Federal Court Rules No Native Title Exists Over Specific Land Parcel

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME_1] [NAME_2] v [NAME_3] [NAME_4] of [NAME_5] [2020] FCA 1113 File number: NSD 328 of 2017

Judge: JAGOT J

Date of judgment: 5 August 2020

Catchwords: [NAME_6] – non-claimant application seeking determination that [NAME_6] does not exist in respect of certain land in [NAME_5] – application opposed by registered [NAME_6] claim group applicant – whether applicant able to prove on balance of probabilities that [NAME_6] does not exist in the land in question – where land in question is contained within larger [NAME_6] claim – application granted

Legislation: [NAME_2] Act 1983 (NSW) ss 36(9), 40(4), 42(1), 42G, 42G(2), 42G(3)(c) Evidence Act 1995 (Cth) ss 72, 91, 140, 140(2) Local Government Act 1919 (NSW) Local Government Act 1993 (NSW) [NAME_6] Act 1993 (Cth) ss 23B(7), 23C(2)(a), 23D, 23E, 24OA, 61(1), 66, 67(1), 223, 223(1), 223(1)(a), 225, 226, 251D, 253 [NAME_6] ([NAME_5]) Act 1994 (NSW) ss 20(2), 23B(7)

Cases cited: Akiba v Queensland [2010] FCA 643; (2010) 204 FCR 1 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Fejo v Northern Territory [1998] [NAME_7]; 195 CLR 96 [NAME_8] v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717 Mason v Tritton (1994) 34 NSWLR 572 Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320

Date of hearing: 16-17 March, 24 March-3 April and 15-16 April 2020

Registry: [NAME_5]: [NAME_4]

National Practice Area: [NAME_6]: Catchwords

Number of paragraphs: 433

[NAME_9]: [NAME_10]

Solicitor for the Applicant: [redacted]

[NAME_13]: E Lee

Solicitor for the First Respondent: [redacted]

Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth Respondents: [redacted]

Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth Respondents: [redacted]

BETWEEN: [NAME_1] [NAME_2] Applicant

AND: [NAME_3] [NAME_4] OF [NAME_5] First Respondent

[COMPANY_17] Second Respondent

[NAME_19] (and others named in the Schedule) Third Respondent

JUDGE: JAGOT J DATE OF ORDER: 5 AUGUST 2020

THE COURT DETERMINES THAT:

1. There is no [NAME_6] in relation to the land known as [ADDRESS], [NAME_22], being lot 923 in deposited plan 1094431. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

THE APPLICATION 1 These reasons for judgment concern an application by the applicant ([NAME_23]) under s 61(1) of the [NAME_6] Act 1993 (Cth) (the NTA) for a determination that there is no [NAME_6] in the land known as the [ADDRESS] land at [ADDRESS], [NAME_22], being lot 923 in deposited plan 1094431 (the [ADDRESS] land). [ADDRESS] land is owned in fee simple by [NAME_23]. [ADDRESS] land was transferred to [NAME_23] as claimable Crown land under the [NAME_2] Act 1983 (NSW) (the ALRA). By s 36(9) of the ALRA the transfer was subject to any [NAME_6] rights and interests existing in relation to the [ADDRESS] land. Section 42(1) of the ALRA provides that: An [NAME_2] must not deal with land vested in it subject to [NAME_6] rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of [NAME_6] (within the meaning of the [NAME_6] Act). [ADDRESS] land is also subject to a claimant application for a determination of [NAME_6] claimed by [NAME_24]. [NAME_24]'s claim covers some 1.68 million hectares of land over the south coast of [NAME_5] and was registered on 3 August 2017. [NAME_18], the representative body for [NAME_5] under the NTA, and the applicant for [NAME_24]'s claim were each joined as respondents to [NAME_23]'s non-claimant application in December 2017 and April 2019 respectively. [NAME_18] and [NAME_24] respondents opposed [NAME_23]'s application. The first respondent, the [NAME_3] [NAME_4] of [NAME_5] (the [NAME_3] [NAME_4]), neither consented to nor opposed [NAME_23]'s application and confined his involvement to legal submissions. 4 Section 223(1) of the NTA provides that: (1) The expression [NAME_6] or [NAME_6] rights and interests means the communal, group or individual rights and interests of [NAME_2] peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the [NAME_2] peoples or Torres Strait Islanders; and (b) the [NAME_2] peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 5 A determination of [NAME_6], by s 225 of the NTA, is a determination whether or not [NAME_6] exists in relation to a particular area and, if it does exist is a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the [NAME_6] are; and (b) the nature and extent of the [NAME_6] rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the [NAME_6] rights and interests confer possession, occupation, use and enjoyment of that land or waters on the [NAME_6] holders to the exclusion of all others. 6 Section 67(1) of the NTA provides as follows: If 2 or more proceedings before the Federal Court relate to [NAME_6] determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. 7 On 6 May 2019 Perry J made the following order to enable [NAME_23]'s non-claimant application to be heard and determined separately from [NAME_24]'s claimant application by consent: The parties are to liaise with the Registrar to confirm dates for the matter to be listed for a 4 day hearing. 8 On 16 April 2020, at the request of the [NAME_3] [NAME_4] and for the avoidance of doubt, I also made orders enabling [NAME_23]'s non-claimant application to be heard and determined separately from and in advance of [NAME_24]'s claimant application. 9 For the reasons given below I am satisfied that [NAME_23] has proved on the balance of probabilities that [NAME_6] does not exist in relation to the [ADDRESS] land.

APPROACH TO THE APPLICATION [ADDRESS] of the Federal Court recently considered non-claimant applications under the NTA in [NAME_8] v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717 ([NAME_8]). The following propositions are established in [NAME_8], including principles established by an earlier decision of the [ADDRESS] in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 ([NAME_27]): (1) The special functions vested in an [NAME_2] ([NAME_28]), such as [NAME_23], by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no [NAME_6] in relation to land, has discharged its onus of proof. As a non-claimant applicant, an [NAME_28] is in the same position as any other non-claimant applicant under the NTA: [12]. (2) The reason for a non-claimant application does not govern the Court's approach to the exercise of the power: [42]. (3) Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no [NAME_6] exists in the area the subject of the non-claimant application: [44]. (4) The overriding proposition is that each case must be assessed on its own particular facts: [47]. (5) Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous [NAME_6] claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48]. (6) [ADDRESS] must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [redacted] (7) All issues are to be assessed on the usual standard of proof in civil litigation – proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54]. (8) A non-claimant application does not involve any [NAME_4] inquiry into what [NAME_6] rights and interests may have existed at sovereignty or any [NAME_4] inquiry into how those rights or interests may or may not have continued: [55]. (9) The provisions of the NTA are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a [NAME_6] determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from [NAME_6] determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [redacted] (10) In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61]. (11) In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a "prima facie" position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63]. (12) The question whether [NAME_6] does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in [NAME_27] at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application, in this case, [NAME_23]. (13) In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on [NAME_6] rights and interests which are otherwise sought to be protected by the NTA: [66]. (14) No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any determination affects property rights as against the whole world no prescriptive approaches or glosses on the statute should be imposed. [ADDRESS] has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72]. (15) If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73]. (16) [ADDRESS]'s task is not to be more or less "stringent" depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82]. (17) The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of [NAME_6] in the land the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of [NAME_6]. A representative body is best placed to assist [NAME_29] to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: [97]. 11 The non-claimant application in the present case is to be decided consistently with these propositions. Most importantly, the case is to be decided on the whole of the evidence which has been adduced. The question is whether, having regard to all of the evidence, [NAME_23] has proved on the balance of probabilities that there is no [NAME_6] in the land. In so deciding ss 72 and 140 of the Evidence Act 1995 (Cth) (the Evidence Act) are also relevant. Those provisions are as follows: 72 The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an [NAME_2] or Torres Strait Islander group. 140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

THE ISABEL STREET LAND 12 I had the benefit of a view of the [ADDRESS] land and its surrounds. [ADDRESS] land is some 17 hectares located within the urban area of [NAME_22]. It is surrounded by industrial and residential development, with [NAME_22] abutting its eastern boundary. Before the [ADDRESS] land was transferred to [NAME_23] in 2006 it was Crown land. [ADDRESS] land is vacant and presents generally as a large island of bushland in an otherwise urban environment. [ADDRESS] land contains some sewage and drainage infrastructure in the form of manholes and underground pipes. There has been some clearing of the vegetation to accommodate unmade rough tracks around the perimeter of and through the [ADDRESS] land. [ADDRESS] land is steep in parts and contains gullies. I infer that during heavy rain water would run-off from the surrounding lands to the gully areas on the [ADDRESS] land. We observed an area of standing water on the [ADDRESS] land at a low point which appeared to be a ponding of run-off water. Long reeds or grasses were present on the periphery of this ponded area. There was some rubbish on the [ADDRESS] land such as an abandoned shopping trolley and other small areas of what appeared to be abandoned materials.

THE APPLICATION 13 The non-claimant application was filed in March 2017. The application was notified in accordance with s 66 of the NTA including a period of public notification from 3 May to 2 August 2017. No person sought to be joined in the notification period. [NAME_24]'s claimant application was filed three days after the notification period ended. Subsequently, as noted, [NAME_18] and then the members of the applicant for [NAME_24]'s claim were joined as respondents to the non-claimant application.

THE APPLICANT'S EVIDENCE

[NAME_2] witnesses 14 [NAME_23] called evidence from a number of [NAME_30].

[NAME_31] 15 [NAME_31] is the Chairperson of [NAME_23] and a board member of the [NAME_35] joint boards of management with the [NAME_37]. She is a member of an advisory committee providing an [NAME_2] perspective on the use and management of [ADDRESS] and represents [NAME_23] on the Eurobodalla Advisory Committee. She is registered as a traditional owner under the ALRA and is a member of [NAME_24]'s claim. She had lived in [NAME_22] for 38 years as at 2016 and continues to live there. 16 In her affidavit, [NAME_39] stated that she had asked a number of people she considered [NAME_2] elders in the community ([NAME_40], [NAME_42], [NAME_45], [NAME_48], [NAME_50], [NAME_53], and [NAME_56]) whether they were aware of [NAME_30] using the [ADDRESS] land for [NAME_2] cultural purposes and other activities. They all answered "No", with two ([NAME_41] and [NAME_59]) recalling the use of the [ADDRESS] land as a tip. 17 [NAME_39] said that to the best of her knowledge and belief the [ADDRESS] land had not been used as a camping place for the [NAME_2] community and was not regarded by [NAME_30] in the area as significant. On 13 September 2014, [NAME_23] resolved to sell the [ADDRESS] land having considered its cultural and heritage significance to [NAME_2] persons. Attendees at this meeting of [NAME_23] were [NAME_39], [NAME_45], [NAME_60], [NAME_62], [NAME_65], [NAME_67], [NAME_68], [NAME_70], [NAME_73], [NAME_76], [NAME_78], [NAME_80], [NAME_82] and [NAME_40] (Snr), all of whom I infer are [NAME_30] who are members of [NAME_24]'s claim who are familiar with the [NAME_22] area given their membership of [NAME_23]. On 22 September 2016, [NAME_23] resolved that: 1 within the knowledge of the members of [NAME_23], no traditional customs or laws are observed on the Land; and 2 the Land has no cultural or heritage significance to the members of [NAME_23]. 18 Members of [NAME_23] present for this resolution were [NAME_31], [NAME_45], [NAME_85], [NAME_86], [NAME_40] (Snr), [NAME_89], [NAME_78], [NAME_62], [NAME_65], [NAME_68] and [NAME_91]. 19 [NAME_39] attended a meeting of the [NAME_35] joint boards of management on 15 November 2016. She considered the following people at that meeting to be traditional owners who can speak of the history of the area (that is, [NAME_22]) – [NAME_93], [NAME_96], [NAME_99], [NAME_102], [NAME_105], [NAME_107], [NAME_110], [NAME_113] and [NAME_116]. [NAME_93], the Chairperson, asked the meeting if anyone had any knowledge of the [ADDRESS] land. Discussion took place and no one at the meeting stated awareness of any use of the [ADDRESS] land for cultural purposes by local [NAME_30] or stated awareness of any cultural or spiritual importance of the [ADDRESS] land. The minutes of the meeting of the [NAME_35] joint boards of management record: [NAME_119] has had a request from its lawyer re the property known as [ADDRESS] (but is actually in the [NAME_22] industrial area) to ascertain whether local [NAME_30] have any knowledge or memories of cultural activities taking place on the property. [NAME_32] has been researching this for a considerable time by talking to local Elders and is now putting this question to [NAME_2] owner members of the [NAME_36] and [NAME_34] [NAME_38] of Management. This research is in relation to identifying any [NAME_6] determinations that might impact of the development of the property, which is now a mandatory process for LALCs (it is very costly for LALCs to receive clearance from NSWALC. The Chairperson asked members at the meeting if they had any knowledge relating to the site, but they could only remember the property/area as the 'local tip" and could not recall any use for cultural purposes by local [NAME_30] and do not know of any cultural or spiritual importance of the land. Members agreed that the attendance list (as above) and this section of notes can be given to [NAME_119]. 20 [NAME_39] was 71 years old in 2018. She was born in Sydney and grew up in La Perouse. She heard stories from the old people about [NAME_120], Tilba, Batemans Bay and the coastal towns in the [NAME_22] region. All her old uncles and aunts passed on these stories. When she was four her family came to Bodalla to pick beans and had continued to come back to the [NAME_22] area ever since before moving there permanently with her family in 1979. According to [NAME_39] she knows this country very well having lived there for 40 years and been associated with all the elders and intimately connected with the land and waters of the area. She has walked over the [ADDRESS] land on a number of occasions after [NAME_23] applied for its transfer to it. She said that she never felt, as a [NAME_121], anything significant on the [ADDRESS] land. When she is on [NAME_121] significant land she instantly knows it but has never had this feeling on the [ADDRESS] land. 21 According to [NAME_39]: (1) she has never seen anything of significance on the [ADDRESS] land and is not aware of any ceremonies ever being conducted on the [ADDRESS] land or of any camping or hunting on the [ADDRESS] land; (2) there is nowhere to fish on the [ADDRESS] land; (3) the [ADDRESS] land slopes into a gully where water run-off collected; (4) the [ADDRESS] land is surrounded by development; (5) there is litter and junk scattered through the [ADDRESS] land; (6) she has not seen any evidence of traditional use, like middens, nor evidence of traditional foods or medicine plants; (7) she is not aware of any shells on the [ADDRESS] land which is inland and not on the coast; (8) although she does weave for ceremonial purposes, there are not enough reeds on the [ADDRESS] land to use for basket weaving and she has never used reeds from the [ADDRESS] land for that purpose; (9) cutting wood from the [ADDRESS] land is not a traditional practice; (10) there are not many native cherry trees on the [ADDRESS] land and the ones that are there are not healthy as the [ADDRESS] land is "sick". [NAME_39] said native cherry trees grow everywhere in [NAME_22] and are not special to the [ADDRESS] land; (11) there is no freshwater creek on the [ADDRESS] land. Water on the [ADDRESS] land is run-off from the properties above; (12) she is not aware of anyone coming to the [ADDRESS] land for fresh water; (13) there are no fish or animals to hunt on the [ADDRESS] land and she has never heard of anyone catching or hunting any food on the [ADDRESS] land; (14) there is no sign of people taking ochre from the [ADDRESS] land; (15) although Burrawang, a native plant, is everywhere the old people never made damper from Burrawang seed because it is toxic and they had lost the knowledge of its proper preparation; (16) she is not aware of any Garrara, which is used to make spears for fishing, on the [ADDRESS] land; (17) she has never gone onto the [ADDRESS] land for medicinal plants to make bush medicine. 22 According to [NAME_39], [NAME_122]'s daughter, [NAME_107], was at the [NAME_35] joint boards of management meeting on 15 November 2016 and did not raise anything about the use of the [ADDRESS] land at that meeting. [NAME_39] attended a meeting with the applicants for [NAME_24] on 9 March 2018 and nothing was said about [NAME_6] in relation to the [ADDRESS] land. The applicants said they did not oppose the non-claimant application but wanted a heritage study undertaken. 23 [NAME_39] said she was very involved in the customs of her people and promoting their culture and heritage and that their traditions were very important to her. She is part of a dance group which performs nationally including singing in the [NAME_125] language which is the language of the [NAME_126] (the name of [NAME_24]). She often does welcomes to country and smoking ceremonies and has been involved in a traditional fire burn with the assistance of the [NAME_128]. 24 In 1997 she was an applicant for the [NAME_129]. This claim was over a very large area of land including the [ADDRESS] land. [NAME_39] said at the time of lodging that claim she had no knowledge of the [ADDRESS] land. According to [NAME_39] all land is significant to [NAME_30] in some way but some places are more important than others. Some places lose connection, like the [ADDRESS] land. [ADDRESS] land has sewage infrastructure on it and run-off which degrades its significance and is in an industrial area with businesses and development around it. In her oral evidence she confirmed her family connections covered nearly all of the South Coast. She agreed a [NAME_130], a person with [NAME_127] ancestry, could exercise rights in [NAME_127] country under [NAME_127] traditional laws and customs. She said that [NAME_30] from [NAME_120] did not often come into [NAME_22] as it was a racist town so they went to Moruya and Bodalla instead. When they were doing seasonal work they would camp at different places including places close to [NAME_22]. She had never been to Little Lake which was east of the [ADDRESS] land on the golf course. To [NAME_39] a culturally significant site could be a mythological site where there are stories, or midden sites which are culturally significant to them, because it is known to contain fragments of bones of the old people, or burial sites. She said it was [NAME_30]'s instincts and knowledge so they know if an area is significant. She had lived in [NAME_22] for 47 years and from that time and her childhood visits she learnt a lot about the [NAME_22] area and important places around it. She said she would be considered an elder with knowledge of the [NAME_22] area by others outside her family. Other elders with such knowledge had passed away other than [NAME_50] who has been ill. 25 She agreed that in the [NAME_129], which covered [NAME_22], [NAME_6] rights and interests were claimed including traditional activities such as fishing, manufacturing tools and artefacts, gathering of native plants, gathering of native foods and fruits, gathering items for medicine, and creation of traditional artwork. The claim also included the right under traditional laws and customs to transmit cultural knowledge to descendants. [NAME_39] confirmed that she still had that right and observed it. She considered herself a custodian of [NAME_127] land and said she went camping as an exercise of her traditional rights which also included the right to gather in social gatherings and have meetings. However, she would not go to the [ADDRESS] land for any traditional purposes because the [ADDRESS] land is sick. She explained: …the trees are not growing properly. They're – the look – they don't look right to me. It maybe just my [NAME_2] intuition. That water actually stunk. There's a lot of weeds and stuff growing in there. I think it would be quite toxic. A lot of the rubbish that has been dumped over there, it sort of impacting on the land. 26 [NAME_39] said she had never heard of any ceremonies being conducted on the [ADDRESS] land and until the Court proceeding had never heard of anyone camping on the [ADDRESS] land. She said it was not a suitable place for camping and believed she would know if people had been camping there, but not if they had simply been gathering bush foods from the [ADDRESS] land. She did not think people would have collected grasses from the [ADDRESS] land for weaving because there is not much grass there and it takes a lot of grass to weave a basket. [NAME_39] said she had asked a lot of people about the [ADDRESS] land in her community but none of them knew it existed. [NAME_39] agreed that she had said to the [NAME_35] joint boards of management meeting on 15 November 2016 that the [ADDRESS] land was in the [NAME_22] industrial area when in fact it abutted that area. She thought she probably had a map of the [ADDRESS] land available but could not remember that far back to the meeting. 27 [NAME_39] agreed that as she had aged she had acquired a lot of knowledge including about the [NAME_22] area and that it was important for cultural knowledge to be passed on and she did so. She passed on her knowledge to members of her family, particularly the really important things she did not want everyone to know. It was possible other families knew things her family did not.

[NAME_131] 28 At the time of affirming his affidavit, [NAME_134] was 69 years old and described himself as a [NAME_135] elder of the [NAME_127] nation. He said he was classed by his peers as a keeper of culture and stories and a teacher of culture in relation to the traditional laws and customs of the [NAME_127] nation and the [NAME_125] language. He said his responsibility as a custodian was to look after his country and for education. He is directly responsible for looking after the land from north of Lake Conjola, down through to Durras Lake in the south and across to the Shoalhaven River in the west. 29 He said his family are renowned in the region and important knowledge holders. He was born in Batemans Bay and grew up along the South Coast including in a reserve at Ulladulla. He learnt traditional ways and the [NAME_125] language from his father who was a [NAME_127] man. His family were down the coast at Mogo, [NAME_22] and [NAME_136]. His family moved up and down the coast from Huskisson and Tomerong in the north to Broulee in the south. They picked peas with family including family from [NAME_22]. Several relations came from [NAME_22] and he has been to [NAME_22] many times in the last ten years. He does not have a [NAME_137] deal of personal knowledge about [NAME_22]. He said: [NAME_30] can't traditionally go into someone else's country without asking permission. When the [NAME_95] man came in and our systems on the South Coast were all broken up, our families were all moved, forced to move up north, forced to move down south, put on missions, given away and inter-married into other families and other countries. So [NAME_2] systems started to dissipate, but there's still people, especially older women, who have all that history and culture and knowledge that was passed and shared on. Some people kept it, some people forgot it, some people are still learning it. People who still have that cultural knowledge are very valuable to passing on [NAME_2] traditional law and custom. I believe that for us to get that benefit they have to give it back to [NAME_30] for the benefit of everybody. I am aware that [NAME_31] and the [NAME_138] generally including [NAME_79] and others, are still continuing on important cultural knowledge; particularly in [NAME_22]. They take responsibility for their part of my land. They are the ones that I see year after year out there sharing the knowledge with others, supporting the community, involved in dancing and singing songs. To my knowledge and belief, they have the right of say in relation to the [[ADDRESS]] Land. 30 [NAME_134] is a member of the [COMPANY_139]. He left the first claim group meeting in 2016 as he believed the selection of representatives was not proper. He said: On the correct cultural protocol, all you families need to go back and speak with your elders and families about who should be representative. 31 [NAME_134] did not believe in [NAME_6] or [NAME_95] man's laws. He said all land is significant to Aboriginals in some way. He does not believe that the applicants for [NAME_24]'s claim have sufficient traditional knowledge to speak for country. He said: They are too [NAME_140] or not experienced enough and the appointment of the listed applicants did not follow traditional cultural protocol of contacting the elders of each family. 32 In his view [NAME_141], [NAME_31] and others could speak for the [ADDRESS] land. He described [NAME_31] and her daughter [NAME_79] as indispensable knowledge holders of traditional laws and customs. He said: One way to know who the most authentic elders in [NAME_22] are is by observing the people teaching and practicing culture. The best example I know of that is [NAME_32] and [NAME_78]. They have the knowledge and are sharing it. If the others have it, I am not aware of them sharing it, teaching, participating. Not anything like [NAME_32] and [NAME_78]. They're the real people that are doing things in and around [NAME_22]. 33 [NAME_134] had never heard of the [ADDRESS] land until it came up as an issue for [NAME_24]'s [NAME_6] claim. He said: I have no knowledge and have never heard of any camping, hunting, ceremonies, birthing, or gathering resources taking place on that Land. I have never heard of anything like any of these activities taking place on the Land next to the golf course by [NAME_30] at all. 34 In oral evidence [NAME_134] said that as a member of the [NAME_127] nation he would have rights and interests outside of the [NAME_135] clan area. He explained: …we all come under the same law and ruling within our country, but different family groups of the – that's the 13 different connected clan groups have a higher responsibility of their part of the country to make sure that the rules and the laws are adhered to, and the other people are watching over you to make sure that you don't bugger it up. 35 He continued: Well, today it's pretty hard to live traditional lifestyle, but I still live on my cultural practices and my respect for country, and for people. 36 Nevertheless, there were rules he grew up with: We lived – lived our culture. We lived and learnt the two-way system from my mum, who was Scottish, and my father, who's [NAME_2]. Because we have to fit in into today's society, so we learned both ways. 37 He gave evidence in this exchange: So if I was to say the rules and customs that came down through your father, who was an [NAME_2] man, would you consider the rules and customs that he taught you to be traditional rules and customs? Absolutely. I mean, my dad was born in 1896, and they had all been jammed onto the missions and reserves, so they still grew up and lived a – a semi-traditional lifestyle. Right. And so would he – all those rules and customs that he passed on to you, he would have learnt them, would you agree – he would have learnt them from his parents and grandparents as well? Well, he grew up with them. He grew up that way and learned – only the clever way, learned on how to exist in today's society as well. And that's what we've continued on. And was your father a [NAME_135] elder as well? He certainly was. He was born here at Ulladulla. And he was born in Ulladulla. And did he – was he a [NAME_135] elder because he was born in Ulladulla? You would have to ask him. He was a [NAME_135] elder because he was told or he grew up as a [NAME_135] elder from his parents, which are my [NAME_142] and grandfather. 38 He explained that to be [NAME_135] a person had to be a descendant of a [NAME_135] person. He continued: And when you say you're a keeper of culture and stories, you would – you mean that you're someone who has a deep knowledge of [NAME_127] nation culture and stories. Is that correct? Definitely. And you have that knowledge because they were passed to you by your elders? I have that because we ..... whole family Right. So from your parents? From my parents, from my aunties, from my cousins, my uncles. And can you tell me some of the names of your aunties and uncles that you learnt these things from? Well, [NAME_144], my dad's sister, younger sister. [NAME_148], my dad's brother. [NAME_149], who's another one of my dad's sisters. [NAME_150], [NAME_151]. These are the women – [NAME_153], who is [NAME_155]. They all used to sit together on the beaches where we had our camps doing all the shell work, and we just listened to the stories. Those people were all taken from here and put on the mission in La Perouse. 39 He also gave this evidence: I have the right to speak for any part of my country, except that I have a considerable amount of – a lot more knowledge on this part of the country because it's my place to look after it. So all our sites – our massacre sites and art galleries and burial grounds; I know where they all are. I could take you to all of them, whereas some of the other people in the south probably couldn't. They respect that when they come here, they get us to take them to these sites and same in turn I get the people from the south – the elders – to take us to sites down there, even though we have every right to go there. Right. And when you say – when you talk about having the right to go there, you mean you have the right to do things that you've done traditionally, such as hunt and fish; is that right? And tell stories and do dances and whatever it is connected to the country are the same rights but I concentrate on – this my responsibility, on behalf of all the rest to share those stories or those dances or those sites with everybody else. It's like sharing the whole workload. Right. And so for example, you could – for example – go down to [NAME_22] and fish along the coastline there and you would say that that was your right to do so as a [NAME_130]? 100 per cent. Absolutely, yes. 40 [NAME_134] considered that any [NAME_130] could speak for [NAME_22] if they have knowledge of it because it was part of [NAME_127] country and "[w]e all come under the same law'. He gave this evidence: So you agree that there's a number of people or a number of families that have particular knowledge of the [NAME_22] area? To my knowledge today, the people who are still practicing cultural protocols and cultural practices and sharing it with other people. Yes. And you agree that there's a number of people or families who are still practicing that cultural protocol? There are some, definitely. Yes. And who are they? Well, the main ones that come to mind are the ones that I come across that we are asked to come and help when we assist with dance or songs or ceremony, are the ones who are still doing the same thing from country and that's [NAME_31], her daughter, are two people who still perform and participate with us in other parts of country on sharing that cultural knowledge. And there are others as well, like [NAME_105], who's still an artist and has a lot of significant knowledge. [NAME_157]. They're people who are still practicing those cultural values and sharing it with others. 41 [NAME_134] accepted that there might be other people he did not know of who could also speak for [NAME_22] but that he would know the people who were "continually practicing cultural protocols and practices". For his part, he said: Most things that I do I consider traditional. Like, my ceremonies, my language, my stories, my song and visiting and showing respect for my sites, and my ceremonies that I do, but that – that's me. 42 [NAME_134] was an applicant for another [NAME_6] claim, the [NAME_159] claim, which included [NAME_22]. In that claim [NAME_6] was asserted over all of the Crown land within the claim area. He agreed that he asserted [NAME_6] rights over all of [NAME_127] country being the right to use that country. This evidence continued: …if you went to a beach nearby to [NAME_22] you would assert the right to fish off that beach, wouldn't you? Certainly do, and I do that today. Yes. And say you went to the bush scrub and you wanted to collect bush tucker, you would agree that you would assert that right in [NAME_127] country as well, wouldn't you? If I wanted to, if I knew that part of the country, it's part of my country. Yes. And, for example, you would agree that if you wanted to, say, collect wood, that would be something you could do as a [NAME_130] in [NAME_127] country? It's all within country. Everything in country, I have the same rights as other [NAME_127] or [NAME_125]-speaking people. Right. So, for example, you agree that you have the right to take resources? From where? From [NAME_127] country? Well, they're my resources, aren't they? Yes. You would assert that they were your resources as a [NAME_130], wouldn't you? They are, yes. So, for example, if someone, say, wanted to go and pick the Burrawang plant, you would assert that they could do that if they were a [NAME_130], wouldn't you? Of course they can. And they could do that on [NAME_127] country? Yes. Yes. If it's [NAME_6]. Today, it's a different story. And, say, the native cherry bush: they could do that, too, couldn't they? Pick fruits off exocarpos? Of course they could. That's food. That's part of our food in our country. Right. And say, for example, if they wanted to take the sap off particular trees to use that, they could do that too, couldn't they? But anybody within country, if they're [NAME_130], only has to ask if you want to take food or something in someone else's country. Right. So – yes, and you would agree that those things can be done in and around [NAME_22], because [NAME_22] is in the [NAME_127] nation area, isn't it? Of course it is. And I still do. 43 He did not agree that these rights extended to the [ADDRESS] land because that land was owned by the [NAME_23]. 44 [NAME_134] considered [NAME_31] to have the most knowledge of traditional cultural protocols so as to be able to speak for the [NAME_22] region.

[NAME_160] 45 [NAME_162] is a [NAME_127] man, who was 66 years of age in the year of affirming his affidavit, who has lived in [NAME_163] since 1999. Before that he lived at [NAME_120]. His sister-in-law is [NAME_122]. He is a member of the [COMPANY_139]. He does not consider the applicants for [NAME_24]'s claim to be representative of the clans of the South Coast. He said that if [NAME_122] is doing anything on land in [NAME_22] "it's got nothing to do with a traditional connection. It's just her doing it". He said you "can get bush tucker and bush medicine everywhere here". 46 [NAME_162] also responded to the affidavit of [NAME_164]. He said [NAME_166]'s affidavit was not true. [NAME_166] was from Batemans Bay not [NAME_22] and does not speak for the [ADDRESS] land. [NAME_162] knew all the old fellas referred to by [NAME_166]. They were all his friends and most of them drank together. He worked with nearly all of them and knew them all for most of his life until they passed away at different times. [NAME_162] said that all his uncles, who are much broader than [NAME_166] mentioned, never said or did anything in the area of the [ADDRESS] land or Little Lake as [NAME_166] suggested. None of his uncles had ever told him anything about hunting, fishing or camping in the area of the [ADDRESS] land or Little Lake. He knew [NAME_167] who use to come to [NAME_120] all the time to fish. He had never heard of [NAME_168] taking bark from the trees at [ADDRESS]. He had never heard of [NAME_30] camping on the [ADDRESS] land or heard of the land at all in relation to fishing. [NAME_30] camped at [NAME_120] and other renowned places like Mystery Bay and Aragannu. 47 [NAME_162] said this case was about jealousy. According to him: (1) every true [NAME_2] knowledge holder in the region knows the [ADDRESS] land is not significant. None of the old people ever talked about the [ADDRESS] land and if it was significant the old people would have said so and protected it, but they never did; (2) there is no fresh water on the [ADDRESS] land; (3) the [ADDRESS] land is not known as a place for collecting bush tucker. There is bush tucker everywhere on the coast and he had never heard of the [ADDRESS] land as known or used for that; (4) knowledge holders know that the [ADDRESS] land is not significant to [NAME_30] in the way [NAME_30] talk about significant land. [ADDRESS] land is not like Mystery Bay, [NAME_170], [NAME_36], [NAME_34] or Mumbullah Mountains. There are many other places which [NAME_30] look after and visit and take their kids too. 48 [NAME_162] blamed [NAME_122] for this case and [NAME_171] whom [NAME_162] had known for 50 years and who had never mentioned the [ADDRESS] land. 49 In oral evidence [NAME_162] confirmed that to be a [NAME_130] you had to be a descendant of a [NAME_130]. His ancestors were [NAME_126] from the Moruya/Nelligen area. [NAME_126] could speak for their country if their community accepted them as being able to speak. As I understood his evidence this meant that the [NAME_2] would have to accept the person as being able to speak for country. He said his father and [NAME_147] hunted a lot of kangaroos anywhere on the South Coast and they were an important food source for a lot of [NAME_126]. He said [NAME_122] could talk about [NAME_120] and [NAME_163] as she was a member of the land council and her family is from there. He agreed that he had [NAME_6] over the area of [NAME_24]'s claim which includes [NAME_22]. With his Mum he had camped all up and down the coast. He did not know he was [NAME_127] until he was about 18 or 19. Once he knew he was taught about [NAME_127] country and that their camping places were in [NAME_127] country. He gave this evidence: So you were taught that you had a right to do that because you were a [NAME_130]. That's right, isn't it? Yes. So you would say that as a [NAME_130], you could do things such as hunting, as well. You would agree with that, wouldn't you? Yes, in a certain way Yes, and you could do that as a traditional right under your traditional laws as a [NAME_130]. You would agree with that, wouldn't you? Yes, there were certain rights. And those things such as hunting and camping, those things and the way that you do those things. That has been passed down to you by your elders, hasn't it? That's right. … So for example, if someone wanted to take wild cherries from trees in [NAME_127] country, they could do that, couldn't they? If they weren't Council, they should. Right, and that's something that they've done – that [NAME_126] have done for a long time, haven't they? Yes So for example, if someone said that they wanted to pick the Burrawang plant. Have you ever heard of the Burrawang plant? Yes. If someone said that they wanted to pick the Burrawang plant, that's something they could do as a [NAME_130], in [NAME_127] country. That's right, isn't it? That's right. … …if, for example, [NAME_123] learned to pick Burrawang plants from an elder, then her picking of that plant would have a traditional connection, wouldn't it? Look, I can't see why anyone can't pick a Burrawang plant, it's reasonably doable. No one – I think anyone could pick the Burrawang plant. All right. So what about, for example, picking reeds. Do you know people who pick reeds in order to do weaving? Yes, ..... and ..... used to do it. Right, and they would go and pick those reeds, wouldn't they, to do that? Yes, they would pick their reeds down in that area, as well as ..... I know that. And you would agree that that's something that they've learned from their elders to do? Yes. And you agree that they could do that because of their connection to that country? If they're [NAME_126] and they're picking it but not from the Land Council, I don't see a problem with it. Right. So – but you would agree that that's something that they've learned, like the picking of those resources is something that they've learned from their elders? Well, we did. Right. So – okay. So if someone, for example, went to the land at [ADDRESS] and picked something like a reed in order to make a basket or some other artefact, you would agree that there was a traditional connection in them doing that, wouldn't you? I don't see a problem with it as long as they ..... Right? ..... You would also agree though that they have a right to do that as a [NAME_130], wouldn't you? Yes. If they had ..... let the land council know what they're doing Right. And you say they have to let the land council know what they're doing because the land council owns the land; is that right? That's right. 50 He said if land was not owned by a Land Council then "we can't do nothing", except you could go to the beach and take things which he considered to be different altogether. [NAME_126] had a right to go to the beaches and take things from them. 51 He said he had not read [NAME_166]'s affidavit but had been told what was in his affidavit and he did not agree with it. To his knowledge what [NAME_166] was saying was not true. A lot of people around [NAME_120] and [NAME_22] had been talking about [NAME_166]'s affidavit. [NAME_162] did not remember [NAME_166] being around [NAME_120] and he was not from that area. The [NAME_173] were from the Ulladulla area. No [NAME_173] lived on [NAME_120] but they might have visited. [NAME_166] was not associated with [NAME_174] or [NAME_176] when he was a child but he might have known them later. But [NAME_162] knew they had never camped down in the area of the [ADDRESS] land. He had last been on the [ADDRESS] land about 20 years ago.

