Neowarra v State of Western Australia

· belief in a class of individually named ancestral creator beings known as Wanjina, who left themselves throughout the region as cave paintings of a distinctive sort, and/or as features of the landscape

· belief in a primordial serpent called Wunggurr, who is intimately associated with the Wanjina beings, rainfall and fecundity

· events of spiritual conception through which a child is associated with a place from which its body was entered in utero by a pre‑existing spirit placed there by Wunggurr

· a division of the entire region into named countries called dambun, dambu, dambina or gra, each associated with one or more Wanjina, often present as a painting in one or more caves or rock shelters within the country

· clan groups, each of which is associated with one of the named countries, clan membership being determined by that of one's father

· a kind of top‑down division of the world (human and non‑human alike) into two complementary categories of the kind known to anthropologists as moieties, children being assigned to the opposite one to their mother's (usually the same as their father's)

· a system of kin classification through which clan estates are linked together in specific quasi‑genealogical or affinal relationships (brother‑brother, mother‑child, husband‑wife etc)

· a system of exchange (the wurnan) in which objects, songs and valued knowledge are circulated through an established order of adjacent clan estates.

4 The authors then describe the content of section 2 of the Joint Report - The Wanjina‑Wunggurr Cultural Domain before European Colonisation. They say that Aboriginal occupation of the Wanjina‑Wunggurr region is attested by first‑hand historical accounts dating from before European colonisation in 1829, and occupation of the claim area is attested by accounts from 1837. Archaeological evidence attests to continuous occupation and use of the area for a period beginning at least 26,000 years before that, and to the presence of Wanjina paintings for at least 600 years. Comparative linguistic evidence strongly suggests that all Aboriginal languages associated with the Wanjina‑Wunggurr region are related to each other within a single family of languages which have been developing in situ in the region for at least 1,000 years. While direct ethnographic evidence about the region is not available for the precolonial period, the earliest available ethnography, together with other sources, enable the production of an "inferential but a highly likely account" of many aspects of Aboriginal culture and social life in the claim area before 1829. This account, they say, establishes beyond reasonable doubt that there was an organised system of customary links to land in the Wanjina‑Wunggurr region before 1829, almost certainly possessing some of the features listed in the dot points above, and probably most or all of them. 5 The authors then describe section 3 of the Joint Report - The Wanjina‑Wunggurr Cultural Domain in the Present and Recent Past. This section is based on their research in the area and on more recent ethnography. They argue that there is still an organised system of customary links to land in the claim area and the wider Wanjina‑Wunggurr region, and that it includes almost all the major features attested in the earliest ethnography. Within this system there are many different kinds of cross‑cutting ties between people and land. Clan estates continue to be very important units in the social identification and differentiation of country, and clan membership is central in relation to them. But many other kinds of links are also relevant and operative, including all the others listed in the dot points in [3]. 6 In section 4 the reporters give Particulars of the Claim Area and the Claimants' ties to it. In their description of the final section - Rights and Interests held within the Wanjina‑Wunggurr Cultural Domain - the authors assert that within the Wanjina‑Wunggurr region, rights and interests in land are "established as practical entailments" of the forms of linkage recognised within the Wanjina‑Wunggurr cultural domain. They say that clan membership plays an important part in the determination of core groups of people who exercise rights over particular locales, and the right to authorise the occupation and use of them by other people. However the other forms of linkage (listed in the dot points in [3]) establish bases on which some of those other people can virtually presume such authorisation. Rights over larger regions, namely language countries and the Wanjina‑Wunggurr region as a whole, are held in common by people who are legitimately identified with the region, as members of a language group or of the greater Wanjina‑Wunggurr community. These rights are said to include the right forcibly to exclude others from the area. Nowadays, these "more global rights" are exercised mainly at the level of what the authors call "intellectual property": the right to speak authoritatively about the area and its traditions, to control the use and dissemination of images associated with it, and to assess claims which are framed in terms of those traditions. The authors assert that in respect of these intellectual property rights, the level of the Wanjina‑Wunggurr community as a whole is crucial for questions of native title, because it is the level at which the relevant culturally specific forms of linkage to land are determined. 7 Several concepts involved in the Executive Summary require explanation. The claim area is the combined area of the two claims in suit. The areas are adjacent. The area the subject of the first claim in (WAG 6016/96) is surrounded on three sides by the area the subject of the second claim (WAG 6015/99). The Wanjina‑Wunggurr region is larger than the claim area. It is not defined in the way the claim area is, but includes country beyond the bounds of the claim area though contiguous with it. The Wanjina‑Wunggurr cultural domain is not an area, or something to which people belong. Rather it is an inherited body of laws and customs that are observed and acknowledged within the Wanjina‑Wunggurr region. The Wanjina‑Wunggurr community is the group of people who are associated with the Wanjina‑Wunggurr region and observe and acknowledge the laws and customs that constitute the Wanjina‑Wunggurr cultural domain.

OTHER EXPERT REPORTS 8 The following expert reports were also filed by the applicants pursuant to Lee J's order:

(a) an archaeological report prepared by Dr Bruce Veitch

(b) an anthropological report prepared by Professor Valda Blundell

(c) historical reports prepared by Dr Fiona Skyring

(d) historical reports prepared by Dr Mary Anne Jebb

(e) genealogies prepared by Diana McCarthy, Kim Doohan and Daniel Vachon and a joint report accompanying the genealogies

(f) a supplementary anthropological report prepared by Dr Rumsey.

OBJECTIONS TO JOINT REPORT 9 The evidence of the claimants was taken in November 2000 and between July and October 2001. On 6 May 2002, when the applicants were about to call Dr Redmond to give evidence, counsel for the respondents (other than the fourth and fifth respondents) informed the Court that they objected to the whole of the Joint Report (other than section 2.3 The linguistic evidence authored by Dr Rumsey alone), alternatively to many parts of it. On that occasion no particular parts were identified, though I was told that some of the respondents had prepared lists of objections. It was not proposed to hand them to the Court at that stage because the outcome of the blanket objection might make it unnecessary to go to particular paragraphs. The blanket objection was put in three ways. First, assuming the numerous specific objections were upheld, what was left would be meaningless. Secondly, it was unclear from the report whose opinions were being expressed. Putting section 2.3 aside, were they opinions held by all of Dr Rumsey, Dr Redmond, Mr Vachon and Ms Doohan, or some only of them, or were they the opinions of Dr Rumsey and Dr Redmond alone? Thirdly, it was unclear whether various statements in the report were of opinion, assumption, hypothesis, fact or hearsay. Reliance was placed on what the High Court had said in The Commonwealth v Yarmirr (2001) 208 CLR 1 at [84]: "At the trial, the claimants tendered in evidence a report by [two anthropologists]. The report was received in evidence without proof and without objection despite it being a document which was in part intended as evidence of historical and other facts, in part intended as evidence of expert opinions the authors held on certain subjects, and in part a document advocating the claimants' case. Although it was not suggested that the mixing of these disparate elements, without any evident delineation between them, ultimately led to any insuperable difficulty in this case, it is a practice which has obvious difficulties and dangers." 10 On 7 May some of the respondents filed notices of objection to the Joint Report and other reports. The pastoral lessees other than the second respondent (the Group 2A respondents) made a blanket objection to the Joint Report (except section 2.3), but as a fall‑back position made 338 specific objections. The State of Western Australia (the State) also made the blanket objection, and if that were to fail made 94 specific objections. Again there was no objection to Dr Rumsey's linguistic section. The West Australian Fishing Industry Council (WAFIC) adopted the Group 2A respondents' objections and made some additional specific objections of its own. The second respondent adopted the submissions of the State and the Group 2A respondents. The specific objections included the absence of a statement of any basis for an opinion or conclusion, hearsay, relevance, and attempt to fill gaps in the primary Aboriginal evidence. 11 It was soon apparent that, having regard to the multiplicity of objections, it would be impossible to deal with them without excising several days from the timetable established for the hearing of the experts' evidence. The course I directed be followed was that counsel for the applicant be permitted, by oral examination, to attempt to "cure" at least the more global deficiencies asserted. I took this course for a number of reasons. First, the Joint Report was filed pursuant to the Court's order in circumstances where it was plain that it would precede the taking of the claimants' evidence. Secondly, the detail and scope of the objections were only made known to the applicants as they were about to call the expert evidence. Thirdly, the applicants had not yet tendered the Joint Report, and had proposed in any event to lead further evidence in chief from its authors. Finally, the State said that if the respondents' general or specific objections were upheld, it would not oppose the applicants having leave to adduce further, admissible, oral evidence from the authors. I further directed that after Dr Redmond and Dr Rumsey had been orally examined and cross‑examined, the respondents would file notices of amended objections to take account of the oral evidence. I would in due course rule on any objections that were maintained. That course was followed. 12 Detailed oral evidence was taken from Dr Rumsey and Dr Redmond. Each author:

· identified the way in which the Joint Report had been assembled

· said he had read and commented on the work of the other, and that all parts of the report, other than section 2.3, were collaborative efforts in the sense that they discussed what each had written and came to an agreed position either by accepting the other's draft or by modifying the draft

· said that whoever had responsibility for the initial draft of a segment, the opinions expressed in the final report were his opinions.

Dr Redmond said that the opinions and conclusions contained in the Joint Report (other than those in section 2.3) were his opinions and conclusions. Dr Rumsey said the same of the whole Report (ie including section 2.3). Section 2.3, dealing with linguistic evidence, was written by Dr Rumsey and contained his opinions and conclusions alone. The authors' recollection of who was responsible (at least initially) for the preparation of the various parts of the Joint Report did not entirely coincide. Dr Rumsey had better records than Dr Redmond as to the construction of the Joint Report (down to the detail of who wrote individual sentences in a paragraph), and where their accounts differ, I accept his evidence in preference to Dr Redmond's.

13 The State and the Group 2A respondents filed revised notices of objections to the Joint Report. The Group 2A respondents' objections were reduced from 338 to 326. The State's objections were not reduced. Having regard to the evidence in chief elicited from Dr Redmond and Dr Rumsey, the second and third bases for the blanket objection were not pursued, though they were not expressly abandoned.

