of much weight. But it does not render it inadmissible.

Dodnun objections

42 Section 3.5 of the Report selects a community within the claim area to illustrate the authors' general contention, made earlier in the section, that claimants have multiple cross-cutting links to land. Dodnun Aboriginal community is situated on Mt Elizabeth Station. It was selected because Dr Redmond spent a lengthy period in residence there, and immersed himself, and later his family, in the community, developing close links with many claimants there. The objection taken is - "to the extent that this is primary evidence, it could have been given as the Court went to Dodnun. To the extent that opinions or conclusions are based upon these matters, there is no basis for such conclusions or opinions". The material in s 3.5 is detailed and dense. In a theoretical sense, the factual basis for the opinions expressed could have been given by Aboriginal witnesses at Dodnun. The Court took evidence on country over a period of ten days. It was not possible to visit all the places the applicants would have liked the Court to have visited. Nor was it possible for the Court to remain at particular locations for as long as the applicants would have wished. Because of the long distances involved in getting to and from some sites, the need to depart sites punctually so as to visit all sites set down for the day, and to finish evidence on time so as to enable the helicopters to depart in daylight, evidence at some sites was curtailed. That was the case at Dodnun. Some evidence was taken there, from Scotty Martin. Given the timetable that had been drawn up, it would have been impossible in the time available for Aboriginal evidence to have covered even a small part of the material covered by s 3.5. A lot of the experts' factual material is contained in other parts of the Aboriginal evidence, though not specific to Dodnun. What is or is not so covered is appropriately the subject of closing submissions, so as to enable the Court, if appropriate, to attach more weight to matters covered by Aboriginal evidence than to matters covered only by the experts. The Dodnun objection does not go to admissibility.

Relevance objection

43 WAFIC has objected to the admission of material relating to land outside the claim area. Similar objections have been disallowed in relation to witnesses other than those the subject of this ruling. Evidence relating to areas within the Wanjina-Wunggurr region, though outside the claim area, is relevant because it may throw some light on what happens in the claim area. The best evidence is what occurs in the claim area. But given the way the applicants put their case, this relevance objection cannot succeed. It must remain a question of weight.

Other grounds

44 There are the occasional grounds not covered by what I have said about "basis", hearsay and the five preceding grounds. I will not comment on them here, but will deal with them in the Tables referred to in the next paragraph.

RULINGS ON JOINT REPORT

45 Pages 1 to 23 of the Tables annexed to and forming part of these reasons contain in the first column the paragraph numbers of the material objected to, in the second column the ground or grounds of the objection, and in the third column my ruling on the objection. The general discussion in [15]-[44] of the range of objections taken enables them to be dealt with in this summary fashion. The Tables do not deal with objections ruled on in the course of the hearing.

RULINGS ON OTHER EXPERT REPORTS

46 Objections to the reports of other experts took the same form as those to the Joint Report. Pages 24 to 34 of the Tables contain rulings on those objections. Again they do not deal with objections ruled on in the course of the hearing.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 8 December 2003

Counsel for the Applicants:	R Blowes
Solicitor for the Applicants:	Kimberley Land Council
Counsel for the First Respondent:	V Hughston SC and G Ranson
Solicitor for the First Respondent:	Crown Solicitor for the State of Western Australia
Counsel for the Second Respondent:	M Gregory
Solicitors for the Second Respondent:	Minter Ellison
Counsel for the Group 2A Respondents:	G Donaldson
Solicitors for the Group 2A Respondents:	Blake Dawson Waldron
Counsel for the Third Respondent:	M McKenna
Solicitors for the Third Respondent	Hunt & Humphry
Date of Ruling:	8 December 2003

JOINT REPORT - OBJECTIONS RULING

A. GROUP 2A RESPONDENTS OBJECTIONS

(1) Initial Objections

Paragraph	Grounds	Ruling
19	3rd, 4th & 5th sentences - no expressed or discernible basis for the conclusion or opinion	Weight
20	Speculation. Basis	Unhelpful speculation
25	2nd sentence to end - no expressed or discernible basis for the conclusion or opinion	Weight
27	No primary evidence to support conclusion or opinion. Basis	Report preceded Aboriginal evidence. Second sentence onwards provides factual basis for opinion in first sentence
28	Final 17 words - no primary evidence to support conclusion or opinion. Basis	Report preceded Aboriginal evidence. Weight.
30	No primary evidence to support conclusion or opinion. Basis	Report preceded Aboriginal evidence. This is the basis for the last sentence in par 29
65	3rd last line from the words "... and these particular Wanjina ..." to the end of the paragraph - no expressed or discernible basis for the conclusion or opinion	Repaired in Redmond oral examination. Source identified. Weight.
151	1st sentence - no expressed or discernible basis for the conclusion or opinion	Repaired in Redmond oral examination. Based on ensuing paragraphs. Further, the basis objection is unfounded. The authors' opinions and conclusions are set out in section 3.4. The preceding paragraphs are the factual basis therefor. There is no requirement that the facts be based on admissible evidence in the Report or elsewhere. The facts relied on for opinions must be stated, and they are. Weight.

