Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2)

[2014] FCA 528

FEDERAL COURT OF AUSTRALIA

Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528

Citation:

Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528

Parties:

ELIZABETH DEMPSEY, MARLENE SPEECHLEY, CHARLES PAGE, DAVID RILEY, MAVIS SAMARDIN and THELMA PARKER ON BEHALF OF THE BULARNU, WALUWARRA AND WANGKAYUJURU PEOPLE v STATE OF QUEENSLAND, MOUNT ISA CITY COUNCIL, BOULIA SHIRE COUNCIL, CLONCURRY SHIRE COUNCIL, SOUTHERN CROSS FERTILISERS FORMERLY WMC FERTILISERS PTY LTD, AUSTRALIAN AGRICULTURAL COMPANY PTY LTD, AA COMPANY PTY LTD, FRANK STIRLING BLACKET, RAHDA BLACKET, GAMBAMORA INDUSTRIES PTY LTD ACN 009 941 173, GEORGE BURTON HACON, CATHERINE LOUISE MCLOUGHLIN, JOHN KENNEDY MCLOUGHLIN, MDH PTY LTD ACN 010 114 468, VENLOCK PTY LTD, LORNA ELIZABETH BOGDANEK, HACON HOLDINGS PTY LTD, ROBERT JOHN MCCONACHY T/AS ASHOVER PASTORAL COMPANY and MOUNT ISA MINES LTD

File number:

QUD 6115 of 1998

Judge:

MORTIMER J

Date of judgment:

23 May 2014

Catchwords:

NATIVE TITLE – Application for determination - rights to country said to pass by descent – application specifies apical ancestors – claim group comprises three peoples said to form one society – substantial agreement from respondents that determination in form sought is appropriate – one respondent disputes contention that Wangkayujuru people are part of same society as Bularnu and Waluwarra – one respondent contends for inclusion of another apical ancestor on any determination – evidence establishes that Bularnu, Waluwarra and Wangkayujuru form one society – insufficient evidence to find additional apical ancestor should be included – applicant entitled to determination in the form sought

Legislation:

Aboriginal Land Act 1991 (Qld) s 8.01
Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld)
Evidence Act 1995 (Cth) s 53
Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AJ
Native Title (Queensland) Act 1993 (Qld)
Native Title Act 1993 (Cth) ss 61, 62, 81, 87, 223, 225, 251B

Federal Court Rules 2011 (Cth) rr 1.40, 34.127

Cases cited:

Akiba v Commonwealth (2013) 300 ALR 1; [2013] HCA 33
Akiba v Queensland (2010) 204 FCR 1; [2010] FCA 643
Aplin on behalf of the Pitta Pitta People v Queensland [2012] FCA 883
Aplin on behalf ofthe Waanyi Peoples v Queensland [2010] FCA 625
Banjima People v Western Australia (2013) 305 ALR 1; [2013] FCA 868
Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Commonwealth v Yarmirr (2000) 101 FCR 171; [1999] FCA 1668
Daniel v Western Australia [2003] FCA 666
De Rose v South Australia [2002] FCA 1342
Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v Queensland [2014] FCA 140
Eringa, Eringa No 2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v South Australia [2008] FCA 1370
Gumana v Northern Territory (2005) 141 FCR 457; [2005] FCA 50
Hammerton v Honey (1876) 24 WR 603
Jango v Northern Territory (2006) 152 FCR 150; [2006] FCA 318
King (on behalf of the Eringa Native Title Claim Groupv South Australia (2011) 285 ALR 454; [2011] FCA 1386
King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v South Australia [2011] FCA 1387
Mabo v Queensland(No 2) (1992) 175 CLR 1
McWhinney v Melbourne Health (2011) 31 VR 285; [2011] VSCA 22
Members of the Yorta YortaAboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135
Risk v Northern Territory (2007) 240 ALR 75; [2007] FCAFC 46
Sampi(on behalf of the Bardi and Jawi People) v Western Australia [2005] FCA 777 at [48] per French J;
Sampi v Western Australia (2010) 266 ALR 537; [2010] FCAFC 26
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shaw v Wolf (1998) 83 FCR 113
Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337
Ward (on behalf of the Miriuwung and Gajerrong People) v Western Australia (1998) 159 ALR 483
Western Australia v Graham (on behalf of the NgadjuPeople) (2013) 305 ALR 452; [2013] FCAFC 143
Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28
Wilson v Minister for Land and Water Conservation (NSW) (2003) 126 FCR 500; [2003] FCA 307

Burke, P, Law’s Anthropology: From Ethnography to Expert Testimony in Native Title (ANU EPress, Canberra, 2011)
Gray, Peter R A, “Saying It Like It Is: Oral Traditions, Legal Systems and Records” (1998) 26 Archives and Manuscripts 248

Date of hearing:

21–25 October 2013; 28–29 October 2013; 24-25 February 2014; 27–28 February 2014

Date of last submissions:

28 February 2014

Place:

Brisbane

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

907

Counsel for the Applicant:

Mr R Blowes SC and Ms S Phillips

Solicitor for the Applicant

Queensland South Native Title Services

Counsel for the State of Queensland:

Ms H Bowskill QC

Solicitor for the State of Queensland:

Counsel for Mrs Bogdanek:

Counsel for Cloncurry Shire Council, Boulia Shire Council and Mount Isa City Council:

Solicitor for Cloncurry Shire Coucil, Boulia Shire Council and Mount Isa Shire Council:

Counsel for the Pastoral Respondents:

Solicitor for the Pastoral Respondents:

Counsel for Southern Cross Fertilisers:

Solicitor for Southern Cross Fertilisers:

Counsel for Mount Isa Mines Ltd:

Solicitor for Mt Isa Mines Ltd:

Crown Law

Mrs Bogdanek appeared in person

No Appearance

Gilkerson Legal

No Appearance

Thynne & Macartney

No Appearance

King & Wood Mallesons

No Appearance

Allens

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6115 of 1998

BETWEEN:

ELIZABETH DEMPSEY
First Applicant

MARLENE SPEECHLEY
Second Applicant

CHARLES PAGE
Third Applicant

DAVID RILEY
Fourth Applicant

MAVIS SAMARDIN
Fifth Applicant

THELMA PARKER
Sixth Applicant

AND:

STATE OF QUEENSLAND
First Respondent

MOUNT ISA CITY COUNCIL
Second Respondent

BOULIA SHIRE COUNCIL
Third Respondent

CLONCURRY SHIRE COUNCIL
Fourth Respondent

SOUTHERN CROSS FERTILISERS FORMERLY WMC FERTILISERS PTY LTD
Fifth Respondent

AUSTRALIAN AGRICULTURAL COMPANY PTY LTD
Sixth Respondent

AA COMPANY PTY LTD
Seventh Respondent

FRANK STIRLING BLACKET
Eight Respondent

RAHDA BLACKET
Ninth Respondent

GAMBAMORA INDUSTRIES PTY LTD ACN 009 941 173
Tenth Respondent

GEORGE BURTON HACON
Eleventh Respondent

CATHERINE LOUISE MCLOUGHLIN
Twelfth Respondent

JOHN KENNEDY MCLOUGHLIN
Thirteenth Respondent

MDH PTY LTD ACN 010 114 468
Fourteenth Respondent

VENLOCK PTY LTD
Fifteenth Respondent

LORNA ELIZABETH BOGDANEK
Sixteenth Respondent

HACON HOLDINGS PTY LTD
Seventeenth Respondent

ROBERT JOHN MCCONACHY T/AS ASHOVER PASTORAL COMPANY
Eighteenth Respondent

MOUNT ISA MINES LTD
Nineteenth Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	23 may 2014
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:
The persons who constitute the “claim group” as that term is defined in paragraph 1 of the statement of claim dated 18 February 2013 and filed in this proceeding are entitled to a determination of native title in accordance with the terms of the proposed determination annexed to the statement of claim.

THE COURT DIRECTS THAT:

1. On or before 12.00pm on 26 May 2014, the applicant is to prepare and file a proposed final form of native title determination that is consistent with the Court’s reasons for judgment.

2. No later than 4.00pm on 2 June 2014, the applicant is to file and serve any proposed further orders in relation to the documents subject to the Court’s orders made on 20 December 2013, as extended to the two reports of Mr Southon by order made on 27 February 2014, together with any submissions in support of those proposed orders, limited to 5 pages.

3. No later than 4.00pm on 10 June 2014, the State and Mrs Bogdanek are to file and serve any submissions they wish to make in relation to any proposed further orders filed in accordance with paragraph 2 of these directions, limited to 5 pages.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6115 of 1998

BETWEEN:	BULARNU WALUWARRA & WANGKAYUJURU PEOPLE Applicant
AND:	STATE OF QUEENSLAND Respondent

