Harris v State Minister for the State of Queensland
[2024] FCA 1059
•13 September 2024
FEDERAL COURT OF AUSTRALIA
Harris v State Minister for the State of Queensland [2024] FCA 1059
File number: QUD 144 of 2015 Judgment of: SARAH C DERRINGTON J Date of judgment: 13 September 2024 Catchwords: NATIVE TITLE – native title determination application pursuant to s 61(2) of the Native Title Act 1993 (Cth) (NTA) – non-claimant application by non-native title interest holder to satisfy s 13(1)(a) of the NTA – application to convert term lease to perpetual lease – whether there are identifiable communal, group or individual rights and interests possessed under traditional laws and traditional customs – whether it is possible to identify a body of traditional laws and customs in relation to the acquisition, transmission and exercise of rights in relation to the Non-claimant Area – whether there has been continuity of traditional law and customs Legislation: Federal Court of Australia Act 1976 (Cth) s 20(1A)
Native Title Act 1993 (Cth) ss 13(1), 61, 61(1), 61(2), 61G, 63, 81, 84, 84(5), 87, 94A, 223, 223(1), 225(1), 253
Land Act 1994 (Qld) s 165
Cases cited: Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472
AB (decd) (obh of Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268
Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210; 287 FCR 1
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Bodney v Bennell [2008] FCAFC 63; 167 FCR 84
CG (Decd) (Obh of Badimia People) v State of Western Australia [2016] FCAFC 67; 240 FCR 466
Dempsey (on behalf of the Bularnu, Waluwarra and Wangkayujuru People) v State of Queensland (No 2) [2014] FCA 528; 317 ALR 432
Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849
Fortescue Metals Group v Warrie obh of Yindjibarndi People [2019] FCAFC 177; 273 FCR 350
George on behalf of the Gkuthaan and Kukatj People v State of Queensland [2020] FCA 1310
Jango v Northern Territory of Australia [2006] FCA 318; 152 FCR 150
Lander v State of South Australia [2012] FCA 427
Mabo v State of Queensland (No 2) [1992] HCA 23; 175 CLR 1
Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41
McLennan on Behalf of the Jangga People No #3 v State of Queensland [2023] FCAFC 191; 301 FCR 452
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422
Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland (No 5) [2023] FCA 135
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442
Owens on behalf of the Tagalaka People v State of Queensland [2012] FCA 1396
Rainbow on behalf of Kurtjar People v State of Queensland (No 2) [2021] FCA 1251
Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 25) (Kunjen Olkol determination) [2024] FCA 741
Ross on behalf of the Cape York United #1 Claim Group v State of Queensland(No 26) (Kowanyama People #2 determination) [2024] FCA 742
Ross on behalf of the Cape York United #1 Claim Group v State of Queensland(No 27)(Kowanyama People #3 identified parcels determination) [2024] FCA 743
Ross on behalf of the Cape York United #1 Claim Group v State of Queensland(No 28) (Kunjen Olkol and Kowanyama People jointly held area determination) [2024] FCA 744
Ross on behalf of the Cape York United #1 Claim Group v State of Queensland(No 30) (Kowanyama People, Kunjen Olkol and Olkola jointly held area determination) [2024] FCA 746
Sampi v State of Western Australia [2005] FCA 777
Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; 261 FCR 183
Western Australia v Ward [2002] HCA 28; 213 CLR 1
State of Western Australia v Ward [2000] FCA 191; 99 FCR 316
Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320
Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229
Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 312 Date of hearing: 8 April – 9 April, 15 April – 17 April, 19 April 2024 Date of last submissions 14 June 2024 Counsel for the Applicant: Mr D O’Brien KC with Mr M McKechnie Solicitor for the Applicant: Marland Law Counsel for the First Respondent: Ms E Longbottom KC Solicitor for the First Respondent: Crown Law Counsel for the Second Respondent: Mr D Yarrow with Ms L Kruger Solicitor for the Second Respondent: North Queensland Land Council Native Title Representative Body Aboriginal Corporation (ICN 1996) ORDERS
QUD 144 of 2015 BETWEEN: SCOTT ALEXANDER HARRIS
Applicant
AND: STATE MINISTER FOR THE STATE OF QUEENSLAND
First Respondent
NORTH QUEENSLAND LAND COUNCIL NATIVE TITLE REPRESENTATIVE BODY ABORIGINAL CORPORATION (ICN 1996)
Second Respondent
ORDER MADE BY:
SARAH C DERRINGTON J
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT DETERMINES AND DECLARES THAT:
1.Native title does not exist in relation to the land and waters contained within the lease area that is Lot 4 on Crown Plan SE1 in the State of Queensland in respect of which there is no approved native title determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
INTRODUCTION
[1]
THE RELEVANT LEGISLATION
[23]
THE APPROACH TO A NEGATIVE DETERMINATION
[32]
THE ISSUES IN DISPUTE
[40]
Overview of lay and expert witnesses
[46]
The expert evidence
[47]
The lay evidence
[60]
ARE THERE IDENTIFIABLE COMMUNAL, GROUP OR INDIVIDUAL RIGHTS AND INTERESTS POSSESSED UNDER THE TRADITIONAL LAWS AND CUSTOMS?
[67]
The pre-sovereignty land-holding groups
[72]
Tagalaka interests at Effective Sovereignty
[78]
IS IT POSSIBLE TO IDENTIFY A BODY OF TRADITIONAL LAWS AND CUSTOMS IN RELATION TO THE ACQUISITION, TRANSMISSION AND EXERCISE OF RIGHTS IN RELATION TO THE NON-CLAIMANT AREA?
[107]
The pre-sovereignty society/societies
[111]
Rights and interests held by members of the society under traditional laws and customs
[117]
HAS THERE BEEN CONTINUITY OF TRADITIONAL LAW AND CUSTOMS?
[130]
Relevant legal principles
[130]
The disagreement
[139]
The applicant’s lay evidence relevant to continuity
[142]
The evidence as to continuity
[173]
Which apical ancestors held rights and interests in the Non-claimant Area?
[179]
The evidence of maintenance of connection
[253]
Ms Callope and Ms Douglas
[253]
Ms Mudd
[275]
Mr Henry
[284]
DISPOSITION
[305]
REASONS FOR JUDGMENT
SARAH C DERRINGTON J:
INTRODUCTION
The applicant, Mr Scott Alexander Harris is the lessee of some 901,000 hectares of land located in the Gulf Country in far north-western Queensland on which he operates the cattle station, Strathmore Station. Strathmore Station is the subject of a term lease which commenced on 1 April 1956 and terminates on 31 March 2049. Mr Harris purchased and took possession of Strathmore Station on 14 November 2004. In May 2014, Mr Harris applied to the Department of Natural Resources and Mines (DNRM), pursuant to s 165 of the Land Act 1994 (Qld), to convert Strathmore Station from a term lease to a perpetual lease. On 25 June 2014, the DNRM made an offer to Mr Harris to seek Governor in Council approval to the issue of a perpetual lease on conditions, including that Mr Harris address the requirements of the Native Title Act 1993 (Cth) (NTA). Relevantly, the letter stated:
Investigations have determined that native title may continue to exist over the land to which this offer applies. The State requires you to address the requirements of the Commonwealth Native Title Act 1993 (NTA) before the State will progress the proposed dealing. The NTA sets out how certain dealings can proceed over land and waters where native title may continue to exist.
That is the reason for this proceeding.
By an originating application dated 9 April 2015, Mr Harris seeks a determination under s 13(1), and pursuant to s 61(1), of the NTA, that native title, as defined in s 223 of the NTA, does not exist (the non-claimant application), subject to existing determinations of native title, in the area subject to a pastoral lease described as Tenure Reference PH 34/248 (Lease), being Lot 4 Crown Plan SE1, contained in title reference 17668054 (Non-claimant Area). The Non-claimant Area does not include the entire land subject to the relevant lease, in that it is subject to (and therefore, excludes) extant determinations of native title. The dark dashed line shown on the map below delineates the Non-claimant Area within the area subject to the Lease.
Map showing lease area in broader geographical region with surrounding determinations (Exhibit 9D)
The parties tendered a Statement of Facts and Legal Issues Agreed and in Dispute (SOFLI). The material facts relevant to the background and history of the proceedings were deposed to by Mr David Kempton in three affidavits filed respectively on 11 May 2022, 1 July 2022 and 3 August 2022 (together, and respectively, the First, Second and Third Kempton Affidavits). Those background facts include the following.
On 17 April 2015, Mr Harris wrote to North Queensland Land Council Native Title Representative Body Aboriginal Corporation (ICN 1996) (NQLC) confirming that he had filed his non-claimant application, and seeking advice as to whether there was any potential native title claimant who may have an interest in the Non-claimant Area and who is in a position to lodge a claim and achieve registration. No response was received from NQLC. On 14 May 2015, the National Native Title Tribunal (NNTT) advised Mr Harris that it was commencing notification of the application.
Two determinations of native title, which overlap Strathmore Station, have already been made: Ewamian People #3 Determination (QCD2013/007) and Tagalaka People #2 Determination (QCD2012/013). On 19 May 2015, Mr Harris and his then solicitor, Mr Kempton, attended a joint meeting in Cairns, Queensland, with members of the board of the Ewamiam Aboriginal Corporation (ICN 7950) (EAC) and the Tagalaka Aboriginal Corporation (ICN 2272) (TAC), and their respective advisers, to discuss the requirements of the NTA and seek their support for Mr Harris’ tenure conversion application. On 9 June 2015 and 10 July 2015, respectively, the EAC and the TAC provided letters of support addressed to the Minister for Natural Resources and Mines confirming in principle support for Mr Harris’ application on the understanding that, among other matters, the proposed conversion would not extinguish or require the surrender of native title rights and interests.
Subsequently, on 7 August 2015, certain persons on behalf of the Kurtjar People filed a Form 5 – Notice of Intention to Become a Party to an Application. An application for a determination of native title had been filed on behalf of the Kurtjar People on 19 June 2015 over an area which overlapped the north-western edge of Strathmore Station within the Non-claimant Area. Mr Harris was joined as a respondent to that application, by Order of Rangiah J, on 12 September 2016. Ultimately, the Kurtjar applicants sought leave to amend the original claim area on 24 July 2019 and filed an amended application on 2 August 2019 excluding the area of overlap. Consequently, Mr Harris was removed as respondent from that application, by Order of Rares J dated 1 August 2019, and a determination of native title was made by Rares J on 15 October 2021 following a contested hearing: Rainbow on behalf of Kurtjar People v State of Queensland (No 2)[2021] FCA 1251 (Kurtjar People Determination (QCD2022/009)).