THE FORM OF THE OBJECTIONS 14 The notices containing the objections are not very helpful. Most of the Group 2A respondents' objections take one of the following forms:

· no primary evidence to support conclusion or opinion. Basis

· no primary evidence to support conclusion or opinion. Hearsay

· no expressed or discernible basis for the conclusion or opinion

Most of the first respondents' objections take one of the following forms:

· Form. Hearsay. Factual basis not disclosed or proved.

I was not taken to any part of the Joint Report to illustrate what was intended to be conveyed by these objections. This gave rise to particular difficulty in relation to the "basis" objection. It is not clear whether the complaint is that the applicants have not by admissible evidence established the facts they assert or assume (cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]), or whether it is that the authors have not set out the facts they assert or assume, with the result that the Court cannot determine whether the opinions and conclusions expressed are substantially based on their specialised knowledge which is in turn based on training study or experience (cf HG v The Queen (1999) 197 CLR 414 at [39]). In these circumstances I have done my best to identify the real ground of each objection having regard to the context provided by the material the subject of the objection.

OPINION EVIDENCE 15 Opinion evidence in this Court is now regulated by ss 76 to 80 of the Evidence Act 1995 (Cth). Those sections are in part as follows: "76. (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. … 77. The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed. 78. The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 79. If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 80. Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue; or (b) a matter of common knowledge."

THE BASIS RULE 16 The Law Reform Commission (the Commission) in its 1985 Interim Report No 26 Evidence vol 1 par 161 described the status of opinion evidence based on material that is not already admitted into evidence as "a matter of some controversy". The Commission referred to cases supporting the existence of what it called "the basis rule", but noted that they were at odds with the High Court's view in Ramsay v Watson (1961) 108 CLR 642 at 649 that the consequence of not proving the factual basis for an expert's opinion is that the opinion may be of "little or no value, for part of the basis of it has gone. Each case depends on its own facts". The Commission then referred to Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 where Blackburn J, dealing with an anthropologist's report, said that the matter was one of weight rather than admissibility. In another part of its Report (vol 2, Appendix C par 107) the Commission said of Milirrpum: "[Blackburn J's] approach, therefore, seems to be that if it is the usual practice of experts in a certain area to inform themselves by means of reliance upon the statements of others, or perhaps even upon the work and opinions of others, then those statements and that work should be accounted as sufficient to form the basis of the expert's opinion. However, the absence of admitted evidence of the basis for the opinions will go to weight, not admissibility."

The Commission concluded that there was uncertainty as to whether the basis rule operated as a criterion of admissibility or went merely to weight.

17 The Commission returned to the topic later in its Report (vol 1 pars 362‑363). After again noting that it was a matter of some controversy whether an opinion that is based upon inadmissible or unadmitted material is itself admissible, it expressed the view that if there is a basis rule, "then the law must be criticised". The Commission went on: "A strict implementation of a basis rule could eliminate, for example, opinions of doctors based upon opinions and assistance given by fellow doctors, nurses, technicians, laboratory analysts and even the patient's relatives. All of these constitute material customarily relied upon by doctors in the formation of their professional opinions. To deny the expert that opportunity, for forensic purposes, of the use of material from sources normally open to him in his professional life would be to drive an uncomfortable wedge between his professional judgments and those which are acceptable to the courts." 18 In this connection the Commission referred again to Milirrpum, and quoted from the opinion of Fauteax J in Wilband v The Queen (1967) 2 CCC 6 at 11: "The evidence, in this case, indicates that to form an opinion according to recognised psychiatric procedures, the psychiatrist must consider all possible sources of information, including secondhand source information, the reliability, accuracy and significance of which are within the recognised scope of his professional activities, skill and training to evaluate. Hence, while ultimately his conclusion may rest, in part, on secondhand source material, it is none the less an opinion formed according to the recognised normal psychiatric procedures …. The value of a psychiatrist's opinion may be affected to the extent to which it may rest on secondhand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information but evidence of the opinion formed on the basis of that information." 19 Ultimately the Commission decided not to include a basis rule in its draft legislation. It gave as its reason (vol 1 par 750) a concern that such a rule would make it impossible "to have opinion evidence which had as a significant component the opinions or the statements of others. This would preclude the tendering of evidence whose value is dependent upon material not before the court and, therefore, difficult for it to assess. While this would have its advantages, it would fail in its inflexibility to take account of the normal means by which experts generally form their opinions - by means of reports of technicians and assistants, consultation with colleagues and reliance on a host of extrinsic material and information that it would be an endless and unfruitful task with which to burden the courts."

"opinion evidence whose basis is not proved by admitted evidence prima facie to be brought before the court. Under this circumstance the weight to be accorded to it will be left to be determined by the tribunal of fact."

The Commission went on to consider two "areas of doubt":

"· whether evidence by the expert of the hearsay foundation of his opinion may be excluded and, if so, on what grounds; and · whether an opinion based upon hearsay material should be open to exclusion and, if it is excluded, the grounds for its exclusion. Such material will be able to be excluded by the operation of a relevance discretion. Thus, if it appears to the court that excessive time will be expended upon the reception of the evidence, or that its prejudicial effect substantially outweighs its probative value, the court not being able to assess the weight to be accorded to it, the testimony can be excluded. The same approach is proposed to control the admissibility of the expert's testimony of the facts on which his opinion is based where a party does not propose to, or does not, call direct evidence of the truth of the statements of fact relied upon by the expert." 20 Although the Law Reform Commission considered the better view to be that "no such rule" exists (vol 1 par 750), it was accepted as a common law requirement by Heydon JA in Makita. That is, for a person's opinion to be admissible, it must be based on facts stated by the witness and either proved by the witness or assumed by the witness and proved aliunde. Heydon JA said: "59. If Professor Morton's report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions. … 64. The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material …. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved." 21 Section 79 imposes three conditions for the non‑application of the opinion rule contained in s 76:

· the person whose opinion is in question must have specialised knowledge

· that specialised knowledge must be based on the person's training, study or experience

· the person's opinion must be wholly or substantially based on that specialised knowledge.

22 The "basis rule" does not feature in s 79. The Australian Law Reform Commission explained why. That the legislation does not include any common law "basis" requirement is now established by the cases. See Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373‑374 and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [10]. See also Guide Dog Owners' & Friends' Association Inc v Guide Dog Association of New South Wales (1998) 154 ALR 527 at 531. Cf Makita, which is discussed in pars [24] to [27] below. 23 While the legislation does not incorporate a "basis rule", an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the court to determine whether the opinion is wholly or substantially based on the expert's specialised knowledge which in turn is based on training, study or experience. See HG v The Queen at [39] per Gleeson CJ. In Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 at [23] the Full Court said that a report on which an opinion is recorded should express the reasoning of its author in a way that shows that the opinion is based on particular specialised knowledge. 24 In Makita at [85], speaking of s 79 of the Evidence Act 1995 (NSW) (which is in the same terms as s 79 of the Commonwealth Act), Heydon JA said: "In short, if evidence tendered as expert opinion is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on 'a combination of speculation, inference, personal and second‑hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.'"

It is the fourth requirement set out by his Honour that is relevant here:

"so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way."

That seems to me, with respect, to be restoring the basis rule. The reason his Honour gave for requiring this and the other presently immaterial requirements is that "if all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge". While that may be so with respect to other requirements, the expert's exposure of the facts upon which the opinion is based is sufficient to enable the relevant enquiry to be carried out. That enquiry is not dependent on proof of the existence of those facts.

25 HG v The Queen does not support the supposed requirement. After stating that an expert should differentiate between the assumed facts upon which the opinion is based and the opinion itself, Gleeson CJ said at [39]: "Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question."

His Honour does not thereby require, as a condition of admissibility, that the assumed facts on which the opinion is based are established by the evidence. If at the end of the evidence they are not established, the weight to be accorded the opinion will be reduced, perhaps to nil. But that is not a matter of admissibility.

26 In Sydneywide Distributors, after quoting the passage from Makita set out in [24], Weinberg and Dowsett JJ said [at 87]: "[Heydon JA's] use of the phrase 'strictly speaking' in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence." 27 Branson J was of substantially the same opinion. At [16] her Honour said: "Further, the requirement that an expert opinion be wholly or substantially based on the witness's specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) base for the opinion. Were the position otherwise the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge."

See also at [7] where her Honour expressed the view that Heydon JA's approach should be "understood as a counsel of perfection", and that a reading of his reasons as a whole revealed that he recognised that in the context of an actual trial, the issue of admissibility of evidence tendered as expert opinion evidence "may not be able to be addressed in the way outlined in the above paragraph".

HEARSAY BY EXPERTS 28 Section 59(1) of the Evidence Act provides "Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation."

The expression "previous representation" is defined as

"a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced."

Pausing there, all statements made to the authors of the Joint Report upon the basis of which they formed their opinions or came to their conclusions are previous representations. Section 60 provides:

"The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation." 29 At common law, where evidence of a previous representation is admitted for a non‑hearsay purpose, it may only be used for that purpose. It may not be used to prove the existence of an asserted fact, unless it falls within an exception to the hearsay rule. The Commission explained the reasoning behind s 60 (Interim Report No 26 vol 1 par 685): "Under existing law hearsay evidence that is admissible for a non‑hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court's assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non‑hearsay purpose - eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert's opinion - will be admissible also as evidence of the facts stated." 30 In Lee v The Queen (1998) 195 CLR 594 at [39]‑[40] the High Court said: "[The Commission's] recommendations must be understood in the light of its criticism of the result that follows from the application of the common law rule against hearsay to the evidence of experts. At common law, an expert (such as a medical practitioner) may give evidence about the factual basis for the opinion expressed (such as the history given by the patient) only as evidence showing the foundation for that opinion, not as evidence of the truth of the facts recounted. It is then clear that s 60 was intended to work a considerable change to the common law."