JUDGE:	MORTIMER J
DATE:	23 may 2014
PLACE:	BRISBANE

REASONS FOR JUDGMENT

OVERVIEW........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[1]
PART 1........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[10]
A note on spellings, words and descriptions used........ ........ ........ ........ ........ ........ ......	[10]
HISTORY OF THE APPLICATION........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[19]
THE CLAIM........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[29]
The importance of the Georgina River........ ........ ........ ........ ........ ........ ........ ........ .......	[32]
Aspects of the claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[36]
Contentious Boundaries........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[42]
Areas outside the claim boundaries: Lake Nash........ ........ ........ ........ ........ ........ .......	[55]
THE ACTIVE PARTIES BY THE TIME OF HEARING AND THE COURSE OF THE HEARING........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[57]
CONTENTIOUS MATTERS TO BE DETERMINED........ ........ ........ ........ ........ ........	[71]
The way Mrs Bogdanek put her claims to group membership, and to country, in her own evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[72]
Conclusion: how Mrs Bogdanek’s claims should be approached........ ........ ........ ....	[114]
APPLICABLE PRINCIPLES GOVERNING THE CLAIM........ ........ ........ ........ .......	[121]
PART 2........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[148]
THE EVIDENCE AND THE WITNESSES........ ........ ........ ........ ........ ........ ........ ........ ..	[148]
The applicant’s witnesses: a summary and some specific findings........ ........ ........ ..	[153]
The older people who had passed away by the time of trial........ ........ ........ ........ .....	[153]
The applicant’s other witnesses who did not give oral evidence........ ........ ........ ........ .	[173]
The applicant’s witnesses in Mount Isa........ ........ ........ ........ ........ ........ ........ ........ .......	[178]
Bularnu witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[188]
Waluwarra witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[193]
Wangkayujuru witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[213]
Mrs Bogdanek’s witnesses: a summary and some specific findings........ ........ ....	[229]
Mrs Bogdanek’s own evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[291]
THE DOCUMENTARY EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[298]
Historical records........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[298]
Earlier reports referring to matters to be determined in this proceeding........ ......	[304]
Simpson Desert Land Claim Tribunal report........ ........ ........ ........ ........ ........ ........ ...	[319]
Breen linguistic report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[337]
Memmott and Sackett Waluwarra report........ ........ ........ ........ ........ ........ ........ ........ .	[345]
Memmott and Sackett Wangkamanha report........ ........ ........ ........ ........ ........ ........ ...	[353]
Mayo 2012 report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[372]
Southon 2012 report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[378]
THE EXPERT EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[381]
Dr Palmer’s evidence generally........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[381]
Dr Palmer’s 2009 report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[390]
The joint Palmer/Southon report........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[426]
Dr Palmer’s 2013 report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[440]
PART 3........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[455]
FINDINGS ON MATTERS NECESSARY FOR A DETERMINATION........ ........ ..	[455]
HISTORICAL BACKGROUND........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[458]
Sovereignty and first sustained contact in the claim area........ ........ ........ ........ ........	[460]
THE ENVIRONMENT OF THE CLAIM AREA........ ........ ........ ........ ........ ........ ........ .	[463]
THE IMPORTANCE OF IDA TOBY........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[478]
CLAIM GROUP IDENTIFICATION AND MEMBERSHIP........ ........ ........ ........ .....	[483]
The basis of a claim for right to country is generally by descent........ ........ ........ .....	[483]
Apical Ancestors........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[495]
Charlie Toby and Jinny........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[498]
Jack Wilde........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[502]
George (Snr) Katchinda........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[505]
Derby Daylight........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[506]
Pipalkarinya........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[507]
Nellie Lynch........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[510]
Dr Palmer’s conclusions on possession of country by apical ancestors........ ........ .	[530]
Findings on apical ancestors........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[532]
TRADITIONAL LAWS AND CUSTOMS OF THE CLAIM GROUP IN RELATION TO THE CLAIM AREA........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[533]
A normative rule about entitlement to rights and interests in the claim area........	[537]
Control over country, speaking for country........ ........ ........ ........ ........ ........ ........ ......	[548]
Dreaming or stories........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[557]
Transmission of knowledge and any restrictions on transmission........ ........ ........ ..	[589]
Death and rites associated with death........ ........ ........ ........ ........ ........ ........ ........ ........	[604]
Giving of respect to senior members of the group........ ........ ........ ........ ........ ........ ....	[610]
Existence and use of skin system........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[620]
Rituals belonging to men........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[640]
Rainmaking rituals........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[651]
Use of language........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[654]
Nature of the laws and customs relied on........ ........ ........ ........ ........ ........ ........ ........ ...	[669]
THE EFFECT OF THE LAW AND CUSTOMS IN GIVING A CONNECTION TO THE LAND IN THE CLAIM AREA........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[673]
MAINTENANCE OF CONNECTION/CONTINUITY........ ........ ........ ........ ........ .......	[686]
SUMMARY OF FINDINGS ON MATTERS NECESSARY FOR A DETERMINATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[708]
FINDINGS ON CONTENTIOUS MATTERS CAPPABLE OF AFFECTING ANY DETERMINATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[719]
IDENTIFICATION OF SOCIETY: LEGAL PRINCIPLES........ ........ ........ ........ .......	[720]
ARE THE WANGKAYUJURU PEOPLE PART OF THE SAME SOCIETY AS BULARNU AND WALUWARRA?........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[728]
Mrs Bogdanek’s arguments in summary........ ........ ........ ........ ........ ........ ........ ........ ...	[732]
The applicant’s response........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[740]
The State’s response........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[747]
Findings........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[749]
IS THERE ANOTHER APICAL ANCESTOR?........ ........ ........ ........ ........ ........ ........ ...	[770]
Mrs Bogdanek’s contentions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[771]
The applicant’s contentions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[776]
The State’s argument........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[781]
FINDINGS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[789]
Dr Palmer’s addendum to his supplementary report........ ........ ........ ........ ........ .......	[823]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[844]
REMAINING ISSUES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[855]
Ted and Artie Major........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[855]
Jimmy Major and his sons Ted and Artie........ ........ ........ ........ ........ ........ ........ ........ .	[856]
Belia Toby, Deemera and Joe Rose........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[868]
TWO FINAL MATTERS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[886]
How Mrs Bogdanek’s contentions have been treated over the years........ ........ ......	[886]
Contentions made by Mrs Bogdanek which are not addressed in these reasons...	[891]
PART 5........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[902]
THE ORDERS TO BE MADE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[902]
SUPPRESSION AND NON-PUBLICATION ORDERS........ ........ ........ ........ ........ ......	[904]

OVERVIEW

1. The applicant, on behalf of a claimant group comprising descendants of named ancestors who identify as members of the Bularnu, Waluwarra and Wangkayujuru People, has applied for a native title determination pursuant to the Native Title Act 1993 (Cth) (NTA) over land and waters in the central-western region of Queensland, between Lake Nash and Dajarra, adjacent to the border with the Northern Territory and south-west of the town of Mount Isa. A map showing the claim area is Appendix A to these reasons for judgment. The applicant, for the purposes of s 61(2) of the NTA, comprises Elizabeth Dempsey, Marlene Speechley, Charles Page, David Riley, Mavis Sarmardin and Thelma Parker.

2. The application and the terms of the native title determination sought in this proceeding recognise the extinguishment of native title in whole or in part over a large proportion of the claim area, as well as recognising the spectrum of rights and interests in land that now exists within the claim area. The areas of land over which a determination of native title is sought, to the exclusion of all others, are small. There are portions of the claim area for which a determination in respect of non-exclusive use is sought, and there are very substantial parts of the claim area (mostly those parts occupied by permanent improvements and pursuant to pastoral leases) where the proposed determination recognises that native title does not exist and has been extinguished.

3. All interested parties consented to a determination of native title in the form sought, save for a group of people who were — in fact if not in law — represented by Lorna Bogdanek. Mrs Bogdanek’s extended family group are descendants of a Scottish pastoralist called James Craigie and an indigenous woman known as “Bunny”, sometimes called “Bunny Craigie”. James Craigie owned and operated Roxborough Station, which is in the south of the claim area. Mrs Bogdanek was joined to this proceeding as a respondent in September 2011 and has been an active contradictor to the applicant’s application, insofar as it concerns what is identified in the claim as Wangkayujuru country in the south of the claim area, and insofar as it is said by the applicant that the descendants of James Craigie and Bunny are not entitled to be part of the claim group. Mrs Bogdanek did not seek in her defence to contradict the applicant’s claims to Bularnu and Waluwarra country in the centre and north of the claim area.

4. While, as I have observed, Mrs Bogdanek has not sought directly to contest the application for a determination of native title by Bularnu and Waluwarra people over those parts of the claim area they identify as their country, the malleable nature of her contentions, and the way in which her contentions responded to information she either discovered or was presented with during the course of the proceeding, meant that inevitably her challenges widened.

5. It remains the case, however, as the applicant has pointed out in their final submissions, that there are considerable parts of the applicant’s statement of claim, and evidence, which were not contested by either the State or Mrs Bogdanek in their respective defences. Nor were those parts contested in evidence or submissions.

6. Nevertheless, with an unrepresented litigant, evolving evidence and a proceeding of this nature and extent, it is inappropriate to rely too heavily on parties’ pleadings to determine the scope of the matters which should be the subject of findings and addressed in reasons for judgment.

7. I have decided to take a broader approach. First, I have attempted to deal with the matters I consider relevant to the determination of native title as sought in the application, without too heavy a reliance on admissions by the State and Mrs Bogdanek in their pleadings. Second, I have attempted to identify the contentious issues raised by Mrs Bogdanek which are capable of bearing on the making of any such determination. There were other contentious matters, to which I have referred briefly at [891] at the end of these reasons. Although important to Mrs Bogdanek and her family, these matters were not capable of bearing on the determination of native title and I have explained there why I have not addressed them in detail.

8. For the reasons set out in this judgment, I have concluded that there should be a determination of native title over the whole of the claim area in the form sought. I have accordingly concluded that Mrs Bogdanek’s arguments about Wangkayujuru country, and about her family’s membership of the claim group, do not preclude a determination of native title in that form. Nor do any of the other issues she sought to raise as the proceeding progressed.

9. This judgment is divided into five parts. Part 1 deals with necessary background, including the progress of this application, and the active parties. Part 2 sets out the evidence and my findings in relation to aspects of it. Part 3 then deals with the matters necessary for a determination of native title. Part 4 deals with contentions made by Mrs Bogdanek which are capable of affecting any determination of native title I have otherwise concluded should be made, and her contentions which are not so capable. Part 5 consists of my reasons for making orders in the form I have made.

PART 1

A note on spellings, words and descriptions used

1. Choices need to be made about how to spell many words used in the evidence, how to refer to places, and how to refer to people.

2. As to people, I have adopted the practice of referring to all witnesses by their full name, and from time to time depending on context will also refer to them by “Mr” and “Mrs” and their surnames, which I was informed during the hearing was an appropriate form of address. For people who are referred to frequently in the evidence but were not witnesses, especially people from previous generations, I have used the person’s first and second name on each occasion. For example, Ida Toby, Derby Daylight. Where relevant, I have referred to any other ways in which these people were known, such as “Walgra George”.

3. There were spelling discrepancies in respect of particular individuals. Henry Katchinda’s surname was spelt “Catchinda” in some of the material, including by Dr Palmer. However his witness statement bears a “K” so that is what I have used. The surname of other members of his family was also inconsistently spelt in the material and I have adopted a “K” instead of a “C”. The names of the two rainmakers, Belia and Deemera, were variously spelt. I have adopted the forms which in my opinion were most regularly used by the witnesses.

4. There was little or no uniformity in the spellings of “Bularnu” (sometimes with an “h”) and “Wangkayujuru” (several spellings), although “Waluwarra” did seem to be spelt consistently. I have taken choices for spellings of the groups principally from the applicant’s material, although even throughout that material there were inconsistencies. I have adopted the spelling of Bularnu, Waluwarra and Wangkayujuru.