152	No primary evidence to support conclusion or opinion. Basis	Report preceded Aboriginal evidence. Otherwise a hearsay objection. Claimants are the informants. Weight. Further, see ruling on par 151.
154	No primary evidence to support conclusion or opinion. Impossible to determine basis.	Report preceded Aboriginal evidence. Insofar as hearsay, weight. Opinion/conclusion based on examples given in par 154. Further, see ruling on par 151.
155	Other than the first sentence - no primary evidence to support conclusion or opinion. Hearsay.	Report preceded Aboriginal evidence. To be inferred that Keith Nenowatt and Paddy Neowarra are the informants. Weight.
157	Meaningless and incoherent. To the extent that it is comprehensible - basis.	May require interpretation, but not thereby inadmissible. Basis for opinion in last sentence appears in the bracketed sections preceding it. Further, see ruling on par 151.
158	1st 6 sentences - no primary evidence to support conclusion or opinion. Basis. Unattributed hearsay.	Report preceded Aboriginal evidence. Really a hearsay objection. Weight.
158	from 9th sentence to end - no primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Really a hearsay objection. Weight. Further, see ruling on par 151
159	3rd sentence to end - no primary evidence to support conclusion or opinion	Report preceded Aboriginal evidence. Factual basis is in par 152. Weight. Further, see ruling on par 151
161	No primary evidence to support conclusion or opinion. Basis - said by whom? Which adults and children?	Report preceded Aboriginal evidence. Really a hearsay objection. Paddy Neowarra is an informant. Weight.
162	Other than last sentence - this matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
162	Final sentence - no primary evidence to support conclusion or opinion.	Report preceded Aboriginal evidence. See ruling on par 151
163	No primary evidence to support conclusion or opinion. Evidence of these facts cannot be given by the authors.	Report preceded Aboriginal evidence. Sources are given. Hearsay. Weight.
164	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Field work. Observations by authors. Hearsay. Weight. Further, see ruling on par 151.
165	No primary evidence to support conclusion or opinion. Attributed by whom?	Report preceded Aboriginal evidence. Attribution is by claimants. Weight.
166	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Really a hearsay objection. Weight.
167	Final 2 sentences - no primary evidence to support conclusion or opinion.	Report preceded Aboriginal evidence. See ruling on par 151.
169	No expressed or discernible basis for the conclusion or opinion. This opinion/conclusion consequentially fails.	Basis in preceding examples. See ruling on par 151.
172	5th to 8th sentences - no primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Field work observations by authors. Further, see ruling on par 151.
172	9th and 10th sentences - this matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Said by whom?	May be unnecessary, but not thereby inadmissible. Hearsay. Weight.
173	3rd sentence - no primary evidence to support conclusion or opinion. This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	Report preceded Aboriginal evidence. May be unnecessary, but not thereby inadmissible. This sentence is an asserted fact in support of opinion in first sentence. Further, see ruling on par 151.
174	Final sentence - no expressed or discernible basis for the conclusion or opinion.	Opinion based on earlier part of paragraph. Further, see ruling on par 151.
175	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Second sentence supports opinion in first. Further, see ruling on par 151.
176	No primary evidence to support conclusion or opinion. No expressed or discernible basis for the conclusion or opinion.	Report preceded Aboriginal evidence. Basis is in pars 174 and 175. See "in this way" in par 176. Further, see ruling on par 151.
178	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. The opinion is in the last sentence. The factual basis precedes it. Further, see ruling on par 151.
179	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Field work and genealogies. Further, see ruling on par 151.
180	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. See ruling on par 151.
181	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. See ruling on par 151.
182	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Facts on which opinion is based are stated earlier. Further, see ruling on par 151.
186	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. See ruling on par 151.
190	3rd sentence to end - no primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. See ruling on par 151.
191	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
194	no expressed or discernible basis for the conclusion or opinion.	Really a hearsay objection. Weight.
195	1st sentence - no basis for the conclusion.	Basis is in s 3.1.
197	No expressed or discernible basis for the conclusion or opinion.	Facts, not conclusion or opinion. See ruling on par 151.
198	No expressed or discernible basis for the conclusion or opinion.	Facts, not conclusion or opinion. An example of what is said in par 197. Further, see ruling on par 151.
199	Basis	Facts, not conclusion or opinion. An example of what is said in par 197. Further, see ruling on par 151.
201	1st 6 sentences - no expressed or discernible basis for the conclusion or opinion.	Basis is in balance of paragraph. Rumsey's linguistic expertise.
203	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
205	Point 1 - no expressed or discernible basis for the conclusion or opinion.	Basis is what appears in section 3. Further, see ruling on par 151.
Part 3.5	To the extent that this is primary evidence, it could have been given as the court went to Dodnun. To the extent that opinions or conclusions are based upon these matters, there is no basis for such conclusions or opinions.	See "Dodnun Objection" in par [41] of reasons.
214	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Really a hearsay objection. Weight.
222	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. These are facts, not opinion or conclusion. Redmond lived at Dodnun for 12 months. The authors' conclusions and opinions are set out in s 3.5.3.
223	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. See ruling on par 222.
224	No expressed or discernible basis for the conclusion or opinion.	Report preceded Aboriginal evidence. See ruling on par 222.
225	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
228	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. Really a hearsay objection. To be inferred that Paddy Wama is informant. Weight. Further, see ruling on par 222.
229	No expressed or discernible basis for the conclusion or opinion.	First sentence unexceptionable. To be inferred that Maudie White is informant. Weight. Further, see ruling on par 222.
230	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. Authors give examples, followed by their explanation of their significance. Weight
231	No expressed or discernible basis for the conclusion or opinion.	See ruling on par 222.
232	No expressed or discernible basis for the conclusion or opinion.	Opinion based on preceding facts.
233	Hearsay	Weight
234	No expressed or discernible basis for the conclusion or opinion.	No opinion or conclusion expressed. All descriptive. Further, see ruling on par 222
235	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight
236	Other than 1st 2 sentences - no expressed or discernible basis for the conclusion or opinion.	Explanation by expert of connections referred to in second sentence. Further, see ruling on par 222.
237	Hearsay	To be inferred that Rastus is informant. Weight
238	Hearsay	To be inferred that Rastus is informant. Weight
241	No primary evidence to support conclusion or opinion	Report preceded Aboriginal evidence.
242	From the words on the 4th line "... a man may also ..." to the end of the paragraph - no primary evidence to support conclusion or opinion.	Report preceded Aboriginal evidence.
243	No primary evidence to support conclusion or opinion.	Report preceded Aboriginal evidence.
244	No expressed or discernible basis for the conclusion or opinion.	Conclusion based on preceding paragraphs
245	No expressed or discernible basis for the conclusion or opinion.	Really a hearsay point. Weight
246	No expressed or discernible basis for the conclusion or opinion.	See ruling on par 222.
247	No expressed or discernible basis for the conclusion or opinion.	See ruling on par 222.
248	No expressed or discernible basis for the conclusion or opinion.	See ruling on par 222.
249	No expressed or discernible basis for the conclusion or opinion.	Really a hearsay objection. Weight. Further, see ruling on par 222.
