Traditional Banjima Boundaries
176 Introduction: The parties and the anthropologists, Dr Palmer and Mr Robinson, treat the claim area as having southern, western, northern and eastern boundaries.
177 The southern boundary with the Innawonga/Ngarla is not in contention between the parties. (The "Ngarla" I should note is a shorthand reference to the nearby group whose full name is Ngarlawangga.) Similarly, the western boundary with the Gurama (which I understand is a reference to the group known as the "Eastern Guruma") is not in contention. It is the northern boundary (Fortescue Valley) and the eastern boundary (Weeli Wolli and Yandicoogina) that are put in contention, particularly by the State.
178 The Banjima witnesses gave clear evidence about their boundaries as claimed. I will return to it after first considering what the historical and ethnographic data appears to reveal in each case.
179 Northern boundary (Fortescue Valley): In relation to the northern boundary (Fortescue Valley), the anthropologists noted the following points of agreement between them in relation to the proposition that country north of the Hamersley Range escarpment in the Fortescue River Valley, on what is now Mulga Downs Station, includes areas in which members of language groups other than Banjima once held or now hold customary rights:
The experts agree on the basis of the Banjima evidence at the hearing, as they read it, that there is support for Banjima rights in the Fortescue River Valley in the vicinity of Mulga Downs
The experts agree that some country may be "shared" between groups, including members of different language speaking groups. They also agree that areas may also be contested.
The experts agree that there is ground for concluding that a long deceased man, Toby Dingoman (not a Banjima), may have had traditional rights over some parts of Mulga Downs Station associated with the area known as Nyiya. However, the continuity of those rights to his descendants and the customary bases of such a descent of rights are not demonstrated at this time, and no evidence has been adduced from those descendants and no anthropological field inquiries have been carried out on the topic for the Banjima claim.
180 It will be appreciated that if these points of agreement are accepted by the Court then Banjima people may historically be said to have held native title rights and interests in the Fortescue River Valley in the vicinity of Mulga Downs, although some of that country may have been "shared" with members of different language groups (or other "tribes" to use that loose expression). In this regard, as explained by the anthropologists, sharing of country is not uncommon in border or transition areas.
181 As to the third point of agreement between the anthropologists, that there is ground for concluding that Toby Dingoman (deceased) may have had traditional rights over some parts of Mulga Downs associated with the area known as Nyiya, the point ultimately made is that, whatever the evidence is to support that view, no evidence has been presented in this proceeding to suggest that there are any persons who now claim native title rights or interests in that area through Toby Dingoman. The point is related to the "shared" country point of agreement. Toby Dingoman, who on the evidence is not identified as a Banjima man but would appear to have links to the Yindjibarndi, may have had interests that co-existed with those held and enjoyed by persons who were or are identified as Banjima people.
182 In approaching the question of boundaries the anthropologists agree that distinct boundary lines do not always present themselves in any discussion between different Aboriginal groups over who holds rights and interests in relation to apparently adjoining or proximate areas of country. In some circumstances, particularly where the country of one group begins to run out and the country of another starts, there may well be a basis for concluding that both groups have rights and interests and, in that sense, "share" the area of country. In this regard, it is trite to observe that prior to contact with the British settlers, Aboriginal groups did not use maps to demark the extent of their country and the commencement of the country of another group.
183 Dr Palmer has expressed the view that boundary lines on a map are, however, a familiar concept at least to those with whom he has worked from and including the 1970s. He thinks it likely the existence of maps may have influenced the way in which claimants understand the extent of their country today. Dr Palmer indicated, however, that he did not use any such maps in the course of his fieldwork, preferring instead to allow claimants to discuss their country based on their own understanding of the "language identity of particular areas". He found that the idea of a distinct boundary line, as might be drawn on a map, did not always accord with claimant's views as to how country could be identified by reference to a "language group" association.
184 Dr Palmer (Dr Palmer's first report at [360]) stated that claimants commonly cited mountain ranges as references that marked the transition from one language group identity to another. Similarly, he said, the intermediate area of the Fortescue Marsh was cited as an eastern "boundary" for Mungardu Banjima country. He observed that mountain ranges and marshes probably provided little economic opportunity for hunters and gatherers and, based on this assumption, he thought it reasonable to conclude that such relatively large areas were unlikely to be in "economic" contention. In those circumstances, dominant topographic features covering relatively large areas of country, he considered, can best be understood as "transitional zones" where specific proprietorship was not required to be defined since it was subject to limited use. Dr Palmer considered this intrinsically indeterminate nature of the boundary was supported by comments made by some of those with whom he worked.
185 Before the Banjima claims were combined, Dr Palmer accompanied members of the MIB claim group on several field visits. The data collected assisted him in forming views but did not represent to him a lineal account of a "boundary". Dr Palmer described the data collected in respect of the north-west of the claim area, where he commenced at Hamersley Gorge. He showed the approximate extent of the country that he called the "Fortescue River Banjima" country (see figure 7.1, p 110, first report).
186 He ascertained from his informants that from Yirdimanara (site 80) there were a series of pools in the upper reaches of the West Yule River in the northern Chichester Range and that from Yirdimanara to those pools it was Banjima country all the way to White Springs. He was told that it is then Yindjibarndi to the north-west "on top". One informant, Johnny Parker (deceased), told him that the Yindjibarndi were at Hooley Creek. He was told the tableland and hill country they had crossed from Mulga Downs Station was all Banjima country. Another informant, Brian Tucker, drew a map to show the northern boundary of Banjima country.
187 From the data he acquired, Dr Palmer said it would appear that the MIB claimants held the view that their northern boundary follows the northern slopes of the Chichester Range before turning south on the Chichester Range, south-east of Hooley Station, to run across to Hamersley Gorge.
188 Dr Palmer stated that, consistent with accounts provided by Milyaranba Banjima informants, the Mungardu or Fortescue River Banjima (the MIB group) cited older members of their family or group as the sources of their information on the extent of Banjima country. For example, Slim Parker told him that knowledge had been "handed down from the forefathers" a process he was continuing by teaching young people today. Eric Carey told him that he gained his information about the northern extent of Banjima country from the late Wobby Parker. Eric Carey told Dr Palmer that it was "the old people who put these boundaries", although they were made a long time ago in the Dreaming.
189 Similarly Dr Palmer said Maitland Parker told him that he had been told about Barthangarana (site 19) by Horace Parker (deceased). Other senior claimants told Dr Palmer, he said, that they were taught about their country by the "old people" and they mentioned Herbert, Ginger and Wobby Parker, and Pat and Henry Long, all now long deceased. Brian Tucker similarly told him he was taught these things about the country by the "old people".
190 Dr Palmer also said that during the period of his work with the MIB claimants, senior men made extensive references to the mytho-ritual song cycle called Wardirba. This is sung by senior and ritually qualified men during the latter stages of initiation rituals. Wardirba songs are considered to be spiritually potent and not the product of human ingenuity. In their performance they are a manifestation of spirituality. Without going into detail, Dr Palmer said that he touched on the Wardirba briefly as it was relevant to how the former MIB claimants legitimate, by citing a customary reference, their knowledge of the extent of their Mungardu Banjima country.
191 It is useful to take a moment to consider what the Wardirba is. Dr Palmer (Dr Palmer's first report at [386]) stated there are different Wardirba. Each is understood to embody a signature reflective of both language and a country. The songs encapsulate both the spirituality of the countryside and may be related to specific places. The spiritual ordination of the place is then commemorated through the performance of the song. By dint of this association, he said, a place that may be identified in the Mungardu Banjima Wardirba is considered to lie within Mungardu Banjima country. Command of the songs in ritual practice is also a signal to others of the singer's rights within that country, particularly in relation to the spiritual management of that country.
192 Dr Palmer (at [387]) stated that the identification of places as being within Mungardu Banjima country is sometimes legitimated by reference to spiritual ordination. In his view, according to this belief, the songs of the Wardirba provide the dogma that furnish incontrovertible justification for the attribution of a language-group identity to a place. However, Dr Palmer made the point that not all places he has discussed are identified with Wardirba songs, but those that are substantially bolster accounts of the extent of Banjima country. This is because, in his view, spiritual associations are believed to transcend the mundane, having their origins in realms and times beyond the mortal and the temporal.
193 He also stated (at [388]) that the Milyaranba Banjima also acknowledge their own type of Wardirba. His information in this regard as to the relationship between boundaries, place and this mytho-ritual cycle is more limited since the older Milyaranba claimants are all female and would not be privy to the knowledge held by the men. However, Dr Palmer said he did gain some limited information from Steven Smith that would lead him to conclude that there is understood to be a relationship between Milyaranba and the Wardirba and country which is utilised by this group when relating places to their language group identity.
194 In his assessment, Dr Palmer considered that the accounts of the extent of Mungardu Banjima country were both "comprehensive and consistent". He noted that there appeared to be some variations in view as to the northern extent of Banjima country, particularly in the vicinity of White Springs Station. However, on balance he was of the view that the northern slopes of the Chichester Range would appear to be accepted by members of the group as a boundary. He considered the boundary, as in the case of the boundary identified with the Fortescue River Marsh, confirmed the importance of seeing boundaries as transitional zones rather than hard lines on a map.
195 Mr Robinson (Mr Robinson's first report at [139]), in suggesting a far more contracted northern boundary for the Banjima, significantly relied upon the data apparently provided by one Peter Maiebong (a Banjima man) to Tindale in the 1950s, who is recorded as saying of Banjima territory:
The gorge leading to Hamersley Station from the lower end of Coolawanyah divides the Pandjima from the Kurama, their western neighbours. The northern boundary is the top edge of the northern scarp face of the Hamersley Range; they did not go down into the gorges except near their sources except when they were driven by shortage of water in droughts. There were refuge pools on the south branch of the Fortescue River, at Dale Gorge and at 'Mandjina' (or Mungina Creek of maps). To the north east their boundary extended along the Hamersley scarp to the range across the Fortescue River (South Branch) from the 'Kardaidari' (Goodiadarrie of maps) Hills. Mandjina (Munjina of maps) Pool was a Pandjima water. They went east to the headwaters of Jandikudji'na (Yandicoogina of maps) Creek, their neighbours were the Bailgu. On the south they visited Juno (Juna) Downs Station, Perry's Camp. Their S.W. boundary fell just E. of Mt Samson. 'Mili' mili (Milli Milli Spring) was a Pandjima water 'very permanent'.