5. Similarly, there was no uniformity in the way that the names of many ancestors were spelt. Names of Dreamings, or creatures in Dreamings, also often had different spellings. For example, the Kunmurti — the serpent which lives in the Georgina River — is also spelt “Kunmuddi”, “Gunmuddi”, “Kunmudee” or “Kanmari”. The first spelling seems to be the most predominant and I have adopted that.

6. Place names were given a reasonably uniform spelling, especially where those places are now mapped. I have adopted the spellings from the maps in evidence. Lake Nash is also known as Alpurrurulam, the latter being a smaller area of aboriginal land excised from the Lake Nash Station. Most witnesses and most of the evidence referred to Lake Nash even when it was clear they meant Alpurrurulam, so I have adopted that reference.

7. It was common amongst most witnesses, when speaking of places they were born, grew up or lived on, to do so by reference to the names of the pastoral stations covering much of the this area of south-west Queensland and relevant parts of the Northern Territory. Most of those stations were established in the 1870s, and there were maps in evidence showing the stations as at 1882 and 1895. Where in these reasons I recount the evidence referring to “Roxborough” or “Carandotta” or “Headingly” or “Lake Nash” and the like, these are all references to the areas of land on which pastoral stations bearing those names were situated. The evidence showed that the location of a station called “Glenormiston” may have changed during the late 19^th century.

8. There was a variety of spellings for other language and group names from areas adjacent to the claim area, or sufficiently connected to require mention. In those cases, I have generally adopted the spelling used in the particular evidence to which I refer. For example, the people to the south and west of the claim area are called by Dr Palmer “Andegerebinha”. Most of the indigenous witnesses referred to those people as “Antekerrepenh”, which Dr Palmer recognised as an alternative spelling. I have used the latter.

9. I have adopted the spelling of Wangkamadla and Wangkamanha for the two groups to the south of the claim area, of which Mrs Bogdanek has claimed membership. I take this from the documentary and expert evidence, and it also seems to be the spelling adopted on behalf of the applicant. Mrs Bogdanek did not use consistent spelling across her evidence, but I did not understand her to make any particular submission based on the different spellings available for these groups.

HISTORY OF THE APPLICATION

1. The matter commenced as an application by the Waluwarra/Georgina River People, lodged with the National Native Title Tribunal on 6 February 1997. By virtue of amendments made to the NTA, on 30 September 1998 the matter became a proceeding of this Court numbered QUD6115 of 1998. Respondent parties then included the State of Queensland and the Tjilpatha Aboriginal Corporation. A second application was filed on 12 March 2002 (QUD6006 of 2002), and, on 29 July 2009, both applications were amended to change the name of the claimant group to Bularnu, Waluwarra and Wangkayujuru Peoples, and to amend the boundaries of the claims, in response to requests made to the applicant’s solicitors on behalf of the Wangkamadla/Wangkamanha Peoples.

2. On the application made for the purposes of s 61(1) of the NTA, the change in names was explained thus:

   The claim group members prefer to name the claim as being on behalf of the Bularnu, Waluwarra and Wangkayujuru peoples rather than the former generic reference to them as the Waluwarra/Georgina River Peoples.

3. More will need to be said in these reasons about the way the group identifies, and what contentions have been made about this issue.

4. On 28 May 2010, for the purposes of entering into substantive mediation of both applications, the State accepted that the Bularnu, Waluwarra and Wangkayujuru claimant group have a connection with the land and waters over which the claim is made (in the sense required by s 223(1)(b) of the NTA). In light of this acceptance, on 12 July 2010 Dowsett J made orders requiring the parties to take all reasonable steps to facilitate a consent determination in early October 2011. On 7 March 2011, the Tjilpatha Aboriginal Corporation ceased to be a party to both proceedings.

5. On 15 June 2011, the Court was notified that the applicant had become aware that the Wangkamadla/Wangkamanha group were asserting rights over the southern part of the area subject to the first Bularnu, Waluwarra and Wangkayujuru claim. To this end, on 13 July 2011 Mrs Avelina Tarrago and Mrs Isabel Tarrago, who claimed to be members of the Wangkamadla group, were joined as respondents to the first Bularnu, Waluwarra and Wangkayujuru application.

6. On 26 September 2011, Mrs Lorna Bogdanek and Mrs Berniece Brandon were joined as respondents to both Bularnu, Waluwarra and Wangkayujuru proceedings. Mrs Bogdanek and Mrs Brandon made claims as Wangkamadla women, asserting interests in parts of the land covered by the claim — to the south, south-east and south-west of the waterways that run into Mangala Waterhole.

7. On 26 April 2012, on the basis of notices of wishing to cease to be a party filed on 17 April 2012, Dowsett J made orders that Mrs Avelina Tarrago and Mrs Isabel Tarrago cease to be parties to the first Bularnu, Waluwarra and Wangkayujuru proceeding. On 24 April 2012, the applicant filed an interlocutory application seeking to have Mrs Bogdanek and Mrs Brandon removed as parties. On 14 July 2012, agreement was reached with Mrs Brandon that she would withdraw as a party and, on 24 July 2012, Mrs Brandon filed a notice of wishing to cease to be a party to both proceedings.

8. On 26 November 2012, leave was granted to the applicant to withdraw the interlocutory application seeking to remove Mrs Bogdanek from the proceedings. On 21 December 2012, Dowsett J made orders combining the two Bularnu, Waluwarra and Wangkayujuru proceedings (QUD6115/1998 and QUD6006/2002) and an amended application was filed by the applicant on 14 January 2013. It is this application that forms the basis of the proceeding currently before the Court.

9. What has occurred in this proceeding since the intervention of Mrs Isabel Tarrago and Mrs Avelina Tarrago, as well as Mrs Bogdanek, is important in understanding the course this proceeding has taken. These interveners all made essentially the same kind of claim: that they were Wangkamadla/Wangkamanha people, and that they held rights to country which extended into the southern part of the claim area. The evidence which they adduced to support their applications to become parties formed the basis of subsequent steps, many taken by agreement with those parties, for further anthropological investigations to be undertaken. These steps included the preparation by Mr Michael Southon of two reports, and — critically — the preparation by Dr Palmer of a joint report with Mr Southon in April 2012, and a further report by Dr Palmer in 2013, designed to address these issues.

10. After the production of that report, Mrs Avelina Tarrago and Mrs Isabel Tarrago filed notices wishing to cease to be parties. Mrs Bogdanek however has continued to press her contentions.

THE CLAIM

1. The area which is the subject of the claim is identified in the map which is Appendix A to these reasons for judgment.

2. Simplifying the matter somewhat, but in my opinion consistently with the evidence, the area to the north of Toby Creek is associated with Bularnu people, the area between Toby Creek and Mangala Waterhole (and the river course which runs north-east from Mangala), is identified with Waluwarra people, and the area to the south of Mangala Waterhole, extending beyond the claim area down to Cottonbush Creek, is identified with Wangkayujuru people.

3. Artificial boundaries are drawn at the Northern Territory border. To the east and the south-east, the borders of the claim are marked by the Pitta Pitta native title determination, and to the north, the Kalkadoon and Indjalandji-Dhidhanu native title determinations.

The importance of the Georgina River

1. The Georgina River and its tributaries runs right through the claim area. It flows into the claim area from the west, originating on the Barkly Tableland north of Camooweal. It then flows through the north-western part of the Northern Territory, through the Lake Nash area and across the border into Queensland. The Georgina River is a central feature, in every sense, of the lives, connections, customs and traditions of the indigenous people in this area. The river features in almost all aspects of the evidence in this proceeding, and in these reasons for judgment. The river is the home of Kunmurti, the water snake and a central Dreaming figure for the claimant group. The river is where newborns are bathed to introduce them to country, where spirits are greeted and asked to help in good catches of fish. It is the source of food and sustenance in all respects of the people of the claim area.

2. One of the applicant’s witnesses in this proceeding, David Riley, described the Georgina in the following way:

   The Georgina River, it’s channel country - lots of channels going into the main river, like Templeton Creek into the Georgina. When we move around that country people mostly follow the river, go hunting along the river. …
   The dreaming are mainly along the river. Some of them are in the channels like Templeton Creek.

3. Another one of the applicant’s witnesses, Stuart Rusty, described his early life around the Georgina River in this way:

   The Georgina River is a permanent water source. When we were children we would often go down there fishing and swimming. There are also a couple of soaks down there, where you can dig down and get clean water. There is one down a bit further at the Pig Yard. The old people would always wet their heads and wash their arms before going in to the water. My old Aunty Eileen Belia would always say something to the River when we went fishing and then they would always catch fish all the time.
   When we were kids we used to collect water from the soaks and carry it back to Marmanya. We’d carry the water back in a billy can with a yoke on our shoulders.

4. There were striking aspects of the evidence about the way witnesses felt about the Georgina. For example, another of the applicant’s witnesses, Joseph Dempsey, described his affiliation with the river in this way: “I feel more comfortable along the Georgina River than in my own house.”

Aspects of the claim

1. The application identifies six apical ancestors, who are said to be the persons from each of the three groups who held, at the time of sovereignty, native title interests in the area. Those people, identified in Sch A to the further amended application and Sch 3 to the proposed determination attached to the applicant’s statement of claim, are: Charlie Toby and Jinny; Jack Wilde; Nellie Lynch; George (Snr) Katchinda; Derby Daylight and Pipalkarinya.

2. The native title rights and interests claimed, as set out in the further amended application are:

   1. Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where s.238 and/or ss.47, 47A and 47B apply), the Bularnu, Waluwarra and Wangkayujuru Peoples claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.

   2. Over areas where a claim to exclusive possession cannot be recognised, the following rights and interests are claimed:

   (a) the right to access the application area
   (b) the right to camp on the application area
   (c) the right to erect shelters on the application area
   (d) the right to live on the application area
   (e) the right to move about the application area
   (f) the right to hold meetings on the application area
   (g) the right to hunt on the application area
   (h) the right to fish on the application area
   (i) the right to cook on the application area
   (j) the right to have access to and use the natural water resources of the application area
   (k) the right to gather and use the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs
   (l) the right to conduct ceremonies on the application area
   (m) the right to participate in cultural activities on the application area
   (n) the right to maintain and protect places of importance under traditional laws, customs and practices in the application area
   (o) the right to conduct burials on the application area
   (p) the right to speak authoritatively about the application area among other Aboriginal People in accordance with traditional laws and customs
   (q) the right to make decisions about the use and enjoyment of the area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged and observed by the native title holders
   (r) the right to transmit the cultural heritage of the native title claim group including knowledge of particular sites;
   (s) the right to take and use, share and exchange the traditional resources of the application area.

