Rainbow on behalf of the Kurtjar People v State of Queensland (No 2)
[2021] FCA 1251
•15 October 2021
FEDERAL COURT OF AUSTRALIA
Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251
File number(s): QUD 483 of 2015 Judgment of: RARES J Date of judgment: 15 October 2021 Catchwords: NATIVE TITLE –– application under s 225 of Native Title Act 1993 (Cth) for determination of non-exclusive native title over land and waters in disputed portion of claim area – whether continuity of claimant group connection since sovereignty with land and waters of disputed portion by acknowledgement of traditional laws and observance of traditional customs – where uncertainty whether claimant group or other now extinct group(s) in possession of disputed portion at sovereignty – whether claimant group succeeded to or had transmitted native title rights and interests of extinct group(s) – whether extinct and claimant groups part of overarching society at sovereignty that had sufficient common traditional laws and customs – whether necessary to prove actual process or other facts to establish licit succession of incoming claimant group to native title rights and interests of extinct group(s) – whether sufficient spiritual correspondence between traditional laws and customs of extinct and claimant groups, as members of broader overarching society – where experts disagreed on indicia of process of licit succession – where claimant group confident in their connection to country and ability to manage its spiritual dangers – Held: licit succession manifested when incoming group able to deal with spirituality of the country, including actual or postulated spiritual dangers, according to traditional laws and customs – applicant has, by transmission, non-exclusive native title rights and interests over whole claim area.
NATIVE TITLE – where applicant claimed right to access natural resources and take, use, share and exchange resources for any purpose – whether expression of right to take resources in determination of native title under s 225 of Act should include limitations on exercise of enjoyment of right provided for in traditional laws and customs, such as requirement not to exploit resources for personal financial gain – Held: appropriate to express non-exclusive right as right to access and take resources in claim area for any purpose.
Legislation: Evidence Act 1995 (Cth) ss 73, 74, 140
Native Title Act 1993 (Cth) ss 4, 10, 11, 56, 85, 94A, 211, 223, 225, 226, 227, 238
Aboriginals Preservation and Protection Act 1939 (Qld) s 14
Cases cited: AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4) (2012) 300 ALR 193
Akiba v The Commonwealth (2013) 250 CLR 209
Croft (on behalf of Barngarla Native Title Claim Group) v South Australia (2014) 325 ALR 213
Dale v Moses [2007] FCAFC 82
De Rose v South Australia (2003) 133 FCR 325
Gumana v Northern Territory (2005) 141 FCR 457
Hammerton v Honey (1876) 24 WR 603
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1
Isaac (on behalf of the Rrumburriya Borroloola Claim Group) v Northern Territory (2016) 339 ALR 98
Mason v Tritton (1994) 34 NSWLR 572
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1638
Rrumburriya Borroloola Claim Group v Northern Territory (2016) 255 FCR 228
Sampi (on behalf of the Bardi and Jawi People) v Western Australia (2010) 266 ALR 537
Stool of Abinabina v Chief Kojo Enyimadu [1953] AC 207
The Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122
Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia (2017) 365 ALR 624
Western Australia v Sebastian (2008) 173 FCR 1
Western Australia v Ward (2002) 213 CLR 1
Western Australia v Willis (2015) 239 FCR 175
Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 329 Date of last submission: 28 September 2021 Dates of hearing: 27–30 August 2019, 2 September 2019
2–6, 19–20 March 2020Counsel for the Applicant: Mr V Hughston SC with Mr C Athanasiou Solicitor for the Applicant: HWL Ebsworth Lawyers Counsel for the First Respondent: Ms E Longbottom QC Solicitor for the First Respondent: Crown Law Counsel for the Seventh Respondent: Mr G del Villar QC with Mr M McKechnie Solicitor for the Seventh Respondent: Thynne & Macartney ORDERS
QUD 483 of 2015 BETWEEN: JOSEPH RAINBOW ON BEHALF OF THE KURTJAR PEOPLE
Applicant
AND: STATE OF QUEENSLAND
First Respondent
STANBROKE PTY LTD (and others named in the schedule)
Seventh Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.Subject to order 2, the parties confer and prepare a determination of native title consistent with their prior agreements and the Court’s reasons for judgment delivered today.
2.If any party wishes to contend that the determination of native title to be made by the Court not include a non-exclusive native title right expressed as “to access and take for any purpose resources in the claim area”;
(a)each party so contending file and serve written submissions limited to 5 pages on or before 5 November 2021;
(b)any other party file and serve written submissions limited to 5 pages as to its position on or before 26 November 2021.
3.The proceeding be listed for the making of final orders on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
TABLE OF CONTENTS
1 PRELIMINARY MATTERS
[6]
1.1 Brief chronology
[6]
1.2 Agreed facts
[15]
1.3 Proof of historical matters
[17]
2 THE LAY EVIDENCE
[25]
2.1 Kurtjar evidence
[25]
2.1.1 Fred Pascoe
[25]
2.1.2 Warren Beasley
[36]
Stanbroke’s challenges to Warren Beasley’s evidence
[60]
2.1.3 Joey Rainbow
[66]
2.1.4 Other Kurtjar witnesses
[81]
2.2 Tagalaka evidence
[118]
2.3 Other instances of Kurtjar law and customs
[126]
2.4 Difficulties with access to Miranda Downs
[134]
3 THE SUCCESSION ISSUE
[143]
3.1 The anthropological evidence – introduction
[143]
3.2 The statutory scheme
[145]
3.3 Legal principles
[146]
3.4 Stanbroke’s submissions
[162]
3.5 Expert evidence
[164]
3.6 Licit succession
[203]
3.7 Consideration
[212]
3.8 Conclusion
[231]
4 THE APICAL ANCESTOR ISSUE
[232]
4.1 Consideration
[236]
4.1.1 (1) Gilbert
[244]
4.1.2 (2) Billy and Lucy
[252]
4.1.3 (3) Lucy
[259]
4.1.4 (4) Judy
[264]
4.1.5 (5) Iffley Tommy senior, Paddy Macaroni and Macaroni Tommy
[267]
5 THE RIGHT TO TAKE RESOURCES ISSUE
[280]
5.1 The legislative context
[282]
5.2 The evidence
[285]
5.3 The anthropological evidence
[290]
5.4 The State’s submissions
[300]
5.5 Consideration
[306]
6 CONCLUSION
[328]
RARES J:
The Kurtjar people seek a determination under s 225 of the Native Title Act 1993 (Cth) of non-exclusive native title over a large area of land and waters. The Kurtjar people’s traditional land and waters are located in the south-west of Cape York, extending inland from the Gulf of Carpentaria in the State of Queensland.
One of the three issues in this proceeding is whether the Kurtjar people have been the traditional owners of, either since before 26 January 1788, when Capt Arthur Phillip claimed British sovereignty or, and by what process, have succeeded to, the land and waters, included in a large pastoral lease holding, Miranda Downs, to the east of what is undisputed Kurtjar country (the succession issue). The Kurtjar people and the State accept that Kurtjar country now includes Miranda Downs, but the holder of the pastoral lease over it, Stanbroke Pty Ltd, disputed this at all times until 9 July 2021 when it sold its interest to Hughes Holdings and Investments No 700 Pty Ltd, which became a respondent under s 85(4) of the Act. By consent on 28 September 2021, Hughes agreed that it would be bound by previously agreed statements of fact on extinguishment and would only make submissions as to the form of any orders to give effect to these reasons.
The essential dispute involved in the succession issue centres around whether the connection that the Kurtjar people now have in managing and exercising control over the spiritual potency of Miranda Downs has been continuous since before sovereignty, as they contend, or has evolved, as the State and, alternatively, the Kurtjar people contend. In contrast, Stanbroke contends that the Kurtjar people’s connection with Miranda Downs, needed to, but did not, evolve, by a process of licit or normative succession to the rights and interests of one or more now extinct indigenous peoples (the Walangama people, and or the people variously called the Ariba, Aripa or Rib people) who, pre-sovereignty, held native title rights and interests in the land and waters of Miranda Downs.
The other issues are:
(1)whether, as the applicant (comprising Joseph (Joey) Rainbow, Irene Pascoe and Shirley McPherson) contends, eight persons should be included as apical ancestors of the Kurtjar people in the description of the present common law holders of the native title rights and interests of Kurtjar country (the apical ancestor issue); and
(2)the correct description of one non-exclusive right and interest that will be recognised in a determination of native title, namely “the right to access natural resources and to take, use, share and exchange those resources for any purpose” with, or without, a limitation for which the State contends constraining commercial exploitation (the right to take resources issue).
There have been several spellings of the English language rendering of “Kurtjar”, including “Kurtijar”, used earlier in this proceeding, but I will use in these reasons the version that the applicant has now adopted.
1 PRELIMINARY MATTERS
1.1 Brief chronology
The Kurtjar people’s first contact with Europeans was when Ludwig Leichhardt’s expedition arrived in 1845. One of his party, John Gilbert, a naturalist, was killed in an attack by Aboriginal people and the Gilbert River was named in his memory. In 1868, the township of Norman River was established, which later was called Normanton. The impact of European settlement, which began in the mid to late 1860s, in the Gulf country was profound, as it has been in most of Australia.
In the late 1960s, the Queensland Government moved many first nations persons then living in camps on pastoral stations into a reserve at Normanton (the Normanton reserve).
In the 1970s, a linguist, Dr Paul Black, conducted linguistic research with Kurtjar speakers, including an elder, Rolly Gilbert, who appears to have been one of Dr Black’s principal informants. Dr Black supported the attempts of Kurtjar people to obtain ownership of a pastoral lease of Delta Downs station. In the course of those efforts he made a map with Rolly Gilbert (the Black and Gilbert map) that purported to identify Kurtjar country as centred on Delta Downs. Stanbroke emphasised that this map did not include, as Kurtjar country, Miranda Downs and other large parts of what is now the claim area to its east.
In 1982, the Aboriginal Development Commission of the Commonwealth acquired the lease of Delta Downs on behalf of the Kurtjar people. In 2002, that lease was transferred to Morr Morr Pastoral Company Pty Ltd which continues to hold it for the benefit of the Kurtjar people.
Below is a map of the claim area with pastoral lease boundaries and annotations of significant sites recorded by Dr Richard Martin, who was the applicant’s expert anthropologist.
The Miranda Downs pastoral lease is in the south‑east of the claim area, below the Vanrook pastoral lease to its north. Vanrook station also extends along the western boundary of Miranda Downs. The southern boundary of Miranda Downs is also within the claim area. Stirling/Lotus Vale station (the two stations are now merged) is a smaller holding between Delta Downs on its west, Vanrook on its north-east and Miranda Downs on its east and south‑east. The Dorunda pastoral lease is located in the north-east of the claim area, south of the Staaten River. Delta Downs station is located to the west of the claim area.
The parties’ expert anthropologists, Dr Martin, Dr Kingsley Palmer, retained by the State and Dr Ron Brunton, retained by Stanbroke (with Dr Kevin Murphy, who had been retained by the owners of the Vanrook, Stirling/Lotus Vale and Dorunda pastoral leases, namely, Vanrook Station Pty Ltd, Stirling/Lotus Vale Station Pty Ltd and Dorunda Station Pty Ltd (the Gulf Coast parties)) met together on 28 and 29 March 2019 and again on 16 April 2019, and, with the assistance of the Registrar, prepared two joint reports.
On 16 August 2019, the solicitors for the Gulf Coast parties emailed the other parties and the Court to advise that the Gulf Coast parties would no longer contest the claim of the Kurtjar people to non-exclusive native title rights and interests in the area of each of Vanrook, Stirling/Lotus Vale and Dorunda stations. That occurred shortly before the on country hearing began on 27 August 2019. The Gulf Coast parties changed their position after I refused them leave to adduce further evidence from Dr Murphy, in which he sought to withdraw from the position he had agreed with the other experts in the second joint report, namely, that the Kurtjar people held rights and interests in the land and waters of Vanrook, Stirling/Lotus Vale and Dorunda stations: Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1638.
The Court sat on country at the Delta Downs homestead when not visiting sites in the claim area.
1.2 Agreed facts
The parties filed a statement of agreed facts and substantive issues in dispute as to connection on 23 July 2019. Much of the basis for the agreement on those facts came about from the two joint expert reports.
