Population Shifts
238 As we have remarked, there is a close relationship between the approach taken under the traditional laws and customs of the Western Desert Bloc to population shifts and the appellants' claim to possess native title rights and interests in relation to the claim area by virtue of their status as Nguraritja. Most of the appellants came to the claim area from country to the west, by reason of drought, the search for food or shelter or because of marriage. For those few who were born on or near the claim area (like Peter De Rose), at least some of their forebears came from the west earlier in the twentieth century.
239 Unless Aboriginal people coming to the claim area from the west could ultimately be recognised under Western Desert traditional laws and customs as Nguraritja for sites or tracks within that area, they could not succeed in a native title claim (at least not one founded on their status as Nguraritja). Similarly, their descendants could not succeed in such a claim in the absence of a traditional law or custom recognising descendants of "migrants" as Nguraritja for country on which, or near where, they were born. The significance of the approach taken by the traditional laws and customs of the Western Desert Bloc to population shifts, for present purposes, lies in the extent to which those laws and customs recognised "newcomers" or their descendants as Nguraritja for sites or tracks on the claim area.
240 It is not entirely clear whether the primary Judge regarded the significance of population shifts for the traditional laws and customs of the Western Desert Bloc as a separate question from that of the Nguraritja rules under those laws and customs. His Honour described the migratory movements of the Pitjantjatjara to the east as part of the "history and social structure of the Aboriginal people of the Western Desert Bloc" (at [372]). He also accepted, by reference to the language of Beaumont and von Doussa JJ in Ward (FC), that the appellants had established "a substantial degree of ancestral connection" with the original inhabitants, apparently because of the "process of incorporation that reflected the pattern of migratory movements" (at [897], [346]). His Honour did not explicitly find that the population shifts that occurred in the early to mid twentieth century were recognised by, or were in accordance with, the traditional laws and customs of the Western Desert Bloc, in the sense that newcomers could become Nguraritja for the claim area,depending on the circumstances.
241 In our view, however, a fair reading of the judgment as a whole suggests that the primary Judge did intend to make a finding to this effect. For example, his Honour found (at [102]) that the Nguraritja rules of which the appellants had given evidence were examples of evolutionary development of traditional laws and customs. This finding was expressly linked to the fact that the appellants' ancestors "[p]resumably…brought their traditional laws and customs with them". The analysis suggests that his Honour intended to find that the population shifts to and from the claim area had taken place in accordance with the traditional laws and customs of the Western Desert Bloc and that newcomers to the claim area, depending on the circumstances, could become Nguraritja for the claim area under those traditional laws and customs.
242 In our opinion, notwithstanding the respondents' submissions to the contrary, the evidence supports such a finding. Professor Maddock, whom the primary Judge regarded as well qualified to comment on anthropological matters, acknowledged in his report that the
"literature shows that migratory movements induced by a range of causes have been important in parts of Australia this [twentieth] century and also earlier. The region within which De Rose Hill is situated has evidently seen a good deal of this phenomenon". (Emphasis added.)
243 In his examination in chief, Professor Maddock was asked what causes there might have been for the permanent movement of Aboriginal people in the Western Desert area. He replied as follows:
"The causes of permanent movement, I suppose you would be looking for not so much, perhaps, what caused people to move in the first place but what might have caused them to stay in the new area once they had arrived and not to go back, and I would suggest that one of the factors would be the adoption to some extent of the new way of life which could not be had in the area from which people had originated, so that they might enter into pastoral employment and be receiving a flow of goods through that. They might also be settling in to whatever local Aboriginal society existed in the new area. Marriages, for example, might be contracted. There might be ritual relationships entered into so that people become at home, so to speak, in the area to which they've gone and perhaps not looking upon it simply as a temporary place, and in the longer term it may be that the nature of the Aboriginal traditions is such that by residence there you can obtain rights of some sort, if not perhaps for yourself then at least in your children's generation." (Emphasis added.)