In that case a witness at the appellant's trial made out of court statements which included a report of confessional statements made by the accused to the witness. At the trial the witness denied that he had heard the confessional statements. Evidence of the out of court statements was admitted under s 60 as evidence of the truth of the statements. The High Court held that s 60 did not permit their admission. The question for decision on the appeal was "whether s 60 permitted an out of court statement that is itself a report of what someone else said, to be used as proof of the truth of what was reportedly said" (at [3]). After having said that s 60 was intended to work a considerable change to the common law, the Court continued at [40]:

"But there is no basis, whether in the considerations which we have mentioned as having influenced the Commission or otherwise, for concluding that s 60 was intended to provide a gateway for the proof of any form of hearsay, however remote. As has been indicated earlier in these reasons, that that was not intended is made plain by the terms of s 59 to which s 60 is an exception." 31 In Quick v Stoland at 382 Finkelstein J said: "In many cases the extraordinary effect of s 60 would be unfair to the party against whom the evidence is tendered. For example, where the hearsay involves 'facts' that are in conflict or 'facts' that are unreliable it is quite unsatisfactory for those 'facts' to be proved by the operation of s 60. One way in which this problem can be overcome is by an order under s 136 limiting the use to be made of that evidence. In the case of evidence given by an expert, he or she can be required to express his opinion in answer to a hypothetical question leaving it to the party calling the expert to prove the facts upon which the opinion is based."

"The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing." 32 Daniel v Western Australia (2000) 178 ALR 542 concerned the evidence of an anthropologist in a native title case. The witness was being examined on his anthropological reports, none of which had yet been admitted into evidence. In one of the reports the witness expressed the opinion that "the Burrup [Peninsula] is Ngarluma land and all members of the Ngarluma language group have interests in it under Aboriginal law". The witness was asked who occupied the Burrup. The question was objected to by the respondents, who anticipated that the response would be in terms similar to the passage in the witness's report. The objection took this form:

· the opinion was based on hearsay evidence of out of court statements by claimants who were available to give evidence

· consequently admission of the opinion would deny the respondents the opportunity of cross‑examination on the hearsay evidence

· the opinion sought to be elicited was not based wholly or substantially upon the specialised knowledge of the witness.

33 The hearsay material identified in the report about which claimants could have given evidence was in various forms such as:

· one of the protagonists in a discussion about ownership of the Burrup produced a report to support a contention that the Yapurrara were the real owners

· there was agreement among the claimants that the Burrup's owners could be found from among the Ngarluma group

· members of the Ngurinyungu descent group assert rights through their traditional ownership of neighbouring land

· claimants recall that Willy James identified as a Ngarluma person with rights in Ngarluma land

· a third claim to the Burrup is made on behalf of the Ngarluma people generally through David Daniel who asserts that he is entitled to rights in land in the Roeburne region because he was born and initiated there

· the Ngarluma people strongly assert ownership of the land

· deference was shown to the right of David Daniel to speak about the Burrup, particularly as his claim had the support of senior claimants like the late Yilbi Warrie.

The applicants denied that these matters were not otherwise the subject of evidence.

34 Nicholson J reviewed the case law and from it distilled a number of propositions, some of which it is useful to set out: "(7) Hearsay evidence from which the [expert's] opinion is inferred, will (subject to the application of ss 135 and 136) qualify for admission pursuant to s 56 as relevant to the purpose of the basis upon which the expert holds the opinion so that its weight can be assessed. It could then be used for a hearsay purpose as a consequence of the application of s 60. (8) Admission of hearsay evidence with that consequence under s 60 leads inevitably to the need for the court to consider whether that admission should be limited under s 136 to the stated purpose of testing the knowledge on which the opinion is based. (9) Admission with the consequences flowing from s 60 would not occur if the court considered omission should be precluded in exercise of its discretion under s 135. It would seem that hearsay evidence comprising a statement as to the existence of native title made to the expert by a party not called (and being on an issue central to the case) would qualify for exclusion or admission limited to testing the opinion in the manner required by s 78." 35 His Honour then considered whether the hearsay material should be excluded under s 135. That section provides that "The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time." Nicholson J concluded that the material should first be considered for limited admission under s 136 for the purpose of determining whether the opinion of the expert has or has not qualified under s 79, and that a ruling on the application of s 135 should be held over until that issue had been resolved. His Honour then observed, in relation to s 136, that there is a danger that use of the hearsay material might be unfairly prejudicial to a party who has not had the opportunity to cross‑examine on it. It might be particularly unfair where it consisted of evidence by a claimant party not called in relation to the central issues in the case. Further, it had the potential to be misleading or confusing because there would be no proper forensic basis upon which to weigh it in relation to evidence called in the normal course which had been the subject of cross‑examination. His Honour then invited the parties to apply for a limitation under s 136. He then declined to order, under s 82(1) of the Native Title Act 1993 (Cth), that the rules of evidence should not apply to the hearsay material in question. 36 In Lardil v Queensland [2000] FCA 1548 objection was taken to parts of an anthropological report containing statements made to the expert by a number of named Aboriginals as to their culture, laws, practices, beliefs and their social structures and relationships. The respondents submitted that the hearsay statements made by those who were living at the time of the trial, and who were either not called to give evidence or who were called and did not give evidence in terms of the statements contained in the report, should under s 136 be admitted for the limited purpose of showing the foundation for the expert's report and not to prove the truth of the statements. In the alternative it was submitted that the rules of evidence should be dispensed with in relation to the hearsay material under s 82 of the Native Title Act. Cooper J stressed that s 60 is not concerned with the weight to be given to hearsay material which may, by that section, be relied on to prove the fact to be asserted by the representation. The weight to be accorded to any particular evidence remains a matter for the court: Quick v Stoland at 375‑376; Welsh v The Queen (1996) 90 A Crim R 364 at 369, 371. His Honour said at [17]: "Included in the circumstances to be considered in determining what weight should be given to the material, will be the circumstances in which the statement was made, whether or not that which was said was within the personal knowledge of the person making the statement, the likelihood or otherwise that the statement has been fabricated, whether the maker of the statement has been called to give evidence, and if so, the nature and effect of that evidence, including whether the maker has been cross‑examined on the statement or generally, and whether the respondents had had a real opportunity to test the accuracy of the matters asserted in the report. These are not the only circumstances which need to be taken into account. Much will depend on the relevant circumstances identified in each particular proceeding. However, what needs to be kept clearly in mind is that s 60 of the Act does not endow hearsay evidence with any greater weight than the circumstances warrant; it merely means that there is some evidence of the fact asserted: Welsh at 371."

His Honour declined to limit under s 136 the use to which the hearsay material could be used, but said that this refusal would not prevent the respondents from contending that in the circumstances of the case the hearsay statements should be given little or no weight and should not be relied on. Those circumstances included the fact that no attempt had been made to tender original evidence of the statements when the witnesses gave evidence, the failure to call some witnesses at all, and that certain oral evidence was inconsistent with the previous hearsay statement. For the same reasons his Honour declined to dispense with the rules of evidence in relation to the statements pursuant to s 82 of the Native Title Act.

37 Because any common law basis rule has not been imported into s 79, so that at the stage of admissibility there is no requirement that the facts upon which the expert's opinion has been formed be supported by admissible evidence, the fact that an expert's opinion is based in whole or in part on a "fact" supported by hearsay, is not a ground upon which the opinion must be rejected. In any event, an expert's opinion that is based on "facts" supported by hearsay is prima facie admissible under s 60. 38 Subject to the application of ss 135 and 136, hearsay material on which an expert's opinion is based will qualify for admission as relevant to the basis upon which the expert holds the opinion ("a purpose other than proof of the fact intended to be asserted by the representation"). If it qualifies, it can then be used as proof of the fact intended to be asserted. That is the view that has been taken in relation to expert evidence in Daniel, Quick v Stoland, Lardil and Harrington‑Smith v Western Australia (No 7) [2003] FCA 893. See also Welsh v The Queen at 368 and Lee v The Queen at 604. The weight to be accorded to that evidence is a matter for the court.

CONCLUSION ON BASIS AND EXPERT HEARSAY 39 It will be apparent from what I have said that:

· the opinion provisions of the Act do not incorporate a basis rule requiring the facts upon which an opinion or conclusion is based to be established by admissible evidence

· the weight to be accorded an opinion or conclusion that is founded on a fact that is not established by admissible evidence may thereby be reduced

· while the Act does not contain a basis rule in the sense described above, the fact that hearsay material may lie behind facts ascribed or assumed does not spell inadmissibility; rather it goes to the weight to be accorded the expert's opinion or conclusion

· an expert's opinion that is based on hearsay is admissible under s 60 in proof of the fact intended to be asserted, though the weight to be accorded the opinion may be reduced by the hearsay quality of the material, and the hearsay material or the opinion may be excluded under s 135 or s 136

· remote hearsay is not admissible under s 60 in proof of the fact intended to be asserted.

OTHER OBJECTIONS No primary evidence 40 It is apparent from the Group 2A respondents' objection document as a whole that this is a complaint that the claimants did not give evidence supporting the experts' conclusions or opinions. In relation to some passages the applicant and the respondents were in disagreement as to whether there was supporting Aboriginal evidence. It is appropriate to resolve such a dispute in final submissions rather than on an objection to admissibility. In any event, even if there was no supporting Aboriginal evidence, that does not result in the exclusion of the experts' evidence. As I have said, the Joint Report was filed before any Aboriginal evidence had been heard. The intent behind Lee J's order was that the Aboriginal evidence would be later in time. It was nevertheless contemplated by the order that the Joint Report would be used in evidence. In those circumstances, I reject the submission that parts of the Joint Report must be excluded because they are based on data then available to the experts rather than on evidence that did not exist when it was compiled. The weight to be accorded particular conclusions or opinions may be affected by the fact that there is no Aboriginal evidence to support it. But that is a different matter.