The parties agreed as facts that:
·prior to sovereignty, and at effective sovereignty (i.e. when European settlement occurred in the claim area), there were Aboriginal peoples in occupation of the claim area;
·those peoples acknowledged and observed a common body of normative laws and customs by which they held rights and interests in, and had connection with, the claim area (pre-sovereignty laws and customs) that are likely to have included those claimed in the application, including (relevantly, to the right to take resources issue) “the right to access natural resources in those areas and to take, use, share and exchange those natural resources for any purpose”;
·the Kurtjar people and their ancestors have continued to acknowledge and observe at least some of the pre-sovereignty laws and customs;
·the Kurtjar people’s contemporary system of laws and customs under which rights in land are held remains rooted in the pre-sovereignty system of laws and customs, notwithstanding that parts of the system have undergone varying degrees of adaption, loss and change;
·the rights and interests so held in land and waters are inalienable and held communally;
·since effective sovereignty, it is likely that estate groups (i.e. a group with native title rights and interests in the particular land and waters) in relation to parts of the claim area have become extinct and those areas are now included in the claims of the Kurtjar people;
·the pre-sovereignty laws and customs provided for succession to country in situations in which a group holding rights became, or was becoming, extinct;
·succession did not necessarily occur on the basis that the neighbouring clan estate would succeed to the country of the extinct or nearly extinct clan estate; and
·a critical component of succession in the region in which the present claim is made was that the succeeded and the succeeding clans had to share spiritual correspondence, such as totemic commonality, shared dreaming tracks, spirits and associated rituals.
1.3 Proof of historical matters
Both the common law and the Evidence Act 1995 (Cth) address the question of how to prove what laws and customs once existed and their content, even though no-one is now alive who can testify about what occurred in the past and there is no written documentation of that subject matter, as is often the case with cultures that, like Australia’s First Nations peoples, had no written tradition.
First, s 74(1) of the Evidence Act provides that the hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right. Secondly, s 140(2) requires a court, in deciding whether it is satisfied that a party has proved its case on the balance of probabilities, at a minimum, to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. At common law, evidence of rights and events alleged to have existed or occurred beyond living memory can be proved by both expert evidence and lay evidence of living persons, including members of groups claiming to hold native title or similar rights (which Lord Cohen, giving the opinion of the Judicial Committee comprising Lord Normand, Lord Reid and himself, termed “traditional evidence”: Stool of Abinabina v Chief Kojo Enyimadu [1953] AC 207 at 216).
In Gumana v Northern Territory (2005) 141 FCR 457 at 510–511 [194]–[201], Selway J discussed the method of proving custom and genealogies by oral evidence where there is no, or limited, documentary evidence or where the fact to be proved occurred at a “time immemorial”. He said that the difficulties in obtaining evidence from times well past “were ameliorated by the readiness of the common law courts to infer from proof of the existence of a current custom that that custom had continued from time immemorial” (at 511 [198]).
In Sampi (on behalf of the Bardi and Jawi People) v Western Australia (2010) 266 ALR 537 at 558 [63], North and Mansfield JJ said:
On the basis of this and like evidence the primary judge should have found that the Bardi and Jawi people acknowledged the same laws and observed the same customs concerning rights and interests held in land and waters at least from the present back until the time of these witnesses’ “old people” or grandparents, namely, the latter part of the 19th century.
The question then arises whether the court can infer the existence of that acknowledgement and observance from about the latter part of the 19th century back to sovereignty. Selway J addressed this issue in Gumana v Northern Territory (2005) 141 FCR 457; 218 ALR 292; [2005] FCA 50 and said at [201] by reference to the history of the approach of the common law to the proof of custom:
[201] … where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.
In the present circumstances the constitutional status and elaborate nature of the rules in question make it improbable that the system arose in the relatively short period between sovereignty and the time of the witnesses’ “old people”…
(emphasis added)
And, in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 at 99–100 [341]–[343], Lindgren J applied Gumana 141 FCR at 510–511 [194]–[201], noting that an inference should be drawn by applying logic and human experience to the facts proved by admissible evidence: see too Isaac (on behalf of the Rrumburriya Borroloola Claim Group) v Northern Territory (2016) 339 ALR 98 at 133 [222] per Mansfield J; Mason v Tritton (1994) 34 NSWLR 572 at 586E–588E per Kirby P, 604D–F per Priestley JA with whom Gleeson CJ agreed at 574C; The Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 at 137–138 per Isaacs J.
In reaching his conclusion in Gumana 141 FCR at 510–511 [194]–[201], Selway J drew on the lucid exposition by Sir George Jessel MR in Hammerton v Honey (1876) 24 WR 603 at 604 of the principles that applied at common law to determine whether a right could be claimed by custom, as opposed to by prescription. Jessel MR explained (at 603) that at common law:
… A custom… is local common law. It is common law because it is not statute law; it is local common law because it is the law of a particular place as distinguished from the general common law. Now, what is the meaning of local common law? Local common law, like general common law, is the law of the country as it existed before the time of legal memory, which is generally considered the time of Richard I.
(emphasis added)
Jessel MR said that the common law of a place, as a general rule, was proved by usage. He held that any usage to prove a custom as an exception to the general common law had to be both reasonable and continuous, that is “there must be long, continuous, habitual usage without interruption”. He explained that this conclusion followed from the fact that people do not usually acquiesce in the disturbance of their rights (at 603–604). As Jessel MR recognised (at 604):
It is impossible to prove actual usage in all time by living testimony. The usual course taken is this: persons of middle or old age are called, who state that in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that the usage has prevailed from all time.
(emphasis added)
The Master of the Rolls said that there were two kinds of countervailing evidence, namely, first, that of other old persons who testify to the contrary of what their counterparts had said and show that there was interruption to the usage, or, secondly, evidence that, based on the nature of the case, there was a legal difficulty or obstacle that made the alleged assertion of the right impossible. And, as Jessel MR recognised, both prescription and custom “are legal fictions invented by judges for the purpose of giving a legal foundation or origin to long usage” (at 604).
2 THE LAY EVIDENCE
2.1 Kurtjar evidence
2.1.1 Fred Pascoe
The Kurtjar people have a traditional custom or ritual of “warming up” persons who are strangers to their country. This consists of the Kurtjar person rubbing sweat from his or her underarm on the stranger’s face and body. The purpose is to inform the Kurtjar spirits, that might otherwise harm the stranger, that he or she has come onto Kurtjar country properly (i.e. with permission from a Kurtjar person able to grant such authority). In addition, as Fred Pascoe, who was born in 1967, said:
When I go to places that I haven’t been before on Kurtijar country, if I’m there with old people they sing out. Otherwise I sing out and introduce myself, say who I am and where I come – well, what I’m there for.
Fred Pascoe said that, as a Kurtjar, he could go anywhere on Kurtjar country “as long as I sing out to… the spirits of my ancestors”. He tells them who he is in Kurtjar language, to whom he is connected and what he is there for, such as “to get wanthork (fish), or yaangirr (turtle)”.
His mother, Irene Pascoe (a member of the applicant), was Kurtjar, but his father was not. He said that when his grandfather, Jubilee Slattery, an elder and leader of the Kurtjar people, or another took him to a place on Kurtjar country for the first time or to one that the person did not visit regularly, his grandfather (or other old people) would call out in Kurtjar language to let the spirits know who they were, what they were doing there and why they had come.
Fred Pascoe’s grandfather, Nardoo Burns, gave his totem, the black cockatoo, to Mr Pascoe and later told him: “That’s all our old people, that’s our totem, that’s where we go when we finish… we come from the Smithburne [River]”. He said that his grandparents had explained to him that the significance of having a totem was that “[i]t ties me to that country… to the animals of that country” and that “the red black cockatoo is our ancestor, so he ties me to this country” as an aspect of the Dreamtime, when “the animals walked this earth in that time as our… ancestors”. Fred Pascoe told Dr Martin that Nardoo Burns had said that the black cockatoo was the totem of his brothers, most of whom were born on the Smithburne River, and that their family came from the Smithburne River. Fred Pascoe also said that Nardoo Burns had told him that Judy and Biddy Captain were both born and reared on the Smithburne River and that they married two Staaten River men; namely Tommy Burns (Nardoo Burns’ father) and Rainbow Christie. He said that Nardoo Burns did not tell him how the family got the black cockatoo as its totem. Fred Pascoe also told his children that it was their totem and whenever he sees one flying he tells his children: “That’s our old people flying… don’t be afraid because that’s our old people who have gone before”.
Fred Pascoe grew up at the bottom camp on the Normanton reserve at which only Kurtjar people lived. The reserve was established in 1948 for Aboriginal people. Its population increased in the 1960s when indigenous stockmen and their families were forcibly removed from the pastoral holdings on which they worked. The reserve was discontinued in about the late 1970s or early 1980s. It was not on Kurtjar country. Fred Pascoe said that he and others living at the reserve would swim and, depending on the season, fish various species in the Norman River. He said that a mixture of Aboriginal persons, including Kurtjar, Gkuthaarn and Kukatj, lived at the top camp at the reserve because of inter-marriages. He remembered corroborees occurring regularly outside Jubilee Slattery’s house. He said that these kept Kurtjar culture active with, mainly men, singing old songs in Kurtjar and dancing traditional dances. He said that the children participated and learnt the songs and dances.
Jubilee Slattery and his wife, Lily, took their grandchildren, including Fred Pascoe, and others hunting on Kurtjar country, including, relevantly, on Miranda Downs, at Glencoe and Picnic Waterhole (both located at or around the western edge of Miranda Downs). They visited the Mail Chain Yard (which was used to hold or receive mail), near Walker’s Creek and Kitty’s Hole, both of which are located well inside Miranda Downs. Fred Pascoe said that his grandfather “would always sing out to our old people at those places”.
Fred Pascoe recognised that, as with him and his family in respect of Myra Vale station on the Smithburne River (which is now an outstation on Delta Downs), some families have a particular connection with an area on Kurtjar country. Where that is the case, if he intends to visit there, he will inform that family, or one of its members, both as a courtesy and because “it’s more so to protect me as well in case being younger… I might not have the intimate knowledge of that country that someone who’s senior… would have”. This is necessary to ensure that where he wants to visit is not, for instance, a bora ground, a burial ground or an area where Kurtjar law prohibits some activity or there is spiritual danger.
Fred Pascoe explained that in the early 20th century, Kurtjar and other Aboriginal peoples were rounded up and put into camps to live on cattle stations or, if they did not go into the camps, the pastoralists shot them. Thus, each of the pastoral leaseholdings, like Delta Downs and others that are within the claim area, namely, Miranda Downs, Vanrook, Stirling/Lotus Vale, and Macaroni (which was in the north-west) had camps filled predominantly with the Aboriginal clan or tribe on whose country the station was located. Because those people knew their country well, the pastoralists could use them as ringers and stockmen.
As a child, Fred Pascoe was a frequent visitor to a camp of Kurtjar people at Glencoe after it had become part of Miranda Downs station in the 1970s. He remembered that Fred and Jane Midlan, Barney Rapson (senior) (being the husband of Doris Rapson, née Buckley: various witnesses spell his name as either “Barnie” or “Barney” and I have used “Barney” in these reasons to signify this person), his brother, Royal Tommy, and Katie Tommy (née Burns, who was Mr Pascoe’s grandmother) were working there. Mr Pascoe said that the then manager of Miranda Downs, Phil Schaffert, was supportive of using Aboriginal ringers who lived in the camp at Glencoe. Mr Pascoe worked with lots of older Kurtjar men, including his grandfather, Nardoo Burns, Fred Midlan and Sandy Rainbow, as well as his uncles, Roy Beasley, Rolly Beasley, Warren Beasley, Paul Casey, Hector Casey and Frank Casey, who told him about Kurtjar sites not only on Delta Downs, but also on other stations including Miranda Downs. They told Fred Pascoe, from the time he was a child, that Miranda Downs was Kurtjar country and took him there to fish and hunt. When they went onto Miranda Downs:
… whether it was with Jubilee Slattery or with some of the other elders, they’d – you know, they’d sing out in our language and told the spirits that we were there, our old people….And they used to tell us kids, “This is your country, you’re right to come here and you can fish at this waterhole and you can shoot that wallaby off that land, and you can hunt and fish.”
