The Banjima determination and the exclusion of Ijiyangu
25 In evidence that was not challenged, Steven Dhu explained that, prior to the Banjima (No 2) decision, there was a proposal that in order to reflect the two underlying claims in Banjima (MIB and IB), two different trust structures should be created. Steven Dhu deposed:
Graham O'Dell, a lawyer at YMAC, told me it was proposed that all the descendants of Ijiyangu (Daisy) would be members of the Number 2 Trust. I disagreed with this proposal. At that stage I thought that all members of my family would get native title and that once this happened the MIB and IBN claim groups would be reflected in the trust structure. I maintained that my father, Brendan and I were connected to the MIB claim area through Ijiyangu (Daisy). This all went out the window when the Banjima decision came down.
26 As I understood Steven Dhu's written and oral evidence, the underlying basis for his disagreement, and for the applicants initially joining the MIB claim, and then objecting to their proposed membership of the B2 trust, all stemmed from their understanding of where their country was located within the claim areas (that is, the country to which Ijiyangu was connected). In his first affidavit (at [34]) Steven Dhu identified this country as being the "Fortescue valley area and includes Karijini national park and those parts of Mulga Downs and Hooley stations in the Banjima determination area". This area was covered by the MIB claim, which is why (he deposed) he and his brother and father joined that claim. He deposed:
When we joined the MIB claim I did not know whether Ijiyangu (Daisy) was included as an apical ancestor for the MIB claim group description. I later learned that she was not and that she was included as an apical ancestor for the IBN claim group description. Ijiyangu's exclusion from the Banjima Determination created an obstacle for her descendants who identified as Banjima.
27 In Banjima (No 2) Ijiyangu is referred to as "Daisy Yijiyangu". She was put forward by the claimants as an apical ancestor. Ijiyangu was not the only apical ancestor about whom there was debate in Banjima (No 2). However, Barker J acknowledged the challenges for his Honour's fact finding at [572]:
Daisy Yijiyangu: Daisy produces a much more difficult case than either Sam Coffin or Whitehead, as there is not unanimity among the Aboriginal witnesses that she was Banjima, the archival external and independent data suggests she was not Banjima, and the anthropologists express doubt as to her Banjima identity.
28 At [573], Barker J found:
Not all of the Aboriginal evidence is supportive of the claim that Daisy was Banjima, although there is some powerful support within sections of the claim group for accepting that Daisy was a Banjima woman. Charles Smith, for example, gave evidence that his mother had told him about old Banjima people that she knew when she was young. He said, "[m]y mum told me that Yijiyangu (Daisy) was a Banjima woman from Mulga Downs". It is important to note in this regard that Mr Smith's mother, Mrs A Smith, is the oldest claimant in the Banjima native title claim group and has a deep genealogical knowledge. Similarly, Joyce Injie, an 84 year old Innawonga woman gave evidence that she knew Billy Swan (Daisy's son) and that he was a Banjima man.
29 Consistently with what his Honour says in this paragraph, elsewhere in his Honour's reasons he places considerable weight on the evidence of Mrs A Smith and Joyce Injie. At [574]-[575], Barker J describes the evidence of John Todd, whom he describes as a direct descendant of Ijiyangu and whose grandmother he identifies as Susie, the daughter of Ijiyangu. This would appear to be the same "Susie" from whom the applicants are descended and who in the evidence in this proceeding was identified as Susan Swan. However there was no evidence before the Court in this proceeding about the applicants' connection to John Todd.
30 In this context, Barker J referred to the applicants' grandfather, at [576]:
Another old person that John Todd spent time with as a child and as a young adult was Ned Dhu. Ned Dhu was the oldest child of Susie Dhu (nee Swan) and he was born and worked on Mulga Downs Station. Mr Todd gave evidence that Uncle Ned had a lot of knowledge of Banjima country. Uncle Ned learnt a lot from Ivy, another of Daisy's children, when he was living at Derschaw's Outcamp on Mulga Downs Station. Ned passed on knowledge about Banjima country to Mr Todd. He camped in the riverbeds on Mulga Downs and Cowra with Ned.
31 The "Ivy" in this passage would appear to be Ivy Swan, the grandmother of Peter Derschaw and the sister of Susan Swan: see [24] above.