At Juno Downs and along the Turee Creek, their southern boundary, they met the 'Inawangga', also said as 'Inawongga'. East of them he knew of the 'Ngarla' or 'Ngarlawonngga' (Ngarlawangga); he only knew of them as names since most of his life he had spent on the Indjibarndi site, having worked in Indjibarndi country since he was a young fellow. The Kurama people were on the northern of Turee Creek, west of Juno Downs and the Inawongga ran west to meet with the Tjururo on Ashburton Downs
This quotation is slightly altered from the original in that the symbol used in the original in the name of the Innawonga and the Ngarla and related expressions has been reproduced here as "ng".
196 Mr Robinson considered this to be a significant statement about the location of the Banjima, coming from a Banjima man and collected near Banjima country. He considered it tells us that the northern Banjima boundary was the edge of the Hamersley Range and that, in one of the passages to which Dr Palmer in his first report did not refer, Banjima people did not go down the gorges except in drought. If accurate, Mr Robinson reasons, this would suggest that traditional Banjima territory did not extend into the Fortescue Valley beyond the Hamersley escarpment.
197 Also of significance for Mr Robinson was Peter Maiebong's further statement, which he said also was not referred to in Dr Palmer's first report, that the neighbours of the Banjima at Yandicoogina were the Palyku (that is, not the Nyiyabarli).
198 Mr Robinson explained that the remainder of the description by Tindale relates to Banjima land in the southern part of the claim area.
199 Mr Robinson observed (at [143]) that immediately after obtaining this information from Peter Maiebong, Tindale records Peter Maiebong's description of Yindjibarndi country, which, as far as the eastern portion has relevance to this proceeding is concerned, was as follows:
The eastern boundary Injibandi lies between the Wangkalka and Marana Pools on the Fortescue River, about 10 miles west of 'Kudaidari (Goodaidarrie Hills). Marana is just west of the position of Mundanulladje Pool (of maps) and 'Wangkalka is the Waldthboothamunna Pool of maps. A younger man said that he thought [Waliwarani] Pool was the boundary of the old Kawa:ra Station. I could not find these places on my map and the more detailed search with Old Peter yielded the here accepted version. My informant's comment was that the map names were ones given by Bailgu people. The real name of Mundanulladje is 'Malandji:na. Idimanara (Eera Baranna of maps) Pool on Hooley Station is in Injibarndi country; north east of here is a rough range and nobody goes there; beyond is Njamal tribe territory with which they here have a limited common boundary. White Springs H.S. is Njamal territory…
200 Mr Robinson considered that Tindale's "Marana Pool" is the same place as Maddina Pool (the "r" and the "dd" producing similar sounds), approximately 20 km north-north-west of the current Auski roadhouse. "Waldthanboothamunna" is located on the Fortescue River approximately 20 km north-east of Auski roadhouse. Considering both descriptions together, Mr Robinson reasoned that the Fortescue Valley, including Mulga Downs up to a point north of the present Auski roadhouse, was traditional Yindjibarndi country. He considered, therefore, traditional Banjima country was on the Hamersley Plateau although some movement down into the Fortescue Valley might have occurred in search of resources, particularly for water.
201 Mr Robinson considered that Tindale accepted Peter Maiebong's information as reliable as it matches the placement of the Yindjibarndi and the Banjima on his 1974 map; whereas if he also had accepted information provided to him by an unidentified "younger man", the eastern boundary of the Yindjibarndi would have been 20 or 30 km further east near Cowra. At the time Tindale spoke to Peter Maiebong, Robinson estimates Maiebong would have been about 55-60 years of age and, according to his genealogy taken by Tindale, would have been a descendant of an unnamed Banjima couple (who, on further analysis of Dr Palmer's genealogies filed in the Court, would appear to be Nyathaba and Gudara, both of "Hamersley Range"). Peter Maiebong would also have been the grandson of the estimable Bob Tucker Wirilimura. All in all, Mr Robinson considered Peter Maiebong may be considered a knowledgeable informant to whose account weight should be attached.
202 Mr Robinson also had regard to information provided by a Gurama man, Tumbler, who was living on the Roebourne reserve in 1953 and told Tindale that Yindjibarndi lands include "Mulga Downs to E of Wittenoom", and that the Palyku did not come very far west of the salt bush plains, which Mr Robinson considers matches what Peter Maiebong had told Tindale. Rather, Tumbler indicated that the Banjima had a boundary along the range through Coolawanyah, Mt Florance, Wittenoom to Mulga Downs
203 Mr Robinson noted, however, that Brandenstein, working in the mid-60s in the linguistic field, produced a map of the language situation in the Pilbara which was noticeably different from Tindale's 1970 format. He locates the Banjima over a considerably larger area than Tindale and provides a location extending north of the Hamersley Range. Mr Robinson noted that Brandenstein positions the Yindjibarndi north of the Banjima while the Palyku are displaced as neighbours and placed east of Roy Hill. The Nyiyabarli are placed by Brandenstein on the upper reaches of the Fortescue as eastern neighbours of the Banjima.
204 Mr Robinson stated that Brandenstein does not reveal how he arrived at this language distribution. However, he suggested that Brandenstein's text suggests a degree of "territorial dynamism". Mr Robinson referred to Brandenstein's note that a considerable number of Palyku were "enticed away from their home grounds around Nullagine to replenish the dwindling coastal tribes" as labour in the pearling industry. He also commented generally on movement away from homelands to towns and other centres.
205 Mr Robinson also noted what he considers to be an "intriguing entry" in Brandenstein's paper of the word "Marduiidja", which Brandenstein says is a place name referring to "the lowlands of the upper Fortescue River". Mr Robinson noted that the word is nearly identical to the title of the MIB claim, except that the MIB appear to be using it to describe a group, while Brandenstein says it is a name for a place or locale. Brandenstein, he says, positions Marduiidja upriver from claimed Banjima land and north-east of Mt Newman. In a footnote, he says, Brandenstein explains that the term is a "non-tribal designation of the Upper Fortescue flats between Roy Hill and Jigalong", often used with reference to the origin of rites and songs - a "ritual and landscape term".
206 Mr Robinson also said Brandenstein identified two dialects of Banjima, although he does not refer to either of them by the name Marduiidja. Mr Robinson said that Brandenstein's location of groups seems to have been influenced by Tindale's earlier (1940) map, to which it bears some similarity, and opined that it may be that Tindale's original positioning of the Banjima overlying the Fortescue River influenced Brandenstein to position them there as well. Brandenstein, he said, does not say how he arrived at this location. Mr Robinson noted that Brandenstein's paper was written a few years before Tindale's book was published and, by that time, Tindale had come to a quite different view about where the Banjima were situated.
207 Mr Robinson also referred to the work of the linguist, Dr Dench, who in a map in his thesis places the Banjima on the Hamersley plateau, and situates them south of the Fortescue River extending to the Hamersley escarpment, but not beyond to the Fortescue Valley. He shows the Nyiyabarli as their eastern neighbours, the Palyku as their north-eastern neighbours and the Yindjibarndi as their north-western neighbours
208 Mr Robinson noted that, in an earlier paper, prior to his thesis, Dr Dench reported that the traditional lands of the Banjima lay "in the tablelands of the Hamersley Range and includes the gorges along the Hamersley scarp".
209 Mr Robinson also noted heritage surveys conducted since the 1970s in relation to large-scale mining developments, in particular, in relation to Aboriginal heritage, including under the Aboriginal Heritage Act 1972 (WA), as well as surveys conducted since the passage of the NTA. He noted that Dr Palmer had been responsible for a number of these surveys.
210 Dr Palmer dealt with the Tindale data both from 1953 and 1974 in his first report as well as in his first supplementary report. In his first supplementary report Dr Palmer reproduced Tindale's map of Banjima country collected from Paddy Jones in May 1953 and from Sambo Jawambang in 1953, as well as another map collected from Roy Mackay in May 1953. Dr Palmer doubts the suggestion made by Mr Robinson in his first report that the "Paddy Jones" map was drawn by Paddy, with Tindale adding the names of places and features, on the basis that there is no basis to so conclude. Dr Palmer notes the map shows the northern boundary of the "Pandjima Tribe" lay well to the north of the Fortescue River upon which both Coolawanyah and Mulga Downs Stations are located. Millstream, Mt Florance, Hooley, Yandeyarra, Abydos and Woodstock Stations are all shown to the immediate north of the boundary. Dr Palmer said this raises the question of how Tindale was able to record in his 1974 work that the boundary followed the northern scarp of the Hamersley Range. That finding was clearly at odds with the field data he collected from Paddy Jones.
211 Dr Palmer suggested that one possible explanation, which could be developed from the map, is that Tindale originally had the Hamersley Range to the north of Coolawanyah and Mulga Downs. This has been crossed out by repeated hash strokes on the map. Perhaps, and Dr Palmer accepted this is speculation, Tindale read the map in his notes and recorded the boundary incorrectly when preparing his publication, later to realise his mistake and correct the map but not the text of his 1974 publication.
212 As to the "Sambo Jawambang" map, Dr Palmer noted that Tindale shows Yindjibarndi country to include the Fortescue River valley through Coolawanyah to just north of Wittenoom and the Hamersley Range, south of which he marks "Pandjima Tribe". In Dr Palmer's view the map appears to have as its focus country well to the north of the claim area and shows only an approximation to geographic accuracies. Thus, Yandeyarra is shown just north-west of Coolawanyah, which is incorrect.
213 Dr Palmer also noted that Tindale wrote in the same set of notes that "Niabali waters all run to Fortescue River from Jiggalong [sic] west to headwaters of Fortescue. West is Pandjima country". Dr Palmer says this contradicts his map based on information gained from Sambo - unless Tindale was uncertain of the geography.
214 Dr Palmer also noted that Tindale recorded that according to one informant "Niabali Tribe = Balygu" and that "Pailgu = Niabali country. Balygu & Niabali same talk. Balygu = Parlgu live on NE side. The boundary was at Soda Creek 10m S of Bonnie Downs. Niabali were large lot. Balygu were small lot". Dr Palmer said that on the map he then produced Tindale has the annotation "Balygu (formerly Niabali use different but…". Dr Palmer said his copy does not allow him to read the rest of the note. However, he considered the apparent equation of Nyiyarbarli and Palyku may account for the absence of the latter in the earlier literature.
