Native Title Holding Group
13 The Application is made by John Watson, Anthony Watson, Cyril Archer, Rosita Shaw, Rona Charles, Annie Milgin, David Banjo, Harry Watson, Joe Green and Robert Watson on behalf of the Nyikina Mangala People. The Nyikina Mangala People are persons who are descended from the named apical ancestors described in Schedule Six of the Minute.
14 The parties agree that the Nyikina Mangala People are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. On 16 November 2012, the Applicant filed an anthropological report authored by Dr Kingsley Palmer (First Palmer Report).
15 The First Palmer Report provides matters of fact and Dr Palmer's opinions, derived from those stated facts, as to the connection of Nyikina Mangala People to the areas covered by the Nyikina Mangala Application.
16 Schedule Six of the Minute includes the name of an apical ancestor, Tommy Numarid, whose name is not included in the Form 1 filed in the Nyikina Mangala Application. This does not have the effect of excluding any persons who are stated therein to be members of the native title claim group. Rather, by including the name of Tommy Numarid, the evident purpose is to include his descendants, even though they are not described as being members of the native title holding group according to the Form 1.
17 In support of the native title holding group described in Schedule Six of the Minute, the applicant has filed:
(a) a further anthropological report of Dr Palmer entitled "Report on Skinner Family's request to be included as claimants" and dated February 2014 (Second Palmer Report); and
(b) an affidavit of Jacki Lynn Cole, Principal Legal Officer, Kimberley Land Council, sworn on 14 May 2014.
18 On 20 May 2014, pursuant to orders of the Court, the applicant provided to my chambers, on a confidential basis, a complete copy of the Second Palmer Report which I have read as well as filing and serving a redacted version, as referred to in those orders.
19 Notwithstanding the limitations in the evidence relied upon by the applicant in support of this aspect of the Minute, it is jointly submitted by the applicant and State of Western Australia that it is appropriate that they provide their consent to the Nyikina Mangala Part A Determination and, relatedly, that it would be appropriate for the Court to make a determination of native title recognising the persons described in Schedule Six of the Minute as the native title holding group for the Nyikina Mangala Part A Determination Area.
20 In his second report Dr Palmer states that he has received information about Tommy Numarid from persons alive today who assert that they are his descendants and that, in summary:
(a) Tommy was from Mangala country, but moved away to the coast after witnessing a massacre, but returned after he married his wife, Kitty, at Beagle Bay;
(b) Dr Palmer's informants do not know where Tommy's country was situated, other than that it was 'in the desert country', which those informants understand to mean Mangala, while at other times some of those informants report that Tommy was from 'round the Mowla Bluff area';
(c) Tommy's daughter, Liddy, was a Nyikina person which leads Dr Palmer's informants to suggest that Tommy may have been of mixed Nyikina and Mangala descent; and
(d) in suggesting that Tommy may have been Nyikina through his mother, one of Dr Palmer's informants stated:
We never really asked about these things. We just accepted it. We never asked questions. In those days you couldn't ask questions because you'd get a hiding for being cheeky. We never knew where Tommy was born - he could have been a Nyikina man through his mother.
21 Other than the information provided by his identified informants, Dr Palmer did not identify any other historical or ethnographic material relevant to Tommy Numarid. Nonetheless, Dr Palmer did consider research collated by Professor Norman Tindale in 1953 at Derby. That information records Liddy, the asserted daughter of Tommy, as Nyikina and "of Manguel Creek". No information is provided by Professor Tindale as to Liddy's parents or the basis upon which her Nyikina identity was reckoned.
22 One senior living member of the native title claim group, Peter Clancy, is said to have known Liddy, and her daughter Patsy, and recalls them being Nyikina people who participated in ritual business. Mr Clancy was born in about 1930.
