The expert evidence
53 The Morton report was the first report in time. However, Dr Morton did not take part in the conference of experts and did not give oral evidence. The parties agreed that his report would be tendered in evidence. As the main contest was between the views of Dr Palmer and Dr Clarke, it is convenient to deal with their evidence first, and at the end, to consider the Morton report. Before turning to the evidence of Dr Palmer, Dr Clarke and Dr Morton an outline of their qualifications and experience will be set out.
54 Dr Palmer commenced work as an anthropologist in the Pilbara in the 1970s as a research officer with the Department of Aboriginal Sites in the Western Australian Museum. Dr Palmer holds a PhD from the University of Western Australia. In the late 1970s he undertook research as part of his doctoral study into the Njamal and Ngungamarta people living in Yandeyarra. At that time Dr Palmer also worked with some Kariyarra people and included an account of the customary system of rights to land in the region.
55 In the 1980s Dr Palmer was employed as head anthropologist by the Northern Land Council, and later in the 1980s as head of research by Australian Institute of Aboriginal and Torres Strait Islander Studies.
56 From the start of native title litigation, Dr Palmer has been involved in some of the major cases including Timber Creek, the single Noongar case, Rubibi, Ngarla, Jurruru, and Banjima as an expert conducting field work, compiling reports and/or giving evidence. A number of those cases involved work in the Pilbara. Dr Palmer's CV lists an impressive collection of books, articles, reviews and papers produced over his career of over 40 years.
57 Dr Clarke holds a PhD from the University of Adelaide awarded in 1995 in the area of social anthropology and human geography. From 1982 until October 2011, Dr Clarke was employed by the South Australian Museum. He held various curator positions and in 2000 was appointed Head of Anthropology / Manager of Sciences. Initially at the Museum, he worked in the Aboriginal ethnographic collection. His research interest was Aboriginal use of plants as food, medicines and materials for making artefacts. That interest broadened out to the Aboriginal perception and use of land which was the subject of his doctoral thesis. He has continued to publish on the subject of Aboriginal relationships with flora. During his employment with the Museum in 1998 - 2000, he curated the Australian Aboriginal Cultural Gallery Project which he said provides the most comprehensive national survey of Aboriginal culture. As an anthropologist employed by the Museum he was called upon to answer enquiries from government and others about Aboriginal cultural issues. He left the Museum in order to work as a consultant anthropologist. In that capacity he has worked on native title cases in the Barkly Tablelands in the Northern Territory, in the West Coast and Eyre Peninsula of South Australia, in the rainforest region of northern Queensland, and in the present case. He has also done work for several State museums for the Return of Indigenous Cultural Property Program, and for the Northern Land Council in relation to ethnographic clearances for mining sites.
58 Dr Morton is also a highly qualified and experienced anthropologist. He holds a PhD from the Australian National University in social anthropology awarded in 1986. Since 1981 he had engaged in field work with Aboriginal communities in the Northern Territory, South Australia, Victoria, New South Wales and Queensland relating to heritage protection, land rights claims and native title cases. He was engaged by the Court in these proceedings to investigate and report on the traditional laws and customs concerning rights to land of the Kariyarra people in order to try to assist the parties to identify the people entitled to native title rights in view of the differences of opinion within the group on that matter.
59 The expert evidence explained the nature of landholding in the application areas. At sovereignty, under traditional laws and customs, land was held by small family groups which related to a larger tribal grouping which was not itself a landholding group. The pattern of landholding is an issue which arises in the later discussion about the extent of the Tommy Anderson estate. It is convenient to include the expert views about landholding in the area at this point in these reasons for judgment because it appeared by way of introduction, to and in the course of the discussion by the experts of, the descent rule.
60 The Palmer 2013 report is a comprehensive connection report of 339 pages, excluding appendices, which addresses all aspects of Kariyarra society and its traditional laws and customs. Dr Palmer spent 71 days in producing the report including a review of the literature and 38 days of field work. He had a familiarity with the Kariyarra people and the area from his 1970s doctoral work in Yandeyarra. The result is a model of an expert anthropological report for native title purposes. It is well researched, comprehensive, tightly reasoned and the views expressed are balanced. In particular, Dr Palmer acknowledged that many of the views expressed required a judgement which was contestable but he nonetheless offered a view based on his expertise accepting that other views were available. That approach is of considerable assistance to the Court. Of present interest is the way in which the report dealt with the traditional laws and customs concerning the acquisition of rights to land by descent.
61 Dr Palmer surveyed the writings from around the early part of the 20th century from observers of the Aboriginal people of the general area. Those observers were explorers, pastoralists, bureaucrats and Daisy Bates. Dr Palmer related the observations made about Aboriginal presence and cultural practices at the time.
62 Then, in chapter 3 of the report, Dr Palmer examined the work of A R Radcliffe-Brown which was the first investigation of Aboriginal culture in the area by a trained anthropologist. It was also important because Radcliffe-Brown focused attention on the Kariyarra people. Radcliffe-Brown was appointed to the first chair of anthropology at the University of Sydney in 1926, a post he held until 1931. Radcliffe-Brown carried out field work in Western Australia in 1911. As a result, in 1913 he published a description of three tribes of Western Australia, one which was the Kariyarra (Radcliffe-Brown 1913). Then, in 1930, he published an account of the social classification of Australian tribes. That work repeated some of his earlier materials on local organisation and expanded his views of Kariyarra social organisation which he called the Kariyarra system.
63 As to Radcliffe-Brown 1913, Dr Palmer said that:
It has become a citation classic amongst anthropologists because of its succinct statements relating to local and social organisation as well as its comparatively early date in the history of Australian Aboriginal studies.
64 Dr Palmer then related Radcliffe-Brown's observations and views about the landholding by the Kariyarra people as follows:
95. Members of the group were living on pastoral properties where they also worked, a situation that had been in place for about 50 years. He considered that their numbers were steadily decreasing and only some 80 or 90 had survived to the time of his visit (ibid, 144). They were distinguished from their neighbours by possession of a name (that is to say, Kariyarra), a language and a 'defined territory' (ibid., 144). The Kariyarra had neither chief nor government (ibid., 144). Fights and disputes were localised and there was no unity in warfare. Radcliffe-Brown estimated the Kariyarra to occupy approximately 3,500 to 4,000 square miles (ibid., 145).
96. Radcliffe-Brown understood that the tenurial system was based on, 'Local groups, each with own defined territory' (ibid., 145). Membership of a local group was determined by descent in the male line. The country of a local group was identified by reference to an important place or places within the country of that group (ibid.). He prepared a map of these groups which he numbered I to XIX. However he stated that his map on which he represented the local groups of the Kariyarra was not complete, 'that is to say, it does not show all of the local groups formerly existing' (Radcliffe-Brown 1913, 145).
Figure 3.3: Radcliffe-Brown's map of the 'Kariera Tribe' (1913)
97. Rights of ownership within the local group area were exclusive to members of the local group. He wrote,
The country of a local group, with all its products, animal, vegetable, and mineral, belongs to the members of the group in common. Any member has the right to hunt over the country of his group at all times. He may not, however, hunt over the country of any other local group without the permission of the owners. A single exception to this rule seems to have existed where a man was following a kangaroo or emu and it crossed the boundary into the country of his neighbours, when he might follow it and kill it. Hunting, or collecting vegetable products on the country of another local group constitutes an act of trespass and was in former times liable to be punished by death. The importance attached to this law seems to have been so great that offences against it were very rare. In the early days of the settlement of the whites in the country of this and neighbouring tribes, the squatters made use of the natives as shepherds, and I have been told on several occasions that they found it at first impossible to persuade a native to shepherd the sheep anywhere except on his own country. I could not find any evidence of the individual ownership of any part of the soil or any of its products. The whole territory of the group and everything on it seem to belong equally to all the members of the group.