[NAME_178] 52 [NAME_180] described herself as an elder of the [NAME_2] community of the South Coast area. [NAME_180] is a member of the [COMPANY_139]. In May 2018, the date of her affidavit, she was 79 years old. She was born and raised in [NAME_136]. Her father was born at [NAME_120]. When she married she went to La Perouse. She later came down to the South Coast area for a few years, eventually moving to [NAME_120] for about 30 to 40 years. Her father told her lots of stories about his childhood and about fishing around [NAME_120]. She said she knew the [ADDRESS] land which used to have a tip over the back of it. There is a creek that goes down to the beach and comes out at the golf club. She said her memory was not perfect these days but she knew of sacred sites in the [NAME_22] area. In truth, she said, all land is sacred in some way to Aboriginals but she did not remember the [ADDRESS] land being an area where ceremonies or other cultural activities had taken place. She said if a place was really sacred you would know. She had never heard of the [ADDRESS] land being sacred. She said that "we know where we can camp and not and where we can fish or hunt and not". She did not know anyone doing those things on the [ADDRESS] land. She had not heard anyone say that the [ADDRESS] land has cultural significance.

[NAME_45] 53 [NAME_181] was 53 years old in May 2018 and the Deputy Chairperson of the [NAME_23]. [NAME_181] is a member of the [COMPANY_139] being a [NAME_130] descended from [NAME_127] persons. 54 [NAME_31], his sister, had asked him whether he was ever told about cultural happenings on parts of the [ADDRESS] land and he replied he did not know and had not seen or been told of any significance of that area. He was not aware of the [ADDRESS] land having any cultural or heritage significance. He said that since he was [NAME_140] he had been taught by elders about places of importance and sites of significance in [NAME_22]. He was taught about burial sites, midden sites, sacred trees, scarred trees, tool sites, mapping sites, hunting, fishing, camping and everything cultural. He said he knew of places in [NAME_22] and all along the South Coast. None are on the [ADDRESS] land. He had spoken to a number of elders about the [ADDRESS] land over the last three years and no one knows of anything significant on it. He had spoken to [NAME_182] (now deceased), [NAME_99], [NAME_141], [NAME_40], and [NAME_185] who are the most senior people he knows. He had never been told not to go on the [ADDRESS] land, had never heard of anyone performing ceremony there, and had never seen any remnants of anything in there. In oral evidence [NAME_181] said he had stepped down from his position as Deputy Chairperson of [NAME_23] as he had moved to Tasmania but was still a member of the board. Before moving to Tasmania he had lived in [NAME_22] and had done so for most of his life. His family were from that area. They went bean picking at Bodalla and his whole family would spend a lot of time in the area. Both his parents were [NAME_126]. He gave this evidence about his parents and others: And so did they start teaching you when you were younger about where your country was?---Yes. At an early age I was shown – not just by my mother and father, by my uncles and my aunties – a lot of significant places along the South Coast which the [NAME_127] stems from Broken Bay all the way down to Mallacoota. So it's one big nation. That's why we call it [NAME_127]. So I'm quite familiar with all the coastal areas from the mountains to the sea. 55 He agreed he asserted rights as a [NAME_130] in [NAME_127] country including the right to practice cultural rights, cultural heritage, fishing, hunting, gathering, storytelling, everything that his law allowed him to do, which excluded birthing rites. He said some things were able to be discussed only by women and others were specific to men such as initiation. There were also rules about hunting and fishing. He said: Yes, there is certain – certain areas which – it prevents me to go in there by myself unless I'm going in there with an elder who would have the right of passage going. A lot of my elders have passed away now so a lot of that information has gone, but in certain areas where if it was – especially women's area, that was one area I cannot go. I've known 35 – 30-odd years of doing this for the Land Council, been a part of the Land Council for 37 years. I know nearly every – every aspect of the Southeast Coast. And there's certain areas which I can go and like I said, there's areas where I can't go, and I know there's one place where I can't go on the [NAME_34] which is a birthing spot. Now, a lot of our birthing areas is – is not allowed by a man. 56 Other than those areas he could not go he asserted the right as a [NAME_130] to do such things as hunting and gathering on [NAME_127] land. He said that the rights of landholders had to be respected, however, and a lot of traditional hunting and gathering places had died out for this reason. He would look for spots where he had the right as, a cultural person – a right as an Indigenous Australian, you know, to go sit where my ancestors sat and fish and ate and provided. 57 He was shown these places by his elders when he was a child. He was taught where he could and could not go. This was knowledge which had been passed down from generation to generation. He said there would not be burial sites on the [ADDRESS] land as traditional burial sites were always in sand. There were no records of scarred or sacred trees on the [ADDRESS] land and you would not want to camp on it. [ADDRESS] land was an area you would not want to go as an Indigenous person as you would not go camping where you could be attacked. He thought there had been five or six surveys of the [ADDRESS] land including by the applicants for [NAME_24]'s claim who had said they were going to do a survey. If there was anything significant on the [ADDRESS] land he believed he would know about it. He had been told about a reed being on the [ADDRESS] land that could be used for weaving but had never seen it. He said people still used reeds for weaving, a skill that had been passed down under traditional laws and customs of the [NAME_127], but not reeds from the [ADDRESS] land. He agreed that [NAME_126] could pick reeds for weaving on [NAME_127] country provided it was not private land. 58 [NAME_181] gave this evidence: Well, to the best of my knowledge, the people who had been a part of my growing up, they're teaching my culture, one has passed away and the other moved to [NAME_184], and he was one of my senior, senior advisors on all things cultural within the [NAME_127] – [NAME_127] land, [NAME_127] nation, and then [NAME_188], [NAME_190] [sic [NAME_187]], you know. These people had always told me that there was – there's nothing significant in that area when this was brought up. And we – we ..... just going to turn around and say, "Let's go to do this." We have to go into depth and ask our elders about things. A lot of them now are passed away, so we can't ask them about, you know, to come here to court. 59 [NAME_181] agreed he had asked [NAME_185] about the land and that [NAME_193] was not a [NAME_130] but a [NAME_194] man. He agreed that [NAME_193] did not speak for [NAME_127] country but said he had done more surveys of [NAME_127] country than anyone. He also said [NAME_193] had grown up on this country and his father was from this country. 60 He gave this evidence: And you would agree that throughout the [NAME_127], different people hold different levels of knowledge? Maybe. Well, not everyone knows the same thing about [NAME_127] traditional law and custom, for example. That's right, isn't it? That's right. And as you keep growing older you can learn more things. That's right, isn't it? Well, it depends on who's teaching you. Right. So you might have an older person who is teaching you who is very knowledgeable?---Yes. And it's important that you are taught by older people who are very knowledgeable. That's right, isn't it?---Yes, that's right. That's right. Yes. And would – so for example you would accept that [NAME_164] was an elder. You would accept that, wouldn't you? No. He's only a year older than me. Well, he's in his 60s, isn't he? He's what, five years older than me. So if I was to say 67, how many years older than you is that? Five – 17 years. So he would have a fair bit more knowledge than you. You would agree with that, wouldn't you? Not really. But you would accept that ? ..... can I answer that? Yes? Has he lived on [NAME_127] land for the last 67 years? Has he worked for [NAME_126] in the last 67 years? Has he done anything cultural with the [NAME_126] in the last 67 years? Are you saying that he hasn't? No. But you would agree, wouldn't you, that for someone of his age it's important to respect his knowledge and his understanding? No, because he's not my elder. [NAME_165] isn't [NAME_127]. They're [NAME_194] as well.

[NAME_195] 61 [NAME_198] was 62 years old when she made her affidavit in September 2019. She is a [NAME_130] who has been doing cultural tours through her own company for 40 years and is an [NAME_2] consultant and language teacher. She was the Chairperson of the [NAME_2] and held other positions providing cultural information and support. For 11 years she was the joint management co-ordinator employed by the [NAME_37] to co-ordinate the [NAME_199]. She is a speaker of the traditional [NAME_125] language. She learnt [NAME_125] words when she was growing up and with her brother and sister had worked to revive the language. She has been teaching the language since 2004. In 2019 she was nominated as the [NAME_2] elder of the year for Eurobodalla Shire Council for her contributions to the community. She is a member of the [COMPANY_139]. 62 She belongs to the [NAME_126] of Moruya, being one of the 13 major tribal groups making up the [NAME_126] of the South Coast. [NAME_126] traditionally spoke four languages of which [NAME_125] is one. The others are Dharawal, Djiringanj and Dhawa. The [NAME_126] have custody of the land from Moruya River to the [NAME_1], out to the second row of the [NAME_137] and east to the ocean. [NAME_198] said she had detailed cultural knowledge about [NAME_35] including knowledge of stories. Her knowledge of traditional law and custom was primarily taught to her by her [NAME_142] and other knowledgeable old people including relatives and friends. The old people patiently shared their knowledge by explaining social structures and lore, retelling stories, and showing techniques in the creation of numerous tools, weapons and utensils. Those who had a connection with [NAME_22] would include [NAME_201], [NAME_203], and [NAME_205]. 63 Local research in the Historical Society shows that all local [NAME_30] were herded on to the [NAME_208] reserve near Moruya in the 1890s. It is well documented that when the farmers wanted that land they then moved all the [NAME_30] to [NAME_120] which was gazetted in 1891 for the use and protection of [NAME_30]. In or around 1897 all [NAME_30] within a 100 mile radius from [NAME_22], Braidwood, Araluen, up to Ulladulla and as far down as Bega were herded onto the [NAME_120]. After this, [NAME_30] had little if any access to traditional country from which they were taken including [NAME_22] and needed permission to leave and return to the reserves including [NAME_120]. The forcible displacement of people had a devastating effect on [NAME_30] as they could not carry out the functions inherited by being born [NAME_2] such as initiations and ceremonies. The tribes were also all mixed together totally different from how it was before European contact. Further, it was against the law to practice traditional [NAME_2] activities such as ceremonies and hunting. 64 [NAME_198] believes that after this, certain lands turned into dead zones and to this day the energy is not there. When she walks out in the bush in certain areas she feels really welcome and other times she feels like she should not be there. She believes there cannot be that connection of energy with land on which [NAME_30] have not been able to live. She is not suggesting all land between Ulladulla and Bega lost its significance as every centimetre of Australia is important to some extent to [NAME_30]. However, land can lose importance/connection when it is denigrated, eroded, destroyed, or urbanised and it does not look and feel the same and has a different energy, darker and void of good energy. If land is very close to industrial businesses or houses that can be inconsistent with a place maintaining its significance or importance. 65 [NAME_198] is not aware of any efforts to maintain the [ADDRESS] land. She is familiar with it as she worked from the [NAME_38] depot about 100 to 200 metres from the [ADDRESS] land between 2000 and 2010. Throughout all that time she never had any feeling that the [ADDRESS] land was of significance to [NAME_30]. The area is too industrialised. 66 [NAME_198] said [NAME_30] tend not to want to do traditional/ceremonial activities in the view of [NAME_95] people. The presence of industrial business and houses around the [ADDRESS] land tends against it having significance to [NAME_30]. She has never walked on the [ADDRESS] land as it did not look inviting to her as a [NAME_121] person and she was not attracted to go on the [ADDRESS] land and had no need to do so. 67 To [NAME_198]'s knowledge the [ADDRESS] land had historically and still today had been used for the illegal dumping of rubbish. This would have damaged the quality of resources/food on the [ADDRESS] land. She had never heard of any camping on the [ADDRESS] land. To camp a person needs shelter from the wind, food and fresh water. To her knowledge none of that applies to the [ADDRESS] land although she believed there were some stagnant water pools on the land which is not good for camping. She has had conversations over the years with many elders who can speak for the land including [NAME_209], [NAME_212], [NAME_31], [NAME_205], [NAME_214], [NAME_215] and [NAME_217], all of whom had now died except [NAME_31] and [NAME_217]. In all those discussions she had never heard of any significance of the [ADDRESS] land or any use of it for traditional activities. There are no recorded sites on the [ADDRESS] land and no oral accounts of any significant cultural events occurring in that area. She had heard the [ADDRESS] land had erosion and kids on trail bikes had been riding on it. She expected that she would know if the [ADDRESS] land had any significant sites on it. She is known up and down the coast for significant sites and things of cultural significance and no one ever approached her about anything to do with the [ADDRESS] land. 68 [NAME_198] believes [NAME_23] is a good representation of the local community and its board members possess cultural knowledge which gives it authority in [NAME_121] traditions. [NAME_198] believes [NAME_31] and others (I infer involved with [NAME_23]) have the right to speak for country because they belong to the country and know the history and culture and contribute to the local community. 69 [NAME_198] said she had never heard of any traditional activities taking place on the [ADDRESS] land and believed it was a gully which gets all the run off from the development around it. To her knowledge the [ADDRESS] land has no cultural significance to local [NAME_30]. 70 In oral evidence [NAME_198] said she did not believe any of [NAME_166]'s affidavit which she had read. She explained: I guess in the first instance I know the [[ADDRESS]] land that he's talking about has no cultural significance to [NAME_30]. I've been – I've had a lot of conversations with people about that particular land over the years, and from my knowledge there is nothing of cultural significance there. I don't believe that – I find it hard to believe that all of the people who he claims to have gone there with have passed and you can say anything when there's nobody to verify what you're saying. 71 She said she knew of the people mentioned in [NAME_166]'s affidavit, [NAME_222], [NAME_224], [NAME_175], [NAME_225] and [NAME_226] and [NAME_227], and had never heard of them walking from [NAME_120] to [NAME_22] to access hunting and fishing spots. She said that, contrary to [NAME_166]'s affidavit, Little Lake has always been too brackish to spearfish. She said she had never heard of any of the activities being asserted by [NAME_166] before his affidavit. She did not believe [NAME_166] had camped on the [ADDRESS] land with his family and elders. She said: The [[ADDRESS]] land doesn't really accommodate good camping ground. It is a gully that is – gets the run-off from all surrounding land and – anybody who collects any kind of traditional foods and resources wouldn't collect it from there because it would be polluted. And camping in that area, I – I don't understand why anyone would camp in that area. It's not as good as lots of other places that are close by. … …it's not a good place to camp. The fresh water is brackish; it gets all the run-off from surrounds. To my knowledge, that place has been used as a dump. Usually people go in there and clean out the old Woolworths trollies that have been dumped down there by kids. BMX bikes go through there; it's mountainous. There's cliffs. It's not flat land. 72 She said most [NAME_30] camped at Corunna, which is just a little bit south and down on the flats on the other side of the [NAME_1] and that there were lots of places to camp other than the [ADDRESS] land. She did not believe the [ADDRESS] land was a traditional camping area and said she had worked in her culture for enough years to know that none of [NAME_166]'s assertions about the [ADDRESS] land were true. The foods to which he referred can be collected anywhere along the coast and she knew of no one who collected bush tucker from the [ADDRESS] land. She said thousands of other [NAME_30] could speak for the land as knowledge was not exclusive to one person or one family. There are lots of knowledgeable [NAME_30] most of whom assure that the [ADDRESS] land is not a site of significance to [NAME_30]. 73 [NAME_198] said she lived just south of Moruya but part of her family are traditional [NAME_22] people. She said: I have knowledge of most of the sites from pretty much – yes – pretty much Eden up to around Ulladulla. I have some knowledge of sites between Ulladulla and Kempsey, but I have more knowledge of sites in Kempsey as well, because that's where my [NAME_142] spent most of her life, and I have the knowledge that was passed to me by her. But we have always been [NAME_25]. My ancestry goes back through the [NAME_228], it goes back through the Bolloways. [NAME_229] – everybody who belongs to country down here has to relate back to the Bolloways or the [NAME_231], and I relate back to both. I would not be on the register of [NAME_2] owners if that wasn't the case. … …my traditional tribal group borders on the [NAME_22] tribal group. Our boundary of the Brinja-[NAME_126] of Moruya stops at [NAME_1] inlet. And the [NAME_1] inlet people's boundary stops down the other side of Bega. They have quite a big country. They are Djiringanj people. We are Brinja-[NAME_126]. But we share – share borders. And even though we are different tribal groups, they are still like our – in your way of thinking, it would be like our first cousins. 74 [NAME_198] confirmed that she could speak for Mystery Bay as a traditional owner who was descended from an ancestor who came from that area. She said: Mystery Bay is pretty significant. It's actually quite significant to [NAME_30] and a lot of [NAME_30] still camp there, because that was a traditional campground. 75 [NAME_198] explained: Sites of significance can be anything from middens to knapping sites to places where people collected resources, but they're not sacred in the sense that that's where our ancestral being created certain – or did some act or there was some event or the land – or the landform was created by our ancestral beings; they're significant sites. They're akin to what churches are to other people. A significant site is anywhere that [NAME_30] have been and they've left evidence of their occupation. 76 [NAME_198] believed she had a traditional right to fish along the coast but that the fisheries law had stopped that from happening. The same applied to traditional rights to hunt. She also believed she had a traditional right to take fresh water and wood from land provided it was not privately owned. She explained: I don't imagine that people said that in so many words. It was just an accepted thing that we needed the wood for fires. The role of women and children – well, I know it sounds menial – but everybody had a role in the camp and women and children were responsible for setting up the camps while the men hunted, but that's not to say that women's jobs were any – were menial, it was everyone had a role, even [NAME_140] boys up until they went through initiation had to do – had to collect wood and water and bring it back to the camp for the whole camp. Everybody had a responsibility and still even today, when we camp, those responsibilities still hold. … I didn't have to be told that's what the ancestors did, because it was just – it was common knowledge. It was accepted it was a part of our life. It didn't have to be communicated that that's what everybody did. We know that's what everybody did from our stories. 77 [NAME_198] explained that there were 13 tribal groups of the South Coast. Specifically: The [NAME_30] who lived in Sydney are called the Dharawal People. The [NAME_30] from Wollongong were called the [NAME_232] the people from [NAME_136] are the Wodi Wodi. The people from Orient Point were called the Jerrinja. The people from Wandandian were called the Wandiwandian People, which means Valley of Lost Lovers. The people from Ulladulla are the Murramarang People. The Braidwood people are [NAME_233]. The Araluen People are called Alleluen. The Batemans Bay people are [NAME_159]. The Mogo People are [NAME_159] all the way to Moruya River. Moruya to [NAME_22], Wodonga Inlet are the Brinja-[NAME_127]. The [NAME_120] to Bega people are the Jerrinja. The people who live at [NAME_163], who are now extinct, because they were all massacred, were called the Wathargal or Wallagadan. Both of those words mean "little people" and that's because those people were only like around four foot tall. And the people down at Eden are called Dharawa. There's four different languages spoken on the coast. The Dharawal is spoken from Sydney down to [NAME_136]. [NAME_125], the language that I speak, is spoken from [NAME_136] down to [NAME_22]. From [NAME_22] to Bega, they speak Djiringanj. And down in Bega, they speak Dharawa. 78 She had been taught this by her elders. She said: My [NAME_142] was [NAME_235]. She was a very, very cultural woman. [NAME_204] and [NAME_214], I hung around with them a lot when I was younger, and that can be verified. [NAME_204] was my mother's best friend. I learnt a lot of stuff my mother. I've learnt from [NAME_205], who I was related to through the Donovan side of my family. [NAME_201], who was – she was a [NAME_109] before she married a [NAME_202], who lived on [NAME_120]. And I'm not just claiming this. All of these people I've spoken of have passed, but I also learnt from another people today who haven't passed. [NAME_219] being one. I had to lot to do with [NAME_212], who was her husband. I had a lot to do with [NAME_238], who was [NAME_201]' husband. I had – I still do have a lot to do with [NAME_240], who is [NAME_50]. [NAME_241]. 79 She had been taught that the land of the 13 tribal groups: …starts out at Botany Bay at La Perouse. It goes inward to Campbelltown. It follows the second row of the mountain range down past the Victorian border to a point where it lines up directly west of Cape Howe Island; that is [NAME_127]. 80 She had been taught this by: [NAME_209], who passed away not very long ago; [NAME_244], his wife; [NAME_212]; a lot of the Campbells actually. The Campbells. I've – I was one of those kids that loved to hand [sic] around the old people and it's as simple as that. And every time there was an elders council meeting, I was able to get myself invited to those meetings in some capacity. But, in addition to that, I used to work for the Far South Coast Regional Land Council and I worked as a research officer and it was my job to interview old people before they passed. And there's a collection in the Australian institute of [NAME_2] Studies called the Brinja-[NAME_127]. I did that with [NAME_245] from [[NAME_1]] Land Council. Both of us were employed as [NAME_247] officers. And the oldest people I remember recording at the time was [NAME_248], who used to be a [NAME_251] – her name was [NAME_252] – and she was 92 years old. So a lot of the information we recorded, I have retained that knowledge and, in addition to that, sometimes they didn't want knowledge recorded, so they told me to turn the tape off and they would tell me other stuff that they didn't want recorded. 81 [NAME_198] further explained: Because I am a girl and I was – would have done that – everybody in an [NAME_2] group learns that from their mothers and grandmothers and sisters and aunties. That's the role of the women to teach everybody about bush food and gathering techniques. And it's only when boys get to a certain age that the men take notice of them and they take them off and they do men's business with them. 82 The boys learnt from the women until they were 9 or 10 years old. She also said: • men wouldn't have taught them how to use a fishing line. Men fish with spears traditionally; women fish with fishing lines; • contrary to what that other affidavit [of [NAME_166]] says, the women dive for the lobsters in my family but there's no law that says only women can dive for lobsters, and there's no law that says only men can • [NAME_30] would treat fishing nets with the bark off the Geebung to make them dark in colour; 83 [NAME_198] said there was a difference between land that was sacred to all [NAME_30] and land that was significant to individual Aboriginals because of a personal connection with that land. She considered her family had a connection with all the land along the coast but that it was the community that made things sacred or significant or not. She did not consider that (personal) historical connections should override traditional community connections. 84 When she worked at the [NAME_38] depot she would walk along the edge of the treeline and would look into the [ADDRESS] land and was horrified at the rubbish that was being dumped on the land. She said it was a real valley in the land and steep with rock outcrops. She recalled seeing Burrawang plants on the [ADDRESS] land. She said: The [NAME_30] traditionally – the women would actually cover their hands in the latex substance, then they would collect the Burrawang seeds and put them into dilly bags and leave them in running water for three to five days. And then once the fish start nibbling on the actual Burrawang seeds then it's fit for human consumption and at that time it would be roasted and crushed and made into damper. And it was a staple part of our diet. A lot of [NAME_2] women know how to do that, but a lot are reluctant to do it because we don't want to poison ourselves. 85 She had been taught this by her [NAME_142] and all the old women who taught her as she was growing up. 86 She had not seen black wattle gum or native cherry trees on the [ADDRESS] land. She said, "the three plants that are mentioned, you can get them anywhere and they're a better quality in lots of other places". 87 She said that she would not take bush tucker from the side of the road because it has been polluted by the traffic. She had not collected bush foods from the [ADDRESS] land. She did not think it would be of superior quality to what you would find away from human occupation. She said: If I'm collecting resources, I will go into the bush where there's no traffic and there's no influence from modern development. 88 [NAME_198] said: I believe that if people have knowledge of bush food that they will source it where it better quality. It doesn't make sense to – to settle for lesser quality. 89 [NAME_198] said she undertook smoking ceremonies before taking people onto her country. This exchange occurred: So when we have a smoking ceremony we talk about how the smoke lifts peoples energies and it helps people to be more open to learning new things, and it's also about cleansing negative energies. And would – would you do a smoking ceremony as well to protect people while they're on country because they're strangers and the spirits don't know them? We do a smoking ceremony on – on the initial contact, and we'll do a smoking ceremony when they leave. But if there is women's business or men's business, there's also different kinds of smoking ceremonies associated with that. And so just getting back to that question, would the smoking ceremony have – have anything to do with spirits going home with people and leaving country with those stranger people? Yes. So could you just talk about that a little bit more? If you do a smoking ceremony when you come into country, that makes the negative energies – that you leave it outside of what you're going to do for the next few days. And then you're smoked when you leave to protect you on your way home. It's wallawarni. It means "safe journey", "protect your soul". "I hope your soul has a safe journey." And do you know of anyone who has been a stranger, gone on to [NAME_127] country, hasn't been smoked, has gone home and had some problems? Absolutely. When I worked at [NAME_38], I was responsible for taking home, to country, spiritual remains and different artefactual material that people took. And then they found that they had bad luck or – or strange things happened, so they brought them back to [NAME_38], and I was responsible a lot of the time for taking them back where they got them from. Right. And ? I've taken lots of [NAME_2] women's skeletal remains back to country. And does that help the spirits, then, when you do that? I know it might sound weird, but yes.

[NAME_253] 90 [NAME_255] was 65 years old in 2018. She is a [NAME_159] community elder, [NAME_159] being the name of a clan within the [NAME_127] nation. [NAME_255] is the sister of [NAME_31]. She is a member of the [COMPANY_139]. 91 [NAME_255] said she had been coming to [NAME_22] as a family since she was a child visiting relatives and picking which was the main occupation [NAME_30] had on the South Coast apart from timber mills. 92 [NAME_255] recalled [NAME_31] raising the [ADDRESS] land at a meeting of the [NAME_36] and [NAME_34] joint boards of management asking of there was any cultural significance of the [ADDRESS] land. No one said the [ADDRESS] land had any cultural significance. She had never heard of there being any cultural significance to the [ADDRESS] land. 93 In her oral evidence [NAME_255] said [NAME_159] was one of the 12 or 13 clans of the [NAME_127] covering the area of [NAME_22] and to the north of [NAME_22]. She agreed that traditionally only [NAME_159] people could speak for the [NAME_159] area but that the custom had become more blurred since invasion. Her personal view was that: … anything within the [NAME_159] area I would defer to [NAME_159] people, just same as down a bit further south, peoples on Djiringanj land - land - I would probably defer to Djiringanj people. 94 [NAME_255] considered that her [NAME_6] rights would extend to the whole of the [NAME_256] area because of her lines of descent. In her childhood they had spent most of their time travelling up and down the coast hearing stories. She said some people might consider it remnants because for a long time [NAME_2] culture had to go underground and [NAME_30] were not encouraged to maintain their language and culture but stories were passed on by elders, as well as cultural things like shell work. As a [NAME_130] she considered she could go anywhere in [NAME_127] country "within certain restrictions". [NAME_127] country extended from the Shoalhaven to the Victorian border. There were areas she had been told by her elders no to go like Pippi Beach and she had never been there. She explained that: …in a lot of cases they would say, "Don't go there. You can go there. You can't go there. Don't – you can't catch that fish" or, you know, different things like that. You just, as a child, just soaked up information like a sponge. 95 She said that as a [NAME_130] she would be entitled to fish unless it was a marine park or some other government regulation prohibited it. She knew Glasshouse Rocks as a good fishing and diving spot. She knew as number of [NAME_126] who fished and dived there. She said that they were entitled to do so and she was "a very strong believer in [NAME_2] fishing rights". Glasshouse Rocks was near to the [ADDRESS] land and she would assert the right to fish and dive at Glasshouse Rocks. She said a [NAME_159] person should be entitled to fish at Little Lake depending on the land tenure there. She has also picked native fruit and had been told about those by her [NAME_142], mother and sisters. She said that her entitlement to do so nowadays was complicated by land tenure but if she was allowed to access the land she would feel entitled to do so to collect native fruits. Depending on the tenure, a [NAME_159] person could collect native fruits from the land. She knew of Burrawang seed but had never collected it herself as it was poisonous and had to be prepared a certain way. She considered that she had an unbroken connection to the whole of the South Coast. She asserted that connection to the entire South Coast, and not only places of particular significance. She said all land has significance but particular sites have additional significance. She agreed that when she asserted rights as a [NAME_159] person she could do so anywhere in [NAME_159] country. 96 She recalled the meeting of the [NAME_35] joint boards of management where [NAME_32] had asked members of the boards about the significance of the [ADDRESS] land to [NAME_30]. She thought it probable that [NAME_32] had a map with her. 97 [NAME_255] did not know of any person who went onto the [ADDRESS] land. She said she did not know everything but as the joint management co-ordinator for the [NAME_35] joint boards of management for five years she had never heard of anyone saying the [ADDRESS] land had significance.

[NAME_219] 98 [NAME_257] was 83 years old in 2018 and from [NAME_120]. She is a member of [NAME_24]'s claim. She was a member of the [NAME_2] and is a traditional elder of the [NAME_126]. [NAME_182] (now deceased) was her partner for 30 years and was also from [NAME_120]. She was born in Bega and moved to [NAME_120] when she was 14. She went back and forth to Bega but moved to [NAME_120] permanently in 1966. She knows [NAME_22] very well especially the sites of significance to [NAME_121] people. Mystery Bay is a site of significance as is [NAME_34]. There are also some burial sites in the area. [NAME_257] had never heard of any burial or significant sites on the [ADDRESS] land or of anything like that. Her father was a traditional elder. He knew where all the significant sites were in this area. The same is true of her son [NAME_258]. If there was a significant site at the [ADDRESS] land they would have said so. They never did. She did not know anyone who has said there is [NAME_121] significance in the [ADDRESS] land. The only knowledge she has of the use of the [ADDRESS] land is of kids riding bikes and motorbikes through it. In her oral evidence [NAME_257] said she would call [NAME_120] her traditional country. She could speak for that country. Her mother was [NAME_260] and her father [NAME_127]. She learnt about both countries from her family. She could also speak for [NAME_260] country. She said she classes herself as a [NAME_260] and [NAME_261]. She asserted [NAME_6] rights in [NAME_260] country. Her father was born in Batemans Bay and the family travelled all up and down the coast where he worked in sawmills. He would not sit and talk because he was working. She learnt about [NAME_127] country from her partner [NAME_182] who was a [NAME_127] man. She asserted rights to do things on [NAME_127] country as a [NAME_130]. She said she could do food gathering like getting seafood, oysters and shellfish called bimbullas (cockles). She said she could do this at [NAME_22] as of right as a [NAME_130] provided the area was not the subject of a lease. 99 [NAME_257] knew of Glasshouse Rocks which was [NAME_127] country. She agreed that [NAME_126] could fish there because they were [NAME_127]. She had not heard of Little Lake. She was aware of Fosters Bay but had never been there. She had been to [ADDRESS] but not onto the land. She agreed she could go onto the [ADDRESS] land as of right as a [NAME_130] provided it was not owned by [NAME_95] people. She said she thought she had the right to go into any bush on [NAME_127] country that was not private property. She could also collect things from such land such as Burrawang plants. She had been taught by her elders to collect bush foods. She would also be able to take ochre, grasses and wood from the land. She could do so because the land was [NAME_127] country and she was a [NAME_130]. 100 When asked about sites of significance in [NAME_257] said: What's there going to be in [ADDRESS]? [ADDRESS] is a built-up area, come on. 101 She explained: Sites of significance is a place where the old, old people may have gathered, but the younger people these days, they don't gather there. I mean, people my age, they've never – to my knowledge hasn't gathered there, but that's me. 102 She said no one had camped on the [ADDRESS] land to her knowledge.

[NAME_53] 103 [NAME_262] was 65 years old in 2018 and a community elder of the [NAME_127] nation. Her father was a [NAME_127] elder and her mother a Wiradjuri woman. She is a member of [NAME_24]'s claim. 104 [NAME_35] are places of major significance to the [NAME_127] nation which spans from La Perouse to the Victorian border. [NAME_34] is a women's site where there is a healing rock, a women's fertility rock and where rituals occurred in the past and [NAME_36] is a men's site where men's ceremonies took place in the past. 105 [NAME_262] was born in Narrandera and moved to La Perouse as a [NAME_140] child. Throughout her childhood her family would come to the [NAME_22] area for seasonal picking. She has known this area intimately all her life. Her father always told her cultural stories about the South Coast and their connections to it. According to [NAME_262], every family has their designated story tellers. Her father was one and her sister [NAME_263] is another one, as she knows lots of stories. 106 [NAME_262] has had direct knowledge of the [ADDRESS] land since she was in her 40s. When she camped at Mystery Bay she would buy blocks of ice from a house on [ADDRESS] which is near the [ADDRESS] land. She did not have any knowledge of anything of cultural significance about that area because it was never discussed or contemplated at all. If something was important there of cultural heritage or knowledge she said they would have known about it. 107 She recalled the issue being raised at the [NAME_36] board of management meeting in late December 2016. The [NAME_36] and [NAME_34] boards unanimously confirmed that there was no cultural significance to the [ADDRESS] land. At those meetings there was a combination of knowledge holders of traditional law and custom which extends not only to [NAME_22] but to the whole region. She described those boards as a "packed house" of [NAME_2] knowledge. [NAME_262] stated that there was no debate as no one disagreed with the decisions. In oral evidence [NAME_262] said she was [NAME_31]'s first cousin. Her father and [NAME_31]'s mother were brother and sister raised at La Perouse. She was also raised at La Perouse with [NAME_32]. She later moved around with her husband who was in the military. They retired to [NAME_22] five years ago. When they were living away from the area they always maintained their connection with it and would return for holidays camping at Mummaga Lake and Brou Lake north of [NAME_22]. She considered that area as part of her traditional country. She could speak for that area and the two mountains. She said there were sites all up and down the South Coast about which she had traditional knowledge she had been told. She agreed other [NAME_30] might not know what she did and she did not know everything either. Her family would go pippying and shell collecting. She talks to her ancestors all the time. The old people used to do that as well. It was important to connect to the spirits of the country. That is why she moved back to the area. Her brothers all fished the area. Everyone had a role on food production and food is shared when camping. If there was any issue about traditional land she would speak to the elders about it as everyone would have to be involved. 108 [NAME_262] described the meeting of the [NAME_35] joint boards of management about the [ADDRESS] land. She said: Well, there was – you know, there was discussion because there was a lot of knowledge holders there really, and awesome knowledge holders there. And sort of like [NAME_266], [NAME_99], he – he was [NAME_137]. And so, the discussion happened and then I must say that this was only registered – it was the [NAME_2] owners' meeting because we have other people on the Board as well that are not [NAME_2]. And so, this was just an [NAME_2] owner meeting, and they all voted that – that there was of no significance for [ADDRESS]. 109 There were people at the meeting who could speak for [NAME_22]. She said: …there's [NAME_56] and there's [NAME_99], and there's also [NAME_117] – [NAME_116], and there's – [NAME_113] has a really good knowledge of it because, as I said, she was on the negotiating panel… … [NAME_93]… [NAME_267], and [NAME_267] is more so the – through her family because each family have knowledge holders, and I must say my sister [[NAME_263]] is one of those knowledge holders also…[as] there are particular people in each family that are the knowledge bearers… And [NAME_94] will – will tell you that [NAME_106] is the knowledge holder, even though [NAME_94] has a lot of knowledge, but [NAME_106] is the bearer. 110 She explained that her sister, [NAME_263], was the knowledge bearer of her family as her father would tell [NAME_264] all the stories and give her more information as time went on. Every family had different versions of the same story about sites but it did not mean one was right and the other wrong. She said the [NAME_127] connection extended from La Perouse to the Victorian border. 111 She knew the [ADDRESS] land and had been there. [NAME_31] had made her aware of the [ADDRESS] land. When [NAME_32] raised the [ADDRESS] land at the joint boards of management meeting most of the people were aware where the [ADDRESS] land was. Its location was pointed out to them and a lot of them knew it. They said stuff about what they knew of it and it was agreed that there was no [NAME_137] significance on that land. The topic discussed was the cultural significance of the [ADDRESS] land. She explained significant sites as follows: I would say of significant sites, like, for example, [NAME_34] has these big bolder rocks and they – because it's a woman's site, and there is there – there's a healing rock, and also there's a fertility rock there, that's – that's one example. And [NAME_36] has a [NAME_137] significant site of where there were men's ceremony and initiations taking place at [NAME_36]. So, that's the significant sites is what I would say. 112 She believed she had rights to go pippying on Pebbly Beach as did her family because they were descended from ancestors of that area who had a connection with that area as she did. The same with hunting in that area, as well as bush medicines.

