FEDERAL COURT OF AUSTRALIA

Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no order as costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no order as costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This judgment concerns two appeals, one by the Bidjara people and the other by the Brown River people, to set aside the determination made by the primary judge under the Native Title Act 1993 (Cth) (NTA) that native title does not exist in the claim area.

2    The claim area, which may more conveniently be called the overlap area, includes the Carnarvon National Park and the Carnarvon Gorge in central Queensland, some 600kms north-west of Brisbane. The towns of Injune and Rolleston are nearby. The larger town of Roma and the coastal town of Gladstone are, respectively, to the south and east.

3    At trial, the primary judge had before her three claimant applications for determination of native title in respect of the overlap area. The first (QUD23/2006) was made by the Karingbal people, having been filed in January 2006, and was largely limited to the overlap area. The second (QUD216/2008) was that of the Bidjara people, lodged in July 2008, which related to a large area of land including the overlap area. The third (QUD245/2011) was that of the Brown River people, lodged in August 2011, which, like the Karingbal people’s claim, largely coincided with the overlap area. The Karingbal people filed a further application (QUD310/2012) in June 2012, as did the Brown River people (QUD245/2011), to correct the omission of particular areas from their initial applications.

4    The Brown River claimants had, up until the time they lodged their claimant application in 2011, been members of the Karingbal claim group. However, following consideration of anthropological advice, which indicated that those members of the Karingbal claim group who were descended from claimed apical ancestor Jemima of Albinia, were not, for NTA purposes, Karingbal people, they filed their own claimant application. To that end, and to distinguish themselves from the members of the Karingbal claim group, they used the group name “Brown River people”, the Brown River running through the overlap area. We note that in the primary judge’s reasons and these reasons they are sometimes referred to as the Karingbal or Brown River/Karingbal people.

5    In July 2010, prior to the lodgement of the Brown River people’s claim, the docket judge directed that the Bidjara and Karingbal claims were to be programmed for trial on a date to be fixed in 2011. In August 2010, 10 October 2011 was set as the trial date in relation to the overlap area.

6    In June and July 2011, however, further programming orders were made which ultimately saw the October 2011 hearing date vacated.

7    In August 2011, the Brown River people’s claim was lodged, as noted above, largely in respect of the overlap area.

8    In September 2011, a trial date of 27 August 2012 was fixed for the hearing of the two initial claims and soon after, orders were made joining the Brown River people as respondents to those proceedings. A trial date of 27 August 2012 was then confirmed for the hearing of the three claims, brought forward to 6 August 2012 in December 2011.

9    In July 2012, however, following the filing of further Karingbal and Brown River people claimant applications, the August 2012 trial date was vacated, although soon afterwards programming orders were made for the trial to commence on 4 March 2013, on country, that is to say, within the overlap area.

10    In October 2012, that trial date also had to be vacated because of concerns raised by the Court about the practicability of commencing an on country trial in March, having regard to likely wet weather conditions.

11    In February 2013, the primary judge assumed judicial case management of the proceeding and in March made orders in relation to the trial, which was then programmed to commence with an opening in Brisbane on 22 April 2013, and the evidence of indigenous witnesses to be taken on country thereafter, in the week commencing 29 April 2013.

12    On 22 April 2013 the trial commenced before the primary judge in Brisbane. An application was then made on behalf of the Bidjara people, by Mr Robert Raymond Robinson, one of the claimants and their lay advocate, for the trial to be adjourned on the basis that the lawyer previously instructed to act for them had just ceased to act. After hearing submissions her Honour declined to adjourn the trial.

13    The trial then proceeded in Brisbane on 23 and 24 April 2013. On 29 April 2013, the parties attended at Carnarvon Gorge for the taking of on country evidence in accordance with the programming orders. However, immediately prior to this happening, the Court was advised that Raymond Robinson had been taken ill. As a result, on 29 April 2013, at Carnarvon Gorge, her Honour decided not to take any evidence on country and adjourned the hearing until 6 May 2013 in Brisbane. The opportunity was taken, however, for the Court to view sites in the vicinity of the Carnarvon Gorge before adjourning to Brisbane.

14    The trial then resumed in Brisbane on 6-10 and 13-16 May 2013, and then again on 28-29 August 2013, during which indigenous witnesses for the various claimants gave direct evidence, followed by the expert anthropological testimony of Professor Marcia Langton (called by the Bidjara people), Dr Suzi Hutchings (called by the Brown River people), Dr Lee Sackett (called by the Karingbal descendants of Jemima) and Professor Peter Sutton (called by the State of Queensland).

15    Oral closing submissions were completed on 14 November 2013.

16    On 6 December 2013 judgment was delivered in the proceeding, with the result that none of the three claims succeeded. See Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229.

17    In short, the Karingbal people’s claim failed because her Honour found that the descendants of Jemima, who made up the claim group in that proceeding, could not establish that Jemima was a Karingbal person at sovereignty.

18    While her Honour found that both Bidjara people and Karingbal people, properly described, had native title rights and interests in the overlap area at sovereignty, her Honour found that neither the Bidjara nor the Brown River people (as Karingbal people) had established that they had maintained a relevant connection with the claim by traditional law and custom, from generation to generation, since sovereignty, as required by the NTA.

19    As a result, her Honour not only dismissed the three claimant applications but also, on 3 February 2014, made a determination that native title does not exist in the overlap area. See Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8.

20    It is from that determination that the Bidjara people and Brown River people now appeal. The Karingbal people – the descendants of Jemima – lodged an appeal (on each of QUD23/2006 and QUD310/2012) and filed submissions but subsequently discontinued their appeal prior to the hearing.

21    The Bidjara people appeal on the grounds that the primary judge erred:

(1)    in finding that they had not maintained their connection with the claim area by traditional law and custom, from generation to generation, since sovereignty;

(2)    by failing to accord them procedural fairness by refusing the adjournment application made by Mr Robinson at the commencement of the trial in Brisbane on 22 April 2013; and

(3)    by not hearing evidence from the Bidjara indigenous witnesses on country in accordance with the initial programming orders.

22    The Brown River people appeal on the grounds that her Honour erred:

(1)    in failing to find that the relevant connection was maintained by traditional law and custom, from generation to generation, since sovereignty;

(2)    in not hearing evidence from the Brown River claimants’ indigenous witnesses on country;

(3)    in giving greater weight to the oral evidence of the Brown River witnesses, and discounting the weight of or doubting witnesses’ written statements in circumstances where the witnesses were not given notice of her Honour’s reservations;

(4)    further, in finding that large elements of revival and recreation have occurred within the claim group since the maintaining of the claim in circumstances where those allegations were not put to Brown River witnesses;

(5)    in declining to admit into evidence the affidavit of Margaret Louise Hickson; and

(6)    by making a determination that native title does not exist in the overlap area in circumstances where the only applications for the determination of native title before the Court were claimant applications.

23    The State opposes each of the appeals and contends her Honour did not err as alleged or at all.

24    In these circumstances, the issues raised by these appeals are:

(1)    whether the primary judge erred in refusing the application of the Bidjara people for an adjournment of the trial on 22 April 2013;

(2)    whether the primary judge erred in failing to take the evidence of the Bidjara indigenous witnesses and/or the Brown River indigenous witnesses on country;

(3)    whether the primary judge erred in fact or in law in finding that the Bidjara people had failed to maintain their connection with their traditional country in the overlap area by traditional law and custom, from generation to generation, since sovereignty;

(4)    whether the primary judge erred in fact or in law in finding that the Brown River people had failed to maintain their connection with their traditional country in the overlap area by traditional law and custom, from generation to generation, since sovereignty;

(5)    whether the primary judge erred in making certain findings about the Brown River indigenous witnesses’ written statements, and about the revival of laws and customs from the commencement of the native title claim, without putting these findings to the Brown River witnesses;

(6)    whether the primary judge erred in declining to admit into evidence Ms Hickson’s affidavit in the Brown River claim; and

(7)    whether the primary judge erred in making a determination that native title does not exist.

Did the primary judge err in refusing the application of the bidjara people for an adjournment of the trial on 22 april 2013?

25    The trial was listed to commence on Monday, 22 April 2013. Four weeks were set aside.

26    At the commencement of the trial, the Bidjara people sought the vacation of the hearing because, as Raymond Robinson said:

[A]s it stands, your Honour, we have no legal representation. We have no money and we have no files.

Mr Robinson went on to explain that “we’ve had a dispute with Mr Hauff, who has withdrawn from the matter and we need an adjournment to get our money off him and to get other legal representation”. Mr Hauff is the principal of Trevor Hauff Lawyers (THL) who until 18 April 2013 had been the solicitors on the record for the Bidjara people.

27    The adjournment of the hearing was opposed by the Brown River people and the State. The Karingbal people neither consented to, nor opposed, the adjournment.

28    The primary judge refused an adjournment of the trial altogether, although she deferred the commencement of the trial to the following day. The Bidjara people contend that her Honour thereby denied them procedural fairness. Ground 2(a) of their amended notice of appeal alleges:

The learned primary judge erred by failing to accord the appellant procedural fairness by:

(a)    Refusing the appellants’ application for an adjournment or otherwise allowing the appellant further time to prepare and present evidence in circumstances where the appellant was unrepresented, did not have funds and was unable to properly instruct an anthropologist and where the anthropologist qualified her evidence by stating that, due to limited resources available to [the] Bidjara, she had been unable to complete all the necessary investigations;

29    The anthropologist to whom this ground referred was Professor Langton. She said that she had been “extremely disadvantaged in this case”, although it is apparent that the disadvantage of which she spoke was attributable to the impact of the Bidjara people’s limited pre-trial funding on her preparation and not the refusal of the adjournment.

30    The Bidjara people had previously had legal representation. Their original claim in 2008 was filed by the Principal Legal Officer of Queensland South Native Title Service Ltd (QSNTS). The Bidjara people continued to be represented by QSNTS until at least 2010. At different times in 2011, the Bidjara people were represented by the legal firms of RFG Finlayson and Associates and Rajesh Gopal Solicitors. THL commenced acting for the Bidjara people in early 2012 and, as indicated, continued to do so until 18 April 2013, four days before the trial was to commence. On that day, THL filed a notice of ceasing to act in relation to all of the matters involving the Bidjara people.

31    The circumstances in which the instructions of THL were terminated are not altogether clear. According to the oral submissions of Mr Robinson to the judge, the firm held $225,000 in its trust account paid by Xstrata Ltd, being the consideration under an ILUA. By letter dated 10 April 2013 addressed to THL, the “Bidjara native title applicant groups/Bidjara endorsed parties” instructed that firm to transfer the whole of the $225,000 immediately to Bidjara Traditional Owners Ltd. The letter asserted that the money had been paid to THL by mistake and continued:

In terms of the current and future Federal Court proceedings involving Bidjara and its native title claims process, Bidjara is yet to decide who they will engage as their legal representatives. When this decision is made, you will be informed accordingly. Bidjara has directed that Mr Ray Robinson, CEO Bidjara Traditional Owners Ltd, and a Bidjara native title applicant, has responsibility to act on behalf of Bidjara in this matter.

You would understand that this matter needs to be settled as expeditiously as possible and under these circumstances your immediate advice on receipt of this correspondence that you have transferred the amount for $225,000 to Bidjara Traditional Owners Ltd is appreciated.

The letter had the signatures of 11 persons some of whom had included a date against their signatures in an apparent indication of the date on which they signed the letter. The latest of the signatures is 15 April 2013 and it is possible that the letter was not sent to THL until that date.

32    The content of the letter suggested that the instructions of THL had been terminated by the Bidjara people, either expressly or by the direction that the firm give up the funding it was holding to secure its costs of representing the Bidjara people and retaining counsel.

33    In any event, Raymond Robinson announced at the commencement of the hearing on 22 April 2013 “I represent the Bidjara people your Honour”. As alluded to above, Mr Robinson is not an admitted legal practitioner and is the Bidjara people’s lay advocate. He then made the application for the adjournment to which we referred earlier.

34    In support of the application, Mr Robinson tendered the letter of 10 April 2013 referred to above and a letter of 15 April 2013 from Creevey Russell Lawyers to Mr Hauff. As this was not included in the appeal books, this Court is not aware of its contents. It was not suggested that it is of present relevance.

35    In his oral submissions, Mr Robinson indicated that the Bidjara people had not been able to obtain funding for legal representation from QSNTS or from the Department of Family and Community Services, Housing and Indigenous Affairs. He also said that a dispute had arisen between the Bidjara people and THL about the monies held in that firm’s trust account in the course of which Mr Hauff told Mr Robinson that he would withdraw.

36    The primary judge refused the adjournment, giving ex tempore reasons, the transcript of which extends over five pages. Her Honour referred to evidence that a lack of funding for the Bidjara people was not a new development as, from at least mid-2011, the Bidjara people had indicated their intention to proceed with their application despite having no formal funding. Further, despite having no funding, the Bidjara people had made eight interlocutory applications including several seeking the striking out of the claims of others. In addition, the solicitor for the Brown River people had deposed to receiving on 18 April 2013 an email from Mr Hauff in which Mr Hauff “indicated that his retainer had been terminated”, with the implication that it was the Bidjara people who had terminated THL’s instructions, rather than vice versa. Her Honour noted that the matter had been fixed for hearing for some time; that the Court and the parties had invested substantial time and costs in being ready to proceed; that there was no adequate explanation for the Bidjara people being in the position announced by Mr Robinson; that the claims had been on foot for a long time, and that the Court had on previous occasions vacated hearing dates in order, amongst other things, to accommodate the convenience of the Bidjara people. Her Honour concluded:

It would be … a great injustice to the Brown River People, to the Karingbal people and to the State of Queensland if the matter were to be vacated on the basis of such a scant evidentiary foundation as has been provided … in support of the application by the Bidjara people.

37    Shortly afterwards, the primary judge allowed Mr Robinson to renew his application so as to present evidence of a text message transcript of a voice mail message from Mr Hauff which was said to indicate that it was Mr Hauff who had determined to cease to act for the Bidjara people rather than the Bidjara people terminating his retainer. The message, as recorded by the judge on the transcript, read as follows:

? Trevor, hi. Look, I just got a – sugar. I decided to pull the pin on that so that if you get … this message was provided by Telstra at no charge to you.

The message indicated that it had been sent on 17 April 2013.

38    Understandably, the primary judge regarded this message as ambiguous. It was just as consistent with Mr Hauff indicating that he was not prepared to proceed given the withdrawal of the funding provided to him in respect of the costs of the trial. The judge went on to say that, even if it was Mr Hauff who decided that he would no longer act for the Bidjara people, the prejudice to the other parties outweighed the prejudice to the Bidjara people, especially as the Court was not provided with any indication as to when the matter could again be listed for hearing. Her Honour confirmed the refusal of the adjournment.

39    Later her Honour granted leave to Mr Robinson, pursuant to s 85 of the NTA, to represent the Bidjara people in the proceedings. Insofar as Mr Robinson was himself a claimant, he did not need that leave but the grant of leave recognised that he could represent all the Bidjara claimants. The primary judge also granted leave to a Mr McLeod (a non-lawyer) to represent the Karingbal claimants.

40    The refusal to grant the adjournment was a pre-trial decision, but it is open to the Bidjara people to make it a ground of appeal against the final judgment as it may have affected the final result: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6]; [2002] HCA 22 (Gaudron, McHugh and Hayne JJ). However, appellate courts do not readily disturb decisions of trial judges on adjournment applications: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 at 200 (Kirby P) and 206 (Priestley J).