98. Despite these strictures, Radcliffe-Brown noted that visiting and sharing of food was common (ibid., 146-7) such that there was 'a perpetual shifting to and fro both within the country of the group and from one group to another' (ibid., 147). Radcliffe-Brown also observed that the language identity of local groups was not always singular (ibid., 160-161). Some for example were designed, 'half Ngaluma, half Kariera' He observed, 'The fact is that one tribe is not clearly marked off from its neighbours but there are often near the border a number of local groups that occupy an indeterminate position' (ibid., 161 ).
99 Local groups were exogamous so a man had to gain a wife from a local group different to his own. The wife did however retain rights to her own country.
A woman seems to have retained a sort of right over the country of her birth, so that a man and his wife were generally welcome to visit the wife's local group whenever they wished. A man seems also to have a sort of secondary right over the country of his mother, that is the country to which she belonged by birth. In a large number of cases this was the same as the country of his wife. In both cases, however, it seems to have meant no more than that a man was sure of a welcome in the country of his wife or his mother.
[Emphasis added.]
65 Dr Palmer next described the views of Radcliffe-Brown about the Kariyarra kinship system and how they impacted on landholding as follows:
104 Radcliffe-Brown understood the kinship system of the Kariyarra to be characterised by a process of proper relationship founded on behaviour and obligation. Moreover, it was no abstract system, but one founded upon relationships of consanguinity. He saw this system as fundamental to local organisation, which led him to return to a consideration of the local groups discussed in the earlier part of his paper.
Each local group, however, that is, each of the local subdivisions of the tribe, consists of members of one couple only. Thus one local group consists of men and women of the classes Karimera and Burung, while another consists of Banaka and Palyeri men and women.
66 Then, in an important paragraph Dr Palmer explained:
105 Radcliffe-Brown then sought to refine his definition of the local group which he proposes to call a 'clan' in future publications.
I propose in this and future publications to use the word 'clan' to denote a social division of this kind, of which the Kariera local group is an example. A clan by this definition consists of a body of persons who are closely related to one another in one line (that is, either in the male line or in the female line) and who are clearly marked off in some way from the similar divisions of the same society. In the Kariera tribe we have clans with descent in the male line. Each clan includes a number of men who are, by the relationship system, father's father, father, brother, son, or son's son to each other. Each clan is marked off from every other by the possession of its own territory, and as we shall see later, by other features also.
67 Dr Palmer next explained in the following passages that in 1930 Radcliffe-Brown revised (Radcliffe-Brown 1930) but did not substantially change his views.
109 … In 1930 he published a paper which sought to define the social organisation of Australian tribes which, as the title suggests, treated many groups in addition to the Kariyarra (Radcliffe-Brown 1930). In this he generalised from the particular, attempting to set down a definitive account of Australian systems of social and local organisation. He introduced a new term, 'horde' to his account which he hoped would clarify what he meant by use of the word 'clan'.
The horde is a small group of persons owning a certain area of territory, the boundaries of which are known, and possessing in common proprietary rights over the land and its products - mineral, vegetable and animal. It is the primary land-owning or land-holding group. Membership of a horde is determined in the first place by descent, children belonging to the horde of their father.
Radcliffe-Brown 1930, 35.
110 He sought to clarify membership in reality ('an existing group at any moment') by accommodating wives of local group members.
The horde, therefore, as an existing group at any moment, consists of (1) male members of all ages whose fathers and fathers' fathers belonged to the horde, (2) unmarried girls who are the sisters or daughters or son's daughters of the male members, (3) married women, all of whom, in some regions, and most of whom, in others, belonged originally to other hordes, and have become attached to the horde by marriage.
Ibid., 35-6.
111 Later and in the same article (ibid., 59) he attempted to distinguish the horde from the clan. His initial proposition was that for the Kariyarra, 'all the men of any given horde belong to a single line of descent' (ibid., 59). Since the horde is based on descent ego's father's horde is different to ego's mother's horde. Recognising perhaps that the two hordes would then constitute a single social unit (the family or group that lived together on a daily basis) he suggests using the term 'clan' for the residential group. His conclusion in this regard is however not evident.
We can therefore say that in the Kariera tribe, connected with each horde there is a clan. I have defined a horde as consisting of all men born into the horde together with their wives and unmarried daughters. The clan connected with the horde consists of all persons born in the horde. The male members of the clan all remain in the horde from birth to death. The female members of the clan remain with the horde till they are married and then are transferred to other hordes.
Ibid., 59.
68 Dr Palmer then drew attention to the distinction made by Radcliffe-Brown between the tribe and the horde, and stated:
113. … Radcliffe-Brown understood the term 'tribe' to refer to a group of people who spoke the same language and who shared common customs.
Throughout Australia hordes are grouped into larger local or territorial units, which will be spoken of as tribes. The primary mark of a tribe is that it consists of persons speaking one language, or dialects of one language. Its unity is primarily linguistic. The name of the tribe and the name of its language are normally the same. So that the easiest way to ascertain to what tribe an individual belongs is usually to ask him what language he speaks. In addition to this unity that comes from a common language there is also a unity of custom throughout the tribe.
Ibid., 36.
69 Dr Palmer made reference to Radcliffe-Brown's view that the tribe was not the landholding body. Dr Palmer stated:
117 In terms of proprietary interests in land Radcliffe-Brown provides a corrective to a common misconception. He observed that while, 'a tribe is commonly spoken of as possessing a certain territory' and was 'regarded as a land-holding group' such depiction was 'not quite accurate ... so far as Australia is concerned' (ibid.). The source of the error lay in conflating the tribe with its constituent local groups. The 'tribe' could be regarded as owning land,
... only because it consists of a certain number of hordes, each of which has its territory. The territory of the tribe is the total of the territories of its component hordes.
70 In chapter 3 of the Palmer 2013 report, Dr Palmer undertook a critical assessment of the work of Radcliffe-Brown. Part of that assessment concerned the issue whether patrilineal descent was the only path to the acquisition of rights to land.
71 Dr Palmer argued that Radcliffe-Brown was not always clear about how he distinguished the horde from the clan and that it was likely Radcliffe-Brown conflated the idea of land-owning and land-using groups employing the terms horde and clan without differentiating their intended meaning. Dr Palmer said that partly as a response to that lack of clarity, a debate ensued among anthropologists regarding Aboriginal customary local organisation in Australia. Dr Palmer set out the view of Stanner (Stanner 1965) and Berndt (Berndt 1959) on the issue and continued:
142 While the debate about local organisation has not been fully resolved, a number of important issues have became generally accepted, building on and modifying the original orthodox proposition that a patrilineal descent group (of one sort or another) comprised the basis of the land owning unit. Radcliffe-Brown postulated that there had to be a normative system of laws that regulated the rights of a horde (local group) to its country and to each other (Radcliffe-Brown 1952, first published in 1935). He considered such an arrangement to rely upon a principled system of patrilineal succession that would avoid 'unresolveable conflict'. He thus sought to establish that unilineal systems had a functional origin which if absent would have dysfunctional consequences (ibid., 46).
143 Subsequent studies have demonstrated that patrilineal descent may not have been the only means of gaining rights to country. Evidence produced as a result of land claim research has shown that unilineal descent as the sole basis for owning land may not have been the case everywhere, particularly for the less well-watered areas. In addition, there was evidence that rights to country could be gained through a number of ways, patrifiliation being just one (Peterson 1983, 137-8; Stanner 2001, 112-114). Myers, writing of the Pintupi of central Australia, showed that rights in estates were multiple and perhaps differentiated as to degree rather than singular in relation to one patri-estate only (Myers1986, 138-140). These writers are in broad agreement that there are several different means of gaining rights to country, including Radcliffe-Brown as I discuss below (see paragraph 146 and following).
