Griffiths v Northern Territory
[2006] FCA 903
•17 JULY 2006
FEDERAL COURT OF AUSTRALIA
Griffiths v Northern Territory of Australia [2006] FCA 903
SUMMARY
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA
NTD6016 OF 1999
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU AND NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA
NTD6008 OF 2000
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA and AMATEUR FISHERMEN’S ASSOCIATION OF NORTHERN TERRITORY
NTD6012 OF 2000
WEINBERG J
17 JULY 2006
MELBOURNE (HEARD IN DARWIN)
In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of these proceedings and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at < together with this summary.
These proceedings involve three separate, but related, applications for determination of native title under the Native Title Act 1993 (Cth) (“the NT Act”). The area claimed is the town of Timber Creek, located approximately midway between Kununurra and Katherine, in the Northern Territory. Each application is brought on behalf of the Ngaliwurru and Nungali Peoples.
The hearing took place on site at Timber Creek, and also at the Supreme Court in Darwin. The evidence was extensive and the documentary evidence in particular was voluminous. The main issues for determination were, first, whether the claimants, according to the traditional laws acknowledged, and the traditional customs observed, have a connection with the claim area that gives rise to native title rights and interests recognised by the common law of Australia, and second, whether any extinguishment of such native title rights and interests is to be disregarded by reason of the operation of s 47B of the NT Act.
In these proceedings, both of those issues were contested by the Northern Territory and the Amateur Fishermen’s Association of the Northern Territory (“AFANT”).
In relation to the first issue, s 223(1) of the NT Act required the Ngaliwurru and Nungali Peoples to show:
·that they are a society united in, and by, their acknowledgement and observance of a body of accepted laws and customs;
·that the present body of accepted laws and customs is, in substance, the same body of accepted laws and customs as was acknowledged and observed by the ancestors of the Ngaliwurru and Nungali Peoples, adapted to modern circumstances; and
·that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty in 1825, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs.
I have concluded that, at sovereignty, there was a society of indigenous persons who had rights and interests possessed under traditional laws and customs, giving them a connection to the land and waters of the claim area. I have also concluded that that society continued to exist throughout the 20th century, and that it continued to enjoy rights and interests under the same and substantially similar traditional laws and customs as those that existed at sovereignty. I have found that the society was the Ngaliwurru and Nungali Peoples, and not some other indigenous group.
I have rejected the contention by the Northern Territory and AFANT that the Ngaliwurru and Nungali Peoples no longer acknowledge and observe the same traditional laws and customs as did their ancestors because of a shift from what are termed “principles of patrilineal descent” to “principles of cognatic descent”. I have concluded that this shift represents a change of emphasis, but does not give rise to a new normative system, such as would deny the claimants their native title rights.
I have also rejected the contention by the Northern Territory and AFANT that any native title rights and interests that may otherwise have existed have been extinguished by pastoral leases, all of which expired long ago. I have concluded that s 47B of the NT Act requires such acts of extinguishment to be disregarded, save in relation to five lots which the claimants themselves accept involve land that has been subject to extinguishment. The extent of that extinguishment remains to be determined.
Ultimately, the Ngaliwurru and Nungali Peoples have largely succeeded in their claim to native title. It should be noted, however, that the determination of native title that they sought encompassed exclusive rights to possession, occupation, use and enjoyment. I have rejected their claim in that wider form, but have concluded instead that they have established narrower, non-exclusive native title rights to use and enjoy the land and waters of the claim area. This finding of non-exclusivity means that members of AFANT, and anyone else who wishes to fish in the waters of Timber Creek, whether tidal or not, may continue freely to do so.
It will be necessary to consider further the final form of any determination of native title that will be made in consequence of my findings. That determination will be made at a later date, after the parties have had an opportunity to consider these reasons for judgment, and make further submissions.
FEDERAL COURT OF AUSTRALIA
Griffiths v Northern Territory of Australia [2009] FCA 903
NATIVE TITLE – application for determination of native title in and around town of Timber Creek by the Ngaliwurru and Nungali Peoples – society of Ngaliwurru and Nungali Peoples existed at sovereignty in 1825 – whether same society continues to exist – whether shift from patrilineal system of descent to cognatic system of descent constitutes fundamental change of normative system – whether current society of Ngaliwurru and Nungali Peoples continues to enjoy native title rights and interests under traditional laws and customs – whether traditional system of laws and customs has continued essentially uninterrupted since sovereignty
NATIVE TITLE – nature and extent of native title rights and interests – whether native title rights exclusive or non-exclusive
NATIVE TITLE – extinguishment – consideration of s 47B of Native Title Act 1993 (Cth) – consideration of occupation sufficient to satisfy requirements of section – whether s 47B can apply within a proclaimed township having regard to proclamation
NATIVE TITLE – native title rights over tidal and non-tidal waters
Held: the Ngaliwurru and Nungali Peoples have established the existence of non-exclusive
native title rights over the land and waters of Timber Creek
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 3(1)
Native Title Act 1993 (Cth) ss 23B, 47B, 56, 61, 86, 211(3)(d), 223, 225, 253Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399 referred to
Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 cited
Attorney-General (NSW) v Homebush Flour Mills Ltd (1937) 56 CLR 390 cited
Attorney-General (NT) v Ward (2003) 134 FCR 16 discussed
Attorney-General of British Columbia v Attorney-General of Canada [1914] AC 153 referred to
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 cited
Billy (on behalf of the Poruma People) v Queensland (2005) 223 ALR 447 referred to
Commonwealth v Yarmirr (2001) 208 CLR 1 discussed
Daniel v State of Western Australia [2003] FCA 666 discussed
Daniel v State of Western Australia (No 2) [2003] FCA 1425 cited
De Rose v South Australia (2003) 133 FCR 325 discussed
De Rose v South Australia (No 2) (2005) 145 FCR 290 discussed
Fejo v Northern Territory (1998) 195 CLR 96 cited
Gawirrin Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 discussed
Griffiths v Northern Territory of Australia [2003] FCA 1177 referred to
Gumana v Northern Territory (2005) 141 FCR 457 discussed
Harper v Minister for Sea Fisheries (1989) 168 CLR 314 cited
Hayes v Northern Territory (1999) 97 FCR 32 discussed