41    Although the Bidjara people’s ground of appeal relating to the refusal of an adjournment asserted a denial of procedural fairness, a number of Counsel’s submissions were directed more to review of the discretionary decision involved. This engaged the principles stated in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ) relating to appellate review of discretionary decisions. As is well known, it is not enough that the judges of the appellate court consider that, had they been in the position of the trial judge, they would have taken a different course:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

42    Counsel submitted that the judge had failed to take into account the circumstance that the Bidjara people were on 22 April in a position of a self-represented litigant, the volume of material to be marshalled and absorbed by Mr Robinson at short notice, the legal and evidential complexity of the case, the circumstance that in addition to being self-represented, both the Bidjara people generally and Mr Robinson had a disadvantaged background, the rights and interests in issue in the litigation including the profound effects which the judge’s decision in the trial would have on the rights of the Bidjara people, the purposes of the NTA, the circumstance that Mr Robinson was appearing for an applicant group and not just for himself, and the desirability of Mr Robinson obtaining some legal advice about the issues in the case and the manner of its presentation before the case commenced. Counsel submitted that the judge had focused unduly on the prejudice to the other parties which an adjournment would cause.

43    The relevant principles concerning procedural fairness are not in issue. They require that a litigant be given a reasonable opportunity to present its case and to answer the opposing case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; [2002] HCA 11 (Gaudron and Gummow JJ). A refusal of an adjournment can constitute a failure to give a litigant such an opportunity: Sullivan v Department of Transport (1978) 1 ALD 383 at 403 (Deane J).

44    In Sali v SPC Ltd (1993) 116 ALR 625 at 628-629; [1993] HCA 47, Brennan, Deane and McHugh JJ referred with approval to the decision of the Court of Appeal in England in Maxwell v Keun [1928] 1 KB 645 and held:

[A]lthough an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.

(Citations omitted.)

To similar effect, the minority in Sali at 635 referred to Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566 at 569 in which Asprey JA said:

An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party.

45    The majority in Sali went on to note, however, that the propositions in Maxwell v Keun had been formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.

46    The Bidjara people’s focus on the prejudice to themselves by the refusal of the adjournment failed to have regard to the other considerations bearing upon the exercise of the primary judge’s discretion. As French CJ observed in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]; [2009] HCA 27:

In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

See also the observations of the plurality to similar effect at [93], [95] and [100].

47    In this respect, the submissions of the Bidjara people did not refer to many significant matters bearing on the primary judge’s decision concerning adjournment. First, the Bidjara people had had extended notice of the trial date. The orders of Reeves J made on 8 August 2012 contemplated the trial commencing on 4 March but this was revised to 22 April 2013 on 30 October 2012. The Court indicated that four weeks were set aside for the trial. Accordingly, the Bidjara people had had more than adequate notice of the trial, just under six months. It was incumbent on the Bidjara people to ready themselves for that trial, including by securing legal representation, if that was their wish. It was obvious that by April 2013, both the Court and the parties had allocated considerable resources and energy to the anticipated trial.

48    Secondly, the Court had vacated previous trial dates. The trial had originally been listed to commence on 10 October 2011 and, later, on 31 October 2011, 6 August 2012 and 4 March 2013. There is a limit on the extent to which the Court and other parties can be expected to be repeatedly readying themselves for a trial. It is fair to note, however, that there was no suggestion that the Bidjara people had been responsible for the vacation of the earlier trial dates, with the exception of the hearing scheduled on 6 August 2012. That hearing was vacated on the joint application of the Bidjara people and the Brown River people because of an extension to the overlap area occasioned by their late realisation that the areas to which their respective applications related did not include all the areas for which each claimed native title.

49    Thirdly, the matter had been the subject of detailed case management and trial programming orders. The Bidjara people had of course participated in the trial management hearings and were aware of the arrangements which the Court had made for the conduct of the trial. It is reasonable to suppose that they also had an understanding of the arrangements which the other parties had made to ready themselves for trial.

50    The Bidjara people had not complied with a number of the case management orders. At a directions hearing on 8 August 2012, the docket judge, Reeves J had fixed the dates by which the parties were to file all of the statements of their lay evidence and all of the reports of their experts. In the case of the Bidjara people, that date was 19 October 2012. The Bidjara people did not comply with that direction and, on 30 October 2012, Reeves J extended the time for compliance to 7 December 2012. When making the order for extension, Reeves J also ordered:

Should a party fail to comply with the precise terms of any of these trial programming orders in relation to any witness, whether an expert witness or a lay witness, that party will not be able to call that person as a witness or rely upon his or her evidence at the trial of these proceedings.

Despite the clear terms of this order and the context in which it was made, the Bidjara people were late in serving their statements, and the statements served contained large amounts of material which had previously been withdrawn in response to objection. The Bidjara people then sought a further extension of time but this was refused by the primary judge on 25 March 2013. At the same time, the judge made other orders relating to the evidence which the Bidjara people could lead at trial which seemed to address the prejudice which the Bidjara people would otherwise suffer. Despite that, the Bidjara people applied for leave to appeal against the judge’s orders. That leave was refused: Wyman on behalf of the Bidjara People v Queensland [2013] FCA 366.

51    Fourthly, the evidence which the Bidjara people themselves provided to the primary judge suggested that they themselves had been responsible for THL ceasing to act for them. This was in addition to the material provided by Brown River people’s solicitor which also suggested that the retainer of THL had been terminated by the Bidjara people. Further still, the judge was entitled, given the evidence she had received and the ordinary expectations of professional conduct, to proceed on the basis that THL would not have declined to act further in the matter. Rule 13.1 of the Australian Solicitors Conduct Rules 2012 provides:

13.1    A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter UNLESS:

13.1.1    The client has otherwise agreed;

13.1.2    The law practice is discharged from the engagement by the client;

13.1.3    The law practice terminates the engagement for just cause and on reasonable notice; or

13.1.4    The engagement comes to an end by operation of law.

Rule 13.1.3 is pertinent presently. THL could have terminated the engagement only for just cause and on reasonable notice. As a termination by THL on 18 April 2013 of a retainer for a four week trial to commence on 22 April 2013 could not be regarded as reasonable notice, it is not readily to be supposed that THL would have conducted themselves in this manner. The letter of 10 April 2013 and, to a lesser extent, Mr Hauff’s communication to the solicitor for the Brown River people indicate that it was the Bidjara who terminated the engagement. Accordingly, this does not appear to have been the a case of a client being left “in the lurch” by a solicitor.

52    It is pertinent that the Bidjara people did not seek to adduce any further evidence on the appeal relating to the circumstances in which the instructions of THL had been terminated to contradict this view of the evidence which was before the primary judge.

53    It is to be expected that courts will give less significance to a disability on which a party relies when seeking an adjournment which the party’s own voluntary conduct has brought about. Parties who are minded to terminate the retainer of their legal representatives shortly before a trial should be aware that the court is unlikely to consider favourably an application for an adjournment on the ground that the party is unrepresented. Courts should be particularly alert not to allow a party to “force” an adjournment by the late termination of instructions to their legal representatives.

54    Fifthly, an affidavit from the Brown River people’s solicitor prepared in support of the Brown River people’s opposition to an adjournment indicated that the Bidjara people’s assertion of a lack of funding was not a recent development. On the contrary, the Court had first been informed of that circumstance on 3 May 2011. In addition, the Court had also been informed of the Bidjara people’s lack of funding at directions hearings on 3 June 2011, 11 July 2011, 9 September 2011, 8 December 2011 and 10 July 2012. This was significant in two ways. First, the primary judge was entitled to proceed on the basis that the Bidjara people had had more than adequate opportunity in which to secure funding for the litigation. Secondly, there was little to indicate that the difficulties which the Bidjara people had experienced in the past would not continue in the future even if an adjournment was allowed.

55    Sixthly, the Bidjara people had had more than adequate opportunity in which to brief and instruct Professor Langton properly in relation to the preparation of an anthropological report.

56    Section 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), contains a statement of the “overarching purpose” of the Court’s civil practice and procedure provisions. Section 37M provides:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3)    The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4)    The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a)    the Rules of Court made under this Act;

(b)    any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.

Counsel for the Bidjara people emphasised the purpose in subs (2)(a), namely, the objective of achieving the “just” determination of all proceedings. However, the other purposes in subs (2) are also important, in particular, the efficient use of the Court’s resources, the efficient disposal of the Court’s overall case load, and the disposal of all proceedings in a timely manner.

57    In our opinion, this Court should not conclude that the primary judge failed to have regard to the matters on which the Bidjara people rely presently. In her ex tempore reasons, the judge referred to many of the matters which each party had put to her. It is true that the judge did not mention every one of the matters on which the Bidjara people now rely and those to which we have referred above. However, as Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 at [1], “an ex tempore judgment should not be picked over”. This makes it difficult for this Court to conclude that the primary judge failed to have regard to a relevant consideration, including the difficulties which the Bidjara people would face in proceeding while unrepresented.

58    Some of the matters to which the primary judge did not refer expressly in the ex tempore reasons had been mentioned by Mr Robinson only very shortly before the judge gave her decision, and there is no reason to suppose that they were overlooked by her. It is commonly the case that ex tempore reasons do not incorporate reference to every matter mentioned in the argument. That is because they are given in a context which assumes knowledge by those to whom they are directed of the submissions on which the decision is based. Ex tempore reasons are to be read and considered fairly and as a whole, with due consideration to the context in which they were delivered: Khanchitanon v R [2014] NSWCCA 204 at [26] (Adamson J).

59    The case was undoubtedly important to the Bidjara people and this was a significant matter in the decision on the adjournment application. The Full Court spoke of this importance in Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [34]; [2013] FCAFC 58:

[L]itigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come.

60    However, the importance of the issues to be determined by the trial was obvious. So also were the purposes of the NTA. This being so, it should not be inferred that, just because the primary judge did not refer to these matters expressly, their bearing on the adjournment application was overlooked.

61    Accordingly, we do not consider that the Bidjara people have shown an error of the House v The King type.

62    The same considerations apply in relation to the Bidjara people’s alternative submission, namely that on refusing the adjournment, the primary judge should have permitted Mr Robinson at least a few days in which to ready himself for the trial.

63    Nor, in our opinion, does framing the issue as one of denial of procedural fairness assist the Bidjara people. As noted, a failure to grant an adjournment can in some circumstances constitute a denial of procedural fairness. That circumstance will obtain if a party has been denied a reasonable opportunity to present its case. However, the matters to which I have referred indicate that that is not this case. The Bidjara people had been provided with a reasonable opportunity to prepare and present their case but, by their own action, had removed the possibility of doing so by legal counsel. It is to be remembered that procedural fairness requires that a party be given a reasonable opportunity to present a case: not every opportunity.

64    In our opinion, this ground of the Bidjara appeal fails.

Did the primary judge err in failing to take the evidence of the bidjara indigenous witnesses and/or the brown river indigenous witnesses on country?

65    Both the Bidjara people and the Brown River people complain of the fact that the Court did not take some of their evidence on country.

66    Arrangements had been made for evidence to be taken on country in the second week of the trial, namely, the week commencing Monday, 29 April 2013. Unfortunately, Mr Robinson, who was representing the Bidjara people, was admitted to hospital over the immediately preceding weekend. Although he had been discharged from hospital, a message received by the Court’s Registry and provided to the primary judge indicated that his medical advisors had recommended rest for a week and it seemed that subsequently he had been readmitted to hospital.

67    The Court received the information on the morning of Monday, 29 April when it assembled with the parties at Roma, preparatory to embarking on the on country evidence.

68    The primary judge outlined to the parties present the message the Court had received concerning Mr Robinson and summarised the plans which had been made for the taking of evidence in that week. Her Honour recorded that the Court had received from Ms Keelen Mailman, one of the Bidjara people claimants, an indication that, because of Mr Robinson’s illness, the Bidjara people would not be in a position to proceed. The judge indicated that, as other Bidjara people claimants were present, the Court could at least have a view of those aspects of the overlap area which the parties wished to point out and said:

There is a question as to the taking of evidence in circumstances where Mr Robinson, who is the representative, is not here. So if anybody wants to put to me what they say should happen, now is the opportunity to do so. As I understand the Bidjara people’s position, it is that evidence should not be taken in the absence of Mr Robinson.

Later, the judge pointed out that the consequence of not taking evidence on country would be that the five Bidjara people witnesses and the five Brown River people witnesses scheduled to give evidence on country would give their evidence in Brisbane in the week commencing 6 May 2013. Her Honour said:

So I am open to hear whatever applications [the parties wish] to be made, ... the Bidjara people [having] made theirs by email, effectively.

69    Mr Waters of counsel, then appearing for the Brown River people, pressed the Court to take the evidence of the Brown River people witnesses on country, submitting that it would be possible for the Bidjara people to apply to have them recalled for cross-examination if they wished. Mr McLeod, who had been granted leave to represent the Karingbal, supported the matter resuming in Brisbane for the taking of evidence. The State opposed the making of any further arrangements for the taking of on country evidence, emphasising the fact that the hearing had not been able to commence on the previous occasions when scheduled and the costs of taking evidence on country.

70    The primary judge rejected the Brown River people submission that she should proceed to take evidence on country. Given the incapacity of Mr Robinson who was then representing the Bidjara people as a lay advocate, that ruling was probably inevitable. As Beaumont J observed in Wilkes v Western Australia [2003] FCA 156 at [10] in relation to the right of an unrepresented claimant to be present at a view of a sacred site of another group, “It seems to me inevitable that, as an unrepresented party, he should be permitted to be present at each of the other sites as a necessary incident of providing him with an adequate opportunity to be heard in his own cause. I can see no alternative, in principle, or in practice”.

71    Accordingly, the planned on country evidence did not proceed and all evidence in the trial was given in Brisbane. The primary judge did however take a view of areas which the parties pointed out. It seems that others in the Bidjara people claim group assisted in that respect.

72    In her ex tempore reasons given on 29 April 2013, the primary judge referred to, and accepted, the importance which the Brown River people and Bidjara people attached to the giving of their evidence on country, to the resources, time, money and energy which the parties had committed to the proceeding, to the commitment of public funds involved in the use of the Court’s resources, and discussed the various alternatives available. Her Honour noted the disadvantages to Mr Robinson if the Brown River people proposal that their witnesses give their evidence on country in Mr Robinson’s absence was adopted (arising from the fact that he would have to cross-examine on the basis of the written record only without having seen and heard the evidence given) and to the prospect that, even if evidence on country was taken from the Brown River people witnesses, they would still be required to attend in Brisbane for the cross-examination by Mr Robinson. The judge noted the expense and organisational difficulties involved in reassembling to take evidence on country and then concluded:

So, no matter how much people want to give evidence on country, which I accept, there is a level at which the Court, frankly, can do no more and the resources which have been used to get us all here this week are simply not available to gather everybody here for another two or three days at another time.

So let me make it clear that the practical reality that we are all confronted with, the situation that we are all in, is, in my view, best resolved in the interests of justice and fairness of all people to insist, as we have done, that the view take place, which the Bidjara people have accepted should occur, and otherwise to say we are sorry. We have done the best we can to facilitate you and allow you to give your evidence in the location you wish to give it, but we cannot do so. We cannot do so because it would be unfair to proceed and we cannot come back again because it would also be unfair to impose that burden of cost, time and effort on parties in circumstances where at least part of the Brown River People’s evidence would have to be given in court and where the whole of the Bidjara people’s evidence would have to be given in court, in circumstances where both have expressed a strong desire not to do so, the fair result in this case is to say we will have the view but we will not take evidence, be it evidence in chief or any cross-examination. That evidence will all be taken in court next week.

