FEDERAL COURT OF AUSTRALIA

Wallace on behalf of the Boonthamurra People v State of Queensland

[2014] FCA 901

THE COURT ORDERS THAT:

1.    Geoffrey Booth and Dennis Fisher cease to be a party to the proceeding.

2.    Robert Burns cease to be a party to the proceeding.

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

REASONS FOR JUDGMENT

1    This application, commenced in 2006, is made by Mark Wallace and Barbara Olson (together, the applicant) on behalf of a native title claim group described as the Boonthamurra People. By the application, and by the amended application of 26 August 2009, the Boonthamurra People are described as the biological descendants of 24 named persons. The named apical ancestors do not include those persons who are the apical ancestors of two of the respondent groups to the application, and who are asserted to be apical ancestors of the claim group.

2    Those two groups are known as the Booth/Fisher families, and as the McCarthy family. In short, each of those families say that they are members of the Boonthamurra People because their apical ancestors were Boonthamurra People.

3    In the circumstances which are set out below, the Court made an order on 16 October 2013 for certain questions to be heard and determined prior to and separately from any other questions in the proceeding. Those questions relate to whether the apical ancestors of the Booth/Fisher families, and of the McCarthy family, are apical ancestors of the Boonthamurra People.

4    If they are, the representatives of the families are entitled to remain as respondent parties to the application, with the consequence that their apical ancestors may or should be included as apical ancestors of the Boonthamurra People group. In other words, that would require the re-definition of the claim group to include their apical ancestors. It is not entirely clear from the submissions on behalf of the Booth/Fisher families that that is the outcome which they intend. That too is discussed below.

5    If they are not, then the two families or their representatives should be removed as respondents to the application.

6    The particular questions are as follows:

(1)    Were the deceased persons known as Clara and her son Frank Booth Boonthamurra persons?

(2)    Did the geographical area with which Clara and her son Frank Booth were traditionally associated extend into the claim area of this claim, and if so to what extent?

(3)    If so, is it reasonably arguable that Clara and her son Frank Booth acquired native title rights and interests in any part of the Boonthamurra claim area on the basis of that descent, other than as members of the claim group?

(4)    Were the deceased persons known as Toby and/or Jenny, and their daughter, Toney:

(a)    Boonthamurra persons; or

(b)    Kungadutji persons?

(5)    Did the geographical area with which Toby and/or Jenny, and their daughter Toney were traditionally associated extend into the claim area of this claim and if so to what extent?

(6)    If so, is it reasonably arguable that persons who are descended from Toney acquired native title rights and interests in any part of the Boonthamurra claim area on the basis of that descent, other than as members of the claim group?

(7)    Were either of the deceased persons recorded on the Tindale Brewarrina Sheet #3, namely:

(a)    “FB” being the mother of Jack Mallyer;

(b)    “FB” being the mother of Kitty of Cooper Creek;

Boonthamurra People and persons from whom living Boonthamurra persons may be descended?

(8)    Does the geographical area with which either of those persons is traditionally associated extend into the claim area of this claim, and if so to what extent?

(9)    If so, is it reasonably arguable that either of those persons or Robert Burns as descendant acquired native title rights and interests in any part of the Boonthamurra claim area, other than as members of the claim group?

Questions 1-6 concern the Booth/Fisher families and questions 7-9 concern the McCarthy family.

7    Evidence was led and argument heard on these issues over eight hearing days from 28 January 2014 to 6 February 2014. This judgment contains the reasons for my determination in relation to these issues, and for the consequential orders.

BACKGROUND TO CLAIM

(a)    The geography

8    The south-western section of Queensland has been the subject of various claims for the recognition of native title rights and interests under the Native Title Act 1993 (Cth) (the NT Act). It is convenient to refer in a little bit of detail to the geography to understand the present issues which the Court is to determine and the present way in which those issues arise.

9    The geographical area of the present claim is in the south-western section of Queensland. It is very roughly an oval shaped area bounded on the western side in part by the Cooper Creek and on the eastern side by the Grey Range. On its northern side is the junction of the Thompson River and the Barcoo River, both of which join to become the Cooper Creek. Flowing west from the Grey Range is a series of water flows including, towards the southern section of the present claim area, the Wilson River. The present claim area comes to a rough point at its southern-most extremity where the Wilson River flows roughly south west and then some distance south of the claim area it merges with and runs into the Cooper Creek.

10    The present claim area is surrounded by other claims under the NT Act.

11    Roughly to the eastern side of a section of the present claim area is Claim QUD 26/2007 brought by the Mardigan People.

12    To the north and east of the claim area is claim QUD 644/2012 of the Bidjara People which takes in the area of the Thompson River and the Barcoo River and part of the upper eastern section of the Grey Range. The southern section of the Bidjara People claim abuts in part the northern side of the Mardigan People claim.

13    The Mithaka People claim (QUD 6033/2002) is to the north and west of this claim. It touches the Bidjara People Claim at the point of the joinder of the Thompson River and the Barcoo River. The Mithaka People Claim roughly runs from that point spreading in a westerly direction towards the South Australian/Queensland/Northern Territory borders, taking in an area also to the west of the present claim area and it extends to Haddon Corner (the north-eastern corner of the South Australian border). It therefore partly abuts the western side of the present claim at its north western part.

14    The south-western section of the present claim is then abutted by the Wongkumara People claim QUD 52/2008, to the south of the Mithaka People’s claim. It takes in a significant area to the west and south of the present claim and extends for some distance into northern New South Wales. It therefore takes in the southern parts of the Cooper Creek including that section of the Cooper Creek which then runs into South Australia. It also abuts to some degree a south-eastern section of the Mithaka People claim also along the Cooper Creek.

15    To the west of the northern part of the Wongkumara People claim, and to the south of the Mithaka People claim and also bordered by the South Australian border south of Haddon Corner, is a roughly triangular area. It is presently an area not claimed under the NT Act. Within that area is Lake Yamma Yamma, and also within that triangular area immediately to the east of the South Australian border and a little to the north of the point where the Wongkumara People claim runs along the South Australian border is Arrabury Station. To the west of the South Australian border at that point, and running up to Haddon Corner is the Yandruwandha/Yawarrawarrka People claim (SAD 6024/1998 which takes in the Cooper Creek area in South Australia, and it abuts the Wongkumara People claim (apart from that triangular area) along the South Australian/Queensland border.

16    To the south-east of the present claim to the point where it abuts the Wongkumara People claim is the Kullilli People claim (QUD 80/2009), which also extends south over the New South Wales border. It therefore abuts the south-east section of the present claim and the southern section of the Wongkumara People claim. To the north and east of the Kullilli People claim is the Mardigan People claim (QUD 26/2007) extending north to the Bidjara People claim as noted. The Mardigan People claim area therefore abuts part of the eastern side of the Boonthamurra claim area.

17    So, the claim area is surrounded by a number of claims. Starting in the north-east, and moving anti-clockwise, they are the Bidjara, Mithaka, Wongkumara, Kullilli and Mardigan Peoples claims.

18    The focus of the evidence was in the southern central area of the claim area where the Wilson River flows from the Grey Range south west. In that area, and as the Wilson River flows south west more or less where the Kullilli and Wongkumara Peoples claims touch, there are a few more features of the geography to mention.

19    In about the centre of the southern section of the present claim, is the township of Eromanga. South of the southern point of the present claim and along the Wilson River as it flows south-west to join with the Cooper Creek, are the townships of Nockatunga (in many documents spelled as Noccatunga) about 35 km south of the southernmost point of the claim area and Noccundra about a further 20 km or so south of Nockatunga. As noted, those two towns are more or less at points where the Wongkumara and the Kullilli Peoples claims have a common border.

20    In the course of the evidence, other station properties were mentioned. Durham Downs is a station on the Cooper Creek in the Wongkumara People claim east and a little south of Arrabury station, and on the western side of the Cooper Creek. It is north of the point where the Wilson River joins into the Cooper Creek catchment area.

21    Mount Leonard is a station property in the Mithaka People claim, north of Haddon Corner and well to the west of the present claim area.

22    Mount Howitt Station appears to be at a point about where the present claim towards its south-western side and the Wongkumara People claim have a common border. It is to the east of Cooper Creek, and to the west of a smaller range within the present claim area called the Cooke Range.

23    Thargomindah Station is a station property in the Kullilli People claim, well to the south of the present claim area. It is on the Bulloo River, which runs roughly south-east towards the Queensland/New South Wales border, but the Station is considerably north of that border.

24    Other names mentioned in the course of evidence are Birdsville, Bourke, Barambah, Kyabra Creek and Woorabinda.

WHY THE PRESENT QUESTIONS ARISE

25    It is necessary to refer to that geographical material to better understand the evidence because, as occurred in this area and apparently elsewhere, many Indigenous people either alone or in family units during the early parts of the 20th century were relocated, due to social policies of the time, to areas which were perceived to be better suited for their collective wellbeing or for better accommodation, and for other reasons. That led to the dislocation of a number of those families from areas where they were originally brought up.