250	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight
251	No expressed or discernible basis for the conclusion or opinion.	Really a hearsay point. To be inferred that Miriji is informant. Weight
252	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight
253	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight
254	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight
255	No expressed or discernible basis for the conclusion or opinion.	Observations and field work at Dodnun community. Further, see ruling on par 222.
256	No expressed or discernible basis for the conclusion or opinion.	No opinion or conclusion involved. Basically a factual, descriptive account.
257	Other than final sentence - This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
257	Final sentence - no basis for the conclusion or opinion.	Facts and conclusion are set out. Proof of facts not required for admissibility. See ruling on par 222.
259	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
260	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
261	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
262	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
264	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
265	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
266	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight.
277	First 9 words of first sentence - no expressed or discernible basis for the conclusion or opinion.	Observation, historical references, field work.
290	No expressed or discernible basis for the conclusion or opinion.	Statement of fact, not opinion or conclusion. Redmond travelled there.
292	3rd & 4th sentences - no expressed or discernible basis for the conclusion or opinion.	Statement of fact, not opinion or conclusion.
293	No expressed or discernible basis for the conclusion or opinion.	Conclusion based on fact.
294	Second and third sentences - this matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Status of Dann proved by him.
295	Second sentence - hearsay. This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence.	May be unnecessary, but not thereby inadmissible. Weight
295	Final two sentences - hearsay. Basis.	Really a hearsay objection. Weight.
298	No expressed or discernible basis for the conclusion or opinion.	1st sentence unexceptionable. As to balance, really a hearsay objection. Weight. Most of this paragraph is proved by Jack Dann.
302	From the words, "... and he was himself married ..." on the 3rd last line to the end - no expressed or discernible basis for the conclusion or opinion.	Really a hearsay objection. Weight. Last sentence is proved by Jack Dann.
303	No expressed or discernible basis for the conclusion or opinion	Statement of fact not opinion or conclusion. 1st sentence proved by Barney U. Second sentence - weight.
304	No expressed or discernible basis for the conclusion or opinion	Really a hearsay objection. Weight. Much of this paragraph is proved by Eileen, Mandy's daughter. T 4273 onwards
305	No expressed or discernible basis for the conclusion or opinion	Observation, field work. Facts, not opinions or conclusions.
311	1st sentence - this matter was the subject of primary evidence and restatement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence	May be unnecessary, but not thereby inadmissible. Weight.
311	2nd & 3rd sentences - no expressed or discernible basis for the conclusion or opinion	Observation, field work. Facts, not opinions or conclusions.
311	Final two sentences - no expressed or discernible basis for the conclusion or opinion	Observation, field work. Facts, not opinions or conclusions.
315	No expressed or discernible basis for the conclusion or opinion	Observation, field work. Facts, not opinions or conclusions.
318	Hearsay. Basis	Facts, not opinions or conclusions. Hearsay. Weight
319	No expressed or discernible basis for the conclusion or opinion	Observation, field work. Facts, not opinions or conclusions.
320	No expressed or discernible basis for the conclusion or opinion	Observation, field work. Facts, not opinions or conclusions.
321	No expressed or discernible basis for the conclusion or opinion.	Observation, field work. Facts, not opinions or conclusions.
322	No expressed or discernible basis for the conclusion or opinion.	Observation, field work. Facts, not opinions or conclusions.
324	Final 2 sentences - no expressed or discernible basis for the conclusion or opinion.	Observation, field work. Facts, not opinions or conclusions.
325	No expressed or discernible basis for the conclusion or opinion.	Observation, field work. Facts, not opinions or conclusions.
327	2nd sentence - no expressed or discernible basis for the conclusion or opinion.	Opinion based on stated facts
345	Final 2 sentences - hearsay.	Weight
358	2nd to 5th sentences - no expressed or discernible basis for the conclusion or opinion.	Really a hearsay objection. Weight.
358	6th sentence - no primary evidence to support conclusion or opinion. Basis.	Report prepared before Aboriginal evidence. To be inferred that Paddy Neowarra is the informant. Weight
358	7th sentence to end - hearsay.	Weight
362	1st sentence - hearsay	Weight
362	3rd to 6th sentences - no expressed or discernible basis for the conclusion or opinion	Observations and field work. Facts, not conclusion or opinion. Partly hearsay. Weight
365	2nd sentence to end - hearsay. Basis.	Footnote 52 - Bunuba people sufficiently identified. Ngarynyin people named. Weight.
366	Hearsay. Basis.	Really a hearsay objection only. Weight.
367	Hearsay. Basis.	Really a hearsay objection only. Ngarynyin people are named in par 365.
389	2nd sentence - hearsay	Unnamed claimants "suggests" - weight (if any)
390	Hearsay. No expressed or discernible basis for the conclusion or opinion	Unnamed claimants "suggests" - weight (if any)
391	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. Weight. Not a basis point. Opinion in first sentence. Facts in ensuing sentences.
392	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Mr King was available to give evidence. Basis.	May be unnecessary, but not thereby inadmissible. Otherwise, really a hearsay objection. Weight in light of fact that King was available but did not give evidence.
397	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Observations and field work of authors. Not a basis point. Conclusion preceded by observed facts
398	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. Observations of authors. Not a basis point.
399	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Observations of authors. Not a basis point.
400	Mr Neowarra gave evidence. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. If any gaps - weight in view of the fact that Neowarra gave evidence.
403	Final sentence - no primary evidence to support conclusion or opinion.	Report preceded Aboriginal evidence.
404	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. Really a hearsay objection rather than basis. Unidentified informants. Weight.
405	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. Jack Dann not mention Wamarn. A gap. Weight.
406	Other than the 1st sentence - this matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. Partly proved by Paddy Neowarra:
410	This matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis.	May be unnecessary, but not thereby inadmissible. Not a basis point. Weight.
411	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Really a hearsay objection. Unidentified informants. Weight.
412	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Really a hearsay objection. Unidentified informants. Weight.
413	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Really a hearsay objection. Unidentified informants. Weight.
416	Unless all instances are outlined in full, there is an insufficient basis for the conclusion or opinion.	Weight.
418	1st 2 sentences - no primary evidence to support conclusion or opinion.	Report preceded Aboriginal evidence. Unnamed informants. Weight.
418	Rest - this matter was the subject of primary evidence and re-statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Hearsay. Basis.	May be unnecessary, but not thereby inadmissible. If a gap, weight. Tiger Moore proves parts of this paragraph: T226, 228. Hearsay - weight.
419	No expressed or discernible basis for the conclusion or opinion.	Generalised statements of fact, unsupported by examples. Weight (if any)
421	No primary evidence to support conclusion or opinion. Basis.	Report preceded Aboriginal evidence. Example given. Weight.
422	No primary evidence to support conclusion or opinion. Basis.	Really a hearsay point. Unidentified informants. Weight (if any)
423	No primary evidence to support conclusion or opinion. Basis.	Really a hearsay point. Unidentified informants. Weight (if any)

