He also mentioned the barrawar dugout canoe which he had used when his grandfather was alive. He would take Mr Davey from island to island in a barrawar. He used it when growing up to chase turtle and dugong. This was in Jayirri. The barrawar came from the Mungulmuri area and Wotjalum on the other side of the King Sound Peninsula. They came into Bardi and Jawi country through trading. Bardi and Jawi would trade with the mob with 'them mob from other side'. They would give them the pearl shell and boomerangs and shields in return for a barrawar. If he were to go fishing in a canoe on the sea, but close to Mardnan he would have to ask Vincent if he could come on that area. That was his buru. If Vincent wanted to come around in a dinghy off the coast of Gambarnan he would have to do the same. He would have to speak to Mr Davey or his brothers.
598 Mr Davey's statement of substance of his evidence was read into the record in part in relation to Law grounds. There are many Law grounds and special places on the coast. It is possible to go there only when there is a ceremony. He has to look after Law grounds. He doesn't want to see people moving around and walking on them. He tells them to go to follow the road. He warns them. He doesn't want them to come to harm. If another boss isn't looking after a Law ground someone must warn him if there is a problem. He speaks for that country with his elders. He has got to tell the other boss to look after the Law ground. That is his job because he is one of the elders. If Kevin George were to go to a sacred place in Mr Davey's country he could not refuse him. He had to let him in because that was the Law. For any other reason he could say no. However on the Law side he must let the madjamadjin come to him. If a Law boss tried to stop other bosses from coming on to sacred places when they meet up for Law there would be talk about him.
599 Cross-examined by the State, Mr Davey confirmed that he was 16 when he left Sunday Island. He said that the people living there were a mix of Bardi and Jawi people. His grandmother was Jawi. His father's first wife was a Jawi person, but his mother was not. He had learned names for places on Sunday Island when growing up. They were Jawi names. The names of the burus, Mayala and Iwanyi which he referred to when describing the order of seating at ceremonies for the jawul were Jawi names. He acknowledged that Nyulnyul people came to those ceremonies. There were Nyulnyul burus. They would sit in that line too. Nyulnyul would just bring their kids to learn the Law.
600 He described circumstances in which visitors such as Vincent Angus had asked permission or let him know that they wanted to come into his buru at Gambarnan. This had happened at the shop at One Arm People where people met each other. He had made arrangements with Vincent to go into his area for fishing. He would walk on the reefs looking for oysters and fish further out from the reef towards the sea for turtle. He would ask Vincent if he could fish beyond the reef if there was plenty of turtle. He had been hunting at Vincent Angus' buru for dugong and turtle. He used to tell Vincent and an old man who had passed away that he was going to look for dugong around there. They would go hunting around the reef outside the buru. If going to Sunday Island he would ask Khaki Stumpagee. He would let him know that he was coming around there. He had never been 'much' at Kevin George's buru. He has never been asked to leave somebody's buru. There had never been a case in which Nyikina people were asked to get out of a buru. Nyikina never came around there.
601 Jalan and Guljaman were the only burus which he knew where nobody lives or all. The people have died out. The Jalan people were Bardi. The last of them was an old man called Harry and his brother. He thought they were Bardi people because they were talking Bardi and not Jawi. Kevin George would speak for Guljaman if somebody were in trouble there. He is a Mardnan. He can't speak for Jalan. If there were a problem on Jalan he could come in as a madja. That is because he is a bossman in the Law.
602 In his examination-in-chief, Mr Davey said that there was only a slight difference between the Bardi and Jawi languages. It was still possible for Bardi to understand Jawi. Cross-examined by the Commonwealth, he said that the Jawi people belonged to Mermaid Island and Long Island. They spoke the same Jawi language on those islands as people spoke at Sunday Island although not exactly the same. Bardi people could understand that language.
603 Under Bardi Law each person has the country that his father had, but sometimes people go by or take their mother's country. Vincent Angus had taken his mother's country. His father's country was Iwanyi. Mr Davey said it was not up to him to explain the reasons for that, that was a matter for Vincent and his family.
604 Mr Davey was questioned about the lu's between Sunday Island and One Arm Point. He couldn't recall their names. In re-examination he identified the lu Ilarras a lu that goes through the Nida Pass which I take to have been a reference to Meda Passage. The Ardiolon lu goes around Twin Islands at One Arm Point. Ambulanj is a lu passage not far from One Arm Point. Ambulanj and Tilabiyan are also lus. So too Jayirri and Milamil. He described Milamil as a 'big lu'. It passes between Jalan and Jayirri. Gardadin is through Jalan and Iwanyi. Lirruljun is a little passage but a lu around Iwanyi. Jirrawanj is a lu in the Running Water area and Iwanyi. Gurir is a big lu that passes between Sunday Island and East Roe Island. Jurundangun is another lu in the Sunday Island area. Iwanyunu is a 'big, big, big' lu from Sunday Island to Roe Island. The Jawal is just like a whirlpool. It is at East Roe Island.
(xxxii) David Wiggan
605 David Wiggan was born in 1977 in Derby. His bush name is Jadbu. He gave brief evidence on day 20 (28 June 2001) at a site called Gulbun (No 125) otherwise known as Deep Water Point. He is married and has two children. His traditional country is Borgoron (Cygnet Bay) though his father and grandfather. He is familiar with Bawun (Shenton Bluff- site 59). He identified Ardnagun (site 60) on a map and said he is connected to that part of the country through his father who is deceased. His mother was Mayala. Her country was Unggalinyan (Long Island).
606 Mr Wiggan's father taught him traditional Bardi ways as a child. He taught him how to hunt for dugong, turtle, stingrays and fish. It is easier to hunt for turtle during laliny when they are mating. Asked if he knew what barnman meant Mr Wiggan replied:
'It meaning like something has something like you like gets a spirit kind of thing'
He explained 'uluwa' as waterspouts that hang off the edge of reefs, and which appear immediately before or soon after rain. The word 'gararr' is a spirit woman who comes to a man who is by himself and brings him good luck. They live deep in the mangroves on the islands.
607 In cross-examination by the State, Mr Wiggan said that he had been to his mother's country. He did not know of a boundary between Mayala and Jawi country. When pressed by counsel, he said his father told him the boundary is the passage between Sunday Island and Long Island. Asked whether the Mayala people are the same as Jawi, he replied:
'It's the same like Jawi'.
608 In cross-examination by the Commonwealth. Mr Wiggan could not identify how far south his country went. His country goes north to One Arm Point to Jologo beach. At the time of giving his evidence, he lived at One Arm Point. He has lived there most of his life.
(xxxiii) Anna Phillips
609 Anna Phillips (now deceased) gave evidence on day 20 at Gulbun. She was born on 4 April 1935 at Lombadina Djarindjin. Her country was called Gunnyalin (site 124). It is located west of Gulbun. Maljin (Willie Point site 122) was her grandfather's mother's country. Her father Barnangurr was from Gunnyalin country, which includes Gulbun. Her mother Brandy Jacki was from Miligun country. Mrs Phillips's grandfather's name was Mandi.
610 In cross-examination by the State Mrs Phillips said that her husband Casper Phillips was from Barrgarrin country. Her father's country was Gunnyalin in Maljinbur. She had 10 children. Most of them lived with her at Gunnyalin. Asked if her children should take their father's country, she replied:
'Well, I wouldn't know. We try - I try to tell them to come and see people. He don't want to come. It's up to him. I not worrying about him. I'm worrying about myself'.
611 In cross-examination by WAFIC Mrs Phillips confirmed that Lambilambon and Gunnayarrlan are vacant burus between Maljinbur and Gulbun. Her brother was in charge of Gunnayarrlan but he died. Counsel then asked 'there have been no people connected to this place for a long time?' Mrs Phillips replied:
'Yes. Well that's true. We don't - I never been here. This is the first time I'm here now. I'm further with my land over there, see'.
612 Mrs Phillips identified several photographs (X-AD). The first photograph (AP1) showed part of her place in Gunnyalin. It was a large shed built by her son and brother in-law. The next photograph (AP2) showed a smaller house where her daughter and her husband lived. The third photograph (AP3) showed the house that Mrs Phillips lived in with her grandchildren. The next photograph (AP4) was of the ablution block where the shower was. The fifth photograph (AP5) showed members of her family at the entry to Gunnyalin. Their mailbox was in the background. The sixth photograph (AP6) was a picture of the family mailbox, located at the entry to Gunnyalin. The next photograph (AP7) showed Mrs Philips pointing to a fishing spot in Gunnyalin. The eighth photograph (AP8) showed a Manban tree in Gunnyalin country. The red nuts on the top of the tree were called gaarb and are nice to eat. The ninth photograph (AP9) was of a fruit tree called gulay. The tenth photograph (AP10) was of another kind of fruit tree called gabinj. It could be found in the bushland on the way to Gunnyalin. The next photograph (AP11) showed Mrs Phillips pointing to another fruit tree called gulm. Its fruit was called 'dorr dorr'. The twelfth photograph (AP12) showed Mrs Phillips and her grandson on the hill in Gunnyalin, holding a branch from a fruit tree called jalgir. The thirteenth photograph (AP13) showed one of Mrs Phillips's grandsons. He was digging for barnjut. The next photograph (AP14) showed her grandson with barnjut root in his hands. Mrs Phillips said:
'This is the one that poison the fish. You go to any places where you want to use this. This here, you get a waterhole, you rub this on the sand on a rock and you rub it in the sand and you get all that stuff, and you catch them up at the rock. Then you just walk away for a little while. When you come back you see all the fish are drunk.'
613 Mrs Phillips identified some leaves as gulju, which are barnjut leaves. The fifteenth photograph (AP15) showed her and her grandson by Gunnyalin road. Photograph AP16 showed two boys holding spears called 'irrol'. The seventeenth photograph (AP17) showed part of Mrs Phillips's arm pointing to little round fruit called 'gamuluny'. The next photograph (AP18) showed the Gunnyalin reef and a rope in the boat that was used for fishing. In the following photograph (AP19) Mrs Phillips was pointing to Gunnyalin Island, which is part of Gunnyalin country through her father and grandmother. It was barely visible on the horizon because of the high tide. The next photograph (AP20) showed a large oyster from Gunnyalin. Another photograph (AP21) showed a camping ground in Gunnyalin. The next couple of photographs (AP22-24) showed the 'albay' tree and shells from the place in Gunnyalin where the old people used to camp. Photograph numbered AP25 showed an old bark tree. Mrs Phillips said:
'Our grandmothers ... used to cut out a piece and they used to make like a cradle to put their little babies in ... and they used to take them to fishing and all that'
The last photograph (AP26) showed a tall anthill. In the early days pregnant women would eat from the anthill to help with morning sickness.
(xxxiv) Esther Albert
614 Mrs Albert gave evidence on day 20 (28 June 2001) at Gulbun. Her country is Ngililng. It comes from her father. His name was Jared Albert.
(xxxv) Phillip Albert
615 Mr Albert gave evidence on day 20 (28 June 2001) at Gulbun. His country is Ngililng. It comes from his father. His name was Phillip Albert Senior. His nickname was Pinka.
616 Mr Albert identified several photographs. The first (X- AE) showed his Aunty Clare at her block at Jalguny. The block is in Ngililng country. Ngililng is further north than Bardinarr and Malgin. It is in the next bay to the north of Bandinarr. He had visited the outstation recently. It is north of Gulbun. The second photograph (X-AF) showed a shed at Bardinarr. He had been there recently too and said it looked the same as the photograph. The last photograph (X-AG) showed a rocky part of Bandinar on the other side of the point. He identified the word 'jalnguny' as meaning oyster.