On 24 February 2022, Mr Harris again wrote to NQLC asking whether it was aware of any persons or groups who might hold native title in the Non-claimant Area. Counterpart letters were sent to the EAC, the TAC, and the Carpentaria Land Council Aboriginal Corporation (ICN 268) (CLCAC), on the same day.
By the SOFLI, the parties are agreed that the following native title claims in the vicinity of the Non-claimant Area have been discontinued or amended to exclude overlap with the Non-claimant Area since 1997:
Original
Date Filed
Claim Name
Relationship to Non-claimant Area
Claim Status
1997
Wakamin
(Wakaman)
Bulimba and Torwood Station Area. Both stations share a boundary with Strathmore to the east. Located outside of the Non-claimant Area.
Struck-out
2005
1998
Ewamian
Includes the southern end of Strathmore Station; below the Einasleigh River. Originally included part of the Non-claimant Area (withdrawn). Borders Tagalaka country. Located outside of the Non-claimant Area.
Determined
2013
1998
Tagalaka
Includes the southern end of Strathmore Station; below the Einasleigh River. Originally included part of the Non-claimant Area (not pressed). Borders Ewamian country. Located outside of the Non-claimant Area.
Determined 2012
1998
Kowanyama
Located to the north-west of Strathmore Station. Located outside of the Non-claimant Area.
Determined 2015
2002
Red River
Covered the immediate areas along the course of the Red River. Overlapped part of the Non-claimant Area.
Discontinued 2004
2008
Kunjen
Covered Bulimba Station only. Bulimba Station shares a boundary with Strathmore Station. Located east of the Non-claimant Area.
Discontinued 2009
2015
Kurtijar
Located to the west of Strathmore Station. Originally included part of the Non-claimant Area. Excludes the Non-claimant Area.
Determined 2022
The map below illustrates the claims referred to in the table.
Exhibit DK-44 to the Second Kempton Affidavit
Before continuing, it is important to say something about the consequence of this proceeding for the various determinations surrounding the Non-claimant Area, all of which, except the Kurtjar People Determination, were consent determinations. It is well understood that a consent determination does not involve any adjudication as to whether there is a proper evidentiary foundation to establish each of the matters in (a) to (c) of the definition of native title or native title rights and interests as stated in s 223(1): see Lander v State of South Australia [2012] FCA 427 at [11]‑[13] (Mansfield J) and Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]‑[56] (Mortimer J). As the Full Court said in McLennan on Behalf of the Jangga People No #3 v State of Queensland [2023] FCAFC 191; 301 FCR 452 (McLennan FC) at [92]:
When the Court makes a determination of native title by consent, it makes a determination of a special kind that reflects the exceptional nature of the legislation. It is not concerned with adjudicating common law rights. It is concerned with adjudicating whether there are traditional rights and interests that are recognised by the common law. The NTA responds to the need for a “special procedure…to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character” …
The Full Court continued, at [97]:
In making such determinations, the Court is not called upon to consider whether the rights and interests that are to be determined to exist might also be possessed by the same people under the same laws and customs in places that are outside that particular area. As has been explained, the whole of the determination is geographically confined. Therefore, no part of any findings reach beyond the area that is the subject of the application in respect of which the determination is made.
Consequently, to the extent reference is made in this judgment to existing determinations of native title in the areas adjacent to or in the broader region, that is not to suggest that this Court is relieved of the obligation to consider the rights and interests that are said to obtain “in relation to” the particular lands and waters of the Non-claimant Area.
Nevertheless, once an area has been the subject of a determination of native title, that determination cannot be undermined in subsequent proceedings. As was emphasised by Jagot J in Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; 261 FCR 183 at [274], in accordance with s 225 of the NTA, each determination determines the persons holding the common or group rights comprising the native title in the determination area and the nature and extent of those rights in relation to the determination area. To the extent that any witness sought to contend that one or more of the extant determinations was wrong in particular respects, that evidence must be ignored.
Similarly, in Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland (No 5) [2023] FCA 135, when speaking of the significance of prior consent determinations, Mortimer J said, at [204]:
The determinations of course reflect the content of the various native title applications including any area or group limits on those applications, and connection material prepared in support of them … one of the challenges for the Court … is to ensure its reasoning and conclusions are compatible with those previous determinations about native title … unless there is a rational, reasonable and probative basis for a determination which might otherwise be, or appear, incompatible.
The non-claimant application is opposed by NQLC, the second respondent, and the State Minister for the State of Queensland, the first respondent, who, by operation of s 84 of the NTA, is deemed to be a party to this proceeding. NQLC is the active contradictor in these proceedings. It was joined following its interlocutory application dated 18 August 2022, pursuant to s 84(5) of the NTA, by Order of Rares J dated 6 September 2022.
The State has taken an active role in the proceedings to assist the Court, consistent with its role being in the nature of parens patriae, and to facilitate the determination of Mr Harris’ application as a matter of public interest. It urged dismissal of the application.
This proceeding is more than nine years old. The parties are agreed that there is no present claim by any Aboriginal peoples over the Non-claimant Area. It is Mr Harris’ case that these circumstances, together with the series of native title claims in the vicinity of the Non-claimant Area since 1997, which have been either discontinued or amended to exclude any claim over land or waters within the Non-claimant Area, the absence of any evidence of the existence at Effective Sovereignty of a body of laws and customs which give rise to rights and interests in land, the absence of evidence of sufficient connection, and the clear cessation of any connection, establish, on the balance of probabilities, that native title does not exist in the Non-claimant Area.
By contrast, it is the gravamen of the case advanced by NQLC, supported by the State, that through its four lay witnesses and expert anthropologist, it has adduced evidence as to the existence of native title of such weight to cast doubt on Mr Harris’ assertion that ongoing connection, and any substantially uninterrupted observance of traditional laws and customs, was lost at some point after Effective Sovereignty. It contended that, having regard to the totality of the evidence, Mr Harris has not proved, on the balance of probabilities, that no native title exists in the Non-claimant Area. Rather, despite the irrefutable evidence that none of the lay witnesses has maintained any physical connection with the Non-claimant Area, and the undeniably remote and hostile character of the country, NQLC contended the evidence:
(a)points to the continued observance of traditional laws and customs related to the transmission of interests in country through cognatic descent;
(b)shows contemporary connections to country of the countrymen of NQLC’s lay witnesses are primarily based on membership of land holding groups;
(c)justifies a reasonable inference that the contemporary conceptions of traditional law and custom of the countrymen of NQLC’s lay witnesses in respect of the acquisition, enjoyment and transmission of rights in land is an adaptation and evolution of that which prevailed over generations of the past back to the time of Effective Sovereignty; and
(d)demonstrates the existence of a regional society, under which a jural public acknowledges the rightfulness of the assertions of the countrymen of NQLC’s lay witnesses that the Non-claimant Area is their country (albeit that different parts are the country of different land holding groups).
For the reasons that follow, a determination should be made that no native title exists over the land and waters the subject of Mr Harris’ application. In summary, I have been persuaded, on the balance of probabilities, that the evidence led by Mr Harris, including his own testimony and the opinion of the expert anthropologist called on his behalf, that no physical or spiritual connection to the Non-claimant Area has been maintained by any person who is descended from any person who may have held traditional rights and interests in the Non-claimant Area at Effective Sovereignty.
I have reached this conclusion after giving primacy to the evidence of the Aboriginal witnesses called by NQLC. No onus rested on NQLC to disprove Mr Harris’ claim. Nevertheless, having called evidence, the Court was required to weigh its quality against that adduced by Mr Harris. The lay evidence was inadequate to cast sufficient doubt on my conclusion that any of the Aboriginal witnesses had more than an historical connection to Strathmore Station, being the place where one or more of their parents and family members worked over decades and where they had spent roughly the first 10 years of childhood. None was able to give any evidence describing the manner in which they claim to acquire rights and interests in land, nor was anyone of them able to identify even some elements of a body of traditional laws and customs, in any normative sense, which is substantially the same as one that exists today.
More importantly, what evidence was given by the Aboriginal witnesses differed in several respects from some of the critical opinions expressed by the expert anthropologist called by NQLC. This inevitably called into question the certainty with which she expressed her ultimate opinion that, “persisting Native Title rights and interests continue to be asserted and maintained by the descendants of those traditional owners” who “fully owned and occupied the” the subject area at Effective Sovereignty.
The effluxion of time, the loss of connection with family members through forced removals and worse, the diversity of tribes and language groups that existed at Effective Sovereignty, the hostile and inaccessible nature of much of the terrain within the Non-claimant Area, and the obvious compromises and concessions that seem to have been made by Aboriginal people in the Cape York Region in order to achieve the many native title determinations that have been made to date across that region, provide an explanation for the confusion, uncertainty, and contradiction that pervaded much of the evidence in the case. The consequence is that I have been persuaded that native title does not exist in the Non-claimant Area.
THE RELEVANT LEGISLATION
The Court’s power to determine non-claimant applications for native title is found in the NTA. Section 253, somewhat unhelpfully, defines a non-claimant application as “a native title determination application that is not a claimant application”. A claimant application is defined, relevantly, as “a native title determination application that a native title claim group has authorised to be made …”.
The NTA is prescriptive of the Court’s approach to the determination of unopposed claimant and non-claimant applications (s 86G), and for agreed outcomes in respect of (at least) claimant applications (s 87). However, there is a lacuna of specific statutory guidance on the Court’s determination of contested claimant and non-claimant applications: CG (Decd) (Obh of Badimia People) v State of Western Australia [2016] FCAFC 67; 240 FCR 466 at [49]. Key sections of the NTA must, therefore, be read together to devine the applicable legislative regime, noting that there is no distinction between provisions relevant to the determination of claimant and non-claimant applications: Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41 at [38]-[39]; Badimia at [49]. The nature and practical effect of such a fused statutory regime was exemplified by the majority of the Full Court in Badimia, at [60], which bears relevance to the outcome of any claimant or non-claimant application:
… the possibility of a negative determination is inherent within every native title determination application, be it a claimant application or a non-claimant application.