144 It is likely that in arid regions, where maximum flexibility was required to ensure continuity of inheritance in an uncertain environment, more open systems were to be found, favouring multiple pathways of descent and the acquisition of rights to country through means other than descent (Keen 1997, 66). Other writers have pointed out that such flexibility is likely to have been common in many areas, including those outside of what has been generally identified as the Western Desert cultural bloc (Sutton 1999, 15-19, 26-32; Keen 1997). However, there appears to be much variation in the ethnography (cf. ibid., 73) and perhaps the best conclusion is that no model fits all.
[Footnotes omitted.]
72 Then, in a passage of central importance to this issue, Dr Palmer stated:
146 In his 1913 article (1913, 144-147), Radcliffe-Brown had stated that rights inured in the patriline with 'some sort of a secondary right' to the country of the mother. He wrote, 'A man seems also to have a sort of secondary right over the country of his mother, that is the country to which she belonged by birth. In a large number of cases this was the same as the country of his wife. In both cases, however, it seems to have meant no more than that a man was sure of a welcome in the country of his wife or his mother' (ibid., 147). Later (1952) Radcliffe-Brown elevated these secondary rights to 'quite important rights'.
It is important ... to recognise that in this instance, and, as far as we know, in all instances of patrilineal succession, some rights are also transmitted through the mother. Thus in the Kariera tribe a man has certain quite important rights over his mother's horde, over its individual members, and over its territory.
Radcliffe-Brown 1952, 36.
147 Radcliffe-Brown was of the view that members of a country group were required to seek permission to use another country group's country, or be invited into it (see paragraph 96 and 97 above). This developed from his understanding that a country group was composed of those tracing common patrifiliation, whose members exercised rights in a more or less defined estate. However, if a man had rights in his mother's country he also had rights in the country of another patrilineal group's country. Should he gain rights to country through other means, as later studies have shown to be the case in many areas of Australia (see paragraph 143 above) then he might exercise rights in other estates too. Members of the residence group, drawn from a number of different country groups would together exercise rights over many different countries through these various pathways. Just how the allocation of rights to different areas of country might be actuated would depend upon the manner whereby rights were asserted and membership of the land-using group. This points to a situation where rights to country were multiple rather than singular and would have been exercised across a wide range of country comprising the home estates of a number of different descent groups, as Stanner reported (see paragraph 139).
148 Radcliffe-Brown's particular characterisation of rights inuring to a single patriline within a sole estate is unlikely to have been the case in practice. Certainly subsequent researchers observed a more complex situation. For example, R. and M. Piddington, who worked amongst the Karajarri south of Broome, wrote of the coastal Nadja Karajarri that Radcliffe-Brown's rule of exclusive ownership of the horde did not apply to their field data. They wrote,
this rule does not exist. Certain small exogamous groups exist, but they lack the solidarity which characterises the normal Australian horde; small parties composed of less than a dozen individuals from any horde may go on hunting expeditions lasting several months, over the territory of any other horde, without asking permission of the owners, who would not object.
M. and R. Piddington 1932, 351
149 Elkin disagreed with R. and M. Piddington suggesting that since the Karajarri had been 'under white influence for some sixty years' this made reconstruction 'difficult' (Elkin 1933, 279) and that failure to ask permission was due to the, 'decadent condition of this part of the tribe' (ibid., 280). Elsewhere I have discussed Elkin's own field data in detail and concluded, based on my reading of his materials, that he demonstrated in fact that,
Patrifiliation was an operative principle in the descent of rights to country, but it was not the only one. There was no neat fit between an individual's totemic affiliations and his or her father or father's estate. A singular patrifiliative totemic principle did not govern the descent of rights in an estate.
Palmer 2010c, 88.
150 P. Kaberry worked in the Kimberley region a few years after R. and M. Piddington's work further to the west. She questioned Radcliffe-Brown's justification for accepting patrifiliation as a given, based on economic determinants (Kaberry 1939, 136-7). She cited other researchers (Stanner and Warner) to support her view that a man might live in his mother's country, presumably as of right, as well as his father's (ibid., 137). The real tie to patri-country, she argued, was a result of ritual and spiritual ties that develop as a result of a man's relationship with his father (ibid., 138). Kaberry also distinguishes rights in at least two other countries; country (or area) of birth and mother's country (ibid., 31, 137; 194-5).
151 The evidence supports the view that these researchers had found field data to support the conclusion that proprietary interests in country were multiple and complex, depending on a number of relationships. Permission and the exercise of rights were best understood in the context of the relationships that legitimated their expression. The ideal of the patrilineal descent group whose members exercised exclusive rights within a single estate was not a satisfactory or adequate representation of the ethnographic reality.
[Footnotes omitted. Emphasis added.]
73 Dr Palmer concluded at [239] that at sovereignty rights to land were acquired by Kariyarra people by descent either through the patriline or the matriline.
74 In chapter 8 of the Palmer 2013 report, entitled Accounts of Land Ownership at Yandeyarra, Dr Palmer recounted his doctoral work in Yandeyarra in the 1970s and also his work in 1980 with Penny Taylor for the Department of Aboriginal Studies of the Western Australian Museum to identify sacred sites within the Kangan Pastoral lease. Dr Palmer was careful to explain that most of his work in Yandeyarra was with the immigrant population which greatly outnumbered the local owners. The focus of the work was how the immigrant groups managed to assert dominance in community and ritual matters when living in someone else's country. Dr Palmer explained:
251 Morton points out that in my research the Kariyarra did not figure very prominently (Morton 2012, 64) and of the six languages groups I recorded at Yandeearra (Palmer 1981b, 22) the Kariyarra were 'conspicuous by [their] absence' (Morton 2012, 64). My account of local organisation at Yandeearra was developed from those with whom I worked: for the most part members of the immigrant community, although some of my informants were locals. An exhaustive account was not possible given that some of the local owners were absent from Yandeearra and so not readily available to me for interview. I then set out to relate the account of local owners to the problems of how immigrant groups managed to assert dominance in community and ritual matters when living in someone else's country (Palmer 1981b, 415-6). My account of local owners was then not one provided in its own right but as necessary contributory data brought to bear on my analyses of the ordering of social relationships.
[Footnotes omitted.]
75 Dr Palmer said in the Palmer 2013 report, that he wrote generally about the Aboriginal residents at Yandeyarra and he cited from his 1981 thesis (Palmer 1981b) as follows:
252 In my thesis I write generally about the Aboriginal residents at Yandeearra with whom I worked. I had, from the outset, made clear who comprised this community and it follows from the statements I have made in the preceding paragraphs that my comments were not for the most part about the Kariyarra (Palmer 1981b, 22-23). Indeed, when I set out to define 'concepts of land and land ownership' I indicated that my data was taken from Nyangamarda speakers (ibid., 333 ff), that language being commonly employed at Yandeearra at the time of my field work there (ibid, 22). I then listed key words that comprise the lexicon of the language of land and their meanings, including terms for country or estate, owner of country, stranger, spiritually potent water source, country and repository of sacred objects (ibid., 334). I go on to state that,
At Yandeearra, people inherit land from their matri-kin or patri-kin as a consequence of being born into a clan, and the inheritance of land is a birth right. Traditionally, all Aboriginal men or women inherited rights in a clan estate. The warany, or estate is, then, inalienable property, and that is one of the encumbrances of ownership.
Palmer 1981b, 335.
[Footnotes omitted. Emphasis added.]
