FEDERAL COURT OF AUSTRALIA

CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 

Citation:	CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204	
		
Parties:	CG (DECEASED), JOHN ASHWIN, GLORIA FOGARTY, PG (DECEASED), OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), AL (DECEASED), HL (DECEASED), RL (DECEASED), WL (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR) and FRANK WALSH (SNR) v STATE OF WESTERN AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, SHIRE OF CUE, SHIRE OF MENZIES, SHIRE OF MOUNT MAGNET, ACVE HOLDINGS PTY LTD, BAGIRA PTY LTD (WYDGEE STATION), BERKSHIRE VALLEY NOMINEES PTY LTD, TANIA ROSLYN CHITTARA (BIMBIJY STATION), GREGORY JOHN COWLEY (OUDABUNNA), ROSLYN DOREEN COWLEY (OUDABUNNA), WILLIAM TERRENCE COWLEY (OUDABUNNA), CROWBAR CONTRACTORS PTY LTD, REBECCA MARY DAVIES (MARANALGO STATION), ROGER PAUL DAVIES (MARANALGO STATION), EDAH PASTORAL COMPANY PTY LTD (EDAH STATION), GREGORY SHAYNE FRENCH (BIMBIJY STATION), GUYMON PTY LTD, LAURENCE FREDERICK AND CATHERINE MARY JENSEN, ADRIAN JAMES MORRISSEY, PETER JOHN MORRISSEY, ANDREW JOHN AND JAQUELINE ANDREA MOSES, HE AND RG MOSES (HY BRAZIL STATION), MURRUM PASTORAL CO PTY LTD, GRAEME LAWRENCE NEWTON (PULLAGAROO STATION), PASTORAL EXPORTS PTY LTD (MOUROUBRA STATION), ELIZABETH ANN PILKINGTON (KIRKALOCKA STATION), GEOFFREY BRIAN PILKINGTON (KIRKALOCKA STATION), RANGELAND RED PTY LTD, CM AND GJ SCOTT (BOODANOO STATION), CM, GJ, LV, RW AND WJ SCOTT (WYNYANGOO STATION), E, W, C AND I SCOTT (NARNDEE STATION), GREGORY AND ROBERT SCOTT (WONDINONG STATION), LESLEY VALMA SCOTT, PAUL ALEXANDER AND KELLIE ANNE STARICK, WAGGA WAGGA STATION PTY LTD, JOHN THOMAS WAINWRIGHT (NALBARRA STATION), KAREN JOY WAINWRIGHT (NALBARRA STATION), WESTAG HOLDINGS PTY LTD (WINDIMURRA STATION), JANET GAYNOR WINTER (PULLAGAROO STATION), AUSTRALIAN WILDLIFE CONSERVANCY, YAMATJI MARLPA ABORIGINAL CORPORATION and TELSTRA CORPORATION LTD

JOHN ASHWIN, GLORIA FOGARTY, OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), LH (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR), FRANK WALSH (SNR) v STATE OF WESTERN AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, SHIRE OF MOUNT MARSHALL, THE SOUTH WEST ABORIGINAL LAND AND SEA COUNCIL ABORIGINAL CORPORATION, ASHLEY WILLIAM DOWDEN, AUSTRALIAN WILDLIFE CONSERVANCY, BERKSHIRE VALLEY NOMINEES PTY LTD, GREGORY JOHN COWLEY, ROSLYN DOREEN COWLEY, WILLIAM TERRENCE COWLEY, CROWBAR CONTRACTORS PTY LTD, JOHN FORREST DUNNE, MARILYN DALE DUNNE, EDAH PASTORAL COMPANY PTY LTD, GUYMON PTY LTD, CATHERINE MARY JENSEN, LAURENCE FREDERICK JENSEN, ADRIAN JAMES MORRISSEY, KAREN DIANE MORRISSEY, PETER JOHN MORRISSEY, HEATHER ELIZABETH MOSES, PASTORAL EXPORTS PTY LTD, ELIZABETH ANN PILKINGTON, GEOFFREY BRIAN PILKINGTON, RANGELAND RED PTY LTD, GREGORY ROBERT SCOTT, LESLEY VALMA SCOTT, TANIA ROSLYN FRENCH AND GREGORY SHAYNE FRENCH, WAGGA WAGGA STATION PTY LTD, ABALONE (WA) PTY LTD, COVENTRY ENTERPRISES PTY LTD, JOHN CALEGARI, SILVER LAKE RESOURCES LIMITED 

File numbers:	WAD 6123 of 1998
WAD 100 of 2012	
		
Judge:	BARKER J	
		
Date of judgment:	12 March 2015	
		
Catchwords:	NATIVE TITLE – application for determination of native title – whether native title rights exist – whether claim area part of traditional country of claimants – whether claimants descendants of ancestors who had rights and interests in claim area – whether claimed rights and interests traditional – whether claimants have maintained connection with claim area by traditional laws and customs – if native title rights did exist whether various acts extinguished native title rights and interests – extent of any extinguishment of native title rights and interests 	
		
Legislation:	Aborigines Act 1905 (WA)
Cemeteries Act 1897 (WA) s 10, s 14
Forests Act 1918 (WA) s 26, s 29, s 40
Goldfields Act 1886 (WA) s 10(1)
Goldfields Act 1895 (WA) s 32
Land Act 1898 (WA) s 39, s 39(8), s 39(10), s 39(15), s 41A, s 152, s 153, s 153A 
Land Act 1933 (WA) s 29, s 32, s 33, s 33(3), s 116, s 117
Land Act Amendment Act 1904 (WA) s 8
Land Act Amendment Act 1905 (WA) s 10
Land Act Amendment Act 1960 (WA) s 2
Land Administration Act 1997 (WA) s 3(1), s 9, s 41, s 46, s 177, s 278
Local Government Act 1960 (WA) s 294A
Local Government Act Amendment Act (No 2) 1975 (WA)
Main Roads Act 1930 (WA)
Mineral Lands Act 1892 (WA) s 12
Mining Act 1904 (WA) s 42, s 48, s 115, s 117, s 276
Mining Act 1978 (WA) s 27, s 29(1), s 29(2), s 29(7)(b), s 71, s 80, s 80(1), s 83, s 105B, s 116(1), s 123, s 125A, Sch 2 cl 2
Native Administration Act 1905 (WA)
Native Title Act 1993 (Cth) s 13, s 15, s 19, s 22F, s 22H, s 22H(1)(d), s 22H(1)(e), s 22H(2), s 22H(2)(c), s 23B, s 23B(7), s 23C(2), s 23E, s 24IC, s 24ID(1), s 24KA, s 24KA(2), s 24LA(1)(b)(vii), s 24MA, s 24MB, s 24MB(1), s 24MD, s 24MD(2), s 24MD(2)(b), s 24MD(2A), s 24MD(3), s 24MD(6A), s 24MD(6B), s 24OA, s 26(1), s 26(1)(c)(iii), s 26(1)(c)(iii)(A), s 26(1)(c)(iii)(B), s 26D, s 29, s 29(3),  s 47, s 47(1)(b)(i), s 47(1)(b)(ii), 47(1)(b)(iii), s 47A, s 47A(1), s 47A(1)(b)(ii), s 47A(1)(c), s 47A(2), s 47B, s 47B(1)(b), s 47B(1)(b)(i), s 47B(1)(b)(ii), s 47B(1)(c), s 47B(3), s 61A, s 61A(2), s 61A(3), s 82(1), s 190C, s 223, s 223(1), s 223(1)(b), s 223(1)(c), s 225, s 225(c), s 225(d), s 228(4), s 232A, s 232A(2)(e), s 233, s 251D, s 253, s 253(e), Pt 2 Div 3 Subdiv I, Subdiv M, Subdiv P
Native Title Amendment Act 1998 (Cth)
Petroleum Act 1936 (WA) s 9
Petroleum and Geothermal Energy Resources Act 1967 (WA) s 9
Racial Discrimination Act 1975 (Cth)
Road Districts Act 1919 (WA)
Titles (Validation) and the Native Title (Effect of Past Acts) Act 1995 (WA) s 5, s 9, s 12A, s 12J, s 12M
Transfer of Land Act 1893 (WA) s 145, s 145(1)(a), s 145(2), s 145(3)
Wildlife Conservation Act 1950 (WA) s 22, s 23

Land Regulations 1863 (WA)
Land Regulations 1882 (WA) reg 29
Land Regulations 1887 (WA) reg 32, reg 32(j), reg 32(n)
Land Regulations 1905 (WA) reg 2, reg 5
Mining Regulations 1925 (WA)

Western Australia Constitution Act 1890 (UK) s 3 	
		
Cases cited:	AB (deceased) (on behalf of the Ngarla people) v State of Western Australia (No 4) [2012] FCA 1268; (2012) 300 ALR 193
Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1
Anaconda Nickel Ltd v Western Australia [2000] NNTTA 366; (2000) 165 FLR 116
Banjima People v State of Western Australia (No 2) [2013] FCA 868; (2013) 305 ALR 1
Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84
Bolton v Clutterbuck [1955] SASR 253
Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154; (2012) 208 FCR 505
Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2013] FCAFC 18
Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506
Commonwealth of Australia v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171
Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9
Daniel v State of Western Australia [2003] FCA 666
Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254
De Rose v State of South Australia [2002] FCA 1342
De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290
Eric Preston Pty Ltd v Euroz Securities Ltd [2011] FCAFC 11; (2011) 274 ALR 705
Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96
Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32
Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516
Griffiths v Northern Territory of Australia [2006] FCA 903; (2006) 165 FCR 300
Griffiths v Northern Territory of Australia [2007] FCAFC 178; (2007) 165 FCR 391
Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457
Gumana v Northern Territory of Australia [2007] FCAFC 23; (2007) 158 FCR 349
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1 
Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150
Kingham v Sutton [2002] FCA 506; (2002) 114 IR 137
Kogolo v State of Western Australia [2011] FCA 1481
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Mason v Tritton (1994) 34 NSWLR 572
Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422
Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148
Neowarra v State of Western Australia [2003] FCA 1402
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442
North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd [1971] 2 NSWLR 150
Pawson v Director General, Department of Mines and Petroleum [2012] WAMW 13
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Risk v Northern Territory of Australia [2006] FCA 404 
Rubibi Community v State of Western Australia (No 4) [2004] FCA 1019; (2004) 138 FCR 536
Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 
Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; (2010) 266 ALR 537
Sampi v State of Western Australia [2005] FCA 777
State of Western Australia v Gordon [2010] NNTTA 152; (2010) 258 FLR 168
State of Western Australia v Graham on behalf of the Ngadju people [2013] FCAFC 143; (2013) 305 ALR 452
State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; (2004) 207 ALR 539
The Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland [2001] FCA 414; (2001) 108 FCR 453
The State of Western Australia v Sebastian [2008] FCAFC 65; (2008) 173 FCR 1
Ward v State of Western Australia (1998) 159 ALR 483
Western Australia v Brown [2014] HCA 8; (2014) 306 ALR 168
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Yarmirr v Northern Territory [2001] HCA 56; (2001) 208 CLR 1 	
		
Date of hearing:	1-4 November 2010, 23-27 July 2012, 10-14 September 2012, 3 April 2013	
		
Date of last extinguishment submissions:	27 March 2013	
		
Date of last further submissions requested by the Court:	28 March 2013	
		
Place:	Perth	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	1163	
		
Counsel for the Claimants:	Mr VB Hughston SC, Ms T Jowett	
		
Solicitor for the Claimants:	Yamatji Marlpa Aboriginal Corporation	
		
Counsel for the State of Western Australia:	Mr GJ Ranson, Ms AC Warren	
		
Solicitor for the State of Western Australia:	State Solicitor’s Office	
		
Counsel for the Pastoral Respondents:	Mr J Graham	
		
Solicitor for the Pastoral Respondents:	Cornerstone Legal (until 20 June 2013)	

IN THE FEDERAL COURT OF AUSTRALIA		
WESTERN AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	WAD 6123 of 1998	
 
BETWEEN:	CG (DECEASED), JOHN ASHWIN, GLORIA FOGARTY, PG (DECEASED), OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), AL (DECEASED), HL (DECEASED), RL (DECEASED), WL (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR) and FRANK WALSH (SNR)
Claimants
	
AND:	STATE OF WESTERN AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

SHIRE OF CUE, SHIRE OF MENZIES, SHIRE OF MOUNT MAGNET
Third Respondents

ACVE HOLDINGS PTY LTD, BAGIRA PTY LTD (WYDGEE STATION), BERKSHIRE VALLEY NOMINEES PTY LTD, TANIA ROSLYN CHITTARA (BIMBIJY STATION), GREGORY JOHN COWLEY (OUDABUNNA), ROSLYN DOREEN COWLEY (OUDABUNNA), WILLIAM TERRENCE COWLEY (OUDABUNNA), CROWBAR CONTRACTORS PTY LTD, REBECCA MARY DAVIES (MARANALGO STATION), ROGER PAUL DAVIES (MARANALGO STATION), EDAH PASTORAL COMPANY PTY LTD (EDAH STATION), GREGORY SHAYNE FRENCH (BIMBIJY STATION), GUYMON PTY LTD, LAURENCE FREDERICK AND CATHERINE MARY JENSEN, ADRIAN JAMES MORRISSEY, PETER JOHN MORRISSEY, ANDREW JOHN AND JAQUELINE ANDREA MOSES, HE AND RG MOSES (HY BRAZIL STATION), MURRUM PASTORAL CO PTY LTD, GRAEME LAWRENCE NEWTON (PULLAGAROO STATION), PASTORAL EXPORTS PTY LTD (MOUROUBRA STATION), ELIZABETH ANN PILKINGTON (KIRKALOCKA STATION), GEOFFREY BRIAN PILKINGTON (KIRKALOCKA STATION), RANGELAND RED PTY LTD, CM AND GJ SCOTT (BOODANOO STATION), CM, GJ, LV, RW AND WJ SCOTT (WYNYANGOO STATION), E, W, C AND I SCOTT (NARNDEE STATION), GREGORY AND ROBERT SCOTT (WONDINONG STATION), LESLEY VALMA SCOTT, PAUL ALEXANDER AND KELLIE ANNE STARICK, WAGGA WAGGA STATION PTY LTD, JOHN THOMAS WAINWRIGHT (NALBARRA STATION), KAREN JOY WAINWRIGHT (NALBARRA STATION), WESTAG HOLDINGS PTY LTD (WINDIMURRA STATION), JANET GAYNOR WINTER (PULLAGAROO STATION)
Fourth Respondents

AUSTRALIAN WILDLIFE CONSERVANCY
Fifth Respondent

YAMATJI MARLPA ABORIGINAL CORPORATION
Sixth Respondent

TELSTRA CORPORATION LTD
Seventh Respondent

JUDGE:	BARKER J	
DATE OF ORDER:	12 MARCH 2015	
WHERE MADE:	PERTH	

THE COURT ORDERS THAT:

1.	The Court will hear from the parties as to the terms of the final orders to be made.
2.	If the State wishes to submit that any order other than an order dismissing the proceeding should be made, it shall file and serve a draft order and submissions in support on or before 26 March 2015.
3.	If any such submission is made by the State, the applicants have leave to file and serve responding submissions on or before 9 April 2015.
4.	In that event, the matter be listed for final hearing on 10 April 2015 at 9:15am.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
WESTERN AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	WAD 100 of 2012	
 
BETWEEN:	JOHN ASHWIN, GLORIA FOGARTY, OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), LH (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR), FRANK WALSH (SNR) 
Claimants
	
AND:	STATE OF WESTERN AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

SHIRE OF MOUNT MARSHALL 
Third Respondent

SOUTH WEST ABORIGINAL LAND AND SEA COUNCIL ABORIGINAL CORPORATION
Fourth Respondent

ASHLEY WILLIAM DOWDEN, AUSTRALIAN WILDLIFE CONSERVANCY, BERKSHIRE VALLEY NOMINEES PTY LTD, GREGORY JOHN COWLEY (OUDABUNNA), ROSLYN DOREEN COWLEY (OUDABUNNA), WILLIAM TERRENCE COWLEY (OUDABUNNA), CROWBAR CONTRACTORS PTY LTD, JOHN FORREST DUNNE, MARILYN DALE DUNNE, EDAH PASTORAL COMPANY PTY LTD, GUYMON PTY LTD, CATHERINE MARY JENSEN, LAURENCE FREDERICK JENSEN, ADRIAN JAMES MORRISSEY, KAREN DIANE MORRISSEY, PETER JOHN MORRISSEY, HEATHER ELIZABETH MOSES, PASTORAL EXPORTS PTY LTD, ELIZABETH ANN PILKINGTON (KIRKALOCKA STATION), GEOFFREY BRIAN PILKINGTON (KIRKALOCKA STATION), RANGELAND RED PTY LTD, GREGORY ROBERT SCOTT, LESLEY VALMA SCOTT, TANIA ROSLYN FRENCH AND GREGORY SHAYNE FRENCH, WAGGA WAGGA STATION PTY LTD
Fifth Respondents

ABALONE (WA) PTY LTD, COVENTRY ENTERPRISES PTY LTD, JOHN CALEGARI, SILVER LAKE RESOURCES LIMITED 
Sixth Respondents	

JUDGE:	BARKER J	
DATE OF ORDER:	12 MARCH 2015	
WHERE MADE:	PERTH	

THE COURT ORDERS THAT:

1.	The Court will hear from the parties as to the terms of the final orders to be made.
2.	If the State wishes to submit that any order other than an order dismissing the proceeding should be made, it shall file and serve a draft order and submissions in support on or before 26 March 2015.
3.	If any such submission is made by the State, the applicants have leave to file and serve responding submissions on or before 9 April 2015.
4.	In that event, the matter be listed for final hearing on 10 April 2015 at 9:15am.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
WESTERN AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	WAD 6123 of 1998

BETWEEN:	CG (DECEASED), JOHN ASHWIN, GLORIA FOGARTY, PG (DECEASED), OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), AL (DECEASED), HL (DECEASED), RL (DECEASED), WL (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR) and FRANK WALSH (SNR)
Claimants
	
AND:	STATE OF WESTERN AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

SHIRE OF CUE, SHIRE OF MENZIES, SHIRE OF MOUNT MAGNET
Third Respondents

ACVE HOLDINGS PTY LTD, BAGIRA PTY LTD (WYDGEE STATION), BERKSHIRE VALLEY NOMINEES PTY LTD, TANIA ROSLYN CHITTARA (BIMBIJY STATION), GREGORY JOHN COWLEY, ROSLYN DOREEN COWLEY, WILLIAM TERRENCE COWLEY, CROWBAR CONTRACTORS PTY LTD, REBECCA MARY DAVIES (MARANALGO STATION), ROGER PAUL DAVIES (MARANALGO STATION), EDAH PASTORAL COMPANY PTY LTD (EDAH STATION), GREGORY SHAYNE FRENCH (BIMBIJY STATION), GUYMON PTY LTD, LAURENCE FREDERICK AND CATHERINE MARY JENSEN, ADRIAN JAMES MORRISSEY, PETER JOHN MORRISSEY, ANDREW JOHN AND JAQUELINE ANDREA MOSES, HE AND RG MOSES (HY BRAZIL STATION), MURRUM PASTORAL CO PTY LTD, GRAEME LAWRENCE NEWTON (PULLAGAROO STATION), PASTORAL EXPORTS PTY LTD (MOUROUBRA STATION), ELIZABETH ANN PILKINGTON, GEOFFREY BRIAN PILKINGTON, RANGELAND RED PTY LTD, CM AND GJ SCOTT (BOODANOO STATION), CM, GJ, LV, RW AND WJ SCOTT (WYNYANGOO STATION), E, W, C AND I SCOTT (NARNDEE STATION), GREGORY AND ROBERT SCOTT (WONDINONG STATION), LESLEY VALMA SCOTT, PAUL ALEXANDER AND KELLIE ANNE STARICK, WAGGA WAGGA STATION PTY LTD, JOHN THOMAS WAINWRIGHT (NALBARRA STATION), KAREN JOY WAINWRIGHT (NALBARRA STATION), WESTAG HOLDINGS PTY LTD (WINDIMURRA STATION), JANET GAYNOR WINTER (PULLAGAROO STATION)
Fourth Respondents

AUSTRALIAN WILDLIFE CONSERVANCY
Fifth Respondent

YAMATJI MARLPA ABORIGINAL CORPORATION
Sixth Respondent

TELSTRA CORPORATION LTD
Seventh Respondent

JUDGE:	BARKER J	
DATE:	12 MARCH 2015	
PLACE:	PERTH	

IN THE FEDERAL COURT OF AUSTRALIA		
WESTERN AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	WAD 100 of 2012	
 
BETWEEN:	JOHN ASHWIN, GLORIA FOGARTY, OLLIE GEORGE, OLIVE GIBSON, IH (DECEASED), LH (DECEASED), DES LITTLE, DES THOMPSON, NANCY WALLAM, FRANK WALSH (JNR), FRANK WALSH (SNR) 
Claimants
	
AND:	STATE OF WESTERN AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

SHIRE OF MOUNT MARSHALL 
Third Respondent

SOUTH WEST ABORIGINAL LAND AND SEA COUNCIL ABORIGINAL CORPORATION
Fourth Respondent

ASHLEY WILLIAM DOWDEN, AUSTRALIAN WILDLIFE CONSERVANCY, BERKSHIRE VALLEY NOMINEES PTY LTD, GREGORY JOHN COWLEY, ROSLYN DOREEN COWLEY, WILLIAM TERRENCE COWLEY, CROWBAR CONTRACTORS PTY LTD, JOHN FORREST DUNNE, MARILYN DALE DUNNE, EDAH PASTORAL COMPANY PTY LTD, GUYMON PTY LTD, CATHERINE MARY JENSEN, LAURENCE FREDERICK JENSEN, ADRIAN JAMES MORRISSEY, KAREN DIANE MORRISSEY, PETER JOHN MORRISSEY, HEATHER ELIZABETH MOSES, PASTORAL EXPORTS PTY LTD, ELIZABETH ANN PILKINGTON, GEOFFREY BRIAN PILKINGTON, RANGELAND RED PTY LTD, GREGORY ROBERT SCOTT, LESLEY VALMA SCOTT, TANIA ROSLYN FRENCH AND GREGORY SHAYNE FRENCH, WAGGA WAGGA STATION PTY LTD
Fifth Respondents

ABALONE (WA) PTY LTD, COVENTRY ENTERPRISES PTY LTD, JOHN CALEGARI, SILVER LAKE RESOURCES LIMITED 
Sixth Respondents	

JUDGE:	BARKER J	
DATE:	12 MARCH 2015	
place:	PERTH	

TABLE OF CONTENTS
NATURE OF PROCEEDING AND ISSUES	[1]	
CONNECTION ISSUES – INTRODUCTION	[17]	
Inferences	[17]	
First contact	[18]	
Ethnographic material	[19]	
Introduction to claimants’ evidence	[21]	
Outline of Dr Choo’s evidence	[42]	
Outline of Mr Robinson’s evidence	[75]	
Outline of Dr Brunton’s evidence	[84]	
Expert anthropologists’ conference	[90]	
WAS THE CLAIM AREA BADIMIA COUNTRY AT SOVEREIGNTY?	[107]	
Claimants’ primary submissions	[111]	
State’s submissions	[112]	
Claimants’ reply submissions	[113]	
Consideration	[114]	
Summary of sovereignty country finding	[208]	
WERE THE APICAL ANCESTORS BADIMIA PEOPLE?	[210]	
Mary Assil and Timothy Benjamin	[215]	
Frances (Mary) and John Bynder	[237]	
Albert Neebrong and Dinah, and Uanda and Galena (Lena)	[244]	
Bilygwi and Yilayajambin	[260]	
Ninghan Billy and Ninghan Freddie	[280]	
Polly Little	[283]	
Lisa Martin	[290]	
Topsy	[297]	
Eva Renie	[305]	
Old Julia	[315]	
Lizzie aka Juumbi	[321]	
Other apical ancestors	[332]	
Summary of apical ancestor findings	[336]	
ARE THE CLAIMED RIGHTS AND INTERESTS POSSESSED UNDER TRADITIONAL BADIMIA LAWS AND CUSTOMS?	[340]	
What are the s 223(1) requirements for proving native title?	[342]	
What rights and interests do the claimants claim to possess under their laws and customs?	[363]	
Do those claimed rights and interests arise under “traditional” laws and customs?	[368]	
Claimants’ primary submissions	[368]	
State’s submissions	[382]	
Claimants’ reply submissions	[395]	
The “pleading” point	[399]	
Consideration of substantive question	[410]	
Summary of finding whether “traditional” laws and customs	[434]	
HAVE THE CLAIMANTS MAINTAINED A CONNECTION WITH THE CLAIM AREA BY TRADITIONAL LAW AND CUSTOM?	[436]	
State’s submissions	[439]	
Claimants’ submissions	[451]	
Consideration	[458]	
Summary of finding as to continuity	[493]	
CONCLUSION ON CONNECTION ISSUES	[495]	
EXTINGUISHMENT ISSUES - INTRODUCTION	[497]	
General principles	[500]	
Relevance of evidence of usage of land	[502]	
Relevance of evidence of pastoral improvements	[506]	
Onus of proof for extinguishment	[518]	
The evidence	[532]	
Areas excluded from any native title determination	[537]	
WHETHER CERTAIN ACTS HAVE WHOLLY EXTINGUISHED NATIVE TITLE	[546]	
Freehold	[546]	
Freehold titles granted 1 January 1994 – 23 December 1996	[546]	
Freehold titles granted after 23 December 1996	[557]	
Special leases	[564]	
Special lease 0957/152	[572]	
Special leases 4371/153, 4372/153	[576]	
Special leases 3116/00976, 3116/05615	[582]	
Special lease 3116/05266	[588]	
Special lease 3116/01287	[591]	
Special lease 3116/01666	[595]	
Special lease 3116/02816	[599]	
Residential leases	[602]	
Reserve leases	[608]	
Reserve leases without lease instruments	[608]	
Reserve lease granted pursuant to s 33(3) Land Act 1933	[617]	
Reserve leases granted over State forest	[621]	
Reserve leases granted over reserves not immediately required for their reserved purpose	[630]	
Restrictions on reserve lease to the natural surface of the land	[637]	
General leases	[641]	
Vested reserves	[650]	
Reserves 02742, 02751	[650]	
Reserve 24634	[656]	
Reserve 29839	[661]	
Reserve 41109	[666]	
Reserves where additional rights are asserted	[673]	
Reserves the subject of public works	[682]	
Reserve 46783 (Bore 4/75)	[682]	
Reserve 47060 (Kantie Murdana Trigonometrical station)	[693]	
Roads and other public works	[705]	
Roads created pursuant to the Road Districts Act 1919 (WA)	[705]	
Roads created pursuant to the Local Government Act 1960 (WA)	[713]	
Current road 169	[716]	
Features associated with roads	[721]	
Other public works	[731]	
Pastoral improvements	[737]	
Mining tenements	[739]	
Mineral leases	[739]	
Gold mining leases	[751]	
Residential areas and market gardens	[757]	
Miners’ homestead leases	[764]	
Rights in minerals and petroleum	[774]	
WHETHER CERTAIN ACTS PARTIALLY EXTINGUISHED NATIVE TITLE	[779]	
Pastoral leases	[779]	
Unvested reserves	[790]	
Reserves created for the purpose of “townsite”	[791]	
Reserves created for the purpose of “exempted from sale”	[800]	
Reserves created for the purpose of “public utility”	[807]	
Reserves with insufficient evidence of creation	[810]	
Unvested reserves with additional extinguishment	[814]	
Reserve 02944	[814]	
Reserves 06270, 11342, 12876	[825]	
Nature reserves	[831]	
State forests	[838]	
Mining and petroleum tenements	[841]	
Mineral claims	[841]	
Dredging claims	[848]	
Prospecting areas	[856]	
Rights to water	[860]	
Temporary reserves	[861]	
Oil prospecting areas	[871]	
Machinery area lease	[874]	
WHETHER CERTAIN ACTS DONE PRIOR TO 23 DECEMBER 1996 ARE VALID	[881]	
Reserves	[881]	
Mining tenements	[884]	
Unsurveyed mining tenements	[884]	
Compliance with s 22H NTA	[900]	
WHETHER CERTAIN ACTS DONE AFTER 23 DECEMBER 1996 ARE VALID FUTURE ACTS	[915]	
Land tenures	[915]	
CT0222000802	[915]	
Taking order I402911 (CT0222300652)	[919]	
Reserve 44366	[931]	
Water tenures	[943]	
Mining and petroleum tenements	[944]	
Mining tenements said to be invalid for NTA non-compliance	[944]	
“Ward policy” tenements	[959]	
Tenements subject to indemnity	[966]	
Tenements said to have been granted with insufficient time for NTA compliance	[974]	
Tenements which have not been surveyed	[976]	
Tenements which fail the freehold test	[978]	
WHETHER CERTAIN INTERESTS SHOULD BE RECORDED AS “OTHER INTERESTS” IN ANY NATIVE TITLE DETERMINATION	[985]	
Rights of access to mining tenements	[985]	
State’s ownership of geothermal energy and geothermal energy resources	[991]	
WHETHER THE BADIMIA # 2 APPLICATION SHOULD BE DISMISSED	[1001]	
WHETHER EXTINGUISHMENT IS TO BE DISREGARDED	[1021]	
Section 47	[1021]	
Ninghan Station	[1022]	
Section 47A – Reserves covered by claimants’ application	[1034]	
Paynes Find Aboriginal Reserve	[1037]	
Mount Magnet Aboriginal Reserves	[1067]	
Section 47B – Vacant Crown land covered by claimant application	[1078]	
Thundelarra, Warriedar, Burnabinmah, Lakeside and Lake Austin Stations	[1083]	
UCL East of Kirkalocka Station	[1086]	
Lake Moore	[1089]	
Wondinong Station	[1120]	
UCL near Whitewells Station	[1126]	
Paynesville townsite	[1135]	
Boogardie townsite	[1141]	
Lennonville townsite	[1153]	
CONCLUSION AND ORDERS	[1162]	

REASONS FOR JUDGMENT
NATURE OF PROCEEDING AND ISSUES
1		In these related proceedings, claimants, on behalf of a claim group comprising descendants of named ancestors and who identify themselves as Badimia people, apply, under the Native Title Act 1993 (Cth) (NTA), for a determination that they hold native title in relation to land and waters in the vicinity of Mount Magnet in the Murchison region of Western Australia (claim area).  
2		Proceeding WAD 6123 of 1998 was the initial proceeding by which the claimants made their claim.  Proceeding WAD 100 of 2012 (Badimia # 2 application) was the proceeding subsequently filed with a view to attracting the beneficial operation of s 47B NTA in respect of areas of unallocated Crown Land (UCL) within the claim area.  The parties and the Court have treated the two proceedings as one and in these reasons for decision they are simply referred to as the proceeding.
3		Under s 225 NTA, in such a proceeding the Court is required to make a determination, “whether or not native title exists” in relation to the claim area and, if it does, to make a determination of:
(1)	who the persons, or each group of persons, holding the common or group rights comprising the native title are;
(2)	the nature and extent of the native title rights and interests in relation to the claim area;
(3)	the nature and extent of any other interests in relation to the claim area; 
(4)	the relationship between the rights and interests in paras (b) and (c) (taking into account the effect of the NTA); and
(5)	to the extent that the land or waters in the claim area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 
4		Thus, before a determination can be made, the Court must determine whether native title exists and then, if it does, the extent to which it has been extinguished.
5		In relation to the question whether native title exists and, if so, who the persons or group of persons holding the native title are, and the nature and extent of the native title rights and interests concerned, s 223(1) NTA defines the expressions “native title” and “native title rights and interests” as being:
the communal, group or individual rights and interests of Aboriginal peoples … 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  …; and 
(b)	the Aboriginal peoples …, 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.

6		Because of s 223(1)(b), issues going to the existence of native title are often referred to by the shorthand expression, connection issues. 
7		Other issues, particularly those going to the nature and extent of native title rights and interests in light of executive and legislative acts that have occurred since sovereignty, are often referred to by the shorthand expression, extinguishment issues. 
8		In this proceeding the claimants contend that they hold communal or group native title and, by the evidence they have led, have satisfied the s 223 requirements for proving that native title as defined exists. 
9		The s 223 requirements for proving the existence of native title, and the reasons for them, have been explained by the High Court of Australia in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422, where the Court emphasised that, for native title to subsist today, claimants must, in effect, be able to demonstrate that they are the successor “society” to that which held native title at sovereignty and in each generation since then without “substantial interruption”.
10		Having regard to these requirements, the State, while accepting there was a group of Aboriginal people known as Badimia at the time of British sovereignty in Western Australia, expressly submits the claimants have failed to establish:
(1)	that the “society” of people in occupation of the claim area at sovereignty was Badimia; or
(2)	what the traditional laws and customs of that sovereignty society were for allocating rights in relation to the claim area; or
(3)	that traditional laws and customs have been continuously acknowledged and observed from sovereignty to the present day in the claim area; or
(4)	that, by or under traditional laws and customs which have continued to be acknowledged and observed in the claim area, the claimants have throughout the period maintained a connection to the claim area; or
(5)	that the particular rights and interests now claimed are possessed under traditional laws and customs presently acknowledged and observed in the claim area. 
11		The other respondents (apart from Telstra Corporation Ltd) adopt the State’s position on these connections issues.
12		There may be a distinct question in some cases under the NTA as to whether the members of a claimant group are the “traditional owners”, to use a general expression, of the country they claim.  In some circumstances, the group may be a recognised traditional group of Aboriginal people, but the question is whether, at sovereignty, their traditional country was the country they now claim, or lay elsewhere.  For example, if a group migrated, subsequent to sovereignty, to the country they now claim, their claim will fail.  See AB (deceased) (on behalf of the Ngarla people) v State of Western Australia (No 4) [2012] FCA 1268; (2012) 300 ALR 193.
13		In other circumstances, the migration question may arise in a different way.  There may be no dispute that a particular group of Aboriginal people traditionally owned the claim area at sovereignty, but a question may arise as to whether all members of the claimant group can trace their ancestry to persons who were the traditional owners at sovereignty and so are able to be included as holders of native title in the determination that native title exists.  In State of Western Australia v Graham on behalf of the Ngadju people [2013] FCAFC 143; (2013) 305 ALR 452 (Nadju FC), for example, it was held that persons descended from a particular claimed apical ancestor, who was found not to be one of the traditional owners at sovereignty, could not be determined to be part of the group which held native title.
14		In each example just given, it does not matter that the claimants and ancestors concerned may have or have had an historical connection with the claim area, that is to say, have lived in the claim area for a long time commencing at some point after sovereignty and be knowledgeable about the claim area from an indigenous perspective.  Unless the Yorta Yorta requirements concerning society are satisfied, the Court is unable to determine that native title exists under the NTA.
15		In this proceeding, therefore, four key (although related and overlapping) connection issues arise, namely:
(1)	whether the claim area was Badimia country at sovereignty;
(2)	if so, whether the apical ancestors identified by the claimants were Badimia people;
(3)	if so, whether the native title rights and interests now claimed by the claimants can be said to be possessed under traditional laws and customs; and
(4)	if so, whether the claimants presently have a connection with the claim area by those traditional laws and customs.
16		If connection is made out by the claimants, extinguishment issues are raised by all respondents (including Telstra).
CONNECTION ISSUES – INTRODUCTION
Inferences
17		What is clear from all the connection evidence received at the hearing of the claim is that, unlike some other reported native title claims, the European record pertaining to Aboriginal connection with the claim area is particularly limited and often quite generalised.  This has the result that, in this proceeding, there is a question about what reasonable inferences may be drawn by the Court in respect of key issues from the evidence led at trial.
First contact
18		It is not in contest that the period of first contact between Aboriginal people and the agents of the British Crown, following the assertion of British sovereignty in Western Australia in 1829, occurred in the claim area around the 1850s.  After contact, the pastoral industry was the first major settler industry established in the claim area, principally from the 1870s, followed, in the 1890s, by mining.  There is no doubt that each of these industries had a serious impact on Aboriginal peoples in the general vicinity of the claim area, including the claim area, and on their traditional way of life.
Ethnographic material 
19		There are very few early contemporary records about the Aboriginal people who occupied the claim area in these earlier times.  The Assistant Colonial Surveyor, Robert Austin, provided a report in the 1850s.  Daisy Bates collected some ethnographic material pertinent to this proceeding in the early 20th century.  Norman Tindale, the noted ethnographer, undertook some research in relation to the claim area in the late 1930s and also in the 1960s.  In the early 1930s, and again in the late 1930s or early 1940s, DS Davidson, an American anthropologist, also conducted ethnographic research.  As will be seen below some of this material would appear to refer to Badimia people, although none provides a precise account of their culture or the location of their traditional country.
20		In the post-Second World War era, Dr Ruth Fink obtained data in the vicinity of the claim area for her PhD dissertation about “tribal distribution” in the Murchison.  Some years later, in the early 1980s, married couple Richard Kingsford and Leone Dunn, conducted research in the broader area: Kingsford for his masters thesis on “Yamadyi Law”, and Dunn for her masters thesis on the Badimia language.  Linguistic research was also carried out in this later era by WJ Oates and LF Oates, WH Douglas and N Thieberger.  
Introduction to claimants’ evidence
21		There was a considerable body of evidence led from the Aboriginal witnesses at the hearing, over two tranches of Aboriginal evidence taken on country (in 2010 and 2012) which attested to their, and to their families’, identity as Badimia people and their connection with the claim area.  In that regard, the historical association of the claimants and their old people of whom they gave evidence at the hearing is not in doubt.  What is in issue, as noted above, is the traditional association of the claimants and their ancestors with the claim area.
22		As to present connections a number of claimants gave evidence of their own association with the claim area, which may be generally mentioned at this point.
23		Darryl Fogarty said that when he was young he went mustering at Averest (in the south‑eastern part of the claim area) with his uncles Jim and Bill Clinch. Mr Fogarty said his uncles had always worked down around Mouroubra Station and Pindabunna Station because they always worked inside the Badimia boundary. 
24		More recently, Mr Fogarty said he went to Thundelarra Station camping with his wife. He said when he is driving past he will usually pull into Salt Creek (west of Paynes Find) and check to make sure everything is alright and that the spring is still working and clean it out. Salt Creek is a permanent water source, where wildlife gather and the Bimara (a Dreaming being) resides. Mr Fogarty said “[w]e do quite a lot out that way and it’s our home.  We get bush tucker if there’s coglas, bowgarda beans, biymba, candy candy which are flat beans from the mulga tree..”.  He used to always go around Warriedar Station too and camp. 
25		Coral Brockman stated that now that she lives away from the Badimia claim area she returns often and particularly each Easter with her family. Ms Brockman said that when she was younger her mum insisted that she and the other young people visit Badimia country. Ms Brockman said that her mother did not give them a choice because her mother knew they were too young and silly but she made them come out and she taught them about their culture and their history. She stated that “since 1969 I’ve been coming out to Paynes Find and Goodingnow Station and also to visit Warrdagga [Hill]” with her family.  She said Warrdagga is a significant spiritual site to Badimia people. 
26		Ms Brockman gave evidence that Badimia country is where she and her family feel safe and can connect with their ancestors. Ms Brockman said she feels comfortable in Badimia country and it is important in building up their spirit.  The more she goes to Badimia country the more the spirits become familiar with her and the more comfortable she feels.  She wants her children to have that connection too. 
27		Ms Brockman said she gets her rights to speak for country from her ancestors being born on the land, from her blood links to Badimia land.  
28		Another person who has lived outside of the claim area for periods of time is Beverly Slater who is a member of the Clinch family.  Ms Slater, who says she is Badimia through her family, currently lives between Perth and Perenjori.  Ms Slater maintains that although Perenjori is not in the Badimia claim area it is traditional Badimia country. 
29		Desmond (Des) Thompson gave evidence that when he was young he would go out bush with his mother, Rita Green (Mrs Thompson) (now deceased) and she would tell him the stories about when she was a child and where she had been.  She taught him and his siblings how to catch kangaroo, find emu eggs and where to look for bush foods.  Mrs Thompson used to take him to Mount Magnet to visit family, like CG (the late Ms C George), and later lived there with his uncle, Jack Merrick.  Mr Thompson is married to Phyllis Bandy and has lived and worked in Mount Magnet off and on since 1958.  Mr Thompson has worked on various pastoral stations in the claim area.  He considers he is Badimia and that the claim area is Badimia country. 
30		(The Court here notes that, in the case of recently, or relatively recently, deceased members of the claimant group the Court has endeavoured, with the assistance of the claimants’ legal representatives and in accordance with the custom of the group, to ensure that the deceased persons are appropriately referred to in this judgment.  For example, the full name of CG – the late Ms C George – has not been used.  In the case of persons who have been deceased for many years, the Court understands it is appropriate for it to refer to the names by which those persons were known when they were alive.  For example, Rita Green (Mrs Thompson) and Joe Benjamin are referred to by their names.)
31		Ronald (Ron) Bandy gave evidence that his mother was Dorothy Little, a Badimia woman born at Wydgee Station, just south of Mount Magnet.  He said his mother’s father, Tommy Little was born in the Paynes Find area, in Badimia country.  Mr Bandy was born in Mount Magnet and his granddaughter and grandson live there.  Mr Bandy said he “takes the boys out on our country to do what we all do on our country; go bush, hunt, cook up a feed here and there.  I think they’re getting the swing of it”.   Mr Bandy’s grandfather, Tommy Little and grandmother, Cissy brought him up, mostly around Wydgee Station. 
32		Mr Bandy said that he was taught the Badimia side and lived on Badimia country so he followed his mother’s Badimia ways, not his father’s side.  He gave evidence that people obtain knowledge about being Badimia from their parents and other old people. He maintained that if “your parents are from Badimia country then you should learn about the country from them and the other old people in your family”. 
33		Mr Bandy said that since he first left school he has worked extensively on pastoral stations on Badimia country such as Yoweragabbie, Austin Downs, Windimurra, Challa and Meeline Stations. Mr Bandy said he also worked out toward the Sandstone area, Lake Mason, Youanmi, Yuinmery and Lake Barlee (which although outside the claim area he considered to be traditional Badimia country).  When asked in cross-examination if he has a strong connection to Meeline Station because he spent more time there, Mr Bandy agreed.  Mr Bandy said that recently he had moved to Wiluna for work and spends about three months a year in Badimia country.  He said he would stay longer or live in Mount Magnet if he could get work. 
34		Mr Bandy gave evidence that he has spent a lot of time around Windimurra, back to Lake Karan, and in the area down near Narndee Station.  He stated “[l]ast year my kids and I went through a lot of that area around Windimurra, Paynes Find and Mount Gibson.  I have six kids and two grandkids and we all went together. We travelled through Burnabinmah, Warriedar, Thundelarra on the way, we went through and had a look, we usually bring some of the Badimia kids from Perenjori too.  It is important to take those Badimia kids out on country as much as we can and teach them about the country and ways of hunting, camping and preparing food”. 
35		Ashley Bell gave evidence that he has lived continuously at Ninghan Station for the last 27 years.  He said he has a strong connection with the southern portion of the claim area. Mr Bell was brought up on Ninghan Station when his parents were hired to work there.  He said the family had to move to Wubin so he and his siblings could go to school.  Wubin is not within the claim area but Mr Bell considers Wubin is also traditional Badimia country.  When Mr Bell and his family lived in Wubin they always came back to the claim area to visit uncles, from his mother’s family, the Clinch family.   
36		Mr Bell’s mother, Leah Bell, was born under a tree at Paynes Find and is the daughter of Ruth Clinch.  Ms Bell also lives at Ninghan Station.  Ruth Clinch was the daughter of Uanda, one of the two Aboriginal wives of Thomas Augustus Clinch, generally known as Gus Clinch, a European man who was the pastoral lessee of Goodingnow Station.  Goodingnow Station is the adjoining station to Ninghan Station and within the claim area. 
37		Mr Bell’s son, Drew, his partner and their two children also live on Ninghan Station.  Mr Bell gave evidence to the effect that six generations, descended from Uanda, have maintained a continuing connection to the southern portion of the claim area. 
38		Mr Bell gave evidence that he learned stories and was told about sites by his uncles and grandfathers, who used to take him out into the bush.   He said “if I get a week off I go bush by myself or with my family”.  Mr Bell said he regularly goes to Warriedar and Thundelarra Stations and checks sites, caves and goes hunting.  When he was cross‑examined, Mr Bell was asked what he does when he is at Mongers Lake in the south‑west of the claim area.  Mr Bell said that as well as doing his everyday work, he also checks sites, cleans waterholes and checks on the country in general.   He teaches his son to do this. 
39		Ollie George was born on Pullagaroo Station, in the claim area, in 1934 and currently lives in Mount Magnet with his children and grandchildren.  Mr George gave evidence that his mother (Ms C George) was Badimia and she was born “out in the bush” on the land that is now Wynyangoo Station.  Mr George said in cross-examination that he considered his mother’s mother, Rosie, was a Badimia person, because she was “living in this land”.  Mr George said he was raised by Nugget Sport, and his wife Dinah, on Kirkalocka Station.  When being cross‑examined at Chewar Rockhole on Kirkalocka Station, Mr George said Nugget Sport was the “king for this area” and he and Dinah “spoke Badimia language”, as he, Mr George, still does. 
40		Mr George also gave evidence that “I have lived on stations all over my Badimia country. When I was growing up I moved between Paynes Find and Yalgoo, living on stations south of Mount Magnet and on Narndee Station which is about seventy kilometres north‑east of Paynes Find. We lived on Kirkalocka, Wydgee, Yoweragabbie, Thundelarra, Pindabunna and Wogarno Stations”.   Mr George gave detailed evidence about the places he has camped at and worked on in the claim area. 
41		Mr George stated that it is important to make sure the young ones go out with him so they get his knowledge before he passes away.  He said he has taken his sons out to Bulgardoo, Goloway, Thugaru and the bardi site at Kirkalocka Station.  He has showed them all the rockholes on Kirkalocka Station and on the west side of Wydgee Station, and the white cockatoos site on Kirkalocka Station.   
Outline of Dr Choo’s evidence
42		Expert historical and anthropological evidence was also give at the hearing.  The following expert reports of the historian, Dr Christine Choo, called by the claimants, were received into evidence:
·	Applicants’ Expert Historian Report filed 11 May 2012 (Dr Choo’s first report).
·	Applicants’ Expert Historian Further Report filed 27 August 2012 (Dr Choo’s further report).
·	Applicants’ Expert Historian Supplementary Report filed 27 August 2012 (Dr Choo’s supplementary report).
43		Dr Choo holds a Masters of Philosophy (specialising in Australian studies) and a Doctorate of Philosophy (in history).  She is an Honorary Research Fellow at the University of Western Australia.   Her experience and expertise were not questioned in the proceeding.  The respondents chose not to call evidence from an expert historian.
44		The range of sources consulted by Dr Choo in compiling her reports included:
·	primary archival documents generated by the Western Australian Government and held by the State Records Office of Western Australia; 
·	files generated by the Aborigines Protection Board, the Aborigines Department and its successors and files of the police department relating to particular police stations; 
·	primary archival documents held in private archives including the Archives of the New Norcia Benedictine Community; 
·	primary archival documents held in the Commonwealth archives; 
·	secondary sources in the style of local and family histories; 
·	witness statements and transcripts of evidence given by Badimia claimants as preservation evidence in the litigation proceedings;  and
·	books and other publications written by individuals who may have lived or worked in and around the claim area, including personal reminiscences of early European settlers and prospectors. 
45		In addition to this research, Dr Choo was also provided with the Applicants’ Expert Anthropological Report prepared by Mr Michael Robinson filed 25 May 2011 (Mr Robinson’s first report) and the First Respondent’s Expert Anthropological Report prepared by Dr Ron Brunton filed 1 December 2011 (Dr Brunton’s first report). 
46		Dr Choo stated in her first report that there is a singular lack of secondary sources regarding Badimia country and the Murchison region. The history of the region has not been seriously studied or documented in any other way except within the context and style of local and family histories written to commemorate anniversaries and events that are significant to the European settlers. As such, these documents are highly Eurocentric in content and approach.  Dr Choo, however, placed some reliance on the book entitled, Drawn to Mt Magnet: Wannars, Dolly Pots, Shears (Shire of Mount Magnet, 1995) by Lorna Day and Karen Morrissey (Day and Morrissey), as many of their Aboriginal informants were related to the Badimia claimants. 
47		In her first report Dr Choo detailed the explorers and surveyors who travelled either through, or close to, the Badimia claim area.  Records of explorers who did not travel into the claim area provide evidence for Aboriginal occupation of Badimia land through inference, since Aboriginal people were observed in areas of the Murchison immediately to the north and to the west of the claim area.  Dr Choo discussed the Assistant Surveyor Robert Austin’s encounters with Aboriginal peoples within the claim area in 1854, which were at times hostile. 
48		Other expeditions that Dr Choo has recorded also provide evidence of Aboriginal occupation of the claim area. Most significantly she mentioned Government Surveyor HS King’s expedition in 1886, on which he renamed a number of places with European names, changing them to Aboriginal names. 
49		Dr Choo stated that the settlement of Western Australia was aided by the cheap labour provided by Aboriginal people.  She said the relationship between the Aboriginal population and the European settlers was relatively benign in the claim area and Badimia people were able to coexist with explorers, pastoralists and miners after European settlement of their country. 
50		In her first report, Dr Choo did not express an opinion on whether the descendants of the claimed apical ancestors were Badimia people.  Having given consideration to the evidence of the Aboriginal witnesses in the proceeding, however, Dr Choo ventured the opinion that those who claim that they are the descendants of the apical ancestors are Badimia people. 
51		In the process of her research Dr Choo came to the view that the ancestors of the current claimants had lived and worked on pastoral stations within the claim area from the creation of the stations by European families.  These families were amongst the first Europeans with whom the Badimia came into contact.  She said Aboriginal peoples tended to resist leaving their own country, attempting instead to remain attached to particular stations and places to which they had strong familial or community connections.   Pastoralists and their families too formed strong bonds with particular Aboriginal families who worked for them. 
52		Dr Choo stated that the attachment that Aboriginal people had to their land was recognised by the Chief Protector of Aborigines in his annual report of 1905:
Each little tribe of natives so loves its own little district, and this love has been inherent in these races for such a long period that the old and crippled members of the tribe will hardly ever seek relief out of their district. They will die first; and to prevent such a wholesale cruelty, I see no way but to continue nearly all these relieving stations. 
53		Dr Choo expressed the view that after the spread of pastoral stations through Badimia country the Aboriginal peoples of the area would attach themselves as shepherds and general hands to a station that adjoined their particular country. When not working they camped, hunted and gathered food as they had always done. Thus they were able to adapt their traditional way of life to their new environment. 
54		Dr Choo could not find Department of Aboriginal Affairs records for all pastoral stations within the claim area.  She was, however, able to find Department of Aboriginal Affairs records for many of the stations which, in her opinion, showed that the ancestors of the current Badimia claim group lived and worked on the stations.
55		Some station records provide an insight into the relationships between Aboriginal people and station owners in earlier times.  Dr Choo said Kirkalocka Station was recorded as having a sympathetic station manager, Mr Fred Broad, in the first half of the 20th century, and three Aboriginal people, Nugget, Dinah and Emily are recorded as living there.   (As noted above, Ollie George gave evidence that Nugget Sport and Dinah raised him on Kirkalocka Station and other stations south of Mount Magnet.)  
56		Mr Broad fought to protect many Aboriginal people who were starving or had no clothing.  Letters sent by him to the Department of Aboriginal Affairs (as it is currently known) requesting rations for “Lizzie” received the response from the Department that “Lizzie” be removed to Moore River Native Settlement, outside and well south of the claim area.  Mr Broad wrote back to the Commissioner of Native Affairs stating:
These old native women have no wish to be transported out of their native country, and where a station is willing to supply food, it does not seem right to me that the Department would bear the cost of transport, and food whilst living at the mission, against the small cost of providing clothing, rugs, and allowing the old women to remain in their own district. 
57		Nalbarra Station employed a number of Aboriginal people in the late 1800s and early 1900s but not much detail is known.  All the work on the station was done by the Aboriginal people.  There was a camp where 20 to 30 Aboriginal people lived on the property.  The station supplied flour, tea, sugar, dresses for the women and clothes for the men. 
58		Department of Aboriginal Affairs records indicate that there were eight Aboriginal people living there in the late 1950s, including the Fogarty family and Ollie George.  In the early 1960s Audrey Bell, Tony Clinch and Robert Anderson were recorded as working there as seasonal workers.  In the late 1960s Jones family members and Josephine Wheelock were recorded as working and living at the station. 
59		Dr Choo noted that the first mention of the Little family in the claim area was in 1901 when a white man named Little was mentioned by Travelling Inspector GS Olivey to the Chief Protector of Aborigines.  This man, James Chapman Little, was married to Polly, and his five children were mentioned.  Mr Little’s daughter was listed as being at “Mr Clinch’s”. 
60		Topsy Little, daughter of James Chapman Little and Polly, was later married to Mr J Green, a European man, who died young.  She then married Arthur Fogarty and they lived in Paynes Find with their three children.  
61		Daisy Little, Topsy’s younger sister, married Fred Hedlam and had five children.  In the 1930s and 1940s, many Little family children attended the Paynes Find school.  Dr Choo located records that indicate that, in the 1950s, the Little family were still living and working in the claim area. 
62		The Fogarty family were described by Dr Choo as descendants of William Fogarty and Juumbi, whose son Arthur Fogarty, as just noted above, married Topsy Little.  Dr Choo has located records that indicate that in the 1950s, the Fogarty family were living and working in the claim area. 
63		Dr Choo noted that there are records of Ada Martin and James Martin living on Yoweragabbie Station during the 1940s.  She noted Ada and James were the children of Fred Martin and Lily Little.  Fred Martin, his wife and eight children were camped around Mount Magnet in 1941 and they were one of five Aboriginal families camping there.  In 1949, Fred Martin wrote to the Secretary of the Australian Labor Party in Mount Magnet to complain about the treatment he had received at the hands of the local police.  The police had required him to report when he entered the town of Mount Magnet, then a mining town, to get supplies. 
64		In 1903, a police report recorded that, when patrolling Barron, Goodingnow and Ninghan Stations, five native dogs were destroyed that belonged to Carnamah Freddy, Topsy and Dinah who were employed at Ninghan Station.   Dr Choo stated that the Carnamah family married into the Wheelock (aka Willock) family.  Fred Carnamah married Mary Wheelock (Budi), the daughter of Edmund Wheelock and Topsy.  She said William Wheelock, Mrs Thompson’s first husband, was recorded in Yalgoo in 1915, and was also known as “Munguddy”.  He was approximately 23 years old.  Josephine Wheelock worked at Edah Station in 1968.   Dr Choo states that records indicate that the Carnamah family lived around Yalgoo in the 1940s and 1950s. 
65		The George family and the Walsh family lived and worked on stations throughout the claim area.   Dr Choo noted Ms C George provided data to Dr Kim Fleet who undertook research in the claim area.  Ms C George was said to be close to 100 years old when she died in 2005.  Dr Fleet was able to collect data from Ms C George (which Mr Robinson, the anthropologist called by the claimants, has utilised) in relation to the George family’s occupation of the claim area since first contact.  Mr Robinson estimated that the George family apical ancestors, Bilygwi and Yilayajambin, were born in approximately 1869 in the claim area. 
66		Dr Choo located documentation pertaining to Ninghan Billy, Ninghan Freddie and Walter Ninghan.  She said brothers Joe and Bill Lawson were the sons of Ninghan Billy and Annie Benjamin.  Joe Lawson was recorded as working at Ninghan Station in 1914.  Dr Choo stated that many members of the Lawson family are recorded as living and working in the claim area and west to Yalgoo (said by claimants to be traditional Badimia country) from then through to the 1970s. 
67		In September 1904, Police Constable McGuiness of Fields Find Police Station reported that he travelled to Goodingnow Station where the lessee, Gus Clinch, informed him that dingoes had attacked his sheep, and an old “native” named “Binder” claimed his dogs had killed three dingoes. 
68		Dr Choo located the records for Ninghan Station and said they appear to show that Badimia people were using the traditional camping grounds and waterholes at least until the 1940s.  The manager of Ninghan Station, Mr LC MacPherson, claimed that “some of these natives have made a nuisance of themselves by passing through and camping on wells where stock are watering”.   As well as the Lawson family working on Ninghan Station in the 1940s to the 1960s, the Bandy family also worked there in the 1960s.  Leah Bell has leased Ninghan Station since 1993 and she lives there with her son, grandson and great grandchildren. 
69		Dr Choo detailed the Clinch family’s association with Goodingnow Station. The Goodingnow Station lease was held by Gus Clinch from 1904 and the family held the lease until the 1950s. Goodingnow is a significant place for the Clinch family as it is on the northern shores of Lake Moore (usually a dry lake) and close to other sites to the west which are places of special significance to the family.  The archival records indicate that Goodingnow Station had an Aboriginal orientation because of Gus Clinch’s connection with the Aboriginal people among whom he lived.  Dr Choo considered the station functioned as a bridge between a traditional Aboriginal lifestyle and European ways. 
70		In Dr Choo’s first report she also outlined the early history and establishment of the local towns including Mount Magnet and Paynes Find, and the now deserted and defunct Lennonville and Boogardie.  Paynes Find was still a thriving town in the 1930s.  After the white families left in the 1940s the Aboriginal families remained, including the Clinch, Fogarty, Hedlam and Little families. 
71		In April 1947, there was a protest at Mount Magnet where 17 Aboriginal people were arrested for loitering. They were protesting against the prohibition that forced Aboriginal people to leave town when ordered to by the local police.  As noted above, in 1949 Fred Martin complained about having to report to the police when he entered the town for supplies.  In June 1949, Mrs Arthur Clinch wrote to the Commissioner of Native Affairs “protesting against the actions of the local Police Constable at Mount Magnet who was preventing Aboriginal people from entering the town area even in daylight hours, which was against the spirit of the declaration of prohibition”.  In 1954, the declaration of prohibition in Mount Magnet was lifted and Aboriginal people could move around freely. 
72		Dr Choo stated that the decline in employment of Aboriginal people on pastoral stations, after the introduction of award wages with the Federal Pastoral Award, meant that many Aboriginal workers drifted into the towns from the 1970s. 
73		Dr Choo said another reason that Badimia families moved to the towns was to provide their children with an education.  The Fogarty, Little, Clinch and Martin families, she said, were sending their children to school in Paynes Find from at least the late 1920s.   As noted above, in the 1940s many of the children at the Mount Magnet school were from the Little family.
74		This evidence confirms that the claimants and their ancestors have a long association with the claim area, including with pastoral stations in earlier times. 
Outline of Mr Robinson’s evidence
75		Mr Robinson, an experienced anthropologist who has been called in other native title proceedings by both claimants and the State, was called by the claimants.  As well as Mr Robinson’s first report to which reference has been made above, the claimants also tendered the Applicants’ Expert Anthropological Supplementary Report, filed 24 August 2012 (Mr Robinson’s supplementary report).  Mr Robinson did not personally undertake specific fieldwork for his reports but, before being engaged to write those reports, he had already spent considerable time researching the Badimia claim for the Yamatji Marlpa Aboriginal Corporation from 2006.  This included having Mr Mark Chambers conduct documentary research and fieldwork under his supervision.
76		A first tranche of Aboriginal evidence was taken in the proceeding in 2010, which Mr Robinson did not attend.  Mr Robinson did attend, however, the second tranche of Aboriginal evidence in 2012. 
77		Mr Robinson stated that research has been carried out on the Badimia claim over a 15 year period. During that time, a number of field notes have been compiled relating to senior members of the Badimia group who have now passed away, and who were people who were born and raised on the pastoral stations within the claim area. 
78		Four reports were prepared for mediation with the State. Mr Robinson read and analysed them and referred to them in his two reports.  Those four reports are as follows:
·	a connection report written by Dr Fleet in 2001;
·	a further connection report by Dr Fleet written as supplementary to her earlier report in 2003;
·	an anthropological report written by Dr Katie Glaskin in 2006; and
·	a report providing supplementary information and commentary written jointly by Mr  Chambers and Mr Robinson in 2007. 
79		Mr Robinson also read and took account of the earliest ethnographic accounts available relating to the claim area.  In particular, he looked at the work of Bates and Tindale, and for his supplementary report he examined the work of Kingsford, Dunn, Peter Randolph and Stephen Davis. 
80		Mr Robinson stated that, accepting the qualifications and limitations of the data, the ethnographic data that he examined provided material that could be compared with the contemporary accounts of the claimants, mostly derived from field data of Dr Fleet and Mr Chambers and the evidence of the Badimia witnesses themselves.   Based on this comparison, Mr Robinson was able to offer the view that Badimia society, as he defined it, has continued to exist since sovereignty and has remained united in its acknowledgement and observance of Badimia laws and customs. 
81		Mr Robinson concludes that, although European settlement affected Badimia people’s ability to maintain a fully independent economic life and disturbed their traditional local organisation, there is still a group of people who identify as Badimia and possess a distinctive Badimia culture.  
82		Mr Robinson’s evidence supports the claimants’ case that the Badimia people possess native title rights and interests throughout the whole of the claim area.
83		Mr Robinson took issue with Dr Brunton’s key conclusions.
Outline of Dr Brunton’s evidence
84		Dr Brunton, an anthropologist who has given expert evidence for respondents in previous native title proceedings, was called by the State.  As well as Dr Brunton’s first report, to which reference has been made above, the State tendered the State’s Expert Anthropological Report by Dr Ron Brunton filed 24 August 2012 (Dr Brunton’s supplementary report).  Both reports of Dr Brunton were responsive to Mr Robinson’s two reports.  Dr Brunton did not have the benefit of carrying out any fieldwork in the claim area and appears to have had little experience working with Aboriginal peoples in the wider region.   Unlike Mr Robinson, Dr Brunton did not attend any of the hearings at which the Aboriginal witnesses gave their evidence.
85		Dr Brunton agreed with Mr Robinson that the “ethnographic and ethno historical literature dealing with the [claim] area is limited and patchy”.  Dr Brunton stressed that this is particularly so for the century following European settlement in the Murchison region up until the 1970s. Dr Brunton considered that Mr Robinson’s use of the material produced by Bates, Davidson, Fink, Douglas, Kingsford and Dunn was inadequate. 
86		Dr Brunton’s first report argued that the claimants’ case, that one group of Badimia people occupied the claim area at sovereignty, is incorrect. He considered there were four separate groups according to the research he undertook.  In Dr Brunton’s opinion, the group that occupied the north were the Wajarri, or a closely related group, the Widi occupied the south‑western portion of the claim area, and either the Kalamaia, or an unknown group, occupied a portion of the south-east.  Hence, Aboriginal peoples identifying as Badimia, or a similar name, traditionally occupied only a part of the eastern portion of the claim area. 
87		In relation to discontinuity, Dr Brunton said that Badimia society no longer exists in a form that has its traditional roots in the society that existed at sovereignty.  Instead, there is a new society composed of people of mixed origin, some of whom may or may not have had biological links to the Badimia apical ancestors and others who came to occupy pastoral stations after sovereignty.  
88		Dr Brunton did consider, however, there was evidence that places apical ancestors Frances Bynder, Polly Little and Eva Renie in the claim area at the time of first contact/settlement but thinks that it is more likely that they were not Badimia women.  
89		In cross-examination, Dr Brunton did accept that various beliefs and practices described by witnesses who said they were Badimia, are pre-sovereignty in origin.   He also accepted that there is today a normative system under which Badimia people possess rights and interests in land, but he queries whether that system has been continuous since sovereignty and also “the extent to which that normative system is actually widely held”. 
Expert anthropologists’ conference
90		Pursuant to an order of the Court, Mr Robinson and Dr Brunton attended a conference in Perth before a Deputy District Registrar, who produced for the use of the Court and the parties a document identifying those matters and issues in respect of which they were in agreement or disagreement and where the experts’ opinions differed, the reasons for their disagreement (joint report of the experts).
91		The joint report of the experts filed 14 May 2012 was tendered into evidence.  The issues that the experts were asked to discuss at the expert conference were whether:
(1)	at the time of sovereignty, the claim area was occupied by the Badimia people who acknowledged and observed a common body of laws and customs under which they possessed rights and interests throughout the whole of the claim area;
(2)	the rights and interests possessed by the Badimia people in the claim area at sovereignty were likely to have included the rights and interests which are listed in the Applicants’ Statement of Facts Issues and Contentions filed 28 September 2010 (claimants’ SFIC);
(3)	since the time of sovereignty and through until today, the Badimia people have continued to exist as a body of persons who are united in and by their acknowledgment and observance of a common body of laws and customs which show continuity with the laws and customs which were likely to have been acknowledged and observed by their ancestors at the time of sovereignty;
(4)	although there have over time been changes to the laws and customs of the Badimia people, the Badimia people continue to possess the rights and interests listed in the claimants’ SFIC under laws and customs which find their origin in the laws and customs that existed at the time of sovereignty;
(5)	the apical ancestors identified in the claimants’ SFIC are the apical ancestors of the Badimia claimants and whether the data supports the conclusion that they were present in the Badimia claim area at or about the time of first European settlement;
(6)	it would be reasonable to infer that those apical ancestors are the descendants of Badimia people who were present in the claim area at the time of sovereignty; and
(7)	the Badimia people have maintained a connection to the claim area.
92		As to issue (1), Mr Robinson and Dr Brunton expressed their agreement to the extent that Dr Brunton said it was possible that some “eastern” Badimia, as he described them, were within the claim area at the time of sovereignty. 
93		Mr Robinson stated that the starting point for this inquiry must be the claimant evidence. Mr Robinson noted that the transcript and statements of evidence from the preservation or early evidence identified the claim area as Badimia country and no other Aboriginal people have claimed it.  Mr Robinson believed Kingsford’s thesis and the recent work of Davis support the claimants’ assertion that the claim area is Badimia country, and the views of Fink, Douglas and Tindale also lend support to the claimants’ evidence.  By contrast, he said the material of Bates is slight and confused.  In Mr Robinson’s opinion, Bates’ data lacks certainty and does not displace the claimants’ and other anthropological evidence.
94		Dr Brunton took a different approach and considered that he could not primarily rely on claimant evidence to establish the situation at sovereignty nor early contact. Dr Brunton stated that the occupation of the claim area by the Badimia people is open to question.  By his evidence, the Court understood him to suggest that data collected within the last 30 years, a century after first contact and considerably more time since sovereignty, is too removed from the contact period to be relied on.  Dr Brunton noted that Kingsford and other researchers, apart from Davis, did not find that territory identified with Badimia people encompassed all the claim area.
95		Dr Brunton was of the opinion that the findings of Bates indicate there were two separate groups with different laws and customs who had names that sounded like Badimia, comprising a western group near the coast and an eastern group to the east of the claim area.  This is consistent with information obtained by Davidson as well as some recent Aboriginal accounts.
96		As to issue (2), the experts agreed that the rights and interests possessed by the Aboriginal people in the claim area at sovereignty were likely to have included the rights and interests which are listed in the claimants’ SFIC. 
97		As to issue (3), the expert anthropologists could not agree.  Mr Robinson referred to the claimants’ evidence that supports the existence of a continuing body of people who observe traditional laws and customs, albeit in a modified form.  He stated that he had not seen anything in the literature that contradicts this view in a material way. 
98		Dr Brunton’s opinion regarding issue (3) closely relates to the opinion held regarding issue (1) above.  It was Dr Brunton’s opinion that there was neither a single body of people who could be identified as Badimia at sovereignty nor a single society within the boundaries of the claim area.  He stated that there are degrees of uncertainty.  He considered that there appear to be some traditional laws and customs currently acknowledged by the Badimia claimants.  Dr Brunton considered that the issue is whether they are central or peripheral traditional laws and customs.  The laws and customs necessary to maintain connection have not continued to be observed by the claimants. 
99		As to issue (4), the experts could not agree.  Mr Robinson was of the opinion, based on his experience and research, that the suite of rights listed in the claimants’ SFIC is consistent with other Aboriginal groups’ rights and that the rights have been possessed on a continuing basis since sovereignty.  Mr Robinson considered that fishing is the exception, although he was prepared to accept that it might be possible to establish this right should further information or evidence come to light. 
100		Dr Brunton stated that the Badimia claimants are accessing resources, as opposed to exercising rights and interests that stem from the laws and customs of the different societies that occupied the claim area at the time of sovereignty.  Dr Brunton came to this conclusion based on the presence of Aboriginal people from other parts of Western Australia in the claim area.  The presence of non-Badimia people utilising resources derives from the post‑European settlement period.  He also stated that there is no continuity of observance of traditional laws and customs and the contemporary claimant activity is not substantially different from resource usage by non-Aboriginal people. 
101		As to issue (5), the experts partly agreed.  Mr Robinson’s overall view was that the apical ancestors, identified in his report, are the ancestors of the Badimia people who were present in the claim area at the time of settlement. 
102		Dr Brunton indicated that Polly Little, Eva Renie and possibly Francis Bynder  were likely to have been present in the claim area at the time of settlement but did not concede that they were necessarily Badimia people.  Dr Brunton stated that he can link the individuals identified by Tindale to contemporary claimants, but Tindale had identified them as “Widi” not Badimia.  Dr Brunton questioned whether the reference to Widi is equivalent to Badimia.
103		As to issue (6), the experts partly agreed.  Mr Robinson was of the opinion that a core group of Badimia people have remained in occupation of parts of the claim area in and around Mount Magnet.  He stated that the claimants maintain cultural connection whether as residents or not and continue the transmission of knowledge to younger generations.  This is done through kinship, undertaking responsibilities and the perpetuation of belief in the Bimara and other spiritual beings, in addition to regular visits to the claim area and the undertaking of cultural responsibilities.
104		Dr Brunton was of the opinion that some claimants can trace a physical connection back to European settlement.  He stated that Kingsford’s information suggests that people who failed to maintain a physical connection with country in the claim area lost their rights.  On the other hand, Dr Brunton did not believe that cultural connection had been maintained, in a significant sense, to the necessary degree.
105		The evidence of the anthropologists helps to frame consideration of the key connection issues.
106		At the trial, the anthropologists gave oral evidence concurrently and further explained their respective opinions.  This evidence is referred to below in the course of considering the key issues.
WAS THE CLAIM AREA BADIMIA COUNTRY AT SOVEREIGNTY?
107		The evidence of members of the claimants given at the trial was that the claim area with which they and their ancestors are and were associated is traditional Badimia country.  Their evidence was based on their understanding that they, and their ancestors, are and were Badimia people, and had grown up, especially in the pastoral era, on traditional Badimia country.  Many of the witnesses considered that traditional Badimia country extended well beyond the claim area. 
108		In Mr Robinson’s first report, having regard to earlier ethnography and his assessment of its weight, Mr Robinson concluded that the findings of his preferred early ethnographers were “broadly consistent with the location of Badimia people in the native title claim area and beyond at the time of sovereignty”.
109		In Dr Brunton’s first report, Dr Brunton agreed there was limited early data and that this factor, together with post‑sovereignty movement by Aboriginal peoples as a result of European settlement, made it difficult to identify with precision the names and identities of the Aboriginal group or groups associated with the claim area at sovereignty.  Dr Brunton was firmly of the opinion, however, that the early data showed there were a number of different tribes or language groups associated with different parts of the claim area at sovereignty, and he was critical of Mr Robinson’s first report for “aggregating” ethnographic sources together, without taking inconsistencies into account, in aid of concluding that the claim area was associated at sovereignty with Badimia people alone. 
110		The anthropologists further considered the extent of country issue in their supplementary reports and in their joint report of the experts, and then gave concurrent evidence about it (as noted above) and were cross‑examined on the topic at the hearing.
Claimants’ primary submissions
111		The claimants note and contend in respect of the evidence as follows:
(1)	The evidence of the Aboriginal witnesses strongly supports Mr Robinson’s conclusion that the claim area includes, but is not limited to, the traditional lands of the Badimia people at sovereignty.
(2)	In his first report, Mr Robinson used the term “tribe” to describe traditional sociolinguistic groups even though this term is not in favour currently in anthropological writings.  He said he used the term “tribe” as it is used by Badimia people to refer to themselves.  He noted that the term “language group” is a substitute but the Badimia do not have a strong belief in a language-land relationship although they have a strong belief that land is associated with the Badimia as a social entity and that it is people of Badimia identity who should “speak” to country. 
(3)	Mr Robinson stated that the Badimia people use the term “tribe” in the broadest sense, to identify themselves as a group of kin having rights over a defined tract of country.
(4)	In first report, Dr Brunton critically stated that, until the 1960s anthropologists generally failed to realise the importance of distinguishing between those people who held transmissible “proprietary rights” in tracts of land, and those who lived on those tracts and used their resources.  In that context, Dr Brunton discussed the anthropological use of the terms estate, range, clan and band.
(5)	Mr Robinson stated in his first report that the boundaries of the Badimia claim area are conservatively drawn in relation to previously published and unpublished sources and the evidence of Badimia people themselves.  The most complete research is to be found in the works by the linguist Dunn and the anthropologist Kingsford who both positioned the Badimia in an area of land that includes the claim area.  There is support in the literature for Badimia territory being much larger than the Badimia claim area, particularly toward the west and further south over Lake Moore.  The evidence of Badimia witnesses was also supported by the neighbouring witnesses.
(6)	In Mr Robinson’s view, Bates’ data provides general support for the location of Badimia people in and near the claim area in the period between 1900 and 1910 and he stated that from that data it may be inferred that the Badimia resided in the claim area at the time of sovereignty.  Bates’ documentation is not precise enough, however, to say what the boundaries of Badimia country may have been in 1900.
(7)	Dr Brunton’s first report concluded, based on Bates and Tindale, that at the time of sovereignty “proprietary rights and interests” in the claim area were held by more than one tribe or language group including the Widi, Kalamaia and the Wajarri.  In addition, Dr Brunton considered that people identified by Bates as either “Baadeemaia” (in the west) and “Badimaia” (in the east) were different groups.  Dr Brunton considered that it is possible that the people referred to by Bates as “Badimaia” already occupied a portion of the claim area in the east at sovereignty.  Therefore, the “Badimaia” represented a fourth group.  Mr Robinson dealt with the Wajarri, Widi, and Kalamaia/Kakara/Gagara/unknown group in his supplementary report.
(8)	Dr Brunton considered that “the people of Mount Magnet and the area to its north were probably Wajarri or a closely related group”.  Mr Robinson said there is no support for this opinion.  Mr Robinson pointed to the draft of the dictionary currently being prepared for the Badimia language where it states that “Badimaya is closely related to Wajarri, the language of the Murchison and the speakers of Badimaya can generally understand much Wajarri”.  Further, Wajarri man Lance Mongoo gave evidence about the boundaries between Wajarri and Badimia country.
(9)	Nhanhagardi elder, Clarence (Clarrie) Cameron, gave evidence about the country of the Wajarri and the Badimia and clearly described them as different areas.  It is important to note that both Mr Mongoo and Mr Cameron have lived in Mount Magnet.  They both learnt about Badimia country while living in the claim area before the commencement of the NTA.
(10)	Finally, as Dr Brunton conceded, the placement of the Wajarri in the northern portion of the claim area was not only inconsistent with the Aboriginal evidence, it was also inconsistent with some of the ethnography as, in particular, Tindale, Kingsford and Dunn all identified the northern portion of the claim area as Badimia country.
(11)	Mr Robinson concluded that there appears to be no support in Tindale’s own field data for an extension of Kalamaia territory so far west.  Dr Brunton agreed with Mr Robinson that the genealogies taken by Tindale appear to relate to the area around Southern Cross and not the Lake Moore region.  Mr Robinson could not find any support in the data collected by Tindale for the presence of the Kalamaia at Lake Moore or in the Paynes Find area.
(12)	Mr Robinson concluded that Tindale’s placement of the Kalamaia at Lake Moore is unsupported and that the sources he cited in fact support a presence there by the Badimia.  In cross-examination, Dr Brunton agreed that Mr Robinson’s analysis of the Tindale data regarding the Kalamaia was convincing.
(13)	Mr Robinson believed that where Tindale had sound information from local informants his association of “tribes” with specific stretches of country is reasonably sound, but he also had a tendency, where material was absent or unreliable, to assign tribes to land on a speculative basis.  The latter tendency is particularly noticeable in the Murchison where his data was weak. 
(14)	Bates assigned much of the claim area to two groups: the “Wirdi Wonga” (Widi) in the west and the “Badimaia” (Badimia) in the east.  There is, however, some significant evidence in Bates’ work to suggest that her Wirdi Wonga and Badimaia were one and the same people.  On that basis, it is a reasonable inference to draw that in the first years of the 20th century the Badimia people occupied much of the claim area.
(15)	Tindale’s 1974 maps also placed the Widi group in an area in the south‑west of the claim area.  In the 1960s, when he was carrying out the research which led to his 1974 map, Tindale obtained information about the Badimia from three informants.  Two of those informants, Crow Battle and William Hamlet, knew about the Badimia, but did not know a group called Widi.  Tindale’s other informant, Maggie Bell, told Tindale that “Widi” country went north to Mount Magnet and that “we call ourselves Badimaya”.  Dr Brunton in cross‑examination agreed that the information given by Maggie Bell to Tindale included data that Paynes Find people speak “Badimaya” and that this was consistent with the data collected by Kingsford, Dunn and Stephen Davis in the 1980s.  He accepted that a reasonable interpretation of what Maggie Bell said to Tindale is that Widi was simply another name for the Badimia.  Indeed, it is the most likely interpretation of what she said.  Dr Brunton also accepted that Tindale’s Wajarri informants considered the Badimia and the Widi to be the same people.
(16)	Mr Robinson did not consider that a group separate to the Badimia, called the Widi, existed in the past.  This opinion is supported by the evidence of the Aboriginal witnesses.  Mr Robinson stated that the claimants believe that the Widi claim is a construct for the purposes of native title.
(17)	Dr Brunton agreed that all the witnesses, including the Badimia neighbours, include the whole of the claim area within their accounts of Badimia territory.  He also accepted that there is a considerable body of ethnography which pre-dates the NTA and which would support the conclusion that the Badimia and the Widi are one and the same people.
(18)	There are no overlapping claims over the claim area.  It is submitted that the evidence of the neighbouring witnesses, Clarrie Cameron, Lance Mongoo, Darren Farmer and Kevan Davis as well as the lack of any overlapping claims is demonstrable evidence that the claim area is traditional Badimia country.
State’s submissions
112		On the question of the sovereignty boundaries of Badimia country, the State notes and submits as follows:
(1)	Bates produced written material and maps which identify the Aboriginal groups in and near the claim area as she recorded them in the period 1900‑1912.  Relevant parts of that material are in evidence.
(2)	Mr Robinson concluded simply that it “provides general support for the location of Badimia people in and near the claim area in the period 1900 to 1910”.
(3)	In his first report, Mr Robinson included Bates as one of the ethnographers upon whom he would place most weight.  However, addressing the detailed account of Bates’ findings presented by Dr Brunton, Mr Robinson in his supplementary report expressed reservations about Bates’ work: that she did not spend much time in the area and that others (such as historian Bob Reece) have been critical of her.  Most surprisingly, rather than maintaining the weight he had earlier placed on Bates, Mr Robinson now said while he did not dismiss all of Bates’ work he “would attach far less weight to Bates’ research” than Dr Brunton.  The expressed reasons for this change of view were explored in cross‑examination and were shown, with respect, to be insufficient to justify it.
(4)	Dr Brunton conducted a more thorough analysis of the Bates material and concluded that Bates ascribed the claim area to a number of different groups.
(5)	Relevantly, Bates identified a group she labelled “Baadeemaia” around Mingenew and Yandanooka.  This group she identified as not using a male initiation rite and part of what she classified as the “Nor’west Nation”.  They also lacked any section system.  By contrast, Bates identified people she labelled “Badimaia” at Yuinmery, about 30 kilometres east of Sandstone.  This group she identified as using a male initiation rite and part of what she classified as the “Central Areas Nation”.  They had a four section system (Bates identified three different such systems operating in different parts of the claim area).  One of Bates’ informants for the “Badimaia” was a “Badimaia” man called “Baueljara”, who (while at Rottnest Island) drew a map of his country, all of which was east of the claim area.
(6)	Bates’ map of the geographic distribution of tribes represents her written material in graphic form and is consistent with the written material in all relevant respects. It is an important piece of evidence in this proceeding.
(7)	The map shows the locations of the “Baadeemaia” and “Badimaia”, as well as other named groups between them and in other parts of the claim area.  Importantly, as Dr Brunton identified, Bates’ map clearly places both the “Baadeemaia” and “Badimaia” outside the claim area.  Mr Robinson did not accept that the triangular area on the map around Mingenew and Yandanooka was intended to depict the “Baadeemaia” location, saying it “simply means she’s found people at those locations who identify as Baadeemai”.  This is despite the fact that Bates’ written material, compiled by Isobel White, ascribes the same area to that group (that is, the map and text are consistent).  Mr Robinson is clearly in error in this respect.
(8)	The Bates material to which Mr Robinson was taken in cross-examination (and which was among the material relied upon by Dr Brunton in his reports) clearly indicates that the “Baadeemaia” and “Badimaia” were different groups in her view.  For example, in his supplementary report Mr Robinson claimed that Dr Brunton was in error to state that the “Baadeemaia” were classified as part of Bates’ non-initiating rite “Nor-West Nation”, citing a sentence from White’s compilation of Bates’ work, which said that her “Nor’west Nation” included non‑initiating tribes, and then opining that this implied that it therefore also included initiating tribes (and that the “Baadeemaia” would be one of those initiating tribes).  However Mr Robinson unhelpfully omitted Bates’ next sentence, which made it clear that the tribes of the “Nor’west Nation” “come under one heading fundamentally in the absence of … [initiating]”.  Other Bates notes, as well as the map which is exhibit 46, are also inconsistent with Mr Robinson’s opinion and confirm that it was Bates’ view that the “Baadeemaia” of the “Nor-West Nation” were a non-initiating tribe and, accordingly, different from the initiating “Badimaia” of the “Central Areas Nation”. 
(9)	Contrary to Mr Robinson’s comments in his supplementary report, Dr Brunton did not seek to dismiss White’s volume or prefer Bates’ working notes over it on the basis that White’s volume was “an exception”.  The “exception” identified by Dr Brunton merely referred to the spelling of “Badi-maia” in one place in that volume, not to the substance of the material (which supports Dr Brunton’s opinion).
(10)	Mr Robinson’s reluctance to accept that Bates identified the “Baadeemaia” as non‑initiating is, with respect, most puzzling.  His opinion in that respect is simply unsustainable.
(11)	Bates’ map ascribed the bulk of the claim area to “Wajjaree” and “Aggardee”, as well as “Wanmala” in the north‑east and “Thowangoo” and “Batteega” in the south.  The territories of different groups are marked with different colours and clear boundary lines.  The “Wanmala” and “Wajjaree” boundaries, for example, can be seen converging at Mount Magnet.  The map contains separate annotations for “Wadhari” north‑east of Yalgoo and an “x” linked to “Wirdiwonga” south of Yalgoo.
(12)	Importantly, as Dr Brunton pointed out, Bates consistently in different documents attributed Mount Magnet and the vicinity as Wajarri country.  She separately produced a map of areas of land between just north of Yalgoo and just west of Mount Magnet which she identified as sacred to the Wajarri people. 
(13)	Bates also analysed the different section systems described by her informants and produced a regional map, reproduced in Dr Brunton’s first report.  Consistent with her other maps, it depicts the claim area as being divided between groups with different section systems.  Although it does not depict the “Badimaia” at Sandstone, it again depicts the “Baadeemaia” at Mingenew and Yandanooka, outside the claim area.
(14)	In summary, the Bates material is substantial and consistent in its description of tribal, local and social organisation in the claim area.
(15)	Working in the 1930s, Davidson associated the “Bardimaia” with only a small part of the claim area, namely Paynes Find and south of Yalgoo, and with Mullewa, Mingenew and Three Springs.  He identified a different group he named “Kandari” as occupying the Mount Magnet and Sandstone areas in the north and north‑east of the claim area.  As Dr Brunton pointed out, Bates identified a pool called “Kundari” in the area described by Davidson.  Davidson’s description of “Kandari” also corresponds with the area ascribed by Bates to Wajarri in her 1913 paper.
(16)	Mr Robinson did not appear to have considered Davidson’s data closely, but said it was “too slight to reach a conclusion as important as this”.  He did not consider there was a separate Kandari group, apparently on the simple basis that the name “Kandari” did not figure in other ethnographic literature. 
(17)	Dr Brunton considered the data much more closely.  He also noted, for example, that Davidson had identified a large number of “Kandari” words and that these bore a strong similarity to Wajarri words and a dissimilarity to Badimia words. 
(18)	Davidson’s vocabulary cards are exhibit 42.  It is unambiguous on their face that he understood “Kandari” to be a distinct linguistic or tribal group with a distinct territory, equivalent to other language groups such as “Injibandi”, “Bailgu”, “Widi” and “Bardimaia”.
(19)	Tindale’s 1940 map divided the claim area roughly equally between four groups: “Kela:Mai”, “Wardal”, “Waula” and “Widi”.  The informants for that map included two people asserted to be ancestors of members of the claim group: Jimmy Little and Wally Walter.  Both Mr Robinson and Dr Brunton agreed that “Wardal” may have been a directional term, rather than a group name.
(20)	On his 1974 map, Tindale retained similar boundaries, but replaced “Wardal” with “Barimaia”.
(21)	At both points, 1940 and 1974, Tindale ascribed most of the south and east of the claim area to “Kela:Mai” and “Kelamaia” respectively.
(22)	Dr Brunton expressed some reservations about Tindale’s conclusions and Mr Robinson said he placed even less weight on Tindale than Dr Brunton did.
(23)	Working in the 1950s, Fink identified the name “Badimia” with only about the western third of the claim area.  When asked about this in cross-examination, Mr Robinson appeared to agree, but ultimately said (inaccurately and unhelpfully, in the State’s respectful submission) “she didn’t have a view” about tribal locations.
(24)	Fink reported that the “Widi tribe”, which originally inhabited the area south-east of Mullewa, had died out by the time she did her work in the region.
(25)	Fink’s informants included Rita Thompson (Mrs Thompson) and Joe Benjamin, both identified by the claimants as Badimia ancestors.
(26)	Douglas conducted linguistic research in the Murchison region in the 1960s, including Mullewa and Mount Magnet.  His informants included Arthur Fogarty, the grandfather of Darryl and Gloria Fogarty.
(27)	Douglas identified two distinct dialects of the Murchison language: “Patimay” and “Witimay (wirdimai)”, associating the former with the area north-east of Mingenew and the latter with the area north of Paynes Find.
(28)	Randolph conducted research into the Warrdagga site near Lake Moore in 1977.  His informants were Henry Samuels, Joe Benjamin and Jim Clinch, who are all said by the claimants to be Badimia people.  Randolph noted that “discussion with the informants has yielded new information on the boundary of the Barimaia group” and he indicated that the boundary ran from Mullewa and Morawa to Berkshire Valley near Moora and north to Coodardy Station and Yalgoo.  This area is mostly outside the claim area to the west. Randolph noted that there had been a modern “south-west displacement” of the boundaries but that this was consistent with a general trend in the region.
(29)	Kingsford and Dunn were a husband and wife team who worked in the region in the 1980s.  Both identified “Badimaya” with locations mainly in the south‑western quadrant of the claim area.  They produced maps which cover much of the claim area but exclude the eastern area, including Wydgee Station, for example.  Mr Robinson conceded that his first report was incorrect in stating that their maps covered the whole claim area.
(30)	Mr Robinson did not refer to the recent 1993 work of Davis in his first report.  Dr Brunton indicated that he was surprised by that omission because Davis’ map came closest to matching the claimants’ account of Badimia boundaries.
(31)	Dr Brunton pointed out that Davis’ work was of no real assistance because it had been very much discredited by anthropologists and, in any event, was not intended as a pre‑sovereignty account.  The State agrees Davis’ work lacks credibility and notes that it has not featured in other native title decisions.
(32)	Mr Robinson appeared to place belated weight on Davis’ work in his supplementary report and oral evidence.  In his supplementary report, Mr Robinson related a private conversation he said he had with Davis which Mr Robinson said bolstered his view that Davis’ map should be given weight.  Apparently Davis told Mr Robinson the map was intended to show sovereignty boundaries.  This contradicts the general understanding held by Davis’ anthropological peers of his work, for example, Peter Sutton pointed out that Davis’ map was “clearly not intended to be an antiquarian map, one that shows Aboriginal tribes and their territories where they were calculated to be at the time of colonisation.  According to the Davis map itself it ‘records the actual knowledge of senior traditional custodians at the time of investigation’”.
(33)	The debate about Davis’ credibility was probably not definitively resolved in this proceeding but is, in any event, moot due his work’s contemporary focus and/or origins.
(34)	The claimants’ case in relation to this issue suffers, with respect, from being based on an erroneous conflation of (on the one hand) the attitude of some of the Badimia witnesses to the individuals who are involved in the present day Widi Mob native title determination application (WAD 6193 of 1998) and (on the other hand) the ethnographic evidence about Badimia and Widi in earlier times.
(35)	There is no doubt that some witnesses, when asked about the Widi Mob native title determination application, expressed the view that the Widi Mob claimants were really, or may potentially be, Badimia people.  That may or may not be true.  Others said that they had never heard of Widi until recently.
(36)	The State does not have any reason to dispute in this proceeding the apparent view of the witnesses that the Widi Mob native title determination application is spurious or that its members are really Badimia or not Widi.  In fact, the State holds no view about whether or not there are today any people who may legitimately identify as Widi people.
(37)	However, that has no bearing at all on whether or not Widi and Badimia were, in earlier times, distinct groups.
(38)	The ethnographic evidence is entirely consistent with the proposition that, at sovereignty, there was a distinct language group identified as “Widi” or “Wirdi Wonga” or another homonym and that this group was distinct from Badimia.  That was the view of the early researchers, Bates and Davidson.  That was what Tindale recorded on both his 1940 and 1974 maps.  It was what the linguist Douglas identified in the 1960s.  Even Kingsford identified a distinct Widi territory, contrary to Mr Robinson’s evidence in his first report.
(39)	Most relevantly, Fink reported in 1958 in relation to the area south-east of Mullewa that “the original inhabitants (of the Widi tribe) have died out and the natives now to be found in the area have moved there in recent times from places further east”.
(40)	Although the claimants’ submissions seek to imply the contrary, Dr Brunton very clearly maintained in cross-examination his view that the ethnographic evidence, particularly of Bates, supported the inference that Widi and Badimia were distinct groups at sovereignty.
(41)	In the State’s submission, all of that evidence is consistent with the proposition that there was at sovereignty a distinct Widi group and that that group has over the course of the history of European settlement declined, so that as time progressed it became harder to discern and today it is non-existent.  That is the clear pattern discernible in the ethnographic evidence (including either of the two competing interpretations of what Maggie Bell may have said to Tindale in the late 1960s).
(42)	In the face of that evidence, it would be an error for the Court to find, on the basis of contemporary opinion among Aboriginal people, that Badimia and Widi have always meant the same group.  The claimants’ apparent case that, in any historical account, Widi can simply be read as Badimia has no firm basis in the evidence.  It is an assumption, based on the contemporary composition of the Widi Mob native title determination application, contradicted by the ethnography.
(43)	Mr Robinson ultimately accepted that his opinion that the whole claim area was traditionally Badimia country involved aggregating all of the various ethnographic accounts together.  If one did that, Mr Robinson’s somewhat modest conclusion was that the aggregated account “provides support” for that opinion.
(44)	In the State’s submission, such an approach is obviously flawed. One cannot create a legitimate single account of the territory of a traditional group by piecing together in a mosaic fashion parts of a series of accounts, each of which is inconsistent with the intended whole.  In Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150 at [405]‑[408], Sackville J criticised the same “cumulative approach” being taken to the question of the content of traditional law and custom in that case.  The State submits that the Court must reach the same conclusion by analogy here.
(45)	In the State’s submission it is clear that there is no pre-native title era account which corresponds even remotely with the claimants’ assertion that the whole of the claim area was occupied by Badimia people at sovereignty. Instead, every account ascribes the claim area to three or four different groups. And every account places Badimia or similar groups either completely outside the claim area or in only part of it.
(46)	It is not sufficient, with respect, for the claimants to merely submit in effect that all of the 20th century ethnographers were wrong and may be disregarded because the present day Aboriginal witnesses believe all of the claim area was Badimia country.  That is the approach repeatedly urged upon the Court in the claimants’ submissions.  Mr Robinson also approached the issue by giving primary consideration to the contemporary witness statements and transcript.   Sackville J in Jango at [460] to [462] identified why that approach is unhelpful to the Court.
(47)	In any event, as has been noted above, Mr Robinson’s approach to the question has resulted in him being unable to express a definitive opinion on the issue.
(48)	Dr Brunton pointed out that earlier ethnographic information, obtained from people living much closer in time to the assertion of sovereignty, was more likely to capture the pre-sovereignty position.  In his opinion, one cannot primarily rely on claimant evidence to establish the position at sovereignty or early contact.  In the State’s submission, Dr Brunton’s approach mirrors, as well as being logically incontrovertible, the correct legal approach following Yorta Yorta and Jango.
(49)	The correctness of Dr Brunton’s approach is fortified by the unanimous expert evidence that there was a high degree of mobility of Aboriginal people in and out of, and within, the claim area from the very earliest days of European settlement and by the historical evidence going to the same question.  All of that evidence demonstrates the very high likelihood of changes in boundaries since sovereignty.
(50)	The combination of the ethnographic and historical evidence raises a clear inference of change since sovereignty.  This means that it is impermissible for the Court to infer from Aboriginal evidence that the present day claimants’ views about contemporary Badimia “society” are traditional.  The relevant paragraphs of the claimants’ submissions must be rejected.
Claimants’ reply submissions 
113		In reply, the claimants note and submit as follows:
(1)	The State submits that the body of ethnographic and other historical evidence before the Court “compels” the Court to find that at sovereignty, the claim area was occupied by a number of different groups only one of which was Badimia.  This issue has been canvassed extensively in the expert anthropological evidence and the claimants refer the Court to the claimants’ submissions.  Mr Robinson dealt with this issue at length in his supplementary report in particular, and in his oral evidence:
I’m still of the view that the - the weight of evidence, from the documentary record, from the ethnographic record, and from the witnesses, points to the whole of the claim area being within a wider Badimia territory, and that no other group had rights and interests there.  And, I mean, I can - I’m in a position where we can go through each one of these sources in turn and - and analyse them, which I’ve done in my reports.  But I’m not persuaded by Dr Brunton’s arguments on any of these topics that any group other than the Badimia were in occupation of the claim area - the claim area at sovereignty.

