Consideration
114 The claimants' direct evidence generally supports what is alleged in the claimants' SFIC and Minute of Proposed Amended Native Title Determination Claimant Application (Form 1) filed 1 August 2001 (claimants' application or Form 1), namely, that the claim area is wholly within traditional Badimia country. The claimants' evidence is also supported by the evidence of Aboriginal witnesses - namely Clarrie Cameron, a Nhanhagardi elder, and Lance Mongoo, a Wajarri man - who identify as belonging to Aboriginal language groups which consider themselves traditional neighbours of the Badimia.
115 The evidence given by the claimants and those other Aboriginal witnesses was primarily based on what they understood from what their now deceased elders had told them.
116 Claimant evidence on key issues must be given due weight in a proceeding such as this. Where, however, other evidence, including ethnographic data, challenges such evidence, all the evidence must be carefully weighed before a final verdict is reached on each issue, which will often only be arrived at by drawing inferences and on the balance of probabilities.
117 There is no issue here that the Aboriginal witnesses did not give their evidence truthfully or that they did not genuinely believe that they and their ancestors were Badimia people and that the claim area has always been Badimia country. A question arises whether it should be inferred, in light of European ethnographic data and other evidence, that their understanding about those things has been affected by post-sovereignty events, and whether the claimants have satisfied the Court that the claim area is traditional Badimia country.
118 The first question, however, is what this ethnographic data reveals.
119 In dealing with the ethnographic data, the Court, at least to some extent, is required to view it through a lens misted over by time. In that regard, the expert anthropological evidence is calculated to assist the Court to see the data more clearly.
120 Considering first the ethnographic research conducted soon after the Second World War, there is something of a gap between what the claimants now say and what Fink noted in the 1950s. The Court chooses to start here in the 1950s, as Fink's works begin to reveal what researchers were observing in more modern times, a hundred years or so after the first contact between Aboriginal and European peoples. Armed with these observations, the Court considers the earlier data may more usefully be regarded.
121 Fink did her PhD research in the 1950s. She was based in Wajarri country in Mullewa. Her work was not focussed on the Badimia but they figure, at least incidentally, in her work. She was concerned to study the effects of assimilation policies on Aboriginal people. She met "town dwellers", "fringe dwellers" and other Aboriginal people still on pastoral stations.
122 Fink produced two maps with her work. It is accepted all round that these maps do not purport to indicate "tribal" boundaries. On one map the Badimia are placed just south of Mullewa, and on the second, slightly east of there and south of Yalgoo. Both those locations are to the west of and outside the claim area.
123 Fink's written notes also talk about country of the Badimia being south-east of the Mullewa-Cue railway line, although she did not define the eastern bounds other than to note:
Padimai/Yalgoo - Magnet - Paynes Find - Nyngan
Some pages later there is the statement:
Language Magnet to Cue bagumaia - people Bugalgora[?] all died out. From Magnet to Sandstone Ngalubalinggu called tribe Malia
124 On the face of those maps and research notes, Fink, in the 1950s, did not obviously associate the eastern parts of the claim area with Badimia country.
125 Thus, if one were to rely only on Fink's maps as providing some reasonable indication of the extent of traditional Badimia country, then Badimia would be associated with some, perhaps a little more than the western third, but not all of the claim area as at sovereignty.
126 There are a number of assumptions or observations to be made about Fink's work. The first, which has already been made, is that she was not focussed on an ethnography of the Badimia people and their "tribal" boundaries in her work. Secondly, the provenance of her Badimia data is not clear. Thirdly, a point that Mr Robinson made in cross-examination, Fink did not necessarily express any such view about the extent of Badimia country as is now attributed to her. That is to say, in the course of this native title hearing, it has been the anthropologists and counsel for the parties who have sought to ascribe views to earlier ethnographers, such as Fink, when that may or may not be appropriate. In other words, one may need to be cautious about attaching too much significance to data that was not collected with the express purpose of resolving an issue such as that now at hand.
127 In the circumstances, the Court considers Fink's notes and the statements recorded by her may be said to be what they are. They are useful but not determinative of traditional country boundary issues. They raise questions about whether traditional Badimia country extended into the (roughly) eastern two-thirds of the claim area, including around Mount Magnet. They correlate with the Aboriginal witnesses' direct evidence to the extent that they show that ethnographic research in the 1950s associated Badimia with a part of the claim area.
128 Following Fink, Kingsford and Dunn, in the 1980s, were the next to undertake formal research in relation to the Badimia, Kingsford for his anthropology masters thesis and Dunn for her masters thesis in linguistics. They were a husband and wife team who worked together. Their reports are separate but they seem to have settled upon similar maps of the area they worked in. Mr Robinson agreed that they worked in conjunction in many respects and that their maps were largely identical.
129 While Mr Robinson initially considered that the maps used by Kingsford and Dunn included all the land in the current claim area, and extended further west and south as well, he later accepted that that was not so. In cross-examination he said that he regarded the Kingsford and Dunn maps as not intended to be "geographically accurate", noting they were oval in shape and had broken lines. He said he interpreted them broadly to be rough approximations of where Badimia country was, and not to represent "tribal boundaries". But he accepted that the whole of the claim area was not within the maps. He said, however, the maps covered a substantial portion of the claim area, in terms of the pastoral stations identified. He accepted that only portions of the pastoral stations mentioned in Dunn's maps might be included in the claim area.
130 Leaving aside the extent to which the country identified as Badimia in the Kingsford and Dunn maps more or less correlates with the claim area, it should be noted that this work was conducted in what is often referred to as the "pre-native title era". That is to say, that it cannot be said that the research or the information provided to the researchers was somehow skewed because informants understood it was to be used to advance a native title claim, in which the identification of traditional boundaries is critical.
131 Nonetheless, the observation was reasonably made by Dr Brunton that research conducted in the 1980s, as this research was, based on data received from informants such as Joe Benjamin, may have depended too much on the views of persons, then alive, who identified as Badimia, and their life experiences on pastoral stations, without sufficient regard being paid to earlier ethnographic data suggesting contrary views.
