Aplin on behalf of the Waanyi Peoples v State of Queensland
[2010] FCA 625
•18 June 2010
FEDERAL COURT OF AUSTRALIA
Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625
Citation: Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 Parties: DAWN APLIN, MALCOLM GEORGE, EUNICE O'KEEFE, FRED O'KEEFE AND ADA WALDEN ON BEHALF OF THE WAANYI PEOPLES v STATE OF QUEENSLAND, MOUNT ISA CITY COUNCIL, BURKE SHIRE COUNCIL, THE NORTHERN TERRITORY OF AUSTRALIA, CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION, GREGORY LLOYD PHILLIPS, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, MMG CENTURY LIMITED (FORMERLY OZ MINERALS CENTURY LIMITED), MOUNT ISA MINES LIMITED and AA COMPANY PTY LTD, BEZUMA PASTORAL CO PTY LTD, GAMBAMORA INDUSTRIES PTY LTD, LINDSAY WRAY MILLER, VIVIAN RAYMOND MILLER, STANBROKE PASTORAL COMPANY PTY LTD, VENLOCK PTY LTD, ALAN JAMES WEBBER File number: QUD 6022 of 1999 Judge: DOWSETT J Date of judgment: 18 June 2010 Catchwords: NATIVE TITLE – claim group membership – traditional laws and customs – whether certain ancestor was a member of a particular indigenous society – whether descendants part of particular indigenous society – power of Court to determine composition of claim group Legislation: Native Title Act 1993 (Cth) ss 61, 62, 251B, 253
Aboriginal Land Rights (NT) Act 1976 (Cth)
Aboriginal Land Act 1991 (Qld)Cases cited: Cameron v Hogan (1934) 51 CLR 358 discussed
Baldwin v Everingham [1993] 1 Qd R 10 applied
Edgar and Walker v Meade (1916) 23 CLR 29 discussed
Clarke v Australian Labor Party (South Australian Branch) (1999) 74 SASR 110 referred to
Thornley v Heffernan (unreported, Supreme Court of New South Wales, 25 July 1995 per Brownie J) cited
Sharples v O’Shea (unreported, 18 August 1999, Supreme Court of Queensland per Atkinson J) cited
Tucker v Macdonald [2001] QSC 296 cited
Galt v Flegg [2003] QSC 290 cited
Coleman v Liberal Party of Australia, New South Wales Division (No 2) [2007] NSWSC 736 cited
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 applied
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 applied
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 referred to
Sampi v State of Western Australia [2005] FCA 777 discussed
Sampi v State of Western Australia [2010] FCAFC 26 discussed
Ngurli Ltd v McCann (1953) 90 CLR 425 cited
Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 cited
Gambotto v WCP Pty Ltd (1995) 182 CLR 432 referred to
Alexander v Automatice Telephone Company [1900] 2 Ch 56 cited
Menier v Hooper’s Telegraph Work (1873-74) LR 9 Ch App 350 citedDates of hearing: 27-30 July 2009, 24-26 August 2009 and 13 October 2009 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 271 Counsel for the Applicant: Mr G Hiley QC with Ms H Bowskill Solicitor for the Applicant: Chalk & Fitzgerald Lawyers & Consultants Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: The Second Respondent did not appear Counsel for the Third Respondent: The Third Respondent did not appear Counsel for the Fourth Respondent: The Fourth Respondent did not appear Counsel for the Fifth Respondent: The Fifth Respondent did not appear Counsel for the Sixth Respondent: Mr T McAvoy Solicitor for the Sixth Respondent: Blackshield & Co Counsel for the Seventh Respondent: The Seventh Respondent did not appear Counsel for the Eighth Respondent: The Eighth Respondent did not appear Counsel for the Ninth Respondent: The Ninth Respondent did not appear Counsel for the Tenth Respondent: The Tenth Respondent did not appear Counsel for the Eleventh Respondent: The Eleventh Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 6022 of 1999
BETWEEN: DAWN APLIN, MALCOLM GEORGE, EUNICE O'KEEFE, FRED O'KEEFE AND ADA WALDEN ON BEHALF OF THE WAANYI PEOPLES
ApplicantAND: STATE OF QUEENSLAND
First RespondentMOUNT ISA CITY COUNCIL
Second RespondentBURKE SHIRE COUNCIL
Third RespondentTHE NORTHERN TERRITORY OF AUSTRALIA
Fourth RespondentCARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION
Fifth RespondentGREGORY LLOYD PHILLIPS
Sixth RespondentERGON ENERGY CORPORATION LIMITED
Seventh RespondentTELSTRA CORPORATION LIMITED
Eighth RespondentMMG CENTURY LIMITED (FORMERLY OZ MINERALS CENTURY LIMITED)
Ninth RespondentMOUNT ISA MINES LIMITED
Tenth RespondentAA COMPANY PTY LTD, BEZUMA PASTORAL CO PTY LTD, GAMBAMORA INDUSTRIES PTY LTD, LINDSAY WRAY MILLER, VIVIAN RAYMOND MILLER, STANBROKE PASTORAL COMPANY PTY LTD, VENLOCK PTY LTD, ALAN JAMES WEBBER
Eleventh Respondent
JUDGE:
DOWSETT J
DATE:
18 JUNE 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
INTRODUCTION
This application (the “application”) for a determination of Native Title pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the “Native Title Act”) was filed on 30 August 1999 on behalf of the Waanyi people. On 2 February 2009, the Court ordered that Malcolm George, Fred O’Keefe, Ada Walden, Eunice O’Keefe and Dawn Aplin jointly replace all of the previous persons comprising the applicant. The State of Queensland, the Northern Territory of Australia, the Burke Shire Council and the Mount Isa City Council are respondents. I shall refer to the State of Queensland, in its capacity as a party, as the “State”. I shall use the word “Queensland” in its geographical sense. The terms “Territory” and “Northern Territory” will be similarly used. Other respondents have interests in infrastructure, mining exploration and agriculture in the relevant area. The Carpentaria Land Council Aboriginal Corporation (the “CLCAC”) is also a respondent, as is Mr Gregory Lloyd Phillips (“Mr Phillips”).
The claim group is presently described as follows:
The native title claim group (hereafter “the claimant group”) on whose behalf the claim is the Waanyi people. The Waanyi people are the biological descendants of the following Waanyi ancestors:
1. Ruby (“Lilwayi”) 21. “King” Pedro (“Gurinji”) 2. Polly (“Nganduyu”) 22. Elsie Moreland 3. May (“Nijirijbina”) 23. Doris Aplin 4. Junie Clay 24. Daisy Dick 5. Marina Dick 25. Lena Saville 6. Maurice Carlton 26. Queenie Bell 7. Murray Donaldson 27. Oscar Gregory 8. Micky Miller 28. Tommy Doolan 9. Left-Hand Dick 29. Jimmy Philip 10. “King” Darby (“Dalyirimaji”) 30. Ivy (“Gulanjuba”) 11. Frank (“Grinmayamaji”) 31. Mary Starr 12. Dick “Mailman” (“Gungayamaji”) 32. Sydney Punjaub 13. Johnny Rockland 33. Mailman Jack (“Libaninji”) 14. Toby Daly 34. Jack Riversleigh 15. Charley Waldon 35. Gunawarinya (“King of Turn off Lagoons”) 16. Arthur Peterson 36. Cubby Pedro (“King of Lawn Hills”) 17. Frank Hogan 37. Limmerick Peter 18. Clara Darby 38. Mick Diamond 19. Julie Darby 39. Jack Diamond 20. Duncan Hogan 40. Harry (“Lulwarra”)
Some family names associated with the biological descendants of the named Waanyi ancestors are Aplin, Bell, Cameron, Campbell, Carlton, Chong, Cubby, Daylight, Diamond, Dick, Dixon, Doolan, Douglas, Hogan, Hookey, Jack, Jackson, Jacob, Johnny, George, Gregory, King, O’Keefe, Ned, Pedro, Peter, Punjaub, Riversleigh, Rockland, Shadforth, Walden and Willetts.
The applicant has applied for leave to amend the application in accordance with exhibit DB1 to the affidavit of Dominic Patrick William Beckett filed on 28 January 2009. The proposed description of the claim group is:
The native title claim group is the Waanyi People.
The Waanyi People are those of the living descendants of Waanyi ancestors who identify as being Waanyi people, and are recognised by other Waanyi people as being Waanyi people.
It is accepted that adoption may take place and that where adoption has occurred it confers upon the adoptee the right to identify as being a Waanyi person.
The following persons are the known Waanyi ancestors:
1. King George (Gundawarinya), Mary Starr (Namura), Marrandu
2. Johnny Rockland (Guyanda)
3. Wuragaga (including his sons Toby Daly and Charlie Walden)
4.Wirduga (including her sons King Pedro & Fred Mangala), Yurumburinya, Gudurju, Jagijagi (including her children Left-hand Dick, King Darby, Violet Darby), Lagayi, & Brenda Munara (including her children Duncan Hogan, Julie Darby, Dan Darby, Clara Darby, Frank Hogan, Arthur Peterson)
5.Jack Riversleigh (including his children Doris Aplin & Vera Johnny, Annie King & Elaine Cairns)
6.Diana (Dina) Jackson
7.Fred Mangala (including his children Jimmy Doolan, Tommy Doolan, Oscar Gregory & Queenie Bell) and King Pedro (including his children Dinny, Jock & Cubby Pedro)
8.Janggali (including his son Yarribija’s children: Duncan Hogan, Julie Darby, Dan Darby, Clara Darby, Frank Hogan, Arthur Peterson; & his daughter Muranji’s daughters: Jamuyu & Lidi Wayawarrinya)
9.King Darby, Left Hand Dick & Violet Darby
10.Descendants of Ruby Lilwayi (including her daughter Elsie Foster), Polly Nganduyu (including her children: Nancy Carlton, Ned George, Sally O’Keefe, Bubi Dick, Netty Malbow & Nuts Logan), May Black Nijirijbina (including her children Nancy Wilson, Nora Black, Dora Doolan nee Black and Archie Black), Ruby Gijaya (including her children Mavis Carlton, Junie Clay, Maurice Carlton, Marina Dick, Mick Miller, Murray Donaldson), & Mailman Dick Gungayamaji (including his child Ivy Geroge Ngayaya)
11.Smiler Diamond (including his children: Mick Diamond Nguyjbirri & Jack Diamond Bandangala & Sydney Punjaub & Ruby)
12.Mailman Jack Libaninji (including his son Fred Carlton Gajangga, daughter Rosie & her daughter Betty Lloyd Jayinbalina, and son Ned Ngaragulanji & his children Bessie Holt & Colin Holt)
13.Rosie (including her daughter Lena Saville)
14.June Jacob
15.Opal
I have deferred consideration of the motion pending resolution of the questions with which these reasons are concerned.