(2)	The State submits that Mr Robinson ultimately accepted that his opinion that the claim area was traditionally Badimia country involved “aggregating” all of the various ethnographic accounts together.  The State contends that if one did that, Mr Robinson’s “somewhat modest conclusion” was that the aggregated account “provides support” for that opinion.  The State cites Mr Robinson’s cross-examination in support of that submission and submits that such an approach is “obviously flawed”.
(3)	At the transcript references to which the State refers, Mr Robinson’s evidence was that if you look at all of the ethnographic sources as a whole, they all generally locate Badimia people “within the area that I would expect them to be at”.   This led counsel for the State to suggest to Mr Robinson that what he meant “effectively” was “if you aggregate them together”, “you can add up to something which looks like your account”.   Mr Robinson’s response was to agree with that proposition only “in a sense”. 
(4)	Mr Robinson went on to explain that there were difficulties with each of the ethnographic sources but they are broadly consistent with, and certainly not “widely inconsistent with”, the conclusion which he draws from the claimants’ evidence about the extent of traditional Badimia country:
MR RANSON:  I was simply trying to clarify the point I was making so that we could deal with the one similarity I’m dealing with which is that they all ascribe the area to different groups.

MR ROBINSON:  No, well that’s the point I’m trying to make is that they don’t ascribe areas to groups at all.  They’re very rough approximations; when Fink puts the word Badimia on a typed map, I don’t understand her to be drawing any boundaries around a cultural group called Badimia. She’s from the location and standpoint of the Wajarri who she was dealing with.  You’re saying in this general direction are Badimia people.  But I don’t think she intends that to be a representation of a traditional boundary.  In that context, each one of these authorities you’ve led me to are drawing lines on maps or putting words on maps for a variety of reasons.  I don’t think you can compare all these sources in the same way, except to say what I’ve said which is that they are broadly consistent with the conclusion I would draw from the claimant evidence, that this is the extent of traditional Badimia country.  They’re not widely inconsistent with that. 

(5)	What Mr Robinson is saying is that he has considered the claimants’ oral accounts and all of the relevant ethnography and, taken collectively, the ethnography is broadly consistent with the claimants’ accounts.  That is not a “flawed” approach to determining the identity of the pre-sovereignty society.
Consideration 
114		The claimants’ direct evidence generally supports what is alleged in the  claimants’ SFIC and Minute of Proposed Amended Native Title Determination Claimant Application (Form 1) filed 1 August 2001 (claimants’ application or Form 1), namely, that the claim area is wholly within traditional Badimia country.  The claimants’ evidence is also supported by the evidence of Aboriginal witnesses – namely Clarrie Cameron, a Nhanhagardi elder, and Lance Mongoo, a Wajarri man – who identify as belonging to Aboriginal language groups which consider themselves traditional neighbours of the Badimia.
115		The evidence given by the claimants and those other Aboriginal witnesses was primarily based on what they understood from what their now deceased elders had told them.  
116		Claimant evidence on key issues must be given due weight in a proceeding such as this.  Where, however, other evidence, including ethnographic data, challenges such evidence, all the evidence must be carefully weighed before a final verdict is reached on each issue, which will often only be arrived at by drawing inferences and on the balance of probabilities.  
117		There is no issue here that the Aboriginal witnesses did not give their evidence truthfully or that they did not genuinely believe that they and their ancestors were Badimia people and that the claim area has always been Badimia country.  A question arises whether it should be inferred, in light of European ethnographic data and other evidence, that their understanding about those things has been affected by post-sovereignty events, and whether the claimants have satisfied the Court that the claim area is traditional Badimia country.
118		The first question, however, is what this ethnographic data reveals.
119		In dealing with the ethnographic data, the Court, at least to some extent, is required to view it through a lens misted over by time.  In that regard, the expert anthropological evidence is calculated to assist the Court to see the data more clearly.
120		Considering first the ethnographic research conducted soon after the Second World War, there is something of a gap between what the claimants now say and what Fink noted in the 1950s.  The Court chooses to start here in the 1950s, as Fink’s works begin to reveal what researchers were observing in more modern times, a hundred years or so after the first contact between Aboriginal and European peoples.  Armed with these observations, the Court considers the earlier data may more usefully be regarded.
121		Fink did her PhD research in the 1950s.  She was based in Wajarri country in Mullewa.  Her work was not focussed on the Badimia but they figure, at least incidentally, in her work.  She was concerned to study the effects of assimilation policies on Aboriginal people.  She met “town dwellers”, “fringe dwellers” and other Aboriginal people still on pastoral stations.
122		Fink produced two maps with her work.  It is accepted all round that these maps do not purport to indicate “tribal” boundaries.  On one map the Badimia are placed just south of Mullewa, and on the second, slightly east of there and south of Yalgoo.  Both those locations are to the west of and outside the claim area.  
123		Fink’s written notes also talk about country of the Badimia being south-east of the Mullewa‑Cue railway line, although she did not define the eastern bounds other than to  note:
Padimai/Yalgoo – Magnet – Paynes Find – Nyngan

Some pages later there is the statement:
Language Magnet to Cue bagumaia – people Bugalgora[?] all died out.  From Magnet to Sandstone Ngalubalinggu called tribe Malia

124		On the face of those maps and research notes, Fink, in the 1950s, did not obviously associate the eastern parts of the claim area with Badimia country.
125		Thus, if one were to rely only on Fink’s maps as providing some reasonable indication of the extent of traditional Badimia country, then Badimia would be associated with some, perhaps a little more than the western third, but not all of the claim area as at sovereignty.  
126		There are a number of assumptions or observations to be made about Fink’s work.  The first, which has already been made, is that she was not focussed on an ethnography of the Badimia people and their “tribal” boundaries in her work.  Secondly, the provenance of her Badimia data is not clear.  Thirdly, a point that Mr Robinson made in cross‑examination, Fink did not necessarily express any such view about the extent of Badimia country as is now attributed to her.  That is to say, in the course of this native title hearing, it has been the anthropologists and counsel for the parties who have sought to ascribe views to earlier ethnographers, such as Fink, when that may or may not be appropriate.  In other words, one may need to be cautious about attaching too much significance to data that was not collected with the express purpose of resolving an issue such as that now at hand.
127		In the circumstances, the Court considers Fink’s notes and the statements recorded by her may be said to be what they are.  They are useful but not determinative of traditional country boundary issues.  They raise questions about whether traditional Badimia country extended into the (roughly) eastern two‑thirds of the claim area, including around Mount Magnet.  They correlate with the Aboriginal witnesses’ direct evidence to the extent that they show that ethnographic research in the 1950s associated Badimia with a part of the claim area.
128		Following Fink, Kingsford and Dunn, in the 1980s, were the next to undertake formal research in relation to the Badimia, Kingsford for his anthropology masters thesis and Dunn for her masters thesis in linguistics.   They were a husband and wife team who worked together.  Their reports are separate but they seem to have settled upon similar maps of the area they worked in.  Mr Robinson agreed that they worked in conjunction in many respects and that their maps were largely identical.
129		While Mr Robinson initially considered that the maps used by Kingsford and Dunn included all the land in the current claim area, and extended further west and south as well, he later accepted that that was not so.  In cross‑examination he said that he regarded the Kingsford and Dunn maps as not intended to be “geographically accurate”, noting they were oval in shape and had broken lines.  He said he interpreted them broadly to be rough approximations of where Badimia country was, and not to represent “tribal boundaries”.  But he accepted that the whole of the claim area was not within the maps.  He said, however, the maps covered a substantial portion of the claim area, in terms of the pastoral stations identified.  He accepted that only portions of the pastoral stations mentioned in Dunn’s maps might be included in the claim area.
130		Leaving aside the extent to which the country identified as Badimia in the Kingsford and Dunn maps more or less correlates with the claim area, it should be noted that this work was conducted in what is often referred to as the “pre‑native title era”.  That is to say, that it cannot be said that the research or the information provided to the researchers was somehow skewed because informants understood it was to be used to advance a native title claim, in which the identification of traditional boundaries is critical.
131		Nonetheless, the observation was reasonably made by Dr Brunton that research conducted in the 1980s, as this research was, based on data received from informants such as Joe Benjamin, may have depended too much on the views of persons, then alive, who identified as Badimia, and their life experiences on pastoral stations, without sufficient regard being paid to earlier ethnographic data suggesting contrary views.  
132		There is no doubt that, in every native title case, what the Aboriginal witnesses believe to be a true account of traditional boundaries must be carefully regarded.  That is not to say, however, as suggested above, that their opinions and beliefs are beyond critical examination, especially as to their foundations, and that earlier ethnographic work is not relevant to an assessment of the weight to be accorded to their evidence.  Where earlier ethnographic work is apparently based on information provided by ancestor members of a claimant group, that data also needs properly to be evaluated and regarded in the final consideration of all the evidence on boundaries.
133		All that said, the data assembled by Kingsford and Dunn provides more support for the evidence of the Aboriginal witnesses about boundaries than other (earlier) ethnographic data because it appears to include more of the claim area within those traditional boundaries and was based on information supplied by persons who identified as Badimia, including Joe Benjamin (who is mentioned further below in the discussion of the claimed apical ancestor, Timothy Benjamin).
134		Prior to Fink’s and Kingsford and Dunn’s research, Tindale had been in the field, first in the late 1930s and later in the mid‑1960s.  Tindale’s epic works, including his Aboriginal Tribes of Australia (Australian National University Press, 1974) have been referred to by the anthropologists.  In 1939 Tindale apparently acquired information concerning areas in the Murchison from Aboriginal people at the Moore River Native Settlement, well to the south‑west of the claim area.  One of his 1939 informants appears to have been Jimmy Little, son of Polly Little (another of the claimed apical ancestors discussed below).  In 1940, Tindale produced a map which effectively located four groups, none of them Badimia by name, in the claim area – the “Kela:Mai”, “Widi”, “Wardal” and “Waula”.  
135		There is reason not to put terribly much store on this first Tindale map and its “tribal” country allocations.  Dr Brunton was not convinced by it and Mr Robinson gave it even less weight.  One of the problems is, as both anthropologists agree, there never was a tribal group known as the “Wardal” – that was simply a directional term, that is, an Aboriginal word indicating the direction in which other Aboriginal people lived.  Thus, those other Aboriginal people appear to have become “the Wardal people”.  Indeed, according to Mr Robinson, Tindale later appears to have accepted that the expression was a directional term.
136		This information rather supports the view expressed by Mr Robinson that Tindale’s data in the broader region of the claim area was, when compared with his data in other areas of Australia, “weak”.
137		So far as the reference to the Widi people on the map is concerned, Dr Brunton and Mr Robinson both agreed that Wally Walter, aka Walter Ninghan, provided that information to Tindale, again apparently while he was at the Moore River Native Settlement.  Wally Walter was the son of Ninghan Freddie (another of the claimed apical ancestors discussed below).
138		Whether Widi is but another name for, or a sub-group of, the Badimia is an issue discussed further below.  The State submits no, the claimants yes.
139		Tindale continued his Australia‑wide research over many years.  In his 1974 map, accompanying his Aboriginal Tribes of Australia, he identified a group called “Barimaia” as occupying some of the claim area, but maintained the view from his 1940 map that other parts of the claim area were identified with the Widi and “Kelamaia”, as well as, “Ko:ara” coming in from the east.  The Barimaia area correlated with what was previously the Wardal area on the 1940 map.  The anthropologists accept, as the Court does, that Tindale’s “Barimaia” equate with the Badimia.
140		As Mr Robinson said in cross‑examination, there are numerous broken lines on Tindale’s 1940 map which may indicate that there were a number of approximations in Tindale’s mind at that time.  The Court also notes Mr Robinson’s evidence about how Tindale has the “Kela:Mai/Kelamaia” (usually accepted as being more towards Southern Cross) venturing too far towards the Badimia area.  His ethnography leaves questions hanging.  This all goes to suggest that ethnographic research concerning the traditional country of language groups or other, local groups in the vicinity of the claim area was still, for Tindale, at a developmental stage as at 1939, leading to Tindale’s 1940 map.  The 1974 map, while showing some advance in Tindale’s research by including the Badimia, does not, in the circumstances, remove all queries about the reliability of his underlying research.  
141		Nonetheless, Tindale’s data does not equate Badimia country with the claim area at any stage.
142		As a result Tindale’s research data, as of 1940 and 1974, must be approached with a degree of caution.  
143		The Widi have been mentioned now a number of times.  In 1966, Tindale, while conducting further research, spoke with Maggie Bell, amongst others.  It is accepted that Maggie Bell, who was born at Paynes Find, then described herself as Widi.  While there was some discussion between the anthropologists about exactly what Maggie Bell said to Tindale, the Court accepts the following record of the discussion, provided by Mr Robinson reading from Dr Fleet’s 2003 report, as being reliable:
According to Mrs Bell: their Widi country went north heading to Mount Magnet and they went there for meetings.  Their country cut off at Yalgoo and they went north‑west to Mullewa.  The Wajarri people called the Widi the Minango (southerners).  We (the Widi) call them bialja.  Yalgoo itself is bialja country.  Barimaya is another name the Wajarri gave to the Widi; we call ourselves Badimaya.  This is the same tribe, same language and laws.  Widi is what we call ourselves in talking; it means ‘no’.

144		On that basis, Mr Robinson expressed the opinion that Widi and “Barimaia”/Badimia at all material times were the same – same tribe, same language and same laws.
145		In the early 1930s and again in the late 1930s or early 1940s, the American anthropologist Davidson also conducted anthropological research in relation to the Murchison area, among others.  In his second tranche of research, Davidson appears to have been aware of Tindale’s work as of 1940.
146		In his research notes, Davidson identified a group that he called “Bardimaia”.  His data was meticulously written out on index cards, referred to at the hearing as “vocabulary slips”.  It appears that Davidson had a Badimia informant because he made a note to that effect.  
147		It would appear that the vocabulary slips, which went into evidence as exhibit 42, were made by Davidson during his second period of work in Australia as they are drawn from a manuscript collection dated “c1942”.  That would appear to be a correct dating because, in vocabulary slip number 266, Davidson makes reference to Tindale and the “WIDI” – which would appear to be a reference to Tindale’s 1940 map.  
148		In vocabulary slip number 266 Davidson wrote:
WIDI-WONGA widi, no in BARDIMAIA.  Natives around Mount Magnet apply to dialect spoken from there to Yalgoo and Mullewa in BARDIMAIA.  Tindale, p. 213, accept WIDI, WIRI as tribal name.

From KANDARI to WAGJRI, wadji, no.

The reference to “Tindale, p.213” correlates with page 213 of Tindale’s “Distribution of Australian Aboriginal Tribes: A Field Survey” (1940) Vol 64 Pt 1, Transactions of the Royal Society of South Australia, pp 140-231.
149		The underlining of “widi” and “wadji” in this vocabulary slip is obviously a reference to the meaning of those Aboriginal words – meaning “no”.  
150		Vocabulary slip number 275, in relation to “Bardimaia” specifies:
Tribal name for Aborigines at Mullewa, Three Springs, Mingenew, Paynes Find and south of Yalgoo.  Territory includes much of area assigned WIDI by Tindale, p. 213.  widi, no.

151		Then in vocabulary slip number 292, for “Kandari”, Davidson wrote:
Mount Magnet, Biringara, Sandstone, Meekatharra, Nannine, Cue.  Their dialect said to be understood as far as milly-milly.  BARDIMAIA at Mingenew associate KANDARI with Cue and eastward.

152		Again, it is difficult to construct any strong conclusions on this data of Davidson.  It leaves unanswered questions of traditional association around Mount Magnet.  As Mr Robinson also pointed out, “Kandari” is not a language group name, so that adds to the complications.  He pointed out there was a site called Kandari and that may have something to do with the name.  But, in his notes, Davidson is drawing a distinction, apparently, between his “Bardimaia” and Kandari.
153		It is also interesting to note that, in vocabulary slip number 292, the second sentence makes it clear that Bardimaia at Mingenew associated Kandari with “Cue and eastward”, which is to say with an area to the north and east of Mount Magnet and not necessarily including Mount Magnet.
154		As to the first part of vocabulary slip number 292, the reference to Mount Magnet, along with the other places mentioned, appears to relate to the extent to which the “dialect” spoken by people identified as Kandari is spoken.  That does not necessarily indicate that the Mount Magnet area itself was part of the traditional country associated with that “dialect”, but it certainly raises the question of whose country that area traditionally is.  A case can be made that, on the face of it, the Badimia at Mingenew were not identifying the Mount Magnet area as Badimia.
155		So far as the references to the Widi and the Bardimaia/Barimaia/Badimia are concerned, the Court considers that there is much in the vocabulary slips of Davidson, when combined with the statement later made by Maggie Bell to Tindale, and the evidence of the Aboriginal witnesses referred to in the above submissions of the claimants, to conclude, on the balance of probabilities, that no significant distinction was drawn in times long past between some group called “Widi-Wonga” or “Widi” and the Badimia.  It is clear enough that the word Widi means “no” in the Badimia language, suggesting a least a close relationship between the two.  
156		There is no strong evidence in the ethnographic material, in the view of the Court, to disprove the firm statements of the Aboriginal witnesses at the hearing of this proceeding, that the territory associated with the Widi was also associated with the Badimia.  The 1980s work of Kingsford and Dunn also tends to support the claimants’ assertions in this regard, making no relevant mention of Widi.
157		We then come to Bates, the first ethnographer to obtain data having relevance, for present purposes, to the claim area.  From evidence before the Court, Bates at least as early as 1903‑1904 had exhibited interest in Aboriginal research.  At that stage she was engaged as a journalist for the Western Mail and when travelling in different parts of Western Australia appears to have obtained information concerning Aboriginal peoples.
158		The evidence suggests that in 1903 Bates was commissioned by the Western Mail to report on mines in Peak Hill, Meekatharra, Nannine and other centres and, in 1904, was commissioned by the Western Australian Government to research and write an account of the languages of the State’s Aboriginal peoples.  That commission was later extended to cover culture and social systems and she held this position until 1912.  
159		I accept the opinion expressed by Mr Robinson, following his cross‑examination that in the earlier period of her engagement it does not seem that Bates conducted formal anthropological research.  As Mr Robinson suggested, it may have been that in the process of her work as a journalist investigating mining centres, she collected information about Aboriginal people, but there does not seem to be a body of material in her notes or publications that stems from that earlier period.  To the extent that some writers have suggested to the contrary, what Mr Robinson says seems to have weight.
160		Mr Robinson said that he was not saying definitively that Bates did not make any inquiries about Aboriginal culture as early as 1903-1904, for plainly she had an interest in Aboriginal issues and had had the interest for some time.  But it was not true to say this was the focus of her work in the earlier period.
161		In that regard, Dr Brunton considered, fairly in my view, that Bates was “opportunistic” and that she continued to obtain information relating to Aboriginal peoples while she was engaged as a journalist in this earlier period.
162		I also note that Mr Robinson questioned whether Bates was commissioned by the State in 1904, because the later work, as he understood it, did not take place until 1908.  I accept it is one thing to be commissioned to produce a work, and another actually to produce it.
163		On any view it appears that Bates, motivated by a strong interest in Aboriginal culture in Western Australia, sought to bring herself up to speed by reading numerous materials in the early part of the 20th century once she was commissioned by the Western Australian Government to report on Aboriginal languages.  See generally White, “Daisy Bates: Legend and Reality” in Marcus J (ed), First in their field: Women and Australian Anthropology (Melbourne University Press, 1993).
164		Mr Robinson accepted, however, as does the Court, that Bates did proceed to conduct what might be called substantial research in the area in 1908 and then again when she returned to Sandstone in 1910.  In 1908 she was in the Bernier and Dorre Islands well to the north‑west of the claim area.  In between, in 1910-1911 she was in the Sandstone area, and then on Rottnest Island.  
165		The anthropological work and methodology of Bates, however, was not commended by Mr Robinson.  Mr Robinson, for example, expressed the view, based on his familiarity with her data (which I accept he has), that she was not an impeccable researcher.  So far as her work was concerned, Mr Robinson said he was more likely to rely on the published version of her work, in White (ed), The Native Tribes of Western Australia (National Library of Australia, 1985) than her unpublished notes.
166		What Bates’ data appears to indicate (in either source) is that, on the coastal side of a rough line drawn from near Roebourne, near the Pilbara coast, south, and not far inland from the coast, taking in the south-west (Bibbulmun) region of Western Australia, traditional male initiation rites were not conducted (by comparison to male initiation rites that were conducted on the inland side of this imaginary line).  (The Court here, and earlier, has chosen to use the expression “male initiation rites” or “initiating rites” rather than the particular term used by Bates (and in submissions) to avoid raising concern by claimants and other Aboriginal readers as to the unthinking reference to sensitive cultural practices.)
167		Bates suggested a “Nor’west Nation” of non-initiating “tribes”.  A question arises whether her notes suggest this “Nor’west Nation” included a group who she described as the “Baadeemaia” said to be about Mingenew and Yandanooka (her “Yandanuka”) – although in one place she appears to spell the name of this group as “Badi-maia”, in the same way as she does the group she identified near Sandstone.  Bates appeared to contrast that group (which Dr Brunton for ease of reference calls the “western Badimia”) with the Wajarri, who were found by Bates to conduct the initiation ceremony.  .  It may be noted Bates’ identification of Baadeemaia around Mingenew and Yandanooka generally accords with Davidson’s data that the “Bardimaia” were, amongst other places, at Mingenew.
168		Bates’ observation was that this group “belonged to [the initiating tribe] the Wajjarri, but called themselves locally Badimaia”.
169		It is difficult to understand exactly what this statement is intended to convey in light of her apparently broader statement that members of the Nor’west Nation (including the Baadeemaia) did not practise male initiation rites – unless, despite Dr Brunton’s suggestion that Bates simply mis-spelled “Badimaia” – three times – in this note, intending to write “Baadeemaia” – she was here referring only to the eastern “Badimaia” group.  But this seems unlikely given the context in which Bates was making these observations – that is, in relation to the people in the Mingenew area, not near Sandstone.  
170		In cross‑examination counsel for the State suggested to Mr Robinson that there would be no reason to list the Baadeemaia separately if they were merely a subset of Wajarri.  Mr Robinson said that he did not know and Bates might have considered it important because that is how they identified themselves.  Mr Robinson did not accept an interpretation, on the face of the material, that Bates had clearly said, in other parts, that these groups, including the Baadeemaia, did not perform the initiation rite.
171		Bates’ material suggested that a group called “Batiga”, “was also a local section of the Wajarri tribe, which had encroached westward”.  
172		Counsel for the State suggested to Mr Robinson that this was an example again of the influence of Wajarri encroaching westward and Bates was not suggesting that the groups traditionally performed the initiation rite or were in fact part of Wajarri; but was simply noting the influence of the initiation rite of the Wajarri which was encroaching, through intermarriage and movement, towards the west.
173		Mr Robinson did not readily accept that proposition in cross‑examination and said the difficulty he had with it was that the “Batiga” statement was of encroachment not to the west, but to the south, as evident on Bates’ map showing the “Batteega” south or south and east of Lake Moore.
174		The Court notes it might also be said that Bates’ statement about the “Baadeemaia” unequivocally suggests that the group belonged to the Wajarri.  The note about the “Batiga”, however, suggests that it was a separate and distinct group from the Wajarri which had been influenced by Wajarri customs, including the initiation rite.
175		In the end, the Court draws the view, so far as the relevance of the Bates’ data concerning initiation rites is concerned, that Mr Robinson was correct to observe during cross‑examination that the data demonstrates that it is not easy drawing lines on maps and then saying people on one side are one thing and people on the other side are another thing.  The Court generally accepts Mr Robinson’s observation that it goes back to the point – that both anthropologists made – about mobility of Aboriginal people at the point in time Bates was collecting data, and that people from many areas could then be found residing away from their traditional country in other parts of the State.  There is, however, a certain consistency in the data of Bates and Davidson, and indeed of Tindale from 1974, that has the Badimia traditionally based around Mullewa, Mingenew and not so far as Mount Magnet.  Fink’s data fits that pattern too.
176		The further point, however, was also reasonably made by Mr Robinson, including in the course of cross‑examination, that, if one inspects the map that Bates used in the course of noting the information she received, it is clear she made various stops on the train ride, first from Perth to Geraldton and then from Geraldton to Sandstone, collecting data along the way.  In his view, it cannot easily be concluded that when Bates noted that people of a particular defined group were at a particular location, that location was necessarily their traditional country.  However, the Court observes nothing in her notes suggests that her data should not be construed in that way.
177		Mr Robinson also provided the following explanation.  He said that he had discovered recently that, in the 1910 trip to Sandstone that Bates did with the visiting British anthropologist, AR Radcliffe‑Brown, she spent five days in the Carnamah area (outside the claim area) prior to Radcliffe-Brown’s arrival, with one Grant Watson.  She made the observation in her file that when she went there with Watson she found people from as far away as Roebourne camped at some of the pastoral stations.  Mr Robinson said that when Bates made statements of that kind, she also noted people who have had the male initiation ceremony performed.  He was not sure that she was talking about people who were from outside the district.  Mr Robinson did not accept a proposition put to him by counsel for the State that Bates was endeavouring to distinguish those people from her Baadeemaia.  Mr Robinson considered that all Bates was saying, was that the people she mentioned had their “habitat”, whatever that means, where she noted it was.  I think, in all the circumstances, the reference to “habitat” may be taken at least as a reference to where those people usually lived, if not to part of their traditional country.
178		Mr Robinson said, and the Court is inclined to accept this observation (notwithstanding Dr Brunton’s concern Mr Robinson was a little too negative about her work), that what Bates wrote was not a piece of detailed field research.  She was often at a place for a day and a half, interviewing various Aboriginal people who happened to be there at the time.  As Mr Robinson said, such data hardly seems to be the basis upon which to reach important conclusions about the location of particular groups and the elements of their social organisation, religion and ritual.  However, the Court considers the data cannot be ignored and provides relevant information to be weighed with that of other researchers.
179		While, on behalf of the State, counsel suggested that the “Baadeemaia” or “western Badimia” (to use Dr Brunton’s expression) were also distinct, as a non-initiating group limited to locations at Yandanooka, Arrino, Three Springs, Mingenew and Woriano Spring, all outside the claim area (which all suggests Bates’ other data as to the location of Badimia traditional country is also likely to be reliable), Mr Robinson was not prepared to interpret Bates’ data in that way.  The Court accepts the caution expressed by Mr Robinson in adopting that approach but, as noted, considers the data has relevance, especially when read with the other data referred to, and must be weighed with all other relevant ethnographic data and the claimants’ evidence.  
180		Mr Robinson was also taken by counsel for the State to an enlargement of the map that Bates used on which next to the word “Baadeemai” appeared a small triangular portion that included Mingenew and Yandanooka.  Counsel for the State suggested to Mr Robinson that what Bates had done by drawing those lines was effectively to extend out a triangular area of non‑performance of the initiation rite in respect of the “western Badimia”.
181		Mr Robinson did not agree with that proposition because he thought that what the lines represented was the location at which she collected information, but he thought it was possible that what Bates represented here was that she went to Mingenew and Yandanooka, both on the railway line, and while there went to various out camps and found people who identified as “Baadeemaia”.  Mr Robinson did not think one could draw the conclusion from the field data that she was therefore saying that this is where there was a line of performance and non‑performance of ritual.  He thought she just happened to find people who had not been through that particular ritual.  He did not consider that any more could be made of it than that.
182		Again, while the Bates’ data raises the questions that counsel for the State raised with Mr Robinson in cross‑examination, the Court does not consider that it can reliably draw conclusions about the cultural practices of the “Baadeemaia” identified by Bates, as a general proposition, in all of the circumstances: or exactly where, on this type of map marking, the traditional country of the Badimia ran.
183		By way of contrast to the areas marked as “Baadeemaia” on Bates’ map, counsel for the State also noted that near Sandstone, quite a way to the east of Mingenew, a slightly different word, “Badimaia” had been written by Bates.  Dr Brunton for ease of reference referred to this apparently separate group as the “eastern Badimia”.
184		As counsel for the State also noted in cross‑examination of Mr Robinson, if one looks at that map of Bates, between Mount Magnet and the “Baadeemaia” at Mingenew and Yandanooka (the western Badimia), and the Sandstone “Badimaia” (the eastern Badimia), the word “Wirdiwonga” appears.  And then between about Yalgoo and Mount Magnet the word “Wadhari” (Wajarri) appears.  Further from there to the south and west the name “Thowarngoo” appears, which is written on the map west of Lake Moore.
185		It is also apparent from the copy of the original map worked on by Bates that she endeavoured to colour in different areas and sections of the map of Western Australia in order to identify the boundaries of language groups, as she understood them to be from the work she had done.  It indeed would appear to be the case that that is what Bates was attempting to do.  Mr Robinson said at one level that was so and he pointed out, for example, that Bates was associating the “Wanmala” with a broad region near the claim area but then said that immediately near Sandstone there is an exception, in that Bates has located the “Badimaia” at Sandstone, within what she had hatched as Wanmala language country.
186		Mr Robinson considered therefore that, as Bates obtained additional material, for example following her visit to Sandstone with Radcliffe-Brown in 1910, she updated her representations.  Mr Robinson speculated that when Bates was in Sandstone in 1910 she spoke to Aboriginal people camped there while receiving rations from the Sandstone ration station, and found a number were from Mount Magnet.  Those people identified as Badimia and so she inserted them on the map at Sandstone.  Mr Robinson described this as his “supposition”, which I think is about as far as one can take it.
187		The Wanmala area on the Bates’ map depicted a relevant boundary generally running down through Nannine and Cue, more or less to where the townsite of Mount Magnet is, around Mount Kenneth and almost to Lake Moore before heading off in a south-easterly direction.
188		The result of this survey of the Bates’ data is that it suggests, as of circa 1910, there were “Baadeemaia” near or inside Bates’ initiation rite boundary line, to the west and south of the claim area (being Dr Brunton’s western Badimia), another group of “Badimaia” in the Sandstone area (Dr Brunton’s eastern Badimia), the Wirdiwonga in between, and the Wanmala otherwise traversing an area coming down from Cue, near Mount Magnet and across to Lake Moore, all within the current claim area.
189		On that basis, if one were to draw conclusions roughly based on the data of Bates, whether one focusses on the western Badimia or the eastern Badimia, or both, little of the claim area would be within Bates’ generalised Badimia locations.
190		The Bates’ data also suggests that, when at Rottnest Island in 1914, Bates spoke to an informant who identified as “Badimaia” from the Sandstone area, one Baueljara.  With his cooperation she apparently drew a map of his country.  It would appear to depict country to the east of Sandstone, outside the claim area.  There may, however, be some reasonable debate as to the topographical accuracy of the map in relation to Sandstone.  Mr Robinson’s observation may generally be accepted that one cannot read this hand‑drawn map as one would a European map.  There are many more places including a place called Challa, which he thought was the pastoral station of that name, which were in or near the claim area, but not represented in that way by this hand-drawn map.  He also thought that the location noted as “Yunmiri” may be Youanmi, which while not within the claim area was near to it.
191		Counsel for the State finally put to Mr Robinson the proposition that none of Bates, Davidson, Tindale, Fink, Kingsford or Dunn (or other early ethnographers) provide an account of traditional Badimia country that looked like the claim area, for which he (Mr Robinson) thought there was evidentiary support in the evidence of the Aboriginal witnesses.  Mr Robinson responded by saying that it depended on how one looks at the data as a whole: “they all generally locate Badimia people within the area that I would expect them to be at”.
192		To the proposition that he was effectively “aggregating” the areas from the ethnographic data to identify a claim area in the proceeding, as Dr Brunton had suggested in his first report, Mr Robinson responded that “in a sense” that is what he was doing.  Mr Robinson added:
I think it provides support.  I don’t think it matches exactly what other writers might say but I think it’s consistent with Badimia being at these places.  I don’t assert that these all exactly correspond with what I understand through the witness evidence to be the extent of Badimia traditional country.

193		Mr Robinson further explained that the point he was trying to make was that the research conducted by others did not ascribe areas to groups at all.  They were rough approximations.  Fink put the word “Badimaia” on a typed map, for example.  In that context, Mr Robinson considered that each one of the researchers was drawing lines on maps or putting words on maps for a variety of reasons and he did not consider that one could compare all those sources in the same way, except to say what he had said, which is that they are broadly consistent with the conclusion he would draw from the claimant evidence, that the claim area is within traditional Badimia country; “they’re not widely inconsistent with that”, he said.
194		The Court ultimately arrives at the position that, as noted earlier, there is no easy corroboration provided by research data from Bates’ pioneering work, through Davidson, Tindale and then more recently Fink, and Kingsford and Dunn, that makes it at all reliably clear where Badimia country traditionally ran at sovereignty. While some of the claim area may well have been traditional Badimia country at sovereignty, by reference to this data, not all of it is so identified; and it is difficult to say, on this basis, what parts are to be included, and what parts are not.  The data of Bates is confusing because while, on the one hand, the submission of the State, that the western Badimia in the Mingenew area were a non-initiating group (and not of the Wajarri) and had country well outside the claim area, is not readily to be dismissed, the fact is that Bates also obtained data that there was a “Badimaia” around Sandstone (on the eastern, initiating side of Bates’ imaginary line).  It is not at all clear that the western and eastern Badimia were separate and distinct groups with Widi in between.
195		The suggestion that a Wirdiwonga/Widi (which one may reasonably infer was the same group), on Bates’ information, were between the western Badimia and the eastern Badimia adds to the uncertainties.  If the Wirdiwonga/Widi are, as discussed above, treated as a part of, if not another name for, the Badimia, as the Court has inferred above that they should be, then linkages between the eastern Badimia, the western Badimia, and the Wajarri are provided and some of the apparent inconsistencies as to the location of traditional Badimia country may be said to fall away – but not all of them.
196		Bates’ data also leaves quite open a close relationship of the Wajarri and the Badimia.  They have, apparently, similar languages.  The ethnographic evidence overall does not suggest a clear boundary between the Wajarri and the Badimia.  The evidence of the Aboriginal witnesses, however, is that none of the claim area is traditional Wajarri country.  Nor does the evidence suggest that the Wanmala ever came into the claim area traditionally, although there may have been interaction, including violent interaction in times gone past from neighbours identified as Wanmala; who, as Mr Robinson explained, are sometimes seen less as a traditional language group and more as mythical raiders.
197		This is, therefore, one of those difficult cases where the older ethnographic record is not definitive and not overly helpful to the resolution of the boundary conundrum; and the Court has not found its resolution easy.  However, it must be said that, leaving aside Kingsford and Dunn’s 1980s work, little of the other ethnographic data places or suggests that anything like the bulk of the claim area was traditional Badimia country at sovereignty.  Different scenarios can be constructed by different skilful interpreters of it.  Kingsford and Dunn’s relatively scant work is the only such data which suggests that much of the claim area is traditional Badimia country.
198		In these circumstances, as Mr Robinson recognised, the strongest reason for concluding that the claim area corresponds with traditional Badimia country at sovereignty is that the Aboriginal witnesses say that it is, and, in effect, their evidence should sway the balance. 
199		The difficulty with this contention, however, is that the direct evidence of the Aboriginal witnesses concerning boundaries was not always consistent and could not be said to represent some consensus about boundaries.  
200		In this regard, as the State reasonably notes:
(1)	Leah Bell and Ollie George stated that Badimia country went further west than the claim area but they did not extend Badimia territory beyond the boundaries of the claim area in any other direction. 
(2)	Ron Bandy, Roderick Hedlam and Frank Walsh Jnr agreed that the northern and southern boundaries of the claim area were generally correct and that Badimia country extended further west.  However, Mr Bandy, Mr Hedlam and Mr Walsh also extended Badimia country east beyond the claim area.
(3)	Ashley Bell, Percy Lawson and Alan Walsh were of the opinion that Badimia country extended further west and south than the claim area but they did not suggest Badimia country extended further north or east. 
(4)	Coral Brockman agreed with Mr Bell, Mr Lawson and Mr Walsh that the eastern boundary of the claim area was correct and also that Badimia country extended further west and south than the claim area.  However Ms Brockman also extended the northern boundary of Badimia country beyond the current claim area.
(5)	Darryl Fogarty, Gloria Fogarty, Olive Gibson, Des Thompson and Joan Walsh all stated that Badimia country extended further west, east and south than the claim area, but generally agreed that the northern extent of Badimia territory was Lake Austin, roughly coinciding with the northern boundary of the claim area.  
(6)	Beverly Slater extended the boundary of Badimia country beyond the boundary of the claim area in all directions while, in contrast, Frank Walsh Snr’s  description of Badimia country roughly matched the claim area.
(7)	In addition, even among witnesses who said that Badimia country continued beyond the claim area in a particular direction, there was no consistency as to exactly how far those witnesses considered Badimia country extended.  The boundary identified by any one individual, if mapped, was unlikely to coincide with one produced by any other person.  Further, the variations between the boundaries given by the witnesses were not minor but, as noted by Dr Brunton, differed in the magnitude of hundreds of kilometres.  
(8)	For example, there were notable inconsistencies in the evidence given by the Aboriginal witnesses about the southern boundary of Badimia country and Lake Moore.  In 2010, Darryl Fogarty stated that, as far as he knew, the southern boundary of Badimia country was at Whitewells Station, which would roughly coincide with the claim area boundary.  However, in 2012 Mr Fogarty was insistent that all of Lake Moore was included.  He said that he had always thought that this was the case, and was not sure why some of it had been left out of the claim area.  It is not apparent why Mr Fogarty changed his mind in the two years between giving evidence.  The difference between the two accounts is at least 70 kilometres.
(9)	In 2010, Leah Bell, saying that she learnt about country from her elders, including her grandparents, uncles, aunties and mother, stated only that “Badimia country goes south to around Mount Gibson out to Perenjori”, thus excluding a substantial part of Lake Moore.  Her 2010 evidence was, therefore, consistent with Darryl Fogarty’s 2010 evidence.
(10)	However, in 2012 her son, Ashley Bell, said that he had learnt about country from his old uncles, Steve, Bill and Jim Clinch, and that he had always been taught that the whole of Lake Moore was part of traditional Badimia country.  Mr Bell gave evidence that the boundary of Badimia country extended as far south as Wilgie Hill, just out of Pithara (south of Dalwallinu).  Mr Bell seemed surprised that half of Lake Moore was excluded from the claim area, but even so, he reiterated that the Clinch uncles had told him all of Lake Moore was included.  Earlier, however, Mr Bell had said that “boundaries were never really spoken about in great detail when we were young”.  
(11)	Alan Walsh and Joan Walsh both said that PG (Mr P George) had told them that Dalwallinu was part of Badimia country, and by implication this would probably include at least the greater part, if not all, of Lake Moore.  Percy Lawson said that his father had told him that the boundary went “down to Dalwallinu, round the end of Lake Moore, then back out … before Cue”.  Other witnesses who said that Badimia country included all of Lake Moore were Beverly Slater and Coral Brockman.
(12)	On the other hand, Frank Walsh Jnr said that the southern border of Badimia country was Whitewells Station, and explained that this was where the country changed, and “the mulga country start kicking in”.  Similarly, Frank Walsh Snr also stated that “past Whitewells south is the Noongars”.  Roderick Hedlam agreed that that the southern boundary was around Whitewells Station and Mount Gibson.  The Wajarri witness, Lance Mongoo, said that he “was told by old Badimia people like old [Mr P George] that the Badimia country went south to Perenjori and Whitewells Stations”.  
(13)	There were also inconsistencies regarding the eastern extent of Badimia country.  A number of witnesses did not extend the eastern boundary of Badimia country beyond the current application but many other witnesses did so to considerably varying degrees. 
(14)	Both Roderick Hedlam and Gloria Fogarty stated that Badimia country went east to Leonora.  Similarly, in 1998 interviews, Mr P George, RL (Mr R Little) and Muriel Little also stated that Badimia country went as far east as Doyles Well near Leonora but that the Badimia had been pushed westward by the Wanmala.  HL (Ms H Little), in a 2007 interview, also stated that “if you go over to the Leonora side … they say Badimia started at Doyles Well … I know some people talk about [it extending] almost to Menzies or Diemals or somewhere around that way”.  Ms H Little’s uncle, AL (Mr A Little), told Mr Chambers in another 2007 interview that “the Badimia had the biggest boundary of all the tribes in the region – in the whole State more or less” and that it started in Doyles Well in the east.  In 2006, Mr Tony Green, a Wanmala man fostered by named apical ancestor Eva Renie, stated that “the Badimia belong to Leonora to Lawlers and Sandstone and Youanmi.  But they not belong Magnet … But the kids [the younger generation] don’t know w…  Them Kuwara [Ko:ara] shift them Badimia to that way [Mt Magnet]” (as recorded by Mr Chambers). 
(15)	However, Olive Gibson and her brother, Des Thompson, both stated that Badimia country extended east only to Agnew and Lake Barlee (located approximately 125 kilometres west of Leonora).  In contrast, a number of other witnesses gave evidence that Badimia country extended only as far east as Sandstone, approximately 45 kilometres east of the application boundary and 200 kilometres west of Leonora.  For example, Ron Bandy stated that the eastern boundary of Badimia country was 30 or 40 kilometres east past Windsor Station (just west of Sandstone).  Frank Walsh Jnr stated that the eastern boundary was “nearly to Sandstone”, while Darryl Fogarty said it was “just this side of Sandstone”.  Similarly, Joan Walsh gave evidence that Badimia country extended “east out to Sandstone”, while Beverly Slater said it was “up to almost Sandstone”. 
(16)	Similar discrepancies arise in respect of the western boundary of Badimia country.  For example, the boundary was extended the furthest west by Roderick Hedlam who stated that it went west to near Kalbarri, on the coast at the mouth of the Murchison River.  While not giving such an expansive description of Badimia country as Mr Hedlam, Olive Gibson said that Carnamah, Mingenew and Mullewa were all in Badimia country.  Similarly, Darryl Fogarty gave evidence that Badimia country extended to Mingenew in the west.  Leah Bell placed the boundary slightly further east, stating that Badimia country included Perenjori and Morawa but did not go as far as Mullewa.  Percy Lawson also stated that Badimia country included Three Springs and Carnamah, extending to a point between Mingenew and Mullewa.  However Clarrie Cameron, a Nhanhagardi man, stated that Perenjori was his country and that Badimia country was to the east. Mr Cameron stated that “our country [Nhanhagardi/Wilinyu country] has Three Springs, Morawa and Coorow”. 
(17)	In contrast, a number of witnesses stated that Badimia country went only as far west as Yalgoo (or thereabouts).  For example, Ollie George said that “Badimia country ends at Edah station now, but it should be out to Yalgoo when you are heading west to Wajarri country”.  Ron Bandy also stated that the old people told him that Badimia country goes west to Yalgoo about 15 kilometres towards the Rabbit Proof Fence.  Beverly Slater said that “we were always told by the elders it was… west around Yalgoo”.  Coral Brockman stated that the boundary went “further out Yalgoo way”, while Gloria Fogarty stated that Badimia country went to Yalgoo in the west.  Alan Walsh said that Mr P George told him that Yalgoo was in Badimia country and that the western boundary was between Perenjori and Yalgoo.  Similarly, Joan Walsh stated that the western boundary was “about 20 kilometres this side of Perenjori.” 
(18)	However, a number of other witnesses gave evidence that Badimia country did not extend as far as Yalgoo.  When interviewed in 1998, Ms C George said that Yalgoo was Wajarri country, and that she had been told this by the old people.  Frank Walsh Jnr told Mr Chambers in 2007 that his grandfather and father told him that the western boundary of Badimia country “goes across to the Rabbit Proof Fence around the Boat Rock area and down towards Yalgoo – this side of Yalgoo”.  However, when Mr Chambers asked his father, Frank Walsh Snr, he said that his father never spoke to him about Badimia boundaries, and it seems that he “just learned from the white fellas”.  But he did not know whether Yalgoo was in Badimia country.  However, in 2010 Mr Walsh Snr gave evidence that “Yalgoo is out of Badimia country”.  
(19)	The only current boundary about which there could be said to be any level of agreement is the northern one around Lake Austin although, even here, there was evidence from a number of witnesses who thought that it should go further north.  These include the Nhanhagardi man Clarrie Cameron, who in 2007 told Mr Chambers that Day Dawn (around 20 kilometres outside the claim area) was the boundary, which also seemed to be Mr Cameron’s evidence to the Court in 2012.  Similarly, Coral Brockman said that the Cue and the Big Bell mine were in Badimia country, while Beverly Slater also agreed that Cue was in Badimia country.  However, Wajarri man, Lance Mongoo, gave evidence that Cue and Big Bell were part of his country.  In contrast, Mr A Little told Mr Chambers in 2007 that Badimia country extended as far north as Meekatharra. 
(20)	Additionally, an examination of the reasons given by the witnesses for drawing the boundary of Badimia country in a particular place suggests that the witnesses have often come to think of certain places as Badimia because they or their parents (or another Badimia person) resided or worked there.
(21)	For example, in 2006 Roderick Hedlam told Mr Chambers that Badimia country “used to go to Wuraga, not far from that, because dad used to work all through there” (although Mr Hedlam’s father was not a Badimia man, but from the Peak Hill area north of Meekatharra), and “it goes right down to Jibberding because one of my brothers was born there see”.  Similarly, in a joint interview that Roderick Hedlam and Ted Fogarty had with Mr Chambers in 2006, when asked about the Badimia boundary Mr Fogarty said, “they reckon there is an old map with the original boundary but they only marked this one out where their grandparents have been working around on different stations”.  Mr Hedlam agreed, “yes, that’s all it is”, with Mr Fogarty adding “because that’s all they could remember”. 
(22)	In his 2012 evidence to the Court Darryl Fogarty gave a couple of explanations for thinking that Mingenew was part of Badimia country.  One was that Mr Peter Bell and his parents used to live there, and because Mr Bell had said it was Badimia and knew some of the stories from there.  When asked whether this meant that Badimia country was constituted by places where his and other Badimia families had resided and worked, Mr Fogarty said “yes, well, usually they’re on their traditional country.  If they know the language and the sites and everything like that, that’s their country.”  When asked whether Badimia boundaries changed over time depending on where people lived Mr Fogarty stated: 
Well, I guess they do. They slowly get pushed sort of out, and being farming country there’s - there’s no real evidence left down that way anymore. Whatever stuff was there it’s gone to prove that there was ever, well, Badimia people living down that way. They’re probably, yes, all gone. 

(23)	Another reason why Mr Fogarty thought Mingenew was Badimia country, was because minga means ant in the Badimia language and “there’s supposed to be a small pointy hill there [at Mingenew] with caves like a white ants’ nest”.  When asked whether any other people had the same word, Mr Fogarty said “not that I know of”.  However, as noted by Dr Brunton, minga is the word for ant in many Aboriginal languages of Western Australia, including Wajarri.  Mr Fogarty also said that his father told him that he thought that Morawa was Badimia country because marruwa is the name for the little kangaroo rat (actually rabbit‑eared bandicoot).  Again, a word similar to marruwa is used for bandicoot in other Aboriginal languages of Western Australia. 
(24)	The notion that because a Badimia person was born or resided for a long time at a particular location they would have been Badimia was also suggested by others.  Coral Brockman thought that Big Bell, which is about 30 kilometres north of the northern claim area boundary, was Badimia country because it was her birth place.  Olive Gibson believed that the places where she lived as a young woman with her mother – Carnamah, Mingenew and Mullewa – were in Badimia country because her mother “used to say that Badimia people would never go away from their country”.  When asked whether Ms Gibson’s mother had specifically stated that these towns were part of Badimia country, Ms Gibson responded “No, not exactly”.  
201		In response to the fact finding challenges presented by this evidence, the claimants rely on their primary submissions set out above and the view expressed by Mr Robinson that the boundaries of the claim area are conservatively drawn in relation to previous published and unpublished sources and evidence of the Badimia people themselves.  The claimants also say, as has been recognised in a number of earlier decisions (such as De Rose v State of South Australia [2002] FCA 1342 at [908]; Commonwealth of Australia v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 at [335]), that a degree of imprecision and difference of opinion is to be expected in relation to Aboriginal concepts of boundaries.
202		The Court’s real difficulty in this case, however, is that the degree of imprecision identified by the evidence referred to by the State goes beyond debates at the margins, about which one can expect the knowledge held by individual members of a traditional Aboriginal group to differ, depending on their status, familiarity with the area, and source of their information.  In this case, the sources of the information provided to the Court by the witnesses, in particular, do not lead the Court to feel appropriately assured that the parameters of the territory described were based on information which had been passed down through the generations to the witness.  The inconsistences reasonably identified by the State suggest that individual witnesses have been informed by a variety of different people from a variety of family perspectives.  In many cases, their own understanding was impressionistic and apparently informed by where they, or their old people, lived at particular times.  There was no real consensus about the metes and bounds of traditional Badimia country.  The boundary evidence did not appear to have the force of an accepted body of Badimia knowledge about boundaries.
203		As noted, many witnesses tended to give an account of the boundaries of Badimia country very much from their own perspective, or their family’s perspective, from where they collectively grew up and where they currently considered that their preferential right to speak for parts of Badimia country existed.
204		When one adds to that, as the Court finds below, that a number of apical ancestors cannot reliably be shown to be Badimia people by descent or persons with a traditional association with the claim area, the traditional provenance of the information possessed by a number of the witnesses must be questioned.  
205		In the result, the Court is unable confidently to infer that the knowledge of present witnesses reliably describes the boundaries of traditional Badimia country as they were at sovereignty.  This question is also related to the question of continuity, which is discussed further below.
206		In short, the difficulty the Court is faced with, is that it does not consider that the direct evidence of the claimant witnesses on the question of boundaries enables the Court to infer, on the balance of probabilities, that the Badimia boundaries at sovereignty included the whole of the claim area.  While, as noted above, it would appear that parts of the claim area match up with some of the older ethnographic data, not all of the claim area so matches.  
207		The Court considers it would be speculating if it were to find that the whole of the claim area is within traditional Badimia country.
Summary of sovereignty country finding
208		The Court is not satisfied, on the balance of probabilities, that the claimants have proved that the claim area was traditional Badimia country at sovereignty.
209		This finding, of itself, would support an order that the claim be dismissed.  However, it is appropriate to further consider each of the other key issues mentioned above.
WERE THE APICAL ANCESTORS BADIMIA PEOPLE?
210		The claimants contend they are Badimia people and are descended from Badimia ancestors who held native title in the claim area at sovereignty. 
211		To this end, the claimants identify the following apical ancestors:
·	Mary Assil and Timothy Benjamin
·	Frances (Mary) and John Bynder
·	Albert Neebrong and Dinah, Uanda and Galena (Lena) 
·	Bilygwy and Yilayajambin
·	Ninghan Billy and Ninghan Freddie
·	Polly Little
·	Lisa Martin
·	Topsy
·	Eva Renie
·	Old Julia
·	Lizzie aka Juumbi
212		The State challenges the claim that these apical ancestors were Badimia people.
213		The question is whether the claimants, on the balance of probabilities, have established the Badimia identities of these ancestors.  If they have not, the basis of the claim is seriously undermined, as explained above.
214		The claimants, by their direct evidence, were adamant that their apical ancestors were Badimia.  In this regard, they had no reason to doubt what they had always been told, heard or understood.  The question is whether, having regard to relevant competing evidence the Court is satisfied that the claimants have established their case.  
Mary Assil and Timothy Benjamin
215		As to the evidence overall, the claimants note and submit that: 
(1)	Dr Brunton and Mr Robinson were of the view that there was not enough documentary evidence to say that Mary Assil, claimed Badimia ancestor of claimant Percy Lawson, was a Badimia person.
(2)	The documentary sources show that Timothy Benjamin, also a claimed Badimia ancestor of Mr Lawson, was born in the Wheatbelt in Burracoppin, south-east of the claim area. Mr Robinson stated that being born somewhere does not necessarily bring with it a sense of cultural attachment.  Mr Robinson was of the opinion that Timothy Benjamin had made a strong statement about his connection to the Badimia claim area.  In 1940, Mr Benjamin told the Department of Aboriginal Affairs that he was a descendant of two “full bloods of Goodingnow Station” named Tom Benjamin and Mary Anne.  This suggested to Mr Robinson that Timothy Benjamin had an association with the claim area.  Mr Robinson stated in evidence that he would place more weight on that statement in contrast to documents that indicated a place where Mr Benjamin might have been born.
(3)	Timothy Benjamin’s son, Joe Benjamin, was Kingsford’s main Badimia informant in the early 1980s and was the sole informant for Dunn’s analysis of the Badimia language.  In relation to the data compiled by Kingsford and Dunn, Joe Benjamin told the researchers he was Badimia.  Tindale also recorded in 1966 that he was told that Joe Benjamin was an old “Burramia” man who would be a good informant.
(4)	Mr Robinson stated that evidence from the Aboriginal witnesses provided very strong evidence that Timothy Benjamin’s son, Joe Benjamin, was Badimia.  Mr Robinson did not believe that someone whose father’s traditional country was far away in the Wheatbelt would somehow become transformed into a Badimia person and be accepted as a senior person in Badimia society.  It should be noted that the statements made by Joe Benjamin, in which he identified as a Badimia person, were made long before the NTA commenced.
(5)	Further, when considering whether Timothy Benjamin was a Badimia man, Mr Robinson also took into account the evidence of Percy Lawson. Mr Lawson knew Joe Benjamin.  Mr Lawson is a descendant of Annie Benjamin, the daughter of Timothy Benjamin.   Mr Lawson identified Joe Benjamin’s father as being Badimia.  Clarrie Cameron, the neighbouring Nhanhagardi witness, stated that he could remember old Joe Benjamin who was a Badimia man who came from Paynes Find and Yalgoo. 
(6)	By contrast, Dr Brunton was unsure about Timothy Benjamin’s status as a Badimia person.  Dr Brunton stated that as a result of their life experiences and personal histories later in life some ancestors will be identified as being members of the group from where they reside.  This is in distinction to the area of the group they are descended from.  He said a good example was Ollie George’s and Mr P George’s fathers who had been recorded as not being Badimia.  The claimants also note that Ollie George acknowledged that his father and his father’s father were not Badimia.  Dr Brunton stated that although there was no argument as to Joe Benjamin’s assertions of being a Badimia man he would still question whether that firmly established that his forebears were Badimia.   Dr Brunton did, however, say that it was “a reasonable inference” to conclude that Joe Benjamin must have been told by one or other of his parents that they were Badimia. 
(7)	Mr Robinson stated that the question of identification is a cultural one and is a matter of reputation in a particular Aboriginal community.  Statements regarding identity are not made in isolation; they are made within a social compass.  The claimants make these statements in front of their peers, and their peers, in turn, will support the reputation that they are assigning to themselves and to their parents.  Dr Brunton stated in response to Mr Robinson that the question is “are statements made about contemporary identities really helpful, useful, accurate, in terms of helping us understand what the situation was at some time in the past, and what kind of mechanisms … are existing in Aboriginal communities such that certain kinds of information tends to be forgotten, ignored”. 
216		As to Mary Assil, the State notes and submits that:
(1)	Mary Assil aka Mary Hussy was born in the period between 1880 and 1885.  In a Tindale genealogy, most probably based on information provided by her son-in-law, Wally Walter, Mary was recorded as a “½ caste of Carnarvon, brought to New Norcia as a child”.  However, Joe Benjamin, Mary’s son, is recorded as saying that Mary was from Roebourne.  This provenance is supported by her certificate of marriage to Timothy Benjamin. 
(2)	Dr Brunton was of the view that, irrespective of whether Mary was from Roebourne or Carnarvon, “there can be little doubt that Mary Assil or her parents did not have any traditionally-based associations” with the claim area. 
(3)	In Mr Robinson’s written reports he concluded that while Mary Assil “may not have been Badimia” he was unable to “rule out the possibility”.  Mr Robinson did acknowledge, however, that “as far as the documentary sources allow us to go, there would not seem to be … a strong basis for including her as a Badimia person with an association with the claim area”.
(4)	When asked in cross examination why he would not completely rule out Mary Assil as a relevant apical ancestor, Mr Robinson stated that, notwithstanding a lack of documentary support, the fact a person was identified by the claimants as a Badimia apical ancestor should be given some weight and that the “absence of documentary material does not, of itself, in my mind, establish that that person wasn’t, by reputation, a Badimia person”. 
(5)	However, contrary to Mr Robinson’s recollection, no evidence was given by the Aboriginal witnesses that Mary Assil was, in fact, a Badimia person. Mary Assil was not mentioned by any of the Aboriginal witnesses and to the extent that her descendant, Percy Lawson, gave evidence regarding his forebears (but not Mary Assil) that evidence was particularly confused.  Mr Robinson himself concluded (dubiously, in the State’s respectful submission) that Mr Lawson’s evidence was also to the effect that Mary Assil was not a Badimia person. 
(6)	In any event, it is one thing to infer that a named apical ancestor is a Badimia person in the absence of documentary material and another to do so in the face of positive evidence to the contrary.  In the case of Mary Assil, all of the available documentary material and the Aboriginal evidence supports a finding that Mary Assil and her lineal ancestors did not have an association with the claim area at sovereignty.  Accordingly, it is not correct to suggest, as the claimants do, that there was enough documentary evidence to say that Mary Assil was a Badimia person.  Rather, the evidence positively demonstrates she was not.
217		As to Timothy Benjamin, the State notes and submits that:
(1)	Timothy Benjamin was born circa 1879.  Joe Benjamin, Timothy’s son, reported to Kingsford that his father and grandfather were both born near Burracoppin (which is in the Wheatbelt, nearly 200 kilometres south-east from the closest point of the claim area). 
(2)	Mr Robinson was of the view that while no “tribal” affiliation has been located for Timothy, the fact that his son, Joe Benjamin, identified himself as Badimia, together with Timothy’s statement in a 1940 interview that his parents were “of Goodingnow”, made it likely that one or both of Timothy’s parents were Badimia persons.  
(3)	Mr Robinson considered that a reference to Timothy’s parents being “of Goodingnow” had to be given the same weight as Joe Benjamin’s statement that Timothy and his father were both born in Burracoppin. 
(4)	However, as pointed out by Dr Brunton, “of Goodingnow” does not necessarily mean birth at Goodingnow. It may simply mean that Timothy Benjamin’s parents worked or resided there after it became a pastoral station.  In this regard, the Department of Aboriginal Affairs personal history card of Roy Benjamin, Timothy’s son, identifies his father as “of Karara Station”.  Karara is located west of Rothsay, outside the claim area. Further, Timothy’s personal file, as well as identifying his parents as being “of Goodingnow”, also identifies him as being both “of Karara” and “of Perenjori” (which is also outside of the claim area).
(5)	Mr Robinson ultimately agreed that simply because a person was recorded at a particular point in time:
[as] being somewhere or being of a certain place doesn’t of itself mean that there’s a traditional cultural affiliation with such a place … even at an early stage of settlement, of contact, there was a certain degree of mobility with Aboriginal people, particularly in the pastoral industry, where people would be recruited as labour on pastoral stations and may end up being recruited at one station and end up somewhere else … and the other thing that - that  went to mobility was, of course, the missions …  So it’s uncertain, from the record, whether someone described as being somewhere, or being related to somewhere is necessarily - has necessarily got a cultural connection to that place.
 
(6)	Similarly, even at the beginning of the 20th century Bates realised that the mere presence of individuals at any given camp did not mean that they “belonged to the district where they were encamped”. 
(7)	Despite his opinion that the fact a person was recorded at a particular place did not mean they were traditionally associated with that place, Mr Robinson gave particular weight to the statement that Timothy’s parents were “of Goodingnow” because he was:
looking for evidence that, at some stage, whether or not they moved around and were camping somewhere else or were born somewhere else, that, at some stage, there’s an association between them and a place or places in the claim area, setting aside, as I say, whether or not there’s other evidence to identify them as Badimia people.

(8)	This and other evidence makes clear that Mr Robinson was seeking merely to identify any “association” with a location in the claim area at some point in the relevant ancestor’s life, rather than a traditional occupation of that area or a descent connection with it.
(9)	Obviously, however, the question is not whether, at some point, an apical ancestor has lived, worked or resided in the claim area but rather whether, in accordance with traditional law and custom, they had rights in land in the claim area at sovereignty (which is an entirely separate and different enquiry).  Mr Robinson has, with respect, applied the wrong test. Again, this casts serious doubt upon the weight which may be given to Mr Robinson’s evidence on this topic.
(10)	In the State’s submission, more weight should be given to the evidence which suggests that Timothy Benjamin and his father were born outside the claim area. Dr Brunton observed that although there may have been ritual links between Warrdagga (located on Ninghan Station within the claim area) and Burracoppin, the fact that the respective mothers of both Timothy and his father were at Burracoppin for the birth of their sons seemed “a remarkable coincidence” and suggested that their country was “fairly close by”.  Further, given how early in the period of European settlement the births of Timothy and his father in Burracoppin occurred, Dr Brunton concluded that it was likely that the associations of Timothy and Joe Benjamin with the southern part of the claim area were established only after settlement.  That is why Timothy was as much “of Goodingnow” as he was “of Karara” and “of Perenjori”.
(11)	The State acknowledges that Joe Benjamin did identify as a Badimia person.  Dr Brunton agreed this was a factor which has to be taken into account when inferring whether Joe’s parents were Badimia persons.  However, that identification is not, in any event, conclusive of whether Timothy Benjamin or Mary Assil had rights and interests in the claim area at sovereignty.
(12)	The Aboriginal witnesses did not give any substantive evidence regarding Timothy Benjamin and his status as an apical ancestor.  Although a few witnesses made limited reference to having heard of Joe Benjamin (including their belief that he was a Badimia person), no evidence was given by those witnesses regarding the identity or origin of Joe’s parents.  Percy Lawson gave some limited evidence regarding these apical ancestors, however, in the State’s respectful submission, Mr Lawson’s knowledge was fragmentary, confused and limited. 
(13)	Mr Lawson was the only witness said to be a descendant of Timothy Benjamin.  Prior to giving evidence Mr Lawson amended his witness statement to remove any reference to his mother’s father’s mother, Annie Benjamin (the daughter of Mary Assil and Timothy Benjamin), being a Badimia person.  Mr Lawson also confirmed in examination‑in‑chief that Annie Benjamin was not a Badimia person and although he did not know what group she belonged to he believed Annie came from the Roebourne area.  Prima facie this also establishes that Annie’s parents were not from the claim area.  However, and rather confusingly, Mr Lawson also gave evidence that Joe Benjamin’s father (who was also Annie’s father) was a Badimia person.  Further complicating matters Mr Lawson appeared to be of the view that Annie Benjamin (Joe’s sister) was, in fact, Joe’s mother.  Mr Lawson also seemed to think that Joe Benjamin’s father was “one of old Ninghan Billy’s brothers” and not Timothy Benjamin.  Mr Lawson did not refer to either Timothy Benjamin or Mary Assil by name.
(14)	In the State’s submission, Mr Lawson’s evidence is a further example of why the Court may not assume that a named apical ancestor is the descendant of persons in occupation of the claim area at sovereignty simply because they are identified in the claimants’ application, the claimants’ genealogies or by a current claimant as a Badimia person, particularly in circumstances where it is apparent that their descendants know little or nothing about them and where the evidence given by the witness must clearly be incorrect in a number of respects. 
218		In reply, the claimants submit that:
(1)	Although the State acknowledges that Joe Benjamin did identify as a Badimia person and that Dr Brunton agreed that this was a factor which has to be taken into account when inferring whether Joe Benjamin’s parents were Badimia, the State nonetheless submits that that identification is not “conclusive” of whether Timothy Benjamin or Mary Assil had rights and interests in the claim area.  The claimants submit that the evidence in relation to Timothy Benjamin and his descendants being Badimia is very strong.  In this regard, the claimants refer to the evidence of Percy Lawson as well as Mr Robinson’s first report and the inferences that can be drawn from Kingsford’s collected data as relied on by Mr Robinson.
219		The Court, in light of the expressions of opinion of both Mr Robinson and Dr Brunton identified above, and having regard to the data upon which they rely in so doing, is unable to find that Mary Assil was a Badimia person or a person traditionally associated with the claim area.  
220		The position in relation to Timothy Benjamin is, however, more complicated.  There is no doubt that Timothy was associated with the pastoral station at Goodingnow.  However, as the State notes, he was also apparently associated with the station at Karara and the town of Perenjori.  To complicate matters further there is a European record stating that Timothy Benjamin was born at Burracoppin, a town some 200 kilometres distant from the closest point of the claim area.  
221		The associations with stations and the town of Perenjori may possibly be nothing more than that – associations.  European records referred to appear simply to place Timothy Benjamin at a particular place in time and space.  For example, plainly he was at Karara at one point and Perenjori at another.
222		As to Goodingnow Station, the information concerning Timothy Benjamin is a little more detailed.
223		As Mr Robinson explained, in 1940 Timothy Benjamin told the Department of Aboriginal Affairs that he was a descendant of two “full bloods of Goodingnow Station” named Tom Benjamin and Mary Anne.  This does suggest, as Mr Robinson stated, that Timothy Benjamin considered he had more than a passing association with the claim area; that those ancestors perhaps had an ancestral connection to that station.  It may be accepted, however, that that statement on its own does not necessarily involve an assertion that either Tom Benjamin or Mary Anne had a traditional association with Goodingnow Station or the nearby area.  
224		Joe Benjamin, Timothy Benjamin’s son is, however, also important to a consideration of his father’s links to the area.  In 1966 Tindale, when he was conducting research, was told that Joe Benjamin was an old “Burramia” man who would be a good informant.  As it transpires, some years later, in the early 1980s, Joe Benjamin was also Kingsford’s named Badimia informant and he was the sole informant for Dunn’s analysis of the Badimia language.  All of this is important because Joe Benjamin plainly was recommended and seen in the wider community, including the Aboriginal community, as a person who could speak with some knowledge and authority about Badimia culture, about country and language.  And he plainly identified as a Badimia person.  
225		It may reasonably be concluded therefore that Joe Benjamin in a broader Aboriginal community context was accepted as a Badimia person possessed of relevant cultural knowledge.
226		As the claimants point out, Joe Benjamin’s statements that he was Badimia were made long before the NTA commenced, when identity and country became of paramount importance for native title purposes.
227		All this information, in my view, tends to provide a sound basis upon which an inference may reasonably be drawn that Joe Benjamin’s ancestor, Timothy Benjamin, had at least a traditional association with Badimia country, and probably was Badimia.  Timothy Benjamin’s ancestors may also be inferred to be Badimia.  
228		Against the drawing of the inference that Joe Benjamin and his ancestors were Badimia people, is the European record stating that Timothy Benjamin was born at Burracoppin.
229		Unless one is to accord the Burracoppin birth data some special status to the effect that it is strong evidence that Timothy Benjamin’s only ancestral links to country were in the Burracoppin area, and not with Badimia country, then the inference should be drawn that Timothy Benjamin was a Badimia man, as his son said he was.
230		I consider that, largely for the reasons Mr Robinson gave, the European record of Timothy Benjamin’s birth at Burracoppin should not be privileged in the face of the other data to which I have referred.  That is to say, it should not be assumed to indicate that Timothy Benjamin’s traditional country was in the Burracoppin area, or that that was the only area in which he had such links, and that he therefore had no traditional links in the claim area.  
231		In these particular circumstances, the reputation of Joe Benjamin as a Badimia man in the general community (including the recommendation first made back in 1966 to Tindale that he should consult him as a Badimia man), the statements made by Joe Benjamin himself and the fact that he obviously spoke the Badimia language and was knowledgeable about things Badimia, all provide a proper basis to conclude, on the balance of probabilities, that Joe Benjamin and his father had relevant ancestral, traditional interests in the vicinity of the claim area.  The information recorded by Kingsford concerning Joe Benjamin’s traditional responsibilities for the Warrdagga site (as a member of what Kingsford has called the “cult group” responsible for carrying out ritual obligations) also tends to confirm a connection with that area based on traditional, not historic association.
232		This is not a case where just one individual within a broader community makes what amounts to a bare assertion about a distant ancestor to the effect they belonged to a particular “tribal” group.  Here the context in which Joe Benjamin made his statement is such that appropriate weight should be accorded to it.
233		In dealing with language group identification, statements made by persons within a community context may well help to settle questions of identity, where the mists of time may otherwise tend to complicate the issue and where European records may distract attention from what are, in the circumstances, more reliable or trustworthy guides to resolving the identity issue.
234		In these circumstances, the Court considers, on the balance of probabilities, that Timothy Benjamin was a Badimia person or a person with a traditional association with, or in the vicinity of, the claim area.  
235		In so finding, the Court accepts that Percy Lawson, as the State observed, provided some confusing evidence about his ancestry.  This does not, however, detract from the Court’s conclusions about Timothy Benjamin and his Badimia connections.
236		In summary, the Court finds Mary Assil was not a Badimia person, but that Timothy Benjamin was Badimia.
Frances (Mary) and John Bynder
237		The claimants note that:
(1)	Dr Choo and Mr Robinson both uncovered research that located members of the Bynder family in the claim area.  When archaeologist Richard Gould was carrying out his research in relation to the significant site of Kunturu on Lake Moore in the 1960s he spoke with informant Billy Barlow.  Mr Barlow told Gould that a “native” from Kunturu named “Paylta” provided him with information about the site.  Mr Robinson suggested that “Paylta’ was Pilot Bynder, whose father was John Bynder, one of the Badimia apical ancestors.  Further, a “Tommy Byander” was recorded at Ninghan Station in 1886 and Mr Robinson believed this was John Bynder.  Later, in 1900, at Goodingnow Station, a man who would have been of a similar age to Tommy Byander, and was named “Bynder”, was in receipt of rations. 
(2)	Dr Brunton’s opinion was that John Bynder was unlikely to have had “traditionally-based proprietary rights” in the Badimia claim area, and that his association with the area developed after European settlement.  The situation with his wife Frances Bynder is more difficult to decide and depends on the location of “Bulgarnerra”, the place of her birth noted on her death certificate.  According to Dr Brunton “Bulgarnerra” could either be near Watheroo, outside the claim area, or at a location identified by Ollie George in his evidence, Bulgomarra Spring, in the claim area on the Burnabinmah Nalbarra Road near Paynes Find. 
(3)	Mr Robinson preferred the location within the claim area given the identification of the descendants of the Bynders as Badimia people.  Mr Robinson gave evidence that he knew descendants of the Bynders, such as Ken Bynder, who was interviewed by Dr Glaskin as part of preparation for the proceeding.  Mr Robinson knew that, despite Mr Bynder living in Perth, he had been very closely involved with the native title claim group and attends meetings regularly.   After the claimants’ case had been formally closed, a certificate from Mr Bynder’s doctor, as to Mr Bynder’s incapacity to give evidence, was filed by consent. 
238		As to John Bynder, the State notes:
(1)	In his first report Mr Robinson stated that, in his opinion, the records suggest that John Bynder was “associated with” the claim area and, while it was not recorded if John Bynder identified as Badimia, Mr Robinson believed it could be assumed from his association with the claim area.  That reasoning, with respect, is unhelpfully circular. Mr Robinson conceded, in any event, that “there’s not a lot of strong documentary support for that [proposition]”. 
(2)	In the State’s submission, the available evidence does not support John Bynder having any traditional association with the claim area. The only evidence Mr Robinson provided for an association with the claim area was the arrest record of a 30 year old man named “Tommy Byander” at Ninghan Station in 1886 and a record in 1912 (26 years later) that a 67 year old person named “Bynder” was receiving rations on Goodingnow Station.  
(3)	As noted by Dr Brunton, and acknowledged by Mr Robinson, there is nothing in the arrest records for Tommy Byander to suggest that this man was also known as John Bynder, beyond a mere similarity of surname.  Further, the Police Gazette of Western Australia for 1886 records warrants being issued for “Tommy Byanda” from both the Victoria Plains and Dongara districts, suggesting that Tommy Byander aka Byanda had a certain degree of mobility.  Accordingly, the fact that Tommy Byander was arrested upon Ninghan Station does not demonstrate a traditional association with the claim area.  It is equally possible on the basis of the evidence relied upon by Mr Robinson that Tommy Byander had a traditional association with the Dongara or the Victoria Plains districts instead.
(4)	Similarly, there is nothing in the Goodingnow Station ration record itself to suggest that the “Bynder” referred to was John Bynder.  As pointed out by Dr Brunton, an earlier handwritten letter from Gus Clinch of Goodingnow Station to the Protector of Aborigines in Perth dated 20 December 1905 identifies “Binder alias Billy” as one of a number of people receiving relief at the station, suggesting that the Bynder of the 1912 ration record may have been a Billy Binder and not the apical John Bynder.  Additionally, Dr Choo was of the opinion that the persons listed on the 1912 Goodingnow Station ration record, including Binder, had come from, and later returned to, Southern Cross. 
(5)	Further, in the claimants’ genealogies, John Bynder is recorded as having died on 20 May 1923 at Moore River Native Settlement.  The death certificate for a “Jack Binder” who died on the same day and place (who can therefore, in Dr Brunton’s opinion, “be said with virtual certainty” to be the John Bynder referred to in the claimants’ genealogies), records that he was born in Goomalling (located in the Wheatbelt a significant distance from the claim area: much nearer, in fact, to the Victoria Plains district) and was 80 years old when he died (giving a birth date of approximately 1843).  In the State’s submission, given the earliness of John Bynder’s birth in the settlement period, this would suggest that he did not have any traditional association with the claim area.  
(6)	No witness who was descended from John Bynder gave evidence and he was not referred to by any other Aboriginal witnesses.
239		As to Frances Bynder, the State notes:
(1)	Frances Bynder’s death certificate records that she was born in 1840 at “Bulgarnerra” or possibly “Bulgarmerra” (a slight smudging of the certificate making the lettering difficult to identify). She died at “Nelban Camp near New Norcia” in 1915. 
(2)	The location of “Bulgarnerra” is unclear. A site named Bulgomarra Spring on Burnabinmah Station is referred to by Ollie George.  However, there is also a Bulgamurra Homestead and Bulgamurra Well west of Watheroo, near the border of territories depicted as Amangu and Juet by Tindale.  
(3)	Dr Brunton was of the opinion that, while he could not rule out Frances’ place of birth being the location referred to by Ollie George, he thought it more probable that of the two suggested locations her birthplace was Bulgamurra Homestead or Well west of Watheroo.  Dr Brunton held this opinion for two reasons.  First, he expected that a death certificate prepared by a government official would be more likely to refer to a place that was identifiable by Europeans, rather than an obscure Aboriginal site hundreds of kilometres from Victoria Plains, where the death certificate was registered.  For example, the death certificate identified “Nelban Camp”, the place where Frances died, by relating it to an official location, New Norcia.  Second, John and Frances Bynder are also listed as apical ancestors in the Amangu People native title determination application (WAD 6002 of 2004).  Although Bulgamurra Homestead does not fall within the Amangu claim either, it is much nearer to that area (around 75 kilometres from its southern boundary) than it is to the claim area.
(4)	In contrast, Mr Robinson stated that he was “inclined” to regard the location of “Bulgarnerra” or “Bulgarmerra” as being the site referred to by Ollie George.  While Mr Robinson was unable to rule out the location near Watheroo, he was of the opinion that: 
given the identification of the descendants of the Bynders as Badimia people, if you have a plausible explanation of what that place might be, and it’s within the Badimia traditional territory, I would be inclined to lean towards that, rather than some other remote place.

