Neowarra v State of Western Australia - [2003] FCA 1399 - FCA 2003 case summary — Zoe

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Neowarra v State of Western Australia

[2003] FCA 1399

Federal Court of Australia|2003-12-08|Before: Lee J, Sundberg J

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Source facts

Court

Federal Court of Australia

Decision date

2003-12-08

Before

Lee J, Sundberg J

Source

Original judgment source is linked above.

Judgment (122 paragraphs)

[1]

JUSTICE LEE'S ORDER 1 On 12 March 1999 Lee J directed that the applicants file and serve: "1. … a document or documents being an Outline of Case containing the following: (a) An outline of the facts relied upon to show that at the time of the formation of the colony of Western Australia, an indigenous community held native title by reason of presence on, and connection with, the land of the claim area; (b) An outline of the facts relied upon to show that the applicants are a group of Aboriginal people with ancestral connections to the community referred to in paragraph (a); and (c) An outline of the facts relied upon to show that the applicants acknowledge and observe traditional laws and customs that are based on the traditional laws and customs of the community referred to in paragraph (a). 2. … any reports by expert witnesses upon which the applicants intend to rely to establish the matters addressed in order 1 above, including a statement of the qualifications and experience of each expert witness and an account of the fieldwork and other sources relied upon in preparation of the report."

[2]

JOINT ANTHROPOLOGICAL REPORT 2 Pursuant to Lee J's order, on 10 December 1999 the applicants filed an Anthropological and Linguistic Report prepared by Dr Alan Rumsey and Dr Anthony Redmond (the Joint Report). The Joint Report is headed Anthropological and Linguistic Report by Alan Rumsey and Anthony Redmond with Joint Preface by Daniel Vachon, Kim Doohan, Alan Rumsey and Anthony Redmond 10 December 1999. It is a substantial document, consisting of 140 pages of text (433 paragraphs) and 76 pages of notes, references, indices, appendices, attachments, maps, tables and plates. Why Daniel Vachon and Kim Doohan join with the reporters in the Preface when they are not authors of the Joint Report is not explained. The Preface was written after the substance of the Joint Report had been completed, and is in the nature of an overview of its scope. 3 The Preface is followed by an Executive Summary of Findings and Opinions. This is the only part of the Joint Report that I will attempt to summarize. As will become apparent, the Executive Summary is not evidence in the proceeding, but is received as an aide memoire or submission. The authors say that the claimants are a large group of Aboriginal people with traditional connections to the area shown in Map 1. This map depicts the areas the subject of four adjoining native title claims in the Kimberley, two of which are those now before the Court, and includes the territories associated with the Worrorra, Wunambal and Ngarinyin languages, and several other closely related dialects. The Aboriginal people associated with the region have long been recognised by anthropologists, linguists and by Aboriginal people throughout the Kimberley as having their own distinctive, shared body of beliefs, social and cultural traits and language affinities which bind them together and differentiate them from the neighbouring regions. These include:

[11]

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.

[19]

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:

[35]

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."

[38]

"· 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:

[42]

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.'"

[48]

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."

[70]

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."

[81]

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.

[96]

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

[97]

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)

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(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.

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

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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.

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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

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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).