Expert evidence about section systems
701 The respective positions of the experts as to the presence and significance of section systems in the overlap area at effective sovereignty are summarised at proposition 3.3 of the Expert Conference Report. They both agree that there were section names in the overlap area at that time. But in Dr Mathieu's opinion, there was a difference between the situation regarding section systems in the overlap area at sovereignty and the situation in the Western Desert, because they served different functions. She characterises the sections that were in place in the overlap area as 'external', in that they 'did not govern internal relations regarding rights and interests in the territories'. Those rights and interests arose instead 'out of the connubial model', a concept that will be addressed in detail below.
702 Dr Morton's view is more tentative. It is that there was possibly a difference between the overlap area and (other) Western Desert section systems at effective sovereignty. He says 'They were probably new, or fairly recent, and that may have had implications for the way they functioned compared to other parts of the Western Desert. However, the applicability of the connubial model remains debateable'.
703 To contextualise the discussion that follows, it is useful to set out the explanation of moieties and section systems which Dr Morton provides in Morton I. Dr Morton explains (at paras 101-102, citations omitted):
The skin system is a superimposition on a double moiety system - 'moieties' per se and 'generation moieties'. The basic meaning of 'moiety' is 'each of two parts into which a thing can be divided', but anthropologists have appropriated the term to apply to each half of society that always (or should always) marry into its opposite half. These moieties may be named or they may simply be implicit in the way people conduct marriages; in the Western Desert they tend to be named in the north, but not in the south. Generation moieties cut across the intermarrying moieties and further define people by age - or, more exactly, by genealogical level. Unlike moieties, which are 'exogamous' (one marries 'out' of them), generation moieties are 'endogamous' (and one marries within them). They can be formally defined as a divide between one's adjacent generations (or genealogical levels) and, on the other hand, one's own generation and the generations of one's grandparents and grandchildren. …
When the two systems are juxtaposed or 'crossed', they generate four categories - the 'sections' or 'skins', which function as names.
704 Turning to the detail of the expert evidence, Dr Mathieu's view that there were no sections is set against the background of the distribution of section systems that she finds in the records of Daisy Bates. Mathieu I refers to section systems found which Daisy Bates found in the Goldfields area and describes the various systems as found by Bates. Dr Mathieu summarises Bates's data as associating 'the people east of Coolgardie with a mixed section/moiety system and two section systems originating east and west of Maduwongga country. Bates also confirmed that the region was in a state of flux and a destination for migrating tribes' (Mathieu I para 124). It is difficult to make out which peoples, observing which systems, Dr Mathieu is describing here. In any event, a mixture of moiety and section systems is confirmed by further description of Bates's data which Dr Mathieu undertakes in Mathieu II.
705 The various possible causes and implications of the mixture of systems which Dr Mathieu identifies are captured in the following passage from Mathieu II (para 147, citations removed) - Kadee is a person who apparently appeared in records collected by Bates in around 1910:
Now, a mixed moiety-section system can certainly indicate inter-tribal marriage, as is the case in Kadee's genealogy. It could also indicate immigration or indeed both. There is no reason to doubt that in 1910, people were mixing in ways that they had not done in less chaotic times. In Bates' words: 'in these days of white settlement people travel out of their own areas where they would never have dared to go in the old days'. As early as the mid-1890s, Fred McGill told that people had come to Colgardie [sic] from the district round and that many people had died. Kadee's genealogy, however, strongly suggests that the class system was introduced into Coolgardie well before the gold rush. This class system implies social contact with the Desert peoples. And social contact implies ritual contact and trade. The mixed social system, therefore, may have been an adaptation to the traditional movements of Desert people into the Coolgardie-Kalgoorlie-Ularing region rather than a recent adaptation to immigration as I had first thought. We will see that ceremonial and economic data give weight to this proposition.
