Strickland on behalf of the Maduwongga Claim Group v State of Western Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 27 March 2023
• Neutral Citation: [2023] FCA 270
• Date: 27 March 2023
• Court: Federal Court

Federal Court of Australia

Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270

ORDERS

WAD 186 of 2017
BETWEEN:	MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING Applicant
AND:	STATE OF WESTERN AUSTRALIA Respondent COMMONWEALTH OF AUSTRALIA Respondent CENTRAL DESERT NATIVE TITLE SERVICES LTD Respondent (and others named in the Schedule)

order made by:	JACKSON J
DATE OF ORDER:	27 MARCH 2023

THE COURT ORDERS THAT:

1. The separate question is answered as follows: KB (the grandmother of the applicant) held rights and interests in those land and waters of the application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of the Western Desert, and not under the normative system of a distinct land-holding group of which KB's descendants are the only identifiable surviving members.

2. The Nyalpa Pirniku respondent has liberty to apply in relation to costs until 4.00 pm AWST on 10 April 2023.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Table of Contents

I. THE SEPARATE QUESTION		[1]
Some observations about the separate question		[9]
II. PRELIMINARY MATTERS		[19]
How 'Maduwongga' will be used in these reasons		[20]
Wongatha		[21]
Western Desert and the Western Desert Cultural Bloc		[25]
Terminology, spelling and names		[27]
III. THE PARTIES' CASES AND THE ISSUES ARISING		[31]
The Maduwongga applicant's case		[32]
Maduwongga laws and customs		[33]
Other matters said to distinguish the Maduwongga from Western Desert societies		[42]
The relevance of Western Desert societies, laws and customs		[45]
The respondents' cases		[50]
Whether there was a Maduwongga society		[51]
Western Desert laws and customs in the overlap area		[58]
The Maduwongga applicant's submissions in reply		[65]
IV. THE STRUCTURE OF THE REST OF THIS JUDGMENT		[67]
V. PRINCIPLES		[69]
Identifying a society		[70]
Migration		[73]
The relevance of cultural factors other than laws and customs		[74]
The asserted distinction between the ceremonial and ritual dimension and rights and interests in relation to land and waters		[79]
A society and a land-holding group are not necessarily the same		[88]
The approach to be taken to the evidence		[91]
Lay Aboriginal witnesses		[92]
Written records including ethnographic materials and expert evidence		[95]
The role of inferences		[99]
VI. THE WITNESSES		[102]
The lay witnesses		[102]
Anne Joyce Nudding		[105]
Marjorie May Strickland		[111]
Daniel Steven (Stevie) Sinclair		[118]
Hector O'Loughlin		[123]
Ivan Forrest		[124]
Cheryl Cotterill and Dora Cotterill		[125]
Elvis Stokes		[127]
The expert witnesses		[128]
Dr Christine Mathieu		[133]
Dr John Morton		[153]
VII. THE MADUWONGGA GROUP		[158]
The term 'Maduwongga'		[160]
The use of the term 'Maduwongga' in Tindale's materials		[167]
The Maduwongga applicant's evidence about the use of the term 'Maduwongga'		[181]
The evidence of other witnesses		[198]
Some observations about the Aboriginal evidence of a Maduwongga group		[209]
Evidence about the names of other groups		[213]
The group of people identified (or potentially identified) as Maduwongga		[223]
Johnny		[226]
KB		[240]
Minnie		[241]
Jimmy		[242]
Eva Quinn		[243]
Violet Quinn		[244]
Arthur Newland		[245]
Dolly Larrikin		[252]
Lena Judd		[253]
Teddy Forrest		[257]
Gertrude Morrison		[258]
Albert Newland		[259]
Joyce Nudding		[283]
Marjorie Strickland		[288]
Christine Newland		[295]
Stanley Forrest and May O'Brien		[296]
The life of KB		[297]
Why KB's birthplace matters		[298]
Lay evidence about KB's birthplace		[302]
The ethnographic records about where KB was born		[304]
Some observations on the ethnographic material		[309]
Dr Mathieu's interpretation of Tindale's materials about KB's birthplace		[318]
Dr Morton's interpretation of Tindale's materials about KB's birthplace		[350]
Resolving the evidence about KB's birthplace		[365]
Other biographical details about KB		[366]
Findings about the constitution of the Maduwongga over time		[377]
VIII. MADUWONGGA COUNTRY		[392]
Tindale's maps of Maduwongga country		[394]
The expert evidence about the location and extent of Maduwongga country		[397]
The discussion of Maduwongga country in Mathieu I		[398]
Morton I		[415]
Mathieu II		[418]
Morton II		[428]
The Expert Conference Report		[439]
The oral evidence of the experts about Maduwongga country		[440]
Observations about the expert evidence on mapping Maduwongga country		[452]
Lay Aboriginal evidence about Maduwongga country		[456]
The evidence adduced by the Maduwongga applicant		[456]
Joyce Nudding's evidence		[458]
Marjorie Strickland's evidence		[477]
Other evidence about Maduwongga country		[496]
Evidence of other persons' connections to 'Maduwongga country'		[509]
Observations about the lay evidence as to Maduwongga country		[524]
IX. MADUWONGGA LANGUAGE		[536]
Lay evidence about a Maduwongga language		[540]
Expert evidence about a Maduwongga language		[551]
Observations about the evidence concerning language		[562]
X. MADUWONGGA LAWS AND CUSTOMS		[567]
The distinctiveness of Maduwongga customs		[568]
Some broad evidence		[568]
Ritual and ceremonial practices		[585]
The evidence of Mrs Nudding		[586]
The evidence of Mrs Strickland		[599]
Other lay Aboriginal evidence about Maduwongga customs		[604]
Ethnographic and expert evidence about customs observed in the Maduwongga claim area		[611]
Observations on the evidence about ritual and ceremonial practices		[613]
Initiation in the Law		[614]
Tjukurrpa		[625]
Places of significance		[641]
Other spiritual beliefs		[657]
XI. LAWS AND CUSTOMS AS TO SECTIONS, MARRIAGE, DESCENT AND TRANSMISSION OF RIGHTS AND INTERESTS IN LAND		[664]
Section groups		[670]
Lay Aboriginal evidence about section systems		[674]
Expert evidence about section systems		[701]
Observations about the evidence concerning section groups		[735]
Laws pertaining to marriage		[743]
Lay Aboriginal evidence about marriage laws		[744]
Expert evidence about marriage and kinship organisation		[751]
Acquisition of rights and interests in country		[764]
Lay Aboriginal evidence about acquisition of rights and interests in land		[764]
Expert evidence about the acquisition of rights and interests in relation to land		[775]
Dr Mathieu's identification of territorial associations of marriage system		[776]
Consideration of Dr Mathieu's view as to territorial associations of marriage		[798]
Views of the experts as to dynamism of kinship systems		[801]
Dr Mathieu's consideration of Canegrass vocabulary		[805]
The tables of the kinship vocabularies		[825]
The conclusions that Dr Mathieu draws		[830]
Dr Morton's interpretation of the Canegrass vocabulary		[836]
Skewing in the Canegrass vocabulary		[840]
Conclusion on Maduwongga laws as to acquisition of rights to country		[845]
XII. WAS THERE A MADUWONGGA SOCIETY?		[846]
The term Maduwongga		[846]
What did KB mean when she said 'madu wongga'?		[847]
Dr Mathieu's opinion		[847]
Dr Morton's opinion		[854]
Dr Mathieu's response		[868]
Elkin's 'Mandjinda'		[875]
Dr Morton's conclusions		[884]
Conclusions		[886]
KB was not referring to a 'tribe' or other society		[887]
KB and her parents were not born at Edjudina		[893]
The 'Maduwongga' group was very small		[902]
Tindale's mapping was probably wrong		[903]
The evidence about language does not support the Maduwongga case		[912]
There is no evidence of distinctively Maduwongga laws and customs		[913]
No body of Maduwongga laws and customs in relation to land has been established		[918]
XIII. WERE WESTERN DESERT LAWS AND CUSTOMS OBSERVED IN THE OVERLAP AREA?		[926]
The Western Desert case		[926]
The relevant society for the purposes of the Western Desert case		[933]
Acquiring rights and interests under the multiple pathways model		[951]
Tjukurrpa		[955]
The asserted distinction between the ritual/ceremonial sphere and 'land tenure'		[962]
The evidence about the extent of Western Desert society		[977]
Aboriginal evidence		[980]
Ethnographic evidence		[990]
David McDonald		[990]
Daisy Bates		[991]
Anthropological evidence		[994]
Dr Morton's views		[994]
Dr Mathieu's opinions on the Western Desert case		[1002]
Dr Morton's reply		[1025]
Cross examination of Dr Mathieu		[1031]
Conclusions about the anthropological evidence		[1034]
The Maduwongga applicant's own evidence		[1036]
Whether KB came from the Western Desert		[1041]
Conclusions as to the Western Desert case		[1042]
XIV. THE ANSWER TO THE SEPARATE QUESTION		[1054]
ANNEXURE A		p 303
ANNEXURE B		p 304
ANNEXURE C		p 305
ANNEXURE D		p 306
ANNEXURE E	pp 307-311

