Inferences that the Warrarn say amount to evidence of permission
290 The Warrarn submit that given the lack of direct evidence, the Court should rely on and draw inferences from subsequent evidence as to the import of what occurred in the granting of permission. They submit that the fact that rights and interests were sought to be exercised and have been afforded to the Warrarn in respect of the Overlap Area under the laws and customs of the local normative society are evidenced by:
(a) the participation of their predecessors in ceremonies in 1956 and 1980;
(b) the opening of a traditional Law ground at Strelley by persons including elders of their group in 1972/73;
(c) participating in the practice of traditional laws and traditional customs in the Ngarla Overlap Area;
(d) residing in the Area;
(e) being born in the Area;
(f) having personal spiritual connection to the Area;
(g) burying their ancestors in the Area;
(h) gaining knowledge of and looking after places of significance in the Area;
(i) gaining knowledge of resources in the Area;
(j) cutting trees in accordance with traditional law and custom for fashioning sacred objects for use in ceremonies;
(k) teaching children and young men and women how to hunt and prepare and collect bush foods and to observe and respect relationships and avoid dangerous places on the country in accordance with traditional law and custom and to become leaders in the Law;
(l) taking on responsibilities and being recognised as having status as leaders of the Law in respect of the Area;
(m) acceptance by the Ngarla of (a) to (l) above.
291 In respect of the activities listed by the Warrarn in [290] (a) to (l), the activities cited by the Warrarn seem to distinguish between "the Overlap Area" and "the Area". It is unclear whether "Area" refers to the Overlap Area, or to the De Grey River area, or to another area. The term "area" is used in the Warrarn submissions in both contexts. There is uncertainty as to which "area" the following evidence is being directed to, which may affect the relevance of the evidence to rights and permissions granted in respect of the Overlap Area.
292 The Warrarn rely on evidence not only from the members of the Warrarn applicant group but also on evidence from some of the Ngarla and Njamal people, in particular concerning the participation in the Law and Law ceremonies. They also point to the anthropological reports. The Ngarla do not dispute some of the matters, in particular the residence of the Warrarn in the general area and the participation by the Warrarn in Law ceremonies in the Pilbara. The Ngarla do not dispute the role of Monty Hale, Bruce Thomas and Lindsay Hardcase as senior men in the Law but say that their role is as senior men in the Pilbara who join in the communal Law ceremonies in the Pilbara region, including those in the Overlap Area; their role is not as owners of the land or as having rights over the land. They also say that while the Law ceremonies are conducted, broadly, together, there are some aspects that differ between the different language groups.
293 As to the 'participation of their predecessors in ceremonies in 1956 and 1980', the Warrarn rely on evidence from Lindsay Hardcase, Peter Toby, Monty Hale, Bruce Thomas, Joe Taylor and Mr O'Connor. The evidence supports the participation by certain members of the Warrarn and their ancestors in ceremonies at Strelley and at Warralong, although the evidence referred to by the Warrarn is not limited to specific years in every case.
294 As to the 'opening of a traditional Law ground by persons including elders of their group in 1972/73', the Warrarn rely on evidence from Lindsay Hardcase and Bruce Thomas, as well as Mr O'Connor's anthropological report. I note that this evidence does support the opening of Law at Strelley by Dooley Bin Bin. However, the evidence of Lindsay Hardcase is that Law at Strelley was opened by all of the Law men, with the permission of the Ngarla and Njamal.
295 As to 'participation in the practice of traditional laws and traditional customs in the Ngarla Overlap Area', the Warrarn rely on evidence from Lindsay Hardcase, Peter Toby, Elizabeth Bunwarrie, Kevin Fred, Maggie Ginger, Bruce Thomas, Joe Taylor, Monty Hale, Joe Coppin and John Bucknall. However, this evidence refers to the participation in Law at Strelley or at Warralong. Warralong and is not within the Overlap Area and the Ngarla and State submit that Strelley Law Ground is also not within the Overlap Area. It is not clear on this evidence whether the references to Strelley refer to the Strelley Law ground or to a part of Strelley Station that is within the Overlap Area.
296 The Warrarn say that Bruce Thomas said that the 'traditional owners' gave the Nyangumarta people, his father, grandfather and brother who are Mungala, the right to practise the Law and that Monty Hale said, in his highly restricted evidence which the parties agreed can be referred to in part, that 'he got the things he needed to practise the Law from Strelley Station and the people he had to ask to get those things were his brother, and his brother had to ask the old people: Tommy Muccan and Dooley Binbin, all of whom being Nyangumarta'.