26    In addition, memories fail or fade. Oral history, so important to the proper determination of whether native title rights and interests should be recognised in respect of particular areas, and so important to identifying who are the persons who comprise the native title claim group for a particular area, becomes less available or less reliable. Some memories are lost with the passage of time as the more senior Indigenous people pass away. That, unfortunately but inevitably, is becoming more of a factor confronting those pursuing claims under the NT Act with the passage of time. Allowance must be made for such matters when assessing the quality and consistency of evidence which is directed to showing that a particular person or family had ancestors who enjoyed and possessed native title rights over particular country.

27    As a matter of case management, this claim, and the Wongkumara, Mithaka and Bidjara Peoples claims and the Mardigan People claim have all been managed to a degree together. There have been negotiations with the State of Queensland with a view to each of them progressing towards a consent determination. That has proved impossible in the present circumstances, at least in relation to the present claim, because it is unclear whether the apical ancestors’ names in the present claim are all the apical ancestors for the Boonthamurra people, or only some of them (in particular) so that they should include the apical ancestors of the Booth/Fisher families and of the McCarthy family.

28    As noted, this claim has been on foot for some time. It has been preceded by previous claims made in relation to the same claim area or parts of it by different persons asserting to be Boonthamurra People (sometimes spelt differently).

29    The applicant wishes the present claim to proceed to hearing. In view of the ongoing contest about the composition of the claim group, and issues as to connection, the Court appointed the anthropologist Professor David Trigger as an independent expert, with the consent of all the parties including the Booth/Fisher families and the McCarthy family, to see whether resolution of the claims by agreement could be reached. That procedure continued to a point where it became apparent that it was necessary for the Court to resolve the present issues. They could not be otherwise resolved. They presented an insurmountable hurdle to the final resolution of this particular claim which might otherwise be resolved as between the applicant and the State of Queensland.

30    The evidence relating to the status of the Booth/Fisher families and the McCarthy family in relation to the Boonthamurra claim was heard on the same occasion, but separately, with a view to determining their status. I have had the benefit of oral evidence adduced on behalf of those family groups, together with expert anthropological and linguistic evidence both in reports and by oral evidence given concurrently, a significant volume of documentary material, produced either by consent or without opposition, and the submissions.

31    The State adopted, at the commencement of the hearing, an agnostic position in relation to the issues or questions to be addressed. It was anxious for the questions to be resolved, so that, if appropriate, this claim and the other proceedings in respect of adjacent areas could progress if possible to determination. The State therefore appeared generally to identify the relevant issues, to make submissions of law, and where necessary to test parts of the evidence of the witnesses in relation to matters of dispute. It made final submissions in light of the whole of the evidence.

the relevant principles

32    Section 225(a) of the NT Act requires the Court to provide a description of the people who hold the rights and interests comprising the native title. The requirement is expressed in terms of making a determination of “who the persons or each group of persons, holding the common or group rights comprising the native title are”.

33    In Moses v Western Australia (2007) 160 FCR 148 at [370], the Full Court said of this requirement:

In the case of group claims, s 225(a) will ordinarily be satisfied if the name of the group is provided. There is no automatic requirement that the determination set out in detail how the group membership is constituted or the criteria by which membership is attained.

34    However, as Barker J noted in Banjima People v Western Australia (No 2) [2013] FCA 868 (Banjima) at [529] and [534]:

… in any given case there may be a question concerning the broad description of the peoples or the group and the criteria for its membership. In such a case it would ordinarily appear appropriate, if not necessary, for the Court to deal with such a question should it arise.

… in a case such as the present where issues of ancestry have been directly raised, it is … appropriate that the Court should determine whether particular claimed apical ancestors are made out on the evidence.

35    That conclusion has been endorsed by the Full Court (Jagot, Barker and Perry JJ) in State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143 (Ngadju). In that case, at first instance, the primary judge found that the Ngadju People held the native title found to exist and that he did not need to list the members of the claimant group with any greater particularity as their membership “is a matter for [them]: see [83]. On the appeal, the State contended that in circumstances where the qualifications of a named ancestor were in issue, the primary judge should have determined whether the connection asserted was made out on the evidence. The Full Court accepted that argument, and said at [91]-[92]:

We accept that, in many circumstances, it will be appropriate, in the judgment of the Court, for the determination of native title made under s 225 NTA to identify the group who hold native title by a language group description, as his Honour did in this case. We also accept, however, that if the ancestry of a particular claimed apical ancestor is brought into question at the hearing of a claimant application the issue will usually need to be resolved by the Court for the purposes of the determination.

In circumstances where, under s 225, the responsibility of the Court is to make a determination that includes, by para (a), who the persons, or each group of persons, holding the common or group rights comprising the native title area, it is incumbent on the Court, where a genealogical issue such as that relating to Hettie Dimer is raised, to consider whether the ancestor either is one of the persons who h old the common or group rights comprising the native title or is included in the group of persons holding the native title for the purposes of the determination. It is not an intramural question for a claim group to determine later, but an element going to the proof of native title that must be resolved by the Court, if in issue.

36    That is the present situation. Issues of that kind will be determined on the basis of both anthropological evidence and evidence from the individuals themselves. Their oral evidence may be determinative in particular cases, notwithstanding a lack of, or ambiguity in the ethnographic evidence or other expert or documentary material. A recent illustration of an approach, where there is not clear ethnographic data, and a difference of opinion amongst the Aboriginal witnesses, is provided by Barker J’s decision in Banjima. Barker J said at [597]-[598]:

There are some circumstances in which the lack of an independent ethnographic record supporting the inclusion of a claimed apical ancestor amongst the ancestors who may be taken to have possessed native title rights in the claim area at sovereignty may be of relatively little moment, and the evidence of claimants themselves concerning the reputation of a claimed apical ancestor will be determinative and lead to a finding that the claimed apical ancestor was indeed an ancestor for native title purposes – as indeed I have found above in the cases of Sam Coffin and Whitehead. In this particular instance, however, there is no clear agreement amongst members of the claim group themselves as to Daisy’s identity. There are those who emphasise Daisy’s Nyiyabarli ancestry and those who say she was Banjima.

The Court accepts that, for native title purposes, it is not enough that a community or segments of a community of Aboriginal people acknowledge a person as part of their group if that person does not also have a relevant ancestry within that group by their law and custom, as Mr Robinson and Dr Palmer explained in their evidence. It is not enough, if a person’s ancestry is in question, for example, merely to show that a person has lived for many years in the relevant claim area and been involved in the relevant community’s cultural activities, if there is some real doubt about their ancestral connection or traditional incorporation within that community. This is one of the difficult issues governing native title claim group membership.

37    In that case, based on the evidence as a whole, the Court was unable to conclude, on the balance of probabilities, that a particular person had any relevant ancestral connection to the Banjima People, having regard to the serious doubt conveyed by the ethnographic data which also plainly influenced the serious uncertainties about her ancestry expressed by the anthropologists. Cf the decision of Dowsett J in Aplin on behalf of the Waanyi Peoples v Queensland & Ors [2010] FCA 625, on the material in that case.

38    In a case such as this, it is necessary for the Court to make the necessary findings to resolve the issue.

39    In this matter, a great deal of material has been gathered in relation to these issues – falling into three broad categories:

(a)    historical and other documentary material;

(b)    the oral history/evidence of the relevant families; and

(c)    anthropological analysis of both.

40    In addition, an agreed statement has been prepared in relation to the claim by each respondent group, but in each case that is essentially limited to what can be discerned from the historical documents.

41    Before turning to the evidence, it is necessary to record something about the “Tindale” records. Norman Tindale was an Australian anthropologist and archaeologist, who spent many years of his professional life mapping the tribal areas of Aboriginal Australians and undertaking surveys of the genealogies of the Aboriginal population in certain parts of Australia. He carried out such work in the south west Queensland area on a Harvard-Adelaide University Anthropological Expedition in 1938-1939. His genealogical research was conducted thoroughly, using teams of support researchers and recording the data obtained on cards and other larger records. The data recorded included languages spoken and other tribal information. Those records are held in the South Australian Museum. They have been accessed by the experts who have given evidence in this matter. Their evidence has explained some of the abbreviations used in the Tindale records, as well as some of its limitations where apparently inconsistent family information was obtained from different family members and was not fully explored. On the whole, it is clear from the evidence that each of the experts regarded the Tindale information as a very valuable resource and used it as part of the data relevant to their reports.

42    Several experts gave evidence to assist the Court in determining the issues On 29 July 2013, I ordered that a conference of experts be organised as part of the case management of this matter. A conference of experts was convened at the Court on 27 August 2013. The expert anthropologists present at the conference included Professor Trigger, Dr Andrew Sneddon, Dr Fiona Powell and Ms Inge Riebe. Mr Michael Southon, who conducted primary research for the applicant for the Boonthamurra claim itself was not present. No objections were raised as to the qualifications and expertise of the experts. I am satisfied that they are capable of giving opinion evidence pursuant to s 79 of the Evidence Act 1995 (Cth) insofar as their opinion is wholly or substantially based on their specialised knowledge.