706 In the concurrent expert evidence session Dr Mathieu referred again to Bates's findings of different section systems in places within the overlap area and the inconsistency with which they appeared to have been observed, judging from genealogies collected by Bates and Tindale. However Dr Mathieu considered that the fact that Bates found sections in what is now the Maduwongga claim area 'just shows that people had relationships with Desert people that probably fell into the ritual sphere', and some intermarriages with those people (ts 435). So for Dr Mathieu, an individual's section was not relevant for internal relations within the group of people but only relevant to their external relations with other groups. Later in her first report, Dr Mathieu says that 'Bates found a mixed kinship system with both moieties and sections in Coolgardie and Widgiemooltha' because of the arrival in the region of a number of people from different tribes: Mathieu I paras 163-164. In cross examination she acknowledged that when and for what purposes sections were in use in the overlap area was 'complicated' (ts 557).
707 Dr Mathieu's view that the use of section systems in the claim area was only relevant for external relations is not clearly articulated in her written reports. The basis for it appeared only in the following passage from her cross examination (ts 650):
MR EDWARDS: Don't you, in your reports - in your first two reports, I mean, you cite some material from Bates where she says there was a four-section system around Edjudina. That's right, isn't it?
DR MATHIEU: Yeah, I cited it because she found two systems and she also found a moiety system, so she found a mixed system and that had me baffled for a long time. I really could not understand that and I thought that this might have to do with people migrating into the area, and I thought that for quite a while, but then when I actually revisited Bates' genealogies concerned more with the oversight, I saw that these genealogies went too far back in time for the section system to only be attributed to migrants. And it's not until I started to ask myself another question. Where else does Bates find these mixed systems? She finds them amongst the Ngadju and at Peak Hill. What do these places have in common to have mixed kinship systems like this, because it doesn't make sense to have a mixed kinship system, and I found what they have in common is that they are - they border the desert, they border the western desert. And once I understood that I say, okay, so these section systems have to do with relating to desert people. They are not necessarily the internal system at work.
708 In other words, the view that the section systems in the Maduwongga claim area were for the purpose of external relations with desert people is an inference that Dr Mathieu makes because the mixed kinship system there is similar to the systems found in other areas which she characterises as bordering the Western Desert.
709 Another aspect of Bates's data on which Dr Mathieu relied in cross examination was what she said were different section names on each side of the Edjudina Range. This, she said, indicates the presence of a socio-political boundary. It was unclear, though, which different names she was referring to. As best one can tell from her cross examination elsewhere, the distinction is between two section systems that Bates found in what is now the Maduwongga claim area and the section names that Tindale took from his Walyen informant, Yordy. The section names Bates found were, in one 'system', Taroro, Boorong, Kaimera and Eebarga and in the other system she found, Taroro, Boorong, Kaimera, and Boorgooloo. This appears to be contrasted with the class names which Tindale's Walyen informant Yordy gave: puru:ŋu, karimaia, milaŋu and panaka. However the proposition that the differences in names marks a social political boundary at the Edjudina Range does not take account of the fact that Yordy actually gave his country as encompassing Edjudina and going as far south as Pinjin.
710 Note also the similarities between the names that Bates found and those given by Dr Morton in Morton I as being in traditional use in the NP claim area: karimarra (alt. milangka); purungu; tjarurru; and panaka (alt. yiparrka). It is hard to discern a clear border from these data.
711 Despite all this complexity, in Mathieu I Dr Mathieu is 'quite certain that the Maduwongga did not have a section system' (Mathieu I para 146). As has been seen, she is prepared to base her view about KB's birthplace on that conviction, at least in part. The conviction appears to be based in part on a belief said to have been held by Tindale and Berndt 'that Maduwongga kinship organisation was based on the endogamous moiety system which Bates found among the Kalamaia and Kalaago' (Mathieu I para 146). In relation to Berndt, this seems in turn to be based on a map referring to rules of marriage organisation which is considered in the next section below.
712 As for Tindale, Dr Mathieu appears to say that he considered there was no section system in the Maduwongga area based on his note on genealogy sheet 110 that 'this is the zone of transition from 4 to no class': see [306(1)] above. She was taken in cross examination to a sketch map that Tindale drew in his journal (seemingly on 1 June 1939, some three weeks after he met KB), which shows a dotted line which, on its northern side, is labelled '4 class tribes' including at Laverton and, on its southern side, Kalgoorlie. The map also contains an unbroken line that runs south of Kalgoorlie, and south of that line a label saying 'no class'. This suggests that Tindale saw the area down to Kalgoorlie, including the Maduwongga 'tribal area', as potentially part of the '4 class' area or at least as a transitional zone.