(2) Fresh Objections

(i) Joint Preface Points

1	Unclear what secondary sources, personal communications etc to whom	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
3	Basis for statement re exclusive and distinctive relationship	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
3	Appears to be meaningless	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
4	The "certain" beliefs etc are not stated. Accordingly, the statement is vague and unclear	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
4	Final sentence - associated by whom?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
5	How demonstrated?; what relationship to the region?; what observance and acknowledgment?; what inherited body of laws and customs?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
6	Basis for conclusion/opinion (?) of long period of occupation	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
6	Basis for whatever this paragraph is - ie conclusion or opinion (?)	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
7	What is the greater or lesser extent? Note the submission of Mr Hughston as to joint opinions	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
8	Basis for conclusion/opinion (?) that the laws and customs are observed. Basis for the conclusion/opinion (?) when some only of the authors have read some of the secondary material	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
9	Which do not? How does this affect the extent to which the secondary sources are viewed as authoritative?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
10	Which secondary sources are relevant? Why are some irrelevant? What primary research? Which are "most" cases? Which are the "few" cases? Which present members?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
11	Which data? Which secondary material? Which primary research (and by whom)? What is meant by "substantial"?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
12	Basis?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
13	Which sites? What is the form of recognition? Which claimants? Which sites are mentioned in which secondary sources? What mapping? What sites? What primary research? How has it "helped"?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
14	Which claimants? Which forbears? What are the laws and customs referred to? Which secondary sources?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
15	Basis. Relevance.	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
17	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
18	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
19	Basis. Which sources?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
20	Basis. What primary research? What mapping? Basis for conclusion/opinion (?)?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
21	Basis. What genealogical material?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
22	Basis. What research? Basis for opinion/conclusion (?) as to continuity. Basis for opinion/conclusion (?) as to "substantial".	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
23	Basis. Vagueness - what is "high degree"?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
24	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
25	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
26	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
27	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
28	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
29	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
30	Basis. Hearsay. What form of hearsay is this?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
31	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
32	Basis. What circumstances?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
33	Basis	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
34	Basis. What is the variation? Which sources? What primary research? Why prefer one source to the other? Why is this the "appearance"?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.
35	Basis. What evidence? What primary research?	The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.

(ii) Executive Summary

Relevance. Basis

This is little more than a guide through the Report. May be used as an aide memoire, but not as evidence.

