Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western... [2025] FCA 1641 | Case summary

B. BACKGROUND AND PROCEDURAL HISTORY

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western... [2025] FCA 1641 | Case summary | Zoe

[99]

These reasons concern two native title determination applications made under s 61 of the Native Title Act 1993 (Cth) (NTA) which cover, in part, the same area.
The first of the applications was filed on 22 December 2017 and given the proceeding number WAD 647 of 2017. It is known as the Marlinyu Ghoorlie claim. The Marlinyu Ghoorlie applicant claims native title rights and interests in the claim area on behalf of the Karlamaya (Kalamaia) Kapurn (Gubrun, Kaparn) people, also known as Karlaku (Kalaako, Kalarku) people. The significance of those names will be discussed in the course of these reasons. The first-mentioned name uses the preferred spelling adopted by the Marlinyu Ghoorlie applicant, with alternative spellings in parentheses. For simplicity, these reasons adopt the preferred spelling used by the Marlinyu Ghoorlie applicant (save where quoting directly from the evidence given by a witness or from historical sources), and will refer to the Marlinyu Ghoorlie claim group as the 'Karlamaya Kapurn people'. For present purposes, it is sufficient to note that: the name Karlamaya is the name of an Aboriginal language used in the Marlinyu Ghoorlie claim area by Aboriginal people occupying the area at the time of European settlement; Karlaku is likely an alternative word for Karlamaya; and the name Kapurn is the word for 'man' or 'person' in the Karlamaya language and was used to refer to the Aboriginal people occupying the land and waters in or around the Marlinyu Ghoorlie claim area at the time of European settlement. In each of the words Karlamaya, Karlaku and Kapurn, the letter 'k' is pronounced as a 'g'.
The words 'Marlinyu Ghoorlie' are not a language or social name. The words refer to two species of tree that are characteristic of the landscape of the Marlinyu Ghoorlie claim area in the Karlamaya language. The word marlinyu is used to refer to salmon gums (eucalypt), and the word ghoorlie (also spelt kurli) refers to a sheoak tree (casuarina), both of which are common in the claim area.
The land and waters the subject of the Marlinyu Ghoorlie claim comprise an area in the Western Goldfields region of Western Australia that is approximately 89,797 square kilometres in size. The eastern part of the claim area includes the area surrounding Kalgoorlie and Coolgardie, extending south to Widgiemooltha and north to a point south of Comet Vale. The western part of the claim area extends past Southern Cross and Mukinbudin. The town of Merredin is beyond the south-western border of the claim area. The claim area extends north past Mount Jackson. Originally, the claim area extended west past Kalannie. However, on 21 June 2023, the claim area was amended to exclude an area in the north-west of the claim area (including the area around Kalannie), as part of a settlement with the Badimia people.
A significant location for the Karlamaya Kapurn people is Mount Burges, which is located to the north of Coolgardie. It is known as Muluuri to Karlamaya Kapurn people. Throughout the evidence, the location is frequently spelled Mount Burgess, even though the name that appears on maps is Mount Burges, and a nearby pastoral station is named Mount Burges Station. The confusion in spelling appears to have arisen because certain facilities and enterprises located in the area have adopted the spelling Mount Burgess (for example, the Mount Burgess Station Road and the Mount Burgess Gold Mine). Curiously, the confusion in spelling also appears to be historic, because the early European settler, David McDonald, and the ethnographer Daisy Bates, also use the spelling 'Mt Burgess'. Despite the use of different spelling, there was no confusion in the evidence as to the location being described. As the European name that appears on maps is Mount Burges, these reasons adopt that spelling (even where a witness used the alternative spelling Mount Burgess).
The second of the applications was filed on 18 February 2022 and given the proceeding number WAD 38 of 2022. It is known as the Karratjibbin claim. The significance of the name 'Karratjibbin' will be discussed later in these reasons. For present purposes, it is sufficient to note that the Karratjibbin applicant contends that the name 'Karratjibbin' is derived from the place name of one of the main camps of the Karratjibbin people located between Southern Cross and Mount Jackson. The Karratjibbin applicant claims native title rights and interests in the Karratjibbin claim area on behalf of the Karratjibbin people. The application was subsequently amended on 2 September 2022.
When it was first filed, the Karratjibbin claim concerned an area of more than 49,600 square kilometres and was wholly within the Marlinyu Ghoorlie claim area, comprising a smaller part of the Marlinyu Ghoorlie claim area. It shared the south-western boundary, and part of the north-western boundary, of the Marlinyu Ghoorlie claim area, and extended east past Southern Cross to Boorabin, and to the north included Mount Jackson. However, when the Marlinyu Ghoorlie claim area was amended on 21 June 2023 (to exclude an area in the north-western part of the claim area), the same amendment was not made to the Karratjibbin claim area. As a result, the Karratjibbin claim area is no longer wholly within the Marlinyu Ghoorlie claim area.
A map showing the Marlinyu Ghoorlie and Karratjibbin claim areas is attached to these reasons as Annexure A.
As required by s 67 of the NTA, the applications have been heard together in so far as the Karratjibbin claim area overlaps the Marlinyu Ghoorlie claim area.
A joint trial of the Marlinyu Ghoorlie claim and the Karratjibbin claim was conducted in respect of the area covered by the Marlinyu Ghoorlie claim (trial area) and in respect of separate questions which can be stated as follows:

[101]

The trial occurred in a number of phases between February 2023 and March 2024 inclusive. In the period 20-23 February 2023, preservation evidence was given in Kalgoorlie. In the period 2-19 October 2023, further lay evidence was given in Kalgoorlie and at locations throughout the trial area. In the period 11-15 December 2023, expert evidence was given in Perth. In the period 18-20 March 2024, closing submissions were heard in Perth.
At the trial, the Marlinyu Ghoorlie applicant pursued its claim for native title in respect of the trial area. It contended that the Marlinyu Ghoorlie claim group, and not the Karratjibbin claim group, held native title rights and interests in the whole of the trial area.
During the trial, the Karratjibbin applicant maintained its claim for native title in respect of that part of the trial area that was subject to the Karratjibbin claim. However, its position with respect to the Marlinyu Ghoorlie applicant altered during the trial. In closing submissions, the Karratjibbin applicant agreed that the Marlinyu Ghoorlie claim group held native title rights and interests in the trial area that was not the subject of the Karratjibbin claim.
Three respondents, or groups of respondents, participated in the trial of the separate questions: the State of Western Australia (State); members of the Cooper family (comprising Gary Cooper, Maria Bandry, Norman Cooper Jnr and Victor Cooper (Cooper respondents)); and Elizabeth Sambo.
Prior to the trial, the State had indicated its preparedness to resolve the Marlinyu Ghoorlie claim by agreement under s 87 of the NTA. The State informed the Court that the Marlinyu Ghoorlie applicant and the State were well advanced in reaching an agreement of that kind. However, the filing of the Karratjibbin claim and the opposition of other respondents to the Marlinyu Ghoorlie claim meant that the State and the Marlinyu Ghoorlie applicant could not resolve the Marlinyu Ghoorlie claim by agreement. At trial, the State put the parties to proof of their respective claims. In its written closing submissions at trial, the State stated its position on the claims and contentions advanced by the applicants and the Cooper respondents as follows:

[103]

The Cooper respondents became respondents to the Marlinyu Ghoorlie claim to defensively assert native title rights and interests in the eastern portion of the trial area, which encompasses Bullabulling, Coolgardie, Kalgoorlie and Kanowna. The Cooper respondents do not seek a positive determination of their asserted native title rights and interests in that area, recognising that to seek such a determination they would be required to make an application of the kind listed in s 61(1) of the NTA. As respondents, they oppose the Marlinyu Ghoorlie claim and contend that the Marlinyu Ghoorlie claim group do not hold native title rights and interests in that area. In their written closing submissions at trial, the Cooper respondents submitted that the trial area is part of an 'interstitial' (or transitional) zone between the Noongar regional society (in the west) and the Western Desert regional society (in the east and north-east) and that, in the eastern portion of the interstitial zone (being the eastern portion of the trial area), Western Desert law and custom apply and have applied since the assertion of British sovereignty.
Elizabeth Sambo also became a respondent to the Marlinyu Ghoorlie claim to oppose certain aspects of the claim. Although Ms Sambo is recognised by the Marlinyu Ghoorlie applicant as a member of the claim group, prior to the trial she contested the extent and boundaries of the trial area and disputed the composition of the claim group. However, by the time of the completion of the trial, Ms Sambo's position had altered. She no longer opposed the Marlinyu Ghoorlie claim. In her written closing submissions, Ms Sambo articulated a basis upon which she asserts a stronger affinity with and knowledge of certain areas within the trial area, but she stated expressly that she accepted that native title rights and interests in the whole of the trial area were held by the Marlinyu Ghoorlie claim group as a whole.
Many of the names of Aboriginal societies or languages referred to in these reasons have alternative spellings. I have already referred to the alternative spellings of the names Karlamaya (Kalamaia), Kapurn (Gubrun, Kaparn) and Karlaku (Kalaako, Kalarku). Alternative spellings for the name Noongar include Nyungar and Nyoongah. An alternative spelling for the name Badimia is Badimaya. Alternative spellings for the name Wongai include Wongi and Wangkayi. An alternative spelling for the name Mirning is Mirniny. For reasons of simplicity and consistency, these reasons adopt the spellings Noongar, Badimia, Wongai and Mirning, unless quoting direct speech.
In these reasons, it has been necessary to refer to Aboriginal people who are deceased. In many, if not most, Aboriginal communities across Australia, it is customary to avoid using the first names of deceased persons, at least for a period of time. However, because these reasons refer to many people who have the same family name, I have considered it necessary to refer to deceased persons by both their first and second names to avoid any ambiguity. No disrespect is intended by doing so. It is also appropriate to explain at the outset that, in those sections of the reasons that contain a discussion of the evidence given by a witness, I have generally used the witness's full name (first and family name), again to avoid any ambiguity. That is because many witnesses have the same family name. Where a father and son share the same name, the suffix 'Senior' (Snr) or 'Junior' (Jnr) has been used, consistently with the usage adopted by the parties. Where possible, I have ameliorated the excessive formality of repeatedly using a witness's first and family name by, on occasions, using their first name only, again consistently with the usage adopted by the parties. Again, no disrespect is intended by the use of first names.
The preparation of these reasons has taken a considerable period of time. This was due to the wide range of issues that were contested in the proceedings and the volume and complexity of the evidence adduced to address all contested issues. I note, though, that my findings with respect to the credit of all witnesses who gave evidence were prepared during or shortly after the trial of the proceeding.

[105]

In and around 1998, numerous native title determination applications were filed in areas that included large parts of the trial area, including the applications known by the following names: Gubrun (WAD 2 of 1998); Central West Goldfields (WAD 65 of 1998); Kalaako (WAD 128 of 1998); Kabul (WAD 6196 of 1998); Kalamaia Kabu(d)n (WAD 6216 of 1998); Dimer (WAD 6225 of 1998); and Widji (WAD 6243 of 1998). None of those applications proceeded to trial.
In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1 (Harrington-Smith (No 9)), Lindgren J conducted a lengthy trial of a native title determination application referred to as the Wongatha claim and seven overlapping applications. The southern boundary of the Wongatha claim area was some 85 kilometres north of Kalgoorlie (Harrington-Smith (No 9) at [5]). When it was originally filed, the Wongatha claim partly overlapped the Gubrun claim and the Kalamaia Kabu(d)n claim. However, the Wongatha claim was amended to excise the areas of overlap (Harrington-Smith (No 9) at [4]), with the result that neither the Gubrun nor the Kalamaia Kabu(d)n claims were heard with the Wongatha claim.
The Central West Goldfields claim was not accepted for registration under s 190A of the NTA. In Sambo v State of Western Australia [2009] FCA 940, McKerracher J noted disagreements between members of the applicant, but decided not to dismiss the application under s 190F(6) at that time. Subsequently, in Sambo v State of Western Australia (No 2) [2010] FCA 927, McKerracher J dismissed the application because a deadlock between members of the applicant had not been resolved. His Honour's reasons for judgment reveal that the dispute in the present proceeding also afflicted the earlier Central West Goldfields claim. His Honour recorded (at [26]) evidence given by Sue Wyatt that the Cooper family sought the dismissal of the Central West Goldfields claim to allow a new native title claim to be lodged "to accommodate the true customary and spiritual boundaries of our traditional Aboriginal ancestry and heritage in accordance with out ethical [sic] ancestor, Anida Nala Bilbear of the original tribe of Kalgoorlie, the Maduwongga people". His Honour also recorded (at [28]) a submission of Mark Champion that the application wrongly excluded certain branches of the Champion family from the claim group, including his father Brian Champion Snr.
The Ballardong claim (WAD 6181 of 1998) was filed in 1998 on behalf of the Ballardong people who are part of the Noongar nation. One of the named applicants was Reginald (Reg) Yarran Snr who is the father of one of the Karratjibbin applicants, Reginald (Reg) Yarran Jnr. The Ballardong claim covered an area to the south-west of the trial area but, in its original form, included a large part of the Karratjibbin claim area (and, therefore, that part of the Marlinyu Ghoorlie claim area that was overlapped by the Karratjibbin claim), including, for example, Mount Jackson, Southern Cross, Marvel Loch, Westonia and Kalannie. The Ballardong claim was amended in 2008 to withdraw the boundary of the claim area to what is now the south-west boundary of the trial area. The Ballardong claim was subsequently resolved as part of the South West Native Title Settlement. By that settlement, the constituent groups of the Noongar nation (including the Ballardong people) resolved their respective native title claims in the south-west of Western Australia in exchange for a package of benefits. The settlement is constituted by six indigenous land use agreements (ILUAs) and was given legislative recognition in the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA): see Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 (Dimer (No 1)) at [51]. The Ballardong ILUA was entered into in 2016. One of the representatives of the Ballardong people who signed the ILUA was Reg Yarran Jnr.
The Kaparn claim (WAD 420 of 2013) was filed on 11 November 2013. Elizabeth Sambo was a named applicant. However, it was refused registration under the NTA. On 26 August 2015, Barker J made an order under s 190F(6) of the NTA dismissing the claim: Sambo v State of Western Australia [2015] FCA 954.

[106]

The Maduwongga claim (WAD 186 of 2017) was filed on 21 April 2017, shortly prior to the filing of the Marlinyu Ghoorlie claim. The Maduwongga claim was made on behalf of a group of people called the Maduwongga, who were said to comprise a distinct land-holding group descended from one apical ancestor known as Kitty Bluegum (referred to in the judgment by her initials, 'KB'). The two named applicants for the Maduwongga claim were Marjorie Strickland and her sister Anne Nudding. The Maduwongga claim area was situated in the Goldfields region of Western Australia, stretching from Coolgardie in the south-west to the Edjudina Range in the north-east. Relevantly, the Maduwongga claim area overlapped in the south-west with the trial area, and in the north-east with a claim seeking a determination of native title rights and interests on behalf of the Nyalpa Pirniku claim group (WAD 91 of 2019).
In late 2020 and early 2021, the Court heard evidence and submissions on a separate question, which was intended to determine a dispute between the Maduwongga applicant and the Nyalpa Pirniku respondent as to who held native title rights and interests in relation to the overlap area between the Maduwongga claim and the Nyalpa Pirniku claim. That area of overlap was to the north-east, and outside, of the trial area. By orders made on 27 March 2023, the Court determined that the apical ancestor of the Maduwongga applicant, Kitty Bluegum, held rights and interests in the relevant overlap area under the normative system of traditional laws and customs of the Western Desert, but not under the normative system of a distinct land-holding group of which Kitty Bluegum's descendants are the only identifiable surviving members: Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270 (Strickland). As a result of that decision, the Maduwongga claim was dismissed by orders of the Court made on 28 April 2023 on the basis that there was no separate land-holding group known as Maduwongga.
On 18 October 2023, Marjorie Strickland's daughter, Jacqueline Spurling, applied to be joined as a respondent to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA. On the application, Ms Spurling asserted that she holds native title rights and interests in part of the trial area under Western Desert laws and customs (which marked a significant change in the position taken by Ms Spurling's family in the Maduwongga claim, as summarised in the preceding paragraph). On 16 November 2023, Ms Spurling's application was dismissed for the reasons given in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 5) [2023] FCA 1417.
It is noted for completeness that, on 31 October 2023, the Court made a consent determination of native title in respect of the Nyalpa Pirniku claim: Lewis on behalf of the Nyalpa Pirniku Native Title Claim Group v State of Western Australia [2023] FCA 1294 (Lewis). In that determination, the Court acknowledged the finding in Strickland that Kitty Bluegum, the paternal grandmother of the Maduwongga applicants, held rights and interests in the overlapping claim area of the Maduwongga claim and the Nyalpa Pirniku claim under the traditional laws and customs of the Western Desert and not as part of a Maduwongga society (Lewis at [13]). As a result of the findings made in Strickland, the description of the native title holders in the Nyalpa Pirniku claim was amended to include the descendants of Kitty Bluegum (Lewis at [16]). As noted above, the Nyalpa Pirniku determination area is to the north-east of, and does not overlap, the trial area.

[112]

The Karratjibbin native title application was filed on 18 February 2022 and was subsequently amended on 2 September 2022. As at the date of the amended application, the named applicants were Jason Colbung, Reginald Yarran (Jnr), Norman Pickett, Murray Yarran and Nancy Henry.
In the amended application dated 2 September 2022, the Karratjibbin claim group was described as all those persons who are the biological descendants of Karratjibbin traditional owners and apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby, or who have been adopted by one or more of those biological descendants in accordance with the traditional laws and customs of the Karratjibbin people. However, at the commencement of the trial, the Karratjibbin applicant filed an amended concise statement dated 2 October 2023 which acknowledged that the ancestors Polly and Eva are affinal ancestors for the members of the current Karratjibbin claim group insomuch as Polly and Eva are not known to have any current living descendants. The Karratjibbin applicant also acknowledged that Nimmo was the son of apical ancestor Toby and is not strictly an apical ancestor (as all descendants of Nimmo are also descendants of Toby). Accordingly, the Karratjibbin applicant redefined the Karratjibbin claim group as the descendants (biological or by adoption) of apical ancestors Billy Yambinut and Toby.
At the conclusion of the trial, the Karratjibbin applicant conceded that they had not adduced any positive evidence establishing that Toby was an apical ancestor for the purposes of the claim. Accordingly, the Karratjibbin applicant proceeded on the basis that the members of the Karratjibbin claim group are the descendants (biological or by adoption) of Billy Yambinut. A difficulty for the Karratjibbin applicant is that each of the lay witnesses who gave evidence for the Karratjibbin applicant claimed to be Karratjibbin through descent from Nimmo (who was also known as Toby Williams) and not Billy Yambinut.
It can be seen that the Karratjibbin claim group is entirely separate from the Marlinyu Ghoorlie claim group (there are no common apical ancestors). Further, the native title application filed by the Karratjibbin claim group did not refer to any connection with the Karlamaya or Kapurn people or claim to be part of the Karlamaya or Kapurn people. Nevertheless, during the trial, the Karratjibbin applicant advanced the contention that they are also entitled to be identified as Karlamaya or Kapurn people.
The Karratjibbin application claims the following native title rights and interests in the Karratjibbin claim area:

[116]

By an interlocutory application dated 21 December 2022, the Cooper respondents applied to be joined as respondents to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA, having not otherwise sought to be joined during the notification period. The application was, in substance, unopposed by any party to the proceeding and, on 20 February 2022, the Court made orders for their joinder.
The Cooper respondents contend that they hold native title rights and interests in the eastern portion of the trial area, which encompasses Bullabulling, Coolgardie, Kalgoorlie and Kanowna, and that the Marlinyu Ghoorlie claim group do not hold any such native title rights and interests in that area. The native title rights and interests claimed by the Cooper respondents include rights to access and use lands and waters, to speak for country, and to protect sacred sites. The Cooper respondents contend that they acquired native title rights and interests in respect of the relevant area by descent from their apical ancestor Nada Bilbear (also known as Aneida). Nada Bilbear is said to be a member of a pre-sovereignty society, the "original tribe of Kalgoorlie", that held native title rights and interests in the eastern part of the trial area at the time of effective sovereignty. That society is separate and distinct from those which are asserted by the Marlinyu Ghoorlie and Karratjibbin applicants respectively.
The Cooper respondents acknowledge that, in the present proceeding, they seek only to defensively assert their native title rights and interests as respondents. They do not seek a positive determination of their native title rights and interests, recognising that in order to seek such a determination they would be required to make an application of the kind listed in s 61(1) of the NTA.
Prior to the commencement of the trial, the State brought an interlocutory application seeking to have the Cooper respondents removed as respondents to the proceeding. The application was supported by the Marlinyu Ghoorlie applicant. On 9 August 2023, the Court adjourned that application indefinitely, but gave the State liberty to re-apply at a later date: Dimer (No 1). On 18 September 2023, orders were made granting the Cooper respondents leave to file an amended concise statement and dismissing the State's application for their removal.

[152]

(a) At sovereignty, there was only one body of normative laws and customs in the trial area. Rights and interests in land in the trial area were acquired and transmitted by descent from ancestors who themselves were descended from the original owners of the trial area. The primary means of descent was biological descent, though children and, rarely, adults, could be adopted or incorporated by rights-holders and thereby themselves acquire transmissible rights and interests in land. At sovereignty, none of birth on country, long-term residence on country, knowledge of the sites or mythology of the country, or status as a "law man" or a person who has been through men's law, conferred rights and interests in land, though each of these matters may have conferred prestige or status.

(b) At sovereignty, the people who were united in and by their acknowledgement and observance of the body of normative laws and customs of the trial area were the Karlamaya Kapurn people. The language of the Karlamaya Kapurn people was the Karlamaya / Kapurn language, also known as the 'Karlamaya Kapurn' language. The Karlamaya / Kapurn language was the language for the whole of the trial area. The society to which the Karlamaya Kapurn people belonged was distinct from both the Noongar society to the west and south-west and from the Western Desert society to the east and north. At sovereignty, the three features of laws and customs that were together diagnostic of the Karlamaya Kapurn people and country were:

(i) corporate totemic clans, and recruitment through the male line by presumptive biological descent, each clan possessing an intramural estate carved out of the wider communal Kapurn country (which distinguished the Karlamaya Kapurn from the Western Desert people to their north and east);

(ii) named generation moieties called Beerungoomat and Jooamat, each with a bird totem (which distinguished the Karlamaya Kapurn from both the Noongar to their west and south-west and the Western Desert people to their north and east); and

(iii) male initiation that included circumcision (which distinguished the Karlamaya Kapurn from the Noongar people to their west and south-west).

(c) The normative system of laws and customs of the Western Desert Cultural Bloc did not govern the acquisition, transmission and/or exercise of rights and interests in land in any part of the trial area at sovereignty. Western Desert laws and customs for the acquisition and transmission of rights in land are fundamentally different from those of the Karlamaya Kapurn people because they are far less structured and ordered, with descent, birth on country, long-term residence on country, knowledge of the sites and mythology of country, and status as a 'law man' or person who has been through men's law all being normative means for acquiring rights and interests in land. Western Desert people did not permanently reside in the trial area until after effective sovereignty (in the mid-1890s for the eastern part of the trial area), when the establishment of the towns of Kalgoorlie and Coolgardie became an attractant for Western Desert people who migrated to places near the trial area, such as Laverton and Edjudina, from places far away in the desert such as the Warburton Ranges.

(d) Since the Karlamaya Kapurn normative system of laws and customs allowed acquisition of rights and interests in land only through descent from a Karlamaya Kapurn ancestor who held rights in the trial area, the normative system does not allow Western Desert persons who are not descended from a Karlamaya Kapurn person to acquire rights in the claim area.

(e) By the early 20th century, the Western Desert four-section kinship system was coming into some degree of use in the north-eastern part of the trial area, laid over but not displacing the pre-existing generation moiety system of the Karlamaya Kapurn people. Through the whole of the 20th century until at least the 1980s, Western Desert law men (called wati) acknowledged and respected the authority of Karlamaya Kapurn law men (such as the late Ted Champion and Jack Champion).

(f) Karlamaya Kapurn law men made a collective decision to end the practice of men's law (in the sense of male initiation with circumcision) in the trial area in the 1940s for various reasons.

(g) In or around the 1980s, Karlamaya Kapurn law men allowed certain Western Desert law men from Coonana, Cundeelee and Tjuntjunjarra, whom they had taught the details of some sites in the Coolgardie area, to look after those sites in a 'regent' capacity. Some Western Desert women are still permitted use of an increase site in the Coolgardie area. To the extent any Western Desert people currently carry out any activities with respect to sites in the eastern part of the trial area it is through the express or tacit permission of the Karlamaya Kapurn people. The sites remain the property of the Karlamaya Kapurn people, who have the right under their laws and customs to refuse entry to these Western Desert people.

(h) At a meeting in the early 1990s, Western Desert elder Don Sinclair and Karlamaya Kapurn elder Phil Donaldson and others agreed the boundary between Karlamaya Kapurn country and Western Desert country at the location of the current eastern boundary of the trial area. This agreed boundary reflects the traditional boundary between the two societies in this area.

(i) The Karlamaya Kapurn people have continued to acknowledge and observe the laws and customs governing acquisition, transmission and exercise of rights and interests in land, and other, related, laws and customs, substantially uninterrupted since sovereignty, including by each generation since effective sovereignty. For example, the Karlamaya Kapurn people have continued to acknowledge and observe: the requirement of descent as the means for acquiring rights and interests in land; the laws and customs governing use and management of country, including sites; transmission of knowledge of the sites and mythology of the trial area to subsequent generations; acknowledgement of the presence of Karlamaya Kapurn ancestor spirits in the trial area; and the laws and customs governing use of resources.

(j) There have been some modifications to relevant laws and customs since sovereignty, but these modifications have not changed the fundamental pre-sovereignty traditional nature of the relevant laws and customs. For example, the pre-sovereignty patrilineal form of the descent rule (tracing descent through the male line) has been replaced by the cognatic form of descent (tracing descent through either male or female parents or ancestors). The intramural rights of the totemic patriclans are now held communally at the language group level, such that all Karlamaya Kapurn people may exercise the same rights and interests throughout the trial area, subject to observance of particular laws and customs.

[178]

(a) The traditional laws acknowledged and the traditional customs observed by the Karratjibbin people which underpinned land ownership and land usage of the Karratjibbin people included a requirement that children were taught the 'Lore' and customs of the Karratjibbin people, including through a process of being taught about places created during the period when the land was created, ceremonies, songs and stories related to them and the laws and customs related to the land which the Karratjibbin people acknowledge and observe.

(b) The Karratjibbin people, in accordance with the laws they acknowledge and customs they follow, inherit rights to the Karratjibbin claim area through descent from ancestors with recognised rights and interests.

(c) The Karratjibbin people historically followed a system of social organisation based on endogamous alternate generation divisions and had no section system. Those of one generation belonged to one division and married within the same division. Their children belonged to a second division, being the same division as their grandparents. The two divisions are Beerungoomat and Jooamat, the names of two birds, the kingfisher and the bee-eater, Beerungoomat being a lighter colour than Jooamat. Marriage was endogamous within the divisions of this group, but exogamous for the local group: ie, a Beerungoomat would always marry a Beerungoomat from another area. For example, a Karratjibbin person of Southern Cross might go to Mount Jackson to find a partner. If a Karratjibbin person married a person from a neighbouring district who belonged to a four-section system of social categories, the Karratjibbin person might adopt the section names derived from the other group.

(d) Karratjibbin people historically followed initiation practices which differentiated them from their western neighbours. This included circumcision and subincision.

(e) The Karratjibbin people have maintained a continuous connection with the land and waters of the Karratjibbin claim area, including by the following activities:

(i) Regular visits to the area for the purposes of hunting and cooking in the traditional manner. Animals obtained from the area by hunting include kangaroo, emu and bush turkey, setting lizard traps in rocky areas and duck hunting at Lake Deborah.

(ii) Collecting traditional bush foods, tools and medicines, including crustaceans from the creeks and lakes, berries for jams, prickly bush for medicinal purposes, manna gum for sores and emu eggs for art and exchange with other groups and using the waters of the country.

(iii) Activities related to the observation and protection of places of traditional significance, including taking part in heritage surveys.

(iv) Teaching their children the history of the Karratjibbin people, their traditional stories and songs and dances, the history of songs, including the use of natural ochres for bodily decoration, bush skills, and about areas of traditional and religious significance, their association with rights to land and obligations and activities related to their protection.

(f) While the ritual initiation of men is no longer carried out and the ritual performance at sacred sited by initiated men no longer takes place among the Karratjibbin people, as it was by their ancestors, "Law" grounds remain places of special significance as places continuing to be the locus of spiritual forces for the Karratjibbin people. Numerous rock holes in the landscape containing water are regarded as "living" sites with spiritual potency in relation to which Karratjibbin people show due respect, knowing that, in their tradition, a failure to do so may result in personal calamity. Karratjibbin people who are not initiated "Lawmen" respect, by avoiding, sites of spiritual significance to Karratjibbin people which are potentially dangerous to them, including certain known places where their tradition is that they should get away from those places before dark for fear of their children being stolen away.

(g) Karratjibbin people observe a relationship between the stars in the night sky and creation stories forming part of their cultural beliefs, including the connection between the Milky Way and the Sun being created by the Emu, as a creation figure and an emu egg.

(h) Karratjibbin people observe in their spiritual beliefs the existence of the creative being, the Waarlu, a snake which made a trail from Uluru, to Warburton, Laverton, Bullfinch, Bardoc, Mount Stirling, Beverley, York and Northam to the Swan River, forming the hills and gullies. In their belief system other animals at the time of creation followed the Waarlu trail: the Wayud (emu), kangaroo, dingo, goanna and Yuwan (bobtail goanna). Ancestors of the Karratjibbin become part of the country with which they are associated. The rules of the Karratjibbin require calling out to the country of the ancestral spirits and other specific rituals when visiting sites such as waterholes.

(i) Karratjibbin people have historically been assigned, attributed with or gained one or more totems (borongur), placing them in a special relationship with particular animals and obliging them not to kill, eat or harm those animals. An example is the dog totem (dwerd borongur) based on a legend about two big dogs who ate two men and vomited them up. Some current Karratjibbin people have inherited totems from their parents.

[191]

(a) At effective sovereignty, the trial area and an area immediately to the east of the trial area were an 'interstitial zone' where the cultural practices of two regional societies overlapped. In that interstitial zone, there was a graded or phased transition of cultural practices from the Western Desert regional society to the east, north-east and north, to the Noongar regional society to the west, south-west and south, which includes the Karlamaya Kapurn people among others. The interstitial zone is likely to have had the following features: intermarriage; consociation and cohabitation, especially through runs or lines and range; shared ritual practices and participation, particularly in relation to male initiation; shared Dreaming tracks and intergroup transmission of knowledge about Dreaming sites; the diffusion of the Western Desert section system westwards and southwards; and the diffusion of the Western Desert 'multiple pathways' tenurial system. At effective sovereignty, it is likely that the interstitial zone comprised distinct peoples of separate landed affiliations using a mix of cultural practices.

(b) The Cooper respondents possess native title rights and interests in the eastern portion of the trial area through descent from their apical ancestor Nada Bilbear (also known as Aneida). Nada Bilbear was born between 1875 and 1880 in or near the place that later became Gazetted as Kalgoorlie. Nada Bilbear gave birth to her son, Thomas Henry Cooper, at Kanowna in 1896 or 1897. Effective sovereignty in the eastern portion of the trial area occurred in or about 1893. Nada Bilbear was a member of a pre-sovereignty society that held native title rights and interests in the eastern part of the trial area including the area that is now Kalgoorlie. Nada Bilbear has therefore been described as a member of the "original tribe" of Kalgoorlie.

(c) The normative system that gave rise to Nada Bilbear's native title rights and interests were those laws and customs of the pre-sovereignty society that held rights and interests in the eastern part of the interstitial zone. That normative system of that society was Western Desert laws and customs that had been influenced by the location of that society in the interstitial zone. Specifically, the content of those traditional laws and customs was:

(i) a 'multiple pathways' tenurial system with recruitment via: birthplace in the area; ceremonial responsibility for country; long-term residence; association with a part of the area known as a 'run'; biological descent through patrifiliation and matrifiliation; the raised-up adoption of children; incorporation including by relocation to a spouse's country;

(ii) a four-class section system for social organisation; and

(iii) laws and customs associated with tjukurpa (Dreaming) including: the identification of totems; and describing one's country in terms of sacred sites or geographic places in the landscape.

(d) The persons holding native title rights and interests in the eastern portion of the interstitial area at or around effective sovereignty include: Nada Bilbear; Bob Marakadji; Jimmy and Minnie (siblings of Kitty Bluegum); Kitty Bluegum; Mary, who is an ancestor of Jean Walker; Tom Roundhead; Daisy Decruse; Morry Newman; Bilgidee; Kaddee; and Warada.

(e) Since effective sovereignty, rights and interests in the eastern portion of the trial area have been acquired and transmitted by the 'multiple pathways' tenurial system described above including biological descent through patrifiliation and matrifiliation.

[196]

(a) There was at least one normative system of traditional laws and customs that was acknowledged and observed in the trial area and by which rights and interests were conferred and held in relation to the land and waters of that area.

(b) The State does not know whether rights and interests were possessed under Karlamaya Kapurn laws and customs in the entirety of the trial area, including in particular the area generally to the west of Southern Cross.

(c) The State nevertheless adopts the following contentions advanced by the Marlinyu Ghoorlie applicant:

(i) At sovereignty, rights and interests in land in the trial area were acquired and transmitted by descent from ancestors who themselves were descended from the original owners of the trial area.

(ii) The primary means of descent was biological descent, though children and, rarely, adults, could be adopted or incorporated by rights-holders and thereby themselves acquire transmissible rights and interests in land.

(iii) At sovereignty, none of: birth on country; long-term residence on country; knowledge of the sites or mythology of the country; or, status as a 'law man', or a person who has been through men's law, conferred rights and interests in land, though each of these matters may have conferred prestige or status.

(iv) At sovereignty, the three features of laws and customs that were together diagnostic of the Karlamaya Kapurn people and country were: corporate totemic clans, and recruitment through the male line by presumptive biological descent, each clan possessing an intramural estate carved out of the wider communal Kapurn country; named generation moieties called Beerungoomat and Jooamat, each with a bird totem; and male initiation that included circumcision.

(v) The society to which the Karlamaya Kapurn people belonged was distinct from both the Noongar society to the west and south-west, and from the Western Desert society to the east and north.

(vi) The normative system of laws and customs of the Western Desert Cultural Bloc did not govern the acquisition, transmission and/or exercise of rights and interests in land in any part of the trial area in 1829.

(vii) Western Desert persons did not permanently reside in the trial area until after effective sovereignty (in the mid-1890s for the eastern part of the trial area), when the establishment of the towns of Kalgoorlie and Coolgardie became an attractant for Western Desert persons who migrated to places near the trial area, such as Laverton and Edjudina, from places far away in the desert such as the Warburton Ranges.

[217]

The phrase "traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders" in s 223(1)(a) is a reference to laws and customs having a normative content, being a body or system of normative rules that existed before the assertion of British sovereignty: Yorta Yorta at [38]-[40] and [46]. To speak of rights and interests possessed under an identified body of laws and customs is to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs: Yorta Yorta at [50]). Laws and customs and the society which acknowledges and observes them are inextricably linked: Yorta Yorta at [55].
A 'traditional' law or custom is one which has its origins in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of British sovereignty and which has been passed from generation to generation in the society, usually by word of mouth and common practice: Yorta Yorta at [46]. The reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty: Yorta Yorta at [47].
The plurality in Yorta Yorta was careful to note that reference to a normative system of traditional laws and customs may be distracting if undue attention is given to the word 'system', particularly if it were to be understood as confined in its application to systems of law that have the characteristics of a European body of written laws (at [39]). Nonetheless, the plurality observed that the term recognises the fundamental premise from which the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) proceeded, that the laws and customs of the indigenous peoples of Australia constituted bodies of normative rules which could give rise to, and had in fact given rise to, rights and interests in relation to land or waters (at [40]). Accordingly, the laws and customs in which the relevant rights or interests are founded must be laws or customs having a normative content and deriving from a body of norms or normative system that existed before sovereignty (at [38] and [42]). In Wyman v Queensland (No 2) [2013] FCA 1229 (Wyman (No 2)), Jagot J observed (at [455]) that "normative content" means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society.
The word "society" does not appear in s 223 of the NTA. The plurality in Yorta Yorta explained (at [49]) that, in the context of the NTA, the use of the word "society" is intended to convey no more than a body of persons united in and by its acknowledgment and observance of a body of laws and customs. Their Honours explained, by way of footnote, that they chose the word "society" rather than "community" to emphasise the close relationship between the identification of the group and the identification of the laws and customs of that group. In Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (Alyawarr), the Full Court (Wilcox, French and Weinberg JJ) expressed the following caution with respect to the use of the term "society" in the native title context (at [78]):

[240]

As has been explained in a number of decisions, s 223(1) of the NTA requires the Court to consider the laws and customs of the present day claim group and to ascertain whether, under those laws and customs, the members of the claim group possess rights and interests in the claim area and, by those laws and customs, have a connection to the claim area. If they do, the Court then asks whether those laws and customs can be said to be traditional, noting that the concept of 'traditional' is one which accommodates necessary adaptation of those laws and customs in response to European settlement of the claim area and the assertion of British sovereignty over the claim area (and the Australian continent): Croft (on behalf of the Barngarla Native Title Claim Group) v South Australia [2015] FCA 9; 325 ALR 213 at [640] (Mansfield J); Starkey v South Australia [2018] FCAFC 36; (2018) 261 FCR 183 (Starkey) at [46(d)] (Reeves J with whom White J agreed). This follows from the fact that the requirements of s 223(1) are drawn in the present tense: the definition is concerned with the traditional laws and customs presently acknowledged and observed and whether the claimants currently possess rights and interests under those laws and customs and have a current connection with the land and waters concerned by those laws and customs: Yorta Yorta at [85]; Stuart at [20]-[21]; Starkey at [48].
The present day focus of the required analysis was explained by the Full Court in Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464 (North, Barker and White JJ) as follows (at [182]-[186]):
1. Depending upon the evidence that is led in any case, claimants may establish that they continue to have a normative society rooted in the classical, sovereignty society out of which rights and interests contended for continue to be possessed, even where a range of rules and practices under laws and customs have ceased to be followed.
2. In the course of making an inquiry as to whether such a normative society continues, evidence of the loss of some classical laws and customs may be relevant, as may be the apparent creation of some new laws and customs. The inquiry remains, however, whether there continues to be a traditional normative society, notwithstanding there has been some loss, disuse or abandonment.
3. That inquiry is not properly made if it merely involves a "ticking off", as it were, of classical laws and customs identified by the evidence having regard to the evidence of contemporary practices. There remains a requirement to consider whether what has been maintained, where that is found to be the case, demonstrates the maintenance of a normative system that is rooted in the sovereignty normative system.
4. Even where a group, or even an individual, has apparently lost much, but despite the vicissitudes of life since the coming of Europeans has maintained certain laws and customs under which rights and interests are possessed, native title may still be found to exist. This is because it may be seen, in an appropriate case, that the traditional normative system in material respects has not been lost, fallen into disuse or abandoned.
5. The question is whether the evidence in any case demonstrates that claimants are possessed of rights and interests under laws and customs that are rooted in the sovereignty laws and customs. Even a few claimants, or a single claimant, may possess such rights and interests, as indeed the s 223 definition of native title allows.
As explained by Barker J in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204(Badimia) at [356], s 223 does not require that the present day Aboriginal society maintains particular features of a "classical" society (ie, a society before European settlement). His Honour observed (at [358]-[360]):
1. In some instances, the continuing "vitality" of a group who have remained relatively unaffected, in relation to their law and customary practices, by the European settlement of Australia may be obvious, even to non-indigenous outsiders without any ethnographic training or experience. It may be that within that particular group the classical hallmarks of a pre-sovereignty group, as reflected in the anthropological evidence, are still extant. Depending on what part of Australia the group is from, members of the group may still speak their own distinctive Aboriginal language as a first language. They may observe a range of traditional rules concerning birth, initiation, marriage and death. They may have a section and subsection system or moiety system and kinship system that is on display for all to see, and conduct ceremonies involving many people. That same apparently classical group may also still depend, particularly among the members of the upper generations, on animals hunted, fish and birds caught, and foods gathered on their traditional country. But, depending on the evidence led in any case, the absence of a range of indicators of such a classical Aboriginal "society" does not necessarily mean that there is not today a body of persons united by their acknowledgement of traditional laws and observance of traditional customs under which they possess rights and interests in relation to their traditional country. A group of claimants, for example, may be extremely cross-cultural in the 21st century, that is to say, have their feet firmly planted in a broader Australian post-sovereignty society and live a contemporary life outside a claim area, and still maintain a connection to their traditional country in a way that meets the requirements of the s 223 definition of native title.
2. All that may be considered perhaps a long way of saying that merely because claimants may no longer converse in a distinctive Aboriginal language, conduct rites and ceremonies or live a bush life on country, for example, does not mean they cannot prove native title under the NTA.
3. It follows that the loss of many of the attributes of an inferred classical Aboriginal society will not necessarily carry with it the consequence that a claimant application must fail. The inquiry required under native title law under the NTA, as Yorta Yorta demonstrates, is more nuanced than that. Rather, it is driven by the need to make a factual inquiry into whether the requirements of s 223 have been met.

[259]

As noted earlier, lay witness evidence was given on behalf of the Marlinyu Ghoorlie applicant, the Karratjibbin applicant, Elizabeth Sambo and the Cooper respondents at the Kalgoorlie Town Hall in February 2023 (at the preservation evidence hearing) and at the Kalgoorlie Town Hall and at several sites within the trial area in October 2023. The lay evidence is considered in this section of the reasons.
In addition to hearing evidence from the lay witnesses, the Court received documentary evidence of statements made by deceased forebears of the Marlinyu Ghoorlie claim group and the Karratjibbin claim group. That evidence took several forms, including records of interview with anthropologists, affidavits prepared for earlier native title claims in respect of the trial area and transcripts of oral testimony given in earlier native title proceedings. Generally, that evidence was received without objection pursuant to the exception to the rule against hearsay in s 63 of the Evidence Act 1995 (Cth) (Evidence Act). That evidence is also considered in this section of the reasons.
As a general observation, when assessing the veracity and probative force of evidence given by an Aboriginal witness who claims to possess an interest in the land and waters of a claim area, the Court must give close attention to the witness's personal history including: the identity of their forebears; where they grew up and where they have lived during their life; and the persons from whom, and the circumstances in which, they acquired knowledge of country and knowledge of the traditional laws, customs, language and culture pertaining to the country. Where there is conflict in the evidence concerning the traditional laws, customs, language and culture pertaining to an area of land and waters, the Court must assess the veracity and probative force of a witness's evidence by reference to the sources of the witness's knowledge. This reflects the fundamental requirement of the NTA that native title rights and interests have their origin in pre-sovereignty traditional law and custom which have been transmitted from generation to generation to the present day. The lay witness evidence given on behalf of the different parties varied in the extent to which it addressed the witness's personal history.

[269]

Brian's paternal grandfather was an Aboriginal man named Jim Champion from Shark Bay, and his paternal grandmother was Nellie Champion.
Brian said that, when he was very young, the family lived in bush camps on the outskirts of the towns of Kwolyn and Babakin. When Brian was six or seven years old, the family left Kwolyn and went to Southern Cross "because the old Kapurn people were living there". They lived at the old reserve and Brian's father worked on farms in the area. The family also went to Merredin, Southern Cross, Bullfinch and Golden Valley, north-west of Bullfinch. Other than Merredin, those places are in the western half of the trial area.
Brian Champion Snr gave evidence at the location of the Aboriginal reserve on the outskirts of Southern Cross. He spoke of the people living at the reserve when his family lived there, including William Sambo, Don Roundhead and Frank Roundhead. He said that 10 to 20 families were living at the reserve. He described the period as "pretty hard times" and "we had hardly any money for food". Brian said that some of the men worked at the slaughter yard which was down the road and, after animals were slaughtered, members of the family would go down to collect the offal and other parts of the animals that would be thrown away. Brian said that a lot of it was "still good to eat". Brian gave evidence that he remembered a corroboree when he was a small boy at the reserve at Southern Cross. He described how, as a small boy, he was with the women and he had a rug over him, from which he looked out.
When Brian was about six years old, the family went to Kalgoorlie to live for a period of six to eight months as his father had a permit to work in downtown Kalgoorlie, and he also had a permit which allowed him to work for a business in Boulder that had to do with horses and stock-feed. The family lived in a camp near the abattoir where other Aboriginal people lived but their freedom of movement was restricted. A curfew meant they were not allowed in a six-mile radius from the post office after sundown. Brian observed that "[w]e were not free people". He recalled one occasion when his mother took the children to Boulder to see a picture show but "there was no room for us. We were not allowed in. As a child we were not allowed in to see a picture show".
When he was about 9 or 10 years old, Brian was taken away to the Church of Christ Aboriginal Mission near Norseman, together with his brother Ben and his sister Gertie. Brian said:

[345]

Ricky Dimer was born in Coolgardie in 1952, and currently resides there. Ricky stated that he is Karlamaya Karlaku through his mother, Dorothy Dimer (née Donaldson), and Ngadju through his father, Ollan Dimer.
Ricky's mother, Dorothy Dimer, was born in 1929 and, accordingly, at the time of trial was an elderly woman. She died after the conclusion of the trial on 1 June 2024. Dorothy was the daughter of Dick Donaldson and Alice Minjin. Dorothy Dimer had four siblings: Phil, Clem ("Kingy"), Henry and Bob Donaldson. All are deceased. Ricky Dimer said that he is an elder of Kalgoorlie through his maternal grandparents, Dick Donaldson and Alice Minjin. Ricky said that his mother, Dorothy, used to describe herself as a Karlamaya Kapurn person but, when native title claims started, she started to use the term Maduwongga. Ricky stated his belief that, when Dorothy used the word Maduwongga, she was referring to Mount Burges. As discussed later in these reasons, Maduwongga is a tribal name given by Norman Tindale to certain people he interviewed in and around the trial area in 1939. For the reasons explained below, I have concluded that the Aboriginal people who possessed rights and interests in the trial area before European settlement were not Maduwongga people. On the basis of Ricky Dimer's evidence (and the same evidence given by Ricky's sister Maxine below), and the ethno-historical evidence discussed below, I infer that Dorothy Dimer adopted the Maduwongga name from the Tindale records and that it was not a name passed down to her from her parents or other forebears.
Ricky Dimer was not cross-examined about the beliefs of his mother with respect to the Marlinyu Ghoorlie claim, but his sister Maxine Dimer was cross-examined about those matters. Maxine's evidence, and my findings on that topic, are discussed below.
Ricky Dimer's Aboriginal name is Kyuntjilli. He was named after his mother's uncle, Jimmy Kyuntjilli, because there is a special relationship between uncles and nephews, and also, when he was a boy, Ricky exhibited traits similar to those of Jimmy Kyuntjilli.
Ricky has 11 siblings: Betty, Norma, Maxine, Alison ("Bubsy"), Eva (deceased), Wyvern, Warren, Ollan Samuel ("Samuel"), Christopher, Kay and Anita ("Annie").
When Ricky was young, his family lived on Credo Station (which is within the trial area, to the north of Mount Burges). He attended school through correspondence with the "School of the Air". When Ricky was a little older, his parents moved into Coolgardie, where he attended school. In Coolgardie, Ricky's family lived in what was called a 'reserve', which was located 1.5 kilometres north of the Coolgardie town centre. Ricky explained that the reserve had showers and running water coming off the Coolgardie pipeline, and it was known as the Coolgardie Pipeline Reserve.
After leaving high school in the late 1960s, Ricky worked in various jobs in and around the trial area, including at Mount Burges Station, Norseman and Coolgardie. He also spent periods of time in Ceduna, South Australia and Macarthur River, Northern Territory. Since the early 1990s, Ricky has lived in Coolgardie. From 2007-2021, he worked at the Bega Health Centre in Kalgoorlie, commuting from Coolgardie to Kalgoorlie each day.
Ricky Dimer believes that he is a descendant of Kaddee and Warada, who are apical ancestors for the Marlinyu Ghoorlie claim group. As stated above, Ricky's maternal grandmother was Alice Minjin. Ricky stated that Alice Minjin's biological father was a white man, but her adoptive father was King Billy whose parents were Kaddee and Warada. King Billy's Aboriginal name was Nyuumani. Ricky said that, when he was growing up, his mother, Dorothy Dimer, used to speak about King Billy often. She told him that King Billy's cultural group was Karlaku / Karlamaya. His mother also told him that Alice Minjin and her mother both spoke the Karlamaya language. Ricky Dimer explained that even though Alice Minjin's biological father was a white man, she was still accepted as King Billy's daughter.
Ricky Dimer said that his maternal grandfather was Dick Donaldson, a Karlaku elder whose language was Ngadju / Karlamaya. Grandfather Dick's mother came from Fraser Range, approximately 100 kilometres east of Norseman, which is outside the trial area. Ricky believes that that area was Dick Donaldson's "rightful country". However, after Dick Donaldson married Alice Minjin, King Billy bestowed custodianship rights of the Coolgardie and Kalgoorlie area onto Dick Donaldson because King Billy's sons were unable to take on the custodianship. This meant he was responsible for looking after all the sites from Coolgardie through to Kalgoorlie and down to Norseman and Fraser Range. Ricky said that Dick Donaldson went through Karlaku / Ngadju law and held the same rights as other Karlamaya Karlaku people.
Ricky said that Dick Donaldson and Jack Champion (whom Ricky referred to as Uncle Jack Champion) were lawmen for the Coolgardie / Kalgoorlie area. Ricky said that he observed this as he was growing up. They lived in Coolgardie. They went away and to have meetings in the bush together. They connected with the other law people from the east of Kalgoorlie. Ricky said that Jack Champion had good knowledge of the storylines of the area and often assisted Dick Donaldson with his responsibilities. Ricky also said that his grandfather had a very strong "law business relationship" with Ted Champion, whom Ricky prefers to call "T.C.". Ricky said that, together, they were very powerful senior lawmen.
When Ricky was young, he lived next door to his grandfather, Dick Donaldson, in Coolgardie. Ricky remembers that his grandfather would often meet with Aboriginal people who were visiting the area. Dick Donaldson spoke about seven languages and was able to speak to the visitors, with whom Dick exchanged information about what was happening in their respective countries. He was able to tell Aboriginal law people visiting from other areas whether they were permitted to have access to certain sites in the area.
Ricky explained that Dick Donaldson was a good "lawman":

[350]

Ricky Dimer explained that, for Kapurn people, rights in an area are obtained by having connections with ancestors. Marrying a Kapurn person does not give that person rights unless they are bestowed with custodianship rights (like the custodianship rights that were bestowed on Dick Donaldson). If a man does not have any rights but his wife is connected to the country, then their children will have rights in the area through their mother. You can only become Karlamaya Karlaku by descent ("having the blood") or by being accepted as adopted in.
Ricky said that, when people from other cultures come onto Kapurn country to take care of the Kapurn "sites", they do not obtain rights in the country. Ricky gave the example of the "Tjuntjuntjara mob" from the Cundeelee Mission who come onto Kapurn country to take care of the sites. If they came down and tried to speak for Kapurn country, they would get into lots of trouble - spiritually and otherwise. Ricky said that people now claim to know and speak for the country who do not know it.
Ricky Dimer was told by his grandfather, Dick Donaldson, the Dreaming stories of the area and information about which sites to avoid. Information about important sites was also passed onto him by his father and his maternal uncles, Phil and Kingy (Clem). Ricky's father, Ollan Dimer, learned about sites from Dick Donaldson and William Sambo, though Ollan was not involved in any law business. Ollan spoke to Ricky about some of the sites but he told Ricky not to get involved with the "law business" because law business was finished in their group. It was clear from his evidence that when Ricky said "law business", he was referring to traditional initiation practices. The Kapurn people stopped the traditional initiation practices in the early 1930s and 1940s.
Ricky Dimer explained that protecting sites is important because they are part of the Dreaming stories. He further noted that it is important to respect the spiritual power of the land and ensure that one has permission to enter particular sites. Failing to follow these rules may result in bad things happening. Ricky provided some examples of important sites and what happens when they are not respected. Ricky referred to a "scary place" north of Coolgardie, west of Carbine Station. Old people used to not let their family go near that area. Dick Donaldson warned Ricky that it was a "breakaway sort of country" and, after dark, there are scary experiences that lure children away. Another example was the southern side of the railway line behind the Coolgardie Hospital, which Dick Donaldson told him to avoid as there are significant men's and women's places in that area.
Ricky Dimer recounted a story about a young boy who went to a significant place on a motorbike before sundown. Because he did not have permission to enter the site, he got lost overnight. When he came back in the morning, Ricky's mother said to him he should not have gone that way, as there are bad spirits that will draw you away.
Ricky explained that he feels safe when he is out in the bush, even though it feels creepy to other people.
When giving evidence at Mount Burges, Ricky Dimer provided a history of the colonisation of the Mount Burges area and creation of the pastoral lease when gold was discovered. He explained that the Karlamaya name for Mount Burges is Malaurdi and that the Karlamaya people were responsible for looking after Malaurdi. Ricky also explained that the area was not only an important place for his people, but also for other Aboriginal people from other areas:

[356]

Ricky Dimer explained that the Karlamaya word for Dreaming is thugururu, whereas the Western Desert people use the word tjukurpa.
Ricky also provided evidence at the Coolgardie rock hole, located in the town of Coolgardie, together with Maxine Dimer. Ricky said that in the Karlamaya language the rock hole is called Kulkurdi, and expressed his belief that the name refers to a red mulga tree (called curlka) located approximately 50 metres from the rock hole. Ricky expressed his belief that the town of Coolgardie originated from that name (Kulkurdi). Ricky provided the history of the Kulkurdi rock hole as told to him by his elders (including his grandfather, uncles and mum). The rock hole used to be a soak, which was much smaller and full of soft chalky rock that held water all the time. Europeans came and blasted out the soak to extend the rock hole so that it filled with water that could be used for steam trains. The Aboriginal people living in Coolgardie at the time did not like that. The rock hole then filled up with water after it had rained, and because there was no fence around it a couple of children drowned in the rock hole. When diesel power was introduced, the rock hole became unused as large amounts of water were no longer needed for the train engines.
Maxine Dimer gave evidence about the small 'gnamma holes' that were around the rock hole. These were natural depressions in the rock, around 30 cm to 70 cm across, from which her ancestors gathered water. Maxine also explained that her mother taught her that this was where her ancestors used to gather seeds from the acacia trees in the area and grind them into flour, which would be mixed with water to make little "Johnny cakes" or little dampers. As a result, there were often tools found in the area, such as flat bottom stones and grinding stones. Maxine has previously found these tools herself.
Ricky and Maxine Dimer also gave evidence about the significance of finches, which were sitting in a tree near where they were giving evidence at the Coolgardie rock hole. Maxine said that the finch was her totem and that they are a very common bird in Coolgardie. Ricky also recounted a story about the finches, which all have different coloured beaks. The story was told to him by an old friend, who has now passed away but was an initiated man. The finch storyline passes from Coolgardie across the Nullarbor and Rawlinna and extends to Eucla (for which the Aboriginal name is Euaila). In Euaila, the finches would eat from small bushes with berries that are coloured red, orange, yellow and purple, and that is how the birds got their different coloured beaks. Ricky noted that when he goes down to that area (which he visits often as his wife comes from Ceduna), he saw that the berries did indeed have different colours, and he understood the story that his old friend had told him.

[359]

Maxine Patricia Dimer made a written statement dated 4 August 2023, which was tendered in revised form on 3 October 2023. She gave evidence at the Kalgoorlie Town Hall on 3 and 4 October 2023, and at Coolgardie rock hole on 13 October 2023 jointly with her brother, Ricky Dimer. She was cross-examined on both of those occasions. A summary of the evidence provided by Ricky and Maxine at the Coolgardie rock hole is set out above in connection with Ricky's evidence. Maxine also supported Ricky when he gave evidence at Mount Burges on 13 October 2023. Although she assisted her brother at times during his evidence, she was not formally called as a witness and did not give evidence at that location.
Maxine's residential address is in Coolgardie.
I found Maxine Dimer to be a careful and honest witness who, although quietly spoken, sought to give direct answers to the questions asked of her. I accept her evidence.
In the course of cross-examination, Maxine was asked about the beliefs of her mother, Dorothy Dimer (nee Donaldson), concerning the Marlinyu Ghoorlie claim. As discussed earlier in the context of Ricky Dimer's evidence, Dorothy Dimer was born in 1929 and, accordingly, at the time of trial was an elderly woman. She died after the conclusion of the trial on 1 June 2024. Dorothy Dimer is the daughter of Dick Donaldson and Alice Minjin. Dorothy Dimer had four siblings: Phil, Clem ("Kingy"), Henry and Bob Donaldson. All are deceased. It is convenient to address the cross-examination concerning Dorothy Dimer at the outset, as Maxine has inherited her rights and interests in Kapurn country through her mother, Dorothy.
During cross-examination, Maxine Dimer was asked about the Widji native title claim (WAD 6243 of 1998), which was filed in June 1998 and dismissed under s 84C(1) of the NTA for want of authorisation in 2012: see Velickovic v State of Western Australia [2012] FCA 782. As disclosed in the reasons for the dismissal, the Widji claim overlapped four other claims: the Ngadju claim (WAD 6020 of 1998), the Central East Goldfields claim (WAD 73 of 1998), the Kalamaia Kabu(d)n claim (WAD 6216 of 1998) and a claim brought by Marjorie May Strickland (WAD 301 of 2010) (which was a forerunner to the Maduwongga claim). As such, the Widji claim partly overlapped the trial area, but also overlapped an area to the south-east which is now recognised as Ngadju country. Again, as disclosed in the reasons for dismissal, the Widji claim group was framed in a narrow manner, being the "descendants of Kadee who have elected to trace descent through the forebears of Dorothy Donaldson" (being Maxine Dimer's mother, Dorothy Dimer). An anthropologist, Dr Stephen Johnson, swore an affidavit in support of the claim, stating that the Widji elders are Dorothy Dimer and her children. Maxine acknowledged in cross-examination that she was a member of the Widji claim group (but it was not suggested that she was a named applicant for the claim). Maxine also accepted that, at that time, she identified as being a member of the "Widji people". Maxine also accepted that she was not included in the claim group for the overlapping Kalamaia Kabu(d)n claim. Maxine was asked whether, at that time, she believed that Kalgoorlie and Coolgardie were not part of Kapurn country, to which she replied that she "wasn't too sure".
In her witness statement, Maxine Dimer said that her mother, Dorothy Dimer, described herself as "Kalamaia Maduwongga" as well as Ngadju and Kalarku. Maxine said that her mother told her that the word 'Maduwongga' comes from the Kalarku word marda meaning 'hill', which refers to the hill that Europeans call Mount Burges. During cross-examination, Maxine said that her mother did not accept that the name Kapurn covers the Coolgardie area.
Dorothy Dimer's beliefs concerning her ancestry and rights in the trial area were considered by anthropologist Nell Taylor and are referred to in the context of Ms Taylor's evidence below. Ms Taylor relied on two affidavits sworn by Dorothy, in 2004 and 2009, in other proceedings.
The evidence as a whole suggests that Dorothy Dimer's beliefs about her family's tribal name changed over time. However, whilst Dorothy appears to have adopted different tribal names over time, her beliefs concerning her ancestry and rights in the trial area appear to have been consistent throughout. In particular, Dorothy consistently stated that she was a descendant of Kaddee, through her son King Billy and his daughter Alice Minjin who married Dick Donaldson. Dorothy also consistently stated that she held rights and interests in at least the eastern half of the trial area, and also in areas that are now recognised as Ngadju country.
Understood in that context, I consider that Maxine Dimer's evidence was not undermined by the evidence concerning her mother's beliefs about the name Kapurn. Further, and importantly, the cross-examination did not cause me to doubt Maxine's truthfulness as a witness. She answered all questions in a measured and direct manner and, as noted above, I accept her evidence.

[360]

Maxine Dimer was born in Coolgardie in 1954.
As noted above, Maxine's mother was Dorothy Dimer, whose mother was Alice Minjin, and her father was Ollan Dimer, who was Ngadju and Mirning. Maxine has eleven siblings, including Ricky Dimer.
When Maxine was growing up, she lived mainly around Coolgardie, but also lived for a period in Esperance, Salmon Gums and Fraser Range (where her father, Ollan Dimer, was sent for work).
For the majority of her early life, Maxine Dimer lived at Credo Station. When Maxine was around 10 years old, the family moved to Coolgardie, where they first lived at the Coolgardie Reserve. Maxine's parents later purchased a house on the north side of Coolgardie, and they moved further into town. Maxine started her primary schooling in Coolgardie. While attending high school, Maxine worked at the hospital.
After leaving school, Maxine Dimer worked caring for children in Southern Cross, Merredin and finally in Esperance, where she met her partner and had children. The family then returned to Coolgardie in 1980 to bring up the children. From the 1990s-2018, she worked as a health worker at Kalgoorlie Aboriginal Medical Service (commuting from Coolgardie). Maxine has three children and seven grandchildren.
Maxine Dimer said that her father, Ollan Dimer, was a Ngadju man from Balladonia. His father was Jacob Dimer, who was also a Ngadju man from Balladonia. Ollan Dimer's mother was a Mirning woman.
As noted above, Maxine Dimer said that her mother, Dorothy Dimer, referred to herself as "Kalamaia Maduwongga" (as well as Ngadju and Karlaku). Maxine said that her mother told her that the word 'Maduwongga' comes from the Karlaku word marda meaning 'hill', and that the name 'Maduwongga' refers to the hill that Europeans call Mount Burges. As noted in the context of Ricky Dimer's evidence, and discussed later in these reasons, 'Maduwongga' is a tribal name given by Norman Tindale to certain people he interviewed in and around the trial area in 1939. For the reasons explained below, I have concluded that the Aboriginal people who possessed rights and interests in the trial area before European settlement were not Maduwongga people. On the basis of Maxine Dimer's evidence (and the same evidence given by Maxine's brother Ricky above), and the ethno-historical evidence discussed below, I infer that Dorothy Dimer adopted the 'Maduwongga' name from the Tindale records and that it was not a name passed down to her from her parents or other forebears.
Dorothy Dimer's father was Dick Donaldson, who was a Karlaku man from Fraser Range. Maxine Dimer said that Dick Donaldson came to Coolgardie where he met Alice Minjin, Maxine's grandmother. They then had five children together, including Maxine's mother, Dorothy.
Maxine Dimer said that Alice Minjin was Karlamaya and she spoke the Karlamaya language. Maxine said that her mother and grandmother used a lot of Karlamaya words and that the Karlamaya and Ngadju languages are almost the same.
Maxine Dimer said that Alice Minjin's biological father was a white man named Michael O'Shaughnessy. Alice was then adopted by King Billy, who became her "tribal father". Dick Donaldson told Maxine that King Billy was recognised as Kapurn. Maxine said that his Aboriginal name was Nymbarning (although other witnesses spelled his name as Nyuumani) and his country was Coolgardie. Maxine said that King Billy was the tribal man for mainly Kalgoorlie and Coolgardie. Maxine also learned from her mother that King Billy's children were Frank Roundhead, Tommy Roundhead, Johnny Wilson (Johnny took the Wilson name after Alice came back from the mission with that name) and Alice.
Maxine said that Alice Minjin's mother was Mary-Ann, who was Karlamaya. Maxine's mother told her that Mary-Ann was born at Daveyhurst and she was from the 'Paddy' family. Maxine gave evidence that she identified the Paddy family in a Tindale genealogy and concluded that Mary-Ann's parents were Nelly Paddy and King Paddy. The Paddy family is considered later in these reasons. The available historical information does not support Maxine's belief that Mary-Ann's parents were Nelly Paddy and King Paddy.
Maxine Dimer said that Lucy Sambo's children, William and Cadley, grew up with Maxine Dimer's mother, Dorothy, and her brothers. Maxine's grandmother, Alice Minjin, looked after them as she didn't want "the welfare" to take them.

[361]

In her witness statement, Maxine Dimer said that Grandfather Dick Donaldson used the word Karlaku to describe himself. He described his wife (Alice Minjin) as being Karlamaya and said that the Karlamaya language group comes all through from Southern Cross, across to Coolgardie and then from Kalgoorlie across to Norseman. It continues to the Mirning people and mixes in with their area. Grandfather Dick told Maxine that the Karlamaya language group is one big society from Southern Cross right through to Kalgoorlie and Coolgardie, which includes clans with mixed dialects. Maxine Dimer said that her understanding is that Karlamaya also goes west of Southern Cross. In oral testimony, Maxine said that Grandfather Dick also described himself as Ngadju Karlamaya, as well as a Kapurn person and a Marlpa person.
Maxine Dimer also explained her understanding of the meaning of the names referred to above. She said that the word kapurn means 'man', and that it was used frequently in Coolgardie and the surrounding area. Maxine explained that the old people would say: "Who this Kapurn coming along?" Maxine said that she believed the word karla means 'fire' and the word maya means 'home area' or 'camps', with the connected word, karlamaya, meaning a campfire. Maxine said that marlpa is a word for 'Aboriginal man' in the Ngadju language.
As noted earlier, Maxine Dimer said that her mother, Dorothy Dimer, described herself as "Kalamaia Maduwongga" as well as Ngadju and Karlaku.
Maxine Dimer said that she is Ngadju Karlaku Karlamaya Kapurn. Maxine Dimer said that it does not make a difference if a person uses the name 'Karlamaya' or 'Karlaku' to describe themselves. The name 'Kapurn' covers the whole area.
Maxine Dimer said that her mother, Dorothy Dimer, spoke Ngadju, but that Maxine's grandmother, Alice Minjin, spoke Karlamaya. Maxine said that her mother did not involve the children in learning language. She said that the elders did not want the children to speak language, because they were worried that "the welfare" would take the children away. Maxine said that she speaks some words in language, but she does not speak it fluently. She said that she is disappointed that she did not learn her language properly. Maxine explained that, when she was growing up, she spoke some Ngadju. She also spoke Wongai words that she learned in school, but Grandfather Dick Donaldson would tell her, "You can't use that word because that's not your language!".