[NAME_269] 113 [NAME_272] was 60 years old in 2018 and said she was a custodian of the local area and the [NAME_127] nation who was well known in the [NAME_169] family and the whole Southern Region. She was born in Bega and had lived in [NAME_22] since 1960. She is a member of the [COMPANY_139]. 114 Her mother was of the Gunnai people and her father was a [NAME_169] of the [NAME_127] nation. He was a fisherman. He regularly fished at places like Corunna Lake near Mystery Bay, [NAME_120] near [NAME_34], Brou Lake near Turros and Mummaga/[NAME_273]. She said her elder people have always transitioned between [NAME_92] [NAME_5] including in the [NAME_22] area. She learnt about [NAME_121] culture in the [NAME_22] area from her family, her parents, siblings and aunties and uncles. They are the mob and they pass knowledge from generation to generation. Her knowledge comes from both the Gunnai people and the [NAME_126]. [NAME_274] is her brother but from a different father. 115 She and her family had always camped in the [NAME_22] area all the way down into [NAME_92]. Camping was a part of her childhood. She still camps at Mystery Bay. There used to be some [NAME_30] camping at Smyth's Oval a long time ago. She knows where the [ADDRESS] land is but has not been there. She has never heard of anyone saying that they have been involved in cultural activities at the [ADDRESS] land. To the best of her awareness she does not know of anyone saying the [ADDRESS] land has any [NAME_121] significance and in her opinion it is not a significant site. In oral evidence [NAME_272] said her father was [NAME_174] who was born in 1919. She knew Little Lake. In response to what [NAME_166] had said in his affidavit about fishing with her father at Little Lake she said it was not known to her that her father fished at Little Lake. She said: Just in regards to my father, I have fished – done a lot of fishing with my father, as he has took his children with him. And they were places of [NAME_120], Brou Lake, Tuross Lake, even Tilba Lake. Just down the road here. [NAME_120], Tilba, Corunna Lake, Brou Lake and Tuross Lake. 116 In response to what [NAME_166] had said about her father taking the bark from trees in the [ADDRESS] land which he would boil up to cure his nets she said: I don't have any recollection of it, right. I'm not familiar with the land, and up until now ..... with that. But I don't have no recollection. And it's not in my affidavit, but my recollection of doing anything with the nets, as I got older, was helping him make nets. And also soaking them in tar. … That was done on our property at [NAME_22], which we still have today. And boiling tar. Tar stiffens up the nets. Yes. And then he let them dry, and that's how it was done. But I do not have any recollection of taking bark off trees and doing whatever supposedly had to be done to treat nets… if we were using bark it would be to light fires wherever we were camping on riverbanks… To light a fire to cook a meal, or for heating. Not for boiling – not for boiling. Not for boiling up a whatever, a container, and I've never seen a net put in a container. And not for – and anyway, my father didn't carry nets with him wherever he went, his netting was left here in [NAME_22] on our property… …it's [ADDRESS], [NAME_22], which was bought in 1960. The property – the property consisted of where he made his nets. Where he has stretched his nets for over on the lake at [NAME_22]. And, yes. And as far as I – my knowledge is, right down to the edge of ..... , is – is he wanted to stiffen up his nets to make them secure to put into the lake. He used tar, as in the tar from a road – making a road. Yes. Not – not – I don't recall anything to do with bark, or how would you go about even boiling up bark or doing anything with bark. I do not have any knowledge of him doing that. … Yes? I don't recall anything of gathering bark to do anything to those nets. And when you say you don't have any recollection of him gathering bark, do you mean in the [NAME_22] area or anywhere? Anywhere. Okay? No. I mean, there's a – there's a difference, right. As I said yesterday, there's a difference. Our family was a traditional [NAME_2] family. We're transitional. Even though we were home-based in [NAME_22], we were transitional, and the only way we gathered bark, or wood or anything was when we moved to places to work in bean paddocks. Yes? Or potato picking in seasonal work when fishing – when he wasn't fishing. And that's when we used to gather wood just to use for an open fireplace. That's it. 117 [NAME_272] had attended meetings for [NAME_24]'s claim and described the claim group as the custodians of the [NAME_127] nation which extended from La Perouse to the Victorian border and west over the Clyde Mountain to the eastern side of the ranges. The claim covered the [NAME_22] area. She confirmed she was born in Bega but had been brought to [NAME_22] when she was two and [NAME_22] had remained her home town since then. Her father was born in 1919 in Sydney but was from the South Coast. Her brother [NAME_185] was born of the same mother but a different father but had lived here most of his life even though he was not [NAME_127]. She said: …he's not [NAME_127]. He has lived in [NAME_127], brought up in [NAME_127], but he has got – his father was – [NAME_275]'s father was actually a [NAME_276] man from Cummeragunja, but our mother was [NAME_260], and that's how we put it in – in our cultural play of speaking about family. 118 Her father was brought up by [NAME_277] who was related to [NAME_164], perhaps being a [NAME_137] [NAME_147] or grandfather to [NAME_164]. Her father was the oldest raised by [NAME_277]. He was known as the oldest brother of the family but he took the [NAME_169] rather than the [NAME_165] surname. She said old people only tell you what they want to tell you. An older sister of her mother had told her things that she had never told the other 26 or so nephews and nieces. She agreed that it was possible her father had taught her brother things he had not taught her. She said her father had taken them fishing, down to [NAME_120] and places while he set the nets in the boat or, yes, go in the boat with him, row the boat out, we would have to set net – you know, fall over the back of the boat and then pick it up the next day. 119 She said also: …we used to sell Christmastime cooked prawns and fish at the front of our house while he went out to clean his nets out and reset the boat up to go out again that night. 120 [NAME_272] explained that when walking with her brothers and sisters they would see an elderly man who used to camp at the edge of the oval (Smyth's Oval) but she did not know if he was [NAME_127]. She said her father was a lake fisherman but she found it unlikely he had fished in Little Lake when other lakes were so big and given the amount of fish he used to catch but accepted it was hypothetically possible. Her father would take fish with him to give to people, sharing food being a traditional thing [NAME_126] still did today. She agreed that sharing food had been passed down the generations. The old people had taught her that you were [NAME_127] if you were born into a [NAME_127] bloodline. Her brother [NAME_171] was passionate about fishing rights. She said: … fishing rights are down to the fact that being [NAME_30], we should be able to go and eat food out of the water and get food out of the water without having to go – to be incarcerated for getting a certain amount of food. 121 She continued: I've been brought up with it. It's been – I've been brought up with it. I've grown up with it. I've been growing up with this and so was our family, and not only we're fishing, we're living off the land and been working in – as in transitional, as I told you, in bean paddocks and on riverbanks as well as – you know what I mean? It's just something that we've had to – that our parents had to survive. 122 Her family did not hunt and collect native foods, however. It was possible this had occurred when she was a child at [NAME_120] but she was not aware of it happening today. She did not know if [NAME_126] might have hunting rights today but thought they could probably collect wood for personal use. As to the [ADDRESS] land she said: I've never been taught that there's anything of [NAME_2] on the land or nobody has told me there's anything on the land or there's – there's a burial site there, or there's artefacts there, or – I don't know. Yes. I'm just saying – what I'm saying off now is if there's anything on the land, I will do something about it, but if there's not anything there, I don't know about it. 123 She also said: I would say everywhere we travel down the south coast there would have to be some sort of sites of [NAME_30]'s middens, eating sites, camping sites, probably even burial sites. 124 She explained "[NAME_121] significance" as: …there are places where our people have travelled, where our people have camped, right, throughout the – what do you call it, centuries or however many years ago and those sites – some of these sites are still there, but some people don't like to let people know where they are either. Yes. Now – but I know that ..... know that down at – past [NAME_120] that they found a midden – did find a midden site. Down near Camel Rock ..... down the – yes – they – it's just my personal opinion is, I think, people – [NAME_30] can now keep culture with culture – can't put the word out that much more – and I think Land Council is keen to look after the culture of what's in the community out there. 125 She said [NAME_164] was her first cousin. This exchange occurred: So if Owen spent some time with your dad and was helping him prepare fishing nets that had been treated with bark, that's possible, isn't it? Yes. It's possible. Yes. … If [NAME_164] says that he walked from [NAME_120] when he was about six or seven with a group of old men from his family – for example, a man called [NAME_279] who is his grandfather – and camped around Little Lake and on the land the subject of these proceedings, that's possible, isn't it? Yes. Yes. It is possible, because, as I said, ..... traditional ..... walking. Our people walked and transitional – we did it transitionally in our family for seasonal ..... so there is nothing to stop anybody from walking from one place to another place, to another place, whether it's gathering food, hunting, fishing or camping.

[NAME_281] 126 [NAME_284] was 59 years old in 2018. He is a [NAME_127] man and a member of [NAME_24]'s claim. He said [NAME_126] were really clan groups and a person could only be an elder for their own clan. Further, the traditional practices for how one became an elder have largely gone. He did not see people being initiated these days and holding knowledge. People turned 50 and claimed they were elders rather than it being based on contributions to the [NAME_2] cause or community. He thought this case was a product of power struggles in the community because it was dysfunctional. He said contemporary [NAME_2] society had lost knowledge and practice of traditional arrangements. He said his kinship and cultural ties were [NAME_127] and they had been given to him through his bloodline and it did not matter where a person grew up. He said all [NAME_30] were displaced people as they had rounded all of them up and put them on missions and reserves. He is [NAME_127] through his mother. He was born and raised in Sydney but frequently came to [NAME_22] for visits or to continue his connection with country. He acquired knowledge about the local landscape and cultural practices on the South Coast from his [NAME_142] and uncles on his mother's side. He learnt a lot of things about camping and was told about areas to go and not to go. 127 [NAME_284] said he did not recall any stories about the [ADDRESS] land being a site of cultural significance in relation to ceremony or birth or even a camping site. He said the truth is all land and water in Australia is significant to [NAME_30] but there were places of higher significance where [NAME_30] strive to continue their traditional activities and connection. He was not aware of any higher significance of the [ADDRESS] land or any traditional activities in relation to it and it had never been mentioned to him in discussions with his grandparents, aunties and uncles. He thought the applicants for [NAME_24]'s claim were not representing true knowledge that may exist within clan groupings. 128 He said he had never heard of anyone going onto the [ADDRESS] land for resources like reeds, native cherry tree, ochre, medicine plants or Burrawang and that these were available everywhere around [NAME_22]. He did not consider [NAME_19] or [NAME_122] to have traditional knowledge about land in [NAME_22]. He did not believe their evidence was true. He thought [NAME_31] were in a better position than [NAME_19] or [NAME_122] to assess traditional law and custom relating to the [ADDRESS] land and thought [NAME_141] has a very good grasp of [NAME_2] traditional law and custom in and around [NAME_22] and the region. [NAME_141] was close to [NAME_212] and [NAME_214] who were responsible for gaining protection of culturally significant sites such as [NAME_35] and were established [NAME_127] knowledge holders of the South Coast region. [NAME_141] also gained knowledge from [NAME_285] [NAME_207]. He believed that if the [ADDRESS] land was culturally significant it would have been raised before this case but never had been. He said that the history of displacement and dismantling of traditional structures of [NAME_30] has caused [NAME_30] to struggle with what is appropriate about what stories genuinely apply to lands and who has the stories. In oral evidence [NAME_284] confirmed he was the Chief Executive Officer of the [NAME_2] the area of which was south of Mystery Bay but that he lived in [NAME_22]. He agreed he asserted [NAME_6] rights in [NAME_24]'s claim by reason of his descent from a family member from that area. He said he asserted such rights over the entire South Coast including the [ADDRESS] land as part of the total claim. He said his grandparents, aunties and uncles had taught him about the clans of the South Coast. The rights he asserted included going on to land for traditional purposes, including hunting and gathering. He said: … all land is important to [NAME_30], you know. We've always claimed that. We've always claimed sovereignty… 129 He explained: You know, it's more around the [NAME_4] use of areas, and in terms of [NAME_2] cultural practices, there were sites of significance where ceremonies, spirituality and business was done, and there were other [NAME_4] sites. And that's what I believe this site could be, of a [NAME_4] nature. MR [NAME_16]: So you would agree that [ADDRESS] is a site of [NAME_4] nature? [NAME_286]: Yes. MR [NAME_16]: Well, you'd agree, wouldn't you, that as a [NAME_6] holder, you'd still be entitled to assert rights in an area of a [NAME_4] nature? [NAME_286]: Yes. As I said, all the land is important to us. 130 He continued: …here we have a situation where we've got the site that's not a significant or ceremonial site, but this site can be used for the - for the well-being of the - of the community. You know, we live in an area where there is very little industry, very little job opportunity, and we're suffering through opportunity to improve lives for people, you know, whether that's employment or health, and this is an opportunity. I see this as an opportunity where the things can be created, that people can take that opportunity and improve their lifestyles and their position in society… … it's about distinguishing that [NAME_6] on solely that piece of land, not the whole title, not the whole claim, so that the local community and the surrounding community can gain some benefit… … [NAME_1] wants to develop the land, and like any landholder or owner, they want to provide some improvement and opportunity. You know, it's not just about [NAME_1] and its benefits; it's the broader benefit for the community. You know, if this goes ahead, you know, that we look at how many jobs it's going to provide, the sustainable - sustainable income, so looking - going into the future there's something sustainable. 131 [NAME_284] agreed he would assert [NAME_6] all around the [ADDRESS] land. He gave evidence that at a meeting a member of the applicant group for [NAME_24]'s claim said that this proceeding could jeopardise the whole of the claim which he did not wish to do. He said there were no culturally significant sites on the [ADDRESS] land and it had never been mentioned but he still asserted it was his country and he had rights there. When asked what percentage of Australia he would say should be subject to [NAME_6] rights [NAME_284] answered "all of it".

[NAME_59] 132 [NAME_288] was 73 years old in 2018 and described himself as an elder of the [NAME_127] nation. He said he had lived in [NAME_22] nearly all his life. He is a member of the [COMPANY_139]. He grew up around [NAME_22] then went to Sydney for 10 years before moving back to [NAME_22] when he was 32 and had lived there ever since. He used to go past the [ADDRESS] land when he was a child to go fishing near Glasshouse Rocks. When he was about 8 years old a tip was put on the southern part of the [ADDRESS] land but it stopped being used as a tip in the late 1960s. Now the [ADDRESS] land is bush adjoining industrial land. He often goes to check the [ADDRESS] land as people dump rubbish on it which they clear up. He said he grew up when all the old people were alive who handed down information about sacred sites and no one ever mentioned anything about the [ADDRESS] land to him. He had cut wood on the [ADDRESS] land and had never seen anything of significance on it. 133 [NAME_288] said the older people like [NAME_289] died when [NAME_288] was about 16. Others who handed down knowledge were [NAME_182] and [NAME_291]. They were elders and passed a lot of stuff down. [NAME_288] benefited from their knowledge and the knowledge of his mother. When [NAME_23] considered the [ADDRESS] land in late 2016 [NAME_288] was present. He said the members of [NAME_23] did not know of any significance of the [ADDRESS] land or traditional laws or customs relating to it. They used to drive past the [ADDRESS] land when he was a kid to go fishing. They thought of it as a tip but nothing of any significance about the [ADDRESS] land had ever been mentioned. Mystery Bay was different. It is a significant place. So is Potato Point at Bodalla. There are a few other places where people would camp and fish. He had never seen camping on the [ADDRESS] land or any religious ceremonies on the [ADDRESS] land. He said he knew the area really well, all along the coast. No one had ever said anything to him about the [ADDRESS] land and if anyone had known he would have known. He said the people opposing the application are [NAME_140] people who do not know anything about the [ADDRESS] land. 134 He said his family were brought up in Bodalla and they picked seasonal stuff. They lived out at [NAME_120] for a while at the reserve. His Nanna lived there and he got to know all the old fellas there. He used to talk to [NAME_293]. His family used to stay with [NAME_295] and those fellas, real old people. His [NAME_142] was a medicine woman and handed lots down to his mother. He learnt knowledge from [NAME_182], [NAME_289] and [NAME_293]. He learnt fishing from them. The old fellas were trying to revive corroborees to teach the [NAME_140] but it never happened. This was in the 1950s when it could not be done because of the prejudice and everything was controlled. They could not do [NAME_121] stuff but they used to still talk about it. 135 [NAME_288] said he had knowledge of traditional law and custom around [NAME_22]. He knew important places no one else did. This was taught to him by [NAME_293]. None of the applicant group for [NAME_24]'s claim knew this information. When he was a kid he sat in the bush all the time. He used to regularly hunt kangaroos, rabbits and fish. He was taught this. He said that [NAME_30] talk about places of more or less importance and the [ADDRESS] land is not a significant place. There are cliffs on the golf course which are significant. [ADDRESS] land is not a site of importance to the [NAME_121] community. There is nowhere to fish on the [ADDRESS] land. The businesses and houses are right there. According to [NAME_288], [NAME_30] don't like to conduct traditional ceremonies in the view of [NAME_95] people and would not and do not conduct them on the [ADDRESS] land. 136 [NAME_288] did not believe the affidavit of [NAME_166] as [NAME_288] was not aware of any activities as referred to by [NAME_166] occurring on the [ADDRESS] land. [NAME_288] said [NAME_166] was from Ulladulla which is about an hour and a half north of the [ADDRESS] land by car. [NAME_288] said he knew many of the elders whom [NAME_166] claims to have joined on walks from [NAME_120] to [NAME_22] including [NAME_296], [NAME_297], [NAME_298], [NAME_300] ([NAME_226]), [NAME_302] and [NAME_304]. He knew [NAME_305] as [NAME_167] and [NAME_298] as [NAME_306]. They were both professional fishermen and not once did they mention the [ADDRESS] land to [NAME_288]. 137 [NAME_288] said he could not understand why [NAME_167] would be walking from [NAME_120] to [NAME_22] at this time as he lived in the town down near the football oval. He said [NAME_166] may have dived and fished at Glasshouse Rocks to the south east of the [ADDRESS] land (not the south west as [NAME_166] said) but could not have carried out those activities on the [ADDRESS] land. 138 [NAME_166] also incorrectly identifies Little Lake as to the west of the [ADDRESS] land. [NAME_288] said [NAME_308] was a professional fisherman and fished in the ocean and off the beaches and would not have fished in Little Lake. He had never heard of anyone fishing or catching prawns in Little Lake. If [NAME_308] had fished in that area he would have done it where the lake meets the ocean where fish are plentiful. 139 [NAME_288] said that [NAME_166] was wrong that there are freshwater sources on the north and south sides of the [ADDRESS] land. Dams have been constructed around the [ADDRESS] land but there are no freshwater springs on the [ADDRESS] land. [NAME_166] referred to camping on the [ADDRESS] land. No one had ever told [NAME_288] about [NAME_30] camping on the [ADDRESS] land. [NAME_30] would camp behind the football oval and very rarely went into [NAME_22] at those times as it was very prejudiced. [NAME_288] said the [ADDRESS] land had never been a camping spot for [NAME_30] and it was not safe for traditional cultural practices to be carried out there. He said that they used to camp down on the beach where they were protected from the southerly and easterly winds and they do not need to go to the [ADDRESS] land to get that protection. 140 [NAME_288] said it was not true that old [NAME_2] men from [NAME_120] would get drink from [NAME_22]. [NAME_2] elders from [NAME_120] would go to Tilba Tilba instead which is only a short distance from [NAME_120]. 141 [NAME_288] said that fishermen such as [NAME_308] would collect bark from trees when building nets but the iron bark required could be found anywhere. [NAME_288] had never heard of [NAME_167] taking bark from the [ADDRESS] land as detailed by [NAME_166]. 142 [NAME_288] did not believe [NAME_166] could have been 13 or 14 years old when the tip was put in down at [ADDRESS] but would have been an infant or not alive at that time as it happened when [NAME_288] was 8 years old. 143 [NAME_288] had never heard of anyone going on the [ADDRESS] land for bush tucker and regardless he stated that there is wattle gum and bush tucker everywhere not just on the [ADDRESS] land. 144 [NAME_288] did not consider [NAME_166] to be a knowledge holder. [NAME_288] said he knew the area really well and used to speak to the [NAME_137] knowledge holders who benefited from the knowledge of [NAME_214], [NAME_182] and [NAME_293] who had never said anything about the [ADDRESS] land being of significance. In oral evidence [NAME_288] confirmed he was a member of the [COMPANY_139]. His father's side of the family was from La Perouse and his mother's side from Monaro up in the mountains about an hour's drive from [NAME_22]. He had been involved with [NAME_23] for a very long time. He was married to [NAME_31] the current chair of [NAME_23]. He knew the [NAME_256] went from the Victorian border to Sydney. He said since he came back to [NAME_22] he had done a lot of fishing which he had a licence to do. He said the question whether a [NAME_130] had a right to fish in waters within [NAME_127] country was untested and as things stood you needed a fishing licence. He used to dive at Glasshouse Rocks for abalone and lobsters, which his father had taught him how to do, but back in those days the women did the diving. He agreed that when doing so people are not allowed to take too much and have to leave some for people coming later. He had hunted around the [NAME_22] area in the past when he was [NAME_140]. They used to hunt kangaroo, possums, porcupines and goannas and eels and go spearing mullet. They also took ducks. His father taught him how to hunt and old [NAME_291] and a few other old blokes. [NAME_291] was a strong influence on [NAME_288] growing up. He was interested in what [NAME_291] had taught. He taught his children what he had been taught. His mother was a medicine woman as was his [NAME_142]. You could go anywhere in the bush to get bush medicines which were secret to his family. He no longer collected ochre although one of his daughters did for traditional dancing she was taught by her mother, [NAME_31]. [NAME_32] had been taught the dances by her mother who was a [NAME_261]. He ate wild cherries which were plentiful around [NAME_22]. His mother had showed him they were safe to eat. All the old people would eat them. He was aware of the Burrawang plant but had never seen or heard of anyone taking the seeds which he believed were poison. That was common knowledge like the wild cherries. 145 [NAME_288] believed [NAME_126] should be able to take periwinkles off the rocks at the beaches around [NAME_22] and to collect pippies, dive for abalone and lobster, go fishing and collect oysters but was not sure if they were allowed to do so. He had collected oysters and periwinkles and stuff and shared the food with some of the real old people as his family taught him that and it was part of their tradition. When growing up he lived and camped with other [NAME_126] and they all shared food. He camped with his family up and down the coast, moving around doing seasonal work. When they were not working his father and uncles would get seafood and share it with the rest of the mob. They would stay with his [NAME_142] at [NAME_120]. 146 His son had tried to defend proceedings for taking too much catch by relying on [NAME_6] rights but he lost the case. A lot of people in the area believed that [NAME_126] had a right to fish in [NAME_127] country including [NAME_288]. [NAME_288] thought that right related to fishing off the beach not from boats. When he had a fishing boat he had a licence. 147 He explained significant sites as follows: Well, a significant site means to me is a burial ground, somewhere - but probably right along the coast is probably significant but just the - just middens and all that sort of stuff but, you know, significant ones means traditional sites, things like that. MS [NAME_15]: Would that include, say, scar trees as well? [NAME_59]: Yes, it would, yeah. MS [NAME_15]: And what about some artefacts, if people found artefacts would that be a significant - - - [NAME_59]: Well, you find artefacts everywhere, you know. You find them up the river here in low tide, like the water's up high now but there's a lot in the water. MS [NAME_15]: And so you're saying just here at the water, what, the [NAME_1]? [NAME_59]: Inlet, yeah. MS [NAME_15]: So is that a significant site for that reason? [NAME_59]: Well, it is but most days it's under water, you know. 148 There were some very significant places of which [NAME_288] was aware. Elders had told him about these places. He had told his family and a couple of people about them. He did not know if land which did not have significance could have [NAME_6] rights relating to it. He explained that that some people could not be trusted with information about significant sites. He agreed there might be other significant sites around [NAME_22] which he did not know about, but he thought he had a fair idea about all the significant sites and would be surprised if there was one he did not know about. He agreed he was just one knowledge holder and there could be others and that they could know about sites he did not know about. He agreed Mystery Bay was a significant site for all [NAME_126]. He agreed that when [NAME_2] heritage was discovered during building works [NAME_23] would be contacted to supervise the works and it upset him when the heritage was not preserved. 149 He agreed he had been an applicant on a [NAME_6] claim which had included [NAME_22] and the [ADDRESS] land. It was a blanket claim and he could not recall what had happened to it. The claim was initially by [NAME_288] and his wife [NAME_31] but was amended to include a number of elders as applicants. 150 [NAME_288] said back when [NAME_166] was talking about in his affidavit [NAME_30] would not have carried out traditional practices on the [ADDRESS] land because it was in the town with [NAME_95] people around. They would have done traditional practices away from the town and instead do it around [NAME_120] or over near [NAME_34]. Due to prejudice at the time (the late 1950s) it would not have been a good idea to do any dancing or ceremonies near [NAME_22]. People camped near the football oval where his family had camped with other [NAME_126] but they would not do dancing or ceremonies there as it was in the town. Dancing and ceremonies would have been done in secret near [NAME_34]. When they were camping at the football oval they would go to [NAME_1] inlet to catch seafood. 151 [NAME_288] said [NAME_2] men would not come into [NAME_22] for alcohol as it was a prejudiced town back then and instead they went to Tilba just down the road from [NAME_120]. He said [NAME_167] was married to his mother's sister and he had been fishing with him a few times. They treated their nets with bark from the ironbark tree. They had been taught to tan their nets by [NAME_95] fellas. It was a common thing which was done everywhere. He agreed the tip was located where there was now industrial development and extended onto the [ADDRESS] land. [NAME_23] had previous proposals to develop the [ADDRESS] land which had not come to fruition. 152 [NAME_288] said he would use freshwater if he needed to just like anyone else and had collected wood including from trees that had fallen over on the [ADDRESS] land. His brother had also collected wood from the [ADDRESS] land. Other people from town had also taken wood from the [ADDRESS] land. [NAME_288] used to patrol the [ADDRESS] land to protect the trees from being cut down.

[NAME_309] 153 [NAME_311] is the Chief Executive Officer of [NAME_23]. She is an [NAME_2] person but not a [NAME_261]. She moved to Eurobodalla in 1984. She visited her mother in [NAME_22] since 1984 and her mother had never mentioned the [ADDRESS] land. She said [NAME_23] considered developing the [ADDRESS] land from 2014. In that same year [NAME_313], an [NAME_2] archaeologist, did a four day sites identification and training management course with [NAME_23] [NAME_2]. Some of the people who did the course from [NAME_23] did a walkover of the [ADDRESS] land and said it had no cultural significance. [NAME_316] had been to the [ADDRESS] land three times. She described it as hilly with no clear spaces as it is all bush. She did not believe any middens would be on the [ADDRESS] land. No one had spoken to her about the [ADDRESS] land being of any significance and she was not aware of anyone going on to the [ADDRESS] land for cultural purposes. She said that when she went to [NAME_34] she went to go up the left side but stopped as she knew where she can and cannot go. She never got that feeling with the [ADDRESS] land. In oral evidence [NAME_316] said she was the chairperson of [NAME_2]. She could be a member of the [NAME_2] although she was connected to the Yuggera tribe at Brisbane and the Goenpul tribe at Stradbroke Island and the Bundjalung People up in Tweed Heads. Her family had moved down to the South Coast for seasonal work at first and in the end they decided to stay. She stayed in Sydney until 1984 but used to visit her mother who had moved down about 15 years before 1984. 154 [NAME_316] confirmed that the current board members of [NAME_23] were [NAME_31], [NAME_53], [NAME_317], [NAME_78], and [NAME_45]. [NAME_31] was the chair and [NAME_53] the deputy chair. [NAME_316] had never heard of any policy under which an [NAME_2] person had to get the permission of [NAME_23] to collect bush foods or go hunting on Crown land in the area of [NAME_23].

[NAME_56] 155 Ms [NAME_58] was 65 years old in 2018. She is a [NAME_261] who has lived at [NAME_120] all her life. She is a member of the [COMPANY_139]. Her mother, a [NAME_261], had also lived at [NAME_120]. She said the [NAME_127] extend from Sydney to the Victorian border. She is on the board of the [NAME_34] [ADDRESS] board of directors. She said that she used to walk down [ADDRESS] with her brothers when she was a child as it was a short cut to get to the tip where they would look for things. She saw the [ADDRESS] land. It was bush. No one ever told her the [ADDRESS] land was used for any [NAME_2] activities. She said, "[w]hen you're growing up people would tell you that sort of thing, but no one had ever mentioned that area". The only site of significance she knows in [NAME_22] is Mystery Bay where there are a lot of middens. She knew sites of significance because they would be taken there by the old folk and told stories of the places. They used to go up to [NAME_34] with the old people. There are sacred sites there and it is a women's mountain.

[NAME_274] 156 [NAME_193] was 66 years old in 2018. He said he was aware of significant sites in the area since he was a child, including Loaders Point about 4 km from the [ADDRESS] land where [NAME_30] used to camp. There are also two burial sites in the opposite direction to Loaders Point from the [ADDRESS] land. He said the [ADDRESS] land was not a significant area. People might have transited through the [ADDRESS] land but it is not a camping, eating or fishing site. Another significant site is at the mouth of [NAME_1]. According to [NAME_193], everybody knows these sites are significant. He said the land and weather tell you nothing happened on the [ADDRESS] land. He had lived in [NAME_22] all his life and knowledge was passed down to him by elders. There was a significant area for eating and hunting on one side of Smyth's Oval. He said when you get a picture of where the Kooris slept and danced you could see they were different areas to the [ADDRESS] land and if the [ADDRESS] land was used at all it would have just been to walk through it. It is hard rocky terrain and a low [NAME_283] which means the wind can come up it. No one would eat and sleep there. He grew up in a big family and the old people picked him to tell things and from age 5 or 6 he was told things by the old people like [NAME_167] who was [NAME_193]'s stepfather and others. 157 [NAME_193] was born in Orbost and moved to the area when he was 5 years old and had lived around [NAME_22] since then. Based on the knowledge passed down to him he had always known where he should and should not go and what is important. He taught this to his grandkids. His sisters and he had grown up with this knowledge. He said, [y]ou wouldn't camp on the [[ADDRESS]] land because it was too cold. People would have camped at Loaders Point behind the dunes and around [ADDRESS] or down near Smyth's Oval, out of the wind. They would camp away from the ocean breeze. 158 He had visited the [ADDRESS] land when he was a kid and walked through it. When you walk somewhere you can feel if you shouldn't go through there. He knows when a place is a sacred site and he does not feel that when he walks through the [ADDRESS] land. He said based on his knowledge he has no doubt that the [ADDRESS] land is not significant as an eating, sleeping or burial site and the [ADDRESS] land is not a place of [NAME_121] significance. In oral evidence [NAME_193] said he was Brabulung which was part of the [NAME_194] through his mother and his father was [NAME_276] [NAME_276]. He moved with his mother and stepfather [NAME_167] to the [NAME_22] area when he was 5 years old. He fished with his stepfather who told them where to fish and where to walk and not to walk. He had learnt from his stepfather and old people who came from this country. He agreed [NAME_126] could speak for the [NAME_22] area under traditional laws passed down from elders. He said Loaders Point was a sacred site as it was a burial place. He said it was a sacred site for the [NAME_126] which he was not as he did not come from [NAME_127] country. [NAME_193] felt uncomfortable giving evidence about land which was not his country as if he did so he might be harmed spiritually which was the way he grew up. The spirits could make you sick and he had been miserable since having been served with a subpoena to give evidence. He said [ADDRESS] was two miles from the [ADDRESS] land and the [ADDRESS] land was surrounded by [ADDRESS], Loaders Point and Glasshouse Rocks which were all places [NAME_126] camped or fished and which were important to [NAME_126]. He agreed the [ADDRESS] land would be [NAME_126]'s land.