43    A report as a result of the conference of experts was produced. The experts noted that they have had limited material on which to form their respective views. However, the experts were able to agree on several issues. Relevantly, the experts agreed that the relevant laws and customs concerning membership of the Boonthamurra people are that a person is a Boonthamurra person if the person is a descendant (biological or adopted) of a Boonthamurra person and is recognised by other Boonthamurra people as a Boonthamurra person.

44    At the hearing, I was assisted by Professor Trigger, Dr Sneddon, Dr Powell and Mr Southon who gave concurrent evidence. I will refer to their evidence in some detail when addressing the claims of the two groups of respondents.

THE BOOTH/FISHER FAMILIES CLAIM

(a)    The issues as they emerged

45    As the issues have emerged, the claim is not simply about whether the Booth/Fisher families are properly Boonthamurra People by their apical ancestors but about the location of Boonthamurra country. When the order for the determination of particular questions was made, it was anticipated that if the deceased person, Clara and her son Frank Booth were found to be Boonthamurra People, or alternatively if Frank Booth’s wife Toney was Boonthamurra, that would be followed by an order that they should be added to the apical ancestors of the Boonthamurra People, and so the Booth/Fisher families would be recognised as members of the Boonthamurra People.

46    In the course of submissions, the issue did not emerge in that way. Counsel for the Booth/Fisher families indicated that the Booth/Fisher families described themselves as part of the Wilson River group, involved largely through Clara in only the southern section of the Boonthamurra claim area, but they also claimed native title rights and interests over parts of the Wongkumara People claim area and the Kullilli People claim area. In addition, in respect of the alternative apical ancestor known as Tobey and/or Jenny, or her daughter Toney (but on the evidence more directly through Toney), the proposition was put in argument that the Kungadutji community had become synonymous with and part of the Boonthamurra People, but the two families’ particular interests through Toney were in the western section only of the Boonthamurra claim area towards Cooper Creek area, and probably west of the Cooke Range.

47    In either event, it became apparent that the answer to the questions as expressed, if affirmative, would not routinely lead to the apical ancestors for the Boonthamurra People being changed in respect of this particular claim area. It might lead to a fresh claim made by the “Wilson River group” in respect of an area which overlaps each of the Boonthamurra, Kullilli and Wongkumara Peoples claim areas.

48    In that regard, it is worth noting that, as I observed when that potential position emerged, the general south-west area of Queensland has been the subject of extensive claims made over a long period of time. All of those claims (other than the ones presently on foot) have either been dismissed or discontinued. If there is to be another claim, it should have been brought earlier and in a timely manner.

49    However, it is not necessary to consider the consequences of such a potential claim, except to the extent that it affects the answers to the questions referred and consequently the status of the Booth/Fisher families as respondent parties to this application.

(b)    Clara

50    The first claim by the Booth/Fisher families is dependent on the assertion that they are descendants of an Aboriginal woman known as Clara who held native title rights in the Boonthamurra claim area, and from whom such rights have been passed to them through her son Frank Booth. For the reasons that follow, I am not satisfied that Clara was a Boonthamurra person, or that she held native title rights in the Boonthamurra claim area.

51    Clara married Jim Booth, a white man. She is the mother of Frank Booth. Toney married Frank Booth. Frank Booth Jnr and Toney are in turn the parents of Dolly Fisher, Clancy Booth and Dempsey Booth. It is the next generation: Dennis Fisher (son of Dolly Fisher) and Geoffrey Booth (son of Clancy Booth) and others who have given evidence in this matter.

52    It is accepted that the Booth/Fisher family members, including those who gave evidence, do trace their ancestry back to Clara. There is no dispute about the family line, so it is not necessary to set it out in detail.

53    What is important is whether Clara was a Boonthamurra woman or had an interest of a relevant kind in the present claim area, or (as the evidence has focused) in the southern part of the present claim area.

Oral Evidence

54    The Booth/Fisher families relied on oral information of Clancy Booth, Toney’s son with Frank Booth; Geoffrey Booth, the son of Clancy Booth; Dennis Fisher; Coral King, granddaughter of Toney; and Ivy Booth, Clancy Booth’s wife. As noted, the Boonthamurra claim group do not recognise or accept Clara’s or Toney’s descendants as Boonthamurra people.

55    There was some evidence that Geoffrey Booth’s father, Clancy Booth, claimed to be Boonthamurra through his father Frank Booth. That evidence came from three sources: what he told his solicitor, Mr Paul Hoolihan in the early 1990s, what he wrote in letters himself in the mid-1990s, and what he had told his family.

56    Mr Hoolihan gave evidence as to what he was told by Clancy Booth in the early 1990s. Mr Hoolihan met Clancy Booth in 1992 following the High Court’s decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2) because “he wanted to know whether he would have any way of – of going back to his own country”. Clancy Booth told Mr Hoolihan that his family came from Nockatunga. He was born in Nockatunga and said that his father had been removed from Nockatunga in 1930 by order of the Chief Protector of Aboriginals.

57    The context for Mr Hoolihan’s discussions with Clancy Booth was the prospect of pursuing a claim under the NT Act. His discussions with Clancy Booth focus on living on, and having a particular relationship with, the Wilson River area in the vicinity of Nockatunga. As noted, that is an area south of the present claim area. The map markings of the area of country identified by Clancy Booth, with the assistance of another Aboriginal person, extended generally in an oval shape from the western side of the Wilson River to an area roughly near the South Australian/Queensland border including Arrabury Station, and a little north to the lower part of the present claim area. That area covers much of the Wongkumara People claim area, and only the small lower section of the present claim area.

58    Clancy Booth always maintained that Nockatunga was his area. That was the country he wanted to claim. At the time, Clancy ascertained that the Boonthamurra people had been around that area as well and told Mr Hoolihan, “I speak Boonthamurra and that’s my father’s country”.

59    Mr Hoolihan said Clancy Booth had identified his mother’s area to Mr Hoolihan as “up there”, indicating a north-westerly direction from Nockatunga. Mr Hoolihan during his oral evidence said that Clancy Booth made generalised descriptions based on his geographical knowledge of the area but did not mention any specific places. He accepted Clancy Booth would refer to himself as “Boonthamurra speaking Kullilli”. During the hearing, Mr Hoolihan’s attention was drawn to a letter dated 27 March 1995, signed by Clancy Booth and by Robin Rankin as Kullilli Elders. The letter was about the appointment of Goolburri Aboriginal Corporation Land Council as representatives to research a proposed Kullilli Land Claim. It included details about the proposed budget in managing the claim. That letter followed a meeting of some interested persons trying to address the ongoing disputation about the allocation of country between groups. Mr Hoolihan was unable to explain why Clancy was claiming to be an elder of the Kullilli clan at the time if he was actually Boonthamurra. He was unable to explain why Clancy’s granddaughter Tanya was then working as a research assistant to support the proposed Kullilli native title claim if she was Boonthamurra.

60    An undated letter to the Administrator of Goolburri Land Council under the heading of “Mr Clancy Booth, Thunkamara Clan, Kullilli” and signed by Clancy Booth as a “Kullilli Elder” obviously follows soon after the letter of 27 March 1995. It purports to amend the instructions in the letter of 27 March 1995, so that Mr Hoolihan is to be the solicitor rather than solicitors of the Land Council. That is also inconsistent with what Mr Hoolihan recalls he was told by Clancy Booth around that time.

61    Mr Hoolihan was also shown a letter written by Clancy Booth on 25 August 1995. Relevantly, it asserted that the traditional owners of the area to be covered by the Tenaco pipeline in south-west Queensland (around the Wilson River area), were Clancy Booth, Henry Phillips, Marj Row Row and Dennis Fisher. That area did not directly relate to the present claim area.

62    During the course of the hearing, a “map” was tendered, which was said to have been drawn up by Clancy Booth, Marj Row Row and Henry Phillips. Regarding that, Mr Hoolihan gave evidence that Henry Phillips was a Wongkumara man (or maybe Kullilli) and Aunty Marj (Marj Row Row) was Wongkumara/Boonthamurra, that Clancy Booth gave him detail about Boonthamurra area, and that all three people agreed the area shown was as close as they could recollect the area of their ancestral country. The map “was a break up of their own country in terms of the Kullilli claim”.

63    As noted, Mr Hoolihan’s evidence about how Clancy Booth described himself is not consistent with the written records signed by Clancy Booth during the 1990s. Mr Hoolihan agreed that he was trying to come to grips with the requirements of the NT Act, and perhaps drew assumptions that he should not have done. At all events, in the face of the documents signed by Clancy Booth, particularly the letter of 27 March 1995, I cannot place much weight on Mr Hoolihan’s evidence that Clancy Booth identified himself as a Boonthamurra.

64    In relation to the third source of Clancy Booth’s information, namely what he told his family, including his son Geoffrey Booth and his wife Ivy Booth, it is convenient to refer to the evidence of those family members directly.