(5)	However, contrary to Mr Robinson’s view, there is no evidence before the Court that any of the descendants of Frances Bynder identify her as a Badimia person.  She was not referred to by any of the Aboriginal witnesses and no witness who was said to be descended from Frances gave evidence.  The evidence does not rise above Mr Robinson’s assertion that her descendent Ken Bynder has been “very closely involved with the native title claim group” and Dr Brunton’s acceptance that Ken Bynder appears to have had “an interest in traditional matters that pre-dated the native title era”. 
(6)	Mr Bynder’s current involvement with the native title application says nothing about whether Frances Bynder had a traditional association with the claim area, whether she was a Badimia person nor, at the very least, whether she is viewed by the current claimants as a Badimia person.  Nor is it an answer, as the claimants appear to suggest, that Mr Bynder was unable to give evidence due to illness. 
(7)	The State accepts that it is a significant evidentiary task for the claimants to lead evidence as to the identity of the members of the native title claim group and to demonstrate a substantial degree of genealogical connection between those persons and the persons in occupation of the claim area at sovereignty.  However that is a consequence of the claimants’ claim and practical difficulties cannot change the legal requirements.  The claimants should have called other members of the Bynder family to give evidence if they wished to demonstrate that Frances Bynder’s descendants viewed her as a Badimia person.  Failure to do so raises the inference that no descendent of Frances Binder identifies her as a Badimia person (or potentially knows anything about her).
(8)	As it stands the only evidence that Frances Bynder is identified by current claimants as a Badimia person is her inclusion as an apical ancestor in the proceeding.  Leaving aside the fact that the Court cannot, in the absence of evidence, assume that a named apical ancestor was Badimia or held rights and interests in the claim at sovereignty merely because they are included in the proceeding, given that John and Frances Bynder are also included as apical ancestors for the Amangu claim, this suggests in the same way that other Aboriginal people view them as Amangu and not Badimia persons.
(9)	A traditional association between Frances Bynder and the claim area has not been established.  There is simply no evidence at all to support it.
(10)	In the circumstances, if the Court considers it necessary to make any positive findings about Frances Bynder’s origins, the State submits that Dr Brunton’s reasons for preferring Bulgamurra Homestead or Well west of Watheroo as Frances’ place of birth are more persuasive and should be accepted by the Court.  A traditional association with that area is on balance more likely.
240		Generally, for the reasons advanced in the State’s submissions, the Court is unable to determine, on the balance of probabilities, that John Bynder aka Binder was a Badimia person.  
241		While, as Mr Robinson suggested, there may be some basis for thinking, at a more speculative level, that John Bynder had some association with the Badimia people, that of itself is too uncertain a premise upon which to make a finding that he himself was a Badimia person or had traditional interests in the claim area.
242		Similarly, and generally for the reasons submitted on behalf of the State and set out above, it is difficult for the Court to conclude, on the balance of probabilities, that Frances (Mary) Bynder was a Badimia person or had a traditional association with the claim area.
243		The Court therefore is unable to find that either John Bynder or Frances (Mary) Bynder were Badimia persons.
Albert Neebrong and Dinah, and Uanda and Galena (Lena)
244		Leah Bell and members of her family gave strong evidence they were descended from Dinah and her daughter, Uanda, both Badimia women.  The claimants submit this evidence should be accepted.  
245		The claimants note that:
(1)	In Mr Robinson’s first and Mr Robinson’s supplementary reports he provided the opinion that apical ancestors Albert Neebrong and Dinah, Uanda and Galena (Lena) were Badimia. Mr Robinson stated that the documentary evidence regarding Albert Neebrong is not strong.  Mr Robinson pointed, however, to the reputation evidence of the Aboriginal people who have spoken to researchers and given evidence themselves about Albert Neebrong being a Badimia person with Badimia affiliations. 
(2)	Albert Neebrong lived on Goodingnow Station with the Clinch family and is believed to be the father of Uanda.  Dr Brunton agreed that Albert Neebrong’s wife Dinah was the mother of Galena and Uanda.  Dr Choo, in both her first report and her further report, discussed the history of the extended Clinch family and Dinah’s relationship as the grandmother of the children of Galena and Uanda.  Those claimants who gave evidence and who are descended from Uanda and Galena emphatically state that they are Badimia. 
246		As to Dinah (and Galena and Uanda), the State notes:
(1)	Both Mr Robinson and Dr Brunton agreed that Dinah was the mother of both Uanda and Galena, the co-wives of Gus Clinch (a non-Aboriginal man and owner of Goodingnow Station).  
(2)	Accordingly, despite the fact that Galena is listed as a separate apical ancestor, the appropriate apical ancestor is, in the State’s submission, Dinah.  Mr Robinson confirmed that Dinah, and not Uanda and Galena, was the relevant apical ancestor.  Mr Robinson stated that his first report and the claimants’ genealogies treated Galena as a separate apical ancestor only in order to reflect the claim being made in the proceeding, not because it correctly represented the relationship between Dinah, Uanda and Galena.  In this respect Mr Robinson noted that, in terms of “the actual genealogical lines of connection”, the claimants’ genealogies should not necessarily be taken as corresponding with his expert opinions. 
(3)	In his first report, Mr Robinson was of the opinion that while there was no documentary evidence to support Dinah being Badimia, the claimants identified Dinah as a Badimia person which, along with her long residence in the claim area, made it “reasonable to assume” that Dinah was a Badimia person born around the time of sovereignty.  
(4)	However, in the State’s submission, none of the evidence given by the Aboriginal witnesses established that they know anything about Dinah or her origins.  For example, Leah Bell did not mention Dinah and did not know where her daughter Uanda was from.  Ashley Bell did not mention Dinah, was not sure whether Galena and Uanda were sisters and did not know where Uanda was born or originally grew up.  Both Darryl Fogarty and Beverly Slater did not know who Galena’s parents were.  Similarly Coral Brockman did not know who Uanda’s parents were. 
(5)	Mr Robinson ultimately agreed that there was no evidence from the Aboriginal witnesses regarding Dinah’s position as an apical ancestor.  Rather, it appears that the evidence relied upon by Mr Robinson to support Dinah’s inclusion as an apical ancestor was that “the Badimia people have asserted an association [with Dinah] through her inclusion on the list of apicals”.  Mr Robinson stated that he assumed that when the original genealogies were collected by researchers for the claim “somebody told them about Dinah … and Neebrong, and that is the reason they appear [as apicals]”. 
(6)	In the State’s submission, this is a wholly insufficient basis for concluding that Dinah had rights and interests in the claim area at sovereignty and is a Badimia apical ancestor.  The purpose of a native title determination application is to state the determination sought and, in this respect, it is akin to the Court’s ordinary form of originating application.  Accordingly, an assertion of fact by claimants in their application for a determination of native title is not evidence of that fact.  Rather, claimants are required to furnish evidence proving all matters needed to make out their claim in any proceeding.  Again, Mr Robinson’s opinion reflects an unsatisfactory approach to this topic.
(7)	There is no evidence before the Court at all that Dinah had a traditional association with the claim area.
(8)	The information regarding Dinah’s daughters, Uanda and Galena, is similarly limited. 
(9)	The claimants’ genealogies record that Uanda was born circa 1882.  However, no supporting source is cited and it is unclear what information (if any) the claimants rely upon for this proposition.  Accordingly, in the State’s submission, this date of birth can be given no weight.  The claimants’ genealogies also record that Uanda “came from the southern part of the claim area” but otherwise do not provide a place of birth for her.  The source for this information is a selective reference to the evidence of Leah Bell which, as discussed below, is not an accurate representation of Ms Bell’s evidence and should, in those circumstances, be given no weight.
(10)	The claimants’ genealogies assert that Galena was born circa 1891 at Kadji Kadji Station (located approximately 80 kilometres west of the western boundary of the claim area).  As noted by Dr Brunton, if correct, this would “raise legitimate doubts” about whether Dinah, Uanda and Galena had an association with the claim area which preceded Uanda’s and Galena’s relationships with Gus Clinch.  
(11)	Mr Robinson agreed that while Uanda and Galena had been “involved with” the claim area for some time (presumably because of their relationship with Gus Clinch and subsequent residence on Goodingnow Station with him) “The question of what their actual origin might’ve been is … one that [he was] not actually sure about”.  Mr Robinson acknowledged that “There’s some possibility, I think, that they came from the west of Badimia country and moved into that Goodingnow area some time later”.  Mr Robinson, however, suggested that Kadji Kadji was “nevertheless in or near the broader stretch of country said to be the traditional land of the Badimia”.  
(12)	Ultimately, Mr Robinson conceded that he had difficulty in expressing any firm opinion about where Uanda and Galena were from. 
(13)	In the State’s submission the evidence of the Aboriginal witnesses who were descended from Uanda and Galena as to their origin was equally limited and, in many respects, was also contradictory. 
(14)	Leah Bell gave evidence that Uanda was a Badimia person who came from the southern part of the claim area.  Ms Bell believed that Uanda was Badimia because she believed she was born in Badimia country at Paynes Find and had lived on Goodingnow Station all of her life (and that it was her country).  However, in 2001, Ms Bell was interviewed by Dr Fleet who was compiling a connection report for the Badimia claim.  Field notes from that interview record that Ms Bell told Dr Fleet that Uanda was “born at Cadjee St? or from Kalgoorlie?” which was followed by a note “Cecil Fogarty may know” suggesting that, in 2001, Ms Bell did not know Uanda’s origins or was of the opinion that Uanda was not from the claim area.  Ms Bell did not know who Uanda’s parents were. 
(15)	Ashley Bell gave evidence that Uanda was a Badimia person but did not know where Uanda was born or where she came from.  Mr Bell had not spoken to his mother, Leah Bell, about where Uanda originated.  Mr Bell believed Goodingnow Station was her country because she lived there.   Mr Bell did not know whether Uanda and Galena were sisters (but knew that they were mentioned together a lot).  
(16)	In 2010, Darryl Fogarty stated that he had been told that Galena was a Badimia person but did not know where she was from or who her parents were.   In 2012, Mr Fogarty was of the view that Uanda was probably Badimia because he could not “see [Gus] Clinch, a white fella, coming into Badimia country with a strange Aboriginal woman from another tribe”.  However, in contrast to his 2010 evidence, Mr Fogarty acknowledged in his 2012 evidence that he had been told by his father that Uanda and Galena were from Kadji Kadji Station, although Mr Fogarty believed that Kadji Kadji was in Badimia country. 
(17)	Coral Brockman gave evidence that Uanda was a Badimia person who lived at Goodingnow Station and had “links” with the Paynes Find area.  However Ms Brockman did not know who Uanda’s parents were and did not give any evidence about Uanda’s origins.  Beverly Slater stated she believed Galena was a Badimia person because she had been told that and because Galena’s children were born in the area but she knew nothing about where Galena’s parents had come from.  When recalled to give evidence Ms Slater stated that she had read in a book that Galena had come from Kadji Kadji and admitted that most of the things she knew about Galena she had found out recently after conducting some research. 
(18)	In the State’s submission, while the witnesses identified Uanda and Galena as Badimia persons, given their general lack of knowledge about Uanda and Galena and their origins and the fact that contemporary Badimia beliefs about the identity of forebears are not necessarily accurate, it cannot be assumed that Uanda, Galena or Dinah were Badimia persons or had any traditional associations with the claim area at sovereignty. 
(19)	This is particularly the case in circumstances where the limited available evidence suggests that Uanda and Galena came from Kadji Kadji and their association with Goodingnow Station was, therefore, based upon their relationship with Gus Clinch and was not based upon traditional law and custom.  Mr Robinson stated that even early in the settlement period there was a high degree of mobility amongst Aboriginal people, particularly in the pastoral industry, so that a person’s residence on a station does not, of itself, mean that the person or their ancestors had traditional rights and interests in that place at sovereignty.  
(20)	A traditional association between Dinah (and therefore Uanda and Galena) and the claim area has not been established.  
247		In reply the claimants observe:
(1)	The State submits that none of the evidence given by the Aboriginal witnesses established that they knew anything about Dinah or her origins.  The State then gives the example of Leah Bell stating that she did not mention Dinah and did not know where her daughter, Uanda, was from.  During cross-examination, Ms Bell was asked where Uanda was born.  Ms Bell said that Uanda was born around Paynes Find.  Ms Bell was also asked why she says that Uanda was Badimia.  Her answer was, “well because what I’ve been told is that she was born in Badimia country”. 
(2)	The State then submits that there is no evidence before the Court at all that Dinah had traditional associations with the claim area.  The claimants do not accept the correctness of that submission.  The State’s submission is inconsistent with the submission that “Leah Bell gave evidence that Uanda was a Badimia person who came from the southern part of the claim area”.  Bearing in mind that Uanda’s father was a white man and bearing in mind the overwhelming evidence that people acquire a Badimia identity through descent from a Badimia ancestor, it is reasonable to infer that Dinah was Badimia.
248		As to Albert Neebrong, the State notes:
(1)	In 2007, Mr Robinson, in a connection report co-authored with Mr Chambers, was of the opinion that Albert Neebrong was not traditionally associated with the claim area.  The report concluded that Albert was “a man of mixed descent from the Victoria Plains district”, who lived with Dinah in her later years, and who was the social, not biological, father of Dinah’s daughter, Uanda. 
(2)	However, in his first report in this proceeding, Mr Robinson made no mention of Albert Neebrong’s Victoria Plains origin, and said that while Albert may have been Dinah’s partner, “it is possible that he was not the biological father of Uanda”.  Mr Robinson noted that the Clinch and Green families regard Albert Neebrong and Dinah as their apical ancestors. 
(3)	When asked in cross‑examination about this apparent change of opinion between 2007 and 2011, Mr Robinson conceded that he was still of the view that Albert Neebrong was from the Victoria Plains district and he therefore remained uncertain about Albert’s status as a Badimia apical ancestor.  While Mr Robinson noted that “the documentary evidence connecting [Albert] as a Badimia person isn’t so strong”, Mr Robinson appeared unwilling to rule out Albert Neebrong as a relevant apical ancestor on the basis that Albert was “included [in the application] by the claimants” and his “reputation” amongst current claimants is that he was a Badimia person. 
(4)	However, in the State’s submission, none of the evidence given by the Aboriginal witnesses in this case establishes that Albert Neebrong was even, “by reputation”, a Badimia person. In most instances the witnesses who were said to be descended from Albert had very little knowledge of him.
(5)	For example, Leah Bell said that Albert “was connected to [her] family some way” and was a partner of Dinah but Ms Bell did not know how Albert was related to her.  Ms Bell did not know where Albert came from and did not refer to him as a Badimia person.  Ashley Bell stated that according to “general talk” Albert was a Badimia person but Mr Bell did not think that Albert was a blood relation to him and he did not know where he was from.  Beverly Slater had heard that Albert might have been Galena’s father but could not comment on whether that was correct.  Ms Slater said that she thought Albert was from the Victoria Plains area.  Coral Brockman did not know who Uanda’s father was and did not know anything about Albert.  Ms Brockman gave evidence that until counsel for the State asked her about Albert she “never even knew that name”.  Darryl Fogarty did not know who Galena’s parents were. 
(6)	Mr Robinson ultimately conceded that Albert’s “reputation” as a Badimia person was not reflected in the evidence given in the proceeding, stating that he must have been “thinking more in research materials”.  
(7)	In the State’s submission, the Court cannot place any reliance upon unidentified, and with great respect, potentially non-existent, research material to support Albert Neebrong’s inclusion as a Badimia apical ancestor. To the extent that such material exists and formed the basis of Mr Robinson’s opinions the onus was upon the claimant to place that evidence before the Court. As noted in Eric Preston Pty Ltd v Euroz Securities Ltd [2011] FCAFC 11; (2011) 274 ALR 705 at [171] “The proposition that an expert’s opinion based upon certain assumptions which are not ultimately proved in evidence is irrelevant is a fundamental principle of the law”.
(8)	Further, and in any event, other material identified by Dr Brunton indicates that Albert Neebrong was not a Badimia person.  In particular, Lois Tilbrook’s book Nyungar Tradition (University of Western Australia Press, 1983) contains a genealogy which includes an “Albert Neberong”.  In Dr Brunton’s opinion the similarities in names and likely dates of birth, and the mixed Noongar and white ancestry, would seem to suggest that he was the same Albert Neebrong under consideration.  Mr Robinson appeared to agree with this proposition.  Dr Brunton ultimately concluded that, irrespective of whether Albert Neebrong was the biological father of Uanda and/or Galena, there was no evidence that Albert had any traditional association with the claim area.  
(9)	In the State’s submission, in circumstances where the Aboriginal witnesses knew nothing of substance about Albert Neebrong (including their own descent from him) and did not give any evidence supporting his being a Badimia person, and where the only documentary material available indicates that Albert was not a Badimia person, the Court must conclude that Albert Neebrong was not traditionally associated with the claim area and did not identify as a Badimia person.  It is also not established, in any event, that there are any members of the native title claim group who are biologically descended from Albert Neebrong. 
249		The Court, having regard to the basis upon which the anthropologists have expressed their opinions concerning Albert Neebrong and the substance of the direct evidence of claimants about him, is unable, on the balance of probabilities, to find that he was a Badimia person or a person with a traditional association with the claim area.
250		As to Dinah, Galena and Uanda, the anthropologists agree, on the basis of information given to them, and the Court accepts on this basis and the evidence of the descendants, that Dinah was a wife of Albert Neebrong and the mother of Galena and Uanda.
251		The Court notes that claimants who gave evidence about Dinah, and who are descended from Uanda (including Leah Bell, Darryl Fogarty, Beverly Slater, Coral Brockman and Ashley Bell) were emphatic in their views that Dinah and Uanda were Badimia.  
252		It is understood that if Dinah, like Albert Neebrong, was not Badimia, then it is not possible to say that her daughters Uanda and Galena were of Badimia descent.  
253		There is no evidence, in this case, to suggest that Dinah, or Uanda and Galena were, by traditional law or custom, received into the community of Badimia people as Badimia.  
254		All the evidence points to Dinah, Uanda and Galena being persons without a Badimia ancestry or a traditional association with Badimia country.  Dinah, on the available evidence, appears to have come to the claim area from another part of the State.
255		The position is, as Mr Robinson reasonably acknowledged, that there is no documentary evidence to support Dinah being a Badimia person or a person with a traditional association with the claim area.  The claim relies very much upon the insistence of descendants of Dinah and Uanda, that Dinah was Badimia.
256		In the view of the Court, having regard to all the evidence and the submissions made on behalf of both the claimants and the State, the claim that Dinah was Badimia appears to be founded on her undoubted long, historical association with the claim area.  No doubt to many she was thereby considered to be Badimia.  The same is true of Uanda and Galena.  Each lived in the claim area for many years.
257		It is perfectly understandable that the descendants of Dinah and Uanda who gave evidence, and who grew up in an area that they always believed was Badimia country, and who know no other Aboriginal cultural way than that of the Badimia, consider that they and their ancestors Dinah and Uanda are and were Badimia people.
258		As a matter of native title law, under the NTA, however, as explained above, it is necessary for claimants who claim through a particular apical ancestor to satisfy the Court, on the balance of probabilities, that their relevant ancestor was a member of the group that held native title at sovereignty – which in this case, on the claimants’ contentions, was the Badimia people.  The Court cannot be so satisfied in the cases of Dinah, Uanda or Galena.
259		The Court therefore finds that none of Albert Neebrong, Dinah, Uanda and Galena were Badimia people or people with a traditional association with the claim area.
Bilygwi and Yilayajambin 
260		Ollie George and Frank Walsh Snr gave evidence that these old people were their ancestors and were Badimia.  The claimants submit that the evidence given by these elders should be accepted.  
261		The claimants note and submit:
(1)	In relation to the evidence regarding Bilygwi and Yilayajambin being Badimia apical ancestors, Mr Robinson checked the genealogical information with Ollie George in relation to his antecedents at the July 2012 hearing.  He notes that Mr George’s mother’s name was also Bilygwi, which is consistent with a custom amongst Aboriginal groups of passing names through alternate generational levels. 
(2)	Dr Brunton considers that the available evidence did not provide much support for the claim that Bilygwi and Yilayajambin had a traditionally-based association with the claim area, as the earliest documented link is from a time around two decades after European settlement in the area. Nevertheless, even if they did have such an association Dr Brunton was not convinced as he has not seen any documentary evidence to indicate that Rosie, from whom the George family is descended, was actually the daughter of Bilygwi and Yilayajambin, or that there are any living descendants of their son, Nugget.  However, Ollie George gave evidence that Dinah and Nugget were Badimia and they raised him on Kirkalocka Station and had a son, William Sport.  Ollie George gave evidence that Rosie was his mother’s, (Ms C George) mother, and that Rosie was Badimia.  He asked in cross-examination, “How could I say she’s not a Badimia if she’s living in this land”.  Frank Walsh Snr gave evidence that Ms C George’s parents were Rosie and Ginny who were both Badimia, and Rosie’s parents were Bilygwi and Yilayajambin.
262		The State notes as follows:
(1)	According to Mr Robinson, Bilygwi and Yilayajambin are the progenitors of the George and Walsh families.  
(2)	In the State’s submission two difficulties arise with accepting Bilygwi and Yilayajambin as Badimia apical ancestors.  First, there is no evidence showing that Bilygwi and Yilayajambin (or their ancestors) had a traditional association with, or rights and interests in, the claim area at sovereignty.  Second, and in any event, even if Bilygwi and Yilayajambin did have traditional rights in the claim area, it has not been established on the balance of probabilities that they have any living descendants. 
(3)	Mr Robinson was of the opinion that Bilygwi and Yilayajambin were born circa 1869.  However, he was unable to express any opinion as to their places of birth.  No place of birth has been suggested in the proceeding for Yilayajambin and while the claimants’ genealogies assert that Bilygwi was born at Wynyangoo Station, no basis was identified for that assertion.  Mr Robinson conceded that he was unaware of where the assertion of Bilygwi’s purported place of birth may have come from.  Accordingly, in the State’s submission, the assertion that Bilygwi was born at Wynyangoo Station must be given no weight.
(4)	In the result, there is no evidence at all as to either person’s birthplace.
(5)	Mr Robinson concluded in his first report that he was “unable to find any documentary information confirming Bilygwi and Yilayajambin as Badimia persons” but, nevertheless, was of the view that there was “support for their identity as Badimia from the evidence of Ollie George and Frank Walsh Snr and their association with the Badimia claim area”.  As submitted above, reasoning of that kind reflects an unsatisfactory approach to this topic.
(6)	In the State’s submission there is no documentary evidence to show that Bilygwi and Yilayajambin might have had a traditional association with the claim area.  According to Dr Brunton the earliest documented source for any association of Yilayajambin with the claim area is a report that dogs belonging to “Ela Jumbin” were destroyed at Thundelarra in 1894, around two or three decades after European settlement in the area.  Dr Brunton concluded, correctly in the State’s submission, that this did not provide strong grounds for thinking that Yilayajambin had a traditional association with the claim area.  
(7)	There is no documentary evidence associating Bilygwi with the claim area, traditionally or otherwise. 
(8)	Further, in the State’s submission the evidence of Ollie George and Frank Walsh Snr does not support a conclusion that Bilygwi and Yilayajambin were Badimia people or otherwise had a traditional association with the claim area.  The effect of that evidence is that they know nothing of substance about Bilygwi and Yilayajambin.
(9)	It has not been established on the balance of probabilities that Bilygwi or Yilayajambin were Badimia people or had a traditional association with the claim area.
(10)	Bilygwi and Yilayajambin were said by Mr Robinson to have had a daughter called Rosie and a son called Nugget who, in turn, had a son called William Sport with a woman named Dinah. 
(11)	Five references are provided in the claimants’ genealogies as the basis for the assertion that Rosie was Bilygwi and Yilayajambin’s daughter.  However these references do not support that assertion. 
(12)	The first reference (footnote 2) refers to a Tindale journal which contains no information about anyone called Rosie.  
(13)	The second reference (footnote 3) refers to an interview between Ms C George and Dr Jim Taylor in 1998.  It appears (although interpreting the relevant document is not without difficulty) that Ms George may have told Dr Taylor that “Elie Chumin” was Rosie’s father, but she apparently did not know who Rosie’s mother was. 
(14)	The last three references (footnotes 5, 6 and 7) are to evidence given by the Aboriginal witnesses which, when examined in its entirety, demonstrates that the witnesses know little, if anything, about Bilygwi and Yilayajambin.  It clearly does not support a relationship between them and Rosie. 
(15)	Footnote 5 was a reference to the witness statement of Frank Walsh Snr which stated that “My great grandma Rosie’s parents were Yilayajambin and Bilygwi. I don’t remember who told me this, I just knew”.  However, Mr Walsh Snr’s oral evidence clearly demonstrated that he did not know who Yilayajambin was, including careful and lengthy cross‑examination designed to ensure that counsel for the State and Mr Walsh Snr were talking about the correct person (which included Mr Walsh Snr looking at a document containing Yilayajambin’s name which Mr Walsh Snr said he could read).  Further, while Mr Walsh Snr had heard the name Bilygwi before, he was unable to identify his relationship to her and thought that she was Rosie’s daughter.  Mr Robinson conceded that the transcript “suggests on the face of it that [Frank Walsh Snr] had heard of one of the couple but not the other”. 
(16)	Footnote 6 was a reference to the witness statement of Ollie George which Mr Robinson conceded did not link Rosie to Bilygwi and Yilayajambin.  Further, Mr George gave evidence that he did not know anything about Rosie but guessed she was Badimia on the basis that she lived in Badimia country.  Footnote 7 was a reference to Mr George’s oral evidence which, again, Mr Robinson conceded did not link Rosie to Bilygwi and Yilayajambin.
(17)	It was ultimately conceded by Mr Robinson that the footnotes relating to Rosie in the claimants’ genealogies are:
simply footnotes that provide cross references to source material, whether they be claimant evidence or documentary material that identify this person called Rosie George … either by her full name or by some other name. They’re not necessarily proof of a biological or genealogical connection … So I wouldn’t read too much into them in terms of - they’re not doing the kind of work that I think you’re suggesting.
(That is, demonstrating a relationship between Yilayajambin and Bilygwi and Rosie).
(18)	In his supplementary report, Mr Robinson stated that during the hearing in July 2012 Ollie George “confirmed the information about his parents and grandparents and that the latter were named Yilayajambin and Bilygwi”.  In the State’s submission no weight should be given to this hearsay information. 
(19)	First, the information is incorrect as Bilygwi and Yilayajambin were not Ollie George’s grandparents (they were his great grandparents).  Second, this information was not contained in Mr George’s witness statement, nor was it mentioned when Mr George was cross‑examined in 2010.  At that time Mr George made no mention of the names Bilygwi and Yilayajambin despite lengthy cross‑examination about his ancestry.  Third, at the time of the conversation between Mr Robinson and Mr George, Mr George was said to be mentally unfit to appear to give evidence when the State had sought to have him recalled.  Lastly, and in any event, it appears that Mr George did not, in fact, actually specify his relationship to Bilygwi and Yilayajambin but rather was merely shown Figure 13 in Mr Robinson’s first report and asked to confirm it. 
(20)	Accordingly, in the State’s submission, leaving aside whether Bilygwi and Yilayajambin (or their ancestors) had rights and interests in the claim area at sovereignty, there is no evidence to support a finding that they had a daughter named Rosie.
(21)	Mr Robinson suggested that Rosie was the sister of Nugget Sport who was the partner of Dinah.  However, Ollie George states that it was Dinah aka Moolubirnda who was Rosie’s sister and her partner was Nugget aka Jewdamin.  Both Mr Robinson and Mr George said that Dinah and Nugget had one child, William Chumin, aka William Sport. 
(22)	The available evidence recorded by Tindale and later by Day and Morrissey in their book Drawn to Mount Magnet suggests that Nugget was born circa 1886-1889. 
(23)	In 1966, Tindale recorded details for a “Nugget Jumpin” from a list of about 140 pensioners provided to him by the Superintendent of the Department of Aboriginal Affairs in Geraldton.  Tindale noted that Nugget was born in 1889 and was a “fb” (full blood).  At the time, Nugget was living at Mount Magnet.  According to Tindale, Nugget’s father’s name was “Eli Jumpin” and his mother’s “Pejaway”.  Dr Brunton stated that, while he concurred with Mr Robinson’s suggestion that Eli Jumpin was Yilayajambin, he thought it less clear that Pejaway was Bilygwi, although he could not rule it out. 
(24)	Day and Morrissey recorded that Elizabeth Broad, who took up Wydgee Station with her husband, Robert, in the late 1880s “cared for the Aboriginal people who had settled at the Wydgee homestead.  One Yamadji she reared was Nugget Chummin, who was about the same age as her youngest child, Frederick”, who was born in 1886. 
(25)	In the State’s submission, even assuming that Nugget was the son of Bilygwi and Yilayajambin, it appears unlikely that Nugget had any biological descendants. William Sport, who is said to be Nugget’s son, was recorded as being born circa 1900.  Given a birth date for Nugget of approximately 1886‑1889, this would have meant that Nugget had William at between 11 and 14 years of age which, Dr Brunton correctly observed, makes it very hard to accept that Nugget and William Sport were biological father and son. 
(26)	Further, Day and Morrissey record that Nugget and his wife Dinah “did not have any children but often had members of the George family staying with them”.  Under cross‑examination Ollie George (who was raised by Nugget and Dinah) seemed to suggest that William was the son of Dinah only and not Nugget.   
(27)	In any event, William Sport is asserted by the claimants to have had only two children, Esther and Janey.  The claimants’ genealogies do not identify any descendants of Esther or Janey Sport so it would seem that if they or any of their children are alive, they are not known to the claimants.  
(28)	The only evidence therefore is that there are no living descendants of Nugget.
(29)	In the State’s submission, given that there is no evidence to support a finding that Bilygwi and Yilayajambin had a daughter named Rosie and that there is no evidence of any living descendants of Nugget, even if one assumes that William Sport was his biological son (which appears unlikely), then the Court must find that the claimants have failed to identify anyone who may have rights and interests in the claim area through descent from Bilygwi and Yilayajambin.
263		The claimants note in reply to the submissions of the State that:
(1)	It is submitted, contrary to the State’s submission, that there is ample evidence to establish that both of the apical ancestors, Bilygwi and Yilayajambin, were in occupation of the claim area at the time of first settlement.  Even on Dr Brunton’s account, the earliest documented source that provides an association of Yilayajambin with the Badimia claim area is a report that dogs belonging to “Ela Jumbin” were destroyed at Thundelarra Station in 1894.  It also must be remembered that Ms C George, the mother of Ollie George, passed away at a very elderly age in about 2005.  Ms C George told Dr Taylor in 1998, in the presence of Ollie George, that “Elie Chumin” was her grandfather.  Many of the Badimia witnesses were able to give accounts of Ms C George teaching them about family and Badimia traditional ways. 
(2)	The State submits that five references are provided in the claimants’ genealogies as the basis for the assertion that Rosie (Ms C George’s mother) was Bilygwi and Yilayajambin’s daughter.  It was a confusing part of the genealogical programme, “Family Tree Maker”, that certain footnotes appeared as 1, 2 and 3 on each of the genealogies that indicated a generation and not an actual footnote to a reference, as would normally appear.  This was discussed and pointed out to the Court during the evidence given by Mr Robinson.  These confusing references were meant to be a superscript to indicate a generation number and an extract from the computer program instruction manual “Family Tree Maker Guide” was tendered. 
(3)	The State also criticises the second reference to Rosie being the daughter of Bilygwi and Yilayajambin, which relates to an interview between Ms C George and Dr Taylor in 1998.  When the handwritten field notes of Dr Taylor are examined, Ms C George is recorded as stating that Rosie was the daughter of “Eli Chumin (Yilayajambin)”. Therefore Ollie George, Frank Walsh Snr, Alan Walsh and Frank Walsh Jnr are descendants of Yilayajambin.  Furthermore, Dr Taylor’s notes also show that Nugget was Rosie’s brother. 
(4)	The State submits that no weight should be given to “hearsay information” that Mr Robinson gathered when he attended the July 2012 hearing.  Mr Robinson stated that he had confirmed with Ollie George information about his parents and grandparents and “that the latter were named Yilayajambin and Bilygwi”.  It is submitted that information provided to an anthropologist by his or her Aboriginal informants is, of necessity “hearsay”.  The weight to be given to that evidence is a matter for the Court.  The Court is aware from the medical certificate which was tendered that Mr George was medically unfit to give further evidence.
264		For the Court, as noted above, the direct evidence of claimants about matters to do with connection issues, including genealogical matters, needs to be carefully regarded.  The Court necessarily relies on it in the first instance, as do experts such as anthropologists.  
265		In some cases the European documentary evidence, including that from 100 years ago and more, may be of assistance in constructing a reliable family tree, but it may also make the oral testimony of living witnesses about such matters, seem historically unreliable.  In this case there is very little documentary evidence about Bilygwi and Yilayajambin.  What evidence there is, in the view of the Court, tends to suggest that they were Badimia people or people with a traditional association with the claim area.
266		The paucity of European documentary material bearing on these questions is not, however, a reason to conclude that they were not Badimia or did not have a traditional association with the claim area.  Rather, the evidence overall must be carefully weighed.
267		When that evidence is considered overall there is, as the State’s submissions suggest, some confusion in the upper generations as to who was married to whom, who were the children of whom, who were siblings and the like.  That, in all the circumstances, is not to be marvelled at.  Memory is not infallible and Aboriginal people did not maintain a written record of births, deaths and marriages; and it is only, as Dr Choo has pointed out, where an Aboriginal person came to the attention of the authorities, for one reason or another, that Aboriginal names tend to appear in the European record.
268		In this instance, in 1894 a record was made that dogs belonging to “Ela Jumbin” were destroyed at Thundelarra.  It may reasonably be accepted, as the anthropologists accept, that “Ela Jumbin” is probably the same person as Yilayajambin, as the name is spelt in this proceeding.  
269		While it is no doubt correct to say that that piece of information on its own does not confirm that Yilayajambin was Badimia or a person whose ancestors held native title at sovereignty, given that 1894 is only two or three decades after European pastoral settlement in the area, a serious question concerning such a conclusion is raised for consideration.
270		Then there is Tindale’s journal entry from 1966 where Tindale records details for a “Nugget Jumpin”, noting Nugget was born in 1889 and was a “full blood” Aboriginal living at Mount Magnet at the time.  According to the entry, Nugget’s father’s name was “Eli Jumpin” and his mother’s “Pejaway”.  Again the anthropologists reasonably accept, as does the Court, that this “Eli Jumpin” is one and the same person as “Ela Jumbin” referred to in the 1894 record and Yilayajambin, the claimed apical ancestor in this proceeding.  
271		While Dr Brunton was not prepared to accept that the “Pejaway” referred to in 1966 by Tindale was the same person as Bilygwi, the apical ancestor claimed in this proceeding, he was not prepared to rule it out.  Nor would the Court rule out that possibility.
272		The material recorded by Day and Morrisey and referred to above, suggests that “Nugget Chummin” was born in about 1886 or so.
273		Significantly, Ms C George, who by all accounts in the evidence was a senior and highly respected woman who identified as Badimia, and was the mother of Ollie George (who gave evidence in the proceeding), provided information about her antecedents in an interview with Dr Taylor in 1998.  I accept the observation made on behalf of the claimants that when the handwritten field notes of Dr Taylor are examined, Ms C George is recorded as stating that Rosie was the daughter of Yilayajambin (in that record referred to as “Eli Chumin”).  Those notes also show that Nugget was Rosie’s brother.  
274		Notwithstanding the uncertainties as to the family history and relationship of Rosie and Nugget, I am satisfied on the balance of probabilities, particularly taking into account the material drawn from the historical record and what Ms C George stated in her lifetime, that Nugget Chumin aka Nugget Jumpin was the brother of one Rosie (whether biological or by adoption) and their parents were Yilayajambin and, in all probability, Bilygwi.
275		The fact of the matter is that, while Ms C George did not name the mother of Rosie, as the State points out, she did indicate that Rosie was also the daughter of Eli Chumin aka Yilayajambin.  She also indicated that Nugget was Rosie’s brother.
276		In circumstances where records of births and family relationships were not maintained in this Aboriginal community, and many years have passed, and given the authority with which Ms C George is accorded in her community, in the view of the Court it is appropriate to give weight to her statements about family relationships.  On that basis, on the balance of probabilities, the Court considers both Yilayajambin and Bilygwi to have been Badimia people and Nugget Sport aka Nugget Jumpin and Rosie to have been their children and also Badimia people, or at least that both had traditional associations with the claim area.
277		These findings are important because Ollie George gave evidence that Rosie was the mother of his mother, Ms C George, and that Rosie was Badimia.  When Mr George was asked during cross‑examination whether Rosie was Badimia, and he answered “How could I say she’s not a Badimia, if she’s living in this land”, that response should be understood as a deeply nuanced affirmation that Rosie was Badimia or at least was traditionally associated with the place where she lived, not merely a statement that because she lived on what he identified as Badimia land she was necessarily Badimia. 
278		In those circumstances, the submission of the State that the claimants have failed to identify anyone who may have rights and interests in the claim area through descent from Bilygwi and Yilayajambin must be rejected.  
279		Difficulties with placing William Sport in the family tree, and particularly as an offspring of Nugget Sport aka Nugget Jumpin are not easily resolved, as the submissions of the State suggest.  They provide no reason, however, to qualify the conclusion that the Court has reached that, on the balance of probabilities, Bilygwi and Yilayajambin were Badimia, as were their children, Nugget and Rosie, Rosie being a person through whom Ollie George, for example, claims ancestry.
Ninghan Billy and Ninghan Freddie
280		The claimants note and submit:
(1)	In relation to the Badimia identity of Ninghan Billy and Ninghan Freddie, Mr Robinson in his first and supplementary reports supported them being Badimia.
(2)	Dr Brunton stated that the earliest documentary record for Ninghan Freddie was 1915 and for Billy it was 1899.  Dr Brunton said there was not much support for the Ninghan brothers having a traditionally-based association with the claim area.  In addition, the documents indicated that Ninghan Freddie was born at Youanmi, which would suggest that a station designation in an individual’s name did not depend on having been born on the station or in its vicinity.  Dr Brunton noted that there also seems to be a reasonable possibility that Ninghan Billy did not have any biological descendants.
(3)	During the concurrent evidence, however, Dr Brunton agreed with Mr Robinson that it was a reasonable assumption that Ninghan Freddie is shown on Bates’ genealogy as the brother of “Munjajee”, who Bates identified as “Baadeemaia” (which Dr Brunton calls western Badimia). 
281		The State notes and submits that:
(1)	In 1939, Tindale obtained genealogical information at Southern Cross which suggested that Ninghan Freddie was a Widi man born in Youanmi, which is about 50 kilometres outside the claim area to the east.  Confusingly, Mr Robinson first estimated that Ninghan Freddie was born around the time of sovereignty, but then opined that he would have been born circa 1870, or around the time of European settlement in the region.  In Dr Brunton’s opinion the latter date was far more likely. 
(2)	The earliest documentary record for Ninghan Freddie would appear to be in the Yalgoo Police Occurrence Book in 1915, where he is identified as “Nearmurra aka Ninghan Freddie”.  Ninghan Freddie died at Thundelarra Station in 1940.  Alex Palmer referred to him as being “fairly mobile … [driving] about in a trotting-spider pulled by a donkey”. 
(3)	No person who was descended from Ninghan Freddie gave evidence and there is no evidence that any of his descendants identify as Badimia people.
(4)	There was no evidence about Ninghan Billy’s date or place of birth.  Ninghan Billy died in 1941.  Alex Palmer noted Ninghan Station was the “home ground” of “Ninghan Annie and her husband, Ninghan Billy” and that Billy was buried on Ninghan Station a short distance from Delaneys Well “in the traditional Aborigine manner, sitting up facing the place of his birth” (which place Mr Palmer did not specify).  
(5)	The earliest documentary record for Ninghan Billy comes from Arrino Station (which is about 30 kilometres south-east of Mingenew) in 1899 where he was working as a shepherd.  Later in the year Ninghan Billy was reported as having “gone eastward to the bank’s Ninghan Station”.  Forty years later, in 1937, Ninghan Billy, along with his partner Annie Lawson, was reported as being camped at the Barron, an outstation of Thundelarra Station, gathering dead wool.  The couple was also reported to have frequently camped at Fields Find, where they obtained food from prospectors.  
(6)	The evidence indicates that Ninghan Billy had no biological descendants.  Rather, he was the social or foster father of Annie Lawson’s children, Joe and William Lawson.
(7)	Joe Lawson’s death certificate, and that of his brother William, both indicate that their parents were Annie and William Lawson.  Further, a Department of Aboriginal Affairs personal history card lists “William Ninghan” (aka Ninghan Billy) as the foster (not biological) father of William Lawson and the husband of Annie.  Both Annie and Ninghan Billy were recorded as “F[ull] Bloods”.  Another Department of Aboriginal Affairs personal history card notes that in July 1939 “Annie and Billy were camped at Ninghan Stn. with Annie’s half-caste son, Billy Lawson, who works on Ninghan”,  again suggesting that Billy was not the biological father of William Lawson (given both Ninghan Billy and Annie were said to be “full bloods”).  In oral evidence Mr Robinson agreed that it was possible that Ninghan Billy was the social, not biological, father of Joe and William Lawson but had not considered the issue previously. 
(8)	On the basis of a Bates genealogy, combined with information taken from police files, Mr Robinson suggested that Ninghan Billy and Ninghan Freddie were brothers.  Bates obtained a genealogy at Rottnest Island which she headed “Talleerain, Mindoola, Mara, Polly’s Pedigree” (Polly’s Pedigree genealogy).  This included four siblings, “Munjaajee” (f), “Muggalbee” (f), “Woondamurra” (m) and “Nyammara” (m), whose father was “Thallingarree” and whose mother was “Yalgoonja”, the daughter of “Kardamooroo” (m) and “Wooboil” (f).  The four siblings were recorded as having had “no issue”.  The genealogy does not identify a tribal affiliation for any of the persons contained on it. 
(9)	Mr Robinson suggested that “Nyammara” in the Polly’s Pedigree genealogy is the “Nearmurra aka Ninghan Freddie” identified in a 1915 Yalgoo Police Occurrence Book and that “Woondamurra” in the genealogy is the “Billy Wandamarra” or “Wandamarrah aka Billy” or Ninghan Billy identified in a 1903 Fields Find Police Occurrence Book.   Dr Brunton concluded that Mr Robinson’s identifications are plausible, and on this basis, Ninghan Freddie and Ninghan Billy may well have been brothers. 
(10)	However, Dr Brunton stated that while he could confidently locate “Mara” (the place name in the heading of the Polly’s Pedigree genealogy) neither Talleerain nor Mindoola are in – or even particularly close to – the claim area (Mindoola is around 80 kilometres north of the north west boundary and Talleerain (if it meant Tallering Peak) is around 80 kilometres west of Yalgoo).  Mr Robinson was unwilling to speculate where Mindoola or Mara were located but seemed to agree that Talleerain and Mindoola were outside the claim area. 
(11)	Mr Robinson also suggested that on another Bates genealogy, a “Munjajee” (the purported sibling of Ninghan Billy and Ninghan Freddie on the basis of the Polly’s Pedigree genealogy) was recorded as a “Baadeemia”.  The Bates document Mr Robinson relied upon for this information appears at the end of a document titled “Native Vocabulary” (Native Vocabulary genealogy), obtained from a man called “Baandee or Manninggoo”, of “Carnamah, also Minyajee”. The vocabulary appears to have been from a language called “Yeerathoo”, spoken by the “Thowanyoo” or “Dhowarngoo” people.  Carnamah is south‑west of Perenjori, well outside the claim area. 
(12)	This Native Vocabulary genealogy records three siblings, “Munjajee” (f), “Dhooligoo” (m) and “Ningenberdee” (m).  Dhooligoo was married to “Meengoo” (who was identified as “Baadeemaia”) and they had two children.  Munjajee, Dhooligoo and Ningenberdee’s mother was “Beeannee” and their father was “Ngannonga”.  Ngannonga’s parents were “Kardoomooroo” (m) and “Wooborr” (f).  
(13)	The reference to Munjajee as a “Baadeemaia” occurs only on the handwritten version of the Native Vocabulary genealogy, several pages after the relevant genealogy, and does not appear on the later final typewritten version  (hence Dr Brunton’s initial opinion that Mr Robinson incorrectly identified Munjajee as a Baadeemaia from this document).  
(14)	Mr Robinson was of the opinion that, based on phonetic similarity between some of the names on the two Bates genealogies and the fact that Munjajee was recorded as a Baadeemaia person on one of them, they depicted the same people.  However, in the State’s submission, the Native Vocabulary genealogy and the Polly’s Pedigree genealogy were obtained from different informants and depict different persons. 
(15)	First, Mr Robinson agreed the two genealogies were collected at different times, at different locations and from different informants.  Second, Mr Robinson also agreed the names and number of Munjajee’s siblings differ between the genealogies.  On the Native Vocabulary genealogy Munjajee has two brothers, Dhooligoo and Ningenberdee, while on the Polly’s Pedigree genealogy she has two brothers, Woondamurra and Nyammara, and a sister Muggalbee.  Third, in the Polly’s Pedigree genealogy, Munjajee’s siblings are recorded as having had no children, while in the Native Vocabulary genealogy one of Munjajee’s brothers is shown as having two children.  Fourth, Munjajee’s parents are given different names in the two genealogies. On the Native Vocabulary genealogy they are Thallingarree and Yalgoonja, while on the Polly’s Pedigree genealogy they are Beeannee and Ngannonga. Lastly, although the grandparents of Munjajee were given as Kardoomooroo and Wooborr in the Native Vocabulary genealogy (which is similar to the Kardamooroo and Wooboi in the Polly’s Pedigree genealogy) they are identified as Munjajee’s paternal grandparents in the Native Vocabulary genealogy, while they are shown as maternal grandparents in the Polly’s Pedigree genealogy. 
(16)	Accordingly, given that there is no evidence to support a link between the Polly’s Pedigree genealogy and the Native Vocabulary genealogy, even assuming that the Woondamurra and Nyammara of Bates’ Polly’s Pedigree genealogy were Ninghan Billy and Ninghan Freddie respectively, there is nothing therein to suggest that they were Badimia people or had any association with the claim area (in fact the contrary is to be inferred: both genealogies relate to places well outside the claim area). 
(17)	Further, although Dr Brunton agreed that there was a possibility that Ninghan Freddie was the “Ningenberdee” of the Native Vocabulary genealogy (and could, therefore, be a Baadeemaia based on his sister’s recorded identity) there were still some inconsistencies in the genealogies, including, for example, the fact that the genealogy does not record Ninghan Billy as a sibling.
(18)	The Aboriginal evidence about Ninghan Freddie and Ninghan Billy was very slight and does not assist the claimants.  Percy Lawson gave evidence corroborating the documentary evidence, suggesting that Ninghan Billy and Ninghan Freddie came from country outside the claim area and that their association with the claim area arose as a result of working on Karara, Ninghan and Thundelarra Stations.  Mr Lawson stated that they both “spoke for the country around Perenjori, and they’d come out to Thundelarra Station and out in the flats”.  Ashley Bell said that Ninghan Billy was a Badimia person but when questioned as to why he thought so, stated that there was “not really” a reason, only that Ninghan Billy was “always spoken of as being from here and living here”.  Mr Bell had never heard that Ninghan Billy had come from Arrino and did not know whether Arrino was Badimia country. 
(19)	In the State’s submission, while Ninghan Billy and Ninghan Freddie’s names obviously indicated an association with Ninghan Station, by the time they first appeared in the documentary record, around a quarter century (or longer in the case of Ninghan Freddie) had passed since the station had been established.  Accordingly, there are no strong reasons for thinking that Ninghan Billy or Ninghan Freddie (or their ancestors) had an association with Ninghan Station or the claim area which predated European settlement.  Further, Tindale’s statement that Ninghan Freddie was born in Youanmi, if correct, suggests that his identification with Ninghan Station was established later in his life and, as noted by Dr Brunton “further indicates the need for caution in assuming that the adoption of a station name necessarily signified a traditionally‑based association”.  Mr Robinson’s similar cautions in respect of station identifications are pertinent here too.  The only Aboriginal evidence about their origins, from Percy Lawson, also suggests their association with Ninghan was historical, rather than traditional.
(20)	The Court should find, on the balance of probabilities, that neither Ninghan Freddie nor Ninghan Billy had traditional associations with the claim area.  And on the balance of probabilities, the evidence is against either man having identified as a Badimia person. There is no direct evidence that either man did so.  There was, in any event, no evidence that either man has any biological Badimia descendants.
282		The Court finds, on the balance of probabilities, for the reasons advanced in the submissions made on behalf of the State, that neither Ninghan Billy nor Ninghan Freddie had a traditional association with the claim area and that they were not Badimia people.  The evidence is against either man having identified as a Badimia person.  There is no direct evidence that either did so; nor is there any evidence that either has any biological Badimia descendant.  
Polly Little
283		The claimants note and submit:
(1)	Whether Polly Little is a Badimia apical ancestor is dealt with in Mr Robinson’s first and supplementary reports.  Dr Brunton discusses Polly Little in his first report.
(2)	Dr Brunton did have some reservations about Polly Little as follows: 
On the basis of Tindale recording that Polly was born at Mount Magnet in the 1870s and my inference that it would likely have been in the first part of the decade, I think it is reasonable to assume that one or both of her parents had traditionally-based associations with the claim area.  However, I think it is more likely than not that she was not a Badimia woman.  
Dr Brunton focused on his earlier opinion that “the people of Mount Magnet and the area to its north were probably Wajarri or a closely related group”. 
(3)	Mr Robinson considered that the documentary evidence supports the conclusion that Polly Little was Badimia and it is also a matter of reputation within the Badimia community that Polly Little was Badimia.   Dr Brunton recorded that Polly Little’s son, Jimmy, told Tindale that she was born in Mount Magnet in the 1870s.  Roderick Hedlam says he was told that Polly Little was born at Wogarno Station, about 12 kilometres south of Mount Magnet. 
284		The State notes and submits:
(1)	The State accepts that the documentary evidence suggests Polly Little had a traditional association with the Mount Magnet area. However, there is no direct evidence that she identified as a Badimia person.  None of the evidence pre-dating the Badimia application says she was Badimia, although that is generally her reputation now among the Aboriginal witnesses who referred to her.  The only evidence is an assertion in the claimants’ genealogies that Polly Little’s daughter identified as Badimia, which was shown to be incorrect. 
(2)	The State submits that the Court cannot assume, on the basis of the evidence of the contemporary Aboriginal witnesses, that Polly Little would have identified as a Badimia person.  Given the demonstrated difficulties with that reputation evidence, it is not on its own sufficient to enable a positive conclusion to be drawn on the balance of probabilities.
(3)	In any event, to the contrary is Dr Brunton’s opinion that it is more likely than not that Polly Little was not a Badimia person based on his view that the Mount Magnet area was at sovereignty associated with Wajarri people or another group.  If the Court is not satisfied that the Mount Magnet area was associated with Badimia at sovereignty (the State submits the Court should not be), then it cannot be satisfied that Polly Little would have identified as Badimia.
285		In reply the claimants note that:
(1)	The State accepts that the documentary evidence suggests that Polly Little had a traditional association with the Mount Magnet area.   However, the State submits that there is no direct evidence that she identified as a Badimia person.  The State says that it is Dr Brunton’s opinion that it is more likely than not that Polly Little was not a Badimia person but instead a Wajarri person, based on his view that Mount Magnet was Wajarri country. 
(2)	The State makes the assertion that Polly Little was of the Wajarri, or another group, based on the view that the Mount Magnet area was associated with Wajarri people. There is no overlapping Wajarri claim, there is no evidence that Polly Little is a Wajarri apical ancestor and this assertion was not put to Lance Mongoo, a Wajarri witness, when he gave evidence.  There is a preponderance of evidence that Polly Little was a Badimia person.   
286		The Court accepts, as indeed the parties do, that Polly Little had a traditional association with the Mount Magnet area.  Thus the only question is whether she was a Badimia person or belonged to some other “tribal” group.
287		Dr Brunton’s view was that the “tribal” group for the relevant Mount Magnet area was the Wajarri, and so it is most likely that Polly Little was Wajarri or belonged to some group other than the Badimia.
288		Having regard to the finding made above, to the effect that, on the balance of probabilities the whole of the claim area is not within traditional Badimia country, and the lack of any clear evidence that prior to this proceeding Polly Little identified as Badimia, the Court is unable to say with any degree of confidence that Polly Little was Badimia.  (Jimmy Little, on information of Tindale in the 1930s, and a son of Polly, does not appear to have identified himself as Badimia.)  Rather, the Court is left to speculate that Polly Little was a Badimia person.  
289		In these circumstances, the Court is not satisfied on the balance of probabilities that Polly Little was Badimia.
Lisa Martin
290		The claimants note and submit:
(1)	Mr Robinson provided an opinion regarding apical ancestor Lisa as being Badimia in his first and supplementary reports.  Although both experts considered that the evidence regarding Lisa Martin was slight, Mr Robinson stated that the additional evidence of the Badimia claimants allowed him to draw more certain inferences.  Subsequent to Mr Robinson conducting his research, Joan Walsh gave evidence in July 2012.  Her evidence is that she is a direct descendant of Lisa Martin and that her mother’s father, Fred Martin, was Lisa’s son.  Ms Walsh gave evidence that her family had lived in the Badimia claim area and in and around Mount Magnet and Wydgee Station.  The location and connection of the Martin family in the Badimia claim area is extensively discussed in Dr Choo’s further report.  Clarrie Cameron also gave evidence that he lived in Mount Magnet with Phyllis Martin, a Badimia person, who is the daughter of Lily Little and Fred Martin. 
291		The State notes and submits that:
(1)	The available documentary evidence suggests that Lisa Martin was born at around the time when European settlement in the claim area was beginning, and that she spent most of her life at Mount Magnet or Yalgoo.  However, there is no evidence of where she was born, or with which group she or her parents identified.  
(2)	Joan Walsh, who was the only witness descended from Lisa Martin to give evidence, did not mention Lisa in her witness statement.  When asked about her under cross‑examination, Ms Walsh stated that she knew nothing about Lisa Martin.  She did not know where she was born or where she lived and was never told much about her.  However, Ms Walsh considered that Lisa Martin was a Badimia person because she thought Lisa’s son, Fred, was a Badimia person.  That evidence is completely circular and logically not probative.  It is an example of the difficulties with the Badimia reputation evidence from some of the Aboriginal witnesses.  
(3)	There is no evidence of where Fred Martin was born or where he lived.  Mr Robinson was unprepared to say that Lisa Martin or Fred Martin had a traditional association with the claim area, noting only “I think there is some evidence now of her [Lisa’s] Badimia affiliations, if not of her association” with the claim area.   The evidence Mr Robinson was referring to was Ms Walsh’s bare assertion in her witness statement that Fred Martin was “a Badimia man” so it can be given little weight. In any event, Mr Robinson appears to have made an error in giving that evidence as he referred to “Fred Carnamah” as the son of Lisa.  Fred Carnamah was a different man who married into the family of another named apical ancestor.
(4)	In the State’s respectful submission, this very meagre and logically circular evidence cannot be sufficient to satisfy the Court that Lisa Martin identified as a Badimia person or had a traditional association with the claim area.  The onus is on the claimants to establish that fact through probative evidence, not upon the respondents to negative evidence which does not rise above a simple assertion.
(5)	The State repeats in respect of Lisa Martin the submissions made in respect of Polly Little.  
292		The claimants note in reply that:
(1)	In relation to apical ancestor Lisa Martin, Joan Walsh gave evidence that her mother’s father, Fred Martin, was a Badimia man.  During cross-examination, Ms Walsh stated that Fred Martin’s mother was Lisa and she had always known about her.  Dr Choo provided evidence of a large number of the Martin family living in the Badimia claim area. 
293		In contrast with the circumstances of Polly Little, the Court is unable to conclude on the basis of the evidence, on the balance of probabilities, that Lisa Martin was a person with a traditional association with the claim area, let alone Badimia.  As the State points out, the only proper foundation for such an inference is that her son, Fred Martin, identified as, or was identified as a Badimia man.  
294		However, the evidence to that effect is primarily based on the belief of Joan Walsh.  Ms Walsh otherwise knew little or nothing about Lisa Martin and simply expressed the opinion that Fred Martin was Badimia.  Such evidence of Fred Martin’s reputation as a Badimia person lacks any broader or more detailed community support.  
295		In the circumstances, there is a lack of probative evidence upon which the Court can reasonably found an inference that Lisa Martin was a Badimia person or had a traditional association with the claim area.
296		As a result, the Court is unable to find that Lisa Martin was a Badimia person.
Topsy
297		The claimants note and submit:
(1)	Mr Robinson provided an opinion regarding apical ancestor Topsy in his first and supplementary reports.  Percy Lawson gave evidence about his father’s mother, Budi, who was also known as Mary Wheelock aka Willock.  Mr Lawson knew her and said she was Badimia.  Topsy was the mother of Mary Wheelock and William Wheelock aka Willock aka Munguddy.
(2)	Nhanhagardi neighbour Clarrie Cameron gave evidence that old Budi was the mother of Mr P Carnamah.  Mr Cameron’s father worked with Mr P Carnamah on Gabyon Station in the claim area. They would camp at Gabyon with old Budi who was a respected elder in the Badimia community and who lived around the Paynes Find, Fields Find and Yalgoo areas.  Mr Cameron also said that Badimia man William Wheelock aka Willock from Yalgoo was married to Rita Green (Mrs Thompson) and died at Paynes Find.  Olive Gibson and Des Thompson also gave evidence to the same effect and said that William Wheelock’s sister was named Mary.
298		The State notes and submits that:
(1)	Very little is known about Topsy. Mr Robinson suggested that she may have been born near Meka Station (outside the claim area to the east) but provided no evidence or reasoning to support this proposition, save that her son Donald was born there in 1898.   However, as noted by Dr Brunton, “By this time Meka had been settled for nearly a quarter of a century and there are no grounds for assuming that a woman who gave birth on the station, would herself have been born there. As far as can be determined no other documents refer to Topsy”.  
(2)	Further, it is unclear whether Topsy had any descendants and, if so, who they were.  Mr Robinson opined that Topsy had four, or possibly five, children: Donald Wheelock; William aka Willie Wheelock; Mary Carnamah; Maudie Wheelock and Fred. 
(3)	No information has been located in respect of Maudie or Fred. Maudie appears in the claimants’ genealogies but not in Figure 17 of Mr Robinson’s first report depicting Topsy’s genealogy.  Fred appears in Figure 17 but not in the claimants’ genealogies. Neither is shown in either document as having descendants.  Mr Robinson said that he was unable to locate any documentary evidence for a child named Maudie. 
(4)	In the State’s submission the information available in respect of Donald, Willie and Mary is both contradictory and confusing (and does not ultimately resolve whether Topsy was their mother).
(5)	The weight of the evidence in fact suggests that Donald and Willie were cousins and did not share the same mother.  Donald’s Department of Indigenous Welfare personal history card confirms that he was born circa 1898 on Meka Station, the son of a white man named Edmund Wheelock and a “f.b.” woman named Topsy.  Edmund Wheelock had a brother, Isaac Wheelock aka Ike Willocks or Ike Willicks, who is identified as the father of Willie Willock on Willie’s Department of Indigenous Affairs personal history card and marriage certificate.  Willie’s mother is recorded as Jinnie Walker on both documents. Further, Tindale recorded a genealogy at Moore River in 1939, apparently from Willie’s widow Rita (Mrs Thompson), which showed her deceased husband “Bill” as being the son of a “white: and a “FB of Mount Magnet” but did not show any siblings for him.  However, the situation is slightly confused as Willie’s Department of Aboriginal Affairs personal history card also records him as having a brother called Don, who was said to be on Pindathuna (a station around 30 kilometres north of Yalgoo).  
(6)	Dr Brunton was of the opinion that, as Tindale’s genealogy does not include any siblings for Willie, the question of whether he was the full brother, half brother, or cousin of Donald Wheelock remains undecided although, in his opinion, the identification of Jinnie Walker as his mother on his personal history card made it more likely that Willie was not the son of Topsy. 
(7)	Whether Mary was the sister of either Donald or Willie is not clear. No records have been found regarding Mary and, aside from the evidence given by Percy Lawson (and a limited reference by Olive Gibson and Des Thompson), very little is known about her.
(8)	According to Olive Gibson and Des Thompson, Mary and Willie were siblings.  Willie was married to Rita Green (Mrs Thompson) and following his death, Rita was recorded as living on Badga Station with Willie’s sister, Mary, and her husband, Fred Carnamah.   On this basis, it would appear that Mary was the child of Jinnie Walker and not Topsy.
(9)	However, Percy Lawson gave evidence that Mary’s mother was Topsy Wheelock but said that he does not know much about her, except from what Mary told him.  In the State’s submission Mr Lawson’s evidence regarding his ancestry was generally very confused and cannot be relied upon.  For example, Mr Robinson recorded that Mary was born in 1896 and died in 1992 whereas Mr Lawson gave evidence that Mary was born circa 1866‑1871 and lived until she was 120.  However, given the birthdates of Mary’s children, this seems most unlikely as her youngest child would have been born when she was aged 64 to 69.   
(10)	In any event, Mr Lawson’s information regarding Topsy appears to have come from searches in government archives undertaken to learn about his family (as he was removed from his family at a young age).  Mr Lawson stated that he had “been trying for the last 15 years and I couldn’t get nothing of my grandmother’s [that is, Mary’s] background”  but that “one of the letters” (by which Mr Lawson meant government records) he found said Mary’s mother was Topsy.  It was not clear what document this was, although Mr Lawson appeared to agree with counsel for the State that it may have been Mary’s marriage certificate.  Mr Lawson was unable to say which set of documents (those stating Mary’s mother was Jinnie or those stating Mary’s mother was Topsy) was correct.  In the State’s submission it was clear from Mr Lawson’s evidence that he knew nothing of substance about Mary’s mother and/or Topsy.
(11)	In those circumstances the State submits that both Mr Robinson and Dr Brunton correctly concluded in their first reports that there is no documentary evidence to suggest that Topsy was a Badimia person and that it has not been established that she was a Badimia person with a traditional association with the claim area.  When questioned by the Court, Dr Brunton maintained that view.  Mr Robinson did not add to his earlier evidence, other than to refer to Mr Lawson’s oral evidence. 
(12)	It has not been established that Topsy was a Badimia person or had a traditional association with the claim area. There is no probative evidence for either proposition and both experts agree that neither proposition has been established.
299		The claimants note in their reply that:
(1)	With regard to the apical ancestor, Topsy, the State submits that very little is known about her.   The evidence that the State points to is that the Wheelock family have no descendants and there is a quandary as to whether Willie Wheelock was the full brother, half brother or cousin of Donald Wheelock.  It is submitted that the relationship between Willie and Donald is not of central importance in this proceeding. 
(2)	Whether Mary Wheelock, daughter of Topsy Wheelock, died when she was over 100 years old as Percy Lawson stated, or in her 90s as recorded by Mr Robinson, is of no moment.   What is important is that Mr Lawson gave evidence about Budi (aka Topsy) and stated that he is one of her descendants and she was a Badimia person.   The claimants repeats the submission that in determining whether an apical ancestor was Badimia, regard can and should be had to the claimants’ oral evidence and to reputation within the community. As Mr Robinson said in his oral evidence, the question of identification is a cultural one and as such, who one is, where one comes from and what one’s parents are, is a matter of reputation within an Aboriginal community. 
300		In all the circumstances, given the general paucity of evidence, the Court is unable to conclude that Topsy was a Badimia person.
301		On behalf of the claimants it is emphasised that what is important to note is that Percy Lawson gave evidence about Budi aka Topsy and said that he is one of her descendants and that she was a Badimia person.  On the basis of reputation within the community, the claimants submit that this evidence of reputation should be accepted.
302		Evidence of reputation, as noted above, may be telling in an appropriate case.  Here, however, for the reasons advanced on behalf of the State, Mr Lawson’s information about Topsy being the mother of Mary does not of itself appear to be based upon reputation within the community but upon independent research of government archives undertaken by him in order to learn more about his family, after being removed from his family at a young age.
303		So much of the other direct evidence and documentary evidence, noted on behalf of the State, suggests that Mary’s mother was Jinnie Walker, not Topsy.
304		The Court is unable to conclude, on the balance of probabilities, that Topsy was a Badimia person. 
Eva Renie
305		The claimants note:
(1)	It was agreed between the experts that Eva Renie was in occupation of the claim area at the time of settlement although Dr Brunton is not convinced that she was a Badimia person.  Mr Robinson discusses Eva Renie in his first and supplementary reports.  Eva Renie is considered by Dr Brunton in his first report.  Most relevant are a number of genealogies taken by Bates that include references to “Wongoojee” or “Wongaji”, the same name that Des Thompson ascribes to his mother Rita Thompson (Mrs Thompson), the daughter of Eva Renie.  The Bates documents associate Wongaji and her family with Windsor Station in the north-east of the claim area. 
306		The State notes and submits that:
(1)	Mr Robinson conceded there is little information about Eva in the documentary record, “and it is known only that she is said [presumably by the claimants] to be a Badimia person and mother of Rita [Thompson]”.  He conceded in his oral evidence that his opinion that Eva was a Badimia person was, in fact, based solely on the evidence of the Aboriginal witnesses in this proceeding. 
(2)	Mr Robinson was of the opinion that the research papers of Bates suggested that Eva was a person named “Wongoojee” or “Wongaji” who appeared in a number of genealogies.  While there was no explanation in Mr Robinson’s first report as to why a possible connection between Eva and Wongoojee or Wongaji was conjectured (as against any of the dozens of other Aboriginal women who appear on genealogies Bates collected for the region), Mr Robinson’s later evidence suggests that the connection came from Badimia claimants as, for example, Des Thompson gave Eva’s Aboriginal name as “Wongagee”. 
(3)	In the first Bates’ genealogy, “Loongoo’s genealogy”, a “Wongoojee” is shown as married to a “Joobena” and having two “half-caste” children, a boy and a girl.  Wongoojee’s father is shown as “Loongoo” and her mother “Jeewonga”.  In the second genealogy, “South Ngaiuwonga Tribe”, a “Wongaji” is shown as married to a “Ngajuli”.  They do not have any children and Wongaji’s parents are not shown. Wongaji is identified as “Ngajawonga” and Ngajuli is identified as “Ngaiyuwonga”.  In the third genealogy, “Ngaiuwonga South”, a Wongaji is again shown as married to a Ngajuli.  As with the “South Ngaiuwonga Tribe” genealogy they are not shown as having any children.  Wongaji’s father is shown as “Lungu”, a Ngaiuwonga man, and her mother is “Wajamunyangu”, a Ngajawonga woman.  Luungu is also shown as having a second wife, “Jiwonga”, a Ngajawonga woman.  
(4)	In the State’s submission, there are a number of difficulties with Mr Robinson’s account based on the Bates’ genealogies.
(5)	First, Mr Robinson conceded that it is not clear whether Bates’ Wongoojee and Wongaji are, in fact, Eva.  Mr Robinson suggested that the Wongoojee in “Loongoo’s genealogy” was Eva because Wongoojee was shown as having two (unnamed) children, a boy and girl, which Mr Robinson believed were Rita Green (Mrs Thompson) and her half-brother Jack Merrick.  However, Mr Robinson later conceded that Eva was not the biological mother of Jack Merrick and Rita was her only child.  Rather, Jack Merrick was the child of the apical Old Julia and a non-Aboriginal man called Jack Merrick (with whom Eva had a relationship but no children).  Accordingly, in circumstances where Eva had only one child, Rita Green, the conclusion that the Wongoojee in “Loongoo’s genealogy” is Eva is most problematic.  Mr Robinson speculated that there may have been an adoptive relationship between Eva and Jack Merrick, although he did not explain the basis for that speculation. 
(6)	Ultimately, when the difficulties with his account were put to him during cross‑examination, Mr Robinson appeared to change his opinion.  He said he was not sure that Bates’ Wongoojee was Eva Renie. 
(7)	Second, and in any event, even assuming (contrary to the weight of evidence) that Bates’ Wongoojee or Wongaji are Eva, Bates recorded her tribal affiliation and the affiliation of her parents as Ngaiuwonga or Ngajawonga.  For example, on the “Ngaiuwonga South” genealogy Wongaji’s parents are shown as Ngaiuwonga and Ngajawonga while on the “South Ngaiuwonga Tribe” genealogy Wongaji is identified as Ngajawonga.  Additionally, a further Bates’ genealogy records Eva’s daughter, Rita, as a Ngada person (and resident in Sandstone).   
(8)	While Mr Robinson stated in his supplementary report that he did not know what Ngada meant and was unaware of any language or dialect name called Ngaiuwonga or Ngajawonga,  he later conceded that Tindale had included the language name “Ngaiawongga” (or, alternatively, “Ngadawongga”) as the group bordering “Barimaia” to the north.  
(9)	Further, Mr Robinson also appeared to concede that Bates herself described tribal groups called the “Ngadha wonga” and the “Ngaia wonga” which were likely to be the groups referred to in the relevant genealogies.  In particular, Bates recorded that:
The Ngadha wonga (ngadha - I, me) area was a large one, covering Peak Hill district, the Robinson Ranges, Meekatharra district, part of the Murchison River, the Ord, and Minderoo Creeks and many other tributaries of the Murchison …  The western neighbours of the Ngadha wonga were the Wajari …  The Ngaia, Ngaiu or Ngai-yu wonga occupied the Lake Way district (ngaia, ngaiu, ngai-yu - I, me). The Waianwonga were their north‑western neighbours, the Ngadha wonga bounded them on the west, the Wajari on the south-west, the Bardu wonga on the south-east, and on the south were the tribes of the Eastern Goldfields. 

