1.28 Expert evidence
555 For the Bindunbur and Jabirr Jabirr applicants, Mr Bagshaw's primary report was the main source of written evidence about the Northern Tradition. Dr Weiner and Dr White expressed their agreement with his views on the acquisition of rights through ritual status. Professor Sutton also agreed and added some additional insights in his written report. For the Goolarabooloo applicants, Professor Cane's written reports were the main sources of evidence on the issue of ritual knowledge and its significance for the holding of rights and interests. After reviewing these reports, references will be made to the concurrent evidence on the question.
556 Mr Bagshaw explained in his primary report the collective, supervisory and instructional nature of religious authority thus:
89. As I understand it on the basis of my own long-term research in the region (commencing among the Bardi and Jawi in 1994), the Northern Tradition as a whole - that is to say, as an entire religious complex including any of its sub-regional mythological and ritual variants - was (and is) not traditionally owned by any particular individual or group per se; rather it was (and is) the collective property of all of those persons who subscribe to it (and its various localised articulations) as a matter of religious belief and action. In short, it is the cultural 'property' of its adherents, both male and female. Accordingly, senior Law-men and Law-women (Law-bosses or madja;…) traditionally act in a supervisory and instructional, rather than proprietary, capacity in respect of associated ritual performances.
[Emphasis added. Footnotes omitted.]
557 Then, Mr Bagshaw referred to the relationship between the Law bosses and the estate rights holders as follows:
90. In the same general connection I note that certain sites of ritual and mythological significance are also sometimes said to belong to "everybody", meaning - as I understand it - all initiated male exponents of the Northern Tradition. I further understand this characterisation to connote a traditional, collective form of responsibility, particularly on the part of knowledgeable senior Law-men (madja), for the physical and metaphysical integrity of locations concerned. It also refers to the fact that initiates learn from senior Law-men about the esoteric meaning of the sites concerned, and thus, as I infer, have an epistemological 'stake' therein. It should also be noted, however, that specific sites and areas of significance within the Northern Tradition are also held to form part of the particular local estate or estates (bur or buru) in which they are located, while at the same time being regarded as subject to the general oversight of Law-men, and of madja in particular … .
[Footnotes omitted.]
558 Mr Bagshaw saw the role of the senior Goolarabooloo Law people as an expression of their personal religious knowledge, not the result of them acquiring descent based rights. He stated:
154. Just as importantly, though, such protective undertakings (i.e. in respect of Northern Tradition sites and/or localities) are also the duty and responsibility of all Northern Tradition Law-men, including those of Paddy Roe's male descendants (e.g. Joseph Roe) who have attained that position. In that regard, I do not see the Roe (male) descendants' continuing caretaking role in relation to Northern Tradition locations within the south western and central-western coastal areas of the present study area as based upon some form of hereditary custodianship, or upon any other overtly familial connections to country (e.g. the spiritual associations of kin to the area in question, physical familiarity with local lands and waters, sentimental attachment) derived from long-term residence and/or aspects of life-history. Instead, I see that role as directly consequent upon their status as locally knowledgeable Northern Tradition Law-men.
[Emphasis added. Footnotes omitted.]
559 Such a role is, in Mr Bagshaw's view, limited in geographical scope and performed under the authority of the rights holders by descent. He explained:
155. As a non-descent based role, I further consider it to apply only to specific Northern Tradition sites and/or localities, rather than to the wider estates (bur) of which those sites and/or localities also form part. In that sense, it is a role enacted not only for the sake of the Law itself, but also on behalf of local, genealogically-defined estate-affiliates. (I note in this last connection that Rita Augustine [Broome, 17/3/14] spoke to me of the capacity of Law-men to protect Law places which [uninitiated] estate-affiliates could not themselves visit, presumably due to status and gender restrictions.) In the event of there being any suitably qualified (i.e. initiated and knowledgeable) male estate-affiliates, I assume on the basis of more general information obtained from others within the wider region about the duties and responsibilities of Law-men and/or estate-affiliates, that this role would be most appropriately performed in conjunction with, and under the primary authority of, such persons (i.e. qualified male estate-affiliates).
[Emphasis added. Footnotes omitted.]