132 There is no doubt that, in every native title case, what the Aboriginal witnesses believe to be a true account of traditional boundaries must be carefully regarded. That is not to say, however, as suggested above, that their opinions and beliefs are beyond critical examination, especially as to their foundations, and that earlier ethnographic work is not relevant to an assessment of the weight to be accorded to their evidence. Where earlier ethnographic work is apparently based on information provided by ancestor members of a claimant group, that data also needs properly to be evaluated and regarded in the final consideration of all the evidence on boundaries.
133 All that said, the data assembled by Kingsford and Dunn provides more support for the evidence of the Aboriginal witnesses about boundaries than other (earlier) ethnographic data because it appears to include more of the claim area within those traditional boundaries and was based on information supplied by persons who identified as Badimia, including Joe Benjamin (who is mentioned further below in the discussion of the claimed apical ancestor, Timothy Benjamin).
134 Prior to Fink's and Kingsford and Dunn's research, Tindale had been in the field, first in the late 1930s and later in the mid-1960s. Tindale's epic works, including his Aboriginal Tribes of Australia (Australian National University Press, 1974) have been referred to by the anthropologists. In 1939 Tindale apparently acquired information concerning areas in the Murchison from Aboriginal people at the Moore River Native Settlement, well to the south-west of the claim area. One of his 1939 informants appears to have been Jimmy Little, son of Polly Little (another of the claimed apical ancestors discussed below). In 1940, Tindale produced a map which effectively located four groups, none of them Badimia by name, in the claim area - the "Kela:Mai", "Widi", "Wardal" and "Waula".
135 There is reason not to put terribly much store on this first Tindale map and its "tribal" country allocations. Dr Brunton was not convinced by it and Mr Robinson gave it even less weight. One of the problems is, as both anthropologists agree, there never was a tribal group known as the "Wardal" - that was simply a directional term, that is, an Aboriginal word indicating the direction in which other Aboriginal people lived. Thus, those other Aboriginal people appear to have become "the Wardal people". Indeed, according to Mr Robinson, Tindale later appears to have accepted that the expression was a directional term.
136 This information rather supports the view expressed by Mr Robinson that Tindale's data in the broader region of the claim area was, when compared with his data in other areas of Australia, "weak".
137 So far as the reference to the Widi people on the map is concerned, Dr Brunton and Mr Robinson both agreed that Wally Walter, aka Walter Ninghan, provided that information to Tindale, again apparently while he was at the Moore River Native Settlement. Wally Walter was the son of Ninghan Freddie (another of the claimed apical ancestors discussed below).
138 Whether Widi is but another name for, or a sub-group of, the Badimia is an issue discussed further below. The State submits no, the claimants yes.
139 Tindale continued his Australia-wide research over many years. In his 1974 map, accompanying his Aboriginal Tribes of Australia, he identified a group called "Barimaia" as occupying some of the claim area, but maintained the view from his 1940 map that other parts of the claim area were identified with the Widi and "Kelamaia", as well as, "Ko:ara" coming in from the east. The Barimaia area correlated with what was previously the Wardal area on the 1940 map. The anthropologists accept, as the Court does, that Tindale's "Barimaia" equate with the Badimia.
140 As Mr Robinson said in cross-examination, there are numerous broken lines on Tindale's 1940 map which may indicate that there were a number of approximations in Tindale's mind at that time. The Court also notes Mr Robinson's evidence about how Tindale has the "Kela:Mai/Kelamaia" (usually accepted as being more towards Southern Cross) venturing too far towards the Badimia area. His ethnography leaves questions hanging. This all goes to suggest that ethnographic research concerning the traditional country of language groups or other, local groups in the vicinity of the claim area was still, for Tindale, at a developmental stage as at 1939, leading to Tindale's 1940 map. The 1974 map, while showing some advance in Tindale's research by including the Badimia, does not, in the circumstances, remove all queries about the reliability of his underlying research.
141 Nonetheless, Tindale's data does not equate Badimia country with the claim area at any stage.
142 As a result Tindale's research data, as of 1940 and 1974, must be approached with a degree of caution.
143 The Widi have been mentioned now a number of times. In 1966, Tindale, while conducting further research, spoke with Maggie Bell, amongst others. It is accepted that Maggie Bell, who was born at Paynes Find, then described herself as Widi. While there was some discussion between the anthropologists about exactly what Maggie Bell said to Tindale, the Court accepts the following record of the discussion, provided by Mr Robinson reading from Dr Fleet's 2003 report, as being reliable:
According to Mrs Bell: their Widi country went north heading to Mount Magnet and they went there for meetings. Their country cut off at Yalgoo and they went north-west to Mullewa. The Wajarri people called the Widi the Minango (southerners). We (the Widi) call them bialja. Yalgoo itself is bialja country. Barimaya is another name the Wajarri gave to the Widi; we call ourselves Badimaya. This is the same tribe, same language and laws. Widi is what we call ourselves in talking; it means 'no'.
144 On that basis, Mr Robinson expressed the opinion that Widi and "Barimaia"/Badimia at all material times were the same - same tribe, same language and same laws.
145 In the early 1930s and again in the late 1930s or early 1940s, the American anthropologist Davidson also conducted anthropological research in relation to the Murchison area, among others. In his second tranche of research, Davidson appears to have been aware of Tindale's work as of 1940.
146 In his research notes, Davidson identified a group that he called "Bardimaia". His data was meticulously written out on index cards, referred to at the hearing as "vocabulary slips". It appears that Davidson had a Badimia informant because he made a note to that effect.
147 It would appear that the vocabulary slips, which went into evidence as exhibit 42, were made by Davidson during his second period of work in Australia as they are drawn from a manuscript collection dated "c1942". That would appear to be a correct dating because, in vocabulary slip number 266, Davidson makes reference to Tindale and the "WIDI" - which would appear to be a reference to Tindale's 1940 map.