Mr Phillips claims that his ancestor, “Minnie” was a Waanyi woman, and that he and her other descendants should be recognized as members of the claim group. The applicant and the claim group, as presently constituted, reject this claim. I understand that virtually all other matters in dispute in these proceedings have been resolved. On that basis, on 1 July 2009 I ordered that the questions in dispute between Mr Phillips and the applicant be listed for separate determination. Exhibit A to my order outlines the questions for hearing and facts agreed as between Mr Phillips and the applicant as follows:
QUESTIONS FOR HEARING AND AGREED FACTS
DefinitionsIn these questions, and in the Agreed Facts, the following words and phrases have the following meanings:
“Claim area” means the area of land and waters described in Schedule B to the proposed Amended Application, being the document entitled “Amended Claimant Application” which is Annexure “DB1” to the Affidavit of Dominic Patrick William Beckett sworn on 28 January 2009
“Waanyi person”, means one of the Waanyi people.
Questions
1.What are the laws and customs of the Waanyi people concerning who are Waanyi people?
a.The Applicant says that a person is a Waanyi person if and only if he or she:
i.is a descendant (biological or adopted) of a Waanyi person;
ii.identifies himself or herself as a Waanyi person; and
iii.is recognised by the other Waanyi people as being a Waanyi person.
b.The respondent Mr Phillips:
i.Disputes points [ii] and [iii] above; and
ii.says that a Waanyi person is a person who is descended from a person who is known by a senior Waanyi person or senior Waanyi people to have been a Waanyi person.
2.Having regard to the answer to question 1 above, was the deceased person known as Minnie (Mayabuganji):
a.a Waanyi person;
b.a person from whom living Waanyi persons may be descended?
Agreed Facts
It is agreed between the Applicant and the respondent Mr Phillips that:1. Native title exists in relation to the claim area.
2.The persons, or the group of persons, holding the native title in relation to the claim area are the Waanyi people.
3.Since prior to sovereignty (which occurred in 1788) the Waanyi people have been, or alternatively have been part of, a body of persons united in and by its acknowledgment and observance of a body of laws and customs.
4.Since prior to sovereignty:
a.the said body of persons has substantially maintained its identity and existence from generation to generation in accordance with the said laws and customs through to the present time;
b.the said laws and customs have been acknowledged and observed by the said body of persons; and
c.such acknowledgement and observance has continued substantially uninterrupted.
5.At all material times the said laws and customs have been acknowledged and observed by the Waanyi people.
6.The Waanyi people possess rights and interests in the claim area under the said laws and customs.
7.By those laws and customs the Waanyi people have a connection with the Claim Area.
8.The laws and customs acknowledged and observed by the Waanyi people include laws or customs in relation to who is a Waanyi person.
9.The deceased persons listed in Attachment A were all Waanyi people from whom living Waanyi people may be descended.
Attachment A contains the same named ancestors as appear in the proposed amended application.
On 1 July 2009, I ordered by consent that:
7…
a.The Applicant bears the onus of satisfying the Court in relation to all matters necessary for answering question 1 in the manner proposed by the Applicant; and
b.Mr Phillips bears the onus of satisfying the Court in relation to all matters necessary for answering question 1 in the manner that he proposes, and for answering question 2 in the affirmative.
Pursuant to my order any other party wishing to be heard in relation to any of these questions was to seek leave to appear. No other party has done so. However, during the course of the hearing of these separate issues I became concerned as to whether the other respondents to the application would be bound by my findings. I asked the applicant’s solicitors to write to the other parties, requesting that they confirm that they did not wish to participate in the hearing, and that they understood that they would be bound by my decision. With the exception of the State, all parties indicated their acceptance of those propositions.
The State advised the Court, by letter, that it did not consent to be bound by any agreed facts as between the applicant and Mr Phillips, but otherwise did not wish to participate in the proceedings. It agreed to abide by the decision of the Court as to whether Minnie was or was not a Waanyi person. Mr Prowse appeared for the State in order to explain its position. I invited the State to participate in the hearing and allowed it seven days in which to consider whether it wished to do so. The State has not sought to be heard further. I proceed upon the basis that the State will be bound by my decision.
PRELIMINARY MATTERS
An inquiry into composition of the claim group is akin to proceedings to identify and enforce the rules of a voluntary association. Generally, the courts do not concern themselves with such questions. As much was established in the case of political parties by the decision of the High Court in Cameron v Hogan (1934) 51 CLR 358. That case concerned the decision of the executive of the Australian Labour Party of the State of Victoria not to endorse the respondent as a candidate for election to the State Parliament, and its subsequent decision to expel him from the party. The respondent sought relief in the Victorian Supreme Court but was unsuccessful. He appealed to the High Court. The appeal was dismissed on the ground that there could be no actionable breach of contract, either at common law or in equity, as the respondent had, under the rules of the Party, no civil rights of a proprietary nature which a court would protect. Rich, Dixon, Evatt and McTiernan JJ said at 370 to 371:
There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalisation it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest which is social, sporting, political, scientific, religious, artistic, or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract. …
Their Honours continued at 378:
[M]embership of the association carries with it no tangible or practical proprietary right. The association must be conducted, and money is needed to carry it on. There must be some margin of revenue over current expenditure, some continuing possessions for use by its officers, some rights incidentally acquired in process of fulfilling its objects. But the existence of such property is incidental and accidental. The organization is a political machine designed to secure social and political changes. It furnishes its members no civil right or proprietary interest suitable for protection by injunction. Further such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon member’s civil rights susceptible of private enjoyment.
In Baldwin v Everingham [1993] 1 Qd R 10, I held that insofar as concerns political parties, the Commonwealth Parliament, in conferring legislative recognition upon them, had made them something more than mere voluntary associations. That recognition involved registration, entitlement to public moneys and the obligation to account for the expenditure of such moneys. It followed that the propositions upon which the decision in Cameron v Hogan depended no longer applied to registered political parties. I applied the reasoning of Issacs J (as his Honour then was) in Edgar and Walker v Meade (1916) 23 CLR 29 at 43-44. In that case his Honour held that the requirement that an organization be registered under the Commonwealth Conciliation and Arbitration Act 1904 (Cth) made it a “creature” of the Federal Parliament, the rules as to membership of which would be enforced by the courts.
In Clarke v Australian Labor Party (South Australian Branch) (1999) 74 SASR 110, Mullighan J reviewed the authorities and legislation upon which Baldwin v Everingham was decided and followed it. The decision has also been followed in a number of other cases: see Thornley v Heffernan (unreported, Supreme Court of New South Wales, 25 July 1995 per Brownie J); Sharples v O’Shea (unreported, 18 August 1999, Supreme Court of Queensland per Atkinson J); Tucker v Macdonald [2001] QSC 296 per Muir J; Galt v Flegg [2003] QSC 290 per Moynihan SJA; and Coleman v Liberal Party of Australia, New South Wales Division (No 2) [2007] NSWSC 736 per Palmer J.
In any event, the Native Title Act clearly contemplates that an application for a determination as to the existence of Native Title will be brought by an applicant on behalf of an identifiable claim group. Section 61 provides:
61 Native title and compensation applications
Applications that may be made
(1)The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:
Applications Kind of
application
Application
Persons who may make application
Native title determination application Application, as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title. (1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or …
Applicant in case of applications authorised by claim groups
(2) In the case of:
(a)a native title determination application made by a person or persons authorised to make the application by a native title claim group; or
(b)a compensation application made by a person or persons authorised to make the application by a compensation claim group;
the following apply:
(c)the person is, or the persons are jointly, the applicant; and
(d)none of the other members of the native title claim group or compensation claim group is the applicant.
Applicant’s name and address
(3)An application must state the name and address for service of the person who is, or persons who are, the applicant.
Applications authorised by persons
(4)A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:
(a) name the persons; or
(b)otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
Form etc.
(5) An application must:
(a)be in the prescribed form; and
(b)be filed in the Federal Court; and
(c)contain such information in relation to the matters sought to be determined as is prescribed; and
(d)be accompanied by any prescribed documents and any prescribed fee.
The term “native title claim group” is defined in s 253 as follows:
“native title claim group” means:
(a)in relation to an application for determination of native title made to the Federal Court – the native title claim group mentioned in relation to the application in the table in subsection 61(1); …
The claim group must authorize the application. Section 251B provides:
Authorising the making of applications
For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:
(a)where there is a process of decision‑making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b)where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision‑making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.
Section 62 of the Native Title Act prescribes that:
Information etc. in relation to certain applications
Claimant applications
(1) A claimant application (see section 253):
(a) must be accompanied by an affidavit sworn by the applicant:
(i)that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and
(ii)that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and
(iii)that the applicant believes that all of the statements made in the application are true; and
(iv)that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and
Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.
