Mortimer J
This proceeding concerned overlapping native title claims by the Purnululu group and the Gajangana Jaru group over land and waters within the Purnululu National Park, in the East Kimberley, Western Australia. Mortimer J determined in a separate hearing that neither group solely held the rights and interests in a native title determination, through assessing the apical ancestors for the area.
Background
The overlap area is described as the Purnululu Disputed Area (PDA). The PDA boundaries are generally consistent with the boundaries of the Purnululu National Park, which was gazetted in 1987 and listed for World Heritage in 2003. The Gajangana Jaru applicant primarily identifies as Jaru, while the Purnululu applicant identifies mostly as Kija. The groups have disputed the traditional ownership over the PDA since 1992 when sacred objects were removed from a cave site in the PDA. The dispute relates to the apical ancestors and who holds traditional rights to the PDA country.
The Purnululu claim was lodged in 1994. It covers a larger area than the Gajangana Jaru claim, approximately 4,573 square kilometres, encompassing the whole of the PDA as well as three areas of unallocated Crown land to the north, north-west, west and south-west.
The Gajangana Jaru claim was lodged in February 2019, but the applicants were involved since 1998 as a respondent under a differently named claim. This claim is over the land and waters of the PDA, approximately 2,438 square kilometres, which lies wholly within the Purnululu application.
Ongoing mediation with the National Native Title Tribunal across decades was unsuccessful, largely attributed to lack of proper anthropological evidence, resources and legal representation. A separate hearing was ordered in March 2019 and was held on-country over three days. The hearing was said to demonstrate the continuing tension and fatigue of the two groups.
Submissions
This case was noted to have evidentiary issues, given more than twenty-five years had passed since the claims began, and key Elders had passed away. Evidence consisted of witnesses from each claim group, historical accounts from Elders, various early written evidence, and anthropological evidence.
Purnululu
The Purnululu applicant submitted that the competing claim was merely a roadblock to a consent determination, denying Jaru rights over the PDA. The applicant emphasised the importance of expert evidence in native title cases and pointed to the lack of Jaru witnesses and their inconsistencies.
Gajangana Jaru
The Gajangana Jaru applicants contended that the Jiddngarri, the first respondents in the claim, and the Gajangana Jaru claim group were substantially the same. Further, it was contended that the long disputed history of the PDA demonstrates valid concerns over who are the correct people for the PDA. Witnesses’ oral evidence was submitted to be preferred where it regards their own apical ancestors.
State
The State agreed that native title exists in the PDA. It generally supported the Purnululu applicant’s case, but expressed concern that the right people for the PDA be identified.
Decision
Mortimer J accepted aspects of the cases presented by each applicant, so neither group was completely successful (a summary of the findings is provided in [8]-[9]). It was determined that, before European settlement, the country did not have exclusive traditional ancestry. Evidence of traditional meeting sites between groups and the fact that the area is entered into from different directions supported this. Mortimer J noted the boundaries of the PDA were drawn artificially post-settlement rather than according to customary law. The PDA was thereby likely to be a meeting place possessed and used by a number of groups, and therefore could not be traced a single group [424].
It was not determined which group could speak for particular areas inside the PDA. This was left for the native title holders to resolve before a native title determination. Still also requiring resolution were: who are the correct descendants for certain ancestors; whether any Malngin descendants (another group) have rights in part of the PDA; how to amend the claims to implement the Court’s current findings.
Mortimer J made various findings about disputed familial relations. This determined which ancestors held, and hence which descendants hold, traditional rights in the PDA. This was based on the acceptance of various evidence: “growing up” traditional laws allowed children with a non-Aboriginal father to have descent-based rights through a close male family member, and the 1992 split did not change traditional law of who possessed rights, but merely altered the treatment of different families by others. Surrounding native title determinations, languages, geographical boundaries and apical ancestors were also considered to aid these findings [113].
Mortimer J extensively examined the evidence provided. It was deemed that records by non-Aboriginal persons about Country and Aboriginal people were generally not highly persuasive due to language barriers and difficulties in accurately capturing oral tradition in writing [358-359]. Her Honour stated that the Court should prferably rely on evidence given by Aboriginal persons, however, all evidence must be consistently scrutinised without giving any particular presumptive weight.
The Purnululu applicant submission that a lack of witnesses supports an inference that contentions are weaker was rejected. Further, the inconsistencies in evidence, although regarded as relevant to witness reliability, were considered understandable in the context of a historically long dispute [431].
The judgement concluded that making findings about connection to country, ‘matters central to people’s lived experience and their sense of who they are’ is arguably a ‘negative side of the native title system’ and is an ‘invidious task for a Court’ [1728]. Further, Mortimer J stated that judgments should utilise the names witnesses prefer to be called, the customary names of ancestors, and abbreviation of the names of the deceased where possible [15-17].