76 In chapter 11 of the Palmer 2013 report, Dr Palmer addressed the contemporary state of laws and customs relating to the acquisition of land. He stated:
456 The claimants with whom I worked are of the view that rights to country are gained via descent. In this regard filiative links with forebears traced through either the male or female line are regarded as equally legitimate. Simply stated then a Kariyarra person gains rights to the country of their forebears in the same way as they gain their Kariyarra identity.
77 Dr Palmer then quoted some of the information provided to him by Ms Diana Robinson, Kerry Robinson, Ms Irene Roberts, Mr Alfred Barker, Les Stevens and by members of the Indigenous respondents' families at the time when he wrote the Palmer 2013 report and concluded from that material:
458 Descent is afforded by reference to either matri or patri-filiates. Such a system can be termed cognatic in that descent of rights is counted through any combination of male and female links to forebears. This is in contrast to a unilineal system of descent, where descent is traced only through the male or female line. Cognatic descent affords choice and flexibility since the range of country available theoretically increases exponentially with each new generation. Unilineal descent ensures continuity of rights to country reside only within the members of the patriline (or matri-line if it is a matrilineal system).
[Emphasis added.]
78 Finally, on this issue, Dr Palmer concluded that the laws and customs concerning the acquisition of rights to land by cognatic descent have continued in existence from before sovereignty until now. He said:
495 … I also think it possible that patrilineality was formerly understood to afford the most direct pathway to attaining rights to country - a shift to cognation perhaps resulting from the increase in mixed marriages (particularly between European men and Aboriginal women). However, the system is underpinned and relies upon what are in my view incontrovertible aspects of customary belief and practice, reflecting a continuity of a normative system since the time prior to effective sovereignty up to the present.
79 Dr Clarke was instructed to report on the connection of the Indigenous respondents to Kariyarra country. He addressed that issue in the Clarke 2015 report in five pages. Most of the balance of the substance of the report of 54 pages was directly and indirectly focused on the question whether the applicants were entitled to rights in Kariyarra country.
80 Dr Clarke approached that latter question in the Clarke 2015 report by outlining the migration of inland people particularly the Njamal in the 20th century and describing that they took over some of the country of the coastal people including the Kariyarra. In several succeeding sections of the report he explained the major cultural differences between the coastal people and the immigrants, namely, in initiation practices, language and kinship systems.
81 Having set that scene, Dr Clarke posed the following question:
Given that much cultural change has occurred in the Pilbara since European settlement, there remains the question of whether the regional land ownership system had the facility to transfer country from Kariyarra people to incoming desert peoples?
82 The answer is lengthy but comprised Dr Clarke's response to Dr Palmer's conclusion that cognatic descent was the basis for the acquisition of rights to land. The passage commencing at page 28 is as follows:
From the early anthropological work on the Kariyarra it was stated that ownership to country was primarily handed down along the patriline. Radcliffe-Brown said that:
Membership of the local group is determined by descent in the male line; that is to say, a child belongs to the local group of its father and inherits hunting rights over the territory of that group.
In spite of the importance of deriving identity from the father's country, it was recognised that some secondary rights came through the mother. Secondary rights would enable limited access to sites and resources, but with decisions concerning country restricted to those who possessed primary rights as land owners. While Radcliffe-Brown eventually made some modifications to his rigid model of Australian Aboriginal kinship systems, he did not change his view on the primacy of the patriline in regions such as the Pilbara. He did, however, come to acknowledge a broader set of rights that existed outside the immediate concerns of the descent group (clan or his "horde"), and stated that:
… in all instances of patrilineal succession, some rights are also transmitted through the mother. Thus in the Kariera tribe a man has certain quite important rights over his mother's horde, over its individual members, and over its territory.
The separation of power for decision-making processes relating to land is a situation that commonly occurs in Australian Aboriginal societies. For instance, in many of the communities in the Northern Territory a person is considered to be the 'owner' or 'boss' of their father's estate, while at the same time being the 'manager' or 'policeman' of their mothers' country. As the use of the Aboriginal English names implies, people have a different relationship with each of their parent's country, with 'ownership' restricted to the father's estate. But in the contemporary Pilbara, both Palmer and Morton have argued for the existence of a much more flexible situation for Kariyarra land ownership. Based upon his 1970s fieldwork at the Aboriginal settlement in Yandeyarra, Palmer has argued that the prevailing notion of Kariyarra 'inheritance' was 'ambilineal', that is with recognised descent from all four grandparents and 'rights and ritual obligations with respect to land' being traced through both father's side and mother's side. This would presumably allow or even encourage individuals to strategically identify with whatever cultural group gave them maximum benefit as each issue arose. These views of Palmer and Morton represent a significant modification to Radcliffe- Brown's above statements.
Palmer stated that in Kariyarra country the 'rights and obligations of a landowner are potential', and could be 'realized through a number of ritual inductions'. Apart from one case, Palmer did not attribute ownership of the estates surrounding Yandeyarra to Kariyarra people, and the sole Kariyarra owner was 'generally regarded as being one of the last surviving members of the Gariyara [Kariyarra] socio-linguistic group'. The population living on the former mission at Yandeyarra was predominately Nyangumarta and Nyamil, and by 2005 there were over 300 people living in the settlement. While Palmer's account of estate group relations at Yandeyarra can be seen as evidence for the continuing operation of an estate system and a wider group maintaining underlying title and allocating rights in country, it must be noted that the wider group he described was not representative of the Kariyarra people but rather composed of the 'riverline tribes' who were dominated by the numerically superior Nyamal people. In line with Palmer's 1970s work, Morton in general accepted the notion of a 'pan-riverline identity' for modern Aboriginal people living within the Kariyarra claim area. It is this broader group that he considered to be land owners of the area, stating that 'While Kariyarra people continued as an identifiable language group connected to a specific riverline territory, the group appears to have suffered some loss of influence in the regional system'.
During my fieldwork I was able to further investigate the contemporary situation regarding Kariyarra land ownership with the descendants of Mary Yinbung (Todd/Dann/Attwood/Mason claimant group). I found that among them there was no support for the flexible set rules for determining cultural identity as described by Palmer and Morton. The people I was able to interview were all adamant that Kariyarra descent was only 'through the blood line' and was without the possibility of primary links to country being made through either adoption or birth site. They asserted that cultural identity in the regional system was primarily along the male line, although in cases when the father was not an Aboriginal man it could be determined via the mother at that generation alone. While accepting that a non-Kariyarra person could have some secondary role in looking after Kariyarra country via their matriline or by the possession of ritual knowledge, it was said that such an individual could never become a land owner. They rejected outright the idea that a person had two or more choices (i.e. via parents and grandparents) when establishing their primary link to a local group and its country. For instance, they believe that if someone has a Nyamal father then they must take their primary link as being with Nyamal country further inland, even if they were born within Kariyarra country. This descendant group consider that these rules were those that their ancestor Mary Yinbung had enforced as a Senior Custodian ("Queen') of the Kariyarra in the early 20th century. They also believe that the Creation ancestors of the inland groups, including the Nyamal, are not Kariyarra. My following comments upon each of the purported Kariyarra claimant families are framed by these notions of identity.
[Footnotes omitted. Emphasis added.]