(v)setting out details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and
(b) must contain the details specified in subsection (2); and
(c) may contain details of:(i)if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application—that traditional physical connection; or
(ii)if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application—the circumstances in which the access was prevented.
Note: The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.
Details required by paragraph (1)(b)
(2) For the purposes of paragraph (1)(b), the details required are as follows:
(a)information, whether by physical description or otherwise, that enables the boundaries of:
(i)the area covered by the application; and
(ii)any areas within those boundaries that are not covered by the application;
to be identified;
(b)a map showing the boundaries of the area mentioned in subparagraph (a)(i);
(c)details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non‑native title rights and interests in relation to the land or waters in the area covered by the application;
(d)a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;
(e)a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
(i)the native title claim group have, and the predecessors of those persons had, an association with the area; and
(ii)there exist traditional laws and customs that give rise to the claimed native title; and
(iii)the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;
(f)if the native title claim group currently carry on any activities in relation to the land or waters—details of those activities;
(g)details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;
(ga)details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;
(h)details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.
Note: Notices under paragraph 24MD(6B)(c) and section 29 are relevant to subsection 190A(2).
…
The Native Title Act provides a mechanism for obtaining a determination that Native Title, vested in a claim group, continues to exist. It also confers negotiating rights upon applicants who have registered applications. Such rights are held on behalf of the relevant claim group. The application must contain certain information concerning claim group membership and its decision-making processes: ss 61 and 62. Although the term “native title claim group” is a creature of the Native Title Act, it is used to describe a pre-existing social group – those people of indigenous descent who claim a shared interest in land or waters pursuant to shared traditional laws and customs as those terms were explained by the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422. Identification of that claim group is a necessary element in any determination as to the existence of Native Title.
Membership of a claim group involves rights recognized by the common law. The statutory regime contained in the Native Title Act prescribes a procedure for establishing the continued existence of Native Title vested in the members of an identifiable claim group. It follows from these considerations that the resolution of disputes as to the rules governing membership of the claim group, and as to their operation are justiciable questions.
MR PHILLIPS’ CASE
Mr Phillips effectively asserts that any claim group description which does not include Minnie’s descendants does not accurately describe the group which, according to Waanyi traditional laws and customs, has Native Title in the land which is the subject of this application. He submits that:
·traditional Native Title holders of the subject land are the Waanyi people;
·the Waanyi people are descendants of Waanyi ancestors; and
·Minnie was a Waanyi woman, and her descendants are therefore Waanyi people.
The claim group, as presently defined, and as defined in the proposed amendment, does not accept that Minnie was a Waanyi woman. It asserts that the current description of the claim group correctly excludes her and her descendants, as does the proposed amended description. Both the claim group and Mr Phillips accept that the traditional owners of the claimed area are the Waanyi people. The current description of the claim group purports exhaustively to identify the apical ancestors of the Waanyi people. Mr Phillips submits that Minnie should be on that list. The proposed amended description purports to identify only “the known” Waanyi ancestors. Membership of the claim group, as presently defined, depends upon descent (biological or adoptive) from a nominated Waanyi ancestor. The proposed amended description requires descent from a Waanyi ancestor, but it is at least arguable that the list of “known” ancestors is not closed. In other words it may be open to a person to demonstrate that an ancestor, not identified in the proposed amended description, was a Waanyi person. Mr Phillips seeks to do so. The greater part of these reasons addresses the question of whether Minnie was a Waanyi person.
THE WAANYI PEOPLE
The following description of the Waanyi people and their history is derived primarily from the report of Professor Trigger dated 9 June 2009 and/or the attached report prepared by Professor Trigger and Ms Pauline Fietz dated August 2003. Much of this is uncontested.
The word “Waanyi” denotes an Aboriginal language of the southern Gulf of Carpentaria region. The existence, name and territorial location of the language have been well known since the arrival in the region of European and Asian people. Professor Trigger considers that it may safely be inferred that at the time of assertion of British sovereignty in 1788, there was a group of Aboriginal people in the southern Gulf region who spoke the Waanyi language and acknowledged and observed a common body of laws and customs. Those laws and customs identified and regulated their rights and interests in relation to country, including country within the claim area and beyond. The present claim includes land in both Queensland and the Northern Territory. However, as I understand it, the area in the Northern Territory is to be excised from the claim. It has been dealt with pursuant to the Aboriginal Land Rights (NT) Act 1976 (Cth) (the “NT Act”). The term “Waanyi” is now used to identify Aboriginal people who have, or assert traditional connection with, and rights and interests in land and waters in the claim area. No other indigenous group now asserts traditional ownership over any part of the claim area.
Professor Trigger observes that the majority of contemporary Waanyi people have lived most of their lives in close proximity to some part of traditional Waanyi land. A large number live at Doomadgee, with other residents at Mornington Island, Burketown, Robinson River, Borroloola, Camooweal and Mount Isa. None of these centres is actually in the claim area although Doomadgee is just to the north of the northern boundary and within an Aboriginal Reserve held pursuant to a deed of grant in trust (the “Doomadgee DOGIT”). Since the early 1980s some families have lived on, or visited periodically several outstations or camps within the area of the Nicholson River Land Trust in the Northern Territory. This area was successfully claimed by Waanyi and Garawa traditional owners under the NT Act. Waanyi people have similarly lived on, or visited locations within the Doomadgee DOGIT.
The contemporary Waanyi people are, and understand themselves to be descended from Waanyi people of previous generations, inferentially going back to pre-British sovereignty times. They acknowledge a body of laws and customs which, it may be inferred, is derived from, and therefore based upon, a body of laws and customs observed by the Waanyi people at the time of first assertion of sovereignty. It may also be inferred that such body of laws and customs has existed and been observed, with changes, adaptations and transformations since that time. Under that body of laws and customs, the Waanyi people have connections with, and rights and interests in country within the claim area. This body of laws and customs includes rules by which membership of the group may be determined.
According to Professor Trigger, in order to be a Waanyi person, entitled to participate in Waanyi public life and traditional rights in Waanyi country, a person must:
·be a descendant (biological or adopted) of a Waanyi person;
·identify himself or herself as a Waanyi person; and
·be recognized by the broad group of Waanyi people as being a Waanyi person.
Mr Phillips disputes this statement in so far as it concerns self-identification and group acceptance. He asserts that Waanyi descent, recognized by one senior Waanyi person (or more) is sufficient qualification for being a Waanyi person pursuant to Waanyi traditional laws and customs. Professor Trigger says at para 23 of his report:
It would not be correct to say, without further qualification, that a person is a Waanyi person if they assert descent from, or adoption by, a person who was themselves [sic] a Waanyi person – this would overlook the need for a reasonable degree of acceptance of this proposition among the holders of Waanyi traditional law and custom.
For the purposes of Waanyi laws and customs:
iA person may relevantly assert their identify as a Waanyi person by: being known among Waanyi and other Aboriginal people of the region as descended from one or more Waanyi forebears; engaging in social relationships with other Waanyi people, including being situated within the kinship system, so that other Waanyi people classify the person as a category of relative; discussing their Waanyi family and cultural background with others, especially senior Aboriginal people of the Gulf region; and
iiA person is recognised or accepted as being a Waanyi person if: they and their genealogical background are accepted as “known” by a significant proportion of what we might term the Waanyi “public”; such acceptance being evident when there is no longer a significant number of Waanyi people prepared to argue overtly against an assertion from a person that they have a Waanyi identity derived from traditional Waanyi law and custom.
In other parts of the evidence Professor Trigger suggests that such acceptance may be demonstrated when no senior Waanyi person is willing to dispute the claim publicly. Pursuant to Waanyi laws and customs each person has particular traditional connections to some section or sections of Waanyi country. Such connections are determined by reference to laws and customs anchored in the systems of dreamings and skins. Dreamings appear to be stories having spiritual significance. The term “skins” denotes “sub sections” or “semi-moieties” that apply to Aboriginal people in the southern Gulf region. The skins system regulates decisions as to permissible marriages and connections to particular areas within the broader area of Waanyi country. It is fundamental to Waanyi law and custom that rights to country are organized according to how people fit into the kinship system, including the skins system, dreamings and various spiritual features of the traditional landscape.
People are acknowledged as being Waanyi on the basis of ancestral links to one or more known Waanyi forebears. Descent may be through the father or the mother. Any person with at least one Waanyi grandparent is usually able to sustain a claim to membership of the group. Factors which do not confer membership include marriage to a Waanyi person, birth on Waanyi country, lengthy residence on such country, or the fact that a forebear has died or been buried there. Adoption is common, and adopted children are entitled to share in collective rights to the group’s traditional cultural property.
Today, Waanyi people frequently also have non-Waanyi forebears who may be Aboriginal or non-Aboriginal. Persons frequently have affiliation to more than one linguistic group. There is no stated preference for patrilineal or matrilineal inheritance in this regard. However a choice is usually made between patrilineal and matrilineal descent. Many people claim affiliation with the country of more than one language group. The choice between primary identification with language, name, linguistic territory and bodies of laws and customs is complex. There is no single rule for resolution of multiple inherited potential affiliations. The choice often involves negotiation, largely carried out orally.
Aboriginal society has undergone transformation since European settlement so that “collective social action” is more frequently pursued by groups having language as their primary identity label. Professor Trigger sees this as a transformation of the classical clan-based system to a system which operates at a “tribal” level. I understand this to mean that in the past, Waanyi people identified more with smaller clan groups within the Waanyi language group than with that larger group itself. In more recent times, there has been a greater focus upon membership of the larger group. Professor Trigger attributes this development to extended negotiations with government and other parties in the wider Australian society. However he considers that the fundamental criteria of assertion, self-identification and collective acceptance of claims to rights in country have continued to operate since a time prior to British sovereignty. The scale of public discussion amongst members of relevant Aboriginal groups has probably increased and become more organized, so that it may now appear to be a formal process involving voting and recording of decisions. However, according to Waanyi laws and customs, an individual person’s claim to country is ultimately accepted or rejected through a process of collective debate and consideration, which process remains anchored in separate discussions among different Waanyi extended families.
