REASONING OF THE PRIMARY JUDGE
13 The primary judge noted that Mr McCaul was a well-qualified and experienced anthropologist who obtained a Batchelor of Arts in Social Anthropology (with Honours), whose evidence and opinions his Honour considered to be reliable. His Honour drew the following matters from the evidence of Mr McCaul (at [53]-[57]):
The Coffin Family Tree
53 The father of the William (Bill) Coffin named in the separate question was also William (Bill) Coffin. In order to distinguish between them, I will, like Mr McCaul, refer to the former as Bill Coffin Senior and to the latter as Bill Coffin Junior. The mothers of both Bill Coffin Senior and Bill Coffin Junior had the name Maggie. Again, in order to distinguish between them, I will refer to the mother of Bill Coffin Senior as Maggie and to the mother of Bill Coffin Junior as Maggie Maguwija, this being her full documented name.
54 Bill Coffin Senior died in 1929 and Bill Coffin Junior died in 1984.
55 The contentions of the Wunna Nyiyaparli Applicant which give rise to the separate question are seen not only in Sch F to its application, but also in a Statement of Issues, Facts and Contentions it filed on 30 April 2015. That Statement asserts that Bill Coffin Junior was born at Roy Hill to Maggie Maguwija and Bill Coffin Senior (who is described in the Statement as "a 'half cast' Malay"); that Bill Coffin Junior's paternal grandfather was a Malay man (Sidong); and that his paternal grandmother was a full blood Nyiyaparli woman named Maggie. Other evidence indicates that Bill Coffin Junior had two half-brothers (Gordon Mackay and Roy Mackay) resulting from Maggie Maguwija's relationship with a George Mackay. Maggie Maguwija also had a relationship with George Mackay's brother, Jack Mackay, resulting in Bill Coffin Junior having another half-brother, Alec Mackay.
56 Using information from his own research and from that provided by Mr de Gand (who had provided an anthropological report at the request of the Wunna Nyiyaparli), Mr McCaul provided the following family tree for Bill Coffin Junior. It is a little more complex than many family trees of its kind because Bill Coffin Senior had also had a relationship with Ivy Sandford, who bore him six children and Maggie Maguwija had the relationships just mentioned with George and Jack Mackay, bearing children to both.
57 Mr McCaul described this family chart as uncontroversial and, on the evidence received in the trial, there is no reason to dispute the accuracy of that assessment.
14 His Honour then considered that the separate question identified two alternative means by which Maggie could be held to be a Nyiyaparli person:
(a) by descent; and
(b) as a person possessing rights or interests in the land and waters claimed and with a connection to those land and waters, both in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyiyaparli.
15 His Honour approached the matter on the balance of probabilities consistent with the preceding authority. His Honour proceeded to address the laws and customs of the Western Desert people and considered it necessary to determine whether the Nyiyaparli traditional laws and customs to which the separate question refers are those of the Western Desert society. Mr Stock addressed this topic in his statement for the preservation evidence hearing to the effect that rights and interests of the Nyiyaparli arise by descent, rather than by any other means which may be recognised by the Western Desert people. That issue was addressed in some detail by Mr McCaul in his report in which he concluded that the Western Desert laws and customs do not govern the way that the Nyiyaparli obtain rights and interests in land. His Honour continued (at [69]-[73]):
69 Mr McCaul reached this conclusion by relying, in part, on the ethnographic works of others. These included Norman Tindale, the ethnologist at the South Australian Museum who had gathered genealogical data in various field expeditions; Carl-Gustaf von Brandenstein, the linguist who had carried out field work with a number of Nyiyaparli speakers in the 1960s; Professor Tonkinson, the Professor of Anthropology at the University of Western Australia who had conducted long term field work at Jigalong (which is towards the eastern border of the area claimed by the Nyiyaparli); Professor Sutton of the University of Adelaide who is an acknowledged linguistic and anthropological consultant; and Professor Berndt who, as Professor of Anthropology at the University of Western Australian, undertook extensive field work with the Western Desert People.