[362]

Maxine Dimer said that the main families who are the traditional owners for the trial area are the Donaldsons, Champions, Sambos, Dimers and Wilsons (noting that the transcript incorrectly refers to the family name "Williamson" instead of "Wilson" - there is no reference in the evidence to a Karlamaya Kapurn family with the name Williamson).
Maxine Dimer said that her mother and her uncles told her that when Grandfather Dick Donaldson married Alice Minjin, the Coolgardie area (Kalgoorlie, Coolgardie and as far as Boorabbin) was left in the hands of Grandfather Dick Donaldson. Even though he was a Karlaku man, he was given responsibility for the Coolgardie area because he had married King Billy's eldest daughter. Grandfather Dick Donaldson told Maxine Dimer when she was young that King Billy had passed on the rights to him through ceremony. He knew he did not own the country, but he was to look after it for King Billy's descendants, who had the "right blood" for the country.
Maxine Dimer said that when Grandfather Dick Donaldson was in Coolgardie, he lived with her family. His "main thing" was to look after Maxine Dimer's mother, Dorothy Dimer, as she was his only daughter. Maxine explained that Grandfather Dick Donaldson had to be in a separate house because he had lots of "tribal men" coming to visit him. She said that they came from Warburton and that her family called them "Wongi men". Her grandfather told her that the men were special.
Maxine Dimer recounted that her family used to sit around the fire at night after dinner and Grandfather Dick would tell them Dreamtime stories. Maxine remembers that suddenly, a stone would come, or a noise, and her grandfather would tell them to go inside so that he could see his visitors. Maxine said that Grandfather Dick did "secret men's business".
Maxine Dimer said that her Grandfather Dick Donaldson used to take her to get firewood in a vehicle that her father had bought her so that she could learn to drive. Grandfather Dick took Maxine to some paddocks that were owned by the butcher. After they entered a particular paddock, Grandfather Dick would tell Maxine to wait in the car, while he would get out and walk approximately 200 metres and then disappear behind a tree. Maxine could not see what he was doing. He would then come back to the car and they would go and get firewood together. Maxine Dimer explained that around 20 years ago, she found the tree and went to look where her grandfather had walked. Maxine found a big hole in the ground near the tree. Maxine believes that there were message sticks in that hole left by tribal men, and that is why Grandfather Dick Donaldson would go there so often.
Maxine Dimer's grandfather, mother and uncles told her that Ted Champion (Brian Champion Snr's father) was a "lawman". Maxine Dimer said that Ted Champion was part of "our group" and he and Grandfather Dick played a very important role together in caring for the boundaries of Karlamaya and Kapurn country. When Ted Champion and Jack Champion moved into Coolgardie in the 1960s, they would go out in the bush together and go to funerals. They would take Jack's sons to the bush and teach them bush skills. Ted would go occasionally but he was quite frail.
Maxine Dimer said that Don Roundhead was the son of Frank Roundhead, and the grandson of King Billy. He lived in Coolgardie and came around to the Dimer's house with his wife Noona in the 1960s and 1970s.

[364]

Maxine Dimer explained how rights were passed down under Kapurn laws and customs. She said that her own rights to country were passed down to her from King Billy through his daughter Alice Minjin. Maxine's mother, Dorothy Dimer, told her that rights were passed down from the mother's side. Maxine said that rights were not passed down by reason of being born in Kapurn country; rather, they were passed down through the family line. As an example, Maxine noted that that her sister was born in Esperance, but her rights are in the Coolgardie area.
Maxine Dimer's knowledge of Dreaming sites was told to her by Grandfather Dick Donaldson. When Maxine was a child, he told her about a women's site six kilometres south of Coolgardie. Grandfather Dick said it is a very important site that relates to a woman who fell over. There is a rock in the shape of someone who fell over and there is a cave underneath the rock. The cave has rocks that look like breasts hanging down, and up the top there is a waterhole showing her bottom. Maxine said that the Tjuntjuntjara tribal women (but not other Wongai people) still come and do a ceremony there. They put fresh gum leaf branches at the breasts, because it is a fertility site. Maxine noted that this does not mean that it is Tjuntjuntjara country.
Maxine Dimer said that Grandfather Dick stopped putting boys "through the law" around the 1950s because a young man had died from an infection after initiation. Maxine said that he still passed on knowledge of country, including hunting knowledge, by spending time in the bush with young men.
Maxine explained how she and other people respected the spiritual power of the country. She said that whenever they went out bush, they had to light a fire to let the spirits know they were there. Lighting a fire made sure that the spirits would watch over them.
Maxine Dimer said that in the old days, Noongar people and Wongais had to talk to elders before hunting on Kapurn country. She remembers they used to come and ask Maxine's mother for permission and let her know they were going out bush. Maxine said that when they come now, they let her brother Ricky know.
Maxine Dimer said that the Tjuntjuntjara people from the east look after Kapurn sacred sites (but do not have rights in the country). They have standing permission from Kapurn people to do that. Maxine said that she does not know what sites they visit (apart from the women's site referred to above) and that they come occasionally. They let Kapurn people know when they are on country. Maxine said that Grandfather Dick Donaldson gave permission for the Tjuntjuntjara people to have funerals and bury their people on Kapurn country. Coolgardie is a very important place for lots of tribes.
Maxine Dimer also explained her obligations to visiting people from other areas. Years ago, when men would come to look after the sites, they would sit in the backyard, and it was Maxine's duty to give them a "feed and water". She said that when they do come to Coolgardie, her brothers go and get a kangaroo for the visitors, and provide water and set up camp. Maxine explained that they have permission to enter, but if they disturb her country they will not "feel good themselves".
Maxine Dimer also said that she passes on her knowledge to others. She said that she takes her children, grandchildren and her cousin's children out in the bush. She teaches them bush skills, tells them stories, and teaches them about the country, language and animals.

[367]

Malcolm Champion was born in Kalgoorlie in 1959.
Malcolm's father was Malcolm Benjamin Champion (the brother of Brian Champion Snr) and his mother was Mary Constance Tucker (née Reynolds).
Mary was a Mirning woman, born at Mount Margaret Mission.
Malcolm Champion said that his father, Malcolm Benjamin Champion, was born in Babakin in approximately 1934. This was in the Wheatbelt Region, in Noongar country. Malcolm Benjamin Champion's parents travelled around for seasonal work. Malcolm Benjamin Champion was sent to the Church of Christ Mission at Norseman when he was a child. Malcolm Champion gave evidence about the church and his father's time at the mission. He said that the church divided and subdivided his people, took away their rights on their land, and their country, and tried to "destroy their spirituality". Malcolm said that his father tried to escape three times from the mission and was eventually successful. After he escaped, he started working around Southern Cross for an Italian family.
Malcolm Champion said that his father's parents were Edward Champion ("Pop Ted") and Elsie Nelson / Riley ("Nana Elsie"). When Malcolm was growing up, he spent a lot of time with Pop Ted and Nana Elsie. Malcolm explained that Nana Elsie was a Noongar woman from Dumbleyung in Ballardong country. She grew up at Dumbleyung, Wagin and Merredin. Her father was a Noongar man from the Riley family. Her mother was Eliza Parker ("Granny Liza"), a Noongar woman. Malcolm knew Granny Liza from when he visited the Merredin Reserve when he was young. He remembers that Granny Liza was an important leader in the Reserve, and that she carried a six-foot wooden staff.
Malcolm Champion grew up in Kalgoorlie until he was 16 years old. He then moved with his family to South Australia, although he travelled back to his "own country" regularly. As a young adult, Malcolm spent several years studying in different parts of Australia. He returned to Kalgoorlie in the 1990s, and then later moved to Perth, where he currently resides. Malcolm said that he always returned regularly to Kapurn country and continues to do so. He said that he returns to Kapurn country monthly to attend to family business and for funerals. Malcolm currently sits on the board of an organisation called Western Australia General Practice Education and Training, which helps to educate doctors on how to communicate with Aboriginal people.
Malcolm Champion explained that he is a Kapurn man through his father's side and a Mirning man through his mother's side. He remembers his father telling him that he was Kapurn. On his paternal grandmother's side, he is connected to the Ballardong and the Gnarla Karla Boodja (both of which are Noongar groups). Malcolm noted that he has multiple connections through each of his parents.
Malcolm Champion explained that his father told him that Pop Ted (Edward Champion) was the boss of the law at Coolgardie, alongside Pop Ted's brother, Jack Champion ("Granny Jack"). Malcolm recounted a story that Nana Elsie told him. Malcolm said that Pop Ted held the power of life and death. When Elsie took Pop Ted to Kellerberrin in Noongar country to meet her family (the Humphreys and the Yarrans), they asked her to take him back to his own country in Coolgardie. They were scared that they would face retribution if anything happened to Pop Ted while he was visiting. Malcolm noted that his parents and uncles had also told him this story.
Malcolm Champion said that Pop Ted was a small man, but Granny Jack was very tall. He was approximately seven feet tall and that his fist was twice the size of a normal man's. Malcolm said that Granny Jack would stand behind Pop Ted, to back him up.
Malcolm Champion also said that his Uncle Dick Donaldson and Uncle Kingy Donaldson were important elders along with Pop Ted and Granny Jack.
Malcolm Champion told a story about Pop Ted receiving message sticks from other tribes. He explained that runners from other tribes would come into Kalgoorlie and go straight to Pop Ted's house, where they would stand in the backyard. Pop Ted could not read English, but he could speak many languages, and could read the message sticks, which were etched. Pop Ted would go out to the runner, who would open the bag and pull out the sticks and pass them to him. Malcolm noted that the sticks would never be passed to anyone else. Pop Ted would then walk away, sit down and read the stick. He would put his markings on the same message stick, and it would be sent back to the runner, who would take it back to the people waiting on the outside of the eastern Kapurn boundary.
Malcolm Champion said he has never been through law but is now considered to be an elder for Kapurn people. This status was granted to him by his uncles when he was 62 years old. Malcolm noted that he is widely accepted as a senior elder in other areas that he has a connection to as well.

[458]

Darryl Trott was born in Esperance in 1964. His mother is Shirley Ann Trott (née Sambo) and his father was Martin Trott. He has seven siblings: Linda, Elaine, Thomas, Joanne, Billy, Troy and Martin.
Darryl Trott said that he is Kapurn because he is the eldest grandson of William Sambo and Linda Champion. Darryl said that his mother, Shirley, is the oldest living member of the Sambo family. Shirley is the elder sister of Elizabeth Sambo. Darryl said that his mother was born in Southern Cross and calls herself Kapurn. Darryl said that his children are Kapurn through him, although some of them also belong to other clans.
Darryl Trott's father was born at Mount Margaret Mission and was Wongai. Darryl said that his father passed away about 25 years ago. Darryl's father's father was William Trott, who was a Mirning man, and Darryl's father's mother was Elizabeth Lynch, a Wongai woman.
Darryl Trott lived in Esperance until he was in around the second grade. He then lived in Kalgoorlie for about a year, when he was sent to the Norseman Mission because his parents separated. Darryl said that all but two of his siblings were sent to the Norseman Mission. Darryl spent five or six years at the mission, which he left just before starting high school. He moved to Kalgoorlie to live with his mother and his siblings, and went to high school in Kalgoorlie. Darryl said that, while in Kalgoorlie, he sometimes lived with his grandmother, Linda Champion.
Darryl Trott said that, in about 1978 or 1979, he moved to South Australia with his family, where he completed his fourth year of high school in Port Lincoln. Straight after high school, Darryl worked at the meat works in Port Lincoln for about six months.
In 1988, Darryl Trott married Elizabeth Trott (née Johns), a Noongar woman. After they married, they went to live in Kalgoorlie where Darryl worked in various jobs, including as a truck driver. In 1989, Darryl was in Merredin, then he moved back to Kalgoorlie for 5 years, then to Esperance for 5 years, then back to Kalgoorlie for 10 years, and then relocated to Perth. Darryl has been living in Perth for around 15 years.
Darryl Trott and Elizabeth Trott have 6 children (Kristy, Peter, Alan, Sharon, Breeanna and Wesley) and 22 grandchildren. Darryl noted that three of his grandchildren lived with him and his wife from when they were very young.
Darryl said that he goes back to Kalgoorlie continuously for weddings, funerals and holidays and, since the commencement of the Marlinyu Ghoorlie proceeding, for Marlinyu Ghoorlie claim matters. He takes his grandchildren back to Kalgoorlie, where they go out into the bush to go camping and hunting.
Darryl Trott said that his maternal grandfather, William Sambo, was the main person who taught him when growing up. He said that William Sambo grew up in Southern Cross and was a shearer there and always lived out in the bush by himself. Darryl said that, in his later life, William Sambo lived at a place called Carbine, north of Kalgoorlie, in a shack on a station, and after that ended up living in Coolgardie. Darryl was in his late 30s when William Sambo died.
Darryl Trott recounted his experiences learning from William Sambo. William Sambo used to take him, his brothers and his cousins out bush frequently. William Sambo taught Darryl, his brothers and his cousins not to go to certain places because they had not been initiated. Darryl said that he knew that, if he went to those places, he would be punished by one of the old men who had been through the law. Darryl said that he had hunting spots that he kept going back to with William Sambo. He said that they would go out hunting "all the time", with a ute, guns and spotlights. They would shoot kangaroos and goats, and then clean them, cook them and eat them. Darryl said that William Sambo would share the meat out to whoever wanted it. Darryl said that he also learned to hunt from his Uncle Richard Sambo. Darryl recounted that he went hunting with Richard Sambo towards the Hampton Hill Station and out to Jaurdi flats near Coolgardie.

[470]

Leeroy Bilney was born in Port Lincoln in South Australia in 1983. His mother is Jacqueline Shep Bilney (née Champion), and his father is Malcolm David Bilney Snr.
Leeroy's mother was born in Kalgoorlie and is the eldest daughter of Malcolm Ben Champion, who was the son of Ted Champion and Elsie Nelson-Riley. Leeroy says that he is Kapurn through his maternal grandfather, Malcolm Ben Champion.
Leeroy's father is a Wirangu, Kokatha and Barngarla man.
Leeroy has six siblings, including an older brother and sister, both of whom were born in Kalgoorlie: Rosemary Joyce Edwards (née Bilney), born in Kalgoorlie in 1973; and Malcolm Oswald James Bilney Jnr, born in Kalgoorlie in 1975.
Leeroy said that, when he was about 11 years old, his family moved from Port Lincoln to the Tia Tuckia Aboriginal Community which is an Aboriginal homeland about 30 kilometres out of Ceduna. From when he was 15 or 16 years old, he lived with his maternal grandfather, Macolm Ben Champion (whom he called "Poppa"), and his maternal grandmother, Mary Constance Reynolds (whom he called "Nana") also at the Tia Tucker Aboriginal Community for a period of four years.
Leeroy Bilney stated that he frequently travelled to Kalgoorlie with his grandparents to attend funerals and family events. He said that, on those trips, his grandfather visited most, if not all, of his brothers and sisters who were in Kalgoorlie, and their children. He said that his grandfather used to talk about what Leeroy now understands to be Kapurn country each time they visited Kalgoorlie and other places through to Southern Cross.
When Leeroy was 19 years old, he moved to Perth to study at the Western Australian Academy of Performing Arts at Edith Cowan University. When he was 22, he moved from Perth to Sydney to study at NAISDA Dance College. He lived in Sydney for three years, working odd jobs, until he obtained a position as Administration Officer at the National Native Title Tribunal. In around 2008, he returned to Ceduna and has since lived there with his partner and four children.

[471]

The principal subject of Leeroy Bilney's evidence concerned a trip taken to Southern Cross by Leeroy when he was about 15 years old (about 1998) with his maternal grandparents, Malcolm Ben Champion and Mary Constance Reynolds, together with Reginald Yarran Snr, Glenys Yarran and Reginald Yarran Jnr. Leeroy recalled that they drove together in a bus and that the Yarrans were undertaking a cultural heritage site survey. The trip took place at a time when the Ballardong claim included the western part of the trial area including Southern Cross. Leeroy was uncertain of the precise purpose of the survey, but believed it concerned the creation of a new road.
Leeroy Bilney explained that he had lived for approximately one year with Reginald Yarran Snr, his wife Glenys Yarran, and their son Reginald Yarran Jnr, when Leeroy went to study in Perth. Leeroy said that his family and the Yarrans were very close, and that the connection between their two families arose through Leeroy's maternal great-grandmother (Malcolm Ben Champion's mother, Elsie Nelson Riley), who was a Ballardong woman.
Leeroy stated that, throughout the cultural heritage trip, both Reginald Yarran Snr and Glenys Yarran asked Leeroy's grandfather, Malcolm Ben Champion, lots of questions in relation to the area, including about particular sites, to which Malcolm Ben Champion initially responded. For example, the Yarrans asked his grandfather a question about where the "reserve/mission" at Southern Cross used to be located, having "read in a book" that it was located in a particular place. In cross-examination, Leeroy said that he could not recall which of Reginald Yarran Snr and Glenys Yarran asked about the location of the reserve or mission, but he recalled that it was Glenys Yarran who said that she had read about it in a book. Leeroy said that his grandfather corrected them, saying that he knew where the reserve was because he used to live there, and took the group, including Leeroy, to the site, where Leeroy recalled seeing the remnants of old tin bathtubs and other things which indicated that people used to live there. Leeroy also gave evidence that his grandfather identified burial grounds and ceremony places in the area around the site being surveyed in response to questions from Reginald Yarran Snr and Glenys Yarran.
Leeroy Bilney stated that he remembered thinking at the time that his grandfather "knew so much" about the Southern Cross area, and the country's history, whereas by contrast Reginald Yarran Snr did not know "much at all". Leeroy further stated that, from the way his grandfather behaved during the trip, he (Leeroy) formed the impression that his grandfather was "happy to be in his country" and to share information about it.
Mr Bilney said that, during the trip, his grandmother said something to his grandfather in language that only they could speak, after which his grandfather began to respond differently to the questions being asked by the Yarrans. Leeroy said that while his grandfather continued to answer the questions being asked by the Yarrans, he gave vague answers and did not go into much detail. Leeroy said that he interpreted this as meaning that some information was not meant to be shared.
Each of Reg Yarran Jnr and Glenys Yarran gave evidence about the cultural heritage survey trip. Their evidence differed from Mr Bilney's account in two principal respects.
First, Glenys Yarran said, on the trip, she did not as ask questions of Malcolm Ben Champion because it would have been culturally inappropriate for her to have questioned men about country to which she had no connection. As noted above, in cross-examination Leeroy Bilney acknowledged that he could not be certain that Glenys Yarran asked questions of his grandfather, but he did remember that one or other of Reginald Yarran Snr, Glenys Yarran and Reginald Yarran Jnr asked the questions to which his grandfather responded.
Second, Reg Yarran Jnr said that the trip was conducted in the presence of an anthropologist, and that it was the anthropologist who asked the questions of both Malcolm Ben Champion and Reg Yarran Snr. In cross-examination, Mr Bilney disagreed with that account. He was firm in his recollection that the Yarrans questioned his grandfather about the location of significant sites.
I consider that the evidence given by Leeroy Bilney is generally reliable. Leeroy made appropriate concessions in cross-examination. He accepted in cross-examination that he was young when the trip occurred and that his recollection of the trip was unclear in certain respects. For example, he was not aware of the precise purpose of the survey being undertaken or the particular sites being surveyed. However, he was clear about the events referred to in his evidence. The evidence given by Glenys Yarran, that she did not personally question Malcolm Champion, did not materially undermine Mr Bilney's evidence that the Yarrans were seeking information from Malcolm Ben Champion about the Southern Cross area. As discussed below, I consider that Reg Yarran Jnr was generally an unreliable witness, and I place no weight on his evidence unless it is corroborated by a reliable source.

[472]

Sean Williamson is Pitjantjatjara, and his first language is the Pitjantjatjara language. Mr Williamson made a statement dated 18 July 2023. However, the statement was not tendered in evidence. Rather, Mr Williamson's evidence was led orally at the Kalgoorlie Town Hall on 3 October 2023 with the assistance of a Pitjantjatjara interpreter, and he was cross-examined.
In his examination-in-chief, parts of Mr Williamson's statement were read to him, and he was asked to indicate whether he agreed or disagreed with the relevant part. Mr Williamson's statement was marked for identification solely to assist in understanding his oral testimony. The process of giving evidence with the aid of an interpreter was not always straightforward. In general, questions were asked of Mr Williamson in English and translated into Pitjantjatjara. At times, Mr Williamson answered directly in English and, at other times, he responded in Pitjantjatjara and his response was translated into English. It was apparent that the interpreter sought to assist Mr Williamson and the Court as best she could. Nonetheless, I gained the impression that, on some occasions, there was confusion as to the questions asked of, and the answers given by, Mr Williamson. I do not doubt that Mr Williamson was an honest witness. However, I have treated aspects of his evidence with caution having regard to the difficulties in translation encountered during his testimony.
There was also some ambiguity with respect to the spelling of Mr Williamson's first name and his use of an alternative name. The name 'Shaun Williamson' was typed on his statement, but the statement appeared to be signed 'Sean Williams'. The annexure to the statement appeared to be signed 'Shaun Williams'. During cross-examination, Mr Williamson said that the true spelling for his name is 'Sean'. However, he also said that he has two names, the other name being Bruce Williams. In light of Mr Williamson's evidence, these reasons use the name "Sean Williamson".

[474]

Mr Williamson gave evidence about Malcolm Ben Champion, whom Mr Williamson referred to as "Ben Champion". Mr Williamson said that he knew Ben Champion very well. They travelled together to many places, including for law business, to Wiluna, Warburton, into APY land and elsewhere in South Australia.
Mr Williamson said that Ben Champion had told him that he (Ben Champion) was a Kapurn man. Mr Williamson said that Ben Champion's country was in Southern Cross. When asked whether Ben Champion's country was also in Kalgoorlie, Mr Williamson agreed, saying "yes, must be".
Mr Williamson also said that Ben Champion was very well known among the law men in Warburton and Laverton, including an individual called Albert Fox who became one of the law bosses for Warburton. Mr Fox was raised by Ben Champion's father and grew up in Kapurn country (being Kalgoorlie and Coolgardie), before moving back to Warburton. Mr Williamson said he was told this by Mr Fox.
Mr Williamson was shown a copy of his statement which contains a photograph of an Aboriginal man and woman. While Mr Williamson's statement identifies the man in the photograph as (Malcolm) Ben Champion, Mr Williamson identified the man as (Malcolm) Ben Champion's older brother (although he could not remember his first name). When asked about why his statement said that the man in the photograph was (Malcolm) Ben Champion, Mr Williamson said that someone else (other than him) must have incorrectly written the name.
The man in the photograph had a bare chest which had markings. In cross-examination, Mr Williamson said that the markings indicated that the man in the photograph had been initiated, and said that the markings were from "his [the man's] country here". When asked to clarify the country to which Mr Williamson was referring, he explained that it was "Coolgardie way" and that it included Kalgoorlie and Southern Cross. Mr Williamson made clear that these places are not his own country. Mr Williamson agreed that Kapurn law is different to the law of his country, but said that the laws "come together". I understood Mr Williamson to be referring to ceremonies being conducted under both laws.

[485]

In addition to the lay witness evidence described in the preceding sections, evidence was also received of statements made and information provided by forebears of the Marlinyu Ghoorlie claimants who were deceased at the time of trial. There were four principal sources for that evidence.
First, anthropologist Norman Tindale visited Kalgoorlie in 1966 and interviewed Don Roundhead, whom he had first met in 1939 at Southern Cross, and his wife Noona (also spelled Nuna) who belonged to a Western Desert group. Tindale tape-recorded a large portion of this interview, which was transcribed by L Barwick in 1999. A copy of the transcribed interview was adduced in evidence as an annexure to Nell Taylor's first report.
Second, anthropologist Stuart Fisher conducted a series of video-recorded interviews in 1992 with forebears of the Marlinyu Ghoorlie claimants in the Kalgoorlie, Coolgardie and Merredin areas. The interviewees included Phil Donaldson, Clem Donaldson, William (Bill) Sambo and George Wilson, all of whom are deceased. Transcriptions of parts of the interviews were tendered in evidence. Transcriptions of other parts were included in Ms Taylor's first report.
Third, Dr Fiona Powell conducted anthropological research and fieldwork between 1997-2000 in Western Australia's Goldfields region with Aboriginal people asserting native title rights and interests in the trial area. During her fieldwork, Dr Powell recorded information from forebears of the Marlinyu Ghoorlie claimants who were deceased at the time of trial. Dr Powell gave evidence during the trial concerning the information she had recorded.
Fourth, Linda Champion (who died in 2011) swore three affidavits in the earlier Central West Goldfields native title claim, and gave oral testimony in the proceeding at a preservation evidence hearing in 2006. Those affidavits and the transcript of the oral testimony were tendered in evidence. Linda Champion was Brian Champion Snr's older sister and was the mother of respondent Elizabeth Sambo.

[486]

Don Roundhead appears on Tindale's genealogy sheet 73 recorded at Moore River on 26 April 1939 and revised at Southern Cross on 6 May 1939, and on Tindale's genealogy sheet 117 recorded at Southern Cross on 6 May 1939. The genealogy sheets record that Don was 23 years old (and therefore born in 1916). Don's mother is identified as Eva (with the notation "fb Ka:lamai") and his father is identified as Tom Roundhead (with the notation "fb"). The notation "fb" is an abbreviation for "full blood". The Marlinyu Ghoorlie claimants contend that Tom Roundhead's father is Nyuumani, also known as King Billy, who in turn is the son of apical ancestors Warada and Kaddee. That contention is considered later in these reasons, where the contention is accepted. Tindale's genealogy sheet 73 notes that Tom Roundhead died when Don was a young boy. Later in the reasons, it is accepted that Don was brought up by Tom's younger brother, Frank Roundhead (whose Aboriginal name was Nyumarn). Don died in 1982, aged 65, in Kalgoorlie. His death certificate lists his place of birth as Coolgardie.
Don's wife Noona also appears on Tindale's genealogy sheet 73 recorded at Moore River on 26 April 1939 and revised at Southern Cross on 6 May 1939 where she is recorded as born in Laverton, and on Tindale's genealogy sheet 156 recorded at Mount Margaret on 13 May 1939 where her Aboriginal name is given as Danin and her tribal name is given as Tjalkadjara. Noona died in 1971, aged 63.
Native welfare records from 1937 track Don and Noona's movements across the trial area. In 1937, Don (aged 21) and Noona (aged 31) were in the western extents of the trial area at Mukinbudin on the property of George Clamp. In 1938, Don was reported at Southern Cross and Bullfinch (on a fencing contract), then in Badjaling and again in Southern Cross. In 1939, Don was at Clarkson's Mount Jackson Station and the Aboriginal Reserve in Southern Cross. In 1940, Don was on the Coolgardie Native Reserve, then again in Southern Cross. By 1941, Don and Noona were at Nungarin and Dandanning camps on the western extents of the trial area. Don was in Southern Cross again in 1943 and the following year he was employed on Credo Station in the eastern part of the trial area.
As noted above, Tindale visited Kalgoorlie in 1966 and interviewed Don Roundhead and his wife Noona. The entire transcript of the interview was annexed to Ms Taylor's report. Both Ms Taylor and Mr Wood extracted substantial sections of the transcript in their anthropological reports. The interview is significant evidence, having regard to the date that it was recorded. The following extracts contain information relevant to the proceeding. The speakers are indicated by their initials: NBT (Norman B Tindale); DR (Don Roundhead); and NR (Noona Roundhead).
In the first extract, Don Roundhead identifies his language as Kapurn:

[489]

NBT: ... I'll ask you some questions another way. Have you ever heard of people they call Kalaamay, Kalaamay

DR: Karlamaya

NBT: Kalamaya. Kalamaya

DR: Karla, Karlamaya, yes

NBT: what do you know about the Kalamaya?

DR: Karlamaya, Karlamaya. That's belong to the early days at Coolgardie to Kalgoorlie and our generations of old grandfather word. They call em Karlamaya, that's their old lingo.

NBT: That's their old lingo

DR: old grandfather's, father's run, they call em Karlamaya.

NBT: Karlamaya

DR: that's in the good old early days

NBT: was it, ahh.

DR: I can still remember

NBT: you can still remember

DR: I can still remember

NBT: ah that's very interesting. A very old man told me about that a long time ago, when you were a boy. And he called it Kalaamay, and you've got Kalamaya, thats the same word.

DR: hmm

NBT: that's very helpful. That's the old Kalgoorlie name.

DR: that the old Kalgoorlie, Coolgardie,

NBT: Coolgardie

DR: Norseman,

NBT: Norseman

DR: Southern Cross

NBT: mmm. All right. Well then have you ever heard ... Mrs ah, Mrs Ramhead [sic], we were just talking about the word 'Kalaamay', Kalamaya. You ever hear that word?

NR: yeah, this one here [ie her husband DR]

NBT: ahh

NR: Karlamaya

NBT: Kalamaya

NR: yeah that's his lingo

NBT: that's his real lingo

NR: yeah

NBT: he says that's a very old word from his grandfather

NR: yeah.

NBT: All right well I'll tell you some other words that other people have told me at different times and I want to know what they mean. Ah Kalaako

NR: Karlaku

NBT: Kalako. Have you ever heard of the word Kalaku?

NR: well that's him [ie her husband DR]

NBT: he's a Kalaaku

NR: yeah he's a Karlaku. That's mean he call em Karlamaya.

NBT: kalaaku ... [are kive?]

NR: yeah, karla

NBT: and what's kala mean, one word

NR: waru

NBT: kala means waru, fire

NR: fire

NBT: Ahh. Why do they call you a Kalamaya or a Kalaaku?

DR: different words we say, different word from the other fella, that why they call us karlaku

NBT: ahhh because you say different word

DR: yes

...

NBT: Ngadju, Ngadju. And supposing we have to put a boundary between the Kalaaku side and the Ngadjunma side, where would the boundary run?

DR: ahh Widgiemooltha. Widgiemooltha.

[507]

Linda Champion was born in 1923 in Kellerberrin and died in 2011. Linda Champion's father was Ted Champion (born 1898 in Wilgoyne and died in 1968 in Coolgardie). Ted Champion's mother was Marlinyu Ghoorlie apical ancestor Kajjaman (Nellie Champion) (born 1860 and died in 1929 in Moore River).
Dr Powell gave evidence that, during her fieldwork in 1997-2000, she interviewed Linda Champion. Linda Champion referred to herself as a Kapurn person. She told Dr Powell that she had always known she was a Kapurn person since childhood and that she had passed her knowledge about her Kapurn identity to her children. She said to Dr Powell: "All my people are Gubrun people. Old people told me and my people we are Kaparn, Gubun". Dr Powell travelled with Linda Champion and Cadley Sambo (William Sambo's brother) to the Southern Cross / Mukinbudin part of their traditional country, so that they could show Dr Powell places there that were important to them and their old people. Dr Powell expressed the opinion that neither of those elders would have taken her there and shown her those places if they thought that by doing so they would be trespassing in someone else's country.
Linda Champion also swore three affidavits in the Central West Goldfields claim. The first was dated 27 April 1999 (and was annexed to an affidavit made by Simon Blackshield, the solicitor for the Marlinyu Ghoorlie applicant, made on 23 February 2023). The second was dated 2 October 2002. The third was dated 23 March 2006 and prepared in advance of Linda Champion giving oral testimony by way of preservation evidence in the Central West Goldfields proceeding in Kalgoorlie on 24 July 2006. Linda Champion was 84 years old at the time of making her 2006 affidavit and giving oral testimony in Kalgoorlie. The three affidavits and the transcript of her oral testimony were tendered as evidence in this proceeding. The contents of her 2006 affidavit are materially the same as her 2002 affidavit, but expressed in a slightly shorter form, and largely incorporate the contents of her 1999 affidavit. Her oral testimony was consistent with the contents of her affidavits. What follows is a summary of her evidence, drawn principally from her 2002 affidavit, but supplemented where necessary by her 2006 affidavit and her oral testimony.
Linda Champion was born on 8 March 1923 at Kellerberrin "in the bush". Linda's mother was Elsie Nelson. Elsie was born at Kumminin (near Merredin) and was a "Bibulman" person. Linda's father was Ted Champion. He was born at Wilgoyne, near Mukinbudin. Linda believed that he was born before 1900, because she was told that he was around 25 when she was born. He was some years older than his brother Jack, who was born in 1901. Ted Champion died in Kalgoorlie about 1968. Linda Champion described him as a Kapurn man.
Ted and Jack Champion grew up in the country between Mukinbudin and Coolgardie. They grew up in the camps of Kapurn people who were living in the bush and in the fringe camps. They were working for "white farmers who had come into their country". The "Welfare" caught Jack and sent him to Moore River (which was also known as Mogumber). He ran away when he got bigger. They never caught Ted because he was very cunning. Welfare only took the fairer kids, so the old people used to paint the kids black with Sandalwood nut (they would burn the nuts in the fire first).
Ted Champion's mother's name was Nellie. Linda Champion was told by her father and other old people that Nellie came from the Mount Jackson / Southern Cross area. Linda Champion did not know the year when Nellie was born but thought it must have been around the 1870s. Nellie was a Kapurn woman. Her "run" was Coolgardie, Southern Cross to Mukinbudin (being the area where she travelled up and down). Nellie was sent away to Mogumber. She ran away and the police caught her near Southern Cross. They sent her back and she died at Mogumber in 1925. She is buried there. Linda Champion never saw her.
Ted Champion's father was Jim Champion. He was from the Shark Bay area. He was sent from Shark Bay to Fremantle Gaol or Rottnest Island, then sent out to Southern Cross as a police tracker. He was over 70 when he died (when Linda Champion was in her 20s). He is buried in Southern Cross.
Linda Champion was the second of her parents' 11 children. Her eldest two sisters, Elaine and Kathleen, were born at Kellerberrin. Kathleen is buried in Kalgoorlie. Her brother Neil was born in Ardath, on the Bruce Rock to Narrogin line, and is buried in Kalgoorlie. Her brother David was born at Walgoolan, near Merredin, and is buried in Kalgoorlie. Her brother Malcolm, who is also known as Ben, was born at Babakin. Her sisters Gertie and Greta were born in Southern Cross. Her brother Brian Champion Snr was born in Kwolyin. Her brother Tim was born at Bruce Rock and her other brother, Robert, was born in Merredin. Her mother and father adopted Dianne Tucker when she was a baby. Her mother also had another child, Betty, who died when she was very young. Gertie, Brian and Ben were put into Norseman Mission. Her mother put them in the mission because "the Welfare were grabbing kids and sending them to Moore River Settlement". Her mother thought it was better that they went to Norseman, because it is closer to "our country".
Linda Champion had seven children. Dennis, William, Shirley and Davina were born in Southern Cross. Gary and Elizabeth were born in Merredin and Desley was born in Kalgoorlie. Linda Champion also "reared up" her sister's son, Timothy, after her sister died.
Linda Champion spent the early years of her life at Barbakin, which is in her mother's country and where her mother's family lived. Her father was working on a farm there. The family camped at Barbakin with her mother's parents. Her father and grandfather worked together on labouring jobs like shearing and clearing country. They had no house and camped in the bush in tents made from chaff bags. Linda went to school in Barbakin. When Linda's father finished working around Barbakin, the family shifted to Bruce Rock, where Linda's brother Tim was born. Then, when Linda was about nine years old, the family came back to Southern Cross where Linda finished off her schooling. The family stayed on the Aboriginal reserve there. Linda deposed:

[530]

Although Elizabeth Sambo is a respondent to the Marlinyu Ghoorlie claim, by the time of closing submissions she no longer contested the Marlinyu Ghoorlie claim. It is therefore convenient to address the lay witness evidence given by and on behalf of Elizabeth Sambo at this point.
Elizabeth Sambo gave evidence and called four other witnesses to give evidence: Gary Sambo, Lillian Bonney, Davina Mary Sambo and Trevor Henry Donaldson. Gary Sambo gave evidence at the preservation evidence hearing in February 2023. As noted earlier, Gary Sambo has since died. Elizabeth Sambo and the other three witnesses gave evidence during the lay evidence hearing. The evidence of each of those witnesses is considered in this section of the reasons.
As noted earlier, prior to the commencement of the trial, Elizabeth Sambo contested two principal aspects of the Marlinyu Ghoorlie claim. First, Elizabeth Sambo did not accept that Nellie Champion, and the members of the Champion family that are her descendants (including Elizabeth Sambo's mother, Linda Champion), were Kapurn people. She contended that they were Ballardong (Noongar) people. Second, Elizabeth Sambo did not accept that Kapurn country extended west from Southern Cross. She contended that the country west of Southern Cross was Ballardong country.
As also noted earlier, by the time of closing submissions at trial, Elizabeth Sambo had withdrawn the above contentions. She accepted that the evidence established that Nellie Champion, and the members of the Champion family that are her descendants (including Elizabeth Sambo's mother, Linda Champion), were Kapurn people. She also accepted that Kapurn country extended west from Southern Cross.
As discussed below, the oral testimony given by Elizabeth Sambo was consistent with the position she adopted in closing submissions. However, the written and oral evidence given by the other witnesses called on behalf of Elizabeth was largely consistent with the original position adopted by Elizabeth Sambo in the proceeding. That evidence is recorded below. Nevertheless, it is convenient to record at this point that, having regard to the weight of the lay witness evidence overall and the expert anthropological evidence discussed in these reasons, I do not accept the lay evidence given on behalf of Elizabeth Sambo to the extent it expresses the opinion that Nellie Champion and her descendants were not Kapurn and that Kapurn country does not extend west of Southern Cross.

[532]

Elizabeth Sambo was born on 8 June 1949 in the bush at Merredin Reserve. Her parents were Linda Champion and William Sambo.
Elizabeth Sambo's siblings are Dennis (deceased), Maxwell (deceased), Shirley Trott (née Sambo), Edward Sambo (known as Gary Sambo and who gave preservation evidence, now deceased), Davina Sambo, and Desley Richards (née Sambo). Elizabeth Sambo said that her mother also reared up Timothy Jackson who was her nephew (the son of her mother's sister, Kathleen). In their evidence, Gary and Davina Sambo said that Timothy was raised in their family with the name Saul Sambo.
Elizabeth Sambo's father, William Sambo, had five siblings: Rita, Willie, Arthur, Cadley and Bert. Elizabeth said that her father grew up in and around Coolgardie and then went to Southern Cross for work at an early age. While in Southern Cross, he met Elizabeth's mother, Linda Champion, who attended Southern Cross school along with her sister Kathleen.
Elizabth Sambo's paternal grandparents were Cordi Sambo and Lucy (Tarda) Sambo, also known as Jumbo.
Elizabeth Sambo said that Cordi Sambo did not speak the Kapurn language because he came from the top end of Western Australia. He was sent to the Kalgoorlie area to work with the police from Rottnest Island as a tracker, and ended up staying. Elizabeth said that, before coming to Kalgoorlie, he had a family at Nullagine (in the Pilbara). Elizabeth tendered a photograph which she said featured Cordi. The photograph shows five European men standing in a row wearing suits, hats and ties. In front of them is an Aboriginal man with two young Aboriginal children. The caption to the photograph states, "Messrs. D. F. Fleming, W. Hamilton, A. Walsh, E. Browne and D. Browne, with Sambo, a tracker, and two of his sons." Elizabeth said that the photograph appeared in an old Kalgoorlie newspaper. Elizabeth identified the Aboriginal man as her grandfather, Cordi Sambo, and the two Aboriginal boys as her uncles, Cadley and Arthur Sambo.
Elizabeth Sambo said that Lucy Sambo's father (Elizabeth's great grandfather) was Broad Arrow Tommy, also called Udaji. Elizabeth said that, in the early 1900s, Broad Arrow Tommy used to live in the old lock-up at the back of the police station in Coolgardie. Elizabeth's father told her that, when he was young, his family used to camp there with Broad Arrow Tommy. Elizabeth stated her belief that Broad Arrow Tommy, and his daughter Lucy, were Kapurn people, and that she is Kapurn herself by descent from them.
Although it is a minor matter, there is reason to doubt that the name of Lucy Sambo's father was Udaji. As noted earlier, in an interview conducted with Stuart Fisher in 1992, Elizabeth Sambo's father, William Sambo, agreed with Clem Donaldson that the name of Lucy Sambo's father was Muradi (not Udaji), but "whitefellas" called him Broad Arrow Tommy.
In oral testimony, Elizabeth Sambo referred to a photograph annexed to the affidavit of Gary Cooper which depicted three Aboriginal women and a European man in a suit. In his affidavit, Gary identified the Aboriginal woman on the left of the photograph as his great-grandmother, Nada Bilbear. Elizabeth said that Gary was mistaken, and that the woman was her grandmother Lucy Sambo. Elizabeth said that she was told that by her father and her Uncle Cadley Sambo. For the reasons discussed below in connection with Gary Cooper's evidence, I conclude that both Gary Cooper and Elizabeth Sambo are mistaken with respect to the people shown in the photograph. Dr Powell gave evidence that the same photograph appears in a book titled The Fields: Images of the Kalgoorlie Goldfields, 1890-1910 compiled by Ian Templeman and Bernadette McDonald and published by Fremantle Arts Centre Press in 1988. The book identifies the photographer as J J Dwyer and states that the photograph is of "Mr Hawkins and Aboriginal women outside the women's house, Kalgoorlie, c. 1900". In cross-examination, Elizabeth Sambo agreed that, if the photograph was taken around 1900, it could not depict Lucy Sambo because Lucy would have been about six years old at that time (having been born in around 1894).
Elizabeth Sambo's maternal grandparents were Edward (Ted) Champion and Elsie Champion (née Nelson). Ted Champion's mother was Nellie Champion. Aspects of Elizabeth Sambo's written evidence suggested that she did not recognise her mother, Linda Champion, as a Kapurn person. As noted above, Elizabeth said that she (Elizabeth) is Kapurn through descent from her father and his mother. She also said that "most of my identity comes from my father's side because this is where we have been the best part of our lives". Despite that, in cross-examination, Elizabeth Sambo agreed that her mother was a Kapurn person.
Elizabeth Sambo grew up on sheep stations within or close to the trial area. Elizabeth's father and brothers were shearers and musterers for several stations including Mungari, Carbine, Woolibar, Hampton, Bulong, Mount Monger and Credo. Elizabeth also remembers staying at other stations including Yindi, Remlap, Mollerin and Mouroubra.
Elizabeth Sambo started her schooling just outside of Southern Cross when she was about six years old, as her family was staying at a farm in the vicinity called Dandivan. After living on the farm, Elizabeth's family moved to live on the Aboriginal reserve in Southern Cross. Elizabeth recounted that her father built a small camp out of tins he gathered from the farmers, which were cut and flattened into a sheet of tin, and nailed to wood. The tin was fashioned from empty fuel drums collected from farmers. Elizabeth described the house: "It was not big and roomy, but it kept the rain off of us and the cold out; it was no palace but it was home and we were happy".
When Elizabeth Sambo was about nine years old, her father brought the family back to Coolgardie (where he was born and had grown up), to live and work at Mungari Station. Elizabeth's father built a shed on Mungari Station out of old gum trees, which he had cut down, tied together with wire, and put tin over the branches.
Elizabeth Sambo said that the Donaldson family stayed with them at some of the stations, especially at Credo Station. Elizabeth's father told her that, when he was growing up, he used to stay with Uncle Bob Donaldson, Uncle Kingy (Clem Donaldson), Uncle Phil Donaldson and Uncle Henry Donaldson.
Elizabeth Sambo explained what life was like growing up on sheep stations in the area:

[543]

Elizabeth Sambo explained that there were many corroborees at Coolgardie and in Southern Cross. She recounted going to a corroboree when she was about 9 or 10 years old. She remembers that she was not allowed to see what was happening or take part in it, because everything was sacred. She was only permitted to listen and was covered in bags and blankets, so slept through the ceremony.
Elizabeth Sambo said that she was told by her father, William Sambo, and Uncle Cadley Sambo, that their mother, Lucy Sambo, and her eldest sister, Muminga, were the law women for the area of Coolgardie, East Coolgardie and Kalgoorlie.
Elizabeth Sambo said that her uncles, Willie Sambo and Phil Donaldson, were taken from Coolgardie at the same time to become watis (law men). Elizabeth said there was a big corroboree on the old ground leading out to Victoria Rock Road. Uncle Willie Sambo and Uncle Phil Donaldson went out together, one for each Kapurn family, and returned at the same time. Elizabeth noted that Uncle Phil Donaldson and Uncle Willie Sambo were separated when they went through law, each going in separate directions through the bush, possibly out to Alice Springs. Elizabeth was not told what they were doing while they were away and does not know who the people were that took them. Uncle Willie Sambo and Uncle Phil Donaldson were "welcomed back by their tribe with a corroboree".
Elizabeth Sambo gave evidence about "special men" who moved through the country, and came to take young boys out to go through the law. She said that these men were not Kapurn, because Kapurn people do not practise "the law" anymore (by which Elizabeth meant male initiation ceremonies). Elizabeth recounted that once, when she was at Yindi Station, her father and Uncle Cadley Sambo knew there were "special men" in the area because people would send messages to them. Elizabeth's father and Uncle Cadley Sambo made sure that the boys were close to the homestead because they did not want any of the boys to be taken. They put food in a special place for the men. Elizabeth said that you could hear the "special men" moving through the country. She said that you could hear the birds calling out at night, which was very strange. The "special men" came around the time coming into Christmas, which they called collection time, because it is when they would "grab the young fellas and take them bush".
In relation to sacred sites, Elizabeth Sambo said that, as a child, she was told where she was and was not allowed to go. She recounted that numerous times she went with her parents to take Uncle Phil Donaldson to visit sacred sites, where he checked that they were not damaged. Elizabeth and her family stayed in the car. Elizabeth's father and Uncle Cadley Sambo knew where many of the sacred sites were because of this, but they could not go to them because they had not been through the law. Nonetheless, they made sure that Elizabeth and her siblings knew where they were located. Elizabeth said that Uncle Phil Donaldson often asked people to drive him out to sacred sites to check on them because he did not have a car. He got "panicky" when he heard that mining leases were being granted over particular areas where sacred sites were located. Elizabeth Sambo said that many of the sacred sites are on the south side of Kapurn country, between Coolgardie and Gibraltar.
Elizabeth Sambo said that one place that she knows people cannot access is the old cemetery in the sandplains behind Coolgardie Hospital. Uncle Phil Donaldson took her and her family there in around 1999 or 2000 to show them where it was to make sure they protected it from being mined for sand. Elizabeth Sambo said that the "Sites Department" had talked about wanting to fence the area and asked Elizabeth Sambo's father and Uncle Phil Donaldson how many people were buried there. They said it was over 200 people.
In relation to decision-making processes, Elizabeth Sambo said that the older people always made decisions about Kapurn business by calling a meeting and making the decisions jointly, because this was the traditional way of making decisions. Uncle Cadley Sambo told Elizabeth Sambo about a meeting place in Kalgoorlie, where the Kapurn tribe came together to discuss important issues such as when people were fighting or when people wanted to get married. He told her that they stayed there to talk it out. Even where the discussions became heated and people were threatening each other, the elders stayed there until the business was sorted out, because that was part of the Kapurn law that they followed. Elizabeth said that the meeting place is now the sports oval in Hannan Street, Kalgoorlie, so it cannot be used as a meeting place anymore. Elizabeth said that Kapurn people still try to make decisions about family business today in the same way. When Uncle Cadley Sambo was alive, family business meetings occurred at his place.
Elizabeth Sambo's father, William Sambo, and Uncle Cadley Sambo taught Elizabeth about "rules on Country". Elizabeth Sambo said that they told her about a practice that occurred when the people from "Spinifex Country" came into Kapurn country. When they came to Lake Perkolilli, near Kanowa, they made a fire and waited on that side of the lake until someone from the Kapurn side saw the fire and came to ask them why they were coming to town. Elizabeth said this was to make sure they were not coming in to stir up trouble or start warfare.
Elizabeth Sambo's father told her that Kapurn people used to bury people by first leaving them in the fork of a tree to deteriorate. The bodies were then crushed up so they could be buried in a small area.
Elizabeth Sambo also gave evidence about the billarng, which is a squeaker bird or a currawong. She said that when they make a noise, they make a "big racket". Elizabeth's father told her to hunt them away if they were around. They were much bigger birds during the Dreamtime and they used to take children away.
In relation to marriage, Elizabeth Sambo said that it was an important cultural rule that people were not to marry their own bloodline. This was determined by the family, who knew who someone was related to and their genealogy, and would then decide whether two people were too close to marry. Elizabeth said it was permissible for a Kapurn person to marry another Kapurn person, so long as they were not in the same bloodline.
In relation to spirits in the country, Elizabeth Sambo said that her father told her that if anything bad was happening out on country, you should build a fire because spirits cannot pass through smoke. Elizabeth recounted a story from when she was younger that involved spirits:

[549]

Elizabeth Sambo also used to go hunting with her father, her brother, and Richard Sambo, her cousin. They hunted for tjilkamarta (porcupine in the Kapurn language), emu, turkeys, goanna, and bardis. She said that it was important that you only took what you need.
Elizabeth Sambo said that she still collects sandalwood and other wood to make artefacts like clapping sticks and digging sticks.
Elizabeth Sambo said that she survives on bush tucker, primarily kangaroo tails and kangaroo meat. She said that her son goes out and gets meat for her. Elizabeth Sambo does not like takeaway food, or food from the grocers and butcher, so prefers to go "out bush and have a big feed".
Elizabeth Sambo also makes bush medicine, including creams and medicines to drink. Elizabeth uses the bunyung (possibly spelled bunyaan, as referred to in the evidence below) tree for the drinking medicine, and a stronger tree for making creams. Elizabeth said that her back veranda is set up so that she can make the medicines. Elizabeth said that she does not sell the medicine, but gives it to people. She also likes to teach the children in her family how to make medicine.
Elizabeth said she makes a lot of quandong jam, and keeps some in the freezer in case it is not a good season coming up.
Elizabeth said that she uses medicines and food from all over Kapurn country. She travels around Kapurn country with the children in the car to get quandong, kulgulas, or whatever she needs. She also cooks kangaroo tails while out in the bush.
While giving evidence at Warden Finnerty's house, Elizabeth Sambo provided examples of the food and medicines that she had gathered from the bush, including kulgula, quandong, and particular bushes that are used for medicinal purposes. She also provided an example of a cream made from the bunyaan tree and of drinking medicines.
Elizabeth Sambo said that she often makes bush tucker for her family, including cooking meat and making damper. She said she is the main damper maker in the family. She explained that she made damper from flour made from bugudu seeds, which grow around rock holes. Elizabeth's father taught her how to collect the seeds and make flour out of them. Elizabeth provided an example of the bugudu seeds while giving evidence at Warden Finnerty's residence.

[552]

Gary Sambo was born in 1947 at Merredin. He was raised mainly in Kalgoorlie and Coolgardie.
Gary Sambo's father was William Sambo and his mother was Linda Champion. Gary is survived by his siblings Elizabeth, Shirley, Davina, Desley and Saul. As at the date of his statement, two of Gary's brothers, Dennis and Bill, were deceased. Gary said that Saul's biological mother was Kathleen Champion, the sister of Gary's mother, Linda Champion. Saul's father was Shep Dimer, a Ngadju man. Kathleen Champion died from asthma when Saul was a baby, after which Linda Champion raised him. Saul was born as Tim Champion, but was raised as Saul Sambo.
Gary Sambo said that his father, William Sambo, was brought up in Coolgardie, "in the bush". William Sambo's mother was Lucy Sambo, whom Gary described as a Kapurn woman. Gary said that his grandmother, Lucy, was born in Kalgoorlie. Gary said that Lucy's father was named Udaji. Gary said that he did not know much about Udaji or the authority he had. Lucy's husband was Cordi Sambo, who was from Nullagine in the Pilbara.
As noted above in the context of Elizabeth Sambo's evidence, there is reason to believe that the name of Lucy Sambo's father was Muradi rather than Udaji.
Gary Sambo said that his father, William Sambo, was "reared up" by Charlie Knowle (whom Gary called "Granny Shep"). As discussed elsewhere, Charlie Knowle's family name was also spelled Nowa, Now and Gnow (and he was also referred to as Charlie Shepherd and Charlie Maddcok). Gary said that Granny Shep was a Kapurn man. Granny Shep was married to William Sambo's aunt Mary (Lucy Sambo's sister). In his written evidence, Gary said that Granny Shep lived out at the camp at the Coolgardie Reserve (which was a water reserve at which Aboriginal people camped and lived). Gary said that, in his school days, he met up with Granny Shep and other "old people from the Reserve" down at the shops. However, during oral testimony, Gary said that Granny Shep and Cordi Sambo lived at the back of his family house in Coolgardie. The inconsistency in the evidence was not explained.
Gary Sambo said that his mother, Linda Champion, was born in Kellerberrin and raised at Badjaling Mission near Merredin. Linda's parents were Ted Champion and Elsie Nelson. Gary said that Elsie's stepfather, Old Bill Nelson, was a Noongar man. Elsie's biological father, George Riley, was also a Noongar man. Gary said that Ted Champion's parents were Jimmy Champion and Nellie Champion. He said that he was told that Nellie was from Wilgoyne near Mukinbudin and that Jimmy was from Champion's Bay near Geraldton. He said that he did not believe that either Nellie Champion or Jimmy Champion were Kapurn. In respect of Nellie Champion, Gary's evidence is inconsistent with the evidence given by his mother, Linda Champion, in the Central West Goldfields proceeding, as set out earlier in these reasons. It is also inconsistent with the oral testimony given by his sister, Elizabeth Sambo. Having regard to the weight of the lay witness evidence and the expert anthropological evidence discussed later in these reasons, I consider that Nellie Champion and her daughter Linda Champion were Kapurn people and I do not accept Gary Sambo's evidence on that issue.
Gary Sambo said that his father's brother, Cadley Sambo, married his mother's sister, Gertie Champion.
Gary Sambo said that his father worked all across Kapurn country, catching wild horses, breaking them in and selling them. His father built yards all around the area between Coolgardie and Southern Cross. His father took Gary and his older brothers along with him when he was living in the bush constructing these yards. Gary said that his father and Granny Don Roundhead used to work for all the pastoral families around Coolgardie and Kalgoorlie. His father used to shear sheep and Granny Don was the roustabout. Gary recalled that they took him with them when he was young and that he used to steal biscuits from the shearing shed. He recalled that his father and Uncle Cadley worked at Mungari Station, between Coolgardie and Kalgoorlie.
Gary Sambo married Shirley Bonney and together they had six children: Suzie, Darren, Leith, Gary Jnr, Kyra and Tamara. He had many grandchildren. He and his wife separated over 20 years ago.
Gary Sambo said that he started shearing when he was 15 years old and continued until he retired from it when he was about 42 years old. Gary Sambo worked at stations all over Southern Cross, all over the Goldfields up to Wiluna and all over the Nullarbor.

[582]

Davina Sambo was born on 7 April 1955 at Southern Cross Hospital. Her mother was Linda Champion and her father was William Sambo.
Davina is a sister of both Elizabeth Sambo (whom Davina Sambo calls CB) and Gary Sambo. Davina Sambo has five other brothers and sisters: Dennis Sambo, William Sambo Jr, Shirley Trott (née Sambo) and Desley Richards (née Sambo). Davina said that her parents also raised her cousin, Timothy Champion, who was the son of her mother's sister, Kathleen. Davina said that Aunty Kathleen passed away in 1964 when Timothy was about six months old. Davina's family called Timothy by the name Saul. His father was Shephard Dimer, a Ngadju man.
Davina Sambo's paternal grandparents were Lucy Sambo and Cordi Sambo. Davina expressed her belief that Lucy was born in Kalgoorlie and was Kapurn. Davina said that Lucy's father was Broad Arrow Tommy (also known as Udaji). Davina said that Cordi, also known as Nullagine Sam, was originally from the Pilbara. He met Lucy Sambo when he worked as a police tracker with her father, Broad Arrow Tommy. Cordi died in 1959 and is buried at the Coolgardie cemetery.
As noted above in the context of Elizabeth Sambo's evidence, there is reason to believe that the name of Lucy Sambo's father was Muradi rather than Udaji.
Davina Sambo said her maternal grandparents were Elsie and Ted Champion. Ted Champion's mother was Nellie Champion.
Davina Sambo said that her father, William Sambo, grew up in Coolgardie and Kalgoorlie, and was cared for by his maternal aunt, Granny Mary, whom he called Mumminga. Davina explained that was why her middle name is Mary. Davina said that Granny Mary was married to Granny Shep Knowel. As discussed elsewhere, Charlie Knowel's family name was also spelled Nowa, Now and Gnow (and he was also referred to as Charlie Shepherd and Charlie Maddcok). Davina explained in oral testimony that 'Granny' is used as a term of respect for both female and male elders.
Davina Sambo said that her mother, Linda Champion, grew up in Kellerberrin, Kwolyin, Ardath, Babakin, Badjaling, Bruce Rock, Shackleton, Muntadgin, Merredin and Southern Cross.
Davina Sambo said that she has never been married, but was in a de facto relationship with Brenton Richards for 37 years. She has 7 children (Tosha Sambo, Vera Richards, Belinda Richards, Jenna Richards, Sheldon Richards, Tyson Richards and Jayden Richards), 15 grandchildren, 4 great-grandchildren, and 4 foster grandchildren. Davina's children grew up in Port Lincoln, Kalgoorlie and Coolgardie. Her eldest daughter, Tosha, was born in Kalgoorlie Hospital in 1973. Her remaining children were born in Port Lincoln, from 1982 to 1991. Davina Sambo said that, as a family, they always went back to Kalgoorlie and Coolgardie for extended holidays, including Christmas holidays, school holidays, and to attend family funerals and other family events. In oral testimony, Davina said that her children are traditionally connected to Wirangu and Barngala country, as well as Kapurn country, because their father and grandfather are Wirangu people and their great-grandmother is connected to Barngala country.
Davina Sambo moved to Port Lincoln at the end of 1973, where she has spent most of her life apart from the following periods: for a period around 1975 when she moved back to Kalgoorlie; from 1999 until 2004 when she worked at the school in Coolgardie; and for 18 months between 2010 and 2011 when she worked at the Windarling mine (within the trial area). She has lived in Port Lincoln since the beginning of 2012. However, she refers to Kalgoorlie and Coolgardie as home. Davina's eldest daughter, Tosha, lived in Kalgoorlie from 1996 until 2017, and her other children have lived in Kalgoorlie and Coolgardie on and off at different times. She currently has one son who lives in Kalgoorlie.
Davina Sambo said that growing up, she spent the majority of her time in the bush. She grew up in Coolgardie and Kalgoorlie. Her parents bought a house in Coolgardie in 1956, where she lived until 1964, when she moved to Kalgoorlie. She was in Kalgoorlie from 1964 until 1973. Davina Sambo said that she travelled extensively throughout her childhood due to her father and brothers having shearing roles at different locations, including Turkey Hill Farm and Unkovich Farm (located outside of Southern Cross), Remlap Station (north of Southern Cross), and Mungari Station (between Coolgardie and Kalgoorlie). Davina started her education via correspondence at Remlap Station in 1962. In the same year, she started attending primary school at the Coolgardie Primary School.
Davina Sambo said that her father, William Sambo, had four brothers and one sister. Uncle Willie was the oldest, but she never met him as he passed away when she was one year old. Davina met her father's younger siblings, Arthur, Cadley, Berty, and Rita. Davina spent holidays with Uncle Arthur at Carbine Station (between Coolgardie and Ora Banda), Credo Station and Widgiemooltha. Davina also spent holidays with Uncle Cadley at Hampton Hill Station.
Davina Sambo spent time with her mother's (Linda Champion's) family on brief visits while growing up, including with her grandparents, Grandma Elsie and Pop Ted Champion, and her mother's siblings, Kathleen, Neil and Dave. Davina said that her mother had a close relationship with those siblings as they were close in age. Linda Champion's other brothers and sisters, Ben (Malcolm), Gertie, Brian Snr, Tim and Greta, were younger and closer in age to Davina's older siblings. Davina also remembered Granny Jack Champion, who was Pop Ted's younger brother, and his family.
Davina Sambo referred to other old people whom she remembered growing up, including Don Roundhead, Noona Roundhead, Cecil Wilson, Nyoody Paddy, Dick Donaldson and Snowy Nunkanah.

[583]

Davina Sambo said that she is a Kapurn person. She said that she grew up on her father's country and he told her that she was Kapurn. Davina also said that the old people used to call them gubbultha (Kapurn children). She said that she takes her identity from her father's side as she was born on and grew up in his country. Davina said that her children, grandchildren, her father's siblings and their children and grandchildren are all Kapurn. The majority of Sambo descendants Davina Sambo knows are Kapurn.
Davina Sambo said that 'Gubrun' and 'Kaparn' mean the same thing. She said that 'Gubrun' is the way she writes the word as this is how she was taught to write it when she participated in Barngala language programs.
In relation to the word 'Karlamaya', Davina Sambo said that her mother may have used that word infrequently, but she does not remember her father ever using it. He would always just say 'Kapurn'.
Davina Sambo said that she never heard the word 'Karlaku' growing up and that she only heard it for the first time around 1999, when native title claims started using that name.
Davina Sambo said that she remembers visiting Dorothy Donaldson when she was growing up. She said that her father told her that their family was connected to the Donaldson family, especially Aunty Dorothy Donaldson, Uncle Phil Donaldson, Uncle Bob Donaldson, Uncle Henry Donaldsons and Uncle Kingie (Clem Donaldson). Davina Sambo's father told her that they were part of their family, in the same way that Granny Don Roundhead was.
Davina Sambo said that the ancestors of the Kapurn people are Lucy Sambo for the Sambo family and Warada and Kaddee for the Donaldson family. Davina said that Granny Don Roundhead and Granny Cecil Wilson were Kapurn, because they are connected back to Kaddee and Warada. She said that Granny Dick Donaldson was not Kapurn, but he married into the Kapurn people.
Davina Sambo said that Granny Nyoody Paddy was from Mukinbudin and was of Ted Champion's family. Davina's father told her that Granny Nyoody Paddy was from Davina's mother's side. Davina said that her father was always clear as to whether someone was from his family or her mother's family. I infer that "Granny Nyoody Paddy" is Charlie Paddy, whom Brian Champion Snr referred to as Uncle Noodi.
In relation to her mother's family (the Champion family), Davina Sambo said that her mother told her that Nellie Champion was her great-grandmother. Granny Nellie Champion passed away when Davina Sambo's mother was very young. In her written evidence, Davina stated her belief that the Champion family are from places west of the Kapurn boundary, near where Davina's mother grew up. She said that she was not "passed down anything" about her country from the Champion side of her family, and that she had never been out in the bush with the Champion family. Davina Sambo said that she knows the people and the families that she is connected to on that side, but is otherwise not connected to them. Davina said that her father would always refer to the Champion family as "your mother's family", and made clear that there was a difference between the Champion family and his family. However, in her oral testimony, she agreed that her sister, Elizabeth Sambo, was more knowledgeable than she was about Kapurn country, and therefore she agreed with Elizabeth's evidence that their mother, Linda Champion, was a Kapurn person, and that their great-grandmother, Nellie Champion, was a Kapurn person.

[591]

Davina Sambo said that while she used to see her mother making bush medicine, it was her sister, Elizabeth Sambo, who taught her which plants to use and how to use them. She taught Davina how to find bardis (witchetty grubs), berries and quandongs, and explained which ones were poisonous. Davina's mother taught her how to make damper and kangaroo stew. Davina's daughters now make damper too. Davina said her father and Elizabeth also used to make kangaroo pudding with the blood and the fat in the stomach.
Davina Sambo said that she took her children on a hunting trip each time they visited Kalgoorlie. Her children learnt how to kill a kangaroo, hang it up on a tree and skin it from her brothers and brothers-in-law. Her children can now prepare a kangaroo themselves.
Davina Sambo recounted that bush outings were a family event, in which many family members would drive out to the bush in a big convoy and spend several days out there at a time. Davina said that this tradition still happens today each time that she goes back to Kalgoorlie with her family. When her boys go back to Kalgoorlie by themselves, they go out hunting with their cousins as well. Davina said that they also go out bush when they return for funerals.
Davina Sambo said that there were several important sites that still held significance. She noted the birthing place on the south side of the Coolgardie Hospital, where her father was born, and also an old Kapurn burial ground in the sand plains near Burbank Road, Coolgardie. Davina said her father used to get mad at her when she went near that burial ground and she still warns people against going near it.
Davina Sambo said the places where her elders camped are important, including Southern Cross reserve, the old Coolgardie reserve near the pipeline, and the other Coolgardie reserve near the reservoir. Davina's parents camped at those places and told her about them. Davina said: "You can still feel those old people there when you visit them".
Davina Sambo said that the corroboree grounds are also important places, including the grounds at Southern Cross and Mount Jackson. Davina's father, brothers and sister, Elizabeth Sambo, told her where the important corroboree grounds were located. Davina said that her mother also talked about the Southern Cross grounds, and noted that they are still important because they are part of the elders' stories.
Davina Sambo also said that rock holes in Kapurn country are important places. She listed several rock holes on Kapurn country that were significant, including the water source at Burras Rock, the rock hole at Kunanalling (where she used to go with her family often), Kulkurti rock hole in Coolgardie near Warden Finnerty's house, and Wangine Lake, when it is full of water.
Davina Sambo said that she knows about other important sites on Kapurn country, but these are not meant to be spoken about, especially sites that relate to women's business. There are things that you are allowed to know and things that you are not allowed to know. Davina noted that because many of the old women have passed on, she was not told much of the information about sacred sites that she should have been told. Most of what Davina knows is from her sister, Elizabeth Sambo.

