Whether as a single group or sub-set the Wutha group hold possessory rights in the Trial Area (Question 2)
320 An understanding of the relevant pre-sovereignty circumstances should commence with the information given to Tindale by Telpha Ashwin in an interview conducted by Tindale in May 1939. Telpha is a central character in the identification of the Wutha group. The best available information suggests that Telpha was born in about 1887 at Wingara Soak located in the southern part of the Tail. Tindale interviewed Telpha when she was about 50 years of age. She was recorded by Tindale as a member of the "Pini tribe" (pronounced as "Binni" by some of the witnesses). With my own adaptation to Tindale's record (for ease of reference), Telpha described her tribal boundary as follows:
from Lorna Glen to Lake Carnegie taking in Wongawol (but not further north to Charles Wells Creek), along the line of lakes (southern boundary of Lake Carnegie) to Lake Wells and then west to Bonython Creek, then south west-ward to Mount Maiden (near Mulga Queen) and to Darlot then west to Yandal and north through Mount Gray Station, Mindi Hill and back to Lorna Glen.
321 The boundaries described by Telpha are broader than but encapsulate the entirety of the Tail. It is helpful to give a description which locates the Tail within those broader boundaries in the knowledge that, on a rough average, the distance between the southern and northern boundary of the Tail is about 120 kilometres and the distance between the eastern and western boundaries of the Tail is about 70 kilometres. The boundaries described by Telpha extend well beyond the Tail's northern and north eastern boundaries by some 40 to 80 kilometres. The north-eastern boundary of the territory described by Telpha tapers back towards the mid-eastern boundary of the Tail and then largely follows that boundary to Darlot, located beyond the southern tip of the Tail and south of Lake Darlot. To the north of Darlot, the area described by Telpha extends westward some 40 kilometres beyond the western boundary of the Tail, but from Mount Gray it tapers off as the boundary heads north past the north-western corner of the Tail and back to Lorna Glen.
322 None of the Body falls within the area described by Telpha. The closest point between that area and the Body is Darlot which is some 60 kilometres from the edge of north-eastern corner of the Body.
323 Telpha is the daughter of two of the apicals upon whom the applicant relies. Her father was Darugadi. There is some uncertainty as to who her mother was. Tindale identified her mother as Murni and her grandmother as Matjika. He recorded that Telpha was raised by her grandmother. However, Gay Harris deposed to her understanding that Matjika is the same person as Murni. She said that she was very sure that the two names were names for the one person, and that the person was her grandmother. It is not essential to resolve that conflict in the evidence. I will assume, however, that Gay Harris is correct and that Murni and Matjika are two names for the woman who was Durugadi's affine and the mother of Telpha and her brother Jumbo Harris. I will refer to her as Murni/Matjika in my reasons going forward. It is accepted by each of the expert anthropologists and all of the parties that the members of the Darugadi ancestral family are Western Desert people.
324 It is clear that Darugadi and his affine Murni/Matjika were alive at the time of effective sovereignty given that Telpha was born in about 1887 and her brother Jumbo Harris is recorded as having been born in 1889.
325 The apical Billy had two partners, Mary-Ann and Mary-Ann's sister. Billy and Mary-Ann had two daughters including Daisy Cordella (later Daisy Hogarth), and Billy had two further daughters, presumably with Mary-Ann's sister. The sisters were referred to by Gay Harris as the "four sisters" - Julia Hill, Amy Rex, Daisy [Cordella] and Trilby Weeties. Daisy Cordella is the mother of Luxie Hogarth and the grandmother of Geraldine Hogarth each of whom gave evidence. As Dr Brunton opined, Daisy Cordella was a probable informant for Tindale in 1939. Tindale created a data card for Daisy Cordella as well as for Mary-Ann. Those records show that Mary-Ann was born in the period "1880-90" at Darlot and that Daisy Cordella was born in 1909 at Darlot. The "tribe" assigned by Tindale to Mary-Ann was "Pini" and for Daisy "Tjalkadjara Pini". Billy was labelled by Tindale as "Tjalkadjara or Pini". Each of the experts and all of the parties accept that the members of the Billy ancestral family were Western Desert people.
326 Billy's date of birth is not clear, but it may be assumed that, just as for his partner Mary-Ann, he was alive at effective sovereignty. His place of birth is also not entirely clear. A record to which Dr Draper referred (an anthropologist's report tendered in Wongatha) suggests that he was born in Darlot, but both the applicant and the State's submissions suggest that Billy came from Wongawol/Lake Carnegie. Geraldine Hogarth was adamant that Billy was born in Darlot.
327 Inyarndi is the great grandmother of Lorraine Barnard who was a witness in this proceeding. Lorraine gave evidence that Inyarndi came from Lake Carnegie. She was clearly alive at effective sovereignty given that her son Jimmy Wheelbarrow was born in 1888. According to his death certificate, Jimmy Wheelbarrow was born in the "Wongawol District". Each of the experts accepted that Inyarndi was "Pini" and a Western Desert person.
328 On that evidence, it is likely that each of the apicals Darugadi, Murni/Matjika, Billy and Inyarndi, as well as Billy's partner Mary-Ann and Darugadi's daughter Telpha and son Jumbo Harris, as well as Inyarndi's son Jimmy Wheelbarrow, were all alive at effective sovereignty.
329 There is a sufficient body of evidence, as well as a level of acceptance amongst the experts and the parties that called them to enable the conclusion that, at effective sovereignty, each of the Darugadi, Billy and Inyarndi ancestral families were Western Desert people and part of the same group or sub-set of Western Desert Society, and that the territory in which they held rights to land and waters, in accordance with Western Desert traditional laws and customs, was that described by Telpha to Tindale.
330 Drs Brunton and Lynes accepted that it is likely that each of the apicals Darugadi, Murni/Matjika, Billy and Inyarndi were "Pini" or in the case of Billy, "Pini and/or Tjalkadjara". It may be assumed that the close relatives of those apicals were also members of the same group.
331 The connection of these persons to each other and to the territory described by Telpha to Tindale is supported by evidence of their places of birth and death, their common placement and travels at various times in and through that territory. There is evidence that the tracks travelled by these persons followed dreaming tracks which formed part of the tjukurrpa which they likely acknowledged, shared and observed.
332 Each of the persons I have identified as having been alive at effective sovereignty was likely born in the territory described by Telpha to Tindale. It may be that Darugadi was born some 20 kilometres north of Wongawol and it seems likely that Jumbo Harris was also born at about the same place - Thurrguddy Creek. However, to conclude that Thurrguddy Creek is outside the territory described by Telpha to Tindale is to impose unwarranted precision upon the general description of boundaries which Telpha gave to Tindale.
333 Before describing the evidence about the places where these persons were located or the roaming of country with which they were likely involved, it is necessary to record contextual considerations of some importance.
334 At the extreme north of the territory described by Telpha to Tindale is Wongawol and Lake Carnegie. At the south is Lake Darlot and slightly further south the township of Darlot. Between those two areas, a chain of waterholes, rock-holes or soaks exists and forms part of the Goomboowan dreaming.