Jango v Northern Territory of Australia [2006] FCA 318 discussed
Kenyon v Northern Territoryof Australia [2003] FCA 1178 referred to
Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 referred to
Mabo v Queensland (No 2) (1992) 175 CLR 1 discussed
Mason v Tritton (1994) 34 NSWLR 572 cited
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 discussed
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 cited
Neowarra v State of Western Australia [2003] FCA 1402 cited
New South Wales v Commonwealth (1975) 135 CLR 337 cited
Northern Land Council v Aboriginal Land Commissioner (1992) 105 ALR 539 referred to
Northern Territory v Alyawarr (2005) 145 FCR 135
Risk v Northern Territory of Australia [2006] FCA 404 cited
Rubibi Community v State of Western Australia (No 6) [2006] FCA 82 referred to
Rubibi Community v Western Australia (No 4) (2004) 138 FCR 536 referred to
Strickland v Native Title Registrar (1999) 168 ALR 242 referred to
The Lardil Peoples v State of Queensland [2004] FCA 298 referred to
The Wik Peoples v Queensland (1996) 187 CLR 1 discussed
Wandarang People v Northern Territory (2000) 104 FCR 380 referred to
Ward v Western Australia (1998) 159 ALR 483 referred to
Western Australia v Ward (2000) 99 FCR 316 discussed
Western Australia v Ward (2002) 213 CLR 1 appliedALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA
NTD6016 OF 1999
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU AND NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA
NTD6008 OF 2000
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA and AMATEUR FISHERMEN’S ASSOCIATION OF NORTHERN TERRITORY
NTD6012 OF 2000
WEINBERG J
17 JULY 2006
MELBOURNE (HEARD IN DARWIN)INDEX
Para nos:
INTRODUCTION [1]
THE PROCEEDINGS BEFORE THIS COURT [7]
THE CLAIMANTS’ CASE AS FINALLY PLEADED [15]
HISTORY OF THE CLAIM AREA [31]
THE ABORIGINAL LAND COMMISSIONERS [70]
The Timber Creek Land Claim Report No 21
(19 April 1985) [76]
Kidman Springs/Jasper Gorge Land Claim Report
No 30 (31 March 1989) [95]
Stokes Range Land Claim Report No 36 (28 June 1990) [102]
Ngaliwurru/Nungali (Fitzroy Pastoral Lease)
Land Claim No 137 and Victoria River (Bed and Banks)
Land Claim No 140 Report No 47 (22 December 1993) [111]THE KEY REQUIREMENTS FOR ESTABLISHING NATIVE TITLE [124]
SECTION 47B [147]
THE CLAIMANTS’ EVIDENCE – GENERAL OVERVIEW [150]
THE EVIDENCE GIVEN ON SITE AT TIMBER CREEK [153]
Alan Griffiths [155]
Evidence of Links to Makalamayi [188]
Traditional Laws and Customs [229]
Language [247]THE CLAIMANTS’ ANTHROPOLOGICAL EVIDENCE [257]
Background to the Report [266]
Review of Anthropological Research [270]
The Claimant Community [294]
Taking Country [316]
Countries and Members of the Country Groups [324]
Rights and Duties of Members of Country Groups [361]
Continuity of Connection to Country [371]THE NORTHERN TERRITORY’S ANTHROPOLOGICAL
EVIDENCE [380]Professor Sansom’s Qualifications [381]
Introduction to the Report [385]
Shifts in Customary or Traditional Practice [392]
Oral Tradition [398]
A Diachronic Analysis [399]
The Myth of Eternal Recurrence [403]
Land Claim Proceedings [404]
The Shift to Cognation [406]
Professor Stanner [410]
The Reasons for the Shift to Cognation [420]
Aboriginal Genealogy and Related Matters [428]
Professor Sansom’s Conclusions [437]DR PALMER’S REBUTTAL [439]
AFANT’S EVIDENCE [457]
SECRET MEN’S BUSINESS – RESTRICTED [459]
FINDINGS OF FACT [468]
NATIVE TITLE – GENERAL PRINCIPLES[502]
BACKGROUND TO THE NT ACT [519]
THE NATURE OF NATIVE TITLE [548]
THE CLAIMANTS [556]
THE REQUIREMENT OF CONNECTION [561]
ARE THE ELEMENTS OF S 223(1) MET? [564]
THE CLAIMANTS’ NATIVE TITLE RIGHTS AND INTERESTS [586]
EXTINGUISHMENT BY PASTORAL LEASE [621]
EXISTENCE OF NATIVE TITLE RIGHTS AND INTERESTS [636]
CAN S 47B BE INVOKED TO OVERCOME EXTINGUISHMENT? [656]
Cases dealing with s 47B [662]
Submissions and Conclusions in relation to s 47B [677]NATURE AND EXTENT OF NATIVE TITLE RIGHTS
AND INTERESTS [707]THE SPECIAL POSITION OF THE WATERS OF TIMBER CREEK [721]
FINDINGS REGARDING WATERS OF TIMBER CREEK [772]
SUMMARY OF FINDINGS [782]
Schedule A1: Map of the General Area Surrounding Timber Creek
Schedule A2: Map of Timber Creek
Schedule B: Map of Timber Creek Showing Lots Claimed
Schedule C: Outline of Site Visits
Schedule D: Sketch Genealogy of Relationship Between Country Groups
Makalamayi, Yanturi and Wantawul
Schedule E: Sketch Genealogy of Relationship Between Country Groups Makalamayi,
Wunjayu, Yanturi and Wantawul
Schedule F: Partial Summary of Genealogy Relating to Makalamayi
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD6016 OF 1999
BETWEEN:
ALAN GRIFFITHS and WILLIAM GULWIN
on behalf of the NGALIWURRU and NUNGALI PEOPLES
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
RESPONDENTNTD6008 OF 2000
BETWEEN:
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
RESPONDENTNTD6012 OF 2000
BETWEEN:
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENTAMATEUR FISHERMEN’S ASSOCIATION OF NORTHERN TERRITORY
THIRD RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
17 JULY 2006
WHERE MADE:
MELBOURNE (HEARD IN DARWIN)
THE COURT ORDERS THAT:
1.On a date to be fixed, the parties file and serve contentions regarding:
(a) the form that any determination of native title in these proceedings should take, in order to give effect to these reasons for judgment; and
(b) any consequential orders.
2.The matter be listed for further hearing on a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD6016 OF 1999
BETWEEN:
ALAN GRIFFITHS and WILLIAM GULWIN
on behalf of the NGALIWURRU and NUNGALI PEOPLES
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
RESPONDENTNTD6008 OF 2000
BETWEEN:
ALAN GRIFFITHS and WILLIAM GULWIN
on behalf of the NGALIWURRU and NUNGALI PEOPLES
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
RESPONDENTNTD6012 OF 2000
BETWEEN:
ALAN GRIFFITHS and WILLIAM GULWIN
on behalf of the NGALIWURRU and NUNGALI PEOPLES
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENTAMATEUR FISHERMEN’S ASSOCIATION OF NORTHERN TERRITORY
THIRD RESPONDENTJUDGE:
WEINBERG J
DATE:
17 JULY 2006
PLACE:
MELBOURNE (HEARD IN DARWIN)
REASONS FOR JUDGMENT
introduction
Timber Creek, a small township in the north-western corner of the Northern Territory, lies on the Victoria Highway, a major road route across Australia. It is located approximately half way between Katherine and Kununurra. The Ngaliwurru and Nungali Peoples, represented in these proceedings by Alan Griffiths and William Gulwin, have lodged an application for a native title determination in respect of certain land and waters located within the town boundaries. The application is opposed by the Northern Territory of Australia, and by the Amateur Fishermen’s Association of the Northern Territory (“AFANT”).
For the purposes of this judgment, the town of Timber Creek must be distinguished from the creek which flows within the town, after which the town is named. All references hereafter to Timber Creek will be to the town, while references to “the Creek” will be to the waterway that runs through it.
Timber Creek lies along the south bank of the Victoria River. The Creek is a tributary of that river, and joins it near the head of the tidal reach. A map of the general area surrounding Timber Creek is appended to these reasons for judgment as Schedule A1. A closer view of that area is appended as Schedule A2.
Much of the terrain surrounding Timber Creek is spectacular. Escarpments and gorges are carved into sediments from the many rivers and creeks in the area. The landscape has been shaped by volcanic activity and erosion.
