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Aboriginal Land Rights (Northern Territory) Act 1976Report No. 22Mount BarklyLand ClaimReport by the Aboriginal Land Commissioner,Mr Justice Kearney, to the Minister for Aboriginal Affairsand to the Administrator of the Northern TerritoryAUSTRALIAN GOVERNMENT PUBLISHING SERVICECANBERRA 1985

© Commonwealth of Australia 1985ISSN 0815-4864ISBN 0 644 04263 XTypeset by Graphicset Pty Ltd, Mitcham VictoriaPrinted by Union Offset Co. Pty Ltd, CanberraCommonwealth of Australia copyright reproduced by permission.1996

Office of theABORIGINAL LAND COMMISSIONERSupreme CourtDarwin.30 May 1985Telephone 81 9326.The Hon. Clyde Holding, M.P.,Minister for Aboriginal Affairs,Parliament House,Canberra, A.C.T. 2600Dear Minister,MOUNT BARKLY LAND CLAIMIn accordance with s.50(l) of the Aboriginal Land Rights(Northern Territory) Act 1976 I present my report on thisclaim.As required by the Act I have sent a copy of my reportto the Administrator of the Northern Territory.Yours sincerely,W.J. Kearney

Office of theABORIGINAL LAND COMMISSIONERSupreme CourtDarwin.30 May 1985 Telephone 81 9326.Commodore E.E. Johnston, A.M., O.B.E.,Administrator of the Northern Territory,Government House,Darwin, N.T. 5790Your Honour,MOUNT BARKLY LAND CLAIMIn accordance with s.50(l) of the Aboriginal Land Rights(Northern Territory) Act 1976 I present my report on this claim.As required by the Act I have sent a copy of my report to theMinister for Aboriginal Affairs.Yours sincerely,W.J. Kearney

View of Lander River from the site Liirlpari: Photo P. Lawlessvi

viiContents ........................................................................................................................ PageHistory of the inquiry ....................................................................................................1Status of the land: Mount Barkly station ........................................................................1The claim area: location and topography ........................................................................2Written records of the claim area and the claimants ........................................................2The claimants: estates and local descent groups .............................................................. 4The claimants: social Organisation ..................................................................................6The local descent group .................................................................................................7The traditional evidence: sites, Dreamings and local descent groups ..............................10Liirlpari estate (group Al) ............................................................................................11Ngarnka estate (groups A2 and A5) .............................................................................11Yinjirrpikirlangu estate (group B1) ..............................................................................14Pawu (group Cl) ..........................................................................................................15Yarruku estate (group D1) ...........................................................................................16The effect of the traditional evidence ............................................................................18Entitlement to forage ...................................................................................................19Traditional Aboriginal ownership: formal findings .......................................................19Strength of traditional attachment ................................................................................32Living on traditional country ........................................................................................33Recommendations .......................................................................................................35Matter for comment - Advantage to Aboriginals of a grant ...........................................35Matter for comment - Detriment ..................................................................................36Matter for comment - Patterns of land usage ................................................................36Land usage: cattle station ............................................................................................36Land usage: roads .......................................................................................................37Cost of acquiring interest .............................................................................................38Summary of findings, recommendations and comments ................................................ 38Legal representatives ...................................................................................................39Consultant to the Commissioner ...................................................................................39Interpreters ..................................................................................................................39List of witnesses ..........................................................................................................39Group witnesses ..........................................................................................................39Individual witnesses .....................................................................................................41List of exhibits ............................................................................................................41Appendix 1: Location map of claim area ......................................................................44Appendix 2: Map of sites in claim area follows .............................................................44Appendix 3: Map of Dreamings in claim area follows ................................................... 44Table 1: Warlpiri social Organisation ............................................................................8

History of the inquiry1. On 12 June 1981 the Central Land Council lodged an application under theAboriginal Land Rights (Northern Territory) Act 1976 on behalf of 352 namedAboriginals who claimed to be the traditional owners of certain lands now known asMount Barkly station. A Claim Book was lodged in April 1983; the claimants stated thatthey would be ready to present their case in June.2. Directions were given to ensure that the public was given adequate notice of theinquiry and of their right to be heard. It was extensively advertised that the inquiry wouldcommence on 6 June 1983 at Willowra station.3. Over the period 6-10 June, both at Willowra and within the claim area, the claimantsgave their evidence. This related to traditional matters: their social Organisation, theircontinuing involvement with the claim area and its Dreamings, the significance of varioussites on the claim area in their mythology, and so on. Various ceremonies were observed,and ritual objects ('title-deeds') were inspected-, their significance and the role andfunction of the various participants were explained. The genealogies of the claimants weretaken and checked. Sites within the claim area were visited. The use made by theclaimants of the natural resources of the claim area was demonstrated.4. The inquiry continued at Alice Springs on 13 June when the anthropologists who hadprepared the Claim Book gave evidence of their investigations and of the history of thearea and its peoples. On 12 and 13 September 1983 at Alice Springs various materialswere submitted by the Northern Territory Government relating to roads, and stock andplant disease. My consultant anthropologist furnished her report on the claim. Thelawyers for the claimants and the Northern Territory Government then made theirsubmissions.Status of the land: Mount Barkly station5. The claim area is Northern Territory Portion No. 360 and is the subject of PastoralLease No. 634 under the Crown Lands Act (see Exhibit 3). This lease is for a term of fiftyyears commencing on I July 1961. The land is therefore alienated Crown land for thepurposes of the Land Rights Act. Such lands in general are not open to claim.6. The claimants contend, however, that all estates and interests in the claim area notheld by the Crown are held on behalf of Aboriginals and hence that their claim is properlybrought under s. 50(l)(a) of the Act.7. Pastoral Lease No. 634 has been held since 8 May 1981 by Willowra PastoralCompany Pty Ltd, a company of which the members are, and are required to be,Aboriginals (see Exhibit 413). The history of that company as far as it is relevant is set outin paras 9-21 of Mr Justice Toohey's report on the Willowra land claim. By declaration oftrust dated 4 June 1983 (Exhibit 7B) the company declared, pursuant to a resolution of itsBoard, that it held Pastoral Lease No. 634:... in trust, for and on behalf of Aboriginals being a group of Aboriginals who for the timebeing are resident upon that area of land known as Pastoral Lease No. 594 ... also known asWillowra Station and who are members of the Community which generally resides at theproperty, wherever they may be individually resident at any particular time.This wording accords with that of a declaration of trust made in relation to the land heldunder the Willowra pastoral lease (see para 21 of the Willowra report). I respectfullyagree with the reasoning of Mr Justice Toohey at paras 24-27 of that report, where hisHonour analysed the effect of the declaration and concluded that the beneficiaries of thetrust were sufficiently identified. It follows that Mount Barkly, being held on behalf ofAboriginals, is open to claim under the Land Rights Act.Page 1

The claim area: location and topography8. Mount Barkly station is a rectangle of land 2590 square kilometres in area, some 360kilometres north-west of Alice Springs by road. It is bounded on the east and south by thecattle stations Anningie and Coniston. On the west it is bounded by part of the Tanamidesert, formerly a wildlife sanctuary and now Aboriginal land following a successfulclaim. On the north it is bounded by the former Willowra pastoral lease, now Aboriginalland as a result of the Willowra claim, but still run as a cattle station. Access is gained byvehicular track from the Stuart Highway, 15 kilometres north of Ti Tree (see location mapat Appendix 1).9. The dominant features in the landscape are Pawu (Mount Barkly) in the centre, thenorthern spur of Yinjirrpikirlangu (Mount Denison) and Ngarnka (Mount Leichhardt) inthe south, while Yarlarlinji (the Lander River) runs through the claim area from south tonorth.10. Most of the land is flat spinifex scrub; the property is relatively undeveloped. Avariety of trees grow along the river bed. The average annual rainfall is about 28.5centimetres, falling mainly between October and March. Though the claim area is quitearid, the mountains provide a fairly reliable rainfall, while the prospects for groundwaterare good. Game is relatively plentiful. The land between Pawu, Ngarnka andYinjirrpikirlangu contains a large quantity of yinjirrpi (an edible bean tree). About 22 percent of the land is covered by short grass-forb and mulga pasture, and can carry three headof cattle to the square mile. Most of the rest is covered by hard spinifex, unsuitable forgrazing; however, there is some feather-top and soft spinifex which can be lightly grazed,at about one beast to the square mile.11. Exploration to date indicates that it is unlikely that mineral deposits of any economicsignificance exist within the claim area (see Exhibit 21, p. 11).Written records of the claim area and the claimants12. The first non-Aboriginal to enter the claim area was J. McD. Stuart; a copy of hisdiary note is at Exhibit 1, pp. 36-42. In 1861 he used Aboriginal wells at Patirlirri nearWillowra and at Liirlpari (White Stone well); he climbed Ngarnka (Mount Leichhardt)and passed through the countries of all the claimant groups. He found the landinhospitable (see Meggitt's Desert People, p. 17). The explorer Davidson in 1901 notedsigns of Aboriginal inhabitants just north of the claim area. Some of the prospectors in the1910 Tanami 'rush' crossed the claim area, coming from Ti Tree.13. Non-Aboriginal settlement in the region did not take place until 1923, when agrazing licence was taken up along the Lander River at Willowra. The settlement was latebecause part of the region was poor country, supplies and markets were distant and theAboriginal inhabitants resisted incursions. The claim area came under a grazing licence in1927, by which time Ti Tree, Pine Hill, Coniston and Mount Doreen stations had beenestablished for some years. The permanent non-Aboriginal presence profoundly affectedthe traditional way of life of the Aboriginal inhabitants. By 1927 all their food-producingland had been occupied by pastoralists and their cattle.14. In 1928, a traveller through the claim area noted that:Surface water is not common, but a number of native soaks, rock-holes and wells support anAboriginal population of considerable density as compared with the usual density of inlandAustralian native tribes. (M. Terry: (1930) 75 Geographical Journal at p. 221)Page 2

In fact a prolonged drought commenced in 1927 throughout the region. For example,Tilmouth from Napperby station found it necessary to occupy Liirlpari (White Stone well)from 1927, needing an extra water supply for his cattle. The competition for water becamesevere as the cattle fouled, filled in or exhausted the water holes. This exacerbated theconflict which had been developing between the pastoralists and the Aboriginals. Theconflict led ultimately to the Coniston killings in 1928, including killings on the claimarea, and the dispersal of the people from their traditional home, some for many years (seeExhibit I 1, pp. 22-7; Exhibit 28; the Willowra report, paras 46-9; and Milly Nangala'saccount in the Claim Book, pp. 55, 56).15. In 1931 J. Wickham took up grazing licences covering parts of Willowra and MountBarkly. A proposal put forward in 1935 by the Catholic Parish at Alice Springs toestablish a mission at Liirlpari (White Stone well) came to nothing. Between 1936 and1940 there was an increase in mining activity in the general region. Some of the youngmen worked for the surrounding pastoralists as stockmen. In 1941 Willowra became apastoral lease, in 1946 it was acquired by the Parkinson family. In 1950 the Parkinsonsapplied to take up what is now Mount Barkly pastoral lease-, they held the lease until 1971.During these twenty years the claimants. many of whom worked for Parkinson, had freeaccess to the land. many were born there. The two pastoral leases were run as a singlecattle operation for twenty years, the main resource centre being at Willowra.16. After the events of 1928 the Aboriginal inhabitants gradually returned to the Landerand to their traditional life-style, living off the land. Their relative isolation gave them ameasure of independence. As the pastoral properties developed, so the traditionallife-style changed. Following a three-year drought, rations were supplied at Willowra.Gradually the people formed a community at Wirliyajarrayi, the area in the vicinity of thehomestead at Willowra. The Parkinsons had good relations with them; by 1950 about 100Warlpiri/Anmatjirra were living there. Despite the changing life-style the people kepttheir traditional values, maintaining their kinship system, their traditional religiouspractices, speaking their own language and largely keeping alcohol out of the community.A school was established at Willowra. in 1969, and formal instruction in Englishcommenced.17. By 1973 the population had risen to about 130 at Willowra. In that year Willowrastation was purchased for the benefit of the community (see Willowra. report, paras 54,57). Mount Barkly station had been sold off by the Parkinsons in 1971. The Willowracommunity then set about the purchase of Mount Barkly, primarily because of theiraffiliations to that country. They also considered there would be benefits if they couldre-establish the former combined cattle operation of the Parkinsons, using the additionalpasture on Mount Barkly. After running Willowra station successfully as a cattleoperation for eight years they had generated enough funds to buy Mount Barkly. This wasthe first purchase of a pastoral property by Aboriginals without government assistance.The purchase was completed in April 1981, and the application under the Act was lodgedtwo months later.18. The purchase of Willowra in 1973 encouraged other Aboriginals with links with thecommunity to take up residence there. By 1980 there were about 270 people at Willowra.Most of the present claimants live at Willowra, and were also claimants in the Willowraland claim. Following the purchase of Mount Barkly in 1981, about sixty of the claimantsmoved from Willowra and set up a permanent camp close to the homestead at MountBarkly. The boundaries between the two pastoral leases do not accord with anymeaningful traditional boundaries; Willowra and Mount Barkly are both part of thetraditional lands of the Warlpiri people. Accordingly there is considerable overlapbetween this claim and the Willowra claim, in terms of claimants and Dreamings.Page 3

The claimants: estates and local descent groups19. The claim area is close to the traditional boundary between Warlpiri and Anmatjirraspeakers. Where that boundary ran is difficult to establish, owing to movements ofpeoples and the influx of the Warlpiri into traditional Anmatjirra areas (see para. 25 of theMount Allan report). Some writers place the boundary in the vicinity of Pawu (MountBarkly) or Ngarnka (Mount Leichhardt). The Warlpiri and Anmatjirra frequentlyintermarried and many of the claimants have both Warlpiri and Anmatjirra forebears (seethe Willowra report paras 62-6. Alice Napurrula, for example, gave her evidence inAnmatjirra (see transcript, p. 85).20. Para. 118 of the Willowra report lists eight local descent groups, numbered Al-A5,B 1, B 2 and C 1, as the traditional Aboriginal owners of Willowra. The claimants contendthat as members of five local descent groups - the Willowra groups Al; A2 and A5combined; B 1; C 1; and a group, D2, which was not a claimant in Willowra - they arerespectively the traditional owners of five areas of land or 'estates' which collectivelycomprise the whole of the claim area. Each estate is named for a major site within it; thesites are shown at the map at Appendix 2 and the Dreamings at Appendix 3. The siteswere plotted on the map as indicated in exhibit 26; from the sites I visited it appears thatcare was taken in doing so. The Claim Book (Exhibit 1) describes the estates claimed asfollows:(1) Liirlpari (group Al)21. This is in the north-west of the claim area, west of the Lander River. Nine sites arelisted in the Claim Book (Exhibit 1, p. 72). The main Dreaming is Ngatijirri (budgerigar);others are Yarla (yam) and Wardilyka (bush turkey).(2) Ngarnka (groups A2 and A5 combined)22. This estate consists of two areas, Ngarnka and Janyinpartinya. The area Ngarnka isin the south and south-east of the claim area; it includes Ngarnka (Mount Leichhardt) itselfand its environs. Forty-seven sites are listed in the Claim Book. Several Dreaming trackscross Ngarnka; the Dreamings include Wawirri (kangaroo), Warlangarrijarra (two men),Wanjiyijarra (two young men), Kinki (a demon), Kuna (excrement), Payi (wind),Yinkardakurdaku (a bird), Wujulpa (a bag used for ritual objects), Maliki (dog), Witajiti(an edible root), Nyingkilya (small, red hill snake), Ngarlajiyi (bush carrot), Wanakiji(bush tomato) and Warnakurlkurlpa (toothache snake).23. Janyinpartinya is said to be in the south-west of the claim area. to the north of thespur of Mount Denison, extending into the land held under the Mount Denison pastorallease. Two sites are listed in the Claim Book, associated with the Wanjiyijarra (two youngmen) Dreaming.(3) Yinjirrpikirlangu (group BI)24. This is also in the south-west of the claim area, around the northern spur ofYinjirrpikirlangu (Mount Denison). Five sites are listed in the Claim Book. The mainDreaming is Yinjirrpi (edible bean tree); others are Yakajirri (desert raisin), Wanjiyijarra(two young men) and Wangarla (crow).(4) Pawu (group C I)25. This large estate comprises the northern half of the claim area east of the LanderRiver and north of the range which includes Pawu (Mount Barkly). It extends to the eastof the claim area and includes an area to the south of the Pawu range. Forty sites are listedin the Claim Book. The Dreamings include Mulyuwitajarra/Jurrungkajarra (two snakes),Yawakiyi (bush plum), Pama (termite), Jarnpa (a demon), Wakati (black and red seed),Lukararra. (an edible seed), Yarla (yam), Marukurru (rock pigeon) and Wanjiyijarra. (twoyoung men).Page 4

Claimants give evidence at the site Liirlpari: Photo P. LawlessPage 5

(5) Yarruku (group D2)26. This large estate extends south and west of the Pawu range and south-west along theLander, Twenty-eight sites are listed in the Claim Book. The Dreamings includeMarukurru (pigeon), Jurlarda (sugarbag), Yankirri (emu), Warripinyi (an edible seed),Lukarrara (an edible seed), Yawakiyi (bush plum) and Jarlji (frog).27. Much of the domain of the Warlpiri is desert with poor water resources. Theirconception of land ownership reflects this ecology. To ensure adequate water, estateshave to be large; the boundaries between them are ill-defined. The claim area is relativelywell watered; accordingly it is to be expected that the estates there will be more compactthan in other Warlpiri regions, with a high density of sites. Here as elsewhere, accordingto the Claim Book, the Warlpiri conceive an estate in spiritual terms, the main frameworkbeing the Dreaming tracks; the estate is:. . . the area surrounding the named sites which lie along the Dreaming tracks of themythological beings which belong to the land-holding group. (Claim Book, p. 21)The group which owns an estate is said to comprise persons linked by a notion of descentfrom a common ancestor, 'local' in the sense that they all relate to a particular area ofland, who:...regard themselves as descendants of the mythological beings (the Dreamings) who gaveform to that land, and they possess the relevant ritual information and artefacts which are passedfrom generation to generation within the same group. These religious links confer certain rights,such as the use of the economic resources of the area, and certain responsibilities, such as themaintenance of the country through performance of ritual. (Claim Book, p. 25)28. As estates are conceived on the basis of sites and not of bounded areas, they are notnecessarily discrete; so, for example, where different Dreamings of different groupstraverse the same land, the estates of those groups may overlap. Each group is, however,associated with a particular site, uniquely important to it, and usually the start or finish ofa Dreaming track.29. While many Dreaming tracks relate only to sites wholly within an estate, there arenumerous Dreaming tracks with sites in several estates within the claim area (seeAppendixes 2 and 3). In the latter case, the claimants contend that any one of threesituations may obtain, depending on the Dreaming; compare the discussion at para. 96 ofthe Warlmanpa report. First, the Dreaming may be 'handed over' from the first group tothe second and so on. The Dreaming and its sites within each estate then become theproperty of the owners of that estate; thus the Wanjiyijarra Dreaming is successivelyhanded over to, and becomes owned by, the B 1, A2 and A5 combined, and C I groupswith respect to its sites within their respective estates. Second, and at the oppositeextreme, a Dreaming and its sites within other estates may remain the property of thegroup within whose estate the Dreaming originated; thus the Warnakurlkurlpa Dreamingand its sites within Pawu (group Cl) estate are said to remain the sole property ofcombined groups A2 and A5, the owners of Ngarnka estate. Third, the owners of theestate within which a Dreaming originated may still own the songs which relate to thatDreaming's sites within the second estate, but such ownership does not carry with it theownership of those sites. Group D2 is therefore said to own the Jarlji Dreaming and thesong relating to its site Tirri within Pawu (group C 1) estate, but not to own that site or landwithin that estate.The claimants' social Organisation30. The social Organisation of the claimants is intimately linked with their system ofland tenure. However, it is identical to that described in paras 72-84 of the Willowrareport and paras 24-30 of the Mount Allan report, so it is sufficient to sketch it brieflyhere.Page 6

31. The claimants are of mixed Warlpiri and Anmatjirra ancestry. Most of the claimarea is within what was traditional Warlpiri country. The majority of the claimantsidentify as Warlpiri, and the names used for subsections and other social and kinshipterms, and the names for the sites, arc Warlpiri.32. Their system of kinship is of the 'Aranda' type. They distinguish four lines ofdescent, using different terms for each of the four grandparents. They recognise two basicdivisions of kin. The first divides kin into two generation levels: in one level are thepeople of one's own generation and those of alternate generations; in the other are thepeople of adjacent generations. This can be seen from para. 34 and Table 1. The seconddivision of kin distinguishes between one's own patrilineal kin and the patrilineal kin ofone's spouse or potential spouse. The rule of marriage is that a man preferably shouldmarry a woman who is counted as his second cousin, that is, a woman classified as hismother's mother's brother's daughter's daughter. but not his actual MMBDD. His secondchoice for marriage should be a woman classified as his cross-cousin, that is, as hismother's brother's daughter.33. The claimants use a system of social classification which classifies all persons intoone of eight subsections; this provides a 'ready reckoner' for the system of kinship andmarriage mentioned above. All persons in a named subsection, or 'skin', are considered tobe brothers and sisters to each other. Various types of kin are classed in differentsubsections; for example, children of women are in a different subsection to that of theirbrother's children. Other social divisions are also recognised. Each of four father-childpairs of subsections is grouped as an unnamed patri-couple; these four patri-couples aregrouped in twos. to form two exogamous patrimoieties of society.34. This complex system is shown diagrammatically in the model in Table 1, whichshould be viewed as a cube, with the plane P1-P3 at the front, P4-P2 at the back, andP1 -P4 and P3-P2 at the sides. Patri-couples P1 and P21 form one moiety of society, P3 andP4 the other. As to the two generational levels mentioned in para. 321, 'It can be seen, forexample, that the paternal grandfather of a Japaljarri will also be a Japaljarri, as will hisson's children, while his father and his children will be Jungarrayi. In Table 1 the foursubsections Japaljarri-Jakamarra-Jampijinpa-Japangardi constitute one generation-levelof kin, the other four subsections constituting the other level. As to distinguishingpatrilines for purposes of marriage, it can be seen that while the patrilineal kin of aJapaljarri will be within the N/Japaljarri-N/Jungarrayi (P1) patri-couple, the patrilinealkin of his first choice in marriage will be members of the N/Jakamarra-Na/Jupurrula (P3)patri-couple, in the moiety opposite to his own moiety. It can also be seen that his secondmarriage choice would be a Nampijinpa, whose patrilineal kin are to be found within the(N)patri-couple, also in the opposite moiety.The local descent group35. The claim is presented by the five local descent groups listed in para. 20. Thegeneral criterion for membership of each group is set out in para. 27. The actualcomposition of each group is ascertained by determining who may fairly be said to be itsmembers, on the evidence presented. For such a group to qualify as traditional ownersunder the Act, the members must establish that they have common spiritual affiliations toa site on their traditional lands and that those affiliations are such as to place the groupunder a primary spiritual responsibility for the site and its estate.36. Over the course of the inquiries into land claims the tendency has been for thecomposition of the local descent group to be widened; for a review of this process seeExhibit 22, pp. 4-13. For example, in the Borroloola report, in 1978, the group was seenas constituted solely by the members of a patrilineal clan (miniringgi or kirda); in the CoxRiver report, in 1984, it was seen as also including the children of daughters of thePage 7

Table 1: Warlpiri social OrganisationKinship structure of the Warlpiri, showing lines of patrilineal descent, the fourpatri-couples P1 to P4, and the eight subsections; 'preferred' (first choice) marriages areshown by equals sign. A Japaljarri is taken as an example, and his important kin andmarriage links are named.Page 8

patriline (junggayi or kurdungurlu), children of senior male junggayi (junggayi or 'secondgeneration kurdungurlu'), and certain children of female junggayi (dalnyin). Thecomposition of the group in each claim, however, depends on the evidence presented inthat claim. As Toohey J. said in the Willowra report:The matter should not be approached with some preconceived model in mind to which theevidence must accommodate itself. Rather it is a matter of the conclusions to be drawn from theevidence. (para. 89). . . the concept of a local descent group is flexible . . . it depends upon the relationship ofpeople to each other and how they see that relationship. (para. 98)37. In the Claim Book the local descent group is said to comprise four categories ofpersons: kirda, who are members of the group by descent through their father's patriline,kurdungurlu, who trace through their mother's patriline-, second Generation kurdungurlu,tracing through their father's mother's patriline: and persons claiming membershipthrough the 'jurdalja' relationship, tracing descent through their mother's mother'spatriline. On this basis it can be seen from Table 1 that an individual Japaljarri, forexample, tracing descent through his four Grandparents, may be a member, in differentcapacities, of four different local descent groups the kirda of which respectively belong tothe four patri-couples. He is a kirda for the P1 group, kurdungurlu for the P4 group,second generation kurdungurlu for the P3 group, and a member of the P2 group through hisjurdalja relationship. The categories of kirda, kurdungurlu and second generationkurdungurlu are established by the evidence in this claim and have been fully discussed inearlier reports (see, for example, paras 73-8 of the Willowra report, paras 44-9 of theKaytej, Warlpiri and Warlmanpa report, and paras 28, 30, 31 and 41-3 of the MountAllan report, as well as transcript, pp. 98, 144, 171, 194-5. The discussion of dalnyin inparas 39, 64 and 65 of the Roper Bar report and paras 21, 22, 24 and 48 of the Cox Riverreport bears upon the jurdalja relationship raised in this claim, as does the case of BeetalooBill Jangari (a third generation kurdungurlu), discussed at para. 111 of the Warlmanpareport. The category merits some discussion.38. In the Claim Book the word 'jurdalja' is said to connote 'in-laws', particularly'wife's mother' and 'wife's mother's brother', although it also connotes 'mother'smother'. It can be seen from Table 1 that, for example, the mother of the wife of aJapaljarri (P1 patri-couple) should be a Napanangka whose patriline is in the P2patri-couple, while his own mother's mother should be a Napangardi, her patriline alsobeing in the P2 patri-couple. The two patri-couples P1 and P2 jointly constitute a moietyof society. The jurdalja relationship described at pp. 32-4 of the Claim Book is arelationship between local descent groups in the context of a discussion of the 'incompletefusion' of groups; it is said that the kirda of groups which belong to the two patri-coupleswhich together constitute a patrimoiety, such as P1 and P2, may be in a jurdaljarelationship to each other. Here, the connotation is clearly one of 'in-laws'. We areconcerned, however, with an individual's link to country, not with relationships betweengroups. It was argued that because the kirda of two such groups refer to each other'scountry as 'jaja' ('mother's mother'), the term 'jurdalja' covers both 'mother-in-law'relationships and 'mother's mother' relationships. The analysis in the Claim Book isdifficult to follow but the matter was clarified by Dr Wafer in evidence, when he statedthat when discussing relationships to country, people emphasised the meaning of jurdaljaas referring to links through mother's mother, while emphasising the mother-in-lawmeaning when discussing relationships between countries (transcript, pp. 198-9). DrWafer stated that when tracing links to a group through descent:. . . people will trace genealogical links through any of their four grandparents . . . [the link]through their mother's mother . . . would put them in a jurdalja relationship. (transcript,p. 194)Page 9

Dr Wafer considered that the extent to which a 'more distant' link such as a jurdaljarelationship would be relied upon in a given claim would depend on the claimant'sresidence within a community and involvement in its ceremonial life, as well as suchfactors as place of conception, place of birth, place of death of a close relative and place ofinitiation. He concluded:People will use all these factors to assert a link to the particular local descent group and the linkmay not be strictly genealogical, although it tends to be rationalised in terms of genealogy. . . .Even if they do not have a strictly genealogical link with that country for other reasons then theywill assert a quasi-genealogical link through one of those four descent principles. (transcript,pp. 194-5)39. Certain matters are clear. Persons to whom the kirda of a local descent group are in ajurdalja (mother's mother) relationship have a genealogical link to that group; Table 1shows how a Japaljarri has such a link to an estate the kirda of which include his mother'smother and are in the P2 patriline. Applying the general principle, adopted in earlierreports, that a local descent group may be recruited on a principle of descent deemedrelevant by the claimants, persons to whom the kirda of a group are in a jurdalja (mother'smother) relationship may qualify as members of that group, provided the evidence in theparticular claim shows that the jurdalja relationship is one which the other claimantsconsider is relevant to recruitment to the group. In that respect, the evidence in this claimgives rise to three problems.40. First, there was very little evidence from the claimants to show that they consider ajurdalja relationship is relevant to recruitment to a group. The only such evidence relatedto Molly Nungarrayi's claim to be included in group B 1, discussed at para. 66, andpossibly to Peggy Napangardi Woods's claim to be included in group A2 for Ngarnka,discussed at para. 58. No men claimed to be included in any claimant group on the basisof a jurdalja relationship, although Toby Japangardi and Sandy Japangardi, who are insuch a relationship to Liirlpari (group AI estate), sat with the claimants for that estate.Second, the Claim Book did not deal with the role of jurdalja members in the carrying outby the group of its spiritual responsibilities towards the estate; compare the Cox Riverreport, para. 48. The only evidence from the claimants on this aspect came from MollyNunggarrayi, and was unclear; see para. 66. Third, the list of claimants in the Claim Bookdoes not distinguish persons claiming membership through the jurdalja relationship, and itis not clear how many there are or where they are included. According to the amended listof claimants (Exhibit 16) only Peggy Napangardi Woods claims on a jurdalja basis (inrelation to group B 1).41. While the definition of 'traditional Aboriginal owners' in the Act is flexible andresponsive to the situation of the claimants in each particular claim, findings have to bemade in the light of the evidence presented. In my opinion the lack of a reasonable amountof cogent evidence from the claimants to support the proposition that the jurdaljarelationship is a relevant principle for recruitment to a local descent group means that thatgeneral proposition cannot be accepted in this claim. Claims for inclusion in a groupwhich found on a basis other than as kirda, kurdungurlu and second generationkurdungurlu established by the evidence are to be dealt with on the evidence presented, onthe particular facts.The traditional evidence: sites, Dreamings and local descent group42. I turn to the evidence supporting the claims to each of the five estates referred to inparas 21-26. The genealogies of the claimants for all the estates are set out in Exhibit 12;the claimants are listed in Exhibit 16. The genealogies of all the claimants were examinedand tested during the hearing and by the anthropologists.Page 10

(1) Liirlpari estate (group A1)43. Some twenty-two of the senior male claimants for this estate gave evidence as agroup-, the main speakers appear in the list of witnesses at the end of this report.44. They stated that the kirda for this estate were N/Jungarrayi and N/Japaljarri (the P1patri-couple in Table 1), the kurdungurlu being N/Jampijinpa and Na/Jupurrula, from theP3 and P4 patri-couples respectively. These subsections were mentioned clearly as ashorthand description of actual kin. The claimants explained that kirda held countrythrough their fathers, and kurdungurlu through their mothers. Jimmy Jungarrayi, kirda,said that second generation kurdungurlu would be N/Jangala and N/Jakamarra (from theP4 and P3 patri-couples). Bigfoot Jack Jangala placed himself in that category, describinghimself as 'half kurdungurlu' and tracing his membership through his father's mother,who was kirda. Witnesses gave examples of the inheritance of status by reference to theirown position and that of their children. As to roles in ceremony, it was said that malekurdungurlu had to clear the ceremony place, paint the kirda and check that they made nomistakes in the dance. Young men were initiated and taught the 'business' by the oldermen, as they themselves had been taught.45. Various Dreamings for the estate were named, and their tracks delineated byreference to sites. The track of Ngatijirri was traced from this estate to Patirlirri in thenorth, its sites Ngatijirriparta, Karuwarranyi, Kuna, Pirdarrimulyu and Murtumurtu beingnamed and marked on a map (see Exhibit 10A8 and Appendix 2). The track of thetravelling Dreaming Jarlji was identified, and its sites at Tirri and Liirlpari located; so toowith the Dreaming Puranyi (a tree) and its site Wanngardi. Liirlpari was also named as thesite for the Yarla Dreaming. Other sites not marked on the site plan at Appendix 2 werenamed in evidence. This is common in the land claims; see the explanation by Dr Wafer attranscript, pp. 192-3.46. A site visit was made with twenty-six male claimants led by Jimmy Jungarrayi toLiirlpari in the Lander River, certain ritual was observed, part of a myth was related and aritual object relating to that site was displayed and its significance explained. The sitesNgatijirriparta and Tirri were also viewed (see Restricted Exhibit 24).47. Some eleven of the female claimants to this estate gave evidence as a separategroup. The names of the six who spoke for the group are in the list of witnesses.48. They identified the estate's kirda and kurdungurlu by reference to the samesubsections as had the men, and in similar fashion traced the inheritance of status, thekirda indicating that their own children were kurdungurlu.49. The myth of Ngatijirri was related. Its track was identified in detail, twenty-one sitesbeing named and located (see Exhibit A7). The claimants explained that both kirda andkurdungurlu women 'look after country', and that this is effected by carrying outceremonies at the sites, such as the Yawulyu for Ngatijirri. A Yawulyu is fully describedat the annexure to Exhibit 22; it combines singing, dancing, the wearing of body designsand use of ritual objects, and celebrates the activities and sites of the Dreamings whoformed the land and gave order to the world. The claimants taught their children thedances and took them out 'visiting the country'.(2) Ngarnka estate (groups A2 and A5)50. Some nine of the senior male claimants in Group A2 gave evidence as a group; themain speakers are in the list of witnesses. Their evidence related solely to the Ngarnkaarea referred to in para. 22.Page 11

Male claimants give evidence: Photo P. LawlessPage 12

51. They stated that the 'skins' for the kirda for this area are N/Japaljarri andN/Jungarrayi, the kurdungurlu being Na/Jupurrula and N/Jampijinpa. The kirda take thecountry from their father's father, the kurdungurlu from their mother. This inheritance ofstatus was illustrated by reference to their own children. For example, Mick Japaljarriclaimed as kirda and identified his daughter Nessie Nungarrayi as kirda and her sonWarren Jampijinpa as kurdungurlu (see transcript. p. 29).52. They identified Wawirri (the Kangaroo) as the major Dreaming for the Ngarnkaarea, others being Ngarlijinyi and Wanakiji. They named and located thirteen sites forWawirri (see Exhibit 10A1). These sites included Ngapantamarrangi, Yanakartinji,Kartiji, Ngamurulungu, Kunanyirri, Yakuku, Yurlparalyungu, Wayipikirlangu andNgapurla in Appendix 2.53. In the presence of some twenty-five of the adult male claimants from both group A2and group A5 I observed certain ground paintings and ritual objects related to Ngarnkaand Janyinpartinya and had their meaning and that of certain songs commemoratingWawirri explained (see Restricted Exhibit 24B. pp. 2-4, and Restricted Exhibit 30,pp. 1-12). The travels and activities of Wawirri were Graphically illustrated andexplained.54. The claimants stated that ceremonies are carried out at the sites. The kirda dance; thekurdungurlu clear the site, paint the kirda and check that the kirda make no mistakes inceremony. Both kirda and kurdungurlu look after the sites and teach the 'business' to theyoung men.55. Members of the Yarlpajanti group gave evidence separately (see List of witnesses).Yarlpajanti is a site said to be on Coniston. The Yarlpajanti group were said to be in a'company' relationship with group A2. Willy Jungarrayi, claiming as kirda for Ngarnkaand Yarlpajanti. said that the members of group A2 were his grandfather's family. Theevidence was not clear, but it seems that this may be an example of the incomplete fissionof a group which formerly comprised both group A2 and the Yarlpajanti group. Thiswould explain the evidence of Malcolm Jampijinpa that he is 'not really kurdungurlu' forNgarnka, though he is kurdungurlu for Yarlpajanti. I consider that the evidence wasinadequate to demonstrate this group's spiritual responsibility for a site on Ngarnka. Itwas, however, clear from their participation in the ritual described in Restricted Exhibit24 that they are in a ceremonial alliance with group A2.56. Men from group A5 gave evidence as a separate group, claiming the areaJanyinpartinya. The main speakers are in the list of witnesses. They said that the 'skins'for the kirda for Janyinpartinya were also N/Japaljarri and N/Jungarrayi. Again, theinheritance of status as kirda or kurdungurlu was illustrated by reference to their ownchildren and grandchildren. Willy Jupurrula, kurdungurlu, said that the members of groupA5 were 'all family, all together' with group A2 and were kurdungurlu for bothJanyinpartinya and Ngarnka.57. The women from groups A2 and A5 combined to give their evidence. Six spoke forNgarnka and two for Janyinpartinya (see List of witnesses). Their evidence as to the,skins' for the kirda and kurdungurlu for Ngarnka accorded with that of the men and theygave similar illustrations of the inheritance of status. The Dreamings for Ngarnka wereidentified as Ngarlajiyi and Wanakiji. They located on a map (Exhibit 10A2) nine of thesites on the tracks of these Dreamings, including Kartiji, Lirrangarnugarnu, Wararri,Ngapurla and Kunanyirri in Appendix 2. They claimed ownership of the songs, women'sbody painting and dances for these sites. Both kirda and kurdungurlu were said to dance inthe Yawulyu, a women's ceremony carried out, as Bunny Napurrula, kurdungurlu, put it:Page 13

So we can hold the country . . . we are all the time singing. (transcript, p. 54)I attended a Yawulyu for Ngarnka and Yinjirrpikirlangu; the proceedings are explained attranscript, pp. 17-24, and in detail in Restricted Exhibit 27B. The Ngarnka Yawulyuconcerned the travels of Ngarlajiyi from Ngarnka to Yankirri.58. One of the claimants for Ngarnka is Peggy Napangardi Woods, daughter of NellieNapurrula Woods, kurdungurlu for Ngarnka. She explained part of the Yawulyuceremony relating to Yinjirrpikirlangu and described two of the Dreamings. She did notsay that her claim for inclusion in group A2 was on the basis of a jurdalja relationship. Shehas a genealogical link to group A2, resides at Willowra, participates actively inceremony, is knowledgeable about the estate and its sites and is accepted by the otherclaimants as a member of the group. In those circumstances I consider she is entitled to beregarded as a member of the group. Her evidence does not support a contention that ajurdalja relationship is sufficient qualification for membership, but supports Dr Wafer'sopinion as set out in the latter part of para. 38.59. It was conceded that group A5 does not have sites on the claim area; it is notnecessary that they should. More importantly, it was conceded that they were included inthe claim because they had a 'company' relationship with group A2; see Dr Wafer attranscript, p. 190. The evidence from the kirda for group A5 and from Restricted Exhibit24 pointed to the areas Ngarnka and Janyinpartinya as possibly having been held in thepast by a single group and a process of group fission having taken place (see alsotranscript, pp. 54, 55). In the result, however, the evidence is insufficient satisfactorily toresolve the status of group A5 and their claim to Janyinpartinya.(3) Yinjirrpikirlangu estate (group B1)60. Six of the senior men of group B1, named in the list of witnesses, gave evidence as agroup. Albie Japangardi, a member of Willowra group B2, which was put forward asbeing in a 'company' relationship with group B1, also sat with the group but declined tospeak; no evidence was adduced of any such 'company' relationship.61. The B1 men said that the 'skins' for the kirda for Yinjirrpikirlangu wereN/Japangardi and N/Japanangka, and for the kurdungurlu N/Jakamarra and N/Jangala.The kirda took the country through their father's paternal line, and the kurdungurluthrough their mother's paternal line. Various family members were named, and identifiedas either kirda or kurdungurlu members of group B 1. The Dreamings for Yinjirrpikirlanguwere I identified as Yinjirrpi and Wanjiyijarra, their tracks were referred to and eight siteswere named and marked on a map (see Exhibit 10A3). The sites included Ngamtipikipari,Yurlpaningi and Witajiti in Appendix 2. The evidence was that ceremonies are conductedand young men are initiated; the role of kurdungurlu in ceremony was described.62. In a restricted session at Wirliyajarrayi, I inspected certain ritual objects relating tothis estate and had their meaning explained (see Restricted Exhibit 24).63. Eleven of the female kirda and kurdungurlu members of group B I gave evidence atMount Barkly as a group (see List of witnesses). With them were Peggy Napangardi andMolly Nungarrayi.64. The evidence of the women on the inheritance of status as kirda and kurdungurluand as to the correct 'skins' for Yinjirrpikirlangu accorded with that given by the men. Itwas illustrated by examples from their own families.65. Peggy Napangardi claimed to be kirda for Yinjirrpikirlangu as well as Yanginji, theestate of group B2, on the basis that her father was kirda for both of those estates. He doesnot appear in the list of claimants for Yinjirrpikirlangu or in the list of members of groupB 1 in the Willowra report, where he is listed as a kirda member of group B2. PeggyPage 14

Napangardi was very knowledgeable about Yinjirrpikirlangu and took a prominent part inI giving evidence and identifying, Dreamings and sites. I witnessed her participation in aYawulyu for the estate (see transcript, pp. 22, 23). She is accepted as a member by theother members of group B I and was included as a kirda member of the group in theWillowra report. I consider she is properly so included in this claim.66. Molly Nungarrayi said that she held Yinjirrpikirlangu through her 'jaja' (mother'smother), who was kirda. Thus her claim was squarely based on the jurdalja relationshipdiscussed at paras 38-41. Her role in Yawulyu for this estate did not clearly emerge: itseemed that she could not dance for the estate, she could take part in singing the songs forthe sites and in applying body paint to the dancers. Her claim for Inclusion turns largely onthe proposition that the jurdalja relationship constitutes as such an entitlement to groupmembership. There is insufficient evidence in this claim to establish that generalproposition as a principle of descent deemed relevant by the claimants (see para. 41). Herclaim to membership of group B I cannot be accepted. Clearly she has a close connectionto group B 1. in fact the evidence shows a close connection between members of allclaimant groups. Professor Hamilton has noted:. . . the number of times that evidence was brought forward indicating that although the Claimwas presented in terms of discrete countries and particular local descent groups, the people inthis area do think of themselves as 'one family', interconnected at many levels . . . there is asense in which all members of the Willowra and Mount Barkly community generally feel thatthey have collective rights differentiating them from other groups. (Exhibit 22, p. 23)See also the discussion at transcript, pp. 200-1. and the detail in Restricted Exhibit 27B.67. The women identified thirteen sites associated with Yinjirrpi, both inside andoutside the estate, and marked them on a map (Exhibit 10A9). These included Laardi,Murtumurtu. Yarluyarlu and Kuna in Appendix 2. They named as other Dreamingsassociated with the estate Marningkiji (conkerberry), Yakajirri (desert raisin) andYawakiyi (bush plum), indicated their tracks and named several of the sites. The roles ofkirda and kurdungurlu in the Yawulyu were explained; as mentioned in para. 571attended a Yawulyu for this estate, which focused on the ancestral being Malpa, whotravelled from Yinjirrpikirlangu to Yankirri. They said that ceremonies are stillperformed. As Peggy Napangardi put it:We still keep the Yawulyu and we teach the children. (transcript, p. 164)(4) Pawu (group C1)68. Seven of the senior men of group C1 gave evidence as a group (see List ofwitnesses). They said that the 'skins' for kirda for Pawu are N/Jampijinpa and N/Jangala,the kurdungurlu being N/Japaljarri and N/Japanangka. The mode of inheritance of statusas kirda or kurdungurlu was explained and illustrated by examples of family members.They identified the estate's Dreamings as Warna (snake), Wardilyka (bush turkey),Marukurru (rock pigeon), Lukararra (an edible seed), Yinjirlipurrunyu (a cicada species)and Yarla (yam). They marked on a map (Exhibit 10A4) some twenty-six sites north ofthe Mount Barkly range, mainly relating to the Snake Dreaming. These include twenty ofthe sites shown at Appendix 2, from Yarrangkarrpa in the west to Puurnu in the east, andWirangarrinyungu in the north to Munkupurulyu in the south. It became clear that thesewere a sampling of the sites in the estate and that the claimants were familiar with theother sites and Dreamings referred to in the Claim Book. Both kirda and kurdungurluregularly visit the sites. Ceremonies are performed there and young men initiated.69. When asked whether the sites and the Snake Dreaming belonged to the kirda, or tothe kurdungurlu, or to both, Johnny Martin Jampijinpa replied:That belong to kirda. Kurdungurlu only just looking after. (transcript, p. 77)Page 15

It was nevertheless clear from the evidence and from its presentation by kirda andkurdungurlu together that as in the Willowra claim, most of the claimants considered thatboth kirda and kurdungurlu should be recorded as those responsible for the estates andsites. As was pointed out in para. 105 of the Willowra report, answers depend upon theway in which questions are framed.70. Twelve of the female claimants to membership of group C1 gave evidence as agroup, accompanied by two women from other groups (see List of witnesses). Theirevidence as to the 'skins' for kirda and kurdungurlu and as to the inheritance of status askirda or kurdungurlu accorded with the men's evidence. Illustrations were given fromtheir own families.71. Mollie, Maudie and Rosie Nungarrayi, very senior women, claim membership ofthis group as second generation kurdungurlu, on the basis that their father's mother, aNangala, was kirda. The other claimants agreed that this was so. The three women play asignificant part in the ceremonial life of Pawu (see pp. 3 and 6 of the description of aYawulyu for Pawu which I witnessed, in the appendix to Exhibit 22, and transcript,pp. 196-7). I accept that they are members of group C 1. Their case affords an example ofthe interconnections referred to in para. 66: two of them married a Jangala, kirda for thisestate, and are the mothers of several of its kirda.72. The Dreamings for the estate were identified as Warna (snake), Ngurlupardu (asmall seed), Lukararra and Warripinyi (an edible seed). Twenty sites for Warna werelocated on a map (Exhibit 10A10), including seventeen sites in Appendix 2 ranging fromYinjirlipurrunyu in the west to Warlanparrngi in the east, and Liwirringkiwarnu in thenorth to Munkupurulyu in the south. Evidence was given that the sites were regularlyvisited and that Yawulyu was performed for Warna. As Molly Nungarrayi put it:. . . got to dance it to keep it going. (transcript, p. 176)The story of Warna is given in Restricted Exhibit 27A.73. The evidence was that kirda and kurdungurlu take part in both dancing and singingin the Yawulyu. This was clear from the Yawulyu for Pawu which I observed anddescribed at transcript, pp. 179-82. See also the detailed description in Restricted Exhibit27A. I agree with Professor Hamilton's view that the ceremony highlights theinterdependence of members of the group and that each performance is related to specificsites in a specific estate (see the appendix to Exhibit 22).(5) Yarruku estate (group D2)74. Seven women claiming membership of group D2 gave evidence as a group (see Listof witnesses). They identified the 'skins' for the kirda for this estate as N/Jakamara andNa/Jupurrula, while the kurdungurlu are N/Jungarrayi and N/Japangardi (cf. Table 1).The inheritance of status as kirda or kurdungurlu was illustrated by reference to their ownfamily members. The kirda were said to take the country from their father's father, and thekurdungurlu from their mother's father.75. The Dreamings for the estate were identified as Wajinpu (perentie, the largegoanna), Wardingi (witchetty grub), Walpajirri (bandicoot) and Jurlarda (sugarbag). Thethree sites on the Dreaming tracks of Walpajirri, Wajinpu and Wardingi were identified asYarruku (a site on Coniston), Janjipi and Lakinyi; the latter two were marked on a map(Exhibit 10A5) and appear at Appendix 2. The women said they performed ceremoniesfor these Dreamings, to ensure the increase of the species. This function is carried outtoday. As May Napurrula, kirda, put it:All right, we do the dancing and we, do the Yawulyu, we do the body designs, all the time.(transcript, p. 90)76. The respective roles in ceremony of kirda and kurdungurlu were explained: bothtake part, but the kurdungurlu are responsible to see that all is carried out correctly.

Female claimants give evidence: Photo P. LawlessPage 17

77. Seven men spoke for the male claimants (see List of witnesses). Their evidence as tothe 'skins' for kirda and kurdungurlu and the way in which status is transmitted agreedwith that of the women; they gave illustrations of these matters. Thus, BismarckJapaljarri, claiming as second generation kurdungurlu, said:Yes, she was kirda, my father's mother . . . She was belonging to Yarruku. (transcript, p. 98)78. They identified the estate's Dreamings as Jipilyaku (water birds), Marukurru(pigeon), Kalwa (crane), Wanta (sun), Warna (snake), Pili (digging scoop),Karlangujarraparnta (scorpion), Jurlarda (sugarbag), Yankirri (emu) and Yukarrija (aseed). The sites for many of these Dreamings are south of the claim area. The MountBarkly range broadly divides this estate from Pawu in the north (group Cl). The menlocated on a map (Exhibit 10A6) nineteen sites on the tracks of Yankirri and Marukurru,ranging north from Yarruku in Coniston to Pawu; nine of these are shown at Appendix 2,from Laardi in the south to Pirdaparntakurlangu in the north, and Yarraparrparrku in thewest to Munkupurulyu in the east.79. Benny Jakamarra, kirda, said that only the kirda had the names and songs for thesites (see transcript, p. 112). He said that the kurdungurlu work, by applying the bodydesign of the country to the kirda. Both sing, but only the kirda dance. The kurdungurluapproach the sites first, and clean them up. For similar reasons , - those in para. 69 I amsatisfied that both kirda and kurdungurlu constitute the relevant local descent group andthat the members have common spiritual affiliations to the sites.80. I attended a restricted session with the men at which a ritual object was displayedand its significance explained (see Restricted Exhibit 24).81. Paddy Jakamarra, from the Warntaparri group at Willowra, sat with the claimants.His group was put forward as being in a company relationship with group D2. However,the responsibilities of that group for the estate were not explained, although clearly thereis a close relationship (see Restricted Exhibit 24).The effect of the traditional evidence82. The evidence from the claimants for the five estates, discussed in paras 43-81,generally supports and establishes the claims set out in the Claim Book and summarised inparas 20-9. However, as indicated in paras 55 and 59 the claims by the Yarlpajanti groupfor inclusion as owners of Ngarnka, and by group A5 to traditional ownership ofJanyinpartinya, were not established. It appeared from the evidence that that part ofJanyinpartinya within the claim area also falls within Yinjirrpikirlangu. claimed by groupB 1. It is to be noted from the Claim Book, pp. 83 and 85, that the two sites inJanyinpartinya within the claim area, Kajutarriwarnu and Yurlpaningi, are also locatedwithin Yinjirrpikirlangu, and are said to be held jointly by groups A5 and B I. In theresult, however, group B1 established its claim, but group A5 did not. The evidence alsosupports and establishes the general propositions as to the structure of the claimants'social Organisation, set out at paras 30-4.83. I am satisfied from the evidence that the members of the claimant groups Al, A2,B1, C1 and D2 have common spiritual affiliations to sites within the respective estatesthey claim. Those affiliations are expressed in ritual. I am also satisfied that these estatestogether encompass the whole of the claim area. I am further satisfied that thoseaffiliations are such as to place each of those groups under a primary spiritualresponsibility for those sites and for those estates. It is clear from the history and theevidence that Aboriginal people in this region have retained largely unbroken theirtraditional links with their land. They have a great depth of spiritual knowledge about theircountry and they have led and continue to lead an active and full ceremonial life.Page 18

Entitlement to forage84. A considerable amount of evidence was adduced from both men and womenclaimants to show that the natural resources of the whole of the claim area are used as ofright by the claimants and also by the members of the communities at Willowra andMount Barkly. Thus, Benny Jakamarra, of group D2, said that when they visited the sitesthey hunted and brought back 'bush tucker' (see transcript, p. 114). Lucy Nampijinpasaid:We go around visiting our country . . . We find goanna, we find bush potato, desert raisin wefind. We cat them. We take it right back when we go home. (transcript. pp. 177-8)It is unnecessary to multiply the many references in the evidence to foraging; several arecollected m Exhibit 23. The witnesses were unanimous that they need no permission fromanyone to forage over their traditional lands. They could give strangers permission tohunt, but if such people had no permission, then, as Lucy Nampijinpa put it:We would hunt them away. (transcript. p. 178)Among the animal and plant species which were identified as food were kangaroo,goanna, witchetty grubs, yarns and sugarbag. The use of bush medicine was described, forexample, Maudie Nungarrayi said that she used pirraru (a bean tree) to treat sick people(transcript, p. 129). As Professor Hamilton has noted, it was in the evidence relating toforaging that the sense that the Willowra and Mount Barkly communities constituted 'onefamily' as opposed to outsiders was most evident (see para. 66 and Exhibit 22, p. 223).85. I am satisfied from the evidence that the members of each of the local descentgroups A I, A2. B I, C I and D2 are entitled by Aboriginal tradition to forage as of rightover their respective estates and over the whole of the claim area.Traditional Aboriginal ownership: formal findings86. As a result of this inquiry and in the light of the evidence discussed earlier, I find forthe purposes of s. 50(l) of the Act that;A. The claim area described in para. 8 is alienated Crown land in which all estatesand interests not held by the Crown are held by or on behalf of Aboriginals.B. There are Aboriginals who as members of five local descent groups arerespectively the traditional Aboriginal owners of five estates which collectivelyencompass the whole of the claim area.C. The names of those traditional owners are set out below under the estates ownedrespectively by each of those groups, the individuals being classified as kirda orkurdungurlu members of the local descent group.D. The traditional owners so named are entitled to the use or occupation of theirrespective estates and the whole of the claim area, although that entitlement maybe qualified as to place, time, circumstance, purpose or permission.KirdaPage 19LIIRLPARI(group Al)KurdungurluLady NampijinpaJohnny Martin JampijinpaFrankie Jampijinpa

Male claimants give evidence: Photo P. LawlessPage 20

Margaret NampijinpaLucky NampijinpaJoy NampijinpaBetty/Biddy Napaljarri Monica NapurrulaRay Japaljarri Robert JupurrulaJohnny Jungarrayi Olivia NapurrulaHelen Napaljarri (unnamed) JupurrulaRuby Napaljarri Linden Jangala/JupurrulaPatsy Napaljarri Karen Nangala/NapurrulaLily Napaljarri Derek Jangala/JupurrulaNancy NapaljarriJudy NapaljarriLittle John JapaljarriBelinda NapaljarriSimon Japaljarri(unnamed) NungarrayiGordon Downs Jimmy JungarrayiJohnny JapaljarriRita NapaljarriGeorge JungarrayiMavis NapaljarriAileen NapaljarriDick JukurtayiPeggy NapaljarriJohnny Kitson Japaljarri (Children of DianaDiana Nungarrayi/Nangala Nungarrayi/Nangala, viz:Susan Nungarrayi/Nangala (unnamed) JampijinpaJimmy Jungarrayi/Jangala (unnamed) NampijinpaXavier Jungarrayi/Jangala (Child of SusanKirsten Nungarrayi Nungarrayi/Nangala) viz:Petrina Nungarrayi (unnamed) NampijinpaKatrina NungarrayiRuth Nungarrayi Tommy JampijinpaLucy NampijinpaLeah NampijinpaMolly Nungarrayi Stumpy Martin JampijinpaDennis JampijinpaClark JampijinpaMaxie JampijinpaJeannie Nampijinpa/NakamarraShirlie NampijinpaKelly JampijinpaRuby NampijinpaAlbie JampijinpaTommy Japaljarri Keith JupurrulaWendy Napaljarri Yvette NapurrulaHarry Japaljarri Angela NapurrulaCarol NapaljarriLinda NapaljarriPage 21

Jimmy JungarrayiJoe JapaljarriJanet NapurrulaDora NapaljarriJulie NapurrulaMaisie NapaljarriDaniel JupurrulaJulie NapaljarriDennis JupurrulaAudrey NapaljarriDean JupurrulaFrankie JungarrayiAnne Grace NungarrayiSelwyn JungarrayiMargaret NapaljarriKay NapurrulaMary NapaljarriRichard JapaljarriJoseph JapaljarriKevin JapaljarriRita Turner Napaljarri Peter JupurrulaJanie Napaljarri Lynette NapurrulaRoslyn Napaljarri Susan Napurrula/NangalaEva Napaljarri Tony Jupurrula/JangalaNoelle Napaljarri Frank Jupurrula/JangalaJackie Japaljarri Frieda NapurrulaMichael Jungarrayi Adrian JupurrulaGillian NungarrayiEva NungarrayiBetsy NampijinpaKathleen NampijinpaHelen NampijinpaHolden JampijinpaMaudie NungarrayiPeggy NampijinpaMarlene NampijinpaLila NampijinpaKennedy JampijinpaWilliam JampijinpaLewis JampijinpaMarjorie NampijinpaMumpy NungarrayiJasper JampijinpaMitzi NampijinpaAdam JampijinpaPurluwiyi JupurrulaMinnie NapaljarriBenny JupurrulaMary NapurrulaRosie NampijinpaPolly NampijinpaTommy JupurrulaMartin JupurrulaToby JupurrulaCharlie Driver JupurrulaSandy JupurrulaWilly JupurrulaPage 22

NGARNKA(group A2)KirdaGeorge JungarrayiAmy NapaljarriKeith JapaljarriAndrew JapaljarriPaul JapaljarriRichard JapaljarriMichael JapaljarriGeorgie Peter JapaljarriTina NapaljarriBetty NapaljarriGlenda NapaljarriNoel JapaljarriTeddy JungarrayiRodney JapaljarriMichael JapaljarriAnnette NapaljarriMolly NapaljarriArchie JungarrayiJulie NapaljarriMargaret NapaljarriFrances NapaljarriChristine NapaljarriHenry JapaljarriMalcolm JapaljarriPauline NapaljarriMelissa NapaljarriEdna (Ena) NungarrayiWeeda NungarrayiEdie NungarrayiAlice NungarrayiEdie NungarrayiSandy Woolla Downs JungarrayiLoretta NapaljarriClayton JapaljarriKurdungurluJonathan JampijinpaGraham JampijinpaJohn JampijinpaLiz NampijinpaJanie NampijinpaPaul JampijinpaMargaret NampijinpaRodney JampijinpaMark JampijinpaTom JampijinpaBilly JampijinpaGeorge JampijinpaJimmy JampijinpaJanie NampijinpaRonny JampijinpaPage 23

Bismarck JapaljarriLucy NapaljarriTopsy NapaljarriTelegram Jimmy JapaljarriMick JapaljarriGrant JungarrayiIda NungarrayiNessie NungarrayiJanie NapaljarriPhyllis NapurrulaOther membersPeggy Napangardi WoodsGraham JampijinpaJohn Cook JampijinpaArchy JampijinpaPaddy JampijinpaNancy NampijinpaJanie NampijinpaPatsy NampijinpaTeddy JupurrulaBunny NapurrulaNelly Napurrula WoodsNancy NapurrulaTommy JupurrulaElva NapurrulaIris NapurrulaLeslie JupurrulaZachariah JampijinpaCheryl NampijinpaNathan JampijinpaBradley JampijinpaWarren JampijinpaGlen JupurrulaTony JupurrulaMark JupurrulaYINJIRRPIKIRLANGU(group B1)KirdaLucy NapangardiLittle Sandy JapangardiPango JapanangkaMatthew JapanangkaSelena NapanangkaLee-Ann NapanangkaToby JapangardiKurdungurluMilly NangalaKathy NangalaTimothy Japanangka/JakamarraMolly NapangardiJonathan JangalaRonnie JangalaGrant JangalaMoira NangalaMaggie NapangardiJanet NapanangkaPage 24Kenny JangalaNewton Jakamarra

Dick Forrest JapangardiClem JapanangkaDavid JapangardiJustin JapangardiStephanie Napangardi(unnamed) JapangardiRexy JapanangkaAnthony JapangardiBrendon JapangardiBetty NapanangkaIvy NapanangkaTopsy NapanangkaFrankie JapanangkaBob Japangardi WoodPansy NapangardiStumpy NapangardiMargaret NapangardiLillian NapangardiPeggy Napangardi SmallJeffrey JapangardiStephen Japanangka.Gary Anthony JapanangkaMinnie NapanangkaSue NapangardiSammy JapangardiChristine NakamarraGracie NakamarraDoreen NangalaRoger/Randy JangalaJanice NangalaJoe JangalaTrevor JangalaHazel NangalaDaisy NangalaRonnie JangalaEmily NangalaRaymond JangalaBeverley NangalaTeddy JangalaLouise NangalaTricia NangalaManfred JangalaJulie NangalaSylvia NangalaGarry JangalaJosie NangalaKeith JangalaHenry JangalaMary NangalaApril NangalaNigel JangalaJanie NangalaEdmund JangalaLesley JangalaDoreen NakamarraMalcolm JakamarraTimothy Japanangka/JakamarraAndrea NangalaMegan NangalaPage 25

Ann NapangardiMoira NapangardiAndrew JapangardiLawrence JapangardiEmily NapanangkaWilly Japanangka RileyGeorgina NapangardiFelix JapangardiRobert JapangardiGeraldine NapangardiRachel NapangardiMeredith NapangardiMorgan JapangardiDesmond JapangardiNora NapanangkaPAWU(group Cl)KirdaStumpy Martin JampijinpaAndrea NangalaMegan NangalaDelvene NangalaDennis JampijinpaPage 26Ambrose JakamarraGrant JakamarraBrian Jakamarra.Richard JakamarraEmily NakamarraYvonne Nakamarra,Bary JakamarraCaroline Nakamarra,Elaine NakamarraSamuel JakamarraPreston JangalaGalvin JangalaJanet NakamarraRussell Jakamarra.Amanda Nakamarra.Terry Jakamarra.Charlie Jakamarra LimbiariOne-eye George JakamarraPaddy Willis JakamarraDick JakamarraPearly NakamarraBigfoot Jack JangalaPeter Brian Jangala BrownDick JangalaBilly Jangala WoodsWinnie NangalaTopsy NangalaMary NangalaKurdungurlu

Linden Jangala/JupurrulaKaren Nangala/NapurrulaDerek Jangala/JupurrulaClark JampijinpaClifford JangalaRobin JangalaJason JangalaRonald JangalaRodney JangalaHerbert JangalaBenjamin JangalaMarcia NangalaGwendoline NangalaMaxie JampijinpaMervyn JangalaSharon NangalaLucy NampijinpaLeah NampijinpaPeggy NampijinpaMaylene NampijinpaJohnny Martin JampijinpaDiana NangalaApril NangalaBarbara NangalaJanie NangalaFrankie JampijinpaMarguerite NangalaBeverley NangalaJean Nangala(unnamed) JangalaLady NampijinpaJoy NampijinpaPage 27Ann NapanangkaSelena NapanangkaLee-Ann NapanangkaLindsay JapanangkaNanita NapanangkaJanet NapanangkaLuke Japanangka/JungarrayiJosephine Napanangka/NungarrayiNoreen Napanangka/NungarrayiJennifer Napanangka/NungarrayiSarah-Lee Napanangka/NungarrayiLarry Tracker JapaljarriMaudie NapaljarriHilda NapaljarriLady NapaljarriMary NapaljarriMonty JapaljarriKevin JapaljarriElton JapaljarriSusina NapaljarriLoretta NapaljarriClayton JapaljarriVeronica NapaljarriLeston JapaljarriPeter JapanangkaKay NapanangkaCliffy Japanangka

Margaret NampijinpaMaylene NampijinpaLucky NampijinpaJimmy JapanangkaRuby NampijinpaAlbie JampijinpaKenny JangalaCarol NangalaGeorge Morton JangalaPolly NangalaMilly NangalaElizabeth NampijinpaShirley NampijinpaKelly JampijinpaDarrell JampijinpaJeanie NampijinpaTeddy JangalaSimon JampijinpaTony JampijinpaWarren JampijinpaTommy JangalaMick JangalaRoger JangalaCliffy JampijinpaSelma NampijinpaKerry-Anne NampijinpaTony JangalaThompson JangalaFiona NampijinpaKathy NangalaWesley JangalaBigfoot Jack JangalaLila NampijinpaPage 28Mark JapanangkaMargaret Napanangka(unnamed) JapanangkaCharlotte NapanangkaCelissa NapanangkaSolomon JapanangkaMichael JapanangkaMinnie NapanangkaEmily NapanangkaWilly JapanangkaNora NapanangkaEva NapaljarriRachel NapaljarriTelegram Jimmy JapaljarriMick JapaljarriBismarck JapaljarriLucy NapaljarriJohnny Kitson JapaljarriMarguerite NapaljarriDora NapaljarriMaisie NapaljarriJoe JapaljarriJulie NapaljarriAudrey NapaljarriGloriana NapanangkaNoressa NapanangkaCarol NapaljarriLinda NapaljarriBrendon JapanangkaKaren Napanangka

William JampijinpaLewis JampijinpaMarjorie NampijinpaKennedy JampijinpaRaymond JangalaChristopher JangalaPeter Brian Jangala BrownJohn JampijinpaRosanne Nangala/NungarrayiCharlie JampijinpaMorrison JangalaCaroline NangalaViolet NampijinpaDick JangalaBilly Jangala WoodsWinnie NangalaTopsy NangalaMary NangalaKaspar JampijinpaMitzi NampijinpaAdam JampijinpaBetsy NampijinpaKathleen NampijinpaHelen NampijinpaHolden JampijinpaJoseph JampijinpaDick JangalaKim JangalaKim JampijinpaDavid JapanangkaSteven JapanangkaPaul JapanangkaRosalie NapanangkaMary NapaljarriPeggy NapaljarriElizabeth NapanangkaHazel NapanangkaSerena NapanangkaCindy NapanangkaLee-Anne NapanangkaIvy NapaljarriIvy NapaljarriComet JapaljarriMollie NungarrayiMaudie NungarrayiRosie NungarrayiNote: Maudie, Molly and Rosie Nungarrayi are second generation kurdungurlu.YARRUKU(group D2)KirdaAmbrose JakamarraGrant JakamarraBrian JakamarraWilly JupurrulaMary NakamarraHelen Nakamarra.Mandy NakamarraPage 29KurdungurluMark JapanangkaSteven JapanangkaHerman JapanangkaTristram Japanangka

June Nakamarra Johnny JungarrayiPauly JakamarraTerence JungarrayiCharcoal Jakamarra Griselda NungarrayiSelwyn JungarrayiMolly NapurrulaDavey JapangardiCharlie JapangardiRiley JapangardiLeonard JapangardiNancy NapangardiJessie NapangardiRobin JapangardiMary NapangardiLong Topsy NapangardiAlbie JapangardiChas JapangardiNorton JapangardiEdna NapangardiJacob JapangardiMary NapurrulaLulu NapangardiMark JapangardiOliver JapangardiBrian JapangardiJohn JapangardiMay NapurrulaBandy JupurrulaAmanda NakamarraTerry JakamarraBenny JakamarraPeter JupurrulaLynette NapurrulaLouis JakamarraGracie NakamarraChristine NakamarraLilian NakamarraSammy Long JakamarraAngela NapurrulaYvette NapurrulaBarney JakamarraTopsy NakamarraNelly Napurrula WoodsJohn Jakamarra RossPage 30Doris Napaljarri/NapangardiAndrew Japaljarri/JapangardiGeorgina Napaljarri/NapangardiTreben Japaljarri/JapangardiJane Napaljarri/NapangardiKerry-Lyn Napaljarri/NapangardiJames JapangardiFrankie JungarrayiAnne-Grace NungarrayiMarjorie NungarrayiDonovan JungarrayiSabrina NungarrayiAdam JungarrayiPeggy Napangardi

Bunny NapurrulaMarlene NapurrulaTeddy JupurrulaNewton JakamarraJoanna NakamarraTopsy NapurrulaAlice NapurrulaMolly NapurrulaEllen NapurrulaToby JupurrulaBunny NakamarraMaggie Rice NapurrulaMadeleine NapurrulaKumunjayi NapurrulaLeslie JupurrulaRichard Jakamarra.Mary NakamarraMaureen NakamarraNancy NapurrulaTommy JupurrulaPrunella NakamarraCheryl NakamarraKapil JakamarraPage 31Salty JapangardiDavid JapangardiNita NapangardiMaggie NapangardiMary NapangardiFlorie NapangardiJoey JapangardiJanie NapangardiGraham JapangardiTrevor JapangardiToni NapangardiDon JapangardiGeoffrey JapangardiGordon JapangardiJanie NapangardiCameron JapangardiWalker Japangardi/JapaljarriPansy NapangardiConnie NapangardiMaureen NapangardiCathy NapangardiKumunjayi NapangardiJackie JapaljarriElvie JapaljarriPeter JapaljarriKumunjayi NapangardiPeggy NapangardiDouglas JapangardiJurnpu JapangardiMaggie NapangardiAdrian JapangardiPeterson JapangardiRichie Japangardi

Lisa NakamarraLinda NakamarraKevin JakamarraPeter JupurrulaBrian Jakamarra.(unnamed) NapurrulaDavid Jakamarra(2 unnamed) NapurrulasPeter Jakamarra(2 unnamed) Napurrulas(unnamed) JupurrulaAdrian JakamarraDaniel JakamarraBilly JakamarraVeronica NakamarraPeggy Nakamarra,Rosie NakamarraValerie Nakamarra,Sandy JupurrulaMargaret NakamarraMark JakamarraJeffrey JakamarraCluffy JakamarraReggie JakamarraFred Jakamarra,Alice Napurrula(3 unnamed) Nungarrayis(unnamed) JungarrayiClancy JapangardiTrevor JapangardiPaddy JungarrayiBarney JungarrayiPine Hill Johnny JungarrayiCharlie JungarrayiPaddy JungarrayiRosie NungarrayiShort Willy JungarrayiSarah NungarrayiGeorge JungarrayiArchy JungarrayiTeddy JungarrayiJimmy Jungarrayi(unnamed) Jungarrayi (dec'd)Bismarck JapaljarriNote: Bismarck Japaljarri is a second generation kurdungurlu.Strength of traditional attachment87. For the purpose of deciding whether or not to recommend a grant it is necessary toassess the strength of the traditional attachment of the owners to their lands. This isintimately linked with the extent to which they continue their traditional life-style. It maybe measured by reference to such matters as the frequency with which they visit and carePage 32

for sites, the extent to which they carry out and observe ceremonies and ritual-, the degreeto which they observe the traditional rules which have regulated marriage and kinshiprelations in their society-, the extent to which the y continue t o speak Warlpiri andAnmatjirra; the extent to which they teach succeeding generations about spiritual mattersconcerning the land and its natural resources-, the extent to which they rely upon the land'snatural resources-, and so on. The extent to which the community is free of alcohol is notirrelevant. Some of the evidence relating to these indicators is collected in Exhibit 23.88. Much of the evidence set out in paras 43-81 indicates a strong degree of traditionalattachment to country. There was a good deal of evidence, which emerged in formalsessions and in restricted sessions with the men. that the claimants lead an activeceremonial life and hold strongly to their traditional ways and beliefs,. For example, therewere fourteen Yawulyu sessions for Pawu. held mainly at Willowra, between May 1981and April 1982 (see Restricted Exhibit 18). There are many sites on the land, of varyingsignificance; Exhibit 1A lists some 248 and Dr Wafer has visited some sixty of them(transcript, p. 188). The claimants visit the sites frequently. As Stumpy MartinJampijinpa put it. they are:Visiting all the time. (transcript, p. 77)The life-style on a cattle station blends well with the observance of traditional obligations.It is clear that the ritual objects which I saw are of great religious importance to the people:I was impressed by the strength of belief and sense of responsibility for the land whichwas apparent during the restricted sessions. in approaches to sites and in the discussions atthe sites (see transcript, pp. 213-14). The senior claimants have a complete and thoroughknowledge of the geography of the claim area, the location of sites and the mythssurrounding the activities of the Dreamings. Much of their ceremonial life is shrouded insecrecy, but there is no doubt that it remains very active and a prime focus of their lives; inExhibit 26 Dr Wafer refers to eleven ceremonies he witnessed over a period of some sevenmonths involving claimant groups. A women's Yawulyu ceremony is performed aboutevery two weeks (see P. Wafer, transcript, pp. 212-13).89. It was also clear from the evidence from both men and women that considerableeffort is put into inculcating traditional knowledge and values into the young. The socialenvironment at Willowra. and Mount Barkly seems particularly suitable for this to becarried out. The process is ongoing over a long time and continues from the child'searliest years (see transcript, p. 216).90. It is clear from the evidence and the genealogies at Exhibit 12 that the traditionalmarriage rules govern the choice of marriage partners for nearly all the claimants.91. From my observations during the inquiry it was clear that the claimants speakWarlpiri or Anmatjirra as their first language. I was informed that the community atWillowra. requested some years ago that a Warlpiri bilingual program be introduced attheir school, and that has been done.92. Alcohol is not allowed in the Willowra community and I observed that this ruleappears to be strictly enforced. As a result, the social disruption often seen elsewhere isnoticeable by its absence.93. In summary it may be said that the claimants lead a traditional life in an environmentvery well suited to it, and their traditional attachment to their country is correspondinglystrong. I agree with P. Wafer's assessment:Every aspect of their life is imbued with and structured by the Dreamtime. (transcript, p. 214)Living on traditional country94. The first principle under s. 50(4) of the Act to which regard is to be had whenconsidering whether to make a recommendation for a grant is that Aboriginals who arePage 33

Female claimants give evidence: Photo P. LawlessPage 34

already living by choice at a place on their traditional Country within the claim area,without right or title, should where possible have that occupancy secured. Some sixty toninety of' the traditional owners are living on the claim area near the old homestead as aresult of the purchase of Mount Barkly-, the gaining of that access was the principal reasonfor the purchase. In practical terms their permissive occupancy is secure while the pastorallease remains current. A grant would, however, secure their occupancy, since theprovisions of the Act provide a stronger title than a pastoral lease and ensure that theirpermissive occupation becomes one of right.95. The second principle to be regarded is that those traditional owners who desire tolive at a place on their traditional country within the claim area should where practicablebe able to acquire secure occupancy of such a place. Since the traditional owners of MountBarkly currently can move freely to and from their traditional country. and frequently doso, it is not surprising that evidence was somewhat lacking as to such desire. BismarckJapaljarri, kirda for Ngarnka, said:We hold that country-, we live in that country: we live around the soakages. We been there along time. We are just here [at Willowra] temporarily. We got to shift back. (transcript. p. 36)For the reasons stated in para. 94, a grant would make secure the occupancy of anytraditional owners who 'shift back'.Recommendations96. I shall deal later with matters for comment under s. 50(3) of the Act; they are to bedisregarded at this stage, when deciding whether or not to recommend a -rant.97. A. In the 11-ht of the findings at para. 86 that five estates within the claim area havetraditional Aboriginal owners, and that those estates encompass the whole of theland within the claim area; andB. having regard to the conclusion at para. 93 that the traditional owners of thoseestates have a strong traditional attachment to their estates; andC. having regard to the principles in s. 50(4) of the Act, in the light of thediscussion at paras 94 and 95; andD. as all the traditional owners are entitled to the use and occupation of the whole ofthe claim area:I recommend that the whole of the claim area (Mount Barkly station) be granted to a LandTrust for the benefit of the Aboriginals entitled by tradition to its use or occupation,whether or not the traditional entitlement is qualified as to place, time, circumstance,purpose or permission.Matter for comment - Advantage to Aboriginals of a grant98. The first matter upon which I am required by s. 50(3)(a) of the Act to comment isthe number of Aboriginals with traditional attachments to the claim area who would beadvantaged if the claim were acceded to either in whole or in part.99. The traditional owners of the five estates are listed in para. 86, and currentlynumber about 580 persons. In addition, the evidence is clear that there are other groupsclosely associated with the traditional owners; these are the Jarrajarra, Yarlpajanti,Janyinpartinya, Ngurratiji/Miyikampi, Yanginji and Warntaparri groups, who numberabout 193 (see Exhibit 16). In view of the close connections between all the groups livingat Willowra and Mount Barkly there are other Aboriginals I have not identified who havetraditional attachments to the claim area; the traditional owners of Willowra, who includemany of the claimants, number about 760 persons. It can be said that at least some 770Aboriginals will be advantaged if a grant is made to a Land Trust.Page 35

100. The second matter for comment involves the nature and extent of' that advantage.In light of the purchase in 1981 of the lease of Mount Barkly by Aboriginal interests,referred to in para. 7, the principal advantage which Aboriginals would gain by a grant issecurity of tenure. The title would then be an estate in fee simple held by a Land Trustcharged by the Act to exercise its powers for the benefit of the Aboriginal groupsconcerned. This is a much more secure title than a pastoral lease; for example, it wouldnot be liable to forfeiture for non-compliance with covenants.Matter for comment - Detriment101. I next comment on the matters referred to in s. 50(3)(b) of the Act - namely, thedetriment to persons or communities, including other Aboriginal groups, which mightresult if the claim were acceded to.102. There is nothing to suggest that any other Aboriginal group might suffer anydetriment if the claim were acceded to; all the evidence is the other way.103. The Northern Territory Government submitted that ss. 14, 15 and 67 of the Actgive rise to detriment within the meaning of s. 50(3)(b), upon which I should comment.104. As to s. 67, it was not contended that there was a present need compulsorily toacquire any part of the claim area for some public purpose. The objection really was to thepresence of s. 67 in the Act and its effect should there later arise a need to acquire land inthe claim area, for public purposes. For the reasons set out in paras 141 and 142 of theCox River report, I do not think that this amounts to a detriment upon which I cancomment.105. As to s. 14, it is clear that while it protects the occupation by the Government ofland upon which it has constructed a bore or other installation, s. 14 does not address thequestion of securing access to adjoining areas upon which maintenance crews may need tocamp. The Government is concerned about this matter in relation to ten bores which it hasdrilled in the claim area, in the course of investigating potential water resources. Thedrilling was completed by 1969, the bores have not been visited since and no monitoringis planned (see Exhibit 1-1, p. 3). Against that background, I consider that s. 14 providesadequate practical protection for the Government's interests in the bores. There is noreason to think that the claimants, like other pastoralists, will not willingly co-operate inany further investigation of water resources.106. The submission on s. 15 was identical to that dealt with in para. 319 of the FinnissRiver report. In practical terms the matter arises only in relation to the bores and does notwarrant any comment.107. The Northern Territory Government also submitted that the operation of Part IV ofthe Act amounted to detriment, as regards mining in the claim area. There are no mininginterests in that area. I consider that it is necessary that facts be established from which itcan fairly be concluded that detriment might result, before comment to that effect can bemade. The mere existence of Part IV in the Act, the possibility that there may be someprospects in the area and that miners may at some time in the future evince interest in itcannot amount to detriment. In the absence of mining interests which might be affected nouseful comment can be made.Matter for comment - Patterns of land usageLand usage: cattle station108. The Northern Territory Government has expressed concern that if the covenantsunder the pastoral lease cease, the claim area may be used less productively. I do notconsider that that is likely to occur. As mentioned in para. 17, part of the reason for thepurchase of Mount Barkly in 1981 was to re-establish the former combinedPage 36

Willowra-Mount Barkly pastoral enterprise conducted by the Parkinsons. After purchaseof Mount Barkly it was destocked, and restocked with 500 disease-free cattle. Adevelopment budget was obtained from Leith Matthewson, indicating what was requiredproperly to develop Mount Barkly with Willowra (see Exhibit .15). The Willowraoperation has been efficient within its limits; in 1981 it was running about 4600 head ofcattle. The prospects are for a more viable combined operation with a single herd. MountBarkly can run 600 head with the present three bores, and 1000 head with a further twobores. In practical terms the absence of covenants is not likely to be relevant to thecontinued productive use of the claim area; it is more likely that its productivity willincrease than decrease.109. As to disease control, both Willowra and Mount Barkly have been declared free ofbrucellosis but there is still a slight incidence of bovine tuberculosis (see Exhibit 21,p. 2). For the reasons set out in para. 207 of the Nicholson River report, acceding to theclaim cannot disrupt the Government's BTB eradication program. Government officershave statutory powers of access to Aboriginal land to carry out their duties under thevarious relevant Acts (see ss. 70(l) and 74 of the Act and also s. 6 of the Aboriginal LandAct N.T.). The claimants will co-operate (see transcript, p. 204).110. As mentioned in para. 94, there is a considerable community now resident onMount Barkly. Their living conditions are poor. Their children are educated at Willowra.A visiting Sister from Willowra provides health care, with a resident health worker. Theaccess road is good. Problems of water supply need to be solved. A store operates fromthe old homestead. The community spends much of its time hunting. This pattern of landusage will continue, in conjunction with the combined cattle operation.Land usage: roads111. Roads over which the public has a right of way are excluded from a grant (sees.11(3) of the Act). These roads are sought to be identified in reports, for practicalpurposes; views expressed are not binding.112. Roads Nos 1 and 2 are shown on the map at Appendix 1; see also Exhibit 21, p. 8.I consider that the 6 kilometre section of Road No. 1, which traverses the north-eastcomer of the claim area, is part of a public road; see the reasons given in paras 134-7 ofthe Willowra. report. It is maintained by the Government. It should be reserved from anygrant, and a reasonable reservation would be 100 metres wide; this would enable table andrelief drains to be constructed and maintenance work to be carried out.113. Road No. 2 is the access road from Road No. 1, across part of Anningie to theclaim area. The people who use it are bound for Mount Barkly; their use has nothing to dowith Anningie. To that extent their use is as members of the public. However, Road No. 2goes no further than the vicinity of the old Mount Barkly homestead. There is no evidencethat anyone using Road No. 2 intends to go anywhere except Mount Barkly. Against thatbackground I respectfully agree with the views of Toohey J. in para. 138 of the Willowrareport:... it seems to me that although the range of users is reasonably extensive, it is not used by thepublic. Rather it is private use even though some of it may be as of right in the case of policeofficers and stock inspectors.I consider the 41 kilometre section of Road No. 2 which lies within the claim area is not aroad over which the public has a right of way, and it need not be excluded from any grant.114. The other roads within the claim area shown on the map W82/1042 in Exhibit 21are clearly internal private roads.Page 37

Cost of acquiring interest115. If a grant is made, a Land Trust will hold the claim area in fee simple. and thepresent leasehold interest of Willowra Pastoral Company Pty Ltd (see Exhibit 3) will beextinguished. I consider. in the light of para. 7. that the company holds its interest as abare trustee and neither the company nor its trustee shareholders have any interest in theclaim area. the acquisition of which would involve a cost. should a grant be made.Summary of findings. recommendations and comments116. A. The claim area comprises Northern Territory Portion 360. which is alienatedCrown land in which all estates and interests not held by the Crown are heldon or on behalf of Aboriginals (paras 5. 7. 8. 57. 86).B. There are traditional Aboriginal owners of the whole of the claim area: thoseidentified in this inquiry are named at para. 86, as members of five localdescent groups. each 4 which holds an estate.C. The traditional Aboriginal owners are each entitled by Aboriginal tradition tothe use or occupation of the whole of the claim area, although that entitlementmay be qualified as to place. time. circumstance. purpose or permission(para. 86).D. The traditional Aboriginal owners have a strong traditional attachment to theirrespective estates (paras 87-93).E. Sixty to 90, approximately. of the traditional owners live on the claim area:many of the others live at Willowra (paras 18, 94).F. I recommend that the whole of the claim area be granted to a Land Trust. forthe benefit of Aboriginals entitled by Aboriginal tradition to the use oroccupation of the land, whether or not the traditional entitlement is qualifiedas to place, time. circumstance, purpose or permission (para. 97).G. The number of Aboriginals with traditional attachments to the claim area whowould be advantaged if the claim were acceded to is not less than 770(para. 99). The principal advantage they would gain would be security oftenure (para. 100).H. It has not been shown that any detriment might result either to any otherAboriginal group (para. 102) or to anyone else (para. 104), if the claim wereacceded to.I. It is intended that the claim area form part of a single cattle station withWillowra (para. 108), and the indicators are that this should prove viable(para. 108).J. Of those sections within the claim area of the two roads shown on the map atAppendix 1, only the section of Road No. 1 is a road over which the publichas a right of way (paras H 2, 113). A reservation from any grant 100 metreswide along that section would be reasonable (para. 112).K. The Northern Territory Government has a statutory right to continue tooccupy the ten bores it has drilled on the claim area to investigate waterresources (para. 105).L. The acquisition of interests in the claim area (other than those of the Crown)will not involve cost (para. 115).Darwin30 May 1985Page 38

LEGAL REPRESENTATIVESMr J. Coldrey, with him Mr M. Hird, for the claimantsMr J. D. Barrett, for the Attorney-General of the Northern Territory and the Governmentof the Northern TerritoryCONSULTANT TO THE COMMISSIONERProfessor A. HamiltonINTERPRETERSMs Jeanie Nungarrayi (Warlpiri/English)Dr D. Nash (Warlpiri/English)LIST OF WITNESSESGroup witnesses1. Liirlpari estate (group Al)Speakers on behalf of male claimantsJimmy Jungarrayi, kirdaGeorge Jungarrayi, kirdaJohnny Kitson Japaljarri, kirdaJohnny Martin Jampijinpa, kurdungurluStumpy Martin Jampijinpa, kurdungurluSimon Japaljarri, kirdaBigfoot Jack Jangala, second generation kurdungurluSpeakers on behalf of female claimantsMolly Nungarrayi, kirdaMaudie Nungarrayi, kirdaRuth Nungarrayi, kirdaLucy Nampijinpa, kurdungurluPeggy Nampijinpa, kurdungurluMumpy Nungarrayi, kirda2 .Ngarnka estate (groups A2 and A5)Speakers on behalf of group A2 male claimants(Ngarnka area)Bismarck Japaljarri, kirdaTelegram Jimmy Japaljarri, kirdaSandy Woolla Downs Jungarrayi, kirdaTeddy Long Jupurrula, kurdungurluTeddy Jungarrayi, kirdaMick Japaljarri, kirdaPaddy Turner Jampijinpa, kurdungurlu.Speakers on behalf of Yarlpajanti groupWilly Jungarrayi, kirdaMalcolm Jampijinpa, kurdungurluSpeakers on behalf of group A5 male claimants(Janyinpartinya area)Larry Tracker Japaljarri, kirdaWilly Jupurrula, kurdungurluPage 39

Speakers on behalf of combined A2 and A5 female claimantsNellie Napurrula Woods. (A2). kurdungurluPeggy Napangardi Woods. (A2)Bunny Napurrula. (A2). kurdungurluEdna Nungarrayi. (A2). kirdaWeeda Nungarrayi. (A2). kirdaTopsy Napaljarri. (A2). kirdaLady Napaljarri. (A5). kirda (Janyinpartinya)Hilda Napaljarri. (A5). kirda (Janyinpartinya)3. Yinjirrpikirlangu estate (group B1)Speakers on behalf of female claimantsDick Forrest Japangardi. kirdaToby Japangardi. kirdaBigfoot Jack Jangala. kurdungurluCharlie Limbiari Jakamarra. kurdungurluPaddy Willis Jakamarra. kurdungurluSandy Japangardi, kirdaTogether with -Albie Japangardi. kirda for group B2 (Yanginji)Speakers on behalf of female claimantsSue Napangardi. kirdaBiddy Napanangka. kirdaMill), Nangala. kurdungurluKathy Nangala, kurdungurluMary Nangala. kurdungurluTops), Nangala, kurdungurluLucy Nangala. kurdungurluMolly Napangardi. kirdaNora Napanangka. kirdaTops), Napanangka, kirdaMinnie Napanangka, kirdaPeggy Napangardi, kirdaMolly Nungarrayi. claiming through jurdalja relationship4. Pawu estate (group C1)Speakers on behalf of male claimantsBigfoot Jack Jangala, kirdaJohnny Martin Jampijinpa, kirdaStumpy Martin Jampijinpa, kirdaClark Jampijinpa. kirdaDennis Jampijinpa, kirdaBismarck Japaljarri, kurdungurluLarry Tracker Japaljarri, kurdungurluSpeakers on behalf of female claimantsPeggy Nampijinpa, kirdaMargaret Nampijinpa, kirdaMilly Nangala, kirdaKathy Nangala, kirdaTopsy Nangala, kirdaPage 40

Mary Nangala, kirdaLucy Nampijinpa, kirdaRuby Nampijinpa. kirdaIvy Napaljarri, kurdungurluMaudie Nungarrayi, second generation kurdungurluMollie Nungarrayi, second generation kurdungurluRosie Nungarrayi, second generation kurdungurluOther women sitting with the group:Nancy Nungarrayi, kirda, Jarrajarra groupLucy Nangala, kurdungurlu, group B25. Yarruku estate (group D2)Speakers on behalf of female claimantsMaggie Rice Napurrula, kirdaTopsy Napurrula, kirdaAlice Napurrula. kirdaBunny Napurrula, kirdaMay Napurrula, kirdaPeggy Napangardi, kurdungurluNellie Napurrula, kirdaSpeakers on behalf of male claimantsBandy Jupurrula, kirdaBenny Jakamarra, kirdaTeddy Jupurrula, kirdaPeter Jupurrula, kirdaSandy Jupurrula, kirdaBismarck Japaljarri, second generation kurdungurluCharlie Jungarrayi, kurdungurluSpeaker on behalf of part of the Warntaparri (Willowra DI) groupPaddy Willis Jakamarra, kirdaIndividual witnessesDr J. W. WaferStumpy Martin JampijinpaMrs P. E. WaferList of exhibits1. Claim Book prepared by J. Wafer and P. Wafer; April 1983, 113 pp.1A. Index to 248 Warlpiri place names in Claim Book.2. Map, scale 1:250 000: 'Mount Barkly' Pastoral Lease No. 634.3. Certified copy of Pastoral Lease No. 634, registered vol. 44, folio 78.4A. Photocopy of Certificate of Registration of a Foreign Company, Willowra.Pastoral Company Pty Ltd, in the Northern Territory on 13 March 1981.4B. Articles of Association of Willowra Pastoral Company Pty Ltd; with Notice ofSpecial Resolution, dated 17 July 1973, adopting the Articles.5A. Certified copy of Memorandum of Association of Willowra Station Limited,dated 12 February 1960.5B. Annual Return of Willowra. Pastoral Company Pty Ltd, dated 29 January 1983.6. Certified copy of Constitution of Willowra Community Incorporated, as at 14January 1974.Page 41

7A. Minutes of Meeting of Directors of Willowra Pastoral Company Pty Ltd. dated4 June 1983.7B. Declaration of Trust by Willowra Pastoral Company Pty Ltd. dated 4 June1983. with respect to Pastoral Lease No. 634.8. Replacement page for p. 20 of Claim Book (Exhibit 1).9. Map. scale 1: 100000-, incorporating Exhibits 10A. 10B and 10C.10A. Map. scale 1: 100000: claim area. showing boundaries. landmarks. bores andtracks.10A1Map. copy of Exhibit 10A, as marked by male claimants (group A2). showinglocation of sites of Kangaroo, Dreaming.10A2. Map. copy of Exhibit 10A. as marked by female claimants (group A2).showing location of sites for Bush Tomato dreaming.10A3. Map. copy of Exhibit 10A. as marked by male claimants (group B1). showinglocation of sites of Dreamings.10A4. Map. copy of Exhibit 10A. as marked by male claimants (group C1). showinglocation of sites for Snake Dreaming.10A5. Map. cop), of Exhibit 10A. as marked by female claimants (group D2).showing location of sites of Dreamings.10A6. Map. copy of Exhibit 10A. as marked by male claimants (group 132), showinglocation of sites of Dreamings.10A7. Map. copy of Exhibit 10A. as marked by female claimants (group Al).showing location of sites of Dreamings.10A8. Map. copy of Exhibit 10A. as marked by male claimants (group Al). showinglocation of sites of Dreamings.10A9. Map. copy of Exhibit 10A, as marked by female claimants (group B1).showing location of sites of Dreamings.10A10. Map. copy of Exhibit 10A, as marked by female claimants (group C1).showing location of sites of Dreamings.10B. Map, scale 1: 100000: claim area, showing location of sites.10C. Map. scale 1: 100000: claim area, showing Dreaming tracks.11. Claim Book: Lander Warlpiri claim to Willowra Pastoral Lease: J. Wafer andP. Wafer, 1979.12A. Genealogies for groups: Al (pp. 1-5): Jarrajarra (p. 6); A2 (pp. 7-8),Yarlpajanti (p. 9): A5 (p. 10): B1 (pp. 11-14); Ngurratiji (p. 15); B2 (p. 16);C ! (pp. 17-20); D2 (pp. 21-4); and Warntaparri (p. 25).12B. Amendments to genealogies, following hearing; I page.13. Affidavit of service of notices of Application, sworn by Joanne ElizabethSchaber, 10 May 1983; with annexures A, B and C.14. Submission dated 27 April 1983 on behalf of Department of Aboriginal Affairs;2 pages.15. Report by Leith Matthewson to Aboriginal Development Commission,concerning development of Mount Barkly/Willowra cattle enterprise; 17 pages.16. Amended list of claimants, comprising groups Al, Jarrajarra, A2, Yarlpajanti,A5, BI, Ngurratiji/Miyikampi, B2 (Yanginji), Cl, D2 and Warntaparri (DI);30 pages.17. Curriculum vitae: Dr James Wafer18. Report by Megan Dail-Jones, AIAS, ethnochoreologist, dated 27 April 1982:Women's Recent Activities in Regards to Pawu (May 1981-April 1982); 5pages; (Restricted exhibit).19. Location map of claim area.20. Statement by Department of Aboriginal Affairs: Mount Barkly Land Claim;submitted 30 May 1983.Page 42

21. Supplementary documents lodged by Northern Territory Government. dated 4September 1983.22. Report by Prof. Annette Hamilton. Consultant Anthropologist to the LandCommissioner, dated I August 1983-, 1-4 pages and annexure (6 pages).23A. Transcript references: Yarruku - evidence of D2 male claimants-, identicalwith Exhibit 231.23 B. Transcript references: Ngarnka - evidence of A2 male claimants.23C. Transcript references: Pawu - evidence of C I male claimants.23D. Transcript references: Yinjirrpikirlangu - evidence of B I and B2 maleclaimants.23E. Transcript references: Ngarnka - evidence of A2 female claimants.23F. Transcript references: Yinjirrpikirlangu - evidence of B I female claimants.23G. Transcript references: Pawu - evidence of C I female claimants.23H. Transcript references: Liirlpari evidence of AI male claimants.23I. Transcript references: Yarruku evidence of D2 male claimants, identicalwith Exhibit 23A.23J. Transcript references: Yarruku evidence of D2 female claimants.23K. Transcript references: Liirlpari evidence of Al female claimants.24A. Part I of paper by Dr J. Wafer summarising displays of ritual objects by maleclaimants on 6, 8, 9 and 10 June 1983; 1 page.24B. Part II of paper by Dr J. Wafer detailing displays in Exhibit 24A; 11 pages;(Restricted exhibit).25. List of sites and Dreamings additional to those in Claim Book: 2 pages;(Restricted exhibit).26 .Paper by Dr J. Wafer: Background to writing up the Claim Book: 3 pages.27A. P. Wafer: Notes on Pawu Yawulyu performed at Willowra on 9 June 1983;(Restricted exhibit).27B. P. Wafer: Notes on Ngarnka Yawulyu and Yinjirrpikirlangu YawulyuPerformed at Willowra on 6 June 1983; (Restricted exhibit).28. P. Wafer: The 1928 Massacre of the Lander Warlpiri/Anmatjirra people; 16pages.29. Notes of Final Address by J. D. Barrett, Counsel for Northern TerritoryGovernment, dated 12 September 1983; 18 pages.30. Transcripts of proceedings of restricted sessions with male claimants on 6, 8, 9and 10 June 1983; (Restricted exhibit).Page 43

Appendix 1: Location map of claim areaPage 44

Appendix 2: Map of sites in claim areaPage 45

Appendix 3: Map of Dreamings in claim area