335 The Goomboowan dreaming is an important part of the tjukurrpa applicable to the area described by Telpha to Tindale. As earlier described, it is a women's story in relation to which unrestricted as well as female gender-restricted evidence was received mainly from Gay Harris, Geraldine Hogarth and Luxie Hogarth. The evidence established that there is a lengthy song with many verses for the Goomboowan dreaming and that it is a story about water (amongst other subjects). I accept Dr Draper's evidence that the Goomboowan dreaming:
… provides an important source of knowledge about the chain of water sources which provide the traditional travelling route and associated use of surrounding country between Wongawol and Lake Carnegie in the north, down the west side of the [Tail] of the Wutha Claim to Lake Darlot and south east to Wingara and Runggul Soaks, Milurie and Mulga Queen, or southwest towards Darlot (now known as Woodarra) and Weebo. This stretch of country with water made this transhumance possible on a regular basis, whereas the normally waterless sandhill country to the east across the [Tail] area north of the Grant Duff Range was only useable on those relatively rare occasions when recent rains provided temporary water sources and blooms of plant growth".
336 Gay Harris recalled that the "old people" in Wiluna recognised her and her sister as "the owners of Darugadi country in Wongawol" meaning that their family come from there. The "old people" referred to Darugadi as the "Goomboowan boss".
337 Other tjukurrpa of contextual relevance connected to the Darlot area is the Kuna Bulla dreaming at Lake Darlot and the story of Mithilpithii connected to various sites at Weebo.
338 The connection with, responsibility for and observance of the Goomboowan dreaming, the Kuna Bulla and the Mithilpithii tjukurrpa, and the use and application of the knowledge provided by it by the Darugadi, Billy and Inyarndi ancestral families at or about the time of effective sovereignty, is suggested by the places they frequented and the travels they appear to have made.
339 Telpha's birth at Wingara Soak in about 1887 places the Darugadi ancestral family at Wingara Soak (some 20 kilometres north of Lake Darlot) at that time. Jumbo Harris' birth about two years later places the family at the other end of the territory described by Telpha to Tindale, in the north at Thurraguddy Creek near Lake Carnegie. The uncertainty in the evidence as to whether Darugadi was born at Thurraguddy Creek or at Wingara Soak itself points to Darugadi's likely association to both of those places and his travels along the major water sources between Lake Carnegie to the north and Darlot to the south. Darugadi's travel to and association with Thurraguddy Creek is further supported by the evidence that he was buried there.
340 Furthermore, the suggestion of regular travels between the major northern and southern water sources in the area described by Telpha to Tindale is found in the evidence about Darugadi's affine Murni/Matjika. She was born at Kalyaltcha, on the southern side of Lake Carnegie, but with Telpha's birth at Wingara Soak in 1887, Murni/Matjika is located at or about the southern end of the territory described by Telpha to Tindale. That the Darugadi ancestral family travelled from south to north with some regularity is also demonstrated by evidence that shortly after having been born in Wingara Soak in the south, Telpha, as a little girl, met her first non-Aboriginal person in the north at Kalyaltcha. The evidence also places Telpha "a little later" back down south at Elistoun Creek (near Lake Darlot) meeting another non-Aboriginal, the explorer John Forrest.
341 The birthplaces of Billy's four daughters suggests that the Billy ancestral family regularly moved between Wongawol/Lake Carnegie and the Darlot area. In 1909 when his daughter Daisy Cordella was born at Darlot, the Billy ancestral family were likely to have been there. Amy Rex was born in the Mount Step area (not far north of Lake Darlot), Trilby Weeties was born at Windidda (just south of Lake Carnegie) and Julia Hill was born at Wongawol. As I shall explain, in the 1920s the Billy ancestral family was at Wongawol and then travelled south to the Darlot area.
342 Inyarndi was likely born at Lake Carnegie. In 1898 she was in or about Lake Carnegie in the "Wongawol District" giving birth to her son Jimmy Wheelbarrow. According to testimony given by Inyarndi's great-granddaughter Lorraine Barnard to Dr Draper, "Inyarndi's traditional country ran south from Lake Carnegie along the rockhole traveling route to Darlot". Before settling in Cue, Inyarndi fled from Wongawol south to Darlot in or around the 1920s as a result of the events to which I now turn.
343 In the early part of the 20th century, a pastoralist called Tommy Melon and "old Jack Appleby" were involved in the shooting or shootings of Aboriginal people located at Wongawol. The best evidence suggests that the shootings likely took place in the 1920s. That was the evidence of Gay Harris and also of Luxie Hogarth.
344 Telpha's mother (Murni/Matjika) was shot dead by Tommy Melon and is buried at Wongawol. Billy and his family were there at Wongawol at the time of the shootings as were Inyarndi and her family. The evidence suggests that the shootings were significant to the history of the Darugadi, Billy and Inyarndi ancestral families.
345 Beyond those ancestral families, other persons associated with those ancestral families also left Wongawol as a result of the shootings. Gay Harris deposed that Rosie Meredith's family, Skipper Sandy's wife Molly and Patty Jindardi's wife Alice, as well as Daisy Cordella and her sisters (whom she referred to as her father's [Jumbo Harris'] "sister - cousins") came to the Darlot area. According to Gay Harris, others, including her uncles and aunties fled to Wiluna and also to Mulga Queen. She mentioned Old Mr Fisher, an ancestor of the Redman family, as coming from Wongawol to the Mulga Queen area. Others went to Jingalong and "different ways".
346 Several references made by Gay Harris support the proposition that when these persons fled from Wongawol to the Darlot area they were travelling through their own country. Gay Harris said that they "were chosen" (perhaps she meant "had chosen") to go to the "Darlot/Weebo area" because "they had a thukur in that country, in Mithilpithii. I was told that the women "were chosen" for that Weebo country because "their thukur was there waiting for them when they fled". She continued that "[o]ur thukur was at Mithilpithii, which is a special women's place. There is a matching one at Weebo".
347 That evidence of thukur at Mithilpithii and Weebo is consistent with evidence given by Geraldine Hogarth to which I will return.
348 Gay Harris also said in her oral evidence that "[t]hey all had their thukur and everything down here [referring to the Darlot area] so they came down". Additionally, Gay Harris deposed as to her understanding that it took a long time for the "Pini people" who left Wongawol to travel by foot to the Darlot area and that the land they travelled through was not, at that time, occupied by other people. Gay did say however that maybe there were some "Tjalkadjarra" and some "Koara" people in the Tail when "the mob from Wongawol came down". She specifically mentioned the Greens as being in the area around Darlot at the time before the people came down from Wongawol, and also Skipper and Jindardi being in the Mulga Queen area at that time. In the context of the other evidence she gave, it seems that Gay Harris understood all those persons to be closely associated with the people that came down from Wongawol and of the same group or tribe. Her understanding was that the labels "Pini", "Koara" and "Tjalkadjarra" (sometimes referred to by her as "Thalkanthunu") all essentially referred to the same tribe.