617 In cross-examination by the State, Mr Albert said he did not know his grandfather because he had died when his father was young.
(xxxvi) Aggie Ishmael
618 Aggie Ishmael gave evidence during the 'ilma' performances on the evening of day 21 (29 June 2001) on Jologo Beach. She said that the ilma was for Mr F Bin Sali's brother-in-law, Mr Paddy, who was deceased. It represented the birds at Gularrgon country that dive for small fish. The following ilma 'Gulali' was about drifting rain from the west. Ilma 'Rirral' is about a storm cloud floating along the Gularrgon coast. The final ilma called 'Gularrgon' was about water and waves.
(xxxvii) Rosa Tigan
619 Rosa Tigan gave her evidence at the new trial on 1 July 2003 (day 32). Her bush name is Garjabag. The law says that Mrs Tigan belongs to Barlanganan buru. It is her country through her father and grandfather (galu). It is part of the Garrambany area.Garrambany is part of Bardi Jawi country. Mrs Tigan is also connected to her nyami's country, Pender Bay. She lives at Barlanganan because she prefers to live in her galu's country.
620 Mrs Tigan was taken through a number of the paragraphs of her statement evidence. During a ceremony her galu would explain the job of the women to her. When the men return from the bush for Anggwuy they sing a certain song. The boss women hears the song and makes sure that everyone is behaving and tells the women to look over at the men returning from the bush. Then all the grandmothers and aunties dance with leaves to welcome the men. The dance is learnt through observation. Everyone joins in like a party:
'This jawul business, the people get their own boys, each and every one in different areas. When they come out of the bush in Anggwuy in ngurril time, it is the women's duty to get them and sit them down in the jawul place in the special line. That line is called "rirral".'
Members of the jawul's family can help but it is generally the madja's wife. The jawul eats a special meal and seated in the rirral. The madja and his sons then paint the jawul.
621 Only the boss women are permitted to speak at Ululung. During the ceremony the women face away from the men and are not allowed to be near them. The men sing all night and the boss women tell the other women when to dance. Women are not permitted to leave the ceremony. If they need anything they must ask the boss women. Every one continues to dance until dawn. When the ceremony is over the women walk away and are not permitted to look back.
622 Mrs Tigan explained that women may also have a jawul. Their jawul can be a sister or brother's child. If the jawul is a girl, the woman gives support and helps with marriage. When a jawul returns from a hunt, he must give the madja the best cut, which is called 'nimalj'. She said:
'If my jawul asks for something, I must give it to him. You cant hide anything from your jawul. You look after him and he looks after you'.
Women are forbidden to enter the law ground unless there is a ceremony. Mrs Tigan said that she would get sick without a cure if she entered without permission.
623 Mrs Tigan and her husband are building an outstation in her country Barlanganan (No 72), which is part of Garrambany. Strangers are called 'arrang amboriny'. Nyulnyul people are strangers. They are not allowed to live in her country. A stranger may be granted permission to hunt for a day but they must then leave. A white man wanting to build a development on Bardi Jawi country must get permission from the Bardi Jawi bosses.
624 Hunting for turtle or dugong is for men only. Her father and grandfather would go hunting on a galwa. Her grandfather was a Baniol Bard man. When he worked for a farmer named O' Grady, he would use a galwa to hunt around the Galan area. In Djarindjin she has seen her uncle Paddy make galwa at Ngamagun.
625 Mrs Tigan identified the country of the claim area shown to her on a map (X-AAI) as Bardi Jawi country. When asked if they were one people or two, she said: 'They're one people. They are one people'. The Bardi Jawi people speak for Bardi Jawi country. They get together for ceremonies during law time. Both Bardi and Jawi go to all of the ceremonies. This has happened throughout her lifetime. The old madjamadjin taught her the ceremonies. Both Bardi and Jawi people participate in the ceremonies. They makes the people feel good and happy. The same ceremony, which involves dancing and singing, is repeated each Law time. Mrs Tigan learnt how to do the ceremonial dancing at One Arm Point because she participated in anggwuy. There are two stages to Bardi Jawi law. The first is anggwuy and the second is uluung. The uulung stage is for the men only.
626 Her daughter Cecilia and her niece Kathleen accompanied Mrs Tigan to the hearing. In cross-examination Mrs Tigan said that Cecilia is Jawi.
627 In cross-examination by the State, Mrs Tigan said Bardi Jawi Law says she should live in her galu's country. She is a Bard woman and her husband's country is Jawi. His galu's country is Mayala country. She has never been to her husband's island. The Law says that her husband should live in his galu country but Mr Tigan stays with her in her country because she prefers to live in her father's country. She did not know whether women in the old days would live in their husband's country. Bardi people can make decisions for the people on the Jawi islands but generally each people make decisions for their own buru.
628 Mrs Tigan is the boss and speaks for Barlanganan. The Law says she can hunt and fish from the land and build accommodation on the land. There are no Law grounds there. If a person from another buru such as Judurd wanted to come into Barlanganan country to hunt or fish, they must first go and see Mrs Tigan. She said that she would give permission as long as they 'ask in a proper way'. When asked how long that permission would last for she replied:
'Well, just - if they're coming for a day, well, they have to come for a day and have to go back. They wouldn't be able to stay any longer.'
If a visitor was not respecting the country and refused to leave, Mrs Tigan would get help from other bosses.
629 Mrs Tigan identified the Nimidiman country on a map (X-AAJ). A Bardi Jawi person does not need permission to use Nimidiman for hunting and gathering food. It has all kinds of bush food including fruit, yams, lizards and jabarr and gulaman. Strangers, arrang amboriny, must be granted permission by all of the Bardi Jawi people before they enter Nimidiman country. If they are found there without permission they are told to leave. If a stranger refuses to leave, they are forced out.
630 She goes fishing on the beach at Barlanganan. Fish are an important source of food for her family. She also fishes at Lombadina Gararr. When she goes there she lets the people there know. She has never been told not to fish at those other spots. She has never refused to let another Bardi Jawi person fish at Barlanganan.
631 Asked about the case of the deceased buru she said Guljaman is a vacant buru in Bardi Jawi country. All of its people are deceased but their spirits remain. The law says that all Bardi Jawi people are responsible for protecting a vacant buru. Bardi Jawi people from other burus would have to get permission to move to the vacant buru. The granting of permission is the responsibility of the madjamadjin.
Gender restricted evidence from Aboriginal witnesses
632 Evidence restricted to adult males only was taken on a number of occasions at the first trial on 25, 26, 28 and 29 June 2001 and at the second trial on 2 July 2003. I have read the transcript of that evidence. I also requested that the applicants prepare a statement which they would accept as suitable for general publication setting out the effect of the evidence from their perspective. Such a statement was prepared and I have had regard to it in my own overview of that effect of that evidence.
633 The evidence concerned the activities of 3 Creative Beings which were referred to in the statement as 'No 1', 'No 2' and 'No 3' rather than by their Aboriginal names. Each of the beings is associated with a particular ceremony practiced by Bardi and Jawi people. Number 1 is associated with the anggwuy ceremony, Number 2 with the irrganj ceremony and Number 3 with the ululung ceremony. The three ceremonies, like the Beings associated with them, are graduated each being more powerful than its predecessor.
634 Number 1 came from Jawi country and left behind in that country songs and rules associated with the anggwuy ceremony. There was some inconsistency on the question whether the ceremony and the law expressed within it was intended for Jawi people alone or for both Bardi and Jawi people. It may be noted that people from other groups can also participate in anggwuy and other Bardi and Jawi law ceremonies. One such example was the participation of the Goolarabooloo man Joseph Roe in law ceremonies. Such participation however does not confer any right to speak for Bardi and Jawi country. According to the evidence, at the time when Number 1 instituted the anggwuy ceremony Bardi and Jawi people were already living as one.
635 When Number 1 was conducting his ceremony one day, Number 2 came from the north around Uggrang country and took over from Number 1 in Jawi country. Number 2 took the Bardi and Jawi boys to Irrganj which is the name of a sacred place and also of the second ceremony. After the Number 2 ceremony finished, Number 3 took over for the 'serious business'.
636 Number 2 travelled south along the eastern side of the Dampier Peninsula beyond the claim area then returned to Lajada Bay. He gave the people (including Bardi and Jawi) their language and the songs and law associated with the ceremony which he conducted. The evidence gave a description of the ceremony as performed today. Number 2 gave the people the relationship rules and how boys are to sit in the ceremony. He left them boomerangs, shellfish and whatever else could be taken. He also left them fire for cooking. Number 2 did not differentiate the various buru but divided the people into different regions called them Baniol people, Gularrgon people, Ardiol people and so on. The people from different burus within the Gularrgon region were described in the evidence as different 'clans' but nevertheless were said to be 'Gularrgon right through as one in law'.
637 Evidence was given about how the men were seated in a particular order representing 7 different regions each of which replicated the particular seating arrangement during law ceremonies. The first division in the seating arrangement represents Myala, that is Unggaliyan, and the entire north-east region. The second division represents Iwany. The third division, Inalabul, represents the islands between Sunday Island and One Arm Point. The fourth division represents Ardiol which is the country from One Arm Point to Gambarnan. The fifth division, Gularrgon, covers Swan Point to Ngamagun. The sixth division represents Olonggon covering the country from Ngamagun to Pender Bay or Gurrbalgun country. The seventh division represents Baniol which covers Mardnan to ?? Bay.
638 Evidence was given to the effect the special seating arrangement during the ululung ceremony demonstrates that Olonggon in the south-western Baniol and the south-east operate like a gate which, when shut, ties the Bardi and Jawi together into one tribe.
639 Evidence was also given about how each jawul sits in the regional buru of his madja.
640 Number 3 gave the Bardi and Jawi the ululung ceremony. He came from Swan Point on the mainland and travelled south along the western coast to Wapuna in Karajarri country. The songs he sang were in Bardi and Jawi language but with special variations from country to country. He returned to Ngamagun where he remains today. There was conflicting evidence as to whether Number 3 also travelled to the islands where he left sacred trees and sacred sites, songs and sea currents. Number 3 created the sun, the moon and the stars and particular sacred objects. He buried some of these objects at Ngamagun and others he buried at a secret place in the sea. Number 3 also made the language, the songs and the sacred grounds, special trees for use in ceremony, drinking water umban, honey, kangaroos, birds, emus, wild turkey, goanna and trees to make spears, boomerangs and shields.
641 There was evidence about the way in which the ululung ceremony is performed, about how the initiate learns the laws for the stars, the islands, the sea currents, thunder and lightning and the animals and about how, under Bardi and Jawi law, a boy cannot look for a girlfriend or marry until he has been through ceremony and reached the point where he is painted with red ochre.
Historical evidence
642 The applicants relied upon historical evidence provided by Dr Fiona Skyring who prepared two reports received in evidence. The first was dated 20 October 2000 (X-AAT). The second was dated August 2001 (X-AU).
643 Recorded observations of Aboriginal people in the claim area go back to the mid seventeenth century. According to Dr Skyring's first report, secondary accounts of the voyages of the Dutch explorer Abel Tasman indicated that in 1644 he landed at Roebuck and Carnot Bays on the coast of the Dampier Peninsula and observed Aboriginal people there.