Mr Pascoe recounted that the “old fellas” with whom he worked on cattle stations always talked about a senior lawman, Saltwater Jack, who was an acknowledged Kurtjar tribal leader. The old fellas described Saltwater Jack’s status and travels around Kurtjar country. They told him that Saltwater Jack swam in the Gilbert River in flood (in the south of the claim area), went to visit Kurtjar people on Macaroni station (in the north-west) for ceremonies, the Staaten River area (in the north) in the wet season to participate in Kurtjar corroboree and would walk through to Vanrook and Miranda Downs stations to see family. Mr Pascoe had always been told that the Kurtjar people’s southern boundary was the Norman River.
Importantly, Fred Pascoe said that he believed that, under Kurtjar law, he had a right to the resources of his country without limitation and “I can take what I want as long as I don’t break the laws of my country – my people” and “I have the right to take those resources… as long as I don’t break my laws in doing that… That’s my resource. That’s my country”.
2.1.2 Warren Beasley
Warren Beasley was born under a tree in 1947 on Myra Vale station. He calls the tree, which is still standing, “mil ntoong, my home. It means that’s mine”. He was a knowledgeable Kurtjar elder and a laakinchargh or witchdoctor. He gave detailed evidence at the hearing. His father was Beasley Bumble, who was the son of Bumble B. Bumble B was the equivalent of a king of the Kurtjar.
Bumble B was a ringer who spoke Kurtjar and taught his grandson, Warren Beasley, about his family. Warren Beasley had retired by the time of the hearing and lived at Delta Downs. Over the years, he worked with many senior Kurtjar men on various stations in Kurtjar country who showed and told him of how far Kurtjar country extended, important Kurtjar places, secret places, poison grounds and Kurtjar laws. Warren Beasley said that, when he was young, Bumble B told him that he had worked at, and knew a lot about, Miranda Downs and that he (Warren Beasley) should see Miranda Downs for himself. In his youth, Warren Beasley worked a lot with Bumble B on stations.
When Warren Beasley worked as a ringer and stockman on Miranda Downs, Bumble B visited him from his home on Myra Vale. They rode to places over a week or so at a time, where Bumble B showed Warren Beasley burial, bora, poison, dangerous and secret grounds. Bumble B showed his grandson areas to which he warned him not go on his own because “you won’t come back”. They went riding with Royal Tommy to the junction of the Einasleigh and Gilbert Rivers, which was near the old Miranda Downs homestead, and both older men told Warren Beasley that the extent (in effect, the eastern boundary) of Kurtjar country was up to the Einasleigh River and that on the other (eastern) side of the junction was Tagalaka country. The older men told Warren Beasley that he could not go across that boundary. They also showed him burial sites nearby. In video evidence, Warren Beasley pointed out where Bumble B and Royal Tommy had told him that two Kurtjar men were buried at a site near the current Miranda Downs’ homestead.
Bumble B and Royal Tommy told Warren Beasley that as the Gilbert River flowed west towards the sea, it ran through Kurtjar country, traversing, among other land, Miranda Downs. Warren Beasley said that the Smithburne River (which runs north-west towards the Gulf a relatively small distance south of the Gilbert River) was also on Kurtjar country. They showed him the out camp at (Wild) Rice Lagoon (which is north-west of the junction of the Einasleigh and Gilbert Rivers), where Warren Beasley’s younger brother, Rolly, worked as caretaker when Warren Beasley also worked on Miranda Downs. The older men told Warren Beasley that this was also Kurtjar country.
Bumble B and Royal Tommy also took Warren Beasley to numerous places along Walker’s Creek (which runs south-west towards the Gulf, further south again from the Smithburne River), including Rocky Waterhole, Kitty’s Yard (an old bronco yard) and Kitty’s Hole. Warren Beasley said that there was a permanent waterhole at Kitty’s Yard with the Kurtjar name Injerrilk. There were spirits of old fellas all around there. Royal Tommy, Bumble B and his parents also told Warren Beasley that the country between Rocky Creek (that flows into the Carron River, well south of Bayswater waterhole) and Walker’s Creek to its north was Kurtjar country. That area lies to the south and west of the old Miranda Downs homestead, and Rocky Creek and the Carron River both flow west, south of Kitty’s Hole.
The southern boundary of the claim area for this application follows the Carron River from the extreme south-west point of the western boundary and then follows Rocky Creek to the east for some distance until the boundary heads north-east below Kitty’s Yard.
Warren Beasley said that old Tagalaka men were also working on Miranda Downs when he was there with Royal Tommy, Bumble B and Beasley Bumble. The elders told him that he had to protect and visit Miranda Downs “and I also even talk Kurtjar – because they’re all Kurtjar and the spirits understand what I mean”.
Warren Beasley visited Kitty’s Yard, on Walker’s Creek, with Joey Rainbow, Lance Rapson, Irene Pascoe, two of his grandchildren and the applicants’ lawyers where they made a video that was in evidence. During this video, Warren Beasley explained that when they arrived, because they had not there before, he had warmed up both his grandchildren and the lawyers by putting his underarm scent over them and blowing in their ears “so they don’t get sick… and they won’t be annoyed by the old fellas”. As Joey Rainbow explained, it was necessary for Warren Beasley to warm the grandchildren up, even though they were Kurtjar. That was because Kurtjar law and custom required a Kurtjar person who had not been to a site before to be introduced, to let “the old people know that we [were] bringing them young ones through… [w]hen they first visit”. He said that Kitty’s Yard was Kurtjar country and there was a chacharr in the waterhole there as well as spirits of old Kurtjar ancestors.
A chacharr is a rainbow serpent or spiritual being that Kurtjar people believe lives in waterholes. They believe that if they go to a waterhole where a chacharr is, they must be quiet and show respect else the chacharr will make them sick, cause them to become lost or, as Warren Beasley described it, “you will walk away and not know how to come back”. He said that one could not dig, make a disturbance or throw matter into the waterhole because that would upset the chacharr, which would then leave and cause the waterhole to go dry. As Warren Beasley explained, if a stranger wants to visit a waterhole where a chacharr is, he or she needs to get permission and must be warmed up by a Kurtjar person, who then also rubs wet mud on him or her and blows in the person’s ears to protect them. If that occurs, the stranger can then safely go into the water.
The Kurtjar also believe that one cannot take greasy food or have greasy hands near the water because if the chacharr smells the grease, it will make the person sick. However, a Kurtjar person can wash or clean his or her hands with mud from the bank before going near the water without needing to be warmed up properly, as a stranger would need to be (using the ceremony described above). In addition, Kurtjar people believe that pregnant women must not go into waterholes where a chacharr is because it will smell her and both she and the baby will become sick, unless she is protected by having mud rubbed all over her. Warren Beasley said that all Kurtjar women are told this story.
Moreover, Warren Beasley, as a witchdoctor, can use a chacharr to help a Kurtjar woman fall pregnant when a couple is having trouble conceiving. The male tells the laakinchargh and he gets the couple to go into the water at a waterhole where a chacharr is present. The woman will be unaware of the chacharr, which will then bite her on the stomach. She will say that something in the water bit her there, and the laakinchargh will tell her that it was something such as a little fish, but, in fact, will know that the chacharr put a baby there. Importantly, once the woman is pregnant she cannot go back into the water.
Warren Beasley became a laakinchargh like his father and grandfather (Bumble B). This occurred when Warren Beasley was being chased by another dangerous spiritual creature, a red legged (or leg) devil (dhaarrichergh). The chacharr protected him by swallowing him until the red legged devil went away, when it regurgitated him. After this, he had healing and other powers. Warren Beasley said that a red legged devil would not come to a waterhole which had a chacharr if it wanted to harm him because the chacharr would protect him. He said that he is the only laakinchargh. Warren Beasley believed that, as a laakinchargh, he could make it rain during the dry season by going to a waterhole where a chacharr is and either breaking its tail (dhoon) in half or, if he had a spear, spearing it anywhere along its body. If he breaks the dhoon, the crack of the bone on its break creates a big wind and then rain. If he spears the chacharr, the spear will shake and then he has to retrieve the spear and get away. The aftermath of the spearing is that the chacharr becomes very upset, raises its head and a wild thunderstorm, with wind and dust, ensues.
On the first occasion that Warren Beasley worked at Miranda Downs, Bumble B visited him and took him on horseback to Rocky Waterhole on Walker’s Creek. They went there with Royal Tommy and Gordon and Sandy Rolly. The old fellas told him it was Kurtjar country and that a waterhole with plenty of water and a chacharr was there. Bumble B told him its Kurtjar name was Milkarr and that it was a secret place that was not safe to visit without permission, because of the chacharr there. Bumble B said that one had to have a lawman perform a special ceremony and have mud from the waterhole rubbed on him or her.
Warren Beasley gave further video evidence on a visit to Milkarr. He said that the Kurtjar call the chacharr that lives at Kitty’s Hole Mirran.gan. He said that he needed no permission to go there because it was Kurtjar country but if others, such as a Tagalaka person, went there without permission they would get sick because the chacharr would smell them. He said that the spirits, including Royal Tommy’s, were there too.
Bumble B also took Warren Beasley to other waterholes including one south of Milkarr called Warrkil Warrka and another to the south-west of Milkarr called Wanggarich (on Jerry Creek near the boundary between Miranda Downs and Ashbourne Station) at both of which the chacharr lived.
He said that his father and Bumble B told him that they had been to corroborees at a large corroboree or bora ground at a place near Kitty’s Hole that was about a kilometre south of Walker’s Creek. Warren Beasley said that there was also a Kurtjar burial ground near this bora ground.
The Kurtjar call the spirits of their ancestors mighath, also called rrorkird, and must pay them respect else the mighath “will go against you”, as Warren Beasley said. Under Kurtjar traditional customs, when a person successfully hunts or fishes, he must leave a portion of the spoils for the spirits of the ancestors at the place where he found the food. The mighath, if upset, can cause a person to lose their way, prevent him or her catching any fish or animals or follow the person home and choke him or her. The Kurtjar believe that they need to be quiet in the bush to pay respect to the mighath. They have to sing out to the mighath when they want to fish at a waterhole telling them that they have come for fish and turtle and have nothing. Warren Beasley explained an important Kurtjar custom, namely that “you can’t take too much and you have to cook and leave some for the mighath. If you don’t, next time you come you will get nothing”.
When giving evidence on country at Halfway Waterhole at Glencoe, just to the west of the western boundary of Miranda Downs, Warren Beasley said that that was Kurtjar country. He said that a chacharr was in the waterhole there and, because of its presence, it would never go dry. He said that the waterhole contained plenty of fish and turtle to eat. He pointed to a bank on the other side of the waterhole from where he was giving evidence and said that was where Kurtjar ancestors were buried. He said that Bumble B and Royal Tommy had told him that Halfway Waterhole was a meeting place where Tagalaka people would come for meetings at the invitation of the leader or “king” of the Kurtjar people, such as Bumble B. He said that Bumble B sent a messenger with a stick east to find the leader of the Tagalaka people to invite them to a corroboree at Halfway Waterhole. The Tagalaka made their way there by following Walker’s Creek west from their country to Halfway Waterhole, where the two peoples had a big meeting at which several activities occurred. Warren Beasley was present, in his youth (when he was about 14, 15 or 16 years of age and before he began working there) when one such meeting occurred. The Kurtjar elders would warm the visitors up and welcome them. The elders of both peoples would talk to each other. They would then spear fish and turtle in the waterhole for all those present to eat after cooking them over a big fire. Warren Beasley said that after the “big feed” or feast the two tribes would “shake a leg” together, play music, sing, dance and have a corroboree together, where each tribe would swap (or, I infer, trade) weapons, such as spears and boomerangs, for grinding stones or shields. Warren Beasley said that the laakinchargh would break the chacharr’s tail at Halfway Waterhole during the corroboree with the Tagalaka people “to show them what a Kurtjar can do, and they show us something now what they can do”.
Because of the significant influence of the tropical wet and dry seasons on the land and waters in the Gulf of Carpentaria, the ability of indigenous peoples to manage the spiritual dangers of places involving water can be seen as fundamental. Much of the on country evidence reinforced the importance to Kurtjar witnesses of the ability to know of and manage the presence of a chacharr, if present, at any waterhole and other spiritual beings or influences at particular places.