349 In her witness statement, Luxie Hogarth stated that her mother, Daisy Cordella, had told her that when she was 18 she had left Wongawol country with her sisters and cousins because of the Tommy Melon shootings. Her mother had told her that they travelled to Mulga Queen, then came down to Darlot and stopped there and at various pastoral stations. One interpretation of the evidence in the statement of Luxie Hogarth as well as the evidence on the same topic given in the statement provided by her daughter Geraldine Hogarth, as well as the evidence given by them both in Wongatha, is that they were saying that the Billy ancestral family was originally from the Wongawol area and fled south permanently to the Darlot area as a result of the Tommy Melon shootings. Luxie and Geraldine elaborated on this in their oral evidence. Luxie said that her mother (and presumable her mother's family) was travelling to Wongawol when they heard about "that white man there was collecting all the people". She suggested that on receiving that information her mother changed direction and travelled away from Wongawol and down to Darlot. That was also Geraldine Hogarth's understanding. She said that the Billy ancestral family was not from Wongawol in the sense that their home territory was confined to Wongawol. Her understanding was that, with other members of the tribe, they traversed up and down between the Wongawol and the Darlot areas for ceremony and for their "law and culture". I accept that evidence. It seems to me to be consistent with other evidence, and in particular the evidence that, at a time prior to the Tommy Melon shootings, the members of the Billy ancestral family had at various times been located in and around the Darlot area.
350 In Wongatha (at [2539]-[2541]), Luxie Hogarth gave evidence that her mother came that way to Lake Darlot and was "camping there because it is one [of the] dreaming stories, dreamtime story". Lindgren J accepted that Luxie's mother had told her that there was a story associated with Darlot. Further, Lindgren J accepted that the dreaming story associated with the Darlot area was part of the reason why those fleeing Wongawol as a result of the Tommy Melon shootings came to the Darlot area. Evidence before me, but originally given in Wongatha by Luxie Hogarth, included that her mother and her aunties had said to her that they thought that "the people chose to come to Darlot because the same thukur stories came down there from Wongawol".
351 In Wongatha, Geraldine deposed that "[t]here are sacred women's stories that are connected to places in both areas". In the proceeding before me, Geraldine Hogarth also deposed to her understanding that the thukur in the Darlot area was a reason for the travels to the Darlot area of the people with which her ancestors were associated. She said that her understanding was based on the thukur in the Darlot area that her grandmothers had told her about. She specifically mentioned dreaming stories "about Weebo, about Lake Darlot, about Mithilpithii, that Thuruda and other sites that are round there [belonging] to men and women". She indicated that she had given evidence in Wongatha about Mithilpithii.
352 A summary of that evidence is set out in Annexure F to the Wongatha judgment and was adopted by Geraldine Hogarth and tendered in this proceeding. That summary of evidence records that evidence was given at Miilka and Mithilpithii and at a number of other locations on Weebo Pastoral Station. Those locations were said to be a part of a site complex known as "Mithilpithii". The story of Mithilpithii is said to relate to the giving of life. The summary records Geraldine Hogarth's evidence that her grandmother had told her the stories [about Mithilipithii]. In Wongatha (at [2542]), Lindgren J referred to the evidence of Geraldine Hogarth and Luxie Hogarth given at Mithilpithii and said that "[t]heir evidence related to the features of the landscape and was of activities which used to take place there". His Honour held that knowledge of what used to happen has been passed down from grandmothers, to mothers and daughters.
353 The reference made by Geraldine Hogarth in her evidence before me to the dreaming stories about Lake Darlot which had (in part) motivated the travel down from Wongawol, is a likely reference to the Kuna Bulla dreaming story which was the subject of female gender-restricted evidence given by Geraldine Hogarth, as well as her mother Luxie and also Gay Harris, at Lake Darlot.
354 As earlier stated, Inyarndi's great-granddaughter, Lorraine Barnard, gave evidence that Inyarndi came from Lake Carnegie where her son Jimmy Wheelbarrow was born. I have also earlier referred to the evidence of Inyarndi's traditional country running south from Lake Carnegie along the rockhole travelling route to Darlot. Evidence given by Lorraine Barnard also suggested that the Tommy Melon shootings were the impetus for Inyarndi and her brothers and sisters having to leave that area. Lorraine told Dr Draper that Inyarndi moved south permanently when Tommy Melon was shooting Aboriginal men and taking their women at Wongawol Station.
355 Each of Geraldine Hogarth, Luxie Hogarth and Gay Harris referred to the people sharing the territory described by them as "Pini", "Koara" and "Tjalkadjarra". The understanding of Geraldine Hogarth and Gay Harris seems to be that whilst one of those labels may have more application to some of those people than others (for instance Billy was referred to by Geraldine Hogarth as "Tjalkadjarra" and Gay Harris referred to Patty Jindardi and Skipper as both "Koara" and "Tjalkadjarra"), those labels were each applicable to the same group of people. They both also suggested that those people were known as the "Darlot mob".
356 I should also record that each of Luxie Hogarth, Geraldine Hogarth and Gay Harris had a broader view of the southern extent of the territory which was the traditional country of their ancestral group and now their own manta (home area) than that described by Telpha to Tindale. For instance, Geraldine Hogarth stated that when she referred to the Darlot area being the area that her ancestors came down to after the Tommy Melon shootings, she was referring to an area extending well to the south of Darlot (going towards the Leonora area) and also to the areas west and south west of Darlot taking in the Banjawarn and Erlistoun pastoral stations.
357 For present purposes it is not necessary for me to determine whether rights were held by the Darugadi, Billy and Inyarndi ancestral families beyond the Tail to the extent suggested by the evidence of those witnesses. It is relevant, however, for me to record that the Weebo area, with which the Mithilpithii tjukurrpa is associated, is sufficiently close to Darlot to be regarded as within the territory described by Telpha to Tindale.
358 The evidence to which I have referred supports the conclusion that, at or about effective sovereignty, the Darugadi, Billy and Inyarndi ancestral families (with others) were members of the same group or sub-set of people who shared a connection with, a knowledge of and responsibility for the tjukurrpa in the territory described by Telpha to Tindale. The evidence supports the conclusion that for those reasons, as well as their use and occupation of that territory, that group held rights and interests to the land and waters of that territory in accordance with Western Desert traditional laws and customs. Those conclusions are supported by the evidence given by the expert anthropologist to which I now turn.
359 As I have said, Dr Brunton's view was that each of Darugadi, Murni/Matjika, Billy and Inyarndi shared a common tribal identity. Dr Brunton opined that these persons were members of the same pre-effective sovereignty society. That society was "Pini", although he thought other labels may also have been associated with the people in the area in question. Dr Brunton regarded a shared common identity as an important element in identifying the persons who share a common society or group, although he cautioned that there is a real difficulty in the use of the tribal labels to define a society within the Western Desert.