[593]

Ms Bonney was born on 23 August 1960 in Norseman, Western Australia. She was married to Arthur Bonney, who is now deceased. Their children grew up in Esperance and Ms Bonney still lives there.
Ms Bonney's parents were Desmond Sambo and Rosina Charlotte Sambo (née Humphries).
Ms Bonney's paternal grandparents were Willie Sambo and Lilly Sambo (née Ellis). Lucy Sambo was Ms Bonney's paternal great-grandmother (Willie Sambo's mother). Ms Bonney's grandfather, Willie Sambo, died a year or two before she was born. Ms Bonney's father, Desmond Sambo, grew up in Coolgardie and worked and lived in different areas.
Ms Bonney's maternal grandparents were Mabin Humphries and Mable Humphries (née Yarran). Ms Bonney said that her maternal grandparents were from the Wheatbelt Region, around Kellerberrin, and were Noongar. Ms Bonney's mother grew up in the Kellerberrin Wheatbelt Region.
Ms Bonney said that she grew up in Southern Cross, Coolgardie, Kalgoorlie, Norseman and South Australia. She said that her family moved around a lot while she was growing up because the Native Welfare Act required her parents to move around for work. As a child, she lived in the bush in Coolgardie. She said that she moved to Southern Cross when she was approximately three or four years old. She attended primary and high school in Kalgoorlie, during which time she and her family lived with her paternal great-uncle William Sambo and his family. She said that, when she was approximately 15 years old, she and her family moved to Norseman, because her paternal grandfather's sister, Rita Rule (née Sambo), married a man from Norseman and moved there. She went to high school in Esperance. She also spent some time living in South Australia while she was growing up.
Ms Bonney said that the "old people" who were around when she was growing up included her paternal grandfather's siblings, William Sambo, Arthur Sambo, Cadley Sambo, Rita Rule and Herbet Sambo. Ms Bonney also remembered that she regularly visited Dick Donaldson (whom she called "Granny DD"), Dorothy Dimer (née Donaldson) and Dorothy's children. Ms Bonney also remembered growing up around Don Roundhead and his wife Noona. The "old people" that Ms Bonney remembered as being important in the community, and who had a lot of knowledge about traditional ways and/or spiritual matters, were her grandfather, Willie Sambo, Dick Donaldson and Phil Donaldson. She said that they were "law men". She was told that Willie Sambo and Phil Donaldson were the last initiated elders.

[594]

Ms Bonney is Kapurn and Noongar through her parents and grandparents. She said that a person is Kapurn by descent. Ms Bonney was told by her elders on her father's side that she and her family are Kapurn people because they are descendants of Lucy Sambo. Those elders are her father, Desmond Sambo, and her father's aunties and uncles (William, Rita, Herbert and Cadley), and her aunties (Davina and Elizabeth).
Ms Bonney said that she is also Noongar because her mother is a Noongar / Ballardong woman. She said that her siblings are also Kapurn and Noongar.
Ms Bonney said that the Sambo and Donaldson families and their descendants are Kapurn people and come from the same country as her. Ms Bonney said that her father and other elders told her that she is connected to the Donaldson family because her great-grandmother Lucy Sambo and Alice Minjin (whom Ms Bonney referred to as Alice Donaldson) were sisters. I do not accept that evidence in so far as it suggests that Lucy Sambo and Alice Minjin were biological sisters. No other witness gave that evidence and none of the historical evidence supports a finding that Lucy Sambo and Alice Minjin were biological sisters. It is possible that Ms Bonney's elders were referring to a form of classificatory sister relationship between Lucy Sambo and Alice Minjin. Other evidence, referred to later in these reasons, indicates that there was a close relationship between Lucy and Cordi Sambo on the one hand and Dick Donaldson and Alice Minjin on the other. In an interview with Stuart Fisher in 1992, Phil Donaldson spoke about how his father, Dick Donaldson, "reared Willie [Sambo] up" and used to work with him out at Pinjin Station, and how Willie and Phil went through Kapurn law at Coolgardie.
In her written evidence, Ms Bonney expressed the view that, while the Champion family were connected to the Sambo family through marriage, they were not from the same country as the Sambo family. However, during cross-examination, it became clear that Ms Bonney did not know the Champion family very well. Ms Bonney said that she could not say whether the Champion family were Kapurn, because she did not know.
Mr Bonney said that the words 'Kaparn' and 'Gubrun' have the same meaning, but she is more familiar with the spelling 'Gubrun'.

[598]

Trevor Donaldson was born on 3 January 1956 in Kalgoorlie. Trevor Donaldson's parents were Henry Donaldson and Olive Donaldson (née McGrath).
Trevor Donaldson's paternal grandparents were Dick Donaldson (whom he called "Ngoornie") and Alice Minjin Wilson, whom Trevor said was King Billy's daughter.
Trevor Donaldson's maternal grandparents were Bricky McGrath and Mary. Trevor does not remember Mary's last name before she was married.
Trevor Donaldson said that he is a Ngadju man and a Karlaku / Karlamaya man. He said that he is a Ngadju man through his paternal grandfather, Dick Donaldson, which gives him a connection to the Norseman area. He is Karlaku / Karlamaya through his paternal grandmother, Alice Minjin Wilson, through whom he believes he is related to Kaddee and Warada. He was told by his "old people" while he was growing up that he has a strong connection to the Kalgoorlie and Coolgardie area.
Trevor Donaldson said that his traditional name is "Pumpum" which he was given by a senior Ngadju man from Norseman named Pumpum Schultz.
Trevor Donaldson said that his father, Henry Donaldson, was a stockman and labourer. Olive Donaldson was employed by the family that owned Hampton Hill Station to clean and undertake other domestic duties.
Trevor Donaldson's wife is Ellen Donaldson (née Ashwin). During oral testimony, Trevor said that his wife is related to the Cooper family (although he was not sure how they were related).
Trevor Donaldson said that his "old people" gave him his totem, the ngoor-ngoor (tawny faced owl), which is named after the sound it makes. Trevor said that having this totem gives him a sense of connection to the "old people" he shares it with.
In his written evidence, Trevor Donaldson said that he is the oldest surviving male of the Donaldson family. During oral testimony, Trevor acknowledged that his cousin, Henry (Ricky) Dimer, is a member of the Donaldson family (Ricky's mother was Dorothy Dimer née Donaldson) and is four years older than Trevor. Trevor clarified in the course of oral testimony that he is the oldest surviving male of the Donaldson family with the surname Donaldson.
Trevor Donaldson said that he was raised by his mother and father in Widgiemooltha. In the Karlamaya / Karlaku language, widgie means crow, and mooltha means nose. There's a large hill near Widgiemooltha which has a resemblance to a crow's nose, which is where the town gets its name. Trevor Donaldson said that Widgiemooltha is a very powerful place.
Trevor Donaldson attended high school in Kalgoorlie. When he was in year nine, he stayed with his "Thamu Ngoornie" (thamu means grandfather and Ngoornie is how he referred to Dick Donaldson) in his shack in Coolgardie and would catch the bus from Coolgardie into Kalgoorlie each day to go to school. He said:

[600]

Trevor explained that a wati is an initiated man who has membership to certain rights, stories, songs and sites.
Trevor Donaldson worked at the Goldfields Land and Sea Council for about 13 years. In that capacity, he was involved in the Ngadju and Mirning native title claims.
At the time of giving evidence Trevor Donaldson was employed by the West Australian Country Health Service managing the Kalgoorlie Renal Hostel, where he had worked for three years. Trevor said that the residents at the Hostel are a mixture of language groups, including Ngaanyatjarra, Tjuntjuntjara and Mardu. It was noticeable that Trevor did not refer to Karlamaya, Karlaku or Kapurn people residing at the Hostel. That omission was not explained. When asked if he had learned other languages, Trevor said that he had worked a lot with Ngaanyatjarra people and he had been out on their lands. I understood Trevor to intimate that he could converse with Ngaanyatjarra people, and I infer that he did so in the Wongatha language.
Trevor Donaldson said that he can't speak the Karlamaya language or the Ngadju language. He said that the only remaining fluent Ngadju speaker had been his great Aunty Dorothy (Dorothy Dimer). However, Trevor said that he does know a number of words in the Wongatha language. In the course of giving his evidence, Trevor used a number of Wongatha words (for example, wati, wati purlkanya and tjukurpa).
As noted above, the family name of Trevor Donaldson's wife is Ashwin, and Trevor believes that he is related to the Cooper family. It seems likely that the relationship comes through the Cooper respondents' paternal grandmother, who was Trilby Ashwin. As discussed below, Gary Cooper's mother was a Ngaanyatjarra person, and Gary Cooper's evidence was that she spoke the Wongatha language, which Gary Cooper also speaks. In the course of oral testimony, Trevor described the Cooper family as his wife's family. The personal relationship between Trevor Donaldson and the Cooper family has some significance in assessing his evidence, as discussed below.

[601]

Trevor Donaldson's written evidence concerning the extent of Karlamaya country was qualified. He said that he had heard his "old people" speak of country extending beyond the places that he was sure of. Nevertheless, he gave the following descriptions of country that he was "sure of". Trevor said that he believed his country extends west to somewhere around Boorabbin, south-west down to around Thursday Rock and Victoria Rock, across to Cave Hill and then towards Widgiemooltha and across to Lake Lefroy. He said the eastern boundary is around Kambalda West, extending up and out to near Mount Monger and then further north to Hampton Hill Station and the western end of Lake Yindarlgooda. From there, Trevor said his country extends north in an outer curve around Goongarrie and across Comet Vale. In his written evidence, Trevor said that the boundary line then heads south-west toward Bungalbin and out to Mount Jackson, before returning to the Boorabbin area.
During cross-examination, Trevor Donaldson's evidence changed in two respects. First, counsel for the Karratjibbin applicant suggested to him that Karlamaya country did not go as far west as Mount Jackson. Trevor appeared to agree with that suggestion. Second, counsel for the Cooper respondents suggested to Trevor that the eastern part of the trial area is part of the Cooper family's country, to which Trevor replied "possibly".
Having regard to the weight of the lay witness evidence overall and the expert anthropological evidence discussed in these reasons, I do not accept Trevor Donaldson's evidence with respect to the boundaries of Karlamaya country in the west of the trial area, or the claimed interests of the Cooper family in the eastern part of the trial area. Trevor's evidence concerning the western side of the trial area is contradicted by a large body of lay and expert evidence. I consider that Trevor's evidence with respect to the Cooper family's country was influenced by his personal connection with the Cooper family, through his wife. In his written evidence, Trevor clearly identified the eastern part of the trial area as Karlamaya Karlaku country, and his family's country. In cross-examination, he said that the area was "possibly" part of the Cooper family's country. Trevor gave that answer despite the fact that neither he, nor counsel for the Cooper respondents, identified the Cooper family as being Karlamaya or Karlaku people.

[631]

The Karratjibbin applicant called five lay witnesses to give evidence, all of whom are members of the Karratjibbin claim group. Their evidence is considered in this section of the reasons.
The primary evidence on behalf of the Karratjibbin applicant was given by a single witness, Reginald Craig Yarran (who was generally referred to as Reg Yarran Jnr, to distinguish him from his father who had the same name and is generally referred to as Reg Yarran Snr). Supporting evidence was given by Reg Yarran Jnr's cousins, Gail Yarran and Norman Pickett. However, not only was their written evidence limited, but a significant part of their written evidence was also identical, indicating that the evidence had been written by the same hand, diminishing the weight I give to the evidence. Even more limited supporting evidence was given by Jason Colbung, who is also a cousin of Reg Yarran Jnr. Some short responsive evidence was given by Glenys Yarran, the mother of Reg Yarran Jnr.
As noted earlier, the contentions advanced by the Karratjibbin applicant shifted markedly during the course of the trial. Two significant changes are noted.
First, the description of the Karratjibbin claim group was narrowed. In their concise statement dated 14 April 2023, the Karratjibbin claim group was defined as the descendants (biological or by adoption) of apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby. In their amended concise statement dated 2 October 2023 (filed at the commencement of the trial), the Karratjibbin applicant redefined the Karratjibbin claim group as the descendants (biological or by adoption) of apical ancestors Billy Yambinut and Toby. The Karratjibbin applicant acknowledged that the ancestors Polly and Eva are affinal ancestors for the members of the current Karratjibbin claim group insomuch as Polly and Eva are not known to have any current living descendants. The Karratjibbin applicant also acknowledged that Nimmo was the son of apical ancestor Toby and is not strictly an apical ancestor (as all descendants of Nimmo are also descendants of Toby). At the conclusion of the trial, the Karratjibbin applicant conceded that it had not adduced any positive evidence establishing that Toby was an apical ancestor for the purposes of the claim. Accordingly, the Karratjibbin applicant proceeded on the basis that the members of the Karratjibbin claim group are the descendants (biological or by adoption) of Billy Yambinut. A difficulty for the Karratjibbin applicant is that each of the lay witnesses who gave evidence for the Karratjibbin applicant claimed to be Karratjibbin through descent from Toby Williams (that is, Nimmo) and not Billy Yambinut.
Second, the claims first advanced by the Karratjibbin applicant proceeded on the basis that the Karratjibbin people were a separate group of people, with their own language, who had rights and interests in the Karratjibbin claim area. The Karratjibbin claim group is entirely separate from the Marlinyu Ghoorlie claim group as there are no common apical ancestors between the two claim groups. Further, the native title application filed by the Karratjibbin claim group did not refer to any connection with the Karlamaya or Kapurn people or claim to be part of the Karlamaya or Kapurn people. In closing submissions, however, the Karratjibbin applicant conceded that it had been unable to establish that the Karratjibbin people constituted (at sovereignty) a distinct society in their own right. With that recognition, the Karratjibbin applicant advanced a new contention that the Karratjibbin people constitute a subsidiary group within a broader normative system which includes persons who variously identify as Kapurn, Karlamaya or Karlaku. As discussed below, the contentions advanced by the Karratjibbin applicant in their closing submissions are not supported by the lay evidence adduced on behalf of the Karratjibbin applicant.
In considering the evidence of the Karratjibbin witnesses, it is necessary to have regard to the available historical evidence concerning the forebears through whom the Karratjibbin applicant claims to hold rights and interests in the Karratjibbin claim area. The most immediate forebear is Beatrice Yarran (née Winmar) who was the mother of Norman Yarran (also known as Doy), Conway Yarran, Dorcas May Pickett (née Yarran), Rhoda, Laurel, Ivy (also known as Bertha) Colbung (née Yarran) and Reg Yarran Snr. It is uncontroversial that Beatrice's mother was Julia (Dunniyan) Penny and her father was Toby (Nimmo) Williams (and her stepfather by Julia Penny's second marriage was Fred Winmar). The controversy concerns the question whether Julia (Dunniyan) Penny or Toby (Nimmo) Williams held rights and interests in the Karratjibbin claim area (it is common ground that Fred Winmar was a Noongar man who did not hold rights and interests in the Karratjibbin claim area).
The historical evidence concerning Toby (Nimmo) Williams and Julia (Dunniyan) Penny is discussed later in these reasons. I have taken that evidence into account in assessing the evidence given by the Karratjibbin witnesses. The following matters are particularly significant:

[633]

One further matter should be noted by way of introduction to the evidence of the Karratjibbin witnesses. Between 1999 and 2002, anthropologist Dr Bruce Shaw undertook a number of interviews with Reg Yarran Snr. The interviews were conducted for the purposes of the Ballardong claim which was filed in 1998. The Ballardong claim covered an area to the south-west of the trial area but, in its original form, included a large part of the trial area including, for example, Mount Jackson, Southern Cross, Marvel Loch, Westonia and Kalannie. Relevantly, in its original form, the Ballardong claim extended over the area that is now the Karratjibbin claim area. Reg Yarran Snr was an applicant for the Ballardong claim. The Ballardong claim made no reference to 'Karratjibbin' people (nor to Karlamaya or Kapurn people).
After Reg Yarran Snr's death (in 2004), the Ballardong claim was amended in 2008 to withdraw the boundary of the claim area to what is now the south-west boundary of the trial area (and therefore removing the claim over what is now the Karratjibbin claim area). The Ballardong claim was subsequently resolved as part of the South West Native Title Settlement and a Ballardong ILUA was entered into in 2016.
A document was tendered in evidence which contains both transcripts of interviews conducted of Reg Yarran Snr by Dr Shaw, and notes or compilations of the interviews prepared by Dr Shaw. The interviews conducted in 1999 were focussed on the Ballardong people, being a part of the wider Noongar nation. However, the interview conducted in 2002 focussed on Reg Yarran Snr's mother, Beatrice, and Reg Yarran Snr's belief that his mother held rights and interests in the area around Mount Jackson (within the Karratjibbin claim area) as a Karlamaya person. Although the 2002 interview was ostensibly with Reg Yarran Snr, both Glenys Yarran and Reg Yarran Jnr played a dominant role in the interview and provided or prompted many of the answers given to Dr Shaw. The relevant aspects of those interviews are discussed in some detail below. However, four observations are relevant to the overall assessment of the evidence given by the Karratjibbin witnesses.
First, there is a direct and inexplicable inconsistency between Reg Yarran Snr being an applicant on the Ballardong claim and asserting rights and interests in what is now the Karratjibbin claim area as a Ballardong (Noongar) person, while at the same time stating a belief that that area was Karlamaya country.
Second, there was no reference in the Ballardong claim, nor in the interview conducted with Dr Shaw in 2002, to any group of Aboriginal people known as 'Karratjibbin'.
Third, the 2002 interview indicates that, at that time, Reg Yarran Jnr and his mother, Glenys Yarran, had been undertaking historical research into their family genealogy. That was also admitted by Reg Yarran Jnr in cross-examination. Reg Yarran Jnr agreed that, after the Ballardong claim was filed, he began undertaking research into that claim area (which, as noted above, at that time included the Karratjibbin claim area). Reg Yarran Jnr agreed that he visited the South Australian Museum and Adelaide University and obtained records from the Tindale collection. That is not a point of criticism, but it does indicate that some of the evidence given by them is derived from their interpretation of historical sources rather than from family oral history.
Fourth, there are a number of inconsistencies between the information conveyed to Dr Shaw in 2002 and the evidence given by the Karratjibbin witnesses at trial, which are referred to below.
Assessing the evidence given by the Karratjibbin witnesses as a whole, and in light of all evidence concerning the Yarran extended family, I am not persuaded that the Yarran extended family ever used the name 'Karratjibbin' to describe themselves. I accept that, historically, the extended Yarran family may have considered that they hold rights and interests in the western part of the trial area, but I consider it most likely that, historically, the family believed that the western part of the trial area was Ballardong (Noongar) country. I consider that the adoption of a 'Karratjibbin' identity is a relatively recent occurrence, which followed from research of historical sources undertaken by Reg Yarran Jnr.

[634]

Reg Craig Yarran Jnr made three statements in this proceeding, dated 7 August 2023, 4 September 2023 and 6 September 2023. He gave evidence at the Kalgoorlie Town Hall on 11 October 2023 and at sites in the western part of the trial area identified as Lake Koorkoordine and Lake Deborah West on 9 October 2023. He was cross-examined on each occasion.
At the time of signing his witness statements and giving evidence, Reg Yarran Jnr resided in Perth.
I do not consider Reg Yarran Jnr to be a reliable witness. Indeed, I considered that Reg Yarran Jnr was careless with the truth. He was evasive in answering many questions; numerous aspects of his evidence were shown to be wrong; he gave inconsistent answers when giving evidence; and he was prone to exaggeration. His evidence concerning the Karratjibbin claim area was limited and given at a very high level of generality. I do not consider that I can put any weight on his evidence unless it is corroborated by other reliable evidence.
The principal difficulties and inconsistencies in Reg Yarran Jnr's evidence are identified below when discussing specific aspects of his evidence. It needs to be emphasised that there were so many difficulties and inconsistencies with Reg Yarran Jnr's evidence that it is impractical to record them all. I have limited the review of his evidence to the more significant matters.
Before turning to specific aspects of Reg Yarran Jnr's evidence, however, it is convenient to refer to certain overarching issues that highlight many of the problems with his evidence.
The first overarching issue concerns the adoption by Reg Yarran Jnr of the name 'Karratjibbin' to refer to himself, and his family, as Aboriginal people who hold rights and interests in the western part of the trial area (being the Karratjibbin claim area). During cross-examination, Reg Yarran Jnr gave evidence that he first referred to the Karratjibbin claim area as Karratjibbin country in 1998 when registering the Ballardong claim. He also insisted that his father, Reg Yarran Snr, referred to the Karratjibbin claim area as "Karratjibbin country". Reg Yarran Jnr also said that his father used both the name Karratjibbin and the name Karlamaya to refer the Karratjibbin claim area. I do not accept that evidence. I find that the adoption of the name 'Karratjibbin' by the Karratjibbin applicant is a relatively recent occurrence associated with the Karratjibbin claim. There are five reasons for reaching that conclusion.
First, I accept Nell Taylor's evidence that the term 'Karratjibbin' was invented and used exclusively by Daisy Bates to name the group of Indigenous people she encountered in Southern Cross during her research in 1907. Daisy Bates gave them the name 'Karratjibbin' after the group's favoured camping site near Southern Cross. Ms Taylor reported that she is not aware of any other anthropologists or researchers who have identified a group of persons by the name 'Karratjibbin'. Ms Taylor further reported that she is not aware of any documents or materials that support the proposition that there was, at effective sovereignty, and still is today, a group of people called Karratjibbin who are distinct from the Karlamaya Kapurn people. There is no historical record which suggests that any Aboriginal group in the trial area identified themselves using the name 'Karratjibbin'.
Second, despite the history of native title claims in respect of the trial area, no modern-day group of Aboriginal people has previously adopted the name 'Karratjibbin' to refer to Aboriginal people who hold rights and interests in the western part of the trial area.
Third, in the interview conducted by Dr Shaw in 2002, none of Reg Yarran Snr, Glenys Yarran or Reg Yarran Jnr used the name 'Karratjibbin'. This is despite the fact that the subject of the interview was a claim by Reg Yarran Snr that his mother Beatrice held rights and interests in the western part of the trial area (now the Karratjibbin claim area). In that interview, Reg Yarran Snr referred to his mother's country as Karlamaya country.
Fourth, the absence of any reference to the name 'Karratjibbin' in the 2002 Bruce Shaw interview is particularly striking in light of the fact that Reg Yarran Jnr gave evidence that "Karratjibbin Hill" is an important spiritual site for the Karratjibbin people. Reg Yarran Jnr gave evidence that Karratjibbin Hill is about five kilometres from the homestead of Mount Jackson, and that Karratjibbin Hill:

[644]

The third overarching issue concerns the extent of the inconsistencies between the evidence given by Reg Yarran Jnr and the information conveyed by Reg Yarran Snr to Dr Shaw when interviewed between 1999-2002. Some of the inconsistencies are not significant in themselves. However, the combined effect of the inconsistencies is to cause me to have no confidence in the reliability of the evidence given by Reg Yarran Jnr. The inconsistencies included the following.
First, as already noted, Reg Yarran Jnr gave evidence that his father referred to the western part of the trial area as 'Karratjibbin' country. However, in the Dr Shaw interview in 2002 (which was focussed on the western part of the trial area and Reg Yarran Snr's claim that it was his mother's country), Reg Yarran Snr only referred to the area as Karlamaya country.
Second, Reg Yarran Jnr gave evidence that his father's mother, Beatrice, was born in Mount Jackson (within the Karratjibbin claim area). However, in the Dr Shaw interview in 2002, Reg Yarran Snr said that his mother was born somewhere between Kellerberrin (outside the Karratjibbin claim area) and Southern Cross and that he did not know where.
Third, in cross-examination, Reg Yarran Jnr was asked where his father grew up and he answered "all throughout the claim area". However, in the Dr Shaw interview conducted on 30 June 1999, Reg Yarran Snr stated that he went to school at Badjaling Mission and, when that closed down, the family moved into Quairading and he went to the state school. Reg Yarran Snr said that he had lived most of his life around Quairading, for 10 years he had lived in Northam, and in the last 5 years (prior to the interview in 1999) he had moved to Perth.
Fourth, in his written evidence at trial, Reg Yarran Jnr stated that the biological father of his father's mother, Beatrice, was Toby Williams, but that Beatrice was raised by her stepfather, Fred Winmar. That evidence is consistent with the historical records adduced in evidence, discussed later in these reasons. Reg Yarran Jnr also gave evidence that a common mistake in his family history is the belief that Fred Winmar was Beatrice's father, whereas his family "was taught our true history". I understand that evidence to mean that knowledge of Beatrice's biological father was passed down the family as oral history. Contrary to that evidence, it is apparent from the Dr Shaw interview conducted in 2002 that, at that time, Reg Yarran Jnr and his parents believed that Beatrice's biological father was Fred Winmar. There is no reference to Toby Williams in that interview. I infer that Reg Yarran Jnr learned that Toby Williams was Beatrice's biological father at a later point in time from his research of historical records.
The fourth overarching issue concerns Reg Yarran Jnr's claim to Karratjibbin cultural authority within his extended family. In his written statement, Reg Yarran Jnr stated:

[647]

Reg Yarran Jnr was born in 1977 in Norseman.
Reg Yarran Jnr's father was Reg Yarran Snr, who was born in 1944 in Quairading (which Reg Yarran Jnr agreed was Noongar country) and died in 2004. As referred to above, Reg Yarran Jnr was asked in cross-examination where his father grew up and he answered: "all throughout the claim area". I reject that evidence because it is inconsistent with the information given by Reg Yarran Snr to Dr Shaw in an interview conducted on 30 June 1999. As noted above, Reg Yarran Snr said in that interview that he lived most of his life around Quairading, for 10 years he had lived in Northam, and in the last five years (prior to the interview in 1999) he had moved to Perth.
Reg Yarran Jnr's mother is Glenys Yarran whom Reg described as a Noongar (Whadjuk) woman. Reg Yarran Jnr's paternal grandfather was Norman Yarran Snr, whom Reg described as a Ballardong man. Reg Yarran Jnr's paternal grandmother was Beatrice Yarran (née Winmar), whom Reg described as a 'Karratjibbin' woman.
Reg Yarran Jnr has three sisters, Amanda, Chantelle and Beatrice, as well as stepbrothers that he did not identify in his evidence.
Reg Yarran Jnr is unmarried and has no children.
Reg Yarran Jnr gave evidence that he did not grow up on the Karratjibbin claim area. However, he said that he frequently went on "Karratjibbin country" by taking "our family" on camping trips and cleaning up "our significant heritage sites". Recognising that Reg Yarran Jnr is unmarried, the reference to "our family" must be a reference to his parents, his siblings and perhaps his cousins. Reg Yarran Jnr's evidence concerning his trips to the Karratjibbin claim area is considered further below.
Other than the foregoing, Reg Yarran Jnr gave no evidence concerning his personal history and the locations in which he lived. At the time of giving evidence, he resided in Perth. As noted above, Reg Yarran Snr told Dr Shaw in 1999 that he had moved to Perth five years prior, but the interview does not make clear whether Reg Yarran Jnr was also living in Perth at that time too.

[652]

Beatrice Yarran's death certificate records that she was born in 1908 in Kellerberrin and died in 1975, two years before Reg Yarran Jnr was born.
Reg Yarran Jnr's evidence that Beatrice's biological father was Toby Williams, and her stepfather was Fred Winmar, is consistent with the historical evidence considered below. However, at the time that Reg Yarran Snr was interviewed by Dr Shaw in 2002, that does not appear to have been known by the family. It is apparent from the interview that the genealogy that had been prepared for discussion with Dr Shaw recorded that Beatrice's father was Fred Winmar, and that each of Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr believed that Beatrice's biological father was Fred Winmar. During the interview, no mention is made of Toby Williams. That is not a point of criticism. However, it contradicts Reg Yarran Jnr's written statement, reproduced above, that his family "was taught our true history", being the fact that Beatrice's father was Toby Williams.
Reg Yarran Jnr's evidence that Fred Winmar raised Beatrice Yarran as his own daughter is significant. It is uncontroversial that Fred Winmar was a Noongar man and had no rights and interests in the trial area. It follows that Beatrice would not have learned knowledge of the laws and customs of the trial area from Fred Winmar.
Reg Yarran Jnr stated in oral testimony that his father told him that his grandmother Beatrice "was taken away from country" and placed in the Badjaling Mission. In his witness statement, Reg Yarran Jnr states that Beatrice was "moved away from Mt Jackson", implying that Beatrice was born at Mount Jackson (within the trial area). I reject that evidence. It is not consistent with the information conveyed by Reg Yarran Snr to Dr Shaw during the 2002 interview. In that interview, Reg Yarran Snr stated that Beatrice was "was born in the bush out there somewhere" and that he did not know the location but it "could be from Kellerberrin right up to Southern Cross". The evidence is also not consistent with Beatrice's death certificate which states that she was born in Kellerberrin (which is in Ballardong country to the west of the Karratjibbin claim area).
Reg Yarran Jnr also stated that, as his grandmother Beatrice was a "full blood" Aboriginal woman, she was not allowed to live at the Badjaling Mission, so lived nearby in the bush at a place called Yoting (about five kilometres away from the main mission). During cross-examination, Reg Yarran Jnr gave inconsistent evidence in response to the question whether his grandmother, Beatrice, lived all of her life on Noongar country after she moved to Badjaling Mission and Yoting. At first, Reg Yarran Jnr agreed with that statement. However, when subsequently challenged by a question that his grandmother therefore had no firsthand knowledge of the Karratjibbin claim area, Reg Yarran Jnr qualified his first answer by stating that Beatrice did not visit the Karratjibbin claim area as a child, but she did visit that area as an adult. I place no weight on that evidence.

[657]

In his evidence, Reg Yarran Jnr referred to three other persons whom he says are relatives and from whom he learned about the Karratjibbin claim area and holds rights and interests in the Karratjibbin claim area and acquired "Karratjibbin cultural knowledge": Percy Carney, Pompey Williams, and Don Roundhead.
Reg Yarran Jnr referred to Percy Carney as "Granny Percy". In his 2002 interview with Dr Shaw, Reg Yarran Snr said that Percy Carney told him that Julia Penny was his (Percy's) sister and that Beatrice was his niece. Percy Carney lived with Reg Yarran Snr and his wife Glenys for many years. Reg Yarran Snr said that Percy Carney told him that Karlamaya country was his (Percy's) country and his sister's (Julia's) country. The historical evidence, discussed later in these reasons, supports a conclusion that Percy Carney was the son of Tom Carney and Annie Donald / McIntyre and he was therefore, a half-brother to Julia Penny and a half-uncle to Beatrice. At trial, the Karratjibbin applicant did not advance a contention that Annie Donald / McIntyre was a Karlamaya woman and none of the historical information concerning Annie provides any support for such a finding. The available historical evidence also provides no support for a conclusion that Percy Carney was a Karlamaya man, although in around 1944 he was working in Mukinbudin (and otherwise worked outside of the trial area).
Reg Yarran Jnr referred to Pompey Williams as "Uncle Pompey", although he also explained that Pompey was his father's uncle. The historical evidence, discussed later in these reasons, supports the conclusion that Pompey Williams was the son of Toby and Pretty Polly and the brother of Toby (Nimmo) Williams (and thereby a great uncle to Reg Yarran Snr). However, like Toby (Nimmo) Williams, there is no evidence that Pompey Williams was a Karlamaya man. When interviewed by Tindale in Albany in 1939, Pompey Williams identified himself as Noongar and said that Noongar was his language.
Reg Yarran Jnr also referred to Don Roundhead as "Uncle Don", again explaining that Don was his father's uncle. Don Roundhead has been discussed earlier in these reasons where I have concluded that he is a Karlamaya Kapurn man. In his 2002 interview with Dr Shaw, Reg Yarran Snr said that Don Roundhead was his mother's (Beatrice's) cousin. In the same interview, by reference to a genealogy that had been created, Reg Yarran Jnr stated that Don Roundhead's mother, Eva, was the sister of Julia Penny. As discussed later in these reasons, there is no support in the historical evidence for a conclusion that Eva Roundhead was Julia Penny's sister. Indeed, the available historical evidence contradicts any such conclusion. In my view, that suggestion appears to have arisen from erroneous genealogical research undertaken by or on behalf of Reg Yarran Jnr.

[666]

In that passage of the interview, Reg Yarran Snr conveys that he did not travel to the trial area with Percy Carney; rather, Percy Carney told him stories about Karlamaya country. The historical evidence, discussed later in these reasons, indicates that Percy Carney lived some of his life in the western part of the trial area. However, the historical evidence does not support the conclusion that Percy Carney was a Karlamaya Kapurn person. It is possible, though, that Percy Carney acquired knowledge about the western part of the trial area from Karlamaya Kapurn people.
Reg Yarran Jnr confirmed in evidence that his father was a close friend of Malcolm Ben Champion and they spent a lot of time together. Reg Yarran Jnr also said that his father learned from Malcolm Ben Champion the song line of the Wagyl, the snake that travelled from Uluru through to Mount Jackson (within the trial area) and on into Noongar country. That evidence is consistent with the 2002 interview with Dr Shaw, where Reg Yarran Snr described Malcolm Champion as "part of the Gubrun mob".
Dr Shaw's 2002 interview with Reg Yarran Snr (and Glenys Yarran and Reg Yarran Jnr) is considered in more detail below. However, although the interview concerned the western part of the trial area which is the subject of the Karratjibbin claim, Reg Yarran Snr conveyed very little information to Dr Shaw about that area, suggesting that Reg Yarran Snr had limited knowledge of the area.
As set out earlier in these reasons, Leeroy Bilney gave evidence in relation to a trip that he went on to Southern Cross with his grandfather, Malcolm Ben Champion, and accompanied by Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr in about 1998 in connection with the Ballardong claim. The substance of the evidence was that Reg Yarran Snr, Glenys Yarran and Reg Yarran Jnr were each asking questions of Malcolm Ben Champion seeking information about the Southern Cross area. In his second witness statement, Reg Yarran Jnr discussed that trip. He said that his mother did not ask questions of Malcom Ben Champion or her husband, because it would have been culturally inappropriate for her to do so. Otherwise, he did not contradict the evidence given by Leeroy Bilney in any material way.

[688]

The foregoing evidence, that the songline involves two different snakes, was not part of the traditional story conveyed by Reg Yarran Snr to Dr Shaw.
During cross-examination in Kalgoorlie, Reg Yarran Jnr's evidence shifted again. He said that the Waarlu was not part of the songline of the snake that travelled from Uluru, through Mount Jackson and into Noongar country. He said that the Waarlu travelled only within Karratjibbin country. But then later in cross-examination, Reg Yarran Jnr said that the name for the snake for the song line when it is in Noongar country is the Wagyl, but the name for the snake for the songline when it is in Karratjibbin country is the Waarlu. However, confusingly, Reg Yarran Jnr agreed with the proposition that there are two snakes in Karratjibbin country, and that the snake for the song line that travels from Uluru, through Mount Jackson and down through Noongar country is a different snake to the Waarlu.
I reject Reg Yarran Jnr's evidence concerning the Waarlu. That is for three reasons. First, his evidence was inconsistent. Second, whilst Reg Yarran Jnr said that he learned the story of the Waarlu from his father, there is no mention of a snake called the Waarlu in the extensive interviews conducted by his father with Dr Shaw. Most relevantly, in the 2002 interview which concerned the western part of the trial area including the area around Mount Jackson, Reg Yarran Snr only referred to the Wagyl creation being. Third, none of the Aboriginal language word lists created in and around the trial area use the word waarlu for snake. Ms Taylor gave evidence, which I accept, that warlu is a word for snake used in the Pilbara region of Western Australia, but not by Noongar or Kapurn people. Ms Taylor noted that the Kaalamaya Dictionary (Draft, Hanson, 2019) refers to the word for "dreaming water snake" or "snake that lives in the waterhole" as Pimara (which is consistent with the word used in the evidence given by Marlinyu Ghoorlie witnesses).

[715]

It can be seen that Norman Pickett's evidence concerning his forebears is the same as Reg Yarran Jnr's evidence. I infer that Norman Pickett's evidence was copied from Reg Yarran Jnr's evidence because the copying produced an error. In each witness statement, the grandmother being referred to is Beatrice Winmar. In the case of Reg Yarran Jnr, Beatrice is his grandmother on his father's side. In the case of Norman Pickett, however, Beatrice is his grandmother on his mother's side (contrary to his witness statement). During cross-examination, Norman Pickett was asked questions about Toby Williams. It was apparent from his answers that he had no real knowledge about Beatrice's parents. It can also be seen that Norman Pickett's witness statement did not copy one aspect of Reg Yarran Jnr's witness statement, being the statement: "I claim my Karratjibbin heritage through my apical ancestors Eva and her son Toby".
In oral testimony, Norman Pickett was asked whether his uncles, Norman (Doy), Conway and Reg Snr, ever spoke about their mother's (Beatrice's) country. Norman Pickett replied that, when they went to Mukinbudin, they were told that was Beatrice's country. Norman Pickett said that he believes that Beatrice was born at Mount Jackson (before she was removed to Kellerberrin) and that it was his "elders" who told him that. Norman Pickett believes that Beatrice had rights in the Karratjibbin claim area because she was born in Mount Jackson.
Norman Pickett's evidence with respect to Beatrice's place of birth is consistent with Reg Yarran Jnr's evidence. However, as noted in the context of Reg Yarran Jnr's evidence, that evidence is inconsistent with the information conveyed by Reg Yarran Snr to Dr Shaw in the interview conducted in 2002. At that time, Reg Yarran Snr said that his mother was born somewhere between Kellerberrin (outside the Karratjibbin claim area) and Southern Cross and that he did not know where. As noted earlier, Beatrice's death certificate records her place of birth as Kellerberrin. Weighing all of the evidence, I do not accept that Beatrice was born near Mount Jackson. In any event, none of the evidence concerning the traditional laws and customs that applied in the western part of the trial area suggest that rights and interests in country are conferred by place of birth.

[731]

As noted above, between 1999 and 2002, anthropologist Dr Bruce Shaw undertook a number of interviews with Reg Yarran Snr. Reg Yarran Snr died in 2004.
The interviews were conducted for the purposes of the Ballardong claim which covered an area to the south-west of the trial area but, in its original form, included a large part of the trial area including, for example, Mount Jackson, Southern Cross, Marvel Loch, Westonia and Kalannie (largely covering the Karratjibbin claim area). The Ballardong claim was amended in 2008 to withdraw the boundary of the claim area to what is now the south-west boundary of the trial area.
A document was tendered in evidence (by the Marlinyu Ghoorlie applicant) which contains both transcripts of interviews conducted by Dr Shaw and notes or compilations of the interviews prepared by Dr Shaw. The transcripts and compilations reveal that the interviews were focussed on the Ballardong claim, with the Ballardong people being a part of the wider Noongar nation. However, in an interview conducted in 2002, Reg Yarran Snr stated his belief that his grandmother (his mother's mother), Julia Penny, held rights and interests in the area around Mount Jackson. The relevant aspects of that evidence are set out below.
As disclosed in the evidence of Reg Yarran Jnr, Reg Yarran Snr was Reg Yarran Jnr's father. He was born in 1944 and died in 2004. Reg Yarran Snr's parents were Norman Yarran Snr (whom Reg Yarran Jnr described as a Ballardong man) and Beatrice (whom Reg Yarran Jnr described as a Karratjibbin woman). Beatrice's parents were Toby (Nimmo) Williams and Julia (Dunniyan) Penny.
Reg Yarran Snr's wife, Glenys Yarran, and his son, Reg Yarran Jnr, also attended the interview conducted in 2002 and, indeed, answered the majority of questions that were asked. Although the transcript of their answers is hearsay, it was admitted into evidence without objection (in part because the transcripts were relied upon by Dr Corrigan). Nevertheless, it should be noted that, although Reg Yarran Jnr and Glenys Yarran gave evidence at trial, neither of them expressly adopted or repeated what they said to Dr Shaw at the interview. The failure to give sworn testimony about those matters diminishes the weight that I am prepared to give to the hearsay statements appearing in the transcript. Furthermore, aspects of the evidence given by Reg Yarran Jnr are inconsistent with statements made at the interview.
The first transcript adduced in evidence comprised a transcript and notes of an interview between Dr Shaw and Reg Yarran Snr conducted on 30 June 1999. By way of biographical context, Reg Yarran Snr stated that he was born in 1944 in Quairading. He went to school at Badjaling Mission and, when that closed down, the family moved into Quairading and he went to the state school. After school, Reg Yarran Snr worked as a shearer on many farms, and also worked as a farm labourer, amongst other jobs. Reg Yarran Snr said that he had lived most of his life around Quairading, for 10 years he had lived in Northam, and in the last 5 years he had moved to Perth. Reg Yarran Snr said that "My family's country is from Mount Stirling". Reg Yarran Snr's personal history indicates that he never lived in the Karratjibbin claim area. It is relevant to note that Reg Yarran Snr recounted for Dr Shaw a number of "dreaming stories", including the story of the Wagyl which travelled from "Ayers Rock", through Mount Stirling, and through to the Swan River in Perth. Wagyl is a Noongar word for snake, and particularly the serpent creative being.
Dr Shaw interviewed Reg Yarran Snr again on 26 and 27 August 1999 as they travelled to various locations within the Ballardong claim area. The interviews were focussed on Reg Yarran Snr's knowledge of the locations and associated Noongar laws and customs in the form of stories for those places. The interviews reveal Reg Yarran Snr's strong identification as a Noongar man.
The most significant interview for the purposes of this proceeding is the one conducted by Dr Shaw at Reg Yarran Snr's home on 8 January 2002 together with Glenys Yarran and Reg Yarran Jnr. In the transcript, the words spoken by Dr Shaw are reproduced in bold type, the words spoken by Reg Yarran Snr are reproduced in regular type, the words spoken by Glenys Yarran are reproduced in underlined italics and the words spoken by Reg Yarran Jnr are reproduced in italics. Both Reg Yarran Jnr and Glenys Yarran had considerable involvement in the interview, on some occasions prompting Reg Yarran Snr and on other occasions answering the questions themselves.
In the introduction to the 2002 interview, Dr Shaw stated that the "emphasis of this discussion will be Reg [Snr]'s connections through his mother's line having told me in other sessions about the father's male line of descent and connections to country". It is apparent from the transcript that the interview centred upon one or more genealogies that had been prepared by Reg Yarran Jnr from research conducted of archival material. During cross-examination, Reg Yarran Jnr agreed that, after the Ballardong claim had been filed, he began undertaking research into the Ballardong claim area which, at that time, included the Karratjibbin claim area. Reg Yarran Jnr travelled to Adelaide for that purpose to search for archival materials (including Tindale records) at the South Australian Museum and Adelaide University. The 2002 interview commences with Reg Yarran Jnr saying to his father: "Dad we've got the family tree there". The genealogies (family tree) being referred to during the interview are not in evidence. As discussed below, genealogies prepared by Reg Yarran Jnr were considered by Dr Corrigan in his evidence and found to be unreliable in many respects. Some of the statements made by Reg Yarran Snr in the course of the interview appear to have been prompted by what appeared in the genealogies that had been prepared by Reg Yarran Jnr from research of historical records. Those circumstances diminish the weight that should be attributed to the statements made by Reg Yarran Snr during the interview.
After Reg Yarran Snr confirmed that his father's name was Norman and his mother's name was Beatrice, Reg Yarran Jnr and Glenys Yarran largely took over, stating that the name of Beatrice's father was Fred Winmar and the name of Beatrice's mother was Julia Penny. Reg Yarran Jnr stated that "her real name was Dynnian". Dr Shaw referred to that name as her Noongar name without contradiction. It is apparent from the transcript that Reg Yarran Jnr and Glenys Yarran pronounced the name as 'Dunnyan', and Dr Shaw asked how the name was spelled. Glennys Yarran spelled out the name for the benefit of Dr Shaw, and Reg Yarran Jnr explained that there is no 'u' in the "Noongar vocabulary". It is significant to note that Reg Yarran Jnr and Glenys Yarran considered that Julia Penny's Aboriginal name was Noongar, and that was not contradicted by Reg Yarran Snr.
The historical evidence, considered later in these reasons, indicates that Beatrice's biological father was not Fred Winmar but was a man named Toby (Nimmo) Williams, who was Julia Penny's first husband. Fred Winmar was Julia Penny's second husband and Beatrice's stepfather. Toby (Nimmo) Williams is not referred to in the interview with Dr Shaw, suggesting that, at that time, the Yarran family were not aware of him.
The interview continues for a considerable period of time with Glenys Yarran and Reg Yarran Jnr answering the questions relating to the family tree on Reg Yarran Snr's mother's side. After a while, Dr Shaw asks Reg Yarran Snr about his mother's (Beatrice's) country and the following exchange occurs (the words spoken by Dr Shaw being marked in bold type):

[733]

The above passage is significant because Reg Yarran Snr stated that his mother's country is Karlamaya country. However, he does not know where his mother was born, and does not explain why he believes that her country is Karlamaya country. The historical evidence considered later in these reasons indicates that Beatrice was born in Kellerberrin, which is in Ballardong country to the west of the Karratjibbin claim area. In the interview, Reg Yarran Snr does not identify what he understands to be Karlamaya country, although there is a hint that he considers the country to be between Kellerberrin and Southern Cross. At the time of the interview, Reg Yarran Snr was a named applicant on the Ballardong claim which, at that time, covered the Karratjibbin claim area. The Ballardong claim was brought on behalf of a claim group who identified themselves as the Ballardong people, a sub-group of Noongar peoples. There is no discussion in the interview of how Reg Yarran Snr reconciled being a named applicant on a claim that identified the area surrounding Southern Cross as Ballardong (Noongar) country and, at the same time, identifying the area as Karlamaya country. It is also significant that Julia Penny's Aboriginal name, Dynnian (or Dunniyan), is said to be a Noongar name and she was born in Noongar country, in Gnowangerup.
It is relevant to note that Reg Yarran Snr does not use the name 'Karratjibbin' to describe his mother's country (and, in these interviews, never uses that name). Rather, he refers to Karlamaya country. Indeed, the word 'Karratjibbin' is never used during the interview. The word is not used to refer to the Aboriginal people who hold rights and interests in the western part of the trial area. Nor is there any reference to 'Karratjibbin Hill' as the location of an important spiritual site.
A little later, Dr Shaw asks about Julia Penny's parents. It is apparent from the transcript of the interview that the questions are directed to the genealogy that had been prepared by Reg Yarran Jnr (referred to as the "family tree"). Initially, Reg Yarran Snr identifies Julia Penny's parents as "Annie" and "Billy". After that, most of the answers are given by Glenys Yarran and Reg Yarran Jnr, rather than Reg Yarran Snr. The following exchange occurred (again, with Dr Shaw's words reproduced in bold type, Reg Yarran Snr's words reproduced in regular type, Glenys Yarran's words reproduced in underlined italics, and Reg Yarran Jnr's words reproduced in italics):

[735]

It is apparent from the foregoing that the information concerning Julia Penny's parents had been obtained from historical research, not through oral family history. Reg Yarran Jnr states that they had been unable to find any forebears earlier than Billy and Annie. Reg Yarran Jnr and Glenys Yarran made statements to the effect that Julia Penny's father, Billy Yambinut, "came from Southern Cross". No basis for that statement is given. Reading the transcript as a whole, it appears that the information was based on a combination of documentary research and speculation. It is not based on oral family history. The above passage contains further speculation. Glenys Yarran stated that Annie Donald's real name was "Donaldson", apparently on the basis that "there's Donaldsons up in that area" (Southern Cross). The statement that Annie Donald's real name was "Donaldson" has no foundation. It was not repeated by Glenys Yarran when she gave evidence at trial. I place no weight on it.
Although Glenys Yarran gave evidence at the trial, she did not refer to Billy Yambinut. Reg Yarran Jnr also gave evidence at the trial, but his evidence concerning Billy Yambinut was inconsistent. In his first witness statement, Reg Yarran Jnr stated that he claimed his "Karratjibbin heritage" through his ancestor Toby Williams who was the father of Beatrice Winmar, rather than through Julia Penny who was the mother of Beatrice Winmar (although later in the statement he confusingly described "Polly" and Billy Yambinut as "our 2 main ancestors"). Similarly, in his third statement, Reg Yarran Jnr stated that "my ancestor Billy Yambinut" is part of the country at "Karratjibbin Hill" but provided no basis for that belief. The failure of Reg Yarran Jnr to give evidence at the trial as to the basis of his belief that Billy Yambinut came from Southern Cross, and the inconsistency of his evidence concerning the origin of any rights and interests in the Karratjibbin claim area, diminish the weight that I am prepared to give to these passages in the interview.
Later in the interview, Dr Shaw asks Reg Yarran Snr about contact he had with "some old Kalamaia men who lived around Badjaling" who helped "bring you up and taught you things". The following exchange occurred with respect to Percy Carnie (Carney):

[739]

In the above passage, Reg Yarran Snr says that Don Roundhead is his uncle and is his mother's (Beatrice) cousin. However, the basis for that statement appears to be the genealogy prepared by Reg Yarran Jnr. It is apparent from the transcript that Reg Yarran Jnr takes Dr Shaw through the genealogy, pointing out the relationships shown on the genealogy. It is apparent that the genealogy depicts Don Roundhead's mother, Eva, as Julia Penny's sister, and thereby depicts that Don Roundhead is Beatrice's cousin. It is significant that Reg Yarran Snr does not state that Don Roundhead told him that his mother, Eva, was Julia Penny's sister. It appears that the belief that Eva was Julia Penny's sister comes wholly from the historical research conducted by Reg Yarran Jnr. As discussed later in these reasons, the historical evidence contradicts that belief and indicates that Reg Yarran Jnr's research involved the misinterpretation of historical documents.
In the above passage, Reg Yarran Jnr states that Don Roundhead called Beatrice "Choogan". Later in the interview, that statement was repeated by Reg Yarran Snr. Accepting the possibility that Don Roundhead did call Beatrice "Choogan", I consider that to be an insufficient basis upon which to conclude that there was any direct familial relationship between them. In the above passage, Reg Yarran Jnr stated that "Choogan" meant "sister" in Karlamaya language and that "we know the language". Nell Taylor gave evidence, which I accept, that "Choogan" is the word for sister in the Noongar language, not the Karlamaya language. Ms Taylor referred to the Noongar Dictionary (2nd ed, Whitehurst, 1997) which gives djookin as the word for sister, whereas the Kaalamaya Dictionary (Draft, Hanson, 2012) gives jurtuny, jurtuya or ngalarn as the words for sister. The "Kabboon" vocabulary compiled by Daisy Bates in Coolgardie from Kaddee and another woman named Dharroon similarly gives the word joordoyn for sister. In his evidence at trial, Reg Yarran Jnr did not display any knowledge of the Karlamaya language. As discussed later in these reasons, the historical records indicate that Frank Roundhead's second wife, May, left Frank to live with Percy Carney. As discussed below, Frank Roundhead was Don Roundhead's uncle and adoptive father (after Don Roundhead's biological father, Tom, died). As Ms Taylor observed in cross-examination, Percy Carney's relationship with Frank Roundhead's second wife may provide an explanation for Don Roundhead referring to Beatrice as "sister".
Later in the interview, Reg Yarran Snr told Dr Shaw that he learned about certain significant sites near Mount Jackson (within the Karratjibbin claim area) from Don Roundhead. Reg Yarran Snr said that Don Roundhead spoke about the sites when he was speaking to young men near Badjaling. Reg Yarran Snr was a small boy at the time, but he was present with his mother and father when Don Roundhead was speaking. Reg Yarran Snr said that Don Roundhead visited his parents from time to time, but would then return east (to Karlamaya country).

[743]

The evidence of the Cooper respondents demonstrates that they identify themselves as Western Desert people who speak the Wongatha language and consider themselves to be part of a broader grouping of Wongatha people or "Wongi". Unsurprisingly, in their evidence the Cooper respondents did not refer to the eastern part of the trial area as an "interstitial zone". They expressed the belief that Wongatha people had occupied the eastern part of the trial area since prior to European settlement. There is no doubt in my mind that the Cooper respondents grew up being told by members of their family that the area surrounding Kalgoorlie and Coolgardie, and east to Gindalbie, was "their" country. There is also no doubt in mind that the Cooper respondents sincerely believe that that the area surrounding Kalgoorlie and Coolgardie, and east to Gindalbie, was "their" country. However, a significant issue that arises is the basis for that belief.
The Marlinyu Ghoorlie applicants contend that many Western Desert people possess knowledge of the sacred places and stories of the eastern portion of the trial area because, prior to European settlement and continuing after that time, the Karlamaya Kapurn people and neighbouring Western Desert people participated in shared ceremonies within the eastern portion of the trial area. The Marlinyu Ghoorlie applicants contend that, following the Goldrush and resulting influx of European people, some neighbouring Western Desert people migrated into the trial area, including particularly to Kalgoorlie or surrounding areas.
Although Gary Cooper is the youngest of the Cooper respondents, he took a lead role in giving evidence in support of the claims being made by the Cooper respondents. His witness statement was the lengthiest, and he gave evidence on country about significant locations (whereas neither of his older brothers gave evidence on country). The reason for that was explained by Norman and Victor Cooper in their evidence.
In his witness statement, Norman Cooper Jnr said:

[748]

Gary Ashley Cooper made a statement dated 27 September 2023, which was tendered in evidence in a revised form dated 12 October 2023. He gave evidence at the Kalgoorlie Town Hall on 18 October 2023. He also gave evidence at certain sites in the trial area: on 13 October 2023, at a site identified as a meeting place outside of Coolgardie, and at a site located near the Coolgardie Bluff; and on 17 October 2023, at the Mount Charlotte Reservoir Lookout and at a site identified as a sorry camp in Kalgoorlie. He was cross-examined on each occasion.
Gary Cooper's present residential address is in Kookynie, which is north of Menzies and a considerable distance north of the trial area. Gary Cooper is a person who is knowledgeable in Western Desert law and custom, and who has learned about Western Desert law and custom from his extended family. He appeared to speak the Wongatha language with fluency. He used the language name "Wongatha" as a descriptive name for the Western Desert people to the immediate north and east of the trial area who speak that language, whilst also acknowledging other tribal names for those people including particularly "Nanatjadarra" (being the spelling used by Gary Cooper for the "Ngaanyatjarra" people) and "Tjalkadjara". Gary Cooper holds the belief that the lands and waters of the Wongatha speaking people extend into the eastern part of the trial area as far west as Bullabulling.
Gary Cooper is a well-educated man and, in giving evidence, was both articulate and, at times, forceful. My impression was that those characteristics were the product of Gary's career as an actor. In the main, I considered Gary Cooper to be a sincere witness who sought to give truthful evidence. However, there were certain aspects of his evidence where I considered that his evidence was not credible, and I considered that on occasions he was willing to exaggerate or imagine facts to be true when there was no real foundation for a belief that the facts were true. I formed that conclusion from a combination of the implausibility of the evidence in light of other evidence and the manner in which he answered questions (becoming evasive in his answers and agitated, which was a departure from his usual demeanour and articulation). The aspects of Gary Cooper's evidence that I do not accept are indicated below.
In his evidence, Gary Cooper sought to convey that:

[752]

In his oral testimony, Victor Cooper confirmed that Gary Cooper, and his brother Murray Stubbs, spent a lot of time with their mother, Laurel Johnston, who "would constantly talk about culture". Victor said that Laurel Johnston's mother (Adelaide Johnston) would also be there and that she too "would talk a lot about her culture".
Taking the evidence as a whole (and for the reason explained below), I do not accept that Gary Cooper acquired knowledge of traditional laws and customs from his father. The evidence more strongly supports the conclusion that Gary Cooper principally acquired knowledge of traditional laws and customs from his mother's extended family, and his knowledge is knowledge possessed by Ngaanyatjarra people.
I also do not accept that Gary Cooper learned at a young age that Nada's tribal name was "Bilberri". There is a wealth of evidence, considered below, which indicates that the "Bilberri" tribal name is a recent invention, based upon the second name given to Nada in certain documentary records (Bilbear). I have concluded that Gary propounded that tribal name in his evidence, and claimed to have learned the name when he was young, in an attempt to bolster the plausibility of the Cooper respondents' claim to hold native title rights and interests in the eastern part of the trial area. To some extent, the giving of that evidence undermined the overall credibility of his evidence.
I also consider that Gary Cooper's credit was undermined by another aspect of his evidence. As noted above, Gary Cooper attached to his witness statement a map of the trial area and surrounding areas, with a rectangular area hand drawn on the map in red ink. In his witness statement, Gary Cooper said that he drew the rectangular area on the map on 22 June 2023. He said that the area enclosed by the red rectangle was the area of "my country through Nada". The rectangular area marked on the map was difficult to interpret because it did not consist of a single rectangle. It had other vertical lines which enclosed an area with cross-hatching, which area extended west beyond Coolgardie. Gary Cooper was asked about the area marked with cross-hatching in cross-examination, but his answers were unclear and unsatisfactory. He suggested that he had not drawn the cross-hatched area, implying that somebody else had done so, but then equivocated about that answer. In an effort to clarify the evidence, the following exchange occurred:

[754]

I consider that Gary Cooper was being evasive in answering questions about the map attached to his witness statement. The rectangular area had only been drawn on the map about three months before Gary Cooper first made his written statement (on 27 September 2023) and about four months before he gave evidence (on 18 October 2023). I do not accept that he had forgotten the manner in which the rectangular area was drawn.
Gary Cooper's sister, Maria Bandry, also drew (in blue ink) a rectangular area on a map of the trial area and surrounding areas, to depict the country of Nada Bilbear. Gary Cooper said in cross-examination that Maria drew the area on her map on the same day as Gary (and at the same location), but they did not discuss the areas each of them marked. The rectangular area drawn by Maria Bandry largely coincides with the outer boundaries of the rectangle drawn on Gary Cooper's version (that is, the rectangular area together with the cross-hatched area). In cross-examination, Gary Cooper said that he had never previously discussed with his sister, Maria, what a map of Nada's country would look like. I consider that that answer is not credible. That is for three reasons. First, it is implausible that, in applying to be joined to this proceeding to assert native title rights and interests in an area of land and waters as descendants of Nada Bilbear, the Cooper respondents had not discussed the boundaries of the area that they claim to be Nada's country. Second, each of Maria Bandry and Victor Cooper contradicted that evidence. Maria Bandry said during cross-examination that she had discussed the area of Nada's country with Gary "back in the day". As discussed below, I consider that evidence to be less than fully candid, but it supports the obvious conclusion that the Cooper respondents must have discussed the geographic area that they were claiming to be Nada's country for the purposes of this proceeding. Victor Cooper also agreed during cross-examination that, in recent years, he had had discussions with Gary about the boundaries of Nada's country. Third, the similarity between the area marked by Maria and the area marked by Gary (including the cross-hatched area) is so striking that it is implausible that the two areas were drawn without some consultation between them.
I consider that the evidence given by Gary Cooper concerning the maps containing hand drawn markings reflected adversely on his credit. My impression was that Gary Cooper believed (erroneously) that the claims being made by the Cooper respondents would be harmed if he were to admit that he consulted with his siblings with respect to the boundaries of the area they claimed to be Nada's country, and therefore he was evasive in his answers concerning the creation of his own map and was not being truthful when he said that he did not consult with his siblings about the boundaries.