215 As to the map collected by Tindale from Roy Mackay shortly prior to his work with Paddy Jones, Dr Palmer noted that the map shows the Banjima extending north as far as Yandeearra and the Yindjibarndi extending east only as far as Mt Florance. Tindale wrote the following comment under the map:
Banjima coming from Hamersley Range drove Balygu out of Mulga Downs before white times.
Thus, Dr Palmer noted, according to this account, the Palkyu were at some indeterminate time prior to white settlement in possession of Mulga Downs (not the Yindjibarndi) and then, but before white settlement, the Banjima displaced them.
216 In this context, Dr Palmer came to Peter Maiebong's account as collected by Tindale. Dr Palmer noted that he discussed this account in his first report but also recognised Mr Robinson's comments that some quotations were truncated in his earlier account of the data. However, Dr Palmer was at pains to point out that he did explain in his first report that what Peter Maiebong had told Tindale apparently was consistent with the way Tindale drew his boundary in his 1974 map, which was different from his earlier 1940 view that the Banjima were on the eastern portion of Hamersley Range about Mulga Downs.
217 Dr Palmer acknowledged that Peter Maiebong's account of the eastern boundary of the Yindjibarndi in the Fortescue River puts the boundary of the Yindjibarndi a short distance east of the present position of the new Great Northern Highway, and this is reflected on Tindale's 1974 map.
218 As a result, Dr Palmer said Tindale then had a number of accounts of "boundaries" relating to the Banjima "tribal territory", some of which were contradictory. Dr Palmer said why Tindale chose to accept Peter Maiebong's view over that provided by Roy Mackay or Paddy Jones in his 1974 map is not explained. Why should he have accepted that later account, Dr Palmer asked, when others had earlier said that the country west of the Nyiyabarli was Banjima? Dr Palmer said that, while Mr Robinson is of the opinion that Peter Maiebong's views should be accorded weight, Tindale would have provided a fairer representation of his field data had he admitted the contrary views of his informants, but he chose not to do so.
219 Dr Palmer suggested that one possible explanation as to why Tindale privileged one informant over another is that Peter Maiebong was telling Tindale about the northern boundary of the "Top End Banjima", but, whatever the reason, the contradictions inherent in Tindale's data render his 1974 map suspect. Dr Palmer suggested a second explanation may lie in the fact that Tindale attempted to reconstruct boundaries as he speculated they might have been prior to European settlement, which may have led him to choose the views of one informant over another (something discussed in Dr Palmer's first report at [189]).
220 Dr Palmer, nonetheless, considered that Mr Robinson has regarded the arguments of his first report carefully and fairly. Dr Palmer considered that, overall, Mr Robinson is of the view that, while he agrees that Tindale should be treated with caution, this does not mean setting him aside altogether. Dr Palmer agreed with that position and said that is the very reason why he discussed his findings in his first report and amplified his account in the first supplementary report. He considered the difference between Mr Robinson and himself is perhaps that Mr Robinson gives Mr Tindale more weight than he considered appropriate and is thus more inclined to accept that perhaps the Palyku (but apparently not the Yindjibarndi, despite the Tindale materials discussed above) were in the Fortescue Valley.
221 Dr Palmer said that, in completing his review of Tindale and the additional research and comments provided by Mr Robinson, he made four points:
The Tindale material contains contradictions as outlined above, which Mr Robinson downplays. Dr Palmer would like to understand better how Tindale decided upon which version he should finally adopt and publish. In publishing only one part of his field data he did not represent the ethnographic reality as he found it on the ground involving Banjima, Palyku and Yindjibarndi.
Tindale was attempting in his 1974 work to reconstruct pre-sovereignty boundaries. Yet he noted that the Banjima moved into Mulga Downs (north of the Hamersley scarp) before the time of white settlement. If this was so, then it is possible that this was country possessed by members of the Banjima language group prior to sovereignty.
The account of "tribal" boundaries is plagued by uncertainty about how people may have identified in terms of a language group identity in the past. This is a matter discussed at length in his first report (at [177]-[178] and [437]-[445]), and one he has discussed again in his first supplementary report. In Dr Palmer's view, the focus on "tribes" as land owning groups involves acceptance of a false premise and is consequently misleading. It is one of the reasons why Tindale needs to be treated with caution.
While Dr Palmer said he did take into account Tindale's views, he also took notice of what the claimants and those with whom he worked told him. Dr Palmer said that, as Mr Robinson pointed out, knowledge is passed down through an oral tradition and while he fully explored Tindale's views, he also considered the claimants views were more likely to be accurate than Tindale's.
222 Both the anthropologists also had regard to evidence that was given in the earlier determination of this Court in what the anthropologists call the "Daniel claim" (a reference to the proceeding that culminated in Daniel 2003(1)).
223 Mr Robinson (Mr Robinson's first report at section 4.1.2) referred to evidence from the Daniel claim and suggested that the evidence given bears on the question of Yindjibarndi occupation of the Fortescue River. Mr Robinson said (at [200]) that the judgment in the Daniel claim (at [97]) noted that:
Not all the traditional Yindjibarndi country to the south of Hooley Station is the subject of this claim. As a result, the claim area is well within the southern traditional boundaries asserted by the Yindjibarndi people.
He also noted that the Court in the Daniel claim (at [129]) went on to find:
That the northern escarpment of the Hamersley Range marks the southern boundary of Yindjibarndi country is generally consistent with the evidence of the claimants and I so find.
224 Mr Robinson noted that the late Woodley King, one of the primary Yindjibarndi witnesses in the Daniel claim, said that Yindjibarndi country went "far, far on, all the way in that way" from Cheedy Station towards Wittenoom. He also noted that Cherrie Cheedy said Banjima country was "on the other side of Hamersley [Ranges] I think". Additionally, the late Guiness Gilbie, who had lived at Mulga Downs Station at one point, testified that "Hooley Yindjibarndi country, Mulga Downs Yindjibarndi country".
225 Mr Robinson said there was also evidence that Yirdiminara marked the south-eastern boundary of Yindjibarndi country, although he acknowledged it did not address the extent to which Yindjibarndi interests might exist along the Fortescue or the Hamersley escarpment to the south-west.
226 Mr Robinson also noted that he gave evidence in the Daniel claim to the effect that the southern boundary of Yindjibarndi country lay along the northern and eastern escarpments of the Hamersley Range, referring to the fact that he had been told that some Yindjibarndi people claimed that Yindjibarndi country went as far as Auski roadhouse. He said this was consistent with information given to Tindale by Peter Maiebong.
227 Mr Robinson expressed the opinion (Mr Robinson's first report at [208]) that it is possible that there were overlapping interests in this part of the claim area, given its position and resources. He thought it may be a case where people of the lowlands were joined by the Banjima "in the pursuit of the resources" or where "bands made up of members of this group foraged over the same country with permission". (I understand Mr Robinson's "bands" to be groups like the "residence groups" discussed above.)
228 On the other hand, Mr Robinson noted that comments made to Tindale that there was animosity between the Banjima and the Palyku suggests that there was conflict between the groups. He acknowledged, however, that this was not necessarily an "either/or situation"; there might have been a degree of conflict and co-operation over resource use as well. Mr Robinson further noted (at [210]) that the literature did not establish that the Banjima exclusively held the land north of the Hamersley Range at sovereignty and it is possible that this was an area of shared resources. But it is also possible that Banjima connection to that part of the claim area occurred in the post-sovereignty period, or at least that there was a transformation of prior sharing and co-operation arrangements towards ownership by a process akin to succession.
229 In this regard, Mr Robinson noted that in a heritage survey conducted by Stephen Brown in 1983 it was stated:
The area of land for which the Pandjima are currently spokesmen extends to Munjina Gorge and across the Fortescue Valley to the foothills of the Chichester Ranges. It is difficult to ascertain whether, immediately prior to European settlement, Pandjima people occupied these latter areas or whether they gained rights as spokesmen for them following settlement on Mulga Downs station.
230 In respect of the evidence from the Daniel claim and the other data here noted, Dr Palmer agreed that, on the basis of Mr Robinson's presentation of the materials taken from the transcripts of the Daniel claim, what he suggests was said is so. But Dr Palmer (in his first supplementary report at [62]) said that the evidence from those with whom he has worked would appear to be at odds with the evidence from those with whom Mr Robinson has worked, some of whom gave evidence in the Daniel claim. He assumed also that the evidence provided to the Court did not have "the benefit of any input from Banjima witnesses". He assumed further that the evidence Mr Robinson himself gave was without the benefit of data gathered from any of the Banjima claimants.
231 Dr Palmer noted that in considering contradictory evidence, Mr Robinson suggested that it may flag a dispute over country. He noted Mr Robinson accepted that the Fortescue Valley north of the Hamersley Range may have been "an area of shared resources", but that he adds it is also possible the Banjima came to the area post-sovereignty. Dr Palmer stated that, from his reading of what Mr Robinson stated, he found him to express "considerable lack of certainty about the identity of the language group who for the most part occupied the Fortescue Valley in the vicinity of Mulga Downs at the time of sovereignty".
232 Dr Palmer further stated that, interestingly, had Tindale been less selective over his use of his field data, he too might have come to the same conclusion.
233 While Dr Palmer also accepted that the Daniel claim evidence lends support to Tindale's 1974 placement of Yindjibarndi and Banjima boundaries, as stated by Mr Robinson, the Daniel evidence does not lend support to those parts of Tindale's data that appear to demonstrate that members of the Palyku language group had interests in that area. Accordingly, Dr Palmer said consideration of the Tindale materials requires that all of his data be considered and not just his 1974 published account.
234 Dr Palmer also referred (Dr Palmer's first supplementary report at [66]) to the conference between himself and Mr Robinson in March 2011, when the issue of the northern boundary was discussed. Mr Robinson then made reference to a field trip that Dr Neale Draper had undertaken in recent times with members of the Banjima and Yindjibarndi language groups, and confirmed that the trip had taken place and that material had been collected that might be relevant to their consideration of the northern boundary issue. He had not viewed this information, however, although he was of the view that consideration of that data might assist in formulating his view on the matter.