297 As to 'being born in the Area', the Warrarn rely on the anthropological report of Mr O'Connor. Mr O'Connor's evidence is that babies have been born on Strelley. He names three: Alistair Williams, Rowena Ginger and Johnny Francis, none of whom are individuals named in the Warrarn Claim. Mr O'Connor also talks of a yinda site at Mikurrunya and the link that the child has with the yinda site. The Warrarn also note the example of Stephen Stewart who was born in Ngarla country and was incorporated into the Ngarla group.
298 As to 'residing in the Area', the Warrarn rely on the joint statement of Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger and evidence from John Bucknall, Bruce Thomas (who says that his father and grandfather lived at Strelley), Elizabeth Bunwarrie and May Thomas. This evidence supports residence in Strelley and Warralong Stations.
299 As to having 'personal spiritual connection to the Area', the Warrarn rely on the joint statement of Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger and evidence from Kevin Fred and Elizabeth Bunwarrie. The Warrarn also rely on the expert evidence and anthropological reports of Mr O'Connor, Dr Smith, Dr Brunton and Mr Robinson. This evidence primarily goes to the existence of yinda places, where spirit children await the opportunity to animate a foetus in a human womb. A person is associated with and has a spiritual connection with the location of his or her yinda. The Warrarn say that Mikurrunya is a yinda site, to which some of the Warrarn, such as Elizabeth Bunwarrie's daughter, are spiritually connected. Mr O'Connor's evidence is in respect of the yinda site at Mikurrunya and the link that the child has with the yinda site. Mr Robinson's opinion is that spiritual connection through conception exists in Western Desert systems. Dr Brunton's evidence is that, when asked "where is your country?", a person's response may be his or her place of birth, the camping places of the local group, or another specific place within the clan's territory. He says that it is not possible to say if this is related to his or her yinda. The evidence of Dr Smith to which the Warrarn refer concerns Charlie Coppin's daughter's connection with the snake totem due to conception, and also with Makanykarra by descent. Dr Smith also says that Radcliffe-Brown wrote about connection and conception. Presumably, the Warrarn rely on the similarity between the Ngarla and the Warrarn as to identity between land and conception.
300 As to 'burying their ancestors in the Area', the Warrarn rely on the evidence of Mr O'Connor in his anthropological report, the Strelley Cemetery Register of Burials and the evidence of Bruce Thomas and Elizabeth Bunwarrie. This evidence confirms that ancestors of the Warrarn were buried at Strelley Cemetery.
301 As to 'gaining knowledge of and looking after places of significance in the Area', the Warrarn rely on the evidence of:
Mr O'Connor, who described in his anthropological report the men's restricted site at Tabba Tabba Creek, the rainmaking ground, the Bagajimbari and Minyiburu storyline and Mikurrunya, and the Warrarn responsibility for particular objects and the care for particular sites. Some of this evidence will be discussed later in these reasons.
Warrarn witnesses, including Biddy Bunwarrie, Elizabeth Bunwarrie, Maggie Ginger, Kevin Fred, Monty Hale, Bruce Thomas and Crow Yougarla, who give evidence of particular sites of significance, the stories that relate to those sites and their knowledge of Law stories. Some of these witnesses give evidence of how knowledge of law and custom was attained. Maggie Ginger described traditional food and medicine.
Lindsay Hardcase, who gives evidence that as a leader in the Law, he has looked after important sites.
302 Further, the Warrarn refer to the evidence referred to below at [315] to [386] as to the common observance of traditional laws and customs relating to sites in the Overlap Area, specifically:
the oral evidence of Biddy Bunwarrie, Elizabeth Bunwarrie, Maggie Ginger and Bruce Thomas concerning the Minyiburu Site;
the gender restricted evidence of Monty Hale and Bruce Thomas at the Tabba Tabba Creek men's restricted site;
the evidence of Charlie Coppin (Ngarla) as to the amount of work required for the conduct of the Law;
the evidence of Maggie Ginger about the job of the women at Law time; and
the evidence of Doris Eaton (Njamal) who says, in reference to Law time, that 'we women have a job to do out there'. Doris Eaton also says that the Warrarn would be informed when Law time was on.