[NAME_319] 159 [NAME_321] is 37 years old and a [NAME_127] man. He was born in [NAME_136] and grew up in Wreck Bay. Apart from moving to Wollongong for 6 years to complete a Bachelors degree in Science he has continued to live in and maintain connections with Wreck Bay, [NAME_22] and [NAME_120] being areas he has lived in and visited his whole life. He is a member of the [COMPANY_139]. 160 [NAME_321]'s grandfather was [NAME_322] who was a serious knowledge holder of the [NAME_126] covering the [NAME_22] region and all sides of it. His grandfather's father was also a knowledge holder of the [NAME_127] nation. His grandfather's brother [NAME_324] was a knowledge holder for the South Coast for [NAME_120] and [NAME_34]. He is one of the last elders in his family line apart from his two older sisters, [NAME_328] and [NAME_329] who are also important knowledge holders. 161 [NAME_321] and his sister were taken to [NAME_22] throughout their lives every year by their grandfathers and other family members who all know about traditional law and custom in [NAME_22] including the [ADDRESS] land. They were taken up to [NAME_34] and [NAME_36] lots of times. He had been to the men's site and his sister to the women's site and were told stories of country there. As they grew older they have continued to do these things. Their family members taught then about the ways of parents and country including fishing, hunting and gathering. [NAME_331] is [NAME_321]'s mother's first cousin. [NAME_332] and [NAME_334] are knowledge holders who have spent their life in [NAME_22] and have been taught about the area and know the songlines and the stories. [NAME_333] and [NAME_147] have taught their children and the [NAME_335] these things. They also taught [NAME_321] and his sister [NAME_4] history, which included knowledge about the animals, spears, shellfish, fish, stories and songlines. 162 In all the time he has been going to [NAME_22] to spend time with family he has never been taken to the [ADDRESS] land but has been in its vicinity. He had never heard of anything about the [ADDRESS] land or around there relating to [NAME_2] activities. No one had ever taken him camping on the [ADDRESS] land. He knows where the [ADDRESS] land is and says it is not culturally significant. He had never been hunting of the [ADDRESS] land or heard of anyone doing so. When they go to [NAME_22] the food that would sustain them is seafood, oysters, muttonfish and mussels and none of that is on the [ADDRESS] land. He had never heard about birthing sites or any ceremony on the [ADDRESS] land or heard of it as a camp site. To him, the [ADDRESS] land is just a "[NAME_4] bit of [NAME_22]". 163 He said he had a strong family connection to the area and holds the stories close to his heart. He now speaks for his father and grandfather who are gone and has their voice. That is the law according to what they were taught. He could not talk about his father's or grandfather's history if they were still alive, but now they are gone, he has to be the one to talk for them. 164 He did not know of any cultural significance of the Isabel Sreet land and had not had anything passed down to him about the [ADDRESS] land. [ADDRESS] land is urban landscape. [NAME_321] said they would not have gone to a place like that when visiting [NAME_22]. Their cultural values and heritage is not the sort of thing they want to showcase or display for "whitefellas". When they have gone to places in [NAME_22] for cultural knowledge they are taken out to bush and not to an urban area. A lot of their cultural values are done in secret. He does not think of the significant places by their "whitefella names" but by their [NAME_2] names as this was how he was taught. [ADDRESS] land does not have an [NAME_2] name and is not their ancestor.In oral evidence [NAME_321] described the [NAME_127] nation as extending from La Perouse down to Lakes Entrance near the Victorian border divided by two [NAME_2] languages, the [NAME_34] and the Dharawal. Both his parents were connected to the [NAME_127] nation. They were taught by his parents, aunts and uncles, and grandparents that they were [NAME_127] if descended from or adopted by a [NAME_130]. They were also taught about the laws and customs of the [NAME_127] by his extended family. They were taught about bush foods and medicines, stories of country and the connections they have with each other and extended families and their roles and responsibilities for protecting the environment. This knowledge was intergenerational even if changed a bit by colonisation. They had been taught that being adopted by the [NAME_127] made a person [NAME_127] which involved becoming a member of a family and becoming recognised as a part of that particular nation and community. 165 [NAME_321] agreed a [NAME_130] had a right to take resources from [NAME_127] country. They also had a right to fish in [NAME_127] country and he understood the grant of [NAME_6] would recognise the things they had been doing all their lives. He described this as: … a continuation of things we've already done, and we continue to do. Gathering natural resources is things we've done. It's things we were taught. It's things that we continue to do. Interacting with those cultural landscape features are things we've done, we've continued to do, and [NAME_6] will just recognise those particular things. 166 He continued: … there are resources in the mangroves that we take to – to make boomerangs with. There's resources in the mountains, [NAME_336] and other resources that we take to be able to make particular nullas and shields and spears and there's particular barks – stringy barks and others that we take to make other resources, yes, and we have done that. … We continue to do that, and we actually put some of those on display for education in places like the Australian Museum, National Museum, National Gallery. 167 He described other things also displayed as: Shellfish hooks, [NAME_2] technologies, intergenerational information that we think is important for other people to recognise still exists, as a promotional thing for cultural continuity. … Bark and reed. … Bush foods and medicines. 168 As to the latter he said: We continually consume those, and we also own a catering company that utilises those bush foods and medicines as well. So we share that as well. 169 He knew of the Burrawang plant and said that the leaching technology to be able to consume Burrawang is quite complex. He said that process had been recorded in the first encounters with [NAME_30] and knowledge of it had been passed down from generation to generation. He agreed certain types pf barks were used to tan fishing nets to stop them from rotting. He said the rights [NAME_127] had to country were given to them by their predecessors. He said: So we don't just go onto any old land and grab any old resource. We're not that nomadic [NAME_2] person that everybody has been talking about. We have customs and cultures and a religion and a connection to country that's quite complex. … … so places that hold significance to be able to take those resources from are places that are still bound into the customs, cultures and traditions of [NAME_30] who continue to take those natural resources. 170 [NAME_321] explained as follows: So do you think that there's probably particular places on [NAME_127] country that particular people have been introduced to that other people within the [NAME_127] might not know about? Yes. That's correct. And that may also be because of personal family choices and not want to interact. It's also because of prosecution. It's also because of colonisation, depending in the family circumstances. … Some families in our country have been taken away under the Stolen Generation procedures as well. So what other people have access to, not everybody does by virtue of the fact that [NAME_2] culture has been outlawed in this country under multiple legislative frameworks and government policies. 171 He agreed there was a differential spread of knowledge amongst [NAME_30]. 172 He explained significant places in these terms: They become significant by multiple reasons, if you're talking about being able to go to the afterlife. If you're talking about being able to be created. About getting children. About healing yourself. About particular different spiritual interactions. 173 Significance, he said, was an important, complex and unique concept concerning "the cultural protocols and cultural connections and religions that connect that space with us as human beings". He said: I believe we belong to the land. I don't believe the land belongs to us. So that's a big, unique difference when we're talking in this context, because we have significant places that are on that country that we have responsibility for caring for. Yes. 174 With respect to the [ADDRESS] land he explained: It doesn't hold that significance. To us it doesn't have that oral histories in our family line. It doesn't have that particular story of creation. It doesn't have that - those particular initiations based upon it, and it isn't somewhere that has been an ongoing part of connecting people to country. So it's - its significance - it's not significant to me because it hasn't been utilised for me to interact with country. So no. 175 When asked if nevertheless the [ADDRESS] land might be significant for other [NAME_126] [NAME_321] said: Well, if it was important for that, when we were brought down to that place or throughout our life the other extended families who say that it's so important would have ensured and made sure - because we're all one big family. This is something that needs to be spoken about. If it's - if we were taken down there and we were going on somewhere that was wrong - it's about cultural respect. The other members of the community who knew that that was a wrong area to go into would stop those other families from having interactions, and the significance would be spoken about and shared, and what I'm saying to you - if it was - if that was a significant place, the extended family and extended countrymen would have done that for us, but they haven't, and they didn't do that in my whole life, and that's the foundation by which I say that place holds no significance. Because even family members that had other knowledge about places like [NAME_34], [NAME_36], Nagiuga, all them different areas, they all participated, whether they were our family, extended family or not, in giving us that cultural knowledge, ensuring that we got what we needed whilst we were down there visiting, because we descend from those people as well. So that's the cultural customs I talk about. … So what I'm saying is if that place was significant, it would have been taught to people, and it hasn't been. It hasn't been taught to us, and we've been down there our whole lives, and our families still live in [NAME_22] and in and around that area, so … And I don't say this to take away from anybody else or to say that some of that knowledge may have been hidden in families for any particular reason, because I don't know about that sort of stuff, but what I'm saying is that that information would have been shared. It would have - just would have been shared. 176 He said: I simply can't answer on behalf of anybody else. I can only answer on what I've been taught and the cultural protocols that - that I've been raised with, and the situation for us is that that place has not been introduced to us as natural resources. We weren't shown about - we weren't shown any natural resources on there in all the times we were down there. We haven't been taking any resources from the property, and as far as our family is concerned it holds no significance. 177 He said he would not take resources from the [ADDRESS] land as he had not been taught it is a place to gather resources. He said that similarly there were places on the South Coast he had been taught to catch fish and not to catch fish from as a part of traditional law and custom. As he put it: There's bad magic in some areas that we're not allowed to interact with, and that just is what it is. 178 He said that their interaction with country was done in accordance with laws, customs, and traditions. For his part, he said: I know where to go. I know the customs and traditions and laws around that. I know how to access those resources. If it's to get – but to make any kind of implement, yes, I do know where those areas are, and I have access to them. If it's to get abalone or lobsters or pipis, I know where those areas are, and I continue to do those sorts of things. I know where to get the particular medicines from. I know where the high country medicine gardens are that have been there in place for thousands of years. I know where they are. I know how to get those medicine. And I have been doing that all my life and so have my parents, and so have their parents and so have their parents. And so what I'm saying is I do know where they are, yes. 179 He agreed that as a [NAME_130] he would respect his elders. He gave this evidence: And you would agree that if an elder, say, who was – what – a generation above you or two generations, maybe in their 60s, if they talked about a place where they got resources, you would respect that knowledge, wouldn't you? Well, everyone gets their resources from wherever – from wherever they've been taught, so I don't – I'm not here to question anybody else. I'm just here to talk about what I do ..... challenge anybody else. That's their truth. That's what they believe. That's their – that's in accordance with what they've been taught. So, yes, I don't disrespect or disassociate anybody else's place of gathering. No. So you agree with me that there's places of gathering that other people might know that you don't know? Yes, of course. Of course there is. I thought just before, [NAME_321], that you said you know every single place on the South Coast to gather resources? Now, let me correct you because you mustn't have heard me correctly. I said I know where to get the natural resources for myself and my family, and I do that in accordance with what cultural laws and customs and traditions have been given to me and the interactions with the country that have been given to me. So, yes, I know where they all are for the circumstances of me and my family. So that's the correction. All right. Thank you ? I don't say that on behalf of everybody else. I say that on behalf of me and my family. So that's the correction. Sorry, [NAME_321]. I got that wrong. That's my fault. So you would then respect an elder of the [NAME_127] if they said that they were in their lifetime camping on and taking resources from a particular piece of land that you weren't aware of? You ? Yes. would respect that knowledge, wouldn't you? Yes, of course. Everyone respects that knowledge. 180 [NAME_321] agreed there were elders who had more knowledge than him and from whom he could learn more and that not everyone had the same level of knowledge.

[NAME_339] 181 [NAME_342] is 37 years old and is a member of the [NAME_343] and [NAME_127] nations. He is a member of the [COMPANY_139]. He said that he was giving evidence that the [ADDRESS] land was not significant to the [NAME_127] and "is not [NAME_6] country". He said he had visited the [ADDRESS] land many times and the [ADDRESS] land is not known among traditional knowledge holders as significant to South Coast Peoples. [ADDRESS] land, he said, is not used or thought of in that sense and any connection with the land was also interfered with by [NAME_30] migrating away from the land in the late 1700s or forcibly being taken to reserves around the turn of the last century. He knew this due to his work as a cultural heritage officer. 182 [NAME_342] was born in Moruya and moved to [NAME_92] for school until he returned to Moruya aged 24. He had learnt the history, knowledge and cultural practices of [NAME_24] from his earliest days. He has been involved in the study and occupation of indigenous heritage and [NAME_343] heritage for 22 years. By "[NAME_343]" he means the descendants of the 13 wives that occupy the territory between the Hawkesbury River in the north, the Snowy River in the south, and the base of the western escarpment of the [NAME_137] in the west. The [NAME_127], [NAME_159] or Dgiringanj are all sub-groups of the [NAME_343] people. He is [NAME_159] through his mother. 183 Many elders had passed down traditional knowledge to him including [NAME_344], [NAME_346], [NAME_293] and [NAME_182] and many others. [NAME_346] was a mentor to [NAME_182] to whom he passed on his teachings and was one of the greatest knowledge holders. These elders taught [NAME_342] testaments involving cultural stories including the [NAME_137] testament of Bundalloo and how the 13 wives created the 13 tribes of the South Coast. He had also undertaken a lot of research which expanded his knowledge. Since 2009 he has owned an [NAME_2] cultural heritage business and is its Chief Executive Officer and Chief Heritage Officer and is a registered Cultural Heritage Knowledge Holder. He is related to [NAME_31] and applicants for [NAME_24]'s claim. 184 The elders and traditional knowledge holders had taught [NAME_342] that in a [NAME_4] sense all land is important to some degree but this does not mean that it is significant. Significant land is land used by the people for activities which form a part of their social structure. [NAME_346] had taught that [NAME_2] occupation of their territory was disrupted by colonisation with [NAME_30] being pushed to the mountains and to the south. Because of this neither [NAME_346], [NAME_348], [NAME_212] nor any other traditional knowledge holders had taught him that the [ADDRESS] land was of any significance. Mystery Bay and Batemans Bay are different as they are significant to the descendants of the apical ancestors of [NAME_24]'s claim and are areas where the people did and still do camp and fish. 185 From 1997 [NAME_342] took [NAME_343] people to sites of significance along the South Coast reinforcing the teachings of [NAME_346], [NAME_348], [NAME_212] and many others. He said he knew the area very well and no custodians or traditional knowledge holders had ever said anything to him about the [ADDRESS] land being of South Coast significance. He considered that there was no ongoing connection to the [ADDRESS] land. [NAME_30] occupied the area at sovereignty they had not done so for the last couple of centuries and so as to avoid confrontation they receded from [NAME_22] to the mountains and further down the South Coast. From 1840 to 1860 they slowly started to approach the [NAME_22] territory and engage with the [NAME_95] occupants. In the late 1870s they started moving to [NAME_2] reserves such as [NAME_120] and others. Many remained in reserves for a substantial part of the twentieth century. He had lived in [NAME_120] from 1998 to 2000 with, amongst others, [NAME_182] and none of his elders had taught him the [ADDRESS] land was significant to his people. As a result, the [ADDRESS] land has not been used or occupied by [NAME_30] at any point from occupation to the modern day. 186 [NAME_342] did not regard the applicants for [NAME_24]'s claim to be proper traditional knowledge holders or representatives of [NAME_24]. He regarded [NAME_32] and [NAME_141] as renowned traditional knowledge holders of the [NAME_22] region who had also taught him about the area.He explained that [NAME_164] is his wife's [NAME_147]. [NAME_342] had never heard of any of the activities described by [NAME_166] in relation to the [ADDRESS] land. [NAME_342] said he was well aware of the legacy of the elders referred to in [NAME_166]'s affidavit including [NAME_300] ([NAME_226]) who was [NAME_342]'s [NAME_221] father. [NAME_342] said if the [ADDRESS] land had been an important place [NAME_300] would have taken him to it but [NAME_300] had never mentioned the [ADDRESS] land. [NAME_344] is not mentioned in [NAME_166]'s affidavit but she was an elder who also never mentioned the [ADDRESS] land. [NAME_342] had never heard of anyone fishing or hunting for prawns in Little Lake and believed he would have heard if this had occurred. He said that there are known fishing spots in [NAME_22] is not one of them. He said there is no freshwater on the [ADDRESS] land or natural springs there. He did not believe [NAME_30] would have camped on the [ADDRESS] land as there was a strict permit system in the 1960s that prevented [NAME_30] from freely roaming as they had been forced into reserves and could not camp randomly on vacant lots like the [ADDRESS] land. [ADDRESS] land is between the golf course and businesses and as such would not have had [NAME_2] activities carried out on it. [NAME_342] had never heard of [NAME_308] taking bark from the [ADDRESS] land. Further, there is bush tucker all over the South Coast and he had never heard of the [ADDRESS] land being used to gather bush tucker. 187 In [NAME_342]'s view [NAME_166]'s evidence of activities on the [ADDRESS] land was inconsistent with the compulsory displacement of [NAME_30] into reserves and the forced prevention of them practising culture so that in places like [NAME_22] the traditional connection with the land which existed in the long past had been lost.In oral evidence [NAME_342] confirmed his mother was a [NAME_130] by descent from her parents. Her family travelled up and down the South Coast to see family, for natural resources, for work and for a whole range of things. They had permission to travel from the [NAME_2] Protection Board. They mostly travelled from La Perouse to Mogo. The South Coast was their traditional country as [NAME_126] and they had the right to collect supplies from the land under [NAME_127] traditional laws and customs. He had been told these things by his grandfather and [NAME_142] and extended family. He explained: There is a particular way in which indigenous people, my people, specifically my people here on the South Coast, receive the oral knowledge and the historical testament beyond our people. It's not always the same. It's always open to challenges and debates. But where we find or where specifically I find an oral statement that is consistent records that are held by the colonial and early state governments, then it's my – and when I take that information to particular elders, primarily male elders but sometimes female elders, I ask for their opinion. They understand that. Only some of the time, they say that's correct. And 20 per cent of the time, they say that's not correct. 188 He agreed that [NAME_126] could hunt on [NAME_127] country provided they did so in accordance with traditional laws and customs but thought those laws and customs were not necessarily strictly adhered to today. The same applied to collecting reeds, and taking fish or abalone. He agreed that [NAME_126] still collected bush cherries and had heard of the Burrawang plant and knew some people still collected it. He thought that about 500 [NAME_126] out of about 10,000 strictly adhered to traditional laws and customs and others did not strictly adhere. He was aware of wattle trees on the [ADDRESS] land but not bush cherries. He said he was not aware of natural springs or a constant flow of fresh water on the [ADDRESS] land unless there was heavy rain. 189 He agreed that a [NAME_130] could fish off Glasshouse Rocks as that was [NAME_127] country if the traditional laws and customs allowed it. 190 He said that he had the right to comment on what an elder said provided he had permission from the head males of his clan. He explained: … the whole governing of the society is patriarchal, so I would – I've spoken to my [NAME_349], I've spoken to my brother ..... I've spoken to my [NAME_351] and I recently spoke to my two particular principal – primary principal elders, which is my [NAME_137] – my grandfather, but he is my [NAME_142]'s brother, before he passed away last year, but, most importantly, [NAME_353], because he is of a different generation. So he belongs to a generation that is very rare amongst our society. That is to say that his grandfather was born way back as far as 1830, so, you know, there's also a generational level of eldership and there's also an age level of eldership, but so long as I could have the confidence and they give me the rights, of which they do, to speak of particular things that I have knowledge of, then I can particularly ask particular questions of individuals that make statements only if I have, you know, a relationship and I have knowledge to the contrary of that particular individual. 191 He said he did not need specific permission from his elders to challenge [NAME_166]'s affidavit given the body of knowledge he had acquired over his life from elders. He was sure he knew more about traditional laws and customs than some [NAME_126] older than him, in their 60s. He explained: …you would need to, you know, be clear and direct of the particular individual that you're referring to, particular individual uncles and aunties and brothers and sisters younger and older and even elders, that I might know more than – than they would. But then it all depends on – on the two bodies of knowledges. So we have two bodies – we carry two bodies of knowledge. We carry the body of knowledge and information that – that is to the benefit or the consequence of Europeans coming to my people's country and – and we won't get into it, and the stolen generation and all the massacres. Forget about that. But you understand what I'm saying. Then we have the body and – and the body of information and the body of knowledge that is orally handed down that one experiences via certain events and circumstances and – and experiences that one would – one would experience in their life or – or observe in their life. So you've got to understand, there's two different ..... of information here. So in relation to – as I said to you earlier on, the best thing that we – we tried – we tend to do today, it must all – is that we try to ensure that there is a consistency, which there always is without it being disputed, between the body of knowledge and – and information in the sense of the oral, and that in respect and in relation to the Europeans that have recorded information about us from today all the way back as far as 1788. So to answer your question, Mr [NAME_16], there are particular uncles and aunties and brothers and sisters and first cousins and second, third, fourth, fifth, sixth, whatever you may want to say in relation to those particular lines of – of extended family members that I may know more than them than they would know more than me in relation to those two bodies of information acknowledge. But again, unless you give me particular – and you're being clear and direct of what particular individual, I – I can't put them all into one bunch… 192 He did not agree that [NAME_166] was an elder of the [NAME_126]. He was certain [NAME_166] had developed a lot of knowledge in relation to some traditional laws and customs but he could not say more. He said that he did not have to accept that [NAME_166] had walked with elders from [NAME_120] because whatever body of knowledge [NAME_166] has, in accordance with traditional law and custom, has to be passed on to his family and [NAME_342] was a member of [NAME_166]'s family, being married to his niece. He also said: …to walk from [NAME_120] to [NAME_22] in the 1950s, as I understand, one would need a permit from the [NAME_2] Protection Board, particularly to even leave [NAME_120]. As the very [NAME_4] public of the Commonwealth of Australia knows and of the states and the territories, they were very restricted. We couldn't just get up and walk anywhere we wanted to. And, yes, I appreciate that the distance of [NAME_22] and [NAME_120] is less than, in some case – in one case, you know, depending on what direction, 20 kilometres – I think, you know, the – you need to – to understand that it would have been very difficult to – to leave the mission, you know, without the – the – the manager not knowing or the manager knowing and – and – because if anything happened along the way, well, then the manager could be held liable. 193 He continued: …if the permit allowed them to camp, which I – and I very rarely believe that that would have been the case. Secondly, where they camped, and, thirdly, the supplies that one would need. Because back in them days it – it was very – as I understand from my own experience from listening to people like [NAME_147] and [NAME_349] and [NAME_147] [NAME_172] and – and [NAME_147] and – you know, it was a very racist time back then, and so that's to say that I wouldn't want to hear it two different ways, but, you know, the best – the best source of safety and protection that they have always had, particularly in the 1950s, was with the protection and safety of the mission manager. So for, you know, a bunch of black fellows to be getting up out of [NAME_120] and walking off into the wilderness without a permit, I think, is very unlikely. 194 He explained: Well, [NAME_147] has, you know, said a [NAME_137] many things to me, you know, about his past and when he was [NAME_140], particularly when he lived at Nerrigundah, particularly when he – he went to Kurranarri and when nan and pop – his mother and father – would travel up and down the coast, but he never mentioned to me – and even if it's for purposes of convenience, he never mentioned to me anything in relation to walking from [NAME_120] to [NAME_22]. 195 While he accepted the fact that [NAME_166] had not mentioned the event did not necessarily mean it did not happen he said: …the one thing that we can't do is be very secretive, and secrets and privacy doesn't exist in the traditional – or in the body of the tradition and in the body of the customs. Otherwise, there would be no body of custom or no body of tradition… when one is out and about in exercise and enjoyment of the traditions and the customs that is not to be kept a secret. That is not to be kept a custom – a private matter for one particular individual. The individual does not own that body of right. The individual is part of a skeleton – a skeletal organ and arrangement of – which is the people. So, you know, I know there's this European sense of looking at it, that he doesn't have to tell anybody. If it's in relation specifically to cultural – or the – or what manifests from our culture, and our customs and traditions, he is, strictly in accordance with the traditional laws and customs, required to give that information, otherwise how are the younger ones meant to learn what the older ones have done before them. 196 He continued: … yes, I wouldn't be aware when [NAME_147] has gone out camping or walked from [NAME_120] to [NAME_22], but I can assure you that no one can make the claim unless it forms part of the people's body of knowledge. Unless we are aware of that, it's just – this stuff is totally irrelevant to the body of knowledge of our people and our society in relation to our culture: what we manifest from those traditions and customs. 197 He returned again to this matter of the sharing of knowledge, giving this evidence: So you couldn't say that what Owen was saying is incorrect. You couldn't say that, could you? Over? No, I – I can't say that, and – and – and I wouldn't say that, Mr [NAME_16]. But to – again to assist you, Mr [NAME_16], it is a strict requirement in order for culture, as my people like to say it, or for the purposes of – of – of – of this particular matter, traditions and custom to continue to exist, it is a strict requirement that particular things are – are narrated, not back to particular individuals but back to the body of knowledge and information of the people, otherwise we would never know who we are and the things that we can and we can't do or the things that we have or we haven't done. So just to assist you, Mr [NAME_16], unless it's in relation to what he stated in his affidavit or if it's in relation – and if that relates to what has personally happened as a result of enjoying and exercising the rights of – all normal Australians do at that particular time, as opposed to – to continuing the traditions and customs of our people, I think you need to – to distinguish – because in relation to all the exercises and the privileges and pleasures that – every Australian enjoys that particular time irregardless of how the law was, no. But in relation to the customs and – and the traditions that were – that were maintained and preserved and continued at that particular point in time I would know and is correct. 198 He said the events in [NAME_166]'s affidavit were not held in the body of knowledge and information that is shared amongst the [NAME_126] as part of the continuation of their traditional laws and customs. He did not agree that there could be anything other than the one body of shared knowledge constituting the traditional laws and customs of the [NAME_126]. While some people may have learnt more about the traditional laws and customs of the [NAME_126] than others there was only one set of traditional laws and customs. As he put it: It is a law that we must strictly all hold, maintain and preserve the consistent body of knowledge of the traditions and customs of the society. 199 He did not accept there was any source of freshwater on the [ADDRESS] land saying that the slopes on the land meant run-off from rain would pond at the lowest point on the land. He said he would know if there was a source of fresh water on the [ADDRESS] land because of his involvement in the [NAME_2] culture and heritage industry.

Non-[NAME_2] witnesses 200 [NAME_23] called evidence from a number of non-[NAME_30].

[NAME_356] 201 Ms [NAME_358] owns [NAME_359] on the [ADDRESS] at [NAME_22]. She and her husband bought the hotel in May 2018 and have lived in it since. The motel is close to the north-west of the [ADDRESS] land. She has frequently driven past the [ADDRESS] land since she lived in [NAME_22]. She has never seen any [NAME_30] on the [ADDRESS] land but accepted it was possible that [NAME_30] had collected bush tucker or bush medicines from the [ADDRESS] land without her knowing. She had never heard of any such activities taking place.

[NAME_360] 202 Mr [NAME_362] has owned the [COMPANY_363] for three years. [ADDRESS] land abuts his property. He has also played golf at the [NAME_22] golf course which abuts the [ADDRESS] land. He has never seen [NAME_30] on the [ADDRESS] land or heard of [NAME_2] activities taking place on the [ADDRESS] land.

[NAME_364] 203 Mr [NAME_366] is the owner of [NAME_367] which abuts the [ADDRESS] land. He has been working on his premises for about 34 years. He used to run through the land in the 1980s about once or twice a week. He was also a director of the [NAME_22]. He has never seen or heard about any activities on the [ADDRESS] land involving Aboriginals. He has seen people using chainsaws to cut wood on the [ADDRESS] land but did not notice these people to be Aboriginals.

[NAME_368] 204 Mr [NAME_370] is the Chief Executive Officer of the [NAME_22] and had held that position for 9 years, moving to [NAME_22] for the job. He said that the golf club had existed since the 1930s with nine holes. The rear 9 holes were developed in the 1960s. The 13th hole abuts the [ADDRESS] land. He regularly played the golf course. He had never seen any activities taking place on the [ADDRESS] land and had not seen water on the [ADDRESS] land. He only went onto the [ADDRESS] land to retrieve golf balls. He was not aware of any information about [NAME_2] use of the [ADDRESS] land. 205 In oral evidence he said that he had probably only gone about 10 metres into the [ADDRESS] land to retrieve his golf ball. He believed there would be run-off of water onto the [ADDRESS] land. He agreed he would not know if activities were being carried out on the [ADDRESS] land because he could see into it to only a limited extent.

[NAME_371] [NAME_372] 206 [NAME_373] is the owner of [NAME_374] and lived at his work property from February 2019 until September 2019. That property adjoins the [ADDRESS] land. He is aware of rubbish dumping on the [ADDRESS] land. He fenced a section of another business which backs onto the [ADDRESS] land. In the time he has lived and worked on the property he has never seen people on the [ADDRESS] land or heard talk about the [ADDRESS] land being a place where any indigenous activities occur. He had heard of indigenous activities at places like Mystery Bay. 207 In oral evidence he agreed he had not been into the [ADDRESS] land. He would "not have a clue" if [NAME_30] were going onto the [ADDRESS] land for bush foods or bush medicines.

[NAME_375] 208 Mr [NAME_377] lives at [ADDRESS] about 150 to 200 metres from the junction of [ADDRESS] with the [ADDRESS] land. He was 85 years old in 2019. He had never seen an [NAME_2] person on the [ADDRESS] land and was not aware of any [NAME_2] person engaging in activities on the [ADDRESS] land. He had walked through the [ADDRESS] land on many occasions. The only other people he saw were school children walking along the perimeter of the [ADDRESS] land. 209 In oral evidence he said the back of his house had a view of the [ADDRESS] land which slopes quite steeply away to a dam outside of the [ADDRESS] land which collects run-off. He had heard the odd trail bike on the [ADDRESS] land but never seen another person on it during his walks. He agreed it was possible other people had been on the [ADDRESS] land but he had not seen them. From the back of his house he looked a few hundred metres into the [ADDRESS] land but could not see the whole of it. He used to walk on the [ADDRESS] land two to three times a week. He agreed there was a waterhole on the [ADDRESS] land which filled when it rained with run-off from the industrial area. He did not know of any freshwater source on the [ADDRESS] land.

[NAME_378] 210 Ms [NAME_64] works at [NAME_380] which is near the [ADDRESS] land. She used to attend the [COMPANY_363] which adjoins the [ADDRESS] land. She would also drive past the [ADDRESS] land. She had never seen or heard of any activities on the [ADDRESS] land involving [NAME_30] or seen or heard that the [ADDRESS] land is used for any purpose. She agreed in oral evidence that she was not focused on the [ADDRESS] land when she saw it and could not see very far into the bush. She had never seen anyone on the [ADDRESS] land but agreed it was certainly possible people walked on the [ADDRESS] land.

[NAME_381] 211 Mr [NAME_383] grew up in [NAME_22]. He is the owner of [NAME_384] which adjoins the [ADDRESS] land. He knows the [ADDRESS] land well. He used to walk through it to get to town for about 6 years when he was in high school 15 years ago. He still uses the [ADDRESS] land as a shortcut on occasions. The only [NAME_30] he had seen on the [ADDRESS] land were some school mates of his who also used it as a shortcut with him. He has never seen any [NAME_2] activities on the [ADDRESS] land. He said there is no permanent water source on the [ADDRESS] land, just some run-off. [ADDRESS] land has fire trails on it which he would use when he walked across the [ADDRESS] land. He was not aware of any camping on the [ADDRESS] land but knew of other [NAME_2] camp areas. 212 In oral evidence he said his business had abutted the [ADDRESS] land for about 3 years. [ADDRESS] land was behind his business to the north. From his workshop he could not see more than 20 to 30 metres and could only see further into the [ADDRESS] land when he was outside. He would not be paying attention to the [ADDRESS] land when working but had walked through it recently. He had never seen anyone on the [ADDRESS] land when he was on it but had seen schoolkids walking through it as a shortcut and people walking their dogs. There could have been joggers on the [ADDRESS] land which he had not seen.

[NAME_385] 213 [NAME_387] is the owner of [NAME_389] which adjoins the [ADDRESS] land. He had owned the joinery since about 1975. He has sometimes accessed the [ADDRESS] land when going to the golf course or when playing golf. He has never seen or heard of any [NAME_30] doing traditional activities on the [ADDRESS] land. He is not aware of any water source on the [ADDRESS] land. 214 In oral evidence [NAME_387] said he recalled a rubbish tip near the golf course. He would have morning tea out the side of his business and could see the [ADDRESS] land from there. He walked through the [ADDRESS] land sometimes as a shortcut. He considered the bush on the [ADDRESS] land to be a fire hazard.

[NAME_390] 215 [NAME_392], solicitor, made a number of affidavits annexing documents concerning the notification of [NAME_23]'s non-claimant application, as well as documents from the Eurobodalla Shire Council about sewage infrastructure on the [ADDRESS] land. [NAME_23] relied on those annexures to contend that [NAME_6] had been extinguished by the presence of a public work on the [ADDRESS] land, being the sewage infrastructure. The issue of partial extinguishment of [NAME_6] on the [ADDRESS] land is discussed in a separate section below.

THE RESPONDENTS' EVIDENCE 216 The second to fourteenth respondents called evidence from a number of [NAME_30].