235 It was in this context that the anthropologists thus recorded their points of agreement about the northern boundary (Fortescue Valley) that, in summary, included agreement between them that, on the basis of the Banjima evidence, as they read it, there is support for Banjima rights in the Fortescue River Valley in the vicinity of Mulga Downs; that some country may be "shared" between groups, including members of different language speaking groups - but that areas may also be contested; and that there is ground for concluding that Toby Dingoman may have had traditional rights over some parts of Mulga Downs Station associated with the area known as Nyiya, but there was no evidence that any of his descendants asserted any claims presently.
236 In the joint report Mr Robinson confirmed it was his view, based upon the anthropological literature, that it was likely that Yindjibarndi and Palyku people occupied and held land north of the northern escarpment of the Hamersley Range at sovereignty. He also pointed to evidence from the Daniel claim. Additionally, he referred to material from his own research for the Daniel claim. But he confirmed that, in his opinion, it was not possible to say whether these lands were held exclusively or were shared and that he remained of that view.
237 Dr Palmer, acknowledging the data on which Mr Robinson expressed his views, noted in the joint report that his problem lay with the emphasis in all accounts on boundaries and tribes. He again noted how it may be that members of a language group, other than the Banjima, may have asserted rights to the Mulga Downs area. He confirmed his earlier view that, if such rights were based on ritual status, they would not be transmissible. Dr Palmer also confirmed that he agreed with the views expressed by Mr Robinson, by reference to what Radcliffe-Brown had said on the matter, how "boundaries" can provide an impediment to a proper understanding of customary systems of land tenure. In particular, he accepted that areas on the borders of country may have been the subject of use and occupation by members of more than one language speaking group, as Radcliffe-Brown had noted as early as 1912-13.
238 Dr Palmer also accepted that, in the event that there was evidence that there is a descent of rights according to a customary system for the descendants of the late Toby Dingoman, this could support the conclusion that the descendants of that man may share rights in the Mulga Downs area with the Banjima claimants.
239 In the concurrent evidence session Mr Robinson confirmed his views and indicated that he considered the data he referred to left "unanswered questions". As an anthropologist, he felt he was unable to draw a firm conclusion about the northern boundary area. He considered he would merely be speculating if he were to do so.
240 By contrast, during the concurrent evidence session Dr Palmer considered that the evidence was sufficient to develop an understanding of the customary system of the "relationships of rights" in that boundary area. He thought the problem may be that Mr Robinson was seeking "definitive certainty about the nature of bounded groups", when that is not possible.
241 Dr Palmer added that the implication of that is that the naming of language groups in relation to boundaries is, to his mind, a misunderstanding of the way the systems work, and that while there were necessarily exclusive rights in areas that could be bounded by a hard line drawn on a map, this is not necessarily reflective of the complex inter-relationship of rights that operate. Thus, he was prepared to go further than Mr Robinson and provide that as an explanation as to why there is an apparent difficulty in agreeing the northern boundary.
242 Mr Robinson said in the concurrent evidence session that the disagreement between him and Dr Palmer was not concerning the understanding about the systems that might operate in boundary areas, as explained by Radcliffe-Brown. Mr Robinson thought both he and Dr Palmer agreed that, in essence, when you come to consider people's relationships to country, the answers are to be found, essentially, in genealogical matters, and matters of kinship and who belongs where are first and foremost, rather than in group labels.
243 Mr Robinson expressed the concern (which the Court particularly understood to be made in relation to the descendants of Toby Dingoman) that the evidence "points in the direction of there being people and families who have rights under traditional laws and customs to that area. That's the first question. The question of which bounded group or which named group they might belong to, I think, is a further question".
244 Mr Robinson added that, in the first instance, as an anthropologist, his concern was that there were assertions being made that certain people have rights and interests in that part of the country, and that those interests may be overlapping or contested or shared, but we do not know. He said:
… that's my difficulty: there's not enough information, I don't believe, to reach a concluded view about that, if it is, indeed, a question of reaching a decision about whether one group has superior claims to another, because it may, indeed, be the case that lots of groups or individuals have varying kinds of rights and interests. But we don't know the answer to that because we don't have enough information.
245 Dr Palmer, in dealing with that view, emphasised in the concurrent evidence session that the point he had in mind in relation to what was written in the points of agreement section of the joint report concerning the northern boundary was that the customary system of the claimants for gaining rights to country involves the exercise of choice and there have to be other requirements for people to realise and achieve rights to country, particularly in cases of mixed marriages, marriages between members of one language group and another, and the like. Thus, for Dr Palmer the question of genealogical descent is one thing but that does not necessarily mean that a person who is descended from Toby Dingoman today asserted rights in a particular area of country.
246 Dr Palmer emphasised that there are many circumstances where people have left a particular side of their family behind and have gone on "my father's side", or "my mother's side", in relation to a different country. In relation to those possibilities, Dr Palmer agreed that there was no information upon which he could form a view as to whether that was what had happened in this case in relation to any descendants of Toby Dingoman.
247 Mr Robinson considered that the points made by Dr Palmer in this regard were "very much my point", that is to say, "that we don't know". As a result, Mr Robinson did not see how he could form a concluded view about the matter; he considered there was a gap in the evidence.
248 At the hearing of this proceeding the question of Dr Draper's meeting in 2008 involving both Banjima and Yindjibarndi people was raised. This evidence, and also other evidence in the proceeding, highlights that no Yindjibarndi people have come forward to dispute the claims made by Banjima people that Banjima people have rights and interests in accordance with Banjima traditional law and custom in the northern boundary (Fortescue Valley) areas in relation to which Mr Robinson has raised the possibilities that the Banjima may not at sovereignty have had rights or that, if they did, they may have been "shared" with other language groups, such as the Yindjibarndi.
249 The claimants submit that a detailed analysis of the evidence concerning the northern boundary given by key Aboriginal witnesses supports the following propositions:
That a Banjima connection to the entire northern section of the claim area at sovereignty is strongly supported by the evidence of all of the Aboriginal witnesses in the proceeding, being the children and grandchildren of Banjima apical ancestors living in the claim area at the time of effective sovereignty, as well as from a broader "jural public" which included Yindjibarndi, Nyiyabarli and Palkyu people. There was also evidence that the connection of Banjima people to the area was legitimated by reference to the Wardirba law associated with the Fortescue River. No witnesses were called to contradict their evidence and there is no competing claim by other Aboriginal people as claimants or as a respondent party.
The early ethnography is generally unhelpful to the Court on the question of whether Banjima occupied the northern portion of the claim area at sovereignty. That ethnography should not be accepted to the extent to which it is inconsistent with the evidence of Aboriginal witnesses, many of whom were born in the 1940s and 1950s and whose parents were alive and living on Mulga Downs at the time Tindale collected his material at Mt Florance in 1953.
The hearsay evidence from deceased Yindjibarndi people largely supports Banjima connection to the claim area and in particular supports locations such as Mt King and Yirdiminara as boundary markers.
To the extent that the hearsay evidence from deceased Yindjibarndi was that an area known as Nyiya west of a line from Mt King to Yirdiminara was Yindjibarndi/Banjima mixed and associated with the family of Toby Dingoman, it is not inconsistent with the evidence of the Aboriginal witnesses, understood in the context of the expert report of Dr Palmer regarding boundary evidence and transition zones.
To the extent that some of the hearsay evidence may suggest that Yindjibarndi country went further east than this imaginary line from Mt King to Yirdiminara, the evidence can be given little weight as it is in the nature of hearsay on hearsay, contains internal contradictions and ambiguity, potentially confuses the country the law travelled through, with language group boundaries, and was provided late in the proceeding after the taking of evidence of Aboriginal witnesses. It should not be accepted as outweighing the evidence of the Aboriginal witnesses in the proceeding to the extent that it is inconsistent with that evidence.
250 The State commenced their submissions challenging the extent of Banjima country on the northern boundary on the basis that Aboriginal history post-sovereignty is "replete with examples of the movement of Aboriginal peoples into country not theirs earlier". Thus, the State placed particular emphasis on the early ethnographic record and the opinion of anthropologists, and rather less on the evidence of the Aboriginal witnesses.
251 The State also placed particular weight on evidence "about the move of Bob and Jacob Tucker" (this being a reference to the apical ancestor Bob Tucker Wirilimura and his son, Jacob) from Bottom End to Top End in the vicinity of Mulga Downs.
252 The State also raised the rule in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel), contending that there are witnesses who would have been expected to be called (both in relation to the northern boundary and the eastern boundary) by the claimants, but who were not, that the evidence from the witnesses would have elucidated a relevant matter, that the failure to call the witnesses was unexplained, and therefore the Court should draw an inference that the evidence of the witnesses would not have assisted the party.
253 Thus, in relation to the northern boundary in the Fortescue Valley from Mt Marsh to Manjangu (site 74) the State contend that the ethnography shows that the eastern half of the Fortescue Valley was previously said to be Palkyu by Tindale and that the failure of the claimants to call a person of Palkyu descent is a matter going to onus; as is Dr Palmer's "failure to examine Balgu (Palkyu) descendants".
254 Similarly, the State said that some of the claimants' witnesses said that the Banjima had a common boundary with the Kariera, and that there was an onus on the claimants to lead evidence from reliable Kariera sources of the boundary and Dr Palmer was "obliged to enquire" and did not.
255 The State additionally submitted that the Wardirba does not mention any place in the Chichester Ranges and so this does not legitimate that area being Banjima country.
256 As to the western portion of the Fortescue Valley, the State said that connections with the Yindjibarndi are here raised. It particularly refers to the evidence from the Daniel claim that Mr Robinson regarded.
257 The State again said that the failure of the claimants to call any Yindjibarndi person to deal with the questions raised should count against them, as should Dr Palmer's failure to "interrogate any Yindjibarndi person and, until pressed by Mr Robinson … to address the historical and anthropological literature". Indeed, the State expressly submitted that the report by Dr Palmer should not be accepted in this respect because:
He converts the earlier anthropological finding that "the country of the Pand'ima lies to the south of the Fortescue River" into the proposition that the Banjima were located "in upper Fortescue River…".
His attack on Tindale is "not balanced".