(10)	Bates also stated that “South of Lake Mason, near Sandstone and Nan-gara, some Ngadha wonga, Badi-maia, and Ngaiawonga camped”.  
(11)	With great respect, Mr Robinson’s unfamiliarity with this tribal group was a most surprising aspect of his evidence.
(12)	In those circumstances, if it is accepted that Eva was the Wongoojee or Wongaji of Bates’ genealogies (as originally asserted by Mr Robinson) then the evidence is that Eva was not a Badimia person and did not originate from, or have rights and interests in, the claim area at sovereignty.  Alternatively, as noted by Dr Brunton, if Wongoojee or Wongaji did possess rights and interests in the claim area this would have a number of implications for the identity of the traditional occupants of the area.   In short, it would confirm that the north-east of the claim area was not (in Bates’ time at least) Badimia country.
(13)	It appears that the only definite documentary evidence relating to Eva was obtained by Tindale in 1939 at Moore River, from her daughter Rita. Tindale recorded that Eva was a deceased “fb of Mount Magnet”, and that Rita’s father was Paddy Green, a white butcher of Sandstone.  The genealogical card Tindale completed for “Eva Green” was more specific, as the location for “Place of birth” was given as “Mount Magnet WA”, and “Date of birth” was given as “period 1875-80?”.  
(14)	Eva’s descendants, Des Thompson and his sister Olive Gibson, appear to know little, if anything, about Eva. Mr Thompson stated in his witness statement that Eva was a Badimia person, whose Aboriginal name was “Wongagee”, however, when asked in cross examination what he knew about Eva, Mr Thompson gave evidence that all he knew about Eva was her name.  Mr Thompson did not know where Eva came from or where she was born.   Mr Thompson’s mother, (Mrs Thompson) (Eva’s daughter), did not tell him what group Eva belonged to, nor did she tell him where Eva’s country was.  Similarly, Ms Gibson also stated that Eva was a Badimia person but gave evidence that she knew very little about Eva as her mother never spoke about her.  According to Ms Gibson her mother “just used to say who her mother [Eva] was but never told us anything”.  Ms Gibson did not know where Eva was born and had not heard of Eva’s Aboriginal name before. 
(15)	Dr Brunton concluded that, on the basis of Tindale’s information that Eva was born at Mount Magnet sometime in the late 1870s, it was not unreasonable to infer that her parents may have had rights and interests in the claim area at sovereignty.  However, he considered it more likely than not that she was not a Badimia person.  
(16)	Importantly, unlike the bulk of the Aboriginal witnesses, Mr Thompson and Ms Gibson both gave evidence that the area they consider to be Badimia country extends east past Sandstone (and 60 kilometres north of Sandstone).  Ms Gibson considers Badimia country extends further to Agnew, Lawlers and Black Range, while Mr Thompson thinks that, although it is country their mother travelled in, it may not be Badimia country or is country that Badimia people were pushed out of by Wanmala people.  They both said that that is the particular area their family speaks for because that is where their mother’s country was.  That evidence corroborates the link Bates made between their mother’s family and “Ngaia wonga” or “Ngadha wonga” people and country.
(17)	The evidence clearly establishes that it is more likely than not that Eva Renie was descended from “Ngaiawongga” or “Ngadawongga” (as recorded by Tindale) parents who originated from the country ascribed to that group by Bates and Tindale.  With respect, the evidence of Mr Thompson and Ms Gibson that Eva Renie was a Badimia person does not rise above a bare assertion by witnesses who later agreed they did not know where she was from.
307		In reply the claimants observe:
(1)	In relation to apical ancestor Eva Renie, the State submits that Mr Robinson appeared to change his mind during cross-examination about whether Bates’ Wongaji was Eva Renie.  Once the transcript is examined regarding the cross-examination, it is clear that what was being put to Mr Robinson was whether a particular genealogy which was taken by Bates on Rottnest Island included a woman called Wongaji, who was also on the island and was from an Aboriginal group called ”Ngajawonga”.  It appears from the transcript that Mr Robinson is not equivocal about Eva Renie being Wongaji but rather whether or not the person cited on the Rottnest genealogy is the same person as Eva Renie. 
308		It is difficult, on the information provided to the Court, for the Court to be satisfied on the balance of probabilities that Eva Renie was a Badimia person.  It seems likely, however, that she had some traditional association with country in the vicinity of the claim area.  
309		As the State fairly points out in its analysis set out above, Des Thompson and Olive Gibson, the son and daughter of Rita Green (Mrs Thompson), knew little about their grandmother, Eva Renie, and their mother told them little, if anything, about her birthplace and antecedents.  To the extent that they identify country with which their mother’s family was connected, it was, as the State observes, past Sandstone to the east.  There is some reason to think, having regard to the information that Bates collected, that Eva Renie may well have been a Ngada person (as the further Bates genealogy records Rita Green as being) and not Badimia.
310		The difficulty with this sort of ethnographic assessment of “tribal” affiliations is that earlier ethnographers, such as Bates, may not have spent sufficient time in the traditional country of the people interviewed to make that judgement.  They may only have received part of the information necessary to complete a considered assessment of identity, and may as a result not have fully grasped the significance of all the information provided.  
311		There is also an additional issue in some cases, though not necessarily in this particular instance, to the effect that early ethnography may ascribe a “tribal” affiliation to a person without a full appreciation that the tribal name may not be correct, or is not a generally accepted appellation, or that if there is a name ascribed to a particular group, that group may simply be part of a larger group; and that in some cases, particularly where one tribal group is located near another tribal group, and intermarriage regularly occurs and languages are shared, more than one tribal identity may be open to a person.  Having made these comments, the evidence in the case of Eva Renie does not permit any further assessment having regard to these varying possibilities.
312		In the result, the Court is only able to speculate about Eva Renie.  As the anthropologists initially conceded, Eva Renie appears to have been a person with traditional links to country in the vicinity of the claim area.  
313		In some cases, the direct evidence of witnesses is of a detail and depth, that is, a quality, that enables the Court to reasonably infer, on the basis of the direct Aboriginal evidence and reputation in the relevant Aboriginal community, that indeed the person had a Badimia ancestry or a traditional association with the claim area.  In this instance, however, the evidence of Mr Thompson and Ms Gibson lacks the sort of detail and depth that enables the Court, on the balance of probabilities, to find that Eva Renie had a Badimia ancestry.
314		In these circumstances, the Court, on the balance of probabilities, finds that Eva Renie was not a Badimia person.
Old Julia
315		The claimants note:
(1)	Mr Robinson provided an opinion regarding apical ancestor Old Julia as being Badimia in his first and supplementary reports.  Old Julia is considered by Dr Brunton in his first report.  Old Julia was married to Paddy Green, a white man from Sandstone who was also married to Eva Renie and is Rita Green’s (Mrs Thompson’s) father.  Tindale recorded Old Julia’s children as Jack Merrick and Sarah Ashwin.  Des Thompson gave evidence that Jack Merrick was his mother, Rita’s, brother, and Mr Thompson lived with him in Mount Magnet.  Des Thompson also said that Sarah Ashwin was the sister of Rita Green and the daughter of Old Julia.  Mr Robinson stated in his first report that the claimants say Old Julia was a Badimia person and Tindale described her territory as including the eastern portion of the claim area, including Mount Magnet. 
316		The State notes and submits that:
(1)	Dr Brunton was of the view that the available evidence suggested that Old Julia did not have any particular association with, or traditional rights and interests in, the claim area. 
(2)	Mr Robinson observed in his first report that, although the claimants suggested that Old Julia was a Badimia person, research by Tindale suggested that she was not.  Further, given that Old Julia and her family had long established ties to the Eastern Goldfields, Mr Robinson stated that he “would hesitate to include her as a Badimia apical without further information about her links to the claim area”.  The genealogies which originally accompanied Mr Robinson’s first report included a statement that “The evidence suggests that Julia was not a Badimia person and neither were her offspring” however, puzzlingly, this statement did not appear in the claimants’ genealogies, as amended. 
(3)	In cross‑examination, when asked to clarify whether Old Julia was a Badimia person or not, Mr Robinson stated that he was still of the opinion that the evidence suggests that Old Julia was not a Badimia person and neither were her offspring.  
(4)	No person who was descended from Old Julia gave evidence during the proceeding.
(5)	In those circumstances, the State submits that the Court must find that Old Julia was not a Badimia person and had no traditional association with the claim area.
317		The Court, having regard to the materials referred to by both the claimants and the State, cannot be satisfied, on the balance of probabilities, that Old Julia was a person with Badimia ancestry or a traditional association with the claim area.
318		While Mr Robinson mentioned that Tindale described her territory as including the eastern portion of the claim area including Mount Magnet, he was also of the opinion that the evidence suggested that she was not a Badimia person and nor were her offspring.
319		Dr Brunton was also of the view that the available evidence suggested Old Julia did not have any particular association with the claim area.
320		In all of these circumstances, on the balance of probabilities, the Court must conclude that Old Julia was not Badimia or a person traditionally associated with the claim area.
Lizzie aka Juumbi
321		The claimants note that:
(1)	Ollie George gave evidence that Juumbi, from the Fogarty family, lived on Kirkalocka Station with him, Nugget and Dinah.  Mr George grew up on Kirkalocka Station with Juumbi and he was there when she died in the 1940s.  Gloria Fogarty gave evidence that Juumbi was also known as “Lizzy” and was her father’s mother.  Mr Robinson also analysed a genealogy taken by Bates in 1908 of a “Joombee” that is headed “Mr Broad’s not Wagga Wagga” which Mr Robinson says is a reference to Kirkalocka Station, owned by one of the Broad brothers, as  Wagga Wagga Station was owned by the other Broad brother.
(2)	It is submitted that the above evidence is more than sufficient to establish a substantial degree of ancestral connection between the claimants and the original Badimia native title holders.
322		The State notes:
(1)	Mr Robinson opined that Lizzie aka Juumbi was born around 1872 and died on Kirkalocka Station in 1944.  Correspondence from the years 1942 to 1944 from Mr Fred Broad of Kirkalocka Station to the Department of Aboriginal Affairs suggests that Lizzie was on Kirkalocka at that time.  Mr Broad requested assistance for “an old native woman here, Lizzie aged about 70 years that is living with my native Nugget and his gin Dinah, she has been here for a number of years”. 
(2)	According to the claimants’ genealogies, Lizzie had three children by a William Fogarty:  Arthur Fogarty (born circa 1894 or 1899); Banjo (born in 1900); and Elsie Fogarty (born circa 1899).  However, Figure 20 of Mr Robinson’s first report suggests that Arthur, Banjo and Elsie were half siblings with different fathers.  In the diagram Banjo is shown as the son of Beenga, Arthur as the son of William Fogarty and Elsie as the daughter of an unidentified man.  No documentary evidence is cited in support of Figure 20 and it appears at variance with both the claimants’ genealogies and the text of the report (which suggests that Arthur and Banjo were full siblings, but not, it seems, with Elsie).
(3)	Mr Robinson was of the opinion that Lizzie was possibly the woman shown as “Joombee” in a genealogy compiled by Bates in Mount Magnet on 29 October 1908.  In the diagram, which is entitled “Thooguroo, Mount Magnet dist”, she is depicted as the daughter of “Nyimmalngee” and his wife “Boorboojarra”.  Joombee is shown as being married to a man named Beenga and is depicted as having no children.  
(4)	Mr Robinson stated that the location of the Bates’ genealogy was likely to have to have been Thugaroo Spring on Kirkalocka Station, a conclusion supported by Bates’ identification of the area as “Mr Broad’s not Wagga Wagga” (the Broad family having had a long association with Kirkalocka).  Mr Robinson concluded that if the person identified by Bates is Juumbi, then it can be concluded that her parents were probably born about 20 years before her in the 1850s, or around the time first European exploration of the region was occurring.  
(5)	However, in the State’s submission (and as noted by Dr Brunton), there are a number of problems associated with Mr Robinson’s conclusions on Bates’ material.  Firstly, while Bates did complete the genealogy showing a woman named “Joombee”, this woman was not the only person with such a name listed on one of Bates’ Murchison region genealogies.  For example, under the heading “Mureree and Yooldhura”, a genealogy showed “Joombee or Dhoombee” as the partner of “Meeningoo”, and as the mother of two girls and a “half caste” named “Davy”.  Secondly, the Bates’ genealogy relied upon by Mr Robinson shows “Joombee” as having no children.  However, when Bates conducted her research in 1908, the apical ancestor Lizzie had already had three children by someone other than the husband identified by Bates. Neither this husband, nor Lizzie’s three children, were mentioned by Bates.  Thirdly, the Bates genealogy does not refer to Joombee as having an alter ego, or a different name, of Lizzie.  Rather, the only documentary evidence that would link Bates’ Joombee to Lizzie is a departmental index card for a personal file of a “Jimbie aka Lizzie of Kirkalocka”. 
(6)	In those circumstances Dr Brunton concluded, correctly in the State’s submission, that there was insufficient evidence to conclude that Bates’ Joombee was the apical ancestor Lizzie aka Juumbi.  In any event, even if Lizzie was the woman Bates recorded as Joombee, the partner of Beenga, given that the only information apart from names on the particular genealogy is section membership all this would demonstrate is that Lizzie was in the Mount Magnet district in the early 20th century, three or four decades after the first pastoral leases were being taken up.  As submitted elsewhere, both Mr Robinson and Dr Brunton agreed that, given the degree of mobility of Aboriginal people, particularly those associated with the pastoral industry, the fact that a person was resident on, or associated with, a particular station in the early 20th century does not necessarily suggest that they had a traditional connection to that area. 
(7)	In addition, evidence given by the Aboriginal witnesses who were descended from Lizzie gave yet further, different, accounts of her to those provided by Mr Robinson or supported by other documentary evidence. 
(8)	Gloria Fogarty gave evidence that Lizzie was a Badimia person but seemed to know little about her and was unable to correctly identify her own familial relationship with Lizzie.  Ms Fogarty stated (incorrectly) in her witness statement, during examination in chief and in cross‑examination that Lizzie was her father’s mother’s mother (Lizzie was actually the mother of Gloria’s father’s father’s mother).  When asked in re-examination, Ms Fogarty first stated that Lizzie was the mother of Polly Little but, after assistance from Ollie George (who was seated beside Ms Fogarty and who, during her re-examination, stated that Lizzie was Ms Fogarty’s father’s father’s mother) ultimately agreed (still incorrectly) that Lizzie was her father’s father’s mother.  In the State’s submission, an examination of Ms Fogarty’s re-examination clearly demonstrates that Ms Fogarty was confused about aspects of her genealogy and ultimately agreed with Mr George’s evidence because he was an elder “who’d know those things” and not because she was confident of her true relationship with Lizzie. 
(9)	In any event, Mr George’s evidence also contradicted Mr Robinson, the claimants’ genealogies and the documentary evidence.  Mr George was confused about the relationship between Lizzie and the current claimants.  For example, Mr George incorrectly stated that Lizzie was the grandmother of Gloria and Darryl Fogarty and the mother of Ted Fogarty (Lizzie was actually the grandmother of Ted and the great grandmother of Gloria and Darryl).  Mr George did not seem to know very much about Lizzie.  He gave evidence that she was one of the “old Fogarty ladies” who lived on Kirkalocka and had no home so she stayed with Mr George’s grandfather.  When asked in examination‑in‑chief what he could remember about Lizzie, Mr George stated only that “[s]he’s a nice old lady, used to have nice damper and … when she go to sleep I used to pinch her damper”. 
(10)	Darryl Fogarty did not refer to Lizzie (his father’s father’s mother) in his witness statement but in cross‑examination stated that while he knew Lizzie was his father’s father’s mother he did not know very much about her.  He did not know where she was born or where she was from but guessed it was Mount Magnet (but was not sure).  Mr Fogarty assumed that she was Badimia because his father’s father was Badimia and his father’s father’s father was a white person but admitted that Lizzie “was gone before we were around”. 
(11)	In the State’s submission, it has not been established whether the Lizzie spoken of by some witnesses is the same person as (one of) the people identified by Bates as Joombee or Dhoombee (and if so, which one).  In any event, it has not been established that either person was a Badimia person or had a traditional association with the claim area, nor is there sufficient evidence to establish the familial relationship between Lizzie, Bates’ Joombee or Dhoombee, and the members of the claim group.
323		In reply, the claimants contend that:
(1)	As to the evidence in relation to Lizzie aka Juumbi, there was strong evidence from the Badimia witnesses that Juumbi was an ancestor for the Fogarty family.  Again, the claimants submit that weight can and should be given to this evidence of reputation within the Fogarty family.
324		There is no doubt that Lizzie lived for many years on Kirkalocka Station, and in that regard the evidence of Ollie George is extremely helpful both as to her existence and general relationship with Nugget and Dinah, discussed earlier.  Ollie George described Lizzie as one of the “old Fogarty ladies”.
325		In that regard there also appears to be no doubt that Lizzie had three children by William Fogarty, being Arthur Fogarty – born around 1894 or 1899, Banjo – born around 1900 and Elsie – born around the same time.
326		There also appears to be no doubt that at certain material times Lizzie was also known as “Jimbie”, as the departmental index card for a personal file of “Jimbie aka Lizzie of Kirkalocka” attests.
327		Whether or not the Jimbie aka Lizzie of Kirkalocka is the same “Joombee” referred to in the data obtained by Bates at Kirkalocka in 1908, is perhaps more problematic.  The State suggests that no inferences can be confidently drawn because in the Bates’ genealogies there is more than one person that may be Juumbi and, further, to the extent that Lizzie might have been the 1908 Joombee that Bates made notes about, she is not shown as having any children, whereas plainly by that time “Jimbie aka Lizzie of Kirkalocka” had three who, as just noted, were born between about 1894 and 1900.  Thus, in 1908 the eldest child may have been about 14 and the youngest around eight years of age.
328		Nonetheless, the fact that in 1908 Bates noted a Joombee on Kirkalocka, and the clear evidence that Lizzie, also recorded later in the departmental file as “Jimbie aka Lizzie” was resident on Kirkalocka, may be considered more than coincidental.
329		The fact that Bates did not provide a European name for her Joombee is not one on which the Court places any particular significance.  The fact that Bates did not record any children for her Joombee is however a little more puzzling, especially if her Joombee was Lizzie and she had three children of about eight to 14 years at that stage.  Other Bates genealogies record children.
330		In all the circumstances, however, the Court is prepared to draw the inference that Lizzie, at material times during the 20th century, prior to her was death, was also known as Jimbie/Joombee/Juumbi.  Given that Lizzie lived for a long time on Kirkalocka, and a Joombee was recorded by Bates as being on Kirkalocka Station and from the Mount Magnet district in October 1908, a reasonable inference may be made, especially in light of the evidence of the Aboriginal witnesses, that Lizzie aka Juumbi had a traditional association with the broader claim area.  It is also reasonable to infer she and her ancestors were Badimia people as they seem to have been so regarded.  
331		The inference may not be compelling but, given the mist that time has cast over such relationships, it is reasonable to infer that Lizzie was the earlier Joombee recorded by Bates had a traditional association with the broader claim area and was Badimia by reputation.
Other apical ancestors
332		The State contends there is a further related difficulty with the claimants’ case in relation to apical ancestors, in that the group is comprised of the descendants of the 18 or so (the State suggests only 12 or 13) identified apical ancestors who have just been discussed.  The State says that even if one ignores the question as to whether or not: the 18 apical ancestors were Badimia; were from the claim area; or are in fact ancestors of claimants or witnesses, there remain further fundamental questions, such as:
(1)	Why there are only 18?
(2)	How many other Badimia people were alive at or around sovereignty (or perhaps more accurately at the turn of the 20th century, which is when the identified apicals lived)?
(3)	Were they acknowledging and observing traditional laws and customs? 
(4)	What is the status of their descendants?
333		The State makes the following submissions: 
(1)	It is most unlikely that there were only 18 Badimia people living at the relevant time.  It is true that European settlement had a devastating impact on the Aboriginal population of the region, however it seems logically inconceivable that such a large area of country would contain only a handful of Aboriginal people.  Mr Robinson was asked about this issue in cross-examination.  He speculated that there would have been more than 18 Badimia people alive at the relevant time, but was unable to estimate a number.  His evidence was that the 18 identified apical ancestors were the only ones who had descendants.  This also seems most implausible.
(2)	To be fair to Mr Robinson, his evidence was in response to a question which was probably unexpected.  In addition, he did not conduct any field work with the claimants, nor was he involved in the preparation of the Badimia application.  His evidence was that he was presented with a list of apical ancestors by the claimants’ legal representative.  Decisions about who was and was not an apical ancestor were made by the claimants’ legal representative, rather than by Mr Robinson.  The claimants’ genealogies were prepared by a research assistant at the claimants’ legal representative. 
(3)	If, as seems likely, there were many more people occupying the claim area at the same time as the 18 apical ancestors, then there has been no explanation as to why the claimants consist only of the descendants of a small subgroup of those people.  The claimants’ case is that native title is held communally by the Badimia people, but the claimants define the Badimia people as the descendants only of one or more of the 18 named apical ancestors.  If there were more than 18 Badimia people at sovereignty, then the asserted present day Badimia “society” is a subgroup of, and is not the same as, the society which occupied the claim area at sovereignty.  That is fatal to the application.  It would also mean that there were many more (perhaps many thousands of) present day descendants of Badimia people about whom there is no evidence at all.  The Court must find that the claimants have comprehensively failed to show continuity of acknowledgment and observance of traditional law and customs and of connection by the members of that large group.  This is a similar but separate problem to the “social category” versus “social group” problem discussed below.
(4)	In the alternative, if there were only 18 (or at least a very small number), or if only those 18 had any descendants, then that is very far short of the kind of critical mass of people who might be able to maintain a normative system of traditional laws and customs.  It is entirely consistent with the series of 20th century ethnographic accounts which identify that traditional life had ceased in the claim area long ago.
(5)	All of the difficulties described above are, of course, heightened or magnified by the fact that the claimants’ case in relation to the 18 apical ancestors themselves has not been made out.
334		In response to the questions raised by the State about other apical ancestors, the claimants note that:
(1)	The State submits that it is unlikely there were only 18 Badimia people living in the claim area at the relevant time.   It submits that it seems “logically inconceivable” that such a large area of country would contain only a handful of Aboriginal people.  In cross-examination, Mr Robinson stated that it was his opinion that the claim area was not highly populated at sovereignty.  Mr Robinson said that it was likely that there were more Badimia people in occupation at the time of settlement such as Old Emily, that the research had not captured all of those who identify as Badimia and that there may be others. 
(2)	It may well be that those others who, in the past, identified as Badimia, died without issue or their issue chose not to identify as Badimia.  None of that detracts from the fact that there is a strong core of people with Badimia ancestry who continue to strongly assert their Badimia identity and their connection with the land and waters within the claim area.
(3)	The State also criticises Mr Robinson for not conducting any field work with the “claimants”.  Presumably the State means the Badimia claim group.  The State’s criticism of the claimants’ genealogies is unjustified.  Mr Robinson states in his supplementary report that the genealogies were originally prepared by Dr Fleet under his direct supervision.  He cross-checked the genealogies and amended them as more information came to hand from archival research and claimant evidence.  Mr Robinson attended several claim group meetings that were arranged to discuss the genealogical research and to allow the claimants to check the accuracy of the genealogies. 
335		For the Court, the questions raised by the State, though not irrelevant, are not determinative of the present ancestry questions or the broader connection issue.  The responses provided on behalf of the claimants to those questions may or may not be valid.  The fact is, however, there are a relatively few number of apical ancestors who, today, are put forward to define the claimant group and whose identity can be proved to be Badimia and traditionally associated with the claim area.  Depending on the circumstances of any case, such a factor may be relevant to the determination of primary connection issues.  In that context, this factual issue raised by the State will be considered further below.
Summary of apical ancestor findings  
336		For the reasons given above, the Court has encountered real difficulties in concluding, on the balance of probabilities, that any more than three (counting Yilayajambin and Bilygwi as one) of the claimed apical ancestors were Badimia people or traditionally associated with the claim area at the time of sovereignty.  
337		On the findings the Court has made, only the descendants of Timothy Benjamin, Bilygwi and Yilayajambin and Lizzie aka Juumbi are identified as Badimia people.
338		These findings, taken with the Court’s earlier finding that the claimants have not established that the claim area was traditional Badimia country at sovereignty, also lead to the result that the claim should be dismissed.
339		However, the remaining key issues should also be considered.
ARE THE CLAIMED RIGHTS AND INTERESTS POSSESSED UNDER TRADITIONAL BADIMIA LAWS AND CUSTOMS?
340		In dealing with this question, a number of subsidiary questions arise:
(1)	What are the s 223(1) requirements for proving native title?
(2)	What rights and interests do the claimants presently claim to possess under their laws and customs?
(3)	Do those claimed rights and interests arise under “traditional” laws and customs?
341		The final question to which s 223 of the Act requires an answer, whether the claimants have a connection by traditional laws and customs with the claim area today, is considered separately in the connection section below.  The answer to this final question encompasses the related or overlapping question whether there has been continuity of acknowledgment and observance of those laws and customs since sovereignty.  Each of these questions also overlaps with the present question whether current laws and customs giving rise to rights and interests are “traditional”, as explained below.  
What are the s 223(1) requirements for proving native title?
342		Questions relating to the proper characterisation of laws and customs as “traditional”, as well as their continuity and change and adaptation, and the interruption of the exercise of rights and interests arising under them in the period between sovereignty and the present, produce complexities both in legal principle and in fact finding.
343		The decision of the High Court in Yorta Yorta directs the proper construction of the provisions of the NTA, particularly the definition of “native title” and “native title rights and interests” that appears in s 223(1).  As the Court recognised, however, and as discussed further below, the elucidation of the meaning or requirements of the statutory definition does not necessarily make the task of claimants, who must prove their case, or courts which must make a determination as to whether native title exists, any easier.  
344		In Yorta Yorta, the plurality (Gleeson CJ, Gummow and Hayne JJ) said, at [79], that the word “traditional” found in para (a) of the s 223(1) definition, does not mean only that which is transferred by word of mouth from generation to generation, but also reflects the fundamental nature of the native title rights and interests with which the NTA deals, as rights and interests which are “rooted in pre‑sovereignty traditional laws and customs”.
345		The plurality accepted that demonstrating the content of a traditional law and custom in any case may very well present difficult problems of proof.  But their Honours added that the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provisions.  Their Honours further noted, at [80], however, that in many cases, perhaps most, claimants will invite the Court to infer, from the evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence.  Much will, therefore, turn on what evidence has been led to support the drawing of such an inference.  Their Honours also noted, although it is not a particular issue in this case, that the provisions of the NTA may bear on the drawing of inferences.  Their Honours, at [81], indicated that, under s 82(1) NTA as it now operates, the Court is bound by the rules of evidence “except to the extent that the Court otherwise orders”.  In the present case, no orders have been made qualifying the operation of s 82(1).
346		Thus, a primary task of a court in dealing with questions of characterisation of laws and customs, continuity, adaptation and change, and interruption of the exercise of rights and interests, is to ascertain what traditional laws and customs governed the conduct of the relevant people pre‑sovereignty.  In this way, findings can be made about whether the rights and interests currently claimed are rights and interests possessed under laws and customs rooted in pre‑sovereignty laws and customs.  
347		In this proceeding, the claimants do not say that the evidence of itself directly explains what the pre‑sovereignty laws and customs of the Badimia people were, but they rely, as the plurality in Yorta Yorta said will often be the case, on the Court drawing inferences as to the pre‑sovereignty traditional laws and customs from the evidence led at trial.  The evidence upon which the claimants rely is constituted of the Aboriginal evidence, the expert anthropological evidence, and the expert historical evidence, much of the substance of which has already been referred to above in the introduction to the connection evidence.
348		In drawing inferences, it is understood that, in a proceeding such as this, like any proceeding in this Court not affected by statutory presumptions or other requirements, the Court may only draw reasonable inferences, that is to say inferences reasonably drawn from facts proved in the proceeding.  In this case, expert opinion may or may not itself constitute a reasonable inference about what the pre‑sovereignty laws and customs of the Badimia people were and also bear on the question on continuity.  As has been noted above, here the experts differ as to what to infer.
349		In relation to the impact of European settlement in the post‑sovereignty period and the extent to which pre‑sovereignty laws and customs may be permitted to adapt or change before they can no longer be considered traditional, in the NTA sense, and the effect that the interruption of the exercise of rights and interests possessed under traditional laws and customs may have, the plurality in Yorta Yorta made a number of observations that are, with respect, insightful and helpful in the resolution of these questions.
350		For example, their Honours said (at [82]-[91]):
(1)	It is important to notice that demonstrating the content of pre‑sovereignty laws may be especially difficult in cases where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement.  In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what was changed or adapted.  It is not possible to offer any “bright line test” for deciding what inferences may be drawn or when they may be drawn, anymore than it is possible to offer such a test for deciding what changes or adaptations are significant.  Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given. 
(2)	What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between sovereignty and the present, will not necessarily be fatal to a native title claim.  Yet, both change and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for a determination of native title.  The relevant criterion to be applied in deciding the significance of change to, or the adaptation of, traditional law or custom is readily stated (although its application to particular facts may well be difficult).  The key question is whether the law and custom can still be seen to be traditional law and traditional custom.  Is it a change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified? 
(3)	Interruption of use or enjoyment, however, presents more difficult questions.  First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content.  Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions.  Those statutory questions are directed to possession of the rights and 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. 
(4)	Secondly, account must no doubt be taken of the fact that both paras (a) and (b) of the definition of native title are cast in the present tense.  The questions thus presented are about present possession of rights or 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.
(5)	It is important to bear steadily in mind that the rights and interests which are said now to be possessed must be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question.  Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs.
(6)	For exactly the same reasons, acknowledgment and observance of those laws and customs must have continued “substantially uninterrupted” since sovereignty.  Were that not so, they could not properly be described as the traditional laws and customs of the peoples concerned.  They would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned.  Rather, they would be a body of laws and customs of a new society of indigenous peoples similar to, perhaps even identical with, those of an earlier and different society.
(7)	In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification “substantially” is not unimportant.  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 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 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. 
(8)	Describing the consequences of interruption in acknowledgment and observance of traditional laws and customs as “abandonment” or “expiry” of native title is apt to mislead.  “Abandonment” might be understood as suggesting that there has been some conscious decision to abandon the old ways, or to give up rights and interests in relation to the land or waters.  Demonstrating continuous acknowledgment and observance would, of course, negate any suggestion of conscious decision to abandon rights or interests.  But the inquiry does not require consideration of why, if acknowledgment and observance stopped, that happened.  That is, continuity of acknowledgment and observance is a condition for establishing native title.  If it is not demonstrated that that condition was met, examining why that is so is important only to the extent that the presence or absence of reasons might influence the fact‑finder’s decision about whether there was such an interruption.
(9)	“Expiry” may be a more neutral term than “abandonment”.  It does not invite attention to what those who held native title may have thought or intended at the time acknowledgment and observance of traditional law and custom ceased.  Even so, it is a term that may distract attention from the terms in which native title is defined.  Thus its use is unhelpful for it is the words of the NTA to which the inquiry must always return. 
351		Earlier in the judgment of the plurality, at [47], their Honours observed that the reference to rights or interests in land and waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (that is, their traditional laws and customs) “is a system that has had a continuous existence and vitality since sovereignty”.  Their Honours added that, if that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist; and any later attempts to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which the rights and interests must spring if they are to fall within the definition of native title.  
352		This dicta should of course be read in the context in which it appears, and that context is that their Honours first provided the broad reasoning relating to the proper construction of the expression “native title” in the NTA, and then, later, dealt expressly with questions of adaptation, change and interruption to the exercise of traditional rights and interests as a consequence of the impact of European settlement.
353		It follows that the reference in [47] to the characteristic of a normative system as one which has maintained “vitality” since sovereignty, should not be read as some super-added prescription for proving native title.  It is not, for example, a requirement of s 223 NTA that a society be shown to be “vital”.  Rather, their Honours should reasonably be understood to be making the point that the “normative system” should exhibit vitality, in the sense that it has “the power of continued existence” or may be described as “having life” (see respectively definitions of “vitality” and “vital” in the Macquarie Dictionary, (4th ed, 2005).  “Vitality” is an impressionistic expression obviously employed by their Honours to emphasise the close relationship between the claimant group and their laws and customs that needs to be demonstrated to prove the continued existence of native title, to which their Honours referred at [49].  The point ultimately made by the plurality, both earlier in their reasons and again at [89], is that it is necessary to demonstrate that the normative system that existed at sovereignty has continued to exist at all material times since then and gives rise to the rights and interests claimed.
354		The dicta of the plurality, and indeed the terms of the definition of native title and native title rights and interests in s 223(1) NTA, contemplate that the rights and interests that may be determined to exist, whether they are communal, group or individual rights and interests, are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant “Aboriginal peoples” or “Torres Strait Islanders”.  Even individual rights, if claimed, must be sustained by the traditional laws and customs of those peoples or Islanders.  In other words, a claimed individual right to do something will not be capable of recognition as a native title right or interest unless it can be shown to arise under the traditional laws and customs of an identified peoples or Islanders: thus the jurisprudential concept, explained by the plurality in Yorta Yorta, that there can be no relevant normative system sustaining rights and interests unless some society or community is proved by the evidence.  
355		The point is emphasised by the plurality at [49] and footnote 94, where their Honours said they used the word “society” in this regard, rather than “community”, to emphasise the close relationship between the identification of the group and the identification of the laws and customs of that group.  Thus, the plurality said (in a much cited, conclusory sentence), the 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”.  
356		All of this does not mean that the “society” must necessarily take on some particular external appearance; for example, the look of a society with which the British sovereign and its agents at sovereignty would have been familiar from their experiences in Britain, or elsewhere in their Empire; or what 20th or 21st century, non-indigenous Australians might popularly think an Aboriginal society should look like.  The concept of society and community here used by their Honours is, as explained, a jurisprudential concept.  The term “society” is employed as a convenient way of describing the type of body of Aboriginal peoples or Torres Strait Islanders which must be proved by evidence to exist, if native title is to be determined to exist.  
357		In that regard, very many decided cases under the NTA now show how a number of Aboriginal peoples or Torres Strait Islanders with varying rights and interests in relation to land or waters can be seen to constitute the type of body that comprises a relevant “society” by virtue of laws acknowledged and customs observed.  See, for example, Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1 at [168]‑[170], [456] (Finn J).
358		In some instances, the continuing “vitality” of a group who have remained relatively unaffected, in relation to their law and customary practices, by the European settlement of Australia may be obvious, even to non‑indigenous outsiders without any ethnographic training or experience.  It may be that within that particular group the classical hallmarks of a pre‑sovereignty group, as reflected in the anthropological evidence, are still extant.  Depending on what part of Australia the group is from, members of the group may still speak their own distinctive Aboriginal language as a first language.  They may observe a range of traditional rules concerning birth, initiation, marriage and death.  They may have a section and subsection system or moiety system and kinship system that is on display for all to see, and conduct ceremonies involving many people.  That same apparently classical group may also still depend, particularly among the members of the upper generations, on animals hunted, fish and birds caught, and foods gathered on their traditional country.  But, depending on the evidence led in any case, the absence of a range of indicators of such a classical Aboriginal “society” does not necessarily mean that there is not today a body of persons united by their acknowledgement of traditional laws and observance of traditional customs under which they possess rights and interests in relation to their traditional country.  A group of claimants, for example, may be extremely cross‑cultural in the 21st century, that is to say, have their feet firmly planted in a broader Australian post‑sovereignty society and live a contemporary life outside a claim area, and still maintain a connection to their traditional country in a way that meets the requirements of the s 223 definition of native title.
359		All that may be considered perhaps a long way of saying that merely because claimants may no longer converse in a distinctive Aboriginal language, conduct rites and ceremonies or live a bush life on country, for example, does not mean they cannot prove native title under the NTA.
360		It follows that the loss of many of the attributes of an inferred classical Aboriginal society will not necessarily carry with it the consequence that a claimant application must fail.  The inquiry required under native title law under the NTA, as Yorta Yorta demonstrates, is more nuanced than that.  Rather, it is driven by the need to make a factual inquiry into whether the requirements of s 223 have been met.
361		Recently, in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9 Mansfield J, at [70], made a similar point when his Honour observed that:
The focus in Yorta Yorta on the word ‘society’ can give the impression that some inquiry, separate from the above inquiry into traditional laws and customs, must be conducted in order to establish whether a ‘society’ exists.  Jagot J in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [469] observed that ‘for the purposes of the [NT Act], it is the continued acknowledgement and observance of pre-sovereignty laws and customs that enables it to be said that the relevant society itself has continued.’ That was not intended to indicate that the society which presently exists is a continuation of the society which existed pre‑sovereignty.

362		That is not to say, however, that the loss, by the current society, of cultural attributes that may be inferred to have been a feature of sovereignty society may not raise the question whether a claimant group has been so impacted by European settlement since sovereignty that, when closely analysed in terms of s 223, the rights and interests the group currently claims to possess are, in effect, “new” rights and interests under laws and customs which are not rooted in sovereignty laws and customs. 
What rights and interests do the claimants claim to possess under their laws and customs? 
363		The rights and interests claimed to be possessed by the claimants at the conclusion of the hearing of the proceeding are those set out in the claimants’ SFIC.  
364		Those rights and interests are expressed differently from those claimed in the claimants’ application.  
365		The State submits that the Form 1 delineation of rights and interests should be preferred to that set out in the claimants’ SFIC.  
366		In the circumstances of this case, the Court considers it is appropriate to proceed on the basis that the rights and interests that the claimants say they are possessed of are those expressed in the SFIC.  The SFIC has served to make plain the claimants’ pleading or case in that regard at all relevant times at and leading to the hearing of the proceeding.
367		Summarised, the rights and interests thus claimed are:
·	to occupy and use the country and resources;
·	to take flora, fauna, resources and to hunt and gather;
·	to take soil, sand, stone, flint, clay, gravel and/or ochre;
·	to manufacture traditional items; 
·	to trade in resources;
·	to visit, care for and conserve places and objects, and conduct cultural activities and ceremonies; 
·	to make decisions and give permission; and
·	a claim to exclusive possession of country is also made.
Do those claimed rights and interests arise under “traditional” laws and customs?
Claimants’ primary submissions 
368		The claimants note the anthropologists advanced the following opinions:
(1)	Mr Robinson stated that contemporary “Badimia” local organisation has two characteristics: rights to the whole of Badimia country; and special attachment and responsibility for parts of the whole area for largely historical reasons.  In relation to rights over the whole, there is evidence like that of Roderick Hedlam who stated that Badimia people “have got the right to be anywhere in this country” and do not require permission. He believed, however, that elders should have a greater say about some places. 
(2)	It was Mr Robinson’s opinion that the claimants do not have a structured system of estates, despite what Kingsford said about this topic in the 1980s, and have rights in land which exist across the whole of Badimia country.  If there had been a clan-based estate system at sovereignty, and he doubted there was, he considered that the Badimia people’s move to a more broadly based system can be regarded as an adaptation of the original system, as it is still based on the principle of descent and attachment to land by all the members of what may be seen as a Badimia cognatic group. 
(3)	In oral evidence Mr Robinson stated that in the claim area there are:
geographical associations of particular lineages and family groups, who have by and large resided together in a broad area and who have taken on responsibility for, and [been] recognised to have, responsibility over particular regions. And I think that if the present arrangement of people dividing roughly north south into two sets of surname groups has a location in the traditional past, then I think it may be to that kind of arrangement rather than a … coalition of estate groups.

(4)	Mr Robinson stated that social organisation in the Murchison area more generally is unique as it lies between the moiety zone of the South West and the more strictly defined local estate groups of the Pilbara and Gascoyne, and the much more open-ended system of the Western Desert on the western side. 
(5)	Mr Robinson observed in his first report, “that kinship remains the articulating force of Badimia society”.  Mr Robinson noted that the witnesses described their relationships through kinship terms, that behavioural expectations are dictated by kinship obligations and in Mr Robinson’s supplementary report, that all people “within the sphere of social interaction” are regarded as kin regardless of biological connection. 
(6)	Dr Brunton stated that he did not agree with Mr Robinson’s speculation that there would have been little change in traditional society in the Badimia region from 1829 and the date of European settlement in the region. Dr Brunton stated that changes between the date of sovereignty and the first reasonably detailed accounts of Aboriginal people in the claim area and its vicinity may have been more substantial than Mr Robinson recognised, particularly regarding the identity of the people present in the area. 
(7)	Dr Brunton considered that there is contemporary evidence of claimants having localised attachments.  Dr Brunton’s concern was whether these attachments are a form of continuous adaptation of the traditional system or attachments garnered through historical circumstances of birth on pastoral stations or association with particular localities. 
(8)	In his oral evidence Dr Brunton stated that although the ethnography was slender it suggests that a section system was in existence and that it was not recently introduced at the time of sovereignty, as Mr Robinson believed. 
(9)	Dr Brunton stated Mr Robinson’s doubts about the identity of the apical ancestors and the changing nature of the occupation of the claim area as recorded by observers over time is further evidence regarding succession having taken place by the “four different tribes” he considered were in occupation at sovereignty. 
369		As to the extent of the contemporary Badimia social organisation and how it is defined, the claimants submit, based on the expert anthropological evidence, that:
(1)	The native title claim group must be the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprised in the claim.  These requirements lead to the conclusion that for the purposes of the NTA, it is the claim group which must determine its own composition.  The test is community acceptance. 
(2)	Mr Robinson discussed identity and group membership of the Badimia society, in his first and supplementary reports.  The evidence is that to be a member of Badimia society a person must have a parent who is Badimia.  A person does not become Badimia simply by being born or by living on Badimia country.
(3)	The situation with adoption is more complex but, nevertheless, Mr Robinson considered that individuals may be adopted into a Badimia family.   It can depend on the circumstances of each child.  For example, Joan Martin had approached the Badimia elders regarding her adopted children’s acceptance as Badimia people and they agreed.   Mr Robinson cited Dr Fleet as stating that adoption may give a person rights to Badimia country, such as living, hunting and camping, but not the right to be recognised as having responsibility for an area.  Mr Robinson stated that it is the same for non-Badimia spouses who may obtain “contingent rights”. 
(4)	Mr Robinson stated that the Badimia descendants of apical ancestors can be split into two categories as follows:
(a)	a social category; and
(b)	a social group.   
(5)	Every person who can trace descent from one of the claimed Badimia apical ancestors is a member of the Badimia social category.   The members of the Badimia social category have a latent right to be part of the Badimia social group or Badimia society by activating their rights by regular interaction with other members of the Badimia social group. Members of Badimia society, as was the case with other Aboriginal groups, traditionally would marry out of the group and live elsewhere and although their descendants would be members of the Badimia social category, they would no longer be part of the Badimia social group or society, with rights to speak for country. 
(6)	All the members of the Badimia social group subscribe to the same body of beliefs, culture, traditions and rules of conduct. The Badimia social group members have responsibilities and rights in relation to Badimia country.   It is the Badimia social group, and not the Badimia social category, who comprise the “society” or body of people who are united in and by their acknowledgment and observance of Badimia laws and customs. 
(7)	Whether someone belongs to the Badimia social group, that is, the Badimia “society”, will depend very much on their life circumstances. If a person who is descended from a Badimia ancestor chooses not to have anything to do with other Badimia people or explore their cultural roots they will not have responsibilities and rights in relation to Badimia country. 
(8)	Mr Robinson stated that there is a core group of principal Badimia families usually defined by surnames that contain a set of individuals that have remained in physical contact with the Badimia claim area and have cultural contact with other Badimia people. 
(9)	Mr Robinson stated there is a smaller core of Badimia people, than those descended from the apical ancestors, who have been in touch with that country over several generations.   In his oral evidence, Mr Robinson cited the George family as an example of a family maintained connection to the claim area.  Mr Robinson said that some members of that core group have remained and others have moved away temporarily and returned later.  Those that remain in the Badimia social category have moved away and do not have the same rights as the core social group.
(10)	Those people included in the core social group can include Badimia ancestors’ descendants who live in the claim area, or close by in towns like Dalwallinu, Wubin, or Perth, if they regularly maintain their connection to Badimia country. 
(11)	Dr Brunton discussed Badimia identity in his first and supplementary reports.  Dr Brunton stated that he considered that it was likely that the basis of membership in the four tribes he considered were occupying the claim area at sovereignty was patrilineal. Dr Brunton also stated there may have been other criteria for membership such as matrifiliation or birth on country. 
(12)	In Dr Brunton’s supplementary report he outlined his serious concerns regarding the diversity of views expressed about Badimia group membership and how the definition of the groups may have changed over time.  These concerns relate to data regarding patrilineal descent or cognitive descent.  Dr Brunton implied that the beliefs have recently been changed or are European in origin.
370		The claimants contend that: 
(1)	It can be seen from the diversity of views listed in Dr Brunton’s supplementary report that many of Dr Brunton’s views do not relate to documents that have been tendered as evidence in the proceedings. The Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 at [90] noted that there were differences amongst the claimants in their understanding of the precise content of the rules under which rights and interests in land were acquired. 
(2)	In both of his reports Dr Brunton ignored the evidence of all of the Aboriginal witnesses who consistently stated in their evidence that to be Badimia a person must have a parent who is Badimia and that person must visit Badimia country and socialise with Badimia people. 
371		The claimants further note evidence of claimant witnesses concerning other laws and customs which they contend have been practiced by Badimia people since prior to sovereignty, and so are “traditional”, and give rise to native title rights and interests, including:
·	religious practices;
·	spirit beings;
·	traditional enforcement;
·	initiatory rites;
·	country rites;
·	cultural landscape;
·	creation stories;
·	localised knowledge of country; and
·	a hunter/gatherer economy.
372		As to spiritual beliefs, the claimants rely on the following evidence:
(1)	The Badimia believe that the claim area is imbued with spiritual essence and the land is spiritually rich and full of religious meaning. 
(2)	A belief in a mythological snake named the Bimara lies at the heart of Badimia religious thinking. Mr Robinson stated that it forms part of the Badimia beliefs on three planes: a world-creative power; a provider of resources; and as a protector of the physical and spiritual health of the land. 
(3)	Mr Robinson agreed with Kingsford that the Bimara reinforces the “linkage between ‘society’ and ‘country’”.  The Bimara acts as a connecting force in Badimia society, representing the creative powers of the Dreaming and, in Badimia terms, providing a physical link between religious beliefs and the land. 
(4)	Beverly Slater stated that the Bimara had a role in creating the country.  She said she understood that this occurred when the land “was soft” and the Bimara came out of Warrdagga and “formed the country”.  Darryl Fogarty also stated that the Bimara was more or less the creator.  Dr Brunton agreed that the time of creation in the claim area is known as the time when the earth (or rock) “was soft”. 
(5)	Mr Robinson stated that the Bimara is regarded as a major provider of water as well as a creator of the landscape.  Water associated with the Bimara is believed to be that which exists in permanent pools, soaks or underground water.  It is the major provider of life in the land. If the Bimara lives in and provides permanent water, then the Badimia believe that the obverse is true, that where there is permanent water, that is proof of the presence of the Bimara. This belief is passed down as part of Badimia oral traditions. 
(6)	Ollie George and Frank Walsh Snr (and others) referred to the Badimia practice of throwing sand into the water to announce their presence at a permanent water source.  Mr Robinson also stated that while the Bimara is a powerful creative force and provider, it is also a protector of the land and important sites.  Roderick Hedlam said the Bimara should not be disturbed or it will remove the water from the water source. Mr Hedlam believes in the Bimara because the old people believed in it.  Ollie George stated that if mining occurred where there was a Bimara “then he [the Bimara] wouldn’t stay there and the water would dry up” if the person who disturbed the Bimara was Aboriginal then “The Bimara spirit could also make him sick”.  Mr George also stated that the Badimia would want to punish any person who “wrecked a spring”.  The Bimara is a provider but is also seen as a dangerous being, especially if aroused. 
(7)	Des Thompson and Olive Gibson gave evidence that the Bimara travels from the desert along a certain route and can also be present in any permanent water hole.   The Badimia have taken steps to prevent gypsum mining on Lake Moore in order to protect this important Bimara site. 
(8)	In his oral evidence, Dr Brunton accepted that belief in the creative power of the Bimara and in the continuing presence of the Bimara in the land represents a pre‑sovereignty belief.   He agreed that Bates had written about the Bimara in this region. 
373		As to spirit beings, the claimants rely on the following evidence:
(1)	Badimia people believe that the physical world is not a passive, inanimate substance, but a living entity imbued with spiritual meaning and capable of both assisting and responding. The Bimara and spirit beings mediate between the natural and human worlds and, provided they behave in culturally appropriate ways, humans can use their powers to control and benefit from the natural world.  This system of beliefs is at the core of the laws and customs that regulate rights in land.   Dr Brunton accepted that there was widespread evidence from the Badimia people of their belief that Badimia country is imbued with the presence of ancestral and other spirits. 
(2)	Mr Robinson reported that there are other beings, which are thought to inhabit Badimia land, some benevolent, some malevolent, variously helpful or harmful to humans. 
(3)	Badimia people believe that ancestral spirits are present in the landscape.  Deceased relatives are thought to still have a spiritual presence in the world where they watch over and visit kin.  The Badimia speak of spirit beings called the mundungu which may be thought of as the spirits of recently deceased persons, contrasted with gurun, the spirit of a living person. Mr Robinson speculated that the Badimia’s absence of discussion regarding mundungu associations with initiation sequences, songs and mabarn powers could be a consequence of their reluctance to speak of ritual matters or mabarn.  Mabarn men are thought to be able to turn into mundungu.  A mundungu has dual benefic-malefic aspects and is also linked to the Bimara.   Roderick Hedlam said that “moondongs” (mundungu) are like a devil spirit, that they are disturbed spirits and he suggested that the mining activity in a now former mining town may have disturbed the mundungu and caused them to reside there permanently.  In Mr Robinson’s experience, Aboriginal people often interpret the effects of European activity such as mining within the context of a traditional belief system and, as this example illustrates, such beliefs remain a dynamic element of present Badimia thinking.  Leah Bell stated mundungu are evil spirits who torment people.  Darryl Fogarty stated that the mundong (mundungu) was “the devil” and that it was “just another spirit or spiritual thing”. 
(4)	Bates wrote that the people of this region had a belief in ancestral spirits or ghosts which they called “moondung”.   Dr Brunton accepted that the widespread belief amongst the Badimia witnesses in the existence of mundungu is a pre‑sovereignty belief.   Furthermore, those beliefs give rise to certain consequences in terms of how people behave on country. 
(5)	Badimia people believe in wurdaji or murdilygurrangu beings which Mr Robinson described as “little hairy men”, who inhabit the landscape and who are potentially harmful to humans. They have been referred to as “little men, little people”, “dwarfs”, or “little hairy men” who inhabit parts of the country like hills, breakaways and caves.  They protect the Bimara, as well as guarding significant sites like Kunturu. 
(6)	Badimia people accept wurdaji or murdilygurrangu as a part of their daily lives, Ollie George stated “They might come round and frighten you, but they won’t hurt you. They could be around here, looking at us now”.  Beverly Slater believes that they “keep you away from places, where you shouldn’t go”.  If you do no wrong, they do not harm you.  She, like other Badimia people, has had a personal experience with wurdaji.  Coral Brockman stated that there was “nothing to be scared of because wurdaji look after you when you are out there [on country]”.  Gloria Fogarty recounted several instances of encounters with wurdaji and other spirit beings, including one where she attributed her sister’s recovery from illness to their actions. 
(7)	Dr Brunton accepted that the widespread belief in wurdaji is a pre-sovereignty belief and as with Badimia beliefs about other spirits present in the countryside, it has certain consequences in terms of how people behave on country. 
(8)	Badimia society also contains a set of beliefs about magical properties and people with special magical or spiritually powerful abilities.  It is believed that these properties, or people, can be used by human agents for their own purposes.   The Badimia people have a concept of mabarn that may refer variously to a special power, an object or a person.  Ollie George gave evidence that the mabarn is, “a thing in the stomach, very strong, can make you sick or make you go mad or anything like that” and that they can protect you from danger.  Leah Bell stated that they can “sing” people by getting a strand of hair to cast a spell on a person, and they can help cure people of ailments.  Again, Dr Brunton accepted that these represent pre-sovereignty beliefs. 
(9)	The jinagabi are human beings with special powers. A jinagabi is described as a spirit person, invariably a man, who is on a mission of punishment to avenge a wrong.   According to Roderick Hedlam, his mother and aunts were “always” talking about featherfoots, or jinagabi.  He said they can enter camps without detection and use a kangaroo bone to kill a person through their shoulder blade down to their heart. 
(10)	Mr Robinson stated that people are reluctant to talk about matters to do with jinagabi or mabarn as it is believed that this could invoke trouble.  It was Mr Robinson’s view that the evidence about jinagabi supports the existence of a continuing belief among the Badimia about the presence of a spiritual world whose powers can be harnessed by certain humans for their own purposes.  Fear of jinagabi is used as a device to maintain order and uphold laws and customs as well as emphasising the cultural rectitude of Badimia people. 
(11)	Dr Brunton said that the belief in jinagabi is clearly a pre-sovereignty belief although he thought that it may be Western Desert in origin. 
374		As to traditional enforcement the claimants rely on the following evidence:
(1)	Evidence supporting the view that direct action to punish transgressors is not always needed as Badimia country contains spiritual forces that can protect it from harm and bring misfortune to those people who do not follow the rules in accessing and using it.  Forces that are contained in beings like the Bimara and other spiritual entities like the mundungu and wurdaji serve to control human activity.  It is the Badimia people’s responsibility to ensure that these forces themselves are maintained and appeased.  The right to approach these forces is a Badimia one and an important component of their relationship with their country. 
(2)	Darryl Fogarty’s evidence, for example, that he cannot kill someone to enforce his rights. The implication is that this sanction might have been available to him in the past but may not be acceptable in the contemporary setting.  He goes on to say, however, that he would “get wild” at transgressors and he and his family “would do something” where, for instance, others were to “muck up our good springs or paint on rocks and damage things”.  Traditional punishment might still involve physical measures including “flogging” of wrongdoers with flogging sticks named coondies. 
(3)	Darryl Fogarty’s belief in spiritual punishment. He gave evidence that he could be spiritually punished by people if he does not protect Lake Moore. Neighbouring groups such as the Wanmala, Wongai or Noongar people may blame him for not protecting the site. He says that he could get sick, have an accident or some other kind of retribution may be visited on him. The wurdaji are the custodians of Lake Moore and it is possible that they could make him or his family sick if he does not protect the site. 
375		As to initiatory rites the claimants rely on the following evidence:
(1)	While none of the Badimia male witnesses have been initiated, there is evidence that Badimia men who wish to be initiated now travel to other centres like Wiluna and have also played active roles in the ceremonies.  Roderick Hedlam was prevented from going through initiation rituals as a consequence of his work commitments although his two brothers went through the Law.  However, Ollie George gave evidence that it is knowledge of country and mythological traditions rather than initiation rituals that contributes to status as far as rights in land were concerned.  Darryl Fogarty implied that it was descent and knowledge about Badimia country that was at the core of rights and initiation was not a criterion. 
(2)	Two initiated men from neighbouring groups (Lance Mongoo, a Wajarri man and Mr Darren Farmer, a Martu Western Desert man) gave evidence in support of the Badimia claim. Both men were adamant that they required Badimia permission to access and use Badimia country.  Dr Brunton agreed that those two initiated men clearly accepted that it was not necessary for a Badimia man to have gone through the Law to have rights and interests in Badimia country. 
(3)	Dr Brunton accepted that there was a considerable body of evidence from the Badimia witnesses that there was a rule or law which was to the effect that only initiated men could safely enter upon former ceremonial grounds.   Women or uninitiated men who broke that rule or law would be punished and that punishment would most likely come from the spirits within the former ceremonial grounds.   That rule and those beliefs are clearly pre-sovereignty in origin.   That is, although those former ceremonial grounds may no longer be in use, there are still rules that govern which people may or may not access those areas.
376		As to country rites, the claimants rely on the following evidence:
(1)	Evidence was presented regarding what Mr Robinson termed “country rites”.  Mr Robinson stated that country rites are rituals involving behaviour on country and what are considered to be proper modes of comportment while travelling through one’s own or other people’s land.  These rites have to do with propitiating spirits, ensuring good fortune and protecting land and humans from harm.   The most pervasive of these rites is associated with approaching water sources. It is expected that a person will announce his or her presence by throwing sand and calling out. In this way the Bimara associated with the place will know who the person is and that they are from Badimia country. 
(2)	Many witnesses gave evidence regarding rituals involving water sources. Darryl Fogarty gave evidence that when he approaches a permanent water source where the Bimara is located he must throw a rock or sand in to alert the Bimara to his presence, otherwise the Bimara can become angry and he may become sick.  Percy Lawson stated that it was through throwing the sand that the Bimara could smell you and recognise your scent. 
(3)	The Aboriginal witnesses emphasised the importance of showing the Bimara respect through the performance of the rituals. These rituals also include the practical aspect of cleaning and maintaining the rockholes. 
(4)	Evidence was also presented that the younger generation are being taught the performance of these rituals as they were taught to the Aboriginal witnesses by the older generations. 
377		As to cultural landscapes, the claimants rely on the following evidence:
(1)	Badimia cultural beliefs have been attached to the physical environment to shape a uniquely Badimia landscape.  Evidence has been presented about significant sites, and how information about the landscape has been received and passed on by the witnesses.  This information has included knowledge about the distribution of resources, methods of food preparation and the location and significance of sites which can be both religious and utilitarian. 
(2)	Two of the mythologically significant sites in the claim area, Kunturu and Warrdagga, have been given special statutory protection because of their heritage values.  In addition to this, Warrdagga has specifically been given protection for its mythological value. 
(3)	The site called Kunturu, on Lake Moore, is a complex of features on and near the bed of the extensive salt lake. The lake is best known publicly for the serpentine stone arrangement, but it also consists of a number of other features including fresh water springs and mythological sites.  As is the case with many other sites, general knowledge about the site appears to be widespread in the Badimia community but some individuals have more information than others. It was Mr Robinson’s opinion that the uneven spread of knowledge about sites like Kunturu reflects variations in cultural status due to gender and seniority which is a feature of traditional Aboriginal societies. 
(4)	Darryl Fogarty and Leah Bell both gave evidence about how they were taught about Kunturu.  Darryl Fogarty went on to say that “It’s one of the main areas on Lake Moore where the Bimara lives, his spirit – there’s a pathway way across there, made it Dreaming trail for trading”. 
(5)	The witnesses presented evidence that Warrdagga includes a large camping ground for the Badimia, a birthing place for women, and a cave that is a Men’s Law business cave. Darryl Fogarty went on to say that the Bimara made a sacred cave at Warrdagga “when the earth was soft”, and he said the Bimara also made features like the soak and left his tracks on the rock.   Darryl Fogarty also links Warrdagga to Kunturu, stating that the Bimara that created the site’s features left its tracks there when travelling to Lake Moore. 
(6)	Coral Brockman gave evidence that her mother took her to a women’s area at Warrdagga, showing her where she could go and where was forbidden.  Leah Bell was taught about Warrdagga and warned to not go to the mens’ area.  Ms Ashley Bell is now the custodian of Warrdagga, he is actively involved in protecting the site. 
(7)	The Badimia witnesses also have knowledge of increase sites, law grounds, and many other culturally significant sites in the claim area. 
378		As to creation stories, the claimants rely on the following evidence:
(1)	The Badimia’s knowledge and beliefs in relation to Dreaming stories, and the sites within the narratives, across the claim area. These Dreaming stories include the creation of many sites by mythological creatures.  Narratives involve the giant Bimara snake, kangaroos, echidna, eagle, white cockatoos and mushrooms. 
(2)	Darryl Fogarty’s evidence of a complex Dreaming story involving the Bimara that travels all over Badimia country creating sites and protecting water sources.   He also gave evidence about the caterpillar Dreaming as told to him by Mr P George before he passed away.  Many of the Aboriginal witnesses gave evidence about the kangaroo Dreaming that formed the hills that lay on the west of the highway when travelling from south of Paynes Find to Cue.  The kangaroo was speared in an area south of the claim area and it hopped while bleeding from its injury creating the Canning Hills and others hills north toward Cue in the claim area.  The red ochre that appears in the hills is the kangaroo’s blood. When the kangaroo finally died the blood from its body created the Wilgie Mia ochre mine in Wajarri country.  The Wilgie Mia ochre has traditionally been utilised by Aboriginal groups including the Badimia.
(3)	Percy Lawson’s evidence regarding a kangaroo Dreaming story that traverses the claim area from south to west along the Yalgoo‑Ninghan Road from Mongers Lake to Yalgoo. Yalgoo is named after the blood of the kangaroo. Yalgoo means blood in Badimia language.  Mr Lawson said that if you look at the site where the kangaroo finished up, at Wardjangarra (a site at Yalgoo), you can see the kangaroo in the landscape. 
(4)	Ollie George’s evidence about the white cockatoo quartz hill on Kirkalocka Station that is a site created in the Dreaming story of the white cockatoo that travels from south of the claim area to Kirkalocka Station near the north of the claim area. 
(5)	Leah Bell’s and other witnesses’ evidence about the eagle Dreaming story that centres around Warriedar Hill in the west of the claim area.  The eagle goes to rest at the hill when it cannot produce offspring.  The hill is named after the eagle as “warredah” means eagle in Badimia language. 
(6)	Beverly Slater’s evidence about the creation story of Ninghan Jill (Mount Singleton) on Ninghan Station, in the south of the claim area. The baby echidna got lost and could not find its mother.  The baby echidna cried for his mother and in the process it became larger and larger.  The two springs in the sides of the hill represent where the tears are flowing of the lost echidna. 
(7)	Many Aboriginal witnesses’ evidence about the golden mushroom that is located near the north-east side of Lake Moore, but its exact location is mysterious.   Des Thompson and Ollie George also gave evidence about the site at Wingangu, in the north-east of the claim area, that is a landing place for the Seven Sisters as they undertake their travels. 
(8)	Dr Brunton accepted that the Badimia beliefs about Dreaming tracks and Dreaming sites are pre-sovereignty beliefs and that those beliefs have certain consequences in terms of how people should behave on or should use country.   He also accepted that there was a widespread body of evidence from the Badimia that they had to protect Dreaming tracks and places from physical harm and this is a belief that has its origins in pre-sovereignty law and custom. 
379		As to localised knowledge of country, the claimants rely on the following evidence:
(1)	Badimia people have a general right of access and to speak for all Badimia land in the claim area. Certain families or surname groups have particular responsibility for certain areas.  Des Thompson has an association with the east portion of the Badimia claim area.  Leah Bell, Ashley Bell, Beverly Slater, Coral Brockman and Darryl Fogarty all have an association with the southern parts of the claim area including Ninghan Station, Goodingnow Station, Warrdagga and Lake Moore.  Percy Lawson has an association with the south‑west.  Ollie George, Frank Walsh Snr, Frank Walsh Jnr, Alan Walsh and Ron Bandy, have an association with the northern portion of the claim area.
380		As to hunter/gatherer economy, the claimants rely on the following evidence:
(1)	Badimia people have identified a substantial range of bush resources that they utilise. It is clear from the evidence that Badimia people utilise these resources on a regular basis.  Dr Brunton also agrees “that many Badimia people have continued to camp, hunt and forage in the [claim] area and its neighbourhood”. 
(2)	Bimba is taken from the “sugar brother” tree and is soaked before consumption. It can also occur on other kinds of tree named manarn and mangarda. It is highly prized.  Several Badimia witnesses gave evidence of collecting bimba.  Frank Walsh Snr stated that bimba is available after a big rain and is a “toffee looking tree sap”.  Ollie George also gave evidence about the nature of bimba and where it could be obtained. 
(3)	Darryl Fogarty described gagurla (cogla) as a bush or desert banana which you can eat off the tree when they are green, cook in the ashes or boil when they are older.  Roderick Hedlam said he took his children out looking for coglas.  Frank Walsh Snr said cogla were red berries that grow around Christmas time and they taste like a bitter pear or a sour apple.  Ollie George prefers the young coglas because they are nice and soft. 
(4)	Darryl Fogarty said that when he was a child he used to collect the jurlingardi (cogla bean) that are bean-like fruits.  Ollie George said that cogla beans could be eaten raw or cooked, and were something like little carrots and thin like a pencil. 
(5)	Coral Brockman stated that she gathers gurara (karara) seeds.   According to Mr R Little, the plant provides three products: the seeds of the plant itself, bardi grubs that live in the tree and wood for making fighting clubs and boomerangs. 
(6)	Both kangaroos and wallabies are hunted for food across Badimia country.  Nowadays, they are hunted with a rifle and country is accessed by car or four wheel drive vehicle.  Leah Bell gave evidence that both red kangaroos (marlu) and hill kangaroos (bigarda) are found at Ninghan Station. 
(7)	Emus and emu eggs are also hunted and regarded as prized food.  Badimia people say that you can tell when the emus are laying because of the position of the stars in the Milky Way. 
(8)	Dr Brunton stated that he agrees that many Badimia people have continued to camp, hunt and forage in the claim area and its neighbourhood, either during the course of pastoral work, prospecting or for recreation but that there has been “a very considerable attenuation in regards to the range of resources that are used, as well as in the time spent on hunting and foraging”. 
381		Very much by way of summary, the claimants submit that:
(1)	As to the legal concept of a “society” and its use as a conceptual tool in the application of the definition of “native title”, it is important to note that this does not require that there be complete uniformity in the laws and customs which are acknowledged and observed.  It is not necessary that no other Aboriginal group has the same or similar laws and customs. In Akiba, Finn J stated, at [168]-[169], that he did not take the High Court’s decision in Yorta Yorta to be suggesting that the defining characteristics of a particular society and of its laws and customs may not admit of considerable diversity in the groups constituting the society and of differential application of, and local differences in, the laws and customs, that relate to such groups. 
(2)	In The State of Western Australia v Sebastian [2008] FCAFC 65; (2008) 173 FCR 1 the Full Court said, at [84], that the existence of extensive commonalities and connections between different groups (in that case the neighbouring Djugan and Yawaru) may be sufficient for a trial judge to conclude that the groups observe a common normative system and hence form a single society.  There is no requirement that the groups observe “all the same traditions and customs” for them to constitute a single society.  Furthermore, there is no requirement that each member of the society has precisely the same knowledge of the laws and customs or that each member fully comprehends in precisely the same way as each other member, how those laws and customs operate.
(3)	In Sampi v State of Western Australia [2005] FCA 777, French J concluded (at [1044]‑[1045]) that the Bardi people and the neighbouring Jawi people could not be considered to have formed a single society at sovereignty.  In arriving at that conclusion, his Honour relied upon the fact that the two groups occupied, for the most part, different territories, one mainland, the other archipelagic, spoke different languages (or dialects) and were recognised by early ethnographers as having distinct territories.   In arriving at that conclusion, his Honour said that he respected and accepted the view of the Aboriginal witnesses who said that they are one people united by one law.  His Honour could not find, however, that the oral evidence enabled him to draw the inference that there was one society of Bardi and Jawi people at the time of first settlement and hence at the time of sovereignty (at [1044]).
(4)	In Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; (2010) 266 ALR 537 (Sampi FC), the Full Court reversed that decision and stated that central to the consideration of whether a group of people constituted a society in the sense used by the joint judgment in Yorta Yorta is whether the group acknowledged the same body of laws and customs relating to rights and interests in land and waters.   The Full Court said, at [58], that the evidence given by the Aboriginal witnesses had established that the Bardi and Jawi people shared one system of law at least as far back as the latter part of the 19th century.  On the basis of this, the primary judge should have found that the Bardi and Jawi people acknowledged the same laws and observed the same customs concerning rights and interests in relation to land and waters at least from the present back until the time of the witnesses’ old people or grandparents, namely the latter part of the 19th century.  The Full Court was then prepared to infer the existence of that acknowledgment and observance from the latter part of the 19th century back to sovereignty because the constitutional status and the elaborate nature of the rules and customs in question made it improbable that the system arose in the relatively short period between sovereignty and the time of the witnesses’ old people.  The Full Court noted that this was also consistent with the evidence of the claimants’ anthropologist in that case (at [64]-[66]).
(5)	In Sampi FC, the Full Court stated that there was little significance for the present inquiry in the use of the self-referents “Bardi” and “Jawi”, the use of different dialects or in the linkage with separate territories.   The existence of separate territories for people within a group who adhere to the same system of laws and customs, and the consequent reference to that linkage in identification is paralleled in many unified societies (at [68]-[69]). 
(6)	The Full Court noted in Sampi FC that the circumstances of each native title application are different and it is therefore not normally useful to compare the facts in one case to the facts in others.  Nonetheless, certain lines were said to have emerged between the characteristics of those groups which fall within the requirements laid down in Yorta Yorta and those which do not. The Full Court found it noteworthy, at [71], that “the Court has found in a number of cases that a native title claim group which adhered to an overarching set of fundamental beliefs constituted a society notwithstanding that the group was composed of people from different language groups or groups linked to specific areas within the larger territory which was the subject of the application”.  The Full Court gave as an example, at [72], Neowarra v State of Western Australia [2003] FCA 1402.   The Full Court also referred to the decision of Mansfield J in The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; (2004) 207 ALR 539 at [132], affirmed by the Full Court on appeal, Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 (Alyawarr FC) at [112].
(7)	Finally, the traditional laws and customs which are acknowledged and observed by the members of the society, need not be distinctive of them.  It is not necessary that no other Aboriginal group has the same or similar laws and customs (Risk v Northern Territory of Australia [2006] FCA 404 at [837]). 
(8)	Mr Robinson noted that there is a lack of ethnographic literature on social organisation in the claim area.
(9)	Mr Robinson said that because the literature is so meagre, it is more difficult to trace continuities of social structure and organisation.   If traditional Badimia affiliations with land were articulated through estate groups recruited on patrifilial principles, then such forms do not now exist in a clearly recognisable way.   He noted that the Badimia are placed on the edge of the Western Desert where traditionally, people did not follow the model of patrifilial clan estates.   Accordingly, the absence of estate groups among the Badimia may therefore be a reflection of their absence in the past, not of a cultural discontinuity. 
(10)	Mr Robinson noted that Bates suggested that rights in land were held at the higher level of the “tribe” or language group and that groups of kin who together identified themselves by a language label exercised rights over a common territory associated with that language. He maintained that such a land-owning system is consistent with what the Badimia themselves say about their rights in land. 
(11)	Mr Robinson stated during the concurrent evidence that he did not see any evidence of estate groups in the ethnographic literature. He considered that the present position regarding claimants having responsibility for certain areas is not a vestige of an estate group model, but is more likely to be the result of historical associations. 
(12)	Mr Robinson said that he was struck when analysing the genealogies of Bates that Bates did not record any individual as belonging to a local group in the claim area. Mr Robinson stated that this was in contrast to Bates’ genealogies further north relating to the Pilbara and the Ashburton regions, where she had included next to a person’s name the name of an estate and the letters “LG” indicating local group.   Mr Robinson said that knowing Bates’ work and understanding that she did know what local groups were, if they were there, Bates would have mentioned them. 
(13)	Dr Brunton stated in his first report that he does not think it is possible to specify the estates that would have existed at the time of sovereignty and their territorial extent. 
(14)	Dr Brunton said it is reasonable to conclude that at sovereignty estate groups, identified by anthropologists for most of Aboriginal Australia, existed in the Badimia claim area. 
(15)	Dr Brunton stated that “transmissible proprietary rights and interest in country” would not have been held at the tribal or language group level but rather would have been held by estate groups, and those estate groups would have granted contingent rights and interests of various kinds to individuals and groups where some particular kind of relationship existed. 
(16)	Dr Brunton stated that it would have been unlikely that those contingent rights would have been granted only to members of the same tribe as the members of the estate group and that “there is no reason to expect … that groups near tribal or language boundaries would have had a markedly different pattern of interaction with groups on the other side of the boundaries than they would have had with other members of their own tribe”. 
State’s submissions
382		The State joins issue with a number of the observations and submissions made by the claimants.  In particular, the State rejects the proposition put by Mr Robinson that Badimia descendants of apical ancestors can be split into a “social category” and a “social group”, in relation to which only the Badimia social group members have responsibilities and rights in relation to Badimia country, and contend this evidence, of itself, should result in the claim being dismissed.  
383		In this regard, the State submits that:
(1)	The claimants’ submissions as to who holds native title in the claim area are both inconsistent and variable. Three different and contradictory versions have been presented as to the identity of the native title holders.
(2)	The claimants’ formal case as presented in the claimants’ application is that the persons who hold native title in the claim area are those Aboriginal people biologically descended from a number of named apical ancestors. That is the case the State sought to meet.
(3)	Consistently with the claimants’ application, the claimants’ SFIC provides that the members of the native title claim group are “the descendants of the Badimia people who occupied the claim area at sovereignty” and that rights in land are gained via descent from those Badimia ancestors.  But, confusingly, in the last paragraph it instead provides that the native title holders are those persons who are descended from the named apical ancestors and who also “identify as, and are identified by others as, a Badimia person”.  However, this paragraph contradicts the case described in all other earlier paragraphs of the SFIC.
(4)	The evidence from Mr Robinson and the Aboriginal witnesses provides a further version of the membership requirements of the native title holding group, namely a Badimia identity plus the acknowledgement and observance of law and custom. In other words, according to Mr Robinson and the Aboriginal witnesses, to hold native title in the claim area a person must be descended from the named apical ancestors, identify as Badimia and acknowledge and observe Badimia law and custom.
(5)	The claimants’ submissions vacillate between the description of the native title holders common to the claimants’ application and SFIC (that is, one based solely on descent from named apical ancestors) and the description found in Mr Robinson’s and the Aboriginal evidence (that is, one requiring descent, identity and acknowledgement and observance of law and custom).  The claimants appear to have abandoned the second and somewhat confusing version of the native title holders set out in their SFIC (that is, requiring descent but adding an identity requirement) as it is not referred to at all in their submissions. 
(6)	For example, the claimants’ submit that the native title claim is brought on behalf of the “Badimia people” who are said to be all of the descendants of the named apical ancestors.  That is their pleaded case.  However, the claimants’ submissions suggest that a description of the native title holders “which is simply based upon decent from one of the apical ancestors would not be appropriate”, and cite in support of that proposition Mr Robinson’s conclusions that not all persons who are descended from Badimia apical ancestors have rights and interests in land.  In other words, the claimants suggest the native title holders are only those descendants who both identify as Badimia and acknowledge and observe law and custom. Confusingly, the claimants also use the descriptor “Badimia people” to refer to this group. 
(7)	Accordingly, it is not at all clear who the claimants now submit are the native title holders or who they are referring to when they use the descriptor “Badimia people” throughout their submissions, that label having being attached to two completely  different groups. Thus while the claimants attach great significance to the word “Badimia” as a marker of identity and group membership, that approach is flawed because it places reliance upon the use of the word “Badimia” without actually defining or considering what Badimia means in any particular context.
(8)	While the State accepts that, generally, the witnesses typically identified that they are “a Badimia person” because one of their ancestors was a Badimia person, the State disagrees that the case presented in the claimants’ application and SFIC is an accurate summary of the effect of the evidence or properly reflects the contemporary criteria for membership of any native title holding group.
(9)	In the State’s submission there was a clear differentiation in the evidence between those who are genealogically descended from a Badimia ancestor and those who are said to be members of the contemporary Badimia society and, therefore, members of the native title holding group. In Mr Robinson’s words, there is a “fundamental distinction between genealogy and society” and he, accordingly, differentiated between a “social category” and a “social group”.  This was a distinction borne out by the Aboriginal evidence.
(10)	In Mr Robinson’s opinion the “social category” comprises everyone who can trace descent from one of the apical ancestors and this category of persons did not “necessarily identify with each other or interact socially” and “could not be said to be united as a body of people who acknowledge and observe Badimia laws and customs”.  In fact, many members may not actively identify as Badimia or have “moved away from Badimia country and appear to retain few links to other Badimia descendants, people living in the claim area or the land itself”. 
(11)	The importance of this evidence cannot be understated. The claimants’ formal pleaded case as set out in the claimants’ application, SFIC and submissions is that all descendants of the named apical ancestors share in a communal native title.  The evidence is overwhelmingly to the contrary. The Court must find that the claimants’ case is not made out and the Court cannot make a determination in the terms sought. 
(12)	It is not possible on the evidence to identify how many members Mr Robinson’s “social category” may have.  As Dr Brunton pointed out, tracing descent cognatically leads after just a few generations to massive numbers of descendants.  When asked how many members the “social category” has Mr Robinson’s initial answer was that one would simply add up all of the people in the claimants’ genealogies.  Mr Robinson estimated this may be about 2,000 people.  Dr Fleet had made a similar estimate of 2,000 to 3,000 in 2001.   Mr Robinson then said the group was now likely to be larger than that. 
(13)	Even at its most basic level, there is a fundamental problem with the claimants’ pleaded case. As pointed out in Jango (at [447]), defining a rule of membership simply as “descent” is useless in native title terms because it may mask disputes as to the correct form of descent.  
(14)	That is the case here. The evidence discloses considerable disagreement amongst the witnesses as to the “correct” or “proper” basis upon which a person can make a claim to membership of the “social category” based upon descent (in particular, whether patrilineal or matrilineal descent was to be preferred). There is, accordingly, no rule of recognition based simply on “descent” because people have different reasons for thinking they, or others, are (or are not) “Badimia”, depending upon the form of descent preferred.
(15)	For example, in 2001 Ms H Little, and all the other interviewed members of the Little family apart from Mr A Little, appear to have told Dr Fleet that Badimia identity was supposed to be obtained only from the father and that “women may be members of the group but they cannot transmit membership”.  Similarly, in an interview with Mr Chambers in November 2006 Ken Bynder was recorded as stating that “old granddad always said they [the Badimia] went on the male line … The male line is the main line”.  When asked whether he could have followed his non-Badimia mother Mr Bynder answered “as far as my dad was concerned, that was out of the question”.  Likewise, according to Dr Fleet, “Leah Bell has faced some opposition to her claim to be Badimia through her mother’s mother Uanda”. 
(16)	In contrast, Leah Bell stated that she “was always taught that you follow your mother” to get a Badimia identity and agreed that it was the “proper thing to do”.  Ms Bell said that although it might be acceptable for others to follow their father to obtain a Badimia identity she “wasn’t brought up that way”.  Coral Brockman stated that she “guessed” a person could get Badimia membership from either parent but stated “I wouldn’t know. I got mine from my mummy, that’s what I know”.  When asked whether she knew of any other people who followed their father she stated “I don’t mind their business. Not my business”.  In a 2006 interview with Mr Chambers, Mr P George responded “yes” to the question of whether he claimed to be Badimia through his mother and, when asked whether that was the same rule for everybody, he said “well I reckon, well it is my rule anyhow … I might be wrong but I don’t think so”.  In 2006, when asked by Mr Chambers whether there was a rule associated with which parent to follow, Beverly Slater stated, “I used to believe that it was through either parent but as I have grown to understand as to how it works it is through your matriarch, so through your mother”.  However, in 2010 Ms Slater deemphasised the maternal preference stating a person could follow either their father or mother. 
(17)	The confusion amongst members of the claimants on this point seems best summed up by Ms H Little in an interview she gave Mr Chambers in May 2006. Responding to the question about whether a person’s identity came from their mother or their father Ms Little said “Well, we was always told from your father … that’s in the traditional way … but it looks like you can go from anyone”.  Half a minute later she went on to say “halfway through the claim they turn around and say you have to claim on your mum’s side, so I don’t know … you can argue til you go black and blue in the face, but they will say, ‘oh, you’ve got to back through your mother now’ … one minute they want to be on, going on the father’s [side] and the next they want to change”. 
(18)	Additionally, while adoption does not figure in the claimants’ pleaded case on the membership of the native title holding group, there was, nevertheless, significant dispute amongst the Aboriginal witnesses as to whether a person with non-Badimia parents who was adopted by Badimia people could become a member of the “social category”.
(19)	For example, Ashley Bell considered that a person whose parents were not Badimia but who was “brought up” by a Badimia person did not become Badimia.  Similarly, Frank Walsh Jnr said that people with non-Badimia parents who were raised or adopted by Badimia people could not be Badimia because they lacked the “blood connection”.  Mr Walsh Jnr’s non-Badimia step daughters were “respected” by the Badimia people but could never become Badimia.  Mr Walsh Jnr was not aware of any people being adopted into the Badimia group.  Olive Gibson did not know whether a person with non-Badimia parents could become Badimia through adoption.
(20)	On the other hand, Darryl Fogarty stated that if a person with non-Badimia parents was adopted by a Badimia person they would be accepted as Badimia.  Ollie George also said that a person with non-Badimia parents could become Badimia if they were adopted by Badimia people, “raised on Badimia country and taught about the country and learn Badimia ways”.  Likewise, Roderick Hedlam stated that a person with non-Badimia parents who was adopted by Badimia people, raised as a Badimia person and brought up on Badimia country could be Badimia if they wanted.  Des Thompson said that a non-Badimia person could become Badimia if they were raised by a Badimia person.  Alan Walsh considered that a person with non-Badimia parents could become a Badimia person if they were fostered or adopted by a Badimia person.  His wife, Joan Walsh, also believed that a person with non-Badimia parents could become Badimia if they were raised or adopted by Badimia people, taught about the culture and accepted by other Badimia, although they were “slightly less” than other Badimia people.  Alan Walsh and Joan Walsh had fostered two children who were accepted as Badimia people. 
(21)	In contrast, the “social group” was said by Mr Robinson to be a subset of the “social category”.  Mr Robinson described them variously as those people who “choose to activate” their rights “by returning to Badimia country, learning the law and learning about country … learning about traditions and performing obligations” and who subscribe to Badimia values and who see themselves as bound by a system of traditional laws and customs.  Mr Robinson said qualification for his “social group” depends upon “effective performance of rights and duties in land”. 
(22)	In Mr Robinson’s opinion, only members of the “social group” are members of a Badimia “society” and thus only they hold rights and interests in the claim area. 
(23)	The distinction between the social category and social group was a distinction which was borne out by the Aboriginal evidence. 
(24)	For instance, Ron Bandy suggested that Badimia people who had not lived on, and learnt about, Badimia country would have a limited, or potentially no, ability to speak for country, stating “well, I think they’re still Badimia if they got Badimia parents, and I don’t know what they’d have to speak about if they haven’t been here. I don’t know. They’d have to read something from the books”.  Mr Bandy considered the people to speak for country were those who “have been connected to the land, know about the country and what’s on it” (that is, members of Mr Robinson’s “social group”).  Mr Bandy stated that he had followed his mother and become Badimia because he “knew the Badimia side and lived on Badimia country”.  Similarly, Mr Bandy’s children had a non-Badimia mother but had chosen to follow him and were Badimia because they lived in Mount Magnet and “that’s where [they were] born and bred”. 
(25)	Ashley Bell accepted that, provided a person had Badimia parents, they could be Badimia even if they had been brought up outside of Badimia country, and had never been to the area or learnt anything about it, but in order to speak for country (that is, have rights in it) a person had to be more than merely descended from a Badimia person (that is, it was not enough to be a member of the social category).  Rather “if you have a particular connection to land and that custodianship has been passed on to you, then you have a stronger – stronger feeling to talk for that land”.
(26)	Similarly, Leah Bell indicated that “something more” was required for a person to be a member of the social group, stating that “I think it depends on how [the person has] been raised” by which she explained she meant that “they’ve had connections with Badimia country and the culture and that’s the main thing that they’ve learnt as they’ve grown up”.  Similarly, when asked whether people who were not taught about Badimia laws and customs and were not shown the country still had a right to speak for country, Leah Bell stated that “I’m not sure that they would. I’m pretty sure that they wouldn’t even want to because … they’re just a bit removed from all of that. But that doesn’t stop them from being Badimia though”.  The State understands Ms Bell’s last comment to be a reference to remaining a member of the Badimia social category (as opposed to a member of the social group). 
(27)	Alan Walsh said that a Badimia person needed to have knowledge about, and live on, Badimia country before they could speak for the country.  Mr Walsh stated that a Badimia person who lived outside the area and who had never come up to Badimia country or learnt about it was not able to speak for country “because they don’t know the country. They might be Badimia people but … lot of the fella living in town now, they only laugh at that Badimia policy”.  Mr Walsh acknowledged that while there were some Badimia people who still looked after country and learnt about it (and would therefore be members of the social group) there were others who did not (who presumably were merely members of the social category). 
(28)	Frank Walsh Jnr stated that he got rights in country because he was “descended from Badimia people and because [he] grew up on the land” and it was his “birth right” having been born to a Badimia parent.  However Mr Walsh Jnr acknowledged that a person who did not keep a connection with, or learn about, Badimia country would have a “lesser” status and that “you’ve got that knowledge, more knowledge of country, then you become more important as a person to talk about the country”.  Mr Walsh Jnr stated that situations arose “all the time” where it was necessary to try and work out another person’s position and whether they would speak or not. 
(29)	While Olive Gibson stated that in theory a person who lived outside of Badimia country for all of their life and had never learnt anything about the country could still come back and be a Badimia person, she noted that many of them “just don’t come back”.  In other words Ms Gibson appeared to accept that although members of the Badimia social category could potentially become members of the social group by coming back to country and learning about it, few did.
(30)	In 2001 in a discussion of “Bitumen Badimia” (that is, that majority of descendants of the Badimia apical ancestors who live in Perth or other places) Dr Fleet quoted Ollie George as saying “they should be Badimia because of their old mum and dad were all Badimia, then again they weren’t brought up in this area so they are not hardly Badimia”.  When giving evidence in 2010 Mr George stated that a person could still be Badimia even if they were born or lived outside Badimia country (that is, a member of the social category) but suggested that it was important for a person to know about the country to be Badimia (that is, a member of the social group). 
(31)	In an interview with Mr Chambers in November 2006 when asked “what makes a person Badimia?” Don Clinch responded, “Gee that’s a hard one … well to me, it’s just, I feel it’s just … the love of that area, to me especially, around Goodingnow, Paynes Find, just the land”.  Mr Clinch continued talking about his love of the country, and memories of the things he used to do in the area when he was young for a minute or so, until Mr Chambers interrupted with, “So your identity is coming from the country?” to which Mr Clinch answered, “Yeah, definitely, yeah”.  Mr Chambers then asked, “What about from your parents? Were they Badimia?” to which Mr Clinch responded, “Yeah as far as that goes”, suggesting that Mr Clinch considered that knowledge of, and love of, country was required to be a member of the social group.
(32)	Coral Brockman said that in addition to having a Badimia mother she was Badimia because she was “brought up Badimia. My values, beliefs and attitudes are commonly shared by other people who call themselves Badimia”.  Similarly, Beverly Slater said that a person was Badimia if they had a parent or grandparent who was Badimia and were “taught Badimia ways and some Badimia language and… lived on Badimia country”.  Likewise, Frank Walsh Snr stated that it was important for a person to be raised in Badimia country if they were going to be Badimia. 
(33)	Thus, it is clearly not possible to objectively identify who the members of Mr Robinson’s “social group” are.  Mr Robinson agreed that the claimants’ genealogies did not provide that information, as they simply listed potential members of the social group and did not purport to identify the members of the native title holding group. 
(34)	To the extent that choice in following one parent or another may limit overall numbers in this group, it introduces an additional task of identifying which individuals identify as Badimia and which do not. On the evidence, there is no genuine means of making this identification either. Further, when coupled with a requirement that a person must “activate” their membership in the social group by learning about, and performing, law and custom, the members of the social group become impossible for the Court to identify.  
(35)	The contemporary evidence is that, unlike in cognatic systems in more traditional parts of the State, any choice made to belong to the social group is flexible and reversible with the result that over time some members of the social group may “have left [Badimia country], and others have remained, and some have moved temporarily out and moved back in subscribing to the same body of rules”, as Mr Robinson stated.
(36)	In the State’s submission the effect of the evidence as to the criteria by which a person could become a member of the social group was accurately summarised by the claimants, who submitted that whether someone belongs to the Badimia social group, that is the Badimia society, will depend very much on their “life circumstances”.   Accordingly, a person born from a Badimia ancestor (that is, a member of the social category) could choose, or not (as the case may be), to become a member of the social group for a variety of entirely personal and historical reasons not readily or easily identifiable to other members of the social group.
(37)	This was a view shared by a number of the Aboriginal witnesses. For example, Ashley Bell stated that the group a person belongs to “depends on the person and the parents”.  Roderick Hedlam said a person could “please themself” as to what identity they choose and people generally “go where the best place for them [is]”.  Mr Hedlam stated that this situation differed from the “old days” where people “went where you was told to”.  Beverly Slater said a person’s group was a “life choice”  and that it was “not for [her] to figure out” whether any particular person had chosen to be a member of the social group, that was a matter for the family and the elders to work out as she could not speak for, or know, what other people did.  Coral Brockman stated she did not know what group her children had chosen to belong to as that it was “their choice” and that she “didn’t interfere with people’s choices”.  Joan Walsh also said that it was a personal choice as to which group a person belonged to. 
(38)	Accordingly, in the State’s submission, it not surprising that Frank Walsh Jnr gave evidence that situations arose “all the time” where it was necessary to try and work out other people’s positions in the social group and whether they were qualified to speak for country or not.
(39)	Further, the evidence also suggests that people were not limited to being members of the Badimia social group and could consider themselves as belonging to more than one group at once and can assert rights in more than one area of country.  For instance, Gloria Fogarty gave evidence that in circumstances where a person had a non-Badimia parent or grandparent they could have multiple identities and retain links with all sides of their family.  Frank Walsh Snr also agreed that a person with a non‑Badimia parent could be “half Badimia” and “half something else”.  Olive Gibson’s youngest children, who had a Wajarri father, were said by Ms Gibson to be both Badimia and Wajarri.  Beverly Slater said that a person who had a non-Badimia parent was able to follow both parents.  Coral Brockman stated that the identity of her children “was an interesting question” and that they identified as both Badimia and Noongar.  Ms Brockman explained that her children were Badimia when they were on Badimia land and Noongar when they were on Noongar land.  Additionally, one of Ms Brockman’s sons was also involved in the Amangu claim and Ms Brockman did not know whether he was still part of the Badimia claim (that is, a member of the social group). 
(40)	While it is not possible on the evidence to identify how many members Mr Robinson’s “social category” may have, even less clear is the number of members of the “social group” (that is, the purported native title holders). 
(41)	Mr Robinson stated that it was not possible to provide a precise number for the social group and agreed that the claimants’ genealogies did not provide that information.  Mr Robinson suggested that a “very rough estimate” of the members of the social group would be no more than 500 people at any one time which, in the State’s submission, for the reasons discussed below, is a very great overestimate.
(42)	The Aboriginal witnesses were either unsure, or gave wildly conflicting accounts, of how many members of the social group there are.  While some of the confusion may be the result of particular witnesses referring to the number of persons in the social category while others referred to the numbers persons in the social group when asked how many Badimia people there were, that is by no means clear and serves to highlight the general uncertainty amongst the witnesses as to the number (and identity) of the native title holders. 
(43)	For instance, Coral Brockman had no idea how many Badimia people there were and “wouldn’t even guess”.  Similarly, Darryl Fogarty stated that he did not have any idea how many Badimia people there were and did not know how he would work it out. 
(44)	Ashley Bell did not know how many Badimia people there were but guessed that it would be in the hundreds.  In contrast, Leah Bell considered that there were approximately 1200 members of the Clinch family and that the total number of Badimia people was approximately 2,000 or 3,000.  Ms Bell did not know where the 1,200 members of the Clinches lived but stated that, apart from her and her immediate family (who hold the lease for Ninghan Station), she did not know of any Clinches who were living in the area as “there’s nothing in Paynes Find anymore so you know they had to move away for work and education”.  Given Leah Bell’s earlier evidence it would seem that her estimate of 2,000 or 3,000 people is likely to refer to the number of members of the social category not the social group. The number of members of the social group would appear to be much smaller given that, on Ms Bell’s evidence, very few of the 1,200 members of the Clinch family have maintained their links with country.
(45)	Ollie George stated that there might be a thousand Badimia people and when asked where those people lived said there “could be some in Perth, could be some in Geraldton … Magnet, Yalgoo, out this way somewhere, Sandstone. What I mean is Aboriginal today, they don’t have to sit around in the bush here … .  What the poor fellas going to eat while they’re sitting here?”.  In light of Mr George’s evidence it seems reasonable to assume that Mr George was referring to the number of members in the social category (the majority of whom lived away from country).
(46)	Olive Gibson was unable to say how many Badimia people there were “because there’s so many of them” and that many of them lived in Perth, suggesting that Ms Gibson was referring to members of the social category and not the social group.  Roderick Hedlam said that there were “a couple of thousand” of Badimia people.  Mr Hedlam stated that there were at least 70 people in the Hedlam family and that “everybody’s got the same so there must be a lot of people”.  It is not clear from the context of Mr Hedlam’s evidence whether he was referring to the social category or the social group.
(47)	Beverly Slater said that she did not know how many Badimia people there were and could not give an estimate. Ms Slater stated that the only Badimia people she knew were mainly members of her family. However, Ms Slater was unable to estimate how many people were in her extended family, stating that the only way of working that out would be to “try and get them all together and count them”.  Further, Ms Slater was unable to say whether all the members of her extended family were, in fact Badimia (by which the State understands she meant members of the social group) and did not have any way of knowing.  On a number of occasions Ms Slater indicated that she could only speak for, or knew about, her immediate family and did not know or could not say what other Badimia people thought or did. 
(48)	Leaving aside the fact that the Aboriginal witnesses were unable to articulate a clear or consistent account of how many members of the social group there are, the weight of the evidence would suggest that the social group is, in fact, a very small group.  Its members generally live in and around the claim area and come from the “core” families who are generally all interrelated to each other.  This is supported both by the identity of, and the relationship between, the witnesses who gave evidence and the families they identified as being “Badimia families”, that is, members of the social group.
(49)	For instance, Ron Bandy, Coral Brockman, Darryl Fogarty, Gloria Fogarty, Roderick Hedlam, Beverly Slater and Joan Walsh are all members of the Little family and related to each other in varying degrees (typically cousins).  Darryl Fogarty and Gloria Fogarty are also members of the Fogarty family, however, the Fogartys are all members of the Little family in any event.  Darryl Fogarty, Beverly Slater and Coral Brockman are also members of the Clinch family, as are Ashley Bell and Leah Bell.  Joan Walsh is married to Alan Walsh, a member of the George and Walsh families. The George and Walsh families are, in effect, the same family and are all descended from Ms C George.  Frank Walsh Snr, Frank Walsh Jnr and Ollie George are also members of the George/Walsh family. 
(50)	These three interrelated families, the Littles, the Clinches and the George/Walshes, as well as comprising the bulk of the witnesses who gave evidence would also appear to comprise the majority of families from which members of the social group are drawn.  For example Ashley Bell gave evidence that the Badimia families were the Walshes, the Clinches, the Georges, the Bells and the Fogartys and that all of these families were largely interrelated.  Leah Bell said that the Badimia families were the Walshes, the Clinches, the Georges, the Bells, the Fogartys and the Martins and that all of these families had married into each other.  Coral Brockman said that people from the Walsh, George, Little, Bandy, Fogarty, Hicks, Clinch, Lawson, Jones and Martin families were Badimia.  Ms Brockman stated that all Badimia people were related to each other.  Olive Gibson said that the Badimia families included the Littles, the Fogartys, the Clinches, the Lawsons and descendants of Joe Benjamin  and that all of the Badimia families were fairly closely related.  Clarrie Cameron said that the Walshes, Georges, Littles, Fogartys, Hedlams and Clinches were the Badimia families he knew when living in Mount Magnet.  Frank Walsh Snr said that the main Badimia families that lived in Mount Magnet when he was growing up were the Georges, Bandys, Littles, Fogartys and Jones while the Clinches lived at Paynes Find. 
(51)	Of the additional families listed by the witnesses, namely the Bell, Martin, Bandy, Hicks, Hedlam, Lawson, Jones and Benjamin families, most are, in fact, members of broader Little, Clinch and the George/Walsh families.  For example, the Bells are members of the Clinch family, while the Martin, Bandy, Hicks and Hedlam families are members of the Littles.  Further, the Jones family are not members of the claim group, having not been listed on the claimants’ application and, in any event, the claimants conceded that they were unable to produce any evidence to support the Jones’ status as Badimia people. 
(52)	The only other families represented by the witnesses who gave evidence are the Thompson family (represented by Des Thompson and his sister Olive Gibson) and the Lawson family (represented by Percy Lawson).  In the State’s submission it appears that these families sit at the periphery of the claim group. They were generally not listed by the witnesses as being one of the recognised Badimia families (that is, members of the social group) and Mr Lawson himself stated that he was “a bit disappointed in some of the other Badimia people for not letting other people know, like the courts before, about the Lawson families”.  Further, the Thompson family appear to speak for, or are associated with, areas which are largely outside the current claim area to the east.
(53)	While the case pleaded by the claimants in the claimants’ application and claimants’ SFIC and generally maintained in the claimants’ submissions is that contemporary Badimia society consists of all members of the social category, as discussed above, there is an inconsistency between that case and the evidence given by Mr Robinson and the Aboriginal witnesses. 
(54)	Neither the Aboriginal evidence nor Mr Robinson’s written and oral evidence supports the claimants’ pleaded contention that under the laws and customs as presently acknowledged and observed all persons descended from known Badimia ancestors, or even those who identify under cognatic descent as Badimia, are members of a contemporary Badimia society or have rights and interests in land. Indeed, in certain parts, the claimants’ submissions appear to suggest otherwise.
(55)	Accordingly, descent from a named apical ancestor is clearly not the operative normative principle pursuant to which membership of the native title holding group is determined in the claim area. If it were, all members of the social category would be members of that group (which clearly they are not). 
(56)	This is not, as the claimants submit, simply a matter of “intramural allocation”. The members of the social category do not share in a communal native title. Most have no rights at all.  It is improper to suggest that the Court can simply identify a large group, most of whom do not hold native title, and say that the question of which do and which do not is “intramural”.  To the extent that the authorities support the idea of “intramural allocation” that refers to who holds what rights (and where) amongst a class of people who all hold rights. What is suggested here is “extramural” allocation.
(57)	It would be in complete disregard of the Court’s obligations under s 225 NTA to do what the claimants submit the Court should do and make a determination that native title is held by a large (unidentifiable) group, only some (apparently a very small portion) of whom hold rights.
(58)	In the State’s submission the relationship between the claimants’ pleaded case and the Aboriginal evidence and Mr Robinson’s opinion in this case is identical to the situation in Jango regarding the relationship between the Aboriginal evidence and the pleadings in that case.  The Court should equally find here that the claimants’ pleaded case has not been made out.
(59)	In any event, even if the Court were to find that contemporary Badimia society consists of all members of the social category in accordance with the claimants’ pleaded case, s 223(1) NTA and Yorta Yorta require continued acknowledgment and observance of traditional laws and customs by the relevant society or group, not just certain individuals or a small minority of that society or group.   It is not open to the Court to find native title is held by a society or claim group where in substance the members of that society or group no longer acknowledge or observe traditional laws and customs. 
(60)	It is apparent that the many (perhaps thousands of) present day descendants of Badimia people who fall within the social category do not acknowledge and observe traditional law and custom or have any connection with the claim area.  It is, in fact, their non-acknowledgement and observance of traditional law and custom and lack of connection which places them in the social category, rather than the social group in the first place.  The defining feature of this group, according to Mr Robinson, is that they retain few links with other Badimia people or the land and could not be said to united as a body of people who acknowledge and observe Badimia laws and customs. 
(61)	Accordingly, any society consisting of all of the members of the social category has, on the evidence of the claimants’ own anthropologist, ceased to exist as a body united in and by its acknowledgment of a normative system of traditional laws and customs.  The invention of a new rule – that the few who visit country do have native title and the many who do not, do not have native title – is simply a symptom of the loss of the traditional society and system.
(62)	If the Court accepts the evidence from the Aboriginal witnesses and Mr Robinson that the present day Badimia society consists only of members of the social group (and, contrary to the State’s submissions, does not consider the claimants bound by its pleaded case) then the State submits that the evidence at trial clearly demonstrates that there is not a normative system for determining membership of the social group and contemporary Badimia society.  Further, even if (which is denied), there can be said to be a normative system for determining membership of the social group it is not one based on traditional law and custom. 
(63)	As discussed above, membership of the social group is circumstantial and ultimately predicated on personal choice, life history and subjective views about one’s ancestry.  In those circumstances it is difficult, if not impossible, to determine whether any particular individual is, or is not, a member of the contemporary society, let alone how many members of the society there are.  Further, the evidence suggests that, in any event, there are real disagreements as to the membership criteria for the social category and social group and no real mechanism for identifying who is, and is not, in the group.
(64)	At most, all the Court has before it is the evidence of the Aboriginal witnesses as to whether they, and perhaps some of their immediate family members, fall within the social group category and thus are members of the purported contemporary society.  However, the fact members of the social group may come and go from the group as their personal circumstances change suggests that the composition of the contemporary society is constantly changing such that even some of the Aboriginal witnesses or their immediate family may drop out of the social group at any point in time.
(65)	That is not a normative system of group membership in the sense required by s 223 NTA.  Subjective, personal circumstances cannot, by definition, be “normative”.
(66)	Even if, contrary to the submissions above, there is a normative system for membership of the native title holding group it is clear that the system does not operate according to traditional laws and customs (allowing for a degree of change).
(67)	As a matter of common logic, the distinction between the “inactive” members of the social category and the “active” members of the social group cannot have been a feature of social organisation at sovereignty. All Aboriginal people were, by definition, “active” in following traditional laws and customs and members for the simple reason that there existed no other choice.  A non-traditional life in Perth, for example, was not available. In the State’s submission it is difficult to see how the contemporary social category and social group distinction accords with, and might thus be a product of, traditional and pre-sovereignty social relations.
(68)	Mr Robinson agreed that the distinction was a change which had occurred post‑sovereignty.   He said it was a change which introduced uncertainty as to whether those who left their traditional country form a diaspora or had abandoned the “society” altogether.  Although he later suggested that an analogy could be drawn with a traditional situation where, according to traditional laws and customs, women from one group married into another, that, with respect, is a completely different situation.  The distinction between social category and social group is intra‑Badimia and is a distinction between those who purport to acknowledge traditional laws and customs and those who do not.
(69)	Accordingly, any present day Badimia “society” consisting only of members of the social group is a subgroup of, and is not the same as, the society which occupied the claim area at sovereignty.  That is fatal to the claimants’ case. 
(70)	In any event, while the number of members of a relevant society who must continue to acknowledge and observe traditional laws and customs is a question of fact and degree in each case, in the State’s submission the small, interrelated, members of the social group, are very far short of the kind of critical mass of people who might be able to maintain a normative system of traditional laws and customs. 
384		The State also observes and submits that:
(1)	The claimants bear the onus of establishing that the laws and customs relied upon by the claimants are “traditional laws and customs” which gave rise, and give rise, to rights and interests in land in the claim area. “Traditional laws and customs” are the normative rules of the Aboriginal societies which existed before the assertion of sovereignty (Yorta Yorta at [46]).   The claimants therefore must also establish the identity of the “society” whose laws and customs gave rise to rights and interests in relation to the land and waters in the claim area before the assertion of sovereignty in 1829.
(2)	The High Court in Yorta Yorta acknowledged that this onus may be very difficult to discharge, especially in cases where traditional law and custom have been affected by European settlement.  The Court confirmed, at [80], that “the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision”.   
(3)	The correct approach is shown in Jango.  Namely, traditional law and custom is to be assessed at sovereignty by anthropological and historical evidence.  Contemporary Aboriginal witnesses may be expected to give evidence that they acknowledge and observe laws and customs handed down to them by their parents, grandparents or other ancestors, however, as Sackville J correctly observed, that evidence, even if it reflects the genuine beliefs of the witnesses, “does not, of itself, establish that those laws and customs are traditional in the sense required by Yorta Yorta” (at [460]‑[462]). 
(4)	Thus, as Sackville J noted, at [462], native title claimants “adduce anthropological evidence to establish the link between current laws and customs … and the laws and customs acknowledged and observed by the claimants’ predecessors at the time of sovereignty”.   In this case, that task was given by the claimants to Mr Robinson.
(5)	The claimants’ submissions devote considerable space to establishing the proposition that the Court may simply infer from the contemporary evidence of Aboriginal witnesses about their laws and customs that those laws and customs are traditional. In fact, that now appears to be the substance of their case.  
(6)	That is not the effect of the authorities.
(7)	It is true that the plurality in the High Court in Yorta Yorta observed, at [80]‑[82], that the Court may be invited by native title claimants to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. The Court was not able to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn. 
(8)	Of course, it is apparent from the result, upheld on appeal, that the contemporary evidence led in Yorta Yorta itself was insufficient to establish traditionality of laws and customs in the face of historical documentary evidence to the contrary.
(9)	A similar observation can be made about Jango.  The reference to [504] of Sackville J’s judgment in the claimants’ submissions is apt to mislead when used in isolation as the claimants have done.  The availability of any inference of traditionality is dependent upon all of the evidentiary circumstances. Again, the correct approach is in Jango at [460]‑[462]: contemporary evidence alone is insufficient and anthropological or historical evidence is led to establish traditionality of laws and customs.
(10)	In Mason v Tritton (1994) 34 NSWLR 572, Kirby P in the New South Wales Court of Appeal examined the common law principles for drawing inferences.  His Honour quoted from Wigmore on Evidence where it was said at 587 (inter alia): 
When the existence of an object, condition, quality or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period.  The degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end.  The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand.
   