560 Mr Bagshaw outlined that authority is gained as a result of possessing knowledge of the esoteric significance of the locations concerned. He explained the way in which the authority is exercised as follows:
162. … the opinions of Law-men on site related matters are generally sought and given in the form of advice, rather than directives. Nevertheless, all persons are expected to acknowledge and respect the Law, particularly as site-desecration is often believed to result in supernaturally induced sickness and/or death for the perpetrator. Typically (and ideally), those charged with the protection of any Northern Tradition sites and areas come from the near vicinity, and are thus presumed to have the greatest familiarity with local features of significance. Law-men from other localities are expected to support them as and when necessary.
[Emphasis added. Footnotes omitted.]
561 Then, Mr Bagshaw said that his information was:
163. … that any authority over sites exercised solely by virtue of an individual's status as a Law-man is entirely confined to the specific sites or areas concerned, and did not extend to the surrounding or intervening country, which belongs to persons with recognised familial relationships to it. As Joe Davey, a Bardi Northern Tradition madja (senior Law-man) expressly indicated to me, even the most senior Law-men cannot speak on behalf of another person's country.
[Emphasis added. Footnotes omitted.]
562 Mr Bagshaw concluded from all his field research that:
165. … the Law-based right to speak for such sites and locations does not amount to a proprietary right per se (that is to say, of the sort[s] held by held by genealogically defined estate-affiliates). Rather, it is a complementary right and duty exercised on behalf of estate-affiliates and, indeed, on behalf of all Northern Tradition adherents.
[Emphasis added.]
563 Addressing the question whether the Law role is transmissible, Mr Bagshaw said:
167. Since status as a Northern Tradition Law-man can only be gained on the direct experiential basis of initiation and ritual participation, it cannot be said to be dependent upon, or conditioned by, descent relationships (even though particular kin may play key roles in the organisation and performance of the rituals themselves). In other words, Law status is not, in and of itself, transmissible by means of descent. It follows, therefore, that any individual's Law-based authority over Northern Tradition sites and areas is personal to the holder and is not directly transmissible by means of descent. Moreover, as far as I am aware, status as a Law-man is not transmissible by any other cultural means.
[Emphasis added. Footnotes omitted.]
564 At the same time Mr Bagshaw explained the interaction between Law status and descent based rights to land in a particular area as follows:
168. At the same time, however, the authority of an individual Law-man to speak for a given Northern Tradition site or area is, as indicated above, typically (but not invariably) predicated upon that person's familial relationship to the territory of which the site or area concerned is a part. Consequently, it is probably most accurate to say that Law-based authority in relation to any Northern Tradition site or area is often informed by descent considerations, but is not, in the first instance, determined by them.
565 Mr Bagshaw summarised his conclusions on this issue in his supplementary report as follows:
19. First, in territorial terms, the jural role of Law-men is concerned entirely with the maintenance of the physical and metaphysical integrity of places of ritual and/or mythological significance, and is directed only towards those typically narrowly defined locations - it does not extend to surrounding territory; second, it is a complementary role exercised in relation to, and/or on behalf of, traditional owners; and third, it does not in itself give rise to any proprietary right in country.
[Emphasis added.]
566 Professor Cane devoted a considerable part of his primary report to a description of the traditional law of the Dampier Peninsula generally. He directed attention to the commonality between the Northern and Southern Tradition and also to what he saw as the commitment of the Goolarabooloo applicants to following the Law. The Southern Tradition is the ritual practice south of the Goolarabooloo application area, and is associated with desert practices. Professor Cane's description of the traditional Law is useful in giving an understanding of the context in which the question now under consideration arises. It is included for that purpose, accepting that it is background to the issue rather than a direct reference to the matter in issue. Professor Cane explained:
164. The starting point for a discussion of traditional Aboriginal law in the region of the Goolarabooloo claim area is the Bugari or Bugarigarra. This term is found throughout the literature relating to the Dampier Peninsula and can be summarised as follows.
• Bugarigarra is often glossed in English as 'Dreaming'.
• It is a belief in ancient spirituality when landscape and cultures were established.
• The Bugarigarra defines the totality of a person's existence, culture, belief, and relationship to land.
• The religious belief is practiced [sic] through staged rituals, that are essential performance-renewed manifestations of the Bugarigarra.