644 William Dampier, the English maritime explorer, sailed the vessels Cygnet and Roebuck from the Philippines to England in 1687 and in the course of that voyage landed on the north west shore of King Sound at Cygnet Bay. He recorded observations of the Aborigines of the area including his often quoted description of them as 'the miserablest people in the world'. He recorded that as they ran away from his anchored ship they called out the word 'gurri'. This was said by the applicants' linguist expert, Dr Metcalfe, to be consistent with the Bardi word 'ngaari' which refers to a malevolent spirit. The people whom Dampier saw at Cygnet Bay lived in groups of 20 to 30. They had no houses and, according to Dampier, no boats and no canoes. Dr Skyring however noted that later European explorers recorded the Aborigines use of rafts made from tree trunks.
645 Dampier observed the use of stone fish traps and that, at low tide, the people would seek cockles, mussels and periwinkles. Whether the catch was small or large:
'... everyone has his part, the young and tender as well as the old and feeble.'
He saw little in the way of weaponry but some of the people had wooden swords and others a kind of lance. He described the sword as 'a piece of Wood shaped somewhat like a Cutlass'. The lance was 'a long straight Pole, sharp at one end and hardened afterwards by heat'. Dampier and his crew remained ashore at Cygnet Bay for about two months. The first landing was accidental due to his taking a route home from the Philippines which was south of the regular route and being forced by winds even further south.
646 In 1801 Nicholas Baudin led a French scientific expedition to survey the coastline of 'New Holland'. His ships first made landfall at Cape Leeuwin on the south-west coast of Western Australia in May 1801 and then travelled north. When they arrived at the Dampier Peninsula about 50 kilometres north of the site of present day Broome, Baudin recorded in his journal:
'Throughout the afternoon we saw a great number of fires all along the coast. But some of them were so large, that it seemed to us that they could not be where the natives were. They were probably conflagrations in some parts of the forest, for their (sic) was so much smoke that it blotted out the sky.'
He returned in 1803 with another schooner and made a further survey of the north west coast. However he made few landings. His main contribution to the knowledge of the coast was in its cartography.
647 In 1821 Captain Phillip King sailed the Bathurst along the coast of Australia from the Torres Strait to Cape Latouche Treville, south of Roebuck Bay. On 19 August 1821, he sighted Cape Leveque. As the vessel proceeded along the western coast of the Dampier Peninsula, no Aborigines were seen on any of the islands however there were many 'large smokes' on the horizon behind Cygnet Bay. Of the western coast of the Dampier Peninsula from Carnat Bay to Point Coulomb, he said:
'The smokes of fires have been noticed at intervals every four or five miles along the shore, from which it may be inferred that this part of the coast is very populous.'
648 Dr Skyring concluded from the European maritime explorers' accounts that Aboriginal people occupied the claim area before 1829. They exploited marine resources by the construction of tidal fish traps. They collected shellfish at low tide. They constructed wells to get access to fresh water. Dampier used such wells for his own resupply. According to Dampier's record, the Aboriginal people at Cygnet Bay did not welcome his intrusions and on a number of occasions threatened the Europeans with spears. Abel Tasman had also received a hostile reception from Aboriginal men armed with spears. Dampier acknowledged that he and his men intruded on Aboriginal land and that by going ashore they had deterred the people from using some of their fishing places.
649 Dr Skyring sought to fit Dampier's interaction with the indigenous people, including his own attempts to recruit their labour, into later patterns of exploitative European-Aboriginal contact. There is considerable space devoted, in her later report, to the history of exploitation of Aboriginal people especially by the pearling industry in the Kimberleys in the late 19th century. There is a significant difference of perspective between her account of that history and the preliminary history provided by the State's witness, Dr Neville Green. It is not the function of the Court in this case, to make normative judgments about such matters. That is not to say that the impact of colonising activities is not relevant to the continuity of Aboriginal connection with the country in the claim area.
650 Dr Skyring's first report outlined the formal history of the colonisation of Western Australia. In April 1829 Captain Fremantle raised a British flag at the Swan River and claimed for the British Crown the remainder of the continent not included in the Colony of New South Wales. On 18 June 1829, James Stirling, the first Governor of the new colony, read a proclamation declaring the western part of the continent to be British territory and its inhabitants and colonists subject to the laws of England.
651 The proclamation made pursuant to Geo IVc 22, The Swan River Colony Act 1829, was in the following terms:
'Whereas His Majesty having been pleased to command that a settlement should forthwith be formed within the territory of "Western Australia", and whereas with a view of effecting that object an expedition having been prepared and sent forth, and in accordance with His Majesty's pleasure the direction of the expedition and the Government of the proposed settlement having been confided to me, and whereas in pursuance of the premises possession of the territory having been taken, I do hereby make the same known to all persons whom it may concern, willing, and requesting them to duly regulate their conduct with reference to His Majesty's authority, represented in me, as good and loyal subjects ought to do, and to obey all such legal commands and regulations, as I may from time to time see fit to enact, as they shall answer the contrary to their peril.'
For the purposes of recognition of native title the annexation of the colony may be taken to have been effected as at the date of the proclamation.
652 Dr Skyring's report considered the history of the presence of Aboriginal people on and around the claim at the time of the establishment of the colony and/or the time of contact and their activities and response to the coming of non-indigenous people.
653 When the colony was established in 1829 there were no European settlements in the Kimberley. Phillip King had surveyed the north-west coast in 1829 but it was not visited again by Europeans until the late 1830s. Commander J. Lort Stokes, travelling on the HMS Beagle, was commissioned in 1837 by the Admiralty to explore parts of the north-west coast of 'New Holland' and also to survey the Bass and Torres Straits. At that time, as Stokes wrote, the north-west was the least known of the Australian shores.
654 Stokes' account of his explorations included observations of the coast north of Roebuck Bay along the Dampier Peninsula coastline in January 1838. The coast seemed particularly populated between Roebuck and Beagle Bays. The smoke from native fires was constantly to be seen. In all cases these signs of human existence were confined to the neighbourhood of the sea - Stokes JL, Discoveries in Australia: with an account of the Coasts and Rivers explored and surveyed during the voyage of HMS Beagle in the years 1837-38-39-40-41-42-43 Vol 1 (1846) Facsimile edition 1969 pp 1-2.
655 A party from Stokes' expedition went ashore at Point Swan to look for fresh water. As they approached the shore they were warned of the presence of Aboriginal people by a white ensign displayed on the ship. They saw the shore 'thronged with savages'. They were brandishing spears and whirling arms round and round with 'windmill-like velocity'. The party pulled to shore but did not venture inland for water. The next day they returned with more men and tools for digging a well. Again there was a strong force of Aboriginal men who watched them from a distance. On the third day when they were digging a well another group approached them. To warn them of the Europeans' technological superiority, a rocket was fired from the ship. The Aborigines did not appear again for a few days. Subsequently, a small group of them came down on the beach. They were friendly in their manner. They were given presents of beads but received them 'with an indifference almost amounting to apathy'. In early February 1838, Stokes went ashore again near Point Swan. He travelled inland for about 7 miles. He saw the effects of many fires.
656 As the Beagle journeyed south through islands east of Point Swan Stokes observed a 'native raft' which he described as follows:
'It was formed of nine poles pegged together, and measured ten feet in length by four in breadth... All the pines were of the palm tree, a wood so light, that one man could carry the whole affair with great ease. By it there was a very crude double-bladed paddle.'
657 At Cygnet Bay Stokes and his crew found a skeleton whose bones were packed in a cylindrical pattern and shrouded in bark. Some Aboriginal men arrived and offered no resistance when he and his party removed the bones which became part of a collection at the museum of the Royal College of Surgeons. Stokes observed that the people he saw on the northern Dampier Peninsula each had an upper front tooth missing and that some of the men were circumcised. The people 'resembled the natives previously seen at Point Swan'.
658 Dr Skyring next referred to an account by Frederick Panter of an expedition to search for pastoral lands along the Glenelg River in the Kimberley in 1864. Panter sailed along the west coast of the Dampier Peninsula in the schooner, New Perseverance. The vessel anchored close to Cape Borda on the northern part of what he called Dampier's Land. Grass could be seen growing similar to that at Camden Harbour. Several times between Cape Borda and Roebuck Bay they sailed close into shore. The 'natives' were plentiful. Some of them came down to the beach.
659 Dr Skyring described the interaction between the pearling industry and Aboriginal people particularly in the early 1880s. The northward migration of pearlers from Cossack, near Roebourne, to Beagle Bay had a profound impact on the Aboriginal population. She referred to the historical record to show that many Aboriginal divers were kidnapped and forced to work on pearling luggers for rations of water and flour. The history which she recounts is one of exploitation, including kidnapping and slavery.
660 Until pearlers moved their operations into the area in the early 1880s the extent of contact between the Europeans and Aboriginal people in the claim area had been limited and sporadic. The impact of such contact as there was was negligible. There were no European settlements on the peninsula. Proposals to establish a government-funded settlement at Beagle Bay were rejected as a waste of money. Until the 1880s Aboriginal people in the claim area lived relatively unaffected by the expansion of European settlement in the south and along the north-west coast.
661 A 'Preliminary History Report' was prepared by Dr Neville Green on 15 November 2000 and tendered by the State (X-AAC) at the first trial. As described in its introduction, Dr Green's preliminary report was intended to provide a general history of the claim area and a brief history of the Aboriginal experiences of the people within the claim area. Particular attention was given to the role of Christian missions, the influence these had as 'attractors', and the impact they may have had on traditional Aboriginal beliefs in the region. He did not examine pastoral history in any detail and did not go much beyond 1970. As Dr Green pointed out at the beginning of the report he had not researched all the primary and secondary sources and had made no real analysis of anthropological sources relating to Aboriginal people of the region.
662 Dr Green referred first to the accounts of early coastal exploration of northern Australian by Dampier in 1688, King in 1822 and Stokes in 1837. He cited a passage from King's account of his observations while steering between two rocky islands off Cape Leveque on 9 February 1822:
'On one of the sandy beaches at the back of the bay near Park Hillock, so called from its green appearances and being studded with trees, eight or ten natives were observed walking along the beach close to the low-water mark, probably in search of shell fish; some of them were children, and perhaps the others were women, except two or three who carried spears; a dog was trotting along the beach behind them.'
663 Allan Cunningham, a botanist travelling with King, landed near the northern tip of Goodenough Bay. King reported his observations:
'The traces of natives, dogs, turtle bones, and broken shells were found strewed about; and several fireplaces were noticed that had very recently been used; a fresh water stream was running down the rocks into the sea, and at the back of the beach was a hollow, full of sweet water. Near the fireplaces Mr Roe picked up some stones, that had been chipped probably in the manufacture of their hatchets.'
Another member of King's party, Baskerville, later reported:
'The foot-marks of men and boys were evident on the sand below the high water mark, and the remains of fire-places, and where the natives have been manufacturing spears, were of recent date ... at one of the fire-places, they found a very large voluta, that seemed to have served the purpose of a water-vessel; it was fifteen inches long and ten inches in diameter.'
664 Under the heading 'Land exploration' Dr Green cited to Alexander Forrest's expedition of 1879 from Beagle Bay. At that time there were pearling luggers in the Bay. Forrest chartered a small boat from the pearling masters to take him to the Lacepede Islands where he obtained some provisions from a Mr Wynn. Dr Green inferred that Europeans were in occupation both at Beagle Bay and nearby Lacepedes in 1879. In a report dated 19 April 1879, Forrest said that the expedition had met large numbers of Aborigines but had not been molested. About 50 or so would turn out daily at the Beagle Bay camp. They appeared to be very fond of flour and tobacco. Some of the Aborigines could speak some English, suggesting they had contact with the crew of the pearling luggers.