148 In vocabulary slip number 266 Davidson wrote:
WIDI-WONGA widi, no in BARDIMAIA. Natives around Mount Magnet apply to dialect spoken from there to Yalgoo and Mullewa in BARDIMAIA. Tindale, p. 213, accept WIDI, WIRI as tribal name.
From KANDARI to WAGJRI, wadji, no.
The reference to "Tindale, p.213" correlates with page 213 of Tindale's "Distribution of Australian Aboriginal Tribes: A Field Survey" (1940) Vol 64 Pt 1, Transactions of the Royal Society of South Australia, pp 140-231.
149 The underlining of "widi" and "wadji" in this vocabulary slip is obviously a reference to the meaning of those Aboriginal words - meaning "no".
150 Vocabulary slip number 275, in relation to "Bardimaia" specifies:
Tribal name for Aborigines at Mullewa, Three Springs, Mingenew, Paynes Find and south of Yalgoo. Territory includes much of area assigned WIDI by Tindale, p. 213. widi, no.
151 Then in vocabulary slip number 292, for "Kandari", Davidson wrote:
Mount Magnet, Biringara, Sandstone, Meekatharra, Nannine, Cue. Their dialect said to be understood as far as milly-milly. BARDIMAIA at Mingenew associate KANDARI with Cue and eastward.
152 Again, it is difficult to construct any strong conclusions on this data of Davidson. It leaves unanswered questions of traditional association around Mount Magnet. As Mr Robinson also pointed out, "Kandari" is not a language group name, so that adds to the complications. He pointed out there was a site called Kandari and that may have something to do with the name. But, in his notes, Davidson is drawing a distinction, apparently, between his "Bardimaia" and Kandari.
153 It is also interesting to note that, in vocabulary slip number 292, the second sentence makes it clear that Bardimaia at Mingenew associated Kandari with "Cue and eastward", which is to say with an area to the north and east of Mount Magnet and not necessarily including Mount Magnet.
154 As to the first part of vocabulary slip number 292, the reference to Mount Magnet, along with the other places mentioned, appears to relate to the extent to which the "dialect" spoken by people identified as Kandari is spoken. That does not necessarily indicate that the Mount Magnet area itself was part of the traditional country associated with that "dialect", but it certainly raises the question of whose country that area traditionally is. A case can be made that, on the face of it, the Badimia at Mingenew were not identifying the Mount Magnet area as Badimia.
155 So far as the references to the Widi and the Bardimaia/Barimaia/Badimia are concerned, the Court considers that there is much in the vocabulary slips of Davidson, when combined with the statement later made by Maggie Bell to Tindale, and the evidence of the Aboriginal witnesses referred to in the above submissions of the claimants, to conclude, on the balance of probabilities, that no significant distinction was drawn in times long past between some group called "Widi-Wonga" or "Widi" and the Badimia. It is clear enough that the word Widi means "no" in the Badimia language, suggesting a least a close relationship between the two.
156 There is no strong evidence in the ethnographic material, in the view of the Court, to disprove the firm statements of the Aboriginal witnesses at the hearing of this proceeding, that the territory associated with the Widi was also associated with the Badimia. The 1980s work of Kingsford and Dunn also tends to support the claimants' assertions in this regard, making no relevant mention of Widi.
157 We then come to Bates, the first ethnographer to obtain data having relevance, for present purposes, to the claim area. From evidence before the Court, Bates at least as early as 1903-1904 had exhibited interest in Aboriginal research. At that stage she was engaged as a journalist for the Western Mail and when travelling in different parts of Western Australia appears to have obtained information concerning Aboriginal peoples.
158 The evidence suggests that in 1903 Bates was commissioned by the Western Mail to report on mines in Peak Hill, Meekatharra, Nannine and other centres and, in 1904, was commissioned by the Western Australian Government to research and write an account of the languages of the State's Aboriginal peoples. That commission was later extended to cover culture and social systems and she held this position until 1912.
159 I accept the opinion expressed by Mr Robinson, following his cross-examination that in the earlier period of her engagement it does not seem that Bates conducted formal anthropological research. As Mr Robinson suggested, it may have been that in the process of her work as a journalist investigating mining centres, she collected information about Aboriginal people, but there does not seem to be a body of material in her notes or publications that stems from that earlier period. To the extent that some writers have suggested to the contrary, what Mr Robinson says seems to have weight.
160 Mr Robinson said that he was not saying definitively that Bates did not make any inquiries about Aboriginal culture as early as 1903-1904, for plainly she had an interest in Aboriginal issues and had had the interest for some time. But it was not true to say this was the focus of her work in the earlier period.
161 In that regard, Dr Brunton considered, fairly in my view, that Bates was "opportunistic" and that she continued to obtain information relating to Aboriginal peoples while she was engaged as a journalist in this earlier period.
162 I also note that Mr Robinson questioned whether Bates was commissioned by the State in 1904, because the later work, as he understood it, did not take place until 1908. I accept it is one thing to be commissioned to produce a work, and another actually to produce it.
163 On any view it appears that Bates, motivated by a strong interest in Aboriginal culture in Western Australia, sought to bring herself up to speed by reading numerous materials in the early part of the 20th century once she was commissioned by the Western Australian Government to report on Aboriginal languages. See generally White, "Daisy Bates: Legend and Reality" in Marcus J (ed), First in their field: Women and Australian Anthropology (Melbourne University Press, 1993).
164 Mr Robinson accepted, however, as does the Court, that Bates did proceed to conduct what might be called substantial research in the area in 1908 and then again when she returned to Sandstone in 1910. In 1908 she was in the Bernier and Dorre Islands well to the north-west of the claim area. In between, in 1910-1911 she was in the Sandstone area, and then on Rottnest Island.
165 The anthropological work and methodology of Bates, however, was not commended by Mr Robinson. Mr Robinson, for example, expressed the view, based on his familiarity with her data (which I accept he has), that she was not an impeccable researcher. So far as her work was concerned, Mr Robinson said he was more likely to rely on the published version of her work, in White (ed), The Native Tribes of Western Australia (National Library of Australia, 1985) than her unpublished notes.