65    As noted, Geoffrey Booth is Clancy Booth’s son. In Geoffrey Booth’s affidavit of 7 November 2008, he said he was told by his father that Grandpa Frank (Frank Booth) was from Noccundra and Nockatunga, and that around “that way” was Grandpa Frank’s country. He said Grandpa Frank was a Boonthamurra man. He also said Clancy Booth was from Nockatunga and that his tribe was the Boonthamurra/Wilson River tribe. In his affidavit of 12 November 2012, he said that Nockatunga was the main feature and central to his country. He said Clancy Booth’s mother, his grandmother, came from “around Eromanga” and that this was her country and that she was a Kungadutji woman. At the hearing, Geoffrey Booth gave evidence of his understanding of law and custom, as taught to him by his father that the child’s mother chooses their tribe, and that his mother elected to choose Boonthamurra. He said Clara chose Boonthamurra for her son Frank and that Toney, Frank Booth’s wife, also chose Boonthamurra for Clancy Booth. Geoffrey Booth said his father identified as Boonthamurra and there was a conscious decision made not to identify as Kungadutji in order to keep the family together. He also said his father told him a lot about Kungadutji laws and customs.

66    Like Mr Hoolihan, Geoffrey Booth was shown the letter signed by Clancy Booth dated 27 March 1995, which indicated that Clancy Booth then said he was an elder of the Kullilli Clan. In response to questions as to why his father did not identify himself there as Boonthamurra, Geoffrey Booth said his father was “frightened of the system.” He said his father was classified as Kullilli as he was from south-west Queensland by the government, and he was too scared to say otherwise. Geoffrey Booth also said that it was due to force of habit, referring to himself as a Kullilli elder. Geoffrey Booth also said his father and Robin Rankin (the other Kullilli signatory of that letter) were from different tribes. He was shown the letter signed by his father on 25 August 1995. Geoffrey Booth did not make any comment as to why his father started off that letter saying “I’m writing to you today to raise the following matters with you in the strongest possible terms”. It is not consistent with Clancy Booth being fearful of the system that he hid behind the label of being a Kullilli elder when he was a Boonthamurra man. Nor is the letter which is referred to above and apparently followed the letter of 27 March 1995. It was, in part, during the evidence of Geoffrey Booth and then also in the evidence of his mother Ivy Booth, that the focus on the Wilson River area emerged, including largely to the south of the present claim area.

67    Ivy Booth was Clancy Booth’s wife. In her affidavit of 1 November 2012, she said Clancy always told her he was Punthamurra (a spelling variant of Boonthamurra), and that Frank Booth always referred to himself as Punthamurra. She said there was never any discussion with Clancy Booth as to what their children’s tribe should be, that all his family and children were Boonthamurra. In relation to where Clancy Booth’s country was, she referred to the Wilson area/Wilson River area at the hearing. She also mentioned Eromanga as a place they used to live at. During re-examination, she also identified Noccundra, Nockatunga, Charleville, Quilpie and Thargomindah as places she had travelled to. None of those places are in the claim area. I will refer to her evidence further in these reasons.

68    Coral King claimed descent from her father, Bill Booth, son of Toney. She gave evidence that Boonthamurra was chosen for her as her tribe. She came to this knowledge as a child but also said “we referred to ourselves as the “Wilson River Clan”. The Wilson River Clan were people who lived around Nockatunga and Noccundra areas. This was the area where her father and his tribe lived. She sees her country as Nockatunga and Noccundra. Her evidence that Clancy Booth never identified himself as Kullilli when she was in listening distance suggests (in the face of the letter of 27 March 1995), that she was not told much by him in the mid-1990s about his country.

69    Dennis Fisher gave evidence at the hearing that his mother was Boonthamurra and she told him that was her tribe. She died when he was very young. This differed from what he said in his affidavit of 11 November 2008 which stated that he learned he was Boonthamurra from his cousin Tom when he was an adult. He lived over the road from Frank Booth for seven years in the 1960s and that Frank Booth claimed him for his group. However, he said he did not learn anything from Frank Booth and he thinks Frank Booth’s country was Noccundra. In his affidavit of November 2008, he said he learnt about their family and their history from Geoffrey Booth but did not elaborate upon that during the hearing. I do not think that, overall, his evidence really advances the claim of the Booth/Fisher families to be Boonthamurra. It is very general in its nature, and the foundation for his undoubted belief is not a persuasive one, in the sense that there is a detailed cogent history to support it. Indeed, it is fair to ask why he was not told much by Frank Booth when he had a reasonable opportunity to be told things by him.

70    The applicants to the Boonthamurra Native Title Claim relied on the oral evidence of Barbara Bond and Mark Wallace.

71    Barbara Olsen and Barbara Bond are claimants in the Boonthamurra Native Title Claim. Barbara Bond is the secretary of the Boonthamurra Corporation and helps arrange meetings between the claimants, one of which was held on 25 October 2012. She gave evidence that during that meeting, about 20 Boonthamurra people attended. They discussed whether Geoffrey Booth and his family were Boonthamurra people. She said they very quickly disagreed. Some people said they were from further south. Others said they were Kullilli people. Not one person said they were Boonthamurra people. The Boonthamurra claim group convened again on 25 and 28 July 2013 and was attended by about 40 people. The topic of whether Geoffrey Booth or his relatives were Boonthamurra people were raised again and lots of people said “No”. No one made a positive assertion that they were Boonthamurra People.

72    Mark Wallace is also one of the claimants and the authorised representative in the Boonthamurra Native Title Claim. Mark Wallace gave evidence that he attended meetings at Quilpie in the mid-1990s regarding the cultural clearance of a gas pipeline through the area and saw Clancy Booth and Geoffrey Booth there. He was there himself as a Boonthamurra man. He understood that Clancy Booth and Geoffrey Booth attended as representatives of the Boonthamurra People. He did not object to it at the time. At the time, Clancy Booth was also on the same proposed claim on behalf of the Boonthamurra People. However, that claim did not proceed because it was not an authorised native title claim. He now firmly says the Booth/Fisher families are not Boonthamurra.

73    It is clear that each of the witnesses whose evidence I have referred to was honest and endeavoured to give reliable evidence. I have pointed out features of some of the evidence, including how it accorded with or collided with contemporary documents, to indicate my concerns about the weight to be given to it. In the case of Geoffrey Booth, I think his strong personal belief must be weighed against the strength of its sources. Geoffrey Booth’s evidence heavily relied on what his father Clancy Booth told him, but it is not so clear that what his father told him reliably represented what, at least in 1995, his father believed. There is no cogent basis for thinking Clancy Booth called himself a Kullilli Elder through fear and intimidation as the letter of 25 August 1995 was written in assertive terms, with no inflection of fear or intimidation. It is also very unlikely that Clancy Booth was using the term Kullilli in a generic sense, representing South West Queensland generally, as there is no reason for that if Clancy Booth then identified as Boonthamurra only, and the distinction was clearly generally known at the time.

74    It must of course be borne in mind that, at least to some degree, the concept of group or tribal boundaries required more formal recognition only as a result of the NT Act. It was nevertheless a well-recognised feature of anthropological description from the early times of European settlement. In that light, I have to weigh that evidence (including that of the other witnesses) with the recorded data and the anthropological material. That evidence includes the evidence of both Coral King and Ivy Booth. They were both clearly honest and genuine witnesses. Coral King referred to Boonthamurra as her chosen tribe although it seems her country is more narrow than the area described by the other members of the Booth/Fisher families. She repeated several times that her country was around the Wilson River area, Nockatunga and Noccundra. She was unable clearly to locate other areas that were supposedly mapped out by her relatives, her elders. Ivy Booth said her children with Clancy Booth were Boonthamurra because Clancy Booth wanted them to. Ivy Booth was a Gooreng-Gooreng woman and yet she said there was no discussion with Clancy Booth as to what tribe their children should belong to. That seems to be inconsistent with Geoffrey Booth’s evidence that it is custom for the mother to select the tribe for their children (the father only selected the tribe if the mother is not an Aboriginal woman). However, her evidence is of considerable weight.

75    It is probably unnecessary to say that Barbara Bond was a reliable witness. Her evidence was not subjected to any substantial cross-examination. I am satisfied that her recollection as to what happened during the meetings of the Boonthamurra claimant group were accurate. Similarly, I accept Mark Wallace to be a reliable witness. Like Barbara Bond, his evidence consisted of his recollection as to what happened during certain meetings, and I am satisfied that it is accurate.

76    It is necessary now to return to the anthropological evidence.

77    Dr Powell produced two reports, dated April 2013 and August 2013. Her report of August 2013 was prepared subsequent to the conference of experts and supplements her report of April 2013.    She concluded that the Booth/Fisher families had connections to the area of the Boonthamurra People claim. Dr Powell’s evidence was based on a series of steps in reasoning as outlined in her report of August 2013 to which she referred to during her oral evidence.

78    In relation to identifying Clara as a Boonthamurra person, Dr Powell’s first critical step was to rely on page 705 of Tindale’s Journal as a reference to Frank Booth as the person described as: “worked with a Kungadu:tji F1 man (N1242, whose photograph is marked 1241 by mistake).” Dr Powell expressed the view that this was a reference to Frank Booth and his tribal or group identity. I note that Professor Trigger doubted whether the term “Kungadu:tji” was necessarily a reference to Frank Booth’s tribal group or identity because there is an accepted alternative usage of that word as a general descriptor for the status of a person as an initiated man. It appears likely that the reference is to Frank Booth, but the issue is whether the reference describes his tribal group. Further, Dr Sneddon posited that Frank Booth may have been speaking to Tindale about “Kungadu:tji” social practices as his wife was a “Kungadu:tji” woman.

