Whether native title rights and interests are possessed with respect to the land south of Port Lincoln
673 The second issue for determination on this application is whether it can be said that the area of land south of Port Lincoln was Barngarla country at the time of sovereignty, or whether it was instead the country of the neighbouring Nauo group.
674 The question of the geographical boundaries of particular Aboriginal groups at the time of sovereignty has been a vexed question in many native title proceedings. That is because, as was emphasised by the expert witnesses in this proceeding, Aboriginal cultural groupings are not akin to European "nation states" - that is to say, they are not, and were never, political entities, and so there was never any need for them to be geographically demarcated with the precision one expects of nation states.
675 The Nauo Native Title Claim (proceeding number SAD 6021 of 1998) presently claims a wedge of land in the south-western quarter of the Eyre Peninsula. The Nauo people have made no native title determination application over any of the Barngarla claim area. I am not willing to infer from that fact that none of the Barngarla claim area was Nauo country. As counsel for the State argued, the bare fact of an absence of a Nauo native title claim to any land in the Barngarla claim area in 2013 does not necessarily prove anything about the extent of Nauo country at sovereignty. There are many potential alternative explanations. It may be, for example, that the Nauo people have formed the view that their native title rights over their traditional land that lies within the Barngarla claim area have been subsequently extinguished, and so there is no utility in making a native title determination application in respect of that land, or it may be that the Nauo people have formed the view that in the intervening years of upheaval, the Nauo have not maintained their connection by traditional laws and customs to that part of what was nonetheless their at-sovereignty country.
676 It is necessary in determining this question to turn first to the earliest accounts of the geographical distribution of the Aboriginal tribes of the southern Eyre Peninsula, provided by Schürmann. Schürmann wrote in a letter in 18 May 1842, reproduced in the McCaul 2013 Anthropology Report at 7-8:
The natives of Port Lincoln are divided into two principal tribes called in their own languages the one Nauo + the other Parnkallas. The former of these frequent the coast to the south and west of the settlement [of Port Lincoln] + live chiefly upon fish; they are generally speaking a strong race of people + often meet in comparatively large bodies … They differ considerably in dialect + custom from the other tribe [i.e. the Parnkalla tribe] + the males have the distinguishing mark of a small ring or circle engraved on each shoulder. The Parnkalla tribe are spread over a far greater extent of country from Port Lincoln to the northward beyond Franklin Harbour and over the greater part of the interior country. …
677 Schürmann also wrote on that same day:
… there was a numerous party of natives assembled on the southern Coast of Port Lincoln Proper [the name of a bay immediately to the south of Port Lincoln] … From the fact that the place where this body of natives was collected is in the Nauo country, [and because of their appearance], I felt persuaded, that they could be no other than the Nauo tribe.
678 Further, in a letter of 19 August 1844, reproduced in the McCaul 2013 Anthropology Report at 8, Schürmann wrote:
… Since being here I have come in contact with Aborigines of three, by their languages distinct, tribes, being the Parnkalla tribe which extends along the northern coast, northwards to the head of Spencer Gulf …; further the westerly living Nauo, …, and finally the northwesterly living Ngannityiddi [believed to be an alternative name for the group now commonly referred to as "Wirangu" (McCaul Report 2 p.10; Hercus and Simpson 2001:266)].