83 Dr Clarke then concluded, after discussing the applicants' family groups:
In the case of Tommy Anderson as the apical ancestor of one group of claimant families (Todd/Dann/Attwood/Mason), the available evidence provided here indicates that he was probably a Kariyarra man who was an owner of an estate within the southeast portion of the claim area. The findings of Morton and Palmer are broadly in agreement with this. The difference between my opinion and theirs is over the extent to which other family claimant groups are also connected to the Kariyarra claim area. Today, Tommy Anderson's descendants do not accept any notion that descent groups that they identify as 'newcomers' to their country (i.e. the Nyamal, Yindjibarndi and Palyku) have any status as land owners within the Kariyarra claim area - specifically areas to the west of Mount Edgar, such as Wodgina, Woodstock and Abydos stations. A finding from my fieldwork was that rather than defining an 'estate' that they traditionally owned, the Tommy Anderson group conceive the totality of their 'country' to be the stations within the Kariyarra claim area where they and their ancestors lived, worked, died and were buried. Analysis of the data provided in this report supports their firm belief that their relationships with country have strong links to the classical Kariyarra culture. Robert Dann traces his detailed knowledge of Kariyarra landscape-based mythology as having come through his maternal uncles, none of who were interviewed by Morton or Palmer.
84 In the Palmer 2017 report, Dr Palmer responded to the Clarke 2015 report. On the question whether descent was patrilineal with limited exceptions or cognatic, Dr Palmer made three points.
85 First, contrary to the information Dr Clarke said he obtained from the Indigenous respondents, Dr Palmer referred to discussion he had in the course of preparation of the Palmer 2013 report, with the Todd, Dann, and Lockyer family members including the Indigenous respondents on 13 and 14 April and 11 - 13 September 2013 recorded in ten pages of his field notes. Dr Palmer then explained:
28 … The matter of the descent of rights was explored in some detail and I recorded what I was told by those with whom I worked. According to the account provided to me, rights to country could be gained through either matri or patrifiliation. Two of the children of Ignatius Dann appeared to place greater priority on their mother's country (Kariyarra) than on that of their father's country (Nyulnyul). There was then by this account no impediment to obtaining and exercising vigorous rights within your mother's country.
86 Second, Dr Palmer recalled the reference in the Palmer 2013 report to the debate among anthropologists about the acquisition of rights to land which followed the work of Radcliffe-Brown and the more accepted view that patrilineal descent was not the only means of acquiring rights to land. Dr Palmer observed that Dr Clarke relied on Radcliffe-Brown's view without reference to or engagement with the different views expressed by later anthropologists involved in that debate.
87 Third, Dr Palmer raised questions about the exception rule propounded by Dr Clarke as follows:
34 The 'exception rule' as defined by Dr Clarke is particularly significant for the descendents [sic] of Tommy Anderson. For this now extended family all present-day descendents [sic] trace ancestry to Tommy's daughter Mary Yinpung (aka Mary Todd). Thus if the rule of exclusive patrilineal descent were to be applied, none of the descendents [sic] of Tommy Anderson could be regarded as claimants.
88 That conclusion followed because Mary Yinbung had eight children, seven with a European, George Todd, and one with another European, Ronald Parker. Dr Palmer continued:
35 My difficulty with Dr Clarke's 'exception rule' is that it appears to evoke cognation in just one instance, which is undoubtedly to the benefit of those with whom he worked in terms of the pressing of privileged rights to Kariyarra country. There is no examination of what to me would appear to be significant questions of consistency. If rights to country gained via the mother are lesser rights than those gained from the father (as Dr Clarke argues) why should this not be the case for the descendents of Mary Yinpung as it is (according to Dr Clarke's argument) for other Kariyarra claimants? What is the basis for the exception rule in pre-sovereignty normative systems, where biological paternity occasioned by miscegenation was unknown? Where does Dr Clarke present an argued case for the exception rule being a part of customary process? The exception rule altogether neglects the existence of social fathers who, in my experience, frequently raised children fathered by European station workers, whose identity is sometimes unknown, and treated them as their own. Finally, the question of successive European paternity is not addressed. If the rule applies to 'that generation alone' what is the rule if the female child of a union between a Kariyarra person and a European has children with a European. Is the exception rule applied again so establishing matrilineal descent over two generations?
[Footnotes omitted.]
89 Dr Palmer then observed that under the descent rule as propounded by Dr Clarke, some of the Indigenous respondents would not qualify as landholders. Dr Palmer noted that Dr Clarke did not provide genealogies for the Todd / Dann family, but, based on the genealogies attached to the Palmer 2013 report, the father of the Indigenous respondents Gene Smith, Ms Mary Attwood, and Mr George Dann was Ignatius Dann. He was a Nyul Nyul man and hence those Indigenous respondents would not qualify along the patriline and would not fall within the exception.
90 Dr Palmer concluded thus:
42 I have found Dr Clarke's exposition of the exception rule for a European progenitor quite unsatisfactory. In my view Dr Clarke has failed to explain how the rule might operate in some instances and has provided no evidence that it is based upon or rooted in pre-sovereignty systems. Rather, in my view, it provides evidence that cognatic descent (and in this case matrifiliation) is not only a part of the manner whereby claimants gain rights to country, but arguably and based on a proper and thorough examination of the earlier ethnography, on a system likely to have been in evidence at the time of sovereignty and before. The application of the exception rule would appear to owe its exercise more as a means to provide legitimation for the assertion of exclusive rights to Kariyarra country by the Tommy Anderson descendents, rather than as a feature of a customary normative system.
91 Dr Palmer also took issue with the way Dr Clarke dealt with the rights obtained through the matriline. Dr Clarke accepted the view of Radcliffe-Brown that important rights were acquired in the mother's estate. Dr Clarke said that those rights were secondary. They enabled access to sites but "decisions concerning country [were] restricted to those who possessed primary rights as landowner". Dr Palmer responded thus:
48 Dr Clarke provides us with no details of the bases upon which he reaches the conclusion about the distinction he asserts exists between primary and secondary rights and no basis upon which he reaches his conclusions about the nature of the rights primary and secondary. Instead he employs the passive, 'it was recognised that' as justification of his views relating to primary and secondary rights, begging the question as to what or who provided this recognition. That decision making was reserved to primary rights holders and limited access was permissible for secondary rights holders is substantiated by no scholarly references whatsoever, so once again the bases for Dr Clarke's views are not disclosed. Dr Clarke accepts that Radcliffe-Brown did modify his 'rigid model' but not, apparently, 'in regions such as the Pilbara'. Again Dr Clarke provides no basis for reaching this conclusion which would appear to be his own idea entirely. Indeed Radcliffe-Brown in the passage cited by Dr Clarke (Radcliffe-Brown 1952, 36) and quoted by me above (see paragraph 29) specifically identifies the Kariyarra as being a 'tribe' where rights were gained via matrifiliation, evidently contradicting Dr Clarke's opinion that the rigid model prevailed for Radcliffe-Brown in 'regions such as the Pilbara'.
92 And Dr Palmer concluded as follows:
55 … In my view Dr Clarke's argument relating to primary and secondary rights does not disqualify matrifiliates from being potential native title holders but rather supports their acceptance as such by defining for us the actual rights they enjoy (Clarke 2015, 29). His apparent acceptance of the incidence of secondary rights amongst those families he seeks to disqualify in fact confirms their status as potential native title claimants. Dr Clarke has avoided such a conclusion by employing the term 'ownership' which obfuscates a proper understanding of the incidence and exercise of rights. According to his own account both matri- and well as patrifiliates are in fact 'owners' in so far as they exercise rights to the country they claim. Dr Clarke has erroneously utilised his undefined term 'ownership' to create a distinction in the exercise of rights to country which is neither supported by the ethnography nor by a proper understanding of how rights to country are manifest. …
93 In Clarke 2017 report, Dr Clarke replied to some of the observations made by Dr Palmer in the responsive Palmer 2017 report.