(iii) Report

10	1st sentence - basis for conclusion/opinion (?) re "traditional connections"	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
10	2nd sentence - basis for conclusion/opinion (?) re "traditional association"	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
10	3rd sentence - basis	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
10	4th sentence - basis. is this opinion/conclusion (?) based solely on McCarthy or otherwise?	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
10	5th sentence - basis	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
10	6th sentence - basis	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
10	7th sentence - basis. Is this hearsay; personal observation; a mixture; of/by whom?	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
10	8th sentence - basis. Is it solely the discussion at 2.4 and 3?	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
10	Rest - basis	An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence.
11	1st sentence - basis. What is basis for exemplification? Why select some?	Explanatory, not evidence.
12	1st sentence - basis	A matter for submissions, not evidence.
12	2nd sentence - basis. Which claimants? When? Which consultants?	A matter for submissions, not evidence.
12	Rest - basis.	Matters for submissions. Explanation of claimants' case. Not a matter for expert evidence.
14	1st sentence - basis	Authors qualified to make this statement
17	3rd sentence - meaningless when read with the footnote (at p 141)	Difficult to understand, but not thereby inadmissible. A matter for submissions.
Footnote 3	Basis	Rumsey qualified to speak about language.
17	5th sentence - basis. What is the expertise of the author/s(?) to express this opinion/conclusion?	Observation, field work.
17	6th sentence - basis	Objection not survive preceding rulings.
17	7th sentence - basis	Basis stated in s 2.1.
19	6th sentence - basis	Not a basis point. A simple comparison.
21	4th sentence to end - basis. Why this evidence is provided in this form when primary evidence was led	May be unnecessary, but not thereby inadmissible.
24	1st sentence - basis. Relevance if this is "very broad"	Weight.
24	2nd sentence - basis	Basis is in the ensuing Rumsey facts.
24	3rd sentence - basis. Is this evidence of Dr Rumsey only or of Dr Redmond also?	Dr Rumsey only.
26	Basis. Why this evidence is provided in this form when primary evidence was led.	May be unnecessary, but not thereby inadmissible.
28	1st sentence - basis for conclusion/opinion(?) that this is celebrated in a form or made evident	Evident in the paragraph as a whole.
28	2nd & 3rd sentences - must be hearsay but not attributed	Unattributed hearsay. Weight (if any).
29	1st sentence - basis	Observation, field work.
29	2nd sentence - basis	Observation, field work.
29	3rd sentence - basis	Observation, field work.
29	4th sentence - basis	Observation, field work.
40	Final sentence - basis	Justifiable inference for the authors.
41	3rd sentence - basis	Observation, field work.
41	10th & 11th sentences - basis for conclusion/opinion(?) that these were Worrorran or distinctive or unique. How can these things be shown - ie basis	Observation, field work.
44	Last sentence - hearsay	Weight (if any)
45	2nd sentence - hearsay	Weight (if any)
45	3rd sentence - basis. What recent mappings	Weight (if any)
45	4th sentence - basis	Statement of fact, not opinion.
47-54	The authors have no expertise in these matters. It is assumed that it is sought to be admitted solely for the purpose of supporting the conclusion reached as to occupation etc as at 1829. If so it is unobjectionable.	Admitted solely to support conclusions reached as to occupation etc as at 1829.
55-58	The authors have no expertise in these matters. It is assumed that it is sought to be admitted solely for the purpose of supporting the conclusion reached as to occupation etc as at 1829. If so it is unobjectionable.	With the exception of the non- archaeological material in the second sentence of par 55, admitted solely to support conclusions reached as to occupation etc as at 1829.
59-63	The authors have no expertise in these matters. It is assumed that it is sought to be admitted solely for the purpose of supporting the conclusion reached as to occupation etc as at 1829. If so it is unobjectionable.	Admitted solely to support conclusions reached as to occupation etc as at 1829.
64-66	The authors have no expertise in these matters. It is assumed that it is sought to be admitted solely for the purpose of supporting the conclusion reached as to occupation etc as at 1829. If so it is unobjectionable.	Admitted solely to support conclusions reached as to occupation etc as at 1829.
139	1st sentence - basis, unless the later ethnography is specified	Bracket portion disallowed
140	1st sentence - meaningless - what three aspects?	The context shows that "three aspects" means the "four features" referred to in par 139
140	2nd sentence - basis for conclusion/opinion (?) as to importance. Footnote 38 cannot be basis for this	Fact, not opinion or conclusion. Weight.
141	Basis for conclusion/opinion (?) that this is "specific" or "distinctive"	First sentence - fact not opinion 2nd sentence - observation, field work 3rd sentence - observation, field work 4th sentence - experts entitled to disagree with Capell
141	2nd sentence - basis	As stated
142	Basis	Conclusion based on preceding material. Weight to be attributed to "reasonable to conclude" can be assessed by the Court
152	4th sentence - hearsay	Weight.
152	Rest - impossible to discern the basis for these conclusions/opinions (?)	Sources referred to
156	Basis	Field work. T5758
158	7th sentence - basis - believed by whom?	By Ngarynyin people referred to in preceding sentence. Weight (if any).
158	8th sentence - basis - believed by whom?	Ngarynyin people. Weight (if any).
159	1st sentence - basis - seen by whom?	Ngarynyin people. Weight (if any).
160	Basis. If hearsay (and the parties have no idea of knowing - primary evidence of this was not led). Further - in the 3rd sentence - whose "sense"	Undisclosed informants. Weight if any.
170	This opinion/conclusion consequentially fails	[This should probably be directed to par 169.] Weight in light of preceding ruling.
173	1st & 2nd sentences - basis	Lack of supporting evidence goes to weight. The Jack Dale example provides support for the second sentence.
177	Basis	Authors qualified to express views in first three sentences. What the fourth sentence means is a matter for argument. Last sentence hearsay. Weight.
183	Basis	Basis is in footnote 44
184	Basis	Follows from ruling on par 183
187	Final 2 sentences - basis	Second last sentence - in the absence of statistical evidence, of little weight. Last sentence - just an indication of what is to be found in s 3.5
189	3rd sentence to end - basis	Mere assertion. Weight
195	2nd sentence to end - basis	Sources as stated in s 3.1. Last three sentences - weight.
215	Basis	Field work, genealogies, observations on site.
219	Basis	Field work, genealogies, observations on site.
220	Basis	Field work, genealogies, observations on site.
221	Basis	Hearsay. Weight
226	Basis	Partly hearsay. Weight
227	Basis	Field work, genealogies, observations
239	Basis	Observations, field work
240	Basis	Observations, field work
267-271	As basis fails - conclusions consequentially fail	Weight
278	3rd sentence - basis for conclusion/opinion (?) that "most"	Section 3.5. Weight ("most")
278	4th sentence - basis for conclusion/opinion (?) that "high rate"	Weight ("high rate")
278	5th sentence - basis for conclusion/opinion (?) that "great majority"	Weight ("great majority")
279	1st sentence - basis for conclusion/opinion(?). Which people? This cannot be tested	Weight ("some people")
279	2nd sentence basis for conclusion/opinion(?). Which people? This cannot be tested	Weight ("some people")
281	Last sentence - basis	Authors opinion based on the words and their meanings
292	1st & 2nd sentences - basis	Field work, observations.
295	1st sentence - basis	Field work, observations.
295	3rd sentence - basis	Field work, observations.
296	1st 2 sentences - basis	Weight. Historical evidence is elsewhere.
296	4th sentence - basis	Weight. Historical evidence is elsewhere.
296	Last sentence - basis	Weight. Historical evidence is elsewhere.
297	No expertise	Redmond has sufficient expertise to say this
299	Basis	Weight
302	1st sentence - basis	To be inferred that informant is Jack Dale. Weight. Dale gives evidence of this: T 5123
306	Basis	Undisclosed Immintji sources. Weight (if any)
307	Basis	Observation, field work
308	3rd sentence to end - basis	Facts are stated. Weight
311	4th & 5th sentences - no expressed or discernible basis for the conclusion or opinion	Observation, field work. Redmond at Dodnun
312	3rd sentence to end - basis	Observation, field work. Court visited the community, viewed the school and saw the mural
314	Basis	Observation, field work
316	Basis	Observation, field work
324	1st 3 sentences - basis	The first sentence is proved by other evidence. Otherwise observation, field work
326	Basis. Authors lack expertise to make conclusion/opinion (?)	Opening sentences proved by historical evidence. Last two sentences proved by Maisie Jodba and her son Matthew Martin
327	1st sentence - basis	Weight
329	2nd sentence - basis	Basis is said to be in sections 3.5 and 4.1
330	Basis; hearsay	Basis as stated. Observation and field work. Partly hearsay. Weight.
Map 3	Basis; hearsay	Basis as stated. Observation and field work. Partly hearsay. Weight.
335	Basis	Basis for second sentence as stated. First sentence partly hearsay. Weight.
336	Basis	Basis as stated
337	Basis	As stated. Otherwise weight attaching to probability
339	Basis	Basis as stated. Hearsay. Weight
340	Basis to the extent that the conclusion relied upon earlier inadmissible material	Weight. Earlier objected to material admitted.
345	2nd sentence - basis	Not a basis point. Research - a negative result either way
350	Basis	Informants Tiger and Morton Moore, Alanbar and Paul Chapman. Partly supported by Tiger's and Morton's own evidence. Ethnographers Petri and Lommel. Concluding sentences based on par 351
351	Basis	Basis is Elkin, Campbell and authors' research as stated in par 360 ("as discussed below")
354	Last 2 sentences - basis	Informants Ngarinyin people. Hearsay. Weight
356	Basis	Observation and field work, and conclusions drawn therefrom [The Court went to a selection of sites with different types of art work]
357	Basis	Oldest Ngarinyin claimants, Tiger and Morton Moore. Weight. First sentence also based on field work.
360	Basis	Unnamed Ngarinyin and Kija informants. Named informants - Bruce Nulgit, Nola Jowil, Wallace Midmi. Weight. Conclusion in seventh sentence based on preceding information.
361	Basis	Redmond's viewing of sites. Unidentified informants. Weight.
362	Basis	Identified informant Midmi. Unidentified informants. Expert opinions based thereon. Weight.
363	2nd sentence to end - basis	Elkin and Rumsey's field work.
364	Basis	A permissible comparison for experts to make.
384	2nd sentence - basis for conclusion that this not possible	Final sentence may explain the impossibility. Weight.
387	Basis	Unattributed hearsay. Weight.
388	Basis	Partly hearsay. Weight.
389	Basis. Believed by whom?	Partly unattributed hearsay. Weight.
393	Basis	Sources stated.
394	Basis	No source of information cited. Weight.
395	Basis	Visits to sites. Observation. Partly hearsay. Weight.
396	Basis	Unattributed hearsay. Weight.
401	Basis. Consequentially inadmissible.	Weight. Preceding material not disallowed
402	Basis	No source of information cited. Weight.
403	Basis	No source of information cited. Weight.
406	Basis	See earlier 406 ruling
407	Basis	Source as stated. Observation, field work
408	Basis	Hearsay. Weight
409	Basis	Weight (if any)
414	No primary evidence to support conclusion or opinion. Basis	Report preceded Aboriginal evidence. Weight (if any)
415	Basis	Weight
420	Basis. Hearsay.	Weight
424 to end	All conclusions consequentially fail.	Conclusions. Weight in view of preceding rulings.