79    Dr Powell’s second step, in a responsive sense, was to say that the Tindale Woorabinda genealogy sheet numbers 31 and 43, which noted Clara as a Yandruwandha/ Yawarrawarrka person, and Frank Booth’s data cards were less reliable than Tindale’s Journal entry referred to in the preceding paragraph. Dr Powell’s view that the source of the data in the sheets and data cards was not apparent. In comparison, she found it preferable to rely on page 705 of Tindale’s Journal because it purported to record information directly given by Frank Booth. Dr Sneddon said that preference should be given to the data cards over the journal because of the comparative nature of the two records. The data cards were produced as part of Tindale’s goal to get details, such as tribal affinity, and went to the “heart of the project’s aims”. Dr Sneddon also took the view that the journal was more of a “light-hearted document”. Thus, the information in the data cards is more likely to contain accurate information. Dr Sneddon supplemented his view by pointing out that, as Frank Booth’s photograph was in front of the data card, he was “strongly inclined” to reach the view that Frank Booth was the informant. He also pointed out that there is a record of Frank Booth having told Gavin Breen, the author of Salvage Studies of Western Queensland Aboriginal Languages (Pacific Linguistics, Series B-105, Australian National University, 1990), that he (Frank Booth) was a Yandruwandha man from Arrabury. That is contained in Australian Institute of Aboriginal Studies, Report on Field Trip to Western Queensland 1968 of Dr Breen. As to the language for the Boonthamurra area, he records that:

Frank Booth (Enngonia) is no longer regarded as a reliable informant for the following reasons: He is a native of Yandruwanda country; He learned his “Bundhamara” at Durham Downs and other stations in Wanngumara – Gungadudji country, (although he says they were “all mixed up together”); in the only instance where a grammatical difference has been noted between Mrs Parker’s Bundhamara and Wanngumara, he speaks in the Wanngumara way.

The reference to Mrs Parker is a reference to another informant Mrs Topsy Parker. A similar comment is made by Dr Breen (then of Monash University) in the Preliminary Version of Aboriginal Languages of Western Queensland at para 26. Mr Southon also shared the view that Frank Booth was likely to be the informant for the Frank Booth data cards.

80    Third, Dr Powell relied on the moiety affiliations identified as Kulpuru and Tiniwa of Clara, her son Frank Booth and his wife Toney as indicating an association with the area around Noccundra, and therefore Boonthamurra identity. During the course of her oral evidence, Dr Powell acknowledged that those moiety affiliations are associated with many named groups, not necessarily Boonthamurra. Consequently, she accepted that little could really be made of those moiety affiliations. That accords with other evidence.

81    Dr Powell’s opinion also relied on the part that the second data card for Frank Booth, which in her view, did not contain the identify of Frank Booth’s group or tribe. Dr Powell observed that therefore the second data card may have had something erased, and so indicated correction of an error. During the hearing, she no longer maintained that opinion after viewing better copies of the data card since the time of her August 2013 report. Again, therefore, nothing more need be said of that matter.

82    There was a further piece of evidence about which there was debate between the anthropologists. It was accepted on the evidence that Clara was born at what became Arrabury Station. That area is noted by Tindale as Ngurawola (abandoned territory), but Dr Powell thought it may have been occupied by other adjacent groups such as “Kungadu:tji”, “Wonkamara”, “Jauraworka” and “Yandrwanta”. There was other data, including the report of a linguist, Dr Luise Hercus that the word Ngurawola was a name associated with the Yandruwandha/Yawarrawarrka People, whose claim under the NT Act is in the north-eastern section of South Australia and therefore immediately adjacent to the small unclaimed section described above including Arrabury Station. The association of Arrabury Station with those people is supported by the interview by Dr Breen of George McDermott and King Miller in the 1960s, as then picked up and relied upon by Mr Southon in his evidence both through his 2010 report and orally. Mr Southon identified the area of the Yawarrawarrka People as described by Dr Hercus based on the linguistic research and analysis as including Arrabury Station. The material available, in my firm view, tends quite strongly to relate Arrabury Station to the Yandruwandha/Yawarrawarrka People claim area, and so to exclude the sort of relationship necessary to support the proposition that it is in some way the country of groups more closely tied to the Boonthamurra People.

83    Most importantly, the crucial part of Dr Powell’s reasoning was to tie the term Kungadutji to a language or language land holding group with country that was occupied by Punthamara and/or Wongkumara People. She expressed the view that Kungadutji was the name of the language distinguished by others as “Punthamara” and/or “Wankumara” and that each of Kungadutji, “Punthamara” and “Wankumara” were socio-territorial identities associated with the region including Mt Howitt and the Wilson River region. Dr Powell’s view was that, over time, Kungadutji in that way stopped being used and thus, when Frank Booth identified himself as Kungadutji to Tindale, he was also in effect identifying himself as Punthamara (spelling variant of Boonthamurra). There are obviously several steps in that process of reasoning: the location of Kungadutji language use and its country; the use of that term by Frank Booth as indicating his country; and the step of equating Kungadutji country with Boonthamurra country for the purpose of tying Frank Booth to the present claim area. As noted above, there is an alternative use of the term Kungadutji – to describe an initiated man. So much was not in dispute. The step of taking its use by Frank Booth, as the informant to Tindale, as indicating that it describes his country rather than his initiated status is tied to the probability or otherwise that it describes his country around or in relation to the present claim area.

84    I think the strong preponderance of the evidence is that the Kungadutji People, as a language group holding interests in country, hold their interest quite remotely from the present claim area. Tindale’s journal records an interview with George Dutton describing the Kungadutji group as occupying the “upper Buloo River” area. Dr Breen’s interviews with George McDermott and King Miller in the 1960s record it as the area of Naryilco to Tibooburra. Dr Hercus and others in their study of Aboriginal Cultural Association with Mutawintji National Park entitled “Mutawintji”, prepared for the Registrar, Aboriginal Land Rights Act 1983 (NSW), say much the same thing. Their report at para 4.4 says:

All the evidence places Kungardutji in the area immediately east and north-east of Tibooburra and around the southern parts of the swampy areas around Lake Bulloo.

They refer to other earlier sources to support that. That area is, of course, in the north-western part of New South Wales.

85    In response, Mr Southon noted that this aspect of Dr Powell’s analysis rests too heavily on linguistics, as opposed an analysis of rights in country. He pointed out several documentary sources which suggest that there were a number of tribes that were associated with the broader language area.

86    In my view, the evidence indicates that Clara was a Yandruwandha/Yawarrawarrka person. I prefer the views of Professor Trigger, Dr Sneddon and Mr Southon on that topic. I think that the critical step taken by Dr Powell referred to above is not warranted on the whole of the evidence, and that another step in her reasoning – namely that Kungadutji is a tribal ascription rather than a general description of status – is also not warranted on the evidence. The reasons for not accepting those steps in her reasoning are set out above.

87    Once those steps are not taken, there is only the anecdotal oral evidence which tends to identify Clara, or more directly Clancy Booth and Frank Booth through Clara, as Boonthamurra. I have discussed that evidence above. They are the particular reasons why, in this particular matter, that evidence is not persuasive.

88    There is other evidence then which tends to support the conclusion I have reached. That is material to which the other expert anthropologists variously referred.

89    The Yandruwandha/Yawarrawarrka People’s country is remote from and does not overlap with land the subject of the Boonthamurra People claim. The Tindale Woorabinda genealogy sheet 43 identified Clara as “Jaurorka” (accepted as a spelling variant of Yawarrawarrka) and of Arrabury Station near Haddon Corner. That is on, or immediately adjacent to, the country claimed by the Yandruwandha/Yawarrawarrka People.

90    The Tindale Brewarrina genealogy sheet number 31 identified Clara as “Jantruwanta” and that she “came from Arrabury Stn”. Clara’s identification card C 189 also indicated that her place of birth was Arrabury Station. The data card number 1242 also identified Clara as Frank Booth’s mother and in two places, as “of Arrabury Stn” and of the Jaurorka tribe. As noted, that location is well remote from the present claim area.

91    In addition, as noted above, Mr Southon’s view in his report dated January 2011 was in part based on an interview conducted by Dr Breen of George McDermott and King Miller in the 1960s which identified Arrabury Station as being associated with Yandruwandha/Yawarrawarrka country, and the Hercus report also stated that “the western part of the country attributed to them (i.e. Ngurwola) by Tindale, which includes Arrabury, is now always regarded as being Yawarrawarrka country”. During the hearing, Mr Southon also gave evidence that Arrabury lies just 12 kilometres from the area Tindale marked as Yandruwandha. Mr Southon marked on the 1987 Hercus map, the location of Arrabury Station, indicating that it is “quite clearly within the area that Hercus identifies as Yawarrwarrka”. As I have indicated, I do not think that, even if Ngurawola meant abandoned territory, it could be reasonably inferred on the evidence that Arrabury Station was occupied by members of the abutting groups, in particular Kungadutji or Wongkumara, in such a way as to then have a connection with the present claim area.