713 Dr Mathieu's conviction that the Maduwongga did not have a section system also appears to be based on her analysis of genealogical field notes taken by Bates and by Tindale, which are considered above (see [706]ff). Dr Mathieu noted at one point during the concurrent expert evidence session that a woman of Edjudina on a genealogy taken by Bates which recorded generations that may have gone back as far as 1850 is not attributed a section, but she also acknowledged that Yordy, whose country ran down to Edjudina and Pinjin, did say that he had sections in his country.
714 Dr Mathieu then goes on to opine that KB and Arthur Newland did not have inherited section classifications but were given them at some time after birth, as in KB's account to Tindale of receiving tharuru from the man at Laverton. But unlike KB's account, there is no firm evidence that Arthur Newland was only assigned a section name some time after he was born. Dr Mathieu's view that he was is based on her understanding of how people from different sections were and were not permitted to marry and the rules of inheritance of sections. And yet, this is in turn based on statements about the sections of Mrs Nudding's and Mrs Strickland's mother (even though Dr Mathieu also said there was a degree of confusion involved in Mrs Nudding's and Mrs Strickland's idea of what skin group their mother belonged to). Regardless, Dr Mathieu uses that view to support her conclusion that there were no section systems in the area. She also supports that conclusion based on an account of different things said to her by Mrs Strickland and Mrs Nudding about section systems, albeit things that went beyond what those two witnesses said in their evidence in this proceeding. Dr Mathieu says they showed confusion about section systems and that this would be 'unthinkable in a society ruled by this system' (Mathieu I para 157). But she does not appear to entertain the possibility that it is the passage of time and the impact of white settlement in the Goldfields area, rather than the absence of a section system in a uniquely Maduwongga society, that explains why the witnesses do not belong to a society ruled by that system.
715 Turning to Dr Morton's evidence about section systems, he accepts that the 'fine detail' of KB's description to Tindale of how she came to have a section name makes it clear that she originally came from an area where section names were not normally allocated. He initially placed that area in the same general area as that from which Tommy Bluegum came, towards the border of Western Australia and South Australia where there was a people called 'Martu Wangka'. Although as will be seen he ultimately changed his opinion to say that it was more likely she came into Laverton at some point from the area of Bates's 'Marduwonga' Spinifex people who were found at Laverton (see at [363] above).
716 More broadly, Dr Morton's evidence refers to the general distribution of section systems in Australia which, he says, 'has a quite complex and dynamic history, with particular systems spreading in various directions and in various ways across much of the continent'. He says (Morton II para 52, footnotes omitted):
… sections were not in use about the South Australian/Western Australian border around 1930, but it is not precisely clear how far they had spread into the area mapped by Tindale as Maduwongga at that time. R. H. Mathews referred to sections being in place among what he called the 'Mt Margaret tribes' in 1906-1907, including the section 'Turraroo' that was given to KB at Laverton. At about the same time, Daisy Bates found section names operating in the following districts: 'Leonora, Malcolm, Menzies, Goongarree, Broad Arrow, Wanjaree (Gwalia), Yoolamunna (Kennedy's Soak), Bandala (Box Creek), Pinjin, Edjudina …, Ngangeree (Cane Grass [Canegrass]), and probably Kalgoorlie', although she did note a change in some of the nomenclature at Pinjin and Edjudina.
717 As has already been mentioned, Dr Morton points out that on Bates's genealogy for the Edjudina man Jurdain, everybody, including his parents, has a section name.