[NAME_2] witnesses

[NAME_19] (nee [NAME_211]) 217 [NAME_393] is an applicant for [NAME_24]'s claim. She was born in Sydney in 1957 and as a child moved up and down the South Coast with her parents. She has relatives up and down the South Coast including in [NAME_22]. She is a [NAME_130] through her mother and her father is [NAME_394]. Her extended family told her stories about the South Coast and their connection to the area in and around the [ADDRESS] land. They camped in the bush opposite Mystery Bay, in [NAME_120]. Her father's [NAME_147] and cousins all lived at [NAME_120] and when they visited there the manager would make her father sign a book. They camped and fished all summer and did seasonal picking work. Her family were saw millers, seasonal pickers, fishermen and campers. 218 Based on the knowledge passed on to her by her mother and family [NAME_393] said that [NAME_127] country needed to be viewed through a "whole of landscape" approach which closely links the land, sand, water, trees, soil, shells, grasses, bush medicine, vegetables, fruits, animals and birds with their laws and customs. [NAME_397] had told her the area around the [ADDRESS] land had changed quite a bit and there used to be a waterway which went from the golf course to Corunna Lake which is around 5 kilometres to the south towards Mystery Bay. The area generally is where [NAME_398]'s family camped, fished, walked and later travelled by buggy to [NAME_120] to visit family. [NAME_398] and [NAME_393]'s mother told her about the area because they travelled collecting shells from many beaches all the way along the South Coast including [NAME_22] and had knowledge of the coastal pathways and places of significance. They used the shells to produce items of cultural significance and art works. 219 [NAME_393] said she had spoken to a number of other [NAME_400] whom she knew to be people with connection to the area in and around the [ADDRESS] land. She spoke to an elderly [NAME_2] man who is a member of [NAME_24]'s claim following a "Sorry Day" function at [NAME_22] who told her that all the land along the coast between Potato Point (about 25 kilometres north of [NAME_22]) and Mystery Bay is a part of the trails of the [NAME_126]. She did not ask this man his name as that would not have been appropriate on that occasion but he told her there were men's and women's places along that trail. The rest was unspoken due to cultural protocol but [NAME_393] understood him to be passing down knowledge of the [ADDRESS] land and surrounds for future reference and protection of the [ADDRESS] land. She said she was also passed knowledge by her [NAME_401] who was a senior man with knowledge of the area. She said that these discussions and stories, combined in context of the way oral history is handed down and taking into account responsibilities associated with it, she feels comfortable about voicing and has the obligation to assert the cultural values of the [ADDRESS] land. 220 [NAME_393] described that basket weaving was a part of her traditional laws and customs and she had been taught by her mother. Living in the bush and on country they had the opportunity to participate in a range of cultural practices including basket weaving, food gathering, fishing and diving. She explained that you have to have connection through your elders and ancestors to a particular bit of country as a stepping stone before you can get the materials you need for weaving and other crafts. Through her connection with her mother, her family have this connection to the land in and around [ADDRESS] which gave them the ability to gather materials for weaving as well as other crafts. 221 [NAME_393] said the [ADDRESS] land is an area a lot of [NAME_25] drive past and frequent today and in the past in order to avoid police stations in town on the main [ADDRESS]. This is before the old industrial area in [NAME_22] existed. They would sometimes pull up in the area including the area to the north of the golf course and wander around in the bush. She said she could only speak for her family but because of her family's connections to [NAME_24]'s claim area they can continue to access the [ADDRESS] land to practice their culture and future generations can nurture this knowledge which is not exclusive to her family but is inclusive of all other South Coast families. 222 Today they still undertake basket weaving on a regular basis but access to many traditional camp sites and natural materials are now restricted which is why it is important to hold on to area where reeds are still growing such as the [ADDRESS] land. Weaving is closely linked with various cultural protocols and diplomacy such as kinship ties, elders' transmission of knowledge, gender ties, speaking for country and passing down knowledge. For example, one person cannot copy another weaver's techniques without consent and you cannot just go and collect materials in someone else's backyard without consent from the right people who know that country. Weaving is not just about grasses; it's about connection to land and to each other. It is an unspoken part of their culture because they want to protect it. It is for these reasons and others that lands such as the [ADDRESS] land, which have known weaving materials, are very significant to them as [NAME_400] and their future generations.In oral evidence [NAME_393] confirmed that [NAME_171] was another applicant for [NAME_24]'s claim and an elder of the [NAME_126]. He is a cultural fisherman. His father was [NAME_174] who was also a renowned South Coast fisherman. [NAME_393] expected that his father had taught [NAME_172] about fishing and she knew [NAME_172] was an advocate for indigenous fishing rights. She also knew that [NAME_172] lived in [NAME_22] but not where he lived. She agreed that her knowledge of [NAME_22] was not street-specific. She did not accept that [NAME_171]'s knowledge about the area would be better than hers because each clan had different knowledge. She did agree he would know more about men's business concerning cultural activities in [NAME_22] than she would. She knew [NAME_402] was an applicant for [NAME_24]'s claim and that he lives in Moruya about a 34 minute drive from the [ADDRESS] land. [NAME_404] was also a fisherman. [NAME_107] was also an applicant for [NAME_24]'s claim but she did not know if she lived in [ADDRESS]. She was aware [NAME_107] was a knowledge holder of the region and would expect her mother, [NAME_122], had passed down knowledge to her. She agreed that Mystery Bay is a very important place for [NAME_121] people with traditional and contemporary camping sites. It was a known site of [NAME_2] camping in the past and today. She said each clan had specific stories about their connection to Mystery Bay, explaining: Some stories have different degrees of significance. Some are restricted specific to some families. They might be, as I said, women or men's business. They can't all just be shared like a storybook. 223 [NAME_393] agreed that it is common knowledge among [NAME_121] people on the South Coast that Mystery Bay is a place of significance. So too with [NAME_34] which has both men's and women's business areas. There are stories that relate to [NAME_34]. She agreed that these places where rituals and camping goes on are significant to [NAME_30] as the oral history and tangible and intangible culture connects the people to the country. Oral history is the knowledge that is "handed down from respected elders to parents and grandparents and – and then handed out to selected members of the family". She explained: … that's what our culture is – is founded on oral histories. We're not – we don't learn culture from books. We don't write our stories. We sing, dance and record them. We keep them alive in other ways. 224 She recalled the meeting on 3 and 4 March 2018 between [NAME_23] and the applicants for [NAME_24]'s claim. She disagreed with [NAME_31]'s evidence that the applicants did not say anything at the meeting about [NAME_6] in relation to the [ADDRESS] land. She said they did not object to what [NAME_23] proposed subject to a comprehensive cultural heritage assessment being conducted but there was definitely a discussion about [NAME_6] rights on that country. She denied that she had not known where the [ADDRESS] land was when a visit to the [ADDRESS] land with [NAME_31] was arranged. She said it was not like she had been past the [ADDRESS] land only once in her life as it was "part of where I am" as she was frequently on the South Coast. She agreed that when preparing her affidavit she understood it was important to try to identify every traditional use of the [ADDRESS] land. She said she had camped at the bottom of the [NAME_283] for the golf club in [NAME_75] but that was not in her affidavit. This was on what she described as the "outer boundary of the Isabel [Street] land" but she agreed it was not on the [ADDRESS] land. She said, however, her ancestors had "contacts" with the [ADDRESS] land. She then clarified that where she camped was at Bulengella Lake. She agreed that Mystery Bay and Bodalla were traditional camping areas. She did not agree that if there had been traditional camping areas in [NAME_22] she would have put that in her affidavit as she did not feel the need to name every traditional camping area. When asked why she had not included a map of where [NAME_397] had camped she said the map would have to be of the whole South Coast. She agreed that she did not assert that [NAME_397] collected shells from the [ADDRESS] land or that her father had cut wood from the [ADDRESS] land. 225 [NAME_393] said she would not name the elderly man who had spoken to her in her affidavit for cultural reasons. She was asked if she agreed that the [ADDRESS] land was not on the coast and answered: From an [NAME_2] lands, it's coastal land. The South Coast refers to [NAME_2] land; water and land. 10,000 years ago the Ice Age happened. The water came up. What are you – what are you actually saying? From a [NAME_95] man's point of view, you're saying Isabel is not coastal. But from an [NAME_2] ..... we say that's coastal land. … We're coastal people. We are salt water people. That's coastal land. 226 She agreed that the coast trail the elderly man had referred to was about 35 kilometres in length from Potato Point to Mystery Bay ([NAME_22] being between the two) which she described as "very small", continuing: Most ancestral trails and salt lines go from state to state. They are quite extensive. They can go up to the mountains. They can go interstate within that [NAME_95] man's borders. Our trails …are long. 227 She agreed she had been told that there were men's and women's places along this trail. When asked about [NAME_36] being a traditional men's initiation site she said: I don't discuss men's business. I'm an [NAME_2] woman. I know women's business stronger that – I prefer not to discuss men's business. 228 She agreed [NAME_34] is a women's mountain. She accepted that she did not say if the [ADDRESS] land was a men's or women's site but not that she would have said so if she knew, saying omissions did not mean that things did not exist. She said that the elderly man had been unwell for some time and wanted to ensure that the story he told her as a recognised elder was given to her family. She said: He freely gave it. He singled – he approached me and told me this story. He wanted to ensure that that knowledge from – from himself – he said, as a recognised elder, was – he wanted to make sure that that was kept going within – in our people. 229 [NAME_393] agreed that she did not use the [ADDRESS] land to gather resources but said she had relatives in town that do but agreed that was not mentioned in her affidavit. She agreed that she had not mentioned activities that occurred on the [ADDRESS] land but said from a cultural lands perspective, the [ADDRESS] land was part of the South Coast area. She said it was in an area linked to their cultural trails but people had tended to stay away from it in recent years due to an Independent Commission Against Corruption investigation in relation to the [ADDRESS] land and questions about who owned it. She said her ancestors had used the [ADDRESS] land, not her. She expanded on the information given to her by the elderly man saying: He recognised that weaving and he specifically came over and said, "Please make sure my story is told and I'm going to tell you this, where our old people got the grass from, right at the foothills of the golf course through that waterway", and he said that's where they used to camp. He just reaffirmed what my nan had always told me, because we never travelled through [NAME_22] on the [ADDRESS] because of the police station. We took the back road. We go down the [NAME_283], [NAME_75], up past the golf club, [ADDRESS] and come back out down the – on the flats, because many of [NAME_121]'s – we weren't the only ones. We didn't have good cars and we had big families, but they tried to avoid the attention of the police, as you know. Our people weren't welcome in towns. We were fringe dwellers and – so we camped outside of the main – like, the – the townships. It doesn't mean we didn't have cultural connection or association to those areas in those towns. But because of the protection ... welfare policies, we were made fringe dwellers.

[NAME_122] 230 [NAME_405] is a [NAME_261] who is an applicant for the [COMPANY_139]. She had affirmed an affidavit in support of [NAME_24]'s claim and an affidavit in this non-claimant application proceeding. She lives near the [ADDRESS] land on [ADDRESS]. 231 In her affidavit in support of [NAME_24]'s claim [NAME_405] said she was a [NAME_406] through her father and she was born in Bega, spent some time in [NAME_92] and came to [NAME_22] in year 10 at high school as she wanted to learn about her father's people. She has seven children and 29 grandchildren. She explained that one of [NAME_24]'s most important stories was about Mumbulla ([NAME_36]) [NAME_34]. She explained this dreamtime story. She said South Coast country goes from Wollongong to the Victorian border and the areas she was most connected with are the [NAME_163] and [NAME_120] areas including [NAME_170] which was her family's country. She explained that [NAME_170] was a women's place. She described [NAME_170] as a sacred place and explained her connection to that area. She said she protected that area. 232 [NAME_405] explained that if she was fishing outside her country she had to get permission from the elders of that area. She said [NAME_25] all knew each other's fishing areas and shared them but that they did not go to another person's area and take everything in one go. She said they all respected one another's space and only took what they needed to feed their families. 233 She said they knew who was a South Coast traditional owner because of their family connection to South Coast country; to be a South Coast person you needed to have ancestors who come from the area. She explained her family's totem and its significance to her. She referred to their language, [NAME_125], and why it was important for the language to be spoken. She explained that she did welcomes to country as a way of making sure that people do not take any bad spirits away with them. She explained the smoking ceremony using the cherry tree and the gum tree and its spiritual significance. She referred to ceremonial dace and singing and the use of ochre. She explained that she threw abalone shells back into the ocean to thank the spirits. She explained how people knew when it was the right time to fish and her fishing practices and the seafood that was part of her diet as well as other activities of hunting for kangaroos. She explained that her old people had told her only to take enough fish to feed her family and the community and nothing got wasted. She explained how information was passed on orally including about bush foods and bush medicines, camping, weaving and language. She explained how they bartered seafood with the Barkandji for boomerang knees and didgeridoos. She said: I'm a traditional owner of South Coast country, in particular for all of the area from Mystery Bay to [NAME_170]. My family and I have been using that land for many years in accordance with our own practices. We can use it in the ways we want to use it. 234 In her affidavit in this proceeding [NAME_405] said that the laws and customs she had described in her first affidavit apply to how they as [NAME_25] treat their country including the [ADDRESS] land. She said that because of those stories and their knowledge they have rights and obligations in respect of the [ADDRESS] land and have to protect it for future generations. 235 She said she knew the [ADDRESS] land very well because she lives in [ADDRESS] less than 100 metres from the [ADDRESS] land. Her daughter, [NAME_107], lives even closer to the [ADDRESS] land. She said that they would go to the [ADDRESS] land and cut and collect wood for their fire and for the making of artefacts. During those trips if they had the grandchildren with them they get a feed of bush tucker – the cherries from the native cherry tree. [NAME_405] said that the [ADDRESS] land has a freshwater creek running though it from south to north. Freshwater sources are very important to her people as ancestors would have used it for drinking and camped near it. From the [ADDRESS] land her ancestors would have walked to [NAME_120] and the [ADDRESS] land is one of the only freshwater sources close to the ocean. The next closest source is over 10 kilometres away at a site they call Two Sisters. As that is a fair distance her ancestors would have stopped to get water at the [ADDRESS] land. [ADDRESS] land is less than 500 metres from the coast at Glasshouse Rocks and just south of that is Handkerchief Beach and less than a kilometre away is Shark Point. She teaches her grandchildren, "to get a feed of mutton fish and get periwinkles and learn how to swim all along that coast". From the coast they fish from the rocks and collect bait. They teach their grandchildren how to fish as their ancestors have done and how they had been taught by their parents, grandparents and [NAME_137] grandparents. She said there are not many places on the coast where they can get freshwater so the [ADDRESS] land is very important to them and always has been. 236 She said there are seams of ochre on the [ADDRESS] land. They use ochre for many things in artworks and for ceremonies, and as a sunscreen. There is also charcoal on the [ADDRESS] land from burnt trees and that is very important to them as a medicine and for cleaning teeth. There are native cherry trees on the [ADDRESS] land which bloom in the summer. Her grandchildren love eating them. The Burrawang plant is on the [ADDRESS] land. Her mother taught her how to make flour from the Burrawang plant. She learnt to grind the seed into a pulp with rocks and put it into a dilly bag and then put the bag into a stream for two weeks to get the poison out and then you can use it to make damper. 237 She said that near the creek on the north-east side of the [ADDRESS] land there are heaps of reeds. The reeds only grow where there is freshwater and [NAME_25] need the reeds to make the dilly bags they use to carry food. [NAME_407] collects reeds around the [NAME_22] area and taught [NAME_405] and her daughter, [NAME_108], how to make dilly bags out of the reeds. They use the mud from the creeks, like the one on the [ADDRESS] land, to treat stings. Near the creek on [ADDRESS] there are a number of a certain type of tree they make spears from. Those trees only grow by the water where the ground is moist. Her husband, who is a member of the [COMPANY_139], makes spears. There are also ferns on the [ADDRESS] land which her mother had taught her could be used to treat stings and she still uses them for that purpose and has taught her children and grandchildren how to do this. 238 She said they had to protect these things as it was their responsibility to their kids and the next generations of [NAME_25] and without land and natural resources they could not hand down their knowledge. In oral evidence [NAME_405] agreed it was important for her in her first affidavit in support of [NAME_24]'s [NAME_6] claim to describe the rights and the interests of [NAME_24] fully and in detail and that she had legal assistance to prepare that affidavit. She agreed she had talked about the areas where she personally used land in accordance with traditional practices. She accepted that the area she said had particular significance to her, from Mystery Bay to [NAME_170] did not include [NAME_22] but said the whole [NAME_6] claim area was her country. She agreed, however, that some places were more important than others and she was more connected to some places than others and it would be fair to say Mystery Bay to [NAME_170] were such places. She said she was a protector of [NAME_170] and they would camp there for months at a time but Mystery Bay was also important. She agreed she had not mentioned the [ADDRESS] land in this first affidavit and had not said that [NAME_22] was a significant place. She said, however, she could speak for [NAME_22] as her apical ancestors come from [NAME_22]. 239 [NAME_405] agreed that she was not an applicant on the earlier Djiringanj claim. Of the named applicants on that claim she agreed that [NAME_93] was a knowledgeable person on traditional law and custom, as was [NAME_402] a fisherman but she could not speak for other families as it was disrespectful. She agreed she had moved to [NAME_22] in 2006 but that her daughter had lived there before her. 240 She agreed that in her second affidavit, the affidavit filed in this case, it was important to describe any asserted traditional use of the [ADDRESS] land in full detail and she had legal assistance in drafting that affidavit. She said: … when I refer to ancestors, I refer to my mother, my father, my grandfathers and my grandmothers, because they're all passed on, and my brothers and sisters. I'm the only one left out of my family. So when I refer to ancestors, that's what I refer to. 241 She agreed she had not given any time frame for when her ancestors would have been using the [ADDRESS] land. 242 She agreed that she had not drunk water from the [ADDRESS] land but said she would if she needed to do so. She agreed that freshwater was closer to the [ADDRESS] land than she had said in her affidavit at Shark Point no more than five kilometres away. She agreed that if people had hunted animals on the [ADDRESS] land it would not have been very hard to find them to give evidence. She agreed that she had not mentioned fishing at the [ADDRESS] land but referred to diving at Shark Point which she described as part of [NAME_22] coastline. She also referred to fishing at Little Lake which she described as "part of the [[ADDRESS]] land there" while accepting it was not on the [ADDRESS] land. She agreed that the distance from the [ADDRESS] land to Glasshouse Rocks was 1.2 kilometres and not 500 metres as she had said. She disagreed that when she was talking about collecting wood and native cherries from the [ADDRESS] land she was saying that she had carried out these activities only in 2006, saying they still did it today. She denied by saying that "we would go" to do these things on the [ADDRESS] land in her affidavit she meant that they did so only in the past. She said: It's just a – it's a way of [NAME_2] speaking. It's broken English to you because I'm [NAME_2]. … …we still collect firewood there. We still get the cherries. We practice our stuff today with our grandchildren. 243 She agreed that she had not said in her affidavit that anyone collects reeds from the [ADDRESS] land. When it was put to her that she had not said she used the mud from the [ADDRESS] land she said: The reason why I've stated what I've stated is because all of the stuff that I collect is on [ADDRESS]. That's close to me and then I don't got to get in a car and drive down the road to find some other, you know, bush medicines or bush tucker. That's the reason why I have made this statement. 244 It was put to her that as she had said only that there were certain types of trees spears were made from on the [ADDRESS] land she was not saying that they made spears from the trees on the [ADDRESS] land as her second affidavit was speaking hypothetically. She said: No. Because we collect the spears from the freshwater creek. … Because they're saplings – [NAME_140] – and the only place that they're collected is near the freshwater. … Because there is freshwater there. Because I'm telling you that's the only place where you can get them specific spears… There is no running water on the land but there is freshwater there… It's freshwater from the rain. … Well, we still practice it today. I told you that. We do utilise that land at [ADDRESS] for those specific saplings. 245 She also said: Well, I do go to [ADDRESS] and get the ochre, yes. 246 She agreed that she had specifically said in her first affidavit that she got ochre at [NAME_170] but did not accept that this meant she did not get ochre from the [ADDRESS] land. This exchange occurred: I'm suggesting the reason you did not put it in your first affidavit is because you do not get ochre at [ADDRESS]. Is that right or wrong? No, that's wrong. So why did you not put it in the first affidavit if you were trying to put all the detail of your traditional activities that are relevant to the [NAME_256] in the affidavit? I can't answer your question, because I think you're confused. Because my first statement is not about the native – it's about the [NAME_6] claim on the whole South Coast. … The reason you did not put, in your first affidavit, that you gather ochre at [ADDRESS] is because you don't actually do it. Do you agree with that? No, I don't agree with that. But you did put things that were important to you relating to traditional law and customs, you say in the first affidavit, didn't you? I'm talking about the [NAME_6] – the whole [NAME_6] claim. 247 She did not accept that her second affidavit did not say she used charcoal from the [ADDRESS] land insisting that she did in fact use charcoal from that land. She also said that she collected Burrawang from the [ADDRESS] land in this exchange: [NAME_408]: I'm suggesting that if you did use Burrawang on the [ADDRESS] land you would have said so, wouldn't you? And I do state that I do use it. … There – I will read the words: There's also a plant we call Burrawang on [ADDRESS]. Annexed to this affidavit and marked is a photo in front of a burnt Burrawang. You would agree that, there, you have not said that you use Burrawang on [ADDRESS], wouldn't you? I'm – I'm – I'm stating – I'm saying that I know how to use that plant. It was handed down to me from my mother 248 She agreed that she had not described the [ADDRESS] land as sacred as she had for [NAME_170]. She accepted that there was a history of dumping rubbish on the [ADDRESS] land. She said, however, that the bush medicines and bush tucker she spoke about were sacred to her. She agreed that bush medicines grew all over the South Coast. She agreed that her second affidavit was the first time she had ever voiced her concerns about the [ADDRESS] land.

[NAME_409] 249 [NAME_412] affirmed an affidavit in support of [NAME_24]'s [NAME_6] claim which was read as evidence in this proceeding. [NAME_412] said he was a South Coast man who was authorised to bring the application. His country was around the Moruya area and Batemans Bay. He was born in 1956 in Sydney. He was a South Coast person through his mother. He was taken back to Batemans Bay when he was three and grew up there. He recalled that his family and others all travelled up and down the South Coast for work, particularly fishing and diving. He described sites in the claim area associated with Dreamtime stories. He described South Coast country as extending from Bundeena to Eden and that his family's closest connection was with the area around Batemans Bay down to the [NAME_22]. He was taught the most about this area from his old people. He described his elders and what they had taught him and how he now taught his children what he had been taught. 250 He said that people are [NAME_25] because of their bloodline. They are connected to the country through their ancestors having come from that country. He described [NAME_121] beliefs including about looking after country. He described the rules about marriage. He described the system for totems and their significance. He said he had been taught about men's initiation sites. He described their language and their burial practices and their beliefs about spirits. He described ceremonies, and practices of hunting and gathering and preparing food. He described traditional whaling. He described the consequences if a person broke the lore. He described getting bush tucker. In oral evidence [NAME_412] agreed he did not mention the [ADDRESS] land in his affidavit. He said that his affidavit related to the whole claim area which included that land. He agreed that [NAME_402] and [NAME_171] were fishermen, living in [NAME_22] respectively, both being much closer to the [ADDRESS] land than [NAME_412]'s home in Batehaven. He said he thought [NAME_171] would know about cultural fishing areas in [NAME_22]. He agreed that his affidavit did not mention traditional sites or activities in [NAME_22]. He agreed that he had said in the 1950s, old [NAME_30] living on the South Coast could not pass on [NAME_121] culture to other [NAME_30]. He said he thought that people were able to hunt and gather but not to hold ceremonies such as corroborees. He also said that they were not allowed traditional dress as "they were trying to turn them into [NAME_95] people". He said this was fairly widespread across the South Coast saying: I think it was fairly widespread. They put us all on a mission. They put all my ancestors on a mission, mate, and told them not to speak their language. Told them they've got to do this, and they've got to do that. So you know, they were – they were directed not to even speak about their culture. They got into trouble for it. 251 He agreed that he had uncles who were imprisoned for speaking [NAME_125] and that people were taken from all over the South Coast and put in missions the main one being at [NAME_120]. 252 He said he would describe his country as the [NAME_159] country which goes down past [NAME_22] and that Moruya and Batemans Bay are part of his country. He agreed the people on the boards for [NAME_35] were knowledge holders for that region and were appointed because of the quality of their knowledge for that area. He agreed [NAME_93] and [NAME_31] were knowledge holders, as well as [NAME_99], [NAME_105], [NAME_107], and [NAME_110]. This evidence was given: Then the chairperson asked members of the meeting if they had any knowledge relating to the site, but they could only remember the property or area as the local tip and could not recall any use for cultural purposes by local [NAME_30] and did not know of any cultural or spiritual importance of the land. You would agree that this is knowledgeable elders of the region giving their view of the land? Yes, but I would question what was there before the tip. Well, you would agree that this is the view that they've given? That would be their view. Yes. If there was something that someone knew about that in a significant sense, you would have expected that they would have raised it, wouldn't you? You would.

[NAME_164] 253 [NAME_166] is a member of the [COMPANY_139] and is the chair of the [NAME_2]. He said he knows the [ADDRESS] land very well and can speak for that land as he was born and bred on the surrounding country, as were his ancestors and he has camped, hunted and gathered throughout that area all his life. 254 [NAME_166] said his connection to [NAME_24] comes from both his mother and father. His mother's father was a South Coast man born at [NAME_120] and lived there nearly all his life. His father's parents were also both [NAME_25]. [NAME_166] was born at Milton and lived in Ulladulla with his father's parents. They lived near other families and fished with them. This is where he began to learn hunting and gathering of salt water food, what to eat and what to avoid. When he was 4 or 5 they moved to [NAME_120] mission to live with his mother's father [NAME_413] ([NAME_296]). When he was 12 they moved to Stony Creek near [NAME_22] but he would go back and stay with [NAME_296]. His grandparents taught him about bush foods they could and could not eat. They moved a lot as his father would follow work at saw mills and bean picking so they travelled all up and down the South Coast from Bega to [NAME_136]. His mother also wanted to make sure they could not be taken away and kept them safe by moving around. As [NAME_120] was a designated [NAME_2] mission it was a safe place for them to be. He had always stayed in the South Coast area as that is his traditional country. They always stayed close to the coast as that is their main source of food. 255 His uncles from his mother's side and [NAME_296] would often walk from [NAME_120] to [NAME_22] to access hunting and fishing spots along the way, particularly during summer. He can still point out the places they would stop and hunt and gather food. One place was Mystery Bay which is sacred ground. He was told where sacred ground was and burial sites and middens along that trail. He would join these men on their trips from when he was around 6 or 7 years old. As they travelled they camped at various spots along the way including the [ADDRESS] land. The walk would take two to three days. They would do these trips to collect seafood which they would take back to [NAME_120]. They would regularly visit Glasshouse Rocks on these trips which was and still is a very important place for catching seafood. He was shown how to collect lobsters and other seafood there. He said they also got seafood from [NAME_415] used to put his nets down there catching mainly mullet and bream. They also used to spear fish there and mostly got prawns from there because it was clean and clear and not too deep. Over at Forsters Bay they would get bimbulas and oysters. 256 He said he knew the [ADDRESS] land very well because he had camped there with his family on these trips at least three or four times but his elders would have done it much more than that. There was freshwater to the north and south sides of the [ADDRESS] land they would access. When they were camping on the [ADDRESS] land they were taught lore and respect for it. They talked about men's business, the spirit world and the [NAME_416] or kadiche man. [NAME_416] is the one [NAME_95] men call the "bone pointer" but they knew they were safe from his because they were not breaking the lore. They were taught about his powers and if you break the lore the [NAME_416] will get you. 257 During those times [NAME_30] were not allowed in the towns such as [NAME_22] without permits so they would always camp on the outskirts in the bushland at the [ADDRESS] land. The publican at the time used to know some of the elders and sold them alcohol at the back of the hotel which is on the top of the [NAME_283] in [NAME_22]. If the weather got too heavy they would retreat back into the bush at the [ADDRESS] land to get cover from the rain and the winds. There would often be old fellas from [NAME_120] who would also be camping at the [ADDRESS] land. They would typically go into town to get something to drink and then retreat back to the camp on the outskirts. Because it was close to Forsters Bay, Little Lake and Glasshouse Rocks the [ADDRESS] land was their main camping spot when they went to [NAME_22] and provided good shelter. He also remembered that [NAME_415] used to take bark from certain trees on the [ADDRESS] land which he would boil and then use the water to cure his nets which would dye them and stop them rotting. He remembered being told by [NAME_222] and others that the bushland at [ADDRESS] was somewhere their elders had camped and was a traditional camping area. As he got older he realised the significance of the [ADDRESS] land as a place where their ancestors had camped. The fact their old people have always camped there makes it an important place for them. It makes sense – the lakes in the area and the coast very close by give them easy access to seafood. 258 [NAME_166] said he remembered when the tip went in at [ADDRESS] when he was 13 or 14 and how his [NAME_296] and [NAME_222] were angry about them damaging their country. He said the [ADDRESS] land is still an important place for [NAME_25] as it is traditional camping site and hunting and gathering area which should be left as bushland out of respect for their ancestors' connection to that area. 259 [NAME_166] said their walks to [NAME_22] solved the problem of limited access to [NAME_95] folks' food as they were not welcome in shops and only his mother's mother, [NAME_417], was allowed in the Tilba shop. Not even [NAME_296] was allowed. They often collected bush tucker on their walks. [ADDRESS] land has Wondarma (a fruit from a vine), bush cherries and wattle gum which they ate as children like a bush lolly. There is also bush medicine around the [ADDRESS] land which he is reluctant to expose to [NAME_95] men as they will come in to exploit it. 260 When he was growing up [NAME_222], the eldest son of [NAME_296], was his main cultural teacher. He taught him hunting and gathering and cultural laws. He was taught respect for animals and marine life. He had five uncles on his Mum's side who taught him a lot of the traditions of his people as he lived with them at [NAME_120], travelled with them and saw them frequently. They taught him how to spear fish and prawns. He still spears fish today at 66 years of age. By custom women tend to go for pippies, conks, periwinkles and things in pools on the edge of the ocean. The women also tend to use hand lines and it is rarer for them to dive for seafood. It has always been divided like that traditionally. 261 He was taught by elders it is fine to go to midden sites of which there are many. It is acceptable to go there and sit and throw your stuff down after you have cooked your seafood. There are hundreds if not thousands of significant sites in [NAME_24]'s claim area including in and around the [ADDRESS] land. Some sites are registered but others they prefer not to disclose in order to protect those sites. He was also taught not to go into some areas, like burial sites, without permission. Their elders taught them where not to go. The reason not to go into an area is that it is a traditional burial ground or initiation ground. There are also sacred sites like painting on rocks in caves or marked trees known as scarred trees. They were not allowed to go to some specific areas where scarred trees are. He has taught his children not to go to these places. Spiritual beings reside in these places. You could bring bad luck on your family by visiting. It could bring devastation to your family or yourself. These areas are still watched and monitored by the keepers of these areas who are [NAME_25] with knowledge of these sites which is kept very secret because of fear of damage which "would be what [NAME_95] fellas would call sacrilege".In oral evidence [NAME_166] agreed he was born in Milton which is a drive of about one hour and fifty minutes north from [NAME_22]. He said to him the entire South Coast is the surrounding area to the [ADDRESS] land. He confirmed he then lived in Ulladulla which is near to Milton. Then he moved to [NAME_120] at 5 or 6 which is about twenty kilometres south of [NAME_22]. He lived there until he was 12. He moved to Stony Creek south of Bodalla but would return to [NAME_120]. He had never lived in [NAME_22]. He agreed that none of his ancestors had been born or lived in [NAME_22] except his father's brother, [NAME_308]. He agreed that he had not referred in his affidavit to anyone who was still alive who had the experiences he talked about at the [ADDRESS] land and Little Lake. He gave evidence in this exchange: Now, would you – you would accept, wouldn't you, that if you were camping there while you were a child, obviously, that, if it was important, you would have shared the knowledge of those sites on with people, wouldn't you? I did and I have. I still do. Right. But you would accept that no one who you shared that with has come forward to give evidence in this case, have they? I don't know. I'm not sure of that, [NAME_408]. 262 [NAME_166] did not accept [NAME_59] was a person with knowledge of cultural fishing around [NAME_22] as he did not come to the South Coast until the 1980s. He also said: Unfortunately, [NAME_418] [sic [NAME_339]] wasn't around in my younger years, in my period. [NAME_418] is a descendant of my cousin, who had passed away, and [NAME_418], he would not have known of what had happened in that area, and even [NAME_120], for that matter. 263 He agreed, however, that he had shared quite a lot of knowledge with [NAME_342] but continued: And as a cultural man, sometimes you cannot really, really sit down one person and tell them the whole lot about the South Coast. There's too much area to cover, and there's so much detail to go in there, spiritually and law, and I – if I missed parts with [NAME_418], he never asked me about some of those issues, and I do apologise to him that there are some points in our history that I did not bring to his attention, and that's out of old age, and I do apologise to him personally for that. 264 This exchange then occurred: Well, so you're aware, [NAME_419], his daughter, has given evidence and she says she's never heard of any of these – any cultural activities at all in the Little Lake or [ADDRESS] area, so you're aware. Same with [NAME_185] has also given evidence, and he says that there's no significant sites and it's not a – no [NAME_121] activities, to his knowledge, ever occurred on [ADDRESS] area. You would accept, wouldn't you, that it's likely that [NAME_305] would have passed down his knowledge of that to his children, wouldn't he – wouldn't you? Well, I could look at it from another point of view, [NAME_408], that it's lore that he may have been dealing with. And men's lore, you don't pass it on to females. Men's lore in regards to the other cousin, he's a [NAME_194] man from [NAME_92], and he's not allowed on certain lands, and I would suggest that [NAME_297] warned him not to go near [ADDRESS] land because it is significant. It's a spiritual land, and that's one of the reasons why I suggest that [NAME_420] [sic [NAME_168]] would have told some of his boys not to go on that land as [NAME_194] people. You can't do that, l-o-r-e, in another country. Well, you would accept that if he told him not to go on that land then he would know that there's something significant on that land to not go on there, wouldn't you? He would know nothing about the land other than he had been forbidden by [NAME_420] [sic [NAME_168]]. L-o-r-e, don't go into that land. Yes. He ? And as a [NAME_194] boy Yes? he wouldn't have been allowed on it. So you would accept that if he had been told that he is not allowed on that land, he would know that it's an important place, but he wouldn't know the detail of what makes it important. Correct? Matter of interpretation. [NAME_420] [sic [NAME_168]] gave him all the details, he would have come to a decision. Again, lore, he wouldn't want anything to do with it. So that's – it's – again, it's – it's handing our knowledge and lore about certain land, and I – I would suggest that [NAME_420] [sic [NAME_168]] would have told him not to go there or even speak of it, for that matter, because it's, again, spiritual. And also, the ..... is the – is the ..... man. You break the law, you pay the consequences of that, and I have witnessed that myself. It sounds like you've confirmed that if he told him not to go there, it's because it's spiritual, so he would at least know he's not allowed to go there, and the reason is it's an important place that he is not allowed to go to. That's what I understood that you've said? That is correct. But then, lore says he cannot even talk of that land or speak of it, because it's not his. It's not his country. Yes. But he would have to know ? They're not allowed to He would have to know that he's not allowed to go there. Can I ask you, you're aware that [NAME_185] lived in the [NAME_22] area for roughly 60 years. Do you know that? I do know that. Yes. And you're aware that another one of [NAME_422]'s children is [NAME_171]? That's correct. You would consider him a [NAME_127] man, wouldn't you? Again, there's a – stepbrothers. [NAME_172]'s got bloodline to the country. Yes. I'm just talking about [NAME_172]? [NAME_186] doesn't. Just talking about [NAME_172] now? Yes. So you would agree that [NAME_172] is a [NAME_127] man, wouldn't you? I certainly do. So you would agree that it's – you would expect that [NAME_423] [sic - [NAME_168]] [NAME_169] would have passed down knowledge about fishing and camping areas to [NAME_172], wouldn't you? I would suggest so. Yes. So you would expect that if this area was significant, [NAME_172] would know about it, wouldn't you? Yes. Okay. Just a moment. I'm just – now, you're a cousin of the late [NAME_424]. Is that correct? That's correct. Am I right that he passed away roughly a year ago? Correct. Yes. You would be aware that he was one of the named applicant members of the [NAME_256]. Do you know that? That's correct. Now, you would expect – you – did you share your knowledge about this with him? He did know. I spoke to him about it on numerous occasions. He has asked questions not only about that particular area. He asked a lot of questions about every area on the South Coast that I knew of. I shared the lot with him. Yes. I did. But are you aware that he never gave any evidence on this issue in this case? I'm not aware that he has given any evidence at all because he has Right? passed away. Whether he passed it on the evidence in the past Yes? I'm not sure. 265 When asked, he doubted that Smyth's Oval was used as a camping area as he had never been told that. He also doubted that [ADDRESS] had been used for camping. He said that if [NAME_274] had camped there it would not have been a hunting and gathering camp, that close to the town. He agreed [NAME_346] was a knowledge holder but still did not accept that there was camping on Smyth's Oval. He said the [ADDRESS] land was the main camping spot in [NAME_22]. He said: What historical records do you have? I mean, we didn't write historical records. It was all verbal. It was all language and, again, one of the reasons why the old fellows, my grandfather and [NAME_222] stopped there because there was lots of food. There was fish. There are prawns and over in [NAME_221] there was ..... oysters and – and one of the main things they did camp there for too as well was to get access to flagon of wine at Lynch's Hotel on top of the [NAME_283] and they did go there and they bought their bottle of wine at the back of the hotel and they brought it back to [ADDRESS] and drank that wine and Yes? It will stay with me forever what they did. 266 He rejected the proposition that he was confused about where they had camped, hunted and gathered but did say a lot of knowledge had passed with people who had died. He said he had described Glasshouse Rocks as about one kilometre south of the [ADDRESS] land as that is how he thought of it back then. He said: I'm relying – I'm not lying – on my knowledge back then. We never used the word "Google" and we never used the word "east-west." What we did use was knowledge of where land markings are. We did not use instruments – modern-day instruments to identify certain places. We used sight. And as sight- as it is, I will always remember the old fellows would say – you know, people would say "It's south." Same as you looking up towards [NAME_22]. You would say "north." This means very little to me, [NAME_408], to be quite honest. I could only tell you from what I've been taught. Looking at a map – Google – I could have corrected it, had I done it. But I'm only going by what I've been taught and told. And, to me, that is still south. To me. 267 He said he had speared prawns in Little Lake and hunted and gathered from all their camp sites on the [ADDRESS] land. He said he was still confused as to how Little Lake had been acquired for the golf course. This exchange occurred: Would you accept that them acquiring it interfered with any traditional activities in that area? It certainly did. It virtually put a stop to the elders, myself and my uncles from visiting that land, along with the tip that was, eventually, put on that land and, also, sewerage that was put on that land. But "that land" do you mean Isabel land? I'm talking about Isabel land. 268 He gave this evidence: …we certainly got a lot of our food off [ADDRESS]. Food and medicine. From the Burrawang through to the gum tree, to those cherry trees. And, again, the abundance of that food is still on that land. 269 [NAME_166] agreed he had described Mystery Bay as "sacred", Glasshouse Rocks as "very important" and the [ADDRESS] land as "important". He said he was using his [NAME_2] language and that Mystery Bay was a burial site where it was forbidden for some people to go without authority of the elders and the [ADDRESS] land was a learning site. He said: [ADDRESS] was a learning site for me. I was told law. I was told how to practice it, how to hunt and gather food from that [ADDRESS] and I still maintain that to this day, that it is a very – land of significance to us. 270 He agreed he had not referred to hunting on the [ADDRESS] land. He also agreed that he had not produced evidence that the [ADDRESS] land was a registered site of significance but said it was a camp site and a learning site. He said not all sites were registered and: There are things we do not share to non-Indigenous peoples because of the reasons of what has happened in the past. And so, yes, there are sites there but we do not speak of it at times and we do not want to share it because we know what will happen. And it's happened that many times that, as an elder in my community, I know of many, many, many sites, [NAME_408]. I will not declare to the [NAME_4] public because I'm scared that they will be damaged and I know – I've witnessed, I've seen what happened to sites. They've been spray-painted, rocks thrown at it, walls broken, trees hit with axe, spray-painted. So I'm reluctant, at times, to expose those sites to the [NAME_4] public. 271 He rejected the proposition that there was no fresh water on the [ADDRESS] land saying he knew exactly where the main watering holes on that land were and that they always had fresh water there, and that they utilised the gullies on the land for fresh water to drink and bathe.