Professor Trigger then identifies a group which he describes as “Diaspora people”. These are Aboriginal people who have, for whatever reason, dispersed or been dispersed into areas away from their traditional lands. Professor Trigger refers to the work of Professor Rigsby in which he observes that where such persons assert membership of traditionally defined groups, without being clearly known amongst those who have lived in close proximity to their traditional country, they may be regarded as kin and not as strangers. Professor Trigger adopts the following statement by Professor Rigsby:
That is, by virtue of kinship, etc, Diaspora people are entitled to group membership. But they don’t get it in one quick go. Like children they have to acknowledge the authority of resident elders and they have to demonstrate respect for Law, Stories and the spirits of their Old People on the land etc. … What is important is that we can observe the operation of law and custom for identifying, incorporating and socialising them. It’s the operation of law and custom that helps us to demonstrate that there is an ongoing social group of traditional owners.
Of that quotation Professor Trigger observes:
With the qualification that in my opinion the equation of such “Diaspora people” with the status of “children” overstates the issue, I believe Professor Rigsby’s point about the operation of traditional law and custom in this matter is relevant to these proceedings. We can note, however, as also instructive, the findings of anthropologist Dr Ben Smith, who investigated this issue on Cape York Peninsula, namely that there can be disagreement between local and Diaspora people asserting traditional connections to the same country:
Local understandings tend to stress particular relationships of people and groups to particular places and tracts of land, whereas diaspora understandings usually emphasise the connection between language named “tribes” and the entirety of country associated with a particular language.
Professor Trigger also opines that:
Lengthy physical absence from the Southern Gulf region encompassing Waanyi land does not erase the right of persons to assert membership of the group; though this can be a complex and politically fraught issue. Families or individuals who may have lived distant from Waanyi country for several generations appear to maintain the potential right to reactivate involvement in Waanyi affairs and Waanyi country. Their success in doing so follows from a range of factors, including their choice of whether to live in the southern Gulf region or at least participate actively in social interaction with Waanyi people, and the strength of their assertions. Central to the negotiation of establishing acceptance of a person’s right to involvement in Waanyi culture and country is agreed knowledge about their forebear(s).
Professor Trigger observes that amongst the Waanyi people, each individual family generally claims distinctive connection to one or more of the identified Waanyi “countries”. Such claims are matters for public consideration. Without a link to one of the distinctive Waanyi countries, it is difficult for people asserting Waanyi identity, on the basis of deceased Waanyi forebears, to gain acceptance by the Waanyi group. This is “because connection through a deceased forebear to one of the Waanyi countries entails a position in the Waanyi kinship and ‘skins’ systems as well as a publicly acknowledged set of relationships to particular Dreamings, i.e. to the spiritual features of Waanyi country”. People asserting Waanyi identity are expected to know their forebears. If they do not have this information, they should be able to derive it from discussions with knowledgeable senior Waanyi people.
A person’s connection to a particular area in Waanyi county is a matter of public knowledge. It may not necessarily be asserted publicly unless the need arises. Such need may arise in connection with land claims, Native Title, cultural heritage and related negotiations. Group recognition depends upon the relevant person asserting such connection to key persons regarded as senior in terms of knowledge of Wannyi cultural and historical matters. Senior persons exercise considerable influence over the decision-making process although, in practice, inter-personal politics may affect the outcome. As the matter is one of oral tradition, claims should be of a substantially public nature. Public assent may be inferred when no senior Waanyi person is prepared publicly to oppose a particular claim.
THE WAANYI LANDS AND THE CLAIM AREA
Although I will return to these matters at a later stage, I should outline briefly the areas which the Waanyi people claim. The evidence demonstrates that they originally occupied an area astride the Northern Territory-Queensland border. The Waanyi are said to have been hill people. Much of the area claimed jointly by the Garawa and Waanyi people in the Northern Territory is hill country to the south of a feature described as the “China Wall” which is, itself, south of Calvert Hills. The hilly country extends into Queensland in the vicinity of Lawn Hill, formerly a well-known station, now a national park. Originally, Waanyi country may have included the hilly western part of the Lawn Hill area, but perhaps not the more easterly part. At some stage, as the result of European incursions into the area, adjoining tribes to the east and south were greatly reduced in numbers. The Waanyi people succeeded them as holders of Native Title in those areas.
The most easterly point of the claim area is now about 100 km south of Burketown. The claim boundary runs north-west from that point, following either natural features or boundaries between different types of post-sovereignty land tenure, and keeping about 100 km from the coast, until it reaches the Northern Territory border. In its present form, it then extends into the Northern Territory but, as I have said, the claim is to be amended to exclude those parts which are in the Northern Territory. From the most easterly point, the boundary runs south-west for about 100 km, and then more or less west to the Northern Territory border. This part of the boundary seems to follow natural features. The boundary then runs north along the Queensland-Northern Territory border to the southern boundary of the Nicholson River Land Trust area which encompasses the land successfully claimed by the Waanyi and Garawa people in the Northern Territory.
THE MINNIE FAMILY
Mr Blackwood, an anthropologist retained to advise Mr Phillips and the other members of the Minnie family, describes that family in his report at para 89 et seq as follows:
·The family members are descendants of a single apical ancestor who was a “full blood” Aboriginal woman named Minnie Mayabunganji and her husband Ah Sam, a Chinese immigrant.
·They were married in the late 19th century and lived and worked around the settlements and stations of the Gulf Region including Burketown, Woods Lake, Lawn Hill and Touchstone. They had numerous children of whom five daughters had children.
·Ah Sam died in 1919. Minnie subsequently lived with another Chinese or part-Chinese man, George “Alajay” Sweeney, with whom she continued to live and work in the region until her death in 1943. They had no children.
·The five daughters were Sarah, Bessie, Janie, Lora (or Laura) and Maudie. All five are deceased. Their grandchildren now constitute the senior generation of the family.
·The family is one of a number of quite prominent families in north-west Queensland descended from Aboriginal women who married Chinese men in the late 19th and early 20th centuries.
·The descendants’ claims to Native Title rights and interests are made on the basis of their descent from Minnie who, family members believe, was a Waanyi woman from the Lawn Hill area, born in the early years of European settlement in the region.
·Her parents were inferentially born prior to such settlement.
FIRST EUROPEAN CONTACT
As is common in Native Title cases, this case has been conducted upon the assumption that circumstances as they existed at the time of first European contact were probably in place in 1788. The first Europeans in the southern Gulf area were members of an hydrographic survey party led by Stokes. They visited in 1841. Other Europeans were Leichhardt’s party in 1845, Gregory’s party in 1856 and Burke and Wills’ expedition in 1860-1. Parties sent to find Burke and Wills were in the area in 1861-62. In 1864 pastoral runs were established to the east of Waanyi country, on the Gregory and Leichhardt Rivers and Beames Brook. Burketown and Normanton were established at that time. Cattle and sheep were brought overland from the south. A boiling down works, shipping facilities and a provisions base were established at Burketown. Various difficulties led to the abandonment of much of this early settlement. However re-occupation commenced in 1874. In 1875 Frank Hann established Lawn Hill Station. Other stations were subsequently established. Violence between Europeans and indigenous people broke out at this time, leading to significant reductions in the numbers of the Nguburindi people, whose country was to the east of traditional Waanyi country, and the Injilanji people, whose country was to the south. The Waanyi people moved eastwards and southwards into these areas.
IMPORTANT LAY EVIDENCE
Although there is much evidence concerning views expressed over the years as to Minnie’s place of origin and language affiliation, the views of two men are, to my mind, of considerable importance. Those men are Roy Seccin (or Secan, Secon or Second), who is now deceased, and Mr Yuen Hookey. Mr Seccin’s views were related to Mr Blackwood who interviewed him in 2004. Mr Hookey gave evidence. It may assist in understanding these reasons if, at this point, I set out the views expressed by those men.
Dr Martin has helpfully summarized Mr Blackwood’s account of his conversation with Mr Seccin as follows:
Roy was born and grew up at Lawn Hill station. He “came out from” Lawn Hill during the “second world war time” and moved across to Cresswell Downs in the Northern Territory … He believes he is about 86 years old.
He describes Minnie’s children as “all my mob” and as belonging to Lawn Hill. He says Minnie’s country is Lawn Hill Station, going “back at the gorge”.
Roy knew Minnie and her second husband, Alajay, from when he was a young boy, about a metre in height. Assuming he is now 86, this would mean he knew them during the late 1920s and early 1930s.
Minnie’s mother was a Garawa or Garawa/Waanyi woman from Calvert River (Tjudidji) in the Northern Territory. Her Aboriginal or bush name was Boongari.
He describes Minnie as a “full blood Waanyi” through both her mother and father. She was born at Lawn Hill and her country is Ngumari, the language name for the Lawn Hill station area. He says Minnie had [an] Aboriginal or bush name, Murrulnjayiyulpa. This has the same meaning as Bujarda, the name of the carpet snake dreaming for Lawn Hill.
Minnie’s father was a “full Waanyi” man from Lawn Hill who lived through the “wild time” of frontier conflict. His Aboriginal or bush name was Tjardimadji. Roy described him as “dinkum Waanyi” of the Budjarda (Carpet Snake) dreaming. White men called him “Lawn Hill Mick”, “Ngumari Mick” or “Old Mick”. Roy’s father used to tell Roy stories about “Old Mick”. He was around in the “real wild days” and the station owners used to chase him and tie him down in order to “quieten him down”.