718 As Dr Morton notes, Goongarrie, Broad Arrow, Pinjin, Edjudina, Canegrass and Kalgoorlie are all within the Maduwongga claim area. He then expresses the following opinion (Morton II para 54, footnotes omitted):
In my opinion it is most implausible that KB was referring to parts of the Maduwongga-Nyalpa Pirniku overlap area when commenting to Tindale that she had 'no 4 class system' in her country. It is not entirely clear when the section system did arrive in the overlap area, but we can be reasonably sure it was established there at least three decades before Tindale interviewed KB's family in 1939. We can also be reasonably sure that it was established yet further south and was at least coming to be established about Kalgoorlie, where it was meeting another, different 'class' system of endogamous generation moieties with totemic identities (rainbow bee-eater and sacred kingfisher). Bates says that this system operated from '[west] and south of Kalgoorlie and Coolgardie', going north, west and south from there, but she also states that it could be readily articulated with 'the classes [four sections] north-east and east of them', because the people on either side of this divide 'have the same fundamental customs etc.'. …
719 The statements from Bates are footnoted to the book prepared from Bates's manuscript which Isobel White edited and published as The Native Tribes of Western Australia (National Library of Australia, 1985). Leading on from the statement quoted by Dr Morton, Bates says (Exh 36 pp 89-90):
At the point where the Beerungoomat and Jooamat divis[i]ons 'junction' with the classes north-east and east of them, at the divisional boundaries of both peoples, an adoption into one or the other can take place as both people have the same fundamental customs, etc., and only differ in their class divisions and marriage laws, the Southern Cross, etc., people having but the two divisions while the tribes north and east of them possess four classes. The Beerungoomat can enter the Boorong and Kaimera divisions of the Eastern Goldfields districts and the Jooamat go into the Tharrooroo and Eebarrga divisions.
720 The Beerungoomat and Jooamat appear to correspond with the 'rainbow bee-eater and sacred kingfisher' moiety divisions that were identified by Berndt (see below). Bates found them among the people whom she calls the Karratjibbin. According to Dr Morton, that grouping appears to correspond with Tindale's Kalamaia and Kalaago groups whom he located to the west and south west of the Maduwongga. In The Native Tribes of Western Australia, Bates said that this social organisation differentiated the Karratjibbin 'from every other known tribe in the West' (emphasis added) (Exh 36 p 55).
721 Counsel for the State cross examined Dr Mathieu on the statement here that the people to the north and east of the Karratjibbin possess four classes, given that this would encompass the Maduwongga claim area and so be inconsistent with her view that the Maduwongga possessed a moiety system rather than four sections. She was also taken to a map apparently prepared by Bates which showed the same thing. Dr Mathieu's response was that Bates's field notes, which also revealed a section system around Edjudina, also showed that 'the sections are not used as they would be by people who know what a section system is' (ts 590). This appears to hark back to the opinions summarised at [704]-[707] above.
722 Similarly, at p 105 of The Native Tribes of Western Australia, Bates wrote:
South and south-eastward of this section, on the Eastern Goldfields, and bordering the Beerungoomat and Joowuk peoples on their north-eastern side, one more change in class nomenclature comes in, Eebarrga being substituted for Boorgooloo. The marriage laws and laws of these people are similar to those of Peak Hill and Mt Margaret etc. sections, so that except for the change in class nomenclature, these three sections are otherwise identical.
723 Further on (p 106), Bates wrote:
The districts where the class names Boorong, Kaimera, Boorgooloo, Tharrooroo obtained, were: Leonora, Malcolm, Menzies, Goongarree, Broad Arrow, Wanjarree (Gwalia ), Yoolamunna (Kennedy's Soak), Bandala (Box Creek), Pinjin, Edjudina (the Eebarrga equivalent is also found at the two last named places), Ngangeree (Cane Grass), and probably Kalgoorlie.
724 Dr Mathieu was cross examined on the first of those passages by counsel for the MG respondent. Her response appeared to be that (ts 691):
when you look at the genealogical material, and she does it herself, the system is not operational in the proper way. They break those laws when they marry. And you got to look at the genealogies to find that. She concludes that, you know, all the societies going, you know, to hell and back, but actually she doesn't think to consider that the people may have their own local system that they're grafting these things on.
725 In cross examination by counsel for the NP respondent, Dr Mathieu did not accept the presence of a four class system at Edjudina when Bates was doing her work because, she said, that was 'I think, overshooting the mark' (ts 650). She appeared to distinguish between the assignment of sections and the use of those sections as part of a system of marriage regulation, and as quoted above relied on a distinction between systems that 'have to do with relating to desert people' and 'internal' systems.