(11)	Kirby P concluded, at 587-9, that inferences can be drawn in native title cases that a situation that exists at a particular point in time also existed at an earlier point in time.  However, whether such an inference can be drawn depends upon the chances of intervening circumstances having occurred which would bring the situation to an end. His Honour noted that in more traditional Aboriginal communities the inference will be quite easily drawn. 
(12)	Similarly, in Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457 Selway J held, at [198]‑[201], that there was no “obvious reason” in that case why an evidentiary inference (of the kind discussed in Mason v Tritton) was not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement or the existence of rights and interests arising under that tradition or custom.  However Selway J went on to state, at [201], that “this does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement”. 
(13)	In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1 Lindgren J noted, at [345], that “the permissible drawing of inferences requires careful consideration of the practice or activity, the frequency or rarity of its occurrence as observed, the circumstances of earlier times in so far as they are known and the general probabilities”. 
(14)	As is the case in the general law, the question of whether or not an evidentiary inference may be drawn in a native title case depends upon there being no contrary evidence (“intervening circumstances” of the kind identified in Wigmore on Evidence above) which removes the ability for the inference to be drawn.  
(15)	Thus, in Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84, the Full Court described the trial judge’s failure to attach weight to the evidence of earlier anthropologists on the (non)observance of traditional laws and customs between sovereignty and the present (and to rely instead upon contemporary evidence) as “a serious error”, at [95], and upheld an appeal on that basis (among others). 
(16)	The State submits that the Court cannot in this case draw any simple inference from the Aboriginal evidence about the continued acknowledgment and observance of traditional law and custom because there is a great deal of historical and anthropological evidence which demonstrates interruption to, or lack of continuity of, the acknowledgment of law and custom.  
(17)	It would be a serious error, therefore, for the Court to simply draw inferences from contemporary Aboriginal evidence about the nature and identity of traditional laws and customs and traditional “society” in the claim area at sovereignty.  
(18)	The State repeats its earlier submission: the onus is on the claimants to demonstrate continuity in traditional law and customs and society from sovereignty to the present.  It is not the case that continuity may be simply inferred and the onus then somehow transferred to the respondents to show what the pre-sovereignty laws and customs were and that they were different from the contemporary ones.
(19)	If the claimants are unable to identify the system for allocating rights and interests in land at sovereignty, then the application cannot succeed.  
385		The State further submits that:
(1)	Mr Robinson’s evidence concerning the system of local organisation at sovereignty was inconsistent.
(2)	In Mr Robinson’s first report, he was of the view that at sovereignty rights in land would have been held by estate groups at the local level, although all members of the Badimia language group may have been able to utilise the whole area.  This, he noted, was what was reported by a number of ethnographers, including RM Berndt, Bates and Kingsford. In fact, Berndt identified a distinct “Inggada-Badimia-Widi” estate group structure. 
(3)	Noting that it was not possible to definitively identify the system of local organisation at sovereignty, Mr Robinson said:
It may be concluded only that there was a division of larger language groups into smaller kin-based local groups in the Murchison, but it is no longer possible to say how they were actually composed.

(4)	In his supplementary report, Mr Robinson suggested that the current association of families with particular parts of the claim area may be the continuation of an original estate-like system of local organisation.  On the other hand he suggested there may have been a more fluid arrangement influenced by the Western Desert system.
(5)	Mr Robinson did not in his oral evidence express a firm view about the nature of the landholding system at sovereignty, speculating that it may have been somewhere between the patrilineal estate groups of the Gascoyne and Pilbara and the more fluid system of the Western Desert. 
(6)	Mr Robinson did not identify the features of the Western Desert system, nor provide any evidence about how that system may be relevant to the claim area.  His view that there may be some relationship between the two systems is not supported by any published ethnography and is contrary, for example, to the findings made in Harrington-Smith by Lindgren J about the geographical extent of the Western Desert Cultural Bloc (which, at sovereignty, came to an end at a line around Menzies and Lake Darlot, at least 300 kilometres to the east of the claim area).  
(7)	It is also inconsistent with the Aboriginal evidence which consistently suggested clear differences between Badimia people and Wanmala and other people to the east. For example, Mr Darren Farmer, a Martu man, gave evidence in this proceeding that Badimia are not part of the Western Desert Cultural Bloc and have different laws and customs (although relationships between the two groups commenced in the 1960s or 1970s and have been enhanced in recent years through shared concern about mining). 
(8)	The only real evidence about any influence of Western Desert ideas in relation to the claim area was from Kingsford, who Dr Brunton noted had reported the beginnings of some Western Desert influence on beliefs in the claim area in the 1980s.  If there is any Western Desert influence in the laws and customs of the claim area (which is denied) the evidence is clear it is quite recent. 
(9)	In cross-examination, Mr Robinson agreed that his change of view away from the estate group model described in his written reports was a change of opinion.  He said it was a change which resulted from hearing the Aboriginal evidence in this case (which he considered was evidence of “a more open-ended arrangement” than the local group model), then projecting backwards and assuming that the present situation described by the witnesses is a continuation of the past.  That form of reasoning is not of any assistance in a native title proceeding for the reasons explained in Jango (at [502]‑[504]) as well as Bodney (at [47], [70]) and Yorta Yorta (at [56], [87]). 
(10)	In any event (and confusingly in the State’s submission) later in his oral evidence, Mr Robinson appeared to have reverted to his opinion that there were estate groups in the claim area at sovereignty.  The claimants’ submissions are apt to mislead in that they fail to note Mr Robinson’s changing views on this issue.
(11)	Dr Brunton’s view was that, although the evidence about local organisation at sovereignty was relatively slight, there is sufficient ethnographic evidence to demonstrate that it was most likely that land was held by patrilineal estate groups.  He noted that, even by Bates’ time, many of the local group areas had become “orphaned” or “ownerless”.  Dr Brunton noted that Kingsford reported that a (largely defunct) local group concept applied to Warrdagga. 
386		In relation to other laws and customs contended for by the claimants by which native title arises, the State observes and submits as follows. 
387		As to spiritual beliefs:
(1)	There is limited ethnographic material available regarding the belief in the Bimara amongst the Aboriginal people of the claim area at sovereignty and specific reference to the Bimara is largely absent from the literature.  
(2)	Both Mr Robinson and Dr Brunton agreed that beliefs about a mythical water serpent or rainbow serpent are very common in Aboriginal Australia.  For example, Bates observed that “propitiatory offerings were made to a huge mythical snake which is supposed to inhabit certain deep pools, hills, valleys and other spots throughout all the known parts of Western Australia”.  Bates also recorded that there were circular piles of stones scattered throughout the Murchison and Gascoyne which were said to mark the journey of the mythical snake.  Accordingly Mr Robinson and Dr Brunton were of the opinion that customs related to the creative and punitive powers of the mythical snake were important in the claim area at sovereignty. 
(3)	However, the word Bimara was not distinctive to the claim area at sovereignty and was of wider distribution. For example, Bates recorded the existence of Bimara in a number of locations well outside the claim area (such as Belele located to the north‑west of Meekatharra).  Further, Davidson’s vocabulary slips show that the “Bardimaia” word for the mythical snake was, in fact, “kwi.mara”, while “Bimara” was the word for “ceremonial ground” in the Kandari (probably Wajarri) and Yabberu languages.  
(4)	The evidence also indicates that, at sovereignty, a distinct Bimara was associated with each specific estate. For example, Kingsford identified that his informants described (but perhaps no longer practised) a totemic or cult group relationship which existed between the members of a particular estate group and a specific Bimara (or, more accurately, a male/female Bimara pair) located at the centre of the estate group’s land.  Kingsford observed that the word Bimara had a number of linked meanings for Yamatji people, including “focal site and its surrounds in an estate”, “waterhole or water source”, “water-snake”, and for the “Badimaya”, “rainbow”.  This account was consistent with observations made by Bates who recorded a number of references to Bimara as applying either to estates or to significant sites on estates. 
388		As to spirit beings:
(1)	As to mundungu, given the widespread distribution throughout Aboriginal Australia of beliefs that the landscape was populated by a variety of spirit beings, both Dr Brunton and Mr Robinson agreed that it would be reasonable to think that such notions were present in the claim area at sovereignty.  
(2)	Certainly, Bates referred to “moondung” as the word used for both spirits of the dead and white people in Murchison locations such as the Weld Range and Yalgoo districts.  In a vocabulary Bates collected from the Mount Magnet district, “moondung” was given as the word for “white man, white woman” (although the words for “ghost” were listed as “maangoo” and “winjee”).  
(3)	According to Kingsford, a spirit being named “mundung” or “mundungu” had strong associations both with initiation sequences and songs and with mabarn powers (mabarn men were thought to be able to turn into mundungu).  Kingsford observed that mundungu had dual benefic-malefic aspects and were linked to the Bimara.  In agreement with Bates, Kingsford also recorded that mundungu were thought of as the spirits of recently deceased persons. 
(4)	As to wurdaji, according to Dr Brunton, given the prevalence in Aboriginal Australia of notions about “little people” who inhabit particular kinds of locations and who can be dangerous to humans it was reasonable to assume that such beings would have been thought to be present in the claim area at sovereignty.  Mr Robinson did not explicitly address the position at sovereignty in his evidence (instead focussing on current beliefs and practices) but it is assumed he agreed.  
(5)	Fink referred to these “little people” as “mungawari” and wrote that they lived in a spirit centre in a hillside cave and that they played a part in the initiation and training of “djinagabi” men by a “maban”.  Kingsford’s writings contain a more extensive discussion of what he referred to as “mungawari” or “wirlugarli” (in Wajarri) and “mudinggura” or “muradyi” (in Badimia).  Kingsford indicated a fairly wide range of views and “local elaborations” about them although, similarly to Fink, he said they usually live “inside a hill with a cave entrance”.  He also said that they are “prone to mischievous or malefic acts”, although they could act as a “guardian angel” for someone and “impart new songs to men in dreams”. 
(6)	The name “wurdaji” did not feature in the evidence about spirits in the claim area at sovereignty.
389		As to magic and sorcery:
(1)	As to mabarn, Dr Brunton was of the opinion that, at sovereignty, it was “virtually certain” that people in the claim area “believed in the existence of human beings with powers to perform extraordinary feats in order to achieve individual or collective objectives”.  According to Dr Brunton and Mr Robinson, the concepts of mabarn are found throughout Australia, with the same or similar term used in many other parts of Western Australia.  Bates also discussed the existence of “mobarn” (the “possessors of magic, or sorcerers”) in the Murchison region. 
(2)	As to jinagabi, Mr Robinson did not specifically address whether the existence of, or belief in, jinagabi or “featherfoots” was a pre-sovereignty one.  Instead Mr Robinson focused on current beliefs and practices.  In Dr Brunton’s opinion the position at sovereignty in respect of jinagabi in the claim area was not clear.  In an article on footwear in Aboriginal Australia, Davidson discussed feather or “kurdaitcha” shoes, suggesting that traditionally they had been confined to an area of central and eastern Western Australia, but that they were diffusing westward, reaching Kalgoorlie from the north-east by 1939.  However, Fink referred to a supposed sighting of a “djinagabi” expedition by one of her Wajarri informants in 1910.  Dr Brunton noted that the word jinagabi appears to have derived from a Western Desert word meaning literally “foot‑tied” referring to the emu feather shoes worn by this kind of sorcerer. 
390		As to ceremony and ritual:
(1)	Dr Brunton noted that detailed information about ceremony and ritual in the claim area was not available, but that a combination of available material and inference from widespread practices in other areas enabled some conclusions to be drawn. 
(2)	As to initiation and corroborees, there is a significant corpus of information about initiatory practices and beliefs in the claim area at sovereignty. That information was set out in detail by Dr Brunton and Mr Robinson.  The procedures were complex. Male initiation rites were practiced, as were other procedures, such as tooth evulsion, nose piercing and cicatrisation.  Milgu songs were performed and initiation was the context for the transmission of knowledge about country, the Law and secret sacred paraphernalia. 
(3)	As to totemism, Bates stated that totems were important in the Murchison region and she identified two types: “kordorn” (inherited patrilineally) and “ngalangu” (attributed upon initiation).  Kordorn were generally edible in nature and each estate group had a special place or places on their ground (called “maiamba”) at which rituals were enacted to increase the availability of the totem item. 
(4)	As to propitiation rituals, Mr Robinson was of the opinion that “increase sites may not have been a major part of Badimia culture and did not play the role that they play in the Pilbara, for example, where they were at the heart of traditional estates”.  Dr Brunton was critical of this opinion, saying that it appeared to him that Mr Robinson was simply assuming that, because increase sites are of little significance now, this would have been the case at sovereignty. 
(5)	Dr Brunton (correctly in the State’s submission) said the ethnographic evidence was “consistent with a situation in which increase sites were significant focal points of local organisation” at sovereignty. 
(6)	Dr Brunton’s view was that Bates’ material indicated the “crucial” role that increase rites were believed to have in maintaining natural processes.  He found that the data of Bates (and Kingsford) “despite its shortcomings, is at least consistent with a situation in which increase sites were significant or focal points of local organisation”.  Dr Brunton was of the opinion that an estate group’s relationship with its estate would have been founded on, relevantly, people’s obligations to maintain the interconnections and continuities between human society, the natural world and ancestral spirits and their totemic manifestations through ritual activity, which would have included increase rites. 
391		As to marriage practices:
(1)	Dr Brunton was of the opinion that, at sovereignty, the people of a substantial part of the claim area used a modified Kariera type system of marriage rules in which preferred marriage was with classificatory cross‑cousins.  The system was modified in the sense that while the Kariera system did not restrict marriage between actual cross‑cousins, the system in that part of the claim area did.  
(2)	For instance, Bates, referring to the rules applying in a large number of areas in the Upper Murchison, including the Mount Magnet district and the Fields Find district, stated that marriage had to be between a man and woman who were classificatory cross-cousins. However, although actual cross‑cousins (children of opposite sex siblings, for example, a mother’s brother’s children and father’s sister’s children) were in the appropriate “marrying class” (that is, section) in relation to each other, it was forbidden for them to marry.  Further, while it is unclear whether he was referring to all Yamatji people or just the Wajarri, Kingsford’s account is consistent with this, stating “a man should marry a woman who is a daughter of a distant maradyi [father’s sister] and ganggu [mother’s brother], and further removed from him than second cousin”.  
(3)	Mr Robinson agreed that the existence of such a modified Kariera system at sovereignty was likely, but ultimately said (wrongly, with respect, given Dr Brunton’s findings) “there is nothing in the literature to indicate what the traditional Badimia system of marriage was like”. 
(4)	Dr Brunton was of the opinion that sister exchange may have been a preferred form of marriage in the claim area at sovereignty.  For example, both Kingsford and Fink referred to it as a preferred form of marriage in the past, with Kingsford stating that it often showed up in his genealogies.  Bates also made a general reference to the exchange of sisters in “the Northern districts” and, from other remarks she made, this would presumably have included the Murchison region. 
(5)	Dr Brunton also considered that interpersonal behaviour between particular categories of kin (such as a man and women who stood in the relationship to him of actual or potential wife’s mother and a man and his actual or classificatory sisters) would have been governed by formal rules, such as avoidance rules, which were strictly observed.  For instance, Bates recorded that bald men were believed to have ignored the avoidance rule with their mother-in-law and recorded instances of the embarrassment that bald men in a number of locations evinced, including in Yalgoo close to the claim area.  Both Fink and Kingsford also refer to such avoidance rules. 
392		As to a section system:
(1)	Bates identified three different section systems in operation in different parts of the claim area, as well as the Noongar semi-moiety system, which she identified operated around Lake Moore.  Dr Brunton gave a detailed account of the various systems in his first report.  Dr Brunton considered that the presence of section systems was of some antiquity and the existence of different systems meant either that there were several different Aboriginal groups in occupation of the claim area at sovereignty or that post‑sovereignty movement of different groups had occurred between sovereignty and the observations of Bates in 1908 to 1912. 
(2)	Mr Robinson agreed that section systems were a part of sovereignty social organisation in the claim area but are not now. On this basis, he said it was not possible to know if they were a “well-established feature” of traditional society at sovereignty. 
393		As to death and funereal practices: 
(1)	Dr Brunton noted that Bates provided a significant amount of information about methods of burial and funerary practices in the Murchison.  She recorded that the practices varied between “tribes” and also between estate groups within “tribes”.  In relation to the claim area Bates observed, for example, that “the Wajari people of Mount Magnet buried their dead with the head to the east, feet west, eyes looking towards the west”, whereas other groups in neighbouring areas, including Yalgoo, Mindoola and Sanford River, had different variations.  The variations involved matters such as the directions in which the head and feet were placed, whether the body was seated or lengthwise, whether the limbs were broken, the shape of the grave, the placement of utensils or weapons and heaps or semicircles of earth in relation to the grave. 
(2)	Bates also suggested that in cases where people died in the country of other groups their feet were placed in the direction of their own country. The reason for this was said to be the belief that a person:
must first go to his own home, before he can start for the home of the dead. If he did not he might find himself in the camp of some strange tribe. Hence every native likes to die on his own ground as his spirit will know the way from there to the country where all his dead relatives are. When the spirit comes out of the grave it goes where the feet point.

(3)	Other laws and customs Bates recorded in the region include the daubing of the deceased’s relatives in mourning colours, the cutting off of the widow’s hair (which was later spun into string) and the recitation by older men of words designed to ensure the spirit of the deceased left and did not trouble the living.  Bates noted that there was no custom of food abstinence following the death of a relative, except from the totem of the deceased (if it was a bird or animal). 
(4)	Mr Robinson did not address the nature of burial or funerary practices at sovereignty in his evidence.  Instead he reported some current beliefs and practices.
394		As to hunting and gathering: 
(1)	Mr Robinson and Dr Brunton agreed there was little available data about the traditional economy in the claim area, but that by inference it would have been similar to other Aboriginal groups and would have included hunting, gathering and the manufacture of tools and weapons, as well as perhaps some trading of raw materials and manufactured items.  Archaeologist Esmée Webb identified at least 174 species of plants which would have been exploited by Aboriginal people in an area including the north-west of the claim area. 
Claimants’ reply submissions
395		 In reply to the State’s extensive “social group” submissions, the claimants note and submit that:
(1)	The State submits that in the claimants’ submissions, three different and contradictory versions have been presented as to the identity of the native title holders.  In reply, the claimants submit that the State has misread the claimants’ submissions on this issue.
(2)	The claimants respond below to the State’s submission about its alleged confusion over the claimants’ “pleaded case”.  The Aboriginal evidence is consistent with Mr Robinson’s expert anthropological evidence which is in turn consistent with the case as pleaded in the claimants’ SFIC.  It beggars credibility for the State to submit that it is not at all clear who the claimants submit are the native title holders or who they are referring to when they use the descriptor “Badimia people”.
(3)	The State is critical of the fact that Mr Robinson stated that it was not possible to provide a precise number for the Badimia social group who are the members of the Badimia “society”/claim group.  Although Mr Robinson was not able to provide a “precise number”, he did offer the opinion that at any given time, the group would not number more than 500 people. 
(4)	The State is also critical of the fact that the Aboriginal witnesses were either unsure or “gave wildly conflicting accounts of” how many members of the social group there are.  With respect, the potential for difficulties of communication when asking questions about an Aboriginal witness’ beliefs as to how many people may acknowledge and observe Badimia traditional laws and customs are obvious.   Furthermore, there is no requirement that the members of the Badimia society know how many members of the society there are, let alone their identities.  In Harrington‑Smith at [1286], Lindgren J referred to the High Court’s use of the term “society” in Yorta Yorta at [49], [50] and then went on to make the following important observation:
These passages suggest that for a society to exist for present purposes, there is no essential element apart from a number of people who acknowledge and observe the same body of laws and customs.  It is not necessary, for example, that they be aware of their number or identity.

(5)	The claimants rely upon their submissions otherwise in relation to the State’s submission that:
(a)	there has been no continued observance of traditional laws and customs according to the historical and anthropological evidence;  
(b)	having regard to the limited number and the identity of the witnesses called at trial the claimants have failed to define the present day “society” by putting forward two different versions – the social group and the social category; 
(c)	there is a large majority of people descended from the named apical ancestors who do not acknowledge and observe traditional laws and customs to maintain a “society” or a normative system;  and
(d)	Mr Robinson’s report can only be of limited value because it is based on a very small number of informants, many of whom were witnesses at trial.
396		The claimants also say in reply:
(1)	The State submits that the correct approach to establishing the content of traditional law and custom at sovereignty is that which was taken by Sackville J in Jango, namely, “traditional law and custom is to be assessed at sovereignty by anthropological and historical evidence”.  The State submits that contemporary Aboriginal witnesses may be expected to give evidence that they acknowledge and observe laws and customs handed down to them by their parents, grandparents or other ancestors, however, as Sackville J “correctly observed” that evidence, even if it reflects the genuine beliefs of the witnesses “does not of itself establish that those laws and customs are traditional in the sense required by Yorta Yorta” (quoting from Jango at [460]).
(2)	The claimants have emphasised the words “does not of itself”, because later in the judgment, at[504], Sackville J makes it clear that the Aboriginal evidence may be an important consideration in determining whether an inference may be available that the laws and customs described by the witnesses have remained substantially intact since sovereignty, or at least that any changes have been of a kind contemplated by pre‑sovereignty norms.  The anthropological evidence may also, when taken in conjunction with the Aboriginal evidence, assist in enabling the Court to draw the necessary inference as to the content of pre-sovereignty law and custom: see Jango at [462]. 
(3)	As both Jango at [504] and Gumana at [194]-[202] demonstrate, if the Aboriginal evidence consistently favours a particular set of laws and customs and there is a belief that those laws and customs have “always” been acknowledged and observed, that evidence, on its own, may be sufficient for the Court to infer that the laws and customs described by the witnesses have remained substantially intact since sovereignty or at least that any changes have been of a kind contemplated by pre-sovereignty norms.  In Griffiths v Northern Territory of Australia [2006] FCA 903; (2006) 165 FCR 300 at [484], Weinberg J said that: “The fact that the members of an indigenous community all adhere to the same basic tradition, and observe customs passed on to them by their forbears, is, of itself, significant.  It tends to suggest continuity and long-standing connection”.
(4)	The Badimia people’s tradition is oral and the historical and ethnographic record for the claim area is limited and incomplete.   In those circumstances, it is inevitable that the claimants would ask the Court to draw inferences from the proved facts in relation to the situation at sovereignty.  In this case, it is submitted that the Aboriginal evidence, the anthropological evidence and the historical evidence (including the evidence of long-term Aboriginal occupation of the claim area) when combined with the fact that the rights and interests presently possessed are likely to have been the same as the rights and interests which were possessed at sovereignty,  provide a firm basis from which the Court can draw the necessary inferences as to continuity of the relevant society and of that society’s traditional laws and customs.
397		As to the State’s submission that Mr Robinson’s evidence on the system of local organisation at sovereignty was inconsistent, the claimants note that: 
(1)	The inconsistency, so‑called, is more apparent than real.  It reflects the difficulty of reaching a firm anthropological opinion about the existence of estate groups where the available ethnography is so slight.  Mr Robinson has said that Bates’ work suggests that rights in land were held at the higher level of the “tribe” or language group and that groups of kin who together identified themselves by a language label exercised rights over a common territory associated with that language.   He stated that such a land-owning system “meets what the Badimia themselves say about their rights in land”.   The difficulty relates to whether or not the Badimia, at sovereignty, also had an estate or estate-like system of organisation. 
(2)	The State submits that Mr Robinson did not, in his oral evidence, express a firm view about the nature of the landholding system at sovereignty and simply speculated that it may have been somewhere between the “patrilineal” estate groups of the Gascoyne and Pilbara and the more fluid system of the Western Desert.  The State cites Mr Robinson’s oral evidence.
(3)	Firstly, Mr Robinson characterised the local groups or estate groups of the Pilbara and Gascoyne as “patriclans” or “patrifilial”, not as “patrilineal”. Secondly, Mr Robinson, in his oral evidence, stated that he was not of the view that, at sovereignty, the Badimia recognised or followed an estate group model of local organisation.  Mr Robinson explained that the Badimia are located between two “zones” of social organisation between the more strictly defined estate groups of the Pilbara and Gascoyne and the much more open-ended system of the Western Desert:
So, I suspect that there may be a combination of elements of all of these features that, well, certainly in terms of estate groups there’s an emphasis on lineal descent.

But it doesn’t seem to have coalesced as it does in the Pilbara into patriclans associated with defined increase sites as you get classically in the Pilbara region and in parts of the Ashburton.

(4)	Mr Robinson went on to say that in his first report he was trying to explain, perhaps inelegantly, that, by analogy, one would expect to find something resembling estate groups within the claim area at sovereignty but there is no direct evidence of this.   In saying now that he would come down on the side of there not being clearly defined estates he agreed that, perhaps, he has shifted somewhat in his view having had the opportunity to consider the evidence more closely.   Mr Robinson’s opinion is that the kind of land tenure which applied in the claim area at sovereignty was not as structured as in the Pilbara area but partly resembled, at least, the Western Desert model of land tenure.   In this regard, Mr Robinson was particularly struck with the fact that Bates’ genealogies do not identify any individual as belonging to a local group in the claim area whereas her genealogies further north very often indicated that an individual did belong to a local group. 
(5)	Mr Robinson went on to explain that even in other areas where there was an estate group model of local organisation, although the presumptive rule for membership of an estate group was patrifilial, “there were exceptions”.   He said that even as early as Radcliffe-Brown’s work, Radcliffe‑Brown had commented that groups in the Pilbara, for instance, inherited rights in clan estates through their fathers but they also had rights in their mothers’ country.  That is, there were bilateral rights both on the father’s side and on the mother’s side.   Mr Robinson added, that in his experience, where the estate group model operates, people “are quite ready to accept connection through matrifilial links”.   Both Mr Robinson and Dr Brunton agreed that in circumstances where a child’s father was white, the Aboriginal mother would emphasise her child’s connections with the mother’s father’s country.   Mr Robinson’s evidence was that even if an estate group model applied in the Badimia claim area at sovereignty, a person’s rights and interests would not have been limited to the area of a single estate.   People would have had rights and interests in an estate where they had kin or affines. 
(6)	Dr Brunton said that in circumstances where there was not an available patrifilial connection with an estate, a matrifilial connection would operate to assign rights and interests in the estate although it would later be “masked”.   Similarly, over time estate groups would become extinct and “succession” would occur but that could be “masked too”.   Dr Brunton also agreed with a proposition put by the Court that the geographical area of an estate group or local group may have fluctuated over time. 
(7)	It is submitted that even if there were estate groups in the claim area at sovereignty, the evidence of both Mr Robinson and Dr Brunton shows that, native title was not held at the estate group level.  The situation would have been more complex than that. In Neowarra, the State submitted that native title was held at the level of the estate group (“dambun”) and not at the level of the community as a whole.  Sundberg J, at [386], found that there was an emphasis on shared customs and traditions that transcended the particular estate group area with which individuals were associated.  His Honour rejected, at [387], an estate-based formulation of the native title rights and interests:
It will be recalled that, assuming native title is found to exist, the respondents submit that it should be recognised at a dambun, or perhaps a language, level.  Professor Sansom’s evidence was directed to these alternatives.  A dambun based determination would not reflect the evidence that individual members of a dambun have kinship links with dambun other than their own.  It would not reflect the succession laws, namely that on the death of the last member of a dambun, a neighbouring clan will take over the country, including the rights and interests in it.  A dambun formulation of native title would see the title expire on the death of the last member, which is not what happens.  A dambun formulation would not accommodate the evidence that close relatives of dambun members have rights and interests in the land. 

(8)	The State submits that the Court is required to make findings about the laws and customs under which rights and interests in land were acquired and transmitted at sovereignty and if the Court cannot identify those laws and customs then the application cannot succeed.  The State maintains that the Court should find, on the balance of probabilities, that there was a system of local estate groups which operated in the claim area at sovereignty and it was under those laws and customs that rights and interests in land were acquired and transmitted. The claimants repeat the reasons why the Court should reject that submission.
(9)	Firstly, in this case, as discussed above, Mr Robinson’s evidence was that the system described by Bates, under which rights in land were held at the level of the “tribe” or language group and under which groups of kin who together identified themselves by a language label exercised rights over a common territory associated with that language, is consistent with what the Badimia themselves say about their rights in land.   In his opinion, there were no Badimia estate groups at sovereignty.   If there had (also) been a clan-based estate system at sovereignty, the move to a more broadly based system can be regarded as an adaptation of the original system as it is still based on the principle of descent.   In any event, as discussed above, even in a local estate group system, people’s rights and interests would not have been limited to the estate of their father.  Native title would not have been held at an estate group level.
(10)	Secondly, it is submitted that the anthropological debate as to whether there were or were not patriclans or some other or similar form of estate group within the claim area at sovereignty is a sterile one.  In Daniel v State of Western Australia [2003] FCA 666 (Daniel (2003)) at [334], Nicholson J made the important point that ss 223 and 225 NTA do not require the Court to search for an anthropologically identified form of community or group. The Court must examine the evidence to see who holds native title, if anyone, and if so, whether there are communal, group or individual rights and interests.  His Honour there said that anthropological theory and research “may inform that examination but cannot determine it”.  His Honour went on to say, at [339], that neither the NTA nor the reasoning of the High Court in Yorta Yorta “is shaped in relation to anthropological considerations concerning estate groups or other similar entities”.
(11)	In Daniel (2003), Nicholson J (at [420]) rejected the submission that native title connection is to be established through the existence of what the anthropological evidence described as “estate groups” or “local estate groups”.  His Honour considered that what is required is to look to the evidence and particularly the lay evidence relevant to connection, without the intervention of other constructs.  The findings of connection are to follow from the evidence rather than such constructs.  On appeal (Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148), the State contended that his Honour had erred in failing to determine what were the laws and customs relating to land acknowledged and observed by the Ngarluma people at sovereignty (at [332]):
At trial, the State contended that land ownership in the claim area resided in local patrikin estate groups.  This was the traditional law and custom relating to land.  The work of the anthropologist Professor Radcliffe-Brown, it was submitted, established as much.  The State submitted that his Honour was required to determine what were the laws and customs relating to land acknowledged and observed by the Ngarluma people at the acquisition of European sovereignty, and then to determine whether those laws and customs or a modification or variation of them were continuously acknowledged and observed to the date of hearing.  His Honour should have found that land was held at the acquisition of European sovereignty by estate groups of patrikin.  Had he done so he would have been compelled to the result that neither the laws nor customs governing at the time of the acquisition of European sovereignty nor any variation or modification of them applied in the Karratha area at the time of the hearing.  Consequently, so it was submitted, his Honour should have concluded that the Ngarluma people had not established continuity in the acknowledgement and observance of the laws and customs relating to land. 

(12)	In its consideration of this contention, the Full Court first noted, at [333], that the primary judge had rejected the estate group thesis as determinative of issues of group, of continuity and of connection in the passages which are reproduced in the Full Court’s judgment at [272]. The Full Court made no criticism of that approach.  Their Honours then went on to say, at [335], that the primary judge then took two steps in his reasoning.  First, he identified the views of the claimants and the State’s respective anthropologists in relation to the Radcliffe-Brown thesis about the existence of patrikin estate groups. The primary judge found that the claimants’ anthropologist’s views differed from the Radcliffe-Brown view and the State’s anthropologist’s view left open a full consideration of all the evidence.   The second step taken by the primary judge was to conclude that the controversy did not need to be resolved because an anthropological opinion could not determine the matter.  Rather, it was necessary for the Court to have regard to the evidence as a whole (at [335]).   The Full Court said that there was no error in this approach.   The Full Court, at [338], then went on to make the following important point:
In several recent cases the Court has found that a number of estate groups or sub groups have together formed the native title holding community or group.  These cases have rejected the argument now relied upon by the State that the land holding community or group was at the estate group or sub group level.  Whilst this question is one of fact to be determined in each case on the evidence, the authorities are a useful guide to the relevant issues to be considered.

(13)	In each of the authorities to which the Full Court referred at [339]‑[343], the Court has found that it was the claimant community which held the native title rights and interests rather than the estate groups or other sub-groups into which the community may be divided.   The Full Court went on to note that in that case, the primary judge analysed the evidence relating to the groups which held the native title rights and interests and rejected the contention that they were held at the estate group level.  Their Honours said that the primary judge’s approach was consistent with the authorities to which they had referred and there was no error in his approach. 
398		As to the State’s submissions concerning other laws and customs, the claimants say in reply, in addition to their primary submissions: 
(1)	During the concurrent evidence and in response to a question put by the Court, Mr Robinson described the fundamental beliefs and practices of the Badimia people which tie the present in with the past.   In Neowarra at [229], Sundberg J made the point that under the definition in s 223(1), it is not the laws and customs that must be in relation to land or waters, but the rights and interests that are possessed under those laws and customs.  Furthermore, as the Full Court noted in De Rose (No 2) at [60], given the centrality of the relationship between Aboriginal people and their country, any dichotomy between traditional laws and customs connected with rights and interests in land and waters and those that are unconnected with such rights and interests, may be difficult to establish.  In this case, the claim group members’ rights and interests in relation to and their connection with, the land and waters of the claim area, are underpinned by their traditional beliefs that the country is imbued with the presence of the spirits of their ancestors and other important spiritual entities and beings.
(2)	The State at several places makes the point that some of the Badimia laws and customs are not necessarily distinctive of the Badimia people but are laws or customs which are the same as or similar to the laws or customs of other Aboriginal people.   It is submitted that there is no requirement in s 223(1) that, in order for a belief to be a law or custom of a group, it must be distinctive of them, in the sense that no one else has that law or custom: Neowarra at [182]; Jango at [350]; Risk at [837].
The “pleading” point 
399		As to the State’s contention that the claimants have advanced a case after the hearing, based on Mr Robinson’s final analysis, contrary to that articulated in the Form 1 application, for the Court, the reply submissions made on behalf of the claimants have force.  
400		It may well be said that, if not always, then it will often be the case, on the hearing of a claimant application that there will be many persons shown on a set of genealogies who are descended from a particular apical ancestor but who, on their own, could never prove the existence of native title.  Here, the claimants necessarily rely, to prove their native title, on those persons who are descended from a Badimia apical ancestor and who, by Badimia law and culture, maintain connection with the claim area by what they say are traditional laws and customs; as they say Badimia people have done since sovereignty.  
401		The State contends that the the substance of the application is that the social category of Badimia people referred to by Mr Robinson are the holders of native title, not the core group that he identified (and relied on), and the claimants should not be permitted to depart from the case as put.
402		Ultimately, the construction by Mr Robinson of a “social category” and a “social group” of Badimia people is a means of emphasising the evidence of claimants that a core group of Badimia persons have maintained a connection with the claim area by traditional law and custom since sovereignty, even though many have not.  
403		A difficulty that possibly arises, to which the State points, is how a court would identify the holders of native title with a continuing connection by traditional law and custom to the claim area, in the event the Court were to determine that native title exists in such a case.  
404		For present purposes, however, the Court accepts the propositions put in the reply submissions of the claimants.  As noted, there are indeed many circumstances where, in a native title claimant proceeding, genealogies or genealogical evidence provided in the course of the proceeding identify many potential members of the claimant group.  The evidence in such cases typically focusses on the group as a whole in respect of whom particular witnesses are seen to be representative.  And in that regard the claimants’ SFIC, application or pleadings in the proceeding have not misled the State about the substance of the case put.  It was never suggested all Badimia descendants maintained a relevant connection to the claim area.
405		In this case, it would appear that the real burden of the State’s submission is that the Aboriginal claimant witnesses are not representative of the group as a whole.  That may be an important issue, but it is one that goes primarily to the question of whether there is a “society” of native title holders who have maintained a relevant connection with their traditional country without interruption since sovereignty.
406		The point ultimately made on behalf of the State, is that at least in a case where there is only a small, interrelated group of persons who might be shown to follow the traditional ways of a predecessor society, but the group for whom native title is actually claimed is quite large, the Court might conclude that, as a matter of fact, there is no normative system that governs the present “society” and which gives rise to the claimed rights and interests.  Alternatively, that if the current laws or customs in this regard are normative, they are quite different from those which applied at sovereignty and so are not “traditional” for the purposes of s 223.  These questions, in the Court’s view, are the relevant issues that arise from Mr Robinson’s social group/social category distinction and the State’s submissions on this topic.
407		The fact that there may be many descendants of Badimia people who cannot, by themselves, establish a relevant connection with the claim area, may also be relevant when assessing whether or not there truly is a current community of Badimia people who continue to maintain a connection with the claim area by traditional laws and customs.  The fact that there may be many Badimia descendants who cannot make out such a connection does not necessarily mean, however, that there is not now, and has not been, since sovereignty, a relevant traditional society.  That many persons may today identify as the descendants of Badimia people does not automatically lead to a conclusion that native title cannot be proved under s 223 NTA.  
408		The proceeding is not to be determined therefore on the State’s “pleading” point.  The circumstances that presented themselves in Jango do not, in the Court’s view, present themselves here.  
409		In summary, contrary to the State’s submission that the claimants have pleaded the social category holds native title, but have run their case on the basis that a more limited social group actually does so, and therefore the proceeding should be dismissed on this basis, the Court does not consider this to be so.  The Court agrees, however, that the point about the social group/social category distinction highlights other relevant issues, especially continuity.
Consideration of substantive question
410		The substantive question that remains, therefore, is whether the laws and customs the claimants presently rely on are “traditional” in the sense they are rooted in sovereignty laws and customs.
411		In that regard, the contemporary primary rule regarding native title rights and interests is, as agreed all round, that all Badimia people (at least those in the social group) have rights to speak for country, with preference being given to elders (necessarily in the social group) who are notionally associated with particular areas of country; the persons or families with such preferential rights being those with localised knowledge of country who have been referred to in the above submissions of the claimants.  
412		The question immediately arises whether a similar rule applied at sovereignty, or the current rule may be seen as an acceptable adaptation of a sovereignty rule about the right to speak for, and use, country, so that it can be said that the current rule is rooted in the pre‑sovereignty one.
413		In some circumstances, as indeed found in Banjima People v State of Western Australia (No 2) [2013] FCA 868; (2013) 305 ALR 1, the evidence before the Court enables the Court to infer that the current arrangements (in that case, two localised groups) reflected the inferred sovereignty “estate” or local group arrangements whereby people derived rights and interests to speak for country.
414		Mr Robinson, endeavouring helpfully to essay the broader anthropological literature, suggested that the claim area at sovereignty might have fallen within a broader Murchison area where the anthropological position was not clear.  
415		The Court does not accept, however, that there is adequate or sufficient evidence upon which to justify this sort of arrangement at sovereignty.
416		There is nothing in the evidence here, apart from the claimants’ direct evidence, to suggest that, at sovereignty, Badimia people as a whole enjoyed what might be described as a communal right over the whole of the claim area, such that any Badimia person (or elder) could speak for any localised area within the whole.  
417		There is, for example, little other clear evidence, preceding contemporary times, which suggests that the current expression of the rule by which people gain the right to speak for and use country has applied at earlier periods, say in the 1980s (in Kingsford’s research period), or the 1950s (in Fink’s research period), the 1930s (in Tindale’s and Davidson’s research period), or at the turn of the 20th century (in Bates’ research period).
418		Such evidence as there is, suggests that was not the case.  While Mr Robinson discounted the data of Kingsford from the 1980s, it lends some support to the idea that indeed there was some local group responsibility to speak for sites – in that case an important men’s site for which Joe Benjamin apparently had responsibility.  This evidence is not by any means unequivocal in suggesting that estate groups/local groups existed, and may be consistent with a view that, by Aboriginal Law, certain men had responsibility to speak for certain sites perhaps derived from one’s father or by birth (or both).  But it does lend some support for the view that not all Badimia people customarily spoke for all parts of country.  
419		The work prior to Kingsford, of Fink, Tindale and Davidson, does not particularly assist in relation to this issue.  
420		Mr Robinson rejected the suggestion that the data assembled by Bates helps in this regard.  He made the point that she does not in her materials disclose that any particular person is a member of an “LG” (local group) in this broader area, as for example some of her materials from the Pilbara signify.
421		Be that as it may, her materials, as Dr Brunton has suggested, do disclose associations of her interviewees with particular areas in the vicinity of the claim area – which materials have been referred to in discussing apical ancestors above.  Bates received information from an old person on Rottnest Island, Bauljara, for example.  Amongst other things, he purported to describe his own country, and a map purporting to depict it was drawn by Bates.  When the Bates’ data is considered overall, it is not focussed on this issue, but certainly it does not support a view that all Badimia people spoke for all of their country at the turn of the 20th century.
422		The Court takes into account the received anthropological wisdom, which has been discussed by both Mr Robinson and Dr Brunton, that local group organisation was a familiar feature in much of Aboriginal Australia, and primary native title rights and interests to speak for country were allocated by reference to local group organisation – which was Mr Robinson’s starting point in his first report.  Weighing this consideration with all the other evidence (limited as it is), the Court is led to infer that at sovereignty it is probable that some form of local group organisation possibly operated and gave rise to the primary native title right to speak for parts of Badimia country, protect sites and the like, independent of any right Badimia people had to use Badimia country economically.
423		One of the difficulties in dealing with this issue is that the data, both historical and more contemporary, of the ethnographers, and the claimant evidence is limited in the case of the former, and largely speculative, in the case of the latter.  Thus, the submission initially made by the State at the outset that the claimants have failed to prove the pre‑sovereignty rule for allocation of rights and interests in the claim area.
424		But, as I say, when the evidence is taken overall, including the discussion in Mr Robinson’s first report and the reference by Professor Berndt to a distinct Inggada-Badimia-Widi estate group structure, the inference there was local group organisation giving rise to primary rights to speak for country is justified.
425		In the event of such a finding, the claimants say that there is no reason to think the current articulation of the right to speak for country, is not rooted in such sovereignty structure.  The difficulty with this submission, however, is that there is little evidence in effect to piece together the evolution of a sovereignty rule through to the current rule, even by inference.  It is difficult to conclude, on the facts presented in this case, that the contemporary rule as to who can speak for country is an acceptable adaptation of the inferred sovereignty rule.  For example, there is little to show what social organisation there was amongst Badimia ancestors at about the time Bates, for example, was acquiring data in the region or indeed later into the 20th century, and how it adapted into the current rule.
426		The evidence does not show in any sufficient detail what Badimia social organisation entailed in the 1980s, for example, when Kingsford was conducting his research, or in the 1950s, when Fink was doing hers.  Similarly, Tindale’s work and Davidson’s does not shed light on this question.  Nor does the evidence of the claimants.
427		We know from Fink’s work that she dealt with Badimia people.  They were, however, residing outside the claim area.  We gain no understanding as to the extent of a distinctly “Badimia” cultural life, as compared with people who identified as Badimia people and who were possessed of cultural knowledge.  Nothing useful appears concerning the right to speak for country.
428		We may infer that, from Bates’ time, some old Badimia people remained on pastoral stations, as the findings above about some of the apical ancestors suggest, but we know little about what the rules concerning country rights were then, amongst a “Badimia” community.
429		The difficulty for the Court also is that the evidence discloses that many of the apical ancestors relied upon by the claimants to help prove the continuance of a distinctly “Badimia” community in the pastoral station period, were not Badimia; and there are related issues about the extent to which all the claim area was traditional Badimia country, in relation to which the Court has not been satisfied.
430		By inference, the estate/local group organisation, likely to have existed at sovereignty, collapsed, but the evidence does not enable the Court to infer what adapted rule Badimia people then, if any, adopted.
431		There is evidence from claimants today of stories that speak to the Dreaming, when the Aboriginal world was formed, and about other spirit creatures, as well as cultural practices that respect the Bimara, and hunting, gathering and land and water protection, none of which the Court doubts as to its authenticity (as explained in the following section in more detail).  However,  the Court is not satisfied that these stories and practices arise from a normative system of Badimia law and custom that has continued since sovereignty.
432		Rather, the Court infers that at some point in the past, probably in the course of the 20th century, a “new” society of people who identified, and identify, as Badimia for explicable historical reasons became responsible for maintaining a connection with what was considered to be Badimia country.  Some of the knowledge of old Badimia people would appear to have been passed on to some people, for example, about the Bimara and some other sites.  
433		When the Court takes account of its findings as to who today, with this knowledge and carrying out cultural practices, can trace their ancestry to Badimia people who may be inferred to have been in occupation of parts of the claim area at sovereignty, and related problems in showing which parts of the claim area were traditional Badimia country at sovereignty, the difficulty in proving that the rights claimed, to speak for country and to use country economically, arise under laws and customs rooted in sovereignty Badimia laws and customs is revealed; as is the difficulty, discussed further below, in proving that laws and customs rooted in sovereignty laws and customs have been acknowledged and observed by successive generations of such a Badimia society.
Summary of finding whether “traditional” laws and customs
434		For these reasons, the Court is not satisfied that the laws and customs of the claimants under which they presently claim rights and interests are to arise, are “traditional” as required by s 223 NTA.
435		This finding is also closely allied to the finding made, in the following section, that the claimants have not established that successive generations of Badimia people since sovereignty have continued to acknowledge and observe traditional Badimia laws and customs.
HAVE THE CLAIMANTS MAINTAINED A CONNECTION WITH THE CLAIM AREA BY TRADITIONAL LAW AND CUSTOM?
436		The State contends continuity is not made out having regard to the concerns identified in the preceding section and also by reference to a broader set of historical facts.
437		As explained in the preceding section, proving the “traditional” character of Badimia law and custom since sovereignty is an obstacle for the claimants.  
438		So too is the related or overlapping challenge of proving the continued acknowledgement and observance by each generation of Badimia society of their traditional laws and customs since sovereignty.
State’s submissions
439		The State contends continuity from sovereignty to the present is not proved for the following reasons:
(1)	Having regard to the historical and anthropological evidence, and evidence from Aboriginal people, in relation to the continued acknowledgement and observance of traditional law and custom in the claim area, from sovereignty up to the late 20th century, it is beyond doubt that the Aboriginal people of the claim area were heavily impacted as a result of European settlement, by alienation of the land, economic dependency and government policies and action.  
(2)	The anthropological literature from the 1950s to 1980s does not provide support for an enduring acknowledgment and observance of traditional law and custom in the claim area.  Rather, the submissions below demonstrate that it has the opposite effect: it reports a loss or abandonment of traditional law and custom.
(3)	The State accepts that some knowledge of traditional law and custom relating to the claim area survived into the 20th century.  However the evidence reviewed below leads to the conclusion that, even by the start of the 20th century, acknowledgment and observance of traditional law and custom had greatly diminished and continued to rapidly decline.  It may be that among some Aboriginal people in the claim area there was a greater knowledge of, and even acknowledgment and observance of, traditional law and custom into the 20th century than others.  
(4)	The State does not necessarily submit that the historical and anthropological evidence so overwhelmingly demonstrates the cessation of traditional law and custom that the Court could find native title ceased to exist in the claim area at some time during the 20th century, as happened in Yorta Yorta, without even considering the contemporary situation revealed by the evidence from Aboriginal witnesses at trial. However the historical and anthropological evidence referred to below positively establishes a prima facie case that there has been no continued acknowledgement and observance of traditional laws and customs in the claim area from sovereignty to the present, and no continued existence of a society of Aboriginal people. 
(5)	The historical and anthropological evidence does two things.  
(6)	First, it removes the possibility of drawing any inference of continued acknowledgment and observance of traditional law and custom between sovereignty and the present based purely on the contemporary situation.  That is, not only do the claimants have to satisfy the onus of proof, but the evidence of contemporary acknowledgment and observance of traditional law and custom would need to be so compelling that the contrary inference which arises from the anthropological and historical evidence could be overcome.  The contemporary evidence would need to include proof that traditional law and custom continued in the 20th century, not just that it exists now.  The Court would be in error to adopt the alternative approach contended for by the claimants. 
(7)	Second, by evidencing dramatic disruption, depopulation and movement, the historical and anthropological evidence removes the possibility of drawing any simple inference that any of the claimants can trace a genealogical connection to the “society” in the claim area at sovereignty. Again, the claimants must prove any such connection by probative evidence. They have not done so.
(8)	In the State’s submission there could not be a clearer case than this one of the “tide of history” having “washed away any real acknowledgement of traditional law and any real observance of traditional customs” (Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 60). 
440		In this regard, the State submits the following historical evidence emphasises the heavy impact European settlement had on Aboriginal people:
(1)	The first contact made by Europeans with the Murchison region took place along the western seaboard by Dutch, Portuguese and British sailors, but it is not known whether the members of any of the coastal exploring parties ventured inland.   It was not until the 1840s, when much of the useful grazing land in the southern part of the new colony had been taken up, that exploration began to extend to other regions, including the Murchison. 
(2)	The claim area was first explored in 1846 when Augustus Charles Gregory and Francis Thomas Gregory led a survey party from Goomalling up through Lake Moore and on into the Murchison Plateau.  Further exploration parties led by Robert Austin (1854), Nathaniel Cooke (1862), the Monger brothers (1868), John Forrest (1869), HS King (1886) and LA Wells (1896-1897) followed.  While each of these expeditions reported the presence of Aboriginal people in the Murchison region, the language or tribal grouping of the Aboriginal people in the claim area was not recorded. 
(3)	Shortly after the first exploration of the Murchison area, settlement in the region commenced. It was spurred in part by the proclamation of the Land Regulations 1863 (WA) pursuant to which the government offered free pasturage for twelve months to any person interested in selecting up to 100,000 acres of land which could be occupied rent free for three years.   Early pastoral settlement came principally from the coastal strip along the Mid West coast, gradually extending eastward towards the claim area. Movement also came from the south, particularly from properties in the Victoria Plains district whose shepherds took flocks northward in search of pastures.  Informal pastoral settlement, therefore, predated the issue of formal leases.
(4)	This process is apparent in the evidence about the establishment of particular stations in the claim area. For instance, Boogardie Station was established by the Jones brothers who moved a flock of sheep from Walkaway (south of Geraldton) inland to a block near Mount Magnet.  Similarly, the land which would eventually become Wydgee Station was purchased by Robert Broad, a pioneer pastoralist in the Greenough River area.  James Fitzgerald, an already established farmer, took up land to the east and north-east of his existing holdings, establishing what would become Murrum Station.  The lease for Windsor was taken up by Arthur Moses, a prominent citizen of Geraldton.  The leases for Ninghan and Goodingnow Stations were taken up by Gus Clinch, who was from a pioneering farming family in Greenough.  
(5)	The first formal pastoral leases in the claim area were taken up from the early 1870s. In 1873 one of the first pastoral leases in the claim area was granted over what is now Ninghan Station. This was followed by a lease for the land currently the subject of Wogarno Station in 1874. Leases for lands now part of Murrum, Muralgarra and Yoweragabbie Stations were granted in 1875 and in 1879 leases for lands now part of Challa, Edah, Kirkalocka, Nalbarra and Wydgee Stations were granted.  
(6)	European presence in the claim area increased dramatically with a series of gold discoveries beginning in 1887. On 24 September 1891 the Murchison Goldfields were declared in what is now the claim area.  At the time of the declaration there were some 300 to 350 Europeans working on the fields.  Although no evidence was led of the growth in population on the goldfields, it was sufficient that in 1895 the town of Mount Magnet and the District of Mount Magnet were gazetted.  The Mullewa‑Mount Magnet railway commenced operation in 1896.  The railways had stops within what is now the claim area at Mount Magnet, Murrum and Yoweragabbie.  Lennonville was proclaimed a townsite in 1898, and Boogardie in 1898.  Each had its own primary school and bank and each had two hotels. Boogardie also had its own post office.  
(7)	An unavoidable result of the intrusive nature of white settlement was the increase in competition between settlers and Aborigines for land and water resources. Henry C Prinsep, Chief Protector of Aborigines in 1904, writing about the Black Ranges area east of Mount Magnet observed that:
As a principle I do not encourage the natives to hang about the White Settlements, as they are very prone to immorality & drink, but of course I am well aware of how hard it is for them to find a living in the bush, now that the whitefellows have spread about so far, & taken possession of waterholes, & all the best pastureland.
  
(8)	That the pastoral settlement of the region restricted the ability of Aboriginal people to continue to carry out traditional activities was confirmed by Travelling Inspector ECD Keyser, whose comments were included in the Annual Report of the Chief Protector of Aborigines for the year ending 30 June 1909:
While travelling over the Murchison and Eastern Goldfields, I noticed the country was fast being fenced in. The majority of the selected unenclosed land has few permanent waters, consequently, when the season is a dry one, the natives are naturally forced to the station wells. As the natives hunt with a number of dogs, the station owners naturally object to their doing so in paddocks where sheep, more especially lambing ewes, are depastured. When the greater portion of the unenclosed land is fenced and stocked, there will be little room for the native to hunt.
 
(9)	Similarly, the archaeologist Esmée Webb was of the view that the environmental effects of sheep pastoralism in the Murchison on the landscape and vegetation were “devastating”, severely restricting Aboriginal people’s ability to forage.  
(10)	Hence one of the first and most dramatic impacts which European settlement had on the claim area was the forced exclusion of the indigenous population from its traditional territories. The establishment of increasing numbers of pastoral stations gradually encroached on lands occupied by Aborigines, restricting Aboriginal access to those lands. As noted by Mr Robinson, European settlement had an effect on Aboriginal people’s “ability to maintain a fully independent economic life and also disturbed traditional local organisation”. 
(11)	The continuing development of the claim area experienced in the second half of the 20th century and its effect upon the ability of Aboriginal people to access and carry out activities upon the land was also referred to in the Aboriginal evidence.
(12)	Another obvious initial impact of settlement on the indigenous population, observed from the very earliest years of contact, was the disastrous effects of introduced European diseases which, along with violent conflict, caused a decline in population of the Aboriginal people of the region.  
(13)	Frank Wittenoom, one of the region’s early pastoralists, reports, for example, that the Murchison was afflicted by a small pox epidemic which led to many losses while enteric fever, diphtheria and the Bubonic plague were also present in the region.  Aboriginal people were also particularly susceptible to lung disease and influenza. 
(14)	While the precise extent of the initial population decline in the claim area and the Murchison region in general is unknown, in Dr Brunton’s opinion, the number seemed to have been very considerable. Fink quotes AO Neville’s estimate that the Aboriginal population of the south‑west of the State declined from around 13,000 at the time of sovereignty to 1,419 by 1901. While Neville’s figures probably excluded the claim area, Bates’ information from the Murchison also suggests extensive depopulation. Furthermore, the archaeologist Esmée Webb suggested that the region is likely to have supported a considerably larger population than anthropologists have assumed, with densities perhaps as high as those for the people of the Swan Coastal Plain. 
(15)	Another ramification resulting from the deprivation of Aborigines from their lands and waters was their increasing participation in the new agricultural economy as labourers, typically shepherds or station workers.  Fink observed:
Since the sheep had driven out much of the natural game and eaten much of the vegetation, the natives became dependent upon the settlers for food, and they were employed under a system of indenture that bound them to remain on their station and made it a punishable offence for them to abscond.

(16)	By the late 19th century the mining and pastoral industries had entrenched European settlement in the claim area to such an extent that Fink recorded that by 1899 more than three quarters of the Aboriginal population up to 300 miles from the coast were employed by the settlers and had been for “many years”.  Dr Choo was similarly of the opinion that, from the time of first contact between Aboriginal and European people in the area, most of the Aboriginal people living in the claim area were engaged in some way in the pastoral industry. 
(17)	However, although Aboriginal labour was initially integral to pastoral stations, significant changes in pastoral technology and technique as well as changing economic, political and social conditions gradually eroded (and eventually drastically reduced) Aboriginal employment upon stations in the region.  
(18)	For instance, fencing of paddocks and new methods of animal husbandry, as well as a seven year drought in the mid-1930s and shearing strikes in the same period all contributed to reduction of Aboriginal pastoral employment.  
(19)	Further, the introduction of the Federal Pastoral Award in 1968, which required all Aboriginal station workers to be paid award wages, facilitated the decline in Aboriginal employment in the pastoral industry and some stations stopped employing Aboriginal workers altogether after the Act was introduced.  
(20)	According to Ollie George, the number of Aboriginal people on the stations started to drop in the 1960s and got worse in the 1970s.  Roderick Hedlam confirmed that Aboriginal people started to disappear off the stations once the basic wage came in.  Similarly, Beverly Slater gave evidence that her family previously worked on the pastoral stations “because once it was all stationed off you either belonged to a station or you were itinerant”.  However, after the 1960s few people remained on the stations and people “either had to find jobs locally or move completely out of the area”.  The Bell family were the only Aboriginal people Ms Slater knew who currently lived on a station in the claim area.  
(21)	Further, the sale of Goodingnow Station upon the death of Gus Clinch in 1953 resulted in the forced dispersal of the members of the Clinch family from the claim area.  Coral Brockman gave evidence that after the lease was sold her family “had to move away … About ten years later everyone had gone. That’s what my mum told me and that’s how my family ended up in Carnarvon”.  Beverly Slater confirmed this, giving evidence that after being “forced” to move when the station was sold, her family went to Paynes Find, then Wubin and subsequently to Greenough, Pemberton and Perth.  Some members of the Clinch family (the Bells) returned some 40 years later when they purchased Ninghan Station in 1993. 
(22)	The decline in employment opportunities upon stations encouraged Aboriginal workers to drift to Mount Magnet and other nearby towns and by the early 1940s complaints about the “heavy influx of natives” to Mount Magnet began to surface.  This prompted the government to declare Mount Magnet a Prohibited Area in 1945 under the Native Administration Act 1905 (WA), making it unlawful for unemployed Aboriginal people to enter or remain in the township without a permit.  For example, Joan Walsh gave evidence that her family “had to live on the outskirts [of Mount Magnet] because they wouldn’t have Aboriginal people in town”.  
(23)	At approximately the same time, the Mount Magnet District Road Board established a specific reserve for Aborigines on the outskirts of Mount Magnet in which they could reside.  A reserve was also later established at Paynes Find.  Darryl Fogarty confirmed that the Aboriginal people living on the stations “got kicked off and put on reserves in town”. 
(24)	Another impetus for the movement of Aboriginal people around the Murchison (and beyond) was the establishment of specific Aboriginal institutions.  Although government policy was initially to maintain relieving stations and feeding depots for Aboriginal people in their own district, this policy was later reversed with the establishment of various missions, schools and orphanages across the State designed to both protect and control Aboriginal people.  Of particular relevance to the Aboriginal people in and around the claim area were the missions established at New Norcia, Moore River (Mogumber) and Tardun (located about 40 kilometres south-east of Mullewa). 
(25)	One of the more important ramifications of Aboriginal institutions was the dramatic impact they had on the makeup of indigenous families.  Many Aboriginal families were disrupted by the removal of people to various institutions.  This impact was particularly prevalent following the establishment of the large government settlements, such as Moore River Native Settlement, to which hundreds of Aboriginal people were relocated under the Aborigines Act 1905 (WA).  
(26)	 For instance, Ollie George gave evidence that his mother was removed to Moore River, stating that “she had no choice …  We had no – us black fellas we had no choice … We had the government people come along and saw you, they used to run after you and grab you …  Chucked in the car whether you like it or not”.  Coral Brockman also explained that she and her siblings “were taken and became part of the stolen generation that people call it now”.  
(27)	Moreover, these institutions did not solely house Aborigines from adjacent areas, but rather absorbed Aborigines from far and wide.  For example, Olive Gibson gave evidence that people from all over the Murchison, including Yalgoo, Mount Magnet, Cue and Meekatharra, attended Tardun Mission near Mullewa.  Similarly, Aboriginal people were sent in from various parts of the State to Moore River.  Many Aboriginal people, then, were not only removed from their traditional territories and exposed to new and unfamiliar surroundings, but in many cases also found themselves living with Aborigines from distant regions with whom they would otherwise have had no contact. 
(28)	The impact that Aboriginal institutions had upon Aboriginal people of the Murchison was demonstrated by evidence from the Aboriginal witnesses in this hearing.  A number of Aboriginal witnesses had parents or family members who were removed to Aboriginal institutions across the State.  Many of the Aboriginal witnesses, including Ron Bandy, Coral Brockman, Clarrie Cameron, Gloria Fogarty, Olive Gibson, Roderick Hedlam, Percy Lawson, Lance Mongoo, Des Thompson, Alan Walsh, and Frank Walsh Jnr were born at, or resided in, Aboriginal institutions across the State at some point in their life.  Moore River, Tardun and New Norcia figured prominently in the evidence that witnesses gave about their lives and that of their ancestors. 
(29)	The evidence from the Aboriginal witnesses demonstrated a trend of Aboriginal population mobility post-sovereignty. Thus when conducting her work at the beginning of the 20th century Bates realised that the mere presence of individuals at any given camp did not mean that they “belonged to the district where they were encamped”.  Similarly, Mr Robinson observed:
even at that early stage of settlement, of contact, there was a certain degree of mobility with Aboriginal people, particularly in the pastoral industry, where people would be recruited as labour on pastoral stations and may end up being recruited at one station and end up somewhere else.
 
(30)	An indication of the extent of Aboriginal mobility, even in the very earliest days of European settlement, is provided by explorer Ernest Giles who met three Aboriginal people at Mount Churchman on the south-eastern edge of the claim area in 1875.  Giles discovered that one of the men “knew the country all the way to Perth [around 300 kilometres from Mount Churchman], and also to Champion Bay [around 350 kilometres away]”.  Similarly, Frank Walsh Snr’s grandfather was said to have come from Walkaway, having accompanied the Jones brothers inland to Boogardie Station in the 1880s. 
(31)	Further, unlike the pastoral regions of the Pilbara and the Kimberley, the Murchison “had an extensive transportation network from an early period and this provided greater opportunity for Aboriginal people to move between towns and other communities”, according to Mr Robinson. 
(32)	The evidence given by many Aboriginal witnesses demonstrated they or their parents were highly mobile and had spent many years of their lives travelling to various places across the State for employment reasons.  Witnesses gave evidence that they, or their family members, lived in a number of places and moved out of economic necessity, seeking seasonal work on farms, shearing jobs or work clearing the land. 
(33)	For example, Coral Brockman explained that her family “were nomads of a sort” when she was child, because “in them days you had to go and look for work because they didn’t have no dole. They had no pension like you got now so my parents had to follow the work to feed us kids”.  Similarly, Gloria Fogarty explained that her grandfather had worked on a lot of stations as “shearers and musterers can’t stay in one place and – shear all day every day. You’ve got to travel”.  Mr Robinson also observed that the lack of work opportunities in the small towns of Mount Magnet and Paynes Find led to Aboriginal people seeking work outside the claim area. 
(34)	For some Aboriginal people, movement for work was not the result of choice, but of government policy.  Joan Walsh described how when she was a child her father worked at Leonora and Toodyay because “the welfare used to send Aboriginals working” and had transferred him around the State.  
(35)	However, it was not just the desire amongst Aboriginal people to access employment opportunities which resulted in population mobility, but also improved education facilities.  For example, the government policies of the 1950s and 1960s encouraged Aboriginal people to attend schools in the South West and many of the life histories of the witnesses demonstrate movement for education purposes.  Leah Bell gave evidence that her grandfather, Gus Clinch, “was obviously a great believer in education because he sent a lot of his kids away to go to school”.  
(36)	The evidence also demonstrates that not only did the claimants and their families move out of the claim area but also that other Aboriginal people of the Murchison region were themselves highly mobile and often ended up in the claim area for work and other purposes. For instance, Frank Walsh Snr confirmed that non-Badimia Aboriginal people were working on stations in the claim area at the same time he was.  Lance Mongoo, a Wajarri man, stated that he lived in Mount Magnet for approximately 23 years and worked on Windsor, Anketell, Windimurra and Iowna Stations in the claim area from the time he was 18 years old (in 1965).  Mr Mongoo’s father worked on Windimurra, Meeline and Windsor Stations.  Similarly, Clarrie Cameron lived in Mount Magnet for a period. 
(37)	The historical record demonstrates that following the settlement of the claim area in the 1860s and 1870s, Aboriginal people were largely dispossessed from their land and the traditional subsistence economy rapidly declined.  It can also be inferred that there was a dramatic decline in the Aboriginal population of the area during this time.  From the start of the 20th century onwards, the historical record demonstrates that the majority of the remaining Aboriginal people in the claim area were employed in the pastoral industry (and that non-local Aboriginal people joined them on the stations) but that this rapidly declined in the second half of the 20th century.  As the 20th century progressed some Aboriginal people moved into towns and reserves in the claim area while the majority migrated out of the claim area.  
(38)	The State accepts that the general historical data does not ever record an absolute absence of Aboriginal people from the claim area, nor does it on its own conclusively prove that none of the Aboriginal people in the claim area today are descendants of the Aboriginal people in the claim area at sovereignty.  However, given the historical evidence as to depopulation in the decades following settlement and the migration into, and out of, the claim area (especially in the second half of the 20th century), no simple inference can be drawn that the Aboriginal people in the claim area today are descendants of the original inhabitants of that area.  If the claimants are to prove a genealogical connection between the claimants and the original inhabitants of the claim area they must do so positively in relation to each family which is said to have that connection.  The evidence that the necessary links have not been established in that respect has already been addressed above.
(39)	The State also accepts that general historical evidence does not, on its own, necessarily demonstrate that traditional law and custom has ceased to be acknowledged and observed in the claim area.  However the anthropological record from the 20th century in relation to the Murchison generally, and the claim area in particular, does report consistently that traditional law and custom had ceased to be acknowledged and observed in the claim area.
441		The State also contends that loss of continuity is apparent from the 20th century ethnographic record:
(1)	Both Mr Robinson and Dr Brunton, in their expert reports, have provided a summary of the writings of a number of anthropologists and others who studied Aboriginal people in the Murchison region during the 20th century.  Dr Brunton clearly provided by far the more fulsome and thorough analysis.  Although Dr Brunton assessed many accounts, including Bates, he considered that the two most substantial in this respect were those by Fink and Kingsford.  He also referred to Gould. It is apparent that Dr Brunton generally gave more weight to the observations of those earlier observers than Mr Robinson. 
(2)	As a matter of law, the observations of 20th century observers are directly relevant and must be considered.  The claimants bears the onus of demonstrating continued acknowledgment and observance of traditional law and custom, and continued connection, at each point in time from sovereignty to the present.  So much is clear from Yorta Yorta.  Indeed the result in Yorta Yorta, according to the findings of Olney J and upheld on appeal by the Full Federal Court and the High Court, was that the documentary evidence established that native title had ceased to exist in the relevant area during the 19th century, regardless of what the evidence of Aboriginal witnesses given at trial suggested about the current state of traditional law and custom.
(3)	In Bodney, the Full Court described, at [95], the trial judge’s failure to attach weight to the evidence of earlier anthropologists on the observance of traditional laws and customs between sovereignty and the present (and to rely instead upon contemporary evidence) as “a serious error” and upheld an appeal on that basis (among others). 
(4)	As a matter of evidence, the observations of 20th century observers should be assessed on their merits and given appropriate weight.  They provide an important, objective insight into the state of Aboriginal society and into the extent of acknowledgment and observance of traditional laws and customs during the pre‑native title claim period, which cannot necessarily be achieved through the consideration of the evidence of Aboriginal people given today.
(5)	The approach contended for in the claimants’ submissions that the interpretation consistent with the evidence of Aboriginal witnesses should be preferred, is contrary to both Yorta Yorta and Bodney.
(6)	Mr Robinson conceded that extensive changes have occurred in the claim area since sovereignty, but that “a modified traditional culture has endured”.  Dr Brunton said that Mr Robinson had confused pride in Aboriginality with maintenance of traditional laws and customs.  That is, Mr Robinson has looked for survival of generalised Aboriginal culture or lore when what is relevant in a native title case is the continued existence and vitality of the system of traditional laws and customs relating to land.
(7)	The observations of 19th and 20th century anthropologists, and other historical writings, provide an objective insight into the extent of acknowledgment and observance of traditional laws and customs during the 20th century which cannot be achieved through consideration of the evidence of Aboriginal witnesses at trial because: those witnesses were not alive or were not mature at the time; and their evidence can be affected by the native title claim process (see Jango at [319]).  
(8)	Both Dr Brunton and Mr Robinson agreed that Aboriginal collective memory can be shallow and unreliable and that it frequently contains mechanisms which facilitate the “masking” of changes, so that contemporary witnesses may hold genuine, but mistaken, beliefs about the past.  At the least, the 20th century ethnographic and historical evidence precludes the drawing of any inference of continuity of traditional law and customs during the 20th century.
(9)	In the State’s submission the data produced by anthropologists, linguists and others who turned their attention to the Aboriginal people in the claim area in the 20th century is striking for the way in which it consistently reports a loss of traditional culture and knowledge.  A summary of this evidence is set out below.
(10)	Bates was able to record a great deal of information about traditional life in and around the claim area, but she noted on a number of occasions that, even by her time (roughly 1908-1912), there had been significant diminishment of traditional law and customs. 
(11)	Bates observed that “wandering families or small tribelets of people … had found their way into the different districts since white settlement” such that the mere presence of individuals at any given camp did not mean that they “belonged to the district where they were encamped”.  She also observed, inter alia, that Aboriginal people were taking advantage of the European presence to escape the consequences of ignoring Aboriginal laws and that funeral traditions “have lost much of their interest” amongst Murchison Aboriginal people.  Bates also recorded a cessation of some increase rituals  and the loss of owners from estates due to depopulation. 
(12)	Fink carried out fieldwork in the Murchison region during the period 1955-1957 as the basis for her PhD dissertation.  Most of her research was in Mullewa, although she also made trips to stations and towns in the Murchison region, including Mount Magnet.  Fink worked with at least one person she identified as a Badimia, “old Mrs Thompson”, as well as with Joe Benjamin. Dr Brunton was of the opinion that she may also have interviewed other people who were possibly Badimia, or resided in Mount Magnet or were mentioned by the Aboriginal witnesses. 
(13)	Fink’s research focus was on social, cultural and economic change. Dr Brunton and Mr Robinson agreed that she was interested in the extent to which traditional practices and traditional life had been maintained.  Fink herself stated that she “was interested in observing changes in indigenous culture, and in trying to assess its present day significance”  and, accordingly, chose the Murchison to undertake her research as she wanted to study an area which had experienced intensive European settlement over a long period and where consequently there would be “considerable detribalization and acculturation” but not to the extent that “indigenous culture had completely died out”.  
(14)	Fink reported in some detail about the extent to which traditional culture had been lost as a result of European settlement in the region.  She was particularly focused upon the factors which were causing that process to continue during her period of research in the 1950s.  Her findings were summarised by Dr Brunton in his first report.
(15)	Fink distinguished three broad groups of Aboriginal people whom she encountered during her research. The first were the “town dwellers” who consisted of Aboriginal people with citizenship rights who lived in the white residential sections of Mullewa.  With only a few exceptions, these people would not cooperate with Fink’s research because “they did not want to be regarded as natives”, from whom they kept completely separate.  The second group of Aboriginal people were the “camp dwellers” who lived on the native reserves around towns in the Murchison.  Although some of them had a certain degree of traditional knowledge and interest, Fink considered that “their way of life [was] no longer based upon a clearly Aboriginal set of traditions”.  Rather, their identity was “based upon ties of loosely extended kinship to other Jamajdjis”.  
(16)	The third group were Aboriginal people who were working on pastoral stations in the Murchison.  Although Fink considered that the Aboriginal people living on pastoral stations “seemed to show more interest in the past” than the town or camp dwellers, “even they had a very incomplete grasp of their former culture”.  Fink found that, as a result of developments since the end of the Second World War, traditional orientation amongst Aboriginal people on the pastoral stations was waning and that younger station workers were being influenced by the attitudes of “contempt for anything connected with the Aboriginal past” held by many of their town relatives. 
(17)	Fink also recorded that that she was told by contemporary Aboriginal leaders that, by the early 1900s, the knowledgeable old men of the Murchison were dying out and “with them went most of the local ritual and song”.  Fink observed that this was not only a matter of depopulation, but a deliberate decision not to transmit information, linked to the neglect of the customs and rules by the younger generation. 
(18)	Fink was nevertheless able to identify some surviving aspects of Aboriginal culture, such as some songs and the details of some former ritual practices, but she noted that the fact that old men allowed her to record these things “is due to their understanding that these traditions are gradually dying (which they are) and that soon it will not be possible to record them”. 
(19)	Further, as her research progressed, Fink found it hampered by the extent to which Aboriginal people of the region had been acculturated.  She observed that, although her work referred to “tribal elders”, “this is something of a misnomer, for there are no tribes to speak of in this region today”.  Fink also concluded that she had obtained a somewhat distorted picture of the extent of traditional influences during her first visit to the region in 1955 as her role in recording traditional material had caused people to place a misleading overemphasis on traditional matters which had largely been neglected since the mid-1940s, in an eagerness “to oblige an interested white person”.  Fink commented that: 
The mistake which I made in 1955 was to see the traditional influences as active determinants within the situation – that is, to see them as still influencing the actual day-to-day behaviour of people, instead of regarding them as something which these people had learned and experienced in their early youth on stations or in camps where they grew up, but which had ceased to have much significance on their lives, except under special circumstances, such as when someone like myself went around asking people or trying to evoke this sort of behaviour by recording songs... The secrecy and mystery with which these people surrounded almost anything connected with their traditional culture was as much an expression of ignorance as of deep concern or fear. They respected it as something which had been important at one time to their parents, something which they had been taught as children, and which the old people had carried on as a living tradition, but now under most circumstances it was ignored. It had ceased to possess functional significance in everyday life.
 
