In this matter North J heard a separate question about the constitution of the native title holding group. There was dispute about the basis of the descent rule (whether it is cognatic or patrilineal) for Kariyarra membership and whether the language group to which an apical ancestor is reported as belonging to is determinative of rights to land. His Honour concluded that on the balance of probabilities each of the contested apical ancestors had rights and interests in land in the application area and their descendants inherit those rights by cognatic descent.
[1] In December 2016, the Court ordered that the following question be determined separately before each of the proceedings WAD 6169 of 1998 (the Kariyarra main application); WAD 232 of 2009 (the Kariyarra – Pipingarra application); and WAD 47 of 2014 (the Kariyarra – Abydos application) progressed: Who are the persons (if anyone) holding the communal rights comprising the native title claimed by the applicants in the Kariyarra Claim Area?
[7] The applicant in each application argued in favour of the formulation of the native title claim group as described in each application. That is, that the native title claim group comprises those Aboriginal persons who:
are a descendant from one or more of the apical ancestors; and
recognise themselves as having rights and interests in the Claim Area under Kariyarra traditional law and custom.
The State of Western Australia supported the applicants, save that it argued for an additional requirement for inclusion in the native title holding group, namely, recognition of a person as Kariyarra by the community.
[8] Six siblings from the Dann, Todd, and Lockyer families namely, Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith, the Indigenous respondents, opposed the above formulation of the native title holding group. The Indigenous respondents were respondents in the Kariyarra – Pipingarra application. The Court rejected an application by the applicants in that application to remove them as respondents: TR (Deceased) on behalf of the Kariyarra Pippingarra People v State of Western Australia [2016] FCA 1158. The Indigenous respondents are descendants from Tommy Anderson. They disputed that the other apical ancestors, other than Maggie, were Kariyarra and entitled to rights to land. Although the Indigenous respondents were not respondents in the other two applications, the arguments and reasoning apply equally to all three applications.
[11] The applicants relied on the expert evidence of the anthropologist, Dr Kingsley Palmer. He wrote an initial report filed in December 2013 (the Palmer 2013 report), a further supplementary report filed in September 2015 relating to the Kariyarra – Abydos application area (the Palmer 2015 report), and a responding report dated April 2016 but filed in January 2017 (the Palmer 2017 report).
[12] The Indigenous respondents relied on the expert evidence of the anthropologist Dr Phillip Clarke. [13] On 22 and 23 May 2017, Dr Palmer and Dr Clarke participated in a conference of experts conducted by Registrar Herrmann in an attempt to narrow the issues in dispute between the parties. An agreed written record of the result of that conference was received in evidence. [15] The parties agreed that an expert report dated February 2012, written by the anthropologist Dr John Morton, form part of the evidence without Dr Morton being called to give oral evidence. The circumstances in which the report was commissioned are set out in a judgment of the Court: Roberts v State of Western Australia [2010] FCA 1483.
[19] The first matter his Honour addressed was whether the language group to which the apical ancestor is reported as belonging is determinative of rights to land. The experts agreed that it is not. [28] There was no dispute about this matter between the experts. The record of the conference of the experts stated that ‘identity group names were not at sovereignty, and are not today, determinative of rights to country. Rather, rights to country were and are gained by reference to a structured, principled system including descent.
Are rights to land acquired through patrilineal or cognatic descent?
[33] The applicants contended that rights to land were acquired by one generation from another by cognatic descent – through either the patriline or the matriline. [34] The Indigenous respondents contended that under traditional laws and customs of the Kariyarra people rights to land could only be acquired, subject to one exception, by descent down the patriline. The exception applied when the father was a non-Aboriginal man. In that event, a Kariyarra person acquired rights to land through their mother. But that matrilineal descent applied to that generation alone. Paragraphs [35] – [52] of the reasons for judgment recount the evidence given by both the applicants and the indigenous respondents.
