The Malyangapa applicant's evidence
21 The Malyangapa applicant relied on the affidavit of Mr Sutton, who deposed that he is a Malyangapa man through his mother, Alma Bates, her mother Hannah Quayle, and her mother, (his great-great-grandmother) Fanny Buugali Williams, who were all Malyangapa People. He said that growing up his mother made sure that he knew about their family history and told him that the country around Tibooburra and Milparinka is Malyangapa country. She told him that Wongkumara country was the other side of Tibooburra, going up to Queensland. He also said that his uncles, William Riley and Harold Hunt, told him that the area around Tibooburra was Malyangapa country. He said that he started working at the Mutawintji National Park in about 1998 and that many of the people on the Mutawintji Aboriginal Land Council (which had been formed in 1983) were Malyangapa. He deposed as to his unsuccessful efforts in seeking to have Native Title Service Corporation (NTS Corp), the native title service provider in NSW, pursue a native title claim on behalf of the Malyangapa People. In substance he said that ultimately SANTS agreed to help them, and SANTS persuaded NTS Corp not to stand in the way. He blamed NTS Corp for the late filing of the Malyangapa Part B application.
22 The Malyangapa applicant also relied upon unsigned affidavits of Malyangapa deponents. In each case a legal practitioner stated that the deponent had confirmed that the contents of the unsigned affidavit were true. At the hearing the Wongkumara respondents did not reiterate their written submission objecting to the unsigned affidavits. Given the short time allowed for the Malyangapa applicant to put on its evidence, and the COVID-19 restrictions in place, I have no difficulty in accepting unsworn affidavits on the basis described in paragraph 4.2 of the Special Measures in Response to COVID-19 Information Note (SMIN-1). The Malyangapa applicant must file sworn affidavits as soon as practicable. In summary, the Malyangapa witnesses deposed as follows:
(a) Ms Hausia said that she is a Malyangapa woman and a descendant of the Malyangapa apical ancestor, Fanny Buugali Williams, her great-grandmother. She said that her mother and grandmother told her stories about the places around Milparinka and Tibooburra, particularly Tibooburra, which was how she knew it was Malyangapa country. She said that a long time ago she attended meetings of the traditional owners of Mutawintji National Park, along with William Bates, a Malyangapa man, and that almost everyone else in the meeting was also Malyangapa. She also deposed as to the reasons for the delay by the Malyangapa People in making the present claim;
(b) Ms O'Donnell said that she is a Malyangapa woman through her father, Alfred Bates, and by descent from Nellie of Cobham Station (her great-grandmother), an apical ancestor in the Malyangapa claim. She said that her father had told her the country around Milparinka and Tibooburra was his country, and his father Alfred Bates Senior was buried there. She said she has never known it as Wongkumara country and has never heard people say that it is Wongkumara country. She spoke of her spiritual ties to that country and that she has been there many, many times. She said that she was very active in the Barkandji native title claim and worked with a lot of people to conclude that claim. She said that she is also a Wilyakali person, and on her account it was through her Wilykali connections that she was part of the Barkandji claim group;
(c) Mr Gossner said he is a Malyangapa man who traces his descent through his grandmother, Mary O'Brien Quimby, by whom he was raised. His great-grandmother was Lena Quimby, whose mother was Nellie Crowe, and her mother was Topsy Crowe, a Malyangapa apical ancestor. He said that while his family did not have connections with the country around Tibooburra he understood that other Malyangapa families like the Bates family did have connections up that far north;
(d) Ms Hunt said that she is a Malyangapa woman. Her father is Harold Hunt, a Malyangapa man, his mother is May Hunt (nee Quayle) and her mother is Granny Hannah Quayle. She traces her lineage from her great-great-grandmother Fanny Buugali Williams, a traditional Malyangapa woman who lived on Mordern Station, near Mutawintji. She said she had always understood that the areas around Milparinka were Malyangapa country and that her father took her around those areas as a child. Her father was given a number of traditional stories about those areas and he told her about them as a young woman. She said that she does not identify as Barkandji and together with a small group of Malyangapa people she objected to being included in the Barkandji native title claim, but they lost the vote, and the claim was renamed to Malyangapa and Barkandji. She objected to her great-grandmother, Hannah Quayle, being listed as an apical ancestor on that claim but her objection was not accepted. She largely blamed the NTS Corp in NSW for the delay in the Malyangapa people advancing their new claims. She specifically denied that her father was a Barkandji man, and said it was ridiculous to assert otherwise. She referred to an audio recording of her great-grandmother Hannah Quayle, recorded by the linguist Luise Hercus in the late 1950s, in which she said that her people were Malyangapa People; and
(e) Mr Quayle said he is a senior Malyangapa man. He traces his descent through his great-grandmother, Hannah Quayle, whose mother was Fanny Buugali Williams. He says that he has always known that Malyangapa country includes the land around Tibooburra and Milparinka. He knows that because his great-grandmother told him many Malyangapa stories connected with those places and many other places as well, and she told him that was their country. By way of explanation for the delay in bringing the Malyangapa claims, he said that the Malyangapa have no resources to run a native title claim themselves and they needed the help of NTS Corp lawyers to do so. He deposed as to the Malyangapa People making NTS Corp aware that they wanted to commence their own native title claim, and that there was nothing else that they could do but wait. He said that it was only through SANTS that the Malyangapa People were ultimately able to get the present claim off the ground.