70 Mr McCaul gave a number of reasons for his conclusion that the Nyiyaparli do not obtain interests in land in accordance with Western Desert law and custom:
(a) the ethnographic evidence indicates that Nyiyaparli country is to the west of that of the Western Desert cultural bloc. In particular, the map drawn by Professor Tonkinson published in his work in 1991 showing the approximate boundaries of the Western Desert Society indicates that the western boundary of Western Desert country is a little to the east of Jigalong which is the approximate eastern boundary of Nyiyaparli land. This is significant given the extensive field work Tonkinson had carried out at Jigalong in the 1960s and 1970s;
(b) in his seminal work in 1959, Professor Berndt did not include the Nyiyaparli in the list of the various dialect names which he considered comprised the Western Desert cultural bloc. This was significant as Professor Berndt was aware of the Nyiyaparli, having noted the presence of some of them at Jigalong Mission;
(c) Professor Tonkinson distinguished the Western Desert bloc from the Nyiyaparli, suggesting that:
The rangeland country on the fringes of the western boundary was another significant physiographic boundary between desert groups and those like Nyamal and Nyiyaparli who traditionally occupied the upland areas west of the [Martu] claim area.
Later, Professor Tonkinson recorded explicitly that "the Nyiyaparli are not a desert group";
(d) both Professors Berndt and Tonkinson regarded a common language composed of a network of related dialects as one of the defining features of the Western Desert cultural bloc. However, Nyiyaparli is not a Western Desert dialect. This was recognised by RMW Dickson, an authority on Australian language classification, who has provided a nationwide classification of dialect into languages and of languages into linguistic groups. Dickson classified the Nyiyaparli as a dialect of a different language, being part of what he called the Pilbara/Ngayarta language group;
(e) contemporary Nyiyaparli claimants such as David Stock in the passage quoted above do not consider themselves be part of the Western Desert bloc;
(f) there are differences in the laws and customs of the two groups. For the Nyiyaparli, the primary path to rights and interests in land is by inheritance from parents and grandparents whereas in the Western Desert cultural bloc, rights and interests may be acquired by other means and, in particular, by long term occupation accompanied by intimate knowledge of the land and its religious geography;
(g) the laws and customs of the Nyiyaparli people are consistent with those of other Pilbara groups rather than with those of the Western Desert cultural bloc.
71 I accept Mr McCaul's opinions about these matters. He has personal experience with the Western Desert bloc, albeit with its members in South Australia rather than in Western Australia. Mr Caul's [sic] opinion is soundly based and there is no evidence contradicting it. Mr McCaul did have access to the opinion of Mr de Gand at the time of preparing his opinion but it is not clear that Mr de Gand was in fact expressing an opinion to the contrary.
72 Counsel for the Nyiyaparli drew attention to an apparent inconsistency in the reliance by the Wunna Nyiyaparli Applicant on the laws and customs of the Western Desert cultural bloc. Their contention is that those laws and customs allow that a right or interest in land may be acquired by reason of the place of one's birth, with the consequence that Bill Coffin Senior acquired the claimed rights and interests in Roy Hill Station by virtue of having been born there. However, if that be right, it should apply to the other descendants of Bill Coffin Senior as well, and yet the Wunna Nyiyaparli Claim specifically excluded some of those descendants.
73 I accept that there is this inconsistency, but prefer not to attach significant weight to it for the purposes of determining the separate question. On my assessment, the matters to which Mr McCaul refers on this issue are much more significant.
16 On turning to examine the Nyiyaparli traditional law and custom, his Honour noted the following (at [74]-[86]):
74 As noted, the second limb of the separate question requires consideration of whether Maggie was a Nyiyaparli person possessing rights and interests in, and a connection with, the land and waters of the claimed area in accordance with traditional laws acknowledged and traditional customs observed, by the Nyiyaparli people. Mr McCaul reported on the pathways by which people obtain rights and interests in land and waters in accordance with Nyiyaparli laws and customs. He noted at the outset that there is no substantial ethnographic record regarding such pathways. In that circumstance, Mr McCaul made use of three sources of information:
(a) general anthropological understandings;
(b) relevant ethnographic data from neighbouring groups; and
(c) information provided by the Nyiyaparli claimants.