(Emphasis added.)
Section 223(1) of the NTA defines “native title” for the purposes of the NTA. It provides:
Common law rights and interests
(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
Non-claimant applications may be made to the Federal Court under s 13(1) of the NTA, which are heard and determined in its original jurisdictions: s 81. Section 13(1) relevantly states:
Approved determinations of native title
…
(1)An application may be made to the Federal Court …:
(a)for a determination of native title in relation to an area for which there is no approved determination of native title …
…
An approved determination is defined in s 13(3) to mean, relevantly, a determination made on an application under s 13(1). Section 61(1) designates the persons entitled to bring a non-claimant application under s 13(1):
…
(1)A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed …
(2)A person who holds a non - native title interest in relation to the whole of the area in relation to which the determination is sought …
…
(Emphasis in original and added.)
Section 253 relevantly defines the word “interest” to be, in the context of land or waters, “a legal or equitable estate or interest in [those] land or waters”. It is uncontroversial that Mr Harris holds such an interest as lessee over the Non-claimant Area for the purpose of his application. Notice of an application must be given to the Native Title Registrar (s 63), who must then provide notice of that application to a certain class of persons outlined under s 66(3).
For the reason that Mr Harris’ application is opposed, s 94A governs the Court’s approach to a contested determination of native title. That provision requires that an order by which the Court makes a determination of native title must set out details of the matters mentioned in s 225, which states:
Determination of native title
(1)A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
(Emphasis in original.)
The application of s 225 to both claimant and non-claimant applications (or positive and negative determinations of native title, respectively) has been described in the following way by the Full Court in Mace, at [40]:
Section 225 serves two functions. First, it defines what a “determination of native title” is, and does so by the use of the phrase “whether or not native title exists”. Section 225 authorises a determination that native title exists, and it also authorises a determination that native title does not exist. Second, subs (a)-(e) of s 225 then prescribe the mandatory contents of any determination that native title exists.
(Emphasis added.)
Accordingly, reading the relevant provisions together, the NTA authorises the Court to make both a positive determination of native title – which, if made, must also address the matters set out in s 225(1)(a)-(e) – and, relevantly, a negative determination, as sought by Mr Harris in respect of the Non-claimant Area.
THE APPROACH TO A NEGATIVE DETERMINATION
As was submitted by the State, this proceeding is novel to the extent that “it calls for the application of established principles to an unprecedented factual context”, being that a non-claimant applicant grounds his case with positive evidence of the absence of native title, where a respondent has adduced positive evidence as to the existence of native title.
The parties do not disagree as to which authorities establish the principles to be applied in this case. It is as to the interpretation and application of those authorities that there is disagreement.
The most significant point of disagreement is as to what is meant by the phrase “objectively arguable”, as it was used by the Full Court in Mace (at [97]) and what influence it has on the application of the standard of proof in a case where a negative determination is sought. In brief, Mace was concerned with a non-claimant determination that was required by state legislation in Queensland in order to convert leased land to freehold title. The application was referred to a Full Court, sitting in the Court’s original jurisdiction, under s 20(1A) of the Federal Court of Australia Act 1976 (Cth), because the Chief Justice considered that some uncertainty had arisen about the correct approach to be taken in non-claimant applications and so the matter was sufficiently important to be heard by a Full Bench.
In Mace, the Court identified what it considered to be the “clearly established approach” (at [46]) in light of the decisions in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 and Badimia: Mace at [47]-[67]. In summary, that approach is:
(1)The applicant bears the burden of proof, on the balance of probabilities, that no native title exists in the claim area. So too, a respondent who asserts that native title does exists must also prove that contention on the balance of probabilities.
(2)The question whether that burden has been discharged in a particular case must be assessed on the facts of the particular case (Worimi at [58]):
For example, in an urban environment where valid freehold title has been issued by the Crown over the land in issue … [t]here would be no need to go beyond proof of the extinguishing grant. In other instances, there might be an issue as to the nature or extent of the extinguishment of native title rights and interests.
(3)The Court’s assessment depends on:
(a)the particular facts of the case;
(b)the nature of the land and the tenure involved;
(c)the presence or absence of any present or previous native title claims and the nature and content of those claims; and
(d)any particular evidence adduced on behalf of the parties.
(4)The Court does not employ common law presumptions in seeking to account for native title interests (Worimi at [56]), nor speculate as to what native title rights and interests might or might not exist in the land in question (Worimi at [55]):
The approach contended for by Worimi would involve a “roving inquiry” into whether any person, and if so who, held any, and if so what, native title rights and interests in the land and waters at settlement, and chronologically to the time of the application. Such an approach is of the kind expressly rejected by the Full Court in Jango v Northern Territory (2007) 159 FCR 531 (Jango) at [84]. There may be a number of reasons why, at or by a particular time, no native title rights or interests exist in relation to particular land.
(5)It is the probative strength of any particular evidence adduced on behalf of an applicant, and any on behalf of any respondents, direct or indirect, which will be weighed and assessed – resort to maxims such as that in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at 970 cannot, in the context of native title, effect, by the back door, “any alteration to the onus of proof on a non-claimant application”: Mace at [57]. Rather, the “better approach” is for the Court to focus on what is established on the evidence before it, giving appropriate weight to “aspects of the statutory scheme which are designed to have people bring forward all claims to native title over an area”: Mace at [57].
(6)The Court must take account of the gravity of a negative determination, and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NTA (Badimia at [48]):
The fact that a determination of native title binds the world and does not operate only between the parties applies to both positive and negative determinations. This fact warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings. But the onus remains the civil standard of the balance of probabilities. If the circumstances are such that a native title claimant application has not been established to the requisite standard, the onus of proof to support a negative determination may or may not have been discharged. If not discharged, it necessarily follows that a negative determination may not be made. If discharged, however, it does not necessarily follow that a negative determination should be made. The propriety or otherwise of making of a negative determination in such a case will depend on a wide range of circumstances. As noted, the legal character of a determination, that it will bind the world at large and not just the parties, will necessarily inform the appropriate exercise of the discretion whether or not to make a negative determination.
(Emphasis added.)
It was in response to two submissions by the NTSCORP in Mace that the Full Court expressly introduced the notion of evidence of an assertion of native title which is objectively arguable. In short, NTSCORP had submitted first, that to place the obligation on a person to assert native title by making a native title determination application, or join as a respondent to assert native title defensively, required a “leap of faith” as to native title claimants being aware of public notices and having sufficient resources to respond. Secondly, it had been submitted that a notice of a non-claimant application is not enough to satisfy a court that an applicant has proved its case in circumstances where no research or fieldwork has been carried out and there are no details of potential native title holders in the representative body’s database: Mace at [89]-[90]. The Full Court said, at [97]:
Although, as NTSCORP’s submissions contend, it can be accepted that representative bodies face funding challenges, we do not consider that is a satisfactory explanation, in and of itself, in the context of a non-claimant application, for inviting the Court to refuse to make a negative determination. A representative body’s facilitation and assistance functions are no less important in respect of non-claimant applications that they are in respect of claimant applications, since the former determination will preclude any future claims of native title over the land and waters concerned. The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land and waters the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title … To raise an objectively arguable claim of native title sufficient to mean that a non-claimant application needs to go to a full trial, the evidence of native title need not be extensive: it will be the quality of the evidence which is determinative.
(Emphasis added.)
This passage cannot be read as importing a gloss on the “clearly established approach” which, in the previous section of the judgment, the Court had been at pains to articulate, and where no reference was made to “evidence of an assertion” which is “objectively arguable”. The Full Court was, in this section of the judgment, dealing specifically with the role of native title representative bodies in non-claimant applications where there had been no trial. With one immaterial exception, no evidence was adduced in Mace about the existence and nature of any claimed native title rights and interests in the application area. Rather, the Court had proceeded on the basis of a statement of agreed facts. The Court was explaining that, to defeat a negative determination, more than evidence of the “potential” for the assertion of native title was required, and that in such circumstances, representative bodies were best placed to assist.
This case is unlike Mace. In the present case, both lay and expert evidence, which was tested over the course of two weeks, was adduced by the applicant and the second respondent. The Full Court observed that whether a non-claimant application is to be determined under s 86G (unopposed applications), or under s 61 – as in this case – the same kind of matters need to be established by an applicant, the difference being that, in a contested application, there is likely to be a contradictor and, consequently, “the applicant may face more challenges to its own submissions or evidence, or both”: Mace at [43]. The Full Court continued, at [44], qualifying that difference in the determination of contested applications:
[It] is a forensic difference, but not a legal one. The question for the Court remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area?
Nothing said in the passage in Mace at [97] derogates from the principles as articulated by the Court as summarised above. As such, to the extent that Mr Harris’ submissions invited the Court to find that the assertion of native title raised by NQLC was “not objectively arguable”, I reject that statement of the specific task required of the Court in the circumstances of this case.
THE ISSUES IN DISPUTE
The definition of native title or native title rights and interests, as provided for in s 223(1) of the NTA, has already been set out above. For present purposes, Mr Harris asks the Court to determine, pursuant to s 225 of the NTA, that neither exist in relation to the Non-claimant Area. Determinations made under s 225 are in respect of native title as defined in s 223(1). The term “native title” means communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders “in relation to land or waters” where three aspects pertain, being those in (a) to (c). A determination of native title cannot be disaggregated into its component parts. It is not a determination as to each of the three aspects described in (a) to (c) of the definition in s 223(1). As the Full Court stated in McLennan FC at [88]:
Native title is a singular conception of a particular kind of rights and interests which are to be the subject of determinations made under s 225.
In order to succeed in his application for a declaration that native title does not exist in relation to the Non-claimant Area, Mr Harris must discharge the burden of proving, on the balance of probabilities, that there are no communal, group or individual rights and interests of Aboriginal peoples in relation to the Non-claimant Area possessed under the traditional laws acknowledged, and the traditional customs observed, by any Aboriginal peoples, and who by any traditional laws acknowledged, and any traditional customs observed in relation to the Non-claimant Area, have a connection with it.