665 Before Forrest departed for Fitzroy River he and his party were invited to a corroboree given in their honour. During their stay at Beagle Bay the Aborigines kept them supplied with fish and crabs which they traded for goods. About 15 of the Beagle Bay Aboriginal men travelled with Forrest and his party for several days but it appeared that when they reached the limits of their traditional territory or legitimate access they disengaged themselves from the explorers.
666 Dr Green described the history of European-Aboriginal contact post-colonisation. It began with the pearling industry. His account of contact with that industry contrasted with the account given by Dr Skyring in her second report to which reference will be made below. He said that the employment of Aborigines in the pearling industry during the 19th century 'was strictly regulated by legislation'. He referred to the Pearl Shell Fisheries Regulation Acts of 1871 through to 1887. Aboriginal males engaged on pearling luggers had to be employed under signed and witnessed work agreements. These agreements were policed by the Inspector of Fisheries. The enforcement of the Acts was otherwise not discussed. Interaction with pearling removed people from their traditional homelands. Although pearling masters were legally bound to return divers to their home territory at the end of each season this did not always occur. Some who went diving died because of illness, shark attacks or misadventure. A cyclone which in 1887 destroyed 5 schooners and 30 luggers with the loss of between 200 and 300 divers and crew.
667 Before missionaries came to the Peninsula in 1884, Aboriginal people had established work and trade relationships with the pearling masters. As employees they would have been separated from their families, taken considerable distances from their home localities, brought into contact with other groups of Aborigines and exposed to Europeans for extended periods. The position changed when the Pearl Shell Fisheries Act was amended so that women and boys could not be employed on board pearling luggers although they continued to be used on the beach in shelling activities. Technology brought about further change with the development of diving apparatus for deeper water pearling. Few Aboriginal men were employed on the luggers. Asian crews were used more frequently. There were however ongoing concerns that lugger crews were enticing Aboriginal women and boys and girls into sexual relationships.
668 In the 1860s pastoral companies began operating in the southern Kimberley in the vicinity of the present day town of Broome. Alexander Forrest's 1879 exploration was followed by major pastoral activity in the Kimberley. In 1883 Broome and Derby were proclaimed as towns. The development of the industry coincided with the discovery in 1884 of payable gold in the Halls Creek district. This attracted thousands of prospectors to the Kimberley and led to the proclamation of the town of Wyndham in 1886.
669 Dr Green noted that reports from police patrols in the area north of Broome contained occasional references to pastoral stations visited and Aborigines seen at those stations. However the names of the employees were rarely recorded. Weedong Station operated by Messrs Male and Bell was established in about 1906. According to EG Gibson in a 1951 thesis Henry James O'Grady leased an area of Cygnet Bay named 'Mandarna Station' in 1909. O'Grady's occupation was confirmed in the Broome District police records. There is some evidence that Sydney Hadley who was the missionary to Sunday Island claimed that he and Harry Hunter in partnership had been leaseholders of all the land 'hereabouts' since 1884. The extent of these pastoral leases was not defined.
670 In February 1908 an Aborigines Inspector, Isdell, recorded 5 pastoral stations along the coast between Broome and Cygnet Bay. Three of these collectively employed on a permanent basis 18 males, 19 females and 6 boys under the age of 16. They also supported a further 13 people as 'indigents'. However Dr Green observed that by about 1930 most of the land that may have formed earlier pastoral leases had become mission grants or reserve land for the use and benefit of Aborigines.
671 Dr Green also discussed police-Aboriginal relationships. The police files for west, central and east Kimberley document a violent period in Australian history which began soon after pastoralists and prospectors moved into the Kimberleys in the 1880s. A massacre of Aborigines near Cygnet Bay is referred to by Mary Durack, 'The Rock and the Sand', Constable London 1969 at 25-26. Dr Green suggested that this was most likely to have been the shooting of a number of Aborigines following the killing on 29 May 1985 of Captain Rickinson, Master of the schooner Pearl and 'Chan' Shenton. Later police reports indicated that at least 7 Aborigines were killed by police in incidents at various locations between Swan Point and on offshore islands in the course of patrol from 4 June to 5 July 1885. Gibson in his 1951 thesis wrote that one of his informants, Paddy, a Jawi man then aged 65, had 'vivid memories of the occasions when the white punitive expedition shot many of his tribe in cold blood'.
672 Police records for the region allow researchers to identify coastal campsites and native wells and provided some indication of the number of Aborigines in the region. Dr Green indicated that police files he had seen did not contain any detailed information about traditional Aboriginal lifestyles.
673 A police patrol report from the 1880s referred to the murder of an Aboriginal man called Waligun or Cockagin. His body was found wrapped in paperbark and placed in a tree. Another report in 1898 by PC Zum Feld referred to a schooner the 'Willie' which had an all Aboriginal crew. Complaints of mistreatment of Aboriginal people, including rape and the supply of alcohol, were investigated and mentioned in his report. There was a report by PC Percy in 1899 of Aboriginal workers absconding from pearling luggers. The same report indicated that there had been a meeting of Sunday Island and Swan Point Aborigines at Swan Point. In 1903 two Aboriginal police assistants absconded at Beagle Bay. Constable Napier reported that they had returned to their own country at Gilgully Creek. One of the assistants named 'Gunner' had been too frightened to stay in the Beagle Bay area any longer believing that Beagle Bay Aborigines would bewitch or sing him to death.
674 There was ongoing concern about contact between Aborigines and pearling lugger crews involving both sexual liaisons and the supply of alcohol. Dr Green observed that when writing patrol reports constables did not always distinguish between Beagle Bay and Beagle Bay mission. It was therefore not clear whether the people referred to in those reports were under the 'control' of the mission or camping at the Bay. He regarded the distinction as important when attempting to determine at what point in history there was some identifiable shift from independent hunting and gathering towards a mission dependence. This observation seemed to embody an assumption that there was such a shift, an assumption challenged by Dr Skyring in her second report.
675 In February 1908 the Aborigines Inspector Isdell estimated that there were 400 Aborigines between Broome and Swan Point with the area from Cygnet Bay to Derby being occupied by about 80 Aborigines. However Dr Green points out that Isdell's estimates are not supported by the camp to camp police patrols which suggest a population of closer to 300 people overall.
676 Dr Green outlined the contact history of Aborigines and the Christian missions in and near the claim area. A mission was started at Disaster Bay in March 1884 by Father Duncan McNab. Another mission was established at Beagle Bay in 1890 by Bishop Gibney with two French Trappist monks whom he brought there. Aborigines Inspector Charles Straker spent three days at the Beagle Bay mission in August 1893. He wrote an 8 page report to the Secretary of the Aboriginal Protection Board in which he described the Aborigines, the population and the spiritual teaching undertaken by the missionaries. At that time the mission had about 500 sheep, 90 cattle and 2 horses. Six Aboriginal men had signed 12 month work agreements and handled the stock and any other tasks required by the mission. Nine acres had been cleared for gardens. The spiritual program of the mission as explained to Straker was to 'civilise and Christianise the natives'. Subsequently Beagle Bay became a receiving place for part Aboriginal children removed from their mothers pursuant to the Aborigines Act 1905.
677 In 1906 a mission station was established at Cygnet Bay under the supervision of Father Nicholas Emo. It received 9 pence per day, per person, from the government for each of the 20 to 25 Aborigines at the mission. The mission was on a 10 acre lease about 250 yards from the beach. The depot buildings were only about 200 yards from a freshwater well used by pearling luggers. Inspector Isdell, who visited the mission in 1908, observed 30 luggers and 2 schooners with 200 coloured men and 12 whites laid up from November to March less than 2 miles by water from the mission.
678 In 1908 Father Nicholas (as he is called in Dr Green's reports) intended closing the Cygnet Bay mission to join a Catholic expedition to open a new mission on the Drysdale River, now Kalumburu. Some of the Cygnet Bay people did not want to go to Beagle Bay. Isdell wrote that '... they are of a different tribe and old enemies'. He intended to make an arrangement with Mr Harry Hunter at Boolgin, Cape Leveque to feed the rest. There were already about 100 Aborigines at Boolgin, many in the employ of Harry Hunter.
679 In 1892 the land which would comprise the Lombadina mission had been purchased by Bishop Gibney for 500 pounds. It covered 100,000 acres. The previous owners were Messrs. Hunter and Hadley. The Disaster Bay mission was abandoned in 1905 and the Puertollano family transferred to a property named Lumbingun near Lombadina which they operated by an arrangement with the church. Father Nicholas assumed control of the Lombadina mission in 1910 after returning from Kalumburu and continued in charge of it until his death in March 1915. The property then passed into the control of Thomas Puertollano. In 1916 it was purchased by a Broome resident for his brother, Father John Creagh, Pro Vicar Apostolic of the Kimberley District. The land was thereby returned to the control of the Catholic Church. When Father Nicholas left Cygnet Bay, Harry Hunter was appointed a protector of Aborigines and undertook to provide rations at Boolgin and at Disaster Bay in King Sound. In 1910 the ration depot was closed and stored rations were removed by police to Lombadina where the Catholic Church was intending to establish a new mission. When Hunter lost his contract, elderly and injured people at Boolgin transferred to Lombadina a few kilometres away.
680 The Sunday Island mission was the first protestant mission to be established in the west Kimberley. Sydney Hadley who founded it in 1899 had been engaged in pearling activities on the Kimberley coast since 1877. He kept the mission viable for the next 25 years by encouraging the islanders to collect trochus shell for export to France where it was cut and polished into buttons. EG Gibson who wrote his Masters thesis on the history of the island believed that it may previously have been Jawi territory. The Jawi population had diminished because of the punitive expeditions and the capture of the island's Jawi women by pearling crew. Remaining Jawis were further reduced in numbers by introduced disease. As the intermarriage of Jawi and Bardi became common with the predominant language being Bardi according to Gibson 'there was ultimately no other possible result than a fusion of the two elements with the infiltrated Bardi predominating'. According to Dr Green the available documents make no reference to Hadley attempting to destroy the traditional culture or to replace it with Christian beliefs.
681 An independent report on Sunday Island was compiled by the Derby Resident, Magistrate Dr Wace in 1904. The population at that time was between 80 and 90 persons. Some of them were camped on the other side of the island from the mission. Dr Wace reported that Aborigines living there were living 'more under their natural conditions than at any pastoral station that I have seen on the mainland'. He observed that the men would hunt fish, get dugong and come and go as they wanted to. Hadley wanted the Protector of Aborigines to extend the boundaries of the mission to include nearby islands so there would be authority to exclude pearling boats. He was supported in this by Dr Wace. Dr Green's report does not indicate that the boundaries of the mission reserve were extended. The mission's total income for 1907 was just over 282 pounds. 111 pounds was derived from the sale of tortoise shell, pearl shell and freight cartage.
682 On a visit to Sunday Island mission in May 1908 Inspector Isdell reported:
'There are really no natives belonging to Sunday or other islands, they all belong to the mainland, and they use the islands for hunting and fishing.'
In another report in 1908 he observed that the Aborigines would frequently travel from island to island in their catamarans or native canoes. The mission population was 110 of which 60 to 70 were fit for labour.