   3. The native title rights are subject to:

   (a) the valid laws of the State of Queensland and the Commonwealth of Australia
   (b) the rights (past or present) conferred upon persons pursuant to the laws of the Commonwealth and the laws of the State of Queensland.

1. In the further amended application, the association with the area by the claim group is described in the following terms:

   The traditional territory of the claim group was wholly occupied by them in 1788 and up until the mid 1860s when permanent settlers including pastoralists began to arrive.
   The members of the claim group have maintained continuity of occupation, connection and association with the area covered by the application from pre-contact times to the present day.

2. The traditional laws and customs are then described:

   Families in the native title claim group have traditional links to the land and waters covered by pastoral stations within the claim area under the traditional laws and customs observed by them. Each of the descent groups have been able to maintain their traditional laws and customs despite white settlement in the area by remaining on their traditional country through working on the stations since the stations were first established in the late nineteenth century.
   During the late 19th and throughout the 20th century most members of each family group worked in the pastoral industry. By being able to remain on their traditional country as pastoral workers they maintained and passed on to succeeding generations traditional knowledge and skills concerning their country. The traditional laws acknowledged by, and traditional customs observed by the claim group govern their conduct on their country and in relation to each other and their neighbours and give rise to the claimed native title rights and interests.

3. The continued connection with the land subject to the claim in accordance with those laws and customs is said to be as follows:

   A major residential location for claimants within the claim boundary is Urandangie. Other major residential centres are just outside the present claim boundaries being Dajarra near the south eastern edge of the claim area, Lake Nash (Alpurrurulam) in the northwest, Mount Isa in the north east. This continuing proximity to the claim area means ongoing observation of laws, customs, practices and activities that connect members of the claim group to the claim area are easily part of the lives of claim group members. Those laws and customs continue to be observed as members of the claim group continue to undertake activities in the claim area which are governed by the traditional laws and customs by which they are bound to the land.

   Those activities include camping, hunting, fishing, gathering bush foods and other
   resources, protection and management of cultural sites and cultural heritage work including surveys and cultural heritage education. Meetings and other traditional activities involved in passing on traditional knowledge about the claim area, continue amongst members of the claim group.

   Attendance at ceremonies on their land and fulfilling reciprocal duties at the ceremonies of their neighbours contributes to the continuity of the traditional laws and customs of the claim group.

4. For the purposes of s 61 of the NTA, there was no dispute in the present application that the applicant had been authorised in accordance with s 251B of the NTA to make the application for determination of native title. Nor was there any challenge to this Court’s jurisdiction to make such a determination pursuant to s 81 of the NTA.

Contentious Boundaries

1. The contentious area within the claim boundary was never precisely defined by Mrs Bogdanek, in terms of where she said Wangkamadla/Wangkamanha country started and finished. What was clear was that she asserted it included the area around Roxborough Station.

2. Similarly, the applicant’s evidence was reasonably general about where the country of each group started and finished. Some boundaries were stated consistently — such as Moonah Creek marking the boundary between Waluwarra and Wangkayujuru. However, Sally Maher’s evidence in other respects makes the situation less clear. Having identified Moonah Creek as a boundary, she goes on to state:

   So everybody on the north side is Waluwarra too. Little bit on the other side is Waluwarra but my great grandmother (Granny Queen’s mother Jinny) said that was her mother’s country. You go north of Duck Bore not that far. South of that line goes right back down to Roxborough - Granny said she claimed this as Waluwarra country. Herbert Downs where her mother was born is a bit further this way.
   It has Cotton Bush and you go right into Herbert Downs. Herbert Downs is not a station anymore. It used to be a station in Marion Downs. Here my Granny Queen’s mother arrived back to Dajarra to Moonah Creek- you follow the ridge from Dajarra and go north to Mt Isa and that’s where our claim comes. My grandmother said “we’ll let my brothers have them- that Urandangi”. Her brother George, he lived all his life there. This is Wayne Age’s grandfather. That was for him to speak for and she had responsibility for the bottom half.

3. Two matters should be observed about this evidence. First, it explains the cartographical evidence showing Waluwarra country at the eastern side of the claim area, as well as to the north and west of Wangkayujuru country. In other words, the evidence appears to suggest that Waluwarra country occupies by far the largest part of the claim area, and running north-east to south-west through the lower third is a “slice” of country, bounded by Moonah Creek to the north, which the applicant’s witnesses all accept is Wangkayujuru country.

4. Second, Mrs Maher identifies country outside the claim area to the south as the country of her great-grandmother Jinny: Herbert Downs, or Cottonbush, where Mrs Maher’s evidence is Jinny was born, is some way to the south of the southern claim boundary. Like the current location of Glenormiston, which is to the north-west of Herbert Downs, it is on the Georgina River. That, it would seem, is consistent with evidence suggesting that Wangkayujuru country may include areas to the south of the claim area.

5. In oral evidence, Mrs Maher was able to give a persuasive account, without reference to maps, of the boundaries of Wangkayujuru country, saying “I know my country like the back of my hand”. She said:

   From Moonah Creek runs down to Georgina and the ridges that going back to Dajarra. It curves in and go back to Cottonbush and go past Kelly’s Creek and hit the Territory, go right back up to Duck and there’s - from where Moonah Creek go in this side of Mangala, just go in angle that hits near Duck along the northern - south side of Dock.

6. When Mrs Maher spoke of her country “curving back” to Cottonbush, she expanded on this in later evidence by saying that what she meant was that when Moonah Creek (which is the northern boundary) hits the Georgina River, her country then turns westwards, towards the Northern Territory, until Duck Creek and Duck Hole are reached close to the Northern Territory border. Mrs Maher’s evidence is her country then runs south down to Pituri Creek, and then back along Pituri Creek, now travelling in a south-easterly direction, back to Cottonbush Creek, which is on Herbert Downs Station. The maps in evidence show that Pituri Creek runs south-easterly and crosses outside the southern boundary of the claim area, continuing south-easterly until it runs into the Georgina River, and then continues in a more easterly direction across to Cottonbush Creek, which is to the south-east of the southern boundary of the claim area — as Mrs Maher said, near Herbert Downs.

7. Thus, it seems clear on the evidence that Wangkayujuru country goes some way south of the claim boundary. It would seem from other aspects of Mrs Maher’s evidence, which I accept, that the area around Glenormiston which is to the south of those parts Mrs Maher identified as Wangkayujuru, is Yurinya country. That appears from some questions asked of Mrs Maher by counsel for the State:

   MS BOWSKILL: That place Glenormiston which is down the south - - -
   SALLY MAHER: Yes.
   MS BOWSKILL: - - - who looks after that country?
   SALLY MAHER: Charlie Trottman.
   MS BOWSKILL: And Charlie Trottman - - -
   SALLY MAHER: That’s – that’s Yurinya country.
   MS BOWSKILL: Yurinya?
   SALLY MAHER: Yes.
   MS BOWSKILL: Yurinya. And in paragraph 130 of your outline - this is on page 226 - you say there:
   After Headingly I left to go to Glenormiston. There were a lot of our old people there. They weren’t from our mob but they were always with us in Glenormiston Station.
   I wanted to ask you, what do you mean there when you say a lot of your old people but they weren’t from your mob?
   SALLY MAHER: Well, they were good friends and they shared. If Granny Queen went down in their country, she was made welcome, and if they ever come up to our country, they were made welcome.
   MS BOWSKILL: So Granny Queen would go down there to Glenormiston?
   SALLY MAHER: Yes, went down to Glenormiston a hell of a lot, yes.
   MS BOWSKILL: And Charlie Trottman, he would come back up?
   SALLY MAHER: Charlie Trottman, his wife used to live at Glenormiston when we were kids.
   MS BOWSKILL: And so that Glenormiston, if that's Yurinya, where does Wangkamahna come in, your dad’s country?
   SALLY MAHER: Wangkamahna is next door to Yurinya country.
   MS BOWSKILL: Next door as in east or - - -
   SALLY MAHER: On the - - -
   MS BOWSKILL: - - - west?
   SALLY MAHER: - - - southern side.
   MS BOWSKILL: On the southern side.
   SALLY MAHER: Yes.
   MS BOWSKILL: So as you go down the south you go to Yurinya around Glenormiston.
   SALLY MAHER: And Wangkamahna, yes.
   MS BOWSKILL: And then Wangkamahna further south.
   SALLY MAHER: Yes, that’s my dad's country.

8. It can be seen that Mrs Maher’s evidence places Wangkamanha (and perhaps Wangkamadla) country further to the south, in the area of the Simpson Desert. Her evidence is consistent with the evidence of her brother, Henry Page, and other witnesses to the Simpson Desert Land Claim Tribunal, and to the findings in that report.

9. This account is confirmed by the evidence of Henry Page in this proceeding:

   People like Charlie Trottman was related to Granny too. He didn’t have any family and he called me ‘my brother’ through the law. He lived on Glen Ormiston - on Wangkayujuru country down to Toko Ranges on Glen Ormiston Station.

10. Mrs Bogdanek’s contentions about the areas in dispute in the south of the claim area generally were couched in several different ways. It was either contended that these areas were not Wangkayujuru, or were the country of her family, or were Wangkamadla and Wangkamanha country. As I understood both her submissions and her evidence, Mrs Bogdanek explained the need to put the contentions in these different ways because her family had not had the assistance of any anthropologists to help them work out where their country was, and how, if it all, it overlapped with other claims and the country of other groups.

11. Mrs Bogdanek was cross-examined about where, in geographical terms, she contended her country was. She replied: “From Roxborough right down to Bedourie, from Mangala Waterhole actually right down to Bedourie.” This describes an area of land in predominantly a north–south direction. Although she began her answer by reference to Roxborough (which has been her consistent reference point for her country through Bunny Craigie), in this answer it can be seen she expanded the claim north up to Mangala Waterhole, which is near the junction of Moonah Creek and the Georgina River, close to Carandotta Station.

12. It seems to me, on a review of the evidence, that the genesis of many of Mrs Bogdanek’s contentions about the part of the claim area identified as Wangkayujuru country can be traced to a presentation given to members of the Craigie family, amongst others, in Mount Isa in December 2009. I deal with the contents of that presentation in more detail below, when I discuss the various ways in which Mrs Bogdanek has articulated her contentions.