303 I will consider the evidence of knowledge of and care of sites within the Overlap Area below.
304 As to 'gaining knowledge of resources in the Area', the Warrarn rely on Dr Smith's anthropological report and the evidence of Biddy Bunwarrie, Elizabeth Bunwarrie, Kevin Fred, Maggie Ginger and Bruce Thomas. The Warrarn witnesses give evidence of their knowledge of traditional food and medicine. Kevin Fred and Bruce Thomas say that the food is collected from areas including the Overlap Area. Dr Smith refers to such knowledge of the Ngarla people, making no reference to the Warrarn.
305 As to 'cutting trees in accordance with traditional law and custom for fashioning sacred objects for use in ceremonies', the Warrarn rely on the evidence of Bruce Thomas, who says that sacred objects are collected from Tabba Tabba Creek, and speaks of his right to go into the country around Tabba Tabba and Strelley to make boomerangs and spears for hunting. His evidence does not refer specifically to "cutting trees" but this activity is likely to be a prerequisite to the making of boomerangs and spears.
306 As to teaching children and young men and women how to hunt, prepare and collect bush foods, observe, respect relationships and avoid dangerous places on the country in accordance with traditional law and custom and to become leaders in the Law, the Warrarn rely on evidence from Lindsay Hardcase, Kevin Fred, Bruce Thomas Elizabeth Bunwarrie, Biddie Bunwarrie, Maggie Ginger and Monty Hale. However, that evidence is directed to specific matters. Bruce Thomas gives evidence that young people are put through the Law and he says that the Warrarn have the right to hunt and get boomerangs. Kevin Fred gives evidence of working hard to bring the younger people through the Law. In their joint statement, Elizabeth Bunwarrie, Biddy Bunwarrie and Maggie Ginger say that the Warrarn look after country, protect special places and stop people from going to dangerous places. Monty Hale, Bruce Thomas and Kevin Fred describe how they help put Ngarla boys through the Law and help the Ngarla carry out the Law, and that they bring the young people up together. Lindsay Hardcase says that, as a leader in the Law, he looked after sites of importance and that the leaders teach the young people about the Law. He also says that he can get what he needs for ceremonies and bush tucker from the country, through the owner of the country.
307 As to 'taking on responsibilities and being recognised as having status as leaders of the Law in respect of the Area', the Warrarn point to evidence from:
Lindsay Hardcase, who says that he is a leader in the Law and describes his role and responsibilities as a leader in the Law. Mr Hardcase also says that Monty Hale and Kevin Fred are leaders in the Law.
Peter Toby (Martu), who says that the old people, such as Peter Coppin, Billy Thomas, Snowy Judamia, Joe Judamia and Mick Waynardu said that they worked together with the Ngarla and Njamal, and that they worked together to do the law at Kajarinya.
Joe Taylor (Njamal), who acknowledges that the leaders in the Law include Monty Hale.
Kevin Fred, who says that leaders of the Law at Warralong include himself, Bill Williams, Lindsay Hardcase, Bruce Thomas and Monty Hale.
Bruce Thomas, who says that the top Law men when he went through the Law were Snowy Judamia, Jacob Oberdoo, Dooley Bin Bin and Mick Waynardu. Mr Thomas says that the current leaders of the Law at Warralong include himself, Monty Hale, Kevin Fred and Lindsay Hardcase.
John Bucknall, who says that leadership in the Law was based not just on status, but also on personal attributes. Mr Bucknall says that the "ten men" organised and arranged the Law ceremonies at Strelley. The "ten men" included Jacob Oberdoo, Snowy Judamia, Crow Yougarla, Dooley Bin Bin, Joe Judamia, Toby Jones and Billy Thomas.
Monty Hale, who says that the old men Jacob (Winchukka), Dooley Bin Bin, Sandy Muccan and Tommy Muccan were present at the Black Range Law ground at Strelley.
Crow Yougarla, who says that Njamal elders who were responsible for the Law at Strelley and at Warralong transferred their rights and responsibilities in respect of the Law and their land to fourteen "Desert people" who were members of the Warrarn group.
