Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia

Federal Court of Australia|2024-09-26|Before: Murphy J

As to paragraph [2] of the Substituted Statement of Facts, Issues and Contentions (SSOFIC) filed on 31 January 2023, the facts forming the basis for a determination of native title rights and interests of the MW Claim group in the MW Claim area are set out in Schedules A, E and F of the Form 1 filed on 7 January 1999 and comprise: … (e) The MW native title claim group, their parents, grandparents and ancestors have, as far back as living memory and recorded history go, used, occupied and enjoyed the whole of the area claimed in this application, held close ties to the land, maintained Aboriginal traditional law and retained their cultural heritage and spiritual connection with their sacred sites, continued to carry out hunting and fishing and collected bush medicines, ochres and all useful products of the land. They continue to ensure that they control access to and thereby protect their sacred areas. Specifically:

They continue to occupy and live on the land in a traditional manner;
They participate in managing the land and protecting it from degradation;
They continue to hold meetings and perform traditional ceremonies on the land;
They continue to camp, hunt, fish, gather bush tucker, medicines and building materials, and also gather material so make tools and other utensils;
They continue to use, maintain and care for the water resources of the land;
They continue to dig for stones, ochres and other minerals on the land;
They continue to protect the sacred sites and spirituality of the land according to their laws and customs - to this end they conduct, as of right, heritage survey on their land in advance of development;
They continue to protect their heritage and spiritual beliefs against other groups. …

The MW Applicant says that Jack Comeagain (Snr) was a Wajarri man from the Murchison region around the Boolardy area, and consequently, held rights and interests in the [WY Overlap Area] under the system of traditional laws and customs observed by the society to which the MW Claimants and WY People belong. …

The MW Applicant says that Fanny Taylor/Papertalk/Comeagain (also spelt Kummagin/Commigan/Commigain) (also known as 'Mingenoogoo') was the mother of Milly Taylor/Flanagan (born 1905 - 1910/1909), Lottie Hannah (born 1905 - 1910), Jack Comeagain (Jnr) (born 1915), Henry Comeagain (born 1917), May Comeagain (born 1919), Gracie Comeagain (born 1919), Doreen Comeagain (born 1922), David Comeagain (born 1930).

The MW Applicant says that Fanny Taylor married Jack Comeagain (Snr) circa 1915.

The MW Applicant says that, following their marriage, Jack Comeagain (Snr) adopted customarily (or grew up) Fanny Taylor's children from prior to the marriage, namely her eldest daughter Milly, and her second eldest daughter Lottie.

The MW Applicant says that, by reason of her adoption by Jack Comeagain (Snr), Lottie Hannah became entitled to rights and interests in Jack Comeagain Snr's country, which comprises Wadjari country, pursuant to the traditional laws and customs of the normative society to which the MW Claimants and Wadjarri People belong. 78 The MW F&BP provides the following further particulars:

The MW Applicant says that under the system of laws and customs observed by the WY People and Mullewa Wadjari Claimants, the descendants of Lottie Hannah continue to hold the same rights and interests in Jack Comeagain Snr's country. 97 The MW F&BP provides the following further particulars:

The MW Applicant says that Biddy Witamurra born circa 1871 and her daughter Fanny Taylor/Papertalk/Comeagain (also spelt Kummagin/Commigan/Commigain) (also known as 'Mingenoogoo') had a connection in accordance with traditional laws acknowledged and traditional customs observed by WY People and Mullewa Wadjari People to the WY area, including the area in the vicinity of the Murchison River, Woolgarong Station and Billabalong Station. 85 The MW F&BP provides the following further particulars:

The general legal principles guiding the exercise of the Court's power under s 31A(2) of the FCA Act are well known. It is convenient to reproduce McKerracher J's helpful analysis and description of the principles in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3] (with particular reference to summary dismissal being sought by a respondent party, as is the case here): Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;
a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]);
there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship "Sam Hawk" v Reiter Petroleum Ltd (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);
s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);
if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]);
it is clear that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);
s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);
summary dismissal will not apply to 'a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel': Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);
the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);
despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);
the Court does not, in such an application, conduct a 'mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial'. Rather, it 'requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial': Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and
each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

Particular caution needs to be exercised in determining whether summary dismissal should be granted in circumstances where there are factual disputes and the evidence is not in its final form (see Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [43]-[45] per Rares J).

The need for caution before dismissing an action summarily was emphasised by the Full Court in Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4] (see also Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ): … to summarily dismiss a proceeding, and thereby preclude a person from having their case determined on its merits at a final hearing, is a serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success; this is so despite the fact that under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Court Act) the power to summarily dismiss a proceeding is not dependent on the case being "hopeless" or "bound to fail" for it to have no reasonable prospect of success (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [17]-[26]). 57 Summary judgment is granted only "if it is possible to conclude with confidence that there is no reasonable prospect of success": Danthanarayana v Commonwealth [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ); Sop and Sop Pty Ltd v Commissioner for Taxation [2019] FCA 102 at [14]-[15] (Kenny J). This involves practical consideration as to whether the applicants have a more than fanciful prospect of success: Spencer at [25] (French CJ and Gummow J). 58 In Budby on behalf of the Barada Barada People v State of Queensland [2013] FCAFC 149 at [10] (Mansfield, Dowsett and Jagot JJ), the Full Court said: While it is easy to understand the primary judge's frustration with the appellant's dilatory conduct and lack of real progress over a substantial period of time, the discretion to summarily dismiss a proceeding on the basis that it lacks reasonable prospects of success requires not only caution (because a party is thereby deprived of its opportunity for a hearing on the merits) but also an assessment of the substance of the native title claim having regard to the material both available and likely to be adduced. If it appears from that material that there is a real basis for the claim then the mere fact that the claim is in dispute, or that contrary material is available, or that the existing material is preliminary or incomplete is not a proper basis for the exercise of the power of summary dismissal on the ground of lack of reasonable prospects of success. (Emphasis added.) 59 In Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; 235 FCR 40 at [21]-[22] Barker J explained:

The persons to whom the Nanda Overlap Area primarily belonged have historically, from time to time been referred to in that context by some Aboriginal people and/or anthropologists as Tharwada/Tharweera Wadjari, or Nӧkan/Ngugan (Tharwada Wadjari).

The persons sometimes described as 'Tharwada Wadjarri' were a circumcising, linguistically, or sub-linguistically, identifiable group or sub-group of the Wadjarri Society who were recognised at the date of the effective sovereignty as part of a normative society to whom the ancestors of the MW Claimants belonged.

The land included in the MW claim area, sometimes described as 'Tharwada' country is the territory of the serpent or bimara. Greenough River and Murchison River are significant places within that area of land where the bimara is present. Bimara is the Wajarri word for country that was created by the serpent spirit. It includes the land, rock holes, resources and people who belong to that country and have an obligation under traditional law and custom to look after that country and preserve it for future generations. …

The following apical ancestors of the MW claimants were recognised by the Wadjarri Society, sometimes referred to as including Tharwada/Tharweera Wadjari, Nӧkan/Ngugan People, Wadjari Yamatji People and Wadjari People, to whom the ancestors of the MW claimants belonged, as being persons belonging to the Nanda Overlap Area under their laws and customs: (a) Angelina/Angeline (Ninganarri) was a Tharwada Wadjari woman born circa 1883 at Murgoo Pastoral Station, was at Billabalong Station when she gave birth to her daughter Alice Darby in 1902 and was at Woolgorong Station in 1948, the year of her death. Those Stations are wholly or partly within the area of overlap between the MW Remaining Area and the WY Area. Angelina, as taught to Leedham Papertalk by his father, Eric Papertalk, was on that Tharwada country with Alice Darby, Jack Darby and her son-in-law Ned Papertalk. (b) Alice Darby is an apical ancestor of the members of the Papertalk, Merritt, Green, Comeagain, Collins and Collard families referred to as MW claimants in paragraph 3 above. Alice Darby is also associated with Pastoral Stations immediately North of the of the overlap of the MW Remaining Area and WY Area. Alice Darby was a Tharwada person. As taught to Leedham Papertalk by his father, Eric Papertalk, Alice Darby was Tharwada Wadjari and Tharwarda country is located East of the circumcision line, runs Eastward along the Greenough and Murchison Rivers, includes Yallalong Station, Coolcalalya [sic] Station, Meerberrie Station, Billabalong Station, Twin Peaks Station, Yuin Station and extends as far East as the town of Yalgoo. 190 The MW F&BP provides the following further particulars in relation to the extent of Wajarri country, at sovereignty:

The MW Applicant says that: (a) Nanda country is roughly northwest of country, commonly referred to as 'Tharwada country', on the opposite side of the Murchison River. (b) The Nanda people are coastal people. (c) The Nanda people are not traditionally associated with the area on the Eastern side of the Murchison River, commonly referred to as 'Tharwada' or 'Tharwada Wadjari' country. (d) The traditional law is and has been different between the Nanda People to the West of the Murchison River and the people commonly referred to 'Tharwada', 'Tharwada Wadjarri' or 'Wadjarri' to the East of the Murchison River. There is a change of traditional cultural practices and rituals at the Murchison River. The groups on either side of the Murchison River have different traditional cultural practices and rituals. 189 It alleges the following in relation to their asserted Wajarri ancestors' connection to the Nanda Overlap Area, at sovereignty:

My mother's country is around Tallering, Woolgorong, Meebeerie and Billabalong.

By s 31A of the Federal Court of Australia Act the Court may grant summary judgment where it is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding.

In Spencer v Commonwealth of Australia (2010) 241 CLR 118 the plurality (Hayne, Crennan, Kiefel and Bell JJ) at [60] said of the expression "no reasonable prospect" that full weight must be given to it as a whole. Their Honours confirmed that the power to dismiss an action summarily is not to be exercised lightly, but their Honours also emphasised that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. Thus, s 31A(3) provides that the certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action. (Emphasis added.)

Onus of proof and standard of proof 60 It is the MW applicant which alleges: (a) that one or more of Jack Comeagain Snr, Biddy Wittamurra, Fanny Taylor and/or Lottie Hannah should be added as additional apical ancestors to the WY Application, or is a descendant of one of the existing apical ancestors, such that their descendants should be included in the WY native title claim group (WY Issue 1); (b) that, at sovereignty, the WY People held rights and interests in the land and waters of the Nanda Overlap Area in accordance with the traditional laws and customs of the Wajarri Society (Nanda Issue 1); and (c) if the answer to Nanda Issue 1 is "yes", that the WY People have continued to acknowledge and observe, substantially uninterrupted from sovereignty to the present day, their traditional laws and customs such that they have rights and interests in, and a traditional connection to, the land and waters of the Nanda Overlap Area (Nanda Issue 3). It will have the onus to establish those matters in the Separate Questions hearing. However, as the moving party in the summary judgment application, the N&WY applicants have the onus to establish that the MW applicant has no reasonable prospect of success on its case on each of the Separate Questions. 61 The standard of proof in the summary judgment application (and in the Separate Questions hearing) is the ordinary civil standard under s 140(1) of the Evidence Act 1995 (Cth) (Evidence Act), being the balance of probabilities. Section 140(2) of that Act requires that, in deciding whether it is satisfied that a party has proved its case on the balance of probabilities, the Court shall take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged, when determining the degree of persuasion required. Section 140(2) does not only relate to issues of proof so far as the entire case of a party is concerned, but also so far as individual elements of that case are concerned: Leslie v Graham [2002] FCA 32 at [57] (Branson J). As explained in Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [139] (Branson J), s 140(2) recognises that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved and the circumstances in which it is sought to be proved.
The Barber Report 62 Mr Barber, an anthropologist, was briefed by the solicitors for the MW applicant to undertake research in relation to the MW Application and to provide a report to the solicitors for use in the MW Application. Mr Barber was requested to provide opinions on a series of specific questions (the Questions). 63 Relevantly: (a) in Chapter 1 - Introduction, Mr Barber explained the extent of his discussions with the informants that informed his opinions. He said that his informants were Leedham Papertalk, Charmaine Green and Glenda Jackamarra (defined as "the Claimants"). Mr Barber stated:

My father's parents were Alice Darby and Ned Papertalk, and his maternal uncle was Jack Darby. …

The Murchison River and Greenough River have Bimara dreaming stories. The Bimara travels inland from the ocean and down the Murchison River. The Murchison River is an important site of significance because of the Bimara dreaming.

I travelled to the Claim area on 3 August 2023, and held discussions with Claimants about their rights and interests in Mullewa during the period 3 to 13 August 2023. These discussions were primarily held with Leedham Papertalk in Mullewa. Further brief conversations were held with Charmaine Green and Glenda Jackamarra in Geraldton on 13 August 2023 (day returned from Geraldton to Perth).

Further Telephone conversations were held with Leedham Papertalk and Charmaine Green to check details and discussing concepts during the period 14th August 2023 to 17th September 2023. (b) in Chapter III - Literature: Local Organisation of the Claim Area, Mr Barber referred to early historical anthropological research in relation to the Wajarri People and their country. In summary, he opined that Bates (1907-1909) located the Wajarri in the vicinity of the MW claim area; Brown (1912) located the Wajarri in the vicinity of the head of the Murchison River; Tindale (1940 and 1974) located the Wajarri in the MW claim area, although noting some extension of Wajarri interests towards the coast in the post-European contact period; Berndt & Berndt (1977) made similar findings partially in reliance on the works of Bates, Brown and Tindale; and the later work of Thieberger (1993) generally affirmed the location of Wajarri interests and the usage of Wajarri language. (c) in Chapter IV - The Principles of Local and Social Organisation of the Claim Area, Mr Barber noted that the Claimants allege that the MW claim area lies within the broader Wajarri estate. In this chapter: (i) under the sub-heading Adoption (which is relevant to Lottie Hannah, who the MW applicant alleges was a Wajarri person on the basis of adoption), Mr Barber opined:

The Nanda overlap area is an area relates to Tharwarda Wajarri men's law business and initiation rights. I was told that there are Wajarri men's sites in the Nanda overlap area, and as women, we have limited knowledge of those sites.