92    Herbert Basedow was an anthropologist and geologist who conducted a number of expeditions in South Australia and elsewhere between 1903 and 1928. He prepared a list of some 250 Aboriginals in the north-east South Australian region on one of those expeditions. That list was put into evidence. It includes Clara Nirrpinni, who the experts agreed is Clara, and Maggie Nirrpinni of the Yantowannta (Yandruwandha) tribe. Dr Sneddon drew the inference that Maggie was Clara’s mother. By extension, that supports his view that Clara was from the Yandruwandha tribe through her mother’s association with that tribe. The name Nirrpinni is the Aboriginal name.

93    In Breen’s 1968 report of his field trip to western Queensland, he recorded that Frank Booth “is no longer regarded as a reliable informant” for Bundhamara language because “he is a native of Jandruwanda country…” That report also noted that Alice Millar, Frank Booth’s sister, was an informant to Breen for Wanggumara and Yandruwantha (spelling variant of Yandruwandha) languages and learning to speak Nhirrpi (a spelling variant of Nirrpinni) as an adult. The Hercus report was noted that Nhirrpi was associated with the Yandruwantha-Yawarrawarrka people.

94    The Yandruwandha/Yawarrawarrka Native Title Claim was filed in 1998, SAD 6024/1998. In that claim, one of the apical ancestors identified was “Tiniwa Clara, mother of Frank Booth and Alice Millar.” Professor Trigger gave evidence that he had conversations with Dr Creighton, who did extensive research with the claimant group. He said Dr Creighton said “that she verified separately with TOs in individual and group sessions that Tiniwa Clara of Arrabury should be an apical ancestor for the YY Claim”.

95    Mr Hoolihan’s affidavit exhibited documents indicating that Clara went on a walkabout in 1943 to Arrabury, just prior to her death. Professor Trigger, Dr Sneddon and Mr Southon drew the inference that this was not a random act, but she was going to her home to die. Mr Southon noted that it was very important to die on your country for the purpose of reincorporated into the spiritual landscape.

96    As I have noted, although there were several steps in reasoning underpinning Dr Powell’s hypothesis, by the end of the hearing, the only significant piece of evidence she relied upon which was not equally consistent with, or more supportive of, the alternative thesis is the evidence outlined in page 705 of Tindale’s journal which purported to identify Frank Booth’s tribal identity. Dr Powell is essentially relying on what she considers Frank Booth told Tindale. I do not consider that that entry, which is not consistent with the Tindale genealogical data cards or other material, is sufficient to displace the conclusion that it is likely that Clara was a Yandruwandha/Yawarrawarrka lady for the reasons given. In addition, I note that the Tindale genealogy data cards are more likely to be reliable because they were essentially the end product of Tindale’s research project and careful methodology, through the team assisting him, than his journal which is a document of more general observations during his travels. The genealogy data records were the result of a structured and thorough formal process.

97    Although little was made of it in the course of submissions, the evidentiary material includes an affidavit of Dr Paul Gorecki of 31 July 2008 and some reports by him. His focus was to identify the Boonthamurra People. He specifically considered the claims of the Booth/Fisher families through Clara, and rejected them on the basis of the material available to him and on his own research. His expert opinion tends to confirm the conclusion which I have reached.

98    Consequently, I find, on the balance of probabilities, that there is no sound basis that Clara had a Boonthamurra identity. It follows that Frank Booth and his lineal descendants including Clancy Booth and then the Booth/Fisher families are not Boonthamurra persons through Clara.

99    I note that one source of Geoffrey Booth’s claim to be Boonthamurra is what Mr Hoolihan referred to as the records of RH Matthews. My note indicates that the content of those records was not received in evidence, but it was referred to in final submissions. In the event that the records were received, I record that in my view they make no difference to the outcome. Matthews is apparently an historian and genealogist working in the last decade of the 19th Century. He described the Wilson River area where Noccundra Station was located as “Buntamerra” tribal country. As it is not part of the claim area, that material does not advance the claim. In one respect, at least, the Matthews records tend to confirm other parts of the evidence that people from the Wilson River area also moved to the west, and including Durham Downs Station well to the west of the current claim area and on the western side of Cooper Creek; it is in the Wongkumara People claim area.

(c)    Toney

100    Toney is the daughter of two Aboriginal persons, Toby and Jenny. Nothing is known of their tribal origins or affiliations. The evidence focused on the status of Toney. Toney married Frank Booth at Eromanga in 1916. The alternative basis of the Booth/Fisher families’ claim to be Boonthamurra is through Toney.

101    It is accepted that Toney was born at Mr Howitt Station about 1876-1880. That is where the western side of Boonthamurra People claim and the Wongkumara People claim touch, so it is close to Cooper Creek. Tindale’s Woorabinda sheet 43 carries the notations “Kungadu:tji Tr”; and “of Mt Howitt on Cooper Creek” and “Kulpura” and his Brewarrina sheet 15 carries the notations “Kungadu:tji Tr” and “of Mt Howitt on Cooper Creek”. The “Tr” is taken to refer to tribe.

102    The children of Frank Booth and Toney were Dolly Fisher and Clancy Booth, both born at Nockatunga Station in 1917 and 1921 respectively, and Dempsey Booth born at Thargomindah in 1924. In June 2013, the solicitor for the Booth/Fisher families signed an Agreed Statement which said that those families did not claim to hold native title rights and interests over the present claim area as a consequence of their descent from Toney, in essence because they did not claim to be Kungadutji. That position has now been refined.

103    In relation to Toney, who was Frank Booth’s wife and so Clara’s daughter-in-law, Dr Powell expressed the view that descent from Toney could provide the requisite connection to Boonthamurra country. It is her view that the Kungadutji as an identity label was superseded by Boonthamurra and Wongkumara, and on the basis of Toney’s association with Mt Howitt, one can infer that she was Boonthamurra.

104    Mr Southon disagreed with this view, he did not accept that the Booth/Fisher family had connections to Boonthamurra country through grandmother Toney. He referred to evidence putting Kungadutji much further south than Mt Howitt. Dr Hercus placed Kungadutji near Tibooburra, which is a long way south. He also referred to other records that place Kungadutji in the Nockatunga area. In his view, it is unclear as to what the label Kungadutji as applied to Toney means. Professor Trigger, like Mr Southon, placed reliance on Dr Hercus’ analysis that Kungadutji country is to the south. He also queried the proposition that even if Toney acquired native title rights that somehow extended to the east/south-east Wilson River Area (overlapping with the southern portion of the Boonthamurra claim area), that those rights could be inherited by her descendants. I note that the oral evidence referred to largely focused on that area, but there was some suggestion that the family interests extended to the upper western section of the present claim area, about where Toney was born. Dr Sneddon agreed with Professor Trigger’s view.

105    It is, on the evidence, clear Toney was identified as being of the Kungadutji tribe at the time of Tindale’s expedition. The issue is whether the Kungadutji area is part of the Boonthamurra country. Dr Powell agreed that her view was based on limited knowledge. She identified “various old records” which identified Kungadutji to be associated with areas that overlap with the western part of the Boonthamurra claim area. Her notion of Kungadutji being an identity label that was subsequently superseded by Boonthamurra and Wongkumara, largely relies on linguistic analysis.

106    In my view, on the evidence, the views of Professor Trigger, Dr Sneddon and Mr Southon, based partly on Dr Hercus’ analysis, that Kungadutji was more likely to be further south than the Boonthamurra claim area are more probably correct. I have discussed above the reason why I conclude that the Kungadutji People as a language group is an area well remote from the present claim area.

107    For those reasons, I do not think that the identification of Toney as Kungadutji by Tindale advances the claim of the Booth/Fisher families to be Boonthamurra. There is, in addition, no evidence to support the proposition that there is any acquisition of rights to country acquired by birth place irrespective of lineal acquisition of rights (either patrilineal or matrilineal), and there is no evidence which can support any finding that by her parentage Toney acquired rights in the Boonthamurra claim area.

108    Geoffrey Booth said in his oral evidence that he did not claim to be Kungadutji as he was following his father’s line, but had revised his position to also claim to be Boonthamurra through his grandmother. He also agreed that he had positively disavowed Kungadutji association in the past. He acknowledged, as I noted when referring earlier in these reasons to his evidence, that in any event the country associated with his grandmother’s birthplace largely extended westwards from Mr Howitt Station in the way referred to. Dennis Fisher’s evidence made only passing reference to his “grandmother Toney’s country” and had learnt of the putative connection to the present claim area only when in his 40s and he had not been taught anything about it as a child or as a young man. It was not put forward to Mr Hoolihan as a potential basis for an interest in the present claim area, or indeed in any Boonthamurra claim area, in the course of the several years he took instructions in the 1990s. Nor did Coral King or Ivy Booth give any evidence of learning at a young age, or in any detailed way, of any putative entitlement to the present claim area through Toney.

