Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5)
[2021] FCA 1639
•23 December 2021
FEDERAL COURT OF AUSTRALIA
Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) [2021] FCA 1639
File number: QUD 25 of 2019 Judgment of: REEVES J Date of judgment: 23 December 2021 Catchwords: ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – native title – two partially overlapping applications for native title – whether native title exists in relation to the land and waters of the claim area – separate questions posed in each of the claims answered in the negative – whether the persons who inhabited the claim area at the time of effective sovereignty were members of one or more societies – what was the relevant society or societies – what was the content and nature of the communal or group rights and interests in land and waters that were conferred under the normative body of laws and customs of the relevant pre-sovereignty society or societies upon groups within that society or societies – what was the nature and content of any spiritual beliefs of the relevant pre-sovereignty society or societies insofar as those beliefs related to rights and obligations in relation to the land and waters of the claim area – what kind of rights holding groups held rights and interests in relation to the land and waters of the claim area under the laws of the relevant pre-sovereignty society – what was the ambit of the estates of the rights holding group or groups within the claim area – whether it is necessary to demonstrate the ambit of those estates – what language or languages were associated with the rights holding groups or their estates – what was the content of the rules relating to membership of the rights holding groups – whether use may be made of the findings or evidence in other native title determinations – where an applicant’s lay Aboriginal witness evidence was generally recent in origin, inconsistent and lacking in detail on critical evidence – where lesser weight was to be afforded to the opinions of an applicant’s expert witnesses – where an applicant failed to establish that the ancestors of its members comprised a society at effective sovereignty which acknowledged and observed traditional laws and customs giving rise to rights and interests in the land and waters of the claim area – where an applicant would have failed to establish that its current claim group constituted a normative society that is united in and by a body of traditional laws and customs the acknowledgement and observance of which could give rise to such rights and interests – where an applicant failed to adduce lay Aboriginal evidence which is representative of the claim group or of the relevant group of Aboriginal people such as to establish that, as a group, it continued to acknowledge or observe traditional laws and customs from which rights and interests in the claim area were derived – where an applicant failed to establish that any rights holding group within its society at effective sovereignty held rights and interests in any defined part of the claim area under traditional laws and customs of that society Legislation: Aboriginal Cultural Heritage Act 2003 (Qld)
Aboriginal Land Act 1991 (Qld)
Aboriginal Relics Preservation Act 1967 (Qld)
Aboriginals Protection and Restriction of Sale of Opium Act 1897 (Qld)
Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)
Acts Interpretation Act 1901 (Cth)
Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld)
Evidence Act 1995 (Cth)
Native Title Act 1993 (Cth)
Torres Strait Islander Land Act 1991 (Qld)
Unoccupied Crown Lands Occupation Act 1860 (Qld)
Cases cited: Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 30 (31 March 2013)
Adani Mining Pty Ltd/ Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/ State of Queensland [2013] NNTTA 52 (7 May 2013)
Adani Mining Pty Ltd and Another v Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People [2015] NNTTA 16 (08 April 2015)
Akiba v Queensland (No 3) (2010) 204 FCR 1; [2010] FCA 643
Anderson on behalf of the Wulli Wulli People v State of Queensland (No 3) [2015] FCA 821
Anikin v Sierra (2004) 79 ALJR 452; [2004] HCA 64
Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625
Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15
Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308
Australian Executor Trustees (SA) Limited v Kerr [2021] NSWCA 5
Ballantyne v. Mackinnon (1896) 65 L.J.Q.B. 616
Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868
Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63
Bowles -v- The State of Western Australia [2011] WASCA 191
Briginshaw v Briginshaw (1938) 60 CLR 336
Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267
Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271
Burragubba v Minister for Natural Resources and Mines [2016] QSC 273
Burragubba v Minister for Natural Resources and Mines [2017] QSC 265
Burragubba & Ors v Minister for Natural Resources and Mines [2017] QCA 179
Burragubba v State of Queensland [2016] FCA 984
Burragubba v State of Queensland (2017) 254 FCR 175; [2017] FCAFC 133
CG (Deceased) on behalf of the Badimia People v State of Western Australia (Badimia) [2015] FCA 204
Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 335; [2019] FCAFC 112
Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629
Coles-Smith v Smith [1965] Qd R 494
Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (2015) 325 ALR 213; [2015] FCA 9
Daniel v State of Western Australia [2000] FCA 858
Daniel v State of Western Australia [2003] FCA 666
Dale v Moses [2007] FCAFC 82
Dale v Western Australia (2011) 191 FCR 521; [2011] FCAFC 46
Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) (2014) 317 ALR 432; [2014] FCA 528
De Rose v State of South Australia [2002] FCA 1342
De Rose v State of South Australia (2003) 133 FCR 325; [2003] FCAFC 286
De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110
Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496
Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510
Drury v Western Australia (2020) 276 FCR 203; [2020] FCAFC 69
Evans on behalf of the Yarla-Gu Bunna Nangatjara People v State of Western Australia [2021] FCA 1382
Fortescue Metals Group v Warrie (2019) 273 FCR 350; [2019] FCAFC 177
G v H (1994) 181 CLR 387
Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430
Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232; [2008] HCA 20
Griffiths v Northern Territory (2006) 165 FCR 300; [2006] FCA 903
Griffiths v Northern Territory (2007) 165 FCR 381; [2007] FCAFC 178
Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430
Gudjala People No 2 v Native Title Registrar (2008) 171 FCR 317; [2008] FCAFC 157
Gumana v Northern Territory of Australia (2005) 141 FCR 457; [2005] FCA 50
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31
Henderson v State of Queensland (2014) 255 CLR 1; [2014] HCA 52
Holloway v McFeeters (1956) 94 CLR 470
Jackson v Lithgow City Council [2008] Aust Torts Reports ¶81-981; [2008] NSWCA 312
Jackson v Lithgow City Council [2010] NSWCA 136
Jango v Northern Territory (2006) 152 FCR 150; [2006] FCA 318
Jones v Dunkel (1959) 101 CLR 298
Kemppi v Adani Mining Pty Ltd [2017] FCA 715
Kemppi v Adani Mining Pty Ltd (No 2) [2017] FCA 1086
Kemppi v Adani Mining Pty Ltd (No 3) (2018) 355 ALR 553; [2018] FCA 40
Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 105
Kemppi v Adani Mining Pty Ltd (No 5) [2018] FCA 2104
Kemppi v Adani Mining Pty Ltd [2019] FCAFC 94
Kemppi v Adani Mining Pty Ltd (No 2) (2019) 271 FCR 423; [2019] FCAFC 117
Kokatha People v State of South Australia [2007] FCA 1057
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16
Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899
Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736
Left Bank Investments Pty Ltd v Ngunya Jarjum Aboriginal Corporation [2020] NSWCA 144
Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
Love v The Commonwealth of Australia (2020) 270 CLR 152; [2020] HCA 3
Mabo v State of Queensland (No 2) (1992) 175 CLR 1
McLennan on behalf of the Jangga People v State of Queensland [2012] FCA 1082
Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115
Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 2) [2019] FCA 2211
Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 3) [2020] FCA 401
Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 4) [2020] FCA 1046
McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v State of South Australia [2020] FCA 1875
Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367
Manly Council v Byrne [2004] NSWCA 123
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244; [2001] FCA 45
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58
Milirrpum v Nabalco Pty. Ltd. [1971] 17 FLR 141
Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271
Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78
Murphy on behalf of the Jinibara People v State of Queensland [2012] FCA 1285
Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752
Myers v The Queen [2016] AC 314; [2015] UKPC 40
Narrier v State of Western Australia [2016] FCA 1519
Neowarra v State of Western Australia [2003] FCA 1402
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135
Northern Territory of Australia v Griffiths and Jones on behalf of the Ngaliwurru and Nungali Peoples (2019) 269 CLR 1; [2019] HCA 7
Pegler on behalf of the Widi People of the Nebo Estate #2 v State of Queensland (No 3) [2016] FCA 1272
Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland (No 2) [2019] FCA 1159
Prior on behalf of the Juru (Cape Upstart) People (No. 2) v State of Queensland [2011] FCA 819
Quall v Northern Territory (2009) 180 FCR 528; [2009] FCAFC 157
Re Lawrence; Ex parte Burns (1985) 9 FCR 9
Risk v Northern Territory of Australia [2006] FCA 404
Risk (on behalf of the Larrakia People) v Northern Territory (No NTD 5 of 2006) (2007) 240 ALR 75; [2007] FCAFC 46
Sampi on behalf of the Bardi and Jawi People v State of Western Australia (2010) 266 ALR 537; [2010] FCAFC 26
Sampi v State of Western Australia [2005] FCA 777
Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728
Starkey v South Australia (2018) 261 FCR 183; [2018] FCAFC 36
State of Queensland v Congoo (2015) 256 CLR 239; [2015] HCA 17
State of Western Australia v Graham (on behalf of the Ngadju People) (2013) 305 ALR 452; [2013] FCAFC 143
State of Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539; [2004] FCA 472
The Lardil Peoples v State of Queensland [2004] FCA 298
TheWik Peoples v The State of Queensland (1994) 49 FCR 1
Wall v The King; Ex parte King Won (No 1) (1927) 39 CLR 245
Wallace (on behalf of the Boonthamurra People) v Queensland (2014) 313 ALR 138; [2014] FCA 901
Ward (on behalf of the Miriuwung and Gajerrong People) v State of Western Australia (1998) 159 ALR 483
Western Australia v Sebastian (2008) 173 FCR 1, [2008] FCAFC 65
Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191
Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992
Widjabul Wia-Bal v Attorney-General (NSW) (2020) 274 FCR 577; [2020] FCAFC 34
Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229
Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777
Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533
Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 1237 Date of last submissions: 28 May 2021 Date of hearing: 2-6, 9-13 and 16 December 2019; 10-14 February 2020; 2-4, 7-11 and 14-17 December 2020; 1-5 February 2021; 25-26 and 29 March 2021; and 20-23 April 2021 The separate questions trial Counsel for the Clermont-Belyando Area Native Title Claim Group: R Webb QC with A Preston and J Creamer Solicitor for the Clermont-Belyando Area Native Title Claim Group: Queensland South Native Title Services Counsel for the Jangga People: G Carter Solicitor for the Jangga People: Dillon Bowers Lawyers Counsel for the State of Queensland: S Lloyd SC with J Brien Solicitor for the State of Queensland: Crown Solicitor’s Office ORDERS
QUD 25 of 2019 BETWEEN: PATRICK MALONE, IRENE SIMPSON, LYNDELL TURBANE, PRISCILLA GYEMORE, GREGORY DUNROBIN, ELIZABETH MCAVOY, NORMAN JOHNSON JNR AND IDA BLIGH ON BEHALF OF THE CLERMONT-BELYANDO AREA NATIVE TITLE CLAIM
Applicant
AND: STATE OF QUEENSLAND
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
BARCALDINE REGIONAL COUNCIL (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
REEVES J
DATE OF ORDER:
23 DECEMBER 2021
THE COURT ORDERS THAT:
1.The separate questions stated be answered as follows:
But for any question of extinguishment of native title:
a)Does native title exist in relation to any and what land and waters of the claim area?
b)In relation to that part of the claim area where the answer to (a) above is in the affirmative:
i.Who are the persons, or each group of persons, holding the common or group rights comprising native title?
ii.What is the nature and extent of the native title rights and interests?