B. FIRST RESPONDENT'S OBJECTIONS

To a large extent the first respondent's objections overlap those of the Group 2A respondents. The table below deals only with the objections that differ from those dealt with in the earlier table.

4	2nd & 3rd sentences - Speculation, with no real basis provided for the conclusion offered	Merely a guide as to what is contained later in the Report. May be used as an aide memoire, but not as evidence.
7	From the words "given that" to the end - this is not an "expert opinion"	The whole paragraph is a legal submission and not evidence.
13	Form	Irrelevant
14	From the penultimate sentence commencing "Most of the claimants" to the end - unspecified hearsay	Weight
15	Form. Factual basis not stated. Hearsay.	An overview summarising later conclusions and opinions. Basis is provided later in Report.
16	Form. Factual basis not stated. Hearsay.	An overview summarising later conclusions and opinions. Basis is provided later in Report.
43	The last three lines commencing with the words "It would" - speculation	Cross-examined in. See Rumsey X-Examination T6247-8. In any event, a permissible conclusion or inference. Note that at T6248 Rumsey says he does not mean over the whole region; just occupation within the region.
151	1st sentence - form. This is a conclusion that the Court can draw, based upon the Aboriginal evidence.	Not thereby rendered inadmissible.
157	Form. Hearsay. Factual basis not disclosed or proved.	Weight.
168	Form. Hearsay. Factual basis for the 1st sentence not stated or proved and for the 2nd sentence not proved.	Weight.
206	The sentence commencing "As the reader" - Form. Hearsay. The Court can itself draw conclusions from the primary evidence.	Not thereby rendered inadmissible.
276	Form. Hearsay or conclusion based on upon unspecified hearsay.	Weight.
281	The last sentence is speculation.	Weight.
290	The 2nd and 3rd sentences - form. This is evidence that could and should have been given by the Aboriginal witnesses.	Weight.
291	All except the last sentence - form.	Ground of objection unclear. Basis for opinion in second sentence is contained in the last sentence, which is not objected to. First sentence - field work and observations.
301	The word "traditional" in the last sentence - basis for that conclusion not stated	Weight.
309	Form. Hearsay. Basis not stated. This is evidence which could and should have been given by the Aboriginal people identified in the paragraph.	Weight.
313	Form. Hearsay. Basis not disclosed. Phillip Growan, who is said to serve a custodial role, was not called to give evidence.	Weight.
331	Last sentence, from the words "possibly as a" to the end - speculation	Permissible speculation.

VEITCH REPORT - WAFIC'S OBJECTIONS

Pages	Grounds	Ruling
14-15	Not within witness's expertise; outside claim area	Question 6(a) (pages 9-15 and 16-18) disallowed T5929
17	Islands outside claim area - irrelevant	Question 6(a) (pages 9-15 and 16-18) disallowed T5929
18	Outside witness's expertise	Question 6(a) (pages 9-15 and 16-18) disallowed T5929
19	5th sentence of 2nd paragraph - hearsay recitation of hearsay	Disallow - remote hearsay (Lee). Not in Mabel's own evidence.
20	1st & 3rd sentence of 2nd paragraph - island outside claim area. Hearsay	Not thereby inadmissible Weight. Blundell mentions High Cliffy Island/Woolagoodja at T5331-2
22	1st sentence of 2nd paragraph - outside claim area Hearsay	Not thereby inadmissible Weight
22	Last sentence of third paragraph - outside claim area Hearsay	Not thereby inadmissible Weight
22	1st sentence of 5th paragraph - hearsay	Weight. Conceded that Blundell qualified as an archaelogist: T5964.
23	2nd sentence of 1st paragraph - hearsay	Weight
23	1st sentence 3rd paragraph - "where inter-tribal trading had occurred". Hearsay. No basis.	Weight
23	Last sentence of 5th paragraph - hearsay	Weight. Semble covered by concession at T5964
23	5th sentence of last page - hearsay upon hearsay	Disallowed (p 19 5th sentence of 2nd paragraph)
24	Last sentence of 1st paragraph - hearsay	Weight
27	2nd sentence of 2nd paragraph - hearsay upon hearsay	Disallowed (p 17 5th sentence of 2nd par)
31	1st 2 paragraphs - outside claim area and a material culture not exhibited within claim area	Disallowed on "culture" limb of objection
32	2nd last line to end of par on p 33 - recitation of hearsay, alternatively hearsay recitation of anthropologist opinion	Disallow third sentence - remote hearsay (Lee). Balance, weight.
35	last paragraph - anthropological opinion - not qualified. Hearsay or based on hearsay	Qualified to express opinion in last sentence. Balance admitted not for truth of statements, but to explain context for last sentence. The preceding material is amply proved by Aboriginal and other evidence.
39	Last paragraph - not an archaeological opinion; outside claim area; hearsay	Not archaeological opinion. See also material culture ruling on p 31 1st 2 paragraphs
Appendix 2	Hearsay recitation of facts not before Court. Mabel King - hearsay upon hearsay	Not admitted - Stokes available to give evidence, but not called. Mabel King - remote hearsay (Lee). Exclusion not affect Veitch's evidence about Stokes' sites, to which no objection was taken.
53-55	Statistical analysis of sites outside claim area or of sites including sites outside claim area	Not admitted except for Table 10 (first three columns) and Graph 4 (2 claim areas).