258 The State in their written closing submissions (at [271]-[280]) raised particular submissions about what the evidence shows or does not show. For example, that the Wardirba does not mention Pigeon Camp and so does not sanction it as a boundary marker. That Yindjibarndi were recorded on Mulga Downs. That Alec Tucker indicated that at the time Bob Tucker Wirilimura went to Mulga Downs there were already Nyiyabarli and Wyloo in the native camp on Mulga Downs and, prior to then, he had no rights at Mulga Downs. That Mulga Downs residents included Yindjibarndi, that some witnesses who lived at Mulga Downs were only taught about the Top End area. That the late Mr K Jerrold was Yindjibarndi and the evidence given suggested evidence of the Yindjibarndi being driven out of Mulga Downs. That the Nyiyabarli and Banjima were always in the Fortescue together. That Bugertman Wally was Yindjibarndi. That a drawing made by a deceased Yindjibarndi elder, Yilbi Warrie, in 1997 shows Youngaleena as Yindjibarndi and the Marduthunera places in the Fortescue closer to the coast. That Yilbi Warrie was a direct descendant of Toby Dingoman. That the affidavits received into evidence of the late Pixie Christian, Wobby Parker and Herbert Parker do not establish that the area or all places in it are Banjima country.
259 The State said that a Jones v Dunkel issue also arises in that a direct descendant of Toby Dingoman could have been called by the claimants to give evidence but was not.
260 The State also said that given the status of the Wardirba law and the failure of the evidence to disclose particular places east of Barimuna, "the Court should find that the claimants have failed to prove, even on their own law, that Banjima country extends east beyond Barimuna". Similarly, that because the most westerly place in the Fortescue Valley mentioned in the Fortescue Banjima Wardirba is Bowilinha Claypan, the Court should find that "even on their own law, land west of that, including Pigeon camp is not Banjima land".
261 The State placed particularly emphasis on the early ethnographic record and the analysis made of it by Mr Robinson.
262 Lastly, the State said the story of Bob Tucker Wirilimura's move is the most important of lay evidence and referred in particular to the evidence of Alec Tucker, one of the most senior Banjima men, which it is said was not contradicted on this issue and was to the effect that:
The Banjima started out all together in Juna Downs
Some went to Mulga Downs to become "Pantikurra" while others stayed and become "Milyaranba".
At the time of the move Bob Tucker's sons were born.
Upon the move Jacob Tucker "started his family off in Mulga Downs".
Alec Tucker does not say that Bob made the move but that Jacob did.
But Alec says that Bob Tucker Wirilimura moved from Juna Downs to Mulga Downs. This is when the sons moved. The evidence would suggest that this was in the early twentieth century.
Wirilimura took his ritual gear with him and that act is a reason why Alec Tucker now has rights in Mulga Downs.
Alec Tucker implies that a "brand" was created to the Pantikurra, which the State submits was a "newly formed" group.
The Pantikurra had no rights at Mulga Downs before that time.
263 The Pastoral respondents submitted that the evidence of Banjima witnesses concerning the northern boundaries is not cohesive or united and that no less than five alternative formulations of the northern boundary of Banjima country were given, being somewhere within or to the south of Mulga Downs pastoral lease, the cadastral boundary of Mulga Downs pastoral lease, somewhere between the Mulga Downs pastoral lease boundary and the formal boundary on the amended form 1 application, the formal boundary itself, or somewhere beyond the formal boundary.
264 The Pastoral respondents submitted that there is compelling evidence indicating the northern boundary of traditional Banjima country is somewhere within or to the south of Mulga Downs pastoral lease. Reference is made to Tindale's 1974 map, the transcript in the Daniel claim, notes recorded about the Banjima in the late 1990s and the evidence of Alec Tucker concerning the migration of Wirilimura from Juna Downs to Mulga Downs. In this the Pastoral respondents relied on the State's written closing submissions.
265 The Pastoral respondents submitted that the only proper construction to be placed on the inconsistent evidence was that the northern section of the formal boundary is a post-sovereignty construct. That is to say that it does not reflect the sovereignty boundaries of the Banjima people.
266 Finally, the Pastoral respondents said that whether or not a determination of native title is made by the Court, there is an insufficient evidentiary base to include the land covering the Mt Florance and Hooley pastoral leases as part of any determination.
267 In considering the submissions made, particularly those of the State challenging a Banjima connection in the area of the northern boundary, it is necessary to have regard to the whole of the evidence given by Aboriginal witnesses and to take account of context before drawing conclusions. It is well understood that in any neighbourhood, community or society there may be a range of opinion about such things as the extent of land or country. It may also be accepted that some individuals will be more precise or brief, some more general and expansive, that some may be dry and others more colourful in the giving of their evidence and that some speak very much from their own perspective. It is by reference to the whole of the evidence, as well as the general status and level of appreciation, and sources of knowledge and perspectives, of witnesses that become important in this process. It is also important to understand evidence in context; what is said, what is not said.
268 A number of the claimant witnesses who gave evidence about the northern boundary were from the Parker family who acquired knowledge from the old and now deceased men Wobby Parker and Horace Parker. The evidence of witnesses such as Archie Tucker, Maitland Parker and Timothy Parker was to the effect that Mulga Downs was and always had been Banjima and that they had never heard of it being Yindjibarndi country. Dawn Hicks, who lived in Wittenoom amongst the Banjima, Gurama and Yindjibarndi people considered that that area was Banjima.
269 Slim Parker, in his witness statement, referred to many of the senior Yindjibarndi people, including those such as the late Woodley King, Mr K Jerrold, Guiness Gilbie and Yilbi Warrie and said he had never heard any of them say that Mulga Downs was Yindjibarndi country.
270 Significantly, the evidence indicates (leaving aside Wirilimura for the moment) that claimed apical ancestors Whitehead, Yinini (Arju), Maggie Nyukayi, Sam Coffin and George Marndu are Banjima with connections under traditional law and customs to areas to the north of Hamersley Range, including Mulga Downs Station. In that regard, Whitehead was the mother of Herbert Horace and Wobby Parker (the latter being the father of the witness Dawn Hicks). Slim Parker, Margaret Rose Parker and Maitland Parker say that her country was Mulga Downs. Dawn Hicks says Flat Rock, a special women's place near Barimuna, belonged to her.
271 Arju was the daughter of Yinini. She was the mother of Nina who was married to Percy Tucker (and is the mother of Gladys Tucker and grandmother of Mervyn Smith and Steven Smith). Arju was born at Milyambri, as explained by Marie-Anne Tucker.
272 Maggie Nyukayi was the mother of Carey Andrews, who was born at Cowra. Carey Andrews' grandson, now deceased, participated in the men's evidence at Hope Downs in April 2008. Maggie's son, Richard Simmons, was the father of Trevor Parker, who led the men's restricted evidence during one of the hearings.
273 Sam Coffin was shown by the evidence to have a special place at Wadugara. He lived at Mulga Downs, according to the evidence of Gladys Tucker, and was buried near Mulga Downs Station homestead, as explained by Dawn Hicks (as explained below he may be accepted as a Banjima person).
274 Marndu was said by Alec Tucker to be boss for the law at Mulga Downs.
275 As to Bob Tucker Wirilimura, many witnesses said he belonged to Mulga Downs, for example, Charles Smith, Marie-Anne Tucker and Mrs J Injie.
276 There is also evidence to show that Mt King was a boundary marker between the Banjima and the Gurama: that of Mr G Tucker and Archie Tucker.
277 The evidence of Maitland Parker and G Tucker supports the view that water flowing out of Hamersley Gorge into the Fortescue Valley marked the divide between Banjima to the east and Yindjibarndi to the west.
278 Timothy Parker said that he was told by the late Yindjibarndi elder, Woodley King, that the South Fortescue flowing to Pigeon Camp was the boundary in his Banjima country. That Mr K Jerrold may have had a traditional connection to this place may be accepted, but plainly that arises through his Banjima ancestry, and so strengthens, not reduces, the Banjima connection to the area.
279 Slim Parker and Maitland Parker said that the late Cheedy Ned, a Yindjibarndi elder, had referred to Mt King (Burrana) as a marker for the north-eastern boundary of Yindjibarndi country - and did so as recently as 2008 at a meeting at Windamurra.
280 There is also a map produced by Mr H Parker (now deceased) showing Rio Creek as a boundary marker in the Hamersley Range.
281 Yirdimanara - a series of springs in the Chichester Range was identified by many witnesses as a boundary marker between Banjima and Yindjibarndi. Slim Parker said his uncle was born there. Dr Palmer said when he was taken there in the course of his fieldwork, J Parker (deceased) and Maitland Parker greeted the country and collected bush foods.
282 Again, the late Cheedy Ned is said to have observed on a number of occasions that Yirdimanara (Ngurrbanha) was a boundary marker for Yindjibarndi country, including at the 2008 meeting.
283 Alec Tucker was also recorded by Mr Robinson as having told him that Mulga Downs is Banjima country and the boundary is Yirdimanara.
284 The late Woodley King's evidence in the Daniel claim was that from Cheedy Station, Yindjibarndi country went as far as Yirdimanara.
285 Many Banjima witnesses also named sites and places between Mt King and Yirdimanara, including Pigeon Camp (Bunthurunna), Government Well/Boundary Mill, Malay Well, Marra (an old Law ground), Milyarndu, Manarn, Banjilamuna (also spelt Banyjilamu and Bunjella Well), Windamurra, Youngaleena (also Yungalina), Winjawarra (Winyjuwarranha), Nyiya.
286 The notes of Mr John Laurence put into evidence from field work were also consistent with Yindjibarndi country going as far as the old Mulga Downs Station and some of these places just mentioned.
287 White Springs and the Chichester Ranges (Birdilya) were also shown by a range of evidence of Aboriginal witnesses to be boundary markers. Archie Tucker named a series of outcamps, creeks and gorges along the Ranges boundary markers, explaining that where the water flowed south of the Chichester Ranges into the Fortescue it was Banjima country. On the other side of the Ranges following markers like Yirdimanara the water flowed north. He said that Banjima country goes north up to Chichester. Birdilya (Birdirla) is the name used for the Chichester Range or tablelands.
288 Maitland Parker and Slim Parker also named White Springs as a northern most point of Banjima country, as did Archie Tucker - it actually being outside the claim area.
289 There was also some evidence that the north-eastern boundary marker for Banjima country was Gorman's Claypan in the Fortescue Marsh, which is outside the claim area.
290 Maitland Parker's evidence said that Milimbirinya is an important site for Banjima because it is where the water goes underground and comes up again at Millstream in Yindjibarndi country.
291 Milimbirinya is an area, Mervyn Smith said, associated with the descendants of apical ancestor Arju who is said to have been Banjima/Nyiyabarli and born at Milimbirinya.