[760]

Gary Cooper stated that he speaks the Wongatha language, and that the "whole area talks Wongatha language, all up to Warburton way". He said that there are many tribes under the Wongatha language. In his witness statement, Gary Cooper stated that his father did not speak "language" but could understand it. In context, the reference to "language" is a clear reference to the Wongatha language. However, in cross-examination, Gary Cooper contradicted that evidence and said that his father did speak Wongatha. It is difficult to know what to make of that inconsistency. Gary Cooper did not offer any explanation as to why his witness statement contained a clear statement that his father did not speak language. He merely insisted that his father did not speak Wongatha "all the time". Ultimately, it is unnecessary to make a finding whether Norman Cooper Snr spoke Wongatha. The historical evidence discussed below indicates that Norman Cooper Snr's father, Thomas Cooper, spoke only English. However, it is probable that Norman Cooper Snr's mother, Trilby Ashwin, spoke Wongatha. I accept that Gary Cooper's mother spoke Wongatha and that Gary most likely learned Wongatha at home from his mother.
Gary Cooper said that his skin group "is Panaka from my mum's side". Gary explained that his mother's skin group is "Purungu" and his father's skin group is "Karimarra". I infer that Gary Cooper's father's skin group came from his "mother's side", because Gary Cooper also explained that the skin group of Gary Cooper's father's maternal grandmother, Telpha, was "Karimarra". Gary Cooper also said that he has a goanna totem from his mother's mother (Adelaide Johnston), and a kangaroo totem from his father's mother (Trilby Ashwin).
In his witness statement, Gary stated that he grew up in Kalgoorlie until he was about eight years old, when the family moved to Laverton. Gary stated that, although he lived in different places in Western Australia, including Kalgoorlie, Menzies, Laverton, Mount Margaret and Esperance, he grew up mostly on his father's country. I consider that that evidence gives a misleading impression. A clearer picture emerged during cross-examination.
During cross-examination, Gary Cooper's evidence concerning his early life was given in a halting manner, but relevant details ultimately emerged. He initially stated that his family moved from Kalgoorlie to Laverton when he was 11 years old, which contradicted his witness statement (in which he said the family moved from Kalgoorlie when he was eight years old). He then suggested that the family moved from Laverton to Esperance in 1979 when he was in Grade 7, but then accepted that the family moved first from Laverton to Menzies for a few years. That evidence is more consistent with Gary Cooper's witness statement, which states that the family moved to Laverton when Gary was eight years old (approximately 1975). The family then lived in Laverton for a period, and then Menzies for a few years.
After Menzies, Gary initially said that the family moved to Esperance for about one year. However, Gary accepted that the family also lived in Mount Margaret (which is near Laverton) for about a year and Gary attended the Mount Margaret primary school. After Esperance, the family moved back to Menzies for a few years.
Gary Cooper confirmed that his mother's family lived in Laverton and that he would regularly see his cousins, uncles and aunties on his mother's side. The family also saw his father's mother's family (the family of Trilby Ashwin). Gary Cooper confirmed that he spoke the Wongatha language in Laverton (although he said that he had also spoken Wongatha in Kalgoorlie). Gary Cooper also confirmed that his mother's relatives also lived in Menzies, as did his father's mother's relatives, and confirmed that members of his mother's family also lived in Mount Margaret.
After Menzies, the family moved to Coolgardie. At that stage, Gary was about 14 years old. Gary stayed in Coolgardie for one year before moving to Perth to finish his schooling. After Perth (when he was about 17 or 18 years old), Gary moved back to Kalgoorlie for about two years.
Further biographical information concerning Gary Cooper was contained in a biography about him published in June 2017 by the Public Health Advocacy Institute of WA in a publication titled The West Australian Indigenous Storybook Celebrating & Sharing Good News Stories - ... The Goldfields Edition (The West Australian Indigenous Storybook). The biography runs to four pages. It is written in the first person (that is, with Gary Cooper speaking) and contains a large number of biographical facts. At the trial, Gary Cooper was asked about statements in the biography. At first, he was reluctant to admit that the biographical information in the story originated from him and, in my view, was evasive in some of his answers. This can be illustrated by the following exchange:

[762]

However, a short time later he admitted that he was interviewed for the purposes of the biography. He also agreed in cross-examination that most of the factual statements contained in the biography were correct. Having regard to the content of the biography, and his foregoing answers, I consider it probable that the biographical information in the story originated from him. At the trial, I received the biography into evidence on a provisional basis, subject to being satisfied that the document recorded statements made by Gary Cooper. I am so satisfied, and therefore I have treated the biography as being part of the evidence before me.
I do not accept Gary Cooper's evidence that he did not read the biography after it was published. Gary admitted that he was interviewed for the article; the article is written in the first person; the article feature's Gary's photo; and the article includes Gary's personal email address. It is implausible that Gary did not read a draft of the article before it was published or that he did not read the article after it was published.
As discussed further below, the biography contains a statement that Gary Cooper's great grandmother was "from the Muddawonga tribe in the Ngaanyatjarra Lands which is about 100 km's from Kalgoorlie". During cross-examination, Gary Cooper sought to distance himself from that statement, and also suggested that the statement did not refer to Nada Bilbear but to one of his other two great grandmothers. I will return to that issue below. For present purposes, it is sufficient to record that that was the only statement in the biography that Gary Cooper sought to distance himself from. I infer that Gary Cooper's reluctance to admit candidly that the biographical information in the publication originated from him was caused by his unwillingness to admit that the foregoing statement concerning his great grandmother originated from him. I do not accept his evidence in that respect.
In the biography, Gary Cooper described his early schooling years in the following terms:

[771]

It is unnecessary to make any finding whether Gary's father told him the facts concerning Thomas Cooper recorded above, or indeed whether Thomas Cooper was an initiated man. However, I consider it to be improbable that Thomas was a wati for the area around Coolgardie and Kalgoorlie (the eastern part of the trial area) having regard to the historical evidence concerning Thomas Cooper's life, which is summarised later in these reasons. The historical evidence concerning the locations in which Thomas Cooper lived indicates that he did not have any significant association with the trial area until very late in life. If Thomas was an initiated man, the historical evidence suggests that the initiation would have occurred amongst his wife's family, being Pirni / Darlot people. Apart from the evidence given by the Cooper respondents, there is no other evidence suggesting that Thomas Cooper was a wati for the trial area. There is more than a hint in the evidence given by Gary Cooper that the basis for the belief that Thomas was a wati was the fact that Thomas had lost a tooth which had been replaced by a gold tooth and, over time, that fact led to a belief within the family that Thomas was an initiated man. However, the fact that Thomas had lost a tooth, when coupled with the further fact that his tooth had been replaced with a gold tooth, is an insufficient foundation for the belief that Thomas was a wati.
Gary Cooper gave evidence that his grandmother Nada is depicted in a photograph which had been in the Cooper family for a long time. A copy of the photograph was annexed to Gary Cooper's statement. The photograph depicts three Aboriginal women, one of whom appears to be pregnant, and a European man standing behind the women. In his witness statement, Gary Cooper gave evidence that the photograph is from around 1896 and depicts Nada, pregnant with Thomas, and Nada's mother and Nada's mother's mother. In cross-examination, Gary Cooper referred to the photograph as "my family photograph" and stated that the European man was Arthur Hasthorpe. Under further questioning, Gary Cooper was asked whether he had possession of the original of the photograph. Gary Cooper stated that he believed so, and that the original of the photograph had been given to him by his cousin, Evelyn Cooper. Ultimately, a call was made for the production of the photograph. Neither Gary Cooper, nor any of the other Cooper respondents, were able to produce the photograph.
Gary Cooper's evidence that the photograph depicted Nada and Arthur Hasthorpe was contradicted by evidence given by Dr Powell that the same photograph appears in a book titled The Fields: Images of the Kalgoorlie Goldfields, 1890-1910 compiled by Ian Templeman and Bernadette McDonald and published by the Fremantle Arts Centre Press in 1988. The book identifies the photographer as J J Dwyer and states that the photograph is of "Mr Hawkins and Aboriginal women outside the women's house, Kalgoorlie, c. 1900". Mr Dwyer travelled to the Goldfields in 1896 and went prospecting near Coolgardie in order to raise the capital to open a photography studio. In 1900 he opened a studio in Kalgoorlie.
Having regard to the foregoing, I do not accept Gary Cooper's evidence that the photograph had been in the Cooper family for a long time and that he was given the photograph by his sister. That conclusion is also supported by the evidence of Victor Cooper, discussed below, that Gary Cooper showed Victor photographs, purportedly of Nada and/or Thomas, but which had been obtained from a website.
As noted above, Gary Cooper stated that he is "Bilberri" on his father's side, by descent from Nada Bilbear. Gary Cooper stated that he "heard of Bilberri a long time ago", and that he was taught that Nada was from the Bilberri tribe when he was growing up. Gary referred to the Bilberri tribe as the "original tribe of Kalgoorlie". As discussed later in these reasons, the phrase "original tribe of Kalgoorlie" is written on a genealogy sheet recorded by Norman Tindale at the Mount Margaret Mission in 1939. It is uncontroversial that Gary Cooper is aware of the Tindale genealogy, and I infer that his use of that phrase derives from the Tindale genealogy. As also discussed later in these reasons, Tindale ascribed a "Maduwongga" tribal identity to Nada, based on his own supposition.
I do not accept that Gary Cooper heard the name "Bilberri" a long time ago. Gary admitted in his witness statement that the name "Bilberri" was derived from the second name given to Nada in certain documentary records (Bilbear). I infer that the adoption of that tribal name by Gary Cooper (and his brothers Victor and Norman) was done relatively recently in an attempt to bolster the plausibility of the Cooper respondents' claim to hold native title rights and interests in the eastern part of the trial area. The reasons for forming those conclusions are as follows.
First, the historical evidence indicates that it is likely that Thomas Cooper did not know his mother's tribal identity. Thomas was unable to give a tribal identity to Norman Tindale in 1939 and there is no record of Thomas using a tribal identity himself. Accordingly, there was no known tribal identity to be passed down through the family.
Second, Dr Powell reported that, during her 1997-2000 fieldwork in the Eastern Goldfields, she interviewed several descendants of Thomas Cooper in order to compile from them information from their own oral tradition and private records about Thomas and his mother and how they may be related to other families in the Eastern Goldfields. These interviews commenced in November 1998. The people interviewed by Dr Powell included the following descendants of Thomas: June Abdullah (the daughter of Thomas's daughter Lorna); Susan Wyatt (the daughter of Thomas's son Norman Cooper Snr and Betty Lowah); Betty Lowah (Norman Cooper Snr's wife); Milton Cooper (the son of Norman Cooper Snr and Betty Lowah); Victor Cooper (also the son of Norman Cooper Snr and Betty Lowah, and one of the Cooper respondents); Charmaine Cooper (the daughter of Thomas's daughter Bessie). Dr Powell gave evidence that none of the descendants whom she interviewed had personal knowledge of Thomas Cooper and they admitted that they knew little about him. The descendants knew that he was raised by George Astley Cooper and his wife Jessie Cooper (née Hasthorpe) on Gindalbie Station as a member of their family; that he had enlisted in World War I; that he married Trilby Ashwin and then worked as a stockman, miner, and for the Mount Margaret Mission before moving to Kalgoorlie where he died from a heart attack. His descendants recalled that he separated from his wife (Trilby) and children when they were quite young. They recalled that sometime after his death, Trilby re-partnered with a non-Aboriginal man named George Cooper, whom they knew as "Uncle George". Dr Powell surmises that this man was likely the son of George and Jessie Cooper (who raised Thomas Cooper). Based on the interviews conducted during her 1997-2000 research, Dr Powell concluded that at the time that the Central West Goldfields claim was filed in 1998, the descendants of Thomas Cooper had no knowledge of his mother.
Third, Gary Cooper's mother, Laurel Cooper, gave evidence in the Wongatha proceeding on 6 March 2002. During that hearing, she was asked where the country of her husband, Norman Cooper Snr, was. Laurel answered that his country was in the Wutha, around Darlot. Laurel Cooper may have associated the Wiluna / Darlot area as being the country of Norman Cooper Snr because it was the country of Norman Cooper's Snr's mother, Trilby Ashwin. However, even if that is the case, the significance of the evidence is that Laurel Cooper did not identify any country near the trial area as being Norman Cooper's Snr's country and did not refer to any tribal identity for Norman Cooper Snr (and certainly not Bilberri).
Fourth, Gary Cooper's brother, Murray Stubbs gave evidence in the Wongatha proceeding on 10 July 2002. Murray Stubbs's biological father was Laurel Cooper's first husband, Mervyn Stubbs, but Murray gave evidence in the Wongatha proceeding that he never grew up with Mervyn Stubbs; rather, he was raised by Laurel Cooper's second husband, Norman Cooper Snr. In his evidence, Murray Stubbs used the word "dad" to refer Norman Cooper Snr. During cross-examination, Gary Cooper confirmed that Murray was raised by Norman Cooper Snr, that Murray regarded Norman Cooper Snr as his "dad" and that Murray and Gary grew up as brothers. Murray Stubbs gave evidence in the Wongatha proceeding that Norman Cooper Snr was born at Yelma, some 80 or 90 kilometres east of Wiluna. Murray Stubbs also gave evidence that that country belonged to his "dad" (Norman Cooper Snr). Murray Stubbs was asked whether his father, Norman Cooper Snr, belonged to an Aboriginal group, to which he replied that Norman Cooper Snr never mentioned tribal names (such as Wutha or Koara) but referred to being a Darlot Wiluna person. Murray Stubbs said that he went with his father, Norman Cooper Snr, to Wiluna "a handful of times", but that the family mainly travelled in his mother's (Laurel Cooper's) country. Again, Murray Stubbs may have associated the Wiluna / Darlot area as being the country of Norman Cooper Snr because it was the country of Norman Cooper Snr's mother, Trilby Ashwin. However, even if that is so, the significance of the evidence is that Murray Stubbs did not identify any country near the trial area as being Norman Cooper Snr's country, and did not refer to any tribal identity for Norman Cooper Snr (and certainly not Bilberri).
Fifth, the biography of Gary Cooper published in The West Australian Indigenous Storybook in 2017 contains the following statement:

[777]

I consider that the foregoing answers were evasive. They reflected the fact that Gary Cooper was unwilling to admit that he had previously identified his great grandmother as Maduwongga, based upon the Tindale records, and also as Ngaanyatjarra. He attempted to suggest that the person who interviewed him for the biography had made a mistake and that Gary had never read the biography. I do not accept that evidence. I consider that Gary Cooper did not give truthful answers when asked about the biography published in The West Australian Indigenous Storybook, and specifically about the statement concerning his great grandmother. I conclude that, in 2017, Gary Cooper believed that Nada Bilbear's tribal identity was Maduwonnga, no doubt derived from Tindale's genealogical data (and Tindale's supposition), and also ascribed to her a Ngaanyatjarra identity (which reflected his own upbringing amongst his mother's family).
Sixth, on 7 September 2021, Norman Cooper Jnr filed a Form 5 seeking to become a respondent in the Kakarra Part A native title claim (proceeding WAD297/2020). The Kakarra Part A claim concerns land and waters which overlap with the areas claimed by the Cooper respondents to be the country of Nada Bilbear and her descendants. Notably, in the Form 5, Norman Cooper Jnr states that he has rights and interests in the Kakarra claim area by descent from Nada Bilbear, but does not state that Nada Bilbear, or he, is a member of a tribe called "Bilberri". In cross-examination, Norman Cooper Jnr stated that he had no real knowledge of the contents of the Form 5 and that it was provided to him by Gary Cooper for signing. The "contact person" named on the form is Gary Cooper. In cross-examination, Gary said that he had also filed a Form 5 seeking to become a respondent in the Kakarra Part A claim. A copy of that form was not in evidence. I infer that it contained the same information as the form signed by Norman Cooper Jnr.
Seventh, on 28 April 2023, the Cooper respondents filed a concise statement in this proceeding. The concise statement contains the contentions that:

[781]

(a) Gary Cooper said that he knows how to sing "to turn the rain". However, he acknowledged that that is something he learnt from his mother's sister, Budgutha.

(b) Gary Cooper gave evidence about hunting and cooking malu (kangaroo), kalaya (emu), tjilkamarta (echidna), yilpa (goanna), yillin (honey ants) and nganurti (bush turkey) and said that he prepares the food culturally, the way he was taught by his mother and father. However, he acknowledged in cross-examination that all Western Desert people, with whom he is related, prepare the food in the same way.

(c) Gary Cooper gave evidence about collecting traditional foods like karlkur-la (silky pear), ngoodarl (gum), wurlguway (quandong), buddgoobudgoo (bush berries), duddom (little apples), parrka parrka (berries), as he was shown by his mother and father. However, he acknowledged in cross-examination that these foods grew in all of the places that he lived when he was younger, such as Laverton. Gary Cooper first learned about bush tobacco when he was living in Mount Margaret.

(d) Gary Cooper stated in his witness statement that his grandfather, father and aunties would always tell him how to look after sites. During cross-examination, he acknowledged that that statement was incorrect, as his grandfather died before he was born. He said that his aunties who taught him were his mother's "cousin sisters", including aunty Budgutha.

(e) Gary Cooper stated that his knowledge of sites and stories was taught to him by his father and other relatives, including his mother and other elders. During cross-examination, Gary Cooper acknowledged that his father was not the main person who taught him knowledge about sites and stories. Although his evidence was unclear, the substance appeared to be that his father showed Gary sites when Gary was younger, and told Gary to speak to other people to learn more about the sites and stories. Those other people included his mother and his uncles (who are Ngaanyatjarra and Tjalkadjara, and are not descendants of Nada Bilbear). The sites and stories included the wati tjilpi ngangyarini tjukurpa (the story of which goes through Boulder), the Seven Sisters tjukurpa at Seven Mile Hill, just outside of Kalgoorlie, the kalaya (emu) in the sky tjukurpa, the Karlkurla gnamma hole. Gary Cooper stated that he was told about the Seven Sisters tjukurpa by his mother and grandmother, Adelaide (Youdabrough) Johnston, and about the Karlkurla gnamma hole by his uncles.

(f) Gary Cooper stated that Gindalbie is a "big dreamtime place" where there are lot of ochre paintings and law stories associated with the paintings. Gindalbie is outside of the trial area. Gary Cooper stated that his father's uncle, Old Budjerra (whom Gary Cooper referred to as "Old Paddy"), told him about Gindalbie. Gary Cooper did not further explain his father's relationship to Old Paddy, but I infer that Old Paddy was the brother of Trilby Ashwin (as there is no evidence that Thomas Cooper had a brother).

(g) Gary Cooper stated that, at two locations north of Gindalbie (which are relatively close together) there are two sites associated with the Wilrayu tjukurpa. The Wilrayu is an "emu-man", being half bird and half man. The sites are outside of the trial area. However, Gary Cooper stated that the locations are connected to Coolgardie through the tjukurpa, as the Wilrayu travelled to Coolgardie and the surrounding areas. Gary Cooper stated that his father showed him the place, but when he was older, Old Paddy told him about the places. Gary Cooper also referred to a kalaya (emu) kapi tjila (gnamma hole) which is about 10 kilometres to the east of the Wilrayu Dreaming site (and therefore outside of the trial area).

(h) Gary Cooper stated that there are ochre cliffs near Gindalbie Station (which is outside of the trial area). Gary Cooper said that Old Paddy told him about that site.

(i) Gary Cooper stated that there is a place off the Great Eastern Highway (west of Kalgoorlie) where an old fella was buried with full ceremonial spears, and that he was told about that place by his mother's parents.

(j) Gary Cooper referred to certain sites close to Coolgardie. First, he referred to a rock hole in Coolgardie that is connected to the Seven Sisters tjukurpa. In cross-examination, he acknowledged that the site is well known. Second, he referred to a meeting place where "all the tribes would come" for ceremony. Gary Cooper gave evidence at this site on 13 October 2023. He said that his father showed him that place when the family was living in Coolgardie (when he was about 14 years old), but that he asked Old Paddy about the storyline for the place. He explained that "people from the desert would come here for ceremony". Third, he referred to a men's initiation place to the south-west of Coolgardie, which is not used anymore. Again, Gary Cooper said that his father showed him the location when he was about 14 years old. Fourth, he referred to the bluff in Coolgardie where there is a men's initiation cave, which is connected to the Wilrayu story. In his witness statement, Gary Cooper said that "Granny Mimbudoo and Youdabrough" talked about the place because there was a women's site there. Gary Cooper explained that Granny Youdabrough is his mother's mother (Adelaide Johnston). Gary Cooper does not expressly identify Granny Mimbudoo, but I infer that she is his father's mother, Trilby Ashwin. Neither Granny Mimbudoo nor Granny Youdabrough are descended from Nada Bilbear. Gary Cooper also gave evidence at this site on 13 October 2023. He said that the last initiation that happened at the site was a long time ago, but he does not know when that was. Fifth, he referred to the Old Reserve near Coolgardie where the "old people used to come for ceremony and sorry business". Gary Cooper explained that, when he was young, his family brought his mother's mother, Granny Youdabrough, to the site to "do ceremonies and sorry business".

(k) Gary Cooper said that Mount Burges is tjilkamarta (echidna) Dreaming. He said his father spoke about that place whenever they "passed through".

(l) Gary Cooper said that there is a site of the wati goothada Dreaming at the Mount Charlotte lookout in Kalgoorlie. In his witness statement, he explained that the wati goothada were the father and son creators. The father and son walked through the Kalgoorlie area and travelled up to places like Warburton. Gary Cooper said that Uncle Bill Westley (his mother's brother-in-law) taught him about this place. Gary Cooper said that his father showed him a wati rock hole behind Mount Charlotte. Gary Cooper gave evidence at this site on 17 October 2023. However, the evidence was interrupted by a person who was upset at the Court being present at the site. It was agreed that the evidence would be completed at the Kalgoorlie Town Hall. In his evidence-in-chief, Gary Cooper gave evidence about the journey of the wati goothada from Freemantle to Menzies and features of the landscape created on the journey.

(m) Gary Cooper said that there is a wati tjilpi site at the roundabout on Burt Street, Boulder, which is where the wati tjilpi (old man) is ngangyarini (sleeping). He said that his father and Uncle Reg, his mother's brother, told him about this place.

(n) Gary Cooper said that a location in Kalgoorlie is known as Wati Hill. It is the highest point in Kalgoorlie and was therefore an important place for watis. The location is connected to the wati goothada story. Gary Cooper said that his mother, father, aunties and uncles told him about this place.

(o) Gary referred to a number of other significant sites in the eastern part of the trial area, including the Wajine rock hole (where the Wilrayu walked), a kapi tjila in the Gallion area near Coolgardie (which is a minyma goo kapi (women's water hole)), a kapi tjila in Dunnsville near the Coolgardie area, a warda kapi (a water tree) near Broad Arrow and Wati Mirrarringoo (Dead Man's Soak) (which is north of the trial area). However, Gary Cooper did not say who taught him about those places.

[786]

Maria Henrietta Trilby Bandry (née Cooper) made a statement dated 21 August 2023, which was tendered in a revised form and dated 12 October 2023. Maria Bandry gave evidence at the Kalgoorlie Town Hall on 18 October 2023, and at sites throughout the trial area, comprising a site identified as the Seven Sisters rock holes near Coolgardie on 13 October 2023, a site identified as the Seven Sisters rock holes near Kalgoorlie on 17 October 2023, and a site identified as a sorry camp in Kalgoorlie on 17 October 2023. She was cross-examined about the evidence she gave.
In the main, I find Maria Bandry to be a sincere witness who sought to give truthful evidence. I formed the impression that Maria Bandry sincerely believes that the eastern portion of the trial area is "Wongatha country" in respect of which Western Desert laws and customs apply. However, as for her brother Gary Cooper, there were certain aspects of Maria Bandry's evidence where I considered that her evidence was not credible, and I considered that on occasions she was willing to engage in conjecture when there was no real foundation for a belief that the facts were true. I formed that conclusion from a combination of the implausibility of the evidence in light of other evidence and the manner in which she answered questions (on occasions, becoming defensive). The aspects of Maria Bandry's evidence that I do not accept are indicated below.
Unlike Gary and Norman Cooper, who each gave evidence that they learned at a young age that Nada's tribe was named "Bilberri", Maria Bandry gave evidence that she learned growing up that Nada's tribe was the "Bilbearrding" people. I do not accept Maria Bandry's evidence in that regard. As stated in the context of Gary Cooper's evidence, there is a wealth of evidence which indicates that the 'Bilberri' tribal name is a recent invention, and that same evidence demonstrates that the 'Bilbearrding' tribal name is a recent invention. I have concluded that Maria Bandry propounded the 'Bilbearrding' tribal name in her evidence, and claimed to have learned the name when she was young, in an attempt to bolster the plausibility of the Cooper respondents claim to hold native title rights and interests in the eastern part of the trial area. To some extent, the giving of that evidence undermined the overall credibility of her evidence.
I also consider that Maria Bandry's credit was undermined by another aspect of her evidence. As noted earlier, Maria Bandry attached to her witness statement a map of the trial area and surrounding areas, with a roughly rectangular area hand drawn on the map in blue ink. In her witness statement, Maria Bandry said that she drew the area on the map on 22 June 2023. She said that the area she marked was the area of "my country through Nada".
As noted above in the context of Gary Cooper's evidence, Gary also drew (in red ink) a rectangular area on a map of the trial area and surrounding areas, to depict the country of Nada Bilbear. He did so on the same day and at the same location as Maria. Gary Cooper's map differs from Maria Bandry's map in that it has two sections: the first section extends west into the trial area past Kalgoorlie, but ends before Coolgardie; the second section, which is cross-hatched, extends further west to around Bullabulling. I found that Gary Cooper's explanation for the two sections to be unsatisfactory.
Each of Gary Cooper and Maria Bandry said in cross-examination that they did not discuss the areas each of them marked on the maps as Nada's country. Each said that Gary marked his map first and Maria marked her map second. As noted in the context of Gary's evidence, the rectangular area drawn by Maria largely coincides with the outer boundaries of the rectangle drawn on Gary's version (that is, the rectangular area together with the cross-hatched area). In cross-examination, Gary said that he had never previously discussed with his sister, Maria, what a map of Nada's country would look like. As stated earlier, I consider that evidence to be not credible. When asked the same question, Maria said: "No doubt back in the day Gary and I would have talked about our country". I consider that answer to be less than fully candid. I consider it implausible that, in applying to be joined to this proceeding to assert native title rights and interests as descendants of Nada Bilbear, the Cooper respondents had not discussed in some detail the boundaries of the area that they claim to be Nada's country. Further, the similarity between the area marked by Maria and the area marked by Gary (including the cross-hatched area) is so striking that it is implausible that the two areas were drawn without some consultation between Gary and Maria, whether at the time that the maps were being drawn or in the recent past in connection with this proceeding.
I consider that, to some extent, the evidence given by Maria Bandry concerning the maps containing hand drawn markings reflected adversely on her credit. My impression was that she (erroneously) believed that the claims being made by the Cooper respondents would be harmed if she were to admit that she consulted with her siblings with respect to the boundaries of the area they claimed to be Nada's country, and as a result she was less than fully candid in her answers concerning such consultation.

[791]

Maria Bandry said that her mother is Ngaanyatjarra and her "tribal name" is Ngungion. Maria said that her mother was born in the bush near the Mount Margaret area and spent her childhood in the Ngaanyatjarra spinifex area and the Murrin Murrin areas with her parents before being forced into the Mount Margaret Mission at about five years of age. Maria said that her mother's mother was a "full blood spinifex tribal woman with Jibbarree markings" and that her "tribal name" was Yoodarboroo and her English name was Adelaide Johnston. Maria said that she is a member of the Ngaanyatjarra tribe through her mother's side.
Maria Bandry said that she is also a member of the "Tjalkutjarra" tribe (being the spelling used by Maria for the Tjalkadjara people) through her mother's father, whom she described as "full blood", having the "tribal name" Ngayjuju and English name Dibby Davey Johnston. Maria Bandry said that he "was a Wati Boolgar, a big lore man who also had Jibbarree markings". Maria said that he was born in the bush on his country around the Cosmo area.
Maria Bandry said that her skin group is "Panaka" and that she got her skin group from her mother. Maria said that her totem is malu (kangaroo) and that she got that totem from her father, who got the totem from his mother (Trilby), from Wiluna country.
During cross-examination, Maria said that she is a recognised native title holder for Ngaanyatjarra country (her mother's mother's country), Tjalkadjara country (her mother's father's country) and Pirni / Darlot country (her father's mother's country).
During cross-examination, Maria confirmed that she initially grew up in Kalgoorlie, and then her family moved to Laverton for about 12 months, Esperance for 12 months, then Menzies, then Mount Margaret and then Menzies. Maria also confirmed that, during the time that her family lived in Laverton, Menzies and Mount Margaret, they were in the company of her mother's cousins and family. Maria did not otherwise provide information about the places she has lived during her life.
In cross-examination, it was put to Maria that she grew up mostly with her mother's family. Maria disagreed, saying that she "grew up both sides". When asked who she grew up with from her father's side, Maria immediately answered "all the Ashwin children". I understand that answer to refer to her father's mother's family (who are not descendants of Nada Bilbear). When asked whether she grew up with any family that were descendants of Nada, her answer was uncertain and limited. At first, Maria said that "Yes, we would have had - I would have had contact with my descendants of Nada, yes" and, when pressed, proffered the names of two cousins, Dorothy Cooper and Sharmaine Thomas. Although Maria's evidence lacked biographical detail, my impression from the whole of her evidence is that her immediate family was raised principally with her mother's family and with her father's mother's family, not with her father's father's family.
In the course of her evidence, Maria used a number of words which I inferred were words from the Wongatha language. Maria said that "Wongatha is a well-known language for the area around my country, and is used here in Nada's country". The extent to which Maria spoke Wongatha fluently (as opposed to knowing certain words) was not clear from her evidence, and she did not say where and from whom she learned words in the Wongatha language.

[792]

As noted above, Thomas Cooper died before Maria Bandry was born. Maria gave evidence that her father, Norman Cooper Snr, told her about Thomas. The evidence given by Maria about Thomas, and his mother Nada Bilbear, is similar to the evidence given by Gary Cooper, although there is one significant difference. As noted earlier, Gary stated that he was told that Nada's tribe was the Bilberri people. Maria stated in her witness statement that she learned growing up that Nada's tribe was the Bilbearrding people. During examination-in-chief, Maria said that Nada's tribe was the Bilberri tribe, but during cross-examination she reverted to saying that Nada's tribe was the Bilbearrding tribe.
Maria Bandry stated that her father told her that Thomas Cooper was born at Kanowna. As noted in the context of Gary Cooper's evidence, in the historical record, Thomas's place of birth is given alternatively as Kanowna and Gindalbie. The inscription on Thomas's gravestone in the Kalgoorlie cemetery states that he was born in Gindalbie. Gary Cooper was cross-examined about the inscription and gave evidence that the gravestone was arranged by his sister, Sue Wyatt, and that Sue discussed the gravestone with Gary and the whole family. Maria was also asked about the gravestone and said that she would have been involved in making that gravestone. That evidence indicates that there was a consensus amongst the Cooper family that Thomas was born in Gindalbie. Maria maintained in her evidence that Thomas was born in Kanowna. My impression was that she did so because Kanowna was within the trial area whereas Gindalbie was not. Ultimately, Thomas's birth place is not determinative of native title rights and interests.
Maria said that her father told her that Thomas's tribal name was Guddardee, which means teeth, and that he was a wati (in Maria's words, a "lore man"). Maria said that her father said that Thomas had a missing tooth (which was later replaced with a gold tooth), which was a sign of being a wati. As stated earlier in the context of Gary Cooper's evidence, it is unnecessary to make any finding whether Maria's father told her that Thomas was a wati, or indeed whether Thomas was an initiated man. As stated earlier, whether or not Thomas was initiated, I consider it to be improbable that Thomas was a wati for the area around Coolgardie and Kalgoorlie (the eastern part of the trial area) having regard to the historical evidence concerning Thomas's life, which is summarised later in these reasons. The historical evidence concerning the locations in which Thomas lived indicate that he did not have any significant association with the trial area until very late in life. If Thomas was an initiated man, the historical evidence suggests that the initiation would have occurred amongst Trilby Ashwin's family, being Pirni / Darlot people. Apart from the evidence given by the Cooper respondents, there is no other evidence suggesting that Thomas was a wati for the trial area. As stated in the context of Gary Cooper's evidence, there is more than a hint in the evidence given by Maria that the basis for the belief that Thomas was a wati was the fact that Thomas had lost a tooth which had been replaced by a gold tooth and, over time, that fact led to a belief within the family that Thomas was an initiated man. However, the fact that Thomas had lost a tooth, when coupled with the further fact that his tooth had been replaced with a gold tooth, is an insufficient foundation for the belief that Tom was a wati.
Consistently with the historical record, Maria gave evidence that Nada was in a relationship with a white man, Arthur Hasthorpe, who built Gindalbie Station. Maria said that she was taught that Thomas Cooper was also brought up by George Astley Cooper whose wife, Jessie, was the sister of Arthur Hasthorpe. Maria also gave evidence that:

[799]

The lengthiest section of Maria Bandry's witness statement was headed "Laws and customs about country". That section of the witness statement contains information about: the natural resources of the country; the rules for looking after country; the rules for going onto someone else's country; certain social rules relating to marriage, adoption and funerals; and information about significant sites and traditional stories and ceremonies associated with those sites.
It was not always clear from the witness statement whether the matters being referred to were specific to the area that the Cooper respondents describe as "Nada's country", or whether the matters related to "Wongatha country" more generally. It was also not always clear whether Maria Bandry had learned the information from her father, her mother or other family members. Nevertheless, an examination of the witness statement suggests that Maria learned much of the information in the witness statement from her mother and her mother's family and from her father's mother. Each of the topics is addressed in turn.
In relation to the use of the natural resources of the country, it is not clear that Maria Bandry is speaking specifically about Nada's country or Wongatha country more generally. Maria acknowledged that "a lot of the stories are shared around here, no matter if you're in Kalgoorlie or from another tribe nearby". At least one of the stories concerned a time when Maria was 12 or 13 years old and the family was living near Menzies. Nevertheless, Maria attributed her knowledge of the resources of the country to both her mother and her father. She gave evidence about learning how to hunt and cook kangaroo, emu and goanna and getting honey ants, and how to grind the seeds of tjanpi (spinifex) to make flour. Maria said that she was taught by her father and mother to take only what you need as food is scarce and you want food to multiply. Maria said that she was also taught (it is not clear by whom) that children are not to eat the tjilkamarta (echidna), but that adults are permitted to do so. Maria also spoke about the use of natural resources for medicinal purposes, including the use of smoke to treat hives, chickenpox and psoriasis, the use of sandalwood nuts to treat headaches, and the use of purple flowers on a flannel bush (called jungee) to treat toothaches.
In relation to looking after country, Maria Bandry said that she comes back to Nada's country to make sure it is preserved and looked after. She said that she will pick up rubbish, clean the area up and clean out rock holes. Maria said that her father taught her to place a stick across the rock holes for the animals so they can get to the water.
In relation to the rules about going onto someone else's country, Maria Bandry said that the right thing to do is to tell the traditional owners where you are going, which is "paying respect".
In relation to social rules, Maria Bandry said that:

[806]

(d) Maria gave evidence in her witness statement about a site near Coolgardie that is a damaged kapi tjila (rock hole) that is part of the Seven Sisters tjukurpa. Although the place is a women's site, Maria said that her father told her about the site. She also said that her granny used to go here to dig the maku (grub) from the bardi trees.

(e) Maria gave evidence in her witness statement about a women's ceremony area near the Coolgardie bluff. Maria also gave evidence at this site on 13 October 2023. She said that the site is part of the Seven Sisters Dreaming and that the site is where women would do tjina (foot) kantula (dancing) "back in the day". She said that women would come here "back in the day" to do ceremonies, including her grandmother Yoodarboroo (her mother's mother). In giving evidence at the site, Maria reiterated that her grandmother was a Ngaanyatjarra woman from "the Spinifex Country" who came to this area (which was not her country) for ceremonies and then returned to her own country. Although Maria said that she learned about the site from her father, her mother and her mother's mother, I gained the impression from the course of evidence that the information concerning the site and the associated ceremony (being a women's ceremony) principally came from Maria's mother and her mother's mother.

(f) Maria gave evidence in her witness statement about a site that was to the north-west of Coolgardie where there is a kapi tjila (rock hole) and a women's site called minma (woman) goongar (young girl). Maria also gave evidence at this site on 13 October 2023. Maria said that people would travel through that place to collect water in their travels, and women would come to get water for the men. She said that her father taught her about the site. At the site, Maria said that the Seven Sisters tjukurpa "comes through here", explaining that the Seven Sisters story comes from Fremantle and goes to Warburton. In cross-examination, Maria agreed that the Seven Sisters story is a shared story that travels into South Australia and into New South Wales.

(g) Maria gave evidence in her witness statement about a location behind the Kalgoorlie Super Pit where a yiddgarrbree ceremony (which she described as a wake) was held for her cousin (her mother's nephew) in 2008. Maria also gave evidence at that location on 17 October 2023. Maria described the ceremony in her statement and enacted the ceremony with the assistance of her brother, Gary Cooper, at the location. Maria said that "the whole family told me about the yiddgarrbree, including my father, mother and aunts and uncles. All Wongatha and all Bilbearrding know about the yiddgarrbree". There was a significant inconsistency in Maria's evidence in her witness statement concerning the ceremony and her oral testimony at the location where the ceremony was enacted. In her witness statement, Maria said that you can only do this wake "in this country here" (which I infer is a reference to "Nada's country") if you have a connection to "this country" or have a family connection to "this country". Maria explained that the wife of her cousin who died was from Coonana, which is approximately 170 kilometres east of Kalgoorlie. Maria described Coonana as Tjuntjuntjara country, not Bilbearrding country. In oral testimony, Maria said that the ceremony could be conducted in Nada's country because the Coonana Tjuntjuntjara are the custodians for the tjukurpa. Maria Bandry's evidence concerning the yiddgarrbree ceremony again appeared to involve an amalgamation of traditional beliefs with Christian beliefs. Maria gave the following evidence at the location at which the ceremony had been performed:

[810]

Norman Cooper Jnr was born on 9 April 1957. His father was also named Norman Cooper and, in his witness statement, Norman referred to his father as Norman Cooper Snr. Norman Cooper Jnr's mother was Betty Lowah. Norman said that she was Mirning (from South Australia) on her mother's side and Wongatha (from Kookynie) on her father's side. Kookynie is some 200 kilometres north of Kalgoorlie and outside of the trial area.
Norman Cooper Jnr said that he is a member of the "Bilberri tribe" through his father Norman Cooper Snr who was the grandson of Nada Bilbear. Norman said that "our main country is the Kalgoorlie, Boulder, Coolgardie, Kanowna, Gindalbie areas, out to Bullabulling in the west". In oral testimony Norman said that he is also Wongatha. He said that "anywhere from Kalgoorlie up north" is Wongatha. Norman said that he also has links to his mother's country around Kookynie. Norman said that the country of his father's mother (Trilby Ashwin) goes out to Wiluna.
Norman Cooper Jnr said that his father had a woodworking shop in Menzies for a while, around the late 1970s to early 1980s and that he made things like boomerangs and spears. Norman said that his father was also a miner for many years, as was his grandfather, Thomas Cooper.
Norman said that his father and mother separated when he was around five years old. His father went on to have a new partner not long after that, being Laurel Johnston. Norman said that his sister, Maria Bandry, and brother, Gary Cooper, are the children of Norman Cooper Snr and Laurel Johnston.
Norman Cooper Snr died in 1992 when Norman Cooper Jnr was 35 years old.
Norman Cooper Jnr said that, in 1961-1962, when he was about four years old, he lived in Coolgardie with his mother and his brother. They lived near the bluff and, on the way to school, they followed a fence line that ran next to the bluff. Norman said that, as kids, they were told never to go to the bluff because men's business happens there and that it was out of bounds. Norman said that they never dared to venture past the fence to go anywhere near the bluff because they were always taught to follow the rules to the law.
Norman Cooper Jnr said that, when his parents separated (when he was around five years old), he was placed with his siblings to live at Kurrawang which is about 20 kilometres west of Kalgoorlie. When Norman was six or seven years old, his sister, Susan, his brother, Tommy, and he went to live with their grandmother Trilby (Thomas Cooper's wife, Trilby Ashwin). Norman said that they lived in various places in Kalgoorlie, including on Varden Street, Hay Street and Egan Street. Norman remembered that "traditional Wongi people" would often come and stay in Trilby's backyard. In oral testimony, Norman referred to them as "Wongis from the bush". Some had knocked teeth and initiation scars. Norman remembered these people included Snowy Ngungranoo and Jimmy Humpyback. Norman said that Snowy Ngungranoo's name was actually Nowy, but he always thought it was Snowy because that is how he heard it. Norman said that Snowy Ngungranoo was a "witch doctor" and a "featherfoot" and would do lots of healing of people. Norman said that, apart from "our regular family mob", there were lots of people coming into Trilby's backyard and they often stayed days at a time. Norman said that "our grandmother, parents and uncles and aunties" would go out and sit with them and talk late into the night. Norman said that the children were told that they couldn't go out back when cultural things were going on.
Norman Cooper Jnr said that, in the early 1970s, when he lived on Hay Street, the area was all bush. It was possible to find big goannas and even old boomerangs. Norman remembered that it was possible to see mallee fowl everywhere. Norman said that, from 1970 to 1972, when he was between 13 and 15 years old, he went camping with his brothers and male cousins. They camped at Kanowna Station either at 9-Mile, near the dam, or a lake called King of the West which was about one kilometre south of the Kanowna homestead. Norman remembered that there were always plenty of twenty-eight parrots, cockatoos and sunbirds when they camped. They used to use a shanghai to kill the birds and then eat them. They also caught lizards, including goannas.
Norman Cooper Jnr said that he was expelled from school at around 15 years old. Norman explained that "a kid in high school called me a coon, so I punched him" and he was expelled for that. Norman said that he has worked ever since.
Norman Cooper Jnr said that, after he was expelled from school in 1972, he left Kalgoorlie to chop sandalwood with his "uncle Merve". Norman did not explain his relationship with "uncle Merve". However, Victor Cooper also gave evidence that he worked with "Merv Stubbs" collecting sandalwood, and I infer that they are the same person. Mervyn Stubbs was the first husband of Laurel Johnston (who was Norman Cooper Snr's second wife, and the mother of Gary Cooper and Maria Bandry). Norman said that, at this time, he lived with Uncle Merv in a shack made of tar drums at a location north of Kalgoorlie (marked on a map as between Kalgoorlie and Ora Banda). Norman said that they used to camp out while they collected sandalwood. Norman identified the location where they camped as north-east of Menzies (outside of the trial area). Norman remembered cooking up the seeds of the sandalwood in the ashes to help with colds.
Norman said that, after starting in Goongarrie, he went up miles further to Morapoi Station to work with his uncle. Moropoi Station is near Kookynie, north-east of Menzies.
Norman said that he worked at Kanowna Station around 1974 or 1975. Norman went out kangaroo hunting while on the Station using kangaroo dogs. He said that, after Kanowna, he moved to Norseman, Kambalda, Perth and then, in about 1977, to Laverton. Since moving to Laverton, Norman has mainly worked in the mining industry. Since 1989, Norman has been supervising in the mining industry, first as a shift boss, and then as a foreman.
Norman Cooper Jnr came back to Kalgoorlie from Kambalda in 1993. Norman said that, when he came back to Kalgoorlie, he started doing a lot of cultural activities again. He cooked a lot of kangaroo to cater for functions with his wife and aunties. This included NAIDOC functions. He also used to take school kids out near the Kalgoorlie Consolidated Gold Mines to teach them how to eat bardi.
Norman said that, in the early days of native title (around 1993), he was the chairperson of the Goldfields Land Council. This was when he was employed as the underground shift supervisor for Western Mining at Kambalda.

[811]

Thomas Cooper died before Norman Cooper Jnr was born. Norman said that he learned about Thomas from Thomas's wife (Norman's grandmother), Trilby Ashwin. As noted above, and as stated by Norman in his witness statement, he was brought up by Trilby. Norman explained that "Trilby's people are from Wiluna". Norman said that Trilby was like his mother and he lived with her until he was about 12 years old. Trilby died in 1986 at about 85 years old. Norman said that Granny (Trilby) was a very good lady and that she was always looking after other people.
Consistently with the historical record, Norman Cooper Jnr said that he was taught that, after Thomas was born, Thomas's father, Arthur Hasthorpe, left and Thomas was brought up by George Cooper Snr. Norman said that he was not taught when he was growing up that Thomas had siblings. This suggests that Thomas's wife, Trilby, had no knowledge that Thomas had siblings. Norman said that he was told by "Granny's relative, Lena Judd", when he was 14 or 15 years old, that Nada Bilbear had other children who were "full blood". Lena Judd is not otherwise referred to in the evidence. It is possible that Lena Judd is Thomas and Trilby's daughter Lena (referred to in the evidence as Lena Gerardi), but it would be surprising if Norman referred to his Aunt Lena as "Granny's relative". Tindale's genealogy sheet 147 taken at Mount Margaret in 1939 (which is discussed in more detail later in these reasons) records that Nada had two other children with an unidentified "full blood" Aboriginal man, but both children were deceased.
Norman Cooper Jnr said that, when he was in his mid to late thirties, he was told that Thomas "went through the law". Norman said that he was working at the Goldfields Land Council at the time and there were some native title claims being made. Norman could not remember who exactly told him that Thomas went through the law, but he remembered talking about his family history with family members and it was at that time that he learned that Thomas went through the law. As stated in the context of Gary Cooper's evidence, it is unnecessary to make any finding whether Thomas was an initiated man. It is significant, however, that while Norman learned about Thomas from his grandmother Trilby, he was not told by Trilby that Thomas was an initiated man. As stated earlier, whether or not Thomas was initiated, I consider it to be improbable that Thomas was a wati for the area around Coolgardie and Kalgoorlie (the eastern part of the trial area) having regard to the historical evidence concerning Thomas's life, which is summarised later in these reasons. The historical evidence concerning the locations in which Thomas lived indicates that he did not have any significant association with the trial area until very late in life. If Thomas was an initiated man, the historical evidence suggests that the initiation would have occurred amongst Trilby's family, being Pirni / Darlot people. Apart from the evidence given by the Cooper respondents, there is no other evidence suggesting that Thomas was a wati for the trial area.

[817]

The foregoing evidence was received without objection, but I place little weight on it. The statement that people from the Kalgoorlie area were considered to be "Wongatha people" or "Wongis" is too vague and sweeping to be given any weight. The statement begs the questions: considered by whom or which community? No proper basis for the generalisation was given. So too, the statement that "you were either Wongi or Yamatji or Noongar" is too vague and sweeping to be given any weight. It was put to Norman in cross-examination that his reference to "Djaburn" was a mispronunciation of the name 'Kapurn', but he neither agreed or disagreed with that suggestion. He was asked in cross-examination whether he had ever adopted the name "Maduwongga". His answers were vague, but my impression was that Norman agreed that he may have adopted that name at some point in the past.
As noted earlier, in his witness statement Norman Cooper Jnr said that he is a member of the "Bilberri tribe". He did not otherwise give evidence about that name in his witness statement. It was put to Norman in cross-examination that the name "Bilberri" has only recently been used. Norman disagreed, saying that the name "was around years ago when we were younger". For the reasons given in the context of Gary Cooper's evidence, I do not accept Norman's evidence that he first heard the name "Bilberri" when he was young. Indeed, I consider that he was not being truthful when he gave that answer.
In addition to the reasons given in the context of Gary Cooper's evidence, Mr Leo's second report records that he interviewed the Cooper respondents in mid-March 2023. Relevantly, Mr Leo reports that Norman Cooper Jnr said that he was taught that Thomas Cooper said that his mother (Nada Bilbear) was from the "original tribe of Kalgoorlie", which is a reference to the Tindale genealogy sheet 147. Norman said that "this proves his family's connection to Kalgoorlie and surrounds". Norman also said that, in the period after 1972, various people in the community were talking about where they were from and were asking "what tribe you from". Norman told Mr Leo: "Wongatha people is what we used at the time". Norman referred to the fact that there were "a whole heap of little tribes" but made no reference to the name "Bilberri".
During cross-examination, Norman was asked about the Form 5 filed by him in the Kakarra Part A native title claim. Norman appeared to be unfamiliar with the document but agreed that he had signed it. He said that he spoke to his brother and sister, Gary Cooper and Maria Bandry, about filing the document. Norman agreed that Gary asked him to sign the Form and he did so without fully understanding the document.

[821]

In oral testimony, Victor said that Humpyback and Old Snowy Ngungranoo told them cultural stories.
In about 1966, he and his siblings Susan and Milton Cooper went to live with their father. Victor said that his brothers Norman and Tommy stayed at Trilby's, although Norman also came across to live with their father a bit later. Victor lived with his father until he was about 14 years old.
Victor Cooper said that, in the late 1960s, his father Norman Cooper Snr worked at Yundaga Station "building fences and jobs like that". Yundaga Station is near Menzies. Victor said that his father was in and out of work, but would spend long stints working underground in mining and on stations. Victor said that, whenever his father was not working, he spent a lot of time in the bush. In cross-examination, Victor explained that his father went out bush both to prospect for gold and to hunt. Victor also clarified that, in that period (from 1966 to about 1972), he lived with his grandmother Trilby when his father went away to work or out bush.
Victor left school in 1972 when he was 14 years old and went up to work at Kookynie, north-east of Menzies, to "collect sandalwood with Merv Stubbs". Although not stated by Victor, I understand that this was a reference to Mervyn Stubbs, the first husband of Laurel Johnston, who was Norman Cooper Snr's second wife (and the mother of Gary Cooper and Maria Bandry).
Victor Cooper said that, when he was young, his family also visited Menzies for holidays. When they went to Menzies, they stayed with Bingy Lynch, a senior Wongai man, and his wife and family. Victor said that Mr Lynch and his wife would "talk to us about Aboriginal culture and tell us stories". Victor said that, on a couple of occasions, Mr Lynch also showed "us kids" how to make spears while sitting outside by the fire.
Around late 1974 and early 1975, Victor worked out at Jeedamya Station (north of Menzies) for eight months. Victor then moved to Geraldton and lived there from 1975 until 1981. He met his wife in Geraldton and they married in 1984. In 1981, Victor moved to Laverton and spent two years there working underground. During this time, Victor was the chairperson of the Wongatha Wonganarra Aboriginal Corporation. In 1983, Victor moved to Perth and lived there for five years working on power lines. In 1988, Victor moved back to Kalgoorlie and continued to work on power lines for another nine years.
Victor said that, since coming back to Kalgoorlie from Perth, he and his wife have been heavily involved in community events, including NAIDOC carnivals.
Between 2000 and 2006, Victor spent five years as a prison support officer. Between 2006 and 2020, Victor spent 14 years working on the mines. Victor now works at TAFE, teaching Aboriginal children.

[822]

Victor Cooper gave evidence about his grandfather, Thomas Cooper, and his great grandmother, Nada Bilbear. In his evidence, Victor did not always state the source of the information he conveyed. However, he referred expressly to his grandmother Trilby Ashwin (Thomas Cooper's wife), and he also referred to his "four aunties", being Thomas and Trilby's daughters: Lena, Vera, Bessie and Lorna.
In his written statement, Victor Cooper said that Trilby was from the Darlot people, of the area from Leonora up to Wiluna. Victor gave the following evidence without objection: "They named the hostel in town after Trilby Cooper because even though she was from Wiluna, Kalgoorlie was always her husband's country". I place little weight on that evidence as it expresses an opinion about the motivations of unidentified people in naming a hostel in Kalgoorlie after Trilby. Victor said that Trilby was a carer up at Mount Margaret Mission and that she cooked at the mission and on the mines. Victor also said that Trilby looked after people in Kalgoorlie "because it is Tom's country". Victor said that Trilby looked after visitors from out bush, such as Laverton. Victor said that there were always "traditional people" staying with her who "came from out east and north, but not west".
Victor said that his four aunties also told him about "my family" (referring, I infer, to his grandfather, Thomas, and Thomas's mother, Nada). Victor said that they always talked about the Coopers and talked about Nada. I place little weight on that evidence. As noted earlier, nothing is known about Nada Bilbear's origins, including her family or country. There is no evidence (oral or documentary) as to when and where Nada died, or the places she lived before she died. Further, as noted earlier, Dr Powell interviewed several descendants of Thomas during her 1997-2000 fieldwork in the Eastern Goldfields in order to compile information from their own oral tradition and private records about Thomas and his mother. The people interviewed by Dr Powell included June Abdullah (the daughter of Thomas's daughter Lorna) and Charmaine Cooper (the daughter of Thomas's daughter Bessie), as well as Norman Cooper Snr's wife, Betty Lowah, and Norman Cooper Snr's children Susan Wyatt, Milton Cooper, and Victor Cooper. Dr Powell gave evidence that none of the descendants whom she interviewed had personal knowledge of Thomas Cooper and they admitted that they knew little about him, and they had no knowledge of his mother.
Consistently with the historical record, Victor Cooper said that his grandmother Trilby Ashwin told him that Nada Bilbear was a "fullblood" Aboriginal who married a European called Arthur Hasthorpe. In his oral testimony, Victor said that he was told that Thomas Cooper was born at Gindalbie. Victor said that Arthur left when Thomas was young and, after that, Thomas lived with Arthur's sister Jessie and her husband George Cooper. Victor said that George Cooper was a goldminer who also owned the general store in Kanowna, which at that time was called White Feather. Victor said that, when the town died, George moved to Gindalbie Station, which was owned by Arthur. Victor said that George Cooper died in the 1920s or 1930s.
Again, consistently with the historical record, Victor Cooper said that Thomas lived on Gindalbie Station when he was young. Victor then gave the following evidence:

[824]

I place little weight on the foregoing evidence, in so far as it suggests that Nada was involved in Thomas's upbringing and that Nada belonged to a "tribe" located around Gindalbie. I consider the evidence involves considerable conjecture. As stated earlier, the historical evidence strongly suggests that Thomas Cooper had little contact with his mother (Thomas did not speak an Aboriginal language and was unable to provide Tindale with any information concerning his mother's family and origins). Victor's evidence about what he learned from "traditional Wongi people" living out the back of his grandmother Trilby's house is vague. Not only is the identity of those people not known, but nor is there any information about their country or their source of knowledge about Nada. I consider it most likely that the Cooper family has filled the information void concerning Nada with conjecture.
In his witness statement, Victor Cooper said that he has seen photos of the Gindalbie homestead with Nada and a young Thomas. He said that he was shown those photos by Gary Cooper and Maria Bandry. Victor said that his grandmother Trilby had these photos of Thomas in a tin box that she kept under her bed, but that another family member now has that box of photos. During cross-examination, that evidence was shown to be inaccurate. First, Victor explained that, whilst he believed that his grandmother Trilby had photographs in a tin box, he does not know whether any family member has that box of photos. Second, Victor said that the photos that he was shown by Gary Cooper were not photos from the tin box but photos obtained from a website.
I also do not accept that any of the photos shown to Victor Cooper were photos of the Gindalbie homestead with Nada and a young Thomas. That evidence is not corroborated by either Gary Cooper or Maria Bandry and is not consistent with Gary Cooper's evidence. Gary Cooper adduced in evidence photographs that he believed were a photo of Thomas with two other Aboriginal men, a photo of Thomas and Trilby, and a photo of Thomas and his four daughters. Gary Cooper did not suggest that he had ever seen a photograph of Nada and a young Thomas. Gary Cooper also adduced in evidence a photograph that he said was of Arthur Hasthorpe and Nada when she was pregnant with Thomas and claimed that it was a family photograph. However, other evidence demonstrated that the photograph was of other people. If Gary Cooper had previously shown Victor a photograph of Nada and a young Thomas, it would be expected that Gary would have referred to the photograph in his evidence and efforts would have been made to produce the photograph in evidence. That did not occur.

[828]

(a) As a child, he went out with his father to hunt and cook kangaroo. Victor said that anyone can hunt kangaroo, but it is generally an elder thing. The elders would always get the pick of the kangaroo meat. Often the choice meat is the tail or backbone. Victor said that you do not shoot a kangaroo with a joey, as the mum needs to care for the baby.

(b) Victor knows how to collect grubs, and how to identify the right tree from which to pick the grub (where the timber is slightly cracked or the ground is cracked).

(c) Victor also knows how to collect honey ants, and how to find the right tree (looking for the ant above the ground near the tree, which will be black with a red stripe).

(d) Emus can often be found sleeping near bushwillow trees, because emus love the bushwillow seeds and the seeds act as sleeping pills. Victor uses the emu oil to help with arthritis. Victor also collects the emu's eggs.

(e) Victor said that his "Granny" (I infer, Trilby) and Old Humpyback (as noted earlier, a Wongatha man from Mount Margaret) taught him how to use spinifex to tie together spearheads and woomera. The spinifex roots are pulled up and burned on a rock to make a thick black tar like a glue. The sinews taken out of the tail of a kangaroo are chewed and wrapped around the end of a spear until it is tight. The tar of the burnt spinifex is then put around the sinews together with dirt.

(f) Seeds from the bardi tree and pukarta are used to make bush bread. The pods of the pukarta tree generally come out in October. The pods are opened up to get the seeds and crushed to make bread.

(g) Victor remembered the "Wongis" eating porcupine on Vardon Street (I infer, at Trilby's house). Victor described that they would sing to the porcupine for it to roll on its back. Victor said that, if you sing a "Wongi song" to the porcupine and it does not "open", it is not ready to be eaten, but if it "opens up", then you can hit it to kill it. To cook it, it is first "plucked" and then the remaining quills are burned off and then the porcupine is burned on the coals.

(h) Victor said that the old man saltbush is bush tucker. The maroon bush is a cancer bush. Victor said that this bush is pika (sore or pain) karnpi (getting good). The bush can be found from Kalgoorlie to Wiluna. A paste can also be made of the leaves, and the stalks can be boiled up to drink like a tea.

(i) Victor said that there is a reddish edible gum that can be found on the wattle and gum trees. The gum can be chewed like chewing gum.

[842]

(a) Anthropological evidence will inevitably contain a mixture of basis material and opinions. The admissibility of the opinions is governed by s 79 of the Evidence Act and it will be necessary for the anthropological evidence to explain how anthropology, as a field of specialised knowledge, applies to the basis material so as to produce the opinions propounded.

(b) The basis material within anthropological evidence may take a number of forms but will often include: observations made by the anthropologist in the course of field work undertaken by the anthropologist; information obtained directly or indirectly by the anthropologist from informants in the course of field work or in the preparation of the anthropological report; and information sourced from other historical, ethnographic or anthropological writings.

(c) Evidence given by an anthropologist of his or her observations (in the course of field work undertaken by the anthropologist) will be direct evidence of primary facts admissible in the ordinary course.

(d) Information obtained by an anthropologist directly or indirectly from informants may be proved in court by testimony given by the informant, but would otherwise constitute hearsay.

(e) Information sourced from other historical or anthropological writings would also constitute hearsay (unless the other historian or anthropologist was called to give evidence).

(f) A number of exceptions to the hearsay rule may be applicable, including the exception in s 63 of the Evidence Act which permits "first hand" hearsay evidence to be given of previous representations made by a person who is unavailable to give evidence (for example, because they have died).

(g) Section 79 does not include any common law "basis rule" to the effect that an expert opinion will be inadmissible if the factual basis for the opinion is not proved by admissible evidence. Rather, the failure to prove the factual basis for an expert opinion will affect the weight to be attributed to the opinion rather than its admissibility.

(h) Under the common law rules of evidence, experts were entitled to rely upon reputable publications as a basis for their opinions and could give evidence about the matters stated in such publications, notwithstanding that the publications constituted hearsay. This body of law is accommodated by s 60(1) of the Evidence Act which provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. Under that provision, hearsay basis material referred to in an expert report is rendered admissible for the purpose of showing the basis or foundation for the opinions expressed in the report. Unlike the position at common law, hearsay evidence admitted under s 60 is admitted for all purposes (including proof of a fact asserted in such evidence). The Court may, however, exclude such hearsay evidence under s 135 of the Evidence Act if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, might be misleading or confusing or might cause or result in undue waste of time. The Court may also limit the use to be made of such hearsay evidence under s 136 if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or might be misleading or confusing.

[847]

The probative value of earlier anthropological reports is heavily dependent upon the date on which, the purpose for which, and the circumstances in which the earlier report was created. The probative value is also affected by the nature of the research undertaken by the anthropologist and the materials available to the anthropologist in preparing the report. There is a significant difference between, on the one hand, an anthropological report which was prepared for the purposes of research and prior to the "native title era" (that is, prior to the NTA and therefore independently of any legal proceedings), particularly where the anthropologist conducted their own ethnographic research with the Aboriginal community that is the subject of the report, and, on the other hand, an anthropological report that was commissioned for the purpose of use in connection with native title litigation and which may or may not have involved personal ethnographic research by the anthropologist. The latter category of report is susceptible to more forms of bias arising from the instructions given to the anthropologist, the information available to the anthropologist and the budget available to the anthropologist to undertake the work. Unless the Court receives evidence pertaining to such matters, and receives in evidence a complete copy of the earlier anthropological report, the Court is unable to form any judgment about the probative value of the report. Ordinarily, the Court would expect an anthropological witness, who wishes to rely upon an earlier anthropological report, to consider and address such matters in the witness's evidence, just as the Court expects an anthropological witness to assess the probative value of other basis material relied upon by the witness. In the absence of receiving such evidence and consideration, it would be open to the Court to conclude that any opinions formed by the anthropological witness on the basis of the earlier anthropological report carry little if any weight.
The foregoing considerations affect the reports of Dr Corrigan and Mr Leo in so far as they rely upon the earlier anthropological reports of Mr Stevens, Dr Palmer and Dr Cane. None of the earlier anthropological reports were tendered in evidence. Nor did the Court receive any cogent evidence about the purpose for which, and the circumstances in which, the earlier reports of Mr Stevens and Dr Palmer were prepared. Neither Dr Corrigan nor Mr Leo discussed such matters in their reports, and neither addressed the probative value of the earlier anthropological reports. Further, it appears that Dr Corrigan and Mr Leo may not have had access to the entirety of each of the earlier reports (in particular, the Stevens 2001 Overlap Report Extracts and any document from which the Ballardong Notes were extracted). It reflects poorly on the expertise and professionalism of Dr Corrigan and Mr Leo that they were willing to place reliance on earlier anthropological materials (and in some instances, extracts of such reports) without obtaining evidence about the purpose for which, and the circumstances in which, the earlier reports were prepared.
Although the earlier anthropological report prepared by Dr Cane was not received in evidence in the trial of the separate questions, the Court learned of the purpose for which, and the circumstances in which, the report was prepared in the course of a pre-trial interlocutory application brought by the NTSG on 25 August 2023 seeking to defer the trial dates. That application was dismissed by the Court on 5 September 2023 with reasons published in Dimer (No 2). As those reasons explain, the NTSG's application was supported by an affidavit of Jeremy Michael Brown affirmed on 25 August 2023. At the time of making his affidavit, Mr Brown was the Deputy Principal Lawyer at NTSG. As recorded in Dimer (No 2) at [32], Mr Brown deposed that:

[867]

As specialised fields of social science, anthropology and linguistics use many words as terms of art (that is, with specialised meaning). Anthropologists and linguists giving evidence before the Court do not always explain the meanings of the specialised terms used by them. While individual judges hearing native title cases gain familiarity with anthropological and linguistic terms through experience and their wider reading, it is preferable if expert witnesses provide an explanation of important terms used in their reports to assist the Court in understanding their evidence.
In the introduction to his first report, Mr Wood provides an explanation of the significant anthropological and linguistic terms used in his report. Although the explanations relate to terms used in Mr Wood's report, similar terms and concepts are discussed in the reports of the other experts. I have used the following explanations more generally when assessing the anthropological evidence. The explanations have largely been taken from Mr Wood's first report, although in some limited respects I have amended the explanation for the sake of clarity.
The phrase 'body of laws and customs' is similar in thrust to 'customary law' as used in anthropology to denote the uncodified common law of pre-state societies, such as their categories of rights and duties, rules of access and liability to them, and acts of native jurisprudence. These order social and property relations and are otherwise law-like in such societies, but are customary and common because they are embodied in common usage, enforced primarily by social pressure, and elevated in the cosmology rather than in stand-alone codification and enforcement by a state.
The words 'traditional' and 'customary' do not refer only to precolonial Aboriginal laws and customs, but also to the Aboriginal laws and customs of the present day (in so far as they are sourced from precolonial laws and customs). The terms 'classical' and 'post-classical' are used to distinguish between precolonial and contemporary laws and customs.
In stateless societies, 'filiation' and 'descent' are common principles of recruitment to corporate groups holding rights and interests. Persons belonging to such a corporate group through their father are termed 'patrifiliates' and those connected to it through their mother are called 'matrifiliates'. A corporate descent group consisting only of patrifiliates can be referred to as a 'patrilineal descent group', which in Australian anthropology has often been abbreviated to 'patriclan'. Patriclan systems invariably provide for 'matrilateral' interests; that is, non-descending interests held by matrifiliates to a clan.
This combination of patrilineal and matrilateral principles readily transforms into the more pragmatic and adaptive cognatic descent, in which membership is traced through a combination of male or female ancestors who are equivalent at least in practice. This shift is complete in many parts of Aboriginal and Torres Strait Islander Australia, and in progress in others. The core principles which remain unchanged in this transformation, and which have proven perduring in Aboriginal and Torres Strait Islander Australia, is that rights descend genealogically except for rare cases, they are communally held, and are inalienable. They do not circulate through markets, nor can they be acquired as private property, or by persons external to the communal owner group.
Over wide areas of Aboriginal Australia there is a dual division of society and the natural world into oppositional but complementary classes termed 'moieties' (derived from French 'moitié' meaning 'half' of something). 'Descent moieties' are termed patrimoieties where membership descends through males, and matrimoieties where it descends through females. In 'generation moieties', alternate generations are assigned to a different moiety. 'Sections' result from a combination of descent moieties and generation moieties, which intersect each other to make four 'sections' in all.
Commonly associated with clans in many parts of the world - and with moieties and sections in Australia - is 'totemism', and both it and 'animism' are features of cosmologies in which human society and the natural world are seen as inter-penetrative. Globally, the most characteristic 'totem' is an animal species with which a human individual or descent group is held to share bodily and spirit substance or is otherwise mystically bound to. 'Animism' perceives objects like rocks, soil, water bodies, and wind as animated and as having a will and often an intent toward humans, and/or that can be manipulated by humans. This aspect of animism tends to merge with totemism in Australian cosmologies because some totemic ancestors feature as the actors in mythological narratives, at the close of which they are transformed into topographical sites and ritual artefacts, making totems one and the same as the animating agent of those sites and objects. These are 'site-bound totems,' and they are involved in land tenure, unlike the totems of regionally diffuse social institutions like moieties, which are active at the regional society level, that is, in social relations above the level of local tenure relations.
Conventional property terms like 'estate', 'rights', 'interests', 'landholder', 'owner' and 'tenure' have long been used in anthropology with much the same meanings as in other disciplines.
The term 'social', as in 'social organisation', refers to a society's structural and other traits subject to or forming part of its laws and customs. Some anthropologists have long used the terms 'social formation' or 'social system' in preference to, but with the same meaning as, 'society'.
Anthropologists do not assume that norms or rules are to be ascertained solely by practitioner accounts of prescriptive or ideal rules, but are partly to be discovered from observation of actual practice, on the basis that rules in a normative sense are embodied in their operation. Actual practice may also reveal the additional presence of the equivalent of 'unwritten rules'. In that regard, I accept the observation made by Mr Wood that it is rare that an individual member of any society can give a full and consistent account of their own community's rules and norms. Commonly, the account given by any individual member of a society is disorganised and affected by the individual's subjectivity, ideals (as opposed to actual practice) and personal aptitude.
In linguistic usage, a 'dialect' is a variant of a language readily understood by speakers of other variants without needing to learn it, whereas separate languages are those in which lexical differences are too great for mutual intelligibility.
An 'ethnonym' is a name used for an ethnic or language group. An 'exonym' is an ethnonym coined by one group of people for another group, while an 'autonym' or 'self-ethnonym' is a name people use for themselves. Over time groups sometimes assimilate what began as an exonym into a name for themselves, and there are many cases on record in Aboriginal Australia.

[868]

Ray Wood obtained a Bachelor of Arts (Hons) with a major in anthropology and minors in linguistics and history from Macquarie University in 1977-1979 and 1983. Mr Wood has also undertaken an intensive training in linguistics obtained in the Summer Institute of Linguistics summer schools held at the University of Queensland. Although Mr Wood has published in both anthropology and linguistics, the bulk of his research since the 1980s consists of a large volume of anthropology reports to the Northern Territory Aboriginal Land Commissioner and the Federal Court on indigenous land and marine tenure claims, focused on the history and distribution of customary law systems. Most of this work has been in Central Australia, Arnhem Land, Cape York Peninsula, the Torres Strait, and southern Queensland and adjacent New South Wales. Mr Wood is familiar with the phonological, grammatical, and semantic workings of Australian languages overall.
When Mr Wood was first engaged by the solicitors for the Marlinyu Ghoorlie applicant (in December 2019), he was instructed to provide an expert anthropological report to facilitate negotiations with the State. Subsequently, Mr Wood was instructed to prepare a report and to give evidence on behalf of the Marlinyu Ghoorlie applicant in the proceeding.
Mr Wood prepared two reports which were tendered in evidence at the hearing. The first report was dated 29 October 2023 and constituted an amended version of a report prepared by Mr Wood dated 12 July 2023. The second report was dated 6 November 2023. Mr Wood participated in the conference of experts that occurred on 22 and 23 November 2023 and signed the joint expert report on 23 November 2023. Mr Wood gave evidence in the week commencing 11 December 2023 and was cross-examined.
In his reports, Mr Wood makes passing reference to the Wood 2022 Report. As noted above, that report is dated 30 September 2022 and was prepared by him for the NTSG . That report was not tendered in evidence and not relied upon by Mr Wood (as it was superseded by Mr Wood's 2023 reports). As referred to later, the Wood 2022 Report was, however, referenced by each of Dr Corrigan and Mr Leo.

[870]

Issue 1: What were the normative laws and customs governing acquisition, transmission and exercise of rights and interests in land that were acknowledged and observed in the claim area at sovereignty? In addressing this issue, please consider other laws and customs comprising the normative system to the extent relevant and practicable.

Issue 2: Who were people, or group or groups of people who were united in and by their acknowledgement and observance of the normative laws and customs of the claim area at sovereignty? If and to the extent this group or groups can be identified by reference to a socio-linguistic label or labels, please specify this label or labels.

Issue 3: Further to issues 1 and 2, did Southern Cross (a town in the claim area) or thereabouts constitute a boundary between two distinct cultural groups (the Kapurn and/or any others) that acknowledged and observed two different sets of normative laws and customs? If so, what were these groups? If not, was and is there any such boundary in any part of the western part of the claim area and, if so, where is it?

Issue 4: Related to Issues 1 and 2, did the laws and customs of the Western Desert Cultural Bloc govern the acquisition, transmission and/or exercise of rights and interests in land in any part of the claim area in 1829? If so, which part(s)? In addressing this issue, please outline your understanding of the Western Desert Cultural Bloc and of the relevant normative laws and customs of this cultural group or society.

Issue 5: Related to Issues 1 and 4, did the normative laws and customs identified in response to Issue 1 provide for the acquisition of rights and interests in land by members of the Western Desert cultural group or society in any part of the claim area in 1829? If so, what were these native title rights and interests and in which part(s) of the claim area were they held?

Issue 6: Has the acknowledgement and observance of the laws and customs identified in response to Issue 1 above continued, substantially uninterrupted, since 1829? If, since sovereignty, there have been changes to any traditional laws and customs relating to acquisition, transmission and exercise of rights and interests in land, explain the nature of these changes and whether these laws and customs are still "traditional" in the sense of being rooted in pre-sovereignty laws and customs.

Issue 7: Related to Issue 6, if and to the extent there has been continued acknowledgement of relevant normative laws and customs in the requisite sense, can those laws and customs be characterised as providing a connection between the relevant group or groups of people group and the claim area?

Issue 8: Are any native title rights and interests held under the laws and customs described in response to Issues 1 and 6? Without necessarily providing a full exposition, what is the nature of these rights and interests?