(20)	Gould travelled to the claim area in 1966 in an attempt to obtain information from Aboriginal people about the Kunturu site at Lake Moore.  He travelled to a number of local stations and the Aboriginal Reserve at Mount Magnet, but concluded that “most of the Aborigines of the Lake Moore region had either died or had lost their traditions many years ago”.  He managed eventually to find three elderly men who had only “fragmentary” knowledge of the site, which had not been visited since the time of their fathers.  
(21)	The evidence in this proceeding is that that site still has not been visited by members of the native title claim group. 
(22)	Dr Brunton made the point that there is a distinction between belief and practice, and that the focus of Aboriginal religions traditionally was on practice, rather than mere belief.  His opinion, having examined the Aboriginal evidence, was that although some people stated they held certain spiritual beliefs or knowledge, the behavioural consequences and the “active ritual life” which should follow from such beliefs or knowledge does not exist in the claim area.   Dr Brunton was then asked about Darryl Fogarty, who counsel for the claimants suggested held knowledge about the Kunturu site at Lake Moore and was asked to protect it by a senior person.  As Dr Brunton pointed out, despite testifying to its central importance and to his role as its custodian, and despite its proximity (near the Mount Gibson homestead) to his place of residence, Mr Fogarty has not ever in fact visited the site to carry out those responsibilities.  
(23)	Kingsford’s research goal in the 1980s was to analyse the underlying cultural logic of traditional “Yamadyi Law” as it once existed.  
(24)	Kingsford carried out his fieldwork mainly with people living in Mullewa and Mingenew, increasingly focusing on former station people (most of whom were over forty years old).  He also visited a number of pastoral stations in the Murchison region and made some trips to other towns, including Mount Magnet.  In Dr Brunton’s opinion, while it would seem that more Wajarri than Badimia people were involved with Kingsford’s research, it is clear that he obtained a great deal of assistance and information from Joe Benjamin (who was given the pseudonym “Jacob Solomon” in Kingsford’s dissertation).  Kingsford also collected information from Peter Bell (who was identified as a Badimia man by Mr Robinson and the Aboriginal witnesses) and Charlie Green (who was Coral Brockman’s uncle). 
(25)	While Kingsford’s theoretical focus meant that his inquiries were directed mostly towards traditional beliefs rather than contemporary observances and behaviours, in Dr Brunton’s opinion it is still possible to extract useful information about continuity from his dissertation. 
(26)	Kingsford noted that certain apparently traditional beliefs remained among Aboriginal people he spoke to in the early 1980s, but that those beliefs were not being given effect by the concomitant ritual behaviour.  There was also a lack of consistency between informants as to the content of the beliefs in which Kingsford was interested.  
(27)	Despite the fact that Kingsford accepted that full local ritual knowledge was not being passed on to younger men because they were not seen as worthy of receiving it, Kingsford was able to obtain some information from older informants about various aspects of local Aboriginal ritual.    
(28)	As discussed below, it will be apparent to the Court that the details Kingsford recorded were not referred to by the Aboriginal witnesses at trial and so have presumably been lost for the reasons Kingsford identified, including the refusal to pass on knowledge and paraphernalia, the increasing attraction of towns and the removal of certain negative sanctions which supported traditional practices. 
442		The State says that the 20th century ethnographic evidence of cultural loss is corroborated by contemporary statements by Aboriginal people:
(1)	The 20th century ethnographic evidence of cultural loss is strongly corroborated by contemporary statements made by Aboriginal people.  By the time of preparing his supplementary report, Dr Brunton had listened to the taped interviews between Mr Chambers and members of the claimant group.  He observed that these interviews confirmed his view that many Aboriginal people today were making statements about the loss or abandonment of cultural practices and that these statements had not been appropriately followed up or considered by Mr Chambers or Mr Robinson (although to be fair to Mr Robinson he may have been unaware of them as he received only those pieces of information which Mr Chambers chose to give him).
(2)	For example, in 1998, Dr Taylor recorded that while Mr P George was purportedly the most knowledgeable Badimia person (so that “when [Mr P George] dies the knowledge of ‘country’ will go”), many of the old stories and songs had already been lost before Mr George’s time as “[Mr P George] was busy working and had no time to learn stories from old people”.  Similarly, in 2006, Mr P George told Mr Chambers about a number of different practices which were not passed on to him or which were now forgotten, including increase rituals, funerary practices and the allocation of a Dreaming to an important site.   
(3)	Mr P George’s half brother, Mr Gordon (Nulla) Nullagine, told Dr Taylor in 1998 that “most of the old tribal people have died (in Badimia country) – not much of the traditions remaining.  Nulla says however, still some knowledge”.  However, Dr Taylor recorded that “Nulla does not know any special dreaming to Badimia country … stories at Wiluna relate to Wiluna‑Warburton side”. 
(4)	Des Little told Mr Chambers that “most of the culture has all gone … no-one ever practices it – that was gone out over 50 years ago”.  Similarly, Ms H Little, in explaining to Mr Chambers why ceremonies were no longer carried out, stated that “Well I think, you know, the old tribal people passed on, and they didn’t carry it out, carry on with it”.  Ms Little later told Mr Chambers that there were no rules in respect of the preparation of certain foods for cooking, stating “in my time I know it’s free here because everything was finished … it might have been different earlier, I don’t know”. 
(5)	In 1990, Lorraine Pearce said that when she was small her family was “living in a tribal way, but you know, it goes on, you go to school and … they say it’s progress and whatever, and you forget half of these things. Because the days will never come back”.  She also commented “it’s really a sad kind of a thing because a lot [of] it’s dying out, the culture. See we’ve really got no culture left”.  And speaking about practices after a death, Ms Pearce said “people don’t do it as much now, so I mean, yeah. As I say the culture is dying … when they really did it in the first place … when they were living tribally there were all these things to do and not to do but, now it’s gone see”.  
(6)	Victor Little, when asked whether his step-sons want to follow the Badimia way, told Mr Chambers that “no, I think, you know, I mean Badimia died out years ago anyway, so it is just dying out more and more as the generations gets further down the track”.  
(7)	Ken Bynder, when interviewed by Mr Chambers in 2006, said that he did not think it was necessary to practice any of the traditional ways to be a Badimia and to make decisions in relation to country.  He added that “all the customs, the old customs, the old practices, have all gone, or almost gone, because of white settlement”, although he admitted to having some knowledge of the stories. 
(8)	Further, remarks in a number of accounts indicate that for one reason or another the old people did not transmit much of their knowledge to the most senior generation alive today, or who were alive in recent years. 
(9)	For instance, Mr A Little told Dr Taylor in 1998 that many of the old people died during the late 1950s and 1960s while he was in the Karalundi Mission, “and he lost the opportunity to learn more about country”.  Dr Taylor recorded that “[Mr A Little] knows of no dreaming myths associated with the country; much knowledge was not passed on to younger people, as the older people ‘were stricter in those days’ – restricting access to knowledge.  Initiations were in decline.  The white squatters told him of sites at Boogardie and Wandarrie Stations”.  Similarly, in the notes of his 1998 interview with Ollie George, Dr Taylor wrote “Ollie said people of his generation were not with the older people long enough to learn much. Ollie would have got knowledge from Nugget and Dinah (grandparents); the ‘King’ of Badimia. They should have knowledge, but much went with them after they died”. 
443		As to the present circumstances concerning continuity, the State submits that:
(1)	The historical and anthropological evidence does not establish that the claimants have continued to acknowledge and observe traditional laws and customs during the 20th century.  The result is that even if the Court were to conclude that the witnesses at trial acknowledged or observed seemingly traditional laws and customs, the Court should nevertheless find that the alleged Badimia society as a whole has not continued to acknowledge and observe traditional laws and customs and therefore the claimants’ claim to native title in the claim area on behalf of all members of the alleged society cannot succeed.
(2)	The legal principles are clear.  There must be acknowledgment and observance of traditional laws and customs by the relevant society, not just certain individuals: see  Yorta Yorta at [51]‑[52].  In De Rose (No 2) the Full Court referred at [58] to this issue and said that how many members of a relevant society must continue to acknowledge traditional laws and customs is a question of fact and degree in each case.
(3)	This question of fact and degree must be resolved by reference to four matters.  
(4)	The first is the historical and anthropological evidence as to the continued acknowledgment and observance of traditional law and custom in the claim area.  This is addressed above, where it is submitted that the 20th century ethnographic and historical evidence clearly raises the inference that there has not been continued acknowledgment and observance of traditional laws and customs in the claim area and surrounding region.  Thus cogent evidence would be needed from Aboriginal witnesses at trial to contradict what is otherwise a prima facie case against the existence of native title.
(5)	The second matter is the number and identity of witnesses at trial, as representative of the number of persons in the alleged present day society.  The identity and membership of that society is addressed below.  In the State’s submission the claimants have failed to define the identity and membership of the present day society putting forward, instead, two different versions.  The claimants have not sought to lead evidence as to the size of either of its purported present day societies.  It is not surprising, therefore, that there was a divergence of views amongst the witnesses about how many members the present day society(s) encompassed (and most witnesses conceded their estimate was a guess). 
(6)	On the most expansive view of the present day society, the number of members may be 2,000 or more.  There were 16 Badimia witnesses at trial.  In the State’s submission, 16 witnesses out of such a large potential claim group, largely resident across the State and outside of the claim area, is insufficient to demonstrate a normative system of traditional laws and customs across the whole of the alleged present day society.  The small sample size is made even less representative when one realises that the witnesses were closely related, being, in effect, members of  just two or three families.  It follows that the evidence at trial did not even purport to be representative of the whole or even a majority of that alleged society.
(7)	The third matter is what the evidence at trial says about the acknowledgment and observance of traditional law and custom by other Badimia people (that is, how representative the evidence purports to be of the whole of the alleged Badimia society).  The difficulty for the claimants is particularly acute in this respect because the evidence was overwhelming that there is a large majority of people descended from the named apical ancestors who do not acknowledge and observe traditional laws and customs. 
(8)	To the extent that the present day society encompasses all those descendants it is clear that those who may acknowledge or observe laws and customs are far too few to maintain a “society” or normative system.  Alternatively, to the extent that the present day society is said to consist only of those persons who are descended from the named apical ancestors, identify as Badimia and acknowledge and observe law and custom, the evidence suggests that this is a very small group of largely interrelated families.  There are also far too few members of this group to maintain a “society” or normative system from sovereignty to the present (and every generation in between).
(9)	The fourth matter is the very limited nature of the anthropological evidence at trial.  Mr Robinson’s reports can only ever be of limited value over and above the evidence given by the witnesses at trial because it is based on no fieldwork and reflects the views of only a very small number of informants, many of whom were witnesses at trial.  Many of Mr Robinson’s conclusions were generalisations based on second or third-hand statements (selected by the claimants’ legal representatives or Mr Chambers) by one or two witnesses.  An illustration of the difficulty facing the Court is that in many cases Mr Robinson’s opinions conflicted with that of other anthropologists such as Bates, Tindale, Fink or Kingsford (as well as Dr Brunton), a situation dealt with by Mr Robinson by saying in effect that he was just reporting what the witnesses said.  The Court cannot assess whether Mr Robinson is right or wrong because his data is much too limited to safely draw any conclusion about the whole Badimia society.
(10)	And in any event, assessment of the witnesses’ evidence is a matter for the Court, not Mr Robinson.
444		The State repeats its submissions above concerning the failure of the claimants to prove the claim area is traditional Badimia country – including having regard to inconsistent Aboriginal evidence on that topic – and problems arising from the social group/social category dichotomy pressed by the claimants, contending these issues too affect the judgement to be made about proof of continuity.
445		Finally, the State submits the life histories of claimants, Mr Ron Bandy, Ashley Bell, Leah Bell, Coral Brockman, Darryl Fogarty, Gloria Fogarty, Olive Gibson, Ollie George, Roderick Hedland, Percy Lawson, Beverly Slater, Des Thompson, Alan Walsh, Frank Walsh Senior, Frank Walsh Jnr and Joan Walsh is consistent with loss continuity.
446		The State submits that these life histories show that, with the exception perhaps of Frank Walsh Snr, each Aboriginal witness has lived much (or all) of his or her life outside the claim area.  It is apparent, for example, that during the 1950s to 1970s very few of the witnesses were actually residing in the claim area.  It is also apparent that there may have been a minor revival of visitation to, and residence in, the claim area by a few people in the past few years.
447		The State contends their evidence shows that the places of residence of the witnesses from time to time were a result of a range of prosaic, non-traditional factors and, to the extent that some witnesses from time to time found themselves living in Mount Magnet or nearby, that was a result of mine or station work (for example Des Thompson, Ron Bandy, Darryl Fogarty) or, more recently, in the interests of furthering the native title claim (Roderick Hedlam).
448		The State submits that although there are authorities, such as Neowarra, which stand for the proposition that practices off Badimia country may still qualify as observance and acknowledgment of law and custom, that proposition can only be taken so far.  It is no part of native title merely to show belief in, or adherence to, a culture.  If it were, then converting to Christianity or getting a university education would diminish one’s chance of native title.  Rather, the point is to show that those traditional rules and practices that produce rights are still observed and practised.  
449		In any event, the State submits off-country observance and acknowledgment of law and custom is only of assistance if there is evidence that there were such practices and that that was their purpose.  Some retained knowledge or belief is not sufficient.  Here, there is no such evidence.  No witness gave evidence that, while resident in Perth or elsewhere, they conducted rituals or carried out other practices designed to sustain their traditional connection with the claim area.  The contrast with Neowarra is, with respect, stark. 
450		The State submits the evidence is, therefore, grossly insufficient to demonstrate that even the members of the native title claim group as a core group have maintained a connection, by traditional laws and customs, to the claim area.  The evidence is completely to the contrary.  Even the very few witnesses who gave evidence gave little evidence of such a traditional connection.  And there is no evidence at all of a connection by other members of the native title claim group in the social category.
Claimants’ submissions
451		The claimants:
(1)	Reject the State’s submission that the historical and anthropological evidence does two things, namely:
(a)	removes the possibility of drawing inferences on continued acknowledgement of law and custom between sovereignty and the present based on the contemporary situation (unless that evidence is “compelling”); and
(b)	removes the possibility of drawing any simple inference that any of the claimants can trace a genealogical connection to the “society” in the claim area at sovereignty.
(2)	Repeat the submission that the Aboriginal evidence, the anthropological evidence and the historical evidence, together with the evidence that the rights and interests presently possessed are likely to have been the same as the rights and interests which were possessed at sovereignty, provide a firm basis from which the Court can draw the necessary inferences as to continuity of the relevant society and of the society’s traditional laws and customs.
(3)	Observe that the evidence which the State relies upon for its sweeping submission that “there could not be a clearer case than this one of the ‘tide of history’ having ‘washed away any real acknowledgment of traditional law and any real observance of traditional customs’”, is the evidence of Mr Robinson, Dr Choo and the claimants.  The claimants submit that that evidence, taken as a whole, rather than selectively and incompletely cherry-picking parts of that evidence, does not provide any support for that submission.
(4)	Observe that the State has sought to present its own history report by utilising and extrapolating upon selected portions only of the reports of Dr Choo and Mr Robinson and the lay evidence.  It is submitted that the portions of the evidence relied upon by the State are often incomplete and taken out of context.
(5)	Note that the State submits the initial impact of settlement on the indigenous population of the claim area “was the disastrous effect of introduced European diseases which, along with violent conflict, caused a decline in population of the Aboriginal people of the region”.  The only evidence which the State cites in support of that conclusion is Mr Robinson’s first report.  The relevant paragraph of Mr Robinson’s first report reads as follows:
European settlement had two effects on the Aboriginal population.  Initially, violent conflict with the settlers and introduced diseases caused a population decline.  Wittenoom reports, for example, that the region was afflicted by a small pox epidemic which led to many losses (Lefroy 2003).  Following a period of stabilisation and consolidation, the Aboriginal population then witnessed and increased a trend that has been repeated in other parts of Aboriginal Australia.

(6)	Say that it can be seen firstly that the description of the effects of introduced European diseases as “disastrous”, is one chosen by the State: it does not come from the Mr Robinson’s first or supplementary reports.  Secondly, Mr Robinson’s qualification that “violent conflict” only occurred, “initially”, has been omitted.  Finally, whilst highlighting Mr Robinson’s statement that the initial violent conflict with settlers and introduced diseases caused a population decline, the State studiously avoids repeating Mr Robinson’s rejoinder about the stabilisation, consolidation and increase in the Aboriginal population which followed.
(7)	Contend another example is where the State says that a ramification resulting from the deprivation of Aboriginal people from their lands and waters was their increasing participation in the new agricultural economy as labourers typically shepherds or station workers, citing Mr Robinson’s first report.  At the paragraphs cited, Mr Robinson does not refer at all to the deprivation of Aboriginal people from their lands and waters.  What he does make clear is that when pastoral leases were granted and possibly even before on an informal basis, it was “local Aboriginal people” who were utilised as shepherds and water diviners.  Mr Robinson goes on to make the important point that, in contrast to the intensive farming areas of the South West, the pastoral country of the Murchison was not to undergo major physical change and a substantial part of the fauna and flora survived and continued to be utilised by Aboriginal people.  Mr Robinson further stated that Aboriginal families living on pastoral stations came to establish a relationship with the station and its European owners and that this was an affinity which remained with older Badimia people up to recent times.  There was a reciprocal dependency between the station owners and the Aboriginal people.  A quotation from Fink is again taken from Mr Robinson’s first report, but the State neglects to note that Mr Robinson quotes other remarks of Fink to demonstrate that despite the changes brought by pastoral settlement, traditional culture remained, albeit with modifications.
(8)	Say the State does not cite any evidence in support of its submission that “one of the first and most dramatic impacts which European settlement had on the claim area was the forced exclusion of the indigenous population from its traditional territories”.  That conclusion certainly does not follow from the paragraphs which precede it and it is certainly not supported by the quotation provided from Mr Robinson’s first report, namely, that European settlement had an effect on Aboriginal people’s “ability to maintain a fully independent economic life and also disturbed traditional local organisation”.   The fact that settlement had an “effect” on the “ability” to maintain a “fully independent economic life” and that it “disturbed” “traditional local organisation” is a far cry from the conclusion that there was a “forced exclusion of the indigenous population from its traditional territories”. 
(9)	Note the State refers to the impact that Aboriginal institutions had upon the Aboriginal people of the Murchison noting that this was demonstrated by evidence from the Aboriginal witnesses in this hearing.  That is, a number of Aboriginal witnesses had parents or family members who were removed to Aboriginal institutions.  The State also refers to the evidence given by many Aboriginal witnesses which “demonstrated they or their parents were highly mobile and had spent many years of their lives travelling to various places across the State for employment reasons”.
(10)	Submit that what the Aboriginal evidence also demonstrated was that despite the institutionalisation of the various family members from time to time and despite the need to travel for employment, the claimant witnesses did not lose their identity as Badimia people and the traditional connection with the land and waters of the claim area was not broken.
(11)	Say, in a similar submission, the State says that the evidence demonstrates that other Aboriginal people from the Murchison region were also highly mobile and often ended up in the claim area for work and other purposes.  The State refers, specifically, to Lance Mongoo, a Wajarri man, who lived in Mount Magnet for 23 years and worked on various stations in the claim area.  What the State fails to mention, however, is that Mr Mongoo clearly maintained his Wajarri identity during that time and knew that he was on Badimia, and not Wajarri, country when he was living and working at Mount Magnet and on the nearby stations.
(12)	Submit that, contrary to the State’s submission, the historical record does not demonstrate that the Aboriginal people resident in the claim area were “largely dispossessed” from their traditional lands following settlement in the 1860s and 1870s; if by that expression, the State means that they were excluded from living in, working in and visiting, the claim area.  Similarly, there is no firm evidence from which it can be inferred that there was a “dramatic” decline in the Aboriginal population of the claim area during that time.
(13)	Note the State accepts that the historical record does not ever record an absolute absence of Aboriginal people within the claim area and nor does it on its own conclusively prove that none of the Aboriginal people in the claim area today are descendants of the Aboriginal people who were there at sovereignty.  The State goes on to say, however, that because of the evidence as to depopulation and migration into and out of the claim area “no simple inference can be drawn that the Aboriginal people in the [claim area] today are descendants of the original inhabitants of that area”.
(14)	Repeat what they have said earlier that, despite some degree of depopulation and movement by Aboriginal people into and out of the claim area, the Aboriginal evidence, supported as it is by Mr Robinson’s and Dr Choo’s expert evidence, is that those factors did not cause the claimants to lose their Badimia identity or to lose their connection with Badimia country. 
(15)	Accept that the observations of 20th century ethnographers has to be taken into account.  Those accounts have been taken into account by Mr Robinson in arriving at his conclusions in respect of continuity of the Badimia society and of the society’s laws and customs.
(16)	Note the State’s submission that in Bodney, the Full Court described the trial judge’s failure to attach weigh to the evidence of earlier 20th century anthropologists as “a serious error”, and submit that it was not the failure to attach weight as such which constituted the error but the reasons why the trial judge failed to attach weight to that evidence.  That is, as the Full Court explained at [95], the trial judge gave that evidence no weight “on the ground that it was not relevant to the position at sovereignty or at the present time”.  That is, the trial judge failed to consider whether that evidence might have been relevant to the acknowledgment and observance of laws and customs in the period between sovereignty and the present.  The Full Court also said that the other ground on which his Honour “rejected the evidence”, namely that the “basis rule” was not satisfied was also an error.
(17)	As to the State submission that the observations of 20th century observers should be assessed on their merits and given appropriate weight, they agree with that submission and say that this is what Mr Robinson has done in both of his reports and in his oral evidence.  The submission that the approach contended for in the claimants’ submissions is contrary to both Yorta Yorta and Bodney, they say, is simply wrong.  The claimants are not submitting that the ethnographic record should be ignored.  Far from it.  The submission is that where the ethnographic record is capable of more than one interpretation and on one interpretation it is consistent with other evidence in the proceeding (here the Aboriginal evidence) but on the other interpretation it is not, then the interpretation which is consistent with the other evidence should be preferred.
(18)	Submit that this section of the State’s submissions is little more than a summary of Dr Brunton’s commentary on the 20th century ethnography.  Dr Brunton’s opinion in respect of the 20th century ethnography has been compendiously dealt with by Mr Robinson in his supplementary report.   As Mr Robinson made clear in that report, he did not accept Dr Brunton’s interpretation of the 20th century ethnography.  Mr Robinson provided cogent reasons why he takes a different view to Dr Brunton in relation to each of those sources.
(19)	Note the State’s submission provides a transcript reference which is said to indicate that Dr Brunton and Mr Robinson agreed that Aboriginal collective memory can be shallow and unreliable and that it frequently contains mechanisms which facilitate the “masking” of changes, so that contemporary witnesses may hold genuine, but mistaken, beliefs about the past.  It is submitted that Mr Robinson said nothing of the sort.  Not even Dr Brunton went as far as the State’s proposition.  French J rejected a similar attack by the State on the Aboriginal evidence in Sampi FC at [981].  His Honour there said that his assessment of the Aboriginal evidence was based upon ordinary processes of inference and assessment of probabilities and credibility that apply to the testimony of any witness.
(20)	Note the State attempts to review the Aboriginal evidence and submit that what this section of the State’s submissions consists of is little more than a selective summary of evidence of “loss and abandonment” from Dr Brunton’s reports.  Of the 19 footnotes in this section only two of them refer to the Aboriginal evidence but they all refer to Dr Brunton’s reports. 
(21)	Accept that there has been some loss of traditional knowledge and practices within the claimant group but that this is to be expected.  As the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta observes at [89]:
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.

(22)	Submit that evidence of the kind referred to in the State’s submissions, is evidence that appears in most native title claims where witnesses are reluctant to divulge certain information or they downplay traditional knowledge as compared to previous generations.   It is clear from the evidence depicted that when the Badimia people are referring to a loss of “culture” what they really mean is men’s Law. 
(23)	For example, the State cites Dr Brunton’s first report  as evidence of Mr P George relating to Mr Chambers the loss of a number of different practices which were not passed down to him or which were now forgotten. If the passage cited from Dr Brunton’s first report is examined closely as to the purported evidence of abandonment of practices “which were not passed down … or … were now forgotten” the reader is found wanting.  
(24)	What appears at this paragraph is a series of exchanges where Mr Chambers asks Mr P George speculative questions about his knowledge of a possible Dreaming story for a waterhole, a possible increase site for making “kangaroo come about by dancing” and food abstinence at Wiluna.  In each case Mr P George politely answered by gratuitously concurring and saying “I suppose they used to do it”, “I suppose it is”  and “No, I never seen anything like that”, meaning that he did not know if Badimia people did these things or had such knowledge.  Mr P George may not know of the ritual of increasing kangaroo by dancing because it never was a practice of the Badimia.  There was no evidence lead that it ever was a practice. Similarly, there may never have been a Dreaming story about the particular waterhole Mr Chambers asked him about.  The State has not led any evidence that there was such a Dreaming story.  The only thing Mr P George did fully agree with was in relation to Wiluna practices of food abstinence after a funeral where he said “well they [meaning the Badimia] used to I know, but nowadays we don’t carry that thing on – it is all forgotten more or less, but we know it, we know it”.  
452		The claimants submit that what is clear from the evidence is that people acquire their identity as Badimia by descent from a Badimia parent who would in turn have acquired their Badimia identity from a Badimia parent backwards in time to the original people from the claim area. 
453		The detailed further submissions of the claimants in relation to the State’s submissions concerning traditional boundaries and the social group/social category dichotomy have already been set out above.
454		In relation to the State’s submissions about the life histories of each of the Aboriginal witnesses, the claimants submit:
(1)	The State has submitted that with the exception perhaps of Frank Walsh Snr, each Aboriginal witness has spent much (or all) of his or her life living outside the claim area.  The claimants do not accept that this is a fair characterisation of the Aboriginal evidence.  There are two points, in particular, to be made in relation to this submission.
(2)	First, the claim area does not include the whole of what the claimants consider to be traditional Badimia country. This issue is addressed in the claimants’ submissions.  Mr Robinson’s evidence is that Badimia traditional country is much larger than the claim area, extending west to include Yalgoo and possibly Mingenew and south towards Dalwallinu.  Towns like Wubin and Dalwallinu, where a number of claimants have lived for extended periods of time, are considered to be within or, at the very least, very adjacent to, traditional Badimia country.  Secondly, it is clear that the fact that, from time to time, those Badimia people who gave evidence have had to live and work outside of Badimia country has not broken their strong connection with that country.  The fact that many claimants may not reside within the claim area is not fatal to the maintenance of the requisite connection: Daniel (2003) at [412]-[425].  There is ample Full Court authority that physical presence is not a necessary requirement for continuing connection: Moses at [306] (citing three earlier Full Court decisions).
(3)	The State submits that, in any event, the evidence is “insufficient” to demonstrate the maintenance of connection to the claim area by the “social group”.  The claimants’ submission in reply is that the question whether the claimants have established the necessary degree of connection by their laws and custom: “is a matter of judgment involving an assessment of a wide array of evidence”: Moses at [308].
(4)	In this respect, evidence was led from a number of members of the Badimia claimant group.  As well as giving oral evidence, each witness provided a very detailed written statement of their evidence.  The evidence was given publicly in the presence of family members and other Badimia people.  The evidence was not limited to evidence of the practices and beliefs of the individual witness but extended to that witness’ knowledge of the practices and beliefs of their family and of the Badimia people generally.  It should be noted that in Mr Robinson’s first report, he made the point at [21] that the evidence which the Badimia witnesses gave in 2010 was consistent with what Badimia people had been reported as saying in Dr Fleet’s 2001 report, in Dr Glaskin’s 2004 report and in the 2006 report which Mr Robinson co-authored with Mr Chambers.
(5)	It is submitted that the evidence of the Badimia witnesses was cogent, credible and compelling.  None of the witnesses were cross-examined to suggest that other members of their family or other members of the Badimia claim group did not share the witnesses’ beliefs and views about Badimia laws and customs or about Badimia rights and interests in the claim area.  As Sackville J observed in Jango at [301], if particular features of the indigenous evidence have not been challenged in cross‑examination, there would need to be cogent reasons for rejecting that evidence.
455		The claimants say that the enjoyment they derive and the activities they conduct in the claim area are not random, as Dr Brunton has, in effect, suggested.  They say, to put the matter generally, that because they are descended from Badimia people, and have learnt Badimia ways by which they have taken responsibility to look after and speak for traditional Badimia country, they have the same rights to enjoy the claim area, to conduct the activities of which they gave evidence, and to speak for country, as their ancestors had at sovereignty.  The position of the claimants in this regard is put as follows:
(1)	The claimants submit that Badimia people have the following rights: a right to occupy the area; a right to use the area; a right to enjoy the area; a right to live within the area; erect shelters upon or within the area; camp upon or within the area and a right to move about the area.
(2)	All Badimia people have the right to access and to use and enjoy Badimia country and the traditional resources that are present on Badimia country. The evidence shows regular access to the claim area by a core group of Badimia people and activities that include camping, hunting, food gathering, use of medicinal plants and maintenance of significant sites.
(3)	In Mr Robinson’s opinion Badimia people carry out these activities believing that they have the right to do so under traditional laws and customs.   This view was encapsulated by Darryl Fogarty as follows:
I can do most things on Badimia country, I can’t kill someone though or I can’t do things in places I have been told to stay away from.  I can hunt, collect foods, access the land, make decisions, control access of others, protect places of importance, maintain and protect places, get water, camp, tell stories for the land and prevent misuse of cultural knowledge.

I don’t think of these things as rights, I see them as responsibilities.  I would get wild if people muck up our good springs or paint on rocks and damage things.  I would say something about that.  I would speak to other members of my family and we would do something.
 
(4)	Mr Robinson detailed the evidence given by some witnesses that went towards showing which rights and interests they practiced:
(a)	Darryl Fogarty gave evidence that he could “hunt, collect foods, access the land, make decisions, control access of others, protect places of importance, maintain and protect places, get water, camp, tell stories for the land and prevent misuse of cultural knowledge”; 
(b)	Roderick Hedlam stated that he and others have “got the right to do things on our land” and specified getting medicines, camping, getting food, collecting wood, making fires, collecting gum and swimming in pools; 
(c)	other witnesses gave evidence about access to land and the performance of specific rites; 
(d)	Ollie George talked about a range of resources and sites he knew and utilised;  and
(e)	others described camping and food gathering activities and visits to check on significant sites. 
(5)	Mr Robinson was of the opinion that they did these things as of right and believed they could do so with traditional authority. 
(6)	Mr Robinson also examined the findings of the anthropologist Dr Glaskin regarding the extent to which Badimia people who do not live permanently on Badimia country still exercise their rights and interests and found that:
(a)	Ms Cherry Clinch lives in Perth but still visits the Paynes Find and Goodingnow area and while visiting exercises her rights to get traditional food and visits sites of significance, presumably to check on their condition; 
(b)	Des Little did not frequently visit in the past but does now and participates actively in the administration of the native title claim;  and
(c)	Dr Glaskin concluded that Des Little and his children hold “the potential” to exercise rights but Mr Robinson believed there is evidence in her report that they actually do exercise them. 
(7)	Mr Robinson found that the extent of Badimia people’s maintenance of connection and actual exercise of rights varies according to their life circumstances, as might be expected in any social grouping where members’ abilities to perform cultural responsibilities might be affected by their own personal and familial situations. 
(8)	Protection of sites includes water sources.  Ollie George, for example, stated that he was taught by his grandparents how to clean out rockholes.  He was also taught to conserve food: “we never killed something if we weren’t going to eat it and we never wasted food”. 
(9)	Mr Robinson opined that recognition of Badimia rights is dependent on continuing connection to country. 
(10)	The witnesses gave examples of the way knowledge was transmitted about the rights and interests in Badimia country as follows: 
(a)	Roderick Hedlam recalled how his elders passed on knowledge and told him about the country and what was available on it; 
(b)	Coral Brockman stated that her children demanded that she pass on knowledge to them;  
(c)	Darryl Fogarty said he also passed on knowledge to his children and believes that it is “just what you do – you keep the culture going, you keep your stories a part of the land”;  and
(d)	Gloria Fogarty feels safe for herself and her children on Badimia country because all her Badimia spirits are on the country and “they make it safe for Badimia people and their children to be on our country”. She would not feel safe on someone else’s country because she would not be protected there. 
(11)	In his evidence, Percy Lawson said that he goes hunting and camping at Thundelarra Station approximately twice every week.  He provided details of a recent trip he took to Thundelarra Station, when he camped there, and caught and cooked kangaroos.   Other witnesses also gave evidence to the effect that they regularly camped at Thundelarra Station. 
(12)	Many witness provided evidence of camping trips that they had undertaken to other places in Badimia country, including Ninghan Station, Paynes Find and Goodingnow Station (located near the northern tip of Lake Moore). 
(13)	Knowledge of how to make shelters in the traditional manner is still retained.  Ollie George stated that his parents taught him how to make windbreaks or shelters, which he said were called eerdin.  Joan Walsh also provided evidence that she used to make bough sheds using branches from the mulga tree. 
(14)	The evidence points to the Badimia people possessing and exercising rights to access and use the Badimia claim area in an exclusive way.  Although these rights might be expressed on an individual basis they are seen to be held by the Badimia people as a whole.
(15)	There is some evidence that people see themselves as having responsibilities in particular parts of the claim area, but in Mr Robinson’s view Badimia laws allow members of the society to exercise rights over all Badimia land.  These rights are subject to age, gender, knowledge and status. 
(16)	The claimants seek the following rights and interests as relates to resources: a right to hunt in the area; a right to fish in the area; a right to take traditional resources, other than minerals and petroleum, from the area; a right to take fauna from the area; a right to take flora (including timber) from the area; and a right to take and use water on or under the area.
(17)	The evidence shows examples of Badimia people living on Badimia country, using its resources and carrying out hunting and gathering activities. 
(18)	Mr Robinson concluded that it seems clear from the evidence and from the previous reports written for the claim that Badimia people retain an extensive knowledge of the food and material resources of their country. 
(19)	Resource knowledge and use goes to two aspects of Badimia society, the ongoing connection of individual Badimia people with their traditional country and their exercise of rights, interests and responsibilities in relation to that country.  It also goes hand in hand with the question of significant sites and knowledge of the cultural landscape. 
(20)	In general terms, Badimia people place a positive value on foodstuffs and medicines obtained from traditional resources.  Despite daily reliance on processed foods, people express a preference for the taste of bush food and the experience of going out on country to obtain it.  Knowledge of traditional resources is prized and efforts are still made by kin to pass on knowledge to the next generation of Badimia children.  Mr Robinson was of the opinion that the Badimia pass on this knowledge as of right and believed they could do so with traditional authority. 
(21)	Badimia people have identified a substantial range of plant foods that are still sought out and consumed.  Mr Robinson noted in his first report that although most Badimia people are not fluent speakers of the language any more, they still remember and pass on the Badimia names for vegetable resources and animals. 
(22)	Mr Robinson noted that the witnesses gave evidence about the animals they hunted on Badimia country. One of the witnesses, Frank Walsh Jnr, stated that he and other teenagers used to walk extensively on Badimia country.  They would access resources like water and also hunt goannas, which they ate while out on country.  He said he still goes out on Badimia country and likes to get food like goannas, bardies and kangaroo. 
(23)	Mr Robinson stated in his first report that the lack of water courses means that fishing is not a major activity in the Badimia traditional foraging repertoire.  Fresh water turtles are found in some freshwater springs, but they do not appear to be actively hunted.   The State submits that the right to fish should not be recognised as no evidence has been led to support the right.  The claimants agree with this submission.
(24)	Several witnesses gave evidence about the techniques they were taught by parents and other kin to find and extract water. 
(25)	Darryl Fogarty gave evidence about obtaining water on Badimia country and stated: 
Springs are usually there all the time, but soaks you have to dig out. You scoop them out until you get the clear water in there …  Water is important to us and has been handed down to us from the old people that we must protect it and make sure we can use it next time. 
(26)	Badimia people gave evidence of the use of certain plant species for medicinal purposes.  One of the most well-known of these is a plant believed to have cured Albert Neebrong of tongue cancer. 
(27)	The evidence of Leah Bell, Joan Walsh and Darryl Fogarty is indicative of Badimia people’s continuing belief in the efficacy of traditional resources and knowledge. 
(28)	Ollie George gave evidence that he was shown how to make fire using the wood of a sandalwood or quandong tree and dry kangaroo dung. 
(29)	The claimants assert that Badimia people have the right to take soil, sand, stone, flint, clay, gravel, and/or ochre from the area.
(30)	As well as knowledge and use of flora and fauna for food and medicine, the Badimia utilise resources in the physical environment for pragmatic purposes to build dwellings, make implements and so on.  These resources include preferred woods for making shelters or for offering the best shade, for making traditional weapons or utensils and ochre for paint. 
(31)	Percy Lawson gave evidence that his grandmother used to travel to Golden Grove and Ninghan Station to get ochre. He said that he finds it “in all the breakaways”. 
(32)	Ollie George also gave evidence about ochre being used for men’s Law and corroborree. He said that there is ochre at Golden Grove and at Minjar Hill, north of Thundelarra Station. 
(33)	The claimants assert that Badimia people have a right to manufacture traditional items from the resources of the area.
(34)	Ron Bandy gave evidence that it is “the Badimia way to make spears, boomerangs, shields, tapping sticks and walking sticks for the old people”.  He said that he learnt to make boomerangs, spears and fighting sticks by watching his father and grandfather.  Mr Bandy gave evidence that he still makes them, and has taught his children and grandchildren. 
(35)	Percy Lawson gave evidence that he goes into the bush to find the right wood to make tapping sticks and digging sticks. 
(36)	Mr Lawson and Olive Gibson gave evidence that Badimia people still collect and carve emu eggs, noting that it is a Badimia tradition. 
(37)	The claimants assert that Badimia people have the right to trade in the resources of the area.
(38)	There is no evidence that the Badimia people currently engage in trading activities with regard to the resources on Badimia country.
(39)	The claimants assert that Badimia people have the right to visit, care for, conserve and maintain places and objects of importance within the claim area and protect them from physical harm.
(40)	Badimia people also have the responsibility to ensure the protection of the land and especially the culturally significant sites on the land. Because of their special connection to the country, only Badimia people have the right to carry out site preservation tasks. 
(41)	The evidence shows that the claimants identify within the claim area, areas or named places that have a significance which derives from their Dreaming or spiritual associations.  The claimants’ right to protect these places is characterised by them as a responsibility that is an important part of their responsibilities as community members. 
(42)	Mr Robinson stated that the map at Appendix 2 of his first report indicates that the claim area is rich in places of cultural significance.  These places range from what might be called secret/sacred sites, mythological sites, dreaming tracks, increase centres, named places, camp sites, birth places, burial places, resources (e.g. quarries and ochre deposits, water sources, favoured places for game and vegetable foods), initiation sites, camp sites and historical sites. 
(43)	Badimia people are expected to maintain sites both by ensuring that they stay in a physically and spiritually healthy state and by preventing their damage, either by direct injury or by inappropriate access to them. 
(44)	Mr Robinson stated in his first report that the Badimia see their landscape as full of cultural meaning.  The existence of sites which are specifically identified with the Badimia also serves to distinguish them from other Aboriginal societies. Mr Robinson stated that the evidence of witnesses shows that Badimia people see themselves in interaction with the physical environment, with duties and responsibilities to protect it from harm and ensure its continuity.  For example, Darryl Fogarty said he was taught by the old people that Warriedar Hill is an important site for the eagle and it must be protected. 
(45)	Mr Robinson stated in his first report that it might also be expected that knowledge of mythological and ceremonial sites has been affected by the reduction in ritual activity. The body of sites will also have been affected by the absence of birthplaces and burial sites since people are now born and buried in towns rather than on country.  Nevertheless, Mr Robinson considered that the Badimia retain a rich body of knowledge of the landscape, and their evidence indicates that this knowledge is being passed on to future generations. 
(46)	Ashley and Leah Bell both gave evidence that they check on significant sites on Ninghan Station, especially Warrdagga, which is a sacred site for their family and for all Badimia people.   Ashley Bell, in particular, is seen as the custodian of the area. He and Ms Bell and Mr Bell’s son, Drew, protect the landscape and look after marked and unmarked bush graves.   They ensure that the graves and the springs have not been disturbed, and they clean up if people have camped nearby.  Ashley Bell also gave evidence that he travels to Thundelarra Station to check that caves and rockholes do not become damaged from mining activity. 
(47)	Coral Brockman gave evidence that mining could not be allowed at Warrdagga because it would upset the “balance” and people would fall ill as a result.   Darryl Fogarty stated that significant sites were his duty to protect.  Many other witnesses also gave evidence that Warrdagga is an important and sacred place. They noted that ceremonial objects are kept there that are used for men’s business. 
(48)	Frank Walsh Snr gave evidence that he used to work on Wanarie Station and at that time he was shown paintings at a nearby rockhole by his uncle, which he has since shown to his own family. He says that his family “watch after these paintings” and that it is a special place to him. 
(49)	Coral Brockman gave evidence that she believes that her great grandmother handed down custodial responsibilities for the Lake Moore area to her.  She said that the whole Lake Moore area is of special importance to the Badimia people and her family.  Ms Brockman said that it is rich with traditional Badimia food, medicines and has sacred sites.   For this reason, Ms Brockman visits the area every year, and has camped at Goodingnow Station every Easter since 1969.  Many of her family have accompanied her over the years, and she always takes her children with her.   Whilst there, Ms Brockman looks after the sacred sites around Lake Moore, and hunts in the area for bush tucker and traditional medicine.   Other witnesses gave evidence that they also have a responsibility to protect and look after the Lake Moore area. 
(50)	The claimants assert that Badimia people have a right to engage in cultural activities within the area and a right to conduct and participate in ceremonies and meetings within the area.
(51)	In his first report Mr Robinson stated that the continuing knowledge of Badimia country and its resources is what might be called Badimia cultural style and ways of doing things that set the Badimia apart from other people. 
(52)	Mr Robinson stated that there are Badimia rites that have to do with propitiating spirits, ensuring good fortune and protecting land and humans from harm. 
(53)	The most pervasive of these rites is associated with approaching water sources.  It is expected that a person will announce his or her presence by throwing sand and announcing their presence. In this way the Bimara associated with the place will know whom the person is and that they are from Badimia country. 
(54)	Beverly Slater gave evidence that she has taken all her children out to the waterfall at Goodingnow, and continues to do so as often as she can, visiting about once a month.  She noted that this waterfall is a sacred site and a special place and that every time she visits she throws sand in and talks to the Bimara. 
(55)	Mr Robinson stated that Badimia religious beliefs include narratives about the journeys of mythic beings across Badimia country.  Typical of such narratives in Aboriginal culture, the beings are said to have created natural features as they travelled and have left signs of their presence that are visible today. Knowledge about the sites and the actions of the beings is passed from generation to generation. 
(56)	Mr Robinson described various rituals that the Badimia witnesses have memories of their elders carrying out, as well as doing themselves. 
(57)	Many witnesses gave evidence that Warrdagga is an important and sacred place. They noted that ceremonial objects were kept there that were used for men’s business.   Darryl Fogarty gave evidence about Warrdagga as follows:
Dad and Henry Sam told us about the sacred cave up at Ninghan Station, on the Warrdagga Hill. It has the tools for initiation inside it. We never went there as kids but now I would go there because I’ve got the right to do it, but I’d make sure it was okay with uncle Ollie George, Ted Fogarty and Roderick Hedlam.

(58)	Both Ollie George and Frank Walsh Snr gave evidence that there are sacred sites in the vicinity of Kirkalocka Station.   One is on the eastern side of the station where witchetty grubs (bardis) are found.  Frank Walsh Snr stated that the elders go to that site and make white powder flakes from the quartz stone. They throw the flakes in the air and this attracts the bardis.
(59)	In his first report Mr Robinson stated that there was evidence of now deceased Badimia men having been initiated and of young Badimia men also undergoing initiation rites.   Badimia men who wish to be initiated now travel to centres like Wiluna and have also played active roles in the ceremonies. 
(60)	Des Thompson gave evidence that the area around Paynes Find is important for ceremonial purposes, specifically men’s business. He said that it is a place that was traditionally used to hold ceremonial meetings and corroborees. 
(61)	The claimants assert that Badimia people have the following rights: the right to make decisions about the use of the area by members of the Badimia people; a right to make decisions about the use of the area by persons who are not members of the Badimia people; a right to invite and permit others to have access to and participate in or carry out activities in the area; and a right to control access of others to the area except such persons as may be exercising a right accorded by the common law, statute law of the Commonwealth or the State of Western Australia or a lawful grant by the British sovereign or its successor.
(62)	Badimia people with the status of elder have an enhanced status and have a pre‑eminent role when decisions are made about actions that might affect Badimia land. 
(63)	Non-Badimia and non-Aboriginal people should seek permission to access Badimia land and those identified as elders or who are perceived to have a special association with parts of the land have the right to permit or deny access. 
(64)	Implicit in the right to control the access of others to the claim area and to control the use and enjoyment by others of the resources of the area is an expectation on the part of the claimants that non-Badimia people should seek permission before accessing or using the resources of the claim area. 
(65)	The claimants consider that it is very important that outsiders ask permission before they come onto Badimia country to hunt or camp. Asking permission ensures that visitors do not visit places that are unsafe for them or are otherwise harmed by the spirits. 
(66)	Gloria Fogarty stated that non-Badimia Aboriginal people need to seek permission and listen to advice given to them about Badimia country. 
(67)	Frank Walsh Snr gave specific evidence about when he should be asked permission and for where, and when the elders, Ollie George and his “old aunty” should be asked. He interpreted the permission rule as one of showing respect.  
(68)	Darryl Fogarty stated that he would “get wild” at transgressors and he and his family “would do something” where, for instance, others were to “muck up our good springs or paint on rocks and damage things”.  Traditional punishment might still involve physical measures and “flogging” of wrongdoers with flogging sticks named “coondies”. 
(69)	The evidence supports the view that direct action to punish transgressors is not always needed as Badimia country contains spiritual forces that can protect it from harm and bring misfortune to those who do not follow rules in accessing and using it. Forces that are contained in beings like the Bimara and other spiritual entities like the mundungu and wurdaji serve to control human activity.  It is the Badimia people’s responsibility to ensure that these forces themselves are maintained and appeased. The right to approach these forces is a Badimia one and an important component of their relationship with their country. 
456		Additionally, in relation to the claimed right of exclusive possession, the claimants submit that:
(1)	In the present case there has been a significant body of evidence which is to the effect that strangers should ask permission before carrying out any activity on Badimia country.  Badimia country is redolent with spiritual dangers for those who are not Badimia. Those who do not seek and obtain permission risk serious harm from the spirits in the country.    That evidence, of itself, would justify the Court in making a finding, subject to the issues of extinguishment, that the Badimia people have a native title right of exclusive possession, as the following passage, at [127], in Griffiths v Northern Territory of Australia [2007] FCAFC 178; (2007) 165 FCR 391 demonstrates:
It is not a necessary condition of the exclusivity of native title rights and interests in land or waters that the native title holders should, in their testimony, frame their claim to exclusivity as some sort of analogue of a proprietary right. In this connection we are concerned that his Honour’s reference to usufructuary and proprietary rights, discussed earlier, may have led him to require some taxonomical threshold to be crossed before a finding of exclusivity could be made. It is not necessary to a finding of exclusivity in possession, use and occupation, that the native title claim group should assert a right to bar entry to their country on the basis that it is ‘their country’. If control of access to country flows from spiritual necessity because of the harm that ‘the country’ will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive. The relationship to country is essentially a ‘spiritual affair’. It is also important to bear in mind that traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people. The question of exclusivity depends upon the ability of the appellants effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation. The status of the appellants as gatekeepers was reiterated in the evidence of most of the indigenous witnesses and by the anthropological report which was ultimately accepted by his Honour. We would add that it is not necessary to exclusivity that the appellants require permission for entry onto their country on every occasion that a stranger enters provided that the stranger has been properly introduced to the country by them in the first place. Nor is exclusivity negatived by a general practice of permitting access to properly introduced outsiders.

457		The claimants repeated their submissions rejecting the State’s pleading point concerning the social category/social group.
Consideration 
458		The Court has set out the detailed submissions made by the State and the responses thereto made on behalf of the claimants, as well as the claimants’ substantive submissions in relation to continuity of connection by traditional law and custom, because they are, in many ways, reflective of the type of evidentiary circumstances that often present themselves in native title proceedings, especially in parts of Australia where, following sovereignty, there has been disruption of traditional Aboriginal lifestyles.
459		On the one hand – the State’s perspective – the submission is made that the evidence of European activity suggests that Aboriginal ways of life in the claim area were significantly disrupted, to the point that the pre‑sovereignty connection of the Aboriginal inhabitants with their traditional country was severed for all time.  
460		The claimants, on the other hand, emphasise that the disruption that came with European settlement does not necessarily mean that Aboriginal people were thereafter unable to maintain their traditional connection to their traditional country and contend their connection does continue today. 
461		In this particular case, the historical evidence is not in dispute.  The pastoral industry arrived in the claim area during the last third of the 19th century.  The mining industry arrived in about the 1890s, and continued for many years.  Some mining towns, such as Boogardie, and Paynes Find, came and went.  Mining towns like Mount Magnet, however, had a longer life.  Aboriginal people remained in, and in the vicinity of, the claim area, as Dr Choo’s history reports attest.
462		As the above analysis of the Yorta Yorta requirements emphasises, whether or not native title exists is not to be assessed merely by some impressionistic assessment of whether the “tide of history has washed away native title” or there exists a society exhibiting “vitality”, but by paying proper regard to the requirements of s 223 NTA.
463		So far as the State’s submissions are concerned, there is much force in the claimants’ analysis of them, in their reply submissions.  For example, the fact that claimants no longer live within the claim area does not automatically disqualify a claim.  The fact that men’s Law has been lost, does not automatically disqualify a claim.  The fact that detailed knowledge about Dreamings and sites of significance may not have been retained, does not automatically disqualify a claim.  That an inferred “classical” sovereignty society is no longer depicted by the evidence does not mean that the native title connection requirements of s 223 cannot be satisfied.  
464		All that said, in this case there is, in the result, in the Court’s judgement, a number of insurmountable difficulties for the claimants in satisfying the connection, including the continuity, requirements of s 223.
465		First, as found above, the Court is not satisfied that the claimants have shown that the claim area was traditional Badimia country at sovereignty.  Parts of it appear to have been, but not all of it was.  It is not for the Court now to speculate as to what parts might have been.
466		Secondly, the Court has found that a significant number of the apical ancestors, relied upon for the purpose of defining a Badimia society or community which is said to have maintained a connection with its traditional country since sovereignty, cannot be shown to have been Badimia people or persons with a traditional association with the claim area.
467		These particular findings are critical in this case because it means the constituent society contended for, as currently holding native title rights and interests, cannot be shown to be the successor to the Badimia sovereignty society which has claimed in respect of traditional Badimia country.
468		Thirdly, there is also a real difficulty, in the Court’s view, in finding that the laws and customs identified by the claimants, as current laws and customs giving rise to the claimed native title rights and interests in respect of the claim area, are “traditional” in the Yorta Yorta sense.  That is to say, the claimants, in the Court’s judgement, have not established by satisfactory evidence that the current laws and customs giving rise to those rights and interests are rooted in sovereignty laws and customs.  This is an issue tied to the present continuity question.
469		Finally, there is, in this regard, a great difficulty in identifying evidence which discloses that, since sovereignty, from generation to generation, the laws and customs of the Badimia, which give rise to the claimed native title rights and interests, have been continually acknowledged and observed without substantial interruption.
470		While, as discussed above, it may well be possible in some circumstances for a small group of claimants with ancestral connections to a claim area to prove connection under the NTA, the fact that there are only a few such persons today, on the Court’s findings, significantly complicates the problems of proof of connection from the claimants’ point of view in the particular circumstances of this claim.
471		As explained above, the Court does not accept that simply because there may be many descendants of ancestral Badimia people encompassed by the description of the claimant group in this proceeding, the claim must automatically be dismissed; but this factor does raise questions about the proper characterisation of the laws and customs apparently followed by the current society of Badimia people, and whether they are to be characterised as “traditional” Badimia laws and customs or rather as the laws and customs of a “new” post‑sovereignty group who today identify as Badimia.
472		In some circumstances, the fact that a “tribal” group today has effectively incorporated “outside” Aboriginal persons within the group over the years, does not necessarily negative a submission that the evidence shows there is a core group that satisfies the s 223(1) ancestral and connection requirements and holds native title.  Indeed, in some circumstances, those outsiders, through their cultural knowledge of that “tribal” group, may be able to give compelling evidence concerning the existence of that group as a distinct cultural entity or “society”, in Yorta Yorta terms, and as to the subsistence and maintenance of their law and custom over the generations, and the rights and interests in relation to land and waters to which they give rise.  But in this particular proceeding, the evidence concerning the “outsiders”, or the “historical” Badimia people, as the Court has referred to them, is not of that nature.
473		In this case the evidence relating to the social group/core group, as Mr Robinson and the claimants describe it, is not of a group of people who, despite the vicissitudes of life since sovereignty, have held on to their laws and customs and continued to possess rights and interests in relation to the claim area.
474		Rather, the evidence indicates that those who the claimants and Mr Robinson suggest may be said to comprise this core group, operate in many respects individually.  The evidence that they as a community of people are united in and by their acknowledgment and observance of a body of law and customs, is limited.  The close relationship between the community and its traditional laws and customs to which the plurality spoke in Yorta Yorta is not sufficiently disclosed by the evidence in this case.
475		In so finding, there is no doubt about the authenticity of the evidence, set out above in the claimants’ submissions, of the continued beliefs of and activities by members of the core group contended for in relation to the claim area.  Some members of the claimants conduct activities on land that may be said, on one view, to be consistent with the exercise of rights and interests possessed under traditional laws and customs.  There is also no doubt that particular individuals have knowledge about particular sites within the claim area and practices in relation to them.  Some, such as Ollie George, are particularly identified by the claimants and the evidence as having a greater knowledge of and association with the claim area than others.  Indeed, the claimants may be said, in many ways, to rely upon Mr George’s knowledge in order to maintain that, as a whole, they hold native title.
476		But therein lies the essence of the claimants’ proof difficulties in relation to this continuity factor.  The evidence suggests, in relation to those claimants who, through their ancestors, have been found only to have an historical association, not an ancestral association, with the claim area, that they have usually gained knowledge in relation to portions of the claim area by reason of their, and their ancestors’, historical residence on a pastoral station or from living in a particular locality within the claim area.  There is no doubt, for example, that many claimants have learned about the presence of the Bimara and important sites having traditional significance, such as Warrdagga, in this way.  They also know that it is important from a Badimia perspective to protect such sites, to look after country, to keep waterholes clean, to respect the Bimara and to respect their elders.  They learned this from their old people.  
477		There is also no doubt that the many members of the claimants are personally close.  They are related by marriage, upbringing and historical association with the claim area and often visit it.  However, as the Court has pointed out on a number of occasions in the course of these reasons, a long and historic association with the claim area is not sufficient under the NTA to justify a determination that the persons with that association hold native title.  The proof of a current society or community of people – even one which has gained knowledge about traditional laws and customs in relation to parts of a claim area – is not, on its own, sufficient to prove that native title exists.
478		The difficulty for the claimants in seeking to prove the continuity of native title, is that the laws and customs, and the rights and interests said to arise under them, that the current claimants identify, are, by inference, those of a group comprising many persons who have had, and whose ancestors have had, but an historical association with the claim area.  It is difficult to find that the activities of claimants relied on and referred to in the claimants’ submissions above, arise under a normative system that is rooted in sovereignty laws and customs.
479		All the evidence suggests that the laws and customs contended for, and the rights and interests possessed thereunder, are those belonging to a “new” society that has been borne of post‑sovereignty disruption to the pre‑sovereignty group.  This is amplified by the fact that so few of the apical ancestors that the claimants rely on to identify the parameters of this society, have been found to be Badimia by descent.  In effect, a “new” society of “Badimia” persons has given rise to a “new”, not “traditional” set of laws and customs and rights and interests possessed under them, in the Yorta Yorta sense.
480		The evidence does not suggest, on the balance of probabilities, that there is a core group of Badimia people with ancestral connections to traditional Badimia country who maintain, and whose ancestors have maintained through generations, a connection to traditional Badimia country by those same traditional laws and customs.  Rather, the society today, even a core group represented by the claimant witnesses, is intermingled with ancestral and historical Badimia people.
481		To put these observations into the more abstract, jurisprudential language of Yorta Yorta, the evidence does not disclose a current “normative system” of this core group that is rooted in the normative system that governed the conduct of the sovereignty Badimia people, and which has been maintained by successive generations of Badimia people since sovereignty.
482		In that regard, as noted, there is a decided lack of ancestral Badimia people, apart from the three (or four) apical ancestors whom the Court has found fit within that group, going back over time, who figure in the evidence.  As to who comprised a relevant society of Badimia, say at around the turn of the 20th century and certainly by mid-century and the 1980s, this is not easily inferred from the evidence, the Aboriginal or the expert.  Certain persons such as Timothy Benjamin, Rita Green (Mrs Thompson) and Ms C George and the persons interviewed by Bates, Tindale, Davidson and Kingsford are often identified or alluded to, but there is little evidence of the cultural activities, for example, of these people or of the older Badimia people.  Ethnographic evidence of such a functioning group, by law and custom, is, on the whole, missing , and that of the claimants alone does not adequately or sufficiently supply it.  The Aboriginal evidence at the hearing described a contemporary group of “Badimia” connecting with the land, but not an earlier group at, say, the 1980s, the mid-20th century or the turn of the 20th century.  Without primary evidence it is not open to the Court to infer a community or society of Badimia that has existed through the generations and which has maintained a connection with the claim area by traditional Badimia laws and customs.
483		While the Court has observed above that the mere fact that some “classical” Aboriginal society cannot be shown to exist today does not necessarily mean that native title may not be proved under the NTA, the fact that, in this proceeding, the hallmarks of such a classical Badimia society are not represented in the evidence to any real degree raises questions.  Apart from Ollie George, who is acknowledged to be the last fluent Badimia language speaker, that language is no longer spoken.  Anything suggesting a ceremonial life amongst the Badimia group, going back for decades, is lacking.  When it comes to male initiation, some young men today may elect to go through men’s Law in other, including nearby, regions and there appears to be some return to that rite by individuals.  But this, of itself, is reflective of the fact that initiation rites, by inference, ceased to be conducted a long time ago by the claimants as a group.  Elders, amongst the male claimants, have not been through the Law.  Probably as a consequence of this, the level of knowledge concerning identified sites, known to be of traditional significance, is very limited.  The mythological narratives which, it may be inferred, were once rich are now no longer known.  None of this should be considered surprising if one accepts the facts, as found by the Court, including that few of the current claimants can follow their family tree back to ancestral Badimia people.
484		In that regard, as the claimants’ submissions set out above properly note, particular claimants gave evidence concerning some Dreaming places and of spirit beings in the land and their use and concern for places of importance in the claim area.  As stated above, the Court does not doubt the authenticity of this evidence .  This knowledge and these practices, however, have not been demonstrated to be the product of a normative system of a community of Badimia people that has subsisted from sovereignty.
485		This state of affairs and conclusion is not recounted to minimise the significance of the claim area to the claimants, because plainly they are closely connected to it, but to explain why it is that the evidence all points to the cessation, at some time in the past, of a normative system that, by inference, once bound ancestral Badimia people and connected them to their country by their traditional laws and customs.
486		In this case, the evidence suggests, and the Court infers, that cultural information obtained by current claimants was not acquired from people who have been shown, on the evidence, to be engaged in any normative system of law and culture of the Badimia people that has endured from sovereignty.  Rather, claimants possess a range of information that they have gained about the extent of Badimia country, places or sites of importance, and cultural practices, otherwise than as a part of a normative system of traditional Badimia law and custom.
487		The life histories of the claimants who gave evidence – who are the principal members of the core group of Badimia people mentioned by Mr Robinson – tend to reinforce this conclusion.  In most instances, they have been born or brought up away from the claim area and without any exposure to the laws and customs traditionally practiced by Badimia people.  Their evidence does not provide any real detail of the laws and customs that their ancestors followed in the generations before them, save to assert that at least the claim area is within what they understand to be traditional Badimia country and that they are Badimia because they understand their old people were Badimia people.  Some know about some important beings, such as the Bimara, and try to protect and enjoy the land and resources.  
488		While some of the claimants are closely connected as members of immediate families, there is little evidence today, or for many years, of a Badimia “society” or community identified by laws and customs having force.  In that sense, the acknowledgement and observance of traditional law and customs has been replaced by some other force which binds the claimants and which is explained mostly by their historical association with the claim area and each other and their recognition of the cultural significance, in Aboriginal terms, of a number of places in the claim area.
489		Up to this point the Court has avoided characterising the claimed normative system of the current Badimia as lacking “vitality” – the expression used in Yorta Yorta – for the reasons given above.  A simple “vitality” test is too impressionistic a test to be useful in determining whether native title exists.  If used on its own, at least, it has the danger of distracting the Court from properly regarding the evidence that may support a finding that a normative system still exists and has never ceased, and by which connection has been maintained.  But certainly it is reasonable to say, at the end of this analysis of the evidence about a normative system, that the claimants have failed to establish that there is currently a normative system of laws and customs which has retained life and force since sovereignty.  The onus is ultimately on the claimants to prove the existence of such a system over the generations, and the evidence is lacking.  The Court is not able reasonably to infer, from the evidence of current claimants, the existence of such a “vital” system since sovereignty.
490		It should be said that this state of affairs is particularly reflected in the current rule as to who among the claimants may make decisions about land use, to speak for country, and how this has likely come about; which has been discussed in the preceding section.
491		The evidence, including the historical evidence of Dr Choo, emphasises that at earlier times in the 20th century, there were relatively large numbers of Aboriginal persons living in the vicinity of Paynes Find and Mount Magnet during the mining era and over the years, and on different pastoral stations in the claim area both before and since the mining era began.  Many of their descendants identify as Badimia today.  As suggested above, they appear to have created a “new” amalgam society born of post‑sovereignty disruption of traditional Aboriginal groups in the broader Murchison area, and beyond.  To the extent that they presently share an identity as Badimia, and may be said to have formed a consensus as to what laws and customs should govern their behaviour in respect of Badimia country today, it is difficult to conclude that those laws and customs constitute an acceptable adaptation of sovereignty laws and customs of the Badimia people.  The process of adaptation is difficult to discern, even by inference, from the evidence.  Rather, it should be inferred the present rule reflects the subtle articulation of new laws and customs giving rise to new rights and interests.  
492		In those circumstances, the asserted right of all Badimia people, even within the core group contended for, to speak for country (with due deference being given to those having the status of an elder), should be construed, in the Court’s judgement, not as an acceptable adaptation of some pre‑sovereignty right to speak for country, but rather as a response to the creation and exigencies of a new post‑sovereignty society, following the development of the pastoral industry and the mining industry subsequent thereto in the claim area, and the arrival of other, non‑Badimia Aboriginal people in the claim area.  
Summary of finding as to continuity
493		Thus, the claimants have not proved continuity of the acknowledgement of traditional law and the observance of traditional customs by a Badimia society from sovereignty to the present.
494		This finding does not mean, however, that the claimants are not, on their own terms and in the eyes of other Aboriginal peoples, Badimia people or that they do not have their own important associations with the claim area; only that the evidence discloses that many of the claimants are unable to trace their ancestral roots to people who possessed native title at sovereignty; and that, while many of the claimants have demonstrated that they are possessed of cultural knowledge about the claim area, that knowledge is not sufficient to prove that the rights and interests that they claim to possess today, in relation to the claim area, are possessed under traditional Badimia laws and customs in respect of traditional Badimia country.
CONCLUSION ON CONNECTION ISSUES
495		In summary, while there is no doubt that, at sovereignty in 1829 in Western Australia, there was a group of Badimia people who were governed by their own laws and customs, the claimants have failed to discharge the onus that they bear to satisfy the Court, on the balance of probabilities, that:
(1)	the claim area falls within the traditional country of the Badimia people at sovereignty;
(2)	the claimants are, in the case of the claimed apical ancestors (save for three or four) descended from persons who were Badimia people; or that
(3)	the laws and customs that the claimants currently assert, under which they say native title is currently possessed, are the “traditional” laws and customs of the pre‑sovereignty Badimia people;  and in particular, 
(4)	the claimants have not proved that the Badimia people, since sovereignty, and in each generation, have continued to acknowledge traditional laws and observe traditional customs to the present day in respect of the claim area.
496		The result is that the Court is unable to find, despite the current evidence of connection relied on by the claimants, that the claimants are connected to the claim area by the traditional laws and customs of the Badimia people as required by the NTA.
EXTINGUISHMENT ISSUES - INTRODUCTION
497		The respondents claim that a number of executive and legislative acts and various related grants of tenure or interests arising therefrom have wholly or partially extinguished native title, or that the NTA validates a range of “future acts”.
498		While it is strictly not necessary to do so in light of the Court’s finding that the claimants are not entitled to a determination that native title exists, it is appropriate to rule on the submissions of the parties concerning extinguishment issues in the event the Court’s connection findings should subsequently be found to be wrong.
499		Following the hearing of closing submissions on 3 April 2013, a number of judgments have been delivered which deal with the extinguishing effect of various types of tenure and confirm the relevant principles to be applied.  See Western Australia v Brown [2014] HCA 8; (2014) 306 ALR 168; Banjima; Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516. These decisions will be applied in the present case where appropriate.
General principles
500		In light of the High Court’s decision in Brown, the relevant approach to be applied to questions of extinguishment may be summarised as follows:
·	A court must make an objective assessment of whether the relevant rights and interests granted in the claim area are inconsistent with native title rights and interests. See Brown at [33];   Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [78].  
·	It is necessary to first identify the relevant rights by reference to their legal nature and content, and not by the way they have been, or will be, exercised: Brown at [34]; Ward at [78].
·	The question whether two or more rights are inconsistent is determined by reference to the nature and content of the rights as they stood at the time of the grant of the allegedly inconsistent rights: Brown at [37].  
·	In this respect, the High Court held that to the extent the decision in De Rose (No 2) supports a notion that extinguishment might be contingent on the later performance of some act in exercise of the “potentially inconsistent” rights granted, this decision is wrong and should not be followed: Brown at [37].
501		The parties largely agree on the principles to be applied, although differ on three points of law: 
(1)	the relevance of evidence of usage of land by non-native title parties;
(2)	the relevance of evidence of pastoral improvements; and
(3)	the onus of proof for extinguishment.
Relevance of evidence of usage of land 
502		The claimants submit that the State goes “slightly further” than the majority in Ward, by stating that “evidence of how the land has been used may be relevant to the extent that it focuses attention upon the right pursuant to which the land is used”.  In the claimants’ view, evidence of usage is not relevant in focusing attention on the right pursuant to which the land is used, except to the extent it evidences the existence of that right.
503		The claimants also take issue with the State’s submission that “regard may be had to the use of reserved land to determine if, and to what extent, the Crown has asserted its beneficial title to that land”.  In their view, the relevant inquiry is the existence of a right, not the extent to which it has been exercised.
504		The State observes that it used the Ward formulation in its submissions, where the majority of the High Court stated, at [78], that “reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used”.
505		The relevant extract from the State’s submissions is identical to the plurality’s reasons in Ward and in my view, there does not seem to be anything in the claimants’ objection.  It is clear that consideration of the way a right has been exercised is only relevant in so far as it assists in identifying the nature and content of the rights in question: Brown at [34]; Ward at [78].  
Relevance of evidence of pastoral improvements 
506		The State contends that the establishment of pastoral improvements in the claim area extinguished any native title rights and interests in relation to the land or waters on which each improvement was constructed, as well as any adjacent land or waters necessary for the enjoyment of the improvement.  It relied on De Rose (No 2) to support this submission and sought to distinguish the position of mineral leases granted under special legislation in Brown, from pastoral leases considered in De Rose (No 2). 
507		Following the High Court’s decision in Brown, the State’s submission on this point must be rejected.  The High Court held at [37] that extinguishment is not contingent on the later performance of some act.  Instead, the question whether rights conferred by pastoral leases are inconsistent with native title rights and interests is to be determined by reference to the nature and content of the rights at the time they were granted.
508		The High Court stated at [60] that the decision in De Rose (No 2) involved a misunderstanding of what was decided in Ward:
It assumed, wrongly, that the principles applied in Ward permit the deferral of consideration of extinguishment until the manner of exercise of the allegedly inconsistent extinguishing rights is known. So to proceed would be to return to and adopt the argument about practical inconsistency advanced but rejected in Wik.