73    As can be seen, the primary judge abandoned, with regret, the proposal to take evidence on country. The judge considered that the Court had made a proper effort to do so, that it would be unfair and too expensive to come back and expressed her desire to achieve fairness between the Brown River people and the Bidjara people in the way the evidence was given.

74    Earlier, during the course of the submissions the judge had warned the Bidjara people that she was unlikely to look sympathetically on a later application by them for evidence to be taken on country:

I should make this clear to the Bidjara people, because we’ve done everything we can and we’ve all spent a lot of money to get here and it’s just unfortunate that Mr Robinson has been taken ill, I would definitely not be looking sympathetically on [an application that] we’ve all got to come back here.

75    In her published reasons for judgment dismissing the claims of native title, the primary judge referred to the written submissions made on behalf of the Brown River people which included:

With the benefit of hindsight it may be that perhaps more could have been done to put witnesses at their ease. It would certainly have been preferable if elderly witnesses had been able to give evidence at bush locations on country, rather than within the confines of the courtroom.

At [484], her Honour was critical of this submission and said:

The submission is gratuitous. Those responsible for the Brown River people submissions (about which I will say more next) know that it was intended that much of the evidence of Aboriginal people was to be given on country and the only reason this did not occur was the sudden illness of one of the unrepresented parties. It would have been grossly unfair, to the probable point of appellable error, to permit evidence to be given on country in the absence of the authorised representative of one of the parties. For this reason, plans had to be changed, the on country hearing became a view only, and all parties were required to give their evidence in court. In these circumstances hindsight about the desirability of giving evidence on country is unhelpful.

76    As noted, both the Bidjara people and the Brown River people complain on appeal that their evidence had not been taken on country. Both allege that the primary judge had thereby denied them procedural fairness. Ground 2(b) of the amended notice of appeal of the Bidjara people claims:

The learned primary judge erred by failing to accord the Appellant procedural fairness by:

…

(b)    Not hearing evidence of indigenous witnesses for the Bidjara applicant on country and, further, in not adjourning the proceedings or allocating further hearing dates for the proceedings to allow for that evidence to be given on country and in circumstances where Prof Sutton gave evidence about the importance of evidence being given on country.

77    The corresponding ground in the Brown River people’s notice of appeal alleges as follows:

1.    The trial judge erred by denying the Appellant procedural fairness.

Particulars

(a)    Her Honour failed to provide the Appellant with a reasonable opportunity to present its case by refusing to hear the evidence of the Appellant’s Aboriginal witnesses on-country and in an informal setting as had been earlier ordered by Reeves J and instead ordering on 29 April 2013 that the Appellant’s Aboriginal evidence be heard in the Federal Court in Brisbane (Reasons at [481]-[484]).

The balance of ground 1 in the Brown River people’s notice of appeal contained complaints which are more in the nature of a challenge to the discretionary decision of the judge declining on 29 April to proceed with evidence on country, rather than to a denial of procedural fairness.

78    Counsel for the Bidjara people submitted that the primary judge gave undue prominence to the resource limitations on returning to take evidence on country and had thereby omitted to consider the fairness to the Bidjara people of allowing their witnesses to give evidence on country and the prejudice which they would suffer if they did not. The judge undoubtedly did have regard to the resource limitations but not so as to ignore the other relevant considerations. So much is evident from the summary of the matters to which the judge did have regard set out earlier in these reasons.

79    This Court frequently agrees to take evidence on country in native title hearings. In doing so, it gives effect to s 82(2) of the NTA:

(2)    In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

80    In the present case, Dr Hutchings, the anthropologist retained by the Brown River people, had stated in an affidavit made on 19 April 2012:

[24]    It is important to the claimants, from a cultural point of view, that they are able to speak about their country on location, as far as is practicable. One of the principal reasons for this is that according to cultural practice, the proper place to speak about country is within the country. The place provides the stimulus and, according to the claimants’ belief, the necessary spiritual components to facilitate proper discussion of relevant cultural matters.

[25]    In addition, claimants usually feel more comfortable speaking on their country because they understand it to be their home. Giving the evidence on country also provides the opportunity for family and community members to attend together, thus satisfying the need for claimants to speak about their country together with others as noted above.

81    These paragraphs of Dr Hutchings’ report concerned the cultural and customary concerns which the Brown River people wished the Court to take into account in conducting the proceedings.

82    During the course of the present trial, Professor Sutton, the anthropologist called by the State referred to the advantages of evidence being taken on country as follows:

Being on site always triggers much better information, much richer information. The other aspect to it though is to do with the confidence of the speaker ... [T]his kind of venue favours and advantages people who are used to speaking in public. It disadvantages those who are not and ... being out on country usually levels that one out pretty well.

83    Counsel for the Brown River people, whose submissions on this topic were adopted by counsel for the Bidjara people, submitted that the judge’s ex tempore reasons did not indicate that she had taken any account of these concerns.

84    This submission cannot be accepted. The primary judge can hardly be taken to have overlooked these concerns, these being the reasons why the Court had made arrangements for the taking of evidence on country. Further, and in any event, the judge referred expressly in her ex tempore reasons to the importance which the Brown River people and the Bidjara people witnesses attached to the giving of evidence on country, saying:

All of those witnesses had indicated through their representatives that they wished to give evidence at this location rather than in the court at Brisbane and that, indeed, it was considered very important by them to have the opportunity to give their evidence, as they say, on country rather than in the court. It was clear from what Mr Robinson said last week that he had considered people that he thought could give evidence in court and, indeed, he identified a number of people, Bidjara people, who could do so, but there were also a group of five people that he identified would very much wish to give evidence on country, including he himself.

I’m not in a position today to distinguish between the strengths of various feelings that people have about the importance of giving evidence on country, but I know it is important to all those who indicated that they wished to do so and consistent with that I decided a timetable that would facilitate that happening,

85    We also observe that, during the course of the submissions on 29 April as to the course of action to be followed given Mr Robinson’s absence, the judge said:

I actually accept that all of the people who have indicated that they want to give evidence on country will not feel comfortable giving evidence anywhere else. I accept that.

86    In the context of ex tempore reasons, this should be understood as an express reference by the primary judge to the matters which had warranted the order that evidence be taken on country.

87    Next, counsel for the Brown River people submitted that the primary judge had accommodated the difficulties for the Bidjara people arising from Mr Robinson’s illness without paying proper regard to the difficulties which that accommodation caused to the Brown River people. Again, this submission is not borne out by the judge’s ex tempore reasons. The passages set out earlier indicate that the judge did have regard to the competing interests and the effect on each party before deciding that the practical course was to abandon the attempt to take evidence on country and to take all the evidence in Brisbane.

88    One difficulty for the Bidjara people with this ground of appeal is that, having succeeded on 29 April 2014 in persuading the Court not to proceed to take evidence on country in that week, they did not make any application subsequently for the Court to take evidence on country at another time. This means that the judge was not asked to exercise again the discretion concerning the taking of evidence on country.

89    Counsel for the Bidjara people sought to overcome this difficulty by reference to the judge’s statement on 29 April that she would not be “looking sympathetically” on an application by the Bidjara people that the Court return to take evidence on country. He submitted that the omission of the Bidjara people to make a second application was explicable by their perception that it would have been futile to do so. However, there is no evidence that Mr Robinson, who was representing the Bidjara people, was aware of the judge’s statement on 29 April, he not having been present at the time it was made. Nor is there any evidence that Mr Robinson had been influenced by the judge’s statement not to make a second application for the evidence to be taken on country. The evidence before this Court is just as consistent with the Bidjara people being content to present their evidence in Brisbane, given their success in avoiding the trial proceeding on country in Mr Robinson’s absence.

90    The Brown River people did not make any renewed application for on country evidence after 29 April 2014. We observe that the primary judge’s statement that she would not look sympathetically on a further application was directed to the Bidjara people and not to the Brown River people but the Brown River people may reasonably have taken the view that that intimation applied to themselves as well. However, on the appeal counsel for the Brown River people provided an explanation for a renewed application not having been made. That was to the effect that trial counsel was aware that the evidence in chief of the relevant Brown River people witnesses would be in writing and had had reasonable grounds for thinking that none would be subjected to a rigorous cross-examination. In this circumstance, counsel had been content for the whole of the Brown River people evidence to be given in Brisbane. That indicates that trial counsel made a forensic choice. The making of that choice may not preclude the Brown River people altogether from asserting that a denial of procedural fairness occurred, but it does very much weaken the strength of the argument.

91    The fact that the evidence in chief was to be given in writing is relevant in another way. It meant that limited evidence in chief would have been given on country, had the trial proceeded that way. Counsel for the Brown River people made that plain in opening:

It’s my proposal ... when we are on country and back in Brisbane, to provide each witness with the witness statement, go through any changes they might make, make those corrections, ask them if they … adopt their statement as being true and correct, tender the statement to you and then just ask them a few questions – not many because I’m aware of the time – just to make them a bit comfortable because if I put them straight into cross-examination, that would be very difficult for them. Ask them a few questions to make them comfortable and then we go into cross-examination.

92    Whilst the importance of cross-examination is not to be under estimated, this indicates that the Brown River people’s witnesses were able to give the evidence in chief which they wished, irrespective of the place where the evidence was taken.

93    Finally, we observe that neither counsel for the Bidjara people nor the Brown River people pointed to any indication in the evidence of a witness being apparently discomforted or inhibited while giving evidence in the courtroom in Brisbane. We are conscious that, having regard to the limitations of a written transcript, the absence of such an indication is not conclusive, but it does point against there having been a denial of procedural fairness.

94    Accordingly, we consider that neither of these grounds of appeal of both the Bidjara people’s appeal and the Brown River people’s appeal is made out.

Did the primary judge err in finding that the Bidjara people had failed to maintain their connection with their country by traditional law and custom?

Primary judge’s findings

95    The primary judge found, at [625] of her reasons, that there was a strong Bidjara identity, having regard to the evidence of the Bidjara witnesses, and that the evidence supported the inference that a Bidjara society had continued to exist since sovereignty, “at least in the common, rather than the NTA, sense of a society”. Her Honour explained what she meant in this regard by stating:

That is, a distinct body of people who identify as Bidjara existed at sovereignty and may be inferred from the evidence to have continued to exist at all subsequent times.

96    Her Honour added that unlike the Karingbal (being in context a reference to the Brown River people) it could not be inferred that the concept of a Bidjara society was largely the result of the native title claim process and the anthropological evidence required to be gathered in support. Her Honour found that the Bidjara plainly existed as a distinct body of people who identified as Bidjara and who demonstrated a real interest in their own cultural heritage well before the era of the NTA.

97    Her Honour thus stated that the issues for the Bidjara were whether their contemporary society is “united in its acknowledgment and observance of the traditional, that is pre-sovereignty, laws and customs of the Bidjara people”, as required by s 223 of the NTA and as explained in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58, and whether those laws and customs “found their continued connection to that part of the overlap area” which her Honour had found was Bidjara country.

98    Her Honour found, at [627], that the anthropological evidence about the pre-sovereignty system for the acquisition and enjoyment of communal rights in land of the Bidjara must have included differential rights and responsibilities based on “familial/environmental clusters”. Her Honour said that the only additional observation which should be made was that the extent of the geographic differences of the areas incorporated within Bidjara country were so vast that the notion that all Bidjara held all of the same rights and interests in the whole of Bidjara country under the pre-sovereignty traditional laws and customs was “untenable”.

99    Her Honour thus found, at [628], that the evidence supported the inference that this important aspect of the pre-sovereignty traditional laws and customs had been lost by the time of the generation of Uncle Rusty Fraser, Bob Mailman and Betty Saylor. She accepted a submission made on behalf of the State that no evidence of any continued acknowledgment or observance of these aspects of the law and custom was given by Uncle Rusty, Ritchie Fraser, Bob Mailman or Betty Saylor at the preservation of evidence hearing held in 2001 before Ryan J.

100    Her Honour also noted that while Floyd Robinson said he had been told about people getting different parts of country, it was apparent that other contemporary Bidjara witnesses denied the existence of any such notions in their current dealings with each other. Even Floyd Robinson, who had been told these things, accepted the basic rule now was that the whole of Bidjara country belongs equally to all Bidjara. Her Honour said that was in “stark contrast” to the position that would have existed under traditional Bidjara law and customs.

101    Her Honour specifically accepted, at [629], a submission made by the State that:

The idea that all 10,000 Bidjara people hold undifferentiated – and therefore unregulated – rights and interests in the whole of such area of land and waters as may properly be found to be Bidjara country is not consistent with what can reasonably be presumed to have been the normative system in place at sovereignty.

102    Her Honour then noted, at [631], other “discontinuities” in respect of the Bidjara relationship to land. Her Honour observed that the contemporary Bidjara witnesses seemed to have lost any real understanding of at least the eastern boundaries of their country based on traditional knowledge. Her Honour did not consider that the expansive boundaries claimed to have been supported by Uncle Rusty were supported by any rational view of the evidence or as a result of the handing down by word of mouth of the knowledge of traditional boundaries. Her Honour found that traditional notions of country and the country of neighbours of the Bidjara appeared to “have largely been lost”.

103    As to the basic criterion for membership of the Bidjara claim group, her Honour noted at [633] that the evidence was that descent from a Bidjara parent, whether through the female or the male line, was the rule. In that regard, her Honour accepted, at [634], that there had been an adaptation over time, in this regard, but that this was appropriately described as adaptation of a pre-sovereignty rule, as opposed to a new rule.

104    Her Honour also accepted, at [635], that an original rule of patrilineal or patrifilial descent that operated pre-sovereignty had been replaced by a contemporary cognatic system, but one which appeared to be unregulated, without any imposition of any kind of limitation on the reckoning of group membership which, as a consequence of the cognatic descent model, would be ever expanding.

105    Her Honour found, at [637], there was a lack of evidence about adoption as a criterion for membership of the Bidjara. Her Honour also accepted, at [638], a submission made by the State that the expansive approach to group membership evident from Raymond Robinson’s evidence, who claimed that many people were Bidjara, regardless of how they identified themselves, was inconsistent with traditional laws and customs; as was his position that if anyone spoke the Bidjara language they must be Bidjara.

106    So far as Raymond Robinson’s evidence was concerned, her Honour also said, at [638], that his role as an advocate for the Bidjara gave him prominence in the proceedings disproportionate to other witnesses, a few of whom made claims to similar effect, and she was not prepared to use his advocacy as evidence of material discontinuity.

107    At [639] and following, the primary judge, so far as social organisation was concerned, accepted the State’s submission that in almost all respects the former laws and customs regarding social organisation had ceased to operate for the Bidjara. Her Honour accepted there was no evidence regarding kinship rules or a kinship system. She accepted the evidence of Professor Sutton, who described the practice whereby older men and women are simply referred to as “Uncle” and “Aunty” as one that had evolved rapidly in the national Aboriginal domain in recent decades and did not reflect genealogical relationships but the recognition of status and gender, with the consequence that the use of such terms is “a post-classical innovation and represents a departure from traditional kinship norms”.

108    Her Honour accepted that the anthropological evidence supported the existence of a four class section system and exogamous moieties which regulated the composition of the particular “land holding entity”, whether it be an estate or smaller local group, in pre-sovereignty times. Uncle Rusty knew about the system of skins, however contemporary witnesses did not have any knowledge about those customs, let alone continue observance of any section system, except Patricia Fraser. Ms Fraser’s knowledge, however, appeared to come from some research.