13. How that presentation came about, and why it did not result in a native title application which included the Craigie family, were not matters the subject of evidence before me, nor would they have been relevant to the issues the Court must determine in this proceeding. The fact of the presentation, and its content, does however go some way to explaining how Mrs Bogdanek came to articulate her arguments in the way she has, and why there is a degree of change in the identity names she has used. It also goes some way to explaining the sense of unfairness she has about the way her family has been treated in relation to their quest to be members of a native title application.

Areas outside the claim boundaries: Lake Nash

1. It is necessary to say something about the Lake Nash area, which recurs as an important area in the evidence. Lake Nash is across the Northern Territory border but in fact only approximately 30 kilometres or so from the north-western boundary of the claim area. Quite a few of the applicant’s witnesses live at Lake Nash. David Riley, the senior Bularnu person who gave evidence, lives at Lake Nash. He described its importance for members of the claim group in this way:

   This Northern Territory/Queensland border has been a real thing for people because in the Northern Territory they’ve been allowed to practice law and all that. And in the Queensland side the government have been really hard on people. So a lot of people, when they wanted to do law business they have to come across the border to Lake Nash. People on the Territory side have been really strong in giving us the opportunity to put young fellas through the law.
   Before any government had that line, that border, people could practice their law anywhere.

1. There seems little doubt on the evidence that many Bularnu people have strong connections with country over the Queensland border, including Lake Nash. This fact assumes some importance in understanding the evidence about continuation of rituals which were previously conducted on country within the claim area, as well as understanding some of the evidence about Bularnu apical ancestors.

THE ACTIVE PARTIES BY THE TIME OF HEARING AND THE COURSE OF THE HEARING

1. The respondents to this proceeding, other than the State and Mrs Bogdanek, include various shire councils, pastoralist and agricultural groups, Mount Isa Mines Ltd and Southern Cross Fertilisers Pty Ltd. These respondents have written to the Court indicating their intention to not participate actively in the proceeding.

2. This has left the applicant, the State and Mrs Bogdanek as the active parties in this proceeding.

3. On 23 November 2012, the State had notified the Court that it would not agree to a draft consent determination provided by the applicant until such time as the dispute with Mrs Bogdanek was finalised. On 21 December 2012, Dowsett J made orders for filing of pleadings. Accordingly, the applicant’s statement of claim was filed on 18 February 2013, and Mrs Bogdanek’s defence (entitled “Respondent’s Statement of Claim”) was filed on 15 March 2013.

4. On 27 March 2013, the State filed its defence. It was then apparent there was little by way of dispute between the State and the applicant. Accordingly, the parties agreed the final hearing should focus on those issues raised by Mrs Bogdanek, but that the matter would proceed to trial on the whole of the application, albeit that substantial parts were not contentious as between the active parties.

5. The issues raised by Mrs Bogdanek concerned only that part of the claim area said to constitute the country in which native title rights are claimed by persons who identify as Wangkayujuru.

6. Mrs Bogdanek has not been legally represented throughout the proceeding, and has conducted her case on her own behalf, with some assistance from Berniece Brandon and Trevina Rogers, whom she also called as witnesses. At times during the proceedings in Mount Isa, counsel for the State also assisted Mrs Bogdanek in dealing with the consequences of objections to evidence, or the need to lead oral evidence from her witnesses. The Court is grateful to the State and its counsel for that assistance.

7. The substantive hearing of the application was heard in two tranches. The first occurred in Mount Isa between 21 October 2013 and 29 October 2013. All the lay evidence was heard and tendered during this hearing.

8. Expert evidence provided by an anthropologist, Dr Kingsley Palmer, has been filed on behalf of the applicant in the form of three expert reports: his original report, dated May 2009; a joint report (co-authored with Mr Michael Southon) dated April 2012; and a supplementary report, filed on 5 August 2013. Dr Palmer was present for the hearing of the lay evidence in Mount Isa during October 2013, and took that evidence into account when giving his evidence at the hearing in Brisbane.

9. It became clear during the hearing in Mount Isa that neither Mrs Bogdanek, nor the State, nor the Court, had access to a number of reports and other sources which were used by Dr Palmer in the formation of those parts of his opinions relevant to Mrs Bogdanek’s arguments. Indeed, it appeared that some of these sources, on their face critical to the issues in this proceeding and objectively important to the contentions that Wangkayujuru are properly seen as part of a society with Bularnu and Waluwarra rather than as part of a society with Wangkamadla and Wangkamanha, had not been made available to Dr Palmer when he prepared his principal report in 2009. More will need to be said about this matter later in these reasons.

10. Those materials consist of a 2002 report by a linguist Dr Gavan Breen about Wangkayujuru language speakers, and two reports by Professor Paul Memmott and Associate Professor Lee Sackett in 2005, about the Wangkamanha people and the Waluwarra people, together with some genealogy work on the Craigie family (of which Mrs Bogdanek is a member), as well as a 2012 report by Dr Kevin Mayo on Wangkamadla/Wangkamanha genealogies. These documents were supplied to Mrs Bogdanek and the State after the hearing in Mount Isa. They were tendered in evidence during the hearing in Brisbane.

11. There was also an opportunity for the Court to inspect some of the areas identified by the applicant’s expert Dr Palmer, in his first report, as sites of significance to the claimant group. This inspection occurred on 30 October 2013, in the company of some members of the claim group, their legal representatives, the State and its legal representatives and Dr Palmer. Mrs Bogdanek was also invited, but informed the Court her personal commitments meant she needed to return to Townsville. This inspection was not by reason of an application by any party, and did not constitute a view for the purposes of s 53 of the Evidence Act1995 (Cth). Rather, its purpose was for the Court to see and identify some of the critical places about which evidence had been given, and to which multiple references had been made on maps which were tendered in evidence by the applicant, a process contemplated by r 34.127 of the Federal Court Rules2011 (Cth), read with r 1.40.

12. On 14 February 2014, Mr James Hill and Mr Travis Harbour applied to be joined as respondents to the proceeding. Their application was based on their view that a further apical ancestor should be identified for the purposes of the application and any determination of native title: namely, a Waluwarra gentleman called Jimmy or Ringa Major. Since the application concerned Waluwarra issues, I took the view it did not involve any interests claimed by Mrs Bogdanek and she did not assert to the contrary. The application was opposed by both the applicant and the State. I dismissed this application on 24 February 2014: Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v Queensland [2014] FCA 140. An application for an extension of time in which to seek leave to appeal from my decision was refused by Rangiah J on 21 May 2014.

13. Expert evidence from Dr Palmer was heard in Brisbane on 24 and 25 February 2014. Dr Palmer prepared and the applicant tendered an addendum to his 2013 report at the hearing in Brisbane. Dr Palmer also gave oral evidence in Brisbane based on the lay evidence he had heard in Mount Isa, by way of supplement to his reports.

1. The Court heard final submissions in Brisbane on 27 and 28 February 2014.

CONTENTIOUS MATTERS TO BE DETERMINED

1. Although this application came close to becoming a consent determination, that is not the path it ultimately followed. Therefore, the Court must be satisfied the applicant have proven the matters they need to prove for the purposes of a determination of native title in their favour under the NTA. Many of those matters have not been contested by any party, including the State and Mrs Bogdanek.

The way Mrs Bogdanek put her claims to group membership, and to country, in her own evidence

1. It seems to me important to try and capture the somewhat varied ways in which Mrs Bogdanek articulated her claims to group membership and to her country, in her own evidence. As counsel for the applicant correctly submitted, Mrs Bogdanek is not a party to this proceeding in any representative capacity. Although she clearly perceives herself to have that capacity as a matter of fact, in terms of the law, she is an individual respondent who articulates either a right to be part of the claim group, or a claim to country which could be seen as negating the native title claim made by the applicant. She cannot through this proceeding obtain a determination of native title herself. In reality, of course, any findings in her favour may have substantial implications for rights over the claim area and potentially outside it.

2. In oral evidence, when asked why she identified as a traditional owner for the country being claimed by the claim group, she stated:

   my history is already around my traditional history, my connections and everything is all around that country, through my grandfather, Peter Craigie and his ancestors.

3. Towards the end of the trial the applicant tendered, without objection from Mrs Bogdanek, an earlier statement she had made while she had some legal representation. The cover note to it indicates it was prepared (in April 2012) for the purposes of review by Mr Southon.

4. In that statement she says:

   I am a Wangkamahdla woman. If I was asked to explain why I say I am a Wangkamahdla woman I would say it is because I grew up knowing that my family are Wangkamahdla from the Roxborough Downs Station area…I was told by my mother and her father’s brother, Joe Craigie. This was back when Aboriginal people were too scared to openly teach lingo and traditional ways because the police or the Aboriginal Protector would threaten to send them away to Palm Island if they did. That did not stop Mum and old Joe Craigie telling me I was Wangkamahdla. I would say I grew up in Dajarra, near Roxborough, visiting places on my country and hearing about those places.

5. She also identifies her grandfather, Peter Craigie, as a Wangkamadla man, stating that he told her he was. She states that her mother told her that her great-grandmother, Bunny, was “a Wangkamadla woman from Roxborough”.

6. In this statement she describes Wangkamadla country as including Roxborough and Sandringham Stations and Boulia. She states that it

   runs south, southeast and south west of the waterways that run into the Mangala waterhole because this is what I learnt as a child through Pop Craigie and Mum. The traditional boundary between Wangkamahdla and the Waluwarra to the north is Waverley Creek, which then runs into Moonah Creek and then turns into the Georgina River at Mangala waterhole.

7. She goes on to say:

   When they [I take that to be reference to Pop Craigie, her mother and other older people] talked about our country they said it went right down to the Mulligan River and Georgina and northerly they talked about Mangala Waterhole being the boundary. I have known that for years.

8. Further on in the same document, she includes Ethabuka, Kalawagari Waterhole near Bedourie and Glenormiston Station amongst others in her list of places she states are Wangkamadla country.

9. By reference to a map she stated formed part of the current application for native title, she also identified Carandotta, Linda Downs, Roxborough Downs and Jimberella Station as places within the claim area which she asserted were Wangkamadla country.

10. Mrs Bogdanek’s own evidence was consistent in identifying the land in the southern part of the claim area, and to the south of the claim area, as the country with which she had connections. She said in her evidence and submissions that Glenormiston Station was important because her ancestors were born there, or connected to that country. As I have noted elsewhere in these reasons, Glenormiston Station occupied a number of locations between about 1882 and well into the 20th century, at times closer to the Northern Territory border, but always with part of the station being located immediately to the south of the claim area, adjacent to Roxborough Downs, as well as occupying land to the south east of Roxborough Downs. Parts of Glenormiston Station at most times appear to be within what Mrs Maher has identified as Wangkayujuru country outside the claim area (that is, down to the border of Pituri Creek).