As has already been referred to, the parties jointly tendered a document (SOFLI) to assist the Court in framing and narrowing the issues at hearing, and to identify the position that each party took on the relevant issues in dispute. Counsel for NQLC submitted that this document should be relied on by the Court as that which contains the full suite of forensic issues to be determined in the proceeding.
The parties agree that Sovereignty was acquired by the British Crown over the Non-claimant Area in 1788 and that Effective Sovereignty occurred in the late 1860s when the first European settlers arrived in the Non-claimant Area. The parties also agree that, as at the date of Effective Sovereignty, there were Aboriginal peoples associated with the Non-claimant Area who formed part of a society which acknowledged and observed a common suite of traditional laws and customs (the normative system) in relation to the transmission of rights and interests in the land and waters, in which totemic patriclans were important.
The parties also agree that, at Effective Sovereignty, there were laws and customs by which Aboriginal people or peoples associated with the Non-claimant Area acquired rights, with totemic patriclans having an important role in the relevant laws and customs.
The legal and factual issues not agreed between the parties, and which form the crux of the dispute the subject of this proceeding, are as follows:
(i)The specific rights and interests that Aboriginal people in the Non-claimant Area hold under traditional laws and customs as acknowledged and observed at the date of Effective Sovereignty.
(ii)The identity of the groups which held primary territorial interests within the Non-claimant Area.
(iii)Who, more probably than not, held rights and interests in the Non-claimant Area under traditional laws and customs of the normative system(s) at Effective Sovereignty, or soon after, relating to land and waters?
(iv)Whether there has been a continuity of observance and acknowledgement of traditional laws and customs in the Non-claimant Area?
(v)Whether contemporary descendants of the Aboriginal people or peoples that held rights and interests in the Non-claimant Area at Effective Sovereignty by their traditional laws and customs, have maintained a connection with the Non-claimant Area?
(vi)Whether the contemporary descendants of Aboriginal people that held rights and interests in the Non-claimant Area at Effective Sovereignty hold native title rights and interests in the Non-claimant Area based on their traditional law and customs?
(vii)Whether there is any native title in the Non-claimant Area?
Overview of lay and expert witnesses
As has already been observed, the parties adduced both lay and expert evidence. Mr Harris gave evidence on his own behalf and filed an affidavit dated 9 May 2022 (Harris Affidavit). NQLC called four Aboriginal witnesses, being Ms Glennis Mudd, Ms Gladys Callope, Ms Bernice Douglas, and Mr Christopher Henry, to give lay evidence about their connection to the Non-claimant Area. Both the applicant and NQLC relied on the evidence of two experts, being Dr Philip A Clarke and Dr Natalie Kwok, respectively, both of whom describe themselves as Consultant Anthropologists. Dr Clarke and Dr Kwok both prepared expert reports, filed respectively on 22 May 2023 and 21 November 2022 (an amended version was filed on 23 November 2022) (Clarke Report and Kwok Report), and – together – a Joint Report filed on 5 February 2024 (Joint Report). NQLC also read each of the Kempton Affidavits, as well as the affidavits of Mr George Lance Druery, dated 18 November 2022, and of Mr Kevin John Murphy, dated 18 August 2022 (Murphy Affidavit), none of whom was required for cross-examination.
The expert evidence
NQLC was critical of the evidence given by Dr Clarke. It submitted that, despite Mr Harris’ having had a period of 5.5 months in which to file his expert evidence, Dr Clarke’s report “provides only a desktop analysis, with Dr Clarke having interviewed no Indigenous witnesses, nor made any apparent attempt to interview such witnesses, nor having undertaken any relevant fieldwork”. This was, it was submitted, in contrast to NQLC having been given only 2.5 months to file its evidence after being joined as a respondent by Order of Rares J on 6 September 2022.
This submission ought not to have been made in such a manner. It is strictly true that relevant Orders were made by Rares J on 9 December 2022 requiring Mr Harris to file and serve any expert report by 31 March 2023 (allowing an initial period of 4 months), which was subsequently extended to 15 May 2023, and then 22 May 2023, by Orders dated 23 February 2023 and 12 May 2023, respectively. It is also true that by Order of 6 September 2022, NQLC was ordered to file and serve its evidence by 18 November 2022, which date was subsequently extended to 22 November 2022 by Order dated 23 November 2022. What that submission neglected to draw attention to, however, was that Dr Kwok had previously been engaged by NQLC, by written agreement on 7 June 2021, to provide a report on substantive matters that were ultimately the subject of Dr Kwok’s expert report prepared for this proceeding. The Terms of Reference agreed between NQLC and Dr Kwok in June 2021 included instructions to:
Conduct desktop research into archival and other secondary sources including but not limited to the materials list below [which included material for the Kowanyama People Part B application (QUD 6119 of 1998), the Kurtijar application (QUD 483 of 2015), the Tagalaka applications (QUD 6109 of 1998 and QUD 6020 of 2001) (including four reports by Dr Sandra Pannell) the Ewamian People applications (QUD of 6220 of 1998, QUD 6009 of 1999 and QUD 6018 of 2001) (including two reports by Dr Pannell), and the Red River application (QUD 6027 of 2002) (including a report by Dr Julie Lahn and Professor Phillip Winn]; conduct interviews by phone, video conferencing and face-to-face with people that assert native title interests in the area; and rely on your research for the NWRA [North-West Research Area].
Dr Kwok says that she was given new instructions in March 2022 to undertake a review of anthropological evidence. I observe, however, that those subsequent instructions were not annexed to the Kwok Report.
By contrast, Dr Clarke was instructed by letter dated 28 February 2023. He was specifically instructed that he was “not expected to undertake any fieldwork in relation to this matter” NQLC submitted that it was assumed “there was underlying evidence forming the basis of the claim being filed” that must have predated these instructions.
For much the same reasons as pertain to my rejection of NQLC’s submission that I should give no weight to Mr Harris’ lay evidence (discussed below), I reject any submission that Dr Clarke’s evidence is diminished because of an implied failure on the part of Mr Harris to commission an expert’s report at some earlier point in time, or to conduct fieldwork in support of an expert report. As discussed below, the submission is somewhat disingenuous in the face of NQLC’s failure to respond to any of Mr Harris’ communications seeking assistance with identifying potential native title claimants, and in circumstances where it had commissioned Dr Kwok to undertake the relevant research in mid-2021 but did not communicate that fact to Mr Harris until it sent its first response to his legal representative in July 2022.
Both Dr Clarke and Dr Kwok relied extensively on the work of other ethnographers, anthropologists and linguists. In particular, there was frequent reference across both expert reports, and the Joint Report, to the work of scholars including Edward Palmer (19th century pastoralist and amateur anthropologist), Dr Walter E Roth (19th century medical officer/surgeon and amateur ethnographer), Robert H Mathews (19th century surveyor and ethnographer), Dr R Lauriston Sharp (early-mid 20th century ethnographer), Norman B Tindale (mid-late 20th century entomologist/ethnologist), Professor Peter Sutton (late 20th century anthropologist, linguist and ethnologist), Dr Sandra Pannell (21st century anthropologist), and Dr Julie Lahn and Professor Phillip Winn (21st century anthropologists) (together, Lahn & Winn). Dr Clarke’s and Dr Kwok’s opinions are based, essentially, on their interpretation of the works of these scholars, including the earlier interpretations of relevant primary sources by those scholars.
My rejection of NQLC’s criticisms above, however, does not necessarily lead to a conclusion that Dr Clarke’s evidence is to be preferred over that of Dr Kwok. Nevertheless, Dr Clarke was a straightforward witness who impressed as being able to draw on his significant academic and professional experience to give considered evidence on the issues about which his opinion had been sought.
To the extent that it was submitted that Dr Kwok’s evidence should be given greater weight because of the fieldwork she had undertaken, it is not possible to draw any general conclusions as to the value of that fieldwork, in light of the following circumstances. First, Dr Kwok conceded that she had never been to the land and waters the subject of the Non-claimant Area. Secondly, of the almost 100 interviews conducted by Dr Kwok, either in person or by telephone, Dr Kwok similarly conceded that the interviews were conducted for the “twin purpose of understanding their interests within the northwest research area as well” as those relevant to the Non-claimant Area. It was not explained, however, what proportion of those interviews were directly relevant to Dr Kwok’s research in relation to the Non-claimant Area. Thirdly, no transcripts of the interviews were in evidence. This makes it impossible to verify any conclusions drawn by Dr Kwok from those interviews. As to Dr Clarke’s explanation for his failure to conduct fieldwork, that explanation was, with respect, obvious and rational. Quite apart from having been instructed not to undertake any in the limited time available to produce his report, Dr Clarke explained that it would be unlikely that Aboriginal people would think it to be in their best interests to speak with an anthropologist who had been engaged by a non-claimant applicant, particularly where that application was actively opposed.
Mr Harris submitted that little weight should be given to Dr Kwok’s opinions contained in her report because she described them as “preliminary” and, in many instances, characterised them as “tentative” or “possible”. It is true that Dr Kwok was engaged to provide a report “providing preliminary opinions” about potential native title interests and that, as such, many of those opinions are not expressed strongly. However, that does not necessarily diminish those opinions, given the nature of the task she was instructed to undertake. It is also true, as Dr Kwok said in cross-examination, and is consistent with the fact that she had been engaged to undertake at least related work since mid-June 2021, that the Kwok Report demonstrates that she had done a significant amount of research in preparing her report. As Dr Kwok observed in cross-examination:
I think that the manifest level of fine-grain research that I’ve conducted leads me in most of the area to feel that I have done a thorough review of the literature and arrived at solidly-formed opinions.
She candidly admitted that she had not been asked to do, nor had she done, a full connection report. Indeed, in the Joint Report, she was at pains to “reiterate the terms of [her] engagement were to prepare a preliminary report”. In cross-examination, Dr Kwok explained that she made this statement because she “didn’t want [her] work to be judged on the basis that [she] was handing up a full connection report, and that’s why [she] provided various qualifications”.