679 Finally, in his 1846 commentary, Schürmann observed:
The Parnkalla … [inhabit] the eastern coast of [the Eyre] peninsula from Port Lincoln northward probably as far as the head of Spencer's Gulf. The Nauo [language] is spoken in the southern and western parts of this district …"
680 All of these excerpts tend to suggest that the Nauo people were, at least in the 1840s, the inhabitants of the land to the south of Port Lincoln. That much appeared to be accepted by Professor Sutton and Mr McCaul. Dr Martin was not asked to address this question. However, that hypothesis was disputed by Dr Haines. Dr Haines instead purportedly relies on other comments of Schürmann, stating in oral evidence that:
…[T]here's also some detailed comment by Schürmann … about the ceremonies when two people [presumably, that is, the Nauo and Barngarla] meet: ceremonies, fights, whatever it might be. This … is in what I might call the interstitial area between Coffin Bay and Sleaford Bay. It's an area described by Schürmann [as], and indeed it is now, [consisting] of sand dunes. And in fact there's a Dreaming story of the creation of these sand dunes by Mantera [sic] and [Tatta] two birds, or bats, or whatever they might be …
… [Those sand dunes are] an area between the two [groups] and logically, it would seem to me, that one could extrapolate that perhaps the Nauo and the Barngarla would treat that as a sort of meeting ground where they might meet for ceremonies, they might meet for exchanges, they might meet for fights. … [I]t's a pretty inhospitable sort of area: sand hills, swamps and so forth. So my thinking on the basis of all that evidence … is that the Nauo were historically probably confined to the western area, except when they came over to visit, and the early sources talk about the Nauo visiting Port Lincoln - not residing there - and the Barngarla were on the east coast.
681 This appears to be the only basis upon which Dr Haines makes his claim that Barngarla country extended south of Port Lincoln at the time of sovereignty. Dr Haines does not extrapolate on exactly what ceremonies, exchanges and fights occurred between the Nauo and Barngarla at these sand hills in either of his tendered reports. Schürmann refers to the sand hills in question twice in his 1846 commentary on the Barngarla. Only one of those references is relevant for current purposes (the other is at p.240). It reads as follows:
The [nondo] fruit, which is much prized by the natives, grows in abundance among the sandhills between Coffin and Sleaford Bays, where it every year attracts a large concourse of tribes, and generally gives occasion for a fight. As a proof how much this bean is valued it may be mentioned that the Kukata tribe, notorious for ferocity and witchcraft, often threaten to burn or otherwise destroy the nondo bushes in order to aggravate their adversaries. (217)
682 That quotation demonstrates that Dr Haines is correct in saying that tribes met at these sand hills for fights. However, my attention has not been drawn to any other writing of Schürmann that refers to any "exchanges" or "ceremonies" occurring at these sand hills, despite Dr Haines' suggestion that Schürmann makes "detailed comment" of such events occurring there. Moreover, Schürmann makes clear that the only reason a "large concourse" of tribes gathered at the sand hills and occasionally fought was because of the abundance of nondo beans there, not because it forms the boundary between the Nauo and Barngarla. Yet further, Schürmann does not mention that the Barngarla and the Nauo tribes are amongst the tribes present. The only tribe he specifically mentions is the "Kukata" (Kokatha). Admittedly, it is a reasonable inference to make that the Nauo and Barngarla tribes would have been present at this "concourse" of tribes at the sand hills, given their proximity. But even if we accept that inference, it is not at all clear why the presence of the Nauo, Barngarla and Kokatha at the sand hills to collect nondo beans and occasionally fight over them forms a sound basis for the further inference that the sand hills must have been the boundary between the Nauo and the Barngarla.
683 Such an inference is also not supported when one considers the repeated positive statements of Schürmann himself about the extent of Nauo country, which quite clearly places the boundary between Nauo and Barngarla country somewhere around the township of Port Lincoln. Dr Haines appeared to attempt to overcome this difficulty by drawing a distinction between the township of Port Lincoln and the peninsula of Port Lincoln, and asserting that Schürmann "refer[s] to the Port Lincoln peninsula as distinct from the Port Lincoln settlement". (T1637, 5-10) There are certainly passages of Schürmann's writing where he seems to use "Port Lincoln" to refer to an area of land other than merely the township of Port Lincoln. However, if that observation is meant to suggest that Schürmann was actually saying that the Barngarla people were the dominant presence on the whole of the "Port Lincoln peninsula", rather than merely the township, that suggestion must be rejected. There is clear evidence to the contrary, most notably Schürmann's very specific declaration that the southern coast of Port Lincoln Proper Bay is Nauo country. Proper Bay is the bay immediately to the south of Port Lincoln and is to the north of the Lincoln National Park (the Jussieu Peninsula) at the south-eastern tip of the Eyre Peninsula. Sleaford Bay is on its southern side, so it appears that Schürmann did not regard the area south of the northern part of the Lincoln National Park as Barngarla country.