360 He opined that a Western Desert group or society may, in terms of its interests in land, possess many estates and that the "Pini" society is likely to have consisted of a number of estates located in the territory that Telpha described to Tindale. He was circumspect about the extent to which all estates used by a group or particular society are estates in which all members of the group had rights and interests, particularly in relation to estates on the edges of the area in question. He accepted that, at effective sovereignty, Darugadi (and Murni/Matjika), Billy and Inyarndi and their ancestors, whether alone or in combination (including with others, but excluding Julia Sandstone), held rights and interests in the area described by Telpha to Tindale. He considered that each of those apicals held rights in some portions of that area.
361 Dr Lynes agreed. She added that in the Western Desert there are unlikely to be hard and fast boundaries as between different groups or societies because on the edges of territory there may be a bit of overlap where people who identify under different labels may each consider particular areas to be their country.
362 Dr Draper agreed that pre-effective sovereignty, the Tail was a collection of estates belonging to or associated with a group most commonly labelled as Pini. He opined that a feature of that group (actually and conceptually), was that the possessory connection to the land is shared between members of the group across a conglomeration of estates in which some members might have a closer association with a particular estate or estates than others. He said that the basis for that shared possession was a common spiritual association by reference to tjukurrpa or normative laws and customs. Dr Draper opined that each of Darugadi (and Murni/Matjika), Billy and Inyarndi and their ancestors, whether alone or in some combination (including with others), held rights in the area described by Telpha to Tindale. He differed from Drs Brunton and Lynes by including Julia Sandstone as a holder of rights in that area. He also differed by extending the area in which such rights were held to areas beyond the territory described by Telpha to Tindale to an area including the Body and the Head.
363 Each of Drs Brunton and Lynes opined that whilst it is possible, it is not probable that the rights held by the Darugadi, Billy and Inyarndi ancestral families extended beyond the territory described by Telpha to Tindale, and in particular into the area around Lawlers in the north-eastern corner of the Body.
364 I am satisfied that, consistently with the concessions made by the State, pre-effective sovereignty, each of the Darugadi, Billy and Inyarndi ancestral families variously occupied the Tail and that the members of those families held possessory rights to land and waters in the Tail in accordance with Western Desert traditional laws and customs.
365 The satisfaction just expressed, only advances the applicant's claim in so far as it relates to the Tail. To make good its claim to the Body, the applicant largely relied on the asserted connection with the Body of the apical Julia Sandstone and her daughter, Sarah Brown. Given the applicant's case that a single group, sub-set or society (the Wutha group) comprising all four ancestral families share rights and interests in an area which includes both the Tail and the Body, and in so far as the applicant contended that those rights and interests were possessed by those families at sovereignty, it is necessary to further consider whether, pre-effective sovereignty, the group holding rights in the area described by Telpha to Tindale included Julia Sandstone (or her ancestors), and whether the area in which that group held rights and interests in land and waters extended into an area which included the Body.
366 There is however, one aspect of the case put by the applicant which suggested that the Wutha group acquired right and interests in the Body post-effective sovereignty. The closing written submissions of the applicant put a great deal of emphasis on the marriage of Sarah Brown to William Ashwin in 1930. This was said to have brought about "a convergence" of the Julia Sandstone ancestral family with the Darugadi, Billy and Inyarndi ancestral families as a single society or land-holding group sharing rights and interests in both the Tail and the Body. Implicit in that proposition is that upon that marriage, rights and interests in the Body were acquired by the Darugadi, Billy and Inyarndi ancestral families and their descendants and that interests in the Tail were acquired by the Julia Sandstone ancestral family and its descendants, so that consistently with the applicant's case as to the sharing of rights and interests, each member of those families shared a possessory interest in land and waters across both the Tail and the Body.
367 In closing oral submissions, Senior Counsel for the applicant somewhat resiled from the heavy reliance which he had earlier put on the marriage of Sarah Brown to William Ashwin. Whilst the marriage continued to be relied upon, it was said that the marriage was a relevant matter in the context of the broader contention that the ancestral families were connected "by a shared acknowledgment of Western Desert traditional law and custom". That submission, as I understand it, sought to revert to Dr Draper's reasoning as to the nature of the Wutha group as a single land-holding group and the means by which it acquired rights and interests in the Body. I will return to that shortly.
368 I should first address the reliance placed on the marriage of Sarah Brown to William Ashwin and the suggestion that on that marriage there was a convergence of the four ancestral families and their shared rights and interests in land and waters. That reliance would be entirely unfounded unless it was demonstrated that the asserted convergence occurred pursuant to the traditional laws and customs of the people in question. Nothing of the sort has been demonstrated. Assuming in favour of the applicant that the rights and interests held in the Body by the Julia Sandstone ancestral family in 1930 were held under Western Desert traditional laws and customs, there is no evidence from which I could possibly conclude that Western Desert traditional laws and customs provided for the convergence of rights and interests in land and waters across multiple family groups upon a single instance of inter-marriage between two of the multiple families involved. None of the experts (including Dr Draper) gave evidence in support of the existence of laws and customs to that effect and Senior Counsel for the applicant could not otherwise support the proposition contended for by reference to any evidence of Western Desert laws and customs. The proposition must be rejected.
369 I turn then to consider Dr Draper's reasoning in support of his view that members of a single land-owning group (the Wutha group) shared possessory rights and interests in lands and waters in the Tail and the Body. Although he did not expressly and clearly distinguish between them (as I consider he should have), I understand Dr Draper to have relied on both pre-effective and post-effective sovereignty circumstances, mainly concerned with what he called "patterns of association with country", to support his conclusion. I have taken into account both the pre-effective and post-effective circumstances upon which Dr Draper appears to have relied, but I do so on the understanding that, in relying upon Dr Draper's approach, the applicant does not contend that rights and interests were acquired post-effective sovereignty by way of succession but does contend that post-effective sovereignty circumstances are confirmatory of the pre-effective sovereignty holding or acquisition of the rights and interests asserted.
370 Julia Sandstone is sometimes referred to by the name "Old Julia". Her time of birth and place of birth are somewhat contested. Dr Draper depicted her as being from the "Paynesville area near Sandstone". That seems to be based on information provided by her grandson (and Sarah Brown's son) John Ashwin. However, in 1939 Tindale met one of the children of Julia Sandstone, her son Max Warrigal. Based on information obtained from Max Warrigal, Tindale recorded Julia Sandstone as having been born at Menzies in the period "1890-1900". He also recorded that Julia Sandstone's husband (and Max Warrigal's father) was "Maxie of Leonora". Whether or not she was born at or near Sandstone, Julia Sandstone's connection to Sandstone is not in apparent contest. Three of her five children were born there - Charlie Sandstone in 1906, Sarah Brown in 1912 and Max Warrigal in about 1916.
371 I accept that Julia Sandstone was alive at or about effective sovereignty. I incline to the view that the information as to her birth place is likely to be more reliable coming from her son than from her grandson and consider, on that basis, that it is more likely that Julia Sandstone was born in Menzies. It is not clear when Julia Sandstone died. She is buried at Mount Magnet.
372 There is not a lot more known about Julia Sandstone, other than for information which comes from Sarah Brown directly or indirectly through her children. Most of that information concerns the places that Sarah Brown travelled to with her mother as a young girl in or about 1920.