292 It is to be noted that Radcliffe-Brown collected the name of a Palkyu person said to be identified with Milimbirinya.
293 The evidence shows Cowra was an outstation of Mulga Downs and is a name that comes from the bush guwara which grows near there, the leaves of which are used when rituals of initiation are staged to smoke initiates. Horace Parker lived there and his son, Timothy Parker, was born there. Blanche Tucker, the mother for G Tucker and Archie, used to work there. Maitland Parker, Timothy Parker, Dawn Hicks and Marnmu Smyth all lived there as children. Whitehead is buried at Cowra. It is said to have been part of her country. Cowra is mentioned by Brandenstein in 1966 as being a place for the Marduidja Banjima.
294 The fact that Bob Tucker Wirilimura appears to have moved to the Mulga Downs area at some point, having begun in the Bottom End, does not, in my view, alter the conclusion to be reached. He is not the only apical ancestor suggested by the evidence to have been connected to Mulga Downs. The evidence as a whole does not suggest Banjima traditional country did not already include this disputed area at the time of his move.
295 What the analysis of the evidence, both early ethnographic, early anthropological, more recent anthropological (particularly that of Tindale) and much more recent anthropological including that of Dr Palmer and Mr Robinson in this proceeding, together with the direct evidence of the Banjima witnesses in this proceeding, demonstrates, is that there is not always an easy or clear-cut answer to the question of which indigenous peoples held native title rights and interests over particular pieces of land or waters at sovereignty, particularly in border or transitional areas where people were multilingual and "tribal" appellations can confuse, rather than help, the analysis. The Court, as the expert anthropologists did, inevitably regards ethnographic and anthropological materials in endeavouring to draw reasonable inferences on the whole of the evidence about a range of issues. There may be some circumstances where the documentary literature appears to compel the drawing of an inference about a factual matter. But in this instance there is no compelling inference to be drawn from such data that the disputed country identified on the northern boundary was not and could never have been within that over which the Banjima exercised traditional rights and interests at sovereignty. When one takes into account the strength and consistency of the direct evidence of the Aboriginal witnesses concerning the traditional boundaries of the Banjima on the northern side of the claim area and also regards the ethnographic data and other evidence, the evidence on balance leads to the conclusion that the disputed northern boundary was an area in which the Banjima traditionally held rights and interests at sovereignty.
296 The early ethnographic materials discussed by the anthropologists is, at most, equivocal about the extent to which the disputed northern boundary area was exclusively the domain of one or other language group. It is not, in all the circumstances, appropriate to accord overriding significance to any particular data that arises from the earlier ethnographic research.
297 For example, the account of old Peter Maiebong given to Tindale suggests that Banjima country may not have extended as far as Banjima people today say it does, but given the range of opinion, both contemporary with, or before or soon after that expressed to Tindale by Peter Maiebong, as identified by Dr Palmer, that does not agree with that account, I am not satisfied that Maiebong's account should be accorded some superior, privileged or veto status or that it should dictate the analysis to be made.
298 There seems little doubt that Yindjibarndi interests were traditionally expressed in or around the disputed northern boundary area. The transcript of evidence from the Daniel claim referred to by Mr Robinson supports that view, but it does not necessarily support an assertion that the Yindjibarndi held exclusive rights in that area.
299 There is indeed much to be said in support of the submissions made on behalf of the claimants that caution should attend any consideration of what was said in the Daniel claim. The transcript of the hearing relied upon took place in the north-west of the claim area and the claim area was not part of the Daniel claim; and indeed the claim area stopped a long way from the boundaries of the present Banjima claim area. The claimants note that the area in between was subsequently filled by the current Yindjibarndi No 1 claim. Further, witnesses who gave evidence in the Daniel claim were not called to give evidence in this proceeding and some of them have passed away. To the extent that there may be contrary statements (for example Guiness Guilbie saying that Mulga Downs was Yindjibarndi country) they are generalised. It may also be accepted that witnesses sometimes give indicative directional evidence as to the extent of country when sitting in another place. The evidence of Archie Tucker and Slim Parker also located places mentioned in the Daniel claim transcript as outside the Banjima claim area.
300 Further, as to a video tendered of a meeting at Windamurra in 2008 to discuss the boundary between Banjima and Yindjibarndi, it also appears that there was a similar meeting in 2003. Slim and Maitland Parker gave evidence that what was said at that meeting, particular by the late Cheedy Ned, generally supported their understanding of the boundary between Banjima and Yindjibarndi. The claimants also reasonably draw attention to Mr Robinson's statement in his supplementary report that, based on discussions with Michael Woodley, a Yindjibarndi man, the 2008 meeting was concerned with ownership of sites within an area to the north-west of a line between Mt King and Yirdimanara.
301 I accept the submission made by the claimants in respect of the notes made by Mr Laurence, that caution must attend consideration of those notes as Mr Laurence was not called to give evidence, and his work has not been published or made the subject of a report. Additionally, Dr Palmer has identified shortcomings in the methodology used to produce the notes. Mr Robinson acknowledged that some of the material was contradictory, for example Bridget Warrie said Yindjibarndi country finishes at Hooley.
302 The claimants also reasonably note that, in relation to Mr Robinson's conclusion that the implications of the material he collected for the Yindjibarndi No 1 connection report were that Yindjibarndi people believed in 2008, when their report was lodged, that they had rights in sites south of the southern claim boundary, within the area between Mt King and Yirdimanara in the north-east, but that no overlapping claim was ever lodged by the Yindjibarndi people following that research.
303 So far as additional materials referred to by Mr Robinson are concerned, while it should not be doubted they are generally relevant to the matters now in issue, they, like the evidence given in the Daniel claim, were not prepared for the purposes of this proceeding and do not on their face address with any great particularity the question of where Yindjibarndi country intersects with Banjima country in this northern boundary area. The note and the sketch made in connection with Yilbi Warrie, for example, invite further interrogation as to their meaning. They may be considered to raise questions but on their own they do not answer them. As the claimants submit, Mr Robinson's interpretation of the data is but one way of interpreting it. For example, a circle on the sketch with the words "Youngaleena, Milimbirinya, Toby Dingoman country" with the letter "Y" in brackets underneath, may be taken as a reference to old Mulga Downs Station, which is a long way from Milimbirinya, which may make it implausible that one man's country or estate could cover such a huge expanse.
304 I also accept the observation made on behalf of the claimants that the note and the sketch were produced in the context of discussions about the Fortescue River as a shared resource for a number of Aboriginal language groups, not in relation to the boundaries of Yindjibarndi country.
305 Additionally, there is, as the claimants submit, difficulty in taking the late Mr D Daniel's statement as to the extent of Yindjibarndi country as final, he being a Ngarluma man.
306 Similarly, in relation to the attempt to promote a map made by the late Mr K Jerrold to determinative status, I accept the claimants' observation that Mr Jerrold was attempting to show Yindjibarndi land did not exist in isolation but was part of the larger whole within a mythological continuum from the coast to the desert at Jigalong, each extremity outside Yindjibarndi country. The fact that his biological father was Banjima may well have influenced his views. Again, these are issues not now able satisfactorily to be interrogated.
307 So too, in my view, the notes of Dr Edward McDonald, an anthropologist, seeking to record the views of deceased Yindjibarndi men raise questions but are not determinative.
308 What the evidence does suggest more directly, and as the anthropologists in their joint report agree, is that a deceased person such as Toby Dingoman may have had traditional rights over some parts of Mulga Downs associated with the area known as Nyiya. One difficulty with this, for present purposes, however, is that there has not been any separate inquiry as to whether such rights have continued in his descendants.
309 The claimants reasonably point out that Toby Dingoman was not referred to in Mr Robinson's first report and the first mention of his name was in Mr Laurence's notes, which were provided shortly before the on country hearing of the proceeding.
310 In cross-examination Slim Parker and Maitland Parker said they did not know Toby Dingoman. Given that he was likely born in the late 1880s this is not surprising. There was no cross-examination as to whether they knew his descendants the late George Toby, the late Yilbi Warrie and others and, if so, as to their language group identity.
311 Notwithstanding those observations, there are grounds for thinking, from Mr Robinson's evidence, that Toby Dingoman may have identified with the Yindjibarndi language group. But, as against that, some of the data suggests that George Toby's country, as noted in Mr Laurence's notes, was mixed up Palkyu, Banjima and Yindjibarndi.
312 The circumstances of this proceeding are that no persons claiming descent through Toby Dingoman, or any other person not of the Banjima language group, have claimed rights, whether exclusive or shared, in the disputed northern border area. The anthropologists' view is that traditional rights survive not only where there is an appropriate descent basis to those rights, but also where they have been "realised". While there are indications that Toby Dingoman in the long past may have been associated with parts of the northern boundary area, there are little indications on the evidence in this proceeding of any assertion of continuing native title rights in that area by any individual, community or group apart from the Banjima.
313 These issues have arisen, in one sense, late in the pre-trial processes and principally through Mr Robinson. Apart from the data produced by Mr Robinson, no person comes forward to contradict the claim made on behalf the Banjima, even though on the evidence, including of the Windamurra meetings as late as 2008, Yindjibarndi people have been aware of the proceeding. The evidence shows that the Yindjibarndi have lodged a claim in Yindjibarndi No 1 up to the claimed Banjima boundaries in this proceeding, but not beyond. All of this suggests that there is no apparent intent on the part of any other individual, community or group among the Yindjibarndi to assert traditional rights or interests in the claimed northern boundary area.
314 This is not a case where, in my view, it can be said that the rule in Jones v Dunkel has any application. I do not consider that this is a circumstance where the claimants were bound to call upon Yindjibarndi people or any other mentioned language group to give evidence in relation to the issues raised in respect of the northern boundary. There is no obligation for the claimants to cause a native title inquiry to be conducted, in effect, on behalf of the Yindjibarndi, for example, in relation to the possible interests of any descendants of Toby Dingoman. I accept, as the anthropologists have stated, that the Court may have been better informed if there had been more data concerning the interests of persons such as Toby Dingoman and any interested descendants, but that does not mean that the Court should draw an inference that, by reason of the failure of the claimants to ascertain who the descendants of Toby Dingoman may be, and to call them if there are any to ascertain whether or not they claim continuing interests in the area, should lead to a conclusion that they could not have given evidence which would have helped the claimants' case.