109    For those reasons, I consider that the claim by the Booth/Fisher families to be Boonthamurra and to have an interest in the present claim area through Tony is also not made out.

(d)    Conclusions

110    Accordingly, the answers to the questions set out above at [6] are:

(1)    No.

(2)    On the basis that the expression “traditionally associated” conveys that those persons held under the traditional laws and customs of a relevant native title claim group native title rights and interests in the claim area of this claim:

No.

(3)    Not necessary to answer.

(4)    (a)    No.

(b)    Not necessary to answer (see answer to question (5).

(5)    On the basis that the expression “traditionally associated” conveys that those persons held under the traditional laws and customs of a relevant native title claim group native title rights and interests in the claim area of this claim:

No.

(6)    Not necessary to answer.

The remaining questions concern the McCarthy family claims.

THE McCARTHY CLAIM

111    It was contended that if either of the deceased persons, the mother of Jack Mallyer Senior or Jack Mallyer Senior’s wife, Kitty, were Boonthamurra People, that would be followed by a determination or an order that they should be described as part of the apical ancestors of the Boonthamurra People.

112    With respect to the McCarthy claim, the State took the same agnostic position and approach as it took in relation to the claims brought by the Booth/Fisher families.

113    The McCarthy family was represented by Robert Burns, one of the members of the family. It is appropriate to recognise that he conducted their case on the hearing appropriately, and I am confident that he ensured that the material they wanted to rely upon was received and the submissions they wanted to make were forcefully made. I am grateful for his assistance.

114    Robert Burns and his mother Olive Murphy say they should be included as members of the Boonthamurra claim group on the basis of their descent from two persons who (they claim) are Boonthamurra: the mother of Jack Mallyer Snr, and Kitty Wallerina (also known as Kathleen or Katie Thompson) who is the wife of Jack Mallyer Snr. As she was referred to in the course of the hearing as Kitty, I shall use that name unless a full description is necessary.

115    Kitty was born at Birdsville or at “Comongin Roseberry” in about 1872 or 1873. She died at Bourke in New South Wales in 1929.

116    John (Jack) Mallyer Snr was born on the Bogan River in New South Wales in 1871 or at Cannonbar in New South Wales in 1863. He married Kitty in Birdsville in 1893. He died at Bourke in 1933. (I note a couple of variable dates, and places. They reflect different sources of information. Nothing turns on the differences).

117    Clearly, none of the birthplaces or places of death demonstrate any particular connection with the present claim group or to the present claim area.

118    As noted, oral evidence was given by Olive Murphy, the granddaughter of Kitty through Kitty’s son Jack Mallyer Jnr; and by Robert Burns, the son of Olive Murphy. There was evidence from the Boonthamurra claim group that they do not recognise and accept the descendants of the mother of Jack Mallyer Snr or Kitty as Boonthamurra People. In addition to evidence of Mark Wallace and Barbara Bond, Barbara Olsen gave evidence on that topic.

119    Barbara Olsen is a Boonthamurra person. She attended a “summit meeting” in Mitchell in October 2005. There were representatives of the Budjiti, Mithaka, Kullilli and other groups in the south-west corner of Queensland to try and settle boundaries. She recalls a smaller meeting about that time with Olive Murphy and her family. Olive Murphy said she and her family were claiming an area for the Buntamurra People (Barbara Olsen clearly identified this group as different from the Boonthamurra People) in the southern section of the present claim area and extending south along the Wilson River. She did not then, and still does not, accept Olive Murphy or the McCarthy family as Boonthamurra people. It does not appear that any agreed outcomes relevant to the present issues, other than for further research, were reached at that meeting or meetings.

120    Olive Murphy was born in Bourke, New South Wales. Her mother, Kathleen McCarthy (Kate Mallyer) was also born in Bourke, New South Wales in 1911. In turn, her mother was Kitty. She gave oral evidence that she was told by her mother than she was Boonthamurra “very early” after her first son was born, in 1948. Her affidavit of September 2005 said she had been told of her Boonthamurra identity when she was growing up, so there is a little inconsistency of date. She gave evidence that her mother only named two places, Cooper Creek and the Wilson River as being areas they came from. That was the extent to which her mother told her about her Boonthamurra identity. She has been to the Wilson River area around Nockatunga on two occasions. She was not told by her mother about Boonthamurra tradition or customs, where the area was, or whether it was a language group. Her mother never went out to Boonthamurra country, so far as she knows. It is noteworthy Mr Southon’s record of his interview with Olive Murphy on 16 June 2011 stated her mother came from the Wilson River and Cooper Creek areas and that her mother and her mother’s mother were Boonthamurra. Further, it should be noted that Olive Murphy’s siblings assert a Mithaka identity. The oral tradition within the family is not settled.

121    Robert Burns gave evidence of the lack of oral family history about the mother of Jack Mallyer Snr. Prior to the High Court decision in Mabo (No 2), Robert said “we never really worried about who your mob was”, “we didn’t worry about identifying who you were from”. If asked by another Aboriginal person, the response would be “I’m from Cunnamalla and my mother was a McCarthy”. Subsequent to Mabo (No 2), his mother told him he was Boonthamurra but he did not learn any stories about where his grandmother, Kate Mallyer lived or worked. He also did not learn any stories about his great grandparents, Jack Mallyer Snr and Kitty, or about his grandmother’s brother, Jack Mallyer Jnr.

122    Mark Wallace also gave evidence in relation to Olive Murphy’s presence at the 1998 negotiations with Energy Equity. His affidavit of January 2014 stated that there was a lot of disagreement regarding who was Boonthamurra and there was a pressure to do the deal with Energy Equity before amendments to the NT Act went through. During the hearing, he also gave evidence that the 1998 claim was never authorised. I do not think his evidence advances the McCarthy family claim, and to the extent that he confirms the Boonthamurra People do not accept the McCarthy family as members it inhibits it.

123    Overall, and perhaps not surprisingly, there is little evidence which either Olive Murphy or Robert Burns could give to directly support their claim. Their respective immediate upbringing was remote from the claim area, and they were not brought up with any other people recognised as Boonthamurra (other than their immediate family). Nor were they educated in Boonthamurra traditional culture or laws or customs by their respective parents. There may be very understandable reasons for that, as Olive Murphy pointed out, by the policy of discouraging recognition of Aboriginality and use of Aboriginal languages for some decades, and (it was suggested) by the forced removal of some Aboriginal families to areas where it was thought might be better for them. I do not comment on those policies, as she described them. I weigh their respective evidence having regard to the matters she described.

124    However, it is apparent that, apart from the sense of belonging and comfort they assert when on “Boonthamurra” land (parenthesis used, as their description did not fully accord with the present claim area), they could say little by personal experience or from what their respective parents or grandparents told them to fortify their connection to the present claim group. The country described to them does not meet the present claim area. The Cooper Creek is to the west, and the Wilson River area around Nockatunga and Noccundra is to the south. It is clear enough, too, that other members of the McCarthy family do not claim to be Boonthamurra, but to belong to some other Aboriginal group. The Mallyer “side” was said to come from the Bogan River area. Robert Burns pointed out that the position taken by other members of the family, as members of the Mithaka People, may simply reflect the progressive learning about country and ancestral origins from a state of limited knowledge. I take that into account also.

125    In that light, the claim by the McCarthy family is in part at least dependent on the other evidence to support the claim that the mother of Jack Mallyer Snr and/or Kitty, are Boonthamurra People.

126    The same experts engaged in the Booth/Fisher families’ claims were engaged for this claim, namely Professor Trigger, Dr Sneddon, Dr Powell and Mr Southon. They referred extensively to documentary material.

(a)    The mother of Jack Mallyer Snr

127    The mother of Jack Mallyer Snr is recorded on the Tindale Brewarinna genealogy sheet number 3. This was the only documentary evidence to support the claim that the mother of Jack Mallyer Snr was a Boonthamurra woman. On the sheet, which identified the Jack Mallyer line connecting up to his parents, identified his father as “white man” and “FB” as his mother. Adjacent to “FB” is the notation “t. wilson”.

128    Mr Southon took that view that the usual annotation for tribe in Tindale’s documents was “tr”, so it was unlikely that “t. Wilson” meant that the mother was from the Wilson River tribe. He also expressed a view that the “t” in “t. Wilson” was actually “f”, which could mean “from Wilson”. In any event, Mr Southon did not rely on the interpretation of that document to reach his ultimate conclusion.

129    Dr Sneddon and Professor Trigger shared the same view as Mr Southon, not formulating any conclusion based on this document due to the many ways in which that entry could be interpreted. Dr Powell did not express an opinion. The experts’ views on the interpretation of the annotation in Tindale Brewarrina genealogy sheet number 3 did not change during the oral evidence. Due to the apparent ambiguity of the annotation, I do not rely on that document. It is a fair observation on the available material, as each of the experts said, that Tindale consistently uses “Tr” to indicate tribe. The “t” is unlikely to refer to Tribal origin. On the other hand, they explained that “t” alone is often used to describe testatur or informant, so it is likely to refer to the informant for that information. It is also unlikely to mean “from” as the practice of Tindale is to use “fr” for “from”, and it was also agreed that Tindale uses “R” or “River” when referring to a river.