11. She made it clear that, when she was growing up, her family was not taken up to Waluwarra country: they were taken south. She insisted her interactions, and those of her family, with people from Urandangi were of a different nature and quality to those with people from around Boulia. Of the latter set of interactions, she said in her evidence they were “part of our family related to us”.

12. To give some sense of the geographical spread of these claims, I note that the Mulligan River is south of the Toko Ranges near the Northern Territory border. Bedourie is quite some way further south again. Linda Downs and Carandotta are towards the centre of the claim area, on the Georgina River.

13. In both this statement and her outline of evidence she also admitted that the Craigie family had sought to claim Pitta Pitta group membership, and to be part of the claimant group for the Pitta Pitta native title claim, but were rejected.

14. In oral evidence, Mrs Bogdanek made a number of different, and in some ways contradictory, assertions. In cross-examination she stated:

    I claim as part of the Wangkajutjuru people from around Roxborough to be part of the full Wangkamahdla group.

15. Further on, she stated:

    Well, I categorise myself from – yes, as being from the Roxborough Wangkajutjuru people where my ancestors and their ancestors all come from, well, around Roxborough Station and that area and the Wangkajutjuru area and I believe we are part of the Wangkamahdla claim.

16. She was then asked about the rights and interests she said she possessed by virtue of traditional law and custom, in terms of where her rights extend to by virtue of her being a descendant of Bunny Craigie?

17. Her answer to this was “[a]ll of the Wangkajutjuru country because we’re Roxborough people and that’s Wangkajutjuru country.” Building on this she was asked about whether this included Wangkamanha and replied to the effect that if the anthropologists put Wangkamanha and Wangkamadla under the same umbrella, then yes. One of the themes in Mrs Bogdanek’s evidence at this point, and elsewhere, was that she clearly felt that white anthropologists had categorised people in ways which did not always reflect the way those people categorised themselves and, further, that only those groups who had secured funding for anthropological reports and assistance were in a position to know with any certainty where their country was.

18. She was, however, adamant that her country went at least from Roxborough down to Bedourie, and when questioned about why she referred to her grandfather’s brother, Pop Craigie (the son of Bunny Craigie), telling her that was where his country went. When asked, especially in terms of language whether she would place Wangkamadla in the south of that area (ie nearer Bedourie) and Wangkayujuru in the north of that area (nearer Roxborough), she replied that she would.

19. At another point in cross-examination she gave the following answer:

    I think of myself as from the Roxborough area, the Wangkajutjuru area and coming under the Wangkamahdla umbrella.

20. When pressed about that answer, she expanded on it to accept that she had not always used the word “Wangkajutjuru” because, like a lot of other indigenous people in the area (she asserted) that term was a new one to her, after “the anthropologists” began classifying people in that way. She said she had always known her country was around Roxborough and that is how she grew up knowing where her country was, rather than by the term “Wangkajutjuru”.

21. When asked if she thought of herself as a Wangkamadla person, her answer was:

    that the anthropologist of the day put the people from Roxborough and the Craigie family under the Wangkamahdla umbrella. I don’t know what evidence they had to do that, but that’s what happened.

22. I take this to be a reference to the work of Dr Mayo, now that Mrs Bogdanek has seen his 2012 report where, while conceding there is no “absolute certainty”, Dr Mayo places Bunny Craigie as one of the three Wangkamadla sisters, and links her to stations around Boulia and particularly Roxborough Downs.

23. Not unreasonably in my opinion, Mrs Bogdanek sought to place some considerable reliance on an event entitled “Wangkamanha Information Session”, organised by Queensland South Native Title Services (QSNTS) in Mount Isa on 5 December 2009 This was based primarily on the work of Professor Memmott and Associate Professor Sackett. In the slide presentation given at that information session, the following appeared (adopting the spellings from the document itself):

    Key Question: Is there an identifiable claim area supported by the evidence?
    Answer: Yes, the evidence (historical and ethnographic records) supports a claim over specific areas.
    Issue: Some Wangkamanha country appears to fall within the Pitta Pitta, Warluwarra and Wangkanguru-Yarluyandi claim areas.

24. An extract from the Memmott and Sackett 2005 Wangkamanha report was reproduced, stating:

    Memmott and Sackett 2005
    Based on knowledge of sacred sites and supporting ethnographic literature, Wangkamanha country is described in terms of areas of connection relating to the Wangka Yujuru language group and the Wangkamanha language group [two dialects of the one language 2005:48)].

25. It is apparent that one implication from this quotation is, as Mrs Bogdanek has contended in this proceeding, that the Wangkayujuru language group is connected with the Wangkamanha language group and they share the same country.

26. The presentation then presents the conclusions, reached by that stage to a level which I infer QSNTS felt comfortable presenting to potential claim group members, as to where Wangkayujuru and Wangkamanha country was located.

27. As to the former:

    Memmott and Sackett: the Wangka Yujuru language area
    • South of Mangala waterhole (near junction of Georgina and Moonah Ck) going down the Georgina to its junction with Pituri Ck (Glenormiston) and west to Pituri and Duck Creeks is Wangka Yujuru country.
    • Going east of the Georgina the picture is not precise as to where Wangka Yujuru territory may transit into or Warluwarra country on the north and Pitta Pitta country on the south-east.
    • Preliminary analysis indicates that Split Creek and the creeks to the immediate south including St Ronans, Four Mile, Fifteen Mile, Seventeen Mile, Smoky and Mindyalla Creeks lie in the Wanka Yujuru territory.

28. As to the latter:

    Memmott and Sackett: Wangkamanha language area
    • From and on Pituri Creek, west across the N.T. border and south down the Toko Ranges and the Mulligan to Kalijiwarri waterhole where there is said to be aboundary with Wangkanguru-Yarluyandi.
    • From Glenormiston south to the Mulligan River and around the vicinity of Carlo (and includes a site named Mithaka).
    • Takes in the west side of the Georgina River and the braided channels from Roxborough to Herbert Downs.

29. Broadly, the former area is consistent with the descriptions of Wangkayujuru country given by Mrs Sally Maher in this proceeding. The latter area includes country identified as Wangkamadla country in earlier reports such as that of the Simpson Desert Land Claim Tribunal.

30. The presentation then named the following as “core descent groups” for what it termed (adopting the spellings from the presentation) “Wangkamanha/Wangka Yujuru Traditional Owners”: the Rose Descent Group, the Dimerre and Biilye Descent Groups, the Joe Craigie Descent Group, the Papa Descent Group and the Ida Toby Descent Group. A statement was made to the effect that there “is sufficient evidence to identify some apical ancestors for the Wangkamanha claim”.

31. It is little wonder that, at least from December 2009, Mrs Bogdanek thought that Wangkayujuru and Wangkamanha people and country were connected (and distinct from Waluwarra), that the descendants of Ida Toby and Joe Craigie had shared connections and, perhaps most importantly, that country now said to be within the current claim area was country to which the Craigie family were seen to have connections.

32. It can be seen Mrs Bogdanek’s claims about where her country is, and what group she belongs to, have varied over time. It is also fair to say that representations from those who have studied aboriginal people and their connections to country over this area of south-west Queensland have also expressed a variety of views, including a variety of nomenclatures for different groups and a variety of opinions about the country with which those groups have connections.

33. The breadth of both group membership she has claimed at various times, and the geographical spread of areas to which she has asserted a connection and rights to country, lead me to doubt that she had, as a younger person, a clear idea at all of these matters. I find that her more recent statements are substantially informed by her reading of various materials in other claims, her discussion with anthropologists and family historians, and her determined searching of archival material, in attempts to piece together her family connections. That development of the details of her identity may be something she has in common with many other aboriginal people, including some members of the claimant group.

34. Notwithstanding that finding, Mrs Bogdanek has some justification for giving answers that varied depending on the question, and she has some justification for feeling — as it is clear she does — that she is being held to a higher or different standard in how she must identify herself than the applicant’s witnesses. There is no doubt the evidence reveals people in the claim area have identified in a number of different ways, and sometimes in respect of the same person the identification has changed over time. It is a fair inference that some of the changes may have been due to what people had learned from anthropologists, or chosen as a consequence of information from anthropologists. Or, at the very least, the strengthening of identity which comes with a process of a claim of native title, where people are asked as part of that process to identify their country, and their connection to that country in more forensic and perhaps particular ways than they have ever had to do in their general lives.

35. It is also quite reasonable, in my opinion, for Mrs Bogdanek to have placed some reliance on information she has been given, for example, in the presentation by QSNTS in December 2009, and for her to have used that information as a basis for trying to understand whether there is some objective basis for the Craigie family’s claims to rights and interests in country in the area now subject to this claim. Her sense of frustration and disappointment in the way characterisations have shifted so as to exclude her family to this point in the native title application process is entirely understandable, in my opinion.

36. Taking all those matters into consideration, in my opinion the better and fairer approach to Mrs Bogdanek’s evidence and her claims is to reduce them to their essentials which have remained consistent throughout all her accounts of her understanding of her identity:

First, she is a descendant of Bunny Craigie;

Second, she has always understood and been told that Bunny’s country was around Roxborough.

1. It is from these basic propositions that Mrs Bogdanek, for example, reasons that if Roxborough is now classified as Wangkayujuru country, that means Bunny and her descendants must be Wangkayujuru. Her way of identifying the group she understood Bunny to be part of (and therefore her family through Peter Craigie to be part of) was first to use the label “Wangkamanha”, which may be a result of the Memmott and Sackett research. Subsequently, she has used the label “Wangkamadla”, which now appears to draw some support from the work of Dr Mayo, read with the Simpson Desert Land Claim Tribunal report.

2. Once the country she considered Wangkamanha or Wangkamadla was identified by various anthropologists, and people such as the applicant’s witnesses, as Wangkayujuru country, she began to adopt that description. For a layperson, that is not an irrational approach, although the uncertainty it reveals distinguishes her manner of self-identification from that of most of the applicant’s witnesses.