Gap filling 41 A common objection takes the form - "This matter was the subject of primary evidence and restatement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence". Where the experts cover the same ground as Aboriginal evidence, there is no "gap". The evidence may not be necessary. It may be entitled to less weight than the Aboriginal evidence. But it is not inadmissible merely because it is in the same terms as that evidence. It is to be remembered that the Joint Report was filed before the Aboriginal evidence was given. Where the experts cover a matter not subsequently the subject of Aboriginal evidence, there is no "gap" in the latter in the ordinary sense of the word. Rather, the later evidence is less extensive than the earlier. But that does not render inadmissible the earlier evidence to the extent that it is more extensive. However, given that the applicants were aware of the ambit of the expert evidence, the fact that Aboriginal evidence did not cover the whole of the relevant field may deprive it of much weight. But it does not render it inadmissible.

Dodnun objections 42 Section 3.5 of the Report selects a community within the claim area to illustrate the authors' general contention, made earlier in the section, that claimants have multiple cross‑cutting links to land. Dodnun Aboriginal community is situated on Mt Elizabeth Station. It was selected because Dr Redmond spent a lengthy period in residence there, and immersed himself, and later his family, in the community, developing close links with many claimants there. The objection taken is - "to the extent that this is primary evidence, it could have been given as the Court went to Dodnun. To the extent that opinions or conclusions are based upon these matters, there is no basis for such conclusions or opinions". The material in s 3.5 is detailed and dense. In a theoretical sense, the factual basis for the opinions expressed could have been given by Aboriginal witnesses at Dodnun. The Court took evidence on country over a period of ten days. It was not possible to visit all the places the applicants would have liked the Court to have visited. Nor was it possible for the Court to remain at particular locations for as long as the applicants would have wished. Because of the long distances involved in getting to and from some sites, the need to depart sites punctually so as to visit all sites set down for the day, and to finish evidence on time so as to enable the helicopters to depart in daylight, evidence at some sites was curtailed. That was the case at Dodnun. Some evidence was taken there, from Scotty Martin. Given the timetable that had been drawn up, it would have been impossible in the time available for Aboriginal evidence to have covered even a small part of the material covered by s 3.5. A lot of the experts' factual material is contained in other parts of the Aboriginal evidence, though not specific to Dodnun. What is or is not so covered is appropriately the subject of closing submissions, so as to enable the Court, if appropriate, to attach more weight to matters covered by Aboriginal evidence than to matters covered only by the experts. The Dodnun objection does not go to admissibility.

Relevance objection 43 WAFIC has objected to the admission of material relating to land outside the claim area. Similar objections have been disallowed in relation to witnesses other than those the subject of this ruling. Evidence relating to areas within the Wanjina‑Wunggurr region, though outside the claim area, is relevant because it may throw some light on what happens in the claim area. The best evidence is what occurs in the claim area. But given the way the applicants put their case, this relevance objection cannot succeed. It must remain a question of weight.

Other grounds 44 There are the occasional grounds not covered by what I have said about "basis", hearsay and the five preceding grounds. I will not comment on them here, but will deal with them in the Tables referred to in the next paragraph.

RULINGS ON JOINT REPORT 45 Pages 1 to 23 of the Tables annexed to and forming part of these reasons contain in the first column the paragraph numbers of the material objected to, in the second column the ground or grounds of the objection, and in the third column my ruling on the objection. The general discussion in [15]‑[44] of the range of objections taken enables them to be dealt with in this summary fashion. The Tables do not deal with objections ruled on in the course of the hearing.

RULINGS ON OTHER EXPERT REPORTS 46 Objections to the reports of other experts took the same form as those to the Joint Report. Pages 24 to 34 of the Tables contain rulings on those objections. Again they do not deal with objections ruled on in the course of the hearing. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitor for the Applicants: Kimberley Land Council

Counsel for the First Respondent: V Hughston SC and G Ranson

Solicitor for the First Respondent: Crown Solicitor for the State of Western Australia

Counsel for the Second Respondent: M Gregory

Solicitors for the Second Respondent: Minter Ellison

Counsel for the Group 2A Respondents: G Donaldson

Solicitors for the Group 2A Respondents: Blake Dawson Waldron

Counsel for the Third Respondent: M McKenna

Solicitors for the Third Respondent Hunt & Humphry

Date of Ruling: 8 December 2003

JOINT REPORT - OBJECTIONS RULING A. GROUP 2A RESPONDENTS OBJECTIONS (1) Initial Objections Paragraph Grounds Ruling 19 3rd, 4th & 5th sentences - Weight no expressed or discernible basis for the conclusion or opinion 20 Speculation. Basis Unhelpful speculation 25 2nd sentence to end - Weight no expressed or discernible basis for the conclusion or opinion 27 No primary evidence to support conclusion or opinion. Basis Report preceded Aboriginal evidence. Second sentence onwards provides factual basis for opinion in first sentence 28 Final 17 words - Report preceded Aboriginal evidence. Weight. no primary evidence to support conclusion or opinion. Basis 30 No primary evidence to support conclusion or opinion. Basis Report preceded Aboriginal evidence. This is the basis for the last sentence in par 29 65 3rd last line from the words "… and these particular Wanjina …" to the end of the paragraph - Repaired in Redmond oral examination. Source identified. Weight. no expressed or discernible basis for the conclusion or opinion 151 1st sentence - Repaired in Redmond oral examination. Based on ensuing paragraphs. Further, the basis objection is unfounded. The authors' opinions and conclusions are set out in section 3.4. The preceding paragraphs are the factual basis therefor. There is no requirement that the facts be based on admissible evidence in the Report or elsewhere. The facts relied on for opinions must be stated, and they are. Weight. no expressed or discernible basis for the conclusion or opinion

152 No primary evidence to support conclusion or opinion. Basis Report preceded Aboriginal evidence. Otherwise a hearsay objection. Claimants are the informants. Weight. Further, see ruling on par 151. 154 No primary evidence to support conclusion or opinion. Impossible to determine basis. Report preceded Aboriginal evidence. Insofar as hearsay, weight. Opinion/conclusion based on examples given in par 154. Further, see ruling on par 151. 155 Other than the first sentence - Report preceded Aboriginal evidence. To be inferred that Keith Nenowatt and Paddy Neowarra are the informants. Weight. no primary evidence to support conclusion or opinion. Hearsay. 157 Meaningless and incoherent. May require interpretation, but not thereby inadmissible. Basis for opinion in last sentence appears in the bracketed sections preceding it. Further, see ruling on par 151. To the extent that it is comprehensible - basis. 158 1st 6 sentences - Report preceded Aboriginal evidence. Really a hearsay objection. Weight. no primary evidence to support conclusion or opinion. Basis. Unattributed hearsay. 158 from 9th sentence to end - Report preceded Aboriginal evidence. Really a hearsay objection. Weight. Further, see ruling on par 151 no primary evidence to support conclusion or opinion. Basis. 159 3rd sentence to end - Report preceded Aboriginal evidence. Factual basis is in par 152. Weight. Further, see ruling on par 151 no primary evidence to support conclusion or opinion 161 No primary evidence to support conclusion or opinion. Basis - said by whom? Which adults and children? Report preceded Aboriginal evidence. Really a hearsay objection. Paddy Neowarra is an informant. Weight. 162 Other than last sentence - May be unnecessary, but not thereby inadmissible. Weight. this matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. 162 Final sentence - Report preceded Aboriginal evidence. See ruling on par 151 no primary evidence to support conclusion or opinion. 163 No primary evidence to support conclusion or opinion. Evidence of these facts cannot be given by the authors. Report preceded Aboriginal evidence. Sources are given. Hearsay. Weight. 164 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Field work. Observations by authors. Hearsay. Weight. Further, see ruling on par 151. 165 No primary evidence to support conclusion or opinion. Attributed by whom? Report preceded Aboriginal evidence. Attribution is by claimants. Weight. 166 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Really a hearsay objection. Weight. 167 Final 2 sentences - Report preceded Aboriginal evidence. See ruling on par 151. no primary evidence to support conclusion or opinion. 169 No expressed or discernible basis for the conclusion or opinion. This opinion/conclusion consequentially fails. Basis in preceding examples. See ruling on par 151. 172 5th to 8th sentences - Report preceded Aboriginal evidence. Field work observations by authors. Further, see ruling on par 151. no primary evidence to support conclusion or opinion. Basis. 172 9th and 10th sentences - May be unnecessary, but not thereby inadmissible. Hearsay. Weight. this matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Said by whom? 173 3rd sentence - Report preceded Aboriginal evidence. May be unnecessary, but not thereby inadmissible. This sentence is an asserted fact in support of opinion in first sentence. Further, see ruling on par 151. no primary evidence to support conclusion or opinion. This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. 174 Final sentence ‑ no expressed or discernible basis for the conclusion or opinion. Opinion based on earlier part of paragraph. Further, see ruling on par 151. 175 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Second sentence supports opinion in first. Further, see ruling on par 151. 176 No primary evidence to support conclusion or opinion. No expressed or discernible basis for the conclusion or opinion. Report preceded Aboriginal evidence. Basis is in pars 174 and 175. See "in this way" in par 176. Further, see ruling on par 151. 178 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. The opinion is in the last sentence. The factual basis precedes it. Further, see ruling on par 151. 179 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Field work and genealogies. Further, see ruling on par 151. 180 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. See ruling on par 151. 181 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. See ruling on par 151. 182 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Facts on which opinion is based are stated earlier. Further, see ruling on par 151. 186 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. See ruling on par 151. 190 3rd sentence to end - Report preceded Aboriginal evidence. See ruling on par 151. no primary evidence to support conclusion or opinion. Basis. 191 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 194 no expressed or discernible basis for the conclusion or opinion. Really a hearsay objection. Weight. 195 1st sentence - Basis is in s 3.1. no basis for the conclusion. 197 No expressed or discernible basis for the conclusion or opinion. Facts, not conclusion or opinion. See ruling on par 151. 198 No expressed or discernible basis for the conclusion or opinion. Facts, not conclusion or opinion. An example of what is said in par 197. Further, see ruling on par 151. 199 Basis Facts, not conclusion or opinion. An example of what is said in par 197. Further, see ruling on par 151. 201 1st 6 sentences - Basis is in balance of paragraph. Rumsey's linguistic expertise. no expressed or discernible basis for the conclusion or opinion. 203 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 205 Point 1 - Basis is what appears in section 3. Further, see ruling on par 151. no expressed or discernible basis for the conclusion or opinion. Part 3.5 To the extent that this is primary evidence, it could have been given as the court went to Dodnun. To the extent that opinions or conclusions are based upon these matters, there is no basis for such conclusions or opinions. See "Dodnun Objection" in par [41] of reasons. 214 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Really a hearsay objection. Weight. 222 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. These are facts, not opinion or conclusion. Redmond lived at Dodnun for 12 months. The authors' conclusions and opinions are set out in s 3.5.3. 223 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. See ruling on par 222. 224 No expressed or discernible basis for the conclusion or opinion. Report preceded Aboriginal evidence. See ruling on par 222. 225 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 228 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. May be unnecessary, but not thereby inadmissible. Really a hearsay objection. To be inferred that Paddy Wama is informant. Weight. Further, see ruling on par 222. 229 No expressed or discernible basis for the conclusion or opinion. First sentence unexceptionable. To be inferred that Maudie White is informant. Weight. Further, see ruling on par 222. 230 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. May be unnecessary, but not thereby inadmissible. Authors give examples, followed by their explanation of their significance. Weight 231 No expressed or discernible basis for the conclusion or opinion. See ruling on par 222. 232 No expressed or discernible basis for the conclusion or opinion. Opinion based on preceding facts. 233 Hearsay Weight 234 No expressed or discernible basis for the conclusion or opinion. No opinion or conclusion expressed. All descriptive. Further, see ruling on par 222 235 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight 236 Other than 1st 2 sentences - Explanation by expert of connections referred to in second sentence. Further, see ruling on par 222. no expressed or discernible basis for the conclusion or opinion. 237 Hearsay To be inferred that Rastus is informant. Weight 238 Hearsay To be inferred that Rastus is informant. Weight 241 No primary evidence to support conclusion or opinion Report preceded Aboriginal evidence. 242 From the words on the 4th line "… a man may also …" to the end of the paragraph - Report preceded Aboriginal evidence. no primary evidence to support conclusion or opinion. 243 No primary evidence to support conclusion or opinion. Report preceded Aboriginal evidence. 244 No expressed or discernible basis for the conclusion or opinion. Conclusion based on preceding paragraphs 245 No expressed or discernible basis for the conclusion or opinion. Really a hearsay point. Weight 246 No expressed or discernible basis for the conclusion or opinion. See ruling on par 222. 247 No expressed or discernible basis for the conclusion or opinion. See ruling on par 222. 248 No expressed or discernible basis for the conclusion or opinion. See ruling on par 222. 249 No expressed or discernible basis for the conclusion or opinion. Really a hearsay objection. Weight. Further, see ruling on par 222. 250 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight 251 No expressed or discernible basis for the conclusion or opinion. Really a hearsay point. To be inferred that Miriji is informant. Weight 252 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight 253 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight 254 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight 255 No expressed or discernible basis for the conclusion or opinion. Observations and field work at Dodnun community. Further, see ruling on par 222. 256 No expressed or discernible basis for the conclusion or opinion. No opinion or conclusion involved. Basically a factual, descriptive account. 257 Other than final sentence - May be unnecessary, but not thereby inadmissible. Weight. This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. 257 Final sentence - Facts and conclusion are set out. Proof of facts not required for admissibility. See ruling on par 222. no basis for the conclusion or opinion. 259 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 260 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 261 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 262 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 264 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 265 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 266 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. May be unnecessary, but not thereby inadmissible. Weight. 277 First 9 words of first sentence - Observation, historical references, field work. no expressed or discernible basis for the conclusion or opinion. 290 No expressed or discernible basis for the conclusion or opinion. Statement of fact, not opinion or conclusion. Redmond travelled there. 292 3rd & 4th sentences - Statement of fact, not opinion or conclusion. no expressed or discernible basis for the conclusion or opinion. 293 No expressed or discernible basis for the conclusion or opinion. Conclusion based on fact. 294 Second and third sentences - May be unnecessary, but not thereby inadmissible. Status of Dann proved by him. this matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. 295 Second sentence - May be unnecessary, but not thereby inadmissible. Weight hearsay. This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. 295 Final two sentences - Really a hearsay objection. Weight. hearsay. Basis. 298 No expressed or discernible basis for the conclusion or opinion. 1st sentence unexceptionable. As to balance, really a hearsay objection. Weight. Most of this paragraph is proved by Jack Dann. 302 From the words, "… and he was himself married …" on the 3rd last line to the end - Really a hearsay objection. Weight. Last sentence is proved by Jack Dann. no expressed or discernible basis for the conclusion or opinion. 303 No expressed or discernible basis for the conclusion or opinion Statement of fact not opinion or conclusion. 1st sentence proved by Barney U. Second sentence - weight. 304 No expressed or discernible basis for the conclusion or opinion Really a hearsay objection. Weight. Much of this paragraph is proved by Eileen, Mandy's daughter. T 4273 onwards 305 No expressed or discernible basis for the conclusion or opinion Observation, field work. Facts, not opinions or conclusions. 311 1st sentence - May be unnecessary, but not thereby inadmissible. Weight. this matter was the subject of primary evidence and restatement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence 311 2nd & 3rd sentences - Observation, field work. Facts, not opinions or conclusions. no expressed or discernible basis for the conclusion or opinion 311 Final two sentences - Observation, field work. Facts, not opinions or conclusions. no expressed or discernible basis for the conclusion or opinion 315 No expressed or discernible basis for the conclusion or opinion Observation, field work. Facts, not opinions or conclusions. 318 Hearsay. Basis Facts, not opinions or conclusions. Hearsay. Weight 319 No expressed or discernible basis for the conclusion or opinion Observation, field work. Facts, not opinions or conclusions. 320 No expressed or discernible basis for the conclusion or opinion Observation, field work. Facts, not opinions or conclusions. 321 No expressed or discernible basis for the conclusion or opinion. Observation, field work. Facts, not opinions or conclusions. 322 No expressed or discernible basis for the conclusion or opinion. Observation, field work. Facts, not opinions or conclusions. 324 Final 2 sentences - Observation, field work. Facts, not opinions or conclusions. no expressed or discernible basis for the conclusion or opinion. 325 No expressed or discernible basis for the conclusion or opinion. Observation, field work. Facts, not opinions or conclusions. 327 2nd sentence - Opinion based on stated facts no expressed or discernible basis for the conclusion or opinion. 345 Final 2 sentences - Weight hearsay. 358 2nd to 5th sentences - Really a hearsay objection. Weight. no expressed or discernible basis for the conclusion or opinion. 358 6th sentence - Report prepared before Aboriginal evidence. To be inferred that Paddy Neowarra is the informant. Weight no primary evidence to support conclusion or opinion. Basis. 358 7th sentence to end - Weight hearsay. 362 1st sentence - Weight hearsay 362 3rd to 6th sentences - Observations and field work. Facts, not conclusion or opinion. Partly hearsay. Weight no expressed or discernible basis for the conclusion or opinion 365 2nd sentence to end - Footnote 52 - Bunuba people sufficiently identified. Ngarynyin people named. Weight. hearsay. Basis. 366 Hearsay. Basis. Really a hearsay objection only. Weight. 367 Hearsay. Basis. Really a hearsay objection only. Ngarynyin people are named in par 365. 389 2nd sentence - Unnamed claimants "suggests" - weight (if any) hearsay 390 Hearsay. No expressed or discernible basis for the conclusion or opinion Unnamed claimants "suggests" - weight (if any) 391 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. May be unnecessary, but not thereby inadmissible. Weight. Not a basis point. Opinion in first sentence. Facts in ensuing sentences. 392 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Mr King was available to give evidence. Basis. May be unnecessary, but not thereby inadmissible. Otherwise, really a hearsay objection. Weight in light of fact that King was available but did not give evidence. 397 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Observations and field work of authors. Not a basis point. Conclusion preceded by observed facts 398 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. May be unnecessary, but not thereby inadmissible. Observations of authors. Not a basis point. 399 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Observations of authors. Not a basis point. 400 Mr Neowarra gave evidence. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. May be unnecessary, but not thereby inadmissible. If any gaps - weight in view of the fact that Neowarra gave evidence. 403 Final sentence - Report preceded Aboriginal evidence. no primary evidence to support conclusion or opinion. 404 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. May be unnecessary, but not thereby inadmissible. Really a hearsay objection rather than basis. Unidentified informants. Weight. 405 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. May be unnecessary, but not thereby inadmissible. Jack Dann not mention Wamarn. A gap. Weight. 406 Other than the 1st sentence - May be unnecessary, but not thereby inadmissible. Partly proved by Paddy Neowarra: this matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. 410 This matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Basis. May be unnecessary, but not thereby inadmissible. Not a basis point. Weight. 411 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Really a hearsay objection. Unidentified informants. Weight. 412 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Really a hearsay objection. Unidentified informants. Weight. 413 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Really a hearsay objection. Unidentified informants. Weight. 416 Unless all instances are outlined in full, there is an insufficient basis for the conclusion or opinion. Weight. 418 1st 2 sentences - Report preceded Aboriginal evidence. Unnamed informants. Weight. no primary evidence to support conclusion or opinion. 418 Rest - May be unnecessary, but not thereby inadmissible. If a gap, weight. Tiger Moore proves parts of this paragraph: T226, 228. Hearsay - weight. this matter was the subject of primary evidence and re‑statement by the authors is unnecessary. Evidence of the authors cannot be used to fill gaps in primary evidence. Hearsay. Basis. 419 No expressed or discernible basis for the conclusion or opinion. Generalised statements of fact, unsupported by examples. Weight (if any) 421 No primary evidence to support conclusion or opinion. Basis. Report preceded Aboriginal evidence. Example given. Weight. 422 No primary evidence to support conclusion or opinion. Basis. Really a hearsay point. Unidentified informants. Weight (if any) 423 No primary evidence to support conclusion or opinion. Basis. Really a hearsay point. Unidentified informants. Weight (if any)

(2) Fresh Objections (i) Joint Preface Points 1 Unclear what secondary sources, personal communications etc to whom The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 3 Basis for statement re exclusive and distinctive relationship The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 3 Appears to be meaningless The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 4 The "certain" beliefs etc are not stated. Accordingly, the statement is vague and unclear The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 4 Final sentence - The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. associated by whom? 5 How demonstrated?; what relationship to the region?; what observance and acknowledgment?; what inherited body of laws and customs? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 6 Basis for conclusion/opinion (?) of long period of occupation The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 6 Basis for whatever this paragraph is - ie conclusion or opinion (?) The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 7 What is the greater or lesser extent? Note the submission of Mr Hughston as to joint opinions The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 8 Basis for conclusion/opinion (?) that the laws and customs are observed. Basis for the conclusion/opinion (?) when some only of the authors have read some of the secondary material The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 9 Which do not? How does this affect the extent to which the secondary sources are viewed as authoritative? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 10 Which secondary sources are relevant? Why are some irrelevant? What primary research? Which are "most" cases? Which are the "few" cases? Which present members? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 11 Which data? Which secondary material? Which primary research (and by whom)? What is meant by "substantial"? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 12 Basis? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 13 Which sites? What is the form of recognition? Which claimants? Which sites are mentioned in which secondary sources? What mapping? What sites? What primary research? How has it "helped"? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 14 Which claimants? Which forbears? What are the laws and customs referred to? Which secondary sources? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 15 Basis. Relevance. The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 17 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 18 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 19 Basis. Which sources? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 20 Basis. What primary research? What mapping? Basis for conclusion/opinion (?)? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 21 Basis. What genealogical material? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 22 Basis. What research? Basis for opinion/conclusion (?) as to continuity. Basis for opinion/conclusion (?) as to "substantial". The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 23 Basis. Vagueness - what is "high degree"? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 24 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 25 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 26 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 27 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 28 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 29 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 30 Basis. Hearsay. What form of hearsay is this? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 31 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 32 Basis. What circumstances? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 33 Basis The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 34 Basis. What is the variation? Which sources? What primary research? Why prefer one source to the other? Why is this the "appearance"? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted. 35 Basis. What evidence? What primary research? The Preface is expressed in terms of extreme generality. The Report speaks for itself. Preface not admitted.

(ii) Executive Summary Relevance. Basis This is little more than a guide through the Report. May be used as an aide memoire, but not as evidence.

(iii) Report 10 1st sentence - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis for conclusion/opinion (?) re "traditional connections" 10 2nd sentence - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis for conclusion/opinion (?) re "traditional association" 10 3rd sentence - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis 10 4th sentence - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis. is this opinion/conclusion (?) based solely on McCarthy or otherwise? 10 5th sentence - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis 10 6th sentence - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis 10 7th sentence - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis. Is this hearsay; personal observation; a mixture; of/by whom? 10 8th sentence - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis. Is it solely the discussion at 2.4 and 3? 10 Rest - An overview summarising later conclusions and opinions. At this stage conclusions and opinions largely unsupported. May be used as an aide memoire, but not as evidence. basis 11 1st sentence - Explanatory, not evidence. basis. What is basis for exemplification? Why select some? 12 1st sentence - A matter for submissions, not evidence. basis 12 2nd sentence - A matter for submissions, not evidence. basis. Which claimants? When? Which consultants? 12 Rest - Matters for submissions. Explanation of claimants' case. Not a matter for expert evidence. basis. 14 1st sentence - Authors qualified to make this statement basis 17 3rd sentence - Difficult to understand, but not thereby inadmissible. A matter for submissions. meaningless when read with the footnote (at p 141) Footnote Basis Rumsey qualified to speak about language. 3 17 5th sentence - Observation, field work. basis. What is the expertise of the author/s(?) to express this opinion/conclusion? 17 6th sentence - Objection not survive preceding rulings. basis 17 7th sentence - Basis stated in s 2.1. basis 19 6th sentence - Not a basis point. A simple comparison. basis 21 4th sentence to end - May be unnecessary, but not thereby inadmissible. basis. Why this evidence is provided in this form when primary evidence was led 24 1st sentence - Weight. basis. Relevance if this is "very broad" 24 2nd sentence - Basis is in the ensuing Rumsey facts. basis 24 3rd sentence - Dr Rumsey only. basis. Is this evidence of Dr Rumsey only or of Dr Redmond also? 26 Basis. Why this evidence is provided in this form when primary evidence was led. May be unnecessary, but not thereby inadmissible. 28 1st sentence - Evident in the paragraph as a whole. basis for conclusion/opinion(?) that this is celebrated in a form or made evident 28 2nd & 3rd sentences - Unattributed hearsay. Weight (if any). must be hearsay but not attributed 29 1st sentence - Observation, field work. basis 29 2nd sentence - Observation, field work. basis 29 3rd sentence - Observation, field work. basis 29 4th sentence - Observation, field work. basis 40 Final sentence - Justifiable inference for the authors. basis 41 3rd sentence - Observation, field work. basis 41 10th & 11th sentences - Observation, field work. basis for conclusion/opinion(?) that these were Worrorran or distinctive or unique. How can these things be shown - ie basis 44 Last sentence - Weight (if any) hearsay 45 2nd sentence - Weight (if any) hearsay 45 3rd sentence - Weight (if any) basis. What recent mappings 45 4th sentence - Statement of fact, not opinion. basis 47-54 The authors have no expertise in these matters. It is assumed that it is sought to be admitted solely for the purpose of supporting the conclusion reached as to occupation etc as at 1829. If so it is unobjectionable. Admitted solely to support conclusions reached as to occupation etc as at 1829. 55-58 The authors have no expertise in these matters. It is assumed that it is sought to be admitted solely for the purpose of supporting the conclusion reached as to occupation etc as at 1829. If so it is unobjectionable. With the exception of the non‑ archaeological material in the second sentence of par 55, admitted solely to support conclusions reached as to occupation etc as at 1829. 59-63 The authors have no expertise in these matters. It is assumed that it is sought to be admitted solely for the purpose of supporting the conclusion reached as to occupation etc as at 1829. If so it is unobjectionable. Admitted solely to support conclusions reached as to occupation etc as at 1829. 64-66 The authors have no expertise in these matters. It is assumed that it is sought to be admitted solely for the purpose of supporting the conclusion reached as to occupation etc as at 1829. If so it is unobjectionable. Admitted solely to support conclusions reached as to occupation etc as at 1829. 139 1st sentence - Bracket portion disallowed basis, unless the later ethnography is specified 140 1st sentence - The context shows that "three aspects" means the "four features" referred to in par 139 meaningless - what three aspects? 140 2nd sentence - Fact, not opinion or conclusion. Weight. basis for conclusion/opinion (?) as to importance. Footnote 38 cannot be basis for this 141 Basis for conclusion/opinion (?) that this is "specific" or "distinctive" First sentence - fact not opinion 2nd sentence - observation, field work 3rd sentence - observation, field work 4th sentence - experts entitled to disagree with Capell 141 2nd sentence - As stated basis 142 Basis Conclusion based on preceding material. Weight to be attributed to "reasonable to conclude" can be assessed by the Court 152 4th sentence - Weight. hearsay 152 Rest - Sources referred to impossible to discern the basis for these conclusions/opinions (?) 156 Basis Field work. T5758 158 7th sentence - By Ngarynyin people referred to in preceding sentence. Weight (if any). basis - believed by whom? 158 8th sentence - Ngarynyin people. Weight (if any). basis - believed by whom? 159 1st sentence - Ngarynyin people. Weight (if any). basis - seen by whom? 160 Basis. If hearsay (and the parties have no idea of knowing - primary evidence of this was not led). Further - in the 3rd sentence - whose "sense" Undisclosed informants. Weight if any. 170 This opinion/conclusion consequentially fails [This should probably be directed to par 169.] Weight in light of preceding ruling. 173 1st & 2nd sentences - Lack of supporting evidence goes to weight. The Jack Dale example provides support for the second sentence. basis 177 Basis Authors qualified to express views in first three sentences. What the fourth sentence means is a matter for argument. Last sentence hearsay. Weight. 183 Basis Basis is in footnote 44 184 Basis Follows from ruling on par 183 187 Final 2 sentences - Second last sentence ‑ in the absence of statistical evidence, of little weight. Last sentence ‑ just an indication of what is to be found in s 3.5 basis 189 3rd sentence to end - Mere assertion. Weight basis 195 2nd sentence to end - Sources as stated in s 3.1. Last three sentences - weight. basis 215 Basis Field work, genealogies, observations on site. 219 Basis Field work, genealogies, observations on site. 220 Basis Field work, genealogies, observations on site. 221 Basis Hearsay. Weight 226 Basis Partly hearsay. Weight 227 Basis Field work, genealogies, observations 239 Basis Observations, field work 240 Basis Observations, field work 267-271 As basis fails - conclusions consequentially fail Weight 278 3rd sentence - Section 3.5. Weight ("most") basis for conclusion/opinion (?) that "most" 278 4th sentence - Weight ("high rate") basis for conclusion/opinion (?) that "high rate" 278 5th sentence - Weight ("great majority") basis for conclusion/opinion (?) that "great majority" 279 1st sentence - Weight ("some people") basis for conclusion/opinion(?). Which people? This cannot be tested 279 2nd sentence Weight ("some people") basis for conclusion/opinion(?). Which people? This cannot be tested 281 Last sentence - Authors opinion based on the words and their meanings basis 292 1st & 2nd sentences - Field work, observations. basis 295 1st sentence - Field work, observations. basis 295 3rd sentence - Field work, observations. basis 296 1st 2 sentences - Weight. Historical evidence is elsewhere. basis 296 4th sentence - Weight. Historical evidence is elsewhere. basis 296 Last sentence - Weight. Historical evidence is elsewhere. basis 297 No expertise Redmond has sufficient expertise to say this