75 As to the first, Mr McCaul noted that across most of Australia, descent is the fundamental principle and a basic requirement for membership in a landowning group. There are, however, exceptions. Mr McCaul referred in this respect to the work of Professor Sutton:
The land holding groups of classical Aboriginal societies are widely reported as being based on descendedness, but they were most frequently formed on a basis of serial patrifiliation, not on descent from particular named, apical ancestors. Post classical Aboriginal societies have moved towards the formation of groups of descendants based on common relationships to named individual ancestors. It is important to recall that relationships with forebears are not the exclusive pathway to membership of country-holding groups or sets of people. There are parts of Australia where neither descent groups nor groups formed by a serial parental filiation play a privileged role or perhaps any role in the formation of such groups or sets. The Western Desert is the prime example of this.
76 Mr McCaul also referred to Professor Sutton's statement that it was commonly patrifiliation which gave rise to rights and interests in land:
Patrifiliation, serial or otherwise, is often the normative or privileged basis of recruitment to groups that are corporate with respect to land and waters as property in classical Aboriginal Australia.
77 Having regard to the extensive review of nationwide ethnographic data undertaken by Professor Sutton and his own native title work in various regions of Australia, Mr McCaul expected that "descent", or more appropriately "serial-filiation" (the relationship between parents and child) would be a critical factor in establishing rights and interests in land in the Pilbara region. I accept that this is so, while at the same time noting Professor Sutton's observation that relationship by ancestry is not the exclusive means by which a person may obtain rights and interests in land.
78 In relation to the laws and customs of neighbouring groups, Mr McCaul referred to ethnographic data concerning the Kariyarra People and the Pandjima (Banjima). With respect to the Kariyarra, Mr McCaul referred to the work of Radcliffe-Brown in 1930 who had reported that the social organisation of the Kariyarra was also found in other tribes including the Pandjima (Banjima) and the Bailgu (Palyku). Mr McCaul gave reasons for considering that Radcliff-Brown's reference to the Bailgu could be taken as applying also to the Nyiyaparli. Radcliff-Brown reported the following concerning group membership among the "Kariera Type" groups:
A tribe is divided into hordes, each with its own defined territory. Membership of the horde is determined by descent in the male line; that is to say, a child belongs to the horde of its father and inherits hunting rights over the territory of the horde. The horde is exogamous and since marriage is apparently always patrilocal a woman changes her horde on marriage, passing from that of her father to that of her husband. There are no specific names for the hordes, but any given horde can be identified by naming any of the important camping places in its territory.
79 With respect to the Pandjima (Banjima), Mr McCaul referred to the work of Palmer in 2008. Palmer found that "descent is a fundamental principle to which claimants make reference when asserting their rights to country", with such rights able to be gained from both patri-filiates and matri-filiates. That is to say, it seems that the strict patri-filial descent on which Radcliff-Brown reported has evolved among the Banjima to include both matrilineal and patrilineal descent.
80 In relation to information provided by the Nyiyaparli claimants, Mr McCaul referred, by way of example, to what he had been told by six of those claimants:
(a) Gordon Yuline answered the question of how a Nyiyaparli person becomes a landowner by saying: "All depends on your parents. Where they come from. You look after their country. Your children come and look after it then."
(b) Reggie Malana and John Cadigan said that Bruce Bung should be looking after a hill at Mount Newman "because that was his father's country";
(c) Reggie Malana talked about his connection to a place called Wuruwurunha because it was his grandfather's country;
(d) Raymond Drage said that your "main area" was determined by your grandfather's country;
(e) Bonny Tucker described her country as "Marilana - that's my country now. My mother's country. Weela Wolli Creek - that's where my grandfather come from";
(f) Michael Stream said that your country is "where the bloodline is".
81 Some of the Nyiyaparli witnesses spoke on this topic in their witness statements. Hilda Flann said:
[8] A person becomes Nyiyaparli by having a Nyiyaparli parent and grandparent. You cannot become Nyiyaparli by just being born on Nyiyaparli country. I was born at Shaw River and lived at Marble Bar but cannot claim Nyamal country though (sic) being born or living there.
82 Bruce Bung (Snr) said that he was a Nyiyaparli man through his father and his mother who were both Nyiyaparli and continued:
[5] To be a Nyiyaparli person you need to know your family and how you fit into the country. I was born in Onslow but my country is Nyiyaparli, so being born somewhere does not give you a say in that country, you need to go back to that family connection. Where you are buried does not give you a right to speak for that country, you need to go back to that family connection. If I passed away in Meekathara, I am still a Nyiyaparli man and my country is around Mount Newman and Jigalong - I would not become boss for Meekathara.