683 In 1910 Mr and Mrs Smith of the United Aborigines Mission (UAM) took over the management of the mission while Hadley was away in England. In 1911 Father Droste recorded a visit to Sunday Island and observed:
'The missionary and his charges lived on fishing and sale of mother-of-pearl and turtle shells. The white man had lived with the islanders for 10 years, making their customs his own. Though he taught them to pray and sing, he otherwise placed no great demands on them of Christian faith and morals.'
The mission was transferred to the UAM on 30 December 1922. Dr Green observed that the aging Hadley exerted very little influence upon the Aboriginal population on Sunday Island. He did not interfere with traditional religion, culture and custom. His own behaviour was modified to accommodate local conditions.
684 The UAM which included adherents of the Baptist, Methodist and Church of Christ denominations, brought what Dr Green described as 'some semblance of order' and a radical shift in attitude which was opposed to many traditional Aboriginal customs. The missionaries of this era were committed to the saving of souls rather than the development of the community. This included the modification of certain Aboriginal customs regarded as 'the work of the devil'. The United Aborigines Mission replaced traditional platform burials with underground burials. It opposed the traditional tooth avulsion. It disapproved of polygamy.
685 Three years later the UAM committee proposed closing the mission. In 1926 the Chief Protector of Aborigines, Mr Neville, suggested that the Sunday Island mission be transferred to the mainland. He commented on the poor economy offered by the island and proposed the transfer of its population to the north-east shore of King Sound. This was held in abeyance until 1932. The Sunday Island population was eventually transferred to a mainland location in 1935. A UAM request to retain access to Sunday Island as a depot for shellfishing purposes was approved.
686 Within a year the mainland mission experienced serious problems. Several deaths there triggered an exodus of people back to Sunday Island. The mainland mission known as Wotjulum was thought by the UAM missionaries to be the local name for the mission site. It was incorrectly named. By 1939 the Aboriginal population had left Wotjulum and it was eventually closed down. The government subsidy for Sunday Island ended and arrangements were made for the transfer of its Aboriginal population to Lombadina.
687 In the absence of missionaries the Sunday Island community managed its own affairs. Wiggan took charge of men's meetings. Katie Wiggan and Maggie led women's meetings and Tigon (Tigan) looked after day and Sunday schools. The missionaries returned in 1944. A report on Sunday Island in May 1945 by Inspector L O'Neill referred to a poverty stricken atmosphere about the mission which would be difficult if not impossible to dispel without a good deal of outside financial assistance. The only useful purpose of the mission was the distribution of rations to the Aborigines and a certain amount of schooling for the children and the issue of medicine for the sick, apart from the religious teaching of the missionaries.
688 Preston Walker, who worked as the missionary on Sunday Island in 1945 wrote, in a prayer letter to the UAM supporters in 1947, that despite 25 years of evangelical testimony there were still corroborees, outbursts of rage, fights and various taboos such as 'men's country' which he said occupied half of the only decent piece of country on the island and which was barred to all women and children. Ruth Allen in a letter from Sunday Island in 1950 wrote:
'These old men are the leaders of the tribe, and it is very hard to touch them. They have heard the Gospel many times, and still prefer 'darkness rather than light'.'
UAM missionaries supervised expeditions on the lugger 'Balfour' to Brue Reef where trochus shell was collected at low tide. In 1949 this was the mission's only source of income. However as plastic replaced shell in the manufacture of buttons trochus shell lost its value and the mission became increasingly dependent on government rants and donations.
689 Dean Brown, a master pearler, tried to establish a pearl shell industry in the area in 1957 and employed a number of Sunday Island people. The mission offered some employment but made no systematic effort to organise work. The mission population was 82 adults and 58 children.
690 Some families were persuaded to move to Derby as living conditions on the island deteriorated. The population peaked at 140 in 1954 and dropped to 81 in 1961. In 1962 the Sunday Island mission was closed and children of school age were placed in a hostel at Derby and enrolled at the local junior high school. Parents who wanted to be near their children also left Sunday Island and moved to Derby. Only traditionalists and pensioners were left until 1964 when the mission refused to transport supplies and the remaining people were evacuated to Derby.
691 In 1969 two elders, Bill Ah Choo and Tommy Thomas, took their families back to Sunday Island with the support of a former missionary, David Drysdale. However they realised it was no longer practical to live on the island and a vanguard of Bardi set up camp on the mainland at One Arm Point. In 1975 a housing program was commenced and a government school had a teacher taking classes in a bough shed on the beach. According to Dr Green many of the descendants of the Sunday Island Bardi today live at One Arm Point and at Lombadina Djarindjin in the south-west.
692 Dr Skyring prepared a Further History Report (X-AU) dated August 2001. She described the scope of the report at 5 thus:
'In this supplementary report, I address the history of people in the Bardi and Jawi claim area from approximately the 1880s to the 1980s. This covers the period from the early and violent contact between Aboriginal people and the predominantly British-Australian pearling masters, to the era after 1969 when the Bardi and Jawi applicants returned to the areas they identified as their country and established the communities which exist to this day.'
693 In dealing with the history of pearling in the claim area she contested Dr Green's interpretation of Aboriginal involvement in the industry. Although she did not say so in as many words, Dr Skyring effectively cast Dr Green's account of Aboriginal interaction with the pearling industry as an anodyne narrative which did not pay sufficient regard to its violent and exploitative character. In the early years of the pearling industry on the Dampier Peninsula and in the later 19th century, according to Dr Skyring, Aboriginal divers and crew were not employees in the accepted sense of the word. They were often kidnapped and forced to work under dangerous conditions. Some were killed in the process. The report of the Royal Commission on the Condition of Natives by Commissioner Roth in 1905 found that the contract system by which Aboriginal workers were 'signed' or indentured to pastoralists and pearlers for a particular time period was widely abused. The regulations designed to protect mostly illiterate Aboriginal workers in the north-west who had no or little fluency in English were ineffectual. Commissioner Roth said there was 'nothing to prevent the greatest scoundrel unhung, European or Asiatic, putting under contract any black he pleases'. Dr Skyring contested Dr Green's opinion that the pearling industry was 'strictly regulated by legislation'. Protective aspects of the legislation were rarely enforced. Until new diving technology brought changes to the industry in the late 1880s pearling on the north-west coast of Western Australia was a virtually unchecked system of forced labour.
694 Dr Skyring went into considerable detail to support her thesis. She referred in particular to police reports. The detail of her references in this respect gave substantial support to her primary contention. However, in the end the Court is not assisted by the details of that history or the allocation of historical blame in deciding the issues which it has to determine.
695 Dr Skyring considered the history of missions and ration depots. She referred to the apparent assumption in Dr Green's report that at some point in history there was an identifiable shift from independent hunting and gathering towards a mission dependence. She argued that such a shift was not supported by information on the historical record. For most of the twentieth century mission stations and ration depots in the claim area relied upon Aboriginal labour and the sale of sea resources traditionally gathered or hunted by Aboriginal people. This was particularly so on Sunday Island while Sydney Hadley was the missionary there. The food hunted and gathered by Aboriginal people in the Bardi and Jawi claim area was the basis of their diet and for some the only source of food. The Aborigines Department subsidised the institutions to a certain extent by paying for rations of very basic food, clothing and blankets but that none would have survived were it not for the sea resources and labour contributed by the Aboriginal people who had regular or intermittent contact with the missions.
696 Sydney Hadley was prepared to assist in taking people from Sunday Island to nearby islands. He accepted their continued reliance on bush food and sea resources. In 1902 he took some of the school children to nearby Roe Island which was 'abundant in native fruit, yams, dugong and turtle'. Some of the school boys at Sunday Island wrote of how 10 men went out in a dinghy and caught a turtle and a dugong. In 1907 Hadley took some of the school children to Lascepede Islands where they caught a large green turtle which they brought back 'with great delight to their parents and countrymen'. Mr Hadley gave evidence to the 1904 Roth Royal Commission about the food which he provided for Aborigines on Sunday Island. Dr Skyring observed that the food which was provided as payment for labour, would not have amounted to an adequate diet. It was reasonable to assume that the people relied on sea resources and bush food for essential proteins and vitamins.
697 In 1904 the resident magistrate of Derby Richard Wace visited Sunday Island. He opposed plans to send a white married couple to assist at the mission. It was no place for a white lady. He said:
'It is not uncommon to see a boy plastered with blood from head to heals (sic), the subject of tribal rites - men & women all but for loin cloths unclad often.'
He described the Aborigines at Sunday Island as 'living more under their natural conditions than at any pastoral station that I have seen on the mainland'.
698 In 1911 trochus was the main source of income for the island. It was sought by other missions or stations in the claim area. On Dr Skyring's interpretation a pattern of dependence on Aboriginal labour appeared from the records of the Sunday Island mission and other white settlements in the area.
699 In 1922 Hadley left Sunday Island because of ill health. It was then taken over by the UAM. Dr Skyring agreed with Dr Green that the UAM was not as tolerant of Aboriginal culture as Mr Hadley had been. However, new missionaries did not disrupt the routine developed under Hadley. The mission continued to rely upon trochus and pearl shells collected by the Aboriginal people as its source of income.
700 1935 saw the relocation of the mission to Wotjulum on the mainland near Yampi Sound. Aboriginal people from Sunday Island who were relocated to Wotjulum returned to Sunday Island from Wotjulum which was abandoned in 1938.
701 In 1939 when Departmental Inspector McBeath reported on the operation of the Sunday Island mission he wrote that Aboriginal people traded the trochus for food at the mission store and that some of them had boats. Fishing and gathering from the surrounding reefs was their main source of food. There was not enough food to go around when the fish catch was poor and the people were poorly clothed.
702 Dr Skyring's report suggested that without the work of Aboriginal people and their gathering and hunting of sea resources for trade and for food missions and other white settlements in the Bardi and Jawi claim area would have required substantial church or government assistance to survive. In some parts of the claim area during the twentieth century there was no ration distribution so that Aboriginal people had to rely entirely on what food they could hunt and gather and what resources they could trade.
703 In relation to the influence of the missions and depots generally, Dr Skyring argued that they did not attempt to suppress the traditional lives of their Aboriginal residents nor did they stop Aboriginal people from moving around for work, ceremony or food. The missionaries' approach to Aboriginal culture was not always tolerant. However, for the most part, the missions and other white settlers in the claim area were unable to prevent people from continuing their traditional practices nor could they prevent them from living permanently away from what they referred to as 'their country'.
704 An interesting extract from a report by Father Nicholas of Lombadina in 1911 stated:
'The number of all the natives of the Camp in this Mission, varies from 60 to a hundred; (the most regular being abbout [sic] 70) owing as you may know, to the NOMADS [sic] tendency of the Tribes of the Kimberley, (better to say: of all Aboriginals of Australia). The experience giving them the knowledge of the differend [sic] epoques in the year in which their game, fruits or fish can be abundantly obtained in some places or Creeeks [sic] along the Coast; and also; the great attachment they have for what they call: "their Country",it is said, the place of their Birth (which has to be frequently and religiously visited) are certainly two important factors to be considered in the instability or inconstancy in one place.'
705 There was interaction between Sunday Island and the mainland in the early twentieth century. There were marriages between Aboriginal men on the island and women on the mainland.