Although Roy never saw Minnie’s father, for he had passed away long before Roy was born, Roy calls him Ganggu meaning grandfather.
He says Minnie and Opal were “full sisters” with the same mother and father. Opal was the older of the two. She married Ah Bow and they ran the garden at Louie Creek. Opal used to rear up Roy and he can recall she carried him from Louie Creek to Lawn Hill. …
Roy also knew Minnie’s daughter, Sarah, whom he referred to by her language name of Anyimor; she called Roy “uncle”. He asserted: “All Minnie’s children belong to Lawn Hill”.
He identified three Dreamings associated with Lawn Hill:
1. Bujarda. Carpet snake…
2. Gundugundu. “Scrub devil” …
3. Tjunbarna. “Yellow or desert goanna” …
Mr Hookey is a Waanyi man and claims to be a Waanyi elder although he may have, to some extent, departed from that claim during cross-examination. He was born in Burketown in 1935, at a waterhole known as “Hookey’s Hole”. His father was Charlie Hookey and his mother, Ethel Samardin. She was born at Burketown on 15 May 1914. Her father was a Javanese man named George Samardin. Ethel’s mother was “Nellie”. Nellie’s father was “Jack”. Mr Hookey’s mother and maternal grandmother were Waanyi people. His paternal grandfather was Yuen Hook. His death certificate states that he was born in Canton and died at Cloncurry in 1961, then aged 76. Mr Hookey’s paternal grandmother was Violet Kim Hoey. She is also referred to as Violet Darby: see TS 459 l 43. She was born around 1882 at Lawn Hill Station via Burketown. Her mother was known only as “Jessie”. Violet Darby moved up and down the Gregory and Leichhardt Rivers, sometimes staying in Aboriginal camps at Gregory. Mr Hookey knew her when they both lived in Burketown. Mr Hookey’s affidavit suggests that it was his maternal grandmother who lived along the Gregory River, but the matter is clarified at TS 480 ll 11-12. In the proposed amended description of the claim group Violet Darby is to be identified as a known Waanyi apical ancestor. She was Roy Seccin’s father’s sister. I will return to that matter at a later stage. Mr Hookey appears, therefore, to be of Waanyi descent through both parents. In the applicant’s written submissions, it asserts that there was no evidence that either Mr Hookey’s mother or maternal grandmother was a Waanyi woman. However he asserted as much in his affidavit and was not cross-examined on that assertion. The case must be decided on that basis.
Mr Hookey met Minnie when he was a young boy. She lived in the hut next door to his, with a man named “Alajay”. She was crippled. The huts were made of corrugated iron and had dirt floors. They were about 10 yards apart: see TS 460 l 20. When he was about seven Mr Hookey was told by both his mother and grandmother that Minnie was Waanyi: see TS 460 ll 45-47. The reference to his grandmother is to Violet Darby. Mr Hookey says that he must have been around that age because he remembers being at school at that time: TS 478 l 19. His mother said that “Granny Minnie is the same tribe as me – Waanyi. She was up and down the Gregory River.” This statement may again reflect confusion concerning the connection between Mr Hookey’s family and the Gregory River. Mr Hookey says that Minnie was a “full-blood” Aborigine and always “talked in language”. Mr Hookey does not do so. Mr Hookey called her “Granny Minnie”.
In 1944 Mr Hookey moved to Camooweal. He and his mother stayed with Janie Ah Kit, one of Minnie’s daughters. This may suggest some familial connection. As far as he was aware Minnie was still alive at that time: TS 466 ll 36-46. Around that time he also met Minnie’s daughters, Bessie and Maudie King. He met Bessie again in the 1950s in Cloncurry. His mother and Bessie called each other “Waringu” meaning “cousin” or “cousin/sister”. Mr Hookey returned to Burketown in 1945. Minnie was no longer there. He never saw her again: TS 467 l 3. In fact, Minnie died in 1943.
SIMONE MAREE ARCHER
It will also be convenient, at this stage, to deal with the evidence of Ms Simone Archer as such evidence includes a little further evidence concerning Minnie.
Ms Archer has been employed by the Carpentaria Land Council Aboriginal Corporation (“CLCAC”) since October 2006, and has been a Native Title Services Officer since July 2008. She has sworn two affidavits filed on 7 July 2009 and 24 August 2009. Prior to July 2008 CLCAC was recognised under the Native Title Act as the representative body for the area of North West Queensland known as the Gulf Region which includes the area claimed in the application. Since that time CLCAC has been funded to perform the functions of a representative body. The CLCAC has been assisting the Waanyi people in the conduct of this application.
CLCAC is aware that Minnie’s descendants assert that Minnie was a Waanyi person, and that they ought be recognised as Waanyi people and included in the claim group. Since March 1999 the “Minnie issue” has been discussed by the claim group at numerous meetings. Exhibited to Ms Archer’s affidavits are minutes of meetings, together with correspondence, marriage and death certificates relating to Minnie and her descendants and other documents. However there seems to be little dispute as to such descent. The real matter in issue is whether Minnie should be recognized as a Waanyi woman.
According to her death certificate, Minnie Ah Kun, died of old age and natural causes on 15 October 1943 at Woods Lake via Burketown, aged about 85 years. (Other evidence suggests that she may have been in her late 60s.) There seems to be little doubt that this woman was the person from whom Mr Phillips and his family claim descent, or that they are her descendants. The certificate also asserts that she was born in Queensland and spent her whole life here. It is reasonable to infer that the information provided for the purposes of the death certificate came from a person who knew her and her views as to her own birth and life. The informant is shown as Lora (Laura) Yamaguchi, her daughter. Details of Minnie’s parentage are not recorded. Other information in the certificate includes:
·that she married Sam Ah Kun;
·that her living issue were Sarah, Bessie, Lara (Laura), Jamie and Maudie; and
·that two sons and one daughter had pre-deceased her.
Exhibited to Ms Archer’s affidavit filed on 7 July 2009 is a letter dated 27 June 2001, apparently from Ms Rose Iles, Minnie’s granddaughter and Bessie’s daughter. Attached is a statement outlining her knowledge of Minnie as follows:
EVIDENCE TO SUPPORT OF MY STATEMENTS
Minnie Mybogunyi was born at Touchstone Huts in 1858 and died in 1943 at Burketown, aged 85 years. My Grandfather, Sam Ah Choo (Ah Kun) also used the surname Ah Sam. Mum said Grandfather thought Ah Sam was “easier” to spell and was a more “common” Chinese name for the white man to understand and spell.
PROVIDED BY MRS BETTY O’LOUGHLIN TO PATRICK ANDERSON
GREAT GRANDSON OF MINNIE MYBOGUNYINAME: Minnie Mybogunyi
PLACE OF BIRTH: Touchstone Huts (near Nicholson River, Ganggalida Country)
YEAR OF BIRTH: 1858 (approximate)
PLACE OF DEATH: Burketown
PLACE OF BURIAL: Burketown
YEAR OF DEATH: 1943
AGE AT DEATH: 85 Years (approximate)
MYBOGUNYI:
Bush name meaning colours of the Rainbow, Black Cockatoo with Red crest. Storyline relates to almost all living things under the water.
PEARL DAYLIGHT, (Betty’s sister) has the same bushname as Minnie given to her through family.
BETTY O’LOUGHLIN states: that she called Minnie “Aunty”, same as she calls LOUIE MICK and LIMMERICK PETERS “Aunty”.
LIZZY DAYLIGHT is Betty’s Mother.
CLARA FOSTER (Statement; October 2000, Doomadgee) said that Minnie’s English name must have been Minnie Louisa Pearce, (shown on the Marriage Certificate of Minnie’s daughter, Emma Ah Sam), and that the surname PEARCE could come from the Calvert Hills region in the NT.
CLARA’s mother also came from the Calvert Hills region (Goonyiwa way). This being the case, would make Minnie a Traditional Waanyi woman born in Ganggalida country.
Touchstone Hut is located to the north of the eastern part of the claim area and about 50 km south-west of Burketown. Anthony Chong, one of Minnie’s descendants, also suggested to Dr Martin that Minnie was born at Touchstone Hut and was possibly of Nguburindi descent. The Nguburindi people were the easterly neighbours of the Waanyi. As I have explained, they were decimated in the violence which followed European settlement. However there is no real evidence to support Mr Chong’s view.
ANTHROPOLOGICAL EVIDENCE
It is impossible to do justice to the anthropological research which has been done in this matter without unduly extending the length of the judgment. Many of the questions which have been addressed and the conclusions reached are not directly relevant for present purposes. I shall try to distil the relevant aspects of the various reports.
Professor Trigger
Professor Trigger asserts that available information suggests that Minnie married Sam Ah Choo, a Chinese man also known as Ah Kun and Ah Sam, in 1888. He was a gardener and cook, known to have worked at Lawn Hill Station where Minnie was employed as a domestic servant. Two sons of her marriage with Sam Ah Choo were sent back to China when they were young. Other evidence suggests that only one son was sent back to China. Both sons died whilst young. After the death of her husband Minnie lived with a man known as Alajay, or George Sweeney, at Woods Lake near Burketown.
Oral history and archival records suggest that Minnie and her descendants have had an historical association with Waanyi country. She was married at Lawn Hill Station in Waanyi country and lived and worked there from 1888 until about 1916, after which she moved to Woods Lake near Burketown. A number of her children were born and lived at Lawn Hill Station. Burketown is in Gangalidda country. There are suggestions that Minnie was either a Gangalidda woman or a Garawa woman. The Gangalidda and Garawa people claim Native Title to coastal areas lying to the north-west of Burketown. The Waanyi and Garawa peoples jointly claimed hill country in the Northern Territory. Waanyi country is to the south-west of Burketown and away from the coast. There is also some suggestion that Minnie may have been a “Leichhardt Aboriginal”, presumably from the area of the Leichhardt River. None of the anthropologists gives much weight to this theory.