373 It is the childhood travels of Sarah Brown with her mother Julia Sandstone which are plotted by location on Map 5-6 of Dr Draper's first report (Annexure 6) and then depicted on Dr Draper's critical Map 5-7 as "Sarah Brown's Travels" (Annexure 5). Those travels are said by Dr Draper to be a likely reflection of Julia Sandstone's regular travel routes established prior to 1900 and therefore the "traditional country of Julia Sandstone".
374 At [163]-[166] of his first report, Dr Draper said this:
[163] It is probable that Sarah Brown's childhood travels with her mother are similar to routes her mother Julia would have travelled before Sarah was born. Places that Sarah told her children she travelled to regularly have been plotted onto Map 5-6 to represent the traditional country of Julia Sandstone. As Sarah was born in 1912, it is reasonable to assess her mother's regular travel routes as being established prior to 1900.
[164] The locations chosen to represent Sarah Brown's travels, and extrapolated to represent her mother's traditional country, consist of Sandstone, Windsor, Payne's Find, Youanmi Downs, Cashmere Downs, Perrinvale, Mount Ida, Menzies, Niagara, Kookynie, Tower Hill near Leonora (mapped as Leonora), Sturt Meadows, Chain of Waterholes at East Terraces (mapped as East Terraces), Laverton, Salt Soak near Mulga Queen (mapped as Mulga Queen), Weebo and Lawlers.
[165] This is not an exhaustive list of places Sarah visited. It does, however, included [sic] the places that are regularly nominated as locations Sarah travelled to or stayed. These reports ultimately derive from Sarah's own discussion of places she visited and includes places she identified as sites for ceremonial business. Windsor, approximately 70 km south east of Limestone Bore, is included on Map 5-6 because it is a corroboree ground which Sarah is said to have visited on her rounds (Draper 2014: 59).
[166] This evidence suggests that the central portion of the Wutha native title claim area, the "Body" and two small, isolated portions of the claim area [Areas 3 and 4], lie within Julia Sandstone's traditional country. Charlie Sandstone's and Sarah Brown's births lie on the border of Julia's traditional country in 1906 and 1912 respectively.
375 Having concluded by that reasoning that the reported post-effective sovereignty travels of Sarah Brown and Julia Sandstone reflected the traditional pre-effective sovereignty country of Julia Sandstone, the next step in Dr Draper's reasoning was to conclude that Julia Sandstone's traditional country was the traditional country of the Wutha group. The fundamental premise for that conclusion is the asserted overlapping patterns of association with the country of Julia Sandstone and the country of the other Wutha apical ancestors and their inter-familial relations at or about effective sovereignty. That overlapping and those familial relations are suggested to be indicative of each of those ancestral families belonging to the same group, sub-set or society sharing rights and interests over the same lands and waters. In Dr Draper's third report, he said this about the Julia Sandstone, Darugadi, Billy and Inyarndi ancestral families (at [13]):
In my opinion, these families are from the same society (a subset of Western Desert Society), not from neighbouring societies (ie, Western Desert and non-Western Desert), for the simple but compelling reason that they share country throughout the Wutha claim area, and that descendants of all of the apical family lines identified for the Wutha claim have through several generations demonstrated traditional rights and interests throughout the claim area.
376 Later, Dr Draper said (at [15]):
The documented, ongoing relationships of the these families with one another and with the entirety of the [Trial Area] are consistent with the conclusion that the Wutha claim families constituted a subset of Western Desert society …
377 Other than for one matter in relation to an asserted genealogical relationship between Julia Sandstone and Inyarndi to which I will return, it is not necessary for me to consider Dr Draper's views about the post-effective sovereignty interactions between Julia Sandstone's descendants and those of Inyarndi. The evidence upon which Dr Draper relies for those views is directed at inter-familial relations and patterns of association with country, which Dr Draper asserts connects persons associated with the Head and the Body. The focus of the present analysis, accepting for the moment that inter-familial relations and overlapping patterns of association with country are demonstrative of a single society or land-owning group, is whether the evidence upon which the applicant relies demonstrates that, pre-effective sovereignty, there were inter-familial relations and overlapping patterns of association with country sufficient to show that, in accordance with Western Desert traditional laws and customs, the members of the same land-owning group (the Wutha group) shared rights and interests in both the Tail and the Body.
378 There is no evidence of any pre-effective sovereignty genealogical connection between the Darugadi and Julia Sandstone ancestral families or the Julia Sandstone and Billy ancestral families.
379 A genealogical relationship between Julia Sandstone and Inyarndi was asserted in Dr Draper's third report. Dr Draper provided his third report after witness evidence was received and, in particular, after Lorraine Barnard had given her evidence. In that report, Dr Draper opined that Julia Sandstone could be included within the Inyarndi apical descent line. The basis for this late claim by Dr Draper is flawed. The claim is based on information obtained from Lorraine Barnard, Inyarndi's great-granddaughter. Dr Draper's report states that Lorraine Barnard revealed to him that "she was told that Ngoonjul was closely related to Julia Sandstone ("Old Julia"), and was either her father or her uncle". On that basis, Dr Draper opined that Julia could be included within the Inyarndi apical descent line. It seems that Dr Draper had assumed that as Inyarndi was a wife of Ngoonjul, Inyarndi was Julia Sandstone's mother. However, that conclusion is contrary to the evidence given by Lorraine Barnard.
380 In her evidence, Lorraine Barnard confirmed that her great-grandfather was Ngoonjul. She identified her connection to June Ashwin as arising from sharing Ngoonjul as a great-grandfather. She said that Ngoonjul was Julia Sandstone's father, but explained that there was no genealogical relationship between Inyarndi and Julia Sandstone. Inyarndi was one of several wives that Ngoonjul had. According to Lorraine Barnard, Julia Sandstone was the daughter of Ngoonjul and a wife of Ngoonjul (but not Inyarndi) that Lorraine was unable to name.
381 On the basis of what he says he was told by Lorraine Barnard, Dr Draper's third report also contains the following observation which is the subject of objection by the State (emphasis added):
[Inyarndi's] husband Noon:jul (Ngoonjul) was from Sandstone, and his traditional country also included Darlot, which is how they came together. Lorraine is certain that they were from the same people, and not from different tribes, from the stories told to her.
382 Lorraine Barnard did give evidence that Ngoonjul was "a Sandstone man". She said he lived all of his life there and that he had "connection to Wiluna, Meekatharra, Cue, Sandstone". She did not say that Ngoonjul's country included the Darlot area, nor did she suggest that Inyarndi and Ngoonjul were "from the same people". I accept that Dr Draper's account expands upon the evidence actually given by Lorraine Barnard and that the State was denied the opportunity to cross-examine Lorraine on that assertion given the lateness of the applicant's reliance upon it. On that basis, I would uphold the State's evidentiary objection. I would add that, in any event, the observation made by Lorraine Barnard as reported by Dr Draper is an observation made at a high level of generality and not deserving of significant weight on the issue with which I am concerned. That is so including because, as Dr Brunton observed, the fact that two persons identify as being from the same people or tribe does not of itself sustain a conclusion that they are of the same land-owning or land-sharing group.