Thus, Bruce Bung said that Mintaramunha (Mount Newman) is part of his Nyiyaparli country through his father and the Watch Point Hill area near Jigalong is part of his country through his mother.
83 Keith Hall described himself as being Nyiyaparli by following his mother's line. He said:
[14] You have to follow your bloodline back to where your people came from. I was born in Port Hedland but that does not give me a right to claim Port Hedland. Cheryl Yuline, Paru, was born in the Spinifex in Googlegong in Nyamal country and my sister Edith was born in Googlegong, but we are all still Nyiyaparli people. People can be born anywhere.
84 David Stock accepted that a lot of Western Desert people did have a strong connection to Nyiyaparli country "because that is where they came in from the desert a long time ago". Mr Stock continued:
We share Jigalong, but it is in Nyiyaparli country and belongs to the Nyiyaparli. We go and join up with them at law time but we are the boss.
Mr Stock gave evidence to a similar effect in his oral evidence at the preservation hearing.
85 I consider it pertinent that Mr Stock, who had been living in Roebourne was prompted to come back to Nyiyaparli country by Long Bob, Pommy Charlie and Munda Stevens, who he described as "the old fellows that I used to work with in Roy Hill" and who were from the Western Desert. These men had told Mr Stock that he should come and speak for the place because it was not for them to do so. The circumstance that Western Desert men encouraged Mr Stock to come to speak for the country is not necessarily inconsistent with rights and interests in land being acquired in accordance with the laws and customs of the Western Desert cultural bloc but it does seem to reflect a recognition by older Western Desert people that it is not their laws and customs but instead Nyiyaparli laws and customs which govern rights and interests in land in Nyiyaparli country.
86 Finally, I note that in her witness statement provided as part of the preservation evidence hearing, Bonny Tucker said:
[67] Martu are desert people. They came in from the desert long time ago and stopped in Nyiyaparli country. Our languages are different. Our country and culture is different and different ways of eating food. At law time we come together with the desert people. But we have different painting and dress and different songs.
17 Importantly his Honour accepted all of that evidence. He accepted there had been some intermingling of Western Desert people with Nyiyaparli as the Western Desert people came out of the desert and commenced living on Nyiyaparli land. That movement seemed to have been the result of mission activity. However, the evidence did not support the view that the laws and customs of the Western Desert people, particularly those governing the holding of rights and interests in land and waters, had supplanted those of the Nyiyaparli.
18 Against that background, his Honour then turned to examine the key question surrounding Bill Coffin Senior and Maggie saying (at [88]-[98]):
88 There is very little evidence about Maggie, the subject of the separate question. Mr McCaul attributes this in part to the "shallowness of genealogical reckoning" in Australian Aboriginal societies. This is a consequence of the traditional practice of avoidance of mention of the names of deceased persons and the associated limitation of explicit discussion of deceased people more generally, thereby reducing the extent to which knowledge of deceased forebears is transmitted down the generations. Mr McCaul considers it not unusual therefore, that the current generations of the Nyiyaparli and Wunna Nyiyaparli Applicants have limited knowledge only of the generations before that of William Coffin Junior.
89 Accordingly, it is convenient to commence with the consideration of the evidence concerning Bill Coffin Senior, as it is uncontroversial that he was the father of Bill Coffin Junior.
90 In 1978, Bill Coffin Junior was interviewed as part of a Battye Library oral history program, and answered a number of question [sic] concerning the identity of his parents:
A: My mother was a full blood but she had plenty of brains.
Q: She was a full blood from what tribe, do you know what tribe she came from?
…
A: Munda Station near Port Hedland.
Q: Oh Munda Station, yes.
A: Yes, near Port Hedland. That was owned by Mackays too. And Roy Hill was owned by Mackays.
…
Q: Right. And who was your father?
A: Bill Coffin.
Q: Was he a part aborigine was he?
A: He was half cast like myself now.
Q: And where did he come from?
A: Millstream. Roebourne district.