130    I therefore do not accept that that entry identifies “F.B” as a person from the Wilson River area. I think the suggestion that it means that “F.B” is from the Wilson River, and that thereafter she travelled to Bogan River to give birth to Jack Mallyer Snr in 1863 or 1871, and that despite his father being a white man and his mother “F.B” being Boonthamurra Jack Mallyer Snr took a Bogan River identity is merely speculation.

131    I note that the marriage certificate of Jack Mollyer Snr (taken to be Jack Mallyer Snr) and Kitty refers to his parents as Neddy Mollyer and Jennie. It throws no further light on the question to be decided.

132    I also do not place any real weight on Olive Murphy’s claim that, in the late 1990s, she was accepted by Mark Wallace as a Boonthamurra person. He satisfactorily explained what happened on that occasion. It does not reflect his present view, or that of the present Boonthamurra Claim group.

133    The earlier anthropological work undertaken by Dr Paul Gorecki firmly concluded that the McCarthy family was not within the Boonthamurra Claim group. His affidavit of 11 July 2008 reflects the views expressed in his earlier reports of May 2001 and 28 January 2002, the later of which concerns only the McCarthy Family. It shows significant investigation undertaken between May 2001 and January 2002. He there concludes that the descendants of Neddy Mollyer and Jennie belong to a tribe associated with the Bogan River in New South Wales, and he notes on the information then available to him that the Bogan River was the named country of their descendants, even when they were living in and around Birdsville and Bourke. He opined that Kitty’s mother more likely was from around the Diamantina River, and her father also from in the vicinity of the lower Diamantina River. Consequently, he then concluded Kitty’s country was not in or in the vicinity of the present claim area.

134    It should be noted that Dr Gorecki in January 2002 suggested a few further possible lines of inquiry. There is no evidence that their pursuit has provided any information which might support a different conclusion.

135    Mr Southon was the only expert to support the claim that the mother of Jack Mallyer Snr was Boonthamurra. He produced a report originally dated January 2011 and amended in January 2014. Mr Southon originally relied on the Tindale Brewarrina genealogy sheet number 3 in forming his opinion. The amendment in January 2014 abandoned that reliance. Nonetheless, Mr Southon expressed the view that Jack Mallyer Snr’s mother was a Boonthamurra lady. His opinion rests on three steps in reasoning.

136    First, Mr Southon dealt with Dr Gorecki’s observation that the notion that Jack Mallyer’s mother being from the Wilson River area was “problematic” because Jack Mallyer Snr was born at Nygnan, New South Wales. Given that the date of birth on Jack Mallyer Snr’s death certificate was 1863, Dr Gorecki said his mother was unlikely to have been from the Wilson River area because she must have left that area from a very early date in order to give birth to him in Nyngan. Dr Gorecki went on to propound the view that this was problematic because at the time, there had not yet been any European settlement of the Wilson River, so it was highly unlikely that there would have been Aboriginal movement so far afield. Mr Southon took a different view. He relied on earlier records, at least 1859, of activity along the Wilson River. He also relied on the birth certificate of Katie Mallyer, daughter of Jack Mallyer Snr, which recorded him as being 40 years old at the time. I accept that these two points, when taken together, overcome the issue of time as observed by Dr Gorecki. They do not, on the other hand, provide any support for Mr Southon’s thesis.

137    Second, Mr Southon relied on Olive Murphy’s statements that she was told that she is Boonthamurra by her mother. Finally, Mr Southon relied on Olive Murphy’s statements that she was accepted by Mark Wallace as being Boonthamurra in the late 1990s. I have referred to that evidence above. For the reasons given, I do not think the third matter is capable of cogently supporting the conclusion that Jack Mallyer Snr’s mother was Boonthamurra for the reason referred to above.

138    Professor Trigger and Dr Sneddon took a different view. Dr Sneddon pointed out that the proposition that Jack Mallyer Snr’s mother was Boonthamurra requires many links in the chain of causation. First, the documentary evidence of Tindale Brewarrina genealogy sheet number 3 was inconclusive. There were conflicting records as to Jack Mallyer’s birthdate. Jack Mallyer Senior took on a Bogan River identity. If his mother were Boonthamurra, it would have been expected through his mother that he would have taken on her Aboriginal identity, as his father was a white man. It is possible, therefore, Jack Mallyer Snr acquired his Bogan River tribal identity through his mother. There is nothing to suggest other family members at that generational level or at the next generational level took on a Boonthamurra identity. The only evidence supporting such a hypothesis came from Olive Murphy. Both Dr Sneddon and Professor Trigger expressed the view that that was insufficient evidence to form the conclusion that Jack Mallyer Snr’s mother was a Boonthamurra lady. Dr Powell did not have a view on the topic. I find their views persuasive. There is really nothing to connect the mother of Jack Mallyer Snr to the Boonthamurra People save for Olive Murphy having been told that by her mother, but there are some significant contradictions, as well as the expert evidence I have referred to and the identified foundations for it.

139    For the reasons I have given, I agree with the views of Professor Trigger and Dr Sneddon, reflecting the views of Dr Gorecki.

(b)    Kitty

140    It is necessary separately to consider whether Kitty was Boonthamurra.

141    The experts agreed that Kitty’s parents were Wargally and Moopina. In the Report of the Conference of Experts, Professor Trigger and Dr Sneddon expressed the view that it was not possible to determine their tribal background on the available data.

142    Kitty was born in the Birdsville area, in Mithaka country, and well away from Boonthamurra country. I accept that her place of birth is not conclusive that she was not a Boonthamurra person. Kitty was born in an era where Aboriginal people were often displaced from their traditional lands, and rights to country are not routinely related to birth places.

143    Tindale annotated Kitty as being of “Cooper Creek” which is partly in Boonthamurra country. However, Cooper Creek is large and overlaps with Mithaka and Wongkumara countries as well.

144    Kitty’s parents are accepted to be Wargally and Moopina. They are each named as apical ancestors for the Mithaka People Claim, that is for the area to the west of the north-western part of Boonthamurra claim area. That is consistent with the view of Dr Gorecki in his 2008 affidavit.

145    Jack Mallyer Jnr, the son of Kitty and Jack Mallyer Snr was born at Bourke. When interviewed by Tindale and his team in 1938 at Brewarrina (data card 138), Jack Mallyer Jnr identified his tribe as Bogan River. It is recorded against his father’s group or tribe as follows: “Jack Mallyer dark ½ caste … F1 of Bogan River”. It is recorded against his mother’s group or tribe as follows: “Kitty dark ½ caste … F1 of Cooper Creek”.

146    Evelyn Crawford, the daughter of Jack Mallyer Jnr is recorded in the publication “Over My Tracks” (1987) as saying that her father was “born on Cooper Creek below Hammond Downs Station”.

147    There is no material directly supporting the proposition that either Wargally or Moopina were Boonthamurra. Although birthplace is not significant, the material indicates that Kitty was born at Cooinghera Waterhole or Connyngera Station near Birdsville on Mithaka People country. That is consistent with the status of her parents as ascribed to them in the Mithaka People claim. Jack Mallyer’s ascription of Kitty being from Cooper Creek is also consistent with that assertion.

148    In my view, the evidence does not show that Kitty was a Boonthamurra person. In the case of Kitty, Mr Southon also did not support that basis for the McCarthy family claim. Such evidence as there is points more probably to her being a Mithaka person, putting aside the evidence given by Olive Murphy and Robert Burns. I have carefully considered their evidence. I have no doubt that they believe what they say, but I am not satisfied that their belief is one which reflects the real facts. Even allowing for the matters Olive Murphy referred to, their belief is founded upon little or no actual foundation. Accepted that it is the case that her mother told her that she was Boonthamurra, and that her mother told her that in turn she had been told by Kitty that she (Kitty) was Boonthamurra, one would expect some independent verification of that, rather than that the records – such as they are – pointing in a different direction, and additionally or alternatively some substantive element to that information by reference to matters relating to the country which is the present claim area. Instead, what independent information there is points in a different way.

149    I am therefore not satisfied that Kitty is an apical ancestor for the Boonthamurra claim group.

(c)    Conclusion

150    I answer the questions concerning the McCarthy family as follows:

(7)    No.

(8)    On the basis that the expression “traditionally associated” conveys that those persons held under the traditional laws and customs of a relevant native title claim group native title rights and interests in the claim area of this claim:

No.

(9)    Not applicable.

FURTHER ORDERS

151    Having regard to the answers given to the questions I have addressed, in my view there is no foundation upon which the person representing the Booth/Fisher families or the McCarthy family and who are presently parties to the Boonthamurra application have any status to remain as parties.

152    Accordingly, as suggested by the State in its closing submissions (in the event that I answered the questions as I have done), pursuant to s 84(8) of the NT Act, I order that Geoffrey Booth, Dennis Fisher and Robert Burns cease to be parties to this application.

Associate:

Dated:    22 August 2014