Non-[NAME_2] witnesses

[NAME_426] 272 [NAME_429] is a solicitor with [NAME_18] responsible for the day-to-day conduct of [NAME_24]'s [NAME_6] claim. In his affidavit he explained that [NAME_24]'s claim was filed on 3 August 2017. The claim was accepted for registration by the Registrar of the National [NAME_6] Tribunal on 3 January 2017. In oral evidence [NAME_429] did not accept that there was no correspondence identifying any specific [NAME_6] rights and interests in the [ADDRESS] land, explaining: Well, there's a registered [NAME_6] claim over the area. It – I wouldn't have expected there to be correspondence asserting certain rights and interests. I mean, the whole – that meeting was called because our clients represented [NAME_24] who asserted [NAME_6] rights and interests in the claim area, which included [ADDRESS], so that – the whole premise of that meeting was because our clients were asserting [NAME_6] in that area. … … but the whole premise of the discussion was that, because our clients had a registered [NAME_6] claim, they were asserting rights and interests in that area. I don't have – I think it would have been somewhat redundant to explain that in a letter, but… … …the state of affairs at that time and at now is that they have a registered claim there. The context of these discussions was you had two [NAME_2] parties. I had – I won't go into my instructions other than to say I was told to treat the other party with respect and with a view that they were an [NAME_2] party. If this was a property developer, a non-Indigenous property developer, it would be more likely that I would say more clearly that they assert [NAME_6] rights and interests in the area. But as it was, we were corresponding with your client who, in fact, is also members – many of whom are members of the claim who are also asserting [NAME_6] rights and interests in the area. So the context of this was we – I was instructed to at least attempt to find a non-litigated resolution to this matter. So, sort of – it's – I think it's clear in my correspondence that that was what we were trying to do. We weren't trying to engage in legal points, as I say in my letter and to date, none of the applicant – no one I've ever spoken to has – well, sorry. None of the applicant have ever resiled or conceded that they don't assert and hold [NAME_6] rights in that area. This seemed to be somewhat – it seemed like, to me, a bit of an obvious point and not – it wasn't going to the point of the – of trying to resolve this dispute. And it's – I should point out the applicant just represent a very large claim group. The applicant don't hold all the [NAME_6] – sorry, all the knowledge about all the areas. They represent the broader claim group, so that was the – yes. Anyway… 273 [NAME_429] agreed that he had not referred to [NAME_6] rights and interests in the notice advertising the meeting of the [COMPANY_139] to consider, amongst other things, [NAME_23]'s non-claimant application. He said: We're writing to a claim group who are all authorised to claim, asserting [NAME_6] in that land. Now, I wouldn't have thought that I would put in that. You know, it's their connection, and their rights and interest, and they know about that. It's – it wouldn't be for me to say, "You hold," any more than to say, "You have a registered claim over that area." It's not for me to say, "You have – you assert specific rights." I just don't think that's a relevant consideration, and it's not something I would normally put in a notice. The notice is intended to give as much information as is necessary for people reading it to know whether or not it's a meeting that they should intend, or they want to attend. And I don't think a statement like the one you're referring to would – is needed for that. … … they know the land a lot better than I do. It's not for me to inform them about specific connection or association or knowledge of that land. That's what they bring. I don't tell them, as a lawyer. I tell them, "These are your rights, this is what has been asserted, and this is what was contemplated at the meeting, and this is what it will mean from a legal perspective." 274 [NAME_429] agreed that [NAME_171] was at the claim authorisation meeting and other meetings and said they had spoken to all members of the applicant group as to whether they wished to put on evidence. [NAME_429] also confirmed that [NAME_171] was a member of [NAME_23] at the time he was asked whether he wished to give evidence in this proceeding.

[NAME_430] 275 [NAME_433] is the principal solicitor of [NAME_18]. 276 [NAME_433] referred to a letter attached to [NAME_23]'s non-claimant application from the Department of Primary Industry, Lands dated 15 October 2015 which states that from its investigation the Department had concluded that there are no acts that have occurred from Sch 1 of the NTA that would have extinguished [NAME_6]. 277 [NAME_433] also explained the process by which [NAME_18] decides what assistance it can provide to [NAME_2] persons about [NAME_6] matters. It must be demonstrated that a [NAME_6] claim satisfies a threshold test of legal merit before it will be considered for assistance. Legal merit will be considered to have been demonstrated if there is no obvious legal impediment to the bringing of a [NAME_6] claim, it can be shown that the [NAME_6] claim group constitutes a cohesive identifiable group which continues to acknowledge traditional laws and customs and it can be shown that the [NAME_6] claim group has a continuing connection to the land and waters they wish to claim. [NAME_18] formed the view that [NAME_24]'s claim satisfied these merit criteria, with the assistance of [NAME_433] and [NAME_434], [NAME_18] Manager Research. 278 In oral evidence [NAME_433] did not dispute that [NAME_24]'s claim was over 1.68 million hectares of land. No comprehensive tenure searching had yet been carried out. The claim asserts that: The applicant did not yet have the details of any vacant Crown land occupied by the members of the [NAME_6] claim group. 279 [NAME_433] said: The evidence provided in the form 1 is aimed at the prima facie considerations of the registration test. And in meeting what's necessary for the application to be registered, it's then the case that applicants go through the [NAME_5] state government's credible evidence assessment process. And in the course of that, usually provide expert reports and a larger number of affidavits from men and women and from elders and [NAME_140] people and from a range of – of different areas to account for the size and the area of the claim and having evidence relevant to all of those areas. 280 [NAME_433], like [NAME_429], explained that not everything could be put in a notice of a meeting to consider [NAME_23]'s non-claimant application. She said: • What's outlined there is specifically a description of the heads of agreement the people are being asked to consider. • I mean, the notice goes to [NAME_6] claimants, South Coast [P]eople who assert [NAME_6], and they're well aware of the [NAME_6] claim because they authorised it. And in doing so, they're asserting that they hold [NAME_6] in – in all of the area that's subject to the application. • I've had an opportunity to read that and I would agree, it doesn't reference any specific [NAME_6] rights or interests. 281 [NAME_433] explained: … I couldn't say to you that we have comprehensive evidence about each and every parcel across the area. I'm aware, obviously, that this matter itself has resulted in specific information being given and views provided in relation to this specific parcel. 282 This exchange occurred: Well, you've already agreed with me, I believe, that that is the case because you've accepted that you don't have all the knowledge about occupation of all the area. And if that was the case, you would accept, wouldn't you, that it was unnecessary to file any evidence in this case by [NAME_435] for [NAME_24] because it would have been sufficient to rely on the form 1, wouldn't it? I don't accept as a matter of law that occupation is a necessary requirement to establish that [NAME_6] exists in an area. 283 This was followed by this exchange: Well, I'm suggesting that when you don't have information about all of the parcels, parcel by parcel, of the 1.68 million hectares, it's possible that you don't know everything about extinguishment and it's possible that you don't know everything about loss of connection? Look, I would accept that you can say that we don't know every single thing about connection, but, as I said in my answer, we did have to – [NAME_24] did have to satisfy that they had legal merit in order for [NAME_435] to provide assistance, and we've had engagement over a large number of other matters, including defence of South Coast fisheries prosecutions and localised education workshops dating back, you know, more than a decade. And so I think there is a lot more information in relation to connection, but you specifically said occupation and I don't accept at all that occupation is a requirement to establish [NAME_6]. 284 [NAME_433] also sad this about knowledge within [NAME_2] communities: I would say that it's very hard to make generalisations about people's knowledge. It can obviously vary between circumstances in families and information that's shared in some families or by some elders with some individuals, so you certainly see modes of transfer of knowledge that can be between men and that can be between women. Sometimes there can be particular individuals in families who are chosen by an elder to receive knowledge. Sometimes, in fact, knowledge can be handed to a person who may be younger than an elder or, you know, that terminology commonly referred to as an elder but where they're considered to be someone who can safeguard information or is capable of carrying out an elder's wishes, so it may be perhaps that people who have knowledge may not necessarily be an elder, but may have been entrusted with that information, and I think there are many variables about people who hold knowledge. I think certainly someone's age means that they have had more people that they've had contact with in the course of their life and often have been – had, you know, personalised contact with people who are – were alive at an earlier point in time, so certainly elders have a special place in terms of the knowledge they hold, but I don't think that's the sole category.

[NAME_436] 285 [NAME_439] is a Senior Research Historian formerly employed by [NAME_18]. 286 [NAME_439] provided an affidavit which explained the descent of [NAME_122] from apical ancestors of [NAME_24]'s claim and the connection of those ancestors with the lands and waters in and around [NAME_22] in the mid to late 1800s. 287 [NAME_439] also prepared an historical report in response to four questions as follows: (a) what does the historical record establish is the approximate date of 'effective sovereignty' in the Non-claimant Application Area? (b) does the historical record establish or provide evidence that the Non-claimant Application Area was used or occupied by [NAME_30] at the time of 'effective sovereignty' and were they likely to be those people contained in the claim group description contained at Appendix 4 of this brief? (c) does the historical record establish or provide evidence that. From the time of 'effective sovereignty' in the Non-claimant Application Area, there were any: (i) apical ancestors referred to in the claim group description contained at Appendix 4 of this brief; (ii) or any other [NAME_30]; who were living in [NAME_24]'s Application area and used or occupied the Non-claimant Application Area. (d) give an account of the settlement of the Non-claimant Application Area by non-[NAME_30], including the nature of their use or occupation or the same and their impacts on [NAME_30] in the area. 288 [NAME_439] explained in her report that she had insufficient time to answer question (d). 289 The salient aspects of [NAME_439]'s report included: (1) Until 1831 the [NAME_2] inhabitants of the [NAME_1] area were undisturbed by the expanding settlement to the north. (2) [NAME_1] first experienced [NAME_95] settlement in the 1840s at which time there were a large number of Aboriginals observed in the area. (3) Even by the 1850s there was not extensive [NAME_95] settlement in the [NAME_1] area. Whites were hugely outnumbered by the hundreds of [NAME_30] in the area. (4) Effective sovereignty of the [NAME_1] area did not occur until the late 1860s into the 1870s. (5) [NAME_30], who may be inferred to be [NAME_25], have continued to use land in and around the [NAME_22] area. 290 [NAME_439] does not give evidence about any specific connection - be it by occupation, use, presence of artefacts, story, myth or spiritual dimension - between [NAME_25] and the [ADDRESS] land.

[NAME_23]'S SUBMISSIONS

Introduction 291 [NAME_23] contended that it should be found that there is no [NAME_6] in relation to the [ADDRESS] land for six reasons: (1) the resolutions conveying an absence of [NAME_6] in the land; (2) the quantity and quality of primary evidence from [NAME_2] knowledge holders supporting the same conclusion; (3) the supporting evidence of non-[NAME_2] witnesses; (4) factors of [NAME_95] settlement and associated dispossession; (5) the weakness of the South Coast's People's evidence; and (6) the absence of evidence. 292 [NAME_23] noted that there was no dispute about the power to make the order it sought and compliance with all procedural requirements, the non-claimant application having been notified from 3 May to 2 August 2017. No one applied to be joined during the notice period. [NAME_18] was joined as a respondent on 4 December 2017 but always represented [NAME_24]. [NAME_24] joined on 10 April 2019. 293 The question is, has [NAME_23] established on the balance of probabilities, on the whole of the evidence, that [NAME_6] does not exist in relation to the [ADDRESS] land? 294 Section 223 of the NTA involves four basic elements for the existence of [NAME_6]: • A [NAME_6] group holding [NAME_6] rights and interests in relation to land or waters, in this case, the Land, being all the persons who according to their traditional laws and customs hold common or group rights and interests in relation to that Land; • Those [NAME_6] rights and interests must exist under the traditional laws acknowledged by and the traditional customs observed by that [NAME_6] group; • The laws and customs of the [NAME_6] group must have a normative content deriving from that body of traditional laws and customs existing before sovereignty; • The normative system of traditional laws and customs must have been observed continuously by that [NAME_6] group as a whole. 295 The requirement for continuity requires substantially uninterrupted continuity: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] [NAME_7]; 214 CLR 422 at [87]; Risk v Northern Territory [2006] FCA 404 at [97(c)]. 296 The focus of [NAME_23]'s submissions was on the evidence of the alleged lack of continuity of acknowledgement and observance of traditional laws and customs giving rise to rights and interests in relation to the [ADDRESS] land. [NAME_23] did not submit that there was no [NAME_6] group that acknowledged and observed traditional laws and customs giving rise to [NAME_6] rights and interests in relation to other land. Its case was that on the evidence it had established on the balance of probabilities that there was no continuity of acknowledgement and observance of traditional laws and customs giving rise to rights and interests in relation to the [ADDRESS] land.

Resolutions 297 [NAME_23] relied on its own resolutions and those of the [NAME_35] joint boards of management to the effect that the [ADDRESS] land is not of significance to [NAME_30] noting that: (1) the 13 September 2014 resolution of [NAME_23] involved 14 [NAME_23] members; (2) the 22 September 2014 resolution of [NAME_23] involved 12 [NAME_23] members; (3) the 15 November 2016 resolution of the [NAME_35] joint boards of management involved 13 members including [NAME_107], the daughter of [NAME_122], and no one could recall any use of the [ADDRESS] land for cultural purposes or any spiritual importance of the [ADDRESS] land; and (4) 9 December 2016 there was a further confirmatory resolution of the [NAME_35] joint boards of management. 298 It was submitted that this evidence is crucial. According to [NAME_23]: (1) [NAME_440] testified that the knowledge holders at the [NAME_35] joint boards of management meeting were "awesome knowledge holders." In her affidavit, she had referred to "a 'packed house' of [NAME_2] knowledge" and an absence of any debate about the [ADDRESS] land. (2) [NAME_56] has lived in [NAME_22] and gave evidence of having no knowledge of any use of the [ADDRESS] land for [NAME_2] activities. (3) [NAME_253] deposed that no one at the [NAME_35] joint boards of management meeting said they had any knowledge of any cultural significance attached to the [ADDRESS] land. (4) [NAME_31] said the [ADDRESS] land is not regarded by [NAME_30] as significant. (5) [NAME_409] testified that the [NAME_35] joint boards of management members are knowledge holders for the area, including [NAME_93], [NAME_96], [NAME_31], [NAME_99], [NAME_105], [NAME_107] and [NAME_110]. (6) The [NAME_23] meetings were themselves attended by renowned knowledge holders of the [NAME_22] region, including [NAME_31], [NAME_141], [NAME_45], [NAME_78] and [NAME_89]. (7) At the meeting in March 2018 no specific [NAME_6] rights or interests were asserted by [NAME_24] members. 299 [NAME_23] submitted that [NAME_393] (who attended the March 2018 meeting) tried to claim as a "recent invention" that she did not support [NAME_23]'s plans and had in fact asserted specific rights at the meeting. It was submitted her testimony was inconsistent with: [NAME_429]' later testimony, and with: contemporaneous letters flowing between the lawyers; [NAME_442]'s statements at the 26 April 2018 hearing; and the [NAME_121] advertisement of 30 January 2019 referring to the [[ADDRESS]] Land as "vacant" and being advertised for the purposes of an 86G [of the NTA] notice. 300 [NAME_23] pointed out that: (1) 29 different indigenous people were involved in the first three meetings; (2) of those people, 7 are [NAME_23]'s witnesses and 22 are non-[NAME_23] witnesses; (3) the resolutions individually and collectively show that the local community elders considered the [ADDRESS] land and determined that it has no significance in a [NAME_121] sense; (4) the total number of indigenous people in the meetings and [NAME_23]'s indigenous witnesses combined, equals 39 people; (5) add [NAME_23]'s non-[NAME_2] witnesses (10), and the total number of people is 49; and (6) "[w]hen this evidence is coupled with extinguishment on part of the [[ADDRESS]] Land plus factors of [NAME_95] interference, and an absence of evidence weighing in favour of any alleged [NAME_6], the conclusion is that the [[ADDRESS]] Land is not a place of significance to the local [NAME_2] community and not [NAME_6] country". 301 According to [NAME_23] the resolutions reflect an absence of any acknowledgment and observance of traditional laws and customs in the [ADDRESS] land which has continued substantially uninterrupted by each generation since sovereignty. Specifically, the resolutions show both an absence of connection in the physical sense in terms of use of the [ADDRESS] land and an absence of cultural and spiritual connection with the [ADDRESS] land.

Primary evidence from [NAME_2] knowledge holders 302 [NAME_23] submitted that the evidence of so many primary knowledge holders of an absence of [NAME_6] over the [ADDRESS] land is "precisely the evidence which the Court needs to make the determination". It submitted that all of its evidence from [NAME_2] knowledge holders supported the conclusion that there was no [NAME_6] over the [ADDRESS] land and this was supported by the oral evidence. 303 [NAME_23] provided the following examples of the evidence said to support its case.

[NAME_219] 304 [NAME_257] is an 85 year old traditional elder of the [NAME_126] from [NAME_120]. [NAME_257] and her late husband [NAME_182] are eminent knowledge holders referred to in evidence by numerous witnesses. She gave evidence including: • Regarding the land at [ADDRESS], to my knowledge, I have never heard of any burial sites or any significant sites or anything like that… I don't know anyone who has said there is [NAME_121] significance in this land. • There's no connection with Kooris being together there… [ADDRESS] is a built-up area, come on…Sites of significance is a place where the old, old people may have gathered, but the younger people these days, they don't gather there... people my age, they've never.

[NAME_286] 305 [NAME_284] is a descendant of multiple apical ancestors of the [NAME_127] nation who lives in [NAME_22]. He gave evidence: • don't ever recall any stories when I was [NAME_140] or even in recent times about the site at [ADDRESS] being of cultural significance in relation to ceremony or birth or even a camping site…I am not aware of any higher significance of this Isabel street location, or any traditional activities at all in my time or prior. • I've never heard of anyone going onto [the Land] for resources like reeds, native cherry trees, ochre, medicine plants, or Burrawang…I have never heard of the Land in recent times being used for hunting or as a water source. • never heard any mention about significant sites at or around this Land… if there was…someone from the [NAME_2] community, prior to this dispute, would have been raised the issue, but no one ever has…[the Land] is not known among the local [NAME_2] community in and around [NAME_22] to be of any cultural significance.

[NAME_141] 306 [NAME_288] is a 75 year old elder of the [NAME_127] nation and renowned knowledge holder who has lived around the [NAME_22] area most of his life. He learnt from eminent knowledge holders including [NAME_182], [NAME_214] and [NAME_293]. He said he would have known if the [ADDRESS] land had any significance and it was not of importance to the [NAME_121] community.

[NAME_269] 307 [NAME_272] has lived in the [NAME_22] area since 1960. She said that she has never heard of any person saying that they have been involved in cultural activities on the [ADDRESS] land. Nor did she know of anyone ever saying the [ADDRESS] land has any [NAME_121] significance.

[NAME_45] 308 [NAME_181]'s evidence "conveys his knowledge of, and broad consultations in relation to, the [[ADDRESS]] Land. He says [sic] there is no [NAME_2] significance in this [[ADDRESS]] Land." 309 [NAME_23] submitted that the fact that some of the witnesses candidly gave evidence that all land is significant to [NAME_30] but some land has higher significance is not a concession of the existence of [NAME_6] in relation to the [ADDRESS] land but a reflection of true feelings. 310 According to [NAME_23] its evidence surpasses that of any prior case in terms of quality and quantity. 311 [NAME_23] said its witnesses exhibit breadth in association, seniority and depth of knowledge including numerous members of [NAME_23], members of indigenous boards and leadership groups, members of [NAME_24] claim group, siblings and other connections to [NAME_24] claim group, and have broad ancestry. 312 [NAME_23] submitted that the evidence of its witnesses was detailed and candid. The hypothetical questions put to a number of them as to whether they would assert [NAME_6] in the [ADDRESS] land did not elicit useful evidence. The mere assertion of [NAME_6] is not sufficient. The burden of proof on [NAME_23] is on the balance of probabilities and not beyond reasonable doubt. [NAME_23] witnesses were adamant that if the [ADDRESS] land was significant they would know about it. If it was significant there would be stories but they had heard none. 313 [NAME_23] rejected all challenges to the credit of its witnesses. It submitted that: The evidence indicates that it is overwhelmingly known and believed among local [NAME_30] that the [[ADDRESS]] Land is not significant in a [NAME_121] sense. 314 Implicit in [NAME_23]'s submission was that the evidence about the significance of the [ADDRESS] land was evidence about the non-existence of traditional laws and customs by which [NAME_24] continued to be connected to the land.

Evidence of non-[NAME_2] witnesses 315 All of these witnesses gave evidence that they have never seen, heard of, or otherwise known about, any indigenous activities (or use or occupation) occurring on the [ADDRESS] land. These witnesses work or live on all four sides of the [ADDRESS] land and have done so for decades. [NAME_23] said that their evidence provides the Court with more probative evidence directed to the negative proposition, and more comfort to make the negative determination. 316 According to [NAME_23] this evidence: …reinforces the evidence of primary knowledge holders, community resolutions and factors of [NAME_95] intervention and dispossession…, supporting the conclusion that there is no [NAME_6] in the [[ADDRESS]] Land… What remains entirely unchallenged (and could not be) is the notion that the witnesses - whose collective experiences cover all sides and parts of the [[ADDRESS]] Land over a prolonged timeframe - have never seen [NAME_30] on the [[ADDRESS]] Land doing anything that supports an inference of [NAME_6], nor have they heard of it, despite working or living on the [[ADDRESS]] Land's perimeter often for decades or half a century plus or minus in two cases. Some witnesses also have ties with local [NAME_30] and know of [NAME_2] activities which do occur in the region, but they do not occur at [ADDRESS].

[NAME_95] settlement and dispossession 317 According to [NAME_23] the: evidence of the effect of [NAME_95] settlement and dispossession of [NAME_30] of their land militate against a finding that any body of traditional law and customs has continued, as opposed to attenuated or transformed fragments of laws and customs (if any at all). 318 In oral submissions it was clarified that this submissions was confined to the relationship between traditional laws and customs and the [ADDRESS] land. In particular, it was submitted that the [ADDRESS] land is in an urban area, surrounded by development on all sides, was previously used for a tip and had experienced continued dumping of rubbish, has sewage infrastructure located on it, and is in an area from which there was forced displacement of and prejudice against [NAME_30]. All this tended, it was said, to a conclusion of substantial discontinuity of the acknowledgment and observance of traditional laws and customs in relation to the [ADDRESS] land. 319 It was submitted that the supporting evidence included the following.

[NAME_141] [NAME_30] very rarely went into [NAME_22], it was a very prejudicial place in those times. Camping behind the football oval was a safe place free from the fear of being attacked. The [[ADDRESS]] Land, is not, and has never been, a camping spot for [NAME_30].

[NAME_195] The presence of industrial businesses and houses and development around the [[ADDRESS]] Land in this case to my observation and knowledge tends against it having significance to [NAME_30]. …The [[ADDRESS]] Land never looked inviting to me. As a [NAME_121] person I was not attracted to go on to it, and had no need to do so as a [NAME_121] person. 320 Further, after the forcible resettlement of [NAME_30] to the [NAME_120] reserve: [NAME_30] had little if any access to traditional country from which they were taken (including [NAME_22])… There can't be connection where [NAME_30] have not been able to live….

[NAME_131] 321 [NAME_134]'s evidence: provided details of interference and prejudicial treatment by [NAME_95] forcibly moving his family, and illustrating that he has practised culture to the extent he does not get 'locked up'.

[NAME_443] 322 [NAME_342] gave evidence that: • The [[ADDRESS]] land 'is not significant in a [NAME_25] sense and is not [NAME_6] country…This all seems so unbelievable that I or others have to go to such lengths to prove what is known by the community, that this is not an important place for [NAME_30] in a [NAME_121] sense.' • [NAME_30] in the area in and around the [[ADDRESS]] Land were moved to reserves in the late 1870s… this [[ADDRESS]] Land is one of those parts where any [NAME_6] connection was lost.… the [NAME_165] is inconsistent with the compulsory displacement of [NAME_30] into reserves and the forced prevention of my people being able to practice culture, such as walking in the street holding spears, or being dressed in traditional clothing. All of this happened in [NAME_22]. • [T]o walk from [NAME_120] to [NAME_22] in the 1950s…one would need a permit from the [NAME_2] Protection Board…they were very restricted.… it would have been very difficult…

[NAME_319] 323 [NAME_321] gave evidence that: The land at Isabel [Street] is urban landscape. We wouldn't have gone to a place like that when visiting [NAME_22]. And we still don't do that. Our cultural values and heritage isn't the sort of thing we want to showcase or display for whitefellas… Our cultural values, a lot of it is done in secret. It's not done in the town. Isabel St[reet] is in the town.

[NAME_269] 324 [NAME_272] gave evidence that she would not even think of stopping her car to walk around the [ADDRESS] land and it was just another block of land.

[NAME_31] 325 [NAME_39] gave evidence that connection to land could be lost which is what had happened at the [ADDRESS] land.

[NAME_23] 326 [NAME_23] submitted that the evidence of [NAME_24] witnesses assisted [NAME_23]'s case. As to [NAME_166], his: …oral evidence undermined any continuing connection in relation to the activities he deposed to (any connection always being denied) on 3-4 occasions when he was 5-6 or 11-12 years old, i.e. camping, fishing at Little Lake and resource gathering. [NAME_166] stated, first, that when the Golf Course acquired the land surrounding Little Lake (i.e. 60s/70s) this clearly interfered with traditional activities: 'it virtually put a stop to elders and myself going on that land'… Second, he said that the tip was on the [[ADDRESS]] Land and both it and sewerage stopped access to [ADDRESS].

Accordingly, any acknowledgment and observance of laws and customs (if any) did not continue substantially uninterrupted.

[NAME_409] 327 [NAME_412] gave evidence that: … [NAME_30] were historically moved all over the South Coast onto missions/reserves and 'turned into [NAME_95] people'.

[NAME_436] 328 [NAME_439] conceded that her report did not address the 20th century except for the 1990s.

Weakness of [NAME_25]'s evidence 329 According to [NAME_23] the evidence for [NAME_24] has: …fallen well short of proving that that there is a normative body of laws and customs in connection with the [[ADDRESS]] Land, the observance of which has been substantially maintained from the time of sovereignty to the present day, so as to cast sufficient doubt on the Applicant's evidence. 330 The evidence of [NAME_24], submitted [NAME_23], was: • vague, highly generalised, 'historical' or 'hypothetical'; • substantially uncorroborated, involving mere assertion without substance; • focused on connection with other lands. 331 [NAME_23] made the following submissions about [NAME_24]'s evidence.

[NAME_409] 332 [NAME_412] did not mention the [ADDRESS] land in his affidavit and thus his evidence does not support a case for [NAME_6] in relation to the [ADDRESS] land.

[NAME_19] 333 [NAME_393] gave clearly inadequate evidence lacking any assertion of personal use of the [ADDRESS] land and depending instead on a conversation with an unknown man. [NAME_393] was also not from [NAME_22]. [NAME_23] said: [NAME_393]'s evidence does not cast genuine doubt on [NAME_23]'s evidence. No uses of the [[ADDRESS]] Land are asserted by her, or by any named person. It is uncorroborated and reliant on an 'unnamed man'. There were several 'recent inventions' concerning camping and Bomaderry (inconsistent with her lawyer and [NAME_39] and related letters/transcript). Her evidence and quality of knowledge was expressly rejected by several [NAME_23] witnesses.

[NAME_164] 334 According to [NAME_23]: This affidavit was intended to establish a connection to the [[ADDRESS]] Land based on 3-4 acts of alleged camping at [the} Isabel St[reet Land] (unspecified where) and fishing at nearby Little Lake roughly 54-61 years ago and other unspecified 'ancestral' ties. The witness orally accepted that any 'connection' was ended by the Golf Course and tip/sewerage. He could not identify where the [[ADDRESS]] Land was by reference to Glasshouse Rocks, even when assisted by a map. His evidence relied on alleged events with ancestors who are all deceased, even though living offspring could have given evidence. The account is uncorroborated at the 11th hour. [NAME_166] is from Ulladulla/Batemans Bay. No ancestor of his was from [NAME_22] except [NAME_167] ([NAME_172]'s father). His evidence never referred to any activity on any part of the [[ADDRESS]] Land, nor to any part of Little Lake, nor to any animal, nor to any other [NAME_22] campsite. [NAME_166] referred to Mystery Bay and Glasshouse Rocks as 'sacred' or 'very important,' yet never described the [[ADDRESS]] Land in such terms. The evidence is contradicted, inconsistent with or rejected by 5 [NAME_23] witnesses. It is totally inadequate.

[NAME_122] 335 [NAME_23] submitted: The evidence is again insufficient. The witness testified that Mystery Bay to [NAME_170] (which does not cover the [[ADDRESS]] Land) is 'more important,' or she is 'more connected' to it. In her 1st Affidavit, written before this dispute arose (while living in [NAME_22]), [NAME_405] never mentioned [ADDRESS] once, nor says [NAME_22] is significant, nor says she is connected to it, nor says she speaks for it. [NAME_405] accepted orally that she never refers to [the] [ADDRESS] [land] in her 2nd Affidavit as 'sacre' yet [NAME_170] is 'sacred' because it is 'more important'. [NAME_405] enthusiastically deposed that she has been 'protecting [NAME_170] for 30 years,' this litigation is the first time she has sought to 'protect' the [[ADDRESS]] Land, despite living opposite it for 14 years and her daughter ([NAME_107]) attending the 2016 Owner Board meeting which resolved that the [[ADDRESS]] Land was not significant. As to activities: Camping: No personal assertion in 2nd Affidavit of camping on [te [ADDRESS]] Land at any time; a purely historical assertion relating to unnamed ancestors. No specific camping location given. No timing as to camping. Assertion of women camping was inconsistent with [NAME_166]'s 'men's business' claim. Water: Witness accepted orally that she does not drink water on [the [ADDRESS]] Land. Suggested her ancestors did. Contrary to her affidavit, witness confirmed there's no running water on [the [ADDRESS]] Land. Only alleged 'freshwater' is swampy area opposite Golf Course: 'freshwater from the rain.' Witness gets all drinking water at [NAME_170]. Never mentioned water on [the [ADDRESS]] Land in 1st Affidavit. Hunting: No evidence of anyone who hunts on [the [ADDRESS]] Land. No animal specified. Fishing: confirmed nowhere to fish on [the [ADDRESS]] Land, never mentioned Little Lake in either affidavit, and Glasshouse Rocks not 500m away but over 1.2km as crow flies. Cherries: no present assertion of her taking cherries in 2nd Affidavit (after 2006). Poor explanation: '[NAME_2] speaking.' Ochre: no mention of taking ochre from [the [ADDRESS]] Land in 1st Affidavit despite living there. 'Didn't know' why didn't mention taking ochre 100m from house, but did mention taking at [NAME_170] (50 min away). Charcoal: never says takes charcoal from [the [ADDRESS]] Land, nor when, how often, where. Yet knew Affidavit's purpose was to give detail of traditional uses. Artefacts: no affidavit evidence linking artefacts to [the [ADDRESS]] Land. Reeds: accepted there is no evidence of anyone gathering reeds on [[ADDRESS]] Land. [NAME_407] not applicable to [the [ADDRESS]]Land. Burrawang: no assertion in 2nd Affidavit whatsoever of gathering from [the] Isabel St[reet land]. Bush medicine / ferns / grass: it's 'all over South Coast.' Witness specifically takes [NAME_22] students to [NAME_170] (50 min away) to teach about Lomandra grass – undermines any assertions in relation to grass on [[ADDRESS]] Land. [NAME_405]'s evidence reflects either no uses of the [[ADDRESS]] Land at all or clearly insufficient use. Her 2nd affidavit speaks in vague, highly generalised, hypothetical or historical terms. Her appeal now to the [[ADDRESS]] Land's importance is inconsistent with prior inaction, community resolutions, and correspondence during this proceeding. No other [NAME_124] supported her account (nor [NAME_406]), including [NAME_444] who is 'more senior'. By [NAME_405]'s admissions, other land is 'more important' to her or 'more connected.' The quality of her knowledge is expressly rejected by several [NAME_23] witnesses.

[NAME_436] 336 [NAME_23] submitted that: (1) Her report, which was directed to the question of use and occupation of the [ADDRESS] land, was substantially incomplete. (2) There was no fair consideration of matters relevant to [NAME_23]'s case. (3) [NAME_439] was 'presuming' use and occupation in the absence of evidence, which is inadequate. (4) This report was of insufficient forensic utility for present purposes. 337 According to [NAME_23] the evidence for [NAME_24] did not cast sufficient doubt on the evidence for [NAME_23] so as to weigh against a determination that there was no [NAME_6] in relation to the [ADDRESS] land. [NAME_23] summarised its contentions as follows: (1) No current use of the [ADDRESS] land was maintained except by [NAME_405], and this pertained to vague, highly generalised assertions of resource gathering. Any actual camping, hunting, fishing, water use, ceremony, birthing etc, was not maintained. (2) If any use does occur, it is insufficient use. The case law makes clear that minimalist uses are insufficient. (3) With a clear break in continuity even accepted by [NAME_166], and substantial unexplained time periods of no alleged use, any current use is not of the relevant group, or is not traditional. (4) This is linked, in no insignificant part, to [NAME_95] settlement and dispossession. (5) There is no 'presumption of continuity'. (6) To the extent that any [NAME_6] may exist in surrounding areas (and not the [ADDRESS] land), this is unavailing. (7) Any suggestion that connection can be made out on 'spiritual' grounds (as opposed to physical ones) is denied as: (a) the various resolutions militate against that conclusion; (b) this is the first time any [NAME_25]'s member came forward to protect this land; (c) none of [NAME_24]'s affidavits refer to the [ADDRESS] land as 'sacred' or 'very important,' despite the fact that such references are used when describing other lands; and (d) there is also no cogent evidence of stories associated with the [ADDRESS] land. (8) There is considerable rejection of [NAME_24]'s lay evidence by their siblings and other family members whose evidence was adduced by [NAME_23]. (9) The [NAME_23] witnesses are clearly more senior overall, more engrained in the local area and community overall, and have given more particularised evidence about the [ADDRESS] land and its surrounds.