Professor Trigger has been involved in research in connection with the Waanyi people for many years. Between 1978 and 1983, he conducted research for the purposes of the 1982 Nicholson River land claim in the Northern Territory. In the course of that research Waanyi families residing away from the main Waanyi communities came to his attention, notwithstanding their physical separation. These included people in places such as Mount Isa and families which had been sent to Palm Island, ending up in Cairns. However the Minnie family did not come to his attention as a family claiming Waanyi connections. Professor Trigger accepts that Aboriginal genealogies are commonly incomplete, and that persons are added to them from time to time, as more information becomes available.
From the early 1990s Professor Trigger was involved in research concerning the Waanyi people in connection with the Century Mine development. Again, he does not recall the Minnie family asserting Waanyi identity at that time, although other Mount Isa-based families were doing so. Professor Trigger was also unaware of any discussion amongst Waanyi people as to the possible connection of the Minnie family to them. In the late 1990s he became aware that Minnie’s descendants were claiming to be Waanyi. He understood the group’s status to be “unclear”, and that they were not accepted as Waanyi by the broader Waanyi community.
Professor Trigger has interviewed many people who might have information concerning Minnie and her family. He spoke to Nellie Chong, whose mother was Minnie’s daughter, Sarah. Laura (or Lora) Yamaguchi, another of Minnie’s daughters, was Nellie’s aunt. In discussing the anthropologists’ accounts of their discussions with other people I shall generally refer to those people by their given names. This may help to avoid confusion as many surnames are shared. Nellie said that Sarah and Laura were Gangalidda women, as were her mother’s other sisters. Nellie said that nobody knew for sure where Minnie came from. Croydon and the Pellew islands (located off the mouth of the Macarthur River in the Northern Territory) had been suggested. This would be inconsistent with the statement in the death certificate that Minnie was born in Queensland and lived here for all of her life. Nellie had never heard Laura Yamaguchi identify herself as a Waanyi person. She only saw Minnie once, during the Second World War, at a location east of Egilabria Station homestead, between Burketown and Doomadgee. Minnie was staying with her daughter, Laura Yamaguchi. This was shortly before her death. George Sweeney had gone to Lawn Hill to work, leaving Minnie with Laura. She could not walk. Nellie did not know whether Minnie spoke an Aboriginal language.
Nellie had previously told Ms Fietz that her mother and her grandmother were Gangalidda women. Professor Trigger notes that Nellie seemed to consider that Aboriginal identity depended upon the place at which a person was “bred and born”. She also said that as a child she was not allowed to ask questions of older family members. She said that her extended family seemed to believe that she knew more about their family history than she in fact did. It certainly seems that when talking to Professor Trigger, Nellie did not attribute her mother and aunts’ Gangalidda affiliations to their descent from Minnie. It may be that Nellie’s assertion to Ms Fietz that Minnie was Gangalidda reflected an assumption which she had made. Professor Trigger’s questioning may have caused her to reconsider the matter.
In November 2007, Professor Trigger interviewed Clara Bob about aspects of Garawa country. He also asked questions about Laura Yamaguchi’s family. Clara did not know the name Mayabuganji, a name attributed by some to Minnie. However she knew Laura Yamaguchi and Sarah Chong, two of Minnie’s daughters. Professor Trigger asked whether they were Gangalidda, Waanyi or Garawa. She said that the women always stayed in Gangalidda country, meaning the Burketown area. She had never seen Minnie. She recalled seeing Laura with her husband at Wollogorang Station. He was a cook there. Laura could understand Garawa language but did not speak it. She recalled Laura speaking about Magundi, an area on the west of Massacre Inlet in Garawa/Gangalidda country. She had not heard her speak of Waanyi country. Garawa people knew Laura as being “from Gangalidda way”. Clara’s reply to Professor Trigger’s question seems to have left it unresolved.
On 16 February 2009 Professor Trigger interviewed Sadie Joe and Pearl Wilbatt, two daughters of Lizzy Daylight, at their home in Warwick in south-east Queensland. On an earlier occasion Lizzy Daylight had told Professor Trigger a story about four young women who had eloped from Garawa country, one of whom was called Minnie. The story recurs in various forms in the anthropological evidence. However, in the end, it seems not to assist for present purposes, and so I will not deal with it in the same detail as have the anthropologists. Sadie and Pearl identify as Gangalidda. Ms Fietz had discussed the fact that Laura Yamaguchi had given Pearl the name Mayabuganji, that being Minnie’s name. Pearl was born in 1946. In his Nicholson River research, Professor Trigger had also recorded Pearl as having that name, although spelt slightly differently. At that time he did not record any information concerning Minnie. I note that in the marriage certificate for Emma, Minnie’s eldest daughter who died in childbirth, her mother’s name is shown as Minnie Mybogungee, although the copy is not entirely clear. That name seems likely to be a different phonetic spelling of the name Mayabuganji.
Pearl and Sadie confirmed a close relationship in kin terms between themselves and Laura Yamaguchi, traced through Pearl and Sadie’s father, Les Daylight. As described, the relationship is a little difficult to understand. Pearl and Sadie also recognized Sara Chong, Minnie’s second eldest daughter as kin, although the relationship appeared to Professor Trigger to be different from their relationship to Laura Yamaguchi. Professor Trigger considers that Pearl and Sadie do not necessarily consider that they were related to all of Minnie’s daughters. He concludes that both Gangalidda women regard Laura as “a socially close kinsperson”. However Pearl and Sadie also have genealogical links to Waanyi through their mother, Lizzie Daylight, her father being Murandoo. Thus they were listed as traditional owners for Waanyi country in the Nicholson River claim.
Professor Trigger considered the transcript of a conversation between Mr Phillips, Arthur Peterson and Billy Foster in which Mr Phillips enquired as to whether his grandmother, Bessie, was Waanyi. Bessie was one of Minnie’s daughters. I shall set out the conversation at a later point in these reasons. Arthur and Billy seemed to suggest that she, Mr Phillips’ mother, Mona and Mr Phillips were Waanyi. Professor Trigger knew both Arthur and Billy. He considers that, “there is a risk that there was considerable mis-communication between Mr Phillips and the two interviewees.” Professor Trigger also considers that “the transcript is not a reliable indication that Arthur Peterson and/or Billy Foster were giving a definitive view as to the Waanyi language group identity of Bessie Turner, Mona Phillips or Greg Phillips.” Whilst I accept that Professor Trigger is much more experienced in communicating with indigenous people than am I, I doubt whether it would be appropriate simply to adopt his opinions as to questions of reliability. It will be better if I treat his observations as submissions rather than as evidence.
Professor Trigger does not deny the possibility that Minnie was a Waanyi woman. He rather considers the evidence to be inconclusive and suggestive of other possibilities, namely that she was Garawa or Gangalidda.
Professor Trigger also gave extensive oral evidence. In the course of that evidence he indicated that his research had included interviews with knowledgeable members of other language groups such as the Garawa and Gangalidda peoples. He said that knowledgeable members of Aboriginal groups may reasonably be expected to have knowledge of other groups in adjoining areas. Such groups may comprise a “regional public” for determining questions such as those with which I am presently concerned.
At TS 158 Professor Trigger was asked questions concerning the likelihood that the descendants of a Waanyi person who had been absent from Waanyi country for several generations would be recognized as Waanyi upon their return. He said:
I think Waanyi people understand their law and custom such that if the forebear was accepted as a known Waanyi forebear, then they would not in a formal structural sense have a basis for excluding them or sending them away or denying that they satisfy that criterion of having had a Waanyi forebear. I think in this type of hypothetical situation where the person is completely unknown, they come from another country, then the matter of them establishing a workable relationship with the Waanyi people would be another matter, but I think perhaps the point of the hypothetical case would be that – it would still be the case that the core criterion would be that the deceased forebear of these arrived persons would either be known – it would be either agreed or not agreed, accepted or not accepted, that they were the issue of an earlier Waanyi person. My opinion is that that’s the core criterion. It’s just that we can hypothetically discuss a whole lot of circumstances in which practicalities raise all sorts of issues as to the process.
Professor Trigger was then asked about the relevance of formal records such as birth certificates. He replied:
I think documents are not irrelevant by any means. I think Waanyi people, young people are definitely at work in the world of documents these days. I guess if I go back to the core point that if, nevertheless, in light of such documents there were significant mature-age senior Waanyi persons who said, “Well, I just don’t believe those documents, you know, I’m not prepared to accept it because I can’t link that deceased forebear into what I know to be the sort of genealogical set of kinship relations operating among all the forebears,” then the young persons might say, “Well, we can’t really take the documents at face value.”
At 159 Professor Trigger said, concerning knowledge of traditional stories:
No, I think what I was intending there was to say that the process of evaluating the claim or the assertion would typically take Waanyi people to these questions. For example, okay, well, where – its not enough just to say that they have been connected to Waanyi country, but which country, which state are they connected to? How did their deceased forebear fit with our other old people who we know? So I see these aspects of traditional law and custom as part of the process by which the assertions are evaluated.
He was then asked:
But is there an element of assessment of the way in which they fit into the current society as well, or is that not relevant?
He replied:
Well, I think in practice it’s relevant to the outcome. For example, if we take that example I mentioned of Brad Foster, if he had come along and just made the assertion and then left, I guess people, if they accepted that his deceased forebear was a Waanyi person, then they wouldn’t formally exclude him from membership of the group, but I think the fact that he actually participated substantially in social life and ritual life cemented or confirmed or back-up, reinforced reasons why people in practice then include him socially in the group. But even if he had gone away, gone back to Palm Island, once that link had been established between the Aplin family, Henry Aplin’s family and Brad Foster’s great-grandmother, you now, I don’t think anybody would then deny him membership in the Waanyi group.