109    Thus, the primary judge held, at [645], the evidence could not be seen as suggesting any continued knowledge of the section system. To the contrary, it suggested the knowledge had been lost and some attempt at revival had been made for the purpose of the hearing. Her Honour did not accept Professor Langton’s opinion that this showed “very clear evidence of continuity”. Rather, her Honour considered it showed clear evidence of loss of traditional law and custom and accepted the evidence of Professor Sutton, who said there was no evidence of continuation of section/moiety structures as norms for the selection of marriage partners. Her Honour found, at [646], that the section system itself had disappeared, as had traditional law about marriage.

110    Her Honour accepted however, at [648], that there was an element of continuity in the Bidjara’s continued respect for elders and she did not consider that the approach of the Bidjara to the Karingbal (such as that the Karingbal do not exist or are a subgroup of the Bidjara) was good evidence of discontinuity, because that approach had no doubt been affected by the litigation.

111    Her Honour accepted, however, that the weight of the evidence indicated that, for all practical purposes, the domains of separate men’s and women’s business had been lost.

112    As to spiritual beliefs and practices, her Honour accepted, at [652] and following, all of the State’s submissions about these issues, to the effect that the traditional use of land had given way to the demands of contemporary life; there was no evidence of hand stencils being updated by families; the cultural heritage processes were for the purpose of enabling mining and were investigative, rather than ones by which known sacred sites were identified for preservation; some but not all witnesses gave evidence about calling out to old people or spirits when entering country and about spirit messenger birds and junjadis; but accepting that Floyd Robinson gave evidence of traditional narratives which it should be inferred had been passed onto him by his elders.

113    Her Honour, at [653], considered that the problem for the Bidjara was evidentiary. Their focus in giving evidence was so much on establishing the extent of Bidjara country that little had been said about the continuation of traditional laws and customs as norms of contemporary Bidjara society. Even taking into account Floyd Robinson’s traditional narratives, they did not demonstrate the maintenance today of a traditional normative system. Her Honour accepted the following submission of the State, that the evidence did not directly address that inquiry into the maintenance today of the traditional normative system:

For example, do the stories relate to how rights and interests in land are held and regulated? Do they relate to particular sites? Do they convey information having a normative content? Are they known by most of the group or is knowledge of them confined in some way for any particular reason? The evidence simply does not permit of any answers to these questions.

114    Her Honour also found that the evidence of Floyd Robinson, who had spent time learning from Uncle Rusty, lacked detail about the content of what he was taught. Examples were provided by her Honour in that regard. At [654], her Honour did not accept that the lack of detail was for reasons of cultural sensitivity, and inferred the detail was simply not known.

115    As to the Mundagatta creation story, mentioned by a number of witnesses, her Honour found, at [656], that it was a solitary fragment of what once had been a rich tapestry of Bidjara creation myths relating to all aspects of Bidjara country which had disappeared.

116    Similarly, at [657] and following, her Honour found that a number of customs no longer existed, such as a taboo on the names of the dead, ceremonial life, and language.

117    In the event, at [672], her Honour found the requirements of s 223 of the NTA had not been met by the Bidjara. While accepting that, at sovereignty, the overlap area was Bidjara country and Bidjara people had rights and interests in it, her Honour found that the people who now identify as Bidjara did not maintain a connection by a body of traditional laws and customs, as opposed to “attenuated or transformed fragments of law and customs”. Thus, the connection maintained by the Bidjara today did not have a source in traditional law and custom.

118    Her Honour finally noted that this conclusion concerned the requirements of the NTA and said nothing about the fact of Bidjara identity or the existence of contemporary Bidjara society. Equally the conclusions said nothing about the value of Bidjara efforts to continue, revive and protect aspects of Bidjara culture.

Bidjara people’s submissions

119    The Bidjara invite the Court to conduct a review of much of the evidence given at the trial and the reasons of the primary judge, and, in so doing, to draw its own inferences and conclusions on the connection issue. If this is done, these appellants submit, the Court should come to a different conclusion concerning continuity of connection by traditional laws and customs than did the primary judge.

120    The Bidjara note her Honour’s conclusion, at [672], that she was not satisfied that the requirements of s 223 of the NTA had been met by them. In particular, they note that her Honour was not satisfied that the Bidjara today possess any interests under traditional law and custom which give them a connection with the land or waters of the overlap area. This is because her Honour was not satisfied that any body of traditional law and custom, as opposed to attenuated or transformed fragments of law and customs, had continued. Further, such connection as there was, was not a connection which had as its source traditional law and custom.

121    The Bidjara say the evidence of continued laws and customs could be found in the anthropological evidence, reflecting the evidence given by the traditional owners. They say the problem with her Honour’s approach is that over the course of more than two centuries there are inevitable changes, adaptions and evolutions, but these have not severed the continuity.

122    The Bidjara note that the primary judge chose to conduct the assessment of continuity against what they refer to as “eight factors”. They say these are to be found in her Honour’s reasons at [626]-[672]. Those paragraphs deal, in broad terms, with the topics of: land tenure system; group membership; social organisation; spiritual beliefs and practices; creation stories – Mundagatta; taboo on the names of the dead; ceremonial life; and language.

123    The Bidjara accept that the first step required in determining whether native title exists today is to identify the traditional body of law and customs at sovereignty, noting that law and custom is to be seen in Aboriginal terms as an aggregation of traditional values, rules, beliefs and practices derived from the past, equating to practices, traditions and customs, as explained by Lee J in Ward on behalf of the Miriuwung and Gajerrong People v State of Western Australia (1998) 159 ALR 483 at 504; [1998] FCA 1478 (Ward 1998).

124    The Bidjara note the legislation does not use the word “society” but accept that the existence of some form of society is essential, as explained in Yorta Yorta. They note that her Honour found the existence of a contemporary Bidjara society and that it had continued to exist since sovereignty. The Bidjara submit that her Honour’s requirement that the contemporary society must be “united in its acknowledgement and observance of traditional … laws and customs”, so far as the requirement of “united” is concerned, would add a requirement not found in either s 223 of the NTA or the case law.

125    They submit the essence of the fact finding inquiry is to determine the extent to which traditional practices, traditions and customs that existed at sovereignty have survived and continued by virtue of the traditional normative system and not by reason of the legal system imposed with the advent of the new sovereign. This also recognises there is room for adaptation and interruption of practices, tradition and customs. These are not necessarily fatal to continuity but are to be assessed as questions of fact and degree, as explained by the plurality in Yorta Yorta at [82]-[83].

126    Thus, in the Bidjara people’s submission, the key question, as explained in Yorta Yorta at [83], is whether the law and custom can still be seen as the traditional law and the traditional custom.

127    The Bidjara emphasise that adaptation in accordance with laws and customs of the ongoing society does not deny a traditional character.

128    The Bidjara submit that, in arriving at her conclusions on continuity, the primary judge erred by concentrating on aspects of discontinuity and applying standards for finding continuity that are not required by law. It is said this resulted in her Honour placing a focus on discontinuities and not appreciating the continuities, albeit the continuities were represented by law and custom in an adapted form. It is submitted that, properly considered, these continuities would have enabled her Honour to conclude s 223 was satisfied.

129    Rather, the Bidjara submit, the Court is required to factor into the fact finding exercise the most profound effects wrought on the Bidjara society by British settlement and the consequent inevitable great changes to the structures and practices of Bidjara society and its members.

130    The Bidjara contend that the effects on Bidjara society to which regard was required to be had include removal of Bidjara people from the land and their splitting up through various kinds of social organisation. They submit the primary judge appeared to accept Professor Sutton’s identification of four types of social history from the 1960s, namely, pastoral based experience; incarceration at Woorabinda and other reserves; town reserve tenant camps (yumba); and life in cities such as Rockhampton and Brisbane. Additionally, they point to the evidence of frontier violence.

131    The Bidjara submit the findings of the primary judge that there is no body of traditional law and customs of the Bidjara that has continued since sovereignty through to today are in “rather absolute terms”. For example, her Honour found, at [672], that the current connection is not a connection which has its source in traditional law and custom. It is submitted that this finding is at odds with a number of significant findings consistent with substantially uninterrupted acknowledgement and observance as required by s 223.

132    The Bidjara submit that, as to the “lay evidence” of continuity, the evidence of Uncle Rusty is a “watershed point” in establishing continuing connection. They say the effect of his evidence is that Bidjara traditional laws and customs were still being acknowledged and observed in 2001, when Uncle Rusty gave his evidence before Ryan J in order to preserve it for the final hearing. It is submitted his evidence is also an important link to the laws and customs at the time of sovereignty. The Bidjara further emphasise Uncle Rusty passed on his knowledge, for example, to Floyd Robinson.

133    In that regard, the Bidjara say Uncle Rusty’s evidence should not be treated as that of the last of his tribe, as it effectively was. They say the evidence was that there had been a movement to maintain the law and custom passed on from Uncle Rusty among others. It is submitted he and others of that generation were talking about Bidjara country long before mining, coal and gas fields were topical and they did a lot of teaching.

134    The Bidjara contend the evidence demonstrates that a significant cohort of Bidjara people worked to preserve and pass on traditional law and custom. Besides Uncle Rusty, Bob Mailman, Betty Mailman, Dusty (Archie) Fraser, Fred Lawton, Amby and Sammy Albury, Nell Robinson (Fraser), Uncle Frank Geebung, Bernie Mailman, Uncle Joe Lawton, Aunt Jessie Turner (Fraser), Uncle Len Mailman, Ritchie Fraser, Wally Mailman, Doreen Fraser and Henry Gadd were all other observant and knowledgeable Bidjara persons of that same generation. They in turn had learned from people such as Jack Fraser, Patricia Fraser’s grandfather, born in 1887. It is submitted Patricia Fraser was also very strict and knowledgeable about Bidjara law and customs. The concern of Uncle Rusty’s generation for preservation extended to concerns about desecration of sites, including removal of remains.

135    The Bidjara also note that Keelen Mailman, who was 47 years of age at the time of the hearing, speaks the Bidjara language fluently, having been taught by her mother Betty Mailman. It is submitted language and spirituality are connected. Her mother (Yungella) also taught her Bidjara women’s business and she in turn teaches her grandchildren Bidjara language, culture and traditions. Ms Mailman was also taught how to live off the land and she has learnt about bush fruits and how to kill, clean and cook budburra (echidna). She said there was a form of familial tenure, that women’s business was still observed, and that budburra was pretty much everyone’s favourite food. She described a rule about the distinction between the prohibition on moving stones, axes and artefacts and moving a coloured piece of rock like a gemstone, which could be moved so long as it remained in Bidjara country.

136    The Bidjara also emphasised the evidence given by Floyd Robinson, Patricia Fraser, Bob Mailman, Brendan Wyman, Raymond Robinson, Rodney Mailman and John Leslie in similar ways.

137    In short, the Bidjara submit the primary judge did not regard, as evidence of continuity, the considerable body of evidence about the number of Bidjara who consistently and for many years worked to preserve sacred sites, secure the return of remains and were active against desecration, which developed into cultural heritage work.

138    Further, they submit, the witnesses’ evidence on the practices concerning marriage supports the reasonable inference that the practice of marriage outside Bidjara was consistently observed, notwithstanding that it may not have been specifically referred to by all witnesses.

139    Additionally, the Bidjara submit the anthropological evidence supports a finding of continuity. Professor Sutton, they say, gave evidence that Bidjara country included the upper Warrego River system as far up as the Carnarvon Gorge at sovereignty and the continued close connection to Carnarvon Gorge. He considered it was convincing that Bidjara people had been exercising custodial rights in heritage in the Gorge since the 1960s. The Bidjara submit the primary judge’s perspective that the necessary connection (through language, dance and song) finished with the death of Uncle Rusty jars with the evidence of a close relationship to the land in question as reflected in the long term protection of cultural heritage.

140    The Bidjara also rely on the evidence of Professor Langton on the continuity of Bidjara songs, dances and stories; Professor Sutton’s evidence about the singing of elders and that revitalisation is a legitimate means of maintaining culture; Dr Hutchings’ evidence on Bidjara ceremonial rights and interests in the Carnarvon Gorge; and Professor Sutton’s evidence of an absolute continuity of entry into a landholding group by descent from an ancestor. They submit Professor Sutton’s evidence of absolute continuities, that the interest in land is always communal, and that land is not a chattel and is inalienable, supports the continuity case.

141    They also emphasise Professor Sutton’s evidence about spirit connection with country. They say the Bidjara believe they have a responsibility to protect the tombs of the old people, assert an incest taboo and have an emphasis on supernatural domains.

142    The Bidjara submit that her Honour also failed to take into account evidence from Professor Sutton that Aboriginal societies, generally, started marrying “for love” after the Second World War.

143    The Bidjara also emphasise continuity through the evidence of teaching of language, the passing on of mystical beliefs, the continuity of art and its significance and the handing on of knowledge by elders.

144    The Bidjara, therefore, submit that the primary judge applied a standard of strict observance and acknowledgement of a body of traditional laws and customs under which rights and interests to land are held, by reference to eight factors mentioned above, and that approach diverted from the task of assessing the fact and degree of changes in practices, if any, and the reason for those changes. For example, burials could not take place in bark as they had in the past because it was illegal. Spearing and death for contravening customs or practices is not tolerated, although a norm described by Uncle Rusty.

145    The Bidjara say that if the primary judge had applied a test of whether the whole of Bidjara traditional laws and customs had been acknowledged and observed substantially uninterrupted and having regard to interruptions and adaptations, her Honour would have found continuity.

State’s submissions

146    The State, in effect, cautions the Court, in the exercise of its appellate function, to bear in mind that the Court has not seen or heard the witnesses and should make due allowance in that respect. The State emphasises that in such an appeal a question always arises whether the primary judge enjoyed a significant advantage over the appeal court in the evaluation of evidence. See for example Moses at [309] and the authorities there cited.

147    The State submits that, if all that is shown is that the primary judge made a choice between competing inferences, being a choice this Court may not have been inclined to make, but not a choice the primary judge should not have made, no error will be demonstrated. See Sampi on behalf of the Bardi and Jawi People v State of Western Australia (2010) 266 ALR 537 at [7]; [2010] FCAFC 26. This approach, it is said, also accords with the principles that govern appeals from decisions involving the exercise of judicial discretion as explained in House v The King.

148    The State submits that the primary judge’s approach to continuity was consistent with the Yorta Yorta test and did not place standards on the continuity of a body of traditional law and custom that are not required by law, as the Bidjara submissions put it.

149    The State submits her Honour made no error in identifying a requirement that contemporary Bidjara society must be united in its acknowledgment and observance of traditional laws and customs, because that is precisely what was said to be the case in Yorta Yorta at [89].

150    The State further submits that the primary judge did not apply a test requiring continued “strict observance” for a period of 200 years or so, as the Bidjara suggest.

151    As to the Bidjara submission that the Court is required to factor into the fact finding exercise the most profound effects wrought on Bidjara society by British settlement, the State refers to what was said in Bodney v Bennell (2008) 167 FCR 84 at [97]; [2008] FCAFC 63 to the effect that mitigating the effects of change by reference to white settlement “is not a process contemplated by Yorta Yorta”. The Full Court there emphasised that the continuity inquiry does not involve consideration of why acknowledgement and observance stopped. In the State’s submission, if that were not the case a great many Aboriginal societies would be entitled to claim native title rights even though their current laws and customs are in no meaningful way traditional.

152    The State also submits that the primary judge’s finding as to some limited continuities of law and custom are not consistent with substantially uninterrupted acknowledgement and observance, as required by s 223 of the NTA.