94 First, Dr Clarke referred to references in the writings of John Withnell (Withnell 1901) and Daisy Bates (Bates 1901) to the passing of rights to talu and totem sites along the male line. The references are superficial and did not engage with the lengthy and detailed analysis of these two writers made by Dr Palmer in his original Palmer 2013 report. If these writers were important to Dr Clarke it is hard to see why they were not included in his initial 2015 report. In truth, Dr Clarke's references are beside the point. They do not bear on the issue of rights to estate areas but rather to the much more limited talu and totem sites. In any event, they did not engage with Dr Palmer's assessment of the quality of the work of those early observers, neither of whom was an anthropologist.
95 Next, Dr Clarke addressed Dr Palmer's criticisms of the exception rule. Initially, Dr Clarke stated that he had been simply reporting the views of the descendants of Tommy Anderson. Then, he referred to other instances in Aboriginal Australia to matrifiliation being used to deal with irregular marriages. The treatment lacked detail and failed to respond to the detailed criticisms made by Dr Palmer.
96 Then, Dr Clarke returned to a theme of his initial 2015 report, not particularly relevant to the reply, that ambilineal descent is a feature of inland cultures. A common failing of Dr Clarke's reports is that they do not clearly flag the path of reasoning. The reader is left to surmise the point of some of the sections. In this part of his reply, although not stated, the suggestion seems to be that the ambilineal model comes from the inland people who migrated into the coastal areas. Thus, Dr Clarke may have intended to suggest that ambilineal descent is not a traditional rule of the Kariyarra people, but rather an indication of the non-Kariyarra descent of some of the applicants.
97 Finally, Dr Clarke asserted that the evidence of Ms Irene Roberts and Ms E Williams given in the preservation hearing in 2013 expressed a preference for the male line in the determination of rights to land. However, Dr Clarke's references are selective quotations which take no account of the clear understanding expressed by both witnesses that rights to land may be acquired through either the male or female line. That evidence is dealt with in these reasons for judgment at [36]. Indeed, as the evidence was given in 2013, it is surprising that Dr Clarke did not refer to it in his initial Clarke 2015 report if it was supportive of the case of the Indigenous respondents.
98 In May 2017, when the conference of experts was conducted, Dr Clarke expanded the categories in which matrifiliation applied beyond the case of a non-Aboriginal father under the traditional laws presently observed by the Indigenous respondents. To question six in the record of the conference of experts Dr Clarke stated:
Matrifiliation was part of the Kariyarra laws and customs pre-sovereignty. I consider that the Indigenous Respondents' position (that matrifiliation is only accepted in the instance of a non-Aboriginal father) reflects a 'traditional' system to the extent that it reflects a strong preference for patrifilial connection.
However, matrifiliation is also accepted as part of the traditional/customary system in more instance that [sic] just the instance of a non-Aboriginal father, such as of a deceased or absent Aboriginal (non-Kariyarra) father, socialisation to the mother's side of the family through life experience and knowledge gained, location of a thalu site in their mother's country, and others.
I also accept that people could have (under the traditional/customary system) connection to more than one estate at the same time.
By the logic of the Indigenous Respondents which would exclude matrifiliation where there is an Aboriginal father, I agree that some of the descendants of Tommy Anderson would not acquire rights and interests.
[Emphasis added.]
99 The final paragraph accepted the point made by Dr Palmer in the Palmer 2017 report but to which Dr Clarke did not respond in his Clarke 2017 report in reply.
100 There are several aspects of the cross-examination of Dr Clarke which bear on the issue of whether descent was reckoned by the patriline subject to certain exceptions, or whether descent was reckoned cognatically.
101 The first aspect of Dr Clarke's cross-examination concerned the instructions which Dr Clarke received from the Indigenous respondents about their understanding of the traditional laws concerning descent.
102 After Dr Clarke gave evidence that he had the Palmer 2013 report before he wrote the Clarke 2015 report, but not before he conducted the field work, the following exchange occurred:
MR WRIGHT: … But did you at any point before you prepared and finalised this report, did it occur to you that there was a disconnect between what you were saying about the system being patrilineal according to the Tommy Anderson descendants, and what Dr Palmer had reported that he was told from them?
DR CLARKE: Yes, it was - it was quite apparent there was a difference between the account of his - his conversations with the family, and his interviews with the family and mine. Yes, so I was aware of the difference.
MR WRIGHT: Yes. And did you do anything to try and investigate that difference?
DR CLARKE: Well, it was certainly something I discussed with - with Pat [Mason] and, as I said, with other members of her family in the background from their Port Hedland group.
MR WRIGHT: This was the phone call that's referenced in your field notes?
DR CLARKE: Oh, that and probably several others. I mean, it was a very - it was a very fast process from the moment I did the fieldwork and received the reports and doing my first report, so, everything was happening sort of fairly quickly. But I did speak to Pat Mason and through her others about that - about that issue, and they said - - -
MR WRIGHT: And do you recall what she told you?
DR CLARKE: Well, they - they confirmed that I had the right version and Dr Palmer had recorded it incorrectly, or - or that he was incorrect.
MR WRIGHT: And so when you say that you had the right version, had they had a draft of your report by then?
DR CLARKE: No. I mean I - the right version meaning that I've said that - you know, I've put the question is it father to father to father? And, you know, they - you know, they confirmed it that that was - that was the system.
MR WRIGHT: And when you say "they", it was Pat Mason but with others in the background?
DR CLARKE: That's correct.
MR WRIGHT: Yes. And you didn't - you haven't kept a note of those conversations, or that conversation?
DR CLARKE: Well, I - the - I do have a note of the conversation on 25 August, but I don't have any other - I've checked my field notebook and I didn't - as I said, I was - and I can't remember what the deadline was, but there was yes, a lot of pressure to get things done quickly. And I was working on the report and I was using all of that archival material and including material Pat had sent me.
…
MR WRIGHT: Yes. And just to summarise, but you didn't investigate - or, sorry, you did investigate with them what they previously told Dr Palmer?
DR CLARKE: Yes, well, it's come up several times, come up several times over - well, at that time and even this week with informal conversations that - you know, the difference between, you know, Dr Palmer's record of his conversation, which was earlier than mine by probably at least two years, and my conversation with theirs in 2015.
MR WRIGHT: So, is it your understanding that their view changed between 2013 and 2015?
DR CLARKE: Oh, I'm not in any position because I wasn't there at the - at the meeting with Dr Palmer. I know we had a brief discussion about it at the conference of experts, and Dr Palmer at that conference of experts assured me of the veracity of his field notes and I assured him the veracity of mine. In terms of - oh, we didn't - we didn't delve too much into speculating why, so I'm not - I'm not in a position of criticising another anthropologist's field notes and - - -
103 Dr Clarke accepted that the only record of discussion on the issue was in his field notes which recorded a phone conversation with Ms Patricia Mason on 25 August 2015. The entry stated:
Country through father's line only.
104 In cross-examination, in the extract set out in [49] of these reasons for judgment, Ms Patricia Mason gave evidence about what she told Dr Clarke.
105 As explained in [51] of these reasons for judgment, that evidence, read in context, was evidence that Ms Patricia Mason relied on descent from the male apical ancestor, Tommy Anderson, but otherwise allowed for descent along the male or female line.
106 The second aspect of Dr Clarke's cross-examination was his assessment of the evidence of the Indigenous respondents concerning patrilineal descent given in the course of the hearing of this proceeding. The following cross-examination addressed the issue:
MR WRIGHT: Yes. Having heard the evidence now this week of the Tommy Anderson witnesses, does that cause you to change your view as to what their understanding is of traditional law and custom?
…
MR WRIGHT: In terms of the way you couched the conclusion in your report, that - and I'm paraphrasing, that the people you worked with were adamant that the relevant system was a patrilineal system, that doesn't - my proposition to you that I invite you to comment on, that's not consistent with the evidence that you've heard this week from those people?