Wilson’s Hut was a main stock camp located in Miranda Downs on the Gilbert River, to the south of Rice Lagoon. Warren Beasley said that it was also in Kurtjar country. To the north-west of Wilson’s Hut is Fred’s Hut, which is on the Gilbert River, and also on Miranda Downs, close to its north most boundary with Vanrook station. Warren Beasley said that Fred’s Hut was also in Kurtjar country. South-west of that, near the western boundary of Miranda Downs with Lotus Vale station, is Bayswater waterhole, another permanent waterhole, which Mr Beasley said in video evidence Royal Tommy, Bumble B and other old fellas, who worked on Glencoe and Miranda Downs, had told him was also Kurtjar country.
He said that there was a water fairy or water gin at Bayswater waterhole, as well as a chacharr. He said that the water gin lived in rocky waterholes and was like a mermaid, namely, she had long hair, a woman’s head and torso and a lower body in the form of a fish’s tail. The old fellas told him that a water fairy had powers like a laakinchargh. He said his old people had told him that people had to be careful of the water gin. If a man jumped in the water to catch her, she would create a whirlpool, pull him under, he would never resurface and his body would never be found. However, if the man caught her on the bank of the waterhole, he had to cut and burn her hair, warm her up and smoke her. If the man did that, her tail would fall off and she would become an ordinary woman who would be his wife for life, have children with him and give him the special healing powers of a laakinchargh. Moreover, if the man did not destroy her hair and she ever retrieved it, she would return to the waterhole and become a water gin again.
The old fellas told Warren Beasley that Bayswater waterhole would never dry out because of the presence of the water fairy. He said that if a stranger went there without a Kurtjar person to warm him or her up and speak to the water fairy, the stranger would get very sick. If the stranger went near the water, either the chacharr or water fairy would use its tail to swipe him or her into the water as powerfully as a crocodile. The spiritual being would then create a whirlpool, take the stranger underwater and his or her body would never be found.
Warren Beasley gave evidence at a site called warrgi’s (or black dingo) dreaming adjacent to a road on Delta Downs station, north-east of the homestead. He said that Bumble B and Beasley Bumble (his grandfather and father) and another elder, “old Midlan”, had told him of this place and its significance. He said that dingos had two names in Kurtjar, warrgi and ruaak, the former being black and the latter white or red. He said that he was told that, at this dreaming site, a warrgi mated with a ruaak after they had travelled there from Shell Ridge (which was well to the south on Delta Downs). After the mating, the ruaak turned black, returned to Shell Ridge and had a litter of red and white pups. The warrgi went north to Kowanyama country. Since then, the location of the warrgi dreaming was the place where dingos mated in the season. Because he was responsible for the site, Warren Beasley created a song and dance to memorialise the events that occurred there and caused a fence to be erected around the site to protect it as the home for the dingos. He said that it was like a bora or poisoned ground, in the sense that if one hurt a dingo there “you’re crippled for life”. But this is not a bora ground, that’s a difference place. But this is the place belong to that warrgi, the dog”. He said that dingos could not be killed there.
Warren Beasley said that Kurtjar have magic men, being a laakinchargh, as I have noted, and also a wherrte (fireman). He was also a wherrte, which means “I am the boss of fire”. Four Kurtjar men can be in a fire ceremony. The knowledge of what a fireman does is secret and can only be passed on to an appropriate elder. Firemen can also use a smoking ceremony to cleanse the spirit of a dead person from a house so that someone can live there.
Stanbroke’s challenges to Warren Beasley’s evidence
At one stage on the morning of the fourth day of his oral evidence, Warren Beasley said that his grandfather, Rolly Gilbert, had not talked to him about the boundaries of Kurtjar country. He said that the only people who had were Royal Tommy, Bumble B and his father and that they had told him that the boundary went to “Walker’s Creek that runs, leave the Gilbert, that’s our boundary”.
Stanbroke submitted that this evidence supported its contention that the boundary of Kurtjar country was considerably north of the claim area boundary of Rocky Creek. However, I understood Mr Beasley’s answer to refer to the eastern extent of Kurtjar country because, first, the question was about where the boundary went to, and, secondly, the answer referred to the junction of the Gilbert River and Walker’s Creek, which is near Wilson’s Hut and the junction of Gilbert and Einasleigh Rivers. I also observed that Mr Beasley, who was elderly, appeared to be tired when he gave that answer.
Stanbroke also placed considerable reliance on what Dr Martin had recorded in his first report, namely, that very early during his fieldwork on 20 July 2015, Warren Beasley had told him “how Kurtjar people had come to ‘keep an eye on’ Miranda Downs station. Dr Martin recorded Mr Beasley saying:
Tribe here [at Miranda], they’re all gone…. I just forget them…. Lance [Rapson] mob know ‘em … from Croydon. Tagalaka people, like Lance [Rapson] now, his father [Lance Owens] from up around there…. They all gone from over here. They call ‘em Tagalaka… But they don’t worry about this country see…. Some went away and I don’t know the rest they might have buried them here. There’s a lot of place here that I don’t know around here. There was half of them mob sort of married into the family. Casey mob, and the Beasley and the Bynoe, see they all mated up with their mob in the family. They married their way into Kurtjar then they sort of come to their country, to Normanton, we all sort of went together…. Where they went out … we keep an eye on it, Kurtjar keep it, in my line with the Kurtjar, even though they gone out, we keep it going, don’t want to let it go to nothing. Like Kurtjar, me, if I let it go to the pack [i.e. fail to look after it], then no-one’s gotta think about it. They’ll say, ‘oh well, there’s a place there where them old people was’, but they won’t worry about it, that’s why I like to keep go on with it, keep an eye on it and carry that name for it…. I reckon, see like a place where they all gone I reckon like you say to me, if I keep it going save letting it go to nothing, you understand? When they talk, they Tagalaka mob, I can understand a fair bit of it, I understand what they mean and what they’re talking about. If I talk language, they understand what I’m talking about.
(emphasis added)
Dr Martin characterised what Warren Beasley told him on that occasion as “an ambiguous example of a historical succession event”. In his report, he opined that Mr Beasley was referring to Lance Rapson’s father, Lance Owens, who was a member of the Tagalaka Aboriginal Corporation Registered Native Title Body Corporate (RNTBC). Dr Martin said that it was not his view that Mr Beasley referred to the area on Miranda Downs as having been originally Tagalaka and wrote:
Rather, in my view, Warren Beasley is here illustrating what is described in the anthropological literature as ‘strategic amnesia’ based on ‘the brief reach of history and limit of recall’ (Sansom 2001, 2006). As I discuss in my August 2017 Report at [233] and [234], such examples of ‘strategic amnesia’ are to be expected in the context of succession, as contemporary research participants come to see areas into which their forebears succeeded as simply always belonging to their group, as previous groups’ histories are forgotten.
(emphasis added)
Dr Brunton said that the term “strategic amnesia” was not generally accepted in anthropology, but said that it was considered that there is, in Aboriginal peoples, “amnesia about earlier generations in genealogies” and that the correct term was “cultural amnesia”. However, importantly, he did not disagree with Dr Martin’s reasoning, saying that “it certainly occurs”. Dr Palmer also expressed doubts about the expressions “strategic amnesia”, “cultural amnesia” and “amnesia” in this context, but said that it was generally accepted by a number of anthropologists that:
… when the process of succession is complete, then there is no knowledge within the group who have taken over that it was anything other than their own country. How long that takes is another matter and is probably context driven.
The experts agreed that Aboriginal peoples’ oral histories, or oral traditions, have a shallowness over three or more generations. I will return to this topic in discussing the succession issue below. However, I consider that Warren Beasley’s evidence that the boundary of Kurtjar country went to where Walker’s Creek left the Gilbert River is an illustration of the shallowness or frailty of orality in recording histories and traditions. I formed the view that his other evidence, to which I have referred, more accurately reflected his belief about the historical information that his old fellas or elders had passed onto him as to the extent of Kurtjar country going further east to the junction of the Einasleigh and Gilbert Rivers. I accept the evidence of Dr Martin and Dr Palmer that what and how Warren Beasley told Dr Martin on the 2015 field trip about country “we keep an eye on” is some evidence of the loss of traditional memory about earlier land ownership in the Miranda Downs area.
2.1.3 Joey Rainbow
Joey Rainbow, who is a member of the applicant, was born in 1960 on Myra Vale station. His father, Sandy Rainbow, was Kurtjar, his mother, Sheila, was Kukatj and his grandfather, Rainbow Christie, had been born on Dorunda station. Joey Rainbow’s grandmother was Biddy Captain, who was the daughter of two Kurtjar, Captain and Rosie. In about the mid-1960s, the family and all the other Kurtjar living on Myra Vale and other stations were moved to the Normanton reserve.
Rainbow Christie and other old fellas told Joey Rainbow that the Norman River is the southern boundary of Kurtjar country and to its south was Kukatj country (being outside the claim area). Joey Rainbow also said that, when he went there in his youth with Rainbow Christie and his father, they told him as they headed eastwards along, and north of, the Carron River, Fish Hole, and Rocky and Willis Creeks, that Kurtjar country was on the north side of those water courses. His grandfather and father told him of places to which he could not go or which were sacred sites as they went there to hunt and fish with a spear (because, in those days “none of our people were allowed with a gun”).
After he left school in about 1974 or 1975, Joey Rainbow worked as a stockman. In about the early 1980s, Joey Rainbow was droving cattle from Stirling Station (which is on the western side of Miranda Downs and south of the Gilbert River) to Strathmore Station (which is on the eastern boundary of Miranda Downs) towards old Miranda Downs homestead, which is on Miranda Creek near the junction of the Einasleigh and Gilbert Rivers on the eastern boundary of the claim area. On that occasion, Joey Rainbow worked with Sandy Rolly, Gordon Rolly, Alec McDermott, Lester George, Percy Midlan and Lionel Bee, who were all Kurtjar men. Alec McDermott was an old fella who would ride next to Joey Rainbow from time to time as they worked the cattle east. Alec McDermott told Mr Rainbow to avoid some areas because they were burial sites for old Kurtjar, being stockmen and persons before there were stockmen (which I infer was before European settlement). On the cattle drive, old fellas told Mr Rainbow, when around the old Miranda Downs homestead, that it was Kurtjar country up to there but on the eastern side it was Tagalaka country. Alec McDermott, Sandy Rainbow and Gordon Rolly pointed out massacre sites that were important for Kurtjar in the vicinity of Kitty’s Yard or Hole and going north-westwards up from there towards the Staaten River. Just west of the most eastern point on the claim area boundary, north-east of the junction of the Einasleigh and Gilbert Rivers, there used to be a trading post for Cobb & Co.
Joey Rainbow said each of Alec McDermott, Sandy Rainbow and Gordon Rolly told him that, as one went eastwards, the country to the north of the Carron River and Rocky Creek (which run along parts of the southern boundary of the claim area) is Kurtjar, to the south is Tagalaka and north of Tagalaka country on Strathmore station (which is the east of the claim area) is Ewamian country.
In a video taken at Station Waterhole, Joey Rainbow said that a water gin lived in that site. He said that a water gin was a “very sacred thing”. He explained that she would flap her tail on the water at night to coax a single man, because a water gin was “always looking for a husband”. However, if she could lure him into the water, she would kill him instead. He said the man had to convince a water gin that he wanted her to be his wife and persuade her to get out of the water and, if he did so, he had to warm her with leaves, her tail would fall off and she would assume the body of a woman who would never leave the man. He also said that the successful male would “become a very clever man” like a laakinchargh. Mr Rainbow also said that some people cut the water gin’s hair, others did not, and that if the man did so he could not give her hair back to her. He also said that he knew of numerous waterholes where there was a water gin, including Evergreen (in the Staaten River National Park, Bayswater, Kitty’s Hole and Rocky’s Hole. He too emphasised that it was essential to get and keep the water gin away from the waterhole whence she came. Mr Rainbow said that Kurtjar people had a duty to look after and protect the sacred place so that they and others would not get really sick.