PROFESSOR BLUNDELL'S EVIDENCE - OBJECTIONS RULING

A. BLUNDELL ANTHROPOLOGICAL REPORT

(1) WAFIC'S objections

43	Hearsay	Semble based on "informants of the 1970s". Weight
44	Hearsay	Semble based on "informants of the 1970s". Weight
45	Hearsay	Semble based on "informants of the 1970s". Weight
47	Hearsay	Unidentified informants apart from Woolagoodja. Weight.
50	Hearsay; not supported by evidence in transcript.	Report preceded evidence. Weight.
52	Hearsay; not supported by evidence in transcript.	Report preceded evidence. Observations on country with Sam Woolagoodja in the 1970s and with Donny Woolagoodja during 1990s. Observations of people enacting the Wurnan including at the Diabetes Camp. Discussions with people and information provided: T5368. To the extent hearsay, weight.
85	Last line - hearsay	Weight
91	Hearsay	Weight

(2) Group 2A Objections

43	No basis	"documented cases" (par 42) - Weight
44	No basis	"documented cases" (par 42) - Weight
45	No basis	"documented cases" (par 42) - Weight
47	No basis	Informants Woolagoodja and his children
50	No basis	Basis as stated
52	No basis	Observations on country with Sam Woolagoodja in the 1970s and with Donny Woolagoodja during 1990s. Observations of people enacting the Wurnan including at the Diabetes Camp. Discussions with people and information provided: T5368. To the extent hearsay, weight.
85	Last line - no basis	Sam Woolagoodja example is in par 47
91	No basis	"more recent fieldwork", ie since the work referred to in par 88 and including 1994 (par 89)

B. ARTICLE - "Symbolic Systems and Cultural Continuity in Northwest Australia" (1982)

WAFIC's Objections

Page	Grounds	Ruling
6	1st column, 5th sentence to end of 1st paragraph - hearsay; no basis for conclusion	Field work. In any event, weight.
7	2nd column lines 12-14 - hearsay	Informant identified in oral evidence as Elkin Oombagai. Weight
8	2nd column 2nd sentence to end of paragraph - hearsay	Weight
9	2nd column 4 lines from bottom to 8th line on page 10 - hearsay	Weight

C. ARTICLE: "Hunter-Gatherer Territoriality" (1980)

WAFIC's Objections

Whole article	Irrelevant because primarily based on people outside claim area; hearsay; basis	This objection has consistently been rejected in other contexts. Evidence about people and sites outside the claim area, but within the claim region, is relevant, especially if proximate to boundary of claim area. Weight.
Alternatively:
104 map	Irrelevant so far as relates to area outside claim area	See above.
105	Hearsay insofar as based on field work and secondary sources	Weight
106	Last full sentence - hearsay	Weight
108	Second full paragraph - hearsay	Weight. Informants identified at T5314-5315 and in Exhibit 22
111	Diagram - irrelevant so far as relates to clan estates outside claim area	Weight. See whole article ruling
113	1st 2 sentences of 2nd paragraph - hearsay	Weight
113	3rd full paragraph - hearsay Irrelevant so far as relates to clan estates outside claim area	Weight Weight. See whole article ruling
113	3rd to 6th sentences of last paragraph - hearsay	Weight

D. ARTICLE: "Art of Country" (2000)

(1) WAFIC'S Objections

Whole Paper	Primarily based on people (Worrorra) outside claim area	See first ruling in C above.
8	2nd sentence of first full par to end thereof - hearsay	Weight
8	Last sentence to end 1st par on p 9 - hearsay	Weight
10	Last sentence and footnote 40 - hearsay and no relevant expertise	Sufficient expertise in history. See T5283-5284
11	2nd sentence to foot of p 12 - irrelevant - relates to Worrorra person and events outside claim area. Hearsay	See first ruling in C above. Weight on both grounds
14	6th line to end of paragraph - irrelevant - relates to Worrorra person outside claim area. Hearsay.	See first ruling in C above. Weight on both grounds.
21	Last 2 sentences of 1st para - hearsay	Weight.
23	Last paragraph - irrelevant - relates to Worrorra person and events outside claim area. Hearsay	See first ruling in C above. Weight on both grounds.

(2) Group 2a Objections

Whole paper	Insufficient basis for opinions and conclusions	Weight
10 onwards	Dealing with current painting practices at Mowanjum - Aboriginal evidence was led on this topic. Expert evidence unnecessary	Expert evidence may be unnecessary, but not thereby irrelevant. Weight.

E. Professor Blundell's Oral Evidence

T5318	Hearsay	Weight
T5349	"similarly" - basis	Basis appears on T5350
T5353	Lines 22-26 - information from more recent generation of persons. Very little evidence led for recent generations	The fact that little Aboriginal evidence was given by younger people does not render Blundell's expert evidence inadmissible. Weight.