DR CLARKE: I sat through and listened to that evidence, and I'm not - I'm not entirely sure it was, sorry, inconsistent. Certainly what I was hearing was father to father to father, but of course as emerged with this family that I was putting to them well, that's clearly not the case with your family, and then they were - then they were coming up with alterations to that and giving reasons why. So - so, when members of the family in this last week have been asked that question, well, clearly they know that their family doesn't go father to father to father right through to Tommy Anderson. And so, the answers that I've heard are consistent with the truth behind that. And in terms of patrilineal, it's a word that would be unlikely to be used perhaps or Pat might be - might use it because of her research, but other family members wouldn't necessarily use an anthropological term like that.
MR WRIGHT: Yes.
DR CLARKE: So, look, I have heard - and I would say that there's not a clear- not a clear statement that I've sort of picked up, and in terms of saying that it's not the case that in terms of their belief, it was what - it was what I heard back then and what I wrote into the report. So, I stand by my - my report that I was recording what I was being told and what I believed or what I'd took to be the - or could demonstrate to be the case in terms of the beliefs of the descendants of Tommy Anderson.
MR WRIGHT: Yes. And so, just to be clear of where I started was paragraph 69 of your 2007 report, you use the word there that the people you conducted fieldwork with were adamant that under normal circumstances the primary connection to Kariyarra country is passed from father to child on the patriline. So, you're saying that's an accurate reflection of what you were told when you did that fieldwork in 2015?
DR CLARKE: That's correct.
…
MR WRIGHT: … And, again, just to be clear, you're saying based on what you've heard this week, the evidence from the witnesses in the witness box, that doesn't cause you to want to change what you said?
DR CLARKE: No. No, it doesn't.
[Emphasis added.]
107 In these exchanges Dr Clarke took a literalistic approach to answering the question. On the face of the exchanges, he said that his report correctly recorded what the Indigenous respondents told him. Nothing in their evidence suggested, so he thought, that the Indigenous respondents had not told him that descent was patrilineal. That is inconsistent with the evidence of Mr George Dann which directly contradicted the information in the report. Whilst the evidence of Ms Margaret Attwood, Ms Patricia Mason and Ms Shirley Lockyer was not always crystal clear, a fair reading of their evidence does not support the patrilineal model proposed in Dr Clarke's reports. Dr Clarke's response should also be taken on a broader level to be a statement that his assessment of the evidence of the Indigenous respondents did not change his view that rights to land can only be acquired on the patrilineal model espoused in his reports.
108 The third aspect of Dr Clarke's cross-examination relates to his field notes recording the genealogy of the Indigenous respondents. The field notes show Molly Todd as the mother of nine children, including the Indigenous respondents from a father noted as "European Dann". The genealogical charts appended to the Palmer 2013 report show that Molly Todd had children from three men. That chart shows that the father of Eugenia Smith, Mary Attwood and George Dann was Ignatius Dann. Ignatius Dann was a Nyul Nyul man. The information in Dr Clarke's field notes is wrong. The error went to a matter of central relevance to Dr Clarke's role acting on behalf of the Indigenous respondents. His field notes for the first day in Port Hedland when he was met at the airport by Ms Patricia Mason and Mr Robert Dann recorded:
My report will hopefully resolve their Kariyarra identity and eliminate the 'newcomers' [Njamal] who have usurped the status of the Todd family as the sole traditional owners from Kariyarra country. Some antagonism towards John Morton and Kingsley Palmer, who they believe wrote reports aimed at supporting the YMAC [Yamatji Marlpa Aboriginal Corporation] political line.
109 Dr Clarke's understanding was that those three Indigenous respondents had a European father and that qualified them through the matriline under the descent rule propounded by Dr Clarke.
110 It is improbable that the incorrect information recorded was provided by the Indigenous respondents. In the circumstances, it is more likely that the mistake demonstrates either a lack of care arising from the pressure of time in which Dr Clarke operated or a propensity to take on the Indigenous respondents' agenda to "eliminate the new comers" in favour of the Indigenous respondents, or both.
111 It is noteworthy that Dr Clarke did not respond in the Clarke 2017 report after Dr Palmer had pointed out the error in the responsive Palmer 2017 report. Dr Clarke made an oblique concession in the record of the conference of experts.
112 The matter was taken up in cross-examination as follows:
MR WRIGHT: And that genealogy shows Molly Todd has having a single partner, Dann, European, from whom a large number of people are descended?
DR CLARKE: That's what my field note says.
MR WRIGHT: Yes. And you understand that that's not correct?
DR CLARKE: I understand that - well, at that point I understand it's not correct. If we take that relationship as being a biological one, then clearly Molly had other partners and, therefore, some of Pat's siblings are technically half siblings, so a couple of them are fully siblings, so there's - yes, there's been evidence on that more complex family tree than the one that I have here.
MR WRIGHT: Yes. And the reference to Dann being European is also an error. Do you now understand that?
DR CLARKE: Well, I - I understand that it's - I understand that it's not correct. In terms of being an error, I - with my field notes I was taught by Tindale when I first came to the museum to only ever write on the right-hand side and number each page, but use the left-hand side for either adding footnotes later on or, if I'm indeed using the field note - sorry, the field book as, you know, the very first source when I'm actually there as distinct from writing on scraps of paper and putting it in later, then I write that information on the left.
So, in terms of reading my field notes, the narrative will jump from 119 through to 121, so the pages on the double photocopy is on the left and the - you know, the even numbers in other words - - -
MR WRIGHT: Yes.
DR CLARKE: - - - they are a mixture of things that I added later when perhaps the encounter was over, and I'm in the car or later that night, but certainly still on the same day, otherwise I'd date it. But yes, that's information that's still there.
MR WRIGHT: So, that was your understanding of the genealogy based on what you think?
DR CLARKE: That's right. And that information I was - extracted from Pat and Robert when I caught up with them from - you know, for dinner that night that I'd flown in from Adelaide via Perth.
MR WRIGHT: Yes.
DR CLARKE: So, that was - that was information that I was sort of putting in there. So - - -
MR WRIGHT: And - - -
DR CLARKE: - - - in terms of an error, I mean in my experience, if you the one family tree three or four times you're likely to have three or four different versions. But I accept that with - or I agree that the information shows that that's not a correct representation of the relationships between Molly Todd and Dann who's not technically European in the sort of non-indigenous sense.
MR WRIGHT: Yes.
DR CLARKE: So, I accept that's - and it's not correct. But that's the information as I believed I heard it at the time.
MR WRIGHT: Yes. When you wrote your 2017 report, which was a response to Dr Palmer, at paragraph 112 - - -
DR CLARKE: Yes, I have paragraph 112.
MR WRIGHT: Yes, do you just want to quickly read that just to refamiliarize yourself with it?
DR CLARKE: Yes, well, I'm acknowledging that there's - you know, there's a difference between our two accounts of the family - the family tree.
MR WRIGHT: Yes. And you didn't go back and recheck that information in light of Dr Palmer's criticism?
DR CLARKE: Well, I - I take on board - I take on board the fact that - that it appeared to be wrong and certainly during the conference of experts, you know, we spoke quite openly about that.
MR WRIGHT: Yes.
DR CLARKE: By the time - by the time I'd put this report in, I was, you know, in a position of, you know, being able to do, you know, more research. So, at the time that I've written this paragraph I didn't have the information in front of me.
MR WRIGHT: Sorry, this is your 2017 report?
DR CLARKE: That's correct.
MR WRIGHT: So, you'd already had two years, well, give or taken off?