166 What Bates' data appears to indicate (in either source) is that, on the coastal side of a rough line drawn from near Roebourne, near the Pilbara coast, south, and not far inland from the coast, taking in the south-west (Bibbulmun) region of Western Australia, traditional male initiation rites were not conducted (by comparison to male initiation rites that were conducted on the inland side of this imaginary line). (The Court here, and earlier, has chosen to use the expression "male initiation rites" or "initiating rites" rather than the particular term used by Bates (and in submissions) to avoid raising concern by claimants and other Aboriginal readers as to the unthinking reference to sensitive cultural practices.)
167 Bates suggested a "Nor'west Nation" of non-initiating "tribes". A question arises whether her notes suggest this "Nor'west Nation" included a group who she described as the "Baadeemaia" said to be about Mingenew and Yandanooka (her "Yandanuka") - although in one place she appears to spell the name of this group as "Badi-maia", in the same way as she does the group she identified near Sandstone. Bates appeared to contrast that group (which Dr Brunton for ease of reference calls the "western Badimia") with the Wajarri, who were found by Bates to conduct the initiation ceremony. . It may be noted Bates' identification of Baadeemaia around Mingenew and Yandanooka generally accords with Davidson's data that the "Bardimaia" were, amongst other places, at Mingenew.
168 Bates' observation was that this group "belonged to [the initiating tribe] the Wajjarri, but called themselves locally Badimaia".
169 It is difficult to understand exactly what this statement is intended to convey in light of her apparently broader statement that members of the Nor'west Nation (including the Baadeemaia) did not practise male initiation rites - unless, despite Dr Brunton's suggestion that Bates simply mis-spelled "Badimaia" - three times - in this note, intending to write "Baadeemaia" - she was here referring only to the eastern "Badimaia" group. But this seems unlikely given the context in which Bates was making these observations - that is, in relation to the people in the Mingenew area, not near Sandstone.
170 In cross-examination counsel for the State suggested to Mr Robinson that there would be no reason to list the Baadeemaia separately if they were merely a subset of Wajarri. Mr Robinson said that he did not know and Bates might have considered it important because that is how they identified themselves. Mr Robinson did not accept an interpretation, on the face of the material, that Bates had clearly said, in other parts, that these groups, including the Baadeemaia, did not perform the initiation rite.
171 Bates' material suggested that a group called "Batiga", "was also a local section of the Wajarri tribe, which had encroached westward".
172 Counsel for the State suggested to Mr Robinson that this was an example again of the influence of Wajarri encroaching westward and Bates was not suggesting that the groups traditionally performed the initiation rite or were in fact part of Wajarri; but was simply noting the influence of the initiation rite of the Wajarri which was encroaching, through intermarriage and movement, towards the west.
173 Mr Robinson did not readily accept that proposition in cross-examination and said the difficulty he had with it was that the "Batiga" statement was of encroachment not to the west, but to the south, as evident on Bates' map showing the "Batteega" south or south and east of Lake Moore.
174 The Court notes it might also be said that Bates' statement about the "Baadeemaia" unequivocally suggests that the group belonged to the Wajarri. The note about the "Batiga", however, suggests that it was a separate and distinct group from the Wajarri which had been influenced by Wajarri customs, including the initiation rite.
175 In the end, the Court draws the view, so far as the relevance of the Bates' data concerning initiation rites is concerned, that Mr Robinson was correct to observe during cross-examination that the data demonstrates that it is not easy drawing lines on maps and then saying people on one side are one thing and people on the other side are another thing. The Court generally accepts Mr Robinson's observation that it goes back to the point - that both anthropologists made - about mobility of Aboriginal people at the point in time Bates was collecting data, and that people from many areas could then be found residing away from their traditional country in other parts of the State. There is, however, a certain consistency in the data of Bates and Davidson, and indeed of Tindale from 1974, that has the Badimia traditionally based around Mullewa, Mingenew and not so far as Mount Magnet. Fink's data fits that pattern too.
176 The further point, however, was also reasonably made by Mr Robinson, including in the course of cross-examination, that, if one inspects the map that Bates used in the course of noting the information she received, it is clear she made various stops on the train ride, first from Perth to Geraldton and then from Geraldton to Sandstone, collecting data along the way. In his view, it cannot easily be concluded that when Bates noted that people of a particular defined group were at a particular location, that location was necessarily their traditional country. However, the Court observes nothing in her notes suggests that her data should not be construed in that way.
177 Mr Robinson also provided the following explanation. He said that he had discovered recently that, in the 1910 trip to Sandstone that Bates did with the visiting British anthropologist, AR Radcliffe-Brown, she spent five days in the Carnamah area (outside the claim area) prior to Radcliffe-Brown's arrival, with one Grant Watson. She made the observation in her file that when she went there with Watson she found people from as far away as Roebourne camped at some of the pastoral stations. Mr Robinson said that when Bates made statements of that kind, she also noted people who have had the male initiation ceremony performed. He was not sure that she was talking about people who were from outside the district. Mr Robinson did not accept a proposition put to him by counsel for the State that Bates was endeavouring to distinguish those people from her Baadeemaia. Mr Robinson considered that all Bates was saying, was that the people she mentioned had their "habitat", whatever that means, where she noted it was. I think, in all the circumstances, the reference to "habitat" may be taken at least as a reference to where those people usually lived, if not to part of their traditional country.
178 Mr Robinson said, and the Court is inclined to accept this observation (notwithstanding Dr Brunton's concern Mr Robinson was a little too negative about her work), that what Bates wrote was not a piece of detailed field research. She was often at a place for a day and a half, interviewing various Aboriginal people who happened to be there at the time. As Mr Robinson said, such data hardly seems to be the basis upon which to reach important conclusions about the location of particular groups and the elements of their social organisation, religion and ritual. However, the Court considers the data cannot be ignored and provides relevant information to be weighed with that of other researchers.