Prior to the experts agreeing during their concurrent evidence that Tommy Burns was a “top end” apical ancestor of the Kurtjar people (i.e. from the north of Kurtjar country), his status was in dispute. There was video evidence that recorded Warren Beasley, his nephew, Lance Rapson and Joey Rainbow, visiting the burial site of Tommy Burns on Dorunda Downs station, in the north of the claim area. Warren Beasley pointed out a mark placed by Tommy Burns’ family (including Warren Beasley’s uncle, Royal Tommy, who was the deceased’s son in law) on an old tree adjacent to a stockyard that indicated where the site was. He said that Tommy Burns’ spirit was at the site and moved around its immediate environs, including to some nearby dongas. As they left the site, Warren Beasley spoke a loworr, a ritual in Kurtjar language. He spoke to the spirit as if it were a son of his to comfort and inform it that it could now go to sleep.
The group involved in that video evidence walked to Station Waterhole close to Tommy Burns’ burial site. As they did so, a large goanna followed them. Mr Beasley, Mr Rapson, and Mr Rainbow said that this was unusual behaviour because normally a goanna would stay away from people. The three men explained that this creature was a rrorkird, or as Mr Beasley explained “he belongs to that old fella up there”, namely at the burial site. Mr Rainbow said that the goanna’s behaviour was attributable to the spirit of Tommy Burns coming to “welcome us back on country”. The three men said that it was not possible to hurt an animal that behaved like that goanna because such an animal was the totem of a deceased’s spirit. Warren Beasley said in the video made the next day at Kitty’s Hole (see [43] above) that he had dreamt overnight about the goanna that had followed them at Station Waterhole the day before and realised that it “was the spirit of my old boy”, Tommy Burns.
During his oral evidence, Joey Rainbow expanded on the significance for the Kurtjar of animal totems, also called dreamings. He said that under their laws and customs every person has such a totem and that “when they come up, they are all a part of us”. A baby is given a totem at birth, “when they take your navel cord”. As a consequence, a Kurtjar person cannot eat the creature that is his or her totem. For example, Mr Rainbow said that the barramundi was the totem of his grandfather, Rainbow Christie, and the albino saltwater crocodile was his totem. He said that, under Kurtjar law and custom, his totem connects him to not only Kurtjar country but also other people with the same crocodile totem.
Joey Rainbow said that his crocodile totem connected him to Kurtjar country and to the “whole crocodile family”. Rainbow Christie had given him that totem by taking his navel cord and smoking it with ironwood “so I would stay true to the law and so that smoke would form the shape of my totem”. Rainbow Christie told Joey Rainbow that he, his grandmother Biddy and other “old grannies” gave him his albino crocodile totem at Dorunda Lakes. He said that he cannot eat any species of crocodile because of the nature of it being his totem. When Joey Rainbow goes to the river he talks to the crocodiles and believes that they are not a threat to him nor he to them. He said that Dorunda Lakes was a special space for him because of his totem but he could not disclose the story of the saltwater albino crocodile because it was “secret stuff”:
I can just tell you that when I go there… I can talk to it, and know that he can understand me and I can understand him. It’s that connection for me to that – and of that animal to me. We have that special connection and that. And it’s hard to explain. And plus there are things I cannot and will not say about it.
He explained that his grandfather’s barramundi dreaming related to both the saltwater and freshwater fish wherever it was on Kurtjar country. Thus, if a person who had the barramundi as his totem, like his grandfather, caught a barramundi, he or she could not eat it because “that fish is very sacred to him”, but any other Kurtjar person could cook and eat it. Joey Rainbow said, in response to a question about whether there was a comparable place on Kurtjar country where Rainbow Christie’s totem or barramundi dreaming was, like Dorunda Lake for his albino crocodile, that “there’s a lot of stuff I can’t say. All I can say is that is his dreaming”. Joey Rainbow added that for his grandfather “it’s not only his dreaming, that’s his totem… it’s only just related to that fish. He can’t eat him… But it’s just to the fish; can’t eat it and, no, there’s no particular dreaming area. It’s about that fish”.
Joey Rainbow was a director of Morr Morr Pastoral, the owner of Delta Downs station. He was a chairman of both the Kurtjar Land Trust Aboriginal Corporation and of the shareholder of Morr Morr Pastoral’s issued shares, Morr Morr Kurtjar Aboriginal Corporation (KAC). He said that KAC was established “to look after the Kurtjar community”. He explained that, while the use of Kurtjar country to run the business of Morr Morr Pastoral was not traditional, Kurtjar people had the right to do so on their country and that the conduct of such an enterprise was not contrary to their traditional laws and customs. He said:
It's an opportunity there for Kurtijar mob as an employment – like, with the sandalwood, the fishing, even, you know, pig shooting or something, you know? That sort of thing will create employment because not everyone can be employed at one place. You know, you can't have hundred people running round on the station, you know?
If there's a enterprise set up there, we'd have a lot more on country employed doing these things, you know, instead of being in town as a lot in the news say, “You fellas are looking for handouts”, you know, welfare-dependent. We can be getting back and creating our own employment for our own mob. And this is all starting to fall into place now, as we going along.
…
These resources, yes, of course we could use it.
(emphasis added)
He explained that the sandalwood tree is a source of bush medicine, but that Kurtjar traditional laws and customs allow Kurtjar people to “harvest the older trees, not the younger ones… So you’re not getting rid of all your resources”. He said that Morr Morr Pastoral distributed some of its profits to the Kurtjar community and to the Kurtjar Land Trust and that these funds could be used to buy businesses, create employment or take other steps to help the Kurtjar people become self-sufficient using the natural resources of their country. Similarly, he said that it would not contravene their traditional laws and customs if the Kurtjar people set up commercial fisheries to use the abundant fish in the rivers on their country in the same way as Morr Morr Pastoral ran Delta Downs station.
Joey Rainbow said that Kurtjar people can camp, hunt, fish and take things for food or medicine all over Kurtjar country, but cannot be too greedy and must ensure that they both have left some for the next person and “leave the big breeders so that there is always some for next time”. He said that he was taught by the old people that one never took more than enough for oneself and one’s family and one had to share it with the spirits. He said “you never rape your country for everything” and that this rule applied to all resources.
He said that his father (Sandy Rainbow) and grandfather (Rainbow Christie) told him that Kurtjar, including themselves, would trade with the Gkuthaarn and Kukatj at points along the Norman River. He said that they traded sugarbag (which was, as I understood the evidence, honey harvested in a wallaby’s bladder) from the wild native bee. Kurtjar traded the sugarbag for rocks, boomerangs and spears, or gidgi (wattle) gum. He said his father, grandfather, Uncle Kenny Jimmy and Fred Midlan told him that, in the past, there were trading points all along the Gulf coastline where they met people using small canoes from the Northern Territory, Cape York and Mornington Island. He said that Fred Midlan told him the old people had taken him to see such trading. Joey Rainbow said that when he was working in that area, Kowanyama persons told him that the Kurtjar had trading points with the Kowanyama north of the Staaten River at a big waterhole called Gum Hole where they also had corroborees and marriages.
He also said that his father and Sandy Rolly told him that Kurtjar traded with the Tagalaka and Ewamian at places around Red River, the old Miranda Homestead, Bobby Town and Maytown. He said that the Tagalaka had good stone for axes and spears that was lacking on Kurtjar country. He said that his father and grandfather also told him that on Pandanus Creek in the Staaten River National Park, Kurtjar traded with the mob from Chillagoe side (a town to the east).
2.1.4 Other Kurtjar witnesses
Merna Beasley was born in 1951 to a Kurtjar mother, Ethel Hayes (née Gee), the daughter of Alice Gee, and a Tagalaka father. She married Rolly Beasley, Warren Beasley’s brother, in 1972. Her husband worked for the then owner of Magowra (which is not on Kurtjar country) and Miranda Downs stations. Her husband worked as a grader driver and they lived on Miranda Downs, usually near the main homestead but sometimes they stayed at an outstation at Rice Lagoon, which her husband said was on Kurtjar country. She said that her husband used to tell her “about where our old Kurtjar people were on Miranda Downs”. He did not talk about Magowra station because it “wasn’t our country” and he was always much happier to be on Miranda Downs because “[h]e called it his country”. Her mother (a Kurtjar) and mother in law, Daisy Tommy, told her when she was about 18 that the boundaries of Kurtjar country went from Miranda Downs up to Delta Downs.
Their children lived at Normanton but, when they came to visit, Merna and Rolly Beasley took them fishing and hunting to Cobb & Co (near the junction of the Einasleigh and Gilbert Rivers) where there was a little waterhole, Boat Crossing (near Wilson’s Hut), Policeman Waterhole (to the north-west of Wild Rice Lagoon, which is slightly to the west of the eastern boundary of the claim area, north of Wilson’s Hut), Kitty’s Hole (on Walker’s Creek) and old Miranda Downs homestead. When they arrived at those places, Rolly Beasley always got out of the car first and went a little way talking language and calling out to the old people to let them know of the family’s presence. Her husband told her that the country to the west of the junction of the two rivers on Miranda Downs was Kurtjar and that to the east, on Strathmore station, was Tagalaka country. She said that this junction was near to where Tagalaka and Kurtjar met.
Merna Beasley said that when they caught fish and cooked them at the waterholes, before they left, they had to “leave some there for the old people”. She also said that if they had greasy hands they had to rub them with dirt or sand before putting them in the water “for the rainbow serpent” and that “[y]ou always know it’s there if you come from that country”.
Merna Beasley said that when she followed her husband’s grader in their car with fuel for the grader in forested areas on Miranda Downs, he would tell her to keep up with him and not stop or stay too long in those places because of the danger from red leg devils. He told her they could hurt or kill her.
The late Bernie Rapson swore an affidavit on 11 July 2017 that was read at the trial. He was born at the homestead on Miranda Downs station in 1948 and lived in a camp near there until he was about ten. He returned to Miranda Downs in 1962 to work as a stockman on horseback for about eight years. Royal Tommy, Caesar Rolly, Roy, Warren, Phillip and Rolly Beasley, and Nardoo, Don, Noble, Bob and Neville Burns were there and Bernie Rapson spent a lot of time in the bush with them. They told him that Miranda Downs was Kurtjar country. His father, Barney Rapson, whose brother was Royal Tommy, was also working on Miranda Downs but Bernie Rapson did not see much of his father when he worked there.
Bernie Rapson worked a lot at Glencoe but he also had to look after the stock camps at Burke’s Hut (which is to the north of Miranda Downs homestead) and Wilson’s Hut. He said that Royal Tommy and the Beasley and Burns brothers knew a lot about the country around Burke’s Hut and showed him where to catch bream, catfish and turtle in the nearby Maxwell Creek. He said that he spent a fair bit of time with Royal Tommy on Miranda Downs, who showed him “story places”, including bora grounds near Yellow Dinner Camp Lagoon in sand ridge country (about seven to eight kilometres east of Kitty’s Yard), which Royal Tommy warned him not to go to, and another at Wire Yard (which is west of Glencoe) which he was also told was “poison ground”. Royal Tommy told Bernie Rapson that another story place was at Goosey Dam (which is east of Glencoe on Bayswater Creek) where there used to be big corroborees with Kowanyama, Coen, Tagalaka and Kurtjar lawmen.
Royal Tommy also told Bernie Rapson that he had to be careful around waterholes and that he could not go to some places without a lawman to warm him up. The old men also told him that when he went on country he had to sing out to the old people’s spirits to let them know he was coming.
Lance Rapson was born in 1980. His father was Lance Owens, a Tagalaka, and his mother, Tessie Rapson, is Kurtjar and the daughter of Barney and Doris Rapson. Warren Beasley, Barry Casey and Bernie Rapson are uncles of his. He has spent a lot of time with Warren Beasley, who is passing knowledge of Kurtjar laws, customs and places to him so that he will be able to look after Kurtjar country in the future.
He said that Kurtjar neighbours are the Kowanyama to the north of the Staaten River, the “Red River mob” to the east on Strathmore Station, the Ewamian (also to the east), the Tagalaka in the south-east and the Gkuthaarn and Kukatj to the south-west. Lance Rapson said that his mother, her family and his grandmother, Doris Rapson’s first cousins, Barbara and Janet Casey, told him that Kurtjar country went from the Norman to the Staaten Rivers and that Bernie Rapson had told him Miranda Downs was on Kurtjar country. His late uncles, Mervyn and Freddie Edwards, and Warren Beasley had told Lance Rapson that the boundary between Kurtjar and Tagalaka country was “[f]rom the Walker’s past Rocky”.