REASONS FOR JUDGMENT

JACKSON J:

I. THE SEPARATE QUESTION

1 Marjorie Strickland and her sister, Joyce Nudding, are together the applicant in this native title claim. They contend that their grandmother, who at their request I will call KB, belonged to a group of people called the Maduwongga. On that basis, Mrs Strickland and Mrs Nudding seek a determination that they and others who are related to them hold native title rights and interests in relation to an area of land and waters in the Goldfields region of Western Australia. The area is approximately 25,473 km2, and stretches from its south-western corner near Coolgardie, Western Australia, to a north eastern boundary marked by the Edjudina Range. The claim group is comprised of the descendants of KB, whose grandchildren include Mrs Strickland and Mrs Nudding.

2 In a different proceeding, WAD 91 of 2019, another claim group, the Nyalpa Pirniku (NP claim group), seek a native title determination in their favour in respect of country which, again in broad terms, sits mainly to the north-east of the Maduwongga claim area, but also overlaps with the north-eastern third of that area. These reasons concern a separate question which is intended to determine a dispute between the Maduwongga applicant and the Nyalpa Pirniku respondent (NP respondent) which arises out of that overlap.

3 The question, which was posed in orders which Bromberg J made on 20 November 2019, is:

Did [KB] (the grandmother of the applicants in the Maduwongga Application [i.e. this proceeding, application WAD 186 of 2017]) hold rights and interests in those land and waters of the Maduwongga Application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of:

(1) the Western Desert; or

(2) a distinct land-holding group of which KB's...