179 While, on behalf of the State, counsel suggested that the "Baadeemaia" or "western Badimia" (to use Dr Brunton's expression) were also distinct, as a non-initiating group limited to locations at Yandanooka, Arrino, Three Springs, Mingenew and Woriano Spring, all outside the claim area (which all suggests Bates' other data as to the location of Badimia traditional country is also likely to be reliable), Mr Robinson was not prepared to interpret Bates' data in that way. The Court accepts the caution expressed by Mr Robinson in adopting that approach but, as noted, considers the data has relevance, especially when read with the other data referred to, and must be weighed with all other relevant ethnographic data and the claimants' evidence.
180 Mr Robinson was also taken by counsel for the State to an enlargement of the map that Bates used on which next to the word "Baadeemai" appeared a small triangular portion that included Mingenew and Yandanooka. Counsel for the State suggested to Mr Robinson that what Bates had done by drawing those lines was effectively to extend out a triangular area of non-performance of the initiation rite in respect of the "western Badimia".
181 Mr Robinson did not agree with that proposition because he thought that what the lines represented was the location at which she collected information, but he thought it was possible that what Bates represented here was that she went to Mingenew and Yandanooka, both on the railway line, and while there went to various out camps and found people who identified as "Baadeemaia". Mr Robinson did not think one could draw the conclusion from the field data that she was therefore saying that this is where there was a line of performance and non-performance of ritual. He thought she just happened to find people who had not been through that particular ritual. He did not consider that any more could be made of it than that.
182 Again, while the Bates' data raises the questions that counsel for the State raised with Mr Robinson in cross-examination, the Court does not consider that it can reliably draw conclusions about the cultural practices of the "Baadeemaia" identified by Bates, as a general proposition, in all of the circumstances: or exactly where, on this type of map marking, the traditional country of the Badimia ran.
183 By way of contrast to the areas marked as "Baadeemaia" on Bates' map, counsel for the State also noted that near Sandstone, quite a way to the east of Mingenew, a slightly different word, "Badimaia" had been written by Bates. Dr Brunton for ease of reference referred to this apparently separate group as the "eastern Badimia".
184 As counsel for the State also noted in cross-examination of Mr Robinson, if one looks at that map of Bates, between Mount Magnet and the "Baadeemaia" at Mingenew and Yandanooka (the western Badimia), and the Sandstone "Badimaia" (the eastern Badimia), the word "Wirdiwonga" appears. And then between about Yalgoo and Mount Magnet the word "Wadhari" (Wajarri) appears. Further from there to the south and west the name "Thowarngoo" appears, which is written on the map west of Lake Moore.
185 It is also apparent from the copy of the original map worked on by Bates that she endeavoured to colour in different areas and sections of the map of Western Australia in order to identify the boundaries of language groups, as she understood them to be from the work she had done. It indeed would appear to be the case that that is what Bates was attempting to do. Mr Robinson said at one level that was so and he pointed out, for example, that Bates was associating the "Wanmala" with a broad region near the claim area but then said that immediately near Sandstone there is an exception, in that Bates has located the "Badimaia" at Sandstone, within what she had hatched as Wanmala language country.
186 Mr Robinson considered therefore that, as Bates obtained additional material, for example following her visit to Sandstone with Radcliffe-Brown in 1910, she updated her representations. Mr Robinson speculated that when Bates was in Sandstone in 1910 she spoke to Aboriginal people camped there while receiving rations from the Sandstone ration station, and found a number were from Mount Magnet. Those people identified as Badimia and so she inserted them on the map at Sandstone. Mr Robinson described this as his "supposition", which I think is about as far as one can take it.
187 The Wanmala area on the Bates' map depicted a relevant boundary generally running down through Nannine and Cue, more or less to where the townsite of Mount Magnet is, around Mount Kenneth and almost to Lake Moore before heading off in a south-easterly direction.
188 The result of this survey of the Bates' data is that it suggests, as of circa 1910, there were "Baadeemaia" near or inside Bates' initiation rite boundary line, to the west and south of the claim area (being Dr Brunton's western Badimia), another group of "Badimaia" in the Sandstone area (Dr Brunton's eastern Badimia), the Wirdiwonga in between, and the Wanmala otherwise traversing an area coming down from Cue, near Mount Magnet and across to Lake Moore, all within the current claim area.
189 On that basis, if one were to draw conclusions roughly based on the data of Bates, whether one focusses on the western Badimia or the eastern Badimia, or both, little of the claim area would be within Bates' generalised Badimia locations.
190 The Bates' data also suggests that, when at Rottnest Island in 1914, Bates spoke to an informant who identified as "Badimaia" from the Sandstone area, one Baueljara. With his cooperation she apparently drew a map of his country. It would appear to depict country to the east of Sandstone, outside the claim area. There may, however, be some reasonable debate as to the topographical accuracy of the map in relation to Sandstone. Mr Robinson's observation may generally be accepted that one cannot read this hand-drawn map as one would a European map. There are many more places including a place called Challa, which he thought was the pastoral station of that name, which were in or near the claim area, but not represented in that way by this hand-drawn map. He also thought that the location noted as "Yunmiri" may be Youanmi, which while not within the claim area was near to it.
191 Counsel for the State finally put to Mr Robinson the proposition that none of Bates, Davidson, Tindale, Fink, Kingsford or Dunn (or other early ethnographers) provide an account of traditional Badimia country that looked like the claim area, for which he (Mr Robinson) thought there was evidentiary support in the evidence of the Aboriginal witnesses. Mr Robinson responded by saying that it depended on how one looks at the data as a whole: "they all generally locate Badimia people within the area that I would expect them to be at".
192 To the proposition that he was effectively "aggregating" the areas from the ethnographic data to identify a claim area in the proceeding, as Dr Brunton had suggested in his first report, Mr Robinson responded that "in a sense" that is what he was doing. Mr Robinson added:
I think it provides support. I don't think it matches exactly what other writers might say but I think it's consistent with Badimia being at these places. I don't assert that these all exactly correspond with what I understand through the witness evidence to be the extent of Badimia traditional country.