Lance Rapson said that, if he wanted to hunt or fish on Kurtjar country at a place for the first time, he had to see a senior elder to ascertain whether there were sites or concerns at his proposed destination, such as a bora ground or burial places.
Barbara Casey told Lance Rapson, when he was in his late 20s, that in the old days, her mother’s generation of Kurtjar, Kowanyama, Tagalaka and the Red River mob traded items like boomerangs and spears. He said that there were grinding stones on Delta Downs station that were from a type of rock that did not belong to Kurtjar country. He said that it was important for Kurtjar people to look after and control how much is taken from their country. He explained that, when one went fishing or hunting, one only took what was needed and that it was important to leave some for the spirits. Similarly, he said that if one wanted to take sandalwood, one could take a proportion, but “not too much”, because it is a medicine.
Harold Banjo was born in 1959. He followed his father (also named Harold) who was a Kurtjar by adoption and grew up on Macaroni station. Harold Banjo’s father told him that Kurtjar country goes from the Staaten River down to the Norman River and includes Miranda Downs, Vanrook, Lotus Vale/Stirling, Delta Downs, Dorunda and a small portion of Strathmore stations.
Harold Banjo worked on Miranda Downs for about four years from when he was about 19 years old. He mustered cattle with Charlie and Noel Bumble, Stanley Bynoe, Hector and Frank Casey, Norman, Warren and Neal Beasley, Alec George, as well as Alec and Dudley Sailor.
Kitty’s Hole was a special place for him. That was because, before he was born, his father, mother and Ernest Teddy, his maternal Kurtjar grandfather, who also was working on Miranda Downs, were fishing there, whistling for turtle and then spearing them when their heads appeared above the surface. His father saw a barramundi swim past and speared it behind the gill. When Harold Banjo’s father pulled the fish onto the bank, his grandfather told his parents that the barramundi “is a baby”. He said that this was because no-one ever caught fish at Kitty’s Hold and they only caught turtles. Soon after, his mother fell pregnant and the barramundi became Harold Banjo’s totem.
Jenice Bee was born in 1968. Her parents were Rolly and Merna Beasley, both of whom were Kurtjar. She grew up in Normanton. In her teenage years, when Merna Beasley joined her husband to work on Miranda Downs, Ms Bee and her siblings went to that station every Friday to be with their parents. They went fishing and hunting as a family in the late 1980s and early 1990s at various places on Miranda Downs, but principally in the east of the claim area at Kitty’s Hole, Cobb & Co, H Lagoon, Wilson’s Hut and Boat Crossing. Her parents told her that Miranda Downs was Kurtjar country. They hunted goanna and foraged for bush tucker such as water lily and bush fruit. Ms Bee said that, although her father was born at Myra Vale, “Miranda was his country. He had been taught by the old people for that country. It was where his heart was”. She said that her father was a quiet person when he was not on Miranda Downs, but when there “he would be talking all the time. He said it was because he was home”. She said that he told them where three young Kurtjar people were buried on the way to Kitty’s Hole.
Ms Bee said that whenever he arrived at places with his wife, children and grandchildren to fish and hunt, Rolly Beasley always got out of the car before anyone else and walked off “talking language”. He then returned to the car and reminded the family that they had to “look after, tidy your land up, leave some fish there beside the fire there for them old people”. He told her that he was speaking language to the old people. Ms Bee still speaks to the old people when she visits places on country, but in English as she does not speak Kurtjar. She does this to show respect for the spirits and because, if she did not, the next time she visited she would not be able to get anything. She also always leaves some food behind for the old people when she leaves. She teaches her children those customs.
Rolly Beasley told Ms Bee that Fred’s Waterhole was a special place for him. She said that after visiting her parents at Miranda Downs for years, one day her father told her and her husband “I found it” and took them to Fred’s Waterhole. She said that when they arrived, he walked off and that she had never seen him as emotional as then. He told Ms Bee and her husband that when he was young he met up all the time there with Halo and Comet Ward and Stewart Nimble. Rolly Beasley said to his daughter that those three men and Royal Tommy had told him that Miranda Downs was Kurtjar country and that, when he was young, “all of these old people taught me [Rolly Beasley] what I know today” when they met up at Fred’s Waterhole.
Jenice Bee had been told that red legged devils were on Miranda Downs and Delta Downs. She said that they were in forested areas on Miranda Downs and that “[s]oon as you go in that country, you can just feel it… It’s no good place”. She had been told not to go in there and believed that she had to respect that prohibition. She learnt of the chacharr when she was about five, when she went fishing with her father’s parents. They told her that, before she put her hands into the waterhole or Willis Creek, she had to wash them with mud or sand.
Mildred Burns was born in 1956. Her mother, Betty Harold (née Bynoe), was the daughter of Bynoe B and Sarah Bynoe, all of whom were Kurtjar. Ms Burns married Claude Burns who is also Kurtjar. His parents were Sandy Rainbow and Vera Midlan, the daughter of Jimmy and Judy Midlan. Ms Burns grew up at the top camp in the Normanton reserve because, like her father, her paternal grandparents, with whom she lived, were Gkuthaarn.
In her childhood, she spent a lot of time at the bottom camp around Jubilee and Lily Slattery’s home. She said that corroborees were held around that home frequently and there was always singing and playing the drum. She said that Warren Beasley and Fred Midlan both sang in Kurtjar at the corroborees. She said that the songs always had a meaning and a dance often accompanied the songs which could be about animals, like wallabies, or different birds. The old people explained what the songs and dances were about and Jubilee Slattery also joined in the corroborees.
In 1978, Ms Burns and her husband went to Miranda Downs where he worked as a ringer and she as a housemaid. They lived at an outstation at Glencoe at the same time as Royal Tommy, Fred Midlan and Roy Beasley (Warren Beasley’s brother) and their wives were there. She said that the men were very knowledgeable about the country on Miranda Downs and spoke about it among themselves. She said that the men spoke to the spirits of the old people and knew all the places to go. She, with the other women, accompanied the men to get bush tucker at water bodies down the Gilbert River such as Two Mile and Four Mile Waterhole, Bayswater Creek, Picnic Waterhole (near Glencoe), Goosey Dam, Toby’s Waterhole (which is near Mail Change Waterhole), Jam Pot Waterhole (which is about half way between the western and eastern boundaries of Miranda Downs) and, further to the east of Glencoe, Kitty’s Hole. When they went there they always sang out to the spirits and talked in language saying who they were, who they were with, that they were family and what they wanted to eat. She said that if they caught something, their custom was to cook it and leave some for the old people to show respect. If they did not leave something, “you won’t have luck the next time”.
Importantly, s 223 defines native title and native title rights and interests as rights and interests possessed under traditional laws acknowledged and traditional customs observed by, relevantly, a claim group, that has connection to the land and waters by those laws and customs and the rights and interests are recognised by the common law of Australia. A determination of native title must determine “the nature and extent of the native title rights and interests in relation to the determination area” (s 225(b)). And, s 238(3) provides that, where the non-extinguishment principle applies to an act affecting native title (as defined in s 226) and “if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act”.
5.2 The evidence
I have set out above instances of the lay witnesses’ evidence of their concept of their rights to take resources, hunt and fish on Kurtjar country (see e.g [28], [73]–[75], (as to totems) [76]–[78] (as to Morr Morr), [79], [80] (trade), [106] (Fred Edwards lived off the land), [35], [52], [83], [91], [96], [101], [110], [115], [133] (taking resources)).
As Fred Pascoe believed, under Kurtjar law, he had the right to the resources of his country without limitation ([35]). The late Fred Edwards and Warren Beasley expressed a similar belief ([131] and [106]). Mr Pascoe gave evidence that, at one stage, the State had contracted with a non-indigenous person to take sandalwood from Kurtjar country. He said that the Kurtjar people had told that person that this activity was not permissible because:
… only Kurtijar people can take that resource. Currently we’ve got a Kurtijar man cutting that. He’s paying a royalty to the tribal association so that the mob are getting something out of that.
(emphasis added)
Mr Pascoe said that the payment to the community (which I infer was to KAC) was in line with Kurtjar law, as was the conduct of Morr Morr Pastoral in grazing cattle, as an introduced species, on Delta Downs, within Kurtjar country. He said that the Kurtjar people manage and run Morr Morr Pastoral “in a way that it doesn’t harm our country” and that this, too, was in accordance with Kurtjar law. The State did not cross-examine Fred Pascoe on that evidence, which is consistent with Joey Rainbow’s evidence that I summarised at [74]–[76] above.
In addition, Fred Pascoe and Joey Rainbow gave evidence about the Kurtjar trading with other groups in the past. Fred Pascoe testified that, from time to time, he had come across stone axes on Delta Downs and asked elders like Fred Midlan, Sandy Rainbow or Paul Casey about them. They told him that the axes originated from either Croydon (i.e. the area to the east and south‑east of Miranda Downs (see too [91] above)) or “up on the Cape” (i.e. well north of the Staaten River) and that “our people used to trade with other people for them because the rock in our country isn’t good for stone axes and stone knives”. He said that Fred Midlan had told him that the Kurtjar had local trading routes, first, with the Tagalaka (to the east or south-east of Miranda Downs) or the Ewanian (who were further to the east on the Gilbert River in the area around Georgetown), secondly, with groups from Cape York, through Normanton, across the Flinders Ranges and down to the channel country and, thirdly, that went west to the Northern Territory. He said that the Kurtjar had a spear tree, called laabh, which they used for trade. He said:
There was trade going on between neighbours. You know, I’m not the most learned man about it but obviously there was a commercial aspect to society as … my ancestors knew at that time. I’ve been told stories that we used to trade with our neighbours to the east that had rock and stone in their country, and we didn’t, and … we had resources that they didn’t have
(emphasis added)
Similarly, Joey Rainbow said that his father, Sandy Rainbow, and Sandy Rolly had told him of trading routes to on the eastern side of Kurtjar country with the Tagalaka and Ewanian. He said the old people had told him of Kurtjar trading with Gkuthaarn and Kukatj at points along the Norman River, particularly sugarbag. He said that Kenny Jimmy, Fred Midlan, Rainbow Christie and his father had told him of trading points along the coastline with people from the Northern Territory, Cape York and Mornington Island. Joey Rainbow said his father and grandfather had told him of trading routes where Kurtjar once traded “with the mob from Chillagoe side” (Chillagoe is well to the east of the Staaten River National Park towards Cairns) near Pandanus Creek (in the area of the Staaten River National Park). He said that there are shell middens and camp sites on both sides of the creek in this area. He added that Kowanyama people had told him, when he worked in that area, that Kowanyama had trading points north of the Staaten River, one being a big waterhole called Gum Hole. They could wade across the Staaten River there because it was usually only knee deep and the groups would meet there for marriage and corroborees. Joey Rainbow also said that the Tagalaka had good stone for spears and axes, unlike what was available on Kurtjar country.
5.3 The anthropological evidence
Dr Martin recognised that, in hunter-gatherer societies, trade had an important social role and that the Kurtjar’s traditional laws and customs would constrain the way in which they could access resources. In his first report, Dr Martin gave examples of sites which the Kurtjar regard as places where certain activities cannot occur, such as those associated with:
·the chacharr or rainbow serpent dreaming. That was because interfering with the natural flow or retention of water, such as by building a dam, would cause the chacharr to leave that area and, as a consequence, deprive the locals of water. Dr Martin recorded Irene Pascoe’s statement about her grandfather, Bumble B, warning the station manager of Myra Vale not to create a dam near the homestead lest that drove away the chacharr who lived in the waterhole there called Wuntharnku;
·goanna or red goanna dreaming. For example at Milrrardik, near Fitzmaurice Creek on Delta Downs, Warren Beasley told Dr Martin that, while goanna were plentiful there, “we can’t kill him… elsewhere we can kill em from that way, but we can’t get em from here. Storyplace”;
·burial sites and other significant places. These included Mberrilk, near the Lotus Vale homestead which Warren Beasley told Dr Martin was “dreaming belong to brown snakes, big brown” and that the Kurtjar believed that any interference with that site would cause an increase in the numbers of that dangerous reptile in the landscape;
Dr Martin said that the exercise of the right to take resources:
… intersects with Kurtjar laws and customs in complex ways, including knowledge and practices about the Dreaming, and the presence of spirits in the claim area. On one occasion, Warren Beasley explained that bush foods were themselves essentially part of the Dreaming. While identifying fruit on a Fig tree, Warren Beasley explained:
[That is the] Dreaming belong to it, that fruit there: Dreaming belong to it. That’s the Dreaming of the tree, this stuff here, that fruit… Say we walk up to this tree here, we hit him, kotikot, tommyhawk, stone axe, pick up a piece of stone and you go and hit that tree. Hit him and you talk, ngaay bhamp, that’s language belong to us, that’s me! Luwan naaning, I’m talking to the tree, this your fruit, maay naaning ntoong. In a whiteman way, I’m saying, that’s good fruit… it’s got nothing to do with that tree itself.