We were taught that women are not allowed to go to men's sites, and men are not allowed to go to women's sites. …

I was told that Angelina stayed around Murgoo and Meeberrie, and she is buried out at the Old Pioneer Cemetery in Mullewa.

My father and the other old people told me stories about our country. They took me out on country and taught me about my country.

My traditional country is around Murgoo, Boolardy, Berringarra Station, Mount Narryer, Wooramel, and Meeberrie.

I was told that Fanny's husband was Jack Comeagain Senior (Old Jack). We refer to him as Pop. I was told that Fanny met Old Jack in the Murchison area. Old Jack is buried at the Old Pioneer Cemetery in Mullewa.

Senior Wajarri elder Geoffrey Mongoo once said to my partner, Anthony Dann, that he saw Jack Comeagain Junior (the son of Fanny and Old Jack) at the old ceremony grounds up in the Murchison. Only Wajarri ceremony men were allowed to be at the law and ceremony grounds in Wajarri Country. Old Jack and Jack Comeagain Junior were Wajarri law men. 83 The Barber Report expressed the following opinions in relation to Jack Comeagain Snr: (a) in the following passage (earlier set out at [63(c)(iv)] above)) Mr Barber opined (at [159]) that Fanny Taylor married "a Thagarda Wadjari man, Jack Comeagain Snr." In that part of the Barber Report he opined:

I know from what my family told me that the Nanda people do not have initiation rights and do not conduct law business in the Nanda overlap area.

Over time the Tharwarda Wajarri country has been subsumed into the wider Wajarri tribes.

Tharwarda Wajarri country extends to the Murchison River. The west side of the Murchison River is Nanda country, and the east side of the Murchison River is Tharwarda country. … Traditional Law and Custom

Greenough and Murchison Rivers are significant sites of the Bimara.

Bimara is the word for the country that was created by the serpent spirit, which includes the land, the rock holes, the food, the resources and the people who belong to that country.

Fanny and Lottie had a connection to the overlap area through Old Jack, Fanny's husband. I grew up being told by members of my family that Lottie, and her older sister Millie, were Old Jack's daughters. …

I was told about 15 years ago by my late uncle (DC) that Lottie and Millie were the daughters of Ned Papertalk.

I concluded that Lottie was adopted by Old Jack, and considered Lottie to be his adopted daughter. This is what I grew up believing. 102 Mr Barber expressed the following opinions regarding Lottie Hannah. 103 In the passage at [156]-[160] (set out earlier at [83]), Mr Barber opined (at [159]): Fanny 'Judy' Taylor also married an unnamed man and had two daughters Milly Taylor Flanagan and Lottie Hannah. Lottie Hannah had a number of children by unnamed father/s. The children of Lottie Hannah were adopted by Ned Papertalk and Jack Comagain (Snr) both Thagarda Wadjari. These children took the Hannah surname and are regarded as Thagarda Wadjari. 104 The Barber Report does not contain any other references in relation to Lottie Hannah other than in the genealogical information in Appendix 3 or in answer to the Questions asked regarding her. 105 The entry for Lottie Hannah in Appendix 3 said: nm2: Lottie Hannah dob: 1905-1910 cty: Thagarda Wadjari notes: 'grown up', adopted by Jack Comeagain Senior 106 Mr Barber opined as follows on the Questions regarding Lottie Hannah: (i) Question (f): Did Jack Comeagain Senior adopt Lottie Hannah and her older sister, Millie Flanagan? Answer: Jack Comeagain Senior is regarded as having adopted Lottie Hannah and Milly Taylor Flanagan. (ii) Question (g): Does adoption/being 'grown up' by a Wajarri person or In Wajarri Society accord rights and interests in accordance with traditional laws and customs to a person adopted or 'grown up' and are any such rights transmissible to descendants of the person adopted or 'grown up'? If not, what rights, if any, does an adopted Wajarri person have in Wajarri Society? Answer: Adoption of an infant by a Wadjari person is a means by which that infant becomes part of Wadjari society and thereby has rights and interests in the Wadjari estate. (iii) Question (k): Who was Lottie Hannah's biological father? Answer: Lottie Hannah's biological Father is unknown. (iv) Question (l): Was Lottie Hannah a Wajarri person? Answer: Lottie Hannah was a Wadjari person. She was adopted under the laws and customs of the Wadjari by Jack Comeagain a Thargarda Wadjari person. (v) Question (m): Did Lottie Hannah possess rights and interests under traditional law and custom in any Mullewa Wadjari Remaining Claim Area [meaning the Nanda Overlap Area] or Wajarri Yamatji area [meaning the WY Overlap Area], and if so, were those rights applicable to or exercisable in relation to all or any part or parts of the Mullewa Wadjari Remaining Claim Area or Wajarri Yamatji area? Answer: Lottie Hannah is regarded as a Wadjari person as she was adopted by Jack Comeagain Senior, for that reason she held full rights and interests in the Mullewa Wadjari Claim area and broader Wadjari land.

8.4 The MW applicant's submissions

107 The MW applicant made the overarching submission that it is not the Court's task in an application for summary judgment to conduct a "mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial". Rather, it said the Court's task "requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial", citing Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46] (Reeves J), as approved in Buurabalayji Thalanyji at [3] and Harkin at [12]. 108 It argued that, properly understood, the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra together with the Barber Report are evidence which supports findings in favour of the MW applicant in relation to the issues for the Separate Questions hearing, which issues can only be properly decided following a trial. On its argument, the N&WY applicants wrongly urged the Court to evaluate contested evidence. 109 It said that the dispute in relation to WY Issue 1 is whether or not there is a descent line which has not been included in the WY native title claim group which should be recognised as being included in that group, namely, whether the descendants of Lottie Hannah are included in the Wajarri society because she is a descendant of either her mother Fanny Taylor (who was a Wajarri person), or her adoptive father, Jack Comeagain Snr (who was a Wajarri person). 110 It accepted that the fact that the WY native claim group does not acknowledge the descent lines of Lottie Hannah means that it carries the burden of proving those things. It acknowledged that there is evidence to support the propositions put by the N&WY applicants but said that the Court can only decide those disputed issues on the basis of evidence considered at a trial. 111 The MW applicant said that reaching a conclusion about Aboriginal identity is an elusive exercise, and in relation to living generations there are more factors that need to be considered than for past generations. It noted that the Courts have given consideration to Aboriginal identity based on a tripartite test, which requires demonstration of biological descent from an indigenous people, self-identification and local community acceptance, citing Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 at [274] (Deane J) and Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at [70] (Brennan J). It argued that while evidence of self-identification may be absent for past generations, self-identification and communal recognition by current generations may be probative evidence of descent, citing Shaw v Wolf [1998] FCA 389; 163 ALR 205 at 211-212 (Merkel J). It submitted that the element of communal recognition may have some probative value, but in some circumstances, a particular identity may not be publicly acknowledged, and identification may become "a matter, at best, of personal or family, rather than public record…[and] family oral 'history' of descent may in some instances be the only evidence available": Shaw at 213. 112 It relied on the remarks of Mortimer J (as her Honour then was) in Dempsey on Behalf of the Bularnu, Waluwarra and Wangkayajuru People v Queensland (No 2) [2014] FCA 528; 317 ALR 432 at [298], where her Honour said: … oral accounts may fill the 'silences' in the historical records (see Daniel v Western Australia [2003] FCA 666 at [149] per RD Nicholson J), but they may do more than that. It may be oral accounts which provide the only continuous narrative. Oral accounts may explain or give context to any historical records and, in some cases, may qualify or rebut them. 113 It said that the issue of identity becomes more intense, and the value of evidence of recognition by other members of an Aboriginal group become less pertinent where the identity issues are as to belonging to a particular group, and where the matter before the Court is a contest between two competing groups and the identity in question is that of a minority interest which is opposed by a majority, citing Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 (Mortimer J) for that proposition. The MW applicant noted that in the course of resolving this kind of dispute in Drill at [283], Mortimer J referred to the fact that in assessing evidence of ancestry, "direct knowledge" of "key ancestors" and the "lived experience" of a witness in and around the area in question are matters to which weight is to be given. 114 It contended that this is a case where it is necessary to give careful attention to the weight to be given to what may be limited evidence of family oral history, in order to arrive at a conclusion of identity and ancestry. 115 In relation to whether, at sovereignty, Jack Comeagain Snr was a member of the Wajarri People with rights and interests in Wajarri country under traditional laws and customs, the MW applicant noted that Ms Jackamarra stated her belief that Jack Comeagain Snr was a Wajarri man because she had been told by her partner, Anthony Dann, that a senior Wajarri man, Geoffrey Mongoo, told him that Jack Comeagain Snr's son, Jack Comeagain Jnr, was seen at the old ceremony grounds in the Murchison area. She said that only Wajarri ceremony men were allowed to be at the law and ceremony grounds in Wajarri country. 116 In relation to whether, at sovereignty, Fanny Taylor was a member of the Wajarri People with rights and interests in Wajarri country under traditional laws and customs, the MW applicant submitted that: (a) Ms Jackamarra said that her maternal great grandmother, Fanny Taylor, had an acknowledged traditional connection to Wajarri country because she was on Wajarri country in the company of other Wajarri elders with an anthropologist, Dr Ruth Fink (now deceased), doing fieldwork in the Murchison region in the 1960s, as a guide and translator; and (b) Dr Green supported that. She identified Fanny Taylor as a Wajarri person on the basis that she would not have been able to assist Dr Fink in her work in the Murchison River region in the 1950s if she was not accepted as a member of the Wajarri People. 117 The MW applicant denied the N&WY applicants' contention that Mr Barber made conclusory statements about Jack Comeagain Snr and Fanny Taylor being members of the Wajarri People yet provided no basis for that opinion. It pointed to the introduction to the Barber Report, where Mr Barber said: I travelled to the Claim area on 3 August 2023, and held discussions with Claimants about their rights and interests in Mullewa during the period 3 to 13 August 2023. These discussions were primarily held with Leedham Papertalk in Mullewa. Further brief conversations were held with Charmaine Green and Glenda Jackamarra in Geraldton on 13 August 2023 (day returned from Geraldton to Perth). Further Telephone conversations were held with Leedham Papertalk and Charmaine Green to check details and discussing concepts during the period 14th August 2023 to 17th September 2023. 118 The MW applicant noted that in Chapter IV - The Principles of Local and Social Organisation of the Claim Area, and in Chapter V - Ceremonies and Rituals, Mr Barber repeatedly referred to "the Claimants", their beliefs and the information they had provided to him as the source of the principles and practices and genealogical information which he set out in Appendix 3. It contended that it is readily apparent that the source of Mr Barber's opinions is the discussions that he had with the Claimants, which he said occurred in August and September 2023, and noted that (at [239] and [240]) Mr Barber expressly said that the genealogical data in Appendix 3 of his report was provided by the Claimants. 119 In relation to whether, at sovereignty, Lottie Hannah was a member of the Wajarri People with rights and interests in Wajarri country under traditional laws and customs, the MW applicant submitted that she acquired such rights through her adoption by Jack Comeagain Snr. It said that: (a) Ms Jackamarra identified her maternal great grandmother, Fanny Taylor, and her maternal grandmother, Lottie Hannah, as having a connection with the WY Overlap Area through Jack Comeagain Snr. She "grew up being told by members of [her] family that Lottie, and her older sister Millie, were Old Jack's daughters". She also said that she later found out that Lottie and Millie were Ned Papertalk's daughters and concluded that Lottie had been adopted by Old Jack; (b) Dr Green supported Ms Jackamarra's evidence of the knowledge in the Wajarri community about Jack Comeagain Snr's adoption of Lottie Hannah. She said that "Jack Comeagain Senior was married [sic] Fanny, he was considered has [sic] having grown up (or adopted) both Millie and Lottie"; and (c) Mr Papertalk said that "[t]he old people told me that Fanny's daughter, Lottie, was adopted by Jack Comeagain Senior at some point and she moved in from another group into the Mullewa Wadjari area. I was told that Lottie's father was Ned Papertalk". 120 On the MW applicant's argument, if at sovereignty Jack Comeagain Snr was a member of the Wajarri People with rights and interests in Wajarri country under traditional laws and customs, and if Lottie Hannah was adopted or brought up by Jack Comeagain Snr in accordance with traditional laws and customs in the Wajarri area, it should not be contentious that Lottie Hannah is entitled to be regarded as a member of the Wajarri People with rights and interests in Wajarri country.