It is clear that Dr Kwok was not asked to provide a full connection report. I also accept that she did not she purport to do so. That, however, does not explain, and – indeed, somewhat contradicts – how she came to be “firmly of the view that … persisting Native Title rights and interest continue to be asserted and maintained by the descendants of [the] traditional owners” at the time of Effective Sovereignty. That conclusion was arrived at despite her findings that, inter alia, there are only “clues” within Palmer’s late 19th century account that support the accuracy of his mapping; that determining those traditional interests on the eastern side of the Non-claimant Area “presents a less certain proposition”; that the territorial boundaries within which group interests exist on the western side were “not certain”; and that the “personal histories of some of the forebears of the present-day community members were complex and somewhat opaque”. Dr Kwok’s ultimate conclusion is also difficult to reconcile with her indications that, in respect of many issues, more research was required: for example, in relation to the potential apical ancestors; Wakaman interests in the eastern periphery; the genealogies of contemporary native title claimants; and the “impacts of new research findings and novel political developments arising from the [Cape York Land Council’s] Native Title work” that “need to be assessed”.
Dr Kwok’s opinions, and in particular her ultimate conclusion, also seemed to be tainted to some extent by her “fundamental thesis” – as she described it in her oral evidence – that all that is required for native title to be established by patrilineal descent is for a person who currently asserts rights and interests in country to be able to trace their lineage back to an apical ancestor, who held rights and interests in that same country at Effective Sovereignty. She went on to add that one “probably [needs] to be recognised by other people in the community as having … that right to country through that line of descent”. Needless to say, Dr Kwok’s views do not accord with the law: Members of the YortaYorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422. Further, no attempt was made to adduce any evidence about whether any of the Aboriginal lay witnesses were recognised by other people in a relevant community as having the appropriate rights and interests within the Non-claimant Area.
For these reasons, in relation to the evidence of both Dr Clarke and Dr Kwok, it has been necessary for me to evaluate carefully their evidence on each relevant issue where it has differed in a material way, including by analysing, as best I can, the source material on which each has claimed to rely. In so doing, I have been conscious of the caveats urged by Mortimer J in Dempsey (on behalf of the Bularnu, Waluwarra and Wangkayujuru People) v State of Queensland (No 2) [2014] FCA 528; 317 ALR 432:
Historical records
[298]Care must always be taken when relying upon historical records in native title cases. In Anglo-Australian culture, greater value has traditionally been placed on written material than on oral accounts: Commonwealth v Yarmirr (2000) 101 FCR 171; 168 ALR 426; [1999] FCA 1668 at [348] (Yarmirr) per Merkel J. Certainly, oral accounts may fill the “silences” in the historical records (see Daniel v Western Australia [2003] FCA 666 at [149] (Daniel) per RD Nicholson J), but they may do more than that. It may be oral accounts which provide the only continuous narrative. Oral accounts may explain or give context to any historical records and, in some cases, may qualify or rebut them.
[299] Courts must also consider whether “the historical record or account of observers at the time, whether trained or untrained, is not invalidated by a particular preconception, bias or prejudice of the author”: Yarmirr at [351]. For example, a former judge of this court, writing extra-judicially, has observed that certain types of genealogical records may be unreliable, such as those kept by missionaries whose observations are framed by their own individual morality. He goes on to warn that:
Courts must be wary of “text positivism”, the notion that, if a written record is constructed as accurately as possible, the author’s role dissolves into that of an honest broker, passing on the substance of things with only the most trivial of transaction costs.
(Gray, Peter R A, “Saying It Like It Is: Oral Traditions, Legal Systems and Records” (1998) 26 Archives and Manuscripts 248, p 259.)
[300] Particular difficulties arise where historical documents are relied upon to counter oral histories. In Shaw v Wolf (1998) 83 FCR 113 at 130–1; 163 ALR 205 at 222, Merkel J noted that:
… the general historical record, particularly when relied upon to discount descent in a particular case, is not complete or reliable in all instances. Consequently, the Court is to exercise caution in acting on any general historical record or account as evidence disproving a version of history or ancestry of a particular respondent based on oral history, particularly if it has some contemporaneous corroboration.
The lay evidence
Each of the lay witnesses gave their evidence in a straightforward manner to the best of their recollections. Some of that evidence, however, related to facts and matters said to have occurred between 50-70 years ago. None of the lay witnesses was pressed on his or her testimony in cross-examination to any serious extent. Nevertheless, it is appropriate that I make the following observations about the Aboriginal lay witnesses.
First, the affidavit evidence of all four Aboriginal witnesses attested to each deponent having been shown a map by Mr Druery of NQLC (or its lawyers, in the case of Ms Douglas). Each of the Aboriginal witnesses (except for Ms Douglas) deposed in their respective affidavits to having been told by Mr Druery that the blue shaded area on the map shows the area of Strathmore Station over which Mr Harris has made his non-claimant application. All four Aboriginal witnesses asserted that they had been told by their parents, grandparents or others of previous generations that some portion of the blue shaded area is their country and that they have indicated in orange the location of various landmarks in support of that assertion.
Secondly, the evidence is silent as to whether any of the witnesses was asked, independently of, or at least, before being shown the already blue-shaded map, what the bounds of his or her country were said to be. The absence of such evidence is significant in light of the oral evidence given by at least two of the Aboriginal witnesses expressing their inability to read maps. In particular, Ms Callope said, “[m]aps, a bit tricky”. Apart from agreeing that she remembered the part of her affidavit where she referred to the Red River as being part of Tagalaka country, Ms Callope did not, in her oral testimony, refer unprompted to the Red River as Tagalaka country. Ms Douglas said similarly, “I don’t know about maps. Don’t know about them things”. When shown the map and asked to comment on the blue-shaded area, Ms Mudd could say only that Sloper Mudd, “really stated the Red River area”. Mr Henry was the only Aboriginal witness who readily appeared to have the ability to read a map.
Thirdly, conscious as I am of the difficulties that may attend persons who may wish to assert a native title claim, both in terms of being aware of public notices and having sufficient resources to pursue a claim, it is fair to observe that at least three of the Aboriginal witnesses were not inexperienced with native title applications. Ms Callope had been (with her niece) one of the applicants in the Tagalaka People Claims in 2012: Owens on behalf of the Tagalaka People v State of Queensland [2012] FCA 1396 (QUD 6109 of 1998 (QCD2012/12) (Tagalaka People Determination) and QUD 6020 of 2001 (Tagalaka People #2 Determination)). She is a Tagalaka native title holder and sat on the board of the TAC for approximately 20 years, until 19 November 2022.
Ms Douglas is also a Tagalaka native title holder and a member of the TAC, although her evidence was that she does not actively participate in its activities or affairs. I infer from the letter of support dated 10 July 2015, sent to Mr Harris by the TAC, that at least Ms Callope, if not also Ms Douglas, as Board members, were and have been aware since the time of that letter, of Mr Harris’ application. Further, Ms Callope deposed to having attended a meeting with Mr Harris, together with her sister, in Croydon, to talk about Strathmore Station in about 2015.
Ms Mudd was an applicant on the Kowanyama People Determination in 2009 (QUD 6119 of 1998; QCD2009/003) and on the Red River claim (QUD 6027 of 2002), which was discontinued a decade ago. Ms Douglas’ sister, Colleen, was also an applicant on that claim.
Fourthly, each of the Aboriginal witnesses have, in the past, spoken with anthropologists, including Dr Kwok, who have recorded their oral histories to greater or lesser degrees (Dr Richard Martin, Supplementary Report for the Kurtijar People Native Title Claimant Application QUD483/2015. Prepared for HWL Ebsworth Lawyers. St Lucia, Queensland: UQ Culture & Heritage Unit (8th February 2019) at [12], [207]-[209] (Martin Report); Lahn & Winn, Kunjen people and the Red River – Inland Staaten River region of SW Cape York, Queensland. Final anthropological report to the North Queensland Land Council (June 2005) 98-99). It is fair to observe that there are inconsistencies in the versions of their histories given across the decades. That is not in the least bit surprising. It is, however, difficult to accept that their evidence on this occasion, based as it is on memories of stories told to them decades ago, is more accurate than that given in years closer to the creation of those memories.
ARE THERE IDENTIFIABLE COMMUNAL, GROUP OR INDIVIDUAL RIGHTS AND INTERESTS POSSESSED UNDER THE TRADITIONAL LAWS AND CUSTOMS?
The experts were agreed that there were laws and customs by which Aboriginal people or peoples associated with the Non-claimant Area acquired rights and interests in the land and waters of the Non-claimant Area. They were also agreed that the totemic patriclans had an important role in the relevant laws and customs. Neither expert, however, was able to explain with any specificity the content of those laws and customs.
Dr Clarke stated that there is insufficient evidence, either ethnographic or lay, to enable a positive conclusion to be drawn about the nature of traditional laws and customs regarding the Non-claimant Area. In particular, he pointed to the absence of evidence as to how rights and interests in land are acquired other than by patrifiliation.
By contrast, Dr Kwok’s opinion was based on her fundamental thesis, as described earlier, that so long as someone is descended from an apical ancestor who had traditional native title rights and interests, they continue to have native title rights and interests.
Neither of those opinions was of assistance and, indeed, both were contradicted in various ways within each of the expert reports.
In seeking to identify the specific rights and interests that Aboriginal people in the Non-claimant Area held under the relevant laws and customs, it is first necessary as a matter of fact to identify the groups who held primary territorial interests within the Non-claimant Area. The experts were also divided on this issue.
The pre-sovereignty land-holding groups
This issue is complicated by the “fragmentary and complex” linguistic and ethnohistoric evidence of the area. Dr Clarke stated that, in native title anthropology, membership of a linguistic group is not recognised as sufficient to establish rights to country, although it provides an indication of the existence of wider societal networks. He said further that the association of a dialect with an area was “an aspect of the landowning group’s identity” and is, to that extent, “relevant to determining native title”, noting that “[f]or Aboriginal people, land therefore has a linguistic identity”. In her oral evidence, Dr Kwok observed that, “[i]n more recent times, language group tribes have become more prominent as the land holding group”. She also noted that, “[t]racing the early history … some of these groups … can be found to be aggregated from groups that were identified with a number of different languages at sovereignty”.
The diversity in the variants of the spellings of local languages and group names complicates an understanding of the linguistic and ethnohistoric sources. In an attempt to mitigate this, I set out below the table of variations prepared by Dr Kwok. Some labels are used interchangeably throughout this judgment, as they are throughout the evidence.