509		As affirmed in Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154; (2012) 208 FCR 505 (Brown FC) at [464] and applied in Ngadju at [15], the most that can be said is that in some circumstances statutory rights may be “incapable of identification in law without the performance of a further act or the taking of some further step beyond that otherwise said to constitute the grant”: Ward at [150].
510		For these reasons, it cannot be accepted that pastoral leases should be treated any differently from mineral leases as far as the principles of extinguishment are concerned. 
511		The State also rejects the claimants’ use of qualifying terms such as “inevitable” or “necessary” inconsistency for the purpose of determining extinguishment.  It says two rights are either inconsistent or they are not and resorting to additional qualifiers is a departure from Ward and Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at [42]-[58].  The State contends the claimants are in effect attempting to revive the “permanent adverse dominion test” which was favoured by Lee J in Ward v State of Western Australia (1998) 159 ALR 483, but rejected by the High Court in Ward.
512		The State submits it is not legitimate to characterise the inquiry as being whether or not it is “inevitable” that two individuals would seek to do inconsistent things on the same square metre of land at the same time, or whether native title holders could temporarily exercise their rights elsewhere.  It contends that the High Court rejected the notion that inconsistent interests might “prevail” over native title rights in Ward at [81]-[82], and if the claimants’ submission were accepted, no tenure would ever extinguish native title.  
513		The claimants contend that at the date of the grant of a pastoral lease, no rights of a pastoralist to make improvements can be said to be “necessarily” or “inevitably” inconsistent with native title rights and the most that can be said is that there exists the possibility of conflict between the rights when they are exercised.  They say that if there were ever a conflict between the exercise of those rights, the pastoralist’s rights would simply prevail for the duration and extent of the inconsistency. 
514		 In my view, the words “necessary” and “inevitable” should not be taken as an additional gloss to the inconsistency of rights test.  Whether the grant of particular tenure has the effect of extinguishing native title rights and interests requires a close analysis of the nature and content of the rights involved.  The descriptors “necessary” or “inevitable” are not an additional step that must be established in order to prove extinguishment.  The ultimate inquiry remains whether there is, objectively speaking, inconsistency between rights granted and native title rights and interests in the claim area at the time the rights were granted. 
515		In Banjima at [857], I found that in certain circumstances, where a statutory grant does not extinguish all native title rights and interests and, subsequently, pursuant to that grant, land is used or developed in ways that are inconsistent with the exercise of native title rights, the exercise of rights under the tenure will prevail over, but not extinguish, any relevant native title rights and interests.  
516		Marshall J accepted in Ngadju at [10] that the effect of the High Court’s decision in Brown is that native title rights were not extinguished by mining activity, “but merely remain incapable of exercise in the areas of that activity whilst it continues”.  
517		As a result of the High Court’s decision in Brown, and for the reasons explained in Banjima at [857], I will likewise proceed on that basis.
Onus of proof for extinguishment 
518		In relation to acts done after 23 December 1996, the State submits it cannot be assumed that these acts are “future acts”, as defined in s 233 NTA, as an act will only be a future act if it affects native title.  It says that whether an act is a future act depends on the nature of any native title rights subsisting in a particular area and the nature of the rights conferred.  The State submits that if native title does not exist in a particular area, including because it has previously been extinguished, then no act done in relation to that land will be a future act.
519		On this basis, the State contends that in the absence of evidence to the contrary, it should be assumed that each interest granted post-23 December 1996 did not affect native title. 
520		Further, the State relies on the presumption of regularity and says that if an issue of non‑compliance with the future act regime arises, it should not be assumed that the relevant procedures were not complied with; instead, the onus is on the claimants to demonstrate non‑compliance.  
521		It contends that even if the fact that a lease or other instrument was not issued is unusual or contrary to a statutory provision, this would not necessarily invalidate the lease or other instrument.  The State relies on the decisions in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91], [97]; State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at [120] (Ward FC); Daniel (2003) at [617]‑[618]; and Neowarra at [435]-[443], [555]-[570] in support. 
522		The State also refers to the affidavit of Mr Ronald Pumphrey dated 19 March 2013, which states that much of the original documentation of historical land tenure was lost or destroyed during times which pre-date the recognition of native title in Mabo and the commencement of the NTA.  The State submits this is entirely to be expected, as there was no reason for governments to retain such material, and the fact that original documentation may no longer exist does not found an inference that the historical tenures did not exist or were not validly created.  
523		It observes that there is a public policy basis for the presumption of regularity, as identified by Sundberg J in Neowarra at [564]-[570], and says there is a “degree of unreality” in the claimants’ approach to proof of some of the older land and mining tenures.
524		The State accepts there may be legitimate reasons to doubt whether necessary procedural steps were taken in some circumstances, however, it submits the presumption of regularity should apply in other circumstances, particularly where the government and tenure holders have proceeded on the basis that a tenure is valid.
525		The claimants submit that the State’s submissions regarding the onus of proof for future acts are inconsistent with other parts of the State’s submissions that seek to have particular acts occurring after 23 December 1996 recognised in any determination of native title under s 225(c) and (d) NTA. 
526		They contend that the State bears the onus of establishing that leases and other interests were validly granted and extinguished native title.  In particular, the State must demonstrate the provision of the NTA which provides for its validity and that the relevant factual criteria are satisfied.  See Harrington-Smith at [339]; Kogolo v State of Western Australia [2011] FCA 1481 at [28]; Sebastian at [257]-[258]. 
527		The claimants say that the requirements for the presumption of regularity are set out in Kingham v Sutton [2002] FCA 506; (2002) 114 IR 137 at [59]:
(1)	the matter is more or less in the past and incapable of easily procured evidence;
(2)	it involves a mere formality or detail of required procedure in the routine of a litigation or of a public officer’s action;
(3)	it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty; and
(4)	the circumstances of the particular case add some element of probability.
528		They also refer to Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 at 514.
529		The claimants thus submit that the presumption of regularity does not apply to acts done in the past by the State, in circumstances where the NTA imposes substantive obligations.  They contend that whether or not the State has complied with the requirements of the NTA is a matter peculiarly within its knowledge and there is no basis to conclude that it is probable that the NTA has been complied with.  They say that the Court may take judicial notice of the fact that the State has on occasion in the past not complied with the NTA and has made that concession in Court.
530		It is well-established that respondent parties bear the onus of establishing the validity of rights and interests which are alleged to have extinguished native title: see Sebastian at [258].  As the claimants submit, it cannot necessarily be assumed that each interest granted after 23 December 1996 did not affect native title and was not a future act, particularly when the claimants have put the State to proof in this regard.
531		Further, to the extent that the presumption of regularity may be considered to have some operation, it does not necessarily assist in establishing the validity of leases or other rights and interests where the satisfaction of formal requirements or conditions precedent is otherwise required for a valid exercise of power.  Whether the validity of a statutory grant has been established on the balance of probabilities will turn largely on the evidence.
The evidence
532		The State principally relies on the evidence contained in the tenure DVD, which is annexed to the affidavit of Mr Lee Rex Morgan dated 13 July 2012.  It also refers to the affidavits of Mr Philip Michael Goulding dated 10 July 2012; Mr Mark Gerard Ryan dated 10 July 2012; Mr John Douglas Connolly dated 2 July 2012; and Mr Steven James Robinson dated 5 July 2012.  
533		In addition, the State filed a number of further affidavits to rebut particular claims of invalidity raised by the claimants, including the affidavits of Mr Pumphrey, Mr Clyde Lannan dated 20 March 2013; Ms Sarah Lealiifano dated 26 March 2013; Mr Ian Robertson dated 19 March 2013; Mr Rod Wahl dated 14 March 2013; and Mr Jamie Strain dated 25 March 2013.
534		The claimants note they raised objections to these tenure affidavits on 20 August 2012.  I accept the State’s submission that the Court dismissed these objections at the hearing on 13 September 2012.  At the hearing, I did not find there was sufficient weight in the objections and allowed the evidence to go in.  Accordingly, all portions of the tenure affidavits are in evidence. 
535		The claimants have admitted the validity of most acts referred to in the State’s written submissions.  To the extent the claimants have not raised any question of validity in respect of a particular tenure, the Court will assume that tenure was validly granted.
536		I also note that the Commonwealth filed submissions on extinguishment on 21 December 2012.  It relies upon the State’s extinguishing grants of tenure in the claim area and generally adopts the State’s submissions regarding its estate in fee simple in lots 23 and 25 Town of Lennonville, special lease 3116/11537 and reserve 22799.  The claimants agree with and adopt these submissions and there is no need to consider them further. 
Areas excluded from any native title determination
537		Schedules B and B1.1-1.7 of the claimants’ application exclude certain areas from the Badimia native title application which are the subject of particular acts.  The exclusions are expressed to be subject to ss 47, 47A and 47B NTA, as they apply to the claim area.
538		The State contends that the Court should make a determination that native title does not exist over the areas in Schedules B and B1.1–1.7, rather than simply excluding these areas from the claim area.
539		The State refers to the decision of Nicholson J in Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254 at [27]-[34] (Daniel (2004)), and submits that while s 61A(2) NTA provides that a claimant application must not be made in relation to any areas where a previous exclusive possession act has been done, s 61A does not deprive the Court of jurisdiction to make a determination that native title does not exist over those areas.
540		It contends that s 61A(2) and (3) NTA were not enacted to protect the future right of native title claimants to make further claims under ss 47, 47A or 47B.  Instead, these provisions recognise that native title cannot exist over land which is subject to a previous exclusive possession act.  The State points to the Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth), which stated that s 61A “reflects the fact that such acts have been confirmed as extinguishing native title”.  It submits it would frustrate this aim to interpret s 61A(2) and (3) as preserving a state of uncertainty as to extinguishment.  The State contends that the issue of whether or not native title has been extinguished by various previous exclusive possession acts has been put in issue and should be determined.
541		In the claimants’ view, these areas affected by previous exclusive possession acts should simply be excluded from any determination pursuant to s 61A(2) and (3) NTA, rather than making a determination that native title does not exist. 
542		The claimants acknowledge the approach of Nicholson J in Daniel (2004), but submit their preferred approach is consistent with the judgments of Mansfield J in Alyawarr at [205]‑[207], [315]; Sundberg J in Neowarra at [581], [592], [594]; and Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2013] FCAFC 18.
543		The claimants note that if the Court were to make a finding that native title does not exist, the claimants would be precluded from making any further native title determination application over the land, in circumstances where ss 47, 47A and 47B might be enlivened.  In their submission, the framework in s 61A(2) and (3) protects that future right and the Court should exercise considerable caution when determining matters that erode the future rights of native title holders.
544		The claimants submit that if the Court adopts Nicholson J’s approach in Daniel (2004), there should only be a finding of no native title in those particular areas where there was an actual dispute as to whether the areas come within the scope of s 61A(2) or (3) NTA, and where there has been no actual dispute, the area should simply be excluded from the determination.  
545		In light of the Court’s finding above that the claimants have not proved native title exists in the Badimia claim group, these issues need not be considered further.
WHETHER CERTAIN ACTS HAVE WHOLLY EXTINGUISHED NATIVE TITLE
Freehold
Freehold titles granted 1 January 1994 – 23 December 1996
546		The claimants dispute the validity of the following freehold titles: CT0199100555, CT0199700452, CT0202100816, CT0202100862, CT0202500339, CT0202500340, CT0202500341, CT0202500342, CT0202500343, CT0202900093, CT0204800684, CT0205000808, CT0205900834, and CT0208600593. 
547		They submit that these tenures were not validated as intermediate period acts as defined in s 232A NTA, because some or all of the area was not previously subject to a valid freehold title, lease or public work, which is a requirement of s 232A(2)(e) NTA. 
548		According to the State, these freehold titles were previously subject to pastoral lease A5600 and, at a later date, A67/182.
549		The claimants contend that there is no evidence that pastoral lease A5600 was granted, as there is no lease instrument in evidence and the only document in evidence is an application for the lease, stating that it was approved.  They submit the fact that an application has been lodged and approved is no basis to infer that the Governor granted a lease, and the presumption of regularity does not apply here, as there is no evidence that the lease was in fact granted, or of any relevant official act.    Accordingly, the claimants submit these acts are future acts which were not validated and are now invalid to the extent they affect native title: see Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 at [20].
550		The State refers to the affidavit of Mr Pumphrey, who stated that prior to 1989, pastoral lease instruments were not issued as a matter of course, and the absence or non-issue of a lease instrument does not mean that a pastoral lease was not granted.  The State contends that where a pastoral lease was not issued, it has relied upon the original application form with the endorsed approval, together with the pastoral register, as the primary evidence of title. 
551		The State acknowledges it is unable to tender lease instruments for pastoral leases A5600 or A67/182, but relies on the following documents as evidence that the leases were, in fact, granted:
·	An application for pastoral lease A5600, stating that it was “approved” by the Commissioner of Crown Lands on 26 January 1882.  The form states the location and area of the lease, name of the lessee, period of the lease, fee paid and that rent was received on 27 February 1882.
·	An application for pastoral lease A67/182, stating that it was “approved” by the Commissioner of Crown Lands on 3 May 1888.  The form states the location and area of the lease, name of the lessee, period of the lease, fee paid and that rent was received on 29 February 1888.
·	The pastoral register entry for pastoral lease A67/182, which provides details of the location and area of the lease, name of the lessee, period of the lease, rent payable and that the pastoral lease was transferred from the original holder to another lessee and that the leaseholder failed to pay rent in 1897.  The pastoral register also shows that a lease was issued on 19 February 1894, although the State has been unable to locate a copy of this lease.
·	A cancelled public plan showing the location of pastoral lease A67/182.  The State says that only current and therefore granted tenure was depicted on public plans.
552		In any event, the State says that an approved lease application is sufficient to establish that a lease was granted, having regard to the presumption of regularity: see Ward FC at [611]; Daniel (2003) at [557]-[585].  It submits the fact that rent was paid and that pastoral lease A67/182 changed hands is compelling evidence that the leases were granted.  On this basis, the State submits that the freehold titles were previously subject to a valid pastoral lease, were therefore validated as intermediate period acts and were also previous exclusive possession acts, as defined in s 23B NTA, which completely extinguished native title.
553		In respect of pastoral lease A5600, there is no lease instrument in evidence and the only relevant document is an application for the pastoral lease, stating that it was approved on 26 January 1882, but disclosing no evidence that a lease was, in fact, issued.  I am not satisfied on the balance of probabilities that a lease was granted for this pastoral lease and find that it was not validly made.
554		The evidence for pastoral lease A67/182 is more comprehensive and includes the application indicating that it was approved on 3 May 1888, a cancelled public plan and a registry entry, which shows that a lease was issued on 19 February 1894, the lease changed hands, there was a failure to pay rent in 1897 and various other details.  
555		In Daniel (2003) at [558], Nicholson J considered the position of certain pastoral leases, where register entries contained a column headed “dated” which was inferred to be the date of the lease, and had details of unpaid rent in 1879.   His Honour inferred from this evidence that valid leases had come into existence and made “due allowance for the difficulties of preserving records against the vicissitudes of time”.
556		The evidence in respect of pastoral lease A67/182 is similar in this case.  While the State is unable to tender a lease instrument for this pastoral lease, I am satisfied on the evidence that a lease instrument was in fact issued and this pastoral lease was validly granted.
Freehold titles granted after 23 December 1996
557		The claimants contest the validity of freehold titles CT0209800029, CT0222000803, CT0222000804 and CT0222000807, on the basis that their grant did not comply with the future act provisions of the NTA.
558		In relation to CT0209800029, the claimants submit that evidence shows this land was UCL prior to the grant of freehold and prior to the temporary lease which immediately preceded it.  They say that this act is a future act for the purpose of s 233 NTA, yet there is no evidence that the State afforded the claimants any procedural rights in relation to this act, as defined in s 253 NTA.  Further, the claimants submit there is no evidence that any of the criteria for validity of a future act under Pt 2, Div 3 NTA apply and so the act appears to be invalid to the extent it affects native title. 
559		In relation to freehold titles CT0222000803, CT0222000804 and CT0222000807, the claimants submit the State has not led any evidence to prove these acts were validly done under the NTA, including affording the claimants relevant procedural rights.  They contend there is no evidence the land was subject to a prior extinguishing event.  
560		Further, the claimants contend these acts appear to be compulsory acquisition future acts to which Pt 2, Div 3, Subdiv P NTA should have applied.  They note that there is nothing in the evidence to suggest that the State complied with s 26(1)(c)(iii) NTA and this provision would not prevent the right to negotiate.  On the basis that the claimants should have been afforded the right to negotiate but were not, they submit the acts are invalid to the extent they affect native title, pursuant to s 24OA NTA.
561		In response, the State contends that these freehold titles were not future acts, as native title had previously been wholly extinguished over the area by reserve lease 0653/41A.  
562		The claimants have raised issues with the validity of reserve lease 0653/41A, which I address below and accept.  As such, reserve lease 0653/41A was not validly granted and did not extinguish native title rights.  To the extent the State relies on the extinguishing effect of reserve lease 0653/41A, this submission must be rejected.
563		The State has not separately addressed the claimants’ submissions regarding the compliance of these freehold titles with the future act provisions of the NTA.  I generally accept the claimants’ submissions and am not satisfied the State has discharged its burden of proving that the freehold titles CT0209800029, CT0222000803, CT0222000804 and CT0222000807 were validly created and complied with the relevant provisions of the NTA.   
Special leases
564		The claimants raise issues concerning the validity of certain special leases granted in the claim area.  
565		In Banjima, I considered the requirements under the Land Act 1933 (WA) that special leases be the subject of a formal lease.  For the reasons given at [885]-[898], the issue of a lease instrument was a requirement for a special lease to be validly granted under ss 33, 116 and 117 Land Act 1933.  Having regard to the relevant provisions, general context and general law at relevant times, Parliament intended that a leasehold interest could only be created in the prescribed manner and form.  
566		In the circumstances of that case, I found that because no formal lease was issued in respect of 19 impugned special leases granted under the Land Act 1933, the power to grant such leases was not validly exercised and no relevant grant of a special lease was valid or effectual in law.
567		More recently in Ngadju, Marshall J considered the validity of various special leases granted under s 116 Land Act 1933 and s 152 of the Land Act 1898 (WA), where no formal lease instrument had been issued.
568		His Honour observed at [24] that the State had sought to distinguish Banjima on the basis that there was no reference in that judgment to a schedule to relevant legislation which provided a form for an application for a special lease.  Marshall J found that the State’s attempt to distinguish Banjima was unpersuasive and the fact that a form is provided can have no bearing on whether or not, as a matter of fact, any particular lease was “signed and sealed”.  Marshall J noted that Banjima is a recent judgment of this Court, which is directly on point on this issue and is persuasive.
569		On the basis outlined in both Banjima and Ngadju, I consider that where no formal lease was issued in respect of special leases granted under the Land Act 1933 or Land Act 1898, the grant of the special lease was not valid or effectual in law.  Likewise, where there has been a failure to execute a lease in accordance with the relevant provisions of the Land Act 1933 or Land Act 1898, such a lease will also be invalid.
570		Further, as Marshall J observed in Ngadju at [26], the State cannot rely on the presumption of regularity to cure any defect in the grant or execution of a relevant lease.  A failure to execute a lease in accordance with the relevant provisions will invalidate any purported grant of a special lease.
571		In the event a special lease was not validly granted, it is not necessary to consider further submissions as to the nature of rights conferred by the special lease. 
Special lease 0957/152 
572		The claimants submit that special lease 0957/152 was an invalid act, as there is no lease instrument in evidence.  They say the register in evidence indicates that a lease was applied for and approved, but not issued, and there is insufficient evidence to demonstrate that the lease existed or what its terms were. 
573		The State accepts that it is unable to tender a lease instrument in relation to special lease 0957/152, and also that the register extract indicates that a lease instrument was never created.  It relies on the register entry as evidence that it was granted, which includes details of the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable, date of approval and that expected rent failed to be paid during the period of the lease.
574		The State’s submission that the issue of a lease instrument was not a formal requirement of validity under ss 152 or 153 Land Act 1898 and that the register extract is sufficient evidence of a valid grant is at odds with the reasoning in Banjima and Ngadju. 
575		Applying Banjima and Ngadju, I am not satisfied that a lease instrument was issued in respect of special lease 0957/152, in circumstances where there is no lease instrument in evidence and the register extract indicates that a lease instrument was never created.  As such, the grant of the special lease was not valid and did not extinguish native title. 
Special leases 4371/153, 4372/153
576		The claimants submit that special leases 4371/153 and 4372/153 were not valid acts, as there is no lease instrument in evidence for these leases and register entries indicate that no lease instrument was issued.  
577		The State acknowledges that it is unable to tender a lease instrument for special leases 4371/153 and 4372/153 and that register extracts indicate a lease instrument was never created, but relies on the register entries as evidence that these special leases were granted.  It says the register entries indicate the location and area of the leases, name of the lessees, period of the leases, rent payable and that both leases were approved on 11 May 1920 for the purpose of town or suburban lands within Paynesville.
578		In any event, the State submits that the area of special leases 4371/153 and 4372/153 was also covered by reserve lease 0157/41 which wholly extinguished native title.
579		There is no lease instrument in evidence for these special leases and no record in the register entries that a lease instrument was granted.  I infer that no formal lease was issued in respect of these special leases and they were not validly granted.
580		As to the State’s submission that the area of the special lease was covered by reserve lease 0157/41, the claimants also challenge the validity of this reserve lease.  These submissions are considered in detail below.
581		The Court has found, below at [636], that reserve lease 0157/41 was validly granted so there is no need to make any findings about the validity of these special leases. 
Special leases 3116/00976, 3116/05615
582		In relation to special leases 3116/00976 and 3116/05615, the claimants submit that the State has only put an extract from the register into evidence and no lease instrument has been produced.  They acknowledge that the register extracts indicate that leases were granted, but submit the Court should give minimal evidentiary weight to these extracts, given the lease instruments have not been produced.  The claimants observe that the High Court in Ward at [368] affirmed the primacy of a signed instrument.
583		The State acknowledges it is unable to tender a lease instrument for these special leases, however, submits the following evidence demonstrates that they were granted:
·	Special lease 3116/00976: a register extract indicating the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 12 December 1940.  The entry also shows that the leaseholder changed on a number of occasions and that the lease was renewed.
·	Special lease 3116/05615: a register extract indicating the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 24 June 1974.  The entry shows that the leaseholder changed on a number of occasions and that rental remained the same on 1 April 1984.  The affidavit of Ms Lealiifano also provides the original lease application form, a copy of the minute paper for the Executive Council which considered and endorsed the application, a notice of approval sent to the lessee, and a copy of the draft lease document.
584		The State submits that to the extent there is any uncertainty as to whether lease instruments for these special leases were granted, this is not a requirement for a valid grant under the Land Act 1933 and the evidence is sufficient to find that the special leases were granted. 
585		Further, it says the area of special lease 3116/05615 was previously covered by special lease 3116/02637 which wholly extinguished native title.
586		While the State refers to register entries in respect of these special leases, it has not tendered lease instruments and it is not clear whether lease instruments were in fact issued.  I am not satisfied on the evidence that a formal lease was issued in respect of special lease 3116/00976.  Accordingly, I find that this special lease was not validly granted and did not extinguish native title.
587		I would have reached a similar conclusion in respect of special lease 3116/05615.  However, in circumstances where this area was previously covered by special lease 3116/02637 and the claimants have raised no issue as to that lease’s validity, I accept the State’s contention that special lease 3116/05615 wholly extinguished native title.
Special lease 3116/05266
588		In relation to special lease 3116/05266, the claimants submit there is no lease instrument in evidence and the extract from the register shows that no lease was issued.
589		The State accepts it cannot tender a lease instrument for this special lease and it is not clear whether a lease instrument was created, but relies on a register extract indicating the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 20 February 1973.  The register also shows that the lease was reappraised in its fifth year, which the State says is a further indication a lease came into existence.
590		Applying Banjima and Ngadju, I am not satisfied that a lease instrument was issued in respect of this special lease, and as such, the grant of the special lease was not valid and did not extinguish native title. 
Special lease 3116/01287
591		In relation to special lease 3116/01287, the claimants submit there is no lease instrument in evidence and the register extract shows that no lease was issued.  They say the register extract shows this special lease was issued under both ss 116 and 117 Land Act 1933 and it could not have been a valid exercise of power.
592		The State recognises that it cannot tender a lease instrument for this special lease and it is not certain whether a lease was issued, but refers to a register extract indicating the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 11 December 1945.
593		It contends this special lease was granted pursuant to s 116, as opposed to s 117 Land Act 1933.  In any event, the State submits that this lease was previously subject to special lease 3116/00885 which wholly extinguished native title.
594		Applying Banjima and Ngadju, I would not have been satisfied that a lease instrument was issued.  However, the area of special lease 3116/01287 was previously subject to special lease 3116/00885.  In circumstances where the claimants have not raised an issue with the validity of special lease 3116/00885, I accept that this special lease extinguished native title. 
Special lease 3116/01666
595		The claimants contend that there is no lease instrument in evidence for special lease 3116/01666 and the extract from the register shows that no lease was issued.  Further, they say the register extract shows that this lease was issued under s 117, rather than s 116 Land Act 1933.
596		The State acknowledges it is not able to tender a lease instrument for this special lease, but relies on a register extract indicating the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 28 April 1950.
597		It contends this special lease was granted pursuant to s 116, rather than s 117 Land Act 1933.  Further, it submits that this lease was previously subject to special lease 3116/00885 which wholly extinguished native title.
598		In circumstances where the area of special lease 3116/01666 was previously subject to special lease 3116/00885 and the claimants have raised no issue as to its validity, I accept that special lease 3116/00885 wholly extinguished native title.
Special lease 3116/02816
599		The claimants submit that special lease 3116/02816 was not validly granted, as the register entry indicates that no lease instrument was issued.  
600		The State acknowledges that it is unable to tender an instrument for special lease 3116/02816 and it is not clear whether a lease instrument was issued, although submits that the register extract in evidence proves that a lease was granted.  The register indicates the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 18 July 1960.  In any event, the State submits that the area of 3116/02816 was also covered by reserve leases 332/0501 and 0653/41A, which wholly extinguished native title.
601		The claimants have challenged the validity of reserve leases 332/0501 and 0653/41A and I consider their submissions that these leases were not validly issued below. 
Residential leases 
602		Residential leases 0333/22 and 0478/22 were granted pursuant to s 153A Land Act 1898 and the Land Regulations 1905 (WA).
603		The claimants submit there is insufficient evidence to demonstrate that these leases were validly granted and/or that they extinguished native title.  They note that the leases were purportedly granted as residential leases under regs 2 and 5 Land Regulations 1905, although there is insufficient evidence that these leases existed, as there are no lease instruments in evidence.
604		The State acknowledges that it is unable to tender an instrument for residential leases 0333/22 and 0478/22 and it is not clear whether these lease instruments were created.  However, it submits that the register extracts prove that these leases were granted and indicate the location and area of the leases, name of the lessees, period of the lease, purpose of the leases, rent payable and that the leases were approved.  It noted that rent was paid (and unpaid) on a number of occasions.
605		The State relies on its construction of the Land Act 1898 to the effect that a lease instrument was not required to be issued for a valid grant to take place and, accordingly, this evidence is sufficient to find that the residential leases were granted.
606		Based on Banjima and Ngadju, the State’s submission as to the formal requirements for a valid grant under the Land Act 1898 must be rejected.  I accept, for the reasons outlined in those decisions, that where no formal lease instrument has been issued under the Land Act 1898, the grant is not valid or effectual at law.
607		In relation to residential leases 0333/22 and 0478/22, I infer that no formal lease instrument was issued, and as such, these residential leases are invalid.
Reserve leases 
Reserve leases without lease instruments
608		Reserve leases 0225/41A and 0653/41A were granted pursuant to s 41A Land Act 1898 and reserve leases 332/0501, 332/1189, 332/1407 and 332/1550 were granted pursuant to s 32 Land Act 1933.
609		The claimants submit there is insufficient evidence to demonstrate that these reserve leases were validly granted, as there is no documentation of any lease instrument in evidence.
610		Further, the claimants assert that reserve lease 0225/41A is not granted for any specific purpose and its grant is therefore an invalid exercise of power, as s 41A Land Act 1898 requires that the lease be granted “for any purpose”.
611		The claimants also submit that the register extract for reserve lease 0653/41A lacks detail and there is insufficient evidence to ascertain where the lease was granted or whether it was in fact granted over a reserve.
612		The State repeats its submission that the issue of a lease document was not a requirement for a valid grant under the Land Act 1898 or Land Act 1933.  It acknowledges it is unable to tender a lease instrument for these reserve leases, but relies on the following documents to prove that the leases were granted: 
·	Reserve lease 0225/41A: the original lease application form (including the conditions upon which the lease was to be granted) indicates the location and area of the lease, name of the lessee, period of the lease, rent payable and that the lease was approved on 16 November 1909 and an approval notice issued to the lessee on 17 November 1909.
·	Reserve lease 0653/41A: a register extract indicates the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 19 October 1915.
·	Reserve lease 332/0501: a register extract indicates the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 11 May 1937.
·	Reserve lease 332/1189: the original lease application form (including the conditions upon which the lease was to be granted) and register extract indicate the location and area of the lease, name of the lessee, period of the lease, rent payable and that the lease was approved.  The application form shows that an approval notice was issued to the lessee.
·	Reserve lease 332/1407: a register extract indicates the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 22 April 1963.  The affidavit of Ms Lealiifano provides the original lease application form (including the conditions upon which the lease was to be granted), a copy of the minute paper for the Executive Council which considered and endorsed the application and lease conditions, and a notice of approval which was sent to the lessee.
·	Reserve lease 332/1550: a register extract indicates the location and area of the lease, name of the lessee, period of the lease, purpose of the lease, rent payable and that the lease was approved on 24 July 1968.  The affidavit of Ms Lealiifano also provides the original lease application form (including the conditions upon which the lease was to be granted), a copy of the minute paper for the Executive Council which considered and endorsed the application and lease conditions, and a notice of approval which was sent to the lessee.
613		Further, the State contends that the claimants’ submissions as to the validity of reserve lease 332/1550 are not relevant, as the area was previously covered by reserve lease 332/1775 which the claimants have accepted wholly extinguished native title.
614		As to reserve lease 0225/41A, the State recognises that no purpose is identified and the Court may not be able to infer that it conferred exclusive possession.
615		As found in Banjima and Ngadju, the grant of a lease instrument was a requirement for a valid lease under the Land Act 1898 and Land Act 1933.  Accordingly, in the absence of evidence that any lease instrument was issued for these reserve leases, there is insufficient evidence that these reserve leases were validly granted or that they had the effect of extinguishing native title, with the exception of reserve lease 332/1550.
616		In respect of reserve lease 332/1550, which was previously covered by reserve lease 332/1775, the validity of which is not challenged, I accept that the grant of reserve lease 332/1775 extinguished native title.
Reserve lease granted pursuant to s 33(3) Land Act 1933
617		The claimants submit that reserve lease 333/0546 was not created in compliance with s 33(3) Land Act 1933, as there is no lease instrument in evidence and the register extract indicates that no lease instrument was issued.  They say the creation of the lease was an invalid exercise of power and the lease was invalid.
618		The State accepts that it is unable to tender an instrument for reserve lease 333/0546, however, relies on the following documents as proof that it was granted: 
·	A register extract indicating the location and area of the lease, name of the lessee, period of the lease, purpose of the lease and rent payable.
·	An Order in Council published in the Western Australian Government Gazette (Gazette) on 14 July 1950, by which the Governor directed that reserve 13084 be leased for a term of 1 year and thereafter from year to year to the Commonwealth of Australia to be held in trust for the purpose of a “rifle range”.  (The State notes reserve lease 333/0546 was granted over reserve 13084.)
·	The affidavit of Ms Lealiifano which provides the original lease application form, a copy of the minute paper for the Executive Council which considered and endorsed the application and the lease conditions, and a notice of approval which was sent to the lessee.
619		The State accepts that it is not clear whether a lease instrument was created, but submits that the Land Act 1933 did not require a lease instrument to be issued for a valid grant to take place.  In any event, it says the area of this lease was previously covered by reserve lease 0618/42 which the claimants have agreed wholly extinguished native title.
620		On the basis indicated in Banjima and Ngadju, a lease instrument was required to be issued for a valid grant under s 33(3) Land Act 1933.  However, as the area of this lease was previously covered by reserve lease 0618/42, the validity of which is not challenged by the claimants, I find that the grant of reserve lease 0618/42 extinguished native title.
Reserve leases granted over State forest
621		Reserve leases 0242/41A, 1218/41A and 332/1167 were granted over the same portion of reserve 12557 pursuant to s 41A Land Act 1898.  This area was declared a State forest (the Austin Townsite State Forest), under s 8 of the Land Act Amendment Act 1904 (WA).
622		The claimants submit that reserve leases 0242/41A, 1218/41A and 332/1167 did not extinguish native title, as they were not valid acts under s 10 of the Land Act Amendment Act 1905 (WA) or s 41A Land Act 1898.
623		The claimants say that the reserve over which these leases were granted is a reserve for the purpose of “State forest”, as defined in the Forests Act 1918 (WA). They note that s 29 Forests Act provides that any pastoral lease within the area of a State forest must be surrendered to the Crown and the lessee be given an option to obtain a forest lease under s 40 for purposes that include grazing.  They say that s 26 Forests Act allows for the grant of a lease under the Land Act 1898, but this must be read in the context of s 29 which precludes the grant of a pastoral lease under the Land Act 1898.
624		The claimants submit that reserve leases 0242/41A and 1218/41A are for the purpose of grazing and are therefore pastoral leases.  They contend it was an invalid exercise of power to grant these leases under s 10 Land Act Amendment Act 1905 or s 41A Land Act 1898 and these leases should have been granted as forest leases under s 40 Forests Act.  
625		The claimants submit that reserve lease 332/1167 was granted for grazing pursuant to s 32 Land Act 1933 and as with the reserve leases above, its grant was an invalid exercise of power and it should have been granted as a forest lease under s 40 Forests Act.
626		The State submits that the Land Act Amendment Act 1904 did not contain the same provisions as the Forests Act which replaced it and it did not require that pastoral leases be surrendered or converted upon the creation of a State forest, or provide for “forest leases”.
627		It says that reserve lease 0242/41A was granted in 1910, prior to the introduction of the Forests Act, and was therefore validly granted pursuant to both the Land Act Amendment Act 1904 and Land Act 1898.  As this reserve lease extinguished native title upon its grant, it submits that the validity of reserve leases 1218/41A and 332/1167 is otherwise of no consequence.
628		In any event, the State contends that the claimants have misconstrued the provisions of the Forests Act.  It says s 40 Forests Act gave the Conservator of Forests the power to grant leases for grazing, agricultural and other purposes, and it did not, on its terms, prevent the exercise of power to lease areas over State forests conveyed by the Land Act 1898 or the Land Act 1933.  The State contends that while s 29 Forests Act required pastoral leases situated within the boundaries of State forests to be surrendered to the Crown and/or replaced with a forest lease, it did not prevent any future creation of a pastoral lease under the Land Act 1898 or the Land Act 1933 over State forests.  Accordingly, it asserts that reserve leases 1218/41A and 332/1167 were also validly granted and had any native title continued to exist, it would have been wholly extinguished by their grant.
629		I accept the State’s submissions and find the grant of the reserve leases in question to be valid.
Reserve leases granted over reserves not immediately required for their reserved purpose
630		Reserve leases 0157/41, 0225/41A and 332/1223 were all granted over reserves for the purpose of “common” or “commonage”.  Reserve lease 332/1189 was created over a reserve for the purpose of “public utility”.
631		The claimants submit that reserve leases 0157/41, 0225/41A, 332/1223 and 332/1189 did not extinguish native title as they were not valid acts.  They say reserve leases under s 41A Land Act 1898 or s 32 Land Act 1933 could only be granted if the reserve is “not immediately required for the purpose for which it was made”.
632		In their submission, it was not within the power of the Governor or the Minister under the relevant legislation to grant a reserve lease over a reserve created adjacent to a townsite for the purpose of a “commonage”, “common”, or “public utility”, because by its nature the reserve was required for the purpose for which it was made.  The claimants observe that the power of the Governor to grant reserve leases was expanded, specifically for this purpose, in s 2 of the Land Act Amendment Act 1960 (WA), after the relevant leases were granted.
633		The State contends that the determination of whether a lease is “not immediately required for the purpose for which it was made” was a matter for the subjective opinion of the Governor or Minister and did not import any objective elements.  It says such an opinion could be formed in relation to reserves for the purpose of “commonage” or “public utility”, as reserves for these purposes may or may not have been in use or otherwise required.  
634		In support, the State observes that the “public utility” reserve over which reserve lease 332/1189 was granted is located in the town of Boogardie.  It says that according to Dr Choo, Boogardie reached its peak in 1905 and was no longer in existence by the time the reserve lease was granted in 1958.  Similarly, it notes that the “common” reserve over which reserve lease 332/1223 was granted was located outside of Lennonville, which Dr Choo stated was in decline by 1905 and destroyed by fire in 1909.
635		The State does not necessarily accept the accuracy of Dr Choo’s opinions, but says these examples demonstrate the fallacy of the argument that a reserve for the purpose of “commonage” or “public utility” must always be required for its purpose.
636		In the circumstances, the Court accepts the submissions of the State.  The claimants have not demonstrated any unlawful exercise of power.  These reserve leases are valid.
Restrictions on reserve lease to the natural surface of the land
637		Reserve lease 332/1813 is granted pursuant to s 32 Land Act 1933 and is in standard form, except that the words “and so much of the land as is below the natural surface to a depth of … metres” have been deleted. 
638		The claimants submit the effect of this deletion is that the lease is restricted to the natural surface of the land.  They admit that native title rights and interests on the natural surface of the land have been extinguished, but do not admit that non-exclusive native title rights and interests below the natural surface have been extinguished, including, for example, the claimed rights to take resources including water, soil, sand, stone, flint, clay, gravel and/or ochre.  They submit there is no inconsistency between the rights held by the former lessee and their claimed native title rights below the natural surface.
639		The State submits the extinguishment of any native title rights in relation to the surface of the land must carry the consequence that any native title rights and interests to take resources from below the surface have also been extinguished.  It says the claimants’ submission would seem to envisage a right to conduct subsurface activities underneath the land but subject to a condition allowing access by way of a subterranean tunnel, and this submission should be rejected. 
640		In the Court’s view, the State’s submission should be accepted.  The deleted words were intended to limit the clause which would otherwise have been effective to convey rights to subsurface land.  This removal implies no such limitation.
General leases
641		The claimants submit that general leases GE J836225 and GE J836226 were not validly granted, as they do not accept that the compulsory acquisition undertaken prior to the grant of the leases (taking orders I613607 and I613606) complied with Pt 2, Div 3, Subdiv P NTA.
642		The claimants note that the State has referred to a letter from the project proponent to the State, which indicates that native title and cultural heritage agreements have been negotiated with the claimants.  They say they are aware of a relevant cultural heritage agreement in the area, but have no record of any native title agreement being negotiated.  Unless further evidence is provided, the claimants submit that the State’s evidence does not establish the validity of the compulsory acquisition or grants of the general leases.
643		The claimants submit that the same reasoning applies to EASMT 5, which is within the area of the same taking order (I613606) as general lease GE J836226.  
644		The State contends that Subdiv P did not apply to the compulsory acquisition giving effect to the grant of the leases, as the purpose of the compulsory acquisition was to provide an “infrastructure facility”, as defined in s 253 NTA.  It notes that pursuant to s 26(1)(c)(iii)(B) NTA, Subdiv P does not apply to a compulsory acquisition where the purpose is to provide an infrastructure facility.
645		The State submits that for taking orders I613607 and I613606, the purpose of the compulsory acquisition was the “construction, operation and maintenance of a gas pipeline” (the Mid West High Pressure Gas Pipeline) which clearly falls within the definition of an infrastructure facility in s 253(e) NTA. 
646		Accordingly, the State submits that the procedural rights in Subdiv P did not arise; rather, the provisions of s 24MD(6A) and/or (6B) applied.  The State says there is no suggestion by the claimants that s 24MD(6A) was not complied with.  It says if s 24MD(6B) applied, which is denied, the affidavit of Mr Wahl demonstrates that no objection under the provision was referred to the independent person for resolution and accordingly, s 24MD(6B) was also complied with. 
647		The State submits that the letter from the project proponent indicating that the native title and heritage agreements had been obtained is further evidence that the provisions of s 24MD(6A) and/or (6B) were complied with. 
648		For these reasons, the State asserts that the compulsory acquisition undertaken to facilitate the grant of general leases GE J836225 and GE J836226 was valid and effective to extinguish native title and the grant of the leases was also valid.
649		The Court accepts the State’s submissions and finds these general leases are valid.
Vested reserves
Reserves 02742, 02751
650		Reserves 02742 and 02751 were set aside under reg 32 Land Regulations 1887 (WA) for the purpose of “public utility” by notice published in the Western Australian Government Gazette on 18 January 1895 (not reg 29 Land Regulations 1882 (WA) as initially indicated in the claimants’ written submissions).
651		The claimants submit that reserves 02742 and 02751 did not extinguish native title because they were not valid acts.  The claimants say that these reserves were created for the purpose of “public utility”, which lacks the specificity to bring it within the scope of the legislation: see Sebastian at [251]. 
652		The State refers to Sebastian and Ward and submits that a reserve for the purpose of “public utility” is valid.  It says that as reserves 02742 and 02751 were validly created, any subsequent dealings with them are also valid.
653		I considered similar submissions in Banjima and found at [906]-[909] that the reasoning in Sebastian applies to the proper construction and application of reg 32 Land Regulations 1887.  For a reserve under reg 32 to be validly created, one of the particular public interest objects or purposes in reg 32(n) must be specified, which includes “public utility”.  
654		In Banjima at [908], I accepted that the reserve in question was validly created, as it was created for the particular purpose of “public utility”, which is one of the precise objects set out in reg 32 Land Regulations 1887.
655		In this case, I likewise accept that reserves 02742 and 02751, which were set aside for the purpose of “public utility” under reg 32 Land Regulations 1887, were validly created.
Reserve 24634
656		The documents in evidence indicate that the area of reserve 24634 was expanded by 162 square metres in 2010. 
657		The claimants note that the expansion of the reserve is prima facie a future act, but there is no evidence that it was done in accordance with the procedures under the Land Administration Act 1997 (WA) or the NTA, and therefore this expansion does not extinguish native title. 
658		The claimants contend that the attestation of the Amendment of Reserve Order and the Management Order of 13 October 2010 are not witnessed, do not comply with s 145 of the Transfer of Land Act 1893 (WA) and cannot be used as evidence that any order was made.
659		The State contends that reserve 24634 was expanded in 2010 to include a portion of current road 169.  It says that the expansion of reserve 24634 was not a future act as the claimants agreed this road wholly extinguished native title.  However, that does not appear to be so.  In any event, the Court finds below that current road 169 extinguished native title.
660		In circumstances where the expansion of reserve 24634 covered a portion of current road 169 which I find below wholly extinguished native title, I accept the State’s submission that the expansion of reserve 24634 was not a future act that affected native title. 
Reserve 29839
661		The documents in evidence indicate that the area of reserve 29839 was expanded in 2005. 
662		The claimants submit that the expansion of the reserve in 2005 is prima facie a future act, but there is no evidence that it was done in accordance with the relevant procedures under the Land Administration Act or the NTA, and it should be presumed that the expansion of the reserve was not validly done. 
663		The State submits that reserve 29839 was set aside as a reserve for the purpose of the “protection of the Rabbit Proof Fence” and only a small portion of the reserve falls within the claim area. It says the increase in area in 2005 was not within the claim area and the portion within the claim area has not changed in size or location since its creation and vesting under the Land Act 1933 in 1969.
664		On this basis, the State submits that the question whether the expansion of reserve 29839 was a future act has no bearing upon this proceeding.
665		As the expansion of reserve 29839 in 2005 did not relate to an area within the claim area, I accept the State’s submission that whether this was a valid future act has no bearing on this proceeding.
Reserve 41109
666		The documents in evidence indicate that the area of reserve 41109 was expanded in 2003. 
667		The claimants submit that this expansion is prima facie a future act, but there is no evidence it was done in accordance with the relevant procedures under the NTA.
668		Further, they contend there is no evidence that the correct procedures under the Land Administration Act were complied with.  In particular, they state that the attestation of the order of 9 July 2003 is not witnessed, does not comply with s 145 Transfer of Land Act 1893 and cannot be used as evidence that any order was made.  Similarly, the claimants note that the Management Order of 9 July 2003 is not witnessed, does not comply with s 46 Land Administration Act or s 145 Transfer of Land Act 1893 and cannot be used as evidence that any order was made.
669		The State contends that reserve 41109 was expanded in 2003 to include a lot which, at the time of the expansion, was located to the north of reserve 41109 and was previously subject to garden area GA 58 M, granted under the Mining Act 1904 (WA).  The State submits that native title was wholly extinguished by the grant of garden area GA 58 M, and, accordingly, the expansion of reserve 41109 over the area was not a future act.
670		The validity of market garden areas registered in the claim area is considered in more detail below.  Consistent with the reasoning in Banjima, at [1546]‑[1551], I find that the registration of a market garden area did not extinguish any native title rights other than a right to control access. 
671		On this basis, the State’s submission that the grant of garden area GA 58 M wholly extinguished native title must be rejected.
672		I otherwise accept the submissions of the claimants that by reason of instances of procedural non‑compliance alleged, no reserve was effectually created.  The purported expression of the reserve would have been a future act in any event.  The Court finds reserve 41109 was invalidly created.
Reserves where additional rights are asserted
673		Reserves 09735, 09743 and 14999 were created pursuant to s 39 Land Act 1898 for the purpose of “rifle range” or “rifle range (Rifle Club)”.
674		The claimants submit that these reserves do not extinguish any non-exclusive native title rights.  They disagree with the State’s suggestion that the circumstances are similar to Daniel (2003) at [689], [1060]-[1067].  The claimants note that in Daniel (2003), the two rifle range reserves were subject to special leases to the Commonwealth.  In the claimants’ submission, Nicholson J accepted at [1061]-[1063] that these reserves extinguished native title because of the reservation of land for the purpose of a rifle range, together with the exercise of the power to lease for that purpose.  The claimants contend that reserves 09735, 09743 and 14999 in this case were neither leased to the Commonwealth nor vested.
675		The claimants submit that the creation of a reserve for the purpose of a rifle range does not give any right to any person, let alone any right that is inconsistent with the continued exercise of non-exclusive native title rights and interests.
676		Further, they observe that the use of firearms on land is in itself not inconsistent with the continued existence of native title rights and interests. For example, pastoralists exercising their pastoral rights on a non-exclusive pastoral lease have rights to use firearms.
677		They accept, however, that reserve 13084, which is leased to the Commonwealth, is reserved for the purpose of Rifle Range (Rifle Club) and extinguished all native title rights and interests, consistent with the reasoning of Nicholson J in Daniel (2003) at [689], [1060]‑[1067].
678		In the State’s submission, native title rights have been wholly extinguished by the creation of reserves for the purpose of a “rifle range”.  The State notes that in Daniel (2003) at [689], Nicholson J held that the reservation of land for the purpose of a “rifle range” and “pistol range” was wholly inconsistent with the continuation of any native title rights and interests in the land covered by the reserves. 
679		The State contends that the right to use land as a rifle range is totally inconsistent with the continued exercise of any native title rights and interests, whether or not the reserve was leased.  It says the analogy with the use of firearms by pastoralists is not helpful.
680		Further, it notes that contrary to the claimants’ submission, reserves 09735 and 14999 were leased, and so even on the claimants’ reasoning, native title was wholly extinguished over the area of the two reserves.
681		The Court accepts the State’s submissions and finds that those reserves extinguished native title.
Reserves the subject of public works
Reserve 46783 (Bore 4/75)
682		The claimants contend that reserve 46783, which was subject to the construction of a bore, did not extinguish non-exclusive native title rights.  They submit there is no evidence that a bore was actually built and the satellite photograph does not reveal a public work. 
683		Further, the claimants contend that the order which purported to create reserve 46783 is not properly executed, on the following basis: 
·	It is clear from the provisions of the Land Administration Act that an order is an instrument.  The intention of the Land Administration Act that an order is an instrument is confirmed by references in the Land Administration Act to “an order or other instrument”.
·	Under s 145(1)(a) Transfer of Land Act 1893, an instrument is deemed to be duly executed if each signature on the instrument is witnessed; or, where the State is the registered proprietor of land, if it is signed by the Minister and the Minister’s seal is affixed: s 145(2); or alternatively, under s 145(3), if the Registrar is satisfied that the genuineness of the signature is otherwise proved. The claimants submit that if s 145 is not complied with, there can be no presumption that the instrument is a valid instrument under the Transfer of Land Act 1893 or the Land Administration Act, as “instrument” shares the same meaning under both statutes. 
·	The claimants observe that reserve 46783 is purportedly reserved by the Minister “by order” under s 41 Land Administration Act.  They say that the order has not been duly executed, as it fails to comply with s 145 Transfer of Land Act 1893, as the signature in the attestation box is not witnessed; the Minister’s seal is not affixed; and there is no other basis for validity under s 145 Transfer of Land Act 1893.
684		In addition, the claimants submit that the management order over the purported reserve is not valid for the following reasons:
·	Under s 46 Land Administration Act, the Minister may place the management of a reserve with one or more persons by an order.
·	An order under the Land Administration Act is defined in s 3(1) as an order made by the Minister in the approved form.
·	The “approved form” is defined in s 3(1) as being the form for the time being approved under s 278 Land Administration Act.
·	The claimants assume that the management order in evidence is in the approved form as at the date of the order.  
·	None of the requirements at note 4 of the form have been met, as the signature on the document is not witnessed and there is no evidence that the person signing has delegated authority under s 9 Land Administration Act.  Accordingly, the document is not an order within the meaning of s 3(1) Land Administration Act.
·	Further, the order has not been executed in accordance with s 145 Transfer of Land Act 1893.
685		The State submits that a bore was constructed for or on behalf of the State, which was a public work for the purpose of s 253 NTA and extinguished native title.
686		It contends that the satellite photograph is not determinative and, in any event, water main works are by their nature largely subterranean and the photograph appears to show a white area where the bore head is located.
687		The State relies on the following evidence to demonstrate that the bore was constructed:
·	A letter from the Under Secretary for Works to the Under Secretary for Lands dated 23 June 1983 stating that “in order to protect the water mains in the Mt Magnet area it is intended to acquire the land shaded green”.  Plan PDW WA 53023 – 1 – 5 shows bore 4/75 in the top right hand corner within a green shaded square.
·	A letter from the Under Secretary for Works to the Under Secretary for Lands dated 25 August 1983 stating that “in order to protect the above works, it would be appreciated if a reserve would be created for all lands shaded and hachured green on Plan PDW WA 53023 – 1 – 3, 1 – 4 and 1 – 5 with vestment in the Minister for Water Resources”.
·	A memo from the Assistant Surveyor General to the Under Secretary for Lands dated 12 September 1983 recommending the creation of reserves over areas shaded green on the attached plans to protect water supply mains in Mount Magnet.  This recommendation was approved by the Under Secretary for Lands on 16 September 1983.
688		The State observes that the water bore was constructed prior to 1 January 1994 and to the extent its construction was invalid by reason of the Racial Discrimination Act 1975 (Cth) (RDA), it was validated by s 19 NTA and s 5 of the Titles (Validation) and the Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) as a past act.  
689		As the bore was constructed prior to 23 December 1996, the State submits it was a previous exclusive possession act as defined in s 23B(7) NTA, and as the construction or establishment of the bore was an act attributable to the State, s 23E NTA and s 12J TVA confirm extinguishment.
690		The State contends that the construction or establishment of the bore wholly extinguished native title over the entirety of the area of the reserve, as it was “adjacent land … the use of which … was necessary for, or incidental to, the construction, establishment or operation of the work” under s 251D NTA.  In particular, it says the area of reserve 46783 is the area shaded green on the relevant plan, which the Under Secretary for Works considered to be necessary to protect the water mains in the Mount Magnet area. 
691		The State contends that extinguishment is taken to have happened when the construction or establishment of the bore began and the subsequent creation of reserve 46783 had no further or greater effect on native title and was therefore valid.
692		The Court accepts the State’s submissions and finds Bore 4/75 extinguished native title.
Reserve 47060 (Kantie Murdana Trigonometrical station)
693		The claimants submit that non-exclusive native title rights have not been extinguished over reserve 47060, which is reserved for the purpose of “trigonometrical station”.
694		They observe that the issue whether a trigonometrical station is a “public work” and the geographical extent of any extinguishment is significant, given the large number of permanent geodetic survey marks across Western Australia.  They accept that the question whether a trigonometrical station is a “structure … that is a fixture” under s 253 NTA is ultimately a matter of fact and degree. 
695		In the claimants’ submission, a structure in its ordinary sense is something that is built or constructed: see Rubibi (No 7) at [128].  They say the word “structure” connotes something that is “built and is relatively complex, in the sense that it involves an assemblage of different elements”.  They contend that a work described as a “copper pipe set in concrete”, and nothing more, is not of sufficient complexity and does not contain a sufficient diversity of elements, to qualify as a structure.
696		In the event that the trigonometric station is found to be a public work, they submit that only the trigonometrical station would have extinguished native title and not the adjacent area, which is not necessary for or incidental to the construction of the work.  They say a trigonometrical station is a geodetic marker that marks a discrete point in space and a “copper pipe set in concrete” is small, sturdy and immovable.  The claimants contend there is no evidence the station’s operation is impeded by people accessing, or conducting other activities, in the area.
697		In relation to reserve 47060, they say they are not aware of evidence to show that anyone has rights in the reserve that would be inconsistent with native title rights and interests.
698		In any event, the claimants contend that the order purporting to create the reserve, dated 13 May 2003, is not a validly executed order, as the attestation has not been completed in accordance with s 145 Transfer of Land Act 1893 and the witness to the Minister’s delegate’s signature did not provide sufficient information.  They say there is no evidence that the person executing the Minister’s order had delegated authority under s 9 Land Administration Act.  For these reasons, the claimants submit that the document itself is not sufficient evidence to demonstrate that an order was made to reserve the land.
699		In the State’s submission, the trigonometrical station is a public work that extinguished native title.  It says the trigonometrical station appears to have been created prior to 31 October 1975 and no question of invalidity by breach of the RDA arises. To the extent it may have been constructed after 31 October 1975, it contends it was constructed prior to 1 January 1994 and was validated by s 19 NTA and s 5 TVA as a past act.
700		The State submits there is no doubt that the trigonometrical station is a “structure” and therefore a “public work” for the purpose of s 253 NTA.  It says the station is a construction of concrete and steel, permanently placed upon the landscape.
701		The State submits the construction of the trigonometrical station wholly extinguished native title over the entirety of the area of the reserve from the date the construction began.
702		It says the area of reserve 47060, being 4,141 square metres, is one square metre less than the area recommended by the Chief Geodetic Surveyor in 1978.  The State notes there is evidence that the Chief Geodetic Surveyor determined the necessary extent of the reserve as “of sufficient area and shape to protect the trig and its reference marks” and says there is no basis in the evidence to question that assessment.
703		The State contends that as native title was wholly extinguished by the construction and establishment of the trigonometrical station, the subsequent creation of reserve 47060 had no further or greater effect on native title and hence was valid.
704		The State’s submissions should be accepted, with the result the Court finds native title is extinguished on the reserve area.
Roads and other public works
Roads created pursuant to the Road Districts Act 1919 (WA)
705		The claimants contend that the plans for current roads 162, 163, 164 and 167 and historical road 60 contain partly surveyed roads that are ambiguously delineated. In so far as they are ambiguous, they submit these are not determinable within the meaning of s 225(c) and (d) NTA and do not provide a sound basis for extinguishment. 
706		Likewise, the claimants assert that evidence for current roads 101, 156 and 157 and historical road 47 contains insufficient detail to determine the extent, including the precise location or boundaries, of the roads, and these roads are not determinable and do not have the effect of extinguishing native title.  They say it is not clear from the documentation whether these are “paper roads”.
707		Further, the claimants contest the State’s submission that current roads 154, 155, 156 and 157 were created under the Road Districts Act 1919 (WA) in 1964. They say this is not a valid basis for the creation of a road, as the Road Districts Act was repealed in 1960 with the introduction of the Local Government Act 1960 (WA).  Unless further evidence is provided, the claimants contend the Court should assume the roads do not exist as public roads.
708		The State submits that current roads 162, 163, 164 and 167 and historical road 60 are within the townsites of Boogardie (current road 162), Lennonville (current road 163), Mount Magnet (current road 164), Paynesville (current road 167) and Warriedar (historical road 60).  It says these roads are very clearly delineated in the public plans attached to the relevant road document on the tenure DVD in evidence and that the road widths, lengths, orientation and relationship to adjoining lots are all included in the public plans.  It notes that the location and extent of the roads has been mapped into the tenure DVD.
709		The State submits the effect of the Road Districts Act was that any road shown on any public plan was dedicated as a “road” for the purpose of that Act and vested in the local authority of the district.  It asserts that even if these roads were ambiguously delineated, which is not admitted, it is not clear on what basis ambiguous delineation on a public plan should lead to a conclusion of non-extinguishment, given that the inclusion of a road on a public plan resulted in it being dedicated and vested.
710		The State also disputes the contention that there is any lack of detail in relation to the location and extent of current roads 101, 156 and 157 and historical road 47. It says the location, extent and relationship to other tenures is clear from the public plans on the tenure DVD.  The State contends that these roads were created pursuant to the Road Districts Act and a road was dedicated as a road by virtue of appearing on a public plan.  It says it does not know the origin or intended meaning of the term “paper roads”.
711		The State acknowledges that it was an error to have recorded that current roads 154, 155, 156 and 157 were created under the Road Districts Act in 1964.  It refers to the affidavit of Mr Jamie Strain filed 27 March 2013, and says these roads appear on cancelled public plans 186/80 (501 706), 41/300 (502 943) and 54/300 (502 996) which, although cancelled after 1964, were drawn and registered with the Department of Lands and Surveys prior to 1960 and, accordingly, show tenure which was in existence before 1960.  On this basis, the State contends that current roads 154, 155, 156 and 157 were established pursuant to the provisions of the Road Districts Act.
712		The Court accepts the State’s submissions and finds the roads in question are sufficiently clearly delineated and extinguished native title.
Roads created pursuant to the Local Government Act 1960 (WA) 
713		The claimants dispute the State’s submission that historical road 38 was created pursuant to s 294A Local Government Act in 1964, as s 294A was only added by way of the Local Government Act Amendment Act (No 2) 1975 (WA) in 1975.  They contend that without further evidence as to the basis for validity, the Court should not determine that this road has any extinguishing effect on native title.
714		The State acknowledges that it was an error to have recorded that historical road 38 was created in 1964 pursuant to s 294A Local Government Act.  It refers to the affidavit of Mr Strain and says that historical road 38 appears on deposited plans 170724, 170085 and 222842.  Deposited plan 222842 was drawn and registered with the Department of Lands and Surveys prior to 1960, in approximately 1895. On this basis, the State submits that historical road 38 was established pursuant to the provisions of the Road Districts Act.
715		The State’s submissions are accepted with the result the Court finds that these roads extinguished native title.
Current road 169
716		The claimants say that current road 169 is purportedly a common law road and, in these circumstances, evidence of its usage is a relevant consideration: Daniel (2003) at [641].  They contend the State has provided insufficient evidence of public usage to substantiate the assertion that it is a common law road. 
717		The claimants note that the cadastral map in evidence has a disclaimer that “some roads and tracks shown hereon may not necessarily imply a public right of way”.
718		The claimants observe that the satellite image shows a discernible vehicular track which runs near to, but only sometimes inside, the area of the purported road.  They say that reference to the road as a “current road” is a misnomer and not supported by evidence.  They submit that the maps in evidence indicate that the road provides access to a station homestead, which is consistent with a private rather than public purpose.  The claimants submit that without more, current road 169 cannot be said to be a common law road that extinguishes native title.
719		The State contends it is clear from the relevant documents on the tenure DVD that there is a current road in existence and it is visible on the relevant satellite photograph.  It contends that current road 169 forms a portion of the Wynyangoo Circuit Road, the other half of the loop being current road 156.  It says that current road 156 was dedicated under the Road Districts Act and the inference is that current road 169 is of the same type and status as current road 156.
720		The Court accepts the State’s submissions and finds current road 169 extinguished native title.
Features associated with roads
721		The claimants accept that water bores and gravel pits constructed for the purpose of building or maintaining a public road may be public works which extinguish native title.  They submit, however, that Mr Ryan’s affidavit does not provide a sufficient evidentiary basis for the Court to find that the identified bores and gravel pits were constructed for that purpose. 
722		The claimants acknowledge there is limited evidence to suggest that the identified historic bores and gravel pits do or did exist, but say there is no evidence, other than an unsubstantiated assertion, to indicate that they were constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.  They say there are many private entities that might take gravel and water from the vicinity of public roads for private purposes.
723		The claimants therefore contend that, as a matter of evidence, the State has failed to establish that the identified bores and gravel pits are public works for the purpose of s 253 NTA that extinguish native title.
724		In the State’s submission, the evidence before the Court is that the water bores and gravel pits referred to in Mr Ryan’s affidavit were, in fact, constructed by or on behalf of the Crown.  Mr Ryan stated that 19 water bores and 169 gravel pits did and do exist in the claim area and were constructed by Main Roads WA (MRWA) for or on behalf of the Commissioner of Main Roads pursuant to the Commissioner’s powers under the Main Roads Act 1930 (WA).  The State asserts that coordinates for all water bores and gravel pits are provided in Mr Ryan’s affidavit.
725		Mr Ryan also gave evidence that the water bores were established as pre-construction features for the provision of water for the construction and maintenance of MRWA roads.  He said that water bores typically occupy about 1 square metre of ground, although about 1 hectare, as well as access to the nearest road or track, is required to access and pump water from water bores.  The State submits the water bores are public works under s 253 NTA, namely “a well, or bore, for obtaining water”.  
726		In respect of the gravel pits, Mr Ryan stated that these are areas where MRWA extracts gravel for road construction and maintenance.  He said these are pre-construction features which provide the necessary materials for construction and vary in size between 4 hectares and 25 hectares.  The State submits the gravel pits are public works under s 253 NTA, namely “major earthworks”.
727		The State contends that if the claimants wished to submit that these water bores or gravel pits were not in fact constructed or were constructed for a private purpose, they should have led evidence to that effect or sought to cross-examine Mr Ryan.  It submits that the only evidence before the Court is that the water bores and gravel pits were constructed for or on behalf of the Crown.
728		While the claimants have challenged the sufficiency of evidence that historical bores and gravel pits do or did exist and were constructed by or on behalf of the Crown, I am satisfied on the basis of Mr Ryan’s evidence that this was so.  I accept the State’s submission that the claimants have led no evidence that these features were constructed for a private purpose and did not seek to cross-examine Mr Ryan on his evidence.
729		I therefore find that as all the water bores and gravel pits were constructed or established before 23 December 1996 (as I understand Mr Ryan to state in his affidavit), they were previous exclusive possession acts that were attributable to the State, for which there is statutory confirmation of extinguishment: s 23E NTA; s 12J TVA.  The construction or establishment of each water bore and gravel pit extinguished native title over an area required for their access and use.
730		I note that the claimants have raised no issue in this case as to the area considered necessary for, or incidental to, the construction, establishment or operation of the water bores.  Further, the claimants have raised no issue as to whether the gravel pits can be characterised as “major earthworks” and therefore a public work under s 253 NTA.  There is therefore no need to consider those issues in this case.
Other public works
731		The claimants object to the inclusion of a generic public works clause in any native title determination.  They say the State bears the onus of establishing, with particularity, any acts which are said to be public works extinguishing native title.  They contend that a general exclusion for public works constructed or established should be avoided if a more precise set of findings can be made.  See Risk at [869].
732		The State submits that it has attempted to lead evidence of all public works of which it is aware.  However, given the broad nature of the acts which constitute public works and the fact that public works may be constructed by entities other than the State, it is likely that not all relevant public works have been captured in the tenure affidavits.
733		As a result, the State submits the Court should include a generic public works clause in any native title determination in the following terms:
Native title does not exist in relation to the land and waters the subject of any public works as that expression is defined in the NTA (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the NTA) and to which section 12J of the TVA or section 23C(2) of the NTA applies.

734		The State accepts it would have been ideal to identify every public work in the claim area, but it is likely that some public works have not been identified.  It contends the proposed clause is routinely included in native title determinations in Western Australia.
735		The State submits that public works constructed prior to 23 December 1996 are previous exclusive possession acts which wholly extinguished native title.  It says this legal consequence is not altered merely because a public work was not able to be identified in the tenure affidavits and if a public work is identified in the future, it cannot be argued that it did not extinguish native title.  The State submits there is no prejudice to the claimants from the inclusion of this clause, but without it, any determination of native title may be inaccurate and will require revision if a public work is later discovered.  It contends that the decision in Risk is not to the contrary and Mansfield J noted that “there is much to commend” the course that the State has proposed.
736		In the circumstances of this case, where the Court has found above that the claimants have not proved that native title exists, the Court need not consider these submissions.  However, if it had been necessary to do so, the Court would not have accepted the State’s submissions as to do so would involve speculation.
Pastoral improvements
737		For the reasons outlined earlier, I reject the State’s submission that the establishment of pastoral improvements in the claim area extinguished native title rights and interests in relation to the land or waters on which each improvement was constructed.
738		Consistent with the reasoning in Brown and Banjima at [1492], I find that the right to make improvements pursuant to pastoral leases in the claim area did not extinguish native title, but the use of rights conveyed to the lessee prevailed over native title rights for the duration and extent of any inconsistency. 
Mining tenements
Mineral leases
739		Mineral leases were granted pursuant to s 12 of the Mineral Lands Act 1892 (WA) and s 48 Mining Act 1904.  As they were granted prior to 31 October 1975, no issue of breach of the RDA arises. 
740		In light of the similar legislative provisions involved, the claimants submit that the effect on native title of mineral leases granted under the Mineral Lands Act is the same as mineral leases granted under the Mining Act 1904, and further, that a mineral lease granted under the Mining Act 1904 is indistinguishable from a mineral lease granted under the Mining Act 1978 (WA).
741		The claimants acknowledge that the plurality in Ward found that a mining lease granted under the Mining Act 1978 extinguished any native title right to control access, and the Court stated that a mining lease may have extinguished other native title rights and interests.
742		They submit, however, that mineral leases granted under the Mining Act 1904 are analogous to the Mount Goldsworthy leases considered in Brown FC, and the grant of the mineral leases did not extinguish any native title rights and interests other than an unqualified right to control access. 
743		The claimants observe that Nicholson J in Daniel (2003) found that mineral leases granted under the Mining Act 1904 extinguished some non-exclusive native title rights, but say the Court’s approach in Brown FC is preferable.
744		The State concedes that the mineral leases which the Full Court considered in Brown FC are similar to ordinary mineral leases granted under the Mining Act 1904, and given the outcome in Brown FC, the Court is presently bound to hold that mineral leases granted in the claim area have only extinguished the native title right to control access, and not any other native title rights.  
745		The State made a number of submissions to the effect that rights conferred by the mineral leases were inconsistent with native title rights, and there was no clear ratio decidendi that could be drawn from the Full Court’s reasons for judgment in Brown FC.  It sought to preserve its position in the event the High Court overturned or modified the decision in Brown FC, and indicated that it might wish to make further or different submissions following the High Court’s decision. 
746		In light of the High Court’s decision in Brown, which confirmed the Full Court’s approach in Brown FC, the State’s submissions are not supported by recent authority and must be rejected.
747		Marshall J also considered the position of mineral leases granted under the Mining Act 1904 in Ngadju at [7] and found that there was no relevant difference between leases considered in Brown and leases granted pursuant to the Mining Act 1904 prior to 1968.  
748		I therefore accept that the mineral leases granted under the Mining Act 1904 and Mineral Lands Act only extinguished the native title right to control access, and not any other native title rights.  Consistent with the reasoning in Banjima at [1629], I reject the State’s submission that the rights granted under the mineral leases are inconsistent with other native title rights, or that the exercise of rights pursuant to the leases had the effect of extinguishing native title.  While activities carried out pursuant to a mining lease may mean that the rights of the lease holder are inconsistent with subsisting native title rights and interests, they prevail over but do not extinguish native title rights. 
749		There is no need to receive further submissions from the parties on the extinguishing effect of these mineral leases.
750		In relation to the claimants’ submission that the grant of a mineral lease only extinguished an unqualified right to control access, for the reasons outlined below regarding pastoral leases, current authority does not support the existence of a qualified native title right to control access of this type.
Gold mining leases
751		Gold mining leases in the claim area were granted under s 10(1) Goldfields Act 1886 (WA), s 32 Goldfields Act 1895 (WA) and s 42 Mining Act 1904, which each contained similar terms. The parties accept that these gold mining leases are valid, no issue of breach of the RDA arises and the extinguishing effect of the gold mining leases is to be determined by the common law.
752		The claimants submit that the grant of a gold mining lease and mineral lease under the Mining Act 1904 have the same effect on native title: Daniel (2003) at [787]-[789].  They contend that the grant of gold mining leases did not extinguish any native title rights other than the unqualified right to control access. 
753		The State also accepts that gold mining leases are not relevantly different from mineral leases granted pursuant to the Mining Act 1904 and repeats its submissions regarding their extinguishing effect.  It says the gold mining leases had the same extinguishing effect as found by Nicholson J in Daniel (2003) at [741], [768].
754		In Ngadju at [81], Marshall J accepted that gold mining leases did not extinguish native title rights, other than the right to control access.  His Honour affirmed the approach in Banjima at [1575], where I rejected the State’s submission that any particular usufructuary or ceremonial rights were extinguished and found that “The rights granted by the mineral leases prevailed over, but did not extinguish, such rights”.
755		I would apply the same approach in this case and find that the gold mining leases did not extinguish any native title rights, other than the right to control access.  
756		For the reasons outlined below in relation to pastoral leases, I do not accept the existence of a qualified native title right to control access.
Residential areas and market gardens
757		The parties accept that the residential area and market garden areas in the claim area were registered as authorised holdings under the Mining Act 1904 prior to 31 October 1975 and no issue as to invalidity under the RDA arises.
758		The claimants submit that the grant of a miner’s right under the Mining Act 1904, which, among other things, gave the holder a right to register residential areas and market garden areas as “authorised holdings”, did not have a greater effect on native title than the grant of a gold mining or mineral lease.  They contend that the effect of registration of a residential area or market garden as an authorised holding was that it did not extinguish any native title rights and interests except the unqualified right to control access.
759		In the State’s submission, Nicholson J in Daniel (2003) correctly found that the registration of a residential area granted under the Mining Act 1904 conferred a right of exclusive possession and was inconsistent with any native title.  His Honour made the same finding of exclusive possession in respect of market garden areas, but erred, according to the State, in not determining the same extinguishing effect.
760		The State says the registration of a residential area or market garden area conferred rights to take possession of and continually occupy a small area as a private residence or securely fenced market garden and these rights are inconsistent, in every sense, with native title.
761		In Banjima at [1550]-[1551], I found that the registration of each market garden area extinguished any native title right to control access, but did not necessarily extinguish any other subsisting native title rights, and in the event of any inconsistency between the market gardeners’ rights and the exercise of native title rights, the rights of the market gardener would prevail.  I reached the same finding in respect of residential areas at [1545]. 
762		Consistent with the reasoning in Banjima, which was endorsed by Marshall J in Ngadju at [87], I find that the registration of the market garden areas and residential area in the claim area did not extinguish any native title rights other than a right to control access.  
763		For the reasons explained below in relation to pastoral leases, I do not accept the claimants’ submission that a qualified native title right to control access survived.
Miners’ homestead leases
764		The claimants accept the validity of the miners’ homestead leases in the claim area, that the leases were granted before 31 October 1975 and that none of the leases were still in force on 23 December 1996.
765		In the claimants’ submission, Nicholson J erred in Daniel (2003) by not finding that the grant of a miner’s homestead lease does not extinguish any native title rights and interests apart from the unqualified right to control access.  They say there is no inevitable or necessary inconsistency between the rights conferred by miners’ homestead leases and native title rights and interests, other than an unqualified right to control access.  
766		The claimants contend that the grant of miners’ homestead leases was not akin to a freehold grant and shared many of the features of pastoral leases considered by the High Court in Ward at [308].  They submit the miner’s right to enter upon and occupy the land was qualified, the lease was precarious and other limitations applied to the lease.  They say it is not clear from the broad purposes of a miner’s homestead lease that its grant conferred a right of exclusive possession, and given the qualifications in the rights conferred on the holder, the lease did not confer a right of exclusive possession.
767		If it is found that miners’ homestead leases did confer a right to exclusive possession, the claimants contend that the “temporal” aspect of the grant meant that the rights would simply prevail over native title rights for the duration and extent of the inconsistency.  
768		In the State’s submission, Nicholson J erred in not finding that a miner’s homestead lease extinguished native title.  It contends that these leases are akin to a freehold grant and conferred a right of exclusive possession, as they were granted for the purpose of providing the holder with an area to possess and occupy as their home and place of residence.  
769		The State submits that miners’ homestead leases are not relevantly similar to pastoral leases and the existence of reservations or a power held by the Minister to revoke a lease do not determine the nature of the rights conferred.  Further, it disputes the claimants’ contention that the grant of inconsistent rights does not extinguish native title rights if the rights are impermanent and it emphasises the permanent nature of extinguishment under the inconsistency of incidents test. 
770		I considered the position of miners’ homestead leases issued under the Mining Act 1904 in Banjima at [1576]-[1586].  In that decision, I found that homestead leases did not necessarily extinguish all native title rights and interests and concluded at [1585] that to the extent the rights conferred by a homestead lease in their exercise conflicted with any non-exclusive native title rights, the lessee’s rights prevailed over but did not extinguish these native title rights.
771		In Ngadju at [88]-[89], Marshall J considered that the reasoning in Banjima is “more recent, considered and comprehensive” than the decision in Daniel (2003), and accepted that the miners’ homestead leases did not extinguish native title rights and interests save for the right to control access.
772		Applying Banjima and Ngadju, I accept that the miners’ homestead leases granted in the claim area did not extinguish native title rights and interests in the claim area, other than the right to control access.
773		For the reasons explained below in relation to pastoral leases, I do not accept that a qualified right to control access survived.
Rights in minerals and petroleum
774		The claimants do not claim any right, title or interest in any minerals, petroleum or gas wholly owned by the Crown.  They submit, however, that this ownership is not inconsistent with a native title right to take ochre for ceremonial purposes, or a right to control access or use of the land for any purpose, including the extraction of minerals or petroleum, except to the extent that a valid right of access for that purpose has been granted pursuant to statute which prevails over native title.
775		The State contends that whether by virtue of the vesting provisions in s 3 Western Australia Constitution Act 1890 (UK), or s 117 Mining Act 1904 and s 9 Petroleum Act 1936 (WA), full beneficial ownership of all minerals and petroleum was vested in the Crown.  It says that any native title rights in minerals or petroleum were accordingly extinguished, as found in Ward at [383].  See also Ward FC at [541]; Daniel (2003) at [728]-[730]; Neowarra at [599]‑[600].
776		The State agrees that the Crown’s ownership of all minerals, petroleum and gas is not inconsistent with a native title right to take ochre for ceremonial purposes.  It submits, however, that this does not include ochre used in the manufacture of porcelain, fine pottery or pigments.  Pursuant to a proclamation made under s 115 Mining Act 1904 and published in the Gazette on 12 May 1920, it says the State has full beneficial ownership of ochres for such uses.
777		In Banjima at [1757], I accepted submissions made by the respondents to the effect that the relevant mining legislation extinguished any native title rights that might otherwise have existed in relation to minerals, as the existing ownership of all natural resources owned by the Crown has been confirmed.  In that decision, I concluded at [1757] that the authorities in Ward at [383];  Ward FC at [541]; Daniel (2003) at [728]-[730]; and Neowarra at [599]-[600] “prevent any re-shaping of an argument that native title rights may relate to minerals and petroleum – save in respect of the taking of ochre for ceremonial purposes”.
778		I would apply the same approach in this case and find that any native title rights in minerals or petroleum have been extinguished, other than a native title right to take ochre for ceremonial purposes, if such a native title right is found to exist.
WHETHER CERTAIN ACTS PARTIALLY EXTINGUISHED NATIVE TITLE
Pastoral leases
779		The claimants admit the validity of current pastoral leases in the claim area and that these are previous non-exclusive possession acts to which s 12M TVA applies.  They submit, however, that the pastoral leases do not extinguish any native title rights and interests other than the unqualified right to control access.  
780		The claimants say a limited native title right to control access survives the grant of pastoral leases, on the basis that native title rights:
·	are not absolute rights of control, rather qualified rights of control;
·	have existed as qualified rights of control since before the assertion of British sovereignty; and
·	are and always have been exercisable subject to coexisting rights of others arising from the lex loci applicable from time to time, both prior to and following the assertion of British sovereignty.
781		The claimants’ primary case is that unqualified rights to control access existed and exist in the claim area, or in the alternative, if there is no longer such an unqualified right, that a limited or qualified right to exclude exists under the traditional laws and customs of the Badimia people as they have adapted since sovereignty.  They submit that such adapted laws and customs are rooted in traditional law and custom as they existed at sovereignty and these rights can still be recognised as native title rights.
782		The claimants also submit that the claimed native title rights to live within the claim area and erect shelters upon or within the claim area are not inconsistent with current pastoral leaseholders’ rights, relying on Alyawarr FC at [131].
783		In the State’s submission, in the absence of a right of exclusive possession, no “qualified” right to control access survives.  It says the claimants’ approach is contrary to Ward and has been rejected by the Full Court in Alyawarr FC at [141]-[148], which was cited with approval in Gumana v Northern Territory of Australia [2007] FCAFC 23; (2007) 158 FCR 349 (Gumana FC) at [172].
784		The State contends that to the extent that Alyawarr FC and Gumana FC raised the question whether, under traditional law and custom, the various aspects of exclusive possession may have been separate and severable rights at sovereignty, the claimants have not led any evidence to support that proposition.
785		The State says the qualification of a right to exclude can only have come into existence since the British Crown’s assertion of sovereignty and, in any event, the abandonment or extinguishment of a native title right as a result of the effect of British sovereignty is not the same as its “adaptation”.  It contends that it could not have been part of pre-sovereignty law and custom that an exclusive possessor of land would adopt aspects of the land law of a foreign sovereign into their traditional land holding system.
786		Further, it contends it would be problematic if native title holders had the right or capacity in conjunction with other authorities to determine whether a person is or is not complying with the law in connection with their entry to land.
787		I considered similar submissions in relation to pastoral leases in Banjima at [1792]-[1874].  At [1872], I held that current authorities, including Ward, Yarmirr v Northern Territory [2001] HCA 56; (2001) 208 CLR 1 and Alyawarr FC all militate against the conclusion that there can be a qualified native title right to control access upon the grant of a pastoral lease.  I also found that the evidence did not support the existence of a qualified right to control access of this type in any event.
788		On the basis of Banjima, I find that current authority does not support the existence of a qualified native title right to control access that survived the grant of pastoral leases or other similar tenure.  Further, I accept the State’s submission that there is insufficient evidence in this case to support the existence of a qualified right to control access in any event.
789		Instead, consistent with the High Court’s reasoning in Ward at [170]-[187] and Banjima at [1874], I would hold that none of the rights granted by the pastoral leases was necessarily inconsistent with any non-exclusive native title rights, including the claimants’ claimed native title rights to live within the claim area and erect shelters upon or within the claim area.  To the extent the exercise of any pastoral lease rights might be inconsistent with native title rights, the lessee’s rights prevail over, but do not extinguish the subsisting native title rights. 
Unvested reserves
790		The claimants submit that a number of unvested reserves in the claim area were not validly created under the Land Regulations 1882.  As the State observes, this may be taken as a reference to the applicable legislation for each identified reserve, as no reserves were in fact created under the Land Regulations 1882.
Reserves created for the purpose of “townsite”
791		The claimants contend that reserves 03995, 04143, 04817 and 07094 were not validly reserved, because the purposes for which they were granted were not sufficiently specific to come within the scope of reg 29 Land Regulations 1882: Sebastian at [243]-[252].  
792		The State submits that reserve 03995 was set aside in Mount Magnet for the purpose of “extension of townsite” by notice published in the Gazette on 14 May 1897; reserve 04143 was set aside in Boogardie for the purpose of “townsite” by notice published in the Gazette on 9 July 1897; and reserve 04817 was set aside in Mount Magnet for the purpose of “extension of townsite” by notice published in the Gazette on 10 December 1897.
793		It says these three reserves were set aside under reg 32 Land Regulations 1887, which relevantly stated:
THE Governor is hereby authorised, subject to such conditions and limitations as he may think fit, to except from sale, and either to reserve to Her Majesty, her heirs and successors, or to dispose of in such other manner as for the public interest may seem best, such lands, whether surveyed or not, as may be required for the following objects and purposes:
…
(j) Places necessary for the embellishment of towns, or for the health, recreation, or amusement of the inhabitants.
…
(n) Any other purpose of public health, safety, utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony.

794		The State contends the claimants have not advanced any argument as to why the purposes of the three reserves are outside these provisions.  It submits that reserves for the purpose of “townsite” or “extension of townsite” fall within the purposes in regs 32(j) and (n) Land Regulations 1887, as the creation and expansion of townsites is clearly designed to facilitate the “settlement of the Colony”.
795		In relation to reserve 07094, the State notes this was set aside for the purpose of “townsite (Paynesville)” by notice published in the Gazette on 9 March 1900, and although no longer current, this reserve was located over the town of Paynesville. 
796		The State says reserve 07094 was set aside pursuant to s 39 Land Act 1898, which relevantly provided:
THE Governor is hereby authorised, subject to such conditions and limitations as he may think fit, to except from sale, and either to reserve to Her Majesty, her heirs and successors, or to dispose of in such other manner as for the public interest may seem best, any lands vested in the Crown that may be required for the following objects and purposes:
…
(8) For sites for cities, towns, villages, residence and business areas. …
(10)For places necessary for the embellishment of towns, or for the health, recreation, or amusement of the inhabitants.
…
(15) For any other purpose of public health, safety, utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony.

797		Similarly, the State submits the claimants have not advanced any reason why the purpose of reserve 07094 is invalid and says a reserve for the purpose of “townsite (Paynesville)” is within the purposes contained in s 39(8), (10) and (15) Land Act 1898.  It contends that a reserve for a townsite was specifically contemplated by s 39(8) Land Act 1898 and, in any event, is clearly designed to facilitate the “settlement of the Colony”.
798		In respect of reserves 03995, 04143 and 04817, I am satisfied that the purposes for which they were granted are sufficiently specific to fall within the scope of regs 32(j) and (n) Land Regulations 1887.  I accept that the creation or expansion of townsites can be characterised as facilitating the “settlement of the Colony”.  The claimants have not advanced any further argument why these purposes are beyond the scope of reg 32 Land Regulations 1887.
799		On a similar basis, reserve 07094 was validly set aside for the purposes identified in s 39(8), (10) and (15) Land Act 1898, particularly as the creation of a reserve for the purpose of “cities, towns, villages, residence and business areas” is specifically identified in s 39(8) Land Regulations 1887.  I accept the State’s submission that the claimants have not advanced any reason why the creation of reserve 07094 for the purpose of “townsite (Paynesville)” is not sufficiently specific to fall within the scope of s 39 Land Act 1898.
Reserves created for the purpose of “exempted from sale”
800		The claimants submit that reserves 04463, 06968, 07099, 10097, 11184 and 11494 were invalidly reserved because they were created for the purpose of “exempted from sale” which is outside the scope of reg 29 Land Regulations 1882. 
801		The State observes that reserve 04463 was set aside under reg 32 Land Regulations 1887, while the other reserves were set aside under s 39 Land Act 1898 for the purpose of “exempted from sale”. 
802		It contends that both the Land Regulations 1887 and Land Act 1898 specifically contemplated “exempted from sale” reserves, providing that the Governor may “subject to such conditions and limitations as he may think fit, to except from sale and either to reserve to Her Majesty, her heirs and successors, or to dispose of in such other manner as for the public interest may seem best” (emphasis added).
803		The State says land was typically reserved as “exempted from sale” where it was contemplated that the land was, or might in the future, be required for any of the other purposes in reg 32 Land Regulations 1887 or s 39 Land Act 1898, particularly for the improvement and settlement of a town (and thus the Colony more generally).
804		In Banjima at [906], I accepted that Sebastian applies to the proper construction and application of reg 32 Land Regulations 1887, which is in relevantly similar terms to s 39 Land Act 1898.  I observed that to validly create a reserve under reg 32 Land Regulations 1887 (to which may be added s 39 Land Act 1898), one of the particular objects or purposes must be specified.  The failure to nominate one of the particular purposes in the relevant legislation in Sebastian led to the finding that the reserve in question was not validly created:  see Sebastian at [249]-[252]. 
805		The creation of a reserve for the purpose of “exempted from sale”, without the specification of a particular purpose under reg 32 Land Regulations 1887 or s 39 Land Act 1898 falls short of this requirement.  These provisions authorised the Governor to except land from sale and either reserve or dispose of lands vested in the Crown “that may be required for the following objects and purposes”.  The purpose of “exempted from sale”, without more, does not fall within the scope of any of the enumerated purposes listed in reg 32 Land Regulations 1887 or s 39 Land Act 1898.  It is not sufficient that land was typically reserved as “exempted from sale” where it was, or might in the future, be required for any of these other purposes, such as the improvement or settlement of a town.  Instead, these purposes were required to be specified for a valid grant.
806		On this basis, I would accept the claimants’ submission that these reserves were not validly created.
Reserves created for the purpose of “public utility”
807		The claimants say that the following reserves are invalid, because they were created for the purpose of “public utility”, which lacks the specificity necessary to bring it within the scope of reg 29 Land Regulations 1882:
02743, 02744, 02746, 02747, 02748, 02749, 02750, 02752, 02753, 02754, 02756, 02924, 02925, 02926, 02927, 04113, 04114, 04115, 04116, 04462, 04464, 04465, 04969, 04970, 06111, 06112, 06113, 06115 and 17327.
808		The State observes that reserve 17327 was set aside under s 39 Land Act 1898 and the other reserves were set aside under reg 32 Land Regulations 1887, for the purpose of “public utility”.
809		On the basis of my earlier reasoning, I accept that “public utility” was one of the precise objects specified in reg 32 Land Regulations 1887 and s 39 Land Act 1898.  I accept the State’s submission that the reserves set aside for the purpose of “public utility” were sufficiently specific to fall within the scope of these provisions and were validly created. 
Reserves with insufficient evidence of creation
810		The claimants submit that reserves 15823, 15824 and 15825 were not validly created, as there is no evidence of their creation.  In particular, they observe:
(1)	The documents entitled “Reserve Enquiry Detail” for each of the reserves contain a disclaimer which states: “This product is for information purposes only. A search of the original documentation is required for all legal purposes”. 
(2)	For each of the reserves there is a copy of a plan which shows the purported boundaries of the reserves, but it cannot be ascertained from the plan whether the reserves were actually created or it was intended that they be created.
(3)	The paucity of information is such that the presumption of regularity cannot apply, as there is no evidence of any act being done.
811		The State acknowledges it has been unable to locate the original documentation for these reserves, which were created in 1915, and says it appears these documents have been lost or destroyed in the intervening years. 
812		Nonetheless, the State does not accept there is no evidence of the creation of the reserves.  It says the entry of the reserves on the relevant cancelled public plans and in the electronic reserve enquiry system is, on its face, evidence that they were created and remain current, and this evidence is sufficient to sustain the presumption of regularity.
813		In this case, the State has not provided the original documentation for the unvested reserves in question and there is a paucity of evidence regarding their creation, other than entry on the relevant cancelled public plans and the electronic reserve enquiry system.  I am not satisfied that the State has discharged its onus of proof to show that reserves 15823, 15824 and 15825 were validly created and had any extinguishing effect.
Unvested reserves with additional extinguishment
Reserve 02944
814		According to the State, reserve 02944 was set aside on 16 August 1895 pursuant to reg 32 Land Regulations 1887 for the purpose of “cemetery”.  It says on 30 March 1906, trustees were appointed under the Cemeteries Act 1897 (WA), and on 18 October 1907, the Mount Magnet Public Cemetery Bylaws were published in the Gazette for the management of the reserve.  The State observes that reserve 02944 continues to be used as a cemetery.
815		The claimants do not agree that the publishing of the bylaws in the Gazette partially extinguished native title rights and interests.  They say the issues in this case are similar to those considered in Sebastian at [254]-[269].  In the claimants’ submission, as in this case, trustees were appointed and their appointment was recorded in the Gazette, although there was no evidence that the land was vested in the trustees.  The claimants note that the Full Court in Sebastian held that the failure to vest the land in the trustees had the result that the trustees were unable to exercise their powers under the Cemeteries Act.
816		By failing to vest the land in the trustees, the claimants contend the Governor did not validly give the trustees any powers under the Cemeteries Act, including the power under s 14 to make bylaws.  They say that despite being published in the Gazette, the bylaws were beyond the power of the trustees and were therefore invalid. 
817		In the claimants’ submission, consistent with the reasoning in Sebastian, the creation of the reserve extinguished the native title right to determine the use of the reserve and control access to it, but not any other native title rights.
818		The State concedes there is no direct evidence of the vesting of reserve 02944 in the trustees pursuant to the Cemeteries Act and that the reasoning in Sebastian at [254]-[269] is applicable.  
819		Yet it submits that Nicholson J’s approach in Daniel (2003) should be preferred.  His Honour held at [693] that reserves for the purpose of a “cemetery” extinguished all native title rights and interests other than the right of access.  The State contends that the decision in Sebastian did not call into doubt the decision in Daniel (2003) and Nicholson J’s approach is plainly correct.  The State therefore asserts that the reservation and use of land as a cemetery is inconsistent with the existence of native title rights and interests other than a right of access.
820		Further, the State says the creation of the bylaws extinguished the following additional native title rights and interests:
·	a right to possess, occupy, use and enjoy the claim area to the exclusion of all others, and any other right of an exclusive nature;
·	a right to otherwise possess, occupy, use and enjoy the claim area;
·	a right to trade in resources of the claim area;
·	a right to take resources or manufacture items from resources taken from the area;
·	a right to conduct and participate in ceremonies and meetings; and
·	a right to camp, live within the claim area or erect shelters.
821		The reasoning of the Full Court in Sebastian is clearly applicable here. At [266], the Full Court found that the rights and powers granted to trustees under the Cemeteries Act depend on the land having been vested in them. 
822		There was no need for Nicholson J to consider this question in Daniel (2003), as no issue as to the validity of the vesting of land in the trustees arose.  The Full Court’s decision on this issue is binding.
823		In this case, the State has conceded that there is no evidence that reserve 02944 was vested in the trustees under s 10 Cemeteries Act.  It has not established that the cemetery land has been validly vested in the trustees, even though trustees have been appointed.  I accept the claimants’ submission that the failure to vest the land in the trustees had the result that the Governor failed to give the trustees any powers under the Cemeteries Act and the bylaws were, accordingly, beyond power.  
824		Consistent with the Full Court’s reasoning in Sebastian at [262], [266], I find that the mere passing of the legislation and the appointment of trustees did not extinguish native title.  In my view, the creation of the cemetery reserve extinguished the native title right to determine how land could be used and the right to control access to the land, but did not extinguish any other native title rights and interests.
Reserves 06270, 11342, 12876
825		The State submits that reserves 06270, 11342 and 12876 were set aside for the purpose of “common” pursuant to s 39 Land Act 1898.  It says that on 16 May 1919, bylaws were published in the Gazette for the management of each reserve, including a restriction on the felling or removal of “green or growing timber”.
826		The claimants do not accept that the gazettal of these bylaws extinguished native title rights to take and trade resources from the area.  They say native title rights and interests should only be affected to the extent of any inconsistency, and rights to take and trade resources from the area should persist, except in relation to “green or growing timber”.
827		The State accepts this submission.
828		Further, the claimants note that the area of reserve 11342 was increased in 2008, yet there is no evidence of compliance with the future act processes under the NTA or Land Administration Act.  They submit the increase in area of the reserve was not validly done and does not extinguish native title. 
829		The State notes that reserve 11342 was amended in 2008 to include lots 300 and 301 on deposited plan 44605, lot 304 on deposited plan 44606 and lot 258 on deposited plan 39343.  It submits, however, that the area of these lots previously formed part of reserve 11342 in 1926, when the area of the reserve was at its largest. On this basis, it says that any native title rights which may have been affected by the 2008 expansion were already extinguished by the historical area of reserve 11342, and the expansion of the reserve was not a future act.
830		Given that the area of the expanded reserve 11342 in 2008 was previously covered by the historical reserve 11342, I accept the State’s submission that any native title rights which may have been affected by the 2008 expansion were previously extinguished at or before 1926 by the historical area of the reserve.
Nature reserves
831		The State submits that reserves 26259 and 36936 were vested under s 33 Land Act 1933 and relies on Gazette notices which record their vesting.  It contends that as these reserves were vested under s 33 Land Act 1933, native title was wholly extinguished over the area of the reserves.
832		Further, the State submits that the reserves were reserved for the purposes of “conservation of flora or fauna” and as a result of ss 22 and 23 of the Wildlife Conservation Act 1950 (WA), no person, Aboriginal or otherwise, could take fauna after 1950 in such reserves.  It says this was the effect of the reservation, coupled with the relevant legislative provisions, and no subsequent “vesting” of the reserves was required under the Wildlife Conservation Act.  
833		The State observes that the Full Court in Ward FC at [504] held that the terms of s 23 Wildlife Conservation Act “so clearly circumscribe the rights of Aboriginal people that native title rights to take fauna in a nature reserve or wildlife sanctuary are clearly and plainly extinguished”.  The State notes that the High Court refused special leave to appeal that decision, and the Full Court’s decision was followed by Nicholson J in Daniel (2003) at [880] and Sundberg J in Neowarra at [645].
834		Accordingly, the State submits that to the extent the native title right to take fauna in reserves 26259 and 36936 was not already extinguished, for example by a vesting of those reserves under s 33 Land Act 1933, it was extinguished by the operation of the Wildlife Conservation Act.  
835		The claimants say they accept the State’s submission if the reserves are vested reserves under the Wildlife Conservation Act.
836		It is not clear whether the claimants seek to cast doubt on whether these reserves were validly vested under the Wildlife Conservation Act or s 33 Land Act 1933.  In any event, I would accept the State’s submission that these reserves were not vested under the Wildlife Conservation Act; instead, under s 33 Land Act 1933.
837		Further, consistent with the decision in Ward FC, I hold that the reservation of these reserves for the purposes of “conservation of flora or fauna” meant that under the Wildlife Conservation Act, no person could take flora or fauna from within the reserves and any native title rights to take flora or fauna were extinguished.
State forests
838		The claimants accept the validity of the State forests in the claim area, but submit that a declaration of State forests did not extinguish any native title rights other than an unqualified right to control access.  The claimants note they have not claimed a right to light fires.  
839		The State submits that although the High Court did not consider the dedication of land as a State forest in Ward, this is analogous to the creation of a reserve under the Land Act 1898 and the Land Act 1933.  It contends the declaration of a State forest involves an exercise of the executive government’s power to determine how land is to be used, and this is inconsistent with, and extinguished, any native title right to control access to the land or make binding decisions as to the uses to which it is put. 
840		For the reasons set out above in relation to pastoral leases, I do not accept that a qualified right to control access survived the creation of State forests.  Instead, I accept that the effect of the declaration of State forests was to extinguish native title rights to control access and make binding decisions as to the uses to which the land is put, but did not otherwise extinguish native title rights and interests. 
Mining and petroleum tenements
Mineral claims
841		The claimants admit the validity of mineral claims in the claim area, which were governed by the Mining Regulations 1925 (WA) and Mining Act 1904 and registered before 31 October 1975.  They note that the right to take possession, hold and mine mineral claims flowed from the issue of a miner’s right. 
842		The claimants repeat their submission that the rights conferred by the issue of a miner’s right were more limited than the rights conferred by a gold mining or mineral lease.  In their submission, upon the registration of a mineral claim, there was no inevitable or necessary inconsistency with native title rights, apart from the unqualified right to control access. 
843		The claimants submit that Nicholson J erred in Daniel (2003) at [783]-[786] in finding that the registration of a mineral claim had the same effect on native title as the grant of a gold mining lease under the Goldfields Act 1886 or Goldfields Act 1895 and extinguished non-exclusive rights to access the land in terms of remaining, ritual and ceremony, camping in terms of living on the land, and cooking and lighting fires. 
844		The State contends the Court should follow Nicholson J’s approach in Daniel (2003) as to the effect of the registration of a mineral claim on native title.  It says the comparison between the holder of a miner’s right and holder of a gold mining or mineral lease is flawed, as the claimants have not considered the rights of the holder of a registered mineral claim.  Further, it submits the inquiry is not whether there is “inevitable” or “necessary” inconsistency between the use of the land by competing rights holders.
845		In Banjima at [1552]-[1560] and Ngadju at [100], the Court held that mineral claims do not extinguish native title rights other than exclusive native title rights to control access.  In Banjima at [1560], I did not accept the reasoning of Nicholson J in Daniel (2003) that non-exclusive native title rights in terms of remaining, ritual and ceremony, camping in terms of living on the land, and cooking and lighting fires were necessarily extinguished.  
846		Consistent with the decisions in Banjima and Ngadju, I reach the same conclusion in this case and find that the registration of mineral claims did not have the effect of extinguishing any native title rights, other than the right to control access.  In the event of inconsistency in the exercise of rights, the rights conferred on the holder of a relevant mineral claim would prevail over, but not extinguish native title rights and interests.  
847		I reject the claimants’ submission that a qualified right to control access survived the creation of mineral leases. 
Dredging claims
848		Dredging claims, like mineral claims, were governed by the Mining Regulations 1925.
849		The claimants dispute the validity of dredging claims in the claim area and say the evidence of their registration consists of handwritten entries, but it is not clear that the dredging claims were actually registered.  The claimants submit that the register used is for leases and the evidence omits reference to the relevant miner’s right.
850		If these dredging claims are valid, the claimants submit the effect of the issue of a miner’s right and subsequent registration of a dredging claim was the same as for mineral claims.  As such, they say that dredging claims did not extinguish any native title rights and interests other than an unqualified right to control access.
851		The State refers to the affidavit of Mr Robertson and submits that lease instruments for mining tenements are not issued as a matter of course and, accordingly, the absence or non-issue of a lease instrument does not mean that the dredging claims were not granted.  It says that where a lease instrument was not issued, the primary evidence was the official register, and the existence of an entry in the official register is evidence of its grant.  It observes that prior to 2001, the official register was in hard copy format and it is not surprising that early entries were handwritten.
852		The State refers to the following evidence that the dredging claims were granted:
·	Dredging claim 2100002: the register entry indicates the location and area of the claim, the name of the holder of the claim, period of the claim, rent payable and that the claim was approved on 11 October 1905.  The entry shows that the holder of the claim changed and that a portion of the claim was surrendered in 1907, which indicates that a dredging claim had come into existence.
·	Dredging claim 2100007: the register entry indicates the location and area of the claim, name of the holder of the claim, period of the claim, rent payable and that the claim was approved on 15 November 1934.  The entry shows that a lease was prepared, although the State has been unable to locate a copy of the lease, and that the claim was forfeited for non-payment of rent, which it says is a further indication the dredging claim had come into existence.
853		The State submits that dredging claims have the same effect on native title as mineral claims.
854		I accept the parties’ submission that dredging claims should be regarded as having the same effect on native title as mineral claims.  Consistent with Marshall J’s decision in Ngadju at [95] and my findings in relation to mineral claims, dredging claims did not extinguish native title rights apart from any subsisting native title rights to control access.
855		I have already rejected the claimants’ submission regarding the existence of a qualified right to control access.
Prospecting areas
856		The claimants admit the validity of the prospecting areas in the claim area, but submit the effect of the registration of a prospecting area was that it did not extinguish any native title rights and interests apart from the unqualified right to control access.
857		The State disputes the proposition that a qualified right to control access exists and that the rights of a holder of a prospecting area would prevent the exercise of native title rights, but not extinguish them.
858		In Banjima at [1610], I applied Nicholson J’s decision in Daniel (2003) at [796]-[797] and found that the prospecting areas did not extinguish any native title rights and interests other than a right to control access.  In relation to non-exclusive native title rights, I considered, at [1611], that to the extent the rights granted pursuant to the prospecting areas in their exercise were inconsistent with subsisting native title rights, these rights prevailed over but did not extinguish native title rights.
859		I reach the same conclusion in this case, and do not accept the claimants’ submission concerning a qualified right to control access, for the reasons set out above in respect of pastoral leases. 
Rights to water
860		The claimants and the State agree that the grant of water rights extinguished any right of exclusive possession to water on the land and waters subject to the grant. 
Temporary reserves
861		The claimants challenge the validity of certain temporary reserves in the claim area.  
862		They submit that the evidence for temporary reserves 7001543 and 7001664 is handwritten entries in lease registers and there is nothing to indicate that these temporary reserves have been created pursuant to s 276 Mining Act 1904.
863		For the remainder of the temporary reserves, the claimants contend it is not clear whether the evidence is for a temporary reserve or a right to occupy a temporary reserve.  They note, for example, in respect of temporary reserve 7001880, that the handwritten entry in the lease register appears to relate to a right to occupy a temporary reserve, as there is reference to a grantee, there appear to be typed conditions attached or pasted to the register, and there are entries relating to the typed conditions; yet there does not appear to be any reference to the relevant temporary reserve.  
864		Assuming these temporary reserves are valid, the claimants submit the effect of a temporary reserve under s 276 Mining Act 1904 was that it did not extinguish any native title rights and interests apart from an unqualified right to control access.
865		In the event the State also asserts a right to occupy the reserves, the claimants submit that given the limited nature of the right to occupy, it is not inconsistent with any native title rights and interests apart from an unqualified right to control access.
866		The State submits that lease instruments for mining tenements were not issued as a matter of course and entry in the official register is evidence of their grant.
867		The State says it is not clear the distinction the claimants are seeking to draw between a temporary reserve and a right to occupy a temporary reserve.  It submits evidence of a right to occupy a temporary reserve must be evidence of a temporary reserve, otherwise there would be nothing to occupy.
868		In respect of the effect upon native title, the State disputes the claimants’ contention that a qualified right to control access survived or that rights under temporary reserves prevailed for the extent of any inconsistency. 
869		In Banjima at [1896]-[1904], I held that the grant of rights of occupancy of a temporary reserve under the Mining Act 1904 extinguished exclusive native title rights, but rejected a submission that the grant of a right of occupancy is inconsistent with any native title rights to occupy, reside or dwell.  I found that the two rights may co-exist and in the event of any inconsistency upon exercise, the statutory right will prevail over native title rights.  Marshall J applied this reasoning in Ngadju at [110].
870		I reach the same conclusion in this case in respect of the effect of the temporary reserves upon native title, though do not accept the claimants’ submissions regarding a qualified right to control access for the reasons discussed above.
Oil prospecting areas
871		The claimants admit the validity of the oil prospecting areas and submit these did not extinguish any native title rights and interests apart from an unqualified right to control access.
872		The State rejects the notion of a qualified right of control or that statutory rights might prevail over native title rights but not extinguish them.
873		Consistent with my findings in Banjima at [1948], I accept that the oil prospecting areas extinguished any exclusive native title rights, but reject the claimants’ submission that there may be a qualified right to control access.  In the event of any inconsistency upon exercise, the oil prospecting areas will prevail over, but not extinguish, any subsisting native title rights.
Machinery area lease
874		The claimants dispute the validity of the machinery area lease and say the evidence of this lease is a handwritten entry in the register and there is nothing to indicate it was a lease granted under the Mineral Lands Act 1892. 
875		In the event the lease is valid, the claimants submit it was not inconsistent with any native title rights apart from an unqualified right to control access.
876		The State submits that lease instruments for mining tenements were not issued as a matter of course and the absence or non-absence of a lease instrument does not mean the temporary reserve was not granted; instead, entry in the official register is evidence of the grant.
877		The State says the affidavit of Mr Robertson explains the process for scanning and naming files when the hard copy official register is digitised and makes clear that this was a machinery area lease.  It submits the entry for this lease demonstrates that it was approved and granted.
878		The State disputes the notion of a qualified right to control access and that statutory rights prevail over but do not extinguish native title rights in the event of inconsistency upon exercise. 
879		In Ngadju at [99], Marshall J applied the reasoning in Banjima and found that the machinery areas did not extinguish any native title rights other than the right to control access.  
880		I accept his Honour’s decision in relation to the effect of machinery area leases and find that these leases did not extinguish any native title rights other than the right to control access.  In the event of any inconsistency upon exercise, the rights conferred by a machinery area lease prevail over but do not extinguish native title rights.  I do not accept that any qualified right to control access survived the grant of machinery area leases for the reasons discussed above. 
WHETHER CERTAIN ACTS DONE PRIOR TO 23 DECEMBER 1996 ARE VALID
Reserves
881		The State says that reserve 10835 was set aside for the purpose of “exempted from sale” under s 29 Land Act 1933 by notice published in the Gazette on 15 February 1980. 
882		The claimants submit that a reserve for this purpose was beyond the scope of the relevant regulations, was not validly reserved and should not be recorded as “other interests” in the determination. 
883		For the reasons discussed above in relation to other “exempted from sale” reserves, I find that a reserve set aside as “exempted from sale”, without the identification of specific purposes under s 29 Land Act 1933, was not sufficient to come within the scope of the provisions.  As such, reserve 10835 was not validly reserved and should not be recorded as “other interests” in any determination.
Mining tenements
Unsurveyed mining tenements
884		The claimants submit that the following mining tenements are not capable of being described with sufficient certainty to be determined as “other interests”: 
5800110, 5800160, 5800188, 5800207, 5800208, 5800211, 5800220, 5800224, 5800225, 5800231, 5800232, 5800238, 5900291, 5900305, 5900308, 5900309, 5900328, 5900346, 5900347, 5900379, 5900380, 5900386, 5900387, 5900396.
885		The claimants say these mining leases, granted under s 71 Mining Act 1978, were subject to the requirement in s 80(1) that “Land the subject of a mining lease shall be surveyed, but it shall not be necessary for the survey to be carried out prior to the granting of the lease”.
886		Further, they say each lease is subject to s 105B Mining Act 1978, which provides:
The grant of a mining tenement shall be deemed to have been made subject to a condition that the land applied for is found to have been available for the purposes of that grant after a survey has been made of the tenement.
887		Due to these provisions, the claimants submit it is only possible to know the boundaries of a mining lease once a survey has been conducted: Pawson v Director General, Department of Mines and Petroleum [2012] WAMW 13 at [99]-[100].  They say the leaseholder’s entitlement to receive an instrument as proof of title only arises after a survey has been completed. 
888		The claimants refer to the reasoning of the majority in Ward at [150], where it was stated that the term “grant” is apt to mislead, and rights may be “incapable of identification in law without the performance of a further act or the taking of some further step beyond that otherwise said to constitute the grant”.
889		The claimants submit that the “grant” of a mining tenement under the Mining Act 1978 is subject to a condition of survey, and the tenement holder’s rights in land cannot accrue or be asserted, including against native title holders, until this condition is satisfied.
890		In the claimants’ submission, none of the leaseholders are entitled to receive a lease instrument, as none have had their leases surveyed and it is not possible to know the boundary or area of each lease until a survey is completed.  They say it is not appropriate for native title rights to be subject to unsurveyed mining tenements where the Court cannot determine the “nature and extent” of such interests, particularly given that boundaries are often amended following a survey.  
891		The State disagrees regarding the operation of ss 80, 83, 105B and 116(1) Mining Act 1978 and says the valid grant of a mining lease is not dependent upon carrying out a physical survey or issuing a formal lease instrument.
892		In the State’s submission, instruments for mining leases were not issued as a matter of course, but were only issued upon a request by the tenement holder and where a lease instrument is not issued or has been lost or destroyed, the primary evidence is the official register. 
893		The State’s does not accept that the boundaries of the mining tenements are in doubt.  It relies on Mr Robertson’s affidavit, who stated that the boundaries of unsurveyed leases are depicted on the tenure DVD and the Department of Mines and Petroleum’s TENGRAPH system, which is the official electronic plan of mining tenements in Western Australia and is substantially reliable and provides an accurate record of the location of mining tenements.
894		It says it is not clear on what basis the claimants assert that in a great majority of cases following a survey, boundaries of tenements are amended.  It refers to Mr Robertson’s affidavit evidence that amendments to tenement areas may occur where a survey shows an encroachment upon an existing tenement which has priority over the later tenement.
895		The State submits that native title determinations routinely include a range of interests under “other interests” for which the location or area is imprecise.  It points out that the note to s 225 NTA confirms that other interests may be recorded by reference to a particular kind of non-native title interest.  It refers to the Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) at [26.26]:
This amendment adds a note to section 225 in the Bill to explain that when making a determination of native title that deals with other interests in the area, the determination can refer to particular kinds of non-native title interests rather than detailing each non-native title interest, or even each category of interest.
896		In the State’s submission, in circumstances where the drafters of the NTA envisaged that a description of a general tenure type would suffice, the fact that a particular tenure cannot, or is not, defined with precise geographical coordinates does not prevent it being recorded as an “other interest”.  It says the claimants’ reference to Ward is inapposite, as the High Court was dealing with uncertainty regarding the content of rights, not their geographic extent.
897		In Ngadju at [93]-[94], Marshall J considered the validity of mining tenements where a relevant survey had not occurred.  In respect of historical tenements granted “subject to survey”, his Honour found that this was a condition precedent and there was no evidence that this condition precedent had been fulfilled.  Marshall J reached the conclusion that another mining tenement was unsurveyed and in the absence of a map after such a survey, it was not possible to say whether the tenement was validly created and the State had not discharged its onus of providing sufficient material to demonstrate it validly extinguished native title.
898		I consider that Marshall J’s approach in Ngadju is correct and should be applied here.  Due to the operation of ss 80(1) and 105B Mining Act 1978, the valid grant of a mining tenement was subject to a condition that a survey be carried out.  In the absence of evidence that a survey was carried out, it is not possible to state with certainty the boundaries of a lease or that the tenement was validly created.  
899		While the State submits that boundaries of unsurveyed leases are depicted on the TENGRAPH system, which is substantially reliable, this does not overcome the requirement for a valid grant of a mining tenement that such tenement be surveyed.  On this basis, the mining tenements challenged by the claimants should not be recorded as “other interests” in any determination.
Compliance with s 22H NTA
900		The claimants submit that s 22H NTA obliged the State to provide the claimants with details of mining tenements granted within the claim area between 1 January 1994 and 23 December 1996.  It says it is not aware of the State having complied with this obligation.
901		Further, they say a number of mining leases granted between 1 January 1994 and 23 December 1996 have not been surveyed and it is not possible for the State to have provided the claimants with sufficient information to enable the area affected by the acts to be identified, as required by s 22H(2)(c) NTA.  
902		These mining leases are:
5800211, 5800220, 5800224, 5800225, 5800231, 5800232, 5800238, 5900305, 5900308, 5900309, 5900328, 5900346, 5900347, 5900379, 5900380, 5900386, 5900387 and 5900396.  
903		In the absence of evidence to the contrary, the claimants contend the Court should find that the State has not complied with its obligations under s 22H NTA.
904		The State submits it has complied with the notification requirements under 
s 22H NTA.  It refers to Mr Lannan’s affidavit, which states that on 4 November 1999, the Department of Mines and Petroleum placed a notice in the Gazette, giving notice pursuant to s 22H(1)(e) NTA in relation to mining tenements validated in accordance with s 22F NTA and s 12A TVA.  Mr Lannan said that he was unable to locate copies of the notice given to the claimants and their representative pursuant to s 22H(1)(d) NTA.  
905		In circumstances where the evidence demonstrates that the State complied with s 22H(1)(e) NTA, the State submits the presumption of regularity allows an inference to be drawn that it also complied with s 22H(1)(d).
906		It says that all mining leases were included in the notification under ss 22F and 22H NTA, other than mining leases 5800231, 5800232, 5900380 and 5900396.  The State contends that mining leases 5800231, 5800232, 5900380 and 5900396 were not included, on the basis that they were notified under s 29 NTA as it stood prior to the Native Title Amendment Act 1998 (Cth), and at the expiry of the notification period, there was no relevant native title party.  Accordingly, it says the grants of these mining leases were valid future acts and not intermediate period acts.
907		To the extent the mining leases are unsurveyed, the State repeats its earlier submissions and contends that this did not prevent the State from being able to provide the claimants with “sufficient information to enable the area affected by the act to be identified”.
908		Section 22H NTA relevantly provides:
22H  Requirement to notify: mining rights