91 Later in the same interview, Bill Coffin Junior said that his father had been a teamster who carted goods between different locations. This lead Mr McCaul to surmise that Bill Coffin Senior had originally come to the Roy Hill area when he carted goods there from Roebourne. Whether that be right or wrong, Bill Coffin Junior's belief that his father had come from the Millstream Roebourne district is inconsistent with him having been a Nyiyaparli man.
92 As represented in the family chart set out earlier, Bill Coffin Junior had a half-brother, Jack Coffin, who was a child of Bill Coffin Senior and Ivy Sandford. That is to say, Bill Coffin Senior fathered both Bill Coffin Junior and Jack Coffin.
93 On 14 May 1996, Jack Coffin was interviewed by Louis Warren who was then employed in the Western Australian Departments of Aboriginal Sites and Aboriginal Affairs. In that interview (conducted by Mr Warren in a private capacity), Jack Coffin gave the following history concerning his father and Bill Coffin Junior:
Bill [Coffin] was my half-brother - had a different mother. He was older than me. My father was called Bill - he named his son William and thought it was a different name, didn't know that it would end up as Bill. Bill Coffin was born on Roy Hill. His mother was also born on Roy Hill. My father came from Roebourne way, Cooyapooya (ie Station) or somewhere from down that way. It was a long way for him to travel at that time. People didn't travel as much in those days.
(Emphasis added)
94 Thus, both Bill Coffin Junior and Jack Coffin thought that their father had come from an area near Roebourne, some distance to the northwest (and well outside) of the Nyiyaparli claim area. Like Mr McCaul, I regard this as suggesting that Bill Coffin Senior had been born and grown up in an area near Roebourne. On the basis that Bill Coffin Senior is likely to have been born before the significant population movements which occurred after colonisation reached the Pilbara, this makes it likely that his mother, Maggie, had also been from that area.
95 Mr McCaul examined the available documentary information concerning Sidong who is said to have been the father of Bill Coffin Senior. That information does not provide any evidence that he fathered Bill Coffin Senior to a Nyiyaparli woman named Maggie. It does indicate that he married an Aboriginal woman named Diana in 1896 in Roebourne and that he had some association with Roy Hill from 1900 to 1914. The evidence concerning Sidong does not permit any inferences to be drawn regarding the identity of Bill Coffin Senior's mother.
96 None of the Nyiyaparli witnesses had any knowledge of Maggie, with Mr Stock saying that he had never heard about "any old Nyiyaparli Maggie before", although he had heard of Maggie Maguya (Bill Coffin Junior's mother).
97 I note that in an interview with Ms Wissing on 3 March 2010, Amy Dhu (Bill Coffin Junior's daughter) said that all that she knew of her father's grandmother was that her name was Maggie.
98 The Nyiyaparli Applicant also adduced evidence concerning the identity of Bill Coffin Junior's mother (Maggie Maguwija). However, it is not necessary to make findings concerning her identity for the purposes of the resolution of the separate question, which focuses on the identity of Bill Coffin Senior's mother. I note, however, that the evidence suggests that she was a Kariyarra woman from Mundabullangana Station.
19 The primary judge concluded that the Wunna Nyiyaparli had not established on the balance of probabilities that Maggie was a Nyiyaparli person by descent.
20 His Honour then went on to consider the second limb of the separate question, namely that of obtaining rights and interests in land through pathways other than descent. There again, the primary judge turned to the evidence of Mr McCaul noting that (at [100]-[112]):
100 Mr McCaul accepted that the laws and customs of the Nyiyaparli did allow for the possibility of persons becoming Nyiyaparli other than by descent. In fact, Mr Stock stated that Gordon Mackay had been accepted by the old people as Nyiyaparli. Bonny Tucker spoke of a child of non-Nyiyaparli parents who had been adopted by a Nyiyaparli parent and brought up as Nyiyaparli. Mr McCaul stated that that person, and her descendants, are today recognised by the Nyiyaparli community as Nyiyaparli. The Nyiyaparli witnesses were agreed that, for this to occur, the person had, at the least, to have knowledge of Nyiyaparli law and custom. In some cases this was made evident by them going "through the law."