706 Police patrols reported a ceremonial gathering in 1906 at Carnot Bay just south of the claim area. It was attended by about 60 Aboriginal people. Further north police found 'a great number of natives' gathered from Beagle Bay, Pender Bay, Cygnet Bay and Cunningham Point. Police Constable Nelson burned all the camps. About a week later he reported people returning to the mission from the ceremonial gathering, but a month later wrote that Beagle Bay mission was inhabited only by old people 'all others having gone to Pender Bay for Cobba Cobba'. There was another reference to a ceremonial gathering in a report to police by Father Nicholas at Lombadina mission in 1911.
707 Dr Skyring took issue with Dr Green's citation of Isdell's claim that Harry Hunter had a protective attitude to Aboriginal people at Bulgin and assisted them with food and clothing. She contended that the record suggests that Hunter was more violent than protective, lived with a considerable workforce of Aboriginal people, and relied on their labour. She went into some detail about Hunter's activities. She referred to a police inquiry into allegations against him which was conducted in 1906 and disclosed that the Aboriginal people who worked for Hunter regarded the area as 'their country' but seemed to accept Hunter's presence. Hunter described Bulgin as 'the native name' for the place. He died in 1919. The camp at Bulgin remained until at least World War II.
708 The Lombadina mission continued in spite of departmental funding cuts in the late 1920s or early 1930s. It continued to be supported by the Church. Its population varied between 55 and 200. There were regular proposals to amalgamate the Lombadina/Sunday Island missions. In 1931 the Chief Protector argued that Lombadina and Sunday Island persons were so nearly connected as to warrant their maintenance at Sunday Island. However a Broome police constable in the same year reported that:
'As these natives belong to the country in the vicinity of Lombadina, I am of the opinion that if they were removed to any other mission they would not remain but return to Lombadina.'
709 The Lombadina mission was described by Mary Durack in the 1960s as being supportive of traditional Bardi ceremonial life. Apart from the missionaries themselves most of the people at Lombadina were 'full-blood members of the Bard tribe'. Durack's pamphlet on Lombadina contained pictures and text. A caption on the photograph of an Aboriginal man with cicatrice marks on his chest was in the following terms:
'Dougall, an elder of his tribe, is typical of the first generation of Lombadina mission natives. A faithful Christian but proud of the traditions of his people, his broad features and strong physique are characteristic of the coastal tribes. By nature friendly and peace loving, the Bard people were always well disposed to the missionaries and they responded to Christian teaching.'
Durack Mary, Lombadina Mission Pamphlet, Battye Library c96 p 6
Another photograph of children dancing referred to children often joining in corroborees and learning the songs, dances and legends of the Bardi tribe. The pamphlet in which these photographs and captions appeared was evidently produced to commemorate the mission's golden jubilee in 1961. The Foreword was written by Bishop Jobst, the Vicar Apostolic of the Kimberleys.
710 A school was opened at Sunday Island in the 1950s which was funded by the Education Department. In 1963 Aboriginal people went from Sunday Island to Derby following their children who were moved there after the Education Department closed the island's school. The children were lodged in the UAM hostel at Derby. Aboriginal old age pensioners from the island were moved to Lombadina so they could visit the island as they desired. Some departmental officers were prepared to recognise the traditional connection of Aboriginal people to Sunday Island and to reflect that in departmental policy. Others saw it as an impediment to the assimilation of Aboriginal people in white society.
711 On 3 September 1968 a group of Sunday Islanders in Derby wrote to the Western Australian Minister for Native Welfare for assistance to return to the islands. The letter, signed by Khaki Stumpagee said, inter alia:
'We the people of Sunday Island wish to return to our Native Homes as soon as possible and beg your Department to assist us. Ten years ago on the closing of the Sunday Island mission we were shifted to the Native Reserve at Derby. Our assimilation has only been to the worst of the white men's ways drunkness, gambling, general lowering of moral laws. We believe that with financial assistance we should be self-supporting in a reasonably jobs (sic) fishing, oyster industry, trocus (sic) shell, sandal mineral development.'
Mr Stumpagee asked for several boats including a 35 foot boat and working capital for 10 months. The request was reiterated at a meeting of Sunday Island residents with Department of Native Welfare Superintendent Johnson in Derby in November 1968. However he was unsympathetic to the request and advised the Commissioner that the project proposed was not feasible without an amended plan.
712 In 1970 Bardi people had returned to Sunday Island. The former missionary David Drysdale who assisted their return administered a Bardi Group Fund at the ANZ Branch in Derby. By June 1971 there was a population of between 30 and 60 people on the island. Their only source of income was 9 old-age pensions and some child endowment payments. Some assistance was provided by the Commonwealth Office of Aboriginal Affairs in late 1971. The sum of $1,000 was made available to stock the community store. The Department of Native Welfare however was for the most part unwilling to commit money for the re-establishment of the community despite acknowledging that the situation in Derby was one of social tension.
713 There was some recognition in the early twentieth century of the existence of a Bardi Jawi tribal boundary. In a letter to the Chief Protector the Resident Magistrate, Dr Wace, said, inter alia:
'Mr Hadley has written to you asking to have the Native Reserve at Sunday Island expanded to the tribal boundary. I would venture to urge this very strongly.'
The use of Hadley's term 'tribal boundary' related to sea and island boundaries shown on a map referred to by Dr Wace. This showed Jawi territorial waters extending to the Sunday Strait and that they visited the islands of the Buccaneer Archipelago and Cascade Bay occasionally. The map showed the Bardi language area on the mainland adjacent to Sunday Island was 'much visited by the Sunday Island blacks'. The term 'visited' seemed to be synonymous with hunting.
714 Dr Skyring's further report discussed what she described as 'tenure in the claim area 1908 to 1980'. That concerned the history of the creation of various reserves. It also referred to the formation of a Bardi Council and its agitation for a lease at One Arm Point. In 1972 the Bardi Council, through its solicitors, requested the Commissioner of Aboriginal Planning to include Sunday Island in the area of land to be leased. In the event, and following the establishment of the Aboriginal Lands Trust under the Aboriginal Affairs Planning Authority Act 1972 (WA) the Bardi Council's request for land at One Arm Point was implemented. The Bardi Aborigines Association Inc was incorporated on 18 July 1973. The process of handing over land at One Arm Point to the Association took a further 2 years. A 99 year lease of the area including Sunday Island reserve as portion of reserve 20927 on the mainland was granted to the Bardi Association for a peppercorn rental in July 1975.
715 Members of the Bardi Council then sought to exert control over access to, and use of, its reserves. The Association pursued a policy of controlling non-Aboriginal access to its land and rejected government attempts to monitor and participate in access procedures. Bardi and Jawi people in the claim area continued to seek greater control over their traditional land for future generations as well as contemporary community.
716 In her conclusion Dr Skyring pointed to the refusal of Aboriginal people to be moved from what they identified as their country as a recurring theme in the history of the Bardi and Jawi claim area. The Aborigines Department and its successors had proposed repeatedly that the missions at Sunday Island and Lombadina be amalgamated. Those proposals were never fully implemented. When the Sunday Island population was moved to Wotjulum on the mainland at Yampi Sound in 1935 people immediately sought to return to their island home. Despite lacking resources and money to enable them to make the journey easily the exodus to Sunday Island was complete and the mission at Wotjulum abandoned by 1938. When children were removed by authorities to the UAM hostel in Derby in 1963, the parents followed but the people campaigned to return to their country. Senior leaders of the Bardi and Jawi community in Derby sought the assistance of the Department of Native Welfare in 1968 to return to what Tommy Thomas called their 'Native Homes'. The Department did not provide assistance so people returned to Sunday Island and Malumbo Beach for the most part on their own resources. In the early days of the One Arm Point community in 1971 the population of up to 60 people subsisted by sharing 9 old-age pensions and some child endowment payments and income from the sale of shell. Their principal diet was seafood.
717 Dr Skyring's expertise was not disputed. Her reports were received in evidence without objection. She was cross-examined but her cross-examination did not impact on the evidence which she had given. Her reports stood almost entirely unchallenged and I accept that they are a broadly accurate account of the historical events which they set out.
718 The historical evidence from Dr Skyring and Dr Green was broadly compatible. Dr Green's report however was of a preliminary nature and some of his interpretations which were contested by Dr Skyring were based on a less substantial body of evidence than she was able to marshal. There are many events referred to in Dr Skyring's report which were reported or recorded in the various documentary sources to which she referred. It is not necessary to determine as a matter of fact whether every such event occurred. It is sufficient to say that, based on my acceptance of the broad sweep of the history which she has recounted, it is possible to make the following findings of fact:
1. Aboriginal people occupied the claim area as early as the mid seventeenth century and continued to occupy the area at the time of annexation of the colony of Western Australia in 1829.
2. The people who occupied the claim area in 1829 from time to time displayed resistance to European incursion. (Stokes 1838)
3. The people who occupied the claim area in 1829 exploited marine resources. They used stone traps to catch fish. They collected shellfish in the intertidal zone and they also caught and ate turtle. They used water wells to get access to fresh water.
4. The people used fires.
5. The people carried wooden spears and used chipped stone tools.
6. Significant contact between Aborigines and Europeans in the claim area did not occur until the arrival of the pearling industry in the Kimberleys in the early 1880s. The relationship during the period of early contact was exploitative. Aborigines were effectively press-ganged to work as divers.
7. The people had campsites and wells throughout the claim area.
8. The people followed particular burial practices which included wrapping the deceased in paperbark and placing the body in or near a tree.
9. Following the arrival of missions in the 1890s people entered into a kind of symbiotic relationship with the missions. They obtained work from the missions and some food supplies. The missions came to be dependent upon their labour. Exposure to the teachings of the missions did not generally lead to rejection of traditional law and custom.
10. The people of the claim area have a strong continuing sense of association with traditional lands within that area which continued well into the 20th century as indicated by the history of Sunday Island and the Sunday Island mission. An earlier indication of a sense of territorial affiliation appeared from the evidence relating to Alexander Forrest's 1879 expedition. The strong sense of association continued until the present time as reflected in the activities of the Bardi Council and the Bardi Association.
The historical evidence referred to also supports the inference that the people who occupied the claim area at colonisation were, broadly speaking, the cultural and biological ancestors of the people who occupy it now. This conclusion allows for changing composition of the group effected by intermarriage which is dealt with elsewhere. As discussed in more detail later in these reasons it involves no finding about whether there was one or two Aboriginal societies in the claim area. That is an issue to be considered by reference to other evidence.
Archaeological evidence
719 The applicants relied upon archaeological evidence set out in a report prepared by Dr Moya Smith for the Kimberley Land Council and dated October 2000 (X-AV). Objections raised to particular paragraphs were conceded. An archaeological report of Dr Sue O'Connor (X-AW) was received in evidence on a similar basis. Dr Smith's expertise is not under challenge. She has had extensive experience in the claim area. In 1980, while employed as a research officer with the Department of Aboriginal Sites, which was then part of the Western Australian Museum, she participated in a site survey of the Lombadina area. It was requested jointly by the Lombadina Council and the Ministry for Cultural Affairs. The survey led to the registration of some 30 archaeological sites and about 70 ethnographic sites. She focussed on identifying and documenting scatters of stone artefacts, shell and faunal remains which dominate the coastal strip fringing the Pindan. The work concentrated on sites in the vicinity of Cape Leveque. She spent a substantial amount of time talking to Bardi and Jawi women who were knowledgeable about the country and its resources.