Absence of evidence 338 [NAME_23] submitted that the absence of evidence is particularly telling. Of all the people who could have come forward only three (sic – four) [NAME_2] witnesses gave evidence and only two did so in decent time. Of the 13 [NAME_25] claim group applicants who joined as respondents on 10 April 2019 only three have given evidence. 339 According to [NAME_23], Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 applies to the present circumstances. It should be inferred that the evidence of the 10 other parties who are members of the applicant for [NAME_24]'s claim would not have assisted the case. [NAME_23] said this was especially so for: (1) [NAME_171], son of [NAME_174], sibling to [NAME_269] and [NAME_274], who lives a 12 minute walk from the [ADDRESS] land; (2) [NAME_402], who is a cultural fisherman from Moruya and a senior applicant; (3) [NAME_444] who is the "more senior" compared to [NAME_122]; and (4) [NAME_107] who is the daughter of [NAME_405] who participated in the 2016 meeting which resolved that the [ADDRESS] land has no significance. 340 Otherwise, [NAME_23] submitted: (1) Registration of [NAME_24]'s [NAME_6] claim is an administrative act and is not proof of the existence of [NAME_6]. (2) The [NAME_129] was over a large area of land and the applicants for that claim could have no knowledge of each and every parcel, as is the case for [NAME_24]'s [NAME_6] claim. (3) None of the evidence of [NAME_284], [NAME_342], [NAME_288] or [NAME_257] asserting that this case is really a personal feud was challenged. 341 Accordingly, [NAME_23] submitted that the clear preponderance of the evidence was in its favour that there is no [NAME_6] in relation to the [ADDRESS] land.

[NAME_25]'S SUBMISSIONS 342 [NAME_24] applicant (which includes [NAME_18] as their representative) made the following submissions: (1) [NAME_23] must satisfy the Court, on the balance of probabilities, that no [NAME_6] exists in the [ADDRESS] land. In considering this issue the Court is to take into account the nature of the asserted claim, the subject matter of the proceeding and the gravity of the case alleged: s 140(2) of the Evidence Act 1995 (Cth). (2) The case for [NAME_18] and [NAME_24] is that they have adduced evidence to show that there exist traditional laws and customs in relation to the [ADDRESS] land that continue to be observed so that a connection with the [ADDRESS] land has been maintained and so as to cast sufficient doubt on the negative proposition that [NAME_23] seeks to prove. (3) All of the evidence is to be weighed according to the proof that it was in the power of one side to produce and in the power of the other side to have contradicted. (4) A determination of no [NAME_6] has serious consequences. In this case it will be the loss of 17 hectares of land over which [NAME_24] claim [NAME_6]. A negative determination is a determination in rem thereby requiring careful consideration of the weight of the evidence. In a case such as this the land in question should be considered in the larger context of the overall claim for [NAME_6]. (5) There has been no equivalent proceeding in which the Court has made a negative determination in respect of a non-claimant application where a registered [NAME_6] claimant application exists. In Fejo v Northern Territory [1998] [NAME_7]; 195 CLR 96 at [40] [NAME_445], [NAME_446], [NAME_447], Gummow, Hayne and Callinan JJ stated the importance of the status of a registered claim as follows: Ordinarily, the fact that an applicant for an injunction is a registered [NAME_6] claimant will suggest, if not demonstrate, that there is a claim to [NAME_6] that is arguable (the Registrar being obliged to accept the application unless of the opinion that it is frivolous or vexatious or that prima facie the claim cannot be made out). 343 [NAME_24] submitted further that many of [NAME_23]'s [NAME_2] witnesses themselves asserted rights and interests in the [ADDRESS] land. They referred to evidence that [NAME_126] had the right to take and use resources on the [ADDRESS] land including as follows: [NAME_219] (right to take Burrawang plants, ochre, reeds/grass, wood); [NAME_59] (collect wood); [NAME_253] (pick native fruits off the land); [NAME_281] (right to take and use resources) and [NAME_160] (pick reeds to make baskets and other other artefacts). 344 [NAME_24] submitted that when considering the evidence the [ADDRESS] land cannot be viewed in isolation from the surrounding land and waters. They said: (1) [NAME_23]'s [NAME_2] witnesses gave extensive evidence about places and sites on land and waters in all directions surrounding the [ADDRESS] land which are of cultural significance to [NAME_25]. (2) When the evidence is considered in its entirety it is apparent that [NAME_22] and the surrounding lands and waters are littered with culturally significant areas which [NAME_25] hold knowledge of, and maintain a connection to. (3) When asked, a number of witnesses confirmed that the following places were part of [NAME_127] or [NAME_25]'s traditional country, and no witnesses gave any evidence to the contrary, all being places in relative proximity to the [ADDRESS] land including: (a) Forsters Bay; (b) Smyth's Oval; (c) Glasshouse Rocks; (d) Handkerchief Beach; (e) [ADDRESS]; (f) Corunna Lake; (g) Brou and Mummaga Lake; (h) Mystery Bay; (i) [NAME_34]; (j) Potato Point; (k) [NAME_120]; and (l) Mumbulla ([NAME_36]) Mountain. 345 The [NAME_2] witnesses all gave evidence of traditional laws acknowledged by and the traditional customs observed by [NAME_24] or the [NAME_127] including: (1) the existence of rights and obligations to maintain, protect and speak for cultural places and sites including: (a) [NAME_195]: asserts the right to speak for the Brinja-[NAME_126]'s country and also as a 'traditional custodian' she can speak for all the area around the [NAME_36] and [NAME_34], and Mystery Bay because she is a traditional owner who is a descendant of an ancestor who came from that area originally, before European occupation of Australia. (b) [NAME_131]: stated he has the right to speak for all [NAME_127] country which includes 'the Shoalhaven River to the Snowy River in the south', however he has considerably more knowledge about the [NAME_135] country and it is his responsibility to look after it. (c) [NAME_53]: gave evidence that Brou Lake and Mummuga Lake form part of her traditional country and said she can speak for Brou Lake and Mummuga Lake as well as [NAME_36] and [NAME_34]. (d) [NAME_219]: gave evidence that [NAME_120] is her traditional country and she can speak for that area. (e) [NAME_45]: stated that he has been taught by his elders since he was a child about places of importance and sites of significance in [NAME_22] and noted he knows of burial sites, midden sites, scarred trees and mapping sites in [NAME_22]. (f) [NAME_274]: gave evidence that [NAME_126] only can speak for [NAME_127] land as it is their traditional country and under laws passed down from elders only people descended from people in that area could speak for it. (g) [NAME_319]: gave evidence that he was taught the laws and customs of the [NAME_127] nation from his parents and extended family including "the connections we have with each other and the extended families and the roles and responsibilities of protecting the environment." (2) the right to access and take resources from land and waters surrounding the [ADDRESS] land, including: (a) [NAME_59]: gave evidence that his family dived to collect abalone and lobster at Glasshouse Rocks; as a boy he hunted about 5km northwest of the land; his mother and [NAME_142] collected bush medicines from bush around the [NAME_22] area; his daughter and wife, get ochre for traditional dance and this knowledge was handed down to them from [NAME_39]'s [NAME_127] mother. (b) [NAME_253]: gave evidence that she is entitled to go to beaches near [NAME_22] and "anywhere around there" to collect shells and she is entitled to collect bush tucker in the [NAME_159] area (that includes [NAME_22]). (c) [NAME_281]: gave evidence that he could go onto land for traditional purposes. (d) [NAME_195]: stated that as a traditional owner from the area around [NAME_22] she has the right to fish and hunt along that coastline; was told by old people growing up that she had the right to hunt kangaroo because it was their country and they had ancestors from that area; her family have the right to get water from the [NAME_34] area; common knowledge that collecting wood and water were part of her ancestor's way of life; extensive knowledge of bush foods and medicines. (e) [NAME_131]: gave evidence that as a [NAME_130] he is entitled to go to [NAME_22] and hunt and fish along the coastline, tell stories and do dances. (f) [NAME_160]: said he has the right to hunt in [NAME_127] country and his elders taught him the way to do those things. He also gave evidence that he believes [NAME_126] can take wild cherries, pick the Burrawang plant and take reeds, including from the [ADDRESS] land if they let [NAME_23] know. (g) [NAME_319]: believes [NAME_25] or [NAME_126] have the right to go fishing at [NAME_22] and he has done that often; takes resources such as mangroves to make boomerangs, nullas, shields and spears and stringy barks; and picks the Burrawang plant and leaches the plant before consuming it as has been passed down from generation to generation. (h) [NAME_45]: said he has the right in [NAME_127] country to "[p]ractise my cultural rights, my cultural heritage, fishing, hunting and gathering, story-telling." (i) [NAME_31]: gave evidence about camping, prawning and fishing with her family at Corunna Lake; collecting bimbullas (cockles) at Forsters Bay (taught by [NAME_261] [NAME_448]); collecting bush medicine from bush around [NAME_22]; gathering bracken fern and using it to make bedding; places around [NAME_22] to obtain grasses for weaving; and ochre. (3) the right to access and remain on and use land including the right to camp: [NAME_31] gave evidence about travelling and camping along the South Coast as a child. [NAME_450] also gave evidence about camping at Mummaga Lake, [NAME_273]. [NAME_450] agreed that camping is a right she has under her traditional laws and customs. 346 [NAME_24] gave evidence of [NAME_6] rights and interests that continue to be asserted around [NAME_22] and the South Coast and on the [ADDRESS] land. 347 [NAME_24] submitted further: (1) Riparian corridors and water pooling in a gully was apparent during the view of the [ADDRESS] land. The evidence of [NAME_166] and [NAME_405] about fresh water on the [ADDRESS] land should be accepted. (2) Evidence of some dumping of rubbish on the [ADDRESS] land does not prove it was a former tip. The weight of the evidence suggests the tip was in the light industrial area to the south of the [ADDRESS] land. (3) There was confusion amongst [NAME_2] witnesses about ownership of the [ADDRESS] land and the role of [NAME_23] and the intersection with [NAME_6] rights and interests. (4) The evidence of non-[NAME_2] witnesses about their observations of the [ADDRESS] land does not prove lack of use before [NAME_23] ownership or lack of use at the present day. None of the witnesses had or were focused on the [ADDRESS] land as a whole.

[NAME_3] [NAME_4]'S SUBMISSIONS 348 The [NAME_3] [NAME_4] made submissions confined to legal issues. The [NAME_3] [NAME_4] did not otherwise contend that the case of one or other party should be accepted or rejected. 349 The [NAME_3] [NAME_4] pointed out that: (1) On 28 November 1994, the [NAME_6] ([NAME_5]) Act 1994 (NSW) (the NSW NTA) came into force. The NSW NTA amended s 36(9) of the ALRA by making all land transferred under that provision "subject to any [NAME_6] rights and interests existing in relation to the lands immediately before the transfer". (2) In the second reading speech (NSW Hansard Legislative Assembly 20 April 1994), the Minister for Energy, and Minister for Local Government and Co-operatives said: One of the main objects of the [NAME_2] Act is to compensate [NAME_30] for dispossession from their traditional lands. If that traditional connection has been maintained in a way which would sustain a claim for [NAME_6], then it is that claim which should have precedence. Where a claim under the [NAME_2] Act is granted, it will be granted subject to any [NAME_6] which may exist in the land. It may be that at the time of the grant no claim is made, but at a later time [NAME_6] in the land is shown to exist. If that is the case, the [NAME_6] holders, as traditional holders of the land, should have precedence over the relevant [NAME_2] land council. This procedure will allow grants under the [NAME_2] Act to be made without extensive inquiries having to be made about whether the grant would affect [NAME_6] and thus offend the Commonwealth Act. However, to protect purchasers of land granted to a land council that is subject to [NAME_6] interests that have not yet been identified, the [NAME_2] Act is further amended to provide that such land cannot be sold unless there is on foot an approved determination in respect of [NAME_6]. (3) Although the [ADDRESS] land was granted to [NAME_23] on 18 May 1998, it was formally transferred on 7 March 2006.

Accordingly, s 36(9) of the ALRA applies to the [ADDRESS] land, that is, it is subject to any [NAME_6] rights and interests that existed immediately before the transfer. (4) Section 42(1) of the ALRA requires that an [NAME_2] must not deal with land granted to it under s 39(9) unless the land is the subject of an approved determination of [NAME_6]. (5) Section 42G of the ALRA requires that a [NAME_2] obtain approval from the [NAME_2]. Section 42G(2) requires the [NAME_2] to consider whether "the dealing is, or is likely to be, contrary to the interests of the members of the [NAME_2] or other [NAME_2] persons within the area of that Council." To determine whether a dealing is contrary to these interests, the statute lists a number of factors to consider including, under s 42G(3)(c) "whether the [NAME_2], … had proper regard to the cultural and heritage significance of the land to [NAME_2] persons". (6) Section 40(4) of the ALRA defines "cultural and heritage significance to [NAME_2] persons" as land being "… significant in terms of the traditions, observances, customs, beliefs or history of [NAME_2] persons." (7) In [NAME_8] at [181] the Court observed that cultural significance is not the question posed by the NTA. There is no reference in s 223 of the NTA to cultural and heritage significance. (8) As positive and negative determinations of [NAME_6] have the same juridical character, it is submitted that the Court should not take into account the fact that there may be no cultural and heritage significance of the [ADDRESS] land and the [ADDRESS] land is not recorded on the [NAME_2] Management System. 350 The [NAME_3] [NAME_4] submitted that for [NAME_23] to prove the negative proposition it needs to prove only one of the following: (1) the rights and interests claimed in relation to the [ADDRESS] land are not possessed under the traditional laws acknowledged and traditional customs observed; or (2) no connection to the [ADDRESS] land exists; or (3) the rights and interests claimed in relation to the [ADDRESS] land are not recognised by the common law of Australia. 351 [NAME_23] would succeed if it could prove that: (1) there has been no transmission of traditional laws and customs; (2) no [NAME_6] rights and interests relate to the land the subject of the non-claimant application; (3) the people who claim to hold [NAME_6] are not descended from persons who held [NAME_6] in that area at sovereignty; (4) an indigenous society in that area never existed; (5) the indigenous society at sovereignty never acknowledged or observed traditional laws and customs on or in the vicinity of the subject land; or (6) the claimed rights and interests have been lost, abandoned, or otherwise ceased to exist.

DISCUSSION

Some aspects of the evidence 352 I do not accept the suggestion (assuming it was still pressed) that [NAME_49] and [NAME_31] were "cynically tailoring" their evidence to suit their circumstances or that their evidence was self-serving. I consider that they gave honest evidence which should be accepted. I also do not accept that [NAME_31] might have misled the [NAME_199] on 15 November 2016. I find it difficult to accept that the attendees at the meeting were unaware of the location of the [ADDRESS] land which is a large bushland block in the township of [NAME_22] not too far from Glasshouse Rocks, a location on the beach which the evidence indicates is of significance to [NAME_24]. It was also not misleading for [NAME_39] to say the [ADDRESS] land was in the industrial area given that it immediately abuts industrial development. It is the attendees who recalled the property/area being used as a tip and there is other evidence indicating that there was a tip on at least part of the [ADDRESS] land. I also do not accept that the attendees of the meetings would have expressed any opinion about their lack of knowledge of any cultural or spiritual importance of the [ADDRESS] land unless they knew its location and were familiar with it. 353 Further, I do not accept that [NAME_19] was giving evidence comprising a recent invention about the assertion of [NAME_6] rights and interests at the meeting between representatives of [NAME_24] and [NAME_23]. It must be recalled that [NAME_24] had made a [NAME_6] claim over a large area which includes the [ADDRESS] land. By reason of that fact alone they asserted [NAME_6] rights and interests in relation to the [ADDRESS] land. As [NAME_429] said, in those circumstances, it was not necessary for that fact to be reiterated in discussions with [NAME_23]. The submissions for [NAME_23] about this issue, and [NAME_393]'s evidence, fail to acknowledge the relevance and effect of [NAME_24]'s registered [NAME_6] claim which necessarily involves an assertion of the [NAME_6] rights and interests identified in the application. Those rights and interests are identified as the communal rights of [NAME_24] as a whole to possession, occupation, use and enjoyment of the lands and waters of the application area to the exclusion of all others or, where exclusive rights and interests cannot be recognised, to access, remain in and use the lands and waters for any purpose, to take resources from the lands and waters for any purpose, to maintain and protect objects of significance, and, in so doing, to be accompanied by others. 354 I also do not accept the suggestion that, by reason of inconsistency of language between her first and second affidavits, [NAME_405] was not telling the truth when she said she accessed the [ADDRESS] land to obtain wood, native cherries, charcoal, and ochre. [NAME_405] lives close to the [ADDRESS] land. It makes sense that she would use the [ADDRESS] land to collect bush tucker and bush medicine given how close she lives to the [ADDRESS] land. In any event, her evidence of the uses she makes of the [ADDRESS] land was convincing. While her affidavit in this proceeding about the [ADDRESS] land was far from clear as to her uses of that land, her oral evidence was clear and should be accepted. 355 I do not accept that [NAME_164]'s evidence should be given less weight than it otherwise might merely because it was served late, albeit with leave. [NAME_166]'s evidence, having been served with leave, should not be discounted merely because it emerged late in the course of the matter. I otherwise deal with [NAME_166]'s evidence below. 356 Further, I reject the submission (to the extent it was pressed) that evidence from some of the [NAME_2] witnesses must be discounted or given no weight merely because the witness was related in some way to [NAME_32] or [NAME_59]. Many of those who gave evidence were related in some or other way including to members of the [NAME_451]. This does not mean that the witnesses lacked independence or were doing otherwise than giving truthful evidence which is entitled to its full weight. 357 I also reject the submission that because it may be inferred that [NAME_23] intends to sell or develop the [ADDRESS] land, the evidence adduced from members of [NAME_23] and their relatives should not be given the weight to which it would otherwise be entitled. It may be accepted that these witnesses may have wished to see the potential commercial value of the [ADDRESS] land realised but, again, that does not mean that they were doing other than giving truthful evidence about the status of the [ADDRESS] land amongst [NAME_25] (noting that all of the [NAME_2] witnesses other than [NAME_309] and [NAME_274] were members of the [COMPANY_139]).

The concept of "significance" 358 It may immediately be acknowledged that the existence or otherwise of [NAME_6] in relation to land does not depend on the land being of "significance" to [NAME_30]: [NAME_8] at [181]. The NTA does not contain a criterion of "significance" to [NAME_30] as a determinant of the existence or non-existence of [NAME_6]. The criteria established by s 223 of the NTA which determine the existence of [NAME_6] are the possession of rights and interests under traditional laws and customs acknowledged and observed by the relevant [NAME_30] (in this case the communal or group rights and interests of [NAME_24] as claimed in their [NAME_6] claimant application) where those people, by those traditional laws and customs, have a connection with the relevant land or waters. 359 In the present case, the relevant land is the [ADDRESS] land. As noted, the relevant [NAME_30] are [NAME_24] as a group, as their claimant application claims rights and interests vested in that group as a whole. 360 It is apparent from the above summary of the evidence of the [NAME_2] witnesses called by both [NAME_23] and [NAME_24] that frequent reference is made to the "significance" and "cultural" or traditional "significance" or "importance" of land to [NAME_30]. In my view, when consideration is given to the evidence as a whole, it is apparent that it would be wrong to dismiss this evidence as immaterial to the question whether there are rights and interests possessed by [NAME_24] under their traditional laws and customs where, by those laws and customs, those people have a connection with the land. I reject the submissions to that effect by the respondents. Rather, I infer that when the [NAME_2] witnesses were speaking of the "significance" of the land to [NAME_30] they were in fact referring to the existence or otherwise of a traditional connection to the land; that is, a connection to the land under traditional laws and customs. Land was described as "sacred", "significant" or "important" because of continued traditional physical and/or spiritual connections to that land. By equal measure, land was described as of "no significance" or "not important" because of the lack of continued traditional physical and/or spiritual connections to that land. This meaning was made express in the evidence of [NAME_321] and [NAME_342] and I consider that, on proper analysis, it underlay the evidence given by all of the [NAME_2] witnesses. Those called by [NAME_23] considered there was no continued traditional physical and/or spiritual connections to the [ADDRESS] land. Hence, the [ADDRESS] land was "not significant". Those called by [NAME_24] applicant (which includes [NAME_18] as their representative) considered there was continued traditional physical and/or spiritual connections to the [ADDRESS] land. Hence, the [ADDRESS] land was "significant". 361 The fact that a number of the witnesses also spoke of "significant sites" (such as burials, middens, scarred trees and the like which may be registered under NSW heritage legislation) does not mean that when they said the [ADDRESS] land was of "no significance" their evidence was confined to the existence or otherwise of such sites. The witnesses spoke more broadly of the significance of the [ADDRESS] land to them as [NAME_25] and the reputation of the [ADDRESS] land amongst [NAME_25]. Because we are dealing with the existence or otherwise of the traditional laws and customs of a group of people, [NAME_24], the evidence of the reputation or status of the [ADDRESS] land amongst those people is critical. 362 These conclusions are apparent from the evidence taken as a whole but some examples will suffice. 363 The [NAME_23] resolved that the [ADDRESS] land had no cultural or heritage significance to the members of the [NAME_23] immediately after noting that they were unaware of any traditional customs or laws being observed on the [ADDRESS] land. It is clear that the concept of significance was being used to express a view about continued connection with the land under the traditional laws and customs of [NAME_24]. 364 The [NAME_199] resolved that they could not recall any use of the [ADDRESS] land for cultural purposes by local [NAME_30] and did not know of any cultural or spiritual importance of the [ADDRESS] land. Use of land, and cultural and spiritual importance of land, are means of connection with land under traditional laws and customs. Again, the concept of the importance of land expresses a view about continued connection with the land under the traditional laws and customs of [NAME_24]. 365 [NAME_39] said that [NAME_30] by knowledge and instinct know if land is significant. By this I consider that she meant that they know if [NAME_30] are connected to the land in some way by their traditional laws and customs. 366 [NAME_134] said that all land was significant to [NAME_30] in some way. By this I consider that he meant that [NAME_30] feel some sense of connection to their traditional lands irrespective of considerations made relevant by the NTA such as the continued existence of substantially uninterrupted traditional laws and customs and connection to land and waters by those laws and customs. 367 [NAME_178] also said all land was sacred in some way to [NAME_30] but said if a place was "really sacred" you would know as an [NAME_2] person. By this I understand [NAME_180] also to have meant that [NAME_30] continue to feel connected in some way to their traditional lands irrespective of the existence of any rights or interests arising under traditional laws and customs in connection with those lands. 368 [NAME_195] made the same point - every centimetre of Australia is important to [NAME_30] to some extent. [NAME_198] nevertheless used the concept of a "dead zone" to describe land to which [NAME_30] no longer felt a connection because of the disruption of their traditional lives caused by European colonisation. She felt the [ADDRESS] land was not of significance to [NAME_30]. In the context of her evidence she must be understood to have meant that in her view [NAME_30] no longer felt connected to this land in any traditional sense. 369 [NAME_253] said all land has significance but particular areas have additional significance. She considered that she had an unbroken connection to the entire South Coast area but considered the [ADDRESS] land had no cultural significance. By this I understood her to mean that she felt no particular traditional connection to the [ADDRESS] land. 370 [NAME_281] also spoke of all land and water in Australia being significant to [NAME_30] but that some areas were of higher significance. These latter areas were areas where [NAME_30] had strived to continue their traditional activities and connection. He considered the [ADDRESS] land was not such a place and that it thus had no cultural significance. 371 [NAME_443] had also been taught that all land is important to some degree but significant land is land used by the people for activities which form part of their social structure. He had never been told of the [ADDRESS] land having any significance and thus considered there was no ongoing traditional connection with the [ADDRESS] land. 372 [NAME_160] spoke of "traditional connection" to land and expressed the view that [NAME_405]'s activities on the [ADDRESS] land had nothing to do with such a traditional connection. He said the [ADDRESS] land was not significant and if it was he would have known about it from the old people and the [ADDRESS] land would have been protected. Again, this is a concept of significance which involves the notion of continued traditional connection with the land. 373 [NAME_219] spoke of sites of significance to [NAME_121] people. She considered the [ADDRESS] land had no significance particularly as it was in a built up area. 374 [NAME_53] considered the [ADDRESS] land had no cultural significance. 375 [NAME_269] said the [ADDRESS] land had no [NAME_121] significance. She described [NAME_121] significance as places where her people had travelled and camped. 376 [NAME_59] said no one had ever mentioned the [ADDRESS] land as having any significance and he considered it had no significance. 377 [NAME_309] said no one had talked to her about the [ADDRESS] land having any significance. 378 [NAME_56] said no one had ever talked to her about the [ADDRESS] land even though they used it as a short cut to get to the tip. 379 [NAME_274] thought the [ADDRESS] land might be somewhere [NAME_30] merely walked through but did not camp or conduct ceremony on. He said the [ADDRESS] land had no [NAME_121] significance. 380 [NAME_319] considered the [ADDRESS] land to be just another bit of [NAME_22] as he had not been told anything about it. He said that places of significance were those places still bound into the customs, cultures and traditions of [NAME_30]. He explained that "significance" was an important concept concerning the cultural protocols and cultural connections and religions that connected [NAME_30] with places. He described the [ADDRESS] land as not being an ongoing part of connecting people to country. 381 [NAME_19] considered the [ADDRESS] land was significant because it contained grasses and reeds which could be used for weaving and weaving was about connection to land and each other. 382 [NAME_122] considered that the [ADDRESS] land was "very important" to them and always had been. 383 [NAME_164] described the [ADDRESS] land as an important place and as significant as it was a traditional hunting and camping site. 384 I consider that all such descriptions of the status of the [ADDRESS] land are relevant to the question of the existence or otherwise of traditional laws and customs which involve a connection to the [ADDRESS] land. 385 Accordingly, I do not accept the submission that the evidence of the witnesses called by [NAME_23] did not deal with the issue of the existence or not on [NAME_6] in relation to the [ADDRESS] land. I do not accept that the evidence of the significance of the [ADDRESS] land or otherwise was irrelevant. As [NAME_321] said, on the evidence in the present case, it is apparent that the concept of the significance of land, to [NAME_24], is integral to their continued traditional connection with land. This is what I consider they meant when they spoke of land being of [NAME_121] significance or not. 386 Further, I do not accept that the various ways in which the [NAME_2] witnesses described their status (such as registered traditional owners under the ALRA, custodians, elders) or described their understanding of the functions of [NAME_23] and the effect of the ALRA and NTA undermines the cogency of their evidence about the relationship of [NAME_24] with the [ADDRESS] land. It is unsurprising that many of the witnesses were confused about the interrelationship between the legislation and the functions of [NAME_23]. They were nevertheless capable of speaking about the relationship of [NAME_24] with the [ADDRESS] land. The confusion about legal rights and concepts in no way undermined the cogency of their evidence. As discussed above, the evidence adduced by [NAME_23], understood in the context of the evidence as a whole, was unequivocally to the effect that they did not believe the [ADDRESS] land was of significance in a [NAME_121] sense by which it must be understood that they did not consider there to be any traditional laws and customs by which [NAME_24] had a present connection with the [ADDRESS] land. Further, and contrary to the submissions for [NAME_24] and [NAME_18], I do not accept that the evidence from the [NAME_2] witnesses called by [NAME_23] failed to provide a basis for the assertion of traditional knowledge. It was apparent that all of the evidence involved knowledge (or, more to the point, the lack of knowledge) based on the oral tradition of younger people being taught about their culture by the telling of stories by older people, particularly (but not exclusively) by older family members. This is traditional knowledge. 387 It was submitted for [NAME_24] and [NAME_18] that the mere fact that a tract of land was not mentioned by an elder does not mean that [NAME_6] does not exist in relation to that land. At the level of hypothesis, this proposition may be accepted. But in the present case what we have from [NAME_23] is cogent evidence of a lack of shared or group knowledge of anything - be it use, artefact, story or otherwise – by which there remains current any connection with the [ADDRESS] land under traditional laws and customs acknowledged and observed by [NAME_24]. The number of [NAME_25] from whom [NAME_23] called evidence (be it direct or indirect), their age profiles, and their status by reputation as knowledge holders of [NAME_24], leads me to the conclusion that this is not a case of mere failure to mention any traditional connection with the [ADDRESS] land by elders. As discussed further below, the evidence adduced by [NAME_23] leads to the inference of no continued acknowledgement and observance of any traditional law and custom by which there is a current connection with the land as required by s 223(1)(a) of the NTA.

The assertion of rights and interests in [NAME_127] country as a whole 388 It will be apparent from the discussion above that many of the [NAME_2] witnesses, including a number of those called by [NAME_23], asserted rights and interests in the whole of the claim area including the [ADDRESS] land. 389 I do not consider that the evidence given by the [NAME_2] witnesses called by [NAME_23] to the effect that they could exercise rights under traditional laws and customs in relation to all of [NAME_127] traditional country can be taken to indicate that [NAME_24] by their traditional laws and customs continue to have a connection with all land and waters within the claim area including, in particular, the [ADDRESS] land. Taken as a whole the evidence indicates to the contrary. For example: (1) [NAME_31] said she would not go to the [ADDRESS] land for any traditional purposes because the [ADDRESS] land seemed sick to her; (2) [NAME_131] had never heard of any traditional activities taking place on the [ADDRESS] land at any time; (3) [NAME_160] described [NAME_122]'s use of the [ADDRESS] land as having nothing to do with a traditional connection to the [ADDRESS] land. He too had never heard of any traditional activities taking place on the [ADDRESS] land nor of any stories relating to the [ADDRESS] land; (4) [NAME_178] had never heard of the [ADDRESS] land as being sacred or it being an area where any traditional activities had taken place; (5) [NAME_45] said he would know if there was any significance to the [ADDRESS] land but he did not; (6) [NAME_195] believed that after the forcible displacement of [NAME_25] from their land they lost connection to some of their land which became dead zones and that this explained why the [ADDRESS] land was not of significance to [NAME_30]; (7) [NAME_253] had never heard of the [ADDRESS] land having any cultural significance; (8) [NAME_219] said she would have known if the [ADDRESS] land had any significance from her father who was a traditional elder but had never heard of the [ADDRESS] land having [NAME_121] significance; (9) [NAME_53] said that she had no knowledge of any cultural significance of the [ADDRESS] land because it had never been discussed or contemplated and if there was something important on the [ADDRESS] land (and, I infer, if the [ADDRESS] land was important) she would have known about it; (10) [NAME_269] had never heard of the [ADDRESS] land having any [NAME_121] significance; (11) [NAME_281] was not aware of any traditional activities having taken place on the [ADDRESS] land and did not recall any stories about the [ADDRESS] land having any cultural significance and believed that if the [ADDRESS] land did have any significance it would have been raised before this case; (12) [NAME_59] use to drive past the [ADDRESS] land when he was a kid but had never heard of anything about the [ADDRESS] land and that if anyone had known anything about the [ADDRESS] land he would have known about it; (13) [NAME_56] used to use the [ADDRESS] land as a shortcut but no one had ever told her the [ADDRESS] land was used for any [NAME_2] activities. If it had been she would have been told about it growing up; (14) [NAME_274] believed that nothing of [NAME_2] significance had ever occurred on the [ADDRESS] land and if used at all by [NAME_30] would have been just to walk through to get to other sites; (15) [NAME_319] had never heard anything about the [ADDRESS] land when growing up but had been taken to numerous significant sites and to him the [ADDRESS] land was just a [NAME_4] bit of [NAME_22]; and (16) [NAME_443] considered there was no traditional connection with the [ADDRESS] land due to the historical displacement and migration of [NAME_2] peoples and that the [ADDRESS] land was not known to be significant amongst traditional knowledge holders. 390 The evidence that a number of the [NAME_2] witnesses called by [NAME_23] gave about the right to access and take resources from the [ADDRESS] land involved generalised assertions without any identification of a traditional law and custom giving rise to the asserted rights in question in relation to the [ADDRESS] land. The evidence appeared to be based on a belief that because the whole of the claim area is considered to be traditional [NAME_127] country [NAME_126] must have the right to access and take resources from anywhere and everywhere in the claim area irrespective of the considerations made relevant by the NTA including substantial continuity of connection under traditional laws and customs with the land in question. The evidence of this apparent belief does not have the effect of displacing the evidence from the very same people that the [ADDRESS] land was of no significance in a [NAME_121] sense – evidence which speaks of substantial discontinuity of traditional connection with the [ADDRESS] land. 391 There is another important aspect to the evidence of the [NAME_2] witnesses called by [NAME_23]. A consistent theme of that evidence (as apparent from the summary above) is that none of the witnesses had been told anything about the [ADDRESS] land by their elders and, until this case, had never heard of anyone suggesting that this land had any significance in a [NAME_121] sense. The essence of traditional laws and customs is that they are handed down from generation to generation, the elder instructing the younger, by oral means. While the evidence disclosed that there would be variable levels of traditional knowledge amongst members of the group depending on numerous circumstances there must be a continued sufficient unity of belief amongst group members for it to be said that there remain traditional laws and customs which are acknowledged and observed by the group. The importance to the continuity of traditional laws and customs of the sharing of knowledge across the members of the group was stressed by many of the witnesses for [NAME_23]. The evidence included the following: (1) [NAME_31] gave evidence that she had asked numerous people in her community about the [ADDRESS] land but none of them knew of it having any significance in circumstances where it was very important for knowledge to be passed on, a duty she considered important and which she fulfilled; (2) [NAME_131] considered it his responsibility to share knowledge such as stories and dances; (3) [NAME_160] thought true knowledge holders knew that the [ADDRESS] land was of no significance and if it was of any significance the old people would have told them so; (4) [NAME_195] explained how old people shared their knowledge to ensure the continuity of traditional laws and customs and said they all just knew what their ancestors did from their stories; (5) [NAME_53] said every family had its designated story tellers to whom knowledge is passed to; (6) [NAME_319] said he held the stories of his father and grandfather and was now the keeper of those stories and explained how it was necessary for knowledge of culture to be shared and passed on; and (7) [NAME_443] said there was a particular way knowledge was orally disseminated amongst his people and that traditional knowledge had to be passed on within a family, otherwise there would be no body of tradition. He said that it was a law that [NAME_126] must strictly all hold, maintain and preserve the consistent body of knowledge of the traditions and customs of the society.