Answer
a)no;
b)not applicable.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 296 of 2020 BETWEEN: COLIN MCLENNAN, MARIE WALLACE, LESLIE MCLENNAN, REBECCA BUDBY AND JUSTIN POWER ON BEHALF OF THE JANGGA PEOPLE #3
Applicant
AND: STATE OF QUEENSLAND
First Respondent
SUZANNE ENID THOMPSON
Second Respondent
JOABEN CHARLES JEFFREY THOMPSON (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
REEVES J
DATE OF ORDER:
23 DECEMBER 2021
THE COURT ORDERS THAT:
1.The separate questions stated be answered as follows:
But for any question of extinguishment of native title:
a) Does native title exist in relation to any and what land and waters of the claim area?
b)In relation to that part of the claim area where the answer to (a) above is in the affirmative:
i.Who are the persons, or each group of persons, holding the common or group rights comprising native title?
ii.What is the nature and extent of the native title rights and interests?
Answer
a)no;
b)not applicable.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION
In September 2019 the authorised applicant of the Clermont-Belyando claim group (the CB claim group) filed an amended native title determination application under s 13 of the Native Title Act 1993 (Cth) (the NTA) over a large area of land and waters (approximately 30,200 square kilometres) in Central Queensland. That claim was the final iteration of a claim that was originally filed with the Court in 2004 on behalf of a claim group calling itself the Wangan and Jagalingou People.
As the name of the present claim group implies, the claim area surrounds the town of Clermont in Central Queensland, particularly to its south, west and north. The other component of the claim group’s name refers to the Belyando River. It rises in the Drummond Range just north of the southern boundary of the claim area and flows through its western side more than 200 kilometres in a broadly northerly direction. It eventually joins with the Suttor River about 70 kilometres north of the northern boundary of the claim area. These distances may serve to indicate why the Belyando River is said to be one of the longest watercourses in Queensland.
On 21 July 2017, the following separate questions were stated in respect of the then extant Wangan/Jagalingou claim:
Pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth), the following questions be decided separately from and before any other questions in the proceedings:
“But for any question of extinguishment of native title:
a)Does native title exist in relation to any and what land and waters of the claim area?
b)In relation to that part of the claim area where the answer to (a) above is in the affirmative:
i.Who are the persons, or each group of persons, holding the common or group rights comprising native title?
ii.What is the nature and extent of the native title rights and interests?”
(Italics in original)
After a number of adjournments, the trial of these separate questions began at Clermont in early December 2019. Shortly thereafter a separate group of people claiming to be from the Clermont-Belyando area filed a native title determination application which entirely overlapped the CB claim area (the CB#2 claim). As required by s 67 of the NTA, orders were made for that claim to be heard concurrently with the CB claim. That trial continued in December 2019 and recommenced in early February 2020. It was then to be continued in April 2020, but that was prevented by the onset of the Corona Virus Disease 2019 (COVID-19) pandemic. In late September 2020, before the trial had resumed, the authorised applicant of the Jangga people filed a native title determination application which overlapped the northern half, approximately, of the CB claim area (the J#3 claim). At about the same time, the CB#2 claim was discontinued.
On 9 October 2020, again as required by s 67 of the NTA, orders were made for the two remaining claims to be heard together: the original CB claim and the J#3 claim. As a part of those orders, the J#3 claim area was divided into two Parts: A and B. Part A comprised that part of the claim which overlapped a portion of the CB claim area, as shown on the map annexed to these reasons (Schedule A). As well, those orders stated substantially identical separate questions to those above with respect to that area (the CB/J#3 claim area). Part B of the J#3 claim lies to the west of the CB/J#3 claim area and is not affected by this judgment. The separate questions in the CB claim are still to be answered with respect to the whole of that claim area (the CB claim area). However, henceforth in these reasons, unless greater specificity is required, I will generally refer to the area of land and waters affected by this judgment as simply “the claim area”.
The trial of the two sets of separate questions mentioned above proceeded in December 2020 and was concluded in late April 2021. This judgment provides answers to those two sets of separate questions. For the reasons that follow, the answers are:
In the CB claim:
(a)No;
(b)Not applicable.
In the J#3 claim:
(a)No;
(b)Not applicable.
THE STRUCTURE OF THESE REASONS
Including the introductory section above, these reasons are structured as follows:
INTRODUCTION
[1]
THE STRUCTURE OF THESE REASONS
[7]
A. THE FACTUAL BACKGROUND
[8]
(1) Sovereignty
[8]
(2) Effective sovereignty
[9]
(3) The early European explorers – several encounters with Aboriginal people
[11]
(4) The pastoral and mining influx – 1850s to 1860s
[31]
(5) The reverberating violence which ensued – from the 1860s
[42]
(6) The “letting in” period which followed
[48]
(7) The resultant declines in and migration within the Aboriginal population
[53]
(8) Controls and removals – the late 19th and early 20th centuries
[58]
(9) Aboriginal employees in the cattle industry 1900 to 1970
[67]
(10) From the end of the Protection Act regime to the present
[70]
(11) The 19th century ethnographers and their sources
[74]
James P. Beuzeville (about 1860)
[75]
Robert Christison (1860s)
[76]
William Chatfield (1875, 1877)
[77]
Alfred W. Howitt (1884a, 1884b, 1889, 1904)
[78]
Edward M. Curr and his correspondents (1886-87)
[79]
(12) The 20th century ethnographers
[81]
Caroline Tennant-Kelly (1923-32)
[81]
Daniel S. Davidson (1938a, 1938b)
[82]
Norman B. Tindale
[83]
(13) The history of the Wangan/Jagalingou and the CB claim
[84]
(14) The procedural histories of the CB#2 claim and the J#3 claim
[130]
The CB#2 claim
[131]
The J#3 claim and related claims
[134]
B. THE RELEVANT LEGAL PRINCIPLES
[138]
Some basic principles
[138]
Some evidentiary matters
[173]
Lay Aboriginal evidence and anthropological and other expert evidence
[195]
The use that may be made of other native title determinations, including the J#1 determination – Issue 22
[231]
C. THE HEARING AND THE EVIDENCE
[270]
(1) The initial hearing of the CB claim separate questions
[270]
(2) The concurrent hearing of the CB and CB#2 claims’ separate questions
[273]
(3) Significant changes are made to the CB claim and the J#3 claim is filed
[281]
(4) The concurrent hearing of the CB and J#3 separate questions
[292]
(5) The CB applicant’s lay evidence
[295]
(a) Elizabeth McAvoy
[297]
(b) Kelvin Dunrobin
[334]
(c) Ada Simpson
[350]
(d) Jonathon Malone
[370]
(e) Norman Johnson Jnr
[402]
(f) Coedie McAvoy
[423]
(g) Irene Simpson
[445]
(h) Cynthia Button
[469]
(i) Lesley Williams
[486]
(j) Lester Barnard
[501]
(k) Tammy Williams
[528]
(l) Patrick Malone
[540]
(m) Linda Bobongie
[562]
(n) Brett McDonald
[577]
(o) Delia Kemppi
[585]
(p) Cyril Fisher
[603]
(6) The J#3 applicant’s oral lay evidence
[615]
(a) Colin McLennan
[615]
(b) Leslie McLennan
[661]
(c) Marie Wallace
[672]
(d) Colleen Power
[688]
(7) The State’s lay evidence
[705]
(a) Leslie Tilley
[706]
(b) Priscilla Gyemore
[717]
(8) The CB applicant’s expert evidence
[727]
(a) Mr Wood
[728]
The 2016 Report
[729]
The 2017 Supplementary Report
[736]
The 2020 Report
[759]
Oral Evidence
[764]
(b) Professor Sutton
[767]
The 2018 report
[768]
The 2020 Report
[779]
Oral Evidence
[785]
(c) Dr Mayo
[787]
The 2016 Report
[788]
The 2020 Report
[789]
Oral Evidence
[790]
(d) The 2018 Joint Experts’ Report (2018 JER)
[791]
(9) The J#3 applicant’s expert evidence
[799]
(a) Mr Leo
[799]
The 2012 report
[800]
Oral Evidence
[806]
(b) Dr Clarke
[807]
The 2020 Report
[808]
Oral Evidence
[814]
(10) The State’s expert evidence
[815]
(a) Dr Pannell
[815]
The 2018 report
[816]
The 2018 supplementary report
[826]
The 2018 further supplementary report
[828]
The 2021 further supplementary report
[830]
Oral Evidence
[850]
(11) General review of the lay witnesses’ evidence in both claims
[857]
(12) Review of the weight to be attributed to the opinions of the expert witnesses
[883]
Mr Wood
[884]
Professor Sutton
[904]
Dr Mayo
[906]
Mr Leo
[907]
Dr Clarke
[908]
Dr Pannell
[909]
D. THE ISSUES
[910]
E. PRE-SOVEREIGNTY SOCIETY ISSUES – ISSUES 1-9
[916]
The relevant pre-sovereignty society – its existence, ambit and form – Issues 1-3
[916]
Introduction
[916]
Issue 3 – How many societies?
[918]
Issue 2 – What was the geographical scope of the society/societies?
[922]
Issue 1 – What was/were the society/societies?
[932]
The pre-sovereignty society: laws and customs, spiritual beliefs, the groups within it holding rights and interests in land, the ambit of the estates of those groups, their language and their membership rules – Issues 4-9
[938]
Introduction
[938]
Issue 4 – Laws and customs
[939]
Introduction
[939]
The issue as pleaded
[940]
The findings of fact sought
[949]
The contentions
[953]
Consideration and disposition
[968]
Issue 5 – Spiritual beliefs of the relevant pre-sovereignty society
[991]
Introduction
[991]
The issue as pleaded
[992]
The findings of fact sought
[995]
The contentions
[998]
Consideration and disposition
[1031]
Issue 6 – The rights holding groups within the relevant pre-sovereignty society
[1048]
Introduction
[1048]
The issue as pleaded and the findings of fact sought
[1049]
The contentions
[1051]
Consideration and disposition
[1067]
Issue 7 – The ambit of the estates of the pre-sovereignty society’s rights holding groups
[1077]
The CB applicant’s case
[1077]
The issue pleaded by the J#3 applicant
[1081]
The findings of fact sought by the J#3 applicant
[1082]
The contentions
[1083]
Consideration and disposition
[1095]
Issue 8 – The language or dialects of the pre-sovereignty society’s rights holding groups or their estates
[1102]
The issue is not pleaded
[1102]
The findings of fact sought
[1104]
The contentions
[1106]
Consideration and disposition
[1117]
Issue 9 – The membership rules of the pre-sovereignty society’s rights holding groups
[1118]
The issue as pleaded
[1118]
The findings of fact sought
[1120]
The contentions
[1122]
Consideration and disposition
[1130]
Review of the CB applicant’s case on the relevant pre-sovereignty society issues (Issues 1 to 9)
[1137]
F. CB CURRENT CLAIM GROUP ISSUES INCLUDING ADAPTATION AND CONTINUITY – ISSUES 12-18, 20 AND 21
[1141]
Introduction
[1141]
The changes reviewed
[1144]
The contentions
[1162]
Consideration and disposition
[1207]
G. SUMMARY OF THE MAIN CONCLUSIONS IN EACH CLAIM – ISSUES 19 AND 23-24
[1235]
A. THE FACTUAL BACKGROUND
(1) Sovereignty
The British Crown claimed sovereignty over the then Colony of New South Wales on 7 February 1788. Its claim included that part of the Australian continent extending from Cape York in the north to the southern tip of Van Diemen’s Land in the south. In the west, it extended to the 135th degree of longitude, which runs from a point west of the Gulf of Carpentaria in the north to a point west of Spencer’s Gulf in the south (Alex C. Castles, An Australian Legal History, The Law Book Company Limited, pp 24-25). While that acquisition of sovereignty affected land title in the claim area, British settlement of Australia did not directly affect the Aboriginal inhabitants of that area until more than half a century later.