As will be seen Mr Blackwood challenges certain aspects of the basis upon which, according to Professor Trigger, membership of the Waanyi group is to be determined. In particular Mr Blackwood challenges the requirement for assertion of Waanyi identity and acceptance by the Waanyi community of such assertion. Professor Trigger was questioned about these matters at pp 160-161 and said:
I don’t regard them as additional criteria. I think it’s a straightforward matter that if you’re going to have a process of acknowledgement by which there is collective knowledge established and accepted about a person’s forebears, then processes of assertion and evaluation and acceptance are necessary.
He was then asked whether Waanyi law and custom identified the process for recognition of Waanyi descent and said:
Yes. I think it’s an assumption, much of the time, most of the time, other than when it becomes an issue in the face of a small number of families or, after all, those who might be regarded as – in this case, we are talking about Diaspora people, but those people who might have lived socially more distant from the bulk of Waanyi persons are going to be a minority. So I think, though, that when the matter is pushed – when the matter needs to be addressed, then, quite clearly, Waanyi people recognize the necessity of the process. It’s – and I think the kinds of statements that were read out before, in the affidavits, are commonly made whenever you have an issue of inclusion that’s to be debated. As I say, I saw this very much through the long period of negotiations over Century Mine, because there you had some years of working out who was in and who was out, if you like. Who could claim to be Waanyi persons, and therefore, in a sense, be written into the agreement as potential beneficiaries of the agreement. And so in recent decades, I think people have gotten used to this being – this question, this process being prompted by these negotiations.
He was asked:
But is the dominant consideration the fact of descent, or is it recognition by the process of the fact of descent? And what if, for example, other members of the community thought that the decision was wrong? Would that be very upsetting to them, that the traditional processes had produced the wrong result? Would they continue to assert what they consider to be the right result?
He replied:
Yes. I think, given the obvious qualifications about sometimes you’ve got more forceful personalities than others … but yes I think people making assertions will, assuming it’s important to them, then they will be upset and they may well continue to make the assertion.
He was asked:
So it’s the actual fact, rather than the process’s opinion of the fact that’s important?
He replied:
I think the end point is the fact itself, and the importance of the process comes to people’s mind there is articulated in the course of difficult cases.
At TS 169 he was asked whether the criteria of assertion, self identification and acceptance were independent criteria. He said:
Well, look, I think we can go either way in our description of these processes. Especially where the matter is not of public issue it tends to be wrapped up as part of the same – as a process which leads to acceptance of – of a person being descended from a known forebear. In circumstances where the matter becomes for public debate, that we necessarily see the processes of assertion, you know, separable, identifiable in public life, in social life. So I don’t want to harp on poor old Henry Aplin, but to go back to him again, if it were the case that somebody challenged his – whether or not he had a Waanyi forebear, I would think – I would expect to see him asserting that and it would become an identifiable part of the process. And, indeed, as would the aspect of whether or not his propositions were going to be accepted. So I see those elements becoming identifiable when we have cases that are not agreed upon in a straightforward way.
Mr Blackwood places some significance upon the fact that the Minnie family was included as a descent group in what is described as “the Waanyi Aboriginal Land Claim Association” (“WALCA”). He asserts that such inclusion demonstrates acceptance by the Waanyi people of the Minnie family as being Waanyi. However Professor Trigger understands that WALCA was not fully representative of the Waanyi people. It was rather a sub-group of the larger group. There had been disputes within the larger group as to whether to proceed with a Native Title claim or to make a more limited claim over Boodjamulla and Lawn Hill National Parks. He does not consider that inclusion in WALCA necessarily demonstrates acceptance of the Minnie family as Waanyi by the wider Waanyi community. Given Professor Trigger’s close association with Waanyi society, I accept that opinion.
Professor Trigger considers that some aspects of Mr Seccin’s statements to Mr Blackwood concerning Minnie were inconsistent and suggestive of confusion. One such matter was Mr Seccin’s assertion that he referred to Minnie’s father as “Kangu” or “Gangu”. I accept Professor Trigger’s opinion that this may suggest an inconsistency. However there has been no opportunity to explore the matter with Mr Seccin. It does not seem to me to detract from the main thrust of Mr Seccin’s views concerning Minnie’s identity. Professor Trigger’s comment also has the weakness that it inevitably depends upon certain assumptions as to marriage in accordance with the skins system.
Professor Trigger suggests that if Minnie’s mother came from Calvert Hills she was probably Garawa rather than Waanyi. He points out that the bush name given to Minnie by Mr Seccin was “Murrulngayiyulpa”. This name has not otherwise been attributed to Minnie. Professor Trigger suggests that it may be a mistaken reference to Violet Darby’s bush name “Munurangayupa”, suggesting that Mr Seccin may have been referring to her. Professor Trigger says that he had not previously heard of Lawn Hill Mick. He also notes that the suggestion that Minnie was from Lawn Hill seems inconsistent with other suggestions that Minnie’s parents were located in Gangalidda country.
There is also some direct evidence as to statements made by Minnie’s daughters suggesting Waanyi affiliation. Bessie, Ms Phillips’ mother, said that the family was Waanyi. Sarah told Debbie Chong that they were “inland people, not sea people”, arguably excluding Gangalidda and, possibly, Garawa affiliation. I again acknowledge that the Garawa people appear to have some inland interests in the Northern Territory. Laura Yamaguchi told George Chong that the family was Waanyi. These statements, by themselves would not be sufficient to persuade me to find that Minnie identified, and was accepted as Waanyi. Nonetheless they give support to the views expressed by Mr Seccin, Mr Hookey and Mr Peterson.
I do not discount the evidence of Professor Trigger or Dr Martin. Nor do I base my conclusions upon a general acceptance of Mr Blackwood’s evidence and opinions to the exclusion of the evidence and opinions of the other anthropologists. Indeed, it must be accepted that the resolution of the case depends substantially upon general acceptance of the research done by Professor Trigger and Ms Fietz, supplemented by the relatively small amounts done by Dr Martin and Mr Blackwood. As I understand it, neither Professor Trigger nor Ms Fietz excludes the possibility that Minnie was a Waanyi woman. Rather, they conclude that the question is unresolved. Professor Trigger seems to be appropriately concerned not to intrude upon the decision-making process of the Waanyi people. He places significant weight upon the fact that his own previous research had not identified Minnie as a Waanyi ancestor. One might reasonably have expected that such research would have raised the question. However Professor Trigger concedes that indigenous genealogical tables are always subject to the prospect of future adjustment. The status of Violet Darby was apparently in dispute for some time before it was finally resolved by Roy Seccin. It is significant that notwithstanding his status as a trusted informant, the affiliation of his own aunt should have been resolved at a relatively late stage.
As to Dr Martin’s views, I have already said something about his discounting of the possibility that Minnie’s father could have been Waanyi if he were born at Lawn Hill on his probable birth date. I consider that the exercise which he undertook was based upon a misconception as to the views expressed by Professor Trigger and Ms Fietz concerning the extent of traditional Waanyi country prior to the eastern migration. I have discarded his suggestion that Mr Seccin may have tailored his views concerning the operation of the skins system to reflect the view which he expressed concerning Minnie’s Waanyi identity. There is a possibility of such reconstruction, but it falls away as a relevant consideration given the absence of any motive for such conduct by Mr Seccin.
In a society which does not rely on written records, questions of descent will be largely matters of opinion. In those circumstances, it would be foolish to discount such opinions. It is true that many people believe that Minnie was Gangalidda or Garawa. Others simply do not know her affiliation. In the time frame with which I am presently concerned it is to be expected that some people may not, at the present time, know her as Waanyi. That fact proves nothing, one way or the other. The possibility that Minnie was Gangalidda or Garawa must also be considered. However there is the risk that the Gangalidda possibility arose as the product of her residence in Burketown, her daughters’ residence there and the fact that they, or some of them, may have spoken Gangalidda. As I have said, the latter fact may simply have reflected their long residence in Burketown. Once it is accepted that Minnie came to Burketown from Lawn Hill, the persuasive value of that Burketown/Gangalidda evidence is reduced. One must also keep in mind the common occurrence of mixed descent and the difficulties in identification and self-identification which it may pose.
On the balance of probabilities, I make the following factual findings:
·during her life, Minnie identified herself as a Waanyi woman and asserted such affiliation;
·such self-identification was based on her belief that she had at least one Waanyi parent;
·Mr Seccin met Minnie in the early to mid-1920s at Burketown whist he was living at Lawn Hill;
·From that time he understood that she was a Waanyi woman;
·He left Lawn Hill during the Second World War, moving to the Northern Territory;
·Mr Hookey resided next door to Minnie in Burketown and, in about 1942, was told that she was a Waanyi woman;
·From that time he understood her to be a Waanyi woman; and
·He left Burketown in about 1944, returning in 1945 and residing there until 1949.
In my view these findings support further inferences, based upon the fact that neither man apparently perceived any reason to change his view concerning Minnie’s affiliation. I infer from this fact that neither became aware of any dissent concerning the question within his family or the Waanyi community in which he was living, or in which he had learnt of Minnie’s Waanyi affiliation. Although there was a gap between Minnie’s departure from Lawn Hill and Mr Seccin’s first meeting with her, it is reasonable to infer that views at Lawn Hill did not change during that time. She was a long-standing resident at Lawn Hill. It is unlikely that she was quickly forgotten. I therefore infer that:
·From 1888 until at least 1939, Minnie was recognized by the Waanyi people at Lawn Hill as a Waanyi woman; and
·From about 1916 until her death in 1943, Minnie was recognized by the Waanyi people at Burketown as a Waanyi woman.