101 Mr McCaul described this process as being "exceptional", suggesting that the circumstance that the Nyiyaparli claimants to whom he had spoken had referred to only two cases was an indication of the rarity of the circumstances in which persons had acquired interests other than by descent.
102 I accept the evidence which indicates that mere birth or burial on Nyiyaparli country, speaking the Nyiyaparli language, or marrying a Nyiyaparli person does not make a person Nyiyaparli. I accept in this respect Mr McCaul's opinion that "if incorporation occurs it is as the result of an ongoing social process, not the simple result of a singular event, such as one-off participation in ceremony, or simple co-residence. It is a process that ultimately requires acceptance both by the community members and by the person being incorporated".
103 The evidence does not support the conclusion that Maggie, Bill Coffin Senior or Bill Coffin Junior had been recognised by the Nyiyaparli in this way.
104 David Stock is a Nyiyaparli elder. He was born in the early 1930s on Roy Hill Station. Mr Stock's father was a Banjima man and his mother a Nyiyaparli woman. Mr Stock's parents worked on Roy Hill Station and sometimes at the adjacent Marilana Station and he grew up on those stations, but mostly at Roy Hill. As an adult, he himself worked for many years on Roy Hill Station. He is acknowledged as authorised to speak on behalf of the Nyiyaparli and is one of the five persons who have brought the Nyiyaparli claim.
105 In his witness statement tendered as part of the preservation evidence, David Stock referred to the claims of the Wunna Nyiyaparli:
[134] I don't know the name Wunna Nyiyaparli. I have been told by our lawyers that the Coffin family have a claim over Roy Hill Station. But I have never heard of any place or name or people in Nyiyaparli country that is called Wunna or Wunnagnuthagnuthada. I know the Roy Hill area well. I was born and raised there. I have never heard of any place called Wunna at Roy Hill. I believe that if there was a place at Roy Hill, I would know it. If their country was Roy Hill then that name should be there.
[135] I knew William Coffin and his son Ernest. Ernest was the father of Ernest Coffin Jnr and [Ms] Roy and [Ms] Drage. William Coffin was a half-brother to Alec, Gordon and Roy Mackay. Gordon and Roy were the big brothers and Billy Coffin was the nytiy [little one]. … I knew the brothers Gordon and Roy Mackay and I have seen their half-brother Alec Mackay and their half-brother William Coffin. Gordon and Roy Mackay worked on Roy Hill Station as stockmen. I remember seeing William Coffin at Roy Hill when I was young but he moved away. …
[136] The Mackay brothers were all called Wunna. That name Wunna or Wunnanganarra is not the name of a place in Roy Hill or in Nyiyaparli country. I think from what people use to say about them that their family came from around Kariyarra country, near Port Hedland, but I did not know where exactly. Men are often named after a place in the area where their family comes from. I thought Wunna must have been the name of the place where their family came from.
106 Mr Stock said that the mother of Bill Coffin Junior was a Kariyarra woman called "Margaret or Maggie or Maguya". He had also heard from "the old people" that William Coffin Junior's father was a "white fellow". He then said that "if William Coffin had a white father and had a Kariyarra mother, I can't see how he could become Nyiyaparli. That would not be right under Nyiyaparli laws and customs. He would have to have a Nyiyaparli ancestor to be Nyiyaparli."
107 Bonny Tucker said in the statement provided as part of the preservation of evidence hearing:
[47] That Coffin mob are not Nyiyaparli, they are Kariyarra. Roy and Gordon Mackay were living with my aunties Annie and Angelina and my mother. They could speak Nyiyaparli very well because they lived in the camp with Nyiyaparli people. I use to hear them and used to cook for them. My mum told me they were Kariyarra. She used to say "I got a Kariyarra man". She told me that Roy was with her and Angelina was living with Gordon Mackay. My mother said that they came from Munda Station. She said there was a sandy hill near Whim Creek and that was their country. My mother told me Gordon Mackay use to say "good people the Nyiyaparli - looking after me".
[48] I have heard that the Coffin mob have been claiming to be Nyiyaparli and claiming Nyiyaparli country recently but that's not right.
…
[51] Billy Coffin [Junior] was a younger brother to those Mackay men. I remember seeing Billy Coffin [Junior] when he visited his brothers. I was told by my mum that they had the same mum Muguya, but a different dad. … I never heard anyone say [Billy Coffin Junior] had any Nyiyaparli family.