315 Nor do I accept the accompanying complaint made by the State that Dr Palmer ignored these potentially competing interests or that he failed to meet his responsibilities to the Court as an expert witness in investigating these other possible lines of inquiry or ignoring data. The fact of the matter is, as noted above, that these potential lines of inquiry were identified by Mr Robinson at a relatively late stage before the hearing. Dr Palmer in his first supplementary report and subsequently also explained that he did touch on points concerning Maiebong's accounts of territory and did not intend to obscure them. I accept he did so and his explanations. Further, just as it is not for the claimants in effect to conduct a native title inquiry as to the potential interests of neighbouring language groups in relation to a claimed area, nor was it in all the circumstances necessary for Dr Palmer to do so. There may be circumstances, but I do not consider that they currently exist, where the failure of an expert in a proceeding to explore some obvious line of inquiry in the course of forming an opinion for the purposes of a proceeding will adversely reflect on that witness's credit and thus the basis and value of an opinion expressed. As I say, I do not consider that this is such a case. I therefore reject the State's submission that the opinion of Dr Palmer in relation to the claimed northern boundary area should be rejected or discounted for this reason.
316 In all of these circumstances, the evidence points in one direction, which is the direction pointed to by the Banjima witnesses. I find, on the balance of probabilities, that the northern boundary (Fortescue Valley) areas in respect of which Mr Robinson (and the State) have raised questions, was an area in respect of which the evidence shows that Banjima people at the time of contact with British settlers, and by inference at sovereignty, had native title rights and interests pursuant to their laws and customs.
317 Whether or not other language groups - such as the Palyku or the Yindjibarndi - also had interests at sovereignty becomes irrelevant for present purposes. If there is no other group that presently asserts any such interests, either exclusively or on a shared basis, and the evidence shows that on the balance of probabilities the Banjima traditionally had rights and interests in that area, then there is no adequate basis to deny the claimants' claim that the traditional boundaries of the Banjima extend to where they currently assert that they extend, for native title purposes.
318 I am satisfied, therefore, on the balance of probabilities, and find that the Banjima held rights and interests in the northern boundary (Fortescue Valley) area at sovereignty.
319 Eastern boundary (Weeli Wolli and Yandicoogina): In relation to the eastern boundary (Weeli Wolli and Yandicoogina) the anthropologists record the following outcome in relation to the proposition that country to the west of Weeli Wolli Creek and extending as far as Barimuna are areas in which members of the Nyiyabarli language group hold customary rights:
Mr Robinson is of the view that, based on the available literature, there is no ground for concluding that Nyiyabarli had rights in the Weeli Wolli and Yandicoogina Creek at sovereignty.
Dr Palmer's view is that the proposition relies on an assumption over the nature of tribal groups which is untenable.
320 This is in the area that Aboriginal witnesses called Milyaranba Banjima country. In his first report Dr Palmer explains that he gained data as to the extent of Milyaranba Banjima country from a field trip as well as from interviews with senior claimants. In that regard Mrs A Smith provided him with information reflected in a sketch map that he prepared (which is included as figure 7.2 at p 119 of his first report).
321 Mrs A Smith's first account commenced from Birdibirdinya (site 22, old Mt Bruce Station, now the site of the Karijini Rangers' residences). She told Dr Palmer it went "right across" to the highway, being the Port Hedland to Mt Newman road, and from there to "Area C", which is a term that witnesses in the proceeding use for those areas of Yandicoogina and Marillana Creeks subject to mining by BHP Billiton and RTIO. Mrs A Smith conveyed to Dr Palmer that the northern scarp of the Hamersley Range, overlooking the Fortescue River, marked the northern boundary of her country. Thus, the gorges of the Karijini National Park were considered by her to be within Milyaranba Banjima country.
322 Dr Palmer received what he considered to be a "fuller account" from Mrs A Smith in two subsequent interviews at which she indicated whether a number of places were either "inside" or "outside" of "her boundary". Dr Palmer said that her account did not provide a "neat circular account" of her boundaries. She only mentioned some places that she regarded as significant features.
323 For present purposes there is no particular need to discuss the detailed account that Mrs A Smith provided Dr Palmer, or the other data that Dr Palmer received at various times from members of the claim group. Rather, it is appropriate to note that at [415] of his first report, Dr Palmer made the assessment that the data collected from Mrs A Smith, May Byrne, Steven Smith and others showed substantial similarities, as he would expect from a group who gained much of their information from Mrs A Smith, acknowledged to be the most senior member of the group.
324 Dr Palmer noted, however, there were four areas of difference in the accounts provided. First, May Byrne, Steven Smith and others may view Milyaranba Banjima country as extending further south than the Mungarunya Range. In turn, Mrs A Smith's account may place the furthest southern extent of Milyaranba Banjima country at the junction of Wayaru (Spring Creek) and the Turee River.
325 Second, Mrs A Smith's first account of her northern boundary was consistent with that provided by the others, being the Hamersley Range or Karijini. However, on a subsequent occasion she described her northern boundary as being the Binbuyungu range of hills which, by her account, runs south of Hamersley Range and includes Mt Oxer.
326 Third, Alice considered that her eastern most boundary was identified by a creek to the west of Barimuna and therefore did not include the lower waters of Marillana Creek or Yandicoogina Creek, as they are now named on the map.
327 Fourth, Nellie Jones stated that Banjima country extended west to include Rocklea Station, something not claimed by other members of the claim group. However, she had also told Dr Palmer on an earlier occasion that Rocklea Station was identified with the Innawonga language group. As a result Dr Palmer stated that he had some reservations about her statements and commented that they may have been influenced by her having been born at Rocklea Station and having had a long term association with that area.
328 By reason of her seniority and knowledge Dr Palmer placed substantial reliance on Mrs A Smith's account.
329 Dr Palmer then considered the position of the Nyiyabarli and Weeli Wolli Creek issues. He indicated that the issue in question related to the boundary of country which members of the Nyiyabarli language group identified. The issue had been brought to attention as the result of research carried out by two other anthropologists, Dr Daniel Vachon and Dr Sandra Pannell in relation to the Nyiyabarli application for determination of native title. As a result, Dr Palmer undertook field work in April 2010 with Dr Vachon and a number of IB, MIB and Nyiyabarli claimants.
330 Dr Palmer considered that the data he collected on the field trip from Banjima informants for the most part replicated information he had gained on previous visits. There continued, however, to be a difference of opinion as to the eastern boundary of Banjima country.
331 One group, that included representatives of the IB group, favoured a more westerly boundary identified by reference to Barimuna Hill (site 86). That was also the view of Nyiyabarli language group members present. Others, principally the MIB claimants, took the view that Weeli Wolli Creek (site 88) represented the eastern boundary.
332 Dr Palmer stated that Alec Tucker told him that the eastern boundary of Banjima country was marked by a gorge which he named Gunadayanah (site 100). The gorge is also known as Rock Hole Bore. It runs in a southerly direction into the range to Barimuna Hill. Alec Tucker stated that the boundary ran north, crossing the Roy Hill to Auski roadhouse road and into the Fortescue Marsh to Milimbirinya (site 94), which is also a boundary marker and a significant site in the Wardirba mytho-ritual tradition. Dr Palmer said that those present at that time told him that Milimbirinya itself was considered to be associated with the Nyiyabarli language group, although the Banjima had also "some responsibility" for it, "because this is where the water starts". It was said that members of the two groups, "were together here the two tribe. They came to share things. They gave each other wives here". Maitland Parker later told him that he had always understood that Milimbirinya was "country for Nyiyabarli".
333 Dr Palmer further stated that members of the Nyiyabarli language group present on that trip (who included David Stock and Gordon Yuline) were also of the view that the Nyiyabarli boundary was west of Weeli Wolli Creek. They informed him that this was what old men now deceased, including Punda Bob and Gordon MacKay, had told them in years gone by and that the boundary was "always west of Barimuna". David Stock told him that from Barimuna the boundary went south to Gundawana Claypan (site 47) and to Mt Robinson (site 48). Others suggested that the boundary was a short distance to the west of Barimuna on Flat Rock or Split Rock Creek. Dr Palmer said that on a separate occasion Mrs A Smith confirmed her former view that Barimuna and in particular the area to its immediate west known as Flat Rock Creek, was the boundary with the Nyiyabarli to the east.
334 Dr Palmer noted (at [426] of his first report) that the contrary view, expressed with equal conviction as to its authenticity and customary endorsement, was that the boundary ran down Weeli Wolli Creek to Milimbirinya. Maitland Parker, for example, stated that the boundary should follow the Weeli Wolli Creek to Milimbirinya, which was itself Nyiyabarli. Trevor Parker stated that it was the old people who had told them that the boundary was Weeli Wolli Creek.
335 Dr Palmer said that when he and others visited Jinardi (site 101, Kennedy Yard) located on the eastern side of the Weeli Wolli Creek during the field trip, Jinardi and the adjacent hill of that name were pointed out by some as being on the boundary between Nyiyabarli and Banjima. Maitland Parker was one of those.
336 Dr Palmer said that Brian Tucker stressed that command of country was legitimated by command of esoteric ritual knowledge. In that regard he told Dr Palmer that when they sang the Wardirba songs progressively identifying areas of country, the one that was associated with Weeli Wolli Creek marked the transition in the responsibility for the singing from Banjima to Nyiyabarli. Trevor Parker similarly stated that, "it all goes by the song. There's responsibility too for all that". Brian Tucker agreed. He added that: "It's the song that takes you there. It's a shared law. And this was shared by the rule of the old people. We shared the water". Dr Palmer said he understood that both men considered Weeli Wolli as a boundary that was legitimated by reference to spiritual ordination, although individual exclusivity was not a feature of the command of ritual knowledge and territory jurisdiction.
337 Thus, Dr Palmer considered that there was then some indication that the area between Weeli Wolli Creek and Barimuna might be understood as "shared country". In that regard reference was made to the Gumala organisation set up as a result of the mining agreement for the Yandi mine and which reflected the ideal that all Aboriginal groups in that area would share - gumala being the Banjima phrase "to share".
338 David Stock had indicated, said Dr Palmer, that he had customary rights to the Yandi area west of Weeli Wolli Creek and that this had been established many years ago at a big meeting at Youngaleena (Yungalina) at which the old people had supported him. David Stock told him: "They were all from Mulga Downs, where they had been living together. I was the boss, but I never said that because I said, 'Share it because we've always been together'".