8.5 Consideration regarding WY Issue 1

121 To establish an entitlement to summary judgment on WY Issue 1 the N&WY applicants analysed the MW applicant's lay evidence and submitted that its evidence did not rise to the level that the MW applicant had a reasonable prospect of success on that issue. It also said that the Barber Report was inadmissible. In opposing summary judgment on WY Issue 1 the MW applicant relied on the MW lay evidence and the Barber Report. For the reasons I now turn to explain, I am satisfied that the MW applicant does not have reasonable prospects of success on WY Issue 1. 8.5.1 Overarching matters 122 A number of overarching matters are material to that conclusion. 123 First, the WY native title claim group does not recognise any of Jack Comeagain Snr, Fanny Taylor and/or Lottie Hannah as apical ancestors of the WY People. Nor do any of the WY native title claim group agree that those persons are descendants from the identified WY apical ancestors listed in Schedule 7, item (a) of the WY Consent Minute. The MW applicant accepted that this means that it will have the onus to establish an affirmative answer to WY Issue 1 in the Separate Questions hearing. 124 Second, the MW applicant's evidence in relation to WY Issue 1 falls to be considered in the context that the WY People have already had a series of favourable native title determinations in areas adjacent to the WY Overlap Area. The WY People have been recognised as holding native title in adjacent areas in the following determinations: (a) I.S. v State of Western Australia; (b) Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545; (c) Egan on behalf of the Wajarri Yamatji People (Part C) v State of Western Australia [2018] FCA 1945; (d) Dann on behalf of the Wajarri Yamatji People (Part D) v State of Western Australia [2021] FCA 867; and (e) Hamlett on behalf of the Wajarri Yamatji People (Part E) v State of Western Australia (No 2) [2021] FCA 868. The first three determinations came into effect after the determination of a prescribed body corporate by orders made on 29 July 2021 in Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869 (WAD28/2019, WAD382/2017, WAD44/2018 and WAD157/2018; see Papertalk (No 1) at [26]-[27]). 125 Reproduced below is a map showing the native title determinations surrounding the MW claim area (being part of Annexure "CAM 19" to the second McKellar affidavit). The dotted red line shows the claim area in the initial MW claim, which was an approximately 100 km circle around Mullewa. Map 4 126 As a result of the WY determinations to the north of the MW claim area, and the Yamatji Nation determination to the south, many of the facts that must be proven before the Court could recognise the WY People as holding native title rights in the WY claim area (such as facts relating to laws and customs, "society" and "continuity") have already been found to exist in relation to adjacent areas. Evidence of the facts upon which those determinations were made are not in dispute, and therefore do not need to be the subject of evidence in these proceedings. The MW applicant accepted that those determinations provide a basis for recognition by the Court of facts relating to the existence of the WY society, the laws and customs of the WY society, and the continuity of the rights and interests of the members of that society. 127 The position of the MW people is quite different. The MW group have not been recognised as an Aboriginal society holding native title rights and interests at sovereignty, or at present, and they do not claim to be a separate society from the WY People. They seek to rely on the evidence and admissions relating to the WY People in the SAID, but then depart from the WY People's position by asserting a different description of WY native title holders for the WY Overlap Area. 128 Third, the MW applicant's evidence in relation to WY Issue 1 must be considered in the context that the other parties to the WY Applications have agreed to the WY Consent Minute. The WY Consent Minute is signed by all participating parties other than the MW applicant. All of them seek a determination that the WY People (being the WY native title claim group as defined in Schedule 7, item (a) of the WY Consent Minute) hold native title in the lands and waters of the WY Overlap Area. That is, all participating parties other than the MW applicant accept that the WY People (as presently defined) are the right people for the WY Overlap Area. 129 Fourth, for the reasons I will explain further below, the opinions expressed in the Barber Report in relation to WY Issue 1 are inadmissible. 130 Fifth, I accept the MW applicant's submission that it is not the Court's task in an application for summary judgment to conduct a "mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial", and that the Court's task "requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial". However, that submission goes nowhere because: (a) in this case the evidence is not incomplete. The parties filed all of the evidence upon which they proposed to rely for the forthcoming Separate Questions hearing, which evidence is in final form. All of that evidence was before the Court in the application; (b) the MW applicant mischaracterises the application as involving a "mini trial". The N&WY applicants did not ask the Court to weigh the N&WY applicants' evidence on WY Issue 1 against the MW applicant's evidence, and there was no "mini trial". Instead, the application involved an examination of the evidence to be relied on by the MW applicant in the forthcoming Separate Questions hearing, and to decide whether the N&WY applicants established that the MW applicant has no reasonable prospect of proving its case on WY Issue 1; and (c) it failed to take into account that if the moving party for summary judgment establishes a prima facie case, the onus shifts to the opposing party to point to some factual or evidentiary issues that make a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] (Gordon J), approved in Buurabalayji Thalanyji at [3] (see fifth dot point) (McKerracher J) and in Harkin at [12] (Griffiths J). Here, the N&WY applicants made out a prima facie case for summary judgment in regard to WY Issue 1 and it was therefore necessary for the MW applicant to establish "specific factual or evidentiary disputes that make a trial necessary". The MW applicant singularly failed to establish that there are factual or evidential questions in relation to WY Issue 1 which must be determined at a trial. 131 At points the MW applicant seemed to proceed as if the N&WY applicants were required to establish that the MW applicant's case on Nanda Issue 1 was "hopeless" or "bound to fail". That is not the test: see Spencer at [17]-[26]. 132 Sixth, the MW applicant approached the summary judgment application as if all that it had to do to be successful on WY Issue 1 is to show that the evidence raises factual or legal questions regarding whether one or more of Jack Comeagain Snr, Fanny Taylor or Lottie Hannah were members of the Wajarri People who, at effective sovereignty, held rights and interests in the WY claim area under traditional laws and customs. That somewhat misses the point. 133 The entire point of success for the MW applicant on WY Issue 1 is to allow the contemporary descendants of one or more of the three purported apical ancestors to become members of the WY native title claim group, and as a result share in any favourable determination of native title. The difficulty for the MW applicant is that, assuming that it is successful in having one or more of Jack Comeagain Snr, Fanny Taylor or Lottie Hannah added to the list of apical ancestors (or establishing that one or more of them is descended from an identified apical ancestor), their contemporary descendants do not become members of the WY native title claim group unless they can also satisfy the other parts of the claim group definition in Schedule 7 of the WY Consent Minute. 134 To pick up the language of items (b) and (c) of Schedule 7 of the WY Consent Minute, to be members of the WY native title claim group the contemporary descendants of Jack Comeagain Snr, Fanny Taylor or Lottie Hannah must also: (a) "identify themselves as Wajarri Yamatji in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji"; and (b) be "accepted as Wajarri Yamatji in accordance with the traditional laws acknowledged and traditional customs observed by the Wajarri Yamatji". The MW applicant adduced no evidence that they self-identify as WY People in accordance with the traditional laws acknowledged and the traditional customs observed by the WY People, nor that they are accepted as WY People in accordance with the traditional laws acknowledged and traditional customs observed by the WY People. 135 In response to this deficiency, the MW applicant submitted that "the value of evidence of group recognition become less pertinent where…the identity issue was as to belonging to a particular group and connection to a particular area and where the matter before the Court is a contest between two competing groups and the identity in question is that of a minority interest which is opposed by a majority". I accept that evidence that a majority of an Aboriginal group does not accept that a minority of that group are members of that group must be considered in the context of all the surrounding circumstances, including any disputation between the competing groups. Whether or not the minority group have a legitimate claim to be members of the group must be assessed on the evidence. Here (unless the members of the MW group can show they are member of the WY claim group through another apical ancestor) the evidence is insufficient to show that the contemporary descendants of Jack Comeagain Snr, Fanny Taylor or Lottie Hannah have a legitimate claim to be members of the WY People and should be accepted as such. 136 Turning now to matters specific to Jack Comeagain Snr, Fanny Taylor and Lottie Hannah. 8.5.2 Jack Comeagain Snr 137 The N&WY applicants established that the MW applicant has no reasonable prospect of successfully prosecuting its claim that Jack Comeagain Snr should be added to the list of apical ancestors in Schedule 7, item (a) of the WY Consent Minute, or that he is descended from one of the WY apical ancestors identified in that list. 138 First, there is no lay or expert evidence to show who Jack Comeagain Snr's parents were or to which Aboriginal society or people(s) they belonged. There is no evidence that either of his parents were Wajarri people. 139 Second, the MW applicant's lay witness statements are not probative to show that Jack Comeagain Snr was a member of the Wajarri People: (a) Mr Papertalk said nothing to identify Jack Comeagain Snr as a Wajarri man. His evidence in relation to Jack Comeagain Snr was general and of no assistance in establishing which Aboriginal group Jack Comeagain Snr was associated with; (b) Dr Green did not identify Jack Comeagain Snr as a Wajarri man, and she said that her father referred to his son, Jack Comeagain Jnr, as a Badimia man. She also said that the Badimia People are "very close" culturally and geographically to the Wajarri People but that does not take matters far; the Badimia People are a different society to the Wajarri People and their country is in a different area; and (c) Ms Jackamarra asserted that Jack Comeagain Snr was a Wajarri law man, but that assertion lacked a foundation in the evidence. It appears to be based on an inference she draws from the fact that a Wajarri elder, Geoffrey Mongoo, told her partner, Mr Dann, that he saw Jack Comeagain Snr's son, Jack Comeagain Jnr, at "the old ceremony grounds up in the Murchison". 140 For the purposes of the summary judgment application, Ms Jackamarra's evidence as to what Mr Mongoo told her partner, Mr Dann about Jack Comeagain Jnr's attendance at the old ceremony grounds must be accepted. But what it is appropriate to infer from that fact is a matter for the Court, not Ms Jackamarra. As Gordon J explained in Jefferson Ford at [132]: I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [30]; Boston Commercial Services 236 ALR 720 at [45]. I emphasise 'reasonable' because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between "hopeless" cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference. 141 In my view the fact that Jack Comeagain Snr's son attended the old Wajarri ceremony grounds for some unspecified purpose and in an unidentified time period is not a reasonable basis to infer that Jack Comeagain Snr was a member of the Wajarri People, let alone a Wajarri law man. That is particularly so when Dr Green identified his son as a Badimia man, rather than Wajarri. If Jack Comeagain Snr was a Wajarri man I expect he would have been so identified by Mr Papertalk, who is the senior Wajarri law man at present. However, Mr Papertalk said nothing to identify Jack Comeagain Snr as a Wajarri man, let alone a Wajarri law man. 142 Third, there is no probative evidence, either lay or expert, to support the allegation in the MW SSFIC that Jack Comeagain Snr was "from the Murchison region around the Boolardy area" or to support Mr Barber's opinion in Appendix 3 that he worked in the Boolardy area. The only MW lay witness evidence that places Jack Comeagain Snr in the Murchison region is Ms Jackamarra's statement. Ms Jackamarra said: (a) she was told that Jack Comeagain Snr met his wife Fanny in the Murchison area. For the purposes of the application that must be accepted but I do not consider it reasonable to infer from that fact that Jack Comeagain Snr was "from the Murchison region around the Boolardy area". It is uncontroversial that, at or around effective sovereignty, Aboriginal people travelled outside their own country. Jack Comeagain Snr may or may not have been on his own country when he met his future wife; and (b) that Geoffrey Mongoo told her partner Mr Dann that he saw Jack Comeagain Snr's son at the old cemetery grounds "up in the Murchison." I accept that too, but I do not consider it reasonable to infer from the fact that Jack Comeagain Snr's son attended the old Wajarri ceremony grounds for some unspecified purpose and in an unidentified time period that Jack Comeagain Snr was from the Murchison region or from around the Boolardy area. There is no lay evidence that Jack Comeagain Snr worked in the Boolardy area, and no foundation in the evidence for Mr Barber's opinion. 143 Fourth, there is nothing in the MW lay evidence to support the allegations in the MW F&BP as to the "oral history of Wajarri Yamatji claim group members of Jack Comeagain Snr as a 'full blood' Wajarri man 'from the Murchison' travelling from Mullewa to Murchison region stations to attend 'culture meetings' including at Wooleen Station as a venue for ceremonies; and participation in ceremonies performed at Mullewa Reserve and nearby law grounds". 144 Nothing in the MW applicant's lay witness statements supports those allegations. Again, as Senior Counsel for the MW applicant accepted, for the purposes of the application it is appropriate for the Court to infer that the lay witness statements of Dr Green, Mr Papertalk and Ms Jackamarra represent the best information that they could give. I infer that if the lay witnesses could have said that Jack Comeagain Snr was a "full blood" Wajarri man "from the Murchison" travelling from Mullewa to Murchison region stations to attend "culture meetings"; and participating in ceremonies performed at Mullewa Reserve and nearby law grounds they would have done so. 145 Fifth, there is little or nothing in the MW lay evidence to show that Jack Comeagain Snr had a connection with the land and waters of the WY Overlap Area in accordance with traditional laws acknowledged and traditional customs observed by the Wajarri People. I would usually expect that to be shown through evidence of matters such as resource use, established residence, knowledge of country, and evidence of spiritual connection through knowledge of sites and places of significance, including story places. The MW lay witness statements do not provide probative evidence of such matters in respect to Jack Comeagain Snr. 146 Sixth, in the Barber Report Mr Barber provided conclusory opinions that Jack Comeagain Snr: (a) was a "Thagarda Wadjari man" (at [158]); (b) was from Thawarda Wajarri country and resided in the claim area in c 1890s (in Appendix 3); (c) "had rights and interests under traditional law and Custom" in the WY Overlap Area (in answer to Question (a)); (d) "appears to have been a Senior Wajarri person, who was engaged in Wadjari law and Custom as of a right" (in answer to Question (b)); and (e) "is considered to have rights and interests within broader Wadjari land and within the Claim" (in answer to Question (e)). 147 The Barber Report does not though identify which of Dr Green, Mr Papertalk and/or Ms Jackamarra provided the information said to support those opinions, nor does it disclose the nature of the information they provided which is said to justify those opinions. Again, it is appropriate to infer that the lay witness statements of Dr Green, Mr Papertalk and Ms Jackamarra represent the best evidence that they could give and, particularly in circumstances where Mr Barber does not disclose which of them provided the information or what they told him, it would be wrong to conclude that they provided Mr Barber with better information than that which they provided in their witness statements. Further, when one examines the MW applicant's lay witness statements they do not provide a factual foundation for Mr Barber's opinions. 148 Fundamentally, the Barber Report is not presented in a form which makes it possible to determine whether Mr Barber's opinions in relation to Jack Comeagain Snr are wholly or substantially based on his specialised knowledge based on training, study or experience as an anthropologist. It does not reveal the observed facts or assumptions upon which his opinions are based, it does not expose how he applied his specialised knowledge as an anthropologist to the observed facts or assumptions to support the opinions he expressed, and it does not expose the reasoning process leading to the opinions he expressed. 149 Mr Barber's opinions are also redolent with uncertainty. His answer to Question (a) was that the "genealogical information suggests that Jack Comeagain Snr had rights and interests under traditional law and Custom" (emphasis added). His answer to Question (b) was that "Jack Comeagain Senior appears to have been a Senior Wajarri person" (emphasis added). 150 Some of his other opinions appear to be mere speculation. For example, his answer to Question (c) was that Jack Comeagain Snr's birthplace is unknown, but he then stated that Jack Comeagain Snr was born within the WY Overlap Area or the broader Wajarri estate, without revealing the factual foundation for that opinion. His answer to Question (d) is that Jack Comeagain Snr's parents are unknown, but he then opined that Jack Comeagain Snr's father was a Wajarri man from the WY Overlap Area or the broader Wajarri estate, without revealing the factual foundation for that opinion. 151 Therefore, if (contrary to my view) Mr Barber's opinions regarding Jack Comeagain Snr are admissible, that would make no difference to my conclusion in the application. If his opinions are admissible I would give them little weight because on the salient issues his opinions are uncertain, speculative and not grounded in the evidence. 8.5.3 Fanny Taylor 152 The N&WY applicants established that the MW applicant has no reasonable prospect of successfully prosecuting its claim that Fanny Taylor should be added to the list of apical ancestors in Schedule 7, item (a) of the WY Consent Minute, or that she is descended from one of the WY apical ancestors identified in that list. 153 First, there is significant lacuna in the evidence as to Fanny Taylor's ancestry. It is uncontentious that status as a Wajarri person that holds rights and interests in relation to land under traditional laws and customs is primarily based on descent: see T32.29. Here there is no probative evidence which is capable of showing that either of Fanny Taylor's parents were members of the Wajarri People. 154 According to Mr Barber's opinions in the genealogical information in Appendix 3, Biddy Wittamurra, Fanny Taylor's mother, was a Wajarri person. However, in submissions the MW applicant accepted that there is no evidence to show that Biddy Wittamurra was a member of the Wajarri People. Mr Barber accepted that there is no evidence as to the Aboriginal group with which Fanny Taylor's father was associated. 