153    The State does not accept the characterisation of the indigenous Bidjara evidence provided in the Bidjara submissions and submits that the range of topics referred to as having been addressed by each witness only serves to highlight the inconsistencies in the evidence that was given. It says the Bidjara submissions have not engaged with the fundamental discontinuities which were found by the her Honour, including:

    an important aspect of the pre-sovereignty traditional laws and customs, namely the existence of differential rights and responsibilities based on familial/environmental clusters, had been lost by the time of the generation of Uncle Rusty and other witnesses as of 2001 (at [627]-[629]);

    the notion that the Karingbal were a subclan of the Bidjara was not supported by the Bidjara evidence (at [630]);

    the loss of any real understanding of (at least the eastern) boundaries of their country based on traditional knowledge (at [631]-[632]);

    apart from descent, and possibly adoption, the contemporary “expansive” approach to group membership exhibited by Bidjara witnesses is inconsistent with traditional laws and customs (at [633]-[638]);

    in almost all respects, the former laws and customs regarding social organisation have ceased to operate (at [639]-[651]);

    the loss of all but the Mundagatta creation story (at [656]); and

    the loss of all ceremonial life and activity (at [658]-[662]).

154    The State also does not accept as accurate the summary of the expert evidence, in particular that of Professor Sutton, that the Bidjara provide in their submissions, at least in some respects, due to a lack of context or omissions.

155    In short, the State submits the primary judge’s reasons contain a careful and detailed summary of all the evidence, and are not attended by any error in the construction of s 223(1)(a) of the NTA, or in the application of the approach required by Yorta Yorta to the question of continuity. In the State’s submission, the contention that her Honour applied a standard of “strict observance and acknowledgement” is not reflected in her Honour’s reasons.

Continuity principles and challenges in proving native title

156    Before dealing in more detail with this ground of appeal and the related ground of appeal of the Brown River people concerning the primary judge’s continuity findings for each group of claimants, we consider it is useful more generally to identify the legal principles governing continuity, as well as the challenges that confront claimants and a trial judge in relation to the proof of native title, and a little of how the primary judge approached these issues.

157    Section 223(1) of the NTA defines the expressions “native title” or “native title rights and interests” in the following terms:

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)     the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)     the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)     the rights and interests are recognised by the common law of Australia.

158    In Yorta Yorta the plurality (Gleeson CJ, Gummow and Hayne JJ) explained the full significance of the expression “traditional laws acknowledged, and the traditional customs observed” that appears in this definition. Their Honours made a number of salient statements about the expression to the following effect:

    The reference to “traditional laws acknowledged, and the traditional customs observed” is, in fact, a reference to a body of norms or a normative system (at [39]).

    The fundamental premise from which the NTA proceeds is that the rights and interests with which it deals can be possessed under traditional laws and customs (at [40]).

    Taken as a whole, the expression “traditional laws acknowledged and traditional customs observed”, by its use of “and” rather than “or”, obviates any need to distinguish between what is a matter of traditional law and what is a matter of traditional custom. Nonetheless, the rules must have normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters (at [42]).

    Rights or interests in land created after sovereignty, and which owe their origin and continued existence only to a normative system other than that of the new sovereign power, will not be given effect by the legal order of the new sovereign (at [43]).

    The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of rights and interests in land. That does not mean that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. It follows that the only rights or interests in relation to land or waters which will be recognised after the assertion of the new sovereignty are those that find their origin in pre-sovereignty law and custom (at [44]).

    The word “traditional” is apt to refer to a means of transmission of law and custom and a traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the NTA “traditional” carries with it two other elements in its meaning. First, an understanding of the age of the traditions such that the origins are to be found in the normative rules of societies that existed before the assertion of sovereignty. It is only those normative rules that are “traditional” laws and customs. Secondly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and observed requires that the normative system is one which has had “a continuous existence and vitality since sovereignty”. If the normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist, and any later attempt to revive adherence to the tenets of the former system cannot and will not reconstitute the traditional laws out of which rights and interests must spring if they are to fall within the definition of native title (at [46]-[47]).

    There is “an inextricable link” between a society and its laws and customs (at [49]). Their Honours expressly asked at [52] the following set of questions:

Has the society ceased to exist? Does not the survival of knowledge of the traditional ways suggest that it has not? Or is it shown that, although there is knowledge, there has been or is no observance or acknowledgment? These may be very difficult questions to resolve. Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult. In the end, however, because laws and customs do not exist in a vacuum, because they are socially derivative and non-autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the questions posed earlier must be answered, no.

    If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can properly be described as being the existing laws and customs of the earlier society (at [53]).

    Demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases where it is recognised that the laws and customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted (at [82]).

    What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. The key question is whether the law and custom can still be seen to be traditional law and traditional custom (at [83]).

    Interruption of use or enjoyment presents more difficult questions (at [84]). Acknowledgement and observance must have continued substantially uninterrupted since sovereignty. The qualification “substantially” is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that may have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, it is necessary to demonstrate that the normative system out of which the rights and interests arise is the normative society as at sovereignty, not one rooted in some other, different, society (at [89]).

159    The primary judge was fully apprised of these Yorta Yorta requirements. Her Honour discussed them, with other general principles, at [449]-[472] of her reasons.

160    At [460], she also had regard to what a Full Court of this Court said in Bodney at [74] explaining that a society may continue to exist even though their traditional laws and customs may cease to exist.

161    By reference to De Rose v South Australia (No 2) (2005) 145 FCR 290 at [58]; [2005] FCAFC 110, her Honour, at [462], accepted that the requirement for continuity is not absolute and nor is the requirement for unity. At [465], the judge drew a number of propositions from Bodney as follows:

(1) ‘While it may be the case in a given instance that the evidence necessary to establish connection will be the same as that used to identify the claimed rights and interests…s 223(1)(b) serves its own purpose in s 223(1) and is not rendered largely redundant by s 223(1)(a)’ (at [165]).

(2) ‘…connection is not simply an incident of native title rights and interests as such. The required connection is not by the Aboriginal peoples’ rights and interests. It is by their laws and customs’ (at [165]).

(3) ‘…because the connection inquiry is not tied to the rights and interests claimed — though their character and their exercise may be important in a given case in demonstrating connection by the traditional laws and customs — the inquiry itself is not contrived by the nature of the rights and interests (‘communal’, ‘group’ or ‘individual’) claimed in an application’ (at [166]).

(4) ‘…the laws and customs which provide the required connection are ‘traditional’ laws and customs. For this reason, their acknowledgment and observance must have continued ‘substantially uninterrupted’ from the time of sovereignty: Yorta Yorta HC at [86]–[89]; and the connection itself must have been ‘substantially maintained’ since that time: Ward FC at [241]’ (at [168]).

(5) ‘…the connection inquiry requires, first, an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws as constituting a connection of the people with the land. It is often observed, as in Ward FC at [243], that connection can be maintained by the continued acknowledgement of traditional laws and observance of traditional customs. The reason for this is that the laws and customs themselves characteristically will, in significant degree, presuppose or envisage direct connections with land or waters or will, if acknowledged and observed, link community members to each other and to the land or waters in a complex of relationships’ (at [169]).

(6) ‘…though the connection inquiry requires the formal characterisation of the laws and customs we have noted, it equally requires demonstration that, by their actions and acknowledgement, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs’ (at [171]).

(7) ‘…an effect of European settlement on aboriginal communities was often enough to render it impracticable for them to maintain a traditional presence on substantial parts of their respective lands. However, it is equally accepted in decisions of this Court that such impracticability does not necessarily mean that the surviving members of such a community have not substantially maintained their connection with their land …It may have subsisted at a spiritual and/or cultural level… and for this reason such evidence as there may be of attempts to overcome the absence of physical presence on land that is claimed is of real importance…’ (at [172]).

(8) ‘…a requirement of connection ‘involves the continuing internal and external assertion by [a claimant community] of its traditional relationship to the country defined by its laws and customs … which may be expressed by its physical presence there or otherwise:’: [Sampi v Western Australia [2005] FCA 777 (Sampi) at [1079]; see also Neowarra [Neowarra v State of Western Australia [2003] FCA 1402] at [353]’ (at [174]).

(As in original.)

162    At [466], she also recognised that physical absence does not necessarily prove lack of connection, referring to Risk on behalf of the Larrakia People v Northern Territory (2007) 240 ALR 75 at [104]; [2007] FCAFC 46, as well as Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group (2005) 145 FCR 442 at [92]; [2005] FCAFC 135.

163    The judge thus made the point, at [469], that the question is not merely whether a society has continued. The question is whether there has been continued acknowledgement and observance of pre-sovereignty laws and customs of that continued society, albeit recognising that change, adaptation and interruption may not be fatal in that “[s]o long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional”: see Bodney at [74]. She said that, putting it another way, for the purposes of the NTA, it is the continued acknowledgement and observance of pre-sovereignty laws and customs that enables it to be said that the relevant society itself has continued.

164    Nothing that the primary judge stated by way of general principle can or should be doubted. The principles identified by her Honour are pertinent to the resolution of this appeal, just as they were to the determination of the claimant applications before her Honour.

165    Her Honour ultimately said, at [472], that it should be apparent that the provisions of the NTA involve “a construct”, and explained what she meant by saying that these provisions impose a set of requirements which bear no necessary relationship to contemporary Aboriginal Australia or, for that matter, what might ordinarily be considered to be a society and its continuance. She added that whether native title rights and interests can be established does not necessarily say anything about the existence of any contemporary Aboriginal society (in the sense of a body of persons united in and by its acknowledgement and observance of a body of laws and customs), the content or strength of any norms and values of that society, or the merits or otherwise of those norms and values.

166    Again, understood in the context in which the judge made these comments, coming at the end of an analysis of the relevant principles to be applied in determining whether the requirements of s 223 NTA have been met in any case, they are unexceptional. Her Honour fairly makes the point that not every contemporary society of Aboriginal peoples will necessarily be able to satisfy the s 223 connection requirements as explained in Yorta Yorta. The need to establish a “normative system” that has existed over the generations since sovereignty is the particular challenge.

167    The primary judge recounted, at section 5.1 of her reasons, the substance of the evidence given by the Bidjara claimants at the hearing. It is not suggested in this appeal that her Honour erred in any relevant way in the account she provided of this evidence. It is submitted, however, that the judge, in the course of regarding which laws and customs of the Bidjara inferred to have been acknowledged and observed at sovereignty had since been discontinued (the “discontinuities”), failed or failed sufficiently to determine whether the “continuities” identified in the evidence established the maintenance of a traditional normative system amongst the Bidjara. A similar submission is made on behalf of the Brown River/Karingbal appellants who say her Honour failed to regard the strength of their connection evidence.

168    It may be accepted that proving, or disproving, that native title exists involves a much more nuanced process of assessment and judgement than simply comparing a contemporary indigenous society with an (inferred) sovereignty society. A simple comparison between what might be called the “classical” sovereignty society, and its attributes or features, with a contemporary society, and its attributes and features, will in most, if not all, situations reveal that many rules, activities or processes that fall under the composite expression “law and customs” have been “lost”; that is to say, they no longer feature as requirements that attract sanctions or as activities or procedures ritually done by members of the contemporary society.

169    In relation to the present appellants, for example, classical rules about exogamous marriage between two marrying classes or moieties, female birthing practices, complex rituals associated with death and burial, and various taboos (including on the names of the dead) might well be expected to have ceased to be acknowledged or observed over the years since contact with Europeans, in the face of different laws and customs acknowledged and observed by the dominant new settler society.

170    Of course it will always be a question of evidence in any case as to whether particular laws and customs have been “lost”, abandoned, or otherwise ceased to exist, or rather whether they have adapted to new circumstances, and so are still “traditional” for the purposes of s 223.

171    To the extent that the State in these appeals submits that the question of continuity of traditional laws and customs may be determined simply by comparing a list of laws and customs apparently followed by a contemporary society with those followed by the classical society, this submission is not accepted. As stated above, the task of determining whether, in effect, a “society” in Yorta Yorta terms has ceased to exist may be very difficult to resolve, as the plurality judgment in Yorta Yorta at [52] acknowledged.

172    In Yorta Yorta the plurality observed that, in the end, because laws and customs “do not exist in a vacuum”, because they are socially derivative and non-autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the primary question stated at [52] by the plurality, “Has the society ceased to exist?” must be answered, yes, it has ceased to exist. That remains the critical inquiry.

173    As acknowledged in these appeals, and in other cases, the first step in the inquiry that needs to be conducted is to ascertain what the classical laws and customs of a group were. Then, the laws and customs of the contemporary society may indeed be compared with them. It will be likely seen, to use the general language used above, that some laws and customs have apparently been lost, fallen into disuse or abandoned. In a given case, some other rules, activities or processes of the contemporary society may well, however, be seen to be a continuation, albeit in an altered form, of classical law and customs.

174    For example, it is not difficult to see that a contemporary practice of hunting a kangaroo with a rifle and preparing it for cooking with a knife is an adaptation of a classical custom of hunting and preparing food with pre-sovereignty implements. What has changed is the way the rule or practice (the law or custom) is done; but not the rule or practice. As the plurality in Yorta Yorta said at [82], in cases where laws and customs have been adapted in response to the impact of European settlement, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation, but also in deciding “what it was that was changed or adapted” (emphasis added).

175    Where particular contemporary laws or customs are in question, and it is suggested that a rule or practice is a new rule or practice, and not a rule or practice rooted in sovereignty, the key question is, as the plurality in Yorta Yorta said at [83], “whether the law and custom can still be seen to be traditional law and traditional custom”.

176    In the process of the inquiry as to whether or not the traditional normative system of the sovereignty society has ceased, so that the contemporary society cannot be considered to maintain that traditional normative system, no doubt a finding that a particular traditional law or traditional custom has been lost, fallen into disuse or abandoned will be relevant. Some traditional laws and customs may be more important in this process of assessment and exercise of judgment than others. The loss or maintenance of a taboo on using the names of the dead, that may have been a feature of the classical society, may be considered relatively unimportant to the inquiry. Apart from anything else, it may be considered to say little or nothing about the possession of any particular rights or interests in relation to land or waters the subject of the claim. Given that under s 223 it is the possession of rights and interests in relation to land and waters under traditional law and custom that is at the heart of the definition of “native title”, this should not be considered surprising. The loss of such a taboo may be remarked upon by way of a general observation that plainly there have been some changes to the classical system.

177    On the other hand, if a contemporary society still observes the custom of not speaking the name of a recently deceased member, then that may well add evidentiary weight to the fact that there is not only a society today, but perhaps one that in other, relevant respects maintains traditional law and custom. But of itself, one way or the other, the loss or retention of such a taboo probably says relatively little about the continuation of a traditional normative system in relevant respects.

178    The loss or maintenance of an indigenous language would ordinarily fall into the same category as a taboo on the use of names of the dead. As the anthropologists, including Professor Sutton, in the two appeals under consideration remarked in their evidence, the loss of indigenous language is a widespread phenomenon in Aboriginal Australia and is not unusual or surprising in the face of European settlement. The possession of rights and interests in relation to land and waters under traditional law and custom is not predicated on claimants proving they speak their ancestors’ language. Again, the loss of language may be observed and may raise a question as to what else may have been lost. On the other hand, the continued widespread use of a sovereignty indigenous language by a group, or its reasonably widespread use, may lend evidentiary weight to support the proposition that not only is the contemporary society the successor to the classical society, but also that the contemporary society maintains a traditional normative system in relevant respects.

179    The same may be said about a range of other laws and customs, including marriage rules and formal kinship rules; and, indeed, creation myths. The loss of Dreaming stories may raise serious continuity questions but regard must still be had to all the evidence to see if a traditional normative system has been maintained.