720 In her overview Dr Smith said that the archaeological record of the southern Kimberley coastal area including the claim area, is dominated by surface and sub-surface scatters of shell which usually but not always include stone artefacts. In addition to this evidence of reliance on shellfish in the claim area there are stone circles identified by Bardi people as hut or shelter bases and stone-wall fishtraps. No rock shelters with occupation deposits and few deeply stratified shell middens had been located. She though it unlikely that many or any existed in the claim area. The work of Kim Akerman in 1975 suggested that there were three phases in artefact typology in the area, the earliest characterised by pebble choppers and undifferentiated flake tools, the second by pebble choppers, blades, points, flake scrapers, shell receptacles, occasional shell tools and ground edge axes and the third by shell chisels and knives, ground edge axes, utilised flakes, shell receptacles and small grindstones for shell tools. The third phase was thought to have encompassed the 'contact period' and included adoption of metal and glass for tools. Some of the shell mounds and scatters in the claim had small numbers of artefacts. They did not readily indicate patterns of changing stone artefact typology or technology, particularly as they remained undated.
721 The presence of people in the general south Kimberley region for up to 30,000 years suggested that people were likely to have been in the claim area for a similar period. The local geology prevented the development of large rock shelters which could act as catchments for occupational deposits. This fact, and the focus of initial dating on shell material in red dunes, may to some extent account for the absence of dates earlier than 2,060 years ago.
722 At a site near Lombadina fossilised human foot prints forming a line 6.5 metres long and facing approximately south had been observed. An eleventh footprint facing north-west was 5 metres north of these. They suggested adults, at least one, probably a man. At least 2 people walked in the line because of the disposition of the footprints. Their description is set out in Welch, David M 'Fossilised human footprints on the coast of north Western Australia', The Artefact 22:3-10. The footprints were dated by optical stimulated luminescence using grain samples from the beachrock in which they were made. The samples gave a weighted average age of 1,920-+ 140 years. These were the oldest dated sites in the claim area. Until further sites were excavated and dated the archaeological sequence had to be considered preliminary. What was certain, in Dr Smith's opinion, was that Aboriginal people had lived in the claim area for at least 2,000 years.
723 The Aboriginal Affairs Department sites register lists over 60 archaeological sites in the claim area variously defined as having artefacts, shell middens or shell scatters, engravings, fish traps, paintings, man-made structures, evidence of quarrying or the presence of grinding grooves and burials.
724 Dr Smith discussed archaeological sites in buru most familiar to her. No detailed analysis had been carried out on samples collected beyond simple species identification of the shells and rough counts of artefact and lithic types. There were limitations imposed by virtue of the archaeological sites being open and by the poor survival of organic material. Enduring materials such as shells and stones were a very small part of the materials used and consumed by Aboriginal people - Meehan, B Shell Bed to Shell Midden, Australian Institute of Aboriginal Studies Canberra.
725 Dr Smith referred to the Gooljiman buru, the area of which was set out in a sketch map shown in Figure 3 to her report. That figure also showed the archaeological sites which she identified. All of the sites were located within the coastal dunes. They had artefact and shell scatters identified during the 1980 survey. A restricted site, Linbingoon, as well as being of ritual significance, had archaeological material and several panels of engravings including marine motifs and other designs. At one of the sites, Kayeroon, the archaeological material included shellfish and stone artefacts which were mainly flakes of quartzite but included a hammerstone and charred heart stones. There were also turtle and dugong bones. The material extended along the entire beach zone culminating in a mounded hill overlooking the western end of the reefs and enclosed pool (Karlanoon and Malingin Reefs and Manara Pool). The Gooljaman campsite was 'an extensive scatter of stone artefacts and shell extending for over 1 km'. The material included a basalt axehead, large basal grindstones still with upper grinders and syrinx shells. 60 to 80% of discarded artefacts were lumps or fragments of charred and thermally fractured stone, including hearth and cooking stones. The remainder were primary flakes, occasionally retouched flakes and blades and fewer than 10 core fragments. Retouched baler shell was also present.
726 In the Gnamagoon buru illustrated in Figure 4 to her report, Dr Smith examined 13 archaeological sites and recorded the location names where possible of a further 20 places. The archaeological material survived primarily in the coastal dune system. The sites included old-time and recently used campsites, fresh water sources, fishing spots, pools and a fishing rock, reefs and areas restricted to men only. The surface material in that buru conformed to phase two of the Akerman model reflecting the later of two pre-contact phases with the majority of artefacts being simple 3-12 cm long blades or points, some with marginal retouch.
727 Dr Smith examined middens in the buru including Lulud, Ilon or Illan, Goodagoon, Armanda, Noron, Nimlaroon and Djilon or Jilan. They had assemblages similar to Malilb which she had described in a paper published in 1987. In that case the majority of shells were dog cockles, small pearl oysters, little abalone and occasional examples of other reef species. The main differences in the assemblages lay in the ratio of reef to mangrove shellfish species. These could be correlated by their proximity to the relevant resource zone. Other archaeological features in addition to stone artefacts and shellfish debris which could be identified as pre-contact, included a burial at Nimlaroon, engraved slabs of rock (hatched line motifs) between Lulud and Malilb and freshwater soaks at Noron and Djilon. The skeleton at Nimlaroon which was eroding from the dune was excavated and later reburied in Pindergoon, which is a restricted access location to the north of the Gnamagoon salt flats. Lack of dental caries and dental wear consistent with pre-contact diet suggested that the burial had occurred pre-contact. The two central front teeth had been evulsed.
728 Dr Smith said that there is a sense in which the entire coastline bears archaeological witness to human presence, with scattered shell and stone at virtually every place she visited. The other most striking indications of human use and occupation of the claim area were stone circles identified as hut or shelter bases at Maara on the north side of Chile Creek and stone wall fish traps.
729 Nineteen fish traps had been recorded in the claim area. Trap types were visually distinguished from each other by details of their construction techniques, their shape and the position within the tidal range. All the traps comprised locally available stones and were functionally dependent upon local tidal movement. Fish feeding on advancing and high tides would be stranded behind walls or in enclosures which blocked natural drainage channels as the water receded. Stone lines across sandy substrate not necessarily connecting rocky outcrops were more common in the south near Bidyadanga. The northern traps were usually sections of walls linking natural rocky outcrops. Clusters of more than three to four traps appeared to be a southerly phenomenon. Solitary traps were more common around the northern end of the Dampierland Peninsula.
730 Dr Smith listed fish traps in the claim area. These occurred at the following locations:
- Medlogoon
- Emeriau Point
- Imbalgun
- Weedong Well
- Orlg (Chile Creek)
- Bungarr/Boolginara (Lombadina Beach)
- Bulgin (Hunter Creek)
- Mulagun
- Joomonyoon
- Gambanan
- Lalanan
- Galinagoon
- Ardnogoon
- Catamaran Bay
- Nimanan
- Jalalanga
- Mangingoor (Elephant Point)
- Jarjang
- Nilil (Rumble Bay)
731 Aboriginal campsites with 'traditional' tools made of European materials such as metal and glass testify to the continuing use of pre-contact campsites in the post-contact period. People had continued to use the same campsites into the late 20th century. It is, however, almost impossible to attribute precise chronological detail to what is interpreted as ongoing Aboriginal occupation and use of the claim area evidenced from the archaeological record. No exact dates can be ascribed to the features reflected by the use of materials such as glass, china and metal although they are clear indications of ongoing occupation and use during the historic period.
732 Artefacts made of post-contact material discarded on the site, traditional objects made and used in the early 20th century testify to the continuing occupation of the claim area by Aboriginal people as well as ongoing traditional life. In this connection she referred to collections of post-contact materials and traditional objects made and used in the early 20th century and held in the Anthropology Section of the Western Australian Museum.
733 The pre-contact archaeological record testified to people practising a maritime economy. The earliest dated indication of Aboriginal presence, the fossilised human footprints some 2,000 years old, traced at least two adults walking along the strand line in exactly the same manner as observed by King in 1822. From the middens which date between 1300 and 870 years ago, it was obvious that the foods people consumed were derived from the sea. The conditions of preservation did not favour the survival of anything apart from the shells of consumed shellfish, shell tools, stone tools and ochre. Organic materials had a tendency to disappear rapidly from locations. The behaviour of camp dogs which scavenge organic materials was 'probably the key factor in the skewed representation of materials in campsites assemblages both before and after the contact period'.
734 Strands of evidence indicative of cultural continuity included the location of campsites and their likely relationship to seasonal factors, the types of shelters, the ongoing use and construction of fish traps and the wealth of knowledge about and continuing use of marine resources as primary and important foods. Dr Smith also referred to the identification of other resource zones for extracting raw materials such as favoured woods for tools, ochres for body paint and artefact decoration, stones for tools and the location of fresh water sources.
735 Campsites were located predominantly in locations along the entire coastal strip as evidenced by the archaeological record. Irrespective of where people lived permanently because of external intervention, when they had extended trips to country for resources there were repeated patterns in which sites were chosen as the most suitable locations. During the wettest parts of the wet season (December to January) people would camp in sheltered locations on the leeward side of dunes, sheltered on their other side by fringing mangroves or 'jungle', the vine thickets or pindan woodlands. Sites such as Ilon and Djilon afforded protection from inclement weather, but since they were within a kilometre or two of the ocean did not hinder access to target resources including turtle eggs or fish. As the weather became drier, but still hot and steamy, people moved to central saltwater locations which afforded easier access to the ocean and its resources but still offered shelter. This was the time when it was necessary to use fish traps like those on the north and east of the peninsula to supply food for large groups of people who would gather for ceremonies. During the March-May period, Iralbu, with low tides, the people focussed mostly on reefing as well as collecting abundant available fruit. By the end of the season they were camping on sites overlooking the ocean. When cold south-east winds began to blow people would move back to inland sites and further into the pindan.
736 Each of the seasonal adjustments required the construction and use of different types of shades or huts. There was no pre-contact evidence of hut types. The earliest reference appeared in Stokes' descriptions from January 1838. The platform type of shade, which Stokes illustrated, was one which people continue to erect. When weather conditions required more shelter people constructed inverted 'V'- shaped shelters (gidoon) with various forms of covering. Before European materials arrived these were covered with paperbark sheets. Mr Paddy and Esther Paddy had constructed and used one of these in 1981 at Jinganan, near Karrakatta Bay. It had been used in the cold season in July and August when they had been camping out keeping cattle away from a well. They would add a windbreak and use water from the soak at the foot of the hill where the shelter was. Dr Stokes referred to the speed at which such ephemeral constructions would disintegrate.
737 The only type of shelters able to be identified as pre-contact were the stone hut bases such as those at Maarra which were described by many people as 'old-people's' huts or 'from long-time ago'. A similar structure was excavated on High Cliffy Island slightly to the north of the claim area. A baler shell nearby was dated at 370 -+ 50bp. Dr Smith said that this indicated that similar structures were in use in the general region before the establishment of the colony.
738 Some of the strongest evidence for continuity of practice in terms of resource exploitation, as well as continued occupation of particular areas, came from continued use of stone-wall fish traps. Fish traps have to be monitored. While none of the traps had been dated it was likely that those with sections very close to the bottom of the tidal range related to slightly lower sea level stands and were thus in part convincingly pre-contact, since it would be impossible to construct them under the present tidal regime. These were described by Dampier in any event, which placed them before 1829. Dr Smith noted that different traps were reputedly best for catching different species, and therefore most likely to have been used when targeting different fish. She set out descriptions of the traps with stories of or evidence for their post-contact use in the claim area.