32 There was also expert evidence about Ijiyangu before Barker J, to which his Honour refers. This is part of the anthropological report of Dr Palmer, recorded at [578]:
Dr Palmer noted that Daisy has many descendants that include members of descendants of the Swan, Dhu and Derschaw families. He received, he stated at [791], some "limited information" about Daisy from the Dhu and Derschaw families. He noted that some thought she was generally associated with Mulga Downs and that her son, Billy, was an important ritual leader there. Bill Dhu told him that he could remember his mother's mother, Daisy, from when he was a young boy and that she spoke the Banjima language and used to travel from Mulga Downs to Roy Hill Station. She died at Roy Hill during one of those visits. He was also told that Daisy's mother may have identified as Nyiyabarli, but details were not known by those with whom he spoke.
33 At [579], Barker J recorded this statement from Dr Palmer, which is of some significance in the present context:
Dr Palmer noted that members of the Dhu and Derschaw families were "adamant" as to the Banjima identity of Daisy, although others amongst the claim group had questioned this, stating that she may have been Nyiyabarli.
(Emphasis added.)
34 From [580] onwards, Barker J traces what appears to have been something of a development in the opinions of Dr Palmer, in part influenced by the views of other anthropologists, and then by the views of one particular informant, a woman identified as Bonny Tucker. The three anthropologists appeared to move from a position where they considered Ijiyangu's mother was likely Nyiyaparli, and her father Banjima, to a position where they agreed there was "no certainty" about this matter. At [588], Barker J notes the opinions expressed by the three experts (Dr Palmer, Mr Robinson and Dr Vachon) in a joint experts' report, where they speak of Ijiyangu's "Banjima identity" which, as the following passages in Barker J's reasons demonstrate, encompassed more than descent. The experts referred to the concept of the "jural public", being, in Barker J's words, Aboriginal people "who were generally in the area, not necessarily Banjima but able to speak with some authority". Barker J noted the experts placed differing weight on the opinions of such people about Ijiyangu's identity.
35 At [593]-[594], Barker J set out the competing views:
Dr Palmer said that the genealogical connection of a person to an area on its own is not sufficient in a customary system, in his view, for people to be recognised and actually having rights in country. There might be potential rights that could be realised. But in a cognatic system there is an exercise of choice which has to be made. Otherwise the system would not function as a normative system.
Mr Robinson agreed that genealogy is important and indeed fundamental. He added that it is fundamental in the sense that Aboriginal societies are based on kinship and "people's interconnectedness through kinship". These are societies where status is ascribed: "You become a member of the society as a result of who you're descended from, not how you achieve it. Your achievements during life might add or take away some of those rights or restrict them in some ways, but the very fact of descent … fundamentally gives an individual certain rights which cannot be taken away." So he placed more emphasis on genealogy than Dr Palmer would.
36 At [595]-[601], Barker J expressed his conclusions on the question:
For the Court it is a very difficult thing to have to decide at this distance of time from when Daisy was born and lived whether Daisy was a member of the Banjima language group, that is to say had Banjima ancestry. It is understandable that, as a woman who apparently lived on Mulga Downs station for many years, which I accept (as noted above) is part of traditional Banjima country, and may have spoken the Banjima language, she may have been considered by some, if not many, as a Banjima woman for general cultural purposes. Her children and their children may well have grown up mixing with Banjima people and considering Daisy's identity was Banjima.
If one looks for independent ethnographic data to show that Daisy had any Banjima ancestry, however, the evidence is lacking. The data provided by Dr Vachon to Dr Palmer strongly suggests Daisy's father was not Puurna, a Banjima man, as some in the group had previously thought. Rather, he was married to a "sister" of Daisy and was not the father to any of Daisy's siblings. Neither of the anthropologists have doubted the veracity of this data and the Court also accepts it is proper to regard it as reliable.
There are some circumstances in which the lack of an independent ethnographic record supporting the inclusion of a claimed apical ancestor amongst the ancestors who may be taken to have possessed native title rights in the claim area at sovereignty may be of relatively little moment, and the evidence of claimants themselves concerning the reputation of a claimed apical ancestor will be determinative and lead to a finding that the claimed apical ancestor was indeed an ancestor for native title purposes - as indeed I have found above in the cases of Sam Coffin and Whitehead. In this particular instance, however, there is no clear agreement amongst members of the claim group themselves as to Daisy's identity. There are those who emphasise Daisy's Nyiyabarli ancestry and those who say she was Banjima.
The Court accepts that, for native title purposes, it is not enough that a community or segments of a community of Aboriginal people acknowledge a person as part of their group if that person does not also have a relevant ancestry within that group by their law and custom, as Mr Robinson and Dr Palmer explained in their evidence. It is not enough, if a person's ancestry is in question, for example, merely to show that a person has lived for many years in the relevant claim area and been involved in the relevant community's cultural activities, if there is some real doubt about their ancestral connection or traditional incorporation within that community. This is one of the difficult issues governing native title claim group membership.
Based on the evidence as a whole, the Court is unable to conclude, on the balance of probabilities, that Daisy had any relevant ancestral connection to the Banjima people. The tipping point in the weighing process is the serious doubt conveyed by the data provided by Dr Vachon to Dr Palmer, which has also plainly influenced the serious uncertainties about her ancestry expressed by the anthropologists.
What can be said, as indeed the anthropologists have concluded, is that there is a "possibility" that Daisy had Banjima connections. However, in the light of all the evidence, that possibility does not enable the Court to conclude, on the balance of probabilities, that she had a Banjima ancestry.
The Court must, therefore, conclude, for the purposes of the NTA and this proceeding, that Daisy Yijiyangu is not an apical ancestor as claimed in the application.
37 What should be emphasised from these passages is that the matter which troubled Barker J the most, and led to the finding his Honour made, was the "ancestry" of Ijiyangu. That is, there was insufficient evidence about the fact of her descent from (relevantly) a Banjima man. It would appear that both the anthropologists and the Court placed significant weight on what had been said by Bonny Tucker. I return to Mrs Tucker's accounts below, because they were raised by the applicants.
38 The applicants have each deposed to the effect the Court's decision had on them. Mr Steven Dhu stated:
I became aware in August 2013 of Barker J's finding that Ijiyangu (Daisy) was not a Banjima person with the result that her descendants were not Banjima native title holders. I was very surprised by this finding. Based on what I had been told during my involvement in native title I believed she was a Banjima person.
The descendants of Ijiyangu (Daisy) disputed Barker J's finding that she was not a Banjima person. My father, Brendan and I (and other descendants of Ijiyangu (Daisy) that I am aware of) thought that YMAC had not done its job properly. We were also concerned about our status under native title agreements and in relation to existing trusts through which benefits were distributed.
39 And Mr Brendan Dhu stated:
In 2013 I learned that the Federal Court did not accept that Ijiyangu (Daisy) was a Banjima Apical. This left me without the identity as a Pilbara common law holder that I had hoped for from that case.
40 Steven Dhu deposed there was no consultation with him, or his brother, about Ijiyangu, and they were not asked for any information they might have supplied about her ancestry. In a passage which was not challenged in cross-examination, Steven Dhu deposed:
Sometime around 2009 I had a conversation in Roebourne with Mr Ibrahim Kakay who I knew then to be a lawyer working for YMAC. I was working for the Ngarluma Aboriginal Corporation at the time. I was walking out of the Ngarluma office when I bumped into him. Mr Kakay told me that Ijiyangu (Daisy) had been put forward as a Banjima apical ancestor in support of the combined Banjima claim that YMAC were running in the Federal Court. He told me that he was involved in preparing evidence in support of that case and would make contact with me again to discuss my knowledge of Ijiyangu (Daisy). He asked me for the address of my father so he could take a statement from him. That was the last that I heard form Mr Kakay or YMAC about the trial. Neither I, nor my father, nor my brother Brendan nor any other immediate members of my family were called as witnesses to give evidence about Ijiyangu (Daisy) at the trial. I am not aware that any anthropologist came and spoke with us either. It was a passing conversation the significance of which I did not appreciate until Barker J handed his decision down in the Banjima native title claims.
(Typographical errors in original.)
41 The Banjima Native Title Aboriginal Corporation RNTBC (Banjima PBC) became the determined prescribed body corporate for the Banjima determination.
42 The Banjima determination defined the Banjima People in the following way:
The Banjima People are those Aboriginal persons who:
(a) are descendants of one or more of the following apical ancestors:
(i) Bob Tucker (Wirilimura);
(ii) Gawi;
(iii) Yinini (Arju);
(iv) Sam Coffin;
(v) George Marndu;
(vi) Whitehead;
(vii) Yidingganin;
(viii) Maggie (Nyukayi);
(ix) Yandikuji; and
(b) recognise themselves as a Banjima person, and are recognised by others as a Banjima person.