MEMBERSHIP OF THE CLAIM GROUP
The term “native title claim group” is defined in s 253 of the Native Title Act to mean relevantly:
in relation to a claim in an application for a determination of native title made to the Federal Court – the native title claim group mentioned in relation to the application in the table in subsection 61(1); …
In the table which forms part of s 61(1) the persons who may make application for a determination as to Native Title are:
A person or persons authorised by all the persons (the native title claim group) who according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; …
Thus the native title claim group must be the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprised in the claim.
Pursuant to s 251B:
For the purposes of this Act, all the persons in the native title claim group … authorise a person or persons to make a native title determination application … and to deal with matters arising in relation to it, if:
(a)where there is a process of decision-making that, under the traditional laws and customs of the person in the native title claim group …, must be complied with in relation to authorising things of that kind—the persons in the native title claim group … authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b)where there is no such process—the persons in the native title claim group … authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group … in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.
Inevitably, these requirements lead to the conclusion that for the purposes of the Native Title Act, it is the claim group which must determine its own composition. Any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B. The claim group must assert that, pursuant to relevant traditional laws and customs, it holds Native Title over the relevant area. It is not necessary that all of the members of the claim group be identified in the application. It is, however, necessary that such identification be possible at any future point in time. A claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member. As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs. As to matters of process the claim group must act in accordance with traditional laws and customs or, in the absence of relevant laws and customs, pursuant to such process as it may adopt.
In Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, Brennan J said at 61:
But so long as the people remain an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.
In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 at [108] the Full Court of this Court adopted that passage insofar as it concerns mutual identification. In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ made certain criticisms of the Full Court’s decision but appear not to have challenged the observations of Brennan J in Mabo. The passage demonstrates that the existence of a relevant society depends upon mutual recognition within the group, this being a necessary characteristic of a society. It follows that membership of the claim group depends upon similar recognition. In Sampi v State of Western Australia [2005] FCA 777, French J said at [820]:
There are “emic” bases of identification as Bardi or Jawi. The term “emic” refers to a perspective which is internal to the culture.
On appeal in Sampi v State of Western Australia [2010] FCAFC 26 the Full Court (North and Mansfield JJ) said at [45]:
A relevant factor among the constellation of factors to be considered in determining whether a group constitutes a society in the Yorta Yorta sense is the internal view of the members of the group – the emic view. The unity among members of the group required by Yorta Yorta means that they must identify as people together who are bound by the one set of laws and customs or normative system. …
These cases clearly demonstrate that membership must be based on group acceptance. That requirement is inherent in the nature of a society. However the society may accept the views of particular persons as sufficient to establish group acceptance.
Eunice O’Keefe, Frederick Charles O’Keefe and Henry Aplin demonstrate the process by which a Waanyi person would assess another person’s claim to Waanyi identity. A Waanyi person will make his or her own enquiries concerning the other person’s descent, country, skins and dreamings. The matter might also be referred to the older people whose memories will go back further. The ultimate question is as to descent, the other matters being evidence of such descent. Although these witnesses spoke of individual enquiries, the decisions mentioned above demonstrate that membership of a society cannot be the product of acceptance by one other member. Acceptance must be by the community at a more general level. It is in that sense that one must consider the anthropologists’ evidence that a person may be accepted gradually as more and more people accept his or her claim to Waanyi descent. In some communities that process will be an informal one, involving gradual acceptance. However, in some cases, the process may become more formal as has occurred in this case.
It is of some significance that Professor Trigger does not attribute the ultimate decision to “senior” Waanyi people. The test is community acceptance. However such acceptance may be demonstrated by the absence of opposition from senior people. Mr Blackwood asserts that a claim to Waanyi identity may be validated by its being accepted by one senior person. This view seems to be based upon his perception that in individual cases, one senior person’s view has apparently been determinative of the question. However such acceptance does not demonstrate that the person is the ultimate decision-maker. It may simply reflect an informal willingness to accept the view. It seems unlikely that any one senior person could resolve such a question on behalf of the group. The three witnesses (Mr O’Keefe, Ms O’Keefe and Mr Aplin) do not suggest that the question would be referred to one older person, but rather to the older people collectively.
I accept Professor Trigger’s evidence that acceptance of a claim to Waanyi identity depends upon recognition by other Waanyi people that the relevant candidate is descended from a recognized Waanyi person. This wording is not precisely in accordance with the wording of the proposed amended description of the claim group which requires that a person be recognized as being a Waanyi person. That wording would, itself, necessitate a decision as to the meaning of the term “Waanyi person”. The amendment is intended to define that term. It can hardly do so by reference to the term itself. Fairly clearly, the intention is that the person must be recognized as being of Waanyi descent.
That leaves for determination only the asserted requirement for self-identification and, possibly, assertion. The proposed amended description requires only self-identification. As I have inferred that Minnie identified as a Waanyi person and asserted as much, and as many of her descendants so assert, the need to determine whether self-identification is a necessary part of Waanyi identity does not directly arise. Nonetheless, the question should be resolved prior to any consent determination. I will seek to explain the position as I see it.
Mr Blackwood takes issue with the proposition that assertion and self-identification of Waanyi identity are parts of the qualifying test for such identity. I doubt whether there is any real distinction between assertion and self-identification. Professor Trigger concedes that for many people, no overt assertion is necessary because the proposition will have been accepted by those with whom he or she lives and has day-to-day contact. Assertion and/or self-identification may be relevant where a person must choose between the different affiliations of his or her parents. That question does not directly concern me for present purposes. Public assertion may also be necessary where a person has not previously been recognized as Waanyi or asserted such affiliation. That situation would arise if he or she had been absent from the centres of Waanyi society, perhaps since birth. The evidence establishes that such a person may re-establish his or her affiliation. In the case of a person believed to have been born to a Waanyi parent in a Waanyi community, descent would never be in doubt. For as long as the person did not assert another identity, that situation would continue.
I am inclined to the view that a person who has not previously been recognized as being Waanyi must demonstrate that he or she identifies as Waanyi, either by assertion or by virtue of the way in which he or she conducts him- or herself. Living according to Waanyi laws and customs may be sufficient. When a person has one Waanyi and one non-Waanyi parent, it may be sufficient that the person has not chosen to abandon Waanyi identity. When a person is born of two Waanyi parents the question of self-identification may never arise. Only in this very wide sense, it is necessary to identify oneself as Waanyi or assert such affiliation.
IS MINNIE RECOGNIZED AS A WAANYI PERSON?
This question is more difficult to answer. As a matter of fact I have held that Minnie identified as a Waanyi person (believing that she was descended from at least one Waanyi parent) and was accepted by Waanyi people at Burketown and at Lawn Hill as being Waanyi. However the case really addresses the entitlement of Minnie’s descendants to Waanyi identity. That question depends upon group acceptance of each of them as being of Waanyi descent which question, in turn, depends primarily upon whether the present Waanyi people accept that Minnie was a Waanyi person. As the applicant asserts, the claim group must determine that question. To date they have refused so to recognize her. I cannot take that decision for them. Nor can I find that during her lifetime, the Waanyi people, as a whole, accepted her as being Waanyi. My findings as to such acceptance are limited to the position as it was at Lawn Hill and at Burketown. It is for the claim group to determine whether that is a sufficient basis for accepting that she was a Waanyi woman, descent from whom is a basis for Waanyi identity. However I should make a few comments about how the matter might be addressed.
In my view the present problem has arisen in a way which makes it difficult to resolve rationally. At a time when a Native Title determination is imminent, the members of the Minnie family have emerged as possible members of the claim group. There are many of them. For reasons of history, mixed descent and geographical dispersal, many Waanyi people do not recognize the family as Waanyi. There are conflicting views on the subject. It is no doubt difficult for the claim group to marshal the various views in order to assess their persuasiveness.
To my mind a meeting of the claim group is unlikely to give the necessary measured consideration to the question in order to arrive at an informed and fair decision. The politics of the situation are likely to confuse and distort views of the evidence which must be considered in order to make that decision. I suggest that those advising the members of the claim group encourage them to seek the considered views of a small committee, perhaps made up of those who presently constitute the applicant. The task would be to examine the evidence in the light of my findings (by which they will be bound) and subject to such legal or other advice as they may deem appropriate. The committee should be asked to formulate a recommendation for adoption by a subsequent meeting of the claim group. I suggest that careful consideration be given to the recorded views of Mr Hookey, Mr Seccin and Mr Peterson and the likely bases of those views. Such views should not be dismissed out of hand merely because they do not comply with preconceived notions concerning the Minnie family.
Although resolution of this matter is primarily for the claim group, any decision may not necessarily be beyond review, given its significance under the Native Title Act. There is, as far as I am aware, no precedent upon which to base a decision as to the availability of judicial relief in the event that persons who, according to traditional laws and customs, are entitled to Native Title rights and interests, are wrongfully excluded from membership of the claim group. Relief may be available, perhaps by analogy to that available for fraud on the power. See Ngurli Ltd v McCann (1953) 90 CLR 425 at 438, Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 at [74] and Gambotto v WCP Pty Ltd (1995) 182 CLR 432. In the latter case, McHugh J identified the fact that the doctrine had been used as the basis for granting relief against oppression of the minority of company shareholders. See also Alexander v Automatice Telephone Company [1900] 2 Ch 56 at 69 and Menier v Hooper’s Telegraph Work (1873-74) LR 9 Ch App 350 at 353-4. Statutory relief has long been available for oppression of minority shareholders, thus removing the need for further development of equitable doctrine in that area.
I will entertain any requests for further findings of fact and submissions as to appropriate orders.
I certify that the preceding two hundred and seventy-one (271) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 18 June 2010
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