155 Second, Mr Papertalk did not state that Fanny Taylor was a Wajarri person. Rather, he said he was told by the "old people" that Fanny Taylor and her daughter Lottie "moved in from another group into the Mullewa Wadjari area". That statement is directly contrary to the MW applicant's case on WY Issue 1. 156 Mr Barber appeared to accept that in the genealogical information he set out in Appendix 3. There Mr Barber said that Fanny Taylor's country was "Amagu/Wilynu - coastal LP". I infer that the reference to "Amagu/Wilynu - coastal" is a reference to the Amangu People, and that the reference to "LP" is shorthand for "Leedham Papertalk", the source of the information. The entry states that Mr Papertalk told Mr Barber that Fanny Taylor came from the Amangu People. That is again directly contrary to the MW applicant's case on WY Issue 1. 157 Third, Ms Jackamarra stated (at [25]-[26]) that Fanny Taylor belonged to MW country and that she is connected to MW country through her maternal great-grandmother Fanny Taylor, her maternal grandmother Lottie Hannah (Fanny's daughter), and her mother Margaret Jackamarra (nee Hannah). However, her evidence that Fanny Taylor was a member of the Wajarri People is contradictory and inconsistent. On the one hand she described Fanny Taylor as being "acknowledged and accorded respect" by "other senior Wajarri people" and that she belonged to MW country. On the other hand, she said that "Fanny and Lottie had a connection to the overlap area through Old Jack [Comeagain Snr], Fanny's husband" (emphasis added). I understood the latter statement as an assertion that Fanny was not Wajarri by descent, but had developed a connection to Wajarri country through her marriage to Jack Comeagain Snr. That understanding is consistent with Mr Papertalk's evidence that he was told by the "old people" that, together with her daughter Lottie, Fanny Taylor "moved in from another group into the Mullewa Wadjari area". 158 There is no evidence (and the MW applicant did not contend) that, at sovereignty, Fanny Taylor could have become a member of the Wajarri People and have rights and interests in Wajarri country under traditional laws and customs through marriage to Jack Comeagain Snr on the basis that he was a Wajarri man: see T32.28. 159 Fourth, Dr Green (at [50]) and Ms Jackamarra (at [43]) draw an inference that Fanny Taylor was a member of the Wajarri People from the fact that she assisted the anthropologist, Dr Ruth Fink, as a guide and interpreter in field work on Wajarri country in the 1950's accompanied by "other Wajarri elders". (I note that Ms Jackamarra said the field trips occurred in the 1960s but that date range appears to be a mistake.) Dr Green inferred that Fanny would not have been able to do that work if she was not accepted as a member of the Wajarri group. Ms Jackamarra inferred that Fanny doing that work shows that "they" (meaning, the Wajarri elders) acknowledged her connection to Wajarri country. She also said that under Wajarri culture Fanny would not have been permitted to be on Wajarri country with a visitor unless she was recognised as having a connection to that country. 160 For the purposes of the application it must be accepted that Fanny Taylor worked with Dr Fink as a guide and translator on Wajarri country in the 1950s, accompanied by Wajarri elders. But it is for the Court, not Dr Green or Ms Jackamarra, to decide what inferences are reasonable to be drawn, as distinct from merely plausible: Jefferson Ford at [132]. 161 At least in part, determining what inferences it is appropriate to draw from the fact that Fanny Taylor assisted Dr Fink as a guide and interpreter on Wajarri country depends on the nature of Dr Fink's work. For example, if Dr Fink had been engaged in mapping Wajarri sacred sites it might be more likely that Fanny Taylor would not have been able to assist in that work if she was not accepted as a Wajarri person than, say, if Dr Fink had been engaged in research into contemporary Aboriginal communities in the area. 162 Here, while there is limited available evidence as to Dr Fink's work, it is sufficiently clear that the work did not involve sacred sites, secret womens' business or the like. Dr Kenny's report shows that Dr Fink's 1960 PhD dissertation is entitled "The Changing Status and Cultural Identity of Western Australian Aborigines: A Field Study of Aborigines in the Murchison District WA 1955-1957" (Columbia University, 1960). I infer that Dr Fink was engaged in research for that dissertation on the relevant field trips. 163 Dr Fink's work was discussed by Barker J in CG (Deceased) on behalf of the Badimia People v Western Australia [2015] FCA 204. His Honour noted (at [20]) that in the post-Second World War era, Dr Fink obtained data in the vicinity of the Badimia claim area for her PhD dissertation about "tribal distribution" in the Murchison region. His Honour briefly described Dr Fink's work as follows (at [121]): Fink did her PhD research in the 1950s. She was based in Wajarri country in Mullewa. Her work was not focussed on the Badimia but they figure, at least incidentally, in her work. She was concerned to study the effects of assimilation policies on Aboriginal people. She met 'town dwellers', 'fringe dwellers' and other Aboriginal people still on pastoral stations. 164 In relation to Dr Fink's work the State of Western Australia submitted as follows, as Barker J recorded (at [441] (12)-(16)): (12) Fink carried out fieldwork in the Murchison region during the period 1955-1957 as the basis for her PhD dissertation. Most of her research was in Mullewa, although she also made trips to stations and towns in the Murchison region, including Mount Magnet…. (13) Fink's research focus was on social, cultural and economic change. Dr Brunton and Mr Robinson [being expert witnesses in the case] agreed that she was interested in the extent to which traditional practices and traditional life had been maintained. Fink herself stated that she 'was interested in observing changes in indigenous culture, and in trying to assess its present day significance' and, accordingly, chose the Murchison to undertake her research as she wanted to study an area which had experienced intensive European settlement over a long period and where consequently there would be 'considerable detribalization and acculturation' but not to the extent that 'indigenous culture had completely died out'. (14) Fink reported in some detail about the extent to which traditional culture had been lost as a result of European settlement in the region. She was particularly focused upon the factors which were causing that process to continue during her period of research in the 1950s. Her findings were summarised by Dr Brunton in his first report. (15) Fink distinguished three broad groups of Aboriginal people whom she encountered during her research. The first were the 'town dwellers' who consisted of Aboriginal people with citizenship rights who lived in the white residential sections of Mullewa. With only a few exceptions, these people would not cooperate with Fink's research because 'they did not want to be regarded as natives', from whom they kept completely separate. The second group of Aboriginal people were the 'camp dwellers' who lived on the native reserves around towns in the Murchison. Although some of them had a certain degree of traditional knowledge and interest, Fink considered that 'their way of life [was] no longer based upon a clearly Aboriginal set of traditions'. Rather, their identity was 'based upon ties of loosely extended kinship to other Jamajdjis'. (16) The third group were Aboriginal people who were working on pastoral stations in the Murchison. Although Fink considered that the Aboriginal people living on pastoral stations 'seemed to show more interest in the past' than the town or camp dwellers, 'even they had a very incomplete grasp of their former culture'. Fink found that, as a result of developments since the end of the Second World War, traditional orientation amongst Aboriginal people on the pastoral stations was waning and that younger station workers were being influenced by the attitudes of 'contempt for anything connected with the Aboriginal past' held by many of their town relatives. 165 The MW applicant submitted that the Court should conclude that in drawing an inference from her participation in field work with Dr Fink that Fanny Taylor must have been a member of the Wajarri People, Dr Green and Ms Jackamarra were relying on their knowledge and respect for traditional law and custom (T31.8; T32.10). I do not accept that. The inference they drew required that they have an understanding of Wajarri traditional law and custom, as it applied approximately 70 years ago, regarding the circumstances in which a non-Wajarri Aboriginal person could be on Wajarri country. The inference also required an assumption that Dr Fink had not entered into an agreement with Wajarri elders that she could be accompanied by Fanny Taylor although she was not herself a Wajarri person. In my view the inference they drew is just speculation. 166 Amongst other things, there is no evidence to show: (a) that it was a requirement of Wajarri traditional law and custom, with which Wajarri elders sought compliance in the 1950s, that an Aboriginal person assisting anthropological fieldwork on Wajarri country could only do so if the person was a Wajarri person; (b) that Dr Green and/or Ms Jackamarra have any knowledge of the requirements of Wajarri traditional laws and customs, as it applied 70 years ago, with which Wajarri elders sought compliance at that time, regarding the circumstances in which a non-Wajarri Aboriginal person could be on Wajarri country; (c) that the Wajarri elders present on those field trips took the view that Fanny Taylor could only assist in that field work if she was a Wajarri person; (d) what arrangements or agreements Dr Fink entered into in relation to Fanny Taylor's assistance on those field trips, including whether she obtained permission from Wajarri elders for Fanny Taylor to attend Wajarri country; or (e) whether any requirement under traditional laws and customs regarding the attendance of a non-indigenous anthropologist assisted by a non-Wajarri Aboriginal person on those field trips could be met by the attendance of Wajarri elders on the field trips. 167 Another, at least equally available inference, is that Fanny Taylor was engaged by Dr Fink because she was intelligent, knew the Murchison region and the local people in that area well, whether they were Wajarri or members of other groups, and could therefore assist Dr Fink with her work. It is far from unusual for anthropologists to obtain such assistance. I would not infer that Fanny Taylor was a Wajarri woman with rights and interests in Wajarri country under Wajarri traditional laws and customs simply from the fact that she assisted Dr Fink as a guide and interpreter on Wajarri country in the 1950's, accompanied by several Wajarri elders. 168 Ms Jackamarra also said that she was "told by the old people that Fanny was acknowledged and accorded respect by other senior Wajarri people, such as Eulie Dingo, Laurie Donnelly and Jack Darby, who she knew to be senior Wajarri elders." Ms Jackamarra did not, though, state that she was told the Wajarri men acknowledged and respected Fanny Taylor as a Wajarri person. Ms Taylor was an intelligent woman who was selected by an important visitor to the area to assist in undertaking research work. The respect she was apparently accorded by the elders may just reflect that. Considered in the context of the paucity of the other evidence in relation to Fanny Taylor, that is not enough to show that there is some specific factual or legal issue in relation to Fanny Taylor that can only be decided following a trial. 169 Fifth, again, there is no probative evidence that Fanny Taylor had a connection with the land and waters of the WY Overlap Area in accordance with traditional laws acknowledged and traditional customs observed by the Wajarri People. I would usually expect that to be shown through evidence of matters such as resource use, established residence, knowledge of country, and evidence of spiritual connection through knowledge of sites and places of significance, including story places. No probative evidence of such matters was adduced in respect of Fanny Taylor. 170 Sixth, the MW lay evidence does not support the allegations in the MW SSFIC and the MW F&BP: (a) the MW SSFIC alleges that Fanny Taylor "had a connection in accordance with traditional laws acknowledged and traditional customs observed by WY People and Mullewa Wadjari People to the WY area, including the area in the vicinity of the Murchison River, Woolgarong Station and Billabalong Station"; and (b) the MW F&BP alleges that Fanny Taylor "according to family oral tradition recounted by Lottie Hannah, was present in the MW claim area, travelling there with her son Jack Comeagain (Jnr); and her son and all her daughters ended up out in the Murchison, except her second youngest daughter May Comeagain". 171 None of the lay witnesses said that Fanny Taylor had a connection to the MW claim area through those particular stations. Indeed, Mr Papertalk said that the old people told him that she came to Wajarri country from another Aboriginal group. 172 Seventh, Mr Barber accepted that he had no knowledge as to the Aboriginal group with which Fanny Taylor's father was associated. Notwithstanding that, he provided conclusory opinions that: (a) Fanny Taylor's mother, Biddy Wittamura, was "regarded as Thagarda Wadjari", and that Fanny Taylor was "Thagarda Wadjari" (at [157]-[158]); (b) Fanny Taylor's country was "Amagu/Wilynu" (in the genealogical information in Appendix 3); (c) Fanny Taylor "is the daughter of Biddy Wittamurra a Thargarda Wadjari person who possessed rights and interest under traditional law and custom in the entirety of the Mullewa Wadjari claim area and broader Wadjari land" (in answer to specific Question (i)); and (d) "Fanny Comeagain was a Wadjari person and is regarded as having traditional rights and interest in" the WY Overlap Area (in answer to specific Question (j)). 173 Mr Barber's opinion that Fanny Taylor was "Thagarda Wadjari" is plainly inadmissible. The Barber Report does not identify which of the Claimants provided the information said to support that opinion, nor does it identify the nature of the information they are said to have provided which is said to justify that opinion. Again, it is appropriate to infer that the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra represent the best evidence that they could give and, particularly in circumstances where Mr Barber does not disclose which person or persons provided the information or what information they are said to have provided, it would be wrong to approach the Barber Report on the basis that they were able to provide Mr Barber with better information than the information they provided in their witness statements. 174 Further, when one examines the MW lay witness statements, they do not provide a factual foundation for Mr Barber's opinion that Fanny Taylor was a Wajarri person who possessed rights and interest under traditional law and custom in the MW claim area. 175 Again, the Barber Report is not presented in a form which makes it possible to determine whether Mr Barber's opinions in relation to Fanny Taylor are wholly or substantially based on his specialised knowledge based on training, study or experience as an anthropologist. It does not reveal the observed facts or assumptions upon which his opinions are based, it does not expose how he applied his specialised knowledge as an anthropologist to the observed facts or assumptions so as to support the opinions he expressed, and it does not expose the reasoning process leading to the opinions he expressed. 176 Further, Mr Barber provided the opinion that Fanny Taylor was "Thagarda Wadjari" in circumstances where her father's Aboriginal group is unknown. Therefore his opinion can only be based on descent from her mother, Biddy Wittamurra, who Mr Barber said was "regarded as Thagarda Wadjari". However, as Senior Counsel for the MW applicant accepted, there is no evidence that Biddy Wittamura was a Wajarri person and the opinion in relation to Biddy Wittamurra (and therefore Fanny Taylor) has no factual foundation in the evidence. Therefore, if (contrary to my view) the Barber Report is admissible I would give it little weight because it is not grounded in the evidence. 8.5.4 Lottie Hannah 177 The N&WY applicants established that the MW applicant has no reasonable prospect of successfully prosecuting its claim that Lottie Hannah should be added to the list of apical ancestors in Schedule 7, item (a) of the WY Consent Minute, or that she is descended from one of the WY apical ancestors identified in that list. 178 First, Lottie Hannah can only have become a Wajarri person through traditional adoption by Jack Comeagain Snr if he was himself a member of the Wajarri People. As I have explained, the evidence is insufficient to show that Jack Comeagain Snr was a Wajarri person. 179 Second, although Ms Jackamarra said that she is a MW person through both Fanny Taylor and Jack Comeagain Snr, she did not state that her grandmother, Lottie Hannah, was Wajarri by reason of descent from Fanny Taylor. The thrust of the MW applicant's case was that Ms Jackamurra is Wajarri by descent from Lottie Hannah, who became a member of the Wajarri People through adoption by Jack Comeagain Snr, a Wajarri man. 180 To the extent that Ms Jackamarra's claim to be Wajarri is based on descent from Fanny Taylor the evidence is insufficient to show that Fanny Taylor was a member of the Wajarri People who, at effective sovereignty, held rights and interests in the MW claim area under traditional laws and customs. 181 Third, again there is no probative evidence that Lottie Hannah had a connection with the land and waters of the WY Overlap Area in accordance with the traditional laws and customs observed by the Wajarri People. As I have said, I would usually expect that to be shown through evidence of matters such as resource use, established residence, knowledge of country, and evidence of spiritual connection through knowledge of sites and places of significance, including story places. No probative evidence of such matters was adduced in respect of Lottie Hannah. 182 Fourth, Mr Barber expressed the following opinions in respect to Lottie Hannah: (a) prior to marrying Jack Comeagain Snr, Fanny Taylor had married an unnamed man and had two daughters with him, namely Milly Taylor Flanagan and Lottie Hannah; (b) Lottie Hannah was "a Wadjari person" because she "was adopted under the laws and customs of the Wadjari by Jack Comeagain a Thargarda Wadjari person" (in answer to Question (l)); and (c) Lottie Hannah "is regarded as a Wadjari person as she was adopted by Jack Comeagain Senior, for that reason she held full rights and interests in the Mullewa Wadjari Claim area and broader Wadjari land" (in answer to Question (m)). 183 For the purposes of the application it must be accepted Lottie Hannah was adopted by Jack Comeagain Snr according to traditional law and custom. Mr Barber does not, however, disclose which of the Claimants provided the information or what information they are said to have provided to support his opinion that Lottie Hannah thereby "held full rights and interests in the Mullewa Wadjari Claim area and broader Wadjari land". That opinion is inadmissible for the same or similar reasons to those previously expressed. 184 Most fundamentally, if as I have concluded Jack Comeagain Snr was not a Wajarri man, then his adoption of Lottie Hannah cannot have meant she became a member of the Wajarri People. 8.5.5 Conclusion on WY Issue 1 185 The Court should be cautious before deciding a party's rights by way of summary judgment, and the power to do so must not be exercised lightly (Spencer at [60]). Particular caution is appropriate in a native title determination application. But here the evidence was in final form, and I have given careful attention to it. The N&WY applicants clearly established a prima facie case in favour of summary judgment, and the onus then shifted to the MW applicant to show that the evidence raised specific factual or evidentiary issues that made a trial necessary. It failed to do so and I am well-satisfied that the MW applicant has no reasonable prospect of successfully prosecuting its case on WY Issue 1. 186 The N&WY applicants' application for summary judgment on WY Issue 1 has been allowed, and judgment should be given against the MW applicant in relation to the issue.