• It is through these rituals that youths become party to society's beliefs and become recognised as a 'Man' and Matja (boss) in that society.
• The ritual process is often referred to as 'business'; the resultant transfer of knowledge being the accoutrements of the law.
• Law is a term used in reference to rules, sanctions, mores, cultural precepts and understanding of the correct manner to manage relations with others and the natural world.
• The law has a fundamental unity.
• Knowledge that constitutes the law is sometimes secret and sometimes restricted.
• Knowledge of the law is gained over a whole lifetime.
• Those senior in the law (typically over 50 years of age) have the responsibility to look after it on behalf of the whole community.
[Footnotes omitted.]
567 In respect of the Goolarabooloo applicants' role in traditional Law, Professor Cane said:
249. The contemporary Goolarabooloo regional mythology, expressed as Bugarigarra, appears both comprehensive and relevant to the conduct of social activity and relations to land within the local Aboriginal population. The extant beliefs configure the essential laws and customs of the society of the claimants that I believe encompasses, with general demographic and geographic definition, the people of the Dampier Peninsula and the adjacent desert.
250. The core component of that law is the narrative of the Two Men, described in general terms in section 4.2.1. That narrative encompasses other narratives (notably the Two Snakes (section 4.2.2)) and is, in effect, one of the two pillars of the so-called northern tradition that defines the second stage of ritual initiation across the Dampier Peninsula (discussed in section 4.1). The Goolarabooloo typically refer to the religious narrative as 'The Song Cycle' but as Hoogland notes, who first defined its geographic expression (Restricted Figure 4), this was not a term used by Paddy Roe and others at the time it was first mapped. The term now has currency amongst the claim group as, in a sense, a euphemistic term with more particular meaning. As indicated in section 4.1.1 and 4.1.2 and documented by me in 2012, the commitment to the tradition is strong amongst the Goolarabooloo. Research conducted for this investigation confirms the view I formed in 2012 following conversations with Joe Roe that:
• There is detailed knowledge of the core religious narrative and the relationship between that narrative and the landscape in which it is embedded.
• Commitment to that 'law' is consistent with both knowledge of the tradition and ancestral responsibility to it.
• The tradition is a religious tradition that accounts for a number of salient characteristics of Aboriginal social and territorial relations to land north of Broome (and areas to the east).
• Tradition is, in effect, a core religious narrative that establishes traditional laws and customs in regard to linguistic identity, territoriality, classificatory kinship and the social and political dynamic that affects authority and decision-making in relation to land.
I also observed in 2012 that:
Any other configuration of the religious geo-political equation would be inconsistent with my understanding of Aboriginal religious tradition and would imply a proportional loss in the critical tradition that gives rise to law and custom as a basis from which local Aboriginal people claim native title rights in the area.
[Footnotes omitted.]
568 Professor Cane's primary report demonstrated that he was apprehensive about the process of translating Aboriginal laws and customs into the defined categories of native title rights and interests. Thus, his report first described the traditional laws and customs at length and the role of the Goolarabooloo applicants in relation to them and only at the end of the report did he attempt the process of translation. The difficulty Professor Cane identified in that process comes from the way he sees that the traditional laws and customs create an enmeshment of rights, interests, duties and responsibilities which are interconnected and perhaps difficult to unbundle. This is made clear at the end of the report when Professor Cane directly confronted the questions briefed for him to answer and he commented:
462. In my opinion the question regarding the traditional expression of rights and interests by Aboriginal people in the claim group does not have an either/or answer, but a contextual and interactive one. It is my view that rights are fundamentally acquired and activated by individuals in qualified social relationship. Rights and interests in land (and the waters adjacent to that land, see section 2.1 and 6.1) are a complete package, with individual quality and opportunity, familial responsibility and communal recognition and facilitation acting upon them.
[Emphasis added.]
569 Thus, as the report moved towards answering the questions posed in the brief provided to Professor Cane by the solicitors for the Goolarabooloo applicants, Professor Cane described the workings of the traditional laws and customs in a section entitled "Contextualising rights". The relevant passage is lengthy but, as it encapsulates the approach taken by Professor Cane, it is reproduced extensively in order to give proper attention to the Goolarabooloo applicants' arguments. The report relevantly stated:
435. In my opinion there is a dynamic between what I perceive as rights of a utilitarian kind (conditioned by the traditions of birth and descent) and rights of an authoritative kind (conditioned by traditions of Rai and religion). These rights are determined in accordance with, and directed by, the traditional law acknowledged and the customs observed by the society to which the claimants belong. These customs and traditions allow the acquisition, recognition and activation of rights in land, its natural resources and its religious expression and, consequentially, confer status and authority in society as well as in that society's relationships to the land.
436. Central to the recognition of social status and the assertion of authority in relation to land is an association with and understanding of Bugarigarra - the law or the religious property of the claim group. The rights flowing from a person's association with the law are acquired through the claimant's knowledge of the metaphysical character of their country and are empowered through their acquired knowledge of the traditional religious law of their society (section 4.1). The accumulation of religious knowledge is the primary mechanism through which social and territorial rights are given force, albeit in conjunction with other traditional laws that give rise to territorial belonging via criteria such as descent, succession, Rai, and birth.
437. My understanding is that the system of law and customs allows individuals a broad expression of rights within society and country, but also articulates these rights in a variable manner - most people have slightly different rights of varying value in relation to land, society and religion. The claim group is thus better thought of as a group of traditional rights holders than one of 'traditional owners', as not all claimants can activate rights of equivalent value across the claim area and within the society to which they belong. Thus the claim group might be characterised as a family who hold an amalgam of variable traditional rights in their land and the religious law of that land. As the 'Goolarabooloo claim group' they appear to hold all the rights, and as individuals they hold some of the rights independently within it.
438. The amalgam and variety of traditional rights and interests expressed by the claimants effects a social interplay of territorial rights and interests. As I understand the situation, the claimants see themselves as members of a society who are linked through the tradition of succession and ancestry (section 6.3) and biological kinship (section 5). The custom of descent has patrilineal orientation (Paddy Roe) and cognatic application (Margaret and Theresa Roe) so that it gives identifiable families (section 3.3) the right to possess, use and occupy country (sections 6.3), exploit its resources (section 7) and to speak with authority in relation to its religious content (section 4).
439. The territorial inheritance of the claimants is accompanied by a ritual inheritance (the Bugarigarra of the territory realised through Rai, initiation and related learning, sections 4.1.2, 6.3.3) according to which tradition accords different social, territorial and religious rights in country for claimants of different age, gender and status. Sansom recognised religious territorial property (defined by him as rights in country, sites, sacred icons, ritual-geographic designs, songs, stories, and dreamings) as a patrimony.
440. As mentioned (in section 4) rights derived from knowledge of the law (generically as Wallingari encompassing both northern and southern traditions and as Ululong in particular reference to the tradition in and around the claim area) and knowledge of its religious narratives (as Bugarigarra) are not rights of territorial possession per se. They are rights of a sociopolitical kind - derived from religious tradition and transformed from territoriality through the impregnation of the land with religious features (section 4.1). Seniority in that 'tradition' establishes the right to command authority in relation to the land and thus in society as it relates to that land. 'Law bosses' are thus the primary decision makers in the society of the claimants (sections 3.2, 4.1, 4.2, 7.4). Their socio-political capacity is strongest in their own country (derived through mechanisms articulated in section 4 and 6) and is expanded regionally through the companionship of other law bosses (male and female in context) who share knowledge of the Bugarigarra and country over in which that Bugarigarra is expressed. The strength of associated right decreases in inverse proportion to the rights of others as one moves further away from one's own country (derived through birth, descent and Rai) and the country of one's family (derived through descent; initiated by succession in the case of the Goolarabooloo, section 6.3.1- 6.3.3).
441. In relation to the claim area, rights in land are both driven by and satisfied through consensual social and biological relationships and political authority engendered by the Bugarigarra and knowledge and association of the country in question (sections 3, 4 and 7 respectively). This interplay of interest is affected and accommodated in the regional social context through traditions that allow claimants, somewhat paradoxically, to assert regional autonomy (through succession and descent); anticipate regional dependence (through marriage, kinship and shared responsibility for the Bugarigarra); argue a degree of autonomy (through birth and Rai); and express mutual and consensual authority in land (through the shared religious property of the Bugarigarra). The ebb and flow of the socio-territorial balance is provided for as a consequence of one's biological, social and ritual relationships enriched by the traditions of birth and one's place of spiritual origination (Rai). These traditions provide a social counterbalance in which individual interests in country are mediated and negotiated in the face of broader social allegiances. The focus of competition and compliance in relation to land, its resources and religious property varies from circumstance to circumstance but can be activated from an individual perspective as a consequence of spiritual connection to country (through Rai, section 6.3.3), religious knowledge of country (through initiation, section 4.1) and physical connection to country through descent and birth (sections 6.3.1, 6.3.2).
442. Both law and land are essentially indivisible within the claim area and amongst the claim group as a consequence of the inter-relationship between the traditional laws and customs that give both individuals and groups of individuals' [sic] mutual and differential rights in the same and different parts of the land. It is not easy to be selective in the definition of these rights; the delineation of the customary mechanisms that give precedence to one right over another; or the rights of one person (or group of people) over another in relation to land. The system is essentially one of firm territoriality and formal flexibility in the rights constituting 'land ownership' (section 6.2) so that each member of society has equal social opportunity and an equal chance of economic survival.
443. The nature of land rights is best understood as a consequence of a complicated interaction of the traditional laws and customs of the society to which the claimant's [sic] belong. In an attempt to explain that interaction in real terms I have generalised the rights sought for recognition by the Goolarabooloo and summarised what I believe to be the traditions that give rise to them:
1. The right of possession is derived through the succession of Paddy Roe and subsequent descent from Paddy Roe (Section 3.2, 6.3.1), matrilineal descent from birth and spiritual imbuement (Rai) of Margaret and Theresa Roe (section 3.2, 6.3.2, 6.3.3) activated and asserted through contemporary knowledge of the Bugarigarra (sections 4.1.2, 4.2) and knowledge and association with the claim area (section 7).
2. The right of use and occupation is derived through succession, descent, birth, Rai, biological kinship and is activated through knowledge of and association with country (sections 6.3.1 - 6.3.3, 5, 7 respectively).
3. The right to make decisions is derived from ritual status, knowledge of and association with the Bugarigarra of the country of possession (as provided for in right 1 above) and Rai, and is incrementally activated and given force by increased knowledge of the Bugarigarra.
4. The right to access and control access is derived from the traditions identified as part of territorial possession (as per right 1 above) and knowledge of the Bugarigarra (as per 3 above).
5. The right to protect areas of cultural significance in country is derived from traditions that give rise to possession of country (as per right 1), Rai, and association with and knowledge of the Bugarigarra (as per right 3) in the context of the country of the claim (section 4.2).
6. The right to participate in ceremonial activity is derived from and conditioned by biological descent (section 6.3.1), Rai (6.3.3), sociocentric kinship (section 5.1.2, 5.4), initiation, knowledge of and seniority, in the rituals of 'northern and southern traditions' typically identified as Wallingari generically and by its Ululong rituals locally (section 4.1.1, 4.2) and encapsulated by the Bugarigarra (section 4.1)
[Emphasis added. Footnotes omitted.]
570 In his primary report, Professor Sutton agreed at [42] with Mr Bagshaw and Dr Weiner that the right to speak for and protect sacred sites through participation and knowledge of the Law is limited to those sites and are not rights in the areas surrounding or between the sites. Professor Cane rejected that position in his supplementary report thus:
57. Sutton's second concern that rights to speak for sacred sites are limited to those sites alone, strikes me as both narrow and inaccurate. It is my experience that the delineation of a sacred site has never been an easy matter. The 'sphere' of sacred influence is typically indeterminate and dependent on the activity proposed in relation to it and the generational and political perspectives of the religious leaders at any given time. More significantly, it is well known that sacred sites do not sit in isolation, but are connected by religious pathways woven into sacred landscapes. This is not to deny the existence of many non-sacred areas, but to recognise that the compartmentalisation of sacred authority in relation to defined sacred land is neither an easy matter, nor a matter for others outside the traditional system to adjudicate on. The restricted Figure 4 in (Cane 2015) clearly illustrates that the Goolarabooloo claim area has many locations, sites and features of religious sensitivity. Containing or seeking to deny religious authority and associated rights in relation to any particular part of it would be a difficult and self-defeating exercise. Such a task would be a misrepresentation of both traditional religious geographic politics and religious geography itself.
571 Professor Cane agreed with Mr Bagshaw, Dr Weiner and Professor Sutton that status in law is not transmissible by descent. Professor Cane continued in his supplementary report as follows:
58. … Sutton's further concern (mirroring Bagshaw and Weiner) is that status in law (and presumably rights in land that relate to that status and law) are not transmissible by descent is, as far as I understand traditional religious law, true. It is my understanding that status and influence in traditional religion is attained through initiation, instruction and knowledge of country (conditioned by factors such as gender and age) - and that this is also the perspective of the Goolarabooloo. …
572 Professor Cane concluded his supplementary report as follows:
204. It is my firm opinion that the status and roles of these men in relation to the Bugarigara generally and the Northern and Southern Traditions specifically gives them unambiguous rights in relation to the country over which their family has maintained connection and responsibility for the last 80 years. This period of custodianship clearly exists within the sovereign era, but the traditions it is driven by are undoubtedly much older. The rights are articulated locally in country and regionally in ceremony. I agree with Paul Sampi (above) who states that the religious law is everything and carries rights of paramount importance - over and above, in my opinion, quotidian rights acquired through descent (in the absence of accompanying ritual authority). The need to protect and maintain the geographic fabric of the ritual tradition is, in my experience, fundamental to the maintenance of the religious tradition and demands the right to do so (as Nipper Roe and Paul Sampi explained above).
[Emphasis added.]
573 In the concurrent evidence there was an exchange between the Court and Mr Bagshaw about the difference between a traditional owner and a Law man in respect of rights and interests in land. It went as follows:
MR BAGSHAW: Yes, I think I understand what your dilemma is, your Honour. I'm not sure whether this particularly assists, but in my view the rights - and it goes to what Professor Sutton was talking about yesterday. These are roles of authority as opposed to, for want of a better term, identification. Traditional owners, and I've said in one of these reports, I think, the anthropologist, Fred Myers who worked in the Western Desert area famously defined traditional ownership as the right to be asked. And that applies, in my view, to all traditional owners irrespective of whether they're lawmen or not.
And the presumption - the logical presumption is that in order to access a lawground you would have to come into somebody's country. Now, the lawmen - and this is entirely hypothetical, but I believe it's grounded in the logic of what people have been telling me over the years, I'm the traditional owner and you're the lawman. It's up to me to be asked for access to my country which includes the lawground. As to the lawground itself, it may be if I'm also a traditional owner and a lawman well, it would be entirely up to me, but conceivably it could be up to you just in relation to the lawground.
So, I guess the point I'm trying to make is that permission and access is not one or the other. For traditional owners in my opinion, they have the complete suite of access to the estate initially. The component lawgrounds - and I think we really have to be - I don't want to take up too much time.
HIS HONOUR: No, I want this question answered and, in fact, I'll go down because this is my dilemma.
MR BAGSHAW: Okay.
HIS HONOUR: If we get to the point of this particular pathway into native title - - -
MR BAGSHAW: I think it goes - - -
HIS HONOUR: Sorry, if I can just explain this aspect: that you have here the potential that you've got PR who had the ritual authority but not - but was not a traditional owner. That's one option, and it's not the only option that's put, but this is where you've got the bifurcation between traditional ownership on the one hand, and ritual ownership - ritual authority only, and not traditional ownership, and that's the question I'm seeking to explore with you all.
MR BAGSHAW: Yes. I - I think the latter is the case, the ritual authority only.
[Emphasis added.]
574 In concurrent evidence, Professor Sutton pointed out what he saw as a stumbling block for the Goolarabooloo applicants. He said:
… it's clear that the Bardi senior lawmen have not put in an application for native title over this area, and yet they have the same relationship to the sites and the Dreaming Tracks as - as other senior lawmen do of whatever background. And I think there is evidence from Bardi witnesses to the effect that they would not do so.
575 In concurrent evidence, in a passage extracted above in these reasons for judgment at [299], Professor Cane gave further insight into the basis of his views. In summary, Professor Cane referred to the "population dislocation", "removal of children", and the "emotional and social trauma" which he characterised as a "rupture" which provided the context for the arrival of Mr P Roe, and the subsequent presence of his descendants in the Goolarabooloo application area.