244 Professor Maddock was then asked to explain a reference he had made to migratory movements potentially leading to changes of, or disputes over, ownership. He replied as follows:
"I suppose when I think of using the word 'ownership' in relation to Aborigines and land I would be considering several strands. One is, I suppose, simply the economic realities of it, of people living on land, foraging on it, obtaining their livelihood from the land and being able to do so in a way which is accepted or comes to be accepted as rightful so that they're not simply seen as trespassers or temporary visitors. The other is the kind of ritual side of ownership, where people through the dreaming stories have connections to places, where rituals are performed that refer to those dreaming figures and places, and it does seem common in Aboriginal Australia for that ritual side of life to be an important dimension when considering whether people have claims to land. So it's not simply a right to perform ceremonies, for example, but this can spill over into rights in relation to the places and tracks that are referred to in ceremonies. It's difficult, of course, to pinpoint anything neatly, so it's not a matter of the kind of documentary record which might exist of rights to land in a European property system, but the ownership, I think, has to be seen as flowing from the economic and religious realities of that society."
245 These answers suggest that population shifts in consequence of the "economic realities" of life in a harsh environment were not simply phenomena that post-dated European settlement. It is true, for example, that the primary Judge found that the severe drought of 1913 encouraged Aboriginal people to move east to make contact with pastoralists who, in turn, encouraged the men to work on their stations in return for a supply of goods or rations. But drought, famine and the search for marriage partners had led to population movements long before the coming of missions or stations. And when the population shifts occurred, they could lead to native title rights and interests being acquired under the traditional laws and customs of the Western Desert Bloc.
246 In his cross-examination, Professor Maddock was asked about a hypothetical case:
"And just to pursue his Honour's example a little further and consider the father of the child to whom his Honour drew attention, if that man remains there on country B and lives there with the people who are otherwise there, hunts there, gathers there, takes something of the essence of the country by reason of taking something of the sustenance of the country, grows into a knowledge of the sites and the stories associated with the sites, forms relationships with other people there, learns the relevant ceremony and inma, is it not the position that he, under the system of laws and customs would obtain rights and interests in that area of land, country B?---In effect, in the example you are putting, he is becoming naturalised in another country because he has effectively forsaken his own and has settled on a permanent basis somewhere else and started functioning. As time goes by he is functioning more and more as though he had always been a member of the group in country [B].
…
You say 'naturalised'. Would another way of saying that be 'incorporated into that group'?---That would be another way of putting it. I was thinking of naturalisation, which is incorporation, I suppose. We use those terms, don't we, of taking on citizenship of a country of which - originally an alien [?].
Yes?---So that's what I had in mind. That would be - in effect the person is becoming more and more absorbed into country [B] or the group in country [B].
HIS HONOUR: Are you using the word 'incorporated' just as a term of convenience or as---?---Yes, yes."
The above passages tend to reinforce the close link between population shifts in the traditional Aboriginal society of the Western Desert and the recognition under traditional laws and customs of native title rights and interests through the concept of Nguraritja. They also suggest, contrary to the submissions of the State, that pre- and post-sovereignty population shifts could be permanent and that traditional laws and customs would recognise that a person "incorporated" into another group could acquire native title rights and interests in relation to sites and tracks in the area occupied by that group.
247 In the 1939 article "Kinship in South Australia", Professor A P Elkin expressed the view that
"the Aborigines of western South Australia have been in a continuous state of migration for some decades; a movement which I believe was in progress before the coming of the white man. This explains the similarities of dialects, kinship systems and mythology over such a vast area, and also the difficulty of fixing definite tribal boundaries and names". (Emphasis added.)
248 In the article entitled "Tribal Migrations and Myths Centring on Ooldea, South Australia", Professor Berndt reported on information collected during an expedition in 1939 to Ooldea, which is on the fringes of the Western Desert country. Ooldea was a natural soak and centre for the distribution of articles traded down the north-western and north-eastern routes. According to Professor Berndt, the area had been a meeting place for different tribes for centuries, as well as the destination of Antikirinya people from the north in the early part of the twentieth century.
