Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
the evidence takes the form of an individual's testimony simply as to his or her own activity, it will be a question whether it is appropriate to infer from the number of witnesses who give evidence of that kind that the Claim 'group', on a fair overall view, engages in that activity. Group 6A frequently submitted that where some only of the witnesses from a particular Claim group testified on a particular matter, I should draw an inference of the kind associated with Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308 (Kitto J), the inference suggested being that evidence from the other witnesses from that group would not have assisted with respect to that matter. Where it is clear, as it has been in this case, that evidence in respect of acknowledgement and observance of laws and customs is being adduced by reference to a list of topics, and only some of the witnesses from a Claim group testify in relation to a topic, it does seem appropriate to draw a Jones v Dunkel inference. However, I see this issue as part of the larger issue mentioned: how is acknowledgement and observance by a 'group' to be proved? I will not attempt to give a general answer to this question here, but note that little attempt was made by the various applicants to demonstrate why I should infer that the Claim group on a fair overall view (not every member) should be found to acknowledge a particular law, or to observe a particular custom. (iv) How many traditional laws and customs must still be acknowledged and observed? It is a 'body' of laws and customs to which Yorta Yorta HCA refers ([50]). Section 223(1) of the NTA predicates the continued acknowledgement and observance of a pre-sovereignty body of laws and customs. A consequence of the reduction of the Maduwongga claim group to the Strickland/Nudding group, is that the question of present day acknowledgment and observance relates to whether Ms Strickland and Ms Nudding and their biological descendants observe and acknowledge these 'laws and customs'. No biological descendant of either sister testified. Each has children who are mature adults. The two sisters and their biological descendants are a comparatively small Claim group. The task confronting the Maduwongga applicants was, and was know to them to be, to prove that the Maduwongga Claim group continues to acknowledge and observe traditional laws and customs. There is no suggestion that the Maduwongga applicants could not have called some of their biological descendants to testify. I infer that none of the biological descendants could have given evidence which would have significantly assisted in respect of the acknowledgment and observance by the Maduwongga Claim group of traditional laws and customs: Jones v Dunkel &amp; Anor [1959] HCA 8 ; (1959) 101 CLR 298 at 308 (and see 3.6(c)(5 ) [959] ff). (1) Tjukurrpa Asked whether she knew any story about Lake Raeside, Ms Strickland said that the only story she knew about it was the Tjukurrpa story about the ' warnmala, snake' that lives there and comes out every once in while when there is heavy rain and plenty of water, when he can be seen splashing around. She said that 'the warnmala , water snake' is also associated with Lake Rebecca. It is elementary that ' warnmala ' means something like 'featherfoot warrior', and that the word for water snake is ' warnampi '. I will treat this as two slips of the tongue by Ms Strickland. If it was not, it would tell heavily against her familiarity with Western Desert language. Ms Nudding said that when she was about eleven years old, her father told her a Tjukurrpa , which means 'big Dreamtime story', about the warnampi or big water snake, which lived at Lake Rebecca and Lake Raeside, and swam there when there was a big rain. The warnampi swam underground right out to the Nullarbor.