180    Ultimately, what the plurality said in Yorta Yorta at [89], having observed that acknowledgement and observance of traditional laws and customs must have continued “substantially uninterrupted since sovereignty”, is important in this regard. Their Honours noted that this qualification must be made to recognise that European settlement has had “the most profound effects” on Aboriginal societies and that it is “inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement”. The plurality then added:

Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society.

181    This last quoted dicta emphasises at least three things. First, as the State submits, that change to laws and customs caused by European settlement cannot simply be ignored. Secondly, that it is almost inevitable that change will have occurred. Thirdly, nonetheless, if it can be shown that there is still a “normative system”, out of which rights and interests arise, which is rooted in the sovereignty system, then those rights and interests may be recognised under the NTA.

182    Depending upon the evidence that is led in any case, claimants may establish that they continue to have a normative society rooted in the classical, sovereignty society out of which rights and interests contended for continue to be possessed, even where a range of rules and practices under laws and customs have ceased to be followed.

183    In the course of making an inquiry as to whether such a normative society continues, evidence of the loss of some classical laws and customs may be relevant, as may be the apparent creation of some new laws and customs. The inquiry remains, however, whether there continues to be a traditional normative society, notwithstanding there has been some loss, disuse or abandonment.

184    That inquiry is not properly made if it merely involves a “ticking off”, as it were, of classical laws and customs identified by the evidence having regard to the evidence of contemporary practices. There remains a requirement to consider whether what has been maintained, where that is found to be the case, demonstrates the maintenance of a normative system that is rooted in the sovereignty normative system.

185    Even where a group, or even an individual, has apparently lost much, but despite the vicissitudes of life since the coming of Europeans has maintained certain laws and customs under which rights and interests are possessed, native title may still be found to exist. This is because it may be seen, in an appropriate case, that the traditional normative system in material respects has not been lost, fallen into disuse or abandoned.

186    The question is whether the evidence in any case demonstrates that claimants are possessed of rights and interests under laws and customs that are rooted in the sovereignty laws and customs. Even a few claimants, or a single claimant, may possess such rights and interests, as indeed the s 223 definition of native title allows.

187    The evidence of Professor Sutton in this case, from an anthropological view at least, supports this view. Professor Sutton, in his initial report, observed that there may be cases of “one family, or even just one person, being left standing as the legitimate holders of traditional country”.

188    Whether or not all rights and interests possessed are exercised in any case would be irrelevant, as the decision of the plurality in Yorta Yorta makes it plain that it is the “possession”, not the exercise, of rights that is important for the purposes of the s 223 definition of native title.

189    The question of substance that arises in the Bidjara people’s appeal and in the Brown River people’s appeal is whether the primary judge, in effect, failed to consider whether, despite the loss, disuse of or abandonment of certain laws and customs since sovereignty, the claimants nonetheless maintained a traditional normative system under which they were possessed of rights and interests today.

190    When one turns from questions of legal principle in relation to what needs to be proved for a court to make a determination that native title exists today, to the process of judicial assessment and exercise of judgment about these matters, the evidence led and the quality of that evidence becomes critical. Understanding, construing and appreciating the relevance of particular pieces of evidence, and how the evidence of claimants all fits together, becomes of primary importance.

191    For an appeal court it is typically difficult to engage in such a process of assessment and exercise of judgement when it has not, like the primary judge, heard the evidence and seen the witnesses. It can be difficult for an appeal court to evaluate the significance of evidence given. The primary judge has an undeniable advantage in this regard and it cannot and should not easily or quickly be disregarded. The authorities support this view. See Commonwealth of Australia v Yarmirr (1999) 101 FCR 171 at [637]-[640]; [1999] FCA 1668 (Merkel J); Western Australia v Ward (2000) 99 FCR 316 at [222]; [2000] FCA 191 (Beaumont and von Doussa JJ); Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 at [202]-[205]; [2001] FCA 45 (Branson and Katz JJ); Yorta Yorta at [63] (Gleeson CJ, Gummow and Hayne JJ); Moses at [308]-[309].

192    In these two appeals, the “lay witnesses” put on affidavits or statements in writing as to their evidence in chief. Sometimes, as here in the case of the Brown River people, the primary judge may not find such written evidence particularly helpful. This will often be so where a witness is not literate, or well-educated, or used to expressing themselves in writing, and the written account of their evidence may be doubted as to its completeness, reliability, or even authenticity. There may be cases, as the judge intimated in this case, where statements of evidence in chief which use common expressions raise the question whether the expressions are those of the witnesses or some other person who has prepared the statements.

193    Sometimes, not until further explored, either in chief or cross-examination, or in reply, will the significance and weight to be accorded to a witness’s evidence become clearer. If the primary judge has been engaged in such a process, the primary judge obviously has an advantage over the appeal judge, who has only the transcript of what was said in the Court below from which to assess the quality and significance of the evidence and so the weight to be accorded it. All sorts of impressions may be drawn from a witness’ written word, when different impressions will almost inevitably be drawn from also seeing and hearing the witness talk about the matters the subject of their written word. That is why the trial process is so important and a trial judge’s task so exacting.

194    In this case, by way of further example, the primary judge received evidence from witnesses in both appeals that related to similar topics – concerned with Dreaming stories to do with the Mundagatta and the Goori Goori bird. Her Honour considered that some of this evidence at least had been gained from book learning and not from the passing on by word of mouth from elders in the community who had gained that knowledge in a similar way – thus suggesting it was not “traditional” knowledge. For example, a book by Graham Walsh was mentioned by Professor Sutton as likely to have been the source of some of that knowledge. The primary judge, aware of such information, was best able to assess the quality of evidence by particular witnesses in order to ascribe to it appropriate weight.

195    In some situations, however, appeal courts are not so disadvantaged. Where the primary judge has had to rely on and construe documentary evidence, the appeal court may be at no particular disadvantage to the primary judge and may not need to defer to the primary judge as to the construction to be given to that same evidence. See for example, Sampi at [9].

196    But even then the position may not be so clear cut. The evaluation of written materials may well be influenced by the understanding of the other, lay evidence that a primary judge has considered.

197    In this case, in relation to the Bidjara, the evidence of Uncle Rusty, his brother Ritchie Fraser, Betty Saylor and Bob Mailman given at the 2001 preservation of evidence hearing before Ryan J was adduced at the trial before the primary judge. In some ways the primary judge is in no better position than the judges on this appeal to read and construe that evidence. However, it may also be said that her Honour, having heard the lay witnesses called by the Bidjara, was in the best position to contextualise that preserved evidence and to properly construe it.

198    These types of evidentiary and fact finding considerations are mentioned at the outset because the primary judge plainly formed the view that the lay witnesses for the claimants did not produce enough evidence of continuity to establish the maintenance of a traditional normative system today.

199    Her Honour was unable, for example, on the Bidjara claim, to find that the evidence of Uncle Rusty and others from 2001 provided the bridge from the past to the present that enabled the Court to find that a traditional normative system was maintained by the Bidjara today.

200    An important part of her Honour’s reasoning in this regard was that the “tenure system” that her Honour found existed at sovereignty had been “lost” by 2001, at the time that Uncle Rusty and others gave evidence.

201    The primary judge made a similar finding about the loss of the tenure rule in relation to the Brown River people’s evidence.

202    The loss of such an important rule, and the nature of the rule said to have replaced it, as discussed below, plainly influenced the primary judge in finding that whatever contemporary systems govern Bidjara society and Brown River/Karingbal society today, they are not rooted in the traditional normative system. These matters are dealt with in more detail below.

Consideration

203    About Uncle Rusty’s evidence, at [41], the primary judge observed as follows:

Uncle Rusty’s evidence discloses his deep knowledge of Bidjara country. The difference in detail between his knowledge of the boundaries of Bidjara country and that of the other Bidjara people who gave evidence in 2001, Bob Mailman, Betty Saylor, and Ritchie Fraser, is obvious. When comparing the weight to be given to Uncle Rusty’s oral evidence given at various locations throughout Bidjara country compared to the evidence in his written statement and the inferences which should be drawn from his involvement in drawing up the boundaries of the Bidjara No 3 claim, it should be apparent that his oral evidence is far more likely to be reliable for many reasons. As noted, Uncle Rusty’s written statement was read to him. While he signed off on the statement as accurate he corrected it in his oral evidence by saying that Injune is not Bidjara country. The fact that Uncle Rusty could not read or write (as he said in his oral evidence) would have made it very difficult for him to use a map to draw up the boundaries of Bidjara country. By contrast, while on Bidjara country he could describe by direction, in a great level of detail, places that link one to the other, all generally moving from the western part of Bidjara country (Wyandra and Barcaldine) towards the eastern part of Bidjara country (up to the Carnarvons and Springsure). Uncle Rusty’s repeated descriptions of Bidjara country as extending ‘up to’ the Carnarvons and Springsure, in the context of his evidence as a whole, can mean only that Uncle Rusty was saying that these places are the eastern-most extent of Bidjara country. Carnarvon Gorge and Takkarakka, which he referred to expressly as Bidjara country, are generally within the scope of this eastern-most scope of Bidjara country. However, they are located in the western part of the overlap area. The overlap area extends well to the east of Carnarvon Gorge and Takkarakka across the whole of the Arcadia Valley into Expedition National Park, east beyond Lake Nuga Nuga, east beyond the Kongabula Range and the Comet River and Clematis Creek, and to Rolleston. Uncle Rusty’s evidence cannot be understood on a rational basis as suggesting that these areas are Bidjara country. To the contrary, his words about Bidjara country going up to the Carnarvons and up to Springsure, in the context of moving from west to east, and not extending to or even close to Injune, confirms that Bidjara country as identified by Uncle Rusty does not extend as far east as Injune, the Arcadia Valley, Lake Nuga Nuga, or Rolleston. Bidjara country does extend as far east as the Maranoa River, the Carnarvon Gorge, Takkarakka, and the area which might be described as the western part of the Carnarvon Range.

(Emphasis added.)

204    At [32] and following, the judge also made reference to what Bob Mailman had said in evidence in 2001. This was particularly about country but it also touched on the question of “culture”. Her Honour observed:

32 This oral evidence must be weighed up when considering the statement that Mr Mailman provided in March 2001, which forms part of the preserved evidence. Mr Mailman said that said he was descended from Lucy Long and Charles Mailman on his father’s side and Nellie Combo and Bill Geebung on his mother’s side. He said they were all born and lived in Bidjara country. According to the records, Nellie Combo was born near Augathella and William Geebung was born near Springsure at Orion Downs and they lived mostly near Babbiloora Station, whereas Lucy Long was associated with the Upper Warrego area. These areas are all west of the overlap area on land which Uncle Rusty identified as Bidjara country.

33 Mr Mailman also said the largest artwork he had done was a painting which depicts the Mandagharra [Mundagatta] (the rainbow serpent) and its journey across Bidjara country. The journey starts at the bottom right hand corner representing the ‘16 mile and Carnarvon and the Pump hole near the head of the Warrego’. The head of the Warrego is in the Great Dividing Range (which I infer Mr Mailman referred to as ‘Carnarvon’), well to the west of Carnarvon Gorge and the overlap area. At the top left hand corner is the ‘water well at the Babbiloora mission’. Babbiloora is yet further to the west again. In the bottom left hand corner is a representation of the Barngo Lagoon. Barngo is located between Babbiloora and the head of the Warrego (that is, north-east of Babbiloora but west of the head of the Warrego). Across the middle of the canvas is the Mandagharra.

34 Mr Mailman said that there is a Bidjara legend about the Mandagharra that it had lived in Barngo lagoon but left it ‘when all of the blackfellas were killed, died, or moved off their land …in 1944 or 1945’. The water then all dried up in the lagoon. In the top right hand corner of the canvas is a representation of Lake Nuga Nuga near Springsure. This ‘is where the Mandagharra went and continues to watch the Bidjara country’. There are ‘small white dots around the painting representing the slithery movement of Mandagharra away from the area’. ‘Mandagharra’s tracks across the earth heading northeast away from Barngo Lagoon in the direction of Springsure can be seen in the landscape today’. There are also small black dots on the painting that represent the footprints of the Bidjara people.

35 Contrary to the submission that was put, I do not see this description as suggesting that Lake Nuga Nuga is part of Bidjara country. In fact, I consider that Mr Mailman was explaining that Lake Nuga Nuga was not Bidjara country. As I understand the legend he is describing, it is that the Mandagharra lived in Barngo Lagoon which is Bidjara country until the Aboriginal people were driven off their land. The Mandagharra then left Barngo Lagoon which had dried up and slithered to the north-east to Lake Nuga Nuga so the Mandagharra could continue to look over Bidjara country (that is, the country to the west of Lake Nuga Nuga). This is consistent with not only Mr Mailman’s description of Bidjara country (Babbiloora, Barngo Lagoon, the head of the Warrego) but Uncle Rusty’s description of Bidjara country running from the west up to but no further than the Carnarvons.

205    The judge further observed that the preserved evidence produced “valuable evidence” about Bidjara culture and at [43]-[65] of her reasons for judgment set out the substance of this evidence.

206    Her Honour then addressed the evidence of the “lay witnesses”, being members of the Bidjara claimant group, at the trial.

207    As to Rodney Mailman, the judge noted:

(1)    He was born in 1953. His father was Bidjara and spoke that language, as did his father’s brothers and sisters.

(2)    His father taught him traditional ways useful for getting food and medicine and he has hunted for bush tucker all his life.

(3)    His father told him about areas that are Bidjara country.

(4)    His father talked about Mundagatta, the rainbow serpent, which moved between waterholes including Lake Nuga Nuga and the stars, and the Goori Goori bird. He said the previous generation had “exceptional” knowledge of their lands and traditions.

(5)    He said that Bidjara mainly married within their own tribe, but he had read that they should not; he was not sure of the rule because his parents had been dead a long time.

(6)    He attended the 2006 meeting when “Bidjara elders” decided their claim.

(7)    He does cultural heritage clearance work in the overlap area and described having the feeling of communicating with spirits there.

(8)    As far as he knew, Gerry and Maxy Miller were Bidjara and spoke Bidjara, and he also knew Kevin Albury, who had told Mr Mailman’s older brother, David Mailman, that he (Kevin) was Bidjara and who spoke what Mr Mailman assumed to be Bidjara.

(9)    He did not know where any sites of Aboriginal heritage were in the overlap area until they were located while inspecting the land on behalf of mining companies and did not know much about the land until he carried out this work.

(10)    He said Uncle Rusty knew a lot about the country, a lot of stations and he was a good leader to a lot of the younger people and sang Aboriginal songs in Bidjara language.

208    As to John Leslie, the judge noted:

(1)    He too was born in 1953.

(2)    He was later employed as a community worker by the Department of Aboriginal Affairs and became director of a company which acted for traditional owners in their relations with mining companies.

(3)    He grew up with Bidjara people and one of them, Henry Gadd, lived with his family.

(4)    He understood that certain areas belong to the Bidjara, including what Henry Gadd had told him.

209    As to Arwa Waterton, the judge noted:

(1)    She is a Bidjara woman through her mother, whose father was a Bidjara man.

(2)    She said traditional Bidjara burials involve wrapping the bodies in bark.

(3)    She found out about her family tree from government documents so she could tell her children and grandchildren about their descent.

(4)    Her eldest sister’s uncle or grandfather was an Albury and her father was Amby Albury. They were sisters through her mother. Her eldest sister was now deceased.

(5)    On some government papers the Alburys are identified as Bidjara but she could not recall what those papers were.