193 Mr Robinson further explained that the point he was trying to make was that the research conducted by others did not ascribe areas to groups at all. They were rough approximations. Fink put the word "Badimaia" on a typed map, for example. In that context, Mr Robinson considered that each one of the researchers was drawing lines on maps or putting words on maps for a variety of reasons and he did not consider that one could compare all those sources in the same way, except to say what he had said, which is that they are broadly consistent with the conclusion he would draw from the claimant evidence, that the claim area is within traditional Badimia country; "they're not widely inconsistent with that", he said.
194 The Court ultimately arrives at the position that, as noted earlier, there is no easy corroboration provided by research data from Bates' pioneering work, through Davidson, Tindale and then more recently Fink, and Kingsford and Dunn, that makes it at all reliably clear where Badimia country traditionally ran at sovereignty. While some of the claim area may well have been traditional Badimia country at sovereignty, by reference to this data, not all of it is so identified; and it is difficult to say, on this basis, what parts are to be included, and what parts are not. The data of Bates is confusing because while, on the one hand, the submission of the State, that the western Badimia in the Mingenew area were a non-initiating group (and not of the Wajarri) and had country well outside the claim area, is not readily to be dismissed, the fact is that Bates also obtained data that there was a "Badimaia" around Sandstone (on the eastern, initiating side of Bates' imaginary line). It is not at all clear that the western and eastern Badimia were separate and distinct groups with Widi in between.
195 The suggestion that a Wirdiwonga/Widi (which one may reasonably infer was the same group), on Bates' information, were between the western Badimia and the eastern Badimia adds to the uncertainties. If the Wirdiwonga/Widi are, as discussed above, treated as a part of, if not another name for, the Badimia, as the Court has inferred above that they should be, then linkages between the eastern Badimia, the western Badimia, and the Wajarri are provided and some of the apparent inconsistencies as to the location of traditional Badimia country may be said to fall away - but not all of them.
196 Bates' data also leaves quite open a close relationship of the Wajarri and the Badimia. They have, apparently, similar languages. The ethnographic evidence overall does not suggest a clear boundary between the Wajarri and the Badimia. The evidence of the Aboriginal witnesses, however, is that none of the claim area is traditional Wajarri country. Nor does the evidence suggest that the Wanmala ever came into the claim area traditionally, although there may have been interaction, including violent interaction in times gone past from neighbours identified as Wanmala; who, as Mr Robinson explained, are sometimes seen less as a traditional language group and more as mythical raiders.
197 This is, therefore, one of those difficult cases where the older ethnographic record is not definitive and not overly helpful to the resolution of the boundary conundrum; and the Court has not found its resolution easy. However, it must be said that, leaving aside Kingsford and Dunn's 1980s work, little of the other ethnographic data places or suggests that anything like the bulk of the claim area was traditional Badimia country at sovereignty. Different scenarios can be constructed by different skilful interpreters of it. Kingsford and Dunn's relatively scant work is the only such data which suggests that much of the claim area is traditional Badimia country.
198 In these circumstances, as Mr Robinson recognised, the strongest reason for concluding that the claim area corresponds with traditional Badimia country at sovereignty is that the Aboriginal witnesses say that it is, and, in effect, their evidence should sway the balance.
199 The difficulty with this contention, however, is that the direct evidence of the Aboriginal witnesses concerning boundaries was not always consistent and could not be said to represent some consensus about boundaries.
200 In this regard, as the State reasonably notes:
(1) Leah Bell and Ollie George stated that Badimia country went further west than the claim area but they did not extend Badimia territory beyond the boundaries of the claim area in any other direction.
(2) Ron Bandy, Roderick Hedlam and Frank Walsh Jnr agreed that the northern and southern boundaries of the claim area were generally correct and that Badimia country extended further west. However, Mr Bandy, Mr Hedlam and Mr Walsh also extended Badimia country east beyond the claim area.
(3) Ashley Bell, Percy Lawson and Alan Walsh were of the opinion that Badimia country extended further west and south than the claim area but they did not suggest Badimia country extended further north or east.
(4) Coral Brockman agreed with Mr Bell, Mr Lawson and Mr Walsh that the eastern boundary of the claim area was correct and also that Badimia country extended further west and south than the claim area. However Ms Brockman also extended the northern boundary of Badimia country beyond the current claim area.
(5) Darryl Fogarty, Gloria Fogarty, Olive Gibson, Des Thompson and Joan Walsh all stated that Badimia country extended further west, east and south than the claim area, but generally agreed that the northern extent of Badimia territory was Lake Austin, roughly coinciding with the northern boundary of the claim area.
(6) Beverly Slater extended the boundary of Badimia country beyond the boundary of the claim area in all directions while, in contrast, Frank Walsh Snr's description of Badimia country roughly matched the claim area.
(7) In addition, even among witnesses who said that Badimia country continued beyond the claim area in a particular direction, there was no consistency as to exactly how far those witnesses considered Badimia country extended. The boundary identified by any one individual, if mapped, was unlikely to coincide with one produced by any other person. Further, the variations between the boundaries given by the witnesses were not minor but, as noted by Dr Brunton, differed in the magnitude of hundreds of kilometres.
(8) For example, there were notable inconsistencies in the evidence given by the Aboriginal witnesses about the southern boundary of Badimia country and Lake Moore. In 2010, Darryl Fogarty stated that, as far as he knew, the southern boundary of Badimia country was at Whitewells Station, which would roughly coincide with the claim area boundary. However, in 2012 Mr Fogarty was insistent that all of Lake Moore was included. He said that he had always thought that this was the case, and was not sure why some of it had been left out of the claim area. It is not apparent why Mr Fogarty changed his mind in the two years between giving evidence. The difference between the two accounts is at least 70 kilometres.
(9) In 2010, Leah Bell, saying that she learnt about country from her elders, including her grandparents, uncles, aunties and mother, stated only that "Badimia country goes south to around Mount Gibson out to Perenjori", thus excluding a substantial part of Lake Moore. Her 2010 evidence was, therefore, consistent with Darryl Fogarty's 2010 evidence.