The Victoria River area is generally described as a “mecca” for fishing. It has some of the best and biggest barramundi to be found in the Northern Territory. Barramundi can be caught all year round, though the best time is said to be between late March and late May, coinciding with the end of the monsoon season. There are also a number of other tourist attractions in the area. These include river cruises, wildlife parks, scenic flights, lookouts and walks.
This case concerns a claim for a determination of native title relating to a very small area, the entirety of which falls within the boundaries of what is by now an established town. It raises for consideration a number of the issues that frequently arise in native title cases, but also the operation of s 47B of the Native Title Act1993 (Cth) (“the NT Act”). That section has recently been the subject of judicial consideration, but its limits have yet to be fully explored. It has the potential to overcome the effect of any acts that might otherwise have extinguished native title.
the proceedingS before this court
These are in fact three separate, but related, applications for determination of native title. Each application is brought pursuant to s 61(1) of the NT Act.
The first application, D6016 of 1999 (Alan Griffiths on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory) was filed on 10 December 1999. The area claimed was Lot 47 Timber Creek, being described as an area proposed for compulsory acquisition by notice dated 3 September 1999. The application was brought as a defensive measure, in anticipation of an act by the Northern Territory government that might otherwise have defeated any claim to that land.
The second application, D6008 of 2000 (Alan Griffiths and William Gulwin on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory) was filed on 11 May 2000. The area claimed comprised Lots 97-100, 109 and 114 Timber Creek, being described as areas proposed for compulsory acquisition by notices dated 2 February 2000. This application too was brought as a defensive measure.
The third, and most comprehensive application, D6012 of 2000 (Alan Griffiths and William Gulwin on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory and Anor) was filed on 18 July 2000. The area claimed was described as other claimable land within the town boundaries of the town of Timber Creek, specified to be Lots 1-9, 22, 33, 35, 37, 49, 56-57, 65-74, 80, 87, 101-108, 110-113, the waterway of Timber Creek including its beds and banks, and Special Purposes Lease 00494 (Lot 16), owned by the Conservation Land Corporation.
As initially formulated, the third application included a claim to that part of the Victoria River, and its bed and banks, which lay within the town boundaries. However, shortly before this trial began, the claimants were granted leave to exclude the Victoria River from the ambit of their claim.
Although the three native title determination applications presently before the Court have never, at any stage, been consolidated, they were, with the consent of the parties, heard together. By agreement, the evidence in each application was treated as evidence in the others.
Initially, the Commonwealth was joined as a respondent to each application. However, in August 2003 it withdrew from D6016 of 1999 and D6008 of 2000 once it was satisfied that it had no interest in the land claimed in those proceedings. In January 2005, the Commonwealth withdrew from D6012 of 2000 after the claimants made it clear that they no longer proposed to pursue a claim to the Victoria River, or its bed and banks.
AFANT is a body that represents the interests of amateur fishermen in the Northern Territory in pursuing their recreational and sporting activities. It was joined as the third respondent to proceeding D6012 of 2000. With the withdrawal of the Commonwealth from that proceeding there is no longer any designated second respondent. For convenience, AFANT is still named as the third respondent.
THE CLAIMANTS’ CASE AS FINALLY PLEADED
The Further Amended Application, as filed on 18 March 2005 may be treated as a “template” for all three applications. As previously indicated, it is brought in the names of two senior representatives of the Ngaliwurru and Nungali Peoples, Alan Griffiths and William Gulwin.
The Further Amended Application was amended pursuant to leave granted well into the course of the trial. Nothing of any consequence turns upon these amendments. In substance, what occurred was simply that the description of the apical ancestors of the “native title claim group” was altered in order to reflect the evidence that had been given in the trial.
Section 61(2)(a) of the NT Act provides that an application for a native title determination may be made by a person or persons authorised to make that application by a “native title claim group”. Section 61(2)(c) provides that the person, or persons who are so authorised are jointly designated, in the singular, as “the applicant”.
In the present case neither Mr Griffiths’ nor Mr Gulwin’s authority to make this application as the persons authorised by the native title claim group to do so is disputed.
Invoking s 223(1) of the NT Act, the claimants say that, according to the traditional laws acknowledged, and the traditional customs observed, the Ngaliwurru and Nungali Peoples have, by those laws and customs, a connection with the claim area that gives rise to native title rights and interests recognised by the common law of Australia. They say that the connection of the claimants with the claim area arises through spiritual, religious, physical and historical associations, through biological, classificatory or adoptive descent through the four grandparental lines, and through processes of succession. They say that the claimants have communal rather than individual rights and interests in relation to the claim area.
The native title claim group is described in the Further Amended Application as comprised by the Ngaliwurru and Nungali Peoples who are descended from six apical Ngaliwurru persons identified as:
·Punitjkula (whose children include Takawuk and Jarapil, and whose grandchildren include Violet Paliti);
·Mangarmawuk, or Mungaramawuk (whose brother was Lamparangana, and who was Alan Griffiths’ and Pat Jatjat’s maternal grandfather);
·Tiyawatulwan (whose children include Little Wally Wanampura, and whose grandchildren include Darby Tiyawatulwan);
·Tiyawakatak (whose children include Mutpurula, whose grandchildren include Jo Lewis Nyapat, and whose great grandchildren include Josie Jones Tatpung, Stephen Jones Yawunula, and his sister Lorraine Jones Purrungurungali);
·Pulawatitj (whose children include Walamawuk and Tinker Kananji/Lalamak, and whose grandchildren include Larry Johns Mungkawali); and
·Puijayinkari (whose grandchildren include Dinah Maylinti, and whose great grandchildren include Darby Tiyawatulwan).
The claim area is described as land located in the town of Timber Creek, within the Timber Creek town boundary in the Northern Territory (Northern Territory Government Gazette No. 24, 20 June 1975). A map of Timber Creek showing each Lot claimed is appended to these reasons for judgment as Schedule B. The claim area is said to include:
·vacant Crown land and waters, Lot numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 22, 33, 35, 37, 49, 56, 57, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 80, 87, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112 and 113;
·the creek named Timber Creek (including its bed and banks) as delineated on a map attached to the Further Amended Application; and
·Special Purposes Lease 00494, granted to the Conservation Land Corporation for the purpose of carrying out its functions in accordance with the Conservation Commission Act 1980 (NT) (subsequently renamed the Parks and Wildlife Commission Act 1980 (NT)) consisting of Lot 16 of the Town of Timber Creek.
The Further Amended Application makes clear that any area in relation to which a “previous exclusive possession act” under s 23B of the NT Act has been done is excluded from the claim. That is said to be subject only to “Schedule U of this application”. However, for reasons that are not immediately apparent, no such schedule is in fact appended to the application.
The Further Amended Application states that title searches have been made in relation to Lots 6, 33 and 49, and that there were no titles issued in relation to any of those Lots.
Under the heading “Description of Native Title Rights and Interests”, the claimants assert that the Ngaliwurru and Nungali Peoples are entitled, under traditional laws acknowledged and traditional customs observed, to exercise native title rights and interests in relation to the claim area which include the following:
“(a)to possess, occupy, use and enjoy the area claimed to the exclusion of all others;
(b)to speak for and to make decisions about the use and enjoyment of the application area;
(c)to reside upon and otherwise to have access to and within the application area;
(d)to control the access of others to the application area;
(e)to use and enjoy the resources of the application area;
(f)to control the use and enjoyment of others of the resources of the application area;
(g)to share, exchange and/or trade resources derived and from the application area;
(h)to maintain and protect places of importance under traditional laws, customs and practices in the application area;
(i)to maintain, protect, prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area;
(j)to determine and regulate membership of, and recruitment to, a landholding group.”