PRESENTLY ADOPTED VARIANT SPELLINGS/NAMES Ewamian Ewamin, (Ak)Waumin, Agwamin, Gwamin Kawararrangg (after Sommer) Ok awarrangg, Kauwaranga, Okaurang, Ogh-Awarrangg, Uw Awarrangk Kok Narr Kok Nar, Kok-Nharr, Gog-Nar, Gug Nar Koko Bera Kok Kaber, Koko Pera, Kokopera Koko Berrin Koko Perrin, Kundara, Kundarra, Kwandarr, Okawn’dar, Kwanthar, KuandaR, Goontharra, Gog-Nar? Gog-Nhang? Koko Dhawa Gogo-Dhawa, Gugu-Dhaw, Kok Thaw, Koko Daua, In.hal Kunjen (wider reference and other sub-groups) Koonjan, Koonjen, Kundjen Kurtjar Kurtijar, Gurtjar, Gunggara Kutjel Kutjel, Cuchulberry, Koochulburra Ogh Undjan (narrower reference, after Sommer) Koka-koonjin, Okundjain, Okun’djain, Ogunyjan, Koonjan, Kunjen, Oogonjin, Ngundjan, Ngundjen, Kund’jan, Gundjun, Koko Kuntjan,
Kundjin, Uw Ingan, WinganOkuntjel Okuntjil Oykangand Aikand, Wangarrah, Koko Wangar, Ew Angkar, Koko Mirandang, Uw Oykangand, Oykangand, Oykangandh, Aikand, Oikand, Koko Wansin,
Koko WanjinRib (after Black) Air-rip, Ariba, A’rap, Arap, Araba, A:rap, Aripa, Ngariba, Areba, Ngarap, Ngarab Tagalak Tagalaka, Dagallagan, Tarkalak, Tagalag, Tagalag, Dagalang, Da:galag, Targalag, Tarkalag, Tagalak, Takalak Wakaman Wagaman, Warkaman, Wakkamon, Warkeeman, Warkeemin, Warkamin,
Warkemon, WarkeemonWalangama Wollongurmee, Wollangama, Wallungarma, Wallankammer, Wallenkammer, Oo-ee-kulla?
O’eer’kala? Kumulmar?
Dr Clarke’s opinion was that, at Effective Sovereignty, the Non-claimant Area was seasonally occupied by members of descent groups or clans from two language groups. The first comprised the Kundjan (Kunjen, Ngundjan, Okundjain), who occupied an area including the northern section of the Non-claimant Area along the Staaten River. The second comprised the Areba (Arebe, Arip, Rib) who had as part of their country the area from just north of the Red River to the south towards Minnie’s Dip. He based this view on the fact that Kunjen and Areba country extended far beyond the Non-claimant Area, along the river system towards the coast, and stated that, “in [his] view it is reasonable to conclude that the area that became Strathmore Station was not their core country, since it was probably only accessible to foragers during certain seasons”. He referred also (at [40]) to Roth’s 1899 sketch map, on which Roth had remarked in respect of the Mitchell River area, “[n]o blacks here permanently”. Dr Clarke said this suggested “more infrequent use of country to at least the immediate north of the Non-[c]laimant Area”. In any event, his view was that there was no data to suggest where the estates of the relevant patriclans were located.
Contrary to the written submissions of the State, this fact was not agreed. Dr Kwok disagreed with the opinion that the Non-claimant Area was only seasonally occupied. In her view, that opinion exhibited a “coastal prejudice”, pointing to the mapping by Palmer of the Dagallan [Tagalak], describing territory that that group occupied as “sandy forest country”. In oral evidence, she also explained that the absence of Aboriginal people in the Mitchell River area, as referred to by Roth, was because they were “being hunted away by the … native police”.
Dr Kwok’s opinion was (and NQLC submitted) that the local patriclan estates within the Non-claimant Area were associated with the language groups known in contemporary terms as Tagalaka, Rib, and Kunjen, more specifically Ogh Undjen. Moreover, it was recruitment to the land-holding patriclan that was the important basis of acquisition of native title rights at Effective Sovereignty rather than membership of a language identifying group.
Ultimately, by distilling the points of common agreement within their respective opinions, it is possible to conclude that both experts appear to be agreed that the Ogh Undjan group (Kundjan, Kunjen, Ngundjan), or at least a section of it, had interests impinging on the north side of the Non-claimant Area at Effective Sovereignty. Both were also agreed that the Arip group [Araba, Areba, Aripa, Rib], or at least a section of it, maintained interests within the bounds of the Non-claimant Area at Effective Sovereignty. The most significant point of departure between Dr Clarke and Dr Kwok, however, at least for the purposes of this application, was whether the Tagalaka people had rights in the Non-claimant Area at Effective Sovereignty.
Tagalaka interests at Effective Sovereignty
Dr Kwok said that the boundaries between the Tagalaka, Rib and Kunjen remain uncertain. She noted however that, “the Red River appears to constitute a point of convergence with Tagalaka interests occupying the eastern and southern portions of the Non-claimant Area, including the upper-most Staaten and country extending between the Einasleigh and Red Rivers”. On the basis of her research and investigations, Dr Kwok provided a schedule of various “[s]ummary conclusions” as to “tentative indications of the interests of various groups” within the Non-claimant Area. As part of that schedule, Dr Kwok (at [238] as amended by the Schedule of Corrections) stated the following in respect of Takalak (Tagalaka) interests:
Takalak interests from south to the Red River. Pre-Sovereignty may have had interests extending northward up the eastern side. Historically described as in occupation of sandy forest country west of the Lynd. Extension up towards junction of Mitchell and Lynd.
I observe, relevantly, that the Non-claimant Area extends beyond the Red River, northwards to the Staaten River, but not eastwards to the Lynd River. Dr Kwok continued:
Arap interests from west, including Pelican, Wyaaba, Cockburn Creeks, Red River, possibly inland stretch of Staaten.
Consistent with the agreement between the experts, part of this area of Arap (Arip) interests is likely within the Non-claimant Area. Dr Kwok further continued:
Ogh Undjan possibly impinging on the application area on the north side. Interests extending from Dunbar at least to Upper Staaten. Tindale has them extending as far south as the Red River.
If the area of Ogh Undjan interests extended as far as the Red River, then it is likely to be partly within the Non-claimant Area, as agreed between the experts. I observe, however, that the area from Dunbar Station south to the Staaten River, is within the area of the Kowanyama People Part B Determination (QUD 6119 of 1998; QCD2012/016). Dr Kwok’s schedule also included the following “[s]ummary conclusions”:
Koko Daua appear to have lain between the Koko Berrin and Ogh Undjan upstream of Galbraith Station. Possibility of having some interests in the north-west.
Kurtjar Some of those within the connection to the subject area, through a language identity grouping which is no longer extant (Rib, possibly Koko Daua?) may presently identify as Kurtjar. The development of more inclusive group identities is a common feature of post-settlement traditional social-political organisation. Some presently distinguish a sub-group of Top Kurtjar which may reflect originally discrete interest.
Koko Berrin Mainly identified as a coastal group but some suggestion they may have been an inland counterpart. Some of those with connection to the subject area, through a language identity grouping which is no longer extant (Rib, possibly Koko Daua?) may presently identify as Koko Berrin.
Wahooboodja (Palmer) possible match for Djapadja (per Sharp) As mapped by Palmer on mid Staaten and neighbouring Dagallagan. Section and moiety names likely a match for Koogobothy. Possible interests. This group has no profile in the literature.
Okenyika/Kokenyig possible alternative (Okundjain) name for Koko Daua. Michell River association though. Moiety and section names suggest match with Koogobathy.
Kutjal I do not support Tindale’s equation of various groups as equivalents under the banner Kutjal. I suggest the group from which the name Kutjal derives from Palmer’s Koogo Kurchal and Dickson’s Cuchulberry, belongs way up the Einasleigh and have territory which crosses over into the Burdekin valley. Excluding these we are left with Okuntjel.
Okuntjel may simply be another word for Takalak. If discrete they may have been absorbed under the broader Kunjun umbrella. There does not appear to be any living memory of a group called Okuntjel or people who identify under that banner.
Wakaman interests are for the most part confined to the east of the Lynd, however, peripheral claims are made on the part of a few individuals.
The Wakaman People #5 Determination (QUD 178 of 2018; QCD2023/008) is located to the north-east of the Lynd River.
Ewamian My reading of the literature does not have this group coming far enough west to have interests in the claim area. If any, on the eastern side. Jim Richards, on behalf of the Ewamian, is claiming a narrow strip on the north side of the Einasleigh across the southern limit of the subject area. Further consultations with Ewamian people warranted.
The Ewamian People #3 Determination is predominantly located to the south-east of the Non-claimant Area.
Dr Kwok relies on the work of “Palmer (1882)” as the “earliest and an arguably reliable source” on the Tagalak. On “Map 4: Palmer 1882”, Dagallagan (equivalent to Tagalaka) is shown as encompassing an area extending south of the junction of Einasleigh and Gilbert Rivers, and northward beyond the Staaten River (see below):
Map 4: Palmer 1882 (Kwok Report at 133)
Dr Kwok cites a letter written by Palmer to A. W. Howitt (a 19th century anthropologist), which had been referred to in the report by Lahn & Winn 2005:28-29. In that letter, Palmer described the Dagallagan as occupying country “west of the Lynd through the sandy forest country across the Lower Staaten River (poor country)”. The “sandy forest country” is depicted on Map 4 above.
Nonetheless, Dr Kwok states (at [531]) that Palmer’s account “has to be treated with a degree of circumspection”, noting that,
[h]e could have been mistaken in parts; have been caught out by the proliferation of disparate names for the same group; or have imported the views of neighbouring groups, which were not entirely reliable. Nevertheless, in my opinion, there are telling clues within his account that show that Palmer was a careful observer, who was alert to the differences in linguistic conventions maintained by different groups and as such I regard his map as extremely important.
As observed by Dr Clarke, Pannell was also cautious about relying on the Palmer map. He referred to Pannell’s connection report for the Tagalaka Determination in which she wrote (in Pannell, Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Draft Connection Report, June 2002, North Queensland Land Council (2002) 89):
It is difficult to establish with any certainty the provenance of the information which forms the basis of Palmer’s map and written descriptions. From Palmer’s letters and his 1884 article, it appears that this information on the distribution of northern tribes derives from his own observations and from a number of Aboriginal informants present on his two properties, Canobie and Gamboola. In one of his 1882 letters (1882b), Palmer identifies “Tippoo” as his informant for “Mycoola” class names. In the same letter, Palmer writes that he will be able to “pick up other facts” when he returns North [presumably to Gamboola station] again (1882b:1). In this letter, Palmer informs Howitt that the sketch map is:
as correct as can be gathered from the blacks themselves … [and that it is] a rough indication of where they lived, hunted and joined each other (1882b:1).