(2) Effective sovereignty
This hiatus raises the concept of effective sovereignty. It is an admitted fact on the pleadings in these matters that “effective sovereignty” occurred “circa the mid-1850s”. It should, however, be noted that this concept does not involve a recasting of what true sovereignty entails. Rather, it fixes a later point in time up to which it may be inferred that the acknowledgement of laws and observance of customs by the original peoples of the country continued essentially unchanged. In Gudjala People No 2 v Native Title Registrar (2008) 171 FCR 317; [2008] FCAFC 157 (Gudjala), the Full Court referred to the primary judge’s interpretation of the use that a delegate of the National Native Title Registrar had made of that concept and observed, with apparent approval (at [72]):
His Honour referred to the delegate’s conclusion that effective sovereignty occurred at about 1850-1860. He took that conclusion to mean that European occupation had occurred at about that time. He defined the task before him as identification of the existence in 1850-1860 of a society of people living according to identifiable laws and customs having a normative content. Such laws and customs must establish normal standards of conduct or perhaps be prescriptive of such standards.
Since Gudjala, numerous first instance judgments and some Full Courts have adopted the same approach (see, for example, Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 (Banjima) at [82] per Barker J; Dempsey (on behalf of the Bularnu, Waluwarra and Wangkayujuru People) v Queensland (No 2) (2014) 317 ALR 432; [2014] FCA 528 (Dempsey) at [532] per Mortimer J; Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 at [34] per Greenwood J; Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (2015) 325 ALR 213; [2015] FCA 9 (Croft) at [209] per Mansfield J; Anderson on behalf of the Wulli Wulli People v State of Queensland (No 3) [2015] FCA 821 at [56] per Collier J; Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308 (Ashwin) at [276] per Bromberg J and Fortescue Metals Group v Warrie (2019) 273 FCR 350; [2019] FCAFC 177 at [197]-[202] per Jagot and Mortimer JJ, with Robertson, Griffiths and White JJ agreeing). The same approach will be adopted in these reasons.
(3) The early European explorers – several encounters with Aboriginal people
The reports of Dr Fiona Skyring (tendered by the Clermont-Belyando applicant (the CB applicant)) and Dr Phillip Clarke and Mr Daniel Leo (tendered by the J#3 applicant) all contain histories of the CB/J#3 claim area, although it is important to note that, since it was prepared in 2011 for the purposes of the J#1 claim, Mr Leo’s report is largely confined to the claim area, subsequently determination area, of that claim (the J#1 determination area): see McLennan on behalf of the Jangga People v State of Queensland [2012] FCA 1082 (McLennan). That area lies immediately to the north of the present CB/J#3 claim area. What follows has been extracted from those reports. However, it is worth noting at the outset the following cautions that Dr Clarke included in the introductory paragraphs to his history:
13.In keeping with the nature of historical records over much of Australia, the sources utilised here are predominately by non-Aboriginal men who were involved as colonists, pastoralists or officials in areas remote from major town centres. In my experience with working on land claims and on other native title claims, such records have a tendency to focus on the transformation of the country through the establishment of pastoral runs and mines, and to either overstate the extent to which Aboriginal people were removed from the region or to at least understate their role in opening up the country. In analysing this historical material, it must be considered that the lack of records is not evidence for the absence of Aboriginal people within the [c]laim [a]rea. The official historical accounts have tended to down play the agency that Aboriginal people had in conducting their own affairs and maintaining their cultural identity.
14The historical accounts of the earliest period of European settlement do not generally identify the Aboriginal individuals and groups encountered, and in the available records they are often referred to simply as ‘blacks’, ‘natives’ and ‘savages’, and also as ‘wild blacks’ and ‘Myalls’, the latter being a commonly used colonial term used to mean Aboriginal people who were living traditionally beyond the control of the European authorities. The names of the Aboriginal people involved in significant events are only rarely given, and their cultural identities are generally unrecognised. Most of the men who left eye witness accounts of these events showed little or no interest in Aboriginal resource use and ceremony, and the Aboriginal occupation of country was to many of them an impediment to the establishment of profitable ‘runs’ or stations.
(Footnote omitted)
From the mid-1840s, there were three recorded European exploratory expeditions through the claim area or in its vicinity. In chronological order, they were Dr Ludwig Leichhardt (1845), Surveyor-General Sir Thomas Mitchell (1846) and Mr Augustus Gregory (1855). Each of them recorded the presence of Aboriginal people.
The Prussian naturalist and botanist, Leichhardt, set out from Jimbour Station on the Darling Downs on 1 October 1844. He passed through the claim area in early 1845. According to Dr Skyring’s report:
Much of the description in Leichhardt’s journal concerned the type of vegetation and the botanical curiosities in the landscape they traversed, and he and his party were constantly preoccupied with obtaining water and food. Leichhardt travelled through what is now called central Queensland during the hottest months of the year. From the junction of the Comet and Nogoa Rivers, they headed north, and reached the Isaac River in February 1845. Leichhardt named several landmarks near the eastern most point of the … claim area; Scott’s Peak, Calvert Peak, Lord’s Table Mountain, Campbell Peak and Mt Phillips. All of these places were named after Leichhardt’s travelling companions, or the sponsors who had financially supported the expedition.
On 14 January 1845, at the Mackenzie River, about 60 kilometres south east of the claim area, near the present town of Emerald, Leichhardt recorded the following journal entry concerning the presence of Aboriginal people:
Farther on, we came again to scrub, which uniformly covered the edge of the high land towards the river. Here, within the scrub, on the side towards the open country we found many deserted camps of the natives, which, from their position, seemed to have been used for shelter from the weather, or as hiding-places from enemies: several places had evidently been used for corroborris, (sic) and also for fighting.
(Footnote omitted)
On the same day, farther along the Mackenzie River, Leichhardt recorded observing that the area appeared to be “very populous” as follows:
Large heaps of mussel-shells, which have given food to successive generations of the natives, cover the steep sloping banks of the river, and indicate that this part of the country is very populous. The tracks of the natives were well beaten, and the fire-places in their camps numerous. The whole country had been on fire; smoldering [sic] logs, scattered in every direction, were often rekindled by the usual night breeze, and made us think that the Blackfellows were collecting in numbers around us — and more particularly on the opposite side of the river…
(Footnote omitted)
Two days later, still on the Mackenzie River, Leichhardt recorded the following encounter with two Aboriginal men who informed him, through an interpreter, the direction of flow of the Mackenzie River:
[W]e heard the cooee of a native, and in a short time two men were seen approaching and apparently desirous of having a parley. Accordingly, I went up to them; the elder, a well made man, had his left front tooth out, whilst the younger had all his teeth perfect; he was of a muscular and powerful figure, but, like the generality of Australian aborigines, had rather slender bones; he had a splendid pair of moustachios, [sic] but his beard was thin. They spoke a language entirely different from that of the natives of Darling Downs, but “yarrai” still meant water. Charley [an Aboriginal man who assisted Dr Leichhardt as an interpreter], who conversed with them for some time, told me that they had informed him, as well as he could understand, that the Mackenzie flowed to the north-east.
(Footnote omitted)
About a month later (15 February 1845), having travelled to the north-west, and therefore likely to have been east or north of the claim area, Leichhardt made the following observations about the way in which the local Aboriginal inhabitants protected and used the available water resources, including digging wells and filtering water through sand:
[W]e came to a water-hole in the bed of the river, at its junction with a large oak tree creek coming from the northward…the natives had fenced it round with branches to prevent the sand from filling it up, and had dug small wells near it, evidently to obtain a purer and cooler water, by filtration through the sand…We continued our ride six miles higher up the river, without finding any water, with the exception of some wells made by the natives, and which were generally observed where watercourses or creeks joined the river…
Charley had, during my absence from the camp, had an interview with the natives, who made him several presents, among which were two fine calabashes which they had cleaned and used for carrying water; the larger one was pear-shaped, about a foot in length, and nine inches in diameter in the broadest part, and held about three pints. The natives patted his head, and hair, and clothing; but they retired immediately, when he afterwards returned to them, accompanied by Mr. Calvert [a member of Leichhardt’s party] on horseback.
(Footnote omitted)
On 24 February 1845, on the Isaac River, about 60 to 70 kilometres east of the claim area, Leichhardt recorded the following about obtaining water (without permission) from some wells near to a “camp of the natives” and the observations he made concerning the items that had been left in the camp, including an iron tomahawk made “apparently of the head of a hammer: a proof that they had had some communication with the sea-coast”:
I dismounted and cooeed; they answered; but when they saw me, they took such of their things as they could and crossed to the opposite side of the river in great hurry and confusion. When Brown [a member of Leichhardt’s party], who had stopped behind, came up to me, I took the calabash and put it to my mouth, and asked for ‘yarrai, yarrai’. They answered, but their intended information was lost to me; and they were unwilling to approach us. Their camp was in the bed of the river amongst some small Casuarinas. Their numerous tracks, however, soon led me to two wells, surrounded by high reeds, where we quenched our thirst. My horse was very much frightened by the great number of hornets buzzing about the water. After filling our calabash [a kind of gourd which, when dried, could be used for carrying water], we returned to the camp of the natives, and examined the things which they had left behind; we found a shield, four calabashes, of which I took two, leaving in their place a bright penny, for payment; there were also, a small water-tight basket containing acacia-gum; some unravelled fibrous bark, used for straining honey; a fire-stick, neatly tied up in tea-tree bark; a kangaroo net; and two tomahawks, one of stone, and a smaller one of iron, made apparently of the head of a hammer: a proof that they had had some communication with the sea-coast. The natives had disappeared.
(Footnote omitted)
Despite having amicable relations with the Aboriginal people he met, Leichhardt recorded in his journal (on 27 February 1845) that “they seemed very anxious to induce us to go down the river”, as the following entry demonstrates:
The natives had, in my absence, visited my companions, and behaved very quietly, making them presents of emu feathers, boomerangs, and waddies. Mr. Phillips [a member of Leichhardt’s party] gave them a medal of the coronation of her Majesty Queen Victoria, which they seemed to prize very highly. They were fine, stout, well made people, and most of them young; but a few old women, with white circles painted on their faces, kept in the back ground. They were much struck with the white skins of my companions, and repeatedly patted them in admiration. Their replies to inquiries respecting water were not understood; but they seemed very anxious to induce us to go down the river.
(Footnote omitted)
Sir Thomas Mitchell travelled in the vicinity of the claim area between July and September 1846. Dr Skyring noted in her report that Mitchell recorded his progress on a map which showed that “he reached a point on the Belyando River about 40 kilometres north of the northern boundary of the … claim area, then decided to return south along the river and back to his depot camp on the Maranoa”. She went on to observe that Mitchell’s map contained several notations of “Natives” including: near Mt Chantry, close to present day Alpha; near the junction with a tributary of the Belyando River, which he described as “w.s.w” (west south west); and at a place on the northern most part of his journey along the Belyando River about 40 kilometres north of the claim area.
Like Leichhardt, Mitchell was concerned to identify the local water resources. An example was his journal entry on 21 July 1846 as follows:
On turning my horse, he trod on an old heap of fresh water mussels, at an old fireplace of the natives. This was a cheering proof that water was not distant.
(Footnote omitted)
On 28 July 1846, further north along the Belyando River, Mitchell recorded having come across “still smoking fires, water-vessels, etc., of a tribe of natives”. However, the people concerned had left.
Farther north-west along the Belyando River, on 9 August 1846, Mitchell recorded the following interaction with a group of Aboriginal people who made it clear that they wanted him to leave the area:
We watered our horses and took some breakfast…one of the men observed some natives looking at us from a point of the opposite bank. I held up a green bough to one who stood forward in a rather menacing attitude, and who instantly replied to my signal of peace by holding up his boomerang. It was a brief but intelligible interview; no words could have been better understood on both sides; and I had fortunately determined, before we saw these natives, to return by tracing the river upwards … Graham got [our horses] together while I was telegraphing with the natives, some of whom I perceived filling some vessel with water, with which they retired into the woods. We saddled, and advanced to examine their track and the spot they had quitted, also that they might afterwards see our horses’ tracks there, lest our green bough and subsequent return might have encouraged them to follow us. Yuranigh [an Aboriginal man who acted as interpreter to Mitchell] was burning the mutton bones we had picked; but I directed him to throw them about, that the natives might see that we neither eat their kangaroos nor emus.
(Footnote omitted)
On the next day (10 August 1846), Mitchell recorded the following “hostile” encounter with a group of “seventeen natives” which occurred while he was away from the camp and during which it was made clear to the members of his party present in the camp that “the whole country belonged to the old man [the head of the group]” and that they should “leave that place”:
The camp had just been visited by seventeen natives, apparently bent on hostile purposes, all very strong, several of them upwards of six feet high. Each of them carried three or four missile clubs. They were headed by an old man, and a gigantic sort of bully, who would not keep his hands off our carts. They said, by signs, that the whole country belonged to the old man. They pointed in the direction in which I had gone, and to where Mr. Stephenson happened to be at the time, down in the river bed; and then beckoned to the party that they also should follow or go where I had gone, or leave that place. They were received very firmly, but civilly and patiently, by the men, and were requested to sit down at a distance, my man Brown, being very desirous that I should return before they departed; thinking the old man might have given me some information about the river, which he called ‘Belyando’. But a noisy altercation seemed to arise between the old chief and the tallest man, about the clubs, during which the latter again came forward, and beckoned to others behind, who came close up also. Each carried a club under each arm, and another in each hand, and from the gestures made to this advanced party, by the rest of the tribe of young men at a distance, it appeared that this was intended to be a hostile movement. Brown accordingly drew out the men in line before the tents, with their arms in their hands, and forbade the natives to approach the tents…these strong men stood still and looked foolish, when they saw the five men in line, with incomprehensible weapons in their hands. Just then, our three dogs ran at them, and no charge of cavalry ever succeeded better. They all took to their heels, greatly laughed at, even by the rest of their tribe; and the only casualty befell the shepherd’s dog, which biting at the legs of a native running away, he turned round, and hit the dog so cleverly with his missile on the rump, that it was dangerously ill for months after; the native having again, with great dexterity, picked up his club …
(Footnote omitted)
Mitchell added the following observations in his journal about his decision to change his plans to explore the upper reaches of the “Belyando”, as a result of this encounter:
That these natives were fully determined to attack the white strangers, seems to admit of no doubt, and the result is but another of the many instances that might be adduced, that an open fight, without treachery, would be contrary to their habits and disposition. That they did not, on any occasion, way-lay me or the doctor, when detached from the body of the party, may perhaps, with equal truth, be set down as a favourable trait in the character of the aborigines; for whenever they visited my camp, it was during my absence, when they knew I was absent, and of course must have known where I was to be found. The old man had very intelligibly pointed out to Brown the direction in which this river came, i. e., from the S. W. (southwest), and I therefore abandoned the intention of exploring it upwards, and determined to examine how it joined, and what the character of the river might be, about and below that junction, in hopes I might still obtain an interview with the natives, and learn something of the country to the north-west.
(Footnote omitted)
Three days later (13 August 1846), Mitchell recorded observing areas of grass fire and noted that, while they heard Aboriginal voices, they did not see anyone. He apparently thought his group was being followed to ensure that they left this area because he recorded in his diary:
… Even to the lagoon, their track along our route was also plainly visible. I was now, apparently to them, at their request, leaving the country; and we should soon see if their purpose in visiting our camp w
as an honest one, and whether their reasonable and fair demand, was really all they contemplated on that occasion.
(Footnote omitted)
About three weeks later (on 4 September 1846), Mitchell recorded a further encounter with another group of Aboriginal men and women and the measures they took to avoid his party and to protect themselves from any harm:
[W]e perceived a line of about twelve or fourteen natives before they had observed us. Through my glass, I saw they were painted red about the face, and that there were females amongst them. They halted on seeing us, but some soon began to run, while two very courageously and judiciously took up a position on each side of a reedy swamp, evidently with the intention of covering the retreat of the rest. The men who ran had taken on their backs the heavy loads of the gins, and it was rather curious to see long-bearded figures stooping under such loads. Such an instance of civility, I had never before witnessed in the Australian natives towards their females; for these men appeared to carry also some of the uncouth-shaped loads like mummies. The two acting as a rear guard behaved as if they thought we had not the faculty of sight as well as themselves, and evidently believed that by standing perfectly still, and stooping slowly to a level with the dry grass, when we passed nearest to them, they could deceive us into the idea that they were stumps of burnt trees. After we had passed, they were seen to enter the brigalow, and make ahead of us; by which movement I learnt that part of the tribe was still before us. Sometime afterwards, we overtook that portion when crossing an open interval of the woods; they made for the scrub on seeing us. Meanwhile columns of smoke ascended in various directions before us, and two natives beyond the river were seen to set up a great blaze there.
(Footnote omitted)
As already mentioned, Mr Augustus Gregory travelled in the vicinity of the claim area in 1855 having originally set out from Victoria River in the present day Northern Territory and travelled through the desert regions of Western Australia before travelling east. Noting that Peak Downs is to the east of the claim area, Dr Skyring recorded in her report that:
On 5 November 1856 they travelled past Mitchell’s most northerly camp on the Belyando River, and decided to travel south east towards Peak Downs. The next day they struggled through brigalow scrubs and near a small gully with rainwater ‘a camp of blacks was observed; but they ran into the scrub on our approach’. They were out of water, expedition member Melville was injured and the horses were all nearly lame from falling so often in the dense scrub, so they stopped to camp at a place where there was ‘a fine creek with grassy flats’.
(Footnotes omitted; bold added)
About a week later (on 13 November 1855), Gregory recorded in his journal: “… saw some blacks, who, when asked by signs where water could be found, pointed down the creek and into the scrub” (Footnote omitted). On the next day (14 November 1855), he recorded the following observations in his journal about the potential of the area:
If this part of the country were well supplied with water it would form splendid stations for the squatter; but from its level character and geological structure, permanent surface-water is very scarce, and where it does exist it is surrounded by scrubby country, which renders it almost unavailable.
(Footnote omitted)
As Dr Skyring remarked in her report, these records do “not provide comprehensive evidence of patterns of residence of Aboriginal people across the claim area because neither Mitchell nor Gregory covered enough territory”. However, as she went on to observe, they do show that “[t]hey encountered evidence of Aboriginal occupation wherever they went, and Mitchell was told angrily that they were not welcome in country that was not theirs”. Furthermore, while Gregory’s records are essentially limited as to the presence of Aboriginal people in the claim area, or the area surrounding it, both Leichhardt and/or Mitchell’s records attest to the use of vessels to carry water, the use of woven nets and baskets, the use of weapons including boomerangs, the use of fire as a land management practice and the harvesting of river food such as mussels. Leichhardt also described having observed a cleared area which he assumed was used for ceremonies.
(4) The pastoral and mining influx – 1850s to 1860s
The settler influx to the claim area began from the early 1850s, some years before Queensland was declared a separate Colony from New South Wales in 1859. That influx occurred soon after the Moreton Bay Penal Settlement (established in 1824) was declared open for free settlement by the then Governor of the Colony of New South Wales, Governor Gipps, in February 1842. But, as Dr Skyring noted in her report, “the colonial government, though, was one step behind the settlers in the rush to occupy land, and it was estimated that in the early 1840s about half of the sheep in the new [Moreton Bay] district were illegally grazing on land that had not been officially leased”.
This land rush soon affected the claim area. By the early to mid-1850s, Dr Skyring observed that the influx of European settlers to that area was “eventually massive”, “not uniform” and “for the most part unregulated”. In respect of Dr Skyring’s “not uniform” comment, it should be noted that there is evidence that the southern part of the claim area was settled by about 1854 whereas that did not occur in the northern part until almost a decade later. Further, in respect of her “eventually massive” comment, Mr Leo included in his report a table, albeit concerning the Kennedy Pastoral District to the north of the claim area, which showed the number of settlers in that District between 1862 and 1876 as follows:
Year Settlers 1862 86 … 1865 1,086 1868 4,955 … 1876 27,489
The Unoccupied Crown Lands Occupation Act 1860 (Qld) came into effect on 1 January 1861. It divided Queensland into 12 pastoral districts and established a process for claiming and leasing pastoral land. The present claim area was covered or surrounded by the Leichhardt Pastoral District to the east, the Kennedy Pastoral District to the north and the Mitchell Pastoral District to the west. The first lease was granted in the claim area under that statutory regime in 1852 when Mr Jeremiah Rolfe took up a lease at a place he called Pioneer Station on Mistake Creek. It was located in the northern part of the claim area. Dr Skyring recorded in her report that:
For two years it remained unoccupied by Rolfe, and it was not until 1854 that he stocked the run. Later he brought his family, and in December 1856 his first granddaughter was born there. His granddaughter later recalled that the homestead was,
built like a fort, with loopholes [for guns] in the walls of heavy split logs. The Aborigines had been truculent, and had shown their feelings by spearing cattle ever since Jeremiah Rolfe first settled there.
(Footnotes omitted)
At about the same time that Mistake Creek was being stocked, the Archer brothers purchased leases at Peak Downs, Retro, Capella and Gordon Downs, all east of present day Clermont and the claim area. By 1859, when Mr Gordon Sandemand and Mr James Milson bought those leases, they included Wolfang, Huntley and Crinium, and which were together described as Peak Downs. They appointed Mr Oscar de Satge as their manager in 1861. However, it took some time for de Satge to develop and stock the leases. Other leases were taken up in the general vicinity, as Dr Skyring noted in her report:
De Satge himself purchased Cheeseborough (also known in the records as Chessborough) a block northeast of Peak Range, about 20 kilometres from Peak Downs station. When de Satge went to manage the Peak Downs leases, including Capella and Retro, in 1863 he was based at Wolfang, described as the ‘head station’. De Satge’s nearest neighbour was Cheeseborough Macdonald (after whom he had named his own lease) at Logan Downs. De Satge’s brother Henri managed Gordon Downs near Crinium station, just to the east of the … claim area. For a period in 1864-65, Oscar de Satge was also associated with Huntley station, a short distance east of Clermont.
(Footnotes omitted)
To the west of the Peak Downs region on Gordon Creek near Clermont was Banchory Station. It was originally leased by Mr John Muirhead in 1860. As well, during the same period in the 1860s, a number of runs were leased in, or in the vicinity of, the claim area as follows:
In 1863 Bathahmpton Run was leased, at an area where the Blair Athol coal seam was later discovered. Further inland was Surbiton station, and in 1865 these runs were leased to William Kilgour. In 1861 the Dunrobin run was listed for sale, although it was not shown as a station on the early historical maps.
(Footnotes omitted)
In her report, Dr Skyring recorded that these early settlers were confronted with disease and experienced shortages of food and water. For instance, she cited the writings of Mr Cuthbert Fetherstonaugh who, in 1864, brought cattle overland from Rockhampton to his property at Burton Downs and recorded that the men in his droving team “were often short of food and water”. Furthermore, during his journey, Fetherstonaugh wrote that he met with Muirhead of Banchory Station, who informed him that his (Muirhead’s) wife had already died of scurvy. As well, Fetherstonaugh noted that Muirhead himself later died of disease. At Logan Downs, Fetherstonaugh wrote that “[a]ll of the supplies … were exhausted and they did not know when they would be getting more”.
When he arrived at Burton Downs, Fetherstonaugh wrote that a German family who had been working for him at the Station had all perished from fever and “ague”, a malarial fever. Fetherstonaugh also recorded that he was too nervous to sleep or light a fire during his journey because “these scrubs were full of wild blacks”. At a place about seven miles from Burton Downs, he camped in a clearing which he recorded was a “big pad…made by the blacks on the soft ground”. Dr Skyring speculated that this may have been the same clearing that Leichhardt recorded in his journal in 1845 as a place for “corroborris, (sic) and also for fighting” (see at [14] above).
Dr Skyring noted that, by 1864, the following stations had been established in the vicinity of the claim area albeit that it remained “isolated”:
Mr. Black occupied Eaglefield station just west of Burton Downs, and William Gaden had a station on Mistake Creek. Tinwald Downs station on Kilcummin Creek was established in 1864 by James Wilkin and Co., and in the late 1860s was, for a while, managed by Fetherstonaugh. About ten miles west of Tinwald was the old Kilcummin head station. Craven’s station was southwest of where the town of Clermont would later be established. But ‘neighbours’ were still isolated. For instance it took two days along Clermont Road to ride from Tinwald Downs to Avon Downs. Craven’s station was effectively under siege in the early 1860s, and Aboriginal people regularly robbed the huts.
In addition to this influx of European settlers seeking to occupy land for pastoral purposes, others came in search of minerals. Copper was discovered at Peak Downs in 1860 and at a place later named Copperfield about seven kilometres south of Clermont. As well, gold was found at Sandy Creek near Clermont in 1861.
In his report, Dr Clarke recorded the following observations of historians Stringer and Stringer concerning the early development of the town of Clermont:
With water near at hand and the promise of alluvial gold, tents and shanties quickly appeared. There was no thought given to the suitability of the site as a permanent town: the prospectors were after gold. However, as the field continued to yield gold in payable quantities, the town of Clermont was surveyed by C. F. Gregory in December 1863 and the first sale of land took place four months later.
(Footnote omitted)
He added that:
Gold mining continued through the 1880s, and with the rail link reaching Clermont from Rockhampton via Emerald in 1884, Clermont became a regional centre.
(Footnote omitted)
As for the Aboriginal residents of Clermont, Dr Clarke noted in his report that:
The main Clermont Aboriginal camp was about two kilometres out of town, located near the junction of the Sandy and Wolfang Creeks. From newspaper accounts, the camp appears to have been quite large at the turn of the century, and it remained there until the early 1950s … The camp was populated with Aboriginal people originating from a wide area, who resided there while seasonally out of work.
(Footnotes omitted)
As an indication of the size of the camp by the late 1800s, Dr Skyring recorded that:
There were 161 blankets provided to the Clermont camp in 1897, and 150 proposed for 1898.
(Footnote omitted)
(5) The reverberating violence which ensued – from the 1860s
This wave of European settlement was resisted by the local Aboriginal people. Some of the newspaper accounts of that resistance, published during the 1860s and early 1870s, were reproduced in Dr Clarke’s report as follows:
29… It was said that at Bowen Downs in 1862, to the near west of the [c]laim [a]rea, that:
When they [pastoralists Landsborough, Cornish and Buchanan] first formed a settlement, … the aborigines showed decidedly hostile tendencies. So warlike were these dusky neighbours that the station employees had to carry arms continually. The natives had their haunts in the Great Dividing Range, and in the desert country embracing the Belyando. The tribes from there appeared to cherish greater hostility against the whites than those who found their homes in the vicinity of the Thomson and Landsborough rivers.
…
32… in 1864 the Elgin Downs Station was established in the area just north of the [c]laim [a]rea, and it was reported that …:
The sheep appeared to thrive well at the outset, but it was soon manifest that the ravages of the aborigines and native dogs would cause it to be inexpedient to continue with sheep. The blacks at that period were very hostile to the whites, and also so destructive to the stock that the flocks had to be continually watched. This entailed the employing of a number of shepherds. Several of these were murdered by the blacks, and a reign of terror supervened. In fact, so afraid were some of the shepherds that they could not be prevailed upon to go out alone. One shepherd in charge of a flock at an outstation had been murdered some days before the people at the head station were aware of the occurrence. The flocks in the meantime became scattered and much loss ensued.
…
36… in the Rockhampton Bulletin on the 23rd of November 1869, [it was] announced that ‘That all hands have been murdered by the blacks at Elgin Downs Station, and that the Police Magistrate had started to inquire into the report’. Elgin Downs is to the north of the [c]laim [a]rea, but the killings had a wider impact across the region which includes the [c]laim [a]rea. It was explained that:
It is not likely there were more than a married couple and one or two hands on the station. The isolated position of the station, and the presence of only a few hands on it, would make the reported massacre more probable. We hear of another massacre on Avon Downs, situated ninety miles [145 kms] from Clermont, in the Port Mackay direction. It is reported that two troopers have been murdered by the blacks. This, though not confirmed, has come from a quarter we think reliable, and there is too much reason to fear that it is true.
…
39In 1871 a newspaper item, titled ‘Black Outrages in Northern Queensland’, summarised the recent disappearance of three Europeans, who it was thought had all been killed by Aboriginal people in the Bowen Downs district, which is to the near west of the [c]laim [a]rea. The same account added that:
We also hear that the Belyando blacks have become very saucy, and announce their intention of driving the white men out of the country. However ridiculous this threat may be, it is still indicative of the frame of mind of our black neighbors [sic], and shows that in mercy to both races a lesson should be taught them to convince them of the absurdity of their ideas, and to inculcate the wisdom of submission.
(Footnotes omitted)
Dr Skyring’s report is replete with similar accounts. In particular, she described two massacres by Aboriginal men that had occurred on pastoral properties – one at Hornet Bank Station on the Dawson River (south of the claim area) in 1857 and the other at Cullin-la-Ringo Station (about 50 kilometres south of the claim area) in October 1861. Eleven settlers were killed in the first incident and 19 were killed in the second. By way of retribution, she noted that:
… In his 1861 despatch to his colonial superiors in London, Queensland Governor Sir George Bowen wrote that approximately 70 Aboriginal people were killed in the aftermath of Cullin-la-Ringo …
However, she added that, based on unofficial accounts at the time, this was likely to have been an underestimate.
One of the main impacts of the Cullin-la-Ringo’s killings was an increased presence of the Native Police in and around the claim area. Dr Skyring opined that this increased presence “in turn prompted a continuing cycle of retaliatory violence by local Aboriginal people”. She added that “[t]he stationing of police barracks in the area seemed to exacerbate rather than diminish the violence”.
The origins and tactics of the Queensland Native Police Force were described by Dr Skyring in her report in the following terms:
… The Native Police were established as a distinct branch of the colonial police force in northern NSW in 1848, and they soon gained a reputation for brutality towards Aboriginal people …
The Queensland Native Mounted Police Force (NMP) was established in 1859, and was organized along the same lines as the Native Police in New South Wales, in that it was force of displaced Aboriginal men commanded by European officers … The central policy in the recruitment of Aboriginal troopers was that they were foreigners to the area being policed. For instance, Aboriginal men from New South Wales were recruited to conduct ‘dispersals’ of Aboriginal groups in the south east of the Moreton Bay district and in the Darling Downs. In turn, Aboriginal men from the Condamine River and from the Albert and Logan River valleys west of Moreton Bay were recruited for action in northern and far western Queensland …
Some squatters and their employees joined with the Native Police in what were called ‘dispersals’, which despite the innocuous sounding name were organised murderous raids on groups of Aboriginal men, women and children. When asked at a Parliamentary inquiry in 1861 what he meant by ‘dispersing’ an Aboriginal camp, Native Police Lieutenant Frederick Wheeler simply responded, ‘firing at them’. Wheeler claimed he gave strict orders that his troopers do not shoot at women. But ‘indiscriminate slaughter’ of Aboriginal people was one of the many allegations of brutality investigate [sic] by the Queensland Legislative Assembly Select Committee in 1861 …
(Footnotes omitted)
She added that:
Lieutenant Murray [the Northern District Commander of the Native Police] was clear that the role of the police under his command was to drive Aboriginal people away from the stations with murderous force …
With respect to the “dispersal” activities of the Native Police mentioned above, Dr Skyring noted in her report that “local squatters and their employees were every bit as homicidal as the Native Police”.
This violent period was described by several contemporary commentators as a “war”. For instance, Dr Skyring referred in her report to:
… an account published in [Ethnographer] Edward Curr’s second volume of The Australian race [1886-1887], [where] one of Curr’s ethnographic informants, William Chatfield of Natal Downs station on Cape River [about 35 kilometres north of the claim area], described the operation of the Native Police [in the following terms]:
the Blacks are attacked and some of them shot down. In revenge, a shepherd or stockman is speared. Recourse is then had to the Government; half-a-dozen or more young Blacks in some part of the colony remote from the scene of the outrage are enlisted, mounted, armed, liberally supplied with ball cartridges, and despatched to the spot under the charge of a Sub-inspector of Police. Hot for blood, the Black troopers are laid on the trail of the tribe; then follow the careful tracking, the surprise, the shooting at a distance safe from spears, the deaths of many of the males, the capture of the women, who know that if they abstain from flight they will be spared; the gratified lust of the savage, and the Sub-inspector’s report that the tribe has been ‘dispersed’, for such is the official term used to convey the occurrence of these proceedings. When the tribe has gone through several repetitions of this experience, and the chief part of its young men been butchered, the women, the remnant of the men, and such children as the Black troopers have not troubled themselves to shoot, are let in, or allowed to come to the settler’s homestead, and the war is at an end.
(Footnote omitted; bold added)
Mr Leo’s report included some similar commentary. He summarised the 1970 publication by historian Noel Loos in the following terms:
… To begin with, Aboriginal people killed settlers, pillaged their huts, killed livestock, and disturbed sheep and cattle herds. This resulted in shepherds being ‘scare and expensive’, and frightened and isolated station workers resorted to guns and poisoned food to defend themselves. Also in response to such concerns a Native Police force, with the purpose of ‘subduing’ and ‘dispersing’ Aboriginal populations, was established. Successful Aboriginal resistance, plus a few well-publicised massacres of settlers by Aboriginal people, only served to intensify the punitive nature of the conflict. All this was in the context of a system of rule of law that did not effectively protect Aboriginal people from violence to their life and property. With unsettled areas legally conceived of as ‘waste and unoccupied’, settlers were therefore officially regarded as acting in self-defence, whereas Aboriginal people were seen as committing crimes against the settler’s life and property.
(Page numbers omitted)
(6) The “letting in” period which followed
One reaction to this widespread violence among some of the pastoral settlers was a practice called “letting in”. In Curr’s publication mentioned above, William Chatfield described that practice in the following terms:
Generally, after the first occupation of a tract of country by a settler, from three to ten years elapse before the tribe or tribes to which the land has belonged from time immemorial is let in, that is, is allowed to come to the homestead, or seek for food within a radius of five or ten miles of it. During this period the squatter’s party and the tribe live in a state of warfare; the former shooting down a savage now and then when opportunity offers, and calling in the aid of the Black Police from time to time to avenge in a wholesale way the killing or frightening of stock off the run by the tribe.
(Footnote omitted; bold added)
This “letting in” practice caused tension within the local settler community. Lieutenant Murray of the Native Police complained about it in a report to his superiors in 1867 and, as Dr Skyring noted:
Lieutenant Murray’s complaint about some squatters ‘letting in’ Aboriginal people to their head stations was an argument that was waged at the time by colonists, with the Peak Downs Telegram editors firmly on the side of the squatters who demanded the police ‘disperse’ Aboriginal people whose country they occupied …
In his report, Mr Leo quoted Loos’ more colourful description of the “keeping the blacks out” and “letting the blacks” in as:
… firstly, the act of open warfare and secondly, the acceptance of unconditional surrender by the Aborigines …
From the 1870s, this “letting in” approach became more common. Dr Skyring recorded in her report:
Despite the hounding of Aboriginal people by Native Police patrols in the previous decade [the 1860s], records indicated that people continued to camp on or close to the stations … At Avon Downs, one of Edward Curr’s informants, whose name he did not record, wrote that when the station was originally occupied in 1863 there were about 500 of the local tribe, which he called Nurboo Murre. By the early 1880s, this number had declined to about 100 people.
In the southern part of the … claim area, around the present day towns of Jericho and Alpha, the stations were stocked and employed large numbers of people. Isabel Hoch wrote that the station workforce in this area usually included Chinese people as cooks and gardeners, and Aboriginal people were employed as stockmen and general ‘hands’ …
(Footnotes omitted)
Because the station managers did not routinely record the presence of Aboriginal workers on pastoral stations, Dr Skyring found it difficult to determine from the records she was able to examine at the John Oxley Library how many Aboriginal people living in and around the claim area took advantage of this “letting in” practice. Nonetheless, a separate set of records she was able to access for Alpha Station for the period 1884 to 1919 “showed a regular Aboriginal station workforce over decades”. Furthermore, she noted that some pastoralists treated the Aboriginal people living on their stations more kindly. In this respect, she noted that:
Other records depicted a peaceful routine of work on the stations, and in places like Ducabrook station Aboriginal people were able to continue the conduct of ceremony, inviting their neighbours for formal gatherings such as funerals and for less formal visits.
(7) The resultant declines in and migration within the Aboriginal population
Unsurprisingly, this violence, together with introduced diseases, caused a significant decline in the Aboriginal population in and around the claim area from the 1860s. Dr Clarke recorded various features of that phenomenon by reference to several newspaper articles and other reports, including the following:
54[F]requent and relentless killings of Aboriginal people had taken place in the region of the [c]laim [a]rea from the 1860s until at least the 1880s. Newspaper accounts document the rapid Indigenous depopulation of the region. A pastoralist at Cape River to the near north of the [c]laim [a]rea remarked in the Queenslander newspaper that ‘measles in ‘65 [1865] and the vices of civilisation since have caused this rapid decrease,’ and he claimed that until 1868 the undisciplined Mounted Native Police were frequent visitors to the station and killed many of his Aboriginal shepherds and terrorised their families. In 1868, Rev. J.K. Black wrote to the Brisbane Courier about the Aboriginal ‘war of extermination’ taking place in north central Queensland, and he announced that he was making arrangements for sending orphaned children from the Cape River district across to Bowen for adoption by Europeans …
…
57A newspaper journalist said in 1875 that ‘The aborigines in the Natal Downs country are reported to be dying in large numbers of measles’. In 1887, the early ethnographer MacGlashan remarked that ‘since the coming of the Whites a great many young children die of cold and low fever’ in the area between Belyando and Cape Rivers, which is to the north of the [c]laim [a]rea. Other deaths were due to the brutal actions, referred to euphemistically as ‘dispersals’ by the Mounted Native Police.
…
(Footnotes omitted; bold added)
Dr Skyring observed that it was difficult to estimate how many Aboriginal people had been killed or died in this period. However, she did note that one feature of the violence was that the:
[D]eliberate targeting of young Aboriginal men … seemed to be a pattern repeated across the region. The accounts from the squatters themselves usually referred to shooting Aboriginal men; in one of Fetherstonaugh’s accounts a woman was shot by mistake. The decimation of the male population would have had a devastating effect on Aboriginal groups in the … claim area. Yet, the records showed that Aboriginal people survived the slaughter and were eventually ‘let in’ to the stations to work.
On the extent of depopulation, again referring to Loos’ 1970 publication, Mr Leo noted in his report that, in the Bowen region to the north and east of the claim area:
As conflict generally abated and ‘letting in’ progressed, … by 1870 the Aboriginal population of the Bowen region, then numbering approximately 1,500 people, were able to resume “as much of their traditional life as possible” … New hazards, however, presented themselves to the Aboriginal population as it dwindled to an estimated 200 people by 1900, affected by such ills as poor diet, disease, alcohol and opium.
A measure of the “rapid decline” and partial extinction of some of the various “bura group populations relevant to Jangga [c]ountry and the surrounding region” from the 1860s was provided by Dr Clarke in his 2020 report where he included the following table of population estimates:
Table 1. Decline in bura group populations relevant to Jangga Country and the surrounding region.
Grouping [bura groups] Location First population estimate Second population estimate Source Auanbura (Owanburra, Kowanburra) Upper Belyando River 100 to 120 people in 1874 20 in 1908 Muirhead (AIATSIS, cited Leo, 2011, Fig.17, p.71) Babingbura North side of Drummond Range N/A N/A Howitt, 1904, p.826 Bingabura Charters Towers area N/A N/A Howitt, 1904, p.826 Bithelbura Southwest of Clermont N/A Extinct by 1865 Howitt, 1904, p.63 Boanbura Cape River N/A N/A Howitt, 1904, p.63 Dorobura East of the Belyando River, along the Suttor River N/A N/A Howitt, 1904, p.62 Koombokkaburra (Howitt’s Kumbukabura) Main Range between Cape & Belyando Rivers 400 people in 1862 200 people in 1880 Curr, 1878, p.18 Minkibura Between Main Range & Belyando River N/A N/A Howitt, 1904, p.63 Mutabura Tompson River, Bowen Downs to the Main Range N/A N/A Howitt, 1904, p.63 Mutherabura Lower Mistake Creek 80 people ‘once’ Extinct by 1908 Muirhead (AIATSIS, cited Leo, 2011, Fig.17, p.71) Pegulloburra [possibly Howitt’s Bingabura] Natal Downs Station 125 men plus many women & children in 1868 30 men, 50 women & some children in 1880 Tompson & Chatfield, 1886, pp.470-471 Terrabura Barcaldine area N/A N/A Howitt, 1904, p.826 Tilbabura Upper Barcoo River N/A Extinct by 1865 Howitt, 1904, p.63 Wakelbura [Chatfield’s Wokkulburra & Muirhead’s Wokkelburra] Lower to mid Belyando River 250-300 people in 1874 50 in 1908 Muirhead (AIATSIS, cited Leo, 2011, Fig.17, p.71) Wudillaburra N/A 80 people ‘once’ Extinct by 1908 Muirhead (AIATSIS, cited Leo, 2011, Fig.17, p.71) Yambeena Clermont district 100 people in 1880 N/A Wilson & Murray, 1887, p.64 Yankibura Aramac to Belyando Range N/A N/A Howitt, 1904, pp.63-64 Yukkaburra [equivalent to Chatfield’s 1875 Yuckaburra] Natal Downs Station N/A Extinct before 1862 Tompson & Chatfield, 1886, p.468 Six Chatfield/Curr groupings (Yukkaburra, Pegulloburra, Wokkulburra, Mungooburra, Mungullaburra & Goondoolooburra) Cape River catchment N/A 200 men & more women in 1880 Tompson & Chatfield, 1886, p.471
In addition to this rapid decline in the Aboriginal population of the region, a significant migration occurred in and around the claim area. As already mentioned, some Aboriginal people moved closer to pastoral properties. As well, some moved to the relative safety of towns like Clermont. Dr Clarke observed, with respect to this migration, that:
With so much of the region surrounding the [c]laim [a]rea taken up by pastoralists and miners, Aboriginal people were forced to live in fringecamps on the edge of large towns, where they could stay when out of work or not required due to the season. People living here required rations in order to exist, and in towns like Clermont to the near southeast of the [c]laim [a]rea the levels of substance abuse within the Aboriginal community was severe. For instance, in 1896 it was reported in a Brisbane newspaper that:
The aboriginals in the Clermont district were presented with the usual blanket this afternoon. About thirty blacks attended, and among the number were to be seen a few splendid specimens of the native man, but the majority bore evidence of the white man’s civilisation in the shape of rum and opium.
(Footnote omitted)
(8) Controls and removals – the late 19th and early 20th centuries
For the following reasons, I accept the thrust of the State’s contentions above (at [1162]-[1163]) about the effect of the changes the CB applicant has made to its claim over the years. Specifically, I consider that those changes show that the present CB claim group is not united in, and by, a body of laws and customs, the acknowledgement and observance of which could give rise to rights and interests in the land and waters of the claim area. Those changes therefore show that the CB claim group does not, as a group, constitute a normative society in the Yorta Yorta HC sense such that it is capable of sustaining such rights and interests.
Consequently, as the summary of those changes set out above (at [1160]) reveals, the CB claim group is not able to decide as a group what its traditional laws and customs are with respect to a number of critical elements. They include: whether there is a necessity for its members to identify with the name Wangan and/or Jagalingou; what the nature and content of its descent rule is and the related question whether an adopted person can gain rights and interests in land as a member of one of its rights holding groups. As a consequence of these disagreements, the CB claim group cannot say with any certainty who is, or is not, a member of that group. Hence, the five occasions where removals and/or reinstatements have been made to its listed apical ancestors. Furthermore and relatedly, because it is not sufficiently organised, it has not developed a system which is capable of resolving disputes about the operation of its membership rule.
With respect to the necessity to identify with the name Wangan and/or Jagalingou, it is convenient to begin with the CB applicant’s three contentions about the role of a claim group description under the NTA (see at [1180] above). That is so because I consider they disclose a fundamental misconception that has infected the CB claim from almost its outset. The first part of the first sentence of those contentions engages Professor Sutton’s term “labelism” mentioned above (see at [1185]). On that issue, there is common ground between the CB applicant and the State that the NTA does not prescribe the form or manner in which a native title claim group must be described (cf the CB applicant’s contentions at [1184] above with the State’s contentions at [1192(g)] above). That is left entirely to the group concerned.
However, as the State has pointed out in its submissions, it is not the name that the CB claim group chose to call itself that is pivotal to this issue, but rather the significance it attached to that name until about three months before the trial began, when it abandoned it and adopted the Clermont-Belyando label instead. Specifically, throughout that period, the CB claim group authorised the filing of a claim which included a statement to the effect that, under its traditional laws and customs, its members identified as either “Wangan” or “Jagalingou” (initially), or both (from 2014). Furthermore, it can be inferred that the members of the claim group instructed its authorised applicant to pursue that claim in that form. Moreover, at at least three points during that period, the members of its authorised applicant made affidavits in which they each deposed that they believed that “all of the statements made in the application are true” (see, for example, at [88] and [92] above). That is to say, the then current members of the CB applicant testified on oath or affirmation in 2004 and again in 2014 that they believed as true the statement that, under the traditional laws and customs of the CB claim group, its members identified as either “Wangan” or “Jagalingou”, or both, and then stated in 2019 that there was no such requirement. Putting aside those persons telling deliberate lies about that matter, which I do not consider occurred, the conclusion I draw from this state of affairs, at least in respect of a requirement to identify with that name, is that the members of the CB claim group were and remain uncertain as to what their traditional laws and customs are (cf the State’s contention at [1164] above). In this respect I interpose to reiterate my earlier rejection of Professor Sutton’s attempt to explain away these contradictions as involving gratuitous concurrence (see at [230] above).
The CB applicant has attempted to deflect responsibility for this conclusion by claiming that its members and the members of the CB claim group were acting on the advice of anthropologists and lawyers when they made these decisions and/or statements. This contention and those at [1180] above disclose the fundamental misconception that I have mentioned above, to which I now turn.
The expression “native title claim group” is relevantly defined in s 253(a) of the NTA to mean: “in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1)”. In that table, that group is prescribed to be comprised of those persons who “according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed”. Then s 251B of the NTA (since amended) requires that “all” of the persons in that group must authorise a person or persons, commonly described as the authorised applicant, to make the application in accordance with one of the processes described in subsection (a) or (b). In this respect I interpose to note that it is not sufficient if a “core group” within the claim group authorises the making of the application. “All” of the members of that group must be offered a reasonable opportunity to participate in that authorisation process (see most recently Evans on behalf of the Yarla-Gu Bunna Nangatjara People v State of Western Australia [2021] FCA 1382 at [63(21)] per Griffiths J and the cases cited).
In Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625, Dowsett J explained that these provisions mean that the membership of a native title claim group is determined by that group according to its traditional laws and customs. Specifically, his Honour said (at [256]):
Inevitably, these requirements lead to the conclusion that for the purposes of the [NTA], it is the claim group which must determine its own composition. Any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B. The claim group must assert that, pursuant to relevant traditional laws and customs, it holds Native Title over the relevant area. It is not necessary that all of the members of the claim group be identified in the application. It is, however, necessary that such identification be possible at any future point in time. A claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member. As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs. As to matters of process the claim group must act in accordance with traditional laws and customs or, in the absence of relevant laws and customs, pursuant to such process as it may adopt.
Furthermore, after quoting a passage from the judgment of Brennan J in Mabo at 61, and noting that the same passage had been adopted by the Full Court in Yorta Yorta FC without challenge from the High Court on appeal, Dowsett J went on to add the following pertinent observations about the necessity for mutual recognition within the membership of a functioning society:
258The passage demonstrates that the existence of a relevant society depends upon mutual recognition within the group, this being a necessary characteristic of a society. It follows that membership of the claim group depends upon similar recognition. In [Sampi SJ], French J said at [820]:
There are “emic” bases of identification as Bardi or Jawi. The term “emic” refers to a perspective which is internal to the culture.
259On appeal in [Sampi FC] the Full Court (North and Mansfield JJ) said at [45]:
A relevant factor among the constellation of factors to be considered in determining whether a group constitutes a society in the Yorta Yorta [HC] sense is the internal view of the members of the group – the emic view. The unity among members of the group required by Yorta Yorta [HC] means that they must identify as people together who are bound by the one set of laws and customs or normative system. …
260These cases clearly demonstrate that membership must be based on group acceptance. That requirement is inherent in the nature of a society. However the society may accept the views of particular persons as sufficient to establish group acceptance.
(Bold in original)
These observations are similar in effect to those the State has cited relying on 187 of Mabo per Toohey J and [49] of Yorta Yorta HC (see at [1142] above). Also relevant are the observations that Nettle J made in Love where his Honour underscored the pivotal importance of a society’s laws and customs relating to membership as follows (at 271):
Axiomatically, a person cannot be a member of an Aboriginal society continuously united in the acknowledgment of its laws and customs unless he or she is resident in Australia. Nor can a person be a member of such an Aboriginal society unless he or she is accepted as such by other members of the society according to the traditional laws and customs of the society deriving from before the Crown’s acquisition of sovereignty over the Australian territory. Thus, for present purposes, the most significant of the traditional laws and customs of an Aboriginal society are those which allocate authority to elders and other persons to decide questions of membership. Acceptance by persons having that authority, together with descent (an objective criterion long familiar to the common law of status) and self-identification (a protection of individual autonomy), constitutes membership of an Aboriginal society: a status recognised at the “intersection of traditional laws and customs with the common law”.
(Bold added; footnotes omitted)
In Aplin, after drawing the conclusion that “membership must be based on group acceptance” (see at [1214(260)] above), Dowsett J went on to consider what that concept entailed. After reviewing the lay and expert evidence in that matter, his Honour concluded (at [266]) that:
I am inclined to the view that a person who has not previously been recognized as being Waanyi must demonstrate that he or she identifies as Waanyi, either by assertion or by virtue of the way in which he or she conducts him- or herself. Living according to Waanyi laws and customs may be sufficient. When a person has one Waanyi and one non-Waanyi parent, it may be sufficient that the person has not chosen to abandon Waanyi identity. When a person is born of two Waanyi parents the question of self-identification may never arise. Only in this very wide sense, it is necessary to identify oneself as Waanyi or assert such affiliation.
That conclusion, in turn, led to the question: “Is Minnie recognised as a Waanyi person?
While his Honour had already concluded as a matter of fact that “during her life, Minnie identified herself as a Waanyi woman and asserted such affiliation” (see at [250]), he decided that he could not answer the above question because it was a matter for the Aboriginal group concerned to determine. Specifically, he said:
However the case really addresses the entitlement of Minnie’s descendants to Waanyi identity. That question depends upon group acceptance of each of them as being of Waanyi descent which question, in turn, depends primarily upon whether the present Waanyi people accept that Minnie was a Waanyi person. As the applicant asserts, the claim group must determine that question. To date they have refused so to recognize her. I cannot take that decision for them.
(Bold added)
For present purposes, a number of things follow from these decisions. First, a claim group is not, as the CB applicant appears to suggest (see at [1180(388)] above), a legal entity or construct established for the purposes of the NTA. To the contrary, a claim group comprises that group of Aboriginal persons who, “according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed” (see s 61(1) set out at [1212] above). As in Aplin, that necessarily requires that group to decide for itself whether a particular person or group of persons is accepted to be a member. Furthermore, it must do that according to its understanding, as a group, of the content of its traditional laws and customs, particularly those relating to membership. These are not, therefore, matters that can be authoritatively determined by anthropologists or lawyers according to the precepts of the Australian legal system, or by reference to the knowledge and understanding in the field of anthropology. This is not to say that, if a dispute arises about an aspect of those traditional laws and customs and the claim group cannot resolve it according to any dispute resolution process prescribed by those laws and customs, that that dispute may not be open to determination by this Court. Aplin demonstrates that there are avenues, albeit limited, where that may occur (see Aplin at [270] and, more recently, Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496 (Mortimer J) at [274]-[278]).
Returning to the CB applicant’s contentions above (at [1180]), while it is peripherally relevant to this issue, it is worth adding that the views of Professor Sutton, as adopted in the second paragraph of those contentions (see at [1180(389)]), are not, with respect, correct. The relevant purpose of a determination of native title under the NTA is to decide whether native title, as defined in s 223, exists in a particular area of land and waters. If it does, as mentioned earlier, those rights and interests are then “translated” by the determination into common law terms under the Australian legal system. However, it is not correct to say that the traditional laws and customs from which those rights and interests are derived are thereby completely destroyed. They continue to exist and their acknowledgement and observance by the common law holders continues in relation to the area where that native title is determined to exist.
Finally, it is difficult to know what to make of the third of the CB applicant’s contentions at [1179(390)] above. If the first sentence is intended to repeat the point made in the first sentence of its first contention (at [1180(388)]), it is, as noted above, expressing common ground. If, instead, it is intended to reflect the views of Professor Sutton in its earlier contention (at [1180(389)], then, for the reasons expressed above, it cannot be accepted. As for the second sentence, for the reasons expressed earlier, the “translation” referred to occurs once native title is determined to exist in relation to a particular area. However, that translation is not relevant to the description, or composition, of the native title claim group concerned.
In short, therefore, the CB applicant cannot rely on unreliable legal advice or insufficient anthropological research to explain away its equivocation with respect to the content of its traditional laws and customs. Plainly it may take advice from lawyers and anthropologists on the presentation of its case and on matters arising in relation thereto, but it is wrong, as Professor Sutton and the CB applicant appear to have assumed, to approach “Court determinations in other native title cases” as having some precedential value in the determination of the CB claim group’s traditional laws and customs, or to assume that, in making that determination, the CB claim group is required to “meet standards recognised by anthropological and legal authorities” (see at [775] and [781] above). Instead, in the circumstances of this matter, the authoritative determination of the content of the CB claim group’s traditional laws and customs is a matter over which it had complete authority and for which it is entirely responsible. All the more so where that determination potentially affected rights and interests in the “particular area” that comprises the claim area. For these reasons, I reject the CB applicant’s contentions to the contrary, including those at [1186] and [1201(a)] above and accept those of the State, including its contentions at [1163] and [1192(h)] above.
In a sense, the uncertainty surrounding the question whether there is a requirement under the traditional laws and customs of the CB claim group to identify with the name Wangan and/or Jagalingou is a minor matter compared to that concerning the second element mentioned above, namely the nature and content of the CB claim group’s membership rules and the related question whether an adopted person can gain rights in land as a member of that group. That element determines, among other things, a person’s access to whatever rights and interests in land may be held by the CB claim group. It is therefore, as Nettle J said in Love (see above at [1215]), albeit in a different but, I consider, analogous situation, one of the most significant traditional laws and customs of an Aboriginal society.
The summary of the CB applicant’s changes set out above (at [1160(b)]) shows that, over the history of the CB claim, its relevant membership rule has ranged from: cognatic descent, including by adoption; to bloodline or adoption and either or both patrilineal or matrilineal and either or both exogamous and endogamous; to a general reference to descent together with a statement that family groups are a primary idiom for mutual recognition between claimants; to the aforegoing together with an additional statement that the holding of rights is based on a broad form of descent reckoning and includes a degree of optation based on people’s histories of consociation with particular relatives; to the aforegoing together with a further explanatory statement that membership of the native title holding group is based on descent and on a person identifying with the country of the claim area and being accepted by others as being of and from the country of the claim area; to its final position that each person in the claim group is a member of one or more of the family or descent groups making up the claim group.
This array of descriptions of its basic membership rule is consistent with the range of views expressed by the CB applicant’s lay Aboriginal witnesses as summarised in the State’s submissions above (see at [1165]). On this aspect, I consider the countering excerpts advanced by the CB applicant are selective and unrepresentative (see at [1173] above). I also agree with the State that the CB applicant’s changes do not involve “minor tinkering” or are isolated to a small group within the CB claim group (see at [1162] and [1166] respectively). Instead, I agree with the State that they are emblematic of an absence of any normative effect.
That state of affairs is then compounded by the disagreement within the CB claim group about whether an adopted person can gain rights in land as a member of that group. The bounds of that disagreement are accurately summarised by the State and supported by the evidence to which it has referred (see at [1167] above). In this respect, I reject the CB applicant’s contention that such an important element of its traditional laws and customs can be characterised as a second order rule and left to individual families or members to decide (see at [1203] above). To the contrary, I agree with the State’s contentions that: “This in itself says that those laws and customs do not provide a regime that determines membership by normative principles under laws and customs. This amounts to saying that the laws and customs cannot be recognised as sustaining native title rights and interests” (see at [1171(c)] above).
As already observed, one consequence of these disagreements within the CB claim group is that the claim group has been unable to say with any certainty who its members are. The reverberating removals and reinstatements to its list of apical ancestors outlined earlier is one manifestation of this uncertainty. Another is reflected in the State’s submissions concerning those families who were known to the persons who were involved with the filing of the original claim in 2004, for example the McAvoys and Malones, but yet who were not included in the claim group until 2014 (see above at [1162]). To similar effect is the State’s submissions concerning Ms Delia Kemppi and Katy of Clermont (see above at [1168]). On this aspect, for the reasons set out above (at [1212]), I reject the CB applicant’s contention that it was sufficient if a “core” group of the claim group were involved throughout (see at [1201(b)] above).
This, in turn, presents a difficulty for the CB applicant’s contentions about kinship being the “glue” that holds the CB claim group together (see at [1181] above). It is difficult to see how that concept can be validly utilised where the members of the claim group are oblivious to other members who are being bound together in that group. The State is therefore correct in querying how the CB applicant’s coassociation rule could operate in such circumstances (see at [1168] above). Furthermore on kinship, I consider the State is broadly correct in its characterisation of the lay Aboriginal evidence on that topic (see at [1168] and [1192(f)] above). In this respect, I consider there is an important distinction to be drawn between the kinship relationship that exists in a social or family setting and that which exists among fellow members of a rights holding groups, or a cluster of such groups. The relevant relationship affecting the acknowledgement and observance of laws and customs giving rise to rights and interests in land is obviously the latter.
For all these reasons, had it been necessary to consider these issues concerning the current claim group, I do not consider that the CB applicant would have established that the CB claim group constitutes a normative society that is sufficiently organised as to create and sustain rights and interests in the land and waters of the claim area. That is to say, it is not united in and by a body of laws and customs the acknowledgement and observance of which could sustain such rights and interests.
This conclusion forecloses on any consideration of those of this group of issues which concern continuity or adaptation. That is so because, until such time as there is agreement within, and by, the CB claim group as to what its relevant laws and customs are, there is no opportunity to consider whether those laws and customs, insofar as they could give rise to rights and interests in land, were permissibly adapted from their traditional form or whether the members of that claim group have continued to acknowledge and observe them in that form, substantially uninterrupted, since effective sovereignty. Nonetheless, since the parties have devoted a large part of their written submissions to those issues, I will very briefly state why I consider the CB applicant also would have failed on those issues. That is most conveniently done by reference to the State’s contentions as summarised above.
First, I consider the State is correct in its contentions about the effect of the judgments in Wyman SJ, Croft and Narrier (see at [1198]-[1199] above). Those authorities relevantly establish that the continuity/connection inquiry is not confined to “fundamental or basic norms” but rather looks to the whole range of pertinent matters as dictated by the factual circumstances of each case.
Secondly, if that connection/continuity inquiry were to be conducted and if, in conducting it, the whole range of pertinent matters were to be reviewed, then adopting the assumptions in it as valid, including the assumption that the current CB claim group is united in acknowledging and observing the practices/customs/laws/rules set out therein, I consider the State’s table (see at [1200] above) would have demonstrated the CB applicant has not continued, substantially uninterrupted, since effective sovereignty to acknowledge and observe the traditional laws and customs of the relevant Aboriginal society that inhabited the claim area at that time.
Thirdly, and alternatively, even if that inquiry were confined to the three or four “elementary planks” advanced by the CB applicant, I consider that it would have failed to establish the reality of most, if not all, of those planks. First, its problems with establishing the kinship plank (see at [1187(a)] above) have already been discussed above (see at [1227]). Secondly, I consider its problems with respect to the spiritual connection plank (see at [1187(b)] above) are accurately summarised in the State’s contentions above at [1195] –[1196]. Thirdly, with respect to the communal ownership plank (see at [1187(c)]) above), I consider the State is correct to underscore the inherent contradiction between communally held rights and rights that are individually held and transmitted (see at [1171(a)] above). Finally, I consider the difficulties it has with respect to the inalienability plank (see at [1187(d)] above) are accurately summarised in the State’s contentions above at [1197].
Fourthly and finally, if the CB applicant’s cognatic descent rule were to be examined, again assuming that the current CB claim group were united in acknowledging and observing such a rule, I do not consider it would have been accepted as a permissible adaptation of the patrilineal descent rule that was acknowledged and observed by the relevant Aboriginal society that inhabited the claim area at effective sovereignty. On this aspect, I agree with the various difficulties associated with that rule identified by the State, including those at [1192(a)]- [1192(e)] above.
For these reasons, even if the CB applicant had established sufficient of the nine pre-sovereignty issues dealt with in the previous section (Section E) to justify a consideration of these issues concerning the current CB claim group, I consider it would have failed on these issues as well.
G. SUMMARY OF THE MAIN CONCLUSIONS IN EACH CLAIM – ISSUES 19 AND 23-24
To sum up, for the reasons set out above, my main conclusions with respect to the CB claim include that:
(a)the CB applicant cannot rely upon the findings it claims were made, or the evidence ostensibly relied on, in the nine consent determinations upon which it sought to rely (see at [266] above);
(b)the CB claim group has failed to establish that the ancestors of its members comprised a society at effective sovereignty which acknowledged and observed traditional laws and customs giving rise to rights and interests in the land and waters of the claim area (see at [1139] above);
(c)even if the CB applicant had established (d) above, it would have failed to establish that its current claim group constituted a normative society that is united in and by a body of laws and customs the acknowledgement and observance of which could sustain such rights and interests (see at [1228] above).
Further, with respect to the J#3 claim, my main conclusions include that:
(a)with the exception of the limited matters that were determined in rem, the J#3 applicant cannot reply upon any of the matters it claimed: were determined; or were the subject of findings; or were supported by the evidence; in McLennan (at [265] above);
(b)as well, the J#3 applicant cannot rely upon any of the findings it claims were made, or the evidence ostensibly relied on, in any other consent determinations upon which it sought to rely (see at [266] above);
(c)the J#3 applicant has failed to adduce lay Aboriginal evidence which is representative of the J#3 claim group, or the Jangga people, such as to establish that, as a group of people, it continued to acknowledge and observe traditional laws and customs from which rights and interests in the J#3 claim area were derived (see at [882] above);
(d)the J#3 claim group has failed to establish that any rights holding group within its society at effective sovereignty held rights and interests in any defined part of the J#3 claim area under the traditional laws and customs of that society (see at [1096]-[1101] above).
It follows that the separate questions posed in each of these claims must be answered in the negative as set out near the outset of these reasons (see at [6]).
I certify that the preceding one thousand two hundred and thirty-seven (1237) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves. Associate:
Dated: 23 December 2021
Schedule A
SCHEDULE OF PARTIES
QUD 25 of 2019 Respondents
Fourth Respondent:
CENTRAL HIGHLANDS REGIONAL COUNCIL
Fifth Respondent:
ISAAC REGIONAL COUNCIL
Sixth Respondent:
ERGON ENERGY CORPORATION LIMITED
Seventh Respondent:
TELSTRA CORPORATION LIMITED
Eighth Respondent:
AUSTRALIA PACIFIC LNG PTY LIMITED
Ninth Respondent:
BLAIR ATHOL COAL PTY LIMITED
Tenth Respondent:
CLYDE IAN DOXFORD
Eleventh Respondent:
HANCOCK COAL PTY LTD
Twelfth Respondent:
HANCOCK GALILEE PTY LTD
Thirteenth Respondent:
HANCOCK KEVINS CORNER PTY LTD
Fourteenth Respondent:
QUEENSLAND COAL PTY LIMITED
Fifteenth Respondent:
PETER VINCENT SHEVILL
Sixteenth Respondent:
VALE COAL EXPLORATION PTY LTD
Seventeenth Respondent:
BELLEVUE PASTORAL PTY LTD
Eighteenth Respondent:
EVAN BENNEY
Nineteenth Respondent:
CHUDLEIGH PARK CATTLE CO PTY LTD
Twentieth Respondent:
BRUCE RAYMOND COBB
Twenty-First Respondent:
SAMANTHA ELIZABETH COBB
Twenty-Second Respondent:
CREEK FARM PTY LTD
Twenty-Third Respondent:
ALLISON GLENDA FINGER
Twenty-Fourth Respondent:
STEVEN WILLIAM FINGER
Twenty-Fifth Respondent:
TREVOR DAVID GOODWIN
Twenty-Seventh Respondent:
LOGAN CREEK PTY LTD
Twenty-Eighth Respondent:
MEXICO GAZING CO PTY LTD
Twenty-Ninth Respondent:
RAYE MARILYN O’SULLIVAN
Thirtieth Respondent:
ROBERT ALAN O’SULLIVAN
Thirty-First Respondent:
PRETTY PLAINS PTY LTD
Thirty-Second Respondent:
JOANNE MARY SALMOND
Thirty-Third Respondent:
JOSEPHINE BARBARA SALMOND
Thirty-Fourth Respondent:
GEOFFREY THOMAS SCHARF
Thirty-Fifth Respondent:
PATRICK JOHN SCHARF
Thirty-Sixth Respondent:
TERESA MONICA SCHARF
Thirty-Seventh Respondent:
DAVID ALBERT SCOTT
Thirty-Eighth Respondent:
SEDGEFORD PASTORAL COMPANY PTY LTD
Thirty-Ninth Respondent:
AINSLIE BRUCE MCKENZIE TEMPLETON
SCHEDULE OF PARTIES
QUD 25 of 2019 Respondents
Fourth Respondent:
ERGON ENERGY CORPORATION LIMITED
Fifth Respondent:
TELSTRA CORPORATION LIMITED
Sixth Respondent:
ADANI MINING PTY LTD
Seventh Respondent:
BLACKWOOD EXPLORATION PTY LTD
Eighth Respondent:
CARMICHAEL RAIL NETWORK PTY LTD
Ninth Respondent:
GS COAL PTY LTD
Tenth Respondent:
SCORPION ENERGY PTY LTD
Eleventh Respondent:
HANNIGAN & ASSOCIATES PTY LIMITED
Twelfth Respondent:
VALE AUSTRALIA GALILEE PTY LTD
Thirteenth Respondent:
WILLIAM DALE APPLETON
Fourteenth Respondent:
ANDREW ALAISTAIR BASSINGTHWAIGHTE
Fifteenth Respondent:
BRUCE RAYMOND COBB
Sixteenth Respondent:
SAMANTHA ELIZABETH COBB
Seventeenth Respondent:
DAVID PATRICK CONACHAN
Eighteenth Respondent:
LAGLAN PASTORAL COMPANY PTY LTD
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