[NAME_23]'s evidence 392 Taking the evidence adduced by [NAME_23] as a whole I consider that the evidence proves, on the balance of probabilities, that [NAME_24] by their traditional laws and customs do not have a continuing connection with the [ADDRESS] land. The unanimous evidence of the [NAME_2] witnesses that the [ADDRESS] land has no significance, understood in the context of their evidence as a whole and what they meant by "significance", demonstrates that insofar as the [ADDRESS] land is concerned there has been a profound discontinuity of connection. I consider that it is apparent from the evidence that there is a society, be it called [NAME_127] or [NAME_24], which is unified in its acknowledgement and observance of certain traditional laws and customs which include the sharing of knowledge within a family and within the group more generally. The evidence also suggests that by those traditional laws and customs those people have a continuing connection with some land, including for example land such as Glasshouse Rocks. But when it comes to the [ADDRESS] land three matters stand out in [NAME_23]'s evidence: (1) the consistency of views that the [ADDRESS] land has no significance to them; (2) the fact that the [NAME_2] witnesses did not merely believe that the [ADDRESS] land was not significant, but also were adamant that they had never been told or heard of the [ADDRESS] land having any significance in circumstances where if it had any significance they insist they would have known about it; and (3) the efforts made by [NAME_31] in particular to ascertain the views of the wider community about the potential significance of the [ADDRESS] land which yielded the same result that none of those canvassed believed the [ADDRESS] land to be of any significance or had even heard of the [ADDRESS] land being of any significance. 393 In an oral society, where knowledge of traditional laws and customs is shared by oral means from generation to generation, the absence of any knowledge of the [NAME_2] witnesses called by [NAME_23] about the [ADDRESS] land having any significance to their people is indicative of a discontinuity of connection between themselves and the [ADDRESS] land under their traditional laws and customs. This discontinuity is explicable on the evidence. [ADDRESS] land is in the township of [NAME_22] from which [NAME_30] were forcibly displaced by encroaching European colonisation. [NAME_30] were forced into missions and subjected to a permit system to control their movements. [NAME_30] and their culture were subjected to forcible suppression. [NAME_30] were subjected to racism and thus avoided the [NAME_22] township. The areas surrounding the [ADDRESS] land were subjected to urban encroachment by a tip, the rear nine holes of the golf course, and the industrial development. 394 For these reasons, if the totality of the evidence was that adduced by [NAME_23], including the oral evidence given by the witnesses they called, then I would be satisfied that, on the balance of probabilities, there was no [NAME_6] in relation to the [ADDRESS] land because [NAME_24], by their traditional laws and customs, had not continued to have a connection with that land. 395 The evidence, however, is not confined to that adduced by [NAME_23]. The evidence adduced by [NAME_24] must also be considered.

[NAME_24]'s evidence 396 I accept the submission for [NAME_24] and [NAME_18] (which was not disputed by [NAME_23]) that the evidence indicates that there is a group of people called the [NAME_127] or [NAME_24] who continue to be unified in their acknowledgement and observance of certain traditional laws and customs by which they have an ongoing connection with some areas of land. Those traditional laws and customs include the method of and need for the transmission of knowledge by elders to younger people (by the telling of stories), the need for permission to access and use certain land and the obligations to protect certain land. The issue in the present case is not the existence of a society or of traditional laws and customs. It is the continued acknowledgement and observance of traditional laws and customs by which there is a connection with the [ADDRESS] land. The evidence is to be considered in that context.

[NAME_19] 397 [NAME_393]'s evidence does not identify any use of the [ADDRESS] land by her or her family. Her evidence about past uses is ambiguous in its references to the area in and around [ADDRESS]. In particular, I infer that in the past the [ADDRESS] land would not have been an isolated piece of urban bushland. It would have been a part of a larger area of bushland including the land which now comprises the rear nine holes of the golf course and the industrial development. In my view, [NAME_393]'s evidence should be understood as describing this area generally as one in which her family camped, fished and walked but I do not accept her evidence as proving that any of these activities took place on the [ADDRESS] land itself. Insofar as the activity of fishing is described, it must relate to the beaches and lakes which do not adjoin the [ADDRESS] land. [NAME_393]'s evidence of having been told by an elderly [NAME_2] man of the coastal trails of the [NAME_126] is vague. There is no information as to the identity of the man in question. There is no suggestion that the men's and women's places mentioned are on or in the vicinity of the [ADDRESS] land. The location of the trails themselves remains unclear. [ADDRESS] land is not so close to the coast that it would readily be inferred that it formed part of any coastal trail. 398 The connection to the [ADDRESS] land which [NAME_393] identified appears to be on two bases. The first basis is that the [ADDRESS] land contains reeds which can be used for weaving. [NAME_393] did not suggest in her affidavit, however, that she or anyone she knew used the [ADDRESS] land to obtain reeds for weaving. In her oral evidence she said relatives of hers did use the [ADDRESS] land to gather resources but she gave no information about the identity of these relatives. The evidence remained at the level of mere assertion without any detail as to the identity of the relatives, what resources they gathered, when they did so or whether they continued to do so. It was also difficult to reconcile this part of [NAME_393]'s evidence with her evidence that people stayed away from the [ADDRESS] land due to doubts about its status. The second basis is that the [ADDRESS] land was part of an area which [NAME_25] would drive past on their journeys up and down the coast and that they would stop and wander around in the bush in this area. Her evidence, however, did not enable it to be inferred that the bush in question was on the [ADDRESS] land. 399 I do not accept the characterisation of [NAME_393]'s evidence as proposed by [NAME_24] and [NAME_18]. She does not say that the [ADDRESS] land was used as a pathway, water source and camping area by her [NAME_142]. She refers to the land "in and around [ADDRESS]" and the "area generally" which is not specific to the [ADDRESS] land itself, particularly having regard to the fact that before the development of the golf course and the industrial area I infer the [ADDRESS] land would not have appeared as it does now – as an isolated piece of urban bushland surrounded by development – but would have been part of a larger area of bushland. [NAME_393]'s evidence of her [NAME_142] collecting shells cannot relate to the [ADDRESS] land which is located well back from the beach. [NAME_393] refers to having spoken to people with a connection to the land "in and around [ADDRESS]" but provides no explanation of who these people are or what their connection is. She also does not say she was taught about grasses on the [ADDRESS] land used by [NAME_25]. She says that she was taught about weaving. She says that she has a connection through her mother with the land "in and around [ADDRESS]" because of weaving but does not say that she or her family in fact took (or continue to take) resources from the [ADDRESS] land. She says it is important to protect the [ADDRESS] land because it has grasses used for weaving on it but does not say, as is suggested, that she was taught this fact by her elders. 400 I do not consider this evidence a sufficient basis to infer that [NAME_24] have a continuing connection to the [ADDRESS] land by their traditional laws and customs. Further, I do not consider that this evidence sufficiently undermines the weight of the evidence adduced by [NAME_23] to the effect that [NAME_24] no longer have a connection to the [ADDRESS] land by their traditional laws and customs, the [ADDRESS] land being of no significance to them in a traditional sense. The evidence of [NAME_393] is too ambiguous, too vague and too [NAME_4] to have the effect of casting sufficient doubt on the evidence adduced by [NAME_23] so as to undermine the effect of that evidence as discharging the [NAME_23]'s burden of proof. If the [ADDRESS] land had the status attributed to it by [NAME_393] amongst [NAME_24] as a group unified to a sufficient extent in their acknowledgement and observance of traditional laws and customs then I consider the fact of that status would have been known to at least some of the [NAME_2] witnesses called by [NAME_23]. I do not consider their lack of knowledge to be a result of mere differences in knowledge of various members of the group. Their lack of knowledge, combined with the vagueness and generality of [NAME_393]'s evidence, suggests the lack of acknowledgement and observance of traditional laws and customs by [NAME_24] as a group by which there is a connection to the [ADDRESS] land.

[NAME_122] 401 It is material that [NAME_405]'s first affidavit, which was made in support of [NAME_24]'s [NAME_6] claim, made no mention of the [ADDRESS] land, any activities she carried out on the [ADDRESS] land or, indeed, the [NAME_22] area at all. The affidavit instead focused on her physical and spiritual connection with the land between [NAME_170], to the south of [NAME_22]. In her second affidavit and oral evidence [NAME_405] gave evidence of activities she carried out on the [ADDRESS] land. As I have said, I accept that [NAME_405] was giving her evidence honestly. That evidence does not persuade me, however, that [NAME_405]'s activities evidence an ongoing connection with the [ADDRESS] land of [NAME_24] under their traditional laws and customs for a number of reasons: (1) As noted, in the context of her first affidavit, the purpose of which was to support [NAME_24]'s [NAME_6] claim and which was prepared with legal assistance from [NAME_18], it would have been important for [NAME_405] to identify all rights and interests under traditional laws and customs by which [NAME_24] continued to be connected to land within the claim area. [NAME_405] identified such activities particularly in relation to the area from Mystery Bay to [NAME_170] but made no mention of the [ADDRESS] land or the [NAME_22] area in circumstances where she lives in close proximity to the [ADDRESS] land and does in fact use it as occasion demands to collect wood, native cherries, ochre and charcoal. This supports the observation of [NAME_160] that [NAME_405]'s activities on the [ADDRESS] land do not have their foundation in traditional laws and customs the normative content of which unifies [NAME_24]. As [NAME_162] put it, "it's just her doing it". (2) Traditional laws and customs which give rise to rights and interests in land must have normative content. They must establish behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society: Akiba v Queensland [2010] FCA 643; (2010) 204 FCR 1at [171]-[173]. While the requirement for unity, like the requirement for continuity, is not absolute, it must be able to be said that the rights and interests possessed under the traditional laws and customs in connection with land are acknowledged and observed by [NAME_24]. On the evidence in the current case: (a) [NAME_405] and her immediate family, who live in close proximity to the [ADDRESS] land, are the only people making use of the [ADDRESS] land. (b) No other member of [NAME_24] claim group gave evidence of having any knowledge of the use [NAME_405] and her immediate family were making of the [ADDRESS] land. To the contrary, all of the [NAME_23] witnesses asserted they were unaware of any [NAME_2] person making use of the [ADDRESS] land. (c) [NAME_405] explained her use of the [ADDRESS] land by noting that all the stuff she collects is from the [ADDRESS] land because it is close to her – or, as she put it, it is her "own backyard". I infer that her use of the [ADDRESS] land is opportunistic in the sense that she uses it because of its physical proximity to her home, not in the exercise of rights and interests under traditional laws and customs acknowledged and observed by [NAME_24]. By this I do not mean that opportunism and traditional connection are necessarily mutually exclusive. But on the evidence in the present case the opportunistic uses of the [ADDRESS] land by [NAME_405] do not evidence a continuing traditional connection of [NAME_24] with the [ADDRESS] land. (d) In contrast to her evidence about [NAME_170] and other places [NAME_405] did not suggest that there were any particular stories or ceremonies or activities of her ancestors on or in the vicinity of the [ADDRESS] land, other than a generalised assertion that they would have camped there and walked from there to [NAME_120]. [NAME_405] did not identify when these activities would have occurred and whether or not they were in the more recent or very distant past. (e) I infer that [NAME_405]'s daughter, [NAME_107], who was at the meeting of the [NAME_35] joint boards of management, did not raise any issue about the [ADDRESS] land having significance by reason of her immediate family's use of the [ADDRESS] land because the uses did not strike [NAME_452] as being of any cultural or spiritual significance, as opposed to opportunistic given the proximity of the [ADDRESS] land to where they live. [NAME_452] considered the activities to be an exercise of rights and interests under traditional laws and customs then it could have been expected she would have raised the issue at the meeting given that was the specific purpose of [NAME_39] attending the meeting to inquire about any potential significance of the [ADDRESS] land. 402 The isolated nature of [NAME_405]'s activities in relation to the [ADDRESS] land (in the sense that she apparently had not informed anyone outside her immediate family of the uses she made of the [ADDRESS] land and that they were not known to anyone outside her immediate family), the fact that she made no mention of the [ADDRESS] land or the [NAME_22] area in her first affidavit when identifying traditional activities, together with the fact that her daughter [NAME_107] did not mention the activities when specifically asked about the [ADDRESS] land at the [NAME_35] joint boards of management meeting, support [NAME_160]'s characterisation of her activities on the [ADDRESS] land as not being the expression of any traditional connection of the South Cast People with the [ADDRESS] land.

[NAME_409] 403 As noted, [NAME_412] made no mention of the [ADDRESS] land or [NAME_22] in his affidavit. His evidence provided support for the inference that [NAME_24] were a group united in their acknowledgement and observance of traditional laws and customs, but nothing in his evidence suggested that by those laws and customs the group had continued to have a connection with the [ADDRESS] land.

[NAME_164] 404 [NAME_166]'s evidence is to the effect that when he was six or seven (that is, in the 1950s) he camped on the [ADDRESS] land three or four times with his elders and they were taught lore and respect for it, involving men's business, the spirit world and the [NAME_416] or kadiche man who [NAME_95] people call the "bone pointer" from whom they were protected as they were not breaking the law. He said his elders would have camped more regularly on the [ADDRESS] land. He said [NAME_453] took bark from the trees on the [ADDRESS] land which he would boil up and then use to treat his fishing nets. 405 [NAME_166] was giving evidence about events that occurred sixty years ago when he was six or seven years old. I find it difficult to accept that [NAME_166] was able to recall the location of the camp sites used when he was a child of six or seven years, particularly given that the surrounding land (now used for industrial purposes and the rear nine holes of the golf course) had not been developed at the time of his camping activities. In other words, the land would not have appeared in the 1950s as it does today, as an isolated area of urban bushland surrounded by development, including the golf course. It may be inferred that the bushland in the 1950s was more widespread than is currently the case (or, indeed, has been the case since the development of the rear nine holes of the golf course in the 1960s and the industrial land in the 1970s). In these circumstances, I consider there must be real doubt about [NAME_166]'s capacity to identify the land on which he camped with his elders when he was six or seven years old. That activity, in my view, may or may not have taken place on the [ADDRESS] land, as opposed to somewhere in the vicinity of the [ADDRESS] land. 406 Irrespective of the quality of [NAME_166]'s recollections, given that none of the many [NAME_30] whose evidence was adduced by [NAME_23], nor any of the [NAME_30] to whom [NAME_31] spoke about the [ADDRESS] land, had heard mention of any camping on the [ADDRESS] land, I am simply unable to accept [NAME_166]'s evidence of camping on the land or that his elders would have camped on the [ADDRESS] land on many more occasions. Nor can I accept that [NAME_166] was told by his [NAME_222] and others that the [ADDRESS] land was a traditional camping area. Had the area been a regular camping spot for [NAME_30] at any time in the years before, during or after [NAME_166]'s childhood then it would be reasonable to expect that someone other than [NAME_166] would have been aware of that fact. The uniform lack of awareness of the matters asserted by [NAME_166] amongst [NAME_24], and the lack of evidence from those who would have been expected to have known about such activities such as [NAME_171], the son of [NAME_174], leads to a number of inferences. 407 First, as I have said, [NAME_166]'s supposition that his elders would have camped on the [ADDRESS] land more than three or four times and that the [ADDRESS] land was a traditional camping site cannot be accepted. His further assertion in oral evidence that the [ADDRESS] land was the "main" camping area for [NAME_30] in [NAME_22] also cannot be accepted. It is inconsistent with all of the other evidence of [NAME_30] who would be expected to know the main camping areas of their people. The fact that [NAME_166] was prepared to make this assertion in his oral evidence that the [ADDRESS] land was the main camping area for [NAME_30], moreover, casts some doubt on the credibility of his evidence as a whole. It reinforces my view that the effect of his evidence, that he clearly recalled camping on the [ADDRESS] land and what he was told there when he was six or seven years old, stretches the bounds of credulity. 408 Second, given how doubtful it is that [NAME_166] would have been the only child with the elders on the occasions to which he has referred, it may be inferred that the events in question have not been seen by any other attendee as having the same significance as [NAME_166] has placed on them. Had they had such significance then it would be reasonable to expect that someone within [NAME_24] would have come forward either to give evidence corroborating the evidence of [NAME_166] or to inform [NAME_31] who was actively seeking information from her community about the [ADDRESS] land. The fact that no one has come forward about the [ADDRESS] land also tends to reinforce the view that [NAME_166]'s recollection may not be as accurate as he would believe as to the location of the events to which he referred. 409 Third, as was apparent from the evidence of [NAME_342], [NAME_166] himself appears never to have mentioned these events to his family or to have suggested before this case that the [ADDRESS] land was of any significance as a result of the events to which he referred in his affidavit. While he said he had shared his knowledge of the [ADDRESS] land with others, as [NAME_23] pointed out, no-one had come forward to [NAME_31] or to give corroborating evidence. [NAME_342], [NAME_166]'s relative by marriage, said he had been told "many things by [NAME_147]" but not anything about the use made of the [ADDRESS] land. 410 Further, I do not accept [NAME_166]'s other supposition that [NAME_454] would have told [NAME_274] not to go on the [ADDRESS] land as [NAME_193] was not a [NAME_130]. If [NAME_193] had been told anything to that effect then [NAME_193] would have known the [ADDRESS] land to be of some significance to the [NAME_127], a proposition with which [NAME_193] plainly disagreed. [NAME_166]'s willingness in his oral evidence to engage in this supposition about events of which he had no direct knowledge also tends to undermine the credibility of his evidence as a whole, and particularly about events that took place some six decades in the past when he was only six or seven years of age. 411 Further, [NAME_166] accepted, as I consider must be the case, that [NAME_174] would have passed down to his own son, [NAME_171], knowledge of fishing and camping areas in [NAME_22]. [NAME_171] is the 7th respondent. [NAME_24] did not call [NAME_171] to give evidence. While there was evidence that [NAME_171] was also a member of [NAME_23] this does not alter the fact that he is a party to the proceeding whom it could be expected [NAME_24] would have called to give evidence if the evidence would have supported the case. The fact they did not do so without any explanation supports the inference that [NAME_171]'s evidence would not have assisted the case of [NAME_24]. This tends also to support the inference that [NAME_166] was not able to accurately identify the [ADDRESS] land as the land on which the events referred to in his affidavit took place. 412 Further, [NAME_166] gave evidence that "we certainly got a lot of our food off [ADDRESS]". Given that his recollection is only to the effect that he camped on the [ADDRESS] land three or four times, this evidence strikes me as an exaggeration. Similarly, he gave evidence that he was told lore and how to practice it and how to hunt and gather food from [ADDRESS]. I consider it unlikely that a group of [NAME_2] elders would have taught such things to [NAME_166] alone. There must have been other children or [NAME_140] men who were taught these things at the same time and in the same place as [NAME_166]. Had this occurred as [NAME_166] recollects I would have expected that the knowledge would have been far more widely disseminated than is obviously the case. As [NAME_342] said, in order for there to be a body of law and custom, knowledge must be disseminated. While I accept that the distribution of knowledge may be uneven and focused on family lines, this case (or [NAME_166]'s evidence) presents an extreme example. No one, apart from [NAME_166], has suggested that there was camping, hunting and gathering on the [ADDRESS] land by elders in the 1950s who used the experience to teach men's business to [NAME_140] males. Had the [ADDRESS] land truly been used for that purpose I find it inconceivable that the knowledge would be held by [NAME_166] alone and that there would be no corroborating evidence, even in the form of hearsay, about such events. The consistent evidence of [NAME_24] called by [NAME_23] that they had never heard of the [ADDRESS] land having any significance strongly suggests the lack of an ongoing traditional connection with the [ADDRESS] land (that is, a connection under traditional laws and customs). 413 Further, [NAME_166] gave evidence, which I do accept, that a lot of knowledge of [NAME_24] had been lost. He also said the development of the golf course had virtually put a stop to anyone visiting the [ADDRESS] land. I would infer from this that the development of the rear nine holes of the golf course in the 1960s would have had a dramatic effect on the surrounding land by virtue of the clearing of trees which would have been necessary to enable that land to be used for golf. [NAME_166] insisted the golf course development stopped the use of the [ADDRESS] land, it seems far more likely to me that it stopped the use of the golf course land which was itself Crown land. [ADDRESS] land remained as unfenced bushland until some part of it was used as a tip. In this latter regard, I am unable to accept the suggestion (to the extent it was made) that the whole of the [ADDRESS] land was used as a tip. The view of the [ADDRESS] land did not support this inference. I accept some part of it, adjoining the industrial development, was used as a tip but its essential character as unfenced bushland remained. In any event, had the [ADDRESS] land truly been the "main" camp site in [NAME_22] for [NAME_30], then that circumstance could have continued irrespective of the golf course development as the [ADDRESS] land remained accessible and unfenced. It is obvious that no such use did continue. This fact also reinforces my view that [NAME_166]'s recollections about the uses made of the [ADDRESS] land when he was a child of six or seven are unreliable. 414 For these reasons I do not consider that [NAME_166]'s evidence undermines the effect of the evidence adduced by [NAME_23] to the effect that there are not traditional laws and customs by which [NAME_24] have a continuing connection to the [ADDRESS] land. 415 I have also considered the cumulative effect of the evidence adduced by [NAME_24], including the fact of registration of their [NAME_6] claim, but remain of the view that it does not cast sufficient doubt on [NAME_23]'s case that, on the balance of probabilities, there is no [NAME_6] in relation to the [ADDRESS] land because there is no continuing connection with that land under the traditional laws and customs of [NAME_24]. 416 As to the registered [NAME_6] claim making the claim at least arguable, the fact that the claim is over such a vast area means that it can be given little weight when considering the issue of the traditional connection of [NAME_24] over an individual parcel of land which finds no mention in the material supporting the claim. The same conclusion applies to the fact that [NAME_18] has assessed the claimant application to have merit. Where, as here, the claimant application is over such a vast area and the assessment of merit related to the overall area and not individual lots, the fact that [NAME_18] consider the claimant application to have merit says nothing in particular about the [ADDRESS] land. 417 I do not accept that the fact of the earlier [NAME_6] claimant application should lead to any different conclusion. That claim was also over a large area of land. None of the evidence in support of that application related to the [ADDRESS] land specifically. There is no inconsistency between [NAME_31] and [NAME_59] having been applicants for the [NAME_6] claimant application (the area of which included the [ADDRESS] land) and having given evidence in this proceeding to the effect that they have. [NAME_6] claims are often made and registered over large areas without regard to individual lots. The evidence in support of the making of the [NAME_6] claimant application does not relate to the [ADDRESS] land specifically. To the extent that [NAME_39] said at the time that she believed [NAME_6] had not been extinguished over any part of the claim area, it must be recognised that she was dealing with a large area of land and could not possibly have had knowledge of the status of each and every individual lot within the claim area. As I have said, the submission that [NAME_39] and her husband have "cynically tailored their evidence" so that [NAME_23] could obtain the benefit of its fee simply ownership of the [ADDRESS] land is rejected. I consider them both to have given truthful evidence. 418 Further, I do not accept that Mason v Tritton (1994) 34 NSWLR 572, in which the [NAME_33]'s son asserted a traditional right to take abalone in defence of a criminal prosecution, is material. Leaving aside s 91 of the Evidence Act (that evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding), the area in question concerned [NAME_273] not [NAME_22] and the Court did not accept the evidence of a traditional right to take abalone. [ADDRESS] land is located inland and has no frontage to any area which might be the subject of fishing activities. 419 [NAME_24] and [NAME_18] referred to the observations in [NAME_27] at [87] that: It is self-evident that a community or group of [NAME_2] persons may have an ongoing connection with land, even though their access to, or use of, that land is restricted or spasmodic; that connection may be mainly spiritual rather than physical; it may have evolved over time to a less specific use of all or many parts of that land; it may not involve physical access to each and every part of the land…At least in each contested non-claimant application for the determination of [NAME_6], it is necessary to bear in mind that the particular area of land in question may be part only of a larger area of land over which there may be existing [NAME_6] rights and interests. That is a matter to be determined on the facts of each case. 420 These observations are material to the present case. I have considered the totality of the evidence. I have considered the location of the [ADDRESS] land and its relationship to its surrounds and to other areas where there is evidence which indicates an arguable case for continuity of connection (assisted by a view of the [ADDRESS] land and its surrounds). On the facts of the present case, however, I am persuaded to the requisite standard of the balance of probabilities of the lack of traditional laws and customs of the group known as [NAME_24] or the [NAME_127] by which there is a continuing connection to the [ADDRESS] land. 421 I otherwise accept the submissions for [NAME_23] that: (1) Material weight should be given to the various resolutions of [NAME_23] and the [NAME_35] joint boards of management as: (a) the attendees at the meetings were [NAME_25]; (b) the meetings involved substantial numbers of [NAME_25] (29 members of [NAME_24] in total); (c) the attendees at the [NAME_35] joint boards of management meeting were described by [NAME_53] as "awesome knowledge holders"; and (d) if any of the attendees had been aware of any continuing traditional connection of [NAME_25] with the [ADDRESS] land, be it by use, by culture or matters spiritual, it could be expected that they would have put [NAME_31] on notice of that connection. (2) Substantial weight should be given to the consistency of the evidence of the [NAME_2] witnesses called by [NAME_23] to the effect that they had never heard of the [ADDRESS] land having any significance to [NAME_30]. As explained, I consider that this must be understood as the witnesses explaining that they had not heard of, and were personally unaware of, any traditional connection of [NAME_24] to the [ADDRESS] land. (3) Substantial weight should be given to the dislocating effects of European colonisation of the [NAME_22] area and the displacement of the local [NAME_30] to reserves, as well as the urban development in the vicinity of the [ADDRESS] land which took place in the 1960s (the golf course rear nine holes) and 1970s (the industrial development) which must have substantially changed the character of the area. These events gave rise to the circumstances by which [NAME_24], on the evidence, lost their traditional connections to some (but by no means all) lands in [NAME_22]. On the whole of the evidence, the [ADDRESS] land is one area where traditional connection was not sustained, at least after the 1960s and the golf course development. (4) The evidence adduced by [NAME_24] is weak compared to that adduced by [NAME_23] in that: (a) neither of the two affidavits lodged in support of the [NAME_6] claim referred to any land in the vicinity of the [ADDRESS] land; (b) [NAME_393]'s evidence is vague and generalised; (c) [NAME_405]'s evidence of current use of the [ADDRESS] land stands alone and in the face of the evidence of all other [NAME_2] witnesses who had never heard of any such uses until this case. [NAME_405]'s evidence, considered as a whole and given the location where she lives, does not support the inference that the use she makes of the [ADDRESS] land in an exercise of rights under traditional laws and customs acknowledged and observed by [NAME_24]. This is also all the more so given that her daughter, [NAME_107], made no mention of the uses when the issue of the [ADDRESS] land was specifically raised at the meeting of the [NAME_35] joint boards of management; (d) [NAME_166]'s evidence is problematic for the reasons identified above and, in any event, [NAME_166] has given evidence of events which prevented the maintenance of a continued traditional connection with the area in which the [ADDRESS] land is located, being the development of the golf course and the industrial development; and (e) [NAME_439]'s evidence is of limited utility and, in my view, supports two matters only, being the fact of [NAME_2] occupation of the claim area by [NAME_24] at sovereignty and the descent of [NAME_24] from those [NAME_30]. [NAME_439]'s evidence does not deal with the 20th century and its impact on the continuity of connection with the [ADDRESS] land. (5) [NAME_171] is the son of [NAME_174], referred to in [NAME_166]'s evidence, the absence of any evidence from [NAME_171] leads to the inference that his evidence would not have assisted [NAME_24]. The evidence that he was both a member of [NAME_24]'s applicant group and of [NAME_23] is not an adequate explanation for the fact that he did not give evidence given his status as a party to this proceeding. In circumstances where [NAME_166]'s evidence relates specifically to the activities of [NAME_174], the absence of evidence from [NAME_171] supports the conclusions I have reached above about the problematic nature of [NAME_166]'s evidence. 422 While I accept the submission for [NAME_24] that consideration must be given to the gravity of a negative determination of [NAME_6], and have given weight to that factor in my evaluation of the evidence, I find the weight of the evidence adduced by [NAME_23] sufficient to conclude that there has been proved a lack of any continuing connection with the [ADDRESS] land of [NAME_24] under their traditional laws and customs. I do not accept the submission that the evidence adduced by [NAME_23] can be discounted on the basis that there is a differential spread of knowledge amongst [NAME_24]. The striking things about the present case are twofold. First, there is the consistency of the direct and indirect evidence adduced by [NAME_23] from a large number of people to the effect that, amongst [NAME_24], the [ADDRESS] land is not seen as having any significance. Second, there is the relative paucity of the evidence adduced by [NAME_24] in support of any continuing traditional connection of [NAME_25] to the [ADDRESS] land. There comes a point when a lack of unity of knowledge may reflect a substantial discontinuity in the acknowledgement and observance of traditional law and custom in relation to land. The wealth of evidence adduced by [NAME_23] in the present case supports a conclusion of a loss of traditional connection with the [ADDRESS] land. That evidence is both credible and sufficient even when weighed with the evidence adduced for [NAME_24] and [NAME_18]: [NAME_27] at [74]. 423 The fact that the parties could not identify another case in which a non-claimant application has been made where there is an undetermined registered claimant application is not to the point. The case is to be determined on the evidence as presented. In particular, I do not accept that the evidence indicative of an arguable continuing traditional connection with other areas, including (arguably) Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the [ADDRESS] land) and more distant locations such as [NAME_35], can be taken as evidence of an ongoing traditional connection with the [ADDRESS] land given that it is an isolated piece of urban bushland surrounded by development on all sides (including the golf course). To be clear, the relevant issue on which this case turns is that of continuing traditional connection with the [ADDRESS] land. [NAME_23] has not proved other negative propositions such as the non-existence of a group unified by their acknowledgement and observance of traditional laws and customs, or the lack of normative content of those traditional laws and customs, or the lack of substantial continuity of those traditional laws and customs, or that the group by those traditional laws and customs does not have an ongoing connection with some land. What it has proved on the balance of probabilities is that [NAME_24] by their traditional laws and customs do not have a continuing connection with the [ADDRESS] land. That is sufficient for [NAME_23] to succeed in its claim.

THE SEWAGE INFRASTRUCTURE 424 Given my conclusions above that [NAME_23] has proved that there is no [NAME_6] in relation to the [ADDRESS] land the question whether [NAME_6] has been extinguished over that part of the [ADDRESS] land occupied by the sewage infrastructure does not strictly arise. I nevertheless deal with that issue below.

The legislation 425 Section 23C(2)(a) of the NTA provides that if an act is a previous exclusion possession act (PEPA) under s 23B(7) (which deals with public works) and is attributable to the Commonwealth then the act extinguishes [NAME_6] in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated and the extinguishment is taken to have happened when the construction or establishment of the public work began. A PEPA is defined in s 23B(7) as an act (defined in s 226) which is valid and consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. "Public work" is defined in s 253 to mean, amongst other things, a building, or other structure (including a memorial), that is a fixture that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities. 426 Section 23E provides that: If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory. 427 Section 23D concerns the preservation of beneficial reservations and conditions. Section 23DA confirms the validity of certain uses of land or waters. 428 Section 20(2) of the NSW NTA provides that acts which are PEPAs under s 23B(7) of the NTA and are attributable to the State extinguish [NAME_6] in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated and the extinguishment is taken to have happened when the construction or establishment of the public work began. "Public work" has the same meaning as it does in the NTA: s 10 NSW NTA.

The evidence 429 The evidence consists of various plans and conversations with and correspondence from Eurobodalla Shire Council (the Council). The plans show a sewer main and eight manholes on the northern part of the [ADDRESS] land, a manhole on the west of the [ADDRESS] land, and a sewer line on the eastern part of the [ADDRESS] land. On my interpretation of the conversation, an officer of the Council informed [NAME_392] that the northern works were constructed in 2004/2005/2006 and the eastern works were constructed in 1978. Other plans produced by the Council indicate that there were construction works in 1978 but it appears those plans relate to the eastern part of the [ADDRESS] land. However, in another conversation a Council officer informed [NAME_392] that the sewage system had been constructed in 1978. Further correspondence from the Council states that the whole [NAME_22] sewerage project started in 1969 and finished in 1980 and that the construction on the [ADDRESS] land was completed in 1979 not 1978. The accompanying plans do not show a construction date other than one plan which shows dates of 1979 and 2006 for what appears to be part only of the sewage works.

Submissions 430 [NAME_23] submitted that the evidence showed that the sewage works were a public work attributable to the Council which had been constructed in 1978 or 1979 and that, accordingly, [NAME_6] had been extinguished over that part of the [ADDRESS] land on which the public work was constructed and the adjacent land as referred to in s 251D of the NTA which provides that: In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. 431 For [NAME_24] it was submitted that: All the manholes and all the water mains in the northern part of the [[ADDRESS]] land, were built between 2004 and 2006 (2004 construction). [NAME_18] submits that the construction was invalid, as there is no evidence it was authorised pursuant to legislative or executive fiat. Alternatively, it is submitted that if it was valid and the construction affected [NAME_6] and a future act provision of the NTA applied to it, there is no evidence that any relevant procedural requirements were complied with, and this would invalidate the construction to the extent it affected [NAME_6]. If that is incorrect and the construction was valid under a future act provision, it would be necessary to look at the relevant provisions to confirm whether the act extinguished [NAME_6] or whether the non-extinguishment principle applied. Otherwise, it is submitted that under s 24OA of the NTA the construction was invalid to the extent it affected [NAME_6]. A water main in the eastern part of the [[ADDRESS]] Land was built in 1978 (1978 construction). The respondents submit that the construction was not a "public work". If the construction affected [NAME_6] at all, the construction was a category D past act to which the non-extinguishment principle applied.

Discussion 432 [NAME_23] bears the onus of proof in relation to the extinguishment of [NAME_6] by reason of the construction of public works before 23 December 1996. There is conflicting evidence about the date of construction of the works on the northern part of the [ADDRESS] land (2004-2006 or 1979). Given the state of the evidence I am not satisfied on the balance of probabilities that the works on the northern part of the [ADDRESS] land were constructed before 23 December 1996. The evidence about the works on the eastern part of the [ADDRESS] land is consistently to the effect that it was constructed in 1978 or 1979. Otherwise: (1) I do not accept the submission for [NAME_24] that the works were not constructed with authority. They were constructed by the Council pursuant to its powers under the Local Government Act 1919 (NSW) and the Local Government Act 1993 (NSW). (2) Section 24OA of the NTA concerning the invalidity of future acts is subject to provisions of the NTA providing otherwise and the provisions concerning public works are such provisions. (3) On the evidence the public works provisions are engaged and [NAME_6] would be validly extinguished in respect of the works on the eastern side of the [ADDRESS] land. (4) The same cannot be said of the works on the northern side of the [ADDRESS] land as there is insufficient evidence from which it can be inferred that those works were constructed before 23 December 1996. [NAME_23] has not proved that those works were valid and have the effect of extinguishing [NAME_6].

CONCLUSIONS 433 [NAME_23] has proved on the balance of probabilities that there is no [NAME_6] in relation to the [ADDRESS] land. To the extent it was submitted that a determination should not be made in the exercise of the Court's discretion, I disagree. [NAME_23] is the owner of the [ADDRESS] land. It has applied for a negative determination. The fact that the [ADDRESS] land is part of [NAME_24]'s claim has been considered in the context of the evidence as a whole. Orders were made that this proceeding be determined separately from and in advance of [NAME_24]'s claim. Having proved its case to the requisite standard the negative determination should be made as sought by [NAME_23]. The fact that this will mean that [NAME_24] cannot obtain a determination that [NAME_6] exists over the [ADDRESS] land as a result of their claimant application and will abrogate any rights they may have had to compensation may be accepted. But these matters do not outweigh the claim of [NAME_23] to the negative determination in circumstances where [NAME_23] has proved its case on the balance of probabilities. A determination will be made accordingly. Otherwise I should record that the legal representatives for [NAME_23] acted on a pro bono basis for which the Court is grateful. I certify that the preceding four hundred and thirty three (433) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate: Dated: 5 August 2020

SCHEDULE OF PARTIES NSD 328 of 2017 Respondents Fourth Respondent: [redacted] Fifth Respondent: [redacted] Sixth Respondent: [redacted] Seventh Respondent: [redacted] Eighth Respondent: [redacted] Ninth Respondent: [redacted] Tenth Respondent: [redacted] Respondent: [redacted] Respondent: [redacted] Respondent: [redacted] Respondent: [redacted]