(Footnotes omitted).
I accept that there is a further difficulty with Palmer’s map, in that it does not reference the Rib [Arap, Ariba, Aripa] people. I do not, however, accept Mr Harris’ submission that reference to the Kunjen was also absent. It is at least possible, as accepted by Dr Clarke, that “Oogonjin”, located just below the Mitchell River, “may be a rendering of Kundjan (Kunjen, Ngunjan, Okundjain)”.
In addition to the apparent unreliability of Palmer’s map, Dr Clarke pointed to the inconsistency of the suggested extension of Tagalaka country by Dr Kwok with the work of “Bulleta (1896, 1897)” and Mathews (Copies of Correspondence in the A.P. Elkin Collection, Sydney: University of Sydney (1898-1905)).
Mathews described the existence of the “Goothanto nation”, an aggregate of tribes which he named “after the tribe of that name occupying the country around the junction of the Gilbert and Einasleigh Rivers”. Mathews identified the “most important of the numerous tribes” in the area as: “Goothanto, Ariba [Arab, Rib], Koogobathy [Koogobatha], Goongarra [Gungarra, Kunggara, Kunggare, Kurtjar?], Owoilkulla [Olkolo], Wallungarma [Wollangama], Karantee [Karunti] and Nahwangan”. Dr Clarke points out that Mathews identified the “Koonjan (i.e., Kundjan, Kumjen, Ngundjan, Okundjain etc) as a ‘tribe’ in the ‘country’ watered by the Lower Mitchell, Alice, Coleman, Palmer and other rivers” (Clarke Report at [92]). In 1899, the country “low down on … the ‘Pelican’, ‘Staaten’ and ‘Cockburn’” rivers was identified in correspondence between Mathews and Walter H Cross as being occupied by the “Ariba [Araba, Areba, Aripa, Rib] tribe”. Cross also remarked in 1899, however, that on Strathmore Station, “he was too far inland to see many Aboriginal people, who were mainly along the coast” (Clarke Report at [93]).
Dr Kwok placed some weight on correspondence in 1894 between Sub-inspector Jocelyn Brooke and Howitt. Brooke stated, “[he] [believed] the blacks on the Tate River are called Takalaka, while the blacks at the head of the Mitchell [River] are called Gook-Mene and Gooka Yalanga” (Kwok Report at [66]). I interpolate that the Tate River is a significant distance to the east of the Non-claimant Area, and indeed east of the Lynd River, and that the Mitchell River is located, similarly, a distance to the north of the Non-claimant Area. Dr Kwok cites a later communication from Brooke, in which he wrote, “[t]here is a tribe round Mr Palmer of Gamboola … [t]he tribe is called Takalaka which means a particular kind of sugar bag”. Gamboola Station is at the junction of the Mitchell River and Brown Creek, to the north-east of the Non-claimant Area. The experts were agreed that the name means “[l]ong-nosed [s]ugarbag” of the genus Tetragonula, being a species of native stingless honeybee that occurs across the tropics.
Dr Kwok urges some caution in light of Brooke’s translation of Takalaka as to what kind of grouping it is. She observes that it is “not, apparently, a group name reflecting on a distinctive language” and postulates alternative interpretations for its use. She notes, however, that the section names given by Brooke “more closely [resemble] those of the Kunjen-Olkol than those associated with the (Ak)waumin or Rib” (Kwok Report at [129]).
Dr Clarke also urged caution about the meaning ascribed by Brooke to Takalaka. He referred to Pannell’s speculation that it was perhaps “a generic name used by other Aboriginal people to refer to anyone who lived and hunted in country where this sugar bag was found”. Pannell suggested that were this so, “it could partially explain why the name ‘Takalaka’, or variants of it, is associated with a number of different areas in the literature dating from 1882 - 1974” (Clarke Report at [77]-[78]).
What is apparent from the evidence both of Ms Callope and Ms Douglas is that whatever knowledge they have acquired about the physical characteristics of the Non-claimant Area, most of it was acquired approximately 70 years ago during their excursions with the manager on Strathmore Station (by tractor or truck). It is also tolerably clear that, to the extent that Sloper Mudd is said to have spoken about the Red River, it is likely that this occurred as a result of his work mustering in the Non-claimant Area, rather than in the context of exercising traditional rights in the Non-claimant Area as a Tagalaka person. I also infer that neither Ms Callope nor Ms Douglas considered whether or not they might have any native title rights and interests in the Non-claimant Area until “the lawyers [Legal Officer] from North Queensland Land Council … have showed [them] a map” (Douglas Affidavit at [23]; Callope Affidavit at [17]). This is notwithstanding that Ms Callope was an applicant in the Tagalaka People #2 Determination, which claim overlaps Strathmore Station and abuts the Non-claimant Area, and Ms Douglas is a native title holder pursuant to that Determination. Consequently, I find, on the balance of probabilities, that there are no Tagalaka persons who make an arguable assertion of native title to the Non-claimant Area.
Ms Mudd
Ms Mudd gave evidence that she grew up in Georgetown, which town was considered Ewamian country. Ms Mudd’s evidence of her upbringing was explained in her affidavit as follows:
My mother Ruby Mudd Davis passed away in 1966 and my grandparents grew me up. My grandparents travelled the land, they walked the land all across Staaten River to Croydon and Georgetown. They grew me up in Georgetown. I went to school in Herberton when I was in grade seven, before going to Cairns for business college in 1976. I moved to Kowanyama after business college and worked as an administration officer at the Council there until I was 42 years old, then moved to Normanton in 1999, where I live now.
Ms Mudd’s partner is Bruce Jason Rainbow, who worked at Strathmore station as a stockman, and who identified with the Kurtijar People. Ms Mudd has 4 children (Melanie, Clinton, Yasmin and Bianca); 17 grandchildren; and 5 great grandchildren. Her eldest grandchild is 25 years old and the youngest is 5 years old.
Ms Mudd has not been back to Strathmore Station since she was 12 years old, over 50 years ago.
Ms Mudd said that when she visited her grandparents, uncles and aunties it was near the homestead at Strathmore Station. She said that there were nearby quarters where Aboriginal people would live, that her uncles and aunties lived in those quarters, and her grandfather and grandmother lived on Strathmore Station. Ms Mudd gave evidence that she had heard Sloper Mudd speak in “[p]arts of language”. She also explained that her grandmother “used to speak a lot of … different language”. She would be taught language words by her grandmother “when we were very young” but added “[w]e know a lot of things when they mention it in language” and that “[w]e know what they’re talking about”. She was, however, unable to provide any examples.
In her affidavit, Ms Mudd said that her grandfather’s totem was the catfish and that she follows his totem. In her oral evidence, Ms Mudd asserted that she got her catfish totem from her grandmother. To her, it means “[we are] only allowed to take the little catfish to eat” and “[w]hen we catch a big one, we have to put it back”.
Ms Mudd was able to give evidence that,
[w]hen we went to visit my grandfather out at Strathmore Station we flicked our head with the water and ask them spirits to help us with good luck to catch the fish and turtles. If you do not do that, you won’t catch any fish or find bush tucker.
Ms Mudd said this was a practice done at the water before fishing and described it as “baptising in the country, to get good luck”. She said that she engaged in that practice at Yellow Hole, Minnie’s Dip, the Einasleigh River and the Gilbert River, but also noted that it was done when fishing on anyone’s country. She deposed, as referenced above, that if the practice was not followed “you won’t find any fish or find bush tucker”. She also deposed that “the spirits of our old people will make people sick if someone does the wrong thing on country”. Ms Mudd explained that she was told by Sloper Mudd that “if you touch anything on the country and it’s not yours … you will get sick”.
Ms Mudd did not give any evidence that touched on the transmission of rights and interests in land. Beyond her reference to “baptising in the country”, which she said is done wherever she fishes, Ms Mudd gave no evidence of observing any customs or rituals taught to her by any of “her old people”. Nor did Ms Mudd give any evidence that she has passed any of her knowledge of the laws and customs related to the Non-claimant Area on to her own children or grandchildren. As with Ms Callope, I observe that none gave evidence.
I am satisfied, on the balance of probabilities, that Ms Mudd has not maintained any connection, either physical or spiritual, with the Non-claimant Area sufficient to ground an arguable assertion of native title to the Non-claimant Area.
Mr Henry
As has already been observed, Mr Henry was born in Kowanyama and said that he lived there “for a lot of [his] life”. He said that his father and his sister, Beverley George, worked on Strathmore Station for a number of years – in particular, “[her] father did station work for many, many years”.
Mr Henry gave evidence of his knowledge of totems and spirit beings in the broad region and of his observation of and participation in ceremony across the region. In particular, he said he recalled the location of a “large permanent waterhole near the junction of Pelican Creek and the Red River”, which he marked in yellow on Exhibit 24. This is the same area referred to by Dr Kwok as “Pelican Waterhole”, which was identified to her by Billy Thomas (a Wakaman person) as situated to the north-east of the Strathmore lease outside the Non-claimant Area.
Nevertheless, Mr Henry explained “[t]his area [was] … where … all the old people used to do … the dance of the … dingo story, that ceremony”. He stated that was “the only [thing] they were using it for” and “[n]othing else”. When asked which people would do the dingo dance, he said “my tribe of families … [who] came from all different … just to come to do the ceremony and sharing the knowledge … trade too as well”. He explained the dingo dance was not the dance for that area, but it was “just to celebrate for the people … [a]ll from everywhere just come down there, just trade things … [w]hat they got, … they trade to us … [a]nd then do the dance there”. He said he did not see those old people do the dance, because those “old people [were] already gone”, but that his “dad told [him] all that stuff”. When asked whether there was a story behind the dingo dance, he explained:
[J]ust that it’s about that – the white ochre in that area that they use ceremony when the time is right when they – the message stickman goes to the place to let someone know that there’s going to be a big ceremony in Mount Isa or Normanton and they will – they will walk a couple of months early to get to that area.