383 At [174]-[175] of his first report and with particular reference to Map 5-7 (Annexure 5), Dr Draper said this:
174. The Hogarth family country overlaps much of the area described by Telpha as 'Pini' county. There is also considerable overlap with the traditional country of Sarah Brown and Julia Sandstone (see Map 5-7). Map 5-7 shows 10 examples which have been recorded for the area of country inhabited by a family or individual, to illustrate the extents and interactions of these 'runs' as they are sometimes called, in relation to the claim area. These are not intended as examples of 'my country' (Harrington-Smith and Ors 2007) cobbled together to assemble an artificial group 'country'. Rather they comprise a recorded sample of how a native title claim area within a traditional 'country' defined by the claimant group actually is populated and utilised by its inhabitants. Temporally, the pattern shown on the map is a composite, as the examples which could be found span a period of more than a century. Some of the examples represent a specific person's lifetime, while others refer to a cumulative record for more than one generation of a particular family.
175. Julia and Sarah's identified traditional country encompasses most of the eastern portion of the Wutha native title claim area, both the small separate areas and a considerable portion of the central claim area. The country and places described by Luxie and Geraldine add another layer, or component to Wutha traditional country. Daisy Cordella's possible birthdate is 1909 in Darlot, so her parents were probably contemporaries of Telpha Ashwin, Jumbo Harris and Julia Sandstone. They probably were living and travelling in their traditional areas around or before 1900.
384 Before addressing Map 5-7 and Dr Draper's assertion of there having been "considerable overlap" in interactions with country, the last two sentences of [175] contain an assertion that Julia Sandstone was probably a contemporary of Billy, Mary-Anne, Telpha Ashwin and Jumbo Harris in Darlot at or about 1909. The foundation for that assertion is not given. There is no evidence that Julia Sandstone ever met or was located at the same place at or about the same time as the other individuals named by Dr Draper. On the evidence upon which Dr Draper himself relies, at or about 1909, Julia Sandstone was bearing children in Sandstone. Sandstone is some 220 kilometres from Darlot and Darlot is not one of the locations identified by Dr Draper (at [164] of his first report set out above) as a specific location to which Julia Sandstone travelled. Whilst it is possible Julia Sandstone travelled to Darlot at or about 1909, Dr Draper's suggestion that she was probably a contemporary of Telpha Ashwin and Jumbo Harris is too speculative to be given any weight.
385 There is no positive evidence before me of any pre-effective sovereignty genealogical or other familial relations or interactions between the Julia Sandstone ancestral family and the Darugadi, Billy or Inyarndi ancestral families or any of the other persons or families with which the latter families were associated. There is no or insufficient evidence from which any such relations may be inferred. In that respect, I also note that, despite the evidence that Sarah Brown passed onto her children many stories about her travels with her mother and despite the fact that Sarah Brown married into the Darugadi family, the stories told by Sarah Brown do not include accounts of any interactions between Julia Sandstone or her ancestors with the Darugadi ancestral family or any other of the relevant families which I am satisfied were associated with the area described by Telpha to Tindale.
386 Turning then to Dr Draper's reliance on the information depicted in Map 5-7 (Annexure 5), the first observation that needs to be made is that, as Dr Draper himself recognised (at [174] of his first report set out above), the patterns shown in Map 5-7 "spanned a period more than a century". There are only two patterns in Map 5-7 which, as I understand Dr Draper's evidence, are intended to depict the pre-effective sovereignty "runs" of particular individuals. Those patterns are "Telpha Ashwin's Travels" which, despite the label, does not depict Telpha's travels but depicts the "boundary locations" of Telpha's country (presumably as described to Tindale) and "Sarah Brown's Travels", being the places that Sarah travelled to with Julia Sandstone (at or about 1920) which, as earlier indicated, Dr Draper relies upon as likely to reflect Julia Sandstone's traditional country prior to 1900.
387 The pattern for Sarah Brown depicted in Map 5-7 is based on the locations (plotted in Dr Draper's Map 5-6) identified by Dr Draper at [163]-[164] of his first report (set out above), being the locations that Sarah Brown told her children that she travelled to.
388 In terms of overlap with the area described by Telpha to Tindale (as interpreted by Dr Draper and depicted on Map 5-7), there is only one location of all of the locations used by Dr Draper to plot Julia Sandstone's pattern of travel, which may be said to be a location within the territory described by Telpha to Tindale. That location is "Salt Soak near Mulga Queen". Not only is the suggested overlap confined to merely one location, that location is at the boundary of the area described by Telpha to Tindale.
389 The line drawn by Dr Draper on Map 5-7 for "Sarah Brown's Travels" that intersects at Mulga Queen is, as I understand Dr Draper's evidence, intended to reflect the route that Sarah Brown (and therefore Julia Sandstone) walked from "Mulga Queen and then onto Lawlers" as recounted to Dr Draper by June Ashwin. The actual route that may have been taken between these two locations is open to speculation. It is possible that in walking that route, Julia Sandstone extensively entered into the territory described by Telpha to Tindale, but there is nothing to suggest that she did. Presuming that something like the most direct available route was taken, Julia Sandstone would have walked at or about the southern boundary of the territory described by Telpha to Tindale.
390 For the purpose of identifying the members of a single group or sub-set of people and the area in which that group shared rights and interests to land and waters, I would give little weight to overlapping interactions with country at a boundary. As Dr Lynes stated in the evidence given by her during the experts' conclave, within the Western Desert and at the boundary between two land-owning groups there will inevitably be "a bit of overlap in which there are sites that both consider to be part of their country".
391 Assuming in favour of the applicant that Julia Sandstone's travelling routes reflect Julia Sandstone's traditional country, the evidence relied upon by the applicant demonstrates little more than that the traditional country of Julia Sandstone bordered the traditional country of the Darugadi, Billy and Inyarndi ancestral families as depicted by Dr Draper on Map 5-7 by reference to the area described by Telpha to Tindale. Contrary to Dr Draper's conclusion, that evidence does not demonstrate considerable overlap in interaction with the same country by those families.
392 In any event, I do not accept that Julia Sandstone's traditional country would have been anywhere near as extensive as Dr Draper concluded that it was.
393 The area which Dr Draper attributes to have been Julia Sandstone's country is vast by any measure. The distance between Laverton and Paynes Find (being the most westerly and easterly points of the area asserted to have been Julia Sandstone's country) is some 460 kilometres. Between the most northerly point (Mulga Queen) and the most southerly point (Menzies) is some 250 kilometres. That one group of Aboriginal people "habitually travelled and used" an area of that size to the extent that, as Dr Draper would have it, they acquired core rights to land and waters over the entirety of the area is not a conclusion which ought be accepted without compelling substantiation. Dr Draper has not referred me to any anthropological study or any other credible research which would support his (seemingly unquestioned) acceptance that such a vast holding of possessory rights in land by one group was likely.