726 However Dr Morton concludes (Morton II para 59) that it is improbable that KB's language:
actually belonged to Edjudina, an area apparently familiar with a version of four sections by about the turn of the century - although this is not to say that she could not be understood by speakers of the local dialect, or that her children did not pick that dialect up. Given the spread of sections in Western Australia, the logical conclusion to make is that, somewhat like Tommy Bluegum, she probably came into Laverton and Edjudina after traversing country between there and the Western Australian border. …
727 Citing work by a specialist in Western Desert section systems, Professor Laurent Dousset, Dr Morton says that it was likely that the section system did not reach relevant areas in South Australia until the 1920s to 1940s, diffusing into the Western Desert 'in a kind of pincer movement from the west and the northeast' so that the south eastern part of the Western Desert was the last to be affected. However how this is impacted by Dr Morton's late revision of his view that KB probably did not come from the area of the South Australian 'Martu wangka' people is unclear.
728 In Morton II, Dr Morton refers to Dr Mathieu's opinion that the mixed social system of the Maduwongga was 'an adaptation to the traditional movements of Desert people into the Coolgardie-Kalgoorlie-Ularing region' (see [704] above). He says it is 'a speculative view based on minimal data'. It is premised on the idea that when KB told Tindale that there was no four-section system in her country, she was talking about the areas from Edjudina to Coolgardie. But Dr Morton's opinion is that this was unlikely, and it is more likely that KB was talking about an area to the east of Edjudina, in or towards spinifex country. Dr Morton says that of 'particular note is KB's apparent use of the phrase "my country"', which referred to an area without sections, yet the evidence points to the Edjudina area as being one where sections were well established, at least by c. 1910' (Morton II para 100b).
729 This point is damaging to the Maduwongga applicant's case, given the weight Dr Mathieu places on both the absence of section names in KB's country and the view that KB was born at Edjudina. It is no answer to say that KB was born perhaps 30 years before Bates made the findings around 1910, when the area covered by section systems may have changed over that time. Be that as it may, KB appears to have been speaking to Tindale in the present tense, in 1939. If she was saying that there were no section names in her country, and that was not true of Edjudina, a place with which she had been associated, then she must have had in mind a different country as 'her country', likely her birth country.
730 Dr Morton refers again to Bates, as the provider of the earliest data available, as indicating the section system was established in this area by the first decade of the 20th century, and says that we do not know how long it had been there. Dr Morton sees no justification on this basis for Dr Mathieu's opinion that the kinship organisation of the people of Edjudina and Coolgardie differentiated them from their 'tribal neighbours' (Morton II para 105).
731 In the concurrent expert evidence session Dr Morton accepted that Bates's data about section systems in the claim area was confusing because it shows people (ts 435-436):
utilising what is evidently a number of different strands of systems in their relationships. … people had been adopting them from different directions, including some that were quite contradictory. And it's well-documented in anthropological literature of lots of areas where the introduction of section systems through intermarriage with neighbours has caused any amount of confusion to people.
732 Similarly in cross examination Dr Morton said that there was 'the mixing of two kinds of section system, and the endogamous moiety system from further southwest' (ts 731).
733 But for Dr Morton, the important point is that section systems had been moving into the claim area and elsewhere quite quickly through intermarriages and were in the overlap area from the earliest recorded genealogies from 1910. So if KB was born in an area that did not have section systems, that probably means, Dr Morton considers, that she was born further east in spinifex country where section systems had not yet reached.
734 The closing submissions of the Maduwongga applicant criticised Dr Morton's evidence about the dynamism of the section system because it was not based on historical data but on 20th century observations of migrating and displaced persons. But it is difficult to make much of this criticism given that 'historical data' prior to those observations is non existent. The submissions rely on passages from Bates's The Native Tribes of Western Australia as indicating that 'Bates was able to show that marriage class systems (sections, moieties, totems etc.) were in fact attached to particular regions as well as translatable from region to region' (Maduwongga closing reply para 81(f)). But it is not possible to see how Bates's observations at a particular point in time show that the system was static, and indeed this submission contradicts Dr Mathieu's view that 'adaptation' to a section system arises not just from incursion by Europeans but also from 'traditional' movement of people (see [704] above).