Nanda Issue 1 - the sovereignty question 187 The N&WY applicants had the onus to establish that the MW applicant has no reasonable prospect of successfully prosecuting its case in relation to Nanda Issue 1, which is as follows: Did the WY People at sovereignty hold rights and interests in the land and waters of the Nanda Area in accordance with the traditional laws and customs of the Wajarri Society?

9.1 The pleadings

188 The MW SSFIC alleges as follows in relation to the extent of Wajarri country, and the WY People's connection with the Nanda Overlap Area, at effective sovereignty:

I was told by the old people that Fanny was acknowledged and accorded respect by other senior Wajarri people, such as Eulie Dingo, Laurie Donnelly and Jack Darby, who I know to be senior Wajarri elders.

I believe it is significant that Fanny was in the company of other Wajarri elders on country with anthropologist, Ruth Fink, because it shows that they acknowledged her connection to that country. In Wajarri culture, Fanny would not have been permitted to be on country with a visitor unless she was recognised as having such a connection.

I travelled to Sydney about 5 years ago with Charmaine Green and met with Ruth Fink (who I learnt passed away recently). Fanny was Ruth's guide and translator in the Murchison region while conducting fieldwork in the 1960's.

Ruth Fink gave me an old photo she took of Fanny Comeagain, Eulie Dingo and Jack Darby.

The Hannah family have a connection to the overlap area, not through the descendants of Angelina (mother of Alice Darby), but through Old Jack and Fanny. I was told stories by the old people that this was Fanny's country and she spent time out there. 90 Mr Barber expressed the following opinions in relation to Fanny Taylor. 91 In the passage from the Barber Report at [156]-[160] (set out above at [83]), Mr Barber opined (at [157]) that Fanny Taylor's mother, Biddy Wittamura, was "regarded as Thagarda Wadjari" and that Mr Barber has "no knowledge" as to any Aboriginal group to which Fanny Taylor's father was associated. He said (at [158]) that their daughter, Fanny Taylor, was Thawarda Wajarri and that Fanny Taylor married "a Thagarda Wadjari man, Jack Comeagain snr." 92 However, the MW applicant no longer contends that Biddy Wittamura was a member of the Thawarda Wajarri People, and has accepted that there is no evidence regarding which Aboriginal group she belonged to. 93 The Barber Report does not contain any other references in relation to Fanny Taylor other than in the genealogical information in Appendix 3 or in answer to the specific Questions asked regarding her. 94 The entry for Fanny Taylor in Appendix 3 states: nm1: Fanny "Judy" Taylor nm2: Mingenoogoo nm3: Papertalk, Comeagain (Kummagin/Commigan/Commigain) dob: circa 1883 cty: Amagu/Wilynu - coastal LP cty2: Canamah notes: married circa 1915; LP notes2: photo by Ruth Fink, mid 50s. Fink 'could' introduce to people 95 Mr Barber opined as follows on the Questions regarding Fanny Taylor: (i) Question (i): Was Fanny Comagain a Wajarri person? Answer: Fanny "Judy" Comeagain nee Taylor is the daughter of Biddy Wittamurra a Thargarda Wadjari person who possessed rights and interest under traditional law and custom in the entirety of the Mullewa Wadjari claim area and broader Wadjari land. (ii) Question (j): Did Fanny Comeagain possess rights and interests under traditional law and custom in any Mullewa Wadjari Remaining Claim Area [meaning the Nanda Overlap Area] or Wajarri Yamatji area [meaning the WY Overlap Area], and if so, were those rights applicable to or exercisable in relation to all or any part or parts of the Mullewa Wadjari Remaining Claim area or Wajarri Yamatji Area? Answer: Fanny Comeagain was a Wadjari person and is regarded as having traditional rights and interests in all of the Mullewa Wadjari Claim area, the Mullewa Wadjari Remaining Claim area and the Wajarri Yamatji area.

8.3 The pleadings and evidence regarding Lottie Hannah

96 In relation to Lottie Hannah the MW SSFIC alleges as follows:

At Wandana there is the bimara story - or the freshwater snake story.

There is also a cave painting at Tallering. In Wajarri language it is pronounced Thallerang.

There are old law grounds at Mount Aubrey. I was told that Angelina had another son called Matt Aubrey and he was named after Mount Aubrey as part of his ceremony of becoming a man. …

I met Ruth Fink, the Anthropologist in Sydney, who recalled the work she did with Fanny Taylor in Mullewa and the Murchison in the mid 1950's. I introduced Glenda Jackamarra to Ruth Finke [sic] who showed Glenda Jackamarra documents and photographs of Fanny Taylor. Ruth Finke [sic] spoke of how Fanny Taylor assisted her with research field work in Mullewa, Yalgoo and in the Murchison. Fanny Taylor was with Ruth Fink, the Anthropologist, when Ruth did her work in the Murchison River area and that Fanny Taylor would not have been able to do that work with her if she was not accepted as a member of the Wajarri group. 88 Mr Papertalk said:

I remember being told by my mother that Lottie Hannah was related to the Papertalks.

Fanny had two (2) daughters with Old Papertalk - Millie Flanagan and Lottie Hannah.

Fanny then later married Jack Comeagain Senior and they had more children, including Jack Comeagain Junior. Jack Comeagain Junior was married my mother's sister, Jean Papertalk.

As Jack Comeagain Senior was married Fanny, he was considered has having grown up (or adopted) both Millie and Lottie. …

I remember my father used to refer to Jack Comeagain Junior as a Badimia man, but Wajarri and Badimia are very close geographically and culturally. 81 Mr Papertalk said:

1 would be breaking our laws and customs if I did not defend their connection to country in court. The old people made that claim for a reason.

The old people put down the boundaries of the Mullewa Wadjari claim area, I would be breaking our law if I changed those boundaries. If I break the law, there could be consequences for me, and I could get very sick. 196 Ms Jackamarra (who does not claim to be Wajarri by descent from Angelina or Alice Darby) said nothing specifically in relation to the Nanda Overlap Area, but in relation to Wajarri country more generally she said:

I attend the men's ceremonies on Wajarri country and in the Pilbara.

I know of the women's ceremonies but I cannot talk about them.

I was told by the old people that when my grandfather, Mindalu, knew that his time was coming, before he passed away he called a big meeting with all the senior law people, the family and neighboring tribes and he passed down that country to my father. 262 Dr Green said: (a) her late uncle, Eric Papertalk (EP), was an initiated Wajarri man who spoke for the MW country and drew the original claim boundaries (at [5]); (b) her mother was a senior Wajarri woman, whose traditional Wajarri name was Kurni/Kooni (at [12]), and her maternal grandmother was Alice Darby, the daughter of Angelina and Tom Darby (at [13]); and (c) her mother's father was Ned Papertalk who had gone through Wajarri law and had been given Alice Darby as his wife. 263 She also said:

The old people told me that Fanny's daughter, Lottie, was adopted by Jack Comeagain Senior at some point and she moved in from another group into the Mullewa Wadjari area. I was told that Lottie's father was Ned Papertalk. 82 Ms Jackamarra said:

Based variously on the limited ethnographic and ethno-linguistic record, the findings of earlier native title connection research by Weiner and myself, and the statements of the majority of contemporary senior Nanda and Wajarri people whom I have interviewed, I conclude that, with one limited exception, the entirety of the Nanda Overlap Area at sovereignty lay - and continues to lie - within traditional Nanda country.

The limited exception concerns the narrow riparian zone along both sides of the Murchison River on the northern boundary of the Nanda Overlap Area. In my view, the availability of water and other natural resources within this comparatively rich ecological niche was such that the country concerned was most likely shared and jointly owned at sovereignty by the neighbouring Nanda (southern side of the river) and Thawarda (northern side of the river).

With the post-contact demise of the Thawarda as a territorial group, Nanda have very likely succeeded to this area as exclusive traditional owners. In the immediate vicinity of the Nanda Overlap Area, the culturally licit process of succession was likely conditioned and facilitated by two main factors: (a) the fact that Nanda were, in all likelihood, already joint owners of the land and water concerned; and (b) the Thawarda and Nanda descent connections of persons - namely members of the Drage family, who now identify exclusively as Nanda - provided genealogical continuity with both Nanda and Thawarda forebears. These factors allowed the land and waters concerned to legitimately stay within the family.

Importantly, members of the Drage family also have significant residential associations with parts of former Thawarda territory around and north-east of Coolcalalaya (in the immediate vicinity of the Nanda Overlap Area). For their part, members of the Egan and Dingo families, who identify as Wajarri, have similar residential associations with former Thawarda locations further to the north-east, such as Yallalong. These different geographical foci largely explain why genealogically related persons who now variously identify as either Nanda or Wajarri respectively assert responsibility for different parts of former Thawarda country.

It is also my considered opinion that, at sovereignty, Nanda people are likely to have held and exercised the full suite of traditional territorial rights and interests in the Nanda Overlap Area, with Thawarda people also jointly holding and exercising the same rights and interests in relation only to the riparian zone of the Murchison River, which marginally impinges upon the northernmost section of the Nanda Overlap Area. As indicated above, the latter (Thawarda) rights and interests (as with those of the Nanda) most likely extended to both sides of the river at sovereignty, but are now exclusively held and exercised by the Nanda as a consequence of terminal demographic decline among the Thawarda. (Emphasis in original.)

9.4 The MW applicant's submissions

208 As with WY Issue 1, the MW applicant made an overarching submission that it is not the Court's task in an application for summary judgment to conduct a "mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial"; and instead it "requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial". It again argued that the N&WY applicants wrongly urged the Court to evaluate the evidence. 209 The MW applicant contended that: The witness statements filed on behalf of the MW Applicant, together with the Barber Report, properly interpreted, comprise evidence which supports findings in favour of the propositions asserted on behalf of the MW Applicant in relation to the issues in dispute, which can only be properly determined by a trial. In particular it submitted that the witness statements of Dr Green (at [19]-[21], [24]-[26] and [35]-[36]), Mr Papertalk (at [31], [33]-[42], [44] and [58]), and Ms Jackamarra (at [27] and [34]), set out their evidence about the extent of Thawarda Wajarri country about which they were taught and to which their ancestors were connected, and their evidence is enough to show that there are factual and evidentiary questions which can only be decided following a trial. 210 The MW applicant emphasised the following paragraphs of the MW lay witness statements, in which: (a) Dr Green said: (i) (at [27]) that "[t]he Nanda overlap area is an area [that] relates to Tharwarda Wajarri men's law business and initiation rights. I was told that there are Wajarri men's sites in the Nanda overlap area, and as women, we have limited knowledge of those sites"; (ii) (at [34]) that "I know from what my family told me that the Nanda people do not have initiation rights and do not conduct law business in the Nanda overlap area"; (iii) (at [36]) that "Tharwarda Wajarri country extends to the Murchison River. The west side of the Murchison River is Nanda country, and the east side of the Murchison River is Tharwarda country"; and (iv) that generally (not specific to the Nanda Overlap Area), her uncle Eric Papertalk had the right to practice ceremonies and take resources from the land such as food (at [30]), that "[h]aving initiation and ceremonial rites does not give you land owning rights, but it gives you the right to speak for that country" (at [32]), and that "[t]he Wajarri did not conduct cultural activities in isolation, they moved around the area. Any cultural and spiritual activity that is conducted in a particular area determines a Wajarri person's relationship to that area" (at [33]); (b) Mr Papertalk said: (i) (at [27]) that "[m]y father told me that Angelina, Jack Darby, Alice Darby, and Ned Papertalk all had connection to the Mullewa Wadjari claim area"; (ii) (at [33]) that "Tharwarda Wajarri country is considered to be located east of the circumcision line, and runs eastward along the Greenough and Murchison Rivers and stops as far east of Yalgoo"; (iii) (at [35]) that "[t]he old people told me that the Tharwarda country includes Meeberrie, Billabalong, Yallalong, Coolacalalaya Station, Twin Peaks and Yuin."; (iv) (at [41]-[42]) that "[m]y father taught me that there is a change of culture and rituals that changes at the Murchison River", and that "[t]he tribes on either side of the Murchison River are very different. I was told this as part of becoming a law man."; and (v) (at [43] ) that "I was told by the old people that Angelina was on that country with Alice Darby, Jack Darby and her son-in-law Ned Papertalk, but the white man never recorded them being there." 211 The MW applicant also relied on some parts of the lay affidavits of Bevan Drage and Robin Boddington filed by the Nanda applicants for the Separate Questions hearing, in which: (a) Bevan Drage said that he has Thawarda ancestors and a connection with Coolcalalaya Station, but also claimed to be Nanda; and (b) Robin Boddington identified the existence of a Thawarda language group and said: Some Thaagurda could have gone Nanda way. For that little area between Wajarri and Nanda, Wajarri would have taken over. Everyone uses our Wajarri language. 212 It highlighted that Dr Kenny's opinion was based on the "majority of interviews" she had conducted and the "limited and at times even contradictory" ethnographic record. It also and noted that Dr Kenny said that certain people who "self-identify as Nanda … also acknowledge Thawarda ancestral connections [and] explicitly mentioned their Thawarda (as well as Nanda) forebears." 213 The MW applicant noted that Dr Kenny accepted that, at sovereignty, a narrow riparian zone along both sides of the Murchison River on the northern boundary of the Nanda Overlap Area was shared Nanda and Thawarda Wajarri country, but said that she tried to dismiss that by saying that the shared area had been taken over through succession by the Nanda People. It argued that it is important that Dr Kenny did not dismiss the Thawarda people as never having existed, and accepted that the Thawarda had a connection to the riparian zone. On its argument the Kenny Report provided support for what Dr Green and Mr Papertalk said about the existence of the Thawarda group and their connection to at least a portion of the Nanda Overlap Area, to which they are connected through their ancestors. On its argument there is a conflict of views about whether, at sovereignty, Wajarri country extended over the Nanda Overlap Area and the Court can only decide Nanda Issue 1 upon hearing and considering the evidence in a trial. 214 It noted that Mr Papertalk said that "[o]ver time the Tharwada language slowly went extinct", but submitted that the dying-out of the Thawarda language does not directly affect the identity of descendants of the persons who used that language and the continuing traditional interests in land associated with speakers of that language. 215 The MW applicant concluded by submitting that: Given the existence of what is contained in the Witness Statements and the content of the Anthropological reports referred to above, it cannot be said that there is not an evidentiary dispute which is required to be resolved at a trial which on a view which could be taken of the content of the Witness Statements and the content of the Anthropological reports could result in a conclusion that some or all of the area of land the subject of the Mullewa Wadjari Nanda Overlap is reasonably to be concluded to have been Thawarda Wajarri land at Sovereignty and continues to be.

9.5 Consideration regarding Nanda Issue 1

216 To establish an entitlement to summary judgment on Nanda Issue 1 the N&WY applicants again analysed the MW applicant's lay evidence and submitted that its evidence did not rise to the level that the MW applicant had a reasonable prospect of success on that issue. It again said that the Barber Report was inadmissible. In opposing summary judgment on the issue the MW applicant relied on the MW lay evidence and on parts of the Kenny Report. For the reasons I now turn to explain, I am satisfied that the MW applicant does not have reasonable prospects of success on Nanda Issue 1. 9.5.1 Overarching matters 217 A number of overarching matters are material to that conclusion. 218 First, the WY People disavow any claim that, at sovereignty, Wajarri country extended westwards into the Nanda Overlap Area. The MW applicant accepted that this means that in the Separate Questions hearing it will have the onus to establish that, at sovereignty, the Nanda Overlap Area (or part of it) was WY country. 219 Second, the MW applicant's evidence falls to be considered in the context of its argument that, at sovereignty, the Wajarri People held traditional rights and interests in the Nanda Overlap Area. It did not argue that the MW group had separate native title rights and interests from the WY People in relation to the Nanda Overlap Area; rather it contended that the Nanda Overlap Area is WY country. However, the WY People expressly disavow that they held traditional rights and interests in relation to the Nanda Overlap Area at sovereignty, or now. Thus, the MW applicant seeks to rely upon the WY applicant's evidence and admissions in the SAID in relation to the WY People, but to argue that, at sovereignty, WY country was different and larger than what the WY People themselves contend. 220 Third, the MW applicant's evidence in relation to Nanda Issue 1 falls to be considered in the context that native title determinations have been made adjacent to the Nanda Overlap Area which recognise the Nanda People as the right people for that country. As a result of those determinations, many of the facts that must be proven before the Court could recognise the Nanda People as holding native title in the Nanda Overlap Area (such as facts relating to laws and customs, "society" and "continuity") have already been found to exist, albeit not specifically in relation to that area. Evidence of the facts upon which those determinations were made are not in dispute, and therefore do not need to be the subject of evidence in these proceedings. The MW applicant accepted that those determinations provide a basis for recognition by the Court of facts relating to the existence of the Nanda society, the laws and customs of the Nanda society, and the continuity of the rights and interests of the members of that society. 221 The position of the MW group is quite different. The MW People have not been recognised as an Aboriginal group or society holding native title rights and interests in any area. 222 Fourth, the MW applicant's evidence falls to be considered against the background that all participating parties except the MW applicant have agreed to the Nanda Consent Minute which seeks a determination that the Nanda People hold native title in relation to the Nanda Overlap Area. That is, all participating parties except the MW applicant consider the Nanda People, not the WY people, to be the right people for the Nanda Overlap Area. 223 Fifth, for the same reasons as explained in relation to WY Issue 1, there is no merit in the MW applicant's overarching submission that the N&WY invited the Court to conduct a "mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial" and that the Court's task "requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial". Those submissions go nowhere because here the evidence is complete and in final form; the application did not involve a "mini trial"; and that submission failed to take into account that if the moving party for summary judgment establishes a prima facie case the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary. Here, the N&WY applicants made out a prima facie case for summary judgment in relation to Nanda Issue 1 and it was necessary for the MW applicant to establish "specific factual or evidentiary disputes that make a trial necessary". It failed to do so. 9.5.2 Specific matters 224 First, Mr Barber's opinions in relation to Nanda Issue 1 are inadmissible for similar reasons to those which applied in respect to WY Issue 1. And if (contrary to my view) his opinions are admissible they carry little or no weight and do not assist the MW applicant's case on the issue. 225 At [231]-[244] of the Barber Report (set out above at [199]) Mr Barber made a number of "general findings" in relation to the extent of Wajarri country, at sovereignty, based on historical anthropological research, and on the genealogical information provided by Dr Green, Mr Papertalk and Ms Jackamarra. The general findings include that: (a) historic anthropological research indicates a Wajarri group "in the vicinity of" the MW claim area and the area described by Bates (1907) and Tindale (1940 &1974) as being Wajarri (at [231], [236]); (b) the genealogical data provided by the Claimants indicates that they are descended from Wajarri ancestors, who held rights and interests "in and around" the MW claim area in the mid to late 19th century (at [240]); (c) the genealogical data provided by the Claimants indicates that the Wajarri have been present in the region and "the vicinity of" the MW claim area since the mid to late 19th century (at [242]); and (d) travels of the mythic beings in relation to the MW claim area were described by the Claimants and provide cultural logic to the area claimed and Wajarri interests "in" the MW claim area (at [244]). 226 The MW claim area is large and the Nanda Overlap area makes up only approximately 20% of it. It is uncontentious that the remaining approximately 80% of the MW claim area is WY country. Therefore, to opine that, at sovereignty, the Wajarri People held right and interests in an area "in", "in and around" or "in the vicinity of" the MW claim area tells little or nothing about whether the area referred to falls within the Nanda Overlap Area. 227 Notwithstanding the centrality of the issue as to whether, at sovereignty, the Wajarri People held rights and interest to the Nanda Overlap Area, Mr Barber did not provide a geographically specific opinion in that regard. He only expressed opinions as to the MW People having rights and interests "in and around", "in the vicinity of" or "in" the MW claim area. He did not state that, at sovereignty, the Wajarri People held rights and interest in the Nanda Overlap Area under traditional laws and customs, nor did he state that Angelina and her daughter Alice Darby were connected to the Nanda Overlap Area. In relation to Alice Darby, Mr Barber expressed the following uncertain opinion in response to specific Question (v): The Claimants regard Alice Darby, and therefore her antecedents, as Tharwarda (Thagarda) Wajarri (Wadjari). I note Claimants believe she was born to the north of Mullewa, possibly within the Claim area (Mullewa Wadjari). I also note that birth location does not appear to convey rights and interests perse within the Claim area as the traditional system of the Claimants appears to be descent based. (Emphasis added.) 228 In Question (t) Mr Barber was asked: At sovereignty, did the Wajarri Yamatji People hold rights and interests in the land and waters of the Mullewa Wadjari/Nanda Overlap Area in accordance with the traditional laws and customs of the Wajarri Society? His answer to that question is consistent with his "general findings". He opined only that: The available genealogical and ethnographic information suggest that the Wadjari held native title rights and interests in the vicinity of the Claim area from at least the mid to late 19th century. (Emphasis added.) Mr Barber did not answer the question in the terms asked and instead limited his opinion to the imprecise description "in the vicinity of" the MW claim area. 229 Then, Mr Barber's opinion shifted, for reasons which he did not reveal. In his two answers to Questions (t)(i) (A) and (B), both of which relate to the Nanda Overlap Area, he said: A. The genealogical and ethnographic information provided by the Mullewa Wadjari (Thagarda) suggests that the Wajarri language group held rights and interests in the land and waters of the Mullewa Wadjari/ Nanda Overlap Area and continue to do so. B. The Wadjari appear to have held rights and interests in the Mullewa Wadjari overlap area; the Claimants argue these interests were comprehensive. There is insufficient data to understand the extent basis or extent of any Nanda interests within the Mullewa Wadjari Claim area. 230 I consider those opinions to be inadmissible because: (a) the Barber Report did not identify which of the Claimants provided the information said to support the shift in Mr Barber's opinion to be more geographically precise in saying that the genealogical and ethnographic information provided by the Claimants suggests that the Wajarri held rights and interests in the Nanda Overlap Area, and that it appears that the Wajarri held rights and interest in the Nanda Overlap Area; (b) more importantly, the Barber Report did not identify the nature of the information they are said to have provided which is said to justify Mr Barber's altered opinion; (c) further, as Senior Counsel for the MW applicant accepted, for the purposes of the application it is appropriate to infer that the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra represent the best information that they could give. And as I explain below, when one considers those statements, they do not provide a factual foundation for Mr Barber's opinions in relation to the Nanda Overlap Area; and (d) the genealogical information in Appendix 3 does not disclose a factual foundation for the opinion that, at sovereignty, the Wajarri group held rights and interests in the Nanda Overlap Area. 231 Fundamentally, the opinions in the Barber Report relevant to Nanda Issue 1 are inadmissible because the report is not presented in a form which makes it possible to determine whether those opinions are wholly or substantially based on Mr Barber's specialised knowledge based on training, study or experience. The report does not reveal the facts or assumptions upon which the opinions are based. It does not expose how Mr Barber applied his specialised knowledge as an anthropologist to the observed facts or assumptions to justify the opinions he expressed, and it does not expose the reasoning process leading to the opinions he expressed. Sometimes the opinions appear to be little more than speculation. 232 Further, if (contrary to my view) Mr Barber's opinions relevant to Nanda Issue 1 are admissible, I would give them little weight. Mr Barber said only that: (a) the genealogical and ethnographic information provided by the Claimants suggests that the MW language group held rights and interests in the Nanda Overlap Area; (b) the Wajarri appear to have held rights and interests in the Nanda Overlap Area; and (c) the Claimants argue that those interests were comprehensive. The uncertainty of those opinions and the way they shifted mean that they carry little weight. In my view, the Barber Report is of little or no assistance to the MW applicant's case on Nanda Issue 1. 233 Second, the MW applicant sought to "cherry pick" the Kenny Report by seeking to rely on Dr Kenny's opinion (at [114]) that, at sovereignty, a narrow riparian zone on both sides of the Murchison River on the northern boundary of the Nanda Overlap Area "was most likely shared and jointly owned at sovereignty by the neighbouring Nanda (southern side of the river) and Thawarda (northern side of the river)" (emphasis added), but disregarding her opinion that, apart from that "limited exception" the rest of the Nanda Overlap Area was exclusively Nanda country at sovereignty. 234 The MW applicant argued that Dr Kenny's opinion provided support for what Dr Green and Mr Papertalk said about the existence, at sovereignty, of a Thawarda Wajarri people and of their connection to at least a portion of the Nanda Overlap Area. That submission was just knocking over a straw man. The N&WY applicants did not seek to deny the existence of a Thawarda Wajarri people at sovereignty, and their case is not that the Thawarda Wajarri people did not have a connection to that narrow riparian zone. Rather, their case is that: (a) Dr Kenny's opinion (at [114]) was that, at sovereignty, a narrow riparian zone on both sides of the Murchison River on the northern boundary of the Nanda Overlap Area "was most likely shared and jointly owned at sovereignty by the neighbouring Nanda (southern side of the river) and Thawarda (northern side of the river)". The N&WY applicants submitted that if, at sovereignty, the Thawarda People did have rights and interests based on shared and jointly owned land in that area, that applied to the northern side of the Murchison River which is not within the Nanda Overlap Area in any case (see T-84); and (b) in any event, over time the Nanda People succeeded to that area. 235 To my mind the MW applicant's attempt to stave off summary judgment on Nanda Issue 1 by relying on a tiny sliver of the Nanda Overlap Area was indicative of the serious inadequacy of its evidence in relation to that area. 236 It was the MW applicant (not the N&WY applicants) who relied on the Kenny Report in the application, and I should not evaluate the competing evidence. But having been asked by the MW applicant to consider the report I should note that I found it to be admissible, thorough and thoughtful. Dr Kenny said: 3.3 Summary of contemporary perspectives

Among the Wadjari, children who are adopted as infants, and live with and are imbedded in the social life of the Wadjari, are regarded as part of the group. These children inherit full rights and interests in the Wadjari estate.

In some circumstances older individuals may come to have close association with the family and become regarded as close family members. These individuals, however, are not accorded full rights to the group. They are supported and fostered by the group and treated as close kinsmen. They cannot, however, lead or make decisions for the group, although they are expected to support and facilitate the actions of the Wadjari leaders and the group. (ii) under the sub-heading The Section System and Traditional Land Tenure, Mr Barber said:

The claimants have detailed genealogical knowledge of their own and neighbouring groups and longstanding relationships with individuals and groups across the Gascoyne, Pilbara and Western Desert areas. These relationships, and reference and address in these interactions, are made in this idiom. The Claimants are also able to use the section system, as a system of reference and address in their interactions with East Kimberley, Pilbara and Western Desert groups, particularly during ceremonial engagement.

The Claimants, however, argue that the system was adopted in recent times from their northern and eastern neighbours. (iii) under the sub-heading Composition of the Wadjari (Thagarda Wadjari), Mr Barber said:

The 'Muluwa/Mullewa Wadjari descend from ancestors of the Wadjari language group which has traditional rights and interests which include the current Claim area.

The use of the term Thagarda by the Claimants is synonymous with 'law-abiding' Wadjari, or Wadjari that follow traditional law and custom. In this respect the Claimants are lineages of the broader language group. The Claimants are of the view that through participation in Wadjari law and culture that they maintain the law and culture of the Claim area for their own family and the broader Wadjari group. In particular, the Claimants believe that they maintain the Wadjari traditional responsibilities to their land by continuing to follow and practice Wadjari traditional law through participation' as Wadjari traditional law exponents' in the regional traditional law of the Gascoyne, Pilbara, Western Desert and Kimberley's.

The Claimants relate that their forebears followed their law and assiduously maintained their culture and they lived within and around the Claim area on Wadjari land from prior to sovereignty to the present. The Claimants argue that they, like their forebears continue to attend and actively participate in regional circumcision and subincision ceremonies and initiate their children.

The Claimants also describe themselves as being members of the Wadjari language group. The Claimants also describe themselves as Thagarda Wadjari a classification founded on the proposition that their families practiced Wadjari law and custom from the remote past to the present. The Thagarda Wadjari regard other lineages of the Wadjari as kinsmen of the same language group who also have rights and interests in the Mullewa Wadjari claim area. (iv) Mr Barber then went on to provide the following opinions regarding the lineages of the Thawarda Wajarri People:

The Thagarda Wadjari can be described as being composed of three lineages.

The first lineage descends from Nellie (born c 1850). The Claimants have no direct knowledge of her background but believe that she was Wadjari. There is no knowledge of her husband. She had a daughter Biddy Wittamura (born c. 1871) who is also regarded as Thagarda Wadjari. Biddy married Anthony. There is no knowledge of the group of Anthony, who died at Billabong [sic] in 1923 whilst on a droving trip from Mingenew.

Biddy and Anthony had a daughter Fanny 'Judy' Taylor (Thagarda Wadjari) who also married a Thagarda Wadjari man, Jack Comeagain snr.

Fanny 'Judy' Taylor also married an unnamed man and had two daughters Milly Taylor Flanagan and Lottie Hannah. Lottie Hannah had a number of children by unnamed father/s. The children of Lottie Hannah were adopted by Ned Papertalk and Jack Comagain (Snr) both Thagarda Wadjari. These children took the Hannah surname and are regarded as Thagarda Wadjari.

Jack Comeagain had a number of other children, including Jack Comeagain Jr. These children are also regarded as Thagarda Wadjari. Jack Comeagain Jr married Jean Papertalk, also a Thagarda Wadjari. The descendants of Jack Comeagain Jr and Jean Papertalk are regarded as Thagarda Wadjari.

The second Thagarda Wadjari lineage descends from a Thagarda Wadjari man, Apbara who married Dharingga (group unknown). They had a son Bridi who was also called 'Papertalk'.

Bridi (Thagarda Wadjari) had a son Midalu, Ned Papertalk who married Guki, Alice Darby. The descendants of Ned Papertalk are regarded as Thagarda Wadjari.

A third lineage descends from George Merritt (Yilirrbirri), also a Thagarda Wadjari man. He had a son Alfred Merritt. Alfred Merritt married Minnie Cockel (group unknown). The children of Alfred Merritt and their descendants are regarded as Thagarda Wadjari and part of the Claim group.

The genealogical data indicates that the forebears of the Mullewa Wadjari Claimants resided in the vicinity of the Claim area. The current Thagarda Wadjari reside predominately in Mullewa in the vicinity of the Claim area and Geraldton, others live and work in areas from Perth to the mining towns of the Pilbara. Those are the only express references to Jack Comeagain Snr, Biddy Wittamurra, Fanny Taylor and Lottie Hannah in the Barber Report, except where Mr Barber referred to them in the genealogical chart in Appendix 3, and where he provides his opinions on the specific Questions. (d) in Chapter V - Ceremonies and Rituals, under the sub-heading Secular and Religious Leadership, Mr Barber set out what he said he was told by the Claimants, and expressed opinions in relation to their acknowledgement and observance of traditional laws and customs and maintenance of law and culture for the MW claim area. He opined that the information he was provided indicated an orderly system of transferral responsibility for law and culture from generation to generation within the MW claim group, from one senior leader onto the next senior and "best" active law man. (e) in Chapter VI - Conclusion, Mr Barber made some general findings as to the extent of Wajarri country based on historical anthropological research and his interviews with the Claimants. Mr Barber then provided his opinions on the specific Questions he was asked. For clarity I set out those opinions when dealing with each issue for decision. (f) Appendices 1 and 2 of the Barber Report comprise maps prepared by Mr Barber, he said from information provided by the Claimants, showing the travels of mythical anthropomorphic beings during the Dreamings, which travels created Wajarri country and which beings have continuing totemic significance to the Wajarri People. (g) Appendix 3 of the Barber Report comprises genealogical information regarding the MW People prepared by Mr Barber, he says from information provided by the Claimants including in relation to Jack Comeagain Snr, Biddy Wittamura, Fanny Taylor and/or Lottie Hannah and their descendants.

7.1 Whether the Barber Report is admissible

64 The N&WY applicants objected to the admissibility of numerous identified paragraphs of the Barber Report. The MW applicant denied that the report was inadmissible but did not respond to the objections by reference to the impugned paragraphs or opinions. 65 Section 76(1) of the Evidence Act provides that "evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". Section 79(1) is an exception to the opinion rule in s 76(1). It provides: 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. 66 In Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) explained that for opinion evidence to be admissible under s 79(1) of the Evidence Act: (a) the evidence must satisfy the two criteria expressed in the provision: (i) that the witness who gives the opinion evidence "has specialised knowledge based on the person's training, study or experience"; and (ii) that the opinion evidence by the witness "is wholly or substantially based on that knowledge": Dasreef at [32]; (b) the expert's opinion evidence must be presented in a form which makes it possible to determine whether the requirements of s 79 have been satisfied (i.e. that the opinion is wholly or substantially based on specialised knowledge based on training, study or experience): HG v The Queen [1999] HCA 2; 197 CLR 414 at [39] (Gleeson CJ), approved in Dasreef at [36]. It is crucial that the expert states the facts and assumptions upon which the opinion is based and expose how his or her specialised knowledge had been applied to those facts and assumptions so as to support the opinion: Dasreef at [64] and [101] (Heydon J); and (c) the expert's evidence must explain how the field of "specialised knowledge" in which the witness is an 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: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85] (Heydon JA), approved in Dasreef at [37]. Any failure to demonstrate that an opinion expressed by a witness is based on the witness' specialised knowledge is a matter that goes to the admissibility of the evidence, not its weight: Dasreef at [42]. 67 The N&WY applicants did not contend that Mr Barber lacked specialised knowledge as an anthropologist. Rather, they submitted that his opinions on the salient issues, particularly the issues arising under WY Issue 1, Nanda Issue 1 and Nanda Issue 3 are inadmissible because the Barber Report: (a) is not presented in a form which makes it possible to determine whether the requirements of s 79 have been satisfied (i.e. that the opinion is wholly or substantially based on the specialised knowledge he acquired through his training, study or experience as an anthropologist); (b) does not reveal the facts or assumptions upon which Mr Barber's opinions are based and does not expose how Mr Barber had applied his specialised knowledge as an anthropologist to those observed facts or assumptions so as to support his opinions; (c) does not expose Mr Barber's reasoning process leading to the salient opinions he expressed; and (d) provides opinions which are speculative. 68 I deal with the admissibility of Mr Barber's opinion when dealing with each of the issues for decision. For the present, it suffices to provide the following example of the deficiencies with which the Barber Report is littered. Mr Barber opined as follows (at [240]-[241]):

Historic anthropological research indicates a Wadjari group in the vicinity of the Claim area and the area described by Bates and Tindale as being Wadjari. …

The published work of Bates (1907) and the work of Tindale (1940 & 1974) locate and provide detail about the location of Wadjari interests, provided by Wadjari in the early and mid-20th century. The Wadjari informants of both authors were likely to have been born in the mid to late 19th century. The information provided to Bates (1907) and Tindale (1940 & 1974) place Wadjari interests in the vicinity of the current Claim area.