684 If Dr Haines' argument that the sand hills were the proper boundary between Nauo and Barngarla country is to be sustained, he would need to explain why Schürmann had not only failed to point out that the sand hills formed the Nauo-Barngarla boundary, but in fact formed and expressed a positive view inconsistent with that hypothesis. In the absence of any such explanation, I do not accept Dr Haines' view about the extent of Barngarla country at sovereignty.
685 It should be noted that Dr Rose suggests in his 2013 report that an assessment of place names is consistent with the Haines theory that the at-sovereignty Barngarla-Nauo border was at the Coffin Bay/Sleaford Bay sand hills. He states that "[o]n linguistic and geographical grounds, it is … more likely that the southern coast around Sleaford Bay was … traditionally Barngarla territory, rather than Nauo …" [22]
686 Dr Rose assesses a large number of Aboriginal place names around the Eyre Peninsula and concludes that they are all Barngarla names. Of those place names, about eleven relate to the land south of Port Lincoln within the claim area. Three of those eleven place names (Koodinga, Mikkira and Pillie) are merely names Dr Rose found on modern maps of the region. Their origin is unknown. Seven of them (Kannana, Kullipurra, Kuyabidni, Kallinyala, Kulinyalla, Punnu Mudla and Tannana) are place names that Schürmann recorded as being used by the local Aboriginal people. One (Tulka) is a placename that linguist-anthropologists Luise Hercus and J Simpson refer to in a study of the Nauo people. It appears that Hercus and Simpson obtained that placename from a modern map, not from a local Aboriginal informant.
687 Mr McCaul said in the McCaul Linguist Report that the place names other than those Schürmann recorded are unreliable: "At least we know that Schürmann had a refined ear for language, a consistent form of recording and worked directly with Barngarla and Nauo people. The origin and recording quality of other place names is much less certain." (Linguistic report, p.10) For this reason, and because of lack of time, Mr McCaul provided no criticism of Dr Rose's assessment of the four relevant place names that merely come from modern maps (or from Hercus and Simpson). Of those four names, it seems to me that only one of Dr Rose's ascriptions of a Barngarla meaning is plausible. That name is the name "Pillie" for a limestone rock deposit on the south side of Port Lincoln. The rock is described in Wilhelmi's account of the Aboriginal people of the Port Lincoln area:
They say there is a rock on the south side of Port Lincoln full of deep holes, an occurrence not uncommon in the limestone formations of this region, inhabited by a race of dead men, who come out in the night to eat ants' eggs … (Wilhelmi, 194)
688 "Peli" is a Barngarla word recorded by Schürmann as meaning both "the hardned [sic] paste found on the ant heaps …" and "the white of an egg". Given the above story relating to the Pillie rock, it does seem very plausible that the name may have its roots in this Barngarla word.
689 The other ascriptions of Barngarla meaning to place names from modern maps are largely unconvincing. "Tulka" is merely said to be a "name only". Hercus and Simpson say that "Tulka" is a Nauo word. Dr Rose says in his 2013 Report at [80] that their reasoning for that conclusion is merely that Barngarla words are unlikely to begin with "t". At [81], he counters that argument by pointing out that many Barngarla words begin with "t". That fact may disprove the hypothesis that "Tulka" is not a Barngarla word, but it certainly does not prove that it is a Barngarla word. "Koodinga" is said to come from the Barngarla for swan, "korti". That etymology seems very speculative. "Mikkira" is said to come from "meka", the Barngarla word for "bare or bald". Again, that seems only speculative.
690 Turning to the six place names originating from Schürmann, two of Dr Rose's suggested etymologies are convincing - those given for "Kuyabidni" and "Punnu Mudla". Kuyabidni is a body of intertidal water south of Port Lincoln now known as Sleaford Mere at about the western end of the Lincoln National Park. Dr Rose says it comes from the Barngarla "kuya", meaning fish, and "-bidni", meaning of. Mr McCaul comments that that etymology seems to be a direct correspondence. "Punnu Mudla" is now known as Kirton Point, a small peninsula of land within the township of Port Lincoln itself. "Punnu" is Barngarla for lagoon, and "mudla" means nose. Again, Mr McCaul comments that that etymology seems to be a direct correspondence.