210    As to Reginald Little, the judge noted:

(1)    His wife, Rhonda Fraser, was Bidjara.

(2)    He was previously employed by the Goolburri Land Council as a field officer, in which position he gathered statements and recordings from Bidjara elders. He did most of his work with Uncle Len Mailman and Uncle Rusty. Uncle Fred Lawton told him about the “V” sign of the Bidjara. He learnt about places that were considered Bidjara.

(3)    People such as Uncle Len, Uncle Fred and Doreen Fraser talked about boundaries amongst themselves.

(4)    He described some of the places he had been through with Uncle Len and Uncle Rusty, with Ritchie Fraser and a few other elders including Bob Mailman and with Floyd Robinson.

211    As to Sheryl Lawton, the judge noted:

(1)    She is Bidjara through her father, Fred Lawton.

(2)    She described what she had been told was Bidjara country. Her family would go tracking and hunt every day for bush tucker. They would boil up gumbi gumbi for medicine.

(3)    She used to go to Mount Moffatt a lot and tried to get back on her country as often as she could. She had taken young Bidjara people there to show them sites. She had been to Carnarvon Gorge as well with Pat Fraser.

(4)    Uncle Fred was buried near Springsure.

(5)    Her elders all spoke Bidjara but as young people they did not learn how to speak the language, but understood bits of it. They were now trying to learn more of it.

(6)    Her elders told her the story of the Goori Goori bird and the hairy men which frightened them as children. They were also told about the Mundagatta when the river was flowing. But generally children were not allowed to be with the adults who spoke amongst themselves.

(7)    She went to the Carnarvons as a teenager and her father told her it was Bidjara country. Her daughters had also been there to trace their ancestry.

(8)    She said that she still believed that the hairy men are out there.

(9)    While she had read Graham Walsh’s book she had also heard the stories about the Goori Goori bird.

212    As to Floyd Robinson, the judge noted:

(1)    He referred to many locations that he said were Bidjara traditional country, including many outside (to the west of) the overlap area.

(2)    He is Bidjara through his father, who is Bidjara through his mother, Nell Fraser.

(3)    He first went to the Carnarvon Gorge National Park in 1981 when he was eight years of age. He also went with Uncle Rusty and Uncle Dusty Fraser and his grandmother, Nell Fraser. They stayed at Takkarakka and met Graham Walsh and visited lots of sites with him. Mr Walsh and Mr Robinson’s family wanted to set up a keeping place for Bidjara artefacts and burials at Carnarvon Gorge.

(4)    As a child he was told about the junjadis, the little hairy men, by Uncle Rusty and Aunty Pat Fraser.

(5)    He was also told about the Mundagatta who would get you if you went swimming by yourself, including by his grandmother who said that the Mundagatta and junjadis would not hurt him as he was Bidjara.

(6)    He became a cultural officer for the Charleville Bidjara housing company and dealt with many people about cultural issues in that capacity.

(7)    He returned to Carnarvon Gorge in 1999 because of issues with vandalism and sewage. He took Uncle Rusty and other elders back there and Graham Walsh filmed them talking. They talked about Lake Wangan Wangan, the Bidjara description for Lake Nuga Nuga, the Hornet Bank massacre, Goorldathalla – the place of the wedge tailed eagle, Bandanna station, King Chooky, who saw the first aeroplane fly over the Carnarvons and a song Uncle Rusty had made up about it, and the Mundagatta who created the Carnarvon Creek and all the watercourses on Bidjara country. He helped Uncle Rusty and his cousin Lionel to arrange Bidjara dancing at Carnarvon Gorge National Park where they have danced now many times.

(8)    He spent a lot of time with Uncle Rusty and Bob Mailman and learnt from them, including stories about how the galah became pink, about the Mundagatta, waterholes and Bidjara country. Uncle Rusty taught him about acknowledging ancestors on certain land, that birds were Bidjara ancestors, the spirits on country, the Bidjara “V” and star signs, and the six finger and toe carvings, as well as bush medicines and hunting. Uncle Rusty also told him about proper Bidjara marriage between different skins, possum and red kangaroo, and also that a person cannot marry a person of the same skin or eat the meat of their skin.

(9)    Mr Robinson also gave evidence about the curlew and the Goori Goori birds, considered “death birds”; hunting budburra; artwork near Carnarvon Gorge; that “before we were people we were bird”, how they had come there with the rainbow serpent from the stars; how the Carnarvons relate to Dreaming story ceremonies.

(10)    He was not fluent in Bidjara but knew a lot of individual words.

(11)    He described the extent of Bidjara country, particularly on the basis of what Uncle Rusty had told him.

(12)    He said that people got different parts of country which “relate to different mobs, different bigguns, totems and things like that, or different families associated with different camps here and there, birthplaces, burial places, ceremony places”. Uncle Rusty, Uncle Bob and his grandmother and father had all told him this.

213    As to Keelen Mailman, the judge noted:

(1)    She was born in 1966. Her mother was Betty Mailman, sister of Bob Mailman.

(2)    She manages Mount Tabor Station for the Bidjara people. Her grandchildren live with her and she teaches them Bidjara language, culture and traditions.

(3)    Her mother taught her Bidjara women’s business and she is fairly fluent in Bidjara which she learnt from her mother.

(4)    Her mother told her Carnarvon Gorge was Bidjara country and was a special place rich in meat, water, fruits and medicines and was also a burial place for mummified bodies.

(5)    Her mother told her Carnarvon Gorge was the home of the junjadis or hairy men who look after the Gorge.

(6)    Uncle Bob Mailman also told her Carnarvon Gorge was Bidjara country, as was Springsure where her grandfather William Geebung was born. His father Dan Mailman rode from Augathella to Springsure to fight someone who said Springsure was their country.

(7)    She was also told by Aunty Janeo Mailman about the extent of Bidjara country and gave evidence about Aunty Janeo Mailman resisting mining, Uncle Frank Geebung, what Uncle Fred Lawton spoke about in terms of connection with the Carnarvon Ranges and other places.

(8)    She said Uncle Norman told her about the Bombarra totem (for the brown snake) which was the Geebung totem. She was also told by Uncle Norman that they needed to fight for their country and she heard about the stories of the Mundagatta and Goori Goori bird.

(9)    She said Uncle Rusty lived with her at Mount Tabor for a few years before he died. She said Uncle Rusty was active in Bidjara culture and spoke the language fluently and told her of the time of her people, where they came from, the families that were related, sang Bidjara songs and conducted dancing.

(10)    She was descended from Bidjara ancestor Nellie Combo.

(11)    She had been involved in recovering the bodies of Bidjara people from the Queensland Museum for reburial on Bidjara country.

(12)    She said that there was men’s business and women’s business. She emphasised the importance of language to her people. She also got to learn from her mother about bush fruits and how to live off the land, including about gumby gumby from Uncle Rusty.

(13)    She “calls out” to ancestors on country, as she was taught to do.

(14)    Uncle Rusty was strong and passionate about teaching the younger generations Bidjara dance and song.

(15)    Her own first visit to Carnarvon Gorge was during the hearing.

(16)    She explained that she knows more language and how to live off the land than, for example, her aunty who is 61 years of age “because of the things that happened back then. They were told not to. It was just a privilege for me to get to learn to live off the land and track our foods and learn all our stuff, and our language”. She also said that she called elders such as her mum’s first cousin, “Aunty”. She said that was by way of “respect”.

(17)    She said also that, to her, all Bidjara people can hunt, camp and move around on Bidjara country without distinction, even though the old people might have had different camps. She said there were no subclans of Bidjara. She considered that if you were Bidjara, you were Bidjara.

214    As to Raymond Robinson, the judge noted:

(1)    He was born in Brisbane in 1946 and was Bidjara through his mother, Nell Robinson (formerly Fraser).

(2)    His mother’s father was John Fraser and her mother was Ada Lang, both Bidjara. Uncle Rusty was his mother’s younger brother.

(3)    He says that from when he was about one year of age he grew up at Charleville and was taught Bidjara ways by his mother and aunties and uncles.

(4)    He has been involved in Aboriginal organisations, both Bidjara and general, for many years in different capacities.

(5)    He gave evidence about how Lake Nuga Nuga got its name, which he learnt from Uncle Dusty Fraser.

(6)    He also gave evidence about the extent of Bidjara country.

(7)    He said Kevin Albury’s mother was a woman called Maggie Shepherd who was Bidjara.

(8)    He said he also knew Amby Albury and Sam Albury from around Charleville and Augathella, who both spoke Bidjara language and were, as far as he knew, both Bidjara people and he used to call both of them “Uncle”.

(9)    He gave evidence about the Mundagatta, the rainbow serpent, that his mother used to mention.

(10)    His uncles told him about the Bidjara “V” sign, the star and the six toes which are across Bidjara country including at Carnarvon Gorge.

(11)    He first became involved in protecting the Carnarvons in the 1980s when Bidjara remains were removed and displayed in Roma. His involvement had continued since then.

(12)    He said the Bidjara No 3 claim had been drawn up by Uncle Rusty, Pat Fraser, Joe Lawton and Bernie Mailman in 1996 and he was not involved in that meeting. However, he was involved after that in a meeting in Toowoomba at the Goolburri Land Council office which Bernie Mailman, Joe Lawton, Patricia Fraser and Uncle Rusty attended which was organised for all traditional owners.

(13)    He noted that Bill Geebung Senior worked on a number of properties in the overlap area and Uncle Fred Lawton when he was between 80 and 86 lived in Injune so he could go and visit country, like Wallaroo and Carnarvon Gorge.

(14)    He said that Amy Miller said she was Wadja, which in Bidjara language means to go. He said or inferred that Jessie Turner, Amy Miller and Fred Taten were Bidjara. He also considered Jemima was Bidjara.

215    As to Brendan Wyman, the judge noted:

(1)    He was Bidjara on both his mother’s and father’s side being descended from the Frasers, the Lawtons and the Geebungs, his apical ancestor being Nellie Combo. He was born in 1966.

(2)    He described Bidjara country.

(3)    He had been taught his people’s ways since he was born when he was rubbed with budburra fat which was a tradition for his people. He was taught how to hunt budburra and prepare it for cooking and he has passed that knowledge on to his son, nephews and others.

(4)    When working for the Aboriginal Legal Aid Office in Charleville, a box turned up with a stone in it, which they showed to Uncle Rusty who said it belonged to Carnarvon Gorge. He and Uncle Stan Lawton arranged for the stone to be returned to Graham Walsh at Carnarvon Gorge. He said the Gorge was of great significance to Bidjara people with artwork and places of significance to women and areas where only women should attend. Uncle Rusty had told him the Gorge contained women’s places but did not give him any details.

(5)    His grandmother told him stories about the Warrego River and the Mundagatta; as well as a big scar tree that was still there. He also was taught how to catch yabbies and hunt kangaroos.

(6)    He also described how if you are on another man’s country, you cannot go and hunt there and you must let him know if you want to hunt. You also needed to share what you took.

(7)    He said the Bidjara “V” sign was all over Bidjara country.

(8)    Of his family relations he explained that his father’s brothers and sisters are his uncles and aunts on his mother’s side and their siblings are his brothers and sisters on each side and added that you cannot marry within the family.

(9)    He said his people believed that they come from the stars and that’s how they all started off. His grandmother described a willy wagtail as a messenger bird. He also described the Goori Goori bird as a ghost bird. He said his totem was the red kangaroo and on his grandfather’s side they are carpet snake.

(10)    He said he understood enough Bidjara language to know what was being said and taught others what he knew and taught respect for elders.

(11)    He said he was never told about neighbouring tribes when he was growing up but he knew that to the south-west there were various groups and to the south another.

(12)    He described Uncle Rusty as “more or less” the last remaining man that knew “that stuff” – tribal knowledge. He said after Uncle Rusty he had to get back home to keep his knowledge going, to reaffirm it and to reiterate stuff that he had been told and taught.

(13)    He did not believe that any Bidjara person had greater or special rights in any part of Bidjara country although he personally felt affiliated with Babbiloora where his uncles had worked, whereas the Geebungs and Gadds were more associated with Springsure.

216    As to Patricia Fraser, the judge noted:

(1)    She was born in 1963, her father was Archie (Dusty) Fraser, who was a brother of Uncle Rusty Fraser.

(2)    Her grandfather, Jack Fraser, was born at Babbiloora in 1887 and was very strict and knowledgeable about Bidjara laws and customs. His traditional totem was the red kangaroo which he inherited from his mother. Her father was a stockman who worked on numerous stations.

(3)    While she did not learn the Bidjara language, her father always used Bidjara words to describe plants, animals and special places. He also taught her to track and find traditional food, although her brothers were taught a lot more than she was because she was not allowed to go hunting or to special places with her father. Her father would pass information on to her mother and her mother would teach her if certain customs required women’s business.

(4)    Her mother did not know about her traditional culture as she was removed when she was a little girl. She was a Mandandanji woman.

(5)    She said her father gave her her identity and connection to her traditional land.

(6)    She was told by her father and uncles through their stories that Carnarvon Gorge was a very significant place to the Bidjara people.

(7)    She said her father told her the story of the Mundagatta and how it created the Carnarvons. Her great aunt, Jessie Turner, also told her stories about why a certain bird can be heard screaming through the Carnarvon Gorge. When she was little on the stations her father also told her the story of the Goori Goori bird when they used to look up and see the Milky Way.

(8)    She visited Carnarvon Gorge in 1981 on the same trip as Floyd Robinson and felt a spiritual connection and could feel her Bidjara ancestors speaking to her. More recently she stayed with Keelen Mailman at Mount Tabor and did a tour of the Carnarvon area.

(9)    She described a meeting of people at the Land Council about the native title claim that the Bidjara were putting on.

(10)    At that point she had not heard of the Karingbal and did not hear about them until 2003. She had not heard of the Karingbal being a subclan of the Bidjara.

(11)    Her brother, Lionel Fraser, was involved in training the Bidjara dancers with Uncle Rusty.

(12)    Her father had worked in the overlap area, she says she knew it from when she was a child but since the NTA she had been involved in cultural surveys of the area as well. She had been to Carnarvon Gorge twice before the hearing.

(13)    She considered the work by Breen to be confused when he talked about Jessie Turner (formerly Fraser) being Wadjigu.

(14)    She gave evidence about Bidjara customs and laws including the cleaning of budburra; her grandfather Fraser who was red kangaroo; the skin having four totems; that part of the culture was being buried or wrapped in bark; her father would not tell the girls certain things but would inform her mother who would tell the girls; Aunty Jessie told her a story about the Gorge.

(15)    That so far as the impact of European settlement was concerned, indigenous people like the Bidjara changed, “they modified themselves”, to make sure that they continued connection. She said they were moved off country and there were strict rules on whether they could speak language or carry on traditions. But they were lucky because her father never left the country he grew up on and “we practised and lived it every day”. She explained that for all these reasons, the system of meats and skins was no longer followed.

(16)    She did not agree with the proposition that her father worked outside Bidjara country.

(17)    She knows Bidjara words but does not speak the language.

(18)    When she enters someone else’s country she speaks to the spirits and asks permission.

(19)    In respect of women’s places, she said they can be recognised by carvings on walls.

(20)    Like others, she believed that no particular Bidjara person spoke for parts of Bidjara country and each had rights in the whole.

217    As to Bob Mailman, who was deceased at the time of the hearing, although his statement went into evidence, the judge noted:

(1)    He was a Bidjara man who was 74 years of age when he made his statement on 21 February 2008, having been born in 1934 at Augathella.