Issue 9: If descent is a necessary or permissible criterion for the acquisition of rights and interests in land in the claim area, who are the identifiable ancestors from whom those rights and interests may be acquired by reason of descent? In addressing this issue please consider whether each of the claimed Marlinyu Ghoorlie apical ancestors (Nellie Champion, Warada, Kaddee, and Lucy Sambo) and the claimed apical ancestors of each of the other active parties (being those set out in [2] above) are persons from whom living people may acquire rights and interests in the claim area through descent.

Issue 10: Having regard to all of the above, who are the persons who presently hold native title rights and interests in the claim area at the highest practical level of specificity (be it families or individuals or otherwise)? Sub-issues include whether any of the Maduwongga Applicant, Karratjibbin Applicant, the Cooper Respondents, Ms Sambo, or Ms Colbung hold native title rights in any part of the claim area.

[873]

(a) Corporate descent groups, which were of the totemic patriclan form; that is, their members were recruited through the male line by reference to their father and father's father, and each of which held an estate intramural to the trial area and named by reference a focal totemic site. This minimal structure is especially evident in the patrilineal descent of the focal site totem, and the frequent attachment of the suffix -w_uk_ to form an appellation for both the group and its estate. This feature and the suffix were shared with Noongar people to the west and with some Ngadju people and, even where not named in this way, descent groups were common to all the non-Desert groups of the region, in distinction to the Western Desert Cultural Bloc.

(b) Male initiation which included circumcision (and subincision). This is a practice that was shared with Ngadjumaya, Partimaya, and Mirning and with the Western Desert - from where it was diffused south, south-east, and east in recent prehistory - but not shared with most of the Noongar, and was thus among features that distinguished Karlamaya Kapurn and all their neighbours from at least those Noongar of the far south-west of the state and the coastal areas of the Murchison and Gascoyne regions.

(c) Named generation moieties, each identified with a bird totem after which it was named, with the addition of the suffix -mat. The generation moieties distinguish the trial area and its people from both their Western Desert and Noongar neighbours, neither of whom had moieties of this specific form and nomenclature. While there were generation moieties in the Western Desert - with proper names in some parts, but marked only by shifter reciprocal terms in others - they did not have the distinctive character and totemic names of the Karlamaya moieties. This also distinguished the trial area, albeit more marginally, from the neighbouring Ngadju area, where the generation moieties do not appear to have been named, or at least not consistently, nor is it recorded that they were totemicised. The moieties had no role in apportioning rights in property, but their recorded geographical distribution is a major key to identifying the extent of Kapurn country vis-à-vis the Western Desert Cultural Bloc.

[885]

Issue 4 is related to issues 1 and 2 and concerns the question whether the traditional laws and customs of the Western Desert Cultural Bloc governed the acquisition, transmission and/or exercise of rights and interests in land in any part of the trial area at sovereignty.
By way of background, Mr Wood explained that the descriptor 'Western Desert' (and associated descriptors 'Western Desert Cultural Bloc' and 'Western Desert Cultural Complex') are commonly used by anthropologists, linguists and archaeologists, since approximately 80 years ago, to denote a relatively homogenous culture and with a language of only minor to medium dialect variation, which in historical linguistics is an indicator of a recent origin and rapid spread. Mr Wood further explained that, to the best of his knowledge, the phrase 'Western Desert' was first used by Tindale at least in his 1939 field journal. Its usage in anthropology was consolidated by Professor Ronald Berndt, who was one of the most senior figures in Australian anthropology from the mid-20th century. He and his wife Catherine Berndt worked extensively in the Western Desert and wrote an early and detailed account of its culture.
Mr Wood expressed the opinion that Western Desert laws and customs did not distribute rights and interests of a proprietary nature in any land within the trial area at sovereignty in 1829, nor at the time of effective sovereignty around the Goldrush in the 1880s-1890s. Although sharing numerous particulars with Kapurn laws and customs and with wider Aboriginal Australia - such as a role for patrifiliation and matrifiliation, totemism, and the importance of Dreaming mythology - how those particulars are ordered and function in the Western Desert is radically different from all other Aboriginal groups.
Mr Wood said that, in the Western Desert (prior to concentration at European centres), an individual acquired a totemic identity that affiliated them to land and Dreamings from their birth site (plus or minus conception and/or umbilical cord shedding sites), but achievement of landed identity group membership was not governed by structural prescriptions. Rather, it was a biographical process, in which development of ritual and mythological knowledge and bonding within political and kin networks were required and an array of other connection points were the currency. By contrast, in Kapurn society, while an individual had a personal birth site totem and it is evident that mythological knowledge was and is important to acquisition of executive power, neither were the originating basis of group composition at either the local estate or wider ethnic communal level. Membership at both levels was genealogically set at birth by descent from antecedent generations of owners. Ritual, mythological, and totemic knowledge can undergo changes or become attenuated in Kapurn society without changing the root ownership of country, which is intergenerationally stable due to its genealogical mode of reproduction.
In this section of his report, Mr Wood relied upon the research of anthropologists with extensive research experience in Western Desert communities, including Ronald and Catherine Berndt, A P Elkin, Robert Tonkinson, Dr Kingsley Palmer, Fred Myers, Peter Sutton and Dr Scott Cane. Mr Wood also relied on Tindale data from in and around the trial area, and extending into areas to the north-east of the trial area that are recognised as being areas in which Western Desert law and custom applied.
Mr Wood observed that confusion with respect to traditional rights and interests can arise in the context of "religio-cultural interests along the vast net of tracks and sites of mythological actors denoted in Aboriginal English by the term 'Dreaming'". Rights and interests in sites along such tracks belong to the people who possess the rights and interests in the land on which the site is located, and those people control that segment of the track and its sites, songs and other 'sacra' concerned with that segment. Their neighbours on the same track hold the segment on their country, and so on along the track. No group holds proprietary rights in the entirety of a track, nor can assert even an executive role in the management of every site along its entire length.
Mr Wood noted that a particularly illustrative example is the famous Western Desert series of Wati Kutjarra (Two Men) narratives, concerning the travels and deeds of Two Men each identified with a goanna species. One branch of these narratives begins in the Balgo Hills area of the southern Kimberley - which is the country of non-Western Desert groups - and travels south-southeast through Western Australia and into South Australia. Another begins near Kalgoorlie, again in non-Western Desert country, namely Kapurn country, and proceeds north-east to Edjudina, Laverton and on to the Warburton Ranges and thence down into South Australia. Ronald and Catherine Berndt recorded sites belonging to this chain of Wati Kutjarra narratives at Ooldea in South Australia - itself a Moon site with Wati Kutjarra associations - and relate that the myth was of great importance to the Ooldea population which was drawn from many parts of the Western Desert including some adjacent parts of Western Australia. In 1939, Warburton Ranges men gave Tindale accounts of western portions of these southern Wati Kutjarra tracks, which they said begins at a well-known rock shelter near Coolgardie from whence it goes out north-east to the Edjudina, Laverton and Warburton Ranges areas.
The Two Men narratives are known to the Kapurn people by the name Kanku Pulatja (Uncle and Nephew). The narrative has an origin site near Coolgardie. From that site, the Kanku Pulatja / Wati Kutjarra journey into the Desert through Laverton and Warburton thence on to South Australia, where at far away Ooldea the Berndts heard Kalgoorlie named as the origin area. Mr Wood explained that there are differences in the two narratives. In both the Kapurn and Western Desert parts of the myth, the subjects are two men. But the Two Men are identified by the Kapurn with two species of tree that grow up from residues of their spirit matter in their trails leading from Coolgardie, whereas in the Western Desert the Two Men are totemically two goanna species. In the Kapurn tradition they are also an uncle and nephew pair (Mr Wood noting that, in the trial area and Aboriginal Australia generally, the relationship between uncles (= mother's brothers) and nephews (= sisters' sons) has high cultural importance). The significance of the Kanku Pulatja narrative is that, at the origin site of the narrative near Coolgardie, the Kanku Pulatja invented the circumcision rite, and initiated each other, and thence carried the rite out into the Western Desert where they introduced it to all.
The Kapurn people ceased the male initiation practice of circumcision between the late 1930s and the late 1940s. Mr Wood observed that his research amongst Aboriginal people within the trial area indicates a push on behalf of Western Desert people to assert 'ownership' of sites in the eastern part of the trial area associated with the Kanku Pulatja / Wati Kutjarra on the basis that they continue the practice of circumcision.
In this section of his report, Mr Wood also examines the circumstances that caused the Kapurn people (together with the Ngadju people and possibly Partimaya people) to cease the male initiation practice of circumcision. A common explanation given to Mr Wood and other researchers is the violence of the practice and the risk of harm (through surgical mishap or infection). However, Mr Wood expressed the opinion that the practice of circumcision may have extended into the trial area from Western Desert neighbours only a relatively short period prior to European settlement, and its cessation may have been motivated by a degree of resistance to the intrusion of Western Desert practices into the trial area.
Mr Wood concludes with the observation that, while the conjoining of mythological narratives between neighbouring peoples is normative in Aboriginal Australia, it is not normative for it to give rise to claims on neighbouring countries. A Dreaming connection to other country offers no gateway or process to ownership of country where the laws and customs of that country, like that of the Kapurn, require descent as the condition for acquiring rights and interested in land.
Mr Wood also examines Tindale's use of the name 'Maduwongga' and the maps of tribal boundaries drawn by Tindale. Mr Wood expressed the conclusion that there was no Maduwongga tribe or territory in the trial area at sovereignty. Mr Wood considers that Kitty Bluegum belonged to one of the two documented Western Desert groups called Martu Wangka in western South Australia. Most of the other persons Tindale assigned to this group label came from a wide circle around the Warburton Ranges, down a trail that led first to the Laverton area, thence to places like Edjudina, Karonie, and Gindalbie, and finally into Coolgardie and Kalgoorlie. Mr Wood's opinions are based on a close study of Tindale data collected in 1939 and 1966.

[886]

Issue 5 concerns the question whether the traditional laws and customs of the trial area provide for the acquisition of rights and interests by Western Desert people.
Mr Wood expressed the opinion that the traditional laws and customs of the trial area did not provide for the acquisition of rights and interests by Western Desert people. That is because the foundational principle in the laws and customs of the trial area is that acquisition of rights and interests was restricted to persons descended from antecedent right-holders; that is, confined to those born Kapurn.
However, Mr Wood noted that in many Australian descent systems (and many throughout the world) there are a small number of cases of naturalisation of occasional individuals from other groups who have married into the community, permanently live in it, use its language as their primary language, and whose children grow up as functional members and know no other language. Mr Wood expressed the opinion that there are indicators that non-Kapurn affines could become incorporated into Kapurn society, approximating naturalisation. In that regard, Mr Wood referred to notes made by Bates referring to 'Bibbulmun' (Noongar) men being adopted into and circumcised by the 'Karratjibbin' (Kapurn).
In that context, Mr Wood discussed the biographical information available in respect of Dick Donaldson, who married King Billy's daughter Alice Minjin and was given authority over Coolgardie sites by King Billy. Dick Donaldson is prominent among the Kapurn group's cultural ancestors in that he was a major figure in the custodianship of Kapurn sites and one through whom the continuity of law and custom was transmitted. Mr Wood noted that Dick Donaldson had connections with, and had lived for a period at, Fraser Range, which is in Ngadju country, and on that basis he is presumed by present day Kapurn people to have been wholly Ngadju. Mr Wood noted, however, that one of Bates's genealogies labelled 'near Fraser Range' has the Kapurn features of descending site totems and named generation moieties and considered that Kapurn country probably approached Fraser Range on its western side. When Wilf Douglas interviewed Ted Champion in Kalgoorlie Hospital, Ted made a point of picking out Dick Donaldson, saying that "Dick Donaldson is a Karlamaya speaker". For those reasons, Mr Wood is not persuaded that Dick Donaldson had no degree of Kapurn ancestry. Nevertheless, Mr Wood noted that in other parts of Australia aging men with no patrilineal heirs recruited a son-in-law to be such, who was effectively made a member of the old man's descent group in a degree closer to de jure than de facto. Mr Wood considers it possible that Dick Donaldson was incorporated into Kapurn society in that manner.
Mr Wood expressed the generalised opinion that, in Aboriginal societies where acquisition of rights was governed by descent, the incidence of naturalisation was numerically small, and associated with in-marriage and permanent co-residence with the group, use of its language, and incorporation into institutions of the spouse's group, such as its section or moiety system, and in the case of males, initiation. It was usually only partially complete by the second generation, and only consolidated by the third, by which time there was a deliberate 'forgetting' of the external apical person's origin by those old enough to recall it.

[890]

Issue 7 asks whether the laws and customs acknowledged and observed in respect of the trial area can be characterised as providing a connection between the relevant group and the trial area. The issue reflects the second limb or condition of the definition of native title rights and interests in s 223(1)(b) of the NTA, which is that an identified group of Aboriginal people or Torres Strait Islanders have a connection with the relevant land and waters by the traditional laws acknowledged and the traditional customs observed by them.
In his report, Mr Wood expressed a lack of certainty about the matters relevant to this issue. This is despite the fact that Mr Wood was provided with the explanation of the 'connection' requirement in s 223(1)(b) given in Ward (at [64]) and Alyawarr (at [88] and [92]) (which have been set out earlier in these reasons). Nevertheless, Mr Wood reported that Marlinyu Ghoorlie claimants consistently expressed their relationship with the trial area as being 'our country'. By that phrase, the Marlinyu Ghoorlie claimants were expressing not merely ownership of the country, but that they considered themselves to be inseparably joined to the country, which is their ancestral homeland. Mr Wood reported that the statement that 'this is our country' includes each of the several primary senses of the word country in Aboriginal Australia: the proprietary sense; the spiritual connection sense, that is, with the stock of ancestor spirits that reside in it, and its Dreaming mythology; and, an affective bond with the land. Mr Wood further observed that, while residence on the lands in question is not a requirement to establish ongoing connection, the Marlinyu Ghoorlie claimant's residence on the trial area is unbroken since the Goldrush and settler entry. All the adult Kapurn people interviewed by Mr Wood have spent most or all of their lives within the trial area. Mr Wood further reported that there is a clear intergenerational transmission of connection in claimant oral accounts. For example, all those Mr Wood spoke with told him that they were explicitly taught by their seniors that they are Karlamaya Kapurn people, and that the trial area is the Karlamaya Kapurn people's traditional country. They were also taught about the country in the course of traveling about on it: where its water sources are, its animated sites and mythology, the distribution of significant plant species, its numerous place names, how to find food in the bush, and to clean the rock holes out.

[892]

On the basis that descent is a necessary or permissible criteria for the acquisition of rights and interests in land in the trial area, issue 9 asks who are the identifiable ancestors from whom those rights and interests may be acquired by reason of descent. Issue 10 asks who are the persons who presently hold native title rights and interests in the trial area at the highest practical level of specificity, and whether (relevantly) members of the Karratjibbin claim group, the Cooper respondents or Ms Sambo hold rights and interests.
Mr Wood observed that it is not possible to identify all Karlamaya individuals who held rights and interests within the trial area even after effective sovereignty, because oral genealogical records tend to be shallow in Aboriginal Australia, rarely extending far above the great-grandparental level until well after colonisation. Written records are patchy and late. As on all Australian gold fields, the Goldrush culture was demographically explosive, with a large disorderly population appearing in the bush with great abruptness and officialdom was preoccupied with managing it, with scant interest in the Aboriginal population (such as in taking a census of it).
Mr Wood expressed agreement with Ms Taylor's identification of all known Karlamaya Kapurn ancestors in the early years of effective sovereignty to the 1930s - at the highest documented apical level Kaddee, Warada, and Kajjaman (Nellie Champion) - and the next generation whose prominent members include the Donaldson descendants of King Billy and his daughter Alice Minjin, the Wilsons, Champions, Paddys, and Pilanaras. Mr Wood observed that not all of these had children, and so are not biological ancestors, but they remain important apical ancestors in respect of the cultural reproduction of the group. For example, while Clem and Phil Donaldson and Jack and Ted Champion were important source persons for cultural transmission to current generations, and are cited by Brian Champion Snr and the generation below him, Brian Champion Snr learnt much of what he knows about the north-western end of the trial area from the Paddy brothers, such as Charlie Paddy (Uncle Noodi).
In relation to Elizabeth Sambo, Mr Wood agrees that she has rights and interests in the trial area as a Kapurn person through descent from both the Sambo and Champion families.
In relation to the Karratjibbin claim group, Mr Wood expressed the opinion that members of the group could only have rights and interests in the trial area through descent from a member of the Kapurn community.
In relation to the Cooper respondents, Mr Wood observed that the ancestor, Nada Bilbear (Aneida), through whom the Cooper respondents assert rights in the eastern part of the trial area, is not known in any oral tradition in the Kalgoorlie region as someone who descends from an antecedent rights-holder in the trial area, and very little is known about her by the Coopers themselves. Mr Wood further observed that their contention that Nada held rights in the eastern part of the trial area rests on a single line in a single Tindale document which records that Nada was "of the original tribe of Kalgoorlie". Mr Wood considers that the provenance of the statement is unknown and there is no contextual information to support it. Mr Wood's detailed analysis of the Tindale field data leads him to the conclusion that Tindale erroneously allocated Nada and her son Thomas Cooper a 'Maduwongga' tribal identity, and erroneously mapped the area of Kalgoorlie as being Maduwongga country.

[904]

Issue 2 concerns the identity of the Aboriginal people or peoples who occupied the trial area at effective sovereignty.
Ms Taylor expressed the opinion that an Aboriginal group named Karlamaya, Karlaku or Kapurn, occupied (and continues to occupy) the whole trial area at effective sovereignty. They shared a language, Karlamaya, and a body of laws and customs which differentiated them from Western Desert and Noongar neighbours. They referred to themselves as 'Kapurn' (the word for man, often written as 'Kabul' (for example, by McDonald and Tindale) or 'Kabboon' (for example, by Bates). In the western portion of the trial area, the term 'Karlamaya' (including variations of the word) has been used to describe the Aboriginal people of the area (for example, Tindale), and also refers to the name of the language: Karla + maya = Fire + having. In the south-eastern portions of the trial area, the terms 'Karlaku' (for example, by Tindale) or 'Kalaaga' (for example, by Bates) has been used. These identity conventions are not mutually exclusive, and some predecessors of the Marlinyu Ghoorlie claim group (for example, Don Roundhead) used all three labels (Karlamaya, Karlaku and Kapurn) to describe their tribal identity.
Ms Taylor expressed the opinion that other groups asserting rights and interests in the eastern portion of the trial area, such as the Maduwongga and other Wongai groups (including the Pindinnie), have been incorrectly attributed to the trial area by Tindale (1939) and early historic accounts, and likely migrated into the trial area post-effective sovereignty.
On the western side of the trial area, a circumcision line (separating the uncircumcising Noongar groups, and the circumcising and subincising Kapurns) was traditionally observed and correlates with the western boundary of the trial area, meaning any Noongar interests in the trial area are historical (post-effective sovereignty) rather than traditional.
Ms Taylor explained that her response to this issue is based on her research using all available resources including State records files, field notes and genealogies completed by Daisy Bates (1907-1912), interviews and fieldnotes by Norman B Tindale (1939-1974) and research by other anthropologists, linguists and researchers thereafter. Ms Taylor also analysed newspaper articles, departmental records and other historical sources such as station records and police files (where access was permitted). Ms Taylor also briefly reviewed linguistic studies (1960-2001) to gain a sense of language family groupings and their geographic distribution across places within the trial area. Ms Taylor also used primary sources including interviews with claimants (2018-present), affidavits, archival videos, and recordings of elders and other contemporary informants.

[912]

A large portion of Ms Taylor's second report contains a reply to the opinions expressed by Mr Leo in his second report. The report identifies significant flaws in the reasoning of Mr Leo. Those flaws include Mr Leo's selective treatment of the ethno-historical material (particularly the Bates and Tindale material) in contesting the conclusion that Kapurn people held rights and interests in the whole of the trial area at sovereignty. The flaws also include Mr Leo's incomplete grasp of all available archival and ethno-historical records relating to Kapurn ancestors before effective sovereignty and their descendants in the early part of the 20th century. It is unnecessary to set out the details of Ms Taylor's reply, which I have taken into account. I record, however, that I consider the reply to be compelling, and I accept the opinions expressed (which are largely reflected in Ms Taylor's first report). As discussed below, I consider that Mr Leo's evidence was deeply flawed and I give it no material weight.
Ms Taylor's second report also contains a reply to the opinions expressed by Dr Corrigan in his first report concerning the persons identified by the Karratjibbin applicant as apical ancestors, and specifically Billy Yambinut. Ms Taylor concludes that the available evidence does not support the Karratjibbin contention that Billy Yambinut had rights and interests in the trial area. Ms Taylor also summarised the available evidence concerning Annie McIntyre and similarly concludes that she did not have rights and interests in the trial area.
Ms Taylor also included as an annexure to her supplementary report an affidavit made by her on 23 August 2023 which in turn annexed a report prepared by her dated 21 August 2023 expressing her opinions with respect to the documentary and archival records relating to the apical ancestors referred to in the Karratjibbin claim, as well as the documentary and archival records concerning the word 'Karratjibbin'. In that regard, Ms Taylor concludes that the term 'Karratjibbin' was invented and used exclusively by Daisy Bates to name the group of Indigenous people she encountered in Southern Cross during her research in 1907. Daisy Bates gave them the name 'Karratjibbin' after the group's favoured camping site near Southern Cross. Ms Taylor reports that she is not aware of any other anthropologists or researchers who have identified a group of persons by the name 'Karratjibbin'. Ms Taylor further reports that she is not aware of any documents or materials that support the proposition that there was, at effective sovereignty, and still is today, a group of people called Karratjibbin who are distinct from the Kapurn Karlamaya people.

[913]

The Cooper respondents submitted that, in providing expert evidence, Ms Taylor had a conflict of interest arising from her employment with Terra Rosa Consulting. They also drew attention to the fact that Ms Taylor failed to include an acknowledgement in her reports that she was bound by the obligations set out in the Expert Evidence Practice Note. The Cooper respondents submitted that Ms Taylor tended to give an interpretation of the anthropological materials and the lay evidence that is favourable to the Marlinyu Ghoorlie applicant rather than an objective interpretation and, to the extent that Ms Taylor expressed opinions favourable to the Marlinyu Ghoorlie applicant's case, those opinions should be approached with caution. As acknowledged by the Cooper respondents, a lack of independence of an expert witness does not affect the admissibility of their evidence but may affect the weight that is given to the evidence: Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385; (2012) 202 FCR 564 at [35]; Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2012] FCA 944; (2012) 210 FCR 21 at [59]- [61]; Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622 at [36]- [41], [52]-[53].
The Federal Court's Expert Evidence Practice Note provides important guidelines to expert witnesses, including a Code of Conduct. The Practice Note requires an expert to acknowledge in their report that the expert has read and complied with the Practice Note and agrees to be bound by it. The purpose of the acknowledgement is to ensure that the contents of the Practice Note are brought to the attention of each witness giving expert evidence.
In the course of giving evidence, Ms Taylor confirmed that she had read the Expert Evidence Practice Note and sought to comply with it in preparing her reports. She explained that this was the first proceeding in which she had prepared an expert report and had overlooked the requirement to include an acknowledgment concerning the Practice Note in her report. I accept that evidence. The instructions given by the solicitors for the Marlinyu Ghoorlie applicant to Ms Taylor on 7 May 2020 and 28 April 2022 refer to the Practice Note and refer to relevant aspects of it.
With respect to the alleged conflict of interest, Ms Taylor confirmed in evidence that she had prepared her expert reports for this proceeding as an employee of Terra Rosa Consulting. Ms Taylor also confirmed that Terra Rosa Consulting had undertaken other work for the Marlinyu Ghoorlie applicant, comprising a "cultural mapping project" (which was called Yarnda Yirrigan and involved the compilation of culturally significant sites across the trial area) and other cultural heritage work, and that Ms Taylor had had some involvement in that other work. In evidence was a page from Terra Rosa Consulting's Facebook account dated 12 November 2020 which stated:

[915]

Ms Taylor agreed with the suggestion that Terra Rosa Consulting has a very close association with the Marlinyu Ghoorlie claim. Ms Taylor rejected, however, the suggestion that her employment by Terra Rosa Consulting and the close association that Terra Rosa Consulting has with the Marlinyu Ghoorlie applicant undermined her independence as an expert witness in the proceeding. Ms Taylor gave evidence that she understood that her responsibility to the Court required that her evidence be prepared independently. She said that her evidence was prepared by herself without the supervision or involvement of any other person at Terra Rosa Consulting. Ms Taylor rejected the suggestion that, in performing her anthropological research, she would have had a concern about making negative findings because, if she did so, Terra Rosa would be likely to lose other work from the Marlinyu Ghoorlie claim group.
The nature of anthropological research presents peculiar risks to the maintenance of independence by the researcher. Anthropology, in the context of native title claims in Australia, is a social science that researches and explains the laws and customs of Aboriginal and Torres Strait Island communities as expressed in their language, beliefs, practices and behaviours and social structures. The research typically involves close contact between the researcher and the Aboriginal and Torres Strait Island community concerned. There is an ever-present risk that the researcher will form a close personal relationship with the community concerned, undermining the researcher's independence. At the same time, close contact between the researcher and the community concerned is typically a necessary element of deep and thorough research. It is incumbent on the researcher, who has been asked to give evidence in a native title proceeding on behalf of a claim group, to maintain independence and objectivity in preparing and giving his or her evidence. A necessary part of maintaining independence and objectivity is for the researcher to disclose fully the activities undertaken as part of their research, including time spent with and within the community concerned, and to disclose fully all relevant information that has been learned, whether helpful or harmful to the case brought by the community.
In the present case, I am satisfied that Ms Taylor's evidence was independent and free from any bias. In her first report, Ms Taylor disclosed her employment by Terra Rosa and the nature and extent of her work with the Marlinyu Ghoorlie claim group. While the evidence established that Terra Rosa has undertaken other work on behalf of the Marlinyu Ghoorlie claim group, I am not persuaded that those circumstances gave Ms Taylor a material conflict of interest or undermined her independence. The cultural mapping project involved related work, in that it required Terra Rosa to seek information from the Marlinyu Ghoorlie claim group with respect to sites that they considered were culturally significant. Understandably, in the course of her anthropological work, Ms Taylor contributed to that project.
Most significantly, I found Ms Taylor to be an impressive witness in terms of both her written evidence and her testimony. Her evidence was thoroughly researched and Ms Taylor displayed a detailed knowledge of both historical evidence and present-day claimant evidence. I considered that Ms Taylor gave her evidence with complete frankness and addressed conflicting evidence with balance and objectivity. As discussed further below, where Ms Taylor's interpretation of the evidence conflicted with Dr Corrigan or Mr Leo, I have almost invariably preferred Ms Taylor's interpretation.

[917]

In her expert report, Ms Taylor frequently referred to statements made by Dorothy Dimer in two affidavits, the first sworn on 23 September 2004 and the second made on an unspecified date in 2009. Dorothy Dimer was the daughter of Alice Minjin and granddaughter of King Billy, and the mother of witnesses Henry (Ricky) Dimer and Maxine Dimer. Dorothy Dimer was born in 1929 and, accordingly, at the time of trial was an elderly woman. She died after the conclusion of the trial on 1 June 2024.
On 28 Apil 2023, an application was filed on behalf of the respondent, Denise Colbung, for leave to call preservation evidence from Dorothy Dimer. Ultimately, the application was not pressed. The evidence adduced in respect of the application indicated that, at that time, Dorothy Dimer may not have been competent to give evidence.
Ms Taylor's reporting of statements made by Dorothy Dimer in her 2004 and 2009 affidavits was admitted into evidence without objection. Although Dorothy Dimer's affidavits are hearsay, as explained earlier in these reasons, under s 60 of the Evidence Act hearsay material referred to in an expert report is rendered admissible for the purpose of showing the basis or foundation for the opinions expressed in the report. Further, hearsay evidence admitted under s 60 is admitted for all purposes (including proof of a fact asserted in such evidence). As a result, Ms Taylor's reporting of Dorothy Dimer's affidavit evidence was admissible and has been taken into account by the Court.
Nevertheless, it would have been preferable for the Marlinyu Ghoorlie applicant to tender Dorothy Dimer's affidavits so that they could have been received by the Court as additional lay evidence. As Dorothy Dimer is the granddaughter of King Billy, who is the son of apical ancestors Warada and Kaddee, and was born in 1929, her affidavit evidence is significant. Although Dorothy Dimer's affidavits are hearsay, s 63 renders the affidavits admissible in evidence if Dorothy Dimer was unavailable to give evidence (which appears to have been the case at the time of trial). At the very least, it would have been preferable for the Marlinyu Ghoorlie applicant to have made that application, and any objections could have been considered by the Court.

[927]

A large part of section 1 of Dr Powell's report recorded statements made to Dr Powell by Elizabeth Sambo or members of her family which was not read into evidence because it ceased to be relevant. Nevertheless, a significant part of section 1 concerned information provided to Dr Powell by Linda Champion (now deceased) and other close family members who have also since died. Linda Champion was married to William Sambo (now deceased). Linda Champion's father was Edward (Ted) Champion. Other family members who provided information to Dr Powell were William Sambo, Trixie Jackson (the daughter of Linda Champion's sister Kathleen, now deceased), Cadley Sambo (William Sambo's brother, now deceased) and Gary Sambo. Gary Sambo gave evidence during the preservation evidence hearing in February 2023, but has since died.
Dr Powell records that Linda Champion described herself as Gubrun or Kapurn or Karlamaya, based on what Linda had been told by older people, through her descent from Nellie Champion (the mother of her father Ted Champion) whom she knew was Gubrun or Kapurn or Karlamaya and who belonged to the Kalgoorlie / Coolgardie / Southern Cross region. Further, Dr Powell records that descendants of Lucy Sambo (the mother of William Sambo) recognised Linda Champion as a descendant of Nellie Champion. Dr Powell also records that Trixie Jackson told her that Trixie's grandfather, Ted Champion, was a "Law Man" and, when he lived in the shed in her Kalgoorlie backyard, many people came to see him. Trixie recalled that he "had a bone through his nose" and "he could speak 14 different languages".
With respect to the western boundary of the trial area, Dr Powell records that the brothers William and Cadley Sambo told her that their mother Lucy died and is buried on a farm at Barbalin, which is about 10.5 kilometres west of Mukinbudin. Cadley Sambo and Linda Champion took Dr Powell to the Southern Cross / Mukinbudin area so that they could show her places that were important to them and their old people. Dr Powell expressed the opinion that neither of those elders would have taken her there and shown her those places if they thought that by doing so they would be trespassing in someone else's country.

[931]

Dr Powell expressed the opinion that the name 'Kabul' is an alternative pronunciation of the tribal or language name 'Kaparn' (which is also spelt 'Kapurn'). Dr Powell records that the name 'Kabul' occurs in the ethno-historical records, being referred to by David McDonald as the name of a group and by Tindale (in 1974) as the name of a language. Dr Powell notes that the name reflects Tindale's pronunciation of Don Roundhead's word 'Kapurn'. The term 'Kabul' occurs in two newspaper articles in September 1959 describing the death of Frank Roundhead, stating that Frank Roundhead was a member of "the Kabul tribe". Gary Sambo gave evidence that Frank Roundhead told him that he and his family are Kapurn people.
Dr Powell notes that, in the Kaalamaya English Dictionary (Hanson and Reynolds, 2019), the word 'Kapurn' is translated as "man, Aboriginal, fully initiated person". In discussing the Karlamaya language, Dr Powell notes that she has no formal linguistic training and she relies on the findings of those who have linguistic expertise. Dr Powell observed that the linguistic records, for example Oates (1975), Wurm (1972) and O'Grady, Voegelin and Voegelin (1966), associate the trial area with the Karlamaya language and its speakers. Nash (2002) identified a cluster of historical wordlists recorded from speakers at Coolgardie, Kalgoorlie, Southern Cross and Mukinbudin that have the word Kabboon / Kabboorn meaning 'man' or 'person'. He further noted that this particular word for man occurs in language varieties distinguished as Kaalamaya (variations Ka'la:mai, Kalamaya, Kalamai) and Kalaaku (variations Kalarko, Kalaku, Gala:gu, Kalaako, Galaagu) and that these two language varieties are classified by linguists as members of the Mirniny (Mirning) subgroup of the south-west group of the Pama-Nyungan family. Having regard to the linguistic material, Dr Powell expressed the opinion that the ethnonym Kaparn (and its accepted variants which include Kaprun, Gubrun and Kapurn) is derived from the word for man or person, which is recorded in the language variety distinguished in the linguistic literature as Karlamaya.
Dr Powell also expressed the opinion that the ethno-historical material provides evidence that Aboriginal people across the trial area spoke the Karlamaya language. For example, a wordlist recorded by Daisy Bates in 1908 from persons she met at Southern Cross includes the words "Kabboorn" and "Kabboon" meaning man or person. The Tindale data records concerning Charlie Paddy, obtained in 1939 in Southern Cross, record that Charlie Paddy gives "Kala:mai for the name of the language of the Southern Cross tribe". In the interview conducted by Tindale with Don Roundhead in 1966, Don Roundhead said that his people had "one lingo" (language) which he identified as Kapurn (a language name that Tindale heard as 'Kabul').
With respect to the extent of the country associated with the ethnonyms Karlamaya / Kapurn / Kabul, Dr Powell examined the ethno-historical accounts and maps pertaining to the trial area, the writings of David McDonald who settled in the Eastern Goldfields region and the evidence of Aboriginal informants who Dr Powell interviewed during her research between 1997 and 2000. On the basis of that material, Dr Powell summarised her opinions as follows:

[937]

Section 3 addresses the question of why the practice of initiation was discontinued in the trial area. Dr Powell explained that the 'practice of initiation', to which the question is directed, concerns the initiation of youths involving a series of man-making rituals which included circumcision and subincision. During Dr Powell's 1997-2000 fieldwork in the Eastern Goldfields, these rituals were referred to as 'Men's Business' and 'Going through the Law'. Dr Powell stated that she had been told that while in former times the Marlinyu Ghoorlie claimants' forebears had participated in such man-making rituals, Men's Business initiation rituals had been discontinued in the trial area and that the custodianship of the 'Business Sites' and mythological sites in the trial area was under challenge.
The section commences by locating the trial area in relation to initiation practices in the broader region. Dr Powell observed that the trial area is located in the western part of the region where male initiation involved several stages, during which youths were circumcised and then subincised before being allowed to take their promised / betrothed wife / wives. Neighbouring groups to the south-west of the trial area did not practice these particular man-making rituals. The trial area is associated with several important mythologies, including the 'Two Men' (the Garngubuladja, also known as the Wati Kutjarra) and the 'Seven Sisters', whose travels ('lines') extend east and north-east beyond the trial area. The Coolgardie / Kalgoorlie and Southern Cross districts were once major centres for what is nowadays termed 'Men's Business' and 'Women's Business'. Belief in the eternal spirit world of tjukurpa and rituals associated with these beliefs continue today, even though major 'Men's Business' meetings associated with this belief system now occur outside the trial area. Dr Powell collected some information about the participation of the Marlinyu Ghoorlie claimants' forebears in a regional system of 'Law Business' and its associated initiation rituals. Linda Champion told Dr Powell that "Law was powerful at Coolgardie and Southern Cross" and described "the Business line" travelled by her father (Ted Champion) for Law Business within and beyond the trial area. Dr Powell's fieldnotes from her research in 1997-2000 contain references to 'Law Men' being King Billy, Dick Donaldson, Frank Roundhead, Cecil Wilson, Don Roundhead, Phil Donaldson, Willie Sambo, Ted Champion and Jack Champion, who are the forebears of the members of the Marlinyu Ghoorlie claimant family groups known as the Donaldsons, Champions, and Sambos.
Dr Powell stated that, historically, people from the east and north used the 'Business sites' in the trial area and joined with Kaalamaya / Kapurn people for ceremonies at these sites. Dick Donaldson's son Phil Donaldson was the last initiated custodian for the Coolgardie sites, having taken that responsibility after the death of his father, Dick Donaldson, who in turn took over the responsibility from King Billy, his wife's father.
Dr Powell stated that the date when the last 'Men's Business' meeting occurred in the trial area is not certain but, having regard to the biographical data of the youngest of the initiated forebears of the Marlinyu Ghoorlie claimants (Phil Donaldson and Willie Sambo) and those who attended such meetings, and the information received by Dr Powell from informants during her research, Dr Powell concluded that it may have been sometime in the 1930s or early 1940s. Information provided to Dr Powell during her research indicates that there were likely to be a range of reasons that initiation practices were discontinued in the trial area, all of which can be attributed to the extent of European settlement following then discovery of gold. The beliefs and practical requirements associated with initiation practices (which required extensive travel by foot, lasting many weeks) conflicted with the pressures associated with European settlement, including requirements for employment and the suppression of Aboriginal religious belief system in favour of Christian beliefs.

[941]

Section 5 of the report addresses the basis on which the Cooper respondents assert rights in the eastern part of the trial area through filiation to the woman known as Aneida or Nada Bilbear whose son was Thomas Henry Cooper.
This section includes consideration of Dr Powell's records of statements made to her by several descendants of Thomas Henry Cooper during her fieldwork in 1997-2000. The descendants who spoke with Dr Powell at that time included: June Abdullah (the daughter of Thomas Henry Cooper's daughter Lorna), Susan Wyatt (the daughter of Thomas Henry Cooper's son Norman Cooper Snr and Betty Lowah), Betty Lowah (Norman Cooper Snr's wife), Milton Cooper (the son of Norman Cooper Snr and Betty Lowah), Victor Cooper (also the son of Norman Cooper Snr and Betty Lowah, and one of the Cooper respondents), and Charmaine Cooper (the daughter of Thomas Henry Cooper's daughter Bessie). Dr Powell gave evidence that none of the descendants whom she interviewed had personal knowledge of Thomas Henry Cooper and they admitted that they knew little about him. The descendants knew that he was raised by George Astley Cooper and his wife Jessie Cooper (née Hasthorpe) on Gindalbie Station as a member of their family; that he had enlisted in World War I; married Trilby Ashwin and then worked as a stockman, miner, and for the Mount Margaret Mission before moving to Kalgoorlie, where he died from a heart attack. His descendants recalled that he separated from his wife (Trilby) and children when they were quite young. They recalled that sometime after his death, Trilby re-partnered with a non-Aboriginal man named George Cooper, whom they knew as 'Uncle George'. Dr Powell surmises that this man was likely the son of George and Jessie Cooper (who raised Thomas Henry Cooper).
Based on the interviews conducted during her 1997-2000 research, Dr Powell concluded that at the time that the Central West Goldfields claim was filed in 1998, the descendants of Thomas Henry Cooper had no knowledge of his mother.
In this section of the report, Dr Powell also examines the governmental and ethno-historical records relating to Thomas Henry Cooper. Those records are discussed in more detail later in these reasons. It is sufficient to note at this point that the Native Affairs records for Thomas disclose that he was the son of a European man named Arthur Hasthorpe and an Aboriginal lady named Nada Bilbear and was born around 1897. He grew up on Gindalbie Station, a pastoral holding of George Astley Cooper who was married to Arthur Hasthorpe's sister, Jessie. Gindalbie is to the east of the trial area. He married Trilby Ashwin, the daughter of Telpha Ashwin, on 29 March 1923. The Tindale records show that Thomas was interviewed at Mount Margaret Mission on 13 May 1939. From the available Tindale records, Dr Powell concludes that Tindale was unable to obtain any information about Thomas Henry Cooper's tribal affiliation. The Tindale records identify Thomas's mother as a woman named Aneida (Nada Bilbear) and record that she was born in Kalgoorlie and her tribe was 'Maduwongga'. Dr Powell considers that that information did not come from Thomas (as Thomas was unable to provide his own tribal affiliation).

[958]

Dr Powell's evidence was consistent with, and complemented, the evidence given by Mr Wood and Ms Taylor. Dr Powell had interviewed and knew a number of Aboriginal people who resided within the trial area and who are the forebears of the present-day claimants. As such, Dr Powell was able to provide insights based on her first-hand interviews and contacts with such persons.
The Cooper respondents submitted that there is a need for caution in approaching her opinions for two reasons. First, during the expert evidence hearing, Dr Powell expressed strong views formed from her time working in Kalgoorlie in the late 1990s, stating that Wongai people have "no ancestral connection whatsoever" to Kalgoorlie, "came into that country ... for work mostly, from the missions" and contended that a lot of Wongai people "didn't know the history of the Kapurn people". That expression of strong views formed a quarter of a century ago cast doubt on whether Dr Powell could bring an objective assessment to the evidence in a manner consistent with the role of an independent expert who is assisting the Court. Secondly, Dr Powell was willing to express firm conclusions based on manifestly inadequate evidence. For example, her firm conclusion about what was known of Nada Bilbear by the four Cooper respondents in the early 2000s was based on her only having met one of the Cooper respondents (Victor Cooper) once in a meeting attended by other people and for where her field notes contained no record of any comments by Victor.
I reject those submissions. Dr Powell's two expert reports were detailed, carefully reasoned and balanced. Dr Powell engaged thoroughly with the archival and ethno-historical material, and had the benefit of extensive anthropological research in the trial area in an earlier period. In my view, Dr Powell's anthropological knowledge of the trial area greatly surpassed that of Mr Leo.
Dr Powell's field notes of her research in 1997-2000 are historical records of statements made by Aboriginal informants with respect to traditional rights and interests in the trial area, some of whom have since died. The information contained in the field notes, as referred to in Dr Powell's reports, is therefore valuable primary evidence before the Court which I have taken into account. Dr Powell's research in the late 1990s also included interviews with members of the Cooper family other than the Cooper respondents. The information disclosed in the interviews, as recorded in field notes and referred to in Dr Powell's reports, is also valuable primary evidence before the Court which I have taken into account.
In my view, Dr Powell's two reports contained careful, detailed and knowledgeable examination of ethno-historical records relating to the trial area, combined with information obtained from numerous Aboriginal people living within the trial area in the period of her research between 1997-2000. I consider Dr Powell's analysis to be credible and reliable. Further, her observations with respect to Mr Leo's opinions demonstrate the shallowness and lack of support for those opinions. Where there is any conflict between the opinions of Dr Powell and Mr Leo, I prefer the opinions of Dr Powell.

[986]

On 28 November 2023, the Karratjibbin applicant filed an interlocutory application seeking leave to file and serve a second expert report of Dr Corrigan outside of the time permitted by the Court timetable. The application was accompanied by an affidavit affirmed by Dr Corrigan on 26 November 2023 which, amongst other things, annexed a report titled "Supplemental anthropological report concerning the connections of Billy Yambinut and Annie Mcintyre to the Karratjibbin native title claim area" dated 17 November 2023. The affidavit explained that Dr Corrigan had been briefed to prepare a supplementary report on 3 October 2023 by the solicitors to the Karratjibbin applicant (whereas for his first report, Dr Corrigan was briefed by the NTSG). Dr Corrigan further explained that he was unable to prepare the supplementary report within the Court timetable due to other work commitments. At an interlocutory hearing, leave was granted to the Karratjibbin applicant to tender Dr Corrigan's second report.
The second report did not comply with the orders of the Court concerning reply reports and, indeed, was not a reply report. Further, the report did not disclose the instructions given to Dr Corrigan with respect to the preparation of the second report. The instructions given to Dr Corrigan on 3 October 2023 were separately tendered in evidence. The instructions appropriately reproduced the orders of the Court made on 10 July 2023 with respect to the content of reply reports. However, the second report does not respond to those instructions.
An email exchange occurred between the solicitors for the Karratjibbin claim group and Dr Corrigan between 3 and 5 November 2023. On 3 November, Dr Corrigan informed the solicitors for the Karratjibbin claim group that he had prepared "rough notes on Billy Yambinut that I have been trying to find time to pull into a more concluded style". Later that day, the solicitors for the Karratjibbin claim group replied by asking Dr Corrigan if his reply report could include a section on Billy Yambinut as well as a supplementary report in accordance with the Court's orders. Later the same day, Dr Corrigan replied in the following terms (emphasis added, errors in original):

[999]

(a) Dr Corrigan did not draft his first report. He did not undertake the field work or other primary research upon which the opinions expressed in that report were based. He did not read at least one of the key sources upon which the first report relied in reaching the conclusion that the Karratjibbin claim group had a connection to the Karratjibbin claim area (being interviews conducted by Dr Shaw with Reg Yarran Snr between June 1999 and May 2002), but instead relied upon a summary prepared by Dr Bennetts. His evidence given in cross-examination demonstrated that his knowledge of that source material was limited to that which was broadly stated in his report such that he could not respond to basic questions and propositions put to him about that material.

(b) Dr Corrigan was reluctant to answer questions put to him in cross-examination and sought to provide answers to questions not asked (particularly with respect to the manner in which the first report was prepared).

(c) Dr Corrigan's explanation as to why, in the joint expert report prepared at the conference of experts, he stated that it was beyond the terms of his engagement to express any opinion about whether Nellie Champion was a member of the group of persons who possessed native title rights and interests in the Karratjibbin claim area at effective sovereignty was not credible. At the time of the experts' conference, Dr Corrigan had been briefed to prepare a supplementary opinion addressing, inter alia, "[a]ny concern with Nellie Champion as an apical ancestor you can raise in response to the discussion about her by the MG anthropologists". During the concurrent evidence, he expressed his agreement that the Marlinyu Ghoorlie claimants do possess native title rights and interests in the trial area.

(d) Dr Corrigan's second report was prepared in compressed time and in circumstances where Dr Corrigan sought guidance from those instructing him as to what the report should address and where he considered he had limited time given other commitments. Dr Corrigan again relied upon the source material of Dr Shaw which, on his own evidence, he did not read and instead relied upon a summary prepared by Dr Bennetts.

[1000]

I accept submissions (b), (c) and (d) made by the Marlinyu Ghoorlie applicant and submissions (a), (b) and (d) made by the State. I elaborate on those points below.
In relation to Dr Corrigan's independence (submission (e) made by the Marlinyu Ghoorlie applicant), I do not doubt that Dr Corrigan's first report was prepared independently. In respect of that report, Dr Corrigan was instructed by the NTSG. Indeed, in his first report, Dr Corrigan rejected several genealogical contentions put forward by Reg Yarran Jnr (on the basis of Reg Yarran Jnr's own research) as being contrary to the available evidence. However, a question does arise whether and to what extent Dr Corrigan failed to act independently in the preparation of his second report. As noted above, there are problematic aspects of the communications between Dr Corrigan and the solicitors for the Karratjibbin claim group in respect of the preparation of the second report. It was inappropriate for Dr Corrigan to ask to be directed to evidence that enhanced the Karratjibbin claim group's case. Dr Corrigan's role was to assess the entirety of the evidence in an objective manner. It was also inappropriate for the solicitors to ask Dr Corrigan about any concerns he had with respect to Nellie Champion being an apical ancestor for the Marlinyu Ghoorlie claim group. The course of that correspondence suggests that neither the solicitors for the Karratjibbin claim group nor Dr Corrigan understood the proper role of an expert witness in the Federal Court. Also as noted earlier, I consider that Dr Corrigan's willingness to rely upon a four-page extract of a report by Mr Stevens demonstrates a lack of professionalism and independence.
Ultimately, it is not necessary for me to express a concluded view on whether Dr Corrigan displayed a willingness to "sacrifice his independence" in preparing his second report and giving evidence on behalf of the Karratjibbin claim group. That is because I found Dr Corrigan to be an unsatisfactory witness when giving evidence. Dr Corrigan was vague, confused and uncertain about the contents of his own reports and the documents cited in his reports. He frequently attempted to avoid answering direct questions, particularly about his involvement in preparing his reports, and provided unclear answers. It was apparent that the contribution that Dr Corrigan had made to the preparation of his reports (both the first and the second report) was very limited. Dr Corrigan relied substantially on the work undertaken by Dr Bennetts. No explanation was proffered for why the reports were not co-authored by Dr Bennetts, which would have provided an opportunity for Dr Bennetts to be cross-examined about his work. Dr Corrigan displayed very limited knowledge of the primary materials upon which his reports were based and, in cross-examination, resorted to vague and generalised statements which were of little assistance.
To take some examples for the purposes of illustration, Dr Corrigan was asked in cross-examination to express his opinion on the place of birth of each of Beatrice Yarran and Julia Penny. He answered that he would need to refresh his memory from his reports. Beatrice Yarran and Julia Penny are the forebears from whom the Karratjibbin claim group contend that they acquired rights and interests in the Karratjibbin claim area. That Dr Corrigan was unable to answer basic questions about their personal biographies without refreshing his memory (in other words, re-reading his report) was indicative of his limited involvement in the preparation of the report. The following exchange was typical of Dr Corrigan's vague answers during cross-examination:

[1008]

In this proceeding, the answers to the first and third questions are relatively uncontroversial. The answer to the second question, whether Nada Bilbear held native title rights and interests in the eastern part of the trial area, is controversial.
In his instructions, Mr Leo was asked to confine his research to six days of work. Mr Leo was briefed with an affidavit made by each of the Cooper respondents, an affidavit made by their solicitor, Michael Pagsanjan, and a redacted copy of the Wood 2022 Report (the report dated 30 September 2022 prepared by Mr Wood for the NTSG titled "Report on additional persons asserting customary rights and interests in the Marlinyu Ghoorlie claim area"). In the first report, Mr Leo disclosed that his report was based on an examination of the materials he was briefed with, some relevant online material, and a set of archival material from 1939, plus fieldnotes made during three interviews conducted by telephone with: Gary Cooper and Maria Bandry together; Norman Cooper; and Victor Cooper. Mr Leo confirmed during cross-examination that he had not examined any of the underlying materials referenced in the Wood 2022 Report.
It should be highlighted that, prior to this proceeding, Mr Leo had never undertaken any anthropological research with respect to the Goldfields region of Western Australia, nor any anthropological research with respect to Western Desert Aboriginal people.
Despite having no background in relation to the trial area and despite the very limited research undertaken by Mr Leo in preparing the first report, Mr Leo considered that he was able to express the opinion that it is more likely than not that Nada Bilbear was a member of a pre-sovereignty society that held native title rights and interests in the eastern part of the trial area at (and before) effective sovereignty. It is an opinion that is favourable to his clients, formed in a very short space of time, and formed on the basis of very limited materials.
Even more striking, in the first report Mr Leo expressed the opinion that the eastern part of the trial area is an "interstitial zone". Mr Leo's use of the word 'interstitial' does not accurately convey his intended meaning. The word 'interstitial' refers to an intervening space, whereas the first report makes clear that Mr Leo is using the word 'interstitial' to refer to an 'overlapping' or 'transitional' zone, being an area in which more than one form of traditional laws and customs was operative at sovereignty. The opinion is expressed by Mr Leo in the course of undertaking a precis of the Wood 2022 Report. Mr Leo states that certain of the observations made by Mr Wood in his 2022 report "fits, in my view, with an understanding of the 'eastern parts' being an interstitial zone". That is the first occasion on which Mr Leo refers to the concept of an interstitial zone. Mr Leo's reasoning is that the observations of Mr Wood "fit" with a seemingly pre-determined view of Mr Leo that the eastern parts of the trial area are an overlapping or transitional zone with respect to traditional laws and customs. That view was formed by Mr Leo on the basis of the six days of work he conducted after being instructed on behalf of the Cooper respondents. It is again an opinion that is favourable to his clients, formed in a very short space of time, and formed on the basis of very limited materials.
The opinion is not supported by any research undertaken by Mr Leo, nor by the affidavit evidence given by the Cooper respondents, and the basis for arriving at the opinion is not truly explained in his report. It is not an opinion expressed by Mr Wood in his 2022 report. Mr Wood expressed the opinion that, at effective sovereignty, the trial area was "occupied by a distinctive population known by the names Karlamaya and Kapurn" and that rights and interests in the country are conferred by descent from ancestors of those people. In my view, Mr Leo's opinion that, at sovereignty, the eastern parts of the trial area constituted an interstitial zone in which there are overlapping native title rights and interests is an attempt to accommodate the claims made by the Cooper respondents with the overwhelming evidence, referred to in the Wood 2022 Report, that the Kapurn people were the traditional owners of the trial area at effective sovereignty.
During cross-examination, Mr Leo stated that his opinion concerning the so-called 'interstitial' zone in the eastern part of the trial area had evolved as he reviewed additional evidence. Whereas in his first report he expressed the opinion that, at effective sovereignty, the eastern part of the trial area was occupied by Aboriginal people who acknowledged and observed different traditional laws and customs giving rights and interests in the land and waters, at the time of trial his opinion was that, at effective sovereignty, the eastern part of the trial area was occupied by a single Aboriginal society (in the Yorta Yorta sense of that word), albeit with differences in the 'expression' of their traditional laws and customs. During cross-examination, Mr Leo sought to explain the change in his opinion by admitting that his "first report was somewhat basic and preliminary". So much can be accepted. However, nowhere in his first report does Mr Leo expressly acknowledge the limitations of his work. Instead of expressing tentative or preliminary views in recognition of the very limited work he had done, Mr Leo's first report expressed concluded opinions on central issues in the proceeding. In my view, the opinions expressed by Mr Leo in his first report were not the product of an impartial assessment of the issues based upon specialised knowledge. In expressing those opinions, I consider that Mr Leo was acting as an advocate for the Cooper respondents. The report deserves no weight.

[1010]

5.4 In the First Report you express the opinion that is it more likely than not that:

Nada Bilber was a member of a pre-sovereignty society that held Rights & Interests in the eastern part of the Claim Area at (and before) Effective British Sovereignty (at [135]); and

the eastern part of the Claim Area was an interstitial zone, where two societies overlapped, and whereby there was a 'graded/phased' transition of cultural practices between the society to the east, northeast and north, which is commonly termed Western Desert people, and the society to the west, southwest and south, which includes the Karlamaya/Kapurn people and the Ngadjumaya/ Marlpa, amongst others (at [144]).

5.5 You are requested to provide your opinion as to the following matters:

the extent of the land and waters of the interstitial zone within the Claim Area;

the pre-sovereignty society of which Nada Bilber was a member;

the nature and content of the normative body of laws and customs (traditional laws and customs) of each pre-sovereignty society in the interstitial zone in the Claim Area that relate to rights and interests in land or waters;

whether the pre-sovereignty society referred to at subparagraph 5.5(b) above has substantially maintained its existence from generation to generation in accordance with the traditional laws and customs through to the present time;

whether, by the traditional laws and customs that are acknowledged and observed by them, each succeeding generation of the pre-sovereignty society referred to at subparagraph 5.5(b) above (including Gary Cooper, Maria Bandry, Norman Cooper and/or Victor Cooper), have maintained a connection with the Claim Area;

whether, by the traditional laws and customs that are still observed by them, Gary Cooper, Maria Sandry, Norman Cooper and/or Victor Cooper, together with other present day members of the pre-sovereignty society referred to at sub-paragraph 5.5(b), have traditional rights and interests in the Claim Area and, if so, what part of the Claim Area;

who are the persons, or each group of persons, holding the common or group rights in the interstitial zone within the Claim Area pursuant to the traditional laws and customs they continue to acknowledge and observe?

[1018]

Despite not undertaking his own research, Mr Leo considered himself able to draw significant conclusions on the basis of that ethno-historical material. Indeed, it is a striking and recurrent feature of Mr Leo's second report that he states opinions or conclusions on the basis of a single piece of evidence. For example, on the basis of a local news article and a police telegram referring to an 1896 event at Kanowna involving conflict between two Aboriginal groups, Mr Leo expressed the opinion that the material supports the view that the Coolgardie / Kanowna area is part of one land-affiliated grouping and that Southern Cross is the territory of another land-affiliated grouping. The historical information is insufficient to support any conclusion of that kind. The example illustrates Mr Leo's approach, which permeates his second report, to select information that he considers to be favourable to his pre-determined thesis and state conclusions based on the selected information. Another striking example is Mr Leo's treatment of the writings by David McDonald in the mid to late 1890s. Despite not reading those materials himself, Mr Leo stated that the work "carries significant weight due to the time period, geographical scope, and interpersonal relationship he formed" and that the work supports his opinion that that the Coolgardie / Kanowna area is part of one land-affiliated grouping. As discussed later in these reasons, McDonald's writings provide significant evidence that the traditional owners of the eastern part of the trial area at the time of effective sovereignty were the Kabul (being another name for the Kapurn people), and that those people were distinct from other groups to the north-east of the trial area, contrary to the opinion expressed by Mr Leo.
Mr Leo performed his own analysis of the records created by Norman Tindale and Joseph and Bee Birdsell during their expedition through the Goldfields region in 1939. Mr Leo also considered the transcript of Norman Tindale's tape-recorded interview with Don and Noona Roundhead at Kalgoorlie on 19 April 1966 (a copy of which was annexed to Ms Taylor's report). In relation to the ethno-historical material, Mr Leo stated that he placed the greatest weight on the 1939 Tindale / Birdsell material. In doing so, Mr Leo failed to take into account the fact that the Tindale / Birdsell material was created in 1939, well after sovereignty, and the evidence that indicated a migration of Western Desert people into the Kalgoorlie area after European settlement of the area. Mr Leo stated that he placed lesser weight on the 1907 work of Daisy Bates because it generated far less and more limited genealogical information, and provided only a smattering of cultural and social information. That conclusion was reached despite the fact that Mr Leo had not himself reviewed the Bates material.

[1020]

Mr Leo's report contains a lengthy discussion of lay evidence. This section of Mr Leo's report suffers from numerous deficiencies.
First, while Mr Leo adopts an uncritical approach to the evidence given by the Cooper respondents, at times he adopts a critical approach to the evidence given on behalf of the Marlinyu Ghoorlie applicant. Many of the criticisms lack substance. For example, Mr Leo stated that Brian Champion Snr's witness statement dated 3 February 2023 is "seemingly inconsistent in its treatment of the rules of recruitment" (by which Mr Leo means acquisition of rights and interests in Kapurn country). In support of that statement, Mr Leo refers to Brian Champion Snr's statement that a non-Kapurn woman (for example Noongar) marries a Kapurn man, the woman does not acquire rights in Kapurn country, and suggests that that statement is inconsistent with the statement that Dick Donaldson was adopted into Kapurn after he married King Billy's daughter, Alice Minjin. The inconsistency is not apparent. The first statement concerns the question whether rights and interests are acquired by marriage, while the second statement concerns the question whether rights and interests can be acquired through adoption, including adult adoption.
Second, Mr Leo confuses the concise statements which were filed in the proceeding with evidence. The concise statements are in the nature of pleadings and are not received by the Court as evidence. Significantly, Mr Leo refers to the concise statement of Denise Colbung as if it constituted evidence before the Court. Not only is the concise statement not evidence, Ms Colbung withdrew as a respondent to the proceeding and her concise statement was not before the Court.
Third, Mr Leo had regard to and placed reliance on written statements and affidavits of people who did not give evidence in the proceeding or whose statements and affidavits did not form any part of the evidence in the proceeding. Those persons and statements were:

[1033]

Mr Leo then proceeds to recite, and adopt, most of the Cane 2023 Report.
I place no weight on this section of Mr Leo's report (which recites the Cane 2023 Report). In my view, this section of Mr Leo's report does not constitute expert evidence admissible under s 79 of the Evidence Act. The opinions expressed by Mr Leo are not based wholly or substantially on his specialised knowledge. The opinions merely constitute the adoption of the (draft) opinions of another anthropologist, Dr Cane. It is both impermissible as a matter of evidence, and unfair to the other parties, to permit the Cooper respondents to adduce evidence of the (draft) opinions of Dr Cane through the device of having those opinions recited by Mr Leo.
In respect of the Palmer 2009 Report and the Palmer 2012 Report, Mr Leo acknowledges that the reports were prepared in connection with the Ngadjumaya claim, and also that he was not able to "read all the documents provided in relation to the Ngadju People application". Mr Leo then highlights "four aspects" of the two reports.
First, Mr Leo refers to some discussion of the connection between the name "Kalarku" and the Ngadju and Mirning languages, but does so in a piecemeal manner such that it is impossible to place any weight on the observations.
Second, Mr Leo refers to some discussion of the relationship of the Ngadju to the "Western Desert cultural bloc", but again in a wholly piecemeal manner such that it is impossible to place any weight on the observations.
With respect to the third and fourth aspects, Mr Leo reproduces doubts expressed by Dr Palmer about the reliability and creditability of Daisy Bates's material. Again, what is reproduced is piecemeal and is largely focussed on Bates's discussion of totemism. In circumstances where Mr Leo did not himself research the Bates material relevant to this proceeding, his reproduction of the views of Dr Palmer expressed in connection with a different native title claim carries no weight.
For those reasons, I place no weight on the section of Mr Leo's report which refers to the Palmer 2009 Report and the Palmer 2012 Report.

[1040]

During the expert evidence hearing, I found Mr Leo to be an unimpressive witness. His answers were frequently vague and abstract to the point of being meaningless. My impression was that he would seek to avoid answering a direct question if the answer was unfavourable to the interests of the Cooper respondents. Mr Leo also proffered opinions on matters for which he had no apparent basis. Those conclusions can be illustrated by the following examples.
During cross-examination, Mr Leo was unable to provide a satisfactory explanation of his theory that the eastern part of the trial area was, at effective sovereignty, an "interstitial zone" comprising one Aboriginal society in a Yorta Yorta sense, but with separate groups recognising different laws and customs. Mr Leo was asked whether there is an incompatibility between, on the one hand, traditional laws and customs which recognise rights and interests in land solely through principles of descent and, on the other hand, traditional laws and customs which recognise rights and interests in land through 'multiple pathways' (a feature of Western Desert laws and customs), such that the two systems could not operate compatibly over the same area (the so-called 'interstitial zone'). Mr Leo avoided giving a direct answer to the question. Instead, his answer focused on Western Desert laws and customs and stated that "there is an inherent flexibility in that Western Desert law". Mr Leo then added that, in his experience, "strategic amnesia" occurs. It was not entirely clear what Mr Leo meant by that statement, or how it related to the question he was asked. Mr Leo was asked specifically whether he was expressing the opinion that there had been "strategic amnesia" in respect of the trial area, and he answered that he was speaking "generically". No aspect of Mr Leo's answer engaged directly with the question.
In support of his opinion that the eastern part of the trial area was an interstitial zone in which rights and interests in land were acquired through 'multiple pathways', Mr Leo proffered the following observation:

[1042]

The premise underpinning that observation was that Aboriginal people, who were interviewed by Tindale in or around the trial area, volunteered their birthplace as an indicator of their connection to country. None of the other anthropological witnesses gave support to the premise, recognising that it was Tindale, together with Birdsell, who sought locational data (such as birthplace) from the Aboriginal people they interviewed along with genealogical information and tribal names and identities. In my view, the premise of Mr Leo's observation was unsound.
In support of his opinion that Western Desert laws and customs governed rights and interests in land in (at least) the eastern part of the trial area, Mr Leo referred to the spiritual and ceremonial practices associated with the eastern part of the trial area, including initiation practices and stories such as the Wati Kutjarra (Two Men) narratives. However, when pressed in cross-examination, Mr Leo agreed that attendance at such ceremonies in the eastern part of the trial area would not necessarily give a person rights in the land. Mr Leo then added: "But that the very existence of those rights on that country, their emplacement ... and that people believe in that spiritual power and it connects them". The foregoing statement is an illustration of Mr Leo's answers being vague and abstract to the point of being meaningless. Later in the cross-examination, Mr Leo was asked whether he accepted that there is no evidence in the Tindale journal entries relating to the Mount Margaret Mission that would support a conclusion that the people that Tindale spoke to are the "owners of country at Kalgoorlie or Coolgardie". Mr Leo responded by referring to the fact that Tindale recorded in his journal the Wati Kutjarra narratives, which end in the Kalgoorlie / Coolgardie area. Mr Leo was then asked whether he agreed that the Wati Kutjarra narratives travel over vast distances, and that the Aboriginal people interviewed by Tindale at the Mount Margaret Mission were not claiming ownership of all of the sites to which the narratives relate. Mr Leo agreed, but proffered that while the Tindale record does not suggest that the Aboriginal people interviewed were claiming ownership of the sites along the story line, "they're claiming that their story connects to there, the story that they hold and know of and is a very obviously important part of their religious practices". Again, Mr Leo's answer was tangential to the question being asked, which was directed to the existence of evidence supporting a conclusion that a person held traditional rights and interests in the land of an ownership kind.
In cross-examination, Mr Leo was asked about the writings of the early European settler, David McDonald, and his use of the word "Kabul" to refer to the Aboriginal people in the trial area. Mr Leo agreed that "Kabul" (as used by McDonald), "Kabboon" (as used by Bates) and "Kapurn" (as used by the Marlinyu Ghoorlie claim group) are different spellings for the same word. Mr Leo then proffered that the word was not used by McDonald or Bates as indicating a tribal or group identity or affiliation, but merely as a generic word for people. As Mr Leo had not read either the writings of McDonald or the records of Bates, he had no basis for expressing that opinion. Ms Taylor, who had closely examined all of the historical writings, expressed the contrary opinion, which I accept. Indeed, the writings of McDonald include the following:

[1053]

Dr Powell stated that Daisy Bates recorded the presence of totemic patrilineal descent groups in the trial area. These groups' laws and customs derived from their proprietary relationship to their areas and included laws and customs relating to, but not limited to, the use and management of their area's natural resources, its religious sites and pathways, access to the area and/or its resources, management of trespass, and trade. Members of these local totemic descent groups also had laws and customs relating to usufructuary rights in the areas of their wives or mother's descent groups.
Dr Corrigan's opinion was stated in a vague and generalised manner. He expressed the opinion that the laws and customs that were likely acknowledged by the groups of Aboriginal people in occupation of the trial area at sovereignty could broadly be described as systems to look after and manage country in accordance with rules governing membership of the groups and behaviour expected of members of the group. These rules are likely to have included processes for rejecting free access to strangers, which economic items could be taken in what manner by whom, what marriages might validly occur and how rules of descent (including valid adoption of children, or valid incorporation of particular individuals into corporate groups) would facilitate particular uses and interactions between lands, waters and individuals. Dr Corrigan expressed broad agreement with the opinion of Mr Wood, stating that: "Many of the rules governing these memberships of groups, uses of land and waters, and interactions between relevant peoples are captured satisfactorily by Mr Wood's October 2023 report for at least the large part or possibly all of the Marlinyu Ghoorlie claim area". Dr Corrigan noted that the question whether Western Desert laws and customs "might be in play" in the eastern part of the trial area is a matter considered in Mr Leo's second report, but Dr Corrigan did not express an opinion on that possibility.
Mr Leo expressed the opinion that the laws and customs "of rights-holding" that were likely acknowledged by the groups of Aboriginal people in occupation of the trial area at sovereignty can be termed 'multiple pathways'. Mr Leo added that the laws and customs "of religious practices in so far as they provide connection to country include male initiation practices, female initiation practices, and emplaced tjukurpa mythology and associated ceremonial activity.