691 Dr Rose's suggested etymologies for the other five place names, Kannana, Kullipurra, Kallinyala, Kulinyalla and Tannana, are not, in my view, convincing. "Kannana" is said to originate from "kanya", stone, and the suffix "-nga". Mr McCaul, however, asserts that this etymology cannot be so because Schürmann would not have confused the /n/ and /ny/ sound, a distinction of which he proved elsewhere to be cognisant. "Kullipurra" is said to come from "kulli" for "stunted she oak" and "purre" for hill. Mr McCaul disputes that "kulli" is Barngarla for "stunted she oak". He says it is "kullindi" or "kurdli bakka". That is what is recorded in Schürmann's dictionary. "Kallinyala", the Aboriginal name for the area of Port Lincoln, is said to originate merely from a proper noun, "kallinya", with a directional suffix "-(d)la", meaning "toward". It is not made clear why "kallinya" is a Barngarla proper noun, and cannot be a proper noun in some other language. The remarkably similar-sounding "Kulinyalla", the name for a place near Sleaford Bay, is said to come from the Barngarla "kulilyala", meaning "seed vessel of casuarina". Mr McCaul notes that this etymology requires one to assume Schürmann incorrectly recorded one of these terms, or that there is some linguistic variation in regard to the word for a seed vessel. Finally, "Tannana", a name for Sleaford Bay, is said to come from another proper noun, "tanna", with the suffix "-nga". Again, it is not clear why one ought to assume that "tanna" is a Barngarla proper noun, or why Schürmann would have again overlooked the /n/ and /ny/ sound distinction when recording "Tannana" (instead of "Tannanga").
692 In conclusion, there are three Barngarla etymologies for southern Aboriginal place names that appear plausible - "Pillie", "Kuyabidni" and "Punnu Mudla". Of course, the strength of all of this evidence is affected by the fact that this sort of placename analysis is very obviously greatly problematic. Mr McCaul, for instance, in his 2013 Linguistics Report at [37], questioned the worth of this exercise, noting that "in the absence of culturally knowledgeable informants the etymology of the place names advanced by Dr Rose will inevitably remain largely speculative." Moreover:
Dr Rose does not explain the methodology he adopted in analysing the etymology of the placenames, but it appears to me that his approach essentially consisted of searching through Schürmann's dictionary to identified [sic] lexemes and morphemes that could match the recorded names. Given the circumstances I think this is really the only available methodology, but in my view it is reliable only in the exceptional circumstances of a precise match of terms … In all other instances there will remain varying degrees of uncertainty.
693 Professor Sutton, though not an expert linguist, also made valid points in oral evidence about the fallibility of placename analysis, making the obvious point that many European place names are not based on English words, or have no meaning in any language. There is no reason to think that Aboriginal place names are different, and will always have a meaning, and that that meaning will always be in the language of the local Aboriginal group, and not the language of a group from elsewhere.
694 An additional difficulty is the similarity between the Barngarla and Nauo languages. Mr McCaul in his capacity as a linguist noted in oral evidence that he was of the opinion that "one [cannot] distinguish between … Nauo and Barngarla place names … on linguistic data alone. … [T]here may be the odd anomaly, but just … taking places from maps and then trying to reinterpret them today, I don't think that we can get very far with that."
695 For those reasons, I am not willing to find that the Barngarla people's country extended south of the township of Port Lincoln, contrary to the repeated attestations of Schürmann, merely on the basis that there are three Aboriginal place names south of Port Lincoln that are plausibly based on Barngarla words.
696 In all the circumstances, I find that on the balance of probabilities, the boundary between Nauo and Barngarla country or more accurately the extent of Barngarla country lay somewhere around the vicinity of Port Lincoln, and that the lands to the south of Port Lincoln were possibly Nauo country, at least in the 1840s. I do not need to make a positive finding. I am not satisfied that the Barngarla country extended in any significant way south of Port Lincoln. It should be noted that in any event the applicant appeared to all but concede this point in closing submissions. (T1755-1756, lines 15-21)