394 Dr Brunton considered that, in formulating his opinion of what constituted the traditional country of the Wutha group, Dr Draper may have taken into account all of the areas that their forebears had travelled over and used. Dr Brunton considered that for an anthropologist to take such an approach would be "quite extraordinary" and "almost certainly factually wrong". Dr Brunton relevantly said this:
I know of no part of Aboriginal Australia where the traditional laws and customs allow for 'possessory rights' over land that a group has simply 'traversed and used', independently of holding core rights to the land, or having been given some kind of long-standing license or permission by those who do hold core rights …
395 Dr Brunton considered that if Dr Draper's approach only took into account lands which the Wutha group forebears traversed and used but over which they already had possessory rights, the question would arise as to how a single group could have obtained possessory rights "to such an enormous stretch of country".
396 Dr Draper sought to address these criticisms, which I consider to be fundamental, in his second report. Dr Draper's response is unpersuasive. Dr Draper denied that he had included any area in which any member of the Wutha group had simply set foot upon at some time in the past. He asserted that his approach was to only take into account "habitually travelled and used areas to which [the Wutha group] claimed possessory rights or 'already had possessory rights'". However, little or no attempt was made by Dr Draper to justify that assertion. Nor do I regard that assertion to be supported by the evidence.
397 For current purposes, it is only necessary to assess Dr Draper's justification in relation to his assessment of the vast area he says was Julia Sandstone's traditional country. That justification is given in Dr Draper's first report at Part 5.3.2. The information there referred to does not sustain a conclusion that it is likely that the group of which Julia Sandstone was a member "habitually travelled and used" the entirety or even the vast majority of the area claimed by Dr Draper. Although Dr Draper asserted that the locations he has identified that border the area he has concluded was the traditional country of Julia Sandstone, were places that Sarah Brown told her children she travelled to "regularly". Dr Draper's report or the witness evidence called by the applicant, provides little or no evidence in relation to most of the locations which Dr Draper relied upon.
398 The information that Dr Draper relied upon at Part 5.3.2 of his first report includes that Julia Sandstone gave birth to children at Sandstone; that Sarah Brown was working at Agnew and at Gwalia (near Leonora) (and that presumably Julia Sandstone was with her); and that, as recounted by Sarah's daughter Vera Voss (now deceased), Sarah Brown knew of and had visited the "Chain of Waterholes" (not far from Leonora).
399 In Part 5.3.2 Dr Draper then refers to evidence given by Raymond Ashwin in Wongatha as to his mother's travels. The extract relied upon is taken from the summary of Raymond's evidence in Wongatha prepared by Lindgren J. No mention is made in that evidence of most of the locations that Dr Draper relies upon for his conclusion as to the extent of Julia Sandstone's traditional country. Furthermore, the evidence relied upon by Dr Draper is highly selective. When Raymond Ashwin's evidence as to Sarah Brown's traditional country is read in its entirety, it is apparent that Raymond Ashwin regarded his mother's country as not defined by, and more limited than, the country she travelled to for ceremony. Raymond Ashwin referred to travels for ceremony to Salt Soak near Mulga Queen as well as to law grounds at Perrinvale (in the south-eastern corner of the Body, near the Panhandle Men's Initiation Site). However, Raymond Ashwin's evidence of what his mother told him was her traditional country did not encompass those locations. He said that his mother's country was "Sandstone down to Leonora then Menzies". He referred to that as one area and as being "their tribal run". Further, as Dr Draper noted in his first report, Ralph Ashwin's evidence in Wongatha also described his mother's country as being "from Sandstone, to Leonora, down to Menzies and back to Sandstone".
400 In coming to his conclusion about the extent of Sarah Brown's and therefore Julia Sandstone's traditional country, Dr Draper pays little or no attention to Sarah Brown's own account of her traditional country as communicated to her sons or as directly communicated by her to the Seaman Land Inquiry. In 1984, Sarah Brown made a submission to the Seaman Land Inquiry. In that submission, she stated that "my tribe roamed in the area of Kookynie, Leonora and in the immediate areas" and that "the area my people roamed, [was] Kookynie, Leonora, Lawlers [sic] … at the time I was a child, there were a small number of old people left of our tribe which lived around Leonora, Gwalia and Kookynie". Sarah Brown did not mention any area in the Trial Area other than Lawlers.
401 In support of his conclusion that the locations he relied upon were "regularly" travelled to by Sarah Brown, Dr Draper also refers to information he received from June Ashwin. He states at [162] of his first report, that June Ashwin recounted the locations visited by Sarah Brown as follows:
That's where she walked from - Sandstone, Menzies, Cashmere, Kookanee [Kookynie], Laverton to Mulga Queen then onto Lawlers then back to Sandstone.
402 These are locations said by Dr Draper to be "visited" by Sarah Brown. Again, the locations identified are more limited than those relied upon by Dr Draper to construct Julia Sandstone's traditional country. None of the locations identified by June Ashwin are west of Sandstone.
403 In her evidence before me, June Ashwin described her mother's "run" as "Sandstone, Cashmere Downs, Perrinvale where Panhandle is, Menzies - big corroboree ground there - across to Kookynie - another big place there, they followed the corroborees, Mulga Queen, Weebo, Lawlers then back to Sandstone". June Ashwin deposed that all of the locations that she stated her mother travelled to were said by her mother to be "the area she roamed".
404 In so far as June Ashwin's evidence as to the area her mother "roamed" is to be construed as her mother's traditional country, that evidence would be inconsistent with her mother's own account of her traditional country and also the account of that country given by June's elder brothers Raymond Ashwin and Ralph Ashwin. The inconsistency may be explained by June Ashwin's acceptance that the area her mother said she roamed was not expressly referred to by her mother as her country. June Ashwin agreed that in 1984 her mother had said that her tribe lived around Leonora, Gwalia and Koakynie. It is apparent also that June Ashwin's understanding of where her mother roamed includes places where her mother attended for corroborees. In that respect, June Ashwin mentioned Mulga Queen, Weebo and Lawlers. I would not accept, without more, that attendance at a location for ceremony is of itself a basis for concluding that the location is part of the traditional country of the attendee. As the expert evidence recounts, Western Desert people often travelled beyond areas in which they held possessory rights and interests in land and waters in order to attend ceremonies and for other purposes.
405 I accept that it is likely that, post-effective sovereignty, Sarah Brown travelled to Mulga Queen and south-west to Lawlers for ceremony. It is quite possible that pre-effective sovereignty Julia Sandstone may also have travelled that route for the same purpose.