The pleading then outlines the factual basis upon which the claimants assert their native title rights and interests. It alleges that the Ngaliwurru and Nungali Peoples were, and are, traditionally, the owners of the land and waters that are the subject of these proceedings. It asserts that the Ngaliwurru and Nungali Peoples have exercised the native title rights and interests described in the preceding paragraph “from time immemorial”. It says that they, and their ancestors, have, by their traditional laws acknowledged, and their traditional customs observed, maintained a connection with the claim area from well before the date on which the Crown acquired sovereignty. In relation to the Northern Territory, the year of sovereignty was 1825.
The pleading states that the claim area is merely part of a much larger area of land and waters owned and occupied by the Ngaliwurru and Nungali Peoples since before the acquisition of sovereignty. It states that a number of important sites both within and surrounding the claim area have been recorded and/or registered under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT). It says that the claimants’ traditional connection with the land, going back to the time of their ancestors, is demonstrated by archaeological findings that establish long standing habitation of the area. It asserts that some of this evidence goes back to a time well before the first Europeans came into contact with local indigenous people.
The pleading then sets out detailed particulars of the traditional laws and customs that the claimants say the Ngaliwurru and Nungali Peoples have long observed. These include a common kinship system, observance of common laws relating to land tenure, and traditional usage of land and waters. In addition, it provides particulars of activities currently undertaken by the claimants within the claim area. Apart from occupying the land, they are said to hunt and collect animals, fish and other food, to share, trade and exchange resources, to conduct ceremonies, to restrict the access of outsiders, and to care for the land and waters in accordance with spiritual and social obligations. They are also said to bury the dead on the land, to maintain traditional knowledge of the land and waters, and to pass that knowledge on to younger generations.
It is important to note, as the pleading recognises, that Timber Creek, and much of the surrounding countryside was, at one time, subject to pastoral leases. The terms upon which those leases were granted varied somewhat. Some might be regarded as “exclusive” while others would perhaps be characterised as “non-exclusive”, in the sense in which those expressions are used in the NT Act.
Irrespective of whether the pastoral leases were exclusive or non-exclusive, they would normally have extinguished any native title rights and interests that might otherwise be held by the claimants. However, the claimants contend, in their pleading, that s 47B of the NT Act applies to the claim area. If that is so, any extinguishment of their native title rights and interests that might otherwise result from the creation of any prior interest through pastoral leases is required, by that section, to be “disregarded”.
In this judgment, by reason of s 47B, questions of extinguishment will be addressed against a different statutory background than might otherwise be the case.
history of the CLAim area
A large folder of what the claimants termed “History Documents” was tendered before me. There are over one hundred such documents. A number of them are quite lengthy, and copiously footnoted.
It may be useful, at this stage, to provide a brief overview of the type of material contained within this folder.
For example, Document 1, “Hidden Histories”, written in 1991, contains what its author, Professor Deborah Bird Rose (“Professor Rose”), Professor of Prehistory and Anthropology at the Australian National University, describes as “Black Stories from Victoria River Downs, Humbert River and Wave Hill Stations”.
Document 2 is described as a “Log Book of Bradshaw’s Run”. It contains a number of extracts from hand written notes regarding the activities of Mr Fred Bradshaw, a pastoralist, contemporaneously made in 1894.
Document 4, “Dingo Makes Us Human – Life and Land in an Aboriginal Australian Culture”, by Professor Rose, contains endnotes from her valuable account of the life of aboriginal people in the Victoria River area prior to, and after, initial contact with Europeans in the latter part of the nineteenth century.
Document 7 is of particular significance to these proceedings. It consists of extracts from the field notes of a renowned anthropologist, Professor W E H Stanner (“Professor Stanner”), written in 1935, after had undertaken an expedition to the country around Victoria River Downs in 1934. Professor Stanner is, even today, regarded as one of the leading figures in indigenous anthropology, and his work features heavily in the anthropological reports prepared by the experts who gave evidence before me.
Also featured in the folder of History Documents were a number of papers on different subjects written by Darrell Lewis. Mr Lewis is a graduate in pre-history from the Australian National University, having graduated with honours in archaeology in 1983. He then enrolled in a Masters degree in archaeology at the same university, and completed a thesis on the rock art of the Victoria River district. He prepared as report based upon field and archival research into the history of that region which he had carried out over a 27 year period. He is married to Professor Rose, and assisted her in the preparation of her book “Hidden Histories”. He has, since the early 1970s, carried out research into the ethnography and rock art of the Victoria River district, and has written extensively on the history of the region.
Of particular importance, given the issues in this case, are the earliest extant records of European explorers, namely those of Augustus Gregory dating back to his expedition in 1855. There are a total of twenty-one separate extracts from Gregory’s notes, and they shed considerable light upon conditions in the area at the time. His discussion of his contacts with the “blacks” around Stokes Range near the eastern banks of the Victoria River is particularly illuminating.
There are many other primary sources, old and new, contained in the folder of History Documents. I have read them all, and had regard to them in preparing these reasons for judgment. I do not think that it is necessary to refer to them in any detail. The historical record is not, of itself, a focal point of dispute between the parties. Broadly speaking, the history of the area is uncontentious.
European knowledge of the Victoria River district was gained gradually, over a period of time, from the earliest explorations until settlement. The first European contact occurred in the early 1500s, when Portuguese seafarers compiled what was known as “the Dieppe map”. In 1644, Abel Tasman sailed the northern coastline, but left no records of significance so far as these proceedings are concerned. In 1819, Phillip King was sent on a mission to explore the Victoria River. However, he failed in that endeavour, and there is nothing to be gleaned from any records of that mission.
In 1839, Captain John Wickham and Lieutenant John Stokes explored the lower Victoria River, in the course of their survey of the northern Australian coast. However, they did not remain in the area for long, and left no records that are of any great utility to this case. However, there is recorded, in Stokes’ notes, an account of a native village located one mile southwest of the Victoria River containing “thirteen huts of paper bark”. In addition, Stokes recorded a party of aborigines crossing the river, heading downstream. He said that there was a “large local population”. He saw other signs of indigenous occupation, including the remains of a fire, and burnt off areas.
Captain Wickham’s reports led to the expedition of Augustus Gregory in 1855, to which I have already referred. During that expedition, a depot camp was established on the southern bank of the Victoria River, just below where Timber Creek is now located. The expedition paved the way for the arrival of the pastoralists that was to follow.
Gregory’s expedition is interesting in other ways. He sailed from Queensland to the Northern Territory, and along the Victoria River. He was shipwrecked in the area now known as Timber Creek. Legend has it that Timber Creek was given that name because Gregory had to cut down a large amount of timber in order to make repairs. The site of Gregory’s camp can still be visited, and some of his carvings can be seen on one of the Boab trees in Timber Creek. Over an eight month period he explored much of the region, and helped to open it up to others. He left a detailed published account of his expedition in his journal. It described indigenous people as having frequently visited his camp, and on one occasion as having displayed hostility. Shots were fired, and one man was slightly wounded. In addition, there are diaries and letters of expedition members who record contact with indigenous people at the camp.