(10) However, in 2012 her son, Ashley Bell, said that he had learnt about country from his old uncles, Steve, Bill and Jim Clinch, and that he had always been taught that the whole of Lake Moore was part of traditional Badimia country. Mr Bell gave evidence that the boundary of Badimia country extended as far south as Wilgie Hill, just out of Pithara (south of Dalwallinu). Mr Bell seemed surprised that half of Lake Moore was excluded from the claim area, but even so, he reiterated that the Clinch uncles had told him all of Lake Moore was included. Earlier, however, Mr Bell had said that "boundaries were never really spoken about in great detail when we were young".
(11) Alan Walsh and Joan Walsh both said that PG (Mr P George) had told them that Dalwallinu was part of Badimia country, and by implication this would probably include at least the greater part, if not all, of Lake Moore. Percy Lawson said that his father had told him that the boundary went "down to Dalwallinu, round the end of Lake Moore, then back out … before Cue". Other witnesses who said that Badimia country included all of Lake Moore were Beverly Slater and Coral Brockman.
(12) On the other hand, Frank Walsh Jnr said that the southern border of Badimia country was Whitewells Station, and explained that this was where the country changed, and "the mulga country start kicking in". Similarly, Frank Walsh Snr also stated that "past Whitewells south is the Noongars". Roderick Hedlam agreed that that the southern boundary was around Whitewells Station and Mount Gibson. The Wajarri witness, Lance Mongoo, said that he "was told by old Badimia people like old [Mr P George] that the Badimia country went south to Perenjori and Whitewells Stations".
(13) There were also inconsistencies regarding the eastern extent of Badimia country. A number of witnesses did not extend the eastern boundary of Badimia country beyond the current application but many other witnesses did so to considerably varying degrees.
(14) Both Roderick Hedlam and Gloria Fogarty stated that Badimia country went east to Leonora. Similarly, in 1998 interviews, Mr P George, RL (Mr R Little) and Muriel Little also stated that Badimia country went as far east as Doyles Well near Leonora but that the Badimia had been pushed westward by the Wanmala. HL (Ms H Little), in a 2007 interview, also stated that "if you go over to the Leonora side … they say Badimia started at Doyles Well … I know some people talk about [it extending] almost to Menzies or Diemals or somewhere around that way". Ms H Little's uncle, AL (Mr A Little), told Mr Chambers in another 2007 interview that "the Badimia had the biggest boundary of all the tribes in the region - in the whole State more or less" and that it started in Doyles Well in the east. In 2006, Mr Tony Green, a Wanmala man fostered by named apical ancestor Eva Renie, stated that "the Badimia belong to Leonora to Lawlers and Sandstone and Youanmi. But they not belong Magnet … But the kids [the younger generation] don't know w… Them Kuwara [Ko:ara] shift them Badimia to that way [Mt Magnet]" (as recorded by Mr Chambers).
(15) However, Olive Gibson and her brother, Des Thompson, both stated that Badimia country extended east only to Agnew and Lake Barlee (located approximately 125 kilometres west of Leonora). In contrast, a number of other witnesses gave evidence that Badimia country extended only as far east as Sandstone, approximately 45 kilometres east of the application boundary and 200 kilometres west of Leonora. For example, Ron Bandy stated that the eastern boundary of Badimia country was 30 or 40 kilometres east past Windsor Station (just west of Sandstone). Frank Walsh Jnr stated that the eastern boundary was "nearly to Sandstone", while Darryl Fogarty said it was "just this side of Sandstone". Similarly, Joan Walsh gave evidence that Badimia country extended "east out to Sandstone", while Beverly Slater said it was "up to almost Sandstone".
(16) Similar discrepancies arise in respect of the western boundary of Badimia country. For example, the boundary was extended the furthest west by Roderick Hedlam who stated that it went west to near Kalbarri, on the coast at the mouth of the Murchison River. While not giving such an expansive description of Badimia country as Mr Hedlam, Olive Gibson said that Carnamah, Mingenew and Mullewa were all in Badimia country. Similarly, Darryl Fogarty gave evidence that Badimia country extended to Mingenew in the west. Leah Bell placed the boundary slightly further east, stating that Badimia country included Perenjori and Morawa but did not go as far as Mullewa. Percy Lawson also stated that Badimia country included Three Springs and Carnamah, extending to a point between Mingenew and Mullewa. However Clarrie Cameron, a Nhanhagardi man, stated that Perenjori was his country and that Badimia country was to the east. Mr Cameron stated that "our country [Nhanhagardi/Wilinyu country] has Three Springs, Morawa and Coorow".
(17) In contrast, a number of witnesses stated that Badimia country went only as far west as Yalgoo (or thereabouts). For example, Ollie George said that "Badimia country ends at Edah station now, but it should be out to Yalgoo when you are heading west to Wajarri country". Ron Bandy also stated that the old people told him that Badimia country goes west to Yalgoo about 15 kilometres towards the Rabbit Proof Fence. Beverly Slater said that "we were always told by the elders it was… west around Yalgoo". Coral Brockman stated that the boundary went "further out Yalgoo way", while Gloria Fogarty stated that Badimia country went to Yalgoo in the west. Alan Walsh said that Mr P George told him that Yalgoo was in Badimia country and that the western boundary was between Perenjori and Yalgoo. Similarly, Joan Walsh stated that the western boundary was "about 20 kilometres this side of Perenjori."
(18) However, a number of other witnesses gave evidence that Badimia country did not extend as far as Yalgoo. When interviewed in 1998, Ms C George said that Yalgoo was Wajarri country, and that she had been told this by the old people. Frank Walsh Jnr told Mr Chambers in 2007 that his grandfather and father told him that the western boundary of Badimia country "goes across to the Rabbit Proof Fence around the Boat Rock area and down towards Yalgoo - this side of Yalgoo". However, when Mr Chambers asked his father, Frank Walsh Snr, he said that his father never spoke to him about Badimia boundaries, and it seems that he "just learned from the white fellas". But he did not know whether Yalgoo was in Badimia country. However, in 2010 Mr Walsh Snr gave evidence that "Yalgoo is out of Badimia country".
