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Bennell v Western Australia [2006] FCA 1243 (19 September 2006)

Last Updated: 21 September 2006

Bennell v State of Western Australia & Ors

Bodney v State of Western Australia & Ors

STATEMENT OF JUSTICE WILCOX

(This statement is intended to provide some information about the proceedings listed for judgment today and the conclusions reached by the Court. The statement does not cover all aspects of those cases and is not a substitute for the Court’s formal orders or its reasons for judgment. These can be found on the internet at www.fedcourt.gov.au)

Before the Court are six native title cases. Each of them concerns land and waters in, or near to, the Perth metropolitan area.

Five of the cases arise out of applications for a native title determination made by Christopher Robert (‘Corrie’) Bodney. Four of the applications concern particular small areas of land, being land at Hartfield Park, Wannerro Road, Burswood Island and Swanbourne respectively. The fifth application claims a larger area of Perth land, and adjoining coastal waters to the twelve nautical mile limit.

The sixth case arises out of a native title application which has been called ‘the Single Noongar application’. It takes this title from the fact that it was brought to the Court by 80 Aboriginal persons who allege that, in 1829 (the date of European settlement in Western Australia), there was a single Aboriginal community throughout the whole of the south-west of Western Australia. The applicants call this the ‘Noongar community’ and claim the 1829 rules governing the occupation and use of land, throughout the south-west, were the laws and customs of that community. The applicants say the Noongar community continues to exist, and they are part of it; and that its members continue to observe some of the community’s traditional laws and customs (including in relation to land), although with changes flowing from the existence and actions of the white community. The applicants seek a Determination of native title, in favour of all members of the present Noongar community, over a substantial portion of Western Australia. The boundary of the claimed area commences, on the west coast, at a point north of Jurien Bay, proceeds roughly easterly to a point approximately north of Moora and then roughly south-easterly to a point on the southern coast between Bremer Bay and Esperance. The Single Noongar applicants also claim rights and interests over Rottnest and Carnac Islands and coastal waters to a distance of three nautical miles from land.

I will refer to the whole of the land and waters claimed in the single Noongar application as the ‘claim area’.

It will be appreciated that the claim area includes the whole of the Perth metropolitan area as well as centres such as Bunbury, Busselton, Margaret River, Albany, York, Toodyay, Katanning, Merredin and many other towns. However, the applicants excluded from their claim all land and waters over which native title had been extinguished by a past act of the Commonwealth or State governments. The effect of that exclusion is to omit from the application all freehold land in the claim area, and probably most leasehold land. Having regard to the extent of urban development, and intensive farming, in the claim area, the result is that a large proportion of the land within the claim area is unaffected by it.

The Court decided to break up the trial of the Single Noongar application by first dealing with an area, in and around Perth, that had been the subject of several earlier, smaller claims and later aggregated together as the ‘Combined Metro claim’. The Court took this course because of the expressed desire of the State (supported by the Commonwealth) for early finality about the question whether native title still survived, in the Perth area. With the agreement of all parties, the Court created a separate proceeding in relation to the Perth area. With the assistance of the parties, the Court framed a separate question in that proceeding, asking whether native title existed in the Perth area and, if so, who were the persons who held the native title and what rights and interests it included.

On 11 October 2005, I commenced a hearing relating to all issues arising out of Mr Bodney’s five applications and the issues raised by the separate question in the Single Noongar application. The Court took evidence over a period of 20 days. On eleven of those days, the Court sat ‘on-country’ at eight different locations: Jurien Bay, Albany, Toweringup Lake near Katanning, Dunsborough near Busselton, Kokerbin Rock and Djuring in the Kellerberrin district and, in Perth, at Swan Valley and in Kings Park. The Court heard evidence from 30 Aboriginal witnesses and five expert witnesses: two historians, two anthropologists and a linguistic expert. A considerable volume of written evidence was also received.

After the conclusion of the evidence, most parties prepared and filed written submissions. On 23 June 2006, I conducted a video-link hearing between Sydney and Perth to discuss aspects of those submissions.

The judgment I will deliver today will deal with all issues arising in respect of Mr Bodney’s applications but, in relation to the Single Noongar applicants, only the separate question. Unless resolved by agreement between the parties, all other issues arising out of the Single Noongar application will be determined by another judge.

In order to obtain a Determination of native title, applicants must establish two fundamental matters:

(i)	the identity of the community whose laws and customs governed the use and occupation of the land within the claim area at the relevant date of settlement, in this case 1829;
(ii)	that this community continues to exist today, and continues to acknowledge and observe those laws and customs, albeit perhaps in an attenuated or somewhat changed form.

These two issues lay at the heart of the hearing conducted by me late last year and the parties’ subsequent submissions.

As I have said, the Single Noongar applicants claim the laws and customs governing land rights and interests in 1829 were those of a single community whose members were scattered throughout the whole claim area. The case put on behalf of the principal respondents (the State and the Commonwealth) was that there were, at that time, a number (perhaps 12 or 13) of separate communities, each with its own set of laws and customs concerning land. Mr Bodney seemed to contend for a much greater number of land-owning units. If either the principal respondents or Mr Bodney is correct, the Single Noongar application would have to be dismissed; that application is premised on the existence of a single community throughout the whole claim area.

An unusual feature of this case is the wealth of material left to us by Europeans who visited, or resided in, the claim area at, or shortly after, the date of settlement. Several maritime explorers visited the south-west coast and left written accounts of their observations, including of the Aboriginal way of life. In 1826, a military garrison was established at King George’s Sound (modern Albany). Three people associated with that garrison became friendly with local Aboriginal people and left accounts of their observations and the information they had gleaned. In addition to this, several early Swan Valley settlers published accounts of the way of life of Aborigines in the Perth district. This material was supplemented, later in the 19^th century, by the writings of other settlers. Very early in the 20^th century, Daisy Bates carried out an extensive investigation about Aborigines for the Western Australian government. She left numerous writings, the most significant of which was later published as ‘The Native Tribes of Western Australia’. The cumulative effect of these writings is to provide an insight into Aboriginal life, including Aboriginal laws and customs, in and about the date of settlement, which is possibly not replicated elsewhere in Australia.

I have reached the conclusion that the Single Noongar applicants are correct in claiming that, in 1829, the laws and customs governing land throughout the whole claim area were those of a single community. My principal reasons for that conclusion are as follows:

(i) this conclusion best accords with the information left to us by the early writers;
(ii) I am satisfied, on the evidence of Dr Nicholas Thieberger, an expert in Aboriginal languages, that in 1829 there was a single language throughout the whole claim area, albeit with dialectic differences between various parts of that area;
(iii) the evidence establishes some important customary differences between people living within the claim area and those living immediately outside it (Yamatji to the north and Wongai to the north east);
(iv) there is evidence of extensive interaction between people living across the claim area;
(v) there is no evidence of significant differences within the claim area, as regards the content of laws and customs relating to land.

However, I am satisfied the laws and customs observed in 1829 did not extend to rights and interests over the off-shore islands, such as Rottnest and Carnac Islands, or to the sea below low-water mark. It is clear from the early writings that, in 1829, the south-west Aborigines were not accustomed to use any form of boat. Although the coastal people took fish, they seem to have done so from dry land or places accessible by wading. The off-shore islands are important in Aboriginal legend, but the absence of evidence of physical use means there can be no native title over those areas of land and water.

The second question is whether the Noongar community has continued to exist, as a community, and to acknowledge and observe its traditional laws and customs concerning land.

The Noongar community was enormously affected by white settlement. Aboriginal people were forced off their land and dispersed to other areas. Families were broken up. The descent system was affected by the fact that many children were fathered by white men. Probably in every Noongar family there is at least one white male ancestor. Over a long period, mixed-blood children were routinely taken away from their parents. Notwithstanding all this, and surprisingly to me, members of families seem mostly to have kept in contact with each other, and families with other Noongar families. Many, if not most, children learned at least some Noongar language. Many, if not most, were taught traditional skills, such as for hunting, fishing and food-gathering, and learned traditional Noongar beliefs, including in relation to the spirit world. All of this was graphically illustrated by the witnesses who gave evidence in these cases.

A major issue in the Single Noongar case was whether it can be said the present Noongar community continues to acknowledge and observe its traditional laws and customs concerning land. Undoubtedly, there have been changes in the land rules. It would have been impossible for it to be otherwise, given the devastating effect on the Noongars of dispossession from their land and other social changes. However, I have concluded that the contemporary Noongar community acknowledges and observes laws and customs relating to land which are a recognisable adaptation to their situation of the laws and customs existing at the date of settlement. In particular, contemporary Noongars continue to observe a system under which individuals obtain special rights over particular country – their boodjas – through their father or mother, or occasionally a grandparent. Those rights are generally recognised by other Noongars, who must obtain permission to access another person’s boodja for any traditional purpose. Present day Noongars also maintain the traditional rules as to who may ‘speak for’ particular country.

It follows that the Court should find that native title continues to exist in the area that was made the subject of the separate question. The native title holders are the whole Noongar community, on whose behalf the Single Noongar application was made.

The evidence enables me to identify eight native title rights which have survived and should be recognised. The wording of these rights will need refinement in the light of discussions between the parties or rulings concerning some particular parcels of land. However, I will provide an answer to the separate question that proposes a tentative list.

Mr Bodney’s applications must all be dismissed. I am not satisfied that the Ballarruk and Didjarrak people, through whom he claims, were ever land-holding groups, whether singly or in combination. The better view is that ‘Ballarruk’ and ‘Didjarruk’ were the names of moiety (skin) groups. Also, there is no evidence that the members of Mr Bodney’s claim group are descended from anybody who was a Ballarruk or Didjarruk person alive at or about the date of settlement or that they have continued to acknowledge and observe whatever were the Ballarruk and/or Didjarruk rules about landholding at that time. Finally, Mr Bodney’s claims are inconsistent with my finding that the relevant community in 1829 was the Single Noongar community.

Litigation over native title in the Perth area has gone on for a long time. It has undoubtedly cost much money – mostly taxpayers’ funds. Unless the parties make a determined effort otherwise, it will absorb a lot more money, before it is finished. My answers to the separate question will not themselves end the litigation. There may be an appeal. If there is not, or my finding is sustained on appeal, it would ordinarily be necessary for the State to carry out land tenure searches relating to every one of hundreds of thousands of individual parcels of land in the Perth area. This would be an expensive exercise and take a long time. Any disputes about extinguishment would need to be resolved. It would then be necessary to deal with the remainder of the area covered by the Single Noongar claim, but outside the Perth area which is the subject of the separate question. This also would be an expensive and time-consuming process.

Having regard to these considerations, it seems to me sensible for the parties to discuss the future course of the Single Noongar application, perhaps after disposal of any appeal from my orders but before embarking on land tenure searches or litigation about other matters. It might be preferable for the parties to concentrate their attention on a limited number of larger parcels, in relation to which there is a reasonable likelihood of frequent use by members of the Noongar community. I have in mind areas of undeveloped, or sparsely developed, land; perhaps including national parks. A relatively early determination of rights over those properties may better serve the interests of the Noongar community than a lengthy pursuit of a Determination over every legally available parcel of land; and this course is likely to be both less expensive to the State and conducive to earlier certainty about the status of each particular parcel of land.

It is perhaps important for me to emphasise that a Determination of Native Title is neither the pot of gold for the indigenous claimants nor the disaster for the remainder of the community that is sometimes painted. A Native Title Determination does not affect freehold land or most leasehold land; it cannot take away peoples’ back yards. The vast majority of private landholders in the Perth region will be unaffected by this case.

A Native Title Determination recognises the traditional association of the claimant community with particular land. I recognise the immense symbolic and psychological importance of such recognition. Native Title Determinations have an important part in achieving the reconciliation between indigenous and non-indigenous Australians to which we all aspire. However, a Determination does not give to the claimant community a right that enables them to sell or lease the land or to develop or use it for any non-traditional purpose.

It follows that a Native Title Determination impedes the use of public land only to the extent of the rights listed in the Determination.

I believe it would be worthwhile, in the present case, for the government and local government respondents carefully to consider to what extent, if at all, their proper functions would be impeded by a formal Determination along the lines suggested by the answer to the separate question I am about to announce. On the other side, it would be worthwhile for the Single Noongar applicants to consider how they might assist to ameliorate any genuine problem. In short, it would be desirable for the parties to engage in some serious thought and discussion before any of them spends more money on legal action.

The formal orders that I make are as follows:

(i)	in relation to each of Mr Bodney’s claims (matters WAD 137, 138, 139, 140 and 149 of 1998) I order the application be dismissed;
(ii)	in relation to the Perth Metropolitan part of the Single Noongar claim (Part of WAD 6006 of 2003), I order that:

1. The question which was directed, by an order entered on 6 April 2005, to be decided separately from any other question (as amended up to and including 21 December 2005), be answered as follows:

As to para (i):

But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off-shore islands and land and waters below low-water mark;

As to para (ii):

The persons who hold the common or group rights and interests comprising the native title in the said land and waters (hereafter ‘the area’) are the Noongar people, as identified in Schedule A of the application for determination filed on 10 September 2003 in matter WAD 6006 of 2003;

As to para (iii):

Without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:

(a) to access and live on the area;
(b) to conserve and use the natural resources of the area for the benefit of the native title holders;
(c) to maintain and protect sites, within the area that are significant to the native title holders and other Aboriginal people;
(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;
(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
(g) to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;
(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.

2. The notice of motion filed by the State of Western Australia on 25 August 2006 be dismissed.

3. The State of Western Australia pay the costs incurred by the Applicants, in the principal proceeding, in relation to the said notice of motion.

4. The costs of other parties in relation to the said notice of motion be reserved for consideration, on application, by French J.

5. The separate proceeding constituted by the order made on 21 December 2005 be remitted to the Western Australian native title provisional docket judge, French J, for the making of such further orders and directions as may be necessary.

FEDERAL COURT OF AUSTRALIA

Bennell v State of Western Australia [2006] FCA 1243

NATIVE TITLE – Overlapping claimant applications in respect of land and waters in and around Perth – Applications in respect of five areas made on behalf of Bodney Family Group claim based on descent from Ballarruk and Didjarruk ‘clans’ – Whether these were land-holding groups at sovereignty or moiety groups – Lack of evidence of connection between members of claimant group and any Ballarruk or Didjarruk person alive at sovereignty – Lack of evidence of continued acknowledgement and observance of traditional laws and customs – These claims dismissed - Consideration of separate question arising out of application by the Noongar community in respect of an extensive area of south-west Western Australia – Separate questions related only to land and waters in and around Perth, however the claim was that this was part of a greater area in respect of which the Noongar community held native title rights and interests – Whether at sovereignty the normative system governing the whole of south-west Western Australia was that of a single Noongar community or whether there were a series of separate normative systems of smaller communities – Whether the single Noongar community has continued to acknowledge and observe some traditional laws and customs concerning land and waters – Identification of persons entitled to native title rights and interests – Identification of surviving rights and interests – Discussion of, and orders about, belated motion to strike out single Noongar claim for lack of proper authorisation.

Native Title Act 1993 (Cth) ss 61, 84, 84C, 85A, 223, 225
Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422, followed
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 followed
Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 applied
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 applied

ANTHONY BENNELL v STATE OF WESTERN AUSTRALIA & ORS
PART OF WAD 6006 OF 2003
CHRISTOPHER ROBERT BODNEY v STATE OF WESTERN AUSTRALIA & ORS
WAD 137 OF 1998
CHRISTOPHER ROBERT BODNEY v STATE OF WESTERN AUSTRALIA & ORS
WAD 138 OF 1998
CHRISTOPHER ROBERT BODNEY v STATE OF WESTERN AUSTRALIA & ORS
WAD 139 OF 1998
CHRISTOPHER ROBERT BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS v STATE OF WESTERN AUSTRALIA & ORS
WAD 149 of 1998

WILCOX J
19 SEPTEMBER 2006
PERTH

IN THE MATTER OF THE PERTH PORTION OF
THE SINGLE NOONGAR CLAIM NO. 1

THE COURT ORDERS THAT:

1. The question which was directed, by an order entered on 6 April 2005, to be decided separately from any other question (as amended up to and including 21 December 2005), be answered as follows:

As to para (i):

But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off-shore islands and land and waters below low-water mark;

As to para (ii):

The persons who hold the common or group rights and interests comprising the native title in the said land and waters (hereafter ‘the area’) are the Noongar people, as identified in Schedule A of the application for determination filed on 10 September 2003 in matter WAD 6006 of 2003;

As to para (iii):

Without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:

(a) to access and live on the area;
(b) to conserve and use the natural resources of the area for the benefit of the native title holders;
(c) to maintain and protect sites, within the area that are significant to the native title holders and other Aboriginal people;
(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;
(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
(g) to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;
(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.

2. The notice of motion filed by the State of Western Australia on 25 August 2006 be dismissed.

3. The State of Western Australia pay the costs incurred by the Applicants, in the principal proceeding, in relation to the said notice of motion.

4. The costs of other parties in relation to the said notice of motion be reserved for consideration, on application, by French J.

5. The separate proceeding constituted by the order made on 21 December 2005 be remitted to the Western Australian native title provisional docket judge, French J, for the making of such further orders and directions as may be necessary.

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

THE COURT ORDERS THAT:

1. The application be dismissed.




















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

THE COURT ORDERS THAT:

1. The application be dismissed.



















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

THE COURT ORDERS THAT:


1. The application be dismissed.


















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

THE COURT ORDERS THAT:

1. The application be dismissed.



















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

THE COURT ORDERS THAT:


1. The application be dismissed.




































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

IN THE MATTER OF THE PERTH METRO PORTION OF
THE SINGLE NOONGAR CLAIM NO. 1

REASONS FOR JUDGMENT

WILCOX J:

1	These reasons for judgment concern six applications under the Native Title Act 1993 (Cth) (‘the Act’) in relation to land and waters in and around the Perth metropolitan area.
2	The reasons are structured in the following way, paragraph references being stated:

I The proceedings
(i) The 1998 applications 3 - 8
(ii) The Combined Metro application 9 - 10
(iii) The hearing before Beaumont J 11 - 16
(iv) The motion to strike-out the Bodney applications 17 - 21
(v) The Single Noongar application 22 - 27
(vi) Pre-trial orders and directions 28 - 36
(vii) Pre-trial rulings 37 - 48
(viii) The hearing 49 - 56
(ix) The formal issues in the cases 57

II Elements of a native title claim
(i) The source of the elements 58
(ii) The effect of s 223(1) of the Act 59 - 60
(iii) Communal and group claims 61 - 63
(iv) The Applicants’ submissions about legal principles 64 - 73
(v) The respondents’ submissions about legal principles 74 - 82

III The factual issues in these cases 83

IV Was there a Single Noongar community in 1829?
(i) The Applicants’ claim 84
(ii) Source material
(a) Overview 85 - 89
(b) The expert witnesses 90 - 95
(c) The journals of pre-settlement explorers 96
(d) The King George’s Sound writers 97 - 99
(e) The early Perth district writers 100
(f) Late 19^th century writers 101 - 103
(g) The early 20^th century writers 104 - 105
(h) Some cautionary notes 106 - 112
(i) Late 20^th century writers 113 - 115
(j) Marginal matters 116 - 117
(iii) Historical summary
(a) The maritime explorers 118 - 127
(b) The King George’s Sound garrison and settlement 128 - 146
(c) The early post-settlement years 147 - 182
(d) Early 20^th century writers 183 - 186
(e) Dr Palmer’s comments on the historical material 187 - 188
(f) Dr Brunton’s response to Dr Palmer’s comments 189 - 190

(iv) Language
(a) Dr Thieberger’s evidence 191 - 216
(b) Aboriginal evidence about language 217 - 252
(c) Dr Palmer’s evidence 253 - 260
(d) Dr Brunton’s evidence 261 - 262
(e) Applicants’ submissions 263 - 264
(f) Submissions for respondents 265 - 272
(g) Conclusions 273 - 280
(v) Laws and customs concerning land
(a) The early writings 281 - 284
(b) Aboriginal evidence about land 285 - 286
(c) Dr Palmer’s evidence 287 - 307
(d) Dr Brunton’s evidence 308 - 324
(e) Applicants’ submissions 325 - 329
(f) Submissions for respondents 330 - 347
(g) Conclusions 348 - 351
(vi) Customs and beliefs
(a) Circumcision 352 - 354
(b) Kangaroo skinning 355 - 357
(c) Spiritual beliefs 358 - 368
(d) Marriage 369 - 376
(e) Sexual transgressions 377
(f) Payback 378
(g) Funeral rites 379 - 380
(h) Tools, weapons and food-getting 381 - 383
(vii) Social interaction
(a) The early writers 384 - 389
(b) The Aboriginal evidence 390
(viii) The expert evidence about the 1829 situation
(a) Dr Palmer 391 - 394
(b) Dr Brunton 395 – 402
(ix) Submissions about the 1829 situation
(a) The Applicants’ submissions 403 - 406
(b) Respondents’ submissions 407 - 423
(x) Conclusions about the 1829 situation 424 - 454
V Has there been a continuation of Noongar laws and customs
from 1829 until the present day?
(i) Preliminary 455 - 459
(ii) Community identification and interaction
(a) The Aboriginal evidence 460 - 595
(b) Comment on the Aboriginal evidence 596 - 601
(iii) Customs and beliefs
(a) Spiritual beliefs 602 - 606
(b) Marriage 607 - 644
(c) Death and funerals 645 - 649
(d) Hunting, fishing and other food-gathering 650 - 684
(iv) Laws and customs concerning land 685 - 700
(v) Submissions about the continuity of acknowledgement
and observance of 1829 laws and customs
(a) The Applicants’ submissions 701 - 706
(b) The State’s submissions 707 - 731
(c) The Commonwealth’s submissions 732 - 744
(d) WAFIC’s position 745
(e) The local government authorities’ submissions 746 – 749
(vi) Conclusions about the continuity of acknowledgement
and observance of 1829 laws and customs
(a) Some peripheral matters 750 – 761
(b) Continuing observance of rules relating to land 762 – 791
(c) Connection with the Perth Metropolitan Area 792 – 799
VI What Noongar native title rights exist today?
(a) Preliminary 800
(b) The geographic limits of any surviving native title
rights and interests 801 – 805
(c) What are the surviving rights and interests?
(i) The Applicants’ claims 806 – 812
(ii) Section 223(1)(c) of the Act 813 – 814
(iii) The claim to a right of occupation, use and
enjoyment of the lands and waters 815 – 841
VII The Bodney applications
(i) Nature of the applications 842 – 843
(ii) Mr Bodney’s evidence 844 – 866
(iii) Other evidence 867 – 868
(iv) Submissions 869– 871
(v) Conclusions 872 – 876
VIII Disposition of proceedings 877 – 883
IX Postcript: the State’s notice of motion of 25 August 2006
(i) Content of the motion 884 -898
(ii) Reaction to the motion 891 - 898
(iii) The State’s submissions in support of the motion 899
(iv) The evidentiary background 916 - 922
(v) The Applicants’ submissions on the strike-out motion 923
(vi) Issues raised by the State’s motion of 25 August 2006 924
(vii) Validity of the order for the separate question 925 - 930
(viii) Is it open to the State to complain about the order for
a separate question? 931 - 934
(ix) Has the separate question order excluded relevant evidence? 935 - 939
(x) Conduct of the strike-out motion 940 - 944
(xi) Disposal of the motion 945 – 951
(xii) Concluding comment 952

I The proceedings
(i) The 1998 applications

3	Between November 1994 and September 1998, 13 applications seeking native title determinations, in relation to land and waters in and around the Perth metropolitan area, were lodged with the Registrar of Native Title pursuant to the Act, as it then stood (‘the old Act’). None of these claims was resolved by mediation. All the claims were referred to this Court, either under s 74 of the old Act, before 30 September 1998, or pursuant to the transitional provisions of the Native Title Amendment Act 1998 (Cth) (‘the Amending Act’) that took effect on that day. Where it is necessary to distinguish between the old Act and the Act, as so amended, I will refer to the latter as ‘the Amended Act’.
4	Application WAG 6009 of 1996 related to Perth airport. In Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609; 109 FCR 178, Lehane J held that any native title over this land had been extinguished by its acquisition in fee simple by the Commonwealth of Australia (‘the Commonwealth’) on various dates before 1986. On 13 November 2000, his Honour made a formal order in which he determined that native title did not exist over the airport land. I need not further regard this application.
5	Five of the remaining 12 applications were made by Christopher Robert (‘Corrie’) Bodney. Four of those claims related to small areas of land in the Perth region, being land at Hartfield Park, Wanneroo Road, Burswood Island and Swanbourne respectively. The fifth claim (‘the main claim’) involved a much larger area of land, with its adjoining sea out to 12 nautical miles from the coast. After their transfer to this Court, those applications were numbered, respectively, WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998 and WAG 149 of 1998. I will refer to these five applications as ‘the Bodney applications’.
6	A sixth application (WAG 141 of 1998) (‘the Bropho application’) was lodged by Robert Charles Bropho on his own behalf.
7	The remaining six applications were lodged either by Mr Bropho, on behalf of the ‘Swan Valley Nyungah Community’, or by people associated with Mr Bropho. Four of these applications related only to small areas of land. Two involved substantial areas of land and waters, including sea to the 12 nautical mile limit. The six applications were numbered WAG 142 of 1998, WAG 143 of 1998, WAG 6128 of 1998, WAG 6159 of 1998, WAG 6239 of 1998 and WAG 6283 of 1998. With some looseness of language, these six applications may be called ‘the Swan Valley Nyungah applications’. There was considerable overlap between the Bodney applications on the one hand and the other seven applications on the other.
8	All of these matters have now been given the prefix WAD due to requirements of the Court’s electronic data management system.

(ii) The Combined Metro application

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On 12 April 1999, the Western Australian District Registrar of the Court made an order for combination of all the Swan Valley Nyungah applications. He further ordered that application WAG 142 of 1998 be the lead application and the parties to the combined application be all the parties to any of the Swan Valley Nyungah applications. The combined application became generally known as ‘the Combined Metro application’.

10

On 7 January 2000, French J made orders for notification, under s 66 of the Act, of the land and waters covered by the Combined Metro application that had not been previously notified: see Bropho v State of Western Australia [2000] FCA 1.

(iii) The hearing before Beaumont J

11	Numerous orders were later made in preparation for hearing the Combined Metro application, including for joinder of additional parties. On 26 July 2000, Lehane J directed there be a joint trial, in about September 2001, of the Bodney applications, the Bropho application and the Combined Metro application.
12	The joint trial commenced before Beaumont J on 18 September 2001. Between that date and 3 April 2003, evidence was taken spasmodically, over a total of 19 days, at locations in and around the Perth metropolitan area. The hearing was not satisfactory. It suffered from inadequate preparation, and representation, on behalf of the applicants and was bedevilled by lengthy arguments about procedural matters, including access to information.
13	Mr Bodney and Mr Bropho appeared in person throughout the hearing. The Combined Metro applicants were intermittently represented by a succession of lawyers apparently acting on a pro bono basis. They did the best they could, without having the benefit of expert advice or evidence or the opportunity to prepare a coherent case. Some of the respondents were legally represented throughout the hearing.
14	When the trial was adjourned on 3 April 2003, the evidence was still incomplete. On the following day, 4 April 2003, Beaumont J made an order, pursuant to Order 29 rule 2 of the Federal Court Rules, that the following question be decided separately from and before any other questions in the Combined Metro application:

‘1. what are the communal, group or individual rights and interests, if any, of Aboriginal peoples in relation to land or water in the claim area, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples; and

(b) the Aboriginal peoples, by those laws and customs, have a connection with the land or waters;

2. which Aboriginal people, if any, hold those rights and interests.’

15

Shortly after this order was made, Beaumont J found it necessary, on medical grounds, to retire from the matters. At a directions hearing before French J, the parties agreed the hearing would be completed by a different judge, but on the basis that the evidence taken by Beaumont J would not be repeated. On 13 June 2003, French J made the following formal orders:

‘1. There be a new trial of the native title application in WAG 142 of 1998 to be tried together with new trials of the applications WAG 137 – 141 and 149 of 1998 (limited in the latter case to the area of its overlap with the other applications).

2. The transcript of evidence and exhibits etc. in the proceedings before the Court already heard in the above matters be received into evidence at the new trials subject to any objections as to the admissibility of particular evidence which had been made and not ruled upon in the previous proceedings and subject to such restrictions as have been ordered until such restrictions are lifted or varied by the trial judge.

...

4. The transcript of evidence already taken may be supplemented by such site visits and such further oral evidence as the trial judge directs.’

16

Soon after those orders, I was asked to take over the matters. At a directions hearing held by me on 19 August 2003, I indicated I understood the agreement embodied in French J’s orders to require me to read and apply the evidence already given (to the extent that any party relied upon it), along with such further evidence as the parties might adduce. No party disagreed with that understanding.

(iv) The motion to strike-out the Bodney applications

17	At about the time the matters were assigned to me, the Combined Metro applicants filed a notice of motion for orders, pursuant to s 84C(1) of the Act, striking out each of the Bodney applications. It was said these applications did not comply with the requirements of s 61 of the Act.
18	Section 84C(2) of the Act requires the Court to consider a strike-out application under s 84C(1) ‘before any further proceedings take place in relation to the main application’. Mr Bodney did not respond to the strike-out application by seeking to amend any of his applications. Accordingly, on 19 August 2003, I heard argument on the strike-out application.
19	On 25 August 2003, I made orders striking out all the Bodney applications: see Bodney v State of Western Australia [2003] FCA 890. It was my opinion that none of them satisfied the requirements of the relevant version of s 61 of the Act. All of the applications had been made under the old Act, but two of them (WAG 137 of 1998 and WAG 149 of 1998) had been amended since the commencement of the Amending Act. I followed two previous first instance decisions, in holding that s 61 of the Amended Act applied to the amended applications.
20	I held the three applications needing to be evaluated under the old s 61 were defective because of Mr Bodney’s failure to ‘describe or otherwise identify’ the persons on whose behalf the application was made. The two applications that had been amended after the commencement of the Amending Act provided a fuller description of the claimant group but it appeared clear, from evidence given before Beaumont J, that neither of them was authorised by the members of the described group in accordance with s 251B of the Act, as required by the new s 61.
21	On 24 August 2004, a Full Court allowed an appeal against my decision and set aside the strike-out orders: see Bodney v Bropho [2004] FCAFC 226; 140 FCR 77. The Full Court was divided as to whether the new form of s 61 applied to the two amended applications. However, all members of the Court thought Mr Bodney should have a further opportunity to amend his applications in such a manner as to avoid the difficulties raised against them.

(v) The Single Noongar application

22

On 10 September 2003, a new proceeding (WAG 6006 of 2003) was instituted. This proceeding has been referred to as the ‘Single Noongar application’ (or Single Noongar [No 1]), on account of the fact that it was made by 80 named applicants ‘on behalf of all Noongar people’. The filed Native Title Determination Application stated the named applicants ‘are members of the native title claim group and are authorised to make the application, and deal with matters [which] arise in relation to it, by all the other persons in the native title claim group’. The application described the Noongar people in this way:

‘ The descendants of the Noongar apical ancestors listed in Attachment A1;

The members of the Noongar families whose surnames are listed in Attachment A2;

The descendants, of the Noongar ancestors of families whose surnames are listed in Attachment A2;

The members of the Noongar families whose surnames are listed in Attachment A3;

The descendants, of the Noongar ancestors of families whose surnames are listed in Attachment A3; and

All other Noongar people identifying and accepted in accordance with Noongar customs and traditions as understood by Noongar people and handed down by Noongar Elders.

Identification of a Noongar person is through biological descent from a Noongar person but can include people incorporated into the Noongar community through adoption, in accordance with Noongar custom and tradition.

Identification of a Noongar family is through biological descent from a Noongar person but can include people incorporated into the Noongar community through adoption, marriage or defacto marriage and in accordance with Noongar custom and tradition.’

Attachment A1 identified 99 apical ancestors. Attachments A2 and A3 set out some 400 family names.

23	Attachment B to the application contained a detailed description of the external boundary of the claimed area (‘the claim area’). The description was illustrated by a map (Attachment C) which showed that the external boundary of the claim area extends from a point on the western coast of Australia in the Shire of Coorow, just north of Jurien, roughly easterly to a point approximately north of Moora and then roughly south-easterly to intersect the southern coast of Australia at a point slightly west of Esperance. The claim area contained some off-shore islands, including Rottnest and Carnac Islands, and the sea abutting the entire coastal area, and the claimed islands, to the three nautical mile limit. The claim area excluded a relatively small strip of coastal land in the Busselton-Margaret River district. This land is the subject of a separate claim, generally called ‘Single Noongar No 2’. The Single Noongar [No 1] claim area excluded all land and waters that are, or were, subject to a past act attributable to the Commonwealth or the State of Western Australia (‘the State’), including the grant of freehold title.
24	It will be appreciated that the claim area includes the Perth metropolitan area.
25	Schedule E of the application set out the native title rights and interests claimed by the applicants:

‘The applicants claim the right to occupation, use and enjoyment of the lands and waters in accordance with and subject to their traditional laws and customs (or current laws and customs as they have adapted and changed from those traditional laws and customs).

The applicants acknowledge that these rights may co-exist with other statutory or common law rights in relation to some lands and waters, subject to the force and operation of laws of the Commonwealth and the State.

The right to occupation, use and enjoyment of the lands and waters includes the right to:

(a) live on and access the area;

(b) use and conserve the natural resources of the area for the benefit of the native title holders;
(c) maintain, use, manage and enjoy the area for the benefit of the native title holders, that is to:

i) maintain and protect sites of significance to the native title holders and other Aboriginal people within the meaning of that term in the Native Title Act 1993;
ii) inherit, dispose of or give native title rights and interests to others provided that such persons are Aboriginal people within the meaning of that term in the Native Title Act 1993;
iii) right to determine and regulate membership of, and recruitment to, the native title holding group, provided that such persons must be Aboriginal people within the meaning of that term in the Native Title Act 1993;
iv) regulate among and resolve disputes between, the native title holders in relation to the rights of possession, occupation, use and enjoyment of the area;
v) conduct social, religious, cultural and economic activities on the area;
vi) exercise and carry out economic life on the area, including harvesting, fishing, cultivating, management and exchange of economic resources;

(d) conserve, use and enjoy the natural resources of the area, for social, cultural, economic, religious, spiritual, customary and traditional purposes; and make decisions about and to control the access to, and the use and enjoyment of, the area and its natural resources by the native title holders;
(e) the right to control access and use between the native title holders and any other Aboriginal people who seek access to, or use of, the claim area in accordance with the traditional law and custom;
(f) the right to teach and pass on knowledge of the applicant group’s traditional laws and customs pertaining to the area and knowledge of places in the area;
(g) the right to learn about and acquire knowledge concerning, the applicant group’s traditional laws and customs pertaining to the area and knowledge of places in the area.

In relation to:

(a) any areas where there has been no previous extinguishment of native title;
(b) any area of natural water resources that is found not to be tidal;
(c) any areas affected by category C and D past and intermediate period acts;
(d) s47 Pastoral leases held by native title claimants;
(e) s47A Reserves act covered by claimant applications; and/or
(f) s47B Vacant Crown Land Covered by claimant applications,

the applicant claims exclusive possession, occupation, use and enjoyment of those areas.’

26	The application identified the relevant representative Aboriginal/Torres Strait Islander body as South West Aboriginal Land and Sea Council (‘SWALSC’). It also contained considerable additional information, which it is not necessary to set out.
27	On 2 October 2003, French J made directions for mediation and negotiation of the Single Noongar application and a number of smaller claims (outside the Perth area) that overlapped that application. I understand there were discussions between the parties but no substantive agreement was reached.

(vi) Pre-trial orders and directions

28	On 6 October 2003, Christine Cooper, a solicitor employed by SWALSC, filed a notice of motion on behalf of the Single Noongar applicants seeking an order for the combination of the Single Noongar application with the Combined Metro application (WAG 142 of 1998).
29	I heard submissions about the motion on 8 October 2003. It is convenient to explain what happened by reference to paras 6-9 of the Reasons for Judgment delivered by me on the following day:

‘The single Noongar claim covers a significant portion of Western Australia. Its northern boundary is a line running east from a position on the coast north of Jurien. The claimed area then runs south-east to a point on the Great Australian Bight near Esperance. Subject to internal exceptions, the claimed area takes in the whole of the south-west of the State and much, if not all, of the Western Australian wheatbelt. Importantly for present purposes, it includes the whole of the area covered by the Perth Metro claims, except that the single Noongar claim extends only three nautical miles off-shore, whereas WAG 142 of 1998 claims waters to the twelve nautical mile limit.

At a directions hearing on 1 October 2003, I was informed of a proposal to amend WAG 141 of 1998 and WAG 142 of 1998 in such a way as to combine them with the single Noongar claim. I directed that any application to that effect be filed and served not later than 6 October 2003 and be made returnable before me on 8 October 2003. Such an application was made. However, it sought to amend only WAG 142 of 1998, a decision having been taken by Mr Bropho to seek leave to discontinue matter WAG 141 of 1998.

When the motions came before me yesterday, it immediately became apparent that there was no opposition to the application for leave to discontinue WAG 141 of 1998, except by Mr Bodney. However, Mr Bodney was not able to show the discontinuance would prejudice him in any way. I granted leave. This left only WAG 142 of 1988, of the seven applications transferred to the Court on 30 September 1998. That matter was subject to a strike-out application by Mr Bodney which I then heard and dismissed.

I turn to the applicants’ motion to amend WAG 142 of 1998. A companion motion was filed in the single Noongar claim, by solicitors acting for the South West Aboriginal Land and Sea Council (‘SWALSC’). At the hearing of the motions, it became apparent there was no real opposition to the proposed amendments. The real issue was what should happen next.’

30

Counsel for the Combined Metro applicants and counsel for SWALSC had submitted it was unnecessary for me to do more than to make a combination order, leaving further pre-trial steps to be governed by the general Single Noongar directions that had already been made by French J. However, counsel for some of the respondents, including the State and the Commonwealth, had disputed that view. At para 14 of my Reasons, I summarised their position in this way:

‘These counsel express concern at the prospect of further prolonged delay in the Court determining whether native title exists over land and waters in and around Perth. They point out that the first application in respect of the Perth metropolitan area, the claim that became matter WAG 141 of 1998, was lodged as long ago as November 1994. They rightly say that prosecution of the claims has been attended with considerable delay and they contend that there is a substantial public interest in their early resolution. The respondents say that, if WAG 142 of 1998 becomes part of the vast single Noongar claim, without being subject to any special measures to ensure its early determination, then resolution may be postponed for years.’

31	I went on:

‘There is considerable force in the matters put by the respondents. It had been my intention to take evidence in relation to the Perth Metro claims during the next two weeks; that is, the weeks commencing 13 and 20 October 2003. The evidence would not necessarily have concluded within that period; but it would have been substantially complete. It should have then been possible to complete the hearing with little further delay. The filing of the single Noongar claim has made it impractical to take that course. Section 67(1) of the Act requires that, if two or more proceedings relate to the same area (in whole or in part), the Court must ensure they are dealt with in one proceeding. Given that the single Noongar claim has yet to be notified under s 66 of the Act, it cannot properly proceed to hearing during the next two weeks.

Although none of the respondents mentioned any particular problem that might be caused by delay in finalising the Perth Metro claims, they understandably feel frustrated and concerned about the delay occasioned by cancelling the projected hearing. I think they are right to suggest it is important that every effort be made to minimise further delay. However, this must be done in such a way as to be consistent with the scheme and policy of the Act, and to be fair to the single Noongar claimants.’

32

Counsel for the State suggested it would be practicable, and desirable, to hear that aspect of the Single Noongar claim which related to the land and waters within the Combined Metro claim in advance of any hearing concerning the balance of the Single Noongar area. I thought there was merit in that suggestion and, after discussing various practical issues, I expressed the hope that it would be possible to hear the Perth section of the single Noongar claim in about October 2004. On 9 October 2003, I made orders in WAG 142 of 1998 that included the following:

‘1. The applicants be granted leave to amend Native Title Determination Application WAG 142 of 1998 pursuant to s 64 of the Native Title Act 1993 (Cth), so that it is combined with and included in Native Title Determination Application WAG 6006 of 2003.
2. The amended application be in the form of WAG 6006 of 2003 as filed on 10 September 2003 in accordance with the Minute of Proposed Amended Native Title Application attached to the affidavit of Albert Corunna dated 6 October 2003.
3. Both of these applications be now conducted as one application.

4. Application WAG 6006 of 2003 be the lead application.

...

6. Subject to any contrary order by a Judge, that part of the combined application as relates to the land and waters covered by application 142 of 1998 ("the Perth claim") shall be heard in a separate proceeding to commence during the first week of October 2004 ...
7. The evidence already given in respect of matters WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998, WAG 141 of 1998, WAG 142 of 1998 and WAG 149 of 1998 is to be evidence in the hearing to commence in October 2004 subject to relevance and all just objections, including any new objections taken by any person who was not a party to any of those seven matters.
8. Subject to the above, the directions made by French J on 2 October 2003 in relation to matter WAG 6192 of 1998 are to apply to the Perth section claim as if they were set out seriatim herein.
9. All parties have liberty to apply to me, by arrangement with my associate, in relation to any matter connected with the separate hearing of the Perth section claim.’

33	In matter WAG 6006 of 2003, I made orders corresponding with the first four of the above orders.
34	On 9 October 2003, the Bropho application (WAG 141 of 1998) was discontinued. The only surviving applications affecting any part of the Perth metropolitan area were then the Single Noongar application (insofar as it did affect that area) and the five Bodney applications (after they were reinstated by the Full Court on 24 August 2004).
35	On 28 November 2003, Ms Cooper filed a further notice of motion seeking an order to combine the Single Noongar application with ten overlapping claims. On 15 June 2004, French J dismissed that motion. The ten claims remain in existence but none of them relates to the area with which these reasons are directly concerned.
36	It gradually became apparent that it would not be practicable to commence the hearing of the Perth claims in October 2004. SWALSC suffered delay in procuring a promise of the funding that was necessary for it to engage experts. Once experts were retained, they endeavoured to prepare their reports as quickly as possible. However, it became obvious that satisfactory reports could not be finalised in time for an October 2004 hearing. Accordingly, on 22 July 2004, I abandoned the idea of an October 2004 hearing and made new directions designed to enable a hearing in 2005.

(vii) Pre-trial rulings

37	Between 22 July 2004 and the commencement of the trial, on 11 October 2005, I made rulings regarding several interlocutory applications. I need not deal with them all. However, I mention five matters.
38	First, despite the reference, in order 6 made on 9 October 2003, to a ‘separate proceeding’, no formal order was made splitting WAG 6006 of 2003. Nor was a separate file number assigned to the ‘separate proceeding’. In retrospect, it would have been desirable for me to take, or direct, those steps at that time. Instead, after hearing submissions from the parties, on 1 April 2005, I directed the trial of a separate question. The form of this question, as later amended, is set out at para 47 below.
39	Second, it will be recalled that the Full Court adverted to the possibility that Mr Bodney might amend his applications in order to overcome the perceived authorisation problems. Although Mr Bodney had previously not shown interest in taking this course, I drew his attention to the Full Court’s position. On 1 April 2005, I made the following order:

‘Leave be granted to the applicant, in each of matters WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, WAD 140 of 1998, and WAD 149 of 1998, to file an amended application, if the applicant so wishes. Any such amended application is to be filed and served not later than 31 May 2005. Each of these applications, and the strike out motions in relation to them, shall be heard in conjunction with the Perth Metro part of the Single Noongar claim (WAD 6006 of 2003).’

40	I subsequently extended the date for filing any amended application to 1 July 2005. However, Mr Bodney did not amend any of his applications. Nor did he seek any further extension of time. In the hearing that was subsequently conducted by me, he cross-examined most witnesses; but he did not adduce evidence additional to what he had given before Beaumont J.
41	In their closing written submissions, counsel for the Single Noongar applicants expressed in the following way their clients’ attitude to the Bodney applications:

‘The Single Noongar claimants acknowledge that Mr Bodney and those represented by him are members of the Noongar people as described in the Single Noongar claim. The Single Noongar claimants do not, however, acknowledge, that Mr Bodney and some members of his family have exclusive connection with or rights and interests in relation to, the land and waters claimed in the various Bodney claims.’

42	Third, on 15 February 2005, I ordered that: ‘[i]f any party wishes to challenge the authority of the Applicants to make claim WAD 6006/03, that party is to file a strikeout motion with supporting affidavit evidence by 31 March 2005’. The only party who chose to take that course was the Noongar Land Council Aboriginal Corporation (‘NLC’), the former representative body for the area. On 13 May 2005, NLC filed a notice of motion seeking an order striking out the Single Noongar application. The motion was supported by an affidavit of Frank Peter David, who described himself as ‘the Registered Public Officer and acting chief executive officer’ of the NLC. The affidavit made many assertions of fact, and some allegations of misconduct, but it did not challenge the material about authorisation that was set out in the Single Noongar application. Nor did it raise any other ground for striking out that application. However, having in mind the requirement of s 84C(1) of the Act, I listed the motion for hearing on 5 August 2005. On that day, Mr David appeared on behalf of NLC, accompanied by Mr R Yarran. He developed the matters set out in his affidavit but put no argument to me relevant to a strike-out order. Accordingly, I dismissed the strike-out motion.
43	Fourth, on 19 August 2005, a notice of motion was filed by Blake Dawson Waldron, solicitors, seeking an order for the joinder as respondents of some 40 persons (individuals and companies) who were said to hold interests in pastoral leases over land that was situate in the area covered by the Single Noongar claim, but outside the area which was the subject of the ‘separate proceeding’ and separate question.
44	I considered this motion at a hearing on 23 August 2005. The argument put by the applicants for joinder was that, although they did not have an interest in any land within the area that was subject to the ‘separate proceeding’ and separate question, the determination of the separate question was likely to have a significant effect on the fate of that part of the Single Noongar claim that concerned land and waters outside that area, including land in which they did have interests.
45	I accepted this possibility: see s 86 of the Act, noting particularly para (c). However, it seemed to me this did not mean the applicants for joinder fell within the class of persons referred to in s 84(3) of the Act in relation to the land and waters which were the subject of the ‘separate proceeding’ and separate question. Although s 84(3)(a)(iii) refers to a person whose ‘interests may be affected by a determination in the proceedings’, it is necessary there be a direct interest, not an interest that is indirect or remote: see Chapman v Minister for Land and Water Conservation (NSW) [2000] FCA 1114 at [10]. The word ‘interests’ ought not to be read narrowly. However, it seemed to me insufficient that a person be able to show that the decision in respect of the separate question might have a flow-on effect to the wider Single Noongar claim. Accordingly, I did not accede to the application for these people actively to participate in the hearing of the separate question. I directed that the notice of motion, insofar as it concerns WAD 6006 of 2003 generally, be considered by French J (who retained general responsibility for the Single Noongar application) at a date to be advised. I also suggested that a representative of the pastoral lessees might wish to attend the forthcoming trial as an observer. A solicitor representing those persons did attend for much of the time.
46	Fifth, during the trial, the solicitor for the State applied for an order repairing my omission formally to establish the proposed separate proceeding in respect of the area described in the separate question. I indicated I would accede to that application and invited the parties to consult regarding the form of the order. On 21 December 2005, I made the following substantive orders:

‘1. Pursuant to Order 78 rule 6(5) of the Federal Court Rules:

(a) application WAD 6006 of 2003 be divided into two parts, being Part A (as delineated in the attached Map 1) and Part B being the balance; and

(b) Part A of the application be considered separately and prior to Part B.

2. Pursuant to section 67 of the Native Title Act 1993 (Cth) and Order 29 rule 5 of the Federal Court Rules, Part A of application WAD 6006 of 2003, and application WAD 149 of 1998 to the extent it overlaps with the land and waters hatched on the attached Map 2, and all of native title determination applications WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, and WAD 140 of 1998 be heard together in a separate proceeding (‘the separate proceeding’).

...

4. Save for the orders made by French J on 22 September 2005 in application WAD 6006 of 2003, all orders made, all documents filed and all evidence received in applications WAD 6006 of 2003 and WAD 149 of 1998, WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, WAD 140 of 1998 shall be taken to also be orders made and documents filed and evidence in the separate proceeding.’

47	By order 5, I further amended the form of the separate question so as to make it read:

‘But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA):

(i) does native title exist in relation to land and waters in the area of the separate proceeding:

(a) that part of the area the subject of application WAD 6006 of 2003 which was the subject of application WAD142 of 1998 immediately prior to that application being combined with and included in application WAD 6006 of 2003; and

(b) that part of the area the subject of WAD 149 of 1998 which lies seaward of the area the subject of WAD 6006 of 2003 and does not overlap the area claimed in WAD 192 of 1998 (YUED).

(ii) if the answer to (i) above is in the affirmative, who are the persons or each group of persons holding the common or group rights comprising the native title; and

(iii) what is the nature and extent of the native title rights and interests in relation to the area?

The land and waters referred to in this question included the whole of the land and waters claimed by Mr Bodney. Although the land referred to in the question includes substantial areas of non-urban land, it is convenient to use the term ‘Perth Metropolitan Area’ to refer to all the relevant land and waters.

48

The effect of those orders was to make Part A of the application the ‘separate proceeding’ envisaged on 9 October 2003. I append to these reasons copies of Maps 1 and 2, referred to in these orders. Map 1 shows the relationship between the Perth Metropolitan Area and the remainder of the claim area. Map 2 is a larger scaled map of the Perth Metropolitan Area.

(viii) The hearing

49	The hearing of the separate proceeding commenced in the Commonwealth Law Courts, Perth on Tuesday, 11 October 2005. The Single Noongar applicants (hereafter ‘the Applicants’) were represented throughout by Mr V B Hughston SC and Ms T L Jowett, the State by Mr S Wright and Mr G Ranson, the Commonwealth by Ms R Webb QC and the Western Australian Fishing Industry Council (‘WAFIC’) by Mr M McKenna. Mr P Wittkuhn appeared for various local government authorities but participated in the hearing only intermittently. Mr Bodney appeared on his own behalf, as applicant in the Bodney applications and a respondent to the Single Noongar application. Mr David sought and obtained leave to appear for the NLC, a respondent to the Single Noongar application, for the limited purpose of cross-examining expert witnesses and making submissions at the end of the case. Mr Kevin Miller, a respondent, appeared for himself. Although there were also respondents who did not participate in the hearing, it is convenient to use the expression ‘the parties’ to refer only to the parties identified in this paragraph.
50	After opening addresses were made on behalf of all the parties, Mr Hughston tendered documentary material, including expert reports, and called Dr John Host, an historian. Over a period of three days, Dr Host and a linguist, Dr Nicholas Thieberger, were cross-examined on their written reports.
51	On Friday, 14 October, the Court commenced a total of 11 days ‘on-country’ hearings. The Court sat at Jurien Bay, Albany, Toweringup Lake near Katanning, Dunsborough near Busselton, Kokerbin Rock and Djuring in the Kellerberrin district and, in Perth, at Swan Valley and Kings Park. While ‘on-country’, the Court heard the evidence of 30 Aboriginal persons and inspected a number of sites. At Kings Park, counsel for the Applicants also called two anthropologists who had assisted Dr Kingsley Palmer, the applicants’ consultant anthropologist, by interviewing people within the claim group.
52	The procedure adopted by counsel in relation to the Aboriginal witnesses worked well. Prior to the hearing, written statements of these witnesses had been filed and served. When each witness was called, he or she confirmed the statement (often after making minor amendments) and then Mr Hughston or Ms Jowett asked a brief series of questions, to bring out the main points of the witness’ statement, before the witness was cross-examined. The ‘on-country’ hearings ran very smoothly, thanks to excellent organisation by the Court’s remote hearings staff and the constant co-operation of the parties and their representatives.
53	After completion of most of the Aboriginal witnesses’ evidence, Dr Palmer gave evidence, over three days, in the Commonwealth Law Courts Building in Perth. At the end of that time, on 2 November 2005, the hearing was adjourned until 5 December 2005. On that day, the third anthropologist who assisted Dr Palmer was cross-examined. Thereafter, over that day and the succeeding two days, two expert witnesses called by the State were cross-examined. They were Dr Ron Brunton, an anthropologist, and Ms Debra Fletcher, an historian.
54	At the conclusion of this evidence, on 7 December, the hearing was adjourned to enable counsel, and the unrepresented parties, to prepare and file written submissions.
55	The last written submissions were filed on 18 May 2006. On 23 June 2006, the Court held a video-link hearing between Sydney and Perth for the purpose of oral discussion of some of the matters raised in these submissions. At the conclusion of that hearing, I reserved judgment in the case.
56	I have been informed that, sadly, two of the Aboriginal people who gave evidence before me have since passed away. Accordingly, it would be inappropriate for me to use their names. In these reasons, I will refer to them as ‘Mr WW’ and ‘Mr MW’ respectively. Both these people were named applicants in matter WAD 6006 of 2003. I have directed their names be removed from the Court record.

(ix) The formal issues in the cases

57	Having regard to the above events, the issues now before the Court are as follows:

(a) In relation to each of Mr Bodney’s five applications: first, whether the application is properly authorised and, second, whether it succeeds on the merits. As will appear, I have reached a conclusion adverse to Mr Bodney on the merits of each application. I will therefore not need to deal with authorisation.
(b) In relation to Part A of the Single Noongar application, what answers should be given to each of the issues raised by the separate question set out at para 47 above. There being no extant strike out motion in respect of this claim, there is no issue about authorisation.

II Elements of a native title claim
(i) The source of the elements

58

More than once, members of the High Court of Australia have observed that the elements of a native title claim depend upon the terms of the Act, not the common law: see The Commonwealth v Yarmirr (2001) 208 1 at [7] (‘Yarmirr’), Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [16] (‘Ward HC’), Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 at [32] (‘Yorta Yorta’). In Yorta Yorta at [75], Gleeson CJ, Gummow and Hayne JJ said: ‘Native title, for present purposes, is what is defined and described in s 223(1)’ of the Act. That subsection reads as follows:

‘(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.’

(ii) The effect of s 223(1) of the Act

59	Gleeson CJ, Gummow and Hayne JJ analysed the effect of s 223 (1) in Yorta Yorta at [33] – [35]. They said:

‘ "Native title" means certain rights and interests of indigenous peoples. Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters. The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law. It will be necessary to return to this characteristic.

Secondly, the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law.

Thirdly, the rights and interests in relation to land must be "recognised" by the common law of Australia ... Three separate strands of argument about this element of the definition of native title will require consideration. First, does this element of the definition permit, even require, consideration of any aspect of the general law as it stood after the decision in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 [‘Mabo’] but before the enactment of the Native Title Act? Secondly, does this element of the definition carry within itself any rule or principle relating to extinguishment, abandonment, or loss of native title rights, by which it can be decided whether native title rights which existed at sovereignty may no longer be the subject of a determination of native title under the Native Title Act? Thirdly, what, if anything, does this element of the definition of native title say about the significance that is to be attached to the identification of what traditional law or custom may have said, at the time sovereignty was first asserted, about the rights and interests of peoples in the land or waters in which native title is now claimed?’ (Original emphasis, footnotes omitted).

60	It is convenient to note and adopt some observations about s 223 (1) made in the final submissions by counsel for the applicants:

‘In the joint judgment in Yorta Yorta, Mabo ... is cited as providing an explanation of the consequences of sovereignty upon existing indigenous rights and interests in land. The fundamental premise from which the decision in Mabo ... proceeded is that the laws and customs of the indigenous peoples of the country constituted bodies of normative rules which could give rise to and had in fact given rise to, rights and interests in relation to land or waters. The fundamental premise from which the [Act] proceeds is that the rights and interests with which it deals can be possessed under traditional laws and customs.

As the definition in s.223(1) refers to traditional laws acknowledged "and" (as opposed to "or") traditional customs observed, there is no need to distinguish between what is a matter of traditional law and what is a matter of traditional custom. The Full Court in Alyawarr has stated ... that this does not require fine distinctions to be drawn between legal rules and moral obligations. Nevertheless, there must be some kind of "rules" having a normative content, and those rules must derive from a body of norms or normative system that existed, before sovereignty.

In Yorta Yorta, the High Court noted that the reference to a normative "system" of traditional laws and customs may be distracting if undue attention is given to the word "system", particularly if it were to be understood as confined in its application to systems of law that have all the characteristics of a developed European body of written laws. Similarly, the rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts. The application of common law or Eurocentric concepts of "property" or of "normative systems" is likely to mislead:

"The rights and interests under traditional laws and customs will often reflect a different conception of ‘property’ or ‘belonging’. But none of those considerations denies the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener."’ (Footnotes omitted. Original emphasis. The concluding quotation comes from the judgment in Yorta Yorta of Gleeson CJ, Gummow and Hayne JJ at [40]. The full reference to Alyawarr is Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442.)

(iii) Communal and group claims

61

All of the present claims are communal or group claims, as distinct from individual claims. The concepts of communal and group rights and interests are not defined or explained by the Act. However, it is legitimate to draw on what Brennan J said about such interests in Mabo: see Alyawarr at [69]. His Honour said at 62:

‘A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands.

The recognition of the rights and interests of a sub-group or individual dependent on a communal native title is not precluded by an absence of a communal law to determine a point in contest between rival claimants. By custom, such a point may have to be settled by community consensus or in some other manner prescribed by custom.’

62	His Honour had previously observed (also at 62) that sub-group and individual rights ‘are, so to speak, carved out of the communal native title’. Gummow J expanded on that idea in Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [73]:

‘The term "native title" conveniently describes "the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants". The native title of a community of indigenous Australians is comprised of the collective rights, powers and other interests of that community, which may be exercised by particular sub-groups or individuals in accordance with that community's traditional laws and customs. Each collective right, power or other interest is an "incident" of that indigenous community's native title.’ (Footnotes omitted)

63

As might be expected, having regard to these statements of principle, there are cases in which communal native title has been recognised over the whole of an area of land, notwithstanding that estate groups were found to have particular rights to parts of that land: see Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (Ward FC1, first Full Court decision) at [203] - [204], Neowarra v Western Australia [2003] FCA 1402 (‘Neowarra’) at [393] and Alyawarr at [69] – [71]. In Alyawarr, the Full Court drew attention to the form of the declaration made in Mabo. Notwithstanding evidence that groups and individuals had particular rights and interests in relation to parts of the Murray Islands, the High Court declared ‘that the Meriam people’ are ‘entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’.

(iv) The Applicants’ submissions about legal principles

64	As counsel for the Applicants submitted, it is difficult to separate questions about the relevant society from questions about laws and customs. The two are interdependent. Counsel referred to an important statement, in Yorta Yorta at [49], by Gleeson CJ, Gummow and Hayne JJ:

‘Laws and customs do not exist in a vacuum ... Law and custom arise out of and, in important respects, go to define a particular society. In this context, "society" is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.’

65	In a footnote, their Honours disclosed they had chosen the word ‘society’, rather than ‘community’, ‘to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group’. Counsel for the Applicants commented:

‘In this respect, the term "society" is clearly not used in its common or usual sense but nor is it used as a scientific or anthropological term of art. It is submitted that the [State’s] anthropological expert, Dr Brunton, despite being instructed to adopt for the purposes of his evidence the meaning of "society" as specified in the joint judgment in Yorta Yorta ... has clearly not done so.’

66

Counsel developed the submission about Dr Brunton’s approach. I will return to it later. However, it is appropriate immediately to note the Applicants’ further submission that the effect of the Yorta Yorta explanation of the meaning of ‘society’ is that it is sufficient ‘that the peoples in question acknowledge and observe what are essentially the same laws and customs. That is, the rights and interests in relation to land which are possessed by those peoples, are possessed under the same normative system. It is that which unites them and makes them a "society"’.

67

Counsel went on:

‘In Alyawarr the Full Court noted that "society" is not a word which appears in the [Act], rather it is a conceptual tool for use in its application. In particular, it does not introduce into the judgments required by the [Act] any technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as "societies". What a determination of native title requires, is a consideration of whether the persons said to be the native title holders, are members of a society or community which has existed from sovereignty to the present time, as a group, united by its acknowledgment of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty.’ (footnotes omitted)

68	In relation to the last matter, counsel noted something said by Brennan J in Mabo, at 61:

‘Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally-based laws and customs as currently acknowledged and observed.’

69	Counsel also mentioned three points made in the Yorta Yorta joint judgment (at [85] and [87]):

(i) evidence that, at some time since sovereignty, some of those who now assert a native title right or interest (or some of those through whom those persons claim) have not exercised those rights or interests ‘does not inevitably answer the relevant statutory questions’; those questions ‘are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question’;

(ii) ‘account must no doubt be taken of the fact that’ both pars (a) and (b) of s 223(1) are cast in the present tense; the questions are ‘about present possession of rights and interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant’ (original emphasis);

(iii) Notwithstanding point (ii), acknowledgment and observance of the laws and customs ‘must have continued "substantially" uninterrupted since sovereignty’. Their Honours went on to explain, at [89], the effect of the qualification ‘substantially’:
‘It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.’

70	Counsel for the Applicants made the additional point that it is not necessary that the relevant rights and interests be communally enforceable. In Yarmirr at [16], Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

‘Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.’ (Original emphasis)

71	Counsel for the Applicants submitted:

‘A right is a non-mandatory entitlement. It exists independently of its exercise and certainly independently of the existence of any present opportunity or capacity to exercise it. The existence of a right does not presuppose any power to enforce it or to have it recognised outside those who acknowledge and observe the laws and customs from which it derives.’ (original emphasis)

72	Counsel cited from Sundberg J in Neowarra at [310], Mansfield J in Alyawarr at first instance, [2004] FCA 472 at [156], and Merkel J in Rubibi Community v State of Western Australia (No 6) [2006] FCA 82 at [115] (‘Rubibi’).
73	Finally, counsel for the Applicants made the general point that:

‘[i]t is a mistake to approach native title on the basis that it is a unitary concept that equates to a common law or Western concept of the "ownership" of land. Native title is sui generis and the use of words like "owner", "ownership" and "title" is apt to mislead. The nature and the incidents of native title must be ascertained as a matter of fact in each case by reference to the relevant traditional laws and customs. There is no impediment to the recognition of usufructuary or non-proprietary rights that derive from a community’s laws and customs. As Gummow J explained in Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 at 169, a particular native title right or interest may comprise no more than a personal or communal right to access an area of land to hunt for or gather food, or to perform traditional ceremonies.’ (Original emphasis)

(v) The respondents’ submissions about legal principles

74

None of the respondents challenged the statements of principle set out above. However, some respondents’ counsel made clear that they took a different approach to the Applicants in relation to identification of the relevant society. Those counsel focused attention on the Perth Metropolitan Area, as distinct from the whole area claimed in the Single Noongar application. For example, counsel for the State said:

‘The [Applicants’] Submissions do not address connection to the Perth Metropolitan Area specifically, but rather appear to invite the Court to find that a Noongar community has a communal native title throughout the whole of the "country in which the Noongar people hold a communal native title" and then to find that because the Perth Metropolitan Area falls within that area, native title exists in the Perth Metropolitan Area. The [State] submits that this approach is legally and procedurally wrong, and that a connection to the Perth Metropolitan Area by particular individuals or families or groups must be demonstrated.’ (Original emphasis)

75

Counsel for the State conceded that, if the Applicants established ‘that there was at sovereignty a single Noongar society’, ‘there are persons alive today who are descendants of the members of that society at sovereignty’. However, they said, that does not mean that issues of descent are irrelevant to the Applicants’ case; the Applicants would need to ‘demonstrate that there are claimants with a descent connection to the Perth Metropolitan Area’.

76

Counsel for the State submitted that the Court must undertake the following steps in assessing the separate question:

‘(a) First, it must identify the relevant "traditional laws and customs". This requires the identification of the society or societies to which the traditional laws and customs belong.
(b) Secondly, it must identify the extent to which the identified traditional laws and customs have been continuously "acknowledged" and "observed" from sovereignty to the present day. It must also be satisfied that the relevant society or societies have continued to exist.
(c) Thirdly, it must identify whether, by or under those traditional laws and customs which have continued to be acknowledged and observed, the native title claimants have a "connection" to the Perth Metropolitan Area.
(d) Fourthly, if it is satisfied as to each of (a) to (c) above, the Court must identify the rights and interests "possessed" under the traditional laws and customs as presently acknowledged and observed.
(e) Finally, if (a) to (d) above are satisfied, a further step, required by s.225 of the [Act], is that the Court must identify who the persons, or each group of persons, who hold the native title rights are.’

77	The Commonwealth also did not quarrel with the Applicants’ broad submissions, but focused on the concept of ‘society’. In submissions prepared jointly with her instructing solicitor, Ms Webb said:

‘The "society" must be a body of persons united in and by its observance of a body of law and custom. It does not necessarily follow that the society is the native title holding group. Within any identifiable society, there may be lesser groups or communities which hold the communal native title in respect of particular areas. That is to say, not all members of an identifiable society will hold native title in respect of an entire area with which the "society" as a whole identifies. This is not a matter which can be left to intramural considerations by the society itself; it is the essence of a determination of native title under the [Act] which requires the Court to make a determination as to who holds native title (if it exists).’

78

This submission may be accepted. However, its limitations should be noted. In any communal native title case, it is necessary for the Court to determine whether the claimed native title extends to the whole, or any part, of the claimed area. However, it is not necessary (and it would be inappropriate) for the Court to become involved in issues as to the intracommunal distribution of special rights over portions of the total area, in relation to which native title has been established. The Court leaves it to the community to determine those issues. Alyawarr illustrates the point: see [81], [110]-[112] and paras 2 and 6 of the formal determination, which is set out at 504-505. See also Ward [FC1] at [202]. Of course, if the applicants have no communal native title rights or interests over any identifiable part of the claimed area, but only if the position is that other people have rights over parts of it, the claim will fail.

79

WAFIC supported the position of the State and the Commonwealth. Mr McKenna said:

‘It is entirely clear that a central aspect of the claim for native title is identification of a normative system (of traditional laws and customs) under which the native title rights and interests are derived and in respect of which those rights and interests are held by a community, group or individual. It is suggested that the rights that may arise from the different connections in this case give rise to different rights in different areas being held by different people. That is not necessarily a bar to all or some of those people holding all or some of the rights claimed, but it does require a more specific approach than the Applicants advocate.’

80	At a later point in his submissions, while discussing a supposed distinction between proprietary and usufructuary rights, counsel said:

‘It is not to the point that the native title rights and interests are characterised as proprietary or usufructory [sic]. The key issue, from WAFIC’s perspective, is the traditional law under which those rights (whether proprietary or usufructory [sic] or both) arise and:

(a) the group of persons who have those rights under traditional law and custom; and

(b) the area over with [sic] the traditional laws and customs mandate the existence of such rights and interests.’

81

Mr Wittkuhn expressed the issue in similar terms.

82

I accept the submission of the State, which is supported by other respondents, that the Applicants must establish a connection with the area that is the subject of the separate question; that is, the land and waters included in Part A (as delineated on the map attached to the order of 21 December 2005 and the appended map 2), the Perth Metropolitan Area. However, I do not accept the submission, expressly or implicitly made by the State and other respondents, that the Applicants must demonstrate this connection in a manner that is specific to the Perth Metropolitan Area and divorced from their asserted connection to the whole claim area. The Perth Metropolitan Area is part of the claim area. If the Applicants succeed in demonstrating the necessary s 223(1) connection between themselves and the whole claim area (or an identified part of it that includes the Perth Metropolitan Area), they demonstrate the required connection to the Perth Metropolitan Area. The whole includes its parts.

III The factual issues in these cases

83	Against the background of these principles and issues, several matters should be noted:
(a)	It is common ground amongst all parties, and clear on the evidence, that the whole of the land within the claim area (including, of course, the land claimed by Mr Bodney, but excluding the off-shore islands and waters below low-water mark) was inhabited by Aboriginal people at the date of settlement of Western Australia, 1829. This date is also often called ‘the date of sovereignty’.
(b)	Although there is some dispute between the parties as to the proportion of the Applicants who can trace their ancestry back to people who were living in the claim area at date of settlement, it is common ground that some can do so. Under those circumstances, the parties agreed it was unnecessary for me to determine the precise number.
(c)	There is an issue as to whether this tracing is sufficient. The respondents contend the Applicants must establish that at least some of them are descended from people living in the Perth Metropolitan Area at date of settlement. I do not accept that contention. If members of the community, on behalf of whom the Applicants make their claim, have native title rights and interests, within the meaning of s 223(1), over the Perth Metropolitan Area, the Applicants are entitled to recognition of that claim, by an appropriate native title determination, regardless of the birthplace and/or residence of the ancestors of the particular people who make the communal claim.
(d)	The Applicants and the NLC assert that, in 1829, there was a community of people, spread throughout the claim area, who were bound together, and distinguished from other Aboriginal peoples, by various factors, including common acknowledgement and observance of a body of laws and customs, including in relation to land. The Applicants and the NLC refer to these people as ‘Noongars’; however, all parties agree the name is not critically important.
(e)	The State, the Commonwealth, WAFIC, the local government respondents and Mr Bodney each dispute that, in 1829, there was a single community occupying the whole claim area. They say that, in 1829, there were a number of smaller, disparate groups in the claim area; common acknowledgement and observance of laws and customs (including in relation to land) operated only within the confines of those groups. Although none of them adopted an unambiguous position, as best I can understand them, the State, the Commonwealth and WAFIC suggest these groups corresponded, at least broadly, with eleven dialect groups identified in a map of south-western Western Australia produced in 1974 by Professor Norman Tindale. Mr Bodney seems to contend for a greater number of even smaller groups.
(f)	If any of the respondents are correct, the Applicants’ claim must fail. Their application is not brought on the basis of their continuity with any or all of the smaller groups. Identification of the relevant 1829 community is, therefore, the first major factual issue.
(g)	The Applicants concede that, since 1829, there have been enormous changes in the lifestyle of the people they call Noongars. Many traditional practices have disappeared, including initiations and ‘corroborees’. However, the Applicants claim the Noongar community has continued to exist, in the sense that members of that community have continued, and still continue, to define themselves as Noongars, to share a body of beliefs and to acknowledge and observe some traditional laws and customs, including in relation to land and waters. They say this behaviour sets them apart from other Aboriginal people and Australian society generally; it means the Noongar community, on behalf of whom the Applicants claim, has a ‘connection’ with the claim area within the meaning of s 223(1) of the Act.
(h)	The State and the Commonwealth dispute the asserted connection. They agree that many Aboriginal people describe themselves as ‘Noongar’, but they argue the degree of departure from traditional laws and customs has been so great that it is not possible to say that ‘Noongars’ continue to observe traditional laws and customs. This is the second major factual issue for determination. It involves consideration, not only of the situation now, but of the question whether there has been continuity of acknowledgement and observance from the date of settlement until now.
(i)	The third issue will arise only if the Applicants are successful in relation to the first two issues: what native title rights and interests have survived since 1829? This question has two elements:

(i) what were the rights and interests that attached to land and waters in 1829?

(ii) which of those rights and interests have survived to the present time?

(j) Finally, it will be necessary to consider, pursuant to s 223(1)(c) of the Act, whether the identified surviving rights and interests ‘are recognised by the common law of Australia’.
IV Was there a single Noongar community in 1829?
(i) The Applicants’ claim

84	In their final written submissions, counsel for the Applicants put their clients’ case in this way:

‘The Noongar people claim a communal native title to a large area of the State’s southwest, of which the Perth Metropolitan claim area forms but a part. Their case is that, at sovereignty, the Single Noongar claim area was occupied and used by Aboriginal people who spoke dialects of a common language and who acknowledged and observed a common body of laws and customs. Those Aboriginal people recognised local and regional names within the broader society but shared a commonality of belief, language, custom and material culture, which distinguished them from neighbouring Aboriginal groups or societies. Responsibility for and control of, particular areas of land or waters, were exercised by sub-groups or families, but the laws and customs under which the sub-groups possessed those rights and interests were the laws and customs of the broader society.’ (Footnotes omitted)

(ii) Source material
(a) Overview

85	The present case is unusual in regard to the number of surviving writings in which European visitors and settlers recorded observations, before and soon after the time of settlement, of Aboriginal society and practices within the relevant geographical area. There are also writings based upon information provided by Aborigines who were alive at, or born shortly after, the time of settlement. Of course, the writers did not make all the observations, inquiries and notes that the present parties (and the Court) would have wished; nonetheless, their works provide a rich resource in addressing the 1829 situation.
86	The evidence also contains extracts from some 20th century anthropological writings.
87	The written material is supplemented, to a minor extent, by evidence given by Aboriginal witnesses in these cases as to oral traditions passed to them about the situation in earlier years.
88	The two professional historians who gave evidence, Dr Host and Ms Fletcher, provided information about the history of black-white relationships in the south-west. This information was necessarily broad and is mostly uncontroversial. Although I found it to be of great interest, it unfortunately provides little direct assistance, in terms of making the findings necessary for resolution of this portion of the case.
89	My discussion about the nature of Aboriginal society in 1829 will draw mostly on the work of the early writers, and the comments about that work that were made by the expert witnesses, especially Dr Host, Dr Palmer and Dr Brunton, with linguistic material derived from Dr Thieberger.

(b) The expert witnesses

90	It is time to introduce the five expert witnesses.
91	Dr Host is an historian. In 1990, he graduated from the University of Western Australia as Bachelor of Arts (First Class Honours). In 1996, the same university awarded him the degree of Doctor of Philosophy with Distinction in History and the UWA Robert Street Prize for the most outstanding Doctorial thesis across all disciplines. Dr Host was employed by the University of Western Australia between 1993 and 2003, including as a tutor and lecturer. During this time, he published a book on Victorian labor history, co-edited a book about Western Australian history and wrote two refereed articles, including in relation to Aboriginal history. Since he left the university in 2003, Dr Host has practiced as a consultant historian. Dr Host provided a report (exhibit A) and a volume of appendices, maps and plates (exhibit B).
92	The other historian, Ms Fletcher, is Principal Research Officer in the Office of Native Title in the Western Australian Department of Premier and Cabinet. Ms Fletcher graduated as a Bachelor of Arts (Double Major in Australian History and English Literature) from the University of Queensland in 1989. She was awarded the degree of Master of Arts in 1996 for a thesis dealing with female criminality in the hearings of the Western Australian Supreme Court between 1890 and 1914. After spending some time in research positions for other governments, she became Senior Research Historian in the Land Claims section of the State Solicitor’s Office of Western Australia from January 2001 to January 2003. She was then appointed Senior Historian in the Land Claims section of the State Solicitors Office of Western Australia. Ms Fletcher took up her present position in July 2004. Ms Fletcher prepared a genealogy report (exhibit S 15), a history report (exhibit S 17) with appendices (S 18) and a supplementary report (exhibit S 19).
93	Dr Palmer obtained his early degrees from English universities: an Honours Bachelor of Arts degree at Sheffield University and the degree of Master of Philosophy from the University of Leeds. He was awarded the degree of Doctor of Philosophy by the Department of Anthropology at the University of Western Australia for a thesis entitled Aboriginal Religion and the Orders of Social Relations. During the period 1977-1982, Dr Palmer held university posts. Apart from that period, since 1973 he has worked continuously in positions, or on projects, concerned with Aboriginal anthropology. He has carried out field work in a number of locations (mostly in Western Australia and the Northern Territory) and published extensively. Dr Palmer has given evidence in several previous native title cases. Dr Palmer’s anthropological report (‘Dr Palmer’s report’) in this case was marked as exhibit C, with appendices (exhibit D) and a genealogical report (exhibit E). A subsequent document, Applicants’ Comments on Dr Brunton’s Expert Report, prepared by Dr Palmer, is exhibit BB.
94	Dr Brunton obtained the degree of Bachelor of Arts, with a major in anthropology and sociology, from Monash University in 1968 and the degree of Master of Arts (First Class Honours) from Sydney University in 1974. In 1988, Dr Brunton was awarded the degree of Doctor of Philosophy by the Department of Sociology, La Trobe University, for a thesis relating to cultural instability in Melanesia. Dr Brunton was employed by the Institute of Public Affairs (‘IPA’) between 1990 and 2001. During that time, he wrote a paper Mabo and Oral Traditions, which was tendered in evidence in these cases, and a number of short, unrefereed papers, published by IPA. At least two of them – Implementing native title: the Government’s response to Mabo (1993, co-authored with Peter Durack) and The human wrongs of indigenous rights (1997) - concerned the concept of native title. Between 1993 and 1999, Dr Brunton held an honorary appointment as Senior Fellow in Anthropology in the Department of Geography and Environmental Studies in the University of Melbourne. From time to time, he held other university positions, as a tutor or lecturer. He also has published widely and written reports for use in litigation, including for legally aided respondents in the Yorta Yorta native title claim. Dr Brunton’s principal report in this case (Dr Brunton’s report) is exhibit S 12. His supplementary report was marked as exhibit S 13, and his witness statement as S 14.
95	Dr Thieberger obtained degrees of Bachelor of Arts (Honours) and Master of Arts (Linguistics) from La Trobe University in 1981 and 1988 respectively. He was awarded the degree of Doctor of Philosophy by the Linguistics Department of the University of Melbourne in 2004. Dr Thieberger has worked as a linguist since 1982, generally in academic positions but including extensive field work, mostly with Australian Aborigines, and then mostly in Western Australia. Between 1990 and 1994, as a Visiting Research Fellow at the Australian Institute of Aboriginal and Torres Strait Islander Studies (‘AIATSIS’), Dr Thieberger was engaged in the construction and maintenance of an electronic database that included dictionaries of Australian indigenous languages. In 2000-2001, Dr Thieberger acted as a consultant to AIATSIS in connection with a report issued by the federal government, The State of Indigenous Languages. Dr Thieberger is currently Project Manager for the Pacific and Regional Archive for Digital Sources in Endangered Culture, a project run by a consortium of three universities. This project aims to establish an archive of digital material in languages of the Pacific, Papua New Guinea and Indonesia. Dr Thieberger’s report was marked as exhibit F.

(c) The journals of pre-settlement explorers

96	The south-western corner of Australia attracted the attention of many maritime explorers (Dutch, French and English) in the years before settlement. Their journals provide fragments of information relevant to the present case.

(d) King George’s Sound writers

97	The evidence includes writings of three people who served, between 1826 and 1832, at King George’s Sound (modern Albany). This was the first European settlement in Western Australia. The three writers were:

(i) Isaac Scott Nind, who was Assistant Surgeon at King George’s Sound from the establishment of a military garrison at that place, in December 1826, until October 1829. After returning to England, Dr Nind wrote a paper (including a vocabulary) Description of the Natives of King George’s Sound (Swan River Colony) and Adjoining Country, which was published in 1831 in the Journal of the Royal Geographical Society of London;
(ii) Collet Barker, who commanded the garrison from December 1829 until March 1831. During much of that period, Captain Barker kept a journal which included observations of ethnographic interest; and
(iii) Alexander Collie, a naval surgeon who became Government Resident at King George’s Sound in March 1831, after the garrison was withdrawn and Barker departed. Dr Collie remained at the Sound until late 1832. In 1834, The Perth Gazette and Western Australian Journal published a long article by him, Anecdotes and Remarks-Relative to the Aborigines of King George’s Sound.

98	Nind, Barker and Collie each befriended Mokare, a young man whose family held special rights over the land upon which the garrison, and later the settlement, was constructed. Mokare died of a fever during Collie’s time at the Sound. Some years later, whilst en route back to England, Collie died at the infant town of Albany. In compliance with his wish, he was buried alongside Mokare.
99	The articles by Nind and Collie were republished in 1979 by Dr Neville Green in Nyungar – The People; Aboriginal customs in the southwest of Australia (‘Nyungar – The People’). Barker’s journal was republished, by Dr John Mulwaney and Dr Green, as Commandant of Solitude – the Journals of Captain Collet Barker 1828-1831.

(e) The early Perth district writers

100	The evidence also includes material from three people who resided in Perth in the first years of that settlement:

(i) Robert Menli Lyon, who arrived in Perth in the year of settlement (1829) and remained until 1834. In 1832, Lyon spent several weeks on Carnac Island with Yagan and two other Perth Aborigines. In the following year, he published a paper, A Glance at the Manners and Language of the Aboriginal Inhabitants of Western Australia; with a Short Vocabulary. This was republished by Dr Green in Nyungar – The People.
(ii) Francis Armstrong, who also arrived in Perth in 1829. He was then only 16 years of age. In 1834, Armstrong was put in charge of the Aboriginal Institution. He held that position for four years and, subsequently, other official positions relating to Aborigines. Armstrong became fluent in at least five south-west Aboriginal dialects. In 1836 an article was published in the Perth Gazette and Western Australian Journal, Manners and Habits of the Aborigines of Western Australia – From Information collected by Mr F Armstrong (republished in Nyungar – The People). Armstrong conducted a census of Aborigines in 1837.
(iii) George Fletcher Moore, an Irish lawyer who arrived in Perth in 1830 and took up land in the Upper Swan area. He wrote A Descriptive Vocabulary of the Language in Common Use Amongst the Aborigines of Western Australia (first published in 1842 and republished in Nyungar – The People) and Diary of Ten Years Eventful Life of an Early Settler in Western Australia, first published in 1884 and republished in 1978 by University of Western Australia Press.

(f) Later 19^th century writers

101	There is mention in the evidence of three writers who arrived in Western Australia within a few years after settlement. They are:

(i) Sir George Grey, an ex-army officer who made some exploratory expeditions in the Perth region, after an earlier expedition to the north-west of the Colony. His expedition journals, titled Journals of Two Expeditions of Discovery in North-West and Western Australia, were published in 1841;
(ii) Charles Symmons, who was appointed Protector of Aborigines in 1840 and conducted a census that year;
(iii) Rosendo Salvado, who founded a Benedictine mission at New Norcia in 1846 and managed it until his death in 1900. During a stay in Italy from 1850 to 1853, Bishop Salvado wrote memoirs which included his observations of the customs of Aborigines in the New Norcia district. At that time, he also prepared, from memory, two extensive word lists of Aboriginal language.

102	The writings of Grey and Symmons are not in evidence. However, an extract from Salvado’s memoirs (edited and translated by E J Stormon and published in 1977 as The Salvado Memoirs) is in evidence.
103	Ethel Hassell married a farmer residing at Jerramungup, north-east of Albany, in 1878 and lived there until 1886. During her residence at Jerramungup, Hassell took an interest in the life and customs of the local Aborigines and wrote notes about what she learnt and saw. These notes were published in 1975 by C W Hassell under the title My Dusky Friends.

(g) The early 20^th century writers

104

The evidence identifies two persons who wrote about the south-west Aborigines in the early 20th century – the latest point of time at which it was possible for any writer to have contact with a person who was alive in 1829, or born shortly thereafter. One of those writers was Professor A R Radcliffe-Brown, Professor of Anthropology at Sydney University. His work The social organisation of Australian tribes was published in 1930-1931. This work is widely respected by modern anthropologists. However, it is not in evidence. I gather it dealt sparsely with the south-west and casts little light on the issues that fall for determination in this case.

105

The other early 20th century writer was Daisy Bates. In 1904 Bates was appointed by the Western Australian government to research the Aboriginal tribes of the State. She appears to have spent most of the following decade on this task. Bates was not a trained anthropologist and her writings have been criticised, both for their lack of organisation and for Bates’ pronounced Eurocentric judgments. However, even her critics acknowledge her great industry and excellent rapport with Aborigines. She is widely regarded as having been a good observer and patient listener. Dr Brunton said Bates engaged in ‘participant observation’. He explained this term as a person ‘sharing the lives as much as possible [of] the group of people that he or she is ... studying, asking questions in the course of ... observation of everyday life, as well as pre-determined questions of interest’. Bates left many manuscripts, the most important of which (for present purposes) was edited by Isobel White for publication, in 1985, as The Native Tribes of Western Australia.

(h) Some cautionary notes

106	In considering the work of the above writers, all of whom came into contact with Aborigines who were alive at, or about, the time of settlement, I believe it is important to bear in mind a point made by Dr Host:

‘The idea that historical knowledge is prefigured by certain assumptions is not especially radical. All understanding begins with certain assumptions or beliefs. They are the hooks on which we hang our interpretations of the world. They enable meaningful communication to the extent that they are shared, but one who does not share them is unlikely to make much sense of what is said.’

The point, of course, is that, in considering non-Aboriginal accounts of Aboriginal society, it is always necessary to make allowance for the author’s (and one’s own) assumptions and prejudices, including any tendency to view Aboriginal society through a Eurocentric lens.

107

Further, as counsel for the Applicants pointed out in their final submissions, it is necessary to be cautious about accepting the accounts of lay writers – that is, anthropologically untrained writers - of what they had been told by Aboriginal informants. Particularly in the first years of settlement, when Aboriginal people spoke little English, language problems must have imposed significant limitations upon accurate communication of complex information and ideas.

108

Moreover, both Dr Palmer and Dr Brunton commented about the circumstances in which information was provided by Aborigines to European observers. At para 1.20 of his report, Dr Palmer said:

‘The early writers were, without exception, educated men who filled positions of authority in the new settler society. Barker was the commandant of the King George Sound garrison, Moore represented the legal authority of the colony and admitted that he was recognised as "one having authority" ... Collie was a surgeon, Hassell was the station owner’s wife. This meant that, to a greater or lesser extent, there was always an asymmetrical relationship between the original inhabitants and the new settlers where power over goods, services, resources and firearms was almost always in the settler’s favour. Even when the explorer Grey was in extremis and dependent on his Noongar guide Kaiber for his life, he was able to exert his authority over him by threatening him with his gun ... In my opinion it may well have been an appreciation of the one-sidedness of the relations between the settlers and the Aboriginal people that led the latter to exercise caution over the release of information, which some of the new settlers sought. There is some evidence that not all the data collected was sound. Armstrong is particularly damning of those with whom he worked, accusing them of making up information for the price of a meal or a "few pence" and then laughing at the settlers for their gullibility ... Hassell was similarly critical of the quality of the information provided to her (and presumably to others). She stated that those with whom she lived might tell only what they thought "was good for you to know" or what they thought you wished to hear ... and that information about the ritual life, being deliberately kept from her, was hard to come by ... Salvado also provides examples of when he was deliberately mislead.’ (footnotes omitted)

109	At p 100 of his report, Dr Brunton said:

‘... while the early writers may have accurately recorded the actual activities they witnessed, their understandings of the significance of these activities, and their connection to other aspects of traditional laws and customs were very limited. A number of the early observers, such as Armstrong, Grey, Salvado and Hammond, noted that Aborigines of the Perth region were most reluctant to provide accurate responses to their questions, either because they did not comprehend what was being asked or because they were being interrogated about restricted matters. Armstrong wrote of overhearing Aborigines laughing at the false information they had given inquirers in exchange for some gift, and Grey said that rather than confess ignorance about a matter, they "will often invent a tradition".’

110

These cautions are important. However, they do not mean the lay writers’ material should be disregarded. Accounts of events which the writers themselves witnessed would seem particularly useful. Also, there is probably force in Dr Brunton’s observation, immediately after the quoted passage, that the ‘observers’ obvious awareness of the dangers of innocently accepting anything they were told makes it more likely that the information they did record had a reasonable empirical basis’. Where there is consensus, amongst two or more of the early writers, about the existence of a particular state of affairs or practice, this is likely to be the most reliable available evidence.

111

Dr Palmer and Dr Brunton seem to share that view. At para 2.21 of his report, Dr Palmer said: ‘There is substantial evidence from the early writers that there existed a discrete cultural society within the South West of Western Australia’. At para 2.1.2 of his report, Dr Brunton said the writings in the first decade of settlement:

‘represent the firmest basis for presenting a description of the situation at the time sovereignty was acquired, although they clearly need to be interpreted in the light of contemporary understandings developed from ethnographic accounts and analyses of Aboriginal culture and society elsewhere in Australia’.

112

In his oral evidence, Dr Brunton commented that ‘the observers provided more information than we have for many other comparable parts of Australia’. Dr Brunton thought the information was sufficient to allow him to conclude ‘that in the South West of Western Australia at sovereignty there was a normative system under which rights to speak for country were held by estate groups, membership of which was reckoned by patrilineal descent’.

(i) Late 20^th century writers

113

During the latter half of the 20th century, many works, touching on early Western Australian Aboriginal history, were published. These works are different in kind to the earlier works. Their writers had no opportunity to converse with people who had personal knowledge of conditions in the early years of the Colony. The late 20th century writers had to content themselves with interpreting other people’s writings and/or whatever oral histories were narrated to them.

114

Although it would be wrong to refuse to consider writings within this category, it seems to me they cannot provide much assistance in determining the factual situation existing in 1829. I bear in mind a comment about secondary materials made by Dr Host at para 22 of his report.

‘... I am aware that, in the field of historical study, secondary sources are the most accessible and that during the past 35 years, issues central to the terms of my brief have been addressed in an extensive secondary literature. The secondary literature has been invaluable but, in my view, by its very nature, it adds layers of interpretation and scholarly opinion to the facts it adduces. I therefore determined to consult relevant and accessible primary sources wherever possible and appropriate, thus to base my opinions on the sources themselves rather than on subsequent interpretations.’

115

As Dr Palmer and Dr Brunton have demonstrated in their evidence, it is possible to find in the late 20th century writings support for almost any proposition. Some of the late 20th century writers were anthropologists of high repute; some were less well-known. However, whatever the general reputation of a particular writer, his or her work has value, for present purposes, only to the extent that the Court can be satisfied that any views expressed are based on facts established by other material before the Court or conceded by all other parties.

(j) Marginal materials

116

I make two further comments on the published material. First, at paras 37 to 57 of his report, Dr Host set out an account of writings, published over more than a century, that evinced changing attitudes amongst the Western Australian white population to Aborigines, including those of the south-west. The account says much about white culture, but little about Aboriginal society at any particular time. I do not think it bears directly upon the issues I have to determine, although it does reinforce Dr Host’s warning about being alert to Eurocentric value judgments in the early writings.

117

Second, under the heading ‘The Survival Thesis’, Dr Host traced the vicissitudes of the south-west Aborigines from the time of white settlement until recent years. This makes fascinating (and depressing) reading. It explains the fragmentation after settlement of the families and communities that had previously existed, and the abandonment of some important elements of traditional laws and customs. However, Dr Host sets out reasons for believing that Noongar society and culture nonetheless survived. To the extent that his material rebuts those writers who argue that 19th century travails totally destroyed the south-west pre-settlement Aboriginal society, it provides support for the Applicants’ case. However, apart from that, this section of the report offers little assistance in respect of the issues falling for consideration in this case.

(iii) Historical summary
(a) The maritime explorers

118

There is no firm evidence before the Court as to the size of the south-west Aboriginal population at the date of settlement. In The Native Tribes of Western Australia (p 54), Bates offered an estimate of ‘40,000 Aborigines living in the Southwest before white settlement took place’. However, Dr Host was sceptical of any estimate. At para 64 of his report, he said:

‘It is a historical fact that the size of the Aboriginal population of the south-west at the moment of settlement was unknown. Subsequent attempts to estimate the population were haphazard and unreliable. Early head counts could only enumerate people sighted and later attempts were compromised by arbitrary decisions about whether or not to include people of "mixed" descent.’

119	Whatever the precise figure, there were significant numbers of Aborigines, at least along the coast. The European maritime explorers noted, as early as the 17th century, the presence of an Aboriginal population on the south-west coast. Their journals refer to some aspects of the Aborigines’ culture: their tools, fish traps, weapons, huts, burial grounds and use of fire.
120	At para 121 of his report, Dr Host summarises the observations of an exploration party led by Willem de Vlamingh:

‘In January 1697... members of an expedition led by Willem de Vlamingh went ashore near present-day Mossman Park. They marched inland to the Swan River where they saw signs of children and old people (hand and foot prints), three huts and wells dug for fresh water. They also saw "a big tree full of notches by which people could ascend till the top", precisely the kind of notches that were made, according to prehistorians, with the kodja axe. Further investigations led to the sighting of more fires, huts and wells. In the vicinity of what is now East Perth, another party found a freshly dug waterhole sweetened with a thyme-like herb, a fresh fire and several more huts furnished with bark bedding, wax and gum, but again no people. The wax and gum suggest tool-making as identified by prehistorians, and the various signs of habitation – huts, wells, tool use, the herbal treatment of well-water and the imprints of children and the elderly – indicate not only the presence of a community (or communities) along the Swan but also socio-cultural organization.’ (Footnotes omitted)

121	Similar observations were made by members of the maritime expeditions commanded by George Vancouver (1790), Bruny D’Entrecasteaux (1792), Nicolas Baudin (1801) and Matthew Flinders (December 1801). A common feature of their reports was the shyness of the Aboriginal people. The Aborigines often withdrew into the bush when the Europeans came ashore. Notwithstanding this, the cumulative effect of the maritime explorers’ reports is to establish that Aborigines were present, in significant numbers, along the whole coast from present day Esperance to, and including, the Swan Valley.
122	There were some contacts between the maritime explorers and Aboriginal people. Dr Host remarked how some of these contacts (especially those of Baudin and Flinders) entered Aboriginal oral tradition, the detail of which corresponds closely with the explorers’ journal accounts.
123	Phillip Parker King explored Oyster Harbour, at King George’s Sound, in 1818. He did not meet any Aborigines but, Dr Host said:

‘Clearly impressed by Aboriginal fish traps, [King] noted that "the mouths of all the creeks and inlets were planted with [fish] weirs’ and that eleven had been counted ‘on the flats and shoals between the two rivers [the King and the Kalgan]’. One was "a hundred yards long, and projected forty yards, in a crescent-shape, towards the sea". King added that they "were formed by stones placed so close to each other as to prevent the escape, as the tide ebbed, of such fish as had passed over at high water".’

124

King returned to King George’s Sound in 1821. On this occasion, he had extensive contact with the Aboriginal population. He admired their tools. He described the use of a spear and spear-thrower to capture a seal at a distance of 30-40 feet and its dissection with a taap knife. Dr Host noted King ‘reported that the Aborigines were not a seagoing people, did not make canoes and ‘were timid when they approached the water’’.

125

Dr Host summarised King’s observations of the Aboriginals’ social organisation in this way:

‘Altogether, King and his crew saw about forty Aborigines of whom ten were boys. He described them as being slight of build with long curly hair. They could not be persuaded to introduce their wives and children and would not take the visitors to their camps. King speculated that the camps were scattered about in different places and at different distances. His reasoning was that small groups of men went off in different directions each evening and returned from the same directions, but at different times, the following day. Because they mixed freely together, he supposed that they belonged to the same "tribe". He also commented that they did not seem to acknowledge "any chief or superior among them".’ (Footnotes omitted)

126	A later visitor to King George’s Sound, Jules D’Urville (1826), described the Aborigines’ kangaroo skin cloaks, under which they carried smouldering banksia cones for warmth and to enable them to fire the land. D’Urville had friendly contact with the Aborigines, with whom he traded meat and biscuits for information. They treated his party to a corroboree.
127	Dr Host made this summary of the observations of D’Urville’s party:

‘They witnessed and recorded the firing that accompanied a kangaroo hunt. They saw that the Aborigines divided themselves into small "tribes", sometimes of twenty or thirty but more commonly of twelve or less. They observed that their Aboriginal friends travelled very long distances, often far from the seaboard. And they noted names and relationships. They observed, for example, that Yalepouol, an exuberant boy of twelve or thirteen, was the son of a doting father named Patet. They also identified an open-faced young man "more lively than any of his comrades". The man’s name was Mokore (Mokare). His father owned the land beneath their feet and Mokare would presently become the consort of a series of British agents.’ (Footnotes omitted)

(b) The King George’s Sound garrison and settlement

128	On Christmas Day 1826, Major Edmund Lockyer arrived at King George’s Sound, from Sydney, to establish a garrison. He commanded 42 men (including 20 convicts). However, Lockyer remained at the Sound for less than four months. Basing himself on Lockyer’s journal, Dr Host commented that ‘he neither tried nor cared to understand the law and custom of the country into which he had intruded’. Apparently, Lockyer made no attempt to befriend the Aborigines, despite their overtures to him. His main interest in the Aboriginal population was its potential as cheap labour. However, Lockyer did describe a payback incident which, Dr Host argued, ‘exemplified a traditional practice and demonstrated that traditional law and custom held sway at the Sound in 1826-1827’.
129	After Lockyer’s departure, two other people had periods of command before Barker’s arrival in December 1829. Neither of them contributed to our knowledge of the Aboriginal people of the area.
130	A notable feature of Barker’s association with King George’s Sound was his friendship with Mokare. In his journal, Barker recorded some of their conversations. Dr Host noted the openness of this record:

‘... his frankness about the parts of Mokare’s conversation that he did not grasp inspires confidence, in my view, that the parts he did understand were represented more or less accurately.’ (original emphasis)

131	Dr Host commented in his report on spirituality:

‘With regard to spiritual matters, Mokare’s reticence may have arisen both from a respect for the secrecy of certain knowledge and an inability to explain religious mysteries. He gave Barker enough information, however, to illustrate a rich and active spiritual universe and one that admitted of mysteries, just like other spiritual systems such as Christianity. He did so conversationally and in what Barker called the recitative mode. Recognized in the West as a means of presenting information learnt by rote or by heart such as that contained in poems and songs, this mode is used in oral cultures to preserve and transmit knowledge. Mokare often talked of spirits (which Barker referred to as ghosts) and their mischievous behaviour. He did not draw a distinction between good and evil spirits, as Christianity does, but he confessed that the spirits were frightening. He also suggested that they went abroad at night and sometimes visited those who had killed them. In most respects, however, they were a mystery that, according to Mokare, Aborigines discussed at length.’ (Original emphasis, footnotes omitted)

132	In his discussion about the relationship between Barker and Mokare, Dr Host stated Mokare ‘imparted knowledge about Aboriginal language, science (ecology, astronomy and geography), spiritual beliefs, travel, ... traditional law, custom and Aboriginal rights and interests in land.’
133	Barker recorded information from Mokare about sexual transgressions. Dr Host summarised this information as follows:

‘According to Mokare, a serious transgression was one that offended the entire community rather than just an individual. The only consistent offence he consigned to this category was that of "running off" or cohabiting with a close relative such as one’s sister, the sister of one’s father or mother, or the daughter of one’s brother or sister. In such cases, the penalty was death by spearing if the offenders were caught. In other instances of illicit sex, notably extra-marital relations, the offender had only the husband to fear and could avoid punishment by avoiding the husband until his anger had cooled. According to custom, the offending wife would not be forgiven but would be punished with death. Such punishment, however, was evidently more in the nature of a threat than a reality for the transgression rate of women seems to have been high. A possible explanation is that older men had several wives, some of whom were promised as infants. Younger men remained unmarried, often into their late twenties, having to wait for their own promised wives to reach maturity ... It is not surprising that such women entered into liaisons with young men whom they found attractive. Nor is it surprising that they did so with impunity if aging husbands lacked the physical capacity to obtain the redress to which customary law entitled them.’ (Footnotes omitted)

134

In his journal, Barker noted instances of spearing, as a form of redress for misbehaviour. This was a method of punishment sanctioned by customary law. Apparently, there were even customary rules about battles. Barker noted that fighting ceased ‘once a man on each side [was] dead’. It seems that sometimes a truce was struck. Barker reported information from Mokare about such an event ‘at a very great distance’ from King George’s Sound. The ‘great body’ were retiring to their own territory but were ‘to return at some future time, not in general hostility, but to cause Tulicatwale & Coolbun to pass through the ordeal of the spear’. These two would stand the ordeal from daylight until noon of one day, when they would give peace offerings of spears, skins, etc, & the two parties would then shake hands & be perfect friends’. Dr Host said:

‘The most persistent impression one gets of traditional Aboriginal lifeways as they were reported to Barker by Mokare is that they were highly flexible. The abject conformity to rigid social structures and territorial limits suggested by many commentators seems to arise more from efforts to mould social and cultural life to theoretical models than from searching out and examining empirical observations of lived reality. When Mokare discussed the precepts of traditional law and custom explicitly, he indicated that they were well defined and clearly understood. To this extent he suggested a certain rigidity. Yet his account of everyday life conveyed the distinct impression that the same precepts were more accommodating in practice than one would ascertain from simple definition and description. In other words, saying what they were did not necessarily explain how they worked. But if one joins the dots, so to speak, one can get a glimpse of their operation with reference, for example, to the status of women.’

135	Barker noted the custom of female infant betrothal and of a wife being remarried, upon the death of her husband, to one of his brothers. He also mentioned the right of the woman to continue to live on her own family’s estate after marriage, citing the case of Mokare’s sister, Mullet. Dr Host said:

‘Presumably Mullet remained because she had a right in law to do so, of which Barker was unaware, or because traditional law and custom were flexible enough to deal with exceptions. Indeed, by Mokare’s account, traditional law and custom were highly flexible and honoured, at least when the issue at hand was not deemed too serious, as much in the breach as the observance.’

136	In his journal, Barker referred to Mokare’s brother, Nakina, as ‘the head of the family ... whose ground we occupy’. Dr Host summarised Barker’s account of land-holding rules in this way:

‘[T]raditional law and custom were flexible on the issue of land usage. The family was the landholding group, the head of the family was recognized as the titular custodian and other family members had their plots, as it were, within the ancestral estate. The landholding system was complicated, however, by various connections and associations formed through kinship networks as well as knowledge of, familiarity with and access to extra-territorial sites. Although I have found no evidence of women having formal rights and interests in land, they could, as I have suggested, enjoy the right or privilege of occupancy. Hence Mokare’s married sister, Mullet, continued to live on the family estate at Yaramal, near the garrison farm. She shared her accommodations with a co-wife while a third wife travelled with her husband Nulloch, a King River man.’ (Original emphasis; footnotes omitted)

137	Dr Host said:

‘Europeans did not map the ancestral estates but they left quite a clear picture of their locations and ranges. A speculative map, based on the writings of Barker, Nind and especially Collie, has since been drawn by W.C. Ferguson. Collie noted that Mokare’s estate surrounded Princess Royal Harbour and extended eastward to Bald Head. Using landmarks identified by Mokare, Ferguson traced a semi-ellipse that passed from Bald Head, through Mounts Melville and Clarence to the harbour’s north head, almost directly opposite the tip of the Vancouver Peninsula. The boundary he described was between five and ten kms from the coast at any given point.

...

There is no dispute among writers on the period that the custodian’s pre-eminent right (and perhaps responsibility) was that of burning the land. If he did not conduct the burning personally, he should, according to custom, have overseen the process or have deputized a family member to do so. By Barker’s account, burning could occur at any time between January and April. Apart from the symbolic significance of the custodian’s control over burning, there was also an economic rationale: burning yielded an abundance of food. Custodians, or occupying families, might also have assumed other rights. Mokare, for example, was affronted by the plundering of towans (parrots) and their nests on his family’s land. Yet there was a delicate balance between occupancy and usage rights because seasonal change demanded a degree of reciprocity.’

138

After giving an example of flexibility concerning burning rights, Dr Host referred to the ‘delicate balance between custodial and usage rights’. He cited Mokare’s advice to Barker that, during a forthcoming journey by Mokare to Palongerup (some eight or nine days away), Wills people would take possession of Mokare’s land, exercising rights arising out of their marital connections with Mokare’s people, the Mineng. Also he cited a case where Mokare and Nakina accepted an intrusion onto their land by other Wills people who wished to sprinkle ochre over someone’s grave. Dr Host commented:

‘Despite Mokare’s misgivings, he and Nakina were resigned to the ceremony. Their resignation, and the formal advice to them that the visit would occur, indicate several things about traditional law and custom. First, the importance of ceremony and ritual was such that they overrode tensions and could bring about the suspension of conflict. Second, significant sites were not necessarily located within ancestral lands. Third, under traditional law, usage conventions could take precedence over custodial rights, for although Mokare and Nakina were averse to the visit they acquiesced. Presumably, the prospective visitors anticipated their acquiescence for they did not ask permission but announced their intention. One gets the impression, therefore, that traditional law was complex; that its protocols were honoured even when there was no immediate and obvious benefit; and that it rendered territorial boundaries more permeable than has commonly been supposed.’

139	Dr Host made the point that the King George’s Sound garrison occupied only a small area of land; it did not threaten to dispossess the local Aboriginal land-owners. That was not true of the Swan River settlement, which was conceived as a capitalist venture dependent upon farming and trading. It was also not true of King George’s Sound after control of that area passed in 1831 from the Governor of New South Wales to the Lieutenant Governor of the new Colony of Western Australia. Land grants were generously made and white settlers rushed to take up their granted land.
140	Nind’s article contains a wealth of information about Aboriginal practices in the King George’s Sound area between December 1826 and October 1829; some of it derived from Mokare, some apparently from other informants and some from his own observations.
141	Nind used the word ‘tribe’ to describe small groups of natives. At first, he said, the garrison members thought each tribe had a chief and that Nakina was one of them. However, after spending more time with Nakina and Mokare, Nind became satisfied that ‘neither of them possessed any authority over their countrymen’; implicitly, there were no chiefs.
142	In relation to ‘tribes’, Nind said:

'With respect to the divisions and subdivisions of tribes, there exists so much intricacy, that it will be long before it can be understood. The classes Erniung and Tem are universal near the Sound; but the distinctions are general, not tribual. Another division, almost as general, is into Moncalon and Torndirrup; yet there are a few who are neither. These can scarcely be distinguished as tribes, and are very much intermingled. The Moncalon, however, is more prevalent to the eastward of our establishment, and the Torndirrup to the westward. They inter-marry, and have each again their subdivisional distinctions, some of which are peculiar, and some general; of these are the Opperheip, Cambien, Mahnur, &c.

What I, however, consider more correctly as tribes, are those which have a general name and a general district, although they may consist of Torndirrup or Moncalon, separate or commingled. These are, I believe, in some measure named by the kind of game or food found most abundant in the district. The inhabitants of the Sound and its immediate vicinity are called Meananger, probably derived from mearn, the red root above mentioned ... and anger, to eat. It is in this district that the mearn is the most abundantly found; but distant tribes will not eat the mearn, and complain much of the brushy nature of the country - that it scratches their legs.

143	Nind went on to mention other groups, Murram, Yobberore, Will, Warrangle and Corine; all of their names being derived from foods common in their districts. He went on:

‘Although every individual would immediately announce to us his tribual name and country, yet we have not been enabled to trace any regular order of descent. The son follows his mother as Erniung or Tem, and his father as Torndirrup or Moncalon. Beyond this we have not been able to penetrate, for half brothers are not unfrequently different. This would probably be caused by cross marriages. From the same cause also their divisions of relationship are very numerous ...

In their marriage, they have no restriction as to tribe; but it is considered best to procure a wife from the greatest distance possible. The sons will have a right to hunt in the country from whence the mother is brought.

They are very jealous as to encroachments on their property, and the land is divided into districts, which is the property of families or individuals. At some particular seasons of the year, however, the young men visit their neighbours in parties, and sometimes travel forty or fifty miles for that purpose. Their stay, which is generally short, is a period of rejoicing and feasting.

The visiting, of course, only takes place between friendly parties, yet it is attended with a ceremony denoting peace; and they generally approach their friends a little previous, or subsequent to noonday.’

144	Nind described the Aboriginal huts he saw at and near King George’s Sound. He went on:

‘An encampment rarely consists of more than seven or eight huts; for, except during the fishing and burning seasons, at which times large parties assemble together, their numbers are generally small, and two or three huts suffice. The number of individuals, however, seldom exceed fifty. The huts are so arranged as not to overlook each other. The single men have one to themselves - the children sleep with the women in a large hut near the husbands. These encampments generally consist of near relatives, and deserve the name of families rather than of tribes.

Those families who have locations on the sea coast quit it during the winter for the interior; and the natives of the interior, in like manner, pay visits to the coast during the fishing season. Excepting at these times, those natives who live together have the exclusive right of fishing or hunting upon the neighbouring grounds, which are, in fact, divided into individual properties; the quantity of land owned by each individual being very considerable. Yet it is not so exclusively his, but others of his family have certain rights over it; so that it may be considered as partly belonging to the tribe. Thus all of them have a right to break down grass trees, kill bandicoots, lizards, and other animals, and dig up roots; but the presence of the owner of the ground is considered necessary when they fire the country for game. As the country does not abound in food, they are seldom stationary, removing, according to the time of the year, to those parts which produce the articles of provision that may be in season. During the winter and early spring they are very much scattered, but as summer advances they assemble in greater numbers.

It is at this season that they procure the greatest abundance of game. It is done by setting fire to the underwood and grass, which, being dry, is rapidly burnt.’

145

In his report, Dr Host discussed the evidence, in the writings of Barker and Nind, about the extent of travel by King George’s Sound Aborigines at the time of settlement. He mentioned a footnote, in the republication of Barker’s journal by Mulvaney and Green, suggesting that one local Aborigine, Maragnan, evidently knew the coast to around Cape d’Entrecasteaux, some 200km to the west of Albany. The footnote added: ‘To judge from Barker’s journal, the range of Mineng contacts did not extend as far east of Albany; basically only to the Mt Manypeaks area, about 50km. To the north the limit was around the Stirling Range, c. 100km, and possibly less to the northwest’. Mulvaney and Green cited a work by W C Ferguson. However, Dr Host thought they had overlooked references, in Barker’s journal itself, to travel over much longer distances. He gave examples, although they seem inconclusive because of doubts about names. I think all that can confidently be said is that the King George’s Sound Aborigines frequently travelled to other areas (possibly some of them far distant) for purposes of ceremony, hunting, trade and wife-getting.

146

The article by Collie details journeys that he made with local Aborigines, especially Mokare, and their way of life. It recounts the death and burial of Mokare, but contains little information that is material to the present case. However, reference should be made to a journey undertaken by Collie, after Mokare’s death, in company with an Aborigine named Manyat. This was a ‘march of ten days, and to the distance of 65 miles from King George’s Sound’. Collie described Manyat, on his return, as having ‘revelled in the idea, that he had penetrated farther from King George’s Sound than Nakina, or any of his acquaintance’.

(c) The early post-settlement years

147	In his report, Dr Host quoted substantial extracts from the diaries of Captain James Stirling, the founder and first Lieutenant Governor of the new Colony, and Captain Charles Fremantle, who was sent ahead of the main party to select the Swan River settlement site and prepare accommodation for the troops who would guard the new settlers. The Fremantle extracts include a description of an Aboriginal man who ‘looked like a chief as he was marked down his stomach with three stripes of white and had in his head two bunches of feathers dyed red’. Dr Host commented this ornamentation ‘suggests a continuity of custom from the Sound to the Swan River’.
148	The establishment of a European settlement at Perth, in 1829, did not immediately terminate Aboriginal use of the area. In a letter written in 1832, Stirling estimated the Swan River Aboriginal population at about 11,000. Dr Host mentioned a corroboree, in the following year, on land that is now part of St Georges Terrace. In 1834, this land was the site of a battle between the Mooro (Perth) Aborigines and a group from present day York. Dr Host commented: ‘The very fact that such events occurred seems to indicate that the local Aborigines who hosted them were sufficiently robust, both culturally and numerically, to do so’.
149	Dr Host noted a despatch by Stirling to the Colonial Office in 1837 in which he said that, if the Aborigines were to combine against the settlers, ‘it would be useless to attempt to maintain our conquest with our present numbers’. From this passage, Dr Host inferred that Stirling ‘had some sense that there were more Aborigines than settlers’, bearing in mind that the settlers had firearms. Arrival and departure records suggest there were only about 2,000 settlers in the Colony at that time, while Stirling, in his despatch, gave a figure of 22,000 Aborigines. Perhaps this estimate should be treated with scepticism; at the time, Stirling was seeking to persuade the British authorities to send more soldiers to the Colony. Nonetheless, Dr Host’s inference about outnumbering seems correct.
150	Dr Host noted that, during the early years, the number of recorded Aboriginal deaths from violence and disease was low, about seven deaths per year. He went on:

‘It would be unwise to suggest that recorded deaths were the only deaths, but it is equally unwise to assume, on the basis of seven recorded deaths a year, that the Aboriginal population declined to the point of extinction ... Settlement may well have impacted on indigenous culture in unexpected ways. However, Aboriginal peoples had occupied the south-west for millennia before Europeans arrived. During those millennia, some of the changes they experienced, for example, the loss of land that resulted from the rising of the seas, were probably no less catastrophic than the advent of Europeans. In all of that time, they did not simply maintain their lifeways; they also co-existed, an achievement that required intelligent and highly-developed diplomacy. The material from King George Sound illustrates the ongoing capacity of Aborigines to resolve disputes and there seems no good reason to assume that the capacity was so thoroughly undermined by a few decades of European occupation that they began to kill each [sic: other] off indiscriminately.’ (Footnotes omitted)

151

Whatever their numbers at any particular time, it is Dr Host’s opinion that the Aboriginal people of all the south-west have been identified as ‘Noongar’ (or ‘Noongal’, ‘Nyungar’, ‘Nyungal’, ‘Yunger’) ‘since the 1840’s and perhaps the 1830’s’. Dr Host cites Nind’s 1831 vocabulary in support of the earlier date. That vocabulary gives ‘Yungur’ as the meaning of ‘A man’. Moore’s 1842 vocabulary lists the word ‘Yung-ar’, with the meaning ‘People. The name by which they designate themselves’. Moore went on: ‘There may be about 3,000 aborigines frequenting the located parts of the colony. See the Statistical Report for 1840’. This comment seems to imply that Aborigines in all ‘located parts’, including places as far-apart as York, Perth and Albany, were ‘Yung-ar’.

152

Lyon’s article evinced admiration for the ‘Aboriginal Inhabitants of this Country’ whom he described as ‘a harmless, liberal, kind hearted race; remarkably simple in all their manners’. He described their way of life, saying:

‘Every bush as well as every sheet of water supplies their commissariat. Their rivers abound with fish, and their forests with game. Their time is therefore entirely spent in moving from place to place, as hunting or fishing may require; or in paying and receiving visits from the neighbouring tribes. The kangaroo, the opposum, the swan, the Pelican, the duck, the emu, the wild-turkey, the cockatoo, the pidgeon, the quail, the frog, the grub, the yamia, the boorn, and the beean booraberang, each furnishes its number of repasts at the proper season. Their rivers too in many places easily forded; and admirably adapted to spear fishing. Hence, there being few islands on the coast, they have not the least inducement to attempt navigation. Even swimming is unknown among them. They have been seen to paddle themselves across deep water with their hands, where the distance from bank to bank was short; but, of the art of swimming, they are entirely ignorant.’

153	Lyon wrote that the Aborigines ‘are formed into distinct tribes, who have their particular districts, and whose chiefs have but a limited authority, excepting in time of war or any emergency’. Later he said:

‘I have already observed, that they are formed into distinct tribes; and that the whole country is divided into districts. But, though they have places to which they are accustomed to resort for encampment, they have no fixed habitation, and generally move about from place to place in large bodies. Private property seems to be utterly unknown among them. The game and the fish are considered the common property of the tribe; and as every dispute between the different tribes is decided by the spear, they are utter strangers to the quirks and quibbles of the law.’ (Original emphasis)

154	Writing in 1833, Lyon estimated there were about 1,000 Aborigines adjoining the Perth settlement. He attributed the small number to the ‘horrid custom of killing one of another tribe, when any of their own happens to die, thus causing a double mortality, together with the practice of polygamy’.
155	Lyon commented about linguistic differences. He said:

‘Almost every tribe has a different dialect. The difference in some cases, is merely provincial; but in others it is so great as to be unintelligible. Still, like the languages of the different nations of Europe it seems to have a common origin.’

156	Lyon then set out three word-lists. The first was ‘a list of words that are precisely the same here and at King George’s Sound’. Five examples were given. The second list was of words where ‘the difference seems to be provincial’, eight examples being given. Then followed another eight examples where ‘the words for the same thing are so different that the parties speaking must be unintelligible to one another’. However, it is interesting to note that this last list gives the Swan River dialect word for ‘a man’ as ‘mamerupt’, as against the King George Sound ‘Nyoonger’, whereas Moore gave the Swan River word as ‘Yung-ar’.
157	Armstrong’s article dealt with a number of aspects of the culture of Swan River Aborigines. In the course of a discussion about their spiritual beliefs, he referred to evil spirits; in particular, ‘a malignant spirit called Meetagong, which prowls around at night and catches hold of them, if they go away by themselves to any distance from the fire where the rest of the party lie’. He also mentioned the ‘waugal’ – ‘an aquatic monster, whose haunt is supposed to be in deep waters’.
158	Armstrong also referred to a ‘tradition’ amongst the Aboriginal people as to their origin, namely:

‘the whole native population of this country was, in distant ages, confined to the mountains - that the different tribes now occupying the plain between the mountains and the sea are the descendants of a very few families, who migrated into the plain at a comparatively late period; but when asked whether any rumour had been handed down to them of the plain having been covered with the sea before that migration, they have laughed at it. They assert, too, that the language of the mountain tribes, which now differs very considerably from that of the tribes of the plain, was at one time their universal tongue, and that their own dialect is derived from the former. It is a remarkable fact, that the mountain dialect is still invariably preferred and used for all purposes of a public nature or general interest, such as their formal public discussions of the subjects of their quarrels between tribe and tribe, and their chanted narratives of legends, battles, and hunting matches. They state, as a fact handed down to them from their ancestors, that Garden Island was formerly united to the main, and that the separation was caused, in some preternatural manner, by the waugal.’

159	Armstrong confirmed other writers’ accounts of redress for injury by spearing, which the offender must suffer without resistance, and the practice of young girls being the subject of arranged marriages.
160	Armstrong said the ‘land appears to be apportioned to different families, and is not held in common by the tribe’. He set out the territories claimed by various people and went on:

‘These co proprietors appear equally interested in their respective districts, and are equally ready to revenge any tresspass, which may be committed, not only unauthorised hunting, but by taking swans’ nests, &c. Land is beyond doubt an inheritable property among them, and they boast of having received it from their fathers’ fathers, &c., to an unknown period back. All the sons appear to succeed equally to their fathers’ lands.’

161	Armstrong also said:

‘There is no supreme authority, either in peace or war, vested either in an individual, as chief or patriarch or in any body of individuals. A family is the largest association that appears to be actuated by common motives and interests.’

162	Armstrong provided information about the interaction between Aborigines in the Perth area and groups further afield. He said that the Perth Aborigines ‘obtain their ordinary spears from many swamps, but the finer kind from Barga – a district in the hills between Guildford and Kelmscott’. He added:

‘But their very best spears, which are extremely scarce, and very highly valued, are presents from their southern friends, and are said to be brought from a district two or three miles south of the Murray. They would not sell one of these spears for a loaf. They are called Boor-do-een, and are thin, heavy and springy’.

163	Armstrong went on:

‘They say that when a tribe is pressed by a common enemy, they retire, if the pursuit be very hot, to the nearest swamp that offers concealment; otherwise to some neighbouring tribe, in which they have relatives, who are bound to defend them, right or wrong. The latter course has been adopted by the Swan tribe, when pursued by the whites; they have always retreated to a northern tribe, about a day’s journey off. Yagan’s tribe used always to fall back upon We-up’s. But they would not, they say, retire upon a tribe in which they have no relatives. They themselves would not afford refuge, or, at least, protection to any stranger fugitives. The Swan tribes are in the habit of communicating with at least ten surrounding tribes, - viz, three to the northward, two to the north-eastward, two to the eastward, besides the Canning, Mangles Bay, and Murray tribes.’

164	Armstrong also commented about ordinary travel. He said:

‘From observation, and from their own accounts as far as their ideas of number and distance can be understood, there is reason to think that, during war, in pursuit or fight, their usual rate of travelling is between thirty and forty miles a day. On hunting excursions, or while peacefully passing from place to place, and having at the same time to provide their food, their lightest [sic] average rate does not probably exceed fifteen miles a-day.

...

A whole tribe does not, as a custom, migrate beyond its own district; but sometimes a whole tribe pays a visit of a few weeks to a neighbouring tribe, but this is always on a previous invitation, which is sometimes sent to its neighbours by a tribe that has had extraordinary good luck in hunting, or has had a whale cast on its coast. There is good reason to believe that few, if any, of the Swan men have been further from the Swan than 80 to 90 miles, unless with settlers. They move about in their own districts according to the seasons and the consequent variety of food. In winter they separate a good deal and live apart by families, and become stationary for a month or six weeks at the place where they have built their huts, provided the food of the season continues plentiful there.’

165	Armstrong mentioned fishing:

‘Even the maritime tribes, on an immense extent of coast intersected by frequent and broad estuaries, have no knowledge of the use of canoes, or any substitute; - their shores swarm with fish, yet they have never devised even the clumsiest resemblance to a fish-hook. One or two weirs, of the simplest possible construction, have indeed been seen; and they have an equally simple substitute for a net, which they use in the shallower pools of their rivers, when the latter, during the dry season, have ceased to run. A party of them form across one end of such a pool, a screen of brushwood, proportioned in height to the depth of the water, which they push before them through the pool to the opposite shore, sweeping before them everything in the shape of fish. The spear is their great instrument in fishing, as well as in the chace. On the coast they use, for that purpose, two spears tied together.’

166	Armstrong commented on the Aborigines’ gregariousness:

‘They are known to be extremely sociable, and very fond of gossiping; and their social amusement, besides mock-spear fights and throwing the kile-ee, is conversation round their fires at night. In the summer time, the tribe for sixty miles round assemble, settle old grievances and raise new ones. At these meetings they entertain each other with the well known dances and chants &c. of the corrobaree; which chants are partly narratives of battles, hunting matches, and excursions to strange and distant tribes; and partly unmeaning jargon, consisting of syllables strung together at random, but in the composition of which there appears to be some rivalry, each tribe exchanging the effusions of its "balladmongers" for those of its neighbours.’

167	Armstrong said he had ‘taken down the names of every individual in most of the Swan tribes’. He said none of the tribes exceeded 40 individuals; men, women and children. He estimated some 700 individuals regularly visited Perth, Fremantle, Guildford and Kelmscott; there was one tribe to about every ten square miles of country.
168	In the course of recounting the local Aborigines’ attitude to the white settlers, Armstrong referred to their unwillingness to ‘drive away or prevent stranger tribes from visiting Perth’; the reason being that ‘it is from those visitors they now receive, in return for permission to visit here, that supply of cloaks, bags &c, which their own district formerly yielded them’.
169	The evidence includes an extract from the Perth Gazette and Western Australian Journal of 7 September 1833 reporting a meeting at which Armstrong acted as interpreter. In the wake of the fatal shooting of Yagan, by two teenage boys seeking to claim the reward put upon his head, two members of Yellowgonga’s tribe, Migo and Munday, asked to meet the Lieutenant Governor to discuss an end to killings. The whole newspaper report is interesting, in terms of black-white relationships in the Perth area. What is presently relevant is the discussion about the penalty for theft. It seems that Migo and Munday named 16 Aborigines, whom they claimed to have been killed by whites, as well as ‘nearly twice as many wounded’. The report went on:

‘After all the names of the dead were given, they intimated that they were still afraid, before long, more would be added to the number, but being again assured that it would not be the case, unless they "quippled", committed theft, they said then no more white men would be speared. They seemed perfectly aware that it was our intention to shoot them if they "quippled"; they argued however, that it was opposed to their laws, - which was banishment from the tribe, or spearing through the leg. The death of Domjum at Fremantle, who was shot in the act of carrying away a bag of flour, they say was not merited, that the punishment was too severe for the offence; and further, that it was wrong to endanger the lives of others for the act of one, - two of his companions having been severely wounded.’

170	In his journal Diary of Ten Years Eventful Life of an Early Settler in Western Australia, Moore made many references to contacts with the local Aborigines. The journal extracts that are in evidence include a comment about land:

‘Each tribe has its distinct ground; and they will, of course, rather adhere to it, dispute its possession, and take their revenge on the intruders, then fall back on other tribes of their own countrymen, and fight their way inch by inch with them.’

171	Moore also made a comment about inheritance:

‘I was witness to a great row among a number of natives at Perth yesterday morning. The occasion was this. It appears that among themselves the ground is parcelled out to individuals, and passes by inheritance. The country formerly of Midgegoroo, then of his son Yagein, belongs now of right to two young lads (brothers), and a son of Yagein. Some trespassers went upon this ground, lighted their fires, and chased the wallabees. This was resented by the young lads, and, as it happened, there was a large meeting of natives at the time, a general row commenced, and no less than fifteen were wounded with spears in different parts of the legs, - to which they seem to confine themselves as if by some law among themselves.’

172	It is worth mentioning Moore’s description of an Aboriginal burial, in 1838, near his land in Upper Swan. Dr Host noted the consistency of this description with Collie’s description (published in 1834) of Mokare’s burial at King George’s Sound in 1832. Dr Host thought the two descriptions demonstrated cultural maintenance over both time and distance.
173	I also mention an article by Moore, Aborigines of Australia – Swan River that was published in Colonial and Commercial Maritime Journal, Vol 5, in 1841. This article contained the following information about the Aborigines’ social life:

‘In all parts of this colony which I have visited, comprising from 100 miles north of Perth, down to King George’s Sound, every thing leads to the conclusion that the inhabitants are all of one race. The language is radically the same, though spoken with a variety of dialects, gradually blending into one another; and it is worthy of observation, that all the known vocabularies of the language of different parts of Australia present so many instances of identical expressions, as to strengthen the belief that they are derived from some common stock. The conformation of their heads and bodies is the same; the cast of countenance is the same, although different shades of hair are perceptible; their habits are the same; their weapons are the same. It is ascertained that at some distance to the north, shields are made use of, which are only known here as rare curiosities, and are still less known as you go to the south. The curved weapon, fashioned something like a coarsely-shaped sickle, called "kily", may have its prototype in the German keile, and is said to be traceable to the elanta of the remotest ancients; whilst that singular instrument by which their spears are propelled, is said to be derived from the amentum of the ancient also.

I do not consider them divided into tribes, according to our sense of the word. Those who frequent or belong to any vicinity naturally congregate together for society, assistance, and mutual protection. These people appear to be more particularly designated with reference to the localities which they frequent; but there are certain general terms sometimes used among them with reference to the residence of people, which seem rather indicative of direction than description of locality – as the Waylo men, which is a term used equally here and at King George’s Sound, for those living immediately to the north; and the Daran men, which is used equally here and at York, for those living immediately to the eastward.

There is not, in my opinion, any one acknowledged head or chief of a tribe; but, of course, the strongest, shrewdest, and most daring, will exercise an influence over the rest.

The tribes are therefore but the result of two or three families frequenting the same neighbourhood; the most influential man is the chief; his authority is like that of a father over his family, or an elder brother over the younger, and only extending so far as he may be respected or dreaded.

Protection from the intrusion of strangers, and assistance in defence, in avenging quarrels, in resenting injuries, or in revenging deaths, is expected from each individual.

To effect some common object, tribes do often join for offence or defence; and they seem to me to have judicial meetings, either for the adjustment of differences, the ratification of friendship, the exchange of commodities or products of one place for those of another.

The district which the father occupied or ranged over, is claimed by the sons; they assume a proprietary right to the animal and vegetable products of it, and resent any unauthorized encroachment upon a use of this property. One of the most serious skirmishes which I have seen among the natives was occasioned by the resentment of the sons of Midjigoroo, for the firing the country, and destroying the game on the district opposite to Perth, on the other side of the river. Each party was supported by their respective friends, and the quarrel became general. The right appears to be vested in individuals, and there is not a spot of ground which is not claimed by some person as his district.’

174	Salvado’s memoirs contain a chapter headed ‘Laws, Seasons, Arts’. It includes the following:

‘ 1. Many Europeans have thought fit to apply the word 'tribe' to the groups of six or so natives whom one meets in the Australian bush. I do not think that this is an accurate term, since, as far as my knowledge goes, each family is independent of others, and is governed by its head, the father; I have never found an instance where the head of the family assumed the right of giving orders to other heads, or to the members of their families. If a person is insulted, he does not have recourse to anybody for justice, but seeks revenge on his own behalf; if he is weaker than his enemy, he asks help from his relatives and friends. Thus the natives, rather than governing by tribes, seem to govern in the patriarchal fashion, with each family - not usually more than six to nine persons - forming a small society, dependent on its own head alone.
2. On the other hand, they possess general laws, maintained by tradition and handed down from father to son; and any head of a family has the right to punish breaches of these laws severely, even though the culprit be a stranger. For instance, if a young man who is less than thirty takes a woman about with him, and gives out that she is his wife, the first old man who hears him say this can kill him without pity, in virtue of a law that is common to all the natives, that no-one may contract a marriage, under pain of death, before he has completed his thirtieth year. The reader may well think that it would be easy for a native to conceal his exact age, or indeed not know it; but it must be realized that, in spite of the absence of registers and witnesses, they can discern with marvellous accuracy, from the strength of the body, when marriage is permissible according to their traditions. I shall speak about their other laws when an appropriate occasion offers.
3. Every individual has his own territory for hunting, gathering gum and picking up yams, and the rights he has here are respected as sacred. I have often heard them say in dispute - even to their friends: 'Nichia n-agna cala, nunda cala Canturbi; iei nunda uoto' (This is my district, yours is Canturbi [the name of a place near New Norcia]; get out of here straight away!’). Consequently, each family regards one particular district as belonging exclusively to itself, though the use of it is freely shared by nearby friendly families. But if an enemy or a stranger is caught there, he is put to death by the owner.
...
The natives of Perth and those of King George Sound, although they are about 300 miles apart, speak practically the same language (the former adding a syllable or vowel more than the latter at the end of each word). A great number of the words used by the natives of Adelaide agree with those used in the Perth district, and such correspondences obtain commonly elsewhere.’

175	In a section of his report entitled ‘Aboriginal Adaptation and Cultural Maintenance 1841-1900’, Dr Host described the relationship, during those years, between the south-west Aborigines, on the one hand, and, on the other, the pastoralists, for whom many of them worked, and the mission stations that sought to civilise and convert them. A major theme of this section is the resilience of Aboriginal society; despite increasing contact with the white population, many customary activities were preserved. Dr Host cited Hassell’s claim that, even Aborigines who had developed long-term relationships with employers would absent themselves to undertake traditional activities such as ‘hunting, gathering, feuding, attending ceremonies and telling their traditions’.
176	In his report, Dr Host took pains to demonstrate that, contrary to assertions by some, many traditional Aboriginal practices persisted for many years after settlement. In particular, he drew on the writings of Hassell; letters by a settler, Eliza Brown; and ‘An Australian Parsonage; or, Settler and Savage in Western Australia’, a book written by Janet Millett and published in 1872. This book described the interaction between the author and her clergyman husband, on the one hand, and Aboriginal people in York in the 1860s. Dr Host commented that her book ‘demonstrated that Noongar people at the end of the 1860s were alive and well, adapting to the European presence, adopting aspects of European culture but maintaining many aspects of their own’.
177	At paras 366-367 of his report, Dr Host said:

‘The evidence adduced from York and the Blackwood-Warren area indicates clearly that Noongars in frequent contact with Europeans and adapting to their presence were also maintaining many aspects of traditional law and custom. They used traditional travel routes and tracking skills in their work for settlers as mail carriers and police aides. They continued to burn the land, so much so that the practice became a flogging offence in 1848. Ceremonial life continued and reports of corroborees persisted into the 1890s. Noongar men remained proficient with the spear and imparted the skill to Eliza Brown's son Kenneth. Brown and Millett both commented on the maintenance of traditional dress and body decoration. By supplying Khourabene with clothes and finding that he always returned without them, Millett discovered the continuation of the traditional obligation to share. Wollaston noted the failure of missionaries to civilize or westernise Noongar people (with a few exceptions) and would eventually be faced with his own failure to do so.

Early betrothal and the moiety system were objects of deep concern to Millett in the 1860s when traditional law/custom relating to the practices were sometimes broken as they were at King George Sound in the 1820s. Khourabene was threatened with spearing at York in the 1860s for hunting on land at York in which he had no traditional rights or interests, just as he would have been at King George Sound in the 1820s or Perth in the 1830s and 1840s. Most significantly, Noongar families remained together and on country. When they were employed by Europeans, they remained in the lands that held their significant and sacred sites. They worked as family units on a seasonal basis then returned to the material culture of the bush when the work was finished. If jobs were small, they were done by nuclear families. If they were large, the kinship networks supplied the labour. Hence, the kinship system that linked families and the principle of sharing or mutual obligation that was woven through it, the unseen bases of traditional law and custom, remained.’ (Original emphasis)

These conclusions were not challenged by any respondent.

178	Dr Host continued his survey through the remainder of the 19th century. He cited accounts of hunting parties, corroborees and reprisal spearings. He thought that, throughout this period, ‘Noongar people remained robust’. However, he said:

‘They [Noongar people] also came increasingly under official scrutiny, doubtless because they were defying predictions of their demise. Assertions of their imminent extinction persisted but they became more equivocal. The physical presence of Noongar people could scarcely be denied but the spurious categories of caste and blood, which acquired an equally spurious legitimacy through official usage, became a means of asserting their racial and moral decline. At the same time, the categories artificially deflated Aboriginal numbers.’ (Original emphasis)

179	Dr Host went on to refer to official documents, including census documents that sought to distinguish between full-blood and mixed-blood Aborigines. He commented:

‘Early enumerations were not only complicated by the impossibility of ascertaining which Noongars did and did not have European ancestry, but they were also unreliable because Noongars remained comparatively mobile and could easily have evaded census enumerators. Estimates, then, were surely deflated. Yet as Fraser emphasized in 1901, "in almost every case, half-caste aboriginals are brought up by and subsequently continue to live with those of full-blood". It seems clear, therefore, that the artificial categories of caste and blood were irrelevant to Aboriginal people or, at the very least, were not relevant in the way that they were to Europeans. When one disregards the spurious categories, one can see that even deflated estimates showed a steady increase in the south-western Aboriginal population, an increase that mocked both the notion of extinction and Draconian legislation that seemed calculated to bring it about.’ (Footnotes omitted; original emphasis)

180	Dr Host summarised in this way the position at the end of the 19th century:

‘By 1891, the colonial population had not topped 50,000 and Aborigines had the time and space to adjust to the European presence. Much if not most of the south-west remained untouched by formal colonial expansion and control of Aboriginal people was limited to policing those in settled areas. The kinship system and the principle of mutual obligation from which traditional law and custom arose, persisted, along with the Aboriginal sense of place and various aspects of ceremonial life and material culture. During the next ten years, the European population jumped to 184,000 and the groundwork was laid for unprecedented displacement. It would take more than 20 years and a succession of Aborigines Acts, however, before the full impact of that displacement was felt. Moreover, the full impact remains incalculable because ... no reliable means had been devised for estimating Aboriginal numbers.’ (Footnotes omitted)

181	It appears that population growth in Perth was relatively slow: in 1884, some 6,500 people, rising only to 35,767 in 1911.
182	Dr Host commented: ‘Noongars had access to the food and water resources of metropolitan lakes and swamps until after the Second World War’.

(d) Early 20^th century writers

183

In ‘The Native Tribes of Western Australia’, written about 1910 but perhaps later updated, Bates identified informants who had been alive in the early years of settlement. She apparently spent much time with some of them. Bates used the term ‘Bibbulmun’, whose derivation she was unable to ascertain, to describe the people who have been called ‘Noongar’ by others. In a section of her work headed ‘The Bibbulman Nation’, Bates wrote:

‘The Bibbulmun Nation occupied the line of coast between Jurien Bay ... and a point somewhere east of Esperance Bay, towards Point Malcolm. Its inland boundary (approximate) stretched diagonally from about Watheroo ... to about Mt Ragged ... Its widest area was between Augusta (Cape Leeuwin district) north-east to about Kalgarin (Carlgarin on [official] maps) ...; its narrowest area was in the Esperance district. All along its landward boundary were the circumcised tribes. The many rivers, hills, estuaries, timbered areas and rich loam flats within its boundaries, in the abundance and variety of the animal and vegetable foods which they afforded, made the Bibbulmun people the most fortunate of all the Western tribes, for there was no time of the year which had not its seasonal product for the sustenance of the inhabitants.

Although the Bibbulmun Nation throughout its whole area had but one fundamental language, and possessed similar customs, laws, etc., there were two forms of descent within its boundaries, the tribes dwelling on a narrow line of coast from about Augusta to Jurien Bay following the line of maternal descent, while the rest of the tribes had paternal descent.

All coastal Bibbulmun were Waddarn-di-sea people, and called themselves, and were called by their inland neighbours, Waddarn-di Bibbulmun. The inland tribes were distinguished by the character of the country they occupied. They were either Bilgur (river people, beel or bil-river), Darbalung (estuary people) or Buyun-gur (hill people - buya-rock, stone, hill), but all were Bibbulmun. Tribes were also named from various local terms for points of the compass, as Wil Bibbulmun (wil-north), a term used by the Albany people in speaking of the tribes north of them; Kurin Bibbulmun (kurin-east); the Katanning district people called themselves and were called by their neighbours by this term. Yabbaru Bibbulmun-Perth and Gingin district tribes were so called from their dialectic term for north-yabbaru. Bunbury Bibbulmun were called Kunniung Bibbulmun from their local term for west. Minung Bibbulmun (minung-south) was the term applied to the tribes east of the Darling Ranges from about lat. 31, long. 117 to the southern coast about Albany. Minung may also have been derived from min, men or mirn, an edible gum or red root, but its more general meaning is south, aid it bears this meaning amongst tribes beyond the boundaries of the Bibbulmun people ...

Between all these people there was constant intercourse from time immemorial. They assembled at any point between Augusta (Cape Leeuwin) and Cockleshell Gully (Jurien Bay district) for various purposes, either when a certain local food was ripe, or when the spawning season arrived or the swan nesting season, or warrain (edible root) season, etc.: there was in fact a main irregular highway north and south, with branches eastward here and there over the hills wherever relationships extended.’

184	The occupation area of the ‘Bibbulmun Nation’, as described by Bates, broadly corresponds with the territory claimed by the two Single Noongar native title claims. The most significant difference is that Bates put the eastern extremity of the occupation area further east than that of the claim area.
185	After detailing the ‘local names applied to groups of Bibbulmun living in certain areas’, Bates said:

‘Each tribe, or aggregate of local groups, had a definite area over which every individual member had hunting and food rights. Within this area were certain waters, hills, valleys, rivers, estuaries, which were the property of the groups inhabiting that particular part of the country.

Owing to the early settlement of the Southwest, it was extremely difficult to obtain the definite boundaries of any special local group or groups, as in nearly all cases the once numerous inhabitants had dwindled down to one or two old men, and the old people were often found far away from their own hunting grounds.’

[One criticism that has been made of Bates is that she disregarded mixed-blood Aborigines. Her reference to ‘one or two old men’ is, therefore, probably a reference to the number of surviving full-blood members of the tribe.]

186	After detailing the tribal areas, Bates said:

‘All these people laid claim to certain portions of the Minung Bibbulmun territory, which they stated had been held by their people since Nyitting, (cold, ice age?) or ancestral times. From these runs they could not be dispossessed, and on, or as near these as white settlement rendered possible, they lived and died. Indeed I know of one instance amongst the Minung Bibbulmun of an old woman walking over 200 miles to reach the spot where she had been born, and where she wished to die. She lived about a fortnight after her long journey to her kal (fire, hearth, home).

Every group held relationship of some kind with every other group, for all constituted the Bibbulmun Nation. A Minung Bibbulmun from Albany could travel through the tribes east, west and north of him, as far as the limits of his relationship extended. Nebinyan died at Katanning whither he had gone to be looked after by some Kaiala Bibbulmun and Kurin Bibbulmun with whom his father's people had intermarried.

There was also free intercourse between the Minung (Eastern) Bibbulmun and the Western Bibbulmun, notwithstanding the difference in the form of descent of both people. Whether this was due to the facilities afforded by white settlement, and the greater ease with which long journeys could be accomplished under white protection, cannot now be definitely ascertained. The living members of the various groups state that they could always travel through any area in which a relation existed, the term relation being used in its widest sense. Again, the journeys taken by young boys in preparation for their initiation could be extended as far through Bibbulmun country as the boys' guardians cared to go, and this rule again made for an extension of the highway. These show in which direction the group's wives, husbands, betrothals were sought or obtained. One old man, now dead, of the Dunan wongi section, stated that he took some boys to Doggerdirup (Bald Head, Albany) from their birth place at Wonnerdup, a distance of some hundreds of miles, but that journey was undertaken after white settlement.

Yabburgurt, the last Murray district native, whose father's ground was in the Manjuburdup (Mandurah) district, stated that he could travel to Yunderup (Busselton) and find mururt (blood relations) there; he could go to Kugalerup (Blackwood River district) where some of his nganganjura (mother's people) lived; to Karrganup near the Moore River (Gingin district), where waiabinuk (relations-in-law) lived.

Joobaitch, the last Swan and Canning district native, whose father's springs, pools, etc., were in the present Guildford district, could go south of Bunbury, as his mother's father came from the Burong wongi district. He went eastward to Northam, York, Meckering and north-ward to Dandarraga [Dandaragan] in all of which places he found mururt and waiabirding [relations-in-law].

Woolberr, the last member of the Gingin district section of the Yabbaru Bibbulmun, had a friendly highway towards Jurien Bay on the north, Goomalling and Dowerin on the east, and south towards the Murray, as his mururt and waiabirding were to be found in the local groups of these districts. Woolberr was killed while endeavouring to cross the railway line near Perth.

Monnop, the last Victoria Plains district Bibbulmun, had also an extensive highway opened to him through relationships, etc. His father's country was near the border of the circumcised tribes, and some boys from his father's people's group had been given over to the circumcised tribes for initiation, but only those of his people who were willing to be circumcised went on friendly visits "over the border". The highway of his people ran west and north-west to the coast about Jurien Bay, and south into the Swan district. Monnop died at Guildford in the early part of 1914.

These instances will suffice to show the unity of the Bibbulmun Nation. They were one people, speaking one language, and following the same fundamental laws and customs. Why their forms of descent should be different they themselves could not explain. The Minung Bibbulmun accused the Western Bibbulmun of having inaugurated female descent in order to "legalise", so to speak, wrong marriages, while the Western Bibbulmun suggested similar motives for paternal descent obtaining amongst their eastern neighbours.

All along the borderline where the two lines of descent met, the tribes were friendly with each other, intermarrying and adjusting their "in-law" relationships to suit the form of descent obtaining.’

(e) Dr Palmer’s comments on the historical material

187	Before dealing with particular topics, it may be useful for me to set out the comments on this historical material offered by Dr Palmer, and Dr Brunton’s response to that comment.
188	In chapter 7 of his report, Dr Palmer said:

‘The South West appears to have constituted a single cultural bloc, with dialects of a single language spoken by people who shared laws and customs in common. They recognised local and regional names, but they appear to have shared a commonality of belief, custom and material culture which distinguished them from their neighbours to the north and east.

Groups of people had rights to areas of land, which were gained, principally, by descent. A family was generally associated with a particular area. These rights were articulated as ownership of relatively well defined areas of country. The exclusivity of rights to country was mediated by a complex set of relationships developed through kinship, consanguinity, affinality and other alliances. As a consequence rights in land were not hermetically or exclusively bounded and more than one country group had rights to use country beyond their own. The exercise of such joint or shared rights was tempered by a requirement to follow protocols requiring the seeking of permission, for some activities, although this was not an invariable rule. People who were not known and with whom no alliances were recognised always required permission, if seeking to visit unfamiliar country and trespass was regarded as a serious offence.

There operated within Noongar society a system of social categories, complemented by and complementing the use of kinship terms whereby all people within a known social universe were classified as kin. Certain behaviours and obligations were required reflecting the kin classification obtaining.

In religious thinking, there was a strong emphasis on the importance and influence of the spirit world and funereal rites were particularly important. Divination was a part of these rites, and the Noongar doctor, or ‘clever man’ had a key role here, as in other activities that involved sorcery. The culture was marked by the telling of narratives of place, relating the here and now to the creative period of the Dreaming, and explaining how places in the landscape were imbued with spiritual potency. Other relationships with the natural world were expressed through a variety of forms of totemism, although these appear to have been variable and not uniform across the region. There was also a rich ritual life, which was marked for the Noongar people by the absence of circumcision and subincision.

Finally, there was a structure to the society, which rested on an acceptance of the seniority of older people and that young men (and, presumably, women) must learn from them and respect them. Authority was not centralised but rested within the family groups, usually with a senior male, although women could also be recognised as having authority through their seniority. Other leadership roles probably depended upon circumstance and individual ability and were tempered by kinship requirements. The society was marked by some acts of violence, which developed from a desire to revenge death as well as punishment for transgressions of Noongar social rules, which were understood to constitute a law by which people lived and acted.

The early accounts tell us very little about the economy of Noongar people, prior to settlement of the region by Europeans. Nor do we learn much about political relationships between groups and individuals. The accounts of the religious life lack first hand detail, and much must have been left unrecorded. Finally, we learn little or nothing about art and aesthetic expression. Despite these significant gaps, the accounts of the early settlers and those that followed soon after provide a basis for understanding Noongar culture. They also provide a point of departure for forming a view as to whether contemporary Noongar culture is founded on traditional and customary practices and rules.’

(f) Dr Brunton’s response to Dr Palmer’s comment

189	At para 4.3.4 of his report, Dr Brunton said ‘I generally concur with the conclusions about traditional Aboriginal culture in the south-west of Western Australia’, presented by Dr Palmer in chapter 7 of his report, ‘although with a few very significant exceptions’.
190	Dr Brunton went on:

‘In particular, I think he has overstated the cultural unity within the south west at the time of sovereignty, and that he has unnecessarily confused the issue of rights to land by his seeming unwillingness to apply distinctions that have been profitably utilised by other anthropologists discussing Aboriginal societies, including those of the south west.

I am also struck by Dr Palmer’s lack of attention to the ritual obligations to land and/or specific sites of importance that are most likely to have been a crucial aspect of people’s relations to their country. While he might contend that there is little information about these matters in the early accounts, he does not discuss the data that does exist, and which I presented and discussed at some length in my 2003 report ... The omission is particularly surprising in the light of Palmer’s own writings in relation to his research with traditionally-oriented Aborigines in other parts of Western Australia. Thus, in an article dealing with Western Desert people south of Balgo he stated, "Aborigines have developed a system of land tenure which is maintained and sustained through ritual enactments", and in one dealing with the Pilbara he wrote "in ritual, land-owners can demonstrate their spiritual relationship with land through the purveyance or revelation of esoteric songs or objects which are symbolic of their relationship with their country". In this regard is it also appropriate to note the more general remarks by Erich Kolig, a distinguished anthropological scholar of Aboriginal culture. Referring to Australia as a whole, he writes that the ethnographic evidence "clearly indicates that Aboriginal society had an obsession with the importance of ritual and the manipulation of symbols through ritual in order to exert control over the world in virtually all its aspects... Aboriginal culture attributed to ritual power over nature, world and society, and indeed saw ritual as necessary to guarantee their continued existence’’.’

(iv) Language
(a) Dr Thieberger’s evidence

191	In the introduction to his report, Dr Thieberger summarised conclusions he had reached:

‘The area of the claim ... extending from just north of Jurien inland and south to just east of Hopetoun, includes a group of languages collectively known as Noongar. The Noongar languages extend further to the east of the claim area, and in this report I distinguish the claim area from the larger Noongar region.

I will show why the Noongar dialects are considered to form part of a single language by comparing vocabulary items within the group, and then contrasting that vocabulary with neighbouring languages. The evidence suggests that Noongar is a single language consisting of a network of dialects (in the technical sense). I will also show that Noongar uses specific grammatical forms that identify it internally in contrast with neighbouring languages.

I will show that records of these languages going back to the late 1820s indicate that the same language has been associated with this country since that time.’

192

In his report, Dr Thieberger described his methodology and identified his sources. As none of the respondents challenged Dr Thieberger’s methodology or sources, I need not set out that material. The respondents say what Dr Thieberger calls ‘dialects’ should better be described as separate languages; the significant degree of commonality between them is to be explained by the fact that all the languages are descended from a common, Australia-wide ancestor. In discussing Dr Thieberger’s evidence, it is sufficient for me to concentrate on what he says that is relevant to these contentions.

193

Dr Thieberger’s report included a map (map 2 in his report) in which he identified what he called ‘the Noongar region’. The identification includes the whole of the claim area, but extends further to the east. Dr Thieberger marked on that map the locations of eleven named groups (Yuwat, Balardung, Wajuk, Binjarub, Wiilman, Kaniyang, Wardandi, Bibbulmun, Minang, Goreng and Wudgaarri), which together ‘form a dialect group’. He said:

‘This means that they share certain features, lexical items and grammatical characteristics, that are not shared with languages to the north and east ...’

194	On map 2, Dr Thieberger showed the location, outside the claim area, of six named language groups (Nhanda, Watjarri, Badimaya, Kalaku, Wangkayi and Ngatju), all of which, he said, ‘are generally acknowledged as not forming part of the Noongar group’.
195	Dr Thieberger commented: ‘From the earliest sources there is a recognition of the unity of the dialect group in the Noongar region’. He cited an observation by Grey in 1840:

‘Throughout the whole of this extensive range of country the language is radically the same, though the variations in dialect, and in the use of certain words by single tribes are very considerable. ... The foregoing observations will show my reasons for embracing in one vocabulary, the words found either generally or partially in use over so extensive a tract of country.’

196	Dr Thieberger also quoted from Moore’s 1842 descriptive vocabulary. Dr Thieberger said:

‘Moore talks of the region in which common words are found, "most of them are used under some form or modification by all the aborigines residing within the limits of Moore River to the north, the Avon to the east, the sea to the west, and King George’s Sound to the south. The characteristic peculiarity of the King George's Sound dialect is to shorten the words by cutting off the final syllable, especially where it ends in a vowel, a Kat, for Katta - Kal, for Kalla."

... "I have no hesitation in affirming, that as far as any tribes have been met and conversed with by the colonists, namely, from one hundred miles east of King George's Sound up to two hundred miles north of Fremantle, comprising a space of above six hundred miles of coast, the language is radically and essentially the same."’

197	Dr Thieberger referred to Bates’ statement about the ‘Bibbulmun Nation’ having ‘but one fundamental language’ throughout its whole area (see para 183 above) but with eleven local groups within the nation. The names of most of Bates’ eleven local groups have a similar sound to those of Dr Thieberger’s eleven local groups.
198	Tindale listed eleven local groups, whose localities clearly fall within the areas of the two Single Noongar claims. The names he gave those groups correspond closely, in sound, to the names used by Dr Thieberger. A twelfth group, which seems to be located in an area straddling the north-eastern boundary of the claim area, Tindale identified as Njakinjaki. Tindale said these people ‘were known to the southern tribes as Njagi and were said to be a naked people with an unintelligible language’.
199	A major component of Dr Thieberger’s report is his analysis of Aboriginal word-lists, compiled by various people, including Tindale. The lists reach from that of Flinders in 1801 to one made by Carl Georg von Brandenstein between 1970 and 1984. Dr Thieberger drew from this analysis the conclusion that there was a single language throughout the claim area.
200	Dr Thieberger considered whether there was evidence of a ‘distinction between Noongar and its neighbours’. He said:

‘It is not possible in this report to systematically contrast the grammatical systems of the Noongar language with its neighbours. In part this is because we have such poor grammatical records for all of these languages, and in particular the north-east neighbouring languages, for which we have virtually no information.’

201	However, in Table 8, Dr Thieberger made a comparison of ‘some grammatical features to show that the Noongar group exhibits forms that are not shared with all neighbouring languages’. He said:

‘In particular, the Noongar group are distinguished by having a Nominative/Accusative case system, unlike all languages around them. Like most Australian languages, these neighbouring languages have an Ergative system, which means that the subject of a transitive verb is marked differently to the subject of an intransitive verb. Further, the object of a transitive verb is marked by the same means as is the subject of an intransitive verb.’

202

Dr Thieberger went on to make a number of detailed comparisons between Noongar and its neighbouring languages. In relation to some matters, one or more neighbouring languages had the same feature as Noongar, but Dr Thieberger found a generally high level of distinction. He made the following comment:

‘As we have seen, there is a cohesion among Noongar dialects that we can characterise as dialect variation marked by differences in vocabulary but similarities in grammatical structure throughout the region. From the little grammatical information that we have we can see that there is little variation across the Noongar region.’

203	Dr Thieberger quoted, with apparent acceptance, a comment by A C Dench, in Nyungar, Macquarie Aboriginal Words (1994), that there ‘appear to have been three distinct dialects which differed mainly in their varying pronunciations of similar words’. Dench identified the locations of ‘three main dialect groupings’.
204	Dr Thieberger looked at place names. He said:

‘In some parts of Australia it is possible to correlate placenames with particular linguistic features of a local indigenous language. The Noongar region is one such place where the characteristic -ap/-up endings are commonly found. Douglas ... says the –ap suffix means 'place of' in Noongar.

Map 3 shows that Aboriginal placenames ending in -ap/-up are mainly concentrated in the area corresponding to the regions recorded by Tindale ... In this map 1897 out of 1955 (97%) names with those endings are found within the Noongar boundaries.

Tindale notes ... that Hammond's (1933) "big-tribe" grouping corresponds "closely with the spread of the [-up] suffix in place names." Tindale goes on to say that this "big-tribe" grouping "has some linguistic merit", and that it matches a grouping of non-circumcising people of the south-west. He also refers to this group as being the "[- up] people". A further placename suffix of the region is [-ing] which he suggests predates [-up]. For our purposes it is sufficient to note that both suffixes are found in the claim region, and that the extent of the –up suffix coincides with what we have identified as the Noongar language region.

In order to constitute a good correlation of placenames with linguistic features of the Noongar language, and therefore to relate the language’s speakers to a specific area of land, the –up/-ap placenames would need to be both (i) non-existent or at least rare in neighbouring and other areas (where we assume any form resemblance is more likely coincidental), and (ii) showing a fairly consistent distribution over the entire Noongar region. It is reasonable to say that the first condition is satisfied in this case (with Nyakinyaki a possible exception though not significant because of the poor information available). It is also reasonable to say that the second condition is not satisfied. It is clear from Map 3 that a large part of the Noongar region has no –up/-ap names: much of the Juat and Wilman areas and nearly all of the Balardong areas as identified on the map.

This distribution can be interpreted in a number of ways. First, it might reflect a recent dialect difference within Noongar whereby the –up/-ap morpheme only occurs across part of the area. It is not necessary to demonstrate that this distribution coincides with a major dialect distinction; linguistic variables are often not restricted to wellbounded dialect regions. Second, given that placenames are usually held to be more resistant to change over time than other aspects of a language, and that there does not appear to be any evidence that –up/-ap has been used to create new placenames in historical times, it could be argued that the distribution reflects a much earlier stage of the development of the dialect regions within the current Noongar area of land. Third, there is a possible argument that the –up/-ap area represents the entire Noongar-speaking area at an earlier time and that Noongar speakers spread into the rest of what is now the Juat, Wilman and Balardong areas after that time.

In the present case, the central question for the last interpretation is whether the hypothesised earlier time predates the imposition of British sovereignty over the region. Again, given that placenames are usually held to be more resistant to change over time than other aspects of a language, and again, given that there does not appear to be any evidence that –up/-ap has been used by Noongar people to create new placenames in historical times, it is reasonable to conclude that these places were named well before the imposition of British sovereignty. There is therefore no evidence on this basis that the current extent of the Noongar-speaking region is any different from its extent at the time of the imposition of British sovereignty.’

205	After a section dealing with the continuing use of Noongar language in recent times, Dr Thieberger expressed these conclusions:

‘In this report I have shown that the early records provide a number of wordlists of the language spoken by the indigenous people encountered by the first settlers in the claim region/ area. In some cases we also have grammatical information about that language.

By comparing a representative sample of wordlists I have shown that those recorded within the Noongar area show substantial similarity to each other and more than they do to those recorded from neighbouring languages.

In my opinion, from the accounts we have in the earliest sources and which I have discussed in the preceding sections of this report, it is clear that there has been a group of dialects constituting a single Noongar language and that this grouping predates European settlement.

By comparing these wordlists over time, in my opinion, we can see that there is a great similarity between the early lists of Noongar and those recorded by Atkins and Humphries in the last twenty years. This indicates that the language of the region has been spoken in the same place since at least the time of European settlement.

The number of speakers of Noongar as an everyday medium of communication has dropped significantly, and may be virtually a handful today, but the efforts of Noongar people to pass on their language and their identification of Noongar as their language, indicates, in my opinion, a strong sense of continuity with their linguistic tradition that clearly predates the settlement of Europeans.’

206

None of the respondents made any serious attack on Dr Thieberger’s evidence. No language expert was called to rebut his conclusions. Counsel’s cross-examinations were directed more towards elucidation than challenge. However, Mr Ranson did put to Dr Thieberger the issue of a single source language. The exchange was as follows:

‘Do you agree that the current understanding among linguists is that all Australian Aboriginal languages, or at least all the languages in the southern part of Australia derive from one source language, thousands of years ago?

DR THIEBERGER: I agree that as best we can determine it on the evidence that we have, there is great similarity among all of those southern languages such that they could have descended from one common ancestor language; I wouldn't like to say how long ago.

MR RANSON: Alright, well I'm not asking you to say how long ago, I think we can assume it was a significant time ago, but that is the generally accepted understanding among linguists, that there was most likely originally one source language for all of the current Australian languages, or the ones at sovereignty.

DR THIEBERGER: All of the current southern languages I think that's fairly uncontroversial.

MR RANSON: Yes. And when you say the southern languages what you're talking about there is essentially in fact all of mainland Australia other than some parts of the Kimberley and the far north of the Northern Territory, broadly speaking?

DR THIEBERGER: That's right, that's correct, and Tasmania for which we have little information.

MR RANSON: Yes. And I think the name that linguists have given to that purported original language is Proto-Australian?

DR THIEBERGER: Pama Nyungan is the term for the southern group of languages, Proto Pama Nyungan.’

Dr Thieberger said there were ‘some similarities’ between all the Pama Nyungan languages; the theory is that the similarities arise because the languages came from the same source.

207	Dr Thieberger also agreed that, ‘a further step down the language tree ... one arrives at ... a Nyungic group of languages’ which were spoken throughout Western Australia, except perhaps some of the Kimberley.
208	Mr Ranson referred Dr Thieberger to Ngayarta, which Dr Thieberger called ‘a construct’ of Pilbara languages. He said:

‘... from what I know of the Pilbara languages, the differences between the languages that form the lower parts of that tree are different to the relationships between the languages that form the lower parts of the Nyungar tree – so ... the sub-parts of Nyungar as a subgroup show greater similarity to each other than do the sub-parts of Ngayarta, which have much greater differences between them.’

209	Mr Ranson suggested to Dr Thieberger that the collective name ‘Noongar’ was ‘first clearly attached to all of these languages by a linguist ... in the 1960s and 1970s’. Dr Thieberger replied:

‘In a technical linguistic sense I think that’s true. I think the earlier sources all note that Noongar is a term for Aboriginal person in all of these languages and that's one of the forms of naming languages, so in ... that sense we can go back to some of the earliest written sources to show that Noongar is a common term for all the languages of the south-west.’

210	Dr Thieberger was asked to explain the difference between a language and a dialect. He said:

‘Alright, usually the language is considered to have dialects and the dialects are variants in various aspects of the language. There may be variation in vocabulary, there may be variation in accent, there may be variation in grammar, so that we can talk of dialects of English, some people consider the English as it's spoken in the United States to be a different dialect to the English that's spoken in Australia.

...

The distinction is, the distinction between dialects is that they share sufficient features to allow them to be grouped together, so if you have a substantial proportion of a vocabulary that is shared by two varieties, let's call them varieties, because that's a neutral term. If a substantial proportion of a vocabulary is shared by two varieties, then we can consider them to be dialects, and if more than a substantial proportion, so in lexico-statistical terms we talk of 80 per cent shared vocabulary, and higher than that, we could consider them to be one language.

...

But if you have varieties that have similar grammars and similar vocabularies then they're more likely to be dialects of one language. The extent of that sharing can determine whether it's a single language or multiple languages.’

211	Mr Ranson then had this exchange with Dr Thieberger:

‘MR RANSON: And so from amongst all that complexity and debate, can I come back to the exercise that you carried out in your report. You haven’t ... really been able to work with enough material or enough material of the right type to draw any firm conclusions at all about languages and dialects and the inter-relationships within the region that you were looking at; is that a fair assessment?

DR THIEBERGER: No, I think that the grammatical information that we have indicates that all of the varieties that we have in the south-west stand together as a group of dialects; they have sufficient similarity to be considered part of one language bloc, and that distinguishes them from the language to the east, Ngatju, languages to the north Watjarri and Badimaya, ...’

212	In response to Ms Webb, Dr Thieberger agreed that, from his research, ‘dialect differences have been used in the south-west of Western Australia as a means of social identification of groups’.
213	Ms Webb asked Dr Thieberger to reconcile Dench’s identification of three dialects with the eleven dialects listed by him. He responded:

‘Dench's listing of dialects is based on identification of linguistic features, and he talks about three broad forms in the southwest. The listing that's in the handbook, as I've said, is a listing of the terms that we have in the literature. So it's to do with groupings that have been identified in the literature. The handbook was primarily provided so that people could - could look up information about languages. They were going to look up the terms that they knew in the handbook. The fact that linguists identify three broad varieties of linguistic types in the southwest is not something that Noongar people would necessarily identify with. So the distinction is of the intention behind the creation of the handbook, and - and also Tindale's map, which is there to look at social groupings, rather than linguistic variety.’

214	Dr Thieberger explained that the differences between his dialect names and Tindale’s were ‘actually just variations in spelling’; Tindale having used a semi-phonetic spelling.
215	Dr Thieberger was asked about a thesis he had written in 1988 in which he mentioned a class at Bunbury. He had said the participants:

‘... set about learning Noongar. They had a sketch grammar and numerous vocabularies and the class included two older people who remembered some Noongar. When faced with the morphological complexity of the language as presented in historical sources, the group reconsidered their aims. They drew a time line with "old Noongar" on one end, based mainly on written sources, and English at the other end.

They chose a form of language that they considered would be located somewhere along the time line closer to the English end than to the old Noongar end. The use of the time line illustrates their identification of their own vernacular as related to the traditional language, however distantly.’

216	Dr Thieberger explained:

‘Well, as I say in that paragraph, they recognised that old Noongar was a full language with all the complexity that every language has, and that if they were to relearn it, it would be a massive task. So they decided to situate the Noongar that they would be interested in relearning somewhere closer to their time.’

(b) Aboriginal evidence about language

217

All the Aboriginal witnesses called by counsel for the Applicants referred to their traditional language as ‘Noongar’. All claimed to speak and understand it, to varying degrees. In the evidence given by the various witnesses, several common themes emerged. Most of the witnesses said they learned Noongar from their parents, grandparents or other older people. Most said they had passed it on, or were passing it on, to their own children and grandchildren. Many witnesses mentioned regional differences in vocabulary or pronunciation but all of these witnesses nonetheless insisted Noongar speakers could understand each other.

218

It would be tedious to set out all the evidence given about language by the Aboriginal witnesses, but I will try to give the flavour of this evidence by summarising the evidence of ten witnesses, selected so as to include at least one person who gave evidence in each district within which Aboriginal evidence was taken.

A Jurien Bay

219	Mr WW was born at the Moore River settlement at Mogumber in 1946. In his witness statement, he said he used to listen to his grandmother and his father speak to each other in Noongar; he picked up a lot of words that way. Mr WW said he knew many Noongar words, especially those that relate to plants, animals and parts of his country, but he does not talk Noongar all the time.
220	In oral evidence, Mr WW gave examples of his use of Noongar, sometimes mixed with English. He said his children and grandchildren were learning and using Noongar, as he had done.
221	In cross-examination, Mr Ranson asked Mr WW whether people speak Noongar words differently in different places. Mr WW replied:

‘There’s a lot of different dialects within Noongar country, and they ... use it but we all still understand it, just the same thing, same word.’

Mr WW explained he meant others use ‘the same word but they’re pronounced differently’.

222	Charlie Shaw was born in 1939 at Fremantle. In his witness statement, he said:

‘There are different pronunciations of the Noongar language. I know quite a few words. Sometimes it takes a little while to remember the Noongar names for everything.

I know the Noongar names for a number of different site[s] and the name for various bush foods. I remember from what the old people, including my mother, taught me. Old people (uncles and relations) used to tell us the words in the camps, sitting around the fire.’

223	During cross-examination, Mr Ranson asked Mr Shaw whether his pronunciation of some words was different to the way some other people say the word. He agreed it was. Asked to explain the difference, Mr Shaw said:

‘... it’s probably the gap where some of the mob have been taken away or put into institutions or where they had to be moved in certain countries and they lose the sort of full benefit of the wording, I suppose, if that’s the right way of putting it. Like they’re being pushed away from the Noongar people and they lose that wording properly.’

B Albany

224	Lynette Knapp was born in Perth in 1954. She said her father, Alfred Knapp, was ‘a Mearnanger man from Minung country around Albany’. She explained that Mearnanger and Minung mean the same thing. Ms Knapp believes her great grandmother, Jackbam, who was born about 1835, was an informant for Daisy Bates and that Jackbam’s grandfather was Nakina (Nakima), the older brother of Mokare.
225	Ms Knapp described how she learned the Noongar language:

‘When I was a child I can recall my father speaking Noongar language with his friend, Vincent Wynn and others around the blackfella camps. He would speak to me and my siblings in language and taught me much of the language so that I will speak to my children about the landscape and the animals using Noongar language.

My father taught me most of the Noongar words for plants and animals by taking me out to his favourite spots. I often do not know the English words for some plants and animals because I was taught the words in Noongar language. Speaking Noongar language, rather than English, is natural for me and feels more comfortable than using English when I speak about things on my country. Because of my father’s thorough knowledge of the Albany area he taught me the Noongar names for places. Some of these names have been adopted by wadjelas (white people) and changed slightly by the spelling of words that have different sounds to what I say. An example of this is Kalgan River which I was told is the Kalganup River. Many Noongar places that are unsettled don’t have wadjela names but they do have Noongar names. An example of that is Beedjibup which is near Denmark. I only know that place by its Noongar name because it has never become a wadjela place.

My children continue to learn the language as we visit our country to hunt, fish, camp and look after important places. I also believe that the Knapp family mob communicate using sign language. We can say a lot without using words. I was taught it while growing up.’

226	During the course of cross-examination, Mr Ranson asked Ms Knapp about language. She said she was ‘not fluent’ in Noongar, but ‘I know what someone else is talking about’. She got the language from ‘my dad, other family members, something that I was raised with’. Mr Ranson asked about differences:

‘And are there different languages in different parts of Noongar country. You mentioned before the Wilmun language. Is that a different language?

LYNETTE KNAPP: Some. Some, but they're all universal. You - if people - my people from the Wilmun people talk to me and say something, I know basically what they're talking about. There are little differences but not much. It's - it's the way of Noongars learning to communicate.

MR RANSON: And is there a language like that that's a bit different, that's Mearnanger language?

LYNETTE KNAPP: Mearnanger language, some of the language is totally different.

MR RANSON: Totally different.

LYNETTE KNAPP: But I would know - if I went from here to Ngadju country, I'd know what they're talking about because it's connected.’

227

Lomas Roberts was born in 1939 at the Gnowangerup mission. His father had been born at Jerramungup. Mr Roberts did not know the year of his father’s birth but he understood his great-grandfather to have been given the name ‘Bob Roberts’ when he went on an expedition, in the early years of the Colony, with John Septimus Roe, the Surveyor General. Bob Roberts later worked for the Hassell family at Jerramungup.

228

In his witness statement, Mr Roberts said:

‘I can speak a lot of Noongar, I speak it with a lot of people I meet, like Henry Dabb, Tom Egan and Greg Moore. We say things like: ‘how are you going?’, ‘where you come from?’, and ‘what’s going on there?’ I’ve taught Noongar to my children and am teaching it to my grannies.

I know Noongar words for most things out in my country. It’s sometimes hard to remember all these words unless you are on your country looking around, or talking to other that can speak Noongar.

Henry Dongup taught us all the Noongar words and ways. By this I mean the Noongar language, the names of places, and respect for the country.

Today, I teach Noongar children about current Noongar ways and heritage issues on country. Noongar language needs to be taught on Noongar country. I have written a book of Noongar stories for children to be taught at primary schools and also I teach Noongar language at the Curtin University.’

229	In oral evidence, Mr Roberts said he learned the Noongar language from his grandfathers, uncles and father. They also taught him Noongar songs and the Noongar names for places on his country.
230	Mr Ranson asked Mr Roberts about regional differences. Their exchange was as follows:

‘MR RANSON: And do you know all the Noongar language or just some of it?

LOMAS ROBERTS: I know my language, a lot of it, and bits and pieces of other countries.

MR RANSON: So, there are different languages for different countries around the place?

LOMAS ROBERTS: Yes, different languages.

MR RANSON: And are there things you don’t know the words for in your language, some words you don’t know?

LOMAS ROBERTS: There’s not too many things I don’t know, in my language anyway, but if you get up north there will be.

MR RANSON: When you say "up north", where do you mean? Where does it get - - -

LOMAS ROBERTS: Well, I mean the north with the language I can’t speak that very much.

MR RANSON: And what about up in Perth, is it a bit different up there the language?

LOMAS ROBERTS: Yes, I think it is.

MR RANSON: You think it is?

LOMAS ROBERTS: If you don’t pronounce it properly like.

MR RANSON: So, it’s a bit different up there?

LOMAS ROBERTS: A little bit different, yes.’

C Lake Toweringup

231	The oldest Aboriginal witness in these cases, Angus Wallam, was ‘born at Mogumber (Moore River) in around 1925 or 1926’. In his witness statement, he said:

‘I speak Noongar language very well and I can sing Noongar songs too. My grandfather taught me as well as other older people I grew up with. When I was younger, I always lived with the old fellas. For some reason they liked me, and showed me things – looked after me. I remember sitting around the fire with the old fellas, and they would all sing Noongar songs. Some of the old fellas were Levi Moses, Yurrang Moses, and Wirraben Moses. Some of them were Noongar men from Saltwater country (Bremer Bay way). I would hear older Noongars singing at Carrolup and at Katanning and when we were travelling through the bush.’

232	Mr Wallam said he could sing Noongar mirdar songs. He explained:

‘They are songs that are for a particular country. You should only sing songs that come from that country, and not from other places. People don’t like you singing songs when it is their country and not yours.’

233	Mr Wallam said he learned ‘lots of songs by sitting around the campfire. Singing songs was another way of telling yarns’. He gave an example:

‘One Noongar song I know is about a man stealing another man’s woman. You have to watch Noongar men, because they were always stealing the other Noongars’ women. A man gave his woman a fire stick to take with her, so he would know where she was. One night she went to go to the toilet, another man came along. He told her to put the fire stick in the ground, and then they both ran off. The old fellas were always telling yarns like this, I tell them to my grannies [grandchildren]’.

234	During oral evidence, at Mr Hughston’s request, Mr Wallam sang a song, in Noongar language, about a ‘chap a long time ago he lost his missus’. Mr Wallam explained:

‘Yes, I used to go out with the old people. I lived with the old people and I’d hardly go out with young people myself and I’d mix with the old people and learn and listen to what they ... talk about and what they sing about ... But I wasn’t quite quick enough to catch onto grandfather now and again, you know ... Because he was a great singer himself.’

235	Mr Wright returned to this topic in the course of his cross-examination of Mr Wallam. The evidence was as follows:

‘MR WRIGHT: Yes. You know some of those mirdar songs do you?

ANGUS WALLAM: I used to sing some of them. See, I wasn’t quite quick enough to catch the old people, you know. I wasn’t interested in it.

MR WRIGHT: Yes.

ANGUS WALLAM: To keep doing it or sometimes the old girls or even grannies will say, "Yes, boy, you listen to old Granny here", see? And sometimes I’d listen.

MR WRIGHT: Yes.

ANGUS WALLAM: But I did learn a few things from them anyway.

MR WRIGHT: But do you still remember those mirdar songs?

ANGUS WALLAM: Yes.

MR WRIGHT: Yes. And you still know how to sing them today do you?

ANGUS WALLAM: I know how to sing them, yes, today.

MR WRIGHT: Yes. And are they just songs for this Wagin district?

ANGUS WALLAM: Everywhere, yes, around this side of the district, all around southwest everywhere.

MR WRIGHT: All around the southwest?

ANGUS WALLAM: That’s right.

MR WRIGHT: But you’re not allowed to sing – you can only sing songs – mirdar songs for the Wagin area if you’re in Wagin, is that right?

ANGUS WALLAM: I suppose it is right in a way. Well, you’ve got to be careful what you’re singing. You might sing a song from the northwest and the people up northwest mightn’t like you using their songs. The same as the white fella, if he makes a song up and somebody else uses it he can – it’s not – it’s not right really.’

236	Joseph Northover was born in Collie in 1966. He gave evidence that he speaks the Noongar language and sings Noongar songs; he learned from his parents, grandmother and ‘other old people that I grew up with’. Mr Northover itemised the different types of songs, including winyan songs (sad songs) and mirdar songs. He said it is sometimes hard to translate Noongar language and songs into English.
237	In oral evidence, Mr Northover told Mr Hughston that he speaks a little Ngaanyatjarra Arrente, a Western Desert language, because of his maternal grandfather.
238	Mr Wright asked Mr Northover whether there were differences of languages or dialects within Noongar country. He responded: ‘Not so much different dialect. They were pronunciation.’ Mr Northover gave some examples, adding ‘you’ve got to be careful how you say it’. He did not agree there were different words, merely different pronunciation.
239	Mr Northover said that, in recent years, he had picked up some additional Noongar words at the Noongar Language and Culture Centre in Bunbury. Mr Wright asked him whether there were many other people around who speak the Noongar language as well as he did. Mr Northover responded, ‘Quite a few left’, although ‘not too many left in my age’.

D Dunsborough

240

Vilma Webb was born at Northam in 1932. Her father was born at Guildford, near Perth, but her mother and maternal grandparents were all born south of Perth and Ms Webb has lived there most of her life. Ms Webb said she learned Noongar language from her parents; they used to tell her stories in Noongar. She said that, when she speaks to her children about special places or animals, she teaches them the Noongar words. She has also taught Noongar to schoolchildren in Busselton, Margaret River and Bunbury.

241

Mr Wright asked Ms Webb about the Wardandi language. Ms Webb described it as ‘a language from down this area’. Mr Wright asked whether Wardandi is ‘a bit different from the language around the Albany area’. Ms Webb replied: ‘Yes, some – some difference in that you can – you can see it when you start to read it out’.

E Kellerberrin district

242	Mr MW was born in 1938 at Djuring, a place near Kellerberrin. He has lived in that district all his life, except when away working for the Railways. Mr MW said:

‘I speak Noongar language a lot of the time with my family. I speak Noongar with my mother, uncles, and also with my sister Charlotte, and her son, John. I’ll talk Noongar to any body that I meet who is happy to listen. My uncle Ossie Humphries, I’ll talk Noongar with him also. Whenever I go to special places in my area, I call out to the spirits in Noongar. I tell them who I am and where I am from and that I am family. It is an important rule to always tell the spirits what you are doing or you can get into trouble.’

243	Mr MW also said:

‘I am a Noongar. My mother, father, mother’s mother, mother’s father, father’s mother and father’s father were all Noongar.

All Noongars speak the same language and they don’t do those bad things that the Wongais and Yamatjis do.’

244

Prior to giving his formal oral evidence, Mr MW pointed out to the Court a number of important land marks on his country. Mr Hughston noticed that, in doing so, he sometimes used an Aboriginal language. Later, Mr Hughston asked Mr MW about this. Mr MW said it was ‘Noongar language what I was taught by my elders and mums and dad and grandfathers’. He said ‘it’s very important to me. It was handed down and today still ... very strong and significant.’ He said he had taught Noongar to his own children.

245

Mr Hughston asked Mr MW whether the Wangkayi language (used outside the claim area) was ‘the same or similar to Noongar language, or is it different?’ Mr MW replied: ‘Well, same in some ways ... but different in others’. He gave the example of the word for ‘brother’ – ngoorn in Noongar, kuta in Wangkayi and Yamatji.

F Swan Valley

246	Frances Humphries was born in 1942 at Walebing, between New Norcia and Moora. Her father was born in Moore River Settlement in 1878. Her mother was born at New Norcia but claimed the Upper Swan as her country; this had been her father’s country. Ms Humphries said:

‘My parents both spoke Noongar language, but when I went to New Norcia mission we were not allowed to speak it. If we were caught talking it we would get a clip around the ear. I remember some of the older girls speaking Noongar. There were a couple of Yamatji girls in New Norcia who used to speak their language too. I could usually understand what the Noongar girls were saying, but I couldn’t understand the Yamatji girls.

My mother-in-law, Gertie, spoke Noongar. She used to talk half and half. That’s how I caught on a bit of it, you know. I still use a few Noongar words when I am talking to my husband and children.’

In her oral evidence Ms Humphries was not asked any questions about language.
G Kings Park

247	Gregory Garlett, who was born in 1951 at Bruce Rock, gave evidence about meeting his great-grandmother, Yurleen (also known as Fanny Bennell), when he was about seven years old. He said: ‘she told me stories and mostly spoke Noongar. She didn’t have much English. I was still learning Noongar then whereas most of the older kids knew it already’.
248	In his witness statement, Mr Garlett said:

‘I speak Noongar words and can understand others speaking Noongar. My mother spoke Noongar to us and I teach my kids to speak. I write some speeches in Noongar for Uncle Clive Davis that he uses at openings for events in Perth. The words are back to front in Noongar, you name the subject and then talk about it, for example, you’d say in Noongar: "yonger, kill it" rather than "kill the kangaroo". That way, you know what you are talking about up front. Noongars also use their eyes when they are speaking. Noongars also have a different accent when they speak English so you know they are Noongar. I talked a lot with my mother, now I teach my grandkids and kids. I speak with Uncle Clive and Uncle Tom Ford. I also speak Noongar words with Robert Bropho and Kelvin.’

249	When Mr Garlett gave oral evidence, Mr Hughston asked him how well he could now speak Noongar. Mr Garlett commenced his reply by speaking in an Aboriginal language. He went on:

‘I can speak that language. I speak it with all my senses, my eyes could see good, my ears are good to hear it, my mouth speaks it the way I've been taught and I speak with my hands and eyes and the sign language Noongars use when they don't want to be seen talking.’

250	Carol Petterson and Ms Knapp, both of whom were brought up in the Albany area, and Mr Northover, from Collie, also spoke about the Noongar habit of using sign language.
251	As will be apparent from my reference to the places where witnesses gave their evidence, and their birth places, the ten witnesses to whom I have referred come from widely scattered parts of the claim area. Their dates of birth span a period of about 40 years (1925-26 to 1966). Yet all claimed acquaintance with a language they identify as ‘Noongar’; all said they learned this language (to a greater or lesser degree of competence) in childhood from their parents and/or older relatives. Although those asked about the matter acknowledged some differences in pronunciation, and occasionally in vocabulary, between Noongars from different parts of the claim area, all maintained they could understand any other Noongar person, regardless of his or her place of origin.
252	I think the Aboriginal evidence lends support to Dr Thieberger’s conclusions about a single Noongar language with only dialectical variations.

(c) Dr Palmer’s evidence

253	In his anthropological report, Dr Palmer discussed the significance of language in identifying a society. At para 2.10, he said:

‘Anthropologists generally accept that language is one of the unifying cultural traits that can be understood as forming commonalities between groups and so result in their members being considered as a part of one society.’

254

Dr Palmer went on to cite writers, including Moore, Salvado and Hassell, who had expressed the opinion that the language used by Aborigines in the south-west, coming from places far apart, was one language, albeit with dialectical differences. I have already set out the statements by Moore and Salvado. Dr Palmer summarised Hassell’s material in this way:

‘Hassell, who collected her information some decades after Moore, identifies a number of groups (which she called "tribes") including the Wheelman (sixty miles from the coast), Mongup tribe, "further inland", Caractterup tribe, Kar Kar "more toward Esperance Bay", Qualup tribe and their coastal neighbours and the "Bremer Bay tribe". She stated that the language spoken by these various groups was the same as that spoken in the rest of the South West of Western Australia, but with dialect variation.’

255	In chapter 9 of his report, headed ‘The Claimant Community’, Dr Palmer wrote at length about language. In that chapter, he said:

‘Those with whom I worked were not only aware of their Noongar language, but held views as to its importance as a determining aspect of their culture. A number of claimants stated that they continued to speak the Noongar language and that its use was common amongst the Noongar population. A number of people stated that they learnt the Noongar language from their parents or older relatives. Noongar words were used during interviews and site visits. Those with whom I worked regarded the use of the Noongar language and styles of speaking as a means of establishing their identity. This was because the language was different from those used by neighbours belonging to different cultural groups to the north and east. One man told me that when Noongar language words were used they provided a means by which non-Noongar people recognised you. It was a view widely held. Use of the Noongar language was seen to provide a ready means by which people could be identified as being Noongar. Noongar language was also as a means of identifying yourself to other Noongar people, with whom you were not personally acquainted. The use of the language was also seen as a source of pride, even if it was others who spoke it and made you "feel good".

Others recognised that there were regional differences between the Noongar language characterised by differences in the pronunciation of words. It appears that at least some claimants continue to teach their children Noongar words and Noongar is taught in some schools in the region. I was also told that the language continues to be used by young people as words, creating a distinctive style.

In relation to these data I make the following observations. Given the scope of my research I cannot make definitive comment on the degree of fluency with which Noongar is currently spoken. It would appear to me, however, that the language is used by the majority of the claimants as a form of what one linguist, W. Douglas, called "Neo-Nyungar" .... Douglas does however state that Noongar continues to be spoken by some middle-aged and by ‘elderly folk’. I would expect that there do remain some fluent speakers of the Noongar language. Neo-Nyungar is characterised by Douglas as a development from Noongar, influenced by English, sharing semantic, phonemic and grammatical aspects of both languages. Neo-Nyungar is, according to Douglas, ‘a unit in the continuum of language change’. My view is that most claimants are referring to Douglas’s ‘Neo-Nyungar’ in the discussions referenced above. This does not diminish its social and cultural importance, nor the evident role it plays in the maintenance and establishing of a distinctive Noongar identity. The language, as used, has a distinctive style which means that its use is an ideal vehicle for establishing identity with outsiders, as well as with insiders, both known and unknown ...

The data presented above also indicate that regional variations in the Noongar language remain. These dialect differences were noted in present-day Noongar by Douglas. Douglas identifies six regional dialects of Noongar. Dench recognises only three dialects, but lists words as belonging to six regions. These regional variations in speaking are understood to be in evidence today by the claimants. They are seen to be markers of regional difference within the single Noongar language.

Finally, my view is that the Noongar language, however typified in practice, is considered by many claimants to be an important part of their culture and has value to them. Language is an important aspect of any culture since it may encapsulate concepts, beliefs and ways of thinking. Its use provides a clear statement about the speaker’s geographic origins and territorial affiliations, their ancestry and their cultural heritage. Noongar language would appear to me to be used by many of the claimants to enunciate these aspects of their identity. The fact that Noongar is taught in at least some of the schools and that some of those with whom I worked stressed that they taught their children the Noongar language also supports the conclusion that Noongar language use remains important.’ (Citations omitted)

256

Dr Palmer’s report was written prior to the ‘on-country’ hearings. Dr Palmer subsequently heard, or read, all the evidence given at those hearings. When he was called to give oral evidence, Mr Hughston asked Dr Palmer whether the Aboriginal evidence had caused him to ‘wish to alter or comment upon any of the opinions’ expressed in his reports. Dr Palmer said he did not wish to change any of his expressed views, ‘except perhaps in relation to some emphasis’. He identified four areas, one of which was language. In relation to that topic, he said:

‘I think maybe I’ve underestimated ... the incidence of the language, particularly in relation to more complete sentences, which I’ve heard from some of the witnesses, and also in relation to ... songs. So I think I might’ve sharpened that point a little bit in my analysis.’

Dr Palmer explained he had underestimated the extent to which the language is still used.

257

After Dr Palmer mentioned a couple of other matters, Mr Hughston asked him what, in his opinion, ‘distinguishes the Noongar people as a society of people distinct from other Aboriginal people who are not Noongar?’ In the course of responding to that question, Dr Palmer mentioned ‘the use of a common language’. He said:

‘There seemed to be a lot of evidence, and also provided from my colleague Dr Thieberger, that Noongar as a language constitutes a particular and single language, although it has regional variations, which is understood to be and to belong to the area of the southwest, whereas languages outside are differentiated by name and by recognition that they have different words, they are fundamentally different. Even if people don't know the exact difference, that's the ... recognition.’

258	During cross-examination of Dr Palmer, Mr Wright had these exchanges with him:

‘Now, I wanted to ask you ... are you suggesting that when Aboriginal people at sovereignty used the term "Noongar" they were referring to all the Aboriginal people of the southwest?

DR PALMER: Well, the best guide we have to that is the citation in Moore, in his word list, where he says "Noongar", and the definition he provides is something like "the word the people use to designate themselves".

MR WRIGHT: Yes. Now, that doesn’t necessarily indicate that they're designating all the people of the southwest, does it? It might just mean that those with whom - those who are using the word "Noongar" in a particular locality used the same word to refer to the people in their locality.

DR PALMER: Yes, indeed. The usefulness of the Green reference that you've drawn our attention to is, of course, that Green, as you say, was relying on sources where the term Noongar had been collected not just from one area, from the Perth area, but from a great many areas. In fact, Curr, who's a little bit later - I think that's 1888 or thereabouts, your Honour - was systematically collecting word lists from - I mean, the whole book is from the whole of Australia but the relevant references here are references which were collected from the compilation of ... word lists from around the southwest, which Green has brought together in that single table.

And, you know, Green is of the view that this is an indication that this word was very widespread. So I agree with the proposition that's put to me, if the term only occurred in one region as Noongar, then perhaps it raised issues about whether it was universally applicable across the southwest, but the evidence that Green has put together, and consistent with his own conclusions in his ... earlier history report, is that that provided indications that the word was used across the southwest identifying commonality. And there's nothing more common, surely, than the use of the same name to identify the same thing.

...

MR WRIGHT: Yes. So what I'm wishing to explore with you is - is whether your opinion is simply, on that point, that there was some dialectical similarity ... . Is that the point you're making, or are you making the point that when someone in Albany used the word "Noongar" you think they were referring to everyone including the people in Jurien Bay?

DR PALMER: Well, the term "Noongar", ... has four principal referents, so it's going to depend on the context of the citation, obviously, as to what they ... mean. But it seems to me logical that if someone here is called "Noongar" and someone down there is called "Noongar" and they meet and they say to each other - sorry, this is somewhat hypothetical, your Honour, but they say to each other, "Who are you?" and they say, "I'm Noongar," and they say, "Oh, I’m Noongar too", then there's the basis for an understanding that they share a commonality.

Now, that - but, remember, language was only one of the things that I said they shared.

MR WRIGHT: Yes. So if - to use that hypothetical example, if a person in Albany around the time of sovereignty had met someone who'd just come down from Carnarvon, for example, presumably they would've said, "You’re a Noongar".

DR PALMER: If they came from Carnarvon, I think, your Honour, it's more likely they would've said that they were Yamatji.’

259	Mr Wright took Dr Palmer to the dialectical differences noted by Bates. Dr Palmer responded:

‘I don’t think it would be a fair representation of Bates in this piece to conclude that her analysis was leading her to a conclusion that said that they were speaking a different language. In fact, my recollection is that she says on a number of occasions that they were very much unified both by their customs and their ... laws and ... rules.’

260	Dr Palmer mentioned Bates’ statement that ‘the Bibbulmun Nation throughout [its] whole area had but one fundamental language’: see para 183 above. Dr Palmer called this ‘her initial proposition’. He went on:

‘So, I mean, all Bates is doing here is recognising what everybody else as far as I know has recognised, and that is, amongst the Noongar people, there were - in the language that they spoke, there were dialect variations.

MR WRIGHT: Yes. And so the proposition I’m wanting to put to you - and not getting caught up in differences between language or dialect, unless you think that is very significant, when you say that anthropologists generally accept language can be a unifying cultural trait, I'm asking whether you consider language can also be a cultural trait which was used to differentiate different societies.

DR PALMER: Well, you've glossed over a - a very, very important distinction which anthropologists and linguists do make, and that is that there is a difference, a very important difference, between dialect and language.

...

DR PALMER: - what I'm saying, where I'm coming from is that, just by establishing that there are different dialects within a language is - does not necessarily go to matters of disaggregation of constituent dialect-speaking groups.

MR WRIGHT: Yes. Now, I understand what you've just told me. Can I ask you nonetheless - you say "does not necessarily" - do you think it can, in some circumstances, be a very significant disaggregating criteria, even dialect difference?

DR PALMER: Well, linguists, I think, and anthropologists, no doubt, would agree - that in terms of social interactions, people use dialects to establish certain things about themselves. But that underpins - if you like, is underpinned by a much more fundamental question is, "Well, are there still areas of commonality?". I mean, ... there are a number of different accents in this courtroom, if you like, tending towards dialects, but that doesn’t mean to say we don’t probably consider ourselves to be part of one community or society. It’s sort of - by asking the question in a very broad way, it’s - it perhaps doesn’t allow an answer which focuses on the detail of what's actually going on.’

(d) Dr Brunton’s evidence

261	In Section 4 of his report, Dr Brunton addressed the question whether the Single Noongar claim was anthropologically justified. He referred to cultural and linguistic evidence. He said:

‘I accept that from the perspective of present-day researchers, there appears to have been a considerable degree of linguistic and cultural similarity across the south west of Western Australia. Certainly, many contemporary anthropologists would accept Dr Palmer’s contention ... that the people now identified as Noongar constituted a "cultural bloc" – although it is important to point out that this is an anthropological construct which is not the same as "a single cultural society". But, even so, some other well-informed researchers who were interested in delineating cultural areas would not be as sure – Peterson cites Tindale as identifying two culture areas (i.e. "blocs") in south west Australia, the -up people (the area where place names frequently end in "up") and the -ing people (the area where place names frequently end in "ing").

However, whether or not anthropologists or linguists can find strong commonalities in culture and language, it does not necessarily follow that this was acknowledged by the people themselves, or that any such recognition had consequences in terms of social organisation, land tenure, etc. Dr Palmer’s discussion of both language and culture elides an important anthropological (and linguistic) distinction between the external observer or researcher’s perspective (the ‘etic’ view) and the perspective of members of the culture or language under discussion (the ‘emic’ view) ... The fact that different groups of people spoke dialects that can be identified by linguists or other observers as belonging to a common language, or that they had similar rituals, forms of social organisation, food preparation or material culture ... means nothing if the groups themselves did not see these characteristics as socially significant.’

262	Dr Brunton went on to say:

‘I do not have the expertise which would enable me to make an assessment of the linguistic similarities or differences within the Single Noongar Claim area at the time of sovereignty. Nevertheless, I think that it is appropriate for me to point out that early observers wrote of differences significant enough to affect intelligibility. Lyon wrote that "almost every tribe has a different dialect. The difference in some cases, is merely provincial; but in others it is so great as to be unintelligible" – although he also thought that like the languages of different nations in Europe there was probably a common origin to these "dialects". Collett Barker said that the language at Coconyup ... was "quite different" from the language at King George Sound, and that Mokare did not understand it – although Maragnan, who had travelled in the area, did. And when Bishop Salvado was finally able to persuade a young man from Moore River to travel with him to Perth, he noted that at first, this man did not understand the language of the Perth Aborigines.

Nevertheless, Dr Palmer cites a statement from Salvado that the people of Perth and King George Sound "speak practically the same language". However, he does not explain that this was in the context of Salvado’s suggestion that all the Aboriginal languages of Australia derived "from a common stock" and Salvado’s further observation that "a great number of the words used" by the Adelaide people "agree with those used in the Perth district". This context means that Salvado’s cited statement should not be taken as evidence of a sense of commonality between the people of Perth and King George Sound.

A similar context framed the observation of G.F. Moore which Dr Palmer also invokes as early support for the proposition of a single language in the south west. It is appropriate to quote Moore at some length on this point:

... as far as any tribes have been met and conversed with by the colonists, namely, from one hundred miles east of King George’s [sic] Sound up to two hundred miles north of Fremantle... the language is radically and essentially the same. And there is much reason to suppose that this remark would not be confined to these limits only, [my emphasis, R.B.] but might be applied, in a great degree, to the pure and uncorrupted language of the whole island. Many of the words and phrases of the language on the eastern and southern sides of Australia... are identical with those used on the western side.

Of course, Dr Palmer does cite Clark’s observation that the Aborigines from King George Sound and those to the west as far as Point D’Entrecasteaux did not understand the vocabulary that George Grey had collected. But he does not consider whether this observation compromises the suggestion that Aborigines of the south west could be viewed as "part of one society".’ (Citations omitted)

(e) Applicants’ submissions

263

In their closing submissions, counsel for the Applicants referred to the comments about language made by Moore (paras 173 and 196 above), Salvado (para 174) and Hassell (para 254). They referred to Dr Palmer’s views and Dr Brunton’s concession that there was, at sovereignty, a ‘considerable degree of linguistic and cultural similarity across the south-western region’. However, not unexpectedly, counsel relied mainly on Dr Thieberger’s evidence. They said:

‘Dr Thieberger has over twenty years experience as a linguist in Australia and overseas. He has extensive experience and expertise in relation to Western Australian Aboriginal languages, and in particular the Noongar language. None of the respondents elected to call any expert linguistic evidence to challenge the evidence of Dr Thieberger.

In preparing his report for this proceeding, Dr Thieberger examined early historic sources from the southwest, including word lists and some grammar. He compared the early word lists and grammar with each other and with a current word list compiled by a linguist in the mid-1990s from conversations and study with a Noongar man, the late Cliff Humphries.

In Dr Thieberger's opinion, despite there being a number of names for dialects in the southwest, there is at the same time a recognition by most observers, from the earliest records to the present, that there is a homogeneity in the region that is not shared with neighbouring languages. Furthermore, word lists which Dr Thieberger studied and compared, evidenced both the cohesion of the bloc of languages known as "Noongar" and their continuity over time.’

264	Counsel then set out Dr Thieberger’s conclusions, reproduced at para 205 above.

(f) Submissions for respondents

265	In their closing submissions, counsel for the State drew attention to comments by both Moore and Salvado about similarities between the language of the south-west and that used elsewhere in Australia. Counsel said:

‘Thus none of the early observers identified language as a means of distinguishing the Aboriginal people of the south-west from other Aboriginal groups.’

266

After referring to evidence about dialects, counsel said the State accepted ‘[t]he fact of similarity of languages or dialects in the south-west prior to sovereignty’; however, they emphasised Dr Thieberger’s evidence that all these languages or dialects ‘are part of a much broader group of languages known as Pama Nyungan, which covers almost all of Australia’.

267

Counsel put some detailed submissions about Dr Thieberger’s evidence. I need not repeat that detail. However, I should say that counsel are incorrect in claiming that Dr Thieberger ‘agreed that the use of the single descriptive term "Noongar" to describe the various languages or dialects of the south-west region is a recent phenomenon’. At the transcript reference cited by counsel (pp 250-251), Mr Ranson was asking Dr Thieberger about Douglas’ work. This evidence was given:

‘MR RANSON: Is that work that he did and those conclusions broadly speaking the beginning of the period in which the use of that term Noongar as a settled and agreed collective description of those languages was established?

DR THIEBERGER: I couldn’t say; I don’t – I haven’t done a history of the use of the term Noongar I’m afraid.’

Mr Ranson did not pursue the matter. As indicated at para 209 above, Dr Thieberger did agree that the collective name ‘Noongar’ had only been used by linguists, ‘in a technical linguistic sense’, since the 1960s and 1970s. However, that says nothing about popular use, including within the Aboriginal community itself. As we have seen, some of the Aboriginal witnesses spoke of learning ‘Noongar’ as children many decades before the 1960s and 1970s.

268	Counsel for the State ended this portion of their submissions with the following paragraph:

‘Finally, Dr Thieberger accepted that, as a linguist, his contribution to the Court’s inquiry into the issues before it in a native title case must be a modest one. He said that there is no necessary link between languages or dialects and the political, social or economic condition of the speakers of those languages or dialects. And as a result he conceded that he could offer no opinion about social, political or landholding groupings in the south-west. He noted, however, that the various dialect differences he (and Tindale and Dixon) had identified have been used as a means of social identification in the south-west. (Citations omitted)

269	This paragraph is not entirely accurate. It would not have been appropriate for Mr Ranson to invite Dr Thieberger to assess the significance of his contribution to the Court’s inquiry; nor did he do this. So Dr Thieberger did not accept that his contribution was a modest one; this must be Mr Ranson’s assessment. However, Dr Thieberger did make the other concessions set out in the paragraph.
270	In her closing submissions, counsel for the Commonwealth made three points about language at the date of settlement:

(a) ‘all of the Aboriginal persons connected with the SNC claim area at sovereignty would have had knowledge of and spoken one or more of the languages or dialects which are now collectively described as "Noongar"’;
(b) ‘the existence of a language or dialects of that language does not necessarily say anything about the existence of a society associated with the area where the language or its various dialects are spoken’; ‘there is no necessary link between linguistic affiliations and social or political groupings’; and
(c) ‘dialect differences have been used in the south west of Western Australia as a means of social identification of groups’.

271	Counsel put the issue in this way:

‘What the Court is concerned to find is whether there existed at sovereignty an ethnographically and culturally separate group. An indication of "separateness" is the assertion of group and territorial independence from other groups, albeit that the groups may come together for social or ceremonial interactions. Whether a group identifies with the same or different languages or dialects of a language may be a relevant factor (amongst others) but it is not determinative.’

272	The submission, on this matter, made by counsel for WAFIC was relatively brief. Counsel said:

‘Dialects can form the basis of social differentiation. WAFIC submits that it is significant that the dialects identified by Dr Theiberger are coincident with groups identified by Tindale. It is submitted that if native title is established, this coincidence of dialects and identified groups is consistent with the submission of WAFIC that native title is held by a group or groups smaller than the whole of the applicant group.

... it is WAFIC’s submissions that:

(a) it is not material per se whether there are 10 or 12 or 13 different groups;

(b) it is material that:

(i) there was (and, if native title is established, is) more than one group within the applicant group; and

(ii) such dialectically differentiated groups are relevantly connected to differentially defined geo-spacial areas.

In summary, it is WAFIC’s submission that if native title is established, the linguistic evidence is consistent with it being held by the dialectical groups identified by Dr Theiberger (and Tindale).’

(g) Conclusions

273	I accept the submission, made on behalf of various respondents, that people who all speak a particular language are not necessarily members of the same society or community. The converse is also true; a single society may transcend language differences: see Neowarra at [393].
274	It follows that a conclusion as to whether or not there was a common language throughout the claim area at date of settlement will not itself resolve the issue between the parties as to the identity of the relevant community, for the purposes of s 223(1) of the Act. However, as is conceded by each of the respondents’ counsel who have addressed this issue, the conclusion is a significant factor, to be taken into account with other matters, in identifying the relevant 1829 community.
275	Among those early writers who dealt with the matter, the overwhelming view was that, at date of settlement, the people of south-west Western Australia shared a common language, although with regional variations. The material may be summarised as follows:

(i) Moore’s 1842 vocabulary (para 151 above) listed the meaning of ‘Yung-ar’ as ‘People, The name by which they designate themselves’. He then referred to ‘3,000 aborigines frequenting the located parts of the colony’; implying that his meaning applied in all locations. In his 1841 article (para 173 above), Moore stated that, in all parts of the colony which he had visited, from 100 miles north of Perth to King George’s Sound, the ‘language is radically the same, though spoken with a variety of dialects, gradually blending into one another’. [A point 100 miles north of Perth would be more than two-thirds of the distance between Perth and the northern boundary of the claim area.]
(ii) Lyon (para 156 above) noted some words ‘that are precisely the same here and at King George’s Sound’; though others were not.
(iii) Armstrong wrote about the language of the tribes of the plain having been derived from ‘the language of the mountain tribes’. He said, ‘the mountain dialect is still invariably preferred and used for all purposes of a public nature or general interest, such as their formal public discussions of subjects of their quarrels between tribe and tribe, and their chanted narratives of legends, battles and hunting matches’: see para 158. In other words, the mountain dialect was the lingua franca understood by all ‘tribes’. Given Armstrong’s reported fluency in several south-west Aboriginal dialects, his comments seem to be particularly important.
(iv) Grey, Salvado and Hassell (paras 195, 174 and 254 above respectively) all observed the similarity of the language spoken in widely-separated parts of the south-west.
(v) Bates said ‘the Bibbulmun Nation throughout its whole area had but one fundamental language’ (para 183 above).

276	As appears from the Aboriginal evidence I have summarised, the oral tradition of south-west Aborigines is that there is, and always has been, only one indigenous language in the south-west; that language is called ‘Noongar’ and is still spoken by many of them.
277	Dr Thieberger is the only witness in these cases who has specialist linguistic qualifications. He has had extensive experience in relation to Aboriginal languages, including a long association with south-west Western Australia. Dr Thieberger expressed a firm opinion that, in 1829, there existed a common language, although with dialectical differences, throughout the claim area. He expounded his reasons. Although Dr Thieberger was cross-examined at length, his opinion was neither challenged nor explicitly contradicted by other evidence. I thought him to be an impressive witness: knowledgeable, careful and fair. To the extent that Dr Brunton offered conflicting views, about linguistic matters, I have no hesitation in preferring the opinions of Dr Thieberger. His training and practical experience in these matters vastly exceeds that of Dr Brunton.
278	An important aspect of Dr Thieberger’s evidence was his explanation of his reasons for describing the regional variations in language as dialects, rather than different languages; and why he expected these variations would not have precluded communication between people living in different parts of the claim area. The reasonableness of that expectation is borne out by the observations of Grey, Armstrong and Moore, made soon after settlement, and, somewhat later, of Salvado, Hassell and Bates. Dr Brunton mentioned some writers who apparently expressed a contrary view. However, their writings are not in evidence; nor do I know the sources or extent of their information.
279	Both Moore and Salvado noted a degree of commonality between Noongar words and those used by Aborigines in other parts of Australia, even as far away as the east coast. Dr Thieberger conceded there was some commonality. He accepted this was explained by the common ancestry of all (or virtually all) Australian Aboriginal languages. However, although questions of degree arise, Dr Thieberger gave detailed and persuasive reasons for his conclusion that the language spoken inside the claim area was a language different to that spoken immediately outside its boundaries. Languages which have a common ancestry, and share some vocabulary, may nonetheless properly be regarded as different languages, spoken by people who see themselves as members of different communities. The Italian, Spanish and French languages, which are all substantially derived from Latin and share some vocabulary, illustrate the point.
280	I conclude that the evidence about language in the claim area provides significant, although not decisive, support for the Applicants’ claim that, in 1829, there existed a single community throughout the claim area.

(v) Laws and customs concerning land
(a) The early writings

281	The early writings provide a deal of information about the ‘ownership’ and use of land, in the south-west at about the date of settlement. I take from them the following items of information:

(i) Nowhere was it the rule that all members of a large community (whatever it was) had equal rights over all land;
(ii) On the contrary, particular areas of land (although relatively large – as might be expected in a hunter/gatherer society) were ‘owned’ by particular small groups of people, whose members inherited their right of ‘ownership’;
(iii) Each small group of people comprised several nuclear family units; some members of different units being ordinarily related by blood or marriage;
(iv) Some, but not all, the early writers used the word ‘tribes’ to refer to these small groups. Whether or not they did so, the early writers agreed that, although the groups were led by a ‘titular custodian’ (Dr Host), this person was not a ‘chief’, in the sense of having a right of command: see paras 125, 136, 141, 153, 161 and 173 above;
(v) The land-‘owning’ groups enjoyed some exclusive rights over their land, for example, in relation to burning. However, generally, their rights were not exclusive of all others. By virtue of laws or customs acknowledged by them and operating beyond their own ranks, they had to submit to periodic intrusions by particular people or on particular occasions: see paras 137, 138 and 143. The groups also recognised obligations, which were probably reciprocated, to share any abundant produce of their land.

282	In speaking about Nind’s comment (see para 143 above), that Aborigines were ‘very jealous as to encroachments on their property’, Dr Palmer addressed a seeming paradox, from a European perspective. At para 3.28, he said:

‘From an anthropological point of view, in my opinion, what Nind appears to be indicating is that "families" have what could be called home areas ("locations" and "property") but were free to use other areas as well. Thus home areas are not exclusively held but are shared with others, "so that it might be considered as partly belonging to the tribe". However, for firing the country, the "owner of the ground" should be present. I am aware from my knowledge as an anthropologist that in an area where food is limited, or may be so in some seasons, the ability to move freely across different areas would have been an important feature of the traditional economy. Nind had a difficulty in reconciling his notions of exclusive private property with the observations that areas of land were shared. Such preconceptions are not helpful to an anthropological analysis.’ (Citations omitted)

283

I take from this comment that it is unhelpful – and perhaps potentially misleading – to use the word ‘ownership’ to refer to the land rights held by particular individuals or ‘tribes’, at date of settlement. Although individuals obtained by inheritance their right to occupy and use particular land, this was not ‘ownership’ in the European sense. The rights were held in common with other members of the ‘tribe’, and were subject to obligations towards others outside the ‘tribe’. They were not transferable by sale or lease.

284

Notwithstanding Dr Palmer’s caution, it seems to me the early writings about land provide assistance in determining whether there was a single Noongar society at date of settlement; although perhaps mostly in a negative way. A particularly striking feature of the early writings is the consistency of the accounts of land laws and customs written by people who lived as far apart as King George’s Sound, Perth and New Norcia.

(b) Aboriginal evidence about land

285	At a later stage, I will review the evidence of the Aboriginal witnesses in these cases concerning their present connection to the land. For present purposes, it is sufficient to note three points:

(i) although there was some inconsistency between the witnesses as to the details of the descent rules, the pattern was broadly the same; there was no regional or geographic variation in the evidence;
(ii) all witnesses claimed special rights over particular areas of country, variously described as their ‘boodja’ or ‘run’ or ‘country’, including the right to ‘speak for’ that country; and
(iii) all witnesses expected to have access to other land within the claim area. This access was dependent either on some special relationship with that land – for example, it being their mother’s country – or permission being granted. Even if access was available, the person would not think it proper to ‘speak for’ that land.

286	I think this evidence is relevant to the present issue only in that it is consistent throughout the claim area. To the extent that present day culture throws light on the 1829 position, it tends to suggest there were, in 1829, similar land ‘ownership’ rules throughout the claim area.

(c) Dr Palmer’s evidence

287

Dr Palmer reviewed the early writings. He noted Moore’s account of the disputes over succession to Midgegooroo’s country, after the deaths of his sons Yagan and Narral. He saw this as an indication ‘that succession to estates was a part of traditional Noongar law and custom’ and that ‘descent was not the only means by which rights to land were gained or claimed [Narral inherited from his elder brother, Yagan]’. However, Dr Palmer said, ‘Moore’s materials are incomplete and conclusions drawn from his observations should be tentative’.

288

Dr Palmer noted that Lyon described the ‘districts’ held by particular ‘tribal’ leaders. He said:

‘Lyon gives by far the most complete view of what he considered to be a tribal organisation, where "chiefs" ruled discrete named territories, which Green found convenient to map ... However, the lack of any ethnographic detail makes it impossible to reconstruct the social, cultural, economic and ritual inter-relationships that may have existed between these groups and how rights were realised in relation to areas of land in practice.’ (Citations omitted)

289	Dr Palmer also referred to Armstrong’s comment about land ownership and inheritance: see para 160 above. He said:

‘Armstrong, also writing of the Perth area, states that certain individuals held areas of land and defined them with some exactness. He is less clear about how the system worked in practice, although he does allow that people moved about over other people’s land. Overall, however, he appears to take the view that people mostly lived on their own country. His account of the areas of residential groups is not altogether consistent with that provided by Lyon.

Armstrong noted that trespass was a punishable act.’

290

In his report, Dr Palmer referred to information, collected by both Armstrong and Symmons, about the people in Yellowgonga’s group. Dr Palmer was able to identify a blood or marriage relationship between Yellowgonga and many, but not all, of these people. In particular, he noted ‘the close relationships that obtained between members of neighbouring groups (Yellowgonga and Midgegooroo). Dr Palmer said:

‘This residential arrangement probably reflects the close relationships that obtained between members of neighbouring groups ... It further strengthens the view that residential groups were closely allied and had interchangeability of membership, depending on circumstance and the realisation of kinship, marriage and other alliances that were the basis of the relationships that underpinned group cohesiveness. In this case, the deaths of Midgegooroo and perhaps Yagan (his son) may well have been a cause for the realisation of these links in practice.’

291	Dr Palmer went on:

‘From the records we can also learn that the members of Yellowgonga’s group represented several different territorial areas. Yellowgonga himself is recorded as regarding the area north of the Swan River as his own ... His wife was Yangan and Yangan’s brother had the country round Lake Monger. Nignana and his brothers belonged to the area round Rockingham and probably south to the River Murray. Willum, Midgegooroo’s son was associated with the land south of the Swan river, but was also of ‘Monday’s tribe’ (between the Canning and the Swan) as well as ‘the first tribe north’. A man called Barbang may have been associated with land south of York, while Dutomerra was also described as a part of Wiap’s tribe, an area in the hills to the east of Perth.

In my view the lessons that can be learnt from Armstrong’s material are that ‘family’ groups were founded upon a complex web of relationships and alliances. These brought people together in acceptance of bonds of kinship, affinal relations and other relationship alliances forged through social and ritual processes. Yellowgonga’s group had a nuclear family at its core, but included individuals with affinal relations and, as far as can be ascertained from the data, probably others who were quite distantly related or who saw their relationships in classificatory or social terms. Within this group were representatives of a number of different geographic interests. In my view, the presence of these different territorial interests and the bonds that bound them together as a living or residential group, probably had an affect on how the members of the group together accessed and exploited the areas that comprised their traditional range.’ (Citations omitted)

292	Dr Palmer offered a caution about the available data. He said:

‘The accounts here reviewed relating to territorial affiliations are incomplete and, taken together, lack consistency ... In my view it would be an error to attempt to map "tribes" or "chiefs" on to country, using these data. My reasons for holding this view are as follows. In the accounts examined here the extent of an individual’s country is sometimes made by reference to imprecise geographical features, or is expressed in the vaguest of terms in relation to some indeterminate direction. It is also unclear, in my view, whether rights to the country (however defined) are being ascribed to one individual or to many. Finally, again in my view, mapping territory hides the complexity of the relationships between individuals and the implications that these relationships might have had for the exercise of rights to country in practice.’

293	In discussing Barker’s journal, Dr Palmer made a comment, which I think is justified by the relevant entries, that Barker’s account ‘reflects a system where numbers of people used common country in small bands within a recognised range’.
294	Dr Palmer went on:

‘Barker also tells us how land changed hands. If there were sons, portions of an area of country would be set out for each son at birth, but a son does ‘not enjoy possession until grown up’. A younger brother appears to have taken over the role of a deceased older brother as principal representative for an area of country, but this may have also depended upon the age (and assertiveness) of a son to press his case. He also wrote that in the event that there were no males in a family, ‘his next neighbours have his ground’. Significantly, then, Barker takes the view that there was a normative system that accommodated death to ensure continuity of responsibility of ownership of estates.’ (Citations omitted)

295	Dr Palmer quoted several mid to late 19th century writers who gave accounts of land organisation consistent with those he had extracted from the writings of Nind and Barker. I need not set out the quoted extracts. As I do not have the original writings, I cannot consider them in context; so I do not put independent weight upon them.
296	Dr Palmer made a comment about Bates’ work which is important, for present purposes. He said:

‘In her discussion of local organisation Bates also indicates that there were numerous dialect groups within the Bibulmun nation and that these dialect groups were local groups. My view is that it is unlikely that each ‘local group’ (however understood) could comprise a distinct dialect group as such a group would be too small to have unique linguistic integrity. What Bates may have meant is illuminated to some extent by her records set out elsewhere. On a map Bates notes the dialect groups as she understood them. These would appear to be much larger than localised family groups of the sort that Bates appears to be describing as the minimal land holding unit of the society.’ (Citations omitted)

297	In his report, Dr Palmer gave the following summary of his ‘understanding, as an anthropologist, of the main points which emerge from the early accounts of Aboriginal relationships to land within the claim area’:

‘3.57 Individuals were regarded (and apparently regarded themselves) as having one area of country, however defined and bounded, that was of particular importance and significance to them. They had undisputed rights to this area of land which were of the nature of an ownership in real property. This is evident from all the writers reviewed above, and particularly from Moore, Lyon and Armstrong for the Perth area, and Nind, Barker and Collie for the Albany area. Although it is something that the early writers remain silent upon, in my opinion, based upon my study, training and experience as an anthropologist, I consider this attachment was articulated through spiritual referents, as this was and is the basis of traditional Aboriginal relationships to land throughout Australia.

3.58 The early writers also record that land passed through the family, implying or stating that descent was an important means of gaining rights to country. The extent to which a person’s affiliation with country was concomitant with exclusive rights is unclear. The accounts, as provided here, are not consistent. However, by looking at one particular residence group, the details of which we have from the early record, it is possible, using my knowledge as an anthropologist, to attempt a reconstruction of how things may have worked in practice. Yellowgonga’s group comprised members of a number of different areas, who apparently were free to use the country in which they resided. There is evidence from all three writers from the Albany region (Nind, Barker and Collie) that rights to a ‘natal’ area’ (Collie’s term) were shared with others. A person’s affiliations to country were expressed in relation to a complex web of rights that might be realised in relation to several areas of country by reference to kinship ties or other relationships.

... the rights to the resources of a number of areas, beyond that of an individual’s patri-group, appear to have been exercised freely and the degree to which members of the country group (or patri-group) exercised exclusive rights to their country is, to my mind, much in question. In summary, then, individuals were recognised as ‘belonging to’ a certain area (perhaps as a result of a spiritual connection or by reference to descent). Their rights to this area were burdened by rights of others who were generally known to those who belonged to the country in question. Those who were not known were treated with caution as potential trespassers. For most activities those with common rights did not need to ask each other in order to take resources. For the Albany region, at least, it would appear to have been correct protocol to ask permission before undertaking other activity such as firing. However, while desirable, there were cases, as instanced here, where individuals did not consider that it was always necessary to ask first.

3.60 The Bates’s data is not easy to reconcile, as it shows some inconsistency and, in my view, her final position as expressed in her proposed book The Native Tribes of Western Australia did not altogether reflect the complexity of her field data. However, several general conclusions can be drawn from these data. First, the Noongar society that Bates observed appears from her data to be one that allowed quite extensive use of country by family groups, while usually associating people with particular home areas. Second, land use and rights to it were not exclusively held, but were shared between several family groups and these family groups were typically related in some way, including in prior generations. Third, rights to land were gained through descent, although Bates provides very few details on this principle. However, it is evident from her example of Yabburgurt that people gained rights to their mother’s country, their father’s country as well as that of their spouse. Finally, Bates recognised that areas of land could become ‘ownerless’ at certain times, but she does not explain the way by which such land was absorbed or taken over by other groups.’ (Citations omitted)

298	Dr Palmer expressed the opinion that the term ‘tribe’, used by some of the early writers, was not ‘appropriate to the local circumstances observed in places like Perth and Albany’. He said:

‘The early writers observed groups of people moving about the land who were understood to have a particular interest in what was usually a named area of country. The composition of these groups is reasonably clear from the early literature and can be best described as an extended family group. By this I mean that it typically might have included a nuclear family (a man, his wife or wives) and their children, as well as, perhaps, siblings of the man, his spouses and children, as well as members of his first ascending generation. So, generally speaking, members had either consanguineal or affinal ties but could also include those who had other alliances which were not necessarily based on consanguineal ties. Such groups are well documented in the anthropological literature ... and are generally called ‘bands’ in the anthropological literature, or sometimes "hordes". Keen also calls them "residence groups" and this is the term that I will use in this report. At least one of the early writers [Nind] accepts that the groups observed using the land were extended family units. There is also agreement between later commentators for this region on this point.

The early writers reviewed here were then neither consistent nor clear as to the social unit that held rights to land. There was a tendency to assume that the members of the residential group or band, or a significant person within it, owned land. As the band was understood to be a "tribe", the land was easily understood to be the territory of the ‘tribe’. Moreover, the relationship between different social groups and their use and rights to different areas was not explored. In her accounts, Bates’s focus was on individuals. However, she did record important data concerning the rights to use country that were legitimated by reference to inter-group relationships.’ (Citations omitted)

299

Dr Palmer referred to a debate that had occurred, between anthropologists, as to the legitimacy of a distinction made by Radcliffe-Brown between the ‘horde’ (a patrilineal descent group) and the ‘clan’, which Radcliffe-Brown thought was made up of two or more ‘hordes’. After mentioning several items of anthropological literature, Dr Palmer concluded:

‘Important articles by R.M. Berndt (1959) and W.E.H. Stanner (1965a) set out what was to become anthropological orthodoxy with respect to a distinction between the band, as the land using group (that is, Radcliffe-Brown’s "clan"), and the local group, as the land-owning group (Radcliffe-Brown’s "horde"). Stanner also established the relationship between a local group’s home territory (Stanner termed this the "estate") and the country ("range") its members used, along with others, as members of bands ... Local groups were exogamous (that is, members did not marry each other) which was a consequence in part at least of the fact that membership was through descent, so people would not be expected to marry members of their own family. The defining feature of the local group is its members’ common affiliation to an area of country. ... I will then call this unit a "country group" in this report.’

300

Dr Palmer also mentioned another anthropological debate, as to the means by which people could legitimate rights to country by reference to descent: ‘whether patrifiliation was the only or preferred means of reckoning descent or whether matrifililation was also recognised in a cognatic system’. Dr Palmer thought it impossible to give a conclusive answer to that question. He said:

‘While issues remain unresolved, in my opinion it is evident that there was most probably a degree of regional variation to be found across the continent. It would be hard to conclude from the above debate that one model will fit all. Second, for hunter gatherer societies, there is a need for flexibility both as a result of ecological considerations and because of the likely exercise of personal choice. Thus it is unlikely that pre-contact systems were as rigid and fixed as may have been supposed. Finally, it is clear that rights to country, their exercise and legitimation were a complex matter that required the exercise of a range of social relationships rather than reliance on a singular principle.

Amongst hunter and gatherers, residence groups are likely to change over time. This is both a result of the exigencies of living as well as of social interaction. Economic activities will require degrees of co-operation while food availability or scarcity may invite or require that extended family groups split up either for shorter or longer periods. Moreover, tensions between individuals, fights and quarrels are also likely causes for separation and fusion, while strong friendship may bring together members of different families. While the degree to which band membership fluctuated may have depended upon environmental consideration ... this alone is unlikely to account for all changes in residence group composition. It did, no doubt, depend upon a variety of factors, personal, environmental and social. Nor do I think, with respect to the Noongar materials, that inquiry after the relative permanence or impermanence of residence groups will be particularly fruitful, given the poor quality of the early accounts. Residence groups were labile and as such could not constitute a fixed enough entity to constitute a land owning body. As residence group membership fluctuates, the distribution of members of country groups across the countryside will be reflective of these changes. This both facilitates and is facilitated by a system wherein a person may gain rights in more than one area of country. This would appear to point to a system wherein rights to country were exercised and enjoyed by sets of people comprising a number of different country groups having cultural, social and filiational commonalities.

In my view it is an error to consider the land-holding system, as it is reported, as comprising a series of hermetic and self-contained land units (estates) over which individuals exercised exclusive rights. In my view this does not reflect the traditional situation as it has been reported by early observers discussed here and as it was most probably to have been found, both for the Perth and Albany regions and elsewhere in the south west of WA.’

301	Dr Palmer related these conclusions to the early writings about the south-west:

‘The accounts provided by early settlers and writers in Western Australia can be better understood in the light of these comments and conclusions. First, ... it is my opinion that those early observers, when using the term "tribe" were probably writing of what would be now best termed, a band or residence group. Second, the residence group was not itself a land owning group, but was comprised of those who, as members of a country group did exercise proprietorial rights to country, which may have been the country on which they were at the time observed, or it may not have been. Third, members of a residence group, if comprised of more than one country group ... would, between them, have rights to two or more areas of country. Fourth, given that the Noongar people recognised alliances through kin and ritual, it is likely that some rights to country could also be gained through the development or forging of social relationships. Finally, if the system is a relatively flexible one, as some writers have suggested for other areas of Australia, rights to country may be gained by means other than descent.’

302

During the course of his cross-examination of Dr Palmer, Mr Wright asked many questions about late-20th century writings. I found that cross-examination unhelpful. As I mostly did not have a copy of the particular writing, it was often unclear to me what the particular writer was really saying. Even more often, it was unclear what research he or she had undertaken. Nothing in this cross-examination caused Dr Palmer to depart from his earlier-expressed opinions or affected my confidence in them.

303

Mr Wright took Dr Palmer to the issue of patrilineal/matrilineal descent in the Perth Metropolitan Area. Dr Palmer accepted the possibility that ‘there was a strong bias towards patrilineal descent in the Perth Metro area at sovereignty’. However, Dr Palmer pointed out that Grey had written about people ‘gaining rights in mother’s country’ and that Bates ‘makes it quite clear that people got rights in both their father’s and their mother’s country’. His evidence went on:

‘I don't think Bates was saying that people didn't get country through patri-filiation, but Bates certainly also says that people got country through links with their father on the one hand and with their mother's country on the other. So she wasn't talking about mixed marriages in this case. ... I don't want to be ... dogmatic about these early writers, and I - you know, I understand this is an important issue for you.

MR WRIGHT: Yes. And just to try and pin you down ... given those qualifications you've just given us, would you agree that ... there was a strong patrilineal bias in the Perth Metro area at sovereignty; that that's the preferable view on the totality of the evidence?

DR PALMER: Well, I think the best I can do for you is to say there may have been, but that the system as it - most probably as it operated always allowed for matrifiliates to claim rights to country as well. I - I don't think that the evidence is - particularly given the Bates material and - and the other things that I've said, that it's - that it's likely that matrifiliates were always ruled out of the ... equation.’

304

In the course of a discussion with Mr Wright about ‘contingent’ or ‘secondary’ rights (or ‘secondary connection’, as Dr Brunton preferred to say) – that is, rights only exercisable by the leave of the primary right-holder – Dr Palmer pointed out the limitations of the early writings. The exchange was as follows:

‘MR WRIGHT: Yes. Okay. So can I then clarify that, based on what we know from the early writers, which we - you've said is - is not very detailed, we seem to have country groups who have rights through descent, and then we have other people who may have what we've called contingent rights.

DR PALMER: No, but, look, the early literature - they don’t even get it right in terms of who - who had rights in country. They call them "tribes", which were - Dr Brunton and I agree on this - that were probably "bands" and it was understood that it was the bands that probably owned the country, which indeed was a mistake that some early anthropologists made. I mean, ... the line of inquiry that would rely extensively on the early accounts as pieces of anthropological analysis in relation to local organisation provides such enormous difficulties that we can only really come up with one or two sort of main principles, if you like.

MR WRIGHT: And those main principles are?

DR PALMER: Well, one - one is descent.

MR WRIGHT: Yes.

DR PALMER: It - it seems that descent was important. And the other is that - that people recognise that certain areas of their country, either more or less bounded, were important to them and that they exercised some rights in them.’

305	During Ms Webb’s cross-examination of Dr Palmer, she asked him to state ‘the classic landholding system in the south west of Western Australia’. Dr Palmer responded:

‘it's difficult to know, but from the information of the early writers, and bearing in mind what I've said about their preconceptions and their prejudices, my view is that ... people obtained rights to country, certainly through descent - this is given that they ... recognised themselves as belonging to a particular group of people who belonged in the country, in this instance Noongar. I think there is some evidence that there may have been a patrilineal bias ...

But what I do think - and this is - I think that far, Dr Brunton and I would be in agreement. What I think is that it didn't stop there, that there were rights that were also obtainable in land and were ... part of the normative system that were obtained by reference to other things other than the country of father, and that may have included birth, and it certainly included rights to mother's country.’

306	Ms Webb asked Dr Palmer about cognation (relationship by birth) as a principle of group recruitment. Dr Palmer said cognation requires choice and, theoretically at least, the available choices would double with each generation. However, he thought descent was not the only element:

‘the two which probably spring to mind are perhaps related, or maybe three, but certainly is birth, residence and familiarity, and I think those three form a kind of a set sometimes. So, in my report when I discuss about the exercise of choice what I’m trying to do is to understand how in a cognatic system these, if you like, discriminations are made. So that it’s not just a question of somebody, as it’s been put to me, choosing an apical ancestor and then sort of working it out. I think that’s putting it the wrong way. There have to be a number of qualifications in that person’s life experience which, as it were, leads them back to that ancestor which, by descent, then provides, if you like, the final legitimation for the assertion of rights to a particular area of country.’

307	Dr Palmer was unhappy about Ms Webb’s use of the word ‘negotiation’, in relation to an individual’s land claim being accepted; he preferred to speak of a ‘social process’. Ms Webb asked him to explain that term. He replied:

‘Well, your Honour, the issue that we’re trying to deal with, or that I was trying to deal with here is this issue of to some extent of choice which is why I think we’ve arrived here, and I give an example as an anthropologist like examples, and it relates, ... to a child. So, you know, in the normative system as operating, the child has, say, rights to the mother’s or father’s country but those – those rights are mediated by a number of other factors which are social factors. The child is young, the child has no knowledge, the child in the authority structure is considered to be ... not within that structured system as of yet and so on.

So, the situation with the child is that it has potential rights to country but the realisation of those rights are going to depend on a lot of other things which may happen subsequently to that child. And if they don’t happen, then the child may not be pushing rights as an adult in that country. They may be pushing rights in another country. And I think that’s true of a number of instances, and that’s anthropologically how we overcome this problem in a cognatic system of how – how you can obtain a focus of rights on particular countries or areas.’

(d) Dr Brunton’s evidence

308

In his report, Dr Brunton re-affirmed views he had expressed in a report written in 2003, and which was reproduced as sections 2.2-2.4 of his present report. In section 2.2, Dr Brunton had noted the references to landholding made by various early writers and opined ‘that the "tribes" identified by early observers were bands – whose membership would fluctuate according to various circumstances – rather than land holding groups’. He had said some individuals appeared ‘to have had different band affiliations at different times’ and there were some ‘individuals who appear to have been engaged in joint activities with members of other bands – other than ritual or ceremonial activities’ which ‘could normally be expected to bring together members of different bands’.

309

Dr Brunton also said:

‘Whatever sense of common identity may have existed at the south west regional level as a result of cultural and linguistic similarities, or at the level of Tindale’s ‘Whadjuk’ tribe, there is no evidence to indicate that such higher level groups or categories can be seen as land holding units in any way ... Indeed, the frequency with which the early observers stressed the ‘family’ or individual nature of land ownership suggests that, notwithstanding their great limitations by the standards of contemporary research, they did attempt to ascertain whether any ownership rights were held by higher level groups qua groups. Certainly, individuals who were not members of the estate group may also have held secondary connections to an estate – or specific sites within an estate – in the vicinity of their own estates, as a result of having common non-patrilineal ancestry, or sharing a Dreaming track, or a common totem, or having been born near a site in this estate, or some other reason. I referred earlier to information from Radcliffe-Brown and Bates relating to birth place and totems, and it is quite possible that they were identifying one of the mechanisms by which secondary connections with an estate were established. Unfortunately, the information available does not allow us to draw more specific conclusions.’

310	Dr Brunton also referred to ‘secondary connections’ which, he said, ‘would also have provided one of the paths through which usufructuary rights to estates would have been granted’. He said:

‘Usufructuary rights of one kind or another would have been granted on other grounds as well, such as through marriage, or through the invitations which groups issued to neighbours to share in seasonal or windfall resources. There is no evidence to suggest that these usufructuary rights would only be granted to individuals who shared a membership in a higher level group.’

311

Dr Brunton used the term ‘estate’ to ‘refer to the primary unit of land tenure (although ... not necessarily the irreducible unit) comprising a tract of land over which a group has a set of rights and duties which most closely correspond to Western notions of ownership’. He thought that, at settlement, ‘the Perth Metro and Bodney claim areas would have contained a larger number of estates than the listings of "tribal" territories by Armstrong and Lyon might suggest’ – he thought more than 16. He said:

‘So bands would have been made up of men belonging to more than one estate group (as is also apparent from Armstrong’s and Symmons’ data), and the range of these bands would have encompassed the country which included its members’ estates, as well as the estates of others with whom they had appropriate relationships. As I have already indicated ... I think that bands would have been reasonably flexible and permeable groupings.’

312	Dr Brunton expressed agreement with para 3.57 of Dr Palmers report (para 297 above) but disputed his following conclusions. He stated his reason:

‘I think his reasoning leading to these conclusions tends to conflate a number of matters that need to be distinguished – relationships to kin with rights in land; proprietary or ownership rights with usufructuary rights ... and "laws" or elements of a "normative system" with the absence of transgressions against these laws.’ (Citation omitted)

313	In relation to the first matter, Dr Brunton said:

‘Stating that individuals had certain rights in the country of given relatives may not mean that they had inviolable or automatic rights, but rather that such rights depended on the continuation of certain kinds of relationships between the "owners" of the country concerned and particular kin. This notion is captured by Peter Sutton’s recent distinction between "core" rights to land and "contingent" rights to land – thus he states that "the right to use someone else’s country is usually contingent, for example, on the nature and state of relationships with those other people". He argues that despite the difficulties that might be faced in making such a distinction in specific instances, "there is much ethnographic evidence to suggest it is a common feature of Aboriginal land relationships".’ (Footnotes omitted)

314	Dr Brunton thought it was always necessary for Aborigines in the south-west to obtain permission to access others’ territories. He said:

‘The observations of the early settlers and the inconsistencies in their accounts ... are not difficult to reconcile if we posit an ideal of "exclusive rights" to estates – exclusive in the sense that non-landholders would have required permission through various kinds of direct and indirect mechanisms to access land and resources – operating in conjunction with the commitment to what Les Hiatt calls an "ethic of generosity", which he sees as very widespread in Aboriginal societies. While not indiscriminate in terms of either people or resources, the "ethic of generosity" means that "access and benefit are normally accorded as a matter of course to a wide network of tribesmen over and above the actual owners". This conjunction would have created a situation where permission was rarely denied, at least if the relations between the land holder and the person or group requesting permission were in a reasonably amicable state.’ (Footnotes omitted)

315	Dr Brunton raised the possibility that, in areas of the south west ‘where people took their moiety or semi-moiety membership from their father’, ‘particular estates or perhaps even larger tracts of country were identified with a particular moiety and/or semi-moiety’. He went on:

‘Noting Nind’s observation about the differential geographical distribution of semi-moiety members, Keen suggests that "it may be that people identified country by semi-moiety; this is consistent (if semi-moieties were patrifilial) with the evidence of the patrilineal inheritance of land at King George Sound" ...

Such an identification between country and social categories is found in other parts of Aboriginal Australia, including Western Australia, and acts as a constraint on succession, requiring those taking over the land of extinct groups to be members of the same category as the previous owners. Keen writes "according to Collie, if patrilineal succession failed, a neighbouring group succeeded to the country; it may have been of the same semi-moiety". If this was indeed the case, then the processes of succession in these areas would have differed from those where moiety or semi-moiety membership was taken from the mother, such as on the west coast, where there would have been no consistent identification between land and social category, and therefore no such constraint on succession. In other words, in one significant aspect – particularly significant given that the rate of extinction of estate groups and therefore the conditions under which succession became necessary would have been considerably higher after sovereignty than before – there may have been a major difference between the land tenure systems within the area now comprising the Single Noongar claim.’ (Footnotes omitted)

316

Dr Brunton was critical of the sparsity of Dr Palmer’s references to recent anthropological writings about social and cultural continuity in south-west Western Australia. Dr Brunton proceeded, in Section 5 of his report, to discuss these writings at some length. However, many of these writings are not before me, and I have little or no information about the factual assumptions upon which most of them were based. Consequently, I obtain no benefit from Section 5 of Dr Brunton’s report. The opinion of an expert assists a court only where two conditions are fulfilled: first, the court is appraised of the facts assumed by the expert in reaching that opinion; and, second, the truth of those facts is either proved by evidence or conceded by all other parties.

317

During the course of questioning by Mr Bodney, Dr Brunton declined to accept that the landholding units at date of settlement were moiety groups, such as the Ballarruk and Didjarruk upon whom Mr Bodney’s claims depend. Mr Bodney put to Dr Brunton that, at settlement, ‘in this district of the Wadjuk territory you had these two groups, two Aboriginal societies (Ballarruk and Didjarruk)’. Dr Brunton responded:

‘I find it difficult to accept your statement there, Mr Bodney. I don’t believe that that would have been the case at sovereignty. I think that you had members of the four semi-moieties, the Ballarruk, the Ngarnook, the Tondarup and the Didjarruk are all within the area that is now said to be the Wadjuk tribe or the Wadjuk group.’

318	Dr Brunton thought there was a practical problem about Mr Bodney’s position:

‘I don’t understand how the system could have worked as it was described by, say, Daisy Bates who spoke to people like Joobaitch and other people who were born, if you like, soon after settlement. I don’t understand how the system could have worked if it operated as you’re suggesting.

It seems to me from what she’s saying given, for instance, that a Ballarruk could marry either a Tondarup or Didjarruk, I don’t see then – and given the fact that membership was then determined through the mother, I don’t see how you could have a situation in the country that you’re identifying as Wadjuk in which you only had members of the one sort of moiety that is Ballarruk and Ngarnook or Ballarruk and Didjarruk as the only land holders. It just – I just don’t see how the system could have worked.’

319	During questioning by Mr David, it became apparent that Dr Brunton saw a different kind of link between the moiety system and landholding:

‘In the area I think from [Jurien] Bay and sort of down to about Augusta, those semi moieties, the identification was taken through the mother. Along the south coast the moieties, and it seems the semi moieties were known, were taken to the father and I’ve tried to suggest in my report, although I must say, you know, I’ve just done so on the basis of a suggestion from Ian Keen and from my knowledge of the situation in other parts of Western Australia, there may then have been a difference in terms of the rules relating to succession to property between the two areas.

In other words, with the patrilineal moieties it may have been a situation that you could only succeed, you could only take over the country if ... an estate group died of people who had the same moiety as you. In the matrilineal areas because the moiety identification would change from generation to generation, that is most unlikely to have been the case.

You see, in the patrilineal areas it is possible that you could have had a localised situation where a particular area of country is always associated with a particular moiety because it’s been transmitted through men and because the land is going through men. And this is certainly the case in other parts of Aboriginal Australia and has been documented.’

320

At an early stage of his cross-examination, Mr Hughston had Dr Brunton confirm that, when he commenced to prepare his 2003 report, which dealt only with the Perth Metropolitan Area, he had looked ‘at the laws and customs of the people encompassing basically the whole of the Single Noongar claim area’. Dr Brunton agreed he had done this. He said it was because it had ‘been apparent to [him] at the time that there were significant relationships, continuities and similarities between the laws and customs for the people of that region which is encompassed by the Single Noongar claim’. The evidence went on:

‘MR HUGHSTON: Okay. Now, it's clear from the way in which you conducted your research, the strategy which you adopted back then, that it was apparent to you that the Aboriginal people who occupied the area more or less encompassed by the Single Noongar claim area at sovereignty, had certain cultural similarities.

DR BRUNTON: Yes.

MR HUGHSTON: Spoke basically the same language.

DR BRUNTON: I'm not sure about that but that was an assumption I - that was my, if you like, initial assumption I - - -

MR HUGHSTON: Yes. And acknowledged and observed fundamentally the same laws and customs.

DR BRUNTON: That was, again, a provisional assumption that had to be tested in the ... literature.

MR HUGHSTON: And did you depart from that provisional assumption anywhere to identify the Perth region as acknowledging and observing laws and customs which were not fundamentally the same as laws and customs observed and acknowledged elsewhere in the south-west.

DR BRUNTON: I can't recall - you know, because it's now one consolidated report, I can't recall whether I did make the points in the earlier report about the difference between the social categories, ... the semi-moieties and moieties. It's possible I did but I can't ... recall whether I did because it would not have been so relevant for the Perth case.

MR HUGHSTON: Dr Brunton, can I suggest to you that nowhere in your 2003 report do you depart, if you like, from the conclusion, the basic conclusion which you say was apparent to you at the start, and that was that there was - because of the considerable degree of linguistic and cultural similarity across the south-western region, that to ascertain the laws and customs of the Perth region you would look at what had been written by the early ethnographers for the whole of the south-west region.

DR BRUNTON: I certainly used that in order to illuminate the Perth material, and I agree - - -


MR HUGHSTON: Because you were of the view then, and I suggest to you you're of the view now, that ... the relevant land-owning group in the whole of the south-west is a group that you've called I think "the estate group"?

DR BRUNTON: Yes.

MR HUGHSTON: And that's a small basically patrilineally recruited group.

DR BRUNTON: Yes.

MR HUGHSTON: And I think Dr Palmer calls that same group "a country group" in his report.

DR BRUNTON: Yes.

MR HUGHSTON: And I think where you differ is that he says that as at sovereignty that patrilineal descent wasn't the only means of recruitment into that group, that there were other pathways for acquiring membership of that group.

DR BRUNTON: That’s one of the points we differ and if I can clarify that.

MR HUGHSTON: Yes.

DR BRUNTON: My point would be that there was, if you like, an ideology or ... norms of patrilineal recruitment such that when other mechanisms came into play, and I don't deny the possibility that they did, that they would be masked, so that the group would appear as ... essentially a patrilineal or patri-group I think you were saying.

MR HUGHSTON: Well, not so well masked that Aboriginal informants didn't actually tell some of the early ethnographers that, for example, if a man had no sons then his daughters' children would inherit the land.

DR BRUNTON: I would - well, that - you're referring there to Grey.
MR HUGHSTON: Yes.

DR BRUNTON: And one would presume, and obviously has to speculate, that Grey being given the normative rule then said, "Well, look, what happens if a man has no sons?"

MR HUGHSTON: Yes.

DR BRUNTON: And so he's given, then, the mechanism that operates where this doesn't apply.

MR HUGHSTON: So, clearly, there was more than one legitimate means of recruitment into the land-owning group as at the date of sovereignty.

...

DR BRUNTON: Yes, I'm saying there was a - there was a norm or an ideology of patriliny, and when this was not possible to be met, then there were other mechanisms that came into play.’

321	Dr Brunton acknowledged there had been other descriptions in other writings; sometimes wives were referred to as co-owners, sometimes ownership was treated as being in the family. There was then some evidence that assists to identify the main issue in relation to this part of the case:

‘MR HUGHSTON: Okay. Now, one thing that's clear, though, could I suggest to you, that the laws and customs under which any estate group possessed rights and interests in land and had a connection to the land weren't simply the laws and customs of that particular estate group; they were the laws and customs of a much larger grouping of Aboriginal people.

DR BRUNTON: I would certainly accept that.

MR HUGHSTON: Okay. And in this area of the south-west, harking back to the research strategy which you undertook, can I suggest to you that at sovereignty that that larger body which possessed those laws and customs under which estate groups held their rights and interests in land, were the Aboriginal people who occupied more or less the area now encompassed by the Single Noongar claim.

DR BRUNTON: That's where we disagree, Mr Hughston. I think that the group within which the relevant laws and customs would apply would have been the smaller group.

MR HUGHSTON: Yes.

DR BRUNTON: And my reasons would be, firstly, the one of where changes did occur, the extent to which they would have then been felt necessary to be followed across the board, and the fact that ... the difference in terms of the rules of social categories.

MR HUGHSTON: Well, ... can you identify that smaller group for me?

DR BRUNTON: I find that ... it's very difficult and ... you know, ... I've tried to clarify that in my witness statement. I think we just don't have the information about boundaries, the information about ... the areas of country to which names applied.

MR HUGHSTON: Yes.

DR BRUNTON: It's so inconsistent. I find it very difficult to say, "Look, this would be the particular group". I suspect on the basis here - and this is not from south-west Australia but from other parts of Australia - that it would have been of the order of magnitude of the Tindale sort of tribe ... In other words, ... the kind of areas which he has delineated in the ... coastal south-west Western Australia. But as I said, I ... can simply say, because we have no other bases on which we can confidently delineate a group with - with which yes, people agreed this is the boundaries of, say, the Wadjuk or the ... Yued, or so on.

MR HUGHSTON: Certainly when you wrote your first report in 2003 you could confidently delineate a group whose laws and customs were likely to be the same laws and customs as those acknowledged and observed in Perth, and that was the group which more or less occupied the area of the Single Noongar claim.

DR BRUNTON: As I said, that was a basis of a research strategy and I wasn't addressing, I wasn't asked to address the broader question. I was looking at the extent to which I could use that ethnographic evidence to illuminate.’

322	A little later, Dr Brunton went further. He had this exchange with Mr Hughston:

‘MR HUGHSTON: Yes. Would you agree, then - is it your opinion that there was a considerable degree of cultural similarity across whole of the south-western region.

DR BRUNTON: Yes, I accept that there was a considerable degree of cultural similarity.

MR HUGHSTON: And when we are dealing with cultural similarity, by culture we're talking about laws and customs, aren't we?

DR BRUNTON: Well, yes, culture can ... be said to encompass laws and customs.

MR HUGHSTON: Well, what does it encompass over and above laws and customs?

DR BRUNTON: Well, beliefs.

MR HUGHSTON: Beliefs. So it encompasses laws, customs and beliefs?

DR BRUNTON: Mmm.

MR HUGHSTON: So you believe that as at sovereignty, there was a considerable degree of similarity in beliefs, customs and laws across the whole of the south-west?

DR BRUNTON: No, I - I said I believe that there was a considerable degree of similarity in terms of those elements that ... we know about over large parts of the south-west, yes. The whole, I don't want to commit myself ---’

323

Dr Brunton was taken to para 9 of his report, where he referred to ‘the considerable degree of linguistic and cultural similarity across the south western region’. He told Mr Hughston he was ‘not retracting’ that statement and added ‘I’ve said linguistic to the best of my knowledge’.

324

In a discussion about the extent to which Nind’s report was helpful, Dr Brunton said he wanted to ‘clear up a possible source of confusion’. He said: ‘I was not saying that a group the size of a Tindale tribe was the landowning group; rather, ... I think it’s a much smaller group’. As I understood Dr Brunton, this was the ‘estate group’. However, as I also understood him, the society whose laws and customs entitled the estate group to particular land was a ‘Tindale-sized tribe’; that is, a group roughly corresponding with the group of people who spoke a particular dialect.

(e) Applicants’ submissions

325

In their submissions about land laws and customs, counsel for the Applicants referred to Dr Host’s observations about the flexibility of traditional Aboriginal lifeways, as reported to Barker by Mokare: see paras 136 - 138 above. They noted Nind’s description of the interaction between groups: see para 143 above. They also referred to the observations of Salvado, Moore, Armstrong and Bates about land organisation in parts of the south-west, other than King George’s Sound. Counsel then summarised Dr Palmer’s opinion:

‘Dr Palmer states that in many areas of Australia it is evident that rights in country are not the sole or exclusive prerogative of the members of a single country (or local) group, however recruited. Based upon Dr Palmer’s consideration of the anthropological literature on this issue over the last seventy years or so, Dr Palmer is of the opinion that it is evident that there was most probably a degree of regional variation in local group organisation and ownership of land to be found across the continent. Secondly, for hunter/gatherer societies, there is a need for flexibility, both as a result of ecological considerations and because of the likely exercise of personal choice. Thus, in Dr Palmer’s view, it is unlikely that pre-contact systems were as rigid and fixed as may have been supposed. Finally, he concludes that it is clear that rights to country, their exercise and legitimation were a complex matter that required the exercise of a range of social relationships, rather than reliance on a singular principle.

In Dr Palmer’s view, it is an error to consider that the land-holding system, as it is reported, as comprising a series of hermetic and self-contained land units, (estates), over which individuals exercised exclusive rights. In his view, this does not reflect the traditional situation as it has been reported by early observers and as it was most probably to have been found, both for the Perth and Albany regions and elsewhere in the southwest of Western Australia. It is submitted that Dr Palmer's opinions in this regard are soundly based on the early source materials which are referred to in his report.’ (Citations omitted)

326	Counsel discussed Dr Brunton’s evidence concerning land ownership at some length. In essence, their submission was that he had adopted an erroneous approach to the issue. Counsel said his approach was:

‘predicated on the mistaken assumption that native title is a set of rights and interests which closely corresponds with Western notions of the ownership of land. That approach involved Dr Brunton in setting out, very early in his principal report, certain anthropological assumptions about the nature and identity of land owning groups and then reviewing the historical record for evidence which would identify land owning groups of that kind, within the Single Noongar claim area. (Citations omitted)

327

Counsel for the Applicants noted agreement between Dr Brunton, on the one hand, and Dr Host and Dr Palmer, on the other, that, at date of settlement, ‘rights and interests in particular areas within the south-west, were possessed by family groups, which Dr Palmer calls "country groups" and which Dr Brunton calls "estate groups"’. Counsel then said:

‘What stands between Dr Host and Dr Palmer on the one hand and Dr Brunton on the other, is the extent of exclusivity of those rights and whether those rights and interests could be acquired otherwise than by patrilineal descent.’

328

Counsel for the Applicants proceeded to deal with both these issues. In relation to the first – exclusivity of rights – they referred to the extensive references in the early writings to the entitlement of people other than members of the landholding group to access particular land for various purposes, including food-gathering.

329

In relation to the second matter, acquisition other than by patrilineal descent, they pointed to passages in the early writings in which there are suggestions, at least, of non-patrilineal entitlements. Counsel noted Dr Brunton had conceded, in cross-examination, the existence of exceptions to a rule of patrilineal descent. They submitted, in effect, that the evidence did not indicate a fixed rule of solely patrilineal descent.

(f) Submissions for respondents

330	Counsel for the State commenced the relevant part of their closing submissions by making three statements which, with one qualification, seem to be correct and uncontroversial:

(i) ‘The evidence clearly establishes that in the south-west at sovereignty, groups of people had rights to areas of land which were articulated as ownership of relatively well defined areas of country. Dr Palmer defined those groups as "country groups", and Dr Brunton defined them as "estate groups";

(ii) Amongst the early observers there was general agreement that areas of land were owned by family groups, and not by individuals, nor by larger political entities;

(iii) It is clear that at sovereignty there was no centralised authority to which the various country groups in the south-west were subject, but rather families acted independently of each other.’

331	The qualification is that the independence of families, stated in item (iii), was subject to obligations imposed by the laws and customs observed by a larger entity, whether a single Noongar community (as Dr Palmer thought) or a Tindale-sized community (as Dr Brunton believed).
332	Counsel for the State submitted that the boundaries of land possessed by particular ‘estate’ or ‘country’ groups were ‘relatively well-defined’. In relation to this matter, they summarised the expert evidence as follows:

‘Dr Host said in his evidence that boundaries were permeable. By this he meant that they were not clearly defined (like lines on a map), but he acknowledged that:

(a) there was a general sense amongst the Aboriginal people as to which territory belonged to whom, and that permission was needed to pass through another person's or group's territory;

(b) there was a distinct sense of which sites or landmarks belonged to whom; and

(c) outside of those sites or landmarks, boundaries would have been less well defined (e.g. within a zone that, around Albany for example, may have been in the order of 1 to 10 kilometres wide).’

Consistently with that evidence, Dr Brunton explained that, as a general principle, estates are more likely to have clearly defined boundaries in resource rich areas than in arid areas. Even then, it may be accepted that boundaries would be clearly defined in some places (where they are formed by particular features of the landscape) and more indistinct in others. Dr Palmer similarly said that boundaries were defined by specific or more generalised geographical referents.’ (Citations omitted)

333	I think this summary is accurate. With one exception, the experts’ evidence is consistent with the consensus view of the early writers. The exception is that the early writers seem to have thought the land-owning groups were the various groups (‘bands’ or ‘tribes’) who lived, and moved around, together. On the other hand, Dr Palmer and Dr Brunton both believe the situation was more complex than that: ‘ownership’ resided with ‘country groups’ (or ‘estate groups’) whose membership was not identical to that of the bands or tribes. ‘Bands’ or ‘tribes’ could comprise people from more than one ‘country’, or ‘estate’, group.
334	Counsel for the State also submitted the evidence ‘clearly establishes that the principal way in which rights to land were acquired was through patrilineal descent’. They cited statements by Armstrong, Grey, Moore, Barker, Millett and Bates, amongst other statements not in evidence in these cases, and mentioned Dr Brunton’s opinion ‘that membership of an estate group was ideally determined on the basis of patrilineal descent’. However, counsel acknowledged Dr Brunton’s recognition of exceptions to this rule. So the result is not markedly different to that postulated by Dr Palmer: a normative rule of ‘patrilineal bias’.
335	Counsel for the State also said:

‘The evidence also establishes that while country may be said to have been owned by families or groups, it was the men within those families or groups who controlled the exercise and the transmission of rights. Women were not regarded as landowners, although they clearly had rights to reside and forage in their father's country and, when married, acquired similar rights in their husband's country.’ (Footnote omitted)

336	I think this statement is correct, subject to the qualification that there is evidence that women enjoyed rights of ‘ownership’ in some circumstances; also that land could sometimes be inherited through women.
337	A further matter noted by counsel for the State, once again uncontroversial, related to the rights of others. Counsel said:

‘There is no doubt that the members of a country group were not the only persons to use the land and waters within the country group's territory. Rather, members of a number of country groups frequently gathered together for the purposes of everyday living, including hunting and gathering. Dr Brunton described the groups that used land as "bands", and Dr Palmer described them as "residence groups". Both agreed that residence groups were not fixed or enduring entities but rather their composition changed over time, and they were not landowning groups.’

338

In a section of their submissions headed ‘Other bases for rights in land’, counsel for the State devoted attention to a debate between the two anthropological witnesses as to the nature and extent of the exceptions to the rule that, at date of settlement, land rights were acquired by patrilineal descent. I need not summarise that debate; it seems to suffer from both semantic point-taking and an insufficiency of information from the early writers about these exceptions. What is important is that there is no suggestion, by any of the early writers, that any variation in the exceptions from patrilineal descent, as between one part of the claim area and another, had the effect of breaking the people of the south-west into distinct communities. On the contrary, the writer who devoted most attention to those differences (Bates) spoke of ‘one people’.

339

Counsel for the State made a comment about place of birth. They noted that:

‘Dr Palmer was not aware of any early observations which suggested that birth outside of a country group gave the person rights in the place of birth, except for some observations by Salvado and Bates. Salvado reported that birth near a pool gave rise to certain rights in relation to that pool. Bates suggested that birth in the territory of another group may have given rise to certain rights in that other territory later in life, especially through totemic affiliation; and that a person may also have obtained particular rights in respect of their place of birth.’ (Citations omitted)

340	As counsel noted, Dr Brunton had adverted to the possibility that ‘place of birth may have given a person a particular right as to a site within their family’s estate’, but there was no evidence that any such right would be inheritable by that person’s children. Counsel submitted:

‘... there is nothing in the early literature to suggest that place of birth alone qualified a person as a member [sic: of] a country group. Nor does the early literature support a finding that in the south-west a person could ordinarily obtain membership of their mother’s country group (i.e. the country group into which the mother was born).’

341	These comments about place of birth appear to be correct. However, once again, they are inconsequential in the present context. There is no suggestion that rules about place of birth differed in 1829 between one part of the claim area and another, so as to support the argument against the then existence of a single Noongar community.
342	Counsel for the Commonwealth said her client:

‘does not dispute the existence of a normative system of laws and customs operating in the south west under which rights and interests were possessed. Nor does it disagree with the submission that rights and interests in particular areas were possessed by "country groups" or "estate groups".’

343	Counsel said the issue ‘is the normative rule applying under which the rights and interests were possessed at sovereignty’. She noted the Applicants’ description of their case, in their Outline of Case filed before the hearing:

‘a "land-owning system comprising both recognition of multiple local attachments to land within Noongar country and which places primary emphasis on descent as the means for acquiring rights and interests in land".’

344	Ms Webb went on to refer to Dr Palmer’s evidence which, she claimed, led to the conclusion that ‘[n]o normative rule as to how rights and interests were possessed at sovereignty is, or can be, discerned in [the Applicants’] argument. In essence, the "rule" is that there is no rule (except to the extent that "descent" was an important means of gaining rights to country)’.
345	Ms Webb then referred to the evidence of both Dr Palmer and Dr Brunton, together with excerpts from some other anthropological writings collected by Dr Brunton in his report. She concluded this aspect of her argument by saying:

‘It is not a matter for the respondents to a native title claim to prove the existence of a normative rule at sovereignty under which rights and interests in land are possessed, or which determines membership of land-owning groups. That is a matter for the applicant.

The ... Applicant has not established on the evidence the nature and content of any normative rule at sovereignty under which rights and interests are held, and membership of the land-owning group is determined. In particular, the evidence does not establish a cognatic system operating or any normative rule for a "land-owning system comprising both recognition of multiple local attachments to land within Noongar country and which places primary emphasis on descent as the means for acquiring rights and interests in land" (insofar as such a general formulation can be considered to be a "rule").

Insofar as anything is established by the evidence in this case, it is that the social organisation at sovereignty and inheritance of rights and interests in land was based on a normative rule of patrilineal descent (with some exceptions in circumstances where patrilineal descent was not possible).

No normative rule allowing cognation for local group membership at sovereignty has been established on the evidence. ’

346	Counsel for WAFIC put a succinct submission on this point:

‘... if native title is established in the claim area, the relevant holders will be defined by reference to local group organizational units. Specifically, it is submitted that:

(a) at sovereignty, native title rights and interests were held by groups smaller in scope than the applicant group as a whole;

(b) it is not permissible for a group to merge with others or attach to geographical areas to which they were not traditionally attached post sovereignty; and

(c) accordingly, if native title rights and interests are established, then they are held by the relevant groups identified to have held those rights at sovereignty – which in WAFIC’s submission (assuming continuity, in respect of which WAFIC adopts the submissions of the State) are the groups identified by reference to, inter alia, dialectical differences.’ (Citation omitted)

347	The local government authorities represented by Mr Wittkuhn put no submission concerning the laws and customs relating to land at date of settlement.

(g) Conclusions

348	The issue for determination, in this section of my reasons, is whether, at settlement, there was in the claim area a single normative community, with members throughout and beyond the claim area (as the Applicants contend), or a number of normative communities who occupied discrete, smaller territories, perhaps similar in size and location to the dialect areas identified by Tindale (as several respondents say).
349	In evaluating that issue, the evidence concerning laws and customs, at settlement date, pertaining to land is of cardinal importance. In relation to that matter, it is significant that Dr Brunton conceded the existence, at date of settlement, of a ‘considerable degree of cultural similarity’ throughout the whole claim area, including in relation to laws, customs and beliefs. When pressed by Mr Hughston to identify any regional difference in the land laws and customs of the claim area, Dr Brunton mentioned only the difference in descent rules claimed by Bates. Bates stated that, from Augusta up the coast to Jurien Bay, children took descent from their mothers; over the remainder of the ‘Bibbulmun’ area, from their fathers. On the evidence, it is not clear that Bates’ distinction was well-founded; neither Dr Brunton nor Dr Palmer thinks it was. However, the important point, made by counsel for the Applicants, is that, despite this perceived difference, Bates wrote that, throughout its whole area, the ‘Bibbulmun Nation’ was ‘one people, speaking one language and following the same fundamental laws and customs’.
350	There is considerable common ground regarding the position, at date of settlement, concerning laws and customs relating to land. The following matters seem to be clear:

(i) In dealing with widely-scattered geographical areas, the early writers reported normative rules that differed from each other only to the extent that Bates detected a more rigid system of descent than the other writers; and thought it differed between one part of the claim area and the remainder;
(ii) At the date of settlement, the normative system governing rights to land was that of a larger community than either the ‘tribes’ mentioned by some of the early writers or the ‘estate groups’, or ‘country groups’, mentioned by Dr Brunton and Dr Palmer. It was that normative system which supplied to members of the smaller groups their rights to occupy and use particular areas of land, and imposed on them obligations to allow certain others to use that land for certain purposes, such as food-gathering and ceremonies;
(iii) This normative system was not formulated or enforced by any over-arching authority. The normative system derived its force from the fact that it was part of a mosaic of laws and customs that were generally observed by a community of people larger than the various ‘tribes’, ‘estate’ groups or ‘country’ groups; and
(iv) The present parties agree, first, in rejecting the notion of a geographical difference in descent rules and, second, in postulating a general rule of patrilineal descent, subject to exceptions. However, there are differences between the expert witnesses in this case, and amongst other anthropologists, concerning the nature and extent of those exceptions.

351

I defer any final view about the 1829 situation. At this stage, I merely note that the apparent lack of points of distinction between the laws and customs governing land use and occupation in different parts of the claim area, at date of settlement, is something that tends to support the view that the people within that area were then a single community, for the purposes of s 223 of the Act.

(vi) Customs and beliefs
(a) Circumcision

352

All parties accept that, at date of settlement, there was a ‘circumcision line’ whose location roughly corresponded with the northern and north-eastern boundaries of the claim area. The line was mentioned by a number of writers. Its position was identified in various publications, including Bates’ 1907 map Geographical Distribution of Tribes. In describing the Bibbulmun Nation’s area, Bates commented that ‘all along its landward boundary [that is, to the north and north-east of the line] were the circumcised tribes’. Circumcision was not practised south of the line.

353

In a discussion about the role of cultural differences, in delineating a society, Dr Brunton acknowledged the significance of the fact that circumcision was not practised in the claim area. He said:

‘... certainly they didn’t have circumcision and sub-incision and the fact of that would have been quite important in how the Aborigines coming in from other areas, as they did either accompanying droving teams or being moved, saw them.’

354

Dr Brunton was here speaking of the post-settlement situation. However, the pre-settlement position must have been the same. To the extent that pre-settlement Aborigines were aware of a different custom concerning circumcision, it must, for them, have been a marker of the existence of different communities.

(b) Kangaroo skinning

355	Nind, Moore and Hassell all described the practice of wearing a kangaroo skin cloak, reaching nearly to the knees. Although they were observing Aborigines in different geographical areas, Nind and Moore gave consistent descriptions of the method of cloak manufacture.
356	In his memoirs, Salvado (at p 154) described two Aboriginal methods of cooking a kangaroo. Both methods were apparently used in the New Norcia area; the choice between them depended on the cook’s urgency to eat. Even the speedier method included removal, from the carcass, of ‘the entire skin right up to the neck’.
357	Although the evidence on this topic is not as clear as that relating to circumcision, it seems that, in the areas immediately outside the claim area, it was not usual practice to skin kangaroos. In those areas, kangaroos were cut up and cooked unskinned; kangaroo skins were not made into cloaks. In his report, and basing himself on his own experience, Dr Palmer said ‘the skinning of kangaroo was not preferred practice in many Aboriginal societies to both the north and east’. He said that, in Western Desert cultures, ‘a kangaroo must not be skinned and a series of normative rules dictate how the animal will be gutted, cooked and subsequently shared’.

(c) Spiritual beliefs

358	In his report, Dr Palmer sought to summarise, and put into context, the early writings about spirits and death. He said:

‘The accounts of early writers present a picture of South West Aboriginal society that was deeply informed by reference to spirits, death and the after life of the departed. In my view this typifies a society that made of the spirit world a preoccupation that informed much belief, action, opinion and emotion. Several consequences flowed from this. First, there existed in parallel with the here and now, that is the physical world of people and things, a spirit world that had to be accommodated, placated and negotiated. This meant that certain things could not be done, particularly travel at night and to certain places known to be the resort of spiritual entities. Certain things also had to be done typified by the lighting of fires or the provision of grave goods. The known world was then resonant with spiritual presences, many of which were at best ambiguous, most dangerous. Activity in country needed to accommodate the eventualities of the spirit world and people had to be on guard to ensure their safety.

Second, the event of death had repercussions beyond bereavement. Death released spirits into the world that had to be understood and encouraged to go their way peacefully, leaving the living to their own devices. This meant that funereal practices were important public rituals which served not merely to dispose of the dead and farewell a loved one, but to enter into and manage a relationship with the spirit world. Added to this was the importance, recorded in some accounts discussed here, of establishing the cause of death – usually attributable to a person.

Some writers reviewed here regarded the belief in spirits and the spirit world as ‘superstition’. They equated it with a belief in ‘ghosts’ which was familiar to them from their own culture. However, in my view, these beliefs in the spirit world constitute a more substantial body of belief and its management a system of rules and laws. The following of these rules were considered to be essential for maintenance of peaceful relationships between the living and the dead. The scrupulous observance of rules that determined how one dealt with the spirit world constituted an important part of Noongar culture. It was a culture that reverberated with spiritual reference and this was a notable feature of its manifestation.’

359

Dr Palmer cited references in Barker, Armstrong and Bates to an Aboriginal belief that the spirits of the dead remain present, inhabiting the land. Dr Brunton did not disagree with Dr Palmer’s opinion about the central importance of spiritual beliefs in Aboriginal culture at date of settlement. However, he was sceptical of the view that those beliefs were peculiar to the claim area. For example, he accepted, during the course of his cross-examination, that there was a belief in the claim area about the continued presence of the dead, but he added ‘that’s a fairly common belief in Aboriginal Australia’. The evidence went on:

‘MR HUGHSTON: Yes. And there are other instances, though, aren't there, where people didn't display the fear of the ghosts or the spirits when they believe that they were encountering the spirits of their deceased relatives?

DR BRUNTON: That's true. Well, they - they - you're referring to situations where they encountered Europeans who they believed were [returning] - - -

MR HUGHSTON: Yes. Yes.

DR BRUNTON: Yes, that's true.

MR HUGHSTON: It's a characteristic, isn't it, of this region, that the early European settlers described the Aboriginal people as believing that the early settlers were the ghosts, or the spirits, of their own recently deceased relations and friends.


DR BRUNTON: That's true. I'm not sure whether that also applies in other parts of the country. I just can't answer that.

MR HUGHSTON: Yes. Well, you're not sure, because there isn't literature like that for the rest of the country, is there? It's quite unique.

DR BRUNTON: As I said, I'm not - I can't answer that.

MR HUGHSTON: Alright. So we have a situation where there is a - described in the early ethnography a widespread belief in the spirits of the deceased people being present in the land, some of those spirits can be dangerous and malevolent, but others, if they're the spirits of your own relatives, are not to be feared.

DR BRUNTON: Yes. In general terms, yes.’

360

Dr Brunton mentioned ‘fears about going into deep pools because of wagyls’. More generally, he agreed there is ‘described in the early ethnography a belief in the existence of dangerous places, places that had to be avoided’. He agreed Bates had described these as ‘winitj places’, and this word had been used by a number of the Aboriginal witnesses in these cases. Mr Hughston put to him: ‘So that’s clearly a belief which appears to have its roots in the pre-sovereignty past?’ Dr Brunton agreed.

361

One of the criticisms Dr Brunton made about the Applicants’ case was the absence of Aboriginal evidence about performing site-specific rituals, to remove the danger lurking in particular places. Mr Hughston put to Dr Brunton that there was an absence, in the early ethnography, of ‘descriptions of specific site or land related rituals’. As I understood it, Mr Hughston’s point was that site-specific cleansing rituals had never been part of south-west culture. Dr Brunton drew attention to a description by Bates of a black swan ceremony. However, Dr Brunton conceded Bates did not state this was a site-specific ceremony, and that he could not cite any other reference to a supposed site-specific ritual or ceremony. Mr Hughston then drew his attention to Armstrong’s reference to ‘certain ranges of hills ... between Mr Trigg’s lime kiln and Fremantle which they consider very unlucky to pass over and that all who cross them are likely to die soon’. The evidence went on:

‘Again, that's the avoidance, [of] dangerous places we were talking about earlier. Is that right?

DR BRUNTON: Yes.


MR HUGHSTON: "They call the mountain that contains the cavern discovered by Mr Dale on the bank of the Avon the Mountain of the Moon because they believe that the moon once entered that cavern and left the print of her hand on its side, but they had never used it as a temple."

Presumably, that means they have never performed ceremonies there.

DR BRUNTON: Yes.

MR HUGHSTON: And then he goes on to say:

"Neither are they known to perform there or elsewhere any idolatrous rite or ceremony."

DR BRUNTON: Mm.

MR HUGHSTON: So it appears obvious, doesn't it, that the early inhabitants, occupiers - Aboriginal occupiers of the southwest were not particularly into, if you like, land or site-specific rituals?

DR BRUNTON: Well, yes, according to this, they're not into [any] kind of rituals at all.’

362	In the course of discussing the position in south-west culture of spiritual beliefs, Dr Brunton mentioned ‘wagyls’ (or ‘waugals’). He referred to descriptions of the waugal given by Moore, Armstrong, Salvado and Bates. Bates said:

‘... in the south west the waugal was usually perceived as a huge snake which had made various features of the landscape within its own district. In some parts it was believed to have journeyed through certain districts, leaving traces of its travels at specific places, which were always "sacred" or "forbidden". In particular, the waugal made the rivers. In the south western region local traditions relating to the waugal varied as to whether it was "an avenger, guardian spirit or healer".’

363	Although he did not, Dr Brunton might also have mentioned Armstrong’s reference to ‘a malignant spirit called Meetagong, which prowls around at night and catches hold of them, if they go by themselves to any distance from the fire where the rest of the party lie’: see para 157 above. Many of the Aboriginal witnesses in this case mentioned their belief in the existence of wudatji, small creatures about three to four feet in height, who behave in a similar way.
364	Dr Brunton also mentioned Bates’ reference to ‘baby-stones’ places, where women go when they wish to conceive. He said: ‘[t]he place was taboo at all other times, and men always kept well away from such stones’.
365	Dr Brunton identified a number of other winnaitch places in the Perth area mentioned by Bates. Dr Brunton concluded:

‘The Perth Metro and Bodney claim areas clearly included many places which were set apart in various ways, and where certain kinds of behaviours, including total avoidance, were required; these behaviours most probably depended to some extent on the individual’s relationship to the estate on which the site was located, as well as other factors, although some places may have been avoided by everyone. While such places are commonly referred to nowadays by the blanket term "sacred site", the phrase is misleading if it is taken to imply the kind of veneration that non-Aboriginal Australians tend to associate with the term "sacred". Terms such as "dangerous places" may be preferable.’

366

While there seems to be no dispute about the existence, at settlement date, of numerous dangerous places in the claim area, the significance of that fact, in the present context, is unclear. As I understand the situation, the existence of ‘sacred sites’, or ‘dangerous places’, is a feature of Aboriginal tradition throughout much (if not all) of Australia. Similarly, I understand many Aboriginal communities have a traditional belief in a creature like the waugal. I am unaware of the position in relation to wudatji. In the absence of evidence that the apparently widespread belief in these creatures throughout the claim area distinguished people in the claim area from those outside it, I cannot be satisfied that the sharing of these beliefs adds weight to the claim that, in 1829, there was a separate, distinctive community throughout the claim area. That does not mean evidence of present-day adherence to these beliefs is unimportant; such evidence is relevant to the question whether people continue to adhere to the traditional laws and customs of such a community, if its existence is established on other evidence. I see no reason to read down the reference to laws and customs, in s 223(1) of the Act, so as to exclude laws and customs that are observed by a particular community in common with Aborigines in other communities.

367

The evidence also establishes Aboriginal belief in the powers of the ‘mubarn’ (or ‘bulya’ or ‘mulgarradock’) – ‘Noongar doctors’ or ‘clever men’ – at date of settlement. Dr Palmer said these powers:

‘... included an ability to foretell the future, practice divination, particularly with respect to establishing the cause of death of a person and being able to cure illness or injury.’

368

Dr Palmer cited references to the mubarn in numerous early writings. There is no controversy about those references. It is also clear that many contemporary Aborigines entertain these beliefs. However, it is important to note Dr Palmer’s statement that the ‘equivalent of Noongar doctors are recorded for many other areas of Aboriginal Australia’.

(d) Marriage

369	It is evident from the early writings that the Aboriginal population of the south-west had rules about marriage at settlement date. Their content is less clear. Nind commented that, in marriage, ‘they have no restriction as to tribe; but it is considered best to procure a wife from the greatest distance possible’. Nind saw this as a pragmatic consideration; ‘[t]he sons will have a right to hunt in the country from whence the mother is brought’.
370	Nind wrote about ‘divisions and subdivisions of tribes’, and stated some names (for example, Erniung, Tem, Montcalon and Torndirrup – see para 142 above). However, his observation that there was ‘no restriction as to tribe’ suggests the existence of these divisions and subdivisions did not dictate or restrict the choice of marriage partners. Nind said the divisions ‘are very much intermingled’. The divisions seem to have been geographically based. Nind said the Moncalon is ‘prevalent to the eastward of our establishment, and the Torndirrup to the westward. They inter-marry and have each again their subdivisional distinctions, some of which are peculiar, and some general’. What that meant, he did not explain.
371	Bates seems to be the only early writer who detected the existence of different rules of descent (maternal and paternal) governing rights to land. She made the comment that, at a ‘borderline where the two lines of descent met, the tribes were friendly with each other, intermarrying and adjusting their "in-law" relationships to suit the form of descent obtaining’. It is unclear to me whether this comment was relevant to choice of marriage partners. At p 55 of The Native Tribes of Western Australia, Bates referred to the ‘Karratjibbin Groups’, who lived outside the claim area. She said:

‘The name Karratjibbin has been applied to this nation, as it was the term supplied by my Southern Cross informants, for their chief camping ground in that locality. Only a few weeks could be devoted to this most interesting people, but sufficient information was obtained to justify their separation from the Southwestern nation and also from the central areas.

...

The peculiar organisation existing amongst these people differentiates them from every other known tribe in the West. They possess a two-moiety system, which in this respect links them with their south-western neighbours, but with the important difference amongst the Karratjibbin people of each moiety marrying within itself and producing the other moiety. ...

Whether the area of these people extends further than the limits mentioned, could not be ascertained in the short time allowed for investigation ... I found the system amongst the Norseman district natives and in the Mt Jackson group. Their social organisation, customs, laws, initiation, etc., coincide with those of their eastern, north-eastern and south-eastern neighbours, with whom they have traded their local products. Whether they exchanged boys for initiation with these neighbours I could not discover. The rule was to send a Southern Cross Karratjibbin boy to Mt Jackson, and vice versa. A Norseman district boy went to Karratjibbin.

The various groups composing the ‘nation’ held rights of possession to certain water-holes, hills, soaks, springs, etc. ...

The Karratjibbin Nation borders the Bibbulmun on the north-east, and several of the latter were adopted into and circumcised by the Karratjibbin people.’

372	The territory of the Karratjibbin groups lay to the north-east of that of the ‘Bibbulmun Nation’. Consequently, Bates was saying that the Karratjibbin two-moiety system ‘in this respect’ linked them with the Bibbulmun (‘their south-western neighbours’), ‘but with the important difference amongst the Karratjibbin people of each moiety marrying within itself and producing the other moiety’; implicitly, the Bibbulmun did not do this. That, however, left unclear what role (if any) the implied Bibbulmun two-moiety system played in regulating choices of marriage partners.
373	In relation to differences between the Aborigines living in the claim area at date of settlement and those immediately outside it, it is interesting to note Bates’ general observation about the Karratjibbin: ‘Their social organisation, customs, laws, initiation etc, coincide with those of their eastern, north-eastern and south-eastern neighbours’. Implicitly, they did not coincide with those of their south-western neighbours, the Bibbulmun.
374	It will be apparent from the extract from Dr Brunton’s evidence quoted at para 315 above, that he was of the opinion that, at date of settlement, there existed in the claim area, two distinct moiety systems governing choice of marriage partners. It appears from para 4.2.3.3 of his report that he based this opinion upon Bates’ reference to a ‘two-moiety system’.
375	Dr Brunton’s para 4.2.3.3 seems to intermingle moiety divisions relevant to marriage with descent rules governing access to land. Nonetheless, it may be correct to attribute to Bates a belief that moiety rules governed choice of a marriage partner in the claim area. The problem is that the available material does not establish the nature of the rules or the extent to which they imposed a restriction on the choice of marriage partners. All that may be said is that, whatever the content of those restrictions, Bates thought the situation to be different amongst the Karratjibbin groups to the north-east of that area.
376	The evidence clearly establishes the existence of two marriage practices, in the claim area at date of settlement: infant betrothal and a brother – possibly only a younger brother – marrying the wife or wives of a deceased brother. However, I believe these practices were once widespread in Aboriginal Australia. It has not been suggested by any party that the existence of either of them assists to identify the relevant south-west community at date of settlement. In the result, I obtain no assistance from marriage rules or practices in forming a view as to the existence of a Single Noongar community in the claim area at that date.

(e) Sexual transgressions

377

At para 133, I set out Dr Host’s summary of Barker’s report about sexual transgressions. It appears from the summary that there were firm rules about sexual conduct in the King George’s Sound area at the date of settlement. However, there is no material that enables me to determine the geographic area over which these rules applied.

(f) Payback

378

Payback is mentioned by Lockyer (see para 128 above), Barker (para 134), Lyon (para 154), Armstrong (para 159) and Salvado (para 174). There is no doubt about the existence of the practice at date of settlement. However, there is no material to suggest, or reason to believe, that the practice was different in the south-west to other parts of Aboriginal Australia.

(g) Funeral rites

379

At para 188 above, I quoted Dr Palmer’s comment, that ‘funereal rites were particularly important’. Earlier, I mentioned Dr Host’s comment that Moore’s description of an Aboriginal burial, in 1838, in Upper Swan was consistent with Collie’s description of Mokare’s burial at King George’s Sound in 1832 (see para 172).

380

Almost all the Aboriginal witnesses in these cases talked about the importance of allowing time, before the funeral, for the spirit to depart the body and, also, the manner in which the body had to be laid in the grave. The evidence about the last-mentioned matter was not entirely consistent; there may be some regional variation in respect of that matter. Nonetheless, it is clear that funeral rites are, and always have been, a central element in south-west Aboriginal culture. What is not clear is the extent (if any) to which funeral practices in the south-west differ from those elsewhere in Australia.

(h) Tools, weapons and food-getting

381	Many of the early writers (including the maritime explorers) described Aboriginal tools, weapons and food-getting. Their reports establish that the south-west Aborigines, before and at date of settlement, were a resourceful people whose way of life was well-adapted to their environment. I have not discerned any regional variation in the writers’ accounts, except for the obvious fact that fishing was only available to those Aborigines who enjoyed access to substantial bodies of water. For those people, it seems fish were important. Nonetheless, and importantly in relation to the nature and extent of any native title rights that may be held to exist in the present case, it is clear that pre-settlement Aborigines did not use canoes or any other form of water-craft; neither were they confident swimmers. Lyon (para 152 above) said the people near Perth had ‘not the least inducement to attempt navigation, even swimming is unknown among them’. Armstrong (para 165) said the coastal Aborigines ‘have no knowledge of the use of canoes, or any substitute’. It seems fish were sometimes caught in nets and weirs, but mainly were speared.
382	The comments on fishing by Lyon and Armstrong are consistent with the evidence of the Aboriginal witnesses called in this case. Although many of these witnesses lived in coastal communities, none of them gave evidence of an oral tradition, or long-standing practice, of using boats for fishing. The only evidence was of fish, and other marine animals, being taken by persons standing in the water or on dry land, such as headlands or riverbanks or islands accessible by wading.
383	The evidence before the Court in relation to tools, weapons and food-getting does not assist me to determine whether the people of the south-west should be regarded in 1829 as a single community. The material does not disclose differences between the tools and weapons used, and practices followed in respect of food-getting, in different parts of the south-west. But neither does it indicate that any of these customs differed from those followed elsewhere in Aboriginal Australia.

(vii) Social interaction
(a) The early writers

384	One subject that permeates the early writings is the extent of interaction between local groups, or ‘tribes’, and Aborigines further afield. Even a casual visitor to King George’s Sound, D’Urville, noted (in Dr Host’s words) that ‘their Aboriginal friends travelled very long distances, often far from the seaboard’: see para 127 above. That behaviour of the King George’s Sound Aborigines was confirmed by Barker (paras 134 and 138 above) and Nind (paras 143 and 144).
385	The early Perth writers also noted widespread travel. The York Aborigines apparently came to Perth (about 60 miles/100 km) for a battle in 1834 (para 148 above). Armstrong recorded sources of the Perth Aborigines’ spears, including the ‘very best spears’ that were brought by ‘their southern friends’ from ‘two or three miles south of the Murray’, perhaps also a distance of about 60 miles from Perth (para 162). Armstrong noted the ‘Swan tribes’ had regular contact with ‘at least ten surrounding tribes’ – to the north, north-east, east, south-east (Canning) and south (Mangles Bay and Murray) (para 163). Armstrong did not identify all the tribes. However, the cumulative area of their territories must have been considerable.
386	By the time Bates conducted her research, the situation must have been much changed. However, she seems to have made enquiries about travel from the old people she interviewed. In The Native Tribes of Western Australia, Bates reported ‘constant intercourse from time immemorial’ between all the ‘Bibbulmun people’. She said they ‘assembled at any point between Augusta (Cape Leeuwin) and Cockleshell Gully (Jurien Bay district) for various purposes ... there was in fact a main irregular highway north and south, with branches eastward here and there over the hills wherever relationships extended’: see para 183.
387	If Bates’ report is correct, there was regular contact between all the west coast people. Moreover, they were in contact with people ‘over the hills’ to the east. Bates does not say how far east. However, she noted interaction by the people ‘over the hills’, with both those of the west and other eastern tribes (‘[t]here was also free intercourse between the Minung (Eastern) Bibbulmun and the Western Bibbulmun’): see para 186. Although Bates must have known European settlers had opened up additional, perhaps easier, lines of communication, she seems to suggest this widespread intercourse predated settlement. She said the ‘living members of the various groups state that they could always travel through any area in which a relation existed, the term relation being used in its widest sense’. (My emphasis)
388	Perhaps the best guide to Bates’ perception of the degree of interaction at settlement date, between the west coast Aborigines and those ‘over the hills’ to the east, is her opinion that there was a Bibbulmun nation whose territory extended all the way to the Esperance district.
389	The early writers noted the occasions of interaction between tribal groups: trade, feasting, ceremonies, wife-getting and fighting. As previously noted, there were rules under which particular land ‘owners’ had to submit to the intrusions of others, at least at particular times or in particular circumstances. There appears also to have been a custom whereunder land ‘owners’ accepted food-getting intrusions by friendly neighbours; perhaps subject to reservation of some pre-eminent rights, such as burning the country.

(b) The Aboriginal evidence

390

The impression about social interaction conveyed by the early writings obtains some support from the Aboriginal evidence in this case. I will deal with that evidence in the next section of my reasons, in discussing the situation since 1829. For present purposes, it is sufficient to say the evidence suggests a long-standing tradition of social interaction between people resident in widely-scattered parts of the claim area. However, in considering that evidence, it is necessary for me to bear in mind that opportunities for interaction would have increased enormously after 1829. The desire for wide interaction may have been increased by the pressures put upon the Aboriginal population by white people and the making of further-flung marriage connections. Interaction would have been forced upon Aborigines in some cases; for example, by government authorities taking people of different ‘tribes’ to a common institution such as Moore River or New Norcia. Accordingly, I give the contemporary Aboriginal evidence about interaction little weight in relation to the 1829 issue.

(viii) The expert evidence about the 1829 situation
(a) Dr Palmer

391	In his report, Dr Palmer reviewed the early writers and expressed the opinion that they provided ‘substantial evidence ... that there existed a discrete society within the South West of Western Australia’ at date of settlement. He went on:

‘I have reviewed the use of a single term for the members of this cultural bloc and shown that the term "Noongar" (or its variants) has long been employed to identify the members of this society. I have also noted that early writers identified a number of other names that, in my view, identified groups within the larger society. The names were non-exclusive and provided a means of identifying groups in relation to particular characteristics, such as place of normal residence or by reference to their location from the perspective of those who utilised the name.’

392	Dr Palmer said:

‘Based on my reading of the literature ... the cultural society of the South West was marked by a preference for seeking a wife who came from that cultural society, but from a group other than that to which the man belonged. As a consequence, there was a forging of inter-community relationships, social and cultural interactions (including joint ritual activities) which both developed and enhanced social alliances and facilitated economic inter-dependencies. The occupants of the area also exhibited a distinct material culture, a detailed knowledge of their natural environment and employed domestic customary behaviour which further identified them as a cultural unit. Finally, there was across the whole region a similarity of language which found expression in regional dialects. These aspects of Noongar culture do not represent a complete account of the traditional laws and customs as recorded by the early observers.’

393

In his reply report, Dr Palmer referred to Bates’ reference to the ‘Bibbulmun Nation’. Dr Palmer said he shared ‘Dr Brunton’s misgivings about Bates’ use of the term ‘nation’’. However, he thought Dr Brunton ‘is wrong to dismiss the evidence she provides about the social relationships that existed between those she identified as Bibbulmun’. Dr Palmer thought Bates established the Bibbulmun, ‘while made up of many dozens of different groups’, were linked in five ways:

‘• one language;
• possessed similar customs and laws;

• were identified in contrast to their neighbours by the non-practice of circumcision;
• enjoyed extensive social intercourse between neighbouring groups and those more distant;
• enjoyed rights to multiple countries, sometimes at some distance from one another.’

394	Dr Palmer noted Dr Brunton had shown that Bates ‘was a thorough ethnographer’. He commented:

‘I think then that his dismissal of Bates’s considerable body of ethnography relating to what she perceived of as a single Bibulmun society is unjustifiable in his own terms. My own view is that Bates provides substantial grounds for concluding that the people of the South West could properly be regarded as constituting a single society. Bates’s reasons for reaching such a conclusion were based on her own observations of what she considered to be traditional (that is, pre-sovereignty) aspects of the society.’

(b) Dr Brunton

395	It is convenient to begin by setting out the following paragraph in the concluding section of Dr Brunton’s report.

‘Was there a single Noongar society covering the South West of Western Australia at sovereignty? Even using the broadest interpretation of society I do not think that it is possible to state that there was a single Noongar society covering the south west of Western Australia at the time of sovereignty, as the available evidence suggests that there was no sense in which the occupants of the region had a sense of unity, or even an awareness of the existence of substantial numbers of the other occupants. There were no all-encompassing relationships or structures, and the fact that contemporary anthropologists and linguists can now discern many cultural and linguistic similarities across the region does not necessarily signify a single society. In any case, in regards to the seemingly important characteristic of social categorisation – moieties and semi-moieties – there were two different rules or laws within the region, and it is possible that these had consequences in terms of certain relationships to land.’

396	In the main body of his report, at section 4.2, Dr Brunton discussed this question. Dr Brunton thought the word ‘nation’ was inappropriate; ‘there is no evidence of any "compact" or preparedness to combine amongst the various constituent groups who ... did not necessarily know of each other’s existence’.
397	Dr Brunton referred to statements of some of the early writers, in order to argue that Bates had overstated the degree of intercourse between members of the ‘Bibbulmun nation’. Dr Brunton’s examples are difficult to evaluate; there are too many ambiguities in the place names he cited. However, Dr Brunton is undoubtedly on firm ground in saying that, although Dr Palmer claims ‘evidence from the early literature that people travelled widely over the South West’, ‘he adduces nothing to suggest that at the time of sovereignty any one group or person knew of, let alone moved through, the whole of the area covered by the Single Noongar Claim, or even a substantial part of it’.
398	While conceding ‘a considerable degree of linguistic and cultural similarity across the south-west of Western Australia’, Dr Brunton said: ‘it does not necessarily follow that this was acknowledged by the people themselves, or that any such recognition had consequences in terms of social organisation, land tenure, etc’.
399	It is clear that lack of mutual knowledge and acknowledgement was fundamental to Dr Brunton’s rejection of the suggestion of a single Noongar community. There is a question whether such knowledge and acknowledgement is necessary, for the purposes of s 223(1) of the Act.
400	Dr Brunton went on to refer to moieties and semi-moieties. However, as I have indicated, the material on this subject is inconclusive.
401	Dr Brunton referred to Tindale’s work. He said he largely shared Dr Palmer’s reservations about Tindale’s ‘tribal model’. However, he went on:

‘Nevertheless, despite the many questions that can be raised about Tindale’s model and the boundaries he delineated, I do not think the fact that he identified thirteen different "tribes" which are wholly or partly encompassed by the Single Noongar claim ... should be dismissed too readily. A number of names that Tindale identified in the south of the Single Noongar claim area were also obtained in slightly variant forms as names for ‘languages’ or dialects nearly a decade earlier by Gerhardt Laves ... And as Dr Palmer acknowledges, some had been recorded by the very early European settlers ... These names may only have represented "dialect units" ... but at least in the case of those which were provided by Aborigines themselves as names for their form of speech, they also point to a sense of differentiation from the people who spoke other named forms of speech, an indication of the Crawfords’ point about the keen interest that Aborigines in the south west had in perceived cultural and physical differences between groups ...

Certainly, Dr Palmer is justified in noting "the complexity and diversity of the nomenclature of identity" ... the likelihood that "identity names may not be exclusive", and the danger of thinking that the names recorded by the early writers are "indicators of fixed social groups" ... But the ambiguities and uncertainties surrounding the precise referents of identity names of the kind that Tindale and others recorded does not mean that they were of little import compared to a supposed primary significance of a regional identity as "Noongar". As will be clear from my discussion so far in this chapter, I have not seen any evidence in accounts from observers writing in the early decades of European settlement that would persuade me that the various groups who are now encompassed by the term "Noongar" saw themselves as having a significant common identity.’

402	I have omitted Dr Brunton’s citations in this passage. However, it should be noted that, in footnote 452, Dr Brunton makes clear that he has merely inferred that some tribal names ‘were provided [to Tindale] by Aborigines themselves’. Apparently, Tindale did not say so.

(ix) Submissions about the 1829 situation
(a) The Applicants’ submissions

403	Counsel for the Applicants commenced their closing submissions by discussing the evidence about the matters discussed above. I need not set out their comments, except to note that, in relation to marriage, counsel said:

‘Bates stated that from Jurien Bay to the Donnelly River, (West of Pemberton), a child gained the moiety of their mother but over the rest of the "Bibbulmun" area, from their father. This regional difference in the way in which a person obtained their moiety, is the only internal difference which Dr Brunton could identify within the body of laws and customs which were acknowledged and observed by the Aboriginal population of the southwest at sovereignty. The main, almost the only, source of information about moieties in the southwest is the writings of Bates and she was, of course, well aware of this internal regional difference in the means by which a person acquired a moiety identity. Dr Brunton acknowledged that Bates was aware of this difference when she wrote that the people of the southwest acknowledged and observed the same fundamental laws and customs.’

404	Counsel for the Applicants concluded their review of the evidence by submitting:

‘that there can be no real argument that the Aboriginal people who occupied the Perth Metropolitan claim area at the time of sovereignty, were part of a larger society of Aboriginal people, who occupied the whole of the area encompassed by the Single Noongar claim, and who acknowledged and observed the same, or essentially the same, laws and customs.’

405

Counsel recognised that Dr Brunton did argue against that position. However, they contended Dr Brunton’s argument was flawed by his insistence that there could not be a single Noongar community unless the people themselves knew of, and acknowledged, their commonalities in culture and language: see para 395 above. Counsel commented:

‘In the High Court's explanation of the meaning of the term "society" in Yorta Yorta, there is no requirement that the members of the society subjectively possess a "sense of unity" or "an awareness of the existence of substantial numbers of the other [members of the society]". Similarly, there is no need to establish the existence of any "all encompassing relationships or structures". All that is required is that the peoples in question acknowledge and observe what are essentially the same laws and customs. That is, the rights and interests in relation to land which are possessed by those peoples, are possessed under the same normative system. It is that which unites them and makes them a "society".’ (footnote omitted)

406	Counsel said that, in De Rose, both the primary judge and Full Court:

‘accepted that the relevant "society" was the Western Desert Bloc, because the laws and customs that exist throughout the Western Desert "are essentially the same". The Full Court noted that it had been estimated that the population of the Western Desert prior to European contact may have been 18,000 persons living and moving over an area of some 250,000 square miles. It would be unreal to suggest that at sovereignty, the members of that far-flung society in the Western Desert, had any subjective sense of unity or even an awareness of the existence of substantial numbers of other members of the society. (footnotes omitted)

(b) Respondents’ submissions

407

In their closing submissions, counsel for the State correctly said that the ‘Applicants say that at sovereignty there was a distinct society of Aboriginal people in the south-west of Western Australia, which they describe as "Noongar". The distinguishing characteristic is said to be shared law and custom’. They went on:

‘That immediately raises the question – distinct from whom? Although Dr Palmer was of the opinion that there was a single Noongar society based on shared law and custom, he was unable to define the geographical extent of the Noongar society. The [Applicants] seek to distinguish Noongars from Yamatjis to the north and Wongais to the east. However "Yamatji" and "Wongai" are clearly not precise anthropological terms. Dr Palmer explained that Wongai is a coverall term for a lot of different groups that are broadly speaking part of the Western Desert cultural bloc. They do not adjoin Noongar country, but rather between "Noongars" and "Wongais" there were other "transitory groups, if you see them as marked cultures". In our submission, although there was frequent reference in this case to "Wongai" and "Yamatji" people and country, those are very generic labels for a number of different groups (in the same way Noongar is a generic label for groups in the south-west). There is no clear delineation between these groups.’

408	Counsel’s reference to Dr Palmer’s evidence was not incorrect. However, that evidence should be read in its context. Dr Palmer explained, in answer to a question as to ‘the boundary of the Single Noongar society’:

‘Well, I’m limited of course by the fact that I only did research within the application area, so had I done research outside perhaps I could answer that question definitively, but I am aware from other research that I’ve done not connected with this inquiry that – and I think it’s also borne out in evidence - that there appears to be an understanding that Noongar extends further east in the southern portions of the application area.’

Dr Palmer said he thought all the claim area was within the territory of the single Noongar society.

409

In their closing submissions, counsel for the State noted that ‘Dr Brunton accepted that the various groups in the south-west of Western Australia may be classified as forming a cultural bloc, in the sense that they may objectively be seen as having many similar laws and customs’. However, they said, ‘there is no sense in which those similarities combined to define a particular group of people or a particular area of land as being distinct from neighbouring groups’. Counsel then offered the following summary:

‘(a) Language: There was a group of "Noongar" languages, some of which extend east beyond the SNC # 1 claim boundary, which languages are part of a near Australia wide Pama Nyungan language family. Within that group there were in the order of 13 separate languages or dialects. Within the SNC #1 claim boundary there was also a distinctive difference in place names, which fall into two categories - the "up" and the "ing".
(b) Circumcision: The eastern boundary of the alleged Noongar society is said to have been the line beyond which Aboriginal groups did not circumcise. However the location of the circumcision line is unclear, the absence of the practice of circumcision continued northwards up the western coast of Australia into the Pilbara, and it seems some "Noongar" people may have been circumcised.
(c) Laws and customs in relation to land: There was similarity throughout the whole of the south-west and beyond. In the First Respondent's submission, the normative rules in relation to land in the south-west are essentially the same as those further north including the Pilbara and Kimberley. Even on the SNC Applicants’ case there is said to be similarity between the south-west and the Western Desert systems to the east.
(d) Moieties and kinship: There were two different moiety systems in the south-west. There is no evidence of either moiety system, nor the likely kinship system, being different from those of neighbouring groups at any particular point further north or east of the alleged Noongar society.
(e) Wagyl: Belief in mythical serpents inhabiting water are common throughout Australia, and there is no evidence of a distinctive wagyl belief common to all groups in the south-west.
(f) Spirits: Belief in spirits, including deceased ancestors, was not unique to the south-west. For example, other Aboriginal groups also regarded Europeans as returning ancestors; and other groups believed in mischievous small people ... The performance of propitiatory rituals is also common to other Aboriginal groups.
(g) Treatment of kangaroos: Groups as far away as the Western Desert may or may not have skinned kangaroos, however there is no evidence of a boundary anywhere near the ... claim boundary beyond which skinning stopped. Some groups further east also wore kangaroo skin cloaks and this may be the result of climatic factors as much as cultural ones.
(h) Clever men: Such people exist in most other Aboriginal groups outside the south-west. Indeed the word "mabarn" is also used in the north of the State.
(i) Funerals: There were different funeral practices in different parts of the south-west, and no evidence that any of those funeral practices were unique to the south-west.

(j) Respect for elders: Not unique to the south-west.

(k) Totems: There is no evidence of any unique system of totemism in the south-west at sovereignty.
(l) Use of fire: There is no evidence that the use of fire to hunt and care for country is unique to the south-west.’

410	Counsel for the State placed reliance on this summary. They said it demonstrates ‘that there are some differences in law and custom within the south-west region, and many similarities that extend beyond just the south-west corner of Western Australia. Hence there is nothing to demonstrate a set of laws and customs, shared by, and unique to "Noongar" country or "Noongar" people. To the contrary, the level at which there can be said to be the greatest similarity of law and custom is far more localised than the level of the whole south-west region.’
411	Having regard to this reliance, it is desirable immediately to say the summary appears to contain two important errors. First, I do not think the location of the circumcision line is unclear. It is a matter about which Bates and Tindale substantially agreed. I am unaware of any contrary anthropological opinion and the position of the line was confirmed during Aboriginal evidence in this case. I do not recall any evidence (as distinct from counsel’s suggestions) about the absence of circumcision extending up the coast to the Pilbara; none was cited by counsel in their submissions. No doubt it is true to say that some Noongar people ‘may have been circumcised’. However, the only reference to that possibility in the evidentiary material, I believe, is Bates’ statement about some Noongars being adopted by members of the Karratjibbin groups, and being circumcised at that time. That statement tends to confirm the significance of circumcision and non-circumcision as societal markers.
412	Second, counsel have not cited any material that supports their comment about the normative rules in relation to land in the south-west being essentially the same as those further north and similar to those in the Western Desert. I do not think there is any such material. The south-west land rules described by the early writers are quite different from those proved in De Rose v South Australia (No 2) [2005] FCAFC 110; 145 FCR 290 (‘De Rose (No 2)), a Western Desert case.
413	In any event, as counsel for the Applicants submitted in reply, the fact that some particular laws and customs may also be acknowledged and observed by other Aboriginal groups is not inconsistent with the existence of a south-west society: see Jango v Northern Territory of Australia [2006] FCA 318 at [350].
414	Counsel for the State went on to say, correctly in my opinion, that there is ‘no evidence of any overall unity or political organisation amongst the various Aboriginal groups at sovereignty. In particular there is no evidence that the Aboriginal people in the south-west of Western Australia had a sense of identity as a distinct people’.
415	Counsel for the State turned to the identification of the relevant society, or community, at sovereignty. They noted Dr Brunton’s agreement:

‘that the laws and customs under which any estate group possessed rights and interests in land and had a connection to land were not the laws and customs of any particular estate group, but were the laws and customs of larger groups of Aboriginal people ...’

On that basis, counsel said, the State ‘does not contend that one or more estate groups or bands can, of themselves, be defined as the relevant society’.

416	Counsel then mentioned Dr Brunton’s opinion that, at sovereignty, there were some 12 or 13 separate societies in the south-west – this opinion being ‘based on Dr Brunton’s assessment of the range of movement of Aboriginal people in the south-west at sovereignty’. They said:

‘Dr Brunton was unable to clearly identify those societies because of the conflicting and uncertain nature of the early observations as to group names and locations and the fact it is impossible now to know exactly what those names refer to or the basis for the names.’

417

After referring to several of the early writers, counsel submitted that ‘Dr Palmer acknowledged that small groups in the south-west could be classified as societies according to his understanding of the Yorta Yorta definition’. Dr Palmer did say that. However, it is only fair to note that he immediately added ‘it wouldn’t be an exclusive category ... the term could apply to smaller groups ... that comprised a larger social formation’. Dr Palmer’s evidence continued:

‘MR WRIGHT: So, do I understand you then to be saying that at the level of Noongar society, is that the largest level at which one could realistically classify a society in this region?

DR PALMER: According to the definition that I think we’ve agreed upon, yes.’

418	Counsel for the State went on to say:

‘The [State] submits that Aboriginal evidence as to the precise situation at sovereignty must be treated with considerable caution in this case, because of the degree of disruption to Aboriginal culture and knowledge transmission in the south-west ... and the fact, clearly disclosed in the evidence at trial, that many Aboriginal people have had regard to early records and the writings of anthropologists. Nevertheless, we note that the [State’s] submission as to the existence of a separate society in the Swan coastal plain at sovereignty is not inconsistent with the Aboriginal evidence about the Perth Metropolitan Area ... Note in particular Greg Garlett's description of the Wadjuk tribal group.’

419	In her closing submissions, counsel for the Commonwealth identified four factors which, she claimed, ‘are contrary to a finding of a single society in existence over the entire SNC claim area at sovereignty’:

‘(i) the existence of a number of dialects (or languages) in the SNC claim area which appear to accord closely in name and geographic area with "tribes" identified by Tindale (and others);

(ii) apparent differences in initiation practices;

(iii) different moiety systems in the south west; and

(iv) different burial practices.’

420

Counsel did not develop her submission in relation to any of these factors. Item (i) is certainly correct. Counsel did not identify any evidence about item (ii); nor could I find any. Item (iii) apparently depends on Bates’ comments. The evidence about (iv) is unclear. On the one hand, Dr Host noted the similarity in Collie’s description of Mokare’s burial at King George’s Sound and Moore’s description of a burial at Upper Swan. On the other hand, there may be a regional explanation for some apparent inconsistencies in the Aboriginal evidence about present-day burial practices.

421

Counsel went on:

‘Of particular relevance is the historical material indicating that groups referred to themselves (and others) by regional names such as Wills, Mineng, Yued etc, and asserted a territorial independence albeit that there was cooperation amongst neighbouring groups.

There is no evidence that supports a broad "south west" society which could be described as a "body of people forming a community or living under the same government".’

422	The quotation in the final sentence comes from Sampi v State of Western Australia [2005] FCA 777 at [1042], where French J said:

‘The identification of an Aboriginal society which can be said to have existed at the time of colonisation and which continues to exist today, united by traditional laws and customs, under which it and/or its members can be said to hold native title rights and interests is no easy matter. So much was recognised in Yorta Yorta. The use of the term "society" imports into the determination process a criterion of eligibility for the recognition of native title that is to be implied from the words of the Act and the common law in the way expounded in Yorta Yorta. It must not become a Trojan horse for the introduction of elements or criteria foreign to the requirements of the Act and the common law for the recognition of native title. The term should be applied in accordance with its ordinary meaning as ‘... body of people forming a community or living under the same government’. The relevant community must be a community which at the time of colonisation observed a body of laws and customs that continue in existence today. The continuity of the society and its laws and customs is subject to the qualification already observed allowing for the evolution of both providing that the essential continuity is maintained.’

423

Counsel for WAFIC and the local government interests made observations about some of the factors considered in relation to the question whether there was a separate Noongar society at date of sovereignty. However, they added nothing, by way of submission, as to what answer should be given to this question.

(x) Conclusions about the 1829 situation

424

As French J remarked in Sampi, it is no easy matter to identify the relevant Aboriginal society, or community, for s 223(1) purposes. One problem is that the word ‘society’ may appropriately be applied at various levels of aggregation. This was demonstrated in an exchange between Mr Wright and Dr Palmer during the course of cross-examination:

‘MR WRIGHT: Yes, so, one could talk, for example, about an Australian society, about a Western Australian society, about a Perth society and so on. Would you agree that there are different levels at which one can articulate society?

DR PALMER: Well, there would be little articulation at such a level of generalisation, wouldn’t there, because the – the term – I think it then becomes, your Honour, like a weasel word, it’s lost its innards.’’

425	Dr Palmer is correct. It is necessary to identify the level of aggregation relevant to the particular context. In the present case, the inquiry is into ‘the communal, group or individual rights and interests of Aboriginal peoples ... in relation to land or waters’ at date of settlement. So it is necessary to determine the community or group (the ‘society’, if you like), under whose laws and customs those rights and interests were held and observed. It does not matter that there may exist a smaller, or larger, group of people which may properly be regarded, for other purposes, as a ‘society’ or ‘community’.
426	The members of the ‘tribes’, noted by the early writers, and of Dr Palmer’s ‘country groups’/Dr Brunton’s ‘estate groups’, can properly be said to have constituted societies, or communities, at date of settlement. Those people lived together and shared the incidents and fortunes of life. However, it is agreed by all the expert witnesses in this case – I think consistently with the tenor of the early writings – that the normative system that bound the members of those groups was that of a larger community. The issue is: how much larger?
427	Dr Brunton expressed the opinion that there were many normative communities in the south-west at the date of settlement; he thought perhaps 12 or 13, perhaps roughly corresponding with the dialect groups. However, he was not able to cite anything in the early writings that supported that conclusion. When pressed for his reasons, he ultimately advanced two matters.
428	First, and consistently with his view about the essentiality of mutual knowledge and acknowledgment, Dr Brunton referred to the likely limits of travel in pre-settlement times. As I understood his argument, these limits would have had the effect of breaking the people of the south-west into a number of discrete communities.
429	I have no difficulty in accepting that there were travel limits in pre-settlement times. It is likely that people would have known only members of other ‘tribes’ whose land was close to their own territory. If Armstrong’s information about the Swan Valley tribes (para 385 above) is accurate and typical, regular interaction probably extended for only about 60 miles (100km) in all directions – possibly more in the open, less densely populated, parts of the claim area.
430	However, I do not see why the limits of travel would have given rise to a series of discrete communities, having fixed boundaries between them like those of the Australian States or the countries of Europe. For the Swan Valley Aborigines, life no doubt revolved around the river and the land upon which is sited the modern metropolis of Perth, with occasional contact with Aborigines at Murray River and, perhaps, quite rarely with people as far away as modern Bunbury. Presumably, however, the Murray River Aborigines also had contact with people living within a radius of about 60 miles around their area, including fairly frequent contact with those at modern Bunbury and occasional contact with people further south; and the Bunbury Aborigines with those at modern Margaret River, and so on. In the absence of any over-arching government structure, whose operations necessitated clearly-defined boundaries, I see no reason why it should be assumed that limitations of travel resulted in the creation of a series of discrete communities occupying identifiable territories.
431	It is important to note the absence of any correlation between the extent of the Swan Valley tribe’s regular contact, as reported by Armstrong, and the area in which a particular dialect was used. The Swan Valley tribes presumably used Wadjuk dialect, but their reported area of frequent contact must have contained people who used Jued/Yued, Ballardong and Pibelman dialects; possibly Wilomun and Wardandi as well.
432	Dr Brunton’s second reason was based on Bates’ observation about the existence of a patrilineal descent system in one part of the south-west and a matrilineal system in another. When it was first stated, this reason seemed to me potentially persuasive. However, Dr Brunton was unable to say what significance should be attributed to Bates’ observation. It became clear that he did not accept Bates’ distinction was factually well-founded. As recorded at para 319 above, Dr Brunton revealed he was acting on a ‘suggestion from Ian Keen and from my knowledge of the situation in other parts of Western Australia’, that ‘there may then have been a difference in terms of the rules relating to succession to property between the two areas’.
433	These are fragile bases for an hypothesis of separate societies, particularly as Dr Brunton was eventually forced to concede that, throughout the whole claim area, there were significant exceptions to what he assumed to be a universal rule of patrilineal descent. It seems from his evidence in cross-examination (para 321 above) that Dr Brunton started with the assumption that was a normative society smaller than the single Noongar community and chose the dialect group for lack of any arguable alternative (‘because we have no other bases on which we can confidently delineate a group’). In any event, the point made by counsel for the Applicants is compelling. Although Bates made a distinction between descent systems, she obviously thought it unimportant. Bates was unequivocally of the opinion that the ‘Bibbulmun Nation’, throughout its whole area (which included the whole of the claim area) ‘possessed similar customs, laws etc’; ‘they were one people, speaking one language, and following the same fundamental laws and customs’. In other words, there was a single fundamental normative system that united the whole ‘Bibbulmun Nation’.
434	In evaluating Bates’ conclusion, it is pertinent to remember the respect accorded to her writings by Dr Brunton. At page 17 of his report, Dr Brunton said: ‘Bates’ material comprises the largest available corpus of information dealing with the Aborigines of the Perth region obtained at least partly from people who were alive in the early years of European settlement – even though the oldest were only children at the time’. In cross-examination, he agreed her work was the ‘first really serious ethnography for any part of the south-west’, that ‘she was clearly interested in ... what we would describe as traditional matters’ and that he [Dr Brunton] had ‘commented very favourably ... on the standard of her fieldwork, at least comparatively’.
435	The evidence clearly establishes the existence, at the date of settlement, of a number of different dialects in the claim area. It would have been natural for speakers of a particular dialect to feel special affinity with others who spoke that dialect. It would also have been natural for them to express that affinity by using a name having regional significance; as an Englishman might refer to himself as a ‘Yorkshireman’ or ‘Cornishman’. However, there is no evidence in this case that any such affinity had normative significance. In the absence of any over-arching government, one could expect to find such evidence only by identifying substantive differences in the norms (laws and customs) operating in different dialect areas. The significant point is that there is no such evidence in the present case, and this despite the number of early writers who took an interest in the normative system governing the lives of the Aborigines with whom they came into contact.
436	I accept there is no evidence that, at date of settlement, individuals throughout the south-west were aware of the existence of all the other people in the south-west or acknowledged them as members of a single society. Counsel for the respondents argued this is a necessary ingredient of a society whose laws and customs are capable of satisfying the requirements of s 223(1) of the Act. As it seems to me, the critical question, in relation to this aspect of the case, is whether or not they are correct.
437	Referring to the statement, in Yorta Yorta at [49], that the word ‘"society" is to be understood as a body of persons united in and by its acknowledgement and observance of a body of law and customs’, counsel for the State submitted ‘it is not sufficient to simply show that certain Aboriginal people or groups of people share similar laws and customs’. Despite my invitation to them to do so, counsel did not cite any authority for that submission. The State further submitted that a ‘society’, for the purposes of the Act, requires not only ‘shared laws and customs’ but also ‘other factors which demonstrate unity and organisation’. This seems to repeat the same submission. If something else is intended, by ‘other factors’, counsel have neither identified them nor cited any authority for their imposition on native title applicants. In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ seem to have regarded common acknowledgement and observance of a body of laws and customs as a sufficient unifying factor. Certainly, as is graphically illustrated by De Rose, it is not necessary that the ‘society’ constitute a community, in the sense of all its members knowing each other and living together. If that element was required, it would constitute an additional hurdle, for native title applicants, which would be almost impossible for most of them to surmount. The task of showing the existence of a common normative system some 200 years ago is difficult enough; it would be even harder to show the extent of the mutual knowledge and acknowledgment of those who then lived under that normative system, bearing in mind the non-existence of Aboriginal writings at that time.
438	The requirement postulated by Dr Brunton, and contended for by counsel for the respondents, must be rejected. The problem now under discussion is best resolved by examining the material before the Court, especially the early writings, in order to determine whether they reveal the existence of a single normative system, operating throughout the south-west of Western Australia, and acknowledged and observed by all the people in the claim area at the time of sovereignty.
439	The King George’s Sound writers (Barker, Nind and Collie) do not help very much in relation to the existence or otherwise of a common normative system; those writers had no knowledge of Aborigines living elsewhere.
440	Lyon is also not much help. He knew about the King George’s Sound Aborigines, and noted linguistic similarities, and differences, between them and the Perth Aborigines amongst whom he lived. However, he expressed no opinion, one way or the other, about the extent of the Aboriginal community (or society) and said nothing about normative differences.
441	Armstrong’s situation is similar. He described the interaction of the Swan River ‘tribes’ with those well-removed from them, and the widespread use of the ‘mountain dialect’ for ‘purposes of a public nature or general interest’. He noted no normative differences but, also, made no comment as to whether all the Aborigines were the one community.
442	However, speaking of all parts of the Colony he had visited, from 100 miles north of Perth to King George’s Sound, Moore said ‘every thing leads to the conclusion that the inhabitants are all of one race’. Moore did not find sharp dialectical boundaries. He thought the language ‘radically the same, though spoken with a variety of dialects, gradually blending into one another’. That is consistent with the notion of over-lapping communities that I suggested at para 430 above.
443	Salvado did not offer an opinion as to whether all the south-west Aborigines were members of one community. However, it is evident from his memoirs (para 174 above) that he interested himself in the content of the ‘general laws’, which he said were ‘maintained by tradition and handed down from father to son’. So it may be significant that he did not mention any regional differences in those laws.
444	That brings me to Bates who, as already stated, thought all the people in the ‘Bibbulmun Nation’ to be ‘one people, speaking one language, and following the same fundamental laws and customs’.
445	As will appear in the next section of these reasons, most of the Aborigines who gave evidence in these cases claimed association with a group identified by a name closely corresponding with one of the dialect names mentioned by Dr Thieberger. We heard references to ‘Juat’ (also called ‘Jued’ and ‘Yued’), ‘Mineng’ (or ‘Mearnanger’), ‘Ballardong’, ‘Wilomun’ (or ‘Wilmun’), ‘Pibelmen’, ‘Wardandi’, ‘Koreng’ (or ‘Goreng’), ‘Pinjarib’, ‘Nyakinyaki’ and ‘Wadjuk’ (or ‘Whadjuk’). Particularly when account is taken of the relevant locations, these references may readily be related to nine of the eleven dialect groups identified by Dr Thieberger: Yuwat, Minang, Balardung, Wiilman, Bibbulmun, Wardandi, Goreng, Binjarub and Wajuk.
446	However, a striking feature of the evidence of the Aboriginal witnesses was that none of them treated their local name as a sufficient, or even primary, statement of their identity. Each of them strongly asserted they were ‘Noongar’, although a Noongar associated with a particular local group. Most of the witnesses contrasted Noongars, as a whole, with people, such as Wongais (or ‘Wangkayi’, who lived out towards Kalgoorlie) and Yamatji (towards Geraldton).
447	This common situation was well brought out in some exchanges between Mr Gregory Garlett and Mr Ranson:

‘MR RANSON: Now, you've said to me that you're partly a Ballardong person and partly a Wadjuk person. What are the rules about ... how a person gets to ... describe themselves like that? How do you get to be a Ballardong person or a Wadjuk person?

GREGORY GARLETT: Well, you're a descendant of those people from those areas.

MR RANSON: Yes, I think you said to Mr Hughston before - and you might have been saying this about all of Noongar country - but you said you have to have at least one parent and be born there or grow up there. Is that the same rule for being a Ballardong person or a Wadjuk person? If you've got one Ballardong parent and you're born in Ballardong, you can say you're a Ballardong person?

GREGORY GARLETT: Well, Ballardong is Noongar anyway so it's all Noongar country you're talking about ...

MR RANSON: So is that the rule, it's at least one parent and then you can say you're a Noongar person?

GREGORY GARLETT: Well, you ... can’t have Wangkayi parents and - and call yourself a Noongar.

MR RANSON: Not even one Wangkayi parent? Can you have one Wangkayi parent and call yourself a Noongar? If your father's Wangkayi can you still be a Noongar?

GREGORY GARLETT: Well, if your mother's a Noongar and your father's a Wangkayi, you can go either way. You can be a Noongar in Noongar country and you can be a Wangkayi in Wangkayi because you've got the one Wangkayi parent.

MR RANSON: And is that - if you're a person with one Wangkayi parent and one Noongar parent, is it up to you which way you go or is it up to one of your parents to decide which way you go?

GREGORY GARLETT: Them elders from those peoples will tell you. They will tell you where you - where you fit in. They'll accept you in that Wangkayi country if you're - you got one - one Wangkayi parent. And if you've got one Noongar parent, you'll get accepted in the Noongar country as well.

MR RANSON: So you can be accepted into both. If both sets of elders think it's alright, you can be both; is that right?

GREGORY GARLETT: At the one time. All depends which country you're in.’

448

Mr Garlett later likened the hypothetical case to a person who has a Japanese mother and an ‘Australian wajala [white]’ father. He thought that person might be accepted as Japanese while in Japan but Australian while in Australia. However, he contrasted that position with being a Noongar. His evidence went on:

‘All Noongars the same because they all come from that Noongar country. We've got - we've got those laws and customs in the Noongar area that tell you you belong to that area.

MR RANSON: Does it mean anything at all to say you're a Ballardong person and a Wadjuk person?

GREGORY GARLETT: Ballardong is the name of that area in that country. It's the name of that area. It's like a name, like a town name, you know, like that, like a State name. That's what it is.

MR RANSON: But it doesn't mean anything to you in terms of what kind of person you are? You're just a Noongar person?

GREGORY GARLETT: Well, be a bit funny if you started describing an area and it had no name. That's why the Noongars named all those places. They got the names here to describe those areas and tell you how far you can go this way, how far you can go that way, you know.

MR RANSON: Yes. And is that what it means? It tells you how far you can go? That's what Ballardong means, for example?

GREGORY GARLETT: Well, we know we got the right of passage in the Ballardong country because I grew up there, my parents were there.’

449	I am conscious of the danger of putting excessive weight on the evidence of contemporary Aboriginal witnesses in identifying the 1829 society. As counsel for some of the respondents have emphasised, in recent years there has been a resurgence of interest in Western Australian Aboriginal history and tradition, perhaps particularly amongst the Aborigines themselves. There has been an effort to preserve, and teach to younger people, some of the Aboriginal languages and culture. The word ‘Noongar’ has been widely used to identify the traditional language and culture of the south-west. Moreover, the witnesses who gave evidence in these cases were all aware that the Single Noongar application depends upon a finding that there was, in 1829, and is, today, a single community occupying the whole of the claim area, which community is usually called ‘Noongar’. So it is appropriate to treat with caution the evidence of the Aboriginal witnesses about their group identity.
450	Nonetheless, I was impressed with this evidence. I did not gain an impression, in relation to any of the 30 Aboriginal witnesses, that his or her evidence was tailored to suit the claim or that the identification arose out of the recent resurgence of interest in the Aboriginal traditions of south west Western Australia. As will appear from my detailed analysis of this evidence, almost all the witnesses attributed their identification as ‘Noongar’ to what they had learned as a child, mostly long before the resurgence of interest. I see no reason to doubt the truthfulness of any witness’ attribution and, indeed, it was not suggested to me by any respondent, in relation to any witness, that I should do so.
451	As will appear in the next section of my reasons, I rely heavily on this identification evidence in reaching my conclusions about the current existence of a single Noongar community in the claim area. However, I do not propose to do that in relation to the 1829 position. Too much time has passed by. None of the witnesses was able to trace the identification he or she learned as a child back to a person who is proved to have been alive in, or born shortly after, 1829. So I say no more, at this stage, than that the evidence of the Aboriginal witnesses in this case is not inconsistent with the Applicants’ case concerning the 1829 position.
452	In the end, in evaluating that case, I come back to matters about which I can be certain. I summarise them as follows:

(i) the explicit assessments of Moore and Bates, and the inference to be drawn from the silence of the other early writers in relation to the question whether or not there was a single community;
(ii) the evidence of Dr Thieberger and others as to the use of ‘one fundamental language’ throughout the claim area, albeit with regional dialectic differences;
(iii) the existence of a circumcision line, sharply separating the area in which circumcision was practised from that in which it was not;
(iv) a difference in practice, in relation to kangaroo skinning, between the people of the south-west and those outside it;
(v) the evidence of extensive ‘tribal’ interaction within the claim area, over areas of land greater than particular dialect areas;
(vi) the absence of any suggestion of normative differences, other than the dubious possibility of a distinction between patrilineal and matrilineal descent.

453

The only considerations put against a finding of a single Noongar community in 1829 were those voiced by Dr Brunton - predominantly the absence of evidence that the ‘strong commonalities in culture and language’ were ‘acknowledged by the people themselves’ and made to have ‘consequences in terms of social organisation, land tenure etc’. He thought the fact of the commonalities ‘means nothing if the groups themselves did not see these characteristics as socially significant’ (see para 261 above). As I have indicated, I think this requirement is an unwarranted addition to the test laid down in Yorta Yorta. Consequently, it would not justify me in rejecting the Applicants’ position on this aspect of the case.

454

In this section of my reasons, I have been addressing the first issue that arises in the cases before me: was there a single Noongar community in 1829? For the reasons set out above, I answer that question in the affirmative.

V Has there been a continuation of Noongar laws and customs from 1829 until today?
(i) Preliminary

455	Because of the form of the evidence that was given, it is convenient for me to consider together two questions that are logically distinct:

(a) whether the community that existed in 1829 (the single Noongar community) continued to exist over subsequent years, up until recent times, with its members continuing to acknowledge and observe at least some of the traditional laws and customs relating to land that were acknowledged and observed in 1829;
(b) whether that community continues to exist today, with members, including at least some of the Applicants, who continue to acknowledge and observe at least some of those laws and customs.

456

The evidence of the Aboriginal witnesses about subjects relevant to those issues tended to lock together what the person had learned, or experienced, as a child and the position today.

457

In addressing these questions, I am conscious of the possibility that a native title claim may fail because of a discontinuity in acknowledgement and observance of traditional laws and customs, even though there has been a recent revival of interest in them and there is current acknowledgement and observance. I have in mind cases such as Yorta Yorta and the decision of Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 (the ‘Larrakia case’). Before upholding a native title claim, the Court must be satisfied, on the balance of probabilities, of continuity of acknowledgment and observance, by the relevant community, from the date of sovereignty until the present time. Of course, there can never be direct evidence covering such a long time. However, inferences may be drawn, from evidence led at trial, concerning the situation in earlier times: see Yorta Yorta at [80] and Gumana v Northern Territory of Australia [2005] FCA 50 at [195] – [201]. In the latter case, Selway J applied the principle enunciated by Jessell MR in Hammerton v Honey (1876) 24 WR 603 at 604:

‘It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.’

458	Selway J noted (at [200]) ‘that in the case of prescription in particular, the evidentiary inference applies not just to the prescription but to the rights created pursuant to it’. He went on:

‘There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom ... This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast Yorta. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had "always" been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.’ (Citations omitted)

459

In the preceding section of these reasons, I referred only briefly to evidence given by the Aboriginal witnesses in which they identified themselves as ‘Noongars’ and mentioned community interaction. It is necessary to deal more fully with that evidence, in now determining whether the 1829 single Noongar community continued to exist, as such, after the date of settlement and continues to exist today. Although the result will be lengthy, I propose to summarise the evidence of each of the Aboriginal witnesses relevant to this point, they being arranged in the order in which they gave their oral evidence. I will then deal, more briefly, with the evidence relating to maintenance of customs and beliefs, in particular laws and customs concerning land and waters.

(ii) Community identification and interaction
(a) The Aboriginal evidence
A Mr WW (named applicant, born 1946, evidence at Jurien Bay)

460	In his witness statement, Mr WW said:

‘I am a Noongar. I "enjoy" my father’s country and I have lived my whole life as a Noongar. I was taught by my grandmother, Ollie, that Noongars go from up near Jurien Bay, all the way down to Albany and to Esperance.

I am Noongar through my father, but I am also Yamatji through my mother. This is because of where they were born and where their families have always lived. Noongars were from the South West and Yamatji’s were from up North, past Geraldton. Wongais are from Kalgoorlie way and you can tell them by their complexion, they have more grey dry skin than Noongars.

When I was younger, we knew who was Noongar through our famil