249 Professor Berndt made these additional observations:
"On an examination of the myths and legends of this region, one notices that in the majority the culture heroes travelled down from the west or north-west, creating physiographical features in the country they passed through, and instituting rites and ceremonies among the people with whom they dwelt.
The culture of the Western Desert peoples has spread fanwise from the north-west, driving back or incorporating the different elements of the more southern region. Tribes, such as the 'Ngardadjara, Mandjindja, 'Nangatadjara, Wonggail, Ngalea, Tjeraridjal, Murunitja, 'Mirning, Pitjandjara, 'Jangkundjara, and 'Anta'kirinja are all allied to the one Desert culture, whereas the Wirangu inhabit, as they have for many years now, the southern region. As the Pitjandjara and other north-western and western tribes have come eastwards, the 'Jangkundjara and 'Anta'kirinja have come southwards." (Emphasis added.)
He noted, too, that tribal migrations began long before European pressure in the north-west of Western Australia and suggested that a study of the myths of the Western Desert Aborigines would throw light on these movements and on cultural diffusion in the area.
250 According to Professor Berndt, the myths of the Western Desert are predominantly variations of the two cultural heroes, the Wati Kutjara (Wati, man; Kutjara, two). These were two ancestral men who lived in 'Tjukur times (the Dreamtime or ancestral past) and who came from the distant north-west. They were responsible for creating prominent physiographical features and also made the water holes on the route they travelled.
251 After describing the myths associated with the Wati Kutjara, Professor Berndt concluded as follows:
"The route of [cultural] diffusion was probably down through the coastal tribes from north-west Western Australia and then east into the Desert country and along other routes as has been suggested. But movements of tribes occurred before European contact and settlement, and the affinity of culture between the Western Desert peoples and those of the north-west is no new knowledge. It is also deeply rooted historically in their beliefs. In the mythology, details of utmost importance are reflected: it often commemorates important tribal events connected with the far distant ancestral times. Further, the myths tell of the wanderings of ancestral beings, giving the detailed routes along which the latter travelled. The culture hero is nearly always believed to have come from the west, and as several informants added to their tale, 'from far up west - where the pearl-shell comes from', that is, toward the north-west of Western Australia.
Trade is an important factor in the diffusion of culture. Along the water-hole routes of the Great Victoria Desert groups of natives from far distant regions have travelled to trade pearl-shell for objects and materials used for religious and secular purposes. In European times there is the attraction exercised by the mission station, with the white man and his goods, or the occupation of tribal territory by these same people that moves the aborigines from his ancestral tribal country. Still, it is only under extreme provocation, such as the necessity for water and food, that the native will move from a country he loves - a country, moreover, that is associated with his ancestors….
Even if the natives do move from their tribal country, away from the totemic centres of their fathers, they always expect to return before they die. In addition, as in the case of the 'Anta'kirinja people at Ooldea, the myths associated with their totemic religious life may be extended to include new physiographical features, thus having the effect of sacralizing certain places for totemic increase and legalizing the carrying on of the ritual and ceremonial life important to the integration of the aboriginal society."
252 This analysis points to the dangers of characterising population shifts by Aboriginal people by reference to Eurocentric concepts of migration movements. Professor Berndt's work suggests that the "diffusion of culture" as the result of population shifts is deeply rooted in the traditional laws and customs of the Western Desert peoples. His analysis also indicates that the myths of Western Desert society reflect population shifts in ancestral times and that the incorporation of elements of the culture of different regions into the mythology of the Western Desert Bloc is a phenomenon that long pre-dates European settlement.
253 In his 1959 article, "The Concept of 'the Tribe' in the Western Desert of Australia', Professor Berndt expressed agreement with Professor Elkins' contention that tribal boundaries in western South Australia counted for little. He also agreed that
"these [local] groups are not 'tribes,' that there are no strict boundaries, that movements were relatively frequent, and that what we are faced with is, rather, a cultural and social bloc".