339 Dr Palmer, having regard to his earlier discussion in Ch 12 of his first report as to the descendants of Yandiguji married to Tharu, expressed the opinion that those descendants (including David Stock) would appear to have grounds for asserting familiative rights in the areas west of Weeli Wolli Creek. Mrs A Smith, he considered, endorsed that view.
340 Dr Palmer noted, however, that the idea that the country was shared was not accepted by all present. One MIB claimant (Johnny Parker) told Dr Palmer that, while David Stock had Banjima ancestry, he had made a choice to follow his Nyiyabarli forebears and had given up any claim to Banjima country. Dr Palmer also noted that Gordon Yuline, as a Nyiyabarli claimant, stated that while the Banjima people would have been free to use the area to the east of Barimuna for hunting and gathering, they would be required to acknowledge the proprietorship of the area by the Nyiyabarli.
341 In the light of these materials, in his first report Dr Palmer made the following observations:
First, there is evidently an unresolved dispute between members of the Nyiyabarli language group and some members of the Banjima group as to the eastward extent of Banjima country and the westward extent of Nyiyabarli country. Broadly speaking, the dispute is between members of the MIB and members of the IB and Nyiyabarli groups. The former MIB group assert a boundary that follows Weeli Wolli Creek, the latter generally accepting the Nyiyabarli boundary as being west of Weeli Wolli Creek and associated with Barimuna and related places north and south of there.
Second, the dispute is tempered to some extent by a tentative view that the area between Weeli Wolli and Barimuna may have been "shared country". The organisation of the Gumala Association was at least in part a reflection of the fact that benefits should be shared between members of the two language groups. That view of shared country has also been put forward by other researchers. Dr Palmer considered the idea that some areas of country are shared is consistent with his view that the customary arrangements whereby rights to country were articulated provided for claims to multiple areas of country. Moreover, rights were unlikely to be exclusive to one lineage, but would be shared by a number of individuals or descent groups who together comprised the country group.
Third, David Stock asserts familiative rights to the area between Barimuna and Weeli Wolli Creek. While he is generally associated with the Nyiyabarli language group, he also has Banjima ancestry. This illustrates the difficulty with making language group identity a focus or a determinate for identifying rights to country. In Dr Palmer's view, it is this dispute which is a product of an attempt to project a language group identity onto specific areas of country and thus to mark the "cartographic boundary" between them. Language group identity on a border may be subject to debate. However, those individuals who assert rights are evidently identifiable, if contested.
Fourth, the issue invites discussion in respect of general problems attendant upon defining boundaries as lineal cartographic constructs.
342 As to Weeli Wolli and Yandicoogina, Mr Robinson (in his first report at section 4.2) considered that, if there is scant information about the Fortescue Valley area, there is even less in the early literature about the Weeli Wooli and Yandicoogina areas. The Nyiyabarli did not appear in the literature until after the Second World War.
343 Mr Robinson said it could be that Clement and others conflated the Palyku and Nyiyabarli and that their references to the Palyku should be read to include the Nyiyabarli as well, but that view cannot be tested. He notes, however, that Tindale in 1974 believed that the Palyku and Nyiyabarli were "closely related" and have "now mixed freely", but does not say what led him to that conclusion. Mr Robinson notes that Tindale stated that the Nyiyabarli (his "Niabali") were on the headwaters of the Oakover and Davis Rivers and the "middle waters of the Fortescue River" and "on Weeli Wolli Creek north of the Opthalmia Range". He also noted that in about 1890, "pressure by Kartudjara forced Niabali to retreat from the northern vicinity of Savoury Creek to a boundary on the head waters of Jiggalong Creek".
344 Mr Robinson said the idea of a westward movement is supported by Tonkinson, who states that Jigalong was originally in Nyiyabarli territory but by the time desert people began to arrive there in the 1930s, most of them had "already drifted to sheep and cattle stations further west". He noted that Dr Robert Tonkinson conducted a heritage survey in the Weeli Wolli Creek with the archaeologist Dr Peter Veth and reported that Banjima land had "Weela Wolli Creek as its boundary". This was in 1986.
345 Mr Robinson considered that the heritage surveys that have taken place over the past 30 years seem to be in basic agreement that there is a boundary between the Banjima and Nyiyabarli people at Weeli Wolli Creek. He also noted that in 2001 Nicholas Green and Pamela McGrath placed the boundary between the "Top End of Banjima" and Nyiyabarli at the Area C deposit with Jarjirlingu (Werribee Range) and Mt Robinson as points on the boundary.
346 He noted that several writers report that land is shared in the Weeli Wolli Creek area. Rory O'Connor in 1994, for example, reported that Weeli Wolli Creek was a "transitional zone" between the Banjima and the Nyiyabarli. Dr Tonkinson and Dr Veth in 1986 were told that the area was "mixed-up" between Nyiyabarli and Banjima. In 1992, Angela Murphy and others were told that Banjima and Nyiyabarli both had rights to speak there and there was a "collective responsibility" for the area.
347 He also noted Dr McDonald in 1997 recorded that informants on a survey of Hope Downs "emphatically referred to Weeli Wolli Creek as being one of the main meeting places between the two groups". He also noted that there had been a strong historical relationship between Banjima and Nyiyabarli and intermarriage. Kim Barber in 1996 considered that the area around what is now the Yandicoogina project was owned by a closely related coalition of "Inawongga/Ngarla, Bandjima and Nyiabali people".
348 Mr Robinson also noted what Dr Palmer reported, as set out above, as a result of the additional 2010 fieldwork undertaken with Dr Vachon. He noted that Dr Palmer made a number of observations and appears to favour a view that this was an area of multiple interests.
349 Ultimately, based on the literature, old and new, Mr Robinson (at [229]) expressed his belief that there is anthropological support for a Banjima boundary at Weeli Wolli Creek, with a likely sharing of country with their Nyiyabarli neighbours to the west of the creek. He added, however, that "[t]here is a question whether the traditional neighbours here were the Nyiyabarli or Palkyu at sovereignty" but believes it would be now very difficult to resolve that question.
350 It was in these circumstances that the anthropologists in their joint report, in relation to the proposition that country to the west of Weeli Wolli Creek and extending as far as Barimuna are areas in which members of the Nyiyabarli language group hold customary rights, agreed the outcome:
Mr Robinson is of the view that, based on the available literature, there is no ground for concluding that Nyiyabarli had rights in the Weeli Wolli and Yandicoogina Creek at sovereignty.
Dr Palmer's view is that the proposition relies on an assumption over the nature of tribal groups which is untenable.
351 I accept the outcome expressed by Dr Palmer and Mr Robinson and the basis for it. I accept the Banjima have native title rights and interests in the area in question and so their "boundary" extends that far.
352 The preponderant evidence given by Banjima claimants at trial was consistent with the view that, in this eastern boundary area, it is persons, including David Stock, with Banjima language group connections who hold the native title rights and interests. Evidence and questioning in some respects focussed on Barimuna. Brian Tucker in his evidence said it was Banjima country and that a song related to it, although he accepted that people who identify as Nyiyabarli also sing that song. Alec Tucker, Maitland Parker and Archie Tucker gave evidence consistent with that given by Brian Tucker about Barimuna.
353 The claimants observe that the evidence that Weeli Wolli is the boundary in this area is particularly strong for various reasons including that:
Brian Tucker identifies as both Banjima on his father's side and Nyiyabarli on his mother's side. Timothy Parker's mother is also Nyiyabarli.
Timothy Parker and Slim Parker both gave evidence that they gained their knowledge of country from both Banjima and Nyiyabarli old people both as children and in the context of heritage work with elders visiting Weeli Wolli Creek.
The Banjima connection to the Weeli Wolli boundary is legitimated by references to the Wardirba tradition that celebrates the water flowing down the creek into the Fortescue River.
In accordance with their laws and customs, the Banjima people are active in visiting and looking after country and water associated with Weeli Wolli Creek and Barimuna.
354 The claimants accept, however, that Mrs A Smith, a senior Banjima woman, suggests that Barimuna was Nyiyabarli. They also make the reasonable observation that she identifies primarily as a Top End Banjima person and, as a woman, cannot talk about Wardirba. Mrs A Smith also recognised David Stock was the right person to speak for Barimuna and that he had a Nyiyabarli mother.
355 In the concurrent evidence session Mr Robinson confirmed his view that the evidence for the Nyiyabarli presence in that area at sovereignty was not there, but the evidence of the current interest was. Mr Robinson accepted there was an abundance of evidence about both Banjima and Nyiyabarli interests in that area today, although the Palyku do not figure presently.
356 As to David Stock, Dr Palmer said that he is recognised as having rights in the area. Dr Palmer added that he said that regardless of the language name by which David Stock identifies. He considered and understood that both he and Mr Robinson agreed with that.
357 As to whether the evidence disclosed Nyiyabarli interests in this area at sovereignty, Dr Palmer considered that the situation at sovereignty is the subject of very slim ethnographic evidence. As to what the arrangements might have been, especially given misunderstandings in the literature about the nature of tribes and boundaries, he considered it would be very hard to come up with anything that he could put any weight on.
358 As far as David Stock, Barimuna and the traditional interests held in the Barimuna area are concerned, I consider the preponderant evidence is this proceeding nonetheless is that David Stock is a person with interests in that area and while he has Nyiyabarli connections through his mother, he obtained those interests through his Banjima ancestry, and that Barimuna was also an important place for Banjima people.
359 Having regard to the evidence referred to, and the opinions expressed by the anthropologists concerning the importance of not confusing "tribal" identification with the way in which traditional rights and interests are derived, particularly in boundary areas, which I accept, I am satisfied that Barimuna is traditionally connected to the Banjima and that persons with Banjima ancestry, including David Stock, have recognised interests under Banjima law and custom in that area. The celebration of Barimuna in the Wardirba song cycle may not be definitive proof that a place falls within Banjima territory, but in this case taken with all the other evidence, including that of the anthropologists, I am well satisfied on the balance of probabilities that Weeli Wolli and Yandicoogina Creeks constitute the eastern boundary of the claim area.
360 I find, therefore, that the Banjima held traditional rights and interests in the eastern boundary in the vicinity of Weeli Wolli and Yandicoogina.