3. Her assertions and evidence, that she had always understood that her great-grandmother’s country went south from Roxborough as far as Bedourie, is not totally inconsistent with the “Wangkayujuru” hypothesis, in the sense that even Mrs Maher’s clear evidence is that Wangkayujuru country extends well south of the claim area, although not as far as Bedourie. Her assertions and evidence also bear considerable consistency with the anthropological material in existence outside Dr Palmer’s report. Dr Palmer’s opinions on these matters were not fully formed, in large part because he was not instructed to consider them in a primary investigative sense, as he made clear in his reports.

4. It is necessary to say in this section something about the obvious disconformities between the evidence of the applicant’s witnesses and that of Mrs Bogdanek’s witnesses in terms of their perspectives about where the Craigie family sat in community life within the claim area, and in areas inextricably linked to it, like Dajarra.

5. Much of the evidence I have referred to in these reasons discloses a sense of separation between the Craigie family and the families of the applicant’s witnesses. There may be a host of reasons for that sense, which have not been revealed in the evidence. What is striking and to my mind relevant for the issues to be determined in this proceeding is the fact of that separation, and the fact that both sides felt it. There is an internal tension in Mrs Bogdanek’s claims to have rights to the country in the claim area when her family have, for several generations, seen themselves — and been seen by others — as outsiders.

6. I give an example from the evidence of Sally Maher. I have chosen this example because Joe Rose is a man about whom Mrs Bogdanek made many arguments, including that he should be seen as a man with rights to the country in the claim area, and in that way, a man whose family had been excluded, just as the Craigies had. Mrs Maher here recounts what occurred at the time Joe Rose died.

   I remember when Joe Rose died. They brought him up to where we were at West End because he was very ill and feeble. Billy Newman, with Pee Wee and her daughter Topsy (the youngest) brought old Joe into our camp. He died overnight. The men had to arrange his funeral. The policeman Des Fox who was based at Dajarra and other men from our camp at West End including Billy Jenkin, Tony Costello and old Tom de Satge were part of it. Tony Costello dug the grave at the cemetery in Dajarra all day from morning till sundown. They had Joe Rose's body in a coffin at the junction in the shade. The burial was held the day after he died in Dajarra.
   No Craigies helped dig the grave or came to his funeral. Pop Craigie was there in Dajarra at the time but he never left his camp to mix with the blackfellas down at the West End camp. Women and kids weren’t allowed to go to the actual burial. We stayed with Pee Wee and Topsy at West End. Pee Wee ripped all her clothes off and she was crying for that old man she lost. She started during the night as he died. Dot Webster (nee Major), my sister Jean (“Peaky”) and Lena Dempsey (nee Bismark) grabbed a dress for her and wrapped her up in a blanket.

1. I deal with Joe Rose first, and then with Belia and Deemera.

2. There is insufficient evidence for me to find that Joe Rose was a brother to Belia and Deemera. Such evidence as there is describes Belia and Deemera as brothers, and I am prepared to accept that evidence. For example, Mrs Maher, who grew up very close to these two men, gives that evidence very clearly. In relation to Joe Rose’s affiliations with country, in response to questions from Mrs Bogdanek, she replied very firmly “I don’t care where [he was] born, [he’s] still Arrernte people”. What I place weight on from this evidence is not that Joe Rose should definitively be found to be an Arrernte man, but rather that, from the perspective of a senior Wangkayujuru woman, he had no rights to the country within the claim area, no matter where he was born.

3. Mrs Bogdanek’s contention is that Joe Rose was the son of Polly, who was the sister of Bunny Craigie. In that sense, Mrs Bogdanek contends, the descendants of Joe Rose have as much right to country around Roxborough, or to Wangkayujuru country, as she does. Ms Kathy Frankland, from the Queensland Department of Community and Personal Histories (an historical researcher whose information both parties and Dr Palmer have relied upon) informed Mrs Bogdanek by letter that Joe Rose’s mother was not known. Some of the applicant’s witnesses (such as Joseph Dempsey) placed the Rose family around Glenormiston Station and then back towards the Northern Territory and the Toko Ranges, which are on the border between Queensland and the Northern Territory, southwest of the claim area.

4. This identification of Joe Rose’s country is consistent with the tentative views formed by Dr Palmer and Mr Southon in the joint report where, after noting the variety of accounts they received from different informants about Joe Rose’s parentage and his country, they concluded that his country is likely to be what is referred to in the Simpson Desert Land Claim Tribunal report as Ilarte, which is well to the south of the current claim area. I note Mr Southon does not exclude the possibility that Joe Rose had Wangkamadla interests, although Mr Southon emphasised more research would be needed to reach a firm conclusion on this.

5. Accordingly, even if I were satisfied that Mrs Bogdanek was able, in this proceeding, to contend for the inclusion of people other than her own descent line as members of the claimant group (and I make no positive finding to that effect), I make two findings. First, there is insufficient evidence before me to establish that Joe Rose was a brother to Belia and Deemera. Second, such evidence as there is suggests Joe Rose’s country is outside, and to the south, of the claim area.

6. Belia and Deemera (and possibly Joe Rose) have been identified as “rainmakers” who performed ceremonies along the Georgina River, including in areas covered by this claim. Mrs Bogdanek contends they should be considered as men who had rights to this country, and therefore their descendants should be included in this claim. The applicant accepts they had some important ritual roles over some of the country covered by this claim, especially around the Georgina River, but, relying on the distinctions between rights to country and invitational rights I have discussed at [405], submit that they should not be seen as men who had, by traditional law and custom, rights to the country in the claim area.

7. Applying the same reservation to whether Mrs Bogdanek can, in any event, raise the inclusion of these men as members of the claimant group when she is not descended from them, I would in any event accept the applicant’s submission on the substantive issue, so that even if Mrs Bogdanek was entitled to make this contention I find on the evidence it cannot be sustained.

8. Some of the evidence upon which I have relied for this finding includes evidence about the following issues: where these men identified their country to be; what roles the evidence showed they performed within the claim area, and why non-aboriginal recognition of Belia Toby is not relevant.

9. Mr Colin Saltmere gave evidence that, when he was a jackaroo in the 1970s around Dajarra, he

   knew Johnny Belia then (Eileen Belia’s husband and Belia Toby’s son). He was telling me his country was down around Tobermorey - he was telling me properly. It was the country for his father Belia Toby and his father’s brother Charlie Demera. Those two old brothers moved up to Urandangi and got mixed up with the people there. Belia Toby was made a ‘King’ but he was not from there.

10. He went on to say:

    For Ida Toby’s two husbands [I find this to be a reference to Belia and Deemera] , those old fellas were involved in men’s law and could teach it. They could hold it for those people whose country it was - even if it was not their country. There were old fellas there whose country it was - Old Walgra George and Fred Age. But having extra law men there was good. lt kind of gives you the right ‘cast’ for doing law business. It gives you enough people to do the ceremony business - the singing and dancing and teaching the young men.
    I have learnt from our old men that Belia Toby was the boss for Tobermorey. His business went on there.

11. Stuart Rusty characterised Belia’s role on the claim area in this way:

    Belia Toby was from Tobermorey and he was a rainmaker. He was given a breast plate by the white fellas. That breast plate didn’t make him boss of the River instead of those old Law Men I describe above. He could help out with dancing and ceremony business.

12. I have also relied on Sally Maher’s evidence about Belia and Deemera. Her evidence is important and in my opinion reliable because she grew up with her grandmother Ida Toby, and therefore also spent a lot of time in the company of these two men as a child, often travelling all around the Georgina River in Ida Toby’s buggy. Mrs Maher described the two men generally in the following way:

    Belia Toby and his brother Charlie Demera were always together. Wherever Demera went, Belia would follow him. Demera had a riding horse and a pack horse and old Belia had a buggy drawn by 3 horses. Belia Toby was a dingo scalper and he helped rear us up. They had kangaroo dogs, Nipper, Wombra and Lootja. Never had to fire a shot to catch a kangaroo - those dogs would bring them down.

13. She described how Belia was a “nice old man who never drank or smoked” and said that people liked him, and she speculated that perhaps that was why he was given the king plate. In contrast, she described Deemera as a “grumpy old thing” and that as children she and her brother and sisters could not go to his camp. She had a clear recollection, which I accept as accurate, that both brothers identified themselves as Arrernte men. Deemera told her he was born at Tobermorey. She recalled Belia’s description of his country in the following way:

    He would say ‘I was born at Glenormiston Station’. He means the old Glenormiston station right next to the Queensland/Northern Territory border. When he said this we would ask where his country was. He had a name in his own language for his country sort of meaning ‘sundown’ side because it was west of the country we lived on. He was a big rainmaker and lived with us but he knew he was not living on his country.

14. The Court had in evidence maps showing the cattle stations in the area as at 1882 and 1895. These were produced by Mr Harris, the cartographer who constructed the maps tendered on behalf of the applicant in the proceeding, and to which there was no challenge. The historical locations of the stations are important in understanding the evidence of many of the witnesses, and particularly important in relation to the evidence from Mrs Maher about Belia and Deemera, to which I have just referred.

15. Mr Harris deposed that in the course of his research he sourced two 19th century maps of pastoral holdings in the claim area. The maps he discovered were entitled “Sketch Map of the Gregory North District Queensland 1882” and “Outline Map of the Gregory North District Illustrating the Pastoral Holdings 1895”. Using Geographic System Software, he then geo-referenced these historical maps, thus fixing them to its location on the earth’s surface, and superimposed the external boundary from the native title application map over the top of the 1882 and 1895 maps. The external boundary coordinates were sourced from the National Native Title Tribunal’s map as used in the amended application .

16. These maps clearly show Glenormiston Station in a variety of locations, to the south of the claim area, to the south-east and to the south-west of the claim area, adjacent to the border with the Northern Territory.

17. In my opinion, there is sufficient evidence to find that, although Belia and Deemera lived much of their lives within the claim area, although Belia was a partner to Ida Toby and had children with her, and although Deemera may also have had a relationship with Ida Toby, neither the men themselves nor Bularnu, Waluwarra and Wangkayujuru people regarded them as having rights to the country in the claim area. There is no evidence of descent-based rights in any event. More importantly, the available evidence suggests, and I find, that Belia and Deemera’s country, on their own account, was to the south and to the west of the claim area. I find they identified as Arrernte men.

TWO FINAL MATTERS

How Mrs Bogdanek’s contentions have been treated over the years

1. Contrary to Mrs Bogdanek’s contentions, there have been many steps taken over many years to address the claims she and her family have made about who holds rights in the country in the southern part of this claim.