(emphasis added)
In his third report, written after the on country evidence, Dr Palmer opined that the Kurtjar people’s right to use the resources of the countryside was not unconstrained. Rather he thought that, based on the evidence of Joey Rainbow and Fred Pascoe, the exploitation of resources for exchange and other purposes had to be sustainable and not in any way “greedy”, in the sense that only what was “sufficient for the purpose could be taken, but no more”. He also referred to the constraints on taking or using resources from particular sites, such as sacred sites or ones that are associated with dreamings, like the dingo or warrgi dreaming site on Delta Downs (see [58] above). He considered that this represented normative customary law or tradition that was likely to have been in place since before sovereignty.
Dr Palmer also opined in the same report that the exercise of a right to property of a person’s country in customary dealing was subject to the constraints of the hunter-gatherer society’s economic system. He reasoned that, from an anthropological perspective, such societies had economies in which exchanges were better characterised as “gifts” that, first, necessarily incurred an obligation on the recipient to reciprocate and, secondly, facilitated or encouraged the development or maintenance of relationships between the givers and recipients. He observed that the material aspect of the “gift” transaction, namely, items exchanged, while potentially important for one or both sides from an economic perspective, was a means to an end of ensuring that neighbouring groups remained on good terms. He said that, according to the academic literature, this conduct was calculated to lead to additional benefits, such as shared ritual activities and the exchange of women for wives.
The State relied particularly on what Dr Palmer wrote in par 56 of his third report, which he emphasised in his oral evidence on this issue. He wrote:
This understanding of the anthropology of the manner whereby rights to country were exercised in exchange transactions raises the question as to whether the right to the resources of an individual’s country in customary arrangements was constrained by the manner whereby those rights could be exercised. That is to say, was the right constrained not only by the normative values of avoiding ‘greed’ and maintaining sustainable procurement, but also by the restrictions imposed by the economic arrangements of a hunting and gathering society? Exchange transactions lack any of the characteristics of ‘the economic flow in modern industrial economic communities’ (pursuit of capital, generation of surplus, anonymity of trade). Consequently, according to anthropological understandings the right and its exercise are not differentiatable. The essence of the right is found in its exercise and the normative rules and practice that determine how this might be effected.
(emphasis added)
Dr Palmer considered that such “exchange transactions” were not of a trading nature or undertaken to generate an independent surplus or the equivalent of the creation of capital or money. In his opinion, the Kurtjar people’s historical activity when interacting with distinct neighbouring groups was likely to have been in the nature of such exchange transactions as distinct from economic trading. He said that such a characterisation of exchanges raised the question of whether the right to resources in the individual’s country was constrained not only by the normative traditional values of avoiding greed and maintaining sustainable procurement, but also by restrictions imposed by the economic arrangement of a hunter-gatherer society.
During their concurrent evidence, both experts on this issue agreed that the Kurtjar had the right to take resources from their country, but that their traditional laws and customs regulated the exercise of that right so that they must use it as individuals or a group in a way that is sustainable and not “greedy” and, where the use extends beyond the needs of the individual and his or her family or others, it is for the benefit of the Kurtjar people as a community.
Both experts agreed that the conduct of Morr Morr Pastoral’s business on a commercial scale for the benefit of the Kurtjar people, including making profits so that its future economic operation would be secure, was consistent with their traditional laws and customs dating from before sovereignty. As Dr Palmer said, “the use of a resource in a modern sense for the benefit of the group would appear to me to be reflective of a traditional practice”. This concept flowed from what Dr Palmer had said about a group’s use of some of a resource for purposes other than its own consumption in what he described as exchange transactions. That use occurred when a local group took more of a resource than it needed for itself, for its own consumption or activity, in order to “gift” or provide it to a neighbouring group with the objective of deriving a benefit for the giving group, such as through developing or maintaining a relationship. In this concept, each side in the exchange gives something that the other may not have but will find beneficial.
Both experts agreed that it would be in accordance with traditional normative laws and customs for the Kurtjar people to take resources and exploit them for the benefit of their community subject to the activity not being greedy and being carried out in a sustainable way. They agreed that this occurred in the cases of the conduct of the commercial enterprises of Morr Morr Pastoral and the Kurtjar person who harvests sandalwood under conditions that benefit the Kurtjar community.
I am satisfied that, based on the lay and expert evidence, the Kurtjar people have the non‑exclusive right to take resources from the claim area and have had that right under their traditional laws and customs since before sovereignty.
5.4 The State’s submissions
The State argued that a native title right was distinguishable from its exercise. Indeed, it accepted that it is not necessary for there to be evidence of the exercise of the right before a court can find it to exist, having regard to Western Australia v Willis (2015) 239 FCR 175 at 187–188 [36]–[37], 190 [44] per Dowsett J, 215–216 [99]–[100] per Jagot J (with whom Dowsett J agreed on this issue at 187 [36]). The State noted that Barker J took a more cautious approach at 229–230 [169]–[170]. The State contended that it is necessary to have regard to evidence as to customary constraints on the exercise of a right in approaching how to express the right in common law terms in a determination under s 225 of the Act. It submitted that this was ultimately a question of fact, which was not exclusively anthropological.
The State argued that the lay evidence about the nature of the right to take resources needed to be assessed having regard to the spiritual aspect of the Kurtjar people’s relationship to the resources, the evidence about trade with others and customary restraints. It contended that, when a Kurtjar person took food by hunting or fishing, they had to pay respect to the spirits in the area and to cook and leave some for the old people there. It submitted that the evidence in respect of historical trade consisted of exchanges with neighbouring groups of items or resources that the other did not have. The State argued that when they took resources, such as by hunting or fishing, the Kurtjar respected customary constraints that prohibited them from being greedy, required them to share what was taken with others, especially elders, and to leave some for the ancestors or spirits of the old people.
The State contended that Dr Martin’s evidence was that traditional custom did not allow resources to be exploited for personal financial gain. In addition, relying on Dr Palmer it submitted that:
Dr Palmer considers that the "essence" of the right to take natural resources "is found in its exercise and the normative rules and practices that determine how this might be effected." That is because, according to anthropological understanding, a right and its exercise are not differentiable. Thus, as Dr Palmer explained during the hearing:
... the nature of the right, the extent of the right is bound by the context of the economy and the environment - the whole universe of meaning - in which the right was embodied
The State argued that Dr Palmer had said that the commercial exploitation of sandalwood and the activities of Morr Morr Pastoral were “outside of traditional practice”, but that the exploitation of resources for the benefit of the Kurtjar people was “concordant with customary law and practice”.
The State contended that the Kurtjar needed to establish that their traditional laws and customs would have permitted them to act in the way claimed if, at the relevant time, the question had arisen of them taking natural resources for a commercial purpose, or, indeed, “for any purposes” as claimed in their expression of the right to take resources (based on Willis 239 FCR at 188 [37]). It submitted that this question would have been answered in the negative because, based on Dr Palmer’s evidence:
(a)the “essence” of the right to take resources was constrained under traditional law and custom by the proscription against being greedy, or taking more than required for personal, domestic or commercial purposes and that communal purposes “include exploiting resources for the benefit of the community but not for the accumulation of capital”; and
(b)the expert evidence supported the conclusion that the right to take resources “did not comprehend the exploitation of resources for the purposes of generating an independent surplus or capital” or “having something in the piggy bank… for a rainy day”.
The State argued that the expression in a determination under s 225(b) of the Act of the right to take resources should not include either “for any purpose” or “and use”. That was because, it contended, the evidence supported only a right “to take resources for domestic or communal purposes”. It submitted that the words “and use” were redundant and not reflective of a “right” within the meaning of s 223 of the Act because, after it is taken, what was to be used would become a chattel severed from the land and waters whence it had originated.
5.5 Consideration
In Akiba v The Commonwealth (2013) 250 CLR 209, the issue was whether the primary judge, Finn J, had correctly included in a determination of non-exclusive native title rights and interests made under s 225 of the Act a native title right expressed as “the right to access and to take for any purpose resources in the native title areas”.
French CJ and Crennan J observed that this framing of the right permitted it to be exercised in accordance with the native title holders’ traditional laws and customs in a variety of ways that included, relevantly, by taking fish for commercial or trading purposes (at 217 [1]). Their Honours explained that the appeal turned on the characterisation of the taking of fish or other aquatic resources under the right, as found by Finn J, as either a distinct or separate right under the traditional laws and customs of the native title holders to take fish and aquatic life for trade or sale, or, alternatively (and as the High Court unanimously found), “no more than a particular mode of enjoyment of the right ‘to take for any purpose resources in the native title areas’” (at 217 [5], 224 [20]). French CJ and Crennan J concluded that (at 224–225 [21]):
A broadly defined native title right such as the right “to take for any purpose resources in the native title areas” may be exercised for commercial or non-commercial purposes. The purposes may be well defined or diffuse. One use may advance more than one purpose. But none of those propositions requires a sectioning of the native title right into lesser rights or “incidents” defined by the various purposes for which it might be exercised. The lesser rights would be as numerous as the purposes that could be imagined. A native title right or interest defines a relationship between the native title holders and the land or waters to which the right or interest relates. The right is one thing; the exercise of it for a particular purpose is another. That proposition does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose (An analogous right at common law is the easement: see Gray, Elements of Land Law (1987), pp 633-634). That is not this case. The right defined by Order 5(b) of the Determination, which, save for the extinguishment question, was not in dispute, was a right “to take for any purpose resources in the native title areas”.
(emphasis added)
Their Honours held that “[r]ecognition of the distinction between a broadly stated right and its exercise in particular ways or for particular purposes is implicit in the legislative scheme of the NT Act dealing with extinguishment” (at 226 [25]). They held that s 211 made explicit the distinction between native title rights and their exercise (at 228 [28]).
Hayne, Kiefel and Bell JJ held (at 241–242 [66]–[67]):
The relevant native title right that was found to exist was a right to access and to take resources from the identified waters for any purpose. It was wrong to single out taking those resources for sale or trade as an “incident” of the right that had been identified. The purpose which the holder of that right may have had for exercising the right on a particular occasion was not an incident of the right; it was simply a circumstance attending its exercise.
Focusing upon the activity described as “taking fish and other aquatic life for sale or trade”, rather than focusing upon the relevant native title right, was apt to, and in this case did, lead to error. That shift of focus, from right to activity, led to error in this case by inferentially reframing the question determinative of extinguishment as being whether the statutory prohibition against fishing for a particular purpose without a licence was inconsistent with the continued existence of a native title right to fish for that purpose. But the relevant native title right that was found in this case was a right to take resources for any purpose. No distinct or separate native title right to take fish for sale or trade was found. The prohibition of taking fish for sale or trade without a licence regulated the exercise of the native title right by prohibiting its exercise for some, but not all, purposes without a licence. It did not extinguish the right to any extent.
(italic emphasis in original; bold emphasis added)
They concluded (at 244 [75]):
As the plurality in Yanner held [(1999) 201 CLR 351 at 373 [38]], “saying to a group of Aboriginal peoples, ‘You may not hunt or fish without a permit’, does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing” (emphasis added). Likewise, telling the native title holders in this case, “You may not fish for the purpose of sale or trade without a licence”, did not, and does not, sever their connection with the waters concerned and it did not, and does not, deny the continued exercise of the rights and interests possessed by them under the traditional laws acknowledged, and traditional customs observed, by them.