SKYRING REPORTS - OBJECTIONS RULING

A. GROUP 2A RESPONDENTS

(1) Historical Report 17 May 2001

54

2nd para - "since ... bush foods" - no basis

Weight

(2) Supplementary Report 24 December 2001

Introduction	Relevance	Allowed 17.5.02
7	2nd par last sentence - no basis	The "records" relied on are those set out on following pages
16	2nd par last sentence - no basis	The "other records" are identified on following pages
29	First sentence - no basis	See ensuing parts of the Report
29	Last paragraph - no basis author not qualified	See footnote 62 Author sufficiently qualified
30	1st par 1st sentence - no basis author not qualified	The "records" referred to are identified in following pages Sufficiently qualified
43	Last par to p 44 end of 1st par - expressed basis not support conclusion	Weight
49	Last line after comma to end of par on p 50 - no basis Footnote 121 too imprecise	Basis as stated in footnote 120 Basis for last sentence as stated
50	4th sentence of 1st par double hearsay	Ordinary hearsay - weight
51	1st 2 sentences - no basis	First sentence: balance of Report Second sentence: cross-examined in
51	3rd sentence - no expertise	Sufficiently qualified. Opinion based on historical records referred to in Report: T6002
59	2nd last sentence 1st par - no basis	Weight
59	3rd last sentence 1st par - no basis speculation not qualified	Basis as stated - "The reports and inquiries analysed in previous chapter" Opinion, not speculation Sufficiently qualified
88	Conclusion - 2nd sentence - no basis	Balance of Report
88	4th sentence - not follow from preceding sentence	Weight

B. WAFIC

(1) Historical Report 17 May 2001

10-11	King section - outside claim area	Not thereby inadmissible
11	Stokes section - outside claim area	Not thereby inadmissible
19-20	Last par from "The established" to end of paragraph - no basis	First sentence - "Violent frontier" at p 22 et seq balance - footnote 37
23-26	From "An example" in line 3 to "area" in line 4 of p 26 - outside claim area	Not thereby inadmissible
27	Line 1 to end of 2nd par - outside claim area?	not thereby inadmissible
28	Line 1 to line 11 - outside claim area? speculation?	Yes, but not thereby inadmissible. Lines 7-8 permissible speculation.
39	From "The establishment" to line 9 or p 40 - outside claim area	Not thereby inadmissible

(2) Supplementary Report 24 December 2001

12	Last line to end of par on p 13 - outside claim area	Not thereby inadmissible
15	6th last line to end of par on p 16 - outside claim area	Not thereby inadmissible
20	1st full par to end of par on p 21 - outside claim area	Not thereby inadmissible
24	1st full par - outside claim area	Not thereby inadmissible

JEBB REPORTS - RULING ON GROUP 2A OBJECTIONS

(1) Preliminary Report 10 December 1999

24

no basis

See footnote 50

(2) Supplementary Report April 2002

Appendix 9

5	Last par 4th sentence - no basis	Weight (if any)
6	Last par 4th sentence - no basis	Field work at Mt Elizabeth and Dodnun
6	Last par 6th sentence - no basis	Field work and observation
7	1st par 1st sentence - no basis	To be inferred that informant is Howendon. Weight.
7	4th & 5th sentences - no basis	To be inferred that informant is Scotty Martin. Weight
8	1st par 7th sentence - no basis	To be inferred that Lacys are the informants. Weight.
8	9th sentence - scandalous	Unexceptionable
8	10th sentence - no basis	Author's opinion based on preceding information provided by Pat Lacy
31	Last par 2nd sentence to end of par on p 32 - hearsay	Weight
32	1st par 2nd sentence - no basis	To be inferred that informant is Morndinjali. See p 30 first par. Weight
33	1st par 5th to 8th sentences - no basis	To be inferred that informant is Billy King. Weight.
146	Sentence beginning "Jowalji's Youth" - no basis	Author's inference from conversations with Jowan and Jowalji. Weight.
184	Last par 1st 3 sentences - no basis	Really a hearsay objection. Weight.
206	Last par 2nd sentence to end - no basis	See footnote 6
209	1st par ending "work routine" - no basis	Named informants. Weight
209	Last par to p 214 end of 1st par - hearsay	Named informants. Weight
214	1st par 1st sentence - no basis	Weight
220	2nd par to end of 2nd line on p 221 - hearsay author cannot fill gaps in primary evidence.	Weight If gap filling, weight.
235	Basis	Really a hearsay objection. Weight.

McCARTHY REPORTS - OBJECTIONS RULING

A. GROUP 2A RESPONDENTS

(1) Report Accompanying Genealogies 10 December 1999

Whole Report

Genealogical evidence not a matter of expertise

Such evidence is a matter of expertise. (Same ruling made in relation to Vachon evidence 29.5.02)

(2) Supplementary Report 1 April 2002

p 5 2nd sentence	Not qualified	A matter for submissions, not evidence
p 5 4th sentence	Not qualified	A matter for submissions, not evidence

B. WAFIC

(So far as not covered by Group 2A objections)

p 5 last sentence of 3rd par	Not qualified	A matter for submissions, not evidence
p 5 last sentence	Not qualified	A matter for submissions, not evidence

DR RUMSEY'S SUPPLEMENTARY REPORT

(1 APRIL 2002) - RULING ON OBJECTIONS

(1) GROUP 2A RESPONDENTS

4	Simple commentary on transcript	Treat as aide memoire/submission, but not as evidence
5	Simple commentary on transcript	Treat as aide memoire/submission, but not as evidence
13	4th sentence last 19 words - basis	Disallow "and I could not point ... in evidence"
13	Last 11 words - basis	Disallow "and this also ... in the evidence"
19	Last sentence - basis	Disallow
20	Last 11 words - basis	Disallow "now, I believe ... the transcript"
32-34	Relevance. Not for witness to comment on Blundell's Report	Pars 32 and 33: Rumsey entitled to say that Sansom's attempt to point up differences between Rumsey/Redmond and Blundell is exaggerated or baseless. Not a mere commentary on Blundell. Par 34: Rumsey entitled to say that Blundell's Report supports identified aspects of the Joint Report.
49	Last sentence to par 59 - simple commentary on transcript	Aide memoire/submission, but not evidence.

(2) FIRST RESPONDENT

par 3

Conclusions from whole of transcript

Mere generalised comment on effect of Aboriginal evidence. Submission, not evidence.