2. The evidence demonstrates that members of the Craigie family have taken opportunities to provide information to anthropologists since Joe (Pop) Craigie interacted with Dr Breen in the early 1970s. Lenny and Henry Craigie, each of whom were sons of Joe (Pop) Craigie, both gave evidence to the Simpson Desert Land Claim Tribunal, and the Tribunal’s report makes reference to their evidence.

3. The Memmott and Sackett Wangkamanha report cites Mrs Bogdanek, along with Lenny and Henry Craigie, as their principal informants for the Craigie family.

4. Further, during cross-examination, Mrs Bogdanek conceded that, when she first sought to be joined as a respondent to this proceeding, she signed an agreement about further research to be undertaken by Dr Palmer and Mr Southon which, I infer, resulted in their 2012 joint report. Mrs Bogdanek accepted that she had provided to Dr Palmer and Mr Southon all the information she could, that was available to her at the time, in the course of that research being undertaken, and that she also, at that time, had the benefit of legal representation.

5. Although I accept Mrs Bogdanek feels a genuine sense of unfairness about the way her family has been treated, and about the fact that until this point they have not been successful in becoming recognised members of any native title application in relation to the areas where they grew up and where they understood they belonged, it is the case that Mrs Bogdanek has had a series of opportunities to put her contentions, and her material, to qualified experts in order to try and secure a positive outcome. That no such outcome has been forthcoming is no doubt difficult for her to accept, but I find that the lack of success to this point is not, in fact, for want of access to anthropological research and assessment.

Contentions made by Mrs Bogdanek which are not addressed in these reasons

1. Mrs Bogdanek has made an admirable, determined and, insofar as her resources permitted, detailed effort to amass the material she wished the Court to consider in determining her contentions. She has presented that material, and her contentions based on it, in a careful manner.

2. The applicant and the State took a patient and fair approach in allowing Mrs Bogdanek to put her contentions and the material she wished to rely on, without unnecessary objections as to relevance. Inevitably however, in a proceeding of this complexity at both factual and legal levels, a person without legal training will struggle at times to appreciate what material is legally relevant and what is not.

3. There were a number of contentions put by Mrs Bogdanek which I do not consider to have been relevant to the matters the Court must determine in this proceeding. Accordingly, I have not dealt with them in these reasons, nor with the evidence upon which she relied to make them.

4. The first is her contention about Tommy Ferguson. There is nothing more than an occasional reference in the applicant’s evidence and the anthropological evidence to Mr Ferguson. Mrs Bogdanek is not descended from him. The applicants do not rely on him. There is no basis for his position to be considered further.

5. The second matter is Mrs Bogdanek’s contention about Belia being “chosen as King of Wangkajutjuru country”, as she puts it in her final submissions. A copy of a letter from the Protector of Aboriginals in Cloncurry to the Director of Native Affairs in Brisbane was tendered by Mrs Bogdanek and quite a lot of time was spent by her in questioning various witnesses about this letter and the “king plate”. I have referred to this matter briefly in my findings about Belia set out above. Any purported recognition by Europeans of Belia in 1948 as “King of Carandotta” by giving him a breastplate does not, and should not, in my opinion carry any weight in the context of the NTA. The motives within the Office of the Protector of Aborigines at that time for such an act are entirely unknown and may have had nothing to do with recognition of rights to country in accordance with traditional law and custom. The identity of the “natives on the Georgina river” to whom the Protector refers is unknown so that, even if contrary to my opinion such a source should be examined, the evidence is insufficiently probative to be given any further consideration.

6. The third issue is what Mrs Bogdanek sought to make of the reference in a birth certificate to a woman usually known as “Ivy Major” as “Ivy Craigie”. I rely for the following findings principally on the evidence of Roy Belia, who is the grandson of Belia Toby and the son of Johnny Belia. The woman usually called Ivy Major (or Ivy Belia, before she married) in the evidence in this proceeding was the biological daughter of Belia Toby. She had a brother, Johnny Belia who was also the biological son of Belia Toby. Ivy and Johnny’s biological mother died giving birth to Johnny. Belia Toby took Ivy and Johnny to live with him, his brother Deemera and Ida Toby. The two children were brought up by Ida Toby. They are another example of an adoptive relationship in accordance with traditional law and custom. Henry Page, Betty Parker and Sally Maher all confirmed in their evidence that Ivy Major (Belia) was the daughter of Belia Toby and that Ida Toby raised her and her brother Johnny after their mother died. Under questioning from Mrs Bogdanek, both Mrs Maher and Stuart Major stated that they believed the use of the surname “Craigie” on the birth certificate for Keith Major (the son of Ivy Major) was a mistake.

7. There is certainly no rational explanation to be found in the rest of the evidence as to why Ivy Major (Belia) would have had the surname “Craigie” put on her son’s birth certificate. Mrs Bogdanek used the birth certificate to assist her contention that the Craigie family were “all one mob” with the Toby family. In circumstances where rights to country flow through descent (biological or adoptive), even if there were some association with the Craigie family to be established, it could not assist Mrs Bogdanek since she is not descended from Ivy Major. Further, the evidence is sufficient in my opinion to establish on the balance of probabilities that Ivy Major was the adoptive daughter of Ida Toby, and the biological daughter of Belia Toby, so that there is no apparent relationship at all with the Craigie family.

8. Fourth, Mrs Bogdanek spent some time in her evidence and in her submissions describing various meetings which have occurred over the last decade or more in relation to this native title application, and other potential applications in the area. Sometime she sought to challenge evidence given about these meetings by the applicant’s witnesses. Sometimes she sought to explain why she, or members of the Craigie family, did not or could not attend. At other times she sought to use the fact of these meetings as evidence of what she saw as the unfairness in the way the Craigie family had been treated. The evidence about these meetings is not relevant to the matters the Court must determine on this application, save for what I have said at [357] above about the importance of the meeting at Urandangi in 2003 in demonstrating first, who amongst the claimant group was recognised as speaking for parts of the country within the claim area and, second, the agreement reached with the Indjalandji-Dhidhanu people.

9. Fifth, Mrs Bogdanek spent quite some time at Mt Isa tendering and leading evidence about a board produced by Joseph “Gubby” Rogers concerning his identification as a Waluwarra person. The applicant in turn spent quite some time cross-examining Mrs Bogdanek and Mr Rogers about these events. It appeared the applicants were seeking to establish some kind of concoction by Mr Rogers of the board, which had a document bearing the signatures of various of the applicant’s witness, including Marlene Speechley and Sally Maher. As I set out at [274] above, the entire process by which Mr Rogers was for some time informally and to some extent formally identified as a Waluwarra person when he clearly is not was most unfortunate in several respects. The sequence of events, while not reflecting well on any participant, is not relevant to the matters the Court must determine on this application.

10. Sixth, there was much discussion during the hearing about the historical location of Glenormiston Station, particularly during the late 19th century. As I have explained above, there were two historical maps in evidence, dated 1882 and 1895, showing the locations of the pastoral landholdings as at those dates. The 1882 map shows Glenormiston Station to be located directly to the south of the claim area, south of Roxborough. The 1895 map shows Glenormiston Station with holdings both to the south-west of the claim area, adjacent to the Northern Territory border, and to the south-east of the claim area, east of Roxborough.

11. Mrs Bogdanek submits that the location of Glenormiston Station is relevant to the proceeding, as some of the ancestors relied upon by the claim group are said to have been born there. Given the findings I have made above that rights to country are passed down by descent, or adoption, the precise location of Glenormiston Station at the time of first sustained contact is of limited relevance in this proceeding, and I make no specific findings about it. It appears that Glenormiston Station was never located within the claim area. Any person born on, or having rights to possess country on which Glenormiston Station was established is not, by reason of that fact alone, entitled to rights to country within the claim area. It is true that the historical locations of Glenormiston Station are within what Sally Maher describes as Wangkayujuru country, outside of the claim area. What these matters may lead to is the proposition advanced tentatively by Dr Palmer: namely that there are people who identify as Wangkayujuru who may be able to assert rights to country located to the south of the claim area. That is not a matter for the Court in this proceeding.

PART 5

THE ORDERS TO BE MADE

1. In Ward 213 CLR 1; [2002] HCA 28 at [51]-[52], the High Court emphasised the importance in the text of a native title determination of ensuring that the nature and extent of the native title right is reflected in the language of the determination, where the extent of the right does not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters. The determination should express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.

1. I am satisfied that the determination proposed in the application is in accordance with those principles. However, in the State’s written submissions there was a reference to the need for some minor amendments to be made to the form of determination attached to the statement of claim. For that reason, and so the parties have an opportunity generally to consider the final form of the determination in conjunction with these reasons, I propose to make orders reflecting the conclusions I have reached and direct the parties to file an agreed form of final determination. It is not my expectation that Mrs Bogdanek must participate in this process but as she is a respondent, she is entitled to do so.

SUPPRESSION AND NON-PUBLICATION ORDERS

1. In December 2013, after I gave a direction that identified source material on which Dr Palmer had relied was to be provided to Mrs Bogdanek for the purposes of her preparing to cross-examine Dr Palmer, and for the purposes of her making submissions in this proceeding, an application was made by QSNTS, separately from those lawyers from QSNTS who were acting on behalf of the applicant, for orders imposing restrictions on access to and publication of those documents. Neither Mrs Bogdanek nor the State opposed the making of the orders, and after hearing submissions from Mr Wishart on behalf of QSNTS I made the orders as sought.

2. In February 2014, during the hearing in Brisbane, there was an application to extend the orders to the two versions of the connection report prepared by Mr Southon and used as a basis for his joint report with Dr Palmer. The orders were extended to include those documents. The orders are expressed to continue until further order, although paragraph 4 of those orders contemplates that all documents covered by the orders will be returned to QSNTS at the conclusion of the proceeding.

3. It seems to me that it will be appropriate for the Court to reconsider whether those orders should continue, and in what form. The terms of Div 2 of Part VAA of the Federal Court of Australia Act 1976 (Cth) must be considered, and in particular the emphasis in those provisions on the principle of open justice and on such orders being limited in duration to the period reasonably necessary to achieve the purpose for which the order was made: see ss 37AE, 37AJ. It is also appropriate for the terms of paragraph 4 of the orders to be revisited now that the Court is in a position to make final orders.

4. I propose to give the parties an opportunity to file and serve proposed orders in relation to those documents, together with any submissions they wish to make, limited to five pages. I will then deal with the making of these orders on the papers.

I certify that the preceding nine hundred and seven (907) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Associate:

Dated:       23 May 2014