At the time when Bates (1907) and Tindale (1940, 1974) conducted fieldwork their informants are likely to have experience and knowledge of their traditional rights and interests for the period from before sovereignty or from the early days of European settlement. I n this respect it is likely the genealogical information collected by Bates (1907, 1984) and Tindale (1940, 1974) collected detail of structure of indigenous groups in the area extending to the period prior to sovereignty.

This information was not available to the author of this report. …

The genealogical data presented in Appendix 3 was provided by the Claimants. This data indicates that the Claimants descend from Wadjari ancestors, who held rights and interests in and around the Claim area in the mid to late 19th century. It also suggests that the Thagarda Wadjari are members of the Wadjari language group, the members of which have traditional rights and interests in and around the Claim area.

The genealogical information suggests that it is arguable that the Wadjari system of native title was cognatic from the latter 1850s a period of significant social change. From that time, and for the span of time of the Claimant genealogical knowledge, it appears that rights and interests continue to be conveyed to Wadjari descendants by cognatic descent. 69 There Mr Barber said that the genealogical information he set out in Appendix 3 in relation to what he describes as the "first lineage" of the MW People (see excerpt at [63(c)(iv)] above) (being the descendants of Jack Comeagain Snr, Biddy Wittamura, Fanny Taylor and Lottie Hannah) was provided to him by the Claimants. Based on that information he expressed the view that the MW native title claim group are descendants of Wajarri ancestors who held rights and interests "in and around" the MW claim area at or around effective sovereignty, which rights and interests had been conveyed to them by cognatic descent. 70 The MW applicant did not address the objections with sufficient specificity. Rather, it submitted that the Barber Report made it clear that the source of the genealogical information in Appendix 3 and of the conclusions Mr Barber reached were based on the discussions he had with the Claimants in August and September 2023. That submission failed to come to grips with the heart of the N&WY applicants' objections. 71 Those opinions are inadmissible because: (a) the Barber Report did not identify which of Dr Green, Mr Papertalk and/or Ms Jackamarra provided the information said to support his opinions that: (i) Jack Comeagain Snr, Biddy Wittamura, Fanny Taylor and/or Lottie Hannah were Wajarri people who, at effective sovereignty, held rights and interests "in and around" the MW claim area; or (ii) Dr Green, Mr Papertalk and Ms Jackamarra had been conveyed those rights and interests by cognatic descent; (b) more importantly, the Barber Report did not identify the nature of the information they are said to have provided which is said to justify the opinions Mr Barber expressed; (c) further, as Senior Counsel for the MW applicant accepted, for the purposes of the summary judgment application it is appropriate for the Court to infer that the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra represent the best information that they could give: see T20.27. It would be wrong to approach the Barber Report on the basis that the Claimants were able to provide Mr Barber with better information than that contained in their lay witness statements, particularly when the Barber Report does not identify which of them said what, nor the nature of the information they provided which justified the opinions expressed. And where the witness statements of Dr Green, Mr Papertalk and/or Ms Jackamarra do not provide a factual foundation for the opinions expressed by Mr Barber, the Barber Report does not expose what other information those informants provided to justify the opinions expressed; and (d) the genealogical information in Appendix 3 does not disclose any factual foundation to support the opinions that Jack Comeagain Snr, Biddy Wittamura, Fanny Taylor and/or Lottie Hannah were Wajarri people who, at effective sovereignty, held rights and interests in the MW claim area. Nor do the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra provide a factual foundation for such a conclusion. For example, the MW applicant belatedly accepted that there is no evidence that Biddy Wittamura was a Wajarri ancestor with rights and interests in the MW claim area. 72 Fundamentally, the Barber Report is inadmissible because it is not presented in a form which makes it possible to determine whether the opinions which are significant to WY Issue 1, Nanda Issue 1 and Nanda Issue 3 are wholly or substantially based on Mr Barber's specialised knowledge based on training, study or experience. It does not reveal the facts or assumptions upon which the opinions are based. It does not expose how Mr Barber applied his specialised knowledge as an anthropologist to the observed facts or assumptions to justify the opinions he expressed, and it does not expose the reasoning process leading to the opinions he expressed. As I will explain, sometimes the opinions appear to be little more than speculation. 73 Further, while this does not go to admissibility, the "general findings" in the Barber Report regarding the extent of Wajarri country are imprecise and rise no higher than broad statements that the Wajarri had, and have, traditional rights and interests "in", "in the vicinity of" and "in and around" the MW claim area. And the opinions regarding the continuity of observance and acknowledgment of traditional laws and customs by the Wajarri people expressed in Chapter V - Ceremonies and Rituals, under the sub-heading Secular and Religious Leadership, are no more geographically specific than references to "in", "within and around" or "within the vicinity of" the MW claim area. Therefore, if (contrary to my view) the Barber Report is admissible, the opinions are of little or no assistance to the MW applicant in establishing that: (a) at sovereignty, the WY People held rights and interests in the land and waters of the Nanda Overlap Area in accordance with the traditional laws and customs of the Wajarri Society (Nanda Issue 1); or (b) the WY People have continued to acknowledge and observe, substantially uninterrupted from sovereignty to the present day, their traditional laws and customs such that they have rights and interests in, and a traditional connection to, the land and waters of the Nanda Overlap Area (Nanda Issue 3).

WY Issue 1 - Whether Additional Apical Ancestors should be added to the WY Application 74 The N&WY applicants had the onus to establish that the MW applicant has no reasonable prospect of successfully prosecuting its case in relation to WY Issue 1, which is as follows: Should Jack Comeagain Senior, Biddy Wittamurra, Fanny (Judy) Taylor/Papertalk/Comeagain and/or Lottie Hannah be added to Schedule 7, item (a) of the WY Consent Minute as ancestors for the native title holders, or is any one of them a descendant of a person in Schedule 7, item (a) of the WY Consent Minute? 75 The MW applicant accepted that there is no evidence that Biddy Wittamurra was a member of the Wajarri People and withdrew the contention that she should be added as a WY apical ancestor or be found to be a descendant of one of the identified apical ancestors.

8.1 The pleadings and evidence regarding Jack Comeagain Snr

76 The MW SSFIC and the MW F&BP are effectively the pleadings which set out the MW applicant's case. 77 In relation to Jack Comeagain Snr the MW SSFIC alleges as follows:

The work of Tindale (1974) suggests some shift in territorial interests in the region, in particular a shift of interests of inland groups toward the coast. The genealogies indicate the Wadjari have been present in the region and the vicinity of the Claim area since the mid to late 19th century.

The Claimants provided detail of Wadjari myths of bimara (water snake), marlu (red kangaroo) and yalabardi (emu). These myths provide cultural reasoning for the foundation of male Wadjari ritual and ceremony and, rights and interests in the Claim area for the Wadjari.

The travels of the mythic beings in relation to the Claim area were described and provide cultural logic to the area claimed and Wadjari interests in the Claim area and of Wadjari Law and Custom… (Emphasis added in bold.) 200 Mr Barber gave the following answers to the specific Questions he was asked in relation to whether, at sovereignty, Wajarri country extended over the Nanda Overlap Area: (i) Question (t): In relation to the identify [sic] the pre-sovereignty society of the Mullewa Wadjari/Nanda Overlap Area: (i) At sovereignty, did the Wajarri Yamatji People hold rights and interests in the land and waters of the Mullewa Wadjari/Nanda Overlap Area in accordance with the traditional laws and customs of the Wajarri Society; A. Have the Wajarri Yamatji People continued to acknowledge and observe, substantially uninterrupted from sovereignty to the present day, their traditional laws and customs such that they have rights and interests in, and a traditional connection to, the land and waters of the Mullewa Wadjari/Nanda Overlap Area. B. If so, what is the nature and extent of the native title rights and interests in land and waters held by the Wajarri Yamatji People in the Mullewa Wadjari/Nanda Overlap Area. (ii) Alternatively, at sovereignty, did the Nanda People hold rights and interests in the land and waters of the Mullewa Wadjari/Nanda Overlap Area in accordance with the traditional laws and customs of the Nanda society. … Answer (t)(i): (t)&(i) The available genealogical and ethnographic information suggest that the Wadjari held native title rights and interests in the vicinity of the Claim area from at least the mid to late 19th century. Answer (t)(i)A: B. The genealogical and ethnographic information provided by the Mullewa Wadjari (Thagarda) suggests that the Wajarri language group held rights and interests in the land and waters of the Mullewa Wadjari/ Nanda Overlap Area and continue to do so. Answer (t)(i)(A) above was numbered in the Barber Report as Answer (t)(i)(B). I assume that to be an error and I refer to it as Answer (t)(i)(A). Answer (t)(i)B: B. The Wadjari appear to have held rights and interests in the Mullewa Wadjari overlap area; the Claimants argue these interests were comprehensive. There is insufficient data to understand the extent [sic] basis or extent of any Nanda interests within the Mullewa Wadjari Claim area. Answer (t)(ii): (ii) There is insufficient information to ascertain whether or not the Nanda People held rights and interests in the Mullewa Wadjari/ Nanda Overlap area. It is noted that the Mullewa Wadjari, claim to have comprehensive and primary rights and interests in the entirety of the Mullewa Claim area and broader Wadjari land. 201 In relation to Alice Darby, Question (u) asked: Did Angelina possess rights and interests under traditional law and custom in the Mullewa Wadjari Remaining Claim Area [meaning the Nanda Overlap Area] or Wajarri Yamatji area [meaning the WY Overlap Area], and if so, which part or parts of the Mullewa Wadjari Remaining Claim Area or Wajarri Yamatji area? Answer: The Claimants regard Alice Darby, and therefore her antecedents, as Tharwarda (Thagarda) Wajarri (Wadjari). I note Claimants believe she was born to the north of Mullewa, possibly within the Claim area (Mullewa Wadjari). I also note that birth location does not appear to convey rights and interests per se within the Claim area as the traditional system of the Claimants appears to be descent based. 202 In relation to Angelina, Question (v) asks: Was Angelina a Tharwarda Wajarri person? Answer: I do not have information about Angelina. 203 The MW applicant pointed to passages in the Kenny Report, where Dr Kenny opined: (a) at [25]: The Nanda people who claim the Nanda Overlap Area (as part of the Nanda People Native Title Application Area) self-identify as Nanda. In some instances, however, certain claimants also acknowledge Thawarda ancestral connections. For example, in discussions about their ancestry, Jacko Whitby and Bevan Drage explicitly mentioned their Thawarda (as well as Nanda) forebears. (b) at [32]-[33]: Members of neighbouring Wajarri families, who are specifically associated with Wajarri areas adjacent to (east of) Nanda country, are also of the view that the Nanda Overlap Area belongs to the Nanda People. See 4.1 for details. The notable exception to this widely-held view are members of the Mullewa Wadjari claim which overlaps the Nanda Overlap Area entirely. Members of the Papertalk family thus assert that the Nanda Overlap Area is part of 'Tharwarda Wadjari' country and that the western boundary of their own (Mullewa Wadjari) claim area is defined by the 'circumcision line'. (c) at [82]-[84]: I also spoke with Mullewa Wadjari claimants about the Nanda Overlap Area. Charmaine Green, a senior member of the Mullewa Wadjari Community claim (WAD21/2019), said that the Nanda Overlap Area is Mullewa Wadjari. She maintains that the boundary of the Nanda Overlap Area was set by 'E.P.' (the late Eric Papertalk) and that there are initiation sites in this area. According to senior Mullewa Wadjari men Leedham Papertalk and Patrick Papertalk, the Nanda Overlap Area is 'Wadjari/Tharwarda' country. Leedham added that the western boundary of 'Wadjari/Tharwarda' country is the circumcision line (see 3.4 above). I note here that the territorial perspectives espoused by Ms Green and Messrs Papertalk - each of whom self-identify as Wajarri - are minority views among the wider group of Wajarri persons interviewed by Weiner and myself at different times between 2007 and 2023. 204 On the MW applicant's argument, Dr Kenny then jumped to the erroneous conclusion (at [85]): Based upon the previously recorded views of Wajarri Yamatji and Nanda people (see also 4.2.2), the majority of the interviews I have personally conducted, and the ethnographic record - though limited and at times even contradictory - it is my considered opinion that (a) Wajarri people did not hold territorial rights and interests in the Nanda Overlap Area at sovereignty and (b) Wajarri country lay immediately to the east of the Nanda Overlap Area. (Emphasis in original.) 205 The MW applicant also relied on Dr Kenny's opinion (at [113]) which indicated a "limited exception" to her (erroneous) conclusion that, at sovereignty, the Nanda Overlap Area was Nanda country. Dr Kenny opined (at [102]): According to the Nanda Connection Report as well as a supplementary report by Volpe and Weiner's independent findings concerning the extent of Wajarri country, the Nanda Overlap Area lies within Nanda country. For the reasons alluded to in footnote 170 below, and more extensively elaborated upon in 4.3 below, this identification includes a small portion of the northern boundary of the Nanda Overlap Area that may possibly once have been Thawarda territory. Recent consultations with Nanda and Wajarri people between May and September 2023 have confirmed that the majority of those interviewed (both Nanda and Wajarri) consider that Nanda people hold traditional rights and interests in the entirety of the Nanda Overlap Area. Details are set out in the following paragraphs. 206 In footnote 170 to that paragraph, Dr Kenny said: In the Nanda Connection Report I indicated that there were different views about the position of the eastern extent of Nanda country (Kenny 2014: [8]. [152]. These views related mainly to areas along the Murchison River and to the north-east that were once probably associated with Thawarda people and were gradually incorporated into Nanda country through legitimate processes of territorial succession occasioned by demographic decline (Kenny 2014: 50, 77-78. See also Volpe (2016a: 20-22). For further discussion see 4.3 below. 207 Dr Kenny reached the following conclusion (at [113]-[117]): 4.2.3 Conclusion

Evidence Act 1995(Cth)ss 76, 79, 140

Native Title Act 1993(Cth)ss 47, 47A, 47B, 84D

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