23 The Malyangapa applicant relied on the Kwok report, which runs to 104 pages. In the report Dr Kwok concluded as follows (at [264]-[271]):
264. The Part B claim group is a descent and language-based group, united by their common connection, under traditional law and custom, to Malyangapa land and waters, and, by the common observance and enforcement of related prescriptions and customs. They are also united amongst themselves, and across the wider region, by a common moral social ethos, mutually recognised social rules and by the ongoing centrality of extended kinship relationships in social, economic and political life.
265. Drawing on the ethnohistoric records, including published historical and ethnographic works, maps and unpublished fieldnotes, there is strong evidence placing the Malyangapa language group within the Pt B claim area. Classical cosmology provides a charter for understanding divisions between language groups and people in the area. The Malyangapa are distinguished from their neighbours by a distinct language and unique moiety names, with only the Wadikali and Yardliyawara being counted within the same linguistic sub-set (Yarli). The mura and milia stories and ceremonies of the corner country place the Malyangapa people and their ancestral forebears within the overlap area. These also provide an outline of regional networks of ceremonial cooperation, marriage and trade, which account for the influx of visitors and common mythological knowledge. Malyangapa interests in country extend from Tibooburra in the north, to Lake Bancannia in the south; and in the east from Salisbury Downs and Yancannia, westward to or towards Lake Frome and Lake Callabonna. This is discussed at some length above in Sections J and K, and see my conclusions at [71], [79], [93].
266. My research supports the Malyangapa Part B claim group description above at [6]. Six of the seven apical ancestors listed in the Part B claim group description have been directly identified in anthropological/linguistic research materials as Malyangapa people or as closely and relevantly connected to persons so identified. Historical documentation is available to support the births, deaths and marriages of apical and other ancestors of the present Malyangapa claim group within the Pt B claim area. Oral testimony accounts for the life and work histories of contemporary Malyangapa claimants which have or continue to relate to the towns of Milparinka and Tibooburra and stations in the area including Mt Poole and Mt Sturt.
267. The ethnohistoric and archival evidence is decidedly weaker in identifying Wongkumara connections to the Part B area. As I have indicated, it is probable that historically, Wongkumara connections stem from their participation in broader regional activities such as ceremonies and through residence in the regional centre of Tibooburra, perhaps stemming from the relocation of the apical forebear Charlotte from Nockatunga in the 1930s (see [93] and [104], [105]).
268. I have specifically considered the Wongkumara claims at some length in Sections L, S and U and they have not altered my opinions and conclusions in this report, Specifically, my conclusions in relation to Alf Barlow are at [188], [189], George Dutton at [207], Nellie of Cobham Lake at [213], Charlotte [222], [223], Tarella at [230] and Albert Bates at [236].
269. The Malyangapa people continue to assert their exclusive possessory interests in their country, including the Part B area, under traditional law and custom and found their identity on their common connections to the dry lands they call their own. Some Malyangapa claimants presently reside at Tibooburra, others visit from time to time. The Malyangapa people are actively involved in the traditional owner arrangements at Mutawintji National Park, which lies inside the Barkandji determined area and serves as a focal point of Malyangapa identity. They protect, care for and promote their land and cultural heritage in the Pt B claim area through membership and office-bearing positions in the Tibooburra Local Aboriginal Land Council, through representation on National Parks and Wildlife Service projects, in local cultural heritage projects and in clearance work. The Malyangapa people are seeking recognition for their collective interests in Malyangapa country and for attendant rights to access and occupy their country, to take and use the resources of their land and waters for any purpose, to speak for and manage their land and to carry out and protect their cultural heritage as they see fit.
270. Although in keeping with traditional law and custom, an Aboriginal person always maintained certain rights in the country of their various grandparents, in the contemporary era, distinctions between the kind of rights inherited along different pathways have lost definition. People may well assert interests in country through more than one line of descent. There is a sentiment, more or less strongly held, that a person should make some choices with regard to their primary affiliation. At the least, in order to maintain some active recognition as a group member, a person should be willing to publicly assert their identity with the group, service relationships with kin and country and involve themselves in forums dealing with management of country, in such a way as to be reckoned one of the group. Minimal connections of a biological nature may provide the foundation for basic group membership, however, in order to receive warm acceptance and to be able to speak up in respect of country, mutual recognition is requisite.
271. The conclusions outlined here and throughout the report are based on research and fieldwork to date. I plan to undertake further fieldwork and desktop research (COVID-19 restrictions permitting) in connection with the Malyangapa claim lodged in June 2021 (Parts A and B). I expect that this work will deepen my knowledge and may lead to further refinement of my views.