Monty Hale, who says that when Law was run at Warralong 'last year', the men that ran the Law were Charlie Coppin, Stephen Stewart, Lindsay Hardcase and Joe Taylor. Monty Hale also describes Jacob Winjarrka as a trustee for Ernie Mitchell. However it is not clear whether Mr Hale was talking about Jacob Winjarrka as a trustee of land or about involvement in the Law. Even if land was involved, it was not the Overlap Area, as Ernie Mitchell, a Njamal man, was not the traditional owner of the Kajarinya area. Mr Hale acknowledges that he was not present at the meeting between Ernie Mitchell and Jacob Winjarrka and that Ernie Mitchell remained a senior Law boss until he passed away.
Bruce Thomas, who says that in order to decide when to have a Law ceremony and who should come through the Law, all the Law elders get together and take a vote.
The joint evidence of Monty Hale, Bruce Thomas and Kevin Fred, who say that they are senior men in the Law and that Law at Warralong happens by a process of consultation that includes them. They say that they work together with the Ngarla to bring the young people up together and through the Law.
Joe Taylor (Njamal), who says that he, Charlie Coppin and Lindsay Hardcase would take part in the decision about whether Law took place at Warralong and acknowledges that Dooley Bin Bin was 'one of the important blokes' when the Law was happening at Strelley.
The joint statement of Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger, who say that the "Business Girls" are Sally Mack, Margie Dean, Irene Roberts, Evelyn Mitchell, Doris Thomas, Biddy Thomas, Winnie Coppin, Alma Grey, Lucy Mitchell, Alice Mitchell, Maggie Ginger, Elizabeth Bunwarrie, Biddie Bunwarrie, May Chapman, Gladys Jack, Polly Jack, Mary Rowland, Susie Rowland, Jennifer Brady and Nancy Judamia.
Winnie Coppin (Nyangumarta), who says that the Business Girls include Biddy Bunwarrie, May Chapman, Gladys Jack (Nyangumarta), Polly Jack (Nyangumarta) and Nancy "Jutimaya" (Judamia, Wanman).
308 This evidence supports the fact that the members of the Warrarn are recognised as leaders in the Law.
309 As to acceptance by the Ngarla of the status and events involving the Warrarn referred to above, the Warrarn refer to the evidence of the non-Ngarla witnesses:
Bruce Thomas, who describes an 'agreement' with the Njamal where 'all the elders get together' and agreed to put 'this culture place' at Strelley and to 'bring our culture here' and says that Law ceremonies 'started up' when this agreement happened.
Lindsay Hardcase, who says that Billy Thomas, Joe Judamia, Snowy Judamia, Mick Wynardu, Jacob Oberdoo and Crow Yougarla were leaders in the Law at Strelley and that Monty Hale, Kevin Fred and Lindsay Hardcase are leaders in the Law now at Warralong.
Joe Taylor, who says that Charlie Coppin, himself and Lindsay Hardcase would take part in the decision about whether Law took place at Warralong and his acknowledgment that Dooley Bin Bin was 'one of the important blokes for Law'.
310 Further, the Warrarn point to the evidence of the particular permissions given at the Kajarinya, Strelley and Warralong Law grounds. This evidence is further described below.
Consideration
311 There is no dispute, and the evidence supports the fact, that members of the Warrarn are recognised as leaders in the Law in the Pilbara and that they participate in decisions about the conduct of the Law, to the extent that the ceremonies are jointly held.
312 It is not in dispute, and the evidence supports the fact, that members of the Warrarn live and have lived at Strelley, part of which is in the Overlap Area. There appears to be no real dispute, and the evidence supports the fact, that the Warrarn carry out at least some of the activities and practices in [290] (a) to (l) above. However, the extent of the Ngarla acceptance is relevant. The Ngarla and the State do not accept that these activities say anything about native title rights or interests under traditional laws and customs of the Ngarla.
313 Further, the Ngarla point out that the reason why the Warrarn have developed an association with the Overlap Area is the fact of their ownership of the Strelley pastoral lease, following on their migration from the Western Desert to the coastal regions. In those circumstances, the Ngarla say that it cannot be presumed that particular conduct is undertaken pursuant to a particular law or custom, let alone a traditional law or custom.
314 The Warrarn need to demonstrate that their practices and rights are part of the normative system of traditional law and customs. The observable behaviour referred to above does not alone demonstrate the rights and interests that are claimed by the Warrarn. Indeed, many of the observable behaviours are highly specific and would not permit a broader inference to be drawn in respect of the Warrarn and Ngarla generally.