(1)	If:
(a)	an act that is attributable to a State or Territory consists of:
(i)	the creation of a right to mine; or 
(ii)	the variation of such a right to extend the area to which it relates; or
(iii)	the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and
(b)	the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and
(c)	at any time before the act was done, either:
(i)	a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or
(ii)	a public work was constructed or established on any of the land or waters affected by the act;
the State or Territory must, before the end of 6 months after the commencement of the law of the State or Territory that validates intermediate period acts attributable to the State or Territory in accordance with section 22F:
(d)	give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and
(e)	notify the public in the determined way of the details set out in subsection (2).
Details
(2)	The details are:
(a)	the date on which the act was done; and
(b)	the kind of mining involved; and
(c)	sufficient information to enable the area affected by the act to be identified; and
(d)	information about the way in which further details about the act may be obtained.
909		Section 22H(1)(d) clearly imposes obligations on the State to notify registered native title claimants and representative bodies in relation to the land and waters affected by the act and provide the details in s 22H(2).  These details include sufficient information to enable the area affected by the land to be identified: s 22H(2)(c).
910		The State seeks to rely on the presumption of regularity, in effect to assert that having notified the public pursuant to s 22H(1)(e), it can be inferred that it has also complied with the notice obligations in s 22H(1)(d).
911		In circumstances where the State has not provided evidence that it did notify the claimants or the claimants’ legal representatives in relation to the relevant mining leases, it has not discharged its onus of proving that it complied with this obligation.  In my view, the presumption of regularity does not assist in establishing compliance with this obligation under the NTA, particularly where the fact of compliance is a matter peculiarly within the State’s knowledge and the onus rests on the State to prove that tenure was validly notified.
912		Further, consistent with my reasoning in relation to the unsurveyed mining tenements above, I accept the claimants’ submission that, absent evidence that these tenements were surveyed, it could not have been possible for the State to have provided sufficient information to the claimants’ representatives to enable the area affected by each act to be identified for the purpose of s 22H(2)(c).
913		Accordingly, I am not satisfied that the State has complied with its obligations under s 22H NTA in relation to the relevant mining leases.
914		Nonetheless, I accept the State’s submission that mining leases 5800231, 5800232, 5900380 and 5900396 were relevantly notified under s 29 of the previous NTA and at the expiry of the notification period, there was no native title party that was required to be notified at the time.  
WHETHER CERTAIN ACTS DONE AFTER 23 DECEMBER 1996 ARE VALID FUTURE ACTS
Land tenures
CT0222000802
915		Freehold title CT0222000802 was granted over land subject to special lease 3116/02816. 
916		The claimants dispute the validity of special lease 3116/02816.
917		I considered this submission above and found that the area covered by special lease 3116/02816, and therefore also freehold title CT0222000802, was previously subject to reserve leases 332/0501 and 0653/41A.  
918		While I accepted the claimants’ submission that reserve lease 0653/41A was not validly created, the validity of reserve lease 332/0501 is not otherwise in issue.  I therefore accept the State’s submission that native title was extinguished by the grant of reserve lease 332/0501, but not 0653/41A.  Accordingly, the grant of special lease 3116/02816 and freehold title CT0222000802 were not future acts which affected native title. 
Taking order I402911 (CT0222300652)
919		The claimants submit that the grant of CT0222300652 was invalid, because the compulsory acquisition which facilitated the grant (taking order I402991) was invalid.  They say that taking order I402991 involved a compulsory acquisition of native title rights and interests, yet does not fall within any base of validity under s 24MD NTA, as it is inconsistent with ss 24MD(2), 24MD(2A) and 24MD(3).  
920		In respect of s 24MD(2)(b), they say it does not fit within this provision, as rights created prior to the grant of mining tenements were specifically excluded from the acquisition.
921		They submit it also does not fit within the scope of s 24MD(2A), as no negotiation process was entered into and no agreement reached.
922		Further, they submit that it does not fall within s 24MD(3) and the non-extinguishment principle did not apply, as the act explicitly involved the taking of all native title rights and interests under s 177 Land Administration Act.  It says that the taking order records that interests taken included “All registered and unregistered interests (including any native title rights and interests) in the land”.
923		The claimants refer to State of Western Australia v Gordon [2010] NNTTA 152; (2010) 258 FLR 168, where DP Sumner determined that a compulsory acquisition could proceed under s 24MD(3) in circumstances where s 24MD(2) did not apply.  Yet they say that Sumner DP found that such a compulsory acquisition could only proceed if it was non-extinguishing and did not involve the taking of native title rights.  They refer to Sumner DP’s comments at [85]:
I point out that if there is a proposal to grant freehold title of the Land to the grantee party to facilitate any future expansion plans and which would extinguish native title then this would constitute a separate future act to which the right to negotiate provisions of the NTA would apply.

924		In the claimants’ submission, taking order I402991 is thus wholly invalid, and the Court should not determine that the act is valid but non-extinguishing, as this would fundamentally change the nature of the act.
925		The State contends that the claimants have misconstrued the relevant legislative provisions and these provisions should be understood as follows:
(1)	Sections 24MD(2) and (2A) provide for the extinguishment of native title by compulsory acquisition or surrender. 
(2)	One of the conditions for the operation of s 24MD(2) is that the whole of all non‑native title rights and interests are also acquired in connection with the acquisition of native title rights and interests.
(3)	In circumstances where not all non-native title rights are compulsorily acquired, then the condition in s 24MD(2) will not be satisfied. 
(4)	It follows that there will be no engagement of s 24MD(2)(c), which provides that “the compulsory acquisition extinguishes the whole or the part of the native title rights and interests”.
(5)	On the basis that the compulsory acquisition would not be covered by s 24MD(2) or (2A), s 24MD(3) would then apply, which provides that the future act is valid, but the non-extinguishment principle applies to the act.
(6)	The application of the non-extinguishment principle is the result of the operation of s 24MD(3), not the threshold test for its application.
926		The State concedes that s 24MD(2) and (2A) do not apply, but submits that the non‑extinguishment principle in s 24MD(3) applies. 
927		Accordingly, the State submits there is no issue of invalidity regarding taking order I402991 and it should be recorded in the determination as an “other interest” which prevails over native title for the purposes of s 225(c) and (d) NTA.
928		In circumstances where the State has accepted that s 24MD(2) and (2A) do not apply, the issue is whether the taking order otherwise fits within the scope of s 24MD(3), such that the non-extinguishment principle applies.
929		The terms of s 24MD(3) are as follows:
24MD  Treatment of acts that pass the freehold test
…
(3)	In the case of any future act to which this Subdivision applies that is not covered by subsection (2) or (2A):
(a)	the non-extinguishment principle applies to the act; 

930		 I accept the State’s submission that taking order  I402991 is a future act that is not covered by s 24MD(2) and (2A), and that the non-extinguishment principle in s 24MD(3) therefore applies.  It should be recorded in any determination as an “other interest” which prevails over native title for the purposes of s 225(c) and (d) NTA.
Reserve 44366
931		Reserve 44366 was set aside for the purpose of “rubbish disposal site” pursuant to s 29 Land Act 1933 by notice published in the Gazette on 15 April 1997. 
932		In the claimants’ submission, a rubbish disposal site is not a public work within the meaning of s 24KA(2) NTA.  They say rubbish disposal sites and sewerage facilities are markedly different kinds of works and it is not a low impact future act under s 24LA(1)(b)(vii) NTA.
933		They observe that the act could have been validly done in accordance with Pt 2, Div 3, Subdiv M NTA or by negotiating an Indigenous Land Use Agreement, although there is no evidence that such future act processes were complied with. 
934		To the claimants’ knowledge, the State did not afford the claimants any native title procedural rights under s 24KA at the time of the act and the act is therefore invalid to the extent it affects native title pursuant to s 24OA NTA.
935		The State contends that the land was previously subject to reserve lease 0653/41A, which wholly extinguished native title.  It says the creation of reserve 44366 did not affect native title and was not a future act.
936		In the alternative, it submits reserve 44366 was validly created and prevails over native title pursuant to the non-extinguishment principle, as it is a reserve for services to the public to which s 24KA NTA applies.
937		The State contends that the claimants have not identified the procedural rights that should have been afforded, and the Land Act 1933 did not specify any particular procedural steps to be taken, other than notice in the Gazette.  
938		If there was a failure to afford procedural rights, it submits the reserve is nevertheless valid.  The State refers to The Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland [2001] FCA 414; (2001) 108 FCR 453, where French J held at [58]:
The subdivisions which provide for prior notification to registered native title claimants and others do not appear to condition the validity of the future acts to which they apply upon compliance with that requirement. … Absent some express provision, as in subdivision P, it is not to be supposed, having regard to the statutory setting, that non-compliance with those procedural requirements goes to validity.

939		I have previously considered the validity of reserve lease 0653/41A and found that it was not validly granted and did not extinguish native title.  The State’s submission to this effect should be rejected.
940		The issue is then whether the creation of reserve 44366, which was set aside for the purpose of “rubbish disposal site”, complied with the relevant future act processes.
941		The list of facilities for services to the public is set out in s 24KA(2) and includes such facilities as a sewerage facility other than a treatment facility and any other thing that is similar to the others listed.  I accept the State’s submission that the rubbish disposal site is a reserve for services to the public pursuant to s 24KA NTA to which the non-extinguishment principle applies.
942		Further, I am not satisfied that the claimants have sufficiently identified the procedural steps which were required to be accorded to the claimants, or that in the event of a failure to comply with such procedural steps, the reserve is invalid: see Lardil at [58].
Water tenures
943		The parties agree that the claim area contains a number of rights and interests granted or managed by the Department of Water.
Mining and petroleum tenements
Mining tenements said to be invalid for NTA non-compliance
944		The claimants challenge the validity of certain mining tenements listed at [321](iv)‑(xxv) of the claimants’ extinguishment submissions on the basis that they were granted without affording the claimants appropriate procedural rights under the NTA.
945		The claimants’ representatives conducted a search on the National Native Title Tribunal’s database and say there is no record of any notice under s 29 NTA being issued in respect of these tenements. 
946		Further, the claimants say the Mining Tenement Register Search extracts in evidence contain a field entitled “Native Title Advertised Date”, and for all tenements except M5800241, this field has been left empty, indicating that no notification under s 29(3) occurred.  In their submission, it should be inferred that the State did not comply with s 29 NTA in respect of these tenements and subject to evidence of prior extinguishment, they should be presumed invalid to the extent they affect native title. 
947		The State submits that mining leases M2100106, M2100107, M5800230 and M5800241 were granted in circumstances where, immediately prior to the grant, there was no native title party in relation to the land or waters affected.  It says these mining leases were notified pursuant to s 29 NTA as it stood prior to the Native Title Amendment Act.  At the end of the two month notification period, it says the only registered native title claimants or registered native title bodies corporate in respect of the area were the Pandawn Descendants native title determination application (WAD 43 of 1998) and the Wutha People # 2 native title determination application (WAD 6071 of 1998). 
948		Accordingly, the State submits that only these registered native title claimants had any procedural rights under the previous provisions of the NTA or the NTA following the Native Title Amendment Act.  It notes that the claimants wrote to the State acknowledging they did not have any procedural rights under the NTA in respect of the grant of mining lease M5800230.
949		The State observes that the Pandawn Descendants native title application and Wutha People # 2 native title application later ceased to cover the land and waters of the mining tenements, and at the end of the notification period but immediately before the tenements were granted, there was no native title party in relation to any of the land or waters affected by the grant.  On this basis, the State submits that the grant of these tenements was valid.
950		In relation to mining leases M5800249, M5800267, M5800331, M5800332, M5800336, M5900402, M5900403, M5900404 and M5900509, the State submits that these tenements were granted under the Mining Act 1978 in replacement of gold mining leases issued under the Mining Act 1904.
951		The State says that each of the mining leases were granted for the same term as the gold mining leases they replaced, over the same area and to the same tenement holder.  It notes that Sh 2, cl 2 Mining Act 1978 provides that every gold mining lease granted under the Mining Act 1904 and in force immediately before the commencement of the Mining Act 1978, shall be deemed to be a mining lease granted under the Mining Act 1978.
952		Accordingly, the State submits that to the extent these mining leases are invalid by reason of the RDA, these mining leases are past acts as defined in s 228(4) NTA. It says the interests created by the mining leases took effect after the interests created by the gold mining leases ceased to have effect and permitted similar activities to those permitted by the old mining leases. 
953		Accordingly, the State says the grant of the mining leases was validated by s 19 NTA and s 5 TVA. Further, it submits that since each of the grants were mining leases, the grants were category C past acts to which the non-extinguishment principle applies pursuant to ss 15 and 19 NTA and s 9 TVA. 
954		In the alternative, the State submits that to the extent the grant of the mining leases were future acts, they were validated by the future act provisions of the NTA. In particular, it says the grant of each of the mining leases was a “permissible lease etc renewal” pursuant to s 24IC NTA.
955		The State says that s 24ID(1) NTA provides that if Subdiv I applies to a future act then, subject to Subdiv P, the act is valid and, provided the act is not the grant of a freehold estate, the non-extinguishment principle applies.  It submits that save in respect of grants of freehold estate or the permissible lease etc renewal of a non-exclusive agricultural lease or a non-exclusive pastoral lease, no procedural rights apply.
956		The State notes that Subdiv P NTA applies to a permissible lease etc renewal which consists of the renewal, regrant, remaking or extension of the term of a lease, licence, permit or authority which creates a right to mine.  It says, however, that s 26D NTA provides that Subdiv P does not apply to the creation of a right to mine where the creation of the right is done by the renewal, regrant, remaking or extension of the term of an earlier right to mine, the earlier right to mine was valid and created prior to 23 December 1996 and the area, term and rights created are the same as between the new right to mine and earlier right to mine.
957		In the State’s submission, the area, holder and rights created by the mining leases were the same as the gold mining leases which they replaced and the procedural rights in Subdiv P therefore did not apply to their creation.  Further, it says that as no procedural rights applied under Subdiv I, the mining leases are valid, to the extent their grants were future acts.
958		In the particular statutory and factual circumstances that existed at material times, the Court accepts the primary submission of the State and finds the relevant mining tenements identified by the State to have been validly granted.
 “Ward policy” tenements
959		The claimants note that the High Court in Ward overturned the reasoning of the Full Court in Ward FC with respect to enclosed and/or improved areas of pastoral leases.  It says that given the State adopted a policy between July 2000 and February 2001 of granting mining tenement without reference to native title on areas of land that were wholly within parts of pastoral leases that had been enclosed and improved, it is likely that tenements granted during the time of the “Ward policy” are invalid to the extent they affect native title.
960		The claimants say this is clearly the case with exploration licence E5900908, the circumstances of which are set out in Badimia (WC96/98)/Western Australia/Bruce Robert Legendre, Wedgetail Resources Pty Ltd, Voermans Geological Services Pty Ltd [2000] NNTTA 331.  They submit it is clear from this decision that the claimants were not afforded procedural rights under Pt 2, Div 3, Subdiv P NTA. 
961		The claimants submit that tenement G5900028 was also granted during this period and there was insufficient time between the application for the tenement on 25 September 2000 and the grant of the tenement on 11 December 2000 for the appropriate NTA procedural rights to have been afforded.  They say it can be assumed that the relevant procedures of the NTA were not complied with.
962		The claimants submit that the following tenements were also granted during the “Ward policy” period: 
M5800304, M5900402, M5900403, M5900404, G5900027, P58001129, P58001054, P58001055, P58001056.  
In the absence of evidence to the contrary, they submit it should be assumed that these tenements are invalid to the extent they affect native title.
963		The State accepts that the mining tenements E5900908, G5900027, G5900028, M5800304, P58001054, P58001055, P58001129 and P58001056 were granted without reference to the future act provisions of the NTA, based on an incorrect belief that native title had been wholly extinguished, in accordance with the findings in Ward FC.
964		In Ngadju at [96], Marshall J accepted a similar submission regarding the invalidity of Ward policy leases.  
965		In this case, I likewise accept that the tenements challenged by the claimants are invalid to the extent they affect native title.
Tenements subject to indemnity
966		The claimants say the State had a policy during the late 1990s of seeking indemnities from mining tenement holders where there was some doubt as to whether the tenement was validly granted under the NTA, so that the tenement holder, rather than the State, would be liable for any compensation.  They refer to a discussion of this policy in the Western Australian Parliament in 1998 with the State opposition.
967		They submit the following tenements are subject to an indemnity: 
M2100106, M2100107, M5800230, M5900402, M5900403, M5900404, M5900509, G5900027. 
968		In each case, they say there is a condition in the following (or similar) terms:
The lessee is liable for the payment of any compensation under the Native Title Act 1993 payable to a native title holder as a result of the grant of the lease or any activities conducted by the lessee in connection with the lease. (The term ‘native title holder’ has the same meaning as that term in the Native Title Act 1993.)

969		The claimants contend the inclusion of an indemnity suggests the State had grounds for considering the tenements might not be validly granted, and in the absence of evidence to the contrary, it should be assumed these tenements are invalid to the extent they affect native title.
970		The State submits the Hansard debate referred to does not disclose a general policy of seeking indemnities from tenement holders when there was doubt as to whether the tenement was validly granted.  It says the Parliamentary debate referred to seven instances between 1995 and 1998 which were described as “special cases” and the government said it had “carefully researched whether there could be any form of adverse effect on any native title and concluded that there was not”: Western Australia, Legislative Assembly Committee, Parliamentary Debates (29 October 1998) p 2929.  The State submits there is no suggestion that any of these seven tenements were within the claim area.
971		Further, the State contends that the claimants overlook s 125A Mining Act 1978, which was introduced in 1998 and provides that if compensation is payable to native title holders, the holder of the mining tenement is liable to pay compensation.  It says the conditions attached to the tenements are no more than a restatement of s 125A Mining Act 1978.
972		The State submits there can be no suggestion that the introduction of s 125A Mining Act 1978 provides a basis to infer that the tenements might not be validly granted, and the purpose of this provision was to shift the burden of any compensation to the holder of a tenement.  The State notes that pursuant to s 123, tenement holders are also required to pay compensation to ordinary owners and occupiers of land where mining takes place, and s 125A extends this to include native title holders.
973		In my view, the inclusion of an indemnity, without more, does not provide a ground to infer that the tenement to which it applied was not validly granted under the NTA.  I accept the State’s submission that the conditions attached to the tenements are consistent with s 125A Mining Act 1978, and the introduction of s 125A Mining Act 1978 does not support an inference that tenements were invalidly granted.
Tenements said to have been granted with insufficient time for NTA compliance
974		The claimants submit there was insufficient time between the application and grant of the following tenements for the NTA procedures to have been complied with and as such, these leases are invalid to the extent they affect native title: 
M5900509 (application 9 October 1998, grant 4 December 1998), M5800331 (application 9 October 2001, grant 28 December 2001), M5800332 (application 8 October 2001, grant 28 December 2001)
975		The validity of these tenements has already been considered and I accepted the State’s submission that each was validly granted under the Mining Act 1978 in replacement of gold mining leases issued under the Mining Act 1904 and no procedural rights applied.
Tenements which have not been surveyed
976		The claimants submit that the following tenements have not been surveyed and are not capable of being described with sufficient certainty to be included as “2s” (which the State and the Court assume to be a reference to “other interests” for the purposes of any determination) within a native title determination: 
M2100106, M5800241, M5900404, M5900431 
977		I have already found that a survey was a condition of a valid grant of mining tenements.  Accordingly, I accept the claimants’ submission in respect of tenements M2100106, M5800241, M5900404, M5900431. 
Tenements which fail the freehold test
978		The claimants say that certain mining tenements could not have been granted if native title holders held ordinary title to the land.  They submit these acts fail the freehold test in s 24MB NTA and therefore do not come within the scope of Pt 2, Div 3, Subdiv P NTA (by operation of s 26(1) NTA).  As there is no other basis for validity, the claimants contend that s 24OA NTA applies and they are invalid to the extent they affect native title. 
979		These tenements are identified as follows:
Tenement number	Reason why the tenement fails the freehold test	
P59/1930, P59/1929	Boundary description contains qualifier:
“Sub-surface rights are sought only in respect of any private land affected by this application”	
P58/927, P58/1504, M58/232, M58/230, L59/89, L59/88, E59/1697, E59/1623, E59/1538, E59/1528	Contains endorsement:
“The grant of this Licence does not include any private land referred to in s 29(2) of the Mining Act 1978 except ‘that below 30 metres from the natural surface of the land.’”	
E70/2891, E21/129, E21/100	Boundary description contains qualifier that licence does not include:
“Any private land referred to in s 29(2) of the Mining Act 1978 except ‘that below 30 metres from the natural surface of the land’”.	

980		The State submits it is not clear on what basis the claimants assert these tenements could not have been granted if the native title holders instead held ordinary title to the relevant land.  It says ss 27 and 29(1) Mining Act 1978 provide for the grant of tenements over private land and the Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) used the grant of a mining lease as an example of an act which could be done in relation to land the subject of ordinary title.  It says this example is reflected in the note to s 24MB(1) NTA.
981		The State submits that to the extent the claimants’ table provides any assistance in this respect, it appears the claimants take issue with certain endorsements which exclude from the tenement area any private land referred to in s 29(2) Mining Act 1978.
982		Subsection 29(1) Mining Act 1978 provides that a mining tenement may be granted in respect of an area which consists of private land.  Subsection 29(2) states that the tenement is to be limited to areas not less than 30 metres below ground in relation to specified types of improvements unless the landowner otherwise consents.
983		In the State’s submission, the endorsements on each of the tenements demonstrated that they were, in fact, granted over private land and were impliedly granted without the consent of the private landowner.  It says that similar restrictions upon mining activities also apply to Crown land. 
984		I accept the State’s submission and find the tenements in question were validly granted.
WHETHER CERTAIN INTERESTS SHOULD BE RECORDED AS “OTHER INTERESTS” IN ANY NATIVE TITLE DETERMINATION
Rights of access to mining tenements
985		The State submits the holders of mining and petroleum tenements have a right to access their tenements by reason of an easement of necessity, if they do not otherwise have a right of access.  It contends that, where applicable, an easement of necessity arises notwithstanding native title rights, as at common law a tenement can be granted despite native title and access to the land is imperative. 
986		The claimants’ contest this submission and submit that an easement of necessity can only arise in order to give effect to an actual or presumed intention on the part of a grantor of land, and not on the basis of public policy: Bolton v Clutterbuck [1955] SASR 253 at 268; North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd [1971] 2 NSWLR 150 at 155. 
987		In any case, the claimants submit that the rights of access of mining tenement holders are not determinable at common law; instead, they are controlled by statute.  They say a mining tenement holder has limited rights to access their tenements under s 29(7)(b) Mining Act 1978 as well as rights to apply for permission to access a tenement by way of a miscellaneous licence or other relevant mining tenement.
988		Accordingly, the claimants submit that rights of access to mining tenement holders should not be recorded in a determination as “other interests”.
989		I considered similar submissions in Banjima at [1774]-[1791] and rejected the easement of necessity contended for by the State.  In that case, I found that the State’s submission was not only novel, but unsupported by authority or statute.  
990		I reach the same conclusion in this case and find that there are no easements of necessity or similar that burden native title rights here.
State’s ownership of geothermal energy and geothermal energy resources
991		On 19 January 2008, the Petroleum and Geothermal Energy Resources Act 1967 (WA) was amended to extend the State’s ownership of petroleum to “geothermal energy” and “geothermal energy resources”. 
992		The claimants submit that their claimed native title rights include rights to geothermal energy and geothermal energy resources, specifically:
·	the claimed exclusive rights, including the right to possession, occupation, use and enjoyment of the area as against the whole world, include rights in geothermal energy and geothermal energy resources;
·	the various claimed rights relating to control, use and/or enjoyment of the resources of the area include rights of control, use and enjoyment of geothermal energy and geothermal energy resources; and
·	the claimed rights to visit, maintain and protect places of importance under traditional laws, customs and practices in the area include the right to maintain and protect subterranean rock and other substances, such as geothermal energy resources, in so far as they form part of the physical and cultural landscape.
993		The claimants note that the majority of the High Court in Ward found at [376] that rights expressed as being in relation to “resources” encompass all forms of resources, including minerals of all kinds.
994		The claimants say that the amendment of the Petroleum and Geothermal Energy Resources Act was a legislative act to which the freehold test applies under s 24MA NTA.  They say they are not aware of being afforded procedural rights, as required under Pt 2, Div 3, Subdiv P NTA in respect of the compulsory acquisition of native title rights and interests.  as such, they say the amendment of the Petroleum and Geothermal Energy Resources Act was invalid to the extent it affects native title.
995		If the State’s ownership of geothermal energy and geothermal energy resources is found to have no effect on native title, the claimants submit such ownership should not be recorded in the determination as another interest that prevails over native title under s 225(d) NTA, as an interest which has no effect on native title cannot prevail over native title.
996		The State submits that s 9 Petroleum and Geothermal Energy Resources Act, as amended, confirms the State’s ownership of geothermal energy and geothermal energy resources.  It contends there is no evidence that members of the claim group held or hold rights to geothermal energy resources under traditional law and custom.  The State says the High Court’s discussion in Ward at [376] does not support a proposition that “resources” in a native title claim extend to every conceivable resource. Instead, the extent and proof of claimed native title rights is a matter for the claimants to establish.
997		The State submits that even if, which is denied, the claimants held a right to control access to the claim area, it does not follow that this right incudes rights in geothermal energy resources located beneath the surface.  
998		Accordingly, it says the amendment to the Petroleum and Geothermal Energy Resources Act was not a future act as it did not affect native title.
999		Alternatively, if the amendment was a future act, the State submits it was done validly and extinguished any native title right to geothermal resources.  If it constituted a compulsory acquisition of native title rights, the State submits it was an act to which s 26(1)(c)(iii)(A) NTA applied and these requirements were satisfied. 
1000		I considered the issue of rights to geothermal energy and geothermal energy resources in Banjima at [1758]-[1773] and would adopt the same reasoning here.  On the basis outlined in that case, there is no need to record the assertion of control over geothermal energy resources and geothermal energy by s 9 Petroleum and Geothermal Energy Resources Act in the determination.
WHETHER THE BADIMIA # 2 APPLICATION SHOULD BE DISMISSED
1001		The initial Badimia claim, WAD 6123 of 1998, was lodged on 4 October 1996 and a second Badimia claim, WAD 100 of 2012 (Badimia # 2), was lodged over the same area and on behalf of the same claim group on 13 April 2012.
1002		The State filed an interlocutory application on 29 May 2012, seeking to have the Badimia # 2 application dismissed as an abuse of process.  It says that in all respects, save as to the identity of the named applicants, both applications are identical, as they are brought on behalf of the same persons, cover the same area, seek the same native title rights and interests, cite the same facts, attach identical maps and cite the same non-native title rights and interests.
1003		The State notes that counsel for the claimants confirmed this at a directions hearing on 4 May 2012 and indicated that the Badimia # 2 claimants were not seeking to have the application recognised and conceded it was incapable of registration under s 190C NTA.
1004		The State contends the Badimia # 2 application has been made on a speculative basis, in order to supplement the claimants’ ability to contend for the application of ss 47, 47A and 47B, which allow prior extinguishment of native title to be disregarded in certain circumstances.  It submits the claimants have simply reproduced the original claim, hoping that there might be areas to which ss 47, 47A or 47B now apply.
1005		The State submits that if the result of lodging such a claim is that ss 47, 47A and 47B NTA now apply, this is contrary to the intent of the NTA and amounts to an abuse of process.  While it accepts that ss 47, 47A and 47B are beneficial provisions, it says the intent of these provisions cannot be to allow “repeated, unending, overlapping claims” to be brought. The State submits that this would thwart the principle of permanency of extinguishment and would create considerable uncertainty as to whether native title had ever been extinguished, particularly with respect to future acts and public exposure to compensation: see Alyawarr FC at [186]-[187].
1006		The State contends that if the Badimia # 2 application is allowed, there would be no reason in principle why further, similar applications are not also permissible, meaning that the problems may be multiplied ad infinitum, so long as the claimants simply photocopy and resubmit to the Court facsimiles of the original application.
1007		The State emphasises that the tenure evidence it filed in respect of the initial Badimia application pre-dates the Badimia # 2 application and is insufficient to determine the potential areas to which ss 47, 47A and 47B NTA may apply within the Badimia # 2 application.  Its written submissions therefore only address the application of ss 47, 47A and 47B to the initial application.
1008		The State submits that if the Badimia # 2 application is permitted to remain on foot, then the State will be obliged to conduct a further inquiry into the land and mining tenure history of the claim area and file additional material, which would delay any determination of the Badimia claim by many months.  It says that such further inquiry would consume significant public resources, which are more appropriately directed at progressing other native title determination applications, rather than in furtherance of “fishing expedition” litigation.  
1009		The State contends the claimants lodged the Badimia # 2 application without knowing whether there is any basis for it, with the suggestion that the State would complete significant, expensive work to determine whether the application has any practical rationale.  On the basis of statutory construction and public policy principles, it therefore submits that the later overlapping claims brought by the same or some of the same claimants are not relevant for the purposes of ss 47, 47A and 47B.
1010		The claimants acknowledge that the purpose of the Badimia # 2 claim is to take advantage of s 47B NTA over any parcel of land that has become UCL since the initial Badimia claim was lodged.  They submit the NTA is beneficial legislation and the claimants should be able to obtain the benefit of s 47B(3).
1011		In the claimants’ submission, there is no abuse of process if the same claim group makes a claim over an identical area to obtain the benefit of the disregarding of previous extinguishment.  They observe that s 13 NTA allows an application to be made for “a determination of native title in relation to an area for which there is no approved determination of native title”.  They submit there is no statutory impediment to two native title claims being made over the same area by the same group, as only one of the claims will be able to obtain registration.
1012		The claimants say it appears that most of the information regarding UCL has been provided to the Court and the parties.  In their view, the State’s concerns about delay would have been alleviated if the State had prepared its extinguishment case earlier.  They submit it could not have been expected by Parliament in 1993 that native title claims would take so long to be heard or extinguishment cases so slow to prepare that it would be necessary for a second identical claim to be lodged in order to obtain the benefit of disregarding any extinguishment over s 47B parcels.
1013		The claimants note that their solicitors wrote to the State on 8 September 2012, requesting copies of all tenure documents relating to the purchase or surrender of Thundelarra, Warriedar, Lakeside and Burnabinmah stations as at the date of the Badimia # 2 claim, as well as details of any other pastoral leases purchased or surrendered to any entity or department of the Crown.  They say the State indicated on 9 September 2012 that it was not in a position to provide these tenure documents and sought clarification as to whether the claimants intended to reduce the claim area.  The claimants observe that the State informed the Court that it did not intend to undertake a further tenure analysis unless required to do so, and that if the Badimia # 2 claim was reduced to only a small number of stations, then tenure work could be completed in a relatively reasonable period of time.
1014		In Banjima, the State similarly submitted that ss 47A and 47B NTA could not apply to two overlapping claims brought by the same or some of the same claimants, covering the same areas.  At [1141], I recognised that the two later overlapping claims were filed for the purposes of invoking ss 47A and 47B, but did not accept that this amounted to an abuse of process, as contended for by the State.  I observed that there was no suggestion in Rubibi Community v State of Western Australia (No 4) [2004] FCA 1019; (2004) 138 FCR 536 or Kogolo that filing claims in order to take advantage of those provisions was an abuse of process.  See Rubibi (No 4) at [4]-[6] and Kogolo. 
1015		In this case, the filing of the later claim in Badimia # 2 was clearly designed to take advantage of the operation of ss 47, 47A and 47B NTA.  Consistent with the decision in Banjima, I do not accept that this amounted to an abuse of process, particularly as only one of the claims will be able to obtain registration pursuant to s 190C NTA.  This is not a case, as suggested in the State’s hypothetical, where the claimants have submitted “repeated, unending, overlapping claims” that might otherwise amount to an abuse of process. 
1016		Consistent with what was said by the Full Court in Alyawarr FC, the purpose of ss 47, 47A and 47B NTA is beneficial.  In Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 at [122], Olney J accepted that the effect of s 47B is to “mitigat[e] some of the consequences of acts which have otherwise extinguished native title”.
1017		Likewise, the Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) described s 47B as “a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the court”.
1018		In my view, the Badimia # 2 claim should not be dismissed.  
1019		I accept the claimants’ submission that most of the information regarding disregarding extinguishment has already been provided.  Nonetheless, it is clear that the State did not address the application of s 47B to several specific parcels of land that became UCL in the period between the filing of the initial Badimia application and the Badimia # 2 claim, particularly Thundelarra Station, Warriedar Station, Burnabinmah Station, Lakeside and Lake Austin Stations, and Wondinong Station.  
1020		But for the finding above that the claimants have not proved native title exists, it would have been appropriate to allow the State to file further responsive evidence in relation to these stations at the time of the Badimia # 2 application. 
WHETHER EXTINGUISHMENT IS TO BE DISREGARDED
Section 47 
1021		Section 47 NTA provides as follows:
47 Pastoral leases held by native title claimants
When section applies
(1)	This section applies if:
(a)	an application under section 61 is made in relation to an area; and
(b)	when the application is made, a pastoral lease is held over the area by:
(i)	any of the persons who made the application claiming to hold the native title or any other persons with whom they claimed to hold the title; or
(ii)	a trustee, on trust for any of those persons; or
(iii)	a company whose only shareholders are any of those persons.

Prior extinguishment to be disregarded
(2)	For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests by any of the following acts must be disregarded:
(a)	the grant of the lease itself;
(b)	the creation of any other interest itself in relation to the area;
(c)	the doing of any act under the lease or by virtue of holding the interest.
Note:          The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Ninghan Station
1022		The claimants submit that Leah Bell, a Badimia claimant, holds the pastoral lease to Ninghan Station, which she applied to buy in 1993.  Ninghan Station is located in the south of the Badimia claim area near Lake Moore. 
1023		They refer to Ms Bell’s evidence that she worked with her family on Ninghan Station for Lindsey McPherson when her children were young.  She stated that they now also use the property to run farm stays and provide camping accommodation, her children visit Ninghan Station during holidays and she passes on information about the land.  She gave evidence that she checks on important sites on Ninghan Station, especially the sacred site Warrdagga, and she ensures that the graves and springs have not been disturbed.
1024		Ashley Bell gave evidence that he travels through and looks after the whole Ninghan Station area, as well as areas to the north.  He said that he goes camping on the station with his son and grandchildren, as well as looking after the Warrdagga area, which is a significant site for his family and all Badimia people. 
1025		The State submits the claimants have not addressed any of the requirements of s 47, and they appear to set out “occupation” evidence, which is not relevant to s 47.
1026		In any event, the State submits that s 47 NTA does not apply to Ninghan Station, as Ms Bell never held pastoral lease 3114/0602; instead the Pindiddy Aboriginal Corporation held the lease at the time the initial Badimia claim was lodged and is the current leaseholder.  
1027		The State submits that s 47(1)(b)(i) NTA does not apply, as the pastoral lease was held by a corporation and not a natural person.  For the avoidance of doubt, the State submits that while some members of the Pindiddy Aboriginal Corporation are persons who made the Badimia application, this does not lead to a conclusion that s 47(1)(b)(i) applies. It says the proper interpretation of s 47(1)(b)(i) is that it takes effect only where the relevant pastoral lease is held by natural persons and not a corporation, as the situation where a corporation holds the pastoral lease is covered by s 47(1)(b)(iii).  The State submits s 47(1)(b)(i) should be interpreted as requiring all of the natural persons who own the relevant pastoral lease to be members of the claim group, otherwise s 47 would effect a dispossession of any non-claimant owners.  
1028		Further, the State contends there is no evidence that the Pindiddy Aboriginal Corporation held the lease on trust for any person and so s 47(1)(b)(ii) does not apply.
1029		It also submits that the claimants have not led any evidence as to the membership of the Pindiddy Aboriginal Corporation and so the claimants have failed to demonstrate the application of s 47(1)(b)(iii) NTA to the pastoral lease.  It submits the affidavit of Ms Lealiifano demonstrates that not all shareholders of the Pindiddy Aboriginal Corporation are persons who made the Badimia claim. It notes that as at 2007, the members of the Pindiddy Aboriginal Corporation included Donald Bell (a non-Aboriginal man) and Vicki Outram (who does not appear in the claimants’ genealogies).  While this information was not current as at 4 October 1996, it submits no inference can be drawn that when the Badimia claim was lodged, all members of the Pindiddy Aboriginal Corporation were members of the Badimia claim.
1030		I accept the State’s submission that s 47(1)(b)(i) only applies where a pastoral lease is held by a natural person and not a corporation.  On the evidence, the pastoral lease for Ninghan Station is held by the Pindiddy Aboriginal Corporation, rather than Leah Bell.  As such, s 47(1)(b)(i) does not apply.
1031		The claimants appear to have relied on their assertion that Leah Bell held the pastoral lease for Ninghan Station and therefore did not address the application of s 47(1)(b)(ii) or (b)(iii) in their submissions.  
1032		On the evidence, I am not satisfied that s 47(1)(b)(ii) or (b)(iii) apply to this lease.  I accept the State’s submission that there is no evidence that the Pindiddy Aboriginal Corporation held the lease on trust for any person or that all of its shareholders are members of the native title claim group.  
1033		In reaching this decision, I accept that s 47 should be construed beneficially.  I note that in Anaconda Nickel Ltd v Western Australia [2000] NNTTA 366; (2000) 165 FLR 116 at [186], it was accepted that a company established for charitable purposes to further the economic and social development of Aboriginal people held a pastoral lease on trust for native title claimants.   Yet, in this case no evidence has been presented to establish that the Pindiddy Aboriginal Corporation held the pastoral lease on trust for the claimants and I am unable to make such a finding. 
Section 47A – Reserves covered by claimants’ application
1034		Section 47A NTA applies in circumstances where:
(a)	a claimant application is made in relation to an area; and 
(b)	when the application is made: 
(i)	a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or 
(ii)	the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and 
(c)	when the application is made, one or more members of the native title claim group occupy the area.
1035		If the conditions in s 47A(1) NTA have been met, s 47A(2) applies to require the disregarding of any extinguishment of native title in the relevant area.
1036		In assessing whether an area is “occupied” by one or more members of the claim group for the purposes of ss 47A and 47B NTA, the Full Court in Moses at [210] held that this is a factual inquiry that must be considered in the context of each individual case.  It adopted the following general approach to occupation evidence at [215]:
·	to occupy an area involves the exercise of some physical activity or activities in relation to the area;
·	to occupy an area does not require the performance of an activity or activities on every part of the land;
·	to occupy an area does not necessarily involve consistently or repeatedly performing the activity or activities over part of the area;
·	to occupy an area does not require constant performance of the activity or activities over parts of the area and it is possible to conclude that an area is occupied where there are spasmodic or occasional physical activities carried on over the area;
·	to occupy an area at a particular time does not necessarily require contemporaneous activity on the area at the particular time and it is possible to conclude that an area is occupied in circumstances where at the time the application is made there is no immediate contemporaneous activity being carried on in the area;
·	the fact of occupation does not necessarily entail a frequent physical presence in the area; for example, a storage of sacred objects on the area or the holding from time to time of traditional ceremonies may constitute occupation;
·	evidence to establish occupation need not necessarily be confined to evidence of activities occurring on the particular area and it may be possible to establish that a particular area is occupied by reference to occupation of a wider area which includes the particular area;
·	occupation need not be “traditional”; and
·	whether occupation has been made out is always a question of fact and degree.   
Paynes Find Aboriginal Reserve
1037		The claimants submit that extinguishment should be disregarded in respect of the Paynes Find Aboriginal Reserve, which is located close to the Paynes Find township on the west of the Great Northern Highway.  They say at the time of the initial Badimia application and Badimia # 2 application, one or more members of the claim group occupied the reserve area.
1038		The claimants refer to Des Thompson’s evidence about big camps at Paynes Find where Ms C George had lived with her family.  He said he had previously worked in the area and gave evidence that his family still camps there sometimes.
1039		Ashley Bell gave evidence that Paynes Find was important to him because his mother was born there and he takes his grandchildren there.  He said that Beverly Slater goes to Goodingnow Station, near Paynes Find, and cleans out rockholes.
1040		Joan Walsh gave evidence that her mother had grown up and gone to school in Paynes Find and when she was 16 years old, she had worked at a hotel at Paynes Find.  During that time she began collecting bush tucker and felt like she was home. She gave evidence about having spent time at the old reserve at Paynes Find and said “that was a good place”.  Joan Walsh also recently collected bush medicine from Ninghan Station near Paynes Find.
1041		Percy Lawson gave evidence that the Badimia apical ancestor Ninghan Freddie was buried near Salt Lake Spring, near Paynes Find and had taken his children and grandchildren to the grave site and other graves nearby.
1042		Coral Brockman gave evidence that her mother took her all around Paynes Find when she was a child because her mother was a custodian of the area. She said she lived in Paynes Find in the 1960s and 1970s, when her parents worked on stations in the area.  Ms Brockman stated that she has gone to Paynes Find every Easter since 1969 and many of her family have accompanied her on those trips, including her children.  In 2009, 62 members of her family joined her and in 2010, there were 67 family members.  Ms Brockman said she camps with her grandchildren at Paynes Find and teaches them how to hunt and checks on sacred sites.  She said of all the areas in Badimia country, she has the deepest knowledge of Paynes Find and she gets her food and medicine from this area.   She gave evidence that she feels she has a right to speak about Paynes Find because she maintains a link with the area and genuinely cares about the land.
1043		Roderick Hedlam gave evidence about a trip he took to Paynes Find with Ted Fogarty in 2009.  He said they camped there for a couple of months, visiting the places his mother used to camp, such as Salt Creek, and looking for sugar brother gum.  Mr Hedlam also said he travels to these areas when his son visits him in Mount Magnet.
1044		Beverly Slater gave evidence that she spent some of her early years at Paynes Find and started school there.  She said once her family moved away they would come back at least once or twice a year to visit family and attend funerals.  Ms Slater gave evidence that when she goes out on country these days she visits the area around Paynes Find, and that she visits the area about once a month and attended a family reunion in Paynes Find in 2010.
1045		The State notes that the claimants have not identified the specific reserve number involved and reserve 21187 is the only “Aboriginal reserve” near Paynes Find, but is located north of Paynes Find and east (not west) of the Great Northern Highway. 
1046		Reserve 21187 was set aside pursuant to s 39 Land Act 1898 for the purpose of “Aborigines” by notice published in the Gazette on 2 March 1934.  The purpose of the reserve was later amended to “community welfare purposes” in 1972 and “use and benefit of Aboriginal inhabitants” in 1986.
1047		The State submits the Court cannot presume that the claimants’ reference to Paynes Find is a reference to reserve 21187.  Yet to the extent it is, it accepts that the area of reserve 21187 was “held expressly for the benefit of, or is held on trust, or reserved expressly for the benefit of Aboriginal peoples” at the time the initial Badimia native title claim was made, thus satisfying s 47A(1)(b)(ii) NTA.
1048		The State disputes that the claimants have provided sufficient “occupation” evidence for the purpose of s 47A(1)(c) NTA.
1049		It says the evidence of Des Thompson does not identify when or where the camps at Paynes Find occurred, two of the instances pre-date the claim by many decades and the only other instance is a present one, neither of which is relevant to s 47A(1)(c).
1050		The State notes that Ashley Bell said the area of Paynes Find he was referring to is “on a mining lease and is about to get mined soon”.  As the tenure DVD does not indicate a mining lease covering reserve 21187, it submits that Ashley Bell must be referring to another place.  Further, it says reserve 21187 is some distance away from Goodingnow Station, so the occasional visits to Goodingnow Station by Beverly Slater cannot constitute “occupation” for the purpose of s 47A(1)(c).
1051		The State says that Joan Walsh’s evidence that her mother grew up and went to school in Paynes Find relates to a period in the 1920s or 1930s and not 1996, when the Badimia claim was made.  In respect of Ms Walsh’s evidence that she once visited a place called the “old reserve”, it submits it is not clear where that is, when it occurred and one visit does not constitute occupation.  Further, the State says that reserve 21187 is not on Ninghan Station and is some distance away from her collection of bush medicine, which occurred after the Badimia claim was made.
1052		In respect of Percy Lawson’s evidence that Ninghan Freddie was buried near Salt Lake Spring on the Paynes Find side, the State submits that Salt Lake Spring is over 50 kilometres away from reserve 21187 and it is not apparent how this can establish “occupation”.
1053		The State submits that the reference in Coral Brockman’s evidence to the area of which her mother was a custodian was a reference to Mount Magnet and Paynes Find, and such visits pre-dated the making of the Badimia claim by some decades.  It says that Ms Brockman’s references to living in Paynes Find in the late 1960s and early 1970s are also irrelevant and prima facie references to the town of Paynes Find, rather than reserve 21187.  It submits that her evidence of Easter visits to Paynes Find, Goodingnow Station and Mount Magnet does not refer to reserve 21187 or any other Aboriginal reserve.  In the State’s submission, a general reference to doing things in the Paynes Find area does not demonstrate “occupation” and Ms Brockman’s evidence of taking her grandchildren out to Paynes Find and Mount Magnet is clearly recent and not at the date the Badimia claim was made.
1054		In relation to Roderick Hedlam’s evidence, the State says the precise location of Salt Creek is unclear and it is not clear whether this is the same area as Salt Lake Spring referred to by Mr Lawson, which is not near Paynes Find.  In any event, it submits that one visit in 2011 does not establish “occupation”.
1055		The State submits that Beverly Slater’s evidence that she attended school in Paynes Find and lived in town for a short period in the 1960s is not relevant to “occupation” of reserve 21187.  It says that her evidence of attending a family reunion in 2010 at Paynes Find and visiting Goodingnow Station, Ninghan Station and Paynes Find about once a month is also not relevant to establishing occupation of reserve 21187.
1056		For these reasons, the State submits that the Court should find that s 47A does not apply to reserve 21187.
1057		In the absence of a specific reserve number, it is difficult to determine which reserve the claimants are referring to for the purpose of s 47A.  I accept the State’s submission that reserve 21187, which is the only “Aboriginal reserve” near Paynes Find, must be the relevant reserve and that this reserve was held expressly for the benefit of Aboriginal peoples for the purpose of s 47A(1)(b)(ii).
1058		Much of the claimants’ evidence relates to areas that are located some distance away from reserve 21187, and are therefore not directly relevant to this reserve, such as the evidence of Beverly Slater’s visits to Goodingnow Station, Joan Walsh’s evidence of collecting bush medicine from Ninghan Station, and Percy Lawson’s evidence that the Badimia apical ancestor Ninghan Freddie was buried near Salt Lake Spring, near Paynes Find.
1059		In respect of Des Thompson’s evidence, I accept the State’s submission that it is not clear where the camping occurred and that two of the examples pre-date the application by a number of decades.
1060		While I note that Paynes Find is important to Ashley Bell because his mother was born there and he takes his grandchildren there, I am left in some doubt as to whether he is referring to reserve 21187 in particular, as there is no mining lease covering this reserve. 
1061		In respect of Joan Walsh’s evidence, I accept that much of this evidence relates to a period in the 1920s or 1930s and is not necessarily relevant to the occupation of the area at the time of the Badimia and Badimia # 2 claims. 
1062		Coral Brockman’s evidence is the most relevant to the question of occupation of Paynes Find and her evidence suggests she maintains a link with this area through visiting and camping at Paynes Find with her grandchildren, hunting, checking sites and collecting food and medicine.  Yet some of this evidence relates to activities that pre-date the Badimia claim by several decades and it is not entirely clear whether the general references to activities conducted in the Paynes Find area relate to reserve 21187 in particular. 
1063		Likewise, it is difficult to determine whether Roderick Hedlam’s visit to Paynes Find with Ted Fogarty in 2009 coincided with the area of reserve 21187.
1064		Much of Beverly Slater’s evidence about her early years at Paynes Find is not directly relevant to the occupation of the area at the time of the Badimia and Badimia # 2 applications.  Further, it is not entirely clear whether her visits to the Paynes Find area are visits to the area of reserve 21187.
1065		While the claimants refer to evidence of visiting and carrying out activities in the Paynes Find area, much of this evidence is of a general nature, some relates to activities which occurred a number of decades before the applications were made and it is not entirely clear whether this evidence coincides with the area of reserve 21187.  On the balance of probabilities, I am not satisfied that this evidence establishes occupation of the area.
1066		For these reasons, I find that s 47A does not apply to the area of reserve 21187.
Mount Magnet Aboriginal Reserves
1067		The claimants submit that there are a number of Aboriginal reserves around the town of Mount Magnet to which s 47A applies, which Badimia people continue to visit.  They note that Dr Choo’s further report discusses the establishment of Aboriginal reserves around Mount Magnet.
1068		The claimants contend that many witnesses gave evidence about their activities and occupation of places around Mount Magnet, including Des Thompson, Ron Bandy and Joan Walsh.   Witnesses said they regularly go hunting, camping and picnicking around the vicinity of the town.
1069		The State submits the claimants have not identified the number of reserves, their location or their reserve numbers.  It notes that the reserves listed in Dr Choo’s further report do not match any known current or historical reserves.  
1070		The State says there are only two Aboriginal reserves in Mount Magnet: reserve 24431 and reserve 41626.  It accepts that the area of these leases was “held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of Aboriginal people” at the time the Badimia application was made, under s 47A(1)(b)(ii) NTA.
1071		The State contends that there is no evidence these reserves were “occupied”, as required by s 47A(1)(c) NTA.
1072		In relation to the witness evidence, the State says the effect of the evidence is as follows:
Des Thompson has, from time to time, lived in the town of Mount Magnet; Ron Bandy visits unidentified burial grounds out of Mount Magnet; and that Joan Walsh has in the past four years run a tourist business which visits the Granites north of Mount Magnet (Reserves 24431 and 41626 are located at the southern end of Mount Magnet).
1073		It submits that this evidence does not establish occupation for the purpose of s 47A(1)(c) NTA.
1074		As the State notes, the claimants have not identified the relevant reserves around the town of Mount Magnet with any specificity, which makes it difficult to determine whether the criteria in s 47A NTA are satisfied.  
1075		The State proceeded on the basis that the claimants must have been referring to two Aboriginal reserves in Mount Magnet: reserve 24431 and reserve 41626, which it accepts were held for the benefit of Aboriginal people for the purpose of s 47A(1)(b)(ii) NTA.  In the absence of evidence from the claimants particularising any further reserves around the town of Mount Magnet, I find that reserves 24431 and 41626 must be the relevant reserves referred to.
1076		I generally accept the State’s submissions regarding the characterisation of the witness evidence and sufficiency of occupation evidence in respect of these reserves.  The claimants’ evidence relates to activities and occupation of places around Mount Magnet, yet it is not entirely clear that this evidence relates to the two reserves 24431 and 41626 in particular, or any other Aboriginal reserves in Mount Magnet generally.  As a matter of fact and degree, I am not satisfied on the balance of probabilities that the evidence of Des Thompson, Ron Bandy and Joan Walsh, expressed at such a high level of generality, is sufficient to amount to occupation.  I am also not satisfied that it involves the assertion being established over the area of the two reserves in the relevant sense.  
1077		In the circumstances, I find that s 47A does not apply to reserves 24431 and 41626.
Section 47B – Vacant Crown land covered by claimant application
1078		Section 47B NTA provides:
47B  Vacant Crown land covered by claimant applications

When section applies

(1)  	This section applies if:
(a)  	a claimant application is made in relation to an area; and
(b)  	when the application is made, the area is not:
(i)  	covered by a freehold estate or a lease; or
(ii)  	covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii)  	subject to a resumption process (see paragraph (5)(b)); and
(c)  	when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

(2)  	For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

Note:	The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

1079		At the outset, the State says the claimants’ submissions have not specified the particular locations to which s 47B is asserted to apply and it is “grossly insufficient” to simply assert that there are large areas of UCL in the claim area to which s 47B may potentially apply.  It contends this makes it difficult for the Court to identify the locations in respect of which the criteria in s 47B(1)(b) and (c) are to be considered.  
1080		The State says that it is for the claimants to determine which areas satisfy s 47B and they had all necessary data in the tenure DVD and tenure affidavits to complete this task.  In the State’s submission, the Court should therefore find that the claimants have failed to demonstrate the application of s 47B to any area within the claim area.
1081		It is regrettable that the claimants have not identified the areas to which s 47B is asserted to apply in any great detail.  As the State observes, this lack of precision makes it difficult for the Court and other parties to identify the locations in respect of which the criteria in s 47B(1)(b) and (c) must be considered.  The onus ultimately rests on the claimants to determine the areas to which s 47B is asserted to apply.  
1082		While the claimants’ submissions regarding s 47B lack relevant detail, I am not satisfied that the Court should make a general finding that the claimants have failed to demonstrate that s 47B applies to any area in the claim area. Instead, I will consider the application of s 47B to each area raised in the claimants’ submissions. 
Thundelarra, Warriedar, Burnabinmah, Lakeside and Lake Austin Stations
1083		The claimants assert that Thundelarra, Warriedar and Burnabinmah stations have all become UCL since the initial Badimia claim was lodged, as well as portions of Lakeside and Lake Austin Stations.  They rely on witness evidence to show that members of the claim group occupied the area at the date of the application.
1084		The State submits that these areas were covered by a lease or other reservation, proclamation, dedication, condition, permission or authority at the date the initial Badimia application was made, meaning that s 47B cannot apply to these areas in respect of the initial Badimia application.  It acknowledges that these areas have become UCL since 4 October 1996, but says no tenure evidence has been prepared regarding the application of s 47B at the date of the Badimia # 2 claim.   
1085		In light of my finding that the Badimia # 2 claim should not be dismissed, and but for the finding above that the claimants have not proved native title exists, I would have given the State leave to file further evidence, if required, regarding the application of s 47B to these areas at the date of the Badimia # 2 application.  However, for the reasons below, I am not satisfied s 47B applies here as claimed.
UCL East of Kirkalocka Station
1086		The claimants submit there appears to be a large UCL block east of Kirkalocka Station.  They note that the Court heard evidence at Chewar Rockhole on Kirkalocka Station in November 2010 and that Ollie George took the Court to the top of Chewar Rockhole and pointed out many sites in all directions.  Ollie George gave evidence that he frequently visits Kirkalocka Station and surrounding areas.
1087		The State submits that the evidence of “occupation” is insufficient.  It estimates that Chewar Rockhole is 23 kilometres from the nearest corner of the block of UCL to which the claimants appear to be referring, and this area is not on Kirkalocka Station.  It says Ollie George pointed to sites to the north, south and south-east of the rockhole relating to Kirkalocka Station and none of the sites referred to are in the vicinity of the UCL which is north-east of Chewar Rockhole.  In the State’s submission, the claimants have pointed to no evidence to demonstrate that Mr George or any other member of the claimant group has ever visited the UCL in question.
1088		I accept the factual circumstances described by the State and am not satisfied that the claimants have provided sufficient evidence regarding occupation of the UCL.  I am left uncertain as to whether any member of the claim group has ever visited this UCL or carried out any relevant use or activity in this area.  Accordingly, I find that s 47B does not apply to the UCL east of Kirkalocka Station.
Lake Moore
1089		The claimants contend that Lake Moore is currently UCL and s 47B should apply to disregard any extinguishment. 
1090		In respect of occupation of this area, they refer to Darryl Fogarty’s evidence that he has been handed down the custodial right to speak for, and the responsibility to protect, the Lake Moore area.  He said that he, his brother and others, such as Ashley Bell, look after Lake Moore and other places connected to it.  Further, Darryl Fogarty stated that he used to work in the Mardarburdah Hill region, on the eastern side of Lake Moore, and knows about soaks in this area.  In a 2010 statement, he said he worked on Mouroubra Station, east of Lake Moore, as a child and used to camp out there.  He gave evidence that he is familiar with a hide-out on the edge of the lake and has camped at Goodingnow Station, near the northern tip of Lake Moore, with Billy Barlow.
1091		Coral Brockman gave evidence that she believes her great-grandmother handed down custodial responsibilities for the Lake Moore area to her and the whole Lake Moore area is of special importance to the Badimia people and her family.  She said it is rich with traditional Badimia food, medicines and has sacred sites.  She stated that she visits the area every year and has camped at Goodingnow Station every Easter since 1969 and is often accompanied by her family. When she is there, she said she looks after the sacred sites around Lake Moore, hunts for bush tucker and traditional medicine, and teaches young people how to catch goannas, kangaroos and emus.
1092		 Beverly Slater gave evidence that her grandfather was born on Goodingnow Station, near Lake Moore, and had special custodial roles regarding traditional law and significant sites.  She said her mother grew up on Goodingnow Station and she was born there and lived there for her first two years.  Ms Slater stated that she has taken all her children out to Goodingnow Station and continues to do so as often as she can, visiting about once a month.  She noted that one of the first things she does is to check that the waterfall at Goodingnow Station is clean and well-maintained, as this is a sacred site and a special place, and every time she visits she throws sand in and talks to the Bimara.  She provided details of a camping trip she took about five years ago at Goodingnow Station.  She said she had brought a property to enable her to be “closer to my home at Goodingnow” and she hopes to move back there permanently.
1093		The State submits that portions of Lake Moore were covered by exploration licences E5900525 and E5900623 granted under the Mining Act 1978 at the date the initial Badimia application was made.  It contends these exploration licences were a reservation, proclamation, dedication, condition, permission or authority for “public purposes or for a particular purpose” under s 47B(1)(b)(ii) NTA.  Accordingly, to the extent Lake Moore is covered by these exploration licences, the State says s 47B NTA has no operation. 
1094		In relation to the evidence of occupation, the State says there is no evidence that any member of the claimant group has ever set foot on Lake Moore, whether at the time the claim was lodged or at any time before or since.  It submits that the authorities make clear that physical presence (and more than visitation) is necessary to establish occupation for the purpose of s 47B NTA and physical presence must relate to the whole, rather than merely part of the area to which s 47B applies: see Rubibi (No 7) at [72].
1095		In relation to Darryl Fogarty’s evidence that he worked at Mouroubra Station to the east of Lake Moore as a child, the State observes there is no evidence he has been there since.  Likewise, the State contends that Mr Fogarty’s evidence that he camped at Goodingnow Station with Billy Barlow must be a reference to a time several decades before 1996, given that Mr Barlow was an elderly man in the 1960s.  It states that this evidence does not assist in relation to “occupation” of Lake Moore at the date of the Badimia application, and in any event, Mr Fogarty’s evidence was that he had not been to Kunturu on Lake Moore and there is no evidence he has ever set foot on Lake Moore.
1096		The State submits that Coral Brockman’s evidence relates to Ninghan and Goodingnow Stations and not Lake Moore itself.
1097		Likewise, it contends that Beverly Slater’s evidence relates to Goodingnow Station and not Lake Moore.  In any event, it submits her evidence relates to events some decades before the making of the Badimia application, which is not relevant to s 47B(1)(c) NTA.
1098		On this basis, the State submits the Court cannot find that s 47B NTA applies to Lake Moore.
1099		In relation to the State’s submission that portions of Lake Moore were covered by exploration licences granted under the Mining Act 1978 and s 47B cannot apply to any area covered by these interests, I considered this issue in Banjima.    At [1207], I found that the grants of prospecting licences and exploration licences, when read with the relevant provisions of the Mining Act 1978, facilitate an activity on land for stated purposes, but do not specify how land “is to be used”.  Accordingly, I did not accept that the land covered by the prospecting licences and exploration licences was made exempt from the application of s 47B.
1100		The same result should apply in this case, as the exploration licences were also granted under the Mining Act 1978 and had the same operation.  Accordingly, the area of Lake Moore covered by the exploration licences is not exempt from the operation of s 47B.
1101		In relation to the question of occupation, I do not accept the State’s submission that physical presence must relate to the whole, rather than part of the area.  In Moses at [215], the Full Court indicated that occupation of an area does not require the performance of a physical activity or activities on every part of the land, and it may be possible to establish that an area is occupied by reference to a wider area which includes the particular area.
1102		I consider that Darryl Fogarty’s evidence that he, his brother and others look after Lake Moore and other places connected to it, while relevant to the claimants’ connection with the area, does not provide the level of detail regarding activities conducted in the area to establish occupation.  Further, it is not clear that he has been back to Mouroubra Station since working there as a child.  I also accept the submission that Mr Fogarty’s evidence of camping at Goodingnow Station with Billy Barlow must have been a reference to a time several decades before 1996.  
1103		I note Coral Brockman’s evidence that the whole Lake Moore area is of special importance to the Badimia people and her family, that she looks after sacred sites and hunts for bush tucker and traditional medicine around Lake Moore.  To the extent she refers to camping at Goodingnow Station, this is less relevant, as it does not relate to Lake Moore specifically.
1104		Much of Beverly Slater’s evidence likewise relates to camping and caring for country at Goodingnow Station, near Lake Moore, which is less relevant for the purpose of establishing occupation of Lake Moore.  To the extent her evidence relates to matters occurring some decades before the Badimia or Badimia # 2 applications were made, it is also less relevant in establishing occupation at material times.
1105		The evidence makes clear that the Badimia people regard Lake Moore as an area of special importance.  Nonetheless, I am not satisfied that the claimants’ evidence of looking after sites, hunting for food and collecting traditional medicine, is sufficient to establish that there has been occupation of the UCL at material times.  A number of the activities relate to Goodingnow Station, which is not specifically relevant to Lake Moore, and there is some doubt as to exactly when and where a number of the activities occurred.
1106		On this basis, I am not satisfied, as a matter of fact and degree, that the claimants have discharged their burden of proof.  I find that s 47B does not apply to Lake Moore.
Mongers Lake
1107		The claimants submit that Mongers Lake is currently UCL and s 47B should apply to disregard any extinguishment. 
1108		As to evidence of occupation, they note that Ashley Bell gave evidence that he has been camping at Salt Creek, near Mongers Lake, since he was a child and still takes his children out there about six times every year.   He said he cleans out a rockhole at Mongers Lake which sometimes gets filled in by graders and explained that this is his responsibility because he lives in the area and is responsible for passing knowledge to his son.
1109		Percy Lawson said he goes to Mongers Lake with his wife and children to cook food, check and clean waterholes.  He also gave evidence about the location of Ninghan Billy’s grave at Mongers Lake, which he said he found in 2010 when he was grading the road in that area.  Mr Lawson said that protecting the grave is “one of my aims”.
1110		The State submits that portions of Mongers Lake were covered by exploration licences E5900495, E5900496 and E5900499 and mining lease M5900302 granted under the Mining Act 1978 at the date the Badimia application was made.  To the extent the area is covered by these exploration licences and mining lease, the State says s 47B has no application.
1111		In relation to evidence of occupation, the State submits that Ashley Bell’s evidence of camping at Salt Creek does not necessarily indicate camping occurring at or around 1996.  It says it is unclear where Salt Creek is located and it is unlikely Salt Creek is within the area of Mongers Lake as that area only consists of the lake bed itself.  Further, it submits there is no evidence of the location of the rockhole at Mongers Lake that Mr Bell refers to, but the inference is that it is located on a road, rather than on a lake bed, given that it gets filled in by graders.
1112		The State accepts that Percy Lawson gave evidence of hunting, camping and cleaning waterholes, at least in the past few years, at Mongers Lake.  It submits these activities are unlikely to occur on the surface of the lake itself, as the tenure DVD describes Mongers Lake as “water”.
1113		For the reasons discussed above, the State’s submission regarding the application of s 47B to areas covered by exploration licences must be rejected.  Nonetheless, s 47B will have no operation in respect of any area covered by mining lease M5900302 at the time of the Badimia # 2 application. 
1114		As to evidence of occupation, the claimants have provided evidence of activities carried out in relation to the area of Mongers Lake, including Ashley Bell camping at Salt Creek and  cleaning out a rockhole at Mongers Lake and Percy Lawson cooking food, cleaning, checking waterholes and protecting Ninghan Billy’s grave at Mongers Lake. 
1115		I do not accept the State’s submission that the fact that activities could not have been carried out on the surface of the lake is relevant to this inquiry.  As the Full Court recognised in Moses at [215], to occupy an area does not require the performance of an activity or activities on every part of the land.
1116		In respect of Ashley Bell’s evidence, it is not entirely clear where Salt Creek is located and I am left quite uncertain about whether his evidence of camping relates to the area of Mongers Lake to which s 47B is alleged to apply.
1117		Percy Lawson’s evidence of activities carried out around Mongers Lake is more relevant in this regard.  Yet, it is still difficult in the circumstances to determine exactly when the visitations and activities he describes took place, the area to which they relate and the extent to which these activities involved the relevant assertion being established over the area of Mongers Lake.
1118		Mongers Lake is undoubtedly a place of significance for Mr Bell, Mr Lawson and the Badimia people, but I am not satisfied, as a matter of fact and degree, that there is sufficient evidence of occupation in the circumstances.  
1119		Accordingly, I find that s 47B does not apply to Mongers Lake.
Wondinong Station
1120		The claimants submit that it appears from the tenure documentation that Wondinong station is now UCL. 
1121		They refer to Ron Bandy’s evidence that he hunts kangaroos at Wynyangoo and Wondinong Stations.  He said once they have caught kangaroos, they cook them in the ground and he last did this about 12 months ago.  He explained that his grandfather taught him how to cook kangaroo and he has passed this information to his three oldest children.  
1122		Roderick Hedlam gave evidence that he camps at Yarraquin Station (north-west of Wondinong) and did some prospecting, looked for emu eggs and hunted kangaroos. 
1123		The State submits that Wondinong Station is not UCL.  It says the tenure DVD shows that as at 7 July 2011, the pastoral lease 3114/0404 was still current, meaning that s 47B NTA cannot apply to this area in respect of the initial Badimia application.  It did not otherwise address the application of s 47B to Wondinong Station.
1124		The State’s submissions do not address the status of Wondinong Station at the time the Badimia # 2 was made.  Accordingly, I would have given the State leave to file further responsive tenure evidence in relation to this area at the time of the Badimia # 2 application, but for the finding that the claimants have not proved native title exists.
1125		However, even if it were UCL, I am not satisfied occupation is made out on the claimants’ evidence.
UCL near Whitewells Station
1126		The claimants submit that there is a large portion of UCL in the south‑west corner of the Badimia claim area at Whitewells to which s 47B should apply. 
1127		As to occupation, they refer to Frank Walsh Jnr’s evidence that he can see the mulga country come in when he gets to Whitewells Station.
1128		Ashley Bell gave evidence that he has tried to get access to the conservation area, but feels he is not trusted by the managers.  He said he spends a lot of time cleaning out and checking on sites and rockholes in the south‑west of the claim area as much as he can gain access.
1129		The State says it appears that at least some of the various parcels of UCL near Whitewells Station were covered by exploration licence E7001546 granted under the Mining Act 1978 at the date of the initial Badimia application.  It submits this exploration licence was a reservation, proclamation, dedication, condition, permission or authority under s 47B(1)(b)(ii) and to the extent the area is covered by this exploration licence, s 47B has no operation.
1130		In relation to occupation, the State notes that Frank Walsh Jnr gave evidence that he, like many members of the public, has driven along the Great Northern Highway and noticed the change of vegetation out the window.  The State submits this is not evidence that he has ever set foot on parcels of UCL near Whitewells Station and on no sensible interpretation of s 47B NTA is this “occupation”.
1131		The State says it is clear from Mr Bell’s evidence that, he does not have access to relevant areas and this cannot be regarded as “occupation”.  The State contends that evidence of Mr Bell’s activities in the general south‑west portion of the claim area is insufficient to establish occupation of the area of UCL south of Whitewells Station.
1132		For the reasons discussed above, the State’s submissions regarding the application of s 47B(1)(b) to the exploration licence must be rejected. 
1133		Yet, I am not satisfied that the evidence is sufficient to establish occupation of the area in the relevant sense and generally accept the State’s submissions in this regard.
1134		While Frank Walsh Jnr and Ashley Bell gave evidence of noticing the change in vegetation around Whitewells Station and attempting to get access to the conservation at Whitewells Station, these types of passing visits and activities lack a possessory nature.  On the balance of probabilities, I am not satisfied that this evidence establishes occupation of the UCL near Whitewells Station.
Paynesville townsite
1135		The claimants submit that s 47B should apply to the Paynesville townsite. 
1136		They note that Roderick Hedlam gave evidence that he and his wife go prospecting and camping on Windsor Station near Paynesville and he often takes Ollie George out there with him.  He said they hunt for goannas and kangaroos and collect emu eggs.
1137		The State says it appears that at least some of the lots in this area were covered by prospecting licences P5800969 and P5800846 at the time the Badimia application was made.  The State repeats its submission that these licences were a reservation, proclamation, dedication, condition, permission or authority under s 47B(1)(b)(ii) and to the extent the area is covered by the prospecting licences, s 47B has no operation.
1138		The State says the claimants’ submissions contain no evidence of any member of the claimant group setting foot within the Paynesville townsite and Paynesville is not Windsor Station.  It submits the evidence of Roderick Hedlam does not establish where on Windsor Station he goes and is evidence of current practice, not practice at the date the Badimia application was lodged.
1139		The State’s submission regarding the application of s 47B(1)(b) to the prospecting licences is rejected for the reasons discussed above. 
1140		In the circumstances, I am not satisfied that the claimants’ evidence establishes occupation of the area.  I accept the State’s submission that there is no evidence of relevant uses or activities in the area of the Paynesville townsite and that activities that Mr Hedlam carried out on Windsor Station are not in Paynesville.  It is not clear on the evidence exactly where Mr Hedlam goes and when these activities occurred.  On the balance of probabilities I am not satisfied that there was any relevant occupation of the area.
Boogardie townsite
1141		The claimants submit that s 47B should apply to Boogardie townsite. 
1142		They observe that Alan Walsh gave evidence that Boogardie Station is one of the areas that is most special to him because it was his father’s country.  He said he still goes out on country to “look after the place” and “see [his] old people”. 
1143		Joan Walsh gave evidence about the Granites, which is near the former Boogardie homestead.  She said she used to run tourist tours to the Granites in 2008 and that she and her husband would collect bush tucker for the tourists and cook it in the traditional way.  Ms Walsh said it is an area where there are many “signs” in the paintings and she still goes to the area to collect bush medicine.
1144		Frank Walsh Jnr gave evidence that his elders took him camping at the Granites, showed him how to clean out rockholes, catch, clean and cook goannas, kangaroos and other bush tucker.  He said he learned how to use bush medicine trees to cure illness when he was there and it is a very special place.  He gave evidence that he still visits the area to look after rockholes, picnic and collect food such as goannas.
1145		Gloria Fogarty gave evidence about a little “wave rock” at the Granites, which she said Ollie George knew about too.  She explained that her grandparents first took her there and showed her rock art in the caves which they said was done by Badimia ancestors.  Ms Fogarty gave evidence about the location of paintings and springs.
1146		Olive Gibson said she takes children on school excursion to the Granites, shows them places and collects and cooks bush tucker.  She said it is “good to take them out and let them know what is out there”. 
1147		The State submits it appears that at least some, if not all, of the lots in this area were covered by mining leases M5800136, M5800149, M5800181, M5800191 and M5800205 and miscellaneous licence L5800021 at the time of the initial Badimia application.  It repeats its submission that these leases and licences were a reservation, proclamation, dedication, condition, permission or authority under s 47B(1)(b)(ii) and to the extent the area is covered by these leases and licences, s 47B has no operation.
1148		The State notes that Boogardie townsite is not on Boogardie Station; rather is a minesite located on the western outskirts of Mount Magnet.
1149		To the extent that Alan Walsh’s evidence implies that he currently visits Boogardie Station, the State says this is of no assistance in respect of “occupation” of the townsite.
1150		It submits the remainder of the claimants’ evidence relates to the Granites, which is some distance away on the other side of Mount Magnet and is of no assistance in establishing “occupation” of the Boogardie townsite.
1151		I generally accept the State’s submissions that there has not been any relevant occupation of Boogardie townsite.  While the claimants refer to evidence of occupation in relation to the Granites, this does not necessarily assist in establishing occupation of the Boogardie townsite, which is located some distance away.  I also accept the State’s submission that to the extent Alan Walsh’s evidence implies he visits Boogardie Station, this does not assist in establishing occupation of Boogardie townsite.  
1152		For these reasons, I am not satisfied on the evidence that the use and activities referred to are sufficient to amount to occupation.  In the circumstances, I find that s 47B does not apply.
Lennonville townsite
1153		The claimants submit that s 47B should apply to the Lennonville townsite.
1154		They note that Roderick Hedlam spoke of Lennonville as being “South of Wanarie” and the Walsh family gave extensive evidence about their activities and association with Wanarie Station north of Mount Magnet.
1155		The State contends it appears that at least some, if not all, of the lots in this area were covered by mining leases M5800042, M5800047 and M5800195 and prospecting licences P5801004 and P5800971 at the time of the Badimia application.  It repeats its submission that these leases and licences were a reservation, proclamation, dedication, condition, permission or authority under s 47B(1)(b)(ii) and to the extent the area is covered by these leases and licences, s 47B has no operation. 
1156		The State submits that Roderick Hedlam’s evidence points to nothing more than the fact that he knows the location of Lennonville and there is no suggestion he “occupied” the area at the relevant time.
1157		It says the Walsh family’s evidence does not provide evidence that they visit Lennonville, only that they have visited locations on Wanarie Station, which is described as north of Lennonville.  It notes that Lennonville is not on Wanarie Station.  The State submits there is no evidence of when the visits occurred, and in any event, mere visitation is not sufficient to establish occupation.
1158		The State’s submissions regarding the application of s 47B(1)(b) to the prospecting licences must be rejected.  
1159		Nonetheless, in any event, I am not satisfied that the claimants’ evidence is sufficient to establish occupation in the relevant sense.
1160		I generally accept the State’s submissions that Roderick Hedlam’s evidence only illustrates that he knew of the location of Lennonville and not necessarily that he occupied this area.  Further, while the Walsh family gave evidence about their activities and association with Wanarie Station, which is north of Lennonville, there is insufficient evidence of when the visits occurred and these visits do not appear to relate to Lennonville.  In the circumstances, while the activities and association with Wanarie Station are no doubt meaningful to the Walsh family, this evidence is not sufficient to establish occupation of the Lennonville townsite. 
1161		On this basis, I find that s 47B does not apply to the area.
CONCLUSION AND ORDERS
1162		For the reasons given above in relation to the connection issues, the application of the claimants in this proceeding should be dismissed.
1163		The Court will hear from the parties as to the terms of the orders that should now be made.
I certify that the preceding one thousand, one hundred and sixty three (1163) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.	

Associate:

Dated:	12 March 2015