108 Hilda Flann is a Nyiyaparli elder. She deposed that she had never heard from her mother or other old people about the Coffin family being Nyiyaparli or that they could speak for, or have rights, in the Roy Hill area; that she never heard about any place at Roy Hill or anywhere else in Nyiyaparli country called Wunna or Wunnanganna or Wunnagnuthugnuthada. Ms Flann asserts that it is her family which can speak for Roy Hill because her grandmother's father had his "special country" in that area. Ms Flann knew Billy Coffin Junior and confirmed that he could speak some Nyiyaparli. She said however, that Billy Coffin Junior never claimed to be Nyiyaparli and that she did not know him or his children to be Nyiyaparli.
109 Bruce Bung Senior is a Nyiyaparli man. He worked in and around Roy Hill Station in the mid to late 70s. He deposed that he has not heard of any place at Roy Hill called Wunna, Wunnagnuthugnuthada or Wunnanganara and, further, that he had never heard anything about the Coffins being Nyiyaparli until the meetings concerning native title commenced.
110 Mr McCaul spoke to a number of the current generation of Nyiyaparli claimants. They could provide little information about Bill Coffin Senior or his mother Maggie, both of whom had died before any of them were born. However, they did have views about whether Bill Coffin Junior and his descendants were Nyiyaparli. The persons to whom Mr Caul spoke were Gordon Yuline, David Stock, Bill Cadigan, Michael Stream, Bruce Bung, Cheryl Yuline, Lindsay Yuline, Raymond Drage, Reggie Malana. These persons were unanimous in their view that neither Bill Coffin Senior nor Bill Coffin Junior were Nyiyaparli people. Some acknowledged that Bill Coffin Junior and some of his children had shared significant life experiences with Nyiyaparli people and were considered by some to be relations, but none of the Nyiyaparli considered that Bill Coffin Junior and his descendants were Nyiyaparli.
111 None of the persons to whom Mr McCaul spoke knew a place in Nyiyaparli country called "Wunna" or similar. Instead, it seems that the name Wunna may derive from a place in Kariyarra country which is to the northwest of the area claimed by the Nyiyaparli and separated from it by the area claimed by the Palyku People. It is common for family names to derive from the name of a place and to be handed down in successive generations. Several of the Nyiyaparli persons to whom Mr McCaul spoke suggested that the name Wunna is a family name associated with the river known as Wananangara which is said to be in Kariyarra country on Mundaballangana Station. Peter Dershow, a descendant of Bill Coffin Junior but one of those specifically excluded from the Wunna Nyiyaparli claim group, told Mr McCaul that he considered the name Wunna to be a family name which belonged not only to the descendants of Bill Coffin Senior but also to the descendants of his half- brothers Roy, Gordon and Alec Mackay.
112 This evidence was not challenged. I accept it as reliable.
21 His Honour concluded that none of that evidence supported a conclusion that Maggie was a Nyiyaparli person whether by descent or otherwise or that she possessed rights and interests in the land and waters which are the subject of the Wunna Nyiyaparli claim.
22 His Honour also gave attention to the circumstances surrounding the exclusion of the Wunna Nyiyaparli from the Nyiyaparli claim. His Honour relied on some evidence from Ms Wissing and some of the Nyiyaparli witnesses. Ms Wissing had been formerly employed by Yamatji Marlpa Aboriginal Corporation (YMAC), solicitor for the Nyiyaparli. Ms Wissing had been assisting two consultant anthropologists, Mr Vachon and Ms Pannell, who had conducted research into the Nyiyaparli claim for the preparation of a connection report. Mr Vachon provided his findings to the meetings. Mr Vachon informed those in attendance at a meeting in 2009 that research indicated that Bill Coffin Junior had not been Nyiyaparli so his descendants could not claim to be Nyiyaparli through him. Mr Vachon also informed the meetings that it was only descendants of Nyiyaparli ancestors who could hold native title rights in Nyiyaparli country.
