Assessment of Connection to Country
25 The applicant provided the State with the following material in support of the Darlot native title claimants' connection to, and occupation of, the Darlot claim area:
(i) an anthropological report of Dr Daniel Vachon dated July 2020;
(ii) a second anthropological report of Dr Daniel Vachon dated November 2020;
(iii) a third anthropological report of Dr Daniel Vachon dated February 2021;
(iv) an affidavit of Ms Geraldine Hogarth dated 13 August 2021;
(v) an affidavit of Mr Travis Tucker dated 13 August 2021;
(vi) an affidavit of Ms Joan Carol Tucker dated 22 September 2021;
(vii) an affidavit of Ms Pearl Scott dated 24 September 2021;
(viii) an affidavit of Ms June Harrington-Smith dated 24 September 2021; and
(ix) an affidavit of Ms Verna Voss dated 24 September 2021
(collectively, the Connection Material).
26 The Joint Submission explained that the applicant and the State adopted an iterative process for dealing with the Connection Material where meetings where held, and correspondence exchanged between the provision of each anthropological report so that each supplementary report was targeted towards addressing remaining issues identified by the State.
27 In addition to the Connection Material, the applicant provided the State with earlier anthropological reports in relation to the Darlot Application prepared by Professor Neale Draper and Dr Brendan Corrigan. Anthropological reports by Dr Heather Lynes and Ms Sarah Bell, and Dr Vachon's responses to the content of those reports, were also considered by the State during the connection assessment process.
28 The Connection Material as outlined in the Joint Submission, supports the conclusion that the native title rights and interests in the Determination Area are derived from a body of traditional laws and customs maintained and transmitted from generation to generation since prior to the declaration of British sovereignty in Western Australia in 1829. Effective sovereignty in the Determination Area occurred between 1890-1905, reflecting the first gold rush in the region.
29 As the Joint Submission states, the Darlot native title holders like their ancestors, are members of the Western Desert society and follow the system of traditional laws and customs that is shared with other members of the WDCB. This society is characterised by 'multiple pathways' to acquiring rights and interests in land and waters and the fundamental importance of thukurr in governing societal and political relations between its members.
30 The Darlot native title holders hold rights and interests in the Determination Area under their system of traditional law through the 'multiple pathways' system of the WDCB. Birth within the claim area and/or descent from an ancestor born on the claim area are the principal sources from which rights and interests in the Determination Area are derived. However, there are other avenues through which people gain rights in country, most notably long-term association with the Determination Area and responsibility for its religious geography that are recognised in accordance with traditional laws and customs.
31 By reference to the Connection Material, the Joint Submission states that the Darlot people share with their neighbours to the north and east a belief in the thukurr. Observance of the thukurr requires the Darlot claimants to maintain and protect significant sites in the Determination Area including places imbued with spiritual or cosmological significance. Such places include birth and burial places of the claimants' forebears as well as important thukurr sites, and law grounds of various kinds. It is common for important thukurr locations to be associated with age and gender prohibitions which highlight the importance accorded to transmission of cultural knowledge and ongoing respect for the traditions held by the senior generation.
32 Further, as the Joint Submission recounts, the word thukurr, what the eminent anthropologist Ronald Berndt called the 'physiographic mythology', has been found to be a key cultural concept for people throughout the Western Desert, including the Darlot people. Among the Darlot people, thukurr has both an ontological and aetiological role in the origin and emergence of geographic forms. Dr Vachon identified that of the several thukurr known to the Darlot native title holders as being associated with the Determination Area, two stand out: Wati Kutharra and Kumpuwarn. Wati Kutharra is a narrative, song-line and part of those ceremonies which are directed at the transmission of knowledge and socialisation of men. One of the key cultural practices among the Darlot Mob, introduced by Wati Kutharra, concern the rites of male initiation. Kumpuwarn is regarded as 'women's business' and it concerns the regeneration of the land through the flow of water. As the Joint Submission stated, both thukurr concern traditions and practices directed towards the ongoing vitality of the Darlot Mobs' land and their society as they know it. They also circumscribe the cultural geography of the claim area to a considerable extent.
33 As the Joint Submission contend by reference to the Connection Material, for the Darlot native title holders, an apical ancestor's customary lands or 'country', that is, that area to which an apical ancestor has rights and interests according to traditional laws and customs, is generally referred to as their ngurra. This is a complex relationship, described by Dr Vachon as follows:
One's ngurra is as much an accomplishment as what might be considered an inheritance. Along with birthplace, other indeterminate bases of land-ownership are tied to culturally-privileged life-cycle events. These include: early life on the land, area of habitual occupation, initiation and acquisition of cultural knowledge, and place of death.
34 Through the multiple pathways system, an individual has rights to his or her own country in the Determination Area and this local connection accords such persons membership of the Darlot Mob and therefore shared rights in the entire Determination Area.
35 Dr Vachon identified both the provenance of the Darlot Mob and their unity as a group is the following observations:
In summary, the antecedents of the claimants were members of an amalgamated group of regularly-interacting consociates that was formed in about the early 1920's in the Darlot area. For some, known as Tjupan-Pini, their ngurra extended into the claim area at the time of sovereignty. For others, often called Koara, they originated from adjacent lands to the east and their ngurra came to be regarded as being within the claim area. The descendants of these people, often called the Darlot Mob, comprise the present claimant group. Along with the Darlot Mob, a number of initiated men married local woman [sic] of the Darlot area and took on rights and responsibilities in regard to the Law. All of these men are deceased and their rights were non-transmissible.
…
A strong emotional bond was created between the claimants as they were growing up and mamarli. As Verna Voss put it: 'My heart melts when I think of those old people. They were around us; we were part of them, even though we weren't initiated men'. In my opinion, the unity of the claimants as a group arises, in part, from a common sentiment towards mamarli and to the 'Law' these senior men 'looked after' on behalf of succeeding generations.
36 In the Joint Submission, the applicant and the State submitted that it was appropriate for the Court to make the determination they sought on the following basis:
(i) Throughout the case and the case management process, including the consent determination negotiation process, the applicant and the State have been legally represented.
(ii) The State has played an active role in the negotiation of the proposed consent determination. In doing so, the State, acting on behalf of the community generally, having regard to the requirements of the NTA and through a rigorous and detailed assessment process, has satisfied itself that the consent determination is justified in all of the circumstances.
(iii) The Connection Material provided to the State is, in the State's view, sufficient to demonstrate that the Darlot Application has a credible basis and that the native title claimants have maintained a physical presence in the Determination Area since the acquisition of British sovereignty. In addition, evidence of their continuing physical and spiritual involvement in the Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State was satisfied that the material presented was sufficient to evidence the maintenance of connection to the Determination Area in accordance with Western Desert traditional law and custom.
(iv) The State conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" (under s 225(c) of the NTA) within the Determination Area, and those interests are included in Schedule 6 to the Orders.
37 In addition to the above matters, I would add that the Minute has been negotiated through a case management and mediation process with the assistance of a Registrar of the Court who is experienced in dispute resolution in native title cases.
38 Having regard to the above matters, I am satisfied that the State, acting on behalf of the broader community, has taken a real interest in the proceeding and has engaged in a thorough examination of the application such that it is properly satisfied that there is a credible basis for making the proposed determination. I am therefore satisfied that the proposed order is appropriate and that the requirements made by s 87 of the NTA have been met.