Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland (No 5)
[2023] FCA 135
•27 February 2023
FEDERAL COURT OF AUSTRALIA
Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland (No 5) [2023] FCA 135
File number: QUD 9 of 2019 Judgment of: MORTIMER J Date of judgment: 27 February 2023 Catchwords: NATIVE TITLE – separate questions – two uninhabited islands in the Torres Strait – shared ownership claim by three groups – objection to shared claim as not representing situation under traditional law and custom – consideration and application of earlier decision in Akiba on behalf of the Torres Strait Regional Seas Claim Group v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1 – whether one native title held jointly or two different native titles – finding that only two of the three groups hold native title in the two islands – native title found to be held jointly by the two groups Legislation: Evidence Act 1995 (Cth) s 53
Native Title Act 1993 (Cth) ss 61, 86(2), 223, 253
Seas and Submerged Lands Act 1973 (Cth)
Land Act 1962 (Qld)
Cases cited: Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth [2013] HCA 33; 250 CLR 209
Akiba on behalf of the Torres Strait Regional Seas Claim Group v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1
Akiba on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 4) [2008] FCA 1446
Banjima People v State of Western Australia [2015] FCAFC 84; 231 FCR 456
David on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2022] FCA 1430
Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350
Griffiths v Northern Territory of Australia [2007] FCAFC 178; 165 FCR 391
Kaurareg People v State of Queensland [2001] FCA 657
Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1
Manas v State of Queensland [2006] FCA 413
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422
Mualgal People v State of Queensland [1999] FCA 157
Nona v State of Queensland [2005] FCA 1118
Nona and Manas v State of Queensland [2006] FCA 412
Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578
Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983
Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland [2020] FCA 1353
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442
Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 1039 Date of hearing: 6-22 October 2021, 18-22 July, 10-14 October 2022 Counsel for the applicant Mr R Blowes SC with Ms S Phillips Solicitor for the applicant P&E Law Counsel for the first respondent: Ms N Kidson KC with Mr M McKechnie Solicitor for the first respondent: Crown Law Queensland Counsel for the second respondent: The second respondent did not appear Counsel for the third to seventh respondents: Mr A McAvoy SC with Mr A Smith Solicitor for the third to seventh respondents: Jaramer Legal Counsel for the intervener: Ms R Webb KC Solicitor for the intervener: Australian Government Solicitor ORDERS
QUD 9 of 2019 BETWEEN: TITOM NONA ON BEHALF OF THE BADULGAL, MUALGAL AND KAURAREG PEOPLES
Applicant
AND: STATE OF QUEENSLAND
First Respondent
TORRES SHIRE COUNCIL
Second Respondent
ALBERT BOWIE (and others named in the Schedule)
Third Respondent
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Intervener
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
27 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The questions reserved for consideration be answered as follows:
Question (a)
(a)But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, lands and waters of the claim area?
Answer
Yes, native title exists in all of the claim area.
Question (b)(i)
(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 the native title?
Answer
The persons who hold the native title referred to in the answer to question (a) are the group members of the Badulgal and Mualgal Peoples, such group membership being determined in accordance with their traditional laws and customs.
Question (b)(ii)
(b)In relation to that part of the claim area where the answer to (a) above is in the affirmative:
…
(ii) what is the nature and extent of the native title rights and interests?
Answer
The Badulgal and Mualgal Peoples hold a single native title over the claim area, in the same way as they do over the islands in the determination in Nona and Manas v State of Queensland [2006] FCA 412.
The native title rights and interests are exclusive in nature.
2.The proceeding be listed for case management hearing in the week commencing 3 April 2023, at a date and time to be fixed in consultation with the parties.
3.On or before 4.00 pm (AEDT) two (2) working days before the case management hearing, the parties are to propose orders to give effect to the Court’s reasons for judgment dated 27 February 2023, including any proposed order relating to how the native title rights and interests in the claim area should be described in any determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
INTRODUCTION AND SUMMARY
[1]
ACKNOWLEDGMENTS
[19]
STRUCTURE OF THESE REASONS
[22]
TERMINOLOGY
[26]
Names used to identify the people of various home islands
[28]
Names for Kaurareg islands
[33]
Spellings
[34]
‘Islander’
[46]
Language terms
[51]
Names of claimants and their ancestors
[66]
Colonisation
[67]
“PROVING” NATIVE TITLE EXISTS AND SHOULD BE RECOGNISED
[68]
EVIDENCE RELIED UPON
[76]
Claim group members: the applicant
[81]
Father Paul Tom
[84]
Thomas Ned Savage
[88]
Enid Tom
[91]
Eliziah Wasaga
[94]
Naton Nawia
[97]
Nazareth Adidi
[101]
Flora Warria
[103]
Opeta James Kaitap
[107]
Alick Seriba Tipoti
[109]
Geiza Stow
[111]
Troy Laza
[114]
Titom Nona
[115]
The Badulgal respondents’ lay witnesses
[117]
Ronnie Nomoa
[117]
George Henry Nona
[120]
Wolfgang Samat Victor Laza
[123]
Walter Tamwoy
[126]
Tommy Willie ‘Dinto’ Tamwoy
[129]
The view
[132]
Expert evidence
[138]
Ray Wood
[139]
Key opinions
[140]
Dr Kevin Murphy
[142]
Key opinions
[143]
Dr Garrick Hitchcock
[148]
Key opinions
[150]
Daniel Leo
[153]
Key opinions
[155]
Some general findings about the expert evidence and my approach
[160]
Evidence from Akiba
[172]
Documentary evidence
[176]
RIGHTS IN HOME OR INHABITED ISLANDS, RIGHTS IN UNINHABITED ISLANDS AND RIGHTS IN THE SEA: THE UNIQUENESS OF THE TORRES STRAIT
[186]
THE ROLE OF PREVIOUS LOCAL DETERMINATIONS IN ANSWERING THE SEPARATE QUESTIONS
[203]
Mualgal determinations
[211]
Badulgal determinations
[225]
Kaurareg determinations
[229]
The first ‘shared islands’ determination
[233]
The second ‘shared islands’ determination
[238]
THE ROLE OF EVIDENCE, FINDINGS AND REASONING IN AKIBA
[247]
A brief description of Akiba
[250]
Parties’ contentions about the relevance of Finn J’s findings to the separate questions
[268]
The way the parties ultimately sought to use Akiba
[275]
Finn J’s findings about sharing of areas between communities
[281]
A notable omission from the Akiba evidence
[290]
The evidence of relevant witnesses from Akiba
[292]
Father John Manas
[292]
Walter Nona
[327]
Tom Jack Baira
[366]
Lillian Bosun
[386]
Alick Tipoti
[409]
Sophie Luffman
[429]
Conclusion regarding the Akiba evidence
[432]
MATTERS THE COURT NEED NOT DECIDE
[441]
Sunswit
[442]
“Society” and native title in this proceeding
[455]
Can there be exclusive possession where there are two overlapping native titles
[473]
My conclusion
[479]
APPROACH TO ASPECTS OF THE EVIDENCE
[481]
Looking at the evidence about Warral and Ului separately
[482]
The historic starting point
[485]
The pre-colonisation material
[487]
The relevance of the 2015 mediation in this proceeding
[500]
Relevance of ‘Coming of the Light’
[515]
The Aidan Laza map
[526]
EARLIER CONNECTION REPORTS
[549]
Badulgal
[552]
Mualgal
[569]
Kaurareg
[598]
WHAT IS THE SOURCE OR ORIGIN OF RIGHTS FOR KAURAREG IN WARRAL AND ULUI?
[642]
Claimant evidence
[644]
Reliance on ancestral occupation
[644]
Reliance on the Waubin myth
[658]
Expert evidence
[663]
Conclusion on source or origin
[691]
The application of the Waubin narrative to Warral and Ului
[709]
Pithalai: Warral
[710]
Ului
[750]
PERMISSION
[762]
THE DEBATE OVER OCCUPATION AND USE
[788]
THE EVIDENCE ABOUT GARDENS
[810]
Applicant evidence about gardens and my findings about it
[828]
Expert evidence
[846]
My conclusions
[858]
BURNING
[867]
Claimant evidence
[867]
Other source materials about burning
[877]
WARFARE AND ITS ROLE PRE-COLONISATION, IF ANY, IN ACQUIRING RIGHTS AND INTERESTS IN LAND
[880]
THE SHARED ISLANDS DETERMINATIONS
[892]
Claimant evidence about the Badulgal and Mualgal shared islands, especially Dadalai
[895]
Expert evidence
[901]
My conclusions
[912]
QUESTION (A): DOES NATIVE TITLE EXIST?
[918]
Resolution
[919]
QUESTION (B)(I): WHO ARE THE PERSONS, OR GROUPS OF PERSONS, HOLDING THE NATIVE TITLE?
[920]
The parties’ positions in summary
[922]
General overall findings
[928]
Findings which pertain especially to the Kaurareg People
[935]
Pre-colonial sailing routes
[942]
Pre-colonial interaction between Badulgal and Kaurareg
[956]
Inconsistency with other determinations
[959]
The exclusivity of the way Kaurareg frame their assertions of native title
[961]
Conclusion on these Kaurareg-specific matters
[964]
Who has native title in Warral
[965]
Who has native title in Ului
[1003]
QUESTION B(II): WHAT IS THE NATURE AND EXTENT OF THE NATIVE TITLE?
[1028]
My conclusions
[1033]
OVERALL CONCLUSION
[1039]
ATTACHMENT 1
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ATTACHMENT 2
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ATTACHMENT 3
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ATTACHMENT 4
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INTRODUCTION AND SUMMARY
The Court’s orders and reasons arise from separate questions stated by the Court about two islands in the Western Torres Strait, Warral and Ului. There is presently a claim under s 61 of the Native Title Act 1993 (Cth) over these islands, on behalf of three groups. The claim is made on the basis that the native title to those islands is a shared title between the three groups, either as members of one “society” or (alternatively) as members of two “societies” which have under their customary laws shared the islands, since before colonisation. Those groups are the Badulgal, Mualgal and Kaurareg Peoples. In these reasons, I will describe this as the shared ownership claim.
Since March 2020 there has been a challenge to the shared ownership claim, by five Badulgal men. They were joined as respondents to the shared ownership claim. Mediation has not been able to resolve the different views.
What has happened in this proceeding in some ways reflects the tragedy of having to recognise native title by fitting it into the straitjacket of Anglo-Australian law as reflected in the NTA, and the realities for First Nations peoples today in finding a way through that system. Eliziah Wasaga, a Kaurareg man, summed up in his evidence the long struggle and the tensions imposed by the native title system:
And so much has changed over the years that laws have changed. And, you know, when Mabo came into the sea it put a lot of effect on everybody. And it was only a case that was for, you know, Mer Island. But then that ricocheted globally. So, by giving power back to indigenous people, it was like a threat.
But all we wanted to do was just to manage our country and have rights to practise our – and exercise our cultural rights, you know? So – but also an identity factor because we’d identify ourselves as the Aboriginal people of this region and, you know, it’s been such a long, you know, struggle, because somebody gets into power and the policy changes. We’re governed by policy. It’s always hard. So the more we talk about policy, policy, our law is starting to, you know, get distance. And it’s not fair on our future generations. So we need to be, you know – we need to get all parties together. Let’s talk. And that’s proper way.
I have said this at the start of the reasons to emphasise that the Court is conscious of the tensions, and the apparent unfairness, the native title system can impose on First Nations peoples. The legal transformation wrought by Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 set Australia on a path towards recognising that land and waters on this continent have always belonged to First Nations peoples. The path is far from complete. And it can be torturous.
As all parties to the separate question proceeding acknowledged, the Court must decide not only whether the applicant has proven its case of shared ownership, but, if not, must also decide what the evidence establishes on the balance of probabilities is the correct answer to the separate questions about who has native title in Warral and Ului. If the Court finds the applicant has not discharged its burden of proof on the shared ownership claim, that does not mean the Court must dismiss the native title application. All parties accept that the Court should decide whether it is more likely than not that one or more of Badulgal, Mualgal or Kaurareg hold native title over Warral and Ului. All parties accept that the islands belong to one or more of these groups, and not to anyone else. The questions the Court must answer have been structured to allow for this possibility.
That said, the purpose of these separate questions is no wider than Warral and Ului. Given the state of claims and determinations in the Torres Strait and Northern Cape York region under the NTA, especially in the Western Torres Strait, I consider it is important the Court does not go further in its findings than is necessary to answer the questions posed and resolve the dispute over Warral and Ului. While some of the findings in these reasons may affect, or be seen to affect, other claims yet to be resolved, the Court’s findings are based on the evidence before it and the submissions made, all of which have been directed at what are narrower and different issues than those which may arise in some of the other claims.
The claim area tracks the land masses of Warral and Ului closely, but includes small islets along the north-western coast of Ului, as well as some beaches, and perhaps parts of sandbanks and reefs adjacent to each of those islands, but only as far as the mean high-water mark at spring time. Thus, it is treated as principally a claim to land, and not to the sea, nor to reefs below the mean high-water mark at spring time, a matter which is important to remember when reading the Court’s reasoning. Maps of Warral and Ului showing the claim area are at attachment 1 and attachment 2 to these reasons, respectively. These maps were tendered as agreed maps by the parties.
Native title in the sea around Warral and Ului – that is, areas below the mean high water mark at spring tide – has not been recognised yet under the NTA. Native title in the sea has been recognised in a significant area north of the claim area, under what was called the Torres Strait sea claim: Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth [2013] HCA 33; 250 CLR 209; Akiba on behalf of the Torres Strait Regional Seas Claim Group v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1. The separation of the Torres Strait sea claim, which occurred during the trial of Akiba, into a Part A and a Part B claim, assumes some significance in this proceeding.
What was described as the Part B sea claim, and includes the sea around Warral and Ului, and the sea between those islands and Badu and Mua, and between Warral and Ului and the Kaurareg home islands, has not been determined. The Part B sea claim, and a number of other unresolved and partly overlapping sea claims, and one terrestrial claim, are currently being managed together with this proceeding (see Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983 at [11]).
On 30 November 2022, native title was recognised by this Court in a large area of sea country mostly to the east of the current claim area, including large parts of the Part B sea claim. However, the sea around Warral and Ului, and indeed all of the sea in the western part of the Part B sea claim, was excluded from this determination, principally because of this current proceeding: see David on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2022] FCA 1430.
The first native title claim over Warral and Ului was filed on 4 March 2002 and eventually became this proceeding, QUD9/2019. Initially, the claim was made only on behalf of the Badulgal People. The Akiba claim had been filed in November 2001. In March 2002 a number of the home island and shared islands claims in the Western Torres Strait were filed within a few days of each other. On 28 November 2003, three Kaurareg respondents were joined to the (then) Badulgal claim over Warral and Ului. That joinder was on the basis that Kaurareg People asserted native title in the islands. This was consistent with the claims made by the Kaurareg People in Akiba to the sea extending north from their home islands and into the area of the sea between Warral and Ului, and Badu and Mua. No Mualgal people had sought to be joined as respondents at this point, but their assertion of interests in the islands was well understood in the region. Over the next decade or so, the home and shared islands claims were resolved, and the Akiba claim was litigated. The claim over Warral and Ului was not resolved.
On 17 March 2014, Greenwood J referred representatives of the Badulgal, the Mualgal and the Kaurareg Peoples to mediation in an attempt to resolve these disputes. As I noted in Nona at [13]-[15], this mediation was held in February 2015. The outcomes of the mediation included an agreement to amend the application and replace the applicant so as to reflect the shared ownership claim. In these reasons I will describe this as the 2015 agreement. The amended claimant application and the replacement of the applicant was authorised in February 2020, and the amended claim was certified by the Torres Strait Regional Authority in April 2020. It was the authorisation process that prompted the formal expression of disagreement from some within the Badulgal community.
On 4 March 2020, an interlocutory application was filed in this Court seeking orders to join five Badulgal men as respondents to this proceeding (the Badulgal respondents). The Badulgal respondents contended that under customary law, the islands of Warral and Ului were in the exclusive domain of the Badulgal, and the 2015 agreement and consequent shared ownership claim were wrong, and would lead to the diminishment of the Badulgal’s customary rights in favour of the Mualgal and Kaurareg Peoples.
On 15 July 2020, for the reasons set out in Nona, this Court granted leave to replace the applicant so that members of each of the three groups constituted the applicant, and leave to the newly constituted applicant to amend the s 61 application to make the shared ownership claim. The Court also granted the Badulgal respondents’ application for joinder.
The separate questions were stated in Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland [2020] FCA 1353 (Nona (No 2)). The active parties on the separate question hearing were the applicant, the State, the Commonwealth and the Badulgal respondents.
The wider regional area of the Western Torres Strait, as relevant to the evidence on the separate questions, can be seen in the agreed map at attachment 3, tendered in the separate question proceeding.
The separate questions were set out in full in paragraph 1 of the orders made by the Court in Nona (No 2):
Pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth), the following questions are to be determined separately from any other questions in the proceeding (including questions arising under s 225(c), (d) and (e) of the Native Title Act 1993 (Cth) (the NTA)):
(a)but for any question of extinguishment of native title, does native title exist in relation to any and, if so what, lands and waters of the claim area?; and
(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 the native title?; and
(ii)what is the nature and extent of the native title rights and interests?
All parties agreed this form of questions enabled the Court to make findings, and a determination of native title, on a basis other than the one in the shared ownership claim. For the reasons set out below, the Court has found native title exists in all of the claim area, and it is held by the Badulgal and Mualgal Peoples.
ACKNOWLEDGMENTS
This trial has been challenging in terms of logistics. All parties, their witnesses and supporters, their legal representatives, the relevant representative bodies (TSRA and then Gur A Baradharaw Kod Sea and Land Council Torres Strait Islander Corporation) and their staff, have worked cooperatively and positively to make each stage of the trial run as smoothly and efficiently as it could. Careful attention has been paid by the TSRA and GBK to ensuring that members of the three communities could attend the separate question hearing. The Court expresses its gratitude to them all. The Court is grateful to the communities of each of Waiben, Mua and Badu for their warm hospitality during the conduct of the hearing. I express my personal gratitude to my Associates at various stages of the trial – Rosie Cham, Ganur Maynard, Michael McArdle and Sophie Ward, to Judicial Registrar Simon Grant and his assistant Melinda Carr, to the Court’s remote hearing officers Neil Warner and Jared Lane, and to Dave Oldland and Merryl Alexander from Transcript Australia. I also thank Wendy Chen, who provided proofing assistance over the weeks leading up to today. The Court is grateful to the owners and staff at the Cairns Business Hub (formerly known as the iiHub) for providing a culturally appropriate, comfortable and welcoming venue for the Cairns-based parts of the hearing.
The Court also extends its sincere gratitude to Mr Cyril Repu, from Mabuiag, who acted as an interpreter for the lay witnesses where required. This was an important and difficult undertaking, that required skill and concentration. Mr Repu performed his task with good humour and patience, affording respect to all witnesses, and the Court is grateful to him.
The Court acknowledges the cooperative and good natured way in which all legal representatives conducted the trial. Lastly, as I said on several occasions during the trial, the Court is conscious this proceeding has been very difficult at a deeply personal level for members of the three communities, and especially for witnesses. All conducted themselves with great respect and dignity for the most part. The Court is grateful for the respect and restraint shown by all those who participated in or observed the conduct of this proceeding.
STRUCTURE OF THESE REASONS
These reasons commence with some matters of terminology. I then describe in brief terms the adversarial context for this proceeding and what it means for how the Court decides the answers to the separate questions. Next, I set out a summary of the evidence relied upon, and introduce all of the lay and expert witnesses who gave evidence. The documentary evidence was voluminous, and I give no more than a brief summary of the categories of documentary evidence before the Court. Where it is material to my findings, I refer to the documentary evidence later in my reasoning. Next, I turn to a conceptual matter which informs the overall approach I have taken, and the conclusions I have reached. A number of essentially historical factual matters must then be explained, especially about previous native title determinations in the region.
I then turn to some matters which involve some questions of law, and which are material to answering the separate questions. In this section, I work through in detail my findings about the nature and significance of the lay evidence given in Akiba. I also explain the matters I do not consider the Court needs to, or should, decide, even though some of them were the subject of submissions by one or more of the parties. Next, I explain my approach to some of the factual issues, and my approach to various categories of the evidence.
The final section of the reasons sets out my principal factual findings. There are two parts to that section. First, I set out my approach to, and findings on, certain factual matters that arose during the trial, each of which informs my reasoning on the key disputed questions of fact and the answers to the separate questions.
Second, I then turn to making ultimate factual findings necessary to the determination of the answers to the separate questions, on which the parties’ respective cases and submissions concentrated, and explain my answers to the separate questions.
TERMINOLOGY
In the terminology used in these reasons I have tried to be faithful to the lay evidence in particular, because that is the language used by the native title claimants themselves.
Some terms and descriptions are unavoidable, even though they carry the baggage of colonisation. For example, Eliziah Wasaga reminded the Court in his evidence that to identify as a “Torres Strait Islander” involves the use of a settler name, Torres.
Names used to identify the people of various home islands
In his supplementary report, Mr Ray Wood, one of the anthropologists called on behalf of the applicant, explains the usage of prefixes and suffixes to identify members of different home island groups. At [17]-[20] he explains:
Turning to Torres Strait social group nomenclature, group names consist of a stem and suffixes, the stem being either:
(i) the name of a home island; or
(ii) the personal name of a notable mythological figure.
To this is added a combination of suffixes which together mean ‘(people) of/belonging to/owners of’ that island or mythological figure. Original dialect variation is largely lost and the forms of the combinations are now standardized as -laig/-raig (singular or small group) and -lgal (mass plural, communal). The names denote not merely residence on an island, but ownership of it (see below). I note in the transcript that the Court is already familiar with Badulaig/Badulgal and Mualaig/Mualgal, and other examples are Purmalgal and Saibailaig, based on the home island names Badu, Mua, Purma (Poruma), and Saibai respectively.
Differing from these cases, the stem of the name now long written as ‘Kaurareg’ is not a placename, but derives from Kauraru, one of the names of the hero Waubin, and derived from kaura ‘bird (sp.),’ which in one version of the Waubin myth animates a headless body which grows into the giant body of Waubin. The origin of the name is thus a reference to the people of Kauraru alias Waubin. The Kaurareg were also often referred to by others as the Muralag people, after their core home island, a usage which Haddon and others before him picked up and followed.
‘Kaurareg’ is not the only group name based on that of a mythological personage. There is also the Central Islands name Kulkalaig/Kulkalgal, in which the stem Kulka is the personal name of a focal mythological hero Kulka from Cape York Peninsula who travelled through the Central Islands and settled at Aurid. The Central Islanders are called Kulkalgal after him. During the hearing Alick Tipoti (T849-15), Badhulaig, referred to the Kulkalgal (the transcript’s ‘Kulkulku’ at T673.15) as the Central Torres Strait Islands as still current usage.
A somewhat hybrid case is Goemulgal (aka Gumulgal), the stem of which is a placename on Mabuiag, Goemu, but also a reference to the mythological hero Kwoiam, for Goemu is the site where Kwoiam made his home, as Sydney Ray, a member of the Haddon expedition was told at Mabuiag (Haddon 1904:2). Goemulgal thus was often used as an indirect identifier of the Mabuiag people, and a higher level, Mabuiag and Badu together, as the people of/associated with Kwoiam. Wilkin (1904:286) observes that “Badu counted for all practical purposes as part of Mabuiag,” and at other points he and others use the name Goemulgal/ Gumulaig as a collective one for the Badu and Mabuiag people as single community, as in the passage I cite in Wood 2022 at [52].
(Footnotes omitted.)
When in these reasons I am describing the wider group of people from a particular home island, I use the terms Badulgal, Mualgal and KauraregPeople.
For the people of Mabuiag, the island to the north of Badu, which features in the evidence at various points, some lay witnesses use the term Gumulgal, which is the term used by another of the applicant’s experts, Dr Murphy. However, other lay witnesses use Mabuiagulaig or Mabuiag People. In these reasons, I refer to the people of Mabuiag as the ‘Mabuiag People’.
There are English names for Warral and Ului which appear in some of the material, but which I otherwise do not use in these reasons. Dr Murphy in his 2015 connection report for Warral and Ului at [44] explains how these English names were assigned:
Ului was named West Island by Bligh in 1789, but he sighted it at a distance of 3 or 4 leagues (9-12 nautical miles) from the south by his own reckoning, and did not land there. Waral was named Hawkesbury’s Island by Edwards in 1791, but like Bligh with Ului, he named it from a distance and did not land there.
(Footnotes omitted.)
Dr Murphy repeated this explanation at [66] of his amended report in this proceeding.
Names for Kaurareg islands
The home islands of the Kaurareg People often remain identified by names given after colonisation. I have attempted in these reasons to use the Kaurareg names for their islands. Thus, I have used Waiben for Thursday Island, Ngurapai for Horn Island, Kirriri for Hammond Island and Muralag for Prince of Wales Island.
Spellings
Where words are given different spellings in either the source materials, lay or expert evidence, or in prior judicial decisions, I have generally chosen the spellings consistent with prior judicial decisions.
There are various spellings for the names of some places. Mabuiag is spelled Maubiag in Dr Powell’s 1998 report. Ngurapai is spelled Ngurupai in Michael Southon’s 1997 report and by Drummond J in the Kaurareg determinations (Kaurareg People v State of Queensland [2001] FCA 657). Kirriri has sometimes been spelled as Kerriri in the academic documents tendered in evidence and appears as Kiriri in Mr Ray Wood’s 2022 report. Muralag has been spelled Murulag in previous decisions in this Court. For each of these place names, in these reasons I have used the spellings bolded above.
Warral is often spelled Waral. In Attachment 1 to Akiba it is spelled with one ‘r’. In his 2015 connection report, Dr Murphy spelled it as ‘Waral’ and Mr Wood also uses that spelling in his expert report. In the written outlines of evidence by lay witnesses filed by the applicant and respondents in this proceeding, however, ‘Warral’ is used. In these reasons, I have used ‘Warral’.
The island of Mua is sometimes spelled “Moa” in the materials. In his 2020 report, Dr Hitchcock states:
Mua is the correct language name for Moa Island, and the island is referred to as such throughout this report (see Powell 1998:4).
In these reasons I use ‘Mua’. That is also the spelling used in Akiba.
The name of the island(s) just to the north of Warral (on the map at attachment 1, shown as two main land forms), Sunswit, was often spelled differently in the material before the Court (as Sansuit, Sunsuit, or Sanswit). On the tendered maps, the spelling used is “Sunswit”, so I have adopted that spelling. I have also used the singular, as all the evidence did, even if geographically there may appear to be more than one landform on the agreed maps.
Muknab Rock, which is located to the south of Mua and east of Warral, is spelled in Akiba as “Mokanab”, on the map in map 7 of exhibit A1 as “Mukanab” and in the prior decision Manas v State of Queensland [2006] FCA 413 as “Muknab”. I have used ‘Muknab’.
Murabar or Murbayl, identified by the English name of Channel Island, was covered by the 2006 Mualgal determination (see [213] below), along with Muknab.
The spelling for the names of historical and mythological figures sometimes varies. The hero Kwiam is spelled Kwoiam in Akiba and is spelled in other sources as Kuiam. I have used ‘Kwiam’ in these reasons, as this is the spelling that accords with the lay witness evidence given in this proceeding.
There are various spellings for a central Kaurareg figure, Pithalai. Across a number of sources, his name is variously spelled Pithulai, Pihulai, Puthulai, Pitalai and Pithulay. I have used ‘Pithalai’ in these reasons, according with the lay evidence given in Akiba.
The Badulgal apical ancestors Waii and Sobai are referred to by various spellings in sources as Wai and Sorbai. I have used the ‘Waii’ and ‘Sobai’ spelling, as that accords with the spelling in the written outlines of evidence by the lay witnesses in this proceeding.
The people of Naghir have been referred to by the variants Kulkalgal, Kulkalagal, Kukalgal and Kulkulgal (see, for example, the 1997 Southon report and Mr Wood’s supplementary report). I have used ‘Kulkulgal’, as this spelling accords with the spelling used in Akiba.
‘Islander’
In Akiba, Finn J used the term “Islander” and “Islanders” to refer to the members of the 13 communities in the Torres Strait who comprised the claimants in Part A.
In his Honour’s reasons, Finn J generally distinguishes between “Islanders” and “Pacific Islanders”, and sometimes uses the term “Torres Strait Islanders”. As I read the reasons, his Honour uses “Islanders” as a shorthand for “Torres Strait Islanders”. As his Honour acknowledges at [182], “Torres Strait Islanders” is a term defined in s 253 of the NTA as “a descendant of an indigenous inhabitant of the Torres Strait Islands”. The term “Torres Strait Islands” is not defined in the NTA. In attachment 1 to Akiba, Finn J lists the islands, islets, cays and reefs of the Torres Strait that are within the claim area, with their language and English names. His Honour includes the Kaurareg home islands such as Kirriri, Ngurapai, and Waiben, as well as Warral and Ului.
In discussing the parties’ alternative conceptions of “society” for the purposes of their arguments in Akiba, at [175] his Honour says:
During the hearing of this matter I directed the applicant to provide “a plain English description of the different possible societies” which could support the claims made by it. Five such societies were identified. They were, in descending order of scale and put in short form (omitting genealogical qualifications):
(i)the larger regional society which extends from the southern mainland coast of Papua New Guinea where it includes some people of that area; it includes all Torres Strait Islanders (including Kaurareg, whether or not they regard themselves as Torres Strait Islanders); and extends to the northern coast of Cape York Peninsula where it includes some people of that area.
(ii)the one society which is that body of persons who are Torres Strait Islanders, whether or not including Kaurareg — this is the applicant’s society though it does not disavow a larger regional society;
(iii)the two language groups, Eastern and Western — a grouping the applicant attributes to Haddon;
(iv)the Torres Strait Islanders of four regional cluster groups of islands — the Commonwealth’s societies; and
(v)the Torres Strait Islanders of each, several, inhabited island — the State’s societies.
(Original emphasis, citations omitted.)
It is tolerably clear, in my opinion, that at many points in his Honour’s reasons, Finn J uses the term “Islanders” inclusively of Kaurareg People, but not of any mainland peoples such as Gudang. See, for example, the narrative about governmental regulation at [45]-[50], which expressly includes Kaurareg.
I do not use the term ‘Islander’ very often in these reasons, although it is used frequently in the source material I extract. I do use ‘Torres Strait Islanders’ and I do so without positively excluding or including the Kaurareg People. I accept this is a sensitive issue. The evidence in this proceeding conveyed the strong Kaurareg self-identification as Aboriginal People rather than Torres Strait Islanders, notwithstanding close and sometimes multiple kinship connections with the Torres Strait, but this is not a matter I need make any findings about, and I make none.
Language terms
A number of language terms will be used throughout these reasons, being unique concepts that are best expressed in their original terminology. I provide an explanation of them below.
Sarup – Many witnesses spoke of sarup. It was and remains a lived experience, and a lived apprehension about having to travel across the sea. Sarup denotes the state of being “stranded”, “stuck” or “shipwrecked” on an uninhabited island. Lay witnesses in the proceeding attest to a shared cultural practice of anticipating or provisioning for the possibility of people becoming sarup by practices of planting coconuts on islands so that if someone is sarup, they will have something to eat and drink. Fr Paul Tom described sarup this way:
Well, if there’s a coconut on the island, you have to be survive. You have to climb up without asking anybody, otherwise, who you going to ask? You know. When you on a position like that, anything you find on the beach growing, whether food or coconut, you have to knock it down because that’s the only food that you can eat when you sarup. I mean when you struggled, stranded.
Adhi – In the evidence in this proceeding, adhi were principally employed as a Kaurareg concept, though were referred to also by Mualaig and Badulaig witnesses. The adhi sites (adhilgal) may function as ‘mark posts’ or a ‘boundary mark’ demarcating the boundaries of country. Thomas Savage explained it is important to acknowledge and pay respect to adhi:
THOMAS SAVAGE: Because still is adhi, that adhi know is law and because it’s - for us Kaurareg it’s a must, you must acknowledge those adhi, that’s the law. There’s no way around it, no ifs and buts about it, that’s the law, yeah.
Respecting adhi is, as explained by Mr Savage, an essential practice of protocols of respect. It is like:
THOMAS SAVAGE: I go to your place I knock on your door. That’s … to you. That’s what we do.
Gud pasin – This concept is a shared one across the Torres Strait. It expresses notions of sharing with others, kindness, humility and respect. Some witnesses connected it to, or saw parallels with, Christian teachings, others did not. Eliziah Wasaga, a Kaurareg witness for the applicant, explains:
ELIZIAH WASAGA: Well, gud pasin is, you know, like – well, my grandmother taught me that – she talks about this thing called thubud system. Thubud system is like part of that kinship system, like, if you come to my country I look after you. I feed you. I house you. I clothe you. You know, I make you feel good. Because when I go to your country you got to return the favour. So that is the importance of that thubud system again that my grandmother taught me. But when that gud pasin become … it sort of complemented that and when you sort of complemented that – because I – as I grew older and I start to and understand, and I’d research and I’d read and, you know, when Christianity came in to this region, we were very badly impacted.
But when our people saw it – that these white men come with this boat and talks about the spiritual, we live the spiritual too. So we share. Because sharing represents love. And if you love, you give, and you get blessed.
Geiza Stow, a Badulgal witness for the applicant, describes gud pasin behaviour as follows:
GEIZA STOW: Well, it’s been handed down and it’s a respect gud pasin. That you do not go to a place without you know, they have got people on that place there so you would …
MS PHILLIPS: How does it make you feel when you do ---
GEIZA STOW: Because they will look after you and they will look after you while you there and then while you coming back. So that has been instilled, the values, that were handed down.
Tommy Tamwoy, a Badulgal witness for the respondents, puts gud pasin succinctly as:
TOMMY TAMWOY: It’s the respect for everybody and anybody.
Ailan pasin – This concept is connected to gud pasin. Some witnesses described it as the same concept. “Ailan” means “island”. In his evidence given in Akiba, the late Walter Nona explained it this way:
MR BLOWES: Alright. Now, what about the word “ailan pasin”? Is that - do you know those words, “ailan pasin”?
WALTER NONA: Yes.
MR BLOWES: And how do they fit in? What do they mean?
WALTER NONA: That mean – “ailan pasin”, got to follow - nearly the same. All the same. There’s gud pasin, mina paua. So the children can adopt that gud pasin. That’s what “ailan pasin” mean.
MR BLOWES: So when you said - you said ailan pasin, and you said mina paua. Are they the same things, or are they different things?
WALTER NONA: They’re the same things, yes.
Similarly, in her lay evidence given in Akiba, Lilian Bosun says:
Ailan pasin is the same as gud pasin. That’s respecting people and gud pasin is the same all across the Torres Strait.
Both ailan pasin and gud pasin are traditional concepts, as Finn J explained in Akiba at [238]-[239], rejecting a Commonwealth contention that they were Christian concepts:
In Anna Shnukal’s 2004 Dictionary of Torres Strait Creole, “ailan pasin”, a noun, is defined to mean “island fashion, island custom. The way Islanders have long done things”. “Gud pasin”, an adjective or an adverb (though often used in evidence as a noun), is defined to mean “polite, generous”. Almost all of the Islander witnesses addressed the subject of ailan pasin in their affidavits. Gud pasin is the recurrent formula used in their descriptions of it. While ailan pasin has not been the subject of discrete address in submissions, it warrants present mention. It reflects the outlook, the cast of mind, of the witnesses. It gives vitality and coherence to what otherwise is treated discretely in written submissions on laws and customs.
The Commonwealth has suggested that aspects of ailan pasin owe some debt to the activities of the London Missionary Society and to the Islanders’ embrace of Christianity. I consider its provenance clearly predates sovereignty. Such is the view of some number of the Islanders, for example, Kapua George Gutchen, Mareko Kebisu, Bully Saylor; see also Professor Beckett, 2008A, [79] ff and Professor Scott, 2008, [99]. Its practice in some respects, though, was probably affected before sovereignty in inter-island relations by suspicions born of warfare and raiding: see Beckett, 2008B, [13]; and after sovereignty, as a result of the demands and influences of church, government and the marine industries: Beckett, 2008A, [103].
Mina pawa – Alternatively transcribed as mina paua, this is an equivalent concept concerning right behaviour, including respectful sharing and generosity in relation to other people, especially people from other groups or that one does not know. In his lay evidence given in Akiba, excerpted at [367]-[368] below, the late Tom (Jack) Baira illustrates how this concept works in practice. In his lay evidence given in Akiba, Walter Nona succinctly sums up the concept as “the right way to go”:
MR BLOWES: Alright. And I just want to ask you one word - is there a language word mina paua?
WALTER NONA: Yes, that’s mina paua, that’s gud pasin.
MR BLOWES: Yes?
…
MR BLOWES: Yes. And what’s that mina paua got to do - has it got anything to do with thubud, anything to do with friend?
WALTER NONA: Well, that’s gud pasin, you know, so the children may see those mina paua to follow when they come - when they grow big, they have to follow the right way to go.
MR BLOWES: So that - - -
WALTER NONA: That’s what mina paua is.
MR BLOWES: That’s the right way to go.
WALTER NONA: Yes, right way to go.
Ronnie Nomoa in his evidence in this proceeding also explained mina pawa:
MR BLOWES: Yes. And when you talked about mina pawa and you were talking in there about the Kubin meeting in 2005 to Two Thousand and – or Two Thousand and Five or Six, and you gave the illustration of the $5 note, is the point of that, that if you and somebody asked you for $5, and you give it to them, you expect it back?
RONNIE NOM[O]A: No, because that’s mina pawa, a person who don’t know you, or person who know you, if he asks you for $5, you know he need money and you give it without replacing by, and that’s mina pawa. It belongs to people of Torres Strait.
MR BLOWES: Yes. And if at some later time you come across that man and you need $5 - - -
RONNIE NOM[O]A: It’s up to the person now. If he got to think he look at you, “Oh, this person who give me $5”, and if he give you back $5, well that’s up to him.
MR BLOWES: Okay. Alright. That’s a very generous custom.
RONNIE NOM[O]A: That’s our custom and it will never fade out.
Pithalai – Pithalai is an actor who features in the Waubin myth or narrative, which I discuss in detail in these reasons. The place Waubin narrative in Kaurareg traditional law and custom about rights to country is central to some of the issues arising in the separate questions.
Chuktalk – This activity is a norm practised again across the Torres Strait. It involves paying respect towards ancestors when approaching or visiting in certain places. Geiza Stow described it this way:
GEIZA STOW: We have always had values of when you go to another man’s place, you must acknowledge the ancestral place, and yamulin – chuck talk. Talk to them.
MS PHILLIPS: So if you go to Warral, what do you do?
GEIZA STOW: Even when you – before you land, you might be in the boat outside the water, you would face and talk to the land. Why I’m here. Whether you got dinghy full of people, or your family, that we come in peace and we are not going to disturb and we are not going to destroy anywhere.
MS PHILLIPS: And you used that phrase chuck talk?
GEIZA STOW: Yes.
MS PHILLIPS: What is chuck talk?
GEIZA STOW: Talk.
MS PHILLIPS: Who are you talking to?
GEIZA STOW: To the spirit of the place.
MS PHILLIPS: Whose spirits are there in that place?
GEIZA STOW: That place is all ancestral, it could be Badulgal, whoever went there or whoever went passing there, but we were always, passed down that you do not just walk in and walk out, you must respect, and this is the values that I was taught and I handed down to my kids.
MS PHILLIPS: Do they do that too?
GEIZA STOW: Yes.
Coming of the Light – Although this is an English expression, I include it here because it is used by Torres Strait Islanders. The phrase refers to the point in history when Christian missionaries established churches and missions in the Torres Strait. It is used to indicate the point in time when Christianity was introduced to Torres Strait Islanders.
Names of claimants and their ancestors
To make these reasons intelligible, it will be necessary to use the names of people who have died. I intend no disrespect by doing so. Where there are spelling discrepancies as to names, I have attempted to remain faithful to the lay evidence. For the names of people, living or deceased, I have made my best effort to be faithful to the way lay witnesses spelled their names, especially their spelling of those related to them.
Colonisation
The separate questions require the Court to examine the contemporary situation in respect of these islands, but the focus is really on what the situation was before colonisation. I prefer to use the term “before colonisation” or “pre-colonisation” to “pre-sovereignty” not because there can be any dispute about the assertion of British sovereignty, and its consequences, legal and factual, but rather because in my opinion an honest account of the history of this nation must include acknowledgement that what settlers did to First Nations peoples was to attempt to colonise them, subjugate them to a new and foreign system of law and government, including with regard to land ownership and tenure. Colonisation was neither wanted nor welcomed by First Nations peoples; it was imposed upon them, with tragic consequences, some of which have featured in the evidence in this proceeding, especially about the Kaurareg People.
“PROVING” NATIVE TITLE EXISTS AND SHOULD BE RECOGNISED
By the time of final submissions on the separate questions, all active parties agreed the answer to question (a) was ‘Yes’. On the evidence, that is plainly correct. Therefore, the real dispute is about who holds that native title, and on what basis.
This separate question trial occurs within an adversarial system of justice. The Court is not conducting an inquiry, but resolving a dispute between parties, and so the Court relies on the evidence and arguments presented by the parties. The parties make forensic decisions about what evidence to adduce. For example, what lay witnesses to call, and what documents to tender. They make forensic choices about what questions to ask of witnesses, and what not to ask. They choose what to emphasise, and not to emphasise.
The moving party – the applicant – has the burden of proof. An applicant party must give the Court enough evidence to persuade the Court on the balance of probabilities about what are the correct and relevant facts, and the conclusions to draw from them. This means the Court is deciding which facts are more likely than not to be the correct material facts.
In this proceeding, the applicant has the burden of proving the shared ownership claim. The Badulgal respondents do not have a legal burden of proof. Nor do the State or the Commonwealth. The Badulgal respondents correctly accepted they do have an evidentiary burden – that is, if they seek to persuade the Court that the applicant’s shared ownership case is wrong, and the islands belong only to Badulgal, they will need to persuade the Court of those propositions through the evidence.
The applicant and the Badulgal respondents relied on expert evidence as well as evidence from claimants. The role of expert witnesses in a proceeding is to assist the Court to understand evidence before it, and/or to explain matters to the Court, often matters about history, customary law and traditions, which may contribute to what the Court must decide. In doing so, they will express opinions about the facts they have gathered together.
Here, all four experts who gave evidence are anthropologists. Each is very experienced and the Court finds they gave their evidence in a genuine attempt to assist the Court. The Court does not have to agree with an expert’s views or opinions, even if the expert is highly qualified or experienced. The views and opinions of an anthropologist do not carry any greater weight than the evidence of the claim group members, just because they are anthropologists.
The Court must consider and weigh all the evidence put before it, and then decide two basic issues:
(a)Has the applicant proved it is more likely than not that native title in Warral and Ului is held jointly by the Kaurareg, Badulgal and Mualgal Peoples? If yes, then should the Court recognise a shared native title in Warral and Ului, or is there more than one native title between the three groups?
(b)If the applicant has not proven the shared ownership of Warral and Ului is more likely than not, then the Court must decide if the evidence shows it is more likely than not that native title is held by one, or more, of the Badulgal, Mualgal or Kaurareg People. If more than one group, then should the Court recognise this as a shared native title in Warral and Ului, or two separate native titles?
In this proceeding, one feature distinguishing it from many other native title cases is the important role of this Court’s previous decision in Akiba. The parties tendered a transcript of some of the witness evidence before the Court in Akiba, as well as relying on findings made in that case. There was some debate about what the tendered Akiba evidence proved, and what the Court’s findings in Akiba meant. In these reasons, I explain my conclusions about what was decided in Akiba, the relevance and weight of the evidence in Akiba tendered before this Court, and how much of the issues in this proceeding are determined by what the Court found in Akiba.
EVIDENCE RELIED UPON
In its case management of this proceeding, the Court split the hearing of lay evidence and expert evidence in the trial of the separate question. The Court prioritised the lay evidence so as to understand how the claimants themselves explain their connection through traditional law and custom to the islands, and explain how their family and community histories of occupation and use of the islands, and the surrounding islands and waters, bear out or support the claims of native title. The Court’s view was that it would be assisted in understanding and evaluating the expert evidence if the lay evidence had been completed first. The Court’s expectation was that the experts would also be assisted by the lay evidence. That expectation did not prove to be entirely well-founded.
During the hearing of lay evidence, the Court undertook a view of Warral and Ului at the request of the applicant and the Badulgal respondents, because of the critical importance of the physical features of the islands and their surrounds to the parties’ evidence. The view was of considerable importance to my understanding of the evidence.
The hearing of the lay evidence commenced at the Waiben courthouse on Wednesday 6 October 2021, where the Court heard from the applicant’s Kaurareg witnesses over a span of three sitting days. After the weekend, the Court resumed on Monday 11 October at the community hall on the island of Mua, where the applicant’s Kaurareg lay evidence concluded and its two Mualgal witnesses gave evidence over two sitting days.
The Court conducted its view of the islands on Wednesday 13 and Thursday 14 October 2021.
The Court resumed lay evidence at the community hall on Badu, completing the applicant’s lay evidence with testimony from Badulgal witnesses on Friday 15, Saturday 16 and Monday 18 October 2021. The Badulgal respondents began their lay evidence at the same location on Tuesday 19 October 2021, and continued until the end of the Court’s final sitting day in the lay evidence hearing on Friday 22 October 2021.
Claim group members: the applicant
What follows are my findings of fact about each lay witnesses, their background, ancestors and relevant family relationships. I deal with the witnesses in the order in which they were called.
In the briefest of summaries, the lay evidence covered the following topics, aside from the family history and identification of each witness: travel to, and in the vicinity of, each of Warral and Ului both by the witnesses themselves and their families, and what they have been told about travel by their elders; the concept of sarup and the use of the islands for this purpose, but also the use of Sunswit; use of waters around the claim area, and the beaches in and outside the claim area, for gathering of marine resources; use of the land for gardens; the location of water and other resources in the claim area; who has rights to make gardens and/or build structures on the islands and who has done this; burning practices; stories said to be associated with the claim area, including the Waubin and Pithalai stories and the story of Waii and Sobai; the role of adhi; grave sites; historical accounts of clashes and warfare between various groups in the Western Islands; the removal of Kaurareg People to Mua; the concept of gud pasin; the concept of chuktalk; the work done in the Western Torres Strait by elders on pearl luggers and in the trocus and crayfishing industries; family relationships and connections between the people of Badu, Mua and the Kaurareg home islands, including aspects of culture and convention that are common among the groups; the Coming of the Light and what it meant for the practice of culture; the 2015 mediation and the concept of sharing of uninhabited islands.
I refer in more detail to the lay evidence in my findings.
Father Paul Tom
Fr Paul Tom was the applicant’s first witness in the lay evidence hearing. He gave his evidence on Waiben. He identifies as Kaurareg and Mualaig. His father, Elikiam Tom, was a Kaurareg and Gudang man from Mount Adolphus, Muri Island. The Gudang People are from Cape York, and identify as Aboriginal. Fr Tom’s mother, Weiba Tom (née Makie), was a Mualaig woman from Mua.
Fr Tom’s paternal grandfather was the son of Tam Muri, from Muri, and Mudaunai, from the Kaurareg People. Mudaunai’s father was Koberis, who was the son of Makaku and Buia, from the Kaurareg People. Fr Tom’s evidence was that every Kaurareg person is a descendant of Makaku and Buia in one way or another.
Fr Tom was born in Kubin on Mua on 25 January 1947. This was a little more than 20 years after the Kaurareg People were forcibly removed to Mua by the Queensland government. In his 1997 report in support of the Kaurareg native title claims over some of their home islands, Michael Southon traces the forced removal of Kaurareg People from Kirriri to Mua, and some of the explanations given for it. I return to the forced removal later in these reasons.
Fr Tom attended school on Ngurapai and then on Waiben, where he completed grade 10 at the end of 1962. After his schooling, Fr Tom worked on pearl luggers in the Western Torres Strait, including the pearling grounds near Badu and northwest of Waiben. During this time, Fr Tom worked with members of the Nona family, from Badu. He moved to Townsville to work on the railways at the end of the 1964 pearling season. He married Rebecca Luffman, a Mualaig woman, in 1970, and moved around Queensland and Western Australia working in various jobs. Fr Tom returned to Kubin in 1986. He worked for the Kubin Council and was elected as a Councillor for Kubin in 1994, a role he held from that time until the Mua Island Council was amalgamated into the Torres Strait Islands Regional Council in 2007. Fr Tom was ordained as a deacon in the Anglican Church in 1999. He was ordained as a priest on 26 January 2015.
Thomas Ned Savage
The applicant’s second lay witness was Thomas Ned Savage. He also gave his evidence on Waiben. His father, Nadaiaga Guy Savage, was a Mualaig and Kaurareg man born at Poid. Mr Savage’s paternal grandfather, Erimia Nagibu, was also Mualaig and Kaurareg, and his paternal grandmother, Bakari Kanai, was Mualaig. Mr Savage’s mother, Mrs Ellen Pia Savage (née Namai), has connections to several communities, including the Kaurareg People, Gudang and – by traditional adoption – the Mualgal.
Through his mother, Mr Savage is the grandson of Wees Nawia, an influential Kaurareg elder and a common relative of many of the applicant’s lay witnesses. Ultimately, Mr Savage traces his Kaurareg identity through to his great-great-great-grandfather, Makaku, who is one of the Kaurareg People’s apical ancestors, as Fr Tom explained.
Mr Savage was born on 16 April 1970 and grew up on Ngurapai, before attending primary school on Waiben. He completed primary school and started secondary school in Cape York, leaving in Year 9 to work as a bricklayer in Weipa, on the western side of the Cape York Peninsula. Mr Savage left Cape York to work as a builder’s labourer for the Kubin Community Council on Mua. He has since returned to Cape York, where he currently lives and works.
Enid Tom
Enid Tom identifies as Kaurareg, and gave her evidence on Waiben. Her father was Billy Wasaga, a Kaurareg elder, the original first named applicant for the Kaurareg native title claims, and her mother was Alice Tom.
Ms Tom’s paternal grandfather was Wasaga Billy and her paternal grandmother was Tam Bosun. Ms Tom’s maternal grandfather was Elikiam Tom, which makes her in European terms the niece of Fr Paul Tom. Ms Tom’s maternal grandmother was Weiba Tom, from Kubin. Ms Tom’s evidence is that her Kaurareg ancestry is ultimately derived from Zagra, her paternal great-great-grandfather.
Ms Tom was born on 25 July 1962 on Waiben. She completed primary school on that island, but for secondary school moved to the Tablelands region southwest of Cairns. Her evidence is that nobody spoke her language in the Tablelands, so she became homesick and returned to Waiben after grade 10. She worked as a nurse on the island from 1979 until 1988, when she moved to Ngurapai to help establish a medical aid post there. At the end of 1988, Ms Tom moved to Darwin, where she would live for nine years, studying Aboriginal and Torres Strait Islander women’s studies at university. She returned to the Torres Strait in 1997 to help with the Kaurareg native title claims, and worked for the Kaurareg prescribed body corporate after the Kaurareg native title determinations were made. She remains a director and an administrator of the Kaurareg Native Title Aboriginal Corporation, and now lives on Ngurapai.
Eliziah Wasaga
Eliziah Wasaga identifies as Kaurareg, and gave his evidence on Waiben. His father, Samuel Wasaga, was a Kaurareg man and the first chairman of the Ngurapai Community Council. His mother, Lency Aken, was a Kaurareg and Mualaig woman. He was traditionally adopted by Eselina Nawie, a Kaurareg woman who traced her identity to the apical ancestor Bagie, but was taken back by his mother after his father’s death in 1974.
Mr Wasaga’s paternal grandfather was Wasaga Billy and his father’s mother was Tam Bosun, which makes Mr Wasaga in European terms the cousin of Enid Tom, but in Kaurareg custom, she is Mr Wasaga’s sister. Mr Wasaga’s maternal grandfather was Katua Namai, a Kaurareg man and a descendant of Makaku. His mother’s mother, Kaki Aken (née Kanai/Kaitap) was Mualaig and Mualgal.
Mr Wasaga was born on 10 April 1969 on Waiben but commenced his early schooling in Weipa. From 1975, Mr Wasaga lived with his biological mother in Townsville, where he completed primary school and started secondary school. Mr Wasaga left school to return to Ngurapai, where he lived with his traditional grandmother, Eselina Nawie. In the late 1980s, Mr Wasaga lived for a short time on Mabuiag Island with his uncle, Frank Genai. He married a Kaurareg and Gudang woman, Ivy Wasaga (née Rattler), and raised seven children on Ngurapai. Mr Wasaga studied Indigenous community management in Perth and now works as a mental health worker in Townsville. He was formerly the chairperson of the Kaiwalagal Aboriginal Corporation – a Kaurareg prescribed body corporate – and now holds the positions of director, secretary and public officer of the Kaurareg Native Title Aboriginal Corporation (RNTBC).
Naton Nawia
Naton Nawia identifies as Mualgal through his mother, Lizzie Nawia (née Savage), and Kaurareg through his father, Wees Nawia. Wees Nawia is a person whom the evidence, both oral and documentary, mentioned frequently in many contexts. Naton Nawia gave part of his evidence on Mua, part of his evidence on Ului, part of his evidence on Sunswit and part of his evidence on Badu. Mr Nawia is in European terms the uncle of Thomas Ned Savage and the brother of Lillian Bosun, who gave evidence in Akiba.
Mr Nawia’s paternal grandfather was Nawia Galgaberi and his paternal grandmother was Garagu, both of whom were Kaurareg. Mr Naiwa’s maternal grandfather was Aluwa Savage, from Mua, and his maternal grandmother was Matilda Stafford, an Aboriginal woman from the Queensland gulf country.
Mr Nawia was born on 10 November 1957 on Waiben. He was raised by his mother on Mua, where he attended primary school. After finishing school, Mr Nawia worked on pearling luggers around Waiben. When the pearling industry declined, Mr Nawia became a crayfisher, an occupation he had until his retirement about ten years ago.
Mr Nawia gave evidence about the trips he made to Warral and Ului, and the provenance of a Kaurareg song about travelling to Ului. He testified that the song originates from the heyday of the pearl lugging industry in the Western Islands.
Nazareth Adidi
Nazareth Adidi identifies as Italaig, which she explained is a name that some use for the people from Mua, the more common name being Mualgal. She was traditionally adopted by Wees Nawia and Lizzie Nawia (née Savage), which makes Mrs Adidi in European terms the sister of Naton Nawia and the aunt of Thomas Ned Savage. Mrs Adidi’s evidence was that all of the children of Wees and Lizzie Nawia were adopted. Mrs Adidi gave part of her evidence on Mua, part of her evidence on Ului, part on Sunswit and part on Badu.
Mrs Adidi was born on 6 September 1952 in Kubin and was raised there by her parents. She attended school on Mua, Waiben and Ngurapai. She married a Kaurareg man, James Kanai, who worked as a miner on Mua. In 1976, she and her husband moved to Townsville, where her husband worked with her biological uncle, Eddie Koiki Mabo, on land rights in the Torres Strait. Mrs Adidi worked in health care, and helped establish a centre that advocated for women’s rights and provided shelter to women escaping domestic violence. In 1990, her husband passed away, and she relocated to Waiben in 1992. Mrs Adidi remarried a man from Saibai Island, John Adidi, and studied theology and health care in Perth from 2004 to 2014. Mrs Adidi is now retired and lives on Waiben.
Flora Warria
Mrs Warria identifies as Mualgal and Kaurareg, and she also considers herself part of the Badulgal community through her family. Mrs Warria gave part of her evidence on Mua, part on Ului, part on Sunswit and part on Badu. Her father was Oza Namai Bosun, whose mother, Bau Namai, was the daughter of Anu Namai, a Mualgal chief and descendant of the Mualgal ancestor Maga. Oza Namai Bosun’s father was Makeer Bosun, the son of the daughter of the chief of Kiriri (Hammond Island) – a Kaurareg man.
Mrs Warria’s mother is Lillian Bosun, who was adopted and raised by Wees Nawia and Lizzie Nawia (née Savage). Mrs Lillian Bosun gave evidence in the Akiba trial and some of her evidence has been tendered in this proceeding.
In European terms, Mrs Warria is the niece of Naton Nawia and Nazareth Adidi, and the cousin of Thomas Ned Savage. All these people were witnesses for the applicant.
Mrs Warria was born in 1967 on Waiben. She began primary school on Mua but, when she was still young, Mrs Warria was adopted to Ngailu Bani (from Mabuiag) and Cessa Bani (née Joe, from Badu). Mrs Warria moved to Badu to live with her adopted parents and spent much of her childhood on that island. She returned from Badu to her biological parents on Mua when her adopted father fell ill and moved to Waiben. She was sent to secondary school in Warwick, a town in southeast Queensland. Mrs Warria returned to the Torres Strait and married her husband, Milford ‘Moses’ Warria, who is from Masig, one of the central Torres Strait islands. With their children, Mr and Mrs Warria moved between Mua and Masig until 2009, when she settled on Mua.
Opeta James Kaitap
Pastor Opeta James Kaitap identifies as Mualgal through his father, Suma. Suma Kaitap’s mother was Elion and his father was Inagi, both of whom were Mualgal. Pastor Kaitap’s mother was a Kaurareg woman named Joyce Kaitap (née Kanai). However, Pastor Kaitap explained that he does not identify as Kaurareg because, in his culture, a wife moves to her husband’s country. Therefore, Pastor Kaitap’s family stayed with his father’s side on Mua. Joyce Kaitap’s father was Opeta Kanai and her mother (Pastor Kaitap’s maternal grandmother) was Niceone Bosun, a sibling of Wees Nawia. Pastor Kaitap is thereby related to Naton Nawia, Nazareth Adidi, Thomas Ned Savage and Flora Warria. Pastor Kaitap gave part of his evidence on Ului, part on Sunswit, and part on Badu.
Pastor Kaitap was born on 22 January 1963 on Waiben. He was raised on Mua and attended primary school there. He moved to Townsville for secondary school and returned to the Torres Strait to work in the crayfish industry with his father and uncles, including around Dollar Reef and Warral. Pastor Kaitap now works as a machine operator and a religious pastor on Badu. He lives on Mua with his wife, Rita (née Nona, from Badu), with whom he has four children.
Alick Seriba Tipoti
Mr Tipoti identifies as a Badulaig, and he gave his evidence on Badu. His mother was Phyllis Kusu and his father was Leniaso Tipoti, who was also known as Argan Besai, a Badulaig and Mabuiag man. Leniaso Tipoti’s mother was Dagum Tipoti, the daughter of Nomoa and Kaidi. Mr Tipoti’s paternal grandfather was Waipila Tipoti, the son of Kiriz and Alis Monday (also known as Alis Tipoti).
Mr Tipoti was born on 28 November 1975 on Waiben. He grew up on Badu and attended primary school there. He spent a lot of his childhood with his father, travelling around and between the islands and reefs of the Western Torres Strait, as well as to the island of Saibai, which lies further north. He learnt singing, dancing, art making, fishing and hunting on Badu, but moved to Waiben for schooling when he was about twelve years old. Mr Tipoti is now an internationally renowned professional artist, with tertiary qualifications from the Thursday Island TAFE, the Cairns TAFE and the Australian National University. Since October 2015 he has lived on Badu, where he produces art and works at the local art centre.
Geiza Stow
Geiza Stow identifies as a Badulaig, through her father, Aidan Laza, and she gave her evidence on Badu. Aidan Laza was the son of Bagari, a Badulaig man, and Tuigan, a woman from Saibai. Ms Stow’s mother, Naianga Blanket, was also Badulgal. Her maternal grandmother, Geiza Tamwoy, was a descendant of the Badulgal apical ancestor Sagul, and her maternal grandfather, Daniel Blanket, was a descendant of Wairu and Kaim.
Ms Stow was born on 17 June 1957 on Waiben. She grew up on Badu, attending primary school until grade 5, when she moved to Waiben. Ms Stow finished secondary school on Waiben in 1973, and completed a year of training at a TAFE college in Brisbane thereafter. She returned to Waiben and worked as a shop assistant for five years. She married her husband, Steven Stow, in 1982, and travelled around Queensland doing various jobs and completing further training at TAFE. During this time Mr and Ms Stow had four children, including Troy Laza, who is another witness for the applicant. Ms Stow divorced her husband in 1997 and returned to Badu in 1999 to be with her father. She worked as a housing officer for Badu Island Council for ten years. She currently works as a casual student welfare officer at the Badu School.
One aspect of Ms Stow’s evidence that became material during the trial was a map she told the Court about in her oral evidence, which she then produced. It was a very large map, rectangular in shape and all hand drawn. According to Ms Stow, the map was drawn by her father not long after the High Court decision in Mabo (No 2). A digital copy of the map was tendered as an exhibit in the hearing. I discuss the map in more detail later in these reasons.
Troy Laza
Like his mother Ms Stow, Mr Troy Laza identifies as a Badulaig and gave his evidence on Badu. He was born on 11 March 1978 and is currently employed as the senior natural resource officer for the Torres Strait Islander Association’s western rangers division.
Titom Nona
The applicant’s twelfth and final lay witness was Titom Nona, the first named member of the applicant. Mr Titom Nona identifies as Badulgal through his father, Philemon Nona, who was the son of Solomon Nona. He gave his evidence on Badu. Mr Titom Nona also considers that he could identify as Mualgal or Kaurareg through his mother’s side of his family tree. His mother was Flora Nona (née Savage), the daughter of Powanga Savage, who came from Mua, and Iaga Savage, who was originally from Normanton but moved to Mua with Powanga. His paternal grandfather was Solomon Nona.
Mr Titom Nona was born on 16 August 1957 on Waiben. He was raised on Badu and attended primary and secondary school there. After finishing grade 10, Mr Titom Nona fished for barramundi in Papua New Guinea for almost a year, and then worked as a crayfisher and on pearling luggers around the Western Torres Strait. He has lived on Badu for most of his life, and worked for the Australian Quarantine Service for 26 years.
The Badulgal respondents’ lay witnesses
Ronnie Nomoa
Mr Nomoa is the third named Badulgal respondent. Mr Nomoa gave part of his evidence on Ului and Sunswit, and the remainder of his evidence on Badu.
Mr Nomoa’s mother’s name was Phoebe Lui, the daughter of a woman from Mornington Island named Daisy and a man from Samoa named Lui Samoa. His father’s name was Young Nomoa, the son of a woman named Koidei and a man named Numa (also known as Nomoa), both from Badu. Mr Nomoa ultimately traces his Badulgal heritage to the apical ancestor Uria.
Mr Nomoa was born on 10 August 1944 on Badu, in the bush of the centre of the island, where his family was relocated during the Second World War. In 1945, six months after the end of the war, Mr Nomoa and his family moved to the village of Wakaid, on the island’s south-eastern coast. He grew up in Circle V, which used to be known as Kona Village, where Mr Nomoa lived until his marriage in 1972. He was raised by his mother while his father worked on pearling luggers. Mr Nomoa worked his family’s gardens. He attended the Dogai school in Kona village until 1958, and began work on a pearling lugger after finishing grade 7; that is, when he was about fourteen. He worked the annual pearling seasons from April to January each year. After marriage, Mr Nomoa moved to Yallawar, on Badu, to be with his wife’s family. He moved into his current house on Badu in 2004, after his wife passed away. Mr Nomoa is now retired.
George Henry Nona
George Henry Nona is the second named Badulgal respondent. Mr George Nona gave part of his oral evidence on Sunswit, and the remainder on Badu.
Parts of Mr Nona’s evidence of his early family life are the subject of a suppression order.
Mr George Nona was born on 22 December 1971 on Waiben. He grew up in a house in Geia village, on Badu, and attended primary school on the island. He moved to Waiben to begin secondary school, and finished his secondary education in Redcliffe, a suburb in north-eastern metropolitan Brisbane. In early 1992, Mr George Nona went to Palm Island and then to Melbourne for tertiary studies. He worked for the Ipswich City Council in Brisbane, obtaining qualifications in bricklaying, but returned to Badu in 1998. In 2002, Mr George Nona researched traditional headdresses as an artist, living in Brisbane and Melbourne. He also spent two years living and researching art in Canberra. From 2008 to 2014, Mr George Nona lived on Kirriri (Hammond Island). He now lives permanently on Badu, working as an artist.
Wolfgang Samat Victor Laza
Mr Wolfgang Laza is not one of the Badulgal respondents, but he supports their contentions in this proceeding, although he is also a member of the applicant’s native title claim group. He gave his evidence on Badu.
Mr Wolfgang Laza’s father was Aidan Laza, which makes Mr Wolfgang Laza in European terms the brother of Geiza Stow. Mr Wolfgang Laza’s evidence was that Aidan Laza’s father’s name was Bagauer, who was the son of Bainu. I note the name “Bagauer” is slightly different to the name Ms Stow gave for her paternal grandfather, but nothing turns on this difference. According to Mr Wolfgang Laza, Bainu was the son of Wakie, who was the son of Baudu. Baudu’s father was Pithai, the son of the Badulgal apical ancestor Waii. In his evidence, Mr Wolfgang Laza traced his ancestry further back than Ms Stow did.
Mr Wolfgang Laza was born on 21 November 1965 on Waiben, but he was raised on Badu. When he was young, Mr Wolfgang Laza worked as a pearler in the Western Torres Strait, including in the area north-west of Ului. He started work for the Australian immigration authorities in 1996 and, aside from a period from 2000 to 2005, he has worked for the Australian Border Force ever since. He currently lives on Badu, on the same street as Mr Nomoa.
Walter Tamwoy
Pastor Walter Tamwoy is the fourth member of the Badulgal respondents. He gave his evidence on Badu.
Pastor Tamwoy’s father was Titom Tamwoy and his mother was Louisa Tamwoy (née Nona), both from Badu. His paternal grandfather was Taum, from Badu, and his paternal grandmother was Eccles, from Erub (Darnley Island). Taum’s father was Simi, a descendant of Pithi, from the Badulgal apical ancestors Waii and Sobai. Pastor Tamwoy’s mother’s father was Tipot (or Tipoti) Nona, from Samoa, and his father’s mother was Ugari Nona (née Usia), from Saibai.
Pastor Tamwoy was born on Badu on 11 March 1946. He was raised on the island and attended school there until 14 years of age. After school, he began work as a cook on pearling boats. At 16 or 17 years old, Pastor Tamwoy moved to mainland Queensland to work on the railways and in the fruit-picking industry. He then worked for eight years as a diver in the pearling industry, and then as a diver on crayfishing boats. In 1987, Pastor Tamwoy became a pastor in a Pentecostal church in Western Australia. He returned to Badu around 1991, where he still lives and works as a pastor today.
Tommy Willie ‘Dinto’ Tamwoy
The Badulgal respondents’ fifth and final witness was Tommy Willie ‘Dinto’ Tamwoy. Mr Tommy Tamwoy is also the fifth member of the Badulgal respondents. He gave part of his oral testimony on Ului, and the remainder on Badu.
Mr Tommy Tamwoy’s parents were Titom and Louisa Tamwoy. He is the younger brother of Pastor Walter Tamwoy.
Mr Tommy Tamwoy was born on Waiben, but raised on Badu. He finished school when he was 14 or 15 years old, and started work as a deckhand on a pearling lugger. He worked throughout the islands of the Western Torres Strait, including at Cooks Reef, west of Ului. His work spanned many different luggers, including ones owned by Victor and Phillip Nona. In 1968, when he was about 21 years old, Mr Tommy Tamwoy moved to mainland Queensland to work on the railways. He continued this work on the mainland for about six years, which included a period of time in the Northern Territory. Mr Tommy Tamwoy returned to Badu in 1974 and has lived there ever since. He is now a crayfisher and although he was in his late seventies at trial, gave evidence that he still enjoys free-diving for crayfish.
The view
The Court was invited by the applicants and the Badulgal respondents to undertake a view of several sites around Warral and Ului. The Court made an order pursuant to s 53 of the Evidence Act 1995 (Cth) to facilitate this course of action. It was agreed that the view would be conducted from the decks of boats navigating around the islands. The parties’ counsel and several witnesses who were to indicate specific sites during the view all travelled on one boat, although at one point the Court party and accompanying persons moved from the ‘Court boat’ to the ‘State boat’. Other legal representatives and witnesses followed on other boats. Other witnesses and claim group members followed in their own boats. My associate prepared a record of the view, including photographs of the sites that were pointed out by witnesses, GPS locations of the boat and bearings of the photographs taken and summaries of the descriptions or notes of the witnesses that were given during the view. The parties reviewed the record and confirmed that they took no issue with its contents. The record was then marked as exhibit A58.
The view was conducted over two days. On 13 October 2021, after hearing evidence on Ului, the Court was shown a beach on Ului’s eastern coast, which Mrs Adidi said contains the site of a former garden and Mrs Warria said contains a picnic site. Slightly south of that site the Court was shown a site at which Mr Savage said he used to crayfish and Mrs Warria said her father used to crayfish.
Mr George Nona is there referring to Aidan Laza. He continued to give the following evidence:
MR SMITH: I’ll just get you to play the video for two more seconds please. I’ve stopped the video at 23 seconds for the transcript. Can you tell me what islands you can see from there?
GEORGE NONA: Yeah, that’s Prince of Wales, POW, Muralug Islanders call it.
MR SMITH: Have you been up to that place, that lookout that you went to before?
GEORGE NONA: The one I was taking - - -
MR SMITH: Went for the video.
GEORGE NONA: Yes, I did.
MR SMITH: And did you find any objects when you were there?
GEORGE NONA: I went there with Levi Baira. We were coming from TI and I told him that Uncle Aidan told me that this - this hill here facing this way is a Turanagai Dagamurr. I just go check if it was true so I run up there to check and I found a trumpet shell up there, a really old one at that area and also the rock was on top of the rocks.
MR SMITH: And do you normally find trumpet shells on top of mountains?
GEORGE NONA: No.
MR SMITH: Where do you normally find them?
GEORGE NONA: In the water I guess. The reason that we were taught by – I was told by Uncle Aidan Laza when we were youngster that the trumpet shells were on top of the hill for the warriors to blow to give a warning siren if enemies are to come, and it was normally facing towards the enemies when this was found - these areas are found.
MR SMITH: And this lookout, which direction is this lookout facing?
GEORGE NONA: Muralug.
MR SMITH: And by Muralug what’s the English name for that island?
GEORGE NONA: Prince of Wales or POW.
Flora Warria gave similar evidence about Mualgal warriors, and said her grandfather Wees Nawia told her about this. I accept it is plausible that Warral may have been used for that purpose, because its peak is high, and I infer gives good views north and south. The accounts from Barbara Thompson about Badulgal lighting fires might support this. I accept Mr Nona gathered some of this information in a typical oral history context. He was not challenged in terms of the veracity of what he told the Court about the information he received from people such as Aidan Laza.
I turn now to some of the matters I have discussed earlier in these reasons but which need to be identified as having weighed in my reasoning process in my conclusion about Badulgal and Mualgal native title in Warral. Again, it is clear that this evidence proportionally weighs in favour of the Badulgal native title in the island, rather than Mualgal. The matters are:
(a)the Aidan Laza map;
(b)the evidence about gardens, burning and burials;
(c)the Akiba evidence;
(d)the earlier connection reports;
(e)previous determinations; and
(f)what pre-colonisation evidence there is.
As a general matter, I accept the State’s submissions at [105]-[107], and the Commonwealth’s submissions at [61.5], [62]-[63] and [68]. I generally accept the submissions of the Badulgal respondents at [3], in terms of the evidence referred to supporting Badulgal native title in Warral.
However, I do not accept that native title is exclusive of Mualgal, although, as I have explained, I found this aspect of the proceeding the most difficult to reach a firm conclusion on. I have been troubled by the evidence of witnesses such as Alick Tipoti, whom I consider not only highly reliable, but insightful and informed. His Akiba evidence, and his evidence in this proceeding, was that his elders told him, and he understood, Warral belonged only to Badulgal. He has a contemporary view that the shared ownership model is the best arrangement going forward, but his evidence about rights under traditional law could not have been clearer. Troy Laza’s evidence is similarly troubling to my conclusion of a joint native title. Indeed most of the Badulgal witnesses were deeply persuasive about Badulgal-only traditional rights in both islands.
Then there is the issue of Sunswit. As I have explained, it is not appropriate for the Court in this proceeding to make any findings about who has native title in Sunswit, but the parties agree it is appropriate for the Court to use evidence about Sunswit as probative – one way or the other – about native title in Warral (more so than Ului, because of Sunswit’s location).
I note in that context that in his 2015 report Dr Murphy said this:
Sanswit and the other rocks and islands between it and the larger island of Waral are regarded by the Badulgal claimants as part of Waral. There is a coconut grove on Sanswit which is well known among Badulgal people as having been established by Badulaig man Baira. The approach from the north of Sanswit allows a relatively easy landing by dinghy, and this is a common stopping off place for people travelling south from Badu to Thursday Island and vice versa.
This reportage is indeed consistent with the evidence given by Tom Jack Baira in Akiba: see [381] above. There is nothing in this report which suggests that any Mualgal informants or Kaurareg informants made the same kind of assertion to Dr Murphy.
There is a high level of consistency, and positive assertion, in generations of Badulgal about Sunswit, as there is with Warral. The evidence concerns ancestral occupation, not just permissive use.
This supports the Badulgal respondents’ case that Warral belongs to Badulgal. As I explain, it is this kind of material which made it difficult for me to reach a favourable conclusion about Mualgal.
As for Mualgal, the State submits:
Evidence of the use by the Mualgal of the sea surrounding Warral included:
(a) Diving for crayfish;
(b) Catching dugong;
Further, there was some evidence from the other groups of the Mualgal being present on and using Warral. For example:
(a)Thomas Savage gave evidence that we would sometimes come across Badulgal or Mualgal on Warral and they would acknowledge each other – T.242;
(b)Alick Tipoti gave evidence that he had heard of Mualgal using Warral many times though he had never been with Mualgal on that island – T.835-836.
(Footnotes omitted.)
Much of this evidence is from Naton Nawia. On these matters about relatively traditional activities when he was a younger man, describing his lived experience, I consider Mr Nawia’s evidence is reasonably reliable. There is also evidence from Flora Warria, whom I found to be a reliable witness. Mrs Warria’s evidence demonstrated her own knowledge of Warral, as well as what she had been told by her elders. She is the daughter of Lilian Bosun, whose evidence in Akiba was that Warral belonged to Mualgal. I accept she also gave an account about warriors using Warral, which she said was information given to her by her grandfather. Wees Nawia was Kaurareg, but Mrs Warria’s grandmother was Mualgal, and Wees Nawia grew up on Mua. I infer he was describing Mualgal warriors; Mrs Warria certainly did not suggest they were Kaurareg, and it seems rationally less probable for Kaurareg warriors to be using Warral as a lookout. No account in earlier sources, or in expert reports, or in the lay evidence supported the proposition that Kaurareg warriors used Warral as a lookout.
Mrs Warria did also recognise, at least in part of her evidence, that Warral was shared with Badulgal:
FLORA WARRIA: Well, from the time of treaty and peace and, you know, the forefathers making a trade, I believe it’s the Badulgal too because they are part of us. I don’t – I mean by saying it’s part of us is they are part of Mua because the basket went from here to there, if you get my meaning.
MS PHILLIPS: Well, perhaps you should explain - - -
FLORA WARRIA: Okay.
MS PHILLIPS: - - - to her Honour what you mean by that, that the basket went from here to there?
FLORA WARRIA: Okay, well, the basket I’m talking about is great, great grandmother, and the grandmothers from here, and that’s our language term that we use is that she’s a basket because between – the Mualgal women have intermarriages with the Gumulgal and the Badulgal.
Some of Pastor Kaitap’s evidence about Warral (mostly about Sunswit) was reliable. He did give some evidence about Mualgal family visits (camping on Sunswit but going to Warral):
MR BLOWES: Can you describe the number of times and perhaps the sort of things you did?
OPETA KAITAP: Well, I’m 58 now, and all my young coming up has been passing through and always be here for crayfishing with my uncles, Garagu’s dad, James Kaitap, and Oza Bosun, Flora’s dad, and my dad, Suma, and also my uncle grandfather, Wees Nawia. We’ve been always passing through here. It was 1976, that’s the time, you know, I was with them, you know, fishing.
MR BLOWES: And what do you call this place?
OPETA KAITAP: This is Sunsuit.
MR BLOWES: And can you see any other places nearby here?
OPETA KAITAP: Yes, that’s Warral just over there.
MR BLOWES: Pointing southeast?
OPETA KAITAP: Southeast, yes, and as you go around we always camp around here. You know, it all depend when it’s a low tide, we don’t set out camp at Warral, we set out camp here closer to the edge, because that’s - - -
MR BLOWES: When it’s low tide?
OPETA KAITAP: Yes, for a low tide because of fishing time - - -
MR BLOWES: Yes.
OPETA KAITAP: - - - because we can’t get our dinghy out from there, it’s pretty low, and when it’s low the edge is right out and the dinghy - and we won’t go walking because we always swim around the edge and that time the crayfish was a lot – a lot of crayfish.
MR BLOWES: Okay. And is that a beach that you’ve camped on or is there another longer beach and them around the other side?
OPETA KAITAP: There’s another longer beach on the front, but we always have a visitor from Kaurareg, Uncle Billy Wasaga and Isaac Kanai, and Phillip Wasaga, and they always come and fish too.
(Emphasis added.)
Perhaps unwittingly, but consciously, Pastor Kaitap is describing, in my view, precisely what I have found to be the situation with the Kaurareg People – permissive use, by reason of close connections to Mualgal. That evidence, given spontaneously, is of some weight.
In my opinion, overall, the evidence supporting a finding of native title in Warral being held by Mualgal is much weaker than Badulgal. The four matters which have persuaded me, just, over the line of the balance of probabilities are:
(a)Some of the very reliable lay evidence, such as that from Mrs Warria. It was quantatively less than the Badulgal evidence, but still persuasive.
(b)The second shared islands determination. In this determination are islands much closer to Badu, and about which there is objective material pointing to more use by Badulgal than by Mualgal. Nevertheless, there was a shared native title recognised.
(c)The Akiba evidence. I have explained earlier why I consider this can be given considerable weight. Alick Tipoti’s evidence causes me difficulty, as I have explained. Aside from this, there is evidence from Fr Manas (although he also said Dadalai belonged to Mualgal) and Lillian Bosun supporting Mualgal native title in Warral.
(d)The permissive use I consider the evidence demonstrates about Kaurareg People on Warral. Overwhelmingly, the people who took Kaurareg there, or went with Kaurareg, were Mualgal. It is the close relationship between these two groups that I have found facilitated Kaurareg People’s permissive use of the islands, post-colonisation. Otherwise, there would be two groups permissively using Warral, and only Badulgal could have allowed that. The evidence does not support a finding to that effect. Rather, I consider Badulgal at least tacitly recognise Mualgal rights in Warral, and the extremity of some positions by Badulgal is driven by a post-colonisation, and contemporary, opposition to the ownership assertions by Kaurareg which, on the evidence, have been sometimes expressed as exclusive ownership and on any view are territorially expansive assertions.
Finally, I have given considerable weight to the substantive position ultimately adopted by the State in this proceeding. I have been greatly assisted by the State’s participation in this proceeding, by the line of questioning taken, and by its submissions. The State is a critical participant in native title determinations. It agreed to recognise both Badulgal and Mualgal native title in the second shared islands determination. Its position in this proceeding has been thoughtfully and carefully prepared. I am loathe to depart from the position it has reached unless I consider I have an overwhelming justification to do so. In combination with the other matters, I do not consider any such justification is present.
Who has native title in Ului
I have, with some hesitation, concluded that Badulgal and Mualgal also hold native title in Ului.
The case of the Badulgal respondents was stronger for Ului. There was little or no reliable evidence for ancestral use and occupation of Ului by Mualgal, certainly pre-colonisation or in the decades shortly after colonisation. The lay evidence about Ului for Mualgal was meagre and some of it was unreliable.
One pre-colonisation event relied on by the Badulgal respondents, but not by the State, was the narrative concerning the sinking of a European ship near Ului, and the seizure of its contents, especially swords, by the Badulgal.
Dr Murphy was asked about the event in cross-examination:
MR SMITH: Wilkins also reports that there was a ship that was found by the Badulgal near Ului, stranded on an island called Ului? Do you consider that to be historically correct, based on your research?
DR MURPHY: I think it’s more than likely correct as certainly a living oral tradition among people at Badu.
MR SMITH: Have you heard that story also told to you by people of the Mualgal?
DR MURPHY: Mualgal? Yes, I’ve heard – I don’t know that there’s been a reference to it being from Ului, but I’ve certainly heard of them having the knives and the swords – they found swords on a ship. It may – Mualgal people may have mentioned it was at Ului, but I can’t recall that detail.
MR SMITH: You’ve mentioned knives. Do you agree that the Badulgal – have you heard from Badulgal people that there were knives or swords found on a shipwreck?
DR MURPHY: Yes. Spanish swords is the one that I’ve heard.
Mr Leo expressed some views about the event in his report at [34]-[35]:
The Murphy 2008 Report pertains to Torres Strait Regional Sea Claim, and was explicitly produced so as to clarify certain matters arising from a conference of experts and those expert’s respective reports. The only mention of either Warral or Ului is thus:
Contemporary oral tradition speaks of ‘the last fight’ between Moa and Badu as occurring when Badu men acquired swords from a shipwreck at Ului (West Island) and massacred the population of Moa, but the detail provided by Wilkin shows that the fighting took place over a period of time and that it featured different groups and combinations of groups from either side at different times. (para65; see also corresponding footnote 96 at bottom of page)
I am minded to conclude that because the Badulgal were the ones to salvage those swords, at the least, the Badulgal visited and accessed Ului sufficiently regularly enough to be the salvagers of those swords, and at the most were resident at the time (for example, were tending gardens there). The salvaging of those swords also supports the view that the Badulgal had the right of salvage over what was shipwrecked upon Ului and its reefs.
(Original emphasis.)
The State cross-examined Mr Leo about this. The applicant did not. Mr Leo’s response was:
MR McKECHNIE: But is there anything in the ethnographic record or based on your knowledge that - because what I’m reading at 35 is that it seems to me like you’re elevating the fact of salvage to be based on a right of salvage that is somehow linked to ownership. I just - - -
MR LEO: Well, I said - I would more characterise it as what I was being minded about was that they were the ones to get the swords, the Badulgal - no-one else. So - and most likely because they were obviously going there regularly or were there at the time and so they were able to - able to be the salvagers.
The right of salvage, I think that follows on from - from people regarding this as their country. I’ve got to – I’m trying to recall a section in the lay evidence where someone said something about - to that effect, you know, “They took the swords. That was our country” or something. I have to check it up. But I – it seems like, in my view, that it’s evidencing a right of salvage. It was there, they came upon their country, they take it.
Mualgal witness such as Mrs Adidi were cross-examined by Mr McAvoy to in an attempt to confirm they knew this story and that it involved Badulgal people. However, I did not understand Mrs Adidi to wholly embrace what was being put to her. The reason for that was her general antagonism to the Badulgal respondents rather than, in my view, that she denied the truth of the event.
I understand the State’s scepticism about how far this event can be taken. Nevertheless, I accept Mr Leo’s opinion that, in a pre-colonisation context, it is more likely than not to be indicative of ownership, and of regular use of the area, for the shipwreck needed to be discovered. I also consider it of some weight that there is no corresponding evidence about Mualgal. This is consistent with the view I have of the evidence overall, which is the predominant ancestral occupation and use of Ului was by Badulgal.
Other applicant witnesses confirmed the event, but were not asked any detail:
MR SMITH: Did your grandfather tell you the story about Badu warriors finding a shipwreck with Spanish swords?
TROY LAZA: Yes.
MR SMITH: And they used those swords in battle?
TROY LAZA: Yes.
MR SMITH: That was a battle with Mua?
TROY LAZA: Yes.
Troy Laza is a Badulaig and, as I have explained, I found him a highly reliable witness.
There was strong evidence from Tommy Tamwoy about gathering orchids on Ului for sale, and about regular visits to the island:
MR SMITH: Have you been to Ului this year?
TOMMY TAMWOY: Yes.
MR SMITH: When was that?
TOMMY TAMWOY: Was the middle of the year.
MR SMITH: Did you come up onto the island or just come into the bay?
TOMMY TAMWOY: I come up from the island, go get the water, come down that gully.
MR SMITH: Could you just point in the direction of the gully that you’re pointing at?
TOMMY TAMWOY: Up there.
MR SMITH: Pointing up towards the left?
TOMMY TAMWOY: Yes.
MR SMITH: Is that a creek, a river, what is that?
TOMMY TAMWOY: It’s a creek. Run from the hill, coming down.
MR SMITH: Does it run some of the year, all of the year?
TOMMY TAMWOY: Not all the year, only when the wet season and like if we just go out, like this time, the water start drying on the creek.
MR SMITH: Did you do anything else when you were here, did you walk around, do anything else in the bushland?
TOMMY TAMWOY: I walk up there to get the water, and I saw some orchids, but I know which tree they grow on, so I walk up there, I pull one out, but before I pull that orchid out, I have to ask the ancestors, before I do, break it up, pull the orchid from the tree.
MR SMITH: What do you ask the ancestors?
TOMMY TAMWOY: (Kala Lagaw Ya spoken)
MR SMITH: What colour orchid was it?
TOMMY TAMWOY: Purple one.
MR SMITH: Is that an orchid that you can find on Badu?
TOMMY TAMWOY: Yes, very rare. Different area, yes.
MR SMITH: What other kinds or orchids are there?
TOMMY TAMWOY: Some yellow, some grows on the ground, the bigger one.
MR SMITH: You mentioned the tree that it grows near, what kind of tree is that, do you know?
TOMMY TAMWOY: Call tea tree, we call them Ub.
MR SMITH: So when you’re looking for orchids, do you look for the orchids or do you look for the trees?
TOMMY TAMWOY: If I go get water, I saw them trees and saw the orchids, so I pull one out.
MR SMITH: What did you do with the orchids that you took, did you take them back with you or leave them here?
TOMMY TAMWOY: No, I take them back home.
Later in re-examination, Mr Tamwoy gave this evidence:
MR SMITH: And before you picked that orchid did you ask anybody else other than the ancestors for permission to take that orchid from Ului?
TOMMY TAMWOY: No, because I know that island belongs to us.
MR SMITH: Could someone from Mua pick an orchid like the one you did from Ului without asking for permission?
TOMMY TAMWOY: If I saw them there, but I don’t saw them there.
One way to interpret this answer is that Mr Tamwoy never sees Mualgal on Ului, but accepts they have a right to go there, and to gather resources. It is mildly probative of a recognition of Mualgal rights in Ului. The stronger inference is that Mualgal infrequently visit Ului.
Ms Stow, a Badulaig woman, gave some evidence about a trip to all three islands to clean up ghost nets left in the sea:
MS PHILLIPS: So can you tell her Honour about a recent trip that you have done to Warral and Ului, do you remember going there?
GEIZA STOW: Very recently?
MS PHILLIPS: Yes.
GEIZA STOW: Yes.
MS PHILLIPS: Who did you go with?
GEIZA STOW: I own a six metre boat, 115 horsepower Mercury, and it’s not functioning at the moment, so we been going out all the time, and I took my grandson Bainu, Bainu Laza, and cousin Bernie Joe and my partner Nabai Sabake, we went, and our trip was to go and look at anything, ghost nets, ropes, turtle eggs. So we went to Warral and we went around to where the Laza’s garden is and we pulled big ropes out of there. Nets, like I said, they get really tangled. Then we went around to the top, Sunsuit, and then we pressed over to Ului. That was two years ago.
This is, I find, a description of the kind of activity that persons who are confident about their ownership of land and sea engage in. It is also significant in my view that Ms Stow’s evidence included all three islands. It is consistent with her fidelity to her father Aidan Laza’s knowledge about Badulgal country.
There was ample, and often unique, evidence about Badulgal occupation of Ului. The State summarised the evidence at [131]-[132] of its written submissions and I accept those submissions. I also give weight to the Aidan Laza map in this context, and the detail it provides about places and features on Ului.
Again, as for Warral there is qualitatively and quantitatively less evidence about Mualgal use and occupation of Ului. There is none that could be said to be pre-colonisation. As I have explained above, there was some lay evidence about Mualgal use of Ului which I did not find reliable: see [828]-[843], [874] above.
This is what Mr Wood in his 2015 report, in support of the Kaurareg People, said about Ului:
Keeping these cautions in mind, the indicators from the accounts of Mualgal people I spoke with in 2002-2001 are for use of the Waral-Ului area by all three groups. Some said that Ului and Sansuit Islands in particular were visited and used by Badu and Moa people. Mrs Nawia recalled that Badu people used to go to Ului, and had huts there ‘use[d] for picnic place’ (pc. Oct 17, 2001). John Manas mentioned a banana garden on Ului, but said he did not know who planted it, from which I tend to infer that he did not think Moa people had (pc. Oct 17, 2001). Pelerina Bagi’s statement that many people from Poid used to camp at Waral before WWII has to cover at least some Mualgal people. Elizabeth Nawia recalled no one except herself and her husband gardening at Waral, and never saw anyone else there after the war, when, however, her visits were far less frequent and of short duration. There were, she said, people on other small islets immediately southwest of Moa and Badu. Although Kaurareg activity at Waral is well attested in what I was told, I heard less said about Ului. Although this is partly related to the fact that our helicopter visit focused on Waral and landed there, and also to the preservation among the Kaurareg and Mualgal of mythological detail for Waral and little for Ului, the implication of this is lower visitation to and familiarity with Ului. However, Pelerina Bagi observed that in the immediate post-war period Ului had no coconuts – a common Moa idiom for stating that it was not a habitation site – and said explicitly that no one was then living there; however, she was also unaware of Wees Nawia’s earlier hut and garden on Waral (pc. Oct 18, 2001). Sansuit Islet, nearly adjoined to Waral, has coconuts, which neither the Kaurareg nor Mualgal lay claim to having planted; but someone planted them.
On the other hand, there is evidence from Akiba that does provide at least some foundation for a finding of Mualgal rights in Ului. At [86], the State relied on the evidence of Lillian Bosun in Akiba:
However, in her evidence before Finn J, Naton’s older sister, Lillian Bosun, said that Wees Nawia told her that Ului belongs to Mua, but “we share together, Badu and Moa”. When asked what she thought of some younger Kaurareg people saying that Ului was their place, Ms Bosun’s response was “we say ‘no’” because her father was a Kaurareg man and he said it was not a Kaurareg place (Ex A52, 979). No other descendants of Wees Nawia gave any evidence of adhi present at Ului.
I have extracted that evidence earlier in these reasons.
That is evidence given outside the heat of this case, and outside some of the contemporary influences arising after the 2015 mediation. It should be afforded some weight. It is probative of the inclusion of Mualgal people.
But for the shared islands determination, and the Akiba evidence, the evidentiary case of the Badulgal respondents for Ului may well have supported a finding that it was more likely than not that the rights and interests in Ului under traditional law and custom reside only in Badulgal People.
However, on careful reflection over all of the evidence, I have decided that the better way to see that stronger evidence is that there is a clearer pattern of regular and intergenerational use of Ului by Badulgal which could in part have a geographical explanation, that island lying closer to Badu and not being a ‘stopover’ place for those travelling north/south between the Kaurareg islands and Badu and Mua and Mabuiag.
I do not consider the evidence indicates that Badulgal could rely on traditional law to exclude Mualgal people from Ului. The evidence from Tommy Tamwoy above is one example. Nor do I consider that if Mualgal people went to Ului – for example, to rest and eat after dugong hunting around it – that it would only be gud pasin that would prompt Badulgal people there to accept their presence on Ului. It would not be a permission situation. It would be an entitlement situation for the Mualgal, even if in a practical and realistic sense they were less frequent visitors. In other words, the same rules would apply as apply on Tuin, on Warral, on Sunswit and on Dadalai, even though proportionally Badulgal may visit and use these islands more frequently. It would be incompatible, and discordant with the shared islands determinations, to find that only Badulgal held native title in Ului.
I have found this a difficult choice. As for Warral, aside from the Akiba evidence and the shared islands determination, I have also taken into account the State’s final position about Ului.
QUESTION B(II): WHAT IS THE NATURE AND EXTENT OF THE NATIVE TITLE?
The applicant submitted that the nature and extent of the applicant claim group’s native title rights and interests is the shared right to possession, occupation, use and enjoyment to the exclusion of all others. The Badulgal respondents’ submission was that only the Badulgal have a right to possession, occupation, use and enjoyment to the exclusion of all others, including the Mualgal and the Kaurareg People.
While initially the Commonwealth and the State submitted that they could provide no conclusive answers to this aspect of the separate question until after a consideration of the evidence of the applicant and the Badulgal respondents, each of the government parties addressed the Court in closing submissions on what factual findings should flow from the evidence adduced in this proceeding.
The State submitted that only non-exclusive native title rights are capable of being recognised in the islands, because the evidence in this proceeding indicates that there is no single, shared native title in Warral and Ului. Rather, the State’s position is that there are separate and distinct overlapping native titles, and the common law cannot recognise exclusive native title rights in an area subject to overlapping native titles. In the State’s submission, if the Court were to find that the Kaurareg People hold a native title in the islands that originates from the Waubin myth, then that native title must be separate and distinct from any native title held by the Badulgal or the Mualgal over the islands, which does not derive from mythology but rather only from ancestral occupation and use. Further, the State submits that the evidence in this proceeding indicates that the three groups do not acknowledge the others’ claims that the islands equally and simultaneously belong to them under traditional law and custom. Rather, the evidence is that each group considers the islands truly belong to it, but the other groups are permitted to visit or occupy the islands, for reasons not solely attributable to traditional law and custom.
The State submits that the Court should take the claimants’ evidence about this matter at face value, and the Court should not accept the opinions of the experts in this proceeding who gave evidence that there is in fact mutual acknowledgement, despite the claimants’ evidence that the islands belong only to their respective community. Insofar as the applicant relies on the 2015 and 2020 agreements as evidence for mutual acknowledgement, the State submits that the Court should note that those agreements were reached in order to satisfy the requirements for native title, and did not necessarily reflect the three groups’ traditional laws and customs. In these circumstances, the State submits that there is no evidence for a single native title shared by the Kaurareg People, the Badulgal and the Mualgal, or the Badulgal and the Mualgal without the Kaurareg People, since a precondition for a single, shared native title is the mutual acknowledgement of each group’s rights: Akiba at [274], [500].
The Commonwealth made similar submissions about the distinctiveness of any Kaurareg native title rights in Warral and Ului. However, the Commonwealth’s position differs from that of the State in relation to the native title of the Badulgal and the Mualgal, in that the Commonwealth submits that the Court can find that the Badulgal and the Mualgal hold native title jointly if satisfied of the two groups’ evidence of ancestral occupation, despite the claimants’ evidence that the islands belong only to their respective group.
My conclusions
On this matter, I depart from the State’s position as submitted. I consider the evidence comfortably supports a finding of a shared native title between Mualgal and Badulgal, in the same way recognised in the second shared islands determination. I consider, as with that determination, what is held is a title exclusive of all others except Badulgal and Mualgal. That exclusivity from other groups, including Kaurareg, came through very strongly. Even Mualgal witnesses, in this proceeding as well as in Akiba, were prepared to say their title excluded Kaurareg – I refer here to evidence such as that of Fr Manas – “they can come in”.
I agree with the State that it was somewhat remarkable, in the overall context of this proceeding, that so many witnesses for the applicant claimed exclusivity for their own group. It is true that no applicant witness positively volunteered that, as a matter of traditional law and custom, the islands belonged to all three groups. As I have found earlier, that is also a notable omission from the Akiba evidence. This draws out again the difficulties I have with how to frame Alick Tipoti’s evidence.
On this point, I accept the submissions of the applicant that there is a line to be drawn in how literally one assesses the “community-centric” evidence about islands belonging only to that community.
It is a very human reaction in the context of this proceeding for claimants to feel uncertain about what might happen, and what the Court might decide. For both Badulgal and Mualgal, the witnesses were very certain of their own community’s traditional rights over the island. I find they chose to stay with what they were certain about, not knowing what the Court might find. That is their customary comfort zone as well – speaking about other people’s rights was something many witnesses said they would not do. See, for example, my earlier reference to Walter Nona, and the evidence of Tommy Tamwoy:
MR BLOWES: Are those stories, those Badulgal stories, are they stories that should only be told by Badulgal or can they be told by anybody?
TOMMY TAMWOY: Only told by elders. By the uncle.
MR BLOWES: By Badulgal elders and uncles?
TOMMY TAMWOY: Yes.
MR BLOWES: If it was a Badulgal story then Mualgal people really shouldn’t be talking about it?
TOMMY TAMWOY: Mualgal? They got their own stories.
MR BLOWES: Do they?
TOMMY TAMWOY: Yes.
MR BLOWES: They tell their own stories?
TOMMY TAMWOY: Yes.
MR BLOWES: Would it be wrong for them to tell Badulgal stories?
TOMMY TAMWOY: Yes, Badulgal, we don’t talk about other places stories.
Therefore, I do not see the evidence of the Badulgal and Mualgal witnesses about their rights in the two islands being exclusive as necessarily probative against a finding of recognising a shared native title in Warral and in Ului, in favour of Badulgal and Mualgal. There are other more contemporary explanations for that emphasis in the lay evidence, and there is ample other evidence which has persuaded me that native title is held by Badulgal and Mualgal in the same way it is held for islands such as Dadalai.
In terms of the nature and extent of the native title rights and interests in each of Warral and Ului, I am comfortably persuaded on consideration of all the evidence that the Court should recognise the native title of the Badulgal and Mualgal as joint, exclusive, native title. My present view is that any determination should follow the terms of the second shared islands determination, but I accept the parties will wish to be heard on this matter.
OVERALL CONCLUSION
The parties will be given some time to digest the Court’s reasons, and to propose orders about the next steps in respect of finalising a determination of native title over Warral and Ului, including finalising a description of the native title for the purposes of a determination. A case management hearing will be listed approximately a month from now, for the Court to discuss next steps with the parties.
I certify that the preceding one thousand and thirty nine (1039) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 27 February 2023
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SCHEDULE OF PARTIES
QUD 9 of 2019 Respondents
Fourth Respondent:
WALTER TAMWOY
Fifth Respondent:
GEORGE NONA
Sixth Respondent:
RONNIE NOMOA
Seventh Respondent:
TOMMY TAMWOY
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