(2)    His father was Dan Mailman and his mother was Cissy Geebung. His great grandmother was Liza (a contemporary of Hector Thompson and other apical ancestors). His grandfather on his father’s side was Charles Mailman, also known as Miller, and his grandmother was Lucy Long. On his mother’s side his grandparents were Nellie Combo and Bill Geebung.

(3)    His parents and grandparents were all born and lived in Bidjara country and were Bidjara people and he knew this because throughout his life he was told this by them.

(4)    Bidjara people have a deep respect for their elders.

(5)    He grew up speaking the Bidjara language fluently as they spoke it in their family. He taught Keelen Mailman the Bidjara language.

(6)    The rules about marriage have evolved over time. Originally people were divided into subgroups, however that has now evolved into “an interlocking system of family groups”. The rules as to marriage remain much the same as in the past. If there is any breach then it is dealt with by social ostracism. Some people have married wrongly but they subsequently indicate they believe they came from a different group so as not to appear to be in breach of Bidjara law.

(7)    In the Carnarvon Gorge there is a two finger sign painted on the walls which he was told by Uncle Fred Lawton was a Bidjara sign.

(8)    He has provided Bidjara language names for children, so that they can have an English as well as an indigenous name.

(9)    He has ability with Aboriginal art using ochre and traditional methods and depicts stories of the Bidjara people, including the story of Mandagmarra (Mundagatta) as told to him by his father and grandfather and as he taught his nieces and nephews.

218    As noted above, a number of experienced anthropologists gave expert testimony at trial. The appellants, including the Bidjara, now rely very much on opinions expressed by Professor Sutton, who was called by the State, in advancing their cases on appeal to the effect that relevant “continuities” were not accorded appropriate weight by the primary judge.

219    Professor Sutton provided an initial report and a supplementary report. The primary judge relied on a number of Professor Sutton’s opinions in dealing with contentious issues.

220    Dr Hutchings submitted an initial report and four supplementary reports dealing with the Brown River people’s claim as the “true Karingbal”. She concluded that, as descendants of the apical ancestors Albert Albury Senior, Maggie Suy See and Mick Freeman, they held native title in the overlap area and formed a distinct society with a continuing observation of traditional laws and customs. She considered that a competing claim by the descendants of Jemima, who was not Karingbal, could only refer to interests outside the overlap area. She suggested they may have been of Wadja identity. Her brief did not require her to comment on any Bidjara native title interests.

221    Dr Sackett prepared one report for the Karingbal who claimed descent from Jemima, which concluded there was an absence of evidence as to what tribe or language group traditionally occupied the overlap area.

222    Professor Langton, called by the Bidjara, provided a report (incorporating two earlier reports) in which she concluded there was sufficient material to support the view that Bidjara country extended into the overlap area and that the descendants of the Bidjara continued to look after their country in culturally appropriate ways and held traditional knowledge, especially of significant places in the overlap area. She considered that the Brown River claimants were in fact Bidjara people, and that Jemima was probably a Bidjara ancestor. She also considered the evidence indicated Karingbal was not a traditional language of the overlap area, but rather had migrated from its original country elsewhere, in the Mackenzie River area.

223    As to Professor Sutton’s initial report, as supplemented by his second report provided after the direct evidence of claimants had been received, the primary judge noted, at [367], that his opinion was also that the Karingbal people forming the Brown River claim group did not constitute a distinct society but rather were a subgroup of a wider society. Nevertheless their identity and location had persisted since colonial times. Professor Sutton also concluded, as discussed further below, that the Brown River people no longer practiced most of the sovereignty (or classical) cultural traditions which they claimed as theirs.

224    The judge noted that Professor Sutton suggested that, while Jemima had strong personal connections to the overlap area, it was unclear what her language and country was, and her daughter Amy Miller’s descendants were most likely Wadja people.

225    Her Honour noted Professor Sutton was satisfied that Bidjara country included the upper Warrego River system as far up as Carnarvon Gorge at sovereignty, but not the Brown River catchment or Planet Downs pastoral station; and that he considered that Bidjara people continued to have a close connection to Carnarvon Gorge; but that Bidjara country did not extend further to the east.

226    Her Honour, at [369]-[370], regarded the joint report of the anthropologists, prepared before trial following a conference between them, and noted what they said about the Bidjara:

369 All anthropologists agreed with Professor Sutton’s conclusion that the Bidjara traditionally identified with the Warrego River system as far up as the south western edge of Carnarvon Gorge and inside the Gorge, which is not in the Warrego River system, and with what is now Carnarvon National Park. Doctors Sackett and Hutchings agreed with Professor Sutton that the Bidjara identified with a large number of other places further to the west, including those identified in Rusty Fraser’s evidence. Professor Langton differed on this last point, finding the evidence of other witnesses persuasive about the extension of Bidjara country across the overlap area and to its east.

370 Professor Langton considered that Bidjara songs, dances and stories have continued since sovereignty and that any difference in practices through the generations is explicable and does not amount to a severance of continuity. She acknowledged there had been revitalisation of some traditions, but noted that this did not imply recent invention. Rather, revitalisation is a legitimate means of maintaining Bidjara culture within a contemporary setting. Professor Sutton agreed with this latter point, but required supporting evidence on the other points. Dr Hutchings also required supporting evidence, while Dr Sackett gave qualified agreement with some assertions of Professor Langton.

    (Emphasis added.)

227    As to society and culture at sovereignty, at [375], the judge outlined the substance of the anthropological opinions.

228    Her Honour then proceeded, at section 7.1.2 of her reasons, to deal with the topic of “Continuity from sovereignty”, which is contentious in this appeal by the Bidjara.

229    Her Honour considered the opinions of Professor Langton and Professor Sutton, at [377]-[388], and observed as follows:

377    Professor Langton considered that:

the Bidjara people really do know their cultural heritage despite the impact of settlement in the area, the impact of government decisions, the Aboriginal Protection Act, the removals…

378    Professor Sutton made the following general observation:

I think all of the groups represented here come to the court with a mixture of continuities with their ancient past, radical discontinuities with that past, transformations of things that were there and are still here but are changed in form or practice, and thirdly, what you might call restorative attempts in relation to the culture revitalisation…

379 Professor Sutton identified several absolute continuities from pre-sovereignty Aboriginal society apparent in all claimant groups in these terms:

•    One’s primary entry into a land holding group remains that of descent from an ancestor. Every infant is born into some group or another …competence, presence, knowledge, responsibility are not about the entry point into the group but the rise to a strong position in the group.

•    The interest in land is always communal and not individual, it’s shared. And the way it has been shared has changed through time in my view, but the basic principle of a communal entitlement to the estate remains unquestioned.

•    The land is not considered to be a chattel, you can’t bequeath it in a will to your children, you can’t exchange it, you can’t sign up and pay your dues and become an owner. In other words, the estate itself is regarded as inalienable, it’s not a market object.

•    All assert a spirit connection with the country, principally to their own ancestors and their old people.

•    They believe they have a responsibility to protect the tombs of the old people within the area that is the subject of this matter.

•    All assert an incest taboo of some sort.

380    Professor Sutton also identified several continuities which had been transformed to greater or lesser extents from pre-sovereignty Aboriginal society apparent in all claimant groups in these terms:

•    All groups have an emphasis on extended family, that is a distinctively ancient thing. They have an emphasis on valuing kinship – kin-relatedness as a basic positive. An example of this is the development of the Auntie and Uncle titles which developed and evolved out of the old values, but it evolved in a modern situation where people are often – not actually sure how they’re related to someone or they haven’t been brought up to think of themselves as being specifically related, but represent a continuation of the shared norm of valuing both kinship and seniority.

•    Seniority is another domain and we’ve heard evidence of the shared value of respect for elders.

•    Some emphasis on super natural domains, which again is a continuity, [whilst noting that the ‘eungies’ and other ‘little hairy men’ referred to by witnesses] are at one end of the spectrum in terms of the power and profundity of spiritual beings in the ancient Aboriginal systems… the dreamings or stories, or histories as they’re called in far western Queensland, they’re not just going to frighten you at night or maybe do something good for you when you’re sick, they actually created the world. That’s the big difference, and they formed the rivers and the valleys and so on, and the story of a snake moving along the river system being specifically heavily located in a permanent water body, that’s all classical ancient Aboriginal thinking… It’s unsurprising that it’s here. [Specifically], there has been continuity of transmission of the rainbow snake entity and knowledge and respect for it and awe of it, with some break in the way the language was learned.

381    Discontinuities are also apparent, as Professor Sutton described:

•    There is no evidence of those particular two structures [kin superstructures of skins and moieties] still operating as norms for the selection of marriage parties, although they are part of the cultural memory.

•    Another area where there has been a lot of loss, and this applies to all groups, is in the ability to name places in the country in language … . But for there to be such a loss of place names has to be put against whether or not there has been a loss of the meaning of input to those places; a separate issue.

…

384    Professor Sutton also identified four types of social histories of Aboriginal people in this region since 1860. As he put it:

•    One is a strongly pastoral based experience and some families have maintained that up until the present…

•    Others were incarcerated into larger communities under the Act – and Woorabinda is the key one here. So those people’s experience of growing up and living together is very much more centralised, very much in terms of mixed family groups because there are hundreds of people instead of just six or 10 on the station… But their movements are very restricted. Moving between communities was controlled…

•    Thirdly, there’s the tenant camps – in this case, they’ve been referred to as yambas or yumbas. These were the town reserves. Those people that were, in a sense, midway between the station people and the mission people and often moved between the two. Sometimes they were seen as a pool of labour and people would come and pick up labour just for the day, sometimes.

•    Cities, Rockhampton and Brisbane particularly.

385    Professor Sutton observed that one thing missing from the evidentiary landscape in this case was any systematic study of the norms of kin relationships which made it difficult to assess the strength of this continuity or discontinuity. Only Dianne Evans gave evidence demonstrating that she ‘retains an ancient classificatory kinship system in her mind’ whereas the balance of the evidence about this was very patchy, although the weight of it suggested that the system had not continued.

386    Professor Sutton also made this point (Professor Langton having made observations to similar effect):

[T]he identity of Bidjara seems to have persisted and Gungabula, which was still remembered obviously in the 1960s and seventies, and [Nguri] doesn’t seem to have been quite as strongly remembered. They seem to have both been, if you like, submerged in a greater Bidjaraness. And that kind of process has occurred all over Australia and I could cite a dozen cases of something similar and it’s often called – well, I call it conjoint succession. In other words – particularly when there’s radical depopulation, which has occurred virtually everywhere, the surviving people needed to – were more or less forced to get together…

387    Professor Sutton stressed that incorporation of other groups, in this case the Nguri and the Gungabula into Bidjara, had to be voluntary as ‘annexation of other people’s country is utterly contrary to Aboriginal law’.

388    Professor Langton stressed that over the last 100 or so years the Bidjara ‘have remained a very strong group’ and acted to protect the cultural heritage sites they claim as theirs and to pass on traditional knowledge.

    (Emphasis added.)

230    The primary judge, at [390], observed that, other than Professor Langton, the anthropologists considered the uniformity of the claimed rights and interests of all Bidjara people to all Bidjara country unusual, as most traditional Aboriginal societies were marked by notions of subareas in which particular groups had special rights and interests (for example, if a person is born in a particular part of their country). Her Honour noted, however, the evidence of Professor Sutton that he knew of distinct languages which have only one estate assigned to them and so, in principle, it is possible for there to be such an arrangement. He considered that in this area, however, one would normally expect there to be a series of patrilineal clan estates. He also considered that internal differentiation in a number of areas collapsed due to population collapse and external impacts, and those groups maintain those areas as a single entity with no internal differentiation. Her Honour noted that Professor Sutton concluded, on this topic:

So I think it’s an expectable reaction to (a) population decimation, (b) cultural change, etcetera, that you do – you can end up with a single language area with no internal subdivisions, other than family history associations with particular parts of it.

231    In section 7.1.3, the primary judge also had close regard to what the experts said about language, including that it has important spiritual and cultural implications, but that under the impact of colonisation many languages were wiped out and replaced by one, surviving language which had spread throughout a region. Thus, subsequent generations might speak a language which is different from their country identities.

232    Her Honour noted, at [398], that when asked whether continuity of language was critical to the continuation of a group holding traditional laws and customs in common, Professor Sutton agreed that such continuity was present for the Bidjara, but not for the Karingbal. Her Honour noted, in that regard, that Professor Sutton stated that, in one case, the evidence of continuity of a normative practice is there, and in the other it is not, but that he also added:

They’re not normative practices to do with things like the passing of rights and interests to the next generation … nor about how does one acquire the authority to speak for the country.

233    Professor Sutton added, her Honour noted, that where language has continued, he saw it as a behavioural reflection that he would regard as a very typical, classical view, which is that one’s possession of language means also one’s possession of the “sacred estate” that comes with the language. So, he said, it is not just a matter of continuity of secular culture. Her Honour noted, at [399], Professor Sutton’s evidence that language is a “sacred endowment” and the reason why, in the Aboriginal world generally, as he understood it, one cannot take another person’s country is that it is actually about supplanting the spiritual identity of others.

234    Her Honour also noted, on this particular topic, that Dr Sackett explained that one sees the reduction in the knowledge of language but the maintenance of an identity and relationship to that language name, which becomes the “tribal” name, in many instances. He did not see that reduction “as fatal to native title”.

235    Her Honour also recorded that Dr Hutchings agreed with Dr Sackett and observed that the emphasis in the evidence on language had been disproportionate to its importance.

236    In dealing with “Some other issues”, at section 15 of her reasons, the judge referred directly to the question of language. As to the Bidjara language, her Honour noted that it continues to exist both in a form transmitted orally by parent to child (for example, Keelen Mailman learnt from her mother and is a relatively fluent speaker) and in a form which Gavan Breen documents in his linguistic work. Her Honour noted that many of the Bidjara have used Breen’s work to acquire some Bidjara language, mostly words and simple phrases.

237    The judge, having regard to the evidence, dismissed the notion advanced by Mr Robinson for the Bidjara that the fact that a person might have spoken Bidjara means that they must have been Bidjara. By way of example, her Honour observed that Kevin Albury spoke Bidjara, however no contemporaneous record suggested he ever considered himself to be Bidjara. Indeed, he considered himself to be Karingbal.

238    Her Honour, having regard to the evidence, also dismissed the notion that where a person was born was also determinative of their status as belonging to one group or another. In the case of Mick Freeman, for example, her Honour rejected the proposition that because he was born outside the overlap area, in another place, he could not be Karingbal.

239    Her Honour then said that the first key inquiry in the proceeding was as to what might reasonably be inferred to have been the normative system of law and custom which applied in the overlap area at sovereignty.

240    In that regard, at [506], on the basis of the anthropological evidence led, the judge accepted that the various groups in the region, at sovereignty, including the Bidjara and the Karingbal, were subject to a normative system of traditional laws and customs that included:

    a four section class system;

    exogamous marriage between two marrying classes or moieties;

    a combination of diverse totems associated with these marriage classes that were inherited (although it was unclear on the evidence whether this occurred through the mother, father or both);

    transmission of rights and interests in language and country inherited through descent (although it was unclear on the evidence whether this occurred through the mother, father or both);

    totemic beliefs;

    punishments and reprisals;

    trade with other groups;

    ceremonial meetings with other groups;

    male initiation practices;

    seasonal hunting practices;

    mourning practices including smoking ceremonies and the use of mud daubing and ritual cutting to indicate a period of mourning;

    increase rituals;

    female birthing practices;

    complex rituals associated with death and burial (burial caves, burial cylinders);

    right to be buried on country; and

    creation stories/mythologies.