23 Dr Palmer concludes in relation to Tommy Numarid, that:
…there is both a lack of information regarding the country of origin of Tommy as well as an inconsistency in the account provided to me. Consequently I am of the view that there is insufficient evidence to provide an expert view as to where the country in which Tommy Numarid exercised customary rights and duties was located. It follows from this that I am not able to provide a view as to whether the descendants of Tommy possess customary rights to the application area through filiative links to Tommy.
Overall and based on these data I am of the view that there is insufficient evidence for me to provide a concluded view as to the country of origin of Tommy. The data I have considered supports the negative conclusion that his country was not in the vicinity of Manguel Creek but lay further to the south in what is identified by Nyikina and Mangala claimants as Mangala country. It is possible that this lay within the claim area, but there is no certainty in this regard.
It is possible that Liddy gained rights to the Manguel Creek area from her father's mother or father, but again there is no evidence upon which to base such a view. It is further possible that she gained rights to the Manguel Creek area through some form of a totemic attachment. However, there is no evidence upon which to base such a view.
…Given the lack of data as to how rights to Manguel Creek country were gained by Liddy I am unable to provide a view as to the customary content of those rights and their derivation as asserted now. It is possible that they were gained by descent (from Tommy's mother perhaps) or through some form of totemic attachment. It is equally possible that they are now asserted through historical ties to the location and the adoption by Liddy of some form of Nyikina identity.
Given that Liddy was born in about 1897, I think it reasonable to conclude that Kitty [mother of Liddy] was probably born in about 1877, and Tommy in about 1872 which is prior to the date of effective sovereignty in the region which I have judged to be was in the early 1880s. I conclude then that Tommy was likely to have been in possession of his country at or prior to the date of effective sovereignty.
24 The question of whether the descendants of Tommy Numarid should be included within the proposed native title holding group was considered at an authorisation meeting convened on 25 to 27 March 2014. Details of that meeting, including the steps taken and efforts made to notify Nyikina Mangala People and the descendants of Tommy Numarid of that meeting, are set out in the affidavit of Jacki Cole, sworn on 14 May 2014.
25 In summary, that affidavit relevantly states:
(a) prior to the authorisation meeting, the Kimberley Land Council gave notice of that meeting by, inter alia, writing both by post and email to those Nyikina Mangala People whose relevant contact details are known to the Kimberley Land Council, as well as distributing information about the meeting in person, via word of mouth, provision of written notices to a number of community organisations with a request that notice be posted on relevant notice boards and publishing a notice in the Broome Advertiser, Kimberley Echo and Pilbara Echo;
(b) the written notice for the authorisation meeting specifically invited descendants of Tommy Numarid and advised that the meeting would consider, inter alia, "[a]mending the Nyikina Mangala claim group description as currently worded in the Nyikina Mangala [n]ative [t]itle determination application based on the further anthropological work".
(c) in correspondence sent to known Nyikina Mangala People, it was also stated that "[t]he claim group will be asked to assess some further anthropological research by Dr Kingsley Palmer, and to make a decision based on this information as to whether a further apical ancestor, Tommy Numarid, should be included in the Nyikina Mangala claim group description" [original emphasis].
(d) on the first day of the authorisation meeting, 143 people attended the meeting who were entitled to vote on the basis that they were identified as descendants of an ancestor named in the Form 1 (which did not include the descendants of Tommy Numarid).
(e) those persons present at the authorisation meeting and entitled to vote at that time, decided that "[i]t is moved that the current claim group description for the Nyikina Mangala native title claim be amended to include Tommy Numarid as an additional apical ancestor".
(f) upon the decision of the native title claim group as described in the Form 1, the descendants of Tommy Numarid present at the authorisation meeting, were then entitled to vote on resolutions to be made at that meeting. Relevantly, the members of the amended native title claim group present unanimously decided that:
(i) decisions at that meeting would ultimately be made by a majority of the attendees at that meeting, with certain procedural matters first having been observed; and
(ii) the presently named persons jointly comprising the applicant were confirmed to be or continued to be authorised to act in that capacity.