[1055]

(a) In relation to Kaddee, each of Mr Wood, Ms Taylor and Dr Powell agreed that she possessed rights and interests across the breadth of the trial area including Mount Burges, Coolgardie, Kalgoorlie and Southern Cross based on data recorded by Daisy Bates. Dr Corrigan considered that the question was outside his terms of reference. Mr Leo considered that Kaddee's rights and interests were in the Coolgardie area based principally on Daisy Bates's data.

(b) In relation to Warada, each of Mr Wood and Dr Powell agreed that he possessed rights and interests across the breadth of the trial area but with a particular association with Coolgardie. Ms Taylor considered that Warada possessed rights and interests around Coolgardie, based on Daisy Bates's description of Warada as an "owner" of Coolgardie. Dr Corrigan considered that the question was outside his terms of reference. Mr Leo also considered that Warada's rights and interests were in the Coolgardie area based principally on Daisy Bates's data.

(c) In relation to Lucy Sambo, each of Mr Wood, Ms Taylor and Dr Powell agreed that she possessed rights and interests across the breadth of the trial area from Kalgoorlie (where she was born) to the Coolgardie region (where she lived) and the Southern Cross area (where she lived) to Mukinbudin. Dr Corrigan considered that the question was outside his terms of reference. Mr Leo considered that, more likely than not, Lucy Sambo's rights and interests were in the Broad Arrow area based on her father (Broad Arrow Tommy) and her descendant's family history.

(d) In relation to Nellie Champion, each of Mr Wood, Ms Taylor and Dr Powell agreed that she possessed rights and interests across the breadth of the trial area including Mount Burges, Coolgardie, Kalgoorlie and Southern Cross based on oral accounts of Linda Champion and data recorded by Daisy Bates, the Tindale genealogy and the welfare files. Dr Corrigan considered that the question was outside his terms of reference. Mr Leo considered that Nellie Champion's rights and interests were in the Southern Cross area based principally on Tindale and Birdsell's 1939 data.

(e) In relation to Tom Roundhead, each of Dr Powell, Ms Taylor and Mr Wood agreed that he possessed rights and interests in the trial area, noting multiple sources of historical evidence associating the Roundhead family as Kapurn and Tom as identified with Coolgardie. Mr Leo agreed that Tom Roundhead possessed rights and interests in the Coolgardie area. Dr Corrigan considered that the question was outside his terms of reference.

(f) In relation to Billy Yambinut, Dr Corrigan considered that he possessed rights and interests in the trial area. Each of Dr Powell and Ms Taylor disagreed that he possessed rights and interest within the trial area, stating that there was insufficient evidence in support of the claim. Mr Leo also expressed the opinion that there was insufficient evidence to support the claim. Mr Wood explained that he did not have sufficient time to address Billy Yambinut.

(g) In relation to Toby Willams Snr, each of Dr Powell and Ms Taylor disagreed that he possessed rights and interest within the trial area, stating that there was insufficient evidence in support of the claim. Mr Leo also expressed the opinion that there was insufficient evidence to support the claim. Dr Corrigan considered that he was unable to express an opinion due to the lack of evidence. Mr Wood explained that he did not have sufficient time to address Toby Williams.

(h) in relation to Aneida / Nada Bilbear, Mr Leo expressed the opinion that she possessed rights and interests in the Kalgoorlie area, based principally on Tindale and Birdsell's data plus the Cooper family oral history. Dr Powell and Mr Wood disagreed, referring to evidence associating her with Aboriginal people to the north-east of the trial area and inconsistencies in the Cooper family's oral history. Ms Taylor considered that she was unable to express an opinion due to a lack of evidence, but considered that Nada was associated with Gindalbie Station to the east of the trial area. Dr Corrigan considered that the question was outside his terms of reference.

[1057]

(a) In relation to Bob Marakadji, Mr Leo expressed the opinion that he possessed rights and interests in the Kalgoorlie and Kanowna areas, based principally on Tindale and Birdsell data. Dr Powell and Mr Wood disagreed, referring to Tindale data that records Bob Marakadji's father as being from Kurnalpie (east of the trial area) and his mother, while recorded as being from Kanowna (within the trial area), was described as Wongai. Ms Taylor considered that she was unable to express an opinion due to a lack of evidence, but noted that Tindale's material indicated that he was born and had a parent from inside the trial area. Dr Corrigan considered that the question was outside his terms of reference, but proffered "the proposition appears likely to be correct". Dr Corrigan did not explain the basis for the latter suggestion or why he considered that he was in a position to express an opinion when the issue was outside his terms of reference and had not been the subject of any research undertaken by him.

(b) In relation to the siblings Jimmy, Minnie and Kitty Bluegum, Mr Leo expressed the opinion that they possessed rights and interests in the trial area, based principally on Tindale recording Kitty Bluegum stating an affiliation to Kanowna (within the trial area). Each of Dr Powell, Ms Taylor and Mr Wood expressed the opinion that the available evidence supports the conclusions that none of the siblings possess rights and interests in the trial area. The evidence includes that their mother was recorded as being of the Edjudina district (to the east of the trial area), Kitty Bluegum's father was known as Johnny of Edjudina and Kitty Bluegum was born in Edjudina. Dr Corrigan considered that the question was outside his terms of reference.

(c) In relation to Mary, who is an ancestor of Jean Walker, Mr Leo expressed the opinion that she possessed rights and interests in the trial area, based principally on Tindale's data. Each of Dr Powell, Ms Taylor and Mr Wood expressed the opposite opinion, noting that Mary's daughter Jean was born in Menzies in about 1900 and, although she lived in Kalgoorlie, she has not been recognised as Kapurn (but as Wongai). Dr Corrigan considered that the question was outside his terms of reference.

(d) In relation to Daisy Decruse, each of Dr Powell and Ms Taylor agreed that she possessed rights and interests in the trial area, noting that she was born at Mount Jackson (within the trial area) and resided in Coolgardie. Mr Leo agreed that Daisy Decruse possessed rights and interests in the Kalgoorlie area. Dr Corrigan considered that the question was outside his terms of reference. Mr Wood explained that he did not have sufficient time to address Daisy Decruse.

(e) In relation to Morry Newman, each of Dr Powell and Ms Taylor concluded that he did not possess rights and interests in the trial area, being Ngadju. Mr Leo expressed the same opinion. Dr Corrigan considered that the question was outside his terms of reference. Mr Wood explained that he did not have sufficient time to address Morry Newman.

(f) In relation to Bilgidee, each of Dr Powell and Ms Taylor agreed that he possessed rights and interests in the trial area based on Daisy Bates's data. Mr Leo agreed that Bilgidee possessed rights and interests in the Coolgardie area based on Daisy Bates's data. Dr Corrigan considered that the question was outside his terms of reference. Mr Wood explained that he did not have sufficient time to address Bilgidee.

[1069]

In considering whether native title rights and interests in the trial area exist for the purpose of s 223(1) of the NTA, it is convenient to begin with the evidence concerning the identification of the Aboriginal society in occupation of the trial area at the time of effective sovereignty and their laws and customs. I refer to those people as the "Aboriginal society", using the term "society" in the sense explained by the High Court in Yorta Yorta.
As has been observed in a number of cases, the use of the word "society" in native title jurisprudence can present difficulties. It is not a statutory term. It is a word that was adopted by the High Court in Yorta Yorta to describe a body of persons united in and by its acknowledgment and observance of a body of laws and customs having a normative content (Yorta Yorta at [38] and [49]). As explained by Jagot J in Wyman (No 2) (at [455]), normative content means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society. Further, and as emphasised by the Full Court in Alyawarr, the word "society" is a conceptual tool for use in the application of the requirements of s 223 of the NTA (at [78]).
This section of the reasons is largely drawn from the anthropological reports of Mr Wood, Ms Taylor and Dr Powell, whose opinions I accept. It refers to the historical records that exist in relation to the Aboriginal people in occupation of the trial area after European settlement, including the ethnographic information recorded by the settler David McDonald, by Daisy Bates and by Norman Tindale and linguists who studied the region. It also refers to other information obtained from Aboriginal informants during the 20th century and early 21st century.
It is important to emphasise that no single piece of evidence is determinative of the identity, the language and the laws and customs of the Aboriginal society in occupation of the trial area at the time of effective sovereignty. Many pieces of evidence are fragmentary. What must be assessed is the probative force of the entirety of the available evidence. As discussed earlier, I consider that each of Mr Wood, Ms Taylor and Dr Powell, in their anthropological reports, researched and assessed the entirety of the available evidence and expressed persuasive opinions based on that research and assessment. In contrast, Dr Corrigan's research and assessment was shallow and Mr Leo's work was shallow and selective.

[1072]

Noongar is a cultural bloc of 14 different sub-groups (or dialects) with a mutually intelligible language stretching from Esperance in the south to Geraldton in the north and from the west coast of Western Australia to, relevantly, the western and south-western boundary of the trial area. Noongar were non-circumcising people. The Noongar are named after their word for 'man/people'.
Whilst Tindale called these groups separate tribes, they are known today as sub-groups of a larger Noongar society. Their native title rights and interests were recognised through the South West Native Title Settlement (colloquially known as the "single Noongar settlement"). By that settlement, the constituent groups of the Noongar nation (including, relevantly, the Njaki Njaki and the Ballardong people) resolved their respective native title claims in the south-west of Western Australia in exchange for a package of benefits. The settlement is constituted by six ILUAs, and was given legislative recognition in the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA). The note to sch 1 of that Act identifies the groups which form the Noongar nation, which include the Ballardong people and the Nyakinyaki people (which is also spelt Njaki Njaki).
It is historically relevant to note that Tindale identified the Njaki Njaki at the following places: east of Lake Grace, Mount Stirling, Bruce Rock, Kellerberrin, and Merredin, south to Lake King and Mount Madden, east to Lake Hope and Mount Holland. His description places the Njaki Njaki directly south-west of the trial area. According to Tindale they did not practice circumcision, and were called 'Mudia' (a derogatory term) by the Karlamaya because of this. Tindale identified the Ballardong at the following places: York district, east to Tammin, Kununoppin, Waddouring Hill, and Bencubbin, at Toodyay, Goomalling, Wongan Hills, and northward to Kalannie. His description places them to the west of the trial area. They did not circumcise. Tindale recorded that their language was called "Tjapanmaya" but notes that this is an exonym of the form used by the south-east group of languages including Karlamaya; that is, it is not a name with which the Ballardong people self-identified.

[1076]

As noted earlier, the anthropological witnesses agreed with the proposition that an appropriate estimate of the date of effective sovereignty in the trial area is generally 1890-1894. Nevertheless, it is helpful to record additional evidence given about the settlement of the trial area by Europeans, by way of background to the analysis of the evidence concerning the Aboriginal society in occupation of the trial area at that time. What follows is largely drawn from the report of Ms Taylor.
Parties of explorers had been accessing the trial area and wider Goldfields region since 1836 which, in many cases, involved the first known contact between Aboriginal groups and Europeans. In 1836, J S Roe observed what he thought may be a ceremony involving a number of Aboriginal people at Mount Moore (likely associated with Lake Moore, and possibly now called Mount Gibson) in the north-west of the trial area. Throughout the mid-1800s there were a number of exploration parties through the trial area including Charles and Andrew Dempster around Golden Valley in 1861; C C Hunt in Southern Cross and south-east of Coolgardie in 1864 and 1866; Ernest Giles from Goongarrie to Mount Jackson in 1875; and Carnegie and Luck in Koolyanobbing and Southern Cross in 1893. As was usual in most parts of Australia, the European explorers relied on local indigenous guides for finding food and water and ensuring safe passage through the region. Whilst the exploration parties represented a disturbance to traditional life, the disturbance was temporary and short-lived.
The Goldrush began with the discovery of gold in Golden Valley, near Lake Deborah, south-east of present-day Bullfinch, in 1887. Southern Cross was the site of the first town, with gold being discovered there in 1888. The town of Southern Cross was gazetted in 1890 and, within five years, town services such as a bank and school were established. Frank Roundhead (a forebear of members of the Marlinyu Ghoorlie claim group) told David McDonald about "his amazement when, as a small boy with the tribe, he saw the first white men pushing through the salmon gums and wattles west of Southern Cross" around the age of 11 or 12 in 1898.
The Goldrush extended east and by 1892 gold was discovered in Coolgardie which brought an influx of Europeans to the area, with the population totalling approximately 300 when the town was gazetted in 1893. However, the population of Coolgardie grew exponentially to 6,000 in 1895 and 15,000 in 1898, making Coolgardie the third largest town in Western Australian with 23 hotels catering for the flood of prospectors to the area.
Following the discovery of alluvial gold at the base of Mount Charlotte (near present day Kalgoorlie) in 1893, there was a rapid population and capital infrastructure increase in and around Kalgoorlie, with the town being gazetted in 1894. At the time of gazettal, the European population was between 1,400 and 1,600, which boomed to 12,000 by 1903. The Goldrush continued to spread across the trial area with Boorabbin gazetted as a town in 1898, as well as beyond the trial area with Menzies established in 1894, Leonora in 1895, Laverton in 1896 and Mount Margaret in 1897.
Ms Taylor observed that the adverse impacts experienced by Aboriginal people during and after the Goldrush were extensive and included famine, frontier violence, disease, dispossession of waterholes and hunting territory and children taken away from families. In his 1902 Report for the Goldfields, Travelling Inspector G S Olivey wrote:

[1083]

In a telegram dated 17 November 1896, Kalgoorlie police said that the incident described above ended a conflict between the "Pindinnie natives and the Kanowna tribe". Ms Taylor observed that, in all the reports above, it was the Coolgardie, Southern Cross and Kalgoorlie Aboriginal groups allied against the Pindinnie group at Kanowna. This is significant because Southern Cross, Coolgardie and Kalgoorlie are all within the trial area, whilst the Pindinnie were known to have come from around Pinjin (170 kilometres to the north-east of the trial area). This appears to show a unified Aboriginal group within the trial area fighting against the Pindinnie.
On 16 December 1897, the Kalgoorlie Miner published an article concerning Aboriginal man Fred McGill who spoke English well and had come from the Esperance area. He was living with the local tribe at Coolgardie and he provided some information about them including that "this is the Fraser Range, Coolgardie, Kalgoorlie and Norseman tribe". Ms Taylor observed that this is significant because other ethno-historical records also showed a closeness between the Coolgardie, Kalgoorlie, Norseman and Fraser Range people.
Relevant information is also found in the diary of C A Bailey, the Protector of Aborigines, stationed at Coolgardie. On 16 September 1896, he reported visiting "native camps" between Kurnalpi (70 kilometres north-east of Kalgoorlie) and Kanowna (on the eastern boundary of the trial area) where he met "natives" who said they planned to go to Kalgoorlie where they "anticipated meeting members of the different tribes in the Coolgardie district". In Kurnalpi, he found 18 adults and seven children "on the point of leaving here for Kalgoorlie" to join the forementioned tribes. On 29 October 1896, he recorded that, owing to a perceived scarcity of water and game in the Mount Malcolm (200 kilometres north of Kalgoorlie) and Mount Margaret (225 kilometres north-northeast of Kalgoorlie) districts, he believed that "eventually all Natives in outlying districts will make Coolgardie and Kalgoorlie their head quarters". In February 1897, he wrote that, while his previous report had stated that "natives" from outlying fields wanted to live with the Coolgardie tribes, this arrangement did not last because:

[1092]

As noted earlier, Mr Wood expressed the opinion that the Aboriginal people in occupation of the trial area at sovereignty acquired rights and interests in land through the male line by reference to the father and father's father, each of which held an estate intramural to the trial area and named by reference to a focal totemic site. Mr Wood explained that this minimal structure is especially evident in the patrilineal descent of the focal site totem, and the frequent attachment of the suffix -wuk to form an appellation for both the group and its estate. Mr Wood notes that this feature and the suffix were shared with Noongar people to the west and with some Ngadju people, but not with Western Desert groups. Mr Wood explained that the genealogies prepared by Bates demonstrate this distinguishing feature across the trial area, from the west side of the trial area to the eastern side, which are referred to below.
Mr Wood expressed the further opinion that the patriclan estates were the minimal tenure unit, but the data shows that it was not only at this level that rights and interests were held; rather, clan estates were intramural to a more embracing, multi-clan country group, which was knit together by cultural coherence, including shared moiety, ritual, mythology and language. Patrilineal descent was the recruitment principle not only at the intramural estate level, but also necessarily at the wider Kapurn identity level to which the multiple descent groups belonged.
By way of further introductory background, Mr Wood explained that there were at sovereignty, and to an extent remain today, several forms of totemism within the trial area. One kind are the totems of the generation moieties which are discussed later in these reasons; these are not site-specific totems, but rather are social (generational) totems operating across the entire Kapurn community. The other two forms are both site-specific totems. First, individuals had a personal site totem, acquired through some biographical event in their life, primarily their birthplace. Second, individuals inherited from their father a totem specific to their clan and by which the clan and its estate intramural to the collective Kapurn country was identified. Mr Wood reproduces Bates's description of the site-specific totems which she initially documented in the Noongar area, but found continuous in the Kapurn area:

[1094]

Mr Wood notes that Bates found that throughout the south-west region of Australia the elemental tenure group was what she termed a "local totemic group" whose focal totems were, in her words, at once "family totems" and "district" or "local" totems. These small local groups took their names from these totems, to which the suffix -wuk was often added. Bates wrote that the local totems are inherited from the father. She found the same system in the trial area.
Mr Wood reports that, in Bates's records, site-bound totems are the actors in mythological narratives, each of which link a string of sites, and which terminate in the actor's transformation into topography at a final site where they remain permanently enshrined. Bates's field data includes many examples of these ancestors, for which she recorded bittangal as the main word for totem used in south-east languages, including Karlamaya. She found it to be closely equivalent in meaning to the word borung(ur) in Noongar languages to the west, and she used borungur and bittangal interchangeably. Mr Wood observed that these narratives, often referred to as 'Dreaming', can continue many hundreds of kilometres through neighbouring countries.
Mr Wood observed that the descent composition of the local totemic tenure group is readily apparent on some of Bates's genealogies from the trial area. Mr Wood reproduced a large sample of the genealogical charts to demonstrate, first, the pattern of patrilineal descent of the totem (which is easily tracked because Bates records men's names in upper case) and, second, its application across the trial area from the western parts east and north of Kellerberrin, the Mount Jackson area close to the centre, and Coolgardie in the east.
Mr Wood also observed that totemic information recorded by Tindale in the trial area is consistent with the foregoing pattern. For example, Tindale's genealogy sheet 114 (Southern Cross, 6 May 1939) recorded that (Karlamaya ancestor) Frank Pilingara identified himself as "Kalamai tribe, Southern Cross, wina tjukurr (bob tailed goanna), my tjukurr place is at Crooked Iron NW of here". Mr Wood explained that the word tjukurr means totem or dreaming, and it is evident that the bobtail is a site-bound totem from the words "tjukurr place".
Mr Wood referred to other evidence that supports the conclusion that rights and interests in land in the trial area were transmitted by patrilineal descent.
First, in the trial area and adjacent areas east and south not only totemic clan but also language identity was transmitted by patriliny. Mr Wood observed that this is the usual case in patriclan organisation. Evidence for this in the trial area is primarily found in Tindale's field data, first from his 1966 interview in Kalgoorlie of Don Roundhead, who he noted was then "about 65 years of age born at Southern Cross and of the Kala:mai tribe" and "in language terms he spoke Kabul" whose country:

[1099]

The Dundas area is a short distance south of Norseman, which is itself south of the eastern end of the trial area.
Mr Wood observed that, in contrast to the Karlamaya Kapurn, the Noongar population was divided into moieties whose names carried the suffix -mat, but instead of generation moieties required to marry their own members, they were descent moieties and were exogamous - that is, a person could marry only someone of the opposite moiety - and they were matrilineal in that the children belonged to the moiety of the mother.
Mr Wood noted that Bates rendered the Karlamaya Kapurn generation moiety names as "Bi-rung-umat / Beerungoomat" and "Ju-amat / Jooamat" which in the modern orthography is written as Piirangumat and Tjuwamat. The names consist of the common nouns for their respective totems - piirangu (sacred kingfisher) and tjuwa (rainbow bee-eater) - plus the moiety suffix -mat. Occasionally the suffix -wuk, which is more commonly found attached to the totems of patriclans, occurs in her data instead of -mat. Ms Taylor also noted that 'Beerungoomat' is also known through dialectical differences as 'Deerungoomat' (or 'Beerungoo', without the suffix -mat).
Mr Wood expressed the opinion that these generation moieties are a distinctive feature of Karlamaya Kapurn people. Mr Wood is not aware of any other case in Australia of stand-alone generation moieties with both socio-centric proper names and a totem.
As Mr Wood explained, the generation moieties appear in Bates's genealogies taken within the trial area. Further, it is apparent from the genealogies that the names of the two birds, piirangu and tjuwa, were the totems of the moieties because Bates's informants referred to them by the generic word for totem bittangal. Bates recorded that the totems for the moieties - piirangu and tjuwa - were never eaten by anyone, and killing one was punishable by death.
Mr Wood noted that the deployment of contrastive bird species as moiety totems is recurrent in Australia, although discontinuously distributed. Examples include crow and white cockatoo (coastal Western Australia), black cockatoo and white cockatoo (north-east Queensland), and eaglehawk and crow (central Victoria). In some cases, the contrast deployed is colour, in other cases it is aspects of the birds' behaviour. Mr Wood observed that the rainbow bee-eater and sacred kingfisher bear a superficial similarity in being both small and sharing an opal colour spectrum. However, there is a striking behavioural difference: the rainbow bee-eater nests in holes in the ground whereas in Western Australia the sacred kingfisher nests in holes in trees. The ethno-historical literature does not record whether this is the reason for the choice of the birds as the totems.
Mr Wood observed that the traditional laws and customs of Western Desert groups are not structured around patriclans or generation moieties, and that the primary social schema in the Western Desert region adjacent to the trial area was the four-section system. Generation moieties are implicit but not named in the four-section system, which is formed by the intersection of matrilineal descent moieties with, at least implicit, generation moieties.
Mr Wood noted that, by the time of her fieldwork, Bates found that an overlap of the Karlamaya Kapurn totemic generation moieties and the Western Desert section terms had developed in what she referred to as the "Eastern goldfields", by which she included a small part of the trial area from Kalgoorlie north-west through Broad Arrow, Widgiemooltha, and Canegrass but more particularly eastwards to Edjudina and perhaps also much further north. Bates refers to this set of section terms as the "Eastern goldfields divisions" but lists the areas where they are found as follows:

[1101]

Mr Wood observed that the areas where the Western Desert section terms were abutting the Karlamaya Kapurn generation moiety terms includes places along the north-east of the Kapurn country (Menzies, Goongarrie, Broad Arrow and Ngangaree (Canegrass)), but Bates was uncertain of Kalgoorlie. Mr Wood expressed the opinion that Bates's description should not be taken to mean that Kapurn people were adopting the Western Desert sections along this line for their own use; rather, Bates's information should be understood as showing that Kapurn people were familiar with the section system and could give a section name for themselves as a translation of their generation moiety where they were in contact with Western Desert people. Mr Wood notes that even some of Bates's major Kapurn informants, like Kaddee of the Southern Cross / Coolgardie / Norseman area, could give a section name as well as her Kapurn generation moiety. On another list which is concerned only with the distribution of the generation moieties, Bates includes Coolgardie and Widgiemooltha but adds that, at these places, the generation moieties were "mixed with E. Goldfields classes". Mr Wood expressed the opinion that the data shows that Kapurn used their own generation moieties for themselves, but were familiar with the section systems and could use them in interaction with Western Desert people.
Mr Wood noted that the Bates materials show that the people of the Goldfields region were fluent in the social category terms of their neighbours, and Bates reported that "the tribes on the borders of each other were continually changing into each other's classes". However, Bates noticed a difference between how this worked in the north, where two pairs of sections could be assigned neatly to one of the generation moieties, resulting in an unproblematic "amalgamation" of the two systems, whereas in the west the Noongar matrimoieties and Karlamaya generation moieties were less readily meshed and male affines were simply "adopted" into one of the generation moieties:

[1103]

Mr Wood observed that there were several variant sets of names for the Western Desert four sections: (i) Boorong, Kaimera, Boorgooloo and Tharrooroo; (ii) Boorong, Kaimera, Eebarrga, and Tharrooroo; and (iii) Banaka, Eebarrga, Boorgooloo and Tharrooroo. When people bearing different versions of the section system met, or when any of them met with people whose native system was the generation moieties Beerungoomat and Jooamat, they were all familiar enough with each other's systems to ascertain their equivalent category in the other system. Bates's term is that the generation moieties were "translated" into the Western Desert four-section system and vice versa. For example, the generation moiety Joowuk was read as the Western Desert sections Eebarrga and Tharrooroo, and the generation moiety Beerungoomat translated into the sections Boorong and Kaimera. Mr Wood illustrated his observations by reference to a number of Bates's genealogies which included both the Karlamaya Kapurn generation moiety names and Western Desert section names. Mr Wood stressed that, in his opinion, these points of engagement on social categories do not make the Karlamaya Kapurn and neighbouring law and custom systems the same as there were other significant differences, especially in relation to the Western Desert.
Mr Wood stated that Tindale, around 35 years after Bates, reported the distribution of social organisation systems in broadly similar terms as Bates. He found that south of "Desert type people" who were "four class tribes" (that is, groups with the four-section system) was a wide layer of peoples he labelled as "Southern type" with "no class" (that is, no sections) but with "alternate generations".
The broad areas in which the different systems applied are shown on a field sketch map produced by Tindale, but on which Tindale was indecisive about where exactly to place the boundary between the groups with "alternate generation" moieties and the "4 class tribes" (sketching a dotted line north of Kalgoorlie and another line just south of Kalgoorlie).
While Tindale's observations are consistent with those of Bates, Tindale's maps must be treated with considerable caution for a number of reasons. First, Tindale spent only a few days collecting information concerning Karlamaya Kapurn people in and around the trial area. Tindale spent a single day in Southern Cross and did not collect information in the eastern part of the trial area (Coolgardie or Kalgoorlie). Second, and as discussed later in these reasons, Tindale's maps relating to the trial area did not reflect all of the data he collected concerning Karlamaya Kapurn people and their country.
Mr Wood further observed that the four-section system never became deeply rooted among the Kapurn. By the time Tindale was in the area in 1939, he repeatedly noted that the Karlamaya Kapurn were not using the four-section system names and regarded them as foreign. For example, Tindale genealogy 116 records "class is acquired from Laverton people there is no 4 class among Kala:mai people" and Tindale genealogy 117 records "4 class terminology unknown in this tribe; only learnt by contact with Laverton people".

[1111]

The evidence shows that between the late 1930s and the late 1940s, the Karlamaya Kapurn people ceased the initiation ritual of circumcision. In their reports, Mr Wood and Dr Powell record statements made to them by living and deceased Kapurn people as to the reasons why the ritual of circumcision for Kapurn youths was stopped.
Dr Powell gave evidence that, during her 1997-2000 fieldwork in the eastern Goldfields, initiation rituals were referred to as "Men's Business" and "Going through the Law". Dr Powell was told by Kapurn informants that, while in former times the claimants' forebears had participated in such man-making rituals, Men's Business initiation rituals associated with the Law had been discontinued in the area that is now the trial area; that the custodianship of the "Business Sites" and mythological sites in the trial area was under challenge; and that some of the younger members of the Kapurn community had commenced, or were intending to commence participation in the Law. Dr Powell expressed the opinion, based on the information given to her by a number of informants that several factors contributed to the discontinuance of initiation in the trial area. These include difficulties in undertaking the several stages of initiation while working in the mainstream economy; protection of family members from the punitive and sometimes fatal nature of payback associated with breaking traditional laws; reluctance of youth to submit to the pain and health risks associated with circumcision and subincision; and the influence of the teachings of Christian missionaries associated with the several missions established in or near the trial area.
Dr Powell stated that it is not certain precisely when the last "Men's Business meeting" occurred in the trial area, but having regard to the biographical data of the youngest of the initiated forebears of the Marlinyu Ghoorlie claimants (Phil Donaldson and Willie Sambo), Dr Powell concluded that it may have been sometime in the 1930s or early 1940s. Historically, people from the east and north used the "Business sites", and joined with Karlamaya Kapurn people for ceremonies at these sites. Dick Donaldson's son Phil Donaldson was the last initiated custodian for the Coolgardie sites, having taken that responsibility after the death of his father, Dick Donaldson, who in turn took over the responsibility from King Billy, his wife's father.
Mr Wood notes that, in his report for the Ngadjumaya native title proceeding, Dr Kingsley Palmer reported that he was informed that the Ngadju ceased the practice because it was seen as "too rough". Mr Wood was given similar information by Ricky Dimer, a witness in this proceeding. Ricky Dimer told Mr Wood that the trigger for the decision was the death of a boy from surgical mishap or infection at the hands of Western Desert initiators, which was followed by payback killings carried out by a few Kapurn individuals.
The decision to cease the practice of circumcision by the Kapurn is also the subject of lay witness evidence in this proceeding. A number of witnesses (Brian Champion Snr, Ricky Dimer, Maxine Dimer, Trevor Donaldson) said that the decision to cease male initiation ceremonies was made by senior law men Dick Donaldson and Ted Champion. The reasons given for the decision vary to some extent, but included the physical risks of circumcision, the demands of employment under the new European social order, as well as the attitudes and demands of the Christian Church.
Mr Wood expressed the opinion that, piecing together the Karlamaya and Ngadju accounts of the reasons for stopping the circumcision ritual, the decision was a process or series of decisions and events over a period of a decade and a half that rippled around the southern and south-western edges of the Western Desert. The effect of the decision was that the circumcision line was rolled back to the edge of the Western Desert.

[1120]

Mr Wood reported that the use of the name Kapurn as an ethnonym for the people of the trial area is well-attested from as early as the turn of the century. Mr Wood commenced his discussion of the historical records by an explanation of the phonetic form of the name Kapurn and how variant spellings have arisen. Mr Wood expressed the opinion that 'Kapurrn', with the rhotic tap or trill /rr/ preceding the final /n/, is the probable original form, which he adduces from several pieces of evidence. First, Tindale genealogy 116 (taken at Southern Cross on 6 May 1939) recorded it as "Kabu(d)n," showing that Tindale detected both the /n/ and the preceding rhotic tap /rr/ but could not distinguish it from /d/. Mr Wood explained that this is unsurprising since English /d/ is quite close phonetically to the Aboriginal /rr/ when it occurs as just a light tap before a nasal consonant, as it sometimes does in many Australian languages. Second, in 1966, Tindale recorded the word as "Kabul", as did David McDonald, who was in the area in 1898, and wrote the name as "Kabul" (in his 1959 unpublished memoir). Mr Wood infers that, as the sequence /rr+n/ is difficult for English speakers to hear, and since in English we sometimes lightly tap /l/ in some contexts, this has led to both McDonald and Tindale mistaking /rr+n/ for /l/. Mr Wood also observed that the linguist von Brandenstein noted a similar issue in Ngadjumaya in which /rd/ was mistaken for /rl/ by earlier recordists. Third, Mr Wood reports that younger Kapurn people today, who grew up speaking vernacular Aboriginal English as their first language, pronounce the name as "Gabrun". Mr Wood believes that, although they heard the tapped /rr/ in their forebears' speech, they found that hard to say themselves, and so it has undergone slippage to a rhotic + vowel sequence under the influence of English syllable structure. Mr Wood concluded by expressing the opinion that there were not variations in the form of the word in precolonial Aboriginal usage - such as Kapurrn, Kapun, and Kapul - but variant interpretations by European observers and later English-speaking Aboriginal people of what they were hearing.
Mr Wood observed that the primary records pre-dating native title are those of Bates (1907-1908), McDonald (1959), Tindale (1939, 1966), Hale (1960), von Brandenstein (1980), and Douglas (1965). Mr Wood summarised their findings below in approximate chronological order of their fieldwork dates (with modern adopted spellings highlighted in italicised type, to differentiate them from variant spellings identified in historical records).

[1136]

As noted above, a number of vocabularies were collected in the trial area. Bates collected several vocabularies from individuals she encountered at Southern Cross, Coolgardie, Widgiemooltha, Norseman and Mulline, including from Kajjaman (Nellie Champion) and Kaddee (and Dharroon) in Coolgardie. One of Bates's vocabularies consisted of more than 350 items including more than 100 sentences and phrases. Tindale also took a list of 82 words in 1939 and Hale took a list of 90 words in 1960.
Ms Taylor reported that Nash carried out linguistic work from 1998 in the context of consultancies for the Goldfields Land Council. Nash reviewed the earliest linguistic recordings of the trial area from 1864 through to the 1960s and stated that the vocabularies and their relative locations "show a continuity from the earliest records". Nash was satisfied that "Karlamayi, as recorded by Hale in 1960, is virtually the same vocabulary recorded by us as 'Gabrun'". Nash explained that this fits closely with Tindale's records from Southern Cross, and with Bates's records from Coolgardie and Southern Cross.
Mr Wood reported that, since 2011, the linguist Sue Hanson had worked with the last speaker of Karlamaya, Brian Champion (Snr), to retain a large vocabulary. She expressed the opinion that Brian Champion Snr's language corresponds closely with the earlier data.
Mr Wood drew the conclusion, which I accept, that the Karlamaya language and Kapurn group identity is well attested from the earliest European entry into the Goldfields region.
Similarly, Ms Taylor expressed the opinion, which I accept, that the linguistic records show a lengthy history of the language associated with Karlamaya, Karlaku and Kapurn being recorded across the trial area from Bates (1907) to more contemporary times. Wordlists from Teddy Champion and Dick Donaldson in the Karlamaya and Karlaku languages also place language speakers in the trial area. Ms Taylor draws the conclusion that Karlamaya and Karlaku were dialects of one another, and part of a distinct language that was neither a Western Desert nor Noongar language, and that Karlamaya (and Karlaku) was the language of the Kapurn people.

[1139]

As noted earlier, David McDonald spent periods in various Goldrush towns from Coolgardie to Menzies between 1898 and at least the 1950s, and was for a period based in Murrin Murrin in the Western Desert country north-east of Kalgoorlie. He formed a friendship with an Aboriginal man named Basil who "had been schooled and spoke the language quite well". In 1939, McDonald married a Western Desert woman, Lily Sullivan. Mr Wood notes that McDonald acquired an understanding of how group countries were delineated by a constellation of water sources and the extent of each major group's country. He recorded detailed information on the Aboriginal economy and resource use and methodologies, such as storage of grass seed flour in hollow wood, unusual details about tracking, and attended rituals including mortuary rites and the preparations for revenge expeditions. He also acquired some Western Desert language vocabulary. Mr Wood expressed the opinion that McDonald should be treated as a reliable witness, including as to the extent of the country he identifies as Kapurn, especially given that his major informants were Western Desert people and not Kapurn.
Similarly, Ms Taylor expressed the opinion that McDonald's knowledge of tribal groups in the trial area is detailed and reliable, and it is very important as one of the earliest firsthand accounts of the tribal distribution in the very early post-European contact era (mid to late 1890s). Ms Taylor observed that McDonald's autobiography provides a significant amount of information on Wongai and Kapurn distribution, customs, beliefs and history, collected independently of any research agenda and McDonald appears to have paid close attention to Aboriginal ways of life in the district, even learning a good amount of Wongai language. Ms Taylor expressed the view that McDonald's information should be given significant ethnographic weight.
Ms Taylor further observed that McDonald appears to have paid close attention to the customs of the local Aboriginal populations providing extensive information about hunting and gathering practices, use and production of tools, spirituality and sacred sites, corroborees, camping rituals, burial practices, tribal retribution, language, and even birthing rituals and circumcision practices. He noted the "Kalgoola" fruit (wild pear) of Kalgoorlie that was eaten by the local Aboriginal people and "from which Kalgoorlie derives its name". He noted also that Coolgardie derives its name from a water hole, with a similar name "Kurrgordie", which is associated with the mulga tree growing alongside it.
In the following passages from McDonald's autobiography, he identifies the area immediately north of the trial area from Menzies and out to Edjudina and Pinjin with the Western Desert Wongai groups, and he understood that the Wongai were a culturally uniform people but comprised of different geographical divisions ("auxiliaries"). He then identifies some key areas within the eastern parts of the trial area as Kapurn, namely "the Coolgardie area", Mount Burges whose Kapurn name he heard correctly as "Meloorie" (Muluuri), and a hill he knew as "Yuille" a little east of Broad Arrow:

[1143]

Daisy Bates first encountered the Kapurn people during her 1907-1908 field trip to Esperance and north to the Goldfields. Bates gave them the name 'Karratjibbin' after the name of their favourite camping area near Southern Cross. Elsewhere in her notes, Bates called the group the "Southern Cross natives", and labelled them the "Karratjibbin (Southern Cross) Nation" within her classification of six nations of West Australian indigenous people. Bates noted: "Only a few weeks could be dedicated to this most interesting people, but sufficient information was obtained to justify their separation from the Southwestern nation [whom she referred to as the Bibbulman Nation] and also from the central areas [whom she referred to as the Central Areas Nation]." Mr Wood observed that a few weeks is considerably more than the few days of most other researchers, including Tindale. Mr Wood notes that, as Bates did not keep a diary, it is not known how many locations she worked at with Kapurn informants beyond Southern Cross, Norseman and Coolgardie. Her materials include references to Kapurn people at Kalgoorlie, Goongarrie, Kanowna and Widgiemooltha, within the eastern portions of the trial area, and also at Norseman (which is south of the trial area in Ngadju country). Ms Taylor noted that, consistently with the information recorded by David McDonald, Bates recorded that "Mollooree" (Mount Burges) was a particularly sacred site and associated with both Kajjaman's (Nellie Champion's) and Kaddee and Warada's families, who were also the owners of Coolgardie.
Mr Wood observed that the districts in which Bates recorded the Karlamaya generation moieties Pirangumat and Juwamat on genealogies are markers to some of the areas constituent of the Kapurn country. They include the eastern area around Kalgoorlie, Coolgardie, Canegrass, and Widgiemooltha (and also include around Fraser Range and Norseman in Ngadju country). Mr Wood also considered that the patriclan descent groups, also evident on the Bates genealogies, are a further marker of Kapurn country. A number of Bates's genealogies show that the distribution of the patriclan system included the eastern parts of the trial area, and a number of those genealogies feature both site totems descending patrilineally (definitive of patriclans) and the totemic generation moieties.
Mr Wood noted that Bates did not establish in situ how far west the Kapurn laws and customs extended to meet those of the Noongar, but only that this boundary was east of Kellerberrin and coincided more or less with the western circumcision line. In a passage quoted earlier, Bates recorded:

[1151]

Mr Wood notes that the Karlamaya language is not closely related to Western Desert language and Mr Wood infers that Tindale formed his impression due to the lexical overlap of the languages.
Tindale's genealogies contained a limited amount of information about individuals, sometimes including a "tribal identity" (using Tindale's language) and also a locational identifier for the individual. The locational identifier was typically expressed as the individual being "of" a named place. Mr Wood observed that the meaning of the locational identifier was not made clear by Tindale, and it might have referred to a person's birth place, their intramural estate area (their father's or mother's country), or some other biographical association. Nevertheless, the locational identifier provides some geographical information with respect to individuals who were identified as Karlamaya or Kapurn.
On Tindale's genealogy sheet 114 taken down at Southern Cross on 6 May 1939, Pilingara, husband of Nellie, is recorded as "of Coolgardie, really from Norseman". On Tindale's genealogy sheet 117 (also taken down at Southern Cross on 6 May 1939), Pilingara is identified by his English name Paddy and his tribal identity is recorded as Karlamaya. Mr Wood observed that the nature of his connection to either Coolgardie or Norseman is not clarified, but he clearly had connections to both places.
On Tindale's genealogy sheet 115 taken down at Southern Cross on 6 May 1939, Billy Wilkoin is recorded as a Karlamaya man "of Woolgargie, WA. W of Coolgardie" and in the bottom right corner of the sheet it is recorded that his "tjukurr" (site totem) "is at Bullabulling". Mr Wood noted that Woolgargie does not feature on maps today, but Brian Champion Snr informed Mr Wood that the location is Wulkantji, a place close to Bullabulling, just west of Coolgardie.
On his genealogy sheet 116 taken down at Southern Cross on 6 May 1939, Tindale records the tribe of Nellie Champion as both "Kala:mai Tr" and "Ka:bu(d)n Tr," and includes a short sample of words in the "Kabu(d)n" language, on which the first word is "ka:bun = man" and the last is "ka:la = fire". He also notes that Jack Champion, the son of Nellie and Jim Champion from Shark Bay, would have the section name "Karimara" were he to follow his Shark Bay father, but that he is "following mother and Southern Cross" and "there is no 4 class among Kala:mai people".
On his genealogy sheet 117 taken down at Southern Cross on 6 May 1939, Johnny Paddy is said to be "of Bullfinch", which is north-west of Southern Cross, his brother Charlie "of Mukinbudin", which is west of Southern Cross, their father "of Burracoppin", which is on the south-west boundary of the trial area, and their mother "of Boorabbin", which is east of Southern Cross. The parents of Eva Roundhead (the mother of Don Roundhead) were, respectively, "of Wilgoyn", which is west-northwest of Southern Cross, and "of Mt Jackson", which is north of Southern Cross.
Genealogy sheet 117 also records in respect of the Karlamaya that:

[1164]

Evidence was given about a boundary agreement reached at a meeting between a Karlamaya Kapurn elder, Phil Donaldson, and a Western Desert elder, Don Sinclair. The evidence indicates that the agreement was reached in 1989 and was in the form of a map marking the eastern bounds of the Karlamaya Kapurn country, which was signed by Phil Donaldson and a Mr Tree, who was a Justice of the Peace at Coolgardie. The map was not adduced in evidence.
Phil Donaldson was born in 1921. His father was Dick Donaldson, who was married to Alice Wilson / Minjin, King Billy's daughter.
Relying upon government records, Dr Powell reported that Don Sinclair was born in about 1929 at Karonie or on 1 July 1929 at Cundeelee to parents named Dingool (also known as Roy St Clair / Sinclair) and Ruby (also known as Yoobaabaa). He married May Gordon (also known as Lewa) at Cundeelee Mission on 30 April 1955. His daughter Janet married Phil Donaldon's nephew Neil Donaldson. He died in 1993. Genealogy sheet 7 recorded by Joseph Birdsell at Cundeelee includes a genealogy for the Sinclair family. On this genealogy, Don Sinclair is the person distinguished as Don Turdi, who is shown as the oldest of four children born to Sinclair Dinggal and Ruby Urhurubu. Don Sinclair's father is noted as "Mandjindja - born west of Kaili? - towards Laverton, born before EW-line". It is also noted that: "Sinclair changed from Mandjindja to Nangata when a big boy - came to Karonie when still a young man". Sinclair's wife Ruby is noted as "Mandandja - born west of Warburtons".
Dr Powell gave evidence that, during her fieldwork in 1997-2000, Gary Sambo said that the map agreed between Phil Donaldson and Don Sinclair marked Lake Rebecca as a boundary and that Kapurn people are on the Kalgoorlie side of the boundary. Gary Sambo said that, beyond that point is all mulga country; Kapurn is in the gum tree country and that is how the boundary is known.
As noted earlier in these reasons, Brian Champion Snr said that the eastern boundary of Kapurn country is 30 kilometres to the east of Kalgoorlie, and that the boundary was identified and agreed to by the old people, including Phil Donaldson, Tjuntjuntjara / Cundeelee man Don Sinclair and others, when the first Kapurn claim was lodged. Simon Champion gave evidence that he drove his father, Dave Champion, to a meeting at the Koorara rock hole in the 1990s attended by Phil and Clem Donaldson and Don and Robert Sinclair. Simon did not participate in the discussion because the other men were much more senior to him, but he understood that they discussed the boundary of Kapurn country (with the implication being that the boundary was around that location).
In determining the separate questions, I have not given the evidence concerning the boundary agreement any material weight. The evidence relating to the alleged meeting and agreement between Phil Donaldson and Don Sinclair is vague and the alleged map was not in evidence. Further, and more significantly, there is no evidence that Don Sinclair had the necessary knowledge or authority to make an agreement of that kind.

[1165]

This section of the reasons considers Tindale's Maduwongga supposition. As noted earlier, this is the second of Tindale's suppositions which have proven to be the most controversial in this proceeding. Tindale's maps of the Goldfields region, the first prepared in 1940 and the second in 1974, reflected this supposition, that the country in the eastern part of the trial area was occupied by a 'tribe' named 'Maduwongga' and was not the country of Karlamaya Kapurn people.
Mr Wood observed that Tindale did not visit the eastern part of the trial area during the 1939 expedition, and nor did he access Bates's Goldfields data. Tindale principally collected data concerning Karlamaya Kapurn people at Southern Cross. Mr Wood also noted that the locational data collected by Tindale is imprecise, recording that a person was "of" a location without specifying whether the location was their traditional estate, their birthplace or their place of usual residence. As an illustration, in his 1939 genealogy Tindale recorded Don Roundhead as "of Southern Cross", but in his interview with Tindale in 1966 Don Roundhead named his primary patrilineal connections as in the north-east of the trial area.
The evidentiary basis for Tindale's Maduwongga supposition can be traced through the data he collected in 1939. For the reasons that follow, I accept the opinion of Mr Wood, Ms Taylor and Dr Powell that the supposition is unsound.
The summary of Tindale's data that follows is ordered according to the chronology of his expedition. However, it cannot be assumed that the information recorded on the genealogy sheets was recorded on the date that the sheet was first created. An examination of the genealogy sheets indicates that the information was recorded at different times (most clearly when the information is recorded in different coloured ink). Thus, although the 'Maduwongga' tribal identity appears on genealogy sheet 67 taken down by Tindale in Moore River on 26 April 1939, Mr Wood expressed the opinion that it is likely that Tindale added the Maduwongga tribal identity after interviewing Kitty Bluegum in Southern Cross on 6 May 1939.
As observed by Dr Powell, there are essentially three families associated with the Maduwongga tribal identity in the Tindale records, being the families of Jean Walker and her mother Mary, Kitty Bluegum, and Aneida / Nada Bilbear (the mother of Thomas Cooper). The information recorded about those families is discussed below.
One further person should be mentioned for completeness. Genealogy sheet 110 (taken down by Tindale in Southern Cross on 6 May 1939) refers to a man named Ginger. He is identified as Nganandjarra (Ngaanyatjarra) and the sheet records that he is "of country E of Laverton". An additional notation has been added in the form "[Mardu Tr]". The use of parentheses strongly suggests that the attribution of a "Mardu" tribal identity was Tindale's hypothesis and not what he was told directly. The informant appears to be Ginger's daughter, Norah Kunda (for whom a data card is recorded) who is identified as "of Linden (SE of Leonora WA)". On genealogy sheet 130 taken down by Tindale at Mount Margaret Mission on 11 May 1939, Ginger is identified as Nganandjarra (Ngaanyatjarra) (without any reference to "Mardu") and the sheet records that he is from "ENE of Linden - good long way NE of Karonie". On the basis of that information, it is unnecessary to consider Ginger in the context of Tindale's Maduwongga hypothesis.

[1174]

On genealogy sheet 147 taken down at Mount Margaret Mission on 13 May 1939, Tindale recorded a genealogy given to him by Thomas Cooper. On the sheet, Thomas Cooper's mother is identified as Aneida (where the letter 'A' is written phonetically as the symbol for alpha 'α') and notated as "of Kalgoorlie WA" with the words "of the original tribe of Kalgoorlie" then added. However, no tribal identity is included. Thomas Cooper's father is recorded as a white man, Arthur Hasthorpe. Mr Wood notes that Thomas has to have been the informant for at least most of the sheet, as he is the one person on it that Tindale spoke with at Mount Margaret on the day (13 May 1939). Thomas's wife Trilby was not present as her ID number is over 100 numbers after Thomas's ID number and the date on her data card is 25 May 1939. Mr Wood also notes that, on mission records, Thomas Cooper's mother's name is recorded as Nada Bilbear, but the genealogy sheet indicates that Thomas referred to her as Aneida.
Information concerning Thomas Cooper and his mother was also recorded on data card N2190. Relevantly for present purposes, the data card records Thomas's tribal identity as "Mandjindja", but the word is then heavily crossed out and initialled by Tindale. Mr Wood infers, and I accept, that the crossing out of the word "Mandjindja" was done at a later point in time when Tindale determined that Aneida should be assigned the Maduwongga tribal identity. A third page of the data card concerns Aneida. Mr Wood infers from the appearance of the handwriting and pen used, and I accept, that the page was probably added later, perhaps by Birdsell, who is signed as the primary author of the card. The page has limited information about Aneida but ascribes to her the tribal identity Maduwongga.
Mr Wood noted that Mandjindja / Mantjintja is a Western Desert group that Tindale collected a lot of information about at Mount Margaret. Tindale was informed that Mantjintja country is south-west of the Warburton Ranges. At its nearest edge it was some 500 kilometres north-east of Kalgoorlie.
Mr Wood noted that Tindale's journal contains a considerable amount of information concerning Thomas Cooper's wife Trilby and her mother Telpha, which revolved around Telpha's own Pirni group and neighbouring Western Desert groups well to the north of Kalgoorlie. However, no information was recorded concerning Aneida. Mr Wood infers from this, and I accept, that none of Telpha, Trilby or Thomas provided a tribal identity for Aneida. It is significant that Thomas initially provided his tribal identity as "Mandjindja". As Mr Wood observed, Thomas did not have a birth place connection to Mantjintja because he was born at Kanowna or Gindalbie (as discussed later in these reasons) which is not in Mantjintja country. This suggests that Thomas believed that he received the Mantjintja identity from his mother Aneida (noting that his father, Arthur Hasthorpe, and adoptive father, George Cooper, were both European). Mr Wood further observed that none of Telpha, Trilby or Thomas were able to provide any information concerning Aneida's parents or kin. This suggests that Thomas had little to do with his mother even in his early childhood. He grew up in the household of the settler George Cooper from an early age.
Mr Wood further noted that Tindale's 1939 journal contains no mention of Aneida or his discovery of the Maduwongga tribe. This is in contrast to Tindale's usual practice, when he frequently wrote such things as 'today learned about the X tribe' or 'today met a man who told me about...' as he did with Ngadjumaya and numerous Western Desert groups. Mr Wood assessed Aneida's identification as Maduwongga, along with Thomas and his children, to be solely Tindale's, as is his whole Maduwongga thesis, and that he decided upon it some days or even weeks after doing the genealogy.
Mr Wood expressed the opinion that no confidence can be placed on the statement in the genealogy that Aneida was "of the original tribe at Kalgoorlie". It is not possible to know whether this was information provided by Thomas or was inferred by Tindale and, if the former, what Thomas meant by it in circumstances where he apparently had very little knowledge about his mother. Further, the statement is inconsistent with Thomas initially providing his tribal identity as "Mandjindja" and, as discussed below, is inconsistent with the known location of Maduwongga people.

[1187]

As noted earlier, I accept the opinions expressed by Mr Wood, supported by Ms Taylor and Dr Powell, that Tindale's Maduwongga supposition is unsound. The evidentiary basis for concluding that a group of Aboriginal people known as Maduwongga occupied the eastern part of the trial area at effective sovereignty is vanishingly weak.
The Aboriginal woman who most clearly identified herself as 'Maduwongga', Kitty Bluegum, informed Tindale that she came from the Laverton area and that her country was to the east. As discussed above, her biographical information is consistent with what is known of the Martu Wangka people from South Australia. It is not known whether Jean Walker attributed the Maduwongga identity to her mother and herself, or whether Tindale attributed the identity through lack of other information. In either case, there is no significant evidence that indicates that the country of Jean and her mother was the eastern part of the trial area, beyond their residence there. It is likely that Tindale attributed the Maduwongga identity to Aneida (Nada), because Thomas Cooper initially gave his tribal identity as "Mandjindja". No material weight can be given to the notation, made by Tindale, that Aneida (Nada) was "of the original tribe of Kalgoorlie". In itself, the notation bespeaks a lack of knowledge of Aneida's tribal or language identity, further confirming a lack of knowledge about Aneida generally (noting again that no kinship information was recorded about Aneida).
As surveyed by Mr Wood, other anthropological and linguistic research through the middle of the 20th century record three groups of Aboriginal people whose identity or language were pronounced as Martu Wangka. Each of those groups were located a considerable distance from the trial area. It is likely that Kitty Bluegum originated from the Martu Wangka people in the western part of South Australia, some of whom are known to have migrated to the Laverton area.
In contrast to the Maduwongga supposition, the evidence supporting a conclusion that, at effective sovereignty, the eastern part of the trial area was the country of the Karlamaya Kapurn people is strong. It is supported by the writings of McDonald, the data obtained by Bates in 1907 and the data obtained by Tindale in 1939 (although not appreciated by him) and the further data obtained by Tindale from Don and Noona Roundhead in 1966.

[1189]

For completeness, it is appropriate to return briefly to the earlier Maduwongga native tile claim and the decision of this Court in Strickland. As noted earlier, the Maduwongga claim was filed shortly prior to the filing of the Marlinyu Ghoorlie claim and was made on behalf of a group of people called the Maduwongga, who were said to comprise a distinct land-holding group descended from Kitty Bluegum. Relevantly, the claim area overlapped in the south-west with the Marlinyu Ghoorlie claim area, and in the north-east with the Nyalpa Pirniku claim. In late 2020 and early 2021, the Court heard evidence and submissions on a separate question, which was intended to determine a dispute between the Maduwongga applicant and the Nyalpa Pirniku respondent as to who held native title rights and interests in relation to the overlap area between the Maduwongga claim and the Nyalpa Pirniku claim. That area of overlap was to the north-east, and outside, of the Marlinyu Ghoorlie claim area. In Strickland, the Court determined that the apical ancestor of the Maduwongga applicant, Kitty Bluegum, held rights and interests in the relevant overlap area under the normative system of traditional laws and customs of the Western Desert. As a result of that decision, the Maduwongga claim was dismissed by orders of the Court made on 28 April 2023 on the basis that there was no separate land-holding group known as Maduwongga.
The separate questions that were resolved in Strickland concerned an area of land and waters outside of the trial area. As such, the decision in Strickland has no binding effect on the determination of the separate questions in the Marlinyu Ghoorlie and Karratjibbin proceedings. Further, although the reasons in Strickland concern Kitty Bluegum and the meaning of the name 'Maduwongga' in Tindale's records, none of the parties placed any reliance on the findings made in Strickland. The approach taken by the parties was understandable. Strickland was decided on the evidence adduced before the Court in that proceeding. The lay and expert evidence adduced in the present proceedings was entirely different. To the extent that the findings expressed above differ from findings made in Strickland, that is explained by reason of the different evidentiary basis for each set of findings. In the circumstances, it is unnecessary to refer to the findings made in Strickland concerning the meaning of the name 'Maduwongga' in Tindale's records.

[1191]

The history of native title claims in respect of the trial area reveals that, over time, a number of families residing within the eastern part of the trial area have argued that Western Desert laws and customs applied in that part of the trial area at sovereignty. In the present proceeding, a form of that argument was advanced by the Cooper respondents, who claim an interest in the eastern part of the trial area through descent from Aneida and who identify themselves as Wongatha or Wongai.
The Cooper respondents do not contest that Karlamaya Kapurn people hold rights and interests in the trial area under their traditional laws and customs. Their position is that, in the eastern part of the trial area, a number of Western Desert people also hold rights and interests under Western Desert laws and customs. The specific claim made by the Cooper respondents to hold rights and interests in the eastern part of the trial area is discussed separately below. This section of the reasons considers the evidence in support of the general contention that Western Desert laws and customs applied in the eastern part of the trial area, conferring rights and interests in the land and waters on the Aboriginal persons acknowledging and observing those laws and customs, either in conjunction with or to the exclusion of Karlamaya Kapurn laws and customs.
It is also uncontroversial that Aboriginal people in occupation of the country to the north and north-east of the trial area at effective sovereignty were part of what has been referred to as the Western Desert Cultural Bloc, meaning that their laws and customs generally conformed to Western Desert norms. The relevant question is whether Western Desert laws and customs extended into the eastern part of the trial area, or whether distinct Karlamaya Kapurn laws and customs applied in that area.
The contention that Western Desert laws and customs applied in the eastern part of the trial area, conferring rights and interests in the land and waters on the Aboriginal persons acknowledging and observing those laws and customs, is broadly based on four categories of evidence:

[1195]

Mr Wood undertook a detailed analysis of Western Desert laws and customs and the similarities and dissimilarities with those of the Karlamaya Kapurn. Many of the features of Western Desert laws and customs have been outlined earlier. This section of the reasons provides some more detail to the analysis.
Mr Wood observed that the Western Desert ethnography reveals a distinctive culture in comparison to all those neighbouring it and wider Aboriginal Australia, not least regarding acquisition of rights in land, and linked to it, membership of ritual groups, or 'cult lodges' as some anthropologists termed a local group in control of the sacra of a tract. Mr Wood emphasised that this does not mean that everywhere else in Australia is uniform, or that some of the Western Desert customary-legal criteria are not also found in other parts of the country. But it does mean that in all other parts where there is ethnographic detail there is more genealogical structure to the acquisition of rights and, as a corollary, clearly differentiated categories of rights and more intergenerational stability to the right-holders.
Mr Wood noted that the Western Desert land interest system was not extensively studied until quite late in comparison to other Aboriginal land studies, which were conducted primarily in the monsoonal north of the country and in Central Australia. Studies such as Alfred Radcliffe-Brown's among non-Western Desert groups like the Kariera of north-west Western Australia, Phyllis Kaberry's in the Kimberley, William L Warner's in Arnhem Land, Donald Thomson's in Cape York and Arnhem Land, and the work of TGH Strehlow and Olive Pink in Central Australia all found localised totemic descent groups perpetuated through the male line to be the nuclear tenure unit, and intramurally to larger identity groupings in which membership was determined by the same principle.
Mr Wood provided an overview of the work of many anthropologists in respect of Western Desert people, including: Ronald and Catherine Berndt's research at the Ooldea Mission community in South Australia (published in 1942-1943); A P Elkin's research amongst the Western Desert people of South Australia (published in 1931); Robert Tonkinson's research at the Jigalong Mission on the western edge of the Western Desert amongst people who migrated there from the northern Canning Stock Route (published in 1974); Dr Kingsley Palmer's research at Yalata, who were the people at Ooldea in the Berndts' time who were later moved by the government to Yalata (published in 1984); and Fred Myer's research amongst the Western Desert Pintupi, who were the last to leave the Gibson Desert for settlements (published in 1986).
While the research amongst different Aboriginal groups necessarily reflected regional differences (and the accumulation of knowledge and experience of anthropological research over time), the observations of Myers capture the significant differences in the Western Desert land interest system in comparison to most other Aboriginal groups in Australia. Myers recorded extremely varied criteria for regarding oneself and others as belonging to the one ngurra (country). This, he explains, has been "illusive" to Western observers because the status of land holder in the Western Desert is an achieved one, governed by transactional politics and individuals garnering sufficient connection criteria from a wide menu of those potentially convertible to rights. These include, for example, long-term co-residence and shared experience on the country, cases of primary reliance on matrifiliation instead of patrifiliation, close kin relatedness to other members, and "degrees of consubstantiality" with a tract's Dreamings. Myers emphasised that an individual's identification with country is:

[1203]

Mr Wood observed that the conjoining of mythological narratives between neighbouring peoples is normative in Aboriginal Australia. However, it is not normative for it to give rise to ownership rights on neighbouring countries. Proprietary rights exist in the significant religious sites along Dreaming tracks, but in a segmented pattern. The traditional owners of country control the segment of the track, including its songs, stories and other sacra, which are located on their country. Their neighbours hold the segment of the same track located on their country, and so on. Mr Wood observed that some Dreaming tracks, recording the travels of mythological actors, extend over vast areas, some more than a thousand kilometres.
Dr Powell observed that the trial area is located in a region described in early and later ethno-historical accounts as a zone of transition into which and through which persons originating from places north, north-west, east and south-east travelled for "Law Business". The region is traversed by Aboriginal trade routes and routes with mythological ancestors and contains various sites associated with these routes and travellers.
Mr Wood reported that there is a significant Dreaming that commences in the trial area near Coolgardie and continues in a north-easterly direction beyond the trial area. It is known to the Kapurn as Kanku Pulatja (Uncle and Nephew), and known among Western Desert people as the beginning stage of the series of Wati Kutjarra (Two Men) Dreaming tracks. From this site the Kanku Pulatja / Wati Kutjarra (pronounced as Wati Kutharra in the western parts of the Western Desert and by Kapurn people) journey into the Western Desert through Laverton and Warburton thence on to South Australia.
As noted earlier, in both the Kapurn and Western Desert parts of the myth, the subjects are two men, identified by the Kapurn with two species of tree that grow up from residues of their spirit matter in their trails leading from Coolgardie, whereas in the Western Desert the Two Men are totemically two goanna species. In the Kapurn tradition they are also an uncle and nephew pair. Mr Wood observed that the relationship between uncles (specifically, mother's brothers) and nephews (specifically, sisters' sons) has high cultural and functional significance in the trial area and in Aboriginal Australia generally. In past Kapurn initiation rites, the initiators were drawn from the mother's brothers' side, and Kapurn informants told Mr Wood that a duty to "look after our sisters' children" remains a strong cultural value today. Mr Wood noted that the Kanku Pulatja story, and its origin site near Coolgardie, has considerable cultural significance. At this origin site, the Kanku Pulatja invented the circumcision rite and initiated each other, and then carried the rite out into the Western Desert where they introduced it to all. Mr Wood observed that the circumcision rite is focal to Western Desert ritual culture.
I accept Mr Wood's opinions with respect to the sharing of Dreaming stories that traverse the boundary of the trial area, and particularly the Kanku Pulatja / Wati Kutjarra track that commences at a site near Coolgardie. The fact that one Aboriginal group shares with a second Aboriginal group knowledge of a Dreaming track that traverses both of their countries does not support a conclusion that the first group has rights and interests in that part of the track that traverses the second group's country.
Mr Wood expressed the opinion, which I also accept, that the Kanku Pulatja / Wati Kutjarra Dreaming that commences at a site near Coolgardie is a source of cultural tension between Kapurn people and Western Desert people for another reason. That is because, as noted earlier, in the 1930s to 1950s, the Kapurn, Ngadju, and Partimaya decided to 'stop the Law', that is, to terminate the practice of the circumcision rite.
Mr Wood expressed the opinion that the effect of the decision was that the circumcision line was rolled back to the edge of Western Desert country and this was accompanied by reduced interaction between Kapurn and Western Desert people. In her affidavit, Linda Champion explained the role that Western Desert law men performed from the late 1990s in respect of sacred sites in Kapurn country to which uninitiated people are not permitted to go:

[1209]

Mr Wood reported that the early ethno-historical sources do not include detailed direct accounts by colonial observers of the Aboriginal economy in the trial area specifically, or any inventory of the natural resources exploited. Rather, the early ethnography such as that of Bates and Tindale is focused on the distinctive aspects of social and landed organisation, lexical data, and features of male initiation. Mr Wood observed that most of the specificity as to resources used in the trial area by Aboriginal people at effective sovereignty has to be inferred from current knowledge among claimants of their current and earlier use.
Mr Wood expressed the opinion, which I accept, that the right to occupy the trial area and use its resources at effective sovereignty can be inferred from the very fact that Aboriginal people were in occupation of the trial area at effective sovereignty. The fact of occupation at effective sovereignty pre-supposes that Aboriginal people were able to live from the resources of the land and waters of the trial area. Further, the evidence establishes that the Aboriginal people who occupied the trial area were a distinct group of people, with distinct social laws and customs. Their presence in the trial area at effective sovereignty was not random, but indicative of rights and responsibilities for country.
Mr Wood observed that Aboriginal economies across Australia all present variations on a single theme: the hunting and gathering of natural resources and trade in those resources and in manufactures from them, with the variations having to do with the nature and density of exploitable resources and the specific mineral and plant wealth on a group's country. Mr Wood expressed the opinion, which I accept, that customary title in Aboriginal Australia was everywhere in the nature of a full beneficial title, analogous to fee simple, notwithstanding being a communal rather than individual title. It embodied unfettered and pragmatic rights to utilise all the plants, fauna, and earth resources of usefulness on one's country for the group's immediate livelihood, for exchange, and for cultural life, subject only to the limitations of the technology of the time and the vagaries of cultural and culinary taste.
Although I consider that direct evidence of hunting and gathering and the use of resources at effective sovereignty is unnecessary, Mr Wood observed that Bates collected a vocabulary of Karlamaya words associated with hunting and gathering between Southern Cross and Mount Jackson:

[1225]

Considered as a whole, the lay witness evidence adduced in this proceeding strongly supports the conclusion that, before European settlement, the trial area was the country of the Karlamaya Kapurn people.
The date of effective sovereignty in the trial area is estimated as between 1890 and 1894. The lay evidence, including evidence of interviews with people who are now deceased, includes evidence of Aboriginal people who were born a relatively short time after the date of effective sovereignty. In particular, Don Roundhead was born in 1916, William Sambo was born in 1920, Phil Donaldson was born in 1921, Clem Donaldson was born in 1923, and Linda Champion was born in 1923. Of the senior elders who gave evidence, Brian Champion Snr was born in 1937 and Elizabeth Sambo was born in 1949.
I place considerable weight on the evidence of the oldest forebears of the claimants. In an interview in 1966 with Norman Tindale, Don Roundhead said that "Kapurn run from Southern Cross to Kalgoorlie" and his Tjalkadjara (Western Desert) wife Noona identified many places in the eastern part of the trial area as the country of her husband. Don Roundhead also said that 'Karlamaya' was an earlier word for his people: "That belong to the early days at Coolgardie to Kalgoorlie and our generations of old grandfather word. They call em Karlamaya, that their old lingo", and both Don and Noona Roundhead equated the words 'Karlamaya' and 'Karlaku'. In interviews with Stuart Fisher and Dr Powell in the 1990s, both Phil and Clem Donaldson said that the owners of the Kalgoorlie and Coolgardie area are the Kapurn people, and that Karlamaya and Karlaku is the language of the Kapurn people. In her affidavits made in 1999, 2002 and 2006, Linda Champion described her life within the trial area, that she learned when she was young that her family was Kapurn and spoke about Kapurn country.
The evidence of the lay witnesses called on behalf of the Marlinyu Ghoorlie applicant and Elizabeth Sambo also supports a conclusion that, before European settlement, the trial area was the country of the Kapurn people who spoke the Karlamaya language. The lay witnesses include senior elders such as Brian Champion Snr, Elizabeth and Gary Sambo and Ricky and Maxine Dimer. I consider the evidence of Trevor Donaldson to be largely supportive of that conclusion.
In contrast, I consider that the lay evidence adduced at the hearing that contradicts that conclusion is unreliable.
In respect of the Karratjibbin applicant, I have found that the adoption of a 'Karratjibbin' identity is a relatively recent occurrence, which followed from research of historical sources undertaken by the principal witness for the Karratjibbin applicant, Reg Yarran Jnr. I have also found that Reg Yarran Jnr was not a reliable witness and I am unable to put any weight on his evidence unless it is corroborated by other reliable evidence. Overall, the lay evidence adduced by the Karratjibbin applicant does not undermine the conclusion that the trial area was Karlamaya Kapurn country at the time of European settlement.
In respect of the lay evidence adduced on behalf of the Cooper respondents, I am not persuaded by that evidence that their forebear, Nada Bilbear, had traditional rights and interests in the eastern part of the trial area. Nor am I persuaded by that evidence that the Aboriginal society in occupation of the eastern part of the trial area were Wongatha or Western Desert people. Most of the forebears of the Cooper respondents are Western Desert people, but it is accepted by the Cooper respondents that the traditional country of those forebears is to the north and east of the trial area. It can be accepted that the Cooper respondents have lived in and around Kalgoorlie for many years and that they are Western Desert people. It can also be accepted that Gary Cooper and Maria Bandry have knowledge of sacred sites and stories in the eastern part of the trial area. But their evidence, taken as a whole, strongly suggests that their knowledge and identity as Western Desert people has been inherited from their forebears whose country is to the north and east of the trial area. Apart from Nada Bilbear, none of their forebears have rights and interests in the trial area, and too little is known about Nada Bilbear to conclude that she held rights and interests in the trial area. The lay evidence of the Cooper respondents does not undermine the conclusion that the trial area was Karlamaya Kapurn country at the time of European settlement.

[1226]

On the basis of the foregoing, I conclude that the Aboriginal society in occupation of the trial area at the time of effective sovereignty was a society composed of the Kapurn people, who spoke the Karlamaya language, which was also referred to as Karlaku.
I also conclude that the traditional country of the Karlamaya Kapurn people at effective sovereignty was likely to cover the trial area. In expressing that conclusion, it must be acknowledged that the traditional boundaries of Aboriginal societies as at effective sovereignty cannot be identified with precision, and possibly were never matters of absolute precision. However, the lay and expert evidence adduced at trial, and summarised in these reasons, provides strong support for concluding that the trial area reflects Karlamaya Kapurn country as at effective sovereignty. The principal area in dispute at trial was the eastern part of the trial area. However, there is a wealth of historical and more recent evidence that supports the conclusion that the eastern part of the trial area was Karlamaya Kapurn at effective sovereignty. That evidence includes: the inferences that arise from the Bates genealogies; McDonald's autobiography; Tindale's 1966 interview with Don and Noona Roundhead; the evidence of Pitjantjatjara man Sean Williamson; the affidavits of Linda Champion; and the witnesses who gave evidence for the Marlinyu Ghoorlie applicant and Elizabeth Sambo.
As to the laws and customs of that society at effective sovereignty, I accept the following opinions expressed by Mr Wood.
First, the Karlamaya Kapurn people acquired rights and interests in land through the male line by reference to the father and father's father, each of which held an estate intramural to the trial area and named by reference to a focal totemic site. Clan estates were intramural to a more embracing, multi-clan country group knit together by cultural coherence, including shared moiety, ritual, mythology and language.
Second, there were several forms of totemism within the trial area. One form is the totems of the generation moieties operating across the entire Karlamaya Kapurn community, being 'Beerungoomat' (Piirangumat) and 'Jooamat' (Tjuwamat). The other two forms were site-specific totems. Individuals had a personal site totem, acquired through some biographical event in their life, primarily their birthplace. Individuals also inherited from their father a totem specific to their clan and by which the clan and its estate intramural to the collective Karlamaya Kapurn country was identified.
Third, male initiation which included circumcision (and subincision) was practised.
The laws and customs of the Karlamaya Kapurn people at effective sovereignty differentiated them from their Noongar neighbours to the west and their Western Desert neighbours to their east. As observed by Mr Wood, Noongar people did not practise circumcision, and the traditional laws and customs of Western Desert groups are not structured around patriclans or generation moieties, and the primary social schema in the Western Desert region adjacent to the trial area was the four-section system.
I also accept the opinion of Mr Wood that, at effective sovereignty, and under their traditional laws and customs, the Karlamaya Kapurn people held the rights to occupy the trial area and use its resources for sustenance, ceremony and for trade.

[1227]

This section of the reasons addresses the claims made by the parties concerning apical ancestors - the earliest known ancestors of the parties who are claimed to have held native title rights and interests in the trial area, and from whom the parties claim to have acquired native title rights and interests by descent (whether biological descent or by adoption).
In the preceding section of the reasons, the conclusion was reached that the Aboriginal society in occupation of the trial area at sovereignty, and who held rights and interests in the land and waters of the trial area under their traditional laws and customs, were the Karlamaya Kapurn people. At the time of effective sovereignty, rights and interests in land and waters were transmitted under the traditional laws and customs of the Karlamaya Kapurn people by a principal of patrilineal descent. As will be discussed below, adaptation to those laws and customs was necessitated by European settlement which resulted in many Karlamaya Kapurn children being fathered by European settlers. As occurred in many parts of Australia, the traditional laws and customs of the Karlamaya Kapurn people adapted to those new circumstances, which were forced upon the Karlamaya Kapurn people, to recognise the transmission of rights and interests in land and waters by cognatic descent (whether biological descent or by adoption).
It follows that cognatic descent (whether biological descent or by adoption) from a Karlamaya Kapurn forebear is a necessary condition for acquiring native title rights and interests in the land and waters of the trial area. It is not, however, a sufficient condition. Native title rights and interests necessarily have a communal dimension. This was recognised in Mabo (No 2). It follows from the fact that "native title has its origins in and is given its content by the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of a territory": Mabo (No 2) at 58 (Brennan J), and at 110 (Deane and Gaudron JJ). It is also reflected in the statutory definition of native title. While native title rights and interests may be communal, group or individual, the foundation for the rights and interests is the acknowledgment and observance of traditional laws and customs by the relevant community. Brennan J explained in Mabo (No 2) (at 62) that communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands - individual rights and interests are dependent on the communal native title. As the lay evidence shows, and as is consistent with the laws and customs of many Aboriginal societies across Australia, rights and interests in the land and waters of the trial area possessed under the traditional laws and customs of the Karlamaya Kapurn people are communal in nature. Possession of rights and interests requires not only descent from a Karlamaya Kapurn forebear, but also identification as a member of the Karlamaya Kapurn community and recognition as such by the Karlamaya Kapurn community.
This section of the reasons is confined to the question of cognatic descent. The requirements, under traditional law and custom, for a person to identify as Karlamaya Kapurn and to be recognised by the community as a Karlamaya Kapurn, are considered separately below. Accordingly, this section of the reasons examines and makes findings about the evidence concerning the claimed apical ancestors of the parties and considers:

[1229]

The Marlinyu Ghoorlie applicant contends that the persons who presently hold native title rights and interests in the trial area are all the descendants of the identifiable Karlamaya Kapurn apical ancestors who are known to have descendants, namely Warada and Kaddee (husband and wife under traditional law), Lucy Sambo and Nellie Champion (also known as Kajjaman). This includes those who: (a) are descendants by adoption in accordance with the traditional laws and customs of the Karlamaya Kapurn people; (b) though not descended from those ancestors, have been incorporated into the Karlamaya Kapurn group in accordance with their traditional laws and customs; or (c) are descended from persons who have been so incorporated. At the conclusion of the trial, Elizabeth Sambo supported the Marlinyu Ghoorlie applicant's contention.
The Karratjibbin applicant contends that the persons who hold rights and interests in the Karratjibbin claim area are "the biological descendants of Karratjibbin traditional owners and apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby or who have been adopted, in accordance with the traditional laws and customs of the Karratjibbin people, by one or more of those biological descendants". During the trial, the Karratjibbin applicant acknowledged that: (a) the ancestors Polly and Eva are affinal ancestors insomuch as Polly and Eva are not known to have any current living descendants; (b) Nimmo (also known as Toby Williams) was the son of apical ancestor Toby (and therefore not an apical ancestor); and (c) they had not adduced any positive evidence establishing that Toby was an apical ancestor for the purposes of the claim. Accordingly, the Karratjibbin applicant proceeded on the basis that the members of the Karratjibbin claim group are descendants of Billy Yambinut. In closing submissions, the Karratjibbin applicant advanced the contention that the Karratjibbin claim group are "entitled to adopt" the Karlamaya Kapurn labels used by the Marlinyu Ghoorlie claim group in respect of themselves. There are numerous difficulties with the Karratjibbin contentions concerning the inheritance of rights and interests in the Karratjibbin claim area, but the most striking is that the contentions conflict with the evidence given by the Karratjibbin witnesses. First, none of those witnesses said they were Karlamaya or Kapurn people. Second, none gave clear evidence that they acquired rights and interests in the Karratjibbin claim area through descent from Billy Yambinut. Each of those witnesses claimed to be Karratjibbin through descent from Nimmo (who was also known as Toby Williams and was the son of Toby). For example, Reg Yarran Jnr deposed that "Toby Williams' mother was Eva, and both were born in Mount Jackson" and that "I claim my Karratjibbin heritage through my apical ancestors Eva and her son Toby". In the end, the contentions advanced by the Karratjibbin applicant were riddled with inconsistencies.
The Cooper respondents contend that they possess native title rights and interests in the eastern portion of the trial area through descent from Nada Bilbear (also known as Aneida). However, they did not contend that Nada was a Karlamaya Kapurn person, and the Cooper respondents do not claim to be Karlamaya Kapurn people.
The discussion that follows involves an assessment of the historical evidence collected by the anthropological witnesses as well as family and community oral history as recorded in the lay evidence. It is important to note that historical evidence concerning Aboriginal people dating back to European settlement of a given area can be patchy. It is not essential that documentary evidence be available in order to establish that an individual was a Karlamaya Kapurn person. Family and community oral history concerning an individual, and particularly relating to their traditional tribal identity, may be sufficient. Ultimately, the Court must assess the totality of the available evidence and make findings applying the civil standard of proof.
In that context, it is important to emphasise the relevance of both family and community evidence in support of a conclusion that a particular individual was a Karlamaya Kapurn person. The views of an individual, or even a family, may by idiosyncratic. Reflecting the communal nature of native title rights and interests, and the importance of kinship relationships within Aboriginal societies, the views of the relevant community - in this case, the Karlamaya Kapurn community - carry weight with respect to the question whether a forebear was a Karlamaya Kapurn person. It follows that, in determining whether an individual was a Karlamaya Kapurn person who held rights and interests in the trial area, and whether their (biological or adopted) descendants are Karlamaya Kapurn people who hold rights and interests in the trial area, it is both relevant and necessary to consider the evidence of the present day Karlamaya Kapurn community, and whether that community acknowledges that the relevant individual is a member of the community holding rights and interests. This is to recognise that, in a community in which identity, laws and customs are transmitted orally from generation to generation, members of the present day Karlamaya Kapurn community will principally gain their group identity, and their knowledge of traditional laws and customs, from their immediate forebears - their parents and grandparents - rather than a more distant apical ancestor.

[1233]

The Southern Cross genealogy records that Kaddee and Beerdadheeroon had no children. The genealogy also recorded that Kaddee's former husband, Warada, is "one of the owners of Koolgardee" and that Kaddee and Warada had three children: a daughter named "Kandowela", a son named "Billy or Nyimmaning" and a child of unknown gender named "Wabbong or Bulbongandnoon", each of whom is identified by the Boorong class or skin group. In other notes, Bates describes Kandowela as belonging to the Beerungoomat moiety, consistent with being a Kapurn person.
Ms Taylor expressed the opinion, which I accept, that Kaddee was a Kapurn person based on the facts that her family is recorded on the Mount Burges genealogy as "Wanmala people" (and therefore would have self-identified as 'wanmala kaboon'), that her family is recorded as being from Mount Burges (and used the Karlamaya name for Mount Burges, Muluuri), the status of her husband, Warada, as an owner of Coolgardie, and her use of a Karlamaya vocabulary (as given to Bates in Coolgardie). Ms Taylor estimates Kaddee's and Warada's year of birth to be approximately 1840. That estimate is based on the estimated year of birth of her son, Billy (Nyimmaning), who is discussed below.
Each of Dr Powell, Mr Wood and Mr Leo agreed with the conclusion that both Warada and Kaddee held rights and interests within the trial area under traditional law and custom, and Dr Corrigan expressed no opinion.
The lay evidence given on behalf of the Marlinyu Ghoorlie applicant and Elizabeth Sambo is consistent with the conclusion that Warada and Kaddee were Karlamaya Kapurn people who held rights and interests in the trial area under Karlamaya Kapurn laws and customs. As Warada and Kaddee are at least four generations earlier than living members of the Marlinyu Ghoorlie claim group, it is understandable that few members of the claim group have any personal knowledge of them. Ricky Dimer, Mark Champion, Elizabeth Sambo, Davina Sambo and Trevor Donaldson referred to Warada and Kaddee as their forebears (being the parents of King Billy), but it is uncertain whether their knowledge was passed down through the family or was learned from the ethno-historical records. Nevertheless, the evidence discussed below supports the conclusion that King Billy was a descendant of Warada and Kaddee, and many of the Marlinyu Ghoorlie witnesses referred to King Billy and his children, Tom Roundhead, Frank Roundhead, Johnny Wilson and Alice Wilson / Minjin, as Karlamaya Kapurn people. The evidence taken together supports the conclusion that Warada and Kaddee were Karlamaya Kapurn people.
On the basis of the foregoing evidence, I am satisfied that Warada and Kaddee were Karlamaya Kapurn people who held rights and interests in the trial area under Karlamaya Kapurn laws and customs.

[1237]

In contrast, Billy (Nyimmaning), known as 'King Billy', is an ancestor of many Marlinyu Ghoorlie claim group families. There is no record of Tindale meeting King Billy and the only European record that likely relates to him is a death certificate for a 'Billey King' who died on 14 October 1935 at Kalgoorlie Hospital. Nevertheless, substantial oral history of the Marlinyu Ghoorlie claim group identifies Billy (Nyimmaning) as 'King Billy' who was a senior elder in the trial area, and the ancestor of many families through his biological or adopted children: Tom Roundhead (father of Don Roundhead), Frank Roundhead, Elizabeth Wilson, Johnny Wilson and Alice Wilson / Minjin. Alice married Richard (Dick) Donaldson who, as discussed in the lay evidence, became a senior elder in the trial area, and their children include Phil Donladson, Clem Donaldson and Dorothy Dimer. It appears that little is known about Elizabeth Wilson and she has no known descendants. King Billy's Aboriginal name is often spelled as Nyuumani (or similar variations) by his descendants (and the spelling Nyuumani has been adopted in other parts of these reasons).
As stated earlier in these reasons, Phil Donaldson was interviewed by Stuart Fisher in 1992. In the interview, Phil Donaldson said that: Alice Wilson / Minjin's father was King Billy and her mother was Mary-Ann (whose Kapurn name was Karan); Frank Roundhead was Alice Wilson / Minjin's brother (and therefore King Billy's son). Clem Donaldson was also interviewed by Stuart Fisher in 1992 and said that his mother was named Alice; that Alice's father was a white man, but she was brought up by King Billy; that Frank Roundhead was his uncle; and that King Billy was his grandfather, that King Billy's Aboriginal name was "Nyummarning" (being the spelling used in the transcript of the interview) and that King Billy died in 1934.
Ms Taylor reported that Dorothy Dimer's 2004 affidavit states that she is King Billy's granddaughter and she remembered King Billy from when she was young. She stated that King Billy was a Coolgardie elder and born around Rowles Lagoon (23 kilometres south of Ora Banda within the trial area), which was part of his father's (Warada's) main tribal area. She remembered how King Billy looked after sites around Coolgardie and how he passed his traditional knowledge on to his son-in-law Richard (Dick) Donaldson who married King Billy's daughter, Alice. Dorothy's father, Dick Donaldson, told her that King Billy's father, Warada, was a traditional owner for the Coolgardie area and married an Aboriginal woman called "Caddee". According to Dorothy Dimer, King Billy died in 1934 at the Kalgoorlie Hospital and is buried at Kurrawang (between Kalgoorlie and Coolgardie).
Ms Taylor also reported that Dorothy Dimer's 2004 affidavit stated that King Billy was married to Mary-Ann, whose Kapurn name was Karan, and who was born in the Davyhurst area (on the north-eastern boundary of the trial area) and died in Coolgardie in 1931. Mary-Ann had a daughter named Alice in 1899, who is Dorothy Dimer's mother. Dorothy Dimer's affidavit states that Alice's father was a white man named Michael Francis O'Shaunnessey, but Alice was adopted and raised by King Billy. Dorothy's mother and father (Alice and Dick Donaldson) told her that they usually travelled around with Karan and King Billy and would visit places such as Southern Cross and Norseman.
The lay evidence, set out earlier in these reasons, also supports the Marlinyu Ghoorlie claimants' contention that the person known as King Billy was Kaddee and Warada's son, and that he is the biological or adoptive father of Tom Roundhead, Frank Roundhead, Elizabeth Wilson, Johnny Wilson and Alice Wilson / Minjin. I accept that contention.

[1238]

Ms Taylor reported that Tom (or Tommy) Roundhead is referred to in a number of European records, both newspaper reports and police reports. He is first mentioned in early newspaper records for Boulder (near Kalgoorlie), participating in a boxing match in 1899. Based on that report, Ms Taylor estimates that he would have been born before 1879.
Tom Roundhead appears on Tindale's genealogy sheet 73 taken down at Moore River on 26 April 1939 and revised at Southern Cross on 6 May 1939, and on Tindale's genealogy sheet 117 taken down at Southern Cross on 6 May 1939. Genealogy sheet 73 refers to Tom as a "f.b. of Coolgardie" (signifying 'full blood'). Tom is referred to as the first husband of Eva, and they had a son, Don Roundhead (who was then 23 years old, giving a year of birth as 1916). Tindale notes that Tom died when Don was a boy. Tindale did not identify Tom's mother or father. Don Roundhead, and the interview he gave to Tindale in 1966, are discussed earlier in these reasons.
Tom Roundhead's wife, Eva, is recorded on Tindale's genealogies with the notation "fb Ka:lamai" and "of Golden Valley". Tindale's data cards also show that Eva had two Karlamaya parents: her father was from Wilgoyne and her mother was from Mount Jackson and estimates her birth year as 1886. Eva's death certificate is dated 1952 and: confirms her place of birth was Golden Valley, but gives her birth year as about 1892; states her father's surname as Barrack and her mother's name as unknown; states her usual address as the Aboriginal Reserve in Southern Cross; and also shows that she had two other sons, Larry and Jim who were both deceased. As noted below, after Tom died, Eva married Tom's brother Frank in 1922 who then raised Don. Eva later married Johnny Paddy and was with Paddy when she was an informant to Tindale in 1939 in Southern Cross.
Ms Taylor reported that Dorothy Dimer's 2004 affidavit states that Tom Roundhead was the child of King Billy and Maggie Jimbo, a Mirning woman, and was the brother of her mother (Alice). Dorothy Dimer stated that Tom went to live in Southern Cross where he married Eva and they had two children - Don (Roundhead) and May (Paddy). There is no other evidence concerning a possible sister of Don called May. Dorothy stated that, when Tom Roundhead died, his son Don Roundhead was brought up by Tom's younger brother, Frank Roundhead.

[1242]

Johnny Wilson appears on Tindale genealogy sheet 176 taken down at Mount Margaret Mission on 16 May 1939 with the notations "of Southern Cross" and "fb" (signifying 'full blood'). The genealogy also records that he had a son, Cecil Wilson, with a "full blood" Aboriginal woman, and another son, George Wilson who was notated as "F1" (indicating that he had a non-Aboriginal mother or father). Cecil's tribal identity is given as Kala:mai (Karlamaya). It is apparent that Cecil was the informant for the genealogy. Ms Taylor reported that Dorothy Dimer stated in her 2004 affidavit that Cecil Wilson's mother was Lilly Kalimara from Norseman and that George Wilson was the son of Greta Rule, an Aboriginal woman from Balladonia, and a white man, and was adopted by Johhny Wilson.
Ms Taylor reported that, in a 1992 interview with Stuart Fisher, George Wilson said that he was born in Southern Cross and was reared in Coolgardie and Kalgoorlie. George recognised Johnny Wilson as his stepfather and Cecil as his stepbrother, and confirmed that King Billy's daughter Alice was a sister to Johnny. In a separate interview with Stuart Fisher in 1992, Desmond Sambo recognised George Wilson as one of the main 'bosses' for Coolgardie along with Dick Donaldson. Native welfare records also show that Johnny Wilson recognised both George (adopted) and Cecil (biological) as his children. A letter from M C Belshaw at Mount Margaret states: "He [Johnny] and Cecil also talked of an elder brother George about two years older than Cecil. Twice I wrote to the father for Cecil, and the father in replying mentioned the brother George and signed himself as John Wilson".
Johnny Wilson died on 3 December 1929. A letter from Fred Dally, Protector at Norseman, confirms that Johnny was working at Balladonia Station for the previous 12 months and was very sick prior to his death in Norseman Hospital.
Ms Taylor estimates Johnny Wilson's year of birth as around 1895. Cecil's identification of himself as Karlamaya supports the evidence that Johnny Wilson was a Karlamaya Kapurn person.

[1247]

Ms Taylor reported that Broad Arrow Tommy has no available native welfare file and he is not listed in the Bates or Tindale genealogies. A 1913 article in the Kalgoorlie Miner about a Tommy and Sarah in Kalgoorlie is the earliest record connecting Broad Arrow Tommy to the trial area. In 1926, an article in the Kalgoorlie Miner mentions "Tommy, a bewhiskered Aboriginal native from Broad Arrow has come into Kalgoorlie to spend the Christmas holidays". The article talks about his arrangements to marry "Granny" of the Coolgardie tribe during the week, and that "full Aboriginal rites will be observed". Broad Arrow is a now deserted town between Kalgoorlie and Goongarrie, located within the trial area.
Ms Taylor further reported that oral histories and newspaper articles dated between 1913-1940 demonstrate that Broad Arrow Tommy had a long association with the Kalgoorlie region and the eastern portion of the trial area. Tommy died in 1940 at the Kalgoorlie Hospital. His death certificate puts his age at 70 and calls him 'Tommy O'Reedie'.
In a 1992 interview with Stuart Fisher, together with George Wilson and William Sambo, Clem Donaldson said that Lucy Sambo's father's name was Muradi, but that "whitefellas" called him Broad Arrow Tommy. William Sambo (Lucy Sambo's son) agreed. Clem also said that Broad Arrow Tommy spoke a different language to the Kapurn people. William Sambo (Tommy's grandson) did not correct him. Clem said it was the same "lingo" as Arthur Newland's mother, Kitty Bluegum, who Tindale recorded as being "of Edjudina" in 1939.
Elizabeth Sambo gave evidence that Lucy Sambo's father was called Broad Arrow Tommy but his Aboriginal name as "Udaji" (which differs from the Aboriginal name given by Clem Donaldson in the interview with Mr Fisher). Elizabeth Sambo said that, in the early 1900s, Broad Arrow Tommy used to live in the old lock-up at the back of the police station in Coolgardie. Elizabeth Sambo's father (William Sambo) told her that, when he was young, his family used to camp there with Broad Arrow Tommy. Elizabeth stated her belief that Broad Arrow Tommy, and his daughter Lucy, were Kapurn people, and that Elizabeth is Kapurn by descent from them.
Gary Sambo also gave evidence that Lucy Sambo's father's name was Udaji. In oral testimony, Gary Sambo agreed that he had heard Lucy Sambo's father referred to as Broad Arrow Tommy. However, Gary said that he did not know much about Udaji.
Ms Taylor expressed the opinion that the evidence supports the conclusion that Broad Arrow Tommy was not a Kapurn person, and most likely originated from an area north-east of the trial area (Edjudina, Pinjin, Kurnalpi and/or Coonana).
In my view, the evidence with respect to the tribal identity of Lucy Sambo's father is inconclusive. Certainly, the statements made by Clem Donaldson suggest that Lucy Sambo's father spoke a language other than Karlamaya, which strongly suggests that he was not a Kapurn person. Against that, and as discussed further below, the evidence indicates that Lucy Sambo's descendants are accepted as members of the Karlamaya Kapurn community, and Elizabeth Sambo believed that Lucy Sambo was Kapurn by descent from her father. For the reasons discussed below, I have found it unnecessary to reach a concluded view about the tribal identity of Lucy Sambo's father.

[1250]

Ms Taylor reported that, according to oral histories, Joe Diamond was Lucy Sambo's brother and also the son of Broad Arrow Tommy. That statement appears to have been based on statements made to Ms Taylor by members of the Sambo family during her research. However, none of the members of the Sambo family who gave evidence at trial referred to Joe Diamond.
The fact that Joe Diamond's father was Broad Arrow Tommy is nevertheless supported by a document contained in the native welfare file pertaining to a Joe Diamond of Norseman. A note records that, in 1937, Joe Diamond told a local constable travelling through Coolgardie that his father was Broad Arrow Tommy, and all his relations were dead. As noted below, Lucy Sambo did not die until 1939, which casts some doubt on the belief that Joe Diamond was Lucy's brother.
Ms Taylor further reported that native welfare records and newspaper articles show that Joe Diamond had a long association with the Southern Cross and Coolgardie regions. In 1930, he made a significant discovery of gold near Coolgardie and held prospecting leases at Southern Cross at a time when this was very unusual for Aboriginal people to do so. In 1937, he was reported in newspaper articles as being in Kalgoorlie. Native welfare records show that, from 1937-1938, Joe Diamond received numerous medical treatments for paralysis at the Southern Cross Hospital, and that he died at Southern Cross Hospital aged 50 years of cerebral haemorrhage and was buried in the Southern Cross Cemetery.
Ms Taylor noted that the historical records refer to two different people having the name Joe Diamond in the Southern Cross and Norseman regions. There are two separate death certificates - one for a Joe Diamond in the Yilgarn region (1939) and one for a Joe Diamond in the Dundas region (1948). The latter Joe Diamond was an informant to Tindale on the "Kala:ko" tribe and appears on Tindale's genealogy sheet 207 created in Norseman on 1 June 1939.
Joe Diamond has no known descendants.

[1251]

Ms Taylor reported that Lucy Sambo and her children had a long association with the trial area. In 1919, Lucy was living with the police tracker Cordi Sambo, who was originally from the Marble Bar region, and who arrived in Coolgardie from Rottnest Island in 1912. The Department of Native Affairs file for Lucy records that she was imprisoned for stealing and she and her infant child Willie were sent to Carrolup Mission to serve the sentence. By 1921, Lucy had escaped Carrolup and returned to Mount Burges and was being supported with her child by her brother Joe Diamond. Lucy and Cordi Sambo continued to live around the trial area for the rest of Lucy's life.
Ms Taylor also reported that a 1937 letter to the Chief Protector of Aborigines states that Lucy is "said to have been born in Boulder or Kalgoorlie territory" and is living in the Southern Cross (Aboriginal) camp with her four sons: "Big William, Arthur, Cudley [sic] and young Sambo, but they all appear to be half castes". Native welfare records show that Cordi Sambo recognised himself as the father for all these children, but as all the children were deemed "half caste" in those records, he was more likely the adoptive father for the children.
A police record from 1939 documents the sudden death of Lucy at Barbalin (near Mukinbudin) and confirms that she was buried nearby. Cordi Sambo died at Coolgardie Hospital with pneumonia in 1959.
As noted earlier, William Sambo was born about 1920 in Coolgardie and died in 1999. William Sambo was interviewed by Stuart Fisher in 1992. In that interview, William told Stuart Fisher that his mother, Lucy, was born in Kalgoorlie. William Sambo also told Dr Powell during her research between 1997 and 2000 that his mother Lucy is buried on "Mr Clamp's farm at Barbalin", which is about 10.5 kilometres west of Mukinbudin. He also told Dr Powell that he was "reared up" by "Auntie Mary" and Charlie Nowa / Shepherd.
Phil Donaldson and Desmond Sambo were also interviewed by Stuart Fisher in 1992. Desmond Sambo was born in 1940. His father was Willie Sambo, who was the eldest son of Lucy Sambo. Willie was an older brother to William. In the interview, Desmond stated that he is a "Kapurn" person and that the Sambo's are Kapurn people. Phil Donaldson spoke about how his father, Dick Donaldson, "reared Willie up" and used to work with him out at Pinjin Station, and how Willie and Phil went through Kapurn law at Coolgardie. Phil spoke about "all [Willie's] sacred sites being on the Kalgoorlie side; and mine's on the Coolgardie side".
Linda Champion was the wife of William Sambo. As noted earlier, she gave evidence in the Central West Goldfields proceeding in 2006 that William's mother, Lucy, was Kapurn.
Elizabeth Sambo gave evidence that her paternal grandmother, Lucy Sambo, was also known as Tarda. Elizabeth believes that Lucy was a Kapurn woman. Elizabeth said that she was told by her father, William Sambo, and Uncle Cadley Sambo, that their mother, Lucy Sambo, and her eldest sister, Muminga, were the law women for the area of Coolgardie, East Coolgardie and Kalgoorlie.
Gary Sambo also gave evidence that his paternal grandmother, Lucy Sambo, was a Kapurn woman. He believed that she was born in Kalgoorlie.
Maxine Dimer gave evidence that two of Lucy Sambo's children, William and Cadley, grew up with Maxine Dimer's mother, Dorothy, and her brothers. Maxine's grandmother, Alice Minjin, looked after them as she didn't want "the welfare" to take them. Although Maxine referred to William in her evidence, it seems likely that she was referring to Lucy Sambo's son who was known as Willie. The evidence is consistent with Phil Donaldson's statements to Stuart Fisher, referred to above, that Dick Donaldson (Maxine's grandfather) "reared Willie up".
Ms Taylor expressed the opinion that, although there is a lack of evidence concerning Lucy Sambo's origins, she considers that "the Sambo family" should be considered to be Kapurn. This is because Lucy Sambo's children had Kapurn identities, spoke Kapurn language, and lived and worked with Kapurn families across the whole of the trial area. Ms Taylor reasons that this must be the result of either Lucy Sambo being recognised as Kapurn, or her children being 'naturalised' as Kapurn by the broader Kapurn society by reason of their adopting Kapurn language and culture.
The evidence establishes that Lucy Sambo's children and their descendants identify themselves as Kapurn and are recognised as Kapurn by the Karlamaya Kapurn community. Lucy Sambo's children were born in the early part of the 20th century. Thus, Lucy Sambo's descendants have been recognised as Kapurn for the last century. Those circumstances suggest that Lucy Sambo was herself Kapurn. However, another possibility exists. The evidence indicates that at least three of Lucy Sambo's children, Willie, William and Cadley, were raised by Kapurn people. As noted above, Willie was "reared up" by Dick Donalsdson and went through Kapurn law at Coolgardie. William was "reared up" by Charlie Gnow (also known as Charlie Shephard and Charlie Maddock). Cadley grew up with Dorothy Dimer (the daughter of Dick Donaldson and Alice Minjin Wilson). This suggests the alternative possibility that at least Willie, William and Cadley were adopted into the Kalarmaya Kapurn community. It should also be noted that William married Linda Champion and Cadley married Linda's sister Gertie Champion, both of whom were Kapurn women by descent from Ted Champion.
Taking all of the above matters into account, I have no difficulty in concluding that the descendants of Lucy Sambo are Karlamaya Kapurn people. The evidence indicates that the descendants of Lucy Sambo have been recognised as Kapurn people by the Karlamaya Kapurn community for the past 100 years. On balance, I consider that there is sufficient evidence to find that Lucy Sambo was herself a Kapurn person, even though the evidence concerning the tribal identity of her father is inconclusive and nothing is known about Lucy Sambo's mother. This is a circumstance in which the communally recognised identity of Lucy Sambo's descendants provides a sufficient evidentiary foundation to find that Lucy Sambo shared that identity, whether by descent from a Karlamaya Kapurn forebear or adoption into the Karlamaya Kapurn community.

[1261]

Kajjaman is included in the same genealogy prepared by Bates in Southern Cross in 1907 as Warada and Kaddee. As noted above in that context, the Southern Cross genealogy is headed "Mollooree, Mt Burgess". The word "Mollooree" (Muluuri) is the Kapurn name for Mount Burges. Ms Taylor expressed the opinion, which I accept, that the heading of the genealogy most likely indicates the location of where the family was from. As noted earlier, Kajjaman was one of the persons who provided Bates with Karlamaya vocabulary.
The relevant part of the genealogy commences one generation above Kajjaman. Kajjaman's father is identified as Bilgidee, with notations stating that his generation moiety is Beerongoomat and that he is "Of Koolgardie". Kajjaman's mother is identified as Nyooraman, with a notation stating that her generation moiety is Beerongoomat. The children of Bilgidee and Nyooraman are listed as Kajjaman and Kanyeedee, with notations indicating that their generation moiety is "Joowuk". As discussed earlier, these generation moieties are a distinctive feature of Karlamaya Kapurn people.
In the genealogy, Kajjaman's husband is identified as Boondabung (with the notation "from Roebourne") and her children are identified as Nokkana (male), Barran (female), Meelongin (male) and "2 others". Barran's husband was Wooberee, but the genealogy indicates that they did not have children.
As discussed below, Kajjaman's son Nokkana is identified in other documents with the person known as Jack Champion. Nothing more is known about Kajjaman's daughter Barran. As also discussed below, it is likely that either Meelongin, or one of the two other unidentified children of Kajjaman, is the person known as Ted Champion.
There is no reason to doubt that Kajjaman was a Karlamaya Kapurn person. Her father was from Coolgardie, and Kajjaman and both of her parents identified themselves with the distinctive generation moieties. The area of dispute at the trial concerned the question whether Kajjaman was the woman also known as Nellie Champion whose known children were Ted Champion (born around 1898 and died 1968) and Jack Champion (born around 1901 and died 1981).

[1262]

The evidence that Kajjaman was the woman also known as Nellie Champion is strong. The documentary evidence supporting that conclusion was gathered in Ms Taylor's reports.
The first document is a letter from the Southern Cross Police to the Protector of Aborigines dated 5 August 1909. The letter stated that there were four "half-caste children" living in the "natives' camp" at Southern Cross with their mothers who recently came from Kellerberrin or Northam. The letter lists a "Nockiney @ Jack" aged 10 whose mother was "Kudjemon @ Nellie". The @ symbol indicates an alternative name (here, an associated European name). The letter identifies a mother and child in Southern Cross in 1909 (two years after Bates's genealogy) as Kudjemon (Kajjaman) and Nockiney (Nokkana) who also used the European names Nellie and Jack.
The second document is a ration record from Southern Cross in 1921 which includes a reference to a woman named "Cudgiman alias Nellie".
The third document consists of the Department of Native Affairs file for Nellie Champion, which contains correspondence concerning Nellie and which results in Nellie being removed from Kellerberrin to the Moore River Native Settlement in 1924. The correspondence mentions her sons Ted and Jack Champion.
The fourth document is the death certificate for Nellie Champion which identifies her as "Nellie Cudgeman". She died on 3 January 1929 at the Moore River Native Settlement. The fact that the death certificate records Nellie's name as "Nellie Cudgeman" indicates that Nellie continued to use her Aboriginal name. Although the death certificate states Nellie's age as 87, that is inconsistent with the age of her children (with Jack being born in about 1901). Ms Taylor expressed the opinion, with which I agree, that Nellie's birth year would have been approximately 1865.
It should be noted that the Bates genealogy (in 1907) identifies Kajjaman's husband as Boondabung from Roebourne. As discussed below, Tindale data from 1939 records that Jim Champion, an Ingarda man from Shark Bay, had been married to Nellie and was regarded as the adoptive father of Ted and Jack. The evidence does not reveal when Jim Champion and Nellie 'married'. Given that Ted and Jack adopted Jim's surname, it seems likely that that occurred when they were relatively young. Jim Champion told Tindale in 1939 that he had been in the Southern Cross area for 30 years. From at least 1923, Nellie is identified in the Department of Native Affairs file as Nellie Champion, and her sons Ted and Jack are also given the 'Champion' family name. There is no necessary inconsistency between the Bates data and the Tindale data, and the two sources of data do not lead to a conclusion that Kajjaman was not Nellie Champion. Two obvious explanations for the data exist. The first is that Jim Champion's Aboriginal name was Boondabung and that his place of origin was incorrectly recorded by Bates. The second is that Boondabung was Nellie's first husband and Jim Champion was her second husband.
The consistent association of the names Kajjaman and Nellie provides significant evidence that Kajjaman was also the woman named Nellie Champion. That conclusion is further supported by the association of the names Nokkaney / Nokkana (who is identified in the Bates genealogy as Kajjaman's son) and Jack (who is identified as Nellie's son). Having regard to this evidence, I am satisfied that Kajjaman was also the woman named Nellie Champion.
Even if there were any doubt about that conclusion, for the reasons expressed below I am independently satisfied that Nellie Champion was a Kapurn person. That conclusion is supported by the Tindale data referred to below and the evidence of and concerning her descendants.

[1265]

As noted above, Bates's genealogy for Kajjaman records that she had at least two sons, Nokkana and Meelongin, and possibly more (with Bates referring to two other unidentified children). Nokkana was the person also known as Jack Champion who is discussed further below. For the reasons given below, it is likely that Meelongin, or one of the two other identified children, was the person known as Ted Champion but that his Aboriginal name ceased to be used over time and is not recorded elsewhere.
The Tindale records concerning Nellie Champion do not refer expressly to her son Ted Champion, but the genealogy refers to a son by the name of "Barbakin" with the notations "F1" (Tindale's term for 'half-caste') and "lives at Koradjing". No data card was prepared for "Barbakin" and it appears that the son being referred to was not present when the genealogy was created. As noted earlier, Nellie's file at the Department of Native Affairs expressly refers to her son Ted who is described as "half-caste". There is no dispute that Nellie had a son named Ted, and there is no dispute that Ted and Jack Champion were brothers. Ms Taylor expressed the opinion, which I accept, that the reference to "Barbakin" in the Tindale genealogy involved a misunderstanding of what either Jim Champion or Jack Champion said about Ted Champion. Other evidence shows that, at the time of the creation of the genealogy, Ted Champion was living or working in Babakin, a town in the Wheatbelt Region to the west of the trial area. Ms Taylor reported that Jack Champion's native welfare file recorded that, in the late 1930s, Jim Champion went to live with Ted Champion in Babakin where Ted was working with his family. The town of Corrigin (recorded by Tindale as "Koradjing") is a short distance away from Babakin.
Ted Champion's daughter, Linda Champion, was born in 1923 in Kellerberrin and died in 2011. Three affidavits made by Linda Champion were tendered in evidence, and have been referred to earlier. In those affidavits, Linda stated that her father, Ted Champion, was born at Wilgoyne, near Mukinbudin. She believed that her father was born before 1900, because she was told that he was around 25 when she was born. He was some years older than his brother Jack, who was born in 1901. Ted Champion died in Kalgoorlie about 1968. Linda Champion deposed that Ted and Jack Champion grew up in the camps of Kapurn people (although Linda used the spelling Gubrun) who were living in the bush and in the fringe camps, in the country between Mukinbudin and Coolgardie. Linda Champion further deposed that the name of her father's mother was Nellie. Linda Champion was told by her father and other old people that Nellie came from the Mount Jackson, Southern Cross area and that Nellie was a Kapurn woman. Dr Powell gave evidence that her notes (from her fieldwork in 1997-2000) record that Linda Champion consistently identified herself as Kapurn, on the basis of her descent from Nellie Champion; and that, notwithstanding the lack of documentary material in 1997-2000 about the connections of Nellie Champion to the Kalgoorlie / Coolgardie region, Linda Champion stated, on the basis of oral accounts of older people passed down to her, that her grandmother Nellie and her father Ted Champion were Kapurn people and that their old people belonged to the Kalgoorlie / Coolgardie / Southern Cross region.
Ted Champion's son, Brian Champion Snr, was born in 1937 at Kwolyn, a town in the Wheatbelt Region. Brian Champion Snr's evidence is set out at length earlier in these reasons. Relevantly, Brian Champion Snr said that, at the time of his birth, his father was working as a farm labourer in Kwolyn. He was the seventh of nine children and, when he was very young, the family lived in bush camps on the outskirts of the towns of Kwolyn and Babakin. Brian Champion Snr said that his father's mother was Nellie Champion but that his father never spoke about her.
Ms Taylor noted that Ted Champion was a well-known speaker of the Karlamaya language, and provided wordlists and information to Hale in 1960, and to Douglas in 1965. Ted died on 12 August 1968 at the Kalgoorlie Hospital aged 74.
The lay evidence outlined earlier in these reasons, including the evidence of persons who are now deceased, shows that Ted Champion was regarded as a senior law man for the trial area, along with his brother Jack and Dick Donaldson.
Ted Champion married Elsie Nelson, a Noongar woman. Their children are as follows:

[1280]

As already noted, Tindale recorded Charlie Nowa as the son of Polly and as a brother of Frank Pilanara.
Ms Taylor reported that Charlie Shepherd's native welfare file contains an application for an exemption from the Aborigines Act, prepared by the Protector at Southern Cross which states he had known Charlie for 25 years, and that his mother was a "full-blood" named Mary, and his father was Jack Shepherd. According to this same file, Charlie was born around 1881. Ms Taylor expressed the opinion that the statement concerning the name of Charlie's mother is likely incorrect, having regard to the Tindale data, but that it is likely that the surname Shepherd would have come from Charlie's father. Ms Taylor also expressed the opinion that it is likely that Charlie grew up with the Paddy brothers on the Maddock's homestead given the brother relationship identified by Tindale between Charlie Nowa, Frank Pilanara, Charlie Paddy and Johnny Paddy, their similar birthdates and the fact that Charlie is referred to in parts of his welfare file as Charlie Maddock.
Charlie's native welfare file confirms that he was considered a "full blood" and his wife was Mary Muminga / Diamond who was the sister of Lucy Sambo, and the couple belonged to the Southern Cross area, but also regularly travelled to Coolgardie. His file shows he was also well-known to white station owners Thomas Adams and George Maddock, presumably for working on their respective stations in the Mukinbudin region. In 1948, Charlie was documented on the Southern Cross Reserve with Mary Diamond (his wife). In 1956, Charlie was recognised as a citizen of Southern Cross when applying for an exemption from the Aborigines Act. In 1957, "Charlie Sheperd of Coolgardie" was receiving the aged pension and living in a house in Coolgardie rented by William Sambo (Lucy Sambo's son). As noted earlier, Charlie and Mary adopted and raised William Sambo, which explains why William was caring for him during the last few years of his life in Coolgardie.
Ms Taylor noted that Charlie's tribal identity is not mentioned in his native welfare files. However, Gary Sambo gave evidence that Granny Shep was a Kapurn person.
Charlie's death record shows that he died on 14 April 1961 aged around 79-81 years at Southern Cross Hospital. His usual address at the time was Coolgardie and his place of birth was Warralakin. This record also lists his father as having the surname Sheppard, with all other details being unknown.

[1282]

Polly and her partner Jerap are documented by Tindale in genealogy sheet 119 (recorded at Southern Cross on 7-8 May 1939). Tindale's informant was Polly's son, Tommy Gerald Jones, aged around 55 at the time. Tommy told Tindale that his mother Polly was from "30 m N [miles north] of Southern Cross", which places Polly around the Bullfinch area. Tindale recorded Polly as a "Kala:mai" and estimated that she was born in the period between 1855-1865. He reported that she only had one child (Tommy). Tommy told Tindale that he had "been here [at Southern Cross] a month, previously at Quairading for four years. Now in mother's district". Ms Taylor expressed the opinion, which I accept, that Polly was a Karlamaya Kapurn person.
Tindale wrote that Jerap was from the Jerramungup district in Western Australia which is approximately 300 kilometres south of Southern Cross. Tommy Jones's death and marriage records show his father Jerap was also known as Jimmy Jones and Jimmy Yeerup. Ms Taylor expressed the opinion, which I accept, that Jerap was from Minang Noongar country.
Genealogy sheet 119 records that Tommy Jones was "from Albany" and that he was married to Frances Nimmo and they had two children, Evelyn and Garnet (male). Tindale was told by Tommy that his "wife left him to marry Charlie Paddy". Tommy's death certificate records that he was born in Mount Barker (50 kilometres north-west of Albany), that he died aged 73 in Merredin Hospital, and that Merredin was his usual address and the cemetery he was buried in.
Ms Taylor noted the possibility that the children of Tommy Jones might consider themselves to be Karlamya Kapurn people, following their father's mother. However, Ms Taylor's research of the register of births, deaths and marriages in respect of Evelyn and Garnet failed to identify any marriage registrations or birth certificates for children. When Evelyn died in 1982, her marital status on her death certificate was "single". Based on the available records, Ms Taylor reported that she was not aware of any materials that suggest that Polly has any living descendants.
Frances Nimmo / Paddy / Jones is discussed later in these reasons in the context of the Karratjibbin ancestors.

[1288]

The historical evidence concerning Billy Yambinut, Annie Donald / McIntyre, Julia Penny, Percy Carney and Eva Roundhead was considered by Ms Taylor and Dr Corrigan in their respective reports. In the discussion that follows, I extract relevant information from those reports that pertain to each of the afore-mentioned people, to present the available information as completely as possible.
Before doing so, it is necessary to make three preliminary comments about Dr Corrigan's evidence.
First, the very substantial deficiencies in Dr Corrigan's evidence have been described earlier in these reasons. I explained at that point that I considered Dr Corrigan's opinions should be given no material weight. Despite that, it is appropriate to have regard to any historical evidence identified by Dr Corrigan that may shed light on the questions raised by the Karratjibbin applicant, principally whether Billy Yambinut was the father of Julia Penny and whether he was a Karlamaya Kapurn man.
Second, Dr Corrigan's reports were largely focussed on purported genealogies provided to him by Reg Yarran Jnr. Relevantly, one of the genealogies purports to depict the children of Billy Yambinut and Annie McIntyre as Maggie, Eva (the wife of Tom Roundhead and mother of Don Roundhead), Percy Carney and Julia Penny. Dr Corrigan observed that the genealogies provided by Reg Yarran Jnr appeared to have been based in part on genealogical data compiled by Tindale at Southern Cross in May 1939, but that there were significant discrepancies between the Tindale data and the genealogies. On the genealogy, Billy Yambinut's name is followed by the name "Wilkoin", which is a reference to a man named Billy Wilkoin who is referred to on Tindale genealogy sheet 115 (recorded at Southern Cross on 6 May 1939). A theory advanced by Reg Yarran Jnr was that Billy Yambinut was the man named Billy Wilkoin. That theory was rejected by both Ms Taylor and Dr Corrigan. Dr Corrigan also concluded that the inclusion of Maggie on the genealogy provided by Reg Yarran Jnr involved a misreading of Tindale's genealogy sheet 117 (which shows Maggie as the second wife of John Paddy).
Third, in addressing the question whether Billy Yambinut is an apical ancestor of the Karratjibbin claim group and held native title rights and interests in the Karratjibbin claim area, Dr Corrigan placed reliance on a range of secondary material. For the reasons explained earlier in this judgment, I consider that much of the material relied upon by Dr Corrigan should be disregarded, as the form of the material rendered it inherently unreliable. That material comprised:

[1296]

In her first report, Ms Taylor stated that she had been unable to locate any ethno-historical or archival information concerning Billy Yambinut (specifically, Ms Taylor had found no reference to him in any of the Bates or Tindale data, and no native welfare file or death certificate). However, in her second report, Ms Taylor reported that the State Solicitors Office had provided her with information that "Billy Yambinut @ Yamtinup" is documented in Annie Minchin's native welfare file (Annie Minchin being the same person as Yamin Annie McIntyre) and in a departmental personal history card as being the father of Annie's child Julia. The personal history card is titled "Annie Donald" and records that "Annie is the mother of Julia Penny, 7/8 black, whose father was full blood Billy Yambinut". The card records information from 1934 and 1935 in the Wongan Hills district, which is well to the west of the trial area. The State Solicitors Office also referred Ms Taylor to six historical Police Gazettes that record Billy Yambinut at Youingup in the Kojonup district in 1877 (in the south-west of Western Australia). Having regard to those records, Ms Taylor expressed the opinion that Billy Yambinut was likely to be the biological father of Julia Penny. Ms Taylor observed that the extent to which Billy Yambinut had a relationship with or even knew his daughter is unknown, with all other archival sources referring to Julia Penny's father being John David Penny.
The fact that Billy Yambinut was the biological father of Julia Penny is also recorded in another personal history card headed "Fred Winmar Snr and Family", referred to by Dr Corrigan in his supplementary report. The card records that "Mrs Winmar's parents are Annie Donald (3/4 black) and Billy Yambinut (full blood)". Mrs Winmar is Julia Penny (as, at that time, she was married to Fred Winmar). The card further records that "Fred Winmar lived for many years in the Quairading District with Julia Penny, 7/8 blk, some of their children being ... Beatty (Mrs Norman Yarran)".
On the basis of the above records, it is reasonable to conclude that Billy Yambinut was Julia Penny's biological father. However, the above records do not provide evidence that Billy Yambinut had native title rights and interests in the trial area. Indeed, they indicate that Billy Yambinut lived his life outside of the trial area.

[1299]

Other evidence suggests that the death certificate is inaccurate in some respects and incomplete in others.
First, with respect to Annie's parentage (and as noted above), a personal history card titled "Annie Donald" records that Annie is "3/4 black", her mother being "Millie F. B." and her father being "Tommy Nugenut, H. C.". The card also records that "Annie is the mother of Julia Penny, 7/8 black, whose father was full blood Billy Yambinut".
Second, with respect to Annie's age at the time of death, it is improbable that she was 57 as that would give her a birth year of 1884. The death certificate of her daughter, Julia Penny, indicates that Julia was born in 1893.
Third, with respect to Annie's husbands, the death certificate contains no reference to either Billy Yambinut or John David Penny. As noted above, although Billy Yambinut was the biological father of Annie's daughter Julia Penny, it is possible that Billy and Annie were never regarded as married (under customary law or otherwise). Other documents associated with Julia Penny (referred to below) record her father as John David Penny, although he is not mentioned on Annie's death certificate. The death certificate also refers to "Fred Wombar", which might be a mistaken reference to Fred Winmar (although Fred Winmar was the husband of Annie's daughter Julia Penny, not Annie).
For completeness, it should be noted that Ms Taylor's affidavit dated 23 August 2023 contained extensive research with respect to John David Penny and the Penny family. It is unnecessary to reproduce that research in any detail. However, the research indicates that John David Penny was the son of Charles Beach Penny (born 1806) who arrived in Australia in 1841 and was a whaler of Albany. Charles married an unnamed Aboriginal woman and had three children including a son David Penny (who is recorded on some documents as the father of Julia Penny, but probably an adoptive father). The research indicates that the Penny family were a Noongar family who lived and worked in the Katanning and Gnowangerup areas.
Despite the above inaccuracies in Annie's death certificate, other aspects are significant. First, the death certificate indicates that one of Annie's husbands was Tom Carney and one of her children was named Percy. That supports a finding that the man called Percy Carney was the son of Annie Minchin and Tom Carney, and therefore the half-brother of Julia Penny. Second, the death certificate indicates that another of Annie's husbands was Bob Donald, which explains her surname Annie Donald. It also refutes the speculation of Glenys Yarran, when speaking with Dr Bruce Shaw in 2002, that Annie's true surname was "Donaldson".
At trial, the Karratjibbin applicant did not advance a contention that Annie was a Karlamaya woman, and none of the historical information concerning Annie provides any support for such a finding. Her connections are with the Northam, Gnowangerup and Wongan Hills areas, all outside of the trial area. The historical information also provides no support for any finding that Annie, or any of her husbands, were the parents of Eva Roundhead.

[1300]

Julia Penny's death certificate states that she was born in Gnowangerup in 1893, that her parents were John David Penny and Yammin Annie McIntyre, and that she died in 1952 and was buried at Quairading. Ms Taylor reported that a personal history card for Julia Penny shows a long-term association with the Quairading district, Badjaling Mission and York, but no areas within the trial area. The death certificate for Julia Penny's daughter, Beatrice Winmar, records that she was born in 1908 at Kellerberrin, to the west of the trial area. This indicates that Julia Penny was living in Kellerberrin by 1908. Ms Taylor also referred to evidence that Julia Penny had at least seven other children with Fred Winmar. All the recorded birth places for her children are in or around Quairading (to the west of the trial area in Noongar country).
Two of Julia's children, Frances Nimmo and Beatrice Winmar, are recorded on Tindale's genealogy sheet 117 (recorded at Southern Cross on 6 May 1939). Frances appears to have been Tindale's informant (as a data card was created for her). Tindale noted that Frances's father was Nimmo, a "fb of Gnowangerup district (dead)" and her mother was unnamed but recorded as a "FB of Badjaling". As discussed above, Nimmo was also known as Toby Williams and was the son of Toby. Gnowangerup is 290 kilometres south-west of Burracoppin in Noongar country, and Badjaling is a small Wheatbelt Region town near Quairading and the old site for the Badjaling Mission. The genealogy also records that Frances's unnamed mother had a sister Florrie who was also at Badjaling. Tindale recorded Frances's age as 32, giving her birth year as 1907. Tindale recorded that she was "fb born at Mount Stirling near Quairading". The genealogy recorded that Frances's sister was "Beatie" who was at Badjaling. Tommy Jones is listed as her first husband (divorced) and Charlie Paddy as her second husband. As noted earlier in these reasons, Frances had two living children by Tom: Evelyn and Garnet. Frances's marriage and death certificates list her mother as "unknown" and her father as "William Nemo". Frances provided information to Tindale that there was "no circ. or sub", meaning that no circumcision or subincision (male initiation) was practiced where she came from. Ms Taylor expressed the opinion, which I accept, that Frances Nimmo was a Noongar person and that her connection to the trial area was through her marriages to Tommy Jones and Charlie Paddy.

[1302]

There is no dispute that Eva Roundhead was a Karlamaya Kapurn person. She is recorded on Tindale genealogy sheet 73 (taken at Moore River on 26 April 1939 and Southern Cross on 6 May 1939) and also on sheet 117 (taken at Southern Cross on 6 May 1939) and was an informant to Tindale (as a data card was created for her). She is recorded as "fb Kala:mai of Golden Valley nr Mt Jackson". Eva's son Don Roundhead is also recorded on both sheets. During Tindale's 1966 interview with Don Roundhead and his wife Noona, Don Roundhead told Tindale that Mount Burges, Davyhurst and Broad Arrow were all part of his mother's (Eva's) country.
The contention of the Karratjibbin applicant, that Eva was the sister of Julia Penny (and Don Roundhead was the cousin of Beatrice), is in conflict with the information given to Tindale, apparently by Eva herself, as recorded in genealogy sheet 73. Eva is recorded as the daughter of an unnamed father notated as "fb, Kala:mai, Wilgoin" and an unnamed mother notated as "FB, Kala:mai, Mt Jackson". However, the other children of Eva's parents (Eva's siblings) are recorded on sheet 73 as deceased. The information recorded in genealogy sheet 73 is consistent with the data card (N2149) prepared for Eva and her mother (for which Eva was the informant).
The contention is also in conflict with the information recorded in genealogy sheet 117. Significantly, Don Roundhead and his mother Eva on the one hand, and Frances Nimmo and Beatrice Winmar and their (unnamed) mother on the other hand, are both recorded on Tindale's genealogy sheet 117, but there is no record of any relationship between them. Relevantly, Eva on the one hand and the unnamed mother of Frances and Beatrice (who must be Julia Penny) on the other are shown as having different parents. Further, Eva and Don are clearly identified as "Kala:mai" whereas no tribal identity is recorded for Frances and Beatrice, but they are stated to be "of Badjaling".
It can also be noted that, on her death certificate, Eva's father's surname is recorded as Barrack (and not Yambinut).

[1307]

For reasons given earlier, I do not regard the statements made by Reg Yarran Snr in the interview as reliable. As stated earlier, the interview centred upon one or more genealogies that had been prepared by or on behalf of Glenys Yarran or Reg Yarran Jnr from research conducted of archival material obtained from Adelaide University and the South Australian Museum. The genealogies were not based on oral history. The genealogies being referred to during the interview are not in evidence. However, genealogies prepared for the Karratjibbin application for the purposes of this proceeding, apparently by Reg Yarran Jnr, were considered by Dr Corrigan in his evidence and found to be unreliable in many respects. Some of the statements made by Reg Yarran Snr in the course of the interview appear to have been prompted by what appeared in the unknown genealogies that had been prepared by Reg Yarran Jnr from archival research. Further, as is apparent from the transcript of the interview, much of the information conveyed to Dr Bruce Shaw originated from Glenys Yarran and Reg Yarran Jnr, not from Reg Yarran Snr. The information conveyed by Glenys Yarran and Reg Yarran Jnr appears to have been based on research conducted by them. Some of the information conveyed involved speculation and is contradicted by other evidence.
The historical evidence, referred to earlier, supports the conclusion that Percy Carney was Julia Penney's half-brother. However, as noted above, the historical evidence does not support a conclusion that Percy Carney was Karlamaya Kapurn.
The historical evidence, referred to earlier, contradicts the belief that Don Roundhead was Beatrice's cousin. Given the limitations of the 2002 Shaw interview, I consider that the historical evidence is more reliable.
I consider that Reg Yarran Snr's statement that his mother's country is Karlamaya country can be given no weight. Reg Yarran Snr provided no information to Dr Shaw to explain why he believed that Beatrice's country was Karlamaya country. Reg Yarran Snr acknowledges in the interview that he did not know where his mother was born. Beatrice's death certificate records that she was born in Kellerberrin, outside of the trial area. Further, at the time of the interview, Reg Yarran Snr was a named applicant on the Ballardong claim which, at that time, covered the Karratjibbin claim area. The Ballardong claim was brought on behalf of a claim group who identified themselves as the Ballardong people, a sub-group of Noongar peoples. There is no discussion in the interview of how Reg Yarran Snr reconciled being a named applicant on a claim that identified the area surrounding Southern Cross as Ballardong (Noongar) country and, at the same time, identifying the area as Karlamaya country.
Overall, I do not place any weight on the statements made by Reg Yarran Snr in the interview.

[1308]

As already noted, I found Reg Yarran Jnr to be an unsatisfactory and unreliable witness. Relevantly for present purposes, his evidence concerning the Karratjibbin apical ancestors was inconsistent and, at times, incoherent.
In his statement dated 7 August 2023, Reg Yarran Jnr initially stated: "I claim my Karratjibbin heritage through my apical ancestors Eva and her son Toby". The "Eva" being referred to in the statement is not Eva Roundhead, the mother of Don Roundhead. The "Eva" being referred to is identified in the statement as the mother of Toby Williams (Nimmo) who was the husband of Julia Penny. Thus, in his primary statement adduced in evidence, Reg Yarran Jnr claimed his "Karratjibbin heritage" through Nimmo (Toby Williams), and not through Julia Penny. At the conclusion of the trial, the Karratjibbin applicant conceded that they had not adduced evidence establishing that Nimmo was a Karlamaya Kapurn man.
Later in the same statement, Reg Yarran Jnr stated: "Our 2 main ancestors are Polly and Billy Yambinut". However, nothing more is said about Polly or Billy Yambinut in that statement. In his statement dated 6 September 2023, Reg Yarran Jnr stated that Billy Yambinut is part of the country at "Karratjibbin Hill" and that, when he goes to the waterhole at Karratjibbin Hill, Reg Yarran Jnr calls his ancestors to let them know he is there, and that he calls Billy's name first.
It is difficult to reconcile that statement with Reg Yarran Jnr's first statement in which he stated that he claims his Karratjibbin heritage through Nimmo. Reg Yarran Jnr did not explain that inconsistency, or say anything more about Billy Yambinut.
During cross-examination, Reg Yarran Jnr was asked about the original Ballardong claim which extended over the Karratjibbin claim area. It was put to Reg Yarran Jnr that the Ballardong claim did not refer to Karratjibbin people. Reg Yarran Jnr refused to answer the question directly, but the following exchange occurred with respect to the Ballardong claim:

[1324]

Some of the information discussed in this section has been referred to in the earlier section of these reasons that considered Tindale's Maduwongga thesis. Nevertheless, it is appropriate to repeat it so that a complete survey of the evidence concerning Aneida / Nada Bilbear and her son Thomas is conducted.
Aneida was documented by Tindale on genealogy sheet 147 recorded at Mount Margaret on 13 May 1939. Tindale's informant would appear to be Aneida's son, Thomas Cooper, as a data card (number 2190) was prepared in respect of Thomas. The notations next to Aneida's name are "fb of Kalgoorlie WA" and, beneath that, "of original tribe at Kalgoorlie". Tindale recorded Aneida's former partner as Arthur Hasthorpe, a "white" man, who was the father of Thomas Henry Cooper. Aneida's current partner was recorded as an unidentified Aboriginal "fb" (no further details provided) with whom Aneida had two children (both dead). Thomas Henry Cooper was recorded by Tindale as F1 (one Aboriginal and one non-Aboriginal parent), 43 years old (giving a birth year of 1896) and born in Kanowna. Tindale recorded that Thomas was married to Trilby Ashwin, who was also notated as F1 and "the perfect mother". The coincidence of the annotation that appears after Aneida's name ("of the original tribe of Kalgoorlie") and after Trilby's name ("the perfect mother") suggest that both phrases came from Thomas Cooper. Trilby's parents were shown on the genealogy as Telpha, a "fb of Darlot", and a "white" man called Ashwin. A later notation on the genealogy (apparently after Tindale had interviewed Trilby, with Trilby's data card number being 2313) records that Trilby was then 35 years old (giving a year of birth of 1904), from Darda Station north-west of Mount Margaret in the Darlot district. The genealogy shows that Thomas Cooper and Trilby Ashwin had six children: Vera (born 1923), Lorna (born 1925), Tommy (who had died), Lena (born 1928), Bessie (born 1930) and Norman (born 1932). Each name is accompanied by the notation "F2" (Tindale's notation to record that both of the persons parents were "F1").
On Thomas Cooper's data card, no tribal identity is recorded (with either the word 'Madjuwongga' or 'Mandjindja' heavily crossed out). His mother, Aneida, is recorded only as "fb of Kalgoorlie". The data card records that he only speaks English. A separate data card was created for Aneida and records her tribal identity as 'Maduwongga' with an estimated date of birth from 1875-1880 and place of birth given as Kalgoorlie. It is relevant to note that Kalgoorlie did not exist as at the date of Aneida's birth and therefore the reference to Kalgoorlie must be taken to be a reference to the Kalgoorlie area (but without any specification of the size of that area). Having regard to the genealogy sheet and Thomas Cooper's data card, I infer that Thomas did not know his mother's tribal identity and was therefore unable to provide that information to Tindale. I also infer that Tindale recorded Aneida as being Maduwongga on the basis that Thomas said that she was from the "original tribe of Kalgoorlie", conforming to Tindale's Maduwongga supposition discussed earlier in these reasons.
On Trilby Ashwin's data card, Trilby's tribal identity is given as Pini. On Vera Cooper's data card, Vera's tribal identity is given as Pini and Maduwongga. Ms Taylor expressed the opinion, which I accept, that it is likely that Tindale ascribed the 'Maduwongga' tribal identity to Thomas Cooper, consistently with the tribal identity that Tindale ascribed to his mother Aneida. The same tribal identities appear on Lorna Cooper's data card.
The name 'Nada Bilbear' is recorded as the name of Thomas Cooper's mother on documents in his native welfare files, discussed below, including Thomas's application for a certificate of exemption from the Aborigines Act in 1923 (made by Thomas shortly after his marriage to Trilby Aswin). There was no dispute between the parties that Aneida and Nada Bilbear are the same person and, in this section of the reasons, I use the name most relevant to the material being considered (or both names).
There are no welfare or death records available for Aneida / Nada Bilbear.
As observed by Ms Taylor, Tindale's genealogy shows no familial relationships associated with Aneida: no mother or father, brothers or sisters. This suggests that Tindale's informant, Thomas Cooper, had no knowledge of Aneida's familial relationships. As discussed below, this may be because Thomas was raised by Arthur Hasthorpe's sister, Jessie, and her husband George Astley Cooper.
There is no historical information concerning the location in which Aneida met and became pregnant to Arthur Hasthorpe. However, as discussed below, Arthur Hasthorpe came to the area around Gindalbie (63 kilometres north-east of Kalgoorlie, and outside of the trial area) in about 1895, and lived and worked in that area. Thomas Cooper was born around Kanowna on the eastern boundary of the trial area (on a date between 1896 and 1898).
Mr Wood expressed the opinion that the form of Aneida's name (as recorded by Tindale from interviewing Aneida's son Thomas) suggests that Aneida was of Western Desert extraction. Of the languages within a wide radius of Kalgoorlie, the only ones in which words begin with the vowel /a/ is Western Desert language, all dialects of which are replete with such words. Of the south-east languages, von Brandenstein (1980) has a small number of i-initial and u-initial words. The Kaalamaya Dictionary (Draft, Hanson, 2019) has a single place name which the compiler, Sue Hanson, interprets as having an initial /a/; otherwise Karlamaya has no words beginning with any vowel. Mr Wood considers that the name Aneida as likely to be phonemically Anayita or Anayirta, and that the length of the medial syllables is why the first vowel /a/ sounded like a 'schwa' to Tindale. Mr Wood considers that the form 'Nada' that appears on Thomas's native welfare records is most likely a misheard version of the same name by a mission or European official.

[1326]

Dr Powell notes that different years of birth are recorded on different documents relating to Thomas Cooper. On his World War I enlistment papers, dated 1915, his age is given as 21, indicating a birth year of 1894. However, when he married Trilby Ashwin in 1923, his age was recorded as 25 years, which indicates a birth year of 1898. On his World War II Mobilisation Attestation Form, his year of birth is recorded as 1897.
Dr Powell also noted that different birth locations are recorded on different documents (albeit that the locations are proximate to each other). Thomas's birthplace is recorded as Gindalbie in his World War I War Service Abroad Record and as Gindalbie Station in "Personal Items" in the Kalgoorlie Miner published 24 October 1917 (with the same newspaper report giving his age as 22). Thomas's birthplace is recorded on his World War II Mobilisation Attestation Form as Kanowna. Dr Powell observed that Thomas's two recorded birthplaces, Kanowna (once known as White Feather) and Gindalbie may refer to townships (now ghost towns) which were about 25 to 27 kilometres apart, Gindalbie being east of Kanowna and not in the trial area. Gindalbie was originally named Hayes' New Find, then Vosperton and finally Gindalbie and is the place where George Cooper had a store, butcher's shop and hotel. Dr Powell notes that it is possible that Thomas's Gindalbie birthplace could refer to the pastoral holding Gindalbie, which at the time was owned by George Cooper.
Newspaper reports from 1913 and 1915 confirm that Thomas grew up on Gindalbie Station, the pastoral holding of George Astley Cooper (who was Arthur Hasthorpe's brother-in-law). An article titled "The Escaped Aboriginal" published in the Kalgoorlie Miner on 22 November 1913 refers to Thomas as Tommy Limpet or Cooper, who had been taken to the police by his employer Mr Cooper of Vosperton (the former name of Gindalbie) after escaping from the Kalgoorlie lockup. Two years later, another newspaper item in the Sunday Times in Perth mentions Thomas as a recruit for World War I and stated: "He has been brought up from childhood by Mr Cooper of Gindalbie Station, and is particularly well suited to play an important part as a soldier". Thomas's World War I service record names "Mr G. A. Cooper of Gindalbie Station" as his next of kin. George Astley Cooper died in Kalgoorlie in 1934.
Thomas married Trilby Ashwin, the daughter of Telpha Ashwin, on 29 March 1923.
Ms Taylor reported that Thomas Cooper's native welfare file, marriage and death records contain the following biographical information:

[1327]

(a) In 1923, Thomas was in Lake Darlot (420 kilometres north of Kalgoorlie) applying for an exemption to the Aborigines Act. He had just been married to Trilby Ashwin at Leonora and they already had one child. He was working for Trilby's father, Arthur C Ashwin, the white station owner of Lake Darlot and also Yelma Station.

(b) In 1928, Thomas and Trilby were at Yelma Station (530 kilometres north of Kalgoorlie) with Trilby's family. In an application for an exemption under the Aborigines Act for Trilby, the local inspector said of the family that they should be regarded as white; they "have nothing to do with Aborigines"; they "know nothing of native camp life or native dialects" and Trilby's own mother is not allowed in their house.

(c) In 1931, when Arthur Ashwin died, Thomas took over the running of the station and Thomas and Trilby's three girls Vera (aged 9), Lorna (aged 7), and Lena (aged 3) were at Mount Margaret Mission without their parents.

(d) In 1933, a report said Thomas had taken the girls for Christmas holidays and not returned them: "Cooper and his wife and children have an old car from the Ashwin estate and journey around Murrin Murrin, Malcolm and Leonora".

(e) In 1934, the family were destitute in Laverton. Thomas had spent the three years prior unsuccessfully prospecting around Leonora. He was arrested for sheep stealing and spent six months in jail, whilst Trilby and the children went to Mount Margaret Mission. When he got out of jail, he provided information to a local policeman that "he didn't want his children 'becoming natives' at Morgan's [Mount Margaret Mission]", which he saw as a place for "full blood" Aboriginal people, and that his headquarters were in Leonora.

(f) In 1936, Tommy Cooper Jnr (aged 10) died after becoming sick after prospecting with his father 20 kilometres south-west of Laverton and drinking water from an old shaft. Thomas was by this stage living at Mount Margaret Mission and struggling with an illness or injury which required an operation and meant he could not work.

(g) Between 1937 and 1943, Thomas lived at Mount Margaret Mission. A letter written by Thomas said that he had "lived at the mission for 10 years" and asked where he would end up if the "Department" (presumably the then Department of Native Affairs) compelled him to leave the mission. Thomas was being threatened with his exemption being revoked due to living on an Aboriginal mission. He also noted the family enjoyed going to church and he thought it was the best place for his children to be, without any of the vices of the townships.

(h) Between 1944 and 1945, the family moved to Leonora or Gwalia.

(i) In 1947, Thomas's daughters Bessie and Lena were in Kalgoorlie staying with the Tucker family when they ran into trouble and asked for police help in returning to their parents at Malcolm (near Leonora).

(j) In 1951, Trilby was living with Archie Tucker in Kalgoorlie but was just about to start a job at Yundamindera Station (180 kilometres north of Kalgoorlie). Thomas was working away from Kalgoorlie (unspecified location), but later that year passed away in Boulder aged 54.

(k) Trilby died in 1986 aged 84 in Kalgoorlie.

[1330]

As noted earlier in these reasons, Dr Powell reported that, during her 1997-2000 fieldwork in the Eastern Goldfields, she interviewed several descendants of Thomas Henry Cooper in order to compile from them information from their own oral tradition and private records about Thomas and his mother and how they may be related to other families in the Eastern Goldfields. These interviews commenced in November 1998. The people interviewed by Dr Powell included the following descendants of Thomas: June Abdullah (the daughter of Thomas's daughter Lorna); Susan Wyatt (the daughter of Thomas's son Norman Cooper Snr and Betty Lowah); Betty Lowah (Norman Cooper Snr's wife); Milton Cooper (the son of Norman Cooper Snr and Betty Lowah); Victor Cooper (also the son of Norman Cooper Snr and Betty Lowah, and one of the Cooper respondents); and Charmaine Cooper (the daughter of Thomas's daughter Bessie).
Dr Powell gave evidence that none of the descendants whom she interviewed had personal knowledge of Thomas Cooper and they admitted that they knew little about him. The descendants knew that he was raised by George Astley Cooper and his wife Jessie Cooper (née Hasthorpe) on Gindalbie Station as a member of their family; that he had enlisted in World War I; that he married Trilby Ashwin and then worked as a stockman, miner, and for the Mount Margaret Mission before moving to Kalgoorlie where he died from a heart attack. His descendants recalled that he separated from his wife (Trilby) and children when they were quite young. They recalled that sometime after his death, Trilby re-partnered with a non-Aboriginal man named George Cooper, whom they knew as "Uncle George". Dr Powell surmises that this man was likely the son of George and Jessie Cooper (who raised Thomas Henry Cooper).
Based on the interviews conducted during her 1997-2000 research, Dr Powell concluded that at the time that the Central West Goldfields claim was filed in 1998, the descendants of Thomas Cooper had no knowledge of his mother.

[1332]

Each of the Cooper respondents, Gary Cooper, Maria Bandry, Victor Cooper and Norman Cooper Jnr gave evidence at the trial and their evidence has been discussed in some detail earlier in these reasons. Their father is Norman Cooper, who was the youngest child of Thomas Cooper and Trilby Ashwin.
As stated earlier, I accept that the Cooper respondents believe that they hold rights and interests in the eastern part of the trial area under traditional laws and customs, but I consider that that belief is not supported by the evidence. The Cooper respondents do not contend that their ancestor, Nada Bilbear, was a Karlamaya Kapurn person, and the Cooper respondents do not claim to be Karlamaya Kapurn people. They are Wongai and speak the Wongatha language.
Although Gary Cooper is the youngest of the Cooper respondents, he took a lead role in giving evidence in support of the claims being made by the Cooper respondents. In the main, I considered Gary Cooper to be a sincere witness who sought to give truthful evidence. However, there were certain aspects of his evidence where I considered that his evidence was not credible, and I considered that on occasions he was willing to exaggerate or imagine facts to be true when there was no real foundation for a belief that the facts were true. Similarly, in the main I considered Maria Bandry to be a sincere witness, but there were certain aspects of Maria Bandry's evidence which were not credible, and I considered that on occasions she was willing to engage in conjecture when there was no real foundation for a belief that the facts were true. I considered each of Norman Cooper Jnr and Victor Cooper to be sincere witnesses who sought to give truthful evidence, but there were certain aspects of their evidence that I do not accept because the evidence is contrary to the weight of evidence overall.
The evidence given by the Cooper respondents with respect to Nada Bilbear and her son Thomas Cooper does not add materially to the available historical evidence and it is unnecessary to repeat the evidence which is discussed earlier in these reasons. However, it is relevant to refer to one aspect of their evidence which I concluded was not credible.
Each of Gary Cooper, Victor Cooper and Norman Cooper Jnr stated in their witness statements that they are a member of the "Bilberri" tribe by descent from Nada Bilbear. Gary Cooper stated that he "heard of Bilberri a long time ago", and that he was taught that Nada was from the Bilberri tribe when he was growing up. In their witness statements, neither Victor Cooper nor Norman Cooper Jnr stated that they were told about the Bilberri tribe by their father. However, during cross-examination, Norman Cooper Jnr stated that the name "Bilberri" was "around years ago when we were younger" and that he started telling people that he was a member of the "Bilberri" tribe about 30 years ago.
Maria Bandry amended her witness statement to state that she is a member of the "Bilbearding" tribe by descent from Nada Bilbear. Contradicting her siblings, Maria stated that "all we knew of growing up was that our great grandmother was from the Bilbearding tribe".
For the reasons given earlier when discussing the evidence of the Cooper respondents, I reject the evidence of the Cooper respondents with respect to the asserted tribal names "Bilberri" and "Bilbearding". I have concluded that their identification of Nada Bilbear as a member of the "Bilberri" or "Bilbearding" tribes is a recent invention of the Cooper respondents, based upon the second name given to Nada in certain documentary records (Bilbear), in an attempt to bolster the plausibility of the Cooper respondents' claim to hold native title rights and interests in the eastern part of the trial area.

[1333]

As stated earlier, there is no dispute that the Cooper respondents are descended from Nada Bilbear. The Cooper respondents' father, Norman Cooper, was the son of Thomas Henry Cooper who was the son of Nada Bilbear. The dispute concerns the question whether Nada Bilbear held rights and interests in the eastern part of the trial area under traditional laws and customs, and whether the Cooper respondents hold rights and interests through descent.
Taking the evidence as a whole, I am not persuaded that the evidence establishes that Nada Bilbear held rights and interests in the eastern part of the trial area under traditional laws and customs. There is insufficient evidence about Nada to know where she originated from, which group of Aboriginal people she belonged to and where she held rights and interests. Nada's son, Thomas Cooper, spent most of his life outside of the trial area and only returned to Kalgoorlie late in his life. The historical evidence indicates that he did not speak an Aboriginal language and, when he was interviewed by Tindale in 1939, he was unable to provide any information about his mother's tribal identity or language.
In 1939, Tindale ascribed a Maduwonnga tribal identity to Nada. I infer that he did so because Thomas Cooper told Tindale that Nada was "of the original tribe of Kalgoorlie" and, at that time, Tindale had developed a supposition that Aboriginal people in and around Kalgoorlie were Maduwonnga. I have earlier concluded that the Maduwonnga supposition to be incorrect. As to Thomas Cooper's statement that Nada was "of the original tribe of Kalgoorlie", I consider that piece of evidence to provide an insufficient basis to conclude that Nada held traditional rights and interests in the eastern part of the trial area. That is particularly so because the Cooper respondents reject any suggestion that Nada was a Karlamaya Kapurn person. As Mr Wood observed in his report, the context in which that statement was made, and the meaning it was intended to convey, involve considerable speculation.
It follows that I reject the contentions advanced by the Cooper respondents in their concise statement.

[1339]

As described by Ms Taylor in her report, and referred to earlier in these reasons, parties of explorers began accessing the trial area and the wider Goldfields region from 1836 which, in many cases, involved the first known contact between Aboriginal groups and Europeans. Throughout the mid-1800s, there were a number of exploration parties through the trial area. However, regular and sustained contact between European settlers and Aboriginal people did not occur in the trial area until the Goldrush beginning in the late 1880s and early 1890s.
The Goldrush began with the discovery of gold in Golden Valley, near Lake Deborah, southeast of present-day Bullfinch, in 1887. Southern Cross was the site of the first town, with gold being discovered there in 1888. The Goldrush extended east and by 1892 gold was discovered in Coolgardie which brought an influx of Europeans to the area, with the population totalling approximately 300 when the town was gazetted in 1893. The population of Coolgardie grew exponentially, to 6,000 in 1895 and 15,000 in 1898, making Coolgardie the third largest town in Western Australian. Following the discovery of alluvial gold at the base of Mount Charlotte (near present day Kalgoorlie) in 1893, there was a rapid population and capital infrastructure increase in and around Kalgoorlie, with the town being gazetted in 1894. At the time of gazettal, the European population was between 1,400 and 1,600, which boomed to 12,000 by 1903. The Goldrush continued to spread across the trial area with Boorabbin gazetted as a town in 1898. Towns outside the trial area were also established around the same time (Menzies in 1894, Leonora in 1895, Laverton in 1896 and Mount Margaret in 1897).
The impacts experienced by Aboriginal people during and after the Goldrush were extensive and included famine, frontier violence, disease, dispossession of waterholes and hunting territory and, later, the removal of children to State or Church care. Ms Taylor cited a 1902 report of Travelling Inspector G S Olivey concerning the Eastern Goldfields. The passage has been reproduced earlier in these reasons, but warrants repetition in the present context:

[1341]

The lay and ethno-historical evidence adduced in this proceeding describes and illustrates the rapid and overwhelming effects that European settlement of the trial area had on the Karlamaya Kapurn people.
First, many Karlamaya Kapurn people adapted to the new economic order by obtaining employment in the pastoral industry as shearers and labourers. While Karlamaya Kapurn people continued to hunt native animals and gather traditional foods and other resources, they could no longer occupy (in the sense of controlling) their traditional estates. They began to live on pastoral stations where they obtained work and food. Over time, Karlamaya Kapurn people began to congregate in communities that were formally or informally recognised as Aboriginal 'reserves'. The most significant 'reserves' were in Southern Cross and Coolgardie. The Karlamaya Kapurn people built shelters from spare materials that were available to them.
Second, many Karlamaya Kapurn women had children with European fathers, and the children were adopted and raised by Karlamaya Kapurn men who married or partnered the Karlamaya Kapurn women. The children were accepted as members of the Karlamaya Kapurn community. The frequency of this occurrence is illustrated by the Tindale genealogies recorded in and around the trial area in 1939. It was also the case that European settlement brought about increased movement of Aboriginal men from their own traditional country to the traditional country of others, including into Karlamaya Kapurn country. The Aboriginal men fathered children with Karlamaya Kapurn women in Karlamaya Kapurn country, and the children were raised by the mothers in that country and were accepted as members of the Karlamaya Kapurn community.
Third, some Karlamaya Kapurn children were removed from their parents and taken to State or Church missions for some or all of their school years. Some of the children also left the missions, or escaped being taken. Brian Champion Snr's personal story is particularly poignant. When he was about 9 or 10 years old, Brian Champion Snr was taken away to the Churches of Christ Aboriginal Mission near Norseman, together with his brother Ben and his sister Gertie. Brian left the mission when he was about 14 years old, when he was taken to Merredin by a couple of teachers. Brian said that he saw some "natives" come out of the picture theatre who were from Norseman and he asked them where his parents were. Brian may have chosen to use the word "native" in that context to illustrate the effects of his mission education. In any event, Brian was reunited with his parents, aunts and uncles, and folded into the Karlamaya Kapurn community. Indeed, he was hidden from the police and "the welfare" by being sent to live with his father's cousin, Charlie Paddy (Uncle Noodi), who lived in a bush camp with his partner Frances Nimmo.
As discussed by Mr Wood in his report, the effects of European settlement of the trial area forced the Karlamaya Kapurn people to adapt their traditional laws and customs to the new social and legal order. Two significant adaptations occurred:

[1346]

Mr Wood observed that the cognatic shift preserves the descent principle by excluding any basis for acquiring rights in the trial area other than unbroken Karlamaya Kapurn descent, commonly referred to by the Marlinyu Ghoorlie claimants as 'Kapurn blood' or just 'bloodline.' Criteria such as long-term residence on Karlamaya Kapurn country or knowledge of Dreaming sites within it are relevant to status distinctions within the community, but do not provide rights in the trial area by others who do not have Karlamaya Kapurn antecedents on either their father's or mother's side.
Mr Wood noted that the shift from a patrilineal to cognatic descent rule for acquiring rights and interests in country is evident in the Tindale genealogies recorded in 1939. On genealogy sheet 116 (recorded in Southern Cross on 6 May 1939), Tindale noted that Jack Champion, whose father (Jim Champion) was an Ingada man from Shark Bay and whose mother (Nellie Champion) was a Karlamaya woman, would have the section name "Karimara" were he to follow his father, but that he is "following mother" and "there is no 4 class among Kala:mai people". In other words, by 1939, members of the Champion family were following their mother's Karlamaya Kapurn laws and customs.
All of the lay witnesses who gave evidence on behalf of the Marlinyu Ghoorlie applicant and Elizabeth Sambo recognise that a person acquires rights and interests in the trial area (as Karlamaya Kapurn country) by descent, whether biological or by adoption, from a Karlamaya Kapurn forebear, whether the forebear is male or female. Relevantly, three of the four apical ancestors of the Karlamaya Kapurn community are women: Kaddee, Kajjaman (Nellie Champion) and Lucy Sambo (although King Billy is the son of Kaddee and Warada, and therefore also had a male Karlamaya Kapurn ancestor). Kaddee's year of birth is estimated as 1840, well before effective sovereignty. Nellie Champion's date of birth is estimated between 1870 and 1880, also before effective sovereignty. Lucy Sambo's date of birth is estimated as 1894, around the time of effective sovereignty.
Although every case turns on its own facts, the Court has previously recognised that a law and custom, by which the acquisition of rights and interests in country are inherited from a person's mother or father (a cognatic descent rule) may continue to be recognised as traditional within the meaning of the NTA, notwithstanding that the law and custom involves a change from a patrilineal descent rule in existence prior to European settlement: see for example Griffiths v Northern Territory (2006) 165 FCR 300 at [501] (upheld on appeal in Griffiths v Northern Territory of Australia (2007) 165 FCR 391 at [141]); Bennell v State of Western Australia (2006) 153 FCR 120 at [777] (upheld on appeal in Bodney at [116]); and Blucher on behalf of the Gaangalu Nation People v State of Queensland [2025] FCAFC 177 (Gaangalu) at [136]-[137].
In my view, the change to a cognatic descent rule for the acquisition of rights and interests in country was a necessary adaptation to the traditional laws and customs of the Karlamaya Kapurn people, brought about by the effects of European colonisation. The effects included the birth of numerous children fathered by men from the European settler community or distant Aboriginal groups, and these children then being admitted to the group of the mother. The change did not alter the fundamental principles that underpin the descent rule. As Mr Wood observed, the descent rule is founded upon a spiritual connection to the country, through the spirits of the ancestral dead - the "old people" - resident in the country. Further, the change did not alter the fundamental conception of rights and interests in country, which are both communal in nature and inalienable. I consider that the cognatic descent rule for the acquisition of rights and interests in country, which is now acknowledged and observed by Karlamaya Kapurn people, is a traditional law and custom of the Karlamaya Kapurn people.

[1352]

All of the lay witnesses who gave evidence on behalf of the Marlinyu Ghoorlie applicant, and Elizabeth Sambo, expressed the belief that, as Karlamaya Kapurn people, they hold rights and interests in the trial area and have the right to speak for that country. It is clear that knowledge of traditional patriclan estates has been lost over time and has been subsumed within the broader "country level" rights held by Karlamaya Kapurn people.
In my view, the law and custom acknowledged and observed by Karlamaya Kapurn people today, that all Karlamaya Kapurn people hold rights and interests in the trial area and have the right to speak for that country, is a traditional law and custom of the Karlamaya Kapurn people. It can be accepted that knowledge and recognition of the boundaries of patriclan estates has been lost since European settlement. That has been brought about by the dramatic changes imposed upon the Karlamaya Kapurn people under a new legal and economic order. Notwithstanding that loss of knowledge and recognition, Karlamaya Kapurn people have continued to acknowledge and assert their rights in, and responsibilities for, the trial area as Karlamaya Kapurn country. I consider that the continued acknowledgment and assertion of rights in and responsibilities for the trial area as Karlamaya Kapurn country is a law and custom of the Karlamaya Kapurn people that is traditional within the meaning of the NTA.
The conclusion that I have reached on this question is consistent with the conclusion recently expressed by the Full Court in Gaangalu at [168]. As the Full Court emphasised (at [151], [164]-[166]), the relevant inquiry is whether the laws and customs that are acknowledged and observed today (the possession of communal rights and interests in the Karlamaya Kapurn country as a whole) find their origin in pre-sovereignty laws and customs; the relevant analysis may miscarry if there is an undue focus on what has changed or been lost (the loss of knowledge and recognition of the boundaries of patriclan estates).

[1354]

European settlement of the trial area brought about other changes to the acknowledgment and observance of the traditional laws and customs of Karlamaya Kapurn people.
One of the changes to the traditional laws and customs was deliberate. At some point in the first half of the 20th century (the date is uncertain but estimated between about 1930 and 1950), Karlamaya Kapurn people chose to cease the practice of male initiation ceremonies involving circumcision. Several of the witnesses who gave evidence in the proceeding (including Brian Champion Snr, Ricky Dimer, Maxine Dimer, Elizabeth Sambo and Trevor Donaldson) stated that senior elders Ted Champion and Dick Donaldson made the deliberate decision to end the customary practice. Several reasons were given for the decision. One significant reason appears to be that the customary practice, which involved lengthy travel to ceremonial sites, had become incompatible with the demands of the new economic order following European settlement. Dr Powell reported that she was told by Clem Donaldson: "the Law thing - takes two or three weeks ... and to walk to it takes six weeks - just could not do Law and hold a job". Another significant reason appears to have been the demands of the new social order following European settlement. Trevor Donaldson said that: "... the white man's law at the time forbade the teaching of culture. We were forbidden to talk language. If we were caught, we would be forcibly removed and put in missions.". Witnesses emphasised, however, that the cessation of male initiation ceremonies did not end the practice of teaching young men about Karlamaya Kapurn country and culture. For example, Maxine Dimer said that while Dick Donaldson stopped putting boys "through the law", he continued to pass on knowledge of country, including hunting knowledge, by spending time in the bush with young men. Trevor Donaldson said that he has obligations to pass his knowledge on to his children and grandchildren: "We go out bush, go camping, and I share the stories and the knowledge with them".
Other changes to the acknowledgment and observance of traditional laws and customs likely occurred without conscious decisions being made. In particular, the lay evidence indicates that the role of totems in Karlamaya Kapurn laws and customs has diminished substantially from the time of effective sovereignty. While some witnesses (in particular, Brian Champion Snr) have retained knowledge of the generation moieties (Beerungoomat and Jooamat) and associated totems (the kingfisher and rainbow bee-eater birds), the evidence indicates that the generation moieties no longer have any function in marriage rules. Further, just as the traditional patriclan estates no longer function and have been lost to memory, so too the associated site totems no longer function and have been lost to memory. Despite those changes, a number of witnesses spoke of their personal totems. For example, Brian Champion Snr said that a totem for the Karlamaya Kapurn people is the echidna (jilkamarta) and the kurrajong tree (ngarrka), that his own totems are the kingfisher (beeroongamat) and the kurrajong tree (ngarrka), which he has a responsibility to look after; Maxine Dimer said that the finch is her totem; Malcolm Champion said that his totems are the porcupine (tjilkamarta), the emu (kalaya), and the goanna (perente), and that the emu totem is the most important in Karlamaya Kapurn culture and society; Brian Champion Jnr said that his totem is the kingfisher, and that other totems for the Karlamaya Kapurn people are the echidna (jilkamarta) and the karrajong tree; Mark Champion said that one of the main totems for the Karlamaya Kapurn people is the kurrajong tree (ngarrka), and that his other totems include the kingfisher and the rainbow bee-eater; Trevor Donaldson said that his "old people" gave him his totem, the tawny faced owl (ngoor-ngoor).

[1363]

The evidence given by members of the Karlamaya Kapurn community demonstrates a substantial degree of unity with respect to their identity as Karlamaya Kapurn people and the membership of the Karlamaya Kapurn community. All of the Karlamaya Kapurn witnesses agree that Kaddee, Warada and Lucy Sambo were Karlamaya Kapurn, and their descendants (whether biological or by adoption) are also Karlamaya Kapurn. All of the Karlamaya Kapurn witnesses called by the Marlinyu Ghoorlie applicant agree that Nellie Champion was Karlamaya Kapurn and her descendants (whether biological or by adoption) are also Karlamaya Kapurn.
Elizabeth Sambo originally contested the conclusion that Nellie Champion was Karlamaya Kapurn. However, by the time of trial she agreed with that conclusion and recognised that her mother, Linda Champion, was Karlamaya Kapurn by descent from Nellie Champion. Davina Sambo likewise changed her mind, primarily following her sister, Elizabeth. Similarly, while Trevor Donaldson originally contested the conclusion that Nellie Champion was Karlamaya Kapurn, his views as expressed in oral testimony were far more cautious, and he accepted that it is possible that the Champion family is connected to the Coolgardie / Kalgoorlie area in addition to the Southern Cross area. The only witness who maintained the belief that the Champion family were not Karlamaya Kapurn people was Gary Sambo who gave evidence at the preservation evidence hearing and died in 2024. A difference of opinion expressed by one individual member of the community does not undermine the substantial unity of belief of the community as a whole.
There are a large number of descendants of Kaddee and Warada, Lucy Sambo and Kajjaman (Nellie Champion). The generations beneath those apical ancestors have been described earlier in these reasons. The identified descendants of Kaddee and Warada begin with their son Nyuumani, known as King Billy, and his biological or adopted children: Tom Roundhead (father of Don Roundhead), Frank Roundhead, Elizabeth Wilson, Johnny Wilson and Alice Wilson / Minjin. Alice married Dick Donaldson, and their children are prominent Karlamaya Kapurn families. The identified descendants of Lucy Sambo begin with her six children (from her marriage to Cordi Sambo), Willie, William, Arthur, Rita, Cadley and Bert, who were born in the early part of the 20th century. Each have descendants and they are also prominent Karlamaya Kapurn families. The identified descendants of Kajjaman (Nellie Champion) begin with her two sons (from her marriage to Jim Champion), Ted and Jack Champion. Both were born around the beginning of the 20th century. Each had many children who are also prominent Karlamaya Kapurn families.
The evidence also shows that there is no unity of identity, as Karlamaya Kapurn people, between the Marlinyu Ghoorlie claim group and either of the Karratjibbin claim group or the Cooper respondents. The Marlinyu Ghoorlie claim group do not recognise any of the Karratjibbin claim group apical ancestors as Karlamaya Kapurn people, including Billy Yambinut, and the witnesses who gave evidence on behalf of the Karratjibbin claim group do not consider themselves to be Karlamaya Kapurn people. Similarly, in respect of the Cooper respondents, the Marlinyu Ghoorlie claim group do not recognise Nada Bilbear as Karlamaya Kapurn, and the Cooper respondents do not consider themselves to be Karlamaya Kapurn people.

[1367]

The Karlamaya Kapurn community today recognises that rights in and responsibilities for the land and waters of the trial area (as Karlamaya Kapurn country) are inherited through descent from Karlamaya Kapurn forebears. All of the Karlamaya Kapurn witnesses believe that they hold rights and interests in the trial area because they are a descendant of a Karlamaya Kapurn person who held rights and interests in the trial area. All of the Karlamaya Kapurn witnesses believe that others hold rights and interests in the trial area if they are a descendant of a Karlamaya Kapurn person who held rights and interests in that area. As observed by Mr Wood, this belief is of ancient in situ provenance in the traditions of the Karlamaya Kapurn people. The evidence shows that this belief has a spiritual dimension: a belief that the spirits of ancestors are present on Karlamaya Kapurn country. Many of the witnesses, including Brian Champion Snr, Maxine Dimer, Elizabeth Sambo and Brian Champion Jnr, spoke about the need, when visiting a site on country, to introduce themselves to the ancestral spirits in order to remain safe.
The Karlamaya Kapurn community today recognises that rights in and responsibilities for country are acquired both by biological descent from a Karlamaya Kapurn forebear and by adoption by a Karlamaya Kapurn forebear. The earliest available information concerning the Karlamaya Kapurn people indicates that the custom of adoption of children, and the concomitant inheritance of rights and interests in Karlamaya Kapurn country, was part of their traditional laws and customs. The custom has continued unaltered in the 20th century, as shown by the Tindale genealogies, and continues to be recognised by the Karlamaya Kapurn community today. A number of the Karlamaya Kapurn witnesses gave evidence recognising the inheritance of rights and interests through adoption by a Karlamaya Kapurn family, including Brian Champion Snr, Mark Champion and Darryl Trott. Ricky Dimer and Maxine Dimer are Karlamaya Kapurn by descent from Alice Minjin whose biological father was a white man but whose adoptive father was King Billy (whose parents were Kaddee and Warada).
The Karlamaya Kapurn community today recognises that rights in and responsibilities for the trial area as Karlamaya Kapurn country are inherited by descent (whether biological or by adoption) from a parent (whether male or female) who is a Karlamaya Kapurn person. As noted earlier in these reasons, the traditional Karlamaya Kapurn law relating to the inheritance of rights and interests in the country of a person's father has been adapted, by necessity, to a law which includes the inheritance of rights and interests in the country of a person's mother. Three of the four apical ancestors of the Karlamaya Kapurn community are female (Kaddee, Nellie Champion and Lucy Sambo). I concluded above that the cognatic descent rule for the acquisition of rights and interests in country, which is now acknowledged and observed by Karlamaya Kapurn people, is a traditional law and custom of the Karlamaya Kapurn people.

[1374]

The Karlamaya Kapurn community today maintain that they have the right to hunt and use the resources of the trial area under their traditional laws and customs, and many of the Karlamaya Kapurn witnesses gave evidence about the exercise of those rights. That evidence included the following.
Brian Champion Snr was taught to hunt kangaroos by his Uncle Noodi. He gave evidence about the change in seasons in the trial area and the different animals that are hunted in the different seasons. He explained that the Karlamaya word jurdtmull refers to the time of year when the seasons are changing from winter to spring, when the goannas are coming out of hibernation, the emu eggs are laid, and the mallee fowl have made their nests and other birds become plentiful. The Karlamaya word koomkoombee refers to the change in seasons from autumn to winter, when there is a smoky haze like after a bush fire, which is the time to stop hunting and eating the hill kangaroo (pigoodoo) and start hunting and eating the grey kangaroo (kulbit). A smoky haze appears again when the seasons are changing from spring to summer, which is the time to change back to hunting and eating the pigoodoo again. Brian explained that the purpose of this rotation is to give both types of kangaroo time to breed and replenish their numbers.
Elizabeth Sambo gave extensive evidence about the food and resources available from the land and waters of the trial area. Elizabeth explained what foods she would gather from the land under the instruction of her elders, including gum, jungy jungy and goog onion, seasonal fruit like quandong and kulgulas (silky pears). Elizabeth learnt how to hunt and track game and cooked small goannas (stating that hunting bigger game was always the "boys' role"). Elizabeth also used to go hunting with her father, her brother, and Richard Sambo, her cousin. They hunted for tjilkamarta (echidna), emu, turkeys, goanna, and bardis. Elizabeth said that it was important that you only took what you needed. Elizabeth still collects sandalwood and other wood to make artefacts like clapping sticks and digging sticks. She also makes bush medicine, including creams and medicines to drink. Elizabeth Sambo uses the bunyung (possibly spelled bunyaan) tree for the drinking medicine, and a stronger tree for making creams.
Ricky Dimer went hunting for kangaroos and emu eggs with his father growing up when his father was working on Credo Station. Ricky Dimer's grandfather, Dick Donaldson, showed Ricky and Johnny Champion which birds to shoot and eat. Ricky Dimer remembered that mallee fowls used to be abundant and each season he would visit all the large mallee fowl nests for the eggs. Ricky explained that the rules concerning hunting are passed down from father to son and to other young boys in the family, together with the practical knowledge of which places are good for getting particular animals, and at which times of the year.
Malcolm Champion explained that his father and uncles taught him how to hunt. He said that he was taught not to kill for the fun of it and to only take what you were going to eat. He said that the most prized parts of the kangaroo were the tail and the kidneys, and that every part of the emu can be used, and some parts have medicinal qualities. Malcolm also said that the person who killed the animal would always get the last piece, and everyone else would be served first. Malcolm said that he had hunting rights all around Karlamaya Kapurn country, including in the area around Southern Cross and Mukinbudin.
Davina Sambo said that she took her children on a hunting trip each time they visited Kalgoorlie. Her children learnt from her brothers and brothers-in-law how to kill a kangaroo, hang it up on a tree and skin it. Her children can now prepare a kangaroo themselves.
Trevor Donaldson said that his father used to take him out hunting and that he takes his children and grandchildren hunting in the trial area and passes on his knowledge to them.
Brian Champion Jnr described his family's easter tradition of camping at Elachbutting and hunting for kangaroos in that area.
Mark Champion described being taught how to hunt by his parents and grandparents when he was growing up. He was taught how to skin and prepare kangaroos for eating, how to find and dig up bardi grubs, as well as junga junga, a local yam species.
Charles Champion said that Karlamaya Kapurn people older than him (his father, uncles and older cousins) taught him how to butcher a kangaroo, and the rules that must be followed when hunting. Charles said that he was taught that "whatever you shoot, you gotta eat", and that "everyone shares the meat".
Simon Champion said that he went on hunting trips with his father when he was growing up. Simon's father would always be given the best parts of the kangaroo, such as the tail, the kidneys, the liver or the ribs. Simon noted that they would never take too much when they were hunting. When there was left over food, it would be brought back to town and shared with the families.
Darryl Trott said that his maternal grandfather, William Sambo, was the main person who taught him hunting when he was growing up. Darryl said that he had hunting spots that he kept going back to with William Sambo. They shot kangaroos and goats, and then cleaned them, cooked them and ate them. Darryl takes his grandchildren back to Kalgoorlie, where they go out into the bush to go camping and hunting.

[1378]

The Karlamaya Kapurn community today continues to acknowledge and observe kinship relationships that reflect their traditional laws and customs. Three aspects of the kinship relationships can be observed from the evidence.
First, the Karlamaya Kapurn community use classificatory kinship terms. In particular, elder males in a position of authority are frequently referred to by the kinship term 'uncle', even where the familial relationship is more distant. For example, Brian Champion Snr referred to his father's cousin, Charlie Paddy, as Uncle Noodi; Ricky Dimer referred to Jack Champion as Uncle; Gary Sambo referred to both Clem and Phil Donaldson as Uncle; Malcolm Champion referred to both Dick Donaldson and his son Clem (Kingy) as Uncle; Simon Champion referred to both Phil and Clem Donaldson as Uncle.
Second, the evidence of several Karlamaya Kapurn witnesses demonstrated that, under their traditional laws and customs, there is a special kinship relationship between uncles and nephews. Uncles assume an important role in teaching their nephews about Karlamaya Kapurn country and its laws and customs. Again, the evidence was both direct and indirect. For example, Ricky Dimer's Aboriginal name is Kyuntjilli. He was named after his mother's uncle, Jimmy Kyuntjilli, because of the special relationship between uncles and nephews. Malcolm Champion explained that, under Karlamaya Kapurn law, uncles teach their nephews. Similarly, Brian Champion Jnr's main teachers about Karlamaya Kapurn country, and the sites in Karlamaya Kapurn country, were his Pop George Wilson, uncles Dave and Tim Champion, and Clem Donaldson (who was his father's cousin-brother). Brian explained that this was in accordance with Karlamaya Kapurn law, whereby young men learn from their uncles, rather than from their father. Following the same custom, Brian Champion Snr was the main teacher for Tim Champion's son, James Champion. Many of the witnesses spoke of the knowledge of Karlamaya Kapurn country and its stories learned from their uncles.
Third, while the traditional generation moieties have faded from use, the Karlamaya Kapurn community continue to observe marriage rules based on kinship relationships. Brian Champion Snr explained that marriage laws still prevail under Karlamaya Kapurn law. Brian said that his grandchildren and great-grandchildren know that they must ask questions to avoid "marrying too close". Elizabeth Sambo said that it was an important cultural rule that people are not to marry their own bloodline. This is determined by the family, who know who someone is related to and their genealogy, and then will decide whether two people are too close to marry. Elizabeth said it is permissible for a Karlamaya Kapurn person to marry another Karlamaya Kapurn person, so long as they are not in the same bloodline. In relation to marriage rules, Davina Sambo also said that she knows who her family are related to and ensures that partners are not connected back into family lines.

[1379]

The relationship between the Karlamaya Kapurn community and the trial area is closely associated with their belief that the spirits of their ancestors reside in that country. Many of the Karlamaya Kapurn witnesses spoke about ancestral spirits. The evidence included the following.
Brian Champion Snr said that, when he goes to a site on country, he must speak to the spirits of the old people, his ancestors, and tell them who he is. Brian spoke of harm that could come to people if they were not introduced to the spirits of the country.
Elizabeth Sambo said that she never feels threatened when she is out of town on country, and that she always sleeps better when out camping because her ancestors want her to have that rest. Elizabeth talks to "old people" who have passed away all the time, explaining that she knows that they are watching over Karlamaya Kapurn people because they want the right things to happen in their country.
Gary Sambo gave evidence that there are places he had been where he had heard the spirits of the old people singing out, which is the old people warning him off from going there.
Ricky Dimer expressed his belief that, if people from other areas (such as the "Tjuntjuntjara mob") come onto Karlamaya Kapurn country and purport to speak for the country, they would "get into lots of trouble - spiritually and otherwise".
Maxine Dimer explained how she respected the spiritual power of the country: whenever she went out bush, she lit a fire to let the spirits know she was there.
Davina Sambo said that she knows about good and bad spirits in her country. Some spirits she knows from stories and others from her own personal experiences. Davina's father told her about where spirits were active.
Brian Champion Jnr expressed his belief that, to stay safe on country, you have to "talk to the spirits and let them know that you're there". Brian said that the "old people" are always around and protecting Karlamaya Kapurn people, but "if we do the wrong thing, they'll be out to get you and punish you".

[1382]

The evidence given by Karlamaya Kapurn witnesses about traditional Dreaming stories related to the trial area was limited. To some extent, this was attributable to a reluctance to share sacred information. However, it is also reasonable to conclude that knowledge of traditional Dreaming stories is very much diminished from the time before European settlement.
Nevertheless, some Karlamaya Kapurn witnesses have retained attenuated knowledge of Dreaming stories and sacred sites associated with those stories. The witnesses expressed a strong belief in the spiritual power of certain locations in the trial area and the importance of not visiting such places without the permission of elders.
Brian Champion Snr said that the Karlamaya word for 'Dreaming' is thoorgal (although on other occasions in the transcript of evidence, the word for 'Dreaming' was written as doolgoo, possibly in error). Brian gave gender restricted evidence of a secret location in the vicinity of Coolgardie / Kalgoorlie / Boulder which was associated with male initiation and which was part of a Dreaming track, and of a "male" site near Coolgardie and the ceremonies which occurred at that site. Brian also identified a place on the eastern side of Mount Burges which is part of a Dreaming story. Brian said that there is a significant site at Mount Charlotte lookout which is the place of the mallee fowl Dreaming. When giving evidence at Lake Deborah, Brian identified a big hill to the south as Martarnuglinj, where on sunny afternoons light green leaves of the kurrajong (ngarrka) trees are visible, and explained that the ngarrka Dreaming track starts from that place. When giving evidence in a cave near Beringbooding Rock, Brian described the rock art painted inside the cave which depicted the galaxy known as the Milky Way and the emu story.
Ricky Dimer pronounced the Karlamaya word for 'Dreaming' as thugururu. Ricky Dimer was told by his grandfather, Dick Donaldson, the Dreaming stories of the area and information about which sites to avoid. Information about important sites was also passed onto him by his father and his maternal uncles, Phil and Kingy (Clem) Donaldson. When giving evidence at Mount Burges, Ricky Dimer told an important Dreaming story about a place called Hines Flat which is close to Mount Burges. Ricky also told a Dreaming story for the silky pear associated with a large rock near Milaurdi soak. Ricky Dimer explained that protecting sites is important because they are part of the Dreamtime stories. He believes that it is important to respect the spiritual power of the land and ensure that one has permission to enter particular sites. Failing to follow these rules may result in "bad things" happening.
Grandfather Dick Donaldson shared his knowledge of the Dreaming sites with Maxine Dimer. When Maxine was a child, Dick Donaldson told her about a women's site six kilometres south of Coolgardie.
Davina Sambo wrote the Karlamaya word for 'Dreaming' as thurgal. Davina spoke about "important" places within Karlamaya Kapurn country including burial grounds, where elders camped, corroboree grounds and rock holes including the water source at Burras Rock, the rock hole at Kunanalling, Kulkurti rock hole in Coolgardie and Wangine Lake. Davina said that she knows about other important sites on Karlamaya Kapurn country, but these are not meant to be spoken about, especially sites that relate to women's business.
Mark Champion said that he is aware of the karlkula Dreaming track, which follows the karlkula (silky pear) plant. The Dreaming track commences from several sources, including from the west at Malyoorie (Mount Burges), north-west of Mount Johnston near Mount Elvira area and south at Red Hill (Warlyirrpi) at Kambalda and runs towards the east passing through Karlamaya Kapurn country and ending at the Karlkula rock hole just out of Williamstown, near Mount Charlotte on the outskirts of Kalgoorlie. Mark said that his father had shown him a Dreaming track south of Boulder relating to the millika bird (which is also known as the western scrub robin). Mark said that there is a Dreaming site at Ngalyarrie (Rowles Lagoon), and at Wanjin Soak, north-west of Kalgoorlie. Mark is also aware of other Dreaming sites including rock holes near Coolgardie, and at Bungalbin, a natural rock formation north-west of Southern Cross, both of which he has been to, as well as a site at Mount Manning (Warlanya), which he has not visited.
Trevor Donaldson said that he has passed on knowledge of country to his children and grandchildren, including "flat areas" near Mount Monger that have a Dreaming connected to it (which Trevor described in his evidence).
In his report, Mr Wood also summarised information he was given by Karlamaya Kapurn people when conducting field work with them in March 2020:

[1383]

Brian Champion related parts of the myths and/or pointed out sites belonging to piriya thukurl, Moon Dreaming, a man who turned into the moon; karlka, a goanna Dreaming whose eggs were turned into topography; birlaal, Rain Bird; mirrka, a small bird (quail? which he sang a little of its song); Wintju-Kawurniny, Cave Hill which is a Wind Story; turun-turun, a parrot Story in which the bird was speared; Yartalpi, a yarta eagle Story site; Kurrajong tree is an important totem for Kapurn people; a tree called nyalarri is a Story.

James and Tim Champion told me about a Bronze Wing Pigeon Dreaming towards the west of the claim area.

Sharon and Boyden Champion spoke about a Story site near Widgiemooltha that is "only for ladies," as men get sick the nearer they come to it, but they "want to keep the Story under wraps." Elizabeth Sambo also mentioned such sites. Sharon also mentioned the Silky Pear myth at Kalgoorlie.

Warren Dimer spoke about a dingo Story near Coolgardie.

Dorothy Dimer spoke about a Silky Pear Story at Mt Burgess in which the seed fell into a crack in the rock, after a wind knocked it down, "the Silky Pear travelled through, to Kalgoorlie, that's how Kalgoorlie got its name".

James Champion mentioned (Mar 16, 2020) the myth of the emu in the sky, and the Pulaatji Dreaming of a Kapurn man's pursuit of a northern man who had stolen his wife, and changed into an emu before he was speared near Boulder.

James Champion said that tjirlkamarra/tjirrkamarra porcupine was Tim's father's totem, "and he [Tim] has it too". Dorothy Dimer also named porcupine as the totem of her Uncle Kingi, and the Dreaming of Mt Burgess, which is her Uncle Bob's thukurr (Dreaming, site totem), while Raelene Peel's father also had porcupine totem. It appears to me that this emphasis on porcupine is partly due to the patrilineal descent of site totems, evident in the case of Tim Champion and his father, and perhaps also the focality of Mt Burgess.

James also mentioned the "two kingfishers burungkumat and tjaru," which grandchildren and grandparents belong to - that is, the named totemic generation moieties unique to the Kapurn community - and discussed totemic trees relating to the Kanku Pulatja narrative.

[1384]

The evidence of all the Karlamaya Kapurn witnesses demonstrated, directly or indirectly, that they have responsibility to protect and care for the trial area as Karlamaya Kapurn country. The evidence includes the following.
When giving evidence at a cave near Beringbooding Rock containing rock art depicting a Dreaming story, Brian Champion Snr said that it was difficult to protect the cave because it was on private property. He explained that both he and his "old people" had felt constrained in sharing cultural knowledge about the site out of fear that "someone will come along and destroy it".
Gary Sambo explained that caring for country is about making sure country doesn't get destroyed and about having a say in what happens to country.
Elizabeth Sambo said that Uncle Phil Donaldson would often ask people to drive him out to sacred sites to check on them because he did not have a car. He would get "panicky" when he heard that mining leases were being granted over particular areas where sacred sites were located. Elizabeth Sambo said that, in around 1999 or 2000, Uncle Phil Donaldson took her and her family to the old cemetery in the sandplains behind Coolgardie Hospital, to show them where it was to make sure they protected it from being mined for sand. Elizabeth Sambo said that the 'Sites Department' had talked about wanting to fence the area and asked Elizabeth Sambo's father and Uncle Phil Donaldson how many people were buried there. They said it was over 200 people.
Ricky Dimer explained that protecting sites is important because they are part of the Dreamtime stories.
Trevor Donaldson said that he does not agree with the term 'traditional ownership'. He explained that Karlamaya Kapurn people belong to their country. Trevor said: "We use and care for, maintain our country but we do not own it".
Malcolm Champion said that there are secret places and sacred places that he knows about on Karlamaya Kapurn country. He was told about these places by his father and uncles. He has an obligation under Karlamaya Kapurn law to protect these places and ensure that they are left alone.
Darryl Trott said that all Karlamaya Kapurn people look after the country together. Darryl does Aboriginal heritage surveys because it is important that sites are identified so that they can be protected from mining and "to show our children and grandchildren their country".

[1386]

The evidence given by members of the Karlamaya Kapurn community, when read in light of the ethno-historical evidence and the evidence from deceased forebears of the Karlamaya Kapurn community, demonstrates that Karlamaya Kapurn people have continued to live in the trial area since European settlement, have continued to acknowledge and observe their traditional laws and customs, and have passed down knowledge of their laws and customs from generation to generation by word of mouth and common practice. The evidence shows that, since European settlement, Karlamaya Kapurn people have retained strong kinship and social links, bound by shared laws, customs and identity as Karlamaya Kapurn people.
The available evidence from deceased forebears of the Karlamaya Kapurn community, Don Roundhead (born 1916), William Sambo (born around 1920), Phil Donaldson (born 1921), Clem Donaldson (born 1923), Desmond Sambo (born 1942), Linda Champion (born 1923) and Trixie Champion (born 1949), has been summarised earlier in these reasons. The evidence is significant because it demonstrates the ongoing vitality of the Karlamaya Kapurn community from the time of European settlement of the trial area, and the transmission of knowledge of country and the laws and customs of the Karlamaya Kapurn people to the present day Karlamaya Kapurn elders. Most of the deceased forebears were born in the early part of the 20th century. Many of them had a significant role in passing on knowledge to the next generation of Karlamaya Kapurn people, particularly Don Roundhead, William Sambo, Phil Donaldson and Clem Donaldson.
The evidence given by members of the Karlamaya Kapurn community includes the following.
Brian Champion Snr was born in 1937. His knowledge of the cultural matters about which he gave evidence is based on what he was taught by Karlamaya Kapurn men, being his father, Ted Champion (born around 1900), his uncle, Jack Champion, and by Charlie Paddy (Uncle Noodi), Phil Donaldson, Henry Donaldson and Clem Donaldson. His father, Ted Champion, and his uncle, Jack Champion, were born around 1900, shortly after European settlement. Charlie Paddy was born around 1891, about the time of European settlement. The Donaldson brothers were born shortly after European settlement, in the early 1920s. Although Brian Champion Snr was removed to a mission in Norseman in his childhood, he returned to the trial area and has lived most of his life in the trial area. Brian Champion Snr's evidence demonstrated that his knowledge of laws and customs was learned from the senior Karlamaya Kapurn men. Brian Champion Snr teaches his grandchildren the Karlamaya language.
Gary Sambo was born in 1947 and Elizabeth Sambo was born in 1949. Their parents were William Sambo, who was born in 1921, and Linda Champion, who was born in 1923. Gary's evidence indicates that he acquired knowledge of Karlamaya Kapurn laws and customs from Granny Shep (Charlie Nowa / Shepherd). Ms Taylor's evidence is that Charlie Nowa / Shepherd was born around 1881 and was the son of a woman named Polly, who was Karlamaya Kapurn. Elizabeth referred to learning from elders Granny Don Roundhead and her Uncle Cadley (Sambo), and her evidence demonstrates a close relationship between her family and Phil Donaldson.
Ricky Dimer was born in Coolgardie in 1952 and Maxine Dimer was born in Coolgardie in 1954. Their mother, Dorothy Dimer, was born in 1929. Dorothy was the daughter of Dick Donaldson and Alice Wilson / Minjin. Ricky and Maxine's uncles were Phil, Clem and Henry Donaldson. When Ricky was 16 years old, Dick Donaldson came out to mentor and look after Ricky at Mount Burges Station. During this period, Dick Donaldson also taught Ricky Dimer about the laws and customs that he was old enough to know about, including matters concerning the importance of Mount Burges. Ricky Dimer said that the main people who taught him about country and laws and customs were Dick Donaldson and Jack Champion. Maxine's evidence indicates that she was passed down knowledge of laws and customs from her grandparents, Dick Donaldson and Alice Minjin, her mother (Dorothy Dimer) and her uncles. Maxine passes on her knowledge to her children, grandchildren and her cousins' children out in the bush, teaching them bush skills, telling them stories, and teaching them about the country, language and animals
Trevor Donaldson was born in Kalgoorlie in 1956 and was raised in Widgiemooltha. His father was Henry Donaldson, the son of Dick Donaldson and Alice Wilson / Minjin. His evidence indicates that his knowledge of laws and customs was learned from his grandfather, Dick Donaldson, his father, Henry Donaldson, and his uncle, Phil Donaldson. Trevor Donaldson knows that he has obligations to pass his knowledge on to his children and grandchildren.
Malcolm Champion was born in Kalgoorlie in 1959. His father was Malcolm Ben Champion, who was born in about 1934 (and was the brother of Brian Champion Snr). When Malcolm Champion was growing up, he spent a lot of time with his grandfather, Ted Champion. His evidence indicates that his knowledge of laws and customs was learned from his grandfather, Ted Champion, his father and his uncles.
Brian Champion Jnr was born in Kalgoorlie in 1973. His main teachers about Karlamaya Kapurn country, and the sites in Karlamaya Kapurn country, were his Pop George Wilson, Uncles Dave and Tim Champion, and Clem Donaldson (who was his father's cousin-brother). Brian described a bus trip that he organised in April 2019 with James Champion to teach the new generation of Karlamaya Kapurn men about their country.

[1399]

Paragraph (a) of the claim group definition contemplates three methods to become a member of the Karlamaya Kapurn community and holding rights and interests in the trial area. The first method is descent from a Karlamaya Kapurn forebear. The second method is adoption by a Karlamaya Kapurn forebear under traditional laws and customs. The third method is 'incorporation' into the Karlamaya Kapurn community in accordance with traditional laws and customs.
All of the Karlamaya Kapurn witnesses gave consistent evidence that rights and interests in the trial area are acquired through descent from a Karlamaya Kapurn forebear, including by adoption by a Karlamaya Kapurn forebear. There was scant, if any, evidence concerning the possibility of a person being incorporated as a member of the Karlamaya Kapurn community so as to hold rights and interests in Karlamaya Kapurn country where the person is not a descendent (biological or by adoption) of a Karlamaya Kapurn person. In its closing submissions at trial, the Marlinyu Ghoorlie applicant referred to, but did not elaborate upon, the method of becoming a member of the Karlamaya Kapurn community so as to hold rights and interests in Karlamaya Kapurn country by 'incorporation' into the community.
One person who might be said to have been 'incorporated' into the Karlamaya Kapurn community is Dick Donaldson, who was a Ngadju man who married Alice Wilson / Minjin. However, none of the Karlamaya Kapurn witnesses expressed a belief that Dick Donaldson was 'incorporated' as a member of the Karlamaya Kapurn community. Brian Champion Snr (and his son Mark Champion) expressed the belief that Dick Donaldson was adopted by King Billy after he married Alice Wilson (Minjin). In contrast, Ricky and Maxine Dimer believe that Dick Donaldson was given responsibility by King Billy to care for Karlamaya Kapurn country. In oral testimony, Ricky Dimer said that Dick Donaldson was "bestowed into the Karlamaya Karlaku", but it is not clear what he meant by that expression. Maxine Dimer said that Dick Donaldson did not own the country, but he was to look after it for King Billy's descendants, who had the "right blood" for the country (through their descent from Alice Wilson / Minjin). Trevor Donaldson considers himself to be Ngadju through his paternal grandfather, Dick Donaldson, and Karlamaya Karlaku through his paternal grandmother, Alice Wilson / Minjin.
Another person who might be said to have been 'incorporated' into the Karlamaya Kapurn community is Lucy Sambo. As discussed earlier in these reasons, there is very limited documentary evidence concerning Lucy Sambo's tribal identity or her parents' tribal identity. Nevertheless, there is very strong evidence that (at the least) Lucy Sambo's children identified themselves, and were recognised by the Karlamaya Kapurn community, as Karlamaya Kapurn people, and Lucy Sambo's grandchildren identify themselves, and are recognised by the Karlamaya Kapurn community, as Karlamaya Kapurn people. It is at least a possibility that Lucy Sambo was not a Karlamaya Kapurn person but was 'incorporated' into the Karlamaya Kapurn community. As noted earlier, another possibility is that Lucy Sambo's children were adopted into the Karlamaya Kapurn community by Karlamaya Kapurn families. However, I have earlier reached the conclusion that there is sufficient evidence to find, on the balance of probabilities, that Lucy Sambo was herself a Kapurn person.
Having regard to the state of the evidence, and the limited submissions that were advanced on the issue of 'incorporation', I am not presently willing to conclude that the traditional laws and customs of the Karlamaya Kapurn community include a process of 'incorporation' as stated in the Marlinyu Ghoorlie claim group definition. I consider that the separate questions should be answered without reference to the concept of incorporation. However, as the issue was not addressed fully at the trial, I will grant the Marlinyu Ghoorlie applicant leave to re-open this issue in the next phase of the proceeding if it wishes to do so.

[1402]

Although some of the answers in the above passage may be interpreted as providing a degree of support for criteria of mutual recognition, I consider that the answers are ambiguous and I am not confident that Brian Champion Jnr understood the questions in the sense of mutual recognition.
The issue of mutual recognition was also raised during the concurrent hearing of the expert witnesses. Mr Wood expressed the opinion that, under the laws and customs that operate in the trial area as understood by him, the criteria for membership of the rights-holding group "probably" did not include an active assertion of membership. Mr Wood also expressed the view that he considered recognition of a person as Karlamaya Kapurn by the Karlamaya Kapurn community is based wholly on descent. In contrast, Ms Taylor expressed the opinion that, while "descent is the overarching criteria which connects people" to the Karlamaya Kapurn group, once a person has established their descent "there would be certain requirements for them to identify to have ongoing membership". Dr Powell expressed agreement with Ms Taylor's opinion, but added that the role of elders in making these decisions is very important because it is the elders who have the memory of familial relationships and therefore are able to adjudicate whether a person is Karlamaya Kapurn by descent.
Although the issue of mutual recognition was not addressed directly in the evidence of the Karlamaya Kapurn witnesses, it was to some extent implied by their evidence. As already noted, each of the Karlamaya Kapurn witnesses gave evidence that they identified themselves as Karlamaya, Kapurn or Karlaku. In practical terms, the question whether a person is Karlamaya Kapurn and holds rights and interests in the trial area would not arise unless the person had identified themselves as Karlamaya Kapurn. Self-identification is a necessary step to participate in the rights-holding group. As also noted earlier in these reasons, the evidence of the Karlamaya Kapurn witnesses demonstrates a substantial degree of unity with respect to the membership of the Karlamaya Kapurn community (as including the descendants of the agreed apical ancestors).
It is relatively common for the description of native title rights-holding groups to include criteria of mutual recognition. To some extent, criteria of mutual recognition are inherent in the requirement that native title rights and interests must emanate from (be possessed under) the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs (as per Yorta Yorta at [50]). As expressed by Brennan J in Mabo (No 2) at 61, native title survives "so long as the people remain an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs".
I have earlier concluded that the Karlamaya Kapurn people are an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs. There is a substantial degree of unity within the community with respect to their identity as Karlamaya Kapurn people and the membership of the Karlamaya Kapurn community. The evidence of the Karlamaya Kapurn witnesses demonstrated, directly or indirectly, the important role of elders within the community as sources of authority within the community. In my view, it is consistent with the laws and customs of the Karlamaya Kapurn community for decisions concerning membership of the community to be resolved under traditional decision-making methods involving the authority of elders. Taking all of those matters into account, I consider that the inclusion of criteria of mutual recognition in defining the native title rights-holding group is supported by the traditional laws and customs of the Karlamaya Kapurn community.

[1409]

As is now well recognised, the connection which Aboriginal peoples have with "country" is essentially spiritual. In Milirrpum v Nabalco Pty Ltd (129), Blackburn J said that: "the fundamental truth about the aboriginals' relationship to the land is that whatever else it is, it is a religious relationship . . . There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole". It is a relationship which sometimes is spoken of as having to care for, and being able to "speak for'", country. "Speaking for" country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. Nor are they reduced by the requirement of the NTA, now found in par (e) of s 225, for a determination by the Federal Court to state, with respect to land or waters in the determination area not covered by a "non-exclusive agricultural lease" or a "non-exclusive pastoral lease", whether the native title rights and interests "confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others'".

[1410]

Having regard to the foregoing principles, I consider that the separate question concerning the nature and extent of the native title rights and interests in relation to the trial area should be answered by reference to the rights and interests possessed by the Karlamaya Kapurn community under the traditional laws acknowledged and the traditional customs observed by them. Answering the separate question in that manner recognises that the final determination of native title in this proceeding, which will include a determination of the nature and extent of the native title rights and interests in relation to the trial area, will involve an assessment of the impact of other interests on the rights and interests possessed under traditional laws and customs and the translation of the rights and interests possessed under traditional laws and customs into a form that can be recognised by Australian law.
I have earlier concluded that, at effective sovereignty, Karlamaya Kapurn people had the right to occupy the trial area and use its resources. This included the hunting and gathering of natural resources and the trade in those resources. The customary title held by the Karlamaya Kapurn people at effective sovereignty was analogous to fee simple, albeit it was a communal rather than individual title and was inalienable. It embodied unfettered and pragmatic rights to utilise all the animals, plants, fauna and other resources of usefulness for the community's immediate livelihood, for exchange, and for cultural life.
As described in these reasons, European settlement of the trial area brought about profound change to the lives of Karlamaya Kapurn people. The effects of European settlement of the trial area forced the Karlamaya Kapurn people to adapt their traditional laws and customs to the new social and legal order. Despite those changes, I have concluded that the Karlamaya Kapurn people have continued to acknowledge and observe their traditional laws and customs under which they possess rights and interests in the land and waters of the trial area and by which they have a connection with the land and waters of the trial area. It follows, in my view, that the rights and interests possessed by the Karlamaya Kapurn community under the traditional laws acknowledged and the traditional customs observed by them have not changed since effective sovereignty.
In the further amended application, the Marlinyu Ghoorlie applicant described the native title rights and interests claimed by the claim group by reference to two categories of land and waters. In respect of land and waters where there has been no extinguishment of native title (or where any extinguishment is required to be disregarded), the native title rights and interests are the right to possession, occupation, use and enjoyment to the exclusion of all others. In respect of flowing and underground waters, this includes the right to use and enjoy the waters (including to fish). In respect of all other land and waters, the native title rights and interests are the following non-exclusive rights, including the right to conduct activities necessary to give effect to them:

Parties

Applicant/Plaintiff:

Dimer on behalf of the Marlinyu Ghoorlie Claim Group

Respondent/Defendant:

State of Western Australia [2025] FCA 1641

Legislation Cited (3)

Title Act 1993

(Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016

Court Rules 2011

Cases Cited (65)

Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory [2004] FCA 472; 207 ALR 539

Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385; (2012) 202 FCR 564

Blucher on behalf of the Gaangalu Nation People v State of Queensland [2025] FCAFC 177

Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84

Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2012] FCA 944; (2012) 210 FCR 21

Brownley on behalf of the Gulgoordi-Garlgurla Wongi People v State of Western Australia [2024] FCA 208

CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204

Colbung on behalf of the Karratjibbin People v State of Western Australia [2023] FCA 1065

Colbung on behalf of the Karratjibbin People v State of Western Australia (No 2) [2023] FCA 1449

Croft (on behalf of the Barngarla Native Title Claim Group) v South Australia [2015] FCA 9; 325 ALR 213

Daniels v Western Australia [2000] FCA 858; 178 ALR 542

Daniel v Western Australia [2003] FCA 666

De Rose v State of South Australia [2002] FCA 1342

Dimer on behalf of the Jardu Mar People v State of Western Australia [2022] FCA 64

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2023] FCA 1060

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 5) [2023] FCA 1417

Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510

Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1

Lewis on behalf of the Nyalpa Pirniku Native Title Claim Group v State of Western Australia [2023] FCA 1294

Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827

Malone on behalf of the Western Kangoulu People v State of Queensland (No 6) [2025] FCA 363

Malone v Queensland [2021] FCAFC 176; (2021) 287 FCR 240

Malone v State of Queensland (the Clermont Belyando Area native title claim) (No 5) [2021] FCA 1539; 397 ALR 397

Manado (on behalf of Bindunbur Native Title Claim Group) v Western Australia [2017] FCA 1367

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422

Narrier v Western Australia [2016] FCA 1519

Neowarra v State of Western Australia [2003] FCA 1402

Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622

Sambo v State of Western Australia (No 2) [2010] FCA 927

Sambo v State of Western Australia [2009] FCA 940

Sambo v State of Western Australia [2015] FCA 954

Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2005] FCA 777

Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2010] FCAFC 26; 266 ALR 537

Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108; (2017) 254 FCR 107

Starkey v South Australia [2018] FCAFC 36; (2018) 261 FCR 183

State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) [2013] FCAFC 58; (2013) 211 FCR 150

Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270

Stuart v South Australia [2025] HCA 12; 99 ALJR 731

Velickovic v State of Western Australia [2012] FCA 782

Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1

Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (No 2) (2008) 181 FCR 300; [2008] FCA 1929

Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464

Wyman v Queensland (No 2) [2013] FCA 1229

(2012) 202 FCR 564

(2006) 153 FCR 120

(2012) 210 FCR 21

(2006) 165 FCR 300

(2005) 141 FCR 457

(2002) 214 CLR 422

(2018) 261 FCR 183

(2008) 181 FCR 300

(2008) 248 ALR 61

(2000) 99 FCR 316

(2008) 167 FCR 84

(2005) 145 FCR 290

(2007) 165 FCR 391

(1992) 175 CLR 1

(2021) 287 FCR 240

(2005) 145 FCR 442

(2017) 254 FCR 107

(2013) 211 FCR 150

(2008) 173 FCR 1

(2002) 213 CLR 1

(2015) 235 FCR 464

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2025] FCA 1641

At a glance

Court

Decision date

Before

Source

Judgment (1419 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (65)