DR CLARKE: Well, not - not really. The history of my whole involvement of this - with this project is two or three days or five days here and there, so - - -
MR WRIGHT: Yes, but you've had plenty of time to check the information before you rebutted Dr Palmer's criticism?
DR CLARKE: Well, I didn't - I haven't gone into detail which version was right here because, in effect, it was beside the point with the criticism because I'd already, you know, made the position clear that, you know, there was - you know, there were points where one can drive descent or connections, you know, to country via the female line, so - - -
MR WRIGHT: Yes, but you were proposing that that was in a circumstance where there was a non-Aboriginal father, and Dr Palmer was pointing out that that didn't fit the circumstances of this group.
DR CLARKE: Now, you might have to take me to it, but did I actually say non-Aboriginal father? I mean the point I was trying to make was that it was someone who didn't have country, so whether someone was - and I know this came up at the expert conference, whether - whether it was an indigenous person from the Torres Straits Island or a German person, or someone perhaps even from the Kimberley, if it came from an area which is far enough away, it didn't really - it didn't really change my model of patrilineality because it was someone who did come to - let's say and put it in the words of they didn't come to the table with any connection to country, and in the region where people were living. And that was the - that was the point and that was the - and I'm trying to avoid the use of the word "exception" because that then became a word that we had a lot of debate on.
MR WRIGHT: Yes.
DR CLARKE: But that became - I will use it. That became the exception that when someone was living on - on country, then if they had a father who's either no longer there or was there but didn't have any connection to country in the Pilbara region, then, you know, at that point people were taking, you know, their connection to country via the mother's line.
MR WRIGHT: Yes.
DR CLARKE: So, that was - that was what I was arguing in this report. So, I didn't - I didn't drill into which was the actual correct version. I did actually put Kingsley's version down here, so I wanted it acknowledged, but I don't actually say here that he's incorrect. I left it open. So, I feel I've done the academically correct thing in that I've acknowledged that Dr Palmer had a different version, and essentially what that difference was, that - that the man Dann was in his - the version he recorded wasn't technically European.
MR WRIGHT: Yes. So, if we do just take then that family line, and if we take, say, the line going from Tommy Anderson to Mary Yinbung, to Molly, and then to Mary Attwood and presumably her children, would you agree that that demonstrates a claim to country based essentially through the matriline?
DR CLARKE: Yes, well, there's - there's - there's at least two, or am I saying three, you know, connections to the matriline, so it's matrifiliation.
MR WRIGHT: Yes. And - - -
DR CLARKE: It's not - it's not a recognised matriline but it is a series of -you know, the choice has been made to go at, was it, two - two generations or three if we count Mary's children. A decision has been made at that generation level to - to go with the mother's line because the father was either European or didn't have any country in the Pilbara.
MR WRIGHT: Yes. And - - -
DR CLARKE: I think I agree with what you're saying.
MR WRIGHT: Yes. And it wouldn't be fair, would it, or it wouldn't be accurate, would it, to describe that as being a patrilineal descent with exceptions?
DR CLARKE: Well, the - the rules of - or the custom of receiving country is - is one thing, the actual playing out of it is another. So, I believe that I've covered the - what the ideal system is. I've also, I think, earlier in giving evidence acknowledged that - or I'll acknowledge it now, if I haven't, that increasingly the patrilineal model has been under pressure just by the sheer out- marriage of whether the - of Pilbara people, whether they've got partners who are European or Afghan or, indeed, indigenous from some other part of Australia which is outside of the Pilbara. So, I'm talking about the system without having that system sort of judged by the actual statistical reality of it, if I can put it that way.
MR WRIGHT: Yes. Yes. Well, can I put it to you that the system was one that really you came up with and one that wasn't supported by any field data that you had?
DR CLARKE: Well, no, the system - the system that I have there is one that was put to me as the ideal system by the family of Tommy Anderson's 40 descendants.
[Emphasis added.]
113 The Clarke 2015 report recorded that Dr Clarke's clients did not give him permission to include their family tree in the report. In cross-examination he explained:
DR CLARKE: Yes, well, there were quite a - there were quite a few things that after I wrote the report and talking to them that I couldn't put in. They were particularly worried about GPS for sites, but they were also - didn't want their family tree, so that's a correct - that's a correct statement. And I received that not via email, it would have been a phone call not to put it in. And I - I can't remember whether it came via Mr Rumsley, but certainly I had - I had instruction whether it was from the client in Pat Mason or Mr Rumsley that - - -
MR WRIGHT: Yes.
DR CLARKE: - - - I think at this stage Mr Rumsley was - was involved in terms of the report being produced and making sure that it was in keeping with his client's wishes.
MR WRIGHT: Yes. Well, can I suggest to you that it's not appropriate as an independent expert to allow the informants to dictate that you would not put in your report something as fundamental as a genealogy?
DR CLARKE: Oh, I - no, I disagree there. I think when writing reports, as long as I acknowledge, as I have done, that I've been instructed not to put it in, I - I've - I believe that's professional. And I've drawn the attention to the (Resis) report that - that her family tree is not forthcoming. So, whether it's ideal from my purposes trying to do the anthropologist's job is another question, but that was my instruction and I adhere to it.
114 In order to produce the Morton report, Dr Morton conducted a field trip from 11 - 18 October 2011, and 28 October - 5 November 2011. On that trip he interviewed many of the applicants and the Indigenous respondents and their families. Of particular relevance is that he interviewed the Indigenous respondents and their families. This occurred on 16 October and 2 - 4 November 2011 at Port Hedland and at the Boodarie Station.
115 The Morton report addressed the culture and rules of the Kariyarra people at sovereignty by reference to the early writers. Dr Morton gave particular attention to the work of Radcliffe-Brown 1913, but also discussed later ethnographic work of the Wilson (Wilson 1961), and of Palmer in the 1970s as well as the later interpretations by Sutton (Sutton 2003). Of particular relevance to the present discussion, Dr Morton said:
35. Radcliffe-Brown's general model of Aboriginal rights and interests in land, initially worked out in relation to his Pilbara fieldwork, was subject to much criticism during the second half of the twentieth century. Anthropologists now generally maintain that:
a) his use of concepts, such as horde and clan, were confused and confusing;
b) he sometimes ignored, sidelined or dismissed counter-evidence;
c) he increasingly tended towards abstraction and oversimplification;
d) his original data were of relatively poor quality;
e) his generalisations were far from fully supported by better quality data from around Australia.
36. There is no doubt that Radcliffe-Brown accurately identified patrilineal descent as a key principle of Kariyarra group formation. However, his overwhelming concentration on the patrilineal clan as the land-holding unit and the estate as the unit of landed property would now be regarded as inadequate. Matters that Radcliffe-Brown treated as somewhat peripheral (like rights in mother's country) or seemingly irrelevant (such as conception site or 'birthplace', or being welcome in the country of a spouse) might now be explored as vital aspects of the larger system of landed rights and interests.
[Footnotes omitted.]
116 Dr Morton expressed the view at [48] that recruitment was by bilateral inheritance, that is to say, one could belong to the land owning group through either parent or both. He said at [46]:
Although Radcliffe-Brown overwhelmingly emphasised patrilineal descent in land ownership and the inheritance of estates, it is in my opinion unlikely that this was a uniform rule articulating rights and interests in local group areas. Apart from Radcliffe-Brown's own documentation of rights in land gained by matrifiliation (paragraph 28), he also states that some estates were characterised as 'half-Kariyarra, half Ngarluma' (paragraph 33). This situation would not arise unless estate groups had the multiple pathways for recruitment (minimally both patrifiliation and matrifiliation) also operative in the inheritance of language. This implies that border areas would be in some measure shared country.
117 It is significant that these views were expressed following consultation by Dr Morton with the Indigenous respondents and their families.