23 His Honour then summarised the evidence in response to the claims by the Wunna Nyiyaparli (at [118]-[121]) saying:
118 Bruce Bung Senior said that he had first heard about "the Coffin mob" being Nyiyaparli when native title meetings started happening. He had not heard it before, even though he had been at school with one of the Coffins. Mr Bung explained the circumstances in which the Coffins came to be included in the Nyiyaparli Claim as follows:
[13] Around 2005 or 2006 Gordon Yuline invited the Coffins to be on the Nyiyaparli Claim. Gordon said they made him feel sorry for them and he then invited them on the claim but I had never known them to be Nyiyaparli. I was shocked about this. I didn't know or think they were Nyiyaparli but we were waiting to see what the anthropologist said. They were allowed to be part of the claim until the anthropologist could work out if they had any connection to the area or not.
119 Keith Hall gave a similar account:
[16] I was at the community meeting in Newman back in 2005 when the Coffins were put into a separate category. They were not included in the same list as the Nyiyaparli people. I remember [Ms] Peterson, [Mr] Peterson and Irene Coffin talking at the meeting and wanting Bill Coffin (Jnr) to be put on the claim as a Nyiyaparli ancestor. The old fellows didn't want to tell them that they weren't Nyiyaparli until the research was completed for the claim.
120 David Stock's account was slightly more extensive:
[155] In the early days when Gumala (Aboriginal Corporation) was set up, we wanted to share the money with family and friends so were happy to look after Amy and the other Coffin women like [Ms] Peterson, Irene Coffin. We were happy for them to be part of Gumala because we wanted to look after them and felt sorry for them. It is marlpa way to look after one another. This did not mean that we thought that they were Nyiyaparli. We thought it does not matter if they are Nyiyaparli or not. It is different from talking for country. They have no right to talk for country. It is not their country.
[156] I was at the Nyiyaparli community meeting in June 2005 when we talked about the claim group description for the Nyiyaparli Claim. I said that I was raised up Nyiyaparli and put through Nyiyaparli law and custom and that gave me connection. Jodi Neale from PNTS (Pilbara Native Title Service) asked questions about how the Coffins could be Nyiyaparli. Irene Coffin was talking loudly and getting angry about this. I tried to make them feel better by saying that I knew Gordon and Roy Mackay at Roy Hill Station. I said they spoke Nyiyaparli. I never said that [Mr] Coffin's sisters were Nyiyaparli. I did not believe that they were Nyiyaparli. We didn't want to have a fight with those women or to kick them out. PNTS said they would carry out full research and then if people were Nyiyaparli or had rights in Nyiyaparli country they could be in the claim and if not they should be removed. That was a way of keeping away from trouble at the time.
[157] I did not know that they were claiming to be Nyiyaparli people. The children and grandchildren of Bill Coffin have never been given any traditional rights and interests in Nyiyaparli country.
121 The chronology of amendments set out earlier in these reasons shows that members of the Coffin family were included in the Nyiyaparli Claim from 2001. It seems, however, that particular attention was given to the Coffin family in 2005. The evidence from Bruce Bung Senior, Hilda Flann and David Stock just set out explained how that came about. It was a compromise which the claim group adopted but subject to a condition, namely, the carrying out of further anthropological research. In these circumstances, I do not consider that the inclusion of the descendants of Bill Coffin by the 2005 Amendment should be regarded as a form of admission which now binds the Nyiyaparli Applicant or which should be treated as evidence warranting a different conclusion from that indicated by the other evidence. Instead, the inclusion of the descendants of Bill Coffin was, as I have said, a compromise to resolve a difficult issue which arose at the meetings in 2005. The compromise was reached on the basis that there would be further anthropological research. That further research has confirmed that the descendants of Bill Coffin Senior are not Nyiyaparli.
(emphasis added)
24 Importantly to the present question, his Honour concluded by observing (at [122]):
It is unfortunate that the Wunna Nyiyaparli chose not to participate in an appropriate way in the preparation for, and hearing of, the separate question, Nevertheless, the evidence indicates clearly, in my opinion, that Maggie (the mother of Bill Coffin born circa 1903) was not a Nyiyaparli person, whether by descent or otherwise by possessing rights and interests in the lands and waters comprised in Wunna Nyiyaparli Claim and with a connection to those land and waters in accordance with the traditional laws acknowledged and traditional customs observed by the Nyiyaparli people.
25 The primary judge answered the separate question in the negative.