The major result of Gregory’s exploration was to make known the tremendous extent of prime grazing land in the region. Lewis comments that one of the ensuring mysteries of European settlement is that this “pastoralists’ bonanza” remained untouched for almost 30 years thereafter. That is not to say that there was no significant European contact before the arrival of the pastoralists. In 1865, Captain Hutchinson, on behalf of the South Australian Government, explored the northern coast in search of a suitable location for a settlement. In 1867, Captain Francis Cadell visited the Victoria River area. However, neither he, nor Captain Hutchinson, saw any advantage in attempting permanent settlement in this region. Indeed, Captain Cadell was scathing in his description of the region, stating:
“owing to the numerous dangers of that rapid and shoal-encumbered river, also taking into consideration the 100-mile belt of the most wretched, rocky, barren and waterless country, a perfect Tierra del Fuego, that if the Elysian fields had been beyond it I should have felt it to have been a duty to report against its selection.”
In 1879, Alexander Forrest led the last significant exploration before the arrival of the first European settlers. Forrest came overland from the Kimberley region. By the time he and his men reached the Victoria River district they were starving, and many were ill. They had little or no contact with the local indigenous inhabitants. They left no records that are of any great assistance in this case.
It was at about the time of Forrest’s expedition that the first pastoral leases in this area were granted. However, the actual stocking of any of the various holdings did not commence until several years later. The first permanent European settlement occurred with the establishment of several cattle stations. These included Delamere in 1881; Wave Hill and Victoria River Downs (“VRD”) in 1883; Ord River in 1884; Auvergne in 1886; Newry in 1888; Bradshaw in 1894 and Inverway in either 1894 or 1895.
After the arrival of the first permanent European settlers, Timber Creek became an important port. It served that purpose until some time in the 1930s when the construction of roads in the region made the port redundant.
In 1890 a local store was opened at a place known as Gregory’s Depot, upstream from Victoria River Depot. This was the closest source of supply to the surrounding cattle stations, and provided a stopover point for travellers to replenish their supplies.
Indigenous inhabitants of the area soon found themselves being excluded from their traditional lands by various cattle station owners. Initially, cattle grazed on only a relatively small portion of the total leasehold areas. However, as herds grew and pastoralists become more familiar with the country, the area under their control widened. This increased pressure upon local indigenous groups. Within a few years, those aboriginal persons who had not been killed, in a hopeless conflict with white settlers, were forced out of their traditional lands, and into the bush.
During these early years of settlement, relations between the local indigenous groups and the European settlers ranged from open warfare, and massacres, to what was at times friendly cooperation. However, the unstable relations between the indigenous groups and the pastoralists soon made it obvious that there was a need to maintain law and order. In 1897 the Timber Creek police station was first built. It remains in place today.
In the early 1900s, some station managers began to encourage aboriginal people to settle at the various homesteads and outstations. A number made the transition. However, while the open conflict may have ended, cattle spearing and theft from station stores and unoccupied camps continued. This situation quickly degenerated into a kind of guerrilla warfare, with aborigines striking opportunistically and then retreating into rough range country.
For the first decade or so after settlement (“post-contact”) there was little, if any, peaceful interchange between pastoralists and aborigines. Most station work was done by whites, or by indigenous persons brought in from distant regions. Eventually things began to change. The general level of hostility decreased, and was replaced by conflict of a more sporadic nature. Peaceful contact became more regular, and by 1905 most stations had established aboriginal camps at homesteads and outstations. Gradually local aborigines mastered the various skills required for cattle work.
During the period when aboriginal people were “coming in”, they were employed variously as station hands, domestics, or as labourers whose job it was to transfer stores from ships that came along the Victoria River to shallow-draught vessels. They were also employed as teamsters, responsible for taking supplies to the various stations.
It must be remembered that throughout this period, all aboriginal people were under the control of a Chief Protector of Aborigines. See generally, The Northern Territory Aboriginals Act 1910 (SA). This resulted in laws such as the right to remove ‘half caste’ children. It also meant that indigenous persons were subjected to restricted travel and forced labour. They had no right to vote, and no right to receive an education. Although these laws provided that the Chief Protector (and under him, the police), were responsible for the welfare of aborigines, in practice it was usually the station manager or other white station employees who exercised day to day control over their lives.
The police were also responsible for issuing rations to those indigenous persons who regularly camped near the police station. While the records regarding this practice were not always well kept, it is believed that it continued until approximately 1979.
As indigenous people became increasingly involved in station work, the station economies became gradually more dependent on their labour. The period from roughly 1920 to 1960 saw little change in their conditions. The stations operated on the open range system of cattle grazing. During the dry season cattle were mustered for ear marking, branding, and other tasks. At the beginning of the wet season the stock camps closed down and most station employees were laid off. Aboriginal workers usually returned their clothes to the station store, were provided with basic provisions, and returned to the bush, walking across country to visit relatives and engage in traditional ceremonies.
Mr Lewis, who appears to have put together the folder of History Documents, and who produced the “History Report” upon which much of this summary is based, also wrote a short introductory history of the region in 1997. It is entitled “A Shared History – Aborigines and White Australians in the Victoria River District Northern Territory”. He comments, in relation to the indigenous inhabitants of the area:
“They inherited the intimate knowledge of country developed over untold generations and added to it through their own experience.”
By the 1930s, the vast majority of indigenous persons living in the Victoria River district resided in station camps, and worked alongside white men and women. Some refused ever to “come in”, living out their lives in the rough back country of the stations. Others spent time in station camps, or in station employment and then returned to the bush, moving freely between the two modes of life.
Many of the stations in the Victoria River district were large and, for much of their history, owned by overseas operators, such as Vesteys. These overseas based owners were, for years, reluctant to invest in fencing, or other improvements. Without fencing, it was difficult to control cattle, or to improve bloodstock. Consequently, cattle on the stations were more like wild animals than domestic beasts. Stock work resembled hunting rather more than husbandry.
World War II impacted only slightly on the Victoria River district. Although the town of Katherine was bombed by the Japanese, no homesteads in the vicinity of the Victoria River were attacked. Nonetheless, there was a small military presence at Timber Creek. Trenches were dug, and the local police hid important records and stores, in case of invasion.
One effect of the war was that many white station employees and drovers enlisted in the armed forces. This left a shortage of stockmen. Indigenous persons began to play a greater role in the cattle station economy, and some were put in charge of stock camps for the first time. Victoria River district aborigines became aware that improved work conditions were possible, and aspired to a greater degree of equality than had hitherto been the case. However, when the war ended, station life for aborigines reverted, more or less, to what it had been in earlier times.
In 1966, local dissatisfaction on the part of indigenous persons finally came to a head at Wave Hill. Aboriginal employees walked off the job, and camped in the Victoria River bed. Initially they demanded full wages and improved conditions before returning to work. However, these demands were soon overtaken by others, including in particular a demand for land rights. By 1972, aborigines from other stations had joined the strike.
This action caused turmoil in the regional station economy. Ultimately, indigenous persons gained independence from the stations, and began to receive full wages. The stations themselves reorganised their economies, spending more on fencing and other infrastructure, and relying increasingly on technological advances rather than on large numbers of low paid stockmen. Consequently, far fewer aborigines came to be employed than had previously been the case.