[79] Dr Clarke was instructed to report on the connection of the Indigenous respondents to Kariyarra country. He addressed that issue in five pages of his 2015 report. Most of the balance of the report of 54 pages was focused on the question of whether the applicants were entitled to rights in Kariyarra country. [82] Dr Clarke asserted that the basis for membership was determined by descent along the male line and also reported that in spite of the importance of deriving identity from the father’s country, it was recognised that some secondary rights came through the mother.
[84] Dr Palmer responded to the Clarke 2015 report in the Palmer 2017 report. On the question of whether descent was patrilineal with limited exceptions or cognatic, Dr Palmer made three points:
According to the account provided to me, rights to country could be gained through either matri or patrifiliation.
He recalled the reference in the Palmer 2013 report to the debate among anthropologists about the acquisition of rights to land which followed the work of Radcliffe-Brown and the more accepted view that patrilineal descent was not the only means of acquiring rights to land. Dr Palmer observed that Dr Clarke relied on Radcliffe-Brown’s view without reference to or engagement with the different views expressed by later anthropologists involved in that debate.
Dr Palmer raised questions about the exception rule propounded by Dr Clarke as follows: The ‘exception rule’ as defined by Dr Clarke is particularly significant for the descendants [sic] of Tommy Anderson. For this now extended family all present-day descendants [sic] trace ancestry to Tommy’s daughter Mary Yinpung (aka Mary Todd). Thus if the rule of exclusive patrilineal descent were to be applied, none of the descendants [sic] of Tommy Anderson could be regarded as claimants.
[115] The Morton report addressed the culture and rules of the Kariyarra people at sovereignty by reference to the early writers. Dr Morton gave particular attention to the work of Radcliffe-Brown 1913, but also discussed later ethnographic work of the Wilson (Wilson 1961), and of Palmer in the 1970s as well as the later interpretations by Peter Sutton. Of particular relevance to the present discussion, Dr Morton said:
35. Radcliffe-Brown's general model of Aboriginal rights and interests in land, initially worked out in relation to his Pilbara fieldwork, was subject to much criticism during the second half of the twentieth century. Anthropologists now generally maintain that:
his use of concepts, such as horde and clan, were confused and confusing;
he sometimes ignored, sidelined or dismissed counter-evidence;
he increasingly tended towards abstraction and oversimplification;
his original data were of relatively poor quality;
his generalisations were far from fully supported by better quality data from around Australia.
36. There is no doubt that Radcliffe-Brown accurately identified patrilineal descent as a key principle of Kariyarra group formation. However, his overwhelming concentration on the patrilineal clan as the land-holding unit and the estate as the unit of landed property would now be regarded as inadequate. Matters that Radcliffe-Brown treated as somewhat peripheral (like rights in mother's country) or seemingly irrelevant (such as conception site or 'birthplace', or being welcome in the country of a spouse) might now be explored as vital aspects of the larger system of landed rights and interests. [footnotes omitted].
[116] Dr Morton expressed the view at [48] that recruitment was by bilateral inheritance, that is to say, one could belong to the land owning group through either parent or both. North J stated at [117] that ‘it is significant that these views were expressed following consultation by Dr Morton with the Indigenous respondents and their families.
[118] On this issue North J concluded that:
The evidence of the Aboriginal witnesses is of first importance in determining the content of traditional laws and customs. The Aboriginal witnesses called by the applicants and the Indigenous respondents who gave evidence, when properly understood, was all to the same effect, namely, that rights to land are acquired through mother or father … Dr Clarke’s interpretation of the evidence of Ms Irene Roberts and Ms E Williams to the opposite effect cannot be sustained. The interpretation raised in Clarke 2017 report in reply, for the first time four years after the evidence was given, indicates a propensity to advocate for the Indigenous respondents’ case rather than an attempt to provide independent expert advice.
[120] North J considered that Dr Palmer’s experience with the Kariyarra people and the Pilbara Aboriginal culture extended back to the 1970s and he spent much longer investigating the current issues than Dr Clarke. [119] North J held that the expert evidence of Dr Palmer and Dr Morton supports the evidence of the Aboriginal witnesses. North J found that their evidence should be preferred to the evidence of Dr Clarke where there is a conflict concerning the descent rule for acquiring rights to land. [125] North J was satisfied on the balance of probabilities that under the traditional law of the Kariyarra people, rights to land were and are acquired on the basis of cognatic descent.