(italic emphasis in original)
In Akiba 250 CLR 209, the Court was dealing with the issue of whether legislative restrictions on fishing extinguished the native title right to fish or merely affected its exercise. Here, the issue is how the right that the society occupying the claim area held before sovereignty ought be expressed in terms of the common law in a determination under s 225(b). Before sovereignty, no-one in the then society understood or considered in economic terms concepts of commercial purposes or, as the State would have it, accumulation of capital. They understood that the humans comprising that society and the spirits of their ancestors exercised dominion over their land and waters and the natural resources to the exclusion of all strangers, but that their traditional laws and customs regulated the occasion and manner in which at particular locations or in particular ways, individuals or the group could exercise or enjoy those resources. The concept of the right to resources and the dominion over them is embodied in Fred Pascoe’s conception: “that’s my resources. That’s my country”.
The regulation of the exercise and enjoyment of that right, however, now occurs both under the traditional laws and customs of the Kurtjar people, as adapted to the modern day, and the laws of the Commonwealth and the State. But the regulation of its exercise and enjoyment does not affect the nature or existence of the right itself. This conceptual analysis is also consistent with the analysis which Dowsett J and Jagot J followed in Willis 239 FCR at 187–188 [36]–[37], 190 [44] and 215–216 [99]–[100]. They held that the mere fact that a right had not been exercised previously in a particular way did not entail that the right itself did not include the actual capacity to do so in that way.
Here, the lay and expert evidence established that the overarching society to which the Kurtjar belonged at sovereignty, entered into exchange transactions using resources of the claim area that they did not need for their immediate individual, family or communal purposes. The purposes of the exchange transactions were, first, to support a relationship with the other group and, secondly, for each group to both provide and obtain something useful or beneficial that one had and the other either did not have or needed. However, at its heart, the right that the society had was that it or its members could take the resources of the claim area for any purpose, but the traditional laws and customs might regulate the exercise and enjoyment of that right at particular times or locales or in particular respects. The plenary expression of the right itself would not mean that, for example, its members could take a resource such as goannas from a goanna dreaming or sacred area. Nor could an individual fish or hunt for his or her totem, even though others in the society could do so. That is because the traditional laws and customs can regulate the exercise and enjoyment of the native title holders’ plenary right to take the resources in particular circumstances, because of factors such as the spirituality of the place or the individual having the resource in question as a totem.
The anthropological categorisation of an activity as an exchange transaction, rather than trade or commerce, involves a method of scholarly analysis of a society and its relationships. An economist would have a different analytical approach and is unlikely to adopt a congruent characterisation of the exchange transaction with that of the anthropologist. A lawyer may apply another analytical perspective, concentrating on the ability of each side to pass a good title to the other for the items of property that are changing hands in the exchange transaction or trade.
Here, s 225(b) of the Act requires a determination of native title to express, in the language of the common law, each right possessed by the native title holders that is comprised in the native title, being the product of a system of law and custom unlike the common law, but nonetheless regulating a society’s relationship between its members, the spirits of their ancestors, the natural world, its resources and the locale in which they exist.
In my opinion, Dr Palmer’s or a more general anthropological categorisation of the activity of taking resources and subsequently applying them, while informative, cannot be determinative of the legal characterisation of a native title right, in the language of the common law: Yorta Yorta 214 CLR at 455 [85]. Dr Palmer explained in the concurrent evidence why he had written, in par 56 of his third report, that “according to anthropological understandings the right and its exercise are not differentiable”. He recognised that, for the lawyer as opposed to the anthropologist, a right is distinct from its exercise, which is why the State’s adoption of his analysis is misconceived. His analysis focuses on the exercise, being the activity, and its regulation under the traditional laws and customs of the society, as opposed to the right that the native title holders possess. Their laws and customs regulate and control how, where and when and for what purpose particular resources could be used. But the fact that the society had such laws and customs is itself both a recognition and a manifestation that the society had control or dominion over the resource and all activities and locations within the claim area affecting it. The Act makes clear in ss 211 and 227 that there is a distinction between a native title right and its enjoyment or exercise. The High Court has emphasised that ss 223 and 225 are concerned with the native title rights and interests that the native title holders possess, not their exercise: Yorta Yorta 214 CLR at 455 [85]; Akiba 250 CLR at 224–225 [21], 226 [25], 241–242 [66]–[67], 244 [75].
I reject the State’s argument that the determination under s 225 should express the right to take resources with a limitation “for domestic or communal purposes”. I am of opinion that the traditional laws and customs that regulate the right are distinct from the right itself. In particular, s 223(1)(a) defines native title rights and interests as being the rights and interests “possessed under the traditional laws… and… customs” of the native title holders. And, ss 94A and 225(b) of the Act require that an order making a determination of native title determine “the nature and extent of the native title rights and interests in relation to the determination area” as opposed to setting out the whole of the traditional laws and customs that regulate the exercise and enjoyment of those rights and interests.
The task of the Court in making a determination in accordance with s 225(b) requires the translation of findings of fact about the nature of a right that exists into a statement of a common law right in rem. Thus, s 223(2) defines “rights and interests” as including “hunting, gathering, or fishing, rights and interests”. In addition, s 211 deals with the exercise or enjoyment of classes of activity (as defined in s 211(3)) comprised in native title rights and interests, including hunting, fishing and gathering (as well as a cultural or spiritual activity or an activity prescribed by statutory regulation) that native title holders may engage in, despite (with limited exceptions) any law of the Commonwealth, a State or Territory, if they do so in exercise or enjoyment of their native title rights or interests “for the purpose of satisfying their personal, domestic or non-commercial communal needs”. As Akiba 250 CLR 209 held, the structure of the Act suggests that purposes for which a right may or may not be exercised are distinct from the right itself.
In one sense, a common law right, such as the “right against self-incrimination”, can be described simply in those terms or with the qualification “except as provided by statute” or by describing the circumstances in every Act that abrogates the right and regulates when and how any answers, information or documents obtained may later be used. But, the statutory qualifications are derogations from the right that is being described that presuppose its existence and then operate on it. Indeed, there are no rights under the statutory and common law that are absolute. Even the biblical normative statement against killing another person, “thou shalt not kill”, which can be stated as a positive right not to be killed, is subject to the qualification that self-defence is an answer to a charge of murder or unlawful killing. The common law right to freedom of speech and opinion is not unqualified in its operation. The statutory and common law of defamation regulate its exercise and enjoyment in myriad ways. A driver’s license gives its holder the right to drive a vehicle but a plethora of laws and regulations govern the way in which the right can be exercised and enjoyed. Likewise, Hayne, Kiefel and Bell JJ said in Akiba 250 CLR at 244 [75]:
The repeated statutory injunction, “no commercial fishing without a license”, was not, and is not, inconsistent with the continued existence of the relevant native title rights and interests.
So too, s 225 of the Act does not require the Court to embark on a detailed description of the way in which the native title holders’ traditional laws and customs regulate or affect the exercise and enjoyment of the rights and interests that they possess, as Dr Palmer thought an anthropologist might.
In my opinion, it is not the purpose of s 225(b) for the Court to set out, in effect, the whole of the constraints or limitations on the circumstances governing the exercise or enjoyment of a native title right or interest, recognised by the common law, that may be placed on it by traditional laws and customs. For example, there will necessarily be areas on land or waters where the laws and customs of the native title holders prevent them either from being present or from undertaking particular activities. But, it would not be appropriate, or indeed practicable, to list all of those places and normative constraints in trying to define what would otherwise be a right, for example, to camp, conduct ceremonies, burials, hunt or take resources. The dingo dreaming and the goanna increase sites were two of the examples in the evidence of places where the Kurtjar people could not exercise or enjoy the right to hunt particular animals. A determination of native title rights and interests under s 225(b) in the land and waters is not required, and could not be expected, to define the meets and bounds of those special places or specify the limitations on activities that can occur there, under the traditional laws and customs that apply so as to regulate or constrain what would otherwise be the exercise or enjoyment of the general right. One has to leave that level of regulation of the exercise or enjoyment of the right to the operation of the traditional laws and customs which the native title holders continue to acknowledge and observe.
In particular, Dr Palmer acknowledged that the exploitation of resources on a commercial scale through Morr Morr Pastoral’s operation of Delta Downs station for the benefit of the Kurtjar people, including its making profits so that its future economic operation would be secure, was “reflective of a traditional practice”. The making of profits so as to have accumulated capital available to reinvest or distribute is part of the ordinary operation of a commercial enterprise. It is difficult to see how the State’s asserted basis for its words of qualification, namely to proscribe “the purposes of accumulating capital”, would work with such an enterprise. Nor should this assertion be allowed to influence the articulation of the right to take resources that the Kurtjar people possess under their traditional laws and customs. The traditional laws and customs will adequately govern the exercise and enjoyment of the rights because those laws and customs will constrain Kurtjar individuals from being greedy or not sharing with family or elders and the Kurtjar people from acting otherwise than for the benefit of the community.
Moreover, the operation of Morr Morr Pastoral and the permission for a Kurtjar individual to take sandalwood, as commercial operations for the benefit of the Kurtjar people, represent changes to, or adaptations of, their traditional laws and customs that remain rooted in the pre-sovereignty system but accommodate the fact that the Kurtjar people are living in the twenty-first century and can exploit the resources of their country under those laws and customs for the communal benefit, including by providing them with employment through such commercial activities: Yorta Yorta 214 CLR at 443–445 [42]–[47], 447 [56], 455 [82]–[84] and esp 456–457 [89]; see [146]–[150] above.
As Gleeson, Gummow and Hayne JJ said in Yorta Yorta 214 CLR at 455 [84], for the purposes of s 223(1), the:
statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.
(emphasis added)
The State’s suggested qualification is directed at the exercise, not existence of the right to take resources. I reject it for the reasons above.
The State’s argument about the inclusion of the word “use” in the determination of the right has more substance, but not as an aid to imposing any restriction on the plenary expression of the right in a determination under s 225.
In my opinion, rather than expanding on instances of the taking of resources in expressing the right, I am of opinion that a description of the right to take resources that employs the same terminology as in Akiba 250 CLR 209, namely “the right to access and to take for any purpose resources in the [determination area]” is the appropriate expression of the Kurtjar people’s native title right here: see too Rrumburriya Borroloola Claim Group v Northern Territory (2016) 255 FCR 228 at 252 [366] per Mansfield J. It has the advantage of being an expression construed by the High Court and one that reflects, as so construed, my findings of the plenary expression of the right based on the lay and expert evidence. However, since neither the Kurtjar nor the State addressed on this expression of the right, and it will be necessary for the parties to prepare final orders to give effect to these reasons, they will have a further opportunity to argue whether the final determination should contain it if they consider it not to be preferable to the expression of the right sought in cl (b)(ii) of Sch E of the Form 1 application.
6 CONCLUSION
For these reasons, I have concluded that:
(1)the Kurtjar people have, by transmission, non-exclusive native title rights and interests over the whole claim area, including Miranda Downs;
(2)the apical ancestors of the Kurtjar people should include Gilbert, Alice Reid (also known as Alice Gee and Alice McGilvray), Iffley Tommy senior, Paddy Macaroni and Macaroni Tommy;
(3)subject to hearing from the parties, the Kurtjar people have the non-exclusive right to access and take for any purpose resources in the claim area.
The parties will need to prepare a draft determination of native title to give effect to the issues that I have decided and those on which they agreed and to deal with any outstanding questions.
I certify that the preceding three hundred and twenty-nine (329) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 15 October 2021
SCHEDULE OF PARTIES
QUD 483 of 2015 Respondents
Second Respondent:
CARPENTARIA SHIRE COUNCIL
Third Respondent:
CROYDON SHIRE COUNCIL
Fourth Respondent:
MAREEBA SHIRE COUNCIL
Fifth Respondent:
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
Sixth Respondent:
DORUNDA STATION PTY LTD (ACN 111 342 468)
Eighth Respondent:
STIRLING LOTUS VALE STATION PTY LTD (ACN 164 248 597)
Ninth Respondent:
VANROOK STATION PTY LTD ACN 128 492 679 ATF THE VANROOK TRUST ABN 88 585 397 383
Tenth Respondent:
HUGHES HOLDINGS AND INVESTMENTS NO. 700 PTY LTD
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