Until the 1970s, all land in the Victoria River district had been held under some form of European title, generally pastoral leases or, annual pastoral permits. In addition, some of the land was Crown land, in the form of town commons, stock routes and stock reserves. In 1973, the Commonwealth Government acquired Kildurk Station, which was later renamed Amanbidji. It subsequently turned over that land to the indigenous community as aboriginal freehold land.
The Wave Hill strikes also contributed to the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”). This resulted in some indigenous groups gaining grants of land in the northern Victoria River region. For example, Fitzroy Station, Innesvale Station, the Stokes Range north of Jasper Gorge, and Jasper Gorge itself, Mistake Creek, part of Wave Hill, and the Hooker Creek Aboriginal Reserve all came under aboriginal control. Gaining title to this land enabled the local community to avail itself of infrastructure which included housing, electricity and schools.
Mr Lewis, upon whose work I have based a good deal of this brief historical account, comments that the strikes of the late 1960s and early 1970s, and the rise a of land rights movement, led to resentment by white cattlemen towards aborigines. In some instances, indigenous persons found that they were no longer able to live on the stations, and that they were forced to move to the nearest town. Alternatively, they moved to aboriginal living areas such as Daguragu and Yarralin. Ultimately a generation of young indigenous persons grew up with little or no experience of station work, few prospects of meaningful employment, and the attendant social and economic problems that this entailed.
According to Mr Lewis, conditions began to improve after the mid-1980s. Old resentments began to die away, and the number of indigenous persons working on the stations steadily increased. In addition, education standards began to improve. By 1997, indigenous health workers, teaching aides, and police aides were being employed in the region. Indeed, in that year, four of the eight Timber Creek Town Councillors were indigenous persons. That made Timber Creek the only town in Australia that was governed by a council with an equal number of indigenous and non-indigenous representatives.
In 1983, a primary school was established at Timber Creek. Initially only indigenous children attended. Local non-indigenous children undertook their studies through other means. The first non-indigenous child was enrolled in 1992. By 1997 virtually all local non-indigenous children attended the school. In addition, an Aboriginal Community Police Officer was assigned to the local police station.
Mr Lewis concludes that the historical record clearly shows that aborigines have been associated with the Timber Creek area from the time of the first European explorers and during the entire period of European settlement. He says that there is no reason to believe that the aborigines encountered by the explorers and early settlers were not the ancestors of the aboriginal people living in the area today. He notes that indigenous people strongly identify with particular tracts of country, and that Stanner recorded a long standing connection between the Nungali and Ngaliwurru peoples with Timber Creek as far back as 1934. He says that the association of these people with Timber Creek has been maintained throughout in spite of early violent contact with Europeans. He also comments that since the successful land claim over Timber Creek in 1985, strong communities have developed in the area. He adds that despite over 100 years of European settlement, traditional languages are still spoken, ceremonies performed and traditional foods and medicines harvested. People know where the travelling and localised Dreamings are active, and have taken steps to map and register sacred sites. Traditional trade links still operate. As well, people remember and recount their history. Young men’s initiation ceremonies are performed regularly. In his view, there is much about the manner in which the local community goes about its daily life that reflects long standing traditional law and custom.
the ABORIGINAL land commissioners
The claimants base their case in large measure upon findings made by various Aboriginal Land Commissioners who exercised powers under the Land Rights Act, between 1985 and 1992. Those findings relate to land that immediately surrounds Timber Creek, but not the town itself. That is so because the Land Rights Act does not encompass claims to land situated within towns. The findings are said to be of particular importance not merely because of the proximity of the areas concerned, but also because they relate basically to the same indigenous groups as are claimants in the proceedings before me.
The claimants acknowledge that any findings made by the Aboriginal Land Commissioners must be qualified having regard to the fact that they were made under the Land Rights Act, a statutory regime that differs significantly from that of the NT Act. Under the Land Rights Act the primary issue is whether a particular claimant, or claimants, can demonstrate “traditional Aboriginal ownership”, as that expression is defined in s 3(1) of that Act. That section provides, in substance, that unless the contrary intention appears “traditional Aboriginal owners” in relation to land means a “local descent group” of aboriginals. That group must have common spiritual affiliations to a site on the land that places the group under a primary spiritual responsibility for that site, and for the land. The group must be entitled by aboriginal tradition to forage as a right over the land.
The key term, “traditional Aboriginal owners” is not a term of art. It is rather a creature of statute. The meaning of the term is influenced to some extent by the definition in s 3(1) of “Aboriginal tradition” which is:
“the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.”
There is one key distinction between the Land Rights Act and the NT Act. Under the Land Rights Act, claimants are not required to establish either continuity or historical links with the land. Indeed, it has been held that by reason of the definition of “Aboriginal tradition” in s 3(1), the Land Rights Act deals not so much with “traditions”, in the sense of immutable customs handed down from ancestors, but rather with the observances, customs and beliefs actually practised by a particular community at the time of the relevant inquiry.
The position under the NT Act stands in sharp contrast. The claimants must show that they are a society united in and by their acknowledgment and observance of a body of laws and customs; that the present day body of accepted laws and customs is, in essence, the same body of laws and customs acknowledged and observed by their ancestors (adapted to modern circumstances); and that the acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty in 1825.
There are four determinations under the Land Rights Act that are of particular significance so far as the claimants are concerned. Those findings were all generally favourable to the indigenous groups that instituted the land claims. Section 86 of the NT Act renders them admissible in these proceedings as “the transcript of evidence in any other proceedings before … any other person or body”: Risk v Northern Territory of Australia [2006] FCA 404 per Mansfield J (at [431]-[432]) (“Risk”). The four determinations are as follows, in chronological order:
·Timber Creek Land Claim Report No 21 (19 April 1985) – Commissioner Maurice
- Kidman Springs/Jasper Gorge Land Claim Report No 30 (31 March 1989) – Justice Olney
- Stokes Range Land Claim Report No 36 (28 June 1990) – Justice Olney
- Ngaliwurru/Nungali (Fitzroy Pastoral Lease) Land Claim No 137 and Victoria River (Bed and Banks) Land Claim No 140 Report No 47 (22 December 1993) – Justice Gray
The Timber Creek Land Claim Report No 21 (19 April 1985)
This land claim arose out of an application by the Northern Land Council in 1981. Its original intention was to claim only the Timber Creek Commonage Reserve (“the Reserve”). However, before the inquiry commenced the application was twice amended so as to include all those parts of the bed and banks of the Victoria River between the eastern and western boundaries of the Reserve which did not form part of the town of Timber Creek. At a later stage of the inquiry, the claimants withdrew so much of the claim as related to the bed of the river, and its northern bank. However, they maintained the claim to the southern bank, immediately adjoining the Reserve.
There were 163 claimants in all. They were presented as one group, comprising six sub-groups, each of which was associated with a separate tract of land. During the course of the proceeding, the senior members of the sub-group identified the country with which that sub-group was associated by referring to a focal site, and by associating that tract of land with a named male person.
Commissioner Maurice noted that it appeared from the genealogies and evidence associating past generations with one tract or another that the predominant, if not exclusive, principle for recruitment to the sub-group was patrilineal descent. The only exception was that of a single sub-group, designated sub-group A, whose patriline had died out in comparatively recent times.