254 Mr Vachon in his oral evidence recognised that he had used the word "migration" in a published 1979 report, but pointed out that the movements of Aboriginal people had occurred in a variety of directions. In re-examination he said that he had reassessed the terminology used in his report:
"…I use the word 'migration' on page 470 - seen from one time frame it may look like migration in a single direction, perhaps even permanent relocation, but in another time frame it might be movement - it might be regarded as movement - a shift in orientation perhaps and occupation and then a shift in another direction later on. The other thing though that I came to appreciate, I suppose, more in looking at other cases in the Western Desert in regards to people moving out of the desert to various fringe camps, is that the whole idea of migration needed to be contextualised. These people were nomadic and they ranged over quite wide areas. To a European it might seem like it's migration but, to an indigenous person, it might just seem movement within an expected range."
255 In our view, contrary to the respondents' submissions, the evidence of Aboriginal witnesses provides additional support for the finding that population shifts to and from the vicinity of the claim area took place in accordance with the traditional laws and customs of the Western Desert Bloc. Peter De Rose, for example, gave evidence of his belief that Jimmy Piti Piti, the father of Snowy De Rose (Peter's stepfather) had moved east perhaps as long as 100 years earlier. The primary Judge observed (at [582]) that this
"could quite possibly be a pre-contact migration - a migration with no consideration for white man's work or white man's rations but, rather, a migration within a traditional environment and movement that was effected for social or cultural reasons".
256 Peter De Rose also gave evidence, apparently unchallenged, that a number of his "cousins or brothers" had been Pitjantjatjara men who had came from the west to the area including De Rose Hill and Granite Downs and married Yankunytjatjara women. They had come for food "because it was a hard season out there" and had brought their sisters, as well as parents. The anthropological material suggests that this kind of population shift was by no means unique to the twentieth century. Peter De Rose's evidence is also consistent with the newcomers being "incorporated" (to use Professor Maddock's word) into the group, or one of the groups, then occupying the claim area or its environs.
257 On the primary Judge's findings, Peter Tjutatja (a very old man when he gave evidence) travelled to Kantja from the west with his father and others when he was about ten or twelve years old. Given that it appears that he was born in about 1912, he had arrived near the claim area at some time between 1922 and 1924. At that time, according to Peter Tjutatja there were "no whitefellas" at Kantja, but there were many Anangu.
258 Peter Tjutatja claimed to be Nguraritja for a number of locations, not all of which were at or near De Rose Hill Station. He said he acquired that status because he had been taught the Tjukurpa by his uncle, Tjaapan Tjaapan, and because he had had a very long association with the various sites. The primary Judge considered Peter Tjututja's claim to be Nguraritja for De Rose Hill to be "suspect", apparently because in cross-examination he did not identify his country clearly. But his Honour seems to have accepted what was implicit in Peter Tjutatja's evidence, namely that a person, such as a Pitjantjatjara man or boy, coming from the west to the vicinity of the claim area before European settlement, could acquire the status of Nguraritja under traditional laws and customs in relation to sites or tracks in that area by virtue of knowledge of the Tjukurpa and long association with the sites or tracks.
259 In Yorta Yorta (HC), the joint judgment endorsed (at [59]) an observation by the trial Judge in that case that the
"difficulties inherent in proving facts in relation to a time when for the most part the only record of events is oral tradition passed down from one generation to another, cannot be overstated".
For obvious reasons, the Aboriginal witnesses could not give direct evidence of the way in which pre-sovereignty population shifts were viewed by the traditional laws and customs of the Western Desert Bloc. The primary Judge was therefore forced to rely on inferences from necessarily incomplete evidence. Bearing that in mind, in our view, the evidence was sufficient to support the inference he drew, namely that population shifts to and from the claim area that occurred in the twentieth century were consistent with and recognised by the traditional laws and customs of the Western Desert Bloc, in the sense that, under those laws and customs, the newcomers could acquire the status of Nguraritja in relation to sites or tracks on or near the claim area.