Mr Henry noted that his dad taught him the dance for the old dingo, and that he himself had taught his grandsons “everything now”.
Mr Henry also gave evidence about the “black cockatoo” dance. Relevantly, he said:
Just the black cockatoo dance that – to let everyone know that don’t burn out someone else’s country because of the fire will – will spread and the – the – it was a – it was noticed that the – let someone know that there is a fire coming, so we didn’t want the all – all Australia to get burnt down. So it was two burn in the year and then that’s was the dance we done of the – of the firewood, of the burn up the night.
He confirmed that he had last seen the dance performed when he was in Normanton. That performance was described as “the second and the last” time it was performed, and he noted they had “done the dance from the Norman River all the way to the cemetery” but “no more after that”. He has never seen the dance performed again.
When asked the story behind the dance, he said:
Well, the story was that it was a woman dance story to look after the Country from the woman side of respect of the Red River. And all around it in that area, all right up in this gulf area. … This – which is – if it’s just amazed that we all the people that came together and want to what share the message they’re going to leave who – doesn’t matter who. But apart from knowledge from my dad told me that – that – okay. Well, I thought I never going to get to the state where I am now. I mean, I could have came here a bit earlier in the year when I were young. But I was still young and free and I – now, I’m 63 and I said … in my heart – this crying out what I’m just telling you. It’s just would happen back then I – it could tell the whole story. And I – I was the last son of him and I had to do something that – yes. Doesn’t matter what it is. I mean, I will be still going out there whoever owns the place. I would love to go back – see that country just one more time.
When asked to clarify which country he was referring to when he said he would love to go back and see his country again, he said “[r]ight … [o]n the Red River” and “[r]ight back to Staaten – right down to the … mouth of the river”. Mr Henry was asked which groups perform the black cockatoo dance. He answered that it was his tribal group, “[his] Kundjen, [his] Kokoberrin”.
Mr Henry also gave evidence about the “red belly black snake” dance, saying “[i]t has to be done in that Red River area” and that his grandfather, Robert Mission, had taught him the dance.
Mr Henry said that he had taught the things his dad had told him to his kids, explaining,
Yes, now, I sit down every time I tell them story and I said “one day we will go out to the country, sit down” – doesn’t matter who.
He explained that "[y]ou dance to protect the story”:
Look, protecting – to keep the – keeping the wisdom of the – to taught our young ones. Like, when I were young. And then I want to pass it down to my next generation. To the next generation. And just keep on going. Just live side by side.
He said he had taught the red belly black snake dance to his kids, and that it was okay for anyone to perform that dance: “doesn’t matter black or white … if you’re living in Australia, … we … would come together as one, I can say”.
Mr Henry said he remembered his father talking about the scrub turkey, which stayed “up in the forest country”. He explained “[i]t is a [mens’] spirit living up in forest country”. In oral evidence, Mr Henry said “it was a dance”. He gave contradictory evidence about whether there was forest country on his country; first answering “[n]o”, and then later saying, “[s]hould be up the top-end there. Yes”.
He also deposed to there being “lightning people” who look out for people who do right or wrong and who could be found on the Red River. He explained that “Ben Woomera and Elsie were the right people to do ceremony for the lightning people”. It seems that Ben and Elsie’s son is listed as an apical ancestor in respect of the Ewamian People #3 Determination.
Mr Henry gave evidence about the practice of smoking “to let the old people know we were there”. He explained that he was taught about the ironwood tree, and said:
Yes. Number 1, we agreed people to come to – to Country. What we do, we do the smoking. This – the wood that – the tree that we burnt, the smoke, we use the ironwood tree. It’s a solid wood. And it’s a special tree. There’s only one tree in the world that we use at all times. When a – and a loved one passed away, we still use the same ceremony to respect the family.
…
[I]t’s really a tree that we use as a ceremony. We make the woomera to throw the spear and we use that for – for digging holes and everything. Hunting. It’s a special tree that we use at all times.
He also gave evidence of the practice of “[putting] mud all over someone and a cup of water from [the country] so that the person would not get lost out there [on country]”. He said:
I’ve been taught from my – my dad’s grandfather’s side. It showed me the – the – the wisdom of – of looking after Country and how to look for people that are lost out there. And even if – even if they’re alive or dead, they will – I will still go and find them and spiritually connect in world. Yes. And I been – experience it all, and I – that’s what I been doing.
Despite Mr Henry’s knowledge of a range of cultural practices, stories, and traditions, none of his evidence centres those practices, stories and traditions within the Non-claimant Area. His evidence that the large area he circled in orange on the map (Exhibit 24) as being his “dad’s father’s country” cannot be reconciled with the ethnohistoric evidence, nor with the Kurtjar People Determination and Ewamian People #2 (QUD 6009 of 1999; QCD2013/006) and #3 Determinations and his acceptance of the native title rights consequently determined. His evidence about the Pelican Creek waterhole is, at best, equivocal.
Further, Mr Henry has been unable to evidence continuity in terms of ritual and ceremony related to country, let alone related specifically to the Non-claimant Area. Indeed, he denied that the old dingo dance and the black cockatoo dance he was teaching his children and grandchildren was “for the area” – rather, he said they were “just to celebrate for the people”.
I have formed the view that Mr Henry has and maintains a strong cultural connection to the broad area of the South-West Cape York Region. That connection is not, however, specific to the Non-claimant Area. In particular, he identifies with his father’s people as Koko Berrin, and it is contrary to the weight of the evidence that Koko Berrin people laid claim to the Non-claimant Area. Further, to the extent that he recalls his visit with his father to the relevant proximate country when he was thirteen years of age, those memories are distant, non-specific to any landmarks within the Non-claimant Area, and do not provide any evidence of laws or customs specific to the Non-claimant Area. Beyond his evidence in relation to Mr Harris’ application that, “[m]y old people were in that country. I should have been asked first”, Mr Henry did not give any evidence at all about any laws or customs related to the transmission of rights and interests in land from his said “old people”.
Mr Henry’s evidence that “we still go and spend time on country to sing and dance, keep the culture going” is at odds with his evidence that has not visited the Non-claimant Area, nor the area he visited with his father, since he was 13. Further, his statements that “I would love to go back out to Strathmore”, that he “couldn’t go back without [his] father because he was [his] leader for those places” and“[e]ven if he is not around, I can still talk for that country…”, are difficult to reconcile with NQLC’s submission that Mr Henry inherited rights to country through cognatic descent.
The evidence adduced by NQLC is not persuasive in establishing, as was described by Beaumont and Von Doussa JJ in State of Western Australia v Ward [2000] FCA 191; 99 FCR 316 at [243], as the indicia of continuing connection in the non-physical sense, being that,
traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.
DISPOSITION
Mr Harris adduced positive evidence of the absence of native title in the Non-claimant Area. That evidence took the form of his own testimony as to the absence, over nearly two decades past, of any Aboriginal person having sought access to the Non-claimant Area, of any Aboriginal person who has worked on Strathmore Station having claimed to have native title rights or interests in the Non-claimant Area, and of encountering any Aboriginal person, other than his employees, in what is the remote and inaccessible terrain of the Non-claimant Area.
His testimony is supported by the absence of any present claim by any peoples over the Non-claimant Area, despite this proceeding having commenced in 2015 and by the only other unresolved claim in relation to land which partially overlaps the Non-claimant Area, having been discontinued in 2004. As to this, I give weight to those aspects of the statutory scheme established under the NTA which are designed to have people bring forward all claims to native title over an area: Mace at [57].
Further support for Mr Harris’ assertion of an absence of native title in the Non-claimant Area is found in the expert evidence provided by Dr Clarke, who was called by Mr Harris and also, in some respects, by Dr Kwok, who was called by NQLC.
NQLC submitted that the evidence of its four Aboriginal witnesses, together with the expert evidence provided by Dr Kwok, was of such weight as to cast doubt on Mr Harris’ assertion that ongoing connection, and the substantially uninterrupted observance of traditional laws and customs, was lost in relation to the Non-claimant Area at some point in time subsequent to Effective Sovereignty. In support of that submission, the State submitted the evidence adduced by NQLC amounts to an assertion of native title, underpinned by evidence of witness’ historical presence on the land and waters of the Non-claimant Area and transmission to them of cultural knowledge of the boundaries of country, its avoidance places and site-specific stories, sufficient to raise an issue as to the existence of native title.
For the reasons I have given, contrary to the submissions of NQLC and the State, and having regard to the whole of the evidence, the evidence adduced by NQLC as to the existence of native title does not cast sufficient doubt on Mr Harris’ assertion of an absence of native title in the Non-claimant Area.
I am persuaded, that:
1.at Effective Sovereignty, Aboriginal people acknowledged and observed traditional laws and customs relating to an individual’s rights and interests in land in the Non-claimant Area which, more probably than not, were acquired by membership of a totemic patriclan, including in the form of a spirit child; were held in common ownership; conferred a right to occupy, hunt, and gather; conferred a right of refusal to a trespasser who was not an accredited messenger or herald; conferred a right to require permission or consent to be obtained by someone of a different tribe; and could not be extinguished once a person’s relationship to the land had been publicly recognised; and
2.the identity of the groups which held primary territorial interests within the Non-claimant Area was, more probably than not, the Kunjen and the Arib.
I am, however, not persuaded that:
1.it is possible to identify who, as an apical ancestor, more probably than not, held rights and interests in the Non-claimant Area at Effective Sovereignty;
2.it is therefore possible to identify contemporary descendants of the Aboriginal people or peoples who, more probably than not, held rights and interests in the Non-claimant Area at Effective Sovereignty;
3.on the balance of probabilities, there are any contemporary descendants of the Aboriginal people or peoples who, more probably than not, held rights and interests in the Non-claimant Area at Effective Sovereignty, and who have maintained a connection with the Non-claimant Area;
4.on the balance of probabilities, there has been a continuity of observance and acknowledgment of traditional laws and customs in the Non-claimant Area;
5.on the balance of probabilities, any contemporary Aboriginal people hold rights and interests in the Non-claimant Area based on their traditional law and customs.
I therefore find that there is no native title in the Non-claimant Area.
I certify that the preceding three hundred and twelve (312) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington. Associate:
Dated: 13 September 2024
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