An anthropologist with considerable experience in land claims, Dr Ian Keen, described the claimants in that land claim as a “cognatic kin group”. Commissioner Maurice accepted that description as apt, but considered it unnecessary to rely upon any such concept to arrive at the conclusion that the claimants now formed a “local descent group” within the meaning of the Land Rights Act. The Commissioner said (at [34]):
“It is enough for me to say that up until the generations constituted by the children and grandchildren of the senior generations of claimants, there was operating a principle of patrilineal descent to which all persons born up to then appeal to legitimise their membership of the total group. The two senior members of sub-group A can, and to my mind do, rely in part upon succession to the country of their deceased mother’s father. All those in the succeeding generations can point to descent through the patriline or the matriline or both, and that, I am satisfied, is the principle of descent which has been operating for two or three generations among this group.”
Sub-group A was the key sub-group. The tract of land with which it was traditionally associated included the western three-quarters of the claim area, and the whole of the land comprised within the boundaries of Timber Creek. When the claimants referred to that tract of land, they invariably described it as “Lamparangana’s country”. Its focal site was described as “Makalamayi”, in the north-east corner of the town area. The Commissioner described this as an important site, associated with the Snake, Stingray, Shark and Barramundi Dreamings.
The evidence before the Commissioner was that Lamparangana had died about 30 or 40 years prior to the hearing. That meant that he probably died some time in the late 1940s or the early 1950s. This was within the living memory of at least the more senior claimants, many of whom appeared to have known him. The genealogies prepared for the purpose of the hearing showed some four generations below Lamparangana. He was said to have had only one child, a son, who had been killed whilst still young. He was also said to have had a brother, Mangaramawuk who had a daughter, Clara. She in turn had two children, Alan Griffiths and Pat Jatjat. They were both claimants in the Timber Creek Land Claim as were their children and grandchildren.
Alan Griffiths was the only member of sub-group A to give evidence in the course of the Timber Creek Land Claim. He said that he was born and raised on his father’s country, at VRD. As a young boy, he had regularly visited Timber Creek with his parents. By the 1980s, he and his family lived in Kununurra, and had done so for some years. However, he maintained that it was his custom to visit Timber Creek annually, with his sons.
Mr Griffiths’ claim was based substantially on his direct genealogical links to Mangaramawuk, his maternal grandfather. The other claimants clearly regarded him as one of the traditional owners of Lamparangana’s country and, so it appeared to Commissioner Maurice, to the rest of the claim area as well.
The Commissioner observed (at [38]):
“As the hearing progressed it became evident that Allan (sic) has played and continues to play a major role in ceremony and ritual, not only at Timber Creek but also at places like Kununurra, Port Keats, Daly River, Pulumpa and Peppimentari.”
Commissioner Maurice then referred to Mr Griffiths’ sister, Pat Jatjat. He noted that she lived at Yarralin, an Aboriginal community located on VRD, about 150 kilometres by road from Timber Creek. She was married to a patrilineal descendant of sub-group D, which had its focal site at Wantawul. Although she had spent a good part of her life on VRD, she was well known to most of the other adult claimants. Indeed, she had lived at Timber Creek until about a year or so before the Timber Creek Land Claim Report was completed. Her husband had been employed as a tracker by the Timber Creek police.
The Commissioner observed (at [40]):
“What did emerge clearly from the evidence was that senior members of other sub-groups had a detailed knowledge of and demonstrated strong spiritual affiliations with the sites and dreamings on Lamparangana’s country.”
The Commissioner also identified the members of sub-group B, its focal site being Wunjayi, linked to Little Wally, the “now deceased father of Darby Tiyawatulwan”. He said that there was a strong affinity between Little Wally and Lamparangana. Before he died Lamparangana was reputed to have asked Little Wally to take over his, Lamparangana’s, country. Darby also gave evidence before the Commissioner, and was regarded as an impressive witness. The Commissioner found Darby to be a man who strongly identified with the claim area, and its still rich mythology. Apart from Darby and his children, the only other member of sub-group B was his deceased sister’s son, Georgie Jones.
In re-examination, Mrs Jones said the tides went approximately as far as the police station.
The Court then moved down to the bank of Timber Creek, almost at the juncture with Victoria River. Mrs Roberts and Mrs Jones picked wild gooseberries and bush tomatoes. Mrs Jones said she first started eating bush tucker at about the age of six.
Mr Alan Griffiths then pointed to a paperbark tree, which he said was used for making traditional hats.
Site 4: Tilwarini (water hole with water lilies and head wetting ceremony)
Mr Griffiths conducted a second head wetting ceremony for all newcomers to this site. He said that it was called “Tilwarini”, and was the site of the humpyback monster. Head wetting was done here for the same reason as at the site of the first head wetting – for the Dreaming. The Dreaming had left something here, and head wetting had to be done “so country will know you”, otherwise a person could suffer illness or death. As a boy, Mr Griffiths had camped at this place, in order to get his head wet.
Under cross-examination, Mr Griffiths said that the Dreaming at this site differed from the Dingo Dreaming at the site of the first head wetting ceremony. He said that the humpyback had made a toilet here. He had conducted a head wetting ceremony for some of his grandchildren on this day because this was the first time they had been to this site.
Mr Griffiths said that it was unusual for members of his family to fish at this site. In the wet, there was sometimes more water at the water hole. Sometimes, they might catch small perch. In addition, cherrapin might be caught at this location.
Mr Jones then gave evidence. He was asked how he knew his way to this place and replied that he had known about it from the time that he was a child. His granddaughter had gone through a head wetting ceremony that day because she had never been to that site before. She was only four years old. His other grandchildren had been through a head wetting at this location. He said that he knew the Humpyback Dreaming. He said it was a very important Dreaming, and that he had learnt it from his elders. If Mr Griffiths had not been present, it would have been his role to call out to the monster.
Under cross-examination, Mr Jones told the Court of the path that the monster had travelled, finishing at Maiyalaniwung, Violet Paliti’s country. He said that if a person travelled to Maiyalaniwung for the first time, he or she would have to go through a head wetting ceremony there too because it was a different country. The country had to “get to know you”. Mr Jones said that he came to this area often to get honey from the cave, yam and water lily. He did not like whitefellas coming here from the town to get their bait. They got their cherrapin closer to the township. He said:
“If we don’t do it, why – you know, why have you been doing it?… you can’t just walk into any European’s little block of land and do what you want to do. And why they go onto Aboriginal land and do what they want to do?”
Mrs Roberts then collected some lily root, which she described as “nati”. She said that it could be eaten as is, boiled or roasted. The fruit from the lily flower could be eaten as is.
Mrs Jones showed the Court a fruit like a grape which she said was called “kiringiltji” or “kumpunyu” in Nungali. She had a smaller white version called “margarin”. She showed the Court a rock called “marta” in Nungali that she said made babies strong. She would burn the rock on a fire, smash it up into a powder, mix it with some water to make a paste, and put it on the baby.
Site 5: Lirimin (Centipede Dreaming)
Mr Griffiths approached a rectangular stone protruding from the ground by approximately a foot. He explained that this was a sacred site. An elder had told him that he was not allowed to touch the stone, otherwise he might get sick. He was not even permitted to put his hand on the stone.