(19) The only current boundary about which there could be said to be any level of agreement is the northern one around Lake Austin although, even here, there was evidence from a number of witnesses who thought that it should go further north. These include the Nhanhagardi man Clarrie Cameron, who in 2007 told Mr Chambers that Day Dawn (around 20 kilometres outside the claim area) was the boundary, which also seemed to be Mr Cameron's evidence to the Court in 2012. Similarly, Coral Brockman said that the Cue and the Big Bell mine were in Badimia country, while Beverly Slater also agreed that Cue was in Badimia country. However, Wajarri man, Lance Mongoo, gave evidence that Cue and Big Bell were part of his country. In contrast, Mr A Little told Mr Chambers in 2007 that Badimia country extended as far north as Meekatharra.
(20) Additionally, an examination of the reasons given by the witnesses for drawing the boundary of Badimia country in a particular place suggests that the witnesses have often come to think of certain places as Badimia because they or their parents (or another Badimia person) resided or worked there.
(21) For example, in 2006 Roderick Hedlam told Mr Chambers that Badimia country "used to go to Wuraga, not far from that, because dad used to work all through there" (although Mr Hedlam's father was not a Badimia man, but from the Peak Hill area north of Meekatharra), and "it goes right down to Jibberding because one of my brothers was born there see". Similarly, in a joint interview that Roderick Hedlam and Ted Fogarty had with Mr Chambers in 2006, when asked about the Badimia boundary Mr Fogarty said, "they reckon there is an old map with the original boundary but they only marked this one out where their grandparents have been working around on different stations". Mr Hedlam agreed, "yes, that's all it is", with Mr Fogarty adding "because that's all they could remember".
(22) In his 2012 evidence to the Court Darryl Fogarty gave a couple of explanations for thinking that Mingenew was part of Badimia country. One was that Mr Peter Bell and his parents used to live there, and because Mr Bell had said it was Badimia and knew some of the stories from there. When asked whether this meant that Badimia country was constituted by places where his and other Badimia families had resided and worked, Mr Fogarty said "yes, well, usually they're on their traditional country. If they know the language and the sites and everything like that, that's their country." When asked whether Badimia boundaries changed over time depending on where people lived Mr Fogarty stated:
Well, I guess they do. They slowly get pushed sort of out, and being farming country there's - there's no real evidence left down that way anymore. Whatever stuff was there it's gone to prove that there was ever, well, Badimia people living down that way. They're probably, yes, all gone.
(23) Another reason why Mr Fogarty thought Mingenew was Badimia country, was because minga means ant in the Badimia language and "there's supposed to be a small pointy hill there [at Mingenew] with caves like a white ants' nest". When asked whether any other people had the same word, Mr Fogarty said "not that I know of". However, as noted by Dr Brunton, minga is the word for ant in many Aboriginal languages of Western Australia, including Wajarri. Mr Fogarty also said that his father told him that he thought that Morawa was Badimia country because marruwa is the name for the little kangaroo rat (actually rabbit-eared bandicoot). Again, a word similar to marruwa is used for bandicoot in other Aboriginal languages of Western Australia.
(24) The notion that because a Badimia person was born or resided for a long time at a particular location they would have been Badimia was also suggested by others. Coral Brockman thought that Big Bell, which is about 30 kilometres north of the northern claim area boundary, was Badimia country because it was her birth place. Olive Gibson believed that the places where she lived as a young woman with her mother - Carnamah, Mingenew and Mullewa - were in Badimia country because her mother "used to say that Badimia people would never go away from their country". When asked whether Ms Gibson's mother had specifically stated that these towns were part of Badimia country, Ms Gibson responded "No, not exactly".
201 In response to the fact finding challenges presented by this evidence, the claimants rely on their primary submissions set out above and the view expressed by Mr Robinson that the boundaries of the claim area are conservatively drawn in relation to previous published and unpublished sources and evidence of the Badimia people themselves. The claimants also say, as has been recognised in a number of earlier decisions (such as De Rose v State of South Australia [2002] FCA 1342 at [908]; Commonwealth of Australia v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 at [335]), that a degree of imprecision and difference of opinion is to be expected in relation to Aboriginal concepts of boundaries.
202 The Court's real difficulty in this case, however, is that the degree of imprecision identified by the evidence referred to by the State goes beyond debates at the margins, about which one can expect the knowledge held by individual members of a traditional Aboriginal group to differ, depending on their status, familiarity with the area, and source of their information. In this case, the sources of the information provided to the Court by the witnesses, in particular, do not lead the Court to feel appropriately assured that the parameters of the territory described were based on information which had been passed down through the generations to the witness. The inconsistences reasonably identified by the State suggest that individual witnesses have been informed by a variety of different people from a variety of family perspectives. In many cases, their own understanding was impressionistic and apparently informed by where they, or their old people, lived at particular times. There was no real consensus about the metes and bounds of traditional Badimia country. The boundary evidence did not appear to have the force of an accepted body of Badimia knowledge about boundaries.
203 As noted, many witnesses tended to give an account of the boundaries of Badimia country very much from their own perspective, or their family's perspective, from where they collectively grew up and where they currently considered that their preferential right to speak for parts of Badimia country existed.
204 When one adds to that, as the Court finds below, that a number of apical ancestors cannot reliably be shown to be Badimia people by descent or persons with a traditional association with the claim area, the traditional provenance of the information possessed by a number of the witnesses must be questioned.
205 In the result, the Court is unable confidently to infer that the knowledge of present witnesses reliably describes the boundaries of traditional Badimia country as they were at sovereignty. This question is also related to the question of continuity, which is discussed further below.
206 In short, the difficulty the Court is faced with, is that it does not consider that the direct evidence of the claimant witnesses on the question of boundaries enables the Court to infer, on the balance of probabilities, that the Badimia boundaries at sovereignty included the whole of the claim area. While, as noted above, it would appear that parts of the claim area match up with some of the older ethnographic data, not all of the claim area so matches.
207 The Court considers it would be speculating if it were to find that the whole of the claim area is within traditional Badimia country.