299 Basis Weight 302 1st sentence - To be inferred that informant is Jack Dale. Weight. Dale gives evidence of this: T 5123 basis 306 Basis Undisclosed Immintji sources. Weight (if any) 307 Basis Observation, field work 308 3rd sentence to end - Facts are stated. Weight basis 311 4th & 5th sentences - Observation, field work. Redmond at Dodnun no expressed or discernible basis for the conclusion or opinion 312 3rd sentence to end - Observation, field work. Court visited the community, viewed the school and saw the mural basis 314 Basis Observation, field work 316 Basis Observation, field work 324 1st 3 sentences - The first sentence is proved by other evidence. Otherwise observation, field work basis 326 Basis. Authors lack expertise to make conclusion/opinion (?) Opening sentences proved by historical evidence. Last two sentences proved by Maisie Jodba and her son Matthew Martin 327 1st sentence - Weight basis 329 2nd sentence - Basis is said to be in sections 3.5 and 4.1 basis 330 Basis; hearsay Basis as stated. Observation and field work. Partly hearsay. Weight. Map 3 Basis; hearsay Basis as stated. Observation and field work. Partly hearsay. Weight. 335 Basis Basis for second sentence as stated. First sentence partly hearsay. Weight. 336 Basis Basis as stated 337 Basis As stated. Otherwise weight attaching to probability 339 Basis Basis as stated. Hearsay. Weight 340 Basis to the extent that the conclusion relied upon earlier inadmissible material Weight. Earlier objected to material admitted. 345 2nd sentence - Not a basis point. Research - a negative result either way basis 350 Basis Informants Tiger and Morton Moore, Alanbar and Paul Chapman. Partly supported by Tiger's and Morton's own evidence. Ethnographers Petri and Lommel. Concluding sentences based on par 351 351 Basis Basis is Elkin, Campbell and authors' research as stated in par 360 ("as discussed below") 354 Last 2 sentences - Informants Ngarinyin people. Hearsay. Weight basis 356 Basis Observation and field work, and conclusions drawn therefrom [The Court went to a selection of sites with different types of art work] 357 Basis Oldest Ngarinyin claimants, Tiger and Morton Moore. Weight. First sentence also based on field work. 360 Basis Unnamed Ngarinyin and Kija informants. Named informants - Bruce Nulgit, Nola Jowil, Wallace Midmi. Weight. Conclusion in seventh sentence based on preceding information. 361 Basis Redmond's viewing of sites. Unidentified informants. Weight. 362 Basis Identified informant Midmi. Unidentified informants. Expert opinions based thereon. Weight. 363 2nd sentence to end - Elkin and Rumsey's field work. basis 364 Basis A permissible comparison for experts to make. 384 2nd sentence - Final sentence may explain the impossibility. Weight. basis for conclusion that this not possible 387 Basis Unattributed hearsay. Weight. 388 Basis Partly hearsay. Weight. 389 Basis. Believed by whom? Partly unattributed hearsay. Weight. 393 Basis Sources stated. 394 Basis No source of information cited. Weight. 395 Basis Visits to sites. Observation. Partly hearsay. Weight. 396 Basis Unattributed hearsay. Weight. 401 Basis. Consequentially inadmissible. Weight. Preceding material not disallowed 402 Basis No source of information cited. Weight. 403 Basis No source of information cited. Weight. 406 Basis See earlier 406 ruling 407 Basis Source as stated. Observation, field work 408 Basis Hearsay. Weight 409 Basis Weight (if any) 414 No primary evidence to support conclusion or opinion. Basis Report preceded Aboriginal evidence. Weight (if any) 415 Basis Weight 420 Basis. Hearsay. Weight 424 to end All conclusions consequentially fail. Conclusions. Weight in view of preceding rulings.

B. FIRST RESPONDENT'S OBJECTIONS To a large extent the first respondent's objections overlap those of the Group 2A respondents. The table below deals only with the objections that differ from those dealt with in the earlier table. 4 2nd & 3rd sentences - Merely a guide as to what is contained later in the Report. May be used as an aide memoire, but not as evidence. Speculation, with no real basis provided for the conclusion offered 7 From the words "given that" to the end - The whole paragraph is a legal submission and not evidence. this is not an "expert opinion" 13 Form Irrelevant 14 From the penultimate sentence commencing "Most of the claimants" to the end - Weight unspecified hearsay 15 Form. Factual basis not stated. Hearsay. An overview summarising later conclusions and opinions. Basis is provided later in Report. 16 Form. Factual basis not stated. Hearsay. An overview summarising later conclusions and opinions. Basis is provided later in Report. 43 The last three lines commencing with the words "It would" - Cross‑examined in. See Rumsey X‑Examination T6247‑8. In any event, a permissible conclusion or inference. Note that at T6248 Rumsey says he does not mean over the whole region; just occupation within the region. speculation 151 1st sentence - Not thereby rendered inadmissible. form. This is a conclusion that the Court can draw, based upon the Aboriginal evidence. 157 Form. Hearsay. Factual basis not disclosed or proved. Weight. 168 Form. Hearsay. Factual basis for the 1st sentence not stated or proved and for the 2nd sentence not proved. Weight. 206 The sentence commencing "As the reader" - Not thereby rendered inadmissible. Form. Hearsay. The Court can itself draw conclusions from the primary evidence. 276 Form. Hearsay or conclusion based on upon unspecified hearsay. Weight. 281 The last sentence is speculation. Weight. 290 The 2nd and 3rd sentences - Weight. form. This is evidence that could and should have been given by the Aboriginal witnesses. 291 All except the last sentence - Ground of objection unclear. Basis for opinion in second sentence is contained in the last sentence, which is not objected to. First sentence - field work and observations. form. 301 The word "traditional" in the last sentence - Weight. basis for that conclusion not stated 309 Form. Hearsay. Basis not stated. This is evidence which could and should have been given by the Aboriginal people identified in the paragraph. Weight. 313 Form. Hearsay. Basis not disclosed. Phillip Growan, who is said to serve a custodial role, was not called to give evidence. Weight. 331 Last sentence, from the words "possibly as a" to the end - Permissible speculation. speculation

VEITCH REPORT - WAFIC'S OBJECTIONS Pages Grounds Ruling 14-15 Not within witness's expertise; outside claim area Question 6(a) (pages 9‑15 and 16‑18) disallowed T5929 17 Islands outside claim area - irrelevant Question 6(a) (pages 9‑15 and 16‑18) disallowed T5929 18 Outside witness's expertise Question 6(a) (pages 9‑15 and 16‑18) disallowed T5929 19 5th sentence of 2nd paragraph - Disallow - remote hearsay (Lee). Not in Mabel's own evidence. hearsay recitation of hearsay 20 1st & 3rd sentence of 2nd paragraph - island outside claim area. Hearsay Not thereby inadmissible Weight. Blundell mentions High Cliffy Island/Woolagoodja at T5331‑2 22 1st sentence of 2nd paragraph - outside claim area Hearsay Not thereby inadmissible Weight 22 Last sentence of third paragraph - outside claim area Hearsay Not thereby inadmissible Weight 22 1st sentence of 5th paragraph - Weight. Conceded that Blundell qualified as an archaelogist: T5964. hearsay 23 2nd sentence of 1st paragraph - Weight hearsay 23 1st sentence 3rd paragraph - Weight "where inter-tribal trading had occurred". Hearsay. No basis. 23 Last sentence of 5th paragraph - Weight. Semble covered by concession at T5964 hearsay 23 5th sentence of last page - Disallowed (p 19 5th sentence of 2nd paragraph) hearsay upon hearsay 24 Last sentence of 1st paragraph - Weight hearsay 27 2nd sentence of 2nd paragraph - Disallowed (p 17 5th sentence of 2nd par) hearsay upon hearsay 31 1st 2 paragraphs - Disallowed on "culture" limb of objection outside claim area and a material culture not exhibited within claim area 32 2nd last line to end of par on p 33 - Disallow third sentence - remote hearsay (Lee). Balance, weight. recitation of hearsay, alternatively hearsay recitation of anthropologist opinion 35 last paragraph - Qualified to express opinion in last sentence. Balance admitted not for truth of statements, but to explain context for last sentence. The preceding material is amply proved by Aboriginal and other evidence. anthropological opinion - not qualified. Hearsay or based on hearsay 39 Last paragraph - Not archaeological opinion. See also material culture ruling on p 31 1st 2 paragraphs not an archaeological opinion; outside claim area; hearsay Appendix Hearsay recitation of facts not before Court. Mabel King - hearsay upon hearsay Not admitted - Stokes available to give evidence, but not called. Mabel King - remote hearsay (Lee). Exclusion not affect Veitch's evidence about Stokes' sites, to which no objection was taken. 2 53-55 Statistical analysis of sites outside claim area or of sites including sites outside claim area Not admitted except for Table 10 (first three columns) and Graph 4 (2 claim areas).