406 It is unsurprising that Julia Sandstone travelled widely post-effective sovereignty. The evidence of those travels is mainly evidence of Julia Sandstone's travels with her daughter Sarah Brown in or about the 1920s to avoid "the welfare". Sarah Brown's father was a non-Aboriginal man named Charlie Brown. She was lighter-skinned and for that reason she was liable to be removed from her family by the police. According to Dr Draper and on the basis of what he was told by June Ashwin, Julia Sandstone spent much of her life avoiding "the welfare" so that she could keep her daughter Sarah Brown. June Ashwin told Dr Draper that, with the exception of Sarah, all of Julia Sandstone's children were taken away by "the welfare". As Dr Draper stated, Sarah Brown's children recount stories of Sarah's efforts to avoid the "the welfare". Many of those efforts are likely to account for the travels of Julia Sandstone and her daughter Sarah at or about 1920 when Sarah was a child. That brings into question the conclusion arrived at by Dr Draper in his first report that it is probable that Sarah Brown's childhood travels with her mother are similar to routes her mother travelled prior to 1900. It does not follow that travels undertaken to avoid "the welfare" equate with traditional travelling routes. It might be presumed that traditional travelling routes are undertaken for traditional purposes. The purpose of avoiding "the welfare" is not traditional and makes the presumption that routes taken for that purpose were traditional routes on traditional country much more contestable. It must be recognised that Julia Sandstone's desire to hide Sarah from "the welfare" may well have regularly taken her outside of her traditional country.
407 I will return to the question of where Julia Sandstone's traditional country was and whether or not a finding as to that matter is available to be made. For present purposes, I am satisfied that the evidence does not establish that any part of the territory described by Telpha to Tindale was part of Julia Sandstone's traditional country pre-effective sovereignty. As I have found, the evidence does not establish either familial relationships or overlapping patterns of association with land or, in other words, the sharing of land or shared affiliation in relation to land between the Julia Sandstone ancestral family and the Darugadi, Billy and Inyarndi ancestral families. In particular there is no evidence of the sharing of, association with, knowledge of or responsibility for the tjukurrpa connected to the territory described by Telpha to Tindale by Julia Sandstone, her family or her ancestors.
408 There is no evidence of any association by Julia Sandstone with either the Goomboowan, the Kuna Bulla or the Mithilpithii tjukurrpa. There is no evidence that Sarah Brown had any knowledge of that tjukurrpa. June Ashwin had no apparent knowledge of that tjukurrpa (as discussed in Annexure 7). Apart from her evidence that she was aware of the existence of the Goomboowan dreaming, she gave no evidence at all about either that tjukurrpa or Kuna Bulla or Mithilpithii. Given that Sarah Brown was "high up in culture", and particularly given that much of the tjukurrpa concerned is women's business, it might be supposed that if Julia Sandstone was associated with that tjukurrpa she would have passed it on to her daughter Sarah Brown and that in turn, Sarah would have passed it on to her daughter, June Ashwin.
409 The lack of commonality between Julia Sandstone and the other apicals in terms of their claimed country is further made apparent from the understanding displayed by the Ashwin siblings about the different sources of what they asserted to be their entitlement to country.
410 As is apparent from Dr Draper's first report, Raymond Ashwin and Ralph Ashwin, both children of William Ashwin and Sarah Brown, asserted their interests to the Tail by reference to their father's country (their father being a descendent of Darugadi) and asserted their interests in the Body by reference to their mother's country (their mother being a descendent of Julia Sandstone). The assertion by those persons of different and disparate sources of entitlement as between the Tail and the Body supports the conclusion that a single land-owning group did not possess interests in both the Tail and the Body, and that the interests in land and waters of the Darugadi ancestral family were different and distinct from the Julia Sandstone ancestral family.
411 The evidence of Raymond Ashwin and Ralph Ashwin as to their country is used by Dr Draper in Map 5-7 to suggest a commonality of possessory rights to country as between the Tail and the Body and the area between them. That representation is misleading given the different sources of entitlement for each of those areas which each of Raymond and Ralph Ashwin referred to.
412 The evidence of Geoffrey Ashwin was that the Wutha claim was made up of two claims, his mother's claim and his father's claim. His understanding was that his mother and father "had different country" which was "united" upon their marriage.
413 Furthermore, despite Dr Draper's suggestion to the contrary, there was no uniformity of view within the Wutha claimants (or at least those of them who gave evidence) as to whether they held any rights in the Body. The Ashwin siblings and other descendants of Sarah Brown made that claim, but no one else did. When Gay Harris was asked "who are the right people for [the Body]" she said "[n]ot me … [n]o I don't go that far". Neither the evidence of Gay Harris or Luxie and Geraldine Hogarth displayed any awareness by them of an association in relation to land and waters or any association at all between their ancestral families and that of Julia Sandstone. That division or split in the Wutha claimants, between the Ashwin siblings and their families (who claimed the Body and the Tail) and the Harris and Hogarth families on the other hand (who laid claim only to the Tail) must have been apparent to Dr Draper. Yet its significance to the issue of whether more than one land-owning group or society existed in the Trial Area pre-effective sovereignty seems to have been inexplicably ignored.
414 Both Drs Brunton and Lynes were critical of Dr Draper's reasoning in many respects including his conclusion, that a single land-owning group held rights and interests over the entirety of the Trial Area.
415 Dr Brunton was strongly of the view that "there were at least two different societies whose members held rights and interests in the [Trial Area] at sovereignty". Dr Brunton opined that it likely that the various groups within the Body "would have been identified with a number of different tribes", and not the "Pini tribe" with which the Tail would have been identified. True it is that Dr Brunton was largely of that opinion because of his view, which I do not consider has been established on the evidence, that non-Western Desert people (including the Ngauwonga and the Badimia) constituted various estate groups within the Body. Nevertheless, Dr Brunton was prepared to countenance the fact that Julia Sandstone may have held rights in the eastern parts of the Body as well as in Areas 3 and 4 as part of a Western Desert tribe. He was clearly of the view that Julia Sandstone and the estate group to which she belonged was distinct and different to the estate groups that, at pre-effective sovereignty, held interests in the Tail or the wider area described by Telpha to Tindale.
416 In a passage which I consider correctly identified one of the central flaws in Dr Draper's reasoning, Dr Lynes said this:
It is my opinion that Draper has failed to fully consider the possibility of local distinction or variation and articulation amongst the various groupings of people comprising the Western Desert Cultural Bloc, as well as failed to recognise the possibility that the whole of the Wutha claim area is and was not covered by one society, but rather is and was covered by two or more societies.
417 A great deal of evidence was received as to whether or not the Body was Western Desert country and whether or not Julia Sandstone was a Western Desert person. Much of that evidence, relied upon by the State, was directed to demonstrating that the Wutha group was not a single group or sub-set of the Western Desert Society. I accept that contention but have done so without the need to determine whether the Body was Western Desert country and despite my view that it is likely that Julia Sandstone was a Western Desert person.
418 On the basis of the available evidence, I am not satisfied that pre-effective sovereignty Julia Sandstone or her ancestors were part of the same landholding group or sub-set of Western Desert Society as that of Darugadi, Billy and Inyarndi or, that the area in which that group had shared rights and interests extended to Julia Sandstone's traditional country. Specifically, I am not satisfied that pre-effective sovereignty, the group or sub-set to which the Darugadi, Billy and Inyarndi ancestral families belonged included Julia Sandstone or that that group held rights and interests in the Body. I turn then to explain why I consider that that conclusion is fatal to the Wutha application.