739 Dr Smith referred to fishing activities and the use of fishing boomerangs and fishing spears and harpoons. Over the past 20 years there had been no occasion on which she had shared fishing trips without everyone bringing their fishing spears. Children and boys in particular, were encouraged to assist in making their own spears and to practice using them on any possible occasion. Their importance as an indication of connection to the sense of identity as 'Salt Water People' was reinforced by gifts of spears to family who went away from Bardi country.
740 Digging sticks are multipurpose tools. Digging is only one of their functions. Paperbark trays were used to hold cooked fish and shellfish but are rarely seen today. Containers of baler shell were commonly used as water containers, replaced today by plastic 20 litre containers, 2 litre cordial bottles or cooling jugs. Fragments of baler shell dishes, which could be used as scoops, were sometimes found on sites and newly washed ashore intact shells were frequently collected and found in many houses around the communities. Turtle shells were also used as containers.
741 She referred also to the nocturnal fishing torch. The fishing poisons were identified by reference to five distinct plants, a sea slug and a soft coral.
742 Boomerangs continue to be made particularly those used as clapping sticks or which are earned by young men after initiation. Dr Smith described distinctive Bardi boomerangs with groups of three stripes, often yellow ochre, across the boomerang's width. Such were visible in a 1917 photograph of a group of men on Tyra Island. They continue to be made from a tree sharing the boomerang's name, namely irrigil. Other forms of boomerang such as the olm or ceremonial boomerang and fishing boomerangs of wood are no longer routinely made. In 1983 Mr Paddy taught Dr Smith and several children who are now in their mid to late 20s how to make a wooden boomerang. Distinctively shaped shields with incised decoration also continue to be made using jalgir. They are among items which form part of the traditional weapons made in the Lombadina workshops comprising a shield, paired boomerangs and spears. The woods for all of these are collected in the pindan. People sometimes travel reasonable distances to find trees of suitable shape or dimensions.
743 The people no longer use stone or shell tools. Men and women carry the ubiquitous tomahawk, larger axes and a variety of chisels and sharpening stones.
744 With tanks and bore water supplying most of the peoples' freshwater needs, only the older people kept up an active interest in maintaining the soaks which were once a mainstay of existence in the country. Dr Smith referred to soaks at campsites used by the Paddys. At Swan Point and Jarjang there were soaks manifesting as upswellings of water in small clusters of mangroves where fresh water was available intertidally. These had been fenced off to prevent cattle fouling them when there were people spending any time nearby.
745 The archaeological evidence of traditional occupation and use of the land claimed by the Bardi and Jawi was limited for the pre-contact period. Surviving shellfish and stone tools were slender records of what logically must have been a more complex existence. As Meehan had said 'man does not live by shellfish alone'. Despite this the shellfish from the archaeological sites in the claim area were apparently those which continued to be important foods until the 1940s. The people with whom Dr Smith worked continued to know the best places for those shellfish and in discussing the content of middens easily identified the sources of particular species to the point of identifying differences in terebralia shell occupied by the gastropod itself as opposed to those reused by a mangrove dwelling hermit crab. Older women continued to collect shellfish and on reefing trips every year people had collected their particular favourites most commonly oysters. Mercia Angus had often made specific trips to her country on the east side of the peninsula to collect her favourite large oysters. Shellfish other than oysters were increasingly used as bait over the past 20 years rather than as foods in their own right. In Appendix 2 to her report, Dr Smith listed species which people had identified from middens. Asterisked species occurred most commonly on middens and were likely to have been the most frequently targeted food species. With Dr O'Connor, Dr Smith collected 50 specimens of each species to allow a comparison between their weights, and the dry weight of empty shells on the sample and on the middens. This allowed them to infer the food weight of the discarded midden material. Detailed knowledge of available shellfish species which many people continued to demonstrate spoke to a connection with both pre-contact and historic evidence of people's use and occupation of the land.
746 Although people no longer used the stone or shell tools, they could identify the sources of the stone used. Two of the most important locations were Galan and the vicinity of Gadiman. The ethno-archaeological information collected over the past 20 years reflected a society with a well-evolved maritime economy adjusted to local resource availability. The observed behaviour of the people, in combination with the histories of land use according to seasons, the flowering and fruiting of plants, the behaviour of exploited animals and social imperatives such as ceremonial gatherings was entirely consistent with the distribution of archaeological sites and their content. The lifestyle and resource base which people still understood and partially exploited focussing particularly on such marine species as fish, turtle, dugong and stingray had changed little in terms of location and seasonal factors. The pre-contact skeleton with its evulsed teeth reflected a practice which, although waning through missionary influence, was still of some account in 1979 during Robinson's fieldwork.
747 Wooden artefacts had been collected for institutions such as the Western Australian Museum. The Jackson photograph of 1917 connected Bardi people across the century through the artefacts enshrined in that image. They were similar to early examples in museum collections and continue to be manufactured for personal use and for each young man going through the various stages of initiation. The white paint worn for ceremony, the patterned shields, the long skinny spears, the hairbelts, the pearl shell and the triple-striped boomerangs connected the current men, their ancestors and descendants to their sense of self as Bardi people and to their country.
748 Dr Smith concluded:
'On the basis of the similarity between behaviour which I have observed, or which is apparent from oral histories, early historic records and the accounts of other archaeologists, and what sort of material record this would leave, which is furthermore consistent with the existing archaeological record both before and after contact, it is the expert's opinion that Bardi/Jawi people used and occupied the claim area prior to the establishment of the Swan River colony in 1829.'
749 A further archaeological report was provided by Dr Sue O'Connor. It was dated October 2000 (X-AW) and was received subject to objections which were conceded. Those parts of the report objected to were ruled through.
750 The report was based in part on archaeological field work carried out by Dr O'Connor in 1985 for her PhD. This involved work in the Buccaneer Archipelago. Members of the Lombadina and One Arm Point communities co-operated with her in the project. In her summary document described field work in the area between One Arm Point and Buccaneer Archipelago and within the Archipelago which she prepared at that time, Dr O'Connor wrote an opening statement which she said was still true. She said:
'The islands of the Archipelago as well as all areas of the mainland that we visited were rich in old camping places. Virtually nowhere we landed did we move more than one hundred metres from the boat without finding a scatter of stone flakes, a collapsed windbreak or some other indication of how this area was used. The dates that have been received so far indicate continued use of this area for more than 24,000 years. Combined with the richness of the area, these old dates make this area of the Kimberley coast a very important place for understanding the way people used the land in the past.... The dates from these sites demonstrate the continuity of land use in this area.'
Although there was an abundance of scattered stone and shell artefacts no stratified or datable deposits were found in open locations in the claim area. Rock shelters do not occur in the geology of the islands.
751 Dr O'Connor's research focussed on obtaining information about the changes through time in the pre-history of the wider region of the Archipelago. She therefore concentrated her detailed survey and reporting on islands with rock shelter formations such as Koolan Island, outside the claim area where she could obtain samples for radiocarbon dating. She did, however, carry out ethno-archaeological work with some of the claimants on islands within and adjacent to the claim area.
752 She posed a number of questions in her report. The first was whether there was an Aboriginal occupation of, and use of, the claim area before and at the time of the establishment of the colony of Western Australia in 1829 and the time depth of such occupation. Referring to archaeological evidence, Dr O'Connor observed that no detailed archaeological survey or excavation had been undertaken on the Sunday Island group or adjacent islands within the claim area. Isolated artefacts of stone and shell were seen during the course of her survey on Sunday Island but they had no potential for dating. She referred to dating of materials in a rock shelter on the western end of Koolan Island. Koolan Island was in use 24,000 years ago when it was part of high peninsula on the mainland overlooking the coastal plain. The sea came proximal to the site about 10,500 years ago. The site demonstrated continuous use of resources drawn from both land and sea after that time. Koolan Peninsula was cut off from the mainland by rising seas about 8,000 years ago and the island was formed. The dietary emphasis of Aboriginal occupants of the island was focussed on coastal and marine resources. High Cliffy Island is 8 to 10 kilometres from the mainland and has occupation dates of between 3,000 and 6,000 years before the present. Sites on High Cliffy Island contain a similar range of resources to those in the Koolan shelter. There is an even greater marine emphasis with large quantities of bone of turtle, dugong, seabirds and fish. This constitutes the earliest evidence for Aboriginal use of islands anywhere in Western Australia.
753 Dr O'Connor pointed out that Sunday Island and the adjacent islands in the claim area are ecologically similar to Koolan and High Cliffy Island. Sunday Island has larger areas of adjacent platform reef than Koolan Island and better sources of fresh water than High Cliffy Island. She offered the opinion that the occupation history of the islands in the claim area should therefore be similar in terms of the nature of exploitation and time depth to that of Koolan and High Cliffy Islands.
754 The questions which she next posed were whether the current Aboriginal archaeological and ethno-archaeological evidence showed a cultural continuity or whether there had been changes over time in the use and occupation of the land from earliest recorded Aboriginal presence to post-contact. Related to that was the question whether the archaeological evidence of traditional use and occupation of the claim area after 1829 was culturally consistent with its present use and occupation by Bardi and Jawi peoples.
755 Referring to her own fieldwork in the 1980s, Dr O'Connor said she had several times found abandoned hearths on Sunday Island strewn with bones, burnt sand and cooking sand. These had been identified by Khaki Stumpagee as turtle ovens. Some of the people with her caught a turtle which they butchered and cooked in that manner. They also collected and cooked turtle eggs when in the islands on the trip with her. They told her how the female turtle attempts to hide the real batch of eggs by making several holes. They used long spears with detachable metal harpoon heads to catch the turtle. They would jump from the bow of the dinghy plunging the harpoon into the turtle shell with the full weight of the body behind it. Two of her companions also went to catch dugong on a trip back to One Arm Point.
756 Dr O'Connor observed that the same range of dietary resources are found on open shell scatters on One Arm Point and on the islands in the claim area as appear in the older dated sites in the Koolan shelter and the High Cliffy shelter. Trochus have been collected for sale from historic times but are still sometimes eaten. The trochus was found in all the sites she excavated outside the claim area and was seen on eroding shell scatters at One Arm Point and at isolated finds on Sunday Island. Its place in the archaeological record attests to the role the shellfish species played in diet prior to commercial exploitation. On a reefing expedition with Khaki's wife and Mercia Angus she observed them use short spears known as jungur to poke into holes in the coral and to prise off shellfish like the chiton.
757 Items of material culture found were next discussed. Dr O'Connor referred to a baler shell implement in the midden levels at the Koolan shelter. The implement had the edge ground in a way similar to tools described as hafted baler knives and adzes which had been recorded by Akerman on Dampierland. The knowledge of how to make these artefacts and what they were used for is still held by Bardi and Jawi elders. Khaki Stumpagee explained to her how such knives were made and hafted before metal became available. He showed her patches of rock with evidence of grinding used to sharpen the edges of the baler knives and later to grind down metal spearing harpoon heads.
758 Dr O'Connor's conclusion was that while core preservation conditions and a strongly seasonal climate had mitigated against the preservation of ancient archaeological sites on islands within the claim area, the records from adjacent islands outside the claim area with good preservation conditions, namely rock shelters, indicated that occupation of the islands in the claim area would have antiquity of at least 6,000 years. The archaeological evidence for islands within the claim area however was sparse and undated. Such evidence as existed was consistent with their use by Bardi/Jawi people prior to the establishment of the colony of Western Australia.
759 I accept the evidence of Drs Smith and O'Connor in so far as it consisted of their direct observations. I also accept their conclusions. By way of summary the findings that emerge from that acceptance including the following: