Talk:Peter Sutton (anthropologist)/20060300:Jango vs Northern Territory

===(31 March 2006): | Jango v Northern Territory of Australia 2006 FCA 318===

SACKVILLE J

SUMMARY

1. This is the first case in the Federal Court in which Aboriginal  applicants have sought a determination of compensation as the result of extinguishment of native title over land. The proceedings have been brought by the applicants under the Native Title Act 1993 (Cth) (‘NTA’) on behalf of the members of a ‘compensation claim group’.

2. The applicants seek a determination in respect of the Town of Yulara in the Northern Territory (‘the Application Area’), which comprises an area of 104 square kilometres. The members of the compensation claim group are almost exclusively Yankunytjatjara or Pitjantjatjara people who, according to the applicants, held native title rights and interests in the Application Area and are entitled to compensation because their rights and interests were extinguished by certain ‘compensation acts’ that occurred over the period 1979 to 1992. The applicants say that the Northern Territory is liable under the NTA to pay compensation.

3. The Application Area incorporates the Yulara Tourist Village, which provides accommodation and other services for the tens of thousands of tourists who visit Ayres Rock (Uluru) and the Olgas (Kata Tjurta). The Application Area also incorporates Connellan Airport, which is the point of arrival for tourists travelling by air to visit the area.

11. I have made the following findings on these crucial submissions:

(1) In my opinion, the applicants have not shown, on the evidence, that the indigenous witnesses, or members of the compensation claim group, acknowledged and observed the laws and customs of the Western Desert bloc as pleaded in the Points of Claim. Unfortunately for the applicants, the evidence does not reveal a consistent pattern of observance and acknowledgement of laws and customs relating to rights and interests in land. In particular, the evidence does not support acknowledgement and observance of the particular set of laws and customs pleaded and relied on by the applicants.

My finding does not necessarily imply that none of the indigenous witnesses could make out a case that he or she is ngurraritja (traditional owner) for sites in the Uluru-Kata Tjurta area under laws and customs currently observed by people of the Western Desert. My finding is that the applicants have not made out the particular laws and customs that they have chosen to plead and to rely on when presenting their case.

10.2 THE CLAIMANTS’ SOCIETY

194 The applicants say that it is common ground that there is a large area of central Australia that is referred to in the anthropological and linguistic literature as the Western Desert. They particularly rely on an expert report prepared by Professor Peter Sutton  (‘the  Sutton  Report’) to support the pleaded case that the people of the Western Desert share certain cultural characteristics, such as dialects based on a single language, a particular kinship system, a distinctive approach to male initiation and an emphasis on place of birth or conception as the source of rights and interests in land.

195 The applicants also rely on the Sutton  Report to support their contention that the Western Desert has sub-regions corresponding to social, cultural and linguistic variations, including variations in the way that the relationships between people and country are recognised. They submit that the eastern Western Desert is one such sub-region. Somewhat optimistically, they also suggest in their written submissions that the proposition is not controversial.

10.3.3 Relationship with Country

202 The applicants support Professor Sutton ’s proposition that the people of the eastern Western Desert do not identify country as aggregates of discrete bounded areas or estates. Similarly, they urge adoption of Professor Sutton ’s contention that groupings of people associated with country cannot be described as ‘clans’ or other discrete bounded traditional groupings of people. Notwithstanding references in the anthropological literature to local traditional groups or ‘hordes’, they argue that the population of the eastern Western Desert has never been subdivided into named landholding descent-based groups. According to the applicants, this has:

‘the consequence that "the country" of the members of the claim group is not necessarily a single discrete area but is rather a set of partially overlapping tracts of country each of which reflects the particular set of sites to which a particular member is affiliated through the Tjukurrpa. The (arbitrary) location of the claim area merely draws attention to a point in the landscape at which these tracts overlap.’

10.3.5 Claimants are a ‘Person-Set’

206 The applicants urge acceptance of Professor Sutton ’s contention (Proposition 11) that the people who belong to the Application Area are a ‘person-set’ rather than a social group of unitary structure. They argue that the composition of the set rests on individuals asserting one or more relevant significant forms of connection to the Application Area and the manner in which such assertions are received by others. The applicants maintain that:

‘The set itself does not lack structure. Its composition is systematic and derived on the basis of the application of law and custom, though individuated pathways to the holding of rights and to the achievement of authority and status as against other members of the set are involved.’

10.3.6 Language Identification

207 In reliance on Proposition 6 formulated by Professor Sutton, the applicants submit that the following statements relating to language affiliation should be accepted:

‘(a) laws and customs of the eastern Western Desert include affiliation with and use of an eastern dialect of the Western Desert language and the identification of land areas with the dialect variety of the people associated with that land (the linguistic identity of country); (b) the most consistent linguistic identification of the application area is as "Yankunytjatjara" country; (c) linguistic identity labels of the region at the earliest recorded period did not refer to well-bounded "societies" or to populations restricted to the exploitation only of lands of a single linguistic identity; (d) linguistic identity groups were not central to the tenure system of the region in classical times and play a relatively broad-brush role in characterising landed identities today; [and] (e) customary rights and interests in a particular locality do not derive automatically from possession of a particular linguistic identity, nor are one’s rights and interests confined to the geographical area associated with one’s named dialect.’

223 One consequence of the applicants’ approach is that they reject the hypothesis that the acquisition and recognition of rights and interests in land under the traditional laws and customs of the eastern Western Desert are governed by a patrilineal system of land tenure, whereby a person takes interests in his father’s or father’s father’s country. They expressly reject the hypothesis advanced by Mr Norman B Tindale (and supported by other anthropologists), that the people of this area historically followed a patrilineal system. Indeed, Professor Sutton  devoted considerable effort to reanalysing Tindale’s surviving fieldwork data from his 1933 expedition to the Mann and Musgrove Ranges in order to refute the latter’s hypothesis

10.6.2 Interests under Traditional Laws and Customs

246 The applicants’ written submissions appear to acknowledge that the emphasis upon ‘multiple pathways to holding rights in country’ implies some change in practice over time. However, the applicants contend that changing circumstances on the ground led to ‘some shift in the application of the factors [identified by them as traditional]’. It was the circumstances that had changed, not the laws and customs themselves. The applicants place considerable reliance on the opinions expressed by Professor Sutton  and Ms Vaarzon-Morel to support the proposition that the ‘multiple pathways’ identified by individual witnesses reflect the traditional laws and customs of the Western Desert.

10.6.3 Connection with the Application Area

247 The applicants’ submissions in chief do not explicitly devote a great deal of attention to establishing that the compensation claim group had a connection with the application area (as distinct from nearby areas) under the traditional laws and customs of the Western Desert. This approach seems to reflect Professor Sutton ’s contention that the body of laws and customs observed by people of the eastern Western Desert do not include notions of discrete bounded areas or ‘estates’, nor any territorial grouping of people (Proposition 5.3).

257 Thirdly, the Commonwealth submits that the laws and customs under which members of the compensation claim group are said to have possessed rights and interests in, and to have had a connection with the Application Area, cannot be described as ‘traditional’ laws and customs within the meaning of s 223(1) of the NTA. The Commonwealth contends that the applicants’ reliance on the expert evidence is misplaced. Professor Sutton  and Ms Vaarzon-Morel had merely undertaken a statistical analysis of the practices followed recently by people of the region. In effect, the experts had described ‘observable patterns of behaviour’, not normative principles derived from traditional laws and customs. They had failed to consider, or at least consider adequately, whether the practices they had described reflected the traditional laws and customs of the Western Desert.

258 The Commonwealth’s submissions devote much attention to criticising Professor Sutton ’s reworking of Tindale’s field data, compiled during the latter’s 1933 expedition to the Mann and Musgrave Ranges. Mr Hughston submitted that, for a number of reasons, Professor Sutton  had failed in his attempt to demonstrate that Tindale was wrong to rely on the data as showing that the people of the Western Desert followed a system of patrilineal descent for totems and country:

• the materials analysed by Professor Sutton  were incomplete and consequently the conclusions based on the reanalysis were essentially speculative; • the exercise ignored the fact that Tindale based his conclusions not merely on his 1933 data, but on information obtained from later expeditions; • Tindale’s data, when properly analysed, actually provided support for his conclusion that the people he had studied followed a system of landholding based on patrilineal descent; and • the work of other anthropologists, such as Berndt, Elkin, Tonkinson, Munn and Layton, was consistent with the conclusions reached by Tindale

265 The Territory repeats the Commonwealth’s contention that the anthropologists have merely described the actual behaviour of the people they interviewed in the course of preparing their reports. This description, so the Territory argues, is of little or no assistance to the Court. Merely observing behaviour gives no indication of whether the people concerned feel compelled to behave in a particular way; nor does the analysis explain or elucidate the beliefs of the people about the legitimacy of their conduct. Professor Sutton ’s Proposition 7 comprises ‘descriptive’ rules, not ‘legal’ norms acknowledged by the claimants as prescribing the legitimate bases for claims to rights and interests in country.

13.4 THE EXPERTS

284 The applicants base many of their submissions on the expert report of Professor Peter Sutton, an anthropologist who has impressive qualifications. They also rely, although to a lesser extent, on a report by Ms Petronella Vaarzon-Morel, a consultant anthropologist. I refer to their evidence, particularly that of Professor Sutton, in section 15, below.

289 The Commonwealth submits that there are inconsistencies between the evidence of Aboriginal  witnesses and the expert evidence given by Professor  Sutton  and Ms Vaarzon- Morel. Both experts describe the information provided to them by Aboriginal  people (many of whom were witnesses in the proceedings) as ‘folk models’ that can be at odds with the actual behaviour of people. In the words of Professor Sutton :

‘The old rules persist in the minds of older people and may be stated in a simple or conservative form that does not describe at all richly the various solutions younger people have been reaching in practice.’

15. THE EXPERT REPORTS

15.1 THE SUTTON  REPORT

304 The applicants place considerable reliance on the Sutton  Report. At the time he gave evidence, Professor Sutton  was a Professorial Fellow in the School of Social Sciences at the University of Adelaide and an Honorary Research Fellow at the Institute of Archaeology, University College, London. His fields of specialist expertise include social anthropology and linguistic anthropology. Professor Sutton  has published widely in these and related fields and it appears that his publications are well regarded.

305 Professor Sutton  has long experience in preparing reports and giving evidence in land rights and native title claims. He has prepared reports or provided advice in relation to many claims under the Lands Rights Act and has also prepared about a dozen reports in relation to claims under the NTA. From 1991 to 2003, Professor Sutton  acted as ‘self-employed consultant anthropologist’, although he also held some part-time academic appointments during this period. Thus in addition to his academic attainments, he has had extensive forensic experience.

306 Professor Sutton ’s instructions, as recorded in the  Sutton  Report, were to consider a number of ‘Propositions’ and to:

• state whether the Propositions involved subjects in relation to which his specialised knowledge enabled him to express an opinion; • state whether each Proposition, in his opinion, was correct; • identify the facts upon which he relied for that opinion; and • demonstrate the reasoning process by which the opinion was reached. The Propositions on which the Sutton  Report comments were formulated by Professor  Sutton  himself. They reproduce verbatim some (although not all) of the ‘criteria for being a native title holder’ pleaded in the Points of Claim.

307 The Sutton  Report identifies a total of twelve Propositions, each of which has a number of components. Perhaps the most central of these is Proposition 7, which sets out the ‘bases for holding rights in country’. Proposition 7 is as follows:

The laws and customs of people of the eastern Western Desert include rules and principles for recognition of a person as having a strong connection to and holding rights and interests in relation to an area. Under those rules and principles the following eleven factors are the principal bases for regarding any individual as having a strong connection to and rights in an area:

(a) having a "borning place" on or in close proximity to the area; (b) having a borning place, or that of a parent or grandparent, at a place on the track of a Dreaming which travels through the area, particularly if that place is upstream along the narrative site sequence and not overly distant in geographical and mythological terms; (c) having kin links to the area; (d) generation or time depth of identification with the area and history of social interaction with others who are identified with the area; (e) personal identification with the linguistic identification of the area; (f) having religious, sacred, ritual, practical and historical knowledge of the area, being known by the spirits and Dreamings of the area and having authority in respect of those matters, particularly in relation to a Dreaming that travels through the area or sufficiently close to it to be of significance to the area; (g) long association with the area by occupation or use by oneself and relevant kin; (h) taking of responsibility for the area; including involvement in the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship; (i) the assertion of connection with the area, and if necessary, the defence of it against denials of others; (j) support for asserted connections; (k) recorded evidence.’

309 Professor Sutton  expresses the view that Proposition 7 is true. He adds the comment that in the eastern Western Desert (which includes the Application Area):

‘the capacity to assert a relationship of belonging to an area is accretive – that is, a person with several bases of claim has a stronger case for asserting rights and interests, cumulatively speaking, than someone who has only a single basis of claim’.

It follows, as Professor Sutton  recognises, that people can become identified with land independently of descent from others who have previously identified with the same land. To that extent ‘membership involve[s] individual choice’ (at [331], citing F R Myers, Pintupi Country, Pintupi Self: Sentiment, Place and Politics among Western Desert Aborigines (Australian Institute of Aboriginal  Studies, 1986), at 138).

310 The respondents are content to adopt some of the opinions expressed in the Sutton  Report. For example, they do not dispute Professor Sutton ’s view that there is a disconformity between the traditional laws and customs in relation to interests in country, as expressed by the more senior  Aboriginal  people, and the behaviour and practices of the less senior members of the community. Nor do they dispute Professor Sutton ’s view that the senior people sometimes differ in their understanding of the means by which interests in land can be acquired under traditional laws and customs. Otherwise, the respondents vigorously challenge the evidentiary value of much of the Sutton  Report. In order to evaluate that challenge some background is necessary.

311 Professor Sutton  and Ms Petronella Vaarzon-Morel, who describes herself as an independent consultant anthropologist, were engaged by the applicants in late 1998 to undertake a number of tasks connected with the litigation. As I observed in Jango (No 2), at [13], their instructions were wide-ranging and vague. The tasks to be performed by them included the preparation of an expert anthropological report based on their research and fieldwork. Unfortunately, it was not until February 2003, some four years after the initial instructions, that Professor Sutton  and Ms Vaarzon-Morel received supplementary instructions designed to direct their attention to particular questions that were thought to be relevant to the issues in dispute in these proceedings. Even then it appears that they were not informed of the requirements of the Evidence Act governing the admissibility of expert evidence.

312 Professor Sutton  commenced field work in March 1999. In March 2003, he and Ms Vaarzon-Morel completed a joint report (the ‘Yulara Anthropology Report’). During the four years between their engagement by the applicants’ solicitors and the completion of the Yulara Anthropology Report, Professor Sutton  and Ms Vaarzon-Morel undertook, between them, at least 398 days of ‘desk research’ and ‘non-ethnographic interviews’ and 99 days of ‘ethnographic field work’. The Yulara Anthropology Report itself comprised 364 pages and some 6,000 pages of appendices.

313 The respondents took many objections to the admissibility of sections of the Yulara Anthropology Report. In a ruling on evidence delivered on 3 August 2004, shortly before resumption of the trial after twenty-eight hearing days, I rejected much of the Yulara Anthropology Report: Jango (No 2). I pointed out that the Report had been prepared with ‘scant regard for the requirements of the [Evidence Act]’. I attributed the defects of the Report from an evidentiary perspective, at least in part, to the vagueness of the instructions provided to the authors and the failure to inform them of the requirements of the Evidence Act. I also observed (at [15]) that it was not clear to me why it was thought necessary for the anthropologists to carry out such extensive interviews of witnesses and potential witnesses for the purposes of preparing their report.

314 The Sutton  Report was completed on 27 October 2004, some three months after the ruling on evidence given in Jango (No 2). The Sutton  Report, as the evidence revealed, was in effect compiled by the applicants’ legal representatives, essentially by selecting and recasting material derived from the Yulara Anthropology Report. It appears that Professor Sutton ’s involvement in the process was limited to perusing the revised draft with a view to correcting factual or typographical errors. When asked about the reason for the omission of some apparently relevant material from his revised Report, Professor Sutton  attributed the removal to the ‘lawyers’ Occam’s Razor’. Even taking into account time pressures, it must be said that this is an odd way for an expert to prepare the final version of a report which is to be tendered in legal proceedings and which is said to be central to the applicants’ case.

315 There is no doubt that Professor Sutton  is very well qualified and has extensive experience as a social anthropologist and linguistic anthropologist. Although in recent years he has spent much of his time preparing reports or giving evidence in Aboriginal  land claims and native title cases, he has published extensively in his fields and, as I have noted, his publications are highly regarded. Moreover, it is clear that he has spent a great deal of time undertaking research and field work for the purposes of the present case. Some of the opinions expressed in the Sutton  Report reflect careful analysis of the available material. Even so, in my opinion, there are a number of significant difficulties with the Sutton  Report that affect the cogency of certain conclusions reached by Professor  Sutton. 316 First, despite Professor Sutton ’s qualifications, he readily acknowledged in evidence that he is not an expert in the traditional laws and customs of the Western Desert region and indeed had not been briefed in the present proceedings as such an expert. He agreed that his role was to acquire knowledge over a period of time sufficient to enable him to express an opinion on the issues ultimately identified in the Sutton  Report. Indeed in the Yulara Anthropology Report, in a passage not repeated in the Sutton  Report, Professor  Sutton  expressed the view that he and Ms Vaarzon-Morel had ‘learned enough to enable us to reach the conclusions set out in the report’. Professor Sutton  also acknowledged in evidence that:

‘ideally [the expert’s work] should have been done by someone who is in the same position as I am in relation to the Wik case; in other words, someone who’s lived in the bush for months or years and has that intimate knowledge and ... the experience of dealing with the legal arena to take it through a complex and difficult test case’.

317 The evidence suggests that several anthropologists who have apparently undertaken extensive field work with Western Desert people either refused to accept or withdrew from the role of expert witness for the applicants. The evidence does not reveal the reasons for their inability or unwillingness to perform that role. The point for present purposes is that there are anthropologists in Australia with greater expertise and field work experience in the Western Desert region than Professor Sutton.

318 The second difficulty is related to the first. Because Professor Sutton  lacks expertise and experience in relation to the traditional laws and customs of the Western Desert people, he had to spend a great deal of time acquiring sufficient knowledge to enable him to express opinions on the matters identified in the  Sutton  Report. This required him not only to familiarise himself (to the extent he was not already familiar) with the anthropological literature, but also to interview a large number of people who claimed to have ties to the Application Area or nearby country. To this end Professor Sutton  spent 245 days of desk research and 52 days of field work on the tasks prior to completion of the Yulara Anthropology Report. Thereafter he spent a further 187 days on work connected with the case, some of which apparently involved addressing objections to the Yulara Anthropology Report.

319 Having regard to the provenance of the Sutton  Report, its conclusions are necessarily dependent in part on information derived from indigenous informants. It is significant, in my opinion, that the field work designed to gather that information was undertaken in the context of the very litigation in which the claims of many of the informants were formulated and assessed. Professor Sutton  did not have the opportunity to carry out field work among peoples of the eastern Western Desert in an environment divorced from their pending claims to compensation. Much less did he have the opportunity to study and describe the traditional laws and customs of these peoples as part of what might be described as a disinterested academic endeavour. Many, if not all of Professor Sutton ’s informants were aware that a compensation claim was pending at the time they spoke to him and were also aware that their observations might be used for the purposes of the litigation. While I do not doubt that Professor Sutton  attempted to maintain his independence from the claimants, the fact is that he undertook the field work and other research for the purposes of preparing a report in support of their case and did so while the claim was pending.

320 The number of days Professor Sutton  devoted to field work demonstrates clearly enough that he took his responsibilities seriously. But it is equally clear that the process of interviewing informants was fraught with difficulties. These included the following:

• Despite allotting over 400 days to research and field work, Professor Sutton  operated under time constraints which, as he acknowledged, affected the quality of information that he was able to obtain from his informants.

• The eastern Western Desert is one of the most difficult regions of Australia in which an anthropologist can work. This is partly because, in Professor Sutton ’s words:

‘the regional cultural tradition militate[s] most strongly against a rapid imparting of information relating to the sacred domain and to the interests of persons in places’.

For this and other reasons (including an understandable reluctance to be questioned by yet more anthropologists), informants were often reticent about providing the information sought by Professor Sutton. Their reticence extended to information concerning the persons said to hold traditional interests in the Application Area and nearby country.

• Professor Sutton  was frequently unable to secure a ‘reliable interpreter’ and thus ‘in general’ was forced to work without one. It is true that Professor Sutton  has had some formal training in the Pitjantjatjara language and, as he said in evidence, was on a ‘fast learning curve’ while conducting his field work. Even so, his inability to obtain a reliable interpreter prevented him from acquiring a full understanding of what some of his informants were endeavouring to convey. In his evidence, Professor Sutton  tended to minimise this difficulty and suggested that many informants spoke ‘English adequate to basic day to day purposes of communication’. However, having seen a large number of indigenous witnesses give evidence, including many of those interviewed by Professor Sutton, I cannot accept that their knowledge of English was generally adequate to overcome gaps in an interviewer’s knowledge of their own language. This is particularly the case insofar as the communications related to their traditional laws and customs.

• Professor Sutton  readily accepted that some of the information provided by his informants was unreliable. He said that he adhered to the following view expressed in the Yulara Anthropology Report:

‘The people of the study area have demanding obligations towards close kin, and at times we recorded statements supporting the assignment of strong local country connection to relatives who, on objective grounds, had rather tenuous connections to that place. At times it was difficult to be sure whether these statements were genuine attempts to include those kin or perhaps at times genuflections designed to discharge duties of loyalty, but without too serious an intent. At other times it seems clear that the inclusions were firmly intended. Some people who supported such inclusions of close kin, who had marginal connections were also recorded as being prepared to deny the claims of those who are connection [sic] to a comparable depth but who were the relatives of other people.’

Moreover, he acknowledged that some indigenous people from this area of the Western Desert ‘manipulated’ their place of birth in order to enhance their prospects of succeeding in a compensation claim. He gave as an example Nipper Winmati, who had given or been provided with a number of alternative birthplaces between 1962 and 2003. Professor Sutton  opined that what he described as a ‘cultural difference’ about telling the truth was linked to the fact that:

‘sheer survival in the Western Desert in the past demanded a highly opportunistic strategy for gaining access to resources’.

• Professor Sutton  accepted that in the course of his research he came across a number of apparent factual contradictions regarding individuals and their interests in country as recorded in earlier records for the study area. He agreed that there is a ‘high level of contestation of claims’ in this area and that the:

‘contradictions [among Aboriginal  informants] were never easy to separate into mere differences of opinion or memory as against differences engendered by competition and politicking’. He accepted that individuals would occasionally move their birthplaces to ‘an area of great interest’, such as the focus of a land claim, quite deliberately in order to obtain financial benefits. In re-examination, Professor Sutton  observed that in his research with  Aboriginal  people he had come to expect a ‘range of variation’ in the factual materials but that ‘this is the highest point on that range I have experienced’.

321 Despite the contradictions and disputation to which he referred and his ‘strong sense’ that people were sometimes ‘fictionalising’, Professor Sutton, understandably enough, did not see it as part of his role to make judgments as to the veracity or reliability of the information on which he acted. It is fair to say (as the Commonwealth argues) that, in effect, Professor Sutton  carried out a form of parallel inquiry to that undertaken by the Court, but without many of its advantages (such as the opportunity for cross-examination) and without having to make judgments as to the reliability of the information provided.

322 Thirdly, I formed the view that Professor Sutton  played an active part in formulating and preparing the applicants’ case and that this participation influenced both the way in which their case was presented and Professor  Sutton ’s approach in giving evidence. I understand and accept that in the peculiar circumstances of a native title claim (including a compensation claim) it may be difficult for an anthropologist to remain as aloof from the parties as might be the case with, say, an expert economist or accountant in other kinds of litigation. Anthropologists might be expected to have had close contact with the peoples about whose laws and customs they are asked to comment and to have genuine affection and respect for the peoples whose laws and customs they have studied. I also accept that Professor Sutton  was conscious of the problems that can arise from too close an identification with the claimants on whose behalf he is preparing a report. In particular, I do not doubt the sincerity of his claim to have been at pains to maintain his independence while conducting field work and preparing reports.

323 But the fact remains that the applicants’ case, as Professor Sutton  was aware, closely follows the framework he created. Of course, the circumstance that a pleaded case closely corresponds with the evidence of an expert witness may simply reflect the expert’s independent analysis of the objective facts. In this case, however, my strong impression was that the presentation of evidence by the applicants was heavily influenced by the approach taken by the two anthropologists. Professor Sutton  acknowledged, for example, that he had spent considerable time commenting on draft witness statements. He denied that he ‘settled’ the statements, maintaining that his role was limited to ‘comment[ing] on factual accuracy’, including pointing out disagreements with the genealogical connections he had prepared. Nonetheless, Professor Sutton  and, I infer, Ms Vaarzon-Morel, clearly played a significant part in shaping witness statements. It would have been very difficult for them to comment on witness statements without taking into account their understanding of the applicants’ case and the approach taken in their own reports.

324 Professor Sutton ’s role in framing and presenting the applicants’ case went beyond these matters. He rejected the original version of the Points of Claim, which had relied on the concept of ngurraritja as the foundation for the existence, prior to extinguishment, of native title rights and interests in relation to the Application Area. Professor Sutton  said in evidence that he found that version to be ‘so at variance with my own findings, that I said I couldn’t possibly work with it or its author’. He took this view notwithstanding that the ngurraritja model was similar to that advanced in the Tempe Downs Land Claim, the applicants in which included some members of the compensation claim group in the present proceedings. Professor Sutton  was, however, apparently satisfied that the Points of Claim as ultimately drafted were ‘compatible with [his] approach’.

325 Professor Sutton  also acknowledged that he had given advice concerning informants whom he considered would be good witnesses, although he denied that he gave advice as to who would be ‘a bad witness in terms of the facts’. Moreover, Professor Sutton  and Ms Vaarzon-Morel were present at most of the hearings at which evidence was taken. Professor Sutton  usually sat in close proximity to counsel for the applicants and, as I observed (and he acknowledged), suggested questions to counsel from time to time.

326 In these circumstances, it is perhaps not surprising that I detected a tone of defensiveness in Professor Sutton ’s evidence while being cross-examined. This tone cannot be attributed to any undue aggression or combativeness in the cross-examination. Mr Hughston and Mr Pauling QC (the Solicitor-General for the Territory) conducted their questioning in a restrained and courteous fashion. Rather I thought that Professor Sutton ’s defensiveness was a product of his realisation that his role in the case had not been limited to that of a wholly objective expert observer and commentator. An illustration of Professor Sutton ’s defensiveness occurred when he was being cross-examined about the grounds for his disagreement with the conclusions reached by the late Norman Tindale, who conducted a number of significant expeditions to the Western Desert and wrote many papers, reports and books arising out of his work and received honorary doctorates from two universities. Professor Sutton  commented disparagingly on Tindale’s qualifications, offering the observation that ‘his big field was really insects’.

327 Fourthly, Professor Sutton ’s approach, while it may conform to what he described as the ‘anthropological method’, departs from the assumptions underlying the definition of ‘native title’ in the NTA and is therefore of limited assistance in applying the criteria specified in that section. Early in the Sutton  Report the author says this:

‘46. I have made a number of records of informants’ statements about how one rightfully may belong to a place, or how one should behave according to customary rules to do with sites, country, marriage, religious matters and so on. These are useful guides as to how people formulate principles. Such statements do not, however, alone account for or predict how people relate systematically to places or how they in practice allocate rights and interests in them. They are "folk models’ – usually fragments of them – that contribute important subjective knowledge to the record. An anthropological model, on the other hand, has to take into account what can be learned from people’s actual behaviours, including other statements, as well. A senior man may say, for example, that strong interests in a country can only come from having a birthplace there or a father from that place, but it is apparent that there are many cases which do not conform to this "rule".

47. For these reasons, anthropologically, it would be both unsophisticated and counterproductive to reduce the category of evidence for traditional "laws and customs," for example, to verbal formulations that might be elicited from particular Aboriginal  informants or witnesses. The "normative" covers not only explicit rules but also the reflection of the assumption of a norm, and average or typical behaviour as well as ideal norms. I take as an accepted fact that this is a cultural tradition in which it would be abnormal, perhaps even inconceivable, for people to produce explicit, full and objective articulations of how their social order works. Anthropologists rely on the combined informant evidence along with documentary evidence in order to gradually form a systematic picture of topics such as customary ways of recognising rights in country’. (Emphasis added.) A little later Professor Sutton  observes that:

‘50. ... The old rules persist in the minds of older people and may be stated in ... a simple or conservative form that does not describe at all richly the various solutions younger people have been reaching in practice. Even if an older person may disagree with some such developments, and may even consider them less than lawful in the customary sense, the fact that these shifts occur mainly in a rather organised fashion and as an extension rather than a reversal of tradition means that one can reduce them to systematic generalisations’. (Emphasis added.)

328 In par 47, Professor Sutton  makes it clear that he regards ‘normative’ behaviour as including ‘average or typical behaviour’. He therefore interprets the concept of normative behaviour as including conduct other than that which conforms to accepted rules or standards. Professor Sutton  acknowledged the point in cross-examination:

‘MR HUGHSTON: You see a distinction, don’t you, between what you consider to be the anthropological approach to what may be normative and the legal approach to what may be normative?

PROF SUTTON : Yes, absolutely.

MR HUGHSTON: And what you’ve addressed in your report is the anthropological as opposed to the legal?

PROF SUTTON : Yes.

HIS HONOUR: What do you understand to be the difference, Professor Sutton ?

PROF SUTTON : One I know about, and the other I don’t claim I know about, is the basic difference. I have read ... legal material where the term crops up. But I’ve tried to be as scrupulous as possible in this report to restrict my use of that term, and also of the terms "rights and interests" and "laws and customs" to purely anthropological ...’

329 Professor Sutton  was also questioned in cross-examination about the significance of the last sentence of par 50 of his Report, reproduced at par 327, above. He explained it as follows:

‘It’s my experience generally that old people will tend to have ... an ossified view of what the rules are for acquiring interests in places. They may even disagree with young people who say, well look my father was a white man, I’ve got no other choice than to take country through my mother. The old man might say, well you’ve got to take it through your father, and so you’re all lost or whatever; I’ve heard people say things like that.

That’s not the only view available to the anthropologist or I guess to the legal system; there are younger people whose views matter and exist, but also what they actually do, if you interview enough people you’ll find quite often there are a range of solutions people have come to; they don’t all just take it through the mother ...’.

330 Professor Sutton ’s approach is difficult to reconcile with the applicants’ submission that the laws and customs of the eastern Western Desert include acknowledgement of and respect for the authority of senior and knowledgeable people. It also gives rise to the question of whether ‘the various solutions younger people have been reaching in practice’ are consistent with the traditional laws and customs of the Western Desert.

331 In this connection, Professor Sutton  was asked to explain what he intended to convey by the expression ‘an extension rather than a reversal of tradition’ in par 50 of the  Sutton  Report. He said that an extension of tradition:

‘would be something like giving greater recognition to other ancestors than one particular one, if that had been the rule. In this case I think it’s giving greater attention to factors other than place of birth, in other words it’s shifting the balance. HIS HONOUR: Are you intending to convey that the more flexible, if that’s the right word, approach of the younger generation can be accommodated within traditional rules; is that the point you’re making? PROF SUTTON : Yes, I believe so, because a reversal would involve, for example, a shift into something like a market economy, or private personal ownership and those would be fundamental shifts or reversals. What I’m talking about is a movement of emphasis from a clear primacy being given to birthplace to more [of] a constellation approach, including birthplace’. 332 In response to a question from me, Professor Sutton  accepted that these observations reflected an implicit value judgment, namely that the ‘shift’ or ‘movement of emphasis’ he identified is consistent with the traditional norms and customs of the eastern Western Desert and does not amount to a new construct or norm. Professor Sutton  described the value judgment as ‘ultimately a political question and therefore a legal question in this case’.

333 The question of ‘continuity’ is dealt with in Part 7 of the Sutton  Report. Proposition 10, which is in Part 7, is as follows:

‘10.1 The people of the eastern Western Desert were at sovereignty and are today a body of persons united in and by their acknowledgement and observance of laws and customs, which at all such times without interruption, but subject to adaptive change, have been and are acknowledged and observed in their application to the inner study area.

10.2 The body of laws and customs has been passed down through the generations of the people of the eastern Western Desert by word of mouth and common practice from the society at sovereignty until today.’

334 The reasoning in Part 7 of the Sutton  Report is important for certain aspects of the case. It does not explain in any detail, however, why the ‘solutions’ reached by younger people can be described as ‘adaptive’, in the sense that they conform to the traditional laws and customs of the eastern Western Desert. Part 7 focuses instead on whether people of the eastern Western Desert:

‘today observe certain social laws and customs that were also practised in the nineteenth century and earlier.’ In the course of that analysis, Professor Sutton  opines that in several respects there have been significant continuities in certain social laws and customs. But his analysis does not address whether the elements identified in Proposition 7 are consistent with the traditional laws and customs of the Western Desert. Indeed, Professor Sutton  agreed in evidence that the Report does not specifically address or answer that question.

335 Some of the difficulties to which I have referred can be exemplified by reference to an opinion expressed by Professor Sutton. Part 6 of the Sutton  Report deals with eastern Western Desert laws and customs. In the course of addressing that topic, Professor Sutton  says this:

‘193 In the eastern Western Desert, Aboriginal  Law – that is, the religious system of knowledge and behaviour – is the foundation of rights in country (as well as the other rules by which people conduct themselves.) This term "Law" glosses one of the main senses of the terms Tjukurr(pa) or Waparr. The assumption of that Law is that proper modes of behaviour in relation to country and for claiming interests in country are in essence or ultimately laid down in the Dreaming by ancestral legendary figures. ... 198 In relation to the opinion expressed in paragraph 193, the people among whom Ms Vaarzon-Morel and I conducted field work continually emphasised Aboriginal  Law as the foundation of rights in country and other rules of behaviour. I rely on what I was told by my informants as assumed fact. Talk about such things was repetitive. I recall, but did not always record conversations in which traditional Law was the focus of assertions of rights in land. However, see my conversations with people, including Windlass Aluritja, Donald Fraser, Tony Tjamiwa, Malya Teamay, Johnny Jingo, Timothy Wood, Walter Pukutiwarra, Reggie Uluru, Judy Trigger, Nellie Armunta and others.’ The last sentence in this extract is supported by a footnote reference to 23 separate pages of the field notes taken by Professor Sutton.

336 Mr Pauling took Professor Sutton  to each of those pages and invited him to identify the entries that supported the matters recorded at par 198 of the  Sutton  Report. At the outset of this exercise Professor Sutton  somewhat defensively volunteered the remark that the proposition in the Report:

‘is not in a sense a simple reflection of every note that is referred to in the footnotes. The material in the footnotes cumulatively adds up to a gradually pieced together picture of the system’.

Scrutiny of the notes cited in the relevant footnote provides scant support for the conclusion that the notes recorded conversations in which traditional law was the focus of assertions of rights in land. Many of the notes (as one might expect) are cryptic and therefore difficult to interpret. But on their face the words recorded do not appear to justify the proposition that the informants ‘continually emphasised Aboriginal  Law as the foundation of rights in country’.

337 Two particular examples help make the point. One note (as deciphered by Professor Sutton ) reads as follows:

‘Old men pointing to the Yulara Block. Especially Mick using the word "kurnta" make all the watis shame, no 50/50 nothing’.

The cross-examination on this entry speaks for itself:

‘MR PAULING: Well, what’s that got to do with the foundation of rights in country?

PROF SUTTON : I think this is an assertion that the Dreaming content of the country is the foundation of the assertion of the right to expect some kind of compensation: 50/50 as it’s put.’ Another note (again as deciphered by Professor Sutton ) records an informant stating that the Marlu (Red Kangaroo) Tjukurrpa went through the airstrip area on the western side. This note is accompanied by a rough sketch. Nothing on the page supports Professor Sutton ’s hypothesis.

338 These criticisms of Professor Sutton ’s approach do not justify rejecting all the opinions expressed in his Report. Some are supported by careful analyses of the available material and are consistent with other evidence. Other opinions, however, require careful scrutiny of the reasoning process underlying them, particularly where the opinions have been challenged in cross-examination. Not all command acceptance.

16.1 THE WESTERN DESERT CULTURAL BLOC: AN ANTHROPOLOGICAL CONSTRUCT? 16.1.1 Professor Sutton ’s Views

345 It is common ground that there is a large geographical area or region in central Australia that is referred to in the anthropological and linguistic literature as the ‘Western Desert’. Professor Sutton  identifies the ‘established sense’ of the term as follows:

‘a chain of mutually intelligible dialects whose speaker-owners’ lands are roughly contained within the area between Balgo, Kalgoorlie, Ooldea, Coober Pedy, Erldunda and Papunya’.

Professor Sutton  supports his opinion by reference to numerous published sources and points out that Norman Tindale was the first anthropologist to adopt the expression in 1936. Professor Sutton  takes as representative of the boundaries of the Western Desert those recorded in a map prepared by Amee Glass, Cohesion in Ngaanyatjarra Discourse (Summer Institute of Linguistics, 1997). (The map is reproduced as Map 3.)

346 Professor Sutton  expresses the view (Proposition 2.1) that in the anthropological literature the ‘Western Desert’ is associated with  Aboriginal  people who share, although not uniformly, certain cultural characteristics. He identifies those characteristics as follows:

‘(a) identification with varieties or dialects of the one language, which in turn is associated with the Western Desert, but has no single indigenous name. The dialects of the language of the Western Desert include Yankunytjatjara and Pitjantjatjara; (b) association with a particular kinship system not found elsewhere in Aboriginal  Australia; (c) an emphasis on generational moieties in ritual and marriage organisation; (d) a distinctive approach to male initiation; (e) the strong role of an "accidental" factor of birth or conception in land tenure; and (f) an absence of certain kinds of local and social organisational institutions found elsewhere in Australia.’ Given that the Commonwealth criticises the applicants’ use of the Western Desert as amounting merely to an ‘anthropological ... construct’, it is important to appreciate that Professor Sutton  expresses the following opinion:

‘The cultural and linguistic unity of the Western Desert is recognised by Aboriginal  people of the region. The "Western Desert bloc" as it is known among scholars is not merely an analytical construct arrived at by non- Aboriginal academics, but the academic recognition of a pre-existing unity of a striking nature, given its size relative to other cultural blocs in  Aboriginal  Australia.’

347 Professor Sutton  justifies this opinion by reference to his own experience in ‘studying the regional features of  Aboriginal  Australia’, as well as his examination of the relevant anthropological literature. In particular, he states that the self-recognition by Western Desert people themselves of their cultural unity is not surprising once it is accepted that:

‘the Western Desert is linguistically a single language, consisting of a chain of mutually intelligible dialects, with for the most part considerable differences, amounting to mutual unintelligibility, in relation to its neighbours.’

He also opines that the absence of any internal label for the Western Desert, such as a tribal name, is of no moment anthropologically and does not vitiate the social and cultural unity of the bloc.

16.1.2 The Evidence

348 Neither of the respondents cross-examined Professor Sutton  on this aspect of his evidence. For the reasons I have given, the absence of any such challenge does not necessarily compel acceptance of his views. However, they seem to me to be supported by the material to which Professor Sutton  refers in his report. Furthermore, I see no reason why the fact that Aboriginal  people do not adopt a particular expression to describe a given group of people (or indeed use no expression at all) negates the proposition that the group is capable of constituting a society, the members of which acknowledge and observe a body of laws and customs. The absence of a word or expression in the Yankunytjatjara or Pitjantjatjara dialects to describe the Western Desert bloc does not determine the answer to the question posed in Yorta Yorta (HC).

16.2.2 Continuity of the Society

354 As Professor Sutton  points out, there is no direct observational evidence as to the kind of society that existed in the eastern Western Desert prior to the acquisition of sovereignty by the Crown in 1824 or 1825. However, on the basis of archaeological, biogenetic and comparative linguistic data, he suggests that by about 1000 AD a society of Western Desert speakers had probably become established on the south-western fringes of the Arrernte region. He also suggests that the Western Desert languages have been differentiating internally over a period of between 500 and 1000 years. In his view, the high proportion of shared basic vocabulary between Yankunytjatjara and Pitjantjatjara (about 80 per cent):

‘is strong evidence that a Western Desert-type society organised principally on the basis of particular structural principles of classificatory kinship and affinity has been operating in the wider study area for at least a few centuries’.

There was no challenge to the evidence and I accept it. I infer that the position as described by Professor Sutton  remained intact until the first contact between Europeans and  Aboriginal  people.

356 The evidence also establishes that contact between Aboriginal  people in the area and Europeans occurred at intervals until Tindale’s 1933 expedition to the Musgrave and Mann Ranges. Some population movement also occurred. The severe drought of 1914-1915, for example, forced some Pitjantjatjara people to the east. As late as 1926, the Mackay expedition came across tribal Aboriginal  people about to participate in initiation rites near Kata Tjurta. There can be little doubt that there was a continuous presence of Aboriginal  people in the area until the time of the Tindale expedition, although of course the nature and extent of the presence was dictated by the extremely harsh environment. Professor Sutton ’s analysis of Tindale’s case material supports the proposition that Tindale’s informants followed cultural practices, including belief in the Tjukurrpa and adoption of a system of generational moieties, that were consistent with practices that (in the recollections of the informants) extended back to the middle of nineteenth century.

357 Professor Sutton  undertook a detailed analysis of a variety of materials in order to demonstrate that there has not been any ‘long term full hiatus’ in people’s connection with the study area. The source material includes, but is by no means limited to, information provided to Professor Sutton  or Ms Vaarzon-Morel by the  Aboriginal  people they interviewed. However, the information cited by Professor Sutton  is often supported by the direct evidence of  Aboriginal  witnesses

368 These observations are consistent with Professor Sutton ’s own opinion, recorded in his published works, that the Western Desert is the region of Australia that seems to have experienced the greatest demographic instability at the time of colonisation. He attributes this state of affairs to the ecological uncertainty that people faced, before the water bores were introduced and imported food became available. Professor Sutton  also accepts that ‘incursive movements’ to the east and southeast of the Western Desert occurred during the earliest colonial phase: P M  Sutton, Native Title in Australia: An Ethnographic Perspective (2003), at 143.

373 Professor Sutton  anticipated that the respondents would rely on these studies to dispute the argument that the people of the Western Desert were, at sovereignty and in more recent times, a body of people united in and by their acknowledgement of traditional laws and customs. He contended that Tindale had been incorrect to suggest, in effect, that there had been large scale tribal movements in the Western Desert. Professor Sutton  re-examined Tindale’s 1933 field data and concluded that the evidence suggests a

‘pattern of multiple small-scale movements of individuals and families, many to the east, but some in fact to the west, and with some other people apparently remaining more or less in their original areas.’

374 In my opinion, Professor Sutton ’s attempt to rework Tindale’s 1933 data is not a particularly helpful exercise for the purposes of this case. No doubt there is a legitimate academic interest in reconsidering the views of the early anthropologists by reassessing such primary materials as may have survived. But Tindale’s views on migratory patterns were not based solely on the data compiled from his 1933 expedition. In any event, much of Professor Sutton ’s reassessment rests on assumptions that are impossible to verify at this distance in time. In particular, as Professor Sutton ’s evidence in cross-examination shows, it is by no means clear that Tindale’s views, insofar as they were derived from his 1933 expedition, were based exclusively on the material re-analysed by Professor  Sutton.

375 Nonetheless, I consider that the Commonwealth’s submissions overstate the significance of the anthropological literature relating to migration within the Western Desert, insofar as the submissions rely on that literature to challenge the continued existence of the Western Desert bloc as a society. It is necessary to bear in mind that none of the anthropologists appears to have regarded the movement of people in the Western Desert as a novel phenomenon. For obvious environmental and survival reasons, population shifts predated European settlement of central Australia. The ‘displacement’ of some people from their traditional lands, either temporarily or permanently, is inconsistent neither with the survival of Western Desert bloc as a society nor the continued existence of at least some of its traditional laws and customs.

377 While I do not think that Professor Sutton ’s reworking of Tindale’s data is helpful on the question of migratory patterns, I think that there is more force in the distinction he draws between ‘residential migration’ (physical relocation) and ‘tenurial migration’ (a shift of ‘primary abstract ties’ from one country to another). There is no doubt that the apparent attractions of the missions and the opportunities for work and accommodation in the wake of European settlement led to the relocation of many people of the eastern Western Desert to places like Ernabella and Mutitjulu. The Commonwealth correctly points out that many of the Aboriginal  witnesses and their families have chosen to live in settlements, sometimes (but not always) far from their traditional lands.

16.4 THE EASTERN WESTERN DESERT

16.4.1 Professor Sutton ’s Analysis

379 According to Professor Sutton  (Proposition 3), the sub-regions of the Western Desert correspond to social, cultural and linguistic variations, including variations in the ways in which the relationships of people to land are recognised. Professor Sutton  acknowledges that the people of such sub-regions are not readily separable from the people of neighbouring sub-regions with whom they interact, intermarry and share most cultural features. Nonetheless, in his view, the eastern Western Desert is characterised by ‘high dialectal unity, a common kinship system and mostly similar religious organisations’.

380 Professor Sutton  identifies the fundamental concept in the belief system and the laws and customs of the people of the eastern Western Desert as that of the Tjukurrpa (Proposition 4). It is the Tjukurrpa that:

‘(a) explains the creation of the land;

(b) is evidenced by the particular features of the landscape; (c) lays down the rules or principles by which people both relate to and conduct themselves in relation to land and waters; (d) lays down rules or principles by which people otherwise conduct themselves; and (e) provides a framework for country through constellations of sites associated with particular Tjukurrpa.’ 381 Professor Sutton  also expresses the following views (Proposition 5):

‘5.1 Laws and customs of the eastern Western Desert include a kinship system. An integrated section or subsection is absent. In this part of the Western Desert there is no integrated system of sections and subsections. 5.2 Laws and customs of the eastern Western Desert include an alternate generational moiety system. This system involves marriage rules and incest taboos. Patrimoieties and matrimoieties are absent. There are no patrilineal or matrilineal moieties in the region.’ 382 He explains that like other Aboriginal  people with a ‘classical or "traditional" orientation’, people of the eastern Western Desert class all other  Aboriginal  people with whom they interact in terms of genealogical categories or kinship. Accordingly, people tend to emphasise the reality of nurturing and responsibility over the so-called facts of physical parentage. Moreover, a single term is used for both grandfathers (tjamu) and another for both grandmothers (kami). Hence it is sometimes difficult, for example, to ascertain whether a kami is a person’s paternal grandmother or maternal grandmother.

383 Professor Sutton  explains the alternate generational moiety system this way:

‘One’s own moiety is that of one’s siblings, and those classed as such, along with the children of those classed as one’s parents’ siblings, and that of one’s grandkin .... One’s own moiety is referred to as nganantarrka ("we-bone"). The opposite moiety is that of the remaining, alternate, generations: one’s parents and their siblings, one’s own and one’s siblings’ children, and one’s great-grandkin. The opposite moiety is referred to as tjanamilytjan(pa) (probably from "they-flesh").’

399 One difficulty facing the applicants is that there is a lack of congruence, if not an inconsistency, between their pleaded case (to which they adhered) and the way in which they presented their evidence and arguments. The lack of congruence is apparent from the evidence of Professor Sutton, on which the applicants place heavy reliance. In contrast to the case pleaded in the Points of Claim, Professor Sutton ’s Proposition 7 (reproduced in par 307, above) identifies eleven ‘rules and principles’ for determining whether an individual has ‘a strong connection to and rights in an area’ under the laws and customs of the Western Desert. Professor Sutton  states that a person’s capacity to assert a ‘strong traditional connection’ with land is ‘accretive’, in the sense that a person with several bases for a claim has a stronger case for asserting rights and interests than someone with only a single basis. The applicants’ written submissions follow the structure adopted by Professor Sutton  in Proposition 7 and reproduce in substance the eleven rules and principles identified by him.

400 Professor Sutton  does not explain in any depth the interrelationship between the eleven criteria he identifies. He appears to acknowledge that land ownership in the Western Desert is an ‘elusive matter’ (citing Professor F R Myers) and involves an element of ‘individual choice’. In cross examination, Professor Sutton  accepted the proposition that a person who satisfies only one of the eleven criteria does not necessarily have a strong connection with country. He was not, however, invited to elaborate on this evidence.

401 Neither Professor Sutton ’s written nor oral evidence supports the applicants’ pleaded contention that under the traditional laws and customs of the Western Desert a person must satisfy one of four specific conditions in order to acquire and hold rights and interests in country. Nor does Professor Sutton ’s evidence support the concept of additional (but subordinate) factors that, of themselves, do not create a connection with country, but can determine the strength of a connection that is independently established. For these and the other reasons I have set out in detail earlier in this judgment (section 15.1, above), Professor Sutton ’s evidence is of limited value in supporting the applicants’ case.

17.3.3.2 Dr Willis’ Evidence

433 Dr Willis’ evidence was not affected by the difficulties of communication that I have taken into account in considering the evidence of the indigenous witnesses. However, in my opinion, Dr Willis’ evidence does not substantially advance the applicants’ case on the existence and content of laws and customs relating to rights and interests in land. Indeed, to the extent that his evidence bears on the question, it appears to be inconsistent in some respects with that of Professor Sutton.

434 One point of inconsistency concerns the following statement by Professor Sutton :

‘Unlike some other regions it appears that in this region it is not always or even often the case that sets of sites on a Dreaming track are sorted into songline segments that are relatively fixed in extent. This scarcity of evidence of fixed and objectified songline segments correlating with localised "countries" is a major reason why it is difficult to apply the construct of "estates" to strings of Dreaming sites in this case, and why the notion of more of [sic] less constantly fixed claimant subgroups based on shared interests in such strings is also therefore inapplicable.’

By contrast, Dr Willis explained the position this way:

‘Regions contain discrete clusters of sites, which means that, at least at the level of narrative, we think of country being divided up in terms of the stories that run through it – so a stretch of country might be thought of as a discrete chapter in a much larger book. Tjukurpa stories make up narrative blocks, or episodes, that run across a stretch of country, and I believe that these clusters are bounded by breaks in country that are mirrored in narrative breaks in associated stories. Because of the nature of the activities of ancestral beings, and the variations in the signs of their activities in the landscape, there is no general and simple "narrative rule" that can be articulated for the general case (for example, to determine the boundary of a story, count three sites distant from the tjukurpa site in each direction along the track), however I believe that narrative clusters can be articulated by Anangu for each story in a particular region. Despite the fact that such a rule does not exist in an abstract form that can be generalised to every case, there does appear to be a kind of geographical syntax to the boundaries of these clusters that could be thought of as a general rule (although there are no doubt many exceptions to this general rule): for example, many stories include geographic "breaks", long travels underground or through the air, or long stretches of country where there are no sites associated with inma verses.

An alternative metaphor for understanding how the narrative breaks in country may relate to the division of responsibility for stories between Anangu with close ties to bordering countries is the image suggested to me in 2000 by a senior Yankunytjatjara man, Yami Lester, of a "college" that is responsible for a bounded section of story, with each "college" having a principal. Anangu appear to be only able to belong to one "college" by virtue of their birthplace and/or that of their parents and grandparents.’

435 In his cross-examination, Dr Willis agreed with a suggestion put to him that both an Arnangu and an anthropologist undertaking field work could identify the boundary points where each particular cluster of sites ends and a new cluster begins. Although Professor Sutton  suggested in the course of his cross-examination that there was a ‘fair area of overlap’ between his analysis and Dr Willis’ description, it is difficult to avoid the conclusion that their views on this issue are quite different.

436 Professor Sutton  apparently intends the passage I have quoted (par 434, above) to support Proposition 5.3, which asserts that the people of the Western Desert do not identify country as discrete bounded areas or ‘estates’. It seems not to be put in support of Proposition 7. Nonetheless, if Dr Willis’ views are correct (and I prefer his evidence on this point), they seem to have a direct bearing on the correctness of Professor Sutton ’s Proposition 7(b) (that one basis for rights and interests in particular country is having a borning place, or that of a parent or grandparent, ‘upstream’ on a Dreaming track which travels through the country.) Although Dr Willis was not asked directly about Proposition 7(b), his evidence suggests that he would not have supported it or the equivalent proposition stated in the Points of Claim (par B1.10(b)).

437 Dr Willis’s evidence supports the contention that the laws and customs of the eastern Western Desert recognise birthplace as a basis for asserting what he described as ‘ownership’ of land. But he does not appear to support the idea that long association with a region, in the absence of ‘genealogical relationships with land’, suffices to establish ‘ownership’, although he does suggest that ‘adjacency’ confers ‘a degree of ownership and authority, particularly when supported by long-term local residence and knowledge’. Consistently with this proposition, Dr Willis reports that Tjamiwa never asserted ‘ownership’ of Uluru:

‘as neither he nor his parents were born at Uluru, and his association with the region, although long, was established during his lifetime’.

462 Claimants in native title litigation suffer from the disadvantage that, in the absence of a written tradition, there are no indigenous documentary records that enable the Court to ascertain the laws and customs followed by Aboriginal  people at sovereignty. While Aboriginal  witnesses may be able to recount the content of laws and customs acknowledged and observed in the past, the collective memory of living people will not extend back for 170 or 180 years. In the ordinary course, claimants adduce anthropological evidence to establish the link between current laws and customs (or those observed in the recent past) and the laws and customs acknowledged and observed by the claimants’ predecessors at the time of sovereignty. So it is in the present case that the applicants rely to a considerable extent on the evidence of Professor Sutton  to establish the necessary link with the laws and customs of the Western Desert bloc at sovereignty.

463 There is, however, a serious difficulty in relying on this evidence to show that the pleaded laws and customs can be regarded as ‘traditional’. Professor Sutton ’s approach may well conform to what he describes as the ‘anthropological method’. But the Sutton  Report does not address the question of whether the principles Professor  Sutton  identifies (which, in any event, are not identical to those pleaded by the applicants) are ‘traditional’. On the contrary, the Propositions on which Professor Sutton  comments, specifically Proposition 7, do not purport to describe behaviour conforming to long-standing norms or rules. Rather they describe what Professor Sutton  characterises as ‘average or typical behaviour as well as ideal norms’. His analysis does not address the question, crucial to these proceedings, as to whether the ‘behaviour’ is in conformity with, or dictated by, the rules and norms that formed part of the traditional laws and customs of the Western Desert.

464 As I have noted, Yorta Yorta (HC) recognises that some adaptation of traditional laws and customs may be consistent with a conclusion that the adaptation derives from the normative system in force at the date of sovereignty. But, as Professor Sutton  accepted in cross examination, his Report does not consider whether the changes that have occurred can be regarded as adaptive in the required sense. Indeed, although the Report touches on the question of ‘continuity’ and although Professor Sutton  recognises that there have been changes from the ‘ossified view’ of the rules held by older people, the Report does not systematically explore the extent to which the principles identified in Proposition 7 incorporate changes to the traditional laws and customs acknowledged and observed at sovereignty.

17.5.2 The Scope of the Expert Evidence

465 These observations are not intended to suggest that the Sutton  Report ignores the research and opinions of anthropologists who have studied Western Desert people over the years. In fact, the Report frequently refers to such material and indeed has a section describing aspects of the work of a number of anthropologists and ethnographers. In addition, there are two particular sections of the Sutton  Report that, although not expressly considering whether the laws and customs identified by Professor  Sutton  can be described as traditional, nonetheless contain material that might be thought to bear on that question.

466 In the first of the two sections, Professor Sutton  seeks to support his opinion (Proposition 5.3) that the people of the Western Desert:

‘do not identify country as aggregates of discrete bounded areas or "estates". Nor do they identify "clans" or other discrete bounded territorial groupings of people’.

In the second he seeks to justify Proposition 10.1, which asserts that the people of the eastern Western Desert since sovereignty have been a body of persons united by their acknowledgement and observance of laws and customs, subject only to adaptive change.

467 Professor Sutton, in dealing with the question of clans or estates, rejects the view that the population of the Western Desert was divided into named land-holding descent-based groups. He accepts that much of anthropological literature, including works by Professor R M Berndt and Mr Tindale, contains references to local territorial groups. However, Professor Sutton  asserts that these works should not be accepted as correct, at least insofar as they suggest that traditional Western Desert society was characterised by land-holding descent-based groups. Professor Sutton  supports this claim by arguing that the anthropological literature, properly understood, suggests that birth in a particular area is a ‘privileged pathway’ for strong identification with and thus rights in the land and sites of that area.

468 Professor Sutton  recognises that Tindale, in particular, was a strong proponent of the view that Western Desert society was divided into small groups (clans) founded on patrilineal descent. The following passages from Tindale’s 1972 paper, The Pitjandjara, at 223–224, illustrate the point:

‘The basis of their clan organization is a ceremonial one and is linked with a patrilineal and patrilocal inheritance of the totem of a specific locality, and inheritance shared by all men who are directly descended from a common paternal ancestor. ...

The normal living unit or local group likely to be found exploiting the area around an important totemic locality is a different one than the clan and is to be known as a horde. It tends to be composed of male members of the clan minus the older girls and women who have been sent away as wives to other clans, but plus the girls and women who have been brought in as brides for local clansmen. To these persons may be added a few casual visitors and some odd persons who for one reason or another have become attached to the local group from other clans. Such persons through the passing of time may become a part of it. Thus the local group or horde constitutes the usual agglutinative group which traverses a hordal territory in the seasons favourable for such activities.’

469 To counter Tindale’s view, Professor Sutton  reanalysed the personal data cards compiled by Tindale in the course of the latter’s 1933 expedition to the Western Desert. The purpose of the re-examination of the cards was to investigate:

‘the question whether people’s territorial origins were anchored more firmly in the places where their parents or grandparents were born as against the places where they themselves were born’.

Professor Sutton  explains that he re-examined those personal data cards which contained entries for both parents of the subject concerned and which showed the parents’ places of birth and ‘Totems’. Of the 190 data cards, 97 (slightly more than half) recorded this information.

470 Professor Sutton  says that a common birth country and totem between parent and child could be found in only a minority of the sample of 97 cards. Sixty of the subjects appeared to have a principal totem that differed from the totems of both parents; six had the same totem as their fathers (but not their mothers); and seven had the same totem as both parents. Thus only 13 shared a totem with their father.

471 Professor Sutton  comments that:

‘[t]his is the sort of base data which naturally gives rise to the common statement that in the Western Desert there is a bias toward patrifiliation or patriliny. But it is not consonant with Tindale’s sweeping claim of a patrilineal system for totems and countries, combined, in this area’.

Professor Sutton  also makes the following observation:

‘In a system of predominantly patrilineal descent, or even merely one which showed a preference for patrifiliation, anthropologically one would expect as a rough rule of thumb at least half of the individuals would share a principal totem with their father and with those of the siblings who were fathered by the same man. One would also expect a large number of cases where three generations of consistent transmission of the same "totem" were visible, from father to offspring, and from male offspring to their offspring. Analysis of the Tindale data, which contain genealogical data on several hundred people, reveals only ... nine cases ... where there are totems or birthplaces common to three generations of kin’.

472 Professor Sutton  says that he also undertook an ‘elementary analysis’ of Professor Elkin’s 1930 fieldnotes and a similar analysis of the genealogies of T G H Strehlow on the basis of their ‘geographical relevance’ to the present case. Since only a small minority of the records containing the necessary information showed that the subject and the father shared a totem, Professor Sutton  concludes that:

‘[t]his region of the eastern Western Desert did not have a system of patrilineal totemic descent groups and Tindale was wrong on this point’.

473 Professor Sutton  further supports his rejection of the concept of landholding descent-based groups by criticism of the data or findings of some of the earlier anthropologists. He says, for example, that Professor R M Berndt’s data for asserting (in 1959) that local groups at Ooldea were united by common patrilineal descent have never been made available for checking. Professor Robert Layton’s finding (in 1983) that descent groups existed in the Ayres Rock region is said to be doubtful because his data show that a person’s own estate was the one in respect of which the person most frequently exercised his or her ‘inchoate rights’. Tindale’s reliance on the ‘horde’ is said to lack support in the literature and to have been based upon a misunderstanding of information supplied to him. Professor Sutton  recognises that Professor Nancy Munn ‘leant [in her studies] more towards an essentially patrilineal group model’, but says that she, in effect, modified the model by accepting recruitment through birthplace and loss of identification with father’s country ‘under appropriate conditions’.

474 Professor Sutton  finds comfort for his views in the work of Professor Annette Hamilton who in 1982, according to Professor  Sutton :

‘flatly denied a principle of patrilineal descent for land rights and stressed birthplace instead’.

In addition, Professor Sutton  says that Myers’ studies of the Pintupi people in the northern Western Desert support:

‘an array of bases on which people claimed country to be theirs, none of them involving membership of a well defined genealogical subgroup.’

17.5.3 The Reworking of Tindale’s Data

475 Cross-examination of Professor Sutton  revealed a number of difficulties with his reworking of Tindale’s 1933 personal data cards, at least for the purpose Professor  Sutton  had in mind. The difficulties include the following:

• Professor Sutton  interpreted the concept of ‘patrilineal descent’ in a manner different from Tindale. This led Professor Sutton  to exclude from his analysis cases that Tindale is likely to have regarded as supporting his (Tindale’s) thesis. • Tindale’s views, as outlined in his 1972 article, were not based solely, or even primarily, on the data collected in the course of the 1933 expedition. Tindale undertook at least seven further expeditions to the Western Desert between 1934 and 1965. His views were based on the totality of his research, not merely information gathered in 1933. • In any event, Tindale’s surviving 1933 field data do not constitute a complete record of the notes he compiled during the expeditions. Some of the raw information gathered by Tindale was therefore not available to Professor Sutton. That information may well have influenced the outcome of Professor Sutton ’s reanalysis of the data cards. • Professor Sutton ’s methodology led him to exclude cards that did not contain information identifying the country of both parents of the subject. The result was to exclude some cards containing information that supported Tindale’s thesis. • Despite making certain disparaging remarks about Tindale’s status as a scholar, Professor Sutton  acknowledged that other experienced anthropologists regarded Tindale’s work highly. Professor Sutton  himself conceded that Tindale was a ‘careful and meticulous scholar’, although adding the qualification ‘at his ethnographic level’. 476 In my opinion, Professor Sutton ’s analysis of Tindale’s 1933 personal data cards does not justify concluding that Tindale lacked data to support his claim that the Western Desert had a patrilineal system for determining rights and interests in country. This is not to say that Tindale’s views are unchallengeable, nor that his approach would necessarily survive rigorous anthropological re-evaluation. But, on the evidence in this case, Professor Sutton ’s reanalysis of the data cards is of little probative value in challenging Tindale’s hypothesis.

17.5.4 The Anthropological Evidence

477 Professor Sutton ’s rejection of the view that the eastern Western Desert was subdivided into land-holding descent-based groups is at odds not only with Tindale’s views, but with the opinions expressed by other anthropologists who worked closely with Western Desert people. As the Commonwealth submits, the earlier anthropologists, generally speaking, identified a system whereby local groups of people, recruited on a principle of patrilineal descent, had rights or interests in relatively bounded estates, which were largely defined by clusters of spiritually significant sites. Professor Sutton  criticises this body of literature by suggesting that the anthropological accounts, prior to the work of Myers in the 1970s and 1980s, were:

‘coloured by some bias towards the search for order and structure and tended, for example, to give too much emphasis to the ideological statements of older men in contrast with the attention given to the messier realities of the case material’.

478 This observation implies that there is a disparity between the claims of older Aboriginal  men, as recorded by the anthropologists, and the ‘messier realities of the case material’. As I have noted, Professor Sutton  expresses a preference for an approach which includes within the ‘normative’, behaviour that is average or typical, as well as behaviour that conforms to ideal norms. This approach is much less concerned with historical continuity, in particular with whether current rules or practices can be regarded as ‘traditional’, than with simply describing and recording contemporary practices and ‘case material’. It is perhaps therefore not surprising that Professor Sutton  sees the anthropological literature in a somewhat different light than might a person considering whether current land-holding practices can fairly be regarded as conforming to the traditional laws and customs of the Western Desert.

479 What might be characterised as the conventional view of the land-holding unit of Western Desert society is reflected in Professor R M Berndt’s paper, ‘The Concept of "the Tribe"’. This paper, which Professor Sutton  agreed is a ‘seminal paper on Western Desert society’, was based in part on research conducted by Berndt among Pitjantjatjara and Yankunytjatjara people of the eastern Western Desert. Berndt also reviewed the earlier anthropological literature, including the work of Tindale and Elkin.

494 Professor Sutton  describes the work of Professor Myers as ‘the deepest and most insightful of the various anthropological treatments of Western Desert land relations’. However, Myers’ work has been primarily among the Pintupi people of the northern Western Desert and is relatively recent, having been undertaken in the 1970s and 1980s. Professor Sutton, who acknowledges that Myers ‘considered Pintupi land tenure to be an elusive matter’, does not attempt in his Report to relate to Myers’ findings to the laws and customs of the Western Desert at the date of sovereignty or prior to the influence of European settlement.

495 Finally, reference should be made to the work of Professor Annette Hamilton. Like Myers, Hamilton carried out her field work with the Western Desert relatively recently, most pertinently with Yankunytjatjara people at Mimili (Everard Park) in the early 1970s and subsequently with Yankunytjatjara and Pitjantjatjara people in the Northern Territory for the purposes of the Lake Amadeus Land Claim.

496 Professor Sutton  argues that Hamilton ‘flatly denied a principle of patrilineal descent for land rights and stressed birthplace instead’. This rather overstates the position, since Hamilton recognised that patrilineal descent was involved in the acquisition of rights in country. However, she attributed primary force to birth at a particular place: A Hamilton, ‘Descended from Father, Belonging to Country’ in Politics and History in Band Societies (1982), at 101. In addition, as Professor Sutton  acknowledges, Hamilton denied the existence of any settled system of land tenure in the Western Desert, apparently even at sovereignty. This is not a view that has commanded widespread acceptance in the anthropological literature.

The evidence, although more equivocal on the point, tends to suggest that the traditional laws and customs of the Western Desert also recognised that in certain circumstances a person could become a member of the local group by being born at a place of significance to the group, at least where the person’s claim was acknowledged and accepted by other members of the group.

498 For the reasons I have given, I am not persuaded by the evidence of Professor Sutton  (or Ms Vaarzon-Morel), to the extent that it suggests otherwise. This does not imply that I think that further debate among anthropologists is foreclosed. On the contrary, there may well be room for further scholarly inquiry on the issues canvassed in the evidence in the present case. However, I am bound to decide factual questions on the evidence presented to me. That evidence does not dislodge or rebut the views consistently expressed by the early scholars who carried out field work among Aboriginal  people in the Western Desert, including the eastern Western Desert.

499 The findings I have made about the content of the traditional laws and customs of the Western Desert are inconsistent with the applicants’ case. The applicants repudiate an emphasis on patrilineal descent as a key element in the acquisition of rights and interests in land under traditional laws and customs. They also reject the concept of ‘discrete bounded areas or "estates"’ and assert that ‘unpredictability, negotiability and contestation’ are features of the laws acknowledged and customs observed by the people of the eastern Western Desert. Yet the anthropological literature (and the evidence of Dr Willis) recognises that ‘estates’ are an element of traditional laws and customs. The evidence does not support the applicants’ assertion that the laws and customs are unpredictable or subject to contestation in the manner suggested by them.

500 It is true that there is a modest overlap between the principles governing rights in land identified in the anthropological literature and the various ‘conditions’ and ‘additional factors’ advanced by the applicants as reflecting modern laws and customs. But the nature and scope of the conditions and additional factors go far beyond the circumscribed principles of traditional laws and customs articulated in the anthropological literature. This is particularly so in relation to the applicants’ wide-ranging proposition that ‘kin links’ can suffice to constitute a person ngurraritja for country.

501 The applicants do not suggest that the substantial differences between the two sets of criteria can be accommodated under the rubric of traditional laws and customs of the Western Desert. Specifically, the applicants do not contend that if the content of the traditional laws and customs was as I have described, those laws and customs contemplated the virtual abandonment of patrilineal descent and the acceptance of an ill-defined and far-reaching ‘kin links’ principle identifying ngurraritja for country. In any event, there is nothing in the evidence (once the views of Professor Sutton  and Ms Vaarzon-Morel bearing on this issue are put to one side) to suggest that the pleaded criteria can be classified as ‘adaptations’ of traditional laws and customs.

Bruceanthro (talk) 01:08, 3 January 2008 (UTC)