[21] North J considered the evidence in relation to each of the contested apical ancestors, namely, Dougal Robinson, Puyubungu, Yanki Williams, Topsy McKenna, Fanny, Nyitji, Pontroy, Wirtinpangu and Jinapi. [22] His Honour concluded that, on the balance of probabilities, each of the contested apical ancestors had rights and interests in the land in the application area, and their descendants by cognatic descent inherit those rights and interests.
General observations about the approach to evidence
[282] At sovereignty, the traditional laws and customs governing Kariyarra society were passed down orally from generation to generation. There are no contemporary written records from that era. As time went on, various observers, such as pastoralists, government officials and missionaries, made written accounts of where people lived, what they believed, and how they were connected to the land. Anthropologists took an interest in particular communities. But that historical and anthropological material, as has been observed earlier in these reasons for judgment, was of varying quality. Where people lived on or near boundaries of different groups, the identity and rights to land were sometimes confusing and ambiguous to the outsider. People who held multiple identities and rights across boundaries could be recorded as linked to one rather than another group. Then, whilst the tradition of handing down information from generation to generation continued, the communities were disrupted by the policies of the new settlers. Children were removed to missions and orphanages where policies prevented them acquiring cultural knowledge and language. In the result, their later accounts were fragmentary.
[283] Notwithstanding these challenges: family and cultural history was passed down from the elders to succeeding generations in a continuation of the traditions of the people. They learnt about the place of their family in the wider social order and learnt of the protocols that governed the way they lived and related to each other and to their country. [284] In the present case, the evidence of all of the Aboriginal witnesses, both for the applicants and the Indigenous respondents, was fundamental to the understanding of the way rights to land were acquired. The evidence of the applicants’ witnesses was largely unchallenged in cross-examination on those issues. It was inherently credible.
Should the indigenous respondents be found not to be part of the Kariyarra people?
[25] North J rejected the argument advanced by the applicants’ that the Indigenous respondents should be found not to be part of the Kariyarra society because, by their conduct opposing these applications they have demonstrated that they do not adhere to the traditional laws and customs acknowledged by that society. His Honour reflected that the basis of power to exclude the Indigenous respondents from the native title claim group depends on the laws and customs of the Kariyarra people, and whether those laws and customs allow for exclusion of those who challenge the constitution of the group.
No evidence was led on the issue and North J could not infer that the Kariyarra people have traditional laws and customs which excommunicate dissidents in such circumstances as the present. At [352]: ‘The future relations between the Kariyarra people and the Indigenous respondents must be dealt with by the Kariyarra people in accordance with the rules applicable to the circumstances rather than by the Court in this proceeding.’
North J concluded at [355]:
There is no further justification for the Indigenous respondents to remain respondents in the Kariyarra – Pipingarra application. Their interests are wholly protected as members of the native title claim group. An order will be made that they be removed as respondents from the Kariyarra – Pipingarra application. Further, in the Kariyarra – Pipingarra application there will be an order that the Indigenous respondents be removed as respondents, subject to any order for costs which might be made against them if any application of that nature is brought.
[349] His Honour considered there was little between the positions of the parties on the issue of community recognition raised by the State. The applicants accepted in final submissions that an element of community recognition was necessary but suggested that it was encapsulated in their single recognition criterion. The formulation proffered by the State is supported by the evidence and is not in substance inconsistent with the position of the applicants or the Indigenous respondents. North J held that the State’s formulation should be adopted in the answer to the separate question.
[357] The answer to the separate question provided by the Court follows the draft proposed by the applicants with the addition of the second criterion of recognition proposed by the State. In order to more accurately reflect these reasons for judgment, the answer proposed in [1(a)] of the applicants’ draft adds the words ‘by cognatic descent’ after the word ‘descendant’.
[358] As the applicants foreshadowed a potential application for costs, North J made orders that the costs of the proceeding be reserved and directed that the applicants and the State file a proposed determination within a timeframe to be discussed.