Under cross-examination, Mr Griffiths said that he could mark a dead person’s name in charcoal. He said no one was buried at the site. It was simply a Dreaming. The stone had been put there in the dreamtime, and he had been shown it by his grandfather
Mr Jones gave a similar account of the significance of the stone. He explained that the barbed wire fence around the site had been erected by the Sacred Sites Authority five or six years earlier. This was because the cattle had damaged the area. Originally, there had been a grazing licence over the site.
Pat Jatjat, Mr Griffiths’ older sister, then gave evidence. She said that she had grown up on VRD and had heard the Centipede Dreaming from her grandfather.
William Gulwin said that he knew this place as “centipede” in English and “limirin” in Ngaliwurru.
The Court then moved several metres to a flatter rock embedded in the ground. Mr Griffiths said it was the head of the centipede. He pointed to two eyes in the rock to indicate the head. He said he was first shown this rock when aged about four. An elder had told him to look out for it. He said that when he died, his grandchildren would look after it. He explained that his wife was from Miriuwung country so he had been forced to leave Mr Jones in charge of Timber Creek.
Site 6: Ritual ground
The Court arrived at a place marked out by a rock which Mr Griffiths described as the “main ring place” used for a “ceremony for kids”. He said that people from pastoral leases such as Bradshaw, Daly River, Legune, Kildurk, Waterloo, VRD and Coolibah used this site. He noted that no women had gotten out of the cars to see this site because it was reserved for men. The boys who were initiated here were ten or eleven years of age. He pointed to his grandson, Sidney, who was ten years old, as an example of how old a boy would be at initiation. He said a corroboree was conducted here when Old Pankaman got sick. He had a photograph of a painting that he had painted. He said the rock had been there before he was born.
Under cross-examination, Mr Griffiths said that the people that he had named from the pastoral leases were from Jaminjung, Ngaringman, Karangpuru, Ngangomeri and Ngaliwurru. He also said that the last time a children’s ceremony had been conducted at this site was about thirty years ago. He elaborated further on the corroboree done for Old Pankaman. He said that this was not Pankaman’s country but that he had become sick in this area so that was where the corroboree was done. Then his spirit went away. However, he did not die. He was still alive and living at Stokes Range.
In re-examination, Mr Griffiths said that the fact that no kids ceremony had been done here for thirty years did not mean it was not an important site. He said that he and his family were still obliged to look after it. Indeed, he said the site was still used as a place for punishment.
Mr Griffiths was also asked whether he had a song for the Centipede Dreaming. He said that he did; and that his grandfather had given it to him. He sang it for the Court. He said “kudjingka” was the word for song, and “yarinti” was the song for the centipede “when he bite you”. He said he had kudjingka in his head, and that songs were not written down.
Finally, under further cross-examination, Mr Griffiths said that the Centipede Dreaming was his own, given to him by his mother’s father. His mother’s father had also given him the Dingo Dreaming. If anyone “had” those songs, they could sing them, provided they asked his permission.
Site 7: Old cemetery site
The last site to which the Court was taken was the old cemetery site. Mr Jones began by indicating a stone, which he said was his mother’s mother’s grave. Her name was Holly. He said that some stones could not be seen because of the grass. He said that about sixty to seventy people were buried at the site. He pointed out old tracks in and out of the area.
Further along, Mr Jones pointed to the grave of Tiger Wajaka from Stokes Range. He had been a police tracker, before Mr Jones’ time.
Mr Jones then pointed out an old mattress frame used for carrying the bodies to this site. He said the bodies were wrapped in calico for burial.
He pointed to a cave and said that Old Lamparangana was buried there. His said that Lamparangana’s skull was still in that cave.
Mr Jones next pointed to some glass embedded in the ground and said that women used glass to cut their legs to obtain blood that was painted onto the foreheads of the corpses.
The Court then arrived at a burial site. There were rocks in a ring shape. A billycan had been left there and Mr Jones explained that this was to give water to the dead. Only a son-in-law or a brother-in-law could dig a grave or bury a dead person. The same rule existed today.
Mr Jones gave the names of other people who were buried at this site: Johnny, Dina (Mrs Jones’ grandmother), Bullita Jack, Depot Jack, Polly (his grandmother), Sandy (Mrs Jones’ mother’s father), Jacky Jacky (Violet Paliti’s father) and others.
Mr Jones explained the term “poison cousin”. He said there were certain people in one’s family who you could not talk to or sit next to; for example, one’s mother-in-law.
He said that burials were still conducted at Myatt because burial had to take place at a registered site. He also said that burials had to be done at the “right” place – a person had to be buried to “go back” to his or her own country.
Mrs Jones confirmed that Old Lamparangana was buried at this site. She referred to him as her “mapiju”, her “father uncle”. She named other people buried here: Walamawuk and Pankaman, who were two sisters, Sandy (her mother’s father), Lapir, Old Tiger Wajaka, Old Charlie and others. When asked whether these people were relatives, Mrs Jones answered, “Yes, relation, all Nungali people.”
Mr Griffiths then said that he had been to the cave once.
DAY 6, TUESDAY 8 MARCH 2005
Site 1: Muruning (One Mile)
At the conclusion of Mrs Paliti’s evidence, the Court visited One Mile community, a short drive from the centre of Timber Creek. Evidence was given regarding this community, whose aboriginal name was “Muruning”. That name was taken from the Dingo Dreaming. Sammy Darby was among those who lived there.
He described some of the bush tucker around his home. He identified a green plum called “jamuru”. He said that by the trees on the creek, he could get bush apple when it turned orange. Women collected bush yam along the creek beds. Yams were from there from the beginning; they were left there in the dreamtime. He said there were also sugarbag trees by the creek.
Site 2: Murlun (Half Mile)
The Court then visited a smaller community, closer back towards the centre of Timber Creek. The name of the place was “Murlun”. Once again, the Court was shown bush tucker that was collected and eaten, and told about the fish that were available from the waters of Timber Creek. There was evidence that the creek ran all year round, even in the dry season.
Site 3: Kunuma (Blowfly Dreaming site at Boab Tree)
The Court was taken to a place at the rear of the caravan park in the centre of town, near the creek itself. Mr Griffiths explained how the little Blowfly Dreaming was near the big boab tree. That Dreaming continued even thought the tree was gone. He called the tree “kunama”.
Pointing out bush tucker, he identified a fig tree (“jalwa”) and flying fox (“warpa”), which he said he still ate. Whitefellas thought they were poison, but, in reality, they were really very tasty.
Explaining more about the Blowfly Dreaming, Mr Griffiths said that the fly had stopped the dingo at this site and told him it was his home, and that the dingo should turn back. He sang the “kudjingka”, or song, of the dingo. Thereafter, the dingo had run back to the site that the Court next visited.
Site 4: Wirip Ngalur Katpan (site where Dingo Dreaming ended at pool)
Mr Griffiths took the Court past the place where newcomers had undergone a head wetting on the first day of the trial at the site of the Dingo Dreaming. He said that this was the place to which the dingo had returned when the blowfly turned him back. It was still a part of Timber Creek. The water used to be clear before the bank was built up at the site of the head wetting. There had been a rock visible at this site, but when the bank was built, it backed up the water so that it covered the rock.
Mr Griffiths pointed out more bush tucker at this site. He said there were bush yam, fig trees and leichhardt trees. The leichhardt tree had yellow fruit in it. There was also a creeper that was good for eating. He said that the yam had been left by the humpyback.
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