PROFESSOR BLUNDELL'S EVIDENCE - OBJECTIONS RULING A. BLUNDELL ANTHROPOLOGICAL REPORT (1) WAFIC'S objections 43 Hearsay Semble based on "informants of the 1970s". Weight 44 Hearsay Semble based on "informants of the 1970s". Weight 45 Hearsay Semble based on "informants of the 1970s". Weight 47 Hearsay Unidentified informants apart from Woolagoodja. Weight. 50 Hearsay; not supported by evidence in transcript. Report preceded evidence. Weight. 52 Hearsay; not supported by evidence in transcript. Report preceded evidence. Observations on country with Sam Woolagoodja in the 1970s and with Donny Woolagoodja during 1990s. Observations of people enacting the Wurnan including at the Diabetes Camp. Discussions with people and information provided: T5368. To the extent hearsay, weight. 85 Last line - hearsay Weight 91 Hearsay Weight

(2) Group 2A Objections 43 No basis "documented cases" (par 42) - Weight 44 No basis "documented cases" (par 42) - Weight 45 No basis "documented cases" (par 42) - Weight 47 No basis Informants Woolagoodja and his children 50 No basis Basis as stated 52 No basis Observations on country with Sam Woolagoodja in the 1970s and with Donny Woolagoodja during 1990s. Observations of people enacting the Wurnan including at the Diabetes Camp. Discussions with people and information provided: T5368. To the extent hearsay, weight. 85 Last line - Sam Woolagoodja example is in par 47 no basis 91 No basis "more recent fieldwork", ie since the work referred to in par 88 and including 1994 (par 89)

B. ARTICLE - "Symbolic Systems and Cultural Continuity in Northwest Australia" (1982) WAFIC's Objections Page Grounds Ruling 6 1st column, 5th sentence to end of 1st paragraph - Field work. In any event, weight. hearsay; no basis for conclusion 7 2nd column lines 12-14 - Informant identified in oral evidence as Elkin Oombagai. Weight hearsay 8 2nd column 2nd sentence to end of paragraph - Weight hearsay 9 2nd column 4 lines from bottom to 8th line on page 10 - Weight hearsay

C. ARTICLE: "Hunter‑Gatherer Territoriality" (1980) WAFIC's Objections Whole Irrelevant because primarily based on people outside claim area; hearsay; basis This objection has consistently been rejected in other contexts. Evidence about people and sites outside the claim area, but within the claim region, is relevant, especially if proximate to boundary of claim area. Weight. article Alternatively: 104 map Irrelevant so far as relates to area outside claim area See above. 105 Hearsay insofar as based on field work and secondary sources Weight 106 Last full sentence - Weight hearsay 108 Second full paragraph - Weight. Informants identified at T5314‑5315 and in Exhibit 22 hearsay 111 Diagram - Weight. See whole article ruling irrelevant so far as relates to clan estates outside claim area 113 1st 2 sentences of 2nd paragraph - Weight hearsay 113 3rd full paragraph - Weight hearsay Irrelevant so far as relates to clan estates outside claim area Weight. See whole article ruling 113 3rd to 6th sentences of last paragraph - Weight hearsay

D. ARTICLE: "Art of Country" (2000) (1) WAFIC'S Objections Whole Primarily based on people (Worrorra) outside claim area See first ruling in C above. Paper 8 2nd sentence of first full par to end thereof - Weight hearsay 8 Last sentence to end 1st par on p 9 - Weight hearsay 10 Last sentence and footnote 40 - Sufficient expertise in history. See T5283‑5284 hearsay and no relevant expertise 11 2nd sentence to foot of p 12 - See first ruling in C above. Weight on both grounds irrelevant - relates to Worrorra person and events outside claim area. Hearsay 14 6th line to end of paragraph - See first ruling in C above. Weight on both grounds. irrelevant - relates to Worrorra person outside claim area. Hearsay. 21 Last 2 sentences of 1st para - Weight. hearsay 23 Last paragraph - See first ruling in C above. Weight on both grounds. irrelevant - relates to Worrorra person and events outside claim area. Hearsay

(2) Group 2a Objections Whole Insufficient basis for opinions and conclusions Weight paper 10 onwards Dealing with current painting practices at Mowanjum - Expert evidence may be unnecessary, but not thereby irrelevant. Weight. Aboriginal evidence was led on this topic. Expert evidence unnecessary

E. Professor Blundell's Oral Evidence T5318 Hearsay Weight T5349 "similarly" - basis Basis appears on T5350 T5353 Lines 22-26 - The fact that little Aboriginal evidence was given by younger people does not render Blundell's expert evidence inadmissible. Weight. information from more recent generation of persons. Very little evidence led for recent generations

SKYRING REPORTS - OBJECTIONS RULING A. GROUP 2A RESPONDENTS (1) Historical Report 17 May 2001 54 2nd para - "since … bush foods" - Weight no basis

(2) Supplementary Report 24 December 2001 Introduction Relevance Allowed 17.5.02 7 2nd par last sentence - The "records" relied on are those set out on following pages no basis 16 2nd par last sentence - The "other records" are identified on following pages no basis 29 First sentence - See ensuing parts of the Report no basis 29 Last paragraph - no basis author not qualified See footnote 62 Author sufficiently qualified 30 1st par 1st sentence - no basis author not qualified The "records" referred to are identified in following pages Sufficiently qualified 43 Last par to p 44 end of 1st par - Weight expressed basis not support conclusion 49 Last line after comma to end of par on p 50 - Basis as stated in footnote 120 no basis Basis for last sentence as stated Footnote 121 too imprecise 50 4th sentence of 1st par Ordinary hearsay - weight double hearsay 51 1st 2 sentences - First sentence: balance of Report no basis Second sentence: cross-examined in 51 3rd sentence - Sufficiently qualified. Opinion based on historical records referred to in Report: T6002 no expertise 59 2nd last sentence 1st par - Weight no basis 59 3rd last sentence 1st par - no basis speculation Basis as stated - "The reports and inquiries analysed in previous chapter" not qualified

Opinion, not speculation Sufficiently qualified 88 Conclusion - 2nd sentence - Balance of Report no basis 88 4th sentence - Weight not follow from preceding sentence

B. WAFIC (1) Historical Report 17 May 2001 10‑11 King section - Not thereby inadmissible outside claim area 11 Stokes section - Not thereby inadmissible outside claim area 19‑20 Last par from "The established" to end of paragraph - First sentence - "Violent frontier" at p 22 et seq no basis balance - footnote 37 23‑26 From "An example" in line 3 to "area" in line 4 of p 26 - Not thereby inadmissible outside claim area 27 Line 1 to end of 2nd par - not thereby inadmissible outside claim area? 28 Line 1 to line 11 - Yes, but not thereby inadmissible. Lines 7‑8 permissible speculation. outside claim area? speculation? 39 From "The establishment" to line 9 or p 40 - Not thereby inadmissible outside claim area

(2) Supplementary Report 24 December 2001 12 Last line to end of par on p 13 - Not thereby inadmissible outside claim area 15 6th last line to end of par on p 16 - Not thereby inadmissible outside claim area 20 1st full par to end of par on p 21 - Not thereby inadmissible outside claim area 24 1st full par - Not thereby inadmissible outside claim area

JEBB REPORTS - RULING ON GROUP 2A OBJECTIONS (1) Preliminary Report 10 December 1999 24 no basis See footnote 50

(2) Supplementary Report April 2002 Appendix 9 5 Last par 4th sentence - Weight (if any) no basis 6 Last par 4th sentence - Field work at Mt Elizabeth and Dodnun no basis 6 Last par 6th sentence - Field work and observation no basis 7 1st par 1st sentence - To be inferred that informant is Howendon. Weight. no basis 7 4th & 5th sentences - To be inferred that informant is Scotty Martin. Weight no basis 8 1st par 7th sentence - To be inferred that Lacys are the informants. Weight. no basis 8 9th sentence - Unexceptionable scandalous 8 10th sentence - Author's opinion based on preceding information provided by Pat Lacy no basis 31 Last par 2nd sentence to end of par on p 32 - Weight hearsay 32 1st par 2nd sentence - To be inferred that informant is Morndinjali. See p 30 first par. Weight no basis 33 1st par 5th to 8th sentences - To be inferred that informant is Billy King. Weight. no basis 146 Sentence beginning "Jowalji's Youth" - Author's inference from conversations with Jowan and Jowalji. Weight. no basis 184 Last par 1st 3 sentences - Really a hearsay objection. Weight. no basis 206 Last par 2nd sentence to end - See footnote 6 no basis 209 1st par ending "work routine" - Named informants. Weight no basis 209 Last par to p 214 end of 1st par - Named informants. Weight hearsay 214 1st par 1st sentence - Weight no basis 220 2nd par to end of 2nd line on p 221 - hearsay author cannot fill gaps in primary evidence. Weight If gap filling, weight. 235 Basis Really a hearsay objection. Weight.

McCARTHY REPORTS ‑ OBJECTIONS RULING A. GROUP 2A RESPONDENTS (1) Report Accompanying Genealogies 10 December 1999 Whole Genealogical evidence not a matter of expertise Such evidence is a matter of expertise. Report (Same ruling made in relation to Vachon evidence 29.5.02)

(2) Supplementary Report 1 April 2002 p 5 2nd sentence Not qualified A matter for submissions, not evidence p 5 4th sentence Not qualified A matter for submissions, not evidence

B. WAFIC (So far as not covered by Group 2A objections) p 5 last sentence of 3rd par Not qualified A matter for submissions, not evidence p 5 last sentence Not qualified A matter for submissions, not evidence

DR RUMSEY'S SUPPLEMENTARY REPORT (1 APRIL 2002) - RULING ON OBJECTIONS (1) GROUP 2A RESPONDENTS 4 Simple commentary on transcript Treat as aide memoire/submission, but not as evidence 5 Simple commentary on transcript Treat as aide memoire/submission, but not as evidence 13 4th sentence last 19 words - Disallow "and I could not point … in evidence" basis 13 Last 11 words - Disallow "and this also … in the evidence" basis 19 Last sentence - Disallow basis 20 Last 11 words - Disallow "now, I believe … the transcript" basis 32‑34 Relevance. Not for witness to comment on Blundell's Report Pars 32 and 33: Rumsey entitled to say that Sansom's attempt to point up differences between Rumsey/Redmond and Blundell is exaggerated or baseless. Not a mere commentary on Blundell. Par 34: Rumsey entitled to say that Blundell's Report supports identified aspects of the Joint Report. 49 Last sentence to par 59 - Aide memoire/submission, but not evidence. simple commentary on transcript

(2) FIRST RESPONDENT par 3 Conclusions from whole